Opinion
No. 87-992
Submitted August 19, 1988 —
Decided October 26, 1988.
Workers' compensation — Commission may sua sponte exercise its review power — R.C. 4123.52 — Lump sum advancement is not accrued compensation — R.C. 4123.60.
O.Jur 2d Workmen's Compensation §§ 158, 170.
1. The Industrial Commission has discretion under R.C. 4123.52 to modify a prior order and is required under R.C. 4121.36(A)(1) to give notice to interested parties.
2. The Industrial Commission has the right under R.C. 4123.52 to exercise its discretionary review power sua sponte.
O.Jur 2d Workmen's Compensation § 255.
3. A lump sum advancement does not constitute accrued compensation under R.C. 4123.60.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-137.
This mandamus action was initiated by Marie Manns, widow of decedent, Benjamin J. Manns, seeking to compel the Industrial Commission of Ohio ("commission") to honor a check for $3,504.39 issued to her husband on March 21, 1981.
Decedent, Benjamin J. Manns, was injured on January 4, 1972, during the course of and arising out of his employment with the city of Toledo. He was awarded permanent and total disability benefits by the commission.
On February 2, 1981, decedent filed an application with the commission for a lump sum payment of his benefits. The application was granted and a check for $3,504.39 was issued in the name of decedent on March 21, 1981. A caveat, "Void If Not Cashed Within 180 Days," was inscribed on the face of the check. Concomitant with the issuance of the check, decedent's weekly permanent disability benefit was reduced by $8.27.
Decedent died on January 15, 1985, of causes unrelated to his injury. He died without cashing the $3,504.39 check and another check for $289.04 was issued by the commission on January 14, 1985. By letter dated January 21, 1985, decedent's attorney returned the two checks to the commission for reissuance. In response, the commission issued an order on February 13, 1985, stating in pertinent part, "[t]hat the lump sum payment order dated 3-3-81 be vacated due to the claimant's death * * * [and that] [t]he present rate of $59.60 shall be increased in the amount of $8.27 and the new weekly rate will be $67.87."
On March 27, 1985, decedent's widow, appellee herein, filed an application of surviving spouse and minor children and an application for payment of compensation accrued at time of death. A hearing on these applications was held on April 30, 1985, following which the district hearing officer issued an order stating that appellee "is not entitled to receive the value of the lump sum advancement and that such amount does not represent an accrued amount in that the previous award of that payment has specifically been vacated" by the commission's order of February 13, 1985.
Appellee appealed the district hearing officer's order to the regional board of review ("board"). The board issued its opinion on July 10, 1985, ordering that appellee be paid the lump sum amount of $3,504.39.
On November 19, 1985, the commission on its own motion, pursuant to notice to all parties, declared the board's order void and reinstated its order of February 13, 1985. Appellee filed a complaint for a writ of mandamus in the Court of Appeals for Franklin County, seeking to compel the commission to pay the disputed amount. The court of appeals, adopting its referee's report on this matter, held that appellee is entitled to the reissuance of the check for $3,504.39 and such portion of the check for $289.04 as the commission determines was rightfully due decedent prior to his death.
The cause is now before this court upon an appeal as of right.
Marvin K. Jacobs Co., L.P.A., and Marvin K. Jacobs, for appellee.
Anthony J. Celebrezze, Jr., attorney general, Helen M. Ninos and Jeffery W. Clark, for appellant.
Appellee first asserts that the commission abused its discretionary powers in vacating the March 3, 1981 order without giving notice to appellee. We hold that it did not.
R.C. 4123.52 provides in pertinent part that the Industrial Commission has continuing jurisdiction over each case and has the discretion to "make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified." By virtue of the continuing jurisdiction conferred by R.C. 4123.52, the Industrial Commission may revoke an award heretofore made whenever in its opinion such revocation is justified. Pisanello v. Polinori (1938), 60 Ohio App. 422, 13 O.O. 401, 22 N.E.2d 92. This court held in State, ex rel. Griffey, v. Indus. Comm. (1932), 125 Ohio St. 27, 180 N.E. 376, paragraph one of the syllabus, that the continuing jurisdiction of the Industrial Commission applies only to new and changed conditions occurring after the original award. Decedent's death is a material change in condition since the March 3, 1981 order. Thus, the commission has jurisdiction to review the order.
R.C. 4123.52 does not contain any language requiring the commission to hold a formal hearing in reviewing a prior order. Assuming arguendo that a hearing is required before modification of a prior order, appellee is nonetheless not entitled to notice.
R.C. 4121.36(A)(1) mandates that notice be given to all parties and their representatives in all commission hearings. Interested parties in commission proceedings include claimants, employers and administrators. See State, ex rel. Eltra Corp., v. Indus. Comm. (1973), 36 Ohio St.2d 96, 65 O.O. 2d 245, 304 N.E.2d 239. Appellee did not become a claimant by virtue of her husband's death. Decedent's rights to compensation exist separate and apart from those of appellee. The right of an injured employee to recover exists separate and apart from that of a dependent. Indus. Comm. v. Davis (1933), 126 Ohio St. 593, 186 N.E. 505. A surviving spouse wishing to participate in the State Insurance Fund must initiate a separate claim. Ratliff v. Flowers (1970), 25 Ohio App.2d 113, 54 O.O. 2d 213, 266 N.E.2d 848. Appellee did not become a party in interest until March 27, 1985, when she applied for accrued compensation and death benefits, and thus was not entitled to a notice of vacation of the March 3, 1981 order.
For the foregoing reasons, we hold that the commission has discretion under R.C. 4123.52 to modify a prior order and is required under R.C. 4121.36(A)(1) to give notice to interested parties.
We now consider whether the Industrial Commission's sua sponte review and vacation of the board of review's order of July 10, 1985, amounts to abuse of discretion. We hold that it does not.
As noted earlier, R.C. 4123.52 confers continuing jurisdiction on the commission to make modifications to former findings or orders as it deems justified. An error by an inferior tribunal is a sufficient reason for the commission to invoke its continuing jurisdiction. See State, ex rel. Highway Co., v. Indus. Comm. (1980), 70 Ohio App.2d 41, 24 O.O. 3d 37, 434 N.E.2d 279. The board's order of July 10, 1985, had the effect of reversing the commission's order of February 13, 1985. The board as an inferior administrative tribunal may not reverse an order of the commission. Furthermore, the board's order exceeded its statutory powers. The authority to issue lump sum payments vests exclusively with the commission. R.C. 4123.64. Thus, it is clear that the commission has discretion to review the board's order.
The commission has the right under R.C. 4123.52 to exercise its discretionary review power sua sponte. It has inherent power to reconsider an order for a reasonable time after it is issued, unless restricted by statute or administrative regulations, regardless of whether an appeal from the order is provided by statute. State, ex rel. Gatlin, v. Yellow Freight System, Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480 N.E.2d 487, syllabus. To hold otherwise would severely limit the commission's power to review prior orders.
Accordingly, we hold that the commission's sua sponte review of the board of review's order of July 10, 1985, does not amount to abuse of discretion.
Finally, we must decide whether a lump sum advancement constitutes accrued compensation for purposes of R.C. 4123.60. We hold that it does not.
R.C. 4123.60 provides in pertinent part that "[i]n all cases of death from causes other than the injury or occupational disease for which award had theretofore been made on account of temporary, or permanent partial, or total disability, in which there remains an unpaid balance, representing payments accrued and due to the decedent at the time of his death, the commission may * * * award or pay any unpaid balance of such award to such of the dependents of the decedent * * *." (Emphasis added.) There is no provision in R.C. 4123.60 permitting the issuance or reissuance of lump sum payments to dependents of a decedent.
The focus of consideration for accrued benefits is retrospective, while the focus for lump sum advancements is prospective. A claimant receiving a lump sum advancement is in effect "taking a loan" against future awards. Such a claimant receives presently the equivalent of what he or she would have received over a future time span. Thus, the lump sum advancement to decedent does not constitute accrued compensation.
As noted previously, appellee did not, by virtue of being a surviving spouse, step into decedent's shoes. Her right to compensation is distinct from decedent's. Indus. Comm. v. Davis, supra. The right to the lump sum advancement is personal to the decedent. The advancement was based on his life expectancy and the reduction in his weekly benefits. It was not based on any accrued benefits.
Accordingly, we hold that appellee is not entitled to the lump sum advancement. Appellee is only entitled to the portion of the payments that accrued to decedent prior to his death.
The judgment of the court of appeals is reversed in part and affirmed in part.
Judgment reversed in part and affirmed in part.
SWEENEY, LOCHER, HOLMES, WRIGHT and H. BROWN, JJ., concur.
DOUGLAS, J., dissents.