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State ex rel Gundy v. Industrial Commission of Ohio9/27/2005
(REGULAR CALENDAR)
DECISION
ON OBJECTION TO THE MAGISTRATE'S DECISION
IN MANDAMUS
{ } In this original action, relator, Marvin Van Gundy, asks this court to issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order in which the commission exercised its continuing jurisdiction over relator's application for an increase in his percentage of permanent partial disability ("PPD") compensation and ordering the commission to reinstate its prior order in which the commission found that relator had a five percent increase in his percentage of PPD.
{ } This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, recommending that this court deny the requested writ. (Attached as Appendix A.) Relator has filed a single objection to the magistrate's decision:
By Refusing to Exclude a Lapsed Claim From the Aggregation of Permanent Partial Disability Awards, the Magistrate Ignored the Supreme Court's Pronouncements Regarding the Purpose and Spirit of Permanent Partial Awards, and Instead, Condoned the Industrial Commission of Ohio's Rigid Application of an Artificial Cap on Damages Which Has the Effect of Failing to Properly Compensate Injured Workers, and Forcing Injured Workers to Leave the Workforce Rather than Risk Additional Injuries for Which They Will Not Be Compensated.
{ } By his objection, relator submits essentially the same arguments he made to the magistrate. The magistrate considered those arguments and concluded that the explicit language of R.C. 4123.57 caps cumulative PPD awards at 100 percent and, therefore, limits relator's PPD award. R.C. 4123.52, which precludes the commission from making any modification, change, finding or award in any claim where the last payment of compensation has been ten or more years ago, does not impact that cap. We agree with the magistrate's analysis and reasoning.
{ } Based on an independent review of the evidence, we adopt the magistrate's decision, including the findings of fact and conclusions of law contained it. In accordance with the magistrate's decision, we deny the requested writ of mandamus.
Objection overruled, writ of mandamus denied.
PETREE and TRAVIS, JJ., concur.
APPENDIX A
MAGISTRATE ' S DECISION
Rendered on April 21, 2004
IN MANDAMUS
{ } Relator, Marvin Van Gundy, 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 wherein the commission exercised its continuing jurisdiction over relator's application for an increase in his percentage of permanent partial disability ("PPD") compensation and ordering the commission to reinstate its prior order wherein the commission found that relator had a five percent increase in his percentage of PPD.
Findings of Fact:
{ } 1. Relator has five separate claims which have been recognized by the Ohio Bureau of Workers' Compensation ("BWC"). The oldest of those claims stems from an industrial injury which occurred in 1982. In that claim, relator had received a ten percent PPD award. Because no compensation has been paid in that claim for ten years, the claim has expired.
{ } 2. Relator has received various awards relative to his other allowed claims and has been awarded PPD compensation relative to each of the allowed claims.
{ } 3. On Augus
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