[Cite as State ex rel. Smith v. Indus. Comm., 2016-Ohio-8339.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Bonnie L. Smith,                       :

                 Relator,                            :

v.                                                   :              No. 15AP-912

Industrial Commission of Ohio and                    :           (REGULAR CALENDAR)
Fairfield City School District,
                                                     :
                 Respondents.
                                                     :




                                            D E C I S I O N

                                   Rendered on December 22, 2016


                 On brief: Roeller & Roeller, LLC, and Robert K. Roeller, for
                 relator. Argued: Robert K. Roeller.

                 On brief: Michael DeWine, Attorney General, and Patsy A.
                 Thomas, for respondent Industrial Commission of Ohio.
                 Argued: Patsy A. Thomas.

                 On brief: Coolidge Wall Co., L.P.A., David C. Korte,
                 Michelle D. Bach, and Joshua R. Lounsbury, for respondent
                 Fairfield City School District. Argued: Joshua R.
                 Lounsbury.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, P.J.
        {¶ 1} Relator, Bonnie L. Smith, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate the order of its staff hearing officer ("SHO") mailed
No. 15AP-912                                                                                          2


September 2, 20151 that refused relator's appeal, pursuant to R.C. 4123.511(E), from an
order of another SHO that denied relator's request for temporary total disability ("TTD")
compensation following an August 10, 2015 hearing. Relator requests the writ order the
commission to hear her appeal in which she has endeavored to submit additional
documentary evidence.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(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, which is appended hereto. The magistrate recommends
this court deny the request for a writ of mandamus.
        {¶ 3} Relator has filed four objections to the magistrate's decision as follows:
                [I.] Relator objects to the Magistrate's personal selection of
                the Magistrate's "Findings of Fact" that were not specifically
                stated by the Industrial Commission Order or what evidence
                the Commission had relied upon or its reasoning for its
                refusal Decision.

                [II.] The Relator objects to the Magistrate's Decision that
                fails to address the specific problem of the August 10, 2015
                Order of the SHO that stated the issue was PAYMENT of
                Temporary Total Compensation after forced retirement by
                the Employer because the SHO could not find written
                documentation in the file after the Relator testified she was
                forced to retire by the Employer.

                [III.] Relator objects to the Magistrate's statement that "A
                refusal of further appeal is not an 'order' and does not grant
                or deny benefits to a claimant."

                [IV.] Relator objects to the Magistrate's assertion that State
                ex rel. Extendicare Health Servs., Inc. v. Indus. Comm. and
                Mahogney Harrison, Respondent, 10th Dist. No. 03AP-1201,
                2004-Ohio-5255 is similar to Relator Bonnie L. Smith's case.
(Emphasis sic.)
        {¶ 4} We begin by noting that it appears relator confuses the commission's
administrative appeal process, pursuant to R.C. 4123.511(E), with the process, pursuant to


1 The hearing date for this order was August 28, 2015; however, the order was not mailed until
September 2, 2015. For reference purposes, we will use the "mailed" date when referring to orders of the
commission.
No. 15AP-912                                                                            3


R.C. 4121.35(B)(2) and 4123.511(D). Indeed, relator's brief presented to the magistrate is
replete with references to R.C. 4121.35.
       {¶ 5} R.C. 4121.35 states:
               (A) Staff hearing officers shall consider and decide all
               matters specified in division (B) of this section.

               (B) Except as provided in division (D) of this section, staff
               hearing officers have original jurisdiction to hear and decide
               the following matters:

               ***

               (2) Appeals from an order of a district hearing officer issued
               under division (C) of section 4123.511 of the Revised Code;

               (C) The decision of a staff hearing officer under division (D)
               of section 4123.511 of the Revised Code is the decision of the
               commission for the purposes of section 4123.512 of the
               Revised Code unless the commission hears an appeal under
               division (E) of section 4123.511 of the Revised Code.

               (D) Staff hearing officers shall hold hearings on all matters
               referred to them for hearing. Hearing procedures shall
               conform to the rules the commission adopts pursuant to
               section 4121.36 of the Revised Code.

       {¶ 6} R.C. 4123.511 states:

               (C) If an employer or claimant timely appeals the order of
               the administrator issued under division (B) of this section or
               in the case of other contested claims other than state fund
               claims, the commission shall refer the claim to an
               appropriate district hearing officer according to rules the
               commission adopts under section 4121.36 of the Revised
               Code.

               Any party may appeal an order issued under this division
               pursuant to division (D) of this section within fourteen days
               after receipt of the order under this division.

               (D) Upon the timely filing of an appeal of the order of the
               district hearing officer issued under division (C) of this
               section, the commission shall refer the claim file to an
               appropriate staff hearing officer according to its rules
               adopted under section 4121.36 of the Revised Code. * * * Any
No. 15AP-912                                                                                                     4


                 party may appeal an order issued under this division
                 pursuant to division (E) of this section within fourteen days
                 after receipt of the order under this division.

                 (E) Upon the filing of a timely appeal of the order of the staff
                 hearing officer issued under division (D) of this section, the
                 commission or a designated staff hearing officer, on behalf of
                 the commission, shall determine whether the commission
                 will hear the appeal. * * * If the commission or the
                 designated staff hearing officer determines not to hear the
                 appeal, within fourteen days after the expiration of the
                 period in which an appeal of the order of the staff hearing
                 officer may be filed as provided in division (D) of this
                 section, the commission or the designated staff hearing
                 officer shall issue an order to that effect and notify the
                 parties and their respective representatives in writing of that
                 order.

                 Except as otherwise provided in this chapter and Chapters
                 4121., 4127., and 4131. of the Revised Code, any party may
                 appeal an order issued under this division to the court
                 pursuant to section 4123.512 of the Revised Code within sixty
                 days after receipt of the order, subject to the limitations
                 contained in that section.
        {¶ 7} A review of the stipulation of evidence filed by relator reveals that, on
June 23, 2015, pursuant to R.C. 4121.342 and 4123.511, the district hearing officer
("DHO") found that relator had abandoned the entire workforce and she was not entitled
to TTD compensation benefits. On August 12, 2015, the SHO, pursuant to R.C. 4121.35(B)
and 4123.511(D), affirmed the DHO and found that relator had voluntarily abandoned the
workforce and was not entitled to TTD compensation benefits. On September 2, 2015,
pursuant to R.C. 4123.511(E), another SHO refused relator's appeal of the August 12, 2015
order pursuant to its authority under R.C. 4123.511(E). The complaint requesting a writ
of mandamus asks this court to vacate the September 2, 2015 order refusing appeal.
        {¶ 8} With all this in mind, we address relator's third objection first because
resolution of the same provides context to relator's first, second, and fourth objections. In
2R.C. 4121.34 states: "(A) District hearing officers shall hear the matters listed in division (B) of this section.
* * * (B) District hearing officers shall have original jurisdiction on all of the following matters: (1)
Determinations under section 4123.57 of the Revised Code; (2) All appeals from a decision of the
administrator of workers' compensation under division (B) of section 4123.511 of the Revised Code; (3) All
other contested claims matters under this chapter and Chapters 4123., 4127., and 4131. of the Revised Code,
except those matters over which staff hearing officers have original jurisdiction."
No. 15AP-912                                                                             5


her third objection, relator argues the magistrate should not refer to the September 2,
2015 order of the SHO as an "order" after concluding that it is not an order which grants
or denies benefits.
       {¶ 9} Consistent with our rulings in State ex rel. Extendicare Health Servs. v.
Harrison, 10th Dist. No. 03AP-1201, 2004-Ohio-5255, the SHO's September 2, 2015
order refusing appeal was not an order granting or denying benefits to a claimant. In
Extendicare Health, we considered whether the commission was required to explain its
reasons for refusing administrative appeal and state the evidence on which it relies
pursuant to State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481, 483 (1983),
and State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203, 206 (1991). We concluded:
               We do not interpret the clear language employed by the court
               in Noll to require an explanation of the commission's
               reasoning when the commission refuses to hear a further
               appeal from a decision of a Staff Hearing Officer granting
               benefits to a claimant. A refusal of further appeal is not an
               "order" and does not grant or deny benefits to a claimant.
(Emphasis added.) Extendicare Health at ¶ 5.
       {¶ 10} We overrule relator's third objection as it is clear that the magistrate's
reference to the "SHO's order" is reference to an order that does not grant or deny
benefits. Accordingly, the third objection is overruled.
       {¶ 11} We next address the fourth objection. Resolution of the same is consistent
with our determination that the SHO's order refusing appeal is not an order which grants
or denies benefits and, therefore, it is not necessary to comply with the Noll and Mitchell
requirements of explaining the reasons for refusing an administrative appeal and stating
the evidence on which the commission relies. Relator argues that Extendicare Health can
be distinguished from the case at bar because in Extendicare Health, the employer's
request for mandamus came after the employer's request for reconsideration was denied
by the commission. We disagree with relator that the procedural differences between
Extendicare Health and the case at bar require the commission to treat the SHO's order
refusing appeal in this case differently from the SHO's order refusing appeal in
Extendicare Health. We also note that in Extendicare Health, we addressed the refusal of
appeal and then separately addressed the refusal of reconsideration. Relator points to no
No. 15AP-912                                                                             6


authority that would cause us to come to a different conclusion. Accordingly, the fourth
objection is overruled.
       {¶ 12} We next address the first objection. Relator's first objection argues the
commission should have allowed the appeal of the August 12, 2015 SHO order. She
argues that we should follow precedent set in a different Extendicare Health case, State ex
rel. Extendicare Health Servs., Inc. v. Indus. Comm., 10th Dist. No. 02AP-1246, 2003-
Ohio-3435, where this court granted a writ of mandamus and ordered the commission to
vacate its order and reconsider the claimant's entitlement to TTD compensation. Relator
further argues the commission should have briefly explained its reasoning or the evidence
on which it relied. Finally, she argues that the magistrate's selection of facts cannot be
accepted for a full court decision.
       {¶ 13} As discussed previously regarding the third and fourth objections, the
commission was not required to state its reasoning and the evidence on which it relied
when refusing the appeal. Furthermore, we take no issue with the magistrate's recitation
of facts and note that relator does not point to any specific facts which are not supported
by the record.     Furthermore, we note that the magistrate's findings of fact include
recognition of the three documents submitted with the August 24, 2015 notice of appeal,
which relator asks this court to require the commission to consider on appeal. (See
Appended Magistrate's Decision at ¶ 34-35.)
       {¶ 14} Further, the facts in Extendicare Health, 2003-Ohio-3435, are different
from the facts before us now and do not set a precedent for us to follow. In that case, we
granted a writ of mandamus and ordered the commission to reconsider the reports of two
doctors who the commission had rejected. The case was first considered by a DHO and
then appealed to an SHO. It was further appealed and a motion for reconsideration was
filed. The further appeal and reconsideration were refused by the commission. The
complaint filed by the relator was a request for mandamus to vacate the order which had
granted TTD compensation—not to vacate the order which refused the appeal or
reconsideration.    In contrast, the complaint filed in this case indicates that relator
requests a writ of mandamus to vacate the SHO's order of September 2, 2015—the order
refusing the appeal. Accordingly, the first objection is overruled.
No. 15AP-912                                                                               7


       {¶ 15} Finally, we address the second objection. Regarding the second objection,
relator essentially argues the magistrate ultimately decided the merits of the denial of
TTD compensation. She further argues that in so doing, and in denying the requested
writ, the magistrate violates State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio
St.3d 44 (1988).     Relator argues the magistrate should have granted the writ for
mandamus as it did in Extendicare Health, 2003-Ohio-3435.
       {¶ 16} We disagree with relator's contention that the magistrate decided the merits
of the denial of TTD compensation. The magistrate concluded that the SHO's order
mailed September 2, 2015 which refuses relator's administrative appeal is not an abuse of
discretion. The magistrate did not consider nor decide the merits of the denial of TTD
compensation; nor shall we. Accordingly, the second objection is overruled.
       {¶ 17} On review of the magistrate's decision, an independent review of the record,
and due consideration of relator's objections, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
relator's four objections to the magistrate's decision and adopt the magistrate's decision as
our own, including the findings of fact and conclusions of law contained therein.
Accordingly, the requested writ of mandamus is hereby denied.
                                                                      Objections overruled;
                                                                 writ of mandamus denied.

                     LUPER SCHUSTER and BRUNNER, JJ., concur.
No. 15AP-912                                                                             8


                                       APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

State ex rel. Bonnie L. Smith,                :

               Relator,                       :

v.                                            :                     No. 15AP-912

Industrial Commission of Ohio,                :               (REGULAR CALENDAR)
Stephen Buehrer, Administrator
the Bureau of Workers' Compensation,          :
and Fairfield City School District,
                                              :
               Respondents.
                                              :


                          MAGISTRATE'S DECISION

                                 Rendered on May 23, 2016


               Roeller & Roeller, LLC, and Robert K. Roeller, for relator.

               Michael DeWine, Attorney General, and Patsy A. Thomas,
               for respondent Industrial Commission of Ohio.

               Coolidge Wall Co., L.P.A., David C. Korte, Michelle D. Bach
               and Joshua R. Lounsbury, for respondent Fairfield City
               School District.


                                      IN MANDAMUS

       {¶ 18} In this original action, relator, Bonnie L. Smith, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate the order of its staff hearing officer ("SHO") mailed September 2, 2015 that refused
relator's appeal from an order of another SHO that denied relator's request for temporary
total disability ("TTD") compensation following an August 10, 2015 hearing. Relator
No. 15AP-912                                                                              9


requests that the writ order the commission to hear relator's appeal in which relator has
endeavored to submit additional documentary evidence.
Findings of Fact:
       {¶ 19} 1. On November 14, 2011, relator sustained an industrial injury while
employed as a cook for respondent Fairfield City School District ("Fairfield City Schools"),
a self-insured employer under Ohio's workers' compensation laws. The industrial claim
(No. 11-859087) is allowed for "fracture left distal radius; fracture left patella."
       {¶ 20} 2. The record contains a letter dated July 26, 2013 from the
payroll/benefits officer of Fairfield City Schools to the School Employee's Retirement
System ("SERS"). The letter states that relator used her sick leave from November 15,
2011 through January 2, 2012. She began an unpaid leave of absence on January 3, 2012
and has remained on an unpaid leave of absence through the date of the letter.
       {¶ 21} 3. Relator began receiving TTD compensation from Fairfield City Schools.
       {¶ 22} 4. In May 2013, Fairfield City Schools moved to terminate TTD
compensation based upon a report from Dr. Vogelstein, D.O.
       {¶ 23} 5. On May 16, 2013, relator's attending physician Glen A. McClung, M.D.,
opined that the industrial injury had reached maximum medical improvement ("MMI").
Accordingly, Fairfield City Schools terminated TTD compensation based upon Dr.
McClung's MMI opinion.
       {¶ 24} 6. On March 5, 2015, relator underwent left knee surgery.
       {¶ 25} 7. On March 6, 2015, Dr. McClung completed a "Physician's Report of Work
Ability," which is a form provided by the Ohio Bureau of Workers' Compensation
("bureau"). The bureau designates the form as a Medco-14. On the form, Dr. McClung
indicated by his mark that relator is temporarily unable to perform any work including
that of her former position of employment for the period March 5 to April 5, 2015.
       {¶ 26} 8. On another Medco-14 dated August 7, 2015, Dr. McClung extended the
period of disability to October 14, 2015.
       {¶ 27} 9. On March 23, 2015, relator filed a C-84 request for TTD compensation.
       {¶ 28} 10. On June 19, 2015, a district hearing officer ("DHO") heard relator's C-
84 request for TTD compensation.            Relator appeared at the hearing with counsel.
Fairfield City Schools was also represented at the hearing. The hearing was not recorded.
No. 15AP-912                                                                           10


      {¶ 29} 11. Following the June 19, 2015 hearing, the DHO issued an order denying
the request for TTD compensation. The DHO's order explains:
               It is the order of the District Hearing Officer that the request
               for payment of temporary total disability compensation
               benefits beginning 03/05/2015 through 04/17/2015 and to
               continue, as requested, is denied.

               It is the finding of the District Hearing Officer that the
               Injured Worker is requesting payment of temporary total
               disability compensation benefits beginning 03/05/2015. The
               District Hearing Officer finds that the Injured Worker is not
               currently in the workforce and has not shown an intent to
               return to the workforce. At hearing, the Injured Worker
               testified that she retired from work with the named
               Employer in May 2012. The Injured Worker testified that she
               took a regular retirement. The Injured Worker further
               testified that she has not worked or looked for work since
               that time. The Injured Worker testified that she does not
               intend to return to work for the named Employer. The
               District Hearing Officer finds that the Injured Worker did
               not testify that she intends to return to the workforce.
               Therefore, based on these facts, the Hearing Officer finds
               that the Injured Worker has abandoned the entire workforce
               such that she is not entitled to payment of temporary total
               disability compensation benefits

               Therefore, the Injured Worker's request is denied.

               The District Hearing Officer bases this order on the Injured
               Worker's testimony at hearing.

      {¶ 30} 12. Relator administratively appealed the DHO's order of June 19, 2015.
      {¶ 31} 13. Relator's appeal was heard by an SHO on August 10, 2015. Relator
appeared with her counsel. Fairfield City Schools was also represented at the hearing.
The hearing was not recorded.
      {¶ 32} 14. Following the August 10, 2015 hearing, the SHO issued an order mailed
August 12, 2015 that affirms the DHO's order of June 19, 2015 and denies TTD
compensation. The SHO's order of August 10, 2015 explains:
               The Injured Worker requests payment of temporary total
               disability compensation commencing 03/05/2015 through
               the date of today's hearing, 08/10/2015 and continuing.
No. 15AP-912                                                                     11


               The Hearing Officer finds that the Injured Worker has failed
               to meet her buren [sic] of proof of demonstrating that she is
               entitled to payment of temporary total disability
               compensation for the period of 03/05/2015 through
               08/10/2015. Specifically, the Hearing Officer finds that the
               Injured Worker has voluntarily abandoned the workforce
               and therefore is not entitled to the payment of temporary
               total disability compensation.

               The Injured Worker testified that she retired from work with
               the named Employer in May of 2012. The Injured Worker
               testified that she has not worked or looked for work since
               that time. The Injured Worker testified that she was forced
               to retire by the Employer in May, 2012. Although the Injured
               Worker testified to this fact, there is no documentation in the
               file which would indicate that the Injured Worker took
               anything other than a regular retirement. The Injured
               Worker further testified that she does not intend to return to
               work with the named Employer.

               The Hearing Officer finds that the Injured Worker is not
               currently in the workforce and was not in the workforce at
               the time immediately prior to her request for payment of
               temporary total compensation commencing 03/05/2015.
               The Hearing Officer further finds that the Injured Worker
               has not shown any intent to return to the workforce during
               that period of time.

               "Temporary total disability compensation is intended to
               compensate an Injured Worker for the loss of earnings
               incurred while the industrial injury heals. State ex rel.
               Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517
               NE 2d. 533. There can be no lost earnings, however or even a
               potential for lost earnings, if the Claimant is no longer part
               of the active workforce. As Ashcraft observed, a Claimant
               who leaves the labor market 'no longer incurs a loss of
               earnings because he is no longer in a position to return to
               work.' " State ex rel. Pierron v. Indus. Comm. (2008) 120
               Ohio St.3d 40.

               Therefore, based upon the facts noted above, the Hearing
               Officer finds that the Injured Worker has abandoned the
               entire workforce and is not entitled to payment of temporary
               total disability compensation benefits commencing
               03/05/2015. Therefore, the Injured Worker's C-84 filed
               03/23/2015 is denied.
No. 15AP-912                                                                              12


                The Hearing Officer's decision is based upon the Injured
                Worker's testimony at today's hearing, State ex rel.
                Corman v. Allied Holdings, Inc. (2012), 132 Ohio St.3d 202,
                State ex rel. Pierron v. Indus. Comm. (2008), 120 Ohio St.3d
                40, State ex rel. Hoffman v. Rexam Beverage Can Co., (2013)
                137 Ohio St.3d 129 and State ex rel. Eckerly v. Indus. Comm.
                (2005), 105 Ohio St.3d 428.

          {¶ 33} 15. On August 24, 2015, relator timely filed a notice of appeal (on
commission form IC-12) to challenge the SHO's order of August 10, 2015.                  The
administrative appeal, in effect, seeks a hearing before the three-member commission
pursuant to R.C. 4123.511(E).
          {¶ 34} 16. With her notice of appeal, relator endeavored to submit three
documents that have not been previously submitted. Those documents are: (1) a July 17,
2013 letter to relator from the assistant superintendent for business of Fairfield City
Schools, (2) an SERS "Service Retirement Application" completed by relator on July 22,
2013, and (3) a July 20, 2015 letter to relator from SERS that certifies that relator retired
effective June 1, 2013 on a service retirement.
          {¶ 35} 17. The July 17, 2013 letter to relator from the assistant superintendent
states:
                On April 17, 2013 Dr. Seth H. Vogelstein provided medical
                information regarding your Workers [sic] Compensation
                claim #11-859087 which states "I have reviewed Ms. Smith's
                medical records and examined her. I have also reviewed a
                written description of her job as a cook. It is my medical
                opinion that as a result of her November 14, 2011 injury, she
                cannot return to her former position of employment". On
                May 16, 2013 your physician, Dr. Glenn A. McClung,
                indicated that you have reached "maximum medical
                improvement". You have been on an unpaid Workers [sic]
                Compensation leave of absence from your position as Cook
                at the Middle School effective January 3, 2012 through
                June 30, 2013.

                The current negotiated Agreement between the Board of
                Education of the Fairfield City School District and the Ohio
                Association of Public School Employees Locals #205, #278
                and #568, Article 31; Unpaid Leaves of Absence, B1 states
                "Upon written request and written verification by the
                employee's physician, the Board of Education shall grant an
                unpaid medical leave of absence where illness or other
No. 15AP-912                                                                                   13


                 disability is the reason for the request, for a period of not
                 more than a total of two (2) years for the same illness or
                 disability." Per the negotiated agreement the two-year (2)
                 limit for your current leave of absence will expire January 3,
                 2014. Should you not be able to return to work by January 4,
                 2014, you must retire, otherwise resign or the District will
                 need to terminate your employment.

                 As this is now an unpaid personal medical leave of absence,
                 effective August 1, 2013 you will be responsible for the full
                 payment of the costs of any benefits you currently receive
                 from Fairfield City Schools. Please contact Sharon Revel to
                 discuss the cost of these benefits. If you choose not to pay for
                 the benefits, they will terminate effective August 1, 2013.

          {¶ 36} 18. On September 2, 2015, an SHO mailed an order refusing relator's
appeal from the SHO's order of August 10, 2015. The SHO's order of September 2, 2015
explains:
                 Pursuant to the authority of the Industrial Commission
                 under R C. 4123.511(E), it is ordered that the Injured
                 Worker's appeal, filed 08/24/2015, from the Staff Hearing
                 Officer order, issued 08/12/2015, be refused and that copies
                 of this order be mailed to all interested parties.

                 This appeal was reviewed by two (2) Staff Hearing Officers
                 on behalf of the Commission. Both Staff Hearing Officers
                 concur with this decision.

          {¶ 37} 18. On September 30, 2015, relator, Bonnie L. Smith, filed this mandamus
action.
Conclusions of Law:
          {¶ 38} It is the magistrate's decision that this court deny relator's request for a writ
of mandamus, as more fully explained below.
          {¶ 39} In her brief filed in this action on December 7, 2015, under "Statement of
Issues," (see Loc.R. 13(J)), relator sets forth two issues:
                 I. When the Industrial Commission file receives documents
                 acknowledged by the time-stamp "Industrial Commission
                 Cincinnati Office" with an IC-12 Appeal, the Staff Hearing
                 Officer must hold a hearing pursuant to ORC 4121.35(D) that
                 allows the parties to submit other evidence in support of the
                 issue on appeal or evidence to the contrary.
No. 15AP-912                                                                         14


               II. Under the circumstances set forth in Issue I, a Staff
               Hearing Officer may not refuse a hearing without stating the
               evidence relied upon, the law, or a valid reason for the
               refusal to hold a hearing.

(Relator's Brief, 1.)
                                  Relator's First Issue
       {¶ 40} R.C. 4121.35 provides:
               (A) Staff hearing officers shall consider and decide all
               matters specified in division (B) of this section. * * *

               (B) Except as provided in division (D) of this section, staff
               hearing officers have original jurisdiction to hear and decide
               the following matters:

               ***

               (2) Appeals from an order of a district hearing officer issued
               under division (C) of section 4123.511 of the Revised Code;

               ***

               (C) The decision of a staff hearing officer under division (D)
               of section 4123.511 of the Revised Code is the decision of the
               commission for the purposes of section 4123.512 of the
               Revised Code unless the commission hears an appeal under
               division (E) of section 4123.511 of the Revised Code.

               (D) Staff hearing officers shall hold hearings on all matters
               referred to them for hearing.

       {¶ 41} Here, relator seizes upon R.C. 4121.35(D) 's command that "[s]taff hearing
officers shall hold hearings on all matters referred to them for hearing."      Relator
concludes:
               Thus, the Court should issue a writ of mandamus ordering
               the Industrial Commission to vacate its Staff Hearing
               Decision that refused Relator's Appeal and order the Staff
               Hearing Officer to hold the hearing required by ORC
               4121.35(D).

(Relator's Brief, 10.)
No. 15AP-912                                                                               15


       {¶ 42} Interestingly, under the first issue, relator is not requesting a hearing before
the three-member commission on the appeal. Rather, relator is requesting that a writ
order an SHO to hear the matter allegedly referred.
       {¶ 43} Relator's argument regarding R.C. 4121.35(D) is seriously flawed.
Respondent Fairfield City Schools succinctly answers relator's argument when it states in
its brief "Smith's appeal to the SHO Order was not referred to an SHO for hearing."
(Respondent Fairfield City Schools Brief, 11.)
       {¶ 44} Rather, the SHO who mailed the order on September 2, 2015 refusing the
appeal was referred the matter under R.C. 4123.511(E) to determine, on behalf of the
commission, whether the commission will hear the appeal. Having determined that the
commission will not hear the appeal, the designated SHO appropriately notified the
parties under R.C. 4123.511(E).
                                  Relator's Second Issue
       {¶ 45} R.C. 4123.511(E) provides:
               Upon the filing of a timely appeal of the order of the staff
               hearing officer issued under division (D) of this section, the
               commission or a designated staff hearing officer, on behalf of
               the commission, shall determine whether the commission
               will hear the appeal. * * * If the commission or the
               designated staff hearing officer determines not to hear the
               appeal * * * the commission or the designated staff hearing
               officer shall issue an order to that effect and notify the
               parties and their respective representatives in writing of that
               order.

       {¶ 46} Citing State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481
(1983) and State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991), relator asserts
that the SHO's order mailed September 2, 2015 that refused relator's administrative
appeal to the three-member commission is an abuse of discretion because allegedly the
order fails to comply with Mitchell and/or Noll. The magistrate disagrees.
       {¶ 47} In Mitchell, the court stated:
               This appeal highlights a problem which is becoming
               increasingly prevalent; that is, the commission's failure to
               state with any precision the basis for its decisions. * * *

               For the reasons that follow, we will, when necessary,
               henceforth grant a writ of mandamus directing the
No. 15AP-912                                                                           16


                 commission to specify the basis of its decision. * * * In other
                 words, district hearing officers, as well as regional boards of
                 review and the Industrial Commission, must specifically
                 state which evidence and only that evidence which has been
                 relied upon to reach their conclusion, and a brief explanation
                 stating why the claimant is or is not entitled to the benefits
                 requested. Moreover, this court will no longer search the
                 commission's file for "some evidence" to support an order of
                 the commission not otherwise specified as a basis for its
                 decision.

Id. at 483-84.

         {¶ 48} The syllabus of Noll, states:

                 In any order of the Industrial Commission granting or
                 denying benefits to a claimant, the commission must
                 specifically state what evidence has been relied upon, and
                 briefly explain the reasoning for its decision.

         {¶ 49} Relator's argument has previously been addressed by this court in State ex
rel. Extendicare Health Servs., Inc. v. Indus. Comm., 10th Dist. No. 03AP-1201, 2004-
Ohio-5255.
         {¶ 50} In the Extendicare case, the claimant, Mahogney Harrison, sustained an
industrial injury. On February 27, 2003, Harrison's attending physician, Rajiu Yakhmi,
M.D., completed a C-84 certifying TTD compensation beginning February 26, 2003.
         {¶ 51} Following a hearing, a DHO awarded TTD compensation beginning
February 26, 2003 based upon Dr. Yakhmi's C-84.               The employer ("Extendicare")
administratively appealed to an SHO.
         {¶ 52} Following a July 14, 2003 hearing, an SHO issued an order affirming the
DHO's order.
         {¶ 53} Extendicare then filed a notice of appeal from the SHO's order of July 14,
2003. On August 27, 2003, another SHO mailed an order refusing the appeal.
         {¶ 54} Extendicare moved for reconsideration of the SHO's refusal order of
August 27, 2003.
         {¶ 55} On October 4, 2003, the commission mailed an order denying Extendicare's
request for reconsideration. Thereafter, Extendicare filed a mandamus action in this
court.
No. 15AP-912                                                                                17


       {¶ 56} Following a magistrate's decision recommending that this court deny
Extendicare's request for a writ, Extendicare filed objections to the magistrate's decision.
In overruling Extendicare's objections, this court explained:
                In its second objection, relator argues that the magistrate
                erred in failing to address relator's argument that the
                commission abused its discretion in refusing further appeal
                and refusing relator's request for reconsideration, without
                offering any explanation of the reasons underlying those
                decisions. Relator argues that the cases of State ex rel.
                Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481,
                483, 6 Ohio B. 531, 453 N.E.2d 721, and State ex rel. Noll v.
                Indus. Comm. (1991), 57 Ohio St.3d 203, 206, 567 N.E.2d
                245 require that the commission provide explanations of its
                reasoning in such decisions.

                In Noll, in which the Supreme Court of Ohio relied on its
                prior holding in Mitchell, the court held, "in any order of the
                Industrial Commission granting or denying benefits to a
                claimant, the commission must specifically state what
                evidence has been relied upon, and briefly explain the
                reasoning for its decision." Id. at syllabus. (Emphasis added.)
                We do not interpret the clear language employed by the court
                in Noll to require an explanation of the commission's
                reasoning when the commission refuses to hear a further
                appeal from a decision of a Staff Hearing Officer granting
                benefits to a claimant. A refusal of further appeal is not an
                "order" and does not grant or deny benefits to a claimant.

Id. at ¶ 4-5.

       {¶ 57} Accordingly, based upon the Extendicare case, the magistrate concludes
that the SHO's order mailed September 2, 2015 that refuses relator's administrative
appeal to the three-member commission is not an abuse of discretion nor does it present a
violation of Mitchell or Noll.
       {¶ 58} 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/ MAGISTRATE
                                               KENNETH W. MACKE
No. 15AP-912                                                                       18


                               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).
