State ex rel. Bailey v. Industrial Com'n of Ohio, 85-216

• Decision Date: 09 April 1986
• Docket Number: No. 85-216,85-216
• Citation: 23 Ohio St.3d 53,491 N.E.2d 308
• Parties: , 23 O.B.R. 127 The STATE, ex rel. BAILEY, Appellee, v. INDUSTRIAL COMMISSION OF OHIO et al.; Anchor Template Die Company, Appellant.
• Court: Ohio Supreme Court

Page 53

23 Ohio St.3d 53

491 N.E.2d 308, 23 O.B.R. 127

The STATE, ex rel. BAILEY, Appellee, v. INDUSTRIAL COMMISSION OF OHIO et al. Anchor Template Die Company, Appellant.

No. 85-216.

Supreme Court of Ohio.

April 9, 1986.

Appellee, George Bailey, worked for appellant, Anchor Template Die Company, on February 20, 1979. On that date, while engaged in production work, appellee severely injured his left hand. Subsequently, the Industrial Commission awarded appellee maximum worker's compensation benefits for that injury.

In August 1979, appellee filed an application for an additional award alleging a violation of Ohio Adm.Code Chapter 4121:1-5-09. Eleven months later appellee amended his application to allege a violation of Ohio Adm.Code Chapter 4121:1-5-10. In neither the original nor the amended application did appellee explicitly describe the details of his accident or allege that any specific provision of the cited chapter had been violated.

The commission conducted an investigation of the accident and on November 24, 1981 held a hearing at which appellee and his attorney were present. In December 1981, the commission allowed appellee's basic claim for the injury to his left hand; however, it denied his application for an additional award for violation of a specific safety requirement. The commission found that appellee's amended application for an additional award was "not sufficiently explicit to give notice [to appellant and the Industrial Commission] with respect to safety requirements that might have been violated."

Appellee filed a complaint for a writ of mandamus in the Court of Common Pleas of Franklin County in January 1982. The case was dismissed sua sponte in October 1982 due to appellee's failure to timely file a brief.

On March 30, 1984, appellee filed this mandamus action in the court of appeals, against the Industrial Commission, the Administrator of the Bureau of Workers' Compensation and appellant. Appellee requested an order compelling the commission to hold a hearing and consider the merits of his claim and to grant his requested additional award. The court of appeals granted the writ of mandamus and ordered the commission to conduct a hearing on the merits of appellee's application for an additional award.

The cause is now before this court upon an appeal as a matter of right.

Jaffy, Livorno, Kaufmann & Arnett Co., L.P.A., Stewart R. Jaffy and John F. Livorno, Columbus, for appellee.

Zellmer & Gruber and James R. Douglass, Cleveland, for appellant.

PER CURIAM.

The question presented in this appeal is whether the court of appeals erred by granting a writ of mandamus ordering the Industrial Commission to conduct a hearing on appellee's application for an additional award for a specific safety requirement violation. On an appeal as a matter of right from a judgment of the court of appeals in an action for an extraordinary writ, we must review the judgment as if the action had been originally filed with this court. State, ex rel. Halloran, v. Zapatony (1984), 15 Ohio St.3d 73, at fn. 2, 472 N.E.2d 357. The standard for review of an action in mandamus is well-established. A writ of mandamus will only issue if the party seeking the writ establishes that (1) relator has a clear legal right to relief prayed for, (2) there is a clear legal duty on respondent to act, and (3) relator has no plain and adequate remedy at law.

For the following reasons we find that appellee has not established his clear legal right to a hearing before the commission based on his application in its present form. We do find, however, that appellee has established a clear legal right to amend his application in order to comply with Ohio Adm.Code 4121-3-20, despite the running of the statute of limitations for such amendments.

In reaching the above conclusions we first examine whether appellee's application for an additional award was specific enough to put appellant and the commission on notice as to which safety requirements were allegedly violated. Ohio Adm.Code 4121-3-20 sets forth procedural requirements concerning applications for specific safety requirement violations as follows:

"(A) An application for an additional award of compensation founded upon the claim that the injury * * * resulted from the failure of the employer to comply with * * * [a] specific [safety] requirement * * * must be filed * * * with the industrial commission, within two years of the injury * * *. Such applications should set forth the facts which are the basis of the alleged violation and shall cite the section or sections of the law or code of specific safety requirements which it is claimed have been violated. * * *

" * * *

"(D) * * * Within thirty days from the receipt of the investigation report, the claimant may amend his application to include any violation demonstrated by the investigation, but in no event more than two years from the date of the injury."

This court in State, ex rel. Dillon, v. Dayton Press, Inc. (1983), 6 Ohio St.3d 295, 453 N.E.2d 566, interpreted the above provisions and concluded that it is not essential to the procedural validity of an application for an additional award that the application cite by number a specific Ohio Administrative Code sec...