State v. Industrial Commission, Unpublished Decision (9-9-1999) ( 1999 )

MEMORANDUM DECISION In this original action, relator, Lawrence A. Kenyon, requests a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order denying compensation for permanent total disability and issue a new order granting such compensation, or in the alternative, issue an order which complies with State ex rel. Noll v. Indus. Comm. (1991),57 Ohio St.3d 203, and State ex rel. Stephenson v. Indus. Comm. (1987),31 Ohio St.3d 167.

This court referred the matter to a magistrate, pursuant to Civ.R. 53 and Loc.R. 12(M), of the Tenth Appellate District. The magistrate has issued a decision including findings of fact and conclusions of law and has recommended that a limited writ of mandamus issue. There have been no objections filed to the magistrate's decision.

A review of the record indicates that after relator's application for permanent total disability compensation was allowed before a staff hearing officer, the employer filed for reconsideration and the commission granted the employer a new hearing on the basis of a possibility of error in the order awarding permanent total disability compensation.

As accurately referred to by the magistrate in her decision, the order granting a new hearing constituted an abuse of discretion under State exrel. Nicholls v. Indus. Comm. (1998), 81 Ohio St.3d 454, and State ex rel.Chaffins v. Indus. Comm. (1998), 82 Ohio St.3d 268.

Following an independent review pursuant to Civ.R. 53, we find that the magistrate has properly determined the pertinent facts and applied the salient law thereto. Hence, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein.

In accordance with the recommendation contained in the magistrate's decision, we issue a limited writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order granting reconsideration on the basis of possibility of error and to further consider the request for reconsideration, either granting or denying said request for reconsideration in compliance with the previously cited cases, including Noll, supra.

Limited writ granted.

BROWN and KENNEDY, JJ., concur.