State Ex Rel. Lilly v. Industrial Commission

184 N.E.2d 501, 115 Ohio App. 159, 20 Ohio Op. 2d 262, 1961 Ohio App. LEXIS 589

• Court: Ohio Court of Appeals
• Decided: May 9, 1961
• Docket: 6484
• Status: Published

Opinions

Per Curiam.

The employee of a noncomplying employer had his claim allowed by the Industrial Commission of Ohio, and the noncomplying employer appealed the allowance of the claim to the Court of Common Pleas of Franklin County where the decision of the Industrial Commission was upheld.

The Court of Common Pleas, under the provisions of Section 4123.521, Revised Code, also found that the employer’s appeal was a vexatious appeal within the meaning of that section, and made an assessment of ten per cent of the award, not to exceed $500, against the employer.

The judgment of the Common Pleas Court was certified to the Industrial Commission and it awarded the weekly benefits to the employee and paid the medical bills, but refused to pay the $500, claiming it was assessed against the employer and that the law does not provide for the payment of that amount from the state’s funds. The employee then filed an action in mandamus against the Industrial Commission seeking to have the court order it to pay the assessment for the vexatious appeal out of the surplus funds, as provided by the last paragraph of Section 4123.75, Revised Code. The trial court held that the employee was entitled to the writ of mandamus and that the Industrial Commission was to pay the $500 out of the surplus funds.

The Industrial Commission of Ohio has appealed the order granting the writ of mandamus, to this court. The state makes four assignments of error, which are as follows:

“I. Error supervened by the trial court’s failure to require allegation of a demand and by its failure also to require proof of a demand.

“II. Determination of amount of compensation by a court of law is error.

“III. A judgment in mandamus is based upon reversible error where it allows the writ despite a lost plain, adequate remedy in ordinary course of law, and where it allows the writ, despite an available plain, adequate remedy in ordinary course of law.

“IV. It is error to compel by writ of mandamus payment from a fund where such payment is contrary to the rules, laws and constitutional provisions whereby such fund is established, maintained and directed.”

Having considered the assignments of error and the record of the proceedings in the trial court, two members of this court are of the opinion that the trial court properly appraised the rights of the employee of the noncomplying employer, and the judgment will be, and hereby is, affirmed.

Judgment affirmed.

Dusty and Bryant, JJ., concur.