[Cite as State ex rel. Hill-Foster v. Indus. Comm., 2015-Ohio-3745.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[State ex rel. Glenda L. Hill-Foster, : 

 

 Relator, : 

v. No. 14AP-335 

 : 

Industrial Commission of Ohio, (REGULAR CALENDAR) 

 : 

 Respondent.] 

 : 

 

D E C I S I O N 

Rendered on September 15, 2015 

 

Glenda L. Hill-Foster, pro se. 

Michael DeWine, Attorney General, and Kevin J. Reis, for 

respondent. 

 

IN MANDAMUS 

LUPER SCHUSTER, J. 

{¶ 1} Relator, Glenda L. Hill-Foster, commenced this original action requesting 

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

Ohio ("commission"), to vacate its order which denied her request for relief under 

R.C. 4123.52 and/or 4123.522, and ordering the commission to find that she is entitled to 

that relief, and further ordering the commission to accept her medical evidence and reevaluate her claim. 

{¶ 2} In April 2014, this court referred the matter to a magistrate pursuant to 

Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. In July 2014, the 

commission filed a motion to dismiss. On November 19, 2014, the magistrate issued a 

decision, including findings of fact and conclusions of law, which is appended hereto. The 
No. 14AP-335 2 

magistrate recommended this court deny respondent's motion to dismiss and further 

deny Hill-Foster's request for a writ of mandamus. 

{¶ 3} Neither party filed objections to the magistrate's decision. Pursuant to 

Civ.R. 53(D)(4)(c), "[i]f no timely objections are filed, the court may adopt a magistrate's 

decision, unless it determines that there is an error of law or other defect evident on the 

face of the magistrate's decision." Having reviewed the magistrate's decision in 

accordance with this standard, we find no facial defect as to the recitation of the facts. 

However, we find it necessary to clarify the conclusions of law. 

{¶ 4} The magistrate noted that the commission moved to dismiss arguing that 

this court lacks jurisdiction because this matter involves Hill-Foster's right to participate 

and not the extent of her alleged disability. The motion to dismiss argued other grounds 

for dismissal, including arguing Hill-Foster failed to state a claim upon which relief can be 

granted. While the magistrate's decision sets forth the legal standard for dismissing a 

complaint for failure to state a claim upon which relief can be granted pursuant to 

Civ.R. 12(B)(6), the only argument from the motion to dismiss the magistrate analyzed 

was the commission's Civ.R. 12(B)(1) jurisdictional argument. Absent objections, we limit 

our review to errors evident on the face of the magistrate's decision. 

{¶ 5} Specifically, the commission argued that Hill-Foster should have timely 

followed R.C. 4123.512 and filed a complaint in the Franklin County Court of Common 

Pleas, which has exclusive jurisdiction over "right to participate" cases. The magistrate 

properly rejected this jurisdictional argument because the issue before us is the denial of 

continuing jurisdiction under R.C. 4123.522, rather than the underlying right to 

participate. Because Hill-Foster is alleging the commission abused its discretion when it 

did not grant her relief pursuant to R.C. 4123.522, this court has jurisdiction. See State ex 

rel. Prestige Delivery Sys., Inc. v. Indus. Comm., 10th Dist. No. 02AP-622, 2003-Ohio3329, ¶ 25 (finding the denial of an R.C. 4123.522 request not appealable to the common 

pleas court, but a mandamus action is available to challenge such an order). 

{¶ 6} Therefore, we modify the magistrate's decision to clarify the jurisdictional 

ruling. Accordingly, we adopt the magistrate's decision as our own, including the findings 

of fact and conclusions of law, as modified and clarified herein. In accordance with the 
No. 14AP-335 3 

magistrate's decision, the commission's motion to dismiss is denied and Hill-Foster's 

requested writ of mandamus is also denied. 

Motion to dismiss denied; 

writ of mandamus denied. 

BROWN, P.J., and SADLER, J., concur. 

 
No. 14AP-335 4 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[State ex rel. Glenda L. Hill-Foster, : 

 

 Relator, : 

v. No. 14AP-335 

 : 

Industrial Commission of Ohio, (REGULAR CALENDAR) 

 : 

 Respondent.] 

 : 

 

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

Rendered on November 19, 2014 

 

Glenda L. Hill-Foster, pro se. 

Michael DeWine, Attorney General, and Kevin J. Reis, for 

respondent. 

 

IN MANDAMUS 

ON RESPONDENT'S MOTION TO DISMISS 

{¶ 7} Relator, Glenda L. Hill-Foster, 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 which denied her request for relief under R.C. 

4123.52 and/or R.C. 4123.522, and ordering the commission to find that she is entitled 

to that relief, and further ordering the commission to accept her medical evidence and 

reevaluate her claim. 

Findings of Fact: 

{¶ 8} 1. Relator was employed at Net Jet Service, Inc. ("Net Jets") from 

December 20, 1999 through October 3, 2003 when she left for reasons which are not 

reflected in the evidence. 
No. 14AP-335 5 

{¶ 9} 2. In October 2003, relator filed a First Report of Injury form ("FROI-1") 

alleging that she sustained a work-related injury some time in January 2001. Relator's 

FROI-1 alleged unspecified injuries to her "neck, rotator cup [sic], shoulder [and] arm." 

{¶ 10} 3. Relator completed a second FROI-1 alleging that she sustained a workrelated injury some time in January 2002. This FROI-1 alleges unspecified injuries to 

"all other; multiple body parts N/A." Relator described the cause of her injury: 

The job I perform [and] the overload of work in a daily basis 

caused me my injuries. The job I did was enough for 1 person 

[and] a part time person[.] The overload increased 

tremendously over a year and a half. I asked for help [and] 

got none due to the fact that (temp) the person I was to get 

help, she determined her schedule [and] (?) [sic] she could 

not work with me. So I was left to do the work by myself. 

{¶ 11} 4. Net Jets rejected relator's claim on grounds that she was no longer 

employed by Net Jets and had never reported a work-related injury at the time alleged. 

{¶ 12} 5. The Ohio Bureau of Workers' Compensation ("BWC") sent letters to 

relator, Net Jets, and Joan E. King, D.O., the physician listed on relator's FROI-1. The 

letters requested that relator, Net Jets, and Dr. King submit medical documentation to 

support relator's FROI-1. 

{¶ 13} 6. In an order mailed November 7, 2003, the BWC disallowed relator's 

claim because "[m]edical documentation was not submitted to establish a causal 

relationship." The order notified relator that she had 14 days from the receipt of the 

order to file an appeal with the commission. 

{¶ 14} 7. Relator did not file an appeal within 14 days nor did relator provide 

medical documentation in support of her FROI-1. 

{¶ 15} 8. According to the stipulation of evidence, relator sought legal advice 

from Stephen L. Mindzak, Attorney at Law, in October 2005, The Bainbridge Firm and 

Eric A. Jones in August 2009, and from Philip J. Fulton Law Office in December 2012. 

Each of these three attorneys filed representation notices; however, none of them filed 

any motion or took any action on relator's behalf. 

{¶ 16} 9. In June 2012, relator filed a notice of appeal with the commission and 

noted the following reason for the appeal: "To present medical documentation to 

establish a causal relationship to claim on behalf of the injured worker's claim for the 
No. 14AP-335 6 

injury descriptions of neck, rotator cuff, shoulder, arm." In her appeal, relator also 

sought relief under R.C. 4123.52 and/or R.C. 4123.522, and stated the basis of such 

relief was: "Other (please see attached document of explanation)." (No explanation nor 

any other documentation appears to have been attached to relator's motion.) 

{¶ 17} 10. A notice of hearing was sent to relator informing her that her request 

for relief under R.C. 4123.52 and/or 4123.522 would be heard before a staff hearing 

officer ("SHO") on Thursday, November 15, 2012. 

{¶ 18} 11. At the time of the hearing, relator filed another form indicating that 

relief under R.C. 4123.522 was requested because she did not receive a copy of an order 

dated July 13, 2012. Relator did not indicate what entity issued the order which she did 

not receive and, neither relator nor the BWC has presented a copy of any order dated 

July 13, 2012. Relator indicated this order was mailed to an incorrect address. 

{¶ 19} 12. The matter was heard before an SHO on November 15, 2012 and the 

SHO denied relator's request for relief under R.C. 4123.52 and/or 4123.522 as follows: 

The Injured Worker filed an Ohio Workers' Compensation 

claim on 10/04/2003. This claim was denied by [the] Bureau 

of Workers' Compensation order of 11/07/2003. The Injured 

Worker never appealed this decision. 

There is evidence in the record that the Injured Worker 

sought legal advice related to this claim in 2005 and again in 

2009. Both Attorneys contacted by the Injured Worker are 

well known experienced Attorneys well versed in Ohio 

Workers' Compensation law. Neither Attorney took any 

action regarding this claim. 

The Injured Worker has taken no action in this claim. The 

Injured Worker's claim was denied back in 2003, close to a 

decade ago. The Injured Worker should have received a copy 

of the denial order back in 2003. The Injured Worker should 

have reasonably known years ago that her claim had been 

denied. Even if the Injured Worker did not receive the order 

in 2003, and the evidence does not establish that 

presumption, the Injured Worker should have known 

multiple years ago that her claim had been denied. The 

Injured Worker's complete failure to pursue her rights in any 

timely fashion is now a bar to her request for .522 [sic] relief. 

Ohio Revised Code 4123.522 states in part: "If any person to 

whom a notice is mailed fails to receive the notice and the 
No. 14AP-335 7 

commission, upon hearing, determines that the failure was 

due to cause beyond the control and without the fault or 

neglect of such person or his representative and that such 

person or his representative did not have actual knowledge 

of the import of the information contained in the notice, such 

person may take the action afforded to such person within 

twenty-one days after the receipt of the notice of such 

determination of the commission. Delivery of the notice to 

the address of the person or his representative is prima-facie 

evidence of receipt of the notice by the person." 

The relief sought by the Injured Worker shall not be granted 

unless the Injured Worker or her representative did not have 

actual knowledge of the import of the * * * information 

contained in the notice. The Injured Worker twice contacted 

competent attorneys well versed in the Ohio Workers' 

Compensation law. The Injured Worker clearly was aware of 

the Bureau of Workers' Compensation order of 11/07/2003 

and the fact that her claim had been denied. Further, the 

Injured Worker has not established that she did not receive a 

mailed copy of the Bureau of Workers' Compensation order 

of 11/07/2003. 

The Injured Worker has failed to establish a basis for the 

[Industrial Commission] to find continuing jurisdiction over 

this claim under Ohio Revised Code 4123.52. The Injured 

Worker's six page statement asking for the right to "reappeal" her case was * * * read, but her statement does not 

establish a legal basis for the [Industrial Commission] to 

exercise continuing jurisdiction over the claim. 

The claim was denied in 2003 and the [Industrial 

Commission] does not have continuing jurisdiction to 

reconsider the matter. 

{¶ 20} 13. After the SHO determined there was no basis for exercising continuing 

jurisdiction or to reconsider relator's denied claim under R.C. 4123.522, an ex parte 

order was issued dismissing relator's appeal as untimely. 

{¶ 21} 14. Thereafter, relator filed the instant mandamus action in this court. 

With her evidentiary packet (to which respondent did not stipulate), relator has 

submitted medical records some which date back to 2003. Some of these documents 

appear to be office notes from doctors and operative reports. Further, relator has 

included statements from Blue Cross/Blue Shield showing payment for various medical 
No. 14AP-335 8 

procedures. None of these documents appear to have been filed with either the BWC or 

the commission. 

{¶ 22} 15. On July 14, 2014, the commission filed a motion to dismiss arguing 

that this is a right to participate case and not an extent of disability case, and this court 

does not have jurisdiction. 

{¶ 23} 16. The matter is currently before the magistrate on respondent's motion 

to dismiss and relator's request for a writ of mandamus. 

Conclusions of Law: 

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

should deny respondent's motion to dismiss and further deny relator's request for a writ 

of mandamus. 

{¶ 25} 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). 

{¶ 26} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, relator must show a clear legal right to the relief 

sought and that the commission has a clear legal duty to provide such relief. State ex 

rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of 

mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel. 

Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record 

contains some evidence to support the commission's findings, there has been no abuse 

of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond 

Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the 

weight to be given evidence are clearly within the discretion of the commission as fact 

finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). 

{¶ 27} A motion to dismiss for failure to state a claim upon which relief can be 

granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. 

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint, 
No. 14AP-335 9 

the court must take all the material allegations as admitted and construe all reasonable 

inferences in favor of the nonmoving party. Id.

{¶ 28} In order for a court to dismiss a complaint for failure to state a claim upon 

which relief can be granted, it must appear beyond doubt from the complaint that 

relator can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community 

Tenants Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ a of mandamus 

is not subject to dismissal under Civ.R. 12(B)(6), if the complaint alleges the existence of 

a legal duty by the respondent and the lack of an adequate remedy at law for relator with 

sufficient particularity to put the respondent on notice of the substance of the claim 

being asserted against it, and it appears that relator might prove some set of facts 

entitling him to relief. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 

72 Ohio St.3d 94 (1995). 

{¶ 29} In its motion to dismiss, respondent argues that relator's failure to appeal 

the disallowance of her claim in 2003 bars her from being able to bring this mandamus 

action. Respondent asserts that relator's option was to follow R.C. 4123.512, and file a 

complaint in the Franklin County Court of Common Pleas ("common pleas court"). 

Because relator's claim was never allowed, respondent contends that this is a "right to 

participate" case and not an "extent of disability case." As such, respondent contends 

that the common pleas court has jurisdiction and this court does not. 

{¶ 30} In a sense, respondent is correct. Relator's claim has never been allowed. 

However, relator has asserted that she did not receive a copy of the November 7, 2003 

order which denied her claim. As such, relator was not prohibited from bringing a 

mandamus action asserting that the commission abused its discretion when it did not 

grant her relief pursuant to R.C. 4123.522 and, as such, respondent's motion to dismiss 

should be denied. 

{¶ 31} R.C. 4123.522 provides, in pertinent part, as follows: 

The employee, employer, and their respective 

representatives are entitled to written notice of any hearing, 

determination, order, award, or decision under this chapter * 

* *. An employee, employer * * * is deemed not to have 

received notice until the notice is received from the 

industrial commission or its district or staff hearing officers, 

the administrator, or the bureau of workers' compensation 
No. 14AP-335 10 

by both the employee and his representative of record, both 

the employer and his representative of record[.] 

If any person to whom a notice is mailed fails to receive the 

notice and the commission upon hearing, determines that 

the failure was due to cause beyond the control and without 

the fault or neglect of such person or his representative and 

that such person or his representative did not have actual 

knowledge of the import of the information contained in the 

notice, such person may take the action afforded to such 

person within twenty-one days after the receipt of the notice 

of such determination of the commission. Delivery of the 

notice to the address of the person or his representative is 

prima-facie evidence of receipt of the notice by the person. 

{¶ 32} R.C. 4123.522 provides "a rebuttal presumption, sometimes called the 

'mailbox rule' that, once a notice is mailed, it is presumed to be received in due course." 

Weiss v. Ferro Corp., 44 Ohio St.3d 178, 180 (1989). In order to successfully rebut that 

presumption, the party alleging the failure to receive notice must prove that: 

(1) the failure of notice was due to circumstances beyond the 

party's or the party's representative's control, (2) the failure 

of notice was not due to the party's or the party's 

representative's fault or neglect, and (3) neither the party nor 

the party's representative had prior actual knowledge of the 

information contained in the notice. 

{¶ 33} Relator has not submitted an affidavit nor has she submitted other 

evidence to establish all the elements necessary to rebut the presumption of delivery 

under R.C. 4123.522. To the extent that relator checked the box on the form indicating 

that the order was mailed to an incorrect address, relator never explains when she left 

the Westerville, Ohio address listed on her FROI-1, and to which the order was mailed. 

While relator does currently provide a different address in New Albany, Ohio, relator 

has not indicated when she moved to that address and, had she moved during the 

pendency of the action in 2003, relator has not demonstrated that she submitted a 

change of address form so the order would be mailed to the proper address. As such, 

relator has not demonstrated that any failure of notice was due to circumstances beyond 

her control. 
No. 14AP-335 11 

{¶ 34} Based on the foregoing, it is this magistrate's decision that this court 

should deny respondent's motion to dismiss. However, inasmuch as relator has failed to 

demonstrate that the commission abused its discretion in denying her relief pursuant to 

either R.C. 4123.52 and/or 4123.522, this court should deny relator's request for a writ 

of mandamus. 

 /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).