549 N.E.2d 532 | Ohio Ct. App. | 1988
These are original actions in mandamus, which have been consolidated for referral, brought by relators who seek an order from this court directing respondents, Industrial Commission of Ohio ("commission") and the Bureau of Workers' Compensation ("bureau"), to process relators' applications to transfer as state fund employers to self-insured status pursuant to Ohio Adm. Code
The parties have stipulated the relevant facts. Effective February 17, 1981, the commission had properly adopted Ohio Adm. Code
"If at the time of applying for the self-insurance status the employer is a state risk, which means that it has industrial insurance coverage by paying premiums to the state insurance fund, the following additional provisions shall be applicable:
"(1) When an employer requests approval of the industrial commission to transfer from state fund to self-insurance, the actuary of the commission and bureau shall determine, on the basis of the full past experience of the industrial commission and the bureau of workers' compensation, the amount of the liability of such employer to the commission and bureau for losses incurred and losses which may be incurred for injuries oroccupational diseases occurring during the oldest four of thelatest five-calendar-year period used in the most recent meritrating calculations as of the date of filing of the applicationfor self-insurance. If the ultimate liability of risk losses exceeds pure premium paid on payroll for those same four calendar years, the difference shall be paid by the risk to the state insurance fund. If pure premium paid exceeds the ultimate liability of risk losses, then no refund of excess premium shall be made. The same principles shall apply to cases of a merger by a self-insuring employer and a state fund employer under the self-insurer's status." (Emphasis added.)
Subsequently, on February 6, 1984, the commission adopted a resolution which declared a "temporary moratorium" on all applications for self-insurance filed on or after the date of the resolution because of a study undertaken by respondents to evaluate the actuarial soundness of the state fund as affected by the grant of self-insured status to employers. Thereafter, on June 11, 1984, the commission resolved to promulgate new rules and/or amendments to its current rules regarding the transfer of state fund employers to self-insured employers, and to evaluate all applications filed on or after February 6, 1984 pursuant to the new or amended rules. On September 3, the commission adopted a new resolution which provided that the "temporary moratorium" was terminated, effective September 3, 1985, and that all applications filed on or after February 6, 1984 would be processed in accordance with the amendments to Ohio Adm. Code
"If a state insurance fund employer or a succeeding employer, as described in paragraph (B)(1) of rule
During the interim, both relators had filed applications seeking self-insured status under Ohio workers' compensation laws. Reider's, Inc. filed its application on March 17, 1984 while the Kenny King Corporation had filed its application on November 1, 1984. The bureau notified the Kenny King Corporation on December 16, 1985 and Reider's, Inc., on March 11, 1986 that it had calculated their liability pursuant to the provisions of Ohio Adm. Code
Relators then instituted the instant causes in this court requesting relief in mandamus. The matter was referred to a referee pursuant to Civ. R. 53(C) and Section 13, Local Rule 11 of the Tenth District Court of Appeals. The referee, on March 23, 1988, rendered a report which made certain findings of fact and conclusions of law, to which neither party has filed objections.
Relators' complaints contend that the resolutions did not rescind the buy-out rules amended effective February 17, 1981 because the resolutions were not promulgated as rules pursuant to R.C. Chapter 119. Relators further maintain that the resolutions are invalid as retroactive attempts to alter relators' substantive rights. On the other hand, respondents maintain that the resolutions are binding upon relators' applications because the resolutions were not required to be promulgated as rules.
The referee concluded that the commission had no authority to rescind, by resolution, the operation of Ohio Adm. Code
The referee concluded, based on the rationale of McLeanTrucking, supra, and Condee, supra, that the "temporary moratorium" was but an attempt to rescind by rule, which had not been properly promulgated, an already existing rule. Accordingly, the referee recommended that this court issue writs of mandamus directing respondents to process relators' applications for self-insurance status under Ohio Adm. Code
We find the referee's reasoning compelling and adopt the report and recommendation in its entirety as our own. Clearly, the commission's February 6, 1984 resolution declaring a "temporary moratorium" was but a thinly veiled attempt to rescind a preexisting rule, as defined by R.C.
The referee also correctly concluded that relators' arguments regarding the retroactive application of the buy-out rule effective September 3, 1985 need not be addressed. Since the commission did not properly promulgate the "rule" which purported to give retroactive application to Ohio Adm. Code
Writs allowed.
REILLY and MCCORMAC, JJ., concur. *246