[Cite as State ex rel. Kent State Univ. v. Indus. Comm., 2016-Ohio-1032.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Kent State University,            :

                 Relator,                               :

v.                                                      :                      No. 15AP-416

Industrial Commission of Ohio,                          :                   (REGULAR CALENDAR)
John Daugintis, and Eagle Pump &
Equipment, Inc.,                                        :

                 Respondents.                           :


                                            D E C I S I O N

                                      Rendered on March 15, 2016


                 On brief: Amer Cunningham Co. LPA, and Thomas M.
                 Saxer, for relator.

                 On brief: Michael DeWine, Attorney General, and Shaun P.
                 Omen, for respondent Industrial Commission of Ohio.

                 On brief: Nager, Romaine & Schneiberg Co. LPA, Jerald A.
                 Schneiberg, Jennifer L. Lawther, Daniel A. Kirschner, and
                 Stacey M. Callen, for respondent John A. Daugintis.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.
        {¶ 1} Kent State University ("Kent State") filed this action in mandamus seeking a
writ to compel the Industrial Commission of Ohio ("commission") to vacate its order
awarding permanent total disability ("PTD") to John Daugintis.
        {¶ 2} In accordance with Loc.R. 13(M), the case was referred to a magistrate to
conduct proceedings. The parties stipulated the pertinent evidence and filed briefs. The
magistrate then issued a magistrate's decision, which contains findings of fact and
No. 15AP-416                                                                              2

conclusions of law. The magistrate's decision includes a recommendation that we deny
the request for a writ.
       {¶ 3} Counsel for Kent State has filed objections to the magistrate's decision,
which are:
              A. The Magistrate's Decision effectively places the burden of
              proof on Relator to prove Claimant is not permanently and
              totally disabled in violation of Ohio Administrative Code
              §4121-3-34(D)(3)(a).

              B. There was competent medical evidence presented that
              Claimant is not permanently and totally disabled from his
              allowed physical conditions.

       {¶ 4} At this stage of the proceedings we, as an appellate court, are not dealing
with burden of proof issues. We are instead evaluating whether or not some evidence
supports the decision of the commission to award PTD compensation. The commission
has already done the weighing and has determined that an award of PTD compensation is
appropriate given the injuries suffered by Daugintis and the application of the disability
factors.
       {¶ 5} The first objection, labeled "A," is overruled.
       {¶ 6} The second objection is likewise without merit. The issue at this stage of the
proceedings is not whether competent credible evidence would have supported a different
outcome of the proceedings before the commission, but whether some evidence supported
the award of PTD compensation. Some evidence clearly did support the award.
       {¶ 7} The second objection, labeled "B," is overruled.
       {¶ 8} Both objections having been overruled, we adopt the findings of fact and
conclusions of law in the magistrate's decision. As a result, we deny the request for a writ
of mandamus.
                                                                     Objections overruled;
                                                                writ of mandamus denied.

                          BROWN and LUPER SCHUSTER, JJ., concur.
                                 _________________
No. 15AP-416                                                                             3

                                    APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel. Kent State University,   :

              Relator,                         :

v.                                             :                  No. 15AP-416

Industrial Commission of Ohio,                 :             (REGULAR CALENDAR)
John Daugintis, and Eagle Pump &
Equipment, Inc.,                               :

              Respondents.                     :


                         MAGISTRATE'S DECISION

                             Rendered on December 21, 2015


              Amer Cunningham Co. LPA, and Thomas M. Saxer, for
              relator.

              Michael DeWine, Attorney General, and Shaun P. Omen, for
              respondent Industrial Commission of Ohio.

              Nager, Romaine & Schneiberg Co LPA, Jerald A.
              Schneiberg, Jennifer L. Lawther, and Daniel A. Kirschner,
              for respondent John A. Daugintis.


                                      IN MANDAMUS

       {¶ 9} In this original action, relator, Kent State University ("Kent State" or
"relator"), requests a writ of mandamus ordering respondent, Industrial Commission of
Ohio ("commission"), to vacate the January 29, 2015 order of the commission that
exercised R.C. 4123.52 continuing jurisdiction over the October 20, 2014 order of its staff
hearing officer ("SHO") that had denied the application for permanent total disability
No. 15AP-416                                                                            4

("PTD") compensation filed by respondent, John Daugintis, and to enter an order
reinstating the October 20, 2014 SHO's order.
Findings of Fact:
      {¶ 10} 1. John Daugintis ("claimant") has two industrial claims corresponding to
injuries that occurred in 1996 and 2006.
      {¶ 11} 2. On June 27, 1996, claimant injured his right shoulder, left foot, and left
elbow while employed as a shop manager for respondent, Eagle Pump & Equipment,
Inc., a state-fund employer. The industrial claim (No. 96-417416) is allowed for:
             Contusion right shoulder; sprain of left foot; right shoulder
             tendonitis; tear right rotator cuff; localized, primary
             osteoarthritis, right shoulder; lateral epicondylitis left elbow
             epicondyle.

      {¶ 12} 3. On June 5, 2006, claimant injured his left shoulder while employed as a
laborer for Kent State. The industrial claim (No. 06-386334) is allowed for:
             Subscapularis tear left shoulder; left shoulder impingement
             synovitis; supraspinatus tendonitis left shoulder; bicipital
             tenosynovitis, left; depressive psychosis/moderate.

      {¶ 13} 4. On July 31, 2013, at claimant's request, he was examined by
psychologist Raymond D. Richetta, Ph.D. In his five-page narrative report, Dr. Richetta
opined:
             Mr. Daugintis struggles to cope with daily life. He is negative,
             disinterested, and poorly motivated. These qualities are all
             symptoms of the allowed depression. He has little social
             interest and is not comfortable with the general public. His
             concentration is limited. He would be unable to relate to co-
             workers or supervisors. He could not remember and follow
             more than very simple instructions. His sleep problems
             preclude his maintaining a regular schedule; he could not be
             at work at a consistent time. He would be unable to tolerate
             vocational rehabilitation. Mr. Daugintis is permanently end
             totally disabled from engaging in any form of sustained
             remunerative employment due to the allowed Major
             Depressive Disorder, Single Episode, Moderate.

      {¶ 14} 5. On January 28, 2014, claimant filed an application for PTD
compensation. In support, claimant submitted the report of Dr. Richetta.
No. 15AP-416                                                                             5

      {¶ 15} 6. The PTD application form asks the applicant to list his or her industrial
claims. In response, claimant listed the claim numbers for his 1996 and 2006 claims.
      {¶ 16} 7. On March 19, 2014, at the request of Kent State, claimant was examined
by Douglas C. Gula, D.O. Dr. Gula examined only for the allowed physical conditions of
the 2006 claim. In his seven-page report, Dr. Gula opined:
              In summary, it is my opinion Mr. Daugintis is not
              permanently and totally disabled as he would be capable of
              working in some capacity. In addition, on examination today
              the claimant was able to think, speak and communicate
              clearly indicating cognitively he could work in some capacity.

              This information is based upon review of the medical records
              and independent medical examination performed.

       {¶ 17} 8. Earlier, on March 15, 2014, at the request of Kent State, claimant was
examined by psychologist Mark Querry, Ph.D., who examined only for the allowed
psychological condition of the 2006 claim. In his seven-page narrative report, Dr.
Querry opines:
              Overall, the percentage of whole person impairment based
              on the allowed psychological condition in this claim from a
              purely psychological point of view is 4 (four) %, far from
              being permanently and totally disabled from a psychological
              point of view.

       {¶ 18} 9. On May 2, 2014, at the commission's request, claimant was examined
by psychologist James M. Lyall, Ph.D.       In his six-page narrative report, Dr. Lyall
reviewed four functional areas: (1) activities of daily living, (2) social functioning, (3)
concentration, persistence, and pace, and (4) adaptation to stress.
              In his narrative report, under "Discussion," Dr. Lyall opined:
              Utilizing the AMA Guidelines for Impairment Due To Mental
              and Behavioral Disorders, Second and Fifth Edition we see
              mild impairment in all functional areas, due to the claimant's
              depressive symptoms. This, of course, takes into account
              some exaggeration seen on the SIMS profile. This mild
              impairment would fall at Class 2 and yield fifteen percent
              (15%) impairment due exclusively to the psychological
              condition to the whole body.
No. 15AP-416                                                                            6

      {¶ 19} 10. On     a   commission     form    captioned    "Occupational     Activity
Assessment[,] Mental & Behavioral Examination," Dr. Lyall indicated by his mark that
he agreed with the following pre-printed statement: "This Injured Worker is capable of
work with the limitation(s) / modification(s) noted below."
      {¶ 20} In the space provided, Dr. Lyall wrote in his own hand:
             The claimant's impairment is mild at 15% for his depression
             disorder. This level, in and of itself, would not inhibit a
             return to work. He should avoid hi[gh] stress, hi[gh] pace
             jobs.

      {¶ 21} 11. On May 5, 2014, at the commission's request, claimant was examined
by orthopedic surgeon Sheldon Kaffen, M.D. Dr. Kaffen examined for all the allowed
physical conditions of both industrial claims.
      {¶ 22} In his eight-page narrative report, Dr. Kaffen opines:
             It is my medical opinion based on the history, physical
             examination and review of the medical documentation that
             Mr. Daugintis is capable of sedentary work activity with the
             further limitations of no activities requiring any repetitive
             motion of the shoulders, lifting more than 5 pounds with
             either upper extremity, no use of the [sic] both shoulders
             above chest level.

      {¶ 23} 12. On a "Physical Strength Rating" form dated May 5, 2014, Dr. Kaffen
indicated by his mark that claimant is capable of "SEDENTARY WORK."
      {¶ 24} 13. At claimant's request, vocational expert Mark A. Anderson prepared a
five-page narrative report dated July 6, 2014.      In his report, Anderson concluded
"[t]here would be no transferable skills developed from any of his past work activities to
the sedentary level of exertion." Anderson also noted that claimant had been "away
from [the] competitive work force (6 years)." Anderson concluded:
             The Vocational Diagnosis and Assessment of Residual
             Employability confirms that Mr. Daugintis is not employable
             in the local, state or national economies. Based on his
             physical and emotional limitations and age, Mr. Daugintis is
             not a feasible candidate for vocational rehabilitation.

      {¶ 25} 14. At Kent State's request, vocational expert Howard L. Caston, Ph.D.,
prepared a 15-page report dated July 8, 2014. In his report, Dr. Caston opines:
No. 15AP-416                                                                          7

             [A]fter an analysis of all of the available medical and
             vocational information that has been reviewed and identified
             in this report, it is my opinion based on a reasonable degree
             of vocational certainty that Mr. Daugintis is capable of
             engaging in employment. It is my opinion to a reasonable
             degree of vocational certainty that based on the effects of the
             allowed claim Mr. Daugintis is capable of performing jobs
             that include building maintenance and repair and other less
             strenuous jobs such as telemarketing, call center customer
             service representative, modified cashiering and other similar
             jobs within the functional capacities outlined by the
             independent examiners.

      {¶ 26} 15. Following an October 20, 2014 hearing, an SHO mailed an order on
October 28, 2014 denying the PTD application.
      {¶ 27} The SHO's order of October 20, 2014 states reliance upon the reports of
Drs. Gula, Querry, Lyall, and Caston. Following a lengthy discussion of each report, the
SHO's order concludes with a discussion of the non-medical disability factors. In that
regard, the SHO's order states:
             Based on the fact that the Injured Worker cannot be deemed
             permanent and totally disabled based solely on the allowed
             physical and psychological conditions in this claim, a
             discussion of the Injured Worker's non-medical disability
             factors is in order.

             The Hearing Officer finds that the Injured Worker's age is 61,
             which places him approximately four years from the normal
             retirement age of 65. The Hearing Officer finds that the
             Injured Worker's age is a neutral factor and him obtaining
             entry-level positions [sic].

             The Hearing Officer further finds that the Injured Worker's
             education consisted of graduation from high school with no
             other schooling or training. The Injured Worker testified at
             hearing that he can read, write and do some math, and as far
             as his occupation is concerned, he worked in the
             maintenance departments at a hospital, for a pump
             company, and also worked in maintenance at the Kent State
             University.

             The Hearing Officer finds that the Injured Worker did not
             supervise anyone at his jobs and that as indicated, he did not
             have any other occupations. The Hearing Officer finds that
             the Injured Worker's job duties are to be a negative factor in
No. 15AP-416                                                                       8

             that he was involved in heavy duty maintenance work and
             that he did not have any clerical duties. Based on Dr.
             Caston's report, the Injured Worker has the opportunity to
             be in maintenance, facility maintenance technician, a
             maintenance supervisor, or an Outbound Call Center.

             Based on the medical documentation in file from Dr. Gula,
             examining the Injured Worker on the allowed physical
             conditions, the report of Mark Querry, Ph.D., and the report
             of James Lyall, Ph.D., examining the Injured Worker on the
             allowed psychological condition, including the Vocational
             Assessment report of Howard Caston, Ph.D., of 07/08/2014,
             that the Injured Worker's request for a finding of permanent
             and total disability, is DENIED, and the Injured Worker is
             not deemed permanently and totally disabled.

(Emphasis sic.)

       {¶ 28} 16. On November 12, 2014, claimant moved for reconsideration of the
SHO's order of October 20, 2014 based upon the commission's continuing jurisdiction
under R.C. 4123.52.
       {¶ 29} Among the grounds claimant articulated for reconsideration is the
following:
             The SHO order also relies on the March 19, 2014 report of
             Dr. Gula to support the denial of the PTD application. Dr.
             Gula's report only considers the allowed conditions in the
             2006 claim. The reliance in the SHO order of the March 19,
             2014 report of Dr. Gula is not proper as that report does not
             address all of the allowed conditions.

       {¶ 30} 17. On December 12, 2014, the commission mailed an interlocutory order,
stating:
             The Injured Worker's Request for Reconsideration, filed
             11/12/2014, from the Staff Hearing Officer order, issued
             10/28/2014, is referred to the Commission Level Hearings
             Section to be docketed before the Members of the Industrial
             Commission. The issues to be heard are:

             1. Issue:

             1) Continuing Jurisdiction Pursuant To R.C. 4123.52
             2) Permanent Total Disability
No. 15AP-416                                                                      9

             It is the finding of the Industrial Commission the Injured
             Worker has presented evidence of sufficient probative value
             to warrant adjudication of the request for Reconsideration
             regarding the alleged presence of a clear mistake of law of
             such character remedial action would clearly follow, and a
             clear mistake of fact in the order from which reconsideration
             is sought.

             Specifically, it is alleged the Staff Hearing Officer denied
             permanent total disability compensation based on a medical
             report that does not consider the allowed conditions in all of
             the claims that are alleged to be causing disability.

             The order issued is vacated, set aside, and held for naught.

             Based on these findings, the Industrial Commission directs
             the Injured Worker's Request for Reconsideration, filed
             11/12/2014, be set for hearing to determine whether the
             alleged clear mistake of law and/or fact as noted herein is
             sufficient for the Industrial Commission to invoke its
             continuing jurisdiction.

             In the interest of administrative economy and for the
             convenience of the parties, after the hearing on the question
             of continuing jurisdiction, the Industrial Commission will
             take the matter under advisement and proceed to hear the
             merits of the underlying issue(s). The Industrial Commission
             will thereafter issue an order on the matter of continuing
             jurisdiction under R.C. 4123.52. If authority to invoke
             continuing jurisdiction is found, the Industrial Commission
             will address the merits of the underlying issue(s).

      {¶ 31} 18. Following a January 29, 2015 hearing, the three-member commission,
one commissioner absent, issued an order finding that the SHO's order of October 20,
2014 (mailed October 28, 2014) contains a clear mistake of law and fact:
             Specifically, the Staff Hearing Officer did not cite to evidence
             that considered the correct allowed conditions from both
             claims at issue. Rather, the Staff Hearing Officer relied
             exclusively upon the opinion of Douglas Gula, D.O., dated
             03/19/2014, for the determination of the Injured Worker's
             residual physical capacities; yet, Dr. Gula did not accurately
             note and evaluate the allowed conditions in Claim Number
             96-417416. Therefore, the Industrial Commission exercises
             continuing jurisdiction pursuant to R.C. 4123.52.
No. 15AP-416                                                                            10

          {¶ 32} The commission then conducted a de novo review. Vacating the SHO's
order mailed October 28, 2014 and awarding PTD compensation, the commission
explained:
                It is the order of the Commission that the IC-2, Application
                for Compensation for Permanent Total Disability, filed
                01/28/2014, is granted. The Commission finds the allowed
                conditions, when considered in combination with
                nonmedical disability factors, render the Injured Worker
                permanently and totally disabled.

                This decision is supported by the reports from Raymond
                Richetta, Ph.D., dated 07/31/2013, and Sheldon Kaffen,
                M.D., dated 05/15/2014. Dr. Richetta opined that
                psychological condition renders the Injured Worker
                permanently and totally disabled while Dr. Kaffen opined the
                physical conditions, from both claims, restrict the Injured
                Worker to sedentary work with further restrictions against
                any repetitive motion of the shoulders, lifting more than five
                pounds with either upper extremity, and no use of the
                shoulders above chest level.

                The Injured Worker is 61 years old and a high school
                graduate with work experience as an HVAC servicer, pump
                repair shop manager, and maintenance worker. The
                commission finds persuasive the opinion of Mark Anderson,
                M.S., C.D.M.S., L.P.C., dated 07/06/2014, who concluded
                the Injured Worker has no transferable skills from his
                previous work experience and is vocationally limited by his
                advancing age, lack of clerical aptitude, and time away from
                the competitive work force. The Commission further relies
                upon the rehabilitation closure reports dated 01/18/2000
                and 05/02/2013. After participating in job search services,
                the initial rehabilitation program ended because of medical
                instability. More recently, the Injured Worker was deemed
                not feasible for services based upon the conclusion from Gail
                Klier, M.Ed., C.R.C., C.C.M., dated 04/19/2013, opining the
                Injured Worker's prognosis for a return to work is poor.

                Permanent total disability compensation shall begin on
                07/31/2013, based upon the report of Dr. Richetta of that
                date, which supports the award [of] compensation.

          {¶ 33} 19. On April 16, 2015, relator, Kent State University, filed this mandamus
action.
No. 15AP-416                                                                            11

Conclusions of Law:
        {¶ 34} The issue is whether the commission abused its discretion in exercising
continuing jurisdiction to vacate the SHO's order of October 20, 2014 that denied the
PTD application.
        {¶ 35} Finding no abuse of discretion, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus, as more fully explained below.
        {¶ 36} Continuing jurisdiction is not unlimited. Its prerequisites are (1) new and
changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or
(5) error by inferior tribunal. State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454,
459 (1998); State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990,
¶ 14.
        {¶ 37} Ohio Adm.Code 4121-3-34 sets forth the commission's rules regarding the
adjudication of PTD applications.
        {¶ 38} Ohio Adm.Code 4121-3-34(C) is captioned "Processing of applications for
permanent total disability." Thereunder, Ohio Adm.Code 4121-3-34(C) currently
provides:
              (1) Each application for permanent total disability shall
              identify, if already on file, or be accompanied by medical
              evidence from a physician, or a psychologist or a psychiatric
              specialist in a claim that has been allowed for a psychiatric or
              psychological condition, that supports an application for
              permanent total disability compensation. * * * The medical
              evidence used to support an application for permanent total
              disability compensation is to provide an opinion that
              addresses the injured worker's physical and/or mental
              limitations resulting from the allowed conditions in the
              claim(s). * * * If an application for permanent total disability
              compensation is filed that does not meet the filing
              requirements of this rule, or if proper medical evidence is not
              identified within the claim file, the application shall be
              dismissed without hearing. Where it is determined at the
              time the application for permanent total disability
              compensation is filed that the claim file contains the
              required medical evidence, the application for permanent
              total disability compensation shall be adjudicated on its
              merits as provided in this rule absent withdrawal of the
              application for permanent total disability compensation.

              ***
No. 15AP-416                                                                      12


              (4)

              (a) The injured worker shall ensure that copies of medical
              records, information, and reports that the injured worker
              intends to introduce and rely on that are relevant to the
              adjudication of the application for permanent total disability
              compensation from physicians who treated or consulted the
              injured worker that may or may not have been previously
              filed in the workers' compensation claim files, are contained
              within the file at the time of filing an application for
              permanent total disability.

              ***

              (5)

              (a) Following the date of filing of the permanent and total
              disability application, the claims examiner shall perform the
              following activities:

              (i) Obtain all the claim files identified by the [injured
              worker] on the permanent total disability application and
              any additional claim files involving the same body part(s) as
              those claims identified on the permanent total disability
              application.

              (ii) Copy all relevant documents as deemed pertinent by the
              commission including evidence provided under paragraphs
              (C)(1) and (C)(4) of this rule and submit the same to an
              examining physician to be selected by the claims examiner.

       {¶ 39} Ohio Adm.Code 4121-3-34(D) is captioned "Guidelines for adjudication of
applications for permanent total disability."
              Thereunder, Ohio Adm.Code 4121-3-34(D)(2) currently provides:
              (a) If, after hearing, the adjudicator finds that the medical
              impairment resulting from the allowed condition(s) in the
              claim(s) prohibits the injured worker's return to the former
              position of employment as well as prohibits the injured
              worker from performing any sustained remunerative
              employment, the injured worker shall be found to be
              permanently and totally disabled, without reference to the
              vocational factors listed in paragraph (B)(3) of this rule.
No. 15AP-416                                                                              13

              (b) If, after hearing, the adjudicator finds that the injured
              worker, based on the medical impairment resulting from the
              allowed conditions is unable to return to the former position
              of employment but may be able to engage in sustained
              remunerative employment, the non-medical factors shall be
              considered by the adjudicator.

              The non-medical factors that are to be reviewed are the
              injured worker's age, education, work record, and all other
              factors, such as physical, psychological, and sociological, that
              are contained within the record that might be important to
              the determination as to whether the injured worker may
              return to the job market by using past employment skills or
              those skills which may be reasonably developed.

       {¶ 40} The Supreme Court of Ohio has repeatedly held that, in determining
whether a claimant is permanently and totally disabled, the commission must consider
all the allowed conditions. State ex rel. Johnson v. Indus. Comm., 40 Ohio St.3d 339
(1988). (The claimant's PTD application was supported by a report from psychiatrist,
G.M. Sastry, who found claimant to be permanently totally disabled. The commission
exclusively relied upon a report from Dr. Colquitt, who evaluated only the physical
conditions.) State ex rel. Cupp v. Indus. Comm., 58 Ohio St.3d 129 (1991). (The
"numerous serious conditions" additionally allowed in the claim were not mentioned in
the commission's order nor evaluated by Dr. McCloud upon whom the commission
exclusively relied.)   State ex rel. Didiano v. Beshara, 72 Ohio St.3d 255 (1995).
(Claimant's "serious psychiatric condition," major depression, was not evaluated by the
two doctors' reports upon whom the commission relied.) State ex rel. Roy v. Indus.
Comm., 74 Ohio St.3d 259 (1996). (Following the PTD hearing, claimant moved to
amend his claim to include a psychiatric condition.          The commission added the
psychiatric claim allowance, but failed to consider it when it denied reconsideration.)
       {¶ 41} In State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276 (1993), the
commission failed to list "dysthymic disorder" as an allowed condition in its order
denying PTD compensation. The Zollner court stated:
              Claimant's first assertion is grounded in the omission of
              "dysthymic disorder" from the enumerated conditions in the
              permanent total disability order. Relying on State ex rel.
              Johnson v. Indus. Comm. (1988), 40 Ohio St.3d 339, * * *
              claimant contends that the omission constitutes an abuse of
No. 15AP-416                                                                           14

                 discretion. Johnson, however, is distinguishable. There, as
                 here, the commission's order did not list an allowed
                 psychiatric condition among the allowed conditions.
                 However, in Johnson, the evidence upon which the
                 commission relied to deny permanent total disability related
                 solely to the claimant's physical condition. These two factors
                 led us to question whether the commission indeed
                 considered all allowed conditions. The order was accordingly
                 returned for clarification.

Id. at 277-78.

       {¶ 42} In reviewing the SHO's order of October 20, 2014 that was vacated by the
commission, it can again be observed that the order states reliance upon the reports of
Drs. Gula, Querry, Lyall, and Caston.
       {¶ 43} At the request of Kent State, Dr. Gula examined only for the allowed
physical conditions of the 2006 claim. Based solely on his examination of the physical
conditions of the 2006 claim, Dr. Gula opined that claimant "is not permanently and
totally disabled as he would be capable of working in some capacity." Dr. Gula never
opined as to the specific capacity that claimant would be able to work.
       {¶ 44} At the request of Kent State, Dr. Querry examined for the psychological
condition allowed in the 2006 claim. Dr. Querry opined that the allowed psychological
condition of the 2006 claim did not permanently and totally disable the claimant. Dr.
Querry rated the psychological impairment to be four percent.
       {¶ 45} At the commission's request, Dr. Lyall examined for the allowed
psychological condition of the 2006 claim. Dr. Lyall found mild impairment at 15
percent. He further opined that the psychological condition: "would not inhibit a return
to work." However, claimant "should avoid hi[gh] stress, hi[gh] pace jobs."
       {¶ 46} At the request of Kent State, Caston prepared a vocational report in which
he opined that claimant "is capable of engaging in employment."
       {¶ 47} Ohio Adm.Code 4121-3-34(B) provides for definitions related to the
commission's rules for the adjudication of PTD applications.          Thereunder, at Ohio
Adm.Code 4121-3-34(B)(4), the rule provides:
                 "Residual functional capacity" means the maximum degree
                 to which the injured worker has the capacity for sustained
No. 15AP-416                                                                             15

                performance of the physical-mental requirements of jobs as
                these relate to the allowed conditions in the claim(s).

         {¶ 48} Only the reports of Drs. Gula, Querry, and Lyall relate to residual
functional capacity. The Caston report does not. Dr. Caston is not a physician who is
qualified to render a medical opinion as to residual functional capacity.
         {¶ 49} Given the three reports relating to residual functional capacity, we have no
relied upon report that addresses the allowed conditions of the 1996 claim. Again, Dr.
Gula confined his examination solely to the allowed physical conditions of the 2006
claim.
         {¶ 50} Given that the SHO failed to rely upon a medical report that addresses the
allowed conditions of the 1996 claim, we have a clear mistake of law. On that basis, the
three-member commission had continuing jurisdiction to vacate the SHO's order which
was a final order not subject to an administrative appeal.
         {¶ 51} Here, relator argues that the SHO was not required to consider the allowed
conditions of the 1996 claim because claimant failed to submit medical evidence with his
PTD application that supports a finding that one or more of the allowed conditions of
the 1996 claim cause impairment. Thus, relator concludes that the SHO was justified in
relying solely upon the report of Dr. Gula for the allowed physical conditions to be
considered. Relator cites no authority to support its argument.
         {¶ 52} In fact, relator's argument is even broader. Apparently, it is relator's
position that only the psychological condition in the 2006 claim must be considered
because claimant only submitted a report from a psychologist in support of his PTD
application. That is, because claimant only submitted the report of Dr. Richetta in
support of his PTD application, relator argues that none of the physical injuries of either
claim need be considered by the adjudicator.
         {¶ 53} As relator puts it:
                A review of the evidence submitted establishes that
                Claimant's sole basis for PTD benefits is actually limited to
                the psychological component of the 2006 Claim involving
                Kent.

                Claimant only submitted evidence that he is PTD based on
                the psychological condition associated with the 2006 Claim.
                There was no evidence submitted by Claimant that he is PTD
No. 15AP-416                                                                            16

              based on his physical injuries, whether from the 1996 Claim
              or the 2006 Claim. Only the 2006 Claim is allowed for a
              psychological condition. As such, the 2006 Claim can be the
              only basis for awarding PTD benefits.

(Relator's Brief, 13.)
       {¶ 54} Absent from relator's argument is an analysis of Ohio Adm.Code 4121-3-
34(C) regarding the processing of PTD applications.
       {¶ 55} While Ohio Adm.Code 4121-3-34(C)(1) provides that an application can be
dismissed if it is filed without the required medical evidence, nowhere is it even
suggested that the PTD applicant has the duty or burden to submit medical evidence as
to each of the allowed conditions of his industrial claims in order to obtain commission
consideration of all the allowed conditions of his industrial claims.
       {¶ 56} Moreover, Ohio Adm.Code 4121-3-34(C)(5) commands that the claims
examiner obtain "all the claim files identified by the injured worker on the permanent
total disability application and any additional claim files involving the same body part(s)
as those claims identified on the permanent total disability application." Thus, the rule
requires the claims examiner to obtain files that the applicant may have failed to identify
on the application.
       {¶ 57} Here, on his PTD application, claimant appropriately listed the claim
numbers of both claims in response to the request on the PTD application form.
       {¶ 58} Clearly, the SHO had the duty to consider all the allowed conditions of
both industrial claims. Because he did not do so, the exercise of continuing jurisdiction
over his order was appropriate.
       {¶ 59} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.


                                              /S/ MAGISTRATE
                                              KENNETH W. MACKE
No. 15AP-416                                                                   17




                           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).
