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State, Warner Swasey Co., v. Indus. Comm

Supreme Court of Ohio
Jun 8, 1977
363 N.E.2d 736 (Ohio 1977)

Opinion

No. 76-1363

Decided June 8, 1977.

Workmen's compensation — Mandamus — Writ denied, when — Issue moot.

APPEAL from the Court of Appeals for Franklin County.

Relator, The Warner Swasey Company, appeals from a denial by the Court of Appeals of a request for a writ of mandamus. The court found the issues to be moot and granted summary judgment for respondents.

On August 24, 1970, Frank Wright ("claimant") suffered a fractured left ankle in the course of his employment with relator. The claimant filed an application for compensation with the Bureau of Workmen's Compensation on October 15, 1970, and on March 19, 1973, claimant filed a C-92 Application for Determination of the Percentage of Permanent Partial Disability. Claimant's attending physician was of the opinion that there was no permanent partial disability as the result of the injury.

On August 16, 1973, claimant was examined by a physician of the Industrial Commission's medical section. He was of the opinion that the claimant exhibited a 12 percent permanent partial disability.

As a result of the conflict in medical opinions, the claimant was referred by the commission to an independent orthopedic specialist who concluded that the claimant exhibited a 16 percent permanent partial disability.

A hearing was held before an Attorney-Examiner on claimant's C-92 Application. The examiner issued the following order: "Refer to Chairman Gregory Stebbins for review and order."

The relator then filed an Application for Reconsideration. This application requested, in part, a hearing before all members of the Industrial Commission and that the relator be permitted to cross-examine the orthopedic specialist.

On September 16, 1974, the following order was issued: "That the Application for Reconsideration and Motion of Employer filed July 24, 1974 be denied."

On September 17, 1974, an order was issued in this same claim determining the claimant's percentage of permanent partial disability to be 16 percent.

An Application for Reconsideration of this award was filed by the relator on October 15, 1974, requesting a hearing before all three members of the Industrial Commission as well as the right to take the deposition of the orthopedic specialist.

On July 14, 1976, the relator filed a complaint in mandamus and a request for a preliminary injunction with the appellate court. The relator in its complaint prays that a writ of mandamus issue vacating the commission's orders of July 3, 1974, September 16 and September 17, 1974.

On September 9, 1976, the commission issued an order which states, in pertinent part, as follows:

"This action based upon the following motion made by Mr. Johnston.

"That the commission find from proof of record that there was an error in the medical report of Dr. Norman J. Rosenberg filed May 31, 1974 and that therefore the orders of July 3, 1974, September 16, 1974 and September 17, 1974 based on that report are hereby vacated.

"That the claim file be rescheduled for hearing, with notice to all parties, before Attorney-Examiner Scudiere upon claimant's C-92 Application filed on March 19, 1973. That the employer's motion of July 3, 1974, and July 24, 1974 be granted to the extent of this order. * * *"

On September 29, 1976, the commission amended Rule IC/WC-21-15 with regard to Claim Procedures Subsequent to Allowance and Rule IC/WC-21-09 concerning Procedures in the Processing of Applications for Benefits and thus broadened the scope of discovery available to an employer.

The cause is now before this court upon appeal as a matter of right.

Mr. Crede Calhoun, for appellant.

Mr. William J. Brown, attorney general, and Mr. James R. Piercy, for appellee Industrial Commission.


The specific orders which the relator is attacking have been vacated. Moreover, by adoption of the above cited amendments to claims procedures before it, the commission has substantially widened the scope of discovery available to an employer.

Because of these actions by the commission, the issues raised by the relator are moot, and the judgment of the Court of Appeals is therefore affirmed.

Judgment affirmed.

O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.


Summaries of

State, Warner Swasey Co., v. Indus. Comm

Supreme Court of Ohio
Jun 8, 1977
363 N.E.2d 736 (Ohio 1977)
Case details for

State, Warner Swasey Co., v. Indus. Comm

Case Details

Full title:THE STATE, EX REL. THE WARNER SWASEY CO., APPELLANT, v. INDUSTRIAL…

Court:Supreme Court of Ohio

Date published: Jun 8, 1977

Citations

363 N.E.2d 736 (Ohio 1977)
363 N.E.2d 736

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