[Cite as State ex rel. Newsome v. Indus. Comm., 2014-Ohio-1643.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State ex rel. Michael Newsome,                      :

                Relator,                            :

v.                                                  :                  No. 13AP-453

Industrial Commission of Ohio and                   :              (REGULAR CALENDAR)
Berardi Enterprises, Inc.,
Holly Sales of Northern Ohio,                       :

                Respondents.                        :


                                        D E C I S I O N

                                      Rendered on April 17, 2014
                                                     _____

                Plevin & Gallucci, Frank Gallucci, III, and Bradley E. Elzeer,
                II; Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for
                relator.

                Michael DeWine, Attorney General, and Kevin J. Reis, for
                respondent Industrial Commission of Ohio.
                                    _____
                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

CONNOR, J.
        {¶ 1} Relator, Michael Newsome, brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order declaring an overpayment of temporary total disability compensation to
relator for the period of December 26, 2006, through November 21, 2008, and finding
that the overpayment should be collected pursuant to the fraud provisions of R.C.
4123.511(K)(4).
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who rendered a decision and
recommendation that includes findings of fact and conclusions of law, which is appended
hereto. The magistrate concluded that an affidavit of John Gillota Junior (a.k.a. John
No. 13AP-453                                                                                           2

Gillota, III), provided some evidence upon which the commission could rely in support of
its order.1
        {¶ 3} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley
v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists
where the relator shows that the commission abused its discretion by entering an order
which is not supported by any evidence in the record. State ex rel. Elliott v. Indus.
Comm., 26 Ohio St.3d 76 (1986).
        {¶ 4} As a preliminary matter, we disagree with the position taken by the Bureau
of Workers' Compensation ("BWC") that Gillota's prior statements to investigators are
consistent with his affidavit. Gillotta's affidavit clearly implicates relator in a scheme
designed to conceal earnings for work he performed for Gillotta's company by "brokering"
payments through relator's wife. (Gillota affidavit, ¶ 3.) By contrast, Gillotta's statements
to investigators are ambiguous.
        {¶ 5} In each of his objections, relator argues for a slightly different reason, that
Gillota's affidavit should not have been considered by the commission inasmuch as his
previous statements to investigators contradict his affidavit and because Gillotta
repeatedly refused to appear and give testimony pursuant to a lawfully issued subpoena.
Relator maintains that the commission essentially prevented him from exercising his
constitutional right to confront witnesses against him and that the commission's reliance
upon Gillota's unchallenged affidavit violates due process.
        {¶ 6} There is no question that the material inconsistency between Gillotta's
affidavit and his prior statements to investigators raise serious doubts about the truth of
his averments.2 However, as the magistrate noted, questions of credibility and the weight
to be given evidence are clearly within the discretion of the commission as fact finder.
State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). Here, the magistrate


1 The affidavit consists of Gillota's short responses to several written questions posed by the Attorney

General.
2In civil actions, "[a]n affidavit of a party opposing summary judgment that contradicts former deposition

testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to
defeat a motion for summary judgment." Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 28. Similarly,
"where a medical expert has, by deposition testimony, repudiated a conclusion previously made in a medical
report, that report cannot constitute evidence to support the order of the commission." State ex rel.
Jennings v. Indus. Comm., 1 Ohio St.3d 101 (1982).
No. 13AP-453                                                                             3

determined that relator's only recourse, under the circumstances, was to ask the
commission to bring a contempt action against Gillota pursuant to R.C. 4123.12. R.C.
4123.12 provides as follows:
              In case any person fails to comply with an order of the
              industrial commission or subpoena issued by the commission
              or its secretary or the bureau of workers' compensation, or
              any of their inspectors, or examiners, or on the refusal of a
              witness to testify to any matter regarding which he may be
              lawfully interrogated, or if any person refuses to permit an
              inspection, the probate judge of the county in which the
              person resides, on application of any member of the
              commission or its secretary or the bureau, or any inspector,
              or examiner appointed by the bureau, shall compel obedience
              by attachment proceedings as for contempt, as in the case of
              disobedience of the requirements of subpoena issued from
              such court on a refusal to testify therein.

(Emphasis added.)
       {¶ 7} Under the statutory scheme, a claimant does not have the authority to
initiate contempt proceedings against a recalcitrant witness. Nevertheless, the magistrate
faulted relator for failing to take the steps necessary to secure Gillota's attendance at the
hearing:
              When Gillota refused to attend the hearing, relator's counsel
              could have, but did not, ask the commission to institute
              contempt proceedings with the probate judge of the county
              in which Gillota resides. Counsel could have taken this step;
              however, counsel did not. A writ of mandamus is not
              appropriate when the requesting party has not availed
              himself of other available legal remedies. Instead, counsel
              wants this court to remove Gillota's affidavit from
              evidentiary consideration and order the commission to
              vacate its order. It is this magistrate's opinion that this court
              should not take that step.

(Magistrate's decision, 21-22.)
       {¶ 8} In his objections, relator denies any culpability arguing that the commission
asked BWC to secure Gillota's attendance at the hearing. The stipulated record
substantiates relator's claim.
       {¶ 9} In proceedings before the commission on October 16, 2012, the following
discussion took place:
No. 13AP-453                                                                    4

           MR. SANDERS: Sure. Thank you. And I guess I have a
           procedural matter to bring forth. I realize that it was Mr.
           Elzeer that requested the Industrial Commission to issue a
           subpoena to have Mr. - - and I'm not sure how to pronounce it
           - - Gillota, Gillota, present as a witness. Quite frankly, he beat
           us to it because we were also going to request the Commission
           to issue a subpoena. But I saw no need to do it a second time
           when I saw it had been done the first time.

           Obviously, as you can tell, whether or not you believe our case
           or whether or not you believe the defense on behalf of Mr.
           Newsom, the real piece of crucial evidence here would be
           either the statements or the testimony of Mr. Gillota, who has
           obviously ignored the subpoena, apparently, and is not
           present.

           I just want to present for the Commission whether or not
           based on, assuming that you've reviewed the file and you see
           what our case is, that you feel it's mandatory for one more
           effort to try or, Mr. Elzeer, I don't know how he feels about it
           since he subpoenaed Mr. Gillota, to try and have Mr. Gillota
           actually present to explain or testify as to what happened in
           this case. I'm perfectly content to go forward, I just wanted to
           bring it to your attention and see what Mr. Elzeer wanted to
           do about it.

           MR. ELZEER: We subpoenaed him on all three occasions and
           he's ignored all three subpoenas. It would be nice to have him
           here.

           HEARING OFFICER GILLMOR: We're going to take this
           under advisement and step in the back for a few minutes.

           MR. SANDERS: Okay.

           (A recess is taken.)

           HEARING OFFICER GILLMOR: The Commission would like
           to grant a continuance in this instance. And we are going to
           request that we issue a subpoena since everyone wants to
           have the witness here and his testimony is important. And
           we will put in our order that both sides would like to have
           that witness here, and it will be enforced by the Attorney
           General.

           MR. SANDERS: Thank you.
No. 13AP-453                                                                               5

              HEARING OFFICER GILLMOR: That's what we're going to
              ask for. That's what we're going to ask for.

              MR. SANDERS: Okay. Appreciate that.

              HEARING OFFICER GILLMOR: Whether the Attorney
              General will do that or not, we don't know at this point, but
              that's what we're going to ask for.

(Stip.R., 395-97.) (Emphasis added.)
       {¶ 10} Although BWC had expressed its willingness to go forward without
Gillotta's testimony, given the acknowledged credibility issues surrounding Gillota's
affidavit, the commission elected not to proceed in his absence. It is clear then that the
commission considered Gillotta to be a crucial witness in the case and that his attendance
was indispensable. It is also clear from the transcript that the commission expected that
Gillota's subpoena would "be enforced by the Attorney General." (Stip.R., 397.)
       {¶ 11} In our opinion, the commission acted unreasonably when it subsequently
permitted the BWC to rest upon Gillotta's affidavit. Under the circumstances, Gillotta's
affidavit does not qualify as "some evidence" upon which the commission could rely in
support of its order. Inasmuch as the commission expressly relied upon Gillota's affidavit,
the commission abused its discretion when it determined that relator committed fraud.
Accordingly, relator's objections are sustained.
       {¶ 12} Following an independent review pursuant to Civ.R. 53, we find that the
magistrate has properly determined the pertinent facts, and we adopt them as our own.
However, for the reasons set forth in this decision, we reject the magistrate's conclusions
of law and issue a writ of mandamus that orders the commission to: (1) vacate its order
declaring an overpayment of temporary total disability compensation paid to relator for
the period of December 26, 2006 through November 21, 2008, and finding that the
overpayment should be collected pursuant to the fraud provisions of R.C. 4123.511(K)(4);
(2) issue a new order striking the affidavit of John Gillota Junior (a.k.a. John Gillota, III);
and (3) conduct a hearing to re-determine the fraud claim based upon the evidence in the
stipulated record and any other evidence presented at the hearing.
                                         Objections sustained; writ of mandamus granted.
                              KLATT and TYACK JJ., concur.
                                  _________________
No. 13AP-453                                                                         6

                                  APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State ex rel.                               :
Michael Newsom,
                                            :
             Relator,
                                            :
v.                                                          No. 13AP-453
                                            :
Industrial Commission of Ohio                          (REGULAR CALENDAR)
and Berardi Enterprises Inc.,               :
Holly Sales of Northern Ohio,
                                            :
             Respondents.
                                            :

                                        ______


                        MAGISTRATE'S DECISION

                            Rendered on November 25, 2013
                                       _____

             Plevin & Gallucci, Frank Gallucci, III, and Bradley E. Elzer,
             II; Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for
             relator.

             Michael DeWine, Attorney General, and Kevin J. Reis, for
             respondent Industrial Commission of Ohio.
                                      _____

                                   IN MANDAMUS
      {¶ 13} Relator, Michael Newsom, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which found that relator had been overpaid temporary
total disability ("TTD") compensation and further made a finding of fraud and ordering
the commission to find that the Ohio Bureau of Workers' Compensation ("BWC") did not
meet its burden of proving the overpayment or fraud.
Findings of Fact:
No. 13AP-453                                                                                               7

        {¶ 14} 1. Relator sustained a work-related injury on April 17, 1991, and his
workers' compensation claim has been allowed for the following:
                 Lumbosacral strain; herniated disc at L5-S1 on left; lumbar
                 radiculopathy; failed back surgery syndrome; neurogenic
                 bladder; recurrent herniated L5-S1 disc; aggravation of pre-
                 existing degenerative disc disease at L4 through S1; L4-5 disc
                 bulge; depressive psychosis moderate.

        {¶ 15} 2. Relator received closed periods of TTD compensation in 1995, from
November 1999 through January 2000, and again in 2004 through November 2008.
        {¶ 16} 3. Sometime after 2000, while TTD compensation was not being paid,
relator operated a gas station which he leased from Gillota, Inc.
        {¶ 17} 4. In 2008, the BWC received information indicating that relator was
working while receiving TTD compensation.                   The Special Investigations Department
began an investigation.          As part of the investigation, the following interviews were
conducted:       (a) On December 22, 2008, Special Agents A. Cronig and J. Burke
interviewed John Gillota, Jr. (aka John Gillota, III)3. The memorandum of interview
provides the following relevant information:
                 Cronig asked [Gillota] how he met NEWSOM. [Gillota]
                 stated he met NEWSOM through NEWSOM's brother, Bill
                 Newsom.

                 After being asked, [Gillota] stated he had never employed
                 NEWSOM and that NEWSOM just leased the gas station.

                 ***

                 The interview was then discontinued when a ceiling sprinkler
                 system pipe broke.

(b) On January 16, 2009, Special Agents Cronig and M. Lang interviewed Gillota. The
following relevant information was obtained during this interview: att. 5
                 Cronig asked [Gillota] when he first met NEWSOM. [Gillota]
                 stated he met NEWSOM during late 2001 or early 2002.

                 ***



3The investigation report refers to a John Gillota, Jr. and a John Gillota III. At oral argument the magistrate
asked if they were different people and was told that they are one and the same. As such, the magistrate will
refer to this person as "Gillota."
No. 13AP-453                                                                 8

           Cronig asked [Gillota] why the lease was terminated during
           November 2005. [Gillota] stated NEWSOM couldn't make
           the lease payments and NEWSOM voluntarily elected to
           leave the gas station (ending the lease).

           ***

           Cronig asked [Gillota] what type of work NEWSOM had
           performed for [Gillota] in order for NEWSOM to repay the
           debt. [Gillota] stated NEWSOM hasn't performed any work
           in order for NEWSOM to repay the debt.

           Cronig asked [Gillota] how he would agree with NEWSOM
           how much money is deducted from NEWSOM's debt when
           NEWSOM would work for [Gillota]. [Gillota] stated the
           question didn't apply because NEWSOM didn’t work for
           [Gillota].

           ***

           Cronig asked [Gillota] how payroll is made at Gillota.
           [Gillota] stated payroll is made at Gillota by both himself and
           with Sr. reviewing time cards.

           In addition, Cronig asked [Gillota] if checks were ever
           written in someone else's name for work performed by
           NEWSOM. After Cronig asked the question, Rodio advised
           [Gillota] not to answer the question and then asked Cronig
           and Lang to leave the room. After several minutes, Cronig
           and Lang were asked to return to the room. [Gillota] then
           stated NEWSOM was not an employee.

           Continuing, Cronig asked [Gillota] is [sic] he had done
           anything to conceal NEWSOM's employment. [Gillota]
           stated he had not done anything to conceal NEWSOM's
           employment.

           Cronig showed [Gillota] a color BMV photo of Tammie A.
           Newsom (Tammie).

           Cronig asked [Gillota] who was Tammie. [Gillota] stated
           Tammie was NEWSOM's wife. [Gillota] was also asked what
           Tammie did. [Gillota] stated for the businesses (Gillota),
           Tammie didn't do anything. In addition, [Gillota] was asked
           how long Tammie has worked for [Gillota]. [Gillota] stated
           [she] didn't work for the businesses (Gillota).
No. 13AP-453                                                                     9

             [Gillota] was asked if it were true that checks written for
             Tammie were actually work NEWSOM's work with [Gillota].
             [Gillota] stated "no". Rodio then stated Tammie was a 1099
             person. [Gillota] then stated Tammie furnished the labor.
             Cronig then asked for the names of the persons which were
             furnished for labor. Rodio then stated he would not allow
             [Gillota] to provide the names of the persons which were
             furnished for labor. [Gillota] then stated he was not aware of
             NEWSOM having any problems with BWC.

             ***

             [Gillota] was asked if he knew of any of NEWSOM's friends
             or relatives and if any of them are or where [sic] employees.
             [Gillota] stated Tammie was a contractor with Gillota but
             [Gillota] didn't remember the beginning and ending dates.

             Cron[i]g asked [Gillota] where else NEWSOM worked
             besides Gillota. [Gillota] stated other than working for
             Tammie during the last two to three years, [Gillota] is not
             aware of any other employment for NEWSOM.

             ***

             Cronig asked [Gillota] to complete a written statement of
             topics covered during the interview. [Gillota] then declined
             to complete a written statement of topics covered during the
             interview. Cronig was advised that [Gillota] was looking for
             NEWSOM's and Tammie's file and that a letter might also be
             completed.

             Finally, the interview was concluded with Cronig being
             advised of information regarding a shooting which took place
             during 2005, at the Marathon gas station NEWSOM leased
             (Michael Ferrell, Cuyahoga County civil case no. 05-604519).

(c) On June 8, 2009, Special Agents Cronig and Lang interviewed Carol A. Rollo, who
had been a secretary with Gillota, Inc. for 22 years. After identifying a picture of
Tammie Newsom, Rollo replied:
             "This person looks familiar, but don't know her name." "I
             don't think she was an employee or contractor with Gillota,
             Inc."

The following other relevant information was obtained during the interview:
             Cronig asked Rollo what business relationship Tammie had
             with Gillota, Incorporated. Rollo stated she did not believe
No. 13AP-453                                                                10

           Tammie had       a   business   relationship   with   Gillota,
           Incorporated.

           Cronig asked Rollo specifically what Tammie did or service
           she performed with Gillota, Incorporated. Rollo stated with
           the previous 22 years, Tammie has not been an employee or
           contractor with Gillota, Incorporated. Also, Rollo stated
           Rollo has completed payroll taxes and W2's for Gillota,
           Incorporated, employees for the past 8 or 9 years; completed
           1099's possibly during 2002, 2003, 2004, 2005, and 2006;
           completed Workers' Compensation returns twice a year and
           completed ODJFS reports quarterly.

           Tammie has not been an employee or contractor with
           Gillota, Incorporated, for the last 22 years.

           Cronig asked Rollo if she would be surprised that Tammie
           earned $22,817.00, during 2007, and $10,912.00, during
           2008, from Gillota, Incorporated. Rollo stated she was
           surprised about the earnings because she had never observed
           Tammie or Tammie's name at Gillota, Incorporated.

           Cronig showed Rollo a color copy of NEWSOM's driver's
           license photo. Cronig then asked Rollo to identify the photo.
           Rollo stated the photo was of Mike Newsom. Rollo then
           wrote "This is Mike Newsome been called in a couple of
           times to work on trucks over a couple years". "I don't know
           what else he does for Gillota" on the photo and then verified
           this by placing her initials, date and time on the document.

           ***

           Cronig asked Rollo what business relationship NEWSOM
           had with Gillota, Incorporated. Rollo stated she was not
           currently aware of any business relationship NEWSOM had
           with Gillota, Incorporated.

           Rollo stated NEWSOM was called in several times over the
           years to work on the Gillota, Incorporated, trucks, and
           NEWSOM used to run the gas station located at East 152nd
           Street & St. Clair Avenue.

           Cronig asked Rollo what time frame NEWSOM performed
           services with Gillota, Incorporated. Rollo stated she had no
           knowledge of NEWSOM working the parking lots shuttling
           people.

           Rollo stated she did not know NEWSOM's job duties.
No. 13AP-453                                                               11


           Cronig asked Rollo when NEWSOM worked. Rollo stated she
           didn't know when NEWSOM worked.

           Rollo stated NEWSOM didn't work for Gillota, Incorporated.

           ***

           Rollo answered "I don’t know" to the following questions
           that Cronig asked:

           Isn't it true checks written to Tammie were actually for
           NEWSOM's work?

           Is there a contract between Gillota, Incorporated, and
           Tammie or NEWSOM?

           Who were the people Tammie assigned to work at Gillota,
           Incorporated?

           What did these people do at Gillota, Incorporated?

           What are the exact work dates at Gillota, Incorporated?

           Where are the bills or invoices that were submitted to
           Gillota, Incorporated, for payment made to Tammie?

           How did Gillota, Incorporated, and/or the bookkeeper know
           how much to pay Tammie?
           When did the agreement with Tammie and/or NEWSOM
           begin?
           How did this arrangement come about to have Tammie
           receive 1099's and then have someone else show up at
           Gillota, Incorporated?

           Did Tammie ever work at Gillota, Incorporated, or was it
           someone else?

           Who else was present during the period of time NEWSOM
           was present at Gillota, Incorporated?

           When was the last time Tammie or NEWSOM worked for
           Gillota, Incorporated?

           What is Tammie's         occupation   outside   of   Gillota,
           Incorporated?
No. 13AP-453                                                                         12

              Would NEWSOM's work days mirror that of the Cleveland
              Indians home games during the 2007 and 2008 baseball
              season?

(d) On June 16, 2009, Special Agents Cronig and Lang interviewed Charles E. Etheridge,
a full-time sales manager with Gillota, Inc. since 1993. Etheridge provided the following
relevant information during the interview:
              Cronig asked Etheridge when he first met Tammie.
              Etheridge stated he knew Mrs. Newsom from her husband's
              leasing of a Gillota gas station, located at East 152nd Street &
              St. Clair Avenue.

              Continuing, Cronig asked Etheridge what business
              relationship Tammie had with Gillota. Etheridge responded
              by stating Tammie was the wife of the lessee (NEWSOM).

              Cronig asked Etheridge specifically what Tammie did or
              service she performed with Gillota. Etheridge stated Tammie
              has done nothing with Gillota and that she was just the wife
              of the lessee (NEWSOM).

              Cronig asked Etheridge specifically what time frame Tammie
              performed services for Gillota. Etheridge stated Tammie is
              the lessee's wife, Tammie is not working for Gillota, and the
              last time Etheridge saw Tammie was about one year ago
              when Tammie was in nursing school.

              Cronig asked Etheridge if he would be surprised that
              Tammie earned $22,817.00, during 2007, and $10,912.00,
              during 2008, from Gillota. Etheridge stated he was surprised
              that Tammie earned $22,817.00, during 2007, and
              $10,912.00, during 2008, from Gillota.

              Finally, Cronig showed Etheridge a color copy of NEWSOM's
              driver's license photo. Cronig then asked Etheridge to
              identify the photo. Etheridge stated the photo was of her
              (Tammie's) husband. Etheridge then stated he wanted to
              stop the interview and that this was something between
              Gillota, the wife (Tammie), and husband (NEWSOM).

(e) As part of the investigation, the special agents obtained copies of the warrants paid
to relator as well as copies of the cancelled checks made out to relator's wife, Tammie
Newsom, on the Gillota, Inc. account.
       {¶ 18} 5. On March 18, 2011, Drew A. Smith, assistant attorney general, sent a
letter to Mr. Steven Yoo, attorney for Gillota, stating:
No. 13AP-453                                                                           13

            As we have discussed, the goal of this office, Special Agent
            Adam Cronig and the Ohio Bureau of Workers'
            Compensation is to receive a complete and truthful
            statement from [Gillota], as to his knowledge of Michael
            Newsom's work activity, nature of that work activity and the
            nature and amount of payment Mr. Newsom received for his
            work for Mr. Gillota or Mr. Gillota company.

            In pursuit of this goal, and to avoid requiring Mr. Gillota['s]
            appearance before a Grand Jury, we are requesting that Mr.
            Gillota supply us with a sworn affidavit addressing these
            issues. Please find attached a list of questions and issues that
            we are requesting that Mr. Gillota address in the affidavit.

     {¶ 19} 6. Gillota provided, under oath, an affidavit dated April 16, 2011, stating:
            [One] From December 2006 through present, what work has
            Michael Newsom completed for Mr. Gillota or his company?

            Answer: No work completed for Mr. Gillota. Causal labor for
            the Company, including maintenance at 300 Central Viaduct
            and directing the parking of cars during events.

            [Two] From December 2006 through present, what work has
            Tammie Newsom completed for Mr. Gillota or his company?

            Answer: No work completed for Mr. Gillota. No known work
            completed for the Company since Dec. 2006.

            [Three] Why were checks written to Tammie Newsom?

            Answer: Because of pending civil litigation against Mr.
            Newsom filed in Oct. 2006 arising from a shooting incident,
            the work was brokered through his wife.

            [Four] Were some, any or all of the checks written to
            Tammie Newsom for the work performed by Michael
            Newsom for John Gillota or his company?

            Answer: Yes.

            [Five] How much and how did Michael Newsom get paid for
            his work?

            Answer: Any amounts paid for Mr. Newsom's work were
            reported on 1099s issued to Mrs. Newsom; Mr. Gillota does
            not know how much Mr. Newsom received from Mrs.
            Newsom.
No. 13AP-453                                                                           14

              [Six] From December 2006 through present, provide specific
              days, dates and hours per day that Michael Newsom worked
              for Mr. Gillota or his company.

              Answer: Unknown.

              [Seven] What records are available to show the specific work
              dates?

              Answer: None.

              [Eight] Provide the names of other people that were present
              during the times when Michael Newsom worked from
              December 2006 through present for John Gillota or his
              company.

              Answer: The only person Mr. Gillota knows for sure would
              have seen Mr. Newsom working is Mr. Gillota.

              [Nine] What type of lifting was involved with Michael
              Newsom's job?

              Answer: Mr. Newsom performed light duty repair work,
              which did not require much lifting to Mr. Gillota's
              knowledge.

       {¶ 20} 7. On January 5, 2012, the BWC filed a motion asking the commission to
exercise its continuing jurisdiction, terminate relator's TTD compensation as of December
26, 2006, find that he had been overpaid TTD compensation, and further asking the
commission to make a finding of fraud. The BWC's motion was supported by the report
of the investigators, as well as cancelled checks, bank statements, invoices, affidavits and
other statements made which circumstantially indicate that relator had been employed
during the time in question working on trucks, performing casual labor including
maintenance and directing the parking of cars during events.
       {¶ 21} 8. In response, relator's wife, Tammie A. Newsom, signed a letter (not
notarized) dated February 15, 2012, stating:
              This letter is to inform you and all parties involved that I
              have been a Contracted Liaison for Gillota Inc.
              300 Central Viaduct
              Cleveland, Ohio 44115

              All checks have been written in my name as a contracted
              liaison with Marathon Gas Station, Gas Rebate Checks, Oil
No. 13AP-453                                                                           15

              Rebate Checks, Labor, Deposits, Profits, etc. I ran the
              Marathon Gas Station along with my husband's deceased
              brother Bill Newsome [sic], but I was in charge. I reported
              daily to Gillota Inc. I am the person whom took care of all
              deposits for Gillota Inc. I am the person whom delivered
              daily deposit slips and/or cash money to Gillota Inc.

       {¶ 22} 9. Because Gillota had submitted an affidavit containing contradicting
statements which he made to the special agents in 2009, counsel for relator asked that
Gillota be subpoenaed to testify at the upcoming hearing before the district hearing officer
("DHO").
       {¶ 23} 10. A subpoena was issued; however, Gillota did not appear.
       {¶ 24} 11. The hearing before the DHO was conducted on June 19, 2012. As above
indicated, Gillota did not appear for the hearing. Likewise, neither relator nor his wife
appeared for the hearing. The only testimony offered was from Agent Cronig. Counsel for
relator's primary argument was that the commission should not consider the April 16,
2011 affidavit of Gillota because the statements made in the affidavit contradicted the
statements Gillota made to the special agents when they first interviewed him. Further,
counsel argued that, inasmuch as Gillota did not comply with the subpoena and did not
attend the hearing, relator was deprived of his right to confront adverse witnesses.
       {¶ 25} In response to counsel for relator's argument, counsel for the BWC argued:

              [Ms. Evanick:] [W]e're talking about [Gillota], and that's the
              person that Mr. Cronig interviewed.

              What you have from him is an interview December 22nd of
              2008. That's attachment one. That interview took place at
              Gillota Fuel Products, at the Central Viaduct, which was his
              business address. He was asked whether or not he knew
              [Newsom]. He said he did because he leased a Marathon Gas
              Station at East 152nd and St. Clair.

              Now, just a little bit of background about that gas station. All
              over the claim file there's evidence that he ran that gas
              station. We don't have any dispute about his activity at that
              gas station. As far as we know and from every -- the evidence
              that we have, that gas station ceased operating and he ceased
              -- or at least he ceased doing any activity there in 2005.
              We're not talking about any activity with respect to that
              Marathon Gas Station. The activity that we're talking about
              is work that he performed for the Gillota Company doing
              maintenance and directing cars.
No. 13AP-453                                                                 16


           So at any rate, Mr. Gillota noted that Mr. [Newsom] leased a
           Marathon Gas Station at East 152nd. That's how he knew
           him. He said he never employed Mr. [Newsom]. The
           interview had to terminate then because the sprinkler system
           busted, everybody left. They came back either January 12th
           or January 16, and they began the interview, and it was at
           that interview that the two attorneys, Mr. Rodio and Steve
           Yoo, were present. That's contained in attachment five.

           And the crux of that interview, Mr. Gillota stated several
           times that [Newsom] didn't work for him. They asked if the
           checks were written in someone else's name for work
           performed by [Newsom], and at that point in time Mr. Rodio
           instructed Mr. Gillota not to answer. A private discussion
           ensued. Mr. Gillota came back and the answer was that Mr.
           [Newsom] was not an employee.

           I think the key portion of that interview is that Mr. Gillota
           said for the business, the Gillota business, Tammy didn’t do
           anything. Tammy was a 1099 person and furnished the
           labor. She was a contractor. And then if you look, I think it's
           on the second page, I think, again, a key portion of that
           interview, it says where else did [Newsom] work besides
           Gillota. Other than working for Tammy during the last two
           or three years, he is not aware of any other employment of
           [Newsom].

           So then you jump forward and you have this notarized
           affidavit that was performed -- or that was obtained and sent
           to us by Steven Yoo. That's dated on 4-16 of 2011, and that's
           attachment ten. And I think if you look at that, it ties the
           whole picture together. The affidavit covers a period from
           December of 2006 to the present. And what Mr. Gillota says
           is that Mr. [Newsom] did casual labor for the company,
           including maintenance at 300 Central Viaduct, in directing
           of parking of cars during events. Tammy [Newsom] -- again,
           consistent with the previous statement that he gave.

           Tammy [Newsom] did no work for Mr. Gillota and no known
           work for the company since December of 2006. Checks were
           written to Tammy for work that was done by Michael
           because there was a pending civil litigation against Mr.
           [Newsom], so the work was brokered through his wife. Mr.
           [Newsom] performed light duty repair work.

           In addition to the interviews with Mr. Gillota, there's an
           interview with Charles Etheridge on 6-16 of 2009. Mr.
No. 13AP-453                                                                 17

           Etheridge is the full-time sales manager with Gillota. He's
           been there since 1993. The only way he knew Tammy
           [Newsom] was from her husband leasing the gas station at
           152nd and St. Clair.

           He said Tammy had nothing to do with Gillota. She was just
           the wife of [Newsom]. Tammy is not working for Gillota. The
           last time he saw her was about a year ago. That would have
           been taking it back to '08, which is during -- and before the
           overpayment, the end of the overpayment period. Saw her a
           year ago when she was in nursing school.

           Mr. Cronig then asked Michael [Newsom] -- or Mr. Cronig
           asked Mr. Etheridge about Michael [Newsom], and it was at
           that point that Mr. Etheridge terminated the interview and
           said, you know what, this is not -- I'm not going to talk about
           this, this is something between Gillota, Tammy, and
           [Newsom].

           So what we have is -- the evidence is all consistent that
           Tammy did no work for Gillota. Gillota's original interview
           says that, Gillota signed a notarized statement that says that,
           Charles Etheridge's statement says that.

           What we do have are checks that are written to Tammy. And
           if they weren't for work she did, then what were they for?
           And I would submit to you that they're payment for work
           that was done by Michael [Newsom], and, again, I think that
           Mr. Gillota's interview supports that.

           Now, Mr. Elzeer, and I think he basically said this in his
           opening statement, he said Mr. Gillota's flip-flopping in his
           statements originally saying, well, Mr. [Newsom] didn't work
           for him, and then he's saying that he did. But I think if you
           read the documents carefully, they're very consistent. Mr.
           Gillota said originally that he didn't work for the company,
           that he wasn't an employee of Gillota. He said that [Newsom]
           worked for Tammy and that he was casual labor.

           So I think if you look at it with the -- through the lens of,
           okay, well, Mr. Gillota was believing that there wasn't a
           direct relationship between himself and Mr. [Newsom],
           Tammy was the one brokering the work. I think if you read,
           again, the statements, they are consistent. He wasn't an
           employee of Gillota, he was an employee of Tammy, and his
           first interview says as much. He says the only work he did
           was for Tammy during the period in question.
No. 13AP-453                                                                       18

               So I think if you, again, look at them closely, it doesn't matter
               whether you call him an employee, an independent
               contractor, a brokered worker, casual worker, at the end of
               the day what we have is uncontroverted evidence that
               Tammy wasn't doing the work. We have multiple checks that
               were written to Tammy, and we have a statement -- two
               statements from Mr. Gillota that can be read consistently
               that he wasn't an employee of Gillota but he was working for
               Tammy, and I think that that's certainly sufficient evidence
               of an overpayment of -- based on work that's being
               performed in exchange for pay.

(Tr. 13-18.)

       {¶ 26} 12. The DHO concluded that the BWC established an overpayment and that
fraud was committed in the inducement of the payments for the
               The District Hearing Officer finds that the evidence in the
               claim establishes that during the time in question, Mr.
               Newsom worked on trucks and performed casual labor
               including maintenance and directed the parking of cars
               during events.

               The evidence is in the form of statements and affidavits
               secured from Carol Rollo and [Gillota]. These establish that
               Mr. Newsom performed the work as stated. While the initial
               statements secured from [Gillota] indicated that Mr.
               Newsom did not work for him or his company, he concluded
               his last interview with Agent Cronig by indicating that he was
               looking for his file regarding the matter and that additional
               information might be forthcoming. Additional information
               in the form of a sworn statement dated 4/16/2011 was
               secured which indicated that Mr. Newsom performed the
               work in question.

               It is noted that Mr. Newsom failed to attend today's hearing
               to offer any testimony on the Administrator's motion.

               Many times in claims where fraud is being alleged there is
               clear evidence establishing that the person in question is
               working. This evidence takes the form of video evidence,
               testimony or statements secured from parties that have
               observed the person working, and other evidence
               establishing payment for services rendered. Such is not the
               case in this file.

               In this claim we have statements from [Gillota], and from
               Ms. Rollo, both of which indicate that Mr. Newsom worked
No. 13AP-453                                                                 19

           during the period in question. There is also evidence that Mr.
           Newsom's then wife, Tammie, was paid significant amounts
           of money during the period in question and [Gillota]
           indicates in his affidavit that some of this money was for the
           work performed by Mr. Newsom.

           As to the issue of fraud the District Hearing Officer must
           address the prima facie elements which are: 1) a
           representation, or where there is a duty to disclose, a
           concealment of fact; 2) which is material to the transaction at
           hand; 3) made falsely, with the knowledge of its falsity, or
           with such utter 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 on 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 first element of
           fraud has been proven. Mr. Newsom had a duty to disclose
           that he was working during the periods in question and he
           did not. The evidence establishes that he submitted
           numerous C-84 forms on which he answered "No" when
           asked if he had worked in any capacity (emphasis added).
           The evidence further establishes that he was being disabled
           on the basis of his allowed physical conditions and it must be
           presumed that as his physicians completed C-84 forms on
           his behalf, that he concealed his employment from the
           doctor/s.

           The District Hearing Officer finds that the second and third
           elements of fraud have been proven. The evidence contained
           in the report of the Special Investigation Unit of the Bureau
           establishes that Mr. Newsom executed C-84s under the
           warning language which advised that the recipient knows
           that he/she is not entitled to work while receiving temporary
           total disability compensation. Clearly, the breach of his duty
           to disclose the fact that he was working along with his
           concealment of this fact from his physician was material to
           the execution and completion of the C-84s and the payments
           made to Mr. Newsom by the Administrator.

           The District Hearing Officer finds that the fourth element of
           fraud has been proven. As stated above, Mr. Newsom
           executed the C-84s which were submitted to the
           Administrator and he accepted the benefits generated by
           these C-84s. The Administrator would not have paid the
           benefits had he disclosed the fact that he was working and
No. 13AP-453                                                                         20

              the concealment of this fact is found to have been done to
              induce the Administrator into paying the benefits.

              The District Hearing Officer finds that the fifth and sixth
              elements of fraud have been proven. The Administrator
              justifiably relied upon the C[-]84s submitted on behalf of Mr.
              Newsom in making the payment of benefits. The
              Administrator specifically relied on the statements of Mr.
              Newsom that he was not working and his signature above the
              warning language on the C-84s to make payments from the
              state insurance fund. Had he informed the Administrator or
              any of its agents that he was working the payments would
              not have been made. Therefore, the overpayment of these
              benefits was the direct result of Mr. Newsom's
              misrepresentations.

              Accordingly, the District Hearing Officer finds that based
              upon the evidence on file and presented at hearing, the
              Administrator has met its burden of proving that Mr.
              Newsom committed fraud regarding his receipt of temporary
              total disability over the periods set forth above.
              Consequently, an overpayment exists in this matter which
              should be recouped by the Administrator according to O.R.C.
              4123.511 (K).

       {¶ 27} 13. Relator appealed and again requested that Gillota be subpoenaed to
testify before the staff hearing officer ("SHO").
       {¶ 28} 14. A subpoena was issued to compel Gillota to appear and testify.
However, Gillota did not attend the August 10, 2012 hearing before the SHO. Further, as
before, relator likewise did not attend the hearing before the SHO and the only testimony
was from Special Agent Cronig. Counsel for relator again argued that the Gillota affidavit
should not be considered.
       {¶ 29} 15. The SHO vacated the prior DHO order and denied the BWC's motion,
stating:
              This Staff Hearing Officer finds that the Bureau of Workers'
              Compensation has not met their burden of proving fraud or
              that the Injured Worker was working while receiving
              temporary total disability benefits at this time.

              This Staff Hearing Officer finds insufficient evidence to
              establish that the Injured Worker was actually working
              during any of these periods of time. The initial investigation
              evidence clearly indicates a denial of that fact by all parties
              involved, with what appears to be some prevarication. It is
No. 13AP-453                                                                         21

              only the affidavit of [Gillota], dated 04/16/2011, that
              indicates the Injured Worker was performing any activities
              for them. The affidavit does not indicate the days the Injured
              Worker worked, the hours that he worked or the amounts
              that he was paid. They refer to 1099's submitted to the
              Injured Worker's wife as a Contractor. The Staff Hearing
              Officer finds that this affidavit is a contradiction of most of
              the prior interviews and testimony in this claim.

              The Staff Hearing Officer finds the Bureau of Workers'
              Compensation simply has not submitted sufficient evidence
              that the Injured Worker was performing work activities
              while receiving temporary total disability compensation.

       {¶ 30} 16. The BWC appealed and, again, Gillota was subpoenaed to testify.
       {¶ 31} 17. According to the evidence submitted, the certified mail was signed for
by Carol Rollo.
       {¶ 32} 18. Again, Gillota did not appear for the hearing before the commission. At
this time, the commission granted a continuance to again subpoena Gillota.
       {¶ 33} 19. A new subpoena was issued to compel Gillota to testify; however, Gillota
did not attend.
       {¶ 34} 20. Instead of appearing, counsel for Gillota, Steven R. Yoo, submitted a
letter dated December 28, 2012, stating:
              Please be advised that [Gillota] has retained Frantz Ward
              LLP in connection with the attached subpoena. For the
              reasons set forth below, Mr. Gillota will not attend the
              hearing scheduled for January 10, 2013, at 1:00 p.m. in
              Room #1.

              First and foremost, [Gillota] has either met with or assisted
              the BWC and the Ohio Attorney General's office on at least
              three (3) occasions, at his expense dating back to 2008.

              Second, [Gillota] has already searched his records for any
              available documentation and has already turned over those
              documents to the BWC.

              Third, [Gillota] already provided a signed Affidavit to the
              AG's office on April 13, 2011 (see attached). More
              importantly, this Affidavit was a direct response to specific
              questions drafted by Drew Smith, Assistant Attorney General
              (see attached). Any alleged information or statements set
              forth in either Mr. Cronig's notes or his reports that are
              inconsistent with the Affidavit cannot and should not be
No. 13AP-453                                                                    22

              considered, since they were not statements of [Gillota] and
              certainly not under oath. The affidavit speaks for itself, and
              [Gillota] has no further recollections and cannot offer any
              further information.

              For the reasons set forth above, [Gillota] will not attend the
              hearing. It is unnecessary, unduly burdensome and not likely
              to lead to any future information.

(Emphasis sic.)

       {¶ 35} 21. As before, the only witness who testified was Special Agent Cronig.
Neither relator nor his wife appeared and relator's counsel again made the same
arguments asserting that Gillota's affidavit should not be considered.
       {¶ 36} 22. Following the January 10, 2013 hearing, the commission vacated the
SHO's order and granted the motion of the BWC to find an overpayment of TTD
compensation and fraud, stating:
              Temporary total disability compensation is found overpaid
              from 12/26/2006 to 11/21/2008 based on the Injured
              Worker fraudulently withholding from the BWC his return to
              work for this period. The overpayment is ordered recouped
              consistent with R.C. 4123.511 (K) (4).

              The Commission finds the Injured Worker performed work
              for [Gillota] consisting of casual labor, maintenance, light
              duty repair work, and directing and parking cars. This
              finding is based upon the affidavit from [Gillota], dated
              04/16/2011, and is buttressed by the proof of payment to
              Tammie Newsom, the Injured Worker's spouse at the time.

              The prima facie elements of fraud include: 1) a
              representation, or where there is a duty to disclose, a
              concealment of fact; 2) which is material to the transaction at
              hand; 3) made falsely, with the knowledge of its falsity, or
              with such utter 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 on it; 5) justifiable
              reliance upon the representation or concealment; and 6) a
              resulting injury proximately caused by the reliance.

              The Injured Worker had a duty to disclose his employment.
              The Injured Worker signed seven C-84, Request for
              Temporary Total, forms, 23 BWC warrants, received
              accompanying payment remittances, and completed two
              ACT Enrollment and Direct Deposit Authorization forms.
No. 13AP-453                                                                            23

              The forms, warrants, and remittances all warned the Injured
              Worker that he was not entitled to collect temporary total
              disability compensation while working. These warnings
              established the Injured Worker's duty to disclose a return to
              work and the Injured Worker's utter disregard for such. The
              Injured Worker's failure to notify his attorney, physicians,
              the BWC, or the Managed Care Organization was material as
              it resulted in the payment of temporary total disability
              compensation to which the Injured Worker was not entitled.

              The affidavit from Mr. Gillota, dated 04/16/2011, explains
              that the Injured Worker performed work and remuneration
              was made payable to the Injured Worker's spouse, Tammie
              Newsom. There is no evidence that Tammie Newsom
              performed any of the work. This evidence, therefore,
              supports the conclusion the Injured Worker intended to
              mislead the BWC in order to receive temporary total
              disability compensation while working. The BWC justifiably
              relied upon the Injured Worker's false representations since
              they had no basis, at the time, to suspect the Injured Worker
              was working. The BWC's reliance, however, led to the
              payment of compensation, from 12/26/2006 to 11/21/2008,
              which the Injured Worker was not entitled to receive.

              Accordingly, the Injured Worker was overpaid temporary
              total disability compensation from 12/26/2006 to
              11/21/2008 and the overpayment shall be recouped
              consistent with the fraud provision of R.C. 4123.511 (K) (4).

      {¶ 37} 23. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 38} For the reasons that follow, it is the magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 39} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
No. 13AP-453                                                                          24

Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 40} TTD benefits are intended to compensate an injured worker for the loss of
earnings sustained while their work injury heals. State ex rel. Ashcraft v. Indus. Comm.,
34 Ohio St.3d 42 (1987) and State ex rel. Parma Community Gen. Hosp. v. Jankowski, 95
Ohio St.3d 340, 2002-Ohio-2336. Accordingly, temporary TTD benefits cease when a
claimant has returned to work. Id.
       {¶ 41} In State ex rel. Ford Motor Co. v. Indus. Comm., 98 Ohio St.3d 20, 2002-
Ohio-7038, the Supreme Court of Ohio held that R.C. 4123.56(A) prohibits the receipt of
TTD compensation while engaging in any type of work. State ex rel. Johnson v. Rawac
Plating Co., 61 Ohio St.3d 599 (1991), holds that the claimant does not have a right to
engage in gainful employment while receiving TTD compensation. Further, in State ex
rel. Blabac v. Indus. Comm., 87 Ohio St.3d 113 (1999), the court held that any return to
work, including part-time work, precludes the payment of TTD compensation.
       {¶ 42} The commission argues that the BWC presented sufficient evidence to
establish a prima facie case that relator worked and received remuneration for work
activities while receiving TTD compensation. In finding that the BWC did present a prima
facie case, the commission relied exclusively on the April 16, 2011 affidavit of Gillota
indicating that, from December 2006 relator performed casual labor, including
maintenance and directing the parking of cars during events, for Gillota's company.
Gillota was not able to provide any specific dates when relator was working. Gillota also
indicated that any amounts which his company paid for relator's work were actually
reported on 1099s issued to his wife.
       {¶ 43} Questions of credibility and the weight to be given evidence are clearly
within the discretion of the commission as fact finder. Teece. Further, it is immaterial
whether other evidence, even if greater in quality and/or quantity, supports a decision
contrary to the commission's. State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d
373 (1996).
       {¶ 44} Relator's entire argument focuses on his contention that the commission
violated his due process right to cross-examine Gillota when he refused to honor the
subpoena and appear for the hearing. According to relator, when Gillota refused to
No. 13AP-453                                                                            25

appear for the hearing, the commission should have rejected his 2011 affidavit. Once that
crucial piece of evidence upon which the commission ultimately relied to find that he had
been working while receiving TTD compensation and he had committed fraud is removed
from consideration, relator contends that there is no evidence in the record that would
support a finding that he was working or that he committed fraud.
       {¶ 45} The magistrate finds that it is not necessary to consider relator's due process
argument because relator failed to avail himself of the opportunity to ask the commission
to take further action to compel Gillota's attendance.
       {¶ 46} R.C. 4123.08 provides:

              Powers of officers in administrative proceedings

              Each member of the industrial commission, and its
              deputies, supervisors, directors, and secretaries,
              appointed by the commission, and employees of the
              bureau of workers' compensation designated by the
              administrator of workers' compensation, may for the
              purposes contemplated by this chapter, administer oaths,
              certify to official acts, take testimony or depositions, conduct
              hearings, inquiries, and investigations, issue subpoenas,
              and compel the attendance of witnesses and the
              production of books, accounts, papers, records, documents,
              evidence, and testimony.

(Emphasis added.)

       {¶ 47} Further, R.C. 4123.12 provides:

              Attachment proceeding to compel obedience

              In case any person fails to comply with an order of the
              industrial commission or subpoena issued by the
              commission or its secretary or the bureau of workers'
              compensation, or any of their inspectors, or examiners, or on
              the refusal of a witness to testify to any matter
              regarding which he may be lawfully interrogated, or
              if any person refuses to permit an inspection, the probate
              judge of the county in which the person resides, on
              application of any member of the commission or its
              secretary or the bureau, or any inspector, or
              examiner appointed by the bureau, shall compel
              obedience by attachment proceedings as for
              contempt, as in the case of disobedience of the
No. 13AP-453                                                                            26

               requirements of subpoena issued from such court
               on a refusal to testify therein.

(Emphasis added.)

         {¶ 48} Counsel for relator knew that Gillota's testimony was crucial and, for that
reason, specifically asked the commission to subpoena him.              In fact, Gillota was
subpoenaed several times; however, Gillota never appeared to testify. Instead, by letter
dated December 28, 2012, Gillota's attorney informed the commission that Gillota would
not attend the hearing.
         {¶ 49} When Gillota refused to attend the hearing, relator's counsel could have, but
did not, ask the commission to institute contempt proceedings with the probate judge of
the county in which Gillota resides. Counsel could have taken this step; however, counsel
did not. A writ of mandamus is not appropriate when the requesting party has not availed
himself of other available legal remedies. Instead, counsel wants this court to remove
Gillota's affidavit from evidentiary consideration and order the commission to vacate its
order. It is this magistrate's opinion that this court should not take that step.
         {¶ 50} Finding that the commission did not abuse its discretion when it considered
Gillota's affidavit, the question remains whether that affidavit constituted some evidence
that relator was working while receiving TTD compensation and whether or not that
affidavit and the checks written to relator's wife constitute some evidence of fraud.
         {¶ 51} It is undisputed that an injured worker is prohibited from receiving TTD
compensation while engaging in any type of gainful employment. See Ford Motor Co.;
Johnson; and Blabac.
         {¶ 52} In the present case, although relator was never observed working, Gillota's
affidavit does constitute some evidence that relator was working during the relevant time
period. Further, the affidavit of Gillota supports the finding that relator was paid for his
work—specifically, checks were written to his wife for his work. As Gillota's affidavit
indicates, relator's wife did not perform any work.
         {¶ 53} Having found that there was some evidence in the record to support the
commission's determination that relator was working and that he was overpaid TTD
compensation, the question to be addressed next concerns whether or not there was some
evidence in the record to support the commission's determination that relator committed
fraud.
No. 13AP-453                                                                           27

       {¶ 54} The elements of fraud are: (1) a representation or, where there is a duty to
disclose, concealment of a fact; (2) which is material to the transaction at hand; (3) made
falsely, with knowledge of its falsity or with such utter 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. Gaines v.
Preterm-Cleveland, Inc., 33 Ohio St.3d 54 (1987).
       {¶ 55} In the present case, relator was required to notify the commission if he
returned to any work. The fact that he was working and that his wife was being paid for
his work was material. Further, the fact that relator's wife received the money instead of
him demonstrates that relator understood the nature of his actions, knew those actions
were wrong, and had the intent to mislead the commission into continuing to pay him
TTD compensation. Relator did receive TTD compensation during a period of time when
he was working demonstrating that the commission justifiably relied upon his
representation and his concealment and was injured.
       {¶ 56} The Gillota affidavit and the money paid to relator's wife constitutes some
evidence supporting the commission's determination that relator was working and being
paid to work while receiving TTD compensation and supports the commission's order. As
such, the magistrate finds that the commission did not abuse its discretion and this court
should deny relator's request for a writ of mandamus.

                                          /S/MAGISTRATE
                                         STEPHANIE BISCA BROOKS


                              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).
