[Cite as State ex rel. Cuckler v. Indus. Comm., 2015-Ohio-5081.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Mary L. Cuckler,                         :

                 Relator,                              :

v.                                                     :              No. 15AP-53

Industrial Commission of Ohio                          :           (REGULAR CALENDAR)
and Aadvantage Tent Fittings, Inc.,
                                                       :
                 Respondents.
                                                       :




                                         D E C I S I O N

                                    Rendered on December 8, 2015


                 Knisley Law Office, Kurt A. Knisley and Daniel S. Knisley,
                 for relator.

                 Michael DeWine, Attorney General, and LaTawnda N.
                 Moore, for respondent Industrial Commission of Ohio.

                 Scherner, Sybert & Rhoad, LLC, Brant K. Rhoad and
                 Matthew S. Goff, for respondent Aadvantage Tent Fittings,
                 Inc.

                                             IN MANDAMUS

BROWN, P.J.
        {¶ 1} Relator, Mary L. Cuckler, has filed an original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its orders finding that it did not have jurisdiction to adjudicate
the merits of relator's "First Report of an Injury, Occupational Disease or Death" form,
and further finding it did not have jurisdiction to adjudicate her application to have
additional conditions allowed in claim No. 13-811302, and ordering the commission to
No. 15AP-53                                                                                 2

exercise its continuing jurisdiction to process and adjudicate her request to be allowed to
participate in the workers' compensation system for injuries alleged to have occurred on
March 5, 2013.
       {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending that
this court deny relator's request for a writ of mandamus because relator has an alternative
remedy in the ordinary course of the law. No objections have been filed to that decision.
       {¶ 3} Finding no error of law or other defect on the face of the magistrate's
decision, this court adopts the magistrate's decision as our own, including the findings of
fact and conclusions of law. In accordance with the magistrate's recommendation, we
hereby deny relator's request for a writ of mandamus.
                                                               Writ of mandamus denied.

                           TYACK and DORRIAN, JJ., concur.

                               ____________________
[Cite as State ex rel. Cuckler v. Indus. Comm., 2015-Ohio-5081.]



                                              APPENDIX
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Mary L. Cuckler,                         :

                 Relator,                              :

v.                                                     :              No. 15AP-53

Industrial Commission of Ohio                          :           (REGULAR CALENDAR)
and Aadvantage Tent Fittings, Inc.,
                                                       :
                 Respondents.
                                                       :



                               MAGISTRATE'S DECISION

                                     Rendered on August 20, 2015



                 Knisley Law Office, Kurt A. Knisley, and Daniel Knisley, for
                 relator.

                 Michael DeWine, Attorney General, and LaTawnda N.
                 Moore, for respondent Industrial Commission of Ohio.

                 Scherner, Sybert & Rhoad, LLC, Brant K. Rhoad and
                 Matthew S. Goff, for respondent Aadvantage Tent Fittings,
                 Inc.


                                             IN MANDAMUS

        {¶ 4} Relator, Mary L. Cuckler, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its orders finding that it did not have jurisdiction to adjudicate
the merits of her First Report of an Injury, Occupational Disease or Death ("FROI-1")
form filed August 4, 2014, and further finding that it did not have jurisdiction to
adjudicate her application to have additional conditions allowed in claim No. 13-811302,
No. 15AP-53                                                                               4


which had been disallowed, and ordering the commission to exercise its continuing
jurisdiction to process and adjudicate her request that she be allowed to participate in the
workers' compensation system for injuries she alleges occurred on March 5, 2013.
Findings of Fact:
        {¶ 5} 1. Relator alleges that she sustained a work-related injury on March 5,
2013. Relator described the onset of injury as follows:
              I was lifting heavy poles (75 LBS each). I felt something pull
              in my back. I kept working. I was lifting other heavy items
              that day too. The next day I had to saw some boards in half.
              By the end of the day my back was hurting really bad and my
              fingers were numb. All weekend I couldn't move. Monday
              morning I was nauseous and I vomited a few times.

        {¶ 6} 2. On March 19, 2013, relator filed an application for workers'
compensation benefits.
        {¶ 7} 3. When relator's employer, Aadvantage Tent Fittings, Inc., was notified of
the claim, the employer refused to certify the claim.
        {¶ 8} 4. In an order mailed March 26, 2013, the administrator of the Ohio Bureau
of Workers' Compensation ("BWC") allowed claim No. 13-811302 for sprain lumbar
region. The BWC order was based on the office notes of Kirk M. Tucker, M.D., dated
March 11 and 14, 2013 and the office note of W. Bradley Strauch, M.D., dated March 19,
2013.
        {¶ 9} 5. In his March 11, 2013 office note, Dr. Tucker noted that relator informed
him that she had hurt her back while picking up a board weighing 75 pounds and that he
explained to her he did not deal with workers' compensation claims. He also noted that
relator presented that day to follow-up on what appeared to be worsening fibromyalgia.
Specifically, Dr. Tucker noted:
              Mary is here today to followup on what appears to be
              worsening fibromyalgia. Her job description changed
              recently where her job requires much more physical labor.
              She's noticing diffuse pain but it is worse in her low back left
              shoulder and elbow. She also has tingling in her fingers and
              toes. I reviewed previous blood work. She has been
              intolerant of multiple medications for fibromyalgia and I
              reviewed those today. I do not see that we have tried
              gabapentin. She currently takes Flexeril 5-10 mg at bedtime
              with Vicodin as needed for breakthrough discomfort in her
              back. She is tearful today but not suicidal.
No. 15AP-53                                                                                       5



                   ***

                   Diffuse pain and frustration worse in the low back left
                   shoulder and elbow.

           {¶ 10} In his March 14, 2013 office note, Dr. Tucker noted that relator was
following up on a back strain, hypothyroidism, fibromyalgia, and she indicated that she
was feeling a little bit better. Relator informed Dr. Tucker that she was anxious about
being able to return to work so that she would not loose her job. Dr. Tucker released
relator to return to work with a 30-pound weight limit for lifting.
           {¶ 11} In his March 19, 2013 report, Dr. Strauch noted that relator presented with
low back pain and had no history of back problems. After proving his physical findings
upon examination, Dr. Strauch indicated that he reviewed x-rays of her lumbar spine,
which showed some "mild L5-S1 disc space narrowing otherwise unremarkable."
           {¶ 12} 6. The employer appealed and the matter was heard before a district
hearing officer ("DHO") on July 2, 2013.                      The DHO vacated the prior order of the
administrator and disallowed relator's claim finding that she did not meet her burden of
demonstrating a work-related injury on March 5, 2013 as alleged. The DHO explained:
                   The District Hearing Officer finds that the Injured Worker
                   alleges an onset of left lower back pain on 03/05/2013 when
                   she bent over and picked up a bundle of tent stakes weighing
                   approximately 75 pounds. The District Hearing Officer finds
                   that medical documentation on file demonstrates that the
                   Injured Worker has suffered from fibromyalgia for several
                   years, at times affecting all "four quadrants of her body," per
                   Dr. Tucker's treatment records on file. N his 05/09/2013
                   report, Dr. Vogelstein1 referenced his examination findings
                   regarding the Injured Worker, reviewed the extensive
                   documentation on file regarding the Injured Worker's pre-
                   existing fibromyalgia, and persuasively indicated that the
                   requested diagnosis of lumbar sprain is not supported as a
                   result of the described lifting injury on 03/05/2013.
                   Accordingly, the District Hearing Officer finds that the claim
                   is DISALLOWED.

                   All evidence was reviewed and evaluated.




1   A copy of Dr. Vogelstein's report is not in the record.
No. 15AP-53                                                                             6


      {¶ 13} 7. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on August 22, 2013. The SHO affirmed the prior DHO order, stating:
              It is the finding of the Staff Hearing Officer that the applicant
              has not sustained her burd[e]n of proving an injury in the
              course and scope of employment on 03/05/2013 and the
              claim is denied.

              This decision is based on the 05/09/2013 report from Dr.
              Vogelstein. Dr. Tucker's 03/11/2013 treatment noting diffuse
              pain but worse in not only the low back but also the left
              shoulder and elbow, as well as his "physical examination"
              finding 6 days after the alleged injury of diffuse tenderness to
              even mild touch with pressure consistent with a flare of
              fibromyalgia symptoms, is found to support Dr. Vogelstein.

      {¶ 14} 8. Relator's further appeal was refused by order of the commission mailed
September 19, 2013.
      {¶ 15} 9. On October 21, 2013, relator filed a notice of appeal under R.C. 4125.512
in the Ross County Court of Common Pleas ("common pleas court").
      {¶ 16} 10. In a pretrial statement, relator indicated that she sought the right to
participate in the workers' compensation system not only for the lumbar sprain, but also
for a disc bulge and/or annular tears at L4-5 and/or L5-S1.
      {¶ 17} 11. Because she had not sought to have those conditions allowed
administratively, the BWC filed a motion in limine to exclude the introduction of any
evidence causally relating those conditions to relator's workers' compensation claim.
      {¶ 18} 12. The common pleas court granted the BWC's motion indicating that no
testimony, evidence or comment concerning the causal relationship to those additional
conditions would be permitted at the hearing.
      {¶ 19} 13. Based on the results of an MRI performed October 8, 2013, relator
completed a FROI-1 signed June 30, 2014 seeking to have her claim allowed for disc bulge
annular tears.
      {¶ 20} 14. On August 4, 2014, relator's attorney signed a C-86 form in claim No.
13-811302 asking that relator's claim be additionally allowed for "disc bulge and facet
arthropathy at L5-S1 annular tears at L4-5 and L5-S1."
      {¶ 21} 15. A DHO considered relator's FROI-1 and C-86 motions at a hearing on
October 22, 2014.     Finding that relator had already filed a claim, which had been
disallowed, the DHO dismissed her FROI-1, stating:
No. 15AP-53                                                                           7


              It is the order of the District Hearing Officer that the FROI-1
              First Report of an Injury, Occupational Disease or Death,
              filed 08/04/2014, is dismissed.

              Claimant's refiling of the FROI-1 is dismissed.

              This claim was already DISALLOWED in its entirety by Staff
              Hearing Officer order of 08/22/2013. Therefore, the matter
              is res judicata.

              Claimant's legal arguments are addressed in a separate order
              issued this same date which addresses the attempt to add
              additional conditions to this disallowed claim. That legal
              analysis is adopted in this order as well, and incorporated as
              if fully rewritten herein.

      {¶ 22} In a separate order, the DHO dismissed her C-86 motion asking that the
2013 claim be allowed for additional conditions finding that the commission did not have
jurisdiction over the matter.    The DHO explained relator's arguments and further
explained the reason why those arguments were rejected, stating:
              Claimant's request for additional conditions is DISMISSED
              as the Industrial Commission (IC) has no jurisdiction over
              this matter.

              This claim was disallowed in its entirety by Staff Hearing
              Officer order of 08/22/2013. I was appealed into court by
              Claimant. That court appeal is still pending at this time. The
              Industrial Commission has no jurisdiction to add conditions
              to a claim that is currently disallowed in its entirety. If
              Claimant is successful in getting the claim allowed on appeal
              THEN she can ask to add conditions to the claim.

              Claimant argues that jurisdiction exists because the Court of
              Common Pleas entered an order on 07/22/2014 entering a
              motion in limine to exclude all evidence of the disc bulges or
              tears at trial. District Hearing Officer disagrees. Nowhere in
              the Common Pleas Court's order does it remand the question
              of these conditions to the Industrial Commission. Claimant
              responds that the Industrial Commission's jurisdiction is
              implied under Ward v. Kroger Co., 106 Ohio St.3d 35 (2005).
              Again, District Hearing Officer disagrees. Unlike this case,
              Ward involved a claim that had been allowed for a
              condition. This claim has been disallowed IN ITS
              ENTIRETY. Therefore, the holding in Ward has absolutely
              nothing to do with today's hearing.
No. 15AP-53                                                                       8


              Ward involved an Injured Worker who had a claim allowed
              for a soft tissue injury who during a court appeal tried for the
              very first time to get new, more serious conditions added to
              the claim in court that had never been considered during the
              administrative process. The Court forbade this, saying that
              requests for specific conditions must first be addressed
              during the administrative process before they can be brought
              up on appeal into court. From this straight-forward holding
              in Ward, Claimant extrapolates two propositions of law (one
              procedural and one substantive) that DHO finds are not
              supported by the Court's decision.

              First, as a procedural matter, Claimant argues that Ward
              gives the IC authority to intervene WHILE THE MATTER IS
              STILL ON APPEAL to not only "add" conditions to a
              disallowed claim, but also change it from a disallowed claim
              to one that is allowed. [Claimant's new application for a
              claim is addressed by separate order entered this same date.]
              DHO disagrees. Whether or not Claimant should be
              permitted to participate in the workers' compensation
              system at all is the precise issue currently pending before the
              Common Pleas Court. The Injured Worker in Ward did not
              pursue the same question in front of the courts and the IC at
              the same time, nor did the Supreme Court's decision tell him
              he should have or even could have. Nothing in Ward gives
              the IC the power to usurp the courts' authority to rehear the
              exact same issue while it is still on appeal. Contrary to
              counsel's argument at hearing, there is no Due Process right
              to p[u]rsue the same question in two different forums at
              once. This claim is disallowed in its entirety and unless or
              until a court says Claimant has an allowed claim, the IC has
              no power to do anything. The unusual procedure urged by
              Claimant did not occur in Ward nor does the decision
              mention or contemplate concurrent jurisdiction for Claimant
              to try to get a claim allowed in both the Court of Common
              Pleas and he IC AT THE SAME TIME. The IC simply lacks
              jurisdiction to do anything in a disallowed claim while it is
              still on appeal to court.

              Second, Claimant argues that Ward creates a substantive
              rule of law that in EVERY claim that has been disallowed in
              is entirety, the Industrial Commission always has
              jurisdiction to address requests for additional conditions
              unless those conditions were specifically denied in the prior
              order. This is simply not the law in the State of Ohio, nor is it
              even remotely implied by Ward. Again, Ward involved a
              claim that had been allowed for something, not disallowed
              entirely as this one has been. Contrary to counsel's argument
No. 15AP-53                                                                            9


              at hearing when the IC disallows a claim in its entirety, it
              NEVER goes on to delineate the specific conditions that it
              also disallows. Despite counsel's insistence that claims which
              are disallowed in their entirety ALWAYS list what conditions
              they are disallowing because Ward requires them to, counsel
              was unable to produce or cite to one single example of this.
              No doubt ample time will exist before the Staff Hearing
              Officer hearing on the appeal of today's order for counsel to
              acquire examples of IC orders which disallow claims in their
              entirety and yet go on to list the specific conditions they are
              disallowing. Regardless, however, even if there were orders
              which said a claim is disallowed in its entirety and also
              disallowed for cervical sprain, this would NOT give that
              Claimant liberty to file a new claim for the exact same injury
              but this time allege a diagnosis of C6-7 disc bulge instead.
              Claimant's insistence that she has the ability to do precisely
              that is not only completely unsupported by the Ward
              decision, but also if permitted would throw the entire Ohio
              workers' compensation into disarray. Under Claimant's
              interpretation of Ward any previously disallowed claim could
              be relitigated ad infinitum as long as a new diagnosis was
              alleged each time. Such endless adjudication without
              possibility of finality was never contemplated by the
              Supreme Court when it issued the Ward decision, nor by the
              framers of the Ohio Constitution when it created workers'
              compensation.

              There is no deprivation of Due Process here. If and when
              Claimant gets an allowed claim she can attempt to add
              anything she wants to it. Until that time, however, the
              Industrial Commission lacks jurisdiction to do anything.

              District Hearing Officer considered everything that was
              written in the file and said at hearing.

(Emphasis sic.)

      {¶ 23} 16. Relator appealed and the matters were heard before an SHO on
December 11, 2014.      The SHO affirmed both DHO orders, first, finding that the
commission's determination to disallow claim No. 13-811302 constituted res judicata and
deprived the commission of jurisdiction to adjudicate the merits of relator's application
and, in dismissing her C-86 motion, the SHO adopted the DHO's reasoning.
      {¶ 24} 17. In orders mailed January 7, 2015, the commission refused relator's
appeals.
No. 15AP-53                                                                                10


         {¶ 25} 18. On January 21, 2015, relator refiled her complaint in the common pleas
court.
         {¶ 26} 19. On January 26, 2015, relator filed this mandamus action asserting that
the commission abused its discretion by not exercising jurisdiction over her FROI-1
and/or her C-86 motion.
         {¶ 27} 20. On January 27, 2015, relator filed a notice of appeal under R.C.
4123.512 in the common pleas court asking that she be allowed to participate in the
workers' compensation system for the conditions of disc bulge and facet arthropathy at
L5-S1, and annular tears at L4-5 and L5-S1.
         {¶ 28} 21. The matter is currently before the magistrate.
Conclusions of Law:
         {¶ 29} 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).
         {¶ 30} Finding that relator has an alternative remedy in the ordinary course of law,
the magistrate would deny her request for a writ of mandamus.
         {¶ 31} In the present case, relator maintains that she sustained a work-related
injury on March 5, 2013. However, the commission has denied her the right to participate
in the workers' compensation system. No claim has been allowed. Instead, relator has
two complaints pending in the common pleas court.              The first case involves the
commission's original denial of her request to participate in the workers' compensation
system for lumbar sprain. The second involves the commission's denial of her right to
participate in the workers' compensation system for disc bulge and facet arthropathy at
L5-S1, and annular tears at L4-5 and L5-S1. In the case presently before this court, relator
seeks a writ of mandamus asking this court to order the commission to either (a)
adjudicate her FROI-1 filed August 4, 2014, and/or (2) adjudicate her C-86 motion asking
that the originally disallowed claim be additionally allowed for certain more serious back
conditions.
         {¶ 32} Recently, the Supreme Court of Ohio decided State ex rel. Alhamarshah v.
Indus. Comm., 142 Ohio St.3d 524, 2015-Ohio-1357. In that case, Mustafa Alhamarshah
No. 15AP-53                                                                               11


alleged that he sustained a work-related injury while working as a laborer for Mohamed
Salem, d.b.a. Ballmohd, L.L.C. ("Salem"). The BWC allowed the claim against Salem as
the employer and ordered the payment of medical benefits and temporary total disability
("TTD") compensation. The order informed the parties that the decision would become
final unless a written appeal was received within 14 days and further advised the parties to
contact "Jolene M" at the BWC's Columbus Service Office with any questions. Id. at ¶ 4.
       {¶ 33} With the help of a friend, Salem telephoned Jolene about filing an appeal.
Salem asserted that there was no employer-employee relationship. The documents faxed
to the BWC failed to include the claim number or the date of the order being appealed.
Upon receipt, the words "construe as appeal" were hand-written on the cover page and
forwarded to the appeals section of the commission. Id. at ¶ 5.
       {¶ 34} The commission concluded that Salem's appeal substantially complied with
the requirements of R.C. 4123.511(F) and further found that there was no evidence that
Alhamarshah had been prejudiced by any omission in the notice of appeal.                The
commission then disallowed the claim on the merits, finding that Alhamarshah was not
an employee of Salem and the commission affirmed that order. Alhamarshah appealed to
the Franklin County Court of Common Pleas pursuant to R.C. 4123.512 and filed a
complaint for a writ of mandamus in the Franklin County Court of Appeals, alleging that
the commission's order determining that Salem's administrative appeal was valid was an
abuse of discretion and contrary to law.
       {¶ 35} Ultimately, the Supreme Court of Ohio determined that Alhamarshah was
not entitled to relief in mandamus because he had an adequate remedy in the ordinary
course of law by way of appeal under R.C. 4123.512, stating:
              Once the commission has issued a final order determining
              the claimant's entitlement to participate in the workers'
              compensation fund, any party may appeal the order, except
              for decisions as to the extent of disability, to the court of
              common pleas pursuant to R.C. 4123.512. R.C. 4123.511(E)
              and 4123.512(A); State ex rel. Liposchak v. Indus. Comm.,
              90 Ohio St.3d 276, 278–279, 737 N.E.2d 519 (2000). This
              court has held that decisions determining an employee's
              right to participate in the workers' compensation system
              because of a specific injury or occupational disease are
              appealable to the court of common pleas. Felty v. AT & T
              Technologies, Inc., 65 Ohio St.3d 234, 602 N.E.2d 1141
              (1992), paragraph one of the syllabus; Afrates v. Lorain, 63
              Ohio St.3d 22, 26, 584 N.E.2d 1175 (1992).
No. 15AP-53                                                                           12



                  The lack of an adequate remedy in the ordinary course of the
                  law is a necessary prerequisite for relief in mandamus. State
                  ex rel. Consolidation Coal Co. v. Indus. Comm., 18 Ohio
                  St.3d 281, 284, 480 N.E.2d 807 (1985), citing State ex rel.
                  Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 88, 218 N.E.2d 428
                  (1966). When the relator has a plain and adequate remedy at
                  law by way of appeal, courts lack authority to exercise
                  jurisdictional discretion and must deny the writ, regardless
                  of whether the relator used the remedy. Id.; State ex rel.
                  Davet v. Sutula, 8th Dist. Cuyahoga No. 96548, 2011-Ohio-
                  2803, 2011 WL 2409641, ¶ 10. This is a threshold question
                  that we must consider even when the court of appeals has
                  not addressed the issue. State ex rel. Woodbury v. Spitler,
                  40 Ohio St.2d 1, 3, 318 N.E.2d 165 (1974).

                  In this case, the commission decided that the documentation
                  submitted on behalf of the purported employer substantially
                  complied with the statutory requirements for a notice of an
                  appeal of the bureau's initial order. This decision conferred
                  jurisdiction on the commission to proceed to consider the
                  merits of the purported employer's appeal. The commission's
                  exercise of jurisdiction resulted in a decision denying the
                  claimant's right to participate in the workers' compensation
                  system. Consequently, the decision allowing the appeal to
                  proceed was essential to the ultimate determination that
                  denied the claimant's participation in the workers'
                  compensation system. As such, the commission's decision to
                  accept the appeal as valid was appealable pursuant to R.C.
                  4123.512. See Consolidation Coal Co. at 284–285, 480
                  N.E.2d 807.

Id. at ¶ 10-12.

       {¶ 36} Recently, in State ex rel. Johnson v. OSU Cancer Research Hosp., 10th Dist.
No. 14AP-430, 2015-Ohio-3249, this court addressed the applicability of the recent
Supreme Court of Ohio decision in Alhamarshah.
       {¶ 37} Eleanorene Johnson suffered an industrial injury in 2010 and her claim was
allowed for the following physical condition: sprain lumbosacral. On August 23, 2013,
Johnson filed a C-86 motion requesting that her claim be additionally allowed for the
following psychological condition: major depression, single episode, non-psychotic,
severe. A DHO disallowed Johnson's request. The matter came before the SHO on
October 18, 2013. The SHO granted Johnson's request and additionally allowed her claim
No. 15AP-53                                                                               13


to include the requested psychological condition. OSU attempted to appeal the SHO's
order, but the commission refused the appeal.
       {¶ 38} OSU then filed a request for reconsideration with the commission. On
January 9, 2014, the commission issued an order vacating the SHO's order and setting the
matter for a hearing. The commission concluded that the SHO's order contained a clear
mistake of law, as it failed to find that the requested psychological condition was causally
related to the allowed physical condition. The commission accordingly granted OSU's
request for reconsideration, and denied Johnson's request for the additional allowance.
       {¶ 39} Johnson filed a mandamus action in this court asserting that the
commission abused its discretion when it granted OSU's request for reconsideration and
asked that the commission be ordered to reinstate the SHO's order which allowed her
claim for the psychological condition.
       {¶ 40} OSU argued that this court did not have jurisdiction to hear the matter
asserting that it was a right to participate issue and Johnson had an adequate remedy at
law. As OSU asserted, if this court found the commission abused its discretion when it
determined the SHO's order contained a clear mistake of law, Johnson's claim would be
additionally allowed for a psychological condition and OSU would have to challenge that
allowance in common pleas court.
       {¶ 41} This court's magistrate found this court did have jurisdiction finding that
the commission's determination that it had continuing jurisdiction was reviewable here in
mandamus and could not be challenged elsewhere. Thereafter, the magistrate found that
the commission did not abuse its discretion when it exercised its continuing jurisdiction.
       {¶ 42} OSU filed an objection to the magistrate's decision and argued that,
pursuant to the Supreme Court of Ohio's recent decision in Alhamarshah, this court
should find that mandamus relief was inappropriate because Johnson had an adequate
remedy at law.      Finding that the commission's decision to exercise its continuing
jurisdiction resulted in a decision which denied Johnson the right to participate in the
workers' compensation system, this court found that the commission's decision was
"essential to the ultimate determination that denied [Johnson's] participation in the
workers' compensation system," and mandamus relief was inappropriate as Johnson had
an adequate remedy in the ordinary course of law by way of an appeal under R.C.
4123.512. Id. at ¶ 12.
No. 15AP-53                                                                               14


       {¶ 43} In the present case, just as in Alhamarshah, the commission has denied
relator's request to participate (for a specific condition) in the workers' compensation
system. As in Alhamarshah, relator has appeals pending in the common pleas court
pursuant to R.C. 4123.512. As in Alhamarshah, relator has also filed a mandamus action
in this court asserting that the commission's orders, which ultimately denied her the right
to participate, constitute an abuse of discretion and asks this court to order the
commission to consider her request to participate in the workers' compensation system
on its merits. As in Alhamarshah, the commission orders here were essential to the
ultimate determination that denied relator's participation in the workers' compensation
system and are appealable pursuant to R.C. 4123.512.
       {¶ 44} Based on the foregoing, it is this magistrate's decision that this court should
deny relator's request for a writ of mandamus because she has an alternative remedy in
the ordinary course of the law.




                                              /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).
