Opinion
No. 81-1754
Decided July 14, 1982.
Workers' compensation — Occupational disease claim — Appeal from decision of commission — R.C. 4123.519 as amended — Applicability — Mandamus remedy denied, when.
APPEAL from the Court of Appeals for Franklin County.
James Adams, an appellant herein, was employed for approximately 16 years as a "foam process operator" on a production line in the Dayton plant of General Motors Corporation's Inland Division, appellee herein. Appellant, who currently suffers from severe bilateral neurosensory hearing loss, contends that this condition is a direct consequence of prolonged exposure to excessive noise levels which he encountered during the course of his employment with appellee.
On August 27, 1975, appellant, claiming that he was totally disabled due to "severe lost of hearing from, loud noises from work ( sic)," filed a Form C-50 application for an industrial injury with the Industrial Commission (the commission). Despite the fact that appellant employed the "industrial injury" form, his claim, in reality, was predicated upon an occupational disease theory.
On May 25, 1976, appellant's claim was heard by a hearing officer and the record reveals that the claim was considered as both an occupational disease claim and an industrial injury claim. Notwithstanding the fact that two physicians' reports, indicating that appellant suffered from bilateral progressive hearing loss were before the hearing officer, appellant's claim was denied, on July 10, 1976, "for the reason that such disability was not the result of an injury or occupational disease sustained in the course of and arising out of employment with the named employer." Appellant's request for reconsideration of this decision was dismissed by the commission by order dated October 26, 1976.
Appellant then prosecuted an appeal to the Dayton Regional Board of Review (board of review). In preparation for this appeal, appellant's counsel sought, and received, documentation from appellee pertaining to noise levels at the plant where appellant had worked. The board of review, on October 6, 1977, vacated the hearing officer's decision and allowed appellant's claim for "bilateral progressive hearing loss."
The record indicates that, in February 1973, the Occupational Safety and Health Administration (OSHA) conducted an investigation of appellee's Dayton Plant. As a result of that investigation, OSHA cited appellee for 21 separate safety code violations, including one for excessive noise levels on the production line where appellant worked.
Appellee thereafter appealed the order of the board of review to the commission. By order dated September 11, 1978, the commission modified the order of the board of review and ordered that appellant's claim be allowed as an occupational disease and not as an industrial injury. However, all other aspects of the board of review's order were affirmed.
On November 20, 1978, appellee filed a request for reconsideration with the commission. The commission, by order dated July 19, 1979 (mailed August 29, 1979), modified its order regarding the date of appellant's disability. However, the commission affirmed the balance of its September 11, 1978 order.
Appellee filed a complaint for a writ of mandamus in the Court of Appeals on November 3, 1980 and alleged that: (1) the commission lacked jurisdiction since appellant had failed to file his claim within the applicable statute of limitations; (2) since an injury claim had been filed, the commission was without jurisdiction to consider the claim as one for occupational disease benefits; and (3) no evidence existed supporting a causal relation between the claimed hearing loss and appellant's employment.
On September 24, 1981, the Court of Appeals granted the writ on the grounds that the record was devoid of evidence establishing a causal relation between appellant's employment and his bilateral progressive hearing loss.
The cause is now before this court on an appeal as of right.
Smith Schnacke Co., L.P.A., Mr. Gary W. Auman and Ms. Edna Scheuer, for appellee.
Hochman Horwitz Co., L.P.A., and Mr. John R. Reed, Jr., for appellant Adams.
Mr. William J. Brown, attorney general, and Mr. Richard J. Forman, for appellant Industrial Commission.
The threshold consideration in this case is whether appellee has established the jurisdictional prerequisites for the issuance of a writ of mandamus. It is well-settled that entitlement to a writ of mandamus requires the relator to demonstrate "(1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law." (Emphasis added.) State, ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 42 [8 O.O.3d 36, 37]; State, ex rel. National City Bank, v. Bd. of Education (1977), 52 Ohio St.2d 81, 84 [6 O.O.3d 288, 290]; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141 [40 O.O.2d 141].
Our review of the record and pleadings in this case uncovers the fact that appellee is appealing the commission's order on reconsideration mailed August 29, 1979. Indeed, the precise language of appellee's complaint in mandamus unambiguously demonstrates the correctness of this proposition.
Paragraph eight of appellee's complaint in mandamus reads as follows: "On November 20, 1978, the Employer filed a Request for Reconsideration with the Industrial Commission. On 8/29/79, the Commission made the following order:
"Upon reconsideration of the order dated 9/11/78, the application for which was filed by the Employer on 11/20/78, the Staff Hearing Officers, Stern and Thaxton, modified said order to find that the correct date of disability is 11/29/74 and orders that an occupational disease claim number be assigned to this claim and as so modified the order of 9/11/78 is affirmed and approved." (Emphasis added.)
Furthermore, paragraph twelve of appellee's complaint in mandamus reads: "Relator states that for all the foregoing reasons, the Industrial Commission's August 29, 1979 award of occupational disease benefits to the Respondent is erroneous, arbitrary, unlawful and constitutes a gross abuse of discretion." (Emphasis added.)
R.C. 4123.519 , as amended and effective on January 1, 1979, permits a party to an occupational disease claim to appeal a decision of the commission to a court of common pleas if the claim accrued before January 1, 1979. Indeed, this remedy was recently reinforced in Morgan v. Western Electric Co. (1982), 69 Ohio St.2d 278, 282 [23 O.O.3d 271, 274], where this court ruled that R.C. 4123.519 as amended, "* * * is applicable to all decisions rendered by the Industrial Commission on or after January 1, 1979."
R.C. 4123.519 provides in pertinent part:
"The claimant or the employer may appeal a decision of the industrial commission or of its staff hearing officer made pursuant to division (B)(6) of section 4121.35 of the Revised Code in any injury or occupational disease case, other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state. If the claim is for an occupational disease the appeal shall be to the court of common pleas of the county in which the exposure which caused the disease occurred. Like appeal may be taken from a decision of a regional board from which the commission or its staff hearing officer has refused to permit an appeal to the commission. Notice of such appeal shall be filed by the appellant with the court of common pleas within sixty days after the date of the receipt of the decision appealed from or the date of receipt of the order of the commission refusing to permit an appeal from a regional board of review. Such filings shall be the only act required to perfect the appeal and vest jurisdiction in the court."
Thus, since the commission's order on reconsideration was dated July 19, 1979, and mailed August 29, 1979, well after the January 1, 1979 effective date of amended R.C. 4123.519, appellee had a plain and adequate remedy at law by which to challenge the commission's order — an appeal to a court of common pleas.
R.C. 4121.01(G) provides:
"`Order' means any decision, rule, regulation, direction, requirement, or standard, or any other determination or decision which the industrial commission or the department of industrial relations is empowered to and does make."
As this court stated in State, ex rel. Pressley, v. Indus. Comm., supra, paragraph three of the syllabus: "When a petition stating a proper cause of action in mandamus is filed originally in the Supreme Court or in the Court of Appeals, and it is determined that the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal, neither the Supreme Court nor the Court of Appeals has authority to exercise jurisdictional discretion but those courts are required to deny the writ."
For all the foregoing reasons, therefore, appellee has failed to demonstrate that it was without a plain and adequate remedy at law, a jurisdictional prerequisite for the issuance of a writ of mandamus. Since the Court of Appeals erred in issuing the writ in this cause, we hereby reverse the judgment of the Court of Appeals.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.