State, ex rel. Gordon, v. Indus Comm.

• Decision Date: 15 April 1992
• Docket Number: No. 90-2104,90-2104
• Citation: 588 N.E.2d 852,63 Ohio St. 3d 469
• Parties: The STATE, ex rel. GORDON, Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant, et al.
• Court: Ohio Supreme Court

Page 469

63 Ohio St.3d 469

588 N.E.2d 852

The STATE, ex rel. GORDON, Appellee, v.INDUSTRIAL COMMISSION OF OHIO, Appellant, et al.

No. 90-2104.

Supreme Court of Ohio.

Submitted Jan. 7, 1992.

Decided April 15, 1992.

Richard M. Stein Co., L.P.A., and Richard M. Stein, Columbus, for appellee.

Lee I. Fisher, Atty. Gen., and Jeffery W. Clark, Columbus, for appellant.

PER CURIAM.

Claimant successfully argued below that continuing jurisdiction was not invoked within a reasonable time.The commission claims that invocation was timely, given the commission's ongoing efforts to correct the overpayment amount.For the reasons to follow, we affirm the appellate court's judgment.

R.C. 4123.52 provides:

"The jurisdiction of the industrial commission over each case shall be continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified."

Continuing jurisdiction is not unlimited.Preliminarily, there must be a showing of: (1) new and changed conditions subsequent to the initial order (State, ex rel. Cuyahoga Hts. Bd. of Edn., v. Johnston[1979], 58 Ohio St.2d 132, 12 O.O.3d 128, 388 N.E.2d 1383); (2) fraud (State, ex rel. Kilgore, v. Indus. Comm.[1930], 123 Ohio St. 164, 9 Ohio Law Abs. 62, 174 N.E. 345); or (3) clerical error (State, ex rel. Weimer, v. Indus. Comm.[1980], 62 Ohio St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149).More recently, we expanded the list to include an error made by an inferior tribunal.State, ex rel. Manns, v. Indus. Comm.(1988), 39 Ohio St.3d 188, 529 N.E.2d 1379.

Claimant persuasively challenges the existence of any of these prerequisites in this case.Neither fraud nor clerical error has been alleged.Evidence of new and changed circumstances is also lacking, since evidence of a possible district hearing officer miscalculation was contemporaneous with, not subsequent to, the district hearing officer's 1984 order.It must be stressed that at the time the district hearing officer calculated the overpayment amount, there were two 1982 commission/bureau memos that set claimant's overpayment at $6,833.61 and $8,977.90, respectively.Thus, immediately upon issuance of the district hearing officer's order, there was evidence suggesting that his computation was incorrect.

Relying on Manns, supra, the commission argues that the district hearing officer's calculation "error" is sufficient to invoke continuing jurisdiction.We are not persuaded.The record currently contains at least six different overpayment calculations ranging from the district hearing officer's low of $4,455 to a high of $8,977.Since the commission and bureau apparently do not know the right amount, we view suspiciously their adamant claim that the district hearing officer's figure is wrong.

Assuming arguendo that one of the preliminary conditions for continuing jurisdiction exists, the commission abuses its discretion when it fails to exercise its continuing jurisdiction within a reasonable time.State, ex rel. Gatlin, v. Yellow Freight System, Inc.(1985), 18 Ohio St.3d 246, 18 OBR 302, 480 N.E.2d 487.Reasonableness depends on the circumstances of each case.In this...