[Cite as State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm., 2019-Ohio-4948.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

Old Dominion Freight Line, Inc., 

 : 

 Relator, 

 : 

v. No. 18AP-73 

 : 

Industrial Commission of Ohio, (REGULAR CALENDAR) 

 : 

 Respondent. 

 : 

 

D E C I S I O N 

Rendered on December 3, 2019 

 

On brief: Eastman & Smith Ltd., Mark A. Shaw and 

Kimberly S. Kondalski, for relator. 

On brief: [Dave Yost], Attorney General, and Sherry M. 

Phillips, for respondent. 

 

IN MANDAMUS 

ON OBJECTION TO MAGISTRATE'S DECISION 

BRUNNER, J. 

{¶ 1} Relator, Old Dominion Freight Line, Inc. ("Old Dominion"), seeks a writ of 

mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate 

the July 29, 2017 order of its staff hearing officer ("SHO") denying Old Dominion's request 

that the commission exercise its continuing jurisdiction based on new and changed 

circumstances and ordering the commission to find that Old Dominion presented evidence 

of new and changed circumstances to warrant vacating the 2010 commission order that 

granted permanent total disability ("PTD") compensation to the claimant, Robert L. 

Mason. For the following reasons, we deny Old Dominion's request. 
No. 18AP-73 2 

{¶ 2} Old Dominion contends that new and changed circumstances have rendered 

the 2010 order granting Mason PTD compensation "fatally defective" and that the 2010 

order should be vacated. (Feb. 1, 2018 Compl. at ¶ 25-26.) Old Dominion alleges that the 

commission's July 29, 2017 order that denied Old Dominion's motion requesting the 

commission to exercise continuing jurisdiction under R.C. 4123.52 and to vacate the 2010 

order based on new and changed circumstances—namely, the disallowance of a previously 

allowed psychological condition—"is inadequately explained, unsupported by some 

evidence, contrary to the law and facts, and is an abuse of discretion to the extent that 

discretion is authorized." (Compl. at ¶ 27.) 

{¶ 3} In accord with Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of 

Appeals, we referred this matter to a magistrate of this Court who issued on November 2, 

2018 the attached decision, which included findings of fact and conclusions of law. As is 

more fully stated in the decision, the magistrate found that the commission properly 

determined there were no new and changed circumstances sufficient to justify its exercise 

of continuing jurisdiction given the facts of this case. The magistrate thereby concluded 

that the commission had acted within its discretion when it denied Old Dominion's request 

that the commission exercise continuing jurisdiction under R.C. 4123.52 and that the 

record contained some evidence in support of the commission's denial. Thus, the 

magistrate has recommended that we deny Old Dominion's request for a writ of 

mandamus. We agree it is appropriate to do so and explain our reasons. 

{¶ 4} Old Dominion timely filed an objection to the magistrate's decision: 

The Magistrate erred in failing to find that new and changed 

circumstances exist which require the Commission to exercise 

its continuing jurisdiction under R.C. §4123.52, vacate the SHO 

order granting Mason's application for PTD compensation, and 

remand the application to the Commission for further hearing. 

(Nov. 16, 2018 Old Dominion's Obj. at 1.) 

{¶ 5} The commission timely opposed Old Dominion's objection to the appellate 

magistrate's decision, arguing that the decision was based on some evidence, and that the 

magistrate had decided the matter correctly. 

{¶ 6} The issue presented to this Court is whether, under the facts of this matter, 

the commission was required to grant Old Dominion's request to exercise continuing 

jurisdiction. We find that the magistrate, in concluding that the answer to that question is 
No. 18AP-73 3 

no, applied the correct legal standard for determining as a matter of law the commission's 

exercise of continuing jurisdiction. The magistrate cited R.C. 4123.52, which provides that 

"[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." (App'x at ¶ 40.) The magistrate also cited State ex rel. B & C 

Machine Co. v. Indus. Comm., 65 Ohio St.3d 538, 541-42 (1992), a decision rendered by 

the Supreme Court of Ohio wherein it enunciated judicially carved circumstances under 

which continuing jurisdiction may be exercised. 

{¶ 7} The magistrate in her decision then summarized the parties' opposing 

positions as follows: 

The commission does not necessarily argue that new and 

changed circumstances did not exist, acknowledging that case 

law would support a finding that the subsequent allowance or 

disallowance of conditions can have an effect on prior orders. 

Instead, the commission argues that relator did not show new 

and changed circumstances that would warrant the 

commission invoking its continuing jurisdiction. Specifically, 

when the commission originally granted claimant PTD 

compensation, the commission relied on medical reports that 

found claimant independently disabled based separately on the 

physical conditions and the psychological conditions. The 

commission asserts that any change to the status of the 

psychological conditions, including the disallowance of the 

condition of PTSD, did not affect the validity of the original 

decision to award PTD compensation because that decision 

was still properly supported by medical evidence from 

physicians who considered only the allowed physical 

conditions and concluded that based on those allowed physical 

conditions alone, claimant was unable to return to any 

sustained remunerative employment. 

The question is whether the commission abused its discretion 

when it denied the request to invoke its continuing jurisdiction 

and whether the reason given for that decision is supported by 

some evidence. Even if the commission should have found that 

relator presented evidence of new and changed circumstances, 

that claimant's claim was specifically disallowed for the 

psychological condition PTSD, that fact does not support an 

order vacating the award of PTD compensation. As noted in 

the findings of fact, claimant presented medical evidence from 

physicians who considered only his allowed physical 
No. 18AP-73 4 

conditions. Those physicians opined that he was unable to 

return to employment. Claimant also submitted medical 

evidence from physicians who considered only his allowed 

psychological conditions and those doctors likewise found that 

he was unable to return to work. As the commission asserts, 

the commission found claimant's allowed physical conditions 

independently rendered him unable to return to sustained 

remunerative employment. The subsequent disallowance of 

the psychological condition PTSD did not and would not 

change that fact. Inasmuch as no remedial action would clearly 

follow, the magistrate finds that the commission did not abuse 

its discretion here when it refused to exercise its continuing 

jurisdiction over the claimant's award of PTD compensation. 

Based on the forgoing, it is the magistrate's decision that relator 

has not demonstrated the commission abused its discretion 

when it declined to exercise its continuing jurisdiction over the 

award of PTD compensation to claimant, and this court should 

deny relator's request for a writ of mandamus. 

(App'x at ¶ 42-44.) 

{¶ 8} Old Dominion's objection generally presents the same arguments it 

presented in its original brief, which the magistrate addressed in her decision. However, 

Old Dominion also takes exception to the medical reports the magistrate references in the 

decision, stating: 

The fact that the Magistrate searched the record and found 

additional medical reports from "physicians who considered 

only ... [Mason's] physical conditions" and who opined that he 

"was unable to return to employment" does not justify her 

failure to find that new and changed circumstances exist and 

that the exercise of continuing jurisdiction is both necessary 

and appropriate. Rather, it violates the well-settled rule of law 

set forth by the Ohio Supreme Court in Mitchell v. Robbins & 

Meyers, Inc. (1983), 6 Ohio St. 3d, 481, 483-484, * * * that the 

Court will "no longer search the commission's file for 'some 

evidence' to support an order of the commission not otherwise 

specified as a basis for the decision." Any such reports were not 

the basis of the SHO's holding that awarded Mason PTD 

compensation in this claim. Since the Commission did not base 

its PTD holding upon those unspecified reports, they may not 

be relied upon by the Magistrate here as an alternative basis to 

support the PTD order. 

(Old Dominion's Obj. at 6-7.) 
No. 18AP-73 5 

{¶ 9} We disagree with Old Dominion's characterization of the magistrate's review 

of the record. The magistrate references in her decision five medical reports: the 

September 25, 2007 report of Mason's treating physician, Charles B. May, D.O. (App'x at 

¶ 23); the January 28, 2008 report of Richard M. Ward, M.D. (App'x at ¶ 25); the October 7, 

2009 report of William R. Fitz, M.D. (App'x at ¶ 26); the April 1, 2009 report of Lee 

Howard, Ph.D. (App'x at ¶ 27); and the October 21, 2009 report of John M. Malinky, Ph.D. 

(App'x at ¶ 28). The magistrate correctly states in her decision that each of these reports 

was specifically identified in the SHO's 2010 order awarding PTD compensation. See App'x 

at ¶ 29, 35. It is incorrect for Old Dominion to claim that the magistrate "searched the 

record" to locate physician reports not identified in commission orders. (Old Dominion's 

Obj. at 6.) Contrary to Old Dominion's claim, we find that the magistrate properly reviewed 

the medical reports identified by the commission. 

{¶ 10} Additionally, the test for establishing a right to PTD compensation requires 

the claimant to demonstrate that "an allowed condition independently caused the 

disability." State ex rel. Bradley v. Indus. Comm., 77 Ohio St.3d 239, 242 (1997), citing 

State ex rel. LTV Steel Co. v. Indus. Comm., 65 Ohio St.3d 22 (1992). We find that the 

magistrate properly applied this standard when determining whether the alleged new and 

changed circumstances were relevant to the commission's original decision awarding PTD 

compensation to Mason. 

{¶ 11} Finally, we take note of the commission's discussion regarding the timeliness 

of Old Dominion's current action to the PTD compensation award. In its memorandum in 

opposition to Old Dominion's objection, the commission states: 

In reviewing the Magistrate's Decision, it is important to 

remember that continuing jurisdiction with the potential for 

destabilizing prior commission orders is reserved only for 

situations in which circumstances truly have changed since the 

award. State ex rel. Knapp v. Indus. Comm., 134 Ohio St.3d 

134, 2012-Ohio-5379, 890 N.E.2d 987. The commission is also 

limited to a "reasonable period of time" in which to exercise its 

inherent power of continuing jurisdiction. State ex rel. Gatlin 

v. Yellow Freight System, Inc., 18 Ohio St.3d 246, 480 N.E.2d 

487 (1985). In this case, the course of the administrative and 

litigation process was irrevocably altered by Mason's death, 

which obviously impacted the evidence available to defend 

against Old Dominion's appeal of the administratively allowed 

psychological condition, i.e., post-traumatic stress disorder 
No. 18AP-73 6 

("PTSD"). Old Dominion prevailed in its R.C. 4123.512 appeal 

of the allowance of that condition to the Franklin County Court 

of Common Pleas in Case No. 10CV010944 (the "PTSD Case") 

only after the evidence available at trial was stripped of crucial 

testimony – [Mason] was deceased and thus Old Dominion's 

Motion for Summary Judgment was unopposed. (Stipulation 

of Evidence at 814-815, 840 "S. ___"). Old Dominion's 

mandamus action seeks to overturn a disability order issued on 

March 31, 2010, and to reverse nearly a decade of disability 

payments made to Mason. Clearly, Old Dominion's request 

stretches the limits of the commission's "reasonable period of 

time" to exercise its continuing jurisdiction. However, both the 

commission and the Magistrate considered Old Dominion's 

request based on its merits despite the significant delay in the 

proceedings. 

(Commission's Memo. in Opp. at 2-3.) We agree. 

{¶ 12} On review of the magistrate's decision, an independent review of the record, 

and due consideration of Old Dominion's objection, we find the magistrate has properly 

stated the pertinent facts and applied the appropriate law to the facts of this matter. We 

therefore overrule Old Dominion's objection to the magistrate's decision and adopt the 

decision as our own, including the findings of facts and conclusions of law contained in the 

magistrate's decision. Accordingly, we deny the requested writ of mandamus. 

Objection overruled; 

petition for writ of mandamus denied. 

LUPER SCHUSTER and BEATTY BLUNT, JJ., concur. 

 
No. 18AP-73 7 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. : 

Old Dominion Freight Line, Inc., 

 : 

 Relator, 

 : 

v. No. 18AP-73 

 : 

Industrial Commission of Ohio, (REGULAR CALENDAR) 

 : 

 Respondent. 

 : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on November 2, 2018

 

Eastman & Smith LTD, Mark A. Shaw, and Kimberly S. 

Kondalski, for relator. 

Michael DeWine, Attorney General, and Sherry M. Phillips, 

for respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 13} Relator, Old Dominion Freight Line, Inc., has filed this original action 

requesting this court issue a writ of mandamus ordering respondent, Industrial 

Commission of Ohio ("commission"), to vacate its order wherein the commission refused 

to exercise its continuing jurisdiction, and ordering the commission to find that relator 

presented evidence of new and changed circumstances to warrant vacating the order which 

granted permanent total disability ("PTD") compensation to Robert L. Mason ("claimant"). 
No. 18AP-73 8 

Findings of Fact: 

{¶ 14} 1. Claimant sustained a work-related injury on January 18, 2005 when he 

slipped on ice and fell to the ground, landing on his left hip. Initially, claimant was 

diagnosed with left femoral neck fracture and left intertrochanteric femur fracture. 

{¶ 15} 2. On January 21, 2005, claimant underwent surgery consisting of an open 

reduction, internal fixation of his left proximal femur. 

{¶ 16} 3. Shortly thereafter, relator certified claimant's claim for hip fracture and 

left intertrochanteric femur fracture and left femoral neck fracture. 

{¶ 17} 4. Claimant filed his first application for PTD compensation on April 26, 

2006. 

{¶ 18} 5. Following a hearing before a staff hearing officer ("SHO") on February 28, 

2007, claimant's application was denied. The SHO found that claimant retained the 

physical and intellectual abilities to engage in sustained remunerative employment at a 

sedentary level. 

{¶ 19} 6. Following a hearing before a district hearing officer ("DHO") on 

August 22, 2007, claimant's claim was additionally allowed for depressive disorder, left 

short leg syndrome, and lumbar strain. 

{¶ 20} 7. The order of the DHO was affirmed and the commission refused relator's 

further appeal. 

{¶ 21} 8. Following a hearing before a DHO on August 6, 2008, claimant's claim 

was additionally allowed for post-traumatic stress disorder ("PTSD"). 

{¶ 22} 9. The additional allowance of PTSD was affirmed and relator ultimately 

appealed the additional allowance to the common pleas court. 

{¶ 23} 10. Claimant filed his second application for PTD compensation on July 22, 

2009. In support of his application, claimant submitted the September 25, 2007 report of 

his treating physician, Charles B. May, D.O., who opined as follows: 

Based upon the allowed conditions in this claim other than the 

psychiatric condition of depressive disorder for which I have 

not evaluated or treated Mr. Mason, it is my medical opinion 

that Mr. Mason will not be able to return to his previous 

employment as a truck driver on a permanent basis as a direct 

and proximate result of the allowed physical conditions in this 

claim. Furthermore, it is my medical opinion that Mr. Robert 

Mason is, in fact, permanently and totally disabled from any 
No. 18AP-73 9 

form of substantial gainful employment as a direct and 

proximate result of the allowed physical conditions in this 

claim. I have completed the physical capacity form that you 

have enclosed as well as the physician statement of permanent 

and total disability as you have requested. 

{¶ 24} Claimant also submitted the July 22, 2009 report of Dr. May, wherein he 

stated: 

Pursuant to your request, I did have the opportunity to review 

my medical file on Robert Mason for the purpose of disability 

evaluation. In regards to the above-captioned claim, I will 

state at this time that I have taken care of Mr. Mason since 

03/13/2007 in regards to his claim. He was last examined in 

this office on 06/08/2009. Although his claim allowances 

refer to bilateral femoral neck fracture, according to Mr. 

Mason and according to my examinations and review of 

records, only the left side was fractured. I have only evaluated 

the left hip and will not be referring to any problem or 

problems with the right hip over if they do exist in regards to 

my determination or recommendation for disability. 

Also, as I have stated above, Mr. Mason has a psychological 

allowance in this claim, i.e. depressive disorder and I am not 

considering any impairment or disability that [] allowance 

may cause. I refer you to my previous medical reports which 

summarize my evaluation and treatments of Mr. Mason. 

Based upon my past and current evaluations of Mr. Mason, it 

is my medical opinion that Robert L. Mason is unable to 

return to his previous employment as a truck driver on a 

permanent basis as a direct and proximate result of the 

allowed physical condition in this claim. Furthermore, it is my 

medical opinion that Robert L. Mason is permanently and 

totally disabled from any form of substantial gainful 

employment as a direct and proximate result of the allowed 

physical conditions in this claim. I have completed a Physical 

Functional Capacity Assessment Form that you enclosed and 

I have completed a Statement of Physician that you have 

enclosed. 

{¶ 25} 11. The record also contains the January 28, 2008 report of Richard M. 

Ward, M.D., who concluded that claimant was unable to return to work, stating: 

I saw Robert Mason in the office today at your request for the 

purpose of a disability evaluation. He is now 68 years old. 
No. 18AP-73 10 

By history, on 1/18/05 he was working as a truck driver and 

slipped and fell on some ice in the truck yard and fractured his 

left hip. He had to have a surgical procedure done that did not 

help him. He has never been able to return to work. He 

continues to have severe pain in his left hip and this pain 

requires the full time use of a four prong cane to assist 

ambulation. He also has severe pain in his lower back with 

muscle spasms and stiffness. His low back symptoms are 

aggravated by bending, lifting and twisting. He has a difficult 

time with sitting. He is followed by a doctor with medication. 

He denies ever having had problems with his left hip or lower 

back prior to the incident that occurred as described on 

1/18/05. 

He is 6'3" tall, weighs 290lbs and is left handed. On 

examination he walks in a forward crouch using a cane in his 

right hand. He has a marked limp. When he gets up from a 

seated position he has to push himself up because of the pain 

in his lower back. He has involuntary muscle spasms with 

marked loss of lumbar spine motion. He lacks 10 degrees of 

normal extension, he has 20 degrees of forward flexion, 10 

degrees of right lateral tilt and 10 degrees of left lateral tilt. He 

has a surgical scar from the surgery to treat the fractured left 

hip. He has essentially no hip motion and has severe pain. 

As a result of the history and my examination, I believe he was 

injured as described on 1/18/05. As a direct result of that 

injury he has the allowances of hip fracture, left 

intertrochanteric femur fracture, left femoral neck fracture, 

depressive disorder, left short leg syndrome and lumbar 

strain. Considering only the physical allowances and not the 

psychiatric allowance, the significance is that the surgical 

treatment of his fractured left hip was a failure and he 

continues to have severe pain in the left hip with almost no 

hip motion and he requires the full time use of a four prong 

cane to assist ambulation. He has pain across his lower back 

with involuntary muscle spasms and loss of back motion. 

Taking into account the specific physical allowances from the 

injury on 1/18/05 and my physical findings, it is my opinion 

based upon a reasonable medical probability that as a direct 

result of the physical allowances from the injury on 1/18/05 

he is not able to return to substantial gainful employment. No 

combination of sit-stand-walk option that would add up to 

an 8 hour work day for him. He also has severe postural 

limitations. He cannot use his legs to operate foot controls. He 

has severe lifting and carrying limitations and he has to use a 

cane at all times to assist in ambulation. I did fill out a physical 
No. 18AP-73 11 

capacity evaluation to the best of my ability, again, taking into 

account the specific physical allowances from the injury that 

occurred on 1/18/05. To reiterate based upon all of the above, 

it is my opinion that as a direct result of the physical 

allowances from the injury that occurred on 1/18/05, he is not 

capable of returning to substantial gainful employment and 

should for this reason be granted permanent total disability. 

This opinion is certainly based upon a reasonable medical 

probability. 

{¶ 26} 12. An independent medical examination was performed by William R. Fitz, 

M.D. In his October 7, 2009 report, Dr. Fitz identified the medical records which he 

reviewed, provided his physical findings on examination, concluded that claimant had 

reached maximum medical improvement ("MMI") for the diagnoses of hip fracture, left 

intertrochanteric femur fracture, left femoral neck fracture, left short leg syndrome, and 

lumbar strain. Dr. Fitz opined that claimant had a 37 percent whole body impairment and 

that he was incapable of working. Dr. Fitz specifically indicated that he was not provided 

an impairment rating for the allowed conditions of depressive disorder or PTSD. 

{¶ 27} 13. Claimant also submitted evidence that his allowed psychological 

conditions rendered him incapable of working. Specifically, claimant submitted the April 1, 

2008 report of Lee Howard, Ph.D., who opined that claimant was permanently and totally 

disabled as a result of his depressive disorder. 

{¶ 28} An independent medical evaluation was performed by John M. Malinky, 

Ph.D., who issued a report dated October 21, 2009. Dr. Malinky concluded: "Based solely 

on impairment resulting from the allowed mental and behavioral condition(s) in this claim 

within my specialty, and with no consideration of the Injured Worker's age, education, or 

work training," claimant was incapable of working. 

{¶ 29} 14. Claimant's application was heard before an SHO on March 16, 2010 and 

was granted. The SHO order provides: 

After full consideration of the issue it is the order of the Staff 

Hearing Officer that the Injured Worker's IC-2 Application for 

Permanent Total Disability Compensation is granted. 

Permanent total disability compensation is awarded from 

09/25/2007 (less any compensation that previously may have 

been awarded over the same period), and to continue without 

suspension unless future facts or circumstances should 
No. 18AP-73 12 

warrant the stopping of the ward. Such payments are to be 

made in accordance with R.C. 4123.58(A). 

Permanent and total disability compensation is awarded from 

09/25/2007 for the reason that this is the date of Dr. May's 

report supporting the award. 

It is the finding of the Staff Hearing Officer that the Injured 

Worker is permanently and totally disabled as the result of the 

medical effects of his allowed physical and psychological 

injuries. The Injured Worker has been prevented from 

returning to any form of sustained remunerative employment 

as a consequence of each of these two categories of medical 

condition. Such a finding mandates an award of permanent 

total disability compensation without further consideration of 

the "[State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 

167 (1987)]" factors. In reaching this conclusion, the Staff 

Hearing Officer relies upon the independent medical 

examinations and evaluations performed at the direct of the 

Industrial Commission: William R. Fitz, M.D., who examined 

with respects to the allowed physical injuries, and John M. 

Malinky, Ph.D., who examined with respects to the allowed 

psychological conditions. In evaluating the credibility of these 

reports, the Staff Hearing Officer particularly notes the 

01/28/2008 report of Dr. Ward, the two reports of Dr. May of 

09/25/2007 and 09/26/2007, and the 07/07/2009 report of 

Dr. Howard. The Staff Hearing Officer further particularly 

notes that the Injured Worker has a claim which is allowed for 

a very serious left hip fracture, and also for psychological 

conditions, notably post traumatic stress disorder, together 

with some physical conditions related to the allowed hip 

fracture. 

The Staff Hearing Officer has considered the prior denial of a 

permanent and total application in early 2007, the medical 

submitted on behalf of the Employer, and the Employer's 

arguments with respect to the sufficiency of the evidence 

submitted in support of the application. Specifically, the Staff 

Hearing Officer has considered the Employer's argument that 

the Injured Worker suffers from multiple unallowed medical 

conditions which have been improperly evaluated by the 

medical evidence in support of the application, and has 

further considered the Employer's arguments with respect to 

alleged inconsistency in these reports. 

It is plain that the Injured Worker does suffer from medical 

conditions over and above his allowed injuries. In particular, 
No. 18AP-73 13 

the Injured Worker has multi-level spondylosis in the lower 

back, which may impact the Injured Worker's loss of function 

in the lower back, when consideration is being properly given 

to his allowed lumbar strain. In light of the fact that the 

medical professionals specifically state that they are 

considering only allowed conditions, there is no direct 

evidence of any improper consideration of these unallowed 

conditions affecting the same body part. 

The Employer further argues that the reports of Drs. Howard 

and May improperly consider the Injured Worker's age, 

education, work experience, and similar disability factors in 

reaching their conclusions. Reading the reports in context, 

they are plainly stating that the Injured Worker has lost the 

ability to engage in any form of sustained remunerative 

employment. Further, an error in one of Dr. May's reports 

which appears to state he is considering a right hip fracture, is 

plainly merely a clerical error as there is no evidence the 

Injured Worker ever had a right hip fracture. Finally, the 

argument that the physical evidence supports the conclusion 

that the Injured Worker could engage, on a physical basis, in 

part-time sedentary work is not supported by the reports 

cited. This is an inference drawn argumentatively, but not 

stated by the reports under consideration. 

In light of the fact that the independent examinations both 

conclude that the Injured Worker is unable to engage in 

sustained remunerative employment, solely as the result of 

the allowed conditions, the weight of the evidence strongly 

supports the conclusion that the physical and psychological 

conditions taken together do so. Consequently, an award of 

permanent total disability compensation is made. 

{¶ 30} 15. As the SHO noted, PTD compensation was awarded beginning 

September 25, 2007, the date of Dr. May's report supporting the award. Relator's request 

for reconsideration was denied by order of the commission mailed May 20, 2010. 

{¶ 31} 16. Relator filed a mandamus action which this court denied. 

{¶ 32} 17. In the meantime, relator's appeal of the allowance of PTSD proceeded 

slowly because claimant was in poor health. 

{¶ 33} 18. Following claimant's death due to non-occupational health conditions, 

the trial court granted relator's motion for summary judgment and found that claimant was 
No. 18AP-73 14 

not entitled to participate in the Ohio Workers' Compensation Fund for the psychological 

condition of PTSD. 

{¶ 34} 19. After the condition PTSD was disallowed, relator filed a motion asking 

the commission to invoke its continuing jurisdiction to vacate the SHO order which granted 

claimant's application for PTD compensation based on new and changed circumstances. 

{¶ 35} 20. Following the hearing before an SHO on July 7, 2017, the commission 

found there was no legal basis on which to vacate the SHO order which awarded PTD 

compensation commencing September 25, 2007 finding that the hearing officer who 

granted PTD compensation had found that the allowed physical conditions were 

independently disabling. Specifically, the SHO order provides: 

Permanent total disability compensation was granted based 

on both the allowed physical conditions and the allowed 

psychological conditions. 

Counsel for the Employer has argued that continuing 

jurisdiction is properly invoked under R.C. 4123.52 on the 

basis of new and changed circumstances. Specifically, counsel 

refers to the finding that, following issuance of the 

03/16/2010 permanent total disability award order, the 

Franklin County Court of Common Pleas issued an order 

disallowing the claim for "post traumatic stress disorder." The 

other psychological allowance of "depressive disorder, 

however, remained part of the claim as it is today. Citing the 

case of State ex rel. Fields v. Indus. Comm. (1993), 66 Ohio 

St.3d 339, which held that the Industrial Commission is not 

permitted to "base an award of permanent total disability on 

non-allowed medical conditions, in whole or in part," counsel 

argues that all permanent total disability compensation 

awarded since 09/25/2007 is properly vacated based upon 

new and changed circumstances. 

The Staff Hearing Officer is not persuaded by the Employer's 

argument. 

It is clear from the face of the permanent total disability order 

of 03/16/2010 that the Staff Hearing Officer found that the 

allowed physical conditions were independently disabling. 

The 03/16/2010 Staff Hearing Officer order stated: "The 

Injured Worker has been prevented from returning to any 

form of sustained remunerative employment as a 

consequence of each of these two categories of medical 

condition." (Emphasis added.) The Staff Hearing Officer 
No. 18AP-73 15 

order relied upon the reports from William R. Fitz, M.D. 

(dated 10/07/2009) and Charles May, D.O. (dated 

09/25/2007 and 09/26/2007) in finding that the allowed 

physical conditions were permanently and totally disabling. 

As such, the Staff Hearing Officer concludes that the 

subsequent denial of a previously allowed psychological 

condition will not affect the award of permanent total 

disability compensation because of the independently 

disabling nature of the [] allowed physical conditions. 

(Emphasis sic.) 

{¶ 36} 21. Relator's request for reconsideration was denied by order of the 

commission mailed August 31, 2017. 

{¶ 37} 22. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 38} For the reasons that follow, it is this magistrate's decision that this court 

should deny relator's request for a writ of mandamus. 

{¶ 39} 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). 

{¶ 40} 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 judiciallycarved 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. 
No. 18AP-73 16 

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. 

Id. at 541.

{¶ 41} Relator begins its argument by asserting that the disallowance of claimant's 

workers' compensation claim for the psychological condition of PTSD clearly amounted to 

new and changed circumstances. Relator asserts the commission was required to find new 

and changed circumstances existed and then, having found so, vacate the prior SHO order 

awarding PTD compensation, and hold a new hearing to consider whether or not claimant 

was entitled to an award of PTD compensation. 

{¶ 42} The commission does not necessarily argue that new and changed 

circumstances did not exist, acknowledging that case law would support a finding that the 

subsequent allowance or disallowance of conditions can have an effect on prior orders. 

Instead, the commission argues that relator did not show new and changed circumstances 

that would warrant the commission invoking its continuing jurisdiction. Specifically, when 

the commission originally granted claimant PTD compensation, the commission relied on 

medical reports that found claimant independently disabled based separately on the 

physical conditions and the psychological conditions. The commission asserts that any 

change to the status of the psychological conditions, including the disallowance of the 

condition of PTSD, did not affect the validity of the original decision to award PTD 

compensation because that decision was still properly supported by medical evidence from 
No. 18AP-73 17 

physicians who considered only the allowed physical conditions and concluded that based 

on those allowed physical conditions alone, claimant was unable to return to any sustained 

remunerative employment. 

{¶ 43} The question is whether the commission abused its discretion when it denied 

the request to invoke its continuing jurisdiction and whether the reason given for that 

decision is supported by some evidence. Even if the commission should have found that 

relator presented evidence of new and changed circumstances, that claimant's claim was 

specifically disallowed for the psychological condition PTSD, that fact does not support an 

order vacating the award of PTD compensation. As noted in the findings of fact, claimant 

presented medical evidence from physicians who considered only his allowed physical 

conditions. Those physicians opined that he was unable to return to employment. 

Claimant also submitted medical evidence from physicians who considered only his 

allowed psychological conditions and those doctors likewise found that he was unable to 

return to work. As the commission asserts, the commission found claimant's allowed 

physical conditions independently rendered him unable to return to sustained 

remunerative employment. The subsequent disallowance of the psychological condition 

PTSD did not and would not change that fact. Inasmuch as no remedial action would 

clearly follow, the magistrate finds that the commission did not abuse its discretion here 

when it refused to exercise its continuing jurisdiction over the claimant's award of PTD 

compensation. 

{¶ 44} Based on the forgoing, it is the magistrate's decision that relator has not 

demonstrated the commission abused its discretion when it declined to exercise its 

continuing jurisdiction over the award of PTD compensation to claimant, and this court 

should deny relator's request for a writ of mandamus. 

 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

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 
No. 18AP-73 18 

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).