[Cite as State ex rel. Neitzelt v. Indus. Comm. , 2019-Ohio-2579.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


The State ex rel. Christina Neitzelt,                    :

                 Relator,                                :

v.                                                       :              No. 18AP-152

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

                 Respondents.                            :



                                             D E C I S I O N

                                       Rendered on June 27, 2019


                 On brief: Hochman & Plunkett Co., L.P.A., Gary D. Plunkett,
                 and Marcus A. Heath, for relator.

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

                 On brief: Crabbe, Brown & James, LLP, and John C. Albert,
                 for respondent Vitas Healthcare Corporation of Ohio.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.
        {¶ 1} Relator, Christina Neitzelt, initiated this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order wherein the commission exercised its continuing
jurisdiction based on new and changed circumstances and a clear mistake of fact which
resulted in an order denying her claim for L4-L5 disc herniation.
        {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
No. 18AP-152                                                                                               2


appended decision, including findings of fact and conclusions of law. The magistrate, citing
the Supreme Court of Ohio's recent decision in State ex rel. Belle Tire Distribs., Inc. v.
Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122, rejected the commission's threshold
argument that its decision to exercise continuing jurisdiction in this matter is not
reviewable in mandamus because the ultimate determination regarding Neitzelt's
participation in the workers' compensation fund was appealable. As to the continuing
jurisdiction issue, the magistrate determined that Neitzelt has not demonstrated that the
commission abused its discretion when it exercised its continuing jurisdiction and denied
Neitzelt's claim for L4-L5 disc herniation. Thus, the magistrate recommends this court
deny Neitzelt's request for a writ of mandamus.
        {¶ 3} Neitzelt has filed objections to the magistrate's decision. Generally, Neitzelt
argues the magistrate erred in concluding that the commission did not abuse its discretion
when it exercised its continuing jurisdiction and disallowed relator's claim for L4-L5 disc
herniation.1 More particularly, she alleges the magistrate erred by not finding that the
commission's exercise of continuing jurisdiction was barred by the applicable statute of
limitations or res judicata, concluding that evidence of the non-existence of her L4-L5 disc
herniation was not readily discoverable absent surgery, concluding that Dr. Nicolas
Grisoni's operative report was evidence of the non-existence of the disc herniation, and
concluding that it was her burden to re-litigate the disc herniation issue after the initial
allowance. We agree with Neitzelt's contention that the commission abused its discretion
in exercising its continuing jurisdiction to deny her claim for L4-L5 disc herniation.
        {¶ 4} 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." This continuing jurisdiction is
not unlimited, however, as it only may be invoked when there exists (1) new and changed
circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, and (5) error by

1 No party has filed objections to the magistrate's conclusion that the issue of whether the commission

abused its discretion when it exercised its continuing jurisdiction is properly before this court despite the
fact that the commission's exercise of continuing jurisdiction ultimately affected Neitzelt's right-to-
participate. On this issue, we agree with the magistrate's application of the Supreme Court of Ohio's recent
decision in State ex rel. Belle Tire Distribs., Inc. to the facts of this case.
No. 18AP-152                                                                                3


inferior tribunal. State ex rel. Robertson v. Indus. Comm., 10th Dist. No. 13AP-77, 2014-
Ohio-2417, ¶ 7. In addition to this substantive limitation, there are time constraints on
when the commission may exercise its continuing jurisdiction. As to orders that are
appealable, the commission has jurisdiction over such an order only until that order is
appealed or the appeal time has elapsed. State ex rel. Gatlin v. Yellow Freight Sys., Inc.,
18 Ohio St.3d 246, 249 (1985), citing State ex rel. Prayner v. Indus. Comm., 2 Ohio St.2d
120, 121 (1965), and Todd v. Gen. Motors Corp., 65 Ohio St.2d 18 (1981); Palmer Bros.
Concrete, Inc. v. Indus. Comm., 3d Dist. No. 13-07-16, 2008-Ohio-345, ¶ 20; see State ex
rel. Johnson v. Cooper Industries, 10th Dist. No. 82AP-703 (Aug. 30, 1983) (noting that
because the order was not appealable, the continuing jurisdiction of the commission "did
not expire 60 days after issuance of the order at the latest, as it would have had the order
been appealable").    The commission retains jurisdiction over non-appealable orders,
however, "for a reasonable period of time," which cannot extend beyond the filing of a
mandamus complaint. State ex rel. Rodriguez v. Indus. Comm., 67 Ohio St.3d 210, 213
(1993).
       {¶ 5} Here, the commission allowed Neitzelt's claim for L4-L5 disc herniation in
June 2016. This allowance became final on June 29, 2016, when the commission refused
to hear the appeal of respondent Vitas Healthcare Corporation of Ohio ("Vitas Healthcare")
from the staff hearing officer order granting the additional claim allowance. Pursuant to
R.C. 4123.512(A), Vitas Healthcare had 60 days to file an appeal from the commission's
final order that granted Neitzelt's claim for L4-L5 disc herniation. State ex rel. Liposchak
v. Indus. Comm., 90 Ohio St.3d 276, 279-80 (2000), citing R.C. 4123.512. But it did not
file an appeal. Subsequently, in December 2016, Neitzelt had back surgery. Approximately
nine months later, in October 2017, Vitas Healthcare moved the commission to exercise its
continuing jurisdiction to vacate the allowance of L4-L5 disc herniation, citing the operative
report for the December 2016 surgery and an October 2017 report of a physician who
opined that the December 2016 surgery was performed for non-work related conditions.
The commission granted the motion, based on its findings that there were new and changed
circumstances and a clear mistake of fact regarding the presence of an L4-L5 disc
herniation.   However, because the commission's order granting Neitzelt's additional
allowance for L4-L5 disc herniation was a final and appealable right-to-participate order,
No. 18AP-152                                                                               4


the commission's continuing jurisdiction over that order ceased once the 60-day appeal
period lapsed in 2016.       Therefore, the commission improperly exercised continuing
jurisdiction over the order in 2018.
       {¶ 6} Following our independent review of the record pursuant to Civ.R. 53, we
adopt the magistrate's findings of fact. We find the magistrate correctly determined that
the issue of whether the commission abused its discretion in exercising its continuing
jurisdiction is properly before this court. However, we disagree with the magistrate's
conclusion that the commission did not abuse its discretion in exercising its continuing
jurisdiction. Accordingly, the magistrate's conclusions of law are adopted in part. For the
reasons stated above, we sustain Neitzelt's objections to the magistrate's decision and grant
her request for a writ of mandamus. The commission is hereby ordered to vacate its order
exercising its continuing jurisdiction and any resulting orders based thereon.
                                                                     Objections sustained;
                                                               writ of mandamus granted.

                                BROWN, J., concurs.
                 DORRIAN, J., concurs in part and concurs in judgment.

DORRIAN, J., concurring in part and concurring in judgment.
       {¶ 7} I concur with the majority and would sustain the objections and grant the
writ. I write separately, however, to clarify that prior to determining whether the 60-day
temporal limitation applies, it is necessary to determine whether the commission has
grounds to exercise continuing jurisdiction. If the commission properly determines there
was: (1) a clear mistake of fact, (2) a clear mistake of law, (3) new and changed
circumstances, (4) fraud, or (5) an error by an inferior tribunal, then the 60-day temporal
limitation does not apply.
       {¶ 8} In this case, the commission determined that Dr. Grisoni's surgical record of
December 8, 2016 and Dr. Rozen's medical opinion report of October 22, 2017 constituted
"new and changed circumstances that were not reasonably discoverable at the time that the
issue of L4-L5 disc herniation was adjudicated and also presents evidence of a clear mistake
of fact regarding the presence of an L4-L5 disc herniation." (See appended Mag. Decision
at ¶ 27.) I believe the commission abused its discretion in making this determination.
No. 18AP-152                                                                                   5


       {¶ 9} Regarding the determination the new evidence constituted evidence of new
and changed circumstances, the new evidence did not constitute evidence that conditions
had changed subsequent to the initial award. Nor was the new evidence not reasonably
discoverable at the time of the initial award. To the contrary, at the time of the initial award,
the commission had before it the February 19, 2016 report of independent medical
examiner Dr. Griesser. Dr. Griesser opined prior to the initial award, much like Dr. Rozen
opined after the initial award, that relator did not have the requested L4-L5 herniation. The
commission rejected Dr. Griesser's opinion. It cannot now exercise continuing jurisdiction
to accept Dr. Rozen's opinion, which although was new evidence, was the same as Dr.
Griesser's opinion, that there was no L4-L5 disc herniation at the time of the initial award.
       {¶ 10} Regarding the determination the new evidence constituted a clear mistake of
fact, I first note that the employer did not argue in its motion to exercise continuing
jurisdiction or in its response to relator's motion in opposition to continuing jurisdiction
that the evidence constituted a mistake of fact. Nor did the commission articulate what
about the new evidence constituted a mistake of fact. Furthermore, mistake of fact has been
construed as clerical error, and the commission did not point to any clerical errors. Neither
the employer nor the commission point us to any authority that evidence obtained
subsequent to an initial award can, in and of itself, constitute a mistake of fact—especially
when similar evidence existed at the time of the initial award. Finally, even if the evidence
were considered a mistake of fact, it was not a clear mistake of fact given the contrary
evidence that the L4-L5 disc herniation did exist, upon which the commission relied in
granting the initial award.
       {¶ 11} Therefore, as I believe the commission abused its discretion in determining
that Dr. Grisoni's surgical record and Dr. Rozen's medical opinion constituted new and
changed circumstances and clear mistake of fact, I would sustain the objections to the
magistrate's decision. Accordingly, I then concur with the majority that the 60-day
temporal limitation applied and lapsed. I concur with the majority to issue the writ to order
the commission to vacate the January 30, 2018 order wherein it exercised its continuing
jurisdiction to deny relator's claim for L4-L5 disc herniation.
No. 18AP-152                                                                           6


                                         APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Christina Neitzelt,        :

               Relator,                      :

v.                                           :                   No. 18AP-152

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

               Respondents.                  :



                          MAGISTRATE'S DECISION

                              Rendered on September 27, 2018


               Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, and
               Marcus A. Heath, for relator.

               Michael DeWine, Attorney General, and Kevin J. Reis, for
               respondent Industrial Commission of Ohio.


                                        IN MANDAMUS

       {¶ 12} Relator, Christina Neitzelt, has filed this original action requesting this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") vacate its order wherein the commission exercised its continuing
jurisdiction based on new and changed circumstances as well as a clear mistake of fact
which resulted in an order denying her claim for L4-L5 disc herniation.
Findings of Fact:
       {¶ 13} 1. In July 2015, relator was working as a nurse for Vitas Healthcare
Corporation of Ohio ("Vitas Healthcare") when she sustained a work-related injury and
No. 18AP-152                                                                              7


her workers' compensation claim was originally allowed for:          "left shoulder strain;
thoracic strain; lumbosacral strain."
       {¶ 14} 2. On December 18, 2015, relator filed a motion asking that her claim be
additionally allowed for L4-L5 disc herniation.       In support of her motion, relator
submitted the November 20, 2015 office note of Nicolas Grisoni, M.D., who examined her
and reviewed an MRI. Dr. Grisoni opined that relator's "work-related injury caused pain
[and] acute left L4-5 disc protrusion." Dr. Grisoni recommended that she continue
physical therapy, begin a trial of Neurontin, as well as lumbar epidural steroid injections.
       {¶ 15} Relator also submitted the December 7, 2015 report of Martti E.
Kahkonen, M.D., which states, in pertinent part:
               Review of her records does indicate she had an MRI
               performed of her lumbar spine on 09/27/2015. The most
               significant finding is that of an L4-L5 disk herniation. There
               is a small disk bulge at L5-S1.

               She has seen a spine specialist, Dr. Grisoni in consultation on
               11/20/2015. In his medical opinion, most of her discomfort is
               coming from the left L4-L5 disk protrusion, which he
               characterized as acute.

               In my medical opinion, the L4-L5 acute disk herniation is a
               direct result of her injury sustained on 07/30/2015. This is
               with 85% medical certainty.

       {¶ 16} 3.     An independent medical evaluation was conducted by Michael J.
Griesser, M.D., who examined relator on February 19, 2016. After reviewing the history
of her injury, Dr. Griesser discussed the imaging which had been done, stating:
               X-rays of the lumbar spine at that time demonstrated mild
               degenerative disc disease at L1-L2. * * *

               ***

               An x-ray was obtained which identified minimal anterior
               spurring at L1-L2 and L4-L5.

               * * * An MRI of her lumbar spine was obtained on
               September 27, 2015, which identified degenerative changes.
No. 18AP-152                                                                             8


       {¶ 17} Dr. Griesser opined that relator has "chronic degenerative changes within
the lumbar spine, most notably at L1-L2 and L4-L5 which were noted on all the
radiographic images that have been taken." Dr. Griesser was asked whether he believed
relator's claim should be additionally allowed for L4-L5 disc herniation. Dr. Griesser
asserted that it should not, stating:
               It is my opinion the claimant does not have the requested L4-
               5 disc herniation based upon the September 2015 MRI which
               instead identified multilevel degenerative changes of the
               lumbar spine. * * * [I]nstead, there is mild diffuse disc bulging
               and hypertrophic osteophytes, changes which, in my opinion,
               are degenerative in nature and unrelated to the work-related
               injuries on May 30, 2014, and July 30, 2015.

               ***

               [I]t is my opinion the claimant has diffuse disc bulging at L4-
               5 with other degenerative changes.

               ***

               * * * [C]laimant does not require any work restrictions. In my
               opinion the allowed conditions have resolved and are not the
               basis for her current complaints.

       {¶ 18} 4. Relator's request for the additional allowance was heard before a district
hearing officer ("DHO") on April 28, 2016 and was granted based on the December 7,
2015 report of Dr. Kahkonen and the November 20, 2015 office note of Dr. Grisoni.
       {¶ 19} 5.   Vitas Healthcare's appeal was heard before a staff hearing officer
("SHO") on June 7, 2016. The SHO affirmed the prior DHO order and granted the
additional claim allowance based on the same medical evidence.
       {¶ 20} 6. Vitas Healthcare's appeal was refused by order of the commission mailed
June 29, 2016.
       {¶ 21} 7. Dr. Grisoni completed a C-9 request for the following surgical procedure:
"L4-L5 microdiscectomy and microdecompression."
       {¶ 22} 8. On December 8, 2016, Dr. Grisoni performed the following surgical
procedure on relator: "Microscopic dissection of the spine" and "Left L4 hemilaminotomy
including microdecompression and L5 nerve foraminotomy and facet cyst resection."
No. 18AP-152                                                                           9


      {¶ 23} The pre- and post-operative diagnoses were the same:
               PREOPERATIVE DIANOSES:
               [One] Left L4-5 facet cyst.
               [Two] Severe left lateral recess stenosis, L4-5.
               [Three] Left lower extremity L5 radiculopathy.

               POSTOPERATIVE DIAGNOSES:
               [One] Left L4-5 facet cyst.
               [Two] Severe left lateral recess stenosis, L4-5.
               [Three] Left lower extremity L5 radiculopathy.

      {¶ 24} 9. In October 2017, Vitas Healthcare filed a motion asking the commission
to exercise its continuing jurisdiction to vacate the allowance of L4-L5 disc herniation.
Vitas Healthcare attached the December 8, 2016 operative report as well as the
October 22, 2017 report of Michael J. Rozen, M.D. At the time Dr. Rozen examined
relator, he was asked to determine whether or not she was suffering from "[f]ailed back
surgery syndrome." In his report, Dr. Rozen noted that, following the surgery, an
infection set in and relator had undergone two additional surgical procedures and
continued to have significant back pain with pain shooting down her leg. Dr. Rozen
provided his physical findings on examination and identified the medical records which
he reviewed. Dr. Rozen concluded that relator did indeed have the condition of failed
back surgery syndrome; however, Dr. Rozen also found that the December 2016 surgery
was performed for non-work related conditions and, as such, should not be allowed in her
claim. Specifically, Dr. Rozen stated:
               To a reasonable degree of medical probability, Ms. Neitzelt's
               condition is related to the natural deterioration of a tissue, an
               organ or part of the body and is not related to the work
               incident, subject of this claim. The Neitzelt's initial surgery
               was performed for the non-work related conditions of left L4-
               5 facet cyst, severe left lateral recess stenosis L4-5 and left
               lower extremity L5 radiculopathy, the product of natural
               deterioration of a tissue, an organ or part of the body. She was
               not identified at time of surgery to have the condition of L4-5
               disc herniation and no surgery was performed on the L4-5
               intervertebral disc. Rather the surgery was performed for
               non-work related conditions the product of natural
No. 18AP-152                                                                            10


               deterioration of a tissue, organ or part of the body and any
               further treatment should be pursued through non-BWC
               funding resources.

(Emphasis omitted.)

      {¶ 25} 10. Vitas Healthcare's motion was heard before a DHO on December 11,
2017 and was granted.       Specifically, the DHO found there were new and changed
circumstances sufficient to warrant the exercise of the commission's continuing
jurisdiction. The DHO relied on the October 22, 2017 report of Dr. Rozen as well as the
operative report of Dr. Grisoni, and specifically disallowed relator's claim for L4-L5 disc
herniation.
      {¶ 26} 11. Relator's appeal was heard before an SHO on January 30, 2018. The
SHO affirmed the prior DHO's order and found that Vitas Healthcare had met its burden
to prove both new and changed circumstances and a clear mistake of fact sufficient to
warrant the exercise of the commission's continuing jurisdiction. Specifically, the SHO
order provides:
               According to the surgical record of Nicolas Grisoni, M.D. from
               the 12/08/2016 surgery, and according to the medical opinion
               report of Michael Rozen, M.D. dated 10/22/2017, the
               operation was for a microscopic dissection of the spine, left L4
               hemilaminectomy including microdecompression and L5
               nerve foraminotomy and facet cyst resection. Dr. Rozen
               stated:

               "In the body of the operative report there is no description of
               disc herniation. The surgery was directed toward posterior
               bony elements and thickened ligamentum flavum
               compressing the L5 nerve root in presence of a facet joint cyst.
               No existence of an L4-5 disc herniation is reported and no
               surgery was performed for an L4-5 disc herniation."

      {¶ 27} Within his report, Dr. Rozen also summarized:

               "She was not identified at the time of surgery to have the
               condition of L4-5 disc herniation and no surgery was
               performed on the L4-5 intervertebral disc."

               The Staff Hearing Officer finds that the above medical
               evidence presents new and changed circumstances that were
No. 18AP-152                                                                               11


               not reasonably discoverable at the time that the issue of L4-
               L5 disc herniation was adjudicated and also presents evidence
               of a clear mistake of fact regarding the presence of an L4-L5
               disc herniation. Consequently, based upon the operative
               report of Dr. Grisoni dated 12/08/2016 and the report of Dr.
               Rozen dated 10/22/2017, the Staff Hearing Officer finds that
               the Injured Worker did not have an L4-L5 disc herniation
               causally related to the Injured Worker's 07/30/2015
               industrial injury. Therefore, it is the order of the Staff Hearing
               Officer that the allowance of L4-L5 disc herniation is vacated
               and the condition L4-L5 DISC HERNIATION is
               DISALLOWED.

               The Staff Hearing Officer orders that the Injured Worker's
               11/06/2017 C-86 Motion is denied. The Staff Hearing Officer
               orders that the C-9 dated 09/22/2017 is denied. The Staff
               Hearing Officer finds that the medical service requested by
               the Injured Worker, permanent pain pump placement, is a
               medical service that is not reasonably related to and medically
               necessary for the treatment of the presently allowed
               conditions in this claim. The Staff Hearing Officer finds that
               the requested pain pump is for the condition failed back
               surgery syndrome which is denied by a separate order from a
               hearing on this date. This finding is based upon the
               10/22/2017 report of Dr. Rozen. The order of the District
               Hearing Officer is affirmed.

(Emphasis sic.)

       {¶ 28} 12.   Relator's appeal was refused by order of the commission mailed
February 23, 2018.
       {¶ 29} 13. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 30} For the reasons that follow, it is this magistrate's decision that the
commission did not abuse its discretion when it exercised its continuing jurisdiction and
this court should deny relator's request for a writ of mandamus.
       {¶ 31} 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
No. 18AP-152                                                                              12


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).
       {¶ 32} 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).
       {¶ 33} 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
No. 18AP-152                                                                            13


               (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. 4123.52to modify a prior order that is clearly
               a mistake of law.

Id. at 541.

       {¶ 34} As an initial matter, the commission argues that the commission orders
denied relator's right to participate in the workers' compensation fund for herniation at
L4-L5 and that she has an alternative remedy by way of filing an appeal to the common
pleas court pursuant to R.C. 4123.512. Citing the Supreme Court's decision in State ex
rel. Alhamarshah v. Indus. Comm., 142 Ohio St.3d 524, 2015-Ohio-1357, the commission
asserts that, because its exercise of jurisdiction resulted in a decision denying relator's
right to participate in the workers' compensation system, that decision was essential to
the ultimate determination that denied relator's participation in the workers'
compensation system, and is appealable pursuant to R.C. 4123.512.
       {¶ 35} Approximately one month after the commission filed its brief in this case,
the Supreme Court issued its decision in State ex rel. Belle Tire Distribs. v. Indus.
Comm.,         Ohio St.3d      , 2018-Ohio-2122. In that case, the court focused on the
differences between a mandamus claim and an R.C. 4123.512appeal and, without
overruling Alhamarshah, the court indicated that it was clarifying State ex rel.
Saunders v. Metal Container Corp., 52 Ohio St.3d 85 (1990), and found that Belle Tire
should have the opportunity to challenge the commission's decision to exercise
continuing jurisdiction in the court of appeals. As such, it appears that where, as here,
the complaint focuses exclusively on whether the commission abused its discretion when
it exercised its continuing jurisdiction in a particular case, that sole issue can be
challenged in the court of appeals in a mandamus action. Thereafter, depending on the
outcome here, either the commission's decision to exercise continuing jurisdiction will be
No. 18AP-152                                                                                14


upheld or it will not. As such, based on Belle Tire, the issue of whether the commission
abused its discretion when it exercised its continuing jurisdiction is before this court.
       {¶ 36} In exercising its continuing jurisdiction, the commission cited new and
changed circumstances as well as a clear mistake of fact. Thereafter, the commission cited
evidence demonstrating that, although relator's claim had been allowed for herniated disc
L4-L5, no such herniation existed. Relator does not argue that this could not constitute a
mistake of fact; instead, relator argues that there are no new and changing circumstances.
Specifically, relator points to the report of Dr. Griesser who opined that relator did not
have a disc herniation, and that her problems were degenerative in nature, and not caused
by the work-related injury. Based on this report, relator argues that Dr. Griesser's opinion
is the equivalent of the absence of finding of herniated disc that Dr. Grisoni made during
the operation. In other words, relator asserts this report showed there was no disc
herniation. The magistrate finds that they are not the same.
       {¶ 37} When the commission additionally allowed relator's claim for the herniated
disc, the commission had conflicting evidence before it. Relator's doctors explained how
she continued to have pain despite physical therapy and other treatment modalities.
Given the radiating pain, her doctors were 85 percent certain she had a herniated disc.
Although Dr. Griesser attributed relator's complaints to degenerative conditions, the
commission chose to find relator's physicians more persuasive, and allowed the claim.
       {¶ 38} When Dr. Grisoni operated on relator, it appears there was no evidence of a
disc herniation present. Although his C-9 indicated he would be performing an "L4-L5
microdiscectomy and microdecompression," his pre-op and post-op diagnosis did not
include a herniated disc and he did not perform that procedure. There is a significant
difference between what a doctor believes based on diagnostic tests and the patient's
complaints, and what he actually knows when he opens up the patient for surgery and can
see the actual issue before him. In the first, a doctor is certainly saying it is more likely
than not that something exists while, in the latter, a doctor can say conclusively that
something does or does not exist. When Vitas Healthcare filed the motion asking the
commission to exercise continuing jurisdiction and attached Dr. Grisoni's operative
report, counsel for relator could have asked Dr. Grisoni to author an addendum
addressing whether any herniation was present. Counsel did not do so. The magistrate
No. 18AP-152                                                                                15


finds the fact that Dr. Griesser opined that relator did not have a herniated disc, does not
mean that the absolute certainty of relator's condition was discoverable at the time the
commission allowed her claim. This is evidence that was not readily discoverable absent
surgery.
       {¶ 39} Finding that the commission did not abuse its discretion when it exercised
its continuing jurisdiction and denied relator's claim for disc herniation at L4-L5, it is this
magistrate's decision that this court should not issue 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).
