
    The State, ex rel. Beatrice Foods Co., v. Industrial Commission of Ohio et al.
    
      (No. 84AP-567
    Decided October 29, 1985.)
    
      Jack L. Johnson, for relator.
    
      Anthony J. Celebrezze, Jr., attorney general, and Gerald H. Waterman, for respondent Industrial Commission.
    
      Charles R. Miller, fro se.
    
   Strausbaugh, J.

This is an original action in mandamus filed in this court by relator requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio, to vacate an order finding that medical expenses are not compensated as contemplated by R.C. 4123.63 and to issue an order so finding, to continue to reimburse relator for fifty percent of all expenditures made in this claim, including medical expenses, and to prevent recoupment from relator of monies previously reimbursed to relator for medical expenses paid to respondent-claimant. The court referred this action to a referee, pursuant to Civ. R. 53(C) and Loc. R. 11, Section 13, of the Tenth District Court of Appeals, who rendered a report and recommendation on March 5, 1985, including findings of fact and conclusions of law.

Relator and respondent Industrial Commission both filed objections to the report and recommendation of the referee of the court of appeals, which recommended that this court grant relator’s request for a writ of mandamus vacating an order finding that relator had been overpaid $18,005.35, but denying relator’s request for future medical reimbursement.

The facts as found by the referee are not disputed. Respondent Charles R. Miller was injured on March 13, 1975 during the course of, and arising out of, his employment with self-insured relator. Respondent’s claim for compensation was allowed by the Industrial Commission and benefits were paid to respondent-claimant. Sometime in the latter part of August 1979, relator filed an application for handicapped reimbursement pursuant to R.C. 4123.63 requesting reimbursement concerning service-connected disabilities. On February 14, 1980, a hearing was held by a staff hearing officer of the Industrial Commission who issued an order of February 29, 1980 stating, in pertinent part, that:

“This claim came on for hearing before Staff Hearing Officer, Forrest Thaxton, who finds that notices were sent to the claimant, the employer, their representatives and the Administrator of the Bureau of Workers’ Compensation not less than 14 days prior to this date.
“It is further the finding of the Staff Hearing Officer that 50% of the claim be charged to the Surplus Fund for service-connected disability pursuant to 4123.63 of the Revised Code.”

As a result of the hearing officer’s order, relator was subsequently reimbursed for fifty percent of lost time, other compensation, and medical benefits paid to respondent-claimant as a result of respondent’s allowed claim. Reimbursement to relator of medical expenses alone exceeded $18,000.

On June 25,1983, the Administrator of the Ohio Bureau of Workers’ Compensation issued an order stating, in pertinent part, that:

“(Employer is overpaid $18,005.35)
“Section 4123.63 does not provide for reimbursement of any medical services.
“On hearing[s] of 4-25-80, 7-9-81, 11-16-81 and 8-24-82, $18,005.35 was paid to the employer for reimbursement of medical services they [sic] paid. Reimbursement for medical services was paid in error.
“Employer, Beatrice Foods Company is therefore overpaid $18,005.35.
“The Bureau therefore orders that the proper procedure be taken to collect above overpayment in order that Surplus Fund Section 4123.343 may be credited.”

On June 13, 1983, relator objected to the administrator’s order and requested a hearing. A subsequent hearing was held before the Industrial Commission which issued an order on April 18, 1984, stating that:

“Pursuant to the provisions of O.R.C. Section 4123.63 (effective 3-18-69), it is the decision of the Industrial Commission to construe the employer’s 6-13-83 letter (date-stamped in file on 6-14-83) as a motion requesting the reimbursement of medical benefits paid under the instant claim.
“It is the further decision of the Industrial Commission to dismiss the motion for the reasons that monies expended for the payment of medical benefits are not ‘compensation’ and, as such, are not amounts properly subject to reimbursement under the statute.
“It is expressly found that the employer was granted a 50% service-connected injury reimbursement on 2-14-80.
“The claim file is referred to SHDDH for docketing before a D.H.O. on the following issues:
“1) the employer’s 1-10-79 C086 [sic] motion (additional allowance); and,
“2) the employer’s 12-10-82 C-86 motion (extent of disability).”

Relator instituted the instant action on June 15,1984 contending that the Industrial Commission abused its discretion in finding that relator was not entitled to reimbursement for medical expenses. The parties have filed an agreed stipulation of pertinent portions of the Industrial Commission claim file as the evidence to be considered in this case. Also stipulated is the fact that no party appealed the district hearing officer’s order dated February 14, 1980.

The referee determined that the term “compensation” as used in R.C. 4123.63 did not include medical benefits and therefore held that relator was not entitled to any future reimbursement of medical expenses. The referee also held that the district hearing officer’s order permitting a charge-off to the Surplus Fund was a final order. The ultimate effect of this holding was to allow relator a $18,005.35 reimbursement for past medical expenses, but to deny further reimbursement from June 25, 1983.

Relator objects to that part of the referee’s report which denied reimbursement of fifty percent of future awards.

Respondent objects to that part of the report which refused the Industrial Commission’s order to relator to reimburse the sum of $18,005.35 to the commission.

Relator argues that the term “compensation” as used in R.C. 4123.63 includes medical benefits, in part because of the state’s policy of encouraging employers to employ and retain veterans with service-connected disabilities. Relator urges that employers would not employ such veterans unless they expected to be reimbursed for oftentimes substantial medical expenses incurred by an employee as the result of an industrial injury. Respondent takes the opposite position.

Each side finds statutory support for its respective interpretation of compensation as contemplated by R.C. 4123.63.

We find that the term “compensation” as used in R.C. 4123.63 contemplates the payment of medical benefits. The state has a policy of encouraging employers to hire veterans with service-connected injuries, expressed in a specific statutory provision. In this sense, R.C. 4123.63 is similar to R.C. 4123.343, the statutory provision designed to encourage employers to hire the handicapped, which provides for the cost of the disability attributable to the handicap to be charged to the Surplus Fund. While it is true that R.C. 4123.343 mentions both compensation and benefits, it is the policy which is the primary consideration. As this court has previously noted, the term “benefits” can constitute compensation depending on the wording and policy of the statute. See State, ex rel. General Motors Corp., v. Indus. Comm. (June 15, 1978), No. 77AP-889, unreported.

It would appear to be the policy of the legislature by the enactment of R.C. 4123.63 to encourage the hiring by employers of veterans with service-connected injuries. There would exist little incentive for employers to hire veterans with a service-connected injury if an employer knows in advance that it cannot receive any reimbursement for medical benefits, which may arise at a future date.

Based upon the foregoing reasons, we find that respondent Industrial Commission is not entitled to any reimbursement of amounts already expended by the Surplus Fund. These payments were properly made in accordance with the February 29, 1980 determination of the staff hearing officer that fifty percent of the relator’s claim be charged to the Surplus Fund. Therefore, respondent’s objections to the referee’s report are overruled.

We sustain relator’s objections to the report of the referee and grant the issuance of a writ of mandamus ordering respondent Industrial Commission to vacate its orders of June 25, 1983 and April 18, 1984 seeking reimbursement and ordering the commission to continue the reimbursement of fifty percent of future medical benefits.

Respondent’s objections overruled; relator’s objections sustained; writ granted.

McCormac and Moyer, JJ., concur.  