The opinion
[Cite as State ex rel. Tradesmen Internatl., L.L.C. v. Indus. Comm., 2022-Ohio-2935.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Tradesmen International, LLC., :
Relator, :
v. : No. 20AP-572
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
DECISION
Rendered on August 23, 2022
On brief: Dinsmore & Shohl LLP, Michael L. Squillace, and
Christen S. Hignett, for relator.
On brief: Tarkowsky & Piper Co., L.P.A., John Tarkowsky,
and Gregory J. Tarkowsky, amicus curiae in support of
relator.
On brief: Dave Yost, Attorney General, and Denise A. Gary,
for respondent Industrial Commission of Ohio.
On brief: The Ivan Law Firm, and Katherine E. Ivan, for
respondents Linda Crow and Matthew Crow.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BEATTY BLUNT, J.
{¶ 1} Relator, Tradesmen International, LLC ("Tradesmen International"), filed a
petition for writ of mandamus to order respondent, Industrial Commission of Ohio
("commission"), to vacate its order finding Matthew Crow to be a partial dependent of a
deceased employee of Tradesmen International and awarding him a lifetime death benefit.
No. 20AP-572 2
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
the petition was referred to a magistrate of this court. The magistrate issued the appended
decision, including findings of fact and conclusions of law, and recommended that the
petition be denied. Tradesmen International filed timely objections to the magistrate's
decision, which have been submitted to this panel for ruling.
{¶ 3} On December 28, 2018, Michael Crow was killed in a workplace accident
while in the course and scope of his employment with relator. Matthew Crow, born
January 7, 1971, is Michael's son. He was born deaf and blind in one eye, receives social
security payments, and lives with his mother, Michael's ex-wife Linda. On October 22,
2019, Linda and Matthew filed an application for death benefits, asserting that Michael had
provided them money for mortgage payments every month, that Michael had been living
in a recreational vehicle parked in the driveway of their home, and that he shared their
address. The district hearing officer overruled the application, indicating that the assertions
alone were insufficient to establish that either Linda or Matthew were Michael's
dependents.
{¶ 4} Following a telephone appeal hearing, a staff hearing officer ("SHO") issued
an order denying Linda's request for benefits but concluding that Matthew was Michael's
partial dependent. The SHO found that although Matthew was employed and did not live
with Michael, a June 1, 2015 letter from the agency Opportunities for Ohioans with
Disabilities found that was Matthew was "most significantly disabled," eligible for
vocational service, and had only limited functional capacity for self-care, employment, work
skills, communication for employment, or self-direction for employment. (Ex. 3 at 2,
attached to Compl.) The SHO concluded that these disabilities were lifelong and posed a
significant barrier to Matthew's ability to find and sustain employment. Moreover, the SHO
found that Michael helped to provide shelter for Matthew by assisting with Linda's
mortgage payments, using his veteran benefit for that purpose. The SHO therefore found
that Matthew was partially dependent upon Michael on the date of Michael's death and was
entitled to payments as partial dependent pursuant to R.C. 4123.59(C) for the remainder of
his life.
{¶ 5} Tradesmen International appealed the SHO's finding to the respondent
commission, who refused to hear the appeal and denied Tradesmen International's motion
No. 20AP-572 3
for reconsideration of that decision. Tradesmen International then filed the instant action,
requesting this court issue a writ of mandamus ordering the respondent to vacate the
finding that Matthew was Michael's partial dependent eligible for death benefits, and to
order instead that Matthew was not Michael's partial dependent.
{¶ 6} On review, the magistrate found that the respondent had not abused its
discretion and recommended that the writ be denied. Tradesmen International has now
filed and argued three objections to this Court.
I. The Magistrate erred by finding that there was "some
evidence" to support the finding that Matthew Crow was
partially dependent on his father for support.
II. The Magistrate erred by finding that the order of the
industrial commission was not contradictory regarding the
proof that Michael Crow actually paid the mortgage on the
house where Matthew Crow was living.
III. The Magistrate erred by finding that it was not an abuse of
discretion to award Matthew Crow lifetime benefits when
O.R.C. 4123.59(B) would have limited his benefits if he had
been wholly dependent on Michael Crow.
{¶ 7} An employer seeking a writ of mandamus who contends that the Industrial
Commission's decision to grant benefits was not supported by sufficient evidence must
demonstrate that the commission abused its discretion. "For more than fifty years, the
'some-evidence' rule, although not always referred to by that name, has been recognized as
the rule to be applied in determining whether there has been an abuse of discretion with
respect to factual matters." E.g., State ex rel. Johnson v. Indus. Comm., 11 Ohio App.3d 22,
23 (10th Dist.1983) (citing cases). "[T]he mandamus determination must be predicated
upon a finding whether or not there is evidence to support the findings of the Industrial
Commission, not whether this court agrees with those findings." Id., citing State ex rel.
Questor Corp. v. Indus. Comm., 70 Ohio St.2d 240 (1982). The presence of contrary
evidence is not dispositive, so long as the "some evidence" standard has been met. State ex
rel. Am. Std., Inc. v. Boehler, 99 Ohio St.3d 39, 2003-Ohio-2457, ¶ 29. Where there is no
evidence upon which the commission could have based its factual conclusion, an abuse of
discretion is present and mandamus is appropriate. State ex rel. Teece v. Indus. Comm., 68
No. 20AP-572 4
Ohio St.2d 165, 167 (1981), citing State ex rel. Kramer v. Indus. Comm, 59 Ohio St.2d 39,
42 (1979).
{¶ 8} R.C. 4123.59, the statute governing worker's compensation death benefits,
provides in pertinent part:
(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)(2) [T]he 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.
{¶ 9} Tradesmen International first objects that the record before the commission
did not contain evidence sufficient to meet the "some evidence" standard, and that the
magistrate's conclusion to the contrary was erroneous. Initially, it seems beyond dispute
that there is "some evidence" that Matthew was unable to provide for himself without
assistance; therefore, it seems that Tradesmen International contends there was not "some
evidence" in the record that Michael helped to provide for Matthew. But as the magistrate
found, there was evidence on this issue—Linda's unrebutted statement was that Michael
made mortgage payments every month on the house after he moved out and until he died,
and because Michael was not required to make mortgage payments under the terms of the
divorce decree, it was fair for the commission to conclude that Michael made those
payments and did so for the benefit of Matthew. The magistrate concluded, and we agree,
that while this evidence is "not overwhelming or irrefutable" there was some evidence in
the record to support the SHO's determination that the decedent made mortgage payments
in order to provide Matthew a place to live. (Mag's decision at ¶ 33.) Accordingly,
Tradesmen International's first objection is overruled.
No. 20AP-572 5
{¶ 10} Tradesmen International's second objection argues that the order of benefits
is self-contradictory, as the SHO found that Michael's mortgage payments did not establish
that Linda was partially dependent upon him, but were sufficient to establish that Matthew
was partially dependent. Tradesmen International also asserts that the SHO found that
there was insufficient evidence to conclude that Michael made mortgage payments when
evaluating Linda's claim, but found that such payments were in fact made when evaluating
Matthew's claim.
{¶ 11} Tradesmen International has misunderstood the SHO's decision. It is true
that the SHO observed that Linda "has not provided any documentation to the file to
substantiate [Michael's] continued payment since 2006 toward the mortgage," but the SHO
did not find that Michael did not make such payments. (Ex. 3 at 2, attached to Compl.)
Rather, the SHO denied Linda's claim, concluding that she "does not meet the criteria"
under R.C. 4123.59 to establish she was dependent on Michael, because she and Michael
did not "live together at the time of [his] death" and had been "separated due to [his]
aggression." Id. at 3. The SHO further concluded that Linda's evidence that Michael made
mortgage payments, shared some meals with her, and contributed to some of the utilities
did not establish that she was partially dependent on him. Both the SHO and the magistrate
recognized and reconciled the tension between the denial of Linda's claim and the grant of
Matthew's claim by observing that Matthew is Michael's lineal descendant, that Matthew
has disabilities that Linda does not, and that the divorce decree did not obligate Michael to
pay support to Linda. The SHO concluded that Michael's arrangement with Linda "appears
to be more of a situation that the two had a continued relationship for the sake of their son,"
(Ex. 3 at 2, attached to Compl.) and that Michael "did help to provide shelter for Matthew
by helping with the mortgage payment." Id. at 3. The magistrate accordingly determined
that "the SHO's explanation sufficiently distinguished Linda's circumstances from
Matthew's circumstances when it found Matthew to be partially dependent but did not find
Linda to be wholly or partially dependent, as it relates to the payment of the mortgage."
(Mag's Decision at ¶ 36.) We concur, and Tradesmen International's second objection is
therefore overruled.
{¶ 12} Finally, Tradesmen International objects that it was an abuse of discretion
for the SHO to award lifetime benefits for a partial dependency, as benefits for a whole
No. 20AP-572 6
dependency are statutorily limited. But R.C. 4123.59(C) provides that partial benefits "shall
continue for such time as the administrator in each case determines," and the magistrate
noted that there was sufficient evidence to establish that Matthew's disability was lifelong.
Based on the plain language of the statute, the lifetime award was within respondent's
discretion. Tradesmen International's third objection is therefore overruled.
{¶ 13} Accordingly, we adopt the magistrate's decision as our own, including the
findings of fact and conclusion of law, and conclude that the respondent's decision was
supported by some evidence. Tradesmen International's three objections to the
magistrate's decision are overruled and the writ is denied.
Objections overruled;
writ of mandamus denied.
LUPER SCHUSTER, P.J., and SADLER, J., concur.
________________
No. 20AP-572 7
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Tradesmen International, LLC., :
Relator, :
v. : No. 20AP-572
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on October 5, 2021
Dinsmore & Shohl LLP, Michael L. Squillace, and Christen S.
Hignett, for relator.
Tarkowsky & Piper Co., L.P.A., John Tarkowsky, and
Gregory J. Tarkowsky, amicus curiae in support of relator.
Dave Yost, Attorney General, and Denise A. Gary, for
respondent Industrial Commission of Ohio.
The Ivan Law Firm, and Katherine E. Ivan, for respondents
Linda Crow and Matthew Crow.
IN MANDAMUS
{¶ 14} Relator, Tradesmen International, LLC "(the employer"), has filed this
original action requesting this court issue a writ of mandamus ordering respondent,
Industrial Commission of Ohio ("commission"), to vacate its order finding that Matthew
Crow ("Matthew") was eligible for death benefits as being a partial dependent of Michael
No. 20AP-572 8
Crow ("decedent"), and issue an order finding that Matthew is not a partial dependent of
the decedent.
Findings of Fact:
{¶ 15} 1. On December 28, 2018, decedent, while in the course of and arising from
his employment with "the employer," died when he was crushed between two pieces of
equipment. The accident occurred at the facility of Liberty Castings Co., L.L.C. ("Liberty
Castings"), where the employer had placed the decedent to work.
{¶ 16} 2. Respondent, Linda Crow ("Linda"), and decedent married in 1967 but
divorced in 2008.
{¶ 17} 3. Matthew, who was born January 7, 1971, is Linda and decedent's son. He
is deaf and blind in one eye and receives social security payments.
{¶ 18} 4. Linda and Matthew live in a house together. The house and former
mortgage were in Linda's name.
{¶ 19} 5. On October 22, 2019, Linda and Matthew filed an application for death
benefits. Attached to the application was a bank statement from Fairfield National Bank,
which bore both decedent's and Linda's names, and a cancelled check dated October 6,
2018, which was signed by Linda and drawn on an account bearing both Michael's and
Linda's names. Somebody had written on the statement that the cancelled check was for
the mortgage payment and that decedent sent money every month. Also handwritten on
one page of the application was that decedent's recreational vehicle ("RV") was parked in
Linda's driveway, he lived there, and they shared the same address.
{¶ 20} 6. On January 8, 2019, the employer certified the death claim to the extent
that decedent's death occurred within the course of and arising out of his employment with
the employer.
{¶ 21} 7. On February 7, 2020, a district hearing officer ("DHO") held a hearing on
the application. The only issue for adjudication was whether decedent had dependents
eligible for death benefits. Neither Linda nor Matthew appeared at the hearing. The DHO
denied the application, and found the following: (1) because Linda and decedent were not
married at the time of his death, Linda is not presumed wholly dependent pursuant to R.C.
4123.59(D); (2) the information in the file is not sufficient to establish that Linda was a
dependent of decedent; (3) Linda was not present at the hearing to offer testimony about
No. 20AP-572 9
her income, expenses, and financial circumstances; (4) there was no evidence in the claim
file and no evidence was presented at the hearing to support the contention that Matthew
was entitled to benefits as a physically or mentally incapacitated child of decedent; and (5)
Matthew is not eligible for benefits as a dependent of decedent. Linda and Matthew
appealed.
{¶ 22} 8. On July 20, 2020, a staff hearing officer ("SHO") held a hearing over the
telephone due to COVID-19. Prior to the hearing, Linda filed the following: (1) an unsigned
statement from Linda, stating that decedent lived on her property in an RV, decedent used
her electrical power and water supply, decedent made mortgage payments every month on
the house she and Matthew lived in, decedent's mortgage payments were not a requirement
of the divorce, the house was paid off after decedent's death, decedent helped with
household repairs, decedent would come visit with Matthew and eat dinner, decedent
always slept in his RV, and Matthew was disabled and received Social Security payments;
and (2) a June 1, 2015, order of selection from the Zanesville Bureau of Vocational
Rehabilitation, which indicated Matthew was "most significantly disabled," eligible for
services, and seriously limited in self-care for employment outcome, work skills,
communication for employment outcome, and self-direction for employment outcome.
Linda testified at the SHO hearing, while Matthew did not.
{¶ 23} 9. On July 29, 2020, the SHO mailed an order, in which she denied Linda's
application for benefits as wholly or partially dependent but granted Matthew's application
for benefits as partially dependent. In the order, the SHO found the following with regard
to Linda's claim: (1) Linda and decedent were not married at the time of his death; (2) they
divorced in 2008, and decedent's requirement to pay spousal support was terminated in
January 2014; (3) decedent remarried shortly after the divorce, but decedent's spouse died
in 2017; (4) at the time of his death, decedent lived in an RV parked on Linda's property
and used her electricity and water; (5) decedent moved onto Linda's property shortly after
his second wife died; (6) Linda and Matthew lived in a house on the property that Linda
and decedent built in 2006, where they lived until decedent moved out four months later;
(7) the property is owned by Linda; (8) Linda claimed decedent agreed to pay the mortgage
payment after moving out, and he continued to do so until he died; (9) at the time of
decedent's death, the mortgage was paid off through insurance the decedent had paid for;
No. 20AP-572 10
(10) Linda has not provided any documentation to substantiate decedent's continued
payment since 2006 toward the mortgage; (11) joint banking account information shows a
payment from the VA to decedent but no payments to the mortgage company bearing his
signature; (12) the divorce decree is not on file to support a formal agreement between the
parties regarding the monthly house payment; (13) although on the same property, Linda
and decedent lived in separate residences; (14) Linda said in her statement submitted
before the hearing that decedent would eat dinner with Linda and Matthew but always slept
in his RV; (15) the evidence clearly shows that Linda and decedent were not living as
husband and wife at the time of his death, and the facts do not meet the criteria for wholly
dependents in R.C. 4123.59; (16) with regard to partial dependency, the sharing of meals
and some utilities does not support financial dependency; (17) it appeared that the two had
a continued relationship for the sake of their son, with whom meals were shared; and (18)
Linda supplied no documentation to establish that decedent remained named on the
mortgage and, therefore, legally responsible for this debt, or any documentation that
decedent paid this debt for any period between when he moved out in 2006 and his death
in 2018.
{¶ 24} 10. With regard to Matthew's claim, the SHO found the following:
(1) according to Linda, Matthew was born deaf and blind in one eye; (2) Matthew attended
and graduated from Ohio School for the Deaf; (3) since he was 18 years old, Matthew has
received Social Security benefits for his lifelong disabilities; (4) Matthew works off and on
and is currently working at Lowe's unloading trucks and has done so since before decedent's
death; (5) there is no evidence that Matthew's employment has been through a sheltered
workshop; (6) as to whole dependency, Matthew did not live with the decedent but in a
house with his mom; (7) Linda testified that she provides for the care and support of
Matthew, and he receives disability payments; (8) Linda manages his finances through a
joint banking account although she is not his formal legal guardian; (9) because Matthew
and decedent were not living together and decedent was not providing more than half of
his daily support, he is not wholly dependent; (10) there is no evidence in the file that
decedent was legally liable for Matthew's support at the time of his death; (11) the terms of
support in the divorce decree have not been provided; (12) according to the printout from
the court, the divorce was pursued as being without dependent children; (13) Matthew has
a high-school degree; (14) Linda asserts that Matthew has cognitive deficits, but only
No. 20AP-572 11
testimony was provided to support these deficits; (15) Matthew is employed and has not
established he is incapacitated from earning; (16) as for Matthew's partial dependency, a
June 1, 2015, letter from the Opportunities for Ohioans with Disabilities agency notified
Matthew that his priority status for services was deemed "most significantly disabled,"
which qualified him for vocational service; (17) the letter indicated that Matthew had
limited functional capacity in areas of selfcare for employment outcome, work skills,
communication for employment outcome, and self-direction for employment outcome;
(18) the letter and case file for the current case is unclear whether Matthew has true
cognitive deficits; (19) despite this deficiency, Matthew does have disabilities stemming
from being deaf and blind in one eye; (20) Matthew's disabilities are lifelong and create
challenges to finding and sustaining employment; (21) while not found sufficiently
determinative of the dependency of Linda, the SHO is persuaded the decedent did help to
provide shelter for Matthew by helping with the mortgage payment, and this is the only
direct financial support provided; thus, Matthew was partially dependent on the decedent
on the date of his death; (22) the SHO is cognizant of finding the same evidence persuasive
in Matthew's situation but not with Linda's situation; however, Matthew is a lineal
descendant and has significant physical impairments that impact his ability to provide a
level of income to cover living expenses; (23) Linda clearly provides for Matthew's
nourishment, clothing, and other costs of living; (24) the decedent provided money, via his
VA benefit, to keep a roof over Matthew's head and paid for insurance to ensure that this
continued, which was proof he was aware that Matthew might struggle to provide this for
himself; and (25) payments shall be made to Matthew as partial dependent in accordance
with the provisions of R.C. 4123.59(C) for the remainder of his natural life.
{¶ 25} 11. The employer appealed the SHO's order to the commission, but the
commission refused the appeal in an order mailed August 19, 2020.
{¶ 26} 12. The employer filed a motion for reconsideration, which the commission
denied on October 6, 2020.
{¶ 27} 13. On December 14, 2020, the employer filed a complaint for writ of
mandamus, requesting that this court issue a writ of mandamus ordering the commission
to vacate its order finding that Matthew was eligible for death benefits as being a partial
No. 20AP-572 12
dependent of the decedent, and issue an order finding that Matthew is not a partial
dependent of the decedent.
{¶ 28} 14. Liberty Castings has filed a brief of amicus curiae in support of the
employer.
Conclusions of Law and Discussion:
{¶ 29} The magistrate recommends that this court deny the employer's writ of
mandamus.
{¶ 30} 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
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). 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 (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).
{¶ 31} R.C. 4123.59 governs the commission's determination of a claimant's
entitlement to death benefits. R.C. 4123.59(B) provides for death benefits payable to
"wholly dependent persons at the time of the death," and R.C. 4123.59(C) provides for death
benefits payable to "partly dependent persons at the time of the death."
R.C. 4123.59(D) provides:
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. 20AP-572 13
(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.
***
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} Thus, 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. Maglis v. Indus.
Comm. of Ohio, 10th Dist. No. 15AP-648, 2016-Ohio-4644, ¶ 8. See also State ex rel. Tweed
vs. Columbus Parcel Services, Inc., 69 Ohio St.2d 331 (1982). 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, citing State ex rel. City Iron Works, Inc. vs. 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 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). Furthermore, the statute clearly sets forth that the
commission has discretion to determine the period of time that the compensation will be
received. Maglis at ¶ 11.
{¶ 33} In the present matter, the employer first argues there is no evidence to
support the finding that Matthew was actually financially dependent upon decedent at the
No. 20AP-572 14
time of decedent's death, and Matthew failed to sustain his burden on this issue. The
employer claims the award was based upon speculation, assumption, and conjecture. The
employer cites the following in support of its argument: (1) there is no dispute that, at the
time of his death, decedent was not legally obligated to support his adult son; (2) there is
no dispute that Matthew did not attend any of the hearings and did not submit any written
statements to support his claim; (3) although Matthew is hearing impaired, there is no
evidence that he lacks the cognitive skills to communicate in any fashion; (4) Matthew is
able to work at Lowe's despite his impairment; (5) Matthew graduated from high school;
(6) all of the "evidence" came from Linda, via an unsigned statement and her testimony; (7)
the SHO concluded that the only direct financial support provided was that decedent helped
with the mortgage payments, and there was no competent evidence to support this finding;
and (8) although Linda's statement provided the only support to find decedent helped with
the mortgage, there was no proof to support the statement, as decedent did not own the
property, decedent's name was not on the mortgage, decedent had no obligation to make
any payments, Linda did not submit any cancelled checks or bank records as support, and
Linda only submitted an October 6, 2018, check she signed.
{¶ 34} Although many of the employer's above contentions, namely (1) through (6),
are accurate and present reasonable points in an attempt to undermine the commission's
determination regarding dependency, they do not necessarily negate the commission's
determination or indisputably invalidate its reasoning or evidence. There was some
evidence before the commission to support a finding that Matthew was disabled. The
evidence demonstrated that Matthew was deaf and blind in one eye. A June 1, 2015, order
of selection from the Zanesville Bureau of Vocational Rehabilitation indicated Matthew was
"most significantly disabled," eligible for services, and seriously limited in self-care for
employment outcome, work skills, communication for employment outcome, and self-
direction for employment outcome. Whether these disabilities rose to the level of partial
dependency on the part of Matthew was within the discretion of the commission. The SHO
found this evidence demonstrated Matthew had lifelong disabilities that caused challenges
to finding and sustaining employment and these significant physical impairments impacted
his ability to provide a level of income to cover living expenses. The magistrate will not
disturb such discretion, absent an abuse of that discretion, which the magistrate fails to
find.
No. 20AP-572 15
{¶ 35} With regard to the arguments contained in (7) and (8) above, the employer is
correct that the commission relied upon the rationale that decedent helped with the
mortgage payments to support its dependency determination; however, contrary to the
employer's assertions, the SHO cited some evidence to support this finding. The SHO was
persuaded that the decedent helped to provide shelter for Matthew by helping with the
mortgage payment. The SHO found that the decedent provided money, via his VA benefit,
to keep a roof over Matthew's head and paid for insurance to ensure this continued, which
was proof he was aware Matthew might struggle to provide this for himself. There was
evidence from Linda's statement that decedent made mortgage payments every month on
the house after he moved out and until he died, and that the house was paid off after
decedent's death with his insurance proceeds. Furthermore, Linda stated that decedent was
not required to make payments on the mortgage pursuant to the terms of the divorce
decree, which negates the idea that decedent was making the mortgage payments out of
obligation to Linda and supports the notion that he was making the mortgage payments for
the benefit of Matthew. The SHO agreed that the situation between Linda and decedent
appeared to be more of one in which they maintained a relationship only for the sake of the
son. Although not overwhelming or irrefutable evidence, there was some evidence to
support the SHO's determination that the decedent made mortgage payments in order to
provide Matthew a place to live, and, thus, he was partially dependent on the decedent on
the date of his death. That most of the evidence regarding Matthew's disability and the
decedent's payment of the mortgage originated from Linda's hearing testimony and written
statement does not prevent the SHO from finding it credible or relying upon it. Questions
of credibility are best left to the commission as the finder of fact.
{¶ 36} The employer next argues that the order is contradictory. The employer
asserts that the SHO specifically found that Linda did not provide any documentation to
substantiate the decedent's continued support since 2006 toward the mortgage to support
her finding that Linda was not dependent, but then she concluded that the decedent did
contribute to the mortgage when discussing Matthew's dependency. The employer then
points out that the SHO noted the decedent's contribution to the mortgage was the only
direct financial support provided. This cannot constitute "some evidence," claims the
employer.
No. 20AP-572 16
{¶ 37} The SHO recognized the tension between her findings relating to Matthew
and Linda. She acknowledged that, while not sufficiently determinative of the dependency
of Linda, she was persuaded the decedent did help to provide shelter for Matthew by
helping with the mortgage payment. The SHO indicated she was cognizant that she had
found the same evidence persuasive in Matthew's situation but not in Linda's situation;
however, she explained, Matthew is a lineal descendant and has significant physical
impairments that impact his ability to provide a level of income to cover living expenses,
and the decedent provided money, via his VA benefit, to keep a roof over Matthew's head
and paid for insurance that paid off the mortgage to ensure this continued, which was proof
he was aware Matthew might struggle to provide this for himself.
{¶ 38} Though somewhat nuanced, the SHO's explanation sufficiently distinguished
Linda's circumstances from Matthew's circumstances when it found Matthew to be
partially dependent but did not find Linda to be wholly or partially dependent, as it relates
to the payment of the mortgage. The SHO specifically noted that Matthew is a lineal
descendent with significant impairments that impact his ability to financially care for
himself. The SHO further explained that, while there was no obligation for the decedent to
pay the mortgage on the house after his divorce from Linda, he maintained insurance that
paid off the mortgage after his death. There was a distinction between Linda's and
Matthew's situations, and the SHO's reasoning was not contradictory. The SHO did not find
that the decedent never made any mortgage payments. With regard to Linda's dependency
claim, the SHO found that there was insufficient evidence that the decedent made
"continued" payments on the mortgage, and there was no evidence he was obligated to do
so by formal agreement or decree, thereby preventing her dependency claim. With regard
to Matthew's dependency claim, the SHO found that the decedent paid part of his VA
benefit to "help" provide Matthew's shelter by "helping" with the mortgage payment, and
he maintained insurance that paid off the mortgage at his death for Matthew's benefit.
Thus, the SHO believed there was evidence that the decedent "helped" with the mortgage
for Matthew's care, but there was not evidence that the decedent made "continued"
payments or was obligated to do so for the benefit of Linda. Therefore, the SHO's order was
not contradictory.
No. 20AP-572 17
{¶ 39} The employer next argues that it was an abuse of discretion to award lifetime
benefits to a 49-year-old son for the death of his 72-year-0ld father. The employer points
out that if Matthew had been found to be wholly dependent, he would likely have not
qualified for any award because his employment earnings would have exceeded the
quarterly cap imposed by R.C. 4123.59(B)(3)(a); yet, his award as a partial dependent, the
duration of which is determined by the commission, exceeds what he would have received
as a wholly dependent person. The employer also points out that decedent was almost 73
years old when he died and likely only had a few years remaining in the workforce; yet,
Matthew will be compensated for decades after his father would have left the workforce.
The employer argues the commission gave no reasons for why Matthew should receive
lifetime benefits.
{¶ 40} However, as indicated above, it is within the discretion of the commission to
determine the period of time that the compensation will be received. See Maglis at ¶ 11.
There was no abuse of discretion here. Although the employer points out some perceived
unfairness in the differences between the statutory provisions for whole and partial
dependency, there is no allegation that the SHO's order violates the statute. Matthew is deaf
and blind in one eye, and the SHO noted these are lifelong disabilities. Matthew still
requires care, support, and financial direction from his mother, and his impairments affect
his ability to obtain and maintain employment. His mother currently provides for his
nourishment, clothing, and other costs of living. Therefore, clearly the SHO had evidence
before her to find Matthew would require financial assistance for the remainder of his life,
and she adequately explained her rationale in the order. Therefore, the SHO did not abuse
her discretion when she awarded partial dependency benefits to Matthew for the rest of his
life.
{¶ 41} Accordingly, it is the magistrate's recommendation that this court should
deny the employer's complaint for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
No. 20AP-572 18
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).