State ex rel. Cobble v. Industrial Commission

748 N.E.2d 29, 92 Ohio St. 3d 22, 2001 Ohio LEXIS 1537
CourtOhio Supreme Court
DecidedJune 13, 2001
DocketNo. 99-1872
StatusPublished
Cited by8 cases

This text of 748 N.E.2d 29 (State ex rel. Cobble v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Cobble v. Industrial Commission, 748 N.E.2d 29, 92 Ohio St. 3d 22, 2001 Ohio LEXIS 1537 (Ohio 2001).

Opinion

Per Curiam.

Appellant-claimant, Bobby E. Cobble, was industrially injured on March 24, 1986. Shortly thereafter, claimant submitted information to his workers’ compensation claim file indicating that in the year preceding injury he had worked only twenty-seven weeks, missing the other twenty-five weeks due to illness or layoff.

On February 24, 1987, a claims examiner for appellee Bureau of Workers’ Compensation tentatively set claimant’s average weekly wage (“AWW”) at $136.79, by dividing claimant’s total wages for the year prior to injury by fifty-two weeks. That calculation was done on bureau form C-166 and was submitted to the claim file. No formal order from either the bureau or appellee Industrial Commission of Ohio, however, was issued with respect to this AWW calculation. Approximately three months later, the AWW was revised to $183.47 by dividing the total wages by forty weeks. Again, the same form was used and no formal bureau or commission order followed.

On March 19, 1997, claimant moved the bureau to reset his AWW at $271.82, based upon information that was before the bureau when it originally set the AWW. Claimant asked that all paid compensation in the claim be adjusted, based upon this new AWW. On March 26, 1997, the bureau issued an order, stating:

“The average weekly wage has been reset according to the information that was mis-calculated in the file. The new AWW has been set at $271.82.

“This BWC Order is based on:

“The information in the file that has been previously calculated at the wrong rate.”

That order was apparently not administratively appealed.

On April 1, 1998, claimant again asked that all past compensation be adjusted based upon the new calculation. The bureau referred claimant’s motion to the commission for adjudication, noting in its referral that previously awarded compensation would not be adjusted for a period of more than two years from the date of the request to reset the AWW. In June 1998, a district hearing officer (“DHO”) ordered:

“[T]he C-86 Motion filed by Claimant on 04/01/1998, requesting that all compensation previously paid be adjusted, is denied. The claimant filed a motion on 4/1/98 to reset the Average Weekly Wage. The BWC granted the motion and adjusted the compensation paid back two years. The claimant subsequently filed a motion requesting that any compensation paid since the date of injury also be [24]*24adjusted. The District Hearing Officer finds that the Industrial Commission has no jurisdiction to make a modification more than two years prior to the date of the request. Therefore, the C-86 is denied.

“This order is based on R.C. 4123.52, Hearing Officer Policy 5.2, the evidence in file and the evidence adduced at hearing.”

On appeal, a staff hearing officer modified the DHO’s order to the following extent:

“The Staff Hearing Officer finds that if the evidence was on file at the time of the original application for benefits that this fact would not change the applicability of RC 4123.52 [or of] Hearing Officer Policy 5.2. The claimant did not contest the setting of the Average Weekly Wage by the Bureau of Workers’ Compensation on 05/15/1987, and as such this setting of the Average Weekly Wage was encompassed by this rule.

“In all other respects, the District Hearing Officer is affirmed.”

Further appeal was refused.

Claimant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in denying his motion. The court of appeals disagreed and denied the writ.

This cause is now before this court upon an appeal as of right.

At issue is the commission’s continuing jurisdiction under R.C. 4123.52:

.“[T]he commission shall not make any modification, change, finding, or award which shall award compensation for a back period in excess of two years prior to the date of filing application therefor.”

The parties agree that this statute controls. They disagree on whether adjustment to all prior compensation offends the two-year bar. The appellees argue that the issue has been conclusively decided by a series of unreported decisions from the Court of Appeals for Franklin County. These cases1 cited by appellees have uniformly held that retroactive compensation adjustment following an AWW recalculation is limited to the two years prior to the claimant’s recalculation motion. Claimant and amicus curiae seek to distinguish these cases, while offering competing theories in support of their position.

The distinctions proposed by claimant and amicus are inconsequential. The more critical question — which claimant does not clearly pose but which may be inferred from his argument — is what constitutes an “application.” Claimant [25]*25asserts that the point from which to measure the two-year period is not, as the commission found, his 1997 recalculation motion. It is, instead, he urges, the date when he first provided the correct information to the bureau in conjunction with his original application for temporary total disability benefits.

This is an argument unique to this case. In the unreported appeals court decisions cited by appellees, the parties did not dispute that the date of the formal motion is the proper measuring point if the statute of limitations is to be applied and clearly did not offer an earlier “application” as an alternate yardstick. They instead devoted their efforts solely — and unsuccessfully — to creating a judicial exception to R.C. 4123.52’s language.

This distinction, however, is only as consequential as the merits of claimant’s proposition. In advocating the 1987 application/wage evidence date as the benchmark, claimant argues that (1) the AWW figure proposed in the formal 1997 motion was supported not by new evidence but by the wage evidence that the bureau has had in its possession for a decade, and (2) inherent in the evidentiary submission was a request that the AWW be properly set. He additionally stresses that, per R.C. 4123.95, statutes must be liberally construed in his favor.

While the term “application” is undefined by pertinent Revised or Administrative Code sections, clearly a petition or request for a specific act — whether on a bureau/commission form or as a motion — is an “application.” Moreover, given the liberal-construction mandate, surely, in some instances, the definition of “application” can be less rigid.

We find it unnecessary, however, to proceed with this analysis in this case based on claimant’s delay in seeking redress. In State ex rel. Welsh v. Indus. Comm. (1999), 86 Ohio St.3d 178, 712 N.E.2d 749, Welsh began drawing temporary total disability compensation in 1987. Because Welsh was also receiving money from his employer via a qualifying sickness-and-accident insurance plan, the bureau was statutorily required to offset that amount. The employer quit paying sickness and accident benefits on July 12, 1990, yet the bureau continued to deduct those benefits from Welsh’s temporary total compensation until December 13,1993.

On September 18, 1995, Welsh moved for recoupment of the improper deduction from July 13,1990 through December 13,1993. The commission granted the motion only in part, finding that because of R.C.

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Cite This Page — Counsel Stack

Bluebook (online)
748 N.E.2d 29, 92 Ohio St. 3d 22, 2001 Ohio LEXIS 1537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-cobble-v-industrial-commission-ohio-2001.