[Cite as State ex rel. Witt v. Indus. Comm. et al., 2017-Ohio-554.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio, ex rel.                                    :
Billy R. Witt, Jr.,
                                                          :
                 Relator,                                                No. 15AP-804
                                                          :
v.                                                                    (REGULAR CALENDAR)
                                                          :
Industrial Commission of Ohio et al.,
                                                          :
                 Respondents.
                                                          :




                                           D E C I S I O N

                                     Rendered on February 16, 2017


                 On brief: Law Office of Thomas Tootle, and Thomas Tootle,
                 for relator.

                 On brief: Michael DeWine, Attorney General, and Kevin J.
                 Reis, for respondents Industrial Commission of Ohio and
                 Administrator, Bureau of Workers' Compensation.

                 On brief: Robert W. Bright, for respondent Christian
                 Morris Construction, Inc.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.
        {¶ 1} Relator, Billy R. Witt, Jr., has filed an original action requesting this court to
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate an order of its staff hearing officer ("SHO") to the extent it
adjusts the full weekly wage ("FWW") and average weekly wage ("AWW"), and to enter an
No. 15AP-804                                                                            2

amended order holding that respondent Ohio Bureau of Workers' Compensation
("bureau") did not have jurisdiction to issue an order adjusting FWW and AWW.
      {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, the matter was referred to a magistrate of this court who issued the appended
decision, including findings of fact and conclusions of law.       In that decision, the
magistrate recommended that this court issue a writ of mandamus ordering the
commission to vacate the June 25, 2015 order of its SHO to the extent it adjusts FWW and
AWW, and to enter an amended order holding that the bureau lacked jurisdiction to issue
its March 2, 2015 order adjusting FWW and AWW.
      {¶ 3} The commission has filed objections to the magistrate's decision, arguing
that the magistrate erred: (1) by holding the bureau lacked authority to recalculate FWW
and AWW because the issue was not raised administratively and thus has been waived for
review in mandamus, (2) in ruling that the bureau must file an application under R.C.
4123.52 in order for either the bureau or the commission to exercise its continuing
jurisdiction, and (3) in interpreting and applying the Supreme Court of Ohio's decision in
State ex rel. Drone v. Indus. Comm., 93 Ohio St.3d 151 (2001).
      {¶ 4} The facts of this case, which are more fully set forth in the magistrate's
decision, indicate that relator suffered an industrial injury on July 2, 1997. He
subsequently applied for and received temporary total disability compensation, and the
bureau initially calculated and set FWW at $416.63 and AWW at $365.36. In 2014,
relator filed for and was granted permanent total disability ("PTD") compensation.
      {¶ 5} In February 2015, the bureau conducted an audit of its prior calculation of
FWW and AWW, resulting in a determination that FWW should be adjusted upward, and
that AWW should be adjusted downward. On March 2, 2015, the bureau issued an order
increasing FWW from $416.63 to $422.81 and decreasing AWW from $365.36 to
$263.83.
      {¶ 6} Relator filed an administrative appeal, and a district hearing officer
("DHO") issued an order affirming the bureau's order. Relator appealed the order of the
DHO and the matter came for hearing before an SHO who issued an order on June 25,
2015, finding that FWW should remain at $422.81 and that AWW should be adjusted
upward from $263.83 to $325.00.
No. 15AP-804                                                                             3

       {¶ 7} Relator then filed the instant complaint in mandamus, arguing that the
bureau's March 2, 2015 order, recalculating his FWW and AWW, constituted an attempt
by the bureau to exercise continuing jurisdiction over the claim without statutory
authority. More specifically, relator argued that the bureau should have first filed a
motion seeking to invoke the continuing jurisdiction of the commission.
       {¶ 8} The magistrate determined that the bureau "lacked authority to issue its
March 2, 2105 order adjusting FWW and AWW because the matter at issue was a
contested matter that should have been referred to the commission for adjudication by a
DHO in the first instance." In support, the magistrate cited as authority decisions by the
Supreme Court in Drone and State ex rel. Crabtree v. Ohio Bur. of Workers' Comp., 71
Ohio St.3d 504 (1994).
       {¶ 9} R.C. 4123.52 states in part:

             (A) The jurisdiction of the industrial commission and the
             authority of the administrator of workers' compensation over
             each case is continuing, and the commission may make such
             modification or change with respect to former findings or
             orders with respect thereto, as, in its opinion is justified. * * *
             The commission shall not make any modification, change,
             finding, or award which shall award compensation for a back
             period in excess of two years prior to the date of filing
             application therefor.
             ***

             (D) This section does not affect the right of a claimant to
             compensation accruing subsequent to the filing of any such
             application, provided the application is filed within the time
             limit provided in this section.

      {¶ 10} The commission argues there is no legal authority for the magistrate's
determination that the bureau must file an application or a motion before it can correct a
mathematical error in its prior calculation of a claimant's FWW and AWW.               The
commission notes that, pursuant to R.C. 4123.52(A), "the authority of the administrator
of workers' compensation over each case is continuing." The commission cites Crabtree
for the proposition that the bureau's "role is ministerial, not deliberative," and that the
bureau "gives way to the commission when a party contests an award, necessitating a
weighing of evidence and a judgment." Id. at 507. The commission further asserts that
No. 15AP-804                                                                                              4

the Supreme Court in Drone recognized the bureau has authority to act sua sponte
without an application because its acts are ministerial, and that any such acts can later be
contested before the commission.
         {¶ 11} Under the facts in Drone, the bureau discovered an error in its calculation of
the claimant's AWW, resulting in an underpayment. The claimant in that case had not
filed an application for readjustment; rather, the bureau sua sponte issued an order
adjusting the amount, but limited the adjustment as to compensation paid for the two-
year period prior to the date it discovered the error.1 The claimant objected to the
bureau's order, and a DHO ordered an adjustment to all compensation previously paid;
specifically, because no application for readjustment had been filed in the claim, the DHO
determined that the two-year statute of limitations under R.C. 4123.52 was inapplicable.
The bureau appealed, and an SHO vacated the DHO's order, treating the claimant's
objection as an "application" under R.C. 4123.52. The commission therefore permitted
recoupment only to the date two years prior to the claimant's objection to the bureau's
order.    The claimant subsequently filed a complaint in mandamus, and this court
rendered a decision ordering the commission to adjust all compensation previously paid
in order to retroactively pay the claimant benefits that were not paid due to the error.
         {¶ 12} On appeal, the Supreme Court in Drone found unpersuasive the SHO's
determination that the claimant's written objection constituted an "application" for
purposes of invoking the statute of limitations.               Further, noting that the statute of
limitations under R.C. 4123.52 "requires an application to trigger it," the Supreme Court
upheld this court's decision on the basis that the statute of limitations was never
triggered. Drone at 155.
         {¶ 13} In the Drone decision, the Supreme Court observed the following with
respect to the bureau's sua sponte exercise of continuing jurisdiction to adjust the AWW
calculation as it relates to the two-year statute of limitations under R.C. 4123.52:
                Here, there is no motion. There is simply a bureau order and
                claimant's written objection to it. The former comports least
                with the criteria set forth by [State ex rel. Gen. Refractories
                Co. v. Indus. Comm., 44 Ohio St.3d 82 (1989)]. That case

1 The language of R.C. 4123.52 "expressly forbids the commission to pay PTD compensation for a back

period in excess of two years before the filing of the application for compensation." State ex rel. Adams v.
Aluchem, Inc., 104 Ohio St.3d 640, 2004-Ohio-6891, ¶ 11 (construing R.C. 4123.52(A)).
No. 15AP-804                                                                                 5

              instructs the reviewer to examine the "nature of the relief
              sought." (Emphasis added.) * * * This implies a request. The
              bureau order is not requesting relief. It is exactly what its
              name indicates—an order. It states what is to be done and
              how it is to be accomplished.

              We are uncomfortable with this reasoning because we
              recognize that when the bureau exercises sua sponte its
              continuing jurisdiction to correct a mistake, an order such as
              this is usually all that issues. The BWC does not apply for
              permission to act. Thus, if the bureau order lacks value for
              purposes of the two-year statute of limitations, does that
              mean that the bureau is not bound by the statute of
              limitation[s]? Going a step further, one wonders whether the
              BWC even has continuing jurisdiction to order any
              recoupment if, as the court of appeals held, R.C. 4123.52 does
              not apply at all. These are questions that have no ready
              answers.

Id. at 154.

       {¶ 14} In the instant case, the commission challenges the magistrate's conclusion
that the decision in Drone "does not prohibit this court from holding that the bureau
lacked statutory authority to issue an order purporting to adjudicate the merits of the
bureau's audit and finding that error had occurred in the initial calculation of FWW and
AWW." The commission asserts that case law and statutory language indicate that the
filing of the "application" referenced in R.C. 4123.52 applies to the claimant (i.e., it is the
claimant who files the application). The commission further argues that the Supreme
Court in Drone did not question the bureau's authority to act sua sponte, nor does
language in that decision suggest the bureau is required to file an application. Rather, the
commission argues, the lack of an application was the rationale provided by the court in
Drone as to why the retroactive increase was not limited to two years under R.C. 4123.52.
       {¶ 15} In response to the commission's objections, relator cites this court's
decision in State ex rel. Zingales v. Indus. Comm., 10th Dist. No. 08AP-643, 2009-Ohio-
1860, as illustrating a proper procedure for the bureau. Specifically, under the facts of
that case, the bureau filed a motion requesting the commission to invoke its continuing
jurisdiction to modify the relator's AWW. We note, however, while the facts of Zingales
No. 15AP-804                                                                              6

indicate the bureau filed such a motion, nothing in our decision addressed the issue of
whether the bureau was required to do so.
       {¶ 16} In general, as argued by the commission, references throughout the
workers' compensation rules to "applications," in the context of PTD compensation,
demonstrate the commission intended "claimants" to affirmatively request such
compensation. State ex rel. Adams v. Aluchem, Inc., 104 Ohio St.3d 640, 2004-Ohio-
6891, ¶ 26.
       {¶ 17} In the instant action, relator points to no statutory authority requiring the
bureau to file a motion to correct a calculation error with respect to AWW or FWW, and
language in Drone arguably gives recognition to the fact the bureau may exercise sua
sponte (i.e., in the absence of a motion and/or application) its continuing jurisdiction "to
correct [such] a mistake." Drone at 154. As otherwise stated in Drone, the bureau "does
not apply for permission to act." Id. Based on this court's independent review, we find
that the bureau and commission had continuing jurisdiction to correct a miscalculation in
relator's AWW and FWW, and we therefore find no abuse of discretion by the commission
in its June 25, 2015 order upholding the bureau's adjustment of relator's benefit rate.
       {¶ 18} Based on the foregoing, we adopt the magistrate's findings of fact, but reject
the magistrate's conclusions of law. The commission's second and third objections are
sustained, the first objection is rendered moot, and relator's request for a writ of
mandamus is hereby denied.
                                                                     Objections sustained;
                                                                writ of mandamus denied.

                     LUPER SCHUSTER and DORRIAN, JJ., concur.

                             ______________________
[Cite as State ex rel. Witt v. Indus. Comm. et al., 2017-Ohio-554.]


                                                 APPENDIX
                               IN THE COURT OF APPEALS OF OHIO

                                     TENTH APPELLATE DISTRICT

State of Ohio, ex rel.                                    :
Billy R. Witt, Jr.,
                                                          :
                 Relator,
                                                          :
v.                                                                           No. 15AP-804
                                                          :
Industrial Commission of Ohio,                                           (REGULAR CALENDAR)
Stephen Buehrer, Admin[istrator]                          :
Bureau of Workers' Comp[ensation],
and Christian Morris Const[ruction], Inc.,                :

                 Respondents.                             :


                                MAGISTRATE'S DECISION

                                        Rendered on April 27, 2016


                 Law Office of Thomas Tootle, and Thomas Tootle, for relator.

                 Michael DeWine, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.

                 Robert W. Bright,               for    respondent    Christian   Morris
                 Construction, Inc.


                                              IN MANDAMUS

        {¶ 19} In this original action, relator, Billy R. Witt, Jr., requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the June 25, 2015 order of its staff hearing officer ("SHO") to the extent that it adjusts the
full weekly wage ("FWW") and average weekly wage ("AWW"), and to enter an amended
order holding that respondent Ohio Bureau of Workers' Compensation ("bureau") did not
have jurisdiction to issue its March 2, 2015 order adjusting FWW and AWW. Relator also
requests that the writ order the bureau to vacate its March 2, 2015 order.
No. 15AP-804                                                                           8


Findings of Fact:
      {¶ 20} 1. On July 2, 1997, relator was industrially injured while employed as a
laborer for respondent Christian Morris Construction, Inc., a state-fund employer. Early
in the industrial claim (No. 97-440601), without an order from the administrator, the
bureau calculated and set FWW at $416.63 and AWW at $365.36.
      {¶ 21} 2. Relator began receiving temporary total disability ("TTD") compensation.
A substantial amount of TTD compensation has been paid by the bureau.
      {¶ 22} 3. On January 10, 2014, relator filed an application for permanent total
disability ("PTD") compensation.
      {¶ 23} 4. Following a June 12, 2014 hearing, SHO issued an order awarding PTD
compensation starting November 19, 2013.
      {¶ 24} 5. During February 2015, the bureau conducted an audit of its prior
calculation of FWW and AWW in the claim. The audit determined that FWW should be
increased from $416.63 to $422.81. It also determined that AWW should be decreased
from $365.36 to $263.83.
      {¶ 25} 6. On March 2, 2015, the bureau mailed an order increasing FWW from
$416.63 to $422.81. The order also decreased AWW from $365.36 to $263.83. The
bureau order warned:
             This decision becomes final if a written appeal is not received
             within 14 days of receiving this notice.

      {¶ 26} 7. On March 18, 2015, relator timely filed an administrative appeal from the
bureau's March 2, 2015 order.
      {¶ 27} 8. Following a May 18, 2015 hearing, a district hearing officer ("DHO")
issued an order affirming the bureau's order of March 2, 2015. The DHO's order explains:
             The Injured Worker's full weekly wage is $422.81, based
             upon a total income (including overtime) of $2,536.87, in the
             six weeks before injury divided by six weeks. This figure is
             higher than what Injured Worker made in the last seven days
             before injury (less overtime).

             The Injured Worker's average weekly wage is $263.83, based
             upon total income of $12,783.62 in the year before injury
             divided by 52 weeks.

             The District Hearing Officer declines the Injured Worker's
             request to exclude the weeks from 07/02/1996 to
No. 15AP-804                                                                         9


             04/04/1997 from the calculation of average weekly wage.
             During this time Injured Worker was self-employed but, in
             counsel's words, "not very successful." This is not a basis for
             reducing average weekly wage.

             The Injured Worker also argues that the Bureau of Workers'
             Compensation should be barred by laches from adjusting the
             average weekly wage since it has not attempted to do so for
             decades. Laches is a doctrine from equity that can only be
             applied by courts. Without express authority in a statute,
             rule, or case law, the Industrial Commission has no authority
             to apply equity.

             The Administrator is directed to please adjust compensation
             previously paid in this claim to take into account these new
             figures. There was no "application" to adjust wages since the
             Bureau of Workers'' Compensation did so on its own
             initiative. According to the Ohio Supreme Court, this means
             that the Administrator has authority to go back as far as he
             wishes when making adjustments.

             Any overpayment created by this order is to be recouped
             from future benefits, if any, pursuant to Ohio Revised Code
             4123.511(K).

             The District Hearing Officer considered everything that was
             written in the file and said at the hearing before making this
             decision. The evidence relied upon in reaching this decision
             includes the wage documentation and Bureau of Workers'
             Compensation wage calculation worksheet filed 03/18/2015.

      {¶ 28} 9. Relator administratively appealed the DHO's order of May 18, 2015.
      {¶ 29} 10. Following a June 25, 2015 hearing, an SHO issued an order affirming
the DHO's order of May 18, 2015. The SHO's order of June 25, 2015 explains:
             Full weekly wage remains established at $422.81. This is
             determined by taking the Injured Worker's wages in the six
             weeks prior to the date of injury, a total of $2,536.87, and
             dividing by six. This amount is more than the Injured
             Worker made in the seven days prior to the injury, excluding
             overtime. This figure was not contested by the Injured
             Worker.

             It is the finding of the Staff Hearing Officer that an
             arithmetic calculation of the Injured Worker's wages would
             not do substantial justice. The Injured Worker had a
             substantial period in the year prior to the date of injury when
No. 15AP-804                                                                                   10


                 he was unsuccessfully self-employed. Including this time
                 period and these wages would not accurately reflect the
                 Injured Worker's reasonable earning capacity. The Staff
                 Hearing Officer does not find well taken Injured Worker's
                 request that the average weekly wage be established at the
                 full weekly wage, as this was with a construction company
                 and consequently this is significantly seasonal work. The
                 average weekly wage is established at $325.00. This figure is
                 found to be an approximation which would compensate the
                 Injured Worker for what he lost as a consequence of the
                 injury, without providing a windfall, and is between the
                 merely arithmetic calculation of $263.83, and the amount
                 the Injured Worker was receiving at the time of his injury.

                 The Administrator is directed to adjust compensation
                 previously paid in this claim to take into account these new
                 figures. Because there was no application, there is no
                 limitation under R.C. 4123.52. The recoupment from any
                 future benefits, if this creates an overpayment, is limited to
                 the non-fraud provisions of R.C. 4123.511(K).

                 The Staff Hearing Officer has considered Injured Worker's
                 counsel's argument that, because of the very long passage of
                 time, the doctrine of latches [sic] should be applied to the
                 recoupment of the overpayment. This argument is not found
                 well taken. Latches [sic] is an equitable remedy, not
                 appropriate for an administrative hearing setting.

          {¶ 30} 11. On July 16, 2015, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of June 25, 2015.
          {¶ 31} 12. On August 25, 2015, relator, Billy R. Witt, Jr., filed this mandamus
action.
Conclusions of Law:
          {¶ 32} Because the bureau did not have the statutory authority to issue its March 2,
2015 order adjusting FWW and AWW, it is the magistrate's decision that this court issue a
writ of mandamus, as more fully explained below.
          {¶ 33} R.C. 4121.34(B)(3) gives district hearing officers original jurisdiction over all
contested matters arising under R.C. Chapter 4123, except those matters over which staff
hearing officers have original jurisdiction under R.C. 4121.35.
No. 15AP-804                                                                              11


       {¶ 34} R.C. 4121.39 sets forth the powers and duties of the bureau:

              The administrator of workers’ compensation shall do all of
              the following:

              (A) Except as provided in section 4123.402 of the Revised
              Code, review and process all applications for claims;

              (B) Award compensation and make payment on all
              noncontested claims;

              (C) Make payment on orders of the industrial commission
              and district and staff hearing officers as provided in section
              4123.511 of the Revised Code.

       {¶ 35} In State ex rel. Crabtree v. Ohio Bur. of Workers' Comp., 71 Ohio St.3d 504
(1994), the Supreme Court of Ohio set forth the jurisdictional parameters of the bureau in
the context of the termination of TTD compensation on grounds that the industrial injury
had reached maximum medical improvement ("MMI"). Citing to R.C. 4121.34(B)(3) and
4121.39, the court held that the bureau did not have the statutory authority to unilaterally
terminate TTD compensation on MMI grounds where the issue was a contested matter.
       {¶ 36} In issuing a writ of prohibition and mandamus, the Crabtree court stated:
              The limited power Ohio Rev. Code Ann. § 4121.39 accords
              the Bureau of Workers' Compensation is consistently
              reflected in the remainder of the statutory framework of
              Ohio's workers' compensation system. The bureau's role is
              ministerial, not deliberative. The bureau gives way to the
              commission when a party contests an award, necessitating a
              weighing of evidence and a judgment. The bureau then
              makes the payments based upon the commission's
              judgments.

Id. at 507.

       {¶ 37} Applying Crabtree to the instant case, it is clear that the bureau lacked
authority to issue its March 2, 2015 order adjusting FWW and AWW because the matter
at issue was a contested matter that should have been referred to the commission for
adjudication by a DHO in the first instance.
       {¶ 38} The bureau's issuance of an order rather than the filing of a motion with the
commission for the exercise of continuing jurisdiction was prejudicial to relator because
of the holding in State ex rel. Drone v. Indus. Comm., 93 Ohio St.3d 151 (2001), upon
No. 15AP-804                                                                           12


which the SHO's order of June 25, 2015 seems to rely without express citation to the case.
That is, the SHO held that "[b]ecause there was no application, there is no limitation
under R.C. 4123.52." This appears to be a reference to the following provision of R.C.
4123.52:
             The commission shall not make any modification, change,
             finding, or award which shall award compensation for a back
             period in excess of two years prior to the date of filing
             application therefor.

      {¶ 39} Thus, the SHO's order of June 25, 2015 seems to hold that the two-year
limitation is not applicable to the bureau's recoupment of compensation for any back
period in the case. Accordingly, a review of the Drone case may be helpful.
      {¶ 40} The bureau initially set Evelyn Drone's AWW at $138.96. In September
1998, the bureau discovered an error in its calculation. In December 1998, the bureau
notified Drone that her AWW had been incorrectly calculated resulting in an
underpayment in her claim. The bureau stated that AWW is now set at $174.08, but that
adjustments to her previously received compensation would be limited to the two-year
period in R.C. 4123.52. Further, the two-year period would be measured from the date
the bureau discovered the error. Apparently, the just-described notification was issued in
a bureau order to which Drone objected.
      {¶ 41} A DHO reset AWW at $206.60 and ordered an adjustment of all
compensation previously paid. The DHO found that no application for readjustment had
been filed in the claim, rendering inapplicable R.C. 4123.52's two-year statute of
limitation that presumably motivated the bureau's repayment restriction. The bureau
administratively appealed the DHO's order.
      {¶ 42} Following a hearing, an SHO vacated the DHO's order and permitted
recoupment only to December 31, 1996, the date two-years prior to Drone's objection to
the bureau's order.
      {¶ 43} Thereafter, Drone filed in this court a mandamus action alleging that the
commission abused its discretion in refusing to readjust all prior compensation. This
court ordered the commission to adjust all compensation previously paid.
      {¶ 44} The cause was appealed as of right to the Supreme Court of Ohio.
      {¶ 45} The Supreme Court held that the statute of limitations was never triggered
because there is no application within the meaning of R.C. 4123.52. In explaining its
No. 15AP-804                                                                           13


decision, the Drone court referred to State ex rel. Gen. Refractories Co. v. Indus. Comm.,
44 Ohio St.3d 82 (1989). The Drone court explains:
              Here, there is no motion. There is simply a bureau order and
              claimant's written objection to it. The former comports least
              with the criteria set forth by Gen. Refractories. That case
              instructs the reviewer to examine the "nature of the relief
              sought." (Emphasis added.) Id. at 83, 541 N.E.2d at 54. This
              implies a request. The bureau order is not requesting relief.
              It is exactly what its name indicates--an order. It states what
              is to be done and how it is to be accomplished.

              We are uncomfortable with this reasoning because we
              recognize that when the bureau exercises sua sponte its
              continuing jurisdiction to correct a mistake, an order such as
              this is usually all that issues. The BWC does not apply for
              permission to act. Thus, if the bureau order lacks value for
              purposes of the two-year statute of limitations, does that
              mean that the bureau is not bound by the statute of
              limitation? Going a step further, one wonders whether the
              BWC even has continuing jurisdiction to order any
              recoupment if, as the court of appeals held, R.C. 4123.52
              does not apply at all. These are questions that have no ready
              answers.

              ***

              Analysis has thus come full circle and herein lies the
              dilemma, as no answer distinguishes itself. We find that the
              court of appeals' judgment is truest to R.C. 4123.52 and Gen.
              Refractories. Because the statute of limitations in R.C.
              4123.52 requires an application to trigger it and nothing
              satisfies Gen. Refractories' outline of an application, then the
              statute of limitations has not been invoked.

(Emphasis sic.) Id. at 154-55.

        {¶ 46} Here, the commission points to the fact that in Drone the bureau issued an
order to correct the miscalculation of AWW. That is, the bureau did not file a motion that
the commission correct the miscalculation. Referring to Drone, the commission states
here:
              The Supreme Court found nothing amiss in the
              Administrator's action and held that the two-year limitation
              on declaration of an overpayment did not apply where the
              Administrator discovered that it had miscalculated the
No. 15AP-804                                                                               14


              claimant's AWW and sua sponte exercised its continuing
              jurisdiction to correct the mistake.

(Commission's Brief, 9.)

      {¶ 47} In the magistrate's view, the Drone case does not prohibit this court from
holding that the bureau lacked statutory authority to issue an order purporting to
adjudicate the merits of the bureau's audit and finding that error had occurred in the
initial calculation of FWW and AWW. In Drone, no one argued that the bureau lacked
authority to issue the order. The Crabtree case was not discussed by the Drone court.
      {¶ 48} Moreover, in the instant case, the bureau's decision to issue an order rather
than file a motion for an adjustment of FWW and AWW had the effect of eliminating the
"application" that the Drone court found was the trigger for the two-year statute of
limitations. Thus, the bureau's decision to issue an order was prejudicial to relator
because it resulted in the commission's holding that the bureau is now under no
limitation in declaring an overpayment of compensation.
      {¶ 49} Accordingly, for all the above reasons, it is the magistrate's decision that this
court issue a writ of mandamus ordering the commission to vacate the June 25, 2015
order of its SHO to the extent that it adjusts FWW and AWW, and to enter an amended
order holding that the bureau did not have jurisdiction to issue its March 2, 2015 order
adjusting FWW and AWW. Further, the writ must order the bureau to vacate its March 2,
2015 order.

                                              /S/ MAGISTRATE
                                              KENNETH W. MACKE


                              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).
