Opinion
No. 79-37
Decided June 27, 1979.
Mandamus — Prohibition — Writs denied, when.
IN MANDAMUS.
IN PROHIBITION.
Everett Bunch, relator herein, has been found permanently and totally disabled on account of his January 28, 1974, industrial injury he suffered within the scope of his employment with the Chrysler Corporation. Chrysler is a self-insured employer for purposes of workers' compensation.
By letter dated December 12, 1978, Chrysler notified Bunch that it intended to deduct his disability retirement benefits that he had been receiving from Chrysler from his workers' compensation benefits based upon advice by counsel and informal consultation with the Industrial Commission.
On January 13, 1978, the Court of Appeals for Clark County held in Green v. Stringer (1978), 58 Ohio App.2d 53, that pursuant to R.C. 4123.56, disability retirement benefits financed solely by the employer could also be deducted from workers' compensation benefits for permanent and total disability. In Green, it was the commission's position that that statute only authorized these deductions from benefits for temporary total disability.
Bunch, together with the Ohio AFL-CIO, filed a complaint in mandamus and prohibition in this court alleging that the proposed action of the commission concerning the adoption of a resolution permitting such offsets is contrary to law and is arbitrary and capricious.
There is no indication in the record that relators filed any motion with the commission or the Bureau of Workers' Compensation seeking administrative relief.
Messrs. Clayman Jaffy, Mr. Stewart R. Jaffy, and Mr. Malcolm L. Goodman, for relators.
Mr. William J. Brown, attorney general, and Mr. Michael J. Hickey, for respondents.
Coolidge, Wall, Matusoff, Womsley Lombard Co., L.P.A., Mr. Joseph A. O'Friel, Mr. John C. Lombard and Mr. Roger J. Makley, for intervening respondent Chrysler Corp.
Relators have failed to allege facts giving rise to a clear legal duty entitling them to the writ of mandamus. Furthermore, relators do not allege that the commission lacks jurisdiction to act, but only that such action would be erroneous. If a tribunal has jurisdiction to determine the question before it, a writ of prohibition will not issue to prevent it from exercising that authority. State, ex rel. McCaffrey, v. Cleveland (1978), 54 Ohio St.2d 346, 347.
Accordingly, the writs of mandamus and prohibition are denied.
Writs denied.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.