BWC and IC Have Continuing Jurisdiction to Modify Previous Orders
State ex rel. Witt v. Indus. Comm., ___ Ohio St.3d ___, 2018-Ohio-1693 (5/2/18).
Issue: Can the Bureau of Workers’ Compensation and the Industrial Commission exercise continuing jurisdiction to modify previous awards beyond two years?
Background: In 1997, Witt had a work-related accident and his claim was allowed. The Bureau of Worker’s Compensation calculated his full weekly wage and average weekly wage and paid benefits. In 2014, he applied for and was granted permanent total compensation.
In 2015, the Bureau notified Witt that it had recalculated his full weekly wage and average weekly wage due to an original miscalculation. Witt appealed the order. The DHO affirmed the Bureau’s order.
Witt appealed, and the SHO modified the new AWW to a rate higher than the Bureau had established, but lower than the original amount. The SHO directed the BWC to recoup any overpayment from future benefits. The Commission refused further appeal.
Witt filed for a writ of mandamus alleging that the Bureau lacked statutory authority to exercise continuing jurisdiction and that the Commission’s decision to retroactively adjust his benefits was unsupported by law and an abuse of discretion.
The Court of Appeals denied the writ of mandamus. The Court found that the Bureau and Commission had continuing jurisdiction to correct a miscalculation and that there was no statutory requirement that the Bureau first file a motion in order to do so.
Decision: Supreme Court affirms the Court of Appeals and denies the writ of mandamus.
R.C. §4123.52(A) states that the Commission shall not make any changes more than two years from the date of application. Witt challenged the Bureau’s authority to adjust his previously paid compensation beyond the two-year period. Witt also argued that R.C. §4123.52 required the Bureau to file a motion or an application for permission to adjust his compensation instead of just issuing an order.
The Supreme Court states that R.C. §4123.52 does not require the Bureau to file an application in order to exercise its continuing jurisdiction authority. The Court looks to State ex rel. Drone v. Indus. Comm., 93 Ohio St.3d 151, 753 N.E.2d 185 (2001), which involved the Bureau’s recalculation of an injured worker’s average weekly wage. In Drone, the Bureau increased the worker’s average weekly wage without any party having filed a motion. In that case, the Supreme Court held that the Commission had to pay the injured worker all the compensation she would have received had her average weekly wage been calculated correctly initially (minus what she had already received).
The Supreme Court determined that the two-year limitation period in R.C. §4123.52 is not triggered unless an application to modify is filed.
The Supreme Court also held that the Bureau may exercise continuing jurisdiction to correct a mistake and issue an order without filing an application. Because no application had been filed, no two-year limitation period applied.
In this case, no application was filed and therefore the Supreme Court states that the Bureau can go back and collect an overpayment for the life of the claim.
Editor’s Comment: In his Supreme Court brief, Witt raised a laches defense arguing that the Bureau’s 18-year delay in recalculating his benefit rate was unreasonable. The Supreme Court finds that Witt failed to raise this issue in his complaint for a writ of mandamus in the Court of Appeals and therefore, he forfeited that defense.
If injured workers believe their average weekly wage is incorrect, they must file a motion to get it changed. They have no other course of action to change it. Based on R.C. §4123.52 the injured worker would be limited to a two-year adjustment period from the date of the application. So why can the Bureau, on its own, issue an order changing the average weekly wage back to the beginning of the claim and cause an overpayment?