{¶ 2} Pursuant to Civ.R. 53(C) and Loc.12(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. (Attached as Appendix A.) In that decision, the magistrate cоncluded that the 1998 DHO order setting AWW at $4.85 was a final commission order because it was not administratively appealed and because relator was unsuccessful in obtaining R.C.
{¶ 3} No objections have been filed to the magistrate's decision.
{¶ 4} Finding no error of law or other defect on the face of the magistrate's decision, we adopt the decision as our own, including the findings of fact and conclusions оf law contained therein. In accordance with the magistrate's recommendation, the requested writ of mandamus is denied.
Writ of mandamus denied.
Jim Petro, Attorney General, and Gerald H. Waterman, for respondent Industrial Commission of Ohio.
David R. Cook, for respondent Marc Glassman, Inc.
Findings of Fact:
{¶ 6} 1. On November 14, 1997, rеlator sustained an industrial injury while employed with respondent Marc Glassman, Inc., a self-insured employer under Ohio's workers' compensation laws. The employer certified the claim for "laceration of the right wrist."
{¶ 7} 2. On March 12, 1998, relator filed a wage statement on a form ("C-94-A") provided by the Ohio Bureau of Workers' Compensation ("bureau"). The bureau uses thе C-94-A form to calculate the claimant's AWW.
{¶ 8} 3. The employer of record requested a hearing regarding the wage statement and the setting of AWW. Consequently, a district hearing offiсer ("DHO") scheduled a hearing on the matter for April 24, 1998.
{¶ 9} 4. On April 8, 1998, notices were mailed to the parties. A notice was mailed to relator at an address located at Solоn, Ohio.
{¶ 10} 5. The matter was heard by the DHO on April 24, 1998 as scheduled. No one appeared for the claimant at the hearing.
{¶ 11} 6. Thereafter, the DHO issued an order stating:
It is the order of the District Hearing Officer that the C-94-A Wage Statement filed by Claimant on 03/12/1998 is granted to the extent of this order.
District Hearing Officer sets average weekly wage at $4.85 based on the available wage information provided by the claimant.
{¶ 12} 7. The DHO's order of April 24, 1998 was mailed to relator at the same address located at Solon, Ohio.
{¶ 13} 8. The DHO's order of April 24, 1998 was not administratively appealed.
{¶ 14} 9. On August 11, 1998, relаtor moved for relief from the April 24, 1998 DHO's order pursuant to R.C.
{¶ 15} 10. Following a March 25, 1999 hearing, a staff hearing officer ("SHO") issued an order denying relator's August 11, 1998 motion. The SHO found that relator's failure to receive a copy of the DHO's order of April 24, 1998, was the result of her own fault and neglect fоr failing to timely notify the commission or bureau of her change of address.
{¶ 16} 11. Relator requested reconsideration of the SHO's order of March 25, 1999. The commission denied reconsideration.
{¶ 17} 12. Thereafter, relator filed in this court a mandamus action which was assigned case number 99AP-639. In that action, relator asked this court to issue a writ of mandamus ordering the commission to vacate its order denying her relief from the April 24, 1998 DHO's order and to enter an order granting her relief from the DHO's order.
{¶ 18} 13. On November 30, 1999, a magistrate of this court issued a magistrate's decision in case number 99AP-639. The magistrate concluded that the writ should be denied.
{¶ 19} 14. On June 1, 2000, this court issued a memorandum decision in case number 99AP-639. In this court's judgment entry of June 2, 2000, this court adopted the magistrate's decision and denied the writ of mandamus.
{¶ 20} 15. On July 26, 2000, relator moved the commission for the recognition of additional claim allowances. In that same mоtion, relator also asked the commission to exercise its continuing jurisdiction to correct or modify the DHO's order of April 24, 1998 setting AWW at $4.85.
{¶ 21} 16. Following a January 5, 2001 hearing, a DHO issued an ordеr granting additional claim allowances but refusing to revisit AWW. The DHO's order states:
The District Hearing Officer finds that the issue of claimant's Average Weekly Wage is res judicata per 4/24/98 District Hеaring Officer order. Claimant's contention that continuing jurisdiction requires reconsideration of the Average Weekly Wage because the District Hearing Officer failed to сonsider the 3/12/94 C-94A is not substantiated.
{¶ 22} 17. Relator administratively appealed the DHO's order of January 5, 2001.
{¶ 23} 18. Following a February 12, 2001 hearing, an SHO issued an order stating that the DHO's order was being modified. Regarding the AWW issue, the SHO's order of February 12, 2001 states:
Staff Hearing Officer finds that the issue of setting of the AWW is res judicata. The issue was decided by the 4-24-98 DHO order. Staff Hearing Officer finds that there has beеn no proof offered that the evidence in the file was not considered or evaluated to render the decision.
Staff Hearing Officer finds that the issue of continuing jurisdiction is, аlso, res judicata.
This was argued before the Court of Appeals. In its 6-1-00 decision the Court stated, "In considering the circumstances under which continuing jurisdiction may be exercised, it is this magistrate's conclusion that relator has not demonstrated that her situation falls under any of those circumstances".
This decision is based on the 4-24-98 DHO order and the 6-1-00 Court of Appeals decision. All the evidence, arguments, and testimony submitted as of the date of this hearing have been reviewed and evaluated to render this decision.
{¶ 24} 19. On March 10, 2001, the commissiоn refused to hear relator's administrative appeal from the SHO's order of February 12, 2001.
{¶ 25} 20. On August 14, 2003, relator, Eastlyn Alleyne, filed this mandamus action.
Conclusions of Law:
{¶ 26} It is the magistrate's decision that this court deny rеlator's request for a writ of mandamus, as more fully explained below.
{¶ 27} Analysis begins with the observation that the April 24, 1998 DHO's order setting AWW at $4.85 is a final commission order. It is final because it was not administratively appealed and because relator was unsuccessful in obtaining R.C.
{¶ 28} Ordinarily, a final commission order adjudicating extent of disability can be challenged in mandamus unless the relator has failed to pursue an adequate administrative remedy. An administrative appeal of the DHO's order of April 24, 1998, had it been exercised, would have given relator a plain and adequate remedy at law. See R.C.
{¶ 29} This mandamus action is essentially controlled byState ex rel. Buckley v. Indus. Comm.
{¶ 30} Of course, the Buckley case does differ from the instant case in that Ms. Buckley did not unsuccessfully move for R.C.
{¶ 31} That relatоr filed a motion on July 26, 2000 asking the commission to exercise its continuing jurisdiction to correct the DHO's order of April 24, 1998, does not alter the fact that relator failed to pursue аn adequate administrative remedy that bars mandamus relief. Relator cannot eradicate her failure to pursue an adequate administrative remedy by filing subsequent motions with thе commission seeking the exercise of continuing jurisdiction.
{¶ 32} The commission can exercise continuing jurisdiction over an order that has become final due to a lack of an administrative appeal. See State ex rel. Scott v. Ohio Bur. ofWorkers' Comp. (1995),
{¶ 33} 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