[Cite as State ex rel. Custom Staffing, Inc. v. Indus. Comm., 2016-Ohio-5943.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel.                                   :
Custom Staffing, Inc.,
                                                        :
                 Relator,                                                No. 15AP-830
                                                        :
v.                                                                 (REGULAR CALENDAR)
                                                        :
Industrial Commission of Ohio
and Coy A. Seibert,                                     :

                 Respondents.                           :




                                          D E C I S I O N

                                   Rendered on September 22, 2016


                 On brief: Rumer & Maisch Co., LLC, and Andrea M.
                 Brown, for relator.

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

                                             IN MANDAMUS

BROWN, J.
        {¶ 1} Relator, Custom Staffing, Inc., has filed an original action requesting this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order in which the commission exercised its continuing
jurisdiction and allowed the claim of respondent, Coy A. Seibert, and to enter a new order
denying said claim.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate. On April 27, 2016, the magistrate
issued the appended decision, including findings of fact and conclusions of law,
No. 15AP-830                                                                             2

recommending that this court deny relator's request for a writ of mandamus because
relator has a plain and adequate remedy at law. No objections have been filed to that
decision.
       {¶ 3} 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
recommendation, relator's request for a writ of mandamus is denied.
                                                               Writ of mandamus denied.

                  DORRIAN, P.J., and LUPER SCHUSTER, J., concur.

                            _______________________
[Cite as State ex rel. Custom Staffing, Inc. v. Indus. Comm., 2016-Ohio-5943.]

                                              APPENDIX
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel.                                   :
Custom Staffing, Inc.,
                                                        :
                 Relator,
                                                        :
v.                                                                               No. 15AP-830
                                                        :
Industrial Commission of Ohio                                              (REGULAR CALENDAR)
and Coy A. Seibert,                                     :

                 Respondents.                           :




                               MAGISTRATE'S DECISION

                                       Rendered on April 27, 2016



                 Rumer & Maisch Co., LLC, and Andrea M. Brown, for
                 relator.

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


                                             IN MANDAMUS

        {¶ 4} Relator, Custom Staffing, Inc., 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 wherein, after exercising its continuing jurisdiction, the
commission allowed the claim of Coy A. Seibert, and ordering the commission to deny
Seibert's claim.
No. 15AP-830                                                                                4

Findings of Fact:
        {¶ 5} 1. Seibert alleged that he sustained a work-related injury on September 10,
2014.
        {¶ 6} 2. On September 17, 2014, Seibert filed an application for workers'
compensation benefits.
        {¶ 7} 3. In an order mailed October 15, 2014, the Ohio Bureau of Workers'
Compensation ("BWC") allowed Seibert's claim for: "sub agg pre-ex lumbar sprain." In
that order, the BWC indicated that Seibert's request that lumbar disc bulge/herniation
was neither allowed nor disallowed because Seibert had not provided sufficient medical
documentation to support the allowance of that condition. The order also provided that
medical benefits would be paid in accordance with the BWC rules and guidelines, that the
BWC would consider compensation benefits based on medical evidence of continued
disability and/or wage information, and that Seibert may be eligible for rehabilitation
services.
        {¶ 8} The order included the standard language notifying the parties that each
had 14 days from the receipt of the order to file a written appeal.
        {¶ 9} 4. On October 22, 2014, Seibert filed an objection (appeal) to the
October 15, 2014 BWC order noting the following reason: "I have been gaining [sic] to
[F]oster chiropractic for several weeks. I have not had any relief in pain. I am set up to see
a surgeon on 10/30/2014." Seibert indicated: "Notice of this objection was given to
employer's representative or employer by phone call on 10/22/2014."
        {¶ 10} 5. The next day, October 23, 2014, the BWC issued another order stating
that it was replacing the October 15, 2014 BWC order. Specifically, the following reason
was given:
              This order replaces the BWC order dated 10-15-2014, which
              has been vacated for the following reason: The type of
              compensation identified on the previous order is being
              modified.

              The decision to vacate the previous order is based on: The
              previous order did not address wages or compensation.

        {¶ 11} Pursuant to this new order, Seibert's claim remained allowed for "sub agg
pre-ex lumbar sprain" and further awarded temporary total disability ("TTD")
No. 15AP-830                                                                            5

compensation beginning September 11, 2014, indicated he may be eligible for
rehabilitation services, and determined his full weekly wage ("FWW") and average weekly
wage ("AWW").
       {¶ 12} This order also provided notice to the parties of the 14-day period in which
to file an objection.
       {¶ 13} 6. On November 6, 2014, relator filed an appeal from the October 23, 2014
order challenging the allowance of Seibert's claim. Relator's appeal did not mention the
award of compensation.
       {¶ 14} 7. Both appeals were heard before a district hearing officer ("DHO") on
December 4, 2014. As a preliminary matter, the DHO construed relator's appeal timely,
stating:
               As a preliminary issue, this District Hearing Officer vacates
               the order of the Administrator issued 10/23/2014. The
               Bureau of Workers' Compensation did not have appropriate
               jurisdiction to issue its 10/23/2014 order vacating its
               previous order issued 10/15/2014 as that order had been
               appealed by the Injured Worker on 10/22/2014. Although
               this District Hearing Officer acknowledges that the Employer
               did not appeal the initial 10/15/2014 order, this District
               Hearing Officer construes the Employer's 11/06/2014 appeal
               as a timely filed appeal as the Employer was under the
               impression that the 10/23/2014 administrative order had
               been properly issued.

               Thereafter, the DHO denied Seibert's claim in its entirety.
       {¶ 15} 8. On December 23, 2014, Seibert appealed the December 4, 2014 DHO
order arguing: "The Industrial Commission has no jurisdiction to issue a DHO order in
this claim."
       {¶ 16} 9. Seibert's appeal was heard before a staff hearing officer ("SHO") on
January 21, 2015. First, the SHO determined that, because Seibert had filed an appeal
from the October 15, 2014 order, the BWC did not have jurisdiction to vacate that order
and issue a new order on October 23, 2014. Thereafter, the SHO determined that,
although relator did not timely appeal the October 15, 2014 BWC order, relator did timely
appeal the October 23, 2014 order which relator believed to be a valid order based on
relator's argument that it lacked notice of Seibert's appeal. Specifically, the SHO order
provides:
No. 15AP-830                                                                              6

              Based upon the Claimant filing an appeal, to the order issued
              10/15/2014, on 10/22/2014, the Bureau of Workers'
              Compensation had no jurisdiction to issue its order of
              10/23/2014 vacating the order of 10/15/2014 and the order
              issued 10/15/2014 remained in full force and effect.
              This raises the question of jurisdiction for the Industrial
              Commission to address the matter of claim allowance as the
              Employer did not file an appeal to the Bureau order of
              10/15/2014 which allowed the claim. The Employer filed an
              appeal on 11/06/2014 to the Bureau order of 10/23/2014.
              This appeal was filed 22 days after the Bureau issued the
              allowance order of 10/15/2014, beyond the statutory appeal
              period. The Employer argued that they were unaware of the
              Claimant's appeal and could have appealed the first Bureau
              order through 10/31/2014, but did not do so due to the
              "new" order issued 10/23/2014, which was appealed within
              the statutory timeframe for that order on 11/06/2014.

              The Employer did not appeal the 10/15/2014 order, but did
              timely appeal the "new" order of 11/23/2014 [sic], which it
              believed to be a valid order based upon their lack of notice of
              the Claimant's appeal. As such, this Staff Hearing Officer
              finds any mistake of fact such that the Industrial
              Commission should assume jurisdiction over the matter and
              invokes the authority of continuing jurisdiction pursuant to
              R.C. 4123.52 and case law of State ex rel. Nicholls v. Indus.
              Comm. (1998), 81 Ohio St.3d 454, and State ex rel. Foster v.
              Indus. Comm. (1999), 85 Ohio St.3d 320.

              Thereafter, the SHO disallowed Seibert's claim in its entirety.
       {¶ 17} 10. Seibert's appeal was refused by order of the commission mailed
February 12, 2015.
       {¶ 18} 11. Seibert filed a request for reconsideration and, in an interlocutory order
mailed April 2, 2015, the commission set relator's request for reconsideration for hearing,
stating:
              It is the finding of the Industrial Commission the Injured
              Worker has presented evidence of sufficient probative value
              to warrant adjudication of the Request for Reconsideration
              regarding the alleged presence of a clear mistake of law of
              such character remedial action would clearly follow.

              Specifically, it is alleged the Staff Hearing Officer, in his
              order [mailed] 01/24/2015, did not have jurisdiction to
              address the merits of the allowance of claim issue, because
No. 15AP-830                                                                             7

              the Injured Worker had withdrawn his appeal, filed
              10/22/2014, from the order of the Administrator, issued
              10/15/2014, which had found the claim compensable and
              from which no other party had filed an appeal.

              The order issued 02/12/2015 [refusing Seibert's appeal] is
              vacated, set aside and held for naught.

              Based on these findings, the Industrial Commission directs
              the Injured Worker's Request for Reconsideration, filed
              02/27/2015, is to be set for hearing to determine whether
              the alleged mistake of law as noted herein is sufficient for the
              Industrial Commission to invoke its continuing jurisdiction.

       {¶ 19} 12. The matter was heard before the commission on April 21, 2015. The
commission granted Seibert's request for reconsideration, vacated the SHO order which
followed the January 21, 2015 hearing and found that the BWC did not have jurisdiction
to vacate the October 15, 2014 order following Seibert's timely appeal, stating:
              The Commission finds the Administrator did not have
              jurisdiction to issue its order of 10/23/2014, vacating the
              order of 10/15/2014. The Commission finds the Injured
              Worker filed a timely appeal to the 10/15/2014 order on
              10/22/2014, and as such, the Administrator did not have
              continuing jurisdiction to vacate its 10/15/2014 order.

              The Commission further finds the Employer did not file an
              Appeal to the Administrator's order of 10/15/2014, and when
              the Injured Worker withdrew his Appeal to the 10/15/2014
              order at the 12/04/2014 District Hearing Officer hearing, the
              Industrial Commission no longer had jurisdiction over the
              10/15/2014 order to adjudicate the issue of the allowance of
              the claim.

              Accordingly, the Commission finds the Administrator's
              order, dated 10/15/2014, remains in full force and effect.

       {¶ 20} 13. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 21} Because relator has or had a plain and adequate remedy at law by way of an
appeal under R.C. 4123.512, it is the magistrate's decision that this court should deny
relator's request for a writ of mandamus.
No. 15AP-830                                                                              8

       {¶ 22} This action is controlled by State ex rel. Alhamarshah v. Indus. Comm., 142
Ohio St.3d 524, 2015-Ohio-1357.
       {¶ 23} In Alhamarshah, the claimant filed an application for workers'
compensation benefits, and the Bureau of Workers' Compensation allowed the claim. The
employer then faxed some documents to the bureau, which a bureau employee construed
as a notice of appeal. The commission accepted the appeal, and a hearing officer
disallowed the claim. The claimant then filed a complaint for a writ of mandamus in the
court of appeals, asserting that the commission abused its discretion by determining that
the faxed documents amounted to a notice of appeal.
       {¶ 24} The commission's determination that the faxed documents complied with
the statutory requirements for a notice of appeal was a decision which "conferred
jurisdiction on the commission to proceed to consider the merits of the purported
employer's appeal." Id.     As the "commission's exercise of jurisdiction resulted in a
decision denying the claimant's right to participate in the workers' compensation system,"
the Supreme Court held that the "decision allowing the appeal to proceed was essential to
the ultimate determination that denied the claimant's participation in the workers'
compensation system." Id. As such, the court found that "the commission's decision to
accept the appeal as valid was appealable pursuant to R.C. 4123.512," and the claimant
thus "had an adequate remedy in the ordinary course of law by way of an appeal under
R.C. 4123.512." Id. at ¶ 12-13.
       {¶ 25} Here, although relator does not discuss the Alhamarshah case in either its
brief or reply brief, it is clear that relator has or had a plain and adequate remedy at law
that bars relief in mandamus. Relator's right to appeal to the common pleas court
pursuant to R.C. 4123.512 is a plain and adequate remedy at law requiring denial of the
requested writ.
       {¶ 26} Relator also asserts that its due process rights have been violated.       In
proceedings before the commission, procedural due process includes: (1) the right to a
reasonable notice of hearing, and (2) the right to a reasonable opportunity to be heard.
State ex rel. Steinbrunner v. Indus. Comm., 10th Dist. No. 05AP-626, 2006-Ohio-3444.
The right to a reasonable opportunity to be heard includes reasonable notice of the time,
date, location, and subject matter of the hearing. Id. at ¶ 16.
No. 15AP-830                                                                             9

       {¶ 27} Relator asserts that it was reasonable to believe that the October 23, 2014
order was valid and timely filed.       Based on that reliance, relator asserts that its
November 6, 2014 appeal must be accepted as timely.
       {¶ 28} While the magistrate can appreciate relator's argument following
Alhamarshah, it cannot be said that the commission's ultimate decision was not essential
to the ultimate determination that granted Seibert's participation in the workers'
compensation system. Although relator has effectively been denied the opportunity to
challenge the allowance of Seibert's claim before the commission, relator can appeal the
allowance of the claim to the common pleas court. At that time, Seibert must prove anew
that he is entitled to participate in the workers' compensation system for the conditions
which he alleges he has as a result of a work-related injury. Relator still has an adequate
remedy in the ordinary course of law.
       {¶ 29} Based on the foregoing, it is the magistrate's decision that, because relator
has a plain and adequate remedy at law, this court should deny relator's request for a writ
of mandamus.


                                              /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).
[Cite as State ex rel. Custom Staffing, Inc. v. Indus. Comm., 2016-Ohio-5943.]
