[Cite as State ex rel. Witt v. Indus. Comm. et al., 2017-Ohio-554.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, ex rel. : 

Billy R. Witt, Jr., 

 : 

 Relator, No. 15AP-804 

 : 

v. (REGULAR CALENDAR) 

 : 

Industrial Commission of Ohio et al., 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on February 16, 2017 

 

On brief: Law Office of Thomas Tootle, and Thomas Tootle, 

for relator. 

On brief: Michael DeWine, Attorney General, and Kevin J. 

Reis, for respondents Industrial Commission of Ohio and 

Administrator, Bureau of Workers' Compensation.

On brief: Robert W. Bright, for respondent Christian 

Morris Construction, Inc.

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

BROWN, J. 

{¶ 1} Relator, Billy R. Witt, Jr., has filed an original action requesting this court to 

issue a writ of mandamus ordering respondent Industrial Commission of Ohio 

("commission") to vacate an order of its staff hearing officer ("SHO") to the extent it 

adjusts the full weekly wage ("FWW") and average weekly wage ("AWW"), and to enter an 
No. 15AP-804 2 

amended order holding that respondent Ohio Bureau of Workers' Compensation 

("bureau") did not have jurisdiction to issue an order adjusting FWW and AWW. 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of 

Appeals, the matter was referred to a magistrate of this court who issued the appended 

decision, including findings of fact and conclusions of law. In that decision, the 

magistrate recommended that this court issue a writ of mandamus ordering the 

commission to vacate the June 25, 2015 order of its SHO to the extent it adjusts FWW and 

AWW, and to enter an amended order holding that the bureau lacked jurisdiction to issue 

its March 2, 2015 order adjusting FWW and AWW. 

{¶ 3} The commission has filed objections to the magistrate's decision, arguing 

that the magistrate erred: (1) by holding the bureau lacked authority to recalculate FWW 

and AWW because the issue was not raised administratively and thus has been waived for 

review in mandamus, (2) in ruling that the bureau must file an application under R.C. 

4123.52 in order for either the bureau or the commission to exercise its continuing 

jurisdiction, and (3) in interpreting and applying the Supreme Court of Ohio's decision in 

State ex rel. Drone v. Indus. Comm., 93 Ohio St.3d 151 (2001). 

{¶ 4} The facts of this case, which are more fully set forth in the magistrate's 

decision, indicate that relator suffered an industrial injury on July 2, 1997. He 

subsequently applied for and received temporary total disability compensation, and the 

bureau initially calculated and set FWW at $416.63 and AWW at $365.36. In 2014, 

relator filed for and was granted permanent total disability ("PTD") compensation. 

{¶ 5} In February 2015, the bureau conducted an audit of its prior calculation of 

FWW and AWW, resulting in a determination that FWW should be adjusted upward, and 

that AWW should be adjusted downward. On March 2, 2015, the bureau issued an order 

increasing FWW from $416.63 to $422.81 and decreasing AWW from $365.36 to 

$263.83. 

{¶ 6} Relator filed an administrative appeal, and a district hearing officer 

("DHO") issued an order affirming the bureau's order. Relator appealed the order of the 

DHO and the matter came for hearing before an SHO who issued an order on June 25, 

2015, finding that FWW should remain at $422.81 and that AWW should be adjusted 

upward from $263.83 to $325.00. 
No. 15AP-804 3 

{¶ 7} Relator then filed the instant complaint in mandamus, arguing that the 

bureau's March 2, 2015 order, recalculating his FWW and AWW, constituted an attempt 

by the bureau to exercise continuing jurisdiction over the claim without statutory 

authority. More specifically, relator argued that the bureau should have first filed a 

motion seeking to invoke the continuing jurisdiction of the commission. 

{¶ 8} The magistrate determined that the bureau "lacked authority to issue its 

March 2, 2105 order adjusting FWW and AWW because the matter at issue was a 

contested matter that should have been referred to the commission for adjudication by a 

DHO in the first instance." In support, the magistrate cited as authority decisions by the 

Supreme Court in Drone and State ex rel. Crabtree v. Ohio Bur. of Workers' Comp., 71 

Ohio St.3d 504 (1994).

{¶ 9} R.C. 4123.52 states in part: 

(A) The jurisdiction of the industrial commission and the 

authority of the administrator of workers' compensation over 

each case is continuing, and the commission may make such 

modification or change with respect to former findings or 

orders with respect thereto, as, in its opinion is justified. * * * 

The commission shall not make any modification, change, 

finding, or award which shall award compensation for a back 

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

application therefor. 

* * * 

(D) This section does not affect the right of a claimant to 

compensation accruing subsequent to the filing of any such 

application, provided the application is filed within the time 

limit provided in this section. 

{¶ 10} The commission argues there is no legal authority for the magistrate's 

determination that the bureau must file an application or a motion before it can correct a 

mathematical error in its prior calculation of a claimant's FWW and AWW. The 

commission notes that, pursuant to R.C. 4123.52(A), "the authority of the administrator 

of workers' compensation over each case is continuing." The commission cites Crabtree

for the proposition that the bureau's "role is ministerial, not deliberative," and that the 

bureau "gives way to the commission when a party contests an award, necessitating a 

weighing of evidence and a judgment." Id. at 507. The commission further asserts that 
No. 15AP-804 4 

the Supreme Court in Drone recognized the bureau has authority to act sua sponte 

without an application because its acts are ministerial, and that any such acts can later be 

contested before the commission. 

{¶ 11} Under the facts in Drone, the bureau discovered an error in its calculation of 

the claimant's AWW, resulting in an underpayment. The claimant in that case had not 

filed an application for readjustment; rather, the bureau sua sponte issued an order 

adjusting the amount, but limited the adjustment as to compensation paid for the twoyear period prior to the date it discovered the error.1 The claimant objected to the 

bureau's order, and a DHO ordered an adjustment to all compensation previously paid; 

specifically, because no application for readjustment had been filed in the claim, the DHO 

determined that the two-year statute of limitations under R.C. 4123.52 was inapplicable. 

The bureau appealed, and an SHO vacated the DHO's order, treating the claimant's 

objection as an "application" under R.C. 4123.52. The commission therefore permitted 

recoupment only to the date two years prior to the claimant's objection to the bureau's 

order. The claimant subsequently filed a complaint in mandamus, and this court 

rendered a decision ordering the commission to adjust all compensation previously paid 

in order to retroactively pay the claimant benefits that were not paid due to the error. 

{¶ 12} On appeal, the Supreme Court in Drone found unpersuasive the SHO's 

determination that the claimant's written objection constituted an "application" for 

purposes of invoking the statute of limitations. Further, noting that the statute of 

limitations under R.C. 4123.52 "requires an application to trigger it," the Supreme Court 

upheld this court's decision on the basis that the statute of limitations was never 

triggered. Drone at 155. 

{¶ 13} In the Drone decision, the Supreme Court observed the following with 

respect to the bureau's sua sponte exercise of continuing jurisdiction to adjust the AWW 

calculation as it relates to the two-year statute of limitations under R.C. 4123.52: 

Here, there is no motion. There is simply a bureau order and 

claimant's written objection to it. The former comports least 

with the criteria set forth by [State ex rel. Gen. Refractories 

Co. v. Indus. Comm., 44 Ohio St.3d 82 (1989)]. That case 

 

1 The language of R.C. 4123.52 "expressly forbids the commission to pay PTD compensation for a back 

period in excess of two years before the filing of the application for compensation." State ex rel. Adams v. 

Aluchem, Inc., 104 Ohio St.3d 640, 2004-Ohio-6891, ¶ 11 (construing R.C. 4123.52(A)). 
No. 15AP-804 5 

instructs the reviewer to examine the "nature of the relief 

sought." (Emphasis added.) * * * This implies a request. The 

bureau order is not requesting relief. It is exactly what its 

name indicates—an order. It states what is to be done and 

how it is to be accomplished. 

We are uncomfortable with this reasoning because we 

recognize that when the bureau exercises sua sponte its 

continuing jurisdiction to correct a mistake, an order such as 

this is usually all that issues. The BWC does not apply for 

permission to act. Thus, if the bureau order lacks value for 

purposes of the two-year statute of limitations, does that 

mean that the bureau is not bound by the statute of 

limitation[s]? Going a step further, one wonders whether the 

BWC even has continuing jurisdiction to order any 

recoupment if, as the court of appeals held, R.C. 4123.52 does 

not apply at all. These are questions that have no ready 

answers. 

 

Id. at 154. 

{¶ 14} In the instant case, the commission challenges the magistrate's conclusion 

that the decision in Drone "does not prohibit this court from holding that the bureau 

lacked statutory authority to issue an order purporting to adjudicate the merits of the 

bureau's audit and finding that error had occurred in the initial calculation of FWW and 

AWW." The commission asserts that case law and statutory language indicate that the 

filing of the "application" referenced in R.C. 4123.52 applies to the claimant (i.e., it is the 

claimant who files the application). The commission further argues that the Supreme 

Court in Drone did not question the bureau's authority to act sua sponte, nor does 

language in that decision suggest the bureau is required to file an application. Rather, the 

commission argues, the lack of an application was the rationale provided by the court in 

Drone as to why the retroactive increase was not limited to two years under R.C. 4123.52. 

{¶ 15} In response to the commission's objections, relator cites this court's 

decision in State ex rel. Zingales v. Indus. Comm., 10th Dist. No. 08AP-643, 2009-Ohio1860, as illustrating a proper procedure for the bureau. Specifically, under the facts of 

that case, the bureau filed a motion requesting the commission to invoke its continuing 

jurisdiction to modify the relator's AWW. We note, however, while the facts of Zingales 
No. 15AP-804 6 

indicate the bureau filed such a motion, nothing in our decision addressed the issue of 

whether the bureau was required to do so. 

{¶ 16} In general, as argued by the commission, references throughout the 

workers' compensation rules to "applications," in the context of PTD compensation, 

demonstrate the commission intended "claimants" to affirmatively request such 

compensation. State ex rel. Adams v. Aluchem, Inc., 104 Ohio St.3d 640, 2004-Ohio6891, ¶ 26. 

{¶ 17} In the instant action, relator points to no statutory authority requiring the 

bureau to file a motion to correct a calculation error with respect to AWW or FWW, and 

language in Drone arguably gives recognition to the fact the bureau may exercise sua 

sponte (i.e., in the absence of a motion and/or application) its continuing jurisdiction "to 

correct [such] a mistake." Drone at 154. As otherwise stated in Drone, the bureau "does 

not apply for permission to act." Id. Based on this court's independent review, we find 

that the bureau and commission had continuing jurisdiction to correct a miscalculation in 

relator's AWW and FWW, and we therefore find no abuse of discretion by the commission 

in its June 25, 2015 order upholding the bureau's adjustment of relator's benefit rate. 

{¶ 18} Based on the foregoing, we adopt the magistrate's findings of fact, but reject 

the magistrate's conclusions of law. The commission's second and third objections are 

sustained, the first objection is rendered moot, and relator's request for a writ of 

mandamus is hereby denied. 

Objections sustained; 

writ of mandamus denied. 

LUPER SCHUSTER and DORRIAN, JJ., concur. 

______________________ 
[Cite as State ex rel. Witt v. Indus. Comm. et al., 2017-Ohio-554.]

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, ex rel. : 

Billy R. Witt, Jr., 

 : 

 Relator, 

 : 

v. No. 15AP-804 

 : 

Industrial Commission of Ohio, (REGULAR CALENDAR) 

Stephen Buehrer, Admin[istrator] : 

Bureau of Workers' Comp[ensation], 

and Christian Morris Const[ruction], Inc., : 

 Respondents. : 

 

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

Rendered on April 27, 2016

 

Law Office of Thomas Tootle, and Thomas Tootle, for relator. 

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

respondent Industrial Commission of Ohio.

Robert W. Bright, for respondent Christian Morris 

Construction, Inc.

 

IN MANDAMUS 

{¶ 19} In this original action, relator, Billy R. Witt, Jr., requests a writ of 

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

the June 25, 2015 order of its staff hearing officer ("SHO") to the extent that it adjusts the 

full weekly wage ("FWW") and average weekly wage ("AWW"), and to enter an amended 

order holding that respondent Ohio Bureau of Workers' Compensation ("bureau") did not 

have jurisdiction to issue its March 2, 2015 order adjusting FWW and AWW. Relator also 

requests that the writ order the bureau to vacate its March 2, 2015 order. 
No. 15AP-804 8

Findings of Fact: 

{¶ 20} 1. On July 2, 1997, relator was industrially injured while employed as a 

laborer for respondent Christian Morris Construction, Inc., a state-fund employer. Early 

in the industrial claim (No. 97-440601), without an order from the administrator, the 

bureau calculated and set FWW at $416.63 and AWW at $365.36. 

{¶ 21} 2. Relator began receiving temporary total disability ("TTD") compensation. 

A substantial amount of TTD compensation has been paid by the bureau. 

{¶ 22} 3. On January 10, 2014, relator filed an application for permanent total 

disability ("PTD") compensation. 

{¶ 23} 4. Following a June 12, 2014 hearing, SHO issued an order awarding PTD 

compensation starting November 19, 2013. 

{¶ 24} 5. During February 2015, the bureau conducted an audit of its prior 

calculation of FWW and AWW in the claim. The audit determined that FWW should be 

increased from $416.63 to $422.81. It also determined that AWW should be decreased 

from $365.36 to $263.83. 

{¶ 25} 6. On March 2, 2015, the bureau mailed an order increasing FWW from 

$416.63 to $422.81. The order also decreased AWW from $365.36 to $263.83. The 

bureau order warned: 

This decision becomes final if a written appeal is not received 

within 14 days of receiving this notice. 

 

{¶ 26} 7. On March 18, 2015, relator timely filed an administrative appeal from the 

bureau's March 2, 2015 order. 

{¶ 27} 8. Following a May 18, 2015 hearing, a district hearing officer ("DHO") 

issued an order affirming the bureau's order of March 2, 2015. The DHO's order explains: 

The Injured Worker's full weekly wage is $422.81, based 

upon a total income (including overtime) of $2,536.87, in the 

six weeks before injury divided by six weeks. This figure is 

higher than what Injured Worker made in the last seven days 

before injury (less overtime). 

The Injured Worker's average weekly wage is $263.83, based 

upon total income of $12,783.62 in the year before injury 

divided by 52 weeks. 

The District Hearing Officer declines the Injured Worker's 

request to exclude the weeks from 07/02/1996 to 
No. 15AP-804 9

04/04/1997 from the calculation of average weekly wage. 

During this time Injured Worker was self-employed but, in 

counsel's words, "not very successful." This is not a basis for 

reducing average weekly wage. 

The Injured Worker also argues that the Bureau of Workers' 

Compensation should be barred by laches from adjusting the 

average weekly wage since it has not attempted to do so for 

decades. Laches is a doctrine from equity that can only be 

applied by courts. Without express authority in a statute, 

rule, or case law, the Industrial Commission has no authority 

to apply equity. 

The Administrator is directed to please adjust compensation 

previously paid in this claim to take into account these new 

figures. There was no "application" to adjust wages since the 

Bureau of Workers'' Compensation did so on its own 

initiative. According to the Ohio Supreme Court, this means 

that the Administrator has authority to go back as far as he 

wishes when making adjustments. 

Any overpayment created by this order is to be recouped 

from future benefits, if any, pursuant to Ohio Revised Code 

4123.511(K). 

The District Hearing Officer considered everything that was 

written in the file and said at the hearing before making this 

decision. The evidence relied upon in reaching this decision 

includes the wage documentation and Bureau of Workers' 

Compensation wage calculation worksheet filed 03/18/2015. 

{¶ 28} 9. Relator administratively appealed the DHO's order of May 18, 2015. 

{¶ 29} 10. Following a June 25, 2015 hearing, an SHO issued an order affirming 

the DHO's order of May 18, 2015. The SHO's order of June 25, 2015 explains: 

Full weekly wage remains established at $422.81. This is 

determined by taking the Injured Worker's wages in the six 

weeks prior to the date of injury, a total of $2,536.87, and 

dividing by six. This amount is more than the Injured 

Worker made in the seven days prior to the injury, excluding 

overtime. This figure was not contested by the Injured 

Worker. 

It is the finding of the Staff Hearing Officer that an 

arithmetic calculation of the Injured Worker's wages would 

not do substantial justice. The Injured Worker had a 

substantial period in the year prior to the date of injury when 
No. 15AP-804 10 

he was unsuccessfully self-employed. Including this time 

period and these wages would not accurately reflect the 

Injured Worker's reasonable earning capacity. The Staff 

Hearing Officer does not find well taken Injured Worker's 

request that the average weekly wage be established at the 

full weekly wage, as this was with a construction company 

and consequently this is significantly seasonal work. The 

average weekly wage is established at $325.00. This figure is 

found to be an approximation which would compensate the 

Injured Worker for what he lost as a consequence of the 

injury, without providing a windfall, and is between the 

merely arithmetic calculation of $263.83, and the amount 

the Injured Worker was receiving at the time of his injury. 

The Administrator is directed to adjust compensation 

previously paid in this claim to take into account these new 

figures. Because there was no application, there is no 

limitation under R.C. 4123.52. The recoupment from any 

future benefits, if this creates an overpayment, is limited to 

the non-fraud provisions of R.C. 4123.511(K). 

The Staff Hearing Officer has considered Injured Worker's 

counsel's argument that, because of the very long passage of 

time, the doctrine of latches [sic] should be applied to the 

recoupment of the overpayment. This argument is not found 

well taken. Latches [sic] is an equitable remedy, not 

appropriate for an administrative hearing setting. 

{¶ 30} 11. On July 16, 2015, another SHO mailed an order refusing relator's 

administrative appeal from the SHO's order of June 25, 2015. 

{¶ 31} 12. On August 25, 2015, relator, Billy R. Witt, Jr., filed this mandamus 

action. 

Conclusions of Law:

{¶ 32} Because the bureau did not have the statutory authority to issue its March 2, 

2015 order adjusting FWW and AWW, it is the magistrate's decision that this court issue a 

writ of mandamus, as more fully explained below. 

{¶ 33} R.C. 4121.34(B)(3) gives district hearing officers original jurisdiction over all 

contested matters arising under R.C. Chapter 4123, except those matters over which staff 

hearing officers have original jurisdiction under R.C. 4121.35. 
No. 15AP-804 11

{¶ 34} R.C. 4121.39 sets forth the powers and duties of the bureau: 

The administrator of workers’ compensation shall do all of 

the following: 

(A) Except as provided in section 4123.402 of the Revised 

Code, review and process all applications for claims; 

(B) Award compensation and make payment on all 

noncontested claims; 

(C) Make payment on orders of the industrial commission 

and district and staff hearing officers as provided in section 

4123.511 of the Revised Code. 

{¶ 35} In State ex rel. Crabtree v. Ohio Bur. of Workers' Comp., 71 Ohio St.3d 504 

(1994), the Supreme Court of Ohio set forth the jurisdictional parameters of the bureau in 

the context of the termination of TTD compensation on grounds that the industrial injury 

had reached maximum medical improvement ("MMI"). Citing to R.C. 4121.34(B)(3) and 

4121.39, the court held that the bureau did not have the statutory authority to unilaterally 

terminate TTD compensation on MMI grounds where the issue was a contested matter. 

{¶ 36} In issuing a writ of prohibition and mandamus, the Crabtree court stated: 

The limited power Ohio Rev. Code Ann. § 4121.39 accords 

the Bureau of Workers' Compensation is consistently 

reflected in the remainder of the statutory framework of 

Ohio's workers' compensation system. The bureau's role is 

ministerial, not deliberative. The bureau gives way to the 

commission when a party contests an award, necessitating a 

weighing of evidence and a judgment. The bureau then 

makes the payments based upon the commission's 

judgments. 

Id. at 507. 

 

{¶ 37} Applying Crabtree to the instant case, it is clear that the bureau lacked 

authority to issue its March 2, 2015 order adjusting FWW and AWW because the matter 

at issue was a contested matter that should have been referred to the commission for 

adjudication by a DHO in the first instance. 

{¶ 38} The bureau's issuance of an order rather than the filing of a motion with the 

commission for the exercise of continuing jurisdiction was prejudicial to relator because 

of the holding in State ex rel. Drone v. Indus. Comm., 93 Ohio St.3d 151 (2001), upon 
No. 15AP-804 12

which the SHO's order of June 25, 2015 seems to rely without express citation to the case. 

That is, the SHO held that "[b]ecause there was no application, there is no limitation 

under R.C. 4123.52." This appears to be a reference to the following provision of R.C. 

4123.52: 

The commission shall not make any modification, change, 

finding, or award which shall award compensation for a back 

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

application therefor. 

{¶ 39} Thus, the SHO's order of June 25, 2015 seems to hold that the two-year 

limitation is not applicable to the bureau's recoupment of compensation for any back 

period in the case. Accordingly, a review of the Drone case may be helpful. 

{¶ 40} The bureau initially set Evelyn Drone's AWW at $138.96. In September 

1998, the bureau discovered an error in its calculation. In December 1998, the bureau 

notified Drone that her AWW had been incorrectly calculated resulting in an 

underpayment in her claim. The bureau stated that AWW is now set at $174.08, but that 

adjustments to her previously received compensation would be limited to the two-year 

period in R.C. 4123.52. Further, the two-year period would be measured from the date 

the bureau discovered the error. Apparently, the just-described notification was issued in 

a bureau order to which Drone objected. 

{¶ 41} A DHO reset AWW at $206.60 and ordered an adjustment of all 

compensation previously paid. The DHO found that no application for readjustment had 

been filed in the claim, rendering inapplicable R.C. 4123.52's two-year statute of 

limitation that presumably motivated the bureau's repayment restriction. The bureau 

administratively appealed the DHO's order. 

{¶ 42} Following a hearing, an SHO vacated the DHO's order and permitted 

recoupment only to December 31, 1996, the date two-years prior to Drone's objection to 

the bureau's order. 

{¶ 43} Thereafter, Drone filed in this court a mandamus action alleging that the 

commission abused its discretion in refusing to readjust all prior compensation. This 

court ordered the commission to adjust all compensation previously paid. 

{¶ 44} The cause was appealed as of right to the Supreme Court of Ohio. 

{¶ 45} The Supreme Court held that the statute of limitations was never triggered 

because there is no application within the meaning of R.C. 4123.52. In explaining its 
No. 15AP-804 13 

decision, the Drone court referred to State ex rel. Gen. Refractories Co. v. Indus. Comm., 

44 Ohio St.3d 82 (1989). The Drone court explains: 

Here, there is no motion. There is simply a bureau order and 

claimant's written objection to it. The former comports least 

with the criteria set forth by Gen. Refractories. That case 

instructs the reviewer to examine the "nature of the relief 

sought." (Emphasis added.) Id. at 83, 541 N.E.2d at 54. This 

implies a request. The bureau order is not requesting relief. 

It is exactly what its name indicates--an order. It states what 

is to be done and how it is to be accomplished. 

We are uncomfortable with this reasoning because we 

recognize that when the bureau exercises sua sponte its 

continuing jurisdiction to correct a mistake, an order such as 

this is usually all that issues. The BWC does not apply for 

permission to act. Thus, if the bureau order lacks value for 

purposes of the two-year statute of limitations, does that 

mean that the bureau is not bound by the statute of 

limitation? Going a step further, one wonders whether the 

BWC even has continuing jurisdiction to order any 

recoupment if, as the court of appeals held, R.C. 4123.52 

does not apply at all. These are questions that have no ready 

answers. 

* * * 

Analysis has thus come full circle and herein lies the 

dilemma, as no answer distinguishes itself. We find that the 

court of appeals' judgment is truest to R.C. 4123.52 and Gen. 

Refractories. Because the statute of limitations in R.C. 

4123.52 requires an application to trigger it and nothing 

satisfies Gen. Refractories' outline of an application, then the 

statute of limitations has not been invoked. 

(Emphasis sic.) Id. at 154-55. 

{¶ 46} Here, the commission points to the fact that in Drone the bureau issued an 

order to correct the miscalculation of AWW. That is, the bureau did not file a motion that 

the commission correct the miscalculation. Referring to Drone, the commission states 

here: 

The Supreme Court found nothing amiss in the 

Administrator's action and held that the two-year limitation 

on declaration of an overpayment did not apply where the 

Administrator discovered that it had miscalculated the 
No. 15AP-804 14 

claimant's AWW and sua sponte exercised its continuing 

jurisdiction to correct the mistake. 

(Commission's Brief, 9.) 

{¶ 47} In the magistrate's view, the Drone case does not prohibit this court from 

holding that the bureau lacked statutory authority to issue an order purporting to 

adjudicate the merits of the bureau's audit and finding that error had occurred in the 

initial calculation of FWW and AWW. In Drone, no one argued that the bureau lacked 

authority to issue the order. The Crabtree case was not discussed by the Drone court. 

{¶ 48} Moreover, in the instant case, the bureau's decision to issue an order rather 

than file a motion for an adjustment of FWW and AWW had the effect of eliminating the 

"application" that the Drone court found was the trigger for the two-year statute of 

limitations. Thus, the bureau's decision to issue an order was prejudicial to relator 

because it resulted in the commission's holding that the bureau is now under no 

limitation in declaring an overpayment of compensation. 

{¶ 49} 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 June 25, 2015 

order of its SHO to the extent that it adjusts FWW and AWW, and to enter an amended 

order holding that the bureau did not have jurisdiction to issue its March 2, 2015 order 

adjusting FWW and AWW. Further, the writ must order the bureau to vacate its March 2, 

2015 order. 

 /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).