State ex rel. Croston v. Alliance Castings Co.

[Cite as State ex rel. Croston v. Alliance Castings Co., 2017-Ohio-6900.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Timothy Croston, :

Relator, :

v. : No. 15AP-937

Alliance Castings Company : (REGULAR CALENDAR)
and Ohio Industrial Commission,
:
Respondents.
:

DECISION

Rendered on July 20, 2017

On brief: Schiavoni, Schiavoni, Bush & Muldowney, and
Shawn R. Muldowney, for relator.

On brief: Michael DeWine, Attorney General, and Kevin J.
Reis, for respondent Industrial Commission of Ohio.

IN MANDAMUS
ON OBJECTIONS TO MAGISTRATE'S DECISION

BRUNNER, J.
{¶ 1} Relator, Timothy Croston, filed this original action requesting that this Court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the
commission"), to vacate its order refusing to exercise its continuing jurisdiction, to exercise
its continuing jurisdiction, and to determine that he is entitled to 50 additional weeks of
permanent partial disability ("PPD") compensation.
{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate, who issued the appended decision,
including findings of fact and conclusions of law in support of the conclusion that this Court
should deny Croston's request for a writ of mandamus.
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No. 15AP-937
{¶ 3} Croston has filed objections to the magistrate's findings.
{¶ 4} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of the objections, we overrule
Croston's objections and adopt the magistrate's findings of fact and conclusions of law as
our own, with the exception of the language noted below. Because we find that the
commission did not abuse its discretion, we deny Croston's request for a writ of mandamus.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 5} Croston sustained a work-related injury that resulted in his right leg being
amputated below the knee. By order mailed November 14, 2013, the Ohio Bureau of
Workers' Compensation ("BWC") awarded 150 weeks of PPD compensation to Croston,
based on the surgical report which indicated that Croston's right leg was amputated below
the knee, although the order also contained language that Croston had sustained a 100
percent amputation of his right leg. The BWC order set forth Croston's appeal rights, as
follows:

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. * * *

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 office: [address omitted].

***

THIS DECISION BECOMES FINAL IF A WRITTEN APPEAL
IS NOT RECEIVED WITH 14 DAYS OF RECEIVING THIS
NOTICE.

(Emphasis sic.) (Dec. 3, 2015 Stipulation of Evidence at 23.) Neither Croston nor his
employer, respondent Alliance Castings Company, LLC, appealed the order.
{¶ 6} Approximately 13 months later, Croston filed a motion requesting that he be
awarded an additional 50 weeks PPD compensation, based on language in the BWC order
indicating he had sustained a 100 percent amputation of his right leg. BWC referred
Croston's motion to the commission, recommending that his request be denied because,
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No. 15AP-937
"based on the point of amputation," it constituted the "loss of a foot," for which the
scheduled loss of use award is 150 weeks, pursuant to R.C. 4123.57(B). (Stipulation of
Evidence at 20.)
{¶ 7} Croston's motion was rejected at district and staff-level hearings. The District
Hearing Officer ("DHO") found that no appeal had been filed to the BWC order, making
that order a final order. The DHO further found that no basis had been established for the
commission to exercise continuing jurisdiction in this matter, and thus there was "no
jurisdiction to address the 50 weeks of compensation." Id. at 18.
{¶ 8} The Staff Hearing Officer ("SHO") also denied Croston's request for the
commission to invoke continuing jurisdiction. The SHO found that the BWC order relied
on the surgical report which referenced a below-the-knee amputation, and "[t]hus, the
medical evidence cited by [BWC] is consistent with the award for 150 weeks." Id. at 15-16.
The SHO noted that relief pursuant to R.C. 4123.52 is an extraordinary relief. In this
matter, Croston disagreed with the BWC order. The remedy for disagreement is an appeal,
but no appeal was filed as to the BWC order.
{¶ 9} Croston's appeal was refused by order of the commission mailed May 7, 2015.
{¶ 10} Croston then filed a request for reconsideration asserting that the BWC order
found that he had sustained a "100% amputation of the right leg" and, as such, he should
have been awarded 200 weeks of PPD compensation. (Stipulation of Evidence at 10.) He
argued that the award of 150 weeks constituted a clerical error, as the award should have
been for 200 weeks. His request for reconsideration was denied by order mailed June 13,
2015.
{¶ 11} Croston filed this mandamus action on October 13, 2015.
{¶ 12} The magistrate found that Croston had not demonstrated that the
commission abused its discretion when it determined that he had not met his burden of
proving that he had sustained a 100 percent loss of his right leg by amputation, that he was
only entitled to 150 weeks of PPD compensation, and in further denying his request to
exercise continuing jurisdiction. Consequently, the magistrate recommends that this Court
deny Croston's request for a writ of mandamus.
II. OBJECTIONS TO MAGISTRATE'S DECISION
{¶ 13} Croston presents for our review two objections to the magistrate's decision:
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No. 15AP-937
[1.] Relator objects to the Magistrate's finding that the Bureau
of Workers' Compensation order of November 14, 2013, did not
contain a clear error, therefore, invoking the Industrial
Commission's continuing jurisdiction pursuant to Ohio
Revised Code 4123.52.

[2.] Relator objects to the Magistrate's finding that the Relator
did not sustain a 100% amputation of the right leg.

III. LAW AND DISCUSSION
{¶ 14} It appears that Croston seeks a writ of mandamus to accomplish what a
timely appeal of the BWC order could have provided him. Unfortunately, mandamus
cannot be had because Croston cannot establish its necessary elements as a matter of law.
{¶ 15} To be entitled to relief in mandamus, Croston must establish that he has a
clear legal right to relief, 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), paragraph nine of
the syllabus. To do so, Croston must demonstrate that the commission abused its
discretion and, "in this context, abuse of discretion has been repeatedly defined as a
showing that the commission's decision was rendered without some evidence to support
it." State ex rel. Burley v. Coil Packaging, Inc., 31 Ohio St.3d 18, 20 (1987). 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). To be successful in this mandamus action, Croston
must show that the commission's decision is not supported by some evidence in the record.
State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). Further, questions of
credibility and the weight to be given evidence are clearly within the discretion of the
commission as the fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165
(1981).
{¶ 16} The magistrate's decision includes a comprehensive discussion of the
statutory and case law regarding the commission's exercise of continuing jurisdiction. The
magistrate examined the facts of the instant case through the lens of the Supreme Court of
Ohio's holding in State ex rel. B & C Machine Co. v. Indus. Comm., 65 Ohio St.3d 538, 541-
42 (1992) that, although R.C. 4123.52 contains a broad grant of authority, the commission's
continuing jurisdiction is not unlimited.
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No. 15AP-937
{¶ 17} The magistrate noted that Croston failed to appeal the BWC order that
awarded him 150 weeks of PPD compensation, and further, that "[r]es judicata bars any
change to a final order unless the moving party can satisfy the requirements under R.C.
4123.52 for the exercise of continuing jurisdiction. See State ex rel. Nicholls v. Indus.
Comm., 81 Ohio St.3d 454 (1998)." (App'x at ¶ 39.)
{¶ 18} The magistrate was unpersuaded by Croston's assertion that he had
presented sufficient evidence that the BWC order contained a clerical error, and that he has
a clear legal right to have the commission exercise continuing jurisdiction and award him
the additional 50 weeks of compensation to which he believes he is entitled, stating:

The magistrate disagrees with relator's argument. First, the
stipulation of evidence is clear: relator's right leg was
amputated below his knee. The surgical report indicates that
his fibula was cut just proximal to the level which was
approximately 12 centimeters from the joint line. (It is unclear
to the magistrate whether the joint line is the knee or the ankle.
Assuming the joint line is the knee, relator's leg was amputated
approximately four inches below his right knee.)

(App'x at ¶ 41.) The magistrate reviewed the schedule of compensation contained in R.C.
4123.57(B), which provides "[f]or the loss of a foot, one hundred fifty weeks." The
magistrate, giving due deference to the commission's statutory interpretation consistent
with the holding in Swallow v. Indus. Comm., 36 Ohio St.3d 55, 57 (1988), found that the
commission did not abuse its discretion with respect to Croston's motion:

The magistrate finds that the commission did not abuse its
discretion when it determined that [Croston] had not met his
burden of proving that he had sustained a 100 percent loss of
his right leg by amputation, that he was only entitled to 150
weeks of PPD compensation, and in further denying his request
to exercise continuing jurisdiction. The stipulation of evidence
shows that, while relator has clearly lost more than just his
right foot, he has not lost his entire leg.

(App'x at ¶ 44.) However, to the extent the magistrate factually interprets the BWC's
decision, we do not adopt the magistrate's decision as our own. Specifically, we exclude the
following language:

To the extent there appears to be any clerical error, that error
involved the BWC's statement that relator had a "100%
 6
No. 15AP-937
AMPUTATION of the RIGHT LEG" when it is clear he did not.
As such, it is this magistrate's decision that this court should
deny relator's request for a writ of mandamus.

(Emphasis sic.) Id. We deny Croston's petition for a writ of mandamus because he has not
established all its necessary elements as a matter of law.
IV. CONCLUSION
{¶ 19} Upon review of the magistrate's decision, an independent review of the
record, and due consideration to Croston's objections, we find the magistrate has properly
stated salient facts and applied the appropriate law in finding that Croston is not entitled
to relief in mandamus. Therefore, we overrule Croston's objections to the magistrate's
decision and adopt the decision as our own, including the findings of facts and conclusions
of law therein, with the exception of language noted above. Consistent with the legal
conclusions reached by the magistrate, the requested writ of mandamus is denied.
Objections overruled;
writ of mandamus denied.

DORRIAN and LUPER SCHUSTER, JJ., concur.
 7
No. 15AP-937
APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Timothy Croston, :

Relator, :

v. : No. 15AP-937

Alliance Castings Company : (REGULAR CALENDAR)

and Ohio Industrial Commission, :

Respondents. :

MAGISTRATE'S DECISION

Rendered on April 27, 2016

Schiavoni, Schiavoni, Bush & Muldowney, and Shawn R.
Muldowney, for relator.

Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.

IN MANDAMUS
{¶ 20} Relator, Timothy Croston, 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 refusing to exercise continuing jurisdiction, to exercise
its continuing jurisdiction and determine that relator is entitled to 50 additional weeks of
permanent partial disability ("PPD") compensation.
Findings of Fact:
{¶ 21} 1. Relator sustained a work-related injury on July 25, 2013 when he fell from
a ladder and fractured certain bones in his right ankle and leg. Relator's workers'
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No. 15AP-937
compensation claim was originally allowed for "closed fractured talus right ankle; right
distal tibia fracture."
{¶ 22} 2. Following surgery, relator's right leg developed gangrene and was
amputated below the knee. Relator's claim was additionally allowed for "gangrene right;
right leg amputation below knee unilateral."
{¶ 23} 3. In an order mailed November 14, 2013, the Ohio Bureau of Workers'
Compensation ("BWC") made the following award of PPD compensation to relator:
The Ohio Bureau of Workers' Compensation (BWC) has made
the following decision:

The injured worker has sustained a 100% AMPUTATION of
the RIGHT LEG. It is ordered that the injured worker be
awarded permanent partial compensation for 150 weeks at
the rate of $837.00 from 09/23/2013 to 08/07/2016. The
total award is $125,550.00.

This decision is based on:

Surgery report dated 9-23-13 and C9 dated 10-15-13.

(Emphasis sic.)

{¶ 24} The surgical report on which that decision was premised indicates that the
operation was "[r]ight below knee amputation" and further provides that the amputation
was made "approximately 12 cm from the joint line."
{¶ 25} 4. Neither relator nor his employer appealed this determination.
{¶ 26} 5. In December 2014, relator filed a motion requesting the following:
Now comes the claimant and asks he be awarded an additional
50 weeks, as the claimant was originally ordered 100%
amputation of the right leg and it would appear that only 150
weeks were paid instead of 200 weeks. Please pay the
additional 50 weeks.

{¶ 27} 6. In an order mailed January 9, 2015, the BWC referred relator's motion to
the commission and recommended the following:
BWC recommends that C86 filed [12/10/2014] requesting an
additional 50 weeks for permanent partial compensation be
denied because based on the point of amputation the [Injured
Worker is] only entitled to loss of the foot which is 150 weeks
and that is what is being paid.
 9
No. 15AP-937

{¶ 28} 7. Relator appealed and the matter was heard before a district hearing officer
("DHO") on February 23, 2015. The DHO denied relator's request finding that the
November 14, 2013 BWC order was a final order which had not been appealed. Specifically,
the DHO order provides:
For clarification, per the Injured Worker's counsel, counsel is
requesting the Industrial Commission to invoke continuing
jurisdiction pursuant to Ohio Revised Code Section 4123.52.
Counsel alleges the Bureau of Workers' Compensation order
dated 11/14/2013 and [sic] contains an error. Specifically,
Counsel for the Injured Worker alleges the BWC correctly
ordered a 100% amputation of the right leg but incorrectly
awarded permanent partial compensation for 150 weeks.

In the instant claim the permanent partial award was set on
11/14/2013. Counsel for the Injured Worker is dissatisfied
with the award and believed it should have been a 200 week
award.

The Counsel for the Injured Worker's request to invoke
continuing jurisdiction is denied. Relief pursuant to Ohio
Revised Code section 4123.52 is an extraordinary remedy. The
remedy for disagreement of an Industrial Commission order
is an appeal. In the instant claim, no appeal was filed to the
decisions placed on 11/14/2013. Therefore the BWC order
dated 11/14/2014 [sic] is a final order.

As no basis has been established in support of R.C. section
4123.52, the Counsel for the Injured Worker's request is
denied. Further there is no jurisdiction to address the 50
weeks of compensation.

{¶ 29} 8. Relator's appeal was heard before a staff hearing officer ("SHO") on April
10, 2015. The SHO affirmed the prior DHO order and denied relator's request that the
commission exercise its continuing jurisdiction finding that the medical evidence cited by
BWC was consistent with the award of compensation for 150 weeks, and further finding
that relator had not appealed that order. Specifically, the SHO order provides:
For clarification, per the Injured Worker's Counsel, the
Injured Worker is requesting the Industrial Commission
invoke continuing jurisdiction pursuant to Ohio Revised Code
section 4123.52. Counsel contends the order of the
Administrator issued 11/14/2013 contains an error. Counsel is
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No. 15AP-937
requesting the Industrial Commission invoke continuing
jurisdiction to correct a mistake of an inferior tribunal.
Specifically, Counsel asserts the Administrator incorrectly
awarded 150 weeks of compensation for the amputation of the
right leg. Counsel contends the award should be for 200 weeks
of compensation.

The request to invoke continuing jurisdiction is denied.

This order is based on the order of the Administrator issued
11/14/2013. Said order addresses the C-9 Request for Medical
Service Reimbursement or Recommendation for Additional
Conditions for Industrial Injury or Occupational Disease filed
10/15/2013. The C-9 filed 10/15/2013 completed by John
Riester, M.D., requests the additional allowance of a below the
right knee amputation. The order of the Administrator
references reliance upon the surgical report dated
09/23/2013. The surgical report references a below the knee
amputation. Thus, the medical evidence cited by the
Administrator is consistent with the award of compensation
for 150 weeks.

Additionally, the Staff Hearing Officer notes that relief
pursuant to Ohio Revised Code section 4123.52 is an
extraordinary relief. The Administrator placed the order on
11/14/2013. Counsel for the Injured Worker disagrees with
the order. However, no appeal to the order was filed. The
remedy for disagreement of an order is an appeal.

This order is based on Ohio Revised Code section 4123.52,
surgical report dated 09/23/2013, and C-9 filed 10/15/2013
completed by Dr. Riester.

{¶ 30} 9. Relator's appeal was refused by order of the commission mailed May 7,
2015.
{¶ 31} 10. Relator filed a request for reconsideration asserting that the November
14, 2013 BWC order found that relator had sustained a "100% amputation of the right leg"
and, as such, he should have been awarded 200 weeks of PPD compensation. Relator
argues that he believed that the award of 150 weeks constituted a clerical error when the
award clearly should have been for 200 weeks.
{¶ 32} 11. In an order mailed June 13, 2015, relator's request for reconsideration
was denied.
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No. 15AP-937
{¶ 33} 12. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 34} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
{¶ 35} 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
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).
{¶ 36} 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).
{¶ 37} Pursuant to R.C. 4123.52, "[t]he 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
 12
No. 15AP-937
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.

{¶ 38} In the present case, it is clear that relator did not appeal the BWC order
awarding him 150 weeks of compensation. Res judicata bars any change to a final order
unless the moving party can satisfy the requirements under R.C. 4123.52 for the exercise of
continuing jurisdiction. See State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454
(1998).
{¶ 39} Relator asserts that he presented sufficient evidence that the BWC order
contained a clerical error. Because the BWC's orders additionally allowing his claim for
right leg amputation below knee unilateral and finding that he had sustained a 100 percent
amputation of the right leg are seemingly inconsistent, relator asserts there must be a
clerical error. Relator asserts a clear legal right to have the commission exercise continuing
jurisdiction, and award him the additional 50 weeks of compensation to which he believes
he is entitled.
{¶ 40} The magistrate disagrees with relator's argument. First, the stipulation of
evidence is clear: relator's right leg was amputated below his knee. The surgical report
indicates that his fibula was cut just proximal to the level which was approximately 12
centimeters from the joint line. (It is unclear to the magistrate whether the joint line is the
 13
No. 15AP-937
knee or the ankle. Assuming the joint line is the knee, relator's leg was amputated
approximately four inches below his right knee.)
{¶ 41} R.C. 4123.57(B) sets forth the schedule of compensation associated with the
applicable injury. The statute provides:
In cases included in the following schedule the compensation
payable per week to the employee is the statewide average
weekly wage as defined in division (C) of section 4123.62 of
the Revised Code per week and shall be paid in installments
according to the following schedule:

***

For the loss of a foot, one hundred fifty weeks.

{¶ 42} "It is a well-settled rule that courts, when interpreting statutes, must give due
deference to an administrative interpretation formulated by an agency that has
accumulated substantial expertise, and to which the General Assembly has delegated the
responsibility of implementing the legislative command." Swallow v. Indus. Comm., 36
Ohio St.3d 55, 57 (1988).
{¶ 43} The magistrate finds that the commission did not abuse its discretion when
it determined that relator had not met his burden of proving that he had sustained a 100
percent loss of his right leg by amputation, that he was only entitled to 150 weeks of PPD
compensation, and in further denying his request to exercise continuing jurisdiction. The
stipulation of evidence shows that, while relator has clearly lost more than just his right
foot, he has not lost his entire leg. To the extent there appears to be any clerical error, that
error involved the BWC's statement that relator had a "100% AMPUTATION of the RIGHT
LEG" when it is clear he did not. (Emphasis sic.) As such, it is this magistrate's decision
that this court should deny relator's request for a writ of mandamus.

/S/ MAGISTRATE
STEPHANIE BISCA
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No. 15AP-937
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).