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State ex rel. Dailey v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

June 25, 2019

The State ex rel. Kevin A. Dailey, Relator,
Industrial Commission of Ohio et al., Respondents.


         On brief:

          Knisley Law Offices, and Kurt A. Knisley, for relator.

         On brief:

          Dave Yost, Attorney General, and Natalie J. Tackett, for respondent Industrial Commission of Ohio.

         On brief:

          Dave Yost, Attorney General, and Michael J. Roche, for respondent Hocking Technical College.


          NELSON, J.

         {¶ 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 Rule 53(D)(4)(d).

         {¶ 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 disallowed claim.

         {¶ 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 added).

         {¶ 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 issue).

         {¶ 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 determination."' "

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.") (citations omitted).

         {¶ 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.

         Objections sustained in part and overruled in part; writ dismissed.

          BRUNNER and BEATTY BLUNT, JJ., concur.


         Rendered on February 14, 2019

         IN MANDAMUS



         {¶ 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 CAD.

         Findings of Fact:

         {¶ 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 sleep apnea.

         {¶ 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 bypass graft.

         {¶ 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 1999.

         {¶ 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. Mattingly stated:

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 ...

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