State ex rel Brown v. Indus. Comm.

[Cite as State ex rel Brown v. Indus. Comm., 2014-Ohio-3044.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. :
Annie L. Brown,
:
Relator,
:
v. No. 13AP-763
:
Industrial Commission of Ohio (REGULAR CALENDAR)
and DTR Industries, Inc., :

Respondents. :

D E C I S I O N

Rendered on July 10, 2014

Larrimer & Larrimer, and Thomas L. Reitz, for relator.

Michael DeWine, Attorney General, and Colleen C. Erdman,
for respondent Industrial Commission of Ohio.

Fisher & Phillips LLP, and Robert M. Robenalt, for
respondent DTR Industries, Inc.

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
CONNOR, J.
{¶ 1} Relator, Annie L. Brown, brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its orders granting continuing jurisdiction over relator's application for permanent
total disability ("PTD") compensation and denying her application for PTD compensation,
and to order the commission to either reinstate a staff hearing officer's ("SHO") order
which granted relator's application for PTD compensation or to find that relator is entitled
to an award of PTD compensation.
No. 13AP-763 2

{¶ 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, who has now rendered a decision and
recommendation that includes findings of fact and conclusions of law and is appended to
this decision. The magistrate concluded that the commission did not abuse its discretion
and recommended that this court not issue the requested writ of mandamus. Relator has
filed an objection to the magistrate's decision, and the matter is now before us for our
independent review.
{¶ 3} As reflected in the facts given in the magistrate's decision, relator was
involved in a work-related injury in 2004. Relator's industrial claim was allowed for the
following conditions: sprain lumbar region, sprain lumbrosacral, disc displacement L5-S1,
pain disorder associated with both psychological factors and a general medical condition.
{¶ 4} Relator filed an application for PTD compensation on June 29, 2011.
Relator supported her application with the report of Aaron J. LaTurner, Ph.D., a licensed
psychologist. Following a hearing before an SHO on January 31, 2012, the SHO granted
relator's application for PTD compensation. The SHO relied on a report from Nancy
Renneker, M.D., to find that relator was "unable to perform sustained remunerative
employment solely as a result of the medical impairment caused by the allowed physical
conditions." (Stip.R. 42.) The SHO also noted that Jessica Robinson, a vocational expert,
had examined relator and determined that relator was not a feasible candidate for
vocational rehabilitation, and that a "similar opinion was offered by a second vocational
rehabilitation specialist, John Kilcher." (Stip.R. 42.) The SHO also stated that the start
date for the PTD compensation should be November 3, 2010, noting that "the July 28,
2010 report of Dr. LaTurner supports payment of Permanent Total Disability benefits
prior to that date." (Stip.R. 41.)
{¶ 5} On February 20, 2012, respondent-employer filed a request for
reconsideration. The employer asserted in its request for reconsideration that claimant
was capable of performing sedentary work. On March 20, 2012, the commission denied
the employer's request for reconsideration, but also issued an interlocutory order sua
sponte ordering that the case be docketed before the commission for the commission to
determine whether the SHO's order contained a clear mistake of law. The commission
identified two potential mistakes of law in the SHO's order.
No. 13AP-763 3

{¶ 6} Following a hearing before the commission on May 8, 2012, the commission
issued an order stating that it was granting the employer's request for reconsideration, as
the employer had "met its burden of proving that the Staff Hearing Officer order, issued
02/03/2012, contains a clear mistake of law." (Stip.R. 1.) The commission found the
following two clear mistakes of law: (1) the SHO granted PTD compensation based solely
on the allowed physical conditions, but cited to vocational reports, and (2) the SHO stated
that the PTD compensation was based solely on the allowed physical conditions, but used
Dr. LaTurner's report, which addressed only the allowed psychological condition, to
support the start date for the PTD compensation. Accordingly, the commission vacated
the SHO's order. The commission then reviewed the evidence in the file and, relying upon
the reports of James B. Hoover, M.D., and James Hawkins, M.D., ordered that relator's
application for PTD compensation be denied.
{¶ 7} The magistrate determined that the commission did not abuse its discretion
when it decided to exercise its continuing jurisdiction. The magistrate also determined
that the commission's order purporting to grant the employer's previously denied request
for reconsideration was immaterial and would not support the grant of a writ of
mandamus, and that the commission did not abuse its discretion when it denied relator's
application for PTD compensation.
{¶ 8} Relator objects to the magistrate's decision, but does not put forth a concise
objection for our consideration. From the arguments presented in relator's objection,
however, we discern the following objections to the magistrate's decision: the magistrate
erred in failing to find that res judicata barred the commission from granting the
employer's previously denied request for reconsideration, the SHO's reference to the
vocational reports did "nothing to invalidate the order," and the commission failed to
properly address the improper start date issue that it used "as a guise to accept
jurisdiction." (Relator's Objections, 4.)
{¶ 9} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the
objected matters "to ascertain that the magistrate has properly determined the factual
issues and appropriately applied the law." A relator seeking a writ of mandamus must
establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon
respondent to perform the act requested, and (3) that relator has no plain and adequate
No. 13AP-763 4

remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police &
Firemen's Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting
State ex rel. Consolidated Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear
legal right exists where the [commission] abuses its discretion by entering an order which
is not supported by 'some evidence.' " Id.
{¶ 10} This court will not determine that the commission abused its discretion
when there is some evidence in the record to support the commission's finding. State ex
rel. Rouch v. Eagle Tool & Mach. Co., 26 Ohio St.3d 197, 198 (1986). The some evidence
standard "reflects the established principle that the commission is in the best position to
determine the weight and credibility of the evidence and disputed facts." State ex rel.
Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing State ex
rel. Pavis v. Gen. Motors Corp., B.O.C. Group, 65 Ohio St.3d 30, 33 (1992).
{¶ 11} Relator first contends that the magistrate failed to properly evaluate
whether res judicata barred the commission from granting the employer's previously
denied request for reconsideration. "Res judicata operates 'to preclude the relitigation of
a point of law or fact that was at issue in a former action between the same parties and
was passed upon by a court of competent jurisdiction.' " State ex rel. B.O.C. Group v.
Indus. Comm., 58 Ohio St.3d 199, 200 (1991), quoting Consumers' Counsel v. Pub. Util.
Comm., 16 Ohio St.3d 9, 10 (1985). Res judicata applies to administrative proceedings,
but "because of the commission's continuing jurisdiction under R.C. 4123.52, 'the
defense of res judicata has only a limited application to compensation cases.' " Id. at
200-01, quoting Cramer v. Indus. Comm., 144 Ohio St. 135, 138 (1944).
{¶ 12} The magistrate noted relator's argument that "collateral estoppel
prevented the commission from granting the employer's request for reconsideration
after first denying it," but determined that the commission's error in purporting to grant
the previously denied request for reconsideration was harmless, as "nothing would be
served by issuing a writ of mandamus and ordering the commission to issue a new order
properly reflecting that it was exercising its continuing jurisdiction." (Magistrate's
Decision, at ¶ 50-51.) We agree with the magistrate's resolution of this issue, and find
the commission's error harmless, as the commission properly invoked its continuing
jurisdiction over relator's PTD application when it identified two mistakes of law in the
No. 13AP-763 5

SHO's order. See State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-
5990, ¶ 14; State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998).
Moreover, we note that it is apparent from the record that the commission intended to
invoke its own continuing jurisdiction over the case, and not to grant the employer's
request for reconsideration. The employer did not assert in its request for
reconsideration that the SHO's order contained a clear mistake of law; rather, the
employer argued that, based on the record evidence, relator was not permanently and
totally disabled.
{¶ 13} Thus, despite the commission's misstatement, it is apparent that the
commission was not revisiting the employer's request for reconsideration, but rather
was sua sponte invoking its continuing jurisdiction over the application pursuant to R.C.
4123.52. As the commission specifically identified and explained the reasons why it was
exercising its continuing jurisdiction, its statement that it was granting the employer's
request for reconsideration was a misstatement which amounted to harmless error and
would not support mandamus relief. See State ex rel. Little v. Indus. Comm., 10th Dist.
No. 11AP-1110, 2013-Ohio-282, ¶ 6 (where the SHO's order first stated that relator was
57 years old, but later misstated that relator was 51 years old, this court determined that
the SHO's misstatement was a typographical error and that "such an inadvertent and
harmless misstatement is not grounds for mandamus relief").
{¶ 14} Relator's remaining objections assert that the commission erred in finding
two clear mistakes of law in the SHO's order. Relator contends that the SHO's reference
to the vocational reports did not invalidate the order. We agree with the magistrate's
conclusion that the reference to the vocational reports was a clear mistake of law, as
Ohio Adm.Code 4121-3-34(D)(2)(a) provides that if a SHO finds that "medical
impairment resulting from the allowed condition(s) in the claim(s) prohibits * * * the
injured worker from performing any sustained remunerative employment, the injured
worker shall be found to be permanently and totally disabled, without reference to the
vocational factors listed in paragraph (B)(3) of this rule."
{¶ 15} Relator also asserts that "if the improper start date was a Mistake of Fact
or Law for accepting jurisdiction that the commission should actually address the issue
that was used as a guise to accept jurisdiction." (Relator's Objections, 4.) Some evidence
No. 13AP-763 6

upon which the commission relied to award PTD must also support the PTD start date.
State ex rel. Marlow v. Indus. Comm., 10th Dist. No. 05AP-970, 2007-Ohio-1464, ¶ 12.
The SHO did not rely on Dr. LaTurner's report when it awarded PTD compensation, and
the SHO found relator's PTD was based on the allowed physical conditions. Accordingly,
it was a clear mistake of law to use Dr. LaTurner's report to support the PTD start date.
The commission addressed the start date issue in its order following the May 8, 2012
hearing, noting that the SHO had granted relator's application "based solely upon
physical conditions," but "the start date chosen for the commencement of those benefits
was based upon the report of Aaron LaTurner, Ph.D., who examined solely on the
allowed psychological condition." (Stip.R. 1.)
{¶ 16} Following independent review, pursuant to Civ.R. 53, we find the magistrate
has properly determined the pertinent facts and applied the salient law to them.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein. Therefore, relator's objections to the decision of
the magistrate are overruled. In accordance with the magistrate's decision, we deny the
request for a writ of mandamus.
Objections overruled;
writ denied.

DORRIAN and LUPER SCHUSTER, JJ., concur.
_________________
No. 13AP-763 7

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Annie L. Brown, :

Relator, :

v. : No. 13AP-763

Industrial Commission of Ohio : (REGULAR CALENDAR)
and DTR Industries, Inc.,
:
Respondents.
:

MAGISTRATE'S DECISION

Rendered on March 27, 2014

Larrimer & Larrimer, and Thomas L. Reitz, for relator.

Michael DeWine, Attorney General, and Colleen C. Erdman,
for respondent Industrial Commission of Ohio.

Fisher & Phillips LLP, and Robert M. Robenalt, for
respondent DTR Industries, Inc.

IN MANDAMUS

{¶ 17} Relator, Annie L. Brown, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its orders granting continuing jurisdiction over her permanent
total disability ("PTD") application and thereafter denying her application for PTD
compensation, and ordering the commission to either vacate its order exercising its
continuing jurisdiction and reinstate the original order which granted relator's application
No. 13AP-763 8

for PTD compensation or, in adjudicating the application, find that relator is entitled to an
award of PTD compensation.
Findings of Fact:
{¶ 18} 1. Relator sustained a work-related injury on June 23, 2004 and her
workers' compensation claim has been allowed for the following conditions:
Sprain lumbar region; sprain lumbosacral; disc displacement
L5-S1; pain disorder associated with both psychological
factors and a general medical condition.

{¶ 19} 2. Relator filed her application for PTD compensation on June 29, 2011.
{¶ 20} 3. At the time she filed her application, relator was 47 years of age,
indicated that she left school after the tenth grade because she was pregnant but had
received her GED, had not gone to any trade or vocational school, and could read, write,
and perform basic math. Relator also indicated that she was currently receiving Social
Security Disability benefits.
{¶ 21} 4. In support of her application, relator submitted the July 28, 2010 report
of Aaron J. LaTurner, Ph.D., a licensed psychologist who opined that relator could not
return to sustained remunerative employment, stating:
Based on a reasonable degree of psychological certainty, it is
my opinion that Ms. Brown would not be able to engage in
sustained remunerative employment and is totally and
permanently disabled as a result of her allowed condition of
Pain Disorder associated with both psychological factors and
a general medical condition (307.89). I agree with Dr.
Ferrell's recommendation to continue mental health
treatment. However, in my opinion, treatment should
continue every 2-3 weeks to guard against any psychological
decompensation for the next 6 months and then consider
monthly sessions.

{¶ 22} 5. Nancy Renneker, M.D., provided an independent medical evaluation. In
her June 3, 2011 report, Dr. Renneker discussed the medical records which she reviewed,
noted relator's present complaints, provided her physical findings upon examination, and
concluded that relator was permanently and totally disabled, stating:
Based on medical records reviewed, my exam of this date
and in my medical opinion, I am in agreement with the 4-19-
07 opinion of orthopedic surgeon, Dr. Frederick Shiple, III,
No. 13AP-763 9

MD., that Annie L. Brown has the following permanent job
restrictions related to her work injury of 6-23-04: (1) unable
to return to her former position of employment as a
production associate for DTR Industries, Inc. (2) permanent
restrictions of no bending, stooping, lifting, twisting or
climbing and no lifting of objects weighing over 5 lbs. In
addition to the above restrictions, I am also in agreement
with Dr. Shiple's restriction that Annie Brown must be able
to change her position frequently as needed from sitting to
standing posture.

In summary, Annie L. Brown is unable to perform even at a
sedentary work load and it is my medical opinion that Annie
Brown is permanently and totally disabled from performing
sustained remunerative employment due to residual physical
impairments related to her work injury of 6-23-04 (Claim
no. 04-368316).

{¶ 23} 6. An independent medical examination was performed by James B.
Hoover, M.D. In his September 21, 2011 report, Dr. Hoover identified the allowed
conditions in relator's claim, provided a general history of her conditions, provided his
physical findings upon examination, opined that relator's allowed physical conditions had
reached maximum medical improvement ("MMI"), assessed a 13 percent whole person
impairment, and opined that relator could perform sedentary work as follows:
She is limited to generally a sedentary level of physical
activity, lifting up to 10 lbs. with occasional bending and
stooping. She primarily would need a sitting job, with
occasional standing. She would need to be able to change
positions as needed.

{¶ 24} 7. James R. Hawkins, M.D., provided an independent psychiatric
evaluation. In his October 13, 2011 report, Dr. Hawkins identified the medical records
which he reviewed, noted the history of relator's psychological conditions, determined
that she had a mild psychiatric impairment in her activities of daily living, socially, and
with regard to adaptation to stressful situations, and a moderate psychiatric impairment
with regard to concentration, pace, and persistence. He also opined that relator's allowed
psychological conditions had reached MMI, assessed a 25 percent permanent
impairment, and concluded that relator could perform some sustained remunerative
No. 13AP-763 10

employment provided that she be given break rests, minimal public contact, and entry-
level work.
{¶ 25} 8. The stipulation of evidence contains a vocational assessment from

Jessica Robinson, M.Ed., CRC. In her June 17, 2011 report, Ms. Robinson noted that

there were a number of claim and non-claim related physical and psychological

conditions that would impact relator's ability to be successful in vocational rehabilitation

including, chronic back pain, numbness in her right foot and toes, high blood pressure,

arthritis, and depression. Ms. Robinson opined that relator's physical limitations

prevented her from returning to a position with the skills and ability she had and that her

psychological conditions would limit her from performing the essential functions of a

more sedentary position. Further, Ms. Robinson noted that, the fact that relator was

receiving Social Security Disability benefits, she had no transferrable skills, and with her

physical and psychological impairments, relator would not be able to maintain sustained

remunerative employment.

{¶ 26} 9. John P. Kilcher, CCR, CCM, CDMS, NCC, also submitted a vocational

assessment. In his December 2, 2011 report, Mr. Kilcher opined that relator had few, if

any, transferrable skills and that they were negated by her physical restrictions.

Ultimately, he concluded that relator would not be able to return to sustained

remunerative employment and that she was not an appropriate candidate for a

rehabilitation program with a return-to-work goal.

{¶ 27} 10. Relator's application was heard before a Staff Hearing Officer ("SHO")

on January 31, 2012 (mailed February 3, 2012). The SHO determined that, based upon

the June 3, 2011 report of Dr. Renneker, which was supported by the April 19, 2007 report

of Dr. Shiple, relator was incapable of returning to sustained remunerative employment
No. 13AP-763 11

due exclusively to the allowed physical conditions in her claim. As such, the SHO noted

that it was unnecessary to discuss or analyze relator's non-medical disability factors. The

SHO determined the start date for relator's PTD award as follows:

Permanent and total disability compensation is awarded
from November 3, 2010 for the reason this was the last date
Ms. Brown received Temporary Total Disability and the
July 28, 2010 report of Dr. LaTurner supports payment of
Permanent Total Disability benefits prior to that date.

{¶ 28} Thereafter, despite finding that the allowed physical conditions rendered
relator permanently and totally disabled, the SHO discussed the non-medical disability
factors, stating:
On June 17, 2011, Ms. Brown was evaluated by a vocational
expert, Jessica Robinson, M.Ed., CRC. Ms. Robinson opined
that Ms. Brown is not a feasible vocational rehabilitation
candidate such that she could participate in any return to
work activities. A similar opinion was offered by a second
vocational rehabilitation specialist, John Kilcher, M.A., CRC,
CDMS, CCM, NCC. Mr. Kilcher opined that Ms. Brown was
not a candidate for vocational retraining such that she could
perform any job duties and become involved in gainful
remunerative employment.

This Staff Hearing Officer finds the report of Dr. Renneker to
be persuasive that residual restrictions related to allowed
physical conditions within this claim limit Ms. Brown to less
than sedentary work. This opinion is buttressed by the
Bureau examination and report of Dr. Shiple from April of
2007.

This Staff Hearing Officer finds the October 18, 2011 [sic]
report of James Hawkins, M.D. and September 21, 2011
report of James Hoover, M.D. to be persuasive that Ms.
Brown is at maximum medical improvement for all allowed
physical and psychological conditions.

This Staff Hearing Officer also finds the report of Dr.
Hawkins to be persuasive that the allowed psychological
condition within this claim does offer residual restrictions
requiring Ms. Brown to have frequent rest breaks, minimal
public contact and limits her to entry-level work.
No. 13AP-763 12

Based upon the report of Dr. Renneker of June 03, 2011, it is
found that the Injured Worker is unable to perform
sustained remunerative employment solely as a result of the
medical impairment caused by the allowed physical
conditions. Therefore, pursuant to State ex rel. Speelman v.
Indus. Comm., (1992), 73 Ohio App.3d 757, it is unnecessary
to discuss or analyze Ms. Brown's non-medical disability
factors.

{¶ 29} 11. On February 20, 2012, respondent DTR Industries, Inc. ("employer")
filed a request for reconsideration which was denied by order of the commission mailed
March 20, 2012.
{¶ 30} 12. Thereafter, in an interlocutory order also mailed March 20, 2012, the
commission sua sponte referred the matter for a hearing, stating:
[One] Continuing Jurisdiction Pursuant to R.C. 4123.52, and

[Two] Permanent Total Disability

It is the finding of the Commission that the evidence on file
is of sufficient probative value to warrant adjudication of a
probable clear mistake of fact, and a probable clear mistake
of law of such character that remedial action would clearly
follow, in the Staff Hearing Officer order, issued
02/03/2012.

Specifically, it is arguable that in the Staff Hearing Officer
order, issued on 02/03/2012, the Staff Hearing Officer made
a clear mistake of fact and law by citing to vocational reports,
yet, granting permanent total disability based solely upon the
medical conditions, and by indicating he was not addressing
or considering the non-medical disability factors. In
addition, it is arguable that the Staff Hearing Officer made a
clear mistake of law by granting permanent total disability
based solely upon the physical conditions, but then
establishing the start date for the payment of permanent
total disability compensation based on the report of Aaron
LaTurner, Ph.D., who examined solely on the allowed
psychological conditions.

Based on these findings, the Commission directs that the
claim be set for hearing to determine whether the probable
mistake of fact and probable mistake of law, as noted herein,
No. 13AP-763 13

are sufficient for the Commission to invoke its continuing
jurisdiction.

In the interest of administrative economy and for the
convenience of the parties, after the hearing on the question
of continuing jurisdiction, the Commission will take the
matter under advisement and proceed to hear the merits of
the underlying issues. The Commission will thereafter issue
an order on the matter of continuing jurisdiction pursuant to
R.C. 4123.52. If authority to invoke continuing jurisdiction is
found, the Commission will address the merits of the
underlying issues.

This order is issued pursuant to State ex rel. Nicholls v.
Indus. Comm., 81 Ohio St.3d 454, 692 N.E.2d 188 (1998);
State ex rel. Foster v. Indus. Comm., 85 Ohio St.3d 320, 707
N.E.2d 1122 (1999), [and] State ex rel. Gobich v. Indus.
Comm., 103 Ohio St.3d 585, 817 N.E.2d 398 (2004).

{¶ 31} 13. Thereafter, a hearing was held before the commission on May 8, 2012.
Relator and counsel were present at the hearing. The commission first determined that it
did have continuing jurisdiction, stating:
05/08/2012 - After further review and discussion, it is the
finding of the Industrial Commission that the Employer has
met its burden of proving that the Staff Hearing Officer
order, issued 02/03/2012, contains a clear mistake of law of
such character that remedial action would clearly follow.

Specifically, in the order issued 02/03/2012, the Staff
Hearing Officer cited to vocational reports yet granted
permanent and total disability compensation based solely
upon the medical conditions and specifically indicated he
was not addressing or considering the non-medical disability
factors. The Staff Hearing Officer also indicated that
permanent and total disability compensation was based
solely upon physical conditions; however, , . [sic.] However,
the start date chosen for the commencement of those
benefits was based upon the report of Aaron LaTurner,
Ph.D., who examined solely on the allowed psychological
condition.

Therefore, the Commission exercises continuing jurisdiction
pursuant to R.C. 4123.52 and State ex rel. Nicholls v. Indus.
Comm., 81 Ohio St.3d 454, 692 N.E.2d 188 (1998), State ex
No. 13AP-763 14

rel. Foster v. Indus. Comm., 85 Ohio St.3d 320, 707 N.E.2d
1122 (1999), and State ex rel. Gobich v. Indus. Comm., 103
Ohio St.3d 585, 2004-Ohio-5990, 817 N.E.2d 398 in order to
correct this error.

The Employer's request for reconsideration, filed
02/20/2012, is granted. It is further ordered that the Staff
Hearing Officer order, issued 02/03/2012, is vacated.

{¶ 32} Thereafter, the commission relied on the medical reports of Drs. Hoover
and Hawkins to find that relator was capable of performing some sedentary employment
within the restrictions outlined by Dr. Hawkins. Thereafter, the commission analyzed the
non-medical disability factors, stating:
From a vocational perspective, the Commission finds the
Injured Worker's present level of education to be a distinct
asset to reemployment. The Injured Worker failed to finish
high school for non-academic reasons. However, file
evidence indicates she had average grades and she was
subsequently able to obtain her GED. She also indicates on
her IC-2 application that she can read, write and do basic
math. The Commission finds this level of education to be
more than adequate for entry level positions the Injured
Worker is otherwise physically and psychologically capable
of performing.

The Injured Worker's age is also viewed as an asset to
reemployment. When considering the traditional retirement
age of 65, the Injured Worker has 17 years of remaining work
life. Also, at her present age, the Injured Worker still has the
opportunity to either directly reenter the workforce or seek
employment enhancing assistance (e.g., retraining,
rehabilitation or remediation) if she is so inclined.

The Injured Worker's work history is also found to be an
asset to reemployment. The Injured Worker's IC-2
application indicates she used a computer in at least one of
her previous positions and she was also required to keep
records. The Commission finds such skills and abilities are
readily transferrable to new positions of employment.
Furthermore, many of the skills involved with the Injured
Worker's duties as an inspector (inspecting and testing, lab
work) would also be transferrable.
No. 13AP-763 15

Additionally, the Injured Worker ostensibly learned the
duties of her previous jobs through on-the-job training. This
demonstrated * * * the ability to acquire new job skills.

When considering the analysis noted above, the Commission
finds the Injured Worker's overall vocational factors to be
positive and together with her retained physical and
psychiatric abilities, the Commission concludes the Injured
Worker is not permanently and totally disabled. Therefore,
the IC-2 application filed 06/29/2011 is denied.

{¶ 33} 14. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 34} Relator argues that the commission abused its discretion both in exercising
continuing jurisdiction and in thereafter denying her application for PTD compensation.
Relator contends it was an abuse of discretion for the commission to accept continuing
jurisdiction noting an improper start date for benefits and the SHO's reference to
vocational reports, and then reverse the SHO order based on other reasons. Relator also
notes that the commission's order indicates that it denied the employer's request for
reconsideration on March 12, 2012, and then later granted the employer's request for
reconsideration on May 8, 2012. Relator asserts that this violates collateral estoppel.
Further, relator contends that the commission abused its discretion by concluding that
she had acquired vocational skills, which would enable her to perform some sustained
remunerative employment at a sedentary level.
{¶ 35} For the reasons that follow, the magistrate finds that the commission did
not abuse its discretion when it exercised its continuing jurisdiction, the fact that the
commission's order notes that it is granting the employer's motion for reconsideration is
immaterial and does not constitute grounds to grant a writ of mandamus and the
commission did not abuse its discretion when it denied relator's application for PTD
compensation.
{¶ 36} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
No. 13AP-763 16

requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 37} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which 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).
{¶ 38} Relator first argues that the commission abused its discretion when it
exercised its continuing jurisdiction.
{¶ 39} Pursuant to R.C. 4123.52, "The jurisdiction of the industrial commission
and the authority of the administrator of workers' compensation over each case is
continuing, and the commission may make such modification or change with respect to
former findings or orders with respect thereto, as, in its opinion is justified." In State ex
rel. B & C Machine Co. v. Indus. Comm., 65 Ohio St.3d 538, 541-42 (1992), the court
examined the judicially-carved circumstances under which continuing jurisdiction may be
exercised, and stated as follows:
R.C. 4123.52 contains a broad grant of authority. However,
we are aware that the commission's continuing jurisdiction is
not unlimited. See, e.g., State ex rel. Gatlin v. Yellow Freight
System, Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480
N.E.2d 487 (commission has inherent power to reconsider
its order for a reasonable period of time absent statutory or
administrative restrictions); State ex rel. Cuyahoga Hts. Bd.
of Edn. v. Johnston (1979), 58 Ohio St.2d 132, 12 O.O.3d
128, 388 N.E.2d 1383 (just cause for modification of a prior
order includes new and changed conditions); State ex rel.
Weimer v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16
No. 13AP-763 17

O.O.3d 174, 404 N.E.2d 149 (continuing jurisdiction exists
when prior order is clearly a mistake of fact); State ex rel.
Kilgore v. Indus. Comm. (1930), 123 Ohio St. 164, 9 Ohio
Law Abs. 62, 174 N.E. 345 (commission has continuing
jurisdiction in cases involving fraud); State ex rel. Manns v.
Indus. Comm. (1988), 39 Ohio St.3d 188, 529 N.E.2d 1379
(an error by an inferior tribunal is a sufficient reason to
invoke continuing jurisdiction); and State ex rel. Saunders v.
Metal Container Corp. (1990), 52 Ohio St.3d 85, 86, 556
N.E.2d 168, 170 (mistake must be "sufficient to invoke the
continuing jurisdiction provisions of R.C. 4123.52"). Today,
we expand the list set forth above and hold that the
Industrial Commission has the authority pursuant to R.C.
4123.52 to modify a prior order that is clearly a mistake of
law.

{¶ 40} In its order, the commission must identify and explain the pre-condition
to the exercise of its continuing jurisdiction. State ex rel. Gobich v. Indus. Comm., 103
Ohio St.3d 585, 2004-Ohio-5990. The commission must both identify the pre-condition
and provide an explanation if the commission exercises its continuing jurisdiction. Id.
at ¶ 18.
{¶ 41} In the present case, the commission did identify the mistakes of fact and
law. Specifically, the commission noted that the SHO order granting relator PTD
compensation was based solely upon the allowed physical conditions in her claim;
however, the commission noted that the SHO went ahead and discussed the non-
medical disability factors. Further, the commission identified a clear mistake of law
noting that the SHO had granted relator PTD compensation based solely upon the
allowed physical conditions in her claim and yet used an earlier report from Dr.
LaTurner who indicated that relator's allowed psychological conditions rendered her
permanently and totally disabled.
{¶ 42} Relator acknowledges that the commission did identify the prerequisites
and did provide an explanation. However, relator contends that these two reasons were
not legitimate. First, relator contends that the SHO's reference to vocational evidence
was harmless error which fails to rise to a clear mistake of law or fact. Further, relator
contends that, because the commission identified, as a prerequisite, the fact that the
SHO used the earlier report of Dr. LaTurner, which was based on relator's allowed
No. 13AP-763 18

psychological conditions, the commission was thereafter required to discuss the start
date for PTD compensation in its later order.
{¶ 43} For the reasons that follow, the magistrate finds that relator's arguments
are not well-taken.
{¶ 44} First, concerning the SHO's discussion of relator's non-medical vocational
factors, the magistrate points out that Ohio Adm.Code 4121-3-34(D)(2)(a) specifically
provides:
If, after hearing, the adjudicator finds that the medical
impairment resulting from the allowed condition(s) in the
claim(s) prohibits the injured worker's return to the former
position of employment as well as prohibits the injured
worker from performing any sustained remunerative
employment, the injured worker shall be found to be
permanently and totally disabled, without reference to the
vocational factors listed in paragraph (B)(3) of this rule.

{¶ 45} The Ohio Administrative Code specifically provides that, because the SHO
found that the medical impairment resulting from relator's allowed conditions
prohibited her from returning to her former position of employment as well as other
sustained remunerative employment, the SHO was not to reference the vocational
factors. Here, the SHO did. This constituted a clear mistake of law and was a proper
basis upon which the commission could rely in exercising its continuing jurisdiction.
This, in and of itself, constituted a valid basis upon which the commission exercised its
continuing jurisdiction.
{¶ 46} Relator also asserts that, because the commission cited as a prerequisite
the fact that the SHO used a psychological report written approximately one year before
the reports upon which the SHO relied to find that relator was permanently and totally
disabled, the commission was thereafter required to address that issue in its order.
Relator does not cite any case law for this assertion and the magistrate specifically notes
that none exists. However, the start date for compensation must be supported by
medical evidence. Because the SHO had granted relator PTD compensation based solely
on the allowed physical conditions, the SHO was required to use the date of a report
upon which the commission relied. See, for example, State ex rel. Songer v. Access
Nursing Care, Inc., 10th Dist. No. 11AP-599, 2012-Ohio-4370. Because the commission
No. 13AP-763 19

ultimately denied her request for PTD compensation, there was no reason for the
commission to discuss the start date any further.
{¶ 47} As R.C. 4123.52 provides, the commission is authorized to exercise its
continuing jurisdiction and to make such modification or change with respect to former
findings or orders as in its opinion is justified. Furthermore, when the commission
exercises its continuing jurisdiction and vacates a prior order, as the commission did
here, the adjudication of the matter is de novo and the commission has jurisdiction to
consider and address any issue related to relator's PTD application. In State ex rel.
Hayes v. Indus. Comm., 10th Dist. No. 01AP-1087, 2002-Ohio-3675, the claimant
argued that the commission exceeded its authority to adjudicate a new application for
PTD compensation after the commission vacated the prior SHO order which had
awarded his PTD compensation. In adopting the decision of its magistrate, this court
stated:
[O]nce the commission's continuing jurisdiction is invoked
in an order articulated with specific reasons therefore, the
commission is vested with the authority to address any
issues pertaining to the order in question. That would
include the authority of the commission to vacate the
underlying order as occurred in State ex rel. Riter v. Indus.
Comm., (2001), 91 Ohio St.3d 89, 742 N.E.2d 615.

Id.

{¶ 48} Here, the commission vacated the prior SHO order and addressed the
merits of relator's application for PTD compensation. This action was consistent with
the law and did not constitute an abuse of discretion.
{¶ 49} Relator next argues that the commission first denied the employer's
request for reconsideration and then, in its order exercising its continuing jurisdiction,
the commission explicitly granted the employer's request for reconsideration.
{¶ 50} Relator is correct when she asserts that, in the interlocutory order mailed
March 20, 2012, the commission initially denied relator's request for reconsideration
and then determined, sua sponte, that it should consider exercising continuing
jurisdiction over the matter due to the aforementioned two mistakes of fact and law.
Then, following the hearing on May 8, 2012, the commission noted that it was granting
No. 13AP-763 20

the employer's request for reconsideration. Relator contends that collateral estoppel
prevented the commission from granting the employer's request for reconsideration
after first denying it.
{¶ 51} In response to relator's argument, the attorney general asserts that it is
obvious that the commission was exercising its continuing jurisdiction over relator's
PTD application and that, to the extent that the commission indicated that it was
granting the employer's reconsideration when the commission should have stated that it
was sua sponte exercising its continuing jurisdiction for reasons other than those raised
by the employer, the magistrate finds that any such error is harmless. Inasmuch as the
commission specifically identified and explained the reasons why it was exercising its
continuing jurisdiction, the magistrate finds that nothing would be served by issuing a
writ of mandamus and ordering the commission to issue a new order properly reflecting
that it was exercising its continuing jurisdiction.
{¶ 52} Relator's final argument is that the commission abused its discretion by
finding that she had acquired vocational skills. Specifically, relator asserts that her use
of a computer 15 years before her application was filed and noting whether or not a
bottle was secured does not constitute some evidence of a vocational skill.
{¶ 53} The magistrate notes that the actual statements made by the commission
concerning vocational skills are:
She has a relevant work history comprised of skilled, semi-
skilled and unskilled positions in a factory setting, which
includes, assembler, process inspector, and production
worker.

***

Additionally, the Injured Worker ostensibly learned the
duties of her previous jobs through on-the-job training. This
demonstrated * * * the ability to acquire new job skills.

{¶ 54} It is undisputed that the commission is the vocational expert and does not
need vocational reports in order to make its assessments. Relator does not contest the
commission's finding that her age was a positive vocational factor nor does she contest
the finding that her education was a positive factor. The only criticism relator makes is
that the commission found that her prior work provided her with some skills which
would be transferrable to sedentary employment.
{¶ 55} On her application, relator indicated that she had used a computer,
worked in a lab, and had kept records. This evidence is in the record and it cannot be
said to be an abuse of discretion for the commission to rely on that evidence to find that
relator would have some skills which are transferrable to sedentary employment. The
magistrate also notes that the commission noted that relator had learned the duties of
her previous job through on-the-job training and that this demonstrated the ability to
acquire new job skills. The magistrate cannot say that the commission abused its
discretion in finding that the vocational factors were positive and would enable relator
to secure other sustained remunerative employment.
{¶ 56} Based on the forgoing, it is this magistrate's decision that relator has not
demonstrated the commission abused its discretion when it exercised continuing
jurisdiction and, thereafter, denied her application for PTD compensation, and this
court should deny relator's request for a writ of mandamus.

/S/ MAGISTRATE
STEPHANIE BISCA BROOKS

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).