[Cite as State ex rel. Johnson v. OSU Cancer Research Hosp., 2015-Ohio-3249.]
                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

[State ex rel.] Eleanorene Johnson,                   :

                Relator,                              :

v.                                                    :                         No. 14AP-430

OSU Cancer Research Hospital                          :                  (REGULAR CALENDAR)
and Industrial Commission of Ohio,
                                                      :
                Respondents.
                                                      :


                                          D E C I S I O N

                                    Rendered on August 13, 2015


                Michael J. Muldoon, for relator.

                Dinsmore & Shohl, LLP, Christen S. Hignett and Michael L.
                Squillace, for respondent OSU Cancer Research Hospital.

                Michael DeWine, Attorney General, and John R. Smart, for
                respondent Industrial Commission of Ohio.

                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
HORTON, J.
        {¶ 1} Relator, Eleanorene Johnson, brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order exercising its continuing jurisdiction, and to order the commission to
reinstate the order of its staff hearing officer ("SHO").
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate, who has now rendered a decision and
recommendation that includes findings of fact and conclusions of law and is appended to
this decision. The magistrate concluded that the commission did not abuse its discretion
in exercising its continuing jurisdiction and thereby vacating the SHO's order.
No. 14AP-430                                                                              2

Respondent, OSU Cancer Research Hospital ("OSU"), relator's employer, has filed the
following objection to the magistrate's decision:
              RESPONDENT, THE OHIO STATE UNIVERSITY CANCER
              RESEARCH HOSPITAL, OBJECTS TO THE FINDING OF
              THE MAGISTRATE THAT RELATOR DOES NOT HAVE AN
              ADEQUATE REMEDY AT LAW.

       {¶ 3} Relator has also filed an objection to the magistrate's decision. However, for
the reasons which follow, we sustain OSU's objection, thereby rendering relator's
objection moot.
       {¶ 4} As reflected in the facts given in the magistrate's decision, relator suffered
an industrial injury in 2010 and her claim was allowed for the following physical
condition: sprain lumbosacral. On August 23, 2013, relator filed a C-86 motion requesting
that her claim be additionally allowed for the following psychological condition: major
depression, single episode, non-psychotic, severe. A district hearing officer disallowed
relator's request. The matter came before the SHO on October 18, 2013. The SHO granted
relator's request and additionally allowed her claim to include the requested psychological
condition. OSU attempted to appeal the SHO's order, but the commission refused the
appeal.
       {¶ 5} OSU then filed a request for reconsideration with the commission. On
January 9, 2014, the commission issued an order vacating the SHO's order and setting the
matter for a hearing. The commission concluded that the SHO's order contained a clear
mistake of law, as it failed to find that the requested psychological condition was causally
related to the allowed physical condition. The commission accordingly granted OSU's
request for reconsideration, and denied relator's request for the additional allowance.
       {¶ 6} The magistrate determined that the commission did not abuse its discretion
by exercising its continuing jurisdiction, as the SHO's order contained a clear mistake of
law. As such, the magistrate recommended that we deny relator's request for a writ of
mandamus.
       {¶ 7} The magistrate also addressed OSU's contention that the instant action was
a right to participate case and appealable to the court of common pleas. The magistrate
concluded that the commission's decision to exercise its continuing jurisdiction was
reviewable in mandamus, as it could not be challenged elsewhere.
No. 14AP-430                                                                              3

       {¶ 8} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the
objected matters "to ascertain that the magistrate has properly determined the factual
issues and appropriately applied the law." A relator seeking a writ of mandamus must
establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon
respondent to perform the act requested, and (3) that relator has no plain and adequate
remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police and
Firemen's Disability and Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting
State ex rel. Consol. Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear legal
right exists where the [commission] abuses its discretion by entering an order which is
not supported by 'some evidence.' " Id.
       {¶ 9} OSU asserts that relator has an adequate remedy in the ordinary course of
the law pursuant to R.C. 4123.512. R.C. 4123.512(A) states, in relevant part, that "[t]he
claimant or the employer may appeal an order of the industrial commission * * * in any
injury or occupational disease case, other than a decision as to the extent of disability to
the court of common pleas." Thus, "[u]nder R.C. 4123.512, claimants and employers can
appeal Industrial Commission orders to a common pleas court only when the order
grants or denies the claimant's right to participate" in the workers' compensation fund.
State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 278 (2000).
"Determinations as to the extent of a claimant's disability, on the other hand, are not
appealable and must be challenged in mandamus." Id. at 278-79.
       {¶ 10} Thus, the issue before this court resolves to whether the commission's
decision to exercise its continuing jurisdiction amounted to a decision determining
relator's right to participate in the workers' compensation system. Pursuant to the
Supreme Court of Ohio's recent decision in State ex rel. Alhamarshah v. Indus. Comm.,
142 Ohio St.3d 524, 2015-Ohio-1357, we find that it was.
       {¶ 11} In Alhamarshah, the claimant filed an application for workers'
compensation benefits, and the Bureau of Workers' Compensation allowed the claim.
The employer then faxed some documents to the bureau, which a bureau employee
construed as a notice of appeal. The commission accepted the appeal, and a hearing
officer disallowed the claim. The claimant then filed a complaint for a writ of mandamus
in the court of appeals, asserting that the commission abused its discretion by
determining that the faxed documents amounted to a notice of appeal.
No. 14AP-430                                                                              4

       {¶ 12} The commission's determination that the faxed documents complied with
the statutory requirements for a notice of appeal was a decision which "conferred
jurisdiction on the commission to proceed to consider the merits of the purported
employer's appeal." Id. at ¶ 12. As the "commission's exercise of jurisdiction resulted in a
decision denying the claimant's right to participate in the workers' compensation
system," the Supreme Court held that the "decision allowing the appeal to proceed was
essential to the ultimate determination that denied the claimant's participation in the
workers' compensation system." Id. at ¶ 12. As such, the court found that "the
commission's decision to accept the appeal as valid was appealable pursuant to R.C.
4123.512," and the claimant thus "had an adequate remedy in the ordinary course of law
by way of an appeal under R.C. 4123.512." Id. at ¶ 12-13.
       {¶ 13} The commission's decision here to exercise its continuing jurisdiction
resulted in a decision which denied relator the right to participate in the workers'
compensation system. The commission's decision was thus "essential to the ultimate
determination that denied the claimant's participation in the workers' compensation
system." Id. at ¶ 12. Accordingly, the commission's decision to exercise its continuing
jurisdiction was appealable to the court of common pleas pursuant to R.C. 4123.512.
       {¶ 14} Following our own independent review, and for the reasons set forth in
this decision, we sustain OSU's objection to the magistrate's decision, overrule relator's
objection as moot, and reject the magistrate's conclusions of law. Because relator has an
adequate remedy at law, mandamus relief is inappropriate. As such, we deny the request
for a writ of mandamus.
                                                                OSU's objection sustained;
                                       relator's objections rendered as moot; writ denied.

                        BROWN, P.J. and BRUNNER, J., concur.
                             _________________
No. 14AP-430                                                                           5

                                  APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

[State ex rel.] Eleanorene Johnson,         :

             Relator,                       :

v.                                          :                    No. 14AP-430

OSU Cancer Research Hospital                :               (REGULAR CALENDAR)
and Industrial Commission of Ohio,
                                            :
             Respondents.
                                            :



                        MAGISTRATE'S DECISION

                              Rendered on April 22, 2015



             Michael J. Muldoon, for relator.

             Dinsmore & Shohl, LLP, Christen S. Hignett and Michael L.
             Squillace, for respondent OSU Cancer Research Hospital.

             Michael DeWine, Attorney General, and John R. Smart, for
             respondent Industrial Commission of Ohio.

                                      IN MANDAMUS

      {¶ 15} Relator, Eleanorene Johnson, has filed this original action requesting that
this court find that the Industrial Commission of Ohio ("commission") abused its
discretion when it exercised its continuing jurisdiction over her application to have her
claim additionally allowed for a psychological condition and ordering the commission to
vacate its order on grounds that the commission did not have jurisdiction, and further
ordering the commission to reinstate the order of its staff hearing officer ("SHO")
No. 14AP-430                                                                           6

granting her the right to participate in the workers' compensation system for an allowed
psychological condition.
Findings of Fact:
      {¶ 16} 1. Relator sustained a work-related injury to her low back on August 19,
2010 while working for respondent OSU Cancer Research Hospital ("OSU").
      {¶ 17} 2. Relator's workers' compensation claim has been allowed for the
following physical condition: "sprain lumbosacral."
      {¶ 18} 3. Relator's claim has been specifically disallowed for the following
additional back conditions:
             Disc protrusion L5-S1; substantial aggravation of pre-
             existing L5-S1 disc herniation.

      {¶ 19} 4. On April 23, 2013, relator filed a C-86 motion asking that her claim be
additionally allowed for the following psychological condition: "major depression, single
episode, non-psychotic, severe."
      {¶ 20} 5. In support of her motion, relator submitted the April 1, 2013 report of
Michael Glenn Drown, Ph.D. In his report, Dr. Drown noted relator's complaints:
             Chronic Pain; Dysphoric Mood; Anhedonia (inability to
             experience joy); Sadness; Sleep Impairment; Loss of
             Motivation; Despair; Hopelessness; Irritability; Chronic
             Frustration.

             Ms. Johnson elaborated that prior to her work injury she was
             a happy and able bodied person. She described herself as a
             hard worker. She played with her grandchildren. She enjoyed
             going out with friends. She had a boyfriend. She had no
             problems getting up and down. She road her bike. She was
             able to do her own household chores. She walked a lot and
             enjoyed taking a bath. She was hopeful regarding her future.
             She felt good about herself. She was content in life and had
             self-confidence. Her self-image was that of a strong
             individual capable of forging her way through life in a
             meaningful and productive way both for the benefit of her
             family and the community at large.

             Following her work injury[,] Ms. Johnson has become
             restricted in many aspects of ordinary living. She struggles
             with problems of pain. She explained that she lost her job
             because of her injury. She is sad and cries all the time. She is
             unable to sit or stand for any length of time. She can no
             longer play with her grandchildren like she used to because
No. 14AP-430                                                                           7

             of pain. She can not ride her bike. Her daughter must do the
             chores for her. She lost her boyfriend because pain keeps her
             from having sex.

             Ms. Johnson worries about aggravating her injury. She
             would like additional help for learning how to better manage
             her pain, worries and depressive feelings. Learning to better
             manage these specific problems is paramount to her learning
             to rebuild her life in general. She fears that without proper
             treatment she will become more and more depressed.

             ***

             Ms. Johnson is presently unemployed. She worked twenty-
             one years for OSU as a housekeeper. She seeks to re-
             establish herself as a happy and secure worker gainfully
             employed. She seeks to better adapt to these problems.

             Under additional major life stressors, Dr. Drown noted:
             The most significant stressor impinging on Ms. Johnson is
             her work injury, including the loss of functioning, pain,
             associated problems of worries and fears and the deflected
             self-esteem.

             Ms. Johnson is being treated for hypertension. She has
             issues with her thyroid and with seizures. She evidently had
             adjusted well to the usual medical illness of childhood
             including measles and chickenpox. She has reportedly been
             able to adjust through period[s] of time when she has the
             common cold and flu; this may happen on a seasonal basis.
             However, the medical issues that wear on her unceasingly
             are those which are work related and cause her unrelenting
             physical pain.

             Ms. Johnson reported no history of either drug or alcohol
             abuse. She reports no criminal history. There is no prior
             psychiatric treatment.

      {¶ 21} Dr. Drown administered the BDI-II test and indicated that relator fell under
the category of severe depression.   The ISB test revealed that relator was generally
maladaptive regarding her mood, anxiety, pain and self-image. The MMPI-2 test was
administered and, in discussing the results, Dr. Drown concluded that the proper
interpretation of relator's profile was for a "cry for help." Dr. Drown recommended the
following:
No. 14AP-430                                                                 8

           Based [on] this most recent interview and psychometric test
           results, it can be said that Ms. Eleanorene Johnson suffers
           from Major Depression, Single Episode, Non-Psychotic,
           Severe. It is within reasonable certainty that this psychiatric
           disorder is directly related to her industrial injury as
           referenced on page one of this report.

           It is highly recommended that Ms. Johnson be permitted to
           receive antidepressant medication; certain antidepressant
           medications such as selective sympathetic re-uptake
           inhibitors (SSRI) are well known to assist in the
           management of pain, mood and worry.

           It is vitally important that she be allotted the opportunity to
           participate in at least 26 weeks of intensive cognitive and
           behavioral therapy that would focus on the management of
           mood, anxiety and physical pain. Such therapy should also
           address       the  issue    of    self-image    reconstruction.
           Furthermore[,] such therapy should focus on recovery of
           such problems to the point of enhancing her sense of job
           security, and job satisfaction.

           Should Ms. Johnson be granted this type of therapy, it is
           important that useful tracking tools be utilized in order to
           measure or gauge treatment outcome. At the end of this
           specified number of sessions, a second evaluation should be
           made which addresses efficacy of the treatment process.

           At this point in time a recommendation should be made
           regarding the need and direction for continuation of such
           therapy. This could include the termination of psychotherapy
           altogether if benefit cannot be substantiated. Given her
           excellent work ethic and positive attitude toward mental
           health recovery as well as toward learning pain management,
           the prognosis for making significant strides through
           psychological counseling is optimistic. She will need
           treatment with a patient therapist capable of feeling
           compassion and creative enough to assist her in finding hope
           as she moves through the various struggles which she faces.
           Prognosis under such conditions is good for moving through
           the grieving process and onto reconstruction of her life,
           including vocational rehabilitation which may lead to
           reemployment. Should she not be permitted to engage in
           structured psychological counseling, her condition is likely to
           worsen.
No. 14AP-430                                                                             9

       {¶ 22} 6. Relator was also examined by Dr. Earl F. Greer, Jr., Ed.D. In his July 19,
2013 report, Dr. Greer ultimately concluded that she was not suffering from a major
depressive disorder, but was experiencing a depressive disorder currently diagnosed as
dysthymic disorder.     In Dr. Greer's opinion, relator had an underlying, pre-existing
personality pattern and/or emotional state which was aggravated by the August 19, 2010
work-related injury. Dr. Greer further opined that the degree of impairment appeared
temporary pending the outcome of treatment with psychological/psychiatric intervention
being highly recommended.
       {¶ 23} 7. Relator was also examined by Richard H. Clary, M.D. In his August 23,
2013 report, Dr. Clary noted the history of relator's present illness:
              Ms. Johnson began working at OSU Medical Center in 1990.
              She later moved to the OSU James Cancer Hospital. She
              worked in the housekeeping department. She was injured on
              8/19/10 when she was cleaning a patient's room. She was
              moving a chair and noted pain in her lower back. She went to
              the OSU Medical Center Emergency Room where she was
              treated and released.

              She then began follow-up care at the OSU East Occupational
              Medicine Clinic and treated with Dr. Smith initially, but then
              she began treating with a Dr. Schaub. She's had physical
              therapy and prescription medication. She has also had x-ray
              and a[n] MRI. She consulted with a pain doctor and the
              doctor recommended some type of injections but she said
              this was not approved by BWC.

              She now sees Dr. Schaub every 2-3 months. She takes
              Vicodin 5 mg. four times a day as needed for pain and she
              takes over the counter Tylenol. She said her lower back pain
              has not improved since the time of the injury.

              Ms. Johnson returned to work on light duty after the injury
              and worked for about a year. After 1 year, she said OSU told
              her there were no more light duty jobs available.

              Ms. Johnson said her attorney referred her to Psychologist
              Dr. Drown. We submitted a report dated 4/1/13 but he has
              not provided any treatment. BWC then referred her to
              Psychologist Dr. Greer. He submitted a report dated 7/19/13
              but he has not provided any treatment.
No. 14AP-430                                                                            10

                Ms. Johnson denies any psychiatric care or treatment before
                the injury of 8/19/10. She has never been hospitalized for
                psychiatric problems.

          {¶ 24} Ultimately, Dr. Clary opined that relator had not developed the
psychological disorder as a result of the August 19, 2010 injury. Instead, Dr. Clary noted
that relator had suffered from seizures for the last several years and, in his opinion,
tended to exaggerate her problems.         Specifically finding that she did not have a
psychological condition or aggravation attributable to the work-related injury, Dr. Clary
stated:
                Ms. Johnson denied any past history of ever having
                treatment for any psychiatric or psychological problems. Her
                teenage years were very stressful after her mother died
                because she had to take care of 5 younger children and she
                had to deal with her father who abused alcohol and was
                mean and horrible to her when he was drinking. Ms.
                Johnson was also inconsistent in reporting her past use of
                marijuana.

                In my medical opinion, Ms. Johnson is not suffering from
                major depressive disorder as the result of the injury of
                8/19/10. In my medical opinion, Ms. Johnson is not
                suffering from dysthymic disorder as the result of the injury
                of 8/19/10. In my medical opinion, Ms. Johnson has a
                tendency to exaggerate her psychiatric symptoms. During my
                evaluation, Ms. Johnson was exaggerating her short term
                memory problems. In my medical opinion, the exaggeration
                of memory problems correlates with the exaggeration of
                psychiatric symptoms.

                In my medical opinion, Ms. Johnson has had a seizure
                disorder problem for about 15 years but she has had poor
                control over the seizures for the last several years and she's
                had several seizures each year. In my medical opinion,
                having seizures on a yearly basis could certainly cause
                depression, which would be present even in the absence of
                her injury of 8/19/10.

                In my medical opinion, her injury of 8/19/10 did not
                aggravate a pre-existing psychiatric condition.

          {¶ 25} 8. In a letter dated September 3, 2013, Dr. Drown responded to Dr. Clary's
report, stating:
No. 14AP-430                                                                11

           Problem One: Making reference to the MMPI-2 profile that I
           generated from my initial evaluation (4/01/13) Dr. Clary
           opined that Ms. Johnson was attempting to exaggerate her
           symptoms because in addition to the F (faking bad) score
           being elevated, the L (lie) score and the K (defensive) scales
           were very low. However Dr. Clary fails to recognize that the F
           scale elevation is most probably a "cry for help" indication
           and rises as an artifact of the genuine suffering she has
           expressed in the clinical scales especially that of scale 2
           (depression) and scale 7 compulsivity, 3 (Hysteria), and scale
           5 (Paranoia).

           Additionally, the low scale of L (lie) and of K (defensive)
           contradict Dr. Clary's analysis that Ms. Johnson is
           exaggerating. Instead such low scores if anything would
           indicate a tendency not to over report.

           Problem Two: Dr. Clary presents a list of life event stressors
           that Ms. Johnson has encountered and implies that the [sic]
           such stressors continue to be operative including the death of
           various family members many years ago. However[,] these
           are life event stressors for all people who live long enough.
           These matters have long been resolved. The problems that
           are ongoing and clearly unresolved include the ongoing work
           injury pain, the loss of her ability to be employed, the grief
           associated with the loss of functioning. Ms. Johnson's life
           style plans have been "blown up" because of their [sic]
           multiple work injuries. She had expected to work until her
           late sixties. Currently her status with her O.S.U. employer is
           involuntary retirement.

           I reviewed my earlier 4/01/13 evaluation of Ms. Johnson.
           Indeed[,] during this evaluation she expressed herself as
           having ongoing problems with chronic work injury pain. This
           information is reflected in the various instruments that I
           administered to her (see attached). She explained that her
           pain is so overwhelming that it impairs her concentration
           ability as well as causes her to have much anger and
           frustration. Furthermore she reports having problems of low
           self-confidence, diminished ability to find joy and pleasure
           with social withdraw and isolation, feeling sad and having
           hopelessness. She also reports having [a] problem with
           managing daily stress. She is easily frustrated, irritable and
           stressed. She reports worrying a good deal especially about
           her work injury issues becoming worse across time. In
           addition to taking psychotropic medication she would like to
           have someone to talk to regarding the better management of
           her mood problems. There is nothing in the Dr. Clary
No. 14AP-430                                                                           12

              defense report that would change my mind in regard to his
              opinion. Ms. Johnson suffers from a work related affective
              disorder. Dr. Greer identified this disorder as, "Dysthymic
              Disorder." I have identified it as, "Major Depression, Single
              Episode, Non-Psychotic[, Severe]." I stand by the diagnosis
              that I have made in my 4/01/13 report. Dr. Greer's diagnosis
              is very close to the diagnosis that I have generated and will
              be adequate to help Ms. Johnson get the treatment that she
              desperately needs.

       {¶ 26} 9. Relator's motion was heard before a DHO on September 5, 2013. The
DHO relied on the report of Dr. Clary and disallowed relator's claim for the requested
psychological condition.
       {¶ 27} 10. Relator appealed and the matter was heard before an SHO on
October 18, 2013. The SHO vacated the prior DHO order and relied on Dr. Drown's April
1, 2013 report as well as his December 3, 2013 rebuttal and granted relator's request that
her claim be allowed for major depression, single episode, non-psychotic, severe.
       {¶ 28} 11. OSU's appeal was refused by order of the commission mailed November
15, 2013.
       {¶ 29} 12. OSU filed a request for reconsideration and in an order mailed
January 9, 2014, the commission issued an interlocutory order vacating the prior SHO
order and setting the matter for hearing:
              It is the finding of the Industrial Commission that the
              Employer 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 that remedial action would
              clearly follow.

              Specifically, it is alleged that in granting the requested
              additional allowance of a psychological condition, the Staff
              Hearing Officer erred by failing to make a finding that the
              psychological condition is related to the allowed condition.
              In addition, it is alleged that the Staff Hearing Officer erred
              by relying upon the reports from Michael Drown, Ph.D., who
              does not recognize or address the conditions previously
              disallowed in the claim.
       {¶ 30} 13. The matter was heard before the commission on April 3, 2014. The
commission granted reconsideration, stating:
              [I]n granting the request to additionally allow the claim for a
              psychological condition, the Staff Hearing Officer failed to
No. 14AP-430                                                                           13

              find the requested condition was related to the physical
              injury previously recognized in the claim, as required by
              Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d 58,
              2013-Ohio-2237 * * *.

       {¶ 31} 14. Thereafter, the commission denied relator's request for the additional
allowance, stating:
              It is the decision of the Commission to deny the Injured
              Worker's C-86 Motion filed 04/22/2013 [sic], requesting the
              additional allowance of MAJOR DEPRESSION, SINGLE
              EPISODE, NON-PSYCHOTIC, SEVERE and to
              specifically DISALLOW the claim for such condition. The
              Commission is not persuaded the specified psychological
              diagnosis is causally related to the allowed lumbosacral
              sprain condition allowed in the claim, a soft tissue condition
              now three years old, particularly when consideration is given
              to the L5-S1 disc conditions specifically disallowed in the
              claim on both a direct and substantial aggravation basis.

              The Commission relies on the 08/23/2013 report from
              Richard Clary, M.D., a psychiatrist who examined the
              Injured Worker on 08/22/2013, regarding the issue of
              recognition of the requested additional condition. Dr. Clary
              concluded the Injured Worker neither suffered from the
              requested major depressive disorder nor any other
              psychiatric disorder as a result of the 08/19/2010 industrial
              injury. Dr. Clary further opined the industrial injury did not
              aggravate any pre-existing psychiatric condition. Based on
              Dr. Clary's persuasive report, the Commission hereby
              denies the requested additional allowance for the
              psychological condition of MAJOR DEPRESSION,
              SINGLE EPISODE, NON-PSYCHOTIC, SEVERE in the
              claim.

(Emphasis sic.)
       {¶ 32} 15. The stipulation of evidence contains the transcript from the commission
hearing.   That transcript provides information concerning relator's allowed physical
condition, which is pertinent.    Specifically, relator's claim is solely allowed for the
lumbosacral sprain, which at the time, was a two and one-half-year old soft tissue injury
that had resolved. Further, relator's treating physician Dr. Schaub, opined that the
allowed physical condition had reached maximum medical improvement ("MMI") in
February 2011. The transcript also documents the denial of a request for an MRI in 2012,
the denials of requested medications in 2012, reference to medical reports reaffirming the
No. 14AP-430                                                                              14

resolution of the allowed condition and pointing out degenerative disc issues which are
not allowed.
       {¶ 33} 16. On August 14, 2014, OSU filed a motion to dismiss arguing that this is a
right to participate case and relator has an adequate remedy at law pursuant to an R.C.
4123.512 appeal to the common pleas court.
       {¶ 34} 17. In a magistrate's order filed October 31, 2014, the magistrate denied
OSU's motion to dismiss finding this court had jurisdiction to determine whether the
commission abused its discretion, as a matter of law, when the commission exercised its
continuing jurisdiction.
       {¶ 35} 18. The stipulation of evidence and briefs have been filed; oral argument
has concluded and the case is currently before the magistrate for consideration.
Conclusions of Law:
       {¶ 36} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 37} 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).
       {¶ 38} 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
No. 14AP-430                                                                             15

examined the judicially-carved circumstances under which continuing jurisdiction may be
exercised, and stated as follows:
              R.C. 4123.52 contains a broad grant of authority. However,
              we are aware that the commission's continuing jurisdiction is
              not unlimited. See, e.g., State ex rel. Gatlin v. Yellow Freight
              System, Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480
              N.E.2d 487 (commission has inherent power to reconsider
              its order for a reasonable period of time absent statutory or
              administrative restrictions); State ex rel. Cuyahoga Hts. Bd.
              of Edn. v. Johnston (1979), 58 Ohio St.2d 132, 12 O.O.3d
              128, 388 N.E.2d 1383 (just cause for modification of a prior
              order includes new and changed conditions); State ex rel.
              Weimer v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16
              O.O.3d 174, 404 N.E.2d 149 (continuing jurisdiction exists
              when prior order is clearly a mistake of fact); State ex rel.
              Kilgore v. Indus. Comm. (1930), 123 Ohio St. 164, 9 Ohio
              Law Abs. 62, 174 N.E. 345 (commission has continuing
              jurisdiction in cases involving fraud); State ex rel. Manns v.
              Indus. Comm. (1988), 39 Ohio 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.

       {¶ 39} As an initial matter, OSU continues to argue that this court does not have
jurisdiction to hear this mandamus action asserting that this is a right to participate case
and relator has an adequate remedy at law. As OSU asserts, if this court finds the
commission abused its discretion when it determined the SHO's order contained a clear
mistake of law, relator's claim will be additionally allowed for a psychological condition
and OSU will have to challenge that allowance in common pleas court.
       {¶ 40} The commission may exercise its continuing jurisdiction for only those
reasons enumerated in the statute.       The commission asserts that the SHO's order
contained a clear mistake of law: the SHO failed to find the requested psychological
condition was related to the allowed conditions in the claim as required by Armstrong v.
Jurgensen Co., 136 Ohio St.3d 58, 2013-Ohio-2237. Relator asserts the commission
No. 14AP-430                                                                            16

merely reweighed the evidence acceptable in an appeal but not acceptable under
continuing jurisdiction.
       {¶ 41} The magistrate finds that the commission's determination that it had
continuing jurisdiction is reviewable here in mandamus as it cannot be challenged
elsewhere.
       {¶ 42} In this mandamus action, there are a limited number of medical records
which have been filed and the medical records which have been filed all concern relator's
allowed psychological condition. Missing from the stipulation of evidence are medical
records documenting relator's physical condition. However, the stipulation of evidence
does contain a copy of the transcript from the April 4, 2014 hearing and, after reviewing
that transcript, the magistrate finds that the commission did not abuse its discretion when
it exercised its continuing jurisdiction.
       {¶ 43} In exercising its continuing jurisdiction, the commission cited the decision
from the Supreme Court of Ohio in Armstrong.           Although the fact pattern here is
different, the law and its application are not. Shaun Armstrong was involved in a motor
vehicle accident during the course of his employment. While stopped at a yield sign,
Armstrong observed a vehicle approaching from behind with increasing speed.
Armstrong braced for a collision, afraid he was going to be seriously injured. After the
collision, Armstrong called 9-1-1, observed the other driver was not moving and suspected
he was dead. Armstrong filed a workers' compensation claim, which was allowed for
certain physical injuries and subsequently requested additional allowance for post-
traumatic stress disorder ("PTSD"). Ultimately, because Armstrong's PTSD did not arise
from his physical injuries, his request to have that condition allowed was denied.
       {¶ 44} In affirming the determination that PTSD should not be allowed in
Armstrong's claim, the Supreme Court stated:
              Armstrong's final argument concerns the effect of the 2006
              amendment to R.C. 4123.01(C)(1), which added the following
              italicized language to the statute: injury does not include
              "[p]sychiatric conditions except where the claimant's
              psychiatric conditions have arisen from an injury or
              occupational disease sustained by that claimant."
              Am.Sub.S.B. No. 7, 151 Ohio Laws, Part I, 1019, 1046. The
              parties agree that the purpose of the amendment was to
              counter the decision in [Bailey v. Republic Engineered
              Steels, Inc., 91 Ohio St.3d 38, 39-40, 741 N.E.2d 121 (2001)],
No. 14AP-430                                                                            17

              which allowed a claim for depression after the claimant
              accidentally killed a coworker, even though the claimant did
              not suffer any physical injury himself. By amending the
              statute, the General Assembly clarified that the claimant, not
              a third party, must sustain the physical injury required under
              R.C. 4123.01(C)(1). The amendment did not alter the
              statutory language regarding the necessary nexus between a
              physical injury and a psychiatric condition, and the sole
              effect of the amendment here is to preclude Armstrong from
              establishing the compensability of his PTSD by arguing that
              it arose from the other driver's injuries or death.

(Emphasis sic.) Id. at ¶ 25.
       {¶ 45} In the present case, the issue was whether the medical evidence was
sufficient to support a finding that relator's request that her claim be allowed for major
depression, single episode, non-psychotic, severe, was in fact, related to the allowed
physical condition in her claim, sprain lumbosacral.        Relator's date of injury was
August 19, 2010 and it was in 2013 that Dr. Drown opined she was suffering from a
psychological condition. Dr. Drown's April 1, 2013 report, repeatedly explains that relator
continues to suffer significant back pain, which is also keeping her from enjoying life or
returning to work. However, a lumbosacral sprain is a soft tissue injury which would not
continue causing relator problems three years post-injury.        With that in mind, the
magistrate notes the following from the transcript which includes reference to medical
reports which are not contained in the stipulation of evidence:
              The allowed physical injury in this claim is a two and a half
              at least, at the time the C86 was filed two and a half-year-old
              soft tissue injury. All of the evidence with respect to the
              treatment for the physical condition indicates that the
              sprained lumbosacral resolved.

              That being the case, it cannot be said that the resolved
              condition directly caused the requested mental condition.

              With respect to resolution of the allowed sprained
              lumbosacral[,] I direct your attention to a document dated
              February 21, 2011, wherein the physician of record Dr.
              Schaub in a note that's actually dated February 16, 2011, said
              the allowed condition to reach maximum medical
              improvement [sic]. Treatment requests have been denied
              based upon medical reports that have found the allowed
              condition has resolved.
No. 14AP-430                                                                  18

           I direct your attention to DHO, SHO orders denying a
           request for an MRI. DHO document date May 25, 2012, SHO
           document date July 11, 2012. Injured worker's request for an
           MRI was denied based upon a report by Dr. Gayton or
           Gaytons. And his report for your information is included in
           ADR documents or imaged March 30, 2012.

           In that report Dr. Gayton tells us lumbar sprain is well past
           the injury timeline in this case and the requested treatment
           at that point in time[,] an MRI[,] was directed toward non-
           allowed conditions.

           Medications have been denied under this claim. District
           Hearing Officer dated July 20, 2012[,] SHO dated August 30,
           2012, denied medications requested by the physician of
           record in this claim based upon the report of Dr. Schaub,
           document date June 8, 2012.

           And in that report Dr. Schaub tells us that the soft tissue
           injury has long since healed and the treatment is directed the
           medication at that point in time were directed toward
           chronic problems [sic].

           In addition to that information you have subsequent notes
           from Dr. Schaub that I reviewed in my request for
           reconsideration. You also have a request for physical therapy
           that was denied based upon a report of Dr. Hiroba.

           Dr. Hiroba noted in her report that was relied upon by the
           Commission to deny treatment that the injury, again, the
           allowed soft tissue injury is well beyond the usual nine- to
           ten-week timeline for sprains and strains. And that the
           treatment at that point in time was physical therapy was [sic]
           directed toward not the allowed degenerate disc disease, not
           the allowed sprain condition [sic].

           The physician of record[,] Dr. Schaub[,] indicated in 2011[,]
           found that the allowed condition had reached maximum
           medical improvement.

           More recently Dr. Schaub in a note dated August 14, 2013,
           said the patient is only allowed for a sprain/strain claim so I
           recommend she follow up with her family physician for
           ongoing treatment.

           There is no evidence in the record from Dr. Schaub at least
           that indicates that it is the allowed soft tissue injury that is
No. 14AP-430                                                                                19

               the cause of the symptoms that she conveys to the treatment
               providers.

(Tr. 10-13.)
       {¶ 46} When the SHO allowed relator's claim for a psychological condition, the
SHO relied on the April 1 and September 3, 2013 reports of Dr. Drown. In his April 1,
2013 report, Dr. Drown does not list any medical records concerning relator's physical
conditions which he reviewed. Further, nowhere in his report does Dr. Drown indicate
that he is aware relator attempted to have her claim additionally allowed for significant
back conditions, but the request was denied. As such, although he notes that her back
pain is the main cause of her psychological condition, nowhere in Dr. Drown's report does
he specifically indicate that the lumbosacral sprain, in and of itself, was sufficient to cause
the psychological condition. It may be that relator's claim should have been allowed for
additional, more serious, back conditions; however, the fact remains that it was not.
Because Dr. Drown's reports do not discuss the allowed condition of lumbosacral sprain,
and whether or not relator's pain was actually attributable to that allowed condition, the
commission did not abuse its discretion when it exercised its continuing jurisdiction here.
This is not simply a factual disagreement as relator suggests. Relator's evidence simply
was not sufficient to demonstrate that the psychological condition was proximately
caused by the allowed physical condition in her claim.
       {¶ 47} Based on the foregoing, the magistrate finds the commission did not abuse
its discretion when it exercised its continuing jurisdiction. As such, it is this magistrate's
decision that 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 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).
