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State ex rel Menough v. Industrial Commission of Ohio6/25/2002
ll payment and stated that it would offset any current or future benefits against the overpayment, it was acting within the law in effect in 1990. The commission further contends that mere citation to the wrong statute does not constitute an abuse of discretion and that, even if its citations to R.C. 4123.511(J) were incorrect, they were harmless error.
The magistrate recognizes that the record includes no evidence of any collection efforts by the bureau nor approval by the commission of any specific methods of recoupment. Nonetheless, the commission had a duty to correct its erroneous reliance on inapplicable law when requested by claimant to do so, and it did not perform that duty. Further, a commission order setting forth reliance on an inapplicable statute does not comply with its duty to provide an adequate order and rationale, a duty imposed in decision such as State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203.
In sum, the magistrate recommends that the court issue a limited writ of mandamus ordering the commission to amend its orders of December 2000, August 2000, December 2000, and January 2001, and must grant claimant's appeals and request for reconsideration to the extent that its citation to and reliance on R.C. 4123.511(J) were contrary to law.
PATRICIA DAVIDSON, MAGISTRATE
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