State ex rel. St. Marys Foundry Co. v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[The State ex rel.] St. Marys Foundry Company, Appellant, v. Industrial
Commission of Ohio et al., Appellees.
[Cite as State ex rel. St. Marys Foundry Co. v. Indus. Comm. (1997), _____ Ohio
St.3d ____.]
Workers' compensation -- VSSR assessments are sufficiently explained
when the Industrial Commission grants an express award amount
within the range specified in Section 35, Article II of the Ohio
Constitution.

(No. 95-397 -- Submitted March 18, 1997 -- Decided June 4, 1997.)

APPEAL from the Court of Appeals for Franklin County, No. 93APD11-
1515.

Donald Cotterman was killed in an industrial accident while working for
appellant, St. Marys Foundry Company, during 1980. Appellee Industrial
Commission of Ohio recognized the death claim of appellee Marie Cotterman,
Donald's widow, but denied her the additional compensation paid when a
worker's death results from an employer's violation of a specific safety
requirement ("VSSR"). State ex rel. Cotterman v. St. Marys Foundry (1989), 46
Ohio St.3d 42, 544 N.E.2d 887, found that appellant had committed a VSSR and
that the commission had abused its discretion in denying Marie's VSSR

application. Cotterman thus granted a writ of mandamus that effectively ordered
the commission to determine the amount of the VSSR award.

Pursuant to this order and the authority conferred by Section 35, Article II,
Ohio Constitution, the commission subsequently set Marie's VSSR compensation
at "30 per cent of the maximum weekly rate." The commission's order did not
explain the reasons for imposing this percentage.

Upon the commission's denial of its request for rehearing, appellant
petitioned for a writ of mandamus in the Franklin County Court of Appeals,
arguing that the commission had abused its discretion in assessing Marie's VSSR
award at thirty percent and without stating the reasons for its decision. Appellant
asked that the commission be compelled to vacate the award and to adequately
explain the assessed amount in a second order. A referee recommended denial of
the writ on the basis of State ex rel. Jeep Corp. v. Indus. Comm. (1989), 42 Ohio
St.3d 83, 537 N.E.2d 215, in which a writ of mandamus requested for the same
purpose had been refused. Observing that it was bound to follow Jeep, the court
of appeals overruled appellant's objections, adopted the referee's report and
denied the writ.

The cause is now before this court upon an appeal as of right.
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__________

Dunlevey, Mahan & Furry, William H. Barney III, Gary W. Auman and
William P. Allen, for appellant.

Betty D. Montgomery, Attorney General, and Gerald H. Waterman,
Assistant Attorney General, for appellee Industrial Commission.

Arter & Hadden, Michael L. Maxfield and Douglas M. Bricker, for appellee
Marie Cotterman.
__________

Per Curiam. Appellant insists that the commission has a duty to specify in
its orders its reasons for assessing VSSR awards at one percentage rate or another.
The court of appeals disagreed, citing as dispositive this passage from State ex rel.
Jeep Corp. v. Indus. Comm. (1989), 42 Ohio St.3d 83, 85-86, 537 N.E.2d 215,
218:

"Upon determining that a specific safety requirement has been violated, the
commission must next award to the claimant an amount between fifteen and fifty
percent, inclusive, of the `maximum award established by law.' Section 35,
Article II, Ohio Constitution; State, ex rel. Engle, v. Indus. Comm. (1944), 142
Ohio St. 425, 27 O.O. 370, 52 N.E.2d 743. The present claimant, in challenging
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the amount of the award, alleges that the commission did not explain how it
determined the amount of the award, nor did it identify the evidence relied on in
making the determination. More specifically, claimant contends that the
commission did not indicate what factors it considered in concluding that his
severed arm only warranted the minimum award. He contends that it is impossible
to tell whether such seemingly relevant factors as, for example, injury severity,
egregiousness of violation, or a machine's inherent dangerousness, were
considered by the hearing officer. Interpretation of matters pertaining to specific
safety requirements is within the commission's sound discretion. [State ex rel.
Allied Wheel Products, Inc. v. Indus. Comm. (1956), 166 Ohio St. 47, 1 O.O.2d
190, 139 N.E.2d 41.] There is a presumption that in areas over which the
commission has jurisdiction, its orders are `in all respects valid and in the exercise
of good faith and sound judgment.' State, ex rel. Gerspacher v. Coffinberry
(1952), 157 Ohio St. 32, 47 O.O. 31, 104 N.E.2d 1, paragraph two of the syllabus.
We find no evidence that the commission did not consider all relevant factors.
"Moreover,
[State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio
St.3d 481, 6 OBR 531, 453 N.E.2d 721], upon which claimant heavily relies,
requires commission orders to `specifically state which evidence and only that
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evidence which has been relied upon to reach * * * [the commission's] conclusion,
and a brief explanation stating why the claimant is or is not entitled to the benefits
requested.' (Emphasis added.) Id. at 483-484, 6 OBR at 534, 453 N.E.2d at 724.
It does not require the commission to explain how the amount of the award was
decided. In the case at bar, the commission did set forth the reasons for granting
claimant's VSSR application and the evidence relied on. Mitchell requires no
more." Accord State ex rel. Smith v. Huguelet (1991), 57 Ohio St.3d 1, 2, 564
N.E.2d 698, 699.

Appellant attempts to resuscitate in this appeal the argument that judicial
review is impossible where the commission does not explain how it determined
the amount of a VSSR award. Appellant contends that the commission must
consider and explain the impact of certain factors, particularly the severity of the
injury, the egregiousness of the violation, and the inherent dangerousness of
involved machinery, just as the commission must consider and explain certain
nonmedical factors in permanent total disability claims under State ex rel.
Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d
946. However, contrary to appellant's representation, we did not accept this
argument in State ex rel. Smith v. Huguelet, supra. Nor did we require
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consideration or explanation of these factors in Jeep. In fact, in both of these
cases, we explicitly held that the commission need not explain how it calculated
the amount of the VSSR award. Jeep, 42 Ohio St.3d at 85-86, 537 N.E.2d at 218;
Huguelet, 57 Ohio St.3d at 2, 564 N.E.2d at 699.

Moreover, appellant's reliance on R.C. 4121.47(B) is misplaced. Appellant
contends that R.C. 4121.47(B) requires consideration of "the size of the employer
as measured by the number of employees, assets, and earnings of the employer."
But this statute requires consideration of these factors only when the commission
is assessing a civil penalty for a second VSSR within twenty-four months.

Appellant also complains that Jeep is inconsistent with the commission's
duty as discussed in State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm. (1994),
71 Ohio St.3d 139, 142, 642 N.E.2d 378, 380:

"Contrary to the commission's representation, neither Mitchell nor [State ex
rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245] confines the
need for adequate evidentiary explanation and identification to questions of pure
award or denial of compensation. All matters affecting the rights and obligations
of the claimant or employer merit an explanation sufficient to inform the parties
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and potentially a reviewing court of the basis for the commission's decision."
(Emphasis sic.)

Appellant's complaint is valid to some extent. Jeep interpreted Mitchell as
requiring "no more" than an explanation concerning benefits and, thus, did not
require that the commission justify the amount of any award, particularly a VSSR
award. Jeep, 42 Ohio St.3d at 86, 537 N.E.2d at 218. But Yellow Freight used
Mitchell to expand the adequate-explanation requirement, holding that the
commission must state its reasons for a decision apportioning the cost of a
claimant's compensation award between two or more employers. Even so, this
inconsistency does not compel us now to extend the Mitchell adequate-explanation
requirement further still.

Jeep relied on Allied Wheel Products to emphasize the commission's broad
discretion in determining VSSR awards. Jeep, 42 Ohio St.3d at 85, 537 N.E.2d at
218. In Allied Wheel Products, we said that we would not disturb the amount of a
VSSR award as long it was within the fifteen-to-fifty-percent range set forth in
Section 35, Article II of the Ohio Constitution. 166 Ohio St. at 50, 1 O.O.2d at
192, 139 N.E.2d at 44. Our statement suggests that the commission's discretion in
assessing VSSR amounts is limited only by this constitutional standard and that
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the commission commits an abuse of discretion, correctable in mandamus, only by
assessing an award outside this range.

Appellant has failed to persuade us that the commission's discretion in
apportioning compensation costs is as comprehensive as it is in determining the
amount of VSSR awards. We decline to overrule Jeep as contrary to Yellow
Freight, and hold that VSSR assessments are sufficiently explained when the
commission grants an express award amount within the range specified in Section
35, Article II of the Ohio Constitution.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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