[Cite as State ex rel. Sheppard v. Indus. Comm., 139 Ohio St.3d 223, 2014-Ohio-1904.] 

THE STATE EX REL. SHEPPARD, APPELLANT, v. INDUSTRIAL COMMISSION 

OF OHIO ET AL., APPELLEES. 

[Cite as State ex rel. Sheppard v. Indus. Comm., 139 Ohio St.3d 223, 

2014-Ohio-1904.] 

Workers’ compensation—Permanent total disability—R.C. 4123.52—Continuing 

jurisdiction of Industrial Commission—Clear mistake of law as basis for 

granting reconsideration—Commission does not abuse discretion by 

exercising continuing jurisdiction to correct order granting permanenttotal-disability benefits when order failed to address employer’s 

argument regarding an intervening injury—Once jurisdiction is invoked, 

commission has discretion to reexamine all evidence and decide claim on 

its merits. 

(No. 2012-1755—Submitted February 4, 2014—Decided May 7, 2014.) 

APPEAL from the Court of Appeals for Franklin County, No. 11AP-553, 

2012-Ohio-4301. 

____________________

Per Curiam. 

{¶ 1} Robert L. Sheppard has appealed the judgment of the court of 

appeals denying his request for a writ of mandamus. The court of appeals 

concluded that the Industrial Commission did not abuse its discretion when it 

invoked its continuing jurisdiction to reconsider a mistake of law and that the 

commission’s continuing jurisdiction vested it with authority to review the merits 

of the underlying application for permanent-total-disability compensation. 

{¶ 2} For the reasons that follow, we affirm the judgment of the court of 

appeals. 
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{¶ 3} On October 9, 1997, Sheppard was injured while working for 

Shelly & Sands, Inc., a self-insured employer. His workers’ compensation claim 

was allowed for lumbosacral sprain and a herniated disc. Sheppard also suffered 

from degenerative disc disease not related to his industrial injury. Furthermore, in 

February 2002, he reinjured his back. That incident was apparently not workrelated; in any event, no claim has been allowed for the 2002 injury. In 2004, 

Sheppard took early retirement. MRI results around that time confirmed that his 

herniated disc had resolved. 

{¶ 4} In 2006, Sheppard filed a motion to reactivate his claim to pay for 

further medical treatment. The commission determined that the treatment was 

related to his degenerative disc disease, a nonallowed condition, and denied his 

motion. 

{¶ 5} On March 5, 2010, Sheppard filed an application for permanenttotal-disability compensation. Following a hearing, a staff hearing officer granted 

the application based on the opinion of Dr. Richard M. Ward. The hearing officer 

also identified Sheppard’s nonmedical disability factors but did not analyze their 

effect on his inability to work. 

{¶ 6} Shelly & Sands, Sheppard’s former employer, filed a request for 

reconsideration on the basis that the staff hearing officer’s order contained 

mistakes of both fact and law. The commission issued an interlocutory order 

finding that the staff hearing officer failed to address the employer’s critical 

argument regarding the 2002 intervening injury and that this omission was a clear 

mistake of law justifying a further hearing on the matter to address the issues of 

continuing jurisdiction and permanent total disability. 

{¶ 7} Following that hearing, the commission issued a detailed order that 

(1) confirmed that the staff hearing officer’s order contained a clear mistake of 

law, specifically, his failure to address the employer’s critical argument alleging 

that the 2002 intervening injury was the actual cause of Sheppard’s condition, (2) 
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concluded that there was insufficient evidence that the intervening injury broke 

the causal connection between Sheppard’s current symptoms and the allowed 

conditions of his claim, and (3) denied the underlying request for permanent-totaldisability compensation based on the report of Dr. Charles Lowrey and an 

analysis of Sheppard’s nonmedical disability factors. 

{¶ 8} Sheppard filed a complaint for a writ of mandamus alleging that 

the commission had abused its discretion when it exercised continuing jurisdiction 

and denied permanent-total-disability compensation. A magistrate concluded that 

the commission had not abused its discretion and recommended that the court 

deny the writ. 

{¶ 9} Sheppard filed objections to the magistrate’s report. First, he 

argued that the magistrate never explained why the hearing officer’s failure to 

address the intervening-injury argument was a mistake of law, and second, he 

objected to the magistrate’s conclusion that the commission had authority to 

reexamine the evidence of permanent total disability after finding that there was 

no intervening injury. 

{¶ 10} The court of appeals overruled the objections and denied the writ. 

The court cited State ex rel. Mackey v. Ohio Dept. of Edn., 10th Dist. Franklin No. 

09AP-966, 2010-Ohio-3522, for the proposition that a staff hearing officer’s 

failure to address an issue raised by an employer constitutes a mistake of law 

sufficient for the commission to invoke its continuing jurisdiction. The appellate 

court refused to assume that the hearing officer’s failure to address the 

intervening-injury argument meant that he had rejected it. The court also 

concluded that once the commission invoked its continuing jurisdiction, it had 

authority to reconsider the issue of permanent total disability. 

{¶ 11} Sheppard filed this appeal as of right. 

{¶ 12} To be entitled to the extraordinary remedy of a writ of mandamus, 

Sheppard must show that the commission abused its discretion in carrying out its 
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duties. State ex rel. Gen. Motors Corp. v. Indus. Comm., 117 Ohio St.3d 480, 

2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9. Sheppard maintains that the 

commission’s decision to exercise continuing jurisdiction to review what it 

described as a mistake of law was an abuse of discretion. 

{¶ 13} Sheppard raises the following issues: (1) whether the staff hearing 

officer’s failure to address the intervening injury constituted a mistake of law 

justifying the exercise of continuing jurisdiction and, if so, (2) whether the 

commission’s continuing jurisdiction vested it with authority to issue a new order 

that denied permanent-total-disability compensation. 

The Commission’s Continuing Jurisdiction 

{¶ 14} R.C. 4123.52 provides the Industrial Commission with continuing 

jurisdiction over each case to modify or change former findings or orders. But 

this authority is not unlimited. It can be invoked only when there is evidence of 

“(1) new and changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear 

mistake of law, or (5) error by [an] inferior tribunal.” State ex rel. Nicholls v. 

Indus. Comm., 81 Ohio St.3d 454, 459, 692 N.E.2d 188 (1998). The commission 

is required to identify and explain the basis for invoking its continuing 

jurisdiction. State ex rel. Lowe v. Cincinnati, Inc., 124 Ohio St.3d 204, 2009-

Ohio-5864, 921 N.E.2d 205, ¶ 17. 

{¶ 15} Here, the commission determined that the staff hearing officer’s 

failure to address the employer’s critical argument about an intervening injury 

was a mistake of law. Sheppard contends that the hearing officer was not 

required to address an intervening injury; thus, failure to address the issue was not 

a mistake of law justifying the exercise of continuing jurisdiction. 

{¶ 16} Permanent total disability is defined as the inability to perform 

sustained remunerative employment as a result of the allowed conditions in the 

claim. Ohio Adm.Code 4121-3-34(B)(1); State ex rel. Nissin Brake Ohio, Inc. v. 

Indus. Comm., 127 Ohio St.3d 385, 2010-Ohio-6135, 939 N.E.2d 1242, ¶ 12. The 
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burden is on the claimant to establish that the disability is permanent and that the 

inability to work is causally related to the allowed conditions. Ohio Adm.Code 

4121-3-34(D)(3)(a); State ex rel. LTV Steel Co. v. Indus. Comm., 65 Ohio St.3d 

22, 23, 599 N.E.2d 265 (1992). An intervening injury is one that is not related to 

the allowed claim and breaks the causal connection between the industrial injury 

and the disability. Cascone v. Herb Kay Co., 6 Ohio St.3d 155, 451 N.E.2d 815 

(1983). An intervening injury could eliminate the industrial injury as the 

proximate cause of the inability to work and thus destroy the claimant’s eligibility 

for permanent-total-disability compensation. 

{¶ 17} The court of appeals relied on Mackey, 2010-Ohio-3522, as 

authority that a hearing officer’s failure to address an issue raised by an employer 

constitutes a mistake of law sufficient for the commission to invoke its continuing 

jurisdiction. In Mackey, the hearing officer awarded the claimant compensation 

for permanent total disability, but the order did not address the employer’s 

argument that the claimant had voluntarily retired. Mackey’s employer moved for 

reconsideration, alleging that the hearing officer had made a clear mistake of law 

when he failed to address the issue of voluntary abandonment of employment. 

The commission agreed. Upon reconsideration, the commission found that 

Mackey had voluntarily retired and was ineligible for permanent-total-disability 

compensation. 

{¶ 18} We affirmed. 130 Ohio St.3d 108, 2011-Ohio-4910, 955 N.E.2d 

1005. We held that because the issue of voluntary abandonment was critical to 

Mackey’s eligibility for an award, the hearing officer’s failure to address the issue 

was a clear mistake of law, and the commission did not abuse its discretion when 

it reopened the issue of Mackey’s eligibility for compensation in order to consider 

the effect of Mackey’s retirement. Id., ¶ 5. 

{¶ 19} Sheppard argues that Mackey is distinguishable because it involves 

voluntary abandonment, an issue that Ohio Adm.Code 4121-3-34(D)(1)(d) 
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requires a hearing officer to address, whereas there is no similar requirement that 

a hearing officer address an argument involving an intervening injury. 

{¶ 20} Sheppard’s narrow focus on the particular issue of voluntary 

retirement fails to acknowledge other factors that the commission must consider 

in evaluating proximate cause and ultimately, the claimant’s eligibility for 

benefits. Like voluntary retirement or abandonment of employment, an 

intervening injury is critical to the issue of proximate cause and to determining 

whether the claimant is eligible for permanent-total-disability compensation. It is 

true that the commission’s administrative guidelines expressly require the hearing 

officer to address the issue of voluntary abandonment, Ohio Adm.Code 4121-3-

34(D)(1)(d), but the Code also requires the hearing officer to specifically 

determine whether the claimant established proximate cause. Ohio Adm.Code 

4121-3-34(D)(1)(h) and (3)(e). 

{¶ 21} Sheppard also argues that there is no indication in the record that 

the employer actually brought the intervening injury to the hearing officer’s 

attention during the hearing. Sheppard did not raise this argument below; thus, it 

is waived. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81-83, 

679 N.E.2d 706 (1997). Nevertheless, there is no dispute that the record 

contained evidence substantiating the 2002 injury. Furthermore, a hearing officer 

is required to review all relevant factors in the record that may affect the 

claimant’s ability to work, Ohio Adm.Code 4121-3-34(D)(3)(g), and the 2002 

injury would be one of those factors. 

{¶ 22} Therefore, the commission did not abuse its discretion when it 

determined that the hearing officer’s failure to address the intervening-injury 

argument was a mistake of law that justified the commission’s reopening the 

claim to examine the issue. Mackey, 130 Ohio St.3d 108, 2011-Ohio-4910, 955 

N.E.2d 1005. Once the commission specifically identified the grounds that 
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constituted a mistake of law, the commission did not abuse its discretion in 

exercising its continuing jurisdiction. 

The Commission’s Authority to Modify or Change a Former Order 

{¶ 23} Sheppard contends that once the commission determined that there 

was insufficient evidence that an intervening injury broke the causal connection 

between his allowed conditions and his inability to work, it did not have authority 

to review the merits of his underlying application and deny his request for 

compensation. 

{¶ 24} R.C. 4123.52(A) confers broad authority on the commission to 

“make such modification or change” to a former finding or order “as, in its 

opinion, is justified.” The commission’s broad authority under R.C. 4123.52 

permits it to address any issues pertaining to the order in question. State ex rel. 

Haddox v. Indus. Comm., 135 Ohio St.3d 307, 2013-Ohio-794, 986 N.E.2d 939, 

¶ 32. When the commission granted the employer’s request to reconsider and 

exercised its continuing jurisdiction, it vacated the underlying order of the staff 

hearing officer. Once the commission vacated the entire order, it was required to 

reexamine all facets of Sheppard’s eligibility for compensation. See State ex rel. 

York Internatl. Corp. v. Kopis, 114 Ohio St.3d 442, 2007-Ohio-4556, 872 N.E.2d 

1221, ¶ 9. This reexamination legitimately included not only evidence of the 

intervening injury, but also all the evidence on the merits of the underlying 

request for permanent-total-disability compensation. 

{¶ 25} Accordingly, we affirm the judgment of the court of appeals. 

Judgment affirmed. 

O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and

O’NEILL, JJ., concur. 

PFEIFER, J., dissents. 

____________________ 
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PFEIFER, J., dissenting. 

{¶ 26} Robert L. Sheppard filed an application for permanent-totaldisability compensation, which was granted. For whatever reason, the hearing 

officer who granted the application failed to consider the effect of an intervening 

injury. The employer filed a request for reconsideration, based on the hearing 

officer’s failure to consider that issue. The commission reviewed the matter and 

agreed that the intervening injury had not been properly considered. Then, after a 

hearing, the commission considered the intervening injury and concluded that 

there was insufficient evidence to conclude that the injury had broken the causal 

connection between Sheppard’s current symptoms and the allowed conditions of 

his claim. 

{¶ 27} In a just world, that would have been the end of the matter. But 

even though the legitimate reason for the reconsideration request had been 

determined to be insufficient to undermine the grant of compensation, the 

commission, as part of its continuing jurisdiction, decided to review the entire 

claim. Reviewing a different medical report than the hearing officer had 

reviewed, the commission concluded that Sheppard’s application for permanenttotal-disability compensation should not be granted. 

{¶ 28} This process and the ensuing result strike me as unfair to Sheppard. 

There is no reason to believe that his claim would have been reviewed absent the 

appeal by his employer, in which case, his claim would have remained 

undisturbed. That an appeal, which, though legitimate, ultimately proved to be 

without merit, has nevertheless resulted in Sheppard’s claim being denied is a bigpicture cause for concern. 

{¶ 29} Losers in workers’ compensation claims, whether employers or 

employees, will now have incentive to scour records to search for any conceivable 

mistake of law, however trivial. Even if the reason for reconsideration is not 

sufficient to lead to a different result, the party will have reason to hope that the 
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commission will review the entire claim, as part of its ongoing jurisdiction. That 

party will hope for a different result, whether because of a report from a different 

doctor or for any number of reasons. The upshot of the decision today is that 

parties in workers’ compensation cases will have little prospect of finality, even 

barring a change in health or other circumstance, and every incentive to prolong 

the process as much as possible. Under the reasoning of today’s decision, there is 

always a chance that the commission will reach a different result and that a party, 

again, whether employer or employee, will get multiple chances to obtain its 

desired result. 

{¶ 30} I dissent. 

___________________ 

Philip J. Fulton Law Office, Chelsea J. Fulton, and Philip J. Fulton, for 

appellant. 

Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant 

Attorney General, for appellee Industrial Commission. 

Hanna, Campbell & Powell, L.L.P., and Lori A. Whitten, for appellee 

Shelly & Sands, Inc. 

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