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State ex rel. Giant Eagle Inc. v. Ohio Industrial Commission

Court of Appeals of Ohio, Tenth District

August 31, 2017

The State ex rel. Giant Eagle, Inc., Relator,
v.
Ohio Industrial Commission and Henry Brown, Respondents.

         IN MANDAMUS

          On brief: Matty, Henrikson, & Greve, Kirk R. Henrikson, Jesse P. Kanner, and Samuel T. O'Leary, for relator.

          On brief: Michael DeWine, Attorney General, and Natalie J. Tackett, for respondent Industrial Commission of Ohio.

          On brief: Nicholas C. DeGennaro, for respondent Henry Brown.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Relator, Giant Eagle, Inc., filed this original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("ICO"), to vacate its November 16, 2015 order granting respondent, Henry Brown, a lump sum advancement from his award of permanent total disability and to enter an order denying the lump sum advancement.

         {¶ 2} The court referred this matter to a magistrate pursuant to Civ.R. 53(C) and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, and recommended this court issue the requested writ of mandamus ordering ICO to vacate the November 16, 2015 order and enter an order that determines whether "special circumstances" exist to support the application for a lump sum advancement under R.C. 4123.64 and Ohio Adm.Code 4123-3-37. No objections to the magistrate's decision have been filed.

         {¶ 3} Finding no error of law or other defect on the face of the magistrate's decision, this court adopts the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's recommendation, we grant the requested writ of mandamus and order the ICO to vacate the November 16, 2015 order and enter an order that determines whether "special circumstances" exist to support the application for a lump sum advancement under R.C. 4123.64 and Ohio Adm.Code 4123-3-37.

         Writ of mandamus granted.

          BROWN and BRUNNER, JJ., concur.

         APPENDIX

         Rendered on April 26, 2017

         Matty, Henrikson, & Greve, Kirk R. Henrikson, Jesse P. Kanner, and Samuel T. O'Leary, for relator.

         Michael DeWine, Attorney General, and Natalie J. Tackett, for respondent Industrial Commission of Ohio.

         Nicholas C. DeGennaro, for respondent Henry Brown.

         MAGISTRATE'S DECISION

          MAGISTRATE, KENNETH W. MACKE

         {¶ 4} In this original action, relator, Giant Eagle, Inc., requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate the November 16, 2015 order of its staff hearing officer ("SHO") granting to respondent, Henry Brown, a lump sum advancement from his award of permanent total disability ("PTD") compensation, and to enter an order denying the lump sum advancement pursuant to R.C. 4123.64 and Ohio Adm.Code 4123-3-37.

          Findings of Fact:

         {¶ 5} 1. On November 22, 2006, respondent, Henry Brown ("claimant") injured his cervical and lumbar areas while employed as a truck driver for relator, a self-insured employer under Ohio's workers' compensation laws. On that date, claimant was involved in a motor vehicle accident.

         {¶ 6} 2. The industrial claim (No. 06-886218) is allowed for:

Cervical sprain/strain; lumbar strain/sprain; right sacroiliac strain; post-traumatic stress disorder; major ...

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