[Cite as State ex rel. Blaine v. Indus. Comm., 2015-Ohio-3568.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Eric M. Blaine, : 

 

 Relator, : 

v. : No. 14AP-689 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Hamilton County, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on September 1, 2015 

 

Fox & Fox Co., L.P.A., and Karen P. Mitchell, for relator. 

Michael DeWine, Attorney General, and Cheryl J. Nester, for 

respondent Industrial Commission of Ohio. 

Joseph T. Deters, Hamilton County Prosecuting Attorney, 

and Jeremiah Seebohm, for respondent Hamilton County, 

Ohio. 

 

IN MANDAMUS 

TYACK, J. 

{¶ 1} Eric M. Blaine filed this action in mandamus, seeking a writ to compel the 

Industrial Commission of Ohio ("commission") to exercise continuing jurisdiction in his 

industrial claim. 

{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case 

was referred to a magistrate to conduct appropriate proceedings. The parties stipulated 

the pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision 
No. 14AP-689 2 

which is appended hereto. The magistrate's decision includes a recommendation that we 

deny the request for a writ. 

{¶ 3} No party has filed objections to the magistrate's decision. It is now before 

the court for review. 

{¶ 4} No error of law or fact is present on the face of the magistrate's decision. 

We therefore adopt the findings of fact and conclusions of law contained in the 

magistrate's decision. As a result, we deny the request for a writ of mandamus. 

Writ denied. 

KLATT and HORTON, JJ., concur. 

 

 
No. 14AP-689 3 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Eric M. Blaine, : 

 

 Relator, : 

v. : No. 14AP-689 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Hamilton County, 

 : 

 Respondents. 

 : 

 

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

Rendered on May 13, 2015

 

Fox & Fox Co., L.P.A., and Karen P. Mitchell, for relator. 

Michael DeWine, Attorney General, and Colleen C. Erdman, 

for respondent Industrial Commission of Ohio. 

Joseph T. Deters, Hamilton County Prosecuting Attorney, 

and Jeremiah Seebohm, for respondent Hamilton County, 

Ohio. 

 

IN MANDAMUS 

{¶ 5} In this original action, relator, Eric M. Blaine, requests a writ of mandamus 

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

November 1, 2013 order of its staff hearing officer ("SHO") that denies relator's 

August 26, 2013 motion for the exercise of R.C. 4123.52 continuing jurisdiction over the 

May 1, 2013 order of its district hearing officer ("DHO") that disallows the industrial claim 
No. 14AP-689 4 

for the conditions of "tear left medial meniscus and tear medial cartilage left knee," and to 

adjudicate the merits of relator's August 26, 2013 motion pursuant to its continuing 

jurisdiction. 

Findings of Fact: 

{¶ 6} 1. On September 19, 2012, relator injured his left knee while employed as a 

deputy sheriff for respondent Hamilton County. The injury occurred during a fitness test 

relator was performing. 

{¶ 7} 2. In his complaint, at paragraph four, relator alleges that the industrial 

claim (No. 12-349662) is allowed for "sprain of the left medial collateral ligament and 

partial tear of the left patellar tendon." In its answer, the commission admits to the 

allowed conditions as set forth in the complaint. 

{¶ 8} 3. In early October 2012, treating physician Daniel A. Funk, M.D., referred 

relator for an MRI of the left knee. 

{¶ 9} 4. On October 5, 2012, relator underwent an MRI of the left knee. The 

radiologist who read the MRI rendered the following "impression": 

Mild complex increased signal within the posterior horn of 

the medial meniscus suggesting a complex tear. 

{¶ 10} 5. On February 8, 2013, Dr. Funk wrote: 

I have told the patient that at this point his symptoms do 

seem to indicate a possible meniscus tear. This was 

equivocal and the previous MRI [sic] but given his continued 

symptoms, I think it is more likely clinically. For that reason 

I have offered him arthroscopy. * * * 

I have discussed the procedure of 29881 Arthroscopy, knee 

surgical; with meniscectomy (medial OR lateral) including 

the proposed benefits, risks, complications and alternatives 

with the patient. * * * At the conclusion of this discussion the 

patient has made an informed decision to proceed with the 

intended treatment plan. 

(Emphasis sic.) 

{¶ 11} 6. On or about February 12, 2013, Dr. Funk or his office completed a form 

provided by the Ohio Bureau of Workers' Compensation ("bureau") that is captioned, 

"Request for Medical Service Reimbursement or Recommendation for Additional 
No. 14AP-689 5 

Conditions for Industrial Injury or Occupational Disease." The form is designated by the 

bureau as a C-9. 

{¶ 12} On the C-9, for the requested services "Surgery 29881 left knee" is written. 

The treating diagnosis is listed as codes "836.0" and "844.9." 

{¶ 13} Apparently, the initial C-9 was not signed by Dr. Funk. Thus, the managed 

care organization ("MCO") did not process the initial C-9. Several days later, the same C9 was submitted to the MCO with Dr. Funk's signature. 

{¶ 14} 7. On February 15, 2013, the MCO completed a bureau form captioned, 

"Request for Additional Medical Documentation for C-9." On this form, the MCO 

indicated to Dr. Funk that medical documentation in the form of "Office/Progress notes" 

is needed to support the C-9 request for surgery. 

{¶ 15} On the MCO's request, the MCO stated: 

The Codes listed on the C9 836.0 and 844.9 are not currently 

allowed conditions of the claim. [D]o you want the BWC to 

amend them to the claim? 

{¶ 16} 8. By letter dated February 26, 2013, the MCO denied the request for 

surgery. The reason for the denial is "Requested service or treatment not appropriate for 

allowance in claim." 

{¶ 17} 9. On the C-9 form, box six sets forth the following query: 

If you are recommending additional conditions to the claim, 

supporting documentation is required. * * * Provide diagnosis (narrative description only), and location and site for 

conditions you are requesting. 

{¶ 18} 10. On a third C-9 form containing the same date, i.e., February 12, 2013, as 

the two previous C-9's, Dr. Funk responded to box six by listing codes "836.0" and 

"844.9." 

 Apparently, after the third C-9 was submitted, the MCO wrote: 

Additional condition request has been forwarded to the BWC 

for further determination. 

{¶ 19} 11. The record contains a letter to relator mailed March 5, 2013 from a 

bureau claims service specialist ("CSS"): 
No. 14AP-689 6 

This letter documents our conversation on 3-5-2013 

regarding the additional condition(s) of tear medial cartilage 

left knee and sprain left knee identified by your physician on 

2-12-13. Per our conversation, this letter serves as documentation of your formal request for BWC to begin our 

evaluation of the identified condition(s). We will notify you 

in writing of our decision upon completion of our evaluation. 

If you do not agree, or if you have questions or concerns, 

please contact me immediately at the phone or fax number 

listed below. 

{¶ 20} 12. On March 5, 2013, the CSS entered a notation on bureau records 

indicating: "The [Injured Worker] is in agreement with the additional conditions being 

requested." 

{¶ 21} 13. At the request of the bureau, James D. Brue, M.D., conducted a review 

of the records contained in the claim file. In his five-page narrative report dated March 

21, 2013, Dr. Brue opined: 

It is my medical opinion that there is not sufficient evidence 

to support the request for sprain left knee, tear left medial 

meniscus as being the direct and proximate result of 

industrial injury by direct causation, substantial aggravation 

or flow through. 

(Emphasis sic.) 

{¶ 22} 14. On May 1, 2013, a DHO heard the request for additional allowances in 

the claim. Relator was present at the hearing. Following the hearing, the DHO mailed an 

order on May 4, 2013 denying the request for additional allowances. The DHO explains: 

The District Hearing Officer considers the Request For 

Additional Allowance filed by Injured Worker on 

03/05/2013. The District Hearing Officer finds that the 

request for sprain of the left knee is moot as the condition of 

sprain of the left knee is redundant with the conditions, 

already recognized in the claim. 

The District Hearing Officer finds that the conditions of tear 

of the left medial meniscus and tear medial cartilage left 

knee are not causally related to the industrial injury of date 

and the previously recognized conditions in the claim. 

Therefore the conditions of TEAR LEFT MEDIAL 
No. 14AP-689 7 

MENISCUS and TEAR MEDIAL CARTILAGE LEFT 

KNEE are DISALLOWED. 

This order is based on the medical report of Dr. Brue dated 

03/21/2013. 

(Emphasis sic.) 

{¶ 23} 15. The May 1, 2013 order of the DHO was not administratively appealed. 

{¶ 24} 16. On August 26, 2013, alleging a clear mistake of law, relator, through 

counsel, moved that the commission exercise continuing jurisdiction over the DHO's 

order of May 1, 2013 that disallowed the claim for "tear left medial meniscus and tear 

medial cartilage left knee." 

{¶ 25} 17. Following a September 23, 2013 hearing, a DHO mailed an order on 

September 27, 2013 denying relator's August 26, 2013 motion for the exercise of 

continuing jurisdiction. 

{¶ 26} 18. Relator administratively appealed the DHO's order of September 23, 

2013. 

{¶ 27} 19. Following a November 1, 2013 hearing, an SHO issued an order that 

affirms the September 23, 2013 DHO's order. The SHO's order of November 1, 2013 

explains: 

The order of the District Hearing Officer, issued on 

09/27/2013, is hereby affirmed. 

It is the order of the Staff Hearing Officer that the C-86 

motion, filed by the Injured Worker on 08/26/2013, is 

denied. 

In the motion, the Injured Worker requested that the 

Industrial Commission of Ohio exercise its continuing 

jurisdiction over the claim pursuant to R.C. 4123.52, and 

vacate the District Hearing Officer order issued on 

05/04/2013. The Injured Worker argued that the District 

Hearing Officer order issued on 05/01/2013, contain[s] a 

mistake of law. 

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

issued on 05/04/2013 by District Hearing Officer does not 

contain a mistake of law, and thus, there is no grounds to 
No. 14AP-689 8 

exercise continuing jurisdiction by the Industrial Commission over the order and vacate it. The District Hearing 

Officer order, issued on 05/04/2013, addressed a request to 

amend the claim to include additional conditions. The 

Injured Worker argued that the request was not physically 

signed by the Injured Worker, and thus, it was an error for 

the Hearing Officer to proceed and adjudicate whether the 

claim should be amended to include the conditions 

addressed in the order. The issue of whether to amend the 

claim to include the additional condition was raised pursuant 

to a C-9 request filed on 02/26/2013. The C-9 request was 

signed by Dr. Funk. In response to the request, the Bureau 

of Workers' Compensation contacted the Injured Worker 

who verbally acknowledged his desire to pursue the 

additional conditions. The Injured Worker's telephone 

conversation was memorialized in a letter dated 03/05/2013 

from the Bureau of Workers' Compensation, and in the 

Bureau of Workers' Compensation claim notes filed on 

04/03/2013. Ultimately, the Bureau of Workers' Compensation referred the issue to [the] Industrial Commission for 

hearing. That hearing occurred on 05/01/2013. The Injured 

Worker did attend that hearing, as noted by the order at 

issue. 

Therefore, the Injured Worker's request to vacate the order 

issued by a District Hearing Officer on 05/04/2013, is 

denied. 

This order is based on O.R.C. 4123.52, the C-9 request filed 

on 02/26/2013, the BWC claim notes filed on 04/03/2013, 

the BWC letter, dated 03/05/2013, and the DHO order 

issued on 05/04/2013. 

{¶ 28} 20. On November 26, 2013, another SHO mailed an order refusing relator's 

administrative appeal from the SHO'S order of November 1, 2013. 

{¶ 29} 21. On September 4, 2014, relator, Eric M. Blaine, filed this mandamus 

action. 

Conclusions of Law: 

{¶ 30} This action is barred by a plain and adequate remedy at law that relator 

failed to pursue. Thus, it is the magistrate's decision that this court deny relator's request 

for a writ of mandamus. 
No. 14AP-689 9 

{¶ 31} Mandamus will not lie where the relator has a plain and adequate remedy at 

law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). The failure to pursue an 

adequate administrative remedy bars mandamus. State ex rel. Reeves v. Indus. Comm., 

53 Ohio St.3d 212 (1990). 

{¶ 32} Relator had a statutory right under R.C. 4123.511(C) to appeal the May 1, 

2013 order of the DHO to an SHO. However, relator failed to exercise his statutory right 

to appeal. The statutory right to appeal the DHO's order of May 1, 2013 to an SHO 

constitutes an adequate administrative remedy that bars this mandamus action. Id. 

{¶ 33} Notwithstanding his failure to pursue the adequate administrative remedy, 

relator moved the commission to exercise its continuing jurisdiction over the DHO's order 

of May 1, 2013. 

{¶ 34} Continuing jurisdiction is not unlimited. Its prerequisites are: (1) new and 

changed circumstances; (2) fraud; (3) clear mistake of fact; (4) clear mistake of law; and 

(5) error by an inferior tribunal. State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 

585, 2004-Ohio-5990; State ex rel. Royal v. Indus. Comm., 95 Ohio St.3d 97 (2002); 

State ex rel. Foster v. Indus. Comm., 85 Ohio St.3d 320 (1999); and State ex rel. 

Nicholls v. Indus. Comm., 81 Ohio St.3d 454 (1998). 

{¶ 35} While relator's failure to appeal the DHO's order of May 1, 2013 did not 

prohibit the commission from exercising its continuing jurisdiction, State ex rel. Scott v. 

Ohio Bur. of Workers' Comp., 73 Ohio St.3d 202 (1995), it does prohibit this court from 

issuing a writ of mandamus. 

{¶ 36} Speaking through its magistrate, this court in State ex rel. Barko Ents., 

Inc., v. Indus. Comm., 10th Dist. No. 09AP-572, 2010-Ohio-5435, ¶ 29, states: 

Relator cannot eliminate the effect of its failure to 

administratively appeal the bureau's order by subsequently 

filing a motion for the exercise of continuing jurisdiction. 

Whether the commission rightly or wrongly determined not 

to exercise continuing jurisdiction is not an issue before this 

court because relator failed to administratively appeal the 

bureau's order. 

{¶ 37} This court's statement in Barko is equally applicable here. That is, relator 

cannot eliminate the effect of his failure to administratively appeal the DHO's order of 
No. 14AP-689 10 

May 1, 2013 that disallows his claim for "tear left medial meniscus and tear medial 

cartilage left knee" by subsequently filing a motion for the exercise of continuing 

jurisdiction over the DHO's order of May 1, 2013. 

{¶ 38} Whether or not the commission, through its SHO's order of November 1, 

2013 denying the motion for continuing jurisdiction, correctly determined that the DHO 

of May 1, 2013 had the authority to adjudicate a request for the allowance of additional 

conditions in the claim without relator's signature approving such request is not an issue 

before this court in this mandamus action. Clearly, relator could have raised the issue 

before an SHO had he administratively appealed the DHO's order of May 1, 2013, even 

though relator apparently never raised the issue before the DHO. The proceeding before 

an SHO would have been a de novo review of the DHO's order of May 1, 2013. Clearly, a 

motion for the exercise of continuing jurisdiction cannot be used as a substitute for an 

appeal. 

{¶ 39} Accordingly, for all the above reasons, it is the magistrate's decision that this 

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

 

 /S/MAGISTRATE 

 KENNETH W. MACKE 

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).