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State of Ohio Ex Rel. v. Garfield-Indecon Electrical Service and Industrial Commission of Ohio

November 8, 2011

STATE OF OHIO EX REL.
JOHN EVANS, RELATOR,
v.
GARFIELD-INDECON ELECTRICAL SERVICE AND INDUSTRIAL COMMISSION OF OHIO, RESPONDENTS.



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

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

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION

{¶1} Relator, John Evans, commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its order denying his June 25, 2008 motion for R.C. 4123.56(B) wage loss compensation and to enter an order granting said compensation.

I. Procedural History

{¶2} Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued the appended decision, including findings of fact and conclusions of law. According to the magistrate's findings of fact, relator on March 30, 2004 completed and signed a form C-140 requesting wage loss compensation, but he did not indicate whether he was seeking working or non-working wage loss compensation, or a combination of both. On June 8, 2004, the bureau granted wage loss compensation beginning November 24, 2003, pursuant to which relator received 200 weeks of working wage loss compensation.

{¶3} Relator on June 5, 2008 moved for R.C. 4123.56(B) wage loss compensation to begin May 5, 2008. The bureau referred the matter to the commission for adjudication, noting its request was based on "the fact that working wage loss has been paid in full for 200 weeks" from December 1, 2003 to May 4, 2008. (Magistrate's Decision, ¶20.) Although the request also acknowledged relator participated in a rehabilitation plan that potentially made him eligible for living maintenance wage loss, the request further noted the application was not filed within the requisite 60 days of rehabilitation closure.

{¶4} Both the district hearing officer and the staff hearing officer denied the request for wage loss compensation, concluding relator had received the maximum in working wage loss compensation pursuant to R.C. 4123.56 and could not receive any additional weeks of working wage loss compensation. As the magistrate explained, a claimant, prior to the June 30, 2006 amendment of R.C. 4123.56(B), could receive 200 weeks of living maintenance wage loss compensation under R.C. 4121.67 followed by 200 weeks of R.C. 4123.56(B) wage loss compensation. As a result, had relator received the 200 weeks of compensation under R.C. 4121.67, he would remain eligible for 200 weeks of R.C. 4123.56(B) wage loss compensation as requested in his June 25, 2008 motion. The reverse, however, was not true.

{¶5} Faced with those circumstances, relator sought in his mandamus action to have the already received compensation reclassified as living maintenance wage loss. The magistrate concluded relator could not obtain a writ to change the compensation previously received to living maintenance wage loss under R.C. 4121.67, if for no other reason than his failure to exhaust administrative remedies by appealing from the award of wage loss compensation in 2004.

{¶6} Accordingly, the magistrate determined the requested writ should be denied.

II. Objection

{¶7} In his single objection, relator does not contest the magistrate's factual findings but disputes the magistrate's conclusions that relator's failure to appeal from the June 8, 2004 order of the bureau granting him wage loss compensation precludes mandamus relief. Relator argues he had no reason to appeal the 2004 decision that granted him compensation because, he asserts, "the classification of the compensation is merely an administrative function. The Bureau has the authority to correct a clerical error whenever it is brought to the attention of the Bureau." (Objection, 1.)

{¶8} Relator's objection is unpersuasive. Were relator seeking living maintenance wage loss compensation in 2004, he should have administratively appealed from the determination that instead awarded him wage loss compensation, as the difference between living maintenance wage loss compensation and wage loss compensation is not a clerical error; each represents a different form of compensation with different requirements. The magistrate properly concluded relator cannot now seek mandamus relief to change the 2004 award of wage loss compensation to living maintenance wage loss where he failed to administratively appeal from the 2004 award and, as a result, failed to exhaust his administrative remedies. Because an adequate remedy at law existed, albeit not pursued, mandamus relief is inappropriate. Relator's objection is overruled.

III. Disposition

{¶9} Following independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, we deny the requested writ of mandamus.

Objection overruled; writ denied.

KLATT and SADLER, JJ., concur.

APPENDIX

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

State of Ohio ex rel. John Evans, Relator, v. Garfield-Indecon Electrical Service and Industrial Commission of Ohio, Respondents.

No. 10AP-700

(REGULAR CALENDAR)

MAGISTRATE ' S DECISION

Rendered on August 4, 2011

O'Connor, Acciani & Levy, and Ronald T. Bella, for relator. Michael DeWine, Attorney General, and Andrew J. Alatis, for ...


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