[Cite as State ex rel. Mosley v. Indus. Comm., 2014-Ohio-1710.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Kelly R. Mosley, : 

 Relator, : 

v. : No. 13AP-127 

The Industrial Commission of Ohio, : (REGULAR CALENDAR) 

Stephen Buehrer, Administrator 

Bureau of Workers' Compensation, : 

and American Thermal Instruments, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

 

Rendered on April 22, 2014 

 

Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, and 

Brett Bissonnette, for relator. 

Michael DeWine, Attorney General, and Colleen C. Erdman,

for respondents Administrator, Bureau of Workers' 

Compensation and the Industrial Commission of Ohio. 

 

IN MANDAMUS 

ON OBJECTION TO THE MAGISTRATE'S DECISION 

BROWN, J. 

{¶ 1} Relator, Kelly R. Mosley ("claimant"), has filed this original action 

requesting that this court issue a writ of mandamus ordering respondent, Industrial 

Commission of Ohio ("commission"), to vacate its December 18, 2012 order that upheld 

the dismissal by the Ohio Bureau of Workers' Compensation ("bureau") of claimant's R.C. 
No. 13AP-127 2

4123.57 application for the determination of the percentage of permanent partial 

disability ("PPD") compensation, and to enter a commission order returning the 

application to the bureau for the scheduling of a medical examination by the bureau's 

medical section and the issuance of a bureau tentative order determining the percentage 

of PPD, even though relator is receiving permanent total disability ("PTD") compensation 

pursuant to a PTD award entered prior to the filing of his application for percentage of 

PPD. 

{¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R. 

53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the 

appended decision, including findings of fact and conclusions of law, and recommended 

that this court grant claimant's request for a writ of mandamus. Claimant has filed an 

objection to the magistrate's decision. 

{¶ 3} In his sole objection, claimant argues that the magistrate erred when he 

found that the bureau was not required to determine his percentage of PPD resulting from 

the organic personality syndrome because he is receiving PTD benefits for that condition. 

Although claimant agrees that he cannot receive PPD benefits while receiving PTD 

benefits for the same condition, and PTD benefits are typically paid for the remainder of 

the recipient's life, he contends that he is still entitled to a determination of his percentage 

of PPD for organic personality syndrome because (1) his surviving spouse or other 

dependents would be entitled to receive his PPD award upon his death, and (2) there are 

several circumstances under which PTD compensation could terminate prior to his death, 

such as a return to work, fraud or medical improvement that qualifies him for work. 

Claimant's argument rests largely upon his disagreement with the magistrate's 

interpretation of State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78 (1997). 

{¶ 4} The magistrate sufficiently summarized the facts from Burrows. The 

magistrate distinguished Burrows on two grounds. The magistrate first found that, unlike 

the instant case in which the bureau declined to process claimant's application, in 

Burrows, the bureau had already processed the claimant's application at the time of the 

Supreme Court of Ohio's adjudication; thus, the Supreme Court in Burrows did not issue 

a writ ordering the bureau to process the application. Instead, the Supreme Court in 

Burrows issued a writ to compel the commission to further consider the claimant's PPD 
No. 13AP-127 3

application. The magistrate also distinguished Burrows on the ground that Burrows

involved a living maintenance wage loss award that would presumably end during the 

claimant's lifetime, but the instant case involved a lifetime award of PTD. Because it is 

undisputed that a claimant cannot receive PTD and PPD at the same time, the magistrate 

reasoned ordering the commission to process the application for a determination of the 

percentage of PPD would be a vain act because he would never be entitled to PPD, given 

PTD would end only upon claimant's death. 

{¶ 5} We agree with the magistrate's reasoning. Claimant's contention that he is 

still entitled to a determination of a percentage of PPD because his surviving spouse or 

other dependents would be entitled to his PPD award upon his death is without merit. 

Both parties here agree that claimant cannot receive PTD and PPD simultaneously for the 

same condition and claim; thus, claimant himself would never be entitled to PPD. 

Claimant cites no authority for the proposition that a spouse or other dependent of a 

deceased workers' compensation claim can receive a PPD award to which the claimant 

was not entitled in his or her lifetime. A claimant's dependents would be entitled to the 

PPD award of the deceased claimant only if the claimant himself or herself were entitled 

to such an award during his or her lifetime. As claimant here is indisputably not entitled 

to such an award now or likely at any point in his lifetime because he is receiving PTD, his 

dependents also have no interest in a hypothetical award. 

{¶ 6} Furthermore, we find without merit claimant's argument contesting the 

magistrate's conclusion that determination of the percentage of PPD would be a "vain" 

act. As explained above, claimant contends there are several circumstances under which a 

claimant's PTD compensation may terminate prior to the claimant's death; thus, a 

percentage of PPD determination might not be in vain. However, until one of these 

circumstances occurs, if ever, claimant can receive no award for a percentage of PPD. 

Therefore, we agree that any determination of the percentage of PPD, at this juncture, 

would be a vain act. 

{¶ 7} We also agree with the magistrate that Burrows is clearly distinguishable on 

the ground that Burrows involved living maintenance wage loss that would presumably 

end during the claimant's lifetime, while the instant case involves a lifetime award of PTD. 

The outcome in Burrows is consistent with the two arguments claimant raises above in 
No. 13AP-127 4

support of his objection. Unlike the present case, in Burrows, the claimant's surviving 

spouse or dependents would be entitled to the PPD award because the claimant would 

have been entitled to the PPD award after the living maintenance wage loss compensation 

ended. In addition, the determination of the percentage of PPD in Burrows would not 

have been a vain act because living maintenance wage would eventually end, thereby 

entitling the claimant to PPD. Therefore, we agree that Burrows is not applicable to the 

circumstances in this case. For the foregoing reasons, claimant's objection is overruled. 

{¶ 8} After an examination of the magistrate's decision, an independent review of 

the record, pursuant to Civ.R. 53, and due consideration of claimant's objection, we 

overrule the objection and adopt the magistrate's findings of fact and conclusions of law. 

We issue a writ of mandamus ordering the commission to vacate the December 18, 2012 

order of its staff hearing officer that upheld the bureau's dismissal of claimant's 

application for the determination of the percentage of PPD and ordering the commission 

to enter an order that returns the matter to the bureau for the scheduling of a medical 

examination and the issuance of a tentative order in a manner consistent with the 

magistrate's decision. 

Objection overruled; 

writ of mandamus granted. 

SADLER, P.J., and CONNOR, J, concur. 

___________________ 
No. 13AP-127 5

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Kelly R. Mosley, : 

 Relator, : 

v. : No. 13AP-127 

The Industrial Commission of Ohio, : (REGULAR CALENDAR) 

Stephen Buehrer, Administrator 

Bureau of Workers' Compensation, : 

and American Thermal Instruments, 

 : 

 Respondents. 

 : 

 

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

Rendered on January 17, 2014 

 

Hochman & Plunkett Co., L.P.A., Gary D. Plunkett and Brett 

Bissonnette, for relator. 

Michael DeWine, Attorney General, and Justine S. Casselle,

for respondents Administrator, Bureau of Workers' 

Compensation and the Industrial Commission of Ohio. 

 

 IN MANDAMUS 

 

{¶ 9} In this original action, relator, Kelly R. Mosley, requests a writ of 

mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate 

the December 18, 2012 order of its staff hearing officer ("SHO") that upheld the dismissal 
No. 13AP-127 6

by the Ohio Bureau of Workers' Compensation ("bureau") of relator's R.C. 4123.57 

application for the determination for the percentage of permanent partial disability 

("PPD"), and to enter a commission order returning the application to the bureau for the 

scheduling of a medical examination by the bureau's medical section and the issuance of a 

bureau tentative order determining the percentage of PPD, even though relator is 

receiving permanent total disability ("PTD") compensation pursuant to a PTD award 

entered prior to his filing of his application for the percentage of PPD. 

Findings of Fact: 

{¶ 10} 1. On September 23, 2002, relator sustained an industrial injury while 

employed with respondent American Thermal Instruments, a state-fund employer. The 

industrial claim (No. 02-855088) is allowed for multiple physical and psychological 

conditions. There are 23 allowed conditions in the claim. 

{¶ 11} 2. Temporary total disability ("TTD") compensation was last paid on 

October 1, 2010. 

{¶ 12} 3. On November 13, 2009, relator filed an application for PTD 

compensation. 

{¶ 13} 4. Following a November 1, 2010 hearing, an SHO issued an order 

awarding PTD compensation starting October 1, 2010. Relying exclusively on a report 

from Dr. Mary Carole Curran, the SHO found that relator is unable to perform any 

sustained remunerative employment solely as a result of the medical impairment caused 

by the allowed psychological condition described as "organic personality syndrome." 

Therefore, the SHO found it unnecessary to consider or analyze the non-medical 

disability factors. 

{¶ 14} 5. On September 7, 2012, relator filed an application for the 

determination of the percentage of PPD. 

{¶ 15} 6. The bureau did not schedule relator for a medical examination by its 

medical section and thus the bureau did not issue a tentative order determining the 

percentage of PPD. 

{¶ 16} 7. On September 10, 2010, the bureau mailed an order dismissing relator's 

application. The order explains: 
No. 13AP-127 7

On 09/07/2012, the injured worker filed an application for a 

determination or an increase in the percentage of permanent 

partial disability as a result of his/her work-related 

injury/disease. The Ohio Bureau of Workers' Compensation 

(BWC) hereby advises it has dismissed the Application for 

Determination of Percentage of Permanent Partial Disability 

or Increase of Permanent Partial Disability (C-92) without 

prejudice for the reason (s) listed below. 

The Industrial Commission of Ohio by order dated 

10/01/2010 has found the injured worker to be permanently 

and totally disabled. 

{¶ 17} 8. Relator timely objected to the bureau's order. 

{¶ 18} 9. Following a November 1, 2012 hearing, a district hearing officer 

("DHO") issued an order that affirms the bureau's order. The DHO's order explains: 

The District Hearing Officer denies the appeal filed by the 

injured worker on 10/01/2012. The District Hearing Officer 

affirms the Administrator's order dated 09/10/2012. It is the 

finding of the District Hearing Officer that the Injured 

Worker's c-92 application for determination of percentage of 

permanent partial disability filed 09/07/2012 is dismissed. 

The District Hearing Officer notes that the injured worker 

was awarded statutory [sic] permanent total disability 

compensation by the Industrial Commission in this claim, 

02-855088 by order issued 10/01/2010. The allowed 

medical conditions listed on the order were: 

The injured worker filed an application for permanent 

partial disability on 09/07/2012. The Administrator issued 

an order on 09/10/2012 dismissing the Injured Worker's 

C92 application stating "The Industrial Commission of Ohio 

by order dated 10/01/2010 has found the injured worker to 

be permanently and totally disabled." The Injured Worker's 

representative acknowledge[d] at the hearing that the 

Injured Worker was not entitled to a permanent partial 

disability award for those conditions for which the Injured 

Worker has been granted permanent total disability 

compensation on 10/01/2010. Additionally, the Injured 

Worker's Representative stated that there are no new 

conditions that were not covered by the 10/01/2010 order. 
No. 13AP-127 8

The District Hearing Officer finds that the proper course of 

action is to dismiss the injured worker's c92 application filed 

09/07/2012. 

The District Hearing Officer finds the Injured Worker is 

currently receiving permanent total disability compensation 

in this claim. The injured worker is now requesting that he 

be provided permanent partial disability award under Ohio 

Revised Code 4123.57 (A) to run after the permanent total 

disability award in this claim and for that reason that the 

injured worker is now entitled to the examination and a 

designation of the award although the payout may be 

sometime after his death. 

{¶ 19} 10. Relator administratively appealed the DHO's order of November 1, 

2012. 

{¶ 20} 11. Following a December 18, 2012 hearing, an SHO issued an order 

affirming the DHO's order. The SHO's order explains: 

It is the finding and order of the Staff Hearing Officer that 

the Injured Worker's C-92 application, filed 09/07/2012, is 

dismissed. The Staff Hearing Officer finds that the Injured 

Worker was awarded statutory [sic] permanent total 

disability compensation by the Industrial Commission on 

10/2010, based upon the allowed conditions in this claim. 

This order is based upon Ohio Revised Code 4123.57 and the 

facts stated within the order. 

{¶ 21} 12. On February 26, 2013, the three-member commission mailed an order 

denying relator's request for reconsideration of the SHO's order of December 18, 2012. 

{¶ 22} 13. On February 19, 2013, relator, Kelly R. Mosley, filed this mandamus 

action. 

Conclusions of Law: 

{¶ 23} It is the magistrate's decision that this court issue a writ of mandamus, as 

more fully explained below. 

{¶ 24} On the date of relator's industrial injury, R.C. 4123.57 provided: 

Except as provided in this section, not earlier than forty 

weeks after the date of termination of the latest period of 

payments under section 4123.56 of the Revised Code, or not 

earlier than forty weeks after the date of the injury or 
No. 13AP-127 9

contraction of an occupational disease in the absence of 

payments under section 4123.56 of the Revised Code, the 

employee may file an application with the bureau of workers' 

compensation for the determination of the percentage of the 

employee's permanent partial disability resulting from an 

injury or occupational disease. 

Whenever the application is filed, the bureau * * * shall 

schedule the employee for a medical examination by the 

bureau medical section. The bureau shall send a copy of the 

report of the medical examination to the employee, the 

employer, and their representatives. Thereafter, the 

administrator of workers' compensation shall review the 

employee's claim file and make a tentative order as the 

evidence before the administrator at the time of the making 

of the order warrants. * * * 

* * * Unless the employee, the employer, or their 

representative notifies the administrator, in writing, of an 

objection to the tentative order within twenty days after 

receipt of the notice thereof, the tentative order shall go into 

effect and the employee shall receive the compensation 

provided in the order. * * * 

If the employee, the employer, or their representatives timely 

notify the administrator of an objection to the tentative 

order, the matter shall be referred to a district hearing officer 

who shall set the application for hearing with written notices 

to all interested persons. Upon referral to a district hearing 

officer, the employer may obtain a medical examination of 

the employee, pursuant to rules of the industrial 

commission. 

(A) The district hearing officer, upon the application, shall 

determine the percentage of the employee's permanent 

disability, * * * based upon that condition of the employee 

resulting from the injury or occupational disease and causing 

permanent impairment evidenced by medical or clinical 

findings reasonably demonstrable. The employee shall 

receive sixty-six and two-thirds per cent of the employee's 

average weekly wage, but not more than a maximum of 

thirty-three and one-third per cent of the statewide average 

weekly wage as defined in division (C) of section 4123.62 of 

the Revised Code, per week regardless for the average weekly 

wage, for the number of weeks which equals the percentage 

of two hundred weeks. * * * A staff hearing officer shall hear 
No. 13AP-127 10

an application for reconsideration filed and the staff hearing 

officer's decision is final. * * * 

* * * 

Compensation payable under this division accrues and is 

payable to the employee from the date of last payment of 

compensation, or, in cases where no previous compensation 

has been paid, from the date of the injury or the date of the 

diagnosis of the occupational disease. 

When an award under this division has been made prior to 

the death of an employee, all unpaid installments accrued or 

to accrue under the provisions of the award are payable to 

the surviving spouse, or if there is no surviving spouse, to the 

dependent children of the employee, and if there are no 

children surviving, then to other dependents as the 

administrator determines. 

{¶ 25} Analysis begins with the observation that the commission's PTD award is 

premised exclusively upon the report of Dr. Curran. The SHO's order of November 1, 

2010 finds that relator is unable to perform any sustained remunerative employment 

solely as a result of the medical impairment caused by the allowed psychological condition 

described as "organic personality syndrome." While the SHO's order states that the 

award is apportioned entirely to industrial claim number 02-855088, there is no 

indication that this apportionment in any way detracts from the commission's exclusive 

reliance upon one allowed condition—organic personality syndrome—to support the PTD 

award. That is to say, the PTD award is not premised upon any of the multitude of 

physical claim allowances. 

{¶ 26} It can be further observed that relator's September 7, 2012 application for 

the determination of the percentage of PPD appears to list all of the allowed conditions 

of the claim both physical and psychological, as the bases for the compensation request. 

{¶ 27} Notwithstanding the above observations, respondent commission here 

asserts that "[t]hrough its 2010 order, the commission determined that Mosley is 

permanently and totally disabled for the same twenty three conditions for which he now 

seeks to be found permanently and partially disabled." (Commission's brief, 8.) 
No. 13AP-127 11

{¶ 28} The commission's statement, as quoted, is incorrect. The commission 

determined that relator is permanently and totally disabled as a result of only one of the 

allowed conditions of the claim. The commission did not premise its PTD award on all 

of the allowed conditions as the commission incorrectly asserts. 

{¶ 29} Throughout its brief, the commission repeatedly asserts that relator has 

been determined to be permanently and totally disabled for the "same" conditions that 

underlie his application for a determination of a percentage of PPD. Those factual 

assertions are incorrect. 

{¶ 30} Compounding the commission's error here, relator also seems to fail to 

recognize that his PTD award is premised solely upon one allowed condition of the 

claim, i.e., the psychological condition described as "organic personality syndrome." At 

the very least, in his reply brief, relator does not protest the commission's incorrect 

factual assertions. 

{¶ 31} In State ex rel. Murray v. Indus. Comm., 63 Ohio St.3d 473 (1992), the 

court held that PPD and PTD compensation cannot be concurrently paid for the same 

conditions. State ex rel. Hoskins v. Indus. Comm., 87 Ohio St.3d 560 (2000). 

{¶ 32} Here, relator and the commission acknowledged the point of law set forth 

in Murray and reaffirmed in Hoskins. However, the parties fail to acknowledge the 

corollary to the Murray point of law as set forth in State ex rel. Missik v. Youngstown, 

65 Ohio St.3d 189 (1992). Significantly, the Missik decision issued shortly after the 

Murray decision. 

{¶ 33} In Missik, the claimant, George Missik, suffered three industrial injuries 

while working for the City of Youngstown: (1) claim number PE626746—"Bilateral 

sacroiliac injury," (2) claim number PEL4593—"Neck and shoulder," and (3) claim 

number PEL3212—"Injured back and left side." Missik at 190. 

{¶ 34} In 1986, Missik filed for PTD compensation, listing only PEL3212 and 

PEL4593 on his application. On the commission's behalf, Missik was examined by Dr. 

William G. Kraus who opined that Missik is permanently and totally disabled based 

upon the allowed conditions in claim numbers PEL4593 and PEL3212. The 

commission's PTD award specified "that the cost of this award be allocated 100% to 

claim number PEL-3212." Id.
No. 13AP-127 12

{¶ 35} Eventually, Missik sought PPD compensation in claim number PE626746 

and PEL4593. A DHO dismissed both applications based on the PTD award. 

Reconsideration was denied in both claims. 

{¶ 36} Issuing a writ, the Missik court explained: 

Pursuant to our decision in State ex rel. Litten v. Indus. 

Comm. (1992), 65 Ohio St.3d 178, 602 N.E.2d 624, we find 

that the commission's permanent total disability finding, by 

attributing the award's costs exclusively to PEL3212, did not 

encompass PEL4593 and PE626746. We thus find that the 

commission abused its discretion in dismissing claimant's 

permanent partial disability application in PEL4593. 

However, because PEL3212 and PE626746 both involve back 

injuries, the commission did not err in dismissing claimant's 

permanent partial disability application in the latter claim. 

State ex rel. Consolidation Coal Co. v. Indus. Comm. (1980), 

62 Ohio St.2d 147, 16 O.O.3d 166, 404 N.E.2d 141. 

Id. at 191. 

{¶ 37} In the magistrate's view, based upon the undisputed facts of record, the 

Missik decision compels the issuance of a writ of mandamus in this action. 

{¶ 38} The magistrate acknowledges that, unlike Missik, this action does not 

involve multiple industrial claims, but only the one industrial claim. Here, the PTD 

award is premised upon only 1 of the 23 allowed conditions of the claim. Therefore, by 

his application for the determination of the percentage of PPD in his sole industrial 

claim, relator was not seeking PPD compensation for the same conditions (or condition) 

that support his PTD award. Both the bureau and the commission failed to recognize 

this distinction in their orders, and, as a result, relator was denied a statutory right 

under R.C. 4123.57. 

{¶ 39} Clearly, under R.C. 4123.57, upon the filing of the application, the bureau 

was required to schedule relator for a medical examination by the bureau's medical 

section at least for the allowed physical conditions of the claim. Following the issuance 

of the medical report, the bureau was required to make a tentative order. 

{¶ 40} Because the bureau failed to schedule relator for a medical examination 

and to issue a tentative order, and the commission's hearing officers failed to order the 

bureau to do so, a writ of mandamus must issue 
No. 13AP-127 13

{¶ 41} The magistrate notes again that relator did not seek relief in this action 

pursuant to Missik. Rather, relator "concedes that he is not eligible to have the [PPD] 

award paid out until the cessation of his permanent and total disability compensation 

benefits." (Relator's brief, 12.) 

{¶ 42} Apparently, relator seeks a writ that would order the bureau to determine 

the percentage of PPD as to all 23 of the allowed conditions of the industrial claim 

following a bureau medical examination. Citing State ex rel. Burrows v. Indus. Comm., 

78 Ohio St.3d 78 (1997), relator argues that he has the right to a bureau determination 

of his percentage of PPD presumably as to all allowed conditions of his claim even 

though, concededly, the PPD award could not be lawfully paid while he receives PTD 

compensation. That is, relator argues that Burrows compels the bureau and 

commission to enter a PPD award that cannot be paid until cessation of his PTD award. 

The magistrate notes that R.C. 4123.58(A) provides that "the employee shall receive an 

award to continue until the employee's death." Thus, a PTD award is ordinarily a 

lifetime award. State ex rel. Smothers v. Mihm, 69 Ohio St.3d 566 (1994). In effect, 

relator seeks a PPD award that he would, in all likelihood, never receive payment for. 

Relator further contends that, upon his death, his PPD award would be paid to "his 

heirs," (Relator's brief, 17.) pursuant to the provision of R.C. 4123.57 stating that "all 

unpaid installments accrued or to accrue under the provisions of the award are payable 

to the surviving spouse, or if there is no surviving spouse, to the dependent children of 

the employee, and if there are no children surviving, then to other dependents as the 

administrator determines." 

{¶ 43} Relator's reliance upon Burrows is misplaced. A review of that case is in 

order. 

{¶ 44} Ruth Burrows injured her back, shoulder, and hip in October 1987 while 

working at Akron City Hospital. After allowance of her industrial claim, Burrows 

received TTD compensation pursuant to R.C. 4123.56(A) until November 4, 1990, when 

she entered a rehabilitation program. While participating in the rehabilitation program, 

Burrows received living maintenance benefits under R.C. 4121.63. She returned to work 

on January 14, 1991 and, due to her physical limitations, assumed a position that did not 
No. 13AP-127 14

pay as well as her former job. As a result, Burrows qualified for living maintenance 

wage loss compensation under R.C. 4121.67(B). 

{¶ 45} On May 12, 1992, Burrows applied for a determination of her percentage of 

PPD. The bureau initially awarded PPD compensation in a tentative order. Upon the 

hospital's objection, a DHO determined Burrows' percentage of PPD to be at 18 percent. 

The hospital requested reconsideration, arguing that: (1) R.C. 4123.57(A) claimants 

could not apply for PPD under the statute until 40 weeks after their last payment for 

living maintenance wage loss compensation, and (2) Burrows had filed her application 

while still receiving this compensation. An SHO agreed with the hospital and dismissed 

Burrows' application as untimely on the authority of R.C. 4123.63, 4121.67(B), and 

4123.57. 

{¶ 46} Burrows then filed in this court a complaint for a writ of mandamus. 

Citing the plain language of R.C. 4123.57, this court granted the writ and returned the 

cause to the commission for an appropriate determination of Burrows' PPD eligibility. 

An appeal as of right was taken to the Supreme Court of Ohio. 

{¶ 47} In Burrows, the Supreme Court held that Burrows' application for a 

determination of her percentage of PPD was not barred by the R.C. 4123.57 waiting 

period. The R.C. 4123.57 waiting period is to be measured from the last date of receipt 

of R.C. 4123.56 compensation. For purposes of the waiting period, neither R.C. 

4121.67(B) nor 4123.63 is considered to be R.C. 4123.56 compensation. 

{¶ 48} However, the Burrows court also held that percentage of PPD awards 

under R.C. 4123.57(A) cannot be paid to claimants receiving either living maintenance 

or living maintenance wage loss compensation. 

{¶ 49} As earlier noted, at the time of the filing of her application for the 

determination of her percentage of PPD, Burrows was receiving living maintenance 

wage loss compensation. In the last paragraph of its decision, the Burrows court states: 

Having found that R.C. 4123.57(A) imposes the forty-week 

waiting period for TTD paid specifically pursuant to R.C. 

4123.56, notwithstanding that claimants cannot be paid 

living maintenance wage loss compensation and R.C. 

4123.57(A) PPD at the same time, we affirm the judgment of 

the court of appeals that grants a writ of mandamus to 
No. 13AP-127 15

compel the commission's further consideration of Burrows's 

PPD application. 

 

Id. at 82. 

{¶ 50} Here, relator contends that, in Burrows "the Supreme Court found that the 

issue of whether a permanent partial disability award was payable must be separated into 

two steps. First, the initial threshold of whether the Application must be determined must 

be addressed. If so, then the second issue, whether benefits are payable to the claimant, 

can be addressed." (Relator's brief, 10.) 

{¶ 51} Relator fails to explain how he arrived at his "two steps" theory from a 

reading of Burrows. (See relator's brief, 10.) However, the magistrate notes that, unlike 

the instant case, in Burrows, the bureau processed Burrows' application. In fact, the 

bureau awarded PPD compensation in a tentative order that presumably followed a 

bureau medical examination. In Burrows, unlike the instant case, the application was 

not dismissed until reconsideration by the SHO. Clearly, the Burrows court did not 

issue a writ ordering the bureau to process the application. In Burrows, the application 

had already been processed at the time of the court adjudication. 

{¶ 52} However, this court did issue a writ that "returned the cause to the 

commission for an appropriate determination of Burrows' PPD eligibility." Id. at 79. 

This court's judgment was affirmed and the Burrows court did issue a writ "to compel 

the commission's further consideration of Burrows' PPD application." Id. at 82.

{¶ 53} Unlike the instant case involving the bar of a lifetime PTD award, Burrows 

involved living maintenance wage loss compensation under R.C. 4121.67(B). Although 

Burrows was receiving living maintenance wage loss compensation at the time she filed 

her application for the determination of her percentage of PPD, presumably, payment of 

living maintenance wage loss compensation will end during Burrows' lifetime. It may 

very well have ended by the time of the issuance of the writ by the Burrows court. In 

any event, the issuance of a writ requiring the commission to determine Burrows' 

"eligibility" makes perfect sense. 

{¶ 54} Notwithstanding the above analysis, Burrows does not here mandate a 

writ returning the matter to the commission or bureau for an adjudication of the 
No. 13AP-127 16

application based upon all allowed conditions of the claim. For as long as relator is 

receiving his lifetime PTD award, granting relator's specific request here would indeed 

compel the bureau and commission to perform a vain act. 

{¶ 55} In short, relator's reliance upon Burrows to support his request for a writ 

of mandamus is misplaced. 

{¶ 56} Accordingly, for all the above reasons, it is the magistrate's decision that 

this court issue a writ of mandamus ordering the commission to vacate the 

December 18, 2012 order of its SHO that upheld the bureau's dismissal of relator's 

application for the determination of the percentage of PPD, and to enter an order that 

returns the matter to the bureau for the scheduling of a medical examination and the 

issuance of a tentative order in a manner consistent with this magistrate's decision. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

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).