[Cite as State ex rel. Ford Motor Co. v. Indus. Comm., 2015-Ohio-181.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State of Ohio ex rel. : 

Ford Motor Company, 

 : 

 Relator, 

 : 

v. : No. 13AP-762 

The Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Bryan Craft, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on January 22, 2015 

 

Timothy J. Krantz, for relator. 

Michael DeWine, Attorney General, and Stephen D. Plymale, 

for respondent Industrial Commission of Ohio. 

Bevan & Associates, and David S. Bates, for respondent 

Bryan Craft. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

TYACK, J. 

{¶ 1} Ford Motor Company filed this action in mandamus seeking a writ to 

compel the Industrial Commission of Ohio ("commission") to relieve it of a duty to pay 

the Ohio Bureau of Workers' Compensation ("BWC") funds to reimburse it for payments 

to Bryan Craft. 

{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case 

was referred to a magistrate to conduct appropriate proceedings. The parties stipulated 
No. 13AP-762 2 

the pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision 

containing detailed findings of fact and conclusions of law appended hereto. The 

magistrate's decision includes a recommendation that we deny the request for a writ. 

{¶ 3} Ford Motor Company has filed objections to the magistrate's decision. 

Counsel for the commission has filed a memorandum in response. The case is now before 

the court for a full independent review. 

{¶ 4} The facts in the case are not in dispute. Ford Motor Company has not 

objected to the findings of fact, so the findings of fact in the magistrate's decision are 

hereby adopted. 

{¶ 5} Ford Motor Company does object to the application of the law to the 

uncontested facts. Specifically, the objections are: 

OBJECTION NO. 1

The Magistrate erred in failing to find that DWRF benefits 

constitute compensation and therefore, falling under the 2-

year "limitation" provision in R.C. §4123.52, regarding 

retroactive payment of compensation. 

OBJECTION NO. 2

Although the Magistrate found that the BWC failed to 

properly administer the claimant's claim, the Magistrate 

erred in failing to find that the "doctrine of laches" precludes 

the BWC from charging Ford DWRF payments going back 

more than thirteen-years. 

{¶ 6} Bryan Craft was found to be entitled to permanent total disability 

compensation back in the 1990's. Early in the period when he began receiving the 

benefits, repeated inquiries were made to ascertain whether he was entitled to additional 

compensation from the Disabled Workers' Relief Fund ("DWRF"). Because of the money 

he was receiving from Social Security Disability, he was found to not be entitled to 

payments from DWRF at that time. The inquiries from BWC on that topic then stopped 

for many years. 

{¶ 7} Eventually BWC sent a questionnaire to Craft to determine if his eligibility 

had changed. Upon receiving the answers to its questions, the BWC determined that 
No. 13AP-762 3 

Craft had been entitled to funds from DWRF for many years. The total due him was the 

sizable sum of $121,442.86, covering almost 13 years of back payments. 

{¶ 8} Ford Motor Company did not want to pay the $121,442.86 to reimburse the 

BWC and has fought paying it ever since. At first Ford Motor Company resisted paying by 

pursuing appeals through the commission. When that failed, Ford Motor Company filed 

this mandamus action. 

{¶ 9} The issues Ford Motor Company argues via its objections to the magistrate's 

decision are the same issues argued before the magistrate. We cannot make significant 

improvements upon the detailed analysis set forth by our magistrate, including exposition 

of our past decisions on the key points. See the magistrate's decision appended hereto. 

{¶ 10} We overrule the objections to the magistrate's decision and adopt the 

findings of fact and conclusions of law in the magistrate's decision. As a result, we deny 

the request for a writ of mandamus. 

Objections overruled; writ denied. 

KLATT and DORRIAN, JJ., concur. 

 

 
No. 13AP-762 4 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State of Ohio ex rel. : 

Ford Motor Company, 

 : 

 Relator, No. 13AP-762 

 : 

v. (REGULAR CALENDAR) 

 : 

The Industrial Commission of Ohio 

and Bryan Craft, : 

 

 Respondents. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on October 29, 2014

 

Timothy J. Krantz, for relator. 

Michael DeWine, Attorney General, and Stephen D. Plymale, 

for respondent Industrial Commission of Ohio. 

Bevan & Associates, and David S. Bates, for respondent 

Bryan Craft. 

 

IN MANDAMUS 

{¶ 11} Relator, Ford Motor Company, has filed this original action requesting that 

this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio 

("commission") to vacate its order by awarding Disabled Workers' Relief Fund ("DWRF") 

benefits to respondent Bryan Craft ("claimant") beyond two years and ordering the 

commission to find that the back payments are subject to the two-year limitation in R.C. 

4123.52, or, in the alternative, find that the Ohio Bureau of Workers' Compensation 
No. 13AP-762 5 

("BWC") failed to comply with the statute that requires prompt inquiry of the permanent 

total disability ("PTD") compensation status of an injured worker in order to ascertain 

DWRF eligibility and relieve relator of the responsibility of paying claimant beyond the 

two-year period. 

Findings of Fact: 

{¶ 12} 1. Claimant sustained three separate industrial injuries while employed by 

relator, a self-insured employer. 

{¶ 13} 2. Following a hearing held December 7, 1990, the commission issued an 

interlocutory order awarding claimant PTD compensation in his 1975 claim for the period 

December 8, 1990 to March 19, 1991. 

{¶ 14} 3. In an order mailed July 2, 1991, the commission extended the award of 

PTD compensation to September 1, 1991. 

{¶ 15} 4. Following a hearing on October 30, 1991, the commission awarded 

claimant PTD compensation from September 2, 1991 and continuing. Claimant's rate of 

pay was $119. 

{¶ 16} 5. Claimant's date of birth is December 28, 1934. As such, he was 

approximately 57 years of age when the commission issued its final order awarding him 

PTD compensation. 

{¶ 17} 6. Earlier, in January 1991, the BWC sent a letter to claimant advising him 

that he may be entitled to DWRF benefits and requested information regarding his Social 

Security Disability ("SSD") benefits. The letter explains: 

When a claimant has been declared permanently and totally 

disabled (PTD) by the Ohio Industrial Commission, he or she 

may be entitled to receive a supplemental award from the 

Disabled Workers' Relief Fund (DWRF). Under the 

provisions of this fund, the benefits a claimant receives from 

the Bureau and the disability benefits received from the 

Social Security Administration are combined. The total of 

these benefits is subtracted from the figure established as the 

DWRF entry level. If the combined amount of PTD and 

disability social security is under our entry level amount, 

then the claimant is paid DWRF benefits. 

At the present time we are attempting to determine your 

eligibility to participate in the DWRF fund. However, before 

we can complete our computations we need additional 
No. 13AP-762 6 

information regarding your social security benefits. We are, 

therefore, requesting that you provide us with a statement 

indicating the rate of the disability social security benefits 

you have received, before [M]edicare deductions, from 

12/8/90 to 3/19/91. 

{¶ 18} 7. Claimant supplied the BWC with the requested information and 

indicated that he was then receiving $953 per month in SSD benefits. 

{¶ 19} 8. In a letter dated February 7, 1991, the BWC informed claimant that, 

because his total monthly compensation was currently over the maximum entitlement per 

week, he was not entitled to receive DWRF benefits at that time. 

{¶ 20} 9. Between February 1991 through October 1995, the BWC sent 

correspondence continuing to indicate that, based on his weekly rate, claimant was 

ineligible to receive DWRF benefits. 

{¶ 21} 10. In October 1998, the BWC sent a letter addressed to relator and relator's 

representative asking for information so the BWC could determine whether or not 

claimant was entitled to receive DWRF benefits. 

{¶ 22} 11. The stipulated evidence contains a document apparently from claimant's 

file identified as a claim inquiry and date stamped October 7, 2005. That document lists 

claimant's birth date, the date on which he turned 65 years of age, as well as the date PTD 

compensation began. 

{¶ 23} 12. It is undisputed that claimant turned 65 years of age on December 28, 

1999. 

{¶ 24} 13. In October 2012 (nearly 13 years after claimant turned 65), the BWC 

sent a questionnaire to relator indicating the BWC was reviewing claims paying PTD 

compensation and asking relator to confirm claimant's rate of pay. 

{¶ 25} 14. Relator responded indicating that claimant's rate of pay was $119. 

{¶ 26} 15. In an order mailed November 7, 2012, the BWC notified claimant that 

he was eligible to receive DWRF benefits and also informed claimant that he was entitled 

to receive a back payment. Specifically, the order provides: 

You are eligible because [t]hrough communication with the 

Self Insured Employer, BWC learned that you are being paid 

permanent total disability and may be eligible to receive a 

DWRF benefit. Based on your permanent total disability 
No. 13AP-762 7 

rate, you became eligible to receive DWRF effective 

12/01/1999 at retirement. Your permanent total disability 

rate is less than the DWRF entry level. 

Effective with the payment of 11/20/2012, your DWRF 

weekly rate will be $231.60. 

You also are entitled to receive a back payment in the 

amount of [$]121,442.86. This payment covers dates from 

12/01/1999 to 11/03/2012. 

You should receive your back payment within 10 days of 

receiving this order. Please note that this is not a change to 

your PTD workers' compensation payment. If you have any 

deductions being taken from your PTD, they are not reflected 

in this order but will continue to be deducted. 

You will receive 14 checks that equal your back payment of 

$121,442.85 mentioned above. 

{¶ 27} 16. Relator appealed and a hearing was held before a staff hearing officer 

("SHO") on March 6, 2013. The SHO specifically found that claimant was entitled to 

receive DWRF benefits and rejected relator's argument that because the BWC failed to 

determine claimant's eligibility in a prompt manner, the payment should be limited to the 

two-year limitation found in R.C. 4123.52, stating: 

Said Disabled Workers' Relief Fund benefits are ordered to 

commence effective 12/01/1999. 

Based on this order, the Injured Worker is entitled to 

Disabled Workers' Relief Fund benefits from 12/01/1999 

through 11/03/2012, and continuing, based on eligibility of 

Disabled Workers' Relief Fund benefits. 

Counsel for the self-insuring employer contends the aboveordered Disabled Workers' Relief Fund benefits are 

inappropriate. Counsel contends the Administrator failed to 

determine the Injured Worker's eligibility for these benefits 

in a prompt manner. Counsel contends an unreasonable 

length of time has lapsed and the benefits should be limited 

to the two year limitation of Ohio Revised Code Section 

4123.52. The employer's counsel's contention is not found 

persuasive. 
No. 13AP-762 8 

The Staff Hearing Officer finds the Injured Worker remains 

eligible for the Disabled Workers' Relief Fund benefits 

ordered herein. Further, the benefits are not limited by the 

two year period referenced in Ohio Revised Code 4123.52. 

The Tenth Appellate District Court of Appeals addressed this 

specific question in the decision set forth in The Goodyear 

Tire and Rubber Co. et al., v. The Ohio Bureau of Workers' 

Compensation 1999 Ohio App. LEXIS 4494. The Court 

rejected a contention that there is a two year limit on any 

back benefit award for Disabled Workers' Relief Fund 

benefits. Specifically, the Court found that the Administrator 

is not statutorily barred from awarding back Disabled 

Workers' Relief Fund benefits to Injured Workers and billing 

the self-insuring employers for said benefits. Accordingly, 

the Staff Hearing Officer finds the Injured Worker is entitled 

to Disabled Workers' Relief Fund benefits from 12/01/1999 

through 11/03/2012 and continuing, based on eligibility of 

Disabled Workers' Relief Fund benefits. 

{¶ 28} 17. Relator filed a request for reconsideration asking the commission to 

exercise its continuing jurisdiction arguing the BWC's failure to make inquiries to relator 

concerning claimant for 14 years, the doctrine of laches should be applied to a limited 

amount of back award to two years, and to R.C. 4123.52. 

{¶ 29} 18. Following a hearing on May 21, 2013, the commission determined that 

it did not have authority to exercise continuing jurisdiction. 

{¶ 30} 19. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 31} For the reasons that follow, it is this magistrate's decision that relator has 

not demonstrated that the commission abused its discretion and this court should deny 

relator's request for a writ of mandamus. 

{¶ 32} The Supreme Court of Ohio has set forth three requirements which 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). 

{¶ 33} The facts in this case are not in dispute. Claimant sustained a work-related 

injury in 1975 and the DWRF provisions would likely apply to him once he turned 65 

years of age and was no longer receiving SSD benefits. Claimant became eligible for 
No. 13AP-762 9 

DWRF benefits December 28, 1999. It is further undisputed that it was not until 

November 7, 2012 that the BWC notified both claimant and relator that claimant became 

eligible for DWRF benefits on his 65th birthday and informed claimant that he was 

entitled to receive back payment in the amount of $121,442.86. 

{¶ 34} Relator does not deny that it is statutorily required to reimburse the BWC 

dollar-for-dollar for all DWRF benefits paid to claimant. Relator's entire argument rests 

on its assertion that because the BWC failed to promptly notify relator that claimant was 

eligible to receive DWRF benefits, the BWC should be collaterally estopped from 

obtaining reimbursement from relator for any amounts owed to claimant beyond the twoyear limitation provided in R.C. 4123.52. 

{¶ 35} The BWC asserts that, as a self-insured employer, relator was and is 

responsible for maintaining all records of workers' compensation claims and has a duty to 

comply with all workers' compensation laws to make timely payments to its injured 

workers. Further, the BWC argues that, pursuant to this court's ruling in Goodyear Tire 

& Rubber Co. v. Bur. of Workers' Comp., 10th Dist. No. 98AP-1153 (Sept. 28, 1999), R.C. 

4123.52 does not apply to DWRF benefits. 

{¶ 36} In 1953, the General Assembly enacted R.C. 4123.412, which created DWRF 

benefits. DWRF benefits are paid to injured workers who are permanently and totally 

disabled as a result of occupational injury or disease and whose workers' compensation 

benefits, when combined with SSD benefits, fall below a statutorily mandated amount. 

{¶ 37} Originally, R.C. 4123.411 required the commission to levy an assessment 

against all employers at a specified rate. In 1986, the General Assembly amended R.C. 

4123.411, dramatically altering the mechanism by which DWRF was funded. Pursuant to 

the amendment, non-self-insured private fund employers, county and taxing district 

employers, and the state of Ohio as an employer, remain subject to the employer payroll 

rate assessment. However, R.C. 4123.411(C) requires that self-insured employers directly 

compensate the BWC for all amounts paid to qualifying injured workers regardless of the 

date of their injury. Under this provision, the BWC makes DWRF benefits to the qualified 

injured workers and thereafter collects the payment from the self-insured employer. 

 R.C. 4123.416 requires: 

The administrator of workers' compensation shall promptly 

require of each [self-insured] employer * * * a verified list of 
No. 13AP-762 10 

the names and addresses of all persons to whom the 

employer is paying workers' compensation on account of 

permanent and total disability and the evidence respecting 

such persons as the administrator reasonably deems 

necessary to determine the eligibility of any such person to 

participate in the disabled workers' relief fund. 

{¶ 38} Ohio Adm.Code 4123-17-29(B)(2) requires self-insured employers to be 

billed on a semi-annual basis for DWRF benefits paid to injured workers. 

{¶ 39} Relator argues that its reimbursement to the DWRF fund is limited to the 

two-year look back of R.C. 4123.52, which provides, in pertinent part: 

The commission shall not make any modification, change, 

finding, or award which shall award compensation for a back 

period in excess of two years prior to the date of filing 

application therefor. 

{¶ 40} For the reasons that follow, the magistrate finds relator's argument lacks 

merit. 

{¶ 41} In Goodyear Tire, a group of self-insured employers brought a declaratory 

judgment action seeking a determination of their liabilities to the DWRF fund under the 

amendments to R.C. 4123.411 which altered the DWRF funding mechanism. These selfinsured employers argued that the BWC lacked authority to bill them for DWRF benefits 

accrued to injured workers prior to the semi-annual billing period for which the bill is 

assessed, regardless of whether the funds were actually disbursed by the BWC during the 

billing period. In the alternative, they argued that, if the BWC is permitted to bill for 

accumulated unpaid benefits, a two-year statutory limit exists to limit how far back such 

payments may reach. 

{¶ 42} This court rejected those arguments, stating: 

Appellants initially contend that an employee's entitlement 

to DWRF payments should commence only upon the BWC's 

issuance of a determination of eligibility for subsidy based 

upon a shortfall in the claimant's combined workers' 

compensation and Social Security disability benefits. Under 

this interpretation, the BWC would have no statutory 

authority to make the large retroactive lump-sum payments 

to claimants for benefits accruing between the date of their 

eligibility for DWRF payments (based upon combined 

workers' compensation and social security benefits which fall 

below the statutory DWRF minimum) and the date upon 
No. 13AP-762 11 

which the BWC makes an actual determination of claimant's 

eligibility. We find no support for this proposition in the 

statutes governing DWRF benefits. 

Id. at 2. 

{¶ 43} This court specifically noted that an injured worker is entitled to receive 

DWRF benefits without filing an application. This court noted that DWRF benefits begin 

at the time an injured workers' specified workers' compensation and SSD benefits fall 

below the statutory floor and not at the time the injured workers' file was reviewed and 

evaluated by the BWC. Specifically, this court stated: 

Appellants alternatively argue that, if back DWRF can be 

paid by BWC, the period for which such back benefits could 

be paid, is limited by the express two-year statute of 

limitations upon changes to past awards by the Industrial 

Commission, R.C. 4123.52. DWRF benefits differ statutorily, 

however, from general workers' compensation benefits, 

which require a timely filed application. R.C. 4123.84 and 

4123.85. In contrast, the above-cited language from the 

DWRF statutes establishes that there is no duty on the 

claimant to apply for DWRF benefits in order to be eligible, 

since eligibility is "without application" and governed solely 

by the formula set forth in R.C. 4123.414. We therefore reject 

appellants' contention that there is a two-year limit on any 

back benefit award for DWRF claimants. 

Id. at 3. 

{¶ 44} In reaching that conclusion, this court relied on several decisions from the 

Supreme Court of Ohio, including Thompson v. Indus. Comm., 1 Ohio St.3d 244 (1982). 

In Thompson, the Supreme Court specifically determined that DWRF benefits are 

separate and distinct from workers' compensation benefits, and the fund is a separate 

entity from the state insurance fund. In Wean Inc. v. Indus. Comm., 52 Ohio St.3d 266 

(1990), the Supreme Court concluded that the application of the 1986 amendments to 

claims with injury dates prior thereto was not unconstitutional retroactively because the 

amendments only required the self-insured employer to pay a "current responsibility." As 

applied prospectively, self-insured employers were only responsible to reimburse the 

BWC for all past, present, and future employees eligible for DWRF benefits. In Dayton 

Walther Corp. v. Indus. Comm., 10th Dist. No. 97APE06-746 (Apr. 30, 1998), this court 
No. 13AP-762 12 

extended the reasoning of Wean to conclude that the term "current responsibility" 

addressed all current DWRF outlays regardless of the date of injury in relation to the date 

the employer became self-insured. The application of the above case law leads to only one 

conclusion: the commission did not abuse its discretion by requiring relator to reimburse 

the BWC for DWRF benefits paid to claimant beyond the two-year period provided in R.C. 

4123.52. 

{¶ 45} Relator makes several arguments urging this court to reconsider its 

determination that DWRF benefits are not compensation. Specifically, relator points to 

McHale v. Indus. Comm., 63 Ohio App. 479 (3d Dist.1940), wherein that court found that 

payment by the commission of the fees to a physician attending to an injured worker 

constituted the payment of compensation awarded on the account of injury within the 

meaning of former R.C. 4123.52. Relator specifically points to the following language: 

The word "compensation" as used in Section 35 of Article II 

of the Constitution of Ohio, relating to workmen's compensation, comprehends all payments and disbursements of 

every character made by the Industrial Commission to or for 

the benefit of workmen and their dependents, for death, 

injuries or occupational diseases, occasioned in the course of 

such workmen's employment. 

Id. at 484. 

{¶ 46} For several reasons, the magistrate finds the McHale decision does not alter 

the outcome here. 

{¶ 47} First, McHale was decided 40 years before the Supreme Court of Ohio's 

decision in Thompson and nearly 60 years before this court's decision in Goodyear Tire. 

Second, McHale involved that portion of R.C. 4123.52 which provides that no 

modification or change, finding or award shall be made with respect to disability 

compensation after ten years from the last payment of compensation or benefits. In such 

a situation, an injured worker must make an application or file a motion. However, 

because DWRF benefits are payable without the filing of an application, this court ruled 

that the two-year look back period did not apply. 

{¶ 48} Relator also points to Armco, Inc. v. N. Assur. Co. of Am., 99 Ohio App.3d 

545 (12th Dist.1994). In that case, an insurance company argued that it was not liable to 

indemnify an employer for DWRF benefits because the insurance policy required it only 
No. 13AP-762 13 

to indemnify for payments made as workers' compensation benefits. Citing Thompson, 

the insurance company argued that DWRF benefits are relief welfare and not workers' 

compensation. 

{¶ 49} In Armco, the court stated that the Supreme Court of Ohio's determination 

in Thompson that DWRF benefits were not compensation was, at best, elusive noting that 

the court created this "fiction," "out of fear that a ruling declaring the DWRF program 

unconstitutional would make 'a cruel mockery of the laudable purpose [of the 

constitutional provision allowing for a workers' compensation program.]' Id., 1 Ohio St.3d 

at 249." Armco, Inc. at 547. Despite this observation, the court followed the Supreme 

Court's decision and found that, although DWRF benefits were not workers' 

compensation, they were other benefits Armco was required to pay under the terms of its 

policy. The court was not asked to define the term compensation for purposes of the 

workers' compensation law. 

{¶ 50} Relator also points to this court's decision in Employers Reinsurance Corp. 

v. Worthington Custom Plastics, Inc., 109 Ohio App.3d 550 (10th Dist.1996). Similar to 

the Armco case, this court was asked to consider the express terms of agreements between 

insurance companies and self-insured employers. This court found that DWRF benefits 

were "benefits," as that term was used in the reinsurance policies. Just like the Armco

case, this case did not involve consideration of or definition of DWRF benefits under the 

workers' compensation laws. 

{¶ 51} Applying the above-discussed cases, the magistrate finds that relator's 

argument that the commission cannot award claimant DWRF benefits in excess of two 

years back lacks merit. 

{¶ 52} Having determined that the commission could award claimant retroactive 

DWRF benefits beyond the two-year period, the magistrate now considers relator's 

argument that the doctrine of laches applies. For the reasons that follow, the magistrate 

disagrees. 

{¶ 53} In order for the doctrine of laches to apply, one must establish: (1) an 

unreasonable delay or lapse of time in asserting a right, (2) the absence of an excuse for 

such delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice 

to the other party. State ex rel. Case v. Indus. Comm., 28 Ohio St.3d 383 (1986). 
No. 13AP-762 14 

Relator's argument is premised in part on the fact that the BWC conducted an internal 

claim inquiry in October 2005. At that time, the BWC had information that claimant had 

turned 65 years old 6 years earlier and relator asserts the BWC should have notified them 

at that time. 

{¶ 54} The commission counters relator's argument noting that relator's status as a 

self-insured employer is a privilege and that relator has the ultimate responsibility for 

administering workers' compensation claims to its injured workers. The BWC asserts that 

relator, as claimant's employer, would have known his birth date and when he would turn 

65 years of age. Further, relator would have known the relevance of turning 65 in terms of 

claimant's receipt of SSD benefits. The BWC argues that the responsibility lies with 

relator. 

{¶ 55} It can be said that both relator and the BWC failed to properly administer 

claimant's claim. For several years, the BWC inquired about claimant's age and the rate at 

which he was being paid PTD compensation specifically to determine whether or not 

claimant was eligible for DWRF benefits. Likewise, relator was aware that claimant would 

likely become eligible for DWRF benefits when he turned 65 years of age because of the 

date of injury and the low rate at which he was being paid PTD compensation. The BWC 

failed to promptly notify relator that claimant had become eligible for DWRF benefits and 

relator failed to pay benefits which were owed to claimant. Relator appears to argue that, 

if the BWC forgets to mail a bill to an employer and enough time passes, the employer is 

no longer responsible for paying that bill. Relator owes claimant the money. Just because 

the BWC pays injured workers their DWRF benefits and then bills the employer for those 

sums does not change the fact that relator is the party ultimately liable to claimant for 

those amounts. 

{¶ 56} Relator was not assessed a penalty for its failure to timely pay benefits nor 

has relator been charged interest on the benefits due and owed to claimant. While this is 

a large bill, there is no prejudice here where there is no dispute relator was obligated to 

pay the benefits. While relator will argue that this outcome is not fair, the magistrate asks 

if it would be fair to ask other employers to contribute the money to pay these benefits. 

That is what would happen if the money came from a different fund. To the extent that 

relator asserts that this money should come from the surplus fund, the magistrate 
No. 13AP-762 15 

disagrees. The surplus fund is used to reimburse self-insured employers who pay money 

to an injured worker whose claim is ultimately disallowed. In that situation, the employer 

paid compensation it was determined was not owed to an injured worker. Here, there is 

no dispute: claimant was and is entitled to the money and relator is the party statutorily 

obligated to pay the money. It is unfortunate that the BWC failed to promptly notify 

relator; however, the magistrate finds that the commission did not abuse its discretion in 

finding that relator remained liable for those amounts. Because it was indicated that the 

claimant would receive 14 checks, relator may have been able to request that it reimburse 

the BWC in 14 payments. However, the payment of benefits to claimant was and is 

relator's responsibility. 

{¶ 57} At oral argument, counsel for relator argued that it was unknown what rate 

the BWC used to calculate the back award, specifically pointing out that different rates 

would have applied for different years. Relator did not make this argument until now. 

Pursuant to State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78 (1997), this 

court should not consider relator's question at this time. 

{¶ 58} Based on the forgoing, it is this magistrate's decision that relator has not 

demonstrated that the commission abused its discretion in finding that relator was liable 

to reimburse the BWC for the entire amount of DWRF benefits paid to claimant because 

the two-year limitation of R.C. 4123.52 does not apply. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

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).