State ex Rel. Burnett v. Indus. Comm

Full title: THE STATE, EX REL. BURNETT, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET…

Court: Supreme Court of Ohio

Date published: Aug 24, 1983

6 Ohio St. 3d 266 (Ohio 1983)

452 N.E.2d 1341

Opinion

No. 82-1254

Decided August 24, 1983.

Workers' compensation — Occupational disease claim for asbestosis — Mandamus to compel commission to investigate — Writ denied, when — Adequate remedy at law.

APPEAL from the Court of Appeals for Franklin County.

Appellant, Dorothy Burnett, is the surviving spouse of Orville E. Burnett, who was employed as a construction pipefitter from 1946 to 1977. Burnett worked through a union hall and was hired by numerous employers for varying periods of time. It is alleged that Mr. Burnett was required to work with and around asbestos which was used as insulation on pipes and that most, if not all of the employers for whom he worked, were amenable to Ohio's workers' compensation laws.

In November 1977, Burnett was diagnosed as having asbestosis and was unable to continue working. At the time, he had been employed by appellee Peck-Hannaford Briggs Co. ("Peck-Hannaford") for five and one-half months. He filed an occupational disease claim with appellee Industrial Commission of Ohio ("commission"). The Claimant's Report of Occupational Disease form filed by Burnett requested the names and addresses of all other employers and dates of employment where he was exposed to the substance which allegedly caused his disease. Burnett responded to that request as follows: "After 31+ years in this business and working for an untold number of employers per year this would be a great task and would take some time to accomplish. All work was performed for Hamilton Cinti [ sic] contractors."

On July 2, 1978, before Burnett's claim had been ruled upon by the commission, he died of mesothelioma, a form of cancer caused by exposure to asbestos fibers. In August 1978, appellant filed a claim for death benefits which was consolidated with her husband's prior claim. One of the application forms requested the names and addresses of Burnett's employers during the five years preceding his death. Appellant left that item blank. Apparently, the commission never requested appellant to furnish further information concerning her husband's employers, and after a hearing on December 26, 1979, the claim for death benefits was allowed. The regional board of review affirmed the order.

Upon appeal to the commission, Peck-Hannaford presented statements and affidavits of its employees stating that Burnett was not exposed to asbestos at any of the jobs he performed during his five and one-half months of employment with them. The commission reversed the award and denied the death claim "* * * for the reason that claimant had no exposure to asbestos during the course of his employment with the subject employer."

Appellant timely filed appeals pursuant to R.C. 4123.519 in the Court of Common Pleas of Hamilton County and the Court of Common Pleas of Butler County which are pending.

On February 19, 1982, appellant brought this action in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in failing to conduct an investigation to determine whether Burnett was exposed to asbestos during any employment prior to his death. She requested that a writ issue to compel the commission to conduct such an investigation and thereafter, redetermine the death claim application.

The court of appeals denied the writ and the cause is now before the court upon an appeal as of right.

Clayman Jaffy Co., L.P.A., Mr. Stewart R. Jaffy and Mr. John F. Livorno, for appellant.

Mr. Anthony J. Celebrezze, Jr., attorney general, and Mr. James E. Davidson, for appellees Industrial Commission et al.

Mr. David A. Dachner and Mr. Richard J. Giovanetti, for appellee Peck-Hannaford Briggs Co.

Per Curiam.

The court of appeals denied the writ for the reason that "* * * there is no evidence showing that he [Burnett] was exposed to causative factors while employed by respondent, Peck-Hannaford Briggs Co., his last employer, as required by State, ex rel. The Hall China Co., v. Indus. Comm. (1962), 120 Ohio App. 374 [27 O.O.2d 304]." The court's interpretation of Hall China was incorrect. That decision does not require a claimant to prove injurious exposure at the last place of employment. The court therein held that an injurious exposure was a prerequisite to the allowance of an occupational disease claim; and that proof of such exposure with the last employer was a sufficient basis for the award even though other employments may have contributed to the occupational disease.

Though the basis for the court of appeals' decision was erroneous, it is well-recognized that mandamus does not lie where the relator has an adequate remedy at law. R.C. 2731.05; State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St.2d 121, 123 [16 O.O.3d 143]; State, ex rel. Benton, v. C. So. O. Elec. Co. (1968), 14 Ohio St.2d 130, 132 [43 O.O.2d 238].

The order complained of herein involves appellant's right to participate in the fund and is thus appealable under R.C. 4123.519. Currently pending are two appeals pursuant to R.C. 4123.519, wherein all of the issues raised herein can be adjudicated. Appellant's concern that the failure to name the appropriate employer will defeat her appeal is unfounded. The right at issue in the appeal is the right to participate in the state fund and not a claim directed against a particular employer. The appeal proceeding is a trial de novo and the Civil Rules apply. By discovery and joinder, the proper employers can be ascertained and made parties, if necessary.

For the reason that appellant has an adequate remedy at law by way of appeal, we affirm the judgment of the court of appeals denying the writ requested.

Judgment affirmed.

CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.