State ex rel. Hoover Co. v. Mihm6/25/1996
Per Curiam.
Two issues are presented for our review. First, is the promulgation of Ohio Adm.Code 4123-17-32(D) invalid due to BWC's failure to comply with R.C. Chapter 119? Second, does BWC owe a duty, by virtue of the asserted improper promulgation of Ohio Adm.Code 4123-17-32(D), either to grant retroactive effect to Hoover's notice of withdrawal or to calculate Hoover's assessment for the first half of 1990 under the pre-1990 standard? For the reasons that follow, we hold that Hoover has no right to BWC's performance of the requested acts, regardless of whether Ohio Adm.Code 4123-17-32(D) was promulgated properly. Accordingly, we affirm the court of appeals' judgment denying the writ of mandamus and do not pass upon the alleged invalidity of Ohio Adm.Code 4123-17-32(D).
In 1989 and before, Hoover participated in the handicap reimbursement program established under R.C. 4123.343. This statute, enacted in 1955 to encourage employment of disabled workers, charges employee injury claims attributable to a pre-existing handicap to the surplus portion of the state insurance fund. Fulton, Ohio Workers' Compensation Law (1991) 312, Section 14.15; Young, Workman's Compensation Law of Ohio (2 Ed.1971) 288, Section 17.5. The surplus fund either pays such claims directly or reimburses self-insured employers for paid handicap claim expenses. Fulton, supra.
Since the 1986 enactment of R.C. 4123.343(G), 141 Ohio Laws, Part I, 745, self-insured employers have been allowed to withdraw from or "opt out" of the handicap reimbursement program. In June 1990, Hoover gave notice of its withdrawal mainly to avoid the consequences of R.C. 4123.35(l), effective November 3, 1989. 143 Ohio Laws, Part 11, 3197, 3328. Beginning on July 1, 1990, R.C. 4123.35(l) authorized a new basis for calculating the assessment of participating self-insured employers to compensate the surplus fund and to finance the program. Previously, all self-insurers contributed to the surplus fund by paying a percentage of the payroll-based premium they would have paid as a state fund employer, and self-insurers participating in the handicap reimbursement program paid an additional percentage of that premium. Young, supra, at 237, Sectios13.6; Fulton, supra, at 310-311, Section 14.13; Ohio Adm.Code 4123-17-30(B). The new handicap reimbursement assessment was to be calculated based on the it paid compensation" expended by each self-insurer in the preceding year. Apparently, it was also to be calculated separately and only in relation to other self-insurers, such that handicap claim costs were no longer spread over all employers according to their classification of hazard. See Fulton, supra, at 311, Section 14.13. This change, together with the 12.4 percent rate Ohio Adm.Code 4123-17-32(D) applied to the self-insurer's paid compensation, allegedly increased Hoover's assessment by six hundred percent.
Hoover claims that it would have opted out of the handicap reimbursement program timely, that is, before December 31, 1989, with better notice of the new assessment rate in Ohio Adm.Code 4123-17-32(D). Hoover's speculation as to this possibility, however, is insufficient to justify retroactive relief from the assessment. Moreover, Hoover's cited authority--Condee v. Lindley (1984), 12 Ohio St.3d 90, 12 OBR 79, 465 N.E.2d 45--does not establish a right to this or other affirmative relief upon the invalidation or rescission of a regulation pursuant to R.C. 119.02. In Condee, we invalidated a Tax Commissioner's policy for apportioning the tax value of public utility property because the policy had not been formally promulgated in accordance with R.C. Chapter 119. We did not go further and attempt to
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