State ex rel. Dailey v. Indus. Comm'n

Decision Date25 June 2019
Docket NumberNo. 17AP-675,17AP-675
Citation2019 Ohio 2520
PartiesThe State ex rel. Kevin A. Dailey, Relator, v. Industrial Commission of Ohio et al., Respondents.
CourtOhio Court of Appeals



On brief: Knisley Law Offices, and Kurt A. Knisley, for relator.

On brief: Dave Yost, Attorney General, and Natalie J. Tackett, for respondent Industrial Commission of Ohio.

On brief: Dave Yost, Attorney General, and Michael J. Roche, for respondent Hocking Technical College.



{¶ 1} For all the procedural wrangling in this case, the matter boils down to something pretty simple. We're not going to grant a writ of mandamus ordering the Industrial Commission of Ohio to hear and rule on something that it already has decided on its own, and we're not going to grant a writ of mandamus against the commission requiring it to rule one way when its decision going the other could be—and in fact is—on direct appeal to a Common Pleas Court of competent jurisdiction.

{¶ 2} The matter has taken some twists and turns, but a rough summary of where things now stand essentially disposes of the requested extraordinary writ. Relator Kevin Dailey has sought to be allowed to participate in the workers' compensation fund for an injury claim of "myocardial infarction" and for "coronary artery disease." The commission has allowed his claim for the myocardial infarction. The commission has denied his request for the "Additional Allowance" of coronary artery disease. See, e.g., Ev. Stip. 37 (Staff Hearing Officer Order mailed June 7, 2016), 38 (commission refuses administrative appeal, June 28, 2016). Mr. Dailey has appealed that condition denial to the Athens County Court of Common Pleas, and has filed a complaint and jury demand there asking that "he be permitted to participate in the benefits of the State Insurance Fund for the additional condition of coronary artery disease * * *." Ev. Stip. 46 ("Re-Filed Complaint and Jury Demand time-stamped 1/18/2017"); Ev. Stip. 39 ("Notice of Appeal Under Section 4123.512," reciting that appeal is from commission's 06/28/2016 refusal of his administrative appeal from the Staff Hearing Officer's denial of his motion to have coronary artery disease as an additional allowed condition).

{¶ 3} We provide a truncated version of the procedural history of these claims below. There should be no suspense, though, as to our role here: Because the Commission has ruled on the coronary artery disease claim, and because Mr. Dailey has (and is pursuing) an adequate remedy at law under R.C. 4123.512 by which to address his disagreement with that ruling, we will dismiss the petition for the requested writ.

{¶ 4} On September 22, 2017, Kevin A. Dailey filed his petition asking this court for a writ of mandamus directing the commission either to reinstate a Staff Hearing Officer's order from 2014 allowing his worker's compensation claim for coronary artery disease, or to hold a new hearing on that claim in light of the commission's "duty to consider the merits of Relator's request to participate in the State Fund for coronary artery disease." Petition at ¶ 25 and prayer. On February 14, 2019, the magistrate issued her decision recommending that we deny the writ. Mr. Dailey has filed objections to the magistrate's decision, and we consider those objections after an "independent review" pursuant to Civil Rule 53(D)(4)(d).

{¶ 5} Mr. Dailey suffered a cardiac event while lifting pallets during his employment as a firefighting instructor at Hocking Technical College. An April 2, 2014 Staff Hearing Officer's order allowed Mr. Dailey's occupational claim for coronary artery disease and myocardial infarction. Hocking Technical College filed a Request for Reconsideration and, on August 13, 2014, the commission vacated the April 2, 2014 order after concluding that it contained clear mistakes of law. The commission's order did allow the claim for myocardial infarction as an injury claim, but did not rule directly on coronary artery disease as an allowed or disallowed claim.

{¶ 6} In due course, Mr. Dailey filed a motion requesting that the commission "amend his claim, either by direct causation or substantial aggravation of a pre-existing condition, to include * * * CORONARY ARTERY DISEASE," based on a physician's report attached to the motion. Stip. Ev. 32 (Dec. 3, 2015 Mot.). A District Hearing Officer denied the motion. Stip. Ev. 34 (Feb. 24, 2016 Order). Mr. Dailey appealed, and a Staff Hearing Officer issued an order again denying the motion, noting that Mr. Dailey's myocardial infarction claim had been "specifically allowed as an injury claim" and finding that "additionally allowing the claim for the condition Coronary Artery Disease is inconsistent with a claim recognized for an injury." Stip. Ev. 37 (May 31, 2016 Order). The commission refused Mr. Dailey's internal appeal of that order and informed him of his right to appeal under R.C. 4123.512 to a court of common pleas. Stip. Ev. 38 (June 24, 2016 Order).

{¶ 7} On August 26, 2016, Mr. Dailey filed a complaint in the Athens County Court of Common Pleas appealing the commission's June 24, 2016 order. He later voluntarily dismissed the complaint under Civ.R. 41(A), but the commission found nonetheless that it lacked jurisdiction over his subsequent request for reconsideration of the denial of his claim for coronary artery disease because jurisdiction over that issue remained with the trial court. Stip. Ev. 43 (commission order of November 17, 2016). Mr. Dailey then refiled his common pleas case on January 18, 2017. Stip. Ev. 46 ("Re-Filed Complaint and Jury Demand"). Some eight months later, he filed his petition seeking a writ of mandamus from this court, and in June of 2018 he advised the magistrate here that the "Athens County Court of Common Pleas has stayed proceedings pending the outcome of the present case." Relator's Brief at 9.

{¶ 8} Mr. Dailey objects to what he views as "inappropriate" fact-finding by the Magistrate. He further objects to the magistrate's conclusions: that the commission properly exercised jurisdiction over and ruled appropriately in vacating the Staff Hearing Officer's August 13, 2014 order that had allowed the claim of coronary artery disease in addition to the myocardial infarction injury claim; that the commission was not required to state expressly in 2014 that it was denying his claim for coronary artery disease; and that Mr. Dailey was required to appeal the commission's August 13, 2014 order to a court of common pleas under R.C. 4123.512. Feb. 22, 2019 Relator's Objection to Magistrate's Decision at 2, 5-10.

{¶ 9} A party seeking a writ of mandamus "must establish a clear legal right to the relief requested, a clear legal duty on the part of the commission to provide the relief, and the lack of an adequate remedy in the ordinary course of the law." State ex rel. Manpower of Dayton, Inc. v. Indus. Comm. of Ohio, 147 Ohio St.3d 360, 2016-Ohio-7741, ¶ 9 (citation omitted). While the magistrate's decision focused on the first two requirements, the lack of an adequate remedy at law "is a threshold question," as it "is a necessary prerequisite for relief in mandamus." State ex rel. Alhamarshah v. Indus. Comm. of Ohio, 142 Ohio St.3d 524, 2015-Ohio-1357, ¶ 11, citing State ex rel. Consolidation Coal. Co. v. Indus. Comm. of Ohio, 18 Ohio St.3d 281, 284 (1985) (citation omitted). For the following reasons, we conclude there is an adequate remedy at law for Mr. Dailey's claim, and we must therefore deny issuance of the writ.

{¶ 10} R.C. 4123.512(A) provides a claimant with the right to "appeal an order of the industrial commission made under division (E) of section 4123.511 of the Revised Code in any injury or occupational disease case, other than a decision as to the extent of disability to the court of common pleas of the county" where the injury occurred or the claimant is employed. The same right of appeal extends to the order of a Staff Hearing Officer that the commission declines to review. Id. In such an appeal, "[t]he court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in the fund upon the evidence adduced at the hearing of the action." R.C. 4123.512(D) (emphasis added).

{¶ 11} In his petition, Mr. Dailey alleges that the commission abused its discretion by "neglecting to consider the merits of coronary artery disease" in its August 13, 2014 order as a basis for his claim. Petition and Complaint for Writ of Mandamus at ¶ 24. He emphasizes his position that the commission must "consider the merits of [his] request to participate in the State Fund for coronary artery disease." Id. at ¶ 25. But notwithstanding what he sees as the deficiencies of the 2014 outcome, he does also acknowledge that "the Staff Hearing Officer, in an order dated 6/1/2016, affirmed the District Hearing Officer's decision denying the additional allowance of coronary artery disease * * *," and that the commission then "refused [his] appeal [to the commission] and the additional allowance of coronary artery disease remains disallowed." Id. at ¶ 14, 15.

{¶ 12} It is precisely because the commission has already determined the (dis)allowance of his coronary artery disease claim that Mr. Dailey has been able to appeal to the common pleas court. R.C. 4123.512(D) provides Mr. Dailey the opportunity to appeal and have a judge or a jury determine his right to participate in the fund for coronary artery disease; that course is available to him, and what's more, he has taken it.

{¶ 13} Mr. Dailey's petition suggests that his focus is on commission (non)decisions of 2014, but the commission made determinations after that. He apparently is concerned that his pending R.C. 4123.512 appeal may be dismissed on grounds of res judicata because he did not so appeal the August 13, 2014 order allowing...

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