State ex rel. Manor Care, Inc. v. Bur. of Workers' Comp. (Slip Opinion) , 2020 Ohio 5373 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Manor Care, Inc. v. Bur. of Workers’ Comp., Slip Opinion No. 2020-Ohio-5373.]
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SLIP OPINION NO. 2020-OHIO-5373THE STATE EX REL. MANOR CARE, INC., APPELLANT, v. BUREAU OF
WORKERS’ COMPENSATION ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Manor Care, Inc. v. Bur. of Workers’ Comp., Slip
Opinion No. 2020-Ohio-5373.]
Workers’ compensation—To maintain the privilege of self-insurance, an employer
must pay all compensation as required by Ohio’s workers’ compensation
laws—An employer’s obligation to reimburse Bureau of Workers’
Compensation for relief-fund benefits is separate and distinct from its
obligation to pay injured workers their awarded compensation—Relief-
fund benefits may not be used to “offset” an incorrect payment of
permanent-total-disability compensation—Court of appeals’ judgment
affirmed.
(No. 2019-1046—Submitted August 4, 2020—Decided November 25, 2020.)
APPEAL from the Court of Appeals for Franklin County, No. 17AP-864,
2019-Ohio-2578.
SUPREME COURT OF OHIO
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FRENCH, J.
{¶ 1} Appellant, Manor Care, Inc., a self-insured employer, made lump-
sum payments under protest to two injured workers, in order to correct its long-
term underpayment of their permanent-total-disability (“PTD”) compensation.
Manor Care then asked appellee Bureau of Workers’ Compensation for
reimbursement from the Disabled Workers’ Relief Fund (“relief fund”), arguing
that Manor Care’s underpayment of PTD compensation should be offset by the
bureau’s corresponding overpayment of relief-fund benefits to the same employees,
for which Manor Care had reimbursed the bureau as part of its annual assessments.
The bureau denied the request. Manor Care sought a writ of mandamus ordering
the bureau to reimburse it for the lump-sum PTD-compensation payments; the
Tenth District denied the writ. Manor Care appealed and moved for oral argument.
We affirm the Tenth District’s judgment and deny the motion for oral argument.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Work Injuries and Benefit Awards
{¶ 2} After sustaining injuries while working for Manor Care, appellees
Mozell Kelly and Katalin Palotay were each awarded PTD compensation in the
mid-1990s. Self-insured employers like Manor Care pay PTD compensation
directly to injured workers. R.C. 4123.46(B).
{¶ 3} Kelly and Palotay were also awarded relief-fund benefits. The
General Assembly created the relief fund in 1953 to supplement the monthly
income of workers whose PTD-compensation rates, combined with the rates of any
social-security disability compensation, fall below the minimum set forth in R.C.
4123.413 (adjusted annually for inflation). State ex rel. Martin v. Connor, 9 Ohio
St.3d 213, 459 N.E.2d 889 (1984); see also R.C. 4123.412; R.C. 4123.413. The
relief fund is held by the treasurer of state and is separate from the state workers’
compensation fund. R.C. 4123.412. The bureau pays benefits from the relief fund
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directly to all injured workers who participate in that fund, regardless of their
employer’s status as a self-insured or state-fund employer. R.C. 4123.412; R.C.
4123.411(C). How an employer contributes to the relief fund, however, does
depend on its status: state-fund employers pay an annual assessment on their gross
payroll, while the bureau bills each self-insured employer semiannually for all
relief-fund payments made to that employer’s relief-fund participants, dollar-for-
dollar. R.C. 4123.411(B) and (C).
{¶ 4} Accordingly, Kelly and Palotay received PTD compensation directly
from Manor Care, but they received relief-fund payments from the bureau. Manor
Care then paid to the bureau, as part of its assessments, amounts equal to the relief-
fund benefits Kelly and Palotay received. Each year, the bureau sent Kelly and
Palotay, as well as Manor Care, an order setting forth the relief-fund benefits to
which the participants were entitled, based on their PTD-compensation and social-
security-disability-compensation rates. The orders stated that the injured worker or
the employer could appeal within 14 days. Manor Care did not appeal any of the
orders regarding Kelly or Palotay.
B. 2014 Audit
{¶ 5} In 2014, the bureau’s Self-Insured Department conducted a
compliance audit of Manor Care’s PTD-compensation claims, in which it
determined that Manor Care had been underpaying Kelly’s and Palotay’s PTD
compensation from the outset, because their initial PTD-compensation rates had
been set too low. As a corollary, the bureau had, from the outset, been overpaying
Kelly’s and Palotay’s relief-fund benefits. Manor Care asserts that the PTD-
compensation underpayment equaled the relief-fund-benefit overpayment.
{¶ 6} The record does not demonstrate whether the Industrial Commission
or Manor Care established Kelly’s and Palotay’s initial, incorrect PTD-
compensation rates. The scant evidence on that question is conflicting: though the
commission’s 2015 Procedural Guide for Self-Insured Claims Administration
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states, “The [Industrial Commission] calculates the PTD declared rate in PTD
claims determined prior to April 19, 1999,” the commission’s mid-1990s’ orders
awarding compensation to Kelly and Palotay do not set forth the rates.
{¶ 7} In September 2014, the bureau notified Manor Care, by e-mail, of the
PTD-compensation underpayments. Separately, it issued orders notifying Kelly
and Palotay of the relief-fund-benefit overpayments and stating that the overpaid
amounts would be recouped by withholding future cost-of-living increases from
Kelly’s and Palotay’s relief-fund payments from the date the overpayment was
determined.
{¶ 8} In January 2015, the bureau stated that it would revoke Manor Care’s
self-insured status unless Manor Care made lump-sum payments to Kelly and
Palotay to make up for its underpayment of their PTD compensation. In support of
its position, the bureau cited Ohio Adm.Code 4123-19-03(K)(7), which provides
that to maintain the privilege of self-insurance, an employer must “pay all
compensation as required by the workers’ compensation laws of the state of Ohio.”
Manor Care made the lump-sum payments to Kelly and Palotay under protest,
asserting that its reimbursement of the bureau for the overpaid relief-fund benefits
offset its underpayment of PTD compensation.
C. Postaudit Administrative Proceedings
{¶ 9} Manor Care asked the commission to exercise continuing jurisdiction
and determine its obligations. The commission held a hearing, at which Manor
Care asked it to vacate the orders declaring the relief-fund-benefit overpayments,
find Manor Care not liable for the PTD-compensation underpayments, and order
the bureau to reimburse Manor Care from the relief fund for its lump-sum PTD-
compensation payments to Kelly and Palotay.
{¶ 10} The staff hearing officer (“SHO”) vacated the relief-fund-benefit-
overpayment orders but concluded that he lacked the authority to order the bureau
to reimburse Manor Care for the lump-sum PTD-compensation payments. Manor
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Care filed an appeal of the SHO’s order but voluntarily dismissed it a few days
later.
{¶ 11} Manor Care then sent a letter to the director of the bureau, requesting
reimbursement for the lump-sum payments. The director rejected the request.
Manor Care appealed to the bureau’s Self-Insured Review Panel, which held a
hearing and denied the appeal. Manor Care then appealed to the administrator of
the bureau. The administrator upheld the panel’s decision, concluding:
[The relief fund] is a separate fund created by statute for a
specific purpose, to provide supplemental benefits to injured
workers with low PTD rates of compensation. The employer’s
obligation to reimburse [the bureau] for [relief-fund] benefits is
separate and distinct from its obligation to pay injured workers their
awarded compensation. [Relief-fund benefits] cannot be used to
“offset” an incorrect payment of PTD, which is the relief requested
by the employer.
D. Mandamus Action
{¶ 12} In December 2017, Manor Care filed this action in the Tenth District,
alleging that the bureau “erred, acted unlawfully and abused its discretion by
requiring Manor Care to, in effect double-pay the alleged PTD underpayment to
Claimants and refusing to reimburse, or alternatively credit, Manor Care for the
PTD underpayment amount.” It sought a writ of mandamus “finding Manor Care
entitled to equitable restitution” and ordering the bureau to reimburse it from the
relief fund or alternatively to grant a credit against Manor Care’s relief-fund
assessments, in the amount of the PTD-compensation underpayment.
{¶ 13} The Tenth District determined that while the bureau and Manor Care
both “operated under a mutual mistake of fact * * *, [Manor Care] was a self-
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insured employer and in the best position to correct that mistake.” 2019-Ohio-
2578, ¶ 10. The court denied the writ, concluding that Manor Care “has failed to
demonstrate clear and convincing evidence that it has a right to reimbursement or
that [the bureau] has a duty to pay reimbursement.” Id.II. ANALYSIS
A. Mandamus Standard
{¶ 14} Mandamus relief is appropriate only if a relator establishes “a clear
legal right to the relief requested, a clear legal duty on the part of the bureau to
provide the relief, and the lack of an adequate remedy in the ordinary course of the
law.” State ex rel. Aaron’s, Inc. v. Bur. of Workers’ Comp., 148 Ohio St.3d 34,
2016-Ohio-5011, 68 N.E.3d 757, ¶ 18. The relator must make this showing by clear
and convincing evidence. State ex rel. WFAL Constr. v. Buehrer, 144 Ohio St.3d
21, 2015-Ohio-2305, 40 N.E.3d 1079, ¶ 12. “When an order is adequately
explained and based on some evidence, there is no abuse of discretion and a
reviewing court must not disturb the order.” Aaron’s Inc. at ¶ 18.
B. Manor Care Has Not Established a Clear Legal Right to Relief
{¶ 15} Manor Care identifies no authority granting a clear legal right to the
relief it seeks: a lump-sum payment from the relief fund or a credit against future
relief-fund contributions for all of its participants to offset its lump-sum PTD-
compensation payments to Kelly and Palotay. R.C. 4123.412, which governs
disbursements from the relief fund, provides for payments from the fund to
qualified injured workers, but it makes no provision for payments to other parties.
Manor Care cites no authority authorizing payments from the relief fund to an
employer, let alone granting a clear legal right to that form of relief. Manor Care’s
assertion that the commission was at fault for establishing Kelly’s and Palotay’s
initial, erroneous PTD-compensation rates, which the record does not establish by
clear and convincing evidence in any event, is therefore inapposite.
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{¶ 16} Moreover, Manor Care’s claim to relief rests on its argument that the
bureau abused its discretion by not merely making an “accounting adjustment” to
allow Manor Care’s PTD-compensation underpayment to be offset by its payment
of assessments reimbursing the bureau for the overpaid relief-fund benefits, rather
than requiring it to make lump-sum PTD-compensation payments. Amici curiae
Ohio Chamber of Commerce and Ohio Self-Insurers Association similarly argue
that the bureau should have merely provided for “an equitable adjustment, namely
a finding of the underpayment offset by the overpayment.” However, PTD
compensation and relief-fund benefits are separate and distinct statutory creatures
serving different purposes. See Thompson v. Indus. Comm., 1 Ohio St.3d 244, 251,
438 N.E.2d 1167 (1982); State ex rel. Ford Motor Co. v. Indus. Comm., 10th Dist.
Franklin No. 13AP-762, 2015-Ohio-181, ¶ 44.
{¶ 17} PTD compensation is provided for under R.C. 4123.58; relief-fund
benefits are provided for under R.C. 4123.412. Self-insured employers pay PTD
compensation directly to employees, R.C. 4123.35(B), 4123.58, while the bureau
pays workers directly from the relief fund, and self-insured employers then
reimburse the relief fund for those payments, R.C. 4123.411(C), 4123.412. PTD
compensation is “compensation” that self-insured employers are required to
provide in order to maintain their self-insured status under Ohio Adm.Code 4123-
19-03(K)(7), while relief-fund payments are not, see Thompson at 251 and Ford
Motor Co. at ¶ 44-51. Likewise, R.C. 4123.35(B) requires self-insured employers
to provide PTD compensation “equal to or greater than” that provided by the state
fund, but it contains no such requirement with respect to relief-fund benefits.
{¶ 18} Most importantly, Manor Care cites no authority imposing on the
bureau a clear legal duty to deem overpaid relief-fund benefits de facto PTD
compensation. R.C. 4123.412 provides for payments from the relief fund “in
amounts to each participant as is provided in [R.C.] 4123.414,” i.e., in the amounts
of the relief-fund benefits to which each participant is entitled. Manor Care cites
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no authority permitting the bureau to treat relief-fund-benefit payments as PTD
compensation, let alone imposing a clear legal duty to do so. The bureau therefore
did not abuse its discretion by rejecting Manor Care’s proposed accounting
adjustment and instead requiring Manor Care to correct its PTD-compensation
underpayment by making lump-sum payments to Kelly and Palotay.
{¶ 19} As alleged in its complaint, Manor Care seeks a claim for equitable
restitution. But the issuance of a writ of mandamus depends on the existence of a
clear legal—not equitable—right. State ex rel. Habe v. S. Euclid, 56 Ohio St.3d
117, 119, 564 N.E.2d 483 (1990). And that right must be created by the General
Assembly, not this court. State ex rel. Perry Twp. Bd. of Trustees v. Husted, 154
Ohio St.3d 174, 2018-Ohio-3830, 112 N.E.3d 889, ¶ 13 (“This court cannot create
a legal duty enforceable in mandamus; only the General Assembly has that
authority”). Manor Care has not identified any statutory provision granting a clear
legal right to its requested relief.
{¶ 20} Our decision, however, does not prevent Manor Care from pursuing
alternative avenues of redress. Starting from the mid-1990s, the bureau paid relief-
fund benefits to Kelly and Palotay to supplement their PTD compensation. And
Manor Care complied with its statutory duty to reimburse the bureau dollar-for-
dollar for those relief-fund payments. R.C. 4123.411(B) and (C). It defies logic
and offends notions of fairness that Manor Care must pay $78,897.34 to correct the
underpayment of PTD compensation to Kelly and Palotay without any
corresponding recovery for the relief-fund overpayments that Manor Care made for
decades. While we acknowledge the constraints on our authority to issue the
requested relief in mandamus, our decision imposes no constraints on the equitable
powers of other courts.
III. ORAL ARGUMENT
{¶ 21} In a direct appeal, the granting of a request for oral argument is
subject to our discretion. S.Ct.Prac.R. 17.02(A). In exercising that discretion, we
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consider whether the case involves (1) a matter of great public importance,
(2) complex issues of law or fact, (3) a substantial constitutional issue, or (4) a
conflict among courts of appeals. See State ex rel. BF Goodrich Co., Specialty
Chems. Div. v. Indus. Comm., 148 Ohio St.3d 212, 2016-Ohio-7988, 69 N.E.3d
728, ¶ 23.
{¶ 22} Manor Care argues that we should hold oral argument because this
case is of “tremendous import for self-insured employers and the Ohio business
community as evidenced by the Ohio Self-Insurers Association’s and Chamber of
Commerce’s Amicus participation.” It also argues that no oral argument was held
in the court of appeals and that the “cause of justice” would therefore benefit from
holding oral argument here.
{¶ 23} We deny the motion. Manor Care’s arguments do not address the
factors set forth above. Importance of the case to the parties and those similarly
situated is not the same as a case of great public importance. Further, as the bureau
notes, the lack of oral argument below is not a relevant factor. And the briefs in
this case adequately explain the facts and the parties’ arguments.
IV. CONCLUSION
{¶ 24} For the foregoing reasons, we affirm the Tenth District’s judgment
and deny the motion for oral argument.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, and DEWINE, JJ., concur.
DONNELLY and STEWART, JJ., concur in judgment only.
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Kegler, Brown, Hill & Ritter, Co., L.P.A., David M. McCarty, Randall W.
Mikes, and Jane K. Gleaves, for appellant.
Dave Yost, Attorney General, and Douglas R. Unver, Assistant Attorney
General, for appellee Bureau of Workers’ Compensation.
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Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey, urging
reversal for amici curiae Ohio Chamber of Commerce and Ohio Self-Insurers
Association.
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