The State ex rel. Kevin A. Dailey, Relator,
Industrial Commission of Ohio et al., Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Knisley Law Offices, and Kurt A. Knisley, for relator.
Yost, Attorney General, and Natalie J. Tackett, for
respondent Industrial Commission of Ohio.
Yost, Attorney General, and Michael J. Roche, for respondent
Hocking Technical College.
1} For all the procedural wrangling in this case,
the matter boils down to something pretty simple. We're
not going to grant a writ of mandamus ordering the Industrial
Commission of Ohio to hear and rule on something that it
already has decided on its own, and we're not going to
grant a writ of mandamus against the commission requiring it
to rule one way when its decision going the other could
be-and in fact is-on direct appeal to a
Common Pleas Court of competent jurisdiction.
2} The matter has taken some twists and turns, but a
rough summary of where things now stand essentially disposes
of the requested extraordinary writ. Relator Kevin Dailey has
sought to be allowed to participate in the workers'
compensation fund for an injury claim of "myocardial
infarction" and for "coronary artery disease."
The commission has allowed his claim for the myocardial
infarction. The commission has denied his request for the
"Additional Allowance" of coronary artery disease.
See, e.g., Ev. Stip. 37 (Staff Hearing Officer Order
mailed June 7, 2016), 38 (commission refuses administrative
appeal, June 28, 2016). Mr. Dailey has appealed that
condition denial to the Athens County Court of Common Pleas,
and has filed a complaint and jury demand there asking that
"he be permitted to participate in the benefits of the
State Insurance Fund for the additional condition of coronary
artery disease * * *." Ev. Stip. 46 ("Re-Filed
Complaint and Jury Demand time-stamped 1/18/2017"); Ev.
Stip. 39 ("Notice of Appeal Under Section
4123.512," reciting that appeal is from commission's
06/28/2016 refusal of his administrative appeal from the
Staff Hearing Officer's denial of his motion to have
coronary artery disease as an additional allowed condition).
3} We provide a truncated version of the procedural
history of these claims below. There should be no suspense,
though, as to our role here: Because the Commission has ruled
on the coronary artery disease claim, and because Mr. Dailey
has (and is pursuing) an adequate remedy at law under R.C.
4123.512 by which to address his disagreement with that
ruling, we will dismiss the petition for the requested writ.
4} On September 22, 2017, Kevin A. Dailey filed his
petition asking this court for a writ of mandamus directing
the commission either to reinstate a Staff Hearing
Officer's order from 2014 allowing his worker's
compensation claim for coronary artery disease, or to hold a
new hearing on that claim in light of the commission's
"duty to consider the merits of Relator's request to
participate in the State Fund for coronary artery
disease." Petition at ¶ 25 and prayer. On February
14, 2019, the magistrate issued her decision recommending
that we deny the writ. Mr. Dailey has filed objections to the
magistrate's decision, and we consider those objections
after an "independent review" pursuant to Civil
5} Mr. Dailey suffered a cardiac event while lifting
pallets during his employment as a firefighting instructor at
Hocking Technical College. An April 2, 2014 Staff Hearing
Officer's order allowed Mr. Dailey's occupational
claim for coronary artery disease and myocardial infarction.
Hocking Technical College filed a Request for Reconsideration
and, on August 13, 2014, the commission vacated the April 2,
2014 order after concluding that it contained clear mistakes
of law. The commission's order did allow the claim for
myocardial infarction as an injury claim, but did not rule
directly on coronary artery disease as an allowed or
6} In due course, Mr. Dailey filed a motion
requesting that the commission "amend his claim, either
by direct causation or substantial aggravation of a
pre-existing condition, to include * * * CORONARY ARTERY
DISEASE," based on a physician's report attached to
the motion. Stip. Ev. 32 (Dec. 3, 2015 Mot). A District
Hearing Officer denied the motion. Stip. Ev. 34 (Feb. 24,
2016 Order). Mr. Dailey appealed, and a Staff Hearing Officer
issued an order again denying the motion, noting that Mr.
Dailey's myocardial infarction claim had been
"specifically allowed as an injury claim" and
finding that "additionally allowing the claim for the
condition Coronary Artery Disease is inconsistent with a
claim recognized for an injury." Stip. Ev. 37 (May 31,
2016 Order). The commission refused Mr. Dailey's internal
appeal of that order and informed him of his right to appeal
under R.C. 4123.512 to a court of common pleas. Stip. Ev. 38
(June 24, 2016 Order).
7} On August 26, 2016, Mr. Dailey filed a complaint
in the Athens County Court of Common Pleas appealing the
commission's June 24, 2016 order. He later voluntarily
dismissed the complaint under Civ.R. 41(A), but the
commission found nonetheless that it lacked jurisdiction over
his subsequent request for reconsideration of the denial of
his claim for coronary artery disease because jurisdiction
over that issue remained with the trial court. Stip. Ev. 43
(commission order of November 17, 2016). Mr. Dailey then
refiled his common pleas case on January 18, 2017. Stip. Ev.
46 ("Re-Filed Complaint and Jury Demand"). Some
eight months later, he filed his petition seeking a writ of
mandamus from this court, and in June of 2018 he advised the
magistrate here that the "Athens County Court of Common
Pleas has stayed proceedings pending the outcome of the
present case." Relator's Brief at 9.
8} Mr. Dailey objects to what he views as
"inappropriate" fact-finding by the Magistrate. He
further objects to the magistrate's conclusions: that the
commission properly exercised jurisdiction over and ruled
appropriately in vacating the Staff Hearing Officer's
August 13, 2014 order that had allowed the claim of coronary
artery disease in addition to the myocardial infarction
injury claim; that the commission was not required to state
expressly in 2014 that it was denying his claim for coronary
artery disease; and that Mr. Dailey was required to appeal
the commission's August 13, 2014 order to a court of
common pleas under R.C. 4123.512. Feb. 22, 2019 Relator's
Objection to Magistrate's Decision at 2, 5-10.
9} A party seeking a writ of mandamus "must
establish a clear legal right to the relief requested, a
clear legal duty on the part of the commission to provide the
relief, and the lack of an adequate remedy in the ordinary
course of the law." State ex rel. Manpower of
Dayton, Inc. v. Indus. Comm. of Ohio, 147 Ohio St.3d
360, 2016-Ohio-7741, ¶ 9 (citation omitted). While the
magistrate's decision focused on the first two
requirements, the lack of an adequate remedy at law "is
a threshold question," as it "is a necessary
prerequisite for relief in mandamus." State ex rel.
Alhamarshah v. Indus. Comm. of Ohio, 142 Ohio St.3d 524,
2015-Ohio-1357, ¶ 11, citing State ex rel.
Consolidation Coal. Co. v. Indus. Comm. of Ohio, 18 Ohio
St.3d 281, 284 (1985) (citation omitted). For the following
reasons, we conclude there is an adequate remedy at law for
Mr. Dailey's claim, and we must therefore deny issuance
of the writ.
10} R.C. 4123.512(A) provides a claimant with the
right to "appeal an order of the industrial commission
made under division (E) of section 4123.511 of the Revised
Code in any injury or occupational disease case, other than a
decision as to the extent of disability to the court of
common pleas of the county" where the injury occurred or
the claimant is employed. The same right of appeal extends to
the order of a Staff Hearing Officer that the commission
declines to review. Id. In such an appeal,
"[t]he court, or the jury under the instructions of the
court, if a jury is demanded, shall determine the right
of the claimant to participate or to continue to
participate in the fund upon the evidence adduced at
the hearing of the action." R.C. 4123.512(D) (emphasis
11} In his petition, Mr. Dailey alleges that the
commission abused its discretion by "neglecting to
consider the merits of coronary artery disease" in its
August 13, 2014 order as a basis for his claim. Petition and
Complaint for Writ of Mandamus at ¶ 24. He emphasizes
his position that the commission must "consider the
merits of [his] request to participate in the State Fund for
coronary artery disease." Id. at ¶ 25. But
notwithstanding what he sees as the deficiencies of the 2014
outcome, he does also acknowledge that "the Staff
Hearing Officer, in an order dated 6/1/2016, affirmed the
District Hearing Officer's decision denying the
additional allowance of coronary artery disease * * *,"
and that the commission then "refused [his] appeal [to
the commission] and the additional allowance of coronary
artery disease remains disallowed." Id. at
¶ 14, 15.
12} It is precisely because the commission has
already determined the (dis)allowance of his coronary artery
disease claim that Mr. Dailey has been able to appeal to the
common pleas court. R.C. 4123.512(D) provides Mr. Dailey the
opportunity to appeal and have a judge or a jury determine
his right to participate in the fund for coronary artery
disease; that course is available to him, and what's
more, he has taken it.
13} Mr. Dailey's petition suggests that his
focus is on commission (non)decisions of 2014, but the
commission made determinations after that. He apparently is
concerned that his pending R.C. 4123.512 appeal may be
dismissed on grounds of res judicata because he did not so
appeal the August 13, 2014 order allowing his claim for
myocardial infarction; he says his employer has argued in
court that he "forfeited his initial .512 appeal for the
full commission order that was wholly silent as to coronary
artery disease." Feb. 22, 2019 Relator's Objection
at 12. He objects to the magistrate's conclusion that he
was required to appeal the August 13, 2014 order in order to
obtain a remedy for his coronary artery disease claim.
Id. at 10.
14} We disagree with the magistrate's conclusion
on this issue. Mr. Dailey could not have brought a claim to
participate in the fund for coronary artery disease under
R.C. 4123.512 by appealing from an order that did not mention
the condition while allowing another claim. "The
claimant in an R.C. 4123.512 appeal may seek to participate
in the Workers' Compensation Fund only for those
conditions that were addressed in the administrative order
from which the appeal is taken." Ward v. Kroger
Co., 106 Ohio St.3d 35, 2005-Ohio-3560, syllabus.
Because an R.C. 4123.512 appeal from the August 13, 2014
order that failed to mention coronary artery disease would
have been vulnerable to dismissal under Ward, we
sustain that objection to the magistrate's decision.
15} Ward also demonstrates, though, why Mr.
Dailey could appeal the later explicit denial of his coronary
artery disease claim to the Athens County Court of Common
Pleas under R.C. 4123.512. The commission specifically
mentioned the condition on the face of its June 24, 2016
order refusing to hear the appeal of the Staff Hearing
Officer's denial, and Mr. Dailey has cited that order as
the basis for his pending R.C. 4123.512 appeal.
16} Mr. Dailey is not without a remedy at law. He
asserts to us that "the Athens County Court of Common
Pleas does not have subject matter jurisdiction to hear [his]
appeal for coronary artery disease" under R.C. 4123.512
because the Staff Hearing Officer refused his coronary artery
disease claim on the grounds that it could not have been
caused by the allowed injury of myocardial infarction. Brief
of Relator at 25. But a concern that he somehow may be
precluded from presenting an occupational disease claim by
the language of the Staff Hearing Officer's order does
not support a writ of mandamus. The "de novo nature of
an R.C. 4123.512 appeal proceeding puts at issue all elements
of a claimant's right to participate in the workers'
compensation fund." Bennett v. Admr., Ohio Bur. of
Workers' Comp., 134 Ohio St.3d 329, 2012-Ohio-5639,
¶ 2. An R.C. 4123.512 appeal "necessitates a new
trial, without reference to the administrative claim file or
consideration of the results of the administrative
hearings." Robinson v. B.O.C. Group, 81 Ohio
St.3d 361, 368 (1998) (superseded by statute on another
17} In Bennett, the Supreme Court of Ohio
noted that in Robinson, it had "fully
endorsed" the following description of an R.C. 4123.512
appeal, as stated by this court in Marcum v. Barry,
76 Ohio App.3d 536 (10th Dist.1991):
"' "Although labeled an appeal and commenced
initially by the filing of a notice of appeal, the action in
the common pleas court under R.C. 4123.519 [now 4123.512]
seeking a redetermination of a decision of the Industrial
Commission is not a traditional error proceeding[ ] * * *.
R.C. 4123.519 [now 4123.512] contemplates not only a full and
complete de novo determination of both facts and law
but also contemplates that such determination shall be
predicated not upon the evidence adduced before the
Industrial Commission but, instead, upon evidence adduced
before the common pleas court as in any civil action, which
may involve a jury trial if demanded. The proceedings are
de novo both in the sense of receipt of evidence and
determination. The common pleas court, or the jury if it be
the factual determiner, makes the determination de
novo without consideration of, and without deference to,
the decision of the Industrial Commission. R.C. 4123.519 [now
4123.512] contemplates a full de novo hearing and
Bennett at ¶ 20, quoting Robinson at
368, quoting Marcum. See also, e.g., Clendenin v. Girl
Scouts of W. Ohio, 150 Ohio St.3d 300, 304,
2017-Ohio-2830 (right to participate "appeals to the
common pleas court under R.C. 4123.512 are subject to de novo
review") (citation omitted).
18} Because (at least from what has been presented
to us) we see no bar to the common pleas court's
authority to determine whether or not Mr. Dailey has a right
to participate in the fund, we find that he has an adequate
legal remedy for the denial of his coronary artery disease
claim. Accordingly, his petition for a writ of mandamus is
denied. See, e.g., Alhamarshah, 142 Ohio St.3d at
526 ("When the relator has a plain and adequate remedy
at law by way of appeal, courts * * * must deny the writ,
regardless of whether the relator used the remedy.")
19} We sustain Mr. Dailey's objection to the
magistrate's determination that he was required to pursue
an R.C. 4123.512 appeal of the commission's August 13,
2014 order, overrule his other objections to the
magistrate's decision as moot, and dismiss his mandamus
petition because R.C. 4123.512 provides him an adequate
remedy at law.
sustained in part and overruled in part; writ dismissed.
BRUNNER and BEATTY BLUNT, JJ., concur.
on February 14, 2019
MAGISTRATE STEPHANIE BISCA
20} Relator, Kevin A. Dailey, has filed this
original action requesting this court issue a writ of
mandamus ordering respondent Industrial Commission of Ohio
("commission") to: 1) vacate the August 12, 2014
order wherein the commission exercised its continuing
jurisdiction and allowed his claim for "myocardial
infarction," but was silent as to the allowance of
coronary artery disease or ("CAD"); and 2) vacate
the October 6, 2016 order wherein the commission found that
it lacked jurisdiction to consider relator's motion and
request for reconsideration concerning the allowance of CAD
as a newly allowed condition while relator's R.C.
4123.512 appeal was pending in the Athens County Court of
Common Pleas for the allowance of that same condition.
Relator argues that his claim against respondent, Hocking
Technical College ("HTC") should be allowed for
21} 1. Relator had worked as a fully certified
firefighter since 1968.
22} 2. Over his 44-year career, relator worked for
several different employers.
23} 3. From 1982 through 2013, relator was a
firefighter for Richland Township (Rushville Volunteer Fire
Department) including the last seven years as the department
chief. Relator was actively and routinely exposed to smoke,
chemicals, fumes, and fires in his positions as both a
firefighter and chief.
24} 4. Relator also worked as an instructor at HTC
where he taught firefighting part-time from 1999 through
February 24, 2012. Relator lectured students in all areas of
firefighting and his duties included: providing instructional
services; performing academic advising; engaging in
continuous professional development; participating in
department activities; participating in academic affairs;
maintaining a safe working area and conditions. At HTC,
relator had limited actual exposure to live fires and
compliance records from HTC indicate that he attended five
live fire training sessions from 2000 to 2012.
25} 5. It is undisputed that relator has a family
history of heart problems and that he suffered from other
health problems including morbid obesity, type 2 diabetes
myelitis, hyper lipidemia, hyper tension, and obstructive
26} 6. On February 24, 2012, relator was moving
pallets for fire training at HTC. As a result, relator
suffered an acute myocardial infarction. At the hospital,
relator received an extensive course of treatment including
cardiac catheterization, angioplasty, and a coronary artery
27} 7. On May 21, 2013, relator completed a First
Report of an Injury, Occupational Disease or Death
("FROI-1") application listing HTC as his employer
and identifying his position as instructor since September
28} 8. Relator obtained the August 15, 2013 report
of Charles V. Mattingly, M.D., who noted that relator was a
61-year old male who worked as a firefighter and was admitted
to the hospital complaining of severe chest pain, shortness
of breath, diaphoresis and nausea. Dr. Mattingly also noted
that, prior to the onset of symptoms, relator was
"reaching for and lifting heavy pallets during a
'training fire.'" Thereafter, Dr. Mattingly
noted the results of testing as well as what was revealed
during surgery and opined relator suffered from
cardiovascular disease. Specifically, in discussing
relator's work and its effect on his health, Dr.
Mr. Kevin Dailey is a 61-year-old white male who suffered a
heart attack while working as a firefighter in Lancaster,
Ohio. He was admitted to Fairfield Medical Center on February
25, 2012 with severe chest pain, shortness of breath,
diaphoresis and nausea. Prior to the onset of these symptoms,
Mr. Dailey was reaching for and lifting heavy pallets during
a "training fire."
* * *
Mr. Dailey's occupation of firefighting is known to be
dangerous. However, what is less appreciated by the general
public is that the most frequent cause of death among
firefighters is heart disease. Cardiovascular events, largely
due to coronary heart disease, account for 45 percent of
deaths among firefighters on active duty.
The high incidence of death from cardiovascular causes among
firefighters raises questions about contributing factors.
Possible factors include physical exertion, emergency
responses and dangerous job duties. These factors are not
unique to firefighting, but are also characteristic of the
job duties of police officers, military personnel and
individuals in other occupations.
Various biologically plausible explanations for the high
morbidity in firefighters from cardiovascular events have
been suggested. These include smoke and chemical exposure,
extreme physical exertion, handling heavy equipment and
materials, heat stress, shift work, high prevalence of
cardiovascular risk factors and psychological stressors. In
addition, the impact of demanding work while wearing heavy
gear is repeatedly established in the literature.
When the demands of work in a stressful environment under
extreme temperatures, space and time constraints, and smoke,
noise, dust and chemical exposures are considered, it is
reasonable to conclude that cardiac stress can be
significant. All of the foregoing factors can contribute to