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State ex rel Honda of America Manufacturing9/8/2005
(REGULAR CALENDAR)
DECISION
IN MANDAMUS
ON OBJECTIONS TO MAGISTRATE'S DECISION
{ } Relator, Honda of America Manufacturing, Inc. ("Honda"), commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its order denying Honda's motion (1) to declare as an overpayment all temporary total disability compensation paid to respondent, Edith K. Anderson, starting December 20, 2002, and (2) to find Anderson to have fraudulently obtained the compensation. Honda requests a writ that orders the commission to enter an order declaring the overpayment and finding that respondent Anderson fraudulently obtained the compensation.
{ } 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. (Attached as Appendix A.) In his decision the magistrate concluded that Anderson was working during the period in which she received temporary total disability compensation, and so the magistrate declared an overpayment. The magistrate, however, also determined that the commission did not abuse its discretion in concluding Anderson did not fraudulently obtain the compensation. Accordingly, the magistrate determined the court should issue a writ that orders the commission to vacate the January 13, 2004 order of its staff hearing officer and, in a manner consistent with his decision, enter a new order that declares an overpayment of temporary total disability compensation.
{ } Honda filed an objection to the magistrate's conclusions of law:
The Magistrate Erred In Concluding That The Industrial Commission Did Not Abuse Its Discretion In Failing to Find That Respondent Edith Anderson committed fraud in securing temporary total disability compensation.
{ } In addition, Anderson filed objections to the magistrate's conclusions of law:
OBJECTION No. 1
The magistrate improperly applied State ex rel. Ford v. Indus. Comm., 2002-Ohio-7038, in determining that the claimant actively generated revenue and, thus, was engaged in sustained remunerative employment.
OBJECTION No. 2
The magistrate incorrectly reweighed the evidence reaching different factual conclusions than the commission and improperly assumed that claimant's investment will generate a profit that should be construed as remuneration.
{ } Because the objections are interrelated, we address them jointly. Together, they challenge both aspects of the magistrate's decision: (1) its conclusion that Anderson was working during the period in which she received temporary total disability compensation, and (2) its conclusion that Anderson did not fraudulently obtain such compensation.
{ } Addressing first the issue of whether Anderson was working during the time period in which she received the disputed compensation, the magistrate concluded Anderson was working and premised his decision on three points. The magistrate first concluded the commission misapplied the Ohio Supreme Court's decision in State ex rel. Ford Motor Co. v. Indus. Comm., 98 Ohio St.3d 20, 2002-Ohio-7038.
{ } The parties appear to agree that Ford is the seminal case in determining whether Anderson was working while she was receiving temporary total disability compensation. In Ford, the Supreme Court concluded the claimant there was not working, explaining that " ctivities that are not medically inconsistent * * * bar [temporary total compensation] only when a claimant is remunerated for them." Id. at . Rejecting Ford's contenti
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