             OPINIONS OF THE SUPREME COURT OF OHIO
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     The State ex rel. B & C Machine Company, Appellant, v.
Industrial Commission of Ohio et al., Appellees.
     [Cite as State ex rel. B & C Machine Co. v. Indus. Comm.
(1992),      Ohio St.3d   .]
Workers' compensation -- Industrial Commission has authority
     pursuant to R.C. 4123.52 to modify a prior order that is
     clearly a mistake of law.
The Industrial Commission has the authority pursuant to
     R.C. 4123.52 to modify a prior order that is clearly a
     mistake of law.
     (No. 92-150 -- Submitted October 20, 1992 -- Decided
December 30, 1992.)
     Appeal from the Court of Appeals for Franklin County, No.
90AP-624.
     In 1969, Elmer Holik was injured while in the course of
and arising from his employment with appellant, B & C Machine
Company. Following the allowance of his workers' compensation
claim, Elmer applied for and was granted an additional forty
percent award due to appellant's violation of a specific safety
requirement.
     In 1977, appellee Industrial Commission of Ohio
("commission") awarded Elmer "medical treatment for control of
diabetes due to industrial injury of amputation left hand."
Elmer died in 1978 of diabetes-related renal disease. On
October 21, 1980, Elmer's widow, appellee Sylvia R. Holik,
filed an application for death benefits. A district hearing
officer granted the death claim in February 1981, finding that
Elmer's death was a result of an injury sustained in his
employment with appellant. The order, and thus the award, were
administratively affirmed. However, the death benefits did not
include the additional forty percent awarded to Elmer during
his lifetime for violation, by appellant, of the specific
safety requirement.
     On October 7, 1986, Sylvia's counsel wrote to the
commission, claiming that the additional forty percent award
entitled Sylvia to an additional $86.40 per week in death
benefits. Sylvia's counsel further claimed that Sylvia was due
eight years of additional compensation amounting to
$35,942.40. The commission construed the letter as a motion
for further benefits and scheduled the matter for hearing.
     A hearing was conducted on May 2, 1989, and, as a result,
the commission denied Sylvia's request for increased benefits.
The commission concluded that the additional forty percent
award paid to Elmer during his lifetime abated at his death.
The commission further concluded that Sylvia was not entitled
to the additional award because she did not file for such
compensation within two years of Elmer's death. The commission
stated that its decision was based upon Indus. Comm. v. Davis
(1933), 126 Ohio St. 593, 186 N.E. 505, and State ex rel. Carr
v. Indus. Comm. (1935), 130 Ohio St. 185, 4 O.O. 122, 198 N.E.
480.
     On July 20, 1989, Sylvia requested that the commission
rehear its prior order denying the additional benefits. The
following day, Sylvia also appealed the commission's order,
pursuant to R.C. 4123.519, to the Court of Common Pleas of
Summit County. Subsequently, the commission vacated its prior
order and, on January 17, 1990, granted the increased award,
stating that:
     "It is the finding and order of the Commission that is
[sic] retains jurisdiction over this claim in order to
determine whether or not the order finding a violation of
specific safety requirement dated July 28, 1973 was abated by
reason of the claimant's death * * *. It is the finding of the
Industrial Commission that the widow-claimant does have a
vested right to continue to receive the additional award
ordered by the Industrial Commission on July 28, 1973 and her
right to receive such benefits survives the death of the
decedent. * * * [O]nce a violation of specific safety
requirement has been found by the Industrial Commission in the
deceased-claimant's claim, it is unnecessary that the
widow-claimant re-apply to the Industrial Commission for
re-determining the existence or finding of a violation of
specific safety requirement. Payment of the additional award
to the widow-claimant * * * is to be made from October 26, 1978
to the present. The violation of the specific safety
requirement award was July 28, 1973. 40% award shall attach to
death benefits payable to the widow-claimant. This
determination is made pursuant to Commission rule 4121-3-20(A)
and Article 2, Section 35 of the Ohio Constitution. * * *"
     Appellant filed a complaint in mandamus in the Court of
Appeals for Franklin County, challenging the commission's
January 17, 1990 findings and order. The court of appeals
found no abuse of discretion and denied the writ.
     This matter is now before this court upon an appeal as of
right.

     Buckingham, Doolittle & Burroughs, Brett L. Miller and
Eleanor J. Tschugunov, for appellant.
     Lee I. Fisher, Attorney General, and Cordelia A. Glenn,
Assistant Attorney General, for appellee Industrial Commission.
     Stewart Jaffy & Associates, Stewart R. Jaffy and Marc J.
Jaffy; Pavick & Pavick and Michael J. Pavick, for appellee
Holik.

     Douglas, J.   The underlying issue in this appeal is
whether the commission had the authority to vacate and
reconsider its 1989 order denying additional benefits to Sylvia
Holik. For the reasons that follow, we find that the
commission had such authority. We further hold that the
commission's January 17, 1990 decision is in accordance with
law.
     As a threshold matter, we note that appellant essentially
concedes that the Summit County Court of Common Pleas did not
have subject-matter jurisdiction to address the merits of
Sylvia's R.C. 4123.519 appeal but, nevertheless, contends,
citing various cases, that the filing of the notice of appeal
in the common pleas court by Sylvia divested the commission of
jurisdiction to reconsider its 1989 order, rendering the
commission's January 17, 1990 decision null and void. The
court of appeals, in addressing appellant's contention,
concluded that: "* * * [T]he filing of an appeal terminates
the Industrial Commission's authority to reconsider its
decision only when the decision is appealable to a court. In
other words, the agency's authority to reconsider its decision
is not terminated by an attempted appeal from a decision which
as a matter of law is not appealable." We agree with the
conclusion reached by the court of appeals.
     Without question, specific-safety-requirement-violation
determinations by the commission are not directly appealable to
the court of common pleas. See Afrates v. Lorain (1992), 63
Ohio St.3d 22, 584 N.E.2d 1175. Section 35, Article II of the
Ohio Constitution vests exclusive and final jurisdiction in the
commission, with respect to specific-safety-requirement
violations, subject to correction in mandamus upon a showing of
an abuse of discretion. State ex rel. Cincinnati Drum Service,
Inc. v. Indus. Comm. (1990), 52 Ohio St.3d 135, 556 N.E.2d
459. Further, this court has determined that the filing of a
R.C. 4123.519 appeal from a commission order which is not
appealable is a "futile act." However, such a filing does not
bar a suit in mandamus. See State ex rel. Dodson v. Indus.
Comm. (1979), 58 Ohio St.2d 399, 401, 12 O.O.3d 345, 346, 390
N.E.2d 1189, 1190. Thus, in view of the foregoing, we believe
that the notice of appeal filed by Sylvia should be treated as
a nullity and, as such, the notice does not divest the
commission of jurisdiction to reconsider its 1989 order.
Moreover, it is clear that appellant's reliance on those cases
which hold that the commission retains jurisdiction to
reconsider a decision only until the time an appeal is filed,
or the time for appeal has run, is misplaced.
     Appellant also objects to the January 17, 1990 award of
additional benefits to Sylvia on the basis that the commission
did not have jurisdiction to award such benefits since Sylvia's
1986 request was not filed within two years of Elmer's death.
However, we believe under the facts of this case the commission
had the authority under R.C. 4123.52 to consider Sylvia's 1986
request and correct its clear mistake of law in originally
denying the additional benefits.
     Continuing jurisdiction is vested in the commission by
R.C. 4123.52, which provides, in part, that:
     "The 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 with respect thereto, as, in its opinion is justified."
(Emphasis added.)
     R.C. 4123.52 contains a broad grant of authority.
However, we are aware that the commission's continuing
jurisdiction is not unlimited. See, e.g., State ex rel. Gatlin
v. Yellow Freight System, Inc. (1985), 18 Ohio St.3d 246, 18
OBR 302, 480 N.E.3d 487 (commission has inherent power to
reconsider its order for a reasonable period of time absent
statutory or administrative restrictions); 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 (just cause for
modification of a prior order includes new and changed
conditions); State ex rel. Weimer v. Indus. Comm. (1980), 62
Ohio St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149 (continuing
jurisdiction exists when prior order is clearly a mistake of
fact); State ex rel. Kilgore v. Indus. Comm. (1930), 123 Ohio
St. 164, 174 N.E. 345 (commission has continuing jurisdiction
in cases involving fraud); State ex rel. Manns v. Indus. Comm.
(1988), 39 Ohio St.3d 188, 529 N.E.2d 1379 (an error by an
inferior tribunal is a sufficient reason to invoke continuing
jurisdiction); and State ex rel. Saunders v. Metal Container
Corp. (1990), 52 Ohio St.3d 85, 86, 556 N.E.2d 168, 170
(mistake must be "sufficient to invoke the continuing
jurisdiction provisions of R.C. 4123.52"). Today, we expand
the list set forth above and hold that the Industrial
Commission has the authority pursuant to R.C. 4123.52 to modify
a prior order that is clearly a mistake of law. In so holding,
we note that the court of appeals ably recognized that: "* * *
[W]here it is clear that this court would issue a writ of
mandamus ordering the Industrial Commission to vacate, modify
or change a decision or order, the respondent Industrial
Commission neither exceeds its authority or jurisdiction nor
acts unlawfully nor abuses its discretion if it proceeds to
make such correction that this court would clearly have ordered
without awaiting either an action being filed in this court or
a decision from this court if one be filed."
     It is clear that the commission's 1989 order, denying
Sylvia additional benefits, was a mistake of law. The
commission's order was premised on the fact that Sylvia did not
file a claim for additional benefits within two years of
Elmer's death.
     Ohio Adm.Code 4121-3-20 and 4123-3-20, and their
predecessors, required that an application for an award for
violation of a specific safety requirement be filed within two
years of the injury or death resulting from the violation.
Neither provision requires that an application be made within
two years of the claimant's injury and, again, within two years
of the claimant's death. Rather, when read in their entirety,
these rules focus only on the initial
specific-safety-requirement-violation determination. Here, an
application for an award for violation of a specific safety
requirement was filed by Elmer within two years of his injury.
The commission has determined that a violation occurred, that
appellant's violation caused injury, and that injury caused
death. It is apparent that the specific-safety-requirement
violation caused Elmer's death. Hence, to require the widow,
Sylvia, to reestablish that the specific-safety-requirement
violation caused the death of her husband would serve no useful
purpose. Stated otherwise, the widow had nothing more to
prove. The two-year administrative filing requirement was
satisfied when Elmer filed his application. Given this factor,
Sylvia was not required to file for additional benefits within
two years of Elmer's death. Such additional benefits should
have automatically attached to the death benefits paid Sylvia.
     Accordingly, we find that the commission's January 17,
1990 order was correct in all respects. The judgment of the
court of appeals denying appellant's writ is affirmed.
                                    Judgment affirmed.
     Sweeney, H. Brown and Resnick, JJ., concur.
     Moyer, C.J., Holmes and Wright, JJ., dissent.
     Moyer, C.J., dissenting.   In reaching the result that it
does, the majority ignores the rule of law established as
precedent in this court. Accordingly, I respectfully dissent.
     An action in mandamus will lie when a public agency is
under a clear legal duty to perform an official act and there
is no plain and adequate remedy in the ordinary course of law.
State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d
141, 40 O.O.2d 141, 228 N.E.2d 631, paragraph one of the
syllabus. Thus, mandamus is appropriate when the Industrial
Commission makes a decision on a request for an award of
benefits for violation of a specific safety requirement
("VSSR") which the law clearly prohibits. See State ex rel.
Carr v. Indus. Comm. (1935), 130 Ohio St. 185, 4 0.0. 122, 198
N.E. 480. Because in my view the law clearly prohibits the
commission from reconsidering its initial order denying
benefits under the circumstances of this case, I would grant
the writ.
     R.C. 4123.52 provides that the Industrial Commission has
continuing jurisdiction over each case and that it may modify
former orders "as, in its opinion is justified." Just cause
for such a modification includes new and changed conditions,
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; mistake of
fact, State ex rel. Weimer v. Indus. Comm. (1980), 62 Ohio
St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149; fraud, State ex rel.
Kilgore v. Indus. Comm. (1930), 123 Ohio St. 164, 174 N.E. 345;
and mistake by an inferior tribunal, State ex rel. Saunders v.
Metal Container Corp. (1990), 52 Ohio St.3d 85, 556 N.E.2d 168.
     Today, the majority adds to the list mistake of law in a
prior order. Because I would hold that the commission's lack
of power to modify its prior order is jurisdictional in nature,
I would not reach this substantive question.
     The dispositive principle in this case is that the power
of the commission to modify a prior order is limited. The
commission has jurisdiction to reconsider its decision until
the expiration of time in which to initiate a court appeal, or
until the actual institution of an appeal. State ex rel.
Prayner v. Indus. Comm. (1965), 2 Ohio St.2d 120, 31 O.O.2d
192, 206 N.E.2d 911.
     This rule applies even where the court to which appeal is
taken has no jurisdiction to hear the appeal. State ex rel.
Borsuk v. Cleveland (1972), 28 Ohio St.2d 224, 57 O.O.2d 464,
277 N.E.2d 419 (civil service commission has jurisdiction to
reconsider decision until expiration of time for appeal or
until actual appeal taken); Diltz v. Crouch (1962), 173 Ohio
St. 367, 19 O.O.2d 312, 182 N.E.2d 315 (Board of Liquor Control
has continuing jurisdiction until expiration of time for
appeal, or actual appeal).
     In Diltz, the plaintiffs were holders of liquor permits
which the Board of Liquor Control revoked. Plaintiffs appealed
the revocations to the trial court, which affirmed the board's
decision. Thereafter, plaintiffs applied to the board for
reconsideration, and the board modified the revocations to
suspensions. This court held that even though the trial court
lacked jurisdiction to hear the plaintiffs' appeal, the
initiation of that appeal nevertheless terminated the board's
jurisdiction to modify its prior order.
     In Borsuk, relator was a police officer terminated after
his one-year probationary period. Relator requested a hearing
before the city civil service commission, pursuant to which the
commission reinstated him. The city requested a rehearing, and
afterwards appealed the commission's decision to the court of
common pleas. The trial court dismissed the appeal for lack of
subject-matter jurisdiction. The commission then refused to
rehear the matter, stating that it lacked jurisdiction in view
of the prior court appeal. The officer brought a mandamus
action to compel the city to reinstate him pursuant to the
pre-appeal order. The city opposed the mandamus action,
arguing that the commission still had jurisdiction to rehear
the matter and modify its order. This court affirmed the court
of appeals in granting the writ, holding that the commission
lost its jurisdiction to modify its order once the city
appealed. Citing Diltz as controlling, this court expressly
rejected the argument that because the trial court lacked
jurisdiction to hear the city's appeal, the appeal never
divested the commission of its power to rehear the matter.
     It is not in dispute that VSSR determinations by the
commission are not directly appealable to the court of common
pleas. State ex rel. Cincinnati Drum Serv. v. Indus. Comm.
(1990), 52 Ohio St.3d 135, 556 N.E.2d 459. The majority
states, however, that because the commission's order was not
appealable but instead subject only to an action in mandamus,
Sylvia Holik's appeal did not divest the commission of
jurisdiction to reconsider its order. Diltz and Borsuk, supra,
however, hold otherwise. The majority opinion fails to cite
any authority that contradicts the clear holdings of these
cases. Nor does it give any principled reason for
distinguishing them, other than the bald assertion that
reliance on these cases "is misplaced." The majority thus
exempts the Industrial Commission from law that governs other
administrative agencies.
     In fact, the reasoning in Diltz and Borsuk is equally
applicable here. Once the Industrial Commission denied VSSR
benefits to appellee Holik, it retained jurisdiction to modify
its order, for good cause shown, until the expiration of the
time for appeal or the actual institution of appeal. When
Holik instituted her court appeal on July 21, 1989, however,
the commission lost the power to modify its prior order. The
fact that the court of common pleas lacked jurisdiction to hear
Holik's appeal from an adverse decision of the commission on
her entitlement to VSSR benefits does not change this result.
The trial court did have jurisdiction to make the threshold
determination of whether to allow the action to proceed. See
State ex rel. Dickison v. Court of Common Pleas (1971), 28 Ohio
St.2d 179, 57 O.O.2d 411, 277 N.E.2d 210.
     The majority chooses to ignore this clear and
well-established law, asserting instead that because the filing
of an R.C. 4123.519 appeal is a "futile act," it could not
divest the commission of the power to reconsider. Although
such an appeal may be futile, it is not without consequences.
While it is unfortunate that appellee made the decision to file
a futile appeal to the court of common pleas, apparently
without the awareness of these consequences, it is not the
function of this court to mitigate the errors of litigants or
their counsel by ignoring applicable law. The appeals taken
from administrative bodies in Diltz and Borsuk were equally
futile acts, yet they ended the jurisdiction of the agency to
reconsider. The same result should occur here.
     I would hold that the Industrial Commission loses
jurisdiction to reconsider its own order once the party
requesting reconsideration of the order has appealed it to the
court of common pleas.
     To achieve the result it does, the majority overlooks the
principle that true fairness in the law requires its consistent
application and respect for binding precedent. Because this
court's precedent contradicts the majority's decision in this
case, I respectfully dissent.
     Holmes and Wright, JJ., concur in the foregoing dissenting
opinion.
