State ex rel. Coltrane v. Indus. Comm'n of Ohio

Decision Date28 September 2021
Docket Number20AP-338
PartiesState ex rel. Robert Coltrane, Relator, v. Industrial Commission of Ohio et al., Respondents.
CourtOhio Court of Appeals

IN MANDAMUS

On brief:

Becker & Cade, and Dennis A. Becker, for relator.

Dave Yost, Attorney General, and Cindy Albrecht, for respondent Industrial Commission of Ohio.

Sybert, Rhoad, Lackey & Swisher, LLC, Brant K. Rhoad, and Matthew S. Goff, for respondent Sorenson Communications, LLC.

DECISION

JAMISON, J.

{¶ 1} In this original action, relator Robert Coltrane seeks a writ of mandamus compelling respondent, the Industrial Commission of Ohio, to vacate its order finding that relator is not entitled to working wage loss compensation, and enter an order granting such compensation.

{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision that included findings of fact and conclusions of law, then recommended that this court deny the requested writ of mandamus (attached as appendix). Relator did not file an objection to the magistrate's decision.

{¶ 3} Pursuant to Civ.R. 53(D)(4), the court conducted a full review of the magistrate's decision. The court finds that there is no error of law or other defect upon the face of the decision. Therefore, the court adopts the magistrate's decision as its own, including the findings of fact and conclusions of law contained therein, and denies the requested writ of mandamus.

Writ of mandamus denied.

SADLER and MENTEL, JJ., concur.

APPENDIX

Rendered on April 29, 2021

IN MANDAMUS

MAGISTRATE'S DECISION

MARTIN L. DAVIS MAGISTRATE JUDGE

{¶ 4} Relator, Robert Coltrane, seeks a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order finding that relator is not entitled to working wage loss compensation ("WWLC"), and enter an order granting such compensation.

Findings of Fact:

{¶ 5} 1. Relator, a professional sign-language interpreter, sustained an injury classified as an occupational disease arising in the course and scope of his employment with Sorenson Communications, LLC.

{¶ 6} 2. Relator's claim was allowed with a date of injury of November 2, 2016 for stenosis, tenosynovitis of right ring finger.

{¶ 7} 3. At the time of injury, relator performed part-time work as an interpreter for Sorenson Communications and also worked full time with his own company, Deaf Choice, Inc.

{¶ 8} 4. The Ohio Bureau of Workers' Compensation ("BWC") allowed the condition by order mailed November 9, 2016 designating Sorenson Communications as the responsible employer. Sorenson Communications filed an appeal. (Stip. at 10.)

{¶ 9} 5. Relator's treating physician Edward A. Marcheschi, M.D., completed a series of BWC Medco-14 ("Physician's Report of Work Ability") forms indicating that relator was unable to perform his prior job and should be off work entirely. (Stip. at 18, 22, 28, 34.)

{¶ 10} 6. Successive district hearing officer ("DHO") and staff hearing officer ("SHO") orders on May 10 and August 24, 2017 overruled Sorenson Communications' appeal and allowed the claim as granted by BWC. (Stip. at 40, 43.)

{¶ 11} 7. Relator was referred to Mark Yuhas, M.D., for evaluation and possible surgery. (Stip. at 58-59.) Dr. Yuhas performed surgery on November 14, 2017. (Stip. at 91.) Dr. Yuhas released relator to perform full job duties effective December 18, 2017. (Stip. at 60, 62.)

{¶ 12} 8. Relator applied for WWLC on June 22, 2018, requesting compensation paid from November 1, 2016 through December 18, 2017. (Stip. at 73.) With his application, relator included an affidavit indicating that his medical restrictions prevented his return to work for Sorenson Communications, while he continued to perform "ownership duties" for his own company, Deaf Choice:

This Affidavit is being given to provide information in support of the Application for Wage Loss Benefits for the period of November 1, 2016 through December 5, 2017.
At the time of injury, November 1, 2016, I was employed working two jobs as set forth in the previous Wage Affidavit as an owner operator of Deaf Choice and as an employee of Sorenson Communications.
At the time of injury, I was no longer permitted to do signing activities and thus performed no services for Sorenson Communications during the period of November 1, 2016 to December 5, 2017; at which time I was released to perform full duty activities, i.e. with no further medical restrictions.
During the period of November 1, 2016 through December 5, 2017 I continued to perform ownership duties with Deaf Choice but performed no signing interpretive services for Deaf Choice.
Because of the restrictions, my earnings were reduced as reflected in the attached statement from Deaf Choice, indicating my earnings for the period in question.

(Stip. at 75.)

{¶ 13} 9. Dr. Marcheschi submitted a Medco-14 dated November 21, 2017, again certifying relator as unable to return to work.

{¶ 14} 10. Relator submitted his pay records from Deaf Choice and Sorenson Communications for 2016 and 2017, including W2s from both companies. (Stip. at 77, 80-90.) Relator reported $45, 405.21 in wages in 2016 and $38, 833.17 in wages in 2017 from Deaf Choice. (Stip. at 77-78, 84.) Relator reported $12, 108.51 in wages from Sorenson Communications in 2016 and $738.68 in wages from Sorenson Communications in 2017. (Stip. at 87, 89.)

{¶ 15} 11. A DHO issued an order on November 16, 2018, denying the requested WWLC from November 1, 2016 through December 18, 2017. (Stip. at 96.)

{¶ 16} 12. On further appeal, an SHO heard the matter on October 10, 2019 and issued an order on October 16, 2019 upholding the DHO's order as follows:

It is the finding of the Hearing Officer that the order of the District Hearing Officer, issued 11/16/2018, is affirmed with additional reasoning.
It is the order of the Staff Hearing Officer that the Injured Worker's C-140 initial Application for Wage Loss Compensation, filed 06/22/2018 be denied.
The Injured Worker's C-140, filed 06/22/2018 requests payment of working wage loss compensation for the period of 11/02/2016 through 12/18/2017.
The Hearing Officer finds that the Injured Worker has failed to meet his burden of proof of demonstrating that he has complied with the wage loss rules as set forth in Ohio Adm.Code 4125-1-01. Therefore, the Hearing Officer denies the Injured Worker's request for payment of working wage loss compensation.
The Hearing Officer finds that prior to the Injured Worker contracting an occupational disease in this claim, the Injured Worker worked two jobs, one as an owner/operator of Deaf Choice and a second job with the employer of record, Sorenson Communications, as a sign language interpreter. The Injured Worker's employment as the owner/operator of Death [sic] Choice required the Injured Worker to work as a sign language interpreter as well as engage in administrative functions including training and evaluating interpreters and completing paperwork. Following the occupational disease in this claim, the Injured Worker testified that he continued to work as an owner/operator of Death [sic] Choice but was unable to continue as a sign language interpreter. Further, following the occupational disease, the Injured Worker was unable to return to his employment with the employer of record Sorenson Communications as a sign language interpreter. The Injured Worker's inability to return to his position of employment as a sign language interpreter with Sorenson Communications was based upon the medical documents from Edward Marcheschi, M.D. dated 11/02/2016 and 11/21/2017.
The Injured Worker is requesting payment of working wage loss compensation based upon his inability to return to his position of employment as a sign language interpreter with Sorenson Communications.
** *
In the present case, the Hearing Officer finds that there is no evidence that the Injured Worker engaged in a good faith job search for suitable employment. The Hearing Officer finds that there is no record of a job search or any evidence that the Injured Worker attempted to find employment that would eliminate his loss in wages.
** *
The Hearing Officer finds that the Injured Worker has failed to meet his burden of proof of demonstrating that he has complied with the wage loss rules as set forth in Ohio Adm.Code 4125-1-01 as he has failed to engage in a good faith effort to search for suitable employment which is required of individuals seeking working wage loss compensation. Therefore, the Hearing Officer denies the Injured Worker's request for payment of working wage loss compensation from 11/02/2016 through 12/18/2017.

(Stip. at 100.)

{¶ 17} 13. The commission refused relator's appeal from the SHO's order. (Stip. at 104.)

{¶ 18} 14. Relator filed his complaint for writ of mandamus on July 2, 2020.

Discussion and Conclusions of Law:

{¶ 19} 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 (198...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT