[Cite as State ex rel. Black v. CVS Pharmacy, Inc.,, 2015-Ohio-4868.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[State ex rel.] Sharon Black, : 

 

 Relator, : 

 

v. : No. 15AP-120 

 

CVS Pharmacy, Inc., Revco, D.S., Inc. : (REGULAR CALENDAR) 

and Industrial Commission of Ohio, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on November 24, 2015

 

Michael J. Muldoon, for relator. 

Thomas & Company, L.P.A., and William R. Thomas, for 

respondent CVS Pharmacy, Inc., Revco, D.S., Inc. 

Michael DeWine, Attorney General, and Stephen D. 

Playmale, for respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

ON OBJECTIONS TO MAGISTRATE'S DECISION 

DORRIAN, J. 

{¶ 1} In this original action, relator, Sharon Black ("relator"), requests a writ of 

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

its order exercising its continuing jurisdiction and finding that her claim should not be 

allowed for a disc herniation at T12-L1 when she had already filed a notice of appeal from 

the disallowance of other conditions, pursuant to R.C. 4123.512, and ordering the 

commission to reinstate its order allowing her claim for disc herniation at T12-L1. 

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

Appeals, this matter was referred to a magistrate who issued a decision, including findings 
No. 15AP-120 2 

of fact and conclusions of law, which is appended hereto. The magistrate concluded that 

relator has an adequate remedy in the ordinary course of law by way of appeal to the 

common pleas court and, as such, is not entitled to a writ of mandamus. Accordingly, the 

magistrate recommended that this court deny the requested writ of mandamus. 

{¶ 3} No objections have been filed to the magistrate's findings of fact. After an 

independent review of the same, we adopt those findings of fact as our own. 

Relator objects to the magistrate's conclusion that she has an adequate remedy of law by 

way of an appeal to the common pleas court and argues that mandamus is the appropriate 

remedy pursuant to the Supreme Court of Ohio precedent in State ex rel. Saunders v. 

Metal Container Corp., 52 Ohio St.3d 85 (1990). Relator argues that, because she had 

already appealed the disallowance of other claims to the common pleas court, the 

commission did not have jurisdiction to invoke its continuing jurisdiction to deny her 

claim for disc herniation at T12-L1. 

{¶ 4} In Saunders, the commission's district hearing officer ("DHO") issued an 

order allowing a condition described as "back." At the time, R.C. 4121.36(B) required the 

order allowing a condition to contain a "description of the part of the body and nature of 

the disability recognized in the claim." The commission subsequently attempted to 

correct the error by amending the part of the body affected from "back" to "lumbosacral" 

and "lumbar spine." 

{¶ 5} The Supreme Court noted that a statutorily defective allowance, such as the 

one issued by the DHO, constituted a "mistake," which permitted the commission, 

pursuant to R.C. 4123.52, to invoke its continuing jurisdiction to correct. It held, 

however, that the commission could have simply amended the allowed condition to reflect 

"back sprain," but, instead, the commission went too far in narrowing the named body 

part from "back" to "lumbosacral" and "lumbar spine." The Supreme Court held that, 

although the commission was permitted to invoke continuing jurisdiction to correct the 

mistake, the continuing jurisdiction did not allow the extent of the correction attempted 

here. 

{¶ 6} Relevant here, the Supreme Court in Saunders also held that mandamus 

was the proper remedy to address the commission's improper extension of continuing 

jurisdiction. The Supreme Court noted that "[t]he relevant question here is not one of 
No. 15AP-120 3 

appellee's right to participate * * * for a 'back' injury but is instead whether a mistake 

sufficient to invoke the continuing jurisdiction provisions of R.C. 4123.52 existed. We 

find the latter question to be the proper subject matter for a writ of mandamus." Id. at 86. 

{¶ 7} Relator suggests that Saunders controls. We disagree. The question before 

us now is not whether a mistake sufficient to invoke the continuing jurisdiction provisions 

of R.C. 4123.52 existed. The crux of relator's argument here, however, is that the 

institution of an appeal of the disallowance of other claims, pursuant to R.C. 4123.519, 

deprived the commission of jurisdiction to even consider whether there was a mistake 

sufficient to invoke it's continuing jurisdiction, pursuant to R.C. 4123.52, regarding the 

disc herniation at T12-L1 claim. The issue here is a precursor to the issue of whether a 

mistake existed sufficient to invoke the continuing jurisdiction provisions of R.C. 4123.52. 

{¶ 8} Relator argues that the magistrate's reliance on State ex rel. Alhamarshah 

v. Indus. Comm., 142 Ohio St.3d 524, 2015-Ohio-1357, is misplaced. In Alhamarshah, 

the commission accepted documentation from the employer and determined that it 

substantially complied with the statutory requirements for a notice of an appeal of the 

Bureau of Worker's Compensation's initial allowance of a claim. The Supreme Court of 

Ohio noted that "[t]his decision conferred jurisdiction on the commission to proceed to 

consider the merits of the purported employer's appeal" and that such exercise of 

jurisdiction "resulted in a decision denying the claimant's right to participate in the 

worker's compensation system." The Supreme Court held that "[c]onsequently, the 

decision allowing the appeal to proceed was essential to the ultimate determination that 

denied the claimant's participation in the worker's compensation system. As such, the 

commission's decision to accept the appeal as valid was appealable pursuant to R.C. 

4123.512." (Emphasis added.) Id. at ¶ 10-12. Likewise, here, the commission's decision 

to proceed, while the appeal of other disallowed claims was pending in the common pleas 

court, was essential to the ultimate determination that denied relator's participation in the 

workers' compensation system for the disc herniation at T12-L1. 

{¶ 9} We find the magistrate properly relied upon Alhamarshah, and, for the 

reasons stated above and in the magistrate's decision, we find no merit to relator's 

objections. 

{¶ 10} Accordingly, relator's objections to the magistrate's decision are overruled. 
No. 15AP-120 4 

{¶ 11} Upon review of the magistrate's decision, an independent review of the 

record, and due consideration of relator's objections, we find that the magistrate has 

properly determined the pertinent facts and applied the appropriate law. We, therefore, 

overrule relator's objections to the magistrate's decision and adopt the magistrate's 

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

therein. Accordingly, the requested writ of mandamus is hereby denied. 

Objections overruled; writ denied. 

BROWN, P.J., and TYACK, J., concur. 

_________________ 
No. 15AP-120 5 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[State ex rel.] Sharon Black, : 

 

 Relator, : 

 

v. : No. 15AP-120 

 

CVS Pharmacy, Inc., Revco, D.S., Inc. : (REGULAR CALENDAR) 

and Industrial Commission of Ohio, 

 : 

 Respondents. 

 : 

 

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

Rendered on August 20, 2015

 

Michael J. Muldoon, for relator. 

Thomas & Company, L.P.A., and William R. Thomas, for 

respondent CVS Pharmacy, Inc., Revco, D.S., Inc. 

Michael DeWine, Attorney General, and Stephen D. 

Playmale, for respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

{¶ 12} Relator, Sharon Black, has filed this original action requesting that this 

court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio 

("commission"), to vacate its order exercising its continuing jurisdiction, and finding that 

her claim should not be allowed for a disc herniation at T12-L1 when she had already filed 

a notice of appeal from the disallowance of other conditions pursuant to R.C. 4123.512, 
No. 15AP-120 6 

and ordering the commission to reinstate its order allowing her claim for disc herniation 

at T12-L1. 

Findings of Fact: 

{¶ 13} 1. Relator alleged that she sustained a work-related injury on November 27, 

2012, and that she hurt her back. Respondent, CVS Pharmacy, Inc., Revco, D.S., Inc. 

("CVS"), as a self-insured employer, certified her claim for lumbar strain and thoracic 

strain. 

{¶ 14} 2. On March 19, 2014, relator filed a C-86 motion asking that her workers' 

compensation claim be additionally allowed for the following conditions: 

"847.1 thoracic ba[c]k strain; 847.2 lumbar back strain; 

846.0 lumbosacral strain" by direct causation. "7252.10 

lumbar disc displacement; 725.11 thoracic disc displacement; 

724.3 sciatica" by substantial aggravation of preexisting 

condition. 

{¶ 15} 3. The only piece of evidence relator submitted was the February 25, 2014 

report of Steven Parsons, M.D., whose report simply states that relator's claim should 

include the above listed diagnoses. 

{¶ 16} 4. Relator's motion was heard before a district hearing officer ("DHO") on 

June 27, 2014. After finding that CVS had already allowed her claim for thoracic back 

strain and lumbar back strain, the DHO found that her request to have those conditions 

allowed was moot. Thereafter, the DHO determined that relator had not met her burden 

of proving that she be permitted to have the other conditions allowed in her claim, 

stating1: 

It is noted that the conditions of THORACIC BACK 

STRAIN and LUMBAR BACK STRAIN have been 

accepted by the Self-Insuring Employer and are therefore 

moot. 

The claim is specifically DISALLOWED for 

"LUMBOSACRAL STRAIN; SUBSTANTIAL 

AGGRAVATION OF PRE-EXISTING LUMBAR DISC 

DISPLACEMENT; SUBSTANTIAL AGGRAVATION 

 

1 While the DHO order cites to additional medical evidence, i.e., reports from Drs. Friedman and Shadel, 

MRI reports, and office notes of Dr. Miely, none of those documents are contained in the stipulation of 

evidence. 
No. 15AP-120 7 

OF PRE-EXISTING THORACIC DISC 

DISPLACEMENT; SCIATICA."

The District Hearing Officer finds that the medical evidence 

fails to persuasively support that these conditions are 

causally related to the 11/27/2012 industrial injury. The 

District Hearing Officer relies on the report of Dr. Freedman 

dated 06/25/2014 as well as reports of Dr. Shadel dated 

12/31/2013 and 09/18/2013. These physicians note the 

extensive pre-existing treatment including surgery in 2008 

and 2010 for the lumbar spine. Dr. Freedman opines that the 

medical evidence fails to support the lumbosacral strain as 

being causally related to the industrial injury and that the 

medical evidence fails to support a substantial aggravation of 

pre-existing lumbar disc displacement and thoracic disc 

displacement and sciatica. The District Hearing Officer also 

notes the office notes of Dr. Miely dated 01/24/2013 and 

03/19/2013 indicate the MRI of the lumbar spine did not 

show any particular abnormalities noting no motor or 

sensory deficits on examination and that the thoracic spine 

MRI was normal. 

(Emphasis sic.) 

{¶ 17} 5. Relator appealed and the matter was heard before a staff hearing officer 

("SHO") on August 20, 2014. The SHO modified the prior DHO order, agreeing that 

relator's claim should not be allowed for the additional conditions of lumbosacral strain 

and sciatica. The SHO dismissed the requested additional allowances of substantial 

aggravation of pre-existing lumbar disc displacement and thoracic disc displacement as 

vague because no levels were listed. However, the SHO determined that relator's claim 

should be additionally allowed for disc herniation at T12-L1, stating: 

[I]t is the order of the Staff Hearing Officer that * * * this 

claim is additionally ALLOWED for "DISC 

HERNIATION T12-L1" based on the 01/15/2013 lumbar 

MRI, the 03/13/2013 thoracic MRI, the 01/24/2013 office 

note of Dr. Miely which notes "most of her pain is at the level 

of the mid thoracic spine at the level of the bra strap," the 

02/25/2014 report of Dr. Parsons and the testimony of the 

Injured Worker who indicated that she was injured lowering 

80 to 90 pounds (a 40 pound tote with additional 40 to 50 

pounds of sugar that had slid onto the tote) from above her 

head to the floor. The Staff Hearing Officer finds that this 

condition is a result of the 11/27/2012 incident. 
No. 15AP-120 8 

(Emphasis sic.) 

{¶ 18} 6. CVS filed an appeal on grounds the SHO allowed relator's claim for a 

condition she not only did not request, but for which CVS did not have notice. 

{¶ 19} 7. In an order mailed September 16, 2014, the commission refused CVS's 

appeal. 

{¶ 20} 8. On September 24, 2014, CVS filed a request for reconsideration arguing 

that the SHO's order contained a clear mistake of law: 

We represent the self-insured employer, CVS Pharmacy, with 

regard to the above-referenced matter. CVS urges the 

Industrial Commission of Ohio to reconsider its refusal 

order, mailed September 16, 2014. An additional hearing is 

warranted pursuant to Industrial Commission Resolution 

08-1-01 because the Staff Hearing Officer's order contains a 

clear mistake of law. Specifically, the Staff Hearing Officer 

additionally allowed the claim for Disc Herniation T12-L1. 

However, this condition was neither requested by the 

claimant nor was it noticed on the Notice of Hearing. "As a 

matter of law, at hearings with notice, consideration shall be 

confined to the issues presented in the adjudication of the 

claim..." OAC 4121-3-09(C)(5). Not only was the additional 

condition of Disc Herniation T12-L1 not noticed, this issue 

was never even discussed at the hearing. Therefore, the 

employer has been prejudiced. 

Accordingly, the SHO's order additionally allowing this claim 

for a Disc Herniation T12-L1 constitutes a mistake of law. 

More important, the employer was never granted an 

opportunity to contest the condition of Disc Herniation T12-

L1. 

{¶ 21} 9. On October 7, 2014, relator filed a notice of appeal pursuant to section 

R.C. 4123.512 in the Franklin County Court of Common Pleas ("common pleas court") 

arguing that she is entitled to participate in the Ohio workers' compensation system for 

the conditions which the commission disallowed. 

{¶ 22} 10. In an order mailed October 23, 2014, the commission first denied CVS's 

request for reconsideration finding that the request failed to meet the criteria of Industrial 

Commission Resolution R08-1-01 and, thereafter, the commission found that the 

evidence on file was sufficient to warrant adjudication of a probable clear mistake of fact 

and law in the SHO's order on the following grounds: 
No. 15AP-120 9 

Specifically, it is arguable that in the Staff Hearing Officer 

order, issued 08/22/2014, the Staff Hearing Officer 

additionally allowed the claim for disc herniation T12-L1 on a 

direct causation basis without citing to medical evidence 

supporting recognition of the condition under such theory of 

causation. 

{¶ 23} The commission vacated the prior SHO's order, invoked its continuing 

jurisdiction, and determined that relator's appeal filed pursuant to R.C. 4123.512 only 

divested the commission of jurisdiction to consider the merits of her request for 

additional allowances of lumbosacral strain and sciatica, and noted that those issues 

would not be considered at the hearing. 

{¶ 24} 11. The commission held a hearing on January 6, 2015, and, in a corrected 

order mailed March 4, 2015, determined that grounds existed for the exercise of 

continuing jurisdiction, on a sua sponte basis, due to a clear mistake of law in the SHO's 

order. The commission granted CVS's appeal, vacated the order of the SHO, and 

specifically disallowed relator's claim for disc herniation at T12-L1, stating: 

It is further the order of the Commission the Injured 

Worker's C-86 Motion, filed 03/19/2014, seeking additional 

allowance * * * [is] denied to the extent and in the manner 

specified below. The claim is specifically DISALLOWED 

for DISC HERNIATION AT T12-L1. In reaching this 

portion of the decision, the Commission relies upon the 

06/25/2014 narrative of Paul Freedman, M.D., as well as the 

12/31/2013 addendum report of Robert Shadel, M.D. This 

medical evidence indicates the disc condition was not 

directly caused by the industrial injury of 11/27/2012. 

 

(Emphasis sic.) 

{¶ 25} The commission specifically rejected relator's argument that the 

commission had been divested of jurisdiction because of relator's appeal, stating: 

At the outset of his presentation at the 01/06/2015 hearing 

before the Commission, the Injured Worker's representative 

argued the Commission was without jurisdiction to proceed 

on the matter noticed for hearing because the Injured 

Worker had previously appealed the underlying Staff 

Hearing Officer order of 08/22/2014, into the Court of 

Common Pleas of Franklin County on 10/02/2014. This 

appeal, the Injured Worker's representative argued, divested 
No. 15AP-120 10 

the Commission of authority to further address any of the 

findings in that order. 

The Commission rejects this argument. The Injured 

Worker's appeal into court pursuant to R.C. 4123.512 only 

pertained to the conditions of "lumbosacral strain and 

sciatica," which were denied by the Staff Hearing Officer 

order of 08/22/2014. Because of this fact, the Commission 

finds it only lost jurisdiction with respect to those specific 

conditions and otherwise retains jurisdiction to address the 

other issues the Staff Hearing Officer order of 08/22/2014 

adjudicated. 

{¶ 26} 12. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 27} For the reasons that follow, it is this magistrate's decision that relator has 

not demonstrated that the commission abused its discretion when it exercised its 

continuing jurisdiction and this court should deny relator's request for a writ of 

mandamus. 

{¶ 28} 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). 

{¶ 29} Relator contends that the commission did not have jurisdiction to disallow 

her claim for disc herniation at T12-L1 because, at the time the commission made this 

determination, relator had an appeal pending in the common pleas court pursuant to R.C. 

4123.512 and was challenging the commission's earlier determination which disallowed 

her claim for lumbosacral strain and sciatica. Relator asserts that, when she filed her 

notice of appeal, the commission lost jurisdiction to take further administrative 

proceedings in reference to her claim. Further, relator asserts that, once the commission 

denied the employer's request for reconsideration, the commission was without 

jurisdiction to sua sponte reconsider the SHO's order which allowed her claim for disc 

herniation T12-L1. 

{¶ 30} Recently, the Supreme Court of Ohio decided State ex rel. Alhamarshah v. 

Indus. Comm., 142 Ohio St.3d 524, 2015-Ohio-1357. In that case, Mustafa Alhamarshah 
No. 15AP-120 11 

alleged that he sustained a work-related injury while working as a laborer for Mohamed 

Salem, d.b.a. Ballmohd, L.L.C. ("Salem"). The BWC allowed the claim against Salem as 

the employer and ordered the payment of medical benefits and temporary total disability 

("TTD") compensation. The order informed the parties that the decision would become 

final unless a written appeal was received within 14 days and further advised the parties to 

contact "Jolene M" at the BWC's Columbus Service Office with any questions. Id. at ¶ 4. 

{¶ 31} With the help of a friend, Salem telephoned Jolene about filing an appeal. 

Salem asserted that there was no employer-employee relationship. The documents faxed 

to the BWC failed to include the claim number or the date of the order being appealed. 

Upon receipt, the words "construe as appeal" were hand-written on the cover page and 

forwarded to the appeals section of the commission. Id. at ¶ 5. 

{¶ 32} Ultimately, the commission concluded that Salem's appeal substantially 

complied with the requirements of R.C. 4123.511(F) and further found that there was no 

evidence that Alhamarshah had been prejudiced by any omission in the notice of appeal. 

The commission then disallowed the claim on the merits, finding that Alhamarshah was 

not an employee of Salem and the commission affirmed that order. Alhamarshah 

appealed to the Franklin County Court of Common Pleas pursuant to R.C. 4123.512 and 

filed a complaint for a writ of mandamus in the Franklin County Court of Appeals, 

alleging that the commission's order determining that Salem's administrative appeal was 

valid was an abuse of discretion and contrary to law. 

{¶ 33} Ultimately, the Supreme Court of Ohio determined that Alhamarshah was 

not entitled to relief in mandamus because he had an adequate remedy in the ordinary 

course of law by way of appeal under R.C. 4123.512, stating: 

Once the commission has issued a final order determining 

the claimant's entitlement to participate in the workers' 

compensation fund, any party may appeal the order, except 

for decisions as to the extent of disability, to the court of 

common pleas pursuant to R.C. 4123.512. R.C. 4123.511(E) 

and 4123.512(A); State ex rel. Liposchak v. Indus. Comm.,

90 Ohio St.3d 276, 278–279, 737 N.E.2d 519 (2000). This 

court has held that decisions determining an employee's 

right to participate in the workers' compensation system 

because of a specific injury or occupational disease are 

appealable to the court of common pleas. Felty v. AT & T 

Technologies, Inc., 65 Ohio St.3d 234, 602 N.E.2d 1141 
No. 15AP-120 12 

(1992), paragraph one of the syllabus; Afrates v. Lorain, 63 

Ohio St.3d 22, 26, 584 N.E.2d 1175 (1992). 

The lack of an adequate remedy in the ordinary course of the 

law is a necessary prerequisite for relief in mandamus. State 

ex rel. Consolidation Coal Co. v. Indus. Comm., 18 Ohio 

St.3d 281, 284, 480 N.E.2d 807 (1985), citing State ex rel. 

Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 88, 218 N.E.2d 428 

(1966). When the relator has a plain and adequate remedy at 

law by way of appeal, courts lack authority to exercise 

jurisdictional discretion and must deny the writ, regardless 

of whether the relator used the remedy. Id.; State ex rel. 

Davet v. Sutula, 8th Dist. Cuyahoga No. 96548, 2011-Ohio2803, 2011 WL 2409641, ¶ 10. This is a threshold question 

that we must consider even when the court of appeals has 

not addressed the issue. State ex rel. Woodbury v. Spitler,

40 Ohio St.2d 1, 3, 318 N.E.2d 165 (1974). 

In this case, the commission decided that the documentation 

submitted on behalf of the purported employer substantially 

complied with the statutory requirements for a notice of an 

appeal of the bureau's initial order. This decision conferred 

jurisdiction on the commission to proceed to consider the 

merits of the purported employer's appeal. The commission's 

exercise of jurisdiction resulted in a decision denying the 

claimant's right to participate in the workers' compensation 

system. Consequently, the decision allowing the appeal to 

proceed was essential to the ultimate determination that 

denied the claimant's participation in the workers' 

compensation system. As such, the commission's decision to 

accept the appeal as valid was appealable pursuant to R.C. 

4123.512. See Consolidation Coal Co. at 284-285, 480 

N.E.2d 807. 

Id. at ¶ 10-12. 

{¶ 34} Recently, in State ex rel. Johnson v. OSU Cancer Research Hosp., 10th Dist. 

No. 14AP-430, 2015-Ohio-3249, this court addressed the applicability of the recent 

Supreme Court of Ohio decision in Alhamarshah. 

{¶ 35} Eleanorene Johnson suffered an industrial injury in 2010 and her claim was 

allowed for the following physical condition: sprain lumbosacral. On August 23, 2013, 

Johnson filed a C-86 motion requesting that her claim be additionally allowed for the 

following psychological condition: major depression, single episode, non-psychotic, 

severe. A DHO disallowed Johnson's request. The matter came before the SHO on 
No. 15AP-120 13 

October 18, 2013. The SHO granted Johnson's request and additionally allowed her claim 

to include the requested psychological condition. OSU attempted to appeal the SHO's 

order, but the commission refused the appeal. 

{¶ 36} OSU then filed a request for reconsideration with the commission. On 

January 9, 2014, the commission issued an order vacating the SHO's order and setting the 

matter for a hearing. The commission concluded that the SHO's order contained a clear 

mistake of law, as it failed to find that the requested psychological condition was causally 

related to the allowed physical condition. The commission accordingly granted OSU's 

request for reconsideration, and denied Johnson's request for the additional allowance. 

{¶ 37} Johnson filed a mandamus action in this court asserting that the 

commission abused its discretion when it granted OSU's request for reconsideration and 

asked that the commission be ordered to reinstate the SHO's order which allowed her 

claim for the psychological condition. 

{¶ 38} OSU argued that this court did not have jurisdiction to hear the matter 

asserting that it was a right to participate and that Johnson had an adequate remedy at 

law. As OSU asserted, if this court found the commission abused its discretion when it 

determined the SHO's order contained a clear mistake of law, Johnson's claim would be 

additionally allowed for a psychological condition and OSU would have to challenge that 

allowance in common pleas court. 

{¶ 39} This court's magistrate found this court did have jurisdiction finding that 

the commission's determination that it had continuing jurisdiction was reviewable here in 

mandamus and could not be challenged elsewhere. Thereafter, the magistrate found that 

the commission did not abuse its discretion when it exercised its continuing jurisdiction. 

{¶ 40} OSU filed an objection to the magistrate's decision and argued that, 

pursuant to the Supreme Court of Ohio's recent decision in Alhamarshah, this court 

should find that mandamus relief was inappropriate because Johnson had an adequate 

remedy at law. Finding that the commission's decision to exercise its continuing 

jurisdiction resulted in a decision which denied Johnson the right to participate in the 

workers' compensation system, this court found that the commission's decision was 

"essential to the ultimate determination that denied [Johnson's] participation in the 

workers' compensation system," and mandamus relief was inappropriate as Johnson had 
No. 15AP-120 14 

an adequate remedy in the ordinary course of law by way of an appeal under R.C. 

4123.512. Id. at ¶ 12. 

{¶ 41} In the present case, just as in Alhamarshah, the commission has denied 

relator's request to participate (for a specific condition) in the workers' compensation 

system. As in Alhamarshah, relator has appeals pending in the common pleas court 

pursuant to R.C. 4123.512. As in Alhamarshah, relator has also filed a mandamus action 

in this court asserting that the commission's orders, which ultimately denied her the right 

to participate, constitute an abuse of discretion and asks this court to order the 

commission to consider her request to participate in the workers' compensation system 

on its merits. As in Alhamarshah, the commission's orders here were essential to the 

ultimate determination that denied relator's participation in the workers' compensation 

system and is appealable pursuant to R.C. 4123.512. 

{¶ 42} Based on the foregoing, it is this magistrate's decision that relator has an 

adequate remedy in the ordinary course of law by way of appeal to the common pleas 

court and, as such, is not entitled to a writ of mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court's adoption of any factual finding or 

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).