    THE STATE EX REL. FRANK W. SCHAEFER, INC., APPELLANT, v. INDUSTRIAL

                    COMMISSION OF OHIO ET AL., APPELLEES.

 [Cite as State ex rel. Frank W. Schaefer, Inc. v. Indus. Comm. (1998), ___ Ohio

                                   St.3d ___.]

Workers’ compensation — Claim for compensation for asbestos-related death

      allowed — Former employer disputes that decedent’s last injurious

      exposure occurred during his employment, offers newly discovered evidence

      on issue of last injurious exposure, and asks that Industrial Commission

      reopen the death claim pursuant to its continuing jurisdiction under R.C.

      4123.52 — Industrial Commission does not abuse its discretion in refusing

      to reopen the death claim, when.

  (No. 96-816 — Submitted October 12, 1998 — Decided December 30, 1998.)

  APPEAL from the Court of Appeals for Franklin County, No. 94APD12-1809.

      It is undisputed that between 1934 and 1961, Donald G. Preston was heavily

exposed to asbestos in the course of his employment. From 1951 through 1961,

Preston worked for Plibrico Sales & Service, a company succeeded by appellant

Frank W. Schaefer, Inc. (“FWS”).      For approximately the next twenty years,

Preston was self-employed, doing residential general repair and maintenance.

      In 1989, Preston died of mesothelioma — an asbestos-induced cancer. His

widow, appellee-claimant herein, filed a death claim with appellee Industrial

Commission of Ohio. A district hearing officer allowed the death claim against

FWS. FWS appealed, questioning the conclusion — inherent in the death-claim

allowance against it — that decedent’s last injurious exposure to asbestos had

been in FWS’s employ.
         FWS does not dispute that at some point during the administrative appeals,

it was informed that decedent had kept records with regard to his subsequent self-

employment. FWS did not request those records at that time.

         The district hearing officer’s order was administratively affirmed. FWS

retained new legal counsel and appealed to the Franklin County Common Pleas

Court pursuant to R.C. 4123.512. During discovery, FWS, for the first time,

requested production of decedent’s business records. Widow-claimant promptly

forwarded those records. FWS does not dispute that those records — which

covered decedent’s approximately twenty years of self-employment — contained

only one reference to asbestos. That entry, dated August 17, 1962, stated that on

that date, decedent had replaced one piece of asbestos siding for which he charged

$16.

         It is undisputed that on September 28, 1993, FWS voluntarily dismissed its

common pleas appeal. Three days later, it filed a motion with the commission

requesting that the agency “initiate new proceedings and set this claim for hearing

on the issue of last injurious exposure and the appropriate employer to be charged

with this claim.” That motion was denied on September 12, 1994, since:

         “There has been no allegation that a fraud has been committed, nor a

clerical error or mistake resulting in prejudice to the claimant or the employer.

Left for consideration under Section 4123.52 is a determination of whether or not

new or changed circumstances or conditions have occurred since the final order on

the widow-claimant’s application for death benefits. The Staff Hearing Officer

finds that there are no new or changed circumstances or conditions, and no new

evidence which with due diligence could have been discovered prior to the final

order.




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       “The employer maintains that it should be permitted to reopen the question

of correct employer.    This is based solely on the existence of hand-written

business records kept by Donald Preston, deceased. The employer’s position is

that those business records indicate that he worked with asbestos products after

leaving the employ of Frank W. Shaeffer [sic] Company. Therefore, employer

states that it was not the last employer with whom the deceased worked where he

was exposed to asbestos. Therefore, employer states, it should be relieved of

responsibility for this claim. However, a careful reviewing of transcripts of the

District Hearing Officer’s Hearing on 6/14/94 and the Staff Hearing Officer[‘]s on

9/12/94 clearly shows that evidence was available.

       “According to Mr. Gene Robinson, Controller and Personnel Officer for

Frank W. Shaeffer [sic], who testified at both hearings, the widow-claimant

testified that there were business records available. Employer’s counsel at that

time commented on the fact that such records did in fact exist. (District Hearing

Officer transcript 6/14/94 Pages 5-6, Staff Hearing Officer transcript 9/12/94,

Pages 7-8.)

       “Therefore, the evidence employer now seeks to rely on was available at

least as early as the Regional Board of Review hearing on 5/7/91. Claimant’s

counsel stated at hearing that the evidence was not requested from the widow-

claimant by anyone until much later, after the employer had engaged new counsel.

When it was requested[,] it was supplied to the employer.

       “Since the evidence was available, and the fact that it was available was

know[n] to the controller of the company and to claimant’s then counsel, there are

no new facts, circumstances, or conditions, or evidence which could not with

reasonable diligence have been discovered prior to the final order. Therefore, the




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employer’s appeal is denied. The Staff Hearing Officer has no jurisdiction to

disturb the existing order.”

       FWS immediately refiled its appeal with the common pleas court. It also

filed a complaint in mandamus in the Court of Appeals for Franklin County,

alleging that the commission abused its discretion in refusing to reopen the case.

The appeals court disagreed and denied the writ. This cause is now before this

court upon an appeal as of right.

                               __________________

      Pickrel, Schaeffer & Ebeling Co., L.P.A., David C. Korte, C. Michelle

Depew and Mary M. Biagioli, for appellant.

      Betty D. Montgomery, Attorney General, and William J. McDonald,

Assistant Attorney General, for appellee Industrial Commission.

      Samuels & Northrop Co., L.P.A., and Joseph M. Reidy, for appellee

claimant.

                               __________________

      Per Curiam. The payment of compensation for asbestos-related death lies

with the employer at which claimant experienced his/her “last injurious exposure.”

R.C. 4123.68(Y). FWS does not dispute that decedent was exposed to asbestos

during his employment with FWS. It does, however, dispute that it was claimant’s

last injurious exposure. As such, FWS seeks to force the commission to reopen

the death claim pursuant to the continuing jurisdiction provisions of R.C. 4123.52.

FWS’s position is unpersuasive.

      R.C. 4123.52 relevantly provides:

      “The jurisdiction of the Industrial Commission * * * over each case is

continuing, and the commission may make such modification or change with




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respect to former findings or orders with respect thereto, as, in its opinion is

justified.”

       Continuing jurisdiction, however, is not unlimited.    State ex rel. B&C

Machine Co. v. Indus. Comm. (1992), 65 Ohio St.3d 538, 605 N.E.2d 372. It can

be invoked only in certain enumerated situations, one of which is new and

changed circumstances. State ex rel. Cuyahoga Hts. Bd. of Edn. v. Johnston

(1979), 58 Ohio St.2d 132, 12 O.O.3d 128, 388 N.E.2d 1383. A derivative of this

requirement is set forth in former Industrial Commission Resolution No. R93-9-

1(B), now Resolution No. R94-1-6(2), which listed the following among the

permissible grounds for exercising continuing jurisdiction:

       “There exists newly discovered evidence which by due diligence could not

have been discovered and filed by the appellant prior to the date of the hearing

held under Section 4123.511(D) [of the Revised Code].          Newly discovered

evidence shall be relevant to the issue on appeal but shall not be merely

corroborative of evidence which was submitted prior to the date of hearing held

under Section 4123.511(D).”

       FWS asserts that decedent’s business records are newly discovered evidence

which could not have been discovered by due diligence. We disagree.

       FWS does not dispute that it knew during the course of administrative

proceedings that decedent kept self-employment records and that it did not request

those records. Due diligence, at a minimum, required FWS to ask for the records.

FWS responds that it did not request the records during administrative

proceedings because widow-claimant “misrepresented” the records, stating that

they were simply financial records. This defense fails. First, widow-claimant did

not misrepresent the nature of the records. They were primarily financial records.

Again, there was only minimal reference to anything regarding asbestos. Second,



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even if it had been a misrepresentation, it was FWS’s decision to accept widow-

claimant’s description, rather than secure the records and see for itself. FWS’s

inaction, under these facts, precludes an assertion of undiscoverability and due

diligence.

      FWS also alludes to former Industrial Commission Resolution No. R93-9-

1(C), which authorized continuing jurisdiction when substantial injustice would

otherwise result. This suggestion also lacks merit. The singular reference to an

asbestos encounter in the twenty years or so after claimant left FWS seems grossly

inadequate to support a conclusion that decedent’s last injurious exposure

occurred during this period of self-employment.      Therefore, there is nothing

substantially unjust about leaving decedent’s case closed and allowing continued

assessment against the employer at which decedent had his most recent significant

exposure to asbestos.

      The judgment of the court of appeals is affirmed.

                                                              Judgment affirmed.

      MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.




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