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State ex rel Athey v. Industrial Commission Of Ohio8/30/2000
Workers' compensation - Former R.C. 4123.57 required claimants to elect between division (A) compensation, impaired earning capacity compensation, and division (B) compensation, permanent partial disability compensation - Court of appeals' judgment denying writ of mandamus to vacate Industrial Commission's order denying a change of election affirmed.
Submitted July 25, 2000
Appellant, Willa J. Athey, seeks a writ of mandamus to vacate appellee Industrial Commission of Ohio's order denying her request for impaired earning capacity ("IEC") compensation, available under former R.C. 4123.57(A), and to issue an order granting this relief. The Court of Appeals for Franklin County denied the writ, finding that the commission's order was not an abuse of discretion.
In 1993, Athey applied for permanent partial disability ("PPD") compensation after injuring her knee while working for appellee Elias Brothers Restaurant, d.b.a. Elby's Family Restaurant, Inc. ("Elby's"). In an order dated August 31, 1995, the commission assessed Athey's PPD at seventeen percent and awarded her thirty-four weeks of compensation. Elby's, a self-insurer under the workers' compensation system, did not appeal.
On September 26, 1995, a paralegal employed by Athey's counsel wrote to the administrator of Elby's workers' compensation program asking for Athey's PPD compensation. The letter read, in part:
"Attached, please find copy of District Hearing Officer's order of August 31, 1995, awarding 17% permanent partial disability to be paid through this office. Therefore, it would be appreciated if the award could be calculated at an early date, and mailed to this office for review and delivery to Ms. Athey."
The paralegal enclosed with this letter the completed Bureau of Workers' Compensation form authorizing Athey's attorney to receive her workers' compensation check. The form provided a list of the various types of compensation and required Athey or her counsel to identify the award for which they expected payment. As between "Temporary Partial; impairment of earning capacity" and "% Permanent Partial," Athey authorized her counsel to receive her check for "% Permanent Partial."
Elby's drafted a check dated September 28, 1995 and made payable to Athey for $3,377.22. The check was cashed, and on October 16, 1995, Athey paid her counsel $1,576.63 in attorney fees. A photocopy of Elby's check to Athey includes handwritten notations, signed by someone whose name started with "K," concerning the amount of fees owed to her former attorneys.
About eight months later, on June 13, 1996, Athey's counsel filed a completed IC-90 form with the commission that purported to provide notice of and exercise her formal election to receive partial disability compensation. On this form, Athey advised that she did not want to be paid a PPD award, but instead wanted to be paid IEC compensation. Athey alleges that before filing with the commission, she had tried to exercise her election with Elby's on April 9, 1996 and that she had received no response to her notification letter and IC-90 form. Elby's denies ever receiving this or any notice of election from Athey other than the September 26, 1995 paralegal letter.
A commission district hearing officer ("DHO") initially found that Athey's IC-90 form constituted the original election authorized by former R.C. 4123.57 and that she was entitled to IEC compensation. On Elby's appeal, a staff hearing officer ("SHO") vacated the DHO's order, finding that Athey had constructively elected to be paid PPD compensation by requesting this payment with the September 26, 1995 letter and having already received and cashe
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