[Cite as State ex rel. Harborside of Cleveland Ltd. Partnership v. Indus. Comm., 2015-Ohio-5117.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel.                                :
Harborside of Cleveland
Limited Partnership,                                 :

                 Relator,                            :

v.                                                   :                           No. 14AP-1012

Industrial Commission of Ohio                        :                     (REGULAR CALENDAR)
and Pearlie E. Medley,
                                                     :
                 Respondents.
                                                     :




                                         D E C I S I O N

                                   Rendered on December 10, 2015


                 Ross, Brittain & Schonberg Co., LPA, and Michael J. Reidy
                 for relator.

                 Michael DeWine, Attorney General, and Patsy A. Thomas for
                 respondent Industrial Commission of Ohio.

                 Seaman & Associates, Michael I. Madden, and Shaun H.
                 Kedir for respondent Pearlie E. Medley.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, P.J.
        {¶ 1} Relator, Harborside of Cleveland Limited Partnership ("relator"), has filed
this original action requesting that this court issue a writ of mandamus ordering
respondent, Industrial Commission of Ohio ("commission"), to vacate its order that
granted an award of permanent total disability ("PTD") compensation to respondent,
No. 14AP-1012                                                                            2


Pearlie E. Medley ("claimant"), and deny claimant's request or, in the alternative, to
reconsider claimant's entitlement to PTD compensation after addressing relator's
argument that claimant sustained an intervening injury that broke the causal connection
between the allowed conditions in her claim and her disability.
       {¶ 2} This matter was referred to a court-appointed magistrate 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, and recommended
that this court grant relator's request for a writ of mandamus. Claimant and the
commission filed objections to the magistrate's decision; however, the commission
withdrew its objections.
       {¶ 3} Claimant presents the following four objections: (1) the magistrate erred
when she found that the commission abused its discretion in failing to address the issue of
intervening injury and proximate cause, (2) the magistrate erred in comparing this case to
State ex rel. Sheppard v. Indus. Comm., 139 Ohio St.3d 223, 2014-Ohio-1904, as that case
was decided on different facts and involved different arguments, (3) the magistrate
misinterpreted the holding in Sheppard and improperly expanded the law, and (4) the
magistrate erred when she failed to acknowledge in the restatement of facts that Dr.
Scott E. Singer did not change his opinion that claimant's PTD was caused by her allowed
conditions after being presented with evidence of potential pre-existing and intervening
events during his deposition.
       {¶ 4} The main thrust of claimant's four objections is that the commission's staff
hearing officer ("SHO") adequately addressed the issue of intervening injury and
proximate cause, consistent with Sheppard, when he stated that claimant was "unable to
perform any sustained remunerative employment solely as a result of the medical
impairment caused by the allowed conditions." (Emphasis added.) Claimant contends
that, by stating "soley as a result of," the SHO necessarily found there was no intervening
injury. We disagree. The Supreme Court of Ohio in Sheppard makes clear that an SHO's
failure to address an employer's critical argument that an intervening injury was the
actual cause of a claimant's condition is a clear mistake of law justifying the commission
to exercise continuing jurisdiction. Although claimant points out that, in Sheppard, the
SHO made no finding as to proximate cause whatsoever, whereas here the SHO did make
No. 14AP-1012                                                                             3


a finding as to proximate cause, we are not convinced that the SHO considered claimant's
intervening injury in making that probable cause determination. Given the Supreme
Court's clear and definitive opinion that the failure to consider an intervening injury is a
mistake of law, we do not believe we should be left to guess whether the SHO made a
mistake of law in this case. The better course under these circumstances is to grant
relator's request for a writ of mandamus and return the matter to the commission for
further consideration. Therefore, we overrule claimant's objections.
       {¶ 5} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of claimant's objections, we
overrule the objections and adopt the magistrate's findings of fact and conclusions of law.
Relator's writ of mandamus is granted.
                                         Objections overruled; writ of mandamus granted.

                                  SADLER, J., concurs.
                                 BRUNNER, J., dissents.

BRUNNER, J., dissenting.

       {¶ 6} I respectfully dissent from the decision of the majority. Claimant's suffered
work-related injury of January 14, 2001 was allowed for contusions of her back and
lumbar area and her left wrist and hand, a herniated disc at L3-4, aggravation of pre-
existing lumbar canal stenosis, and major depression. She had slipped and fallen while
leaving her work as a registered nurse at Harborside.        She did not return to work
following her injury. Following her application for permanent total disability ("PTD")
compensation, Jamie B. Lichstein, Psy.D., assessed a 31 percent whole person impairment
and found that claimant was permanently and totally disabled solely as a result of the
allowed psychological condition, major depression. In addition, Scott E. Singer, M.D.,
examined claimant and concluded that her allowed physical conditions had achieved
maximum medical improvement.          Dr. Singer assessed a 13 percent whole person
impairment and concluded that she could not perform sustained remunerative
employment solely as a result of the allowed physical conditions.
       {¶ 7} However, claimant sustained injuries unrelated to her employment, both
before and after January 14, 2001. She sustained an assault in 1979, a motor vehicle
No. 14AP-1012                                                                               4


accident in April 1990, a fall in February 1997, and two further motor vehicle accidents in
1998 and 2005. In a lawsuit resulting from the 2005 accident, claimant testified that her
back pain increased. At her deposition, Dr. Lichstein did not say with any degree of
certainty that the 2005 car accident would have altered her opinion, as she had been
treating claimant's depression before the accident.          Dr. Singer allowed that any
intervening injuries would be pertinent, particularly in view of claimant's statement that
she never returned to her "baseline" following the 2005 accident.
       {¶ 8} Relying on the reports of Drs. Lichstein and Singer, however, the
commission's staff hearing officer ("SHO") awarded PTD compensation to claimant and
did not discuss relator's contention that claimant had sustained an intervening injury.
The magistrate found that the SHO abused his discretion insofar as he failed to address
relator's argument that claimant had sustained an intervening injury, and decided that
this court should issue a writ of mandamus.
       {¶ 9} In order for the court to issue a writ of mandamus, relator must show that it
has a clear legal right to the relief sought and that the commission has a clear legal duty to
provide that relief. State ex rel. AutoZone, Inc. v. Indus. Comm., 117 Ohio St.3d 186,
2008-Ohio-541, ¶ 14. " 'The appropriate standard guiding our review is whether there is
"some evidence" in the record to support the commission's decision. * * * If so, then the
commission will not be deemed to have abused its discretion, and the granting of a writ of
mandamus to correct an abuse of discretion is not warranted.' " Id., State ex rel. Avalon
Precision Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, ¶ 9,
quoting State ex rel. Secreto v. Indus. Comm., 80 Ohio St.3d 581, 582-83 (1997).
       {¶ 10} Beyond the deposition testimony, relator did not adduce expert or medical
evidence in support of its argument that claimant had sustained an intervening injury. I
would sustain claimant's first objection to the magistrate's conclusion that the SHO's
order did not encompass relator's suggestion of an intervening injury. The SHO expressly
stated that claimant's disability was "solely as a result of the medical impairment caused
by the allowed conditions." The commission does not have to enumerate all the evidence
it considered, but only that on which it has relied to reach its decision. State ex rel.
DeMint v. Indus. Comm., 49 Ohio St.3d 19, 20 (1990). Since the commission listed the
evidence on which its order was based, the presumption of regularity attaches to its
No. 14AP-1012                                                                            5


proceedings and insofar as it indeed considered all the evidence before it. State ex rel.
Lovell v. Indus. Comm., 74 Ohio St.3d 250, 253-54 (1996).
       {¶ 11} Furthermore, the mere presence of non-allowed conditions does not
automatically bar PTD compensation. State ex rel. Waddle v. Indus. Comm., 67 Ohio
St.3d 452, 458 (1993). The reports of Drs. Lichstein and Singer adequately supported the
finding of PTD and also the scenario that "the nonindustrial disability may arise after the
industrial injury has already forced the claimant from his or her job." (Emphasis sic.) Id.
at 455. The commission could fairly conclude that claimant had met her burden of
showing that the allowed conditions independently caused her disability, and did not
combine with a non-allowed condition to produce the disability. See State ex rel. Bradley
v. Indus. Comm., 77 Ohio St.3d 239, 242 (1997).
       {¶ 12} Further supporting the SHO's determination was Dr. Singer's demurrer,
when he was asked at his deposition whether claimant's other accidents and injuries
changed his opinion. Dr. Singer, who gave his report on behalf of the Ohio Bureau of
Workers' Compensation, concurred with claimant's expert that she was unable to return
to work as a result of her employment-related injuries.
       {¶ 13} As relator did fail to sway Dr. Singer's opinion attributing PTD solely to
claimant's work-related injury, his opinion supported the commission's determination,
and I would sustain claimant's fourth objection to the magistrate's decision, along with
the first. The commission's order granting PTD compensation was supported by some
evidence, in the form and substance of Dr. Singer's opinion (along with Dr. Lichstein's),
and I would therefore find no abuse of discretion.
       {¶ 14} I agree with claimant that the magistrate's decision was based on an
unwarranted extension of the ruling in State ex rel. Sheppard v. Indus. Comm., 139 Ohio
St.3d 223, 2014-Ohio-1904. In Sheppard, the commission determined that the SHO had
failed to address the employer's critical argument that an intervening, non-work-related
back injury was the actual cause of Sheppard's condition. We denied Sheppard's
complaint for a writ of mandamus, which alleged that the commission should not have
exercised continuing jurisdiction and denied PTD compensation, and the Supreme Court
of Ohio affirmed.
No. 14AP-1012                                                                              6


       {¶ 15} Summarizing the applicable law, the Supreme Court stated:

               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 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.

Id. at ¶ 16.     The Supreme Court further stated, "[l]ike 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." Id. at ¶ 20. Ohio Adm.Code 4121-3-34(D)(1)(h) and (3)(e) require the
hearing officer to determine whether the claimant established proximate cause. The
SHO's order clearly evinces his consideration of the issue, as it expressly states that based
on the reports of Drs. Lichstein and Singer, claimant "is unable to perform any sustained
remunerative employment solely as a result of the medical impairment caused by the
allowed conditions."
       {¶ 16} The substantial holding in Sheppard is that "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." Id. at ¶ 22. The Supreme Court did not
mandate that the commission specifically expound any and all suggestions of an
intervening injury which may be raised in the proceedings before it. We cannot conclude
that the commission failed to examine all relevant facets of claimant's eligibility for
compensation, including relator's intervening injury argument.         Our limited review
No. 14AP-1012                                                                            7


discloses no abuse of discretion by the commission, and accordingly, we sustain
claimant's second and third objections to the magistrate's decision.
       {¶ 17} Though relator argues that claimant failed to disclose the 2005 accident,
and Dr. Singer did not review medical records of any subsequent treatment, the record
evinces no intent deliberately to mislead Dr. Singer or anyone else concerning the
accident. The commission nevertheless had evidence including the opinions of Drs.
Lichstein and Singer to support its finding of PTD based solely on the allowed conditions.
As a result of an independent review, pursuant to Civ.R. 53, I would sustain each of
claimant's objections to the magistrate's decision and deny relator's request for a writ of
mandamus.

                               ___________________
[Cite as State ex rel. Harborside of Cleveland Ltd. Partnership v. Indus. Comm., 2015-Ohio-5117.]



                                              APPENDIX
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                  :
Harborside of Cleveland
Limited Partnership,                                   :

                 Relator,                              :

v.                                                     :                         No. 14AP-1012

Industrial Commission of Ohio                          :                   (REGULAR CALENDAR)
and Pearlie E. Medley,
                                                       :
                 Respondents.
                                                       :




                               MAGISTRATE'S DECISION

                                      Rendered on June 23, 2015



                 Ross, Brittain & Schonberg Co., LPA, Michael J. Riedy, for
                 relator.

                 Seaman & Associates, Michael I. Madden, for respondent
                 Pearlie Medley.

                 Michael DeWine, Attorney General, and Patsy A. Thomas,
                 for respondent Industrial Commission of Ohio.


                                             IN MANDAMUS
        {¶ 18} Relator, Harborside of Cleveland Limited Partnership, has filed this original
action requesting that this court issue a writ of mandamus ordering respondent,
Industrial Commission of Ohio ("commission"), to vacate its order which granted an
award of permanent total disability ("PTD") compensation to respondent, Pearlie E.
Medley ("claimant"), and deny claimant's request or, in the alternative, to reconsider
No. 14AP-1012                                                                          9


claimant's entitlement to PTD compensation after addressing relator's argument that
claimant sustained an intervening injury which broke the causal connection between the
allowed conditions in her claim and her disability.
Findings of Fact:
        {¶ 19} 1. Claimant sustained a work-related injury on January 14, 2001 and her
workers' compensation claim has been allowed for the following conditions:
              Contusion of lumbar area; contusion left wrist; contusion left
              hand; contusion of back; herniated disc at L3-4; aggravation
              of pre-existing lumbar canal stenosis; major depression.

        {¶ 20} 2. Claimant's claim has been specifically disallowed for the following
conditions: "cervical sprain; aggravation of cervical stenosis."
        {¶ 21} 3. Claimant filed her application for PTD compensation on September 27,
2013.
        {¶ 22} 4. On February 11, 2014, Jamie B. Lichstein, PSY.D., examined claimant for
the allowed psychological condition in her claim. In support of her application for PTD
compensation, claimant submitted the report of Dr. Lichstein who noted the history of
her present condition, stating:
              The claimant was injured during the course of her work as a
              registered nurse for Harborside Healthcare Corporation. The
              claimant was exiting the building when she slipped and fell o
              nice. She sustained back, neck, and wrist injuries. Ms.
              Murray became agitated at this point in the interview and
              she explained that her claim has only been recognized for her
              back and wrist because she "only mentioned" her "neck in
              the emergency room." She has received ongoing medical care
              since the time of her initial injury.

              Ms. Murray has also been symptomatic (by her report) for
              depression since early on as well. Ms. Murray explained that
              she though she was "handling it" and "managing" because
              she was a "nurse." Although she did not recall the exact year;
              the record indicates that she sought treatment for depression
              in 2003. She has not had surgery since the injury. The most
              severe physical pain was reported to be in her "lower back"
              and she added that the pain "fans out down my extremities."
              Ms. Murray reported that she believes her depression is not
              the result of her pain; rather, she sees her depression as her
              "inability to do." Ms. Murray explained, "The loss of my
              career." She again stated, "It's not the pain. It's the loss of
              abilities." She reported that she has not ever returned to
No. 14AP-1012                                                                          10


              work since the date of injury. She stated, "I was not ever able
              to and I was not ever released to." She went on to report, "My
              doctors said I couldn't do it. I wasn't released to."

       {¶ 23} Ultimately, Dr. Lichstein assessed a 31 percent whole person impairment
and found that claimant was permanently and totally disabled solely as a result of the
allowed psychological conditions, stating:
              She has moderate functional limitations due to the allowed
              psychological condition of Major Depression. Ms. Murray
              would be unable to focus and concentrate in an environment
              that expected attention to detail and sustained
              concentration. Ms. Murray experiences crying spells, low
              energy, and a cognitive focus on her loss of abilities. These
              symptoms are likely to distract her from the task at hand and
              make it difficult for her [to] engage socially with others. Her
              coping skills for tolerating stress are quite reduced. In
              response to her injury, limitations, and strained
              circumstances, Ms. Murray has withdrawn, and she does not
              even attempt to get out and engage with others. There is a
              considerable amount of shame associated with her current
              status. Ms. Murray was proud of her career and her ability to
              be self-sufficient. She has become resentful that she can no
              longer work and continue to take care of others. In many
              ways she is struggling to take care of herself. She spends
              considerable time focusing on her ongoing pain and
              impairment, and she has little energy or motivation.
              Interpersonally, Ms. Murray is irritable with others and she
              continues to experience significant sadness to the point of
              suicidal ideation at times. She would be unable to tolerate a
              stressful environment of any kind.

       {¶ 24} 5. Claimant was also examined by Scott E. Singer, M.D. In his March 12,
2014 report, Dr. Singer identified the allowed physical conditions in claimant's claim and
noted the following under her past medical history:
              In addition to the above, the injured worker reported that
              her medical history is significant for sarcoidosis, arthritis in
              her knees and hyperparathyroidism. Her surgical history is
              significant for bilateral knee surgeries and a lung biopsy. No
              other pertinent positive medical history was reported.

       {¶ 25} Dr. Singer identified the medical records which he reviewed, provided his
physical findings upon examination, and concluded that claimant's allowed physical
conditions had reached maximum medical improvement ("MMI"), assessed a 13 percent
No. 14AP-1012                                                                            11


whole person impairment, and ultimately concluded that claimant was incapable of
performing some sustained remunerative employment solely as a result of the allowed
physical conditions in her claim.
       {¶ 26} 6. Relator deposed both Drs. Lichstein and Singer to inquire whether they
were aware that claimant had been involved in non-work related accidents that occurred
both before and after her January 14, 2001 industrial injury.          Specifically, relator
presented evidence which claimant does not contest, that she was assaulted in 1979,
involved in a motor vehicle accident in April 1990, fell in her driveway in February 1997,
was involved in a second motor vehicle accident in 1998, and a third motor vehicle
accident in July 2005. During the depositions of these two doctors, both Drs. Lichstein
and Singer indicated that claimant had not informed them that she had sustained any
other injuries other than the work-related injury for which they examined her.
Apparently, claimant was involved in a lawsuit for the 2005 motor vehicle accident and
essentially testified that her back pain increased after this motor vehicle accident and
remained increased (i.e., never returned to baseline). (Tr. 354.)
       {¶ 27} 7. When Dr. Lichstein was asked whether this new information may have
changed her prior opinion concerning PTD, Dr. Lichstein stated:
              Its hard to say. I mean, the one thing I will say is that all of
              the medical evidence that occurred prior to the work-related
              injury. She was working successfully and, by her report,
              engaging in her church, in her community with her children,
              with her grandchildren.

              So most -- those medical records most likely would not have
              affected my opinion on her depression because she wasn't
              even in the report that we did in February of this year. She
              was not reporting symptoms prior to the work-related injury.
              You know, how to tease (sic) out a car accident that occurred
              after she already had sought treatment for depression for the
              work-related injury -- you know, would it have changed my
              mind in February? I don't know. I don't think so. I mean, I
              think it might have. As she said in her deposition, she was
              referring to her physical symptoms. It might have
              exacerbated her emotional symptoms as well. But she was
              already reporting that she was depressed at that time. But at
              least she was reporting to me in February of this year and the
              record indicates that she sought treatment for a mood
              disorder earlier than 2005.
No. 14AP-1012                                                                               12


          {¶ 28} 8. Dr. Singer was also deposed and acknowledged claimant had not told

him about these other injuries. When asked whether or not this new medical evidence

was relevant to the question of whether or not she was permanently and totally disabled,

Dr. Singer stated that it was. Further, when asked whether or not these other injuries

were pertinent, Dr. Singer stated:

                 Well, they are pertinent, I mean, especially if you're making a
                 determination on someone's ability to work, making that
                 determination based on a specific injury or claim-related
                 conditions. Her history of what might have happened since
                 then or any intervening injuries would be pertinent.

(Tr. 23.)

          {¶ 29} Dr. Singer found it particularly relevant that claimant testified that "she
never got back to her baseline after the accident." (Tr. 26.)
          {¶ 30} 9. Claimant's application for PTD compensation was heard before a staff
hearing officer ("SHO") on September 4, 2014. The SHO determined that claimant was
entitled to PTD compensation and relied exclusively on the reports of Drs. Lichstein and
Singer. Because the SHO determined that claimant was unable to perform any sustained
remunerative employment solely as a result of the medical impairment caused by the
allowed conditions, the SHO did not address the non-medical disability factors pursuant
to State ex rel. Speelman v. Indus. Comm., 73 Ohio App.3d 757 (10th Dist.1992). Further,
the SHO did not discuss relator's contention that claimant had sustained an intervening
injury.
          {¶ 31} 10. Relator filed a request for reconsideration which was denied by order of
the commission mailed October 17, 2014.
          {¶ 32} 11. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
          {¶ 33} 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).
No. 14AP-1012                                                                             13


       {¶ 34} Finding that the Supreme Court of Ohio's decision in State ex rel. Sheppard
v. Indus. Comm. of Ohio, 139 Ohio St.3d 223, 2014-Ohio-1755 applies, it is this
magistrate's decision that this court should issue a writ of mandamus.
       {¶ 35} Robert L. Sheppard sustained a work-related injury on October 9, 1997, and
his claim was allowed for lumbosacral sprain and a herniated disc.           Sheppard also
suffered from degenerative disc disease which was not related to the industrial injury. In
February 2002, Sheppard reinjured his back in an incident that was not work-related. In
2004, when Sheppard retired, an MRI indicated that his herniated disc had resolved.
       {¶ 36} In 2006, Sheppard filed a motion to reactivate his claim to pay for further
medical treatment.      The commission determined the treatment was related to the
degenerative disc disease, a non-allowed condition, and denied the motion. On March 5,
2010, Sheppard filed an application for PTD compensation and, following a hearing, an
SHO granted the application based on the opinion of Dr. Richard M. Ward. Although the
hearing officer identified Sheppard's non-medical disability factors, the SHO did not
analyze their effect on his ability to work.
       {¶ 37} Sheppard's former employer filed a request for reconsideration arguing that
the SHO's order contained a clear mistake of law because the SHO failed to address the
employer's critical argument regarding the 2002 intervening injury. Following a hearing,
the commission agreed that the SHO order contained a clear mistake of law; specifically,
the SHO's failure to address the employer's critical argument alleging that the 2002
intervening injury was the actual cause of Sheppard's condition, and ultimately denied
Sheppard's request for PTD compensation.
       {¶ 38} Sheppard filed a mandamus action in this court alleging the commission
abused its discretion when it exercised continuing jurisdiction and denied his application
for PTD compensation. This court overruled Sheppard's objections to the magistrate's
decision and found the SHO's failure to address an issue raise by the employer constitutes
a mistake of law sufficient for the commission to invoke its continuing jurisdiction.
Sheppard appealed this court's decision.
       {¶ 39} The Supreme Court of Ohio upheld this court's decision finding the
commission did not abuse its discretion when it exercised its continuing jurisdiction
because the SHO's failure to address the intervening injury argument was a mistake of law
that justified the commission's reopening of the claim. Specifically, the court stated:
No. 14AP-1012                                                                   14


              The court of appeals relied on Mackey, 2010-Ohio-3522,
              2010 WL 2979022, 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.

              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.

              Sheppard argues that Mackey is distinguishable because it
              involves voluntary abandonment, an issue that Ohio
              Adm.Code 4121-3-34(D)(1)(d) requires a hearing officer to
              address, whereas there is no similar requirement that a
              hearing officer address an argument involving an intervening
              injury.

              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).

Id. at ¶ 17-20.
No. 14AP-1012                                                                         15



      {¶ 40} Both the commission and claimant argue that the SHO sufficiently
addressed and rejected relator's argument that intervening injuries broke the causal
connection between claimant's work-related allowed conditions and any disability when
the SHO indicated that claimant was "unable to perform any sustained remunerative
employment solely as a result of the medical impairment caused by the allowed
conditions." They argue that no further explanation was necessary.
      {¶ 41} The magistrate rejects this argument noting this same argument had also
been made in Sheppard.      Contrary to their argument, it is not clear that the SHO
addressed and rejected relator's argument concerning intervening injury. Claimant, a
nurse, testified that, after the 2005 injury, she never returned to baseline. This 2005
injury occurred after the date of injury in her claim and claimant never provided the
examining physicians with any information concerning her diagnosis or treatment.
Relator raised this argument and the SHO did not address it.
      {¶ 42} In the present case, there is no doubt that relator raised the issue that
claimant had sustained an intervening injury which she had not reported to the
examining physicians and the SHO failed to address this issue when the SHO granted
claimant's application for PTD compensation.         Like voluntary abandonment, an
intervening injury is critical to the issue of proximate cause and to determining whether
claimant is eligible for PTD compensation. The magistrate finds that the SHO's failure to
address the intervening injury argument constitutes an abuse of discretion and this court
should issue a writ of mandamus ordering the commission to vacate its order awarding
claimant PTD compensation and requiring the commission to reconsider the matter in a
manner consistent with this decision.




                                            /S/ MAGISTRATE
                                            STEPHANIE BISCA
No. 14AP-1012                                                                   16


                            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).
