The State ex rel. Michael C. Cottrell, (Through Dependent, Brooks J. Cottrell), Relator,
Industrial Commission of Ohio et al., Respondents.
MANDAMUS ON RESPONDENTS' MOTIONS TO DISMISS AND ON
OBJECTIONS TO MAGISTRATE'S DECISION.
G. Thomakos, for relator.
Yost, Attorney General, and Sherry M. Phillips, for
respondent Industrial Commission of Ohio.
Yost, Attorney General, and Patsy A. Thomas, for respondent
Ohio Bureau of Workers' Compensation.
Natalie J. Tackett.
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.
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
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
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
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