THE STATE EX REL. ATHEY, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
No. 99-134
SUPREME COURT OF OHIO
Decided August 30, 2000.
89 Ohio St.3d 473 | 2000-Ohio-489
Submittеd July 25, 2000. APPEAL from the Court of Appeals for Franklin County, No. 97ADP12-1706.
{¶ 1} Appellant, Willa J. Athey, seeks a writ of mandamus to vacate appellee Industrial Commission of Ohio‘s order denying her request for impaired earning capacity (“IEC“) compensation, available under
{¶ 2} In 1993, Athey applied for permanent partial disability (“PPD“) compensation after injuring her knee while working for appellee Elias Brothers Restaurant, d.b.a. Elby‘s Family Restaurant, Inc. (“Elby‘s“). In an order dated August 31, 1995, the commission assessed Athey‘s PPD at seventeen percent and awarded her thirty-four weeks of compensation. Elby‘s, a self-insurer under the workers’ compensation system, did not appeal.
“Attached, please find copy of District Hearing Officer‘s order of August 31, 1995, awarding 17% permanent partial disability to be paid through this office. Therefore, it would be appreciated if the award could be calculatеd at an early date, and mailed to this office for review and delivery to Ms. Athey.”
{¶ 4} The paralegal enclosed with this letter the completed Bureau of Workers’ Comрensation form authorizing Athey‘s attorney to receive her workers’ compensation check. The form provided a list of the various types of compensation and required Athey or her counsel to identify the award for which they expected payment. As between “Temporary Partial; impairment of earning capacity” аnd “% Permanent Partial,” Athey authorized her counsel to receive her check for “% Permanent Partial.”
{¶ 5} Elby‘s drafted a check dated September 28, 1995 and made payable to Athey for $3,377.22. The check was cashed, and on October 16, 1995, Athey paid her counsel $1,576.63 in attorney fees. A photocopy of Elby‘s check to Athey includes handwritten nоtations, signed by someone whose name started with “K,” concerning the amount of fees owed to her former attorneys.
{¶ 6} About eight months later, on June 13, 1996, Athey‘s counsel filed a сompleted IC-90 form with the commission that purported to provide notice of and exercise her formal election to receive partial disability comрensation. On this form, Athey advised that she did not want to be paid a PPD award, but instead wanted to be paid IEC compensation. Athey alleges that before filing with the commission, she had tried to exercise her election with Elby‘s on April 9, 1996 and that she had received no response to her notification letter and IC-90 form. Elby‘s denies ever receiving this or any notice of election from Athey other than the September 26, 1995 paralegal letter.
{¶ 8} Upon the commission‘s refusal of her appeal, Athey filed this action in the court of aрpeals. The cause is now before this court upon an appeal as of right.
Law Office of Thomas Tootle and Thomas Tootle, for appellant.
Betty D. Montgomery, Attorney General, and Jon D. Grandon, Assistant Attorney General, for appellee Industrial Commission of Ohio.
Chester, Willcox & Saxbe, Frank A. Titus and John J. Chester, Jr., for appellee Elias Brothers Restaurant, Inc.
Per Curiam.
{¶ 9} The court of аppeals held that the commission did not abuse its discretion in finding that Athey had constructively elected against receiving IEC compensation. We agree.
{¶ 10}
{¶ 11} To resolve this dispute we must again note that the commission is the exclusive evaluator of weight and credibility and that as long as some evidence supports the commission‘s decision, we will defer to its judgment. State ex rel. LTV Steel Co. v. Indus. Comm. (2000), 88 Ohio St.3d 284, 287, 725 N.E.2d 639, 642. Here, the commission might have inferred from Athey‘s evidence that Elby‘s surreptitiously locked her into an election by sending her a PPD compensation check without rеgard to the September 26, 1995 letter and notwithstanding her counsel‘s April 9, 1996 letter. But it did not. The commission instead credited evidence suggesting that Elby‘s simply acted in compliance with whаt reasonably appeared to be Athey‘s September 26, 1995 request for PPD compensation. In
{¶ 12} Athey also insists that
“[N]otices and requests communicated by letter are accepted routinely by the commission in lieu of printed forms. Further, although
Ohio Adm.Code 4121-3-02(C) states that printed forms ‘should’ be used to facilitatе prompt adjudications, the rule does not mandate their use exclusively. * * *“Moreover, it is important to recognize that the commission did not rely solely on [the September 26, 1995] letter. It also relied on the subsequent behavior of claimant, which was consistent with the request in the letter. Claimant accepted the percentage award and paid her attorneys their fee. Her attorneys, aware of the order awarding PPD, accepted their share and did not promptly file a notice of election of IEC compensation.”
{¶ 13} Neither we nor the court of appeals can substitute our judgment for the commission‘s in evaluating evidence. Accordingly, the court of appeals’ judgment denying a writ of mandamus to vacate the commission‘s order denying a change of election is affirmed.
Judgment affirmed.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, J., concurs in judgment.
Notes
“Partial disability compensation shall be paid as follows, provided, that an employee may elect as between divisions (A) and (B) of this section as to the manner of receiving the compensаtion set forth in this section:
“(A) In case of injury or occupational disease resulting in partial disability * * *, the employee shall receive per week sixty-six and two-thirds per cent of the impairment of his earning capacity which results from the injury or occupational disease during the continuance thereof, not to exceed a mаximum amount of weekly compensation which is equal to the statewide average weekly wage * * *, but not in a greater sum in the aggregate than seventeen thousand five hundrеd dollars.
” * * *
“Whenever such application is filed, the [DHO] shall set the application for hearing with written notices to all interested persons. After hearing and determination, the employee shall file his election to receive compensation for partial disability under either division (A) or (B) of this section, and such election may thereafter be changed upon approval of the [DHO] for good cause shown.” 138 Ohio Laws, Part I, 1733.