State ex rel. Eaton Corp. v. Lancaster

Per Curiam. In each of the cases before us, continued payment of temporary total disability compensation was ordered despite a finding that the claimant’s condition had become permanent. The commission concedes that in each case, compensation was continued pursuant to a long-standing commission policy, as contained in a memorandum of October 21, 1987. Specifically, the policy provided that hearing officers, in their discretion, could continue temporary total benefits, despite evidence of permanency, where the claimant had applied for permanent total disability compensation and appeared to meet the permanent total disability criteria. We are presently asked to determine the validity of this policy. Upon review, we find it to be both substantively and procedurally invalid. R.C. 4123.56, in addressing temporary total disability, provided in pertinent part: “* * * [P]ayment shall not be made for such period when any employee has returned to work or when an employee’s treating physician has made a written statement that the employee is — 407 — capable of returning to his former position of employment. “After two hundred weeks of temporary total disability benefits, the claimant shall be scheduled for an examination by the industrial commission medical department for an evaluation to determine whether or not the temporary disability has become permanent.” In State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St. 2d 630, 632, 23 O.O. 3d 518, 519, 433 N.E. 2d 586, 588, we interpreted R.C. 4123.56 as follows: “ ‘An employee is entitled to be paid temporary total disability when injured and unable to work until one of the following three things occur[s]: (1) he has returned to work, (2) his treating physician has made a written statement that he is capable of returning to his former position of employment, or (3) the temporary disability has become permanent.’ ” (Emphasis added.) Ramirez thus contemplates that compensation paid pursuant to R.C. 4123.56 would, if the other statutory requirements were met, remain payable until the temporary disability became permanent without the statute specifically so stating. In State, ex rel. Bryant, v. Pinkerton’s, Inc. (1986), 24 Ohio St. 3d 79, 24 OBR 226, 493 N.E. 2d 544, and Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio St. 3d 31, 25 OBR 26, 494 N.E. 2d 1125, we held that the permanency question could be entertained at any point during a claimant’s receipt of temporary total compensation. State, ex rel. Dresser Industries, v. Indus. Comm. (Aug. 21, 1986), Franklin App. No. 85AP-212, unreported, and State, ex rel. Lynn, v. Indus. Comm. (July 15, 1986), Franklin App. No. 85AP-351, unreported, specifically stated that a finding of permanency precluded the payment of temporary total compensation. As noted in Lynn, “* * * [temporary total disability means a disability which is not permanent. * * * [T]he purpose of temporary total disability is not to compensate for those injuries which are diagnosed as permanent. * * *” Id. at 4. We agree. The commission policy attempts to enlarge the class of claimants currently eligible for temporary total compensation. In State, ex rel. Ashcraft, v. Indus. Comm. (1984), 15 Ohio St. 3d 126, 15 OBR 276, 472 N.E. 2d 1077, we struck down a similar attempt to alter this class, invalidating a resolution that declared incarcerated claimants ineligible for temporary total disability compensation. Despite our acknowledgement that “[t]he policy to be served by the resolution is not repugnant to the purposes of the Workers’ Compensation Act * * *” (id. at 129, 15 OBR at 278, 472 N.E. 2d at 1079), we held that “[s]uch a policy decision * * * must emanate from the General Assembly.” The problem the commission policy seeks to redress is caused by the sometimes lengthy interval between the decision to terminate temporary total compensation due to permanency and the decision to grant or deny permanent total disability. While hearing officers have initial authority to terminate temporary total compensation, a claimant must wait for a commission determination of his permanent total disability application. While such payments are retroactive, there is a potential for hardship. The commission would appear to be in the best position to remedy this situation. One solution would be to have the issue of continued temporary total benefits heard simultaneously with the claimant’s permanent total disability motion. Eligible claimants could then begin to receive permanent total disability compensation immediately upon termination of — 408 — temporary total benefits, thus eliminating the current delay. An examination of the Ohio Revised Code reveals no language that confines jurisdiction over permanent total disability matters exclusively to the commission. R.C. 4121.35(B)(1) specifically provides otherwise by permitting staff hearing officers to hear permanent total disability applications. Unfortunately, where determinations as to temporary total benefits are made at the district hearing level, utilization of staff hearing officers in a permanent total disability capacity will merely reduce, not eliminate, the time delay at issue. The problem could be resolved, however, by the commission’s authorization of staff hearing officers to directly consider any application to terminate temporary total compensation when an application for permanent total compensation is pending. Moreover, R.C. 4121.06(A) permits the commission to internally delegate to a commission deputy “[a]ny investigation, inquiry, or hearing which the commission is authorized to hold or undertake * * “Deputy,” pursuant to R.C. 4121.01(F), may be “any person employed by the industrial commission, * * * who possesses special, technical, scientific, managerial, professional, or personal abilities or qualities in matters within the jurisdiction of the commission, and who may be engaged in the performance of duties under the direction of the commission calling for the exercise of such abilities or qualities.” Thus, R.C. 4121.06(A) appears to afford the commission additional flexibility in implementing a mechanism whereby temporary total and permanent total questions are concurrently decided. Such a solution appears fair and sensible to all concerned: not only does it reduce temporary financial hardship to the claimant, but it also keeps the State Insurance Fund or self-insured employer from, in effect, subsidizing the commission’s seeming inability to process permanent total disability applications more expeditiously. We anticipate that a fair and workable solution will be implemented immediately. Realistically, however, this will not occur overnight. We also realize that a substantial number of claimants are receiving temporary total compensation pursuant to the commission’s policy. Recognizing this, we decline to apply this policy so as to terminate the temporary total benefits of such claimants before the commission has had an opportunity to resolve the time delay problem, and thus hold our decision to be prospective. In so holding, however, we direct the commission, within ninety days of this decision, or as soon thereafter as is practicable, to hold hearings to determine the eligibility of these claimants for total disability benefits. We also find that the commission policy, which was in the form of an internal memorandum ■ to hearing officers, was not promulgated in accordance with Ohio’s Revised Code and Administrative Code. R.C. 4121.30(A) requires: “All rules governing the operating procedure of the bureau of workers’ compensation, regional boards of review, and the industrial commission shall be adopted pursuant to Chapter 119. of the Revised Code, except that determinations of the bureau, district hearing officers, a regional board of review, a staff hearing officer, or the commission, with respect to an individual employee’s claim to participate in the state insurance fund are governed only by Chapter 4123. of the Revised Code.” (Emphasis added.) A literal reading of this statute appears to exempt only “[right] to participate” matters from R.C. Chapter — 409 — 119 requirements. The present cases do not involve a question of the claimants’ right to participate, but involve the extent of disability. Moreover, R.C. 119.01(A) reads in part: “Sections 119.01 to 119.13 of the Revised Code do not apply to actions of the industrial commission or the bureau of workers’ compensation under sections 4123.01 to 4123.94 of the Revised Code with respect to all matters of adjudication * * (Emphasis added.) R.C. 119.01(D) defines “adjudication” as “the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits or legal relationships of a specified person * * *.” (Emphasis added.) A finding by a district hearing officer on the issue of continued temporary total compensation is not, in view of the right to appeal under R.C. 4123.516, a determination “by the highest or ultimate authority” of the commission. Thus, procedures governing this area are not exempt from R.C. Chapter 119 requirements. R.C. 4121.31(A)(2) also requires the commission to adopt rules that “set forth any general policy and the principal operating procedures of the bureau or commission, including * * * [procedures for decision-making[.]” We find the policy in question to be a “[procedure for decision-making.” R.C. 4121.32(C)(12) specifically enumerates matters pertaining to temporary total compensation as included within the scope of “guidelines and bases for decision-making.” We conclude that the policy in question was thus subject to the rule-adoption requirements of R.C. 4121.31. In striking down the commission policy, we must next address the employers’ requests for relief. For the reasons to follow, we find mandamus, but not prohibition, to be a proper remedy. Relator Eaton contends that the memorandum policy is an exercise of legislative function beyond the scope of power conferred on the commission by law. Relator requests a writ of prohibition to forbid the commission from further reliance on the policy. We decline to issue such a writ, finding that the prerequisites for allowing such a writ have not been met. The writ of prohibition is “an extraordinary remedy, to be entertained with caution, and is to be exercised in the sound discretion of the court.” State, ex rel. Gilligan, v. Hoddinott (1973), 36 Ohio St. 2d 127, 65 O.O. 2d 310, 304 N.E. 2d 382, paragraph one of the syllabus. In order for a writ of prohibition to issue, the relator must establish that the court, official or tribunal against whom it is sought must be about to exercise judicial, or quasi-judicial power; the exercise of power must amount to an unauthorized usurpation of judicial power; and refusal of the writ would result in an injury for which there is no adequate remedy. State, ex rel. Dayton Power & Light Co., v. Kistler (1979), 57 Ohio St. 2d 21, 11 O.O. 3d 108, 385 N. E. 2d 1076. Prohibition tests and determines “solely and only” the subject matter jurisdiction of the inferior tribunal. State, ex rel. Staton, v. Common Pleas Court (1965), 5 Ohio St. 2d 17, 21, 34 O. O. 2d 10, 13, 213 N.E. 2d 164, 167. Where the tribunal has such jurisdiction, prohibition is not available to prevent or correct an erroneous decision. State, ex rel. Winnefeld, v. Common Pleas Court (1953), 159 Ohio St. 22.5, 50 O.O. 263, 112 N.E. 2d 27. It is also not a remedy for an abuse of discretion. Staton, supra. As stated in Kelley — 410 — v. State, ex rel. Gellner (1916), 94 Ohio St. 331, 341, 114 N.E. 255, 258: “In all cases where an inferior court has jurisdiction of the matter in controversy and keeps within the limits prescribed by law for its operation, the superior court should refuse to interfere by prohibition, for it should not consider whether the court below erred in the exercise of its powers, since it has nothing to do with the correctness of the rulings of the inferior court but only with its exercise of jurisdiction.” In the present cases, R.C. 4123.56 and 4123.58 clearly give the commission subject matter jurisdiction over total disability determinations. Since the requisite lack of jurisdiction is not present here, a writ of prohibition is inappropriate. We do, however, find mandamus to properly issue. This writ will not lie where commission determinations are supported by “some evidence.” State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St. 3d 18, 31 OBR 70, 508 N.E. 2d 936. Here, there was not “some evidence” that would support the commission’s finding that temporary total disability benefits were properly payable. The present medical evidence, as to each claimant, uniformly indicated that his condition had become permanent. The commission thus abused its discretion and mandamus will lie. Eaton has supplemented its petitions with a request that it be reimbursed from either the claimant or the State Surplus Fund for all temporary total compensation paid subsequent to the determination that the claimant’s condition was permanent. We deny recovery from either source. As to recoupment from the claimant, in State, ex rel. Martin, v. Connor (1984), 9 Ohio St. 3d 213, 9 OBR 523, 459 N.E. 2d 889, we defined the key consideration as being the determination of the recipient’s entitlement at the time payments were made. Where the recipient had an enforceable right to compensation at the time it was awarded, there is no right to recoupment. See, also, Indus. Comm. v. Dell (1922), 104 Ohio St. 389, 135 N.E. 669. The claimants in the present cases, at the time compensation was ordered, had an enforceable right to its receipt pursuant to R.C. 4123.515. That statute reads in part: “* * * [I]f the decision of the district hearing officer is appealed by the employer or the administrator, the bureau shall withhold compensation and benefits during the course of the appeal to the regional board of review, but where the regional board rules in favor of the claimant, compensation and benefits shall be paid by the bureau or by the self-insuring employer whether or not further appeal is taken. If the claim is subsequently denied, payment shall be charged to the surplus fund created under division (B) of section 4123.34 of the Revised Code, and if the employer is a state risk such amount shall not be charged to the employer’s experience and if the employer is a self-insurer such amount shall be paid to the self-insurer from said surplus fund.” This section provides that once compensation has been ordered at an administrative hearing level higher than that of district hearing officer, a self-insured employer must pay same. Thus, upon receipt of such an order, a claimant is entitled to those funds. Such is the case here, where Eaton was ordered to pay compensation by either staff hearing officers or a regional board. Thus, regardless of its disagreement here, Eaton was required to pay compensation and claimants were entitled to its receipt. Similarly, as to reimbursement — 411 — from the Surplus Fund the provision in R.C. 4123.515 providing therefor is prefaced with the words “[i]f the claim is subsequently denied.” (Emphasis added.) This suggests that Surplus Fund reimbursement is limited to those situations such as where the entire claim is disallowed subsequent to a payment of compensation. This does not include Surplus Fund reimbursement every time compensation is awarded and the award is then subsequently overturned. In summary, we find the commission policy invalid both substantively and procedurally. Mandamus being the proper vehicle for relief, the critical question is one of “some evidence.” In each case, the relied-on medical evidence uniformly indicated a permanent condition. There was thus not “some evidence” supporting the commission’s continuance of temporary total compensation. Accordingly, we hold as follows: In case No. 87-622, both commission motions for summary judgment are denied. Eaton’s motion for summary judgment is granted to the following extent: a writ of mandamus is granted ordering the commission to vacate its orders of December 10,1986 and February 26, 1987, to the extent that they find the claimant eligible for further temporary total compensation despite a finding of the condition’s permanency, and to make a determination in accordance with this opinion. Eaton’s request for a writ of prohibition and its request for a writ of mandamus to compel compensation recoupment from either the claimant or the Surplus Fund are denied. In case No. 87-1887, we deny the commission’s motion for summary judgment. We grant, in part, Eaton’s motion for summary judgment, granting a writ of mandamus ordering the commission to vacate its order of August 10, 1987, to the extent that it finds claimant entitled to further temporary total compensation despite a permanency finding, and to make a determination in accordance with this opinion. We deny Eaton’s request for a writ of prohibition and for a writ of mandamus compelling recoupment from either claimant or the Surplus Fund. As to case Nos. 88-205 and 88-1312, the judgments of the court of appeals are hereby affirmed, but the causes are remanded to the Industrial Commission for further proceedings in accordance with this opinion. Writ allowed in part and denied in part in case Nos. 87-622 and 87-1887. Judgments affirmed in case Nos. 88-205 and 88-1312. Moyer, C.J., Locher, Holmes, Wright and H. Brown, JJ., concur. Sweeney and Douglas, JJ., concur separately.