[Cite as State ex rel. Mosley v. Indus. Comm., 2014-Ohio-1710.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio ex rel. Kelly R. Mosley,                 :

                 Relator,                              :

v.                                                     :             No. 13AP-127

The Industrial Commission of Ohio,                     :          (REGULAR CALENDAR)
Stephen Buehrer, Administrator
Bureau of Workers' Compensation,                       :
and American Thermal Instruments,
                                                       :
                 Respondents.
                                                       :




                                         D E C I S I O N

                                      Rendered on April 22, 2014


                 Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, and
                 Brett Bissonnette, for relator.

                 Michael DeWine, Attorney General, and Colleen C. Erdman,
                 for respondents Administrator, Bureau of Workers'
                 Compensation and the Industrial Commission of Ohio.

                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

BROWN, J.
        {¶ 1} Relator, Kelly R. Mosley ("claimant"), has filed this original action
requesting that this court issue a writ of mandamus ordering respondent, Industrial
Commission of Ohio ("commission"), to vacate its December 18, 2012 order that upheld
the dismissal by the Ohio Bureau of Workers' Compensation ("bureau") of claimant's R.C.
No. 13AP-127                                                                                  2


4123.57 application for the determination of the percentage of permanent partial
disability ("PPD") compensation, and to enter a commission order returning the
application to the bureau for the scheduling of a medical examination by the bureau's
medical section and the issuance of a bureau tentative order determining the percentage
of PPD, even though relator is receiving permanent total disability ("PTD") compensation
pursuant to a PTD award entered prior to the filing of his application for percentage of
PPD.
       {¶ 2} This matter was referred to a court-appointed magistrate 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, and recommended
that this court grant claimant's request for a writ of mandamus. Claimant has filed an
objection to the magistrate's decision.
       {¶ 3} In his sole objection, claimant argues that the magistrate erred when he
found that the bureau was not required to determine his percentage of PPD resulting from
the organic personality syndrome because he is receiving PTD benefits for that condition.
Although claimant agrees that he cannot receive PPD benefits while receiving PTD
benefits for the same condition, and PTD benefits are typically paid for the remainder of
the recipient's life, he contends that he is still entitled to a determination of his percentage
of PPD for organic personality syndrome because (1) his surviving spouse or other
dependents would be entitled to receive his PPD award upon his death, and (2) there are
several circumstances under which PTD compensation could terminate prior to his death,
such as a return to work, fraud or medical improvement that qualifies him for work.
Claimant's argument rests largely upon his disagreement with the magistrate's
interpretation of State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78 (1997).
       {¶ 4} The magistrate sufficiently summarized the facts from Burrows. The
magistrate distinguished Burrows on two grounds. The magistrate first found that, unlike
the instant case in which the bureau declined to process claimant's application, in
Burrows, the bureau had already processed the claimant's application at the time of the
Supreme Court of Ohio's adjudication; thus, the Supreme Court in Burrows did not issue
a writ ordering the bureau to process the application. Instead, the Supreme Court in
Burrows issued a writ to compel the commission to further consider the claimant's PPD
No. 13AP-127                                                                              3


application. The magistrate also distinguished Burrows on the ground that Burrows
involved a living maintenance wage loss award that would presumably end during the
claimant's lifetime, but the instant case involved a lifetime award of PTD. Because it is
undisputed that a claimant cannot receive PTD and PPD at the same time, the magistrate
reasoned ordering the commission to process the application for a determination of the
percentage of PPD would be a vain act because he would never be entitled to PPD, given
PTD would end only upon claimant's death.
       {¶ 5} We agree with the magistrate's reasoning. Claimant's contention that he is
still entitled to a determination of a percentage of PPD because his surviving spouse or
other dependents would be entitled to his PPD award upon his death is without merit.
Both parties here agree that claimant cannot receive PTD and PPD simultaneously for the
same condition and claim; thus, claimant himself would never be entitled to PPD.
Claimant cites no authority for the proposition that a spouse or other dependent of a
deceased workers' compensation claim can receive a PPD award to which the claimant
was not entitled in his or her lifetime. A claimant's dependents would be entitled to the
PPD award of the deceased claimant only if the claimant himself or herself were entitled
to such an award during his or her lifetime. As claimant here is indisputably not entitled
to such an award now or likely at any point in his lifetime because he is receiving PTD, his
dependents also have no interest in a hypothetical award.
       {¶ 6} Furthermore, we find without merit claimant's argument contesting the
magistrate's conclusion that determination of the percentage of PPD would be a "vain"
act. As explained above, claimant contends there are several circumstances under which a
claimant's PTD compensation may terminate prior to the claimant's death; thus, a
percentage of PPD determination might not be in vain. However, until one of these
circumstances occurs, if ever, claimant can receive no award for a percentage of PPD.
Therefore, we agree that any determination of the percentage of PPD, at this juncture,
would be a vain act.
       {¶ 7} We also agree with the magistrate that Burrows is clearly distinguishable on
the ground that Burrows involved living maintenance wage loss that would presumably
end during the claimant's lifetime, while the instant case involves a lifetime award of PTD.
The outcome in Burrows is consistent with the two arguments claimant raises above in
No. 13AP-127                                                                                4


support of his objection. Unlike the present case, in Burrows, the claimant's surviving
spouse or dependents would be entitled to the PPD award because the claimant would
have been entitled to the PPD award after the living maintenance wage loss compensation
ended. In addition, the determination of the percentage of PPD in Burrows would not
have been a vain act because living maintenance wage would eventually end, thereby
entitling the claimant to PPD. Therefore, we agree that Burrows is not applicable to the
circumstances in this case. For the foregoing reasons, claimant's objection is overruled.
       {¶ 8} After an examination of the magistrate's decision, an independent review of
the record, pursuant to Civ.R. 53, and due consideration of claimant's objection, we
overrule the objection and adopt the magistrate's findings of fact and conclusions of law.
We issue a writ of mandamus ordering the commission to vacate the December 18, 2012
order of its staff hearing officer that upheld the bureau's dismissal of claimant's
application for the determination of the percentage of PPD and ordering the commission
to enter an order that returns the matter to the bureau for the scheduling of a medical
examination and the issuance of a tentative order in a manner consistent with the
magistrate's decision.
                                                                       Objection overruled;
                                                               writ of mandamus granted.

                         SADLER, P.J., and CONNOR, J, concur.

                               ___________________
No. 13AP-127                                                                            5


                                         APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


State of Ohio ex rel. Kelly R. Mosley,      :

               Relator,                     :

v.                                          :                No. 13AP-127

The Industrial Commission of Ohio,          :          (REGULAR CALENDAR)
Stephen Buehrer, Administrator
Bureau of Workers' Compensation,            :
and American Thermal Instruments,
                                            :
               Respondents.
                                             :




                          MAGISTRATE'S DECISION

                              Rendered on January 17, 2014


               Hochman & Plunkett Co., L.P.A., Gary D. Plunkett and Brett
               Bissonnette, for relator.

               Michael DeWine, Attorney General, and Justine S. Casselle,
               for respondents Administrator, Bureau of Workers'
               Compensation and the Industrial Commission of Ohio.


                                  IN MANDAMUS

       {¶ 9} In this original action, relator, Kelly R. Mosley, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the December 18, 2012 order of its staff hearing officer ("SHO") that upheld the dismissal
No. 13AP-127                                                                           6


by the Ohio Bureau of Workers' Compensation ("bureau") of relator's R.C. 4123.57
application for the determination for the percentage of permanent partial disability
("PPD"), and to enter a commission order returning the application to the bureau for the
scheduling of a medical examination by the bureau's medical section and the issuance of a
bureau tentative order determining the percentage of PPD, even though relator is
receiving permanent total disability ("PTD") compensation pursuant to a PTD award
entered prior to his filing of his application for the percentage of PPD.
Findings of Fact:
       {¶ 10} 1. On September 23, 2002, relator sustained an industrial injury while
employed with respondent American Thermal Instruments, a state-fund employer. The
industrial claim (No. 02-855088) is allowed for multiple physical and psychological
conditions. There are 23 allowed conditions in the claim.
       {¶ 11} 2. Temporary total disability ("TTD") compensation was last paid on
October 1, 2010.
       {¶ 12} 3. On November 13, 2009, relator filed an application for PTD
compensation.
       {¶ 13} 4. Following a November 1, 2010 hearing, an SHO issued an order
awarding PTD compensation starting October 1, 2010. Relying exclusively on a report
from Dr. Mary Carole Curran, the SHO found that relator is unable to perform any
sustained remunerative employment solely as a result of the medical impairment caused
by the allowed psychological condition described as "organic personality syndrome."
Therefore, the SHO found it unnecessary to consider or analyze the non-medical
disability factors.
       {¶ 14} 5. On September 7, 2012, relator filed an application for the
determination of the percentage of PPD.
       {¶ 15} 6. The bureau did not schedule relator for a medical examination by its
medical section and thus the bureau did not issue a tentative order determining the
percentage of PPD.
       {¶ 16} 7. On September 10, 2010, the bureau mailed an order dismissing relator's
application. The order explains:
No. 13AP-127                                                                         7


               On 09/07/2012, the injured worker filed an application for a
               determination or an increase in the percentage of permanent
               partial disability as a result of his/her work-related
               injury/disease. The Ohio Bureau of Workers' Compensation
               (BWC) hereby advises it has dismissed the Application for
               Determination of Percentage of Permanent Partial Disability
               or Increase of Permanent Partial Disability (C-92) without
               prejudice for the reason (s) listed below.

               The Industrial Commission of Ohio by order dated
               10/01/2010 has found the injured worker to be permanently
               and totally disabled.

      {¶ 17} 8. Relator timely objected to the bureau's order.
      {¶ 18} 9. Following a November 1, 2012 hearing, a district hearing officer
("DHO") issued an order that affirms the bureau's order. The DHO's order explains:
               The District Hearing Officer denies the appeal filed by the
               injured worker on 10/01/2012. The District Hearing Officer
               affirms the Administrator's order dated 09/10/2012. It is the
               finding of the District Hearing Officer that the Injured
               Worker's c-92 application for determination of percentage of
               permanent partial disability filed 09/07/2012 is dismissed.

               The District Hearing Officer notes that the injured worker
               was awarded statutory [sic] permanent total disability
               compensation by the Industrial Commission in this claim,
               02-855088 by order issued 10/01/2010. The allowed
               medical conditions listed on the order were:

               The injured worker filed an application for permanent
               partial disability on 09/07/2012. The Administrator issued
               an order on 09/10/2012 dismissing the Injured Worker's
               C92 application stating "The Industrial Commission of Ohio
               by order dated 10/01/2010 has found the injured worker to
               be permanently and totally disabled." The Injured Worker's
               representative acknowledge[d] at the hearing that the
               Injured Worker was not entitled to a permanent partial
               disability award for those conditions for which the Injured
               Worker has been granted permanent total disability
               compensation on 10/01/2010. Additionally, the Injured
               Worker's Representative stated that there are no new
               conditions that were not covered by the 10/01/2010 order.
No. 13AP-127                                                                               8


                 The District Hearing Officer finds that the proper course of
                 action is to dismiss the injured worker's c92 application filed
                 09/07/2012.

                 The District Hearing Officer finds the Injured Worker is
                 currently receiving permanent total disability compensation
                 in this claim. The injured worker is now requesting that he
                 be provided permanent partial disability award under Ohio
                 Revised Code 4123.57 (A) to run after the permanent total
                 disability award in this claim and for that reason that the
                 injured worker is now entitled to the examination and a
                 designation of the award although the payout may be
                 sometime after his death.

          {¶ 19} 10. Relator administratively appealed the DHO's order of November 1,
2012.
          {¶ 20} 11. Following a December 18, 2012 hearing, an SHO issued an order
affirming the DHO's order. The SHO's order explains:
                 It is the finding and order of the Staff Hearing Officer that
                 the Injured Worker's C-92 application, filed 09/07/2012, is
                 dismissed. The Staff Hearing Officer finds that the Injured
                 Worker was awarded statutory [sic] permanent total
                 disability compensation by the Industrial Commission on
                 10/2010, based upon the allowed conditions in this claim.

                 This order is based upon Ohio Revised Code 4123.57 and the
                 facts stated within the order.

          {¶ 21} 12. On February 26, 2013, the three-member commission mailed an order
denying relator's request for reconsideration of the SHO's order of December 18, 2012.
          {¶ 22} 13. On February 19, 2013, relator, Kelly R. Mosley, filed this mandamus
action.
Conclusions of Law:
          {¶ 23} It is the magistrate's decision that this court issue a writ of mandamus, as
more fully explained below.
          {¶ 24} On the date of relator's industrial injury, R.C. 4123.57 provided:
                 Except as provided in this section, not earlier than forty
                 weeks after the date of termination of the latest period of
                 payments under section 4123.56 of the Revised Code, or not
                 earlier than forty weeks after the date of the injury or
No. 13AP-127                                                                       9


               contraction of an occupational disease in the absence of
               payments under section 4123.56 of the Revised Code, the
               employee may file an application with the bureau of workers'
               compensation for the determination of the percentage of the
               employee's permanent partial disability resulting from an
               injury or occupational disease.

               Whenever the application is filed, the bureau * * * shall
               schedule the employee for a medical examination by the
               bureau medical section. The bureau shall send a copy of the
               report of the medical examination to the employee, the
               employer, and their representatives. Thereafter, the
               administrator of workers' compensation shall review the
               employee's claim file and make a tentative order as the
               evidence before the administrator at the time of the making
               of the order warrants. * * *

               * * * Unless the employee, the employer, or their
               representative notifies the administrator, in writing, of an
               objection to the tentative order within twenty days after
               receipt of the notice thereof, the tentative order shall go into
               effect and the employee shall receive the compensation
               provided in the order. * * *

               If the employee, the employer, or their representatives timely
               notify the administrator of an objection to the tentative
               order, the matter shall be referred to a district hearing officer
               who shall set the application for hearing with written notices
               to all interested persons. Upon referral to a district hearing
               officer, the employer may obtain a medical examination of
               the employee, pursuant to rules of the industrial
               commission.

               (A) The district hearing officer, upon the application, shall
               determine the percentage of the employee's permanent
               disability, * * * based upon that condition of the employee
               resulting from the injury or occupational disease and causing
               permanent impairment evidenced by medical or clinical
               findings reasonably demonstrable. The employee shall
               receive sixty-six and two-thirds per cent of the employee's
               average weekly wage, but not more than a maximum of
               thirty-three and one-third per cent of the statewide average
               weekly wage as defined in division (C) of section 4123.62 of
               the Revised Code, per week regardless for the average weekly
               wage, for the number of weeks which equals the percentage
               of two hundred weeks. * * * A staff hearing officer shall hear
No. 13AP-127                                                                           10


               an application for reconsideration filed and the staff hearing
               officer's decision is final. * * *

               ***

               Compensation payable under this division accrues and is
               payable to the employee from the date of last payment of
               compensation, or, in cases where no previous compensation
               has been paid, from the date of the injury or the date of the
               diagnosis of the occupational disease.

               When an award under this division has been made prior to
               the death of an employee, all unpaid installments accrued or
               to accrue under the provisions of the award are payable to
               the surviving spouse, or if there is no surviving spouse, to the
               dependent children of the employee, and if there are no
               children surviving, then to other dependents as the
               administrator determines.

      {¶ 25} Analysis begins with the observation that the commission's PTD award is
premised exclusively upon the report of Dr. Curran. The SHO's order of November 1,
2010 finds that relator is unable to perform any sustained remunerative employment
solely as a result of the medical impairment caused by the allowed psychological condition
described as "organic personality syndrome." While the SHO's order states that the
award is apportioned entirely to industrial claim number 02-855088, there is no
indication that this apportionment in any way detracts from the commission's exclusive
reliance upon one allowed condition—organic personality syndrome—to support the PTD
award. That is to say, the PTD award is not premised upon any of the multitude of
physical claim allowances.
      {¶ 26} It can be further observed that relator's September 7, 2012 application for
the determination of the percentage of PPD appears to list all of the allowed conditions
of the claim both physical and psychological, as the bases for the compensation request.
      {¶ 27} Notwithstanding the above observations, respondent commission here
asserts that "[t]hrough its 2010 order, the commission determined that Mosley is
permanently and totally disabled for the same twenty three conditions for which he now
seeks to be found permanently and partially disabled." (Commission's brief, 8.)
No. 13AP-127                                                                            11


       {¶ 28} The commission's statement, as quoted, is incorrect. The commission
determined that relator is permanently and totally disabled as a result of only one of the
allowed conditions of the claim. The commission did not premise its PTD award on all
of the allowed conditions as the commission incorrectly asserts.
       {¶ 29} Throughout its brief, the commission repeatedly asserts that relator has
been determined to be permanently and totally disabled for the "same" conditions that
underlie his application for a determination of a percentage of PPD. Those factual
assertions are incorrect.
       {¶ 30} Compounding the commission's error here, relator also seems to fail to
recognize that his PTD award is premised solely upon one allowed condition of the
claim, i.e., the psychological condition described as "organic personality syndrome." At
the very least, in his reply brief, relator does not protest the commission's incorrect
factual assertions.
       {¶ 31} In State ex rel. Murray v. Indus. Comm., 63 Ohio St.3d 473 (1992), the
court held that PPD and PTD compensation cannot be concurrently paid for the same
conditions. State ex rel. Hoskins v. Indus. Comm., 87 Ohio St.3d 560 (2000).
       {¶ 32} Here, relator and the commission acknowledged the point of law set forth
in Murray and reaffirmed in Hoskins. However, the parties fail to acknowledge the
corollary to the Murray point of law as set forth in State ex rel. Missik v. Youngstown,
65 Ohio St.3d 189 (1992). Significantly, the Missik decision issued shortly after the
Murray decision.
       {¶ 33} In Missik, the claimant, George Missik, suffered three industrial injuries
while working for the City of Youngstown: (1) claim number PE626746—"Bilateral
sacroiliac injury," (2) claim number PEL4593—"Neck and shoulder," and (3) claim
number PEL3212—"Injured back and left side." Missik at 190.
       {¶ 34} In 1986, Missik filed for PTD compensation, listing only PEL3212 and
PEL4593 on his application. On the commission's behalf, Missik was examined by Dr.
William G. Kraus who opined that Missik is permanently and totally disabled based
upon the allowed conditions in claim numbers PEL4593 and PEL3212.                     The
commission's PTD award specified "that the cost of this award be allocated 100% to
claim number PEL-3212." Id.
No. 13AP-127                                                                          12


       {¶ 35} Eventually, Missik sought PPD compensation in claim number PE626746
and PEL4593. A DHO dismissed both applications based on the PTD award.
Reconsideration was denied in both claims.
       {¶ 36} Issuing a writ, the Missik court explained:
               Pursuant to our decision in State ex rel. Litten v. Indus.
               Comm. (1992), 65 Ohio St.3d 178, 602 N.E.2d 624, we find
               that the commission's permanent total disability finding, by
               attributing the award's costs exclusively to PEL3212, did not
               encompass PEL4593 and PE626746. We thus find that the
               commission abused its discretion in dismissing claimant's
               permanent partial disability application in PEL4593.
               However, because PEL3212 and PE626746 both involve back
               injuries, the commission did not err in dismissing claimant's
               permanent partial disability application in the latter claim.
               State ex rel. Consolidation Coal Co. v. Indus. Comm. (1980),
               62 Ohio St.2d 147, 16 O.O.3d 166, 404 N.E.2d 141.

Id. at 191.

       {¶ 37} In the magistrate's view, based upon the undisputed facts of record, the
Missik decision compels the issuance of a writ of mandamus in this action.
       {¶ 38} The magistrate acknowledges that, unlike Missik, this action does not
involve multiple industrial claims, but only the one industrial claim. Here, the PTD
award is premised upon only 1 of the 23 allowed conditions of the claim. Therefore, by
his application for the determination of the percentage of PPD in his sole industrial
claim, relator was not seeking PPD compensation for the same conditions (or condition)
that support his PTD award. Both the bureau and the commission failed to recognize
this distinction in their orders, and, as a result, relator was denied a statutory right
under R.C. 4123.57.
       {¶ 39} Clearly, under R.C. 4123.57, upon the filing of the application, the bureau
was required to schedule relator for a medical examination by the bureau's medical
section at least for the allowed physical conditions of the claim. Following the issuance
of the medical report, the bureau was required to make a tentative order.
       {¶ 40} Because the bureau failed to schedule relator for a medical examination
and to issue a tentative order, and the commission's hearing officers failed to order the
bureau to do so, a writ of mandamus must issue
No. 13AP-127                                                                           13


         {¶ 41} The magistrate notes again that relator did not seek relief in this action
pursuant to Missik. Rather, relator "concedes that he is not eligible to have the [PPD]
award paid out until the cessation of his permanent and total disability compensation
benefits." (Relator's brief, 12.)
         {¶ 42} Apparently, relator seeks a writ that would order the bureau to determine
the percentage of PPD as to all 23 of the allowed conditions of the industrial claim
following a bureau medical examination. Citing State ex rel. Burrows v. Indus. Comm.,
78 Ohio St.3d 78 (1997), relator argues that he has the right to a bureau determination
of his percentage of PPD presumably as to all allowed conditions of his claim even
though, concededly, the PPD award could not be lawfully paid while he receives PTD
compensation.       That is, relator argues that Burrows compels the bureau and
commission to enter a PPD award that cannot be paid until cessation of his PTD award.
The magistrate notes that R.C. 4123.58(A) provides that "the employee shall receive an
award to continue until the employee's death." Thus, a PTD award is ordinarily a
lifetime award. State ex rel. Smothers v. Mihm, 69 Ohio St.3d 566 (1994). In effect,
relator seeks a PPD award that he would, in all likelihood, never receive payment for.
Relator further contends that, upon his death, his PPD award would be paid to "his
heirs," (Relator's brief, 17.) pursuant to the provision of R.C. 4123.57 stating that "all
unpaid installments accrued or to accrue under the provisions of the award are payable
to the surviving spouse, or if there is no surviving spouse, to the dependent children of
the employee, and if there are no children surviving, then to other dependents as the
administrator determines."
         {¶ 43} Relator's reliance upon Burrows is misplaced. A review of that case is in
order.
         {¶ 44} Ruth Burrows injured her back, shoulder, and hip in October 1987 while
working at Akron City Hospital.       After allowance of her industrial claim, Burrows
received TTD compensation pursuant to R.C. 4123.56(A) until November 4, 1990, when
she entered a rehabilitation program. While participating in the rehabilitation program,
Burrows received living maintenance benefits under R.C. 4121.63. She returned to work
on January 14, 1991 and, due to her physical limitations, assumed a position that did not
No. 13AP-127                                                                          14


pay as well as her former job. As a result, Burrows qualified for living maintenance
wage loss compensation under R.C. 4121.67(B).
      {¶ 45} On May 12, 1992, Burrows applied for a determination of her percentage of
PPD. The bureau initially awarded PPD compensation in a tentative order. Upon the
hospital's objection, a DHO determined Burrows' percentage of PPD to be at 18 percent.
The hospital requested reconsideration, arguing that: (1) R.C. 4123.57(A) claimants
could not apply for PPD under the statute until 40 weeks after their last payment for
living maintenance wage loss compensation, and (2) Burrows had filed her application
while still receiving this compensation. An SHO agreed with the hospital and dismissed
Burrows' application as untimely on the authority of R.C. 4123.63, 4121.67(B), and
4123.57.
      {¶ 46} Burrows then filed in this court a complaint for a writ of mandamus.
Citing the plain language of R.C. 4123.57, this court granted the writ and returned the
cause to the commission for an appropriate determination of Burrows' PPD eligibility.
An appeal as of right was taken to the Supreme Court of Ohio.
      {¶ 47} In Burrows, the Supreme Court held that Burrows' application for a
determination of her percentage of PPD was not barred by the R.C. 4123.57 waiting
period. The R.C. 4123.57 waiting period is to be measured from the last date of receipt
of R.C. 4123.56 compensation.      For purposes of the waiting period, neither R.C.
4121.67(B) nor 4123.63 is considered to be R.C. 4123.56 compensation.
      {¶ 48} However, the Burrows court also held that percentage of PPD awards
under R.C. 4123.57(A) cannot be paid to claimants receiving either living maintenance
or living maintenance wage loss compensation.
      {¶ 49} As earlier noted, at the time of the filing of her application for the
determination of her percentage of PPD, Burrows was receiving living maintenance
wage loss compensation. In the last paragraph of its decision, the Burrows court states:
               Having found that R.C. 4123.57(A) imposes the forty-week
               waiting period for TTD paid specifically pursuant to R.C.
               4123.56, notwithstanding that claimants cannot be paid
               living maintenance wage loss compensation and R.C.
               4123.57(A) PPD at the same time, we affirm the judgment of
               the court of appeals that grants a writ of mandamus to
No. 13AP-127                                                                           15


               compel the commission's further consideration of Burrows's
               PPD application.

Id. at 82.

       {¶ 50} Here, relator contends that, in Burrows "the Supreme Court found that the
issue of whether a permanent partial disability award was payable must be separated into
two steps. First, the initial threshold of whether the Application must be determined must
be addressed. If so, then the second issue, whether benefits are payable to the claimant,
can be addressed." (Relator's brief, 10.)
       {¶ 51} Relator fails to explain how he arrived at his "two steps" theory from a
reading of Burrows. (See relator's brief, 10.) However, the magistrate notes that, unlike
the instant case, in Burrows, the bureau processed Burrows' application. In fact, the
bureau awarded PPD compensation in a tentative order that presumably followed a
bureau medical examination. In Burrows, unlike the instant case, the application was
not dismissed until reconsideration by the SHO. Clearly, the Burrows court did not
issue a writ ordering the bureau to process the application. In Burrows, the application
had already been processed at the time of the court adjudication.
       {¶ 52} However, this court did issue a writ that "returned the cause to the
commission for an appropriate determination of Burrows' PPD eligibility." Id. at 79.
This court's judgment was affirmed and the Burrows court did issue a writ "to compel
the commission's further consideration of Burrows' PPD application." Id. at 82.
       {¶ 53} Unlike the instant case involving the bar of a lifetime PTD award, Burrows
involved living maintenance wage loss compensation under R.C. 4121.67(B). Although
Burrows was receiving living maintenance wage loss compensation at the time she filed
her application for the determination of her percentage of PPD, presumably, payment of
living maintenance wage loss compensation will end during Burrows' lifetime. It may
very well have ended by the time of the issuance of the writ by the Burrows court. In
any event, the issuance of a writ requiring the commission to determine Burrows'
"eligibility" makes perfect sense.
       {¶ 54} Notwithstanding the above analysis, Burrows does not here mandate a
writ returning the matter to the commission or bureau for an adjudication of the
No. 13AP-127                                                                            16


application based upon all allowed conditions of the claim. For as long as relator is
receiving his lifetime PTD award, granting relator's specific request here would indeed
compel the bureau and commission to perform a vain act.
      {¶ 55} In short, relator's reliance upon Burrows to support his request for a writ
of mandamus is misplaced.
      {¶ 56} Accordingly, for all the above reasons, it is the magistrate's decision that
this court issue a writ of mandamus ordering the commission to vacate the
December 18, 2012 order of its SHO that upheld the bureau's dismissal of relator's
application for the determination of the percentage of PPD, and to enter an order that
returns the matter to the bureau for the scheduling of a medical examination and the
issuance of a tentative order in a manner consistent with this magistrate's decision.




                                          /S/ MAGISTRATE
                                          KENNETH W. MACKE


                              NOTICE TO THE PARTIES
               Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
               as error on appeal the court's adoption of any factual finding
               or legal conclusion, whether or not specifically designated as
               a finding of fact or conclusion of law under Civ.R.
               53(D)(3)(a)(ii), unless the party timely and specifically
               objects to that factual finding or legal conclusion as required
               by Civ.R. 53(D)(3)(b).
