[Cite as State ex rel. Dunlap v. Indus. Comm., 2016-Ohio-8131.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel. Myong Dunlap,                    :

                 Relator,                              :

v.                                                     :             No. 16AP-101

Industrial Commission of Ohio                          :          (REGULAR CALENDAR)
and Ryan Michael, Inc.,
                                                       :
                 Respondents.
                                                       :




                                         D E C I S I O N

                                   Rendered on December 13, 2016


                 On brief: The Bainbridge Firm, LLC, and Carol L.
                 Herdman, for relator.

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

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.
        {¶ 1} Relator, Myong Dunlap, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to do the following: (1) vacate its order wherein the commission
exercised its continuing jurisdiction over the motion filed by the Ohio Bureau of Workers'
Compensation ("BWC") finding that she had been overpaid temporary total disability
("TTD") compensation and that the BWC was entitled to recoup that overpayment,
pursuant to the fraud provisions of R.C. 4123.511(K), (2) vacate its subsequent order
denying her request that the commission exercise its continuing jurisdiction to correct a
No. 16AP-101                                                                              2

mistake of law, and (3) find there was no overpayment and/or that relator was not guilty
of fraud.
       {¶ 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 grant relator's request for a writ of mandamus. The
commission and relator have filed objections.
       {¶ 3} In its sole objection, the commission argues the magistrate erred when she
found the commission abused its discretion in declaring that only the TTD compensation
for the closed period of March 1, 2011 through January 30, 2013 be recouped under the
fraud provisions of R.C. 4123.511(K). The commission contends the magistrate has
negated the commission's position as the trier of fact and has recommended the issuance
of a writ of mandamus solely on her own conclusion that the version of the C-84 form
relator signed between March 1, 2011 and January 30, 2013 did not inform relator that
her unpaid activities were improper. The commission claims that the issue is not whether
the form contained certain wording, but whether relator knowingly concealed her activity
in order to receive benefits to which she was not entitled, consistent with the elements for
civil fraud. The commission asserts that it relied on multiple C-84 forms in which relator
attested she had not worked since 2008, videos showing relator walking through the store
and climbing a ladder, relator's intentional downplaying of her activities and involvement
at the store, and concealing the activities she was performing at King J.'s from the
commission and her treating physician, which evinces her knowledge that her activities
were prohibited while receiving TTD compensation.
       {¶ 4} However, the magistrate's determination addresses the issue the
commission claims is pertinent here: whether relator knowingly concealed her activities
in order to receive benefits to which she was not entitled. In its order, the commission
relied on the fact that the newer C-84 applications were modified to include that unpaid
activities that directly earned income for someone else were considered "work" in order to
find relator had knowledge of the falsity of her representations that she was not working.
Given the commission's rationale, the magistrate found that the commission should have
concluded that relator was overpaid only from the time she signed the modified C-84
No. 16AP-101                                                                              3

application that included the broader definition of "work." The magistrate's reasoning
addresses the issue of whether relator knowingly concealed her work activity, which
directly relates to a required element of fraud. The magistrate found it could not be
presumed that relator knowingly concealed her work activity until she signed the
modified C-84 application with the expanded definition of "work" on January 31, 2013.
The Supreme Court of Ohio has noted that, although "work" in this context is generally
considered to be labor exchanged for pay, the exception that unpaid activities that directly
generate income for a separate entity can be considered "work" "is not intuitive, nor is it
within the realm of the average claimant's experience." State ex rel. McBee v. Indus.
Comm., 132 Ohio St.3d 209, 2012-Ohio-2678, ¶ 10. Thus, we find the magistrate did not
err when she found the version of the C-84 form relator signed between March 1, 2011
and January 30, 2013 did not inform relator that her unpaid activities were improper, so
relator could not have knowingly concealed her work activities until she signed the
modified C-84 form with the expanded definition of "work" on January 31, 2013. The
commission's argument is without merit, and we overrule its objection.
       {¶ 5} In her sole objection, relator argues the magistrate erred when she found
that relator knowingly committed fraud from January 31 to August 6, 2013 because there
was insufficient evidence to support the finding that relator knew her actions constituted
"work" inconsistent with the receipt of TTD compensation. Relator argues that, per the C-
84 application, unpaid activity constitutes "work" only if it is "not minimal," and that
phrase has not been defined by the BWC, commission, or any court. Relator contends that
no discussion or analysis of whether her activities were more than minimal was
undertaken by the commission. Thus, she claims there was not some evidence to support
the commission's finding that she engaged in fraud for any portion of time questioned by
the BWC.
       {¶ 6} Although the commission did not make an explicit finding with regard to
the "not minimal" requirement on the C-84 form, the finding is implicit, and we find there
was some evidence to demonstrate that relator's work was not minimal. Although there is
no explicit definition of "minimal," several cases have determined whether the activities in
question were "minimal." In State ex rel. Ford Motor Co. v. Indus. Comm., 98 Ohio St.3d
20, 2002-Ohio-7038, the court found the claimant's activities were minimal when he
No. 16AP-101                                                                               4

hired workers to do the lawn care in his lawn care business, while his participation was
limited to signing paychecks, fueling lawnmowers weekly, and driving the mowers onto a
truck.
         {¶ 7} In State ex rel. Perez v. Indus. Comm., ___Ohio St.3d ___, 2016-Ohio-
5084, the court found the claimant's work at his auto repair business was not minimal
when he was ordering and picking up automobile parts, scheduling appointments, looking
under the hood of vehicles, answering the telephone, receiving payments from customers,
and talking with customers—activities that were more than passive.
         {¶ 8} In State ex rel. Meade v. Indus. Comm., 10th Dist. No. 04AP-1184, 2005-
Ohio-6206, this court found that activities were not minimal when the claimant took an
active and physically demanding role in a pizza business, conducting repairs, delivering
pizzas, serving customers, and conducting various other work-related activities.
         {¶ 9} In State ex rel. Cassano v. Indus. Comm., 10th Dist. No. 03AP-1227, 2005-
Ohio-68, we found the activities were not minimal when the claimant continued to
operate his car dealership, doing such tasks as performing mechanical work on cars and
attending auto auctions.
         {¶ 10} In State ex rel. Honda of Am. Mfg. Co. v. Indus. Comm., 113 Ohio St.3d 5,
2007-Ohio-969, the claimant owned a scrapbook store and was observed answering a
customer's questions, pointing out displays, and speaking on the telephone as well as once
using the cash register. The court found the claimant's mere presence at the store did not
itself disqualify her from receiving TTD compensation, and that even if she had engaged
in some business activities, those activities were geared toward promoting goodwill and
generated income only secondarily.
         {¶ 11} In the present case, there was some evidence to demonstrate that relator's
activities were not minimal. Here, relator worked at the beauty supply store three to four
days per week, worked from the opening of the store until closing, operated the cash
register while standing behind the front counter, greeted customers, walked with
customers throughout the store, assisted customers with locating items, moved and
climbed a step ladder to reach an item, provided details about products to customers,
bagged purchased items, and trained a new employee. An employee for the business also
told investigators that relator had told her that she had been working full-time at the store
No. 16AP-101                                                                           5

for two to three years but was cutting her hours because of back pain. These activities
were not minimal. They were physically demanding and more than passive, as in Perez
and Meade above. Relator's actions were also greater than being a "mere presence," as the
court in Honda found to be minimal, given the physical and broad nature of her tasks.
Relator's actions were that expected of a typical employee. For these reasons, the
magistrate did not err when she found that relator knowingly committed fraud from
January 31 to August 6, 2013. Relator's objection is overruled.
       {¶ 12} Accordingly, after an examination of the magistrate's decision, an
independent review of the record, pursuant to Civ.R. 53, and due consideration of the
commission's and relator's objections, we overrule their objections and adopt the
magistrate's findings of fact and conclusions of law. Relator's request for a writ of
mandamus is granted to the extent set forth in the magistrate's decision.
                                       Objections overruled; writ of mandamus granted.

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

                                __________________
[Cite as State ex rel. Dunlap v. Indus. Comm., 2016-Ohio-8131.]

                                             APPENDIX A
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Myong Dunlap,                        :

                 Relator,                              :

v.                                                     :              No. 16AP-101

Industrial Commission of Ohio                          :           (REGULAR CALENDAR)
and
Ryan Michael, Inc.,                                    :

                 Respondents.                          :



                              MAGISTRATE'S DECISION

                                     Rendered on August 22, 2016


                 The Bainbridge Firm, LLC, and Carol L. Herdman, for
                 relator.

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


                                            IN MANDAMUS

        {¶ 13} Relator, Myong Dunlap, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order wherein the commission exercised its continuing
jurisdiction over the motion filed by the Ohio Bureau of Workers' Compensation ("BWC")
finding that she had been overpaid temporary total disability ("TTD") compensation, that
the BWC was entitled to recoup that overpayment pursuant to the fraud provisions of R.C.
4123.511(K), and the commission's subsequent order denying her request that the
No. 16AP-101                                                                            7

commission exercise its continuing jurisdiction to correct a mistake of law, and order the
commission to find there was no overpayment and/or that she was not guilty of fraud.
Findings of Fact:
       {¶ 14} 1. Relator sustained a work-related injury on October 15, 2008 and her
workers' compensation claim has been allowed for the following conditions:
               Sprain left hip and thigh; sprain left ankle; lumbosacral
               sprain/strain; left ankle subtalar joint synovitis with edema;
               L4-L5 protruding disc; L4-L5 tear; substantial aggravation of
               pre-existing depressive disorder; sacroiliitis.

       {¶ 15} 2. Relator received a period of TTD compensation based on her allowed
physical conditions.    That period of TTD compensation was terminated when the
commission determined that her allowed physical conditions had reached maximum
medical improvement ("MMI").
       {¶ 16} 3. On October 4, 2011, relator filed a C-86 motion requesting the payment
of TTD compensation based on her allowed psychological condition. Her motion was
supported by medical documentation from Scott L. Donaldson, Ph.D., who opined that
her allowed psychological condition prevented her from returning to her former position
of employment. Payments were awarded beginning November 10, 2010.
       {¶ 17} 4. Following the granting of TTD compensation, a letter was mailed to
relator explaining that her physician of record must continue to provide complete
documentation of disabling condition and further provided as follows:
               You are not entitled to temporary total benefits if you meet
               any of the conditions below.

               [One] You return to any type of work for any employer.

       {¶ 18} 5. Although her allowed physical conditions had reached MMI, relator
continued treating with Charles May, D.O., who noted that she continued to complain of
lumbar pain with radiation down the left hip and lower extremity to her toes.
       {¶ 19} 6. Concerning her allowed psychological condition, there are several
independent medical examinations in the record, including the following:
       {¶ 20} (a.) Ken H. Tecklenburg, Ph.D., performed an independent medical
examination to determine whether relator's claim should be allowed for a psychological
No. 16AP-101                                                                              8

condition. In his March 28, 2011 report, after discussing the medical evidence which he
reviewed, including evidence pertinent to relator's allowed physical conditions and the
psychological evaluation of relator's physician of record (Dr. Donaldson), Dr. Tecklenburg
noted that relator self-related that her typical day involves staying at home, she avoids
driving because of pain, does not frequent restaurants, is no longer active in church, and
she avoids people because they are too nosey.
       {¶ 21} (b.) Paul A. Deardorff, Ph.D., examined relator to determine the percentage
of permanent partial impairment due to her allowed psychological condition. In his
November 2, 2011 report, Dr. Deardorff discussed the medical evidence, noted that relator
self reported that she does not leave home often, has no hobbies, noted that she is
continually depressed, and finds little enjoyment in previously enjoyed activities.
       {¶ 22} (c.) Richard L. Barnett, Ph.D., examined relator and rendered an opinion
regarding her percentage of permanent partial disability. In his December 5, 2011 report,
Dr. Barnett noted that relator self-reported that she does very little cooking because she
cannot stand for very long, no longer enjoys many of the activities she formally enjoyed,
does not like being around crowds and avoids standing in line, rarely goes anywhere but
will occasionally go to church, becomes frustrated easily, and reacts in anger or by
withdrawing.
       {¶ 23} (d.) Mark E. Reynolds, M.D., evaluated relator regarding the limitations of
her psychological condition. In his March 6, 2012 report, Dr. Reynolds discussed the
medical records which he reviewed and opined that relator had not reached MMI. He
noted that relator was consistently described by most evaluators, including himself, as
evidencing severe symptomology, and that the recommended treatment with
antidepressant medications should proceed. He opined that based on the severity of her
psychiatric symptomology, she would be unable to return to her former position of
employment despite any reasonable restriction or modification, and would likewise be
unable to return to any other form of employment.
       {¶ 24} (e.) Rakesh Ranjan, M.D., conducted an independent medical evaluation
concerning relator's limitations due to her allowed psychological condition.          In his
October 22, 2012 report, Dr. Ranjan noted that relator self-reported that she does not
cook or clean and does not pursue any hobbies, nor does she socialize or drive. He further
No. 16AP-101                                                                           9

opined that her allowed psychological condition had not reached MMI and that, in light of
severe and debilitating psychological symptoms, she was unable to return to any gainful
employment.
       {¶ 25} 7. On July 12, 2013, the BWC filed a motion seeking to terminate relator's
TTD compensation.
       {¶ 26} 8. The matter was heard before a district hearing officer ("DHO") on
August 7, 2013. The BWC's motion was granted based on the June 14, 2013 report of Dr.
Tosi who opined that her allowed psychological condition had reached MMI and did not
prohibit her from returning to her former position of employment. The DHO terminated
relator's TTD compensation as of August 7, 2013, the date of the hearing.
       {¶ 27} 9. The BWC's Special Investigations Unit ("SIU") received information
from an anonymous source that relator was working at King J, a beauty supply store, and
that she worked Tuesdays, Thursdays, Saturday, and some Fridays. The SIU conducted
surveillance. The investigative notes provide, in pertinent part, as follows:
               8/6/13 * * * - Commencing at 2:15 p.m., Plush and Fraud
               Analyst Lajuana Brooks (Brooks) entered the King J store
               located on Lockbourne Avenue and conducted an undercover
               operation. Upon entering the store, agents observed
               DUNLAP standing behind the front counter, working at the
               cash register. DUNLAP greeted the agents and introduced
               herself as "Mia." DUNLAP walked the agents throughout the
               store, assisting them with locating several items. At one
               point, DUNLAP moved and climbed a step ladder in order to
               reach a hairpiece. In the course of conversation, DUNLAP
               provided background and details about the products, and
               informed agents she worked three days per week - Tuesday,
               Thursday, and Saturday open to close. Brooks purchased a
               hairpiece and DUNLAP completed the transaction at the
               cash register, bagging the item and returning change to
               Brooks. Brooks asked DUNLAP to write down information
               pertaining to a hairpiece she was looking for that, according
               to DUNLAP, the store did not have in stock. Another Asian
               employee wrote the information down and then DUNLAP
               took that piece of paper and added her name, "Mia," along
               with the business name and phone number. The agents
               exited the store at approximately 2:33 p.m. with DUNLAP
               still inside.

               *It should be noted DUNLAP remained standing during the
               duration the agents were in the store.
No. 16AP-101                                                                            10


               ***

               10/10/13 * * * - Commencing at 4:03 p.m. Koehl and Dearth
               entered the King J store located on Lockbourne Avenue and
               conducted an undercover operation. An Asian male at the
               front of the store confirms DUNLAP was working. DUNLAP
               exited from a room at the back of the store and assisted the
               agents. Dearth indicated she was looking to purchase a wig.
               DUNLAP assisted Dearth in locating and trying on several
               hairpieces; explaining each one and the difference between
               natural and synthetic hairs, how to care for each type, etc.
               DUNLAP informed agents she typically worked three days a
               week running the cash register and taking care of the money,
               and that currently she was training a new employee.
               DUNLAP told the agents she "does hair" but was not
               currently working as a stylist because she didn't have a salon.
               DUNLAP stated she does however keep her license current.
               DUNLAP confirmed she would put a hold on a hairpiece
               Dearth was interested in, and gave Dearth a business card.
               The agents departed the store at 4:40 p.m. with DUNLAP
               still inside.

               *It should be noted DUNLAP remained standing during the
               duration the agents were in the store.

(Emphasis sic.)

      {¶ 28} SIU agents interviewed James Lee, the owner of King J. Lee informed the
agents that relator was not an employee, that she and his wife were best friends, and that
relator came to the store because she was bored. When informed that the agents had
witnessed relator helping customers and running the cash register, Lee responded that
relator did operate the cash register and assist customers, and had been doing so for the
past one to two years. However, Lee indicated that he did not pay relator.
      {¶ 29} SIU agents contacted Lee's accountant who indicated that he had no payroll
records for relator, but that it was possible payments had been made to her in cash, yet he
had no record of those payments.
      {¶ 30} SIU agents interviewed two employees of King J who both indicated that
relator had worked there while they worked there, that she ran the cash register and
assisted customers, but neither of them knew whether or not she was paid. Mariata Sylla
indicated further that relator had told her that she had been working full time at King J
No. 16AP-101                                                                           11

for two to three years, but was cutting her hours back because of back pain. Ashley
McCormic indicated that, during the short time she worked there, relator was present
almost, if not every day, that McCormic worked. Further, McCormic indicated that she
left her job with King J because they paid her off the books and, to the extent they paid
her with a check, they never took out any deductions.
       {¶ 31} SIU investigators interviewed relator's physician of record, Dr. Donaldson,
and provided him with surveillance video and employee statements. Dr. Donaldson
indicated that relator did not tell him she was working at King J and that he would not
have certified TTD compensation had he known she was working.
       {¶ 32} 10. On October 27, 2014, the BWC filed its motion requesting that the
commission find that relator had been overpaid TTD compensation from March 1, 2011
through August 7, 2013, and further asking for a finding of fraud.
       {¶ 33} 11. The BWC's motion was heard before a DHO on November 24, 2014.
The DHO concluded that relator had been overpaid TTD compensation because she was
engaged in activities that were inconsistent with the claimed psychological inability to
return to any form of employment. The DHO relied on the video surveillance which
contrasted sharply with the C-84s and Medco-14s completed by Dr. Donaldson who
indicated that she was unable to perform any work due to the allowed psychological
condition and Dr. Donaldson's statement, after he viewed the surveillance video, that he
would not have certified the period of TTD compensation had he known she was working.
       {¶ 34} Thereafter, the DHO considered whether or not a finding of fraud was
appropriate and concluded that it was not, stating:
               The SID conducted surveillance at King J on 08/06/2013,
               and undercover video that was obtained showed the Injured
               Worker working behind the front counter as a cashier. The
               Injured Worker also walked the SID agents through the
               store, helping them locate various items. This included
               standing on a stepladder for several minutes to retrieve a
               hairpiece, and bending over to look at products. The video
               depicts the Injured Worker effortlessly performing her
               physical activities without hesitation, and interacting with
               the agents in a professional and courteous manner. The
               Injured Worker provided details about different products,
               and told the agents that she worked three days a week, 10:00
               A.M. to 8:00 P.M. She completed a cash register transaction
No. 16AP-101                                                                      12

               for the purchase of a hairpiece, and provided the agents with
               a slip of paper with her name and business number.

               ***

               The Bureau of Workers' Compensation's request for a finding
               of fraud is denied. The prime facie elements of fraud are, (1)
               a representation, or where there is a duty to disclose,
               concealment of fact; (2) which is material to the transaction
               at hand; (3) made falsely, with the knowledge of its falsity, or
               with such disregard and recklessness as to whether it is true
               or false that knowledge may be inferred; (4) with the intent
               of misleading another into relying upon it; (5) justifiable
               reliance upon the representation or concealment; and (6) a
               resulting injury proximately caused by the reliance. The
               District Hearing Officer finds that the Bureau of Workers'
               Compensation has not established all elements to a
               preponderance of the evidence.

               The absence of remuneration factors into the issue of fraud.
               There is insufficient evidence in file that the Injured Worker
               was paid for her activities. The owner of the store, James
               Lee, told investigators that he did not pay the Injured
               Worker. He stated that his wife and the Injured Worker were
               best friends and that his wife would occasionally buy the
               Injured Worker dinner. Investigators also contacted Mr.
               Lee's business accountant, Sam Lee, CPA. Sam Lee indicated
               that the Injured Worker's name was not listed anywhere in
               the payroll records, or in any other documentation as having
               been paid by the business * * *. The SID also obtained the
               Injured Worker's bank account records from Fifth-Third
               bank from 10/03/2008 to 03/27/2013 * * *. There were no
               checks from King J that were deposited or cashed and no
               record of recurring cash deposits from 03/01/2011 through
               08/06/2013.

               The documents that the Injured Worker used to apply for
               ongoing temporary total disability compensation advised
               that she was not permitted to work while receiving
               temporary total disability compensation. However, the
               documents did not define "work" and did not indicate that
               even unpaid activities may sometimes be considered work.
               Based on the lack of proof of wages, and an insufficient
               showing that the Injured Worker recognized that her unpaid
               activities may have constituted work, the District Hearing
               Officer finds that a fraud declaration cannot stand.
No. 16AP-101                                                                      13

       {¶ 35} 12. Both relator and the BWC appealed and the matter was heard before a
staff hearing officer ("SHO") on February 10, 2015. The SHO affirmed the prior DHO
order in all respects, including denying the BWC's request for a finding of fraud.
Specifically, the SHO stated:
               The Administrator obtained statements from the Injured
               Worker, from Mr. Lee, the owner of the store, bank records
               of the Injured Worker, and the statement of the Employer's
               accountant. There are no records of payments to the Injured
               Worker from Mr. Lee. There are records of payment to the
               other co-workers, typical of wages being paid by check. The
               Administrator sought evidence of payment, and did not find
               this evidence after aggressively investigating. This evidence
               supports the conclusion that the Injured Worker's
               statements, and the statements of Mr. Lee, that the Injured
               Worker was not paid are credible. While it is apparently true
               that Mr. Lee would occasionally take the Injured Worker to
               dinner, there is insufficient evidence to find that the Injured
               Worker received remuneration for her activities as a store
               clerk at King J.

               The Administrator points to case law which would support
               the conclusion that, in a proper case, activities may be
               inconsistent with an award of temporary total disability even
               in the absence of remuneration, and that in a clear case a
               fraud finding may stand. In particular, the Administrator
               points to language on some of the C-84s signed by the
               Injured Worker which specifically advise that in a case in
               which activities generate income for a third person, they may
               constitute work. A finding of fraud requires a finding of a
               representation or concealment which is made falsely. While
               the Injured Worker plainly did exaggerate the extent of her
               disability, and down play[ed] the extent of her activities, a
               full finding of fraud requires a full finding of false
               representation, and there is insufficient evidence to conclude
               the Injured Worker was subjectively cognizant of an
               obligation to inform either her psychologist or the
               Administrator of unpaid activities.

       {¶ 36} 13. On March 13, 2015, both relator and the BWC filed appeals from the
SHO's order.
       {¶ 37} 14. The matter was heard before the commission on April 28, 2015. The
commission denied relator's appeal, but granted the BWC's appeal. The commission
agreed with the findings and analysis of the DHO and the SHO regarding the conclusion
No. 16AP-101                                                                         14

that relator was indeed engaged in work activity which was inconsistent with her alleged
inability to work due to the psychological condition. Additionally, the commission found
that the work activity relator performed was not minimal and that it directly generated
income for another entity.
      {¶ 38} Thereafter, the commission addressed the issue of fraud and determined
that the BWC had presented sufficient evidence of fraud, and ordered that the
overpayment be recouped pursuant to the fraud provisions of R.C. 4123.511(K). The
commission acknowledged that the earliest C-84s specifically asked relator if she was
working to which she had responded no. However, the commission noted that the C-84
application was later modified by the BWC and specifically asked relator if she was
working in unpaid activities that were not minimal and that directly earned income for
someone else. The commission noted that relator responded that she was not.
Specifically, the commission stated:
               The Commission finds the Injured Worker had a duty to
               disclose she was working while receiving temporary total
               disability compensation. The original C-84 applications
               specifically asked the Injured Worker if she was working, to
               which she answered "no." The C-84 application was later
               modified by BWC, and the application signed by the Injured
               Worker on 01/31/2013, asked if the Injured Worker was
               working in unpaid activities that were not minimal and
               directly earned income for someone else. The Injured
               Worker again answered "no." The Commission has found the
               persuasive evidence documents the Injured Worker was
               engaged in unpaid activities directly earning income for
               someone else. The Injured Worker ran a cash register and
               made sales generating income for King J. The Injured
               Worker concealed this information from the Administrator.
               The Commission further finds the Injured Worker had a duty
               to disclose to treating and examining physicians the true
               extent of her mental and physical functional capabilities as
               she clearly would have been aware of the activities she was
               performing.

               The concealment was material to the matter at hand because
               it enabled the Injured Worker to continue to receive
               temporary total disability compensation to which she was
               not otherwise entitled.
No. 16AP-101                                                                     15

               The Injured Worker is further found to have had knowledge
               of the falsity of the representations made to BWC. The
               original C-84 applications specifically asked the Injured
               Worker if she had worked in any capacity during the period
               of disability. The C-84 form did not ask if the Injured Worker
               was engaged in unpaid employment. The modified C-84
               form, signed on 01/31/2013, specifically asked the Injured
               Worker if she was engaged in unpaid activities, yet the
               Injured Worker continued to deny such activities. The
               Commission finds the C-84 form is clear and unambiguous
               that the Injured Worker was not entitled to receive
               temporary total disability compensation if she was engaged
               in the activities she was performing, but she continued to
               knowingly deny she was working. Further, the Injured
               Worker knew she was misrepresenting to her physicians her
               functional capabilities as she clearly would have been aware
               of the activities she was performing.

               The Injured Worker concealed her activities and the
               misrepresentations of her abilities were done with the intent
               of misleading her physicians into certifying temporary total
               disability and with the intent the Bureau of Workers'
               Compensation would rely upon the certifications of disability
               to pay temporary total disability compensation.

               The treating physician and the Bureau of Compensation
               justifiably relied on the misrepresentation and continued to
               certify and pay temporary total disability compensation.

               The State Insurance Fund, as well as all injured workers and
               employers who rely upon the State Insurance Fund, suffered
               an injury by the issuance of benefits to which the Injured
               Worker was not entitled.

               The Commission finds the six elements of fraud are found to
               have been met, and the overpayment is to be recouped
               pursuant to the fraud provisions of R.C. 4123.511(K).

               The Commission notes the Injured Worker did not attend
               the 02/10/2015 hearing, and thus no contrary or clarifying
               evidence was offered at hearing. All evidence has been
               reviewed and considered.

      {¶ 39} The commission's order was typed May 18, 2015, but was not mailed until
June 23, 2015.
No. 16AP-101                                                                             16

       {¶ 40} 15. On August 21, 2015, relator filed a motion asking the commission to
invoke its continuing jurisdiction to correct a clear mistake of law which resulted from the
commission's non-compliance with time requirements for the hearing of an appeal and
the subsequent order as found in R.C. 4123.511(D) and (E), stating:
               Now comes the Injured Worker, by and through her
               attorney, hereby requesting that the Industrial Commission
               invoke it[s] continuing jurisdiction to correct a clear mistake
               of law, resulting from its noncompliance with ORC
               section 4123.511(E); wherein the legislature mandated that
               an appeal filed in response to a Staff Hearing Officer Order
               under subsection (D) must be heard within forty five days
               after the filing of the notice of appeal with the ensuing order
               published within seven days following the hearing. Neither
               statutorily prescribed mandate had been met. Therefore, the
               Injured Worker would respectfully request that the order
               published on June 23, 2015 be vacated and the underlying
               order published following the hearing held on
               February 10, 2015 be reinstated.

       {¶ 41} 16. The matter was heard before a DHO on October 15, 2015. While noting
that the commission's hearing was not held 45 days after the filing of the appeals and the
commission did not issue its order within 7 days after the conclusion of the hearing, the
DHO noted that the statute does not provide a remedy to relator for the failure of the
commission to comply with that portion of the statute.         Finding that there was no
authority to provide the remedy requested, the DHO denied the motion.
       {¶ 42} 17. Relator's appeal was heard before an SHO on November 24, 2015. The
SHO affirmed the prior DHO order and denied relator's motion on the same grounds,
stating:
               The Staff Hearing Officer finds the Injured Worker has failed
               to establish grounds upon which the Industrial Commission
               could assert continuing jurisdiction over the decision issued
               by the full Industrial Commission on 06/23/2015.
               Specifically, the Staff Hearing Officer finds the Injured
               Worker has failed to identify a mistake of law which can be
               remedied by R.C. 4123.511. While the Injured Worker
               accurately points out that the hearing by the full Industrial
               Commission was conducted one day outside of the 45 day
               time frame mandated in R.C. 4123.511(E) and the
               Commission's decision was issued beyond the seven day time
               frame set forth in that statutory section, the Staff Hearing
No. 16AP-101                                                                               17

               Officer finds the statute does not provide any remedy to the
               Injured Worker for a failure of the full Commission to
               comply with those statutory time frames.

               Accordingly, the Staff Hearing Officer concludes the
               Industrial Commission is without authority to grant the
               relief requested by the Injured Worker which is that the
               decision, issued on 06/23/2015, be vacated and the
               underlying Staff Hearing Officer order, issued 02/27/2015,
               be reinstated.

       {¶ 43} 18. Relator's further appeal was refused by order of the commission mailed
December 30, 2015.
       {¶ 44} 19. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 45} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 46} 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).
       {¶ 47} Relator first argues that the commission abused its discretion when it
refused to exercise its continuing jurisdiction to correct a clear mistake of law.
Specifically, relator argues that because the commission did not hold the hearing within
45 days after the filing of her notice of appeal and failed to issue its order within 7 days
after the conclusion of the hearing, the commission has a clear legal duty to exercise its
continuing jurisdiction and to vacate the commission's order which found that she had
committed fraud.
       {¶ 48} R.C. 4123.511(E) provides, in pertinent part:
               Upon the filing of a timely appeal of the order of the staff
               hearing officer issued under division (D) of this section, the
               commission or a designated staff hearing officer, on behalf of
               the commission, shall determine whether the commission
               will hear the appeal. If the commission or the designated
               staff hearing officer decides to hear the appeal, the
               commission or the designated staff hearing officer shall
No. 16AP-101                                                                               18

               notify the parties and their respective representatives in
               writing of the time and place of the hearing. The commission
               shall hold the hearing within forty-five days after the filing of
               the notice of appeal and, within seven days after the
               conclusion of the hearing, the commission shall issue its
               order affirming, modifying, or reversing the order issued
               under division (D) of this section.

       {¶ 49} In the present case, both a DHO and SHO found that relator had been
involved in work activities which were inconsistent with the receipt of TTD compensation
and found that she was overpaid that compensation for the closed period March 1, 2011
through August 6, 2013. Thereafter, both the DHO and SHO determined that the BWC
had not met its burden of proving fraud because there was insufficient evidence to
conclude that relator was subjectively cognizant of an obligation to inform either her
psychologist or the administrator of her unpaid activities at King J.
       {¶ 50} Both relator and the BWC timely appealed the SHO's order on
March 13, 2015. As such, relator argues that the commission was required to hold the
hearing on the appeals no later than April 27, 2015, 45 days after March 13, 2015.
Because the hearing was not held until one day later, April 28, 2015, relator argues that
the commission's order must be vacated. Further, relator argues that the commission was
required to issue its order within seven days after the conclusion of the hearing. The
hearing concluded on April 28, 2015, and relator argues that the commission was
required to issue its order by May 5, 2015. It is undisputed that the commission's order
was typed May 18, 2015 and mailed June 23, 2015. Relator argues that the commission's
failure to issue its order within seven days constitutes a second reason why the
commission's order must be vacated and, as such, the earlier SHO's order finding that she
did not commit fraud must be the commission's last word on the subject.
       {¶ 51} In response, the BWC argues that the failure of the commission to hold the
hearing within 45 days of the filing of the appeal and the failure to issue the order within 7
days of the hearing, did not deprive the commission of jurisdiction and further, the statute
does not provide any relief, let alone the relief relator seeks here. The Supreme Court of
Ohio discussed statutory language requiring agencies to comply within certain time
frames in In re Davis, 84 Ohio St.3d 520 (1999). Specifically, the court stated:
No. 16AP-101                                                                          19

                 It is true that where a statute contains the word "shall," the
                 provision will generally      be construed as mandatory.
                 Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d
                 102, 56 Ohio Op.2d 58, 271 N.E.2d 834, paragraph one of the
                 syllabus. "A mandatory statute may be defined as one where
                 noncompliance * * * will render the proceedings to which it
                 relates illegal and void." See State ex rel. Jones v. Farrar
                 (1946), 146 Ohio St. 467, 471-472, 32 Ohio Op. 542, 544, 66
                 N.E.2d 531, 534.

                 But, even with "shall" as the operative verb, a statutory time
                 provision may be directory. "As a general rule, a statute
                 which provides a time for the performance of an official duty
                 will be construed as directory so far as time for performance
                 is concerned, especially where the statute fixes the time
                 simply for convenience or orderly procedure." Id. at 472, 32
                 Ohio Op. at 544, 66 N.E.2d at 534. This is so "unless the
                 nature of the act to be performed or the phraseology of the
                 statute or of other statutes relating to the same subject-
                 matter is such that the designation of time must be
                 considered a limitation upon the power of the officer." State
                 ex rel. Smith v. Barnell (1924), 109 Ohio St. 246, 255, 142
                 N.E. 611, 613.

Id. at 521-22.

       {¶ 52} See also, Hardy v. Delaware Cty. Bd. of Revision, 106 Ohio St.3d 359,
2005-Ohio-5319, wherein the court stated:
                 " '[A]s a general rule, a statute providing a time for the
                 performance of an official duty will be construed as directory
                 so far as time for performance is concerned, especially where
                 the statute fixes the time simply for convenience or orderly
                 procedure.' " State ex rel. Ragozine v. Shaker, 96 Ohio St.3d
                 201, 2002 Ohio 3992, 772 N.E.2d 1192, P13, quoting State ex
                 rel. Jones v. Farrar (1946), 146 Ohio St. 467, 32 O.O. 542,
                 66 N.E.2d 531, paragraph three of the syllabus.

Id. at 363.

       {¶ 53} Finding that the statute here and the use of the word "shall" is directory,
and finding that relator was not prejudiced by the one-day delay for the hearing and the
subsequent delay for the commission's order, the magistrate finds that relator is not
entitled to the relief she seeks.
No. 16AP-101                                                                             20

       {¶ 54} Next, relator argues that the commission abused its discretion by finding
that the BWC presented sufficient evidence of fraud. A finding of fraud requires six
specific elements: (1) a representation or, where there is a duty to disclose concealment of
fact; (2) which is material to the transaction at hand; (3) made falsely with the knowledge
of its falsity; (4) with the intent of misleading another into reliance upon the
representation; (5) justifiable reliance upon the representation or concealment; and (6) a
resulting injury proximately caused by such reliance. State ex rel. Allied Holdings, Inc. v.
Meade, 10th Dist. No. 06AP-1029, 2007-Ohio-5010.
       {¶ 55} In the present case, it is undisputed that the original C-84s which relator
signed specifically asked her if she was working, to which relator replied that she was not.
The commission specifically found that "[t]he C-84 application was later modified by
BWC, and the application signed by the Injured Worker on 01/31/2013, asked if the
Injured Worker was working in unpaid activities that were not minimal and directly
earned income for someone else. The Injured Worker again answered 'no.' " Finding that
there was persuasive evidence that relator was engaged in unpaid activities directly
earning income for someone else, the commission found that she had a duty to disclose to
her treating physician the true extent of her mental, physical, and functional capabilities,
and that this concealment was material to the matter at hand.
       {¶ 56} Thereafter, the commission determined that relator had knowledge of the
falsity of the representations. Specifically, the commission stated:
               The Injured Worker is further found to have had knowledge
               of the falsity of the representations made to BWC. The
               original C-84 applications specifically asked the Injured
               Worker if she had worked in any capacity during the period
               of disability. The C-84 form did not ask if the Injured Worker
               was engaged in unpaid employment. The modified C-84
               form, signed on 01/31/2013, specifically asked the Injured
               Worker if she was engaged in unpaid activities, yet the
               Injured Worker continued to deny such activities. The
               Commission finds the C-84 form is clear and unambiguous
               that the Injured Worker was not entitled to receive
               temporary total disability compensation if she was engaged
               in the activities she was performing, but she continued to
               knowingly deny she was working. Further, the Injured
               Worker knew she was misrepresenting to her physicians her
               functional capabilities as she clearly would have been aware
               of the activities she was performing.
No. 16AP-101                                                                             21


       {¶ 57} The commission found that relator was overpaid TTD compensation from
March 1, 2011 through August 6, 2013 and, having found that she committed fraud,
ordered that the entire award be recouped pursuant to the fraud provisions of R.C.
4123.511(K). The magistrate finds that the commission abused its discretion by ordering
the entire award to be recouped pursuant to the fraud provisions.
       {¶ 58} While the commission is the ultimate fact finder and is due some deference
as to its factual findings, this court is not required to give such deference to the
commission's handling of issues which are purely legal issues. The determination of fraud
is a legal issue. The commission found that none of the C-84s which relator signed
between March 1, 2011 and January 30, 2013 informed relator that if she was engaged in
unpaid activities that were not minimal and which directly earned income for someone
else, she was not entitled to continue receiving TTD compensation. Inasmuch as the
commission specifically found that relator was not paid for the activities, it was not until
she signed the modified C-84 on January 31, 2013 that it can be said that relator knew
that her unpaid activities were precluded. As such, the magistrate finds that it was an
abuse of discretion for the commission to find that relator committed fraud when she
received TTD compensation between March 1, 2011 and January 30, 2013 because none
of those C-84s informed her that her unpaid activities were improper.             However,
inasmuch as the C-84 form signed on January 31, 2013 and the rest of the C-84 forms that
she signed between then and August 6, 2013 did contain that language, the magistrate
finds that it was not an abuse of discretion to declare that portion of TTD compensation
which relator received should be recouped pursuant to the fraud provisions. In so finding,
the magistrate acknowledges that it is certainly conceivable that, unless the BWC sent
claimants a letter warning them that the language in upcoming C-84s concerning their
activities and continued receipt of TTD compensation was going to change, it is certainly
conceivable that relator was signing C-84s in 2013 without reading them carefully because
she may have had no reason to know that the language had changed. However, the
magistrate is not in a position to make that finding.
       {¶ 59} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it declined to exercise its
continuing jurisdiction because the time requirements in the statute are directory and not
No. 16AP-101                                                                               22

mandatory. Further, the magistrate finds that relator has not demonstrated that the
commission abused its discretion by declaring she was overpaid TTD compensation from
January 31, 2013 through August 6, 2013. However, the magistrate does find that relator
demonstrated that the commission abused its discretion by declaring that the entire
amount of TTD compensation be recouped pursuant to the fraud provisions, and this
court should issue a writ of mandamus ordering the commission to vacate that portion of
its order finding fraud for the closed period of March 1, 2011 through January 30, 2013.


                                               /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).
