State ex rel. McGinnis v. Industrial Commission

Per Curiam. Two issues are presented: (1) Did claimant have an adequate remedy at law via an R.C. 4123.519 appeal? and, if not, (2) May appellant recoup temporary total compensation paid from September 30, 1982 by deducting it from claimant’s future compensation? We answer “no” to both questions. R.C. 4123.519 provided, at the time relevant herein, in part: “The claimant or the employer may appeal a decision of the industrial commission * * *, other than a decision as to the extent of disability, to the court of common pleas * * *.” (Emphasis added.) [82] It also directed the claimant to: “* * * [W]ithin thirty days after the filing of the notice of appeal, file a petition containing a statement of facts * * * showing a cause of action to participate or to continue to participate in the fund * * *.” Appellant maintains that the relevant issue here does not involve extent of disability and is therefore appealable. We disagree. In Miraglia v. B.F. Goodrich Co. (1980), 61 Ohio St. 2d 128, 15 O.O. 3d 163, 399 N.E. 2d 1234, we found that mandamus was the proper remedy for a self-insured employer seeking to offset payment of total disability compensation against a claimant’s disability pension. We reasoned: “ ‘* * * For the purpose of appeal under R.C. 4123.519, the question of allowance or rejection of these various claims is, by the terms of R.C. 4123.519, appealable * * *. Once finally allowed, however, the question involving the computation of monetary payment therefor is one as to “extent of disability.” * * *’ ” Id. at 130-131, 15 O.O. 3d at 164, 399 N.E. 2d at 1236, citing Zavatsky v. Stringer (1978), 56 Ohio St. 2d 386, 403, 10 O.O. 3d 503, 513, 384 N.E. 2d 693, 703. We thus concluded: “In the instant cause, the question concerns the extent of participation, since Miraglia’s right to participate in the Workers’ Compensation Fund has already been determined. Mandamus is the appropriate procedure to determine whether Goodrich can offset the benefits given to Miraglia under R.C. 4123.56. Accordingly, the question as presented does not fall within the purview of R.C. 4123.519, and, therefore, it is not appealable to the Court of Common Pleas.” Miraglia, supra, at 181, 15 O.O. 3d at 165, 399 N.E. 2d at 1237. Our application of Miraglia herein nullifies appellant’s reliance on State, ex rel. O.M. Scott & Sons Co., v. Indus. Comm. (1986), 28 Ohio St. 3d 341, 28 OBR 406, 503 N.E. 2d 1032; Seabloom Roofing & Sheet Metal Co. v. Mayfield (1988), 35 Ohio St. 3d 108, 519 N.E. 2d 358; State, ex rel. Wean United, Inc., v. Indus. Comm. (1988), 37 Ohio St. 3d 203, 524 N.E. 2d 896; and State, ex rel. Y&O Coal Co., v. Indus. Comm. (1988), 40 Ohio St. 3d 165, 532 N.E. 2d 745. Those opinions discussed the remedy question within the context of commission decisions that involved neither extent of disability nor right to participate. Since Miraglia, however, indicates that the present order involves extent of disability, O.M. Scott and progeny are inapplicable. We also decline to apply State, ex rel. Weimer, v. Indus. Comm. (1980), 62 Ohio St. 2d 159, 16 O.O. 3d 174, 404 N.E. 2d 149, and State, ex rel. Consolidation Coal Co., v. Indus. Comm. (1985), 18 Ohio St. 3d 281, 18 OBR 333, 480 N.E. 2d 807. Both cases addressed the commission’s exercise of continuing jurisdiction pursuant to R.C. 4123.52 to modify a prior final order. This situation does not exist here. Turning to the merits of appellant’s recoupment request, appellant relies heavily on State, ex rel. DeLong, v. Indus. Comm. (1988), 40 Ohio St. 3d 345, 533 N.E. 2d 729. Upon review, we determine that appellant’s reliance on DeLong is misplaced since that case, too, is distinguishable. In DeLong, an employer appealed a district hearing officer’s award of temporary total disability compensation. That appeal, under R.C. 4123.515, stayed the payment of compensation pending a regional board hearing. The self-insured employer, however, mistakenly paid compensation during the pendency of that hearing. After discovering its error, the employer sought to offset the tern [83] porary total disability compensation paid against the temporary partial disability compensation that was ultimately awarded over the same period. Our analysis focused on the “ ‘determination of the recipient’s entitlement’ * * * at the time payments were made.” (Citation omitted.) (Emphasis sic.) Id. at 347, 533 N.E. 2d at 730. In ultimately upholding the employer’s right to recovery, we reasoned that because of R.C. 4123.515’s stay on payment of compensation pending the regional board order, the claimant could not have had a good faith belief that he was entitled to the funds. See, also, Weimer, supra. In the present case, R.C. 4123.56 provided: “In the case of an employer who has elected to pay [temporary total] compensation direct, payments shall be for a duration based upon the medical reports of the attending physician. If the employer disputes the attending physician’s report, payments may be terminated only upon application and hearing by a district hearing officer. Payments shall continue pending the determination of the matter, however, payment 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 capable of returning to his former position of employment.” Thus, so long as claimant’s physician did not release him to return to his former position, appellant was statutorily required to pay temporary, total disability compensation until a commission hearing officer held otherwise. This eventually occurred on January 18, 1984. In view of appellant’s duty, claimant was entitled to the funds. DeLong and Weimer are thus distinguishable. Moreover, the subsequent discounting of Dr. Glorioso’s reports by the commission, upon which reports temporary total disability compensation over the relevant period was based, does not transform R.C. 4123.56’s mandated payments into a recoupable overpayment. In State, ex ret. Eaton Corp., v. Lancaster (1988), 40 Ohio St. 3d 404, 534 N.E. 2d 46, the commission continued temporary total disability compensation despite a finding that the claimant’s condition had become permanent. We agreed with the self-insured employer that, in retrospect, continued temporary total disability compensation was not supported by “some evidence,” but declined to permit recovery from the claimant. We reasoned that under R.C. 4123.515, once compensation was ordered by the regional board, the employer was required to continue payment, regardless of appeal, until the award was terminated by an administrative order. We concluded: “This section [R.C. 4123.515] provides that once compensation has been awarded at an administrative hearing level higher than that of district hearing officér, a self-insured employer must pay same. Thus, upon receipt of such an order, the 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 the disagreement here, Eaton was required to pay compensation and claimants were entitled to its receipt.” Id. at 410, 534 N.E. 2d at 53. In light of R.C. 4123.56 and the reasoning set forth in Eaton, the court of appeals correctly determined the claimant’s entitlement to the temporary total disability compensation and consequent absence of overpayment. We thus find that appellant’s re [84] quest for recoupment from the claimant-appellee via an offset against future compensation is improper. Accordingly, the appellate court’s judgment is affirmed. Judgment affirmed. Moyer, C.J., Sweeney, Douglas, H. Brown and Re snick, JJ., concur. Wright, J., concurs in judgment only. Holmes, J., dissents.