[Cite as State ex rel. Davidson v. John T. Lohrer Constr. Co., 2024-Ohio-1224.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Craig S. Davidson, :
Relator, :
No. 22AP-465
v. :
(REGULAR CALENDAR)
John T. Lohrer Construction Co. et al., :
Respondents. :
D E C I S I O N
Rendered on March 29, 2024
On brief: Weisser & Wolf, and Mark Weisser, for relator.
On brief: Dave Yost, Attorney General, and Anna Isupova, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
MENTEL, P.J.
{¶ 1} Relator, Craig S. Davidson, brought this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio (“commission”), to vacate
its order that denied his request for temporary total disability (“TTD”) compensation, and
to enter an order granting said compensation.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate. On November 6, 2023, the magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
court grant relator’s petition for writ of mandamus finding that the commission abused its
discretion and improperly construed and applied amended R.C. 4123.56(F). The magistrate
No. 22AP-465 2
concluded that relator is entitled to TTD compensation from December 2, 2021 through
March 24, 2022 to continue upon the submission of medical evidence. No objections were
filed in this case. “If no timely objections are filed, the court may adopt a magistrate’s
decision, unless it determines that there is an error of law or other defect evident on the
face of the magistrate’s decision.” Civ.R. 53(D)(4)(c). Our review of the magistrate’s
decision reveals no error of law or other facial defect that would preclude adopting it. See,
e.g., State ex rel. Wyse v. Ohio Pub. Emp. Retirement Sys, 10th Dist. No. 22AP-25, 2024-
Ohio-314, ¶ 2, citing State ex rel. Alleyne v. Indus. Comm., 10th Dist. No. 03AP-811, 2004-
Ohio-4223 (adopting the magistrate’s decision where no objections were filed).
{¶ 3} Accordingly, we adopt the decision of the magistrate as our own, including
findings of fact and conclusions of law contained therein. In accordance with the
magistrate’s decision, we grant relator’s petition for a writ of mandamus.
Writ of mandamus granted.
BEATTY BLUNT and EDELSTEIN, JJ., concur.
_____________
No. 22AP-465 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Craig S. Davidson, :
Relator, :
v. : No. 22AP-465
John T. Lohrer Construction Co. et al., : (REGULAR CALENDAR)
Respondents. :
M A G I S T R A T E’ S D E C I S I O N
Rendered on November 6, 2023
Weisser & Wolf, and Mark Weisser, for relator.
Dave Yost, Attorney General, and Anna Isupova, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 4} Relator, Craig S. Davidson (“claimant”), has filed this original action
requesting this court issue a writ of mandamus ordering respondent, Industrial
Commission of Ohio (“commission”), to vacate its order that denied his request for
temporary total disability (“TTD”) compensation, and to enter an order granting said
compensation.
Findings of Fact:
{¶ 5} 1. On November 7, 2011, claimant sustained an injury in the course of and
arising out of his employment with respondent, John T. Lohrer Construction Co.
(“employer”), when he was involved in a car accident. His workers’ compensation claim
No. 22AP-465 4
was allowed for the following conditions: sprain neck; sprain thoracic region; sprain
lumbar region; contusion back; contusion buttock; disc extrusion L4-L5; spinal stenosis
lumbar region; L4-L5; radiculopathy L4-L5 and L5-S1; and major depressive disorder,
single episode, moderate.
{¶ 6} 2. On October 13, 2015, claimant underwent a lumbar fusion under his
claim.
{¶ 7} 3. On February 10, 2017, claimant underwent a spinal cord stimulator
implantation procedure. On March 2, 2018, claimant underwent a revision surgery to
adjust the spinal cord stimulator.
{¶ 8} 4. On February 15, 2018, claimant’s claim was amended to include major
depressive disorder, single episode, moderate.
{¶ 9} 5. Claimant received TTD compensation for his allowed psychological
condition until November 26, 2019, when he was found to be at maximum medical
improvement (“MMI”).
{¶ 10} 6. On December 19, 2018, D. Scott Long, M.D., found that claimant had not
reached MMI.
{¶ 11} 7. In a December 11, 2019, office note, Barry Rubin, D.O., claimant’s treating
physician, found claimant was “probably at MMI” for the physical conditions allowed in
the claim. After this office note, Dr. Rubin did not complete any MEDCO-14 forms
indicating that claimant was TTD as a result of the allowed physical conditions.
{¶ 12} 8. In early- to mid-2020, due to COVID-19, commission hearings were
suspended, and claimant’s medical treatments took place via teleconferencing.
{¶ 13} 9. On February 28, 2020, claimant filed a request for a CT scan. The request
was initially denied, but after commission hearings resumed, the commission approved
the CT scan in July 2020.
{¶ 14} 10. On March 29, and April 1, 2021, claimant received epidural steroid
injections. A May 13, 2021, office note from Janalee Rissover, M.D., indicated that the
injections were not effective and recommended a neurological consult with Christopher
Neumann, M.D.
No. 22AP-465 5
{¶ 15} 11. On September 13, 2021, Dr. Neumann, submitted a request for surgery
to repair the prior lumbar microdiscectomy, which was subsequently approved, and the
procedure was performed on December 2, 2021.
{¶ 16} 12. On December 17, 2021, claimant filed a request for TTD compensation
from the date of his back surgery on December 2, 2021, through March 24, 2022, and to
continue with medical proof. Claimant submitted a MEDCO-14 signed by Dr. Neumann.
{¶ 17} 13. On February 15, 2022, a district hearing officer (“DHO”) held a hearing
on claimant’s request for TTD compensation, and on February 17, 2022, the DHO denied
claimant’s request, finding the following: (1) claimant last worked on June 26, 2012, and
has not worked anywhere since; (2) Dr. Rubin opined on December 11, 2019, that
claimant was probably at MMI; (3) claimant was found to have reached MMI on his
psychological conditions on November 26, 2019, and did not attempt to return to work
thereafter; (4) claimant had surgery under this claim on December 2, 2021; (5) claimant
had not worked for nine and one-half years prior to his surgery, and more recently had
not worked since he was found to have reached MMI over two years prior to his surgery;
and (6) pursuant to R.C. 4123.56(F), claimant has failed to provide sufficient evidence
that he suffered a wage loss as a direct result of his injury. Claimant appealed.
{¶ 18} 14. On April 6, 2022, the staff hearing officer (“SHO”) issued an order
finding the following: (1) claimant failed to satisfy his burden of proving by a
preponderance of the evidence that he was entitled to TTD compensation; (2) claimant
was not in the workforce as of December 2, 2021, and is, therefore, not entitled to TTD
compensation beginning on that date; (3) claimant was last paid TTD compensation on
November 26, 2019, when he was found by the commission to be at MMI for the allowed
psychological condition; (4) while there does not appear to be a formal finding of MMI
for the allowed physical conditions, claimant’s then treating physician, Dr. Rubin, stated
in his December 11, 2019, office note that claimant was probably at MMI for the allowed
physical conditions; (5) Dr. Rubin did not complete any MEDCO-14 forms (Physician’s
Report of Work Ability) subsequent to this time indicating that claimant was TTD as a
result of the allowed physical conditions; (6) rather, Dr. Rubin completed a C-9 Request
for Medical Service Reimbursement on January 27, 2020, and a February 24, 2020,
MEDCO-14 indicating that claimant should participate in vocational rehabilitation and
No. 22AP-465 6
requesting the same; however, claimant withdrew this request, per the commission’s
July 30, 2020, order; (7) claimant made no meaningful attempt to try to secure
employment from the time he was found to be at MMI for the allowed psychological
condition until the request for TTD compensation to begin on December 2, 2021, for the
allowed physical conditions; (8) claimant underwent lower-back surgery on December 2,
2021, as a result of the allowed medical conditions, and claimant requested TTD
compensation from this date forward; (9) under R.C. 4123.56(F), a claimant must prove
that the work-related injuries removed the worker from employment, and this
requirement for TTD compensation cannot be satisfied if the worker is out of the
workforce at the time of the beginning of the alleged period of disability;
(10) R.C. 4123.56(F) is consistent with this long-standing law in Ohio;
(11) R.C. 4123.56(F) essentially directs an inquiry into why an injured worker is off work;
if the worker is off work as a result of being unable to work due to impairment from the
injury in the claim, then the worker is entitled to compensation for being off work;
however, if the worker is already off work for reasons unrelated to the injury in the claim,
then compensation is not payable; (12) claimant last received TTD compensation on
November 26, 2019, when he was found by the commission to be at MMI for the allowed
psychological condition; (13) from that point forward, no physician disabled claimant
from employment for the allowed physical conditions until December 2, 2021, a period of
over two years; (14) there was insufficient evidence that claimant was in the workforce or
attempted to make any meaningful effort to find employment during the period from
November 26, 2019, through December 1, 2021, a period of over two years; (15) claimant
was not removed from the workforce as a result of the December 2, 2021, lower-back
surgery; rather, claimant’s work status was not affected in any way, as claimant was not
in the workforce prior to the period of disability requested; (16) claimant’s actions, or
more accurately lack of proof of any action in trying to find employment for over two
years, show he was no longer in the workforce, thereby precluding him from receiving
TTD compensation; and (17) therefore, claimant has failed to satisfy his burden of proving
his entitlement to TTD compensation from December 2, 2021, to the date of the hearing,
and continuing.
No. 22AP-465 7
{¶ 19} 15. Claimant filed an appeal of the SHO order, which the commission
refused. Claimant then filed a request for reconsideration, and the commission granted a
hearing on the request.
{¶ 20} 16. On July 20, 2022, the commission issued an order denying claimant’s
request for reconsideration, finding the following: (1) the commission does not have
authority to exercise continuing jurisdiction; and (2) claimant failed to meet his burden
of proving sufficient grounds exist to justify the exercise of continuing jurisdiction.
{¶ 21} 17. On July 27, 2022, claimant filed the current petition for writ of
mandamus.
Conclusions of Law and Discussion:
{¶ 22} The magistrate recommends that this court grant claimant’s petition for
writ of mandamus.
{¶ 23} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of the
law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 24} A clear legal right to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order that is not supported by any
evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On
the other hand, where the record contains some evidence to support the commission’s
findings, there has been no abuse of discretion and mandamus is not appropriate. State
ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions
of credibility and the weight to be given evidence are clearly within the discretion of the
commission as fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 25} TTD compensation awarded pursuant to R.C. 4123.56 is compensation for
wages lost when a claimant’s injury prevents a return to the former position of
employment. Upon that predicate, TTD compensation shall be paid to a claimant until
one of four things occurs: (1) the claimant has returned to work; (2) the claimant’s treating
physician provides a written statement that the claimant is able to return to the former
position of employment; (3) work within the physical capabilities of the claimant is made
available by the employer or another employer; or (4) the claimant has reached maximum
No. 22AP-465 8
medical improvement. R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio
St.2d 630 (1982).
{¶ 26} R.C. 4123.56, which was amended by H.B. No. 81, effective September 15,
2020, modified the prior version of R.C. 4123.56 by adding the following entirely new
language pertaining to voluntary abandonment:
(F) If an employee is unable to work or suffers a wage loss as the
direct result of an impairment arising from an injury or occupational
disease, the employee is entitled to receive compensation under this
section, provided the employee is otherwise qualified. If an employee
is not working or has suffered a wage loss as the direct result of
reasons unrelated to the allowed injury or occupational disease, the
employee is not eligible to receive compensation under this section.
It is the intent of the general assembly to supersede any previous
judicial decision that applied the doctrine of voluntary abandonment
to a claim brought under this section.
{¶ 27} In the present case, claimant argues there is no legitimate dispute that his
loss of earnings from December 2, 2021, to March 24, 2022, was proximately caused by
his work injury. Claimant asserts that the commission abused its discretion when it
concluded his failure to seek employment from November 26, 2019, (when he was found
to be at MMI on his psychological conditions) until December 2, 2021, precluded the
receipt of TTD compensation. Claimant claims he was actively treating and attempting to
diagnose the ongoing issues with his lumbar spine and that he was, in fact, incapable of
work during this period, pointing out the following: (1) he was never found to have
reached MMI with respect to the allowed physical conditions, and on December 19, 2018,
Dr. Long found he was not at MMI; (2) during the COVID-19 pandemic starting in
March 2020, he could only be treated telephonically, but Dr. Rissover did request a CT
scan, which was eventually approved in July 2020; (3) Dr. Rissover requested epidural
steroid injections, which were approved in early 2021; (4) he underwent the injections on
March 29, and April 1, but on May 13, 2021, Dr. Rissover noted that the injections were
not effective and requested a neurosurgical consultation with Dr. Neumann; (5) a
myelogram was conducted on August 16, 2021, showing a failed instrumentation from the
prior lumbar surgery, resulting in a request for surgery by Dr. Neumann on November 16,
2021; (6) Dr. Neumann performed the surgery on December 2, 2021; (7) Dr. Neumann
submitted MEDCO-14 forms certifying TTD from December 2, 2021, through June 30,
No. 22AP-465 9
2022; (8) Dr. Rissover completed a MEDCO-14 certifying TTD compensation from
November 26, 2019, through December 2, 2021; (9) there is no medical evidence
suggesting that claimant was not disabled from returning to his former position of
employment during this period; and (10) there was no administrative finding that he had
ever reached MMI as to his physical conditions prior to December 2, 2021. Accordingly,
claimant contends that, applying R.C. 4123.56(F), he was unable to work from
December 2, 2021 (the date of surgery), through March 24, 2022, as a direct result of his
allowed injuries, and he was not working during this period solely due to his allowed
injuries.
{¶ 28} This court’s recent decision in State ex rel. AutoZone Stores, Inc. v. Indus.
Comm., 10th Dist. No. 21AP-294, 2023-Ohio-633, is instructive. In AutoZone, the
claimant was working as an assistant store manager for the employer when he sustained
an injury. A workers’ compensation claim was allowed, and the claimant was placed on
light duty. The claimant was then involved in an argument with another employee and
was terminated. The claimant filed a request for TTD compensation, which was denied by
the employer. The claimant then underwent an approved shoulder surgery, and a
physician issued MEDCO-14 forms indicating the claimant could not work until further
evaluation. The DHO denied the claimant’s request for TTD compensation after
examining the details of the claimant’s termination. After the claimant appealed, the SHO
granted the claimant’s request for TTD compensation, but only for the period between his
surgery and the hearing with the SHO. In doing so, the SHO rejected the employer’s
argument that TTD compensation should be denied since the claimant had been
terminated. Instead, the SHO determined, based on the fact the claimant was under
restrictions due to the allowed conditions at the time of the termination and was
completely removed from the workforce after the subsequent approved surgery (as
evidenced by the MEDCO-14 forms), pursuant to R.C. 4123.56(F), the claimant was
unable to work as a direct result of an impairment arising from the allowed injury from
the date of the allowed surgery through the date of the hearing. In the employer’s writ of
mandamus action, the magistrate denied a writ, and this court denied the employer’s
subsequent objections.
In AutoZone, with regard to the first section of R.C.
4123.56(F), the employer argued the claimant was unable to
No. 22AP-465 10
work as a direct result of his prior job termination, not his
impairment arising from the subsequent allowed surgery.
This court addressed ‘‘direct result,’’ as used in both the first
and second sentences in R.C. 4123.56(F), as follows: Reading
the ordinary meaning of ‘‘direct’’ within the context of the
statute as a whole, R.C. 4123.56(F) requires a claimant’s
inability to work to stem immediately from an impairment
arising from an injury or occupational disease. We decline to
extrapolate an additional requirement in R.C. 4123.56(F) that
a claimant prove he or she is unable to work only due to an
impairment arising from an injury or occupational disease.
Such a reading would in essence add words to the statute,
which courts are not permitted to do. [Gabbard v. Madison
Local School Dist. Bd. of Edn., 165 Ohio St.3d 390, 2021-
Ohio-2067, ¶ 13]. Furthermore, the second sentence of
R.C. 4123.56(F) shows the legislature contemplated that
multiple ‘‘reasons’’ may contribute to a claimant being unable
to work, and only when those reasons are ‘‘unrelated’’ to the
workplace injury would TTD be inappropriate.
R.C. 4123.56(F). To instead adopt the employer’s position
would, in essence, turn the court’s gaze back to those facts
surrounding why the claimant left the workforce preceding
the period of TTD compensation—effectively resurrecting the
voluntary abandonment analysis expressly superseded by the
legislature.
AutoZone at ¶ 22.
{¶ 29} Thus, this court in AutoZone concluded the magistrate did not err in
determining claimant was unable to work as a ‘‘direct’’ result of his workplace injury
under R.C. 4123.56(F).
{¶ 30} AutoZone guides the present case. The key facts in AutoZone are similar to
those here. In both cases, the injured workers were not working before their allowed
surgery that rendered them temporarily and totally disabled. The injured workers in both
cases were unemployed immediately preceding allowed surgeries that were necessitated
by the industrial injury. Both workers then applied for TTD compensation because they
were unable to work in any capacity after the allowed surgeries, a fact supported by the
medical evidence in both cases. This court in AutoZone found the claimant’s
circumstances fit within the first sentence in R.C. 4123.56(F), because the claimant was
unable to work as a direct result of his workplace injury after he underwent the allowed
surgery. Therefore, the magistrate finds that the present circumstances fall within the
No. 22AP-465 11
purview of the first sentence in R.C. 4123.56(F) because claimant was unable to work as
a direct result of the allowed surgery that was necessitated by his workplace injury.
{¶ 31} However, the commission argues that in considering the second sentence in
R.C. 4123.56(F), the commission must undergo an analysis as to why the employee is not
working as of the date of the alleged period of TTD. The commission points out that the
SHO here did such an analysis and found claimant was not working as of November 26,
2019, for reasons unrelated to the allowed conditions in the claim, and, thus, he was not
removed from the workforce as a result of his December 2, 2021, surgery. The commission
asserts that the SHO properly determined that claimant’s work status was not affected in
any way by the surgery because he was not in the workforce prior to the requested period
of disability. Applying the second sentence in R.C. 4123.56(F) to the present case, the
commission urges that claimant was not working and had suffered a wage loss as the
direct result of reasons unrelated to the allowed injury; i.e., his choice to no longer work.
{¶ 32} The commission’s argument sounds like the doctrine of voluntary
unemployment, which was explicitly superseded by the amendment of R.C. 4123.56(F).
It is also the same argument made by the employer in AutoZone and rejected by this court.
It is clear from AutoZone that the fact that an injured worker was not working prior to the
claimed period of TTD does not automatically disqualify a claimant from receiving TTD
compensation, as the commission acknowledged in AutoZone. AutoZone at ¶ 30.
Similarly, in AutoZone, this court rejected the concept that an injured worker is not
entitled to TTD compensation unless he is employed and actually suffered lost wages at
the time of the claimed period of TTD. Id. at ¶ 32-33. Also with regard to the second
sentence in R.C. 4123.56(F), in AutoZone we addressed the employer’s argument that the
magistrate erred when he found that a claimant’s reasons for not working up to the date
of his surgery were irrelevant. This court noted that the cases relied upon by the employer
to challenge the magistrate’s statement relied on the doctrine of voluntary abandonment.
Id. at ¶ 34. We found that, ‘‘[a]lthough the employer implies we should analyze the effect
of the termination and whether evidence exists that claimant had abandoned the
workforce prior to his approved surgery, this is exactly the analysis the legislature
expressly superseded by enacting R.C. 4123.56(F).’’ Id. We explained that, ‘‘[c]ontrary to
the employer’s position, R.C. 4213.56(F) requires us to review only whether the claimant
No. 22AP-465 12
in this case was unable to work as the direct result of an impairment arising from an injury
or occupational disease to support the grant of TTD for the period specified.’’ Id.
This court in AutoZone then went on to summarize, as
follows: Overall, we find the text of R.C. 4123.56(F) to be
unambiguous. If a claimant is unable to work, R.C. 4123.56(F)
sets forth two operative questions to be eligible for TTD
compensation: (1) whether he or she is unable to work as the
direct result of an impairment arising from an injury or
occupational disease; and (2) whether he or she is otherwise
qualified to receive TTD compensation. R.C. 4123.56(F) does
not impose an additional requirement on a claimant to prove
he or she is unable to work solely due to an impairment
arising from an injury or occupational disease. Only when an
otherwise qualified claimant is not working as a direct result
of reasons unrelated to the allowed injury or occupational
disease is the claimant ineligible to receive TTD
compensation.
Applied here, record evidence, namely the MEDCO-14 forms
submitted by claimant’s physician, demonstrated claimant
was completely unable to work following the approved
surgery necessitated by an impairment from a workplace
injury. We find the evidence sufficient to satisfy the first
sentence of R.C. 4123.56(F), showing claimant was unable to
work as the direct result of an impairment arising from his
workplace injury for the period at issue, and concomitantly
sufficient to negate the second sentence of R.C. 4123.56(F),
showing the reasons claimant is not working are not
‘‘unrelated’’ to the allowed injury. Therefore, because some
evidence supports the commission’s decision to grant TTD
compensation in this case, we cannot disturb the order.
Id. at ¶ 35-36.
{¶ 33} Nowhere in the first paragraph above did this court indicate that the
commission must look back to the time prior to the period of claimed TTD and determine
why a claimant was not working. The court also did not undergo such an analysis in the
second paragraph above to determine the claimant’s eligibility for TTD. Instead, as this
court explained, if a claimant is unable to work, R.C. 4123.56(F) sets forth only two
operative questions to be eligible for TTD compensation: (1) whether he or she is unable
to work as the direct result of an impairment arising from an injury or occupational
disease; and (2) whether he or she is otherwise qualified to receive TTD compensation.
There is no requirement that a claimant prove he or she is unable to work solely due to an
No. 22AP-465 13
impairment arising from an injury or occupational disease. In other words, although there
may be other reasons why an employee is not working, as long as he or she is unable to
work as the direct result of an impairment arising from an injury or occupational disease,
that is sufficient for TTD-compensation eligibility.
{¶ 34} As applied here, similar to AutoZone, the MEDCO-14 form signed by
Dr. Neumann demonstrated claimant was unable to work following the approved surgery
necessitated by an impairment from a workplace injury. Thus, there was uncontroverted
evidence sufficient to satisfy the first sentence of R.C. 4123.56(F), showing claimant was
unable to work as the direct result of an impairment arising from his workplace injury for
the period at issue. Concomitantly, there was also evidence sufficient to negate the second
sentence of R.C. 4123.56(F), showing the reasons claimant was not working after the
surgery are not ‘‘unrelated’’ to the allowed injury. Consistent with this magistrate’s
explanation in AutoZone at ¶ 63, the reason claimant was not working up until the date
of surgery is irrelevant for purposes of determining his eligibility for wage-loss
compensation after the surgery due to the allowed conditions. Even if it were assumed
that claimant was not working prior to the surgery based on personal choice or other
reasons, once claimant underwent surgery due to his allowed workplace injury, the reason
he was not working at that point could no longer be directly attributable to reasons
unrelated to the workplace injury. Instead, claimant’s not working, at that point, was
directly attributable to his surgery, which was necessitated by an allowed workplace
injury. Even if no physician disabled claimant from employment for the allowed physical
conditions until December 2, 2021, as the SHO found, the surgery completely removed
him from the workforce per Dr. Neumann’s MEDCO-14.
{¶ 35} For these reasons, the magistrate finds the commission abused its
discretion and improperly construed and applied amended R.C. 4123.56(F). Claimant is
entitled to TTD compensation from December 2, 2021, through March 24, 2022, to
continue upon the submission of medical evidence.
{¶ 36} Accordingly, it is the magistrate’s recommendation that this court should
grant the claimant’s petition for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
No. 22AP-465 14
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). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.