State ex rel. Ottinger v. B&B Wrecking & Excavation, Inc.

[Cite as State ex rel. Ottinger v. B&B Wrecking & Excavation, Inc., 2023-Ohio-1758.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Billy J. Ottinger, :

Relator, :
No. 19AP-745
v. :
(REGULAR CALENDAR)
B&B Wrecking & Excavating, Inc. et al, :

Respondents. :

D E C I S I O N

Rendered on May 25, 2023

On brief: Craigg E. Gould, for relator.

On brief: Dave Yost, Attorney General, and Andrew J.
Alatis, for respondent Industrial Commission of Ohio.

On brief: Meyers, Roman, Friedberg & Lewis, and Steven P.
Dlott, for respondent B&B Wrecking & Excavating, Inc.

IN MANDAMUS

BOGGS, J.

{¶ 1} Relator, Billy J. Ottinger (“Ottinger”), has filed this original action requesting

a writ of mandamus ordering the respondent, Industrial Commission of Ohio

(“commission”), to vacate its order that granted the Ohio Bureau of Workers’

Compensation’s (“BWC”), motion to exercise continuing jurisdiction and to reinstate the

BWC’s order from February 6, 2019, which granted loss of use benefits to Ottinger. For the

following reasons, we deny Ottinger’s request for a writ of mandamus.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,

this court referred the matter to a magistrate of this court. The magistrate issued the
No. 19AP-745 2

appended decision, including findings of fact and conclusions of law. The magistrate found

that the commission did not abuse its discretion, that the commission’s order was

supported by some evidence, and recommended that this court deny Ottinger’s petition for

writ of mandamus. (Mag.’s Decision at 8-11.)

{¶ 3} On October 24, 2022, Ottinger filed his objections to the magistrate’s

decision. Therefore, we must independently review the decision to ascertain whether “the

magistrate has properly determined the factual issues and appropriately applied the law.”

Civ.R. 53(D)(4)(d).

I. Facts and Procedural History

{¶ 4} On June 12, 2018, Ottinger was injured when he fell from a roof in the course

of, and arising from, his employment with B&B Wrecking & Excavation, Inc. He sustained

multiple injuries and was treated at Akron City Hospital immediately after his fall. Ottinger

filed a claim with the BWC, which was allowed for various conditions, including

“paraplegia, incomplete.”

{¶ 5} On January 23, 2019, Ottinger filed a motion for compensation for the

functional loss of use of both of his legs. Ottinger stated, “IN SUPPORT OF THIS MOTION,

PLEASE CONSIDER THAT THE MEDICAL ON FILE AND THE FACT THAT HIS CLAIM

IS ALLOWED FO[R] ‘PARAPLEGIA.’ ” (Stipulation at 124.) BWC claim notes from

January 31, 2019, indicate a nurse’s review of Ottinger’s motion and state that the medical

evidence of Akron City Hospital from the day Ottinger was injured and the allowed

condition of “paraplegia” support Ottinger’s request for compensation of the functional loss

of use of both of his legs.

{¶ 6} However, prior BWC claim notes from January 11, 2019, indicate that

Ottinger could walk “for 200 feet, uses a walker and wheelchair for mobilization, and is
No. 19AP-745 3

continuing physical therapy on his legs with a goal of returning to work.” (Mag.’s Decision

at 2.)

{¶ 7} On February 4, 2019, the BWC granted Ottinger’s request for compensation

for the functional loss of use of both legs based upon Ottinger’s motion, the June 12, 2018,

emergency room report, and the medical documentation in the claim. On February 6, 2019,

the BWC issued an order vacating its February 4, 2019 order, and modifying the order by

changing only the period of the award.

{¶ 8} On March 21, 2019, the BWC filed a motion requesting the commission to

exercise continuing jurisdiction under R.C. 4123.52, arguing that there was a clear mistake

of law, mistake of fact, and clerical error in the BWC’s order granting Ottinger’s motion.

The BWC asked the commission to vacate the February 6, 2019 order, and to deny

Ottinger’s request for loss of use compensation.

{¶ 9} A district hearing officer (“DHO”), issued an order on April 27, 2019, granting

the BWC’s motion to vacate the February 6, 2019 order based on the hearing officer finding

a clear mistake of fact, mistake of law, and error by an inferior tribunal. In discussing the

mistake of fact by the administrator in granting Ottinger’s motion for loss of use

compensation, the DHO noted an incorrect presumption that Ottinger’s claim had been

allowed for “paraplegia” and the existence of contradictory evidence that Ottinger was able

to stand and ambulate with a walker. The DHO found the administrator made a mistake of

law by granting Ottinger’s motion for loss of use compensation in the face of evidence that

Ottinger retained some use of his legs.

{¶ 10} On August 6, 2019, a staff hearing officer (“SHO”), affirmed the DHO’s order.

The SHO stated that the February 6, 2019 order was based on a condition—paraplegia—

that was not allowed in Ottinger’s claim. The SHO went on to find, based on the medical
No. 19AP-745 4

evidence, that Ottinger had failed to demonstrate a loss of use of both legs. Ottinger filed

an appeal with the commission which the commission refused on September 10, 2019.

Having exhausted his administrative remedies, Ottinger filed his complaint for a writ of

mandamus in this court.

{¶ 11} The magistrate found that there was “no abuse of discretion, and the

commission’s order was supported by some evidence. The commission identified the

following two mistakes of fact by the BWC: (1) the incorrect diagnoses of paraplegia instead

of paraplegia, incomplete; and (2) there was evidence on file prior to and subsequent to the

issuance of the order of claimant’s ability to stand and ambulate independently with a

wheeled walker, which is inconsistent with a loss of use award. The commission identified

the mistake of law as being that the award of the loss of use of the right and left legs was

inappropriate because claimant demonstrated some ability or function of lower extremities.

These determinations were not an abuse of discretion and were supported by some

evidence.” (Mag.’s Decision at 8.)

{¶ 12} In response to the magistrate’s decision, Ottinger submitted the following

objections:

(1) The Magistrate erred in finding that the Industrial
Commission of Ohio cited to two (2) mistakes of fact in its
Order when it exercised continuing jurisdiction.

(2) The Magistrate, like the commission, is not a medical
expert and cannot make medical determinations regarding
different conditions.

(3) The Magistrate erred in finding that the Industrial
Commission failed to acknowledge that the BWC’s order was
also based on other “medical documentation in the file.”
No. 19AP-745 5

II. Analysis

{¶ 13} To be entitled to relief in mandamus, Ottinger must establish that he has a

clear legal right to relief, that the commission has a clear legal duty to provide such relief,

and the lack of an adequate remedy in the ordinary course of law. State ex rel. Pressley v.

Indus. Comm., 11 Ohio St.2d 141 (1967). To do so, Ottinger 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 entitled to a writ of

mandamus, Ottinger 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).

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).

{¶ 14} Here, Ottinger challenges the commission’s exercise of continuing

jurisdiction under R.C. 4123.52 as an abuse of discretion. R.C. 4123.52(A) provides, “The

jurisdiction of the industrial commission 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.” “This continuing jurisdiction is limited and

may be invoked only when there is evidence of ‘(1) new and changed circumstances, (2)

fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5) error by [an] inferior
No. 19AP-745 6

tribunal.’ ” State ex rel. Neitzelt v. Indus. Comm., 160 Ohio St.3d 175, 2020-Ohio-1453,

¶ 11, quoting State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 458-59 (1998).

{¶ 15} In his first objection, Ottinger objects to the magistrate’s statement that the

commission identified two mistakes of fact in support of its exercise of continuing

jurisdiction. Ottinger concedes that, as found by the magistrate, the commission justified

its exercise of continuing jurisdiction based on the mistake of fact that Ottinger’s claim had

been allowed for paraplegia. So essentially, Ottinger contests the magistrate’s statement

that the commission identified an additional factual mistake based on the existence of

evidence of Ottinger’s ability to stand and walk with a walker. We are not persuaded by

Ottinger’s argument that the magistrate’s second identified mistake of fact undermines the

magistrate’s decision.

{¶ 16} The DHO’s April 27, 2019 order considered the allowed claim of “paraplegia,

incomplete” and the fact that Ottinger can ambulate in tandem. It found, “the mistake of

fact by the Administrator in issuing the February 2, 2019 order approving the scheduled

loss of the right and left leg was based upon the incorrect diagnoses of paraplegia and

further that there was evidence on file prior to and subsequent to the issuance of the order

of [Ottinger’s] ability to stand and ambulate independently with a wheeled walker.”

(Stipulation at 154.) In that sense, the DHO incorporated both prongs of what the

magistrate has identified as mistakes of fact into a single mistake by the Administrator. In

substance, however, there is no difference.

{¶ 17} The SHO’s August 6, 2019 decision follows the same analysis and reasoning

that the claim did not allow for “paraplegia” but only for “paraplegia, incomplete.” The

August 6, 2019 decision also found that Ottinger “has failed to establish that he currently

has a scheduled loss of use of both lower extremities.” (Stipulation at 217.) Even though
No. 19AP-745 7

the SHO did not specifically address the undisputed evidence that Ottinger retains some

use of his legs as a justification for the invocation of continuing jurisdiction, it clearly

adopted the DHO’s finding of a mistake regarding whether Ottinger established that he

currently has a complete and permanent loss of use of both legs.

{¶ 18} While Ottinger is correct that the mistake of fact identified by the commission

for its exercise of continuing jurisdiction was the allowed claim of “paraplegia, incomplete”

rather than “paraplegia,” the commission also clearly looked to the fact that Ottinger has

some use of his legs to support its exercise of continuing jurisdiction. The issue of whether

Ottinger can ambulate is so closely intertwined with the allowed claim of “paraplegia,

incomplete” that the former supports the latter.

{¶ 19} Ultimately, the commission found at least one clear mistake of fact that is

supported by some evidence, and we do not find an abuse of discretion in its exercise of

continuing jurisdiction. A single mistake of fact or mistake of law is all that is needed to

justify the commission’s exercise of continuing jurisdiction. As long as some medical

evidence supports the commission’s findings, those findings will not be disturbed. State ex

rel. Pritt v. Indus Comm., 10th Dist. No. 17AP-98, 2018-Ohio-1066, ¶ 13. Even if there is

“conflicting evidence before the commission, this court does not re-weigh the evidence in

mandamus.” State ex rel. Cincinnati, Inc. v. Lowe, 10th Dist. No. 04AP-241, 2005-Ohio-

516, ¶ 6. Here the commission had ample evidence in the record, which supported the

commission’s finding that the Administrator granted Ottinger’s motion based on the factual

mistake that his claim had been allowed for “paraplegia,” not “paraplegia, incomplete,” in

order to properly exercise continuing jurisdiction. And whether or not the commission

considered it as a justification for exercising continuing jurisdiction or as justification for

vacating the BWC order thereafter, there is likewise some evidence in the record to support
No. 19AP-745 8

the commission’s determination that the Administrator mistakenly determined that

Ottinger was entitled to loss of use compensation when faced with evidence that Ottinger

was able to stand and walk with a walker. The commission, as the magistrate’s analysis

confirms, considered Ottinger’s ability to ambulate as inconsistent with a claim of

“paraplegia.” For these reasons, we overrule Ottinger’s first objection.

{¶ 20} We also disagree with and overrule Ottinger’s second objection, in which he

argues that the magistrate and the commission improperly acted as medical experts by

distinguishing between the allowed condition of “paraplegia, incomplete” and the

condition of “paraplegia” which was not allowed in the claim. The magistrate, like the

commission, properly looked to the allowed conditions in the claim and found that

“paraplegia, incomplete” did not support loss of use compensation for Ottinger. While the

commission and magistrate both noted that Ottinger has use of his legs based upon medical

evidence in the record, this does not amount to them standing in as medical experts.

{¶ 21} Finally, we are also not persuaded by Ottinger’s third objection. Ottinger

argues that the BWC order granting loss of use compensation was based not just on

Ottinger’s motion and the medical records from Ottinger’s initial hospital visit after the

injury, but also on the other “medical documentation in the claim.” (Oct. 24, 2022 Objs. at

13.) Ottinger argues that the commission and the magistrate should not have reweighed

that evidence. Rather, he maintains that the magistrate should have assumed from the

February 6, 2019 order that the Administrator considered all the medical records, including

the records undisputedly showing that Ottinger could stand and walk short distances with

a walker, and still concluded that Ottinger was entitled to compensation for the complete

loss of use of his legs. However, Ottinger misses the point. Neither the commission nor the

magistrate reweighed the evidence in the record. In vacating the February 6, 2019 order
No. 19AP-745 9

granting Ottinger’s motion for compensation for the loss of use of his legs, the commission

corrected a clear mistake of fact and law. The medical evidence that existed showed that

Ottinger could stand and ambulate, consistent with the allowed condition of “paraplegia,

incomplete.” To grant Ottinger’s motion in the face of that evidence was a clear mistake of

law because Ottinger did not establish that he suffers a complete and permanent loss of use

of his legs. We therefore overrule Ottinger’s third objection.

III. Conclusion

{¶ 22} Following an independent review of this matter, we find the magistrate has

properly determined the facts and applied the appropriate law. Therefore, we adopt the

magistrate's decision as our own, including the findings of fact and conclusions of law

contained therein.

{¶ 23} In accordance with the magistrate's decision, we deny Ottinger’s request for
a writ of mandamus.
Objections overruled; writ denied.
DORRIAN and JAMISON, JJ., concur.
No. 19AP-745 10

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Billy J. Ottinger, :

Relator, :

v. : No. 19AP-745

B&B Wrecking & Excavating, Inc. et al., : (REGULAR CALENDAR)

Respondents. :

MAGISTRATE'S DECISION

Rendered on October 10, 2022

Craigg E. Gould, for relator.

Meyers, Roman, Friedberg & Lewis, and Steven P. Dlott, for
respondent B & B Wrecking & Excavating, Inc.

Dave Yost, Attorney General, and Andrew J. Alatis, for
respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶ 24} Relator Billy J. Ottinger ("claimant") has filed this original action requesting
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order that granted the motion for continuing jurisdiction filed
by the Ohio Bureau of Workers' Compensation ("BWC") and to reinstate the BWC's
February 6, 2019, order that granted loss of use compensation to claimant pursuant to R.C.
4123.57(B).
Findings of Fact:
No. 19AP-745 11

{¶ 25} 1. Claimant was injured on June 12, 2018, in the course of and arising from
his employment with respondent B&B Wrecking & Excavation, Inc. ("employer") when he
fell from a roof. Claimant received treatment at Akron City Hospital immediately after the
injury.
{¶ 26} 2. Claimant filed a claim with the BWC, and the claim was allowed for
neuromuscular dysfunction of bladder, unspecified; acute deep vein thrombosis of
gastrocnemius vein right lower leg; concussion; incomplete spinal cord injury, lumbar;
vertebral body burst fracture with posterior displacement L1; scalp laceration;
nondisplaced inferior endplate thoracic fracture T12; neurogenic bowel, not elsewhere
classified; paraplegia, incomplete; erectile dysfunction; other osteoporosis without current
pathological fracture, lumbar; other osteoporosis without current pathological fracture;
bilateral hip; and other osteoporosis without current pathological fracture, bilateral knees.
{¶ 27} 3. According to the January 11, 2019, BWC claim notes, the physical therapy
records indicated that claimant can ambulate for 200 feet, uses a walker and wheelchair for
mobilization, and is continuing physical therapy on his legs with a goal of returning to work.
{¶ 28} 4. On January 23, 2019, claimant filed a C-86 motion for compensation for
the functional loss of use of both of his lower extremities. The motion indicates the
following: "IN SUPPORT OF THIS MOTION, PLEASE CONSIDER THAT THE MEDICAL
ON FILE AND THE FACT THAT HIS CLAIM IS ALLOWED F[OR] 'PARAPLEGIA.' "
{¶ 29} 5. According to the January 31, 2019, BWC claim notes, a nurse review of
claimant's C-86 motion indicated that the medical evidence from Akron City Hospital on
June 12, 2018, and the allowed condition of paraplegia support the request for
compensation for the functional loss of use of both of claimant's lower extremities. The
nurse defined paraplegia as paralysis of the legs and lower body.
{¶ 30} 6. On February 4, 2019, the BWC issued an order granting claimant's request
for loss of use compensation for the functional loss of use of both of his lower extremities,
awarding $186,400 for each leg. The order was based upon the C-86 motion, the June 12,
2018, emergency room report, and the medical documentation in the claim.
{¶ 31} 7. On February 6, 2019, the BWC issued an order vacating its order of
February 4, 2019, modifying only the period of the award.
No. 19AP-745 12

{¶ 32} 8. On March 5, 2019, based upon the BWC order finding a loss of use of both
extremities, claimant filed a motion requesting permanent total disability ("PTD")
compensation.
{¶ 33} 9. On March 15, 2019, the staff hearing officer ("SHO") issued a tentative
order granting claimant's request for PTD from June 12, 2018, and to continue. The BWC
filed an objection to the SHO's tentative order, asserting there is insufficient medical
documentation that claimant's request for statutory PTD rises to the level of a permanent
and total loss of use.
{¶ 34} 10. On March 21, 2019, the BWC filed a motion requesting that the
commission exercise its continuing jurisdiction, pursuant to R.C. 4123.52, based on a clear
mistake of law, mistake of fact and clerical error, and vacate the BWC's February 6, 2019,
order granting claimant loss of use compensation. The BWC asserted the following: (1) the
claim is only allowed for paraplegia, incomplete, and not paraplegia; (2) the order was
based on a January 31, 2019, nurse review that found loss of use based on the allowance of
paraplegia and the medical records on the date of injury; (3) after the date of injury,
claimant had emergency surgery and extensive physical therapy; (4) claimant has not been
found to have reached maximum medical improvement ("MMI"); (5) there are physical
therapy records from January 10, 2019, that indicate that claimant has regained the ability
to walk; and (6) the BWC order should be vacated and the request for loss of use award for
the right and left leg should be denied due to lack of medical evidence to support loss of use.
{¶ 35} 11. After a hearing before a district hearing officer ("DHO"), the DHO issued
an order on April 27, 2019, finding the following: (1) the DHO invokes the continuing
jurisdiction based upon a clear mistake of fact, mistake of law, and error in granting the
scheduled loss of use of the right and left leg; (2) the BWC's February 6, 2019, order granted
loss of use of both the right and left legs based upon the June 12, 2018, emergency room
record and the false assumption that the claim was recognized for paraplegia; (3) the initial
allowance in this claim included, in part, the condition of paraplegia, incomplete; (4) the
medical evidence on file demonstrates that claimant has progressed through appropriate
rehabilitation and has some use of the right and left leg as documented by treatment records
from Allied Health Physical Therapy dated January 10, 2019, through April 2, 2019; (5) the
physical therapy records document progression of claimant's standing and ambulation with
No. 19AP-745 13

assistance and continued therapy goals of increased walking, which is inconsistent with the
award for the loss of use of the right and left legs; (6) while claimant sustained a significant
injury, the loss of use of both legs as awarded by the BWC was premature, as it did not
appropriately consider all the medical evidence; (7) the nurse review only considered the
medical evidence and exam findings from Akron City Hospital on June 12, 2018, and
presumed the incorrect allowance of paraplegia per the January 31, 2019, BWC notes in
recommending the loss of use of both legs; (8) the mistake of fact by the BWC in issuing the
February 6, 2019, order was based upon the incorrect diagnoses of paraplegia, and the fact
that there was evidence on file prior to and subsequent to the issuance of the order of
claimant's ability to stand and ambulate independently with a wheeled walker; (9) the
mistake of law was that the award of the loss of use of the right and left legs is inappropriate
when an injured worker demonstrates some ability or function of lower extremities; and
(10) the DHO vacates the February 6, 2019, order of the BWC and denies the January 23,
2019, C-86 motion requesting compensation for the loss of use of both lower extremities.
Claimant appealed.
{¶ 36} 12. On July 8, 2019, Michael Harris, M.D., performed an independent
medical examination ("IME"), in which he found the following: (1) the allowed injuries have
not resulted in a total, permanent loss of use of the left and right legs to such a degree that
the affected body parts are useless for all practical purposes; (2) claimant is ambulatory
now; (3) claimant ambulates independently with a walker for short distances, which
certainly can be helpful going from his bed to a bathroom, where he can stand and void;
and (4) while claimant does have an incomplete spinal cord injury, he does not have
complete loss of use of his left and right lower extremities.
{¶ 37} 13. After a hearing before an SHO, the SHO issued an order on August 6,
2019, affirming the DHO's order and finding the following: (1) the BWC has established a
mistake of fact, mistake of law, and clerical error, which enables the commission to exercise
continuing jurisdiction; (2) the February 6, 2019, BWC order was based on a mistake of fact
and law, the order is vacated, and claimant's previous request for a scheduled loss of use of
the right and left legs is denied; (3) the BWC's February 6, 2019, order was based on a
condition that was not, and is not allowed in the claim; (4) the claim is allowed for
paraplegia, incomplete, and claimant's own motion for the requested scheduled loss of use
No. 19AP-745 14

of both lower extremities incorrectly asserts that the claim is allowed for paraplegia; (5)
furthermore, the nurse's review, as documented in the BWC's notes on file, was also based
on incorrect information; specifically, the January 31, 2019, BWC note indicates that the
Akron City Hospital medical evidence and examine findings from June 12, 2018, and the
allowed condition in the claim paraplegia─defined as paralysis of the legs and lower
body─supports the request for compensation for the functional loss of use of both his lower
extremities; (6) as previously indicated, relative to the medical term paraplegia, this claim
is allowed for paraplegia, incomplete, and not paraplegia, with the latter diagnosis leading
to the conclusion that claimant has complete paralysis; (7) furthermore, from a medical
standpoint, clamant has failed to establish that he currently has a scheduled loss of use of
both lower extremities; (8) the physical therapy notes do document progress relative to his
use and function of his lower extremities; (9) at the hearing, claimant testified that he is
able to use both feet/legs in order to drive a car; (10) although he must use a walker during
his daily activities, and his functioning is limited, he has not established a total loss of use;
(11) the SHO relies upon the report of Dr. Harris, who concludes that the allowed injuries
have not resulted in a total, permanent loss of use of the left and right legs to such a degree
that the affected body parts are useless for all practical purposes; (12) Dr. Harris notes that
claimant is ambulatory, as he ambulates independently with a walker for short distances;
and (13) Dr. Harris notes that claimant does have an incomplete spinal cord injury and
remains quite weak, but he does not have a complete loss of use of his left and right lower
extremities. Claimant appealed, but the commission refused the appeal on September 10,
2019.
{¶ 38} 14. On August 6, 2019, a different SHO issued an order denying claimant's
request for PTD, finding that claimant's PTD request was based on a finding of loss of use
of both legs as a result of the BWC's February 6, 2019, order; however, the February 6, 2019,
order has been vacated. Claimant appealed, but the commission refused the appeal on
September 10, 2019.
{¶ 39} 15. On October 30, 2019, claimant filed a complaint for writ of mandamus,
requesting that this court order the commission to vacate its order that granted the motion
for continuing jurisdiction filed by the BWC and to reinstate the BWC's February 6, 2019,
order that granted loss of use compensation to claimant.
No. 19AP-745 15

Conclusions of Law and Discussion:
{¶ 40} The magistrate recommends that this court deny claimant's request for a writ
of mandamus.
{¶ 41} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of law.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 42} A clear legal right to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order that 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).
{¶ 43} R.C. 4123.57(B) authorizes scheduled compensation to a claimant for the
total loss of a body part, such as the total loss of an arm or leg. "Loss" within the meaning
of the statute includes not only amputation, but also the loss of use of the affected body
part. State ex rel. Wyrick v. Indus. Comm., 138 Ohio St.3d 465, 2014-Ohio-541, ¶ 10, citing
State ex rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364. An injured
worker claiming loss of use under R.C. 4123.57(B) bears the burden of showing that the loss
of use is complete and permanent. State ex rel. Carter v. Indus. Comm., 10th Dist. No.
09AP-30, 2009-Ohio-5547.
{¶ 44} 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." R.C. 4123.52(A) contains a
clear and broad grant of continuing jurisdiction to the commission. State ex rel. Neitzelt v.
Indus. Comm., 160 Ohio St.3d 175, 2020-Ohio-1453, ¶ 15. However, that jurisdiction is
conditioned on specific criteria: (1) new and changed circumstances, (2) fraud, (3) clear
No. 19AP-745 16

mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal. State ex rel.
Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998).
{¶ 45} Claimant asserts that the commission abused its discretion by exercising
continuing jurisdiction because no valid legal basis for reconsideration existed to vacate an
otherwise legal order from the BWC. Claimant presents four arguments in support. First,
claimant argues that the commission did not have continuing jurisdiction because the BWC
order was not appealed. Claimant urges that uncertainty and confusion will result if a BWC
order can be vacated weeks, months, or years later because either the claimant, employer,
or BWC decide it was incorrectly decided. Claimant contends that continuing jurisdiction
should only be granted when an order is not supported by evidence that is not delineated
on its face, and requests for continuing jurisdiction should not be granted when it seeks a
reweighing of evidence, which was the case here.
{¶ 46} Second, claimant argues that the BWC order was supported by some
evidence, and the commission improperly searched for evidence outside the BWC's order
to support its imposition of continuing jurisdiction. Claimant asserts that the BWC's order
granted loss of use benefits based on the allowed conditions in his claim and correctly listed
the allowed conditions, and it did not contain any reference to anything the nurse did or
did not review or anything contained in the BWC's C-86 motion requesting continuing
jurisdiction. Claimant contends that the commission went outside the four corners of the
BWC's order to justify the imposition of continuing jurisdiction, but evidentiary review is
limited to the evidence and reasoning identified in the order. Claimant asserts that the
commission's finding that the BWC was acting under the improper assumption that the
claim was allowed for paraplegia, complete, and not incomplete, is not evident in the order
and is merely conjecture.
{¶ 47} Third, claimant argues that the commission abused its discretion when it
granted continuing jurisdiction because the BWC order contained no clear mistake of law
or fact, asserting the following: (1) with regard to the mistake of fact, although both hearing
officers found that the BWC made a false assumption regarding the allowed conditions, this
assumption is pure conjecture, and the BWC's order lists only the allowed conditions; (2)
with regard to the mistake of law, R.C. 4123.57(B) does not bar compensation for loss of
limb when there is a light residual utility in the limb; (3) the BWC issued its order eight
No. 19AP-745 17

months after the injury with complete knowledge that the paraplegia was incomplete, as all
of the medical evidence in the claim file shows that claimant could barely use his legs; (4)
although the BWC argues that some physical therapy notes were not considered, this is
impossible to know; although the order does not mention them, not all evidence needs to
be cited; (5) the evidence that purportedly supported the exercise of continuing
jurisdiction─claimant's January 10, 2019, physical therapy notes─was readily discoverable
before the BWC awarded the loss of use award, and there was no new and changed
circumstances; and (6) it was not the nurse who issued the BWC's orders but the claim
service specialist who is assigned to the claim and who intimately knows the extent of
claimant's injury and what has been transpiring medically.
{¶ 48} Fourth, claimant argues that the commission's finding that the little use he
has of his legs is "functional use" is contrary to the medical records. Claimant asserts that
the commission erroneously found the nurse reviewer reviewed only the emergency room
notes, given the BWC indicated that the loss of use award relied upon the emergency room
records and the medical documentation in the claim. Claimant points out that the nurse
reviewer did not testify at either hearing, so the hearing officers have no idea what medical
records were actually reviewed. Claimant also points out that the medical records in the
case reveal that claimant was unable to functionally ambulate more than a short distance
and was dependent upon a wheelchair or walker. Thus, claimant asserts, although he had
some residual function in his legs, he still suffered a loss of use of his legs.
{¶ 49} After a review of the record and claimant's arguments, the magistrate finds
no abuse of discretion, and the commission's order was supported by some evidence. The
commission identified the following two mistakes of fact by the BWC: (1) the incorrect
diagnoses of paraplegia instead of paraplegia, incomplete; and (2) there was evidence on
file prior to and subsequent to the issuance of the order of claimant's ability to stand and
ambulate independently with a wheeled walker, which is inconsistent with a loss of use
award. The commission identified the mistake of law as being that the award of the loss of
use of the right and left legs was inappropriate because claimant demonstrated some ability
or function of lower extremities. These determinations were not an abuse of discretion and
were supported by some evidence.
No. 19AP-745 18

{¶ 50} Initially, the magistrate finds claimant's public-policy arguments without
merit, as they have no basis in law, and the statutory law regarding the exercising of
continuing jurisdiction controls the matter. Presumably the General Assembly took into
account the public-policy considerations behind the continuing jurisdiction scheme, and
arguments, in this respect, are best directed at the General Assembly. Public-policy
arguments aside, the commission here did not abuse its discretion in asserting continuing
jurisdiction. If the BWC, in fact, made a determination based upon the mistaken belief that
paraplegia─and not paraplegia, incomplete─was the allowed condition, then such would
constitute a mistake of fact. It is undisputed that non-allowed conditions cannot be used to
advance or defeat a claim for compensation. State ex rel. Waddle v. Indus. Comm., 67 Ohio
St.3d 452 (1993). Therefore, the issue in this case becomes whether the BWC committed a
"clear" mistake of fact. Although the BWC's orders do not specifically indicate that the
orders were based upon the mistaken belief that the allowed condition was paraplegia, the
orders do indicate that they were based on the C-86 motion, and the June 12, 2018,
emergency room report. The January 23, 2019, C-86 motion wrongly indicates that the
claim was allowed for paraplegia. Furthermore, the January 31, 2019, nurse review of
claimant's C-86 motion specifically indicates that the medical evidence from Akron City
Hospital on June 12, 2018, and the allowed condition of paraplegia support the request for
compensation. The C-86 motion and BWC claim notes clearly misidentify the allowed
condition, and it was not pure conjecture for the commission to recognize that the BWC
relied upon a C-86 motion and most assuredly its own claim notes that both misidentified
the allowed condition in finding a loss of use of both legs. These circumstances are
sufficiently clear to find that the BWC made a clear mistake of fact.
{¶ 51} Similarly, the commission's continuing-jurisdiction determination as to the
BWC's mistake of fact regarding claimant's ability to stand and ambulate was not an abuse
of discretion. In making this determination, the commission found that the BWC nurse
reviewed only the medical evidence and exam findings from Akron City Hospital on
June 12, 2018, and failed to consider the other evidence in the file showing claimant's ability
to stand and ambulate independently with a wheeled walker. Limiting its review to the
records from Akron City Hospital on June 12, 2018, the date of the injury, resulted in a clear
mistake of fact that claimant could not ambulate. In fact, the medical evidence included in
No. 19AP-745 19

the record, including those summarized in the BWC's own January 11, 2019, claim notes,
indicate that the physical therapy notes show that claimant can ambulate for 200 feet and
is continuing physical therapy on his legs. Thus, the magistrate finds no abuse of discretion
when the commission found a mistake of fact regarding the BWC's finding related to
claimant's ambulation.
{¶ 52} With regard to the mistake of law, the commission found that because it
concluded there existed in the record evidence ignored by the BWC that claimant could
stand and ambulate and was undergoing further therapy to increase his ambulation, it was
a mistake of law for the BWC to conclude claimant was entitled to compensation for loss of
use of his legs. Given the magistrate's above findings, it was not an abuse of discretion for
the commission to conclude such. There existed clear evidence in the record subsequent to
the date-of-injury emergency room report from Akron City Hospital that claimant
eventually began to regain some ambulation with and without a walker and was continuing
to improve with physical therapy. Given the existence of this evidence, the commission
could find the BWC made a mistake of law in granting a loss of use of both legs.
{¶ 53} Once the commission properly found that it could exercise continuing
jurisdiction based upon a mistake of fact and law, the commission was able to reexamine
all aspects of the case and reevaluate the evidence regarding the loss-of-use benefits claim.
See State ex rel. Sheppard v. Indus. Comm., 139 Ohio St.3d 223, 2014-Ohio-1904, ¶ 24
(finding once the commission exercises continuing jurisdiction and vacates an order it is
required to reexamine all facets of claimant's eligibility for compensation). The magistrate
has already discussed the evidence in the record that showed claimant's allowed claim was
for paraplegia, incomplete, and not paraplegia. As for the evidence in the record related to
the claimant's ability to ambulate, the magistrate finds there was some evidence to support
the commission's finding that claimant's ability to ambulate and his improvement with
continuing physical therapy is inconsistent with an award for the loss of use of the right and
left legs. The commission relied upon the July 8, 2019, IME of Dr. Harris, who opined that
the allowed injuries have not resulted in a total, permanent loss of use of the left and right
legs to such a degree that the affected body parts are useless for all practical purposes;
claimant is ambulatory now; claimant ambulates independently with a walker for short
distances, which certainly can be helpful going from his bed to a bathroom, where he can
No. 19AP-745 20

stand and void; and while claimant does have an incomplete spinal cord injury, he does not
have complete loss of use of his left and right lower extremities. Dr. Harris's IME report
provides some evidence to support the commission's denial of claimant's request for
compensation for loss of use of both legs, and the commission's decision was not an abuse
of discretion.
{¶ 54} Accordingly, it is the magistrate's decision that this court should deny
claimant's petition for writ of mandamus.

/S/ MAGISTRATE
THOMAS W. SCHOLL III

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).