State ex rel Sysco Food Services of Cleveland9/13/2000
manner." Burgess v. Eli Lilly & Co. (1993), 66 Ohio St.3d 59, 62, 609 N.E.2d 140, 142. We have previously held that " here there has been an ultimate finding that an employer has been improperly required to pay all (or any part) of a sum in compensation, then that employer is entitled to reimbursement * * *." See State ex rel. Eaton Corp. v. Lancaster (1988), 40 Ohio St.3d 404, 416-417, 534 N.E.2d 46, 58, Douglas and A. William Sweeney, JJ., concurring, adopted in State ex rel. Eaton Corp. v. Lancaster (1989), 44 Ohio St.3d 106, 541 N.E.2d 64, and State ex rel. Peabody Coal Co. v. Indus. Comm. (1989), 44 Ohio St.3d 104, 541 N.E.2d 74. The current scheme eliminates reimbursement for employers in Sysco's situation. Certainly, a remedy that may or may not occur, may or may not make full restitution, or may take years to fulfill cannot be considered meaningful. As we stated in Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 60, 514 N.E.2d 709, 716:
"Denial of a remedy and denial of a meaningful remedy lead to the same result: an injured plaintiff without legal recourse. This result cannot be countenanced." (Emphasis sic.)
In further asserting a post-H.B. 107 right to Surplus Fund reimbursement, relator relies on this language from R.C. 4123.512(H):
"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 * * *." 145 Ohio Laws, Part II, 3155.
Stressing the presence of identical language in former R.C. 4123.519, relator cites Youghiogheny & Ohio Coal Co. v. Mayfield (1984), 11 Ohio St.3d 70, 11 OBR 315, 464 N.E.2d 133, as further proof that R.C. 4123.512(H) preserves Surplus Fund reimbursement. There, we held:
"R.C. 4123.519 [now renumbered R.C. 4123.512] provides that if an award of compensation is proved to be incorrect upon appeal, then the benefits improperly disbursed to a claimant will be charged against the state surplus fund as provided for in R.C. 4123.34(B). Thus, the employer recovers any amount of improperly paid benefits from the fund * * *." Id. at 72, 11 OBR at 316, 464 N.E.2d at 135. Reinforcing its position, relator stresses that under former R.C. 4123.35(K), now renumbered R.C. 4123.35(L), a self-insured employer " n reporting paid compensation paid for the previous year, * * * shall exclude from the total amount of paid compensation any reimbursement the employer receives in the previous calendar year from the surplus fund pursuant to section 4123.512 of the Revised Code for any paid compensation." (Emphasis added.) The emphasized language indicates that some sort of monetary Surplus Fund repayment is anticipated by R.C. 4123.512, and the only place that the statute speaks to Surplus Fund reimbursement is with regard to subsequently vacated compensation awards.
Finally, relator points out that Ohio Adm.Code 4121-3-18(A)(17) still directs that:
"If the claim is subsequently denied, payments shall be charged to the statutory surplus fund. * * * If the employer is a self-insurer such amount will be paid to the self-insurer from the surplus fund."
Taken together, relator claims that the current statutory scheme preserves Surplus Fund reimbursement and must be interpreted in this manner in order to preserve the constitutionality of R.C. 4123.511(J). Finding that relator has persuasively asserted the right and ability to recover from the state Surplus Fund, we hereby issue the requested writ of mandamus and order Surplus Fund reimbursement. Writ granted.
Moyer, C.J., Douglas, Resnick, F.E. Swe
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