State ex rel. Thirion v. Indus. Comm.

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-6463

Case Date: 12/15/2011

Plaintiff: State ex rel. Thirion

Defendant: Indus. Comm.

Preview:[Cite as State ex rel. Thirion v. Indus. Comm., 2011-Ohio-6463.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. William E. Thirion,                                                               :
Relator,                                                                                        :
v.                                                                                              :   No. 10AP-282
Industrial Commission of Ohio and                                                               :   (REGULAR CALENDAR)
Trumbull County,
                                                                                                :
Respondents.
                                                                                                :
D  E  C  I  S  I  O  N
Rendered on December 15, 2011
Urban Co., L.P.A., and Anthony P. Christine, for relator.
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
CONNOR, J.
{¶1}     Relator,  William  E.  Thirion,  filed  this  original  action  seeking  a  writ  of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate
its order, which denied his request for an adjustment of the start date for his award of
permanent total disability ("PTD") compensation, and to enter an order changing the start
date to November 30, 2006.

No.                                                                                               10AP-282   2
{¶2}   This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 12(M) of the Tenth District Court of Appeals.   The parties stipulated the pertinent
evidence and filed briefs.   The magistrate rendered a decision which is appended hereto.
In the appended decision, the magistrate issued findings of fact and conclusions of law
before  ultimately  recommending  that  this  court  deny  relator's  request  for  a  writ  of
mandamus.    In support, the magistrate cited two legal consequences resulting from
relator's failure to file objections to the tentative order issued by the commission on
October  27,  2009.    First, because relator failed to file objections, the tentative order
became final and could only be reopened by the commission's exercise of continuing
jurisdiction.   Because relator failed to allege any of the bases permitting the commission
to exercise continuing jurisdiction, the magistrate found no abuse of discretion on the part
of  the commission in denying the relief  sought.    Second, the magistrate noted that
relator's failure to object constituted a failure to exhaust his administrative remedies.
Because relator failed to exhaust administrative remedies, one of the required elements
of his mandamus action was lacking because he had an adequate remedy at law.
{¶3}   Upon our independent review, we find no merit to relator's objections.   First,
relator's objections offer not a single citation to a legal authority of any kind.   Rather,
relator's counsel recites his personal experience before the commission and simply states
that objections to the tentative order were not required, and the exercise of continuing
jurisdiction was not necessary.   Relator also cites a policy guideline allegedly utilized by
the commission in adjusting start dates.    He asserts that the policy guideline never
mentions the need to exercise continuing jurisdiction.   We note the difficulty in reconciling
these positions with relator's merit brief, in which he argued that the commission should

No.                                                                                           10AP-282   3
have exercised continuing jurisdiction.   Nevertheless, as the commission aptly notes, in
no way does this policy guideline alter the statutes, rules, regulations, and case law
establishing the rights and obligations of parties before the commission.   The same can
be said of counsel's personal experience before the commission.
{¶4}   As a result, after an examination of the magistrate's decision, as well as an
independent review of the record and relevant law, we conclude that the magistrate has
sufficiently discussed and determined the issues raised by relator.   We therefore overrule
relator's objections to the magistrate's decision and adopt the appended decision as our
own.  As a result, we deny relator's request for a writ of mandamus.
Objections overruled;
writ denied.
SADLER and DORRIAN, JJ., concur.

No.                                                                                          10AP-282                                                                                   4
                                                                                                                                 A P P E N D I X
                                                                                                                                 IN THE COURT OF APPEALS OF OHIO
                                                                                                                                 TENTH APPELLATE DISTRICT
                                                                                             State ex rel. William E. Thirion,   :
                                                                                             Relator,                            :
v.                                                                                                                               :                                 No. 10AP-282
                                                                                             Industrial Commission of Ohio and   :                                 (REGULAR CALENDAR)
Trumbull County,
                                                                                                                                 :
                                                                                             Respondents.
                                                                                                                                 :
M A G I S T R A T E ' S      D E C I S I O N
Rendered on April 29, 2011
Urban Co., L.P.A., and Anthony P. Christine, for relator.
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶5}   In  this  original  action,  relator,  William  E.  Thirion,  requests  a  writ  of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order denying his December 1, 2009 motion for an adjustment of the start date for his
award of permanent total disability ("PTD") compensation, and to enter an order changing
the start date to November 30, 2006.

No.                                                                                             10AP-282                                                                               5
Findings of Fact:
{¶6}                                                                                            1.   Relator has three industrial claims.   Industrial claim number 03-459956
is allowed for "right shoulder sprain; aggravation of degenerative disc disease L5-S1."
Industrial claim number 00-409153 is allowed for "sprain thoracic region."   Industrial claim
number 02-386561 is allowed for "olecranon bursitis, left."
{¶7}                                                                                            2.   On  July 24,                                                                      2009,  at  relator's  request,  he  was  examined  by  E.  B.
                                                                                                Marsolais, M.D., Ph.D., who issued a three-page narrative report in which he opined:
Mr. Thirion remains totally and permanently disabled for any
consistent reasonably remunerative activity as a direct and
proximate  result  of  the  allowed  injury.  There  is  a  small
chance that further surgery could help him, but there is also
a chance it could make him worse. * * *
{¶8}                                                                                            3.   The record also contains an office note from Dr. Marsolais dated July 30,
2006.   The office note states in part:
Return to workdate         Return to work capacity
never
(Emphasis sic.)
{¶9}                                                                                            4.   On August 21, 2009, relator filed an application for PTD compensation.
In support, relator submitted the July 24, 2009 report from Dr. Marsolais.
{¶10}                                                                                           5.   On October 1, 2009, at the commission's request, relator was examined
by John L. Dunne, D.O., who issued a narrative report.   On October 1, 2009, Dr. Dunne
also completed a physical strength rating form.   On the form, Dr. Dunne indicated by his
mark "[t]his Injured Worker is incapable of work."
{¶11}                                                                                           6.   On October 23, 2009, citing Ohio Adm.Code 4121-3-34(C)(6)(a), relator
moved the commission for the issuance of a tentative order.   In support of his motion,

No.                                                                                     10AP-282                                                                              6
relator submitted a memorandum in which he requested that the tentative order provide
for  a  compensation  start  date  of  November 30,                                     2006  based  upon  Dr.  Marsolais'
November 30, 2006 office note.
{¶12}                                                                                   7.   On October 27, 2009, a staff hearing officer ("SHO") mailed a tentative
order awarding PTD compensation starting July 24, 2009.  The tentative order states:
After full consideration of the issue, it is the order of the Staff
Hearing Officer that the Application for Permanent and Total
Disability  filed  on                                                                   8/21/2009  is  GRANTED.  This  order  is
based specifically upon the 10/1/2009 Industrial Commission
Specialist examination of Dr. John Dunne, D.O., who found
that  the  Injured                                                                      [W]orker  would  not  be  able  to  perform
sustained remunerative employment activities based upon
the  allowed  conditions  in  claim                                                     #  03-459956.  Permanent
Total Disability benefits are to be paid from 7/24/2009, the
earliest  medical  evidence  of  permanent  total  disability                           -
specifically, the 7/24/2009 report of Dr. E. Byron Marsolais,
M.D.
An objection may be filed with the Industrial Commission
within fourteen  (14) days of the receipt of this order. If a
timely objection is filed, the IC-2 Application for Permanent
Total Disability will be scheduled for hearing.
(Emphasis sic.)
{¶13}                                                                                   8.   Relator did not file an objection to the tentative order.
{¶14}                                                                                                                                                                         9.   Rather, on December 1, 2009, relator moved for an adjustment of the
                                                                                        PTD start date to coincide with the November 30, 2006 office note of Dr. Marsolais.
{¶15}                                                                                   10.   Following  a  January 14,                                                                                                                                  2010  hearing,  an  SHO  issued  an  order
                                                                                        denying relator's December 1, 2009 motion.  The SHO's order explains:
It is the order of the Staff Hearing Officer that the Injured
Worker's C-86 motion filed 12/01/2009 is denied.

No.                                                                 10AP-282                                                                     7
The  Staff  Hearing Officer notes  that  there was  no  timely
appeal  filed  to  the  Staff  Hearing  Officer  order  issued
10/27/2009, which granted the Injured Worker's application
for  permanent  total  disability  compensation.  Thus,  the
Injured Worker did not exhaust all administrative remedies,
and the Staff Hearing Officer order issued 10/27/2009 is a
final Commission order. This order can only be reopened
only  [sic] through the Commission's exercise of continuing
jurisdiction.
The Staff Hearing Officer finds that the Injured Worker has
failed to present evidence under R.C.  4123.52 to warrant
invocation  of  continuing  jurisdiction.  The  Staff  Hearing
Officer notes that there has been no allegation of new and
changed circumstances, fraud, clear mistake of fact, clear
mistake of law, or an error by an inferior tribunal.
From  a  substantive  perspective,  the  Staff  Hearing Officer
finds that the Injured Worker has submitted the 11/30/2006
office  note  and                                                   11/30/2006  C-84  report  from  Earnest  B.
Marsolais,  M.D.,  indicated  that  the  Injured  Worker  would
"never" return to work. However, the Staff Hearing Officer
finds that the office note fails to specify the work to which the
Injured  Worker  would  never  return,  and  the  C-84  report
refers to the Injured Worker never returning to his former
position of employment. Thus, the Staff Hearing Officer finds
that  the  Injured  Worker  has  failed  to  establish  that  Dr.
Marsolais'                                                          11/30/2006  opinion  as  to  the  Injured  Worker's
"return  to  work                                                   -  never"  status  references  sustained
remunerative employment.
This  order  is  being  placed  pursuant  to  State  ex.  rel.
Middleton v. Indus. Comm.  (2007), Ohio App.  (10th App.
Dist.), 06AP-551.
Thus, the Injured Worker's request to adjust the start date of
Permanent Total Disability compensation is denied.
{¶16}                                                               11.   On March 29,  2010, relator, William E. Thirion, filed this mandamus
action.

No.                                                                                                 10AP-282                                                                 8
Conclusions of Law:
{¶17}  It is the magistrate's decision that this court deny relator's request for a writ
of mandamus, as more fully explained below.
{¶18}  Ohio Adm.Code  4121-3-34(C) sets forth the commission's rules for the
processing of PTD applications.
Thereunder, Ohio Adm.Code 4121-3-34(C)(6) provides:
(a) After the reports of the commission medical examinations
have been received, the hearing administrator may refer the
claim  to  an  adjudicator  to  consider  the  issuance  of  a
tentative order, without a hearing.
(i) Within fourteen days of the receipt of the tentative order
adjudicating the merits of an application for compensation for
permanent  and  total  disability,  a  party  may  file  a  written
objection  to  the  order.  Unless  the  party  notifies  the
commission in writing of the objection to the tentative order
within fourteen days after the date of receipt of notice of the
findings  of  the  tentative  order,  the  tentative  order  shall
become final.
(ii)                                                                                                In the event a party makes written notification to the
industrial commission of an objection within fourteen days of
the  date  of  the  receipt  of  the  notice  of  findings  of  the
tentative   order,   the   application   for   compensation   for
permanent and total disability shall be set for hearing and
adjudicated on its merits.
{¶19}                                                                                               Pursuant to Ohio Adm.Code  4121-3-34(C)(6), the tentative order mailed
October 27, 2009 became final upon the failure of relator to object to the tentative order.
{¶20}  Once the tentative order became final, it could be reopened only through
the commission's exercise of continuing jurisdiction.   That, in turn, could occur only if one
of five prerequisites have been met: (1) new and changed circumstances; (2) fraud; (3)
clear mistake of fact; (4) clear mistake of law; or (5) error by an inferior tribunal.   State ex
rel. Poneris v. Indus. Comm., 111 Ohio St.3d 264, 2006-Ohio-5702.

No.                                                                                            10AP-282   9
{¶21}  The SHO's order of January 14, 2010 correctly notes that the SHO's order
of October 27, 2009 (tentative order) became a final order that can only be reopened
through the commission's exercise of continuing jurisdiction.
{¶22}  The SHO's order of January 14, 2010 correctly notes that relator failed to
allege any of the five prerequisites for the exercise of continuing jurisdiction.
{¶23}  Under such circumstances, the SHO had no basis to reopen the final order
of October 27, 2009.
{¶24}  The  SHO's  order  of  January 14,  2010  also  notes  that  relator  failed  to
exhaust his administrative remedies.   In fact, relator did fail to file an objection to the
SHO's order of October 27, 2009 as to the start date of the PTD award.
{¶25}  Relator's failure to exhaust his administrative remedies by failing to object to
the October 27, 2009 order has adverse consequences as to maintaining this mandamus
action.
{¶26}  A writ of mandamus will not issue where relator has a plain and adequate
remedy in the ordinary course of law.   State ex rel. Berger v. McMonagle (1983), 6 Ohio
St.3d 28.   It is well-settled that an adequate administrative remedy precludes relief in
mandamus.   State ex rel. Harshaw Chem. Co. v. Zimpher (1985), 18 Ohio St.3d 166;
State ex rel. Stafford v. Indus. Comm. (1989), 47 Ohio St.3d 76; and State ex rel. Reeves
v. Indus. Comm. (1990), 53 Ohio St.3d 212.
{¶27}  Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.
/s/ Kenneth W. Macke
KENNETH  W.   MACKE
MAGISTRATE

No.                                                                10AP-282   10
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated
as  a  finding  of  fact  or  conclusion  of  law  under  Civ.R.
53(D)(3)(a)(ii),  unless  the  party  timely  and  specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).

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