Summary
holding that Industrial Commission has continuing jurisdiction under section 4123.52 of the Ohio Revised Code to modify previous orders based on fraud
Summary of this case from In re FosterOpinion
No. 91-2455
Submitted October 13, 1992 —
Decided December 14, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 90AP-637.
In January 1986, appellee-claimant, Daniel Bowman, alleged having respiratory problems due to his exposure to chemicals in the course of and arising from his employment at Inmont Corporation. A district hearing officer for appellant Industrial Commission of Ohio allowed appellee's workers' compensation claim for "industrial asthma," and ordered:
"That medical bills be paid * * *.
"* * * This claim is allowed as an occupational disease.
"District Hearing Officer finds that the claimant is able to return to his former position of employment. No compensable lost time from work. Thus, temporary total disability compensation is denied.
"Compensation awarded based on medical reports of Dr. Brooks and testimony of claimant."
The order was not appealed.
In 1987, claimant sought partial disability compensation pursuant to former R.C. 4123.57. On January 12, 1988, without prior hearing, a district hearing officer dismissed claimant's application, stating:
"The district hearing officer finds that claimant's IC-92 application for determination of percentage of permanent partial disability, be dismissed for the reason that the Ohio Revised Code, Section 4123.68 provides that there be no compensation other than temporary total disability, permanent total disability, or death * * * claims arising from * * * any other occupational disease of the respiratory tract resulting from injurious exposure to dust.
"The district hearing officer finds that the claimant suffers from industrial asthma acquired from exposure to dry chemicals and dust.
"* * *
"The order herein is based on the claimant's application, evidence in the file and/or evidence adduced at the hearing." (Emphasis added.)
Claimant's motion for reconsideration was denied.
Claimant requested a writ of mandamus in the Court of Appeals for Franklin County, claiming that the commission abused its discretion in modifying the allowed condition so as to preclude permanent partial disability compensation. The appellate court allowed the writ, finding that: (1) the January 12, 1988 order did not satisfy State ex rel. Mitchell v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721; and (2) the commission had no continuing jurisdiction under R.C. 4123.52 to modify the allowed condition.
This cause is now before this court upon an appeal as of right.
Butkovich, Schimpf, Schimpf Ginocchio and J. Kent Breslin, for appellee.
Lee I. Fisher, Attorney General, and Scott A. Armour, Assistant Attorney General, for appellants.
In the application of former R.C. 4123.68 to an allowed condition, there is an important distinction between "industrial asthma" and "industrial asthma acquired from exposure to dry chemicals and dust." Former R.C. 4123.68(Y) stated:
"* * * Compensation and medical, hospital, and nursing expenses on account of silicosis, asbestosis, or coal miners' pneumoconiosis are payable only in the event of temporary total disability, permanent total disability, or death * * *." (Emphasis added.) (137 Ohio Laws, Part II, 3958.)
Subdivision (BB) also read:
"All other occupational diseases: A disease peculiar to a particular industrial process, trade, or occupation and to which an employee is not ordinarily subjected or exposed outside of or away from his employment.
"All conditions, restrictions, limitations, and other provisions of this section, with reference to the payment of compensation or benefits on account of silicosis or coal miners' pneumoconiosis shall be applicable to the payment of compensation or benefits on account of any other occupational disease of the respiratory tract resulting from injurious exposures to dust." (137 Ohio Laws, Part II, 3960.)
The January 12, 1988 modification of the allowance of appellee's claim to include "acquired by exposure to * * * dust" statutorily precluded claimant from receiving permanent partial disability compensation. Former R.C. 4123.68. As the appellate court correctly found, this action constituted an abuse of discretion for two reasons.
The commission's continuing jurisdiction under R.C. 4123.52 is not unlimited. There must be: (1) new and changed circumstances subsequent to the initial order ( State ex rel. Cuyahoga Hts. Bd. of Edn. v. Johnston, 58 Ohio St.2d 132, 12 O.O.3d 128, 388 N.E.2d 1383); (2) fraud ( State ex rel. Kilgore v. Indus. Comm., 123 Ohio St. 164, 174 N.E. 345); (3) clerical error ( State ex rel. Weimer v. Indus. Comm., 62 Ohio St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149); or (4) error by an inferior administrative tribunal or subordinate hearing officer (see State ex rel. Manns v. Indus. Comm., 39 Ohio St.3d 188, 529 N.E.2d 1379).
None of these factors exists here. Of the four, the last would appear the most applicable, but there has been no allegation either that the first district hearing officer meant to include, but inadvertently omitted, the additional language or that the allowance of the claim is defective without it.
The January 12, 1988 order also violated State ex rel. Mitchell, supra, since it did not specify the evidence on which the hearing officer relied to conclude that claimant's condition was dust-induced. Vacation of the order is thus appropriate for this reason.
Accordingly, the judgment of the appellate court allowing the writ is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.