Opinion
No. 82-1224
Decided July 13, 1983.
Workers' compensation — Jurisdiction of commission to act on motion for reconsideration in absence of order vacating underlying order — Commission retains jurisdiction to proceed, when — R.C. 4123.52, construed.
APPEAL from the Court of Appeals for Franklin County.
On July 25, 1979, Leemon Baker, Jr., appellant, was injured in the course of and arising out of his employment with Dayton Malleable, Inc., a self-insured employer. On June 26, 1980, his claim was allowed for right inguinal hernia and appropriate compensation was ordered paid. Dayton Malleable, Inc., appellee herein, appealed to the Dayton Regional Board of Review which affirmed the award on September 5, 1980. Appellee then filed an appeal to the Industrial Commission ("commission") which, on April 13, 1981, vacated the order of the board of review and disallowed the claim.
On May 12, 1981, appellant filed a motion for reconsideration with the commission which was granted on May 27, 1981. The order of April 13, 1981, however, was not vacated. At the hearing on November 13, 1981, the commission issued an order stating that it was without jurisdiction to reconsider appellant's case according to the rule expressed in State, ex rel. Prayner, v. Indus. Comm. (1965), 2 Ohio St.2d 120 [31 O.O.2d 192], and Todd v. General Motors (1981), 65 Ohio St.2d 18 [19 O.O.3d 195].
Appellant filed a mandamus action in the court of appeals seeking to compel the commission to reconsider his claim. The court of appeals denied the writ.
The matter is now before this court upon an appeal as of right.
Mr. Michael J. Muldoon, for appellant.
Smith Schnacke Co., L.P.A., and Ms. Edna Scheuer, for appellee Dayton Malleable, Inc.
Mr. William J. Brown, attorney general, and Mr. James E. Davidson, for appellee Industrial Commission.
This appeal presents the question of whether by granting a motion for reconsideration the commission stays the period of time within which it has jurisdiction to act regardless of whether the underlying order is vacated.
R.C. 4123.52 provides that "[t]he jurisdiction of the industrial commission over each case shall be continuing, and the commission may make such modification or change with respect to former findings or orders * * * as, in its opinion is justified. * * *" Appellees contend that this court placed limitations on that general authority in State, ex rel. Prayner, v. Indus. Comm. (1965), 2 Ohio St.2d 120 [31 O.O.2d 192], and Todd v. General Motors (1981), 65 Ohio St.2d 18 [19 O.O.3d 195], which limitations, they contend, apply to the instant case.
In Prayner, we stated at page 121 that the commission "has control over its orders until the actual institution of an appeal therefrom or until the expiration of the time for such an appeal." We did not state that the commission loses control over its orders thereafter. In Todd, we held that orders of the commission "may be vacated * * * and the matter * * * set for rehearing * * * until actual institution of a court appeal or the expiration of the 60-day appeal period * * *." We did not state that orders must be vacated within that period of time.
The purpose of the sixty-day limit on the filing of an appeal is to prevent stale claims and to encourage claimants to elect one of two remedies: administrative or judicial appeal. This purpose is fulfilled when, as in the instant case, the claimant files, and the commission grants, a motion for reconsideration. The claimant will not be penalized for electing an administrative remedy merely because the commission is slow to act.
Neither Prayner nor Todd precluded the commission from retaining jurisdiction over the instant case. Those decisions must be interpreted to mean that the commission must assert its jurisdiction within the sixty-day period in order to retain it. The commission asserted its jurisdiction with regard to the instant case when it granted appellant's motion for reconsideration.
The commission retains jurisdiction to proceed with appellant's case and a writ of mandamus is appropriate to compel them to so proceed. Accordingly, the judgment of the court of appeals is reversed and the writ is allowed.
Judgment reversed and writ allowed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.