[Cite as State ex rel. Dunlap v. Indus. Comm., 2016-Ohio-8131.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Myong Dunlap, : 

 

 Relator, : 

 

v. : No. 16AP-101 

 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and Ryan Michael, Inc., 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

 

Rendered on December 13, 2016 

 

On brief: The Bainbridge Firm, LLC, and Carol L. 

Herdman, for relator. 

On brief: Michael DeWine, Attorney General, and Patsy A. 

Thomas, for respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

BROWN, J. 

{¶ 1} Relator, Myong Dunlap, has filed this original action requesting this court 

issue a writ of mandamus ordering respondent, Industrial Commission of Ohio 

("commission"), to do the following: (1) vacate its order wherein the commission 

exercised its continuing jurisdiction over the motion filed by the Ohio Bureau of Workers' 

Compensation ("BWC") finding that she had been overpaid temporary total disability 

("TTD") compensation and that the BWC was entitled to recoup that overpayment, 

pursuant to the fraud provisions of R.C. 4123.511(K), (2) vacate its subsequent order 

denying her request that the commission exercise its continuing jurisdiction to correct a 
No. 16AP-101 2

mistake of law, and (3) find there was no overpayment and/or that relator was not guilty 

of fraud. 

{¶ 2} This court referred the matter to a court-appointed magistrate pursuant to 

Civ.R. 53 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 relator's request for a writ of mandamus. The 

commission and relator have filed objections. 

{¶ 3} In its sole objection, the commission argues the magistrate erred when she 

found the commission abused its discretion in declaring that only the TTD compensation 

for the closed period of March 1, 2011 through January 30, 2013 be recouped under the 

fraud provisions of R.C. 4123.511(K). The commission contends the magistrate has 

negated the commission's position as the trier of fact and has recommended the issuance 

of a writ of mandamus solely on her own conclusion that the version of the C-84 form 

relator signed between March 1, 2011 and January 30, 2013 did not inform relator that 

her unpaid activities were improper. The commission claims that the issue is not whether 

the form contained certain wording, but whether relator knowingly concealed her activity 

in order to receive benefits to which she was not entitled, consistent with the elements for 

civil fraud. The commission asserts that it relied on multiple C-84 forms in which relator 

attested she had not worked since 2008, videos showing relator walking through the store 

and climbing a ladder, relator's intentional downplaying of her activities and involvement 

at the store, and concealing the activities she was performing at King J.'s from the 

commission and her treating physician, which evinces her knowledge that her activities 

were prohibited while receiving TTD compensation. 

{¶ 4} However, the magistrate's determination addresses the issue the 

commission claims is pertinent here: whether relator knowingly concealed her activities 

in order to receive benefits to which she was not entitled. In its order, the commission 

relied on the fact that the newer C-84 applications were modified to include that unpaid 

activities that directly earned income for someone else were considered "work" in order to 

find relator had knowledge of the falsity of her representations that she was not working. 

Given the commission's rationale, the magistrate found that the commission should have 

concluded that relator was overpaid only from the time she signed the modified C-84 
No. 16AP-101 3 

application that included the broader definition of "work." The magistrate's reasoning 

addresses the issue of whether relator knowingly concealed her work activity, which 

directly relates to a required element of fraud. The magistrate found it could not be 

presumed that relator knowingly concealed her work activity until she signed the 

modified C-84 application with the expanded definition of "work" on January 31, 2013. 

The Supreme Court of Ohio has noted that, although "work" in this context is generally 

considered to be labor exchanged for pay, the exception that unpaid activities that directly 

generate income for a separate entity can be considered "work" "is not intuitive, nor is it 

within the realm of the average claimant's experience." State ex rel. McBee v. Indus. 

Comm., 132 Ohio St.3d 209, 2012-Ohio-2678, ¶ 10. Thus, we find the magistrate did not 

err when she found the version of the C-84 form relator signed between March 1, 2011 

and January 30, 2013 did not inform relator that her unpaid activities were improper, so 

relator could not have knowingly concealed her work activities until she signed the 

modified C-84 form with the expanded definition of "work" on January 31, 2013. The 

commission's argument is without merit, and we overrule its objection. 

{¶ 5} In her sole objection, relator argues the magistrate erred when she found 

that relator knowingly committed fraud from January 31 to August 6, 2013 because there 

was insufficient evidence to support the finding that relator knew her actions constituted 

"work" inconsistent with the receipt of TTD compensation. Relator argues that, per the C84 application, unpaid activity constitutes "work" only if it is "not minimal," and that 

phrase has not been defined by the BWC, commission, or any court. Relator contends that 

no discussion or analysis of whether her activities were more than minimal was 

undertaken by the commission. Thus, she claims there was not some evidence to support 

the commission's finding that she engaged in fraud for any portion of time questioned by 

the BWC. 

{¶ 6} Although the commission did not make an explicit finding with regard to 

the "not minimal" requirement on the C-84 form, the finding is implicit, and we find there 

was some evidence to demonstrate that relator's work was not minimal. Although there is 

no explicit definition of "minimal," several cases have determined whether the activities in 

question were "minimal." In State ex rel. Ford Motor Co. v. Indus. Comm., 98 Ohio St.3d 

20, 2002-Ohio-7038, the court found the claimant's activities were minimal when he 
No. 16AP-101 4 

hired workers to do the lawn care in his lawn care business, while his participation was 

limited to signing paychecks, fueling lawnmowers weekly, and driving the mowers onto a 

truck. 

{¶ 7} In State ex rel. Perez v. Indus. Comm., ___Ohio St.3d ___, 2016-Ohio5084, the court found the claimant's work at his auto repair business was not minimal 

when he was ordering and picking up automobile parts, scheduling appointments, looking 

under the hood of vehicles, answering the telephone, receiving payments from customers, 

and talking with customers—activities that were more than passive. 

{¶ 8} In State ex rel. Meade v. Indus. Comm., 10th Dist. No. 04AP-1184, 2005-

Ohio-6206, this court found that activities were not minimal when the claimant took an 

active and physically demanding role in a pizza business, conducting repairs, delivering 

pizzas, serving customers, and conducting various other work-related activities. 

{¶ 9} In State ex rel. Cassano v. Indus. Comm., 10th Dist. No. 03AP-1227, 2005-

Ohio-68, we found the activities were not minimal when the claimant continued to 

operate his car dealership, doing such tasks as performing mechanical work on cars and 

attending auto auctions. 

{¶ 10} In State ex rel. Honda of Am. Mfg. Co. v. Indus. Comm., 113 Ohio St.3d 5, 

2007-Ohio-969, the claimant owned a scrapbook store and was observed answering a 

customer's questions, pointing out displays, and speaking on the telephone as well as once 

using the cash register. The court found the claimant's mere presence at the store did not 

itself disqualify her from receiving TTD compensation, and that even if she had engaged 

in some business activities, those activities were geared toward promoting goodwill and 

generated income only secondarily. 

{¶ 11} In the present case, there was some evidence to demonstrate that relator's 

activities were not minimal. Here, relator worked at the beauty supply store three to four 

days per week, worked from the opening of the store until closing, operated the cash 

register while standing behind the front counter, greeted customers, walked with 

customers throughout the store, assisted customers with locating items, moved and 

climbed a step ladder to reach an item, provided details about products to customers, 

bagged purchased items, and trained a new employee. An employee for the business also 

told investigators that relator had told her that she had been working full-time at the store 
No. 16AP-101 5

for two to three years but was cutting her hours because of back pain. These activities 

were not minimal. They were physically demanding and more than passive, as in Perez 

and Meade above. Relator's actions were also greater than being a "mere presence," as the 

court in Honda found to be minimal, given the physical and broad nature of her tasks. 

Relator's actions were that expected of a typical employee. For these reasons, the 

magistrate did not err when she found that relator knowingly committed fraud from 

January 31 to August 6, 2013. Relator's objection is overruled. 

{¶ 12} Accordingly, after an examination of the magistrate's decision, an 

independent review of the record, pursuant to Civ.R. 53, and due consideration of the 

commission's and relator's objections, we overrule their objections and adopt the 

magistrate's findings of fact and conclusions of law. Relator's request for a writ of 

mandamus is granted to the extent set forth in the magistrate's decision. 

Objections overruled; writ of mandamus granted. 

DORRIAN, P.J., and TYACK, J., concur. 

__________________ 
[Cite as State ex rel. Dunlap v. Indus. Comm., 2016-Ohio-8131.]

APPENDIX A 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Myong Dunlap, : 

 

 Relator, : 

 

v. : No. 16AP-101 

 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

Ryan Michael, Inc., : 

 

 Respondents. : 

 

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

Rendered on August 22, 2016

 

The Bainbridge Firm, LLC, and Carol L. Herdman, for 

relator. 

Michael DeWine, Attorney General, and Patsy A. Thomas, 

for respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 13} Relator, Myong Dunlap, has filed this original action requesting this court 

issue a writ of mandamus ordering respondent, Industrial Commission of Ohio 

("commission"), to vacate its order wherein the commission exercised its continuing 

jurisdiction over the motion filed by the Ohio Bureau of Workers' Compensation ("BWC") 

finding that she had been overpaid temporary total disability ("TTD") compensation, that 

the BWC was entitled to recoup that overpayment pursuant to the fraud provisions of R.C. 

4123.511(K), and the commission's subsequent order denying her request that the 
No. 16AP-101 7

commission exercise its continuing jurisdiction to correct a mistake of law, and order the 

commission to find there was no overpayment and/or that she was not guilty of fraud. 

Findings of Fact:

{¶ 14} 1. Relator sustained a work-related injury on October 15, 2008 and her 

workers' compensation claim has been allowed for the following conditions: 

Sprain left hip and thigh; sprain left ankle; lumbosacral 

sprain/strain; left ankle subtalar joint synovitis with edema; 

L4-L5 protruding disc; L4-L5 tear; substantial aggravation of 

pre-existing depressive disorder; sacroiliitis. 

{¶ 15} 2. Relator received a period of TTD compensation based on her allowed 

physical conditions. That period of TTD compensation was terminated when the 

commission determined that her allowed physical conditions had reached maximum 

medical improvement ("MMI"). 

{¶ 16} 3. On October 4, 2011, relator filed a C-86 motion requesting the payment 

of TTD compensation based on her allowed psychological condition. Her motion was 

supported by medical documentation from Scott L. Donaldson, Ph.D., who opined that 

her allowed psychological condition prevented her from returning to her former position 

of employment. Payments were awarded beginning November 10, 2010. 

{¶ 17} 4. Following the granting of TTD compensation, a letter was mailed to 

relator explaining that her physician of record must continue to provide complete 

documentation of disabling condition and further provided as follows: 

You are not entitled to temporary total benefits if you meet 

any of the conditions below. 

[One] You return to any type of work for any employer. 

{¶ 18} 5. Although her allowed physical conditions had reached MMI, relator 

continued treating with Charles May, D.O., who noted that she continued to complain of 

lumbar pain with radiation down the left hip and lower extremity to her toes. 

{¶ 19} 6. Concerning her allowed psychological condition, there are several 

independent medical examinations in the record, including the following: 

{¶ 20} (a.) Ken H. Tecklenburg, Ph.D., performed an independent medical 

examination to determine whether relator's claim should be allowed for a psychological 
No. 16AP-101 8

condition. In his March 28, 2011 report, after discussing the medical evidence which he 

reviewed, including evidence pertinent to relator's allowed physical conditions and the 

psychological evaluation of relator's physician of record (Dr. Donaldson), Dr. Tecklenburg 

noted that relator self-related that her typical day involves staying at home, she avoids 

driving because of pain, does not frequent restaurants, is no longer active in church, and 

she avoids people because they are too nosey. 

{¶ 21} (b.) Paul A. Deardorff, Ph.D., examined relator to determine the percentage 

of permanent partial impairment due to her allowed psychological condition. In his 

November 2, 2011 report, Dr. Deardorff discussed the medical evidence, noted that relator 

self reported that she does not leave home often, has no hobbies, noted that she is 

continually depressed, and finds little enjoyment in previously enjoyed activities. 

{¶ 22} (c.) Richard L. Barnett, Ph.D., examined relator and rendered an opinion 

regarding her percentage of permanent partial disability. In his December 5, 2011 report, 

Dr. Barnett noted that relator self-reported that she does very little cooking because she 

cannot stand for very long, no longer enjoys many of the activities she formally enjoyed, 

does not like being around crowds and avoids standing in line, rarely goes anywhere but 

will occasionally go to church, becomes frustrated easily, and reacts in anger or by 

withdrawing. 

{¶ 23} (d.) Mark E. Reynolds, M.D., evaluated relator regarding the limitations of 

her psychological condition. In his March 6, 2012 report, Dr. Reynolds discussed the 

medical records which he reviewed and opined that relator had not reached MMI. He 

noted that relator was consistently described by most evaluators, including himself, as 

evidencing severe symptomology, and that the recommended treatment with 

antidepressant medications should proceed. He opined that based on the severity of her 

psychiatric symptomology, she would be unable to return to her former position of 

employment despite any reasonable restriction or modification, and would likewise be 

unable to return to any other form of employment. 

{¶ 24} (e.) Rakesh Ranjan, M.D., conducted an independent medical evaluation 

concerning relator's limitations due to her allowed psychological condition. In his 

October 22, 2012 report, Dr. Ranjan noted that relator self-reported that she does not 

cook or clean and does not pursue any hobbies, nor does she socialize or drive. He further 
No. 16AP-101 9

opined that her allowed psychological condition had not reached MMI and that, in light of 

severe and debilitating psychological symptoms, she was unable to return to any gainful 

employment. 

{¶ 25} 7. On July 12, 2013, the BWC filed a motion seeking to terminate relator's 

TTD compensation. 

{¶ 26} 8. The matter was heard before a district hearing officer ("DHO") on 

August 7, 2013. The BWC's motion was granted based on the June 14, 2013 report of Dr. 

Tosi who opined that her allowed psychological condition had reached MMI and did not 

prohibit her from returning to her former position of employment. The DHO terminated 

relator's TTD compensation as of August 7, 2013, the date of the hearing. 

{¶ 27} 9. The BWC's Special Investigations Unit ("SIU") received information 

from an anonymous source that relator was working at King J, a beauty supply store, and 

that she worked Tuesdays, Thursdays, Saturday, and some Fridays. The SIU conducted 

surveillance. The investigative notes provide, in pertinent part, as follows: 

8/6/13 * * * - Commencing at 2:15 p.m., Plush and Fraud 

Analyst Lajuana Brooks (Brooks) entered the King J store 

located on Lockbourne Avenue and conducted an undercover 

operation. Upon entering the store, agents observed 

DUNLAP standing behind the front counter, working at the 

cash register. DUNLAP greeted the agents and introduced 

herself as "Mia." DUNLAP walked the agents throughout the 

store, assisting them with locating several items. At one 

point, DUNLAP moved and climbed a step ladder in order to 

reach a hairpiece. In the course of conversation, DUNLAP 

provided background and details about the products, and 

informed agents she worked three days per week - Tuesday, 

Thursday, and Saturday open to close. Brooks purchased a 

hairpiece and DUNLAP completed the transaction at the 

cash register, bagging the item and returning change to 

Brooks. Brooks asked DUNLAP to write down information 

pertaining to a hairpiece she was looking for that, according 

to DUNLAP, the store did not have in stock. Another Asian 

employee wrote the information down and then DUNLAP 

took that piece of paper and added her name, "Mia," along 

with the business name and phone number. The agents 

exited the store at approximately 2:33 p.m. with DUNLAP 

still inside. 

*It should be noted DUNLAP remained standing during the 

duration the agents were in the store. 
No. 16AP-101 10 

* * * 

10/10/13 * * * - Commencing at 4:03 p.m. Koehl and Dearth 

entered the King J store located on Lockbourne Avenue and 

conducted an undercover operation. An Asian male at the 

front of the store confirms DUNLAP was working. DUNLAP 

exited from a room at the back of the store and assisted the 

agents. Dearth indicated she was looking to purchase a wig. 

DUNLAP assisted Dearth in locating and trying on several 

hairpieces; explaining each one and the difference between 

natural and synthetic hairs, how to care for each type, etc. 

DUNLAP informed agents she typically worked three days a 

week running the cash register and taking care of the money, 

and that currently she was training a new employee. 

DUNLAP told the agents she "does hair" but was not 

currently working as a stylist because she didn't have a salon. 

DUNLAP stated she does however keep her license current. 

DUNLAP confirmed she would put a hold on a hairpiece 

Dearth was interested in, and gave Dearth a business card. 

The agents departed the store at 4:40 p.m. with DUNLAP 

still inside. 

*It should be noted DUNLAP remained standing during the 

duration the agents were in the store. 

(Emphasis sic.) 

{¶ 28} SIU agents interviewed James Lee, the owner of King J. Lee informed the 

agents that relator was not an employee, that she and his wife were best friends, and that 

relator came to the store because she was bored. When informed that the agents had 

witnessed relator helping customers and running the cash register, Lee responded that 

relator did operate the cash register and assist customers, and had been doing so for the 

past one to two years. However, Lee indicated that he did not pay relator. 

{¶ 29} SIU agents contacted Lee's accountant who indicated that he had no payroll 

records for relator, but that it was possible payments had been made to her in cash, yet he 

had no record of those payments. 

{¶ 30} SIU agents interviewed two employees of King J who both indicated that 

relator had worked there while they worked there, that she ran the cash register and 

assisted customers, but neither of them knew whether or not she was paid. Mariata Sylla 

indicated further that relator had told her that she had been working full time at King J 
No. 16AP-101 11

for two to three years, but was cutting her hours back because of back pain. Ashley 

McCormic indicated that, during the short time she worked there, relator was present 

almost, if not every day, that McCormic worked. Further, McCormic indicated that she 

left her job with King J because they paid her off the books and, to the extent they paid 

her with a check, they never took out any deductions. 

{¶ 31} SIU investigators interviewed relator's physician of record, Dr. Donaldson, 

and provided him with surveillance video and employee statements. Dr. Donaldson 

indicated that relator did not tell him she was working at King J and that he would not 

have certified TTD compensation had he known she was working. 

{¶ 32} 10. On October 27, 2014, the BWC filed its motion requesting that the 

commission find that relator had been overpaid TTD compensation from March 1, 2011 

through August 7, 2013, and further asking for a finding of fraud. 

{¶ 33} 11. The BWC's motion was heard before a DHO on November 24, 2014. 

The DHO concluded that relator had been overpaid TTD compensation because she was 

engaged in activities that were inconsistent with the claimed psychological inability to 

return to any form of employment. The DHO relied on the video surveillance which 

contrasted sharply with the C-84s and Medco-14s completed by Dr. Donaldson who 

indicated that she was unable to perform any work due to the allowed psychological 

condition and Dr. Donaldson's statement, after he viewed the surveillance video, that he 

would not have certified the period of TTD compensation had he known she was working. 

{¶ 34} Thereafter, the DHO considered whether or not a finding of fraud was 

appropriate and concluded that it was not, stating: 

The SID conducted surveillance at King J on 08/06/2013, 

and undercover video that was obtained showed the Injured 

Worker working behind the front counter as a cashier. The 

Injured Worker also walked the SID agents through the 

store, helping them locate various items. This included 

standing on a stepladder for several minutes to retrieve a 

hairpiece, and bending over to look at products. The video 

depicts the Injured Worker effortlessly performing her 

physical activities without hesitation, and interacting with 

the agents in a professional and courteous manner. The 

Injured Worker provided details about different products, 

and told the agents that she worked three days a week, 10:00 

A.M. to 8:00 P.M. She completed a cash register transaction 
No. 16AP-101 12

for the purchase of a hairpiece, and provided the agents with 

a slip of paper with her name and business number. 

* * * 

The Bureau of Workers' Compensation's request for a finding 

of fraud is denied. The prime facie elements of fraud are, (1) 

a representation, or where there is a duty to disclose, 

concealment of fact; (2) which is material to the transaction 

at hand; (3) made falsely, with the knowledge of its falsity, or 

with such disregard and recklessness as to whether it is true 

or false that knowledge may be inferred; (4) with the intent 

of misleading another into relying upon it; (5) justifiable 

reliance upon the representation or concealment; and (6) a 

resulting injury proximately caused by the reliance. The 

District Hearing Officer finds that the Bureau of Workers' 

Compensation has not established all elements to a 

preponderance of the evidence. 

The absence of remuneration factors into the issue of fraud. 

There is insufficient evidence in file that the Injured Worker 

was paid for her activities. The owner of the store, James 

Lee, told investigators that he did not pay the Injured 

Worker. He stated that his wife and the Injured Worker were 

best friends and that his wife would occasionally buy the 

Injured Worker dinner. Investigators also contacted Mr. 

Lee's business accountant, Sam Lee, CPA. Sam Lee indicated 

that the Injured Worker's name was not listed anywhere in 

the payroll records, or in any other documentation as having 

been paid by the business * * *. The SID also obtained the 

Injured Worker's bank account records from Fifth-Third 

bank from 10/03/2008 to 03/27/2013 * * *. There were no 

checks from King J that were deposited or cashed and no 

record of recurring cash deposits from 03/01/2011 through 

08/06/2013. 

The documents that the Injured Worker used to apply for 

ongoing temporary total disability compensation advised 

that she was not permitted to work while receiving 

temporary total disability compensation. However, the 

documents did not define "work" and did not indicate that 

even unpaid activities may sometimes be considered work. 

Based on the lack of proof of wages, and an insufficient 

showing that the Injured Worker recognized that her unpaid 

activities may have constituted work, the District Hearing 

Officer finds that a fraud declaration cannot stand. 
No. 16AP-101 13 

{¶ 35} 12. Both relator and the BWC appealed and the matter was heard before a 

staff hearing officer ("SHO") on February 10, 2015. The SHO affirmed the prior DHO 

order in all respects, including denying the BWC's request for a finding of fraud. 

Specifically, the SHO stated: 

The Administrator obtained statements from the Injured 

Worker, from Mr. Lee, the owner of the store, bank records 

of the Injured Worker, and the statement of the Employer's 

accountant. There are no records of payments to the Injured 

Worker from Mr. Lee. There are records of payment to the 

other co-workers, typical of wages being paid by check. The 

Administrator sought evidence of payment, and did not find 

this evidence after aggressively investigating. This evidence 

supports the conclusion that the Injured Worker's 

statements, and the statements of Mr. Lee, that the Injured 

Worker was not paid are credible. While it is apparently true 

that Mr. Lee would occasionally take the Injured Worker to 

dinner, there is insufficient evidence to find that the Injured 

Worker received remuneration for her activities as a store 

clerk at King J. 

The Administrator points to case law which would support 

the conclusion that, in a proper case, activities may be 

inconsistent with an award of temporary total disability even 

in the absence of remuneration, and that in a clear case a 

fraud finding may stand. In particular, the Administrator 

points to language on some of the C-84s signed by the 

Injured Worker which specifically advise that in a case in 

which activities generate income for a third person, they may 

constitute work. A finding of fraud requires a finding of a 

representation or concealment which is made falsely. While 

the Injured Worker plainly did exaggerate the extent of her 

disability, and down play[ed] the extent of her activities, a 

full finding of fraud requires a full finding of false 

representation, and there is insufficient evidence to conclude 

the Injured Worker was subjectively cognizant of an 

obligation to inform either her psychologist or the 

Administrator of unpaid activities. 

{¶ 36} 13. On March 13, 2015, both relator and the BWC filed appeals from the 

SHO's order. 

{¶ 37} 14. The matter was heard before the commission on April 28, 2015. The 

commission denied relator's appeal, but granted the BWC's appeal. The commission 

agreed with the findings and analysis of the DHO and the SHO regarding the conclusion 
No. 16AP-101 14 

that relator was indeed engaged in work activity which was inconsistent with her alleged 

inability to work due to the psychological condition. Additionally, the commission found 

that the work activity relator performed was not minimal and that it directly generated 

income for another entity. 

{¶ 38} Thereafter, the commission addressed the issue of fraud and determined 

that the BWC had presented sufficient evidence of fraud, and ordered that the 

overpayment be recouped pursuant to the fraud provisions of R.C. 4123.511(K). The 

commission acknowledged that the earliest C-84s specifically asked relator if she was 

working to which she had responded no. However, the commission noted that the C-84 

application was later modified by the BWC and specifically asked relator if she was 

working in unpaid activities that were not minimal and that directly earned income for 

someone else. The commission noted that relator responded that she was not. 

Specifically, the commission stated: 

The Commission finds the Injured Worker had a duty to 

disclose she was working while receiving temporary total 

disability compensation. The original C-84 applications 

specifically asked the Injured Worker if she was working, to 

which she answered "no." The C-84 application was later 

modified by BWC, and the application signed by the Injured 

Worker on 01/31/2013, asked if the Injured Worker was 

working in unpaid activities that were not minimal and 

directly earned income for someone else. The Injured 

Worker again answered "no." The Commission has found the 

persuasive evidence documents the Injured Worker was 

engaged in unpaid activities directly earning income for 

someone else. The Injured Worker ran a cash register and 

made sales generating income for King J. The Injured 

Worker concealed this information from the Administrator. 

The Commission further finds the Injured Worker had a duty 

to disclose to treating and examining physicians the true 

extent of her mental and physical functional capabilities as 

she clearly would have been aware of the activities she was 

performing. 

The concealment was material to the matter at hand because 

it enabled the Injured Worker to continue to receive 

temporary total disability compensation to which she was 

not otherwise entitled. 
No. 16AP-101 15

The Injured Worker is further found to have had knowledge 

of the falsity of the representations made to BWC. The 

original C-84 applications specifically asked the Injured 

Worker if she had worked in any capacity during the period 

of disability. The C-84 form did not ask if the Injured Worker 

was engaged in unpaid employment. The modified C-84 

form, signed on 01/31/2013, specifically asked the Injured 

Worker if she was engaged in unpaid activities, yet the 

Injured Worker continued to deny such activities. The 

Commission finds the C-84 form is clear and unambiguous 

that the Injured Worker was not entitled to receive 

temporary total disability compensation if she was engaged 

in the activities she was performing, but she continued to 

knowingly deny she was working. Further, the Injured 

Worker knew she was misrepresenting to her physicians her 

functional capabilities as she clearly would have been aware 

of the activities she was performing. 

The Injured Worker concealed her activities and the 

misrepresentations of her abilities were done with the intent 

of misleading her physicians into certifying temporary total 

disability and with the intent the Bureau of Workers' 

Compensation would rely upon the certifications of disability 

to pay temporary total disability compensation. 

The treating physician and the Bureau of Compensation 

justifiably relied on the misrepresentation and continued to 

certify and pay temporary total disability compensation. 

The State Insurance Fund, as well as all injured workers and 

employers who rely upon the State Insurance Fund, suffered 

an injury by the issuance of benefits to which the Injured 

Worker was not entitled. 

The Commission finds the six elements of fraud are found to 

have been met, and the overpayment is to be recouped 

pursuant to the fraud provisions of R.C. 4123.511(K). 

The Commission notes the Injured Worker did not attend 

the 02/10/2015 hearing, and thus no contrary or clarifying 

evidence was offered at hearing. All evidence has been 

reviewed and considered. 

{¶ 39} The commission's order was typed May 18, 2015, but was not mailed until 

June 23, 2015. 
No. 16AP-101 16

{¶ 40} 15. On August 21, 2015, relator filed a motion asking the commission to 

invoke its continuing jurisdiction to correct a clear mistake of law which resulted from the 

commission's non-compliance with time requirements for the hearing of an appeal and 

the subsequent order as found in R.C. 4123.511(D) and (E), stating: 

Now comes the Injured Worker, by and through her 

attorney, hereby requesting that the Industrial Commission 

invoke it[s] continuing jurisdiction to correct a clear mistake 

of law, resulting from its noncompliance with ORC 

section 4123.511(E); wherein the legislature mandated that 

an appeal filed in response to a Staff Hearing Officer Order 

under subsection (D) must be heard within forty five days 

after the filing of the notice of appeal with the ensuing order 

published within seven days following the hearing. Neither 

statutorily prescribed mandate had been met. Therefore, the 

Injured Worker would respectfully request that the order 

published on June 23, 2015 be vacated and the underlying 

order published following the hearing held on 

February 10, 2015 be reinstated. 

{¶ 41} 16. The matter was heard before a DHO on October 15, 2015. While noting 

that the commission's hearing was not held 45 days after the filing of the appeals and the 

commission did not issue its order within 7 days after the conclusion of the hearing, the 

DHO noted that the statute does not provide a remedy to relator for the failure of the 

commission to comply with that portion of the statute. Finding that there was no 

authority to provide the remedy requested, the DHO denied the motion. 

{¶ 42} 17. Relator's appeal was heard before an SHO on November 24, 2015. The 

SHO affirmed the prior DHO order and denied relator's motion on the same grounds, 

stating: 

The Staff Hearing Officer finds the Injured Worker has failed 

to establish grounds upon which the Industrial Commission 

could assert continuing jurisdiction over the decision issued 

by the full Industrial Commission on 06/23/2015. 

Specifically, the Staff Hearing Officer finds the Injured 

Worker has failed to identify a mistake of law which can be 

remedied by R.C. 4123.511. While the Injured Worker 

accurately points out that the hearing by the full Industrial 

Commission was conducted one day outside of the 45 day 

time frame mandated in R.C. 4123.511(E) and the 

Commission's decision was issued beyond the seven day time 

frame set forth in that statutory section, the Staff Hearing 
No. 16AP-101 17

Officer finds the statute does not provide any remedy to the 

Injured Worker for a failure of the full Commission to 

comply with those statutory time frames. 

Accordingly, the Staff Hearing Officer concludes the 

Industrial Commission is without authority to grant the 

relief requested by the Injured Worker which is that the 

decision, issued on 06/23/2015, be vacated and the 

underlying Staff Hearing Officer order, issued 02/27/2015, 

be reinstated. 

{¶ 43} 18. Relator's further appeal was refused by order of the commission mailed 

December 30, 2015. 

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

Conclusions of Law:

{¶ 45} For the reasons that follow, it is this magistrate's decision that this court 

should deny relator's request for a writ of mandamus. 

{¶ 46} 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). 

{¶ 47} Relator first argues that the commission abused its discretion when it 

refused to exercise its continuing jurisdiction to correct a clear mistake of law. 

Specifically, relator argues that because the commission did not hold the hearing within 

45 days after the filing of her notice of appeal and failed to issue its order within 7 days 

after the conclusion of the hearing, the commission has a clear legal duty to exercise its 

continuing jurisdiction and to vacate the commission's order which found that she had 

committed fraud. 

{¶ 48} R.C. 4123.511(E) provides, in pertinent part: 

Upon the filing of a timely appeal of the order of the staff 

hearing officer issued under division (D) of this section, the 

commission or a designated staff hearing officer, on behalf of 

the commission, shall determine whether the commission 

will hear the appeal. If the commission or the designated 

staff hearing officer decides to hear the appeal, the 

commission or the designated staff hearing officer shall 
No. 16AP-101 18

notify the parties and their respective representatives in 

writing of the time and place of the hearing. The commission 

shall hold the hearing within forty-five days after the filing of 

the notice of appeal and, within seven days after the 

conclusion of the hearing, the commission shall issue its 

order affirming, modifying, or reversing the order issued 

under division (D) of this section. 

{¶ 49} In the present case, both a DHO and SHO found that relator had been 

involved in work activities which were inconsistent with the receipt of TTD compensation 

and found that she was overpaid that compensation for the closed period March 1, 2011 

through August 6, 2013. Thereafter, both the DHO and SHO determined that the BWC 

had not met its burden of proving fraud because there was insufficient evidence to 

conclude that relator was subjectively cognizant of an obligation to inform either her 

psychologist or the administrator of her unpaid activities at King J. 

{¶ 50} Both relator and the BWC timely appealed the SHO's order on 

March 13, 2015. As such, relator argues that the commission was required to hold the 

hearing on the appeals no later than April 27, 2015, 45 days after March 13, 2015. 

Because the hearing was not held until one day later, April 28, 2015, relator argues that 

the commission's order must be vacated. Further, relator argues that the commission was 

required to issue its order within seven days after the conclusion of the hearing. The 

hearing concluded on April 28, 2015, and relator argues that the commission was 

required to issue its order by May 5, 2015. It is undisputed that the commission's order 

was typed May 18, 2015 and mailed June 23, 2015. Relator argues that the commission's 

failure to issue its order within seven days constitutes a second reason why the 

commission's order must be vacated and, as such, the earlier SHO's order finding that she 

did not commit fraud must be the commission's last word on the subject. 

{¶ 51} In response, the BWC argues that the failure of the commission to hold the 

hearing within 45 days of the filing of the appeal and the failure to issue the order within 7 

days of the hearing, did not deprive the commission of jurisdiction and further, the statute 

does not provide any relief, let alone the relief relator seeks here. The Supreme Court of 

Ohio discussed statutory language requiring agencies to comply within certain time 

frames in In re Davis, 84 Ohio St.3d 520 (1999). Specifically, the court stated: 
No. 16AP-101 19

It is true that where a statute contains the word "shall," the 

provision will generally be construed as mandatory. 

Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 

102, 56 Ohio Op.2d 58, 271 N.E.2d 834, paragraph one of the 

syllabus. "A mandatory statute may be defined as one where 

noncompliance * * * will render the proceedings to which it 

relates illegal and void." See State ex rel. Jones v. Farrar

(1946), 146 Ohio St. 467, 471-472, 32 Ohio Op. 542, 544, 66 

N.E.2d 531, 534. 

But, even with "shall" as the operative verb, a statutory time 

provision may be directory. "As a general rule, a statute 

which provides a time for the performance of an official duty 

will be construed as directory so far as time for performance 

is concerned, especially where the statute fixes the time 

simply for convenience or orderly procedure." Id. at 472, 32 

Ohio Op. at 544, 66 N.E.2d at 534. This is so "unless the 

nature of the act to be performed or the phraseology of the 

statute or of other statutes relating to the same subjectmatter is such that the designation of time must be 

considered a limitation upon the power of the officer." State 

ex rel. Smith v. Barnell (1924), 109 Ohio St. 246, 255, 142 

N.E. 611, 613. 

Id. at 521-22. 

{¶ 52} See also, Hardy v. Delaware Cty. Bd. of Revision, 106 Ohio St.3d 359, 

2005-Ohio-5319, wherein the court stated: 

" '[A]s a general rule, a statute providing a time for the 

performance of an official duty will be construed as directory 

so far as time for performance is concerned, especially where 

the statute fixes the time simply for convenience or orderly 

procedure.' " State ex rel. Ragozine v. Shaker, 96 Ohio St.3d 

201, 2002 Ohio 3992, 772 N.E.2d 1192, P13, quoting State ex 

rel. Jones v. Farrar (1946), 146 Ohio St. 467, 32 O.O. 542, 

66 N.E.2d 531, paragraph three of the syllabus. 

Id. at 363. 

{¶ 53} Finding that the statute here and the use of the word "shall" is directory, 

and finding that relator was not prejudiced by the one-day delay for the hearing and the 

subsequent delay for the commission's order, the magistrate finds that relator is not 

entitled to the relief she seeks. 
No. 16AP-101 20 

{¶ 54} Next, relator argues that the commission abused its discretion by finding 

that the BWC presented sufficient evidence of fraud. A finding of fraud requires six 

specific elements: (1) a representation or, where there is a duty to disclose concealment of 

fact; (2) which is material to the transaction at hand; (3) made falsely with the knowledge 

of its falsity; (4) with the intent of misleading another into reliance upon the 

representation; (5) justifiable reliance upon the representation or concealment; and (6) a 

resulting injury proximately caused by such reliance. State ex rel. Allied Holdings, Inc. v. 

Meade, 10th Dist. No. 06AP-1029, 2007-Ohio-5010. 

{¶ 55} In the present case, it is undisputed that the original C-84s which relator 

signed specifically asked her if she was working, to which relator replied that she was not. 

The commission specifically found that "[t]he C-84 application was later modified by 

BWC, and the application signed by the Injured Worker on 01/31/2013, asked if the 

Injured Worker was working in unpaid activities that were not minimal and directly 

earned income for someone else. The Injured Worker again answered 'no.' " Finding that 

there was persuasive evidence that relator was engaged in unpaid activities directly 

earning income for someone else, the commission found that she had a duty to disclose to 

her treating physician the true extent of her mental, physical, and functional capabilities, 

and that this concealment was material to the matter at hand. 

{¶ 56} Thereafter, the commission determined that relator had knowledge of the 

falsity of the representations. Specifically, the commission stated: 

The Injured Worker is further found to have had knowledge 

of the falsity of the representations made to BWC. The 

original C-84 applications specifically asked the Injured 

Worker if she had worked in any capacity during the period 

of disability. The C-84 form did not ask if the Injured Worker 

was engaged in unpaid employment. The modified C-84 

form, signed on 01/31/2013, specifically asked the Injured 

Worker if she was engaged in unpaid activities, yet the 

Injured Worker continued to deny such activities. The 

Commission finds the C-84 form is clear and unambiguous 

that the Injured Worker was not entitled to receive 

temporary total disability compensation if she was engaged 

in the activities she was performing, but she continued to 

knowingly deny she was working. Further, the Injured 

Worker knew she was misrepresenting to her physicians her 

functional capabilities as she clearly would have been aware 

of the activities she was performing. 
No. 16AP-101 21

{¶ 57} The commission found that relator was overpaid TTD compensation from 

March 1, 2011 through August 6, 2013 and, having found that she committed fraud, 

ordered that the entire award be recouped pursuant to the fraud provisions of R.C. 

4123.511(K). The magistrate finds that the commission abused its discretion by ordering 

the entire award to be recouped pursuant to the fraud provisions. 

{¶ 58} While the commission is the ultimate fact finder and is due some deference 

as to its factual findings, this court is not required to give such deference to the 

commission's handling of issues which are purely legal issues. The determination of fraud 

is a legal issue. The commission found that none of the C-84s which relator signed 

between March 1, 2011 and January 30, 2013 informed relator that if she was engaged in 

unpaid activities that were not minimal and which directly earned income for someone 

else, she was not entitled to continue receiving TTD compensation. Inasmuch as the 

commission specifically found that relator was not paid for the activities, it was not until 

she signed the modified C-84 on January 31, 2013 that it can be said that relator knew 

that her unpaid activities were precluded. As such, the magistrate finds that it was an 

abuse of discretion for the commission to find that relator committed fraud when she 

received TTD compensation between March 1, 2011 and January 30, 2013 because none 

of those C-84s informed her that her unpaid activities were improper. However, 

inasmuch as the C-84 form signed on January 31, 2013 and the rest of the C-84 forms that 

she signed between then and August 6, 2013 did contain that language, the magistrate 

finds that it was not an abuse of discretion to declare that portion of TTD compensation 

which relator received should be recouped pursuant to the fraud provisions. In so finding, 

the magistrate acknowledges that it is certainly conceivable that, unless the BWC sent 

claimants a letter warning them that the language in upcoming C-84s concerning their 

activities and continued receipt of TTD compensation was going to change, it is certainly 

conceivable that relator was signing C-84s in 2013 without reading them carefully because 

she may have had no reason to know that the language had changed. However, the 

magistrate is not in a position to make that finding. 

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

demonstrated that the commission abused its discretion when it declined to exercise its 

continuing jurisdiction because the time requirements in the statute are directory and not 
No. 16AP-101 22

mandatory. Further, the magistrate finds that relator has not demonstrated that the 

commission abused its discretion by declaring she was overpaid TTD compensation from 

January 31, 2013 through August 6, 2013. However, the magistrate does find that relator 

demonstrated that the commission abused its discretion by declaring that the entire 

amount of TTD compensation be recouped pursuant to the fraud provisions, and this 

court should issue a writ of mandamus ordering the commission to vacate that portion of 

its order finding fraud for the closed period of March 1, 2011 through January 30, 2013. 

 /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).