[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Ottinger v. B&B Wrecking & Excavating Inc., Slip Opinion No. 2024-Ohio-1656.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2024-OHIO-1656

THE STATE EX REL. OTTINGER, APPELLANT, v. B&B WRECKING &

EXCAVATING, INC.; INDUSTRIAL COMMISSION OF OHIO, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Ottinger v. B&B Wrecking & Excavating Inc., Slip 

Opinion No. 2024-Ohio-1656.]

Workers’ compensation—R.C. 4123.52—R.C. 4123.57(B)—Industrial Commission 

did not abuse its discretion by exercising its continuing jurisdiction to 

reverse order of Bureau of Workers’ Compensation that awarded injured 

worker scheduled-loss compensation under R.C. 4123.57(B), because 

award was based on mistake of fact and mistake of law, which commission 

identified when exercising its continuing jurisdiction—Documentation from 

independent medical examination conducted after bureau issued its 

erroneous award was properly considered by commission as some evidence 

supporting its denial of injured worker’s motion for scheduled-loss 

compensation—Court of appeals’ judgment affirmed.

(No. 2023-0763—Submitted March 26, 2024—Decided May 2, 2024.)
SUPREME COURT OF OHIO

2

APPEAL from the Court of Appeals for Franklin County,

No. 19AP-745, 2023-Ohio-1758.

__________________

Per Curiam.

{¶ 1} The Bureau of Workers’ Compensation awarded appellant, Billy J. 

Ottinger, scheduled-loss compensation under R.C. 4123.57(B) for the loss of use 

of both legs (“loss-of-use compensation”). Appellee, Industrial Commission of 

Ohio, exercised its continuing jurisdiction and vacated the bureau’s decision; it then

denied Ottinger’s request for loss-of-use compensation. Ottinger sought a writ of 

mandamus in the Tenth District Court of Appeals directing the commission to 

reinstate the bureau’s decision. The court of appeals denied the request for a writ, 

and Ottinger appealed to this court as of right. Because the commission’s order is 

supported by some evidence, we affirm the Tenth District’s judgment.

I. BACKGROUND

{¶ 2} Ottinger was working for B&B Wrecking & Excavating, Inc., on 

June 12, 2018, when he fell from a roof and landed on his legs. At the emergency 

department, Ottinger presented with some sensation in his lower extremities, but he 

was unable to move his legs. He regained some sensation following emergency 

spinal surgery but continued to experience significant weakness and immobility in 

his legs. The bureau allowed Ottinger’s workers’ compensation claim for, among 

other conditions, “incomplete spinal cord injury” and “paraplegia, incomplete.”

{¶ 3} According to medical literature included in the record, “having an 

incomplete [spinal-cord injury] does not imply the ability to walk or even bear 

weight on the lower extremities,” Oleson, Osteoporosis Rehabilitation, Chapter 9: 

Osteoporosis in Spinal Cord Medicine, 137 (2017). The ASIA (American Spinal 

Injury Association) Impairment Scale (“AIS”) sets forth five impairment levels 

following a spinal-cord injury, denoted “A” through “E,” with level “A” 

representing a complete spinal-cord injury from which no sensory or motor function 
January Term, 2024

3

is preserved and level “E” representing the patient’s return to normal sensory and 

motor function. Id. at 134-135.1

{¶ 4} Emergency-department physicians assessed Ottinger’s spinal-cord

injury as “L1 ASIA B,” and when he began physical therapy postoperatively, he 

was unable to ambulate. Within one month, Ottinger’s spinal-cord injury was 

assessed as “L1 AIS C,” and he was able to ambulate up to 35 feet using leg braces 

and a wheeled walker and with the assistance of two people. By December 2018, 

he could stand briefly with leg braces and ambulate with a walker for 200 feet, but 

both legs would buckle, drag, and catch on the ground.

{¶ 5} The following month, in January 2019, Ottinger filed a motion for 

scheduled-loss compensation under R.C. 4123.57(B) for the loss of use of both legs. 

He asked the bureau to “please consider * * * the medical [documentation] on file 

and the fact that his claim is allowed for ‘paraplegia.’ ” A bureau nurse reviewed 

Ottinger’s loss-of-use claim and entered the following note in the bureau’s file on 

January 31, 2019:

RN reviewed [Ottinger’s] C86 request for compensation for 

the functional loss of use of both of his lower extremities. The 

medical evidence and exam findings from Lifeforce, Akron City 

Hospital on 06/12/2018, 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.

1. See also ASIA, International Standards for Neurological Classification of SCI (ISNCSCI) 

Worksheet, https://asia-spinalinjury.org/wp-content/uploads/2019/04/ASIA-ISCOSIntlWorksheet_2019.pdf#page=1 (accessed April 8, 2024) [https://perma.cc/332B-ARYN].
SUPREME COURT OF OHIO

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{¶ 6} On February 4, 2019, the bureau granted Ottinger’s motion for lossof-use compensation. In its decision, the bureau listed all previously allowed 

medical conditions in the claim, including “paraplegia, incomplete.” Based on 

Ottinger’s motion, the emergency-department report from the date of injury, and 

“medical documentation in [the] claim,” the bureau found that Ottinger had 

sustained the loss of both legs due to loss of use. The bureau modified its decision 

two days later, on February 6, by changing only the date of payment for the lossof-use award for the right leg. That decision was not appealed.

{¶ 7} Then, on March 5, 2019, Ottinger requested an award of permanenttotal-disability (“PTD”) compensation under R.C. 4123.58(C)(1), which provides 

that a claimant “shall be compensated” for PTD when the claimant has lost the use 

of both legs. Based on the loss-of-use award issued by the bureau and “medical 

documentation” from the date of injury, a staff hearing officer (“SHO”) for the 

commission issued a tentative order on March 15, awarding Ottinger PTD 

compensation for “the loss of use of both legs resulting from the allowed condition 

of incomplete paraplegia.” The bureau objected to the SHO’s order, citing 

“insufficient medical documentation that the injured worker’s request for statutory 

[PTD compensation] under R.C. 4123.58(C) rises to the level of permanent and 

total loss of use.”

{¶ 8} On March 21, 2019, the bureau filed a motion requesting that the 

commission exercise its continuing jurisdiction “based on a clear mistake of fact, 

law, and clerical error” and that it vacate the bureau’s February 2019 decision 

awarding Ottinger loss-of-use compensation. The bureau explained:

The order was based on [Ottinger’s] motion dated 01/22/2019

requesting loss of use of the right and left leg[s] based on the 

allowance of paraplegia. The claim is only allowed for paraplegia, 

incomplete and not paraplegia. The order was based on a nurse 
January Term, 2024

5

review on 01/31/2019 that found loss of use based on the allowance 

of paraplegia and the medical records on the date of injury. After 

the date of injury, [Ottinger] had emergency surgery and extensive 

physical therapy. He has not been found to have reached maximum 

medical improvement. There are physical therapy records from 

January 10, 2019 that indicate that [Ottinger] has regained the ability 

to walk. The [bureau’s] order should be vacated and the request for 

the loss of use award [for] the right and left leg[s] should be denied 

due to lack of medical evidence to support loss of use.

{¶ 9} On April 27, 2019, following a hearing on the motion to exercise 

continuing jurisdiction, a district hearing officer (“DHO”) found that the bureau 

had properly invoked the commission’s continuing jurisdiction “based upon clear 

mistake of fact, mistake of law and error by [an] inferior tribunal.” The DHO 

vacated the bureau’s February 2019 decision and denied Ottinger’s motion for lossof-use compensation. The DHO found that the bureau’s mistake of fact was basing 

its decision on an incorrect diagnosis of paraplegia when there was evidence that 

Ottinger could stand and ambulate independently with a wheeled walker. The DHO 

found that the bureau’s mistake of law was “that the award of a scheduled loss of 

use of the right and left legs is inappropriate when an Injured Worker demonstrates 

some ability or function of [the] lower extremities.” Ottinger appealed this order

administratively.

2

2. In his merit brief filed in this court, Ottinger challenges the mistake of law as found by the DHO, 

arguing that caselaw supports an award for loss-of-use compensation when the injured worker 

retains some level of residual function. See, e.g., State ex rel. Kroger Co. v. Johnson, 128 Ohio 

St.3d 243, 2011-Ohio-530, 943 N.E.2d 541, ¶ 21-22. However, as noted throughout this opinion, 

the mistake of law as found by the DHO was not the same mistake of law subsequently found by 

the SHO on administrative appeal.
SUPREME COURT OF OHIO

6

{¶ 10} At the commission’s request, an independent medical examination 

(“IME”) was conducted on July 8, 2019, by Michael Harris, M.D., who opined that 

Ottinger’s “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.” (Underlining sic.)

{¶ 11} On August 6, 2019, after a hearing on Ottinger’s administrative 

appeal, another SHO affirmed the DHO’s order vacating the bureau’s February 

2019 order and denying Ottinger’s motion for loss-of-use compensation. The SHO

made independent factual findings, including that “as a matter of fact and law,” the 

bureau’s decision was based on a condition—paraplegia—that “was not, and is not, 

allowed in this claim.” The commission denied Ottinger’s request for 

reconsideration of the SHO’s order.

{¶ 12} Ottinger subsequently filed this mandamus action in the Tenth 

District, alleging that the commission’s exercise of continuing jurisdiction was an 

abuse of discretion. The court of appeals denied the request for a writ of mandamus, 

concluding (1) that the commission found at least one clear mistake of fact that is 

supported by some evidence and (2) that to award Ottinger loss-of-use 

compensation based on that evidence was a clear mistake of law. 2023-Ohio-1758, 

¶ 19-21. We review Ottinger’s appeal of the Tenth District’s judgment as of right.

II. LEGAL ANALYSIS

A. Mandamus Standard

{¶ 13} In a direct appeal of the judgment in a mandamus action that 

originated in a court of appeals, we review the judgment as if the action had been 

originally filed in this court. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 

141, 164, 228 N.E.2d 631 (1967).

{¶ 14} Ottinger is entitled to a writ of mandamus if he shows by clear and 

convincing evidence that he has a clear legal right to the requested relief, that the 

commission has a clear legal duty to provide that relief, and that he has no adequate 
January Term, 2024

7

remedy in the ordinary course of the law. State ex rel. Zarbana Industries, Inc. v. 

Indus. Comm., 166 Ohio St.3d 216, 2021-Ohio-3669, 184 N.E.3d 81, ¶ 10.

{¶ 15} R.C. 4123.512(A) provides for the right to appeal a commission’s 

final order “in any injury or occupational disease case, other than a decision as to 

the extent of disability.” Appellate review is limited to “decisions involving a 

claimant’s right to participate or to continue to participate” in the workers’ 

compensation fund. Afrates v. Lorain, 63 Ohio St.3d 22, 584 N.E.2d 1175 (1992), 

paragraph one of the syllabus, citing former R.C. 4123.519 (renumbered as R.C. 

4123.512, effective Oct. 20, 1993, see Am.Sub.H.B. No. 107, 145 Ohio Laws, Part 

II, 2990, 3153-3156). Because the commission’s decision to exercise its continuing 

jurisdiction in this case does not involve Ottinger’s right to participate in or to 

continue to participate in the fund, it is not appealable under R.C. 4123.512(A) and 

must be challenged by way of a mandamus action. See State ex rel. Belle Tire 

Distribs., Inc. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122, 116 N.E.3d 

102, ¶ 18, citing State ex rel. Saunders v. Metal Container Corp., 52 Ohio St.3d 85, 

86, 556 N.E.2d 168 (1990). But see State ex rel. Carroll v. Galion Assisted Living, 

Ltd., 149 Ohio St.3d 326, 2016-Ohio-8117, 75 N.E.3d 140 (because commission’s 

exercise of continuing jurisdiction prevented claimant from participating in the 

workers’ compensation fund, claimant had an adequate remedy in the ordinary 

course of the law by way of appeal and was therefore not entitled to a writ of 

mandamus).

{¶ 16} A writ of mandamus may lie when there is a legal basis to compel 

the commission to perform its duties under the law or when the commission has 

abused its discretion in carrying out its duties. State ex rel. Gen. Motors Corp. v. 

Indus. Comm., 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9. 

“Where a commission order is adequately explained and based on some evidence, 

even evidence that may be persuasively contradicted by other evidence of record, 

the order will not be disturbed as manifesting an abuse of discretion.” State ex rel. 
SUPREME COURT OF OHIO

8

Mobley v. Indus. Comm., 78 Ohio St.3d 579, 584, 679 N.E.2d 300 (1997). We “will 

not order the commission to vacate its decision if the decision is supported by some 

evidence.” State ex rel. Neitzelt v. Indus. Comm., 160 Ohio St.3d 175, 2020-Ohio1453, 155 N.E.3d 812, ¶ 23.

B. The Commission’s Continuing Jurisdiction

{¶ 17} In his first proposition of law, Ottinger conflates our standard for 

reviewing whether the commission abused its discretion with the commission’s 

standard for exercising its continuing jurisdiction. Ottinger argues that the 

commission abused its discretion by exercising its continuing jurisdiction to vacate

a decision of the bureau that was supported by “some evidence.” However, in 

contrast to our deferential standard of review, the commission has broad authority 

to exercise continuing jurisdiction over workers’ compensation cases.

{¶ 18} Under 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.” However, this broad authority is not without limit. There must be 

evidence of either “ ‘(1) new and changed circumstances, (2) fraud, (3) clear 

mistake of fact, (4) clear mistake of law, or (5) error by [an] inferior tribunal.’ ”

Neitzelt at ¶ 11, quoting State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 

459, 692 N.E.2d 188 (1998). “The commission must both identify and explain the 

prerequisite on which it relies.” State ex rel. Tantarelli v. Decapua Ents., Inc., 156 

Ohio St.3d 258, 2019-Ohio-517, 125 N.E.3d 850, ¶ 16, citing State ex rel. Gobich 

v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, 817 N.E.2d 398, ¶ 15. It 

is insufficient for the commission to cite only the possibility of an unspecified error. 

State ex rel. Foster v. Indus. Comm., 85 Ohio St.3d 320, 322, 707 N.E.2d 1122 

(1999), citing Nicholls at 459.
January Term, 2024

9

C. The Commission’s Order Vacating the Bureau’s Decision

{¶ 19} R.C. 4123.57(B) authorizes compensation to an injured worker for 

the loss of enumerated body parts, including a leg, for a specified number of weeks. 

For purposes of R.C. 4123.57(B), “loss” includes amputation or severance as well 

as the loss of use of the affected body part that is both permanent and total, to the 

same effect and extent as if the body part had been physically removed. State ex 

rel. Walker v. Indus. Comm., 58 Ohio St.2d 402, 403-404, 390 N.E.2d 1190 (1979), 

citing State ex rel. Gassmann v. Indus. Comm., 41 Ohio St.2d 64, 67, 322 N.E.2d 

660 (1975). A claimant must demonstrate with medical evidence a total loss of use 

of the body part “for all practical intents and purposes,” State ex rel. Alcoa Bldg. 

Prods. v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, 810 N.E.2d 946, 

¶ 12. But it is not necessary that the injured body part be of absolutely no use for 

it to have lost its use for all practical purposes. See id. at ¶ 13; see also State ex rel. 

Kroger v. Johnson, 128 Ohio St.3d 243, 2011-Ohio-530, 943 N.E.2d 541, ¶ 22 

(“residual use does not necessarily bar an award” for total loss of use under 

R.C. 4123.57(B)).

{¶ 20} Here, the bureau initially found that Ottinger had sustained the loss 

of both legs under R.C. 4123.57(B) due to loss of use. It based that decision on the 

information contained in Ottinger’s motion for loss-of-use compensation, the 

emergency-department report, and “medical documentation in [the] claim.” Then, 

after Ottinger filed his motion for PTD compensation, the bureau argued to the 

commission that there was a lack of medical evidence to support the award for lossof-use compensation that it had previously issued and that the order granting that 

award should be vacated.

{¶ 21} The SHO determined that the bureau’s decision granting Ottinger 

loss-of-use compensation constituted an error of an inferior tribunal based on a 

mistake of fact and a mistake of law. The SHO found “as a matter of fact and law” 

that the bureau’s decision “was based on a condition which was not, and is not, 
SUPREME COURT OF OHIO

10

allowed in this claim.” Specifically, the SHO found that whereas Ottinger’s claim 

was allowed for “paraplegia, incomplete,” the bureau’s order granting Ottinger an 

award for loss of use “was at least partially based on the incorrect assumption that 

this claim is allowed for paraplegia.” (Capitalization deleted.) The SHO noted 

(1) that Ottinger had incorrectly asserted in his own motion that his claim was 

allowed for “paraplegia” and (2) that a nurse’s review of the case, which was 

documented in the bureau’s file, had also misstated that the allowed condition in 

the claim was “ ‘[p]araplegia.’ ” The SHO concluded:

Specifically, the [bureau] note dated 01/31/2019 indicates 

the following: “The medical evidence and exam findings from 

Lifeforce, Akron City Hospital on 06/12/2018, 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.”

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 [Ottinger] has complete paralysis.

Based on these mistakes of law and fact, the Administrator’s 

order reflects an error of an inferior tribunal.

{¶ 22} We now turn to whether there is some evidence to support the SHO’s 

finding that the bureau’s decision contained a clear mistake of fact or law.

D. Clear Mistake of Fact

{¶ 23} A clear mistake of fact may exist when a clerical error has occurred, 

see, e.g., State ex rel. Weimer v. Indus. Comm., 62 Ohio St.2d 159, 160, 404 N.E.2d 

149 (1980), or when a factual finding is not supported by any evidence in the record, 
January Term, 2024

11

see, e.g., State ex rel. Waste Mgt. of Ohio, Inc. v. Indus. Comm., 171 Ohio St.3d 68, 

2022-Ohio-4581, 215 N.E.3d 512, ¶ 17-19. A disagreement regarding evidentiary 

interpretation, on the other hand, is not a proper basis for invoking the 

commission’s continuing jurisdiction. See State ex rel. Royal v. Indus. Comm., 95 

Ohio St.3d 97, 100, 766 N.E.2d 135 (2002).

{¶ 24} Ottinger argues in his second proposition of law that the commission 

exercised continuing jurisdiction without adequate justification. He contends that 

the SHO identified only the possibility of error and that the SHO mischaracterized 

a disagreement of evidentiary interpretation as a mistake of fact.

{¶ 25} The SHO specified that the bureau erred by basing the award for 

loss-of-use compensation, at least in part, on documents that incorrectly identified 

Ottinger’s diagnosis as “paraplegia.” The SHO explained that this led to the 

incorrect assumption that Ottinger’s claim was allowed for “paraplegia,” which led 

to the incorrect conclusion that Ottinger was completely paralyzed, rather than 

having some use of his legs, even though the medical documentation in the claim, 

beginning with the emergency-department report from the date of injury, includes 

references to and is consistent with the allowed condition of “paraplegia, 

incomplete.” Emergency-department physicians assessed Ottinger’s injury on the 

ASIA Impairment Scale as “L1 ASIA B.” In later physical-therapy notes, 

Ottinger’s injury was documented as “L1 AIS C.” Postsurgical notes explain that 

Ottinger had regained some sensation in his legs as well as limited mobility with 

the assistance of leg braces and wheeled walkers. Moreover, it is undisputed that 

Ottinger was not completely paralyzed as a result of his injury and that when he 

moved for an award of loss-of-use compensation, he was to some extent 

ambulatory.

{¶ 26} The inconsistency between the medical documentation, which 

showed that Ottinger was not completely paralyzed, and the bureau nurse’s 

incorrect description of his allowed condition as “paraplegia” is some evidence that 
SUPREME COURT OF OHIO

12

supports the SHO’s determination that the bureau’s order awarding Ottinger lossof-use compensation was based on a mistake of fact. Contrary to Ottinger’s 

position, the SHO did not identify an evidentiary disagreement but instead 

identified a clear mistake of fact in the bureau nurse’s review notes that was used 

to support the bureau’s February 2019 decision to award Ottinger loss-of-use 

compensation. We therefore conclude that the commission did not abuse its 

discretion by exercising its continuing jurisdiction to vacate the bureau’s order

awarding Ottinger loss-of-use compensation based on a clear mistake of fact. See 

Neitzelt, 160 Ohio St.3d 175, 2020-Ohio-1453, 155 N.E.3d 812, at ¶ 23 (we “will 

not order the commission to vacate its decision if the decision is supported by some 

evidence”).

E. Clear Mistake of Law

{¶ 27} A clear mistake of law exists when it is “of such character that 

remedial action would clearly follow.” State ex rel. Rodriguez v. Indus. Comm., 67 

Ohio St.3d 210, 213, 616 N.E.2d 929 (1993), citing State ex rel. B & C Machine

Co. v. Indus. Comm., 65 Ohio St.3d 538, 542, 605 N.E.2d 372 (1992) (holding that

a clear mistake of law exists when it is clear this court would issue a writ of 

mandamus).

{¶ 28} Ottinger argues that the commission failed to identify a clear mistake 

of law and that any subsequent explanation conjectured by the courts on appellate 

review does not cure the commission’s failure to adequately explain its justification 

for exercising continuing jurisdiction.

{¶ 29} As recognized by the Tenth District, “[a] single mistake of fact or 

mistake of law is all that is needed to justify the commission’s exercise of 

continuing jurisdiction.” 2023-Ohio-1758 at ¶ 19. Therefore, we need not address

the remaining arguments under Ottinger’s second proposition of law.
January Term, 2024

13

F. The Commission’s Decision to Deny Loss-of-Use Compensation

{¶ 30} After the commission properly exercises its continuing jurisdiction 

and vacates an order, the commission is required to reexamine all facets of the 

underlying request for compensation, State ex rel. Sheppard v. Indus. Comm., 139 

Ohio St.3d 223, 2014-Ohio-1904, 11 N.E.3d 231, ¶ 24, and is then free to reach a 

different conclusion regarding any issues of law or fact, Waste Mgt., 171 Ohio St.3d 

68, 2022-Ohio-4581, 215 N.E.3d 512, at ¶ 21. See also R.C. 4123.52(A) (“the 

commission may make such modification or change with respect to former findings 

or orders with respect thereto, as, in its opinion is justified”).

{¶ 31} As stated above, to qualify for loss-of-use compensation under

R.C. 4123.57(B), a claimant must demonstrate with medical evidence a total loss 

of use of a body part for all practical purposes. Alcoa Bldg. Prods., 102 Ohio St.3d 

341, 2004-Ohio-3166, 810 N.E.2d 946, at ¶ 12-14. A loss of use must be both 

permanent and total, to the same effect and extent as if the body part had been 

physically removed. Walker, 58 Ohio St.2d at 403-404, 390 N.E.2d 1190.

{¶ 32} In Ottinger’s final proposition of law, he argues that the commission 

abused its discretion by reexamining his motion for loss-of-use compensation and 

by finding that he had failed to establish a loss of use of both legs under R.C. 

4123.57(B). This argument fails, however, because the commission supported its 

finding with the following evidence:

The physical therapy notes do document progress relative to 

[Ottinger’s] use and function of his lower extremities. At hearing, 

[Ottinger] testifie[d] that he is able to use both feet/legs in order to 

drive a car.[3] Although he must use a walker during his daily 

3. Because the transcript of this hearing is not in the record on appeal, we cannot verify Ottinger’s 

testimony in this regard.
SUPREME COURT OF OHIO

14

activities, and his functioning is limited, he has not established a 

total loss of use.

The Hearing Officer also relies on the report of Michael 

Harris, M.D., who conclude[d] 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. Dr. Harris note[d] that [Ottinger] is ambulatory as he 

ambulates independently with a walker for short distances. Dr. 

Harris note[d] that [Ottinger] 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.

Accordingly, the commission’s denial of Ottinger’s motion for loss-of-use 

compensation is supported by some evidence.

{¶ 33} Ottinger additionally argues that the commission erred in denying

his motion for loss-of-use compensation based on evidence that was not in the 

record—namely, Dr. Harris’s IME report—when the bureau initially granted him 

such an award. However, the existence of a clear mistake of fact allowed the 

commission to reopen the case, vacate the bureau’s order, and reconsider all issues 

de novo. See Waste Mgt., 171 Ohio St.3d 68, 2022-Ohio-4581, 215 N.E.3d 512, at 

¶ 21, citing Sheppard, 139 Ohio St.3d 223, 2014-Ohio-1904, 11 N.E.3d 231, at 

¶ 24. “The commission may, at any point in the processing of an application for 

benefits, require the injured worker to submit to a physical examination or may 

refer a claim for investigation.” Ohio Adm.Code 4121-3-09(A)(5). “Since the 

commission may refer a claimant for examination at any time, the commission may 

consider the report generated therefrom, regardless of when it is obtained.” State 

ex rel. Cordray v. Indus. Comm., 54 Ohio St.3d 99, 101, 561 N.E.2d 917 (1990)

(applying former Ohio Adm.Code 4121-3-09(B)(3), which set forth the same 
January Term, 2024

15

proposition as Ohio Adm.Code 4121-3-09(A)(5)). It was therefore within the 

commission’s discretion to consider Dr. Harris’s report, even though it was not in 

the record when the bureau issued its initial decision. See id.

{¶ 34} Because the SHO’s findings are supported by Dr. Harris’s report, we

conclude that the commission did not abuse its discretion by denying Ottinger’s 

motion for loss-of-use compensation. See Mobley, 78 Ohio St.3d at 584, 679 

N.E.2d 300 (an order based on some evidence will not be disturbed as manifesting 

an abuse of discretion).

III. CONCLUSION

{¶ 35} For the foregoing reasons, we conclude that Ottinger has failed to 

establish a clear legal right to the relief requested. We therefore affirm the Tenth 

District Court of Appeals’ judgment denying Ottinger’s request for a writ of 

mandamus.

Judgment affirmed.

KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, 

and DETERS, JJ., concur.

_________________

Craigg E. Gould, for appellant.

Dave Yost, Attorney General, and Andrew J. Alatis, Assistant Attorney

General, for appellee.

_________________