State ex rel. Baker v. Industrial CommissionState ex rel. Baker v. Industrial Commission
{¶ 1} Rеlators-appellants, Karen Baker and her counsel, Schiavoni, Schiavoni, Bush & Muldowney Co., L.P.A. (“the Schiavoni firm” or “the law firm”), appeal the judgment of the Tenth District Court of Appeals denying their request for a writ of mandamus to compel appellee the administrator of the Bureau of Workers’ Compensation to pay legal fees to the Schiavoni firm out of Baker’s permanent-partial-disability-compensation award.
{¶ 2} Because the Schiavoni firm has no clear legal right to have the bureau pay its fees out of the award and the bureau has no clear legal duty to pay the attorney fees, the court of appeals denied the writ. We affirm.
Facts
{¶ 3} Baker was injured at work in 1995. Her workers’ cоmpensation claim was allowed for both physical and psychological injuries. She received temporary-total-disability compensation for a period of yеars.
{¶ 4} In 2008, following an investigation, the bureau filed a motion with appellee Industrial Commission asking for the declaration of an overpayment of
{¶ 5} The commission granted the motion and ordered that $63,479.77 be recouped pursuant to the fraud provisions in
{¶ 6} In Mаrch 2010, Baker, represented by an attorney with the Schiavoni firm, filed an application for an increase in her permanent-partial-disability compensation. The bureau found that she was entitled to a substantial increase in the percentage of her disability, and awarded a total amount of $24,649.50. The bureau eventually credited that entire award to reduce the overpayment balance.
{¶ 7} The Schiavoni firm filed a motion with the bureau for payment of its attorney fees in the amount of $8,216.50 for representing Baker in the suсcessful recovery of the award. The bureau referred the motion to the commission for adjudication of what was initially interpreted to be an attorney-client fee disрute. However, a district hearing officer concluded that there was no “fee dispute” pursuant to
{¶ 8} Following another hearing, the full commission determined that it lacked jurisdiction to resolve a fee dispute between a claimant’s counsel and the burеau and lacked jurisdiction to order the bureau to pay the attorney fees sought. The commission accordingly denied the law firm’s motion.
{¶ 9} Baker filed a complaint in mandamus against the commission in the court of appeals. She later amended her complaint to add the law firm as a relator and the administrator of the bureau as a respоndent. The matter was referred to a magistrate, who determined that the writ should be denied because the law firm has no clear legal right to receive payment of the attorney fees from the bureau and the bureau has no clear legal duty to pay the fees.
{¶ 10} In a split decision, the court of appeals adopted the magistrate’s findings of fact and conclusions of law and denied the writ. The court concluded that the bureau may withhold compensation that would otherwise be paid to a claimant in order to rеcover overpayments that were obtained by fraud and that in the circumstances of this case, the bureau is not obligated to pay the law firm’s fees out of the award. In addition, the court agreed with the commission’s determination that it lacks jurisdiction to adjudicate a fee dispute between the law firm and the bureau.
Legal Analysis
{¶ 12} To be entitled to an extraordinary remedy in mandamus, relators must establish a clear legal right to the relief requested, a clear legal duty on the part of the commission and/or bureau to provide the relief, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Gen. Motors Corp. v. Indus. Comm.,
{¶ 13} Relators seek a writ of mandamus to compel the bureau to pay the attorney fees to thе law firm from the permanent-partial-disability award. Relying on
{¶ 14} Relators’ arguments lack merit.
{¶ 15} Neither provision relied on by relators imposes a duty on the bureau to pay the attorney fеes in the situation here.
{¶ 16} Relators maintain that Baker executed this authorization and that it was filed along with the application to increase her permanent-partial-disability compensation, that she therefore authorized the bureau to forward any award generated to her counsel, and that this imposed a duty on the bureau to pay the law firm’s fees from the award. Relators’ argument fails.
{¶ 17}
{¶ 18} Next, relators maintain that the law firm has a lien on a portion of the permanent-partial-disability award and that it was not lawful for the bureau to include the law firm’s portion in the amount of the overpayment recouped. According to relators, the claim for attorney fees has priority over other claims. See, e.g., Cohen v. Goldberger,
{¶ 19}
{¶ 20} This is a fee dispute between the law firm and the bureau. The commission has no jurisdiction to adjudicate a fеe dispute of this type. Furthermore, relators seek to place a duty on the bureau that does not exist in law and cannot be enforced through mandamus. “[T]he creation оf the legal duty that a relator seeks to enforce is the distinct function of the legislative branch of government, and courts are not authorized to create the legal duty enforceable in mandamus.” (Emphаsis sic.) State ex rel. Pipoly v. State Teachers Retirement Sys.,
{¶21} Moreover, a writ of mandamus will not be issued if the relator has available a plain and adequate remedy in the ordinary course of the law.
{¶ 22} We affirm the judgment of the court of appeals.
Judgment affirmed.