[Cite as State ex rel. Lawson v. Indus. Comm., 2014-Ohio-2784.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Cheryl L. Lawson, :
Relator, :
:
v. No. 13AP-834
:
Industrial Commission of Ohio and (REGULAR CALENDAR)
Allen Metropolitan Housing Authority, :
Respondents. :
D E C I S I O N
Rendered on June 26, 2014
Larrimer and Larrimer, and Thomas L. Reitz, for relator.
Michael DeWine, Attorney General, and Lisa R. Miller, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
CONNOR, J.
{¶ 1} Relator, Cheryl L. Lawson, has filed this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying relator's request that the commission exercise its continuing
jurisdiction, and to order the commission to exercise its continuing jurisdiction.
{¶ 2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision,
which includes findings of fact and conclusions of law and is appended to this decision.
The magistrate concluded that, because relator did not timely appeal the May 4, 2012
order of the Bureau of Workers' Compensation ("BWC") denying relator's application to
participate in the BWC fund, relator was not entitled to the requested writ of mandamus
No. 13AP-834 2
as she had an adequate remedy in the ordinary course of the law. See State ex rel.
Boskovic Gen. Contrs. v. Indus. Comm., 10th Dist. No. 09AP-711, 2010-Ohio-2557, ¶ 6
(noting that "[a] failure to pursue an adequate administrative remedy bars mandamus
relief"). Despite that finding, the magistrate also addressed relator's argument that the
commission abused its discretion when it refused to exercise its continuing jurisdiction,
and concluded that the commission did not abuse its discretion. Accordingly, the
magistrate recommended that this court deny the requested writ.
{¶ 3} No objections to the magistrate's decision have been filed. We have
conducted an independent review of the magistrate's decision.
{¶ 4} Finding no error in the magistrate's findings of fact, we adopt the
magistrate's findings of fact as our own. Finding no error in the magistrate's conclusion
that relator was not entitled to the requested writ because she had an adequate remedy at
law through an appeal of the BWC's May 4, 2012 order, we adopt that portion of the
magistrate's conclusions of law as our own.
{¶ 5} However, as the magistrate determined that relator had an adequate
remedy at law, the magistrate's further conclusion that the commission did not abuse its
discretion in refusing to exercise its continuing jurisdiction amounts to an advisory
opinion. As this court is loath to issue an advisory opinion, we do not adopt the
magistrate's conclusions of law finding that the commission did not abuse its discretion.
See Harper v. Lefkowitz, 10th Dist. No. 09AP-1090, 2010-Ohio-6527, ¶ 35 (noting that
this court "is loathe to" issue an "advisory opinion"); N. Canton v. Hutchinson, 75 Ohio
St.3d 112, 114 (1996) (noting that "[i]t is, of course, well settled that this court will not
indulge in advisory opinions"); State ex rel. Louthan v. Akron, 9th Dist. No. 23351, 2007-
Ohio-241, ¶ 8.
{¶ 6} Because relator had an adequate remedy at law, and in accordance with the
magistrate's recommendation, we deny the requested writ of mandamus.
Writ of mandamus denied.
TYACK and BROWN, JJ., concur.
_________________
No. 13AP-834 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Cheryl L. Lawson, :
Relator, :
v. : No. 13AP-834
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Allen Metropolitan Housing Authority,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on March 27, 2014
Larrimer and Larrimer, and Thomas L. Reitz, for relator.
Michael DeWine, Attorney General, and Lisa R. Miller, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 7} Relator, Cheryl L. Lawson, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order wherein the commission denied her request to exercise
its continuing jurisdiction and ordering the commission to do so.
Findings of Fact:
{¶ 8} 1. Relator was an employee of respondent Allen Metropolitan Housing
Authority ("AMHA").
{¶ 9} 2. According to the stipulation of evidence, relator was working as a
receptionist at AMHA on March 27, 2012. AMHA was being investigated by the Ohio
No. 13AP-834 4
Ethics Commission based upon an anonymous tip that staff members of AMHA were
destroying documents.
{¶ 10} 3. On March 27, 2012, officers from the Lima Police Department arrived at
AMHA and demanded access to the building. Relator refused to unlock the door and
allow the officers access.
{¶ 11} 4. A co-worker opened the door and, after the officers entered, relator was
handcuffed and arrested for refusing to allow the officers access.
{¶ 12} 5. On April 5, 2012, relator filed a First Report of an Injury, Occupational
Disease or Death ("FROI-1") form alleging that she sustained cervical and thoracic
injuries when she was arrested. Specifically, relator alleged her injuries occurred as
follows:
Police shoved me up again[s]t the wall to handcuff me and
put arms up high. Employer told them to be careful[.] I have
problems.
{¶ 13} 6. Relator's supervisor Anna M. Schnippel certified the validity of relator's
claim.
{¶ 14} 7. On April 10, 2012, the Special Investigation Department ("SID") of the
Ohio Bureau of Workers' Compensation ("BWC") received an allegation from an
anonymous source informing them that relator had been encouraged by a director and
assistant director of her department to file a claim with the BWC regarding an injury she
allegedly sustained while being arrested at work on March 27, 2012.
{¶ 15} 8. Based upon this allegation, the matter was investigated.
{¶ 16} 9. Three individuals witnessed relator's arrest, Sergeant Charles Godfrey,
and two employees of AMHA, Bruce Hilty and Tiffany Elchert. While relator asserted that
she had been shoved up against a wall and her arms had been placed high above her head
while she was arrested, these witnesses gave a different account. According to the final
SID report dated May 29, 2012, Sergeant Godfrey described relator's arrest as follows:
On Tuesday, March 27, 2012, officers received information
suspects of an ongoing criminal investigation involving
employees of MET Housing in Lima, Allen County, Ohio may
have destroyed evidence and may be in the process of
destroying additional evidence at their office at 600 S. Main
Street, Lima, Allen County, Ohio. At approximately 1355
No. 13AP-834 5
hours, Inv. Johnson, Inv. Jack Miller, Special Agent Gary
Miller and I (Sgt. Godfrey) went to MET Housing to secure
the scene until a search warrant was obtained. We walked
into the lobby, identified ourselves and asked the
receptionist, Cheryl Lawson, to let us in. There is a secured
door between the lobby and the offices. The receptionist has
to push a button to electrically unlock the door. Ms. Lawson
didn't comply after being asked and told to do so several
times. She was told she would be arrested if she didn’t let us
in. She still didn't comply and was told she was under arrest.
A third party opened the door and we entered the office area.
There is a hallway which connects this door to the
receptionist's office. I immediately walked towards the
receptionist's office. Ms. Lawson was already in the hallway
and met me about halfway. Without being instructed, she
turned around and put her hands behind her back. I put the
handcuffs on her without incident. I placed a hand on her
upper arm and placed my other hand on her upper back and
guided her towards a wall so the other officers could walk
around us. She did not resist and walked up to the wall so
she was facing it. There was no use of force against her. She
did not complain about being injured from this arrest.
Ms. Lawson was transported to the Lima Police Department
and released on an unsecured appearance bond. She
returned to MET Housing about an hour or so after being
arrested and was let in to retrieve her belongings. She sat in
the conference room with some of the other employees and
talked with them. I was in the conference room during part
of this time. I heard her and Anna Schnippel (her boss)
talking. Ms. Lawson told Ms. Schnippel she would do it again
for her again [sic] if put in the position again. At no time did
I hear Ms. Lawson complain of being injured from being
arrested.
Hilty described relator's arrest as follows:
Hilty informed that he was the one who actually let Sergeant
Godfrey (Sgt. Godfrey) into the building. Hilty recalled that
the time was approximately 1:45 pm on March 27, 2012 * * *.
Hilty informed that when Sgt. Godfrey walked in he told
LAWSON she was under arrest and told LAWSON to put her
hands behind her back. Hilty recalled that LAWSON said
something like "you're the boss". According to Hilty,
LAWSON then put her hands behind her back and Sgt.
Lawson [sic] put the handcuffs on her. Hilty stated there was
No. 13AP-834 6
no resistance and LAWSON was facing a cloth wall when she
was arrested. Hilty informed that Schnippel was behind the
wall and the Assistant Director, Tiffany Wright (Wright), was
behind him. When asked, Hilty advised he was probably
standing about five (5) feet away from LAWSON when she
was arrested. Hilty also informed that LAWSON did not say
anything further but Schnippel and Wright both asked if
LAWSON'[s] arrest was necessary. Hilty recalled that Sgt.
Godfrey explained that he had given LAWSON several
warnings.
After LAWSON was handcuffed, Hilty related that everyone
was moved to the conference room while the police secured
the office. * * * Hilty related that when Officer TR Rader
(Officer Rader) arrived to transport LAWSON, he recalled
Sgt. Godfrey tell Officer Rader that LAWSON's handcuffs
needed to be tightened because they were loose.
Elchert gave the following account:
Elchert reported that she witnessed LAWSON's arrest first
hand and indicated that LAWSON met the arresting officer
by the cloth wall that was also part of the pod/office walls
and that the arresting officer told LAWSON she was under
arrest and indicated to her that she had been told three times
to open the door to let them into the back office. Elchert
stated that LAWSON put her hands behind her back and the
arresting officer placed the handcuffs on LAWSON. Elchert
stated at no time was LAWSON pushed or shoved into the
wall. Elchert advised that LAWSON stood by the wall for a
brief period before being led into the conference room with
the other employees. Elchert stated LAWSON was seated on
a couch and then confirmed that Lefik asked LAWSON if she
needed a chair to sit in instead of the couch and LAWSON
stated she did. Elchert stated that LAWSON was seated in
the conference room on the couch or in the chair for
approximately fifteen to twenty minutes. Elchert further
advised that another officer from the Lima Police
Department came to transport LAWSON and when he
arrived the arresting officer told the transporting officer that
he had to wait as he never tightened the handcuffs when he
placed them on LAWSON. Elchert stated that the
transporting officer then tightened the handcuffs.
{¶ 17} Officer T.R. Rader, the officer who transported relator after her arrest, made
the following statement:
No. 13AP-834 7
Officer Rader informed that he only transported LAWSON
from the site to the police station and booked LAWSON.
Officer Rader advised that LAWSON was already in custody
and handcuffed when he arrived. SA Young showed Officer
Rader a photo, which he identified as LAWSON. Officer
Rader was asked if he heard LAWSON complain about any
type of injury. Officer Rader informed that LAWSON did not
complain of any pain or injury. Officer Rader advised that
LAWSON was released within a half an hour on a signature
bond. Officer Rader confirmed that LAWSON was never
taken to the Sheriff's jail. Officer Rader informed that after
LAWSON was released, she walked approximately six (6)
blocks back to the office.
{¶ 18} 10. Relator gave the following account of her arrest:
LAWSON stated that the law enforcement officers, "busted
in the door", and threw her against the wall and arrested her
for obstructing. LAWSON confirmed that she had been
warned that she would be arrested since she had not allowed
the law enforcement officers into the back office. LAWSON
stated that they placed hand cuffs on her and indicated that
the hand cuffs were placed, "up high". SA Young asked
LAWSON to describe how high her hands and/or arms were
placed on her back and she was unable to explain. SA Young
then stood up and placed his hands behind his back in an
effort to determine how high LAWSON's hands and/or arms
were up her back when she was placed in hand cuffs. It was
determined and agreed upon by LAWSON that her hands
and/or arms were positioned between her waist line and the
middle of her back. LAWSON stated that the hand cuffs were
hurting and pulling her arms and shoulders and estimated
that they were on for approximately one (1) hour. LAWSON
stated the hand cuffs were not loose while they were on her.
LAWSON stated she was later taken to the conference room
with the other employees and indicated that she was initially
seated on a low couch. LAWSON reported that sitting on the
couch with the hand cuffs on was uncomfortable and advised
that another employee provided her with an office chair to sit
in for the remainder of her time in the conference room and
prior to being transported to the Lima Police Department.
{¶ 19} Relator's supervisor Anna Schnippel gave a similar account:
Schnippel was later asked to show SA Young and FA Stein
which wall LAWSON had been thrown into and Schnippel
No. 13AP-834 8
walked SA Young and FA Stein to the area and indicated that
LAWSON had been thrown into a portion of the wall that
was between a doorway that led from the back office into the
lobby and another doorway that led from the back office and
into their conference room. SA Young noted that there were
three pictures/plaques hanging on that portion of the wall
and asked Schnippel if any of them fell to the ground when
LAWSON was shoved into the wall. Schnippel initially
indicated they did not fall to the ground and then seemed
confused and unable to remember whether or not any of the
pictures/plaques fell to the ground. Schnippel stated that
LAWSON indicated that her neck hurt because of the way the
hand cuffs were placed on her and also because she was
sitting forward on a low couch.
{¶ 20} 11. Relator's application seeking to participate in the Ohio Workers'
Compensation fund for injuries she allegedly received on March 27, 2012 was denied by
order of the BWC mailed May 4, 2012. In denying her the right to participate, the BWC
order provides:
An application for workers' compensation benefits was filed
04/09/2012 on behalf of the injured worker requesting the
allowance of this claim for the following injury descriptions:
[P]olice shoved me up against the wall to handcuff me and
put arms up high[.] [E]mployer told them to be careful[.] I
have problems.
The claim is DISALLOWED for the following medical
condition (s):
Code Description Body Location Part of Body
847.0 Sprain of neck
847.1 Sprain thoracic region
845.0 Sprain lumbosacral
There is no medical relationship between the diagnosed
condition and the described injury/occupational disease.
BWC has conflicting evidence on file.
This decision is based on:
No. 13AP-834 9
[I]nformation obtained by the Region 3 Special Investigation
Unit (SIU) determined that there was conflicting injury
descriptions. Information obtained from the injured worker
indicates there was no new injury and that the incident
aggravated a pre-existing and degenerative medical
condition.
The order also informed relator that she had 14 days to appeal this order:
Ohio law requires that BWC allow the injured worker or
employer 14 days from the receipt of this order to file an
appeal. If the injured worker and employer agree with this
decision, the 14 day appeal period may be waived. Both
parties may submit a signed waiver of appeal to BWC. The
Request for Waiver of Appeal (C108) is available through
your local customer service office. Or you can log on to
www.ohiobwc.com, select Injured [W]orker, then click on
Forms.
If the injured worker or the employer disagrees with this
decision, either may file an appeal within 14 days of receipt
of this order. Appeals are filed with the Industrial
Commission of Ohio (IC), either via the Internet at
www.ohioic.com or at the following IC office * * *.
{¶ 21} 12. Relator did not appeal from the BWC order mailed May 4, 2012 which
denied her application seeking to participate in the workers' compensation fund.
{¶ 22} 13. Instead, on January 22, 2013, relator filed a motion asking the
commission to exercise its continuing jurisdiction:
Now comes [relator], by and through her attorney, as well as
the employer, requesting that the Industrial Commission
invoke continuing jurisdiction to vacate the BWC order dated
May 4, 2012, which disallowed this claim in its entirety.
[Relator] asserts that the order creates both significant
mistakes of fact and law that necessitate it being vacated so
that the matter can be referred back to the BWC for an
appropriate order.
{¶ 23} 14. The motion was heard before a district hearing officer ("DHO") on
March 7, 2013. Relator's request was denied. The DHO noted that there was conflicting
evidence in the record concerning the manner of relator's arrest and that the BWC had a
No. 13AP-834 10
legitimate basis upon which to disallow relator's claim. Furthermore, the DHO indicated
that relator could have appealed from that denial within 14 days, but had failed to do so.
{¶ 24} 15. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on May 29, 2013. The SHO noted that the BWC found that there was conflicting
evidence on file and "[a]s such, the Bureau of Workers' Compensation order indication of
conflicting methods of injury is not found to be a mistake of fact." Apparently, counsel
argued that there was fraud involved; however, the SHO disagreed, stating:
There is no issue of fraud involved in the denial of the claim
by the face of the Bureau of Workers' Compensation order,
so there is no mistake of law regarding fraud. The Injured
Worker's counsel also argued that the Bureau of Workers'
Compensation indicating there was no medical relationship
between the diagnosed condition and the injury results in a
legally flawed order and the tenets of Greene v. Conrad
(Aug. 21, 1997), Franklin App. No. 96ADE12-1780, applies.
This argument is not found persuasive. Pursuant to Greene,
a claimant must satisfy the following requirements for and
[sic] adjudicator to hear the merits of a subsequent claim
application, when the original application was denied by the
BWC: (1) the BWC denied the initial claim because the
claimant did not provide all of the information requested by
the BWC to establish a claim; (2) the employee did not file an
appeal of the BWC order denying the original claim; and (3)
a second claim application is filed for the same incident or
accident. Marinkovic v. Diversified Inventory Solution, Inc.,
147 Ohio App.3d 497, 2002-Ohio-453, 771 N.E.2d 291; see
also Bureau of Workers' Compensation's CST Advisory 31-3;
ICR 98-1-02. In these situations, the first Bureau order is not
deemed to be an order on the merits. In Chiple v. Acme
Arsena Co., Inc., 2006-Ohio-5029 the court found, "The
BWC's order was clearly a 'decision on the merits.' The BWC
denied Chiple's claim based on its analysis of his medical
documentation and its own rules and guidelines. Chiple fails
to show that the BWC had insufficient evidence to determine
he established a claim or that there was not sufficient
medical evidence on which the Bureau could render a
decision." In the current matter the Bureau of Workers'
Compensation based its decision on the conflicting methods
of injury and Injured Worker's statement to the Special
Investigation Unit investigators. Further, there was medical
on file and the decision was noted to be based on conflicting
information on file. Ms. Lawson fails to show that the BWC
had insufficient evidence to determine she established a
No. 13AP-834 11
claim or that there was not sufficient medical evidence on
which the Bureau could render a decision. As such, this Staff
Hearing Officer does not find any mistake of law or fact.
Further, Greene is not found to apply.
{¶ 25} In the final analysis, the SHO indicated that the parties could have
appealed, but did not. As such, the SHO found that the parties could not use a motion for
continuing jurisdiction as a substitute for an appeal:
If the Employer or Injured Worker disagreed with the
Bureau's interpretation of evidence they should have
appealed the order within the fourteen-day appeal period. As
they did not do so, they cannot instead request continuing
jurisdiction as an alternative to an appeal. " *** A motion
asking the commission to exercise its continuing jurisdiction
is not a substitute for an appeal when a party had the
opportunity to appeal." State ex rel. Boskovic Gen. Contrs. v.
Indus. Comm., 2010-Ohio-2557, (Ohio Ct. App. June 8,
2010) cause dismissed, 2011-Ohio-5604, 130 Ohio St. 3d
1413, 956 N.E.2d 306 (2011).
{¶ 26} 16. Relator's appeal was refused by order of the commission mailed
June 22, 2013.
{¶ 27} 17. Relator's further request for reconsideration was denied by order mailed
July 27, 2013.
{¶ 28} 18. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 29} Because relator had an adequate remedy at law, the magistrate finds that
the commission did not abuse its discretion when it denied relator's motion asking the
commission to exercise its continuing jurisdiction.
{¶ 30} R.C. 4123.511 provides:
(B)(1) Except as provided in division (B)(2) of this section, in
claims other than those in which the employer is a self-
insuring employer, if the administrator determines under
division (A) of this section that a claimant is or is not entitled
to an award of compensation or benefits, the administrator
shall issue an order no later than twenty-eight days after the
sending of the notice under division (A) of this section,
granting or denying the payment of the compensation or
benefits, or both as is appropriate to the claimant. * * * The
administrator shall notify the claimant and the employer of
No. 13AP-834 12
the claimant and their respective representatives in writing
of the nature of the order and the amounts of compensation
and benefit payments involved. The employer or claimant
may appeal the order pursuant to division (C) of this section
within fourteen days after the date of the receipt of the order.
The employer and claimant may waive, in writing, their
rights to an appeal under this division.
(Emphasis added.)
{¶ 31} The BWC order denying the allowance of relator's claim was mailed May 4,
2012. That order specifically informed relator that she had 14 days to appeal. Relator did
not file a timely appeal. Relator is barred from appealing the order and is precluded from
contesting the merits of her right to participate in the workers' compensation system.
R.C. 4123.511. See also State ex rel. McCullough v. Indus. Comm. of Ohio, 94 Ohio St.3d
156 (2002).
{¶ 32} In State ex rel. Boskovic Gen. Contrs. v. Indus. Comm., 10th Dist. No.
09AP-711, 2010-Ohio-2557, this court considered a mandamus case in which Boskovic
General Contractors ("Boskovic") asked the commission to exercise its continuing
jurisdiction, contending that it was not the employer of the claimant in the allowed claim.
After noting that Boskovic had received a copy of the order naming it as the employer in
the claim and noting that Boskovic did not file an appeal from that order, this court
stated:
Mandamus will not issue when there is a plain and adequate
remedy in the ordinary course of the law. R.C. 2731.05. Here,
relator seeks to challenge the June 12, 2007 order that found
relator to be claimant's employer at the time he was injured.
When this determination was made, relator had available to
it an adequate remedy at law by way of filing a timely appeal
of the June 12, 2007 order, but relator did not file such an
appeal. A failure to pursue an adequate administrative
remedy bars mandamus relief. State ex rel. Buckley v. Indus.
Comm., 100 Ohio St.3d 68, 796 N.E.2d 522, 2003-Ohio-
5072, citing State ex rel. Reeves v. Indus. Comm. (1990), 53
Ohio St.3d 212, 559 N.E.2d 1311.
Id. at ¶ 6.
{¶ 33} This is a right-to-participate case and not an extent of disability case.
Relator could have appealed the denial of her claim to the commission and, in the event
No. 13AP-834 13
she lost before the commission, relator could have appealed the decision to a common
pleas court. See R.C. 4123.512. Relator had an adequate remedy which she did not
pursue and, as such, her request for mandamus relief should be denied.
{¶ 34} Although it is unnecessary to discuss relator's argument that the
commission abused its discretion when it refused to exercise its continuing jurisdiction,
because relator has raised it, the magistrate will, nevertheless, address that issue.
{¶ 35} 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
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.
No. 13AP-834 14
{¶ 36} Relator alleged that the BWC order disallowing her claim contained
mistakes of law and fact. Relator asserts that the BWC incorrectly stated that "[t]here is
no medical relationship between the diagnosed condition and the described
injury/occupational disease." However, relator is taking one sentence completely out of
context.
{¶ 37} As noted in the findings of fact, the BWC order mailed May 4, 2012
provides:
An application for workers' compensation benefits was filed
04/09/2012 on behalf of the injured worker requesting the
allowance of this claim for the following injury descriptions:
[P]olice shoved me up against the wall to handcuff me and
put arms up high[.] [E]mployer told them to be careful[,] I
have problems.
The claim is DISALLOWED for the following medical
condition (s) :
847.0 Sprain of neck
847.1 Sprain thoracic region
845.0 Sprain lumbosacral
There is no medical relationship between the diagnosed
condition and the described injury/occupational disease.
BWC has conflicting evidence on file.
This decision is based on:
[I]nformation obtained by the Region 3 Special Investigation
Unit [SID] determined that there was conflicting injury
descriptions. Information obtained from the injured worker
indicates there was no new injury and that the incident
aggravated a pre-existing and degenerative medical
condition.
(Emphasis added.)
{¶ 38} As is clear from the order, the BWC indicated that there was conflicting
evidence on file and that review of the SID report indicated that there was conflicting
No. 13AP-834 15
descriptions as to the events which relator asserted caused her injuries. Further, the BWC
also found that there was conflicting evidence as to whether or not the incident
aggravated a pre-existing and degenerative medical condition. The commission
concluded that the evidence was insufficient to support a medical relationship between
the diagnosed condition and the description of how the alleged injuries occurred.
{¶ 39} Relator goes no further in explaining why she believes the BWC's order
contains clear mistakes of law and fact except to say that relator was threatened not to
pursue an appeal and that, on these grounds, the commission should have exercised its
continuing jurisdiction. However, aside from counsel's arguments, there is no evidence in
the record to support this argument. A review of that order demonstrates that the
commission did not abuse its discretion in finding that relator had not met one of the
prerequisites necessary before the commission could exercise its continuing jurisdiction
over her claim.
{¶ 40} Finding that relator had an adequate remedy at law which she did not
pursue and finding that relator has not otherwise demonstrated that the commission
abused its discretion when it denied her application asking it to exercise continuing
jurisdiction, it is this magistrate's decision that 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).