Summary
recognizing that the BWC has “substantial discretion” in determining whether to revoke a company's self-insured status
Summary of this case from Stolz v. J & B Steel Erectors, Inc.Opinion
No. 81-656
Decided February 3, 1982.
Workers' compensation — Temporary total disability award — Statutory ceiling controlling — Industrial Commission — Self-insurance revocation proceedings — Not violated, when.
APPEAL from the Court of Appeals for Franklin County.
On August 22, 1966, appellant, William H. Vaughn, sustained a back injury while in the course of his employment with Commercial Motor Freight, Inc. (presently Commercial Lovelace Motor Freight, Inc.) a self-insured employer under the Workers' Compensation Act. Appellant received a ten percent permanent partial disability award for that injury. Subsequently, appellant filed a claim for injuries described as "aggravation of pre-existing personality disorder and conversion reaction." This claim was allowed by the Industrial Commission.
Appellant then filed a motion for temporary total disability. On December 20, 1973, the Dayton Regional Board of Review ordered Commercial to compensate appellant for temporary total disability for various intervals between August 1966 and May 1969, and from October 1, 1970 through March 31, 1974. Commercial's appeal of this award to the Industrial Commission was refused and a subsequent appeal to the Court of Common Pleas of Montgomery County was dismissed. In 1974, appellant received temporary total disability benefits totalling $5,646, such amount representing compensation due through May 1969.
Thereafter, Commercial brought an action in mandamus in the Court of Appeals for Franklin County alleging an abuse of discretion and requesting the issuance of a writ directing the commission to vacate the allowance of temporary total disability benefits for the period commencing in 1970 and ending in 1974. Upon motion by the commission, the Court of Appeals dismissed the action. On appeal to this court, we reversed and remanded the cause for a hearing on the merits. State, ex rel. Commercial Motor Freight, v. Stebbins (1975), 42 Ohio St.2d 389.
On remand, the Court of Appeals, finding no abuse of discretion, denied the writ. Despite this decision, Commercial refused to compensate appellant for the period beginning October 1, 1970 and ending March 31, 1974.
In April 1977, appellant filed a motion with the commission requesting an order compelling Commercial to pay the balance of the compensation award and to pay additional compensation after March 31, 1974, and for the commission to revoke Commercial's self-insured status. The commission denied this motion in its entirety. As a result, appellant initiated the instant action in mandamus in the Court of Appeals requesting that: (1) The employer be ordered to compensate appellant in accordance with the December 20, 1973 order of the board of review and to pay further compensation as demonstrated by medical proof; and (2) the commission revoke Commercial's self-insured status for noncompliance with the rules and orders of the commission.
The Court of Appeals found an affirmative duty owed by the commission to compel Commercial to comply with the 1973 award; however, since the employer paid an additional $5,104 during the pendency of this action, the issue was rendered moot. The court further found that the 1973 award could not be enlarged beyond the compensation provided by statute, and that the commission had not abused its discretion in failing to revoke the employer's self-insured status.
The cause is now before this court on an appeal as of right.
E.S. Gallon Assoc. Co., L.P.A., and Mr. John A. Cervay, for appellant.
Mr. William J. Brown, attorney general, and Ms. Nancy J. Miller, for appellee Industrial Commission.
Mr. William C. Buckham, for appellee Commercial Motor Freight, Inc.
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 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. See, also, Young, Workmen's Compensation Law in Ohio (2 Ed.), 124, Section 7.1.
In 1966, R.C. 4123.56 read, in relevant part:
"In the case of temporary disability, an employee shall receive sixty-six and two-thirds per cent of his average weekly wage so long as such disability is total, not to exceed a maximum of forty-nine dollars per week, and not less that a minimum of twenty-five dollars per week, unless the employee's wage is less than twenty-five dollars per week, in which event he shall receive compensation equal to his full wages; provided, that for the first twelve weeks of total disability the maximum weekly benefit payable shall be fifty-six dollars per week. In no case shall such benefits exceed ten thousand seven hundred fifty dollars. * * *"
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) 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.
Ohio Adm. Code 4121-9-06(B) provides, in relevant part:
"Should the industrial commission be advised in writing by any manner including a complaint from a claimant, a report from the employees of the bureau of workers' compensation, either following an audit of a self-insuring employer or otherwise or by report of its own employees that a self-insuring employer has failed to comply with any of the matters listed in paragraph (A) of this rule, the commission shall direct that a public hearing be held on the question of revocation of the employer's privilege of self-insurance. Should the commission find that the self-insuring employer has materially violated any parts of this rule and is incapable of operating a self-insuring program, or refuses to conform to the rules and regulations of the industrial commission or bureau of workers' compensation, then the commission and bureau will forthwith issue a revocation of authority to pay compensation, etc., direct, whereupon said employer shall be required to pay forthwith his eight months advance estimated premium into the state insurance fund."
Ohio Adm. Code 4121-9-06(C) provides:
"The employer shall be notified in writing that such a public hearing will be held and shall be furnished with copies of any complaint of an employee or report from the employees of the bureau or commission. The employer shall be given a period of thirty days following the mailing of such notice within which to file an answer in writing with the commission. Upon receipt of the employer's answer or upon the expiration of the above thirty-day period, if no answer is filed the commission shall refer the matter to a staff hearing officer for preparation of a review and statement of facts.
"(1) The matter shall then be assigned for hearing before the members of the commission and notices of such hearing shall be given to the self-insuring employer and the claimant, if he has filed a complaint, and to the administrator.
"(2) At the hearing the testimony given shall be taken by a court reporter and copies of the transcript of such testimony shall be furnished to the self-insuring employer, the complaining claimant, the administrator and the members of the commission. If the commission then finds that the employer has materially failed to comply with the rules set forth in paragraph (A), it shall cause a forfeiture of the privilege of self-insurance as provided by paragraph (B) of this rule."
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, the judgment of the Court of Appeals denying the writ is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.