State ex rel. Eaton Corp. v. Industrial Commission

610 N.E.2d 992, 66 Ohio St. 3d 180, 1993 Ohio LEXIS 837
CourtOhio Supreme Court
DecidedMay 5, 1993
DocketNo. 92-713
StatusPublished
Cited by18 cases

This text of 610 N.E.2d 992 (State ex rel. Eaton Corp. 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. Eaton Corp. v. Industrial Commission, 610 N.E.2d 992, 66 Ohio St. 3d 180, 1993 Ohio LEXIS 837 (Ohio 1993).

Opinion

Per Curiam.

Appellant alleges that the commission abused its discretion in both awarding impaired earning capacity benefits and refusing to reduce the award by the amount of temporary total disability compensation previously overpaid. We disagree with appellant’s contentions but, upon review, find that the commission abused its discretion by calculating claimant’s impaired earning capacity as it did. Accordingly, the judgment of the court of appeals is reversed in part and affirmed in part.

Appellant’s initial propositions invoke res judicata in response to the commission’s refusal to reduce claimant’s award by the amount of temporary total disability compensation overpaid. Appellant’s argument is based on the November 14, 1986 order, in which staff hearing officers, citing State ex rel. Martin, supra, found a “recoupable” overpayment of temporary total disability compensation and ordered reimbursement from the surplus fund. Appellant was fully reimbursed from the fund. On October 27, 1987, a district hearing officer — presumably unaware that appellant had been repaid — ordered permanent partial disability compensation paid “less any TT overpaid,” in effect ordering claimant to reimburse appellant as well. Claimant’s request for reconsideration generated an April 21, 1988 order that deleted the language ordering a setoff against previously paid benefits for temporary total disability. The commission affirmed on October 20, 1988.

Appellant claims that the April 21, 1988 order — by omitting the setoff language — impermissibly altered the November 14, 1986 order, which had become final. This action, according to appellant, violated res judicata. Appellant’s argument, however, assumes that the earlier order authorized repayment from both the surplus fund and the claimant — an assumption with which we take issue.

The only express directive in the November 14, 1986 order called for repayment from the surplus fund, not from claimant. We find that the order’s reference to “recoupment” and the Martin decision — on which appellant apparently relies — is insufficient to establish that the order contemplated repayment from the claimant. As to the former, the mere use of the term “recoupment” in cases dealing with repayment by a claimant does not persuade us that the term has developed a special connotation that sets it apart from synonyms such as “repayment” or “reimbursement.”

[183]*183So, too, with Martin. While Martin factually involved repayment by a claimant, its principles extend to reimbursement from the surplus fund to self-insured employers such as appellant. State ex rel. DeLong v. Indus. Comm. (1988), 40 Ohio St.3d 345, 533 N.E.2d 729. The order’s reference to Martin, therefore, does not necessarily mean that recovery from claimant was necessarily contemplated.

For these reasons, we find that the commission’s April 21,1988 and October 20, 1988 orders did not modify the November 14, 1986 final order. The later orders did not address appellant’s entitlement to surplus fund reimbursement, and since repayment from the claimant was not ordered initially, the deletion of the setoff language from the October 27, 1987 order did not conflict with the earlier order. The only modification provided by the April 21, 1988 and October 20, 1988 orders was to the October 27, 1987 order, which was not final, having been kept alive by claimant’s reconsideration motion. Res judicata was not, therefore, violated.

Appellant also urges vacation of the May 17, 1990 award of impaired earning capacity benefits because (1) due process was violated and (2) it is not supported by “some evidence,” as State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936, demands. As to the former, we agree that claimant’s submission of his May 24, 1990 affidavit to the commission after the May 17, 1990 hearing on impaired earning capacity, coupled with claimant’s apparent failure to provide a copy to appellant, foreclosed response from appellant and thereby violated due process. Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc. (1974), 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447; State ex rel. Owens-Illinois, Inc. v. Indus. Comm. (1991), 61 Ohio St.3d 456, 575 N.E.2d 202. We do not, however, find that the order must fall as a result. State ex rel. Canter v. Indus. Comm. (1986), 28 Ohio St.3d 377, 28 OBR 437, 504 N.E.2d 26, permits us to simply disregard the affidavit and proceed with our review of the remaining evidence. Unfortunately, inconsistent findings make it impossible to tell what the commission actually found, precluding us from reviewing the order for “some evidence.”

Former R.C. 4123.57(A) stated that:

“[T]he employee shall receive per week sixty-six and two-thirds per cent of the impairment of his earning capacity * * *, not to exceed a maximum amount of weekly compensation which is equal to the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code * * Am.Sub.H.B. No. 1282, 137 Ohio Laws, Part II, 3946.

A determination would under R.C. 4123.57(A) be simple if mere impairment of earnings were involved. Instead, it involves earning capacity, which [184]*184connotes not what claimant did earn, but what he or she could have earned. “Capacity,” while statutorily undefined, logically encompasses the universe of jobs that a claimant, at a given time, and based on age, education, skills, physical ability, etc., can do. It is noteworthy that R.C. 4123.57(A) directs the payment of sixty-six and two-thirds percent of the claimant’s impaired earning capacity. It thus presumably intended that claimant’s earning capacity impairment be expressed as a dollar figure.

Because impairment of earning capacity derives from a comparison of claimant’s preinjury and postinjury earning capacity, State ex rel. Pauley v. Indus. Comm. (1990), 53 Ohio St.3d 263, 559 N.E.2d 1333, two separate earning capacity determinations are necessary. Given our observations above, it follows that preinjury and postinjury earning capacity should be represented monetarily as well, since common denomination facilitates the examination that Pauley mandates and the result that R.C. 4123.57(A) directs. Where the earning capacities are uniformly denominated, the commission need only deduct the dollar value of the employee’s postinjury capacity from his or her preinjury capacity in order to determine the t amount of impairment. The commission, however, has employed a different formula, using average weekly wage (“AWW”) and medical impairment to designate claimant’s preinjury and postinjury earning capacities respectively. For the reasons to follow, we find that this method constitutes an abuse of discretion.

The formula’s initial assumption — that AWW represents claimant’s preinjury earning capacity — will not always hold true.

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Bluebook (online)
610 N.E.2d 992, 66 Ohio St. 3d 180, 1993 Ohio LEXIS 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-eaton-corp-v-industrial-commission-ohio-1993.