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State ex rel Thompson v. Ohio Edison Co.6/6/2002
(REGULAR CALENDAR)
DECISION
IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION
. Relator, Joann M. Thompson, commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its order denying her November 16, 1999 motion that the self-insured employer be ordered to repay the amount that the employer withheld from relator's death claim benefits for an overpayment of death claim benefits.
. Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. (Magistrate's Decision attached as Appendix A.) In the decision, the magistrate concluded that application of R.C. 4123.511(J) to the death claim overpayment (1) does not contravene the constitutional ban on retroactive legislation, and (2) the statute permits recoupment of an overpayment in a death claim. Accordingly, the magistrate determined the requested writ should be denied.
. Relator has filed objections to the magistrate's decision:
1. The Magistrate erred in not finding that Respondents unlawfully retroactively applied R.C. 4123.511(J), and in finding that R.C. 4123.511(J) was a procedural, rather than a substantive, change in the law.
2. The Magistrate erred in finding that R.C. 4123.511(J) applies to an award of death benefits and permits recouping an overpayment from a death benefit award.
. Relator's objections reargue those matters adequately addressed in the magistrate's decision. As the decision observes, in State ex rel. Farwick v. The Hoover Co. (1999), Franklin App. No. 97AP-1708, this court noted its prior decision in Cable v. Indus. Comm. (1996), Franklin App. No. 95AP-737, and stated:
* In Cable, this court looked at the date of the order granting temporary total disability compensation that was subsequently modified and resulted in an overpayment. Because the commission's order granting compensation was made after October 20, 1993, this court found that R.C. 4123.511(J) applied.
. Applying Cable and Farwick, the magistrate properly concluded that R.C. 4123.511(J) applies to overpayments occurring in the death claim at issue because the death claim was allowed following the July 22, 1994 hearing, which post-dates the effective date of the section at issue.
. Moreover, the magistrate properly found the statute applies to death claims because it applies to "any claim, past, present, or future under Chapter 4121., 4123., 4127., or 4131. of the Revised Code." That language encompasses death claims, which fall under R.C. Chapter 4123. Accordingly, relator's objections are overruled.
. Following independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, we deny the requested writ of mandamus.
Objections overruled; writ denied.
TYACK, P.J., and DESHLER, J., concur.
APPENDIX A
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
State of Ohio ex rel. Joann M. Thompson, Relator, v. Ohio Edison Company and The Industrial Commission of Ohio, Respondents.
No. 01AP-1072
(REGULAR CALENDAR)
MAGISTRATE'S DECISION
Rendered on March 29, 2002
Stewart Jaffy & Associates Co., LPA, and Rachel
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