State ex rel Sysco Food Services of Cleveland9/13/2000
state risk, the amount shall not be charged to the employer's experience. In the event the employer is a self-insurer, the amount shall be paid to the self-insurer from the surplus fund." (Emphasis added.) 143 Ohio Laws, Part II, 3355.
These statutes provided dollar-for-dollar reimbursement via direct payment from the Surplus Fund to the self-insured employer.
Effective October 20, 1993, Am.Sub.H.B. No. 107 repealed R.C. 4123.515 and 4123.519, and substituted R.C. 4123.511(J) and 4123.512(H). R.C. 4123.511(J), as it read for periods relevant herein, directed:
"Upon the final administrative or judicial determination, if a claimant is found to have received compensation to which he was not entitled, his employer, if he is a self-insuring employer, or the bureau, shall withhold from any amount to which the claimant becomes entitled pursuant to any claim, past, present, or future, under Chapter 4121., 4123., 4127., or 4131. of the Revised Code, the amount to which the claimant was not entitled * * *." 145 Ohio Laws, Part II, 3152.
The statute provided a graduated withholding schedule that allowed the claimant to retain some amount of weekly benefit during the repayment process.
R.C. 4123.512(H) complemented R.C. 4123.511(J). It stated:
"An appeal from an order issued under division (E) of section 4123.511 of the Revised Code or any action filed in court in a case in which an award of compensation has been made shall not stay the payment of compensation under the award * * * during the pendency of the appeal. If, in a final administrative or judicial action, it is determined that payments of compensation or benefits, or both, made to or on behalf of a claimant should not have been made, 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 state risk, the amount shall not be charged to the employer's experience. In the event the employer is a self-insuring employer, the self-insuring employer shall deduct the amount from the paid compensation he reports to the administrator under division (K) of section 4123.35 of the Revised Code." (Emphasis added.) 145 Ohio Laws, Part II, 3157.
As applied by the commission, the new scheme has the advantage of eliminating or reducing the amount of what previously would have been a claimant windfall, since claimants rarely had to repay overpaid funds. Unfortunately, R.C. 4123.511(J) offers little relief to the self-insured employer, for it is, at best, speculative. No self-insured employer is ever guaranteed full reimbursement. The entire scheme hinges on the employee's seeking additional compensation, which may never occur. Even where additional compensation is sought, the graduated withholding schedule greatly reduces the chance that the employer will recover the full amount, especially when dealing with the large amounts involved here. Most problematic is the employer in Sysco's shoes. If the entire workers' compensation claim is disallowed, there is almost no chance of any recoupment unless claimant has other active claims with the same employer.
Relator argues that R.C. 4123.511(J), as applied to self-insureds, denies, among other things, the right to a remedy guaranteed by Section 16, Article I of the Ohio Constitution. As such, it asserts that R.C. 4123.512(H) must be read as preserving the right to Surplus Fund reimbursement, in order to maintain the recovery scheme's constitutionality. We agree.
The right to a remedy guaranteed by Section 16, Article I of the Ohio Constitution "requires an opportunity [for remedial action] granted at a meaningful time and in a meaningful
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