State ex rel. Zarbana Indus., Inc. v. Indus. Comm'n of Ohio, 2020-1575

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM.
• Citation: 166 Ohio St.3d 216,184 N.E.3d 81
• Parties: The STATE EX REL. ZARBANA INDUSTRIES, INC., Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.
• Docket Number: 2020-1575
• Decision Date: 19 October 2021

166 Ohio St.3d 216
184 N.E.3d 81

The STATE EX REL. ZARBANA INDUSTRIES, INC., Appellant,
v.
INDUSTRIAL COMMISSION of Ohio et al., Appellees.

No. 2020-1575

Supreme Court of Ohio.

Submitted August 3, 2021
Decided October 19, 2021.

Bugbee & Conkle, L.L.P., Mark S. Barnes, and Gregory B. Denny, Toledo, for appellant.

Heller, Maas, Moro & Magill Co., L.P.A., and Patrick J. Moro, Dublin, for appellee Jeremy M. Hayes.

Dave Yost, Attorney General, and John Smart, Assistant Attorney General, for appellee Industrial Commission of Ohio.

Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey, Columbus, urging reversal for amici curiae, Ohio Chamber of Commerce and Ohio Self-Insurers Association.

Per Curiam.

166 Ohio St.3d 216

{¶ 1} After suffering a work injury, appellee Jeremy M. Hayes sought an additional workers’ compensation award for his employer's violation of specific safety requirements ("VSSRs"). Hayes and his employer, appellant, Zarbana Industries, Inc., submitted a proposed settlement for approval by appellee Ohio Industrial Commission. After a hearing, the staff hearing officer ("SHO") rejected the settlement as neither fair nor equitable and granted Hayes's request for a VSSR award. Zarbana sought reconsideration, which the commission denied. Zarbana then asked the Tenth District Court of Appeals for a writ of mandamus compelling the commission to vacate its orders and approve the settlement. The Tenth District denied the writ, and Zarbana appealed. Zarbana has moved for oral argument.

{¶ 2} We affirm the Tenth District's judgment denying the writ, and we deny the motion for oral argument.

166 Ohio St.3d 217

I. FACTS AND PROCEDURAL HISTORY

{¶ 3} Hayes's right hand was crushed in a punch press while he was working for Zarbana, "resulting in multiple finger amputations." His workers’ compensation claim was allowed for a crushing injury and several other conditions.

{¶ 4} Hayes applied for an award of additional compensation due to Zarbana's alleged VSSRs. Zarbana denied that it had violated any safety requirements. The commission sent the parties a letter estimating that if Hayes's VSSR application was allowed, the award could range from approximately $21,000 to approximately $70,000, "subject to increase if there is ongoing compensation or future compensation paid in this claim." The commission then held a hearing on the merits of the application.

{¶ 5} Before the SHO issued his decision, however, Zarbana and Hayes submitted to the commission an agreement to settle Hayes's VSSR claim for a lump-sum payment of $2,000. The parties chose to set the terms of their agreement down on a form provided by the commission. The agreement provided, as part of the prepared form, "This agreement shall be submitted to the Industrial Commission of Ohio for approval, and Employer shall not pay the agreed amount until the agreement shall have been approved by the Ohio Industrial Commission and made a matter of record in the claim * * *."

184 N.E.3d 84

{¶ 6} The SHO then convened a hearing at which he considered the settlement agreement under Ohio Adm.Code 4121-3-20(F)(1). The following day, the SHO issued two orders. One order granted Hayes a VSSR award of 30 percent of the maximum weekly rate. The commission asserts that the award at the time it was issued equaled approximately $40,000; Zarbana has not disputed that figure. The other order rejected the proposed $2,000 settlement as "neither fair nor equitable." Zarbana filed a motion for reconsideration; the commission found that it lacked the authority to exercise its continuing jurisdiction, so it denied the motion.

{¶ 7} Zarbana filed a declaratory-judgment action in the Franklin County Court of Common Pleas, alleging that the commission lacked statutory authority over VSSR settlements. See Zarbana Industries, Inc. v. Hayes , 10th Dist. Franklin No. 18AP-104, 2018-Ohio-4965, 2018 WL 6505535, ¶ 7. The court dismissed the action for lack of jurisdiction, and the Tenth District affirmed. Id. at ¶ 9, 32.

{¶ 8} Zarbana then filed this mandamus action in the Tenth District, alleging that the commission lacks authority to reject a settlement agreement on the grounds of fairness or equity. Zarbana sought a writ compelling the commission to vacate its order rejecting the settlement, vacate its order granting Hayes a

166 Ohio St.3d 218

VSSR award, and issue an order approving the settlement. The Tenth District denied the writ. 2020-Ohio-5200, ¶ 14.

{¶ 9} Zarbana appealed. Amici curiae, Ohio Chamber of Commerce and Ohio Self-Insurers Association, filed a brief in support of Zarbana. Additionally, Zarbana has filed a motion for oral argument.

II. ANALYSIS

{¶ 10} To be entitled to a writ of mandamus, Zarbana must establish that it has a clear legal right to the requested relief, that the commission has a clear legal duty to provide it, and that there is no adequate remedy in the ordinary course of the law. State ex rel. Manor Care, Inc. v. Bur. of Workers’ Comp. , 163 Ohio St.3d 87, 2020-Ohio-5373, 168 N.E.3d 434, ¶ 14. Zarbana must make this showing by clear and convincing evidence. Id.

{¶ 11} Zarbana asserts three propositions of law; we reject all three.

A. The Commission's Authority to Approve Settlements of VSSR Claims

{¶ 12} The commission rejected the proposed settlement in this case under Ohio Adm.Code 4121-3-20(F)(1). In its first proposition of law, Zarbana asserts that "[b]ecause Ohio Admin.Code 4121-3-20(F) does not emanate from any statutory provision it is a nullity." (Emphasis sic.) Zarbana contends that the General Assembly has not granted the commission authority to approve or disapprove VSSR settlements. However, Zarbana did not assert this argument before the Tenth District. Zarbana has therefore waived...