[Cite as State ex rel. McBroom v. Indus. Comm., 2018-Ohio-307.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


The State ex rel. Gracie McBroom,                     :

                Relator,                              :

v.                                                    :              No. 17AP-168

Industrial Commission of Ohio,                        :           (REGULAR CALENDAR)

                Respondent.                           :



                              MEMORANDUM DECISION

                                   Rendered on January 25, 2018


                Gracie McBroom, pro se.

                Michael DeWine, Attorney General, and Andrew J. Alatis,
                for respondent.


                                     IN MANDAMUS
                           ON MOTION FOR SUMMARY JUDGMENT

KLATT, J.

        {¶ 1} Relator, Gracie McBroom, sister of the deceased workers' compensation
claimant, Joseph W. Allen, commenced this original action in mandamus seeking an
order compelling respondent, Industrial Commission of Ohio ("commission"), to hold a
hearing and determine whether she is entitled to death benefits arising from the
claimant's workers' compensation claim. Thereafter, relator filed a motion for summary
judgment. The commission filed a response to relator's motion, which relator seeks to
have stricken.
        {¶ 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 issued a decision, including findings
No. 17AP-168                                                                               2

of fact and conclusions of law, which is appended hereto. The magistrate found that
summary judgment should be granted in relator's favor. Essentially, the magistrate
determined that relator and the commission are in agreement that relator did not receive
the hearing to which she is entitled. In addition, the parties agree that relator is entitled
to a hearing on her request for death benefits.          Accordingly, the magistrate has
recommended that we grant relator's motion for summary judgment. The magistrate has
also recommended that we deny relator's motion to strike the commission's response to
her motion for summary judgment.
       {¶ 3} No party has filed objections to the magistrate's decision.
       {¶ 4} Finding no error of law or other defect on the face of the magistrate's
decision, we adopt the decision as our own, including the findings of fact and conclusions
of law contained therein. In accordance with the magistrate's decision, we deny relator's
motion to strike but grant her motion for summary judgment and issue a writ of
mandamus ordering the commission to vacate those orders which erroneously refused to
consider relator's request for death benefits and to hold a hearing to adjudicate her
entitlement to death benefits.
                                                                 Motion to strike denied;
                                                  motion for summary judgment granted;
                                                              writ of mandamus granted.

                                 TYACK and BRUNNER, JJ., concur.
No. 17AP-168                                                                               3

                                       APPENDIX

                           IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Gracie McBroom,             :

               Relator,                       :

v.                                            :                    No. 17AP-168

Industrial Commission of Ohio,                :               (REGULAR CALENDAR)

               Respondent.                    :



                           MAGISTRATE'S DECISION

                               Rendered on August 29, 2017



               Gracie McBroom, pro se.

               Michael DeWine, Attorney General, and Andrew J. Alatis,
               for respondent.


                                    IN MANDAMUS
                          ON MOTION FOR SUMMARY JUDGMENT

       {¶ 5} Relator, Gracie McBroom, sister of the deceased workers' compensation
claimant, Joseph W. Allen ("Allen"), filed this original action requesting this court issue a
writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"),
to hold a hearing and determine whether she is entitled to death benefits arising from
Allen's workers' compensation claim.
Findings of Fact:
       {¶ 6} 1. On or about March 13, 1973 Allen sustained a work-related injury for
which he was awarded compensation benefits.
       {¶ 7} 2. At some point in time Allen died.
No. 17AP-168                                                                                4

       {¶ 8} 3. Relator filed a motion seeking death benefits which may have arisen
from Allen's workers' compensation claim.
       {¶ 9} 4. Apparently, a hearing was held at which time a district hearing officer
denied relator a death allowance.
       {¶ 10} 5. Thereafter, relator asserted that she did not receive a copy of the order
and, as a result, did not file an appeal.
       {¶ 11} 6. It is unclear exactly what transpired thereafter; however, it appears that
although the commission determined that relator did not receive notice, no hearing was
ever held on her request for a death allowance.
       {¶ 12} 7. On March 6, 2017, relator filed this mandamus action asking this court to
order the commission to find that she is entitled to death benefits or, in the alternative, to
order the commission to hold a hearing on the matter.
       {¶ 13} 8. On May 23, 2017, the magistrate held a conference with the parties to
discuss their positions and attempt to resolve the case.
       {¶ 14} 9. During the course of that conference, the parties ultimately agreed that
relator should have a hearing on her motion. The parties agreed to submit a joint
stipulation to return the matter to the commission to hold a hearing to determine whether
relator is entitled to death benefits.
       {¶ 15} 10. Pursuant to those discussions, the assistant attorney general drafted a
stipulation of dismissal, stating:
               In accordance with Civ.R. 41(A)(1)(b), the parties hereby
               stipulate that this action is dismissed with prejudice after
               advising, and to allow, pro se movant, Gracie McBroom, to
               consider retaining legal counsel in this matter. Further, by
               agreement of the parties, the Industrial Commission of Ohio
               will issue the following order in Claim Number 73-34234:

               It is hereby ordered that the Staff Hearing Officer order,
               issued 12/13/2016, findings mailed 12/16/2016, and the
               order of the Ohio Industrial Commission, findings mailed
               02/25/2017, which adjudicated the issue of death allowance,
               are vacated.

               Previously, by order mailed on 02/02/2017, a Staff Hearing
               Officer vacated the District Hearing Officer order, issued
               03/24/2016, findings mailed 03/30/2016, which denied Ms.
No. 17AP-168                                                                               5

               McBroom's request for death benefits. In that order, the Staff
               Hearing Officer granted Ms. McBroom relief pursuant to
               R.C. 4123.522 because the Ohio Industrial Commission
               failed to provide Ms. McBroom notice of the 03/24/2016
               District Hearing Officer hearing. However, the Staff Hearing
               Officer did not vacate the orders noted above, which were
               issued in response to Ms. McBroom's appeals from the
               District Hearing Officer and Staff Hearing Officer orders
               denying death benefits. To adjudicate the issue of death
               allowance properly, the Industrial Commission now vacates
               the Staff Hearing Officer order, issued 12/13/2016, findings
               mailed 12/16/2016, and the order of the Ohio Industrial
               Commission, findings mailed 02/25/2017.

               It is further ordered that a new hearing before a District
               Hearing Officer be scheduled to adjudicate Ms. McBroom's
               application for death allowance, filed 12/10/2015. The
               hearing officer is directed to adjudicate whether Decedent's
               death was causally related to the allowed conditions in this
               claim and whether Ms. McBroom was dependent on
               Decedent at the time of his death.

               The District Hearing Officer's order will be subject to the
               usual rights of administrative appeal as provided in R.C.
               4123.511.

       {¶ 16} 11. Although the stipulation of dismissal specifically provides that the
commission will hold a hearing to adjudicate whether Allen's death was causally related to
the allowed conditions in his claim and whether relator was dependent on Allen at the
time of his death, relator refused to sign that document.
       {¶ 17} 12. Relator telephoned the magistrate to explain her refusal to sign the
stipulation. Relator indicated that she objected to the specificity contained within that
stipulation. Specifically, relator objected to the identification of all the orders which the
commission should be ordered to vacate before holding the hearing. In relator's opinion,
the commission should not have to be told what to do in that much detail.
       {¶ 18} 13. Instead of attempting to prepare a new stipulation of dismissal, relator
filed a motion for judgment on the pleadings or, in the alternative, motion for summary
judgment on June 28, 2017.
       {¶ 19} 14. The magistrate issued a notice of summary judgment which was sent to
the parties.
No. 17AP-168                                                                                6

       {¶ 20} 15. Because the assistant attorney general had been out of town on vacation,
he contacted relator and asked for permission to seek an extension of time to respond to
her motion. Relator verbally agreed to the extension.
       {¶ 21} 16. Respondent requested and was granted an extension of time to reply to
relator's motion.
       {¶ 22} 17. On July 17, 2017, relator filed a letter with the magistrate objecting to
respondent's request for an extension of time to reply to her motion. Although relator
acknowledges that she agreed respondent could have an extension of time and that he was
not asking for more time than they had discussed, she asserted that counsel never
properly served her with that request for an extension. Based on her argument that
respondent's request for an extension was invalid, it appears that relator wants this court
to strike respondent's response to her motion.
       {¶ 23} 18. On July 19, 2017, counsel for the commission filed its response again
acknowledging that it is not opposed to the relief requested, but asserting that relator's
motion is vague and unclear. Specifically, in arguing that relator's motion should be
denied, respondent stated:
               As the parties discussed at the Court's pre-trial conference
               on May 23, 2017, the commission has recently expressed that
               it is not opposed to the relief requested in McBroom's initial
               complaint inasmuch as the commission is willing to vacate
               the necessary orders denying McBroom a hearing and to
               conduct a hearing to determine McBroom's entitlement to
               death benefits. However, McBroom's recent motions are
               vague and unclear; and they lack the factual and legal
               substance necessary for her to prevail on same.

       {¶ 24} 19. The matter is currently before the magistrate on relator's purported
motion to strike respondent's response to her motion for summary judgment and relator's
motion for summary judgment.
Conclusions of Law:
       {¶ 25} For the reasons that follow, and in accordance with the parties' agreement
as to the procedural facts and relief warranted, it is this magistrate's decision that this
court should grant relator summary judgment.
       {¶ 26} 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
No. 17AP-168                                                                                7

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).
       {¶ 27} A motion for summary judgment requires the moving party to set forth the
legal and factual basis supporting the motion. To do so, the moving party must identify
portions of the record which demonstrate the absence of a genuine issue of material fact.
Dresher v. Burt, 75 Ohio St.3d 280 (1996). Accordingly, any party moving for summary
judgment must satisfy a three-prong inquiry showing: (1) that there is no genuine issue as
to any material facts; (2) that the parties are entitled to judgment as a matter of law; and
(3) that reasonable minds can come to but one conclusion, which conclusion is adverse to
the party against whom the motion for summary judgment is made. Harless v. Willis
Day Warehousing Co., 54 Ohio St.2d 64 (1978).
       {¶ 28} As noted in the findings of fact, the parties agree that relator did not receive
the hearing to which she was entitled. During the conference with the magistrate, the
parties specifically agreed that they would enter into a stipulation of dismissal whereby
the commission's prior orders would have no force and effect and a hearing would be held
regarding relator's request for death benefits. Although the assistant attorney general
drafted a stipulation of dismissal which did, in fact, provide the result agreed to by the
parties, relator objected to some of the language in that order and, as a result, refused to
sign it.   However, the fact remains that there are no material issues of fact to be
determined in this mandamus action and the parties agree that relator should have the
hearing which she requests.
       {¶ 29} Based on the foregoing, it is this magistrate's decision that this court should
deny relator's purported motion to strike respondent's response and grant summary
judgment in favor of relator and issue a writ of mandamus ordering the commission to
vacate those orders which erroneously refused to consider relator's request for death
benefits and hold a hearing to adjudicate her entitlement to death benefits.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA
No. 17AP-168                                                                       8

                               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).
