State ex rel. Vaughn v. Industrial Commission of Ohio

• Decision Date: 03 February 1982
• Docket Number: No. 81-656,81-656
• Parties: , 23 O.O.3d 161 The STATE ex rel. VAUGHN, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
• Court: Ohio Supreme Court

Page 115

69 Ohio St.2d 115

430 N.E.2d 1332, 23 O.O.3d 161

The STATE ex rel. VAUGHN, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.

No. 81-656.

Supreme Court of Ohio.

Feb. 3, 1982.

E. S. Gallon & Assoc. Co., L.P.A., and John A. Cervay, Dayton, for appellant.

William J. Brown, Atty. Gen., and Nancy J. Miller, Columbus, for appellee Industrial Commission.

William C. Buckham, Columbus, for appellee Commercial Motor Freight, Inc.

PER CURIAM.

Appellant contends that compensation, pursuant to the December 20, 1973 order of the board of review, remains unpaid. The order, in pertinent part, provides:

"This claim * * * is granted to the extent that employer is to compensate claimant for Temporary Total Disability from August 24, 1966 through March 31, 1968, July 1, 1968 through February 3, 1969, March 25, 1969 through May 30, 1969 and October 1, 1970 through March 31, 1974 with credit to be taken for benefits paid during such periods."

In July 1974, Commercial paid $5,646 for temporary total disability, which constituted payment through May 30, 1969. Appellant argues that the remaining compensation from October 1, 1970 through March 31, 1974, at the rate of $49 per week, totals $8,918 and not the $5,104 paid by the employer during the pendency of this action. Thus, appellant claims a deficiency of $3,814.

In 1966, R. C. 4123.56 ¹ imposed a statutory ceiling for temporary total disability at $10,750. The record demonstrates that appellant has received precisely this amount. "(T)he maximum amount of (workmen's) compensation to which claimant is entitled is a substantive right and is governed by the statutory law in effect on the date of injury." State, ex rel. Frank v. Keller (1965), 3 Ohio App.2d 428, 430, 210 N.E.2d 724. See, also, Young, Workmen's Compensation Law in Ohio (2 Ed.), 124, Section 7.1.

Therefore, regardless of the manner in which appellant wishes to characterize the order of the board of review, that order cannot exceed the statutory maximum for which appellant has been paid.

Appellant also argues that the commission violated its own administrative regulations governing self-insurance revocation proceedings, thereby denying appellant due process of law. Specifically, appellant contends that the rules contained in Ohio Adm.Code 4121-9-06(B) and (C) ² were violated, in that (1) the hearing was not held in a public place, (2) the Administrator was not notified, and (3) no court reporter was present. Examination of the record reveals this contention to be without merit.

The revocation hearing took place in a conference room situated within the premises occupied by the commission. The commission is an administrative agency and, as such, the building which it occupies is a public place. We find nothing inherently violative of the procedure set forth in Ohio Adm.Code 4121-9-06(B) when a revocation proceeding is conducted in a conference room, especially when the record is devoid of evidence indicating that any interested parties, whatsoever, were excluded from the hearing.

Regarding the presence of a court reporter, we conclude that appellant, in failing to object to the absence of such, prior to the commencement of the hearing, has waived this defect. Further, the record indicates that while the Administrator was not in attendance, he was, in fact, notified.

Finally, appellant urges that the Court of Appeals failed to decide whether the commission abused its discretion when it chose not to revoke Commercial's self-insurance status. R. C. 4123.35, which governs self-insurance, states, in part, that " * * * (t)he commission may * * * revoke the privilege * * * to pay (workers') compensation direct, if in its judgment such action is necessary or desirable to secure or assure a strict compliance with all the provisions of Chapter 4123 of the Revised Code * * *." (Emphasis added.)

The phrase "if in its judgment" vests within the commission substantial discretion when considering whether to revoke an employer's self-insured status. Cognizant of this fact, the Court of Appeals stated: "Obviously, the revocation of self-insured status lies within the sound discretion of the Industrial Commission. The discretion of an administrative board or commission cannot be controlled by a writ of mandamus. * * * " (Citations omitted.)

In view of this statement, we find that the Court of Appeals properly addressed the issue of a possible abuse of discretion by the commission.

For the foregoing reasons,...