[Cite as State ex rel. Sheppard v. Indus. Comm., 139 Ohio St.3d 223, 2014-Ohio-1904.]




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

      [Cite as State ex rel. Sheppard v. Indus. Comm., 139 Ohio St.3d 223,
                                    2014-Ohio-1904.]
Workers’ compensation—Permanent total disability—R.C. 4123.52—Continuing
           jurisdiction of Industrial Commission—Clear mistake of law as basis for
           granting reconsideration—Commission does not abuse discretion by
           exercising continuing jurisdiction to correct order granting permanent-
           total-disability benefits when order failed to address employer’s
           argument regarding an intervening injury—Once jurisdiction is invoked,
           commission has discretion to reexamine all evidence and decide claim on
           its merits.
     (No. 2012-1755—Submitted February 4, 2014—Decided May 7, 2014.)
      APPEAL from the Court of Appeals for Franklin County, No. 11AP-553,
                                    2012-Ohio-4301.
                                ____________________
        Per Curiam.
        {¶ 1} Robert L. Sheppard has appealed the judgment of the court of
appeals denying his request for a writ of mandamus.                The court of appeals
concluded that the Industrial Commission did not abuse its discretion when it
invoked its continuing jurisdiction to reconsider a mistake of law and that the
commission’s continuing jurisdiction vested it with authority to review the merits
of the underlying application for permanent-total-disability compensation.
        {¶ 2} For the reasons that follow, we affirm the judgment of the court of
appeals.
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       {¶ 3} On October 9, 1997, Sheppard was injured while working for
Shelly & Sands, Inc., a self-insured employer. His workers’ compensation claim
was allowed for lumbosacral sprain and a herniated disc. Sheppard also suffered
from degenerative disc disease not related to his industrial injury. Furthermore, in
February 2002, he reinjured his back. That incident was apparently not work-
related; in any event, no claim has been allowed for the 2002 injury. In 2004,
Sheppard took early retirement. MRI results around that time confirmed that his
herniated disc had resolved.
       {¶ 4} In 2006, Sheppard filed a motion to reactivate his claim to pay for
further medical treatment. The commission determined that the treatment was
related to his degenerative disc disease, a nonallowed condition, and denied his
motion.
       {¶ 5} On March 5, 2010, Sheppard filed an application for permanent-
total-disability compensation. Following a hearing, a staff hearing officer granted
the application based on the opinion of Dr. Richard M. Ward. The hearing officer
also identified Sheppard’s nonmedical disability factors but did not analyze their
effect on his inability to work.
       {¶ 6} Shelly & Sands, Sheppard’s former employer, filed a request for
reconsideration on the basis that the staff hearing officer’s order contained
mistakes of both fact and law. The commission issued an interlocutory order
finding that the staff hearing officer failed to address the employer’s critical
argument regarding the 2002 intervening injury and that this omission was a clear
mistake of law justifying a further hearing on the matter to address the issues of
continuing jurisdiction and permanent total disability.
       {¶ 7} Following that hearing, the commission issued a detailed order that
(1) confirmed that the staff hearing officer’s order contained a clear mistake of
law, specifically, his failure to address the employer’s critical argument alleging
that the 2002 intervening injury was the actual cause of Sheppard’s condition, (2)




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concluded that there was insufficient evidence that the intervening injury broke
the causal connection between Sheppard’s current symptoms and the allowed
conditions of his claim, and (3) denied the underlying request for permanent-total-
disability compensation based on the report of Dr. Charles Lowrey and an
analysis of Sheppard’s nonmedical disability factors.
       {¶ 8} Sheppard filed a complaint for a writ of mandamus alleging that
the commission had abused its discretion when it exercised continuing jurisdiction
and denied permanent-total-disability compensation. A magistrate concluded that
the commission had not abused its discretion and recommended that the court
deny the writ.
       {¶ 9} Sheppard filed objections to the magistrate’s report.        First, he
argued that the magistrate never explained why the hearing officer’s failure to
address the intervening-injury argument was a mistake of law, and second, he
objected to the magistrate’s conclusion that the commission had authority to
reexamine the evidence of permanent total disability after finding that there was
no intervening injury.
       {¶ 10} The court of appeals overruled the objections and denied the writ.
The court cited State ex rel. Mackey v. Ohio Dept. of Edn., 10th Dist. Franklin No.
09AP-966, 2010-Ohio-3522, for the proposition that a staff hearing officer’s
failure to address an issue raised by an employer constitutes a mistake of law
sufficient for the commission to invoke its continuing jurisdiction. The appellate
court refused to assume that the hearing officer’s failure to address the
intervening-injury argument meant that he had rejected it.         The court also
concluded that once the commission invoked its continuing jurisdiction, it had
authority to reconsider the issue of permanent total disability.
       {¶ 11} Sheppard filed this appeal as of right.
       {¶ 12} To be entitled to the extraordinary remedy of a writ of mandamus,
Sheppard must show that the commission abused its discretion in carrying out its



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duties. State ex rel. Gen. Motors Corp. v. Indus. Comm., 117 Ohio St.3d 480,
2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9.              Sheppard maintains that the
commission’s decision to exercise continuing jurisdiction to review what it
described as a mistake of law was an abuse of discretion.
       {¶ 13} Sheppard raises the following issues: (1) whether the staff hearing
officer’s failure to address the intervening injury constituted a mistake of law
justifying the exercise of continuing jurisdiction and, if so, (2) whether the
commission’s continuing jurisdiction vested it with authority to issue a new order
that denied permanent-total-disability compensation.
The Commission’s Continuing Jurisdiction
       {¶ 14} R.C. 4123.52 provides the Industrial Commission with continuing
jurisdiction over each case to modify or change former findings or orders. But
this authority is not unlimited. It can be invoked only when there is evidence of
“(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. Nicholls v.
Indus. Comm., 81 Ohio St.3d 454, 459, 692 N.E.2d 188 (1998). The commission
is required to identify and explain the basis for invoking its continuing
jurisdiction. State ex rel. Lowe v. Cincinnati, Inc., 124 Ohio St.3d 204, 2009-
Ohio-5864, 921 N.E.2d 205, ¶ 17.
       {¶ 15} Here, the commission determined that the staff hearing officer’s
failure to address the employer’s critical argument about an intervening injury
was a mistake of law.      Sheppard contends that the hearing officer was not
required to address an intervening injury; thus, failure to address the issue was not
a mistake of law justifying the exercise of continuing jurisdiction.
       {¶ 16} Permanent total disability is defined as the inability to perform
sustained remunerative employment as a result of the allowed conditions in the
claim. Ohio Adm.Code 4121-3-34(B)(1); State ex rel. Nissin Brake Ohio, Inc. v.
Indus. Comm., 127 Ohio St.3d 385, 2010-Ohio-6135, 939 N.E.2d 1242, ¶ 12. The




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burden is on the claimant to establish that the disability is permanent and that the
inability to work is causally related to the allowed conditions. Ohio Adm.Code
4121-3-34(D)(3)(a); State ex rel. LTV Steel Co. v. Indus. Comm., 65 Ohio St.3d
22, 23, 599 N.E.2d 265 (1992). An intervening injury is one that is not related to
the allowed claim and breaks the causal connection between the industrial injury
and the disability. Cascone v. Herb Kay Co., 6 Ohio St.3d 155, 451 N.E.2d 815
(1983).     An intervening injury could eliminate the industrial injury as the
proximate cause of the inability to work and thus destroy the claimant’s eligibility
for permanent-total-disability compensation.
          {¶ 17} The court of appeals relied on Mackey, 2010-Ohio-3522, as
authority that a hearing officer’s failure to address an issue raised by an employer
constitutes a mistake of law sufficient for the commission to invoke its continuing
jurisdiction. In Mackey, the hearing officer awarded the claimant compensation
for permanent total disability, but the order did not address the employer’s
argument that the claimant had voluntarily retired. Mackey’s employer moved for
reconsideration, alleging that the hearing officer had made a clear mistake of law
when he failed to address the issue of voluntary abandonment of employment.
The commission agreed.        Upon reconsideration, the commission found that
Mackey had voluntarily retired and was ineligible for permanent-total-disability
compensation.
          {¶ 18} We affirmed. 130 Ohio St.3d 108, 2011-Ohio-4910, 955 N.E.2d
1005. We held that because the issue of voluntary abandonment was critical to
Mackey’s eligibility for an award, the hearing officer’s failure to address the issue
was a clear mistake of law, and the commission did not abuse its discretion when
it reopened the issue of Mackey’s eligibility for compensation in order to consider
the effect of Mackey’s retirement. Id., ¶ 5.
          {¶ 19} Sheppard argues that Mackey is distinguishable because it involves
voluntary abandonment, an issue that Ohio Adm.Code 4121-3-34(D)(1)(d)



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requires a hearing officer to address, whereas there is no similar requirement that
a hearing officer address an argument involving an intervening injury.
       {¶ 20} Sheppard’s narrow focus on the particular issue of voluntary
retirement fails to acknowledge other factors that the commission must consider
in evaluating proximate cause and ultimately, the claimant’s eligibility for
benefits.   Like voluntary retirement or abandonment of employment, an
intervening injury is critical to the issue of proximate cause and to determining
whether the claimant is eligible for permanent-total-disability compensation. It is
true that the commission’s administrative guidelines expressly require the hearing
officer to address the issue of voluntary abandonment, Ohio Adm.Code 4121-3-
34(D)(1)(d), but the Code also requires the hearing officer to specifically
determine whether the claimant established proximate cause. Ohio Adm.Code
4121-3-34(D)(1)(h) and (3)(e).
       {¶ 21} Sheppard also argues that there is no indication in the record that
the employer actually brought the intervening injury to the hearing officer’s
attention during the hearing. Sheppard did not raise this argument below; thus, it
is waived. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81-83,
679 N.E.2d 706 (1997).       Nevertheless, there is no dispute that the record
contained evidence substantiating the 2002 injury. Furthermore, a hearing officer
is required to review all relevant factors in the record that may affect the
claimant’s ability to work, Ohio Adm.Code 4121-3-34(D)(3)(g), and the 2002
injury would be one of those factors.
       {¶ 22} Therefore, the commission did not abuse its discretion when it
determined that the hearing officer’s failure to address the intervening-injury
argument was a mistake of law that justified the commission’s reopening the
claim to examine the issue. Mackey, 130 Ohio St.3d 108, 2011-Ohio-4910, 955
N.E.2d 1005.    Once the commission specifically identified the grounds that




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constituted a mistake of law, the commission did not abuse its discretion in
exercising its continuing jurisdiction.
The Commission’s Authority to Modify or Change a Former Order
       {¶ 23} Sheppard contends that once the commission determined that there
was insufficient evidence that an intervening injury broke the causal connection
between his allowed conditions and his inability to work, it did not have authority
to review the merits of his underlying application and deny his request for
compensation.
       {¶ 24} R.C. 4123.52(A) confers broad authority on the commission to
“make such modification or change” to a former finding or order “as, in its
opinion, is justified.” The commission’s broad authority under R.C. 4123.52
permits it to address any issues pertaining to the order in question. State ex rel.
Haddox v. Indus. Comm., 135 Ohio St.3d 307, 2013-Ohio-794, 986 N.E.2d 939,
¶ 32. When the commission granted the employer’s request to reconsider and
exercised its continuing jurisdiction, it vacated the underlying order of the staff
hearing officer. Once the commission vacated the entire order, it was required to
reexamine all facets of Sheppard’s eligibility for compensation. See State ex rel.
York Internatl. Corp. v. Kopis, 114 Ohio St.3d 442, 2007-Ohio-4556, 872 N.E.2d
1221, ¶ 9. This reexamination legitimately included not only evidence of the
intervening injury, but also all the evidence on the merits of the underlying
request for permanent-total-disability compensation.
       {¶ 25} Accordingly, we affirm the judgment of the court of appeals.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
       PFEIFER, J., dissents.
                                ____________________




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         PFEIFER, J., dissenting.
         {¶ 26} Robert L. Sheppard filed an application for permanent-total-
disability compensation, which was granted. For whatever reason, the hearing
officer who granted the application failed to consider the effect of an intervening
injury. The employer filed a request for reconsideration, based on the hearing
officer’s failure to consider that issue. The commission reviewed the matter and
agreed that the intervening injury had not been properly considered. Then, after a
hearing, the commission considered the intervening injury and concluded that
there was insufficient evidence to conclude that the injury had broken the causal
connection between Sheppard’s current symptoms and the allowed conditions of
his claim.
         {¶ 27} In a just world, that would have been the end of the matter. But
even though the legitimate reason for the reconsideration request had been
determined to be insufficient to undermine the grant of compensation, the
commission, as part of its continuing jurisdiction, decided to review the entire
claim.    Reviewing a different medical report than the hearing officer had
reviewed, the commission concluded that Sheppard’s application for permanent-
total-disability compensation should not be granted.
         {¶ 28} This process and the ensuing result strike me as unfair to Sheppard.
There is no reason to believe that his claim would have been reviewed absent the
appeal by his employer, in which case, his claim would have remained
undisturbed. That an appeal, which, though legitimate, ultimately proved to be
without merit, has nevertheless resulted in Sheppard’s claim being denied is a big-
picture cause for concern.
         {¶ 29} Losers in workers’ compensation claims, whether employers or
employees, will now have incentive to scour records to search for any conceivable
mistake of law, however trivial. Even if the reason for reconsideration is not
sufficient to lead to a different result, the party will have reason to hope that the




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commission will review the entire claim, as part of its ongoing jurisdiction. That
party will hope for a different result, whether because of a report from a different
doctor or for any number of reasons. The upshot of the decision today is that
parties in workers’ compensation cases will have little prospect of finality, even
barring a change in health or other circumstance, and every incentive to prolong
the process as much as possible. Under the reasoning of today’s decision, there is
always a chance that the commission will reach a different result and that a party,
again, whether employer or employee, will get multiple chances to obtain its
desired result.
        {¶ 30} I dissent.
                              ___________________
        Philip J. Fulton Law Office, Chelsea J. Fulton, and Philip J. Fulton, for
appellant.
        Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant
Attorney General, for appellee Industrial Commission.
        Hanna, Campbell & Powell, L.L.P., and Lori A. Whitten, for appellee
Shelly & Sands, Inc.
                            _________________________




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