State ex rel. Ross v. Indus. Comm., 96-2388

Decision Date20 January 1999
Docket NumberNo. 96-2388,96-2388
Citation703 N.E.2d 1276,84 Ohio St.3d 364
PartiesThe STATE ex rel. ROSS, Appellant and Cross-Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellee and Cross-Appellant; M.J. Construction Company, Appellee.
CourtOhio Supreme Court

A commission district hearing officer ("DHO") held a hearing on the claim on March 6, 1990. On March 15, 1990, Inland's counsel, at the DHO's request, sent the DHO a letter containing Pioneer's last known address. Counsel stated that the "last known address for Mr. Ross' prior employer, Pioneer Contracting Company, is c/o MJ Contracting, P.O. Box 775, Chagrin Falls, Ohio 44022." Ross's counsel also received a copy of the letter. Thus began this case's slide into confusion.

In an order dated August 29, 1990, the DHO denied Ross's claim against Inland:

"Claimant's death by leukemia was not the result nor accelerated by his exposure to asphalt while working for Inland Refuse Transfer. This, based on the medical proof on file and specifically on Dr. Berman's 8-14-90 report.

"Claim is disallowed."

The widow-claimant appealed. At the April 24, 1991 regional board hearing, widow-claimant allegedly made an oral amendment to her death claim, asserting that decedent's death did not arise out of his employment with Inland, but instead arose out of his employment with appellee M.J. Construction Company ("M.J. Construction"). Her amendment was based on the misconception, first enunciated in the March 15, 1990 letter to the DHO, that M.J. Construction was a successor to Pioneer. As a result of the amendment, the board referred the claim to a DHO "for a determination as to the culpability of M.J. Construction."

At the June 11, 1991 hearing on that matter, the confusion created by the March 15, 1990 letter continued. The DHO pointed to the letter as proof that M.J. Construction was Pioneer's successor:

"Further, this District hearing officer finds that Pioneer Contracting Corporation underwent a name change in 1983 to M.J. Construction Company as verified by the employer's letter in file dated 3-15-90 and as testified to at hearing."

Still, the hearing, at its heart, concerned Ross's employment at Pioneer and how that employment caused an occupational disease. The hearing officer held that "[t]he application for death benefits * * *, as to M.J. Construction Company fna Pioneer Contracting Corporation is granted * * *." (Emphasis added.) The hearing officer's findings were based upon Ross's work for Pioneer:

"That the death claim, as to M.J. Construction Company, fna Pioneer Contracting Corporation, be allowed based upon the report of Doctor Tirgan.

"That the district hearing officer finds, from the proof on file, that decedent was an employee of Pioneer Contracting Corporation from approximately 1963 through October of 1983 in various capacities of the asphalt business * * *. During the course and scope of decedent's employment with Pioneer, he was exposed to the asphalt which is dolzel & petroleum fumes which lead to 'acute myelogenous leukemia and bone marrow fibrosis' and ultimately resulted in his death." (Emphasis added.)

Despite the fact that M.J. Construction was not provided with notice of the hearing and was unrepresented, the DHO allowed the claim against M.J. Construction, based upon its "successor" relationship to Pioneer.

The order was not appealed.

The Bureau of Workers' Compensation began paying death benefits to claimant and charging them against M.J. Construction's risk. The latter action was the first knowledge that M.J. Construction had of a death claim being assessed against it. M.J. Construction accordingly petitioned the commission for relief pursuant to R.C. 4123.522, which permits a belated appeal by a party who was entitled to, but did not receive, notice of a hearing. The commission granted M.J. Construction's motion, thereby permitting it to appeal the June 11, 1991 DHO order.

In the appeal that followed, a brief filed on behalf of M.J. Construction Company and M.J. Contracting Corporation untangled their relationship with Pioneer. While there was common ownership between Pioneer and the M.J. companies, they were involved in different businesses. Pioneer ceased doing business in 1986. Its tangible personal property was sold at public auction. Inland bought Pioneer's real estate and asphalt plants. Michael R. Vitale ("M") and John M. Bass ("J") had owned Pioneer. They also owned M.J. Contracting Corp., a condominium developer, together. Vitale's daughter and son-in-law own M.J. Construction Co., a home builder. Thus, while Pioneer had some tangential relationship to M.J. Contracting Corp. and M.J. Construction Co., neither of those companies was a direct successor.

As a result, a staff hearing officer found on March 14, 1995:

"The order of the District hearing officer dated 6-11-91 is vacated.

"The Staff Hearing Officer finds that Patrick Ross was never an employee of M.J. Construction Co. The application for death benefits is, therefore, denied as the decedent's death was not the result of an occupational disease contracted in the course and scope of employment with M.J. Construction Co. * * *"

Claimant's appeal to the commission was refused.

Claimant appealed the order to the Cuyahoga County Common Pleas Court pursuant to R.C. 4123.512. Six months later, she commenced an action in mandamus in the Court of Appeals for Franklin County, contesting the same order. Claimant's notice of dismissal without prejudice was filed in common pleas court a short time later. She has apparently refiled her appeal and that matter is pending.

In the instant mandamus action, the commission and M.J. Construction filed motions to dismiss, alleging that the issue before the commission was one of "right to participate," giving claimant an adequate remedy at law via appeal of the common pleas court decision. The court of appeals agreed and dismissed the action. This court, in a July 29, 1998 decision, relied as the appellate court had on the case of State ex rel. Burnett v. Indus. Comm. (1983), 6 Ohio St.3d 266, 6 OBR 332, 452 N.E.2d 1341, and affirmed the court of appeals.

This cause is now before this court upon a motion for reconsideration.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus; Shapiro, Kendis & Associates Co., L.P.A., Cleveland, and Rachel B. Jaffy, Columbus, for appellant and cross-appellee.

Betty D. Montgomery, Attorney General, and Craigg E. Gould, Assistant Attorney General, for appellee and cross-appellant Industrial Commission.

Lustig, Icove & Lustig Co., L.P.A., and Matthew Harris Lucas, Cleveland, for appellee M.J. Construction Co.

PFEIFER, Justice.

For the following reasons, we grant appellant's motion for reconsideration and reverse the judgment of the court of appeals.

One issue is presented: Does claimant have an adequate remedy at law via an R.C. 4123.512 appeal? We find that she does not, and that mandamus is appropriate.

In Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175, this court set forth the parameters of when an appeal to the...

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6 cases
  • State ex rel. Liposchak v. Indus. Comm.
    • United States
    • Ohio Supreme Court
    • 15 November 2000
    ...to participate. Id. at 414, 696 N.E.2d at 588. Though Ross I was reversed on reconsideration in State ex rel. Ross v. Indus. Comm. (1999), 84 Ohio St.3d 364, 703 N.E.2d 1276 ("Ross II"), Ross II reiterated that "only decisions involving a claimant's right to participate in the fund could be......
  • State Ex Rel. Vill. of Oakwood v. Indus. Comm'n of Ohio
    • United States
    • Ohio Court of Appeals
    • 2 December 2010
    ...should be is an issue to be decided in a mandamus proceeding, not an appeal de novo under R.C. 4123.512. State, ex rel. Ross, v. Industrial Commission (1999), 84 Ohio St.3d 364 [, 703 N.E.2d 1276]. {¶ 29} Mandamus will not issue where the relator has a plain and adequate remedy at law. Stat......
  • Young v. Craig Transp. Co.
    • United States
    • Ohio Court of Appeals
    • 31 March 2016
    ...in mandamus, not through an appeal. See State ex rel Liposchak, supra at 280, 737 N.E.2d 519, citing State ex rel. Ross v. Indus. Comm., 84 Ohio St.3d 364, 369, 703 N.E.2d 1276 (1999). ...
  • State ex rel. Abex Corp./Electro Alloys Div. V. Indus. Comm. of Ohio, 2005 Ohio 6960 (OH 12/29/2005)
    • United States
    • Ohio Supreme Court
    • 29 December 2005
    ...finding that question as to the employer to be charged was not an appropriate question for appeal). {¶16} In State ex rel. Ross v. Indus. Comm. (1999), 84 Ohio St.3d 364, 368, the court explained that "[t]he decision in Burnett was indeed about decedent's right to participate. He had not pr......
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