State, ex rel. Finley v. Dusty Drilling Co., Inc.

• Decision Date: 09 July 1981
• Citation: 441 N.E.2d 1128,2 Ohio App.3d 323,2 OBR 366
• Parties: , 2 O.B.R. 366 The STATE, ex rel. FINLEY, v. DUSTY DRILLING CO., INC., et al.
• Court: Ohio Court of Appeals

Page 323

2 Ohio App.3d 323

441 N.E.2d 1128, 2 O.B.R. 366

The STATE, ex rel. FINLEY, v. DUSTY DRILLING CO., INC., et al.

Court of Appeals of Ohio, Tenth District, Franklin County.

July 9, 1981.

Syllabus by the Court

1. The Due Process Clause of the Fourteenth Amendment to the United States Constitution is applicable, to some extent, in most administrative hearings.

2. Procedural due process, as it applies to administrative hearings before the Bureau of Workers' Compensation, includes the right to a reasonable notice of hearing as well as a reasonable opportunity to be heard.

Barkan & Neff Co., L.P.A., and Gus Robbins-Penniman, Columbus, for relator.

William J. Brown, Atty. Gen. and Bernard C. Fox, Jr., Cincinnati, for respondents.

STRAUSBAUGH, Presiding Judge.

This is an original action in mandamus brought by relator, Steven J. Finley, asking this court to vacate an order of the Industrial Commission dated November 13, 1978, finding that relator had been overpaid in the amount of $1,504.72.

An examination of the record in this case indicates that relator suffered an injury to his lower back while in the course of and arising out of his employment with respondent, Dusty Drilling Co., Inc., on May 7, 1976. During the investigation of the claim arising from said injury, relator stated within an affidavit submitted to the Industrial Commission that he had not received any wages or sick leave since the injury. Additionally, Donald J. Finck, office manager for Dusty Drilling Co., Inc., stated that although relator was salaried, relator would not receive sick leave, vacation money or any other such payments during the period relator was absent from work due to the back injury. As a result of a hearing held on January 3, 1978, it was ordered that relator receive temporary total disability for the period from October 29, 1977, to January 15, 1978.

Because respondent, Dusty Drilling Co., Inc., is a closely held corporation and relator is a vice-president of said company, respondent, Bureau of Workers' Compensation, requested on July 20, 1978 that an audit be initiated to determine whether relator did receive wages during the period from October 29, 1977, to January 15, 1978. The audit revealed that claimant received funds as a "cash advance" and "miscellaneous expense" during the period in question. On November 13, 1978, a hearing was held before a district hearing officer who found that relator had received substantial renumeration and ordered that an overpayment be declared in the amount of $1,504.72.

On January 11, 1979, the Columbus Regional Board of Review affirmed the decision of the district hearing officer and an appeal of that decision was refused by the Industrial Commission. In support of the petition for a writ of mandamus, relator claims that the Industrial Commission's finding of overpayment was an abuse of discretion, there being no evidence that relator received regular wages during the period in question. Relator also claims that the Industrial Commission had no jurisdiction to modify the original award of temporary total disability compensation.

A review of the record, however, raises an issue concerning the procedure invoked by the Industrial Commission for the hearing in which it was determined that relator was overpaid. After the audit of relator's record, relator received a notice of the time, date and location of the hearing in which the issue of whether relator had received wages during the period for which he received temporary total compensation would be heard. Said notice defined the subject matter of the hearing as "further consideration."

There can be no question that the Due Process Clause of the Fourteenth Amendment to the United States Constitution is applicable, to some extent, in most administrative hearings. In the case of Ohio Bell Tel. Co. v. Pub. Util. Comm. (1937), 301 U.S. 292, at 304-305, 57 S.Ct. 724 at 730-731, 81 L.Ed. 1093 the United States Supreme Court discussed the application of procedural due process protections to administrative hearings.

"Regulatory commissions have been invested with broad powers within the sphere of duty assigned to them by law. Even in quasi-judicial proceedings their informed and expert judgment exacts and receives a proper deference from courts when it has been reached with due submission to constitutional restraints. West Ohio Gas Co. v. Public Utilities Comm'n (No. 1), supra, [294 U.S. 63], p. 70 [55 S.Ct. 316 at p. 320, 79 L.Ed.2d 761]; West Ohio Gas Co. v. Public Utilities Comm'n (No. 2), 294 U.S. 79 [55 S.Ct. 324, 79...