[Cite as State ex rel Sanders v. Indus. Comm., 2016-Ohio-7704.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel. Nancy E. Sanders,                :

                 Relator,                              :

v.                                                     :               No. 15AP-496

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




                                         D E C I S I O N

                                   Rendered on November 10, 2016


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

                 On brief: Michael DeWine, Attorney General, and
                 Stephen D. Plymale, for respondent Industrial Commission of
                 Ohio.

                 On brief: Kegler, Brown, Hill & Ritter Co., L.P.A., David M.
                 McCarty, Randall W. Mikes, and Katja Garvey, for
                 respondent Wyandot, Inc.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.
        {¶ 1} Relator, Nancy E. Sanders, the spouse of Thomas Sanders ("decedent"), 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 that
denied her request for accrued temporary total disability ("TTD") compensation following
the death of decedent, and to enter an order granting said compensation.
No. 15AP-496                                                                               2


       {¶ 2} This court referred the matter to a court-appointed magistrate pursuant to
Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued
the appended decision, including findings of fact and conclusions of law, and
recommended that this court grant relator's request for a writ of mandamus. Wyandot,
Inc. ("Wyandot"), respondent, and the commission have filed objections to the
magistrate's decision.
       {¶ 3} We will address Wyandot's and the commission's objections together, as
they both argue for the same result based on generally the same rationales. After
reviewing the orders of the staff hearing officer ("SHO") and district hearing officer
("DHO") and the magistrate's decision, we find the decisions of the SHO and DHO were
supported by "some evidence," and we decline to adopt the magistrate's decision finding
the contrary. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). We
agree with the magistrate that there exists no case law on point with the facts of this case,
but we depart from the magistrate's over reliance on R.C. 4123.95's mandate that workers'
compensation statutes be liberally construed in favor of employees and the dependents of
deceased employees. We do not believe the current case demands reliance upon
construction of a statute. Instead, as the commission determined, there exists a definitive
determination by the common pleas court that the decedent was not entitled to an
allowance for the additional conditions. The magistrate found that "[a]t the time of his
death, decedent's claim was additionally allowed for these conditions and there is no way
to know whether or not a jury would have agreed or concluded otherwise." However, we
do know that the conditions were disallowed because the parties entered into an agreed
entry indicating such. Thus, we do know the outcome of the matter. The trial court's
dismissal entry indicates that Wyandot's and decedent's attorney agreed that, with
decedent's death, neither decedent nor the Ohio Bureau of Workers' Compensation could
establish decedent's entitlement to participate in the workers' compensation fund for
these medical conditions. The common pleas court having conclusively ruled that
decedent's claim for additional conditions was disallowed precludes a subsequent award
of TTD compensation in favor of decedent's spouse. Therefore, for these reasons, we find
the objections of Wyandot and the commission, insofar as they rely on our above
reasoning, well-taken.
No. 15AP-496                                                                             3


      {¶ 4} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of Wyandot's and the
commission's objections, we sustain the objections. Although we adopt the magistrate's
findings of fact, we reject her conclusions of law.      Relator's request for a writ of
mandamus is denied.
                                         Objections sustained; writ of mandamus denied.

                           LUPER SCHUSTER, J, concurs.
                        BRUNNER, J., concurs in judgment only.

BRUNNER, J., concurring in judgment only.
      {¶ 5} I concur in judgment only with the majority, and I wish to elaborate on how
the decision of the Marion County Court of Common Pleas can fairly be characterized as
"some evidence" upon which the Industrial Commission of Ohio ("Commission") could
rely in denying the surviving spouse's claim for her husband's temporary total disability
('TTD") compensation for the period of March 28, 2013 to the date of his death, March 6,
2014. The key reason compensation to the decedent was denied (albeit after his death) for
the specified conditions for the specified period is because his employer appealed to the
Marion County Court of Common Pleas.           The employer won the appeal after the
decedent's death when an agreed dismissal entry was entered that included language
deciding the case for the employer on its merits. Had the employer not appealed, there
would be no basis for the action now before us, because the decedent would have enjoyed
the benefits awarded him beginning March 28, 2013 until his death. Because this action
has been independently brought by the decedent's surviving spouse in her own capacity
and as the decedent's dependent, the status of the decedent's claim at the time of his
death or at the time of the trial court's judgment entry is not determinative of our review
of the Commission's decision on the surviving spouse's timely claim.
      {¶ 6} The magistrate and the parties recognized that "there is not case law directly
on point" concerning the facts presented when the Bureau of Workers' Compensation
approves compensation for one or more conditions for a specific period of time, the
employer appeals pursuant to R.C. 4123.60 to the common pleas court and the claimant
dies before the determination of the common pleas court appeal. (Magistrate's Decision
No. 15AP-496                                                                             4


at ¶ 37.) The magistrate correctly stated, "there is no way to know whether or not a jury
would have agreed or concluded otherwise" concerning the decedent's allowed conditions.
(Magistrate's Decision at ¶ 39.)
       {¶ 7} But, here, for whatever reason, the dismissal entry in the Marion County
Court of Common Pleas, filed October 28, 2014, not only dismissed the employer's appeal,
it determined the outcome of the employer's appeal as a matter of law. As such it was a
determination of law that the Commission was bound to follow in deciding compensation
in the decedent's case. According to our holding in Barr v. Columbus S. Power Co., 10th
Dist. No. 96APE05-638 (Dec. 17, 1996), we can simply view the trial court's agreed
dismissal entry as one determining that decedent's condition "has been litigated" for the
purposes of whether to award workers' compensation to him.
       {¶ 8} But when the "surviving spouse and dependent of decedent" files her own
motion for the same benefits that were denied by the Marion County Court of Common
Pleas, it is a separate action not bound by the outcome of the first action. (Magistrate
Decision at ¶ 25.) The Eleventh District Court of Appeals has explained:

              A claimant's death not only abates his workers' compensation
              claim but may also create an interest in his dependent(s). This
              can occur * * * in two different ways. In the first scenario, a
              dependent may recover where the claimant had made a claim
              for benefits, obtained an award, and actually accrued benefits.
              In the second scenario, R.C. 4123.60 allows a dependent of
              the decedent to timely apply for compensation, if the decedent
              would have been lawfully entitled to have applied for an
              award at the time of his death. Under this portion, a
              dependent is therefore entitled to file an independent claim
              for compensation that the deceased employee could have
              pursued but for his death.

(Emphasis added.) Largent v. Sticker Corp., 11th Dist. No. 2010-L-061, 2011-Ohio-6094,
¶ 28. Here, the parties and the magistrate focused on whether the time of the decedent's
death controlled or the time of the Marion County Court of Common Pleas dismissal entry
controlled. It is neither. Rather, the focus is on the parties. Relator has separate claims
from the decedent, and she has not brought her action as the decedent's administrator,
but in her own right as the surviving spouse and dependent of decedent pursuant to R.C.
4123.60. (Magistrate's Decision at ¶ 25.)
No. 15AP-496                                                                             5


        {¶ 9} The magistrate's findings of fact in paragraph 25 of her decision, that the
decedent's spouse's motion was supported by the same evidence decedent had originally
submitted in support of his motion for TTD compensation does not bar her action in
mandamus. Res judicata in the context of workers' compensation has been addressed by
this Court concerning post-death matters brought by a surviving spouse and dependents
in Altvater v. Claycraft Co., 71 Ohio App.3d 264, 268 (10th Dist.1991), appeal denied,
62 Ohio St.3d 1408. In Altvater we found that res judicata and collateral estoppel, based
on the outcome of a prior suit for wrongful death benefits, did not bar a second suit for
workers' compensation benefits by the surviving spouse "where there was a lack of
identity of parties or their privies between the present intentional tort action and
plaintiff's prior workers' compensation proceeding." We agreed with the plaintiff
surviving spouse in that case that, "inasmuch as individuals who potentially might
benefit from the [prior] wrongful death action had no interest or control over plaintiff's
claim for workers' compensation death benefits, such individuals should not be
penalized or bound by that action through res judicata or collateral estoppel." Id. We
held:

              Under Ohio law, "* * * the defenses of res judicata or collateral
              estoppel are operative in a second suit only when there is an
              identity of issues and an identity of parties or their privies in
              both the first and second suit. * * *" Whitehead v. Genl. Tel.
              Co. (1969), 20 Ohio St.2d 108, 113, 49 O.O.2d 435, 438, 254
              N.E.2d 10, 13. See, also, Beatrice Foods Co. v. Lindley (1982),
              70 Ohio St.2d 29, 35, 24 O.O.3d 68, 71, 434 N.E.2d 727, 731
              ("* * * In order for either doctrine to apply, there must be an
              identity of parties and issues in the proceedings. * * *").

Id. I would specify in our decision that relator, the surviving spouse, has exercised a
separate right of action under R.C. 4123.60. This action is based on her own interests in
the decedent's workers' compensation benefits that are not barred by res judicata or
collateral estoppel, even if she supports her claim by the same evidence he originally
submitted in support of his claim for TTD compensation that was granted and which was
appealed by his employer.
        {¶ 10} The real issue, then, is did the Commission in reviewing the surviving
spouse's (relator's) separate and independent claim abuse its discretion in considering the
No. 15AP-496                                                                               6


Marion County Court of Common Pleas agreed dismissal as a basis for denying her claim?
The majority deems the dismissal to be some evidence, and we have previously stated:

              In mandamus, the issue before this court is whether the
              commission cited "some evidence" to support its decision and
              provided a brief explanation of its rationale. State ex rel. Noll
              v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245.

State ex rel. Marcum v. Volunteers of Am., 10th Dist. No. 02AP-633, 2003-Ohio-887,
¶ 40.   We can discern from the record that the Commission's appeal of decedent's
favorable award of TTD compensation for the period beginning March 28, 2013, was
nowhere close to being fully litigated. But it was decided on its merits after the decedent's
death by a court of competent jurisdiction, the Marion County Court of Common Pleas, by
an agreed dismissal entry.
        {¶ 11} Under these facts, I would look to the decision of the Seventh District Court
of Appeals in Vincent v. Wheeling Pittsburgh Steel Corp., 7th Dist. No. 99-JE-7 (July 27,
1999), in finding that the dismissal entry was sufficient to constitute "some evidence" in
support of the Commission's decision to deny the surviving spouse her decedent's
benefits. In Vincent, it was the decedent who had pursued an appeal of the denial of
workers' compensation benefits. He died before the appeal could be finally decided. His
surviving spouse sought his benefits on the same basis as he had appealed, and no res
judicata or collateral estoppel were found to bar her claims. In noting that his prior
claims remained unsettled, the Seventh District court stated:

              [G]iven the fact that Mr. Vincent died prior to prosecuting his
              appeal, it cannot be said that the issues raised in his workers'
              compensation claim were actually and directly litigated or
              that a valid, final judgment rendered upon the merits was
              made by a court of competent jurisdiction.

(Emphasis added.) Id. In relator's case, the decedent's claims were decided upon the
merits after his death but before relator filed her motion, even though such claims were
not fully litigated. Some seven months after decedent's death, an agreed judgment entry
dismissing the appeal and finding for the Commission on the appeal's merits was entered
by the Marion County Court of Common Pleas, a court of competent jurisdiction. This
constitutes "some evidence" upon which the Commission could rely in denying relator's
No. 15AP-496                                                                           7


claim for the decedent's workers' compensation benefits from the period of March 28,
2013 until his death. Because the standard of "some evidence" that binds our review does
not quantify "how much" evidence is some evidence, I concur with the majority in its
decision.
       {¶ 12} I would find that relator is not entitled to a writ of mandamus, because we
find some evidence on which the Commission based its decision that being a valid, final
judgment rendered upon the merits of decedent's similar claim that was made by a court
of competent jurisdiction. I would therefore adopt the Magistrate's Decision as to the
findings of fact but reject its conclusions of law, denying the writ of mandamus for the
reasons stated in this concurring decision.
[Cite as State ex rel Sanders v. Indus. Comm., 2016-Ohio-7704.]

                                            APPENDIX
                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel. Nancy E. Sanders,                :

                 Relator,                              :

v.                                                     :               No. 15AP-496

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


                               MAGISTRATE'S DECISION

                                    Rendered on January 29, 2016


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

                 Michael DeWine, Attorney General, and Stephen D. Plymale,
                 for respondent Industrial Commission of Ohio.

                 Kegler, Brown, Hill & Ritter Co., L.P.A., David M. McCarty,
                 Randall W. Mikes, and Katja Garvey, for respondent
                 Wyandot, Inc.

                                            IN MANDAMUS

        {¶ 13} Relator, Nancy Sanders, the spouse of Thomas Sanders ("decedent"), 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
denied her request for accrued temporary total disability ("TTD") compensation following
the death of decedent, and ordering the commission to find that she is entitled to that
compensation.
No. 15AP-496                                                                           9


Findings of Fact:
       {¶ 14} 1. Decedent sustained a work-related injury on April 1, 2012 while working
for respondent, Wyandot, Inc. ("Wyandot"), and his workers' compensation claim was
originally allowed for the following conditions: "LEFT KNEE SPRAIN, LEFT TIBIAL
PLATEAU FRACTURE."
       {¶ 15} 2. Decedent received a period of TTD compensation which was terminated
following the March 28, 2013 hearing before a staff hearing officer ("SHO"), who found
that relator's then-allowed conditions had reached maximum medical improvement
("MMI").
       {¶ 16} 3. On August 7, 2013, decedent filed a C-86 motion with the commission
requesting that his claim be additionally allowed for "LATERAL TIBIAL PLATEAU
CHONDROMALACIA and LEFT KNEE HYPERTROPHIC FAT PAD SYNOVITIS."
       {¶ 17} 4. A hearing was held before a district hearing officer ("DHO") on
September 17, 2013. The DHO denied the request.
       {¶ 18} 5. Decedent appealed and the matter was heard before an SHO on
October 31, 2013. At that time, the SHO determined that decedent's claim should be
additionally allowed for lateral tibial plateau chondromalacia and left knee hypertrophic
fat pad synovitis.
       {¶ 19} 6.     Wyandot's appeal was refused by order of the commission mailed
November 27, 2013.
       {¶ 20} 7. In December 2013, following the allowance of the additional conditions
and the refusal of Wyandot's appeal, decedent filed a C-86 motion requesting the payment
of TTD compensation beginning March 28, 2013.
       {¶ 21} 8. On February 25, 2014, decedent filed an application for the
determination of percentage of permanent partial disability ("PPD") based on all the
allowed conditions and, in a tentative order dated March 7, 2014, the administrator
granted decedent a five percent PPD award.
       {¶ 22} 9. In February 2014, Wyandot timely filed a notice of appeal from the
commission's order additionally allowing decedent's claim in the Marion County Court of
Common Pleas pursuant to R.C. 4123.512.
No. 15AP-496                                                                          10


      {¶ 23} 10. The decedent died on March 6, 2014, at 54 years of age, apparently for
reasons unrelated to the work-related injury.
      {¶ 24} 11. In a letter dated March 7, 2014, counsel for decedent notified the
commission of decedent's death, dismissed without prejudice decedent's request for TTD
compensation, and asked to cancel the hearing scheduled for March 10, 2014.
      {¶ 25} 12. On October 9, 2014, relator, as the surviving spouse and dependent of
decedent, filed a motion pursuant to R.C. 4123.60 for the payment of the accrued TTD
compensation payable to decedent from March 28, 2013 to the date of his death, March 6,
2014. Relator's motion was supported by the same evidence decedent had originally
submitted in support of his motion for TTD compensation.
      {¶ 26} 13. On October 28, 2014, a dismissal entry was filed in the employer's
appeal in the Marion County Common Pleas Court. That entry specifically states:
             [W]ith the Plaintiff's death, neither the Plaintiff nor the
             Administrator of the Bureau of Workers' Compensation can
             establish Plaintiff's entitlement to participate in the Workers'
             Compensation Fund for these medical conditions.

             Accordingly, judgment is hereby rendered in favor of
             Defendant Wyandot, Inc. Plaintiff is found not entitled to
             participate in the Ohio Workers' Compensation Fund, in
             Claim No. 12-814433, for either "lateral tibial plateau
             chondromalacia" or "left knee hypertrophic fad pad synovitis."

      {¶ 27} 14. Relator's motion for accrued compensation was heard before a DHO on
December 16, 2014. The DHO considered whether the relevant moment in time to be
used to determine whether relator was entitled to an award of compensation was the date
of decedent's death (March 6, 2014), or the date of the hearing (December 16, 2014). The
DHO determined that, as of the date of decedent's death (March 6, 2014), the claim was
allowed for the additional conditions; however, as of the date of the hearing
(December 16, 2014), the Marion County Court of Common Pleas had specifically
determined that decedent was not entitled to participate in the workers' compensation
claim for either lateral tibial plateau chondromalacia or left knee hypertrophic fat pad
synovitis. The DHO found the date of the hearing controlling and denied relator's motion.
No. 15AP-496                                                                          11


      {¶ 28} 15. Relator appealed and the matter was heard before an SHO on
February 2, 2015. After determining that relator had timely filed her motion within the
one-year period prescribed by R.C. 4123.60, the SHO likewise relied on the dismissal
entry filed in the Marion County Court of Common Pleas finding that decedent was not
entitled to participate in the workers' compensation fund for the additional conditions.
Specifically, the SHO reasoned:
             The Staff Hearing Officer finds that pursuant to R.C. 4123.60,
             the Staff Hearing Officer finds that the decedent would have
             been lawfully entitled to have applied for an award at the time
             of his death. There is no dispute that the C-86 Motion for
             accrued compensation that was filed on 10/09/2014 was
             timely filed within one year of the date of death as required by
             R.C. 4123.60. The C-84 Request for Temporary Total
             Compensation was signed by the Injured Worker/decedent on
             01/06/2014 and was filed on 10/09/2014. The C-84 was
             supported by the MEDCO-14 Physician's Report of
             Workability report of B. Rodney Comisar, M.D., dated
             02/17/2014. The Staff Hearing Officer notes that R.C.
             4123.60 indicates that the accrued benefits applied for may,
             after satisfactory proof to warrant an award and payment, be
             awarded and paid in an amount not exceeding the
             compensation which the decedent might have received but for
             his death, for the period prior to the date of his death. The
             Staff Hearing Officer notes that the determination as to the
             decedent's entitlement to payment of temporary total
             disability compensation from 03/28/2013 through
             03/06/2014 is being determined at hearing on 02/02/2015.

             The Staff Hearing Officer notes that as of the date of this
             determination, the claim has been specifically disallowed for
             the conditions of the lateral tibial plateau chondromalacia and
             the left knee hypertrophic fat pad synovitis. The Employer
             had originally appealed the allowance of those conditions into
             the Court of Common Pleas. The Employer's Appeal did not
             abate with the death of the injured Worker/decedent. In a
             judgment dated 10/28/2014, a Marion County Court of
             Common Pleas determined that the conditions of the lateral
             tibial plateau chondromalacia and left knee hypertrophic fat
             pad synovitis to be disallowed in this claim. As such, the Staff
             Hearing Officer finds no basis on which to now award the
             payment of temporary total disability compensation as
             accrued compensation for the period of 03/28/213 through
             03/06/2014. To order this compensation paid on today's date
No. 15AP-496                                                                               12


              would be to ignore the fact that compensation is being
              ordered paid for conditions which are no longer allowed
              conditions in this claim. As such, the request for payment of
              accrued temporary total disability compensation is denied.

              The Staff Hearing Officer has reviewed and considered all the
              evidence on file prior to rendering this decision. The Staff
              Hearing Officer relies on R.C. 4123.60, as well as on the
              judgment entry from the Marion Court of Common Pleas, as
              contained in the claim file, in rendering this decision.

(Emphasis sic.)

       {¶ 29} 16. In an order mailed March 12, 2015, relator's appeal was refused.
       {¶ 30} 17. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 31} For the reasons that follow, it is this magistrate's decision that this court
should issue a writ of mandamus.
       {¶ 32} 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).
       {¶ 33} 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
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).
No. 15AP-496                                                                             13


       {¶ 34} At the time of decedent's death, his claim was allowed for the additional
conditions of lateral tibial plateau chondromalacia and left knee hypertrophic fat pad
synovitis. Before he died, decedent filed a motion seeking the payment of TTD
compensation beginning March 28, 2013. But for his death, decedent could have been
paid TTD compensation during the pendency of Wyandot's appeal. If Wyandot would
have been successful on appeal and decedent denied the right to participate for those
conditions, he would have been allowed to keep the compensation. This overpayment
would have been recouped by Wyandot either through reimbursement from the surplus
fund or by deductions from any future compensation paid to decedent.
       {¶ 35} Under R.C. 4123.60, a dependent surviving spouse is lawfully entitled to
apply for her husband's TTD award within one year of his death. R.C. 4123.60 specifically
provides in part:
              If the decedent would have been lawfully entitled to have
              applied for an award at the time of his death the administrator
              may, after satisfactory proof to warrant an award and
              payment, award and pay an amount, not exceeding the
              compensation which the decedent might have received, but
              for his death, for the period prior to the date of his death, to
              such of the dependents of the decedent, or * * * as the
              administrator determines in accordance with the
              circumstances in each such case, but such payments may be
              made only in cases in which application for compensation was
              made in the manner required by this chapter, during the
              lifetime of such injured or disabled person, or within one year
              after the death of such injured or disabled person.

       {¶ 36} It is undisputed that relator's request for TTD compensation was timely
filed. Both hearing officers focused on the dates of their respective hearings (December 16,
2014 and February 2, 2015). At the time of the hearings, the Marion County Court of
Common Pleas had determined that, due to decedent's death and his then inability to
prove anew that he was entitled to participate in the workers' compensation fund for
those additional conditions, decedent was not entitled to participate for either of those
two conditions. As such, both hearing officers concluded that relator's timely request for
TTD compensation was based on conditions for which the decedent's claim was not
allowed and denied her request for TTD compensation solely on those grounds.
No. 15AP-496                                                                           14


       {¶ 37} The magistrate agrees with the parties' acknowledgment that there is no
case law directly on point and that R.C. 4123.60 specifically provides that the
administrator may award and pay to a dependent the compensation which would have
otherwise been payable to the decedent. Nevertheless, the magistrate finds that the
commission's reason for denying relator's request for compensation does constitute an
abuse of discretion.
       {¶ 38} As noted earlier in this decision, once a claimant's claim is allowed for
certain conditions, an employer may still challenge in the common pleas court the
claimant's right to participate in the workers' compensation fund for those allowed
conditions. While the claimant has the burden of proving anew their right to participate
for those allowed conditions, the claimant may apply for and be awarded benefits
including compensation. Stated differently, at the time the employer files a notice of
appeal, the claimant's claim is, on the one hand allowed for those conditions and, on the
other hand, not yet allowed for those conditions. Because decedent was entitled to apply
for TTD compensation at the time of his death, his surviving spouse, relator herein, was
likewise entitled to apply for TTD compensation after he died.
       {¶ 39} Relator argues that by choosing to focus on the date of the hearings instead
of decedent's death, the commission essentially eviscerated the intent of R.C. 4123.60. At
the time of his death, decedent's claim was additionally allowed for these conditions and
there is no way to know whether or not a jury would have agreed or concluded otherwise.
In ruling the way it did, the Marion County Court of Common Pleas determined the
outcome by stating that decedent was not entitled to participate for those conditions
without considering the evidence. The commission determined that it was bound to apply
the court's conclusion as it related to relator's claim under R.C. 4123.60.
       {¶ 40} R.C. 4123.95 mandates that the workers' compensation statutes be liberally
construed in favor of employees and the dependents of deceased employees. Where is the
liberal construction here? If only decedent would have requested TTD compensation at
the same time he sought the allowance of additional conditions or relator filed her R.C.
4123.60 claim immediately after her husband died, compensation would likely have been
awarded. Unfortunately, relator waited and, although her motion was timely, the Marion
No. 15AP-496                                                                            15


County Court of Common Pleas filed its dismissal entry before a hearing was held on her
motion.
       {¶ 41} There is no fairness here. Although R.C. 4123.60 provides that an award
may be made and the commission might find either that the medical evidence does not
support the award or find that relator should not receive the entire award, it was an abuse
of discretion for the commission to deny her compensation for the reason it did.
       {¶ 42} Based on the foregoing, it is this magistrate's decision that the commission
did abuse its discretion when it refused to consider relator's application under R.C.
4123.60 to receive the TTD compensation to which decedent may have been entitled at
the time of his death based solely on the fact that the Marion County Court of Common
Pleas determined that decedent's death was equivalent to finding that he was not entitled
to participate for those conditions.     This court should issue a writ of mandamus
remanding this matter to the commission for it to determine the merits of relator's
request for TTD compensation and to determine whether or not any such compensation
will be paid to her.

                                              /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).
