State ex rel. Cox v. Industrial Commission

• Decision Date: 15 July 1981
• Docket Number: No. 80-1527,80-1527
• Citation: 423 N.E.2d 441,67 Ohio St.2d 235
• Parties: , 21 O.O.3d 147 The STATE, ex rel. COX, Appellee and Cross-Appellant, v. INDUSTRIAL COMMISSION et al., Appellants and Cross-Appellees.
• Court: Ohio Supreme Court

Page 235

67 Ohio St.2d 235

423 N.E.2d 441, 21 O.O.3d 147

The STATE, ex rel. COX, Appellee and Cross-Appellant, v. INDUSTRIAL COMMISSION et al., Appellants and Cross-Appellees.

No. 80-1527.

Supreme Court of Ohio.

July 15, 1981.

Syllabus by the Court

1. R.C. 4121.06(A) provides an alternative adjudicative procedure to R.C. 4121.35 to hear applications for "additional awards" for violation of specific safety requirements.

2. When the order of a staff hearing officer of the Industrial Commission is approved and confirmed by the commission according to the terms of R.C. 4121.06(A), it is an order of the commission from which there is no further administrative appeal as of right.

3. To be a proper order of the Industrial Commission, entered pursuant to R.C. 4121.06(A), the record must show that a majority of the commission could reasonably have based their approval and confirmation of the staff officer's order upon evidentiary matters within the record.

Appellee and cross-appellant, Edna D. Cox ("appellee"), was employed by appellant and cross-appellee Inland Division of General Motors Corporation ("Inland"). In the course of her employment, appellee was injured. Appellee filed for a workers' compensation award which was granted. Subsequently, appellee filed an application with appellant and cross-appellee Industrial Commission ("commission"), requesting an additional award for violation of a specific safety requirement by Inland.

After an investigation by a member of the commission's staff, the application for an additional award was heard by a staff hearing officer. The hearing officer denied appellee's application because "there is no specific safety requirement adopted by the General Assembly or the Industrial Commission of Ohio which was violated when claimant sustained the injuries of record." Pursuant to the commission's interpretation of R.C. 4121.06(A), and Ohio Adm. Code 4121-3-20(F), which was in effect at the time, the hearing officer's decision was reviewed by the commission and a majority of the members of the commission approved the decision of the hearing officer. Appellee's application was denied.

Appellee filed a motion for rehearing as authorized by Ohio Adm. Code 4121-3-20(G). The motion was denied on the basis that the appellee had failed to file any new or additional evidence as provided by the rule.

Appellee then initiated this action against Inland and the commission in the Court of Appeals for Franklin County. Appellee requested a writ of mandamus directing the commission to afford her an appeal "of right," as provided in R.C. 4121.35(C). In the alternative, appellee requested a writ of mandamus directing the commission to find that her injuries were caused by Inland's failure to comply with specific safety requirements.

The Court of Appeals issued a writ directing the commission to grant appellee an appeal from the denial of her application for an additional award. The court denied a writ on the second ground because it was unable to ascertain from the record whether the commission had abused its discretion in refusing to grant appellee an additional award.

The commission and Inland appeal that portion of the Court of Appeals' judgment ordering the commission to allow appellee an appeal. Appellee appeals that portion of the judgment which did not find the commission to have abused its discretion by refusing appellee an additional award.

The cause is now before this court upon an appeal and cross-appeal as of right.

E. S. Gallon & Associates, L.P.A., Dayton, and Jeffrey V. Nackley, Columbus, for appellee and cross-appellant.

William J. Brown, Atty. Gen., and Thomas

E. Skilken, Dayton, for appellant and cross-appellee Industrial Commission.

Smith & Schnacke, L.P.A., Gary W. Auman and Jennifer A. Cox, Dayton, for appellant and cross-appellee Inland.

HOLMES, Justice.

First, it must be noted that the Court of Appeals held Ohio Adm. Code 4121-3-18(A)(1)(b) ¹ invalid as being in conflict with R.C. 4121.35(C), whereas, as stated, the rule which was in effect at the time of this matter was 4121-3-20(F). ² However, it appears that the same basic procedures were followed under the old rule as now under the new rule, and the underlying issue remains as to whether either rule, in the furtherance of the provisions of R.C. 4121.06(A), conflicts with R.C. 4121.35(C).

In issuing its writ of mandamus, the Court of Appeals held that R.C. 4121.35(C) mandates an appeal of right to the commission from a staff hearing officer's decision denying an additional award. R.C. 4121.35(A) authorizes the appointment of staff hearing officers by the commission to hear and decide matters over which the commission has original jurisdiction. Included in the matters which may be heard and decided by a staff hearing officer are applications for additional awards for violation of a specific safety requirement. R.C. 4121.35(B)(4). R.C. 4121.35(C) reads:

"Staff hearing officers shall hold hearings on all matters referred to them for hearing. Hearing procedures shall conform to the rules of the commission as to notice, records, and the form of the decision. Any person adversely affected by a decision of a staff hearing officer on a matter of original jurisdiction under divisions (B)(1) to (4) of this section may of right appeal that decision directly to the industrial commission."

Applying R.C. 4121.35(C) alone, there would appear to be an appeal of right to the commission from a decision of a staff hearing officer. However, the commission and Inland (appellants) argue that there is an alternative method that the commission may employ to resolve matters such as the present one. They argue that when this method is employed there is no appeal to the commission.

The alternative method is an application of R.C. 4121.06(A) which provides, in part:

" * * * Any investigation, inquiry, or hearing which the commission is authorized to hold or undertake may be held or undertaken by or before any one member of the commission, or by or before one of the deputies of the commission except as otherwise provided in Chapters 4121 and 4123 of the Revised Code, and every order made by a member, or by a deputy, when approved and confirmed by a majority of the members, and so shown on its record of proceedings, is the order of the commission."

The argument of the appellants is that since the staff hearing officer's decision was approved and confirmed by a majority of the commission's members, the staff hearing officer was acting as a deputy and his decision was the order of the commission. Appellants further say that since the decision was the order of the commission, there can be no appeal to the commission because R.C. 4121.35(C) provides for an appeal only from the decision of a staff hearing officer.

Appellee argues that R.C. 4121.06(A) is not applicable to a request for an additional award for a violation of a specific safety requirement. Appellee points out that R.C. 4121.06(A) is limited by its own language to matters "except as otherwise provided in Chapters 4121 and 4123 * * *." Appellee continues that since R.C. 4121.35 provides an alternative procedure for the resolution of matters such as the present one, R.C. 4121.06(A) does not apply.

We agree with the position of appellants. The language in R.C. 4121.35, by which the commission delegates its adjudicative functions to staff hearing officers in matters over which the commission has original jurisdiction, is permissive, ³ not mandatory. The commission, at its discretion, may appoint a staff hearing officer to hear certain matters on his own without the requirement that the commission approve and confirm the staff hearing officer's decisions. Subsection (B)(4) specifically authorizes applications for additional awards for violations of specific safety requirements to be heard by staff hearing officers. If this approach is taken by the commission, procedural safeguards are provided the claimants by R.C. 4121.35(C) which grants a right of appeal of these decisions to the Industrial Commission.

It is argued by the appellee that the right of a deputy to hear applications for "additional award" cases is excepted by the language of R.C. 4121.06(A), which reads "except as otherwise provided in Chapters 4121 and 4123." The appellants point out that this "excepting" language was placed in S.B. No. 545, the so-called omnibus workers' compensation reform bill, to accommodate the provisions of R.C. 4121.34 which granted certain original jurisdiction powers of the commission to district hearing officers. Appellants state that this qualifying amendment to R.C. 4121.06(A) pertains to the delegation of the commission's adjudicative function rather than the procedural safeguards of appeal afforded the parties.

We are in agreement with the appellants in this regard. We conclude that the qualifying language modifies the clause which grants the commission the power to delegate its adjudicative function. The qualification would seem to be reasonably necessitated by the grant of original jurisdiction to district hearing officers pursuant to R.C. 4121.34.

Based upon the foregoing, we hold that R.C. 4121.06(A) and 4121.35 may be utilized in the alternative by the Industrial Commission in the hearing of additional awards for specific safety violations and hold that Ohio Adm. Code 4121-3-18(A)(1)(b) and 4121-3- 20(D), (E), (F) and (G) comport with R.C. 4121.06(A), and when these procedural provisions are followed by the Industrial Commission the provisions of R.C. 4121.35(C) do not apply.

Next we must decide whether the commission abused its discretion in not finding that appellee's injuries were caused by Inland's violation of a specific safety requirement.

Appellee's complaint alleges that her injuries resulted from Inland's failure to comply with regulations IC-5-03.05(A) and IC-5-03.06(B), requiring guards to protect workers from machinery. ⁴ Specifically, appellee...