State ex rel. Napier v. Industrial Commission

556 N.E.2d 170, 52 Ohio St. 3d 82, 1990 Ohio LEXIS 259

• Court: Ohio Supreme Court
• Decided: June 27, 1990
• Docket: No. 89-146
• Status: Published

Opinion

Per Curiam.

A writ of mandamus will not issue where the relator has a plain and adequate remedy in the ordinary course of the law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St. 3d 28, 6 OBR 50, 451 N.E. 2d 225. Administrative rehearing is an adequate remedy. See Kaufman v. Newburgh Heights (1971), 26 Ohio St. 2d 217, 55 O.O. 2d 462, 271 N.E. 2d 280. Under Ohio Adm. Code 4121-3-20 (G)(1)(a) and (b), a party may request a VSSR rehearing within thirty days after the initial order’s receipt if relevant new evidence is submitted or the initial order was based on an obvious mistake of fact. Because appellee did not pursue this remedy, mandamus is unavailable.

We recognize that mandamus relief was granted in State, ex rel. Cotterman, v. St. Marys Foundry (1989), 46 Ohio St. 3d 42, 544 N.E. 2d 887, despite the failure to seek a VSSR rehearing. That case, however, is distinguishable from that at bar. Unlike Cotterman, appellee has not shown that a VSSR rehearing was either inadequate or unavailable. In Cotterman, the record did not show that the claimant could have satisfied Ohio Adm. Code 4121-3-20(G)(1)’s prerequisites. Here, the record shows that the initial order could have been based on an obvious mistake of fact, i.e., that appellee had failed to cite a specific VSSR. For this reason we are not persuaded that appellee was without an adequate remedy at law.

Accordingly, the judgment of the court of appeals is reversed.

Judgment reversed.

Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown and Resnick, JJ., concur.