Opinion
No. 88-938
Submitted September 12, 1989 —
Decided December 13, 1989.
Workers' compensation — Failure to pursue an adequate administrative remedy precludes mandamus relief.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-496.
Decedent, William A. Stafford, was killed on April 13, 1976 while in the course of and arising from his employment with appellee Buckeye International, Inc. ("Buckeye"). At the time of his death, decedent was living with his ex-wife, Lorene ("appellant"), and their two daughters — Jacqueline, twelve, and Joann, nineteen. Just prior to the accident, on April 5, 1976, a marriage license was issued to decedent and appellant; they were to be remarried on April 16, 1976.
Appellant, on her own behalf and on behalf of her two daughters, applied for death benefits, pursuant to R.C. 4123.59, which provides, in part:
"(D) The following persons shall be presumed to be wholly dependent for their support upon a deceased employee:
"(1) A surviving spouse who was living with the employee at the time of death * * *;
"(2) A child under the age of eighteen years, or twenty-five years if pursuing a full-time educational program while enrolled in an accredited educational institution and program, or over said age if physically and mentally incapacitated from earning, upon only the one parent who is contributing more than one-half of the support for such child and with whom he is living at the time of the death of such parent * * *."
By an order dated January 14, 1977, the Administrator of the Bureau of Workers' Compensation, an appellee herein, awarded weekly benefits to Jacqueline as a wholly dependent person and $3,000 to Joann as a prospective dependent. No benefits were awarded to appellant. By an order dated April 28, 1977, the Columbus Regional Board of Review modified this order, finding that appellant was a common-law surviving spouse and finding that Joann was a partial dependent. Jacqueline's award remained intact.
Appellant did not appeal this order. Buckeye did, however, and the order was affirmed by appellee Industrial Commission ("commission") by a decision dated August 30, 1979. Buckeye appealed to the Franklin County Court of Common Pleas but later dismissed its own appeal.
Appellant subsequently remarried and moved to reapportion her weekly benefits to her daughters. At a late 1982 district hearing, appellant's counsel orally moved to amend appellant's reapportionment motion to include a request for "relief under * * * [R.C.] 4123.52 * * * from the findings of a final order of the Industrial Commission dated April 16 [ sic August 30], 1979 which found the Dependent child [Joann] to be partially dependent." The commission ultimately denied the motion for lack of jurisdiction under R.C. 4123.52, finding that "the issue of said child's dependency had been fully and fairly litigated and that the ICOM [Industrial Commission] order of April 16 [ sic August 30], 1979 is a final order on the issue of said child's dependency."
Appellant, on Joann's behalf, then filed a complaint in mandamus in the Court of Appeals for Franklin County seeking to compel the commission to modify its 1979 order and/or reapportion death benefits to Joann as a wholly dependent person from the date of appellant's remarriage. Appellant argued that the commission had failed to rebut R.C. 4123.59(D)(2)'s presumption of whole dependency as to Joann. On June 5, 1984, the appellate court issued a limited writ ordering the commission to specify the basis of its finding and to briefly explain both why appellant was not entitled to a modification of the commission's 1979 order, and why Joann was not wholly dependent on decedent at the time of his death.
In response to the court's order, commission staff hearing officers issued an order dated February 27, 1986. While their review of the evidence supported a finding that Joann was wholly dependent, the hearing officers concluded that an absence of new and changed conditions precluded them from exercising continuing jurisdiction over the prior dependency finding.
Appellant again filed a complaint in mandamus alleging, in essence, that the commission had abused its discretion by failing to exercise its continuing jurisdiction under R.C. 4123.52. The appellate court disagreed and denied the writ.
This cause is now before this court upon an appeal as of right.
Stewart Jaffy Associates Co., L.P.A., and Stewart R. Jaffy, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Merl H. Wayman, for appellees Industrial Commission et al.
Bricker Eckler and Charles D. Smith, for appellee Buckeye International, Inc.
For mandamus to issue, it must be demonstrated that: (1) the relator has a clear legal right to the relief requested; (2) respondents are under a clear legal duty to perform the acts requested; and (3) relator has no plain and adequate remedy at law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 50-51, 451 N.E.2d 225, 226-227. Adequate administrative remedies preclude mandamus relief. State, ex rel. Bardo, v. Lyndhurst (1988), 37 Ohio St.3d 106, 112, 524 N.E.2d 447, 453. Such a remedy, moreover, does not become inadequate merely because it is no longer available. State, ex rel. Cartmell, v. Dorrian (1984), 11 Ohio St.3d 177, 179, 11 OBR 491, 493, 464 N.E.2d 556, 559.
R.C. 4123.516 provides that:
"* * * The administrator, the claimant, or the employer may file an appeal to the commission from a decision of a regional board within twenty days after the date of receipt of the decision." Under this statute, appellant could have appealed the April 28, 1977 regional board's order finding Joann partially dependent. The record fails to indicate that she appealed that order. This failure to pursue what we perceive to have been an adequate administrative remedy precludes mandamus relief. Accordingly, for the reasons stated, the judgment of the court of appeals is affirmed.
Judgment affirmed.
HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.
MOYER, C.J., not participating.