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State ex rel. Young v. The Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

November 2, 2017

The State ex rel. Kathy S. Young, Relator,
v.
The Industrial Commission of Ohio et al., Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

          Steven G. Thomakos, for relator.

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

          Eastman & Smith LTD., Mark A. Shaw and Melissa A. Ebel, for respondent Craig Transportation Co.

          DECISION

          TYACK, P.J.

         {¶ 1} Kathy S. Young filed this action in mandamus seeking a writ to compel the Industrial Commission of Ohio ("commission") to grant her the right to participate in the Ohio Bureau of Workers' Compensation ("BWC") system for an injury she sustained in Illinois while working for Craig Transportation Co. ("Craig").

         {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, 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 contains detailed findings of fact and conclusions of law. The magistrate's decision includes a recommendation that we not issue the requested writ.

         {¶ 3} The history of this claim or set of claims is fully described in the magistrate's decision. Young and her counsel have been caught in the middle of an ongoing dispute over when an injured worker who has been denied the right to participate in the workers' compensation system in Ohio should file an appeal in a court of common pleas and when the injured worker should pursue a special writ, usually in the Tenth District Court of Appeals.

         {¶ 4} Counsel for Young chose to pursue an appeal to common pleas court. The common pleas court found that the issue was the right to participate and the appeal was appropriate. The employer and BWC disagreed and pursued a further appeal to the Sixth District Court of Appeals which reversed the trial court and indicated that Young and her counsel should have pursued an action in mandamus. Our magistrate has indicated her belief that the Sixth District Court of Appeals was just plain wrong, despite the Sixth District's clear reliance on the words of the Supreme Court of Ohio in State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276 (2000). The Sixth District's interpretation of Liposchak means that some right to participate cases are to be appealed to common pleas court and some are not.

         {¶ 5} While our magistrate's handling of the issues would be correct and appropriate in most cases involving the right to participate, under the unique facts of this case, the only remedy available to Young and her counsel is a special writ. Her pursuit of the usual remedy has been refused by the Sixth District Court of Appeals. That refusal has not been overturned by the Supreme Court of Ohio. Given that litigation history, she has no remedy at law except via a special writ, specifically a writ of mandamus.

         {¶ 6} Our magistrate has not addressed the other issues in this case, so therefore the case must be returned to the magistrate to address the remaining issues.

         {¶ 7} The objections on behalf of Kathy Young are sustained.

         Objections sustained; case returned to magistrate to address remaining issues.

          BROWN, J., concurs.

          LUPER SCHUSTER, J, concurs in judgment only.

         APPENDIX

         Rendered on July 28, 2017

         IN MANDAMUS

         MAGISTRATE'S DECISION

          STEPHANIE BISCA, MAGISTRATE JUDGE.

         {¶ 8} Relator, Kathy S. Young, has filed this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to grant her the right to participate in the Ohio Bureau of Workers' Compensation ("BWC") system for an injury she sustained in the state of Illinois arising from her employment with respondent, Craig Transportation, Co. ("Craig"), and for which she already received compensation and medical expense payments under the Indiana workers' compensation system.

         Findings of Fact:

         {¶ 9} 1. In March 2012, relator was employed by Craig as a long-distance truck driver.

         {¶ 10} 2. At the time she was hired, relator signed a document, ...


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