[Cite as State ex rel. Gen. Motors Co. v. Webster, 2014-Ohio-2791.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel.                                   :
General Motors Company,
                                                        :
                 Relator,
                                                        :
v.                                                                       No. 13AP-931
                                                        :
Dionicia Webster and Industrial                                       (REGULAR CALENDAR)
Commission of Ohio,                                     :

                 Respondents.                           :

                                                        :


                                            D E C I S I O N

                                      Rendered on June 26, 2014


                 Bugbee & Conkle, LLP, and Mark S. Barnes, for relator.

                 Mary Brigid Sweeney Co. LLC, and Mary Brigid Sweeney,
                 for respondent Dionicia Webster.

                 Michael DeWine, Attorney General, and Stephen D. Plymale,
                 for respondent Industrial Commission of Ohio.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.

        {¶ 1} Relator, General Motors Company ("GM"), filed this action in mandamus,
seeking a writ to compel the Industrial Commission of Ohio to recalculate the average
weekly wage ("AWW") of Billy Webster, deceased.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
No. 13AP-931                                                                            2


the pertinent evidence and filed briefs.      The magistrate then issued a magistrate's
decision, appended hereto, which contains detailed findings of fact and conclusions of
law. The magistrate's decision includes a recommendation that we deny GM's request for
a writ of mandamus.
       {¶ 3} GM has filed objections to the magistrate's decision. Counsel for Dionicia
Webster, Billy Webster's widow, has filed a memorandum in response. The case is now
before the court for a full, independent review.
       {¶ 4} Webster died from complications associated with mesothelioma. He got
mesothelioma as a result of inhaling asbestos particles while he worked for GM. None of
this is in debate.
       {¶ 5} After his death, his widow applied for benefits from the Ohio's Workers'
Compensation System. GM, a self-insured employer, has consistently tried to minimize
the money it has to pay to Webster's widow, first resisting the death benefits and then
fighting recognition of the claim all the way into common pleas court in Defiance County.
       {¶ 6} GM initially failed to provide pay records for Webster, making computation
of his AWW difficult. A district hearing officer ("DHO") finally used records from the
Social Security Administration to assign AWW at the statutory maximum of $775.
       {¶ 7} GM argued that it owed the widow less money because Webster had retired
from GM before he died. The information before us indicates that Webster had shortness
of breath while on the job which led to his being hospitalized. Later that month, he had
surgery which revealed the mesothelioma. He never returned to work and died less than
one year later.
       {¶ 8} The commission used the date Webster's problems were diagnosed as
flowing from mesothelioma as the date to start the computation of AWW. Webster had
earned over $70,000 during the 12 months prior to diagnosis. The statutory maximum
was clearly appropriate, whether the start date for computing AWW has the date of
diagnosis or date of disability.
       {¶ 9} Our magistrate has set forth more detail about why the commission orders
are correct. We overrule the objections filed on behalf of GM and adopt the magistrate's
findings of fact and conclusions of law.
No. 13AP-931                                                                          3


      {¶ 10} The commission was clearly within its discretion to find his retirement was
not voluntary.   The assertion that the widow should be compensated at the state
minimum is without merit.
      {¶ 11} The request for a writ of mandamus is denied.
                                                     Objections overruled; writ denied.

                       SADLER, P.J., and O'GRADY, J., concur.
No. 13AP-931                                                                          4



                                  APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State of Ohio ex rel.                       :
General Motors Company,
                                            :
             Relator,
                                            :
v.                                                              No. 13AP-931
                                            :
Dionicia Webster and Industrial                            (REGULAR CALENDAR)
Commission of Ohio,                         :

             Respondents.                   :

                                            :


                        MAGISTRATE'S DECISION

                              Rendered on April 30, 2014


             Bugbee & Conkle, LLP, and Mark S. Barnes, for relator.

             Mary Brigid Sweeney Co. LLC, and Mary Brigid Sweeney,
             for respondent Dionicia Webster.

             Michael DeWine, Attorney General, and Stephen D. Plymale,
             for respondent Industrial Commission of Ohio.


                                  IN MANDAMUS

       {¶ 12} Relator, General Motors Company, has filed this original action requesting
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which calculated the average weekly wage ("AWW") of
Billy Webster ("decedent"), and ordering the commission to redetermine decedent's
AWW.
No. 13AP-931                                                                              5


Findings of Fact:


       {¶ 13} 1. On April 6, 2009, while at work, decedent felt short of breath and was
taken to the emergency room. Tests performed that day revealed the following: att. 2
       {¶ 14} [One] Large right side pleural effusion with near complete collapse of the
right lung.
       {¶ 15} [Two] Probable pleural mass in the upper part of the right hemithorax that
measures 1.5 cm in diameter suggesting a neoplastic process.
       {¶ 16} [Three] Right adrenal gland nodule measures approximately 1.7 cm in
diameter.
       {¶ 17} It shows decreased attenuation suggesting a benign nonfunctioning
adenoma.
       {¶ 18} [Four] Decreased attenuation lesion in the medial aspect of segment #5 of
the liver measures 1.5 cm in diameter. It cannot be fully characterized based on this study
alone. It may represent a cyst or a metastatic lesion.
       {¶ 19} 2. On May 6, 2009, a biopsy confirmed the following:           "[p]ositive for
malignancy. Malignant mesothelioma."
       {¶ 20} 3. Decedent commenced chemotherapy on May 21, 2009 and pursued a
second course of treatment immediately thereafter. Unfortunately, chemotherapy was
ultimately terminated because the tumor progressed.
       {¶ 21} 4. During the course of chemotherapy, decedent experienced fatigue,
numbness in his extremities, fevers, night sweats, joint and back pain, and shortness of
breath. Following chemotherapy, decedent experienced weight loss, decreased appetite, a
rash, sinus congestion, chronic shortness of breath, a persistent cough, joint achiness, and
swelling in his arm and right leg.
       {¶ 22} 5. Decedent never returned to work and retired effective August 1, 2009.
       {¶ 23} 6. Decedent died on March 19, 2010 from respiratory failure caused in
significant part by his mesothelioma.
       {¶ 24} 7. On July 15, 2011, decedent's widow, Dionicia Webster ("claimant"), filed
a First Report of an Injury, Occupational Disease or Death, stating:
No. 13AP-931                                                                          6


             Decedent was exposed to asbestos fibers while employed by
             GM Powertrain, causing him to develop and die from
             mesothelioma.

      {¶ 25} 8. Relator contested the claim, and, on October 3, 2012, the matter was
heard before a district hearing officer ("DHO"). The DHO granted claimant's application
for death benefits after finding decedent had developed mesothelioma as a result of an
injurious exposure to asbestos which ultimately lead to his death on March 19, 2010. The
DHO also found that, at the time of decedent's death, claimant was wholly dependent
upon him. The DHO concluded with the following directive to relator:
             Based on all of the above findings, this District Hearing
             Officer finds the Widow claimant has established a
             compensable death claim by a preponderance of the
             evidence.

             Medical, hospital and funeral expenses are ordered to be
             paid in accordance with the statute and the rules of the Ohio
             Bureau of Workers' Compensation and the Industrial
             Commission.

             The Self-Insuring Employer is hereby ordered to comply
             with the above findings.

             The DHO also listed the date of injury and date of death both
             as March 19, 2010.

      {¶ 26} 9. Relator filed an appeal and provided the following reason:

             Appealing the decision of the DHO 10/3/2012, await the
             hearing and decision of the SHO when scheduled.

             Compensation/benefits were NOT timely paid as mandated
             by R.C. 4123.511.

             Additional evidence will NOT be submitted.

(Emphasis sic.)

      {¶ 27} 10. Relator's appeal was heard before a staff hearing officer ("SHO") on
November 28, 2012. The SHO also granted claimant's application for death benefits filed
No. 13AP-931                                                                              7


July 15, 2011 and provided additional rationale. The SHO also listed the date of injury
and date of death both as March 19, 2010.
       {¶ 28} 11. Relator appealed the SHO order for the following reasons:
              Vacate the SHO order and disallow the claim. An evidentiary
              analysis reveals the preponderance of the probative evidence
              fails to establish sufficient injurious exposure to asbestos
              while working for this employer to establish a causal nexus
              to the death of Mr. Webster. As such, the widow-claimant
              has failed to meet her burden of proof. Therefore, the claim
              should be disallowed in its entirety.

              Compensation/benefits were timely paid as mandated by
              R.C. 4123.511.

              Additional evidence will be submitted.

       {¶ 29} 12. Relator's appeal was refused by order of the commission mailed
December 19, 2012.      This order also listed the date of injury and date of death as
March 19, 2010.
       {¶ 30} 13. Relator filed an appeal in the Defiance County Court of Common Pleas
in February 2013.
       {¶ 31} 14. Claimant's counsel sent a letter to relator's counsel on March 21, 2013
because claimant had not yet received benefits to which she was entitled. Specifically,
that letter provided:
              As you know I represent Mrs. Webster in her workers[']
              Compensation action against your client General Motors Co.
              On November 30, 2012 the Industrial Commission of Ohio
              allowed her claim for death benefits. Your client's appeal was
              refused by the Industrial Commission on December 19, 2012.
              As of this date, Mrs. Webster has yet to receive benefits
              which she has patiently been waiting to receive.

              To date she is entitled to receive the $5,500.00 in funeral
              costs and death benefits dating back to March 19, 2010.
              Please forward the back award to my office as soon as
              possible. You may send the funeral expenses directly to Mrs.
              Webster * * *. I will assume that the current benefits will be
              sent to her address as prescribed by law.

       {¶ 32} 15. In a letter dated March 25, 2013, counsel for relator responded, stating:
No. 13AP-931                                                                              8


             We are in receipt of your March 21, 2013 correspondence
             regarding the payment of funeral costs and death benefits in
             the above claim. Please supply us with documentation of the
             funeral expenses and General Motors will comply with the
             November 28, 2012 Staff Hearing Officer Order. However,
             upon review of the order, the Staff Hearing Officer failed to
             set forth General Motor's obligation to pay death benefits
             back to any date certain according to any specified rate.
             Unfortunately, unless and until the Commission orders
             specific payment of compensation, General Motors is unable
             to pay any death benefits.

      {¶ 33} 16. In a letter dated March 26, 2013, counsel for claimant requested an
expedited hearing on the issue of payment of death benefits.
      {¶ 34} 17. In response, counsel for relator replied on April 1, 2013, as follows:
             We are in receipt of your March 26, 2013 correspondence in
             the above claim. Please be advised we do not object to an
             expedited hearing on the issue of the payment of the death
             benefits. Also, please be aware General Motors has not
             obstructed payment of benefits in this claim, nor does the
             company have any interest in obstructing payment of
             benefits. However, as a self-insured employer, General
             Motors is required to comply with the orders of the
             Commission and the Bureau. As you are aware, the
             Commission speaks through its orders. When an order fails
             to set forth with specificity the obligation of the self-insured
             employer, the employer cannot be expected to infer
             information the Commission or its hearing officers have
             excluded from the order. In the present claim, the
             Commission did not order the payment of compensation or
             specify the rate of compensation.

             Once the Commission sets forth an order specifying General
             Motors' obligation to pay compensation benefits, General
             Motors will comply with the order in accordance with the
             Commission rules. As per our March 22, 2013
             correspondence, a copy of which is attached, please provide
             us with documentation (i.e. an invoice) for the funeral
             services and we will instruct General Motors to reimburse
             Ms. Webster accordingly, up to the statutory maximum of
             $5,500.00.

(Emphasis sic.)
No. 13AP-931                                                                            9


      {¶ 35} 18. Notice of hearing was mailed April 19, 2013. The notice included the
following:
             Pursuant to Administrative Code 4121-3-13 (D) and (E) a self
             insuring employer or its authorized representative is
             required to submit to the IC and injured worker prior to a
             hearing on contested claims the following previously unfiled
             information: medical reports or consultations as provided by
             the rule, the FROI or equivalent, a statement listing the
             specifically allowed conditions, FWW or AWW unless set by
             the IC, last payment date of compensation or medical bill
             where the statute of limitations is an issue, last payment date
             of medical if the issue is a dispute over entitlement of
             medical benefits, or date of last compensation payment
             where the issue is entitlement to compensation.

      {¶ 36} 19. A hearing was held before a DHO on May 7, 2013. The DHO noted that,
despite the fact that relator had filed a notice of appeal in the Defiance County Court of
Common Pleas pursuant to R.C. 4123.512, that appeal did not stay the payment of
compensation or medical benefits under the award. Thereafter, the DHO discussed the
correspondence between claimant's counsel and relator's counsel, specifically noting
relator's explanation for why it had not yet made any payments to claimant, stating:
             It is the finding of this District Hearing Officer that the Staff
             Hearing Officer who conducted the hearing on 11/28/2012,
             was not able to set "any specified rate", due to the
             Employer's failure to comply with Ohio Administrative Code
             Section 4121-3-13 (E) (3), as the Self-Insuring Employer
             failed to submit, "the information used to calculate the full
             weekly wage or average weekly wage, depending on which is
             at issue", which said code section provides "shall be
             submitted unless the full weekly wage or average weekly
             wage had been previously established by a final order of the
             Commission."

             It is the further finding of this District Hearing Officer that
             the Employer was reminded of its obligation to submit that
             information, pursuant to Ohio Administrative Code Section
             4121-3-13, on the face of the Notice of Hearing, which was
             issued for the District Hearing Officer[']s Hearing of
             10/03/2012 and the Staff Hearing Officer's hearing of
             11/28/2012. That Notice of Hearing specifically stated that,
             "Pursuant to Administrative Code 4121-3-13 (D) and (E), a
             self-insuring employer, or its authorized representative, is
No. 13AP-931                                                                           10


             required to submit to the IC and injured worker, prior to a
             hearing on contested claims, the following previously unfiled
             or equivalent, a statement listing the specifically allowed
             conditions, FWW or AWW unless set by the IC …".

             Furthermore, the Self-Insuring Employer received a similar
             notice in regard to today's hearing on the issue of payment of
             death benefits. Despite that language on the Notice of
             Hearing for today's hearing, the Employer, once again, has
             failed to submit the information necessary for calculation of
             the full weekly wage and average weekly applicable to this
             claim.

(Emphasis sic.)

      {¶ 37} After finding that relator had failed to submit the information necessary for
the commission to have calculated the AWW, the DHO made a determination based upon
the best information available, records from the Social Security Administration. The
DHO ordered the payment of death benefits as follows:
             Therefore, this District Hearing Officer relies upon the best
             information available, which is the Social Security records
             which were certified by the Division Director of the Social
             Security Administration on 02/27/2010. Those records
             indicate that the Injured Worker had social security earnings
             for the year of 2008 totaling $71,524.71.

             Therefore, it is the finding of this District Hearing Officer
             that the deceased-claimant's earnings would qualify the
             widow-claimant for the maximum weekly death award
             payment, pursuant to Ohio Revised Code Section 4123.59
             (B).

             It is the further finding of this District Hearing Officer that
             ORC Section 4123.59 provides that the benefits in case of
             death shall commence as follows: "The payment as provided
             in this section shall continue from the date of death of an
             injured or disabled employee until the death or remarriage of
             such dependent spouse." Therefore, the statement by the
             employer's legal counsel that, "the Staff Hearing Officer
             failed to set forth General Motor's obligation to pay death
             benefits back to any date certain" is disingenuous, at best, as
             the self-insuring employer[']s obligation to pay death
             benefits back to "the date of death of an injured worker" is
             clearly set out by the statute itself.
No. 13AP-931                                                                             11



              Therefore, it is the order of this District Hearing Officer that
              the Self-Insuring Employer is hereby ordered to pay death
              benefits to the surviving spouse / widow-claimant, Dionicia
              Webster, in the amount of $775.00 per week, commencing
              from the date of death of 03/19/2010 and continuing
              thereafter without suspension, pursuant to Ohio Revised
              Code Section 4123.59, until the death or remarriage of such
              dependent spouse, subject to the continuing jurisdiction of
              the Industrial Commission, pursuant to Ohio Revised Code
              Section 4123.52.

(Emphasis sic.)

       {¶ 38} Furthermore, the DHO ordered the payment of funeral expenses, stating:

              It is the further finding of this District Hearing Officer that
              the widow claimant, Dionicia Webster paid the Den Herder
              Funeral Home, Inc., the sum of $11,472.22 for the funeral of
              deceased-claimant Billie Frank Webster.

              Therefore, it the further order of this District Hearing Officer
              that the Self-Insuring Employer is hereby ordered to
              reimburse the widow claimant, Dionicia Webster, the sum of
              $5,500.00 for the payment of funeral benefits, pursuant to
              Ohio Revised Code Section 4123.66 (A).

(Emphasis sic.)

       {¶ 39} As with the prior orders, this DHO order also set forth the date of injury and
date of death as March 19, 2010.
       {¶ 40} 20. Relator appealed and the matter was heard before an SHO on June 27,
2013. At this time, relator argued that decedent had retired for reasons unrelated to the
allowed conditions in his claim; therefore, relator contended that death benefits should be
paid at the statewide minimum because decedent had less than $6,000 in earnings for the
year preceding his death. The SHO discussed the parties' arguments and determined that
decedent did not take a voluntary retirement, stating:
              Ms. Webster's Counsel agreed with the Average Weekly
              Wage setting such that the statewide maximum rate of
              $775.00 applies. The Employer argued that the Death
              Benefits payment should be at the statewide minimum, as
              Mr. Webster had been retired for almost a year before the
No. 13AP-931                                                                     12


             date of his death and had earnings of $5[,]617.56, which
             would lead to an Average Weekly Wage of $108.03.
             Therefore, the Self-Insuring Employer argued that the Death
             Benefits should be paid at the statewide minimum rate.

             The Self-Insuring Employer made argument that the date of
             disability has been set at 03/19/2013 [sic]. Argument was
             made that the date of injury (diagnosis) was set at
             03/19/2013 [sic], therefore, there could be no disability due
             to the allowed condition prior to that date. A review of the
             body of the District Hearing Officer's order issued
             10/20/2012 shows that the Date of Death was found to be
             03/19/2013 [sic]. This order did not specifically set the Date
             of Diagnosis or injury. A review of the body of the Staff
             Hearing Officer's order issued 11/30/2012 shows that the
             date of death was found to be 03/19/2013 [sic], but there
             was no specific finding of a Date of Diagnosis or date of
             disability.

             Argument was made by Ms. Webster's Counsel that Mr.
             Webster retired due to his terminal illness. The Self-Insuring
             Employer argued that Mr. Webster retired at age 60
             unrelated to this claim. Minimal information regarding the
             retirement is on file. However, it is clear that the last date
             worked was 04/06/2009 (Employer print out attached to
             memorandum filed 06/27/2013); Mr. Webster had some
             sort of medical event while at work leading to hospitalization
             on 04/06/2009 (04/15/2009 office note of Dr. Oukley) [sic];
             and Mr. Webster was in surgery for his cancer on
             04/30/2009 (05/15/2009 chart note of Dr. Oukley).

             The medical records of Dr. Oukley [sic] are found to support
             the Widow Claimant's argument that Mr. Webster did not
             take a voluntary retirement for reasons other than his
             terminal illness. Therefore, this Staff Hearing Officer finds
             disability due to the allowed condition began on 04/06/2009
             based upon the records of Dr. Oukley [sic] dated 04/15/2009
             and 05/14/2009.

      {¶ 41} Thereafter, the SHO discussed the evidence relator had filed and also
concluded that decedent's AWW should be set at the statewide maximum, stating:
      {¶ 42} O.R.C. 4123.61 currently states:
             "The average weekly wage of an injured employee at the time
             of the injury is the basis upon which to compute benefits.
No. 13AP-931                                                                            13



             In death, permanent total disability claims, permanent
             partial disability claims, and impairment of earnings claims,
             the claimant's or the decedent's average weekly wage for the
             year preceding the injury or the date the disability due to the
             occupational disease begins is the weekly wage upon which
             compensation shall be based. In ascertaining the average
             weekly wage for the year previous to the injury, or the date
             the disability due to the occupational disease begins any
             period of unemployment due to sickness, industrial
             depression, strike, lockout, or other cause beyond the
             employee's control shall be eliminated."

             The Average Weekly Wage is therefore found to be
             appropriately based upon Mr. Webster's earnings for the
             year prior to his disability which began 04/06/2009.

             The Wages are * * * on file indicate earnings of $70,647.21
             from 04/06/2008 through 04/05/2009. These earnings
             divided by 52 weeks equals an Average Weekly Wage of
             $1[,]358.60. Therefore, the appropriate Death Benefits rate
             would be the statewide maximum of $776.00 per week.

             Therefore, it is the order of the Staff Hearing Officer that the
             Self-Insuring Employer is hereby ordered to pay death
             benefits to the surviving Spouse/Widow, Dionicia Webster,
             in the amount of $775.00 per week, beginning on the date of
             death, 03/19/2009 [sic], and continuing thereafter without
             suspension pursuant to Ohio Revised Code Section 4123.59,
             until the death or remarriage of such dependent spouse,
             subject to the continuing jurisdiction of the Industrial
             Commission pursuant to Ohio Revised Code Section 4123.52.

      {¶ 43} As with the prior orders, this SHO order also set forth the date of injury and
date of death as March 19, 2010.
      {¶ 44} 21. Relator appealed and asserted that the SHO's reliance on the office
records of Dr. Gary E. Okuley, M.D., was improper because neither office note supported
the SHO's contention that decedent was disabled beginning April 6, 2009. Specifically,
relator argued:
             Because the Staff Hearing Officer incorrectly found Mr.
             Webster was disabled as of April 6, 2009, and because both
             the District Hearing Officer order and Staff Hearing Officer
             order allowing the claim set the date of injury or disability as
No. 13AP-931                                                                         14


             March 19, 2010, the order setting the average weekly wage as
             $775.00 is incorrect and based on both mistakes of fact and
             law.

      {¶ 45} 22. The matter was heard before the commission on August 20, 2013. The
commission granted relator's appeal finding that the SHO had failed to specify a date of
diagnosis and modified the SHO's to reflect that change. In all other respects the SHO's
order was affirmed. The commission ultimately concluded that death benefits should be
paid at the statewide maximum. Specifically, the commission explained:
             The Commission finds, pursuant to the prior order of the
             Staff Hearing Officer issued 11/30/2012, the widow-
             claimant's claim is compensable. Specifically, the Staff
             Hearing Officer found the widow-claimant's husband, Billie
             Webster (Decedent), had contracted mesothelioma as a
             result of his cumulative exposure to asbestos and asbestos
             products that was substantial and extensive in nature and
             occurring in the course of and arising out of his employment
             with the Employer as a furnace operator over a period of
             years. The Staff Hearing Officer further found the Decedent's
             death had resulted from that diagnosis and occupational
             exposure. However, the Commission finds in the order
             issued 11/30/2012, the Staff Hearing Officer did not specify a
             date of diagnosis for the occupational disease, resulting in
             the Decedent's death, nor was the weekly rate specified at
             which the Employer was to award death benefits.

             The Commission finds the date of diagnosis for this
             occupational disease-related death claim is 05/06/2009, the
             date of the surgical pathology consultation report from
             Dennis LeGolvan, M.D., indicating the results of the
             Decedent's pleural biopsies, performed on 05/04/2009,
             were positive for mesothelioma. The Commission further
             finds for purposes of determining the Decedent's average
             weekly wage pursuant to R.C. 4123.61 and the resulting
             weekly rate of death benefits payable to the widow-claimant,
             the calculation is properly based upon the Decedent's gross
             earnings in the year prior to 05/06/2009. The Commission
             finds the wage records on file documenting the Decedent's
             gross wages during the period from 05/06/2008 through
             05/06/2009, demonstrate that two-thirds of the Decedent's
             average weekly wage would exceed the statewide maximum
             rate of $775.00 per week for death benefits in a claim with a
             date of death occurring in 2010. Accordingly, the
No. 13AP-931                                                                               15


              Commission sets the weekly rate of death benefits payable to
              the widow-claimant at $775.00, the statewide maximum
              rate, pursuant to the formula set forth in R.C. 4123.59 and
              Memo H6 of the Industrial Commission Policy Statements
              and Guidelines.

       {¶ 46} For the first time, the commission's order set forth decedent's date of
diagnosis as May 6, 2009 and his date of death as March 19, 2010.
       {¶ 47} 23. Thereafter, relator, General Motors Company, filed the instant
mandamus action in this court.
Conclusions of Law:


       {¶ 48} Relator argues that the commission abused its discretion when it changed
the nature of decedent's claim from an injury claim to an occupational disease claim and
used decedent's date of diagnosis instead of the already determined date of injury to
calculate his AWW. Relator also argues that the commission abused its discretion by
finding that decedent's retirement was involuntary and in setting his AWW at the
statewide maximum rate.
       {¶ 49} For the reasons that follow, the magistrate rejects relator's arguments and
finds the commission did not abuse its discretion.
       {¶ 50} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 51} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
No. 13AP-931                                                                             16


discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 52} Relator makes much of the fact that, at the top of the initial commission
orders, decedent's "date of injury" is set forth as March 19, 2010, the same day decedent
died. Relator asserts that the commission must have decided to treat this claim as an
injury claim and not an occupational disease claim. Such a conclusion would benefit
relator because relator wants this court to find that March 19, 2010 is the proper date the
commission must use to calculate decedent's AWW. When the March 19, 2010 date is
used, decedent's AWW is based on the approximately $6000 decedent earned in the
preceding year and would result in decedent's AWW being set at the statewide minimum
of $387.50. Instead, the commission used May 6, 2009, the date of diagnosis, to calculate
decedent's AWW and set decedent's AWW at the statewide maximum of $775.
       {¶ 53} Relator appears to advance the following theories to support its assertion:
(1) the commission speaks through its orders and clearly decided to treat this as an injury
claim and not an occupational disease claim; and (2) principles akin to res judicata apply
and the commission could not change the claim from an injury claim to an occupational
disease claim. For the reasons that follow, the magistrate disagrees.
       {¶ 54} First, without citing every case involving mesothelioma, the magistrate
notes that mesothelioma has consistently been considered an occupational disease. This
disease has a long latency period. The magistrate did not find any cases where it was
treated as an injury.
       {¶ 55} Second, this claim is somewhat unusual. Ordinarily, the injured worker
files the claim. Here, decedent died 10 months after the date of diagnosis and never filed
a claim for benefits. Instead, because decedent had already died, his surviving spouse
(claimant) filed this claim as a death claim.      As claimant's counsel points out, the
surviving spouse's death claim did not arise until decedent's death on March 19, 2010.
       {¶ 56} Third, because relator failed to supply wage information at the initial
hearings, the commission did not initially set the date to be used in calculating decedent's
AWW. However, there are three dates which are clearly undisputed: (1) April 6, 2009,
No. 13AP-931                                                                             17


the day decedent left work due to symptoms caused by his yet to be diagnosed
mesothelioma and the last day he worked; (2) May 6, 2009, the day decedent's
mesothelioma was diagnosed; and (3) March 19, 2010, the day decedent died.
       {¶ 57} Fourth, by finally noting the date of diagnosis on the face of its orders, the
commission did not abuse its discretion. Principles akin to res judicata do not apply since
that issue was never fully, fairly, actually, or necessarily litigated. The commission never
addressed the nature of the claim beyond the fact that it was a death claim.
       {¶ 58} This court must determine whether or not the commission abused its
discretion when it set decedent's AWW at the statewide maximum. For the reasons that
follow, the magistrate finds that the commission did not abuse its discretion.
       {¶ 59} R.C. 4123.59(B) provides in pertinent part:
              If there are wholly dependent persons at the time of the
              death, the weekly payment is sixty-six and two-thirds per
              cent of the average weekly wage, but not to exceed a
              maximum aggregate amount of weekly compensation which
              is equal to sixty-six and two-thirds per cent of the statewide
              average weekly wage as defined in division (C) of section
              4123.62 of the Revised Code, and not in any event less than a
              minimum amount of weekly compensation which is equal to
              fifty per cent of the statewide average weekly wage as defined
              in division (C) of section 4123.62 of the Revised Code,
              regardless of the average weekly wage; provided however,
              that if the death is due to injury received or occupational
              disease first diagnosed after January 1, 1976, the weekly
              payment is sixty-six and two-thirds per cent of the average
              weekly wage but not to exceed a maximum aggregate amount
              of weekly compensation which is equal to the statewide
              average weekly wage as defined in division (C) of section
              4123.62 of the Revised Code.

              R.C. 4123.61 provides in pertinent part:
              The average weekly wage of an injured employee at the
              time of the injury or at the time disability due to the
              occupational disease begins is the basis upon which to
              compute benefits.

              ***

              In death, permanent total disability claims, permanent
              partial disability claims, and impairment of earnings claims,
No. 13AP-931                                                                              18


              the claimant's or the decedent's average weekly wage for the
              year preceding the injury or the date the disability due to
              the occupational disease begins is the weekly wage
              upon which compensation shall be based.

(Emphasis added.)

       {¶ 60} Two issues are relevant: (1) did the commission abuse its discretion when it
used the date of diagnosis as the date upon which to calculate decedent's AWW; and (2)
did the commission abuse its discretion by finding that decedent's retirement was not
voluntary.
       {¶ 61} The magistrate finds: (1) the commission did abuse its discretion by using
the date of diagnosis as the date from which to calculate decedent's AWW because R.C.
4123.61 specifically identifies the date of disability as the proper date; and (2) the
commission did not abuse its discretion by determining that decedent's retirement was an
involuntary departure and finding that decedent's date of disability was April 6, 2009.
       {¶ 62} A plain reading of R.C. 4123.61 leads to one conclusion:           the date of
disability is the proper date to use to calculate AWW. This court came to the same
conclusion in State ex rel. Lemke v. Brush-Wellman, 10th Dist. No. 95AP-735 (Apr. 23,
1996), when this court found the commission abused its discretion when it relied on
White v. Mayfield, 37 Ohio St.3d 11 (1988), and used the date of diagnosis as the date
from which to calculate the AWW of an injured worker whose claim was allowed for
berylliosis. Finding that White did not apply, this court stated:
              [In White] the court was dealing with R.C. 4123.85 which
              sets forth the statute of limitations for a workers'
              compensation claim. The version of R.C. 4123.85 in effect at
              that time provided as follows:

              " 'In all cases of occupational disease, or death resulting from
              occupational disease, claims for compensation or benefits
              shall be forever barred unless, within two years after the
              disability due to the disease began, or within such longer
              period as does not exceed six months after diagnosis of the
              occupational disease by a licensed physician or within two
              years after death occurs, application is made to the industrial
              commission or to the employer in the event such employer
              has elected to pay compensation or benefits directly.' "
No. 13AP-931                                                                            19


              The court stated that, for purposes of R.C. 4123.85, disability
              due to an occupational disease shall be deemed to have
              begun: (1) on the date the claimant first became aware
              through medical diagnosis that he was suffering from the
              disease; (2) on the date the claimant first received medical
              treatment for the disease; or (3) on the date that claimant
              first quit work on account of the disease, whichever is the
              latest. Id. at 14. By its very language, White answered the
              following question: when does the statute of limitations
              begin to run on a claim for compensation based upon an
              occupational disease? White does not set forth the law
              applicable in interpreting the date of disability for purposes
              of R.C. 4123.61. As such, the reliance of both the magistrate
              and the commission on White is misplaced.

              ***

              This court finds that the commission erred in applying the
              rationale of White v. Mayfield to the facts of the present case
              and abused its discretion in failing to set a "date of
              disability," for purposes of awarding AWW.

(Footnote omitted.) Id. at 2, 6.


       {¶ 63} As such, the commission's use of the date of diagnosis here as the date from
which to calculate decedent's AWW constitutes an abuse of discretion. The proper date is
the date of disability—the date decedent became unable to work due to the allowed
conditions in his claim. However, for the reasons that follow, no writ of mandamus is
necessary.
       {¶ 64} As noted in the commission's August 20, 2013 order, the prior SHO order
from the June 27, 2013 hearing was modified, but not vacated. As such, the commission
left in place the SHO's determinations that decedent's date of disability was April 6, 2009
and that decedent's retirement was not voluntary. Relator argues that the evidence relied
upon by the SHO does not constitute some evidence. Specifically, relator contends that
the April 15, and May 15, 2009 office and chart notes of Dr. Okuley, as well as the
arguments made by claimant's counsel, do not constitute some evidence that decedent's
retirement was not voluntary.
       {¶ 65} The SHO stated as follows:
No. 13AP-931                                                                          20


              Minimal information regarding the retirement is on file.
              However, it is clear that the last date worked was
              04/06/2009 (Employer print out attached to memorandum
              filed 06/27/2013); Mr. Webster had some sort of medical
              event while at work leading to hospitalization on
              04/06/2009 (04/15/2009 office note of Dr. Oukley) [sic];
              and Mr. Webster was in surgery for his cancer on
              04/30/2009 (05/15/2009 chart note of Dr. Oukley).

              The medical records of Dr. Oukley [sic] are found to support
              the Widow Claimant's argument that Mr. Webster did not
              take a voluntary retirement for reasons other than his
              terminal illness. Therefore, this Staff Hearing Officer finds
              disability due to the allowed condition began on 04/06/2009
              based upon the records of Dr. Oukley [sic] dated 04/15/2009
              and 05/14/2009.

       {¶ 66} The SHO relied on the following evidence to determine the date of
decedent's disability and find that decedent's retirement was not voluntary: (1) decedent
last worked on April 6, 2009; (2) decedent had some sort of medical event while at work
on April 6, 2009; (3) the fact that decedent was hospitalized on April 6, 2009; (4)
decedent was in surgery on April 30, 2009; and (5) decedent never returned to work. The
SHO specifically pointed to relator's memorandum filed June 27, 2013 and Dr. Okuley's
April 15, and May 15, 2009 office notes.
       {¶ 67} In relying on Dr. Okuley's April 15, 2009 office note, the SHO noted that
office note indicated that decedent had a medical event on April 6, 2009 which led to his
being hospitalized. That office note provides as follows:
              SUBJECTIVE: Billie is here for followup after recent
              hospitalization for AICD discharge on April 6th while at
              work. He had no loss of consciousness. Felt a little dizzy at
              the time, but no real chest pain, or palpitations. He felt the
              AICD discharge. He was admitted to the hospital for
              evaluation. * * * Also had thoracentesis of about 750 mL on
              April 6th during his hospitalization, but I do not have the
              results back on the fluid. He saw Dr. Tita April 8th, and by
              his description, it sounds like they are moving towards
              possible pleurodesis in Toledo. He has followup with the
              cardiologist April 22nd. Currently, he reports he feels a little
              fatigued, but his shortness of breath has improved since the
              thoracentesis. Denies any chest pain, he is unaware of any
              palpitations, or recurrent AICD discharges.
No. 13AP-931                                                                             21



              ***

              OBJECTIVE: * * * Lungs notable in that he still has some
              diminished breath sounds in the right side. No significant
              wheezing, or rhonchi.

              ASSESSMENT/PLAN:

              [One] Pleural effusion. He had recent thoracentesis, but I do
              not have copies of the results of that. He is unaware of any
              concern for a malignant effusion. He has followup with Dr.
              Tita. It seems like they are working towards a possible
              pleurodesis in Toledo.

              [Two] AICD discharge April 6th x1. No loss of consciousness.
              No real prodromal symptoms other than he felt just a little
              lightheaded. I do not have the results of whether the AICD
              was downloaded at that time. He does have followup with his
              cardiologist April 22nd. He is to report to the emergency
              room immediately for any recurrent discharges, palpitations,
              chest pain, or other concerns.

       {¶ 68} The SHO also discussed Dr. Okuley's May 15, 2009 chart note which
discussed his surgery and provided:
              SUBJECTIVE: * * * He had lung surgery April 30, with
              removal of pleural effusion, likely malignant, and pleurodesis
              procedure, by description. Unfortunately, biopsies of
              scattered pleural lesions seems to be consistent with
              mesothelioma.

       {¶ 69} These two office notes are evidence that decedent last worked for relator on
April 6, 2009 and, due to the mesothelioma, he did not return to work. In its brief, relator
points to numerous references which were made while decedent was undergoing
chemotherapy and argues that decedent was actually doing well. However, the magistrate
notes the fact that decedent was tolerating chemotherapy well is not, as relator argues,
evidence that decedent was able to return to work.            Instead, the fact that the
chemotherapy was not successful and the tumor increased is evidence that the
mesothelioma did, in fact, keep decedent from returning to work with relator.
No. 13AP-931                                                                            22


       {¶ 70} Relator cites two cases where injured workers developed occupational
diseases, specifically, mesothelioma and asbestosis, retired from work, later filed claims,
and ultimately died as a result of those occupational diseases. In both cases, the Supreme
Court of Ohio found that the injured workers' retirements were voluntary. Relator argues
that those cases warrant the same determination here: that decedent's retirement was
voluntary and not related to his mesothelioma.         For the reasons that follow, the
magistrate disagrees.
       {¶ 71} The first case is State ex rel. Thompson v. Ohio Edison Co., 85 Ohio St.3d
290 (1999). In that case, Charles Thompson retired from his job with Ohio Edison
Company on April 1, 1991. At the time, he was not experiencing any symptoms. Two
years later, on February 22, 1993, Thompson was hospitalized complaining of shortness of
breath, and, on March 8, 1993, Thompson was diagnosed with mesothelioma. Less than
three weeks later, Thompson died.
       {¶ 72} Thompson's widow applied for death benefits and the commission set the
amount of death benefits at $230 per week. Thompson's widow asked the commission to
reconsider and determine Thompson's AWW by dividing his wages for the last year of
employment by 52. The commission did not and she filed a mandamus action, wherein
she argued that the rate of death benefits set by the commission was substantially unjust
and merited a departure from R.C. 4123.61's standard AWW formula because special
circumstances existed. The Supreme Court disagreed finding that Thompson had no
future compensation to lose as he had withdrawn from the labor market without evidence
of an intent to re-enter the workforce. The court found that Thompson's retirement was
voluntary and not related to his mesothelioma.
       {¶ 73} The other case relator cites is State ex rel. Hiatt v. Indus. Comm., 99 Ohio
St.3d 32, 2003-Ohio-2453. James F. A. Knowles applied for a normal service retirement
in September 1985 when he was 65 years of age. Knowles' retirement was to be effective
three months later. Prior to the effective date, Knowles saw a physician complaining of
minimal respiratory difficulties. His physician diagnosed asbestosis, opined that Knowles
was 25 percent impaired, and instructed him to have yearly pulmonary tests, as well as an
annual vaccination against pneumonia and flu.
No. 13AP-931                                                                          23


      {¶ 74} Four years later, in 1989, the commission allowed an occupational disease
claim for asbestosis and specifically noted that Knowles had sustained no compensable
lost time. In 1992, Knowles was still doing well. Chest x-rays taken at that time led his
physician to suspect primary bronchogenic carcinoma and further testing was
recommended; however, Knowles refused further testing because he was feeling well.
Unfortunately, Knowles died from metastatic lung cancer four years later in 1996.
      {¶ 75} The commission allowed Knowles' widow the minimum death benefit
payable for the year preceding Knowles' death pursuant to R.C. 4123.59. Knowles' widow
sought an increase in the AWW asking that it be determined for the year prior to the
diagnosis of asbestosis rather than the standard AWW for the year prior to the onset of
disability. The commission disagreed citing the Thompson decision.
      {¶ 76} In rejecting her arguments, the Supreme Court stated:
             [Knowles' widow] generally claims that the commission
             should have found that decedent's diagnosis date governed
             the award of death benefits and that decedent's AWW should
             be calculated based upon earnings for the year prior to that
             date. This court has previously resisted, however, pegging a
             claimant's disability date to the date of diagnosis, noting
             instead that disability is the inability to work. State ex rel.
             Preston v. Peabody Coal Co. (1984), 12 Ohio St.3d 72, 73-74,
             12 OBR 63, 465 N.E.2d 433. [Knowles' widow] reluctantly
             concedes—as she must—that her decedent had no legally
             cognizable date of disability.

             ***

             [Knowles' widow] seeks to distinguish Thompson by arguing
             that her decedent—unlike Thompson—worked the year prior
             to diagnosis. While true, it is an irrelevant distinction, since
             date of diagnosis is not germane to compensation
             calculation. Accordingly, [Knowles' widow]'s assertions
             concerning lack of disability and character of disease merely
             echo those already discussed and discarded in Thompson
             and do not advance her cause.

             [Knowles' widow] also claims that the commission's
             calculation penalizes dependents of those with long-latency
             occupational diseases by arguing the concepts of "zero
             AWW" and "zero compensation" interchangeably. But zero
             AWW does not translate into no compensation. R.C.
No. 13AP-931                                                                              24


              4123.59(B) specifically states that dependents of those killed
              by industrial causes must receive at least 50 percent of the
              statewide AWW. Moreover, since the purpose of workers'
              compensation benefits is to replace future earnings,
              [Knowles' widow]'s pursuit of wages that her decedent long
              ago voluntarily relinquished by his retirement from the labor
              force for reasons unrelated to any industrial injury or
              occupational disease.

(Emphasis sic.) (Footnote omitted.) Id. at ¶ 7, 11-12.

       {¶ 77} In the above cases, both Thompson and Knowles retired before they
experienced any symptoms, disabling or otherwise, from the occupational diseases. In
fact, no argument was even made that their retirements were based at all on those
diseases. Here, there is some evidence in the record from which the commission could
determine that decedent went to the hospital on April 6, 2009 because he was
experiencing symptoms directly related to the mesothelioma; decedent then had surgery,
followed by chemotherapy, followed by his death 10 months after the date of diagnosis
and 11 months after he last worked. This constitutes some evidence that decedent was
disabled as of April 6, 2009 and his retirement was based in part on the mesothelioma.
As such, the magistrate finds the commission did not abuse its discretion by finding
decedent's retirement was not voluntary.
       {¶ 78} While the commission improperly used the date of diagnosis to calculate
decedent's AWW, the magistrate finds that, because the date of diagnosis was one month
after the date of disability, returning the matter to the commission is unnecessary since
the AWW of decedent will remain at the statewide maximum.
       {¶ 79} To the extent relator argues that the commission relied on statements made
by counsel which do not constitute some evidence upon which the commission could rely,
the magistrate notes the commission cited to the specific evidence above enumerated, that
does support the commission's determination. As such, even if the commission relied in
part on counsel's statements, the other evidence cited by the commission constitutes some
evidence supporting the commission's ultimate determination.
       {¶ 80} Based on the foregoing, it is this magistrate's decision that this court should
deny relator's request for a writ of mandamus.
No. 13AP-931                                                                   25




                                       /S/ MAGISTRATE
                                       STEPHANIE BISCA BROOKS


                       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).
