[Cite as State ex rel. Cottrell v. Indus. Comm., 2019-Ohio-2832.]


                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


The State ex rel. Michael C. Cottrell,                   :
(Through Dependent, Brooks J. Cottrell),
                                                         :
                 Relator,
                                                         :
v.                                                                     No. 18AP-66
                                                         :
Industrial Commission of Ohio et al.,                               (REGULAR CALENDAR)
                                                         :
                 Respondents.
                                                         :



                                            D E C I S I O N

                                        Rendered on July 11, 2019


                 On brief: Steven G. Thomakos, for relator. Argued:
                 Steven G. Thomakos.

                 On brief: Dave Yost, Attorney General, and Sherry M.
                 Phillips, for respondent Industrial Commission of Ohio.
                 Argued: Sherry M. Phillips.

                 On brief: Dave Yost, Attorney General, and Patsy A.
                 Thomas, for respondent Ohio Bureau of Workers'
                 Compensation. Argued: Natalie J. Tackett.

                                   IN MANDAMUS
                       ON RESPONDENTS' MOTIONS TO DISMISS AND
                       ON OBJECTIONS TO MAGISTRATE'S DECISION

BEATTY BLUNT, J.
        {¶ 1} Relator, Brooks J. Cottrell, filed this original action requesting a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to find
that a C-86 motion, filed May 4, 2015, was timely filed. Relator further requests that we
                                                                                         2
No. 18AP-66


issue a writ ordering the commission to process the motion and award him "total loss of
use" compensation.
I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} Because this matter is before the court on two motions to dismiss, we
consider the following facts, as plead in the complaint, as true.
       {¶ 3} On May 12, 2014, relator's father ("decedent") was involved in a workplace
accident when he was welding on top of an oil field storage tank and the tank exploded. He
died shortly thereafter. A physician opined that decedent suffered a pre-mortal injury that
resulted in the total loss of use of both of his legs.
       {¶ 4} Relator was decedent's only biological child. He was three years old at the
time of decedent's death. Decedent and relator's mother were not married, and relator has
always been in his mother's custody.
       {¶ 5} On July 3, 2014, the Ohio Bureau of Workers' Compensation ("Ohio BWC")
declared relator a dependent of decedent and allowed his claim for death benefits.
       {¶ 6} On April 17, 2015, the Ohio BWC declared decedent's mother, relator's
grandmother ("grandmother"), a prospective dependent.
       {¶ 7} On May 4, 2015, grandmother filed a C-86 motion requesting that the Ohio
BWC "allow the claim for loss of use of bilateral lower extremities and pay loss of use
award." (Compl. at ¶ 9.)
       {¶ 8} On June 30, 2015, the district hearing officer ("DHO") determined that
grandmother was not a dependent pursuant to R.C. 4123.59.
       {¶ 9} The staff hearing officer ("SHO"), by decision dated August 12, 2015, agreed
that relator's grandmother failed to prove that she was decedent's dependent.
       {¶ 10} On January 9, 2016, the commission dismissed grandmother's May 4, 2015
motion.
       {¶ 11} On May 2, 2016, relator, through counsel, filed his own C-86 motion and
requested that the commission exercise its continuing jurisdiction and reconsider its
dismissal of grandmother's May 4, 2015 motion. The commission dismissed this motion,
finding that it lacked jurisdiction to re-address grandmother's original motion.
       {¶ 12} On May 12, 2017, relator filed a motion requesting that the commission
exercise its continuing jurisdiction and reconsider grandmother's May 4, 2015 C-86 motion
                                                                                             3
No. 18AP-66


as it applied to relator. Relator argued that he should be allowed to be substituted in for
grandmother, who filed a timely motion when she was considered a prospective dependent.
         {¶ 13} On October 2, 2017, the SHO denied relator's request for reconsideration.
The SHO determined that there is no legal authority to allow relator to substitute in for
grandmother after her motion was dismissed. The SHO also found that relator failed to
present persuasive evidence to support his request that the commission exercise its
continuing jurisdiction.
         {¶ 14} Relator filed the instant mandamus action. In addition to requesting that we
issue a writ, as described above, relator avers in his complaint that "new and changed
circumstances" allow the commission to exercise its continuing jurisdiction, namely
circumstances surrounding grandmother's status as a prospective dependent. (Compl. at
¶ 16.)
         {¶ 15} Both the commission and the Ohio BWC filed motions to dismiss, pursuant
to Civ.R. 12(B)(6), arguing that relator cannot show (1) a clear legal right to the loss of use
award, (2) a clear legal duty for the BWC to grant such an award, and (3) a lack of adequate
remedy in the ordinary course of law.
         {¶ 16} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who considered the motions to dismiss. The
magistrate issued a decision, appended hereto, recommending that the complaint be
dismissed because relator did not file a timely C-86 motion and cannot be substituted in
place of grandmother for the purposes of her timely C-86 motion.
         {¶ 17} Relator has filed objections to the magistrate's decision. Relator contends
that the language in R.C. 4123.60, which allows the commission to consider an application
for loss of use compensation "for the benefit of all the dependents," allows grandmother's
motion to apply to him. Relator further argues that the relevant statute is silent regarding
how such an application must be made when there is a minor dependent and a "prospective
dependent." Accordingly, relator contends that the Ohio BWC administrator must consider
grandmother's timely motion as to any proper dependents even though the commission
ultimately determined that she is not a dependent.
         {¶ 18} We now independently review the record and the magistrate's decision to
determine whether the magistrate "appropriately applied the law." Civ.R. 53(D)(4)(d).
                                                                                            4
No. 18AP-66


II. LAW & ANALYSIS
       {¶ 19} "A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint." State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992); see also State ex rel. Belle
Tire Distribs., Inc. v. Indus. Comm., 154 Ohio St.3d 488, 490, 2018-Ohio-2122, ¶ 17. A
court may grant a motion to dismiss only when the complaint, when construed in the light
most favorable to relator and presuming all the factual allegations in the complaint are true,
demonstrates that the relator can prove no set of facts entitling him to relief. Belle Tire
Distribs. at ¶ 17, citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
       {¶ 20} "Pursuant to R.C. 4123.52, the commission has continuing jurisdiction over
a case and may modify or change its former findings or orders if the commission finds that
a change is justified."   Belle Tire Distribs. at ¶ 7. But "[c]ontinuing jurisdiction is not
unlimited; a party seeking to invoke the commission's continuing jurisdiction must show
(1) new and changed circumstances, (2) fraud, (3) a clear mistake of fact or law, or (4) an
error by an inferior tribunal." Id., citing State ex rel. Nicholls v. Indus. Comm., 81 Ohio
St.3d 454, 459 (1998).
       {¶ 21} "The commission's decision to exercise continuing jurisdiction is reviewable
in mandamus, under an abuse-of-discretion standard." Id. at ¶ 18, citing State ex rel.
Saunders v. Metal Container Corp., 52 Ohio St.3d 85 (1990).
       {¶ 22} Relator asserts in his complaint that new and changed circumstances, namely
grandmother's initial status as a prospective dependent, provides a basis for the
commission to exercise continuing jurisdiction here. But relator did not show that there
has been any change in circumstances. When relator's grandmother filed the motion, she
was deemed a prospective dependent. When the motion was denied, the commission
determined that she was not a dependent. Relator had not filed his own motion yet, so the
commission's determination had no impact on relator's motion.                 Grandmother's
classification as a prospective dependent—and the later determination that she was not a
dependent—had no impact on whether relator was a dependent. There was nothing to stop
relator from filing his own C-86 motion; it was not dependent upon grandmother's motion.
Grandmother's motion did not purport to be filed on relator's behalf. Nothing has
happened since the denial of either of the parties' original motions that affects the
                                                                                           5
No. 18AP-66


classification of either relator or grandmother as a dependent.            Accordingly, the
commission did not abuse its discretion in failing to exercise continuing jurisdiction due to
"new and changed circumstances" because there were no new and changed circumstances.
See R.C. 4123.52.
       {¶ 23} The majority of the parties' briefs on the motions to dismiss and on the
objections to the magistrate's decision focus on the commission's legal determinations. A
clear mistake in the law would also provide a basis for the commission to exercise
continuing jurisdiction. See R.C. 4123.52.
       {¶ 24} R.C. 4123.60 addresses when a dependent is eligible to assert a decedent's
rights under the workers' compensation statutes after the decedent's death. It provides:
              Benefits in case of death shall be paid to such one or more of
              the dependents of the decedent, for the benefit of all the
              dependents as the administrator of workers' compensation
              determines. The administrator may apportion the benefits
              among the dependents in such manner as he deems just and
              equitable. Payment to a dependent subsequent in right may be
              made, if the administrator deems it proper, and operates to
              discharge all other claims therefor. The dependents or person
              to whom benefits are paid shall apply the same to the use of the
              several beneficiaries thereof according to their respective
              claims upon the decedent for support, in compliance with the
              finding and direction of the administrator.

              In all cases of death where the dependents are a surviving
              spouse and one or more children, it is sufficient for the
              surviving spouse to apply to the administrator on behalf of the
              spouse and minor children. In cases where all the dependents
              are minors, a guardian or next friend of such minor
              dependents shall apply.

              * * * If the decedent would have been lawfully entitled to have
              applied for an award at the time of his death the administrator
              may, after satisfactory proof to warrant an award and payment,
              award and pay an amount, not exceeding the compensation
              which the decedent might have received, but for his death, for
              the period prior to the date of his death, to such of the
              dependents of the decedent, or for services rendered on
              account of the last illness or death of such decedent, as the
              administrator determines in accordance with the
              circumstances in each such case, but such payments may be
              made only in cases in which application for compensation was
                                                                                         6
No. 18AP-66


              made in the manner required by this chapter, during the
              lifetime of such injured or disabled person, or within one year
              after the death of such injured or disabled person.

(Emphasis added.) R.C. 4123.60. Under this statute, the decedent's dependent was
required to apply for compensation for the decedent's loss of use claim within one year of
the decedent's death.
       {¶ 25} Relator requests that this court issue a writ ordering the commission to find
that the May 4, 2015 C-86 motion be deemed timely filed. But there is no dispute that the
May 4, 2015 motion was filed within the one-year deadline in R.C. 4123.60.             The
commission has never found that motion to be untimely. Nonetheless, it was relator's
grandmother who filed the May 4, 2015 motion. Relator did not file his motion until May
2, 2016. Relator's motion was nearly one year too late to meet the statutory deadline. He
waited over ten months after the DHO determined that grandmother was not a dependent;
approximately nine months after the SHO agreed with that determination; and nearly four
months after the commission dismissed grandmother's motion.
       {¶ 26} Knowing that his own motion was untimely, relator seeks to be substituted in
the place of grandmother. Relator requests that we order the commission to process
grandmother's motion, apply it to him, and award him loss of use benefits.
       {¶ 27} There is no provision in law that allows the commission to do what relator
requests. R.C. 4123.60 provides the circumstances under which a decedent's dependents
can seek benefits to which the decedent would be entitled. "In cases where all the
dependents are minors, a guardian or next friend of such minor dependents shall apply."
R.C. 4123.60. Although relator contends that this provision does not apply to him because
grandmother was temporarily considered a prospective dependent, the designation of
"prospective dependent" does not confer any legal rights upon grandmother under R.C.
4123.60. Plainly, relator, a minor, is decedent's only dependent. Therefore, his guardian
or next friend was required to apply for loss of use benefits on his behalf within one year
after decedent's death. There has never been any argument that relator's grandmother has
even been relator's guardian or next friend.
       {¶ 28} Relator contends that R.C. 4123.60 allows the commission to consider an
application for loss of use compensation "for the benefit of all the dependents," such that
                                                                                            7
No. 18AP-66


grandmother's motion can apply to him. That provision, however, addresses how and to
whom benefits will be "paid." It presumes and is limited by the provision that specifies who
can apply for benefits. R.C. 4123.60 also provides that benefit "payments may be made only
in cases in which application for compensation was made in the manner required by this
chapter." As stated, application must have been made by relator's guardian within one year
of decedent's death under the statute. That did not happen. Nothing in the statute or in
the language relator cites allows the commission to subvert the statutory requirements in
order to consider grandmother's dismissed motion as filed for relator's benefit. Because
the commission did not make a clear mistake of law, it did not abuse its discretion in failing
to exercise its continuing jurisdiction to reconsider grandmother's May 4, 2015 C-86
motion.
III. CONCLUSION
       {¶ 29} Because the statute does not allow the commission to provide the relief
relator requests, we overrule relator's objections to the magistrate's decision. We adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law
contained in it. Relator's complaint is dismissed.
                                                     Objections overruled; case dismissed.

                          KLATT, P.J., and SADLER, J., concur.
                                                                                             8
No. 18AP-66




                                         APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT



The State ex rel. Michael C. Cottrell,         :

                                               :
              Relator,
                                               :
v.                                                                   No. 18AP-66
                                               :
Industrial Commission of Ohio et al.,                          (REGULAR CALENDAR)
                                               :
              Respondents.
                                               :



                          MAGISTRATE'S DECISION

                              Rendered on December 21, 2018



              Steven G. Thomakos, for relator.

              Michael DeWine, Attorney General, and Sherry M. Phillips,
              for respondent Industrial Commission of Ohio.

              Michael DeWine, Attorney General, and Patsy A. Thomas, for
              respondent Ohio Bureau of Workers' Compensation.



                                IN MANDAMUS
                      ON RESPONDENTS' MOTIONS TO DISMISS

       {¶ 30} Relator, Brooks J. Cottrell, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
                                                                                         9
No. 18AP-66


("commission") to find that the loss of use application he filed following the death of his
father, Michael C. Cottrell ("decedent"), was timely filed, and ordering the commission to
process the application.
Findings of Fact:
       {¶ 31} 1. The decedent was an employee of Sutton Pump and Symbol Supply, Inc.
on May 12, 2014 when he was injured in an explosion. Decedent died a few hours later.
       {¶ 32} 2. On July 3, 2014, a death claim was allowed with decedent's son, relator
herein, as the sole dependent.
       {¶ 33} 3. On April 17, 2015, the administrator for the Ohio Bureau of Workers'
Compensation ("BWC") named decedent's mother, Maretta Cottrell ("Maretta") as a
prospective dependent.
       {¶ 34} 4. On May 4, 2015, Maretta filed a C-86 motion requesting a loss of use
award and submitted medical evidence indicating that decedent suffered a total loss of
use of his bilateral lower extremities before he died.
       {¶ 35} 5. Following a hearing before a district hearing officer ("DHO") on June 30,
2015, it was determined that Maretta was not a dependent, either wholly, partially, or
prospectively. This order was administratively affirmed.
       {¶ 36} 6. Because Maretta was found not to be a dependent, an exparte order
issued dismissing her C-86 motion regarding a scheduled loss award on January 9, 2016.
       {¶ 37} 7. On May 2, 2016, relator, through counsel, filed a C-86 motion requesting
the commission exercise its continuing jurisdiction to reconsider the loss of use motion
which had been filed by Maretta and dismissed after it was determined that she was not
a dependent.
       {¶ 38} 8. Relator also filed a motion asking the commission to re-activate the loss
of use motion filed by Maretta.
       {¶ 39} 9. A hearing was held before a staff hearing officer ("SHO") on October 2,
2017. The SHO determined that relator could not be substituted for Maretta because her
motion had already been dismissed. Further, the commission denied relator's request to
exercise its continuing jurisdiction finding that relator failed to present sufficient
persuasive evidence to support the request. Specifically, the SHO order provides:
                                                                                10
No. 18AP-66


              Counsel for Brooks Cottrell has now filed another motion on
              05/12/2017 requesting that the Industrial Commission
              reconsider its 04/28/2018 ex parte order. At hearing, the
              decedent's representative argued that the sole surviving
              dependent should be substituted as the moving party under
              the 05/04/2015 C-86 motion filed by the decedent's mother.
              The theory advanced by counsel is that the decedent's mother
              was considered to be a dependent at the time she filed the
              motion for a scheduled loss award. Although she was
              subsequently found not to be a dependent and therefore not a
              party to the claim, her filing of the motion should allow the
              remaining sole dependent to stand in her place and pursue a
              scheduled loss award under the timely motion filed by the
              decedent's mother.

              However, no statute, case law, or other legal authority has
              been cited to allow substitution of Brooks Cottrell for Maretta
              Cottrell under a motion that has already been dismissed by
              the Industrial Commission. In addition, the District Hearing
              Officer finds that Brooks Cottrell had already been found to be
              a dependent in this claim long before the expiration of the
              statute of limitations for an accrued scheduled loss award. No
              explanation has been offered regarding why Brooks Cottrell
              could not have filed his own motion for a scheduled loss award
              at any point prior to the expiration of the statute of
              limitations. The District Hearing Officer find that Brooks
              Cottrell could have filed such a motion on his own
              independent of the motion filed by the decedent's mother,
              whose alleged status as a dependent was being disputed.

              As the sole remaining dependent, Brooks Cottrell, has not
              presented sufficient persuasive evidence in support of his
              request that the Industrial Commission exercise its
              continuing jurisdiction under Ohio Revised Code 4123.52, the
              Staff Hearing Officer orders that the request to reconsider the
              District Hearing Officer's ex parte order issued 04/28/2017 is
              denied.

              All evidence was reviewed and considered.

      {¶ 40} 10. Thereafter, relator filed this mandamus action.
      {¶ 41} 11. Respondents, the commission and BWC, filed motions to dismiss and
relator has filed a memorandum opposing the same.
                                                                                           11
No. 18AP-66


       {¶ 42} 12. The matter is currently before the magistrate on the motions to dismiss
and the response thereto.
Conclusions of Law:
       {¶ 43} The commission and the BWC both argue that relator's motion seeking a
scheduled loss of use award resulting from the death of decedent was not timely filed and
there is no legal mechanism whereby relator can be substituted for decedent's mother or
that the claim can be reactivated on relator's behalf.
       {¶ 44} Relator argues that, because the workers' compensation laws are to be
liberally construed, this court should find the commission's determination that decedent's
mother was not a dependent constituted new and changed circumstances requiring the
commission to substitute relator in her place.
       {¶ 45} Because the magistrate finds no statutory or case law that would support
relator's argument, this court should grant the motions to dismiss.
       {¶ 46} 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).
       {¶ 47} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint,
the court must take all the material allegations as admitted and construe all reasonable
inferences in favor of the nonmoving party. Id.
       {¶ 48} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that relator
can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants
Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not
subject to dismissal under Civ.R. 12(B+)(6) if the complaint alleges the existence of a legal
duty by the respondent and the lack of an adequate remedy at law for relator with
sufficient particularity to put the respondent on notice of the substance of the claim being
asserted against it, and it appears that relator might prove some set of facts entitling him
                                                                                        12
No. 18AP-66


to relief. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d
94 (1995). For the following reasons, respondents' motions should be granted and
relator's complaint should be dismissed.
       {¶ 49} R.C. 4123.57 provides, in pertinent part:

              Partial disability compensation shall be paid as follows.

              Except as provided in this section, not earlier than twenty-six
              weeks after the date of termination of the latest period of
              payments under section 4123.56 of the Revised Code, or not
              earlier than twenty-six weeks after the date of the injury or
              contraction of an occupational disease in the absence of
              payments under section 4123.56 of the Revised Code, the
              employee may file an application with the bureau of workers’
              compensation for the determination of the percentage of the
              employee’s permanent partial disability resulting from an
              injury or occupational disease.

              In addition, R.C. 4123.60 provides, in pertinent part:
              If the decedent would have been lawfully entitled to have
              applied for an award at the time of his death the administrator
              may, after satisfactory proof to warrant an award and
              payment, award and pay an amount, not exceeding the
              compensation which the decedent might have received, but
              for his death, * * * but such payments may be made only in
              cases in which application for compensation was made in the
              manner required by this chapter, during the lifetime of such
              injured or disabled person, or within one year after the death
              of such injured or disabled person.

       {¶ 50} Maretta filed a timely application for a scheduled loss of use award
concerning decedent's loss of use of his lower bilateral extremities. This application was
filed on her own behalf, and not on behalf of herself and other dependents. When she was
found not to be a dependent, her application was dismissed. Relator does not argue that
dismissal of Maretta's application was improper.
       {¶ 51} Relator filed an application for scheduled loss of use award after the one-
year statute of limitations had expired. Relator's application was not filed timely. As
such, the commission did not process the application. Relator acknowledges that his
application was not timely filed.
                                                                                           13
No. 18AP-66


       {¶ 52} Relator argues that, because R.C. 4123.60 provides that benefits shall be
paid to one or more of the dependents of the decedent, for the benefit of all the
dependents, that Maretta's application was the only application that needed to be filed.
In essence, relator argues that decedent's mother filed her application on her behalf and
on behalf of any and all dependents despite the fact that her application did not make any
such assertion. Relator also argues that, because it is sufficient if a surviving spouse files
an application on their own behalf it benefits the minor children, the application of a
grandmother should have the same effect.
       {¶ 53} R.C. 4123.60 simply does not say what relator wants it to say.             The
decedent's mother did not include the relator in her application, although, presumably,
she could have, and no one filed an application on relator's behalf. There simply is no
case law to which relator can point which allows him to step into the shoes of decedent's
mother.
       {¶ 54} 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
                                                                                        14
No. 18AP-66


              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.

       {¶ 55} Relator also argues that the determination that decedent's mother was not
a dependent constitutes new and changed circumstances warranting the commission to
exercise its continuing jurisdiction and reactivate the application. Although he was found
to be a dependent, relator took no steps to file a motion, or join in Maretta's motion even
though her dependency was at issue. There simply is no statutory authority nor is there
any case law which supports the conclusion that relator asks this court to reach today.
Relator has not shown and cannot show that the commission abused its discretion. As
such, it is this magistrate's decision that this court should grant the commission's motion
and dismiss relator's mandamus complaint.




                                              /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).
