3In ttje 6Uprem.E Court of otd APPELLANT, INDUSTRIAL COMMISSION OF OHIO'S, MEMORANDUM CONTRA TO APPELLEE'S MOTION FOR RECONSIDERATION

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1 3In ttje 6Uprem.E Court of otd State of Ohio ex rel. Mosier Industrial Services Corporation, CASE NO vs. Appellee, On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Industrial Commission of Ohio, et al., Appellant. Court of Appeals Case No. 05AP-1096 APPELLANT, INDUSTRIAL COMMISSION OF OHIO'S, MEMORANDUM CONTRA TO APPELLEE'S MOTION FOR RECONSIDERATION JOHN TARKOWSKY ( ) Baran, Piper, Tarkowsky, Fitzgerald, & Theis Co., L.P.A. 3 North Main Street, Suite 500 Phone: (419) Fax: (419) baranlaw.com Counsel for Appellee, Mosier Industrial Services Corporation E DD FED 19 t(l03 CLERK OE COURT SUPREME COURT Of OH10 MARC DANN Attorney General of Ohio CHARISSA D. PAYER ( ) Assistant Attorney General 150 East Gay Street, 22"d Floor Columbus, Ohio Phone: (614) Fax: (614) cpayer@ag.state.oh.us Counsel for Appellant, Industrial Commission of Ohio DEAN A. CATIGNANI ( ) 4005 West Central Avenue Toledo, Ohio Phone: (419) Fax: (419) catcher225@aol.com Counsel for Shawn Walker

2 MEMORANDUM CONTRA TO APPELLEE'S MOTION FOR RECONSIDERATION Appellant, the Industrial Commission of Ohio ("commission"), responds in opposition to Appellee, Mosier Industrial Services Corporation's ("Mosier's"), Motion for Reconsideration, by restating its argument supporting a dismissal of this case for mootness as if fully rewritten herein. The commission maintains that Shawn Walker's ("Walker's") return to work for Mosier in January 2006, and his death in April 2006, render this case moot. Mosier's requested writ of mandamus, filed in 2005 with the Tenth District Court of Appeals ("appellate court") in this case, became moot when Mosier permitted Walker to return to his former position of employment in January of By allowing Walker to come back to work, Mosier voluntarily accepted that Walker was physically capable of working at his former position of employment despite his industrial injury. Moreover, once Walker returned to work, Mosier no longer had to pay him wage continuation because Walker was no longer incurring a loss of income based on his inability to return to his former position of employment due to his industrial injury. In other words, the issue of whether he had reached maximum medical improvement ("MMI") had already been resolved. As the MMI decision was at the heart of Mosier's argument on the merits, once Mosier allowed Walker to return to his former position of employment, there was nothing for the appellate court to decide and the case was moot. And if Walker's return to work for Mosier in January 2006 was not enough to moot this case, Walker's death four months later on April 21, 2006, certainly was. Mosier's request for a writ of mandamus in this case concerned "living benefits" that ended when Walker died. And while an employer's right to appeal a ruling is not always destroyed upon the death of a claimant, where, as here, the appeal is "an out growth of the... claim that the employee had sought to keep alive," an employer's appeal has been mooted. State ex rel. Hamlin v. Indus.Comm. of Ohio, et al. (1993), 68 Ohio St. 3d 21, 22. 2

3 Mosier's reliance on Youghiogheny & Ohio Coal Co. v. Mayfield ( 1984), 11 Ohio St.3d 70, to support its motion for reconsideration in this case is misplaced. Youghioheny involved a workers' compensation claim that had been appealed to court by a State funded employer under former R.C , the predecessor to R.C That statute gives both the claimant and the employer the right to appeal to court for a de novo determination of the underlying right of the injured worker to participate under the workers' compensation laws. No such similar issue is presented in the present action in mandamus, where the employer's challenge concerns a matter of the "extent of disability" which is solely within the province of the Industrial Commission. Consistent with Ohio Adm.Code , the consideration of an injured worker's entitlement under an allowed claim abates upon the claimant's death. Moreover, Youghioheny involved the situation where the injured worker had been paid compensation, but still at issue was whether the State funded employer should have been reimbursed by the State Surplus Fund. That is also not the issue here. Finally, Mosier's counsel's suggestion that counsel for the commission intentionally failed to serve him a copy of the Motion to Dismiss Appeal for Mootness is incon ect. Counsel for the commission prepared copies of its Motion for delivery by regular U.S. mail to both counsel for Mosier and counsel for Walker. (See copy of cover letter dated November 8, 2007, attached as Exhibit 1, and Certificate of Service, attached as Exhibit 2). While regrettable, if mail issues arose somewhere in the service process, nothing was done intentionally to prejudice Mosier or Walker. Mosier's request fails to substantiate grounds to justify the Court's reconsideration or reversal of its determination. Accordingly, the motion should be denied. 3

4 Rkspectfully submitted, c rv^ n, ^i o e M-AMSSI-YT). PAVAT? ( ) Assistant Attorney G eral Workers' Compensation Section 150 E. Gay Street, 22"d Floor Columbus, Ohio Phone: (614) Fax: (614) cpayer@ag.state.oh.us Counsel for Respondent, Industrial Commission of Ohio CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing MEMORANDUM CONTRA TO APPELLEE'S MOTION TO RECONSIDER, was sent by U.S. mail to: John Tarkowsky, counsel for Mosier Industrial Services Corporation, Baran, Piper, Tarkowsky, Fitzgerald & Theis Co., L.P.A.., 3 North Main Street, Suite 500,, and to Dean Catignani, counsel for decedent, The Village Green, 4005 W/ Central Avenue, Toledo, Ohio 43624, on this ff' day of February

5 STATE OF OHIO OFFICE OF THE ATTORNEY GENERAL Workers' Comuensation Section 150 East Gay Street, 22n^ Flr. Columbus, Ohio Telephone: (614) Facsimfle: (614) Writefs Direct Dial: (614) cpayer0ag.state.oh.us November 8, 2007 John Tarkowsky BARAN, PIPER, TARKOWSKY FITZGERALD & THEIS CO., L.P.A. 3 N. Main Street, #500 RE: State ex rel. Mosier Industrial Services Corp. v. Indus. Comm., and Shawn Walker Supreme Court Case No Dear Mr. Tarkowsky: Enclosed please find a copy of the Motion to Dismiss Appeal for Mootness that has been prepared for filing in the above-captioned case. CDP/maa Encl. Cc: Dean A. Catignani ER ssistant ALtt6rJl6^'General

6 3tn the upreme Court of rjio State of Ohio ex rel. Mosier Industrial Services Corporation, CaseNo vs. Appellee, On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Industrial Commission of Ohio, Appellant. Court of Appeals Case No. 05AP-1096 MOTION OF APPELLANT THE INDUSTRIAL COMMISSION OF OHIO TO DISMISS APPEAL FOR MOOTNESS JOHN TARKOWSKY ( ) Baran, Piper, Tarkowsky, Fitzgerald, & Theis Co., L.P.A. 3 North Main Street, Suite 500 Tel: (419) Fax: (419) Counsel for Appellee, Mosier Industriat' Services Corporation N9V 0 8 2Q07 CL ERK 0F CflURT LSU FREME COURT OF OHIO MARC DANN Attorney General of Ohio CHARISSA D. PAYER ( ) Assistant Attomey General 150 East Gay Street, 22"d Floor Columbus, Ohio Tel: (614) Fax: (614) Counsel for Appellant, Industrial Commission of Ohio DEAN A. CATIGNANI ( ) 4005 West Central Avenue Toledo, Ohio Tel: (419) Fax: (419) Counsel for Shawn Walker

7 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion of the Appellant Industrial Commission of Ohio to Dismiss peal for Mootness was sent, postage prepaid, by regular U.S. Mail service on this day of November, 2007, to the following: John Tarkowsky BARAN, PIPER, TARKOWSKY, FITZGERALD & THEIS CO., L.P.A. 3 N. Main Street, #500 Counsel for Appellee, Mosier Industrial Services Corporation And Dean A. Catignani The Village Green 4005 West Central Avenue Toledo, Ohio Counsel for Decedent, Shawn Walker Assistant Attorney General 7