[Cite as State ex rel. Dailey v. Indus. Comm., 2019-Ohio-2520.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Kevin A. Dailey,                      :

                 Relator,                               :

v.                                                      :            No. 17AP-675

Industrial Commission of Ohio et al.,                   :         (REGULAR CALENDAR)

                 Respondents.                           :



                                              DECISION

                                      Rendered on June 25, 2019


                 On brief: Knisley Law Offices, and Kurt A. Knisley, for
                 relator.

                 On brief: Dave Yost, Attorney General, and Natalie J.
                 Tackett, for respondent Industrial Commission of Ohio.

                 On brief: Dave Yost, Attorney General, and Michael J.
                 Roche, for respondent Hocking Technical College.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

NELSON, J.
        {¶ 1} For all the procedural wrangling in this case, the matter boils down to
something pretty simple. We're not going to grant a writ of mandamus ordering the
Industrial Commission of Ohio to hear and rule on something that it already has decided
on its own, and we're not going to grant a writ of mandamus against the commission
requiring it to rule one way when its decision going the other could be—and in fact is—on
direct appeal to a Common Pleas Court of competent jurisdiction.
        {¶ 2} The matter has taken some twists and turns, but a rough summary of where
things now stand essentially disposes of the requested extraordinary writ. Relator Kevin
No. 17AP-675                                                                               2

Dailey has sought to be allowed to participate in the workers' compensation fund for an
injury claim of "myocardial infarction" and for "coronary artery disease." The commission
has allowed his claim for the myocardial infarction. The commission has denied his request
for the "Additional Allowance" of coronary artery disease. See, e.g., Ev. Stip. 37 (Staff
Hearing Officer Order mailed June 7, 2016), 38 (commission refuses administrative appeal,
June 28, 2016). Mr. Dailey has appealed that condition denial to the Athens County Court
of Common Pleas, and has filed a complaint and jury demand there asking that "he be
permitted to participate in the benefits of the State Insurance Fund for the additional
condition of coronary artery disease * * *." Ev. Stip. 46 ("Re-Filed Complaint and Jury
Demand time-stamped 1/18/2017"); Ev. Stip. 39 ("Notice of Appeal Under Section
4123.512," reciting that appeal is from commission's 06/28/2016 refusal of his
administrative appeal from the Staff Hearing Officer's denial of his motion to have coronary
artery disease as an additional allowed condition).
       {¶ 3} We provide a truncated version of the procedural history of these claims
below. There should be no suspense, though, as to our role here: Because the Commission
has ruled on the coronary artery disease claim, and because Mr. Dailey has (and is
pursuing) an adequate remedy at law under R.C. 4123.512 by which to address his
disagreement with that ruling, we will dismiss the petition for the requested writ.
       {¶ 4} On September 22, 2017, Kevin A. Dailey filed his petition asking this court for
a writ of mandamus directing the commission either to reinstate a Staff Hearing Officer's
order from 2014 allowing his worker's compensation claim for coronary artery disease, or
to hold a new hearing on that claim in light of the commission's "duty to consider the merits
of Relator's request to participate in the State Fund for coronary artery disease." Petition
at ¶ 25 and prayer. On February 14, 2019, the magistrate issued her decision recommending
that we deny the writ. Mr. Dailey has filed objections to the magistrate's decision, and we
consider those objections after an "independent review" pursuant to Civil Rule 53(D)(4)(d).
       {¶ 5} Mr. Dailey suffered a cardiac event while lifting pallets during his
employment as a firefighting instructor at Hocking Technical College. An April 2, 2014
Staff Hearing Officer's order allowed Mr. Dailey's occupational claim for coronary artery
disease and myocardial infarction. Hocking Technical College filed a Request for
Reconsideration and, on August 13, 2014, the commission vacated the April 2, 2014 order
No. 17AP-675                                                                                3

after concluding that it contained clear mistakes of law. The commission's order did allow
the claim for myocardial infarction as an injury claim, but did not rule directly on coronary
artery disease as an allowed or disallowed claim.
       {¶ 6} In due course, Mr. Dailey filed a motion requesting that the commission
"amend his claim, either by direct causation or substantial aggravation of a pre-existing
condition, to include * * * CORONARY ARTERY DISEASE," based on a physician's report
attached to the motion. Stip. Ev. 32 (Dec. 3, 2015 Mot.). A District Hearing Officer denied
the motion. Stip. Ev. 34 (Feb. 24, 2016 Order). Mr. Dailey appealed, and a Staff Hearing
Officer issued an order again denying the motion, noting that Mr. Dailey's myocardial
infarction claim had been "specifically allowed as an injury claim" and finding that
"additionally allowing the claim for the condition Coronary Artery Disease is inconsistent
with a claim recognized for an injury." Stip. Ev. 37 (May 31, 2016 Order). The commission
refused Mr. Dailey's internal appeal of that order and informed him of his right to appeal
under R.C. 4123.512 to a court of common pleas. Stip. Ev. 38 (June 24, 2016 Order).
       {¶ 7} On August 26, 2016, Mr. Dailey filed a complaint in the Athens County Court
of Common Pleas appealing the commission's June 24, 2016 order. He later voluntarily
dismissed the complaint under Civ.R. 41(A), but the commission found nonetheless that it
lacked jurisdiction over his subsequent request for reconsideration of the denial of his claim
for coronary artery disease because jurisdiction over that issue remained with the trial
court. Stip. Ev. 43 (commission order of November 17, 2016). Mr. Dailey then refiled his
common pleas case on January 18, 2017. Stip. Ev. 46 ("Re-Filed Complaint and Jury
Demand"). Some eight months later, he filed his petition seeking a writ of mandamus from
this court, and in June of 2018 he advised the magistrate here that the "Athens County
Court of Common Pleas has stayed proceedings pending the outcome of the present case."
Relator's Brief at 9.
       {¶ 8} Mr. Dailey objects to what he views as "inappropriate" fact-finding by the
Magistrate. He further objects to the magistrate's conclusions: that the commission
properly exercised jurisdiction over and ruled appropriately in vacating the Staff Hearing
Officer's August 13, 2014 order that had allowed the claim of coronary artery disease in
addition to the myocardial infarction injury claim; that the commission was not required
to state expressly in 2014 that it was denying his claim for coronary artery disease; and that
No. 17AP-675                                                                                4

Mr. Dailey was required to appeal the commission's August 13, 2014 order to a court of
common pleas under R.C. 4123.512. Feb. 22, 2019 Relator's Objection to Magistrate's
Decision at 2, 5-10.
       {¶ 9} A party seeking a writ of mandamus "must establish a clear legal right to the
relief requested, a clear legal duty on the part of the commission to provide the relief, and
the lack of an adequate remedy in the ordinary course of the law." State ex rel. Manpower
of Dayton, Inc. v. Indus. Comm. of Ohio, 147 Ohio St.3d 360, 2016-Ohio-7741, ¶ 9 (citation
omitted). While the magistrate's decision focused on the first two requirements, the lack of
an adequate remedy at law "is a threshold question," as it "is a necessary prerequisite for
relief in mandamus." State ex rel. Alhamarshah v. Indus. Comm. of Ohio, 142 Ohio St.3d
524, 2015-Ohio-1357, ¶ 11, citing State ex rel. Consolidation Coal. Co. v. Indus. Comm. of
Ohio, 18 Ohio St.3d 281, 284 (1985) (citation omitted). For the following reasons, we
conclude there is an adequate remedy at law for Mr. Dailey's claim, and we must therefore
deny issuance of the writ.
       {¶ 10} R.C. 4123.512(A) provides a claimant with the right to "appeal an order of the
industrial commission made under division (E) of section 4123.511 of the Revised Code in
any injury or occupational disease case, other than a decision as to the extent of disability
to the court of common pleas of the county" where the injury occurred or the claimant is
employed. The same right of appeal extends to the order of a Staff Hearing Officer that the
commission declines to review. Id. In such an appeal, "[t]he court, or the jury under the
instructions of the court, if a jury is demanded, shall determine the right of the claimant to
participate or to continue to participate in the fund upon the evidence adduced at the
hearing of the action." R.C. 4123.512(D) (emphasis added).
       {¶ 11} In his petition, Mr. Dailey alleges that the commission abused its discretion
by "neglecting to consider the merits of coronary artery disease" in its August 13, 2014 order
as a basis for his claim. Petition and Complaint for Writ of Mandamus at ¶ 24. He
emphasizes his position that the commission must "consider the merits of [his] request to
participate in the State Fund for coronary artery disease." Id. at ¶ 25. But notwithstanding
what he sees as the deficiencies of the 2014 outcome, he does also acknowledge that "the
Staff Hearing Officer, in an order dated 6/1/2016, affirmed the District Hearing Officer's
decision denying the additional allowance of coronary artery disease * * *," and that the
No. 17AP-675                                                                                  5

commission then "refused [his] appeal [to the commission] and the additional allowance of
coronary artery disease remains disallowed." Id. at ¶ 14, 15.
       {¶ 12} It is precisely because the commission has already determined the
(dis)allowance of his coronary artery disease claim that Mr. Dailey has been able to appeal
to the common pleas court. R.C. 4123.512(D) provides Mr. Dailey the opportunity to appeal
and have a judge or a jury determine his right to participate in the fund for coronary artery
disease; that course is available to him, and what's more, he has taken it.
       {¶ 13} Mr. Dailey's petition suggests that his focus is on commission (non)decisions
of 2014, but the commission made determinations after that. He apparently is concerned
that his pending R.C. 4123.512 appeal may be dismissed on grounds of res judicata because
he did not so appeal the August 13, 2014 order allowing his claim for myocardial infarction;
he says his employer has argued in court that he "forfeited his initial .512 appeal for the full
commission order that was wholly silent as to coronary artery disease." Feb. 22, 2019
Relator's Objection at 12. He objects to the magistrate's conclusion that he was required to
appeal the August 13, 2014 order in order to obtain a remedy for his coronary artery disease
claim. Id. at 10.
       {¶ 14} We disagree with the magistrate's conclusion on this issue. Mr. Dailey could
not have brought a claim to participate in the fund for coronary artery disease under R.C.
4123.512 by appealing from an order that did not mention the condition while allowing
another claim. "The claimant in an R.C. 4123.512 appeal may seek to participate in the
Workers' Compensation Fund only for those conditions that were addressed in the
administrative order from which the appeal is taken." Ward v. Kroger Co., 106 Ohio St.3d
35, 2005-Ohio-3560, syllabus. Because an R.C. 4123.512 appeal from the August 13, 2014
order that failed to mention coronary artery disease would have been vulnerable to
dismissal under Ward, we sustain that objection to the magistrate's decision.
       {¶ 15} Ward also demonstrates, though, why Mr. Dailey could appeal the later
explicit denial of his coronary artery disease claim to the Athens County Court of Common
Pleas under R.C. 4123.512. The commission specifically mentioned the condition on the
face of its June 24, 2016 order refusing to hear the appeal of the Staff Hearing Officer's
denial, and Mr. Dailey has cited that order as the basis for his pending R.C. 4123.512 appeal.
No. 17AP-675                                                                               6

       {¶ 16} Mr. Dailey is not without a remedy at law. He asserts to us that "the Athens
County Court of Common Pleas does not have subject matter jurisdiction to hear [his]
appeal for coronary artery disease" under R.C. 4123.512 because the Staff Hearing Officer
refused his coronary artery disease claim on the grounds that it could not have been caused
by the allowed injury of myocardial infarction. Brief of Relator at 25. But a concern that he
somehow may be precluded from presenting an occupational disease claim by the language
of the Staff Hearing Officer's order does not support a writ of mandamus. The "de novo
nature of an R.C. 4123.512 appeal proceeding puts at issue all elements of a claimant's right
to participate in the workers' compensation fund." Bennett v. Admr., Ohio Bur. of Workers'
Comp., 134 Ohio St.3d 329, 2012-Ohio-5639, ¶ 2. An R.C. 4123.512 appeal "necessitates a
new trial, without reference to the administrative claim file or consideration of the results
of the administrative hearings." Robinson v. B.O.C. Group, 81 Ohio St.3d 361, 368 (1998)
(superseded by statute on another issue).
       {¶ 17} In Bennett, the Supreme Court of Ohio noted that in Robinson, it had "fully
endorsed" the following description of an R.C. 4123.512 appeal, as stated by this court in
Marcum v. Barry, 76 Ohio App.3d 536 (10th Dist.1991):
              " ' "Although labeled an appeal and commenced initially by the
              filing of a notice of appeal, the action in the common pleas court
              under R.C. 4123.519 [now 4123.512] seeking a redetermination
              of a decision of the Industrial Commission is not a traditional
              error proceeding[ ] * * *. R.C. 4123.519 [now 4123.512]
              contemplates not only a full and complete de
              novo determination of both facts and law but also contemplates
              that such determination shall be predicated not upon the
              evidence adduced before the Industrial Commission but,
              instead, upon evidence adduced before the common pleas
              court as in any civil action, which may involve a jury trial if
              demanded. The proceedings are de novo both in the sense of
              receipt of evidence and determination. The common pleas
              court, or the jury if it be the factual determiner, makes the
              determination de novo without consideration of, and without
              deference to, the decision of the Industrial Commission. R.C.
              4123.519 [now 4123.512] contemplates a full de novo hearing
              and determination." ' "

Bennett at ¶ 20, quoting Robinson at 368, quoting Marcum. See also, e.g., Clendenin v.
Girl Scouts of W. Ohio, 150 Ohio St.3d 300, 304, 2017-Ohio-2830 (right to participate
No. 17AP-675                                                                             7

"appeals to the common pleas court under R.C. 4123.512 are subject to de novo review")
(citation omitted).
       {¶ 18} Because (at least from what has been presented to us) we see no bar to the
common pleas court's authority to determine whether or not Mr. Dailey has a right to
participate in the fund, we find that he has an adequate legal remedy for the denial of his
coronary artery disease claim. Accordingly, his petition for a writ of mandamus is denied.
See, e.g., Alhamarshah, 142 Ohio St.3d at 526 ("When the relator has a plain and adequate
remedy at law by way of appeal, courts * * * must deny the writ, regardless of whether the
relator used the remedy.") (citations omitted).
       {¶ 19} We sustain Mr. Dailey's objection to the magistrate's determination that he
was required to pursue an R.C. 4123.512 appeal of the commission's August 13, 2014 order,
overrule his other objections to the magistrate's decision as moot, and dismiss his
mandamus petition because R.C. 4123.512 provides him an adequate remedy at law.
                      Objections sustained in part and overruled in part; writ dismissed.

                      BRUNNER and BEATTY BLUNT, JJ., concur.
                            _________________
No. 17AP-675                                                                               8

                                     APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT



The State ex rel. Kevin A. Dailey,            :

              Relator,                        :

v.                                            :                    No. 17AP-675

Industrial Commission of Ohio et al.,         :               (REGULAR CALENDAR)

              Respondents.                    :



                         MAGISTRATE'S DECISION

                              Rendered on February 14, 2019



              Knisley Law Offices, and Kurt A. Knisley, for relator.

              Dave Yost, Attorney General, and Natalie J. Tackett, for
              respondent Industrial Commission of Ohio.

              Dave Yost, Attorney General, and Michael J. Roche, for
              respondent Hocking Technical College.


                                     IN MANDAMUS

       {¶ 20} Relator, Kevin A. Dailey, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to: 1) vacate the August 12, 2014 order wherein the commission exercised
its continuing jurisdiction and allowed his claim for "myocardial infarction," but was silent
as to the allowance of coronary artery disease or ("CAD"); and 2) vacate the October 6, 2016
order wherein the commission found that it lacked jurisdiction to consider relator's motion
No. 17AP-675                                                                                 9

and request for reconsideration concerning the allowance of CAD as a newly allowed
condition while relator's R.C. 4123.512 appeal was pending in the Athens County Court of
Common Pleas for the allowance of that same condition. Relator argues that his claim
against respondent, Hocking Technical College ("HTC") should be allowed for CAD.
Findings of Fact:
       {¶ 21} 1. Relator had worked as a fully certified firefighter since 1968.
       {¶ 22} 2. Over his 44-year career, relator worked for several different employers.
       {¶ 23} 3. From 1982 through 2013, relator was a firefighter for Richland Township
(Rushville Volunteer Fire Department) including the last seven years as the department
chief. Relator was actively and routinely exposed to smoke, chemicals, fumes, and fires in
his positions as both a firefighter and chief.
       {¶ 24} 4. Relator also worked as an instructor at HTC where he taught firefighting
part-time from 1999 through February 24, 2012. Relator lectured students in all areas of
firefighting and his duties included: providing instructional services; performing academic
advising; engaging in continuous professional development; participating in department
activities; participating in academic affairs; maintaining a safe working area and
conditions. At HTC, relator had limited actual exposure to live fires and compliance records
from HTC indicate that he attended five live fire training sessions from 2000 to 2012.
       {¶ 25} 5. It is undisputed that relator has a family history of heart problems and that
he suffered from other health problems including morbid obesity, type 2 diabetes myelitis,
hyper lipidemia, hyper tension, and obstructive sleep apnea.
       {¶ 26} 6. On February 24, 2012, relator was moving pallets for fire training at HTC.
As a result, relator suffered an acute myocardial infarction. At the hospital, relator received
an extensive course of treatment including cardiac catheterization, angioplasty, and a
coronary artery bypass graft.
       {¶ 27} 7.    On May 21, 2013, relator completed a First Report of an Injury,
Occupational Disease or Death ("FROI-1") application listing HTC as his employer and
identifying his position as instructor since September 1999.
       {¶ 28} 8. Relator obtained the August 15, 2013 report of Charles V. Mattingly, M.D.,
who noted that relator was a 61-year old male who worked as a firefighter and was admitted
to the hospital complaining of severe chest pain, shortness of breath, diaphoresis and
No. 17AP-675                                                                              10

nausea. Dr. Mattingly also noted that, prior to the onset of symptoms, relator was "reaching
for and lifting heavy pallets during a 'training fire.' " Thereafter, Dr. Mattingly noted the
results of testing as well as what was revealed during surgery and opined relator suffered
from cardiovascular disease. Specifically, in discussing relator's work and its effect on his
health, Dr. Mattingly stated:
              Mr. Kevin Dailey is a 61-year-old white male who suffered a
              heart attack while working as a firefighter in Lancaster, Ohio.
              He was admitted to Fairfield Medical Center on February 25,
              2012 with severe chest pain, shortness of breath, diaphoresis
              and nausea. Prior to the onset of these symptoms, Mr. Dailey
              was reaching for and lifting heavy pallets during a "training
              fire."

              ***

              Mr. Dailey's occupation of firefighting is known to be
              dangerous. However, what is less appreciated by the general
              public is that the most frequent cause of death among
              firefighters is heart disease. Cardiovascular events, largely
              due to coronary heart disease, account for 45 percent of
              deaths among firefighters on active duty.

              The high incidence of death from cardiovascular causes
              among firefighters raises questions about contributing
              factors. Possible factors include physical exertion, emergency
              responses and dangerous job duties. These factors are not
              unique to firefighting, but are also characteristic of the job
              duties of police officers, military personnel and individuals in
              other occupations.

              Various biologically plausible explanations for the high
              morbidity in firefighters from cardiovascular events have
              been suggested. These include smoke and chemical exposure,
              extreme physical exertion, handling heavy equipment and
              materials, heat stress, shift work, high prevalence of
              cardiovascular risk factors and psychological stressors. In
              addition, the impact of demanding work while wearing heavy
              gear is repeatedly established in the literature.

              When the demands of work in a stressful environment under
              extreme temperatures, space and time constraints, and
              smoke, noise, dust and chemical exposures are considered, it
              is reasonable to conclude that cardiac stress can be significant.
No. 17AP-675                                                                               11

              All of the foregoing factors can contribute to the incidence of
              cardiac-related, on-duty morbidity in firefighters.

              It is my opinion, to a reasonable degree of medical certainty,
              that there is a direct correlation between Mr. Dailey's exertion
              at work and the plaque dissection of his coronary artery,
              which caused Mr. Dailey to suffer a myocardial infarction and
              necessitated open heart surgery. The mechanism of acute
              myocardial infarction is known to be a dissection or tear in the
              endothelial lining of the coronaries with exposure of the
              collagen and sub endothelial lipids causing thrombus or clot
              formation, thereby occluding the artery and leading to an
              acute myocardial infarction.

              Mr. Dailey's myocardial infarction occurred at work while he
              was under extreme physical and/or exertion-type conditions.

       {¶ 29} 9. The Ohio Bureau of Workers' Compensation ("BWC") referred relator to
Ihsan Ul Haque, M.D., for an assessment. In his October 10, 2013 report, Dr. Haque
specifically noted relator suffered a myocardial infarction in February 2012 and that relator
had the following non-work-related health conditions:
              Hypertension, diabetes mellitus type 2 since 1970s, arthritis,
              esophageal reflux, blindness of right eye due to trauma since
              1963, depression, hyperlipidemia, obstructive sleep apnea,
              atrial fibrillation.

       {¶ 30} Ultimately, Dr. Haque agreed that relator had suffered a myocardial
infarction and noted his work as a "firefighter aggravated the risk factors of [d]iabetes,
hypertension, obesity, and hyperlipidemia." Dr. Haque also opined relator was unable to
return to his work as a firefighter.
       {¶ 31} 10. In an order mailed October 28, 2013, the BWC allowed relator's claim for
CAD and acute myocardial infarction of the anterolateral, initial episode. The BWC
specifically relied on Dr. Haque's opinion that relator's occupational exposure contributed
to his conditions.
       {¶ 32} 11. HTC filed an appeal from the BWC order.
       {¶ 33} 12.    An independent medical examination was performed by Marc W.
Whitsett, M.D. In his February 5, 2014 report, Dr. Whitsett provided a detailed history of
relator's work on the day he suffered the myocardial infarction and his subsequent
No. 17AP-675                                                                           12

treatment. Thereafter, Dr. Whitsett noted relator's current complaints. Dr. Whitsett
discussed relator's work history, stating:
              He indicates that he has been a firefighter for 44 years. He had
              previously worked in a small volunteer fire department and
              also has a history of working as a paramedic for the City of
              Columbus and North American Rockwell for a few years. He
              is unable to recall specific dates of employment, despite
              repeated questioning.

              He indicates that he worked for Hocking College beginning
              1999 and his last day worked was in May 2013 when he was
              working part-time. He says that he was working part-time
              from September 2012 through May 2013.

              He states that his job as a firefighter and as an instructor
              required him to carry equipment occasionally over 100-lbs; he
              was exposed to extreme heat and smoke; he did heavy lifting
              and 100% physical activity. He had to wear turn-out gear and
              did fire simulation with very extreme heat exposure. The fume
              exposure occurred in-between fire simulator episodes. He did
              use an SCBA respiratory during the fire simulation. He relates
              that he trained fire-fighter I and fire-fighter IIs which are
              professional fire fighters.

              He indicates that he was frequently exposed to flashes and
              estimates about 12 flashes daily with residual sunburn on his
              skin despite heat protection from the heat exposure.

              He also relates that he worked for the Richland Fire
              Department and the Columbus Fire Department, but he
              cannot provide any detailed employment dates. When queried
              about his job descriptions at these areas, he says "I did it all."

              He denies any prior history of known heart disease prior to
              02/24/12 although he relates that he was told by his doctors
              that he must have had at least 2 heart attacks previously with
              no specified medical care for those episodes.

       {¶ 34} Thereafter, Dr. Whitsett provided his physical findings on examination,
identified and briefly discussed the numerous medical records which he reviewed.
Thereafter, although Dr. Whitsett agreed relator had sustained a myocardial infarction and
that he suffered from coronary artery disease, he opined those conditions were not related
to his work activity as an instructor at HTC. Specifically, Dr. Whitsett stated:
No. 17AP-675                                                                  13

           Based upon my review of the history, medical records and the
           physical examination, Mr. Dailey does have "coronary artery
           disease and acute myocardial infarction, init." The medical
           records document that he has coronary artery disease and that
           he did sustain an acute myocardial infarction.

           ***

           It is my medical opinion that the condition of acute
           myocardial infarction and coronary artery disease are not
           related to Mr. Dailey's work activity at Hocking Technical
           College as an adjunct instructor on 02/24/12.

           In my medical opinion there is insufficient evidence to
           support that his work activity on 2/24/12 resulted in the
           development of coronary artery disease, and I am unable to
           correlate his work activity as an adjunct instructor on 2/24/12
           to the myocardial infarction that he sustained on 2/24/12.
           There is insufficient objective evidence to support that the
           myocardial infarction on 2/24/12 was reasonably a result of
           his work activity. No activity described on 2/24/12 is
           sufficient to have reasonably resulted in the alleged conditions
           of myocardial infarction and coronary artery disease.

           My opinion considers that he has a long-standing history of
           poorly controlled diabetes, hyperlidemia, a history of sleep
           apnea, and a past history of firefighting work outside of this
           employer that can reasonably contribute to the development
           of symptomatic coronary artery disease and myocardial
           infarction. This considers the information provided by Mr.
           Dailey as pertains to his work activities as an adjunct
           instructor do not correlate with the stated work activity
           provided by the employer. This considers the 01/31/14
           statement from Scott Mong, Public Safety Commander of
           Hocking College that states Mr. Dailey's main responsibility
           was the classroom lectures and he was rarely observed to be
           seen on the fire training ground since being hired as a full-
           time fire instructor in 2006.

           There is no information to support a flow through condition.

           The issue of aggravation/substantial aggravation of
           myocardial infarction does not appear reasonably supported
           as the diagnosis of myocardial infarction did not pre-date
           2/24/12.
No. 17AP-675                                                                            14

              The issue of aggravation/substantial aggravation of (pre-
              existing) coronary artery disease does not appear objectively
              supported. The onset of symptoms is not consistent with work
              activity induced symptoms. He was not performing strenuous
              activity at the time of illness onset. There is no documentation
              of a "precipitating event."

              Dr. Mattingly opines in his report dated 8/15/13 that there is
              a direct correlation between Mr. Dailey's exertion at work and
              the plaque dissection of his coronary artery which caused Mr.
              Dailey to suffer a myocardial infarction and necessitated open
              heart surgery. He states that the alleged conditions are work
              related as "His myocardial infarction occurred at work while
              he was under extreme physical and/or exertion type
              conditions." He does not cite any specific work activity that
              precipitated the onset of symptoms.

              I have been unable to corroborate that the work activity was
              indeed under extreme physical and/or exertional type
              conditions. The job description reviewed and information
              provided from the employer does not support that his work
              activity on 2/24/12 was physically exertional / stressful, and
              his work over time as an adjunct instructor did not result in
              significant exposures to inhaled materials/smoke to
              reasonably result in directly causing the coronary artery
              disease or causing a substantial aggravation of his coronary
              artery disease. The work exposure for his job as described is
              insufficient to result in coronary artery disease or the
              myocardial infarction.

              Unfortunately, Mr. Dailey has a significant risk factors [sic]
              for coronary artery disease and a subsequent myocardial
              infarction with a history of controlled Type II diabetes [poorly
              controlled on admission 2/25/12] and hyperlipidemia.

       {¶ 35} Dr. Whitsett also opined that relator's CAD was pre-existing, but had not
been shown to have objectively been aggravated by the events of February 24, 2012, there
was no documented event that resulted in the onset of symptoms, and his work as an
instructor did not result in sufficient exposure to objectively support the diagnosis of an
occupational disease. Specifically, Dr. Whitsett stated:
              The condition of coronary artery disease is pre-existing. It has
              not been objectively shown to have been aggravated by the
              events of 02/24/12. He was not performing strenuous
              physical exertion on 2/24/12 that would reasonably have
No. 17AP-675                                                                           15

              resulted in the onset of symptoms, and there is no evidence to
              support that his work exposure as an adjunct instructor by
              way of occupational disease resulted in an aggravation.

              ***

              In my medical opinion the condition of coronary artery
              disease is pre-existing, but it has not been substantially
              aggravated by the event of 02/24/12.

              The condition of acute myocardial infarction did not result
              directly as a result of his work activity. There is no
              documented event that resulted in the onset of symptoms. His
              work with this employer as an adjunct instructor did not result
              in sufficient exposure to objectively support on the basis as an
              occupational disease. There is no evidence of a substantial
              aggravation.

       {¶ 36} 13. A hearing before a district hearing officer ("DHO") on February 10, 2014
resulted in an order allowing relator's claim for "myocardial infarction and substantial
aggravation of coronary artery disease." The DHO relied on the report of Dr. Mattingly to
find a direct correlation between the physical exertion on February 24, 2012 and the
subsequent myocardial infarction. The DHO also accepted Dr. Mattingly's explanation that
the:
              "[M]echanism of acute myocardial infarction is known to be a
              dissection or tear in the endothelial lining of the coronaries
              with exposure of the collagen and subendothelial lipids causing
              thrombus or clot formation, thereby occluding the artery." He
              opines that the exertional forces carried out by the Injured
              Worker caused plaque dissection in the coronary artery, and
              resulted in the myocardial infarction.

       {¶ 37} 14. HTC appealed and the matter was heard before a staff hearing officer
("SHO") on April 2, 2014. The SHO determined that relator had met his burden of proving
an occupational disease in the course and scope of his employment and allowed relator's
claim both for the myocardial infarction as well as CAD.
       {¶ 38} 15. Specifically, the SHO determined relator had met his burden of proving
that HTC was "at least one of the Employers where the last injurious exposure occurred."
Specifically, the SHO stated:
No. 17AP-675                                                                  16

           The FROI-1 alleges an occupational disease to exposure as
           work as a fire instructor.

           The Injured Worker testified that he worked as a firefighter
           from 1968 through approximately 2005 then fire chief from
           approximately 2005 through the date of the 02/25/2012
           myocardial infarction he further testified that he also worked
           as a fire instructor for the named Employer from 1999
           through the 02/25/2012 date. He testified that as a fire
           instructor he had exposure to heat and gases when instructing
           and also when instructing on flash overs that he did at least
           one quarter per school year, something he estimated he did
           40 to 45 times a quarter starting in 1999. His 01/02/2014
           typed letter also notes his exposure as an instructor over the
           years. The exposure appears to be supported by the 7 (or
           8)/29/2002 Preburn Briefing Session form. The Report of
           Employment by Employer's Agent form signed on
           09/05/2013 is also found to support the Injured Worker's
           testimony. Based on the Injured Worker's testimony that he
           performed the instruction work and had exposures up to the
           02/25/2012 date of the myocardial infarction, it is found the
           named Employer is at least one of the Employers where the
           last injurious exposure occurred and, therefore, a claim is
           allowable against this Employer.

           Dr. Hague [sic] states the exposure to firefighting hazards
           (which have been found below to be the same for his
           firefighter and instructor work) contributed to an earlier
           expression of the disease and concludes there is a causal
           relationship between this medical condition and the
           mechanism of exposure. The allowance of the coronary artery
           disease is based on this report.

           The Injured Worker testified that he had more exposure as an
           instructor than as a firefighter as the number of fires worked
           per year would be less than the flash over instruction per
           quarter. Based on this evidence and the Injured Worker's
           1/2/14 statement, it is found the Injured Worker had the same
           exposures as a fire instructor as he did as a fireman and the
           use the term firefighter instead of instructor by the doctors is
           not found to render there [sic] reports unpersuasive or legally
           insufficient. Further, based on this evidence and the theory of
           dual causation (Norris v. Babcock & Wilcox Co. (1988), 48
           Ohio App.3d 66) it is found the claim is allowable against the
           named employer.
No. 17AP-675                                                                              17

              Dr. Mattingly indicates that as a result of the Injured Worker's
              exertion on the job at the named Employer acting on the
              coronary artery disease the Injured Worker suffered the
              myocardial infarction. Based on this the claim is allowed for
              the myocardial infarction on a flow through basis.

              The activity and exposure noted in the Injured Worker's
              01/02/2014 statement and his testimony above clearly shows
              activity with this employer that distinguishes the job from
              employment in general and creates a risk grater and in a
              different manner from the public at large.

       {¶ 39} 16. HTC filed a request for reconsideration alleging a clear mistake of law
concerning the SHO's misapplication of the law of dual causation and last injurious
exposure as it relates to occupational diseases.
       {¶ 40} 17. In an interlocutory order mailed May 31, 2014, the commission vacated
the April 24, 2014 SHO order and referred the matter for hearing on the issue of the
misapplication of the theories of dual causation and last injurious exposure.
       {¶ 41} 18. Shortly thereafter, relator filed an application for PTD benefits; however,
that application was held in abeyance until the commission heard the request for
reconsideration.
       {¶ 42} 19. At the August 12, 2014 hearing, the commission granted HTC's request
for reconsideration, stating:
              [I]n allowing the claim for an occupational disease contracted
              in the course of the Injured Worker's employment with the
              Employer, the Staff Hearing Officer misapplied the theory of
              dual causation as set forth in Norris v. Babcock & Wilcox Co.,
              48 Ohio App.3d 66, 548 N.E.2d 304 (9th Dist. 1988), and
              misapplied the doctrine of last injurious exposure as set forth
              in Hall China v. Indus. Comm., 120 Ohio App.374, 202 N.E.2d
              628 (10th Dist. 1962). Therefore, the Commission exercises
              continuing jurisdiction pursuant to R.C. 4123.52 and State ex
              rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 692 N.E.2d
              188 (1998), State ex rel. Foster v. Indus. Comm., 85 Ohio St.3d
              320, 707 N.E.2d 1122 (1999), and State ex rel. Gobich v. Indus.
              Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, 817 N.E.2d
              398, in order to correct these errors.

       {¶ 43} The commission vacated the SHO order and granted the claim exclusively for
the injury of myocardial infarction, stating:
No. 17AP-675                                                                           18

             The Commission finds the Injured Worker sustained an injury
             on 02/24/2012, in the course of and arising out of his
             employment as a firefighting instructor when, after helping to
             lift and load approximately 50 wooden pallets onto a truck for
             transport to the Employer's firefighting training facility, the
             Injured Worker began to experience an onset of tiredness and
             weakness that persisted, with chest pain and shortness of
             breath developing later that same day.

             The Commission ALLOWS the claim for MYOCARDIAL
             INFARCTION, with a date of injury of 02/24/2012. In
             allowing the claim for the specified condition, the
             Commission relies on the Injured Worker's handwritten
             statement filed 08/26/2013, his testimony at hearing
             regarding his work activity on 02/24/2014 [sic], and the
             symptoms he experienced on that day, which are consistent
             with his statement, the records from The Ohio State
             University Medical Center relating to treatment the Injured
             Worker received from 02/24/2012 through 03/03/2012, and
             the 08/15/2013 report from Charles Mattingly, M.D., an
             internal medicine specialist whose practice involves the
             treatment of cardiovascular diseases. The Commission finds
             the cited evidence persuasively demonstrates the Injured
             Worker's work-related physical exertion on 02/24/2012,
             caused him to suffer a myocardial infarction on that day.

             The Commission finds Dr. Mattingly stated in his 08/15/2013
             report in part as follows:

             It is my opinion, to a reasonable degree of medical certainty,
             that there is a direct correlation between Mr. Dailey's exertion
             at work and the plaque dissection of his coronary artery,
             which caused Mr. Dailey to suffer a myocardial infarction and
             necessitated open heart surgery. The mechanism of acute
             myocardial infarction is known to be a dissection or tear in the
             endothelial lining of the coronaries with exposure of the
             collagen and sub endothelial lipids causing thrombus or clot
             formation, thereby occluding the artery and leading to an
             acute myocardial infarction.

             Mr. Dailey's myocardial infarction occurred at work while he
             was under extreme physical and/or exertion-type conditions.

(Emphasis sic.)
      {¶ 44} 20. Relator did not file an appeal to the common pleas court pursuant to R.C.
4123.512 after the commission exercised its continuing jurisdiction and allowed his claim
No. 17AP-675                                                                            19

exclusively for myocardial infarction. Instead, on December 3, 2015, relator filed a C-86
motion asking that his claim be additionally allowed for CAD.
       {¶ 45} 21. The matter was heard before a DHO on February 24, 2016 and resulted
in an order denying the request finding the evidence did not support the conclusion that
relator had developed CAD as a result of his employment as an instructor. Specifically, the
DHO order provides:
              It is the order of the District Hearing Officer that the C-86
              Motion filed by Injured Worker on 12/03/2015 is denied.

              After further review and consideration, it is the order of the
              District Hearing Officer that the Injured Worker's request for
              the additional allowance of the condition, "Coronary Artery
              Disease," is denied. The District Hearing Officer finds that the
              evidence in file and presented at this hearing does not support
              the addition of this condition in the present claim.

              The District Hearing Officer finds that the Injured Worker's
              work history as a fire fighter dates back to 1968. However, the
              District Hearing Officer finds that the Injured Worker only
              began working as a Fire Science Instructor for the employer
              of record in 1999.

              The District Hearing Officer further finds that the Injured
              Worker was not employed by the employer of record as a
              firefighter, but rather, as an instructor. While it is well taken
              that this position entails some drills in actual fire scenarios,
              the District Hearing Officer is not persuaded that the position
              with the employer of record requires more physical exertion
              or actual exposure to fire scenarios than his position as a
              firefighter with the town of Rushville.

              Evidence was reviewed and considered.

       {¶ 46} 22. Relator appealed and the matter was heard before an SHO on May 31,
2016. The SHO vacated the prior DHO order yet still denied relator's request to allow his
claim for CAD. Specifically, the SHO initially determined this was an injury claim and not
an occupational disease claim:
              The Staff Hearing Officer finds the Injured Worker has not
              met his burden of proving the requested additional condition
              at issue is causally related to the 02/24/2012 industrial injury.
              The Staff Hearing Officer finds based upon the Industrial
              Commission order issued 09/26/2014, this claim was
No. 17AP-675                                                                               20

               specifically allowed as an injury claim with a date of injury
               of 02/24/2012. On 02/24/2012, the Injured Worker was
               working while he was under extreme physical and/or
               exertion-type conditions and suffered a myocardial infarction.
               The Staff Hearing Officer finds additionally allowing the claim
               for the condition Coronary Artery Disease is inconsistent with
               a claim recognized for an injury and there is no persuasive
               medical evidence to support a finding the Injured Worker's
               Coronary Artery Disease was caused as a result of the
               02/24/2012 industrial injury.

(Emphasis sic.)
        {¶ 47} Additionally, the SHO determined the statutory presumption set forth in R.C.
4123.68(W) was not applicable because relator was not employed as a firefighter for HTC.
Specifically, the SHO order provides:
               The Staff Hearing Officer finds the Statuary presumption set
               forth in R.C. 4123.68(W) is not applicable in this case. The
               Injured Worker was not employed as a firefighter nor did he
               volunteer as a firefighter for Hocking Technical College at the
               time of his 02/24/2012 industrial injury. The evidence
               presented at hearing and contained in the record indicates the
               Injured Worker was employed as an instructor for Hocking
               Technical College. In addition, the Staff Hearing Officer finds
               the medical reports relied upon by the Injured Worker in
               support of the C-86 motion, Ihsan Ul Haque, M.D.
               (10/10/2013), Steven Yakubov, M.D. (undated), Thomas
               Welch, M.D. (10/07/2016), and Charles Mattingly, M.D.
               (10/15/2013), are not found persuasive since these doctors
               either presumed or found the Injured Worker was working as
               a firefighter at the time of his 02/24/2012 industrial injury.

        {¶ 48} 23. Relator's appeal was refused by order of the commission mailed June 28,
2016.
        {¶ 49} 24. Despite the fact that relator's request for reconsideration was denied, the
commission issued an interlocutory order finding it was arguable the SHO erred by finding
the additional allowance was inconsistent with the claim recognized for an injury and erred
in finding the medical evidence on file was unpersuasive because the physicians all assumed
relator was working as a firefighter on the day of injury and because the SHO failed to
adjudicate the additional allowance on the theory of substantial aggravation.            The
commission directed the claim be set for hearing on a sua sponte basis to determine
No. 17AP-675                                                                             21

whether there was sufficient grounds for the commission to invoke its conditioning
jurisdiction.
       {¶ 50} 25. Thereafter, the commission determined it did not have jurisdiction to
consider the motion for reconsideration because relator had, by that time, filed an appeal
to the common pleas court pursuant to R.C. 4123.512. Specifically, the commission's order
provides:
                11/16/2016 – By interlocutory order issued 10/27/2016, the
                Industrial Commission requested the parties file briefs on the
                issue of the Commission's jurisdiction over the Injured
                Worker's C-86 Motion, request for additional allowance, filed
                12/03/2015. The briefs were timely filed and after further
                review and discussion, the Commission finds the Employer's
                position well taken. The Commission does not have
                jurisdiction to address the Injured Worker's Motion.

                The Injured Worker filed an Appeal with the Court of
                Common Pleas, Athens County on 08/26/2016. Despite the
                Injured Worker's voluntary dismissal pursuant to Civ.R. 41(A)
                on 09/08/2016, the Commission finds jurisdiction remains
                pending with the Court. State ex rel. Rodriquez v. Indus.
                Comm., 67 Ohio St.3d 210, 616 N.E.2d 929 (1993), Kaiser v.
                Ameritemps, Inc., 84 Ohio St.3d 411, 704 N.E.2d 1212 (1999),
                and Ciomek v. LTV Steel Co., 8th Dist. Cuyahoga No. 74646,
                2000 WL 86840 (Jan. 27, 2000).

                The refusal order, issued 06/28/2016, is hereby reinstated.

                All evidence was reviewed and considered prior to rendering
                this decision.

       {¶ 51} 26. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 52} Relator challenges the commission's August 12, 2014 order wherein the
commission exercised its continuing jurisdiction, vacated the April 2, 2014 SHO order
which had allowed his claim for CAD and ultimately allowing the claim only for myocardial
infarction. Relator claims there was no mistake of law, the overwhelming medical evidence
established that he developed CAD as a result of his exposure while an instructor at HTC,
and the commission further abused its discretion by failing to expressly deny his right to
participate for the condition of CAD.
No. 17AP-675                                                                               22

       {¶ 53} Relator also challenges the commission's October 6, 2016 order in which the
commission determined that it lacked jurisdiction to consider a request for reconsideration
of the disallowance of the CAD condition while relator had an appeal pending in the Athens
County Court of Common Pleas for the allowance of that same condition.
       {¶ 54} For the reasons that follow, the magistrate finds that the commission has not
abused its discretion in this case, and this court should deny relator's request for a writ of
mandamus.
       {¶ 55} 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).
       {¶ 56} 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).
       {¶ 57} Let's begin with what we do know.         Relator had been a fully certified
firefighter since 1968. From 1982 through 2013, relator worked as a firefighter for Richland
Township. During the last seven years of his employment with Richland Township, relator
served as the department chief. It is undisputed that he was actively and routinely exposed
to smoke, chemicals, fumes, and fires both as a firefighter and as a department chief.
       {¶ 58} Relator also worked as an instructor at HTC where he taught firefighting from
1999 through February 24, 2012. According to the job description for an instructor at HTC,
No. 17AP-675                                                                                23

relator's responsibilities were largely academic; however, clearly, part of instructing cadets
to become firefighters involves teaching them how to deal with fire situations.
       {¶ 59} On February 24, 2012, relator was moving pallets to prepare for a training
fire at HTC. Because he was not feeling well, relator left and was not present for the training
fire itself. Relator presented at the hospital where it was determined that he suffered an
acute myocardial infarction. During the time he was treated at the hospital, doctors
determined that relator suffered from CAD and that condition played a role in causing the
myocardial infarction.
       {¶ 60} The above facts are not in dispute and represent the only facts that are
undisputed.
       {¶ 61} When relator filed his FROI-1, he listed only HTC as his employer. Relator
never asserted there was a causal connection between his employment as a firefighter and
the occupational disease of CAD or the myocardial infarction which he sustained
February 24, 2012.
       {¶ 62} In the August 15, 2013 medical report relator submitted in support of the
allowance of his claim, Dr. Mattingly specifically indicated that relator "suffered a heart
attack while working as a firefighter in Lancaster, Ohio." At the same time, Dr. Mattingly
noted that relator was "reaching for and lifting heavy pallets during a 'training fire.' "
Thereafter, Dr. Mattingly discussed the occupation of firefighter and its known connection
to the development of cardiovascular disease. Specifically, Dr. Mattingly noted that
relator's "occupation of firefighting is known to be dangerous [and] the most frequent cause
of death among firefighters is heart disease." In closing, Dr. Mattingly stated:
              It is my opinion, to a reasonable degree of medical certainty,
              that there is a direct correlation between Mr. Dailey's exertion
              at work and the plaque dissection of his coronary artery,
              which caused Mr. Dailey to suffer a myocardial infarction and
              necessitated open heart surgery. The mechanism of acute
              myocardial infarction is known to be a dissection or tear in the
              endothelial lining of the coronaries with exposure of the
              collagen and sub endothelial lipids causing thrombus or clot
              formation, thereby occluding the artery and leading to an
              acute myocardial infarction.

              Mr. Dailey's myocardial infarction occurred at work while he
              was under extreme physical and/or exertion-type conditions.
No. 17AP-675                                                                                24

           {¶ 63} Dr. Mattingly opined that employment as a firefighter is very likely to cause
a person to develop cardiovascular disease and cardiovascular disease can lead to the
occurrence of a myocardial infarction. Dr. Mattingly never rendered an opinion on whether
relator's employment as an instructor at HTC caused CAD.
           {¶ 64} Dr. Haque's October 10, 2013 report is similar. He too opined the alleged
conditions of myocardial infarction and CAD existed and specifically stated that relator's
"work as a firefighter exposed [him] to toxic fumes and chemicals. [He] did not have the
explicit disease on joining the department and developed explicit disease after the
exposure." As with Dr. Mattingly's report, Dr. Haque never discussed whether or not
relator's employment as an instructor with HTC caused CAD which ultimately led to the
myocardial infarction.
                                                2014 Orders
           {¶ 65} The DHO allowed relator's claim for myocardial infarction and substantial
aggravation of pre-existing CAD. Relying on Dr. Mattingly's report, the DHO recognized
that relator's activities on February 24, 2012 when he was setting up the pallets for the
training fire caused a myocardial infarction. The DHO also appreciated that Dr. Mattingly
opined that relator had developed CAD over the course of his lifetime (which included his
overall family health as well as his work as a firefighter), that his work as an instructor
substantially aggravated his condition and that, but for CAD, relator may or may not have
suffered the myocardial infarction that day.1 The DHO's conclusion is consistent with the
medical evidence in the record.
           {¶ 66} On appeal, the SHO modified the allowance. In the April 2, 2014 SHO order,
the SHO allowed relator's claim for both myocardial infarction and CAD. Here, the SHO
made the following finding: "[I]t is found the named Employer [HTC] is at least one of the
Employers where the last injurious exposure occurred and, therefore, a claim is allowable
against this Employer." The SHO also found that relator's argument that he had as much
if not more exposure as an instructor than he did as a firefighter supported a theory of dual
causation citing Norris v. Babcock & Wilcox Co., 48 Ohio App.3d 66 (9th Dist.1988) and,
as such, the claim was allowable against the named employer, HTC. Ultimately, the



1   The magistrate believes this is the most accurate and correct order in the record.
No. 17AP-675                                                                                 25

commission exercised continuing jurisdiction because of these two conclusions in the
SHO's order.
       {¶ 67} 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 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.

Id. at 541.
       {¶ 68} Here, the commission exercised its continuing jurisdiction based on the
SHO's determination that, because relator's employment with HTC exposed him to
substances which are known to cause CAD, HTC could be held solely responsible, from a
workers' compensation standpoint, for the fact that relator developed CAD. The SHO relied
No. 17AP-675                                                                              26

on the law of last injurious exposure and dual causation to reach this result. The magistrate
finds the commission did not abuse its discretion when it determined this was a clear
mistake of law in the SHO's order.
       {¶ 69} In Norris, which was cited by the SHO, it was undisputed that during his
employment with Babcock & Wilcox, Robert Norris was exposed to airborne asbestos.
When Norris learned he had cancer of the larynx, he gave up cigarette smoking. Norris'
cancer spread and ultimately he died.
       {¶ 70} Norris' wife applied for survivorship benefits under the workers'
compensation statutes. The commission denied her benefits; however, her appeal to the
Summit County Court of Common Pleas resulted in a jury verdict finding that she was
entitled to those benefits.
       {¶ 71} On appeal, the court was called upon to determine whether the evidence
supported a finding that cancer of the larynx was an unspecified occupational disease
pursuant to former R.C. 4123.68(BB). Applying the test from State ex rel. Ohio Bell Tel.
Co. v. Krise, 42 Ohio St.2d 247 (1975), the court stated:
              "An occupational disease is compensable under R.C.
              4123.68(BB) where the following criteria exist:

              (1) The disease is contracted in the course of employment; (2)
              the disease is peculiar to the claimant's employment by its
              causes and the characteristics of its manifestation or the
              conditions of the employment result in a hazard which
              distinguishes the employment in character from employment
              generally; and (3) the employment creates a risk of
              contracting the disease in a greater degree and in a different
              manner than in the public generally."

              The facts adduced at trial in the instant case were
              uncontroverted. B & W's defense was that it was Robert's
              smoking which proximately caused the cancer and not the
              working environment. Thus, the outcome of the trial hinged
              on whether the jury found Dorothy's expert or B & W's expert
              more credible. It was Dorothy's expert's opinion that based on
              a reasonable degree of medical probability:

              "A. I believe that the exposure, extensive exposure to asbestos
              as described by you was clearly a contributing cause to the
              development of the cancer of the larynx that he ultimately
              died from."
No. 17AP-675                                                                               27


                The problem of dual causation has been especially
                troublesome in occupational disease cases where the
                occupational disease is respiratory in nature and the decedent
                was a smoker. See 1B Larson, The Law of Workmen's
                Compensation (1987) 7-465 to 7-489, Section 41.64.
                Nonetheless, we find that the basic principles of proximate
                causation are applicable to dual causation of occupational
                diseases. McAllister v. Workmen's Compensation Appeals
                Bd. (1968), 69 Cal. 2d 408, 71 Cal. Rptr. 697, 445 P. 2d 313. In
                Ohio, when two factors combine to produce damage or illness,
                each is a proximate cause. Carbe v. Halloran (1948), 150 Ohio
                St. 476, 38 O.O. 325, 83 N.E. 2d 217; 1 Ohio Jury Instructions
                (1988), Section 11.10, at 183.

                Upon review of the record, we find the evidence is sufficient
                to support a finding that Robert's exposure to asbestos was a
                proximate cause of his cancer. C.E. Morris Co. v. Foley
                Construction Co. (1978), 54 Ohio St. 2d 279, 8 O.O. 3d 261,
                376 N.E. 2d 578. The jury obviously placed more weight on
                Dorothy's expert's testimony than on B & W's expert
                testimony. Having crossed the proximate cause barrier, we
                find the facts of this case fit squarely onto the Krise test for
                finding an unspecified occupational disease.

Id. at 67-68.
       {¶ 72} In the present case, the SHO determined that relator developed CAD as a
result of his exposure to various elements both as a firefighter and as an instructor for HTC.
Part of the problem with this finding is that, the theory of dual causation in this respect
does not apply where a finding can be made that two different employers exposed an
injured worker to something which ultimately caused an occupational disease. The theory
of dual causation is used when the injured worker's personal life exposes him to factors
which could cause a certain disease and, at the same time, the injured worker's work
environment exposes him to certain factors which also cause the disease. This was a
misapplication of the law which the magistrate finds was confirmed when the SHO then
discussed last injurious exposure.
       {¶ 73} In cases involving last injurious exposure, an injured worker has worked for
multiple employers during their employment history, and each of those employers has
exposed the injured worker to something, like asbestos, which contributed to the
contraction of an occupational disease, such as asbestosis. Because it is impossible to
No. 17AP-675                                                                              28

apportion responsibility to various employers in those circumstances, the law of last
injurious exposure developed. The principle of last injurious exposure is applied in only
one context: before allowance of a claim, in a situation involving several potentially liable
employers. It involves a claimant who has recently experienced the onset of a long latency
occupational disease such as asbestosis or black lung and always involves a claimant who
has been exposed to the injurious substance while working for each of several employers.
When the worker files a workers' compensation claim, the following question arises: When
multiple employers have subjected the claimant to the hazard, against which employer
should the workers' compensation claim be allowed? See State ex rel. Roger Bacon High
School v. Indus. Comm., 10th Dist. 10AP-277, 2011-Ohio-1383.
       {¶ 74} In the present case, relator was still working both as a firefighter and as an
instructor. Although relator stated he was exposed to greater risk as an instructor, the
actual training records from HTC indicate he was only present at five training fires during
the course of his employment with HTC (which is the conclusion of all the doctors). Relator
never asserted that he acquired CAD as a result of employment as a firefighter─only as an
instructor for HTC. Inasmuch as he was still working for both employers and, arguably,
both employers exposed him to hazards which ultimately led to him developing CAD, the
legal analysis upon which the SHO found HTC liable is faulty. As such, the magistrate finds
the commission did not abuse its discretion when it exercised its continuing jurisdiction
and vacated the April 2, 2014 SHO order.
       {¶ 75} Finding that the commission did not abuse its discretion when it exercised its
continuing jurisdiction, the court must now consider relator's argument that the
commission abused its discretion by finding that his claim was allowed for myocardial
infarction without noting whether or not CAD was denied. For the reasons that follow, the
magistrate disagrees.
       {¶ 76} When the commission exercises its continuing jurisdiction, the commission
considers the initial issue de novo. Relator's FROI-1 asserted he suffered a myocardial
infarction and substantial aggravation of CAD as a result of his employment with HTC. The
commission relied on medical reports which indicated that, on February 24, 2012, while
moving pallets, relator suffered a myocardial infarction. The commission allowed relator's
claim solely for that condition. The commission was not required to specifically state that
No. 17AP-675                                                                              29

it was denying relator's request that his claim also be allowed for either CAD or substantial
aggravation of CAD.     Relator has asked that his claim be allowed for two different
conditions, the commission allowed the claim for one condition and not the other. At this
time, relator could have filed an appeal to the common pleas court pursuant to R.C.
4123.512.
                              2016 Commission Orders
       {¶ 77} Having found the commission did not abuse its discretion when it exercised
its continuing jurisdiction over the SHO order which allowed relator's claim for myocardial
infarction and CAD, the magistrate now considers relator's assertion that the commission
abused its discretion when it found that it did not have jurisdiction, at a later date, to
consider relator's argument that his claim should be additionally allowed for CAD
inasmuch as relator had filed an appeal in the common pleas court. It is this magistrate's
decision that the commission did not abuse its discretion in this regard.
       {¶ 78} Relator's motion requesting clarification of the allowances to amend his claim
to include CAD was heard before a DHO on February 24, 2016. After noting that relator
was not employed as a firefighter for HTC, but rather as a fire instructor, the DHO found
that while the instructor position entails some drills in actual fire scenarios, it does not
require more physical exertion or actual exposure to fire scenarios than relator's position
as a firefighter.
       {¶ 79} On appeal, the SHO noted that this had initially been allowed as an injury
claim and it would be inconsistent to now allow it as an occupational disease claim.
Further, the SHO determined that R.C. 4123.68(W) was not applicable because relator was
not employed as a firefighter for HTC. Relator's appeal from the SHO order was refused
and he filed a request for reconsideration. Relator also timely filed an appeal under R.C.
4123.512 to the Athens County Court of Common Pleas appealing the commission's denial
of his right to additionally participate in the workers' compensation fund for CAD.
       {¶ 80} The commission issued an interlocutory order denying the request for
reconsideration yet, at the same time, sua sponte referred the matter for hearing noting
there were possible mistakes of law in the SHO's order.
       {¶ 81} HTC argued the commission did not have jurisdiction because of the pending
R.C. 4123.512 appeal. Relator immediately dismissed his appeal in the common pleas
No. 17AP-675                                                                                30

court. When the commission heard the matter, it held that the trial court retained
jurisdiction by the timely filing of the notice of appeal. The fact that the complaint had been
dismissed was immaterial given that once an appeal pursuant to R.C. 4123.512 has been
timely filed, it can be voluntarily dismissed and refiled within a one year period of time. On
this basis, the commission declined to reconsider the SHO order.
       {¶ 82} Because the magistrate finds the commission did not abuse its discretion
when it allowed relator's claim solely for the condition of myocardial infarction, the
question of whether or not his workers' compensation claim should also be allowed for CAD
is not before this court. Only if this court were to find the commission abused its discretion
by exercising its continuing jurisdiction in 2014 would the question appropriately be before
this court.
       {¶ 83} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated the commission abused its discretion either in 2014 or in 2016, and 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).
