State ex rel. Harry Wolsky Stair Builder, Inc. v. Industrial Commission

Per Curiam. Ohio Adm. Code 4121-7-17(C) states in part: “* * * The Commission and Bureau shall also have the right to make adjustments as to classifications, allocation of wage expenditures to classifications, amount of wage expenditures, premium rates and/or amount of premium. No adjustments, however, shall be made in an employer’s account which result in reducing the amount of premium below the amount of contributions made by the employer to the fund for the periods involved, except in reference to adjustments for the semiannual and/or adjustment periods ending within twenty-four months immediately prior to the beginning of the current payroll reporting period, when such errors affecting the reports and the premium are brought to the attention of the Commission and Bureau by an employer through written application for adjustment or found by the Commission and Bureau.” Appellant initially contends, in essence, that a bureau overpayment error negates Ohio Adm. Code 4121-7-17(C)’s two-year refund limitation period and entitles appellant to full restitution. This contention lacks merit. Whether an error creates an underpayment or overpayment, adjustment is limited to the period “twenty-four months immediately prior to the beginning of the current payroll reporting period * * *.” No distinction is made between employer and bureau error, nor is a different refund limitation period created for the latter. The bureau, in promulgating this rule, perhaps anticipated the inevitability of error, including its own. Had it desired to include the exemption appellant advances, it could have done so. Instead, the bureau provided that all errors, regardless of by whom and in whose favor, would be treated uniformly. Appellant next asserts that an equal protection violation ensues from overassessment since “similarly situated manufacturers competing with Appellant were afforded more [224] favorable (lower) rates.” This, too, is unpersuasive. An appropriate equal protection analysis appears in Cleveland v. Indus. Comm. (1983), 8 Ohio App. 3d 7, 8 OBR 7, 455 N.E. 2d 1085. There, the commission attempted to collect significant underpayments made by the city of Cleveland more than two years prior. Cleveland challenged the commission’s actions, alleging, inter alia, a violation of equal protection. The trial court found, and the appellate court agreed, that “[n]o party, other than Plaintiff, has ever been billed or collected from after a two year period to the knowledge of all the witnesses.” Id. at 8, 8 OBR at 9, 455 N.E. 2d at 1087. The trial court’s determination that the commission “ ‘singled out the City of Cleveland for payment of previously underbilled Workers’ Compensation premiums more than two years after the rate effective for the year 1976 was established’ ” sufficiently supported “the findings that plaintiff received disparate treatment in violation of the foregoing constitutional provisions.” Id. at 10, 8 OBR at 11, 455 N.E. 2d at 1089. In the case at bar, there is no evidence that the commission has ever refunded overpayments made in excess of two years to other employers. Because appellant has not demonstrated such unequal treatment, its equal protection contention fails. Appellant’s due process argument is similarly unconvincing, since the allegations on which it is premised are inaccurate. First, appellant did appeal the classification assessment on two occasions — first to the commission’s adjudicating committee on September 26,1986 and then to the commission on May 21, 1987. Second, there is no evidence of record that either the commission or the bureau ever denied a request for hearing. To the contrary, the record does not show that appellant ever requested one. We thus find no evidence to support the claimed due process violation. Finally, appellant argues that the bureau has a fiduciary duty to it that requires the bureau to make full restitution. This is again incorrect. Appellee’s sole fiduciary responsibility is to the State Insurance Fund. State, ex rel. Weimer, v. Indus. Comm. (1980), 62 Ohio St. 2d 159, 16 O.O. 3d 174, 404 N.E. 2d 149. Appellee occupies no such relationship to any employer, including appellant. Accordingly, the judgment of the court of appeals is affirmed. Judgment affirmed. Moyer, C.J., Sweeney, Douglas, H. Brown and Resnick, JJ., concur. Holmes and Wright, JJ., dissent.