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State ex rel Sysco Food Services of Cleveland9/13/2000
Workers' compensation - Application for temporary total disability compensation allowed - Claim ultimately disallowed in its entirety by common pleas court - Self-insured employer seeks writ of mandamus to compel reimbursement from state Surplus Fund - Writ granted, when.
Submitted April 25, 2000
In Mandamus.
Relator, Sysco Food Services of Cleveland, Inc., is a self-insured employer. In 1995, a Sysco employee, Donnie G. Goodall, alleged injury to his lower back arising from and in the course of his employment. Sysco contested the claim, and the matter was heard by a district hearing officer of respondent Industrial Commission of Ohio.
The commission ultimately allowed the claim and ordered Sysco to pay temporary total disability compensation ("TTC"). Sysco appealed the claim, and continued to pay TTC and medical benefits during the course of these proceedings. The claim was ultimately disallowed in its entirety by the Cuyahoga County Court of Common Pleas. The Cuyahoga County Court of Appeals affirmed, and no further appeal was taken.
Sysco moved the commission for reimbursement from the state Surplus Fund of the $32,748.59 in compensation and benefits that it had been required to pay in the Goodall claim. The commission denied Sysco's request, ruling that Sysco's recovery rights were instead governed by R.C. 4123.511(J), which mandates reimbursement via offset from any future claims made by the claimant.
This cause is now before this court as an original action in mandamus.
For obvious reasons, payment of compensation to a claimant has never been stayed indefinitely by an employer's appeal of the award. See R.C. 4123.511(H) and former R.C. 4123.515 and 4123.519. Consequently, employers often pay compensation pursuant to orders that are later overturned. An employer's right to recover this money is unquestioned. 1993, however, saw changes that the commission has applied to radically alter recoupment procedure. That procedure is now at issue.
Former R.C. 4123.515 and 4123.519 previously established the means of recovery. Former R.C. 4123.515 read:
"Payment of an award made pursuant to a decision of the district hearing officer in a claim shall commence twenty days after the date of the decision * * *. In all other cases, if the decision of the district hearing officer is appealed by the employer or the administrator, the bureau of workers' compensation shall withhold compensation and benefits during the course of the appeal to the regional board of review, but where the regional board rules in favor of the claimant, compensation and benefits shall be paid by the bureau or by the self-insuring employer whether or not further appeal is taken. If the claim is subsequently denied, in whole or in part, payments shall be charged to the surplus fund created under division (B) of section 4123.34 of the Revised Code, and if the employer is a state risk such amount shall not be charged to the employer's experience and if the employer is a self-insurer such amount shall be paid to the self-insurer from the surplus fund." (Emphasis added.) 143 Ohio Laws, Part II, 3353.
Former R.C. 4123.519(G) similarly provided:
"An appeal from a decision of the commission or any action filed in a case in which an award of compensation has been made shall not stay the payment of compensation * * * during the pendency of the appeal. In the event payments are made to a claimant which should not have been made under the decision of the appellate court, the amount thereof shall be charged to the surplus fund under division (B) of section 4123.34 of the Revised Code. In the event the employer is a
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