State ex rel. Burnett v. Industrial Com'n of Ohio

• Decision Date: 24 August 1983
• Docket Number: No. 82-1254,82-1254
• Parties: , 6 O.B.R. 332 The STATE, ex rel. BURNETT, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
• Court: Ohio Supreme Court

Page 266

6 Ohio St.3d 266

452 N.E.2d 1341, 6 O.B.R. 332

The STATE, ex rel. BURNETT, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.

No. 82-1254.

Supreme Court of Ohio.

Aug. 24, 1983.

Appellant, Dorothy Burnett, is the surviving spouse of Orville E. Burnett, who was employed as a construction pipefitter from 1946 to 1977. Burnett worked through a union hall and was hired by numerous employers for varying periods of time. It is alleged that Mr. Burnett was required to work with and around asbestos which was used as insulation on pipes and that most, if not all of the employers for whom he worked, were amenable to Ohio's workers' compensation laws.

In November 1977, Burnett was diagnosed as having asbestosis and was unable to continue working. At the time, he had been employed by appellee Peck-Hannaford & Briggs Co. ("Peck-Hannaford") for five and one-half months. He filed an occupational disease claim with appellee Industrial Commission of Ohio ("commission"). The Claimant's Report of Occupational Disease form filed by Burnett requested the names and addresses of all other employers and dates of employment where he was exposed to the substance which allegedly caused his disease. Burnett responded to that request as follows: "After 31 + years in this business and working for an untold number of employers per year this would be a great task and would take some time to accomplish. All work was performed for Hamilton & Cinti [sic ] contractors."

On July 2, 1978, before Burnett's claim had been ruled upon by the commission, he died of mesothelioma, a form of cancer caused by exposure to asbestos fibers. In August 1978, appellant filed a claim for death benefits which was consolidated with her husband's prior claim. One of the application forms requested the names and addresses of Burnett's employers during the five years preceding his death. Appellant left that item blank. Apparently, the commission never requested appellant to furnish further information concerning her husband's employers, and after a hearing on December 26, 1979, the claim for death benefits was allowed. The regional board of review affirmed the order.

Upon appeal to the commission, Peck-Hannaford presented statements and affidavits of its employees stating that Burnett was not exposed to asbestos at any of the jobs he performed during his five and one-half months of employment with them. The commission reversed the award and denied the death claim "* * * for the reason that claimant had no exposure to asbestos during the course of his employment with the subject employer."

Appellant timely filed appeals pursuant to R.C. 4123.519 in the Court of Common Pleas of Hamilton County and the Court of Common Pleas of Butler County which are pending.

On February 19, 1982, appellant brought this action in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in failing to conduct an investigation to determine whether Burnett was exposed to asbestos during any employment prior to his death. She requested that a writ issue to compel the commission to conduct such an investigation and thereafter, redetermine the death claim application.

The court of appeals denied the writ and the cause is now before the court upon an appeal as of right.

Clayman & Jaffy Co., L.P.A., Stewart R. Jaffy and John F. Livorno, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and James E. Davidson, Asst. Atty. Gen., for appellees Industrial Com'n...