State ex rel. O.M. Scott & Sons Co. v. Industrial Com'n of Ohio, 86-463

• Decision Date: 26 December 1986
• Docket Number: No. 86-463,86-463
• Court: Ohio Supreme Court
• Parties: , 28 O.B.R. 406 The STATE, ex rel. O.M. SCOTT & SONS CO., Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant.

Page 341

28 Ohio St.3d 341

503 N.E.2d 1032, 28 O.B.R. 406

The STATE, ex rel. O.M. SCOTT & SONS CO., Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant.

No. 86-463.

Supreme Court of Ohio.

Dec. 26, 1986.

Syllabus by the Court

A decision of the Industrial Commission in an injury or occupational disease case, ordering that the compensation to which a claimant has been deemed entitled be paid by the self-insurer rather than by the State Insurance Fund, is appealable to the common pleas court under R.C. 4123.519, and may form the basis for a declaratory judgment action under R.C. Chapter 2721.

The relator-appellee, O.M. Scott & Sons Company, is engaged in the manufacture of chemical fertilizer. The claimant, Lloyd R. Gordon, was an employee of relator from 1967 until 1977, when he became disabled. Prior to January 1, 1976, relator participated in the State Insurance Fund. It became a self-insurer on January 1, 1976.

During claimant's employment with relator, he worked at various jobs within relator's plant which exposed him to different levels of an asbestos-like fiber, tremolite. Tremolite is a contaminate of vermiculite ore, which is an ingredient used in relator's chemical fertilizer. Inhalation of tremolite fibers is known to cause pleural effusion, a disabling condition in which the lining of the chest cavity, the pleura, becomes filled with fluid.

Claimant's employment with relator can be divided into two periods. From January 23, 1967 to February 22, 1971, claimant's exposure to tremolite fibers was heaviest. Evidence presented by relator tended to show that claimant's exposure to tremolite decreased steadily over his ten-year employment period, and decreased significantly beginning in 1971. However, it is undisputed that claimant was nevertheless exposed to low levels of tremolite until 1977, when it was discovered that he was suffering from benign pleural effusion.

On September 26, 1980, claimant filed an application with the Industrial Commission asserting that he had contracted an occupational disease in the course of and arising out of his employment with relator. On January 20, 1983, the district hearing officer issued an order allowing the claim and awarding temporary total compensation. The order further provided that:

"It is the finding of the hearing officer that the claim was properly charged to the self-insured employer for the reason that the claimant's last injurious exposure to the occupational disease causing agent * * * [tremolite] occurred when the employer was self-insured. * * * "

Both parties appealed the order of the hearing officer to the regional board of review, which affirmed the order in all respects on April 25, 1983. An appeal to the Industrial Commission followed, which essentially affirmed the order of the board.

Relator then filed the present action in the court of appeals seeking a writ of mandamus directing that Gordon's claim be charged against the State Insurance Fund. Relator did not dispute the allowance of the claim. The court resolved the threshold concern of whether mandamus is the appropriate means for testing this particular order by declaring the question "moot" on the basis that the parties had agreed that mandamus was the proper vehicle. Proceeding to the merits, the court of appeals found that relator was a complying employer in the State Insurance Fund at the time the claim arose, and granted relator's writ directing that the claim be charged against the state fund.

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

Gingher & Christensen, John M. Mahota and Randall S. Rabe, Columbus, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson and Richard C. Slavin, Columbus, for appellant.

CLIFFORD F. BROWN, Justice.

The threshold issue which must be addressed in this cause is whether relator has established the prerequisites essential to the issuance of a writ of mandamus. For the following reasons, we hold that relator has not sustained the burden imposed in mandamus actions, and that the writ must therefore be denied.

It has long been settled that in order for a relator to establish entitlement to the issuance of a writ of mandamus, he must demonstrate: (1) that he has a clear legal right to the relief prayed for; (2) that the respondent is under a clear legal duty to perform the requested act; and (3) that the relator has no plain and adequate remedy in the ordinary course of law. State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42, 399 N.E.2d 81 , paragraph one of the syllabus; State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 29, 451 N.E.2d 225.

The phrase "plain and adequate remedy in the ordinary course of the law" includes in its scope the remedy of an appeal of a decision of the Industrial Commission to the court of common pleas under R.C. 4123.519. State, ex rel. Foley, v. Greyhound Lines (1968), 16 Ohio St.2d 6, 9, 241 N.E.2d 904 , overruled on other grounds, State, ex rel. Bosch, v. Indus. Comm. (1982), 1 Ohio St.3d 94, 438 N.E.2d 415. When such an appeal is available to relator, mandamus will not lie. State, ex rel. Benton, v. Columbus & Southern Ohio Electric Co. (1968), 14 Ohio St.2d 130, 237 N.E.2d 134 , paragraph one of the syllabus. For the reasons that follow, we hold that the order sub judice is appealable to the common pleas court under the above statute.

R.C. 4123.519 provides in pertinent part:

"The claimant or the employer may appeal a decision of the industrial commission or of its staff hearing officer made pursuant to division (B)(6) of section 4121.35 of the Revised Code in any injury or occupational disease case, other than a decision as to the extent of disability, to the court of common pleas * * *."

Thus, any order of the commission may be appealed to the court of common pleas by either party unless the order pertains to the extent of disability. The decision sub judice, ordering that the source of claimant's compensation shall be the self-insurer rather than the State Insurance Fund, does not relate in any way to the extent of claimant's disability. It follows that the order is appealable under R.C. 4123.519, and that mandamus is not a proper vehicle to test the decision.

This holding finds support in the relevant case law. In analyzing the problem of what constitutes a decision as to the extent of disability, this court has stated that "[t]he decision of the Industrial Commission as to 'extent of disability' constitutes a determination of the basis for the computation of the compensation or benefits payable under the provisions of the workers' compensation law for those losses or impairments of bodily functions allowed as compensable injuries." Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, 384 N.E.2d 693 , paragraph two of the syllabus. Cf. State, ex rel. Bosch, supra, at the syllabus (an order relating to the computation of benefits owed claimant is a decision as to the extent of disability and is unappealable).

We are aware that this court has often determined appealability based on whether the decision affects the claimant's right to participate in the state fund. See,...