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

ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm., Slip Opinion No. 2016-Ohio-343.] 

NOTICE 

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

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

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

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

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

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-343

THE STATE EX REL. OLD DOMINION FREIGHT LINE, INC., APPELLANT, v.

INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES. 

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

may be cited as State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm.,

Slip Opinion No. 2016-Ohio-343.] 

Workers’ compensation―Permanent total disability―Industrial Commission’s 

failure to send employer’s medical reports to independent examining 

physicians before their examination of claimant―Failure was not 

prejudicial to employer when commission provided reports to independent 

examining physicians after their examination requesting reconsideration in 

light of employer’s evidence―Commission did not abuse discretion in 

refusing employer’s request to depose independent examining physicians.

(No. 2014-1159 — Submitted September 15, 2015 — Decided February 2, 2016.) 

APPEAL from the Court of Appeals for Franklin County, No. 11AP-350, 

2014-Ohio-2278. 

_______________________
SUPREME COURT OF OHIO

2

Per Curiam. 

{¶ 1} Appellant, Old Dominion Freight Line, Inc., filed a complaint in the 

Tenth District Court of Appeals for a writ of mandamus that would require appellee 

the Industrial Commission of Ohio to vacate its award of permanent-total-disability 

compensation to appellee Robert L. Mason. 

{¶ 2} The court of appeals denied the writ, concluding that Old Dominion 

did not have a clear legal right to the relief requested and the commission did not 

have a corresponding duty to provide such relief. For the reasons that follow, we 

affirm. 

{¶ 3} Mason was injured on January 18, 2005, when he slipped on ice and 

broke his hip while working as a truck driver for Old Dominion. His claim was 

allowed for hip fracture, femur fracture, femoral neck fracture, depressive disorder, 

left short-leg syndrome, lumbar strain, and posttraumatic stress disorder. 

{¶ 4} Mason applied for permanent-total-disability compensation in 2007, 

but the commission denied his application. He applied again in July 2009. Old 

Dominion notified the commission that it intended to submit medical evidence 

opposing the application. On September 22, 2009, the employer filed with the 

commission reports from Richard H. Clary, M.D. (psychiatrist), Oscar F. Sterle, 

M.D. (orthopedic surgeon), and Michael A. Murphy, Ph.D. (psychologist) who had 

all examined the claimant on behalf of the employer. 

{¶ 5} The commission scheduled independent medical exams for Mason 

with William R. Fitz, M.D. (for his physical injuries) and with John M. Malinky, 

Ph.D. (for psychological injuries). On September 23, 2009, the commission mailed 

Dr. Fitz a confirmation of an October 7 appointment along with a copy of Mason’s 

medical records, but it did not forward the reports that had been filed by Old 

Dominion. On October 5, 2009, the commission sent a similar confirmation to Dr. 

Malinky confirming an October 21 appointment. 
January Term, 2016 

3

{¶ 6} When Old Dominion learned that neither Dr. Fitz nor Dr. Malinky had 

received the medical reports it submitted, Old Dominion asked to depose the 

doctors. The commission denied the requests. Instead, the commission sent copies 

of the reports from Drs. Sterle, Murphy, and Clary to Dr. Malinky and asked 

whether the reports caused him to change his original opinion. Dr. Malinky stated 

that his opinion remained the same. The commission sent the reports of Drs. Sterle 

and Murphy to Dr. Fitz (the report of Dr. Clary was not sent), who likewise replied 

that the supplemental information had not changed his opinion. 

{¶ 7} The commission granted Mason’s application for permanent-totaldisability compensation based on the opinions of the commission specialists, Drs. 

Fitz and Malinky. 

{¶ 8} Old Dominion’s complaint alleged that the reports of Drs. Fitz and 

Malinky were flawed because the doctors did not review the reports of the 

employer’s medical experts before examining the claimant. Therefore, Old 

Dominion alleged, the award of permanent-total-disability compensation was an 

abuse of discretion. 

{¶ 9} The court of appeals determined that it was not prejudicial to the 

employer for the commission to ask an examining physician who has already 

performed an initial physical examination to consider additional medical records 

when the commission, in good faith, had failed to submit all the medical records in 

advance. The appellate court remanded the case to the magistrate to review 

remaining arguments, including the sufficiency of the medical evidence. State ex 

rel. Old Dominion Freight Line, Inc. v. Indus. Comm., 10th Dist. Franklin No. 

11AP-350, 2012-Ohio-2403 (“Old Dominion I”). 

{¶ 10} Old Dominion filed an appeal that we, sua sponte, dismissed for lack 

of a final, appealable order. 137 Ohio St.3d 467, 2013-Ohio-4655, 1 N.E.3d 332. 

{¶ 11} On remand, a magistrate determined that based on Old Dominion I,

the employer suffered no prejudice when the commission submitted its medical 
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4

reports after the examinations and that Old Dominion’s request to depose the 

doctors was unreasonable. The magistrate also concluded that the commission did 

not abuse its discretion when the hearing officer stated that he “particularly note[d]” 

the opinions of the claimant’s doctors, Richard M. Ward, M.D., Charles B. May, 

D.O., and Lee Howard, Ph.D., in evaluating the credibility of the Fitz and Malinky 

reports. 

{¶ 12} The court of appeals overruled the objections filed by Old Dominion, 

adopted the magistrate’s decision, and denied the request for a writ of mandamus. 

{¶ 13} This matter is before the court on the appeal as of right filed by Old 

Dominion. 

{¶ 14} To be entitled to extraordinary relief in mandamus, a relator must 

establish a clear legal right to the relief requested and a clear legal duty on the part 

of the commission to provide such relief. State ex rel. McCormick v. McDonald’s,

141 Ohio St.3d 528, 2015-Ohio-123, 26 N.E.3d 794, ¶ 12. Old Dominion is entitled 

to a writ if it demonstrates that the commission abused its discretion by entering an 

order not supported by “some evidence” in the record. State ex rel. Avalon 

Precision Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, 846 

N.E.2d 1245, ¶ 9. 

{¶ 15} The commission relied on the reports of Drs. Fitz and Malinky as 

evidence supporting its award of permanent-total-disability compensation. Old 

Dominion maintains that the reports were flawed because the doctors did not review 

the defense medical reports in advance of their independent medical examinations. 

According to Old Dominion, Ohio Adm.Code 4121-3-34(C)(2) mandates that the 

commission submit the medical evidence to its examining physicians in advance of 

their examinations, and the commission’s failure to do so prejudiced Old 

Dominion’s ability to defend against the application for permanent-total-disability 

benefits. Old Dominion maintains that the only reasonable way to cure this failure 

was to permit Old Dominion to depose each doctor. 
January Term, 2016 

5

A. Supplementing Medical Evidence after the Independent Medical 

Examinations Did Not Prejudice Old Dominion 

{¶ 16} The commission concedes that it inadvertently failed to forward 

copies of the defense medical reports prior to the examinations, but maintains that 

it cured the oversight by submitting the reports to the examining doctors after the 

examinations and asking them for addendum opinions. 

{¶ 17} Ohio Adm.Code 4121-3-34(C)(2) requires the commission to serve 

a copy of the application for permanent-total-disability benefits and supporting 

documents on the claimant’s employer. The employer then has 14 days to notify 

the commission if it intends to submit medical evidence in response. Ohio 

Adm.Code 4121-3-34(C)(4)(b). If so, the evidence must be filed within 60 days. 

Id. 

{¶ 18} Ohio Adm.Code 4121-3-34(C)(5)(a) requires the claims examiner to 

schedule a medical examination of the injured worker and submit all relevant 

documents, including medical evidence from the employer, to the examining 

physician selected by the commission. Scheduling may not be delayed if the 

employer does not send a 14-day notice of intent to file its own medical evidence. 

{¶ 19} Here, Old Dominion notified the commission that it intended to 

submit medical reports and timely filed three medical reports by the September 22, 

2009 deadline. The claims examiner scheduled independent medical examinations 

with Drs. Fitz and Malinky, but did not send all the medical evidence in advance of 

the examinations. Old Dominion maintains that had the doctors read the defense 

medical reports before the examinations, their opinions may have differed. 

{¶ 20} There is no dispute that the commission should have sent Old 

Dominion’s medical evidence to the examining physicians when it sent Mason’s 

records, but it did not. But Drs. Fitz and Malinky personally examined Mason and 

presumably each reached an opinion regarding permanent and total disability based 

on their own exams of the claimant, not the findings of other physicians. Old 
SUPREME COURT OF OHIO

6

Dominion provided no evidence that its medical reports would have changed the 

doctors’ opinions had they received the reports in advance of their examinations. 

{¶ 21} Ohio Adm.Code 4121-3-34 does not prohibit submitting 

supplemental information to physicians. It is not uncommon for a physician to 

issue, and the commission to accept, an addendum or a supplemental report after a 

medical examination. See State ex rel. Kish v. Kroger Co., 135 Ohio St.3d 451, 

2013-Ohio-1931, 989 N.E.2d 45. 

{¶ 22} Once the commission realized its inadvertent omission, it cured any 

potential problem by sending the relevant records to the doctors and requesting 

addendum reports. Old Dominion merely speculates that the doctors’ opinions 

could have been different. We agree with the appellate court that Old Dominion 

failed to demonstrate that it was prejudiced by the commission’s delay in sending 

the records. 

B. Old Dominion’s Request to Depose Doctors was Not Reasonable 

{¶ 23} Old Dominion argues that the only reasonable way to cure the 

commission’s failure was to permit Old Dominion to depose each doctor. Because 

Old Dominion suffered no prejudice when the commission submitted its medical 

records to Drs. Fitz and Malinky after the examinations were performed, Old 

Dominion’s request to depose each doctor was unreasonable and properly denied. 

{¶ 24} A party who wants to depose a commission physician must make a 

written request with the reasons for the deposition. Ohio Adm.Code 4121-3-

09(A)(8)(a) and (b).1

 Whether to grant a deposition request is within the discretion 

of the commission. Ohio Adm.Code 4121-3-09(A)(8)(c). The commission reviews 

a request under a reasonableness standard: 

 

1

 Old Dominion made its request to take the depositions in November 2009. At that time, the 

provisions of the current Ohio Adm.Code 4121-3-09(A)(8) appeared in subsection (A)(7). See

former Ohio Adm.Code 4121-3-9(A)(7), 2007-2008 Ohio Monthly Record 2-3151, effective June 

1, 2008. There is no substantive difference between the two versions. 
January Term, 2016 

7

[W]hen determining the reasonableness of the request for deposition 

or interrogatories the hearing administrator shall consider whether 

the alleged defect or potential problem raised by the applicant can 

be adequately addressed or resolved by the claims examiner, hearing 

administrator, or hearing officer through the adjudicatory process 

within the commission or the claims process within the bureau of 

workers’ compensation. 

Ohio Adm.Code 4121-3-09 (A)(8)(d). 

{¶ 25} Here, the hearing officer concluded that any potential defect with the 

report of Dr. Malinky could be remedied by Old Dominion by other means. With 

respect to the request to depose Dr. Fitz, the failure to send the psychiatric report 

of Dr. Clary was not a sufficient reason to depose Dr. Fitz, who had examined the 

claimant’s physical conditions. Therefore, the commission did not abuse its 

discretion when it denied the requests to depose Dr. Malinky and Dr. Fitz as 

unreasonable. 

C. The Fitz and Malinky Reports Constituted Some Evidence of Permanent 

Total Disability 

{¶ 26} Finally, Old Dominion maintains that the reports of Drs. Ward, May, 

and Howard are inconsistent and flawed, and the commission abused its discretion 

when it used these reports to evaluate the credibility of the reports of Drs. Fitz and 

Malinky. 

{¶ 27} In an order granting or denying benefits, the commission is required 

to state the evidence upon which it relied to reach its conclusion and to briefly 

explain why the claimant is or is not entitled to the benefits requested. State ex rel. 

Noll v. Indus. Comm., 57 Ohio St.3d 203, 567 N.E.2d 245 (1991). The commission 
SUPREME COURT OF OHIO

8

has the exclusive authority to evaluate the weight and credibility of the evidence. 

State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 508 N.E.2d 936 (1987). 

{¶ 28} Here, the hearing officer relied on the reports of Drs. Fitz and 

Malinky in reaching the conclusion that the claimant was permanently and totally 

disabled. In explaining the basis for his decision, the hearing officer provided 

insight into the factors he considered while evaluating the credibility of the Fitz and 

Malinky opinions. The hearing officer noted the reports from Drs. Ward, May, and 

Howard, who also had concluded that the claimant was permanently and totally 

disabled. The hearing officer further noted that the claim was allowed for “a very 

serious left hip fracture, and also for psychological conditions, notably post 

traumatic stress disorder, together with some physical conditions related to the 

allowed hip fracture.” Finally, the hearing officer considered the claimant’s prior 

application for permanent-total-disability benefits that was denied in 2007, the 

medical evidence submitted by the employer, and the arguments regarding the 

sufficiency of the evidence. 

{¶ 29} A reviewing court’s role is to determine whether there is some 

evidence in the record supporting the commission’s decision. When doing so, a 

court must not second-guess the commission’s evaluation of the evidence. State ex 

rel. Black v. Indus. Comm., 137 Ohio St.3d 75, 2013-Ohio-4550, 997 N.E.2d 536, 

¶ 22. Here, the commission relied on the reports of Drs. Fitz and Malinky. Because 

those reports constitute some evidence to support an award of compensation for 

permanent total disability, Old Dominion’s argument fails. 

{¶ 30} Because Old Dominion failed to establish a clear legal right to the 

relief requested and a clear legal duty on the part of the commission to provide such 

relief, we affirm the judgment of the court of appeals. 

 Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, and O’NEILL, JJ., concur. 

LANZINGER and KENNEDY, JJ., dissent. 
January Term, 2016 

9

FRENCH, J., not participating. 

___________________ 

LANZINGER, J., dissenting. 

{¶ 31} I agree with Justice Kennedy that the employer in this case was 

prejudiced when the Industrial Commission failed to provide the medical 

evaluation reports submitted by the employer to the examining physicians as 

required by Ohio Adm.Code 4121-3-34(C)(5)(a)(ii) and that we should reverse the 

judgment of the Tenth District Court of Appeals and grant the writ of mandamus. 

However, instead of striking the reports of Drs. Fitz and Malinky, I would remand 

the cause and order the commission to grant Old Dominion’s requests for 

depositions and then hold a new hearing on the application for benefits for 

permanent total disability. 

{¶ 32} While there is no provision for excluding medical reports from 

consideration at a hearing when a procedural rule of the commission is not 

followed, Ohio Adm.Code 4121-3-09(A)(8) does set forth a procedure for 

obtaining the depositions of bureau physicians. This is, in fact, the remedy that Old 

Dominion requested. Instead of granting this reasonable request, the commission 

asked Drs. Fitz and Malinky to supplement their reports. It is no surprise that they 

responded that their opinions had not changed. 

{¶ 33} The majority tacitly holds that sending reports four months after the 

bureau’s physicians concluded their examinations was a sufficient cure for the rule 

violation. I do not agree. It is undisputed that the doctors did not review the reports 

of the Old Dominion’s medical experts before examining the claimant, Robert L. 

Mason, as the rule required them to do. Old Dominion maintains that had the 

doctors read the defense medical reports before the examinations, their opinions 

may have differed. The majority opinion faults Old Dominion because it “provided 

no evidence that its medical reports would have changed the doctors’ opinions had 

they received the reports in advance of their examinations.” Majority opinion at 
SUPREME COURT OF OHIO

10 

¶ 20. The majority then remarks that “[b]ecause Old Dominion suffered no 

prejudice when the commission submitted its medical records to Drs. Fitz and 

Malinky after the examinations were performed, Old Dominion’s request to depose 

each doctor was unreasonable and properly denied.” Majority opinion at ¶ 23. 

That, however, is the very point—without the depositions, Old Dominion was 

precluded from obtaining the evidence to show that it was prejudiced. 

{¶ 34} I respectfully submit that this is flawed logic. The commission 

clearly erred when it failed to provide the medical evaluations submitted by Old 

Dominion to Drs. Fitz and Malinky before their examinations. The commission 

then compounded this error by abusing its discretion when it denied Old 

Dominion’s request to depose the doctors. I would hold that when Ohio Adm.Code 

4121-3-34(C)(5)(a)(ii) is not followed, the employer should be permitted to depose 

the bureaus’ physicians. 

___________________ 

KENNEDY, J., dissenting. 

{¶ 35} Respectfully, I dissent. When an employer provides timely notice 

of its intent to submit medical reports on the claimant’s alleged permanent total 

disability and timely submits those reports pursuant to Ohio Adm.Code 4121-3-

34(C)(4)(b), but the Industrial Commission, to the prejudice of the employer, fails 

to provide those evaluation reports to its examining physicians prior to their 

examinations as required by Ohio Adm.Code 4121-3-34(C)(5)(a)(ii), the 

commission’s reports should be stricken. Therefore, I would reverse the judgment 

of the Tenth District Court of Appeals and grant the writ of mandamus ordering the 

commission to vacate its staff hearing officer’s order of March 16, 2010, awarding 

permanent-total-disability (“PTD”) compensation and to conduct further 

proceedings without considering the reports of Drs. Fitz and Malinky. 

{¶ 36} Once the Bureau of Workers’ Compensation and the commission 

adopt rules, they “must follow their own rules as written.” State ex rel. H.C.F., Inc. 
January Term, 2016 

11 

v. Ohio Bur. of Workers’ Comp., 80 Ohio St.3d 642, 647, 687 N.E.2d 763 (1998). 

See also Brooks v. Ohio Bd. of Embalmers & Funeral Dirs., 69 Ohio App.3d 568, 

572, 591 N.E.2d 301 (10th Dist.1990) (“an agency is required to comply with the 

substantive requirements of its own regulations”). 

{¶ 37} One of the purposes of the commission’s rule establishing the 

process for determining a PTD claim is to “ensure that applications * * * are 

processed and adjudicated in a fair and timely manner.” (Emphasis added.) Ohio 

Adm.Code 4121-3-34(A). When evaluating a claimant’s application for PTD 

benefits, the commission chooses an examining physician or physicians. See Ohio 

Adm.Code 4121-3-34(C)(5)(a)(iii). 

{¶ 38} The rule also permits the claimant’s employer to provide 

independent “medical evidence” to the commission. Ohio Adm.Code 4121-3-

34(C)(4)(b). If the employer timely files notice that it intends to submit medical 

evidence and then provides that evidence to the commission, the commission is 

required to submit that medical evidence to its examining doctor, prior to his or her 

examination of the claimant. See Ohio Adm.Code 4121-3-34(C)(4)(b) (only where 

an employer fails to give timely notice of its intent to submit medical evidence is 

the examination with the examining doctor scheduled “without delay”). 

{¶ 39} In this case, it is undisputed that the employer, Old Dominion, timely 

notified the commission that it intended to submit medical evidence and then 

submitted that evidence. Notably, Old Dominion’s medical evidence included 

reports from three doctors: Richard H. Clary, a psychiatrist; Oscar F. Sterle, an 

orthopedic surgeon; and Michael A. Murphy, a psychologist. All three had 

examined the claimant and had reached conclusions that were adverse to his 

application for PTD. However, the commission failed to deliver Old Dominion’s 

medical evaluations to the doctors selected by the commission, Drs. William R. Fitz 

and John M. Malinky (“examining doctors”) prior to their examination of the 

claimant. 
SUPREME COURT OF OHIO

12 

{¶ 40} Approximately four months after receiving the examining doctors’ 

evaluation reports, the commission attempted to cure the defect. It sent all three of 

the employer’s reports to Dr. Malinky and two of the three to Dr. Fitz and asked 

them whether these reports changed their opinions that the claimant was not 

permanently and totally disabled. Both responded summarily in a handwritten note 

on the form that they had reviewed these reports and that they did not change their 

opinion. 

{¶ 41} In affirming the Tenth District, the majority asserts that Ohio 

Adm.Code 4121-3-34 does not prohibit submitting supplemental information to 

physicians. Thereafter, the majority concludes that because the commission cured 

the defect and because Old Dominion’s claim of prejudice was speculative, the 

commission did not abuse its discretion in awarding the claimant PTD 

compensation. 

{¶ 42} This determination, however, is diametrically opposed to our 

previous holding that once the commission adopts rules, it must follow its own rules 

as written. State ex rel. H.C.F., 80 Ohio St.3d at 647, 687 N.E.2d 763. The 

procedures to be followed in the commission’s rule establishing the process for 

determining a PTD claim depend in part on an employer’s compliance with the rule. 

Ohio Adm.Code 4121-3-34(C)(4)(b). If an employer timely files notice of its intent 

to submit medical evidence and then submits that evidence, the commission must 

forward that medical evidence to the examining doctor, prior to his or her 

examination of the claimant. See id. But if the employer fails to timely give notice 

of its intent to submit medical evidence, the commission will “without delay” 

schedule its medical examination, id., and the employer’s reports are submitted 

when received. The result is that a compliant employer get its medical evidence 

considered by the examining doctor before the doctor examines the claimant, while 

the dilatory employer may not have its evidence considered by the examining 

doctor until after the examination has occurred. 
January Term, 2016 

13 

{¶ 43} It is undisputed that Old Dominion is a compliant employer, but the 

majority’s holding treats it otherwise. The majority’s holding erodes not only the 

administrative rule at issue, but the principle that “[a]dministrative regulations 

issued pursuant to statutory authority have the force and effect of law; 

consequently, administrative agencies are bound by their own rules until those rules 

are duly changed.” State ex rel. Cuyahoga Cty. Hosp. v. Ohio Bur. of Workers’ 

Comp., 27 Ohio St.3d 25, 28, 500 N.E.2d 1370 (1986). 

{¶ 44} As the magistrate stated, 

The commission’s rules do not provide for addendum 

reports of the commission’s examining physicians when the 

commission fails to follow its own rules regarding submission of 

the employer’s medical records to the commission’s examining 

physicians. Thus, the commission fashioned a remedy for this 

occasion in the hope that the addendum reports would cure the 

problem. In the magistrate’s view, the addendum reports do not 

cure the problem. 

We do not know, and cannot ever know, to what extent 

the timely receipt of relator’s medical evidence by Drs. Fitz and 

Malinky prior to their respective examinations would have 

influenced the medical conclusions drawn by those physicians in 

their reports. We only know that the employer’s medical 

evidence did not change the medical conclusions of Drs. Fitz and 

Malinky when those doctors were asked to reconsider their 

conclusions after reviewing the employer’s medical records. 
SUPREME COURT OF OHIO

14 

State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm., 10th Dist. Franklin 

No. 11AP-350, 2012-Ohio-2403, ¶ 56-57, cause dismissed, 137 Ohio St.3d 467, 

2013-Ohio-4655, 1 N.E.3d 332. 

{¶ 45} I agree with the magistrate that the commission must follow its own 

rules and that the commission’s failure to do so prejudiced Old Dominion’s right to 

challenge the claimant’s PTD application. 

{¶ 46} For the aforementioned reasons, I would hold that when an employer 

provides timely notice of its intention to submit medical evaluation reports of the 

claimant and timely submits the reports pursuant to Ohio Adm.Code 4121-3-

34(C)(4)(b), but the commission, to the prejudice of the employer, fails to provide 

those reports to its examining physicians prior to their examinations as required by 

Ohio Adm.Code 4121-3-34(C)(5)(a)(ii), the commission’s reports must be stricken. 

Therefore, I would reverse the judgment of the Tenth District Court of Appeals and 

grant the writ of mandamus ordering the commission to vacate its staff hearing 

officer’s order of March 16, 2010, awarding PTD compensation and to conduct 

further proceedings without considering the reports of Drs. Fitz and Malinky. 

{¶ 47} Accordingly, I respectfully dissent. 

___________________ 

Eastman & Smith, Ltd., Mark A. Shaw, and Melissa A. Ebel, for appellant. 

Connor, Evans & Hafenstein, L.L.P., Nicole E. Rager, and Katie W. 

Kimmet, for appellee Robert L. Mason. 

Michael DeWine, Attorney General, and Eric Tarbox, Assistant Attorney 

General, for appellee Industrial Commission. 

___________________