[Cite as State ex rel. Giant Eagle, Inc. v. Ohio Indus. Comm., 2017-Ohio-7413.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Giant Eagle, Inc., : 

 

 Relator, : 

 

v. : No. 16AP-354 

 

Ohio Industrial Commission : (REGULAR CALENDAR) 

and 

Henry Brown, : 

 

 Respondents. : 

 

D E C I S I O N 

Rendered on August 31, 2017 

 

On brief: Matty, Henrikson, & Greve, Kirk R. Henrikson, 

Jesse P. Kanner, and Samuel T. O'Leary, for relator. 

On brief: Michael DeWine, Attorney General, and

Natalie J. Tackett, for respondent Industrial Commission of 

Ohio. 

On brief: Nicholas C. DeGennaro, for respondent Henry 

Brown. 

 

IN MANDAMUS 

LUPER SCHUSTER, J. 

{¶ 1} Relator, Giant Eagle, Inc., filed this original action requesting that this court 

issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("ICO"), 

to vacate its November 16, 2015 order granting respondent, Henry Brown, a lump sum 

advancement from his award of permanent total disability and to enter an order denying 

the lump sum advancement.

{¶ 2} The court referred this matter to a magistrate pursuant to Civ.R. 53(C) and 

Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended 
No. 16AP-354 2 

decision, including findings of fact and conclusions of law, and recommended this court 

issue the requested writ of mandamus ordering ICO to vacate the November 16, 2015 

order and enter an order that determines whether "special circumstances" exist to support 

the application for a lump sum advancement under R.C. 4123.64 and Ohio Adm.Code 

4123-3-37. No objections to the magistrate's decision have been filed.

{¶ 3} Finding no error of law or other defect on the face of the magistrate's 

decision, this court adopts the magistrate's decision as our own, including the findings of 

fact and conclusions of law contained therein. In accordance with the magistrate's 

recommendation, we grant the requested writ of mandamus and order the ICO to vacate 

the November 16, 2015 order and enter an order that determines whether "special 

circumstances" exist to support the application for a lump sum advancement under R.C. 

4123.64 and Ohio Adm.Code 4123-3-37.

Writ of mandamus granted. 

BROWN and BRUNNER, JJ., concur. 

 

 
No. 16AP-354 3 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Giant Eagle, Inc., : 

 

 Relator, : 

 

v. : No. 16AP-354 

 

Ohio Industrial Commission : (REGULAR CALENDAR) 

and 

Henry Brown, : 

 

 Respondents. : 

 

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

Rendered on April 26, 2017

 

Matty, Henrikson, & Greve, Kirk R. Henrikson, Jesse P. 

Kanner, and Samuel T. O'Leary, for relator. 

Michael DeWine, Attorney General, and Natalie J. Tackett, 

for respondent Industrial Commission of Ohio. 

Nicholas C. DeGennaro, for respondent Henry Brown. 

 

IN MANDAMUS 

{¶ 4} In this original action, relator, Giant Eagle, Inc., requests a writ of 

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

vacate the November 16, 2015 order of its staff hearing officer ("SHO") granting to 

respondent, Henry Brown, a lump sum advancement from his award of permanent total 

disability ("PTD") compensation, and to enter an order denying the lump sum 

advancement pursuant to R.C. 4123.64 and Ohio Adm.Code 4123-3-37. 

 
No. 16AP-354 4 

Findings of Fact: 

{¶ 5} 1. On November 22, 2006, respondent, Henry Brown ("claimant") injured 

his cervical and lumbar areas while employed as a truck driver for relator, a self-insured 

employer under Ohio's workers' compensation laws. On that date, claimant was 

involved in a motor vehicle accident. 

{¶ 6} 2. The industrial claim (No. 06-886218) is allowed for: 

Cervical sprain/strain; lumbar strain/sprain; right sacroiliac 

strain; post-traumatic stress disorder; major depressive 

disorder; panic disorder. 

{¶ 7} 3. On October 5, 2009, claimant filed an application for PTD 

compensation. 

{¶ 8} 4. Following a December 22, 2010 hearing, an SHO issued an order 

awarding PTD compensation starting September 10, 2009. 

{¶ 9} 5. On July 29, 2015, on a bureau form captioned "Application for Payment 

of Lump Sum Advancement" (form C-32), claimant moved for a lump sum advancement 

of $76,940 from his PTD award. Claimant identified three loans that he would pay off: 

(1) opened September 17, 2013, a loan from US Bank with a current balance of 

$64,082.05 secured by a home mortgage, (2) opened August 22, 2014, an installment 

loan from US Bank with a current balance of $8,239.16, and (3) a loan from Wells Fargo 

to claimant's spouse in the amount of $4,639.70 secured by an automobile. 

{¶ 10} 6. Relator, as a self-insured employer, denied claimant's July 29, 2015 

application. 

{¶ 11} 7. Following a September 15, 2015 hearing, a district hearing officer 

("DHO") issued an order granting the application. The DHO's order explains: 

Mr. Brown's IC-32 [sic] Application, filed 07/29/2015, is 

granted. 

At the hearing, the parties stipulated to the fact that 

Mr. Brown is currently receiving $904.24 in bi-weekly 

Permanent Total Disability compensation benefits. 

Furthermore, the parties stipulated at the hearing that, 

based upon Mr. Brown's life expectancy of approximately 20 

years, the bi-weekly decrease in benefits attributed to the 

proposed lump sum advancement would be $147.96. Thus, 
No. 16AP-354 5 

the decrease in bi-weekly benefits would be well below the 

1/3 maximum decrease mandated in Ohio Adm.Code 4123-

3-37(C)(1). Finally, the parties stipulated at the hearing that 

there are no outstanding lump sum advancements under this 

claim. 

Based upon the foregoing facts, the lump sum advancement 

request is granted in accordance with the provisions of Ohio 

Adm.Code 4123-3-37(A) to provide Mr. Brown "financial 

relief" by repaying his loans. While Counsel for the Selfinsuring Employer voiced concerns from his client regarding 

the payment of such loans being contemplated under the 

statute and administrative code, no case law was presented 

which would restrict the interpretation of the applicable 

provisions of the administrative code cited above. 

This decision is based upon a review of Mr. Brown's IC-32 

[sic] Application and attachments, as well as, the stipulations 

made at the hearing by the parties, as set forth above. All 

evidence on file with regard to this matter was reviewed and 

considered. 

The Self-Insuring Employer is hereby ordered to comply 

with the above findings. 

{¶ 12} 8. Relator administratively appealed the DHO's order of September 15, 

2015. 

{¶ 13} 9. Following a November 16, 2015 hearing, an SHO issued an order that 

affirms the DHO's order of September 15, 2015. The SHO's order explains: 

The order of the District Hearing Officer, issued 09/17/2015, 

is affirmed. 

Therefore, the Injured Worker's C-32 Application for 

Payment of Lump Sum Advancement is granted to the extent 

of this order. 

The lump sum advancement request is granted in 

accordance with Ohio Admin. Code 4123-3-37(A) to provide 

the Injured Worker the financial relief in repaying the loans 

listed on the application for a home mortgage, an installment 

loan, and a car. 

This decision is based on a review of the C-32 application 

and loan information attached and the stipulations at 
No. 16AP-354 6 

hearing, which indicated that the lump sum advancement 

meets the criteria of Ohio Admin. Code 4123-3-37(A) and 

that the bi-weekly benefit decrease is within the mandates of 

Ohio Admin. Code 4123-3-37(C)(1). 

{¶ 14} 10. On November 25, 2015, relator administratively appealed the 

November 16, 2015 order of the SHO. 

{¶ 15} 11. On December 9, 2015, another SHO mailed an order refusing relator's 

administrative appeal from the SHO's order of November 16, 2015. 

{¶ 16} 12. On December 18, 2015, relator moved for reconsideration. 

{¶ 17} 13. On January 27, 2016, the three-member commission mailed an order 

denying reconsideration. 

{¶ 18} 14. On May 9, 2016, relator, Giant Eagle, Inc., filed this mandamus action. 

Conclusions of Law: 

{¶ 19} The issue is whether the failure of the SHO's order of November 16, 2015 

to address "special circumstances" as that term is used in R.C. 4123.64 is an abuse of 

discretion requiring this court to issue a writ of mandamus. 

{¶ 20} Finding that the failure of the SHO's order to address "special 

circumstances" is an abuse of discretion, it is the magistrate's decision that this court 

issue a writ of mandamus, as more fully explained below. 

{¶ 21} Entitlement to workers' compensation payments is a substantive right 

measured by the statutes in force on the date of the injury. State ex rel. Kirk v. OwensIllinois, Inc., 25 Ohio St.3d 360-61 (1986); Rambaldo v. Accurate Die Casting, 65 Ohio 

St.3d 281, 284 (1992); State ex rel. Jefferson Smurfit Corp. Reclamation v. Indus. 

Comm., 10th Dist. No. 09AP-851, 2010-Ohio-3521, ¶ 21. 

{¶ 22} Effective October 20, 1993 and currently, R.C. 4123.64 provides: 

(A) The administrator of workers’ compensation, under 

special circumstances, and when the same is deemed 

advisable for the purpose of rendering the injured or 

disabled employee financial relief or for the purpose of 

furthering his rehabilitation, may commute payments of 

compensation or benefits to one or more lump-sum 

payments. 
No. 16AP-354 7 

(B) The administrator shall adopt rules which set forth the 

policy for awarding lump sum payments. The rules shall: 

(1) Enumerate the allowable purposes for payments and the 

conditions for making such awards; 

(2) Enumerate the maximum reduction in compensation 

allowable; 

(3) Enumerate the documentation necessary to award a 

lump-sum payment; 

* * * 

(5) Require a fully completed and current application 

including notary and seal; and 

(6) Specify procedures to make a claimant aware of the 

reduction in amount of compensation which will occur. 

(C) An order of the administrator issued under this section is 

appealable pursuant to section 4123.511 of the Revised Code 

but is not appealable to court under section 4123.512 of the 

Revised Code. 

{¶ 23} Effective July 11, 2013 and on the date claimant filed his application for 

payment of lump sum advancement, Ohio Adm.Code 4123-3-37 provided: 

(A) The administrator of the bureau of workers' 

compensation may commute an award of compensation to a 

lump sum payment when the administrator determines that 

the advancement is advisable for the purpose of providing 

the injured worker financial relief or for furthering the 

injured worker's rehabilitation. 

(1) The administrator may only grant a lump sum payment to 

an injured worker from an award of compensation made 

pursuant to section 4123.58 of the Revised Code or from 

division (B) of section 4123.57 of the Revised Code. 

* * * 

(B) An injured worker shall file an application requesting a 

lump sum advancement with the bureau. 

(1) The application shall be fully completed and notarized. 
No. 16AP-354 8 

(2) The administrator shall review the application and utilize 

whatever methods the administrator determines to be 

appropriate, consistent with general insurance principles, to 

evaluate the claim for a lump sum payment. 

(3) If the administrator determines that the lump sum 

application is advisable, the administrator shall determine 

the amount of the biweekly rate reduction and the terms of 

such reduction. The administrator shall fix a specific time for 

the reduction of the biweekly rate of compensation to repay 

the lump sum advancement. The administrator my include 

interest in the repayment schedule. 

(4) The administrator shall issue an order approving or 

disapproving the application. If the application is approved, 

the order shall advise the injured worker of the amount of 

reduction of compensation and the terms of the lump sum 

advancement. 

{¶ 24} Effective November 13, 2015 and after the date of filing the application, 

Ohio Adm.Code 4123-3-37 was amended as it currently provides. There is no indication 

in the current provision of Ohio Adm.Code 4123-3-37 that it is intended to be applied 

retroactively, nor do the parties to this action argue that the current version of Ohio 

Adm.Code 4123-3-37 is applicable to the application filed July 29, 2015. See State ex 

rel. A.J. Rose Mfg. Co. v. Schwarz, 10th Dist. No. 11AP-379, 2012-Ohio-4367. 

{¶ 25} It can be observed that notwithstanding R.C. 4123.64(A) 's reference to 

"special circumstances," the version of Ohio Adm.Code 4123-3-37 effective July 11, 2013 

fails to reiterate "special circumstances" as a factor to be addressed by the administrator 

in his determination of whether to grant a lump sum payment. Rather the version at 

issue states that the administrator "may commute an award of compensation to a lump 

sum payment when the administrator determines that the advancement is advisable for 

the purpose of providing the injured worker financial relief or for furthering the injured 

worker's rehabilitation." 

{¶ 26} According to the commission and the claimant in this action, given the 

failure of Ohio Adm.Code 4123-3-37 to reiterate "special circumstances" as a factor to be 

addressed, the administrator is not required to address "special circumstances" in his 

order. The magistrate disagrees. 
No. 16AP-354 9 

{¶ 27} To begin, it is clear that R.C. 4123.64 provides to the employer a 

substantive right that "special circumstances" must be considered in the determination 

of whether to grant the application. Thus, even though R.C. 4123.64 commands that the 

administrator "shall adopt rules," the administrator has no authority to eliminate 

"special circumstances" from the statute by promulgating a rule that fails to require 

"special circumstances." 

{¶ 28} Clearly, R.C. 4123.64, effective October 20, 1993 and currently, provides 

substantive rights to the employer and the claimant that vested on the date of injury, i.e. 

November 22, 2006. Thus, the rule at issue here cannot be read in isolation from 

R.C. 4123.64, nor can the rule be read to eliminate "special circumstances" from the 

statute. In short, the administrator was required to address "special circumstances" 

under the statute. By the same token, both the DHO and SHO who heard the appeals 

were commanded by the statute to address "special circumstances." Neither the DHO 

nor the SHO addressed "special circumstances." Thus, the commission abused its 

discretion in failing to address "special circumstances." 

{¶ 29} Accordingly, it is the magistrate's decision that this court issue a writ of 

mandamus ordering the commission to vacate the SHO's order of November 16, 2015, 

and, in a manner consistent with this magistrate's decision, enter an order that 

determines whether "special circumstances" exist to support the application for a lump 

sum advancement under R.C. 4123.64 and the version of Ohio Adm.Code 4123-3-37 

effective July 11, 2013. 

 /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).