Summary
In State ex rel. Gibson v. Indus. Comm. (1988), 39 Ohio St.3d 319, the Supreme Court of Ohio specifically held that the standard from Quarto Mining was equally applicable in a mandamus action where the issue is not raised previously, the issue has been waived.
Summary of this case from State ex rel. Maxim Healthcare Servs., Inc. v. Indus. Comm'n of OhioOpinion
No. 87-634
Submitted July 27, 1988 —
Decided November 16, 1988.
Mandamus — Issue not previously raised may be considered waived, when.
APPEAL from the Court of Appeals for Franklin County, No. 85AP-667.
Appellant, Ruby M. Gibson, was injured on April 28, 1978, while in the course of and arising out of her employment with appellee Jeep Corporation. The claim was allowed for "[b]ursitis of right shoulder," and temporary total compensation was awarded through January 30, 1979. Between 1980 and 1983, appellant filed several motions for temporary total compensation, all of which were denied at the administrative level.
On November 4, 1983, appellant moved that her condition for "frozen right shoulder with periarthritis" be recognized as part of her claim. She also requested temporary total compensation retroactive to November 4, 1981, and to continue upon submission of medical proof based on the newly requested condition. On January 31, 1984, a district hearing officer granted the additional allowance, but denied temporary total compensation, finding that the condition did not prevent appellant from returning to her former position of employment.
On appeal to the regional board of review, the order was modified and temporary total compensation was awarded from November 4, 1983. Dissatisfied with the board's failure to grant temporary total compensation retroactive to 1981, appellant, pursuant to R.C. 4123.516, again appealed. The ensuing order read in pertinent part:
"It is the finding of the Staff Hearing Officers that claimant's appeal be denied. That the order of the Regional Board dated 5-7-84 be modified to the extent that the Staff Hearing Officers find claimant's disability to be permanent in nature based on the Staff Hearing Officer order dated 3-30-83, and the fact that the additional condition described as `frozen right shoulder with periarthritis' was initially diagnosed in July of 1978 per Dr. Shiple.
"Therefore, the temporary total from 11-4-81 through 11-3-83 is denied and temporary total from 11-4-83 to continue is vacated and denied. The Staff Hearing Officers find that there is jurisdiction to vacate temporary total beginning 11-4-1983 even without an employer's appeal as the claimant's appeal cannot be limited and opens for consideration all issues ruled upon in the order being appealed.
"The order of the Regional Board is affirmed in all respects."
Appellant filed a complaint for a writ of mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in vacating the regional board's award of temporary total compensation because the commission had no jurisdiction to consider the award. The court of appeals denied the writ.
The cause is now before this court upon an appeal as a matter of right.
Gallon, Kalniz Iorio Co., L.P.A., and William R. Menacher, for appellant.
Bugbee Conkle, Warren Wolfe and Robert L. Solt III, for appellee Jeep Corporation. Anthony J. Celebrezze, Jr., attorney general, and James A. Barnes, for appellee Industrial Commission.
Appellant's sole proposition before this court is that the commission's assumption of jurisdiction over an issue that she did not intend to relitigate violated her right to due process of law. We hold that this issue was not raised previously, and therefore has been waived. See State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277, syllabus; Blausey v. Stein (1980), 61 Ohio St.2d 264, 15 O.O. 3d 268, 400 N.E.2d 408; F. Enterprises v. Kentucky Fried Chicken Corp. (1976), 47 Ohio St.2d 154, 1 O.O. 3d 90, 351 N.E.2d 121.
Appellant unsuccessfully attempts to distinguish these and similar cases cited by appellees, contending that the case at bar, unlike those noted above, is a mandamus action. She argues that the present issue is before this court as if originally filed here, and thus her due process argument is not waived. However, in State, ex rel. Kay, v. Cleveland (1971), 27 Ohio St.2d 37, 56 O.O. 2d 21, 271 N.E.2d 784, an appeal from a denial of a writ of mandamus, we relied on a waiver theory in refusing to consider a newly proffered free-speech argument.
Accordingly, the judgment of the court of appeals denying the writ is therefore affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.