State ex rel. Eaton Corp. v. Indus. Comm.

• Citation: 66 Ohio St.3d 180,610 N.E.2d 992
• Decision Date: 05 May 1993
• Docket Number: No. 92-713,92-713
• Parties: The STATE ex rel. EATON CORPORATION, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 180

66 Ohio St.3d 180

610 N.E.2d 992

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

No. 92-713.

Supreme Court of Ohio.

Submitted Feb. 16, 1993.

Decided May 5, 1993.

Appellee-claimant, Harold D. Derr, injured his shoulder in 1979 while in the course of and arising from his employment with appellant, Eaton Corporation, a self-insured employer. Five years later, appellant challenged appellee's entitlement to ongoing temporary total disability compensation. Pursuant to commission order, appellant continued to pay temporary total disability compensation during the ensuing administrative proceedings. Compensation was eventually paid to October 15, 1985.

On November 14, 1986, two of appellee Industrial Commission's staff hearing officers found that claimant's entitlement to temporary total disability compensation ended on September 26, 1984, the date Dr. Mark Weaver concluded that claimant's condition had become permanent. Temporary total disability compensation paid from September 27, 1984 through October 15, 1985 was declared overpaid and "recoupable by the employer pursuant to the Martin decision [State ex rel. Martin v. Connor (1984), 9 Ohio St.3d 213, 9 OBR 523, 459 N.E.2d 889]. The Commission shall process the employer's request for reimbursement from the surplus fund pursuant to the Commission['s] normal rules for same." The order was not challenged and appellant was fully repaid from the State Insurance Surplus Fund.

In the meantime, claimant applied for partial disability compensation under former R.C. 4123.57. On October 27, 1987, a district hearing officer found a twenty-three-percent permanent partial disability. The order, however, reduced the award by the amount of "any TT [temporary total disability compensation] overpaid." Since appellant had already been reimbursed from the surplus fund, claimant requested reconsideration, contesting the decision to reduce the amount of partial disability compensation by the amount of compensation previously overpaid.

Claimant prevailed, and on April 21, 1988, a staff hearing officer ordered that the words "less any TT overpaid" be stricken from the October 27, 1987 permanent partial disability order. The commission affirmed on October 20, 1988.

Claimant's decision to receive his partial disability award as impaired earning capacity benefits under former R.C. 4123.57(A) triggered a hearing on May 17, 1990. One week later, claimant submitted to the commission an affidavit that claimed an inability to work due to an alleged restriction against "raising my left arm above my waist." Appellant denies receiving a copy of the document.

The commission, without further hearing, found that claimant had sustained an impairment of earning capacity. In addition to medical evidence, the order was also partially based on the May 24, 1990 affidavit. The order explained:

" * * * that the claimant is age 64, has an 8th grade education, his former position[s] of employment include laborer, machine operator, van operator[;] and that the claimant has been out of the employment market since 1979; that claimant is restricted from work at jobs requiring raising his arm above his waist which is due to the restrictions caused by his allowed industrial injury; that the claimant sought employment * * * [but] claimant was not hired by any of the aforementioned employers.

"It is further the finding of the Commission that the claimant has no formal education for any type of work other than machine work and laborer type employment."

The commission calculated claimant's weekly rate of compensation at $43.99 by multiplying two-thirds of claimant's average weekly wage, $286.90, by claimant's twenty-three-percent medical impairment.

Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, contesting the commission's award of impaired earning capacity benefits and its refusal to reduce that award by the amount of temporary total compensation previously overpaid. The court of appeals rejected appellant's arguments and denied the writ.

This cause is now before this court upon an appeal as of right.

Willacy & LoPresti and Aubrey B. Willacy, Cleveland, for appellant.

Zwick Law Offices Co., L.P.A., and Leander P. Zwick III, Canton, for appellee Harold Derr.

Lee I. Fisher, Atty. Gen., and Dennis L. Hufstader, Asst. Atty. Gen., for appellee Indus. Com'n.

PER CURIAM.

Appellant alleges that the commission abused its discretion in both awarding impaired earning capacity benefits and refusing to reduce the award by the amount of temporary total disability compensation previously overpaid. We disagree with appellant's contentions but, upon review, find that the commission abused its discretion by calculating claimant's impaired earning capacity as it did. Accordingly, the judgment of the court of appeals is reversed in part and affirmed in part.

Appellant's initial propositions invoke res judicata in response to the commission's refusal to reduce claimant's award by the amount of temporary total disability compensation overpaid. Appellant's argument is based on the November 14, 1986 order, in which staff hearing officers, citing State ex rel. Martin, supra, found a "recoupable" overpayment of temporary total disability compensation and ordered reimbursement from the surplus fund. Appellant was fully reimbursed from the fund. On October 27, 1987, a district hearing officer--presumably unaware that appellant had been repaid--ordered permanent partial disability compensation paid "less any TT overpaid," in effect ordering claimant to reimburse appellant as well. Claimant's request for reconsideration generated an April 21, 1988 order that deleted the language ordering a setoff against previously paid benefits for temporary total disability. The commission affirmed on October 20, 1988.

Appellant claims that the April 21, 1988 order--by omitting the setoff language--impermissibly altered the November 14, 1986 order, which had become final. This action, according to appellant, violated res judicata. Appellant's argument, however, assumes that the earlier order authorized repayment from both the surplus fund and the claimant--an assumption with which we take issue.

The only express directive in the November 14, 1986 order called for repayment from the surplus fund, not from claimant. We find that the order's reference to "recoupment" and the Martin decision--on which appellant apparently relies--is insufficient to establish that the order contemplated repayment from the claimant. As to the former, the mere use of the term "recoupment" in cases dealing with repayment by a claimant does not persuade us that the term has developed a special connotation that sets it apart from synonyms such as "repayment" or "reimbursement." So, too, with Martin. While Martin factually involved repayment by a claimant, its principles extend to reimbursement from the surplus fund to self-insured employers such as appellant. State ex rel. DeLong v. Indus. Comm. (1988), 40 Ohio St.3d 345, 533 N.E.2d 729. The order's reference to Martin, therefore, does not necessarily mean that recovery from claimant was necessarily contemplated.

For these reasons, we find that the commission's April 21, 1988 and October 20, 1988 orders did not modify the November 14, 1986 final order. The later orders did not address appellant's entitlement to surplus fund reimbursement, and since repayment from the claimant was not ordered initially, the deletion of the setoff language from the October 27, 1987 order did not conflict with the earlier order. The only modification provided by the April 21, 1988 and October 20, 1988 orders was to the October 27, 1987 order, which was not final, having been kept alive by claimant's reconsideration motion. Res judicata was not, therefore, violated.

Appellant also urges vacation of the May 17, 1990 award of impaired earning capacity benefits because (1) due process was violated and (2) it is not supported by "some evidence," as State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936, demands. As to the former, we agree that claimant's submission of his May 24, 1990 affidavit to the commission after the May 17, 1990 hearing on impaired earning capacity, coupled with claimant's apparent failure to provide a copy to appellant, foreclosed response from appellant and thereby violated due process. Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc. (1974), 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447; State ex rel. Owens-Illinois, Inc. v. Indus. Comm. (1991),...