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State ex rel Cottrell v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

July 11, 2019

The State ex rel. Michael C. Cottrell, (Through Dependent, Brooks J. Cottrell), Relator,
v.
Industrial Commission of Ohio et al., Respondents.

          IN MANDAMUS ON RESPONDENTS' MOTIONS TO DISMISS AND ON OBJECTIONS TO MAGISTRATE'S DECISION.

         On brief:

          Steven G. Thomakos, for relator.

          Dave Yost, Attorney General, and Sherry M. Phillips, for respondent Industrial Commission of Ohio.

          Dave Yost, Attorney General, and Patsy A. Thomas, for respondent Ohio Bureau of Workers' Compensation.

         Argued:

          Natalie J. Tackett.

          Sherry M. Phillips.

          Steven G. Thomakos.

          DECISION

          BEATTY BLUNT, J.

         {¶ 1} Relator, Brooks J. Cottrell, filed this original action requesting a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to find that a C-86 motion, filed May 4, 2015, was timely filed. Relator further requests that we issue a writ ordering the commission to process the motion and award him "total loss of use" compensation.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} Because this matter is before the court on two motions to dismiss, we consider the following facts, as plead in the complaint, as true.

         {¶ 3} On May 12, 2014, relator's father ("decedent") was involved in a workplace accident when he was welding on top of an oil field storage tank and the tank exploded. He died shortly thereafter. A physician opined that decedent suffered a pre-mortal injury that resulted in the total loss of use of both of his legs.

         {¶ 4} Relator was decedent's only biological child. He was three years old at the time of decedent's death. Decedent and relator's mother were not married, and relator was has always been in his mother's custody.

         {¶ 5} On July 3, 2014, the Ohio Bureau of Workers' Compensation ("Ohio BWC") declared relator a dependent of decedent and allowed his claim for death benefits.

         {¶ 6} On April 17, 2015, the Ohio BWC declared decedent's mother, relator's grandmother ("grandmother"), a prospective dependent.

         {¶ 7} On May 4, 2015, grandmother filed a C-86 motion requesting that the Ohio BWC "allow the claim for loss of use of bilateral lower extremities and pay loss of use award." (Compl. at ¶ 9.)

         {¶ 8} On June 30, 2015, the district hearing officer ("DHO") determined that grandmother was not a dependent pursuant to R.C. 4123.59.

         {¶ 9} The staff hearing officer ("SHO"), by decision dated August 12, 2015, agreed that relator's grandmother failed to prove that she was decedent's dependent.

         {¶ 10} On January 9, 2016, the commission dismissed grandmother's May 4, 2015 motion.

         {¶ 11} On May 2, 2016, relator, through counsel, filed his own C-86 motion and requested that the commission exercise its continuing jurisdiction and reconsider its dismissal of grandmother's May 4, 2015 motion. The commission dismissed this motion, finding that it lacked jurisdiction to re-address grandmother's original motion.

         {¶ 12} On May 12, 2017, relator filed a motion requesting that the commission exercise its continuing jurisdiction and reconsider grandmother's May 4, 2015 C-86 motion as it applied to relator. Relator argued that he should be allowed to be substituted in for grandmother, who filed a timely motion when she was considered a prospective dependent.

         {¶ 13} On October 2, 2017, the SHO denied relator's request for reconsideration. The SHO determined that there is no legal authority to allow relator to substitute in for grandmother after her motion was dismissed. The SHO also found that relator failed to present persuasive evidence to support his request that the commission exercise its continuing jurisdiction.

         {¶ 14} Relator filed the instant mandamus action. In addition to requesting that we issue a writ, as described above, relator avers in his complaint that "new and changed circumstances" allow the commission to exercise its continuing jurisdiction, namely circumstances surrounding grandmother's status as a prospective dependent. (Compl. at ¶ 16.)

         {¶ 15} Both the commission and the Ohio BWC filed motions to dismiss, pursuant to Civ.R. 12(B)(6), arguing that relator cannot show (1) a clear legal right to the loss of use award, (2) a clear legal duty for the BWC to grant such an ...


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