The opinion
[Cite as State ex rel. Dattilio v. Indus. Comm., 2025-Ohio-182.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jamie Dattilio, :
Relator, :
v.
: No. 22AP-421
Industrial Commission of Ohio et al.,
: (REGULAR CALENDAR)
Respondents.
:
D E C I S I O N
Rendered on January 23, 2025
On brief: Patrick J. Moro and Joseph A. Moro, for relator.
On brief: Dave Yost, Attorney General, and Denise A. Gary,
for respondent Industrial Commission of Ohio.
On brief: ICE Miller LLP, Jennifer M. McDaniel, Marisa
Bartlette Willis, and Amy E. Flowers, for respondent Big Lots,
Inc.
IN MANDAMUS
MENTEL, J.
{¶ 1} Relator, Jamie Dattilio, filed a complaint in mandamus on July 13, 2022,
alleging that respondent, the Industrial Commission of Ohio, abused its discretion when it
determined that she had engaged in fraud by engaging in work while receiving temporary
total disability payments and ordered repayment under R.C. 4123.511(K).
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate. The magistrate recommends that we deny relator’s
request for a writ of mandamus after concluding that some evidence in the record supports
respondent’s finding of fraud.
No. 22AP-421 2
{¶ 3} Relator filed no objection to the magistrate’s decision. “If no timely
objections are filed, the court may adopt a magistrate’s decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate’s decision.”
Civ.R. 53(D)(4)(c). Our review of the magistrate’s decision reveals no error of law or other
evident defect. See, e.g., State ex rel. Alleyne v. Indus. Comm., 10th Dist. No. 03AP-811,
2004-Ohio-4223 (adopting the magistrate’s decision where no objections filed). We agree
with the magistrate’s conclusion that some evidence supported the finding of fraud.
Accordingly, we adopt the decision of the magistrate in full and deny relator’s request for
a writ of mandamus.
Writ of mandamus denied.
JAMISON, P.J. and LUPER SCHUSTER, J., concur.
_________________
No. 22AP-421 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jamie Dattilio, :
Relator, :
v. : No. 22AP-421
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE’S DECISION
Rendered on February 29, 2024
Patrick J. Moro and Joseph A. Moro, for relator.
Dave Yost, Attorney General, and Denise A. Gary, for
respondent Industrial Commission of Ohio.
ICE Miller LLP, Jennifer M. McDaniel, Marisa Bartlette
Willis, and Amy E. Flowers, for respondent Big Lots, Inc.
IN MANDAMUS
{¶ 4} Relator, Jamie Dattilio (“claimant”), has filed this original action requesting
that this court issue a writ of mandamus ordering respondent, Industrial Commission of
Ohio (“commission”), to vacate its June 2, 2022, order that found she was not entitled to
temporary total disability (“TTD”) compensation from May 31, 2020, through
December 20, 2020, and ordered an overpayment of TTD compensation for this period
based on a finding of fraud.
Findings of Fact:
No. 22AP-421 4
{¶ 5} 1. On August 5, 2019, claimant sustained an injury in the course of and
arising out of her employment with respondent Big Lots, Inc. (“employer”). Her workers’
compensation claim was allowed for the following conditions: strain of muscle; fascia and
tendon of lower back; and L5-S1 disc protrusion.
{¶ 6} 2. Claimant was granted salary continuation and then TTD compensation
from August 11, 2019, through December 20, 2020, when her physician of record found
she had reached maximum medical improvement.
{¶ 7} 3. Claimant signed a July 2, 2020, C-84 form and checked “no” when asked
whether she was working in any capacity, including full or part-time, self-employment,
income-producing hobbies, and commission work or unpaid activities that are not
minimal and directly earn income for someone else.
{¶ 8} 4. On June 24, 2020, while receiving TTD compensation, claimant sent an
email to the employer’s compensation manager. The email indicated an email address for
claimant associated with California Palms Addiction and Recovery Campus (“California
Palms”) and designated her as a chemical dependency counselor assistant. The email also
provided the address for California Palms, a 1-800 number and direct phone number for
claimant, a fax number, and claimant’s California Palms email address. This email
prompted an investigation into claimant’s work activities.
{¶ 9} 5. Claimant testified that California Palms is an addiction rehabilitation
center owned by her then boyfriend, Sebastian Rucci, and she lived at the center with
Rucci.
{¶ 10} 6. During the investigation conducted by Special Agent Perry Phiel for the
Ohio Bureau of Workers’ Compensation (“BWC”), Ann Brandt, the clinical director for
California Palms from December 2019 to April 2020, stated in a March 23, 2021,
interview and statement that claimant did a little bit of everything, including scheduling,
transportation, finance, case management, billing, and some group-counseling work. She
said that claimant was an employee at California Palms, worked every day, lived at the
facility, and had access to all of California Palms’ computers, books, safe, and credit cards.
Special Agent Phiel was informed in April 2021 by the Ohio Pharmacy Board that
California Palms and Rucci were being investigated for insurance and Medicare fraud.
No. 22AP-421 5
{¶ 11} 7. Special Agent Phiel interviewed Kelly Gargas, a nurse at California Palms
from May 2020 through September 2020, who stated that claimant worked as
administrative staff, did new-hire orientation, provided her with her direct deposit
authorization, did bookkeeping and payroll, worked as the manager while Rucci was sick,
worked as a counselor prior to Gargas’s hire, worked on most days that Gargas worked
(Monday through Friday), and was the person who terminated her employment there.
{¶ 12} 8. Special Agent Phiel testified at the commission hearings that, in addition
to the aforementioned allegations made by Gargas and Brandt, the investigation revealed
that claimant began working for California Palms on January 1, 2020; worked as a
receptionist at times; wrote checks for California Palms’ checking account to vendors and
for payroll; and collected tax documents and time sheets from employees. Special Agent
Phiel also testified that claimant performed income-generating functions at California
Palms, including client billing, new-client intake, and new-client insurance verification.
She also worked as a dependency counselor, led group counseling sessions, and lived and
worked at the facility. He also testified that relator was paid $2,000 via an October 7,
2020, check drawn from California Palms’ bank account, and she signed 58 checks on
behalf of California Palms from August 11, 2020, through October 30, 202o, which were
for payments to medical providers and vendors and wages to employees. She also lived at
the facility rent free.
{¶ 13} 9. On November 16, 2021, the employer filed a C-86 motion requesting the
commission find that claimant committed fraud and declare an overpayment of TTD
compensation for the period beginning January 1, 2020. The employer’s claim of fraud
was based upon the allegation that claimant was engaging in work for California Palms
while receiving TTD compensation.
{¶ 14} 10. In a January 28, 2022, affidavit, Sebastian Rucci averred the following,
in pertinent part: he is executive director of the California Palms; he lives on site; he met
claimant on October 7, 2019, and has been in a romantic relationship with her since then;
he and claimant were engaged in November 2020; claimant lives with him in the facility;
claimant is not an employee of California Palms; claimant assists with various tasks as
she sees the needs; claimant helped him when he was sick in 2020; California Palms has
many volunteers; claimant has volunteered for the past 28 months, assisting with the
No. 22AP-421 6
front office and participating in hiring interviews; claimant’s volunteering is no different
than the other volunteers and is not paid; claimant received a $2,000 check from
California Palms for reimbursement of supplies that she purchased for clients for art
classes; and claimant signed about five dozen checks when he was sick.
{¶ 15} 11. On November 16, 2021, the employer filed a C-86 motion requesting that
the commission declare claimant committed fraud by engaging in work and declare an
overpayment of all TTD compensation improperly paid.
{¶ 16} 12. The matter was heard before a district hearing officer (“DHO”), and on
February 3, 2022, the DHO issued an order, finding the following: (1) the November 16,
2021, C-86 motion filed by the employer is granted; (2) claimant received TTD
compensation from August 25, 2019, to December 20, 2020, but claimant was working
for California Palms from May 31, 2020, to November 2020, and, therefore, was not
entitled to TTD compensation from May 31, 2020, to December 20, 2020; (3) claimant
was overpaid TTD compensation for that period; (4) claimant engaged in fraud in
obtaining TTD compensation for that period; (5) Gargas indicated in her March 26, 2021,
statement that claimant worked as administrative staff and as acting manager while Rucci
was sick and did her new-hire orientation and terminated her employment there;
(6) claimant testified that she terminated Gargas pursuant to an order from a doctor who
worked for California Palms because Gargas did not follow the doctor’s instructions;
(7) the DHO relied on Brandt’s March 23, 2021, statement; (8) claimant signed her
August 21, 2019, first report of injury and her July 2, 2020, C-84 request for TTD
compensation that indicated claimant has not worked in any capacity since August 5,
2019, and her signature is under the fraud warning; (9) claimant’s failure was material to
the payment of TTD compensation; (10) claimant’s actions were made with such utter
disregard and recklessness that knowledge of such falsity may be inferred; claimant knew
the information on the C-84 form was false and she knew she was not entitled to TTD
benefits; (11) claimant signed and submitted the C-84 form with the intent to mislead the
employer to rely upon the statements therein; (12) the employer relied upon claimant’s
completion of the C-84 and MEDCO-14 forms; (13) as a proximate result of the employer’s
reliance on claimant’s C-84 and MEDCO-14s, TTD compensation was improperly paid;
and (14) pursuant to State ex rel. Ellis v. Indus. Comm., 92 Ohio St.3d 508 (2001), the
No. 22AP-421 7
Supreme Court of Ohio held that the commission does not abuse its discretion when
declaring an overpayment over a period of compensation received by an injured worker
during an extended period, despite that fact that there was only evidence establishing
fraudulent conduct for only a portion of that time. Both claimant and the employer
appealed.
{¶ 17} 13. The matter was heard before a staff hearing officer (“SHO”), and on
June 2, 2022, the SHO issued an order, finding the following: (1) the order of the DHO is
vacated; (2) claimant received TTD compensation from October 7, 2019, through
December 20, 2020; (3) there is insufficient evidence to establish that claimant was
working from October 7, 2019, through May 30, 2020, or from January 1, 2020, through
May 30, 2020; (4) there is sufficient evidence to establish that claimant was working from
May 31, 2020, for California Palms; (5) Gargas indicated in her March 26, 2021, statement
that claimant conducted her new-hire orientation and terminated her employment;
(6) the SHO is using the last day of the month claimant hired Gargas as the first day that
claimant performed work activity; (7) claimant signed 58 checks on behalf of California
Palms from August 11, 2020, through October 30, 2020, which included paychecks to
employees and payments to medical providers and vendors; (8) claimant negotiated an
October 7, 2020, check from the California Palms bank account, made payable to claimant
for $2,000, which claimant testified was for reimbursement for things that she had
purchased for the facility; (9) claimant’s LinkedIn account listed her as a volunteer and
administrator/CDCA; (10) claimant’s National Provider Identifier (“NPI”) profile
indicated she was a counselor for addiction and substance-use disorder; (11) claimant was
assigned an NPI number in February 2020 with her medical specialization listed as
counselor for addiction and substance-use disorder at the same address at California
Palms; (12) claimant is not entitled to TTD compensation from May 31, 2020, through
December 20, 2020, because claimant worked for California Palms during this period,
and she was overpaid during this period due to fraudulent activity; (13) the 6 elements of
fraud have been established: (a) there was a duty to disclose and the concealment of the
fact that claimant was working for California Palms during the period in question;
(b) claimant’s failure to disclose her employment at California Palms was material to the
transaction; (c) claimant’s actions were undertaken falsely in that she knew she was
No. 22AP-421 8
working and of her employment status, and she signed C-84 requests for compensation
that included a fraud warning and definition of “work”; (d) claimant intended to mislead
the employer into relying on the concealment of fact that she was working for California
Palms; (e) the employer justifiably relied upon claimant’s signature on the C-84 request
indicating that claimant was not working in any capacity; and (f) the resulting injury
proximately caused by the employer’s reliance on claimant’s C-84 request was that the
employer paid claimant TTD compensation; (14) State ex rel. McBee v. Indus. Comm.,
132 Ohio St.3d 209, 2012-Ohio-2678, is applicable and holds that unpaid activities that
are not minimal and directly generate income for a separate entity may be considered
work for purposes of TTD compensation eligibility; (15) claimant’s activities for California
Palms constituted work because (a) they were consistent and ongoing; (b) they consisted
of administrative, customer service, and human resources duties that directly generated
income and were necessary for the operation of California Palms; (c) claimant terminated
an employee and purchased items for the facility; (d) claimant conducted the new-hire
orientation for an employee, wrote checks for California Palms, and was registered as a
counselor for California Palms; and (e) claimant actively pursued her career as a
counselor by obtaining CDCA certification and being listed as a counselor for California
Palms; and (16) the SHO relied upon the following evidence: (a) the March 26, 2021,
statement of Gargas; (b) the October 6, 2021, self-insuring employer indemnity report;
(c) the July 2, 2020, C-84 request for TTD compensation; (d) the October 16, 2020, self-
insuring employer online investigation report; (e) the 58 checks written by claimant from
the California Palms account; and (f) the $2,000 check from California Palms to claimant.
Claimant appealed the order.
{¶ 18} 14. On June 22, 2022, the commission refused claimant’s appeal.
{¶ 19} 15. On July 13, 2022, claimant filed a petition for writ of mandamus.
Conclusions of Law and Discussion:
{¶ 20} The magistrate recommends that this court deny claimant’s writ of
mandamus.
{¶ 21} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
No. 22AP-421 9
to provide such relief, and the lack of an adequate remedy in the ordinary course of the
law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 22} A clear legal right to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order that 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).
{¶ 23} TTD compensation awarded pursuant to R.C. 4123.56 is compensation for
wages lost when a claimant’s injury prevents a return to the former position of
employment. State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982). TTD
compensation is prohibited for one who has returned to work. R.C. 4123.56(A). “Work”
generally means labor exchanged for pay. State ex rel. Lawson v. Mondie Forge, 104 Ohio
St.3d 39, 2004-Ohio-6086, ¶ 19. Remuneration can take the form of a cash payment or a
cash-like benefit. See State ex rel. Alesci v. Indus. Comm., 97 Ohio St.3d 210, 2002-Ohio-
5932, ¶ 20. Activities that are not medically inconsistent with the inability to return to the
former position of employment bar TTD compensation only when a claimant is
remunerated for them. State ex rel. Ford Motor Co. v. Indus. Comm., 98 Ohio St.3d 20,
2002-Ohio-7038, ¶ 23.
{¶ 24} The Supreme Court of Ohio has recognized an exception to the general
principle above for “unpaid activities that directly generate income for a separate
entity[,]” which, in some situations, may be considered work for purposes of TTD
compensation eligibility. See McBee at ¶ 4. However, if the claimant’s activities are
minimal and relate only indirectly to generating income, they may not be considered work
that would disqualify a claimant from receiving TTD compensation. Ford at ¶ 24.
Furthermore, the performance of tasks that a person would normally be paid to do
constitutes “work.” State ex rel. Seibert v. Richard Cyr, Inc., 157 Ohio St.3d 266, 2019-
Ohio-3341, ¶ 21. “Work is ‘sustained’ if it consists of an ongoing pattern of activity.” State
ex rel. Bonnlander v. Hamon, 150 Ohio St.3d 567, 2017-Ohio-4003, ¶ 15. “[W]ork need
No. 22AP-421 10
not be regular or daily” to qualify as sustained. Id. “[I]ntermittent and occasional” or
“part-time” work may qualify. Id.
{¶ 25} The prima facie 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, 55 (1987), citing
Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d 69 (1986), paragraph two of the
syllabus, and Cohen v. Lamko, Inc., 10 Ohio St.3d 167 (1984).
{¶ 26} In the present case, claimant argues that there was not some evidence to
support the SHO’s order that found she had engaged in “work,” asserting the following:
(1) there was never any form of compensation paid to claimant for any alleged activities
the commission claims constituted fraud; (2) the commission failed to mention that, at
the time of the alleged fraud, claimant lived on the California Palms premises with her
then boyfriend, Rucci, and the SHO referenced the amount of time claimant spent at the
facility without taking this into consideration; (3) the case the SHO relied upon, McBee,
is not analogous to the present case, and the present case is more like Ford; and (4) there
is no evidence that relator generated income for California Palms.
{¶ 27} Claimant generally addresses the arguments together and relies upon much
of the same facts. Claimant asserts that she lived at the location of the business; her then
boyfriend was the owner/operator of California Palms; she spent 90 percent of her time
there and occasionally helped with odds and ends around the premises; there was a period
when her boyfriend was ill and she assisted him with signing checks and performing
administrative functions unrelated to the nature of the business; and the SHO only
generically referred to the allegedly fraudulent conduct and stated that it helped produce
income for the employer while only citing the amount of time she spent there.
{¶ 28} Claimant’s arguments are not persuasive. The evidence was clear and
conclusive that claimant was working from May 31, 2020, to December 20, 2020, for
California Palms, and the magistrate relies upon the same evidence cited by the SHO to
No. 22AP-421 11
support the conclusion that claimant was engaging in work at California Palms, as follows:
Gargas indicated in her March 26, 2021, statement that claimant conducted her new hire
orientation and terminated her employment; claimant signed 58 checks on behalf of
California Palms from August 11, 2020, through October 30, 2020, which included
paychecks to employees and payments to medical providers and vendors; claimant
negotiated an October 7, 2020, check from the California Palms bank account, made
payable to claimant for $2,000, which claimant testified was for reimbursement for
things that she had purchased for the facility; claimant’s LinkedIn account listed her as a
volunteer and administrator/CDCA; claimant’s NPI profile indicated she was a counselor
for addiction and substance-use disorder; claimant was assigned an NPI number in
February 2020 with her medical specialization listed as counselor for addiction and
substance-use disorder at the same address as California Palms; claimant’s unpaid
activities were not minimal, were consistent and ongoing, and directly generated income
for California Palms; claimant’s work consisted of administrative, customer service, and
human resources duties that directly generated income and were necessary for the
operation of California Palms; claimant terminated an employee and purchased items for
the facility; claimant conducted the new-hire orientation for an employee, wrote checks
for California Palms, and was registered as a counselor for California Palms; and claimant
actively pursued her career as a counselor by obtaining CDCA certification and being
listed as a counselor for California Palms.
{¶ 29} As for claimant’s specific arguments, claimant’s first argument is without
merit. Whether claimant was ever paid compensation for any of the work activities is not
a dispositive factor. As explained above, although “work” generally means labor
exchanged for pay, unpaid activities that directly generate income for a separate entity
may also be considered work for purposes of TTD compensation eligibility. See McBee at
¶ 4. Thus, that California Palms did not compensate claimant for the activities cited by
the SHO, alone, does not prevent a finding that the activities constituted work.
Furthermore, although the magistrate cannot locate where in the SHO’s order that the
SHO referenced the amount of time claimant spent at the facility, as claimant contends,
the SHO was clearly aware that claimant lived at California Palms, as the investigative
materials, testimony, and other evidence in the record is replete with acknowledgements
No. 22AP-421 12
of such. Absent evidence to the contrary, any findings by the SHO that involved claimant’s
presence at the facility were undoubtedly made with the knowledge that claimant lived at
the facility with her then boyfriend. Therefore, these arguments are without merit.
{¶ 30} In addition, the magistrate finds no error with regard to the SHO’s reliance
upon McBee to find claimant’s activities constituted work, and Ford is not analogous to
the present case. In McBee, the claimant, while receiving TTD compensation, performed
unpaid activities for his wife’s business. The commission found that TTD compensation
should not have been paid while the claimant worked for his wife’s business, and the
claimant committed fraud. In mandamus, this court upheld the finding that the claimant
had worked while receiving TTD compensation but overturned the finding of fraud,
determining that there was no evidence that the claimant knew his unpaid activities for
his wife’s business constituted work for purposes of TTD compensation eligibility. The
Supreme Court of Ohio affirmed, finding that claimant did not engage in fraud because
the evidence did not show that the claimant was aware that his unpaid activities would be
considered work that precluded TTD compensation, and he did not knowingly mislead
anyone, pointing out that the documents that claimant used to apply for ongoing TTD
compensation did not define “work” or indicate that unpaid activities could sometimes be
classified as work. However, the court agreed that the claimant’s activities for his wife’s
company were not minimal, directly generated income, and were consistent and ongoing;
thus, his activities, though unpaid, constituted work, precluding TTD compensation.
{¶ 31} In McBee, the court cited Ford, in which the claimant was receiving TTD
compensation while working for his own lawncare business. Based upon evidence
showing that after his industrial injury, the claimant hired workers to do the lawn care,
and his participation was limited to signing paychecks, fueling lawnmowers weekly, and
driving the mowers onto a truck, while his girlfriend performed all clerical work, the court
found there was no showing that the claimant did any of the landscaping work while
receiving TTD compensation. The court explained that the claimant’s activities did not
amount to “work” so as to disqualify him from TTD compensation, as the claimant’s
activities did not, in and of themselves, generate income and produced money only
secondarily by doing activities that allowed his workers to perform income-generating
No. 22AP-421 13
tasks, and his activities were truly minimal and only indirectly related to generating
income.
{¶ 32} In the present case, claimant’s activities at California Palms were
substantial, consistent, and ongoing; thus, claimant’s activities, though unpaid,
constituted work, precluding TTD compensation. Here, claimant conducted a new-hire
orientation; terminated an employee; signed 58 paychecks, medical-provider checks, and
vendor checks on behalf of California Palms; purchased supplies for the facility; and
negotiated a check from the California Palms bank account payable to claimant for
reimbursement for purchases for the facility. Although there was no evidence that
claimant was paid for these consistent, ongoing, and substantial activities, they were job
duties that California Palms otherwise would have had to pay an employee to perform.
This case is unlike Ford, in that claimant’s work here must be viewed from the perspective
of an employee, not a business owner, as in Ford. Although if claimant were performing
these tasks as the business owner, claimant’s activities for California Palms could at least
arguably be viewed as secondary to direct income generation for the primary business of
an addiction rehabilitation center, claimant’s activities here are actual work for which a
typical employee would receive income paid by a business owner. See, e.g. State ex rel.
Dunlap v. Indus. Comm., 10th Dist. No. 16AP-101, 2016-Ohio-8131, ¶ 11 (the claimant’s
actions were that expected of a typical employee). Here, claimant does not stand in the
shoes of the business owner in Ford who acted in a supervisory capacity and employed
workers to perform the work, but in the shoes of the workers who were found to be
performing the actual work to produce income for the lawncare business, including the
owner’s girlfriend who performed all clerical work. Claimant’s jobs were not passive
managerial tasks, as in Ford, but the type of active work normal employees would
perform. See, e.g. Dunlap at ¶ 11 (the claimant was greater than a mere presence; her
activities were not minimal, but were demanding, more than passive, and broad in
nature). Because California Palms did not have to pay other employees to perform the
administrative, customer service, human-resources, purchasing, and clerical jobs that
claimant was consistently performing in a role that mirrored that of a typical employee,
claimant was clearly carrying out work that directly helped to produce income for
California Palms’ main business of addiction rehabilitation. Thus, claimant’s argument
No. 22AP-421 14
that there was no evidence that her activities generated income for California Palms is
without merit. For these reasons, the magistrate finds there was some evidence to support
the commission’s finding that claimant engaged in “work” while receiving TTD
compensation.
{¶ 33} Finally, the magistrate notes that although claimant mentions the
commission’s finding of fraud in her brief, claimant’s focus in her brief was on whether
her activities constituted “work,” and there is little substantive argument that the SHO’s
finding of fraud was otherwise in error. Claimant raises no clear arguments related to the
SHO’s analysis of the six elements of fraud. Insofar as claimant may be raising error with
respect to the independent fraud finding as well, the magistrate finds that the SHO’s
determination and analysis of the elements of fraud were supported by some evidence, as
expressed in the SHO’s order. Importantly, claimant admitted in her testimony before the
DHO that she signed the July 2, 2020, request for TTD compensation C-84 form and
marked “no” in Section 3, which affirmed that she was not working in any capacity,
including full or part-time, was not self-employed, and did not participate in income-
producing hobbies, commission work, or unpaid activities that were not minimal and
directly earned income for someone else. In addition, directly above the signature line in
the C-84 form is an attestation that claimant understood she was not permitted to work
while receiving TTD compensation. Therefore, claimant was aware of the definition of
“work.” Notably, the present case differs from McBee, in which the court found the
claimant did not engage in fraud because the evidence did not show that the claimant was
aware that his unpaid activities would be considered work that precluded TTD
compensation, and he did not knowingly mislead anyone, pointing out that the
documents that claimant used to apply for TTD compensation did not define “work” or
indicate that unpaid activities could sometimes be classified as work. Here, however, the
C-84 claimant signed included additional language defining “work” that was absent from
the documents in use at the time of McBee. This court in Dunlap explained the difference
between the older C-84 forms, which only asked if the injured worker had worked in any
capacity during the period of disability, and the modified C-84 forms, which ask if the
injured worker was working in unpaid activities that were not minimal and directly
earned income for someone else. This court found in Dunlap that the additional language
No. 22AP-421 15
provided proof that the claimant had knowledge of the falsity of the representations made
to the BWC. For these reasons, the magistrate finds that the SHO’s finding of fraud was
supported by some evidence.
{¶ 34} Accordingly, it is the magistrate’s recommendation that this court should
deny claimant’s petition for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
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). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.