[Cite as State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm., 2019-Ohio-4948.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel.                                      :
Old Dominion Freight Line, Inc.,
                                                       :
                 Relator,
                                                       :
v.                                                                               No. 18AP-73
                                                       :
Industrial Commission of Ohio,                                            (REGULAR CALENDAR)
                                                       :
                 Respondent.
                                                       :



                                           D E C I S I O N

                                   Rendered on December 3, 2019


                 On brief: Eastman & Smith Ltd., Mark A. Shaw and
                 Kimberly S. Kondalski, for relator.

                 On brief: [Dave Yost], Attorney General, and Sherry M.
                 Phillips, for respondent.

                                    IN MANDAMUS
                        ON OBJECTION TO MAGISTRATE'S DECISION

BRUNNER, J.
        {¶ 1} Relator, Old Dominion Freight Line, Inc. ("Old Dominion"), seeks a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate
the July 29, 2017 order of its staff hearing officer ("SHO") denying Old Dominion's request
that the commission exercise its continuing jurisdiction based on new and changed
circumstances and ordering the commission to find that Old Dominion presented evidence
of new and changed circumstances to warrant vacating the 2010 commission order that
granted permanent total disability ("PTD") compensation to the claimant, Robert L.
Mason. For the following reasons, we deny Old Dominion's request.
No. 18AP-73                                                                             2


       {¶ 2} Old Dominion contends that new and changed circumstances have rendered
the 2010 order granting Mason PTD compensation "fatally defective" and that the 2010
order should be vacated. (Feb. 1, 2018 Compl. at ¶ 25-26.) Old Dominion alleges that the
commission's July 29, 2017 order that denied Old Dominion's motion requesting the
commission to exercise continuing jurisdiction under R.C. 4123.52 and to vacate the 2010
order based on new and changed circumstances—namely, the disallowance of a previously
allowed psychological condition—"is inadequately explained, unsupported by some
evidence, contrary to the law and facts, and is an abuse of discretion to the extent that
discretion is authorized." (Compl. at ¶ 27.)
       {¶ 3} In accord with Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate of this Court who issued on November 2,
2018 the attached decision, which included findings of fact and conclusions of law. As is
more fully stated in the decision, the magistrate found that the commission properly
determined there were no new and changed circumstances sufficient to justify its exercise
of continuing jurisdiction given the facts of this case. The magistrate thereby concluded
that the commission had acted within its discretion when it denied Old Dominion's request
that the commission exercise continuing jurisdiction under R.C. 4123.52 and that the
record contained some evidence in support of the commission's denial.            Thus, the
magistrate has recommended that we deny Old Dominion's request for a writ of
mandamus. We agree it is appropriate to do so and explain our reasons.
       {¶ 4} Old Dominion timely filed an objection to the magistrate's decision:
              The Magistrate erred in failing to find that new and changed
              circumstances exist which require the Commission to exercise
              its continuing jurisdiction under R.C. §4123.52, vacate the SHO
              order granting Mason's application for PTD compensation, and
              remand the application to the Commission for further hearing.

(Nov. 16, 2018 Old Dominion's Obj. at 1.)
       {¶ 5} The commission timely opposed Old Dominion's objection to the appellate
magistrate's decision, arguing that the decision was based on some evidence, and that the
magistrate had decided the matter correctly.
       {¶ 6} The issue presented to this Court is whether, under the facts of this matter,
the commission was required to grant Old Dominion's request to exercise continuing
jurisdiction. We find that the magistrate, in concluding that the answer to that question is
No. 18AP-73                                                                             3


no, applied the correct legal standard for determining as a matter of law the commission's
exercise of continuing jurisdiction. The magistrate cited R.C. 4123.52, which provides that
"[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." (App'x at ¶ 40.) The magistrate also cited State ex rel. B & C
Machine Co. v. Indus. Comm., 65 Ohio St.3d 538, 541-42 (1992), a decision rendered by
the Supreme Court of Ohio wherein it enunciated judicially carved circumstances under
which continuing jurisdiction may be exercised.
       {¶ 7} The magistrate in her decision then summarized the parties' opposing
positions as follows:
              The commission does not necessarily argue that new and
              changed circumstances did not exist, acknowledging that case
              law would support a finding that the subsequent allowance or
              disallowance of conditions can have an effect on prior orders.
              Instead, the commission argues that relator did not show new
              and changed circumstances that would warrant the
              commission invoking its continuing jurisdiction. Specifically,
              when the commission originally granted claimant PTD
              compensation, the commission relied on medical reports that
              found claimant independently disabled based separately on the
              physical conditions and the psychological conditions. The
              commission asserts that any change to the status of the
              psychological conditions, including the disallowance of the
              condition of PTSD, did not affect the validity of the original
              decision to award PTD compensation because that decision
              was still properly supported by medical evidence from
              physicians who considered only the allowed physical
              conditions and concluded that based on those allowed physical
              conditions alone, claimant was unable to return to any
              sustained remunerative employment.

              The question is whether the commission abused its discretion
              when it denied the request to invoke its continuing jurisdiction
              and whether the reason given for that decision is supported by
              some evidence. Even if the commission should have found that
              relator presented evidence of new and changed circumstances,
              that claimant's claim was specifically disallowed for the
              psychological condition PTSD, that fact does not support an
              order vacating the award of PTD compensation. As noted in
              the findings of fact, claimant presented medical evidence from
              physicians who considered only his allowed physical
No. 18AP-73                                                                           4


              conditions. Those physicians opined that he was unable to
              return to employment. Claimant also submitted medical
              evidence from physicians who considered only his allowed
              psychological conditions and those doctors likewise found that
              he was unable to return to work. As the commission asserts,
              the commission found claimant's allowed physical conditions
              independently rendered him unable to return to sustained
              remunerative employment. The subsequent disallowance of
              the psychological condition PTSD did not and would not
              change that fact. Inasmuch as no remedial action would clearly
              follow, the magistrate finds that the commission did not abuse
              its discretion here when it refused to exercise its continuing
              jurisdiction over the claimant's award of PTD compensation.

              Based on the forgoing, it is the magistrate's decision that relator
              has not demonstrated the commission abused its discretion
              when it declined to exercise its continuing jurisdiction over the
              award of PTD compensation to claimant, and this court should
              deny relator's request for a writ of mandamus.

(App'x at ¶ 42-44.)
       {¶ 8} Old Dominion's objection generally presents the same arguments it
presented in its original brief, which the magistrate addressed in her decision. However,
Old Dominion also takes exception to the medical reports the magistrate references in the
decision, stating:
              The fact that the Magistrate searched the record and found
              additional medical reports from "physicians who considered
              only … [Mason's] physical conditions" and who opined that he
              "was unable to return to employment" does not justify her
              failure to find that new and changed circumstances exist and
              that the exercise of continuing jurisdiction is both necessary
              and appropriate. Rather, it violates the well-settled rule of law
              set forth by the Ohio Supreme Court in Mitchell v. Robbins &
              Meyers, Inc. (1983), 6 Ohio St. 3d, 481, 483-484, * * * that the
              Court will "no longer search the commission's file for 'some
              evidence' to support an order of the commission not otherwise
              specified as a basis for the decision." Any such reports were not
              the basis of the SHO's holding that awarded Mason PTD
              compensation in this claim. Since the Commission did not base
              its PTD holding upon those unspecified reports, they may not
              be relied upon by the Magistrate here as an alternative basis to
              support the PTD order.

(Old Dominion's Obj. at 6-7.)
No. 18AP-73                                                                             5


       {¶ 9} We disagree with Old Dominion's characterization of the magistrate's review
of the record.   The magistrate references in her decision five medical reports: the
September 25, 2007 report of Mason's treating physician, Charles B. May, D.O. (App'x at
¶ 23); the January 28, 2008 report of Richard M. Ward, M.D. (App'x at ¶ 25); the October 7,
2009 report of William R. Fitz, M.D. (App'x at ¶ 26); the April 1, 2009 report of Lee
Howard, Ph.D. (App'x at ¶ 27); and the October 21, 2009 report of John M. Malinky, Ph.D.
(App'x at ¶ 28). The magistrate correctly states in her decision that each of these reports
was specifically identified in the SHO's 2010 order awarding PTD compensation. See App'x
at ¶ 29, 35. It is incorrect for Old Dominion to claim that the magistrate "searched the
record" to locate physician reports not identified in commission orders. (Old Dominion's
Obj. at 6.) Contrary to Old Dominion's claim, we find that the magistrate properly reviewed
the medical reports identified by the commission.
       {¶ 10} Additionally, the test for establishing a right to PTD compensation requires
the claimant to demonstrate that "an allowed condition independently caused the
disability." State ex rel. Bradley v. Indus. Comm., 77 Ohio St.3d 239, 242 (1997), citing
State ex rel. LTV Steel Co. v. Indus. Comm., 65 Ohio St.3d 22 (1992). We find that the
magistrate properly applied this standard when determining whether the alleged new and
changed circumstances were relevant to the commission's original decision awarding PTD
compensation to Mason.
       {¶ 11} Finally, we take note of the commission's discussion regarding the timeliness
of Old Dominion's current action to the PTD compensation award. In its memorandum in
opposition to Old Dominion's objection, the commission states:
              In reviewing the Magistrate's Decision, it is important to
              remember that continuing jurisdiction with the potential for
              destabilizing prior commission orders is reserved only for
              situations in which circumstances truly have changed since the
              award. State ex rel. Knapp v. Indus. Comm., 134 Ohio St.3d
              134, 2012-Ohio-5379, 890 N.E.2d 987. The commission is also
              limited to a "reasonable period of time" in which to exercise its
              inherent power of continuing jurisdiction. State ex rel. Gatlin
              v. Yellow Freight System, Inc., 18 Ohio St.3d 246, 480 N.E.2d
              487 (1985). In this case, the course of the administrative and
              litigation process was irrevocably altered by Mason's death,
              which obviously impacted the evidence available to defend
              against Old Dominion's appeal of the administratively allowed
              psychological condition, i.e., post-traumatic stress disorder
No. 18AP-73                                                                             6


              ("PTSD"). Old Dominion prevailed in its R.C. 4123.512 appeal
              of the allowance of that condition to the Franklin County Court
              of Common Pleas in Case No. 10CV010944 (the "PTSD Case")
              only after the evidence available at trial was stripped of crucial
              testimony – [Mason] was deceased and thus Old Dominion's
              Motion for Summary Judgment was unopposed. (Stipulation
              of Evidence at 814-815, 840 "S. ___"). Old Dominion's
              mandamus action seeks to overturn a disability order issued on
              March 31, 2010, and to reverse nearly a decade of disability
              payments made to Mason. Clearly, Old Dominion's request
              stretches the limits of the commission's "reasonable period of
              time" to exercise its continuing jurisdiction. However, both the
              commission and the Magistrate considered Old Dominion's
              request based on its merits despite the significant delay in the
              proceedings.

(Commission's Memo. in Opp. at 2-3.) We agree.
       {¶ 12} On review of the magistrate's decision, an independent review of the record,
and due consideration of Old Dominion's objection, we find the magistrate has properly
stated the pertinent facts and applied the appropriate law to the facts of this matter. We
therefore overrule Old Dominion's objection to the magistrate's decision and adopt the
decision as our own, including the findings of facts and conclusions of law contained in the
magistrate's decision. Accordingly, we deny the requested writ of mandamus.
                                                                        Objection overruled;
                                                     petition for writ of mandamus denied.

                 LUPER SCHUSTER and BEATTY BLUNT, JJ., concur.
No. 18AP-73                                                                           7


                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT



The State ex rel.                           :
Old Dominion Freight Line, Inc.,
                                            :
              Relator,
                                            :
v.                                                               No. 18AP-73
                                            :
Industrial Commission of Ohio,                             (REGULAR CALENDAR)
                                            :
              Respondent.
                                            :



                         MAGISTRATE'S DECISION

                            Rendered on November 2, 2018



              Eastman & Smith LTD, Mark A. Shaw, and Kimberly S.
              Kondalski, for relator.

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


                                    IN MANDAMUS

      {¶ 13} Relator, Old Dominion Freight Line, Inc., has filed 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 refused
to exercise its continuing jurisdiction, and ordering the commission to find that relator
presented evidence of new and changed circumstances to warrant vacating the order which
granted permanent total disability ("PTD") compensation to Robert L. Mason ("claimant").
No. 18AP-73                                                                              8


Findings of Fact:
        {¶ 14} 1. Claimant sustained a work-related injury on January 18, 2005 when he
slipped on ice and fell to the ground, landing on his left hip. Initially, claimant was
diagnosed with left femoral neck fracture and left intertrochanteric femur fracture.
        {¶ 15} 2. On January 21, 2005, claimant underwent surgery consisting of an open
reduction, internal fixation of his left proximal femur.
        {¶ 16} 3. Shortly thereafter, relator certified claimant's claim for hip fracture and
left intertrochanteric femur fracture and left femoral neck fracture.
        {¶ 17} 4. Claimant filed his first application for PTD compensation on April 26,
2006.
        {¶ 18} 5. Following a hearing before a staff hearing officer ("SHO") on February 28,
2007, claimant's application was denied. The SHO found that claimant retained the
physical and intellectual abilities to engage in sustained remunerative employment at a
sedentary level.
        {¶ 19} 6. Following a hearing before a district hearing officer ("DHO") on
August 22, 2007, claimant's claim was additionally allowed for depressive disorder, left
short leg syndrome, and lumbar strain.
        {¶ 20} 7. The order of the DHO was affirmed and the commission refused relator's
further appeal.
        {¶ 21} 8. Following a hearing before a DHO on August 6, 2008, claimant's claim
was additionally allowed for post-traumatic stress disorder ("PTSD").
        {¶ 22} 9. The additional allowance of PTSD was affirmed and relator ultimately
appealed the additional allowance to the common pleas court.
        {¶ 23} 10. Claimant filed his second application for PTD compensation on July 22,
2009. In support of his application, claimant submitted the September 25, 2007 report of
his treating physician, Charles B. May, D.O., who opined as follows:
               Based upon the allowed conditions in this claim other than the
               psychiatric condition of depressive disorder for which I have
               not evaluated or treated Mr. Mason, it is my medical opinion
               that Mr. Mason will not be able to return to his previous
               employment as a truck driver on a permanent basis as a direct
               and proximate result of the allowed physical conditions in this
               claim. Furthermore, it is my medical opinion that Mr. Robert
               Mason is, in fact, permanently and totally disabled from any
No. 18AP-73                                                                          9


                form of substantial gainful employment as a direct and
                proximate result of the allowed physical conditions in this
                claim. I have completed the physical capacity form that you
                have enclosed as well as the physician statement of permanent
                and total disability as you have requested.

          {¶ 24} Claimant also submitted the July 22, 2009 report of Dr. May, wherein he
stated:
                Pursuant to your request, I did have the opportunity to review
                my medical file on Robert Mason for the purpose of disability
                evaluation. In regards to the above-captioned claim, I will
                state at this time that I have taken care of Mr. Mason since
                03/13/2007 in regards to his claim. He was last examined in
                this office on 06/08/2009. Although his claim allowances
                refer to bilateral femoral neck fracture, according to Mr.
                Mason and according to my examinations and review of
                records, only the left side was fractured. I have only evaluated
                the left hip and will not be referring to any problem or
                problems with the right hip over if they do exist in regards to
                my determination or recommendation for disability.

                Also, as I have stated above, Mr. Mason has a psychological
                allowance in this claim, i.e. depressive disorder and I am not
                considering any impairment or disability that [] allowance
                may cause. I refer you to my previous medical reports which
                summarize my evaluation and treatments of Mr. Mason.

                Based upon my past and current evaluations of Mr. Mason, it
                is my medical opinion that Robert L. Mason is unable to
                return to his previous employment as a truck driver on a
                permanent basis as a direct and proximate result of the
                allowed physical condition in this claim. Furthermore, it is my
                medical opinion that Robert L. Mason is permanently and
                totally disabled from any form of substantial gainful
                employment as a direct and proximate result of the allowed
                physical conditions in this claim. I have completed a Physical
                Functional Capacity Assessment Form that you enclosed and
                I have completed a Statement of Physician that you have
                enclosed.

          {¶ 25} 11. The record also contains the January 28, 2008 report of Richard M.
Ward, M.D., who concluded that claimant was unable to return to work, stating:
                I saw Robert Mason in the office today at your request for the
                purpose of a disability evaluation. He is now 68 years old.
No. 18AP-73                                                                           10


              By history, on 1/18/05 he was working as a truck driver and
              slipped and fell on some ice in the truck yard and fractured his
              left hip. He had to have a surgical procedure done that did not
              help him. He has never been able to return to work. He
              continues to have severe pain in his left hip and this pain
              requires the full time use of a four prong cane to assist
              ambulation. He also has severe pain in his lower back with
              muscle spasms and stiffness. His low back symptoms are
              aggravated by bending, lifting and twisting. He has a difficult
              time with sitting. He is followed by a doctor with medication.
              He denies ever having had problems with his left hip or lower
              back prior to the incident that occurred as described on
              1/18/05.

              He is 6'3" tall, weighs 290lbs and is left handed. On
              examination he walks in a forward crouch using a cane in his
              right hand. He has a marked limp. When he gets up from a
              seated position he has to push himself up because of the pain
              in his lower back. He has involuntary muscle spasms with
              marked loss of lumbar spine motion. He lacks 10 degrees of
              normal extension, he has 20 degrees of forward flexion, 10
              degrees of right lateral tilt and 10 degrees of left lateral tilt. He
              has a surgical scar from the surgery to treat the fractured left
              hip. He has essentially no hip motion and has severe pain.

              As a result of the history and my examination, I believe he was
              injured as described on 1/18/05. As a direct result of that
              injury he has the allowances of hip fracture, left
              intertrochanteric femur fracture, left femoral neck fracture,
              depressive disorder, left short leg syndrome and lumbar
              strain. Considering only the physical allowances and not the
              psychiatric allowance, the significance is that the surgical
              treatment of his fractured left hip was a failure and he
              continues to have severe pain in the left hip with almost no
              hip motion and he requires the full time use of a four prong
              cane to assist ambulation. He has pain across his lower back
              with involuntary muscle spasms and loss of back motion.
              Taking into account the specific physical allowances from the
              injury on 1/18/05 and my physical findings, it is my opinion
              based upon a reasonable medical probability that as a direct
              result of the physical allowances from the injury on 1/18/05
              he is not able to return to substantial gainful employment. No
              combination of sit-stand-walk option that would add up to
              an 8 hour work day for him. He also has severe postural
              limitations. He cannot use his legs to operate foot controls. He
              has severe lifting and carrying limitations and he has to use a
              cane at all times to assist in ambulation. I did fill out a physical
No. 18AP-73                                                                            11


              capacity evaluation to the best of my ability, again, taking into
              account the specific physical allowances from the injury that
              occurred on 1/18/05. To reiterate based upon all of the above,
              it is my opinion that as a direct result of the physical
              allowances from the injury that occurred on 1/18/05, he is not
              capable of returning to substantial gainful employment and
              should for this reason be granted permanent total disability.
              This opinion is certainly based upon a reasonable medical
              probability.

       {¶ 26} 12. An independent medical examination was performed by William R. Fitz,
M.D. In his October 7, 2009 report, Dr. Fitz identified the medical records which he
reviewed, provided his physical findings on examination, concluded that claimant had
reached maximum medical improvement ("MMI") for the diagnoses of hip fracture, left
intertrochanteric femur fracture, left femoral neck fracture, left short leg syndrome, and
lumbar strain. Dr. Fitz opined that claimant had a 37 percent whole body impairment and
that he was incapable of working. Dr. Fitz specifically indicated that he was not provided
an impairment rating for the allowed conditions of depressive disorder or PTSD.
       {¶ 27} 13. Claimant also submitted evidence that his allowed psychological
conditions rendered him incapable of working. Specifically, claimant submitted the April 1,
2008 report of Lee Howard, Ph.D., who opined that claimant was permanently and totally
disabled as a result of his depressive disorder.
       {¶ 28} An independent medical evaluation was performed by John M. Malinky,
Ph.D., who issued a report dated October 21, 2009. Dr. Malinky concluded: "Based solely
on impairment resulting from the allowed mental and behavioral condition(s) in this claim
within my specialty, and with no consideration of the Injured Worker's age, education, or
work training," claimant was incapable of working.
       {¶ 29} 14. Claimant's application was heard before an SHO on March 16, 2010 and
was granted. The SHO order provides:
              After full consideration of the issue it is the order of the Staff
              Hearing Officer that the Injured Worker's IC-2 Application for
              Permanent Total Disability Compensation is granted.
              Permanent total disability compensation is awarded from
              09/25/2007 (less any compensation that previously may have
              been awarded over the same period), and to continue without
              suspension unless future facts or circumstances should
No. 18AP-73                                                                      12


              warrant the stopping of the ward. Such payments are to be
              made in accordance with R.C. 4123.58(A).

              Permanent and total disability compensation is awarded from
              09/25/2007 for the reason that this is the date of Dr. May's
              report supporting the award.

              It is the finding of the Staff Hearing Officer that the Injured
              Worker is permanently and totally disabled as the result of the
              medical effects of his allowed physical and psychological
              injuries. The Injured Worker has been prevented from
              returning to any form of sustained remunerative employment
              as a consequence of each of these two categories of medical
              condition. Such a finding mandates an award of permanent
              total disability compensation without further consideration of
              the "[State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d
              167 (1987)]" factors. In reaching this conclusion, the Staff
              Hearing Officer relies upon the independent medical
              examinations and evaluations performed at the direct of the
              Industrial Commission: William R. Fitz, M.D., who examined
              with respects to the allowed physical injuries, and John M.
              Malinky, Ph.D., who examined with respects to the allowed
              psychological conditions. In evaluating the credibility of these
              reports, the Staff Hearing Officer particularly notes the
              01/28/2008 report of Dr. Ward, the two reports of Dr. May of
              09/25/2007 and 09/26/2007, and the 07/07/2009 report of
              Dr. Howard. The Staff Hearing Officer further particularly
              notes that the Injured Worker has a claim which is allowed for
              a very serious left hip fracture, and also for psychological
              conditions, notably post traumatic stress disorder, together
              with some physical conditions related to the allowed hip
              fracture.

              The Staff Hearing Officer has considered the prior denial of a
              permanent and total application in early 2007, the medical
              submitted on behalf of the Employer, and the Employer's
              arguments with respect to the sufficiency of the evidence
              submitted in support of the application. Specifically, the Staff
              Hearing Officer has considered the Employer's argument that
              the Injured Worker suffers from multiple unallowed medical
              conditions which have been improperly evaluated by the
              medical evidence in support of the application, and has
              further considered the Employer's arguments with respect to
              alleged inconsistency in these reports.

              It is plain that the Injured Worker does suffer from medical
              conditions over and above his allowed injuries. In particular,
No. 18AP-73                                                                          13


              the Injured Worker has multi-level spondylosis in the lower
              back, which may impact the Injured Worker's loss of function
              in the lower back, when consideration is being properly given
              to his allowed lumbar strain. In light of the fact that the
              medical professionals specifically state that they are
              considering only allowed conditions, there is no direct
              evidence of any improper consideration of these unallowed
              conditions affecting the same body part.

              The Employer further argues that the reports of Drs. Howard
              and May improperly consider the Injured Worker's age,
              education, work experience, and similar disability factors in
              reaching their conclusions. Reading the reports in context,
              they are plainly stating that the Injured Worker has lost the
              ability to engage in any form of sustained remunerative
              employment. Further, an error in one of Dr. May's reports
              which appears to state he is considering a right hip fracture, is
              plainly merely a clerical error as there is no evidence the
              Injured Worker ever had a right hip fracture. Finally, the
              argument that the physical evidence supports the conclusion
              that the Injured Worker could engage, on a physical basis, in
              part-time sedentary work is not supported by the reports
              cited. This is an inference drawn argumentatively, but not
              stated by the reports under consideration.

              In light of the fact that the independent examinations both
              conclude that the Injured Worker is unable to engage in
              sustained remunerative employment, solely as the result of
              the allowed conditions, the weight of the evidence strongly
              supports the conclusion that the physical and psychological
              conditions taken together do so. Consequently, an award of
              permanent total disability compensation is made.

      {¶ 30} 15. As the SHO noted, PTD compensation was awarded beginning
September 25, 2007, the date of Dr. May's report supporting the award. Relator's request
for reconsideration was denied by order of the commission mailed May 20, 2010.
      {¶ 31} 16. Relator filed a mandamus action which this court denied.
      {¶ 32} 17. In the meantime, relator's appeal of the allowance of PTSD proceeded
slowly because claimant was in poor health.
      {¶ 33} 18. Following claimant's death due to non-occupational health conditions,
the trial court granted relator's motion for summary judgment and found that claimant was
No. 18AP-73                                                                          14


not entitled to participate in the Ohio Workers' Compensation Fund for the psychological
condition of PTSD.
      {¶ 34} 19. After the condition PTSD was disallowed, relator filed a motion asking
the commission to invoke its continuing jurisdiction to vacate the SHO order which granted
claimant's application for PTD compensation based on new and changed circumstances.
      {¶ 35} 20. Following the hearing before an SHO on July 7, 2017, the commission
found there was no legal basis on which to vacate the SHO order which awarded PTD
compensation commencing September 25, 2007 finding that the hearing officer who
granted PTD compensation had found that the allowed physical conditions were
independently disabling. Specifically, the SHO order provides:
              Permanent total disability compensation was granted based
              on both the allowed physical conditions and the allowed
              psychological conditions.

              Counsel for the Employer has argued that continuing
              jurisdiction is properly invoked under R.C. 4123.52 on the
              basis of new and changed circumstances. Specifically, counsel
              refers to the finding that, following issuance of the
              03/16/2010 permanent total disability award order, the
              Franklin County Court of Common Pleas issued an order
              disallowing the claim for "post traumatic stress disorder." The
              other psychological allowance of "depressive disorder,
              however, remained part of the claim as it is today. Citing the
              case of State ex rel. Fields v. Indus. Comm. (1993), 66 Ohio
              St.3d 339, which held that the Industrial Commission is not
              permitted to "base an award of permanent total disability on
              non-allowed medical conditions, in whole or in part," counsel
              argues that all permanent total disability compensation
              awarded since 09/25/2007 is properly vacated based upon
              new and changed circumstances.

              The Staff Hearing Officer is not persuaded by the Employer's
              argument.

              It is clear from the face of the permanent total disability order
              of 03/16/2010 that the Staff Hearing Officer found that the
              allowed physical conditions were independently disabling.
              The 03/16/2010 Staff Hearing Officer order stated: "The
              Injured Worker has been prevented from returning to any
              form of sustained remunerative employment as a
              consequence of each of these two categories of medical
              condition." (Emphasis added.) The Staff Hearing Officer
No. 18AP-73                                                                                15


              order relied upon the reports from William R. Fitz, M.D.
              (dated 10/07/2009) and Charles May, D.O. (dated
              09/25/2007 and 09/26/2007) in finding that the allowed
              physical conditions were permanently and totally disabling.

              As such, the Staff Hearing Officer concludes that the
              subsequent denial of a previously allowed psychological
              condition will not affect the award of permanent total
              disability compensation because of the independently
              disabling nature of the [] allowed physical conditions.

(Emphasis sic.)

       {¶ 36} 21. Relator's request for reconsideration was denied by order of the
commission mailed August 31, 2017.
       {¶ 37} 22. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 38} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 39} 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).
       {¶ 40} 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.
No. 18AP-73                                                                           16


              of Edn. v. Johnston (1979), 58 Ohio St.2d 132, 12 O.O.3d 128,
              388 N.E.2d 1383 (just cause for modification of a prior order
              includes new and changed conditions); State ex rel. Weimer
              v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16 O.O.3d 174,
              404 N.E.2d 149 (continuing jurisdiction exists when prior
              order is clearly a mistake of fact); State ex rel. Kilgore v.
              Indus. Comm. (1930), 123 Ohio St. 164, 9 Ohio Law Abs. 62,
              174 N.E. 345 (commission has continuing jurisdiction in cases
              involving fraud); State ex rel. Manns v. Indus. Comm. (1988),
              39 Ohio St.3d 188, 529 N.E.2d 1379 (an error by an inferior
              tribunal is a sufficient reason to invoke continuing
              jurisdiction); and State ex rel. Saunders v. Metal Container
              Corp. (1990), 52 Ohio St.3d 85, 86, 556 N.E.2d 168, 170
              (mistake must be "sufficient to invoke the continuing
              jurisdiction provisions of R.C. 4123.52"). Today, we expand
              the list set forth above and hold that the Industrial
              Commission has the authority pursuant to R.C. 4123.52 to
              modify a prior order that is clearly a mistake of law.

Id. at 541.

       {¶ 41} Relator begins its argument by asserting that the disallowance of claimant's
workers' compensation claim for the psychological condition of PTSD clearly amounted to
new and changed circumstances. Relator asserts the commission was required to find new
and changed circumstances existed and then, having found so, vacate the prior SHO order
awarding PTD compensation, and hold a new hearing to consider whether or not claimant
was entitled to an award of PTD compensation.
       {¶ 42} The commission does not necessarily argue that new and changed
circumstances did not exist, acknowledging that case law would support a finding that the
subsequent allowance or disallowance of conditions can have an effect on prior orders.
Instead, the commission argues that relator did not show new and changed circumstances
that would warrant the commission invoking its continuing jurisdiction. Specifically, when
the commission originally granted claimant PTD compensation, the commission relied on
medical reports that found claimant independently disabled based separately on the
physical conditions and the psychological conditions. The commission asserts that any
change to the status of the psychological conditions, including the disallowance of the
condition of PTSD, did not affect the validity of the original decision to award PTD
compensation because that decision was still properly supported by medical evidence from
No. 18AP-73                                                                            17


physicians who considered only the allowed physical conditions and concluded that based
on those allowed physical conditions alone, claimant was unable to return to any sustained
remunerative employment.
      {¶ 43} The question is whether the commission abused its discretion when it denied
the request to invoke its continuing jurisdiction and whether the reason given for that
decision is supported by some evidence. Even if the commission should have found that
relator presented evidence of new and changed circumstances, that claimant's claim was
specifically disallowed for the psychological condition PTSD, that fact does not support an
order vacating the award of PTD compensation. As noted in the findings of fact, claimant
presented medical evidence from physicians who considered only his allowed physical
conditions.   Those physicians opined that he was unable to return to employment.
Claimant also submitted medical evidence from physicians who considered only his
allowed psychological conditions and those doctors likewise found that he was unable to
return to work. As the commission asserts, the commission found claimant's allowed
physical conditions independently rendered him unable to return to sustained
remunerative employment. The subsequent disallowance of the psychological condition
PTSD did not and would not change that fact. Inasmuch as no remedial action would
clearly follow, the magistrate finds that the commission did not abuse its discretion here
when it refused to exercise its continuing jurisdiction over the claimant's award of PTD
compensation.
      {¶ 44} Based on the forgoing, it is the magistrate's decision that relator has not
demonstrated the commission abused its discretion when it declined to exercise its
continuing jurisdiction over the award of PTD compensation to claimant, and this court
should deny relator's request for a writ of mandamus.




                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA


                              NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
No. 18AP-73                                                                        18


              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).
