[Cite as State ex rel. Cottrell v. Indus. Comm., 2019-Ohio-2832.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Michael C. Cottrell, : 

(Through Dependent, Brooks J. Cottrell), 

 : 

 Relator, 

 : 

v. No. 18AP-66 

 : 

Industrial Commission of Ohio et al., (REGULAR CALENDAR) 

 : 

 Respondents. 

 : 

 

 

D E C I S I O N 

Rendered on July 11, 2019 

 

On brief: Steven G. Thomakos, for relator. Argued: 

Steven G. Thomakos.

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

Phillips, for respondent Industrial Commission of Ohio. 

Argued: Sherry M. Phillips.

On brief: Dave Yost, Attorney General, and Patsy A. 

Thomas, for respondent Ohio Bureau of Workers' 

Compensation. Argued: Natalie J. Tackett.

 

IN MANDAMUS 

ON RESPONDENTS' MOTIONS TO DISMISS AND 

ON OBJECTIONS TO MAGISTRATE'S DECISION 

BEATTY BLUNT, J. 

{¶ 1} Relator, Brooks J. Cottrell, filed this original action requesting a writ of 

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

that a C-86 motion, filed May 4, 2015, was timely filed. Relator further requests that we 
2 

No. 18AP-66 

issue a writ ordering the commission to process the motion and award him "total loss of 

use" compensation. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Because this matter is before the court on two motions to dismiss, we 

consider the following facts, as plead in the complaint, as true. 

{¶ 3} On May 12, 2014, relator's father ("decedent") was involved in a workplace 

accident when he was welding on top of an oil field storage tank and the tank exploded. He 

died shortly thereafter. A physician opined that decedent suffered a pre-mortal injury that 

resulted in the total loss of use of both of his legs. 

{¶ 4} Relator was decedent's only biological child. He was three years old at the 

time of decedent's death. Decedent and relator's mother were not married, and relator has 

always been in his mother's custody. 

{¶ 5} On July 3, 2014, the Ohio Bureau of Workers' Compensation ("Ohio BWC") 

declared relator a dependent of decedent and allowed his claim for death benefits. 

{¶ 6} On April 17, 2015, the Ohio BWC declared decedent's mother, relator's 

grandmother ("grandmother"), a prospective dependent. 

{¶ 7} On May 4, 2015, grandmother filed a C-86 motion requesting that the Ohio 

BWC "allow the claim for loss of use of bilateral lower extremities and pay loss of use 

award." (Compl. at ¶ 9.) 

{¶ 8} On June 30, 2015, the district hearing officer ("DHO") determined that 

grandmother was not a dependent pursuant to R.C. 4123.59. 

{¶ 9} The staff hearing officer ("SHO"), by decision dated August 12, 2015, agreed 

that relator's grandmother failed to prove that she was decedent's dependent. 

{¶ 10} On January 9, 2016, the commission dismissed grandmother's May 4, 2015 

motion. 

{¶ 11} On May 2, 2016, relator, through counsel, filed his own C-86 motion and 

requested that the commission exercise its continuing jurisdiction and reconsider its 

dismissal of grandmother's May 4, 2015 motion. The commission dismissed this motion, 

finding that it lacked jurisdiction to re-address grandmother's original motion. 

{¶ 12} On May 12, 2017, relator filed a motion requesting that the commission 

exercise its continuing jurisdiction and reconsider grandmother's May 4, 2015 C-86 motion 
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No. 18AP-66 

as it applied to relator. Relator argued that he should be allowed to be substituted in for 

grandmother, who filed a timely motion when she was considered a prospective dependent. 

{¶ 13} On October 2, 2017, the SHO denied relator's request for reconsideration. 

The SHO determined that there is no legal authority to allow relator to substitute in for 

grandmother after her motion was dismissed. The SHO also found that relator failed to 

present persuasive evidence to support his request that the commission exercise its 

continuing jurisdiction. 

{¶ 14} Relator filed the instant mandamus action. In addition to requesting that we 

issue a writ, as described above, relator avers in his complaint that "new and changed 

circumstances" allow the commission to exercise its continuing jurisdiction, namely 

circumstances surrounding grandmother's status as a prospective dependent. (Compl. at 

¶ 16.) 

{¶ 15} Both the commission and the Ohio BWC filed motions to dismiss, pursuant 

to Civ.R. 12(B)(6), arguing that relator cannot show (1) a clear legal right to the loss of use 

award, (2) a clear legal duty for the BWC to grant such an award, and (3) a lack of adequate 

remedy in the ordinary course of law. 

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

this matter was referred to a magistrate who considered the motions to dismiss. The 

magistrate issued a decision, appended hereto, recommending that the complaint be 

dismissed because relator did not file a timely C-86 motion and cannot be substituted in 

place of grandmother for the purposes of her timely C-86 motion. 

{¶ 17} Relator has filed objections to the magistrate's decision. Relator contends 

that the language in R.C. 4123.60, which allows the commission to consider an application 

for loss of use compensation "for the benefit of all the dependents," allows grandmother's 

motion to apply to him. Relator further argues that the relevant statute is silent regarding 

how such an application must be made when there is a minor dependent and a "prospective 

dependent." Accordingly, relator contends that the Ohio BWC administrator must consider 

grandmother's timely motion as to any proper dependents even though the commission 

ultimately determined that she is not a dependent. 

{¶ 18} We now independently review the record and the magistrate's decision to 

determine whether the magistrate "appropriately applied the law." Civ.R. 53(D)(4)(d). 
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No. 18AP-66 

II. LAW & ANALYSIS 

{¶ 19} "A motion to dismiss for failure to state a claim upon which relief can be 

granted is procedural and tests the sufficiency of the complaint." State ex rel. Hanson v. 

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992); see also State ex rel. Belle 

Tire Distribs., Inc. v. Indus. Comm., 154 Ohio St.3d 488, 490, 2018-Ohio-2122, ¶ 17. A 

court may grant a motion to dismiss only when the complaint, when construed in the light 

most favorable to relator and presuming all the factual allegations in the complaint are true, 

demonstrates that the relator can prove no set of facts entitling him to relief. Belle Tire 

Distribs. at ¶ 17, citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).

{¶ 20} "Pursuant to R.C. 4123.52, the commission has continuing jurisdiction over 

a case and may modify or change its former findings or orders if the commission finds that 

a change is justified." Belle Tire Distribs. at ¶ 7. But "[c]ontinuing jurisdiction is not 

unlimited; a party seeking to invoke the commission's continuing jurisdiction must show 

(1) new and changed circumstances, (2) fraud, (3) a clear mistake of fact or law, or (4) an 

error by an inferior tribunal." Id., citing State ex rel. Nicholls v. Indus. Comm., 81 Ohio 

St.3d 454, 459 (1998). 

{¶ 21} "The commission's decision to exercise continuing jurisdiction is reviewable 

in mandamus, under an abuse-of-discretion standard." Id. at ¶ 18, citing State ex rel. 

Saunders v. Metal Container Corp., 52 Ohio St.3d 85 (1990). 

{¶ 22} Relator asserts in his complaint that new and changed circumstances, namely 

grandmother's initial status as a prospective dependent, provides a basis for the 

commission to exercise continuing jurisdiction here. But relator did not show that there 

has been any change in circumstances. When relator's grandmother filed the motion, she 

was deemed a prospective dependent. When the motion was denied, the commission 

determined that she was not a dependent. Relator had not filed his own motion yet, so the 

commission's determination had no impact on relator's motion. Grandmother's 

classification as a prospective dependent—and the later determination that she was not a 

dependent—had no impact on whether relator was a dependent. There was nothing to stop 

relator from filing his own C-86 motion; it was not dependent upon grandmother's motion. 

Grandmother's motion did not purport to be filed on relator's behalf. Nothing has 

happened since the denial of either of the parties' original motions that affects the 
5 

No. 18AP-66 

classification of either relator or grandmother as a dependent. Accordingly, the 

commission did not abuse its discretion in failing to exercise continuing jurisdiction due to 

"new and changed circumstances" because there were no new and changed circumstances. 

See R.C. 4123.52. 

{¶ 23} The majority of the parties' briefs on the motions to dismiss and on the 

objections to the magistrate's decision focus on the commission's legal determinations. A 

clear mistake in the law would also provide a basis for the commission to exercise 

continuing jurisdiction. See R.C. 4123.52. 

{¶ 24} R.C. 4123.60 addresses when a dependent is eligible to assert a decedent's 

rights under the workers' compensation statutes after the decedent's death. It provides: 

Benefits in case of death shall be paid to such one or more of 

the dependents of the decedent, for the benefit of all the 

dependents as the administrator of workers' compensation 

determines. The administrator may apportion the benefits 

among the dependents in such manner as he deems just and 

equitable. Payment to a dependent subsequent in right may be 

made, if the administrator deems it proper, and operates to 

discharge all other claims therefor. The dependents or person 

to whom benefits are paid shall apply the same to the use of the 

several beneficiaries thereof according to their respective 

claims upon the decedent for support, in compliance with the 

finding and direction of the administrator. 

In all cases of death where the dependents are a surviving 

spouse and one or more children, it is sufficient for the 

surviving spouse to apply to the administrator on behalf of the 

spouse and minor children. In cases where all the dependents 

are minors, a guardian or next friend of such minor 

dependents shall apply.

* * * If the decedent would have been lawfully entitled to have 

applied for an award at the time of his death the administrator 

may, after satisfactory proof to warrant an award and payment, 

award and pay an amount, not exceeding the compensation 

which the decedent might have received, but for his death, for 

the period prior to the date of his death, to such of the 

dependents of the decedent, or for services rendered on 

account of the last illness or death of such decedent, as the 

administrator determines in accordance with the 

circumstances in each such case, but such payments may be 

made only in cases in which application for compensation was 
6 

No. 18AP-66 

made in the manner required by this chapter, during the 

lifetime of such injured or disabled person, or within one year 

after the death of such injured or disabled person.

(Emphasis added.) R.C. 4123.60. Under this statute, the decedent's dependent was 

required to apply for compensation for the decedent's loss of use claim within one year of 

the decedent's death. 

{¶ 25} Relator requests that this court issue a writ ordering the commission to find 

that the May 4, 2015 C-86 motion be deemed timely filed. But there is no dispute that the 

May 4, 2015 motion was filed within the one-year deadline in R.C. 4123.60. The 

commission has never found that motion to be untimely. Nonetheless, it was relator's 

grandmother who filed the May 4, 2015 motion. Relator did not file his motion until May 

2, 2016. Relator's motion was nearly one year too late to meet the statutory deadline. He 

waited over ten months after the DHO determined that grandmother was not a dependent; 

approximately nine months after the SHO agreed with that determination; and nearly four 

months after the commission dismissed grandmother's motion. 

{¶ 26} Knowing that his own motion was untimely, relator seeks to be substituted in 

the place of grandmother. Relator requests that we order the commission to process 

grandmother's motion, apply it to him, and award him loss of use benefits. 

{¶ 27} There is no provision in law that allows the commission to do what relator 

requests. R.C. 4123.60 provides the circumstances under which a decedent's dependents 

can seek benefits to which the decedent would be entitled. "In cases where all the 

dependents are minors, a guardian or next friend of such minor dependents shall apply." 

R.C. 4123.60. Although relator contends that this provision does not apply to him because 

grandmother was temporarily considered a prospective dependent, the designation of 

"prospective dependent" does not confer any legal rights upon grandmother under R.C. 

4123.60. Plainly, relator, a minor, is decedent's only dependent. Therefore, his guardian 

or next friend was required to apply for loss of use benefits on his behalf within one year 

after decedent's death. There has never been any argument that relator's grandmother has 

even been relator's guardian or next friend. 

{¶ 28} Relator contends that R.C. 4123.60 allows the commission to consider an 

application for loss of use compensation "for the benefit of all the dependents," such that 
7 

No. 18AP-66 

grandmother's motion can apply to him. That provision, however, addresses how and to 

whom benefits will be "paid." It presumes and is limited by the provision that specifies who 

can apply for benefits. R.C. 4123.60 also provides that benefit "payments may be made only 

in cases in which application for compensation was made in the manner required by this 

chapter." As stated, application must have been made by relator's guardian within one year 

of decedent's death under the statute. That did not happen. Nothing in the statute or in 

the language relator cites allows the commission to subvert the statutory requirements in 

order to consider grandmother's dismissed motion as filed for relator's benefit. Because 

the commission did not make a clear mistake of law, it did not abuse its discretion in failing 

to exercise its continuing jurisdiction to reconsider grandmother's May 4, 2015 C-86 

motion. 

III. CONCLUSION 

{¶ 29} Because the statute does not allow the commission to provide the relief 

relator requests, we overrule relator's objections to the magistrate's decision. We adopt the 

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

contained in it. Relator's complaint is dismissed. 

Objections overruled; case dismissed. 

KLATT, P.J., and SADLER, J., concur. 

 

 
8 

No. 18AP-66 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Michael C. Cottrell, : 

 : 

 Relator, 

 : 

v. No. 18AP-66 

 : 

Industrial Commission of Ohio et al., (REGULAR CALENDAR) 

 : 

 Respondents. 

 : 

 

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

Rendered on December 21, 2018

 

Steven G. Thomakos, for relator. 

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

for respondent Industrial Commission of Ohio. 

Michael DeWine, Attorney General, and Patsy A. Thomas, for 

respondent Ohio Bureau of Workers' Compensation. 

 

IN MANDAMUS 

ON RESPONDENTS' MOTIONS TO DISMISS 

{¶ 30} Relator, Brooks J. Cottrell, has filed this original action requesting this court 

issue a writ of mandamus ordering respondent Industrial Commission of Ohio 
9 

No. 18AP-66 

("commission") to find that the loss of use application he filed following the death of his 

father, Michael C. Cottrell ("decedent"), was timely filed, and ordering the commission to 

process the application. 

Findings of Fact: 

{¶ 31} 1. The decedent was an employee of Sutton Pump and Symbol Supply, Inc. 

on May 12, 2014 when he was injured in an explosion. Decedent died a few hours later. 

{¶ 32} 2. On July 3, 2014, a death claim was allowed with decedent's son, relator 

herein, as the sole dependent. 

{¶ 33} 3. On April 17, 2015, the administrator for the Ohio Bureau of Workers' 

Compensation ("BWC") named decedent's mother, Maretta Cottrell ("Maretta") as a 

prospective dependent. 

{¶ 34} 4. On May 4, 2015, Maretta filed a C-86 motion requesting a loss of use 

award and submitted medical evidence indicating that decedent suffered a total loss of 

use of his bilateral lower extremities before he died. 

{¶ 35} 5. Following a hearing before a district hearing officer ("DHO") on June 30, 

2015, it was determined that Maretta was not a dependent, either wholly, partially, or 

prospectively. This order was administratively affirmed. 

{¶ 36} 6. Because Maretta was found not to be a dependent, an exparte order 

issued dismissing her C-86 motion regarding a scheduled loss award on January 9, 2016. 

{¶ 37} 7. On May 2, 2016, relator, through counsel, filed a C-86 motion requesting 

the commission exercise its continuing jurisdiction to reconsider the loss of use motion 

which had been filed by Maretta and dismissed after it was determined that she was not 

a dependent. 

{¶ 38} 8. Relator also filed a motion asking the commission to re-activate the loss 

of use motion filed by Maretta. 

{¶ 39} 9. A hearing was held before a staff hearing officer ("SHO") on October 2, 

2017. The SHO determined that relator could not be substituted for Maretta because her 

motion had already been dismissed. Further, the commission denied relator's request to 

exercise its continuing jurisdiction finding that relator failed to present sufficient 

persuasive evidence to support the request. Specifically, the SHO order provides: 
10 

No. 18AP-66 

Counsel for Brooks Cottrell has now filed another motion on 

05/12/2017 requesting that the Industrial Commission 

reconsider its 04/28/2018 ex parte order. At hearing, the 

decedent's representative argued that the sole surviving 

dependent should be substituted as the moving party under 

the 05/04/2015 C-86 motion filed by the decedent's mother. 

The theory advanced by counsel is that the decedent's mother 

was considered to be a dependent at the time she filed the 

motion for a scheduled loss award. Although she was 

subsequently found not to be a dependent and therefore not a 

party to the claim, her filing of the motion should allow the 

remaining sole dependent to stand in her place and pursue a 

scheduled loss award under the timely motion filed by the 

decedent's mother. 

However, no statute, case law, or other legal authority has 

been cited to allow substitution of Brooks Cottrell for Maretta 

Cottrell under a motion that has already been dismissed by 

the Industrial Commission. In addition, the District Hearing 

Officer finds that Brooks Cottrell had already been found to be 

a dependent in this claim long before the expiration of the 

statute of limitations for an accrued scheduled loss award. No 

explanation has been offered regarding why Brooks Cottrell 

could not have filed his own motion for a scheduled loss award 

at any point prior to the expiration of the statute of 

limitations. The District Hearing Officer find that Brooks 

Cottrell could have filed such a motion on his own 

independent of the motion filed by the decedent's mother, 

whose alleged status as a dependent was being disputed. 

As the sole remaining dependent, Brooks Cottrell, has not 

presented sufficient persuasive evidence in support of his 

request that the Industrial Commission exercise its 

continuing jurisdiction under Ohio Revised Code 4123.52, the 

Staff Hearing Officer orders that the request to reconsider the 

District Hearing Officer's ex parte order issued 04/28/2017 is 

denied. 

All evidence was reviewed and considered. 

{¶ 40} 10. Thereafter, relator filed this mandamus action. 

{¶ 41} 11. Respondents, the commission and BWC, filed motions to dismiss and 

relator has filed a memorandum opposing the same. 
11 

No. 18AP-66 

{¶ 42} 12. The matter is currently before the magistrate on the motions to dismiss 

and the response thereto. 

Conclusions of Law: 

{¶ 43} The commission and the BWC both argue that relator's motion seeking a 

scheduled loss of use award resulting from the death of decedent was not timely filed and 

there is no legal mechanism whereby relator can be substituted for decedent's mother or 

that the claim can be reactivated on relator's behalf. 

{¶ 44} Relator argues that, because the workers' compensation laws are to be 

liberally construed, this court should find the commission's determination that decedent's 

mother was not a dependent constituted new and changed circumstances requiring the 

commission to substitute relator in her place. 

{¶ 45} Because the magistrate finds no statutory or case law that would support 

relator's argument, this court should grant the motions to dismiss. 

{¶ 46} 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). 

{¶ 47} A motion to dismiss for failure to state a claim upon which relief can be 

granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. 

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint, 

the court must take all the material allegations as admitted and construe all reasonable 

inferences in favor of the nonmoving party. Id. 

{¶ 48} In order for a court to dismiss a complaint for failure to state a claim upon 

which relief can be granted, it must appear beyond doubt from the complaint that relator 

can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants 

Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not 

subject to dismissal under Civ.R. 12(B+)(6) if the complaint alleges the existence of a legal 

duty by the respondent and the lack of an adequate remedy at law for relator with 

sufficient particularity to put the respondent on notice of the substance of the claim being 

asserted against it, and it appears that relator might prove some set of facts entitling him 
12 

No. 18AP-66 

to relief. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 

94 (1995). For the following reasons, respondents' motions should be granted and 

relator's complaint should be dismissed. 

{¶ 49} R.C. 4123.57 provides, in pertinent part: 

Partial disability compensation shall be paid as follows. 

Except as provided in this section, not earlier than twenty-six 

weeks after the date of termination of the latest period of 

payments under section 4123.56 of the Revised Code, or not 

earlier than twenty-six weeks after the date of the injury or 

contraction of an occupational disease in the absence of 

payments under section 4123.56 of the Revised Code, the 

employee may file an application with the bureau of workers’ 

compensation for the determination of the percentage of the 

employee’s permanent partial disability resulting from an 

injury or occupational disease. 

 In addition, R.C. 4123.60 provides, in pertinent part: 

If the decedent would have been lawfully entitled to have 

applied for an award at the time of his death the administrator 

may, after satisfactory proof to warrant an award and 

payment, award and pay an amount, not exceeding the 

compensation which the decedent might have received, but 

for his death, * * * but such payments may be made only in 

cases in which application for compensation was made in the 

manner required by this chapter, during the lifetime of such 

injured or disabled person, or within one year after the death 

of such injured or disabled person. 

{¶ 50} Maretta filed a timely application for a scheduled loss of use award 

concerning decedent's loss of use of his lower bilateral extremities. This application was 

filed on her own behalf, and not on behalf of herself and other dependents. When she was 

found not to be a dependent, her application was dismissed. Relator does not argue that 

dismissal of Maretta's application was improper. 

{¶ 51} Relator filed an application for scheduled loss of use award after the oneyear statute of limitations had expired. Relator's application was not filed timely. As 

such, the commission did not process the application. Relator acknowledges that his 

application was not timely filed. 
13 

No. 18AP-66 

{¶ 52} Relator argues that, because R.C. 4123.60 provides that benefits shall be 

paid to one or more of the dependents of the decedent, for the benefit of all the 

dependents, that Maretta's application was the only application that needed to be filed. 

In essence, relator argues that decedent's mother filed her application on her behalf and 

on behalf of any and all dependents despite the fact that her application did not make any 

such assertion. Relator also argues that, because it is sufficient if a surviving spouse files 

an application on their own behalf it benefits the minor children, the application of a 

grandmother should have the same effect. 

{¶ 53} R.C. 4123.60 simply does not say what relator wants it to say. The 

decedent's mother did not include the relator in her application, although, presumably, 

she could have, and no one filed an application on relator's behalf. There simply is no 

case law to which relator can point which allows him to step into the shoes of decedent's 

mother. 

{¶ 54} Pursuant to R.C. 4123.52, "[t]he jurisdiction of the industrial commission 

and the authority of the administrator of workers' compensation over each case is 

continuing, and the commission may make such modification or change with respect to 

former findings or orders with respect thereto, as, in its opinion is justified." In State ex 

rel. B & C Machine Co. v. Indus. Comm., 65 Ohio St.3d 538, 541-42 (1992), the court 

examined the judicially-carved circumstances under which continuing jurisdiction may 

be exercised, and stated as follows: 

R.C. 4123.52 contains a broad grant of authority. However, we 

are aware that the commission's continuing jurisdiction is not 

unlimited. See, e.g., State ex rel. Gatlin v. Yellow Freight 

System, Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480 

N.E.2d 487 (commission has inherent power to reconsider its 

order for a reasonable period of time absent statutory or 

administrative restrictions); State ex rel. Cuyahoga Hts. Bd. 

of Edn. v. Johnston (1979), 58 Ohio St.2d 132, 12 O.O.3d 128, 

388 N.E.2d 1383 (just cause for modification of a prior order 

includes new and changed conditions); State ex rel. Weimer v. 

Indus. Comm. (1980), 62 Ohio St.2d 159, 16 O.O.3d 174, 404 

N.E.2d 149 (continuing jurisdiction exists when prior order is 

clearly a mistake of fact); State ex rel. Kilgore v. Indus. Comm.

(1930), 123 Ohio St. 164, 9 Ohio Law Abs. 62, 174 N.E. 345 

(commission has continuing jurisdiction in cases involving 

fraud); State ex rel. Manns v. Indus. Comm. (1988), 39 Ohio 
14 

No. 18AP-66 

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. 

{¶ 55} Relator also argues that the determination that decedent's mother was not 

a dependent constitutes new and changed circumstances warranting the commission to 

exercise its continuing jurisdiction and reactivate the application. Although he was found 

to be a dependent, relator took no steps to file a motion, or join in Maretta's motion even 

though her dependency was at issue. There simply is no statutory authority nor is there 

any case law which supports the conclusion that relator asks this court to reach today. 

Relator has not shown and cannot show that the commission abused its discretion. As 

such, it is this magistrate's decision that this court should grant the commission's motion 

and dismiss relator's mandamus complaint. 

 /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 

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).