The opinion
[Cite as State ex rel. Barbee v. Midland Concrete & Sand Transp., 2025-Ohio-624.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Ethel M. Barbee, :
Relator, :
v. : No. 23AP-423
Midland Concrete & Sand : (REGULAR CALENDAR)
Transportation et al.,
:
Respondents.
:
D E C I S I O N
Rendered on February 25, 2025
On brief: Finnegan Legal, LLC, Matthew L. Finnegan, and
Norman J. Ullom-Morse, for relator.
On brief: Dave Yost, Attorney General, and Denise A. Corea,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
BOGGS, J.
{¶ 1} Relator, Ethel M. Barbee, seeks a writ of mandamus against respondents, the
Midland Concrete & Sand Transportation and the Industrial Commission of Ohio
(“commission”), ordering the commission to vacate its order that denied her motion to
establish her as a partly dependent person pursuant to R.C. 4123.59(C) and to grant her
motion for death benefits. For the following reasons, we deny her request for a writ of
mandamus.
{¶ 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 considered the action on its merits
and issued a decision, including findings of fact and conclusions of law, which is appended
hereto. The magistrate concluded that Barbee did not establish that she was entitled to a
No. 23AP-423 2
writ of mandamus through clear and convincing evidence that she had a clear legal right to
the requested relief, that there was a clear legal duty for the commission to provide that
relief, and that there was a lack of an adequate remedy in the ordinary course of the law.
{¶ 3} No objections have been filed to the magistrate’s decision. “If no timely
objections are filed, the court may adopt a magistrate’s decision unless the court determines
that there is an error of law or other defect evident on the face of the decision.” Civ.R.
53(D)(4)(c).
{¶ 4} Upon review, we find no error in the magistrate’s findings of fact or
conclusions of law. Therefore, we adopt the magistrate’s decision, including the findings of
fact and the conclusions of law therein, as our own and conclude that Barbee has failed to
establish a right to a writ of mandamus.
Petition for writ of mandamus denied.
BEATTY BLUNT and LELAND, JJ., concur.
No. 23AP-423 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Ethel M. Barbee, :
Relator, :
v. : No. 23AP-423
Midland Concrete & Sand : (REGULAR CALENDAR)
Transportation et al.,
:
Respondents.
:
MAGISTRATE’S DECISION
Rendered on November 19, 2024
Finnegan Legal, LLC, and Matthew L. Finnegan, and
Norman J. Ullom-Morse, for relator.
Dave Yost, Attorney General, and Denise A. Corea, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 5} Relator, Ethel M. Barbee (“claimant”), has filed this original action seeking a
writ of mandamus against respondent, Midland Concrete & Sand Transportation
(“employer”) and Industrial Commission of Ohio (“commission”), ordering the commission
to vacate its order that denied her motion to establish her as a partly dependent person
pursuant to R.C. 4123.59(C), and to grant claimant’s motion for death benefits.
Findings of Fact:
No. 23AP-423 4
{¶ 6} 1. On October 19, 2019, claimant’s son, Raynard E. Holmes (“decedent”), died
during the course of his employment as a truck driver for the employer, when the front tire
of his truck blew out, and he lost control of the truck, resulting in the truck striking a
concrete median barrier and dragging its left side against the barrier until it came to a stop
and caught on fire. The decedent’s death certificate indicated that he died from asphyxia by
inhalation of superheated gases. A toxicology report revealed the presence of cocaine and
cannaboids in the post-mortem blood of the decedent.
{¶ 7} 2. On September 29, 2020, claimant filed a C-5 application for death benefits
and/or funeral expenses, requesting benefits for herself as a partly dependent person
pursuant to R.C. 4123.59(C).
{¶ 8} 3. In a January 5, 2021, order, the Ohio Bureau of Workers’ Compensation
(“BWC”) denied the application for death benefits, finding the following: (1) the decedent’s
death was not related to an industrial accident or occupational disease; and (2) the decedent
was intoxicated or under the influence of a controlled substance not prescribed by a
physician at the time of death, and this was the proximate cause of the decedent’s death.
Claimant appealed.
{¶ 9} 4. Claimant executed an affidavit on February 21, 2021, in which she averred
the following: (1) at the time of his death, the decedent lived at the same address as
claimant; (2) although the dwelling is comprised of two units, the decedent paid the utility
payments for both units and had done so for the past several years; (3) the decedent was
responsible for the general upkeep of the house, making repairs and improvements to both
the interior and exterior of the house; (4) the decedent shopped and paid for food for both
him and claimant; and (5) claimant and the decedent shared cooking duties and ate meals
together.
{¶ 10} 5. A hearing was held before a district hearing officer (“DHO”), and in a
February 26, 2021, order, the DHO denied the application for death benefits, finding the
following: (1) the impairment from the cocaine and cannaboids in the decedent’s system
caused the decedent to be impaired; (2) this impairment was the proximate cause of the
decedent’s death; and (3) the decedent would likely have survived the accident without the
presence of cocaine and cannaboids in his system. Claimant appealed.
No. 23AP-423 5
{¶ 11} 6. A hearing was held before an staff hearing officer (“SHO”), and in an
April 22, 2021, order, the SHO granted the application for death benefits, finding the
following: (1) the accident was caused by mechanical failure and not the decedent’s actions
or inactions; (2) the decedent’s level of illegal substances did not impair him to a degree as
to where he could have prevented the accident or minimized the damage; (3) the decedent
was living with his natural parent; thus, claimant is “presumed to have been partially
dependent upon” the decedent; (4) an award in the sum of $3,000 is to be paid to claimant;
(5) claimant was not wholly dependent upon the decedent; (6) claimant and the decedent
lived in separate parts of a duplex home, they each paid their own utilities, and the decedent
paid the mortgage payments 50 percent of the time, which is the equivalent of his paying
rent for his side of the duplex; and (7) claimant and the decedent shared meals, and the
decedent performed maintenance on the property, but there is insufficient evidence to
establish that claimant was wholly dependent. Claimant appealed.
{¶ 12} 7. On May 11, 2021, the commission refused further appeal.
{¶ 13} 8. Claimant filed a May 21, 2021, request for reconsideration, asserting that,
in the April 22, 2021, order, the SHO correctly determined claimant to be partly dependent
but then made a mistake of law and fact by misapplying R.C. 4123.59(C) and (D).
{¶ 14} 9. On June 14, 2021, the commissioners denied claimant’s request for
reconsideration.
{¶ 15} 10. On September 28, 2021, claimant filed a motion requesting that the
commission exercise continuing jurisdiction, arguing that she was a partly dependent
person pursuant to R.C. 4123.59(C).
{¶ 16} 11. A hearing was held before a DHO, and in a February 19, 2022, order, the
DHO denied claimant’s motion to exercise continuing jurisdiction, finding there was
insufficient evidence of a clear mistake of law or fact. Claimant appealed.
{¶ 17} 12. A hearing was held before an SHO, and in a March 30, 2022, order, the
SHO denied claimant’s motion to exercise continuing jurisdiction, finding the following: (1)
there was no mistake of fact in the SHO’s April 22, 2021, order; (2) claimant’s February 21,
2021, affidavit claims the decedent paid the utility bills for many years, paid for food, and
was responsible for upkeep of the house; (3) however, there is no documentary evidence in
the file to corroborate the affidavit; (4) the only documentary evidence is claimant’s last
No. 23AP-423 6
debit card statement, which does not document any payment of utility bills or any of the
other claims in the affidavit; (5) there was no mistake of law in the SHO’s April 22, 2021,
order; (6) although claimant argues that the SHO erred by not addressing partial
dependency, partial dependency was not addressed at the SHO hearing; (7) claimant was
required to show actual dependency, but claimant’s affidavit was not corroborated by any
documentary evidence; and (8) the SHO awarded claimant compensation consistent with
the presumption set forth in R.C. 4123.59(D)(2). Claimant appealed.
{¶ 18} 13. In an April 19, 2022, order, the commission refused further appeal.
{¶ 19} 14. On June 8, 2022, claimant filed a motion requesting that the matter be
set for a DHO hearing on the issue of establishing claimant as a partly dependent person
pursuant to R.C. 4123.59(C).
{¶ 20} 15. Claimant executed an affidavit on August 20, 2022, in which she averred
the following: (1) claimant is 90 years old; (2) partial dependency was not discussed at the
prior hearings; (3) claimant and the decedent lived together in the same house for the
decedent’s entire life; (4) the decedent paid all of the utility bills for the house and had for
several years; (5) the decedent performed all upkeep and maintenance of the house, making
repairs and improvement to both the exterior and interior of the house; (6) the decedent
performed all of the yardwork; (7) the decedent did all of the shopping for both of them; (8)
the decedent drove claimant to all of her appointments, and she does not drive; (9) claimant
and the decedent owned a small restaurant; the decedent helped her run the restaurant
when it was open; the decedent took the truck driving job to make money to reopen the
restaurant; and the restaurant remained closed since the decedent’s death; (10) they had a
dog together, and claimant took care of all of the dog’s needs; (11) the decedent made half
of the mortgage payments, and they depended on each other financially, with her
depending much more on him; (12) almost all of the financial help that the decedent gave
her was in cash that he gave her weekly; (13) she now depends upon her extended family to
keep from being evicted; and (14) she planned on living with the decedent the rest of her
life.
{¶ 21} 16. A hearing was held before a DHO, and in an August 30, 2022, order, the
DHO denied the motion, finding the following: (1) the commission does not have the
jurisdiction to revisit the issue of dependency yet once again; (2) hearing officers consider
No. 23AP-423 7
dependency in all of its types as part of the death-allowance determination; (3) a request
for a specific type of dependency is not required; (4) a hearing officer is not required to rule
out those forms of dependency that do not apply to a case; (5) once a decision regarding
dependency is made, and the fact that a party believes a different decision should have been
made, then the party is left with the appeal process, which has been exhausted in this case;
(6) the issue of dependency was decided by an SHO in April 2021, and that decision was
appealed to address whole dependency; the decision was appealed; the appeal was refused;
a May 21, 2021, application for reconsideration was filed, outlining in detail the same
arguments presented in the present case asserting a mistake of law and/or fact regarding
the April 2021 decision; and the request for reconsideration was denied; and (7) after a
determination on dependency has been made, a claimant cannot later request that partial
dependency be addressed, even if partial dependency was not specifically requested or
ruled upon at the time of the initial dependency determination. Claimant appealed.
{¶ 22} 17. A hearing was held before an SHO, and in an October 18, 2022, order, the
SHO denied claimant’s motion, finding the following: (1) the issues of dependency and the
amount of death benefits paid to claimant are res judicata; (2) the issues of dependency and
the amount of death benefits paid to claimant were addressed by the April 22, 2021, order
of the SHO, which found that claimant was a dependent and was entitled to $3,000 in death
benefits per statute; (3) claimant appealed that determination, and the commission
rejected the appeal; (4) claimant then filed a four-page application for reconsideration on
May 21, 2021, that contained the same arguments relied upon in the present case; and (5)
the application for reconsideration was denied, and no further appeal was filed on this
issue. Claimant appealed.
{¶ 23} 18. On November 8, 2022, the commission issued an order refusing
claimant’s appeal.
{¶ 24} 19. Claimant filed a request for reconsideration, which the commission
denied on December 3, 2022.
{¶ 25} 20. On July 17, 2023, claimant filed the present complaint for writ of
mandamus.
Conclusions of Law and Discussion:
No. 23AP-423 8
{¶ 26} The magistrate recommends that this court deny claimant’s request for writ
of mandamus.
{¶ 27} The Supreme Court of Ohio has set forth three requirements that 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).
{¶ 28} 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, 78-79 (1986).
But when 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, 58 (1987).
{¶ 29} Pursuant to R.C. 4123.52, “[t]he jurisdiction of the industrial commission and
the authority of the administrator of workers’ compensation over each case is continuing,
and the commission may make such modification or change with respect to former findings
or orders with respect thereto, as, in its opinion is justified.” R.C. 4123.52(A) contains a
clear and broad grant of continuing jurisdiction to the commission. State ex rel. Neitzelt v.
Indus. Comm., 160 Ohio St.3d 175, 2020-Ohio-1453, ¶ 15. However, that jurisdiction is
conditioned on specific criteria: (1) new and changed circumstances; (2) fraud; (3) clear
mistake of fact; (4) clear mistake of law; or (5) error by an inferior tribunal. State ex rel.
Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998).
{¶ 30} It is within the discretion of the commission to determine whether a claimant
is dependent upon the decedent at the time of death. State ex rel. Tweed v. Columbus
Parcel Servs., Inc., 69 Ohio St.2d 331 (1982); State ex rel. Maglis v. Indus. Comm., 10th
Dist. No. 15AP-648, 2016-Ohio-4644, ¶ 8. Therefore, “once the commission has made a
determination on whether a claimant is wholly or partially dependent, this finding can be
disturbed only if ‘* * * that order constitutes an abuse of discretion * * *.’ ” Tweed at 333,
quoting State ex rel. City Iron Works, Inc. v. Indus. Comm., 52 Ohio St.2d 1 (1977). Stated
in other words, “ ‘the degree of dependency is a question of fact to be determined by the
Industrial Commission from the proof before it, and when it has assumed jurisdiction of a
No. 23AP-423 9
claim and has made a determination upon the evidence, such determination is final, unless
a gross abuse of discretion is clearly indicated, or an unlawful procedure has been followed.’
” Id., quoting State ex rel. Pivk v. Indus. Comm., 130 Ohio St. 208, 212 (1935).
{¶ 31} R.C. 4123.59 governs the commission’s determination of a claimant’s
entitlement to death benefits. R.C. 4123.59 provides, in pertinent part, the following:
(B) If there are wholly dependent persons at the time of the
death, the weekly payment is sixty-six and two-thirds per cent
of the average weekly wage, but not to exceed a maximum
aggregate amount of weekly compensation which is equal to
sixty-six and two-thirds per cent of the statewide average
weekly wage as defined in division (C) of section 4123.62 of
the Revised Code, and not in any event less than a minimum
amount of weekly compensation which is equal to fifty per
cent of the statewide average weekly wage as defined in
division (C) of section 4123.62 of the Revised Code, regardless
of the average weekly wage; provided however, that if the
death is due to injury received or occupational disease first
diagnosed after January 1, 1976, the weekly payment is sixty-
six and two-thirds per cent of the average weekly wage but not
to exceed a maximum aggregate amount of weekly
compensation which is equal to the statewide average weekly
wage as defined in division (C) of section 4123.62 of the
Revised Code; provided that when any claimant is receiving
total disability compensation at the time of death the wholly
dependent person is eligible for the maximum compensation
provided for in this section. * * *
***
(C) If there are partly dependent persons at the time of the
death the weekly payment is sixty-six and two-thirds per cent
of the employee’s average weekly wage, not to exceed sixty-six
and two-thirds per cent of the statewide average weekly wage
as defined in division (C) of section 4123.62 of the Revised
Code, and shall continue for such time as the administrator in
each case determines.
(D) The following persons are presumed to be wholly
dependent for their support upon a deceased employee:
(1) A surviving spouse who was living with the employee at the
time of death or a surviving spouse who was separated from
the employee at the time of death because of the aggression of
the employee;
No. 23AP-423 10
(2) A child under the age of eighteen years, or twenty-five
years if pursuing a full-time educational program while
enrolled in an accredited educational institution and
program, or over said age if physically or mentally
incapacitated from earning, upon only the one parent who is
contributing more than one-half of the support for such child
and with whom the child is living at the time of the death of
such parent, or for whose maintenance such parent was
legally liable at the time of the parent’s death.
It is presumed that there is sufficient dependency to entitle a
surviving natural parent or surviving natural parents, share
and share alike, with whom the decedent was living at the time
of the decedent’s death, to a total minimum award of three
thousand dollars.
The administrator may take into consideration any
circumstances which, at the time of the death of the decedent,
clearly indicate prospective dependency on the part of the
claimant and potential support on the part of the decedent. No
person shall be considered a prospective dependent unless
such person is a member of the family of the deceased
employee and bears to the deceased employee the relation of
surviving spouse, lineal descendant, ancestor, or brother or
sister. The total award for any or all prospective dependency
to all such claimants, except to a natural parent or natural
parents of the deceased, shall not exceed three thousand
dollars to be apportioned among them as the administrator
orders.
In all other cases, the question of dependency, in whole or in
part, shall be determined in accordance with the facts in each
particular case existing at the time of the injury resulting in
the death of such employee, but no person shall be considered
as dependent unless such person is a member of the family of
the deceased employee, or bears to the deceased employee the
relation of surviving spouse, lineal descendant, ancestor, or
brother or sister.
{¶ 32} In the present case, claimant raises the following two arguments: (1) The SHO
properly determined claimant to be partly dependent, as defined in R.C. 4123.59(C), but
then disregarded the correct death benefit award set forth in R.C. 4123.59(C) and, instead,
granted a death benefit award under R.C. 4123.59(D); and (2) the SHO order from the April
19, 2021, hearing does not contain some evidence to support its findings.
No. 23AP-423 11
{¶ 33} With regard to the first argument, claimant asserts that, although the SHO
determined that she was a partly dependent person, the SHO did not award the benefit
required by R.C. 4123.59(C). As a partly dependent person, claimant urges, she should have
been entitled to a weekly payment of 66-2/3 percent of her son’s average weekly wage, not
to exceed 66-2/3 percent of the statewide average weekly wage, as set forth in R.C.
4123.59(C). Instead, argues claimant, the SHO found that she was presumed to be “partially
dependent” upon the decedent and awarded a total of $3,000 pursuant to R.C. 4123.59(D),
which relates solely to wholly dependent persons. Claimant asserts that the SHO conflated
sections (C) and (D) and mixed the “partly dependent” statutory language with the “wholly
dependent” statutory language. Claimant contends there are only three possible categories
for a dependent in order to recover under R.C. 4123.59: (1) wholly dependent; (2) partly
dependent; and (3) presumed sufficiently dependent. The SHO’s finding that she was
“presumed to be partially dependent” is not a category and strongly connotes the statutory
category of “partly dependent” in R.C. 4123.59(C), but the SHO did not award benefits
under section (C). Claimant asserts that neither “partly dependent” nor “partially
dependent” are a part of the “presumed that there is sufficient dependency” portion of the
statute in section (D).
{¶ 34} The commission counters that claimant misconstrues R.C. 4123.59(D) as
only applying to whole dependents, and it is evident that section (D) also applies to partial
dependents. The commission explains the statutory scheme as follows. R.C. 4123.59(B) and
(C) generally provide for the payment of death benefits to those who were either wholly or
partly dependent on the deceased employee, and R.C. 4123.59(D) addresses when there will
be a presumption of dependency. R.C. 4123.59(D)(1) and (2) provide for a presumption of
whole dependency to a surviving spouse and the children of a deceased employee, while in
a separate paragraph, R.C. 4123.59(D)(2) provides for a minimum death benefit of $3,000
for a parent that was living with the deceased employee at the time of death. However, this
section provides that there is a presumption of “sufficient dependency,” not whole
dependency, for a parent that was living with the deceased employee at the time of death.
Although both R.C. 4123.59(B) and (C) provide for the death benefit to be paid at 66-2/3
percent for both whole and part dependents, R.C. 4123.59(D) addresses when a parent is
living with the decedent and provides for a presumption of sufficient dependency to such
No. 23AP-423 12
parent for a minimum award of $3,000. That R.C. 4123.59(D) does not exclusively address
the issue of whole dependency is evident from the final paragraph of R.C. 4123.59(D), which
provides for the finding of actual dependency based on the facts of each particular case,
either whole or in part, when there is no presumption. Based on its view of the statutory
scheme, the commission contends that the SHO correctly applied R.C. 4123.59 by
considering all of the evidence and concluding that claimant was a presumed partial
dependent entitled to $3,000 under subsection (D).
{¶ 35} The magistrate agrees with the commission’s reading of R.C. 4123.59(D).
Although the SHO’s use of terminology not included in the statute unnecessarily creates an
opportunity to question the order, the commission’s ultimate determination and under
what statutory section it proceeded are, nevertheless, clear. The SHO’s April 22, 2021, order
uses the phrase “presumed to have been partially dependent upon.” Certainly, “partially
dependent” sounds like “partly dependent,” the terminology used in R.C. 4123.59(C).
However, because the SHO found that claimant was “presumed” to be partially dependent
and awarded the sum of $3,000, it is apparent that the SHO was making a finding pursuant
to R.C. 4123.59(D). Subsection (D) uses the phrase “presumed that there is sufficient
dependency,” and the SHO’s use of this phrase would have avoided claimant’s present
assertion that the SHO conflated subsections (C) and (D). Nevertheless, the magistrate
finds it clear that the SHO was referring to the presumption-of-dependency option included
in R.C. 4123.59(D) when analyzing the claimant’s level of dependency, given the use of the
word “presumed” and the award of $3,000.
{¶ 36} Claimant’s argument that R.C. 4123.59(D) relates solely to wholly dependent
persons is without merit. Initially, it is true that subsection (D) begins with “[t]he following
persons are presumed to be wholly dependent for their support upon a deceased
employee[.]” Subsections (D)(1) and (D)(2) then describe the two types of specific familial
relationships that are presumed to be wholly dependent upon a decedent; namely, a
surviving spouse and a child, respectively. However, in three separate paragraphs after
subsection (D)(2), the statute addresses other situations. The first paragraph after
subsection (D)(2), which is at issue here, addresses another type of familial relationship
that may be presumed to be dependent: a surviving natural parent with whom the decedent
was living at the time of the decedent’s death. This paragraph uses the imprecise phrase
No. 23AP-423 13
“sufficiently dependent” because even if a surviving natural parent cannot demonstrate
whole or part dependency under one of the other sections of R.C. 4123.59, the surviving
natural parent can still obtain some compensation if the parent is living with the decedent.
The living arrangement presumes “sufficient” dependency. Here, the SHO explicitly
concluded that claimant did not prove she was wholly dependent upon her son, but their
living circumstances at the time of decedent’s death were enough to qualify for a
presumption of sufficient dependency. Having specifically found claimant was not “wholly”
dependent upon the decedent, the SHO used the term “partially” to describe their level of
dependency. The SHO only had to believe claimant, as a surviving natural parent, was living
with the decedent at the time of his death for the presumption to apply. That the SHO
described the dependency as “partial[ ]” was superfluous. Nevertheless, given that the
record included evidence that claimant and the decedent’s lives were financially and
socially intermingled to some degree, the SHO could reasonably describe claimant’s
relationship with the decedent as being “partially dependent” while that dependence still
did not rise to the level of being “partly dependent” to trigger an award under R.C.
4123.59(D).
{¶ 37} The other two paragraphs in R.C 4123.59(D) also make evident that
subsection (D) does not relate solely to wholly dependent persons, as argued by claimant.
The second paragraph speaks to prospective dependency and limits total awards in such
cases to $3,000, without reference to being wholly dependent. The third paragraph directs,
in all other circumstances, the question of dependency, “in whole or in part,” must be
determined in accordance with the facts in each particular case existing at the time of the
injury. Thus, the third paragraph specifically concerns situations that are not limited solely
to wholly dependent persons. For these reasons, the magistrate finds that the SHO properly
determined the presumption in R.C. 4123.59(D) applied to claimant’s circumstances.
{¶ 38} Claimant next argues that the SHO’s order does not contain some evidence
to support the order. Claimant asserts that merely because the SHO order specifies a
payment of $3,000 does not alone constitute some evidence to support the order under
R.C. 4123.59(D). The issue claimant raises in this argument was already addressed in
discussing claimant’s first argument above. That the SHO awarded claimant $3,000 is not
the only “evidence” to support a finding that the SHO made the award under
No. 23AP-423 14
R.C. 4123.59(D) rather than R.C. 4123.59(C). The SHO also found that claimant was
“presumed” to be partially dependent. In addition to the awarded sum of $3,000, that the
SHO used the term “presumed” points to the conclusion that the SHO’s finding was
pursuant to the presumption afforded in R.C. 4123.59(D). Again, the SHO’s use of
subsection (D)’s phraseology “presumed that there is sufficient dependency” would have
eliminated claimant’s concern that the SHO conflated subsections (C) and (D), but it is
otherwise clear by the order that the SHO was referring to the presumption included in R.C.
4123.59(D) when analyzing the claimant’s level of dependency, given the use of the word
“presumed” and the award of $3,000. Therefore, claimant’s second argument is without
merit, and the commission did not abuse its discretion when it found claimant was entitled
to an award under R.C. 4123.59(D).
{¶ 39} Accordingly, it is the magistrate’s recommendation that this court 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.