 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
State ex rel Athey v. Industrial Commission Of Ohio8/30/2000
d Elby's check. The SHO went on to construe Athey's IC-90 form as a change of election under former R.C. 4123.57 and to find that Athey was unable to prove the requisite unforeseen change of circumstances justifying a change of election. Consequently, the SHO denied Athey's request for IEC compensation.
Upon the commission's refusal of her appeal, Athey filed this action in the court of appeals. The cause is now before this court upon an appeal as of right.
The court of appeals held that the commission did not abuse its discretion in finding that Athey had constructively elected against receiving IEC compensation. We agree.
Former R.C. 4123.57(A) authorized the payment of IEC compensation, while former division (B) of the statute authorized the payment of PPD compensation. R.C. 4123.57 also required claimants to elect between division (A) compensation and division (B) compensation. Athey argues that she did not make this election until April 9, 1996 when she sent a letter and IC-90 notice of partial disability election form to Elby's. Elby's and the commission argue that Athey gave notice of her election with her September 26, 1995 letter, that Elby's complied with her request by forwarding a check in the appropriate amount to her counsel, and that Athey confirmed her election by cashing the check. As a result, Elby's and the commission insist that the commission properly considered Athey's subsequent IC-90 form as a request to change her initial election.
To resolve this dispute we must again note that the commission is the exclusive evaluator of weight and credibility and that as long as some evidence supports the commission's decision, we will defer to its judgment. State ex rel. LTV Steel Co. v. Indus. Comm. (2000), 88 Ohio St.3d 284, 287, 725 N.E.2d 639, 642. Here, the commission might have inferred from Athey's evidence that Elby's surreptitiously locked her into an election by sending her a PPD compensation check without regard to the September 26, 1995 letter and notwithstanding her counsel's April 9, 1996 letter. But it did not. The commission instead credited evidence suggesting that Elby's simply acted in compliance with what reasonably appeared to be Athey's September 26, 1995 request for PPD compensation. In particular, while Athey insists that Elby's did not rely on the September 26 letter and sent the check directly to her rather than to her counsel, the attorney fee notations on the photocopy of the check represent some evidence for the commission's conclusion that her counsel received the check first and then sent it on to Athey. The commission's decision, therefore, is not an abuse of discretion.
Athey also insists that former R.C. 4123.57(A) mandates, in effect, the filing of an IC-90 form to effect the partial disability election. We are not persuaded. As the court of appeals found:
" otices and requests communicated by letter are accepted routinely by the commission in lieu of printed forms. Further, although Ohio Adm.Code 4121-3-02(C) states that printed forms `should' be used to facilitate prompt adjudications, the rule does not mandate their use exclusively. * * *
"Moreover, it is important to recognize that the commission did not rely solely on [the September 26, 1995] letter. It also relied on the subsequent behavior of claimant, which was consistent with the request in the letter. Claimant accepted the percentage award and paid her attorneys their fee. Her attorneys, aware of the order awarding PPD, accepted their share and did not promptly file a notice of election of IEC compensation."
Neither we nor the court of appeals can substitute our judgment for the commission's in evaluating e
Page 1 2 3 Ohio Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|