Summary
In State ex rel. Eltra Corp. v. Indus. Comm., 36 Ohio St.2d 96 (1973), the Ohio Supreme Court held that the commission could obtain evidence subsequent to a hearing and then proceed to disposition without affording the parties an additional oral hearing.
Summary of this case from State ex rel. Snyder v. Ohio Wesleyan Univ.Opinion
No. 73-323
Decided November 28, 1973.
Workmen's compensation — Claim for increased percentage of disability allowance — R.C. 4123.518 — Requirements — Not "appeal of a disputed claim," when — Mandamus.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal from the denial of a writ of mandamus by the Court of Appeals for Franklin County.
Albert Schwartz was injured in 1948 while in the course of his employment for appellant, Eltra Corporation. Thereafter, he received benefits for temporary total disability, and in 1953 he was granted an award for 40% permanent partial disability by the Industrial Commission. In 1966, the extent of permanent partial disability was increased to 67% by the commission.
In September 1969, applications (C-85-A) to re-activate the claim were filed by Schwartz with the Bureau of Workmen's Compensation. A hearing relative to such reactivation was held on December 2, 1968, before the deputy claims administrator of the bureau. Re-activation was ordered for additional medical treatment, and claimant and his employer were advised of their right to appeal. No appeal was taken from that order.
The next procedural event was on September 7, 1971, when Schwartz filed a "motion" with the bureau, requesting "that he be found to be permanently and totally disabled." A supporting medical report accompanied the motion. The commission referred Schwartz to another physical who filed his report on November 16, 1971, which included his opinion that Schwartz was permanently and totally disabled. The attorney examiner recommended to the commission that Schwartz be found permanently and totally disabled. The record next reveals that, pursuant to notice to the parties, a hearing was held before the commission in early January 1972. Subsequent thereto, on January 14, 1972, Schwartz was ordered referred to a medical specialist who ultimately reported his findings in May 1972, to the commission. The commission's own physician then reported that the objective findings of the specialist did not support permanent and total disability.
On May 24, 1972, without further hearing, the commission found Schwartz to be permanently and totally disabled and ordered payment accordingly. Eltra then timely sought reconsideration and an oral hearing thereon, which was denied on August 18, 1972.
Thereafter, Eltra filed this mandamus action in the Court to Appeals to require the commission to vacate its orders of May 24, 1972, and August 18, 1972, and to set for formal hearing Schwartz' application for permanent total disability.
The Court of Appeals denied the writ, and the cause is now before this court upon an appeal as of right.
Mr. Frank E. Gafney, for appellant.
Mr. William J. Brown, attorney general, Mr. Stephen T. Parisi, Mr. David A. Saphire, Messrs. Kaplan, Kaplan Lehman, and Messrs. Knisley, Carpenter, Wilhelm Nein, for appellees.
Although initially, in the Court of Appeals, there may have been some question that appellant was asserting abuse of discretion by the commission in its merit finding of permanent total disability, it is apparent that the sole issue urged here relates to whether a hearing by the commission on the question of permanent total disability was required under R.C. 4123.518. Appellant concedes that there was a hearing on January 11, 1972, but contends that a subsequent hearing became necessary because additional evidence by way of medical reports was submitted following the original hearing. Ironically, the subsequent reports, which were favorable to appellant, were apparently not persuasive to the commission.
Since the issue revolves about the hearing requirements of R.C. 4123.518, the crucial and determinative question is whether, under this statute, the appellant was entitled to any hearing before the commission. If no hearing was required then it is unnecessary to consider whether appellant was entitled to a second hearing after the commission obtained additional evidence. We hold that no such hearing was required under R.C. 4123.518.
The first paragraph of R.C. 4123.518 reads, as follows:
"Before making or denying an award in the appeal of a disputed claim, a regional board of review or the Industrial Commission, as the case may be, shall afford to the claimant, the employer and the administrator an opportunity to be heard upon reasonable notice and to present the testimony of witnesses and other evidence. * * *" (Emphasis added.)
For determination herein, the relevant phrase of R.C. 4123.518 is "appeal of a disputed claim." The increase in the percentage of disability (from permanent partial to permanent total) which claimant sought and obtained from the commission was not by way of an "appeal of a disputed claim." In the first instance, the commission has jurisdiction, and is required to determine the "percentage of the employee's permanent disability" under the statute (R.C. 4123.57(B)) as well as under rule IC/WC-21-15(C) of the commission. Here, Schwartz filed a "motion" for permanent and total disability with the bureau. However, in light of the aforesaid jurisdiction of the commission under R.C. 4123.57(B) respecting percentage of permanent disability determinations, and Rules IC/WC-21-16(B) and 21-15(C)(5), this "motion" procedure was improper and should have been by application to the commission under Rule IC/WC-21-15(B)(5). Notwithstanding such requirement, the commission apparently proceeded to handle and process the claim, thereby treating it as an application "to increase a percentage of permanent partial disability award" under Rule IC/WC-21-15(C)(5), not as an appeal, but under its original statutory jurisdiction subsequent to its original allowance.
Moreover, the phrase "appeal of a disputed claim" has particular significance in light of R.C. 4123.515, 4123.516 and 4123.517, which give special meaning to what constitutes a "disputed claim." R.C. 4123.515, in part, provides that "before making or denying an award in a disputed claim the administrator of the bureau * * * shall afford * * * opportunity to be heard * * *." Appellant makes no assertion that this statute is applicable. R.C. 4123.515 and the preceding four sections (R.C. 4123.511, 4123.512, 4123.513 and 4123.514) are all related to the initial determination by the bureau of the validity or allowability of a claim.
Thus, the "disputed claim" requirement of R.C. 4123.515 means a dispute as to the original allowability of the claim itself. R.C. 4123.516 then provides for appeals to the board of review or Industrial Commission of a "decision of the administrator of the Bureau of Workmen's Compensation," and R.C. 4123.517 requires conferences prior to the hearing of such appeals. R.C. 4123.518 then sets out the requirement of a hearing "in the appeal of a disputed claim." Thus, the conclusion is inescapable that the appeal referred to in R.C. 4123.518, and its incident opportunity to "present the testimony of witnesses and other evidence," relates to the original allowance of the claim and whether it is properly cognizable under the workmen's compensation statutes in the first instance, and not to an appeal from other decisions of the bureau which are contemplated by R.C. 4123.516 and 4123.517. This conclusion is buttressed by the fact that the decision made by the commission was not the result of an appeal to the commission under any of the foregoing statutes.
The commission did set and hold a hearing, not because this was an "appeal of a disputed claim," but pursuant to Rule IC/WC-21-15(B)(7), which permits the determination of a claim subsequent to an original allowance, with or without special hearing as the circumstances presented require. Thus, while a hearing was afforded, we find nothing in IC/WC-21-09(C), pertaining to hearings, that would prohibit the commission from obtaining evidence subsequent to such a hearing and proceeding to disposition without affording the parties an additional oral hearing. Nor does appellant urge that the rules require such an additional hearing.
For the foregoing reasons, the judgment of the Court of Appeals, denying the writ of mandamus, is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.