[Cite as State ex rel. Ohio Dept. of Transp. v. Drago, 2017-Ohio-371.]




                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel.                                       :
Ohio Department of Transportation,
                                                        :
                 Relator,
                                                        :
v.                                                                          No. 16AP-219
                                                        :
Dominic Drago, deceased                                                  (REGULAR CALENDAR)
c/o Karen McConnell,                                    :
Administrator of the Estate
of Dominic Drago, et al.,                               :

                 Respondents.                           :
                                                             ______

                                               DECISION

                            Rendered on January 31, 2017
                  _________________________________________

                 Buckingham, Doolittle & Burroughs, LLP, Marietta M.
                 Pavlidis, and Denise A. Gary, for relator.

                 Cox, Koltak & Gibson, LLP, and Peter J. Gibson, for
                 respondent Dominic Drago, deceased, and Karen McConnell.

                 Michael DeWine, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.
                  _________________________________________
                                 IN MANDAMUS
                  ON RESPONDENTS' MOTION FOR JUDGMENT ON THE
                                   PLEADINGS
BRUNNER, J.
        {¶ 1} Relator, Ohio Department of Transportation ("ODOT"), has filed this
original action requesting this Court to issue a writ of mandamus ordering respondent,
Industrial Commission of Ohio ("commission"), to vacate its order mailed April 2, 2015,
in which the commission exercised its continuing jurisdiction pursuant to R.C. 4123.52
                                                                                       2
No. 16AP-219
and granted death benefits on behalf of respondent, Dominic Drago, and ordering the
commission to reinstate the August 5, 2014 order of the staff hearing officer ("SHO"),
which had denied death benefits.
       {¶ 2} On May 25, 2016, Karen McConnell, administrator of Drago's estate, filed a
motion for a judgment of dismissal on the pleadings. McConnell asserts in her motion
that ODOT can prove no set of facts that entitle it to mandamus relief. On June 15, 2016,
the commission filed a memorandum in support of McConnell's motion to dismiss.
       {¶ 3} We referred this matter to a magistrate of this Court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending that
this Court grant the motion for judgment of dismissal on the pleadings and dismiss
ODOT's mandamus action for the reason that ODOT has or had a plain and adequate
remedy in law and thus is not entitled to relief in mandamus.
I. FACTS AND PROCEDURAL HISTORY
       {¶ 4} Drago was employed by ODOT when, on February 26, 1997, he sustained
injuries in the course of his employment. Drago's claim was recognized for extradural
hematoma-coma, brain injury brief coma, brain conditions, closed fracture skull vault
brief coma, headaches and stress reaction emotional. Drago died on August 8, 2013.
       {¶ 5} On September 16, 2013, Karen McConnell, as the administrator for Drago's
estate, filed an application for death benefits on behalf of Drago's dependents. The Ohio
Bureau of Workers' Compensation ("BWC") denied the application for death benefits.
McConnell appealed, and a district hearing officer ("DHO") heard the matter on June 16,
2014. The DHO issued an order vacating the BWC order and granting the application for
death benefits.
       {¶ 6} ODOT appealed the DHO's order. On August 5, 2014, an SHO heard the
appeal and thereafter modified the DHO's order and ultimately denied the death benefits.
       {¶ 7} McConnell filed an appeal, which the commission refused to accept.
McConnell then filed a request for reconsideration of the August 5, 2014 SHO order.
       {¶ 8} The commission held a hearing on January 27, 2015, after which it granted
the request for reconsideration, vacated the August 5, 2014 SHO order, and granted the
application for death benefits.
                                                                                            3
No. 16AP-219
          {¶ 9} On June 15, 2015, ODOT filed a notice of appeal pursuant to R.C. 4123.512
in the Columbiana County Court of Common Pleas. On February 29, 2016, the parties
filed a joint stipulated notice of dismissal without prejudice.
          {¶ 10} On March 24, 2016, ODOT filed this mandamus action. On May 25, 2015,
McConnell filed a motion for judgment on the pleadings, and the commission filed a
memorandum in support. On June 6, 2016, ODOT filed its brief in opposition to the
motion for judgment on the pleadings.
II. OBJECTIONS
          {¶ 11} No objection has been filed to the magistrate's decision.
III. DISCUSSION
          {¶ 12} To be entitled to relief in mandamus, ODOT must establish the threshold
prerequisite that it lacks an adequate remedy in the ordinary course of law. State ex rel.
Alhamarshah v. Indus. Comm., 142 Ohio St.3d 524, 2015-Ohio-1357, ¶ 11, citing State ex
rel. Consolidation Coal Co. v. Indus. Comm., 18 Ohio St.3d. 281, 284 (1985), citing State
ex rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 88 (1966). "When the relator has a plain
and adequate remedy at law by way of appeal, courts lack authority to exercise
jurisdictional discretion and must deny the writ, regardless of whether the relator used
the remedy." Id.
          {¶ 13} We find that the magistrate's finding that ODOT "has or had a plain and
adequate remedy at law by way of an appeal to the common pleas court pursuant to R.C.
4123.512" is consistent with Alhamarshah.            (App'x at ¶ 33.)        We agree with the
magistrate's decision that ODOT can prove no set of facts entitling it to mandamus relief.
We, therefore, adopt the magistrate's decision and grant respondents' motion for
judgment on the pleadings, dismissing ODOT's mandamus action.
IV. CONCLUSION
          {¶ 14} Having conducted an independent review of the record in this matter and
finding no error of law or other defect on the face of the magistrate's decision, this Court
adopts the magistrate's decision as our own, including the findings of fact and conclusions
of law contained therein.        In accordance with the magistrate's decision, we grant
respondents' motion for judgment on the pleadings and dismiss ODOT's mandamus
action.
                                                                            4
No. 16AP-219
                    Motion for judgment of dismissal on the pleadings granted;
                                                Writ of mandamus dismissed.

               KLATT and LUPER SCHUSTER, JJ., concur.
                          _____________
                                                                                   5
No. 16AP-219
                                       APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT



The State ex rel.                           :
Ohio Department of Transportation,
                                            :
             Relator,
                                            :
v.                                                             No. 16AP-219
                                            :
Dominic Drago, deceased                                     (REGULAR CALENDAR)
c/o Karen McConnell,                        :
Administrator of the Estate
of Dominic Drago, et al.,                   :

             Respondents.                   :


                        MAGISTRATE'S DECISION

                                Rendered on July 20, 2016



             Buckingham, Doolittle & Burroughs, LLP, Marietta M.
             Pavlidis, and Denise A. Gary, for relator.

             Cox, Koltak & Gibson, LLP, and Peter J. Gibson, for
             respondent Dominic Drago, deceased, and Karen McConnell.

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


                            IN MANDAMUS
       ON RESPONDENT'S MOTION FOR JUDGMENT ON THE PLEADINGS

      {¶ 15} Relator, Ohio Department of Transportation ("ODOT"), filed this original
action requesting this court issue a writ of mandamus ordering respondent, Industrial
Commission of Ohio ("commission"), to vacate its order wherein the commission
                                                                                         6
No. 16AP-219
exercised its continuing jurisdiction, pursuant to R.C. 4123.52, and granted death benefits
on behalf of respondent, Dominic Drago, and ordering the commission to reinstate the
previous order of the staff hearing officer ("SHO"), which denied death benefits.
Findings of Fact:
       {¶ 16} 1. Drago was employed by ODOT when, on February 26, 1997, he sustained
injuries in the course of his employment.
       {¶ 17} 2. Drago's claim was recognized for the following conditions:
              [E]xtradural hematoma-coma, brain injury brief coma, brain
              conditions, closed fracture skull vault brief coma, headaches
              and stress reaction emotional.

       {¶ 18} 3. Drago died on August 8, 2013.
       {¶ 19} 4. On September 16, 2013, Karen McConnell, as the administrator for
Drago's estate, filed an application for death benefits on behalf of his dependents.
       {¶ 20} 5. In an order dated January 16, 2014, the Ohio Bureau of Workers'
Compensation ("BWC") denied the application for death benefits.
       {¶ 21} 6. McConnell appealed and a hearing was held before a district hearing
officer ("DHO") on June 16, 2014. The DHO issued an order vacating the prior BWC
order and granting the application for death benefits.
       {¶ 22} 7. ODOT appealed and the matter was heard before an SHO on
August 5, 2014.     The SHO modified the prior DHO order and ultimately denied the
application for death benefits.
       {¶ 23} 8. McConnell filed an appeal which the commission refused to accept.
       {¶ 24} 9. Thereafter, McConnell filed a request for reconsideration of the August 5,
2014 SHO order.
       {¶ 25} 10. In an interlocutory order mailed October 23, 2014, the commission
determined that there was sufficient probative evidence to warrant adjudication of the
request for reconsideration regarding an alleged presence of a clear mistake of fact and
clear mistake of law.
       {¶ 26} 11. A hearing was held before the commission on January 27, 2015. The
commission granted the request for reconsideration, vacated the August 5, 2014 SHO
order, and granted the application for death benefits.
                                                                                         7
No. 16AP-219
       {¶ 27} 12. On June 15, 2015, ODOT filed a notice of appeal pursuant to
R.C. 4123.512 in the Columbiana County Court of Common Pleas under C.P. No. 2015 CV
278.
       {¶ 28} 13. On February 29, 2016, the parties filed a joint stipulated notice of
dismissal without prejudice.
       {¶ 29} 14. On March 24, 2016, ODOT filed this mandamus action.
       {¶ 30} 15. On May 25, 2016, McConnell filed a motion for judgment on the
pleadings, and the commission filed a memorandum in support.
       {¶ 31} 16. On June 6, 2016, ODOT filed its brief in opposition to the motion for
judgment on the pleadings.
       {¶ 32} 17. The matter is currently before the magistrate on the motion for
judgment on the pleadings.
Conclusions of Law:
       {¶ 33} Because relator has or had a plain and adequate remedy at law by way of an
appeal to the common pleas court pursuant to R.C. 4123.512, it is the magistrate's
decision that this court grant respondent's motion for judgment on the pleadings and
dismiss relator's complaint for a writ of mandamus.
       {¶ 34} This case is controlled by State ex rel. Alhamarshah v. Indus. Comm., 142
Ohio St.3d 524, 2015-Ohio-1357.
       {¶ 35} In September 2009, Mustafa Alhamarshah was injured when he fell while
trying to cut a tree branch.       In December, he filed an application for workers'
compensation benefits alleging that his injury had occurred while he was employed as a
laborer for Mohamed Salem, d.b.a. Ballmohd, L.L.C.
       {¶ 36} On January 7, 2010, the bureau allowed the claim against Salem as the
employer and ordered payment of medical benefits and TTD compensation. The order
informed the parties that the decision would become final unless a written appeal was
received within 14 days. The order further advised the parties to contact "Jolene M" at the
bureau's Columbus service office with any questions. Id. at ¶ 4.
       {¶ 37} Salem asked a friend, Abdul Alnobani, to telephone Jolene to ask about
filing an appeal. Both Salem and Alnobani spoke with Jolene on a three-way call and she
told them how to proceed. Alnobani then faxed some documents to "Jolin" that allegedly
                                                                                           8
No. 16AP-219
disprove any employer-employee relationship. Id. at ¶ 5. The cover page to the faxed
documents identified the subject as "Mustafa Alhamarshah-Mohammad Salem," but it
did not include a claim number or the date of the order being appealed. Id. Upon receipt,
the words "construe as appeal" were hand-written on the cover page, apparently by a
bureau employee, and the documents were forwarded to the appeals section of the
commission. Id.
       {¶ 38} Ultimately, the commission concluded that Salem's appeal substantially
complied with the requirements of R.C. 4123.511(F) for an administrative notice of appeal
and that there was no evidence that Alhamarshah had been prejudiced by any omission in
the notice of appeal. The commission accordingly accepted the appeal as valid and
referred the matter to a DHO for consideration of the merits of the initial application.
       {¶ 39} The hearing officer disallowed the claim on the merits, finding that
Alhamarshah was not an employee of Salem, and the commission affirmed that order.
Alhamarshah appealed to the Franklin County Court of Common Pleas pursuant to
R.C. 4123.512. About a month later, he filed in this court a complaint for a writ of
mandamus alleging that the commission's order determining that Salem's administrative
appeal was valid, was an abuse of discretion, and contrary to law.
       {¶ 40} A magistrate of this court determined that the mandamus action was
premature in light of the case pending in common pleas court and that the writ should be
denied on that basis. By the time this court considered Alhamarshah's objections, he had
dismissed his case in the common pleas court without prejudice subject to refiling within
one year.
       {¶ 41} This court proceeded to consider the merits of the mandamus action and
concluded that the commission did not abuse its discretion when it allowed Salem's
appeal from the bureau's initial decision in Alhamarshah's favor to proceed. This court
denied the writ.
       {¶ 42} Alhamarshah appealed as of right to the Supreme Court of Ohio.
       {¶ 43} In affirming this court's decision, but on grounds other than those stated by
this court, the Supreme Court explained:
              The lack of an adequate remedy in the ordinary course of the
              law is a necessary prerequisite for relief in mandamus. State
              ex rel. Consolidation Coal Co. v. Industrial Com. of Ohio, 18
                                                                                      9
No. 16AP-219
               Ohio St.3d 281, 284, 18 Ohio B. 333, 480 N.E.2d 807 (1985),
               citing State ex rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85,
               88, 218 N.E.2d 428 (1966). When the relator has a plain and
               adequate remedy at law by way of appeal, courts lack
               authority to exercise jurisdictional discretion and must deny
               the writ, regardless of whether the relator used the remedy.
               Id.; State ex rel. Davet v. Sutula, 8th Dist. Cuyahoga No.
               96548, 2011-Ohio-2803, 2011 WL 2409641, ¶ 10. This is a
               threshold question that we must consider even when the
               court of appeals has not addressed the issue. State ex rel.
               Woodbury v. Spitler, 40 Ohio St.2d 1, 3, 318 N.E.2d 165
               (1974).

               In this case, the commission decided that the documentation
               submitted on behalf of the purported employer substantially
               complied with the statutory requirements for a notice of an
               appeal of the bureau's initial order. This decision conferred
               jurisdiction on the commission to proceed to consider the
               merits of the purported employer's appeal. The commission's
               exercise of jurisdiction resulted in a decision denying the
               claimant's right to participate in the workers' compensation
               system. Consequently, the decision allowing the appeal to
               proceed was essential to the ultimate determination that
               denied the claimant's participation in the workers'
               compensation system. As such, the commission's decision to
               accept the appeal as valid was appealable pursuant to R.C.
               4123.512. See Consolidation Coal Co. at 284-285, 18 Ohio
               St.3d 281, 18 Ohio B. 333, 480 N.E.2d 807.

               Alhamarshah had an adequate remedy in the ordinary course
               of law by way of an appeal under R.C. 4123.512 regarding the
               issue he raises in this case, and therefore he is not entitled to
               relief in mandamus. Accordingly, on grounds other than
               those stated by the court below, we affirm.

Id. at ¶ 35.
       {¶ 44} This court has applied Alhamarshah several times since the Supreme Court
rendered its decision. In State ex rel. Johnson v. OSU Cancer Research Hosp., 10th Dist.
No. 14AP-430, 2015-Ohio-3249, Eleanorene Johnson suffered an industrial injury in
2010 and her claim was allowed for the following physical condition: sprain lumbosacral.
On August 23, 2013, Johnson filed a C-86 motion requesting that her claim be
additionally allowed for the following psychological condition: major depression, single
episode, non-psychotic, severe. A DHO disallowed Johnson's request. The matter came
                                                                                          10
No. 16AP-219
before the SHO on October 18, 2013.           The SHO granted Johnson's request and
additionally allowed her claim to include the requested psychological condition. OSU
attempted to appeal the SHO's order, but the commission refused the appeal.
       {¶ 45} OSU then filed a request for reconsideration with the commission. On
January 9, 2014, the commission issued an order vacating the SHO's order and setting the
matter for a hearing. The commission concluded that the SHO's order contained a clear
mistake of law, as it failed to find that the requested psychological condition was causally
related to the allowed physical condition. The commission accordingly granted OSU's
request for reconsideration, and denied Johnson's request for the additional allowance.
       {¶ 46} Johnson filed a mandamus action in this court asserting that the
commission abused its discretion when it granted OSU's request for reconsideration and
asked that the commission be ordered to reinstate the SHO's order which allowed her
claim for the psychological condition.
       {¶ 47} OSU argued that this court did not have jurisdiction to hear the matter
asserting that it was a right to participate and that Johnson had an adequate remedy at
law. As OSU asserted, if this court found the commission abused its discretion when it
determined the SHO's order contained a clear mistake of law, Johnson's claim would be
additionally allowed for a psychological condition and OSU would have to challenge that
allowance in common pleas court.
       {¶ 48} This court's magistrate found this court did have jurisdiction finding that
the commission's determination that it had continuing jurisdiction was reviewable here in
mandamus and could not be challenged elsewhere. Thereafter, the magistrate found that
the commission did not abuse its discretion when it exercised its continuing jurisdiction.
       {¶ 49} OSU filed an objection to the magistrate's decision and argued that,
pursuant to the Supreme Court's recent decision in Alhamarshah, this court should find
that mandamus relief was inappropriate because Johnson had an adequate remedy at law.
Finding that the commission's decision to exercise its continuing jurisdiction resulted in a
decision which denied Johnson the right to participate in the workers' compensation
system, this court found that the commission's decision was "essential to the ultimate
determination that denied [Johnson's] participation in the workers' compensation
system," and mandamus relief was inappropriate as Johnson had an adequate remedy in
                                                                                            11
No. 16AP-219
the ordinary course of law by way of an appeal under R.C. 4123.512. Johnson at ¶ 12,
citing Alhamarshah.
       {¶ 50} In State ex rel. Black v. CVS Pharmacy, 10th Dist. No. 15AP-120, 2015-
Ohio-4868, Sharon Black sought a writ of mandamus ordering the commission to vacate
its order exercising its continuing jurisdiction and finding that her claim should be
additionally allowed for disc herniation at T12-L1 when she had already filed a notice of
appeal, pursuant to R.C. 4123.512 from the disallowance of other conditions and ordering
the commission to reinstate its order allowing her claim for disc herniation at T12-L1. The
court's magistrate concluded that Black had an adequate remedy in the ordinary course of
law by way of appeal to the common pleas court and, as such, was not entitled to a writ of
mandamus. Black objected to the magistrate's conclusion that she had an adequate
remedy at law and argued that mandamus was the appropriate remedy pursuant to the
Supreme Court precedent in State ex rel. Saunders v. Metal Container Corp., 52 Ohio
St.3d 85 (1990).
       {¶ 51} In Saunders, the DHO issued an order allowing a condition described as
"back." At the time, R.C. 4121.36(B) required the order allowing a condition to contain a
"description of the part of the body and nature of the disability recognized in the claim."
The commission subsequently attempted to correct the error by amending the part of the
body affected from "back" to "lumbosacral" and "lumbar spine."
       {¶ 52} The Supreme Court noted that a statutorily defective allowance, such as the
one issued by the DHO, constituted a "mistake," which permitted the commission,
pursuant to R.C. 4123.52, to invoke its continuing jurisdiction to correct.           It held,
however, that the commission could have simply amended the allowed condition to reflect
"back sprain," but, instead, the commission went too far in narrowing the named body
part from "back" to "lumbosacral" and "lumbar spine." The Supreme Court held that,
although the commission was permitted to invoke continuing jurisdiction to correct the
mistake, the continuing jurisdiction did not allow the extent of the correction attempted.
       {¶ 53} The Supreme Court in Saunders also held that mandamus was the proper
remedy to address the commission's improper extension of continuing jurisdiction. The
Supreme Court noted that "[t]he relevant question here is not one of appellee's right to
participate * * * for a 'back' injury but is instead whether a mistake sufficient to invoke the
                                                                                       12
No. 16AP-219
continuing jurisdiction provisions of R.C. 4123.52 existed. We find the latter question to
be the proper subject matter for a writ of mandamus." Id. at 86.
       {¶ 54} Black suggested that Saunders controls. This court disagreed, stating:
                The question before us now is not whether a mistake
                sufficient to invoke the continuing jurisdiction provisions of
                R.C. 4123.52 existed. The crux of relator's argument here,
                however, is that the institution of an appeal of the
                disallowance of other claims, pursuant to R.C. 4123.519,
                deprived the commission of jurisdiction to even consider
                whether there was a mistake sufficient to invoke it's
                continuing jurisdiction, pursuant to R.C. 4123.52, regarding
                the disc herniation at T12-L1 claim. The issue here is a
                precursor to the issue of whether a mistake existed sufficient
                to invoke the continuing jurisdiction provisions of R.C.
                4123.52.

                Relator argues that the magistrate's reliance on
                Alhamarshah is misplaced. In Alhamarshah, the
                commission accepted documentation from the employer and
                determined that it substantially complied with the statutory
                requirements for a notice of an appeal of the Bureau of
                Worker's Compensation's initial allowance of a claim. The
                Supreme Court noted that "[t]his decision conferred
                jurisdiction on the commission to proceed to consider the
                merits of the purported employer's appeal" and that such
                exercise of jurisdiction "resulted in a decision denying the
                claimant's right to participate in the worker's compensation
                system." The Supreme Court held that "[c]onsequently, the
                decision allowing the appeal to proceed was essential to the
                ultimate determination that denied the claimant's
                participation in the worker's compensation system. As such,
                the commission's decision to accept the appeal as valid was
                appealable pursuant to R.C. 4123.512." (Emphasis added.)
                Id. at ¶ 10-12. Likewise, here, the commission's decision to
                proceed, while the appeal of other disallowed claims was
                pending in the common pleas court, was essential to the
                ultimate determination that denied relator's participation in
                the workers' compensation system for the disc herniation at
                T12-L1.

                We find the magistrate properly relied upon Alhamarshah,
                and, for the reasons stated above and in the magistrate's
                decision, we find no merit to relator's objections.

Id. at ¶ 7-9.
                                                                                         13
No. 16AP-219
       {¶ 55} Black argued that because she had already appealed the disallowance of
other claims to the common pleas court, the commission did not have jurisdiction to
invoke its continuing jurisdiction to deny her claim for disc herniation at T12-L1.
       {¶ 56} ODOT also cites a 2004 case decided by this court. In State ex rel. Wells v.
Indus. Comm., 10th Dist. No. 04AP-758, 2006-Ohio-2738, this court found mandamus
review appropriate after the commission exercised its continuing jurisdiction despite the
fact that the party retained an appellate remedy pursuant to R.C. 4123.512. The problem
with ODOT's argument is that the Supreme Court's decision in Alhamarshah effectively
overruled this court's earlier holding in Wells.
       {¶ 57} Finding that ODOT can prove no set of facts entitling it to relief and finding
that the decision in Alhamarshah is controlling, it is this magistrate's decision that this
court should grant respondent's motion for judgment on the pleadings and dismiss
ODOT's mandamus action.


                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA




                              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).
