[Cite as State ex rel. Johnson v. OSU Cancer Research Hosp., 2015-Ohio-3249.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[State ex rel.] Eleanorene Johnson, : 

 

 Relator, : 

 

v. : No. 14AP-430 

 

OSU Cancer Research Hospital : (REGULAR CALENDAR) 

and Industrial Commission of Ohio, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on August 13, 2015 

 

Michael J. Muldoon, for relator. 

Dinsmore & Shohl, LLP, Christen S. Hignett and Michael L. 

Squillace, for respondent OSU Cancer Research Hospital. 

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

respondent Industrial Commission of Ohio. 

 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

HORTON, J. 

{¶ 1} Relator, Eleanorene Johnson, brings this original action seeking a writ of 

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

vacate its order exercising its continuing jurisdiction, and to order the commission to 

reinstate the order of its staff hearing officer ("SHO"). 

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

Appeals, this matter was referred to a magistrate, who has now rendered a decision and 

recommendation that includes findings of fact and conclusions of law and is appended to 

this decision. The magistrate concluded that the commission did not abuse its discretion 

in exercising its continuing jurisdiction and thereby vacating the SHO's order. 
No. 14AP-430 2 

Respondent, OSU Cancer Research Hospital ("OSU"), relator's employer, has filed the 

following objection to the magistrate's decision: 

RESPONDENT, THE OHIO STATE UNIVERSITY CANCER 

RESEARCH HOSPITAL, OBJECTS TO THE FINDING OF 

THE MAGISTRATE THAT RELATOR DOES NOT HAVE AN 

ADEQUATE REMEDY AT LAW. 

{¶ 3} Relator has also filed an objection to the magistrate's decision. However, for 

the reasons which follow, we sustain OSU's objection, thereby rendering relator's 

objection moot. 

{¶ 4} As reflected in the facts given in the magistrate's decision, relator suffered 

an industrial injury in 2010 and her claim was allowed for the following physical 

condition: sprain lumbosacral. On August 23, 2013, relator 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 district hearing officer disallowed 

relator's request. The matter came before the SHO on October 18, 2013. The SHO granted 

relator'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. 

{¶ 5} 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 relator's request for the additional allowance. 

{¶ 6} The magistrate determined that the commission did not abuse its discretion 

by exercising its continuing jurisdiction, as the SHO's order contained a clear mistake of 

law. As such, the magistrate recommended that we deny relator's request for a writ of 

mandamus. 

{¶ 7} The magistrate also addressed OSU's contention that the instant action was 

a right to participate case and appealable to the court of common pleas. The magistrate 

concluded that the commission's decision to exercise its continuing jurisdiction was 

reviewable in mandamus, as it could not be challenged elsewhere. 
No. 14AP-430 3 

{¶ 8} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the 

objected matters "to ascertain that the magistrate has properly determined the factual 

issues and appropriately applied the law." A relator seeking a writ of mandamus must 

establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon 

respondent to perform the act requested, and (3) that relator has no plain and adequate 

remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police and 

Firemen's Disability and Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting

State ex rel. Consol. Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear legal 

right exists where the [commission] abuses its discretion by entering an order which is 

not supported by 'some evidence.' " Id.

{¶ 9} OSU asserts that relator has an adequate remedy in the ordinary course of 

the law pursuant to R.C. 4123.512. R.C. 4123.512(A) states, in relevant part, that "[t]he 

claimant or the employer may appeal an order of the industrial commission * * * in any 

injury or occupational disease case, other than a decision as to the extent of disability to 

the court of common pleas." Thus, "[u]nder R.C. 4123.512, claimants and employers can 

appeal Industrial Commission orders to a common pleas court only when the order 

grants or denies the claimant's right to participate" in the workers' compensation fund. 

State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 278 (2000). 

"Determinations as to the extent of a claimant's disability, on the other hand, are not 

appealable and must be challenged in mandamus." Id. at 278-79. 

{¶ 10} Thus, the issue before this court resolves to whether the commission's 

decision to exercise its continuing jurisdiction amounted to a decision determining 

relator's right to participate in the workers' compensation system. Pursuant to the 

Supreme Court of Ohio's recent decision in State ex rel. Alhamarshah v. Indus. Comm., 

142 Ohio St.3d 524, 2015-Ohio-1357, we find that it was. 

{¶ 11} In Alhamarshah, the claimant filed an application for workers' 

compensation benefits, and the Bureau of Workers' Compensation allowed the claim. 

The employer then faxed some documents to the bureau, which a bureau employee 

construed as a notice of appeal. The commission accepted the appeal, and a hearing 

officer disallowed the claim. The claimant then filed a complaint for a writ of mandamus 

in the court of appeals, asserting that the commission abused its discretion by 

determining that the faxed documents amounted to a notice of appeal. 
No. 14AP-430 4 

{¶ 12} The commission's determination that the faxed documents complied with 

the statutory requirements for a notice of appeal was a decision which "conferred 

jurisdiction on the commission to proceed to consider the merits of the purported 

employer's appeal." Id. at ¶ 12. As the "commission's exercise of jurisdiction resulted in a 

decision denying the claimant's right to participate in the workers' compensation 

system," the Supreme Court held that the "decision allowing the appeal to proceed was 

essential to the ultimate determination that denied the claimant's participation in the 

workers' compensation system." Id. at ¶ 12. As such, the court found that "the 

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

4123.512," and the claimant thus "had an adequate remedy in the ordinary course of law 

by way of an appeal under R.C. 4123.512." Id. at ¶ 12-13. 

{¶ 13} The commission's decision here to exercise its continuing jurisdiction 

resulted in a decision which denied relator the right to participate in the workers' 

compensation system. The commission's decision was thus "essential to the ultimate 

determination that denied the claimant's participation in the workers' compensation 

system." Id. at ¶ 12. Accordingly, the commission's decision to exercise its continuing 

jurisdiction was appealable to the court of common pleas pursuant to R.C. 4123.512. 

{¶ 14} Following our own independent review, and for the reasons set forth in 

this decision, we sustain OSU's objection to the magistrate's decision, overrule relator's 

objection as moot, and reject the magistrate's conclusions of law. Because relator has an 

adequate remedy at law, mandamus relief is inappropriate. As such, we deny the request 

for a writ of mandamus. 

OSU's objection sustained; 

relator's objections rendered as moot; writ denied. 

BROWN, P.J. and BRUNNER, J., concur. 

_________________ 

 
No. 14AP-430 5 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[State ex rel.] Eleanorene Johnson, : 

 

 Relator, : 

 

v. : No. 14AP-430 

 

OSU Cancer Research Hospital : (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 April 22, 2015

 

Michael J. Muldoon, for relator. 

Dinsmore & Shohl, LLP, Christen S. Hignett and Michael L. 

Squillace, for respondent OSU Cancer Research Hospital. 

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

respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

{¶ 15} Relator, Eleanorene Johnson, has filed this original action requesting that 

this court find that the Industrial Commission of Ohio ("commission") abused its 

discretion when it exercised its continuing jurisdiction over her application to have her 

claim additionally allowed for a psychological condition and ordering the commission to 

vacate its order on grounds that the commission did not have jurisdiction, and further 

ordering the commission to reinstate the order of its staff hearing officer ("SHO") 
No. 14AP-430 6 

granting her the right to participate in the workers' compensation system for an allowed 

psychological condition. 

Findings of Fact: 

{¶ 16} 1. Relator sustained a work-related injury to her low back on August 19, 

2010 while working for respondent OSU Cancer Research Hospital ("OSU"). 

{¶ 17} 2. Relator's workers' compensation claim has been allowed for the 

following physical condition: "sprain lumbosacral." 

{¶ 18} 3. Relator's claim has been specifically disallowed for the following 

additional back conditions: 

Disc protrusion L5-S1; substantial aggravation of preexisting L5-S1 disc herniation. 

{¶ 19} 4. On April 23, 2013, relator filed a C-86 motion asking that her claim be 

additionally allowed for the following psychological condition: "major depression, single 

episode, non-psychotic, severe." 

{¶ 20} 5. In support of her motion, relator submitted the April 1, 2013 report of 

Michael Glenn Drown, Ph.D. In his report, Dr. Drown noted relator's complaints: 

Chronic Pain; Dysphoric Mood; Anhedonia (inability to 

experience joy); Sadness; Sleep Impairment; Loss of 

Motivation; Despair; Hopelessness; Irritability; Chronic 

Frustration. 

Ms. Johnson elaborated that prior to her work injury she was 

a happy and able bodied person. She described herself as a 

hard worker. She played with her grandchildren. She enjoyed 

going out with friends. She had a boyfriend. She had no 

problems getting up and down. She road her bike. She was 

able to do her own household chores. She walked a lot and 

enjoyed taking a bath. She was hopeful regarding her future. 

She felt good about herself. She was content in life and had 

self-confidence. Her self-image was that of a strong 

individual capable of forging her way through life in a 

meaningful and productive way both for the benefit of her 

family and the community at large. 

Following her work injury[,] Ms. Johnson has become 

restricted in many aspects of ordinary living. She struggles 

with problems of pain. She explained that she lost her job 

because of her injury. She is sad and cries all the time. She is 

unable to sit or stand for any length of time. She can no 

longer play with her grandchildren like she used to because 
No. 14AP-430 7 

of pain. She can not ride her bike. Her daughter must do the 

chores for her. She lost her boyfriend because pain keeps her 

from having sex. 

Ms. Johnson worries about aggravating her injury. She 

would like additional help for learning how to better manage 

her pain, worries and depressive feelings. Learning to better 

manage these specific problems is paramount to her learning 

to rebuild her life in general. She fears that without proper 

treatment she will become more and more depressed. 

* * * 

Ms. Johnson is presently unemployed. She worked twentyone years for OSU as a housekeeper. She seeks to reestablish herself as a happy and secure worker gainfully 

employed. She seeks to better adapt to these problems. 

 Under additional major life stressors, Dr. Drown noted: 

The most significant stressor impinging on Ms. Johnson is 

her work injury, including the loss of functioning, pain, 

associated problems of worries and fears and the deflected 

self-esteem. 

Ms. Johnson is being treated for hypertension. She has 

issues with her thyroid and with seizures. She evidently had 

adjusted well to the usual medical illness of childhood 

including measles and chickenpox. She has reportedly been 

able to adjust through period[s] of time when she has the 

common cold and flu; this may happen on a seasonal basis. 

However, the medical issues that wear on her unceasingly 

are those which are work related and cause her unrelenting 

physical pain. 

Ms. Johnson reported no history of either drug or alcohol 

abuse. She reports no criminal history. There is no prior 

psychiatric treatment. 

{¶ 21} Dr. Drown administered the BDI-II test and indicated that relator fell under 

the category of severe depression. The ISB test revealed that relator was generally 

maladaptive regarding her mood, anxiety, pain and self-image. The MMPI-2 test was 

administered and, in discussing the results, Dr. Drown concluded that the proper 

interpretation of relator's profile was for a "cry for help." Dr. Drown recommended the 

following: 
No. 14AP-430 8 

Based [on] this most recent interview and psychometric test 

results, it can be said that Ms. Eleanorene Johnson suffers 

from Major Depression, Single Episode, Non-Psychotic, 

Severe. It is within reasonable certainty that this psychiatric 

disorder is directly related to her industrial injury as 

referenced on page one of this report. 

It is highly recommended that Ms. Johnson be permitted to 

receive antidepressant medication; certain antidepressant 

medications such as selective sympathetic re-uptake 

inhibitors (SSRI) are well known to assist in the 

management of pain, mood and worry. 

It is vitally important that she be allotted the opportunity to 

participate in at least 26 weeks of intensive cognitive and 

behavioral therapy that would focus on the management of 

mood, anxiety and physical pain. Such therapy should also 

address the issue of self-image reconstruction. 

Furthermore[,] such therapy should focus on recovery of 

such problems to the point of enhancing her sense of job 

security, and job satisfaction. 

Should Ms. Johnson be granted this type of therapy, it is 

important that useful tracking tools be utilized in order to 

measure or gauge treatment outcome. At the end of this 

specified number of sessions, a second evaluation should be 

made which addresses efficacy of the treatment process. 

At this point in time a recommendation should be made 

regarding the need and direction for continuation of such 

therapy. This could include the termination of psychotherapy 

altogether if benefit cannot be substantiated. Given her 

excellent work ethic and positive attitude toward mental 

health recovery as well as toward learning pain management, 

the prognosis for making significant strides through 

psychological counseling is optimistic. She will need 

treatment with a patient therapist capable of feeling 

compassion and creative enough to assist her in finding hope 

as she moves through the various struggles which she faces. 

Prognosis under such conditions is good for moving through 

the grieving process and onto reconstruction of her life, 

including vocational rehabilitation which may lead to 

reemployment. Should she not be permitted to engage in 

structured psychological counseling, her condition is likely to 

worsen. 
No. 14AP-430 9 

{¶ 22} 6. Relator was also examined by Dr. Earl F. Greer, Jr., Ed.D. In his July 19, 

2013 report, Dr. Greer ultimately concluded that she was not suffering from a major 

depressive disorder, but was experiencing a depressive disorder currently diagnosed as 

dysthymic disorder. In Dr. Greer's opinion, relator had an underlying, pre-existing 

personality pattern and/or emotional state which was aggravated by the August 19, 2010 

work-related injury. Dr. Greer further opined that the degree of impairment appeared 

temporary pending the outcome of treatment with psychological/psychiatric intervention 

being highly recommended. 

{¶ 23} 7. Relator was also examined by Richard H. Clary, M.D. In his August 23, 

2013 report, Dr. Clary noted the history of relator's present illness: 

Ms. Johnson began working at OSU Medical Center in 1990. 

She later moved to the OSU James Cancer Hospital. She 

worked in the housekeeping department. She was injured on 

8/19/10 when she was cleaning a patient's room. She was 

moving a chair and noted pain in her lower back. She went to 

the OSU Medical Center Emergency Room where she was 

treated and released. 

She then began follow-up care at the OSU East Occupational 

Medicine Clinic and treated with Dr. Smith initially, but then 

she began treating with a Dr. Schaub. She's had physical 

therapy and prescription medication. She has also had x-ray 

and a[n] MRI. She consulted with a pain doctor and the 

doctor recommended some type of injections but she said 

this was not approved by BWC. 

She now sees Dr. Schaub every 2-3 months. She takes 

Vicodin 5 mg. four times a day as needed for pain and she 

takes over the counter Tylenol. She said her lower back pain 

has not improved since the time of the injury. 

Ms. Johnson returned to work on light duty after the injury 

and worked for about a year. After 1 year, she said OSU told 

her there were no more light duty jobs available. 

Ms. Johnson said her attorney referred her to Psychologist 

Dr. Drown. We submitted a report dated 4/1/13 but he has 

not provided any treatment. BWC then referred her to 

Psychologist Dr. Greer. He submitted a report dated 7/19/13 

but he has not provided any treatment. 
No. 14AP-430 10 

Ms. Johnson denies any psychiatric care or treatment before 

the injury of 8/19/10. She has never been hospitalized for 

psychiatric problems. 

{¶ 24} Ultimately, Dr. Clary opined that relator had not developed the 

psychological disorder as a result of the August 19, 2010 injury. Instead, Dr. Clary noted 

that relator had suffered from seizures for the last several years and, in his opinion, 

tended to exaggerate her problems. Specifically finding that she did not have a 

psychological condition or aggravation attributable to the work-related injury, Dr. Clary 

stated: 

Ms. Johnson denied any past history of ever having 

treatment for any psychiatric or psychological problems. Her 

teenage years were very stressful after her mother died 

because she had to take care of 5 younger children and she 

had to deal with her father who abused alcohol and was 

mean and horrible to her when he was drinking. Ms. 

Johnson was also inconsistent in reporting her past use of 

marijuana. 

In my medical opinion, Ms. Johnson is not suffering from 

major depressive disorder as the result of the injury of 

8/19/10. In my medical opinion, Ms. Johnson is not 

suffering from dysthymic disorder as the result of the injury 

of 8/19/10. In my medical opinion, Ms. Johnson has a 

tendency to exaggerate her psychiatric symptoms. During my 

evaluation, Ms. Johnson was exaggerating her short term 

memory problems. In my medical opinion, the exaggeration 

of memory problems correlates with the exaggeration of 

psychiatric symptoms. 

In my medical opinion, Ms. Johnson has had a seizure 

disorder problem for about 15 years but she has had poor 

control over the seizures for the last several years and she's 

had several seizures each year. In my medical opinion, 

having seizures on a yearly basis could certainly cause 

depression, which would be present even in the absence of 

her injury of 8/19/10. 

In my medical opinion, her injury of 8/19/10 did not 

aggravate a pre-existing psychiatric condition. 

{¶ 25} 8. In a letter dated September 3, 2013, Dr. Drown responded to Dr. Clary's 

report, stating: 
No. 14AP-430 11 

Problem One: Making reference to the MMPI-2 profile that I 

generated from my initial evaluation (4/01/13) Dr. Clary 

opined that Ms. Johnson was attempting to exaggerate her 

symptoms because in addition to the F (faking bad) score 

being elevated, the L (lie) score and the K (defensive) scales 

were very low. However Dr. Clary fails to recognize that the F 

scale elevation is most probably a "cry for help" indication 

and rises as an artifact of the genuine suffering she has 

expressed in the clinical scales especially that of scale 2 

(depression) and scale 7 compulsivity, 3 (Hysteria), and scale 

5 (Paranoia). 

Additionally, the low scale of L (lie) and of K (defensive) 

contradict Dr. Clary's analysis that Ms. Johnson is 

exaggerating. Instead such low scores if anything would 

indicate a tendency not to over report. 

Problem Two: Dr. Clary presents a list of life event stressors 

that Ms. Johnson has encountered and implies that the [sic] 

such stressors continue to be operative including the death of 

various family members many years ago. However[,] these 

are life event stressors for all people who live long enough. 

These matters have long been resolved. The problems that 

are ongoing and clearly unresolved include the ongoing work 

injury pain, the loss of her ability to be employed, the grief 

associated with the loss of functioning. Ms. Johnson's life 

style plans have been "blown up" because of their [sic] 

multiple work injuries. She had expected to work until her 

late sixties. Currently her status with her O.S.U. employer is 

involuntary retirement. 

I reviewed my earlier 4/01/13 evaluation of Ms. Johnson. 

Indeed[,] during this evaluation she expressed herself as 

having ongoing problems with chronic work injury pain. This 

information is reflected in the various instruments that I 

administered to her (see attached). She explained that her 

pain is so overwhelming that it impairs her concentration 

ability as well as causes her to have much anger and 

frustration. Furthermore she reports having problems of low 

self-confidence, diminished ability to find joy and pleasure 

with social withdraw and isolation, feeling sad and having 

hopelessness. She also reports having [a] problem with 

managing daily stress. She is easily frustrated, irritable and 

stressed. She reports worrying a good deal especially about 

her work injury issues becoming worse across time. In 

addition to taking psychotropic medication she would like to 

have someone to talk to regarding the better management of 

her mood problems. There is nothing in the Dr. Clary 
No. 14AP-430 12 

defense report that would change my mind in regard to his 

opinion. Ms. Johnson suffers from a work related affective 

disorder. Dr. Greer identified this disorder as, "Dysthymic 

Disorder." I have identified it as, "Major Depression, Single 

Episode, Non-Psychotic[, Severe]." I stand by the diagnosis 

that I have made in my 4/01/13 report. Dr. Greer's diagnosis 

is very close to the diagnosis that I have generated and will 

be adequate to help Ms. Johnson get the treatment that she 

desperately needs. 

{¶ 26} 9. Relator's motion was heard before a DHO on September 5, 2013. The 

DHO relied on the report of Dr. Clary and disallowed relator's claim for the requested 

psychological condition. 

{¶ 27} 10. Relator appealed and the matter was heard before an SHO on 

October 18, 2013. The SHO vacated the prior DHO order and relied on Dr. Drown's April 

1, 2013 report as well as his December 3, 2013 rebuttal and granted relator's request that 

her claim be allowed for major depression, single episode, non-psychotic, severe. 

{¶ 28} 11. OSU's appeal was refused by order of the commission mailed November 

15, 2013. 

{¶ 29} 12. OSU filed a request for reconsideration and in an order mailed 

January 9, 2014, the commission issued an interlocutory order vacating the prior SHO 

order and setting the matter for hearing: 

It is the finding of the Industrial Commission that the 

Employer has presented evidence of sufficient probative 

value to warrant adjudication of the request for 

reconsideration regarding the alleged presence of a clear 

mistake of law of such character that remedial action would 

clearly follow. 

Specifically, it is alleged that in granting the requested 

additional allowance of a psychological condition, the Staff 

Hearing Officer erred by failing to make a finding that the 

psychological condition is related to the allowed condition. 

In addition, it is alleged that the Staff Hearing Officer erred 

by relying upon the reports from Michael Drown, Ph.D., who 

does not recognize or address the conditions previously 

disallowed in the claim. 

{¶ 30} 13. The matter was heard before the commission on April 3, 2014. The 

commission granted reconsideration, stating: 

[I]n granting the request to additionally allow the claim for a 

psychological condition, the Staff Hearing Officer failed to 
No. 14AP-430 13 

find the requested condition was related to the physical 

injury previously recognized in the claim, as required by 

Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d 58, 

2013-Ohio-2237 * * *. 

{¶ 31} 14. Thereafter, the commission denied relator's request for the additional 

allowance, stating: 

It is the decision of the Commission to deny the Injured 

Worker's C-86 Motion filed 04/22/2013 [sic], requesting the 

additional allowance of MAJOR DEPRESSION, SINGLE 

EPISODE, NON-PSYCHOTIC, SEVERE and to 

specifically DISALLOW the claim for such condition. The 

Commission is not persuaded the specified psychological 

diagnosis is causally related to the allowed lumbosacral 

sprain condition allowed in the claim, a soft tissue condition 

now three years old, particularly when consideration is given 

to the L5-S1 disc conditions specifically disallowed in the 

claim on both a direct and substantial aggravation basis. 

The Commission relies on the 08/23/2013 report from 

Richard Clary, M.D., a psychiatrist who examined the 

Injured Worker on 08/22/2013, regarding the issue of 

recognition of the requested additional condition. Dr. Clary 

concluded the Injured Worker neither suffered from the 

requested major depressive disorder nor any other 

psychiatric disorder as a result of the 08/19/2010 industrial 

injury. Dr. Clary further opined the industrial injury did not 

aggravate any pre-existing psychiatric condition. Based on 

Dr. Clary's persuasive report, the Commission hereby 

denies the requested additional allowance for the 

psychological condition of MAJOR DEPRESSION, 

SINGLE EPISODE, NON-PSYCHOTIC, SEVERE in the 

claim. 

(Emphasis sic.) 

{¶ 32} 15. The stipulation of evidence contains the transcript from the commission 

hearing. That transcript provides information concerning relator's allowed physical 

condition, which is pertinent. Specifically, relator's claim is solely allowed for the 

lumbosacral sprain, which at the time, was a two and one-half-year old soft tissue injury 

that had resolved. Further, relator's treating physician Dr. Schaub, opined that the 

allowed physical condition had reached maximum medical improvement ("MMI") in 

February 2011. The transcript also documents the denial of a request for an MRI in 2012, 

the denials of requested medications in 2012, reference to medical reports reaffirming the 
No. 14AP-430 14 

resolution of the allowed condition and pointing out degenerative disc issues which are 

not allowed. 

{¶ 33} 16. On August 14, 2014, OSU filed a motion to dismiss arguing that this is a 

right to participate case and relator has an adequate remedy at law pursuant to an R.C. 

4123.512 appeal to the common pleas court. 

{¶ 34} 17. In a magistrate's order filed October 31, 2014, the magistrate denied 

OSU's motion to dismiss finding this court had jurisdiction to determine whether the 

commission abused its discretion, as a matter of law, when the commission exercised its 

continuing jurisdiction. 

{¶ 35} 18. The stipulation of evidence and briefs have been filed; oral argument 

has concluded and the case is currently before the magistrate for consideration. 

Conclusions of Law: 

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

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

{¶ 37} 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). 

{¶ 38} 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 

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 
No. 14AP-430 15 

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. 

{¶ 39} As an initial matter, OSU continues to argue that this court does not have 

jurisdiction to hear this mandamus action asserting that this is a right to participate case 

and relator has an adequate remedy at law. As OSU asserts, if this court finds the 

commission abused its discretion when it determined the SHO's order contained a clear 

mistake of law, relator's claim will be additionally allowed for a psychological condition 

and OSU will have to challenge that allowance in common pleas court. 

{¶ 40} The commission may exercise its continuing jurisdiction for only those 

reasons enumerated in the statute. The commission asserts that the SHO's order 

contained a clear mistake of law: the SHO failed to find the requested psychological 

condition was related to the allowed conditions in the claim as required by Armstrong v. 

Jurgensen Co., 136 Ohio St.3d 58, 2013-Ohio-2237. Relator asserts the commission 
No. 14AP-430 16 

merely reweighed the evidence acceptable in an appeal but not acceptable under 

continuing jurisdiction. 

{¶ 41} The magistrate finds that the commission's determination that it had 

continuing jurisdiction is reviewable here in mandamus as it cannot be challenged 

elsewhere. 

{¶ 42} In this mandamus action, there are a limited number of medical records 

which have been filed and the medical records which have been filed all concern relator's 

allowed psychological condition. Missing from the stipulation of evidence are medical 

records documenting relator's physical condition. However, the stipulation of evidence 

does contain a copy of the transcript from the April 4, 2014 hearing and, after reviewing 

that transcript, the magistrate finds that the commission did not abuse its discretion when 

it exercised its continuing jurisdiction. 

{¶ 43} In exercising its continuing jurisdiction, the commission cited the decision 

from the Supreme Court of Ohio in Armstrong. Although the fact pattern here is 

different, the law and its application are not. Shaun Armstrong was involved in a motor 

vehicle accident during the course of his employment. While stopped at a yield sign, 

Armstrong observed a vehicle approaching from behind with increasing speed. 

Armstrong braced for a collision, afraid he was going to be seriously injured. After the 

collision, Armstrong called 9-1-1, observed the other driver was not moving and suspected 

he was dead. Armstrong filed a workers' compensation claim, which was allowed for 

certain physical injuries and subsequently requested additional allowance for posttraumatic stress disorder ("PTSD"). Ultimately, because Armstrong's PTSD did not arise 

from his physical injuries, his request to have that condition allowed was denied. 

{¶ 44} In affirming the determination that PTSD should not be allowed in 

Armstrong's claim, the Supreme Court stated: 

Armstrong's final argument concerns the effect of the 2006 

amendment to R.C. 4123.01(C)(1), which added the following 

italicized language to the statute: injury does not include 

"[p]sychiatric conditions except where the claimant's 

psychiatric conditions have arisen from an injury or 

occupational disease sustained by that claimant." 

Am.Sub.S.B. No. 7, 151 Ohio Laws, Part I, 1019, 1046. The 

parties agree that the purpose of the amendment was to 

counter the decision in [Bailey v. Republic Engineered 

Steels, Inc., 91 Ohio St.3d 38, 39-40, 741 N.E.2d 121 (2001)],
No. 14AP-430 17 

which allowed a claim for depression after the claimant 

accidentally killed a coworker, even though the claimant did 

not suffer any physical injury himself. By amending the 

statute, the General Assembly clarified that the claimant, not 

a third party, must sustain the physical injury required under 

R.C. 4123.01(C)(1). The amendment did not alter the 

statutory language regarding the necessary nexus between a 

physical injury and a psychiatric condition, and the sole 

effect of the amendment here is to preclude Armstrong from 

establishing the compensability of his PTSD by arguing that 

it arose from the other driver's injuries or death. 

(Emphasis sic.) Id. at ¶ 25. 

{¶ 45} In the present case, the issue was whether the medical evidence was 

sufficient to support a finding that relator's request that her claim be allowed for major 

depression, single episode, non-psychotic, severe, was in fact, related to the allowed 

physical condition in her claim, sprain lumbosacral. Relator's date of injury was 

August 19, 2010 and it was in 2013 that Dr. Drown opined she was suffering from a 

psychological condition. Dr. Drown's April 1, 2013 report, repeatedly explains that relator 

continues to suffer significant back pain, which is also keeping her from enjoying life or 

returning to work. However, a lumbosacral sprain is a soft tissue injury which would not 

continue causing relator problems three years post-injury. With that in mind, the 

magistrate notes the following from the transcript which includes reference to medical 

reports which are not contained in the stipulation of evidence: 

The allowed physical injury in this claim is a two and a half 

at least, at the time the C86 was filed two and a half-year-old 

soft tissue injury. All of the evidence with respect to the 

treatment for the physical condition indicates that the 

sprained lumbosacral resolved. 

That being the case, it cannot be said that the resolved 

condition directly caused the requested mental condition. 

With respect to resolution of the allowed sprained 

lumbosacral[,] I direct your attention to a document dated 

February 21, 2011, wherein the physician of record Dr. 

Schaub in a note that's actually dated February 16, 2011, said 

the allowed condition to reach maximum medical 

improvement [sic]. Treatment requests have been denied 

based upon medical reports that have found the allowed 

condition has resolved. 
No. 14AP-430 18 

I direct your attention to DHO, SHO orders denying a 

request for an MRI. DHO document date May 25, 2012, SHO 

document date July 11, 2012. Injured worker's request for an 

MRI was denied based upon a report by Dr. Gayton or 

Gaytons. And his report for your information is included in 

ADR documents or imaged March 30, 2012. 

In that report Dr. Gayton tells us lumbar sprain is well past 

the injury timeline in this case and the requested treatment 

at that point in time[,] an MRI[,] was directed toward nonallowed conditions. 

Medications have been denied under this claim. District 

Hearing Officer dated July 20, 2012[,] SHO dated August 30, 

2012, denied medications requested by the physician of 

record in this claim based upon the report of Dr. Schaub, 

document date June 8, 2012. 

And in that report Dr. Schaub tells us that the soft tissue 

injury has long since healed and the treatment is directed the 

medication at that point in time were directed toward 

chronic problems [sic]. 

In addition to that information you have subsequent notes 

from Dr. Schaub that I reviewed in my request for 

reconsideration. You also have a request for physical therapy 

that was denied based upon a report of Dr. Hiroba. 

Dr. Hiroba noted in her report that was relied upon by the 

Commission to deny treatment that the injury, again, the 

allowed soft tissue injury is well beyond the usual nine- to 

ten-week timeline for sprains and strains. And that the 

treatment at that point in time was physical therapy was [sic] 

directed toward not the allowed degenerate disc disease, not 

the allowed sprain condition [sic]. 

The physician of record[,] Dr. Schaub[,] indicated in 2011[,] 

found that the allowed condition had reached maximum 

medical improvement. 

More recently Dr. Schaub in a note dated August 14, 2013, 

said the patient is only allowed for a sprain/strain claim so I 

recommend she follow up with her family physician for 

ongoing treatment. 

There is no evidence in the record from Dr. Schaub at least 

that indicates that it is the allowed soft tissue injury that is 
No. 14AP-430 19 

the cause of the symptoms that she conveys to the treatment 

providers. 

(Tr. 10-13.) 

{¶ 46} When the SHO allowed relator's claim for a psychological condition, the 

SHO relied on the April 1 and September 3, 2013 reports of Dr. Drown. In his April 1, 

2013 report, Dr. Drown does not list any medical records concerning relator's physical 

conditions which he reviewed. Further, nowhere in his report does Dr. Drown indicate 

that he is aware relator attempted to have her claim additionally allowed for significant 

back conditions, but the request was denied. As such, although he notes that her back 

pain is the main cause of her psychological condition, nowhere in Dr. Drown's report does 

he specifically indicate that the lumbosacral sprain, in and of itself, was sufficient to cause 

the psychological condition. It may be that relator's claim should have been allowed for 

additional, more serious, back conditions; however, the fact remains that it was not. 

Because Dr. Drown's reports do not discuss the allowed condition of lumbosacral sprain, 

and whether or not relator's pain was actually attributable to that allowed condition, the 

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

This is not simply a factual disagreement as relator suggests. Relator's evidence simply 

was not sufficient to demonstrate that the psychological condition was proximately 

caused by the allowed physical condition in her claim. 

{¶ 47} Based on the foregoing, the magistrate finds the commission did not abuse 

its discretion when it exercised its continuing jurisdiction. As such, it is this magistrate's 

decision that this court should deny relator's request for 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).