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State ex rel. Alhamarshah v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

June 27, 2013

State of Ohio ex rel. Mustafa Alhamarshah, Relator,
v.
Industrial Commission of Ohio and Mohamed Salem DBA Ballmohd, LLC, Respondents.

IN MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION

Malek & Malek, and Douglas C. Malek, for relator.

Michael DeWine, Attorney General, and Stephen D. Plymale, for respondent Industrial Commission of Ohio.

Thomas & Company, LPA, and Christopher P. Aemisegger, for respondent Mohamed Salem.

DECISION

TYACK, J.

{¶ 1} Mustafa Alhamarshah filed this action in mandamus, seeking a writ to compel the Industrial Commission of Ohio ("commission") to vacate its order which allowed an appeal by Mohamed Salem with respect to Alhamarshah's right to participate in the workers' compensation system.

{¶ 2} In accord with Loc.R. 13(M), the case was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision, appended hereto, which includes detailed findings of fact and conclusions of law. The magistrate's decision includes a recommendation that we deny the request for a writ at this time.

{¶ 3} Counsel for Alhamarshah has filed objections to the magistrate's decision. The case is now before the court for review.

{¶ 4} Alhamarshah was injured when he was involved in a tree trimming incident. Mohamed Salem DBA Ballmohd, LCC was paying for the tree trimming to be performed. The critical question as to Alhamarshah's right to participate at this point is whether Alhamarshah was an employee of Mohamed Salem or whether Alhamarshah was an independent contractor operating his own business.

{¶ 5} The magistrate found that this mandamus action was rendered premature by the pendency of an appeal on the right to participate then pending in the common pleas court. Since the magistrate rendered his magistrate's decision, counsel for Alhamarshah has dismissed the action in the common pleas court, subject to the action being refiled within one year.

{¶ 6} We therefore sustain the objections in part. To the extent that denial of the writ was conditioned on the then pending common pleas court case, that condition does not exist at the present time. The condition could be in existence again later.

{¶ 7} We now turn to the merits of the case, based upon the facts set forth in the findings of fact in the magistrate's decision. We note that the commission has broad discretion in determining issues such as when a party has substantially complied with the statutory requirements for the party when pursuing an administrative appeal. We do not find that the commission abused its discretion in allowing Mohamed Salem, the alleged employer of Alhamarshah, to appeal in this case based upon the facts as set forth in the magistrate's decision and as found by the commission itself. For that reason, we deny the request for a writ of mandamus to overturn the commission's ruling that the alleged employer could appeal.

{¶ 8} We adopt the findings of fact in the magistrate's decision, but not the conclusions of law. Based upon the findings of fact and our own legal analysis, we deny the request for a writ of mandamus.

Objections sustained in part; Writ of mandamus denied.

BROWN and SADLER, JJ., concur.

APPENDIX

Rendered on December 31, 2012

MAGISTRATE ' S DECISION

IN MANDAMUS

{¶ 9} In this original action, relator, Mustafa Alhamarshah, requests a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its March 22, 2011 order finding that respondent, Mohamed Salem DBA Ballmohd, LLC ("Salem" or "Ballmohd LLC"), substantially complied with R.C. 4123.511(F) such that it must be held that Salem administratively appealed a January 7, 2010 order of the Ohio Bureau of Workers' Compensation ("bureau") that allowed relator's industrial claim, and to enter an order ...


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