[Cite as State ex rel. Ford Motor Co. v. Indus. Comm., 2015-Ohio-181.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State of Ohio ex rel.                            :
Ford Motor Company,
                                                     :
                 Relator,
                                                     :

v.                                                   :                   No. 13AP-762

The Industrial Commission of Ohio and                :               (REGULAR CALENDAR)
Bryan Craft,
                                                     :
                 Respondents.
                                                     :


                                           D E C I S I O N

                                    Rendered on January 22, 2015


                 Timothy J. Krantz, for relator.

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

                 Bevan & Associates, and David S. Bates, for respondent
                 Bryan Craft.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.

        {¶ 1} Ford Motor Company filed this action in mandamus seeking a writ to
compel the Industrial Commission of Ohio ("commission") to relieve it of a duty to pay
the Ohio Bureau of Workers' Compensation ("BWC") funds to reimburse it for payments
to Bryan Craft.
        {¶ 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-762                                                                             2

the pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision
containing detailed findings of fact and conclusions of law appended hereto.           The
magistrate's decision includes a recommendation that we deny the request for a writ.
       {¶ 3} Ford Motor Company has filed objections to the magistrate's decision.
Counsel for the commission has filed a memorandum in response. The case is now before
the court for a full independent review.
       {¶ 4} The facts in the case are not in dispute. Ford Motor Company has not
objected to the findings of fact, so the findings of fact in the magistrate's decision are
hereby adopted.
       {¶ 5} Ford Motor Company does object to the application of the law to the
uncontested facts. Specifically, the objections are:
              OBJECTION NO. 1

              The Magistrate erred in failing to find that DWRF benefits
              constitute compensation and therefore, falling under the 2-
              year "limitation" provision in R.C. §4123.52, regarding
              retroactive payment of compensation.

              OBJECTION NO. 2

              Although the Magistrate found that the BWC failed to
              properly administer the claimant's claim, the Magistrate
              erred in failing to find that the "doctrine of laches" precludes
              the BWC from charging Ford DWRF payments going back
              more than thirteen-years.

       {¶ 6} Bryan Craft was found to be entitled to permanent total disability
compensation back in the 1990's. Early in the period when he began receiving the
benefits, repeated inquiries were made to ascertain whether he was entitled to additional
compensation from the Disabled Workers' Relief Fund ("DWRF"). Because of the money
he was receiving from Social Security Disability, he was found to not be entitled to
payments from DWRF at that time. The inquiries from BWC on that topic then stopped
for many years.
       {¶ 7} Eventually BWC sent a questionnaire to Craft to determine if his eligibility
had changed. Upon receiving the answers to its questions, the BWC determined that
No. 13AP-762                                                                              3

Craft had been entitled to funds from DWRF for many years. The total due him was the
sizable sum of $121,442.86, covering almost 13 years of back payments.
      {¶ 8} Ford Motor Company did not want to pay the $121,442.86 to reimburse the
BWC and has fought paying it ever since. At first Ford Motor Company resisted paying by
pursuing appeals through the commission. When that failed, Ford Motor Company filed
this mandamus action.
      {¶ 9} The issues Ford Motor Company argues via its objections to the magistrate's
decision are the same issues argued before the magistrate. We cannot make significant
improvements upon the detailed analysis set forth by our magistrate, including exposition
of our past decisions on the key points. See the magistrate's decision appended hereto.
      {¶ 10} We overrule the objections to the magistrate's decision and adopt the
findings of fact and conclusions of law in the magistrate's decision. As a result, we deny
the request for a writ of mandamus.
                                                       Objections overruled; writ denied.

                           KLATT and DORRIAN, JJ., concur.
No. 13AP-762                                                                           4

                                   APPENDIX

                            IN THE COURT OF APPEALS OF OHIO

                               TENTH APPELLATE DISTRICT

The State of Ohio ex rel.                       :
Ford Motor Company,
                                                :
              Relator,                                           No. 13AP-762
                                                :
v.                                                            (REGULAR CALENDAR)
                                                :
The Industrial Commission of Ohio
and Bryan Craft,                                :

              Respondents.                      :




                            MAGISTRATE'S DECISION

                               Rendered on October 29, 2014



              Timothy J. Krantz, for relator.

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

              Bevan & Associates, and David S. Bates, for respondent
              Bryan Craft.


                                     IN MANDAMUS

       {¶ 11} Relator, Ford Motor Company, has filed this original action requesting that
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order by awarding Disabled Workers' Relief Fund ("DWRF")
benefits to respondent Bryan Craft ("claimant") beyond two years and ordering the
commission to find that the back payments are subject to the two-year limitation in R.C.
4123.52, or, in the alternative, find that the Ohio Bureau of Workers' Compensation
No. 13AP-762                                                                            5

("BWC") failed to comply with the statute that requires prompt inquiry of the permanent
total disability ("PTD") compensation status of an injured worker in order to ascertain
DWRF eligibility and relieve relator of the responsibility of paying claimant beyond the
two-year period.
Findings of Fact:
       {¶ 12} 1. Claimant sustained three separate industrial injuries while employed by
relator, a self-insured employer.
       {¶ 13} 2. Following a hearing held December 7, 1990, the commission issued an
interlocutory order awarding claimant PTD compensation in his 1975 claim for the period
December 8, 1990 to March 19, 1991.
       {¶ 14} 3. In an order mailed July 2, 1991, the commission extended the award of
PTD compensation to September 1, 1991.
       {¶ 15} 4. Following a hearing on October 30, 1991, the commission awarded
claimant PTD compensation from September 2, 1991 and continuing. Claimant's rate of
pay was $119.
       {¶ 16} 5. Claimant's date of birth is December 28, 1934.           As such, he was
approximately 57 years of age when the commission issued its final order awarding him
PTD compensation.
       {¶ 17} 6. Earlier, in January 1991, the BWC sent a letter to claimant advising him
that he may be entitled to DWRF benefits and requested information regarding his Social
Security Disability ("SSD") benefits. The letter explains:
                When a claimant has been declared permanently and totally
                disabled (PTD) by the Ohio Industrial Commission, he or she
                may be entitled to receive a supplemental award from the
                Disabled Workers' Relief Fund (DWRF). Under the
                provisions of this fund, the benefits a claimant receives from
                the Bureau and the disability benefits received from the
                Social Security Administration are combined. The total of
                these benefits is subtracted from the figure established as the
                DWRF entry level. If the combined amount of PTD and
                disability social security is under our entry level amount,
                then the claimant is paid DWRF benefits.

                At the present time we are attempting to determine your
                eligibility to participate in the DWRF fund. However, before
                we can complete our computations we need additional
No. 13AP-762                                                                              6

              information regarding your social security benefits. We are,
              therefore, requesting that you provide us with a statement
              indicating the rate of the disability social security benefits
              you have received, before [M]edicare deductions, from
              12/8/90 to 3/19/91.

        {¶ 18} 7. Claimant supplied the BWC with the requested information and
indicated that he was then receiving $953 per month in SSD benefits.
        {¶ 19} 8. In a letter dated February 7, 1991, the BWC informed claimant that,
because his total monthly compensation was currently over the maximum entitlement per
week, he was not entitled to receive DWRF benefits at that time.
        {¶ 20} 9. Between February 1991 through October 1995, the BWC sent
correspondence continuing to indicate that, based on his weekly rate, claimant was
ineligible to receive DWRF benefits.
        {¶ 21} 10. In October 1998, the BWC sent a letter addressed to relator and relator's
representative asking for information so the BWC could determine whether or not
claimant was entitled to receive DWRF benefits.
        {¶ 22} 11. The stipulated evidence contains a document apparently from claimant's
file identified as a claim inquiry and date stamped October 7, 2005. That document lists
claimant's birth date, the date on which he turned 65 years of age, as well as the date PTD
compensation began.
        {¶ 23} 12. It is undisputed that claimant turned 65 years of age on December 28,
1999.
        {¶ 24} 13. In October 2012 (nearly 13 years after claimant turned 65), the BWC
sent a questionnaire to relator indicating the BWC was reviewing claims paying PTD
compensation and asking relator to confirm claimant's rate of pay.
        {¶ 25} 14. Relator responded indicating that claimant's rate of pay was $119.
        {¶ 26} 15. In an order mailed November 7, 2012, the BWC notified claimant that
he was eligible to receive DWRF benefits and also informed claimant that he was entitled
to receive a back payment. Specifically, the order provides:
              You are eligible because [t]hrough communication with the
              Self Insured Employer, BWC learned that you are being paid
              permanent total disability and may be eligible to receive a
              DWRF benefit. Based on your permanent total disability
No. 13AP-762                                                                           7

              rate, you became eligible to receive DWRF effective
              12/01/1999 at retirement. Your permanent total disability
              rate is less than the DWRF entry level.

              Effective with the payment of 11/20/2012, your DWRF
              weekly rate will be $231.60.

              You also are entitled to receive a back payment in the
              amount of [$]121,442.86. This payment covers dates from
              12/01/1999 to 11/03/2012.

              You should receive your back payment within 10 days of
              receiving this order. Please note that this is not a change to
              your PTD workers' compensation payment. If you have any
              deductions being taken from your PTD, they are not reflected
              in this order but will continue to be deducted.

              You will receive 14 checks that equal your back payment of
              $121,442.85 mentioned above.

       {¶ 27} 16. Relator appealed and a hearing was held before a staff hearing officer
("SHO") on March 6, 2013. The SHO specifically found that claimant was entitled to
receive DWRF benefits and rejected relator's argument that because the BWC failed to
determine claimant's eligibility in a prompt manner, the payment should be limited to the
two-year limitation found in R.C. 4123.52, stating:
              Said Disabled Workers' Relief Fund benefits are ordered to
              commence effective 12/01/1999.

              Based on this order, the Injured Worker is entitled to
              Disabled Workers' Relief Fund benefits from 12/01/1999
              through 11/03/2012, and continuing, based on eligibility of
              Disabled Workers' Relief Fund benefits.

              Counsel for the self-insuring employer contends the above-
              ordered Disabled Workers' Relief Fund benefits are
              inappropriate. Counsel contends the Administrator failed to
              determine the Injured Worker's eligibility for these benefits
              in a prompt manner. Counsel contends an unreasonable
              length of time has lapsed and the benefits should be limited
              to the two year limitation of Ohio Revised Code Section
              4123.52. The employer's counsel's contention is not found
              persuasive.
No. 13AP-762                                                                                8

              The Staff Hearing Officer finds the Injured Worker remains
              eligible for the Disabled Workers' Relief Fund benefits
              ordered herein. Further, the benefits are not limited by the
              two year period referenced in Ohio Revised Code 4123.52.
              The Tenth Appellate District Court of Appeals addressed this
              specific question in the decision set forth in The Goodyear
              Tire and Rubber Co. et al., v. The Ohio Bureau of Workers'
              Compensation 1999 Ohio App. LEXIS 4494. The Court
              rejected a contention that there is a two year limit on any
              back benefit award for Disabled Workers' Relief Fund
              benefits. Specifically, the Court found that the Administrator
              is not statutorily barred from awarding back Disabled
              Workers' Relief Fund benefits to Injured Workers and billing
              the self-insuring employers for said benefits. Accordingly,
              the Staff Hearing Officer finds the Injured Worker is entitled
              to Disabled Workers' Relief Fund benefits from 12/01/1999
              through 11/03/2012 and continuing, based on eligibility of
              Disabled Workers' Relief Fund benefits.

       {¶ 28} 17. Relator filed a request for reconsideration asking the commission to
exercise its continuing jurisdiction arguing the BWC's failure to make inquiries to relator
concerning claimant for 14 years, the doctrine of laches should be applied to a limited
amount of back award to two years, and to R.C. 4123.52.
       {¶ 29} 18. Following a hearing on May 21, 2013, the commission determined that
it did not have authority to exercise continuing jurisdiction.
       {¶ 30} 19. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 31} For the reasons that follow, it is this magistrate's decision that relator has
not demonstrated that the commission abused its discretion and this court should deny
relator's request for a writ of mandamus.
       {¶ 32} 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).
       {¶ 33} The facts in this case are not in dispute. Claimant sustained a work-related
injury in 1975 and the DWRF provisions would likely apply to him once he turned 65
years of age and was no longer receiving SSD benefits. Claimant became eligible for
No. 13AP-762                                                                            9

DWRF benefits December 28, 1999.            It is further undisputed that it was not until
November 7, 2012 that the BWC notified both claimant and relator that claimant became
eligible for DWRF benefits on his 65th birthday and informed claimant that he was
entitled to receive back payment in the amount of $121,442.86.
      {¶ 34} Relator does not deny that it is statutorily required to reimburse the BWC
dollar-for-dollar for all DWRF benefits paid to claimant. Relator's entire argument rests
on its assertion that because the BWC failed to promptly notify relator that claimant was
eligible to receive DWRF benefits, the BWC should be collaterally estopped from
obtaining reimbursement from relator for any amounts owed to claimant beyond the two-
year limitation provided in R.C. 4123.52.
      {¶ 35} The BWC asserts that, as a self-insured employer, relator was and is
responsible for maintaining all records of workers' compensation claims and has a duty to
comply with all workers' compensation laws to make timely payments to its injured
workers. Further, the BWC argues that, pursuant to this court's ruling in Goodyear Tire
& Rubber Co. v. Bur. of Workers' Comp., 10th Dist. No. 98AP-1153 (Sept. 28, 1999), R.C.
4123.52 does not apply to DWRF benefits.
      {¶ 36} In 1953, the General Assembly enacted R.C. 4123.412, which created DWRF
benefits. DWRF benefits are paid to injured workers who are permanently and totally
disabled as a result of occupational injury or disease and whose workers' compensation
benefits, when combined with SSD benefits, fall below a statutorily mandated amount.
      {¶ 37} Originally, R.C. 4123.411 required the commission to levy an assessment
against all employers at a specified rate. In 1986, the General Assembly amended R.C.
4123.411, dramatically altering the mechanism by which DWRF was funded. Pursuant to
the amendment, non-self-insured private fund employers, county and taxing district
employers, and the state of Ohio as an employer, remain subject to the employer payroll
rate assessment. However, R.C. 4123.411(C) requires that self-insured employers directly
compensate the BWC for all amounts paid to qualifying injured workers regardless of the
date of their injury. Under this provision, the BWC makes DWRF benefits to the qualified
injured workers and thereafter collects the payment from the self-insured employer.
             R.C. 4123.416 requires:
             The administrator of workers' compensation shall promptly
             require of each [self-insured] employer * * * a verified list of
No. 13AP-762                                                                           10

               the names and addresses of all persons to whom the
               employer is paying workers' compensation on account of
               permanent and total disability and the evidence respecting
               such persons as the administrator reasonably deems
               necessary to determine the eligibility of any such person to
               participate in the disabled workers' relief fund.

         {¶ 38} Ohio Adm.Code 4123-17-29(B)(2) requires self-insured employers to be
billed on a semi-annual basis for DWRF benefits paid to injured workers.
         {¶ 39} Relator argues that its reimbursement to the DWRF fund is limited to the
two-year look back of R.C. 4123.52, which provides, in pertinent part:
               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.

         {¶ 40} For the reasons that follow, the magistrate finds relator's argument lacks
merit.
         {¶ 41} In Goodyear Tire, a group of self-insured employers brought a declaratory
judgment action seeking a determination of their liabilities to the DWRF fund under the
amendments to R.C. 4123.411 which altered the DWRF funding mechanism. These self-
insured employers argued that the BWC lacked authority to bill them for DWRF benefits
accrued to injured workers prior to the semi-annual billing period for which the bill is
assessed, regardless of whether the funds were actually disbursed by the BWC during the
billing period. In the alternative, they argued that, if the BWC is permitted to bill for
accumulated unpaid benefits, a two-year statutory limit exists to limit how far back such
payments may reach.
         {¶ 42} This court rejected those arguments, stating:
               Appellants initially contend that an employee's entitlement
               to DWRF payments should commence only upon the BWC's
               issuance of a determination of eligibility for subsidy based
               upon a shortfall in the claimant's combined workers'
               compensation and Social Security disability benefits. Under
               this interpretation, the BWC would have no statutory
               authority to make the large retroactive lump-sum payments
               to claimants for benefits accruing between the date of their
               eligibility for DWRF payments (based upon combined
               workers' compensation and social security benefits which fall
               below the statutory DWRF minimum) and the date upon
No. 13AP-762                                                                            11

              which the BWC makes an actual determination of claimant's
              eligibility. We find no support for this proposition in the
              statutes governing DWRF benefits.

Id. at 2.

       {¶ 43} This court specifically noted that an injured worker is entitled to receive
DWRF benefits without filing an application. This court noted that DWRF benefits begin
at the time an injured workers' specified workers' compensation and SSD benefits fall
below the statutory floor and not at the time the injured workers' file was reviewed and
evaluated by the BWC. Specifically, this court stated:
              Appellants alternatively argue that, if back DWRF can be
              paid by BWC, the period for which such back benefits could
              be paid, is limited by the express two-year statute of
              limitations upon changes to past awards by the Industrial
              Commission, R.C. 4123.52. DWRF benefits differ statutorily,
              however, from general workers' compensation benefits,
              which require a timely filed application. R.C. 4123.84 and
              4123.85. In contrast, the above-cited language from the
              DWRF statutes establishes that there is no duty on the
              claimant to apply for DWRF benefits in order to be eligible,
              since eligibility is "without application" and governed solely
              by the formula set forth in R.C. 4123.414. We therefore reject
              appellants' contention that there is a two-year limit on any
              back benefit award for DWRF claimants.

Id. at 3.

       {¶ 44} In reaching that conclusion, this court relied on several decisions from the
Supreme Court of Ohio, including Thompson v. Indus. Comm., 1 Ohio St.3d 244 (1982).
In Thompson, the Supreme Court specifically determined that DWRF benefits are
separate and distinct from workers' compensation benefits, and the fund is a separate
entity from the state insurance fund. In Wean Inc. v. Indus. Comm., 52 Ohio St.3d 266
(1990), the Supreme Court concluded that the application of the 1986 amendments to
claims with injury dates prior thereto was not unconstitutional retroactively because the
amendments only required the self-insured employer to pay a "current responsibility." As
applied prospectively, self-insured employers were only responsible to reimburse the
BWC for all past, present, and future employees eligible for DWRF benefits. In Dayton
Walther Corp. v. Indus. Comm., 10th Dist. No. 97APE06-746 (Apr. 30, 1998), this court
No. 13AP-762                                                                             12

extended the reasoning of Wean to conclude that the term "current responsibility"
addressed all current DWRF outlays regardless of the date of injury in relation to the date
the employer became self-insured. The application of the above case law leads to only one
conclusion: the commission did not abuse its discretion by requiring relator to reimburse
the BWC for DWRF benefits paid to claimant beyond the two-year period provided in R.C.
4123.52.
       {¶ 45} Relator makes several arguments urging this court to reconsider its
determination that DWRF benefits are not compensation. Specifically, relator points to
McHale v. Indus. Comm., 63 Ohio App. 479 (3d Dist.1940), wherein that court found that
payment by the commission of the fees to a physician attending to an injured worker
constituted the payment of compensation awarded on the account of injury within the
meaning of former R.C. 4123.52. Relator specifically points to the following language:
              The word "compensation" as used in Section 35 of Article II
              of the Constitution of Ohio, relating to workmen's comp-
              ensation, comprehends all payments and disbursements of
              every character made by the Industrial Commission to or for
              the benefit of workmen and their dependents, for death,
              injuries or occupational diseases, occasioned in the course of
              such workmen's employment.

Id. at 484.

       {¶ 46} For several reasons, the magistrate finds the McHale decision does not alter
the outcome here.
       {¶ 47} First, McHale was decided 40 years before the Supreme Court of Ohio's
decision in Thompson and nearly 60 years before this court's decision in Goodyear Tire.
Second, McHale involved that portion of R.C. 4123.52 which provides that no
modification or change, finding or award shall be made with respect to disability
compensation after ten years from the last payment of compensation or benefits. In such
a situation, an injured worker must make an application or file a motion. However,
because DWRF benefits are payable without the filing of an application, this court ruled
that the two-year look back period did not apply.
       {¶ 48} Relator also points to Armco, Inc. v. N. Assur. Co. of Am., 99 Ohio App.3d
545 (12th Dist.1994). In that case, an insurance company argued that it was not liable to
indemnify an employer for DWRF benefits because the insurance policy required it only
No. 13AP-762                                                                             13

to indemnify for payments made as workers' compensation benefits. Citing Thompson,
the insurance company argued that DWRF benefits are relief welfare and not workers'
compensation.
       {¶ 49} In Armco, the court stated that the Supreme Court of Ohio's determination
in Thompson that DWRF benefits were not compensation was, at best, elusive noting that
the court created this "fiction," "out of fear that a ruling declaring the DWRF program
unconstitutional would make 'a cruel mockery of the laudable purpose [of the
constitutional provision allowing for a workers' compensation program.]' Id., 1 Ohio St.3d
at 249." Armco, Inc. at 547. Despite this observation, the court followed the Supreme
Court's decision and found that, although DWRF benefits were not workers'
compensation, they were other benefits Armco was required to pay under the terms of its
policy. The court was not asked to define the term compensation for purposes of the
workers' compensation law.
       {¶ 50} Relator also points to this court's decision in Employers Reinsurance Corp.
v. Worthington Custom Plastics, Inc., 109 Ohio App.3d 550 (10th Dist.1996). Similar to
the Armco case, this court was asked to consider the express terms of agreements between
insurance companies and self-insured employers. This court found that DWRF benefits
were "benefits," as that term was used in the reinsurance policies. Just like the Armco
case, this case did not involve consideration of or definition of DWRF benefits under the
workers' compensation laws.
       {¶ 51} Applying the above-discussed cases, the magistrate finds that relator's
argument that the commission cannot award claimant DWRF benefits in excess of two
years back lacks merit.
       {¶ 52} Having determined that the commission could award claimant retroactive
DWRF benefits beyond the two-year period, the magistrate now considers relator's
argument that the doctrine of laches applies. For the reasons that follow, the magistrate
disagrees.
       {¶ 53} In order for the doctrine of laches to apply, one must establish: (1) an
unreasonable delay or lapse of time in asserting a right, (2) the absence of an excuse for
such delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice
to the other party. State ex rel. Case v. Indus. Comm., 28 Ohio St.3d 383 (1986).
No. 13AP-762                                                                              14

Relator's argument is premised in part on the fact that the BWC conducted an internal
claim inquiry in October 2005. At that time, the BWC had information that claimant had
turned 65 years old 6 years earlier and relator asserts the BWC should have notified them
at that time.
       {¶ 54} The commission counters relator's argument noting that relator's status as a
self-insured employer is a privilege and that relator has the ultimate responsibility for
administering workers' compensation claims to its injured workers. The BWC asserts that
relator, as claimant's employer, would have known his birth date and when he would turn
65 years of age. Further, relator would have known the relevance of turning 65 in terms of
claimant's receipt of SSD benefits. The BWC argues that the responsibility lies with
relator.
       {¶ 55} It can be said that both relator and the BWC failed to properly administer
claimant's claim. For several years, the BWC inquired about claimant's age and the rate at
which he was being paid PTD compensation specifically to determine whether or not
claimant was eligible for DWRF benefits. Likewise, relator was aware that claimant would
likely become eligible for DWRF benefits when he turned 65 years of age because of the
date of injury and the low rate at which he was being paid PTD compensation. The BWC
failed to promptly notify relator that claimant had become eligible for DWRF benefits and
relator failed to pay benefits which were owed to claimant. Relator appears to argue that,
if the BWC forgets to mail a bill to an employer and enough time passes, the employer is
no longer responsible for paying that bill. Relator owes claimant the money. Just because
the BWC pays injured workers their DWRF benefits and then bills the employer for those
sums does not change the fact that relator is the party ultimately liable to claimant for
those amounts.
       {¶ 56} Relator was not assessed a penalty for its failure to timely pay benefits nor
has relator been charged interest on the benefits due and owed to claimant. While this is
a large bill, there is no prejudice here where there is no dispute relator was obligated to
pay the benefits. While relator will argue that this outcome is not fair, the magistrate asks
if it would be fair to ask other employers to contribute the money to pay these benefits.
That is what would happen if the money came from a different fund. To the extent that
relator asserts that this money should come from the surplus fund, the magistrate
No. 13AP-762                                                                           15

disagrees. The surplus fund is used to reimburse self-insured employers who pay money
to an injured worker whose claim is ultimately disallowed. In that situation, the employer
paid compensation it was determined was not owed to an injured worker. Here, there is
no dispute: claimant was and is entitled to the money and relator is the party statutorily
obligated to pay the money. It is unfortunate that the BWC failed to promptly notify
relator; however, the magistrate finds that the commission did not abuse its discretion in
finding that relator remained liable for those amounts. Because it was indicated that the
claimant would receive 14 checks, relator may have been able to request that it reimburse
the BWC in 14 payments. However, the payment of benefits to claimant was and is
relator's responsibility.
       {¶ 57} At oral argument, counsel for relator argued that it was unknown what rate
the BWC used to calculate the back award, specifically pointing out that different rates
would have applied for different years. Relator did not make this argument until now.
Pursuant to State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78 (1997), this
court should not consider relator's question at this time.
       {¶ 58} Based on the forgoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion in finding that relator was liable
to reimburse the BWC for the entire amount of DWRF benefits paid to claimant because
the two-year limitation of R.C. 4123.52 does not apply.




                                                          /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).
