State ex rel. Royal v. Indus. Comm., 00-2317.

Decision Date24 April 2002
Docket NumberNo. 00-2317.,00-2317.
Citation766 NE 2d 135,95 Ohio St.3d 97
CourtOhio Supreme Court

Ward, Kaps, Bainbridge, Maurer & Melvin and Thomas H. Bainbridge, for appellee.

Betty D. Montgomery, Attorney General, and Stephen D. Plymale, Assistant Attorney General, for appellant Industrial Commission of Ohio.

Vorys, Sater, Seymour & Pease, L.L.P., Bradley K. Sinnott and Corrine S. Carman, for appellant Wheeling-Pittsburgh Steel Corporation.

Per Curiam.

All agree that appellee-claimant Gerald Royal's two industrial injuries have left his right arm barely functional. In 1996, he moved appellant Industrial Commission of Ohio for compensation for permanent total disability ("PTD"). A year later, a staff hearing officer ("SHO") granted that application.

Appellant-employer Wheeling-Pittsburgh Steel Corporation timely sought reconsideration, alleging that the SHO had (1) misread certain medical and vocational reports and (2) equated loss of use in one arm with statutory PTD. Reconsideration was denied on October 28, 1997, because the request did not meet the criteria of commission resolution No. R95-1-09.

Wheeling-Pittsburgh responded with a motion for reconsideration of the denial of the first motion for reconsideration. Restating its earlier position, Wheeling-Pittsburgh claimed that its first motion satisfied R95-1-09(D)(1)(a).

On December 8, 1997, the commission granted reconsideration "based on the possibility of an error in the previous Industrial Commission order." It vacated the earlier denial of reconsideration and set the matter for hearing on the merits of the PTD claim. Claimant, in turn, moved to vacate the grant of reconsideration.

A bifurcated hearing on March 3, 1998, addressed both the propriety of reconsideration and the merits of the PTD claim. Two identically dated orders emerged from those proceedings. In the first order, the commission affirmed the grant of reconsideration based on the presence of a mistake of law or fact, citing R95-1-09(D)(1)(d). It identified the mistakes as (1) the SHO's misrepresentation of a particular vocational report and (2) the absence of an analysis of nonmedical disability factors.

That decision was not unanimous. A dissenting commissioner felt that the December 8, 1997 reconsideration order did not satisfy State ex rel. Nicholls v. Indus. Comm. (1998), 81 Ohio St.3d 454, 692 N.E.2d 188, or State ex rel. Foster v. Indus. Comm. (1999), 85 Ohio St.3d 320, 707 N.E.2d 1122. He criticized the order's reliance on the mere "possibility of an error," objecting that "[t]here was no indication what the error was or even which Commission order contained an error, the 10/28/97 order or the 9/24/97 order."

The denial of PTD and a declaration of overpayment in the second order prompted claimant to file a complaint in mandamus in the Court of Appeals for Franklin County. The magistrate found that reconsideration had been proper, but the appeals court disagreed. The former recommended a holding that Wheeling-Pittsburgh's motions had adequately apprised claimant of the issues on which reconsideration was sought. The court of appeals, on the other hand, focused on the Nicholls/Foster prohibition against such vague language as "possibility of an error." It found no "clear error" within the employer's motions so as to permit the commission to later rehabilitate its original deficient order. Mandamus was accordingly granted. This cause is now before this court upon an appeal as of right.

Reconsideration jurisdiction derives from the commission's general grant of continuing jurisdiction under R.C. 4123.52. Because neither R.C. 4123.52 nor commission resolution R95-1-09 prohibits multiple requests for reconsideration, controversy hinges on the justification for its exercise—here, the nebulous "possibility of an error."

Continuing jurisdiction cannot be exercised indiscriminately. We have previously enumerated several acceptable bases for its exercise. We have also expressly ruled that "possibility of error" is not one of them. Nicholls; Foster, supra. Appellants concede this, but offer two responses: (1) identification of the error in a later order cures the defect, and (2) even if not, Wheeling-Pittsburgh's motions adequately apprised the claimant of the bases on which reconsideration was sought. Both arguments fail.

Nicholls and Foster recognized that a reference to the possibility of unspecified error was meaningless and prevented both effective rebuttal and judicial review. As we observed in Nicholls:

"Continuing jurisdiction is not unlimited. Its prerequisites are (1) new and changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5) error by inferior tribunal.

"None of these prerequisites exists here. Again, there has been no allegation of new and changed circumstances or fraud. There is also no clear error of any kind. The reconsideration order cites only the possibility of error, and an unspecified error at that.

"Our approval of the staff hearing officers' order on reconsideration would effectively give the commission unrestricted jurisdiction. Error is always possible, and its existence cannot be refuted when the commission is not made to reveal what the perceived error is. We find, therefore, that the mere possibility of unspecified error cannot sustain the invocation of continuing jurisdiction." (Emphasis sic; citations omitted.) Nicholls, supra, 81 Ohio St.3d at 458-459, 692 N.E.2d 188.

Foster went further:

"In this case, the commission abandoned conjecture and found that there was error. But, again, it does not...

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  • State ex rel. Lynch v. Indus. Comm.
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    ...reconsideration can prepare a meaningful defense to the assertion that continuing jurisdiction is warranted." Id. at ¶ 15; Royal, 95 Ohio St.3d at 100, 766 N.E.2d 135. The identification and explanation of the prerequisite upon which continuing jurisdiction is sought "also permit[] a review......
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    ...evaluated if the commission does not reveal, in a meaningful way, why it was exercised.' " (Emphasis added.) State ex rel. Royal v. Indus. Comm., 95 Ohio St.3d 97, 2002-Ohio-1935, quoting State ex rel. Foster v. Indus. Comm., 85 Ohio St.3d 320, 322 (1999). In cases such as this, where the r......
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