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State Ex Rel. Matthew J. Goedel v. the Industrial Commission of Ohio and

November 3, 2011

STATE EX REL. MATTHEW J. GOEDEL, RELATOR,
v.
THE INDUSTRIAL COMMISSION OF OHIO AND
HAMMOND INDUSTRIAL CONSTRUCTION, INC., RESPONDENTS.



The opinion of the court was delivered by: Brown, J.

Cite as State ex rel. Goedel v. Indus. Comm.,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION

{¶1} Relator, Matthew J. Goedel, has filed an original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying his application for temporary total disability ("TTD") compensation, and to order the commission to issue a new order finding that he is entitled to such compensation.

{¶2} Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision which is appended to this decision, including findings of fact and conclusions of law, recommending that this court deny relator's request for a writ of mandamus. Relator has filed an objection to the magistrate's decision.

{¶3} In his objection, relator raises several points. Relator first contends that the C-84 he filed on October 19, 2009, was filed one month after the district hearing officer ("DHO") had additionally allowed the claim for all of the conditions that were the basis of the period of disability from March 5 through April 8, 2007; thus, he could not have previously filed the C-84 in question prior to the claim being additionally allowed because the request would be based on non-allowed conditions. Relator claims that, based upon the magistrate's conclusion, attorneys would have to submit C-84s even though they know the conditions that were the basis for the requested period of disability have not been formally recognized in the claim.

{¶4} We disagree with relator's contention and agree with the commission's view. The circumstances in which relator finds himself are of his own making. Dr. Mark Weiner stated in an April 2007 letter that he believed relator's neck conditions and surgery were related to his industrial injury. Despite Dr. Weiner's report in April 2007, relator waited to apply for additional conditions until July 20, 2009, which was beyond the two-year period provided in R.C. 4123.52. Although relator argues that he could not apply for TTD until the commission allowed his additional conditions on September 11, 2009, he could have applied for additional conditions within the two-year look-back period in R.C. 4123.52. The Supreme Court of Ohio, in State ex rel. Gen. Refractories Co. v. Indus. Comm. (1989), 44 Ohio St.3d 82, 85, found that the filing of an application for additional conditions within two years of the period for which TTD is requested is sufficient to comply with the time limits imposed by R.C. 4123.52. Although relator applied for the same additional conditions on January 29, 2009, he withdrew the application, and he cites no authority for the proposition that his current application should somehow "relate back" to his initial, withdrawn application, and we find none. Likewise, we find no legal support for relator's contention that his application for TTD should relate back to January 29, 2009, because he entered Dr. Weiner's records "into the BWC system" when he filed his January 29, 2009 application for additional conditions, and the commission should have been on notice of his future claim for TTD. The exception found in Gen. Refractories, which allows applications for additional conditions to be construed as requests for compensation for purposes of R.C. 4123.52, does not include withdrawn applications for additional conditions. For these reasons, we find the magistrate did not err in his decision, and we overrule relator's objection.

{¶5} After an examination of the magistrate's decision, an independent review of the evidence pursuant to Civ.R. 53, and due consideration of relator's objection, we overrule the objection. Accordingly, we adopt the magistrate's decision as our own with regard to the findings of fact and conclusions of law, and we deny relator's request for a writ of mandamus.

Objection overruled; writ of mandamus denied.

KLATT and DORRIAN, JJ., concur.

[Cite as State ex rel. Goedel v. Indus. Comm., 2011-Ohio-5657.]

APPENDIX

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

State ex rel. Matthew J. Goedel, Relator, v. The Industrial Commission of Ohio and Hammond Industrial Construction, Inc., Respondents.

No. 10AP-704

(REGULAR ...


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