Summary
In Saunders, the commission's decision to exercise its continuing jurisdiction did not touch upon whether the employee had a right to participate.
Summary of this case from State ex rel. Belle Tire Distribs., Inc. v. Indus. Comm'n of OhioOpinion
No. 89-145
Submitted April 17, 1990 —
Decided June 27, 1990.
Workers' compensation — Nature of allowed disability deleted from hearing officer's and board of review's orders — R.C. 4123.52 grants Industrial Commission continuing jurisdiction to modify or change former orders where mistake has occurred.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-509.
Appellee, Dee Orman Saunders, was injured while in the course of and arising from his employment with appellant Metal Container Corporation ("Metal Container"), a self-insured employer. Appellee completed and Metal Container certified a "C-50 Application for payment of Compensation and Medical benefits" that listed "back spr. back" as the injury sustained. The Industrial Commission district hearing officer's order of January 11, 1985 recognizing appellee's claim and the Columbus Regional Board of Review's affirmance of June 12, 1985, however, merely listed the allowed condition as "back."
Metal Container moved the commission "to clarify the allowed conditions in the claim. * * * Per order of 1/11/85, claim recognized for `back.'" On March 21, 1986, a second district hearing officer issued the following order:
"It is the finding of the Hearing Officer that this claim has been recognized for the following disabilities: TO BE CLARIFIED AT THIS HEARING.
"* * * [T]he issue to be considered at this hearing is: Employer's Motion * * * to clarify the allowed conditions.
"* * * [I]t is the finding of the Hearing Officer that: No official prior condition was established in this claim, but rather, a condition merely described as `back' was selected by a typist to appear in orders.
"Therefore, a condition merely described as `back' is now deleted, but such a condition is neither allowed nor disallowed in this claim.
"* * * [T]he prior allowance is now to be clarified to be read as follows: `lumbosacral strain with degenerative joint disease of the lumbar spine.'"
Commission staff officers ultimately affirmed this order on February 2, 1987.
Appellee filed a complaint in mandamus in the Court of Appeals for Franklin County alleging that the commission had no jurisdiction to delete "back" from the allowance initially contained in the January 11, 1985 and June 12, 1985 orders. The court agreed and granted the writ.
Appellants now appeal to this court as of right.
Michael J. Muldoon, for appellee.
Porter, Wright, Morris Arthur, Warren H. Morse and Darrell R. Shepard, for appellant Metal Container Corp.
Anthony J. Celebrezze, Jr., attorney general, and Jeffery W. Clark, for appellant Industrial Commission.
R.C. 4121.36(B) provides in part:
"Any decision by a district hearing officer, a regional board of review, a staff hearing officer, or the commission shall be in writing and contain the following elements:
"* * *
"(4) Description of the part of the body and nature of the disability recognized in the claim."
The self-insured employer's original certification contained both descriptions. When transferred to the January 11, 1985 and June 12, 1985 orders, however, the nature of disability, i.e., "spr." ("sprain"), was somehow deleted. R.C. 4121.36(B)(4) compliance thus warranted remedial action, but not to the extent seen here.
Analysis turns to R.C. 4123.52, which grants the commission continuing jurisdiction to modify or change former orders. While not unlimited, invocation of this statute may be appropriate in certain cases of mistake. See Indus. Comm. v. Dell (1922), 104 Ohio St. 389, 135 N.E. 669; State v. Ohio Stove Co. (1950), 154 Ohio St. 27, 42 O.O. 117, 93 N.E.2d 291. In the case at bar, the appearance of a statutorily defective allowance in the 1985 orders constituted such a mistake.
This error could have been corrected simply by amending the allowed condition to reflect "back sprain" instead of just "back." The commission, however, went one step further and narrowed the named body part from "back" to "lumbosacral" and "lumbar spine." It did so, moreover, despite the absence of any allegation that its designation of "back" as the affected body part was wrong. As such, the commission's continuing jurisdiction did not allow the extent of the correction attempted here.
Appellants also challenge appellee's resort to mandamus, contending that the commission's February 2, 1987 order could have been appealed under R.C. 4123.519. Appellants, however, misdefine the issue before us. The relevant question here is not one of appellee's right to participate in the State Insurance Fund for a "back" injury but is instead whether a mistake sufficient to invoke the continuing jurisdiction provisions of R.C. 4123.52 existed. We find this latter question to be the proper subject matter for a writ of mandamus. State, ex rel. Highway Co., v. Indus. Comm. (1980), 70 Ohio App.2d 41, 24 O.O. 3d 37, 434 N.E.2d 279.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.