{¶ 1} Relator, Sandra M. Leto, commenced this original action in mandamus seeking an order compelling respondent Industrial Commission of Ohio ("commission") to make an award on behalf of relator's deceased husband, Ronald J. Leto ("the decedent"), for the functional loss of use of all four of the decedent's extremities.
{¶ 2} Pursuant to Civ. R. 53 and Loc. R. 12(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. (Attached as an appendix.) The magistrate found that the commission's order denying the requested award did *Page 19 not raise a "right-to-participate issue" because the denial did not determine the decedent/relator's right to participate in the workers' compensation system. Therefore, the commission's order is not appealable pursuant to R.C. 4123.512 and this court has subject-matter jurisdiction in mandamus. The magistrate also found that the issue raised by relator is ripe for consideration by this court in mandamus because decedent/relator's underlying claim has been allowed. The fact that the allowance has been appealed is immaterial because once the claim has been allowed, relator can seek medical benefits and other compensation. Moreover, employers and the commission have a statutory remedy in the event the claim allowance is reversed on appeal. Lastly, the magistrate found that the commission abused its discretion when it determined that the one-year statute of limitations set forth in R.C. 4123.60 barred relator's request for a functional-loss-of-use award. Because there is no dispute that the decedent lost the functional use of both his arms and legs as a result of injuries he sustained in connection with his allowed claim, the magistrate has recommended that we issue a writ of mandamus ordering the commission to make an award to relator for the decedent's functional loss of use of all four extremities pursuant to R.C. 4123.57(B).
{¶ 3} The commission asserts three objections in support of its contention that contrary to the magistrate's recommendation, a writ of mandamus should be denied. First, the commission contends that this mandamus action is not ripe because there is a pending appeal of the allowance of decedent/relator's underlying claim. Relying on R.C. 4123.512(H) and State ex rel. Saunders v. Indus.Comm., 101 Ohio St.3d 125, 2004-Ohio-339, 802 N.E.2d 650, at ¶ 18-21, the commission argues that because the commission cannot stay the payment of compensation for periods of total disability, the commission must stay the payment of compensation for a scheduled partial functional-loss-of-use award. Therefore, the commission asserts that this mandamus action is not ripe. We disagree.
{¶ 4} Neither R.C. 4123.512(H) norSaunders require that the commission stay a partial disability award. As noted by the magistrate, when a claim has been allowed, a claimant has the right to seek medical benefits and other compensation even though the employer may have appealed the allowance of the claim. Employers and the commission have a statutory remedy in the event the claim allowance is reversed on appeal. Because the commission was not required to stay the award, this mandamus action is ripe. Therefore, we overrule the commission's first objection.
{¶ 5} Second, the commission argues that the denial of an award based upon the one-year statute of limitations in R.C. 4123.60 involves a right-to-participate issue. In turn, the procedural vehicle for challenging a right-to-participate *Page 20 issue is an appeal to the common pleas court pursuant to R.C. 4123.512. Therefore, the commission asserts that relator is not entitled to relief in mandamus, because she has an adequate remedy at law. We disagree.
{¶ 6} It is undisputed that the commission specifically based its decision on the statute of limitations contained in R.C. 4123.60. As counsel for relator points out, R.C. 4123.60 expressly prohibits an appeal to the court under R.C. 4123.512. Therefore, contrary to the commission's assertion, relator does not have an adequate remedy at law. Accordingly, we overrule the commission's second objection.
{¶ 7} Lastly, the commission argues that the one-year statute of limitations contained in R.C. 4123.60 bars relator's functional-loss-of-use award. R.C. 4123.60 states:
If the decedent would have been lawfully entitled to have applied for an award at the time of his death the administrator may, after satisfactory proof to warrant an award and payment, award and pay an amount, not exceeding the compensation which the decedent might have received, but for his death, for the period prior to the date of his death, to such of the dependents of the decedent, or for services rendered on account of the last illness or death of such decedent, as the administrator determines in accordance with the circumstances in each such case, but such payments may be made only in cases in which application for compensation was made in the manner required by this chapter, during the lifetime of such injured or disabled person, or within one year after the death of such injured or disabled person.
{¶ 8} According to the commission, because relator could have applied for the functional-loss-of-use award at the time of the decedent's death (even though the claim had not been allowed at that point), her failure to file for the award within one year after the decedent's death bars her from receiving an award under the one-year statute of limitations contained in R.C. 4123.60. Again, we disagree.
{¶ 9} The resolution of this issue turns on the meaning of the phrase "[i]f the decedent would have been lawfully entitled to have applied for an award at the time of his death." The commission interprets this phrase to mean that because the decedent, while he lived, could have applied for any sort of condition, compensation, or benefit associated with his claim after the first report of injury was filed, relator had to submit her application for the functional-loss-of-use award within one year after the decedent's death. The magistrate focused on the words "lawfully entitled" and interpreted the phrase to mean that because the decedent had no lawful basis for receiving a scheduled loss award until his claim was allowed, the one-year statute of limitations did not bar relator's application. *Page 21
{¶ 10} We conclude that the words "lawfully entitled" create an ambiguity regarding the meaning of the phrase at issue here. However, we are mindful that R.C. 4123.95 requires us to liberally construe R.C. 4123.01 through 4123.94 in favor of employees and the dependents of deceased employees. Liberally construing R.C. 4123.60 in favor of relator, we agree with the magistrate that relator, as the decedent's surviving spouse, was not "lawfully entitled" to have applied for an award for the decedent's total loss of use of his extremities until the commission mailed its order granting the decedent the right to participate in the workers' compensation system on July 7, 2006. Therefore, the one-year statute of limitations contained in R.C. 4123.60 does not bar relator's functional-loss-of-use award. Accordingly, we overrule the commission's third objection.
{¶ 11} Respondent Ohio Department of Transportation ("ODOT") has also filed objections to the magistrate's decision. ODOT objects on the same grounds contained in the commission's second and third objections. For the same reasons we expressed in overruling the commission's objections, we also overrule ODOT's objections.
{¶ 12} Following an independent review of this matter, we find that the magistrate has properly determined the facts and applied the appropriate law. Therefore, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we grant relator's request for a writ of mandamus and order the commission to make an award to relator for the decedent's functional loss of use of both his arms and legs.
Objections overruled; writ of mandamus granted.
TYACK, J., concurs.
FRENCH, J., dissents.