[Cite as State ex rel. Rohr v. Indus. Comm., 126 Ohio St.3d 259, 2010-Ohio-3756.]




      THE STATE EX REL. ROHR, APPELLANT, v. INDUSTRIAL COMMISSION
                             OF OHIO ET AL., APPELLEES.

                     [Cite as State ex rel. Rohr v. Indus. Comm.,
                        126 Ohio St.3d 259, 2010-Ohio-3756.]
Workers’ compensation — Permanent total disability compensation — Industrial
        Commission’s exercise of continuing jurisdiction — New and changed
        circumstances.
     (No. 2010-0083 — Submitted July 6, 2010 — Decided August 18, 2010.)
      APPEAL from the Court of Appeals for Franklin County, No. 09AP-94,
                                     2009-Ohio-6416.
                                  __________________
        Per Curiam.
        {¶ 1} Appellant, Jeffrey T. Rohr, was awarded permanent total disability
compensation.       After three years, appellee Industrial Commission of Ohio
exercised its continuing jurisdiction and ordered Rohr to undergo a medical
examination to determine whether he was still permanently and totally disabled.
Rohr challenges that decision.
        {¶ 2} Rohr’s 2004 permanent total disability award was based on his
allowed psychological conditions — “major depressive episode, recurrent,
moderate severity; dysthymic disorder.”              In finding that these conditions
prevented sustained remunerative employment, a staff hearing officer relied on
the reports of Drs. Steven B. Van Auken and Gregg A. Martin.
        {¶ 3} Both psychologists described Rohr as expressionless with
noticeably slowed speech and a flat affect. Van Auken noted that Rohr’s “tonal
quality suggested a mechanical, robotic mode of speech.” He also characterized
Rohr as “resigned [and] dispirited. His [Rohr’s] short-term memory appeared
                              SUPREME COURT OF OHIO




unreliable; he was able to recall none of three objects after five minutes. His
long-term memory appeared questionable * * *. His concentration appeared quite
negatively impacted * * *.”
       {¶ 4} Dr. Martin made similar statements and added that Rohr’s speech
was “notable for mild to moderate dysfluencies with considerable word finding
hesitations and very slow output.”
       {¶ 5} In 2007, Rohr’s employer, appellee Gerstenslager Company, hired
an investigator to initiate surveillance of Rohr. When Gerstenslager reviewed the
surveillance evidence, it questioned whether Rohr was still permanently and
totally disabled and asked him to submit to further medical examination. Rohr
refused.
       {¶ 6} Gerstenslager then asked the commission to exercise its continuing
jurisdiction and order Rohr to attend an independent medical exam. A staff
hearing officer reviewed the surveillance evidence and contrasted what he saw
with the observations made by Dr. Van Auken in 2004:
       {¶ 7} “The employer presented a CD of an investigation performed by a
Mr. Walters who was at hearing and as part of said investigation, Mr. Walters
engaged in a verbal conversation with the claimant in which the claimant was
heard by this Hearing Officer and showed that the claimant’s speech was clear,
cogent and goal oriented.
       {¶ 8} “The Hearing Officer further finds that in said conversation the
claimant experienced remarkably well short-term and remarkably well long-term
memory in speaking to the investigator concerning his neighbors, the length of
time that the neighbors have owned certain property, what property was owned
and by whom. The Hearing Officer further finds that the speech was normal in its
flow and in no way ‘noticeably slowed and paced’ as indicated by Dr. Van Auken
in the report of 09/14/2004, and that the claimant showed a mode of speech that
was hardly mechanical or robotic.




                                        2
                                January Term, 2010




       {¶ 9} “ * * *
       {¶ 10} “The Hearing Officer finds that * * * [these] activities along with
the huge discrepancy between the conversation that was heard by this Hearing
Officer and the examination by Dr. Van Auken in September, 2004 necessitates
the granting of the employer’s motion to have the claimant re-examined by a
doctor examining on the allowed psychological conditions to determine whether
the claimant is still permanently and totally disabled.”
       {¶ 11} Reconsideration was denied.
       {¶ 12} Rohr filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in ordering
him to attend the psychological examination. The court of appeals found that the
commission’s decision was supported by evidence and denied the writ.
       {¶ 13} Rohr now appeals to this court as of right.
       {¶ 14} The commission can invoke its continuing jurisdiction under R.C.
4123.52 when one of the following exists: (1) new and changed circumstances,
(2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5) error by an
inferior tribunal. State ex rel. B & C Machine Co. v. Indus. Comm. (1992), 65
Ohio St.3d 538, 541-542, 605 N.E.2d 372. Gerstenslager presented evidence that
suggested that Rohr’s previously disabling psychological conditions had
significantly improved. The commission found that this evidence demonstrated
new and changed circumstances sufficient to exercise continuing jurisdiction and
ordered Rohr to appear for a medical examination.
       {¶ 15} The commission is exclusively responsible for evaluating
evidentiary weight and credibility, State ex rel. Teece v. Indus. Comm. (1981), 68
Ohio St.2d 165, 22 O.O.3d 400, 429 N.E.2d 433, and as long as there is evidence
supporting its order, the order must be upheld, State ex rel. Burley v. Coil
Packing, Inc. (1987), 31 Ohio St.3d 18, 21, 31 OBR 70, 508 N.E.2d 936. Rohr
concedes that the surveillance packet constituted evidence of new and changed



                                          3
                            SUPREME COURT OF OHIO




circumstances.   He argues, however, that the surveillance evidence is not as
significant as it was in State ex rel. Spohn v. Indus. Comm., 115 Ohio St.3d 329,
2007-Ohio-5027, 875 N.E.2d 52, and thus does not warrant termination of his
permanent total disability compensation. This argument, however, is premature.
The issue in this case is simply whether the commission properly exercised its
continuing jurisdiction to order Rohr to be medically examined. Whether the
present claimant remains permanently and totally disabled — which was the issue
in Spohn — will be a determination that the commission will make after Rohr is
medically examined.
       {¶ 16} The judgment of the court of appeals is affirmed.
                                                               Judgment affirmed.
       BROWN,     C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                __________________
       M. Blake Stone, L.P.A., Inc., and M. Blake Stone, for appellant.
       Critchfield, Critchfield & Johnston, Ltd., and Susan E. Baker, for appellee
Gerstenslager Company.
       Richard Cordray, Attorney General, and Colleen C. Erdman, Assistant
Attorney General, for appellee Industrial Commission.
                           ______________________




                                            4
