[Cite as State ex rel. Rumpke Consol. Cos., Inc. v. Indus. Comm., 2017-Ohio-6988.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Rumpke Consolidated                      :
Companies, Inc.,
                                                       :
                 Relator,                                                 No. 16AP-48
                                                       :
v.                                                                (REGULAR CALENDAR)
                                                       :
Dajueneanti Montague, and
Industrial Commission of Ohio,                         :

                 Respondents.                          :




                                         D E C I S I O N

                                       Rendered on July 27, 2017


                 On brief: Barno Law, LLC, Jamison S. Speidel, John A.
                 Barno, and Zeboney Barrañada, for relator.

                 On brief: Michael DeWine, Attorney General, and
                 LaTawnda N. Moore, for respondent Industrial Commission
                 of Ohio.

                 On brief: Gloria P. Castrodale, Attorney at Law, for
                 respondent Dajueneanti Montague.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.
        {¶ 1} Relator, Rumpke Consolidated Companies, Inc. ("Rumpke"), has filed this
original action requesting that this court issue a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to vacate the November 13, 2015 order of
its staff hearing officer ("SHO") that denied relator's October 20, 2015 motion for R.C.
4123.522 relief, and to enter an order granting relief.
No. 16AP-48                                                                                   2

       {¶ 2} This court referred the matter to a court-appointed magistrate pursuant to
Civ.R. 53 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, and
recommended that this court deny Rumpke's writ of mandamus. Rumpke has filed
objections to the magistrate's decision.
       {¶ 3} We address Rumpke's objections together. Rumpke argues in its first
objection that the magistrate erred in that the commission has a duty to specifically
address critical issues and the mere recitation of the "mailbox rule" to deny a request for
relief without any indication that the commission considered the rebuttable presumption
is an abuse of discretion in that it clearly fails to address a critical issue. Rumpke argues in
its second objection that the magistrate erred in that he incorrectly assumed the
commission considered all evidence in reaching its decision, but the commission's order
fails to indicate that any evidence was reviewed or considered. Rumpke argues in its third
objection that the magistrate erred when he relied on the court's ruling in State ex rel.
Nerlinger v. AJR Ents., Inc., 116 Ohio St.3d 314, 2007-Ohio-6438 ("Nerlinger II"),
because, although there is no requirement for the commission to list all evidence
considered, it must review and consider it all in reaching its decision, and a mere
recitation of the rebuttable presumption does not address the critical issue of whether the
rebuttable presumption was overcome.
       {¶ 4} Rumpke raises in its objections the same arguments it raised before the
magistrate. However, we agree with the magistrate that Nerlinger II is on point and
controlling authority in this case. The facts and arguments in Nerlinger II are strikingly
similar to those here. In both this case and in Nerlinger II, the notice and/or order were
mailed to the complaining party's correct address, the complaining party filed an affidavit
indicating that it never received the notice and/or order, and the complaining party
argued that the SHO's order did not contain an adequate explanation for denying relief
because it did not reference the affidavit. The Supreme Court of Ohio found in Nerlinger
II that the commission was not required to explain why the affidavit was unpersuasive.
The court in Nerlinger II affirmed our decision in State ex rel. Nerlinger v. AJR Ents.,
Inc., 10th Dist. No. 05AP-1207, 2006-Ohio-6143 ("Nerlinger I"). In Nerlinger I, this court
found that if the commission lists only the evidence relied on, omission does not raise the
No. 16AP-48                                                                               3

presumption that the evidence was overlooked, and there is no requirement that the
commission list all evidence considered. We also noted in Nerlinger I that nothing in the
record suggested that relator did not have an opportunity to present evidence or the SHO
did not consider all of the evidence relator did present, including the affidavit. We
concluded that, despite the absence of an explicit credibility determination, the SHO's
order identified the evidence on which the SHO relied to make his determination—
evidence that was sufficient to create a rebuttable presumption, which relator apparently
failed to overcome—and that was all that was required.
      {¶ 5} Nerlinger I and II address all of Rumpke's arguments included in its
objections. Based on those two cases, the commission, in the present case, was not
required to indicate that it considered the rebuttable presumption included in the
"mailbox rule," the commission was not required to indicate that the affidavit was
reviewed, and there is no evidence in the record that the commission did not review and
consider all of the evidence—including the affidavit—in reaching its decision. Although we
understand Rumpke's frustration with the commission's vague rationale for its decision,
we are constrained to follow Nerlinger I and II and overrule Rumpke's three objections.
      {¶ 6} Accordingly, after an examination of the magistrate's decision, an
independent review of the record, pursuant to Civ.R. 53, and due consideration of
Rumpke's objections, we overrule its objections and adopt the magistrate's findings of fact
and conclusions of law. Rumpke's request for a writ of mandamus is denied.
                                                                    Objections overruled;
                                                               writ of mandamus denied.

                         TYACK, P.J., and DORRIAN, J., concur.

                               ___________________
[Cite as State ex rel. Rumpke Consol. Cos., Inc. v. Indus. Comm., 2017-Ohio-6988.]

                                              APPENDIX
                                IN THE COURT OF APPEALS OF OHIO

                                     TENTH APPELLATE DISTRICT

The State ex rel.                                        :
Rumpke Consolidated Companies, Inc.,
                                                         :
                   Relator,
                                                         :
v.                                                                                No. 16AP-48
                                                         :
Dajueneanti Montague,                                                       (REGULAR CALENDAR)
And                                                      :
Industrial Commission of Ohio,
                                                         :
                   Respondents.
                                                         :


                                 MAGISTRATE'S DECISION

                                       Rendered on October 5, 2016


                   Barno Law, LLC, Jamison S. Speidel, John A. Barno, and
                   Zeboney Barrafiada, for relator.

                   Michael DeWine, Attorney General, and LaTawnda N.
                   Moore, for respondent Industrial Commission of Ohio.


                                              IN MANDAMUS

           {¶ 7} In this original action, relator, Rumpke Consolidated Companies, Inc.,
requests a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate the November 13, 2015 order of its staff hearing officer ("SHO")
that denies relator's October 20, 2015 motion for R.C. 4123.522 relief, and to enter an
order granting relief.
Findings of Fact:
           {¶ 8} 1. On November 10, 2014, Dajueneanti1 Montague ("claimant") injured her
left knee while employed with relator, a self-insured employer under Ohio's workers'

1   The spelling of claimant's first name is taken from the complaint and answer filed in this action.
No. 16AP-48                                                                                5

compensation laws. The injury occurred when she was climbing down the ladder of a
truck and twisted her left knee.
        {¶ 9} 2. The industrial claim (No. 14-859995) was initially allowed for "left knee
sprain; left knee lateral meniscus tear; left knee medial meniscus tear."
        {¶ 10} 3. On June 18, 2015, claimant moved for additional claim allowances.
        {¶ 11} 4. By letter dated June 18, 2015, relator's third-party administrator ("TPA")
informed claimant that relator objects to the motion and requests that the issue be set for
hearing.
        {¶ 12} 5. On June 24, 2015, Barno Law, LLC, filed with the Ohio Bureau of
Workers'     Compensation     ("bureau")     a   form   captioned   "Employer   Authorized
Representative," which is designated by the bureau as an "R-1." On the form, Barno Law,
LLC indicated that it was relator's representative in the industrial claim. It further
indicated on the form that its address is:
              P.O. Box 91155
              Cols., OH 43209

        {¶ 13} 6. On August 29, 2015, the commission mailed notice of hearing before a
district hearing officer ("DHO") scheduled for Thursday, September 17, 2015, at 11:00
a.m., regarding the requested additional claim allowances. The notice states that it was
being mailed to:
              Barno Law LLC
              PO Box 91155
              Columbus Ohio 43209-7155

        {¶ 14} The notice also states that it was being mailed to Rumpke and to Rumpke's
TPA at their respective addresses.
        {¶ 15} 7. Following the September 17, 2015 hearing, the DHO mailed an order
additionally allowing the claim for "Disc Herniation L4-L5" and "Disc Herniation L5-S1."
        {¶ 16} The DHO's order states that "Mr. Speidel" appeared for the employer. "Ms.
Montague [and] Mr. Sommer" appeared for the injured worker.
        {¶ 17} The DHO's order states that it was mailed September 22, 2015. Rumpke
and Rumpke's TPA are among those listed that were mailed a copy of the order. Also
listed is:
              Barno Law LLC
              PO Box 91155
              Columbus OH 43209-7155
No. 16AP-48                                                                            6


       {¶ 18} 8. On October 20, 2015, relator, through counsel, Barno Law, LLC, filed an
online request for R.C. 4123.522 relief. The online request states:
              Reason for Relief: Employer's representative did not receive
              the DHO order published from the IC hearing held on
              09/17/2015 because it was mailed to the proper address, but
              never received. It is requested that the Appeal filed on
              10/20/2015 be deemed timely.

       {¶ 19} 9. Also on October 20, 2015, relator, through counsel, Barno Law, LLC,
filed an online appeal. The online appeal states:
              Reason for appeal:
              BARNO LAW did NOT receive a copy of the DHO order until
              being notified of the DHO order from the employer's TPA.
              BARNO LAW is filing a corresponding .522 [sic] Motion
              today requesting relief.

              ***

              Additional evidence will be submitted.

(Emphasis sic.)

       {¶ 20} 10. In support of its appeal and online request for R.C. 4123.522 relief,
relator, through counsel, filed the affidavit of Joanie Damron executed October 20, 2015.
The Damron affidavit avers:
              I am the legal assistant to John C. Barno at Barno Law LLC,
              the designated legal representative for Rumpke
              Consolidated Companies, the employer, in this claim,
              and have personal knowledge of the facts in this affidavit:

              1) As legal assistant at Barno Law LLC, it is my responsibility
              to retrieve and enter mail from our PO Box, including
              Industrial Commission notices and orders.

              2) At no time did Barno Law LLC receive the DHO order
              from the 9/17/15 hearing.

              3) The failure to receive the order was not due to neglect or
              fault by the employer, and the local post office did not deliver
              this order.

              4) Since Barno Law LLC is a paperless office, attached as
              Exhibit A is a print out of the documents contained in our
              electronic file, of which the 9/17/15 DHO order is not listed.
No. 16AP-48                                                                              7


              5) The employer would request the Commission permit the
              appeal, filed on 10/20/15, be considered timely since Barno
              Law LLC did not receive the DHO order, and had no actual
              knowledge of the order until 10/20/15.

              The Affiant Further Sayeth Naught.

       {¶ 21} 11. Following a November 13, 2015 hearing, an SHO issued an order
denying relator's October 20, 2015 request for R.C. 4123.522 relief. The SHO's order
explains:
              It is the order of the Staff Hearing Officer that the
              Employer's Representative's request for relief, filed
              10/20/2015, is denied.

              It is found that a copy of the order of the District Hearing
              Officer, issued 09/22/2015, was properly issued to the
              correct address of the Employer's Representative. Therefore,
              pursuant to R.C. 4123.522, the request for relief is denied.
              The order of the District Hearing Officer remains in full force
              and effect.

       {¶ 22} 12. On December 19, 2015, the three-member commission mailed an order
denying relator's request for reconsideration of the SHO's order of November 13, 2015.
       {¶ 23} 13. On January 22, 2016, relator filed this mandamus action.
Conclusions of Law:
       {¶ 24} The SHO's order of November 13, 2015 denies R.C. 4123.522 relief based on
the finding that the DHO's order of September 17, 2015 "was properly issued to the
correct address of the Employer's Representative." That is, the DHO's order was correctly
mailed to the address that Barno Law, LLC indicated on the R-1 form filed with the
bureau on June 24, 2015. On that basis, R.C. 4123.522 relief was denied.
       {¶ 25} Relator contends that it did not receive the DHO order notwithstanding that
it was mailed to the correct address. In support, relator submitted the Damron affidavit
with an attached exhibit.
       {¶ 26} The SHO's order does not mention the Damron affidavit. The SHO's order
does not explain why the affidavit was apparently found to be unpersuasive.
       {¶ 27} Here, relator contends that the commission abused its discretion by failing
to address the credibility of the affidavit and its exhibit. The magistrate disagrees. The
commission did not abuse its discretion.
No. 16AP-48                                                                         8

      {¶ 28} R.C. 4123.522 provides:

              The     employee,    employer,      and     their    respective
              representatives are entitled to written notice of any hearing,
              determination, order, award, or decision under this chapter
              * * *. An employee, employer, * * * is deemed not to have
              received notice until the notice is received from the
              industrial commission or its district or staff hearing officers,
              * * * by both the employee and his representative of record,
              both the employer and his representative of record * * *.

              If any person to whom a notice is mailed fails to receive the
              notice and the commission, upon hearing, determines that
              the failure was due to cause beyond the control and without
              the fault or neglect of such person or his representative and
              that such person or his representative did not have actual
              knowledge of the import of the information contained in the
              notice, such person may take the action afforded to such
              person within twenty-one days after the receipt of the notice
              of such determination of the commission. Delivery of the
              notice to the address of the person or his representative is
              prima-facie evidence of receipt of the notice by the person.

      {¶ 29} In Weiss v. Ferro Corp., 44 Ohio St.3d 178, 180 (1989), the Supreme Court
of Ohio had occasion to analyze R.C. 4123.522. The court states:
              There is a rebuttable presumption, sometimes called the
              "mailbox rule" that, once a notice is mailed, it is presumed to
              be received in due course. (Citations omitted.) R.C. 4123.522
              provides that such presumption may, upon application to the
              Industrial Commission, be rebutted by evidence which shows
              that the addressee did not receive the mailed notice, and
              "* * * that such failure was due to cause beyond the control
              * * *" of that person.

      {¶ 30} In LTV Steel Co. v. Indus. Comm., 88 Ohio St.3d 284 (2000), the Supreme
Court had further occasion to analyze R.C. 4123.522:
              Employers and their representatives are entitled to receive
              notice from the commission under R.C. 4123.522, but that
              right is not self-executing. As the court of appeals found, the
              party alleging the failure to receive notice must first prove
              that (1) the failure of notice was due to circumstances beyond
              the party's or the party's representative's control, (2) the
              failure of notice was not due to the party's or the party's
              representative's fault or neglect, and (3) neither the party nor
              the party's representative had prior actual knowledge of the
              information contained in the notice. Weiss v. Ferro Corp.
              (1989), 44 Ohio St.3d 178, 180, 542 N.E.2d 340, 342. Only if
No. 16AP-48                                                                               9

               the commission makes these findings does the moving party
               become unconditionally entitled to what amounts to a
               second notice of a commission order. This second
               "reconstituted" notice actually comes from the commission
               upon the determination that the moving party has rebutted
               the mailbox-rule presumption and that it is the one from
               which the new twenty-one-day appeal time is activated.

(Emphasis sic.) Id. at 286-87.

         {¶ 31} State ex rel. Nerlinger v. AJR Ents., Inc., 116 Ohio St.3d 314, 2007-Ohio-
6438, ("Nerlinger II"), which affirmed this court's judgment in State ex rel. Nerlinger v.
AJR Ents., Inc., 10th Dist. No. 05AP-1207, 2006-Ohio-6143, ("Nerlinger I"), are
dispositive.
         {¶ 32} On September 18, 2003, John P. Nerlinger filed an application for workers'
compensation benefits. Nerlinger alleged that he sustained chemical burns to both hands
while employed with AJR Enterprises, Inc., a state-fund employer. On the application
form, Nerlinger listed his home mailing address as:
               1050 Noyes Avenue
               Hamilton, Ohio 45015-2032

Nerlinger I at ¶ 16.

         {¶ 33} On September 9, 2003, the bureau mailed an order allowing the industrial
claim for "first degree burn bilateral hand." Id. at ¶ 17.
         {¶ 34} AJR Enterprises administratively appealed the bureau's September 9, 2003
order.
         {¶ 35} On October 11, 2003, the commission mailed to Nerlinger a hearing notice
specifying the date, time, and location of a hearing to be held before a DHO on the issue of
the application for benefits. Nerlinger did not appear for the hearing, nor did he appeal
the DHO's October 30, 2003 order which indicated his absence from the hearing, and the
commission's denial of benefits.
         {¶ 36} On January 18, 2005, Nerlinger moved for R.C. 4123.522 relief. In support,
Nerlinger submitted his affidavit executed December 29, 2004, stating:
               John Nerlinger states that he is the injured worker in Ohio
               BWC Claim No. 02-886835 for injuries sustained on
               September 24, 2002. The Affiant further states that he failed
               to receive a copy of the Notice of Hearing nor did he receive a
               copy of the District Hearing Officer's order from the hearing
No. 16AP-48                                                                     10

               conducted on October 30, 2003. Affiant submits that the
               failure to receive these documents was through no fault of
               his own.

Id. at ¶ 23.

        {¶ 37} Following an April 13, 2005 hearing, an SHO issued an order denying
Nerlinger R.C. 4123.522 relief. The SHO's order explains:
               It is the order of the Staff Hearing Officer that the injured
               worker's Motion filed 01/08/2005, is denied.

               A copy of the [DHO's] findings mailed 11/01/2003 was
               properly mailed to the correct address of the injured worker.

               A copy of the notice of hearing for the hearing of the [DHO]
               dated 10/30/2003 [sic] was properly mailed to the correct
               address of the injured worker.

               The Staff Hearing Officer denies the injured worker's request
               for relief * * *.

Id. at ¶ 7.

       {¶ 38} In denying the writ, this court explained:

               Before the magistrate, relator argued that the SHO's order
               did not contain an adequate explanation for denying relief,
               thus violating State ex rel. Noll v. Indus. Comm. (1991), 57
               Ohio St.3d 203, 567 N.E.2d 245, and State ex rel. Mitchell v.
               Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 6 Ohio B.
               531, 453 N.E.2d 721. In particular, the order did not
               reference relator's affidavit. On that point, relator directed
               attention to State ex rel. Fultz v. Indus. Comm. (1994), 69
               Ohio St.3d 327, 1994 Ohio 426, 631 N.E.2d 1057, in which
               the Ohio Supreme Court returned a case to the commission
               for further review and clarification because the commission
               omitted two reports from its list of the evidence considered.

               In State ex rel. Rothkegel v. Westlake (2000), 88 Ohio St.3d
               409, 410, 2000 Ohio 364, 727 N.E.2d 869, however, the
               Supreme Court explained that Fultz "applies only where the
               disputed [permanent total disability] order lists the evidence
               considered and omits a report from that list. In such a case,
               the evidence omitted is presumed to have been ignored."
               (Emphasis omitted.) However, where "the commission lists
               only the evidence relied upon, omission does not raise the
               presumption that the evidence was overlooked." Id. Even
               though the commission must " 'consider all evidence
No. 16AP-48                                                                            11

                  properly before it, it is not required to list each piece of
                  evidence that it considered in its order.' " Id. at 411, quoting
                  State ex rel. Buttolph v. Gen. Motors Corp., Terex Div.
                  (1997), 79 Ohio St.3d 73, 77, 679 N.E.2d 702. Rather, under
                  Mitchell, the commission must " 'enumerate in its order
                  "only that evidence which has been relied upon to reach their
                  conclusion[."] * * * There is no requirement that the
                  commission list all evidence considered.' " (Emphasis
                  omitted.) Rothkegel at 411, quoting Buttolph at 77. Accord
                  State ex rel. Consol. Coal Co. v. Indus. Comm., Franklin App.
                  No. 05AP-581, 2006-Ohio-3908.

                  As applied here, nothing in the record suggests that relator
                  did not have an opportunity to present evidence or that the
                  SHO did not consider all of the evidence relator did present,
                  including his affidavit. Rather, the record shows that a
                  hearing was held, and relator appeared. Relator does not
                  argue that he did not have a hearing, that he could not
                  present evidence or that he had additional evidence or
                  defenses that were excluded. Instead, he argues only that the
                  SHO's order was inadequate. We find, however, that, despite
                  the absence of an explicit credibility determination, the
                  SHO's order identified the evidence upon which the SHO
                  relied to make his determination--evidence that was
                  sufficient to create a rebuttable presumption, which relator
                  apparently failed to overcome. Neither Mitchell nor Noll
                  requires more.

Id. at ¶ 11-13.

       {¶ 39} Following this court's judgment that denied the writ, Nerlinger appealed as
of right to the Supreme Court. In Nerlinger II, the Supreme Court affirmed the judgment
of this court, explaining:
                  In this appeal as of right, we examine the Industrial
                  Commission of Ohio's authority to reject a workers'
                  compensation claimant's affidavit as unpersuasive. Upon
                  review, we find no abuse of discretion.

                  ***
                  A staff hearing officer denied Nerlinger's motion after
                  finding that both documents sent by the commission had
                  been "properly mailed to the correct address of the injured
                  worker." Nerlinger's motion for reconsideration was denied.

                  Nerlinger filed a complaint in mandamus in the Court of
                  Appeals for Franklin County. The magistrate believed that
                  the commission's order was deficient because it did not make
No. 16AP-48                                                                                 12

               an express determination on the credibility of Nerlinger's
               affidavit. The magistrate recommended that a writ issue and
               that the cause be returned to the commission for further
               consideration and an amended order. The court of appeals
               did not adopt that report, holding that the commission was
               not required to explain why it had found a particular piece of
               evidence unpersuasive. It accordingly denied the writ,
               prompting Nerlinger's appeal as of right to this court.

               As we explained in State ex. rel. Cherryhill Mgmt. v. Indus.
               Comm., 116 Ohio St.3d 27, 2007 Ohio 5508, 876 N.E.2d 525,
               the commission is exclusively responsible for evaluating the
               weight and credibility of the evidence and need not explain
               why an affidavit is unpersuasive. We therefore affirm the
               judgment of the court of appeals.

Nerlinger II at ¶ 1, 5-7.

       {¶ 40} Nerlinger I and II compel denial of the writ here. The SHO who issued the
order of November 13, 2015 was not required to explain why she rejected the Damron
affidavit as lacking credibility.
       {¶ 41} As the Weiss court explained, there is a rebuttable presumption, sometimes
called the "mailbox rule" that, once a notice is mailed, it is presumed to be received in due
course.   Weiss at 180.      R.C. 4123.522 provides that such presumption may, upon
application to the commission, be rebutted by evidence which shows that the addressee
did not receive the mailed notice, and that such failure was due to cause beyond the
control of that person.
       {¶ 42} Regarding the Weiss court's analysis of R.C. 4123.522, the commission is not
required to accept the rebuttal evidence submitted by the R.C. 4123.522 applicant who is
endeavoring to show that the presumption is invalid in his or her particular case.
       {¶ 43} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.


                                               /S/ MAGISTRATE
                                               KENNETH W. MACKE
No. 16AP-48                                                                       13

                              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).
