OPINIONS OF THE SUPREME COURT OF OHIO 

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 The State ex rel. B & C Machine Company, Appellant, v. 

Industrial Commission of Ohio et al., Appellees. 

 [Cite as State ex rel. B & C Machine Co. v. Indus. Comm. 

(1992), Ohio St.3d .] 

Workers' compensation -- Industrial Commission has authority 

 pursuant to R.C. 4123.52 to modify a prior order that is 

 clearly a mistake of law. 

The Industrial Commission has the authority pursuant to 

 R.C. 4123.52 to modify a prior order that is clearly a 

 mistake of law. 

 (No. 92-150 -- Submitted October 20, 1992 -- Decided 

December 30, 1992.) 

 Appeal from the Court of Appeals for Franklin County, No. 

90AP-624. 

 In 1969, Elmer Holik was injured while in the course of 

and arising from his employment with appellant, B & C Machine 

Company. Following the allowance of his workers' compensation 

claim, Elmer applied for and was granted an additional forty 

percent award due to appellant's violation of a specific safety 

requirement. 

 In 1977, appellee Industrial Commission of Ohio 

("commission") awarded Elmer "medical treatment for control of 

diabetes due to industrial injury of amputation left hand." 

Elmer died in 1978 of diabetes-related renal disease. On 

October 21, 1980, Elmer's widow, appellee Sylvia R. Holik, 

filed an application for death benefits. A district hearing 

officer granted the death claim in February 1981, finding that 

Elmer's death was a result of an injury sustained in his 

employment with appellant. The order, and thus the award, were 

administratively affirmed. However, the death benefits did not 

include the additional forty percent awarded to Elmer during 

his lifetime for violation, by appellant, of the specific 

safety requirement. 

 On October 7, 1986, Sylvia's counsel wrote to the 

commission, claiming that the additional forty percent award 

entitled Sylvia to an additional $86.40 per week in death 

benefits. Sylvia's counsel further claimed that Sylvia was due 

eight years of additional compensation amounting to 
$35,942.40. The commission construed the letter as a motion 

for further benefits and scheduled the matter for hearing. 

 A hearing was conducted on May 2, 1989, and, as a result, 

the commission denied Sylvia's request for increased benefits. 

The commission concluded that the additional forty percent 

award paid to Elmer during his lifetime abated at his death. 

The commission further concluded that Sylvia was not entitled 

to the additional award because she did not file for such 

compensation within two years of Elmer's death. The commission 

stated that its decision was based upon Indus. Comm. v. Davis 

(1933), 126 Ohio St. 593, 186 N.E. 505, and State ex rel. Carr 

v. Indus. Comm. (1935), 130 Ohio St. 185, 4 O.O. 122, 198 N.E. 

480. 

 On July 20, 1989, Sylvia requested that the commission 

rehear its prior order denying the additional benefits. The 

following day, Sylvia also appealed the commission's order, 

pursuant to R.C. 4123.519, to the Court of Common Pleas of 

Summit County. Subsequently, the commission vacated its prior 

order and, on January 17, 1990, granted the increased award, 

stating that: 

 "It is the finding and order of the Commission that is 

[sic] retains jurisdiction over this claim in order to 

determine whether or not the order finding a violation of 

specific safety requirement dated July 28, 1973 was abated by 

reason of the claimant's death * * *. It is the finding of the 

Industrial Commission that the widow-claimant does have a 

vested right to continue to receive the additional award 

ordered by the Industrial Commission on July 28, 1973 and her 

right to receive such benefits survives the death of the 

decedent. * * * [O]nce a violation of specific safety 

requirement has been found by the Industrial Commission in the 

deceased-claimant's claim, it is unnecessary that the 

widow-claimant re-apply to the Industrial Commission for 

re-determining the existence or finding of a violation of 

specific safety requirement. Payment of the additional award 

to the widow-claimant * * * is to be made from October 26, 1978 

to the present. The violation of the specific safety 

requirement award was July 28, 1973. 40% award shall attach to 

death benefits payable to the widow-claimant. This 

determination is made pursuant to Commission rule 4121-3-20(A) 

and Article 2, Section 35 of the Ohio Constitution. * * *" 

 Appellant filed a complaint in mandamus in the Court of 

Appeals for Franklin County, challenging the commission's 

January 17, 1990 findings and order. The court of appeals 

found no abuse of discretion and denied the writ. 

 This matter is now before this court upon an appeal as of 

right. 

 

 Buckingham, Doolittle & Burroughs, Brett L. Miller and 

Eleanor J. Tschugunov, for appellant. 

 Lee I. Fisher, Attorney General, and Cordelia A. Glenn, 

Assistant Attorney General, for appellee Industrial Commission. 

 Stewart Jaffy & Associates, Stewart R. Jaffy and Marc J. 

Jaffy; Pavick & Pavick and Michael J. Pavick, for appellee 

Holik. 

 

 Douglas, J. The underlying issue in this appeal is 
whether the commission had the authority to vacate and 

reconsider its 1989 order denying additional benefits to Sylvia 

Holik. For the reasons that follow, we find that the 

commission had such authority. We further hold that the 

commission's January 17, 1990 decision is in accordance with 

law. 

 As a threshold matter, we note that appellant essentially 

concedes that the Summit County Court of Common Pleas did not 

have subject-matter jurisdiction to address the merits of 

Sylvia's R.C. 4123.519 appeal but, nevertheless, contends, 

citing various cases, that the filing of the notice of appeal 

in the common pleas court by Sylvia divested the commission of 

jurisdiction to reconsider its 1989 order, rendering the 

commission's January 17, 1990 decision null and void. The 

court of appeals, in addressing appellant's contention, 

concluded that: "* * * [T]he filing of an appeal terminates 

the Industrial Commission's authority to reconsider its 

decision only when the decision is appealable to a court. In 

other words, the agency's authority to reconsider its decision 

is not terminated by an attempted appeal from a decision which 

as a matter of law is not appealable." We agree with the 

conclusion reached by the court of appeals. 

 Without question, specific-safety-requirement-violation 

determinations by the commission are not directly appealable to 

the court of common pleas. See Afrates v. Lorain (1992), 63 

Ohio St.3d 22, 584 N.E.2d 1175. Section 35, Article II of the 

Ohio Constitution vests exclusive and final jurisdiction in the 

commission, with respect to specific-safety-requirement 

violations, subject to correction in mandamus upon a showing of 

an abuse of discretion. State ex rel. Cincinnati Drum Service, 

Inc. v. Indus. Comm. (1990), 52 Ohio St.3d 135, 556 N.E.2d 

459. Further, this court has determined that the filing of a 

R.C. 4123.519 appeal from a commission order which is not 

appealable is a "futile act." However, such a filing does not 

bar a suit in mandamus. See State ex rel. Dodson v. Indus. 

Comm. (1979), 58 Ohio St.2d 399, 401, 12 O.O.3d 345, 346, 390 

N.E.2d 1189, 1190. Thus, in view of the foregoing, we believe 

that the notice of appeal filed by Sylvia should be treated as 

a nullity and, as such, the notice does not divest the 

commission of jurisdiction to reconsider its 1989 order. 

Moreover, it is clear that appellant's reliance on those cases 

which hold that the commission retains jurisdiction to 

reconsider a decision only until the time an appeal is filed, 

or the time for appeal has run, is misplaced. 

 Appellant also objects to the January 17, 1990 award of 

additional benefits to Sylvia on the basis that the commission 

did not have jurisdiction to award such benefits since Sylvia's 

1986 request was not filed within two years of Elmer's death. 

However, we believe under the facts of this case the commission 

had the authority under R.C. 4123.52 to consider Sylvia's 1986 

request and correct its clear mistake of law in originally 

denying the additional benefits. 

 Continuing jurisdiction is vested in the commission by 

R.C. 4123.52, which provides, in part, that: 

 "The jurisdiction of the industrial commission over each 

case shall be 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." 

(Emphasis added.) 

 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.3d 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, 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. In so holding, 

we note that the court of appeals ably recognized that: "* * * 

[W]here it is clear that this court would issue a writ of 

mandamus ordering the Industrial Commission to vacate, modify 

or change a decision or order, the respondent Industrial 

Commission neither exceeds its authority or jurisdiction nor 

acts unlawfully nor abuses its discretion if it proceeds to 

make such correction that this court would clearly have ordered 

without awaiting either an action being filed in this court or 

a decision from this court if one be filed." 

 It is clear that the commission's 1989 order, denying 

Sylvia additional benefits, was a mistake of law. The 

commission's order was premised on the fact that Sylvia did not 

file a claim for additional benefits within two years of 

Elmer's death. 

 Ohio Adm.Code 4121-3-20 and 4123-3-20, and their 

predecessors, required that an application for an award for 

violation of a specific safety requirement be filed within two 

years of the injury or death resulting from the violation. 

Neither provision requires that an application be made within 

two years of the claimant's injury and, again, within two years 

of the claimant's death. Rather, when read in their entirety, 

these rules focus only on the initial 

specific-safety-requirement-violation determination. Here, an 

application for an award for violation of a specific safety 

requirement was filed by Elmer within two years of his injury. 

The commission has determined that a violation occurred, that 

appellant's violation caused injury, and that injury caused 

death. It is apparent that the specific-safety-requirement 

violation caused Elmer's death. Hence, to require the widow, 

Sylvia, to reestablish that the specific-safety-requirement 
violation caused the death of her husband would serve no useful 

purpose. Stated otherwise, the widow had nothing more to 

prove. The two-year administrative filing requirement was 

satisfied when Elmer filed his application. Given this factor, 

Sylvia was not required to file for additional benefits within 

two years of Elmer's death. Such additional benefits should 

have automatically attached to the death benefits paid Sylvia. 

 Accordingly, we find that the commission's January 17, 

1990 order was correct in all respects. The judgment of the 

court of appeals denying appellant's writ is affirmed. 

 Judgment affirmed. 

 Sweeney, H. Brown and Resnick, JJ., concur. 

 Moyer, C.J., Holmes and Wright, JJ., dissent. 

 Moyer, C.J., dissenting. In reaching the result that it 

does, the majority ignores the rule of law established as 

precedent in this court. Accordingly, I respectfully dissent. 

 An action in mandamus will lie when a public agency is 

under a clear legal duty to perform an official act and there 

is no plain and adequate remedy in the ordinary course of law. 

State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 

141, 40 O.O.2d 141, 228 N.E.2d 631, paragraph one of the 

syllabus. Thus, mandamus is appropriate when the Industrial 

Commission makes a decision on a request for an award of 

benefits for violation of a specific safety requirement 

("VSSR") which the law clearly prohibits. See State ex rel. 

Carr v. Indus. Comm. (1935), 130 Ohio St. 185, 4 0.0. 122, 198 

N.E. 480. Because in my view the law clearly prohibits the 

commission from reconsidering its initial order denying 

benefits under the circumstances of this case, I would grant 

the writ. 

 R.C. 4123.52 provides that the Industrial Commission has 

continuing jurisdiction over each case and that it may modify 

former orders "as, in its opinion is justified." Just cause 

for such a modification includes new and changed conditions, 

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; mistake of 

fact, State ex rel. Weimer v. Indus. Comm. (1980), 62 Ohio 

St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149; fraud, State ex rel. 

Kilgore v. Indus. Comm. (1930), 123 Ohio St. 164, 174 N.E. 345; 

and mistake by an inferior tribunal, State ex rel. Saunders v. 

Metal Container Corp. (1990), 52 Ohio St.3d 85, 556 N.E.2d 168. 

 Today, the majority adds to the list mistake of law in a 

prior order. Because I would hold that the commission's lack 

of power to modify its prior order is jurisdictional in nature, 

I would not reach this substantive question. 

 The dispositive principle in this case is that the power 

of the commission to modify a prior order is limited. The 

commission has jurisdiction to reconsider its decision until 

the expiration of time in which to initiate a court appeal, or 

until the actual institution of an appeal. State ex rel. 

Prayner v. Indus. Comm. (1965), 2 Ohio St.2d 120, 31 O.O.2d 

192, 206 N.E.2d 911. 

 This rule applies even where the court to which appeal is 

taken has no jurisdiction to hear the appeal. State ex rel. 

Borsuk v. Cleveland (1972), 28 Ohio St.2d 224, 57 O.O.2d 464, 

277 N.E.2d 419 (civil service commission has jurisdiction to 

reconsider decision until expiration of time for appeal or 
until actual appeal taken); Diltz v. Crouch (1962), 173 Ohio 

St. 367, 19 O.O.2d 312, 182 N.E.2d 315 (Board of Liquor Control 

has continuing jurisdiction until expiration of time for 

appeal, or actual appeal). 

 In Diltz, the plaintiffs were holders of liquor permits 

which the Board of Liquor Control revoked. Plaintiffs appealed 

the revocations to the trial court, which affirmed the board's 

decision. Thereafter, plaintiffs applied to the board for 

reconsideration, and the board modified the revocations to 

suspensions. This court held that even though the trial court 

lacked jurisdiction to hear the plaintiffs' appeal, the 

initiation of that appeal nevertheless terminated the board's 

jurisdiction to modify its prior order. 

 In Borsuk, relator was a police officer terminated after 

his one-year probationary period. Relator requested a hearing 

before the city civil service commission, pursuant to which the 

commission reinstated him. The city requested a rehearing, and 

afterwards appealed the commission's decision to the court of 

common pleas. The trial court dismissed the appeal for lack of 

subject-matter jurisdiction. The commission then refused to 

rehear the matter, stating that it lacked jurisdiction in view 

of the prior court appeal. The officer brought a mandamus 

action to compel the city to reinstate him pursuant to the 

pre-appeal order. The city opposed the mandamus action, 

arguing that the commission still had jurisdiction to rehear 

the matter and modify its order. This court affirmed the court 

of appeals in granting the writ, holding that the commission 

lost its jurisdiction to modify its order once the city 

appealed. Citing Diltz as controlling, this court expressly 

rejected the argument that because the trial court lacked 

jurisdiction to hear the city's appeal, the appeal never 

divested the commission of its power to rehear the matter. 

 It is not in dispute that VSSR determinations by the 

commission are not directly appealable to the court of common 

pleas. State ex rel. Cincinnati Drum Serv. v. Indus. Comm. 

(1990), 52 Ohio St.3d 135, 556 N.E.2d 459. The majority 

states, however, that because the commission's order was not 

appealable but instead subject only to an action in mandamus, 

Sylvia Holik's appeal did not divest the commission of 

jurisdiction to reconsider its order. Diltz and Borsuk, supra, 

however, hold otherwise. The majority opinion fails to cite 

any authority that contradicts the clear holdings of these 

cases. Nor does it give any principled reason for 

distinguishing them, other than the bald assertion that 

reliance on these cases "is misplaced." The majority thus 

exempts the Industrial Commission from law that governs other 

administrative agencies. 

 In fact, the reasoning in Diltz and Borsuk is equally 

applicable here. Once the Industrial Commission denied VSSR 

benefits to appellee Holik, it retained jurisdiction to modify 

its order, for good cause shown, until the expiration of the 

time for appeal or the actual institution of appeal. When 

Holik instituted her court appeal on July 21, 1989, however, 

the commission lost the power to modify its prior order. The 

fact that the court of common pleas lacked jurisdiction to hear 

Holik's appeal from an adverse decision of the commission on 

her entitlement to VSSR benefits does not change this result. 
The trial court did have jurisdiction to make the threshold 

determination of whether to allow the action to proceed. See 

State ex rel. Dickison v. Court of Common Pleas (1971), 28 Ohio 

St.2d 179, 57 O.O.2d 411, 277 N.E.2d 210. 

 The majority chooses to ignore this clear and 

well-established law, asserting instead that because the filing 

of an R.C. 4123.519 appeal is a "futile act," it could not 

divest the commission of the power to reconsider. Although 

such an appeal may be futile, it is not without consequences. 

While it is unfortunate that appellee made the decision to file 

a futile appeal to the court of common pleas, apparently 

without the awareness of these consequences, it is not the 

function of this court to mitigate the errors of litigants or 

their counsel by ignoring applicable law. The appeals taken 

from administrative bodies in Diltz and Borsuk were equally 

futile acts, yet they ended the jurisdiction of the agency to 

reconsider. The same result should occur here. 

 I would hold that the Industrial Commission loses 

jurisdiction to reconsider its own order once the party 

requesting reconsideration of the order has appealed it to the 

court of common pleas. 

 To achieve the result it does, the majority overlooks the 

principle that true fairness in the law requires its consistent 

application and respect for binding precedent. Because this 

court's precedent contradicts the majority's decision in this 

case, I respectfully dissent. 

 Holmes and Wright, JJ., concur in the foregoing dissenting 

opinion.