Opinion
No. 85-730
Decided July 2, 1986.
Workers' compensation — Vises — Application alleging violation of specific safety requirement not sufficient, when.
APPEAL from the Court of Appeals for Franklin County.
On May 8, 1979, Everett L. Virgin, deceased husband of Norma J. Virgin, appellant, was injured while working within the scope of his employment with appellee, Empire Detroit Steel. On June 1, 1979, Everett died of a subdural hematoma. Appellant, as widow-claimant, filed an application for death benefits from the Workers' Compensation Fund. The Industrial Commission granted appellant's application, finding appellant and her son to be wholly dependent upon the decedent for support at the time of his death.
On May 5, 1981, appellant, without aid of counsel, filed an application requesting an additional award for violation of a specific safety requirement ("VSSR"). Appellant depicted her husband's accident in the following manner:
"Vice [ sic] that Everett Virgin was working with that day has been defected [ sic] for several months. Plus the Corp. had knowledge of the above fact and the vice [ sic] had defected [ sic] jaws which the corporation also had knowledge of."
This application was set for hearing prior to any investigation in order to determine the sufficiency of its content. On October 20, 1981, appellant's VSSR application was dismissed by the Industrial Commission on the grounds that it did not cite any specific safety requirements adopted by the General Assembly or the Industrial Commission.
On November 25, 1981, appellant, with the aid of counsel, requested a reconsideration of the commission's October 20, 1981 order. Attached to this motion was an amended copy of the widow-claimant's application for VSSR. Therein, the decedent's injury was alleged to have occurred as follows: "While tightening a fitting on a piece of pipe, wrench slipped causing me [decedent] to fall against another piece of pipe."
In addition, Ohio Adm. Code 4121:1-5-07(C) and 4121:1-5-07(K) were cited as the specific safety requirements violated by the employer.
On June 29, 1982, appellant filed a motion for rehearing of the commission's October 20, 1981 order. Also attached to this motion was an amended application for VSSR which was identical in content to the amended VSSR application filed on November 25, 1981. This motion was granted on August 11, 1982.
The commission referred appellant's claim for further investigation and a report was completed on March 18, 1983. Special investigator James G. Johnson concluded that the decedent's injury was the result of a chain vise slipping while the decedent was attempting to tighten a fitting on a pipe with a wrench.
On April 12, 1983, the Industrial Commission issued notice of a thirty-day period in which both the claimant and employer were to file any additional proof in regard to the adjudication of appellant's claim. By letter dated May 3, 1983, appellant requested an oral hearing. This motion was granted and on June 21, 1983 and July 5, 1983, the commission held a record hearing on the "Rehearing on Merits of Applications Filed 5/5/81 11/25/81."
Shortly thereafter, the commission ruled that appellant's amended application for VSSR was barred by the statute of limitations. A subsequent motion for reconsideration was denied.
Appellant instituted the within complaint in mandamus in the court of appeals seeking an order directing the Industrial Commission to reinstate appellant's amended application for VSSR and refer the matter for further investigation. On April 12, 1985, the appellate court rendered a decision denying the writ.
This cause is now before this court upon an appeal as of right.
Michael J. Muldoon, for appellant.
Crabbe, Brown, Jones, Potts Schmidt and William W. Johnston, for appellee Empire Detroit Steel.
Anthony J. Celebrezze, Jr., attorney general, and Richard Slavin, for appellee Industrial Commission.
Appellant proposes that the originally filed VSSR application was sufficient to place the commission on notice with respect to the specific safety requirements which may have been violated. It is further alleged that the amended VSSR application filed after the requisite two-year statutory period supplemented the original application by citing the relevant safety requirements. These factors are said to compel a finding that the commission abused its discretion in dismissing the amended VSSR application.
This proposition is premised upon two unreported decisions from the Court of Appeals for Franklin County. In State, ex rel. Hamra, v. Allied Chemical Corp. (Sept. 3, 1981), Franklin App. No. 81AP-112, and State, ex rel. Stoltenberg, v. D.S.L. Corp. (Feb. 27, 1979), Franklin App. No. 78AP-650, the court permitted the claimants to amend their VSSR applications after the statutory period for filing had expired on the grounds that the originally filed applications were sufficiently explicit to give notice with respect to safety requirements that might have been violated, even though the applications failed to cite a specific safety standard.
We find appellant's reliance upon Hamra and Stoltenberg misplaced. In both of these cases, the specific safety violations cited in the amended applications were directly related to the facts as pronounced in the original applications. In the case at bar, the cited safety code regulations concern the operative condition of hand tools. These regulations relate not to facts contained in the original application, but to additional facts contained only in the amended application.
This court addressed a situation similar to the case sub judice in State, ex rel. DeBoe, v. Indus. Comm. (1954), 161 Ohio St. 67 [53 O.O. 5]. The holding in DeBoe is concisely summarized in State, ex rel. Dillon, v. Dayton Press, Inc. (1983), 6 Ohio St.3d 295, 298, as follows:
"In State, ex rel. DeBoe, supra, the claimant filed his application for additional compensation within the two-year period. However, after the expiration of the two-year period and the commission's denial of the claim, the employee filed a motion for reconsideration asserting for the first time a violation by his employer of another specific safety requirement not set forth in his original application.
"The motion was denied by the commission. This court upheld that determination concluding, inter alia, that the motion for reconsideration presented an altogether separate and distinct claim for the violation of a specific safety requirement which had not been asserted within the two-year period."
Based upon this precedent, appellant's amended VSSR application was properly subject to dismissal.
Appellant also challenges a commission ruling made during the hearing which denied appellant's request for the investigation of five of decedent's co-workers.
The facts demonstrate that appellant did not notify the commission of her desire to seek additional proof within thirty days of the hearing as was expressly required in a letter which accompanied the report of investigation issued prior to the hearing. In fact, appellant did not communicate her desire for further investigation until the actual hearing on this matter. It is also evident from appellant's own representations at the hearing that only two of the named individuals actually witnessed the decedent's injury. Such factors dissuade this court from finding that the commission's ruling manifests an abuse of discretion.
For the foregoing reasons, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.