[Cite as State ex rel. Bennett v. Indus. Comm., 2016-Ohio-83.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Flora Bennett, : 

 

 Relator, : 

 

v. : No. 14AP-632 

 

Aldi, Inc., Ohio and : (REGULAR CALENDAR) 

Industrial Commission of Ohio, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on January 12, 2016

 

Ronald E. Slipski and Charles Oldfield, for relator. 

Weston Hurd, LLP, and Michael J. Spisak, for respondent 

Aldi, Inc., Ohio. 

Michael DeWine, Attorney General, and John R. Smart, for 

respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

 

DORRIAN, P.J. 

{¶ 1} Relator, Flora Bennett, filed this original action, naming as respondents the 

Industrial Commission of Ohio ("commission"), and her employer, Aldi, Inc., Ohio 

("Aldi"). Relator requests a writ of mandamus ordering the commission to vacate its order 

granting the request of Aldi for reconsideration, to reinstate the order of the staff hearing 

officer ("SHO"), and to award permanent total disability ("PTD") compensation to her. 

{¶ 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. 14AP-632 2 

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

that this court grant the writ of mandamus. 

{¶ 3} The commission sets forth one objection to the magistrate's decision: 

The magistrate erred in substituting her judgment for that of 

the commission on factual matters by finding the SHO had 

relied on only the non-defective portion of Dr. Novak's report. 

{¶ 4} Aldi sets forth three objections to the magistrate's decision: 

1. The SHO should not have relied upon Mr. Ruth's report to 

evaluate Bennett's non-medical disability factors. 

2. The SHO incorrectly applied Dr. Gade-Pulido's conclusions. 

3. The SHO did not discuss Bennett's failure to attempt 

vocational rehabilitation. 

{¶ 5} Neither the commission nor Aldi objects to the magistrate's findings of fact 

and, therefore, we adopt them as our own. 

{¶ 6} To obtain a writ of mandamus, a relator must demonstrate that it has a clear 

legal right to the relief sought and that the commission has a clear legal duty to provide 

such relief. State ex rel. AutoZone, Inc. v. Indus. Comm., 117 Ohio St.3d 186, 2008-Ohio541. "To show the clear legal right, relator must demonstrate that the commission abused 

its discretion by entering an order unsupported by some evidence in the record." State ex 

rel. Hughes v. Goodyear Tire & Rubber Co., 26 Ohio St.3d 71, 73 (1986). When the record 

contains "some evidence" to support the commission's factual findings, a court may not 

disturb the commission's findings in mandamus. State ex rel. Fiber-Lite Corp. v. Indus 

Comm., 36 Ohio St.3d 202 (1988), syllabus. " 'Where a commission order is adequately 

explained and based on some evidence, * * * the order will not be disturbed as 

manifesting an abuse of discretion.' " State ex rel. Avalon Precision Casting Co. v. Indus. 

Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, ¶ 9, quoting State ex rel. Mobley v. Indus. 

Comm., 78 Ohio St.3d 579, 584 (1997). 

{¶ 7} R.C. 4123.52 governs the continuing jurisdiction of the industrial 

commission, providing that "[t]he jurisdiction of the industrial commission and the 

authority of the administrator of workers’ compensation over each case is continuing, and 

the commission may make such modification or change with respect to former findings or 
No. 14AP-632 3 

orders with respect thereto, as, in its opinion is justified." However, "[c]ontinuing 

jurisdiction is not unlimited." State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 

458-59 (1998), citing State ex rel. B & C Machine Co. v. Indus. Comm., 65 Ohio St.3d 538 

(1992). The commission may exercise continuing jurisdiction where one of the following 

prerequisites is present: "(1) new and changed circumstances, (2) fraud, (3) clear mistake 

of fact, (4) clear mistake of law, or (5) error by inferior tribunal." State ex rel. Gobich v. 

Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, ¶ 15, citing Nicholls at 459. 

{¶ 8} In Gobich, the Supreme Court of Ohio provided further instruction on the 

applicability of the commission's continuing jurisdiction: 

The presence of one of these prerequisites must be clearly 

articulated in any commission order seeking to exercise 

reconsideration jurisdiction. This means that the prerequisite 

must be both identified and explained. It is not enough to say, 

for example, that there has been a clear error of law. The order 

must also state what that error is. This ensures that the party 

opposing reconsideration can prepare a meaningful defense to 

the assertion that continuing jurisdiction is warranted. It also 

permits a reviewing court to determine whether continuing 

jurisdiction was properly invoked. 

(Internal citations omitted.) Id. at ¶ 15. See also State ex rel. Robertson v. Indus. Comm., 

10th Dist. No. 05AP-479, 2006-Ohio-3553, ¶ 14. Thus, we must consider whether the 

commission clearly identified and explained the prerequisite for its exercise of continuing 

jurisdiction. Gobich at ¶ 15. When the commission identifies a clear mistake of law as the 

basis for its continuing jurisdiction we must consider: "(1) Was there a mistake? (2) If so, 

was it clear?" Id. at ¶ 17. 

{¶ 9} The commission's exercise of continuing jurisdiction is subject to abuse-ofdiscretion review. State ex rel. Allied Sys. Holdings v. Donders, 10th Dist. No. 11AP-960, 

2012-Ohio-5855, ¶ 6, citing State ex rel. Akron Paint & Varnish, Inc. v. Gullotta, 131 Ohio 

St.3d 231, 2012-Ohio-542. An abuse of discretion occurs when a decision is unreasonable, 

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶ 10} In its September 28, 2013 order, the commission stated that it was 

exercising continuing jurisdiction based upon a clear mistake of law. Speficically, the 

commission found that the SHO's "reliance on the 07/24/2012 report of Glen Novak, 
No. 14AP-632 4 

D.O., was improper, as Dr. Novak used an incorrect standard for assessing whether the 

Injured Worker is capable of sustained remunerative employment, by finding the Injured 

Worker could not work an eight hour a day/40 hour a week job." 

{¶ 11} In its objection, the commission argues that the magistrate erred by 

substituting her judgment for that of the commission by finding that the SHO only relied 

on the non-defective portion of Dr. Novak's report. In support of this contention, the 

commission argues that "[i]t is quite clear that the SHO made a mistake of law in relying 

upon a doctor's opinion that was based upon an incorrect legal standard, as the 

commission found." (Commission's Objection, 4.) 

{¶ 12} None of the parties dispute that Dr. Novak applied the incorrect standard in 

assessing whether relator was capable of performing sustained remunerative 

employment. However, the record does not reflect that the SHO applied the standard 

used by Dr. Novak in determining whether relator was capable of performing sustained 

remunerative employment. Indeed, contrary to the finding of Dr. Novak that relator was 

incapable of performing work on an eight-hour day, five-days-a-week basis, the SHO 

found, based on the reports of Drs. Novak, Kepple, and Gade-Pulido, that relator "may be 

able to engage in sustained remunerative employment." (SHO's Order, 2.) Based on this 

finding, the SHO stated that "an analysis of * * * non-medical factors is necessary." 

(SHO's Order, 2.) Had the SHO accepted as dispositive the conclusion of Dr. Novak that 

relator was incapable of performing work based upon the incorrect standard, there would 

have been no need for the SHO to examine the non-medical factors. See State ex rel. Gay 

v. Mihm, 68 Ohio St.3d 315, 320 (1994) (finding that the commission must thoroughly 

consider non-medical factors "where a claimant's medical capacity to do work is not 

dispositive"); Ohio Adm.Code 4121-3-34(D)(2)(b) ("If, after hearing, the adjudicator finds 

that injured worker, based on the medical impairment resulting from the allowed 

conditions is unable to return to the former position of employment but may be able to 

engage in sustained remunerative employment, the non-medical factors shall be 

considered by the adjudicator."). 

{¶ 13} Thus, because the SHO did not apply the incorrect standard used by Dr. 

Novak and did not accept the conclusion of Dr. Novak that was based upon that incorrect 

standard, we cannot agree with the commission that the SHO's order contained a mistake 
No. 14AP-632 5 

of law or that such mistake is clear on the face of the SHO's order. Gobich at ¶ 14-17. 

Further, contrary to the commission's argument, this conclusion does not disturb the 

deference ordinarily granted to the commission's factual findings. Rather, our 

examination of the SHO's order is based upon the duty of a reviewing court to determine 

whether the commission properly exercised continuing jurisdiction based upon a clear 

mistake of law. Therefore, after careful and independent review, we find no merit to the 

commission's objection. 

{¶ 14} In its objections to the magistrate's decision, Aldi argues that the SHO 

(1) should not have relied on Mr. Ruth's report, (2) incorrectly applied the conclusions of 

Dr. Gade-Pulido, and (3) failed to discuss relator's lack of vocational rehabilitation. While 

these arguments relate to whether the SHO correctly determined that relator was 

precluded from all sustained remunerative employment, they do not address the issue 

before us: whether the commission abused its discretion when it determined that the 

SHO's decision contained a clear mistake of law by relying on the report of Dr. Novak. The 

commission could have, but did not, state that the SHO's decision contained a mistake of 

law based upon the grounds advanced by Aldi in its three objections. Because the 

commission did not rely on such grounds in order to find that there was a clear mistake of 

law, we find Aldi's objections to be outside the scope of the present matter and, therefore, 

without merit. Gobich at ¶ 15 (finding that the order must state what the clear error of law 

is so that the "party opposing reconsideration can prepare a meaningful defense to the 

assertion that continuing jurisdiction is warranted"). See also Gwinn v. Ohio Elections 

Comm., 187 Ohio App.3d 742, 2010-Ohio-1587, ¶ 18 (10th Dist.) (finding that, like a court, 

an agency speaks through its record); Simmons v. Indus. Comm., 134 Ohio St. 456, 457 

(1938) ("The Industrial Commission, just as a court, speaks through its record."); Rummel 

v. Flowers, 28 Ohio St.2d 230, 236 (1972); Cook v. Mayfield, 45 Ohio St.3d 200, 202 

(1989); Hurless v. Mead Corp., 29 Ohio App.2d 264, 269 (4th Dist.1971). 

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

record, and due consideration of the commission's and Aldi's objections, we find that the 

magistrate has properly determined the pertinent facts and concluded that a writ of 

mandamus is warranted. We, therefore, overrule the commission's and Aldi's objections 

to the magistrate's decision and adopt the findings of fact and conclusions of law of the 
No. 14AP-632 6 

magistrate, with the exception of the first line of the last sentence of ¶ 40 of the appended 

magistrate's decision, where we change the reference to "commission" to "SHO," and the 

first sentence of ¶ 42, which we delete. Accordingly, the requested writ of mandamus is 

hereby granted, directing the commission to vacate its order granting Aldi's request for 

reconsideration and to reinstate the order of the SHO awarding relator PTD 

compensation. 

Objections overruled; writ granted. 

KLATT and BRUNNER, JJ., concur. 

_________________ 

 
No. 14AP-632 7 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Flora Bennett, : 

 

 Relator, : 

 

v. : No. 14AP-632 

 

Aldi, Inc., Ohio and : (REGULAR CALENDAR) 

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 July 27, 2015

 

Ronald E. Slipski and Charles Oldfield, for relator. 

Weston Hurd, LLP, and Michael J. Spisak, for respondent 

Aldi, Inc., Ohio. 

Michael DeWine, Attorney General, and John R. Smart, for 

respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

 

{¶ 16} Relator, Flora Bennett, 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 granting the request of respondent, Aldi Inc., Ohio 

("employer") for reconsideration, to reinstate the order of the staff hearing officer 

("SHO"), and award permanent total disability ("PTD") compensation to her. 
No. 14AP-632 8 

Findings of Fact: 

{¶ 17} 1. Relator has sustained three work-related injuries during the course of her 

employment with the employer and her workers' compensation claims have been allowed 

as follows: 

99-361327: "Sprain of right ribs." 

02-860414: "Sprain of right ankle; contusion of right foot; 

fracture right metatarsal closed." 

04-814518: "Sprain/strain right shoulder; right shoulder 

bursitis; right shoulder impingement syndrome; right rotator 

cuff tear." 

{¶ 18} 2. The most significant of relator's claims is the 2004 claim which is 

allowed for various conditions involving relator's right shoulder. As a result of this injury, 

relator has undergone three separate surgical procedures and is left with significant 

restrictions involving her right upper extremity. 

{¶ 19} 3. On September 5, 2012, relator filed her application for PTD 

compensation. Relator's application was supported by the July 24, 2012 independent 

medical examination prepared by Glen J. Novak, D.O. In his report, Dr. Novak reported 

the following: local tenderness along the superior aspect of the right shoulder; obvious 

wasting of adjacent musculature at the right deltoid; deep tendon reflexes in tact and 

symmetric bilaterally; no hypoesthesia. Active motion testing of the right shoulder 

demonstrated the following: flexion limited to 60 degrees, extension limited to 40 

degrees, abduction limited to 50 degrees, adduction in tact to 50 degrees, external 

rotation limited to 50 degrees, and internal rotation limited to 60 degrees. Ultimately, Dr. 

Novak concluded that relator was not capable of performing sustained remunerative 

employment, stating: 

Having examined this injured worker on 7/24/12 it is within 

a reasonable degree of medical certainty that, in my medical 

opinion, this injured worker is permanently and totally 

impaired from any gainful employment as a result of the 

above conditions. Due to her marked limitations of her right 

shoulder and right lower extremity, in my medical opinion, 

and within a reasonable degree of medical certainty, she is 
No. 14AP-632 9 

not capable of performing the physical demands required for 

an eight hour day, five day a week basis. 

{¶ 20} 4. Relator was also examined by Richard N. Kepple, M.D. In his 

September 24, 2012 report, Dr. Kepple identified the allowed conditions in relator's 

claims, discussed the history of her injuries, and identified the medical records which he 

reviewed. As part of his physical examination, Dr. Kepple noted the following: no 

atrophy or asymmetry in either shoulder; tenderness over the last aspect of the right 

shoulder in the area of the surgical scar; mild generalized discomfort with motion of the 

right shoulder; crepitation with motion of both shoulders; and impingement tests mildly 

positive on the right and negative on the left. Range of motion indicated: flexion at 80 

degrees on the right and 120 degrees on the left, extension 20 degrees on the right and 25 

degrees on the left, abduction 70 degrees on the right and 130 degrees on the left, 

adduction 15 degrees on the right and 40 degrees on the left, internal rotation 25 degrees 

on the right and 40 degrees on the left, and external rotation 70 degrees on the right and 

90 degrees on the left. Dr. Kepple ultimately concluded that relator would be capable of 

engaging in some sustained remunerative employment with permanent restrictions. 

Specifically, Dr. Kepple concluded: 

Ms. Bennett's permanent restrictions are related to her right 

shoulder injury in February 2004. She requires no 

restrictions for the 1999 right rib injury or the 2002 right 

ankle/foot injury as the allowed conditions in both of these 

claims have resolved and reached maximum medical 

improvement. 

Relative to the right shoulder, Ms. Bennett can work in a 

capacity in which activities with the right upper extremity 

are limited to the area between waist and shoulder level. She 

should not lift, carry, push or pull more than 5 pounds with 

her right upper extremity frequently or 10 pounds 

occasionally. Repetitive or continuous activities with the 

right extremity should be avoided unless the right upper 

extremity is supported by a table or counter top. 

{¶ 21} 5. Relator was also examined by Karen Gade-Pulido, M.D. In her 

December 6, 2012 report, Dr. Gade-Pulido identified the allowed conditions in relator's 

claims, discussed the history of her injuries, and identified the medical records which she 
No. 14AP-632 10 

reviewed. After noting that relator was guarded with range of motion of the right 

shoulder, but willing to participate in an assessment, Dr. Gade-Pulido noted the following 

physical findings upon examination: a lack of joint effusion, flexion 160 degrees, 

extension 40 degrees, abduction 160 degrees, adduction 40 degrees, external rotation 70 

degrees, and internal rotation 80 degrees. Dr. Gade-Pulido indicated there was no 

evidence of atrophy in the right upper extremity with normal bulk and tone of the 

muscles, and that relator had full range of motion of her right elbow, wrist and hand, and 

there was no evidence of edema in the upper extremity. Thereafter, Dr. Gade-Pulido 

opined relator had a five percent whole person impairment with regard to her allowed 

conditions relative to her right shoulder and concluded that relator could perform 

sedentary work with the following restrictions: 

Relative to the allowed right shoulder condition, she is 

physically capable of a sedentary to light physical demand 

level of activity. She should not lift more than 10# 

occasionally with the right arm (bimanually) and she should 

perform no repetitive or overhead activities with the 

dominant right arm. There are no restrictions for the 

nondominant left arm. 

{¶ 22} 6. There are two vocational reports in the stipulation of evidence. The first 

is the October 29, 2012 report of John Ruth, MS. Mr. Ruth identified the following 

barriers to competitive employment: 

[One] Age (69). 

[Two] Range of motion restrictions. 

[Three] Poor sitting/standing/walking tolerance. 

[Four] Medications causing unusual side effects interfering 

with safety. 

[Five] Medical contraindications to employment. 

[Six] Limited lifting capacity. 

[Seven] Poor manual dexterity capabilities. 

[Eight] Lack of transferability of past relevant work 

experience. 

[Nine] Lack of rehabilitation potential. 

{¶ 23} Based on relator's limitations concerning her shoulder, Mr. Ruth concluded 

that she would not be able to perform routine sedentary work finding that her work 

restrictions could not be met in real world occupations. Mr. Ruth also noted that relator 
No. 14AP-632 11 

had actively pursued rehabilitation efforts including three surgeries, physical therapy, use 

of a TENS unit, pharmacological therapy, aquatic therapy, and vocational evaluation 

services all to no avail. Ultimately, Mr. Ruth concluded that relator was not employable 

and had no rehabilitation potential, stating: 

In summation, it is this evaluator's opinion that Ms. Flora 

Bennett will be unable to successfully seek or sustain 

remunerative employment now or in the future. Serious 

barriers prohibiting this woman's return to work include a 

chronological age of 69 placing her at the high end of the 

approaching advanced age category clearly not allowing her 

to adapt to new work situations nor to perform work in 

competition with others, range of motion restrictions not 

permitting her to perform work in an overhead, bent or 

crouched position interfering with her ability to perform all 

aspects of sedentary work, very limited sitting/standing/walking tolerance interfering with her ability to 

perform all aspects of sedentary work; medications causing 

unusual side effects interfering with this woman's safety in 

any work environment and potentially interfering with the 

safety of others working around her in an industrial 

environment, medical contraindications to employment, 

limited lifting capacity not allowing her to perform all 

aspects of sedentary work on a competitive basis, poor 

manual dexterity capabilities not allowing this woman to 

perform assembly work or jobs involving any significant 

degree of manual manipulation activities, a clear lack of 

transferability of past relevant work experience to a more 

sedentary occupation this woman could physically perform 

preventing her from bringing salable vocational skills to an 

employment interview or work site, and a clear lack of 

rehabilitation potential not allowing her to benefit from 

further rehabilitation services to the point of returning to 

work. 

{¶ 24} The stipulation of evidence also includes the February 13, 2013 vocational 

report of J. Kilbane, M.Ed. After noting that relator's job history was classified as 

unskilled to semi-skilled to skilled work in the light and medium capacity levels, Ms. 

Kilbane opined that relator had the following transferrable skills: 

Follow instructions 

Work independently 

Work with others 

Influence and direct others 
No. 14AP-632 12 

Record detailed information 

Learn new information 

Read, write, and perform basic math 

Provide customer service 

Ability to process monetary transactions 

Perform basic computer knowledge 

Comprehend basic medical terminology 

{¶ 25} Ms. Kilbane opined relator was capable of returning to work as a cashier 

noting, however, that she would not be able to work in a large grocery store where she 

would be exposed to lifting, pushing, and pulling heavier objects. He concluded she could 

work as a cashier in a hospital cafeteria, restaurant, movie theatre, small store or parking 

garage, and could perform the job of a cashier one-handed if necessary. He also 

concluded that relator was capable of participating in vocational rehabilitation services 

and would benefit from such services as she tries to re-enter the labor market. Ultimately, 

Ms. Kilbane concluded: 

Based on the consensus of the opinions of the medical 

evaluators, Ms. Bennett is capable of work activity in at least 

sedentary work capacity level. There is repeated evidence 

that she is self-limiting her physical abilities, which is 

supported by several medical exams. Mr. Ruth administered 

vocational tests that lacked validity measures and that asked 

Ms. Bennett to perform tasks outside of her restrictions. Mr. 

Ruth chose not to test Ms. Bennett's abilities within her 

restrictions, such as administering work samples to evaluate 

her clerical and customer service skills. 

Ms. Bennett is able to work as a cashier, where she has 

previous experience and has direct transferable skills, in the 

sedentary work capacity level. She is able to participate in 

vocational rehabilitation. Her age is not a barrier to 

employment. 

It is my opinion that Ms. Bennett is capable of sustained 

remunerative employment based on the allowed conditions 

of the claims, her residual physical capabilities, age, 

education, work history and skills. 

{¶ 26} 7. Relator's application was heard before an SHO on April 23, 2013. The 

SHO discussed the medical reports of Drs. Novak, Kepple, and Gade-Pulido specifically 

noting the restrictions identified by those physicians. Ultimately, the SHO relied on all 
No. 14AP-632 13 

three reports to find that relator may be able to engage in sustained remunerative 

employment, stating: 

Therefore, based upon a review of the medical opinions of 

Dr. Gade-Pulido, Dr. Novak, and Dr. Kepple, the Staff 

Hearing Officer finds that based upon the Injured Worker's 

medical impairment, the Injured Worker may be able to 

engage in sustained remunerative employment. Thus, an 

analysis of Injured Worker's non-medical factors is 

necessary. 

{¶ 27} After finding that relator may be able to engage in limited sedentary work, 

the SHO discussed the non-medical disability factors and the vocational reports 

submitted. The SHO specifically stated: 

The Injured Worker is 69 years of age and has a high school 

education. Per the transcript of today's hearing, the Staff 

Hearing Officer finds that the Injured Worker indicated that 

she has the ability to read, write, and do basic math. See 

Transcript p. six. Pursuant to the Injured Worker's IC-2 

application, the Injured Worker's work history consisted of 

the following jobs. From 1978 through 1985, the Injured 

Worker worked as a meat clerk in a grocery store. From 

August 1986 through 1996, the Injured Worker worked as a 

public bus driver. From November 1996 through February 

1997, the Injured Worker worked as a meat clerk for a 

grocery store. From 1997 through 2004, the Injured Worker 

worked as a cashier, substitute assistant, and assistant 

manager for a grocery store. 

The Staff Hearing Officer finds that the claimant is 69 years 

of age, which is considered to be a person closely 

approaching advanced age. In analyzing this factor, the Staff 

Hearing Officer finds this factor to be a negative factor in the 

Injured Worker's potential for re-employment because she 

has surpassed the average retirement age of 65 years of age. 

The Staff Hearing Officer finds that the Injured Worker has a 

high school education. The Staff Hearing Officer specifically 

finds that the Injured Worker completed the ninth grade of 

formal education and obtained her GED in 1977 per the 

Transcript pp. 5,6. The Injured Worker also demonstrated 

initiative in obtaining her GED. The Staff Hearing Officer 

finds that the Injured Worker's education is a positive factor 

in her re-employment potential because it provides her with 
No. 14AP-632 14 

the necessary intellectual skills to obtain basic, entry level 

work. 

The Staff Hearing Officer finds that the Injured Worker's 

work experience is a negative factor regarding the Injured 

Worker's potential for re-employment. The Staff Hearing 

Officer finds that the Injured Worker has a varied work 

history, working approximately seven and a half years as a 

meat clerk, ten years as a bus driver, and seven years at 

Aldi's, including work as a working manager. However, the 

Staff Hearing Officer finds that this work history, consisting 

of work ranging in strength level from light to medium and 

in [a] skill level from semi-skilled to skilled work, does not 

provide the Injured Worker with any transferrable skills into 

limited sedentary work as referenced by Dr. Gade-Pulido. 

The Staff Hearing Officer finds that John Ruth, M.S. 

performed a vocational evaluation of the Injured Worker and 

issued the 10/29/2012 report. Mr. Ruth indicated that the 

Injured Worker will be unable to successfully seek or sustain 

remunerative employment now or in the future. Mr. Ruth 

indicated that serious barriers prohibiting the Injured 

Worker's return to work included chronological age, adaptive 

skills, medications, range of motion issues, limited lifting 

capacity, and the lack of transferability of skills. The 

vocational rehabilitation evaluator concluded that the 

Injured Worker lacked rehabilitation potential. 

The Staff Hearing Officer also finds that Janet Kilbane, 

M.Ed. performed a vocational evaluation of the Injured 

Worker and issued the 02/13/2013 report. Ms. Kilbane 

indicated that the Injured Worker was capable of returning 

to work as a cashier. The vocational evaluator indicated that 

the Injured Worker would not be able to work as a cashier in 

large grocery stores where she would be exposed to lifting, 

pushing, and pulling heavier objects, but she could work as a 

cashier in a hospital cafeteria, restaurant, movie theater, 

small store, or parking garage. She also indicated that the 

Injured Worker could perform the job of a cashier onehanded if necessary. The Staff Hearing Officer does not agree 

with her conclusions. Specifically, the Staff Hearing Officer 

finds that all of the medical evidence on file indicated that 

the Injured Worker is unable to use her right upper 

extremity in a repetitive manner. The Injured Worker's 

former positions all involved repetitive use of the right upper 

extremity, and the Injured Worker's age and adaptive skills 
No. 14AP-632 15 

would be barriers to rehabilitative efforts. Reviewing the 

Injured Worker's age, education, and work experience, the 

Staff Hearing Officer concurs with the opinion of Mr. Ruth 

and specifically finds that the Injured Worker's non-medical 

factors, as a whole, have a negative impact on the Injured 

Worker's ability to work or to be retrained. 

Therefore, the Staff Hearing Officer finds that the Injured 

Worker is precluded from all sustained remunerative 

employment, and therefore is permanently and totally 

disabled. Permanent total disability benefits are to begin 

04/23/2013, the date of this hearing. The Staff Hearing 

Officer finds that this start date is appropriate based upon 

the finding that the Injured Worker is unable to engage in 

sustained remunerative employment due to the foregoing 

analysis of the non-medical disability factors and a review of 

the medical evidence on file that she is capable of limited 

sedentary work. 

{¶ 28} 8. The employer filed a motion for reconsideration arguing, in part, that the 

SHO order contained a clear mistake of law because the report of Dr. Novak did not 

constitute some evidence upon which the commission could rely because Dr. Novak 

applied an incorrect standard for assessing whether relator was capable of performing 

sustained remunerative employment. Specifically, the employer argued that Dr. Novak's 

opinion that relator could not work eight hours a day, five days a week, was not some 

evidence that relator was permanently and totally disabled inasmuch as part-time work 

can be considered some sustained remunerative employment. 

{¶ 29} 9. In an order mailed July 31, 2013, the commission vacated the prior SHO 

order finding that the employer presented evidence of sufficient probative value to award 

adjudication of the request following a hearing. 

{¶ 30} 10. A hearing was held before the commission on August 22, 2013, at that 

time, the commission determined that the prior SHO order did contain a clear mistake of 

law, stating: 

08/22/2013 - After further review and discussion, it is the 

finding of the Industrial Commission that the Employer has 

met its burden of proving that the Staff Hearing Officer 

order, issued 05/15/2013, contains a clear mistake of law. 

Specifically, reliance on the 07/24/2013 report of Glen 

Novak, D.O., was improper, as Dr. Novak used an incorrect 
No. 14AP-632 16 

standard for assessing whether the Injured Worker is 

capable of sustained remunerative employment, by finding 

the Injured Worker could not work an eight hour a day/40 

hour a week job. Therefore, the Commission exercises 

continuing jurisdiction pursuant to R.C. 4123.52 and State ex 

rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 692 N.E.2d 

188 (1998), State ex rel. Foster v. Indus. Comm., 85 Ohio 

St.3d 320, 707 N.E.2d 1122 (1999), and State ex rel. 

Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio5990, 817 N.E.2d 398, in order to correct this error. 

{¶ 31} Thereafter, the commission relied on the medical reports of Drs. Kepple and 

Gade-Pulido who found that relator could perform at a sedentary level with certain 

specific permanent restrictions primarily involving her right upper extremity. The 

commission discussed the non-medical disability factors, reaching a different conclusion 

than the SHO had, and found that claimant was capable of performing some sustained 

remunerative employment. Specifically, the commission found that relator's age of 70 

years was a negative factor, but not a bar to re-employment, that her ability to obtain her 

GED in 1977 was at least a neutral factor, and that her work history as a meat clerk in a 

grocery store, a passenger bus driver, a cashier, and an assistant manager for her 

employer involved some duties which she could currently perform including placing 

orders for the entire store, delegating cashiers, scanning registers, counting money and 

cashier's drawers, pick-up by Brinks, doing payroll entries, and inventory. Thereafter, the 

commission found that relator's lack of vocational rehabilitation was significant, 

specifically since she made no effort from the time of her last surgery in late 2007 to the 

present time. The commission also relied on the vocational rehabilitation evaluation of 

Ms. Kilbane who found that relator could return to work as a cashier, provided she not be 

required to handle heavy objects, and that she maintain transferable skills that would 

allow for the performance of other jobs. 

{¶ 32} 11. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 33} For the reasons that follow, it is this magistrate's decision that this court 

should issue a writ of mandamus ordering the commission to vacate its order exercising 
No. 14AP-632 17 

its continuing jurisdiction, and the April 23, 2013 SHO order should be re-instated and 

PTD compensation awarded. 

{¶ 34} 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). 

{¶ 35} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, relator must show a clear legal right to the relief sought 

and that the commission has a clear legal duty to provide such relief. State ex rel. 

Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of 

mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel. 

Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record 

contains some evidence to support the commission's findings, there has been no abuse of 

discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry 

Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be 

given evidence are clearly within the discretion of the commission as fact finder. State ex 

rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). 

{¶ 36} The relevant inquiry in a determination of permanent total disability is 

claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic 

v. Indus. Comm., 69 Ohio St.3d 693 (1994). Generally, in making this determination, the 

commission must consider not only medical impairments but also the claimant's age, 

education, work record and other relevant non-medical factors. State ex rel. Stephenson 

v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's medical capacity to work is 

not dispositive if the claimant's non-medical factors foreclose employability. State ex rel. 

Gay v. Mihm, 68 Ohio St.3d 315 (1994). The commission must also specify in its order 

what evidence has been relied upon and briefly explain the reasoning for its decision. 

State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991). 

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

and the authority of the administrator of workers' compensation over each case is 
No. 14AP-632 18 

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

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

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

examined the judicially-carved circumstances under which continuing jurisdiction may be 

exercised, and stated as follows: 

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

we are aware that the commission's continuing jurisdiction is 

not unlimited. See, e.g., State ex rel. Gatlin v. Yellow Freight 

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

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

its order for a reasonable period of time absent statutory or 

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

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

128, 388 N.E.2d 1383 (just cause for modification of a prior 

order includes new and changed conditions); State ex rel. 

Weimer v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16 

O.O.3d 174, 404 N.E.2d 149 (continuing jurisdiction exists 

when prior order is clearly a mistake of fact); State ex rel. 

Kilgore v. Indus. Comm. (1930), 123 Ohio St. 164, 9 Ohio 

Law Abs. 62, 174 N.E. 345 (commission has continuing 

jurisdiction in cases involving fraud); State ex rel. Manns v. 

Indus. Comm. (1988), 39 Ohio 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. 

{¶ 38} In the present case, the commission determined that the SHO order 

contained a clear mistake of law. Specifically, one of the three medical reports upon 

which the SHO relied was the July 24, 2012 report of Dr. Novak who, after providing his 

physical findings upon examination, concluded: 

Having examined this injured worker on 7/24/12 it is within 

a reasonable degree of medical certainty that, in my medical 

opinion, this injured worker is permanently and totally 

impaired from any gainful employment as a result of the 

above conditions. Due to her marked limitations of her right 
No. 14AP-632 19 

shoulder and right lower extremity, in my medical opinion, 

and within a reasonable degree of medical certainty, she is 

not capable of performing the physical demands required for 

an eight hour day, five day a week basis. 

{¶ 39} The magistrate does agree with the commission's determination that Dr. 

Novak used the wrong standard. Specifically, Dr. Novak concluded that relator could not 

perform the physical demands required for an eight-hour day, five days a week. This is 

not the proper standard to determine whether or not an injured worker can perform some 

sustained remunerative employment. 

{¶ 40} Despite the fact that the magistrate agrees that Dr. Novak used an improper 

standard, the magistrate specifically notes that the SHO did not accept Dr. Novak's 

ultimate conclusion that relator could not perform sustained remunerative employment. 

The SHO relied on the physical limitations noted by the three doctors. Had the SHO 

relied on Dr. Novak's ultimate conclusion that relator could not return to work based on 

his opinion that she could not work full-time, and had the SHO not considered the nonmedical disability factors, the order would have contained a clear mistake of law. 

However, as noted in the findings of fact, the commission relied on three medical reports 

from Drs. Novak, Kepple, and Gade-Pulido and, after concluding that relator may be 

capable of performing sedentary work with certain permanent restrictions, the SHO 

examined, considered, analyzed the non-medical disability factors, and concluded that: 

Specifically, the Staff Hearing Officer finds that all of the 

medical evidence on file indicated that the Injured Worker is 

unable to use her right upper extremity in a repetitive 

manner. 

 

{¶ 41} This was clearly based on the reports of Drs. Gade-Pulido and Kepple whose 

findings the SHO noted previously: 

Dr. Gade-Pulido opined sedentary work with further 

limitations of no repetitive or overhead use of the right upper 

extremity. 

* * * 

Repetitive or continuous activities with the right extremity 

should be avoided unless the right upper extremity is 

supported by a table or counter top. 
No. 14AP-632 20 

{¶ 42} In the magistrate's opinion, the only portion of Dr. Novak's report upon 

which the SHO relied was his opinion that relator could not work eight hours a day, five 

days a week. Drs. Kepple and Gade-Pulido provided specific restrictions related to 

relator's right upper extremity, which the SHO found limited her abilities significantly 

enough that, after consideration was given to the non-medical disability factors, she was 

unable to perform any sustained remunerative employment. Upon rehearing, the 

commission relied on the same medical evidence upon which the SHO relied, but reached 

a different ultimate conclusion after discussing the non-medical disability factors. Given 

that the SHO did not rely on Dr. Novak's conclusion that relator could not work (which 

was based on an inappropriate standard), the SHO's obvious reliance on the reports of 

Drs. Kepple and Gade-Pulido, and the significant restrictions they provided for relator's 

right upper extremity, the magistrate finds that the commission abused its discretion 

when it determined that the prior SHO order contained a clear mistake of law, and abused 

its discretion when it exercised its continuing jurisdiction. 

{¶ 43} Based on the foregoing, it is this magistrate's decision that this court should 

issue a writ of mandamus ordering the commission to vacate its August 22, 2013 order 

exercising its continuing jurisdiction, ultimately denying relator PTD compensation, and 

reinstate the April 23, 2013 SHO order which awarded relator PTD compensation. 

 /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).