[Cite as State ex rel. Knedler v. Indus. Comm., 2013-Ohio-5537.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Charles W. Knedler,                      :

                 Relator,                              :
                                                                      No. 12AP-804
v.                                                     :
                                                                   (REGULAR CALENDAR)
Industrial Commission of Ohio,                         :
and Department of Rehabilitation
and Correction - Pickaway Correctional                 :
Institute,
                                                       :
                 Respondents.
                                                       :



                                            D E C I S I O N

                                   Rendered on December 17, 2013


                 Copp Law Offices, and Shawn M. Wollam, for relator.

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

                 Isaac, Wiles, Burkholder & Teetor, LLC, and J. Miles Gibson,
                 for respondent Department of Rehabilitation & Correction -
                 Pickaway.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

T. BRYANT, J.
        {¶1}     Relator, Charles W. Knedler, filed an original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its July 13, 2010 order that exercised continuing jurisdiction over a January 13,
2010 order of its staff hearing officer ("SHO") awarding relator permanent total
disability ("PTD") compensation starting November 12, 2008, and to enter an order
No. 12AP-804                                                                            2

reinstating the January 13, 2010 SHO's order. Alternatively, relator requested that the
writ order the commission to vacate the portion of its July 13, 2010 order that
determined relator is unable to perform sustained remunerative employment and to
conduct a new hearing on the merits of the PTD application because one of the
commissioners was absent from the July 13, 2010 hearing.
I. BACKGROUND
       {¶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.         The magistrate issued detailed
findings of fact and conclusions of law which is appended to this decision. (Attached as
an Appendix).
       {¶3}   Relator and respondents, the commission and the Department of
Rehabilitation and Correction ("ODRC"), all filed objections to the magistrate's decision.
The case is now before the court for a full, independent review. For ease of discussion,
we provide a brief recitation of the relevant facts to this decision.
       {¶4}   Relator has two industrial claims arising from his employment with
ODRC. After an SHO granted relator's request for PTD compensation, the employer
requested the commission reconsider of the SHO's order contending that the SHO relied
on Dr. Manuel's November 12, 2008 and January 14, 2009 reports, but the doctor's
January 7, 2009 office notes were inconsistent with those reports.
       {¶5}   After reconsideration was requested, relator's doctor, Dr. Manuel, sent the
commission a letter dated June 29, 2010 stating that the activity restrictions as
discussed in his November 12, 2008 report are accurate and his office notes of
January 7, 2009 constituted a continuation of outdated activity restrictions and did not
reflect the changes made on November 12, 2008. The error was not noted until relator
had a follow-up office visit on March 4, 2009, and the activity restrictions were
corrected. The commission excluded the doctor's note finding it was untimely filed.
       {¶6}   The commission held a hearing with only two commissioners present. The
commission vacated the SHO's order and denied relator's application for PTD
compensation. The absent commissioner wrote on the commission order that he had
discussed the matter with an SHO who had been present during the hearing, and the
SHO summarized the testimony, evidence and arguments presented at the hearing.
No. 12AP-804                                                                          3

After the discussion and a review of all the evidence in the claim file, the absent
commissioner voted to grant continuing jurisdiction and deny the PTD application.
      {¶7}   Subsequently, the commission mailed an order declaring an overpayment
of PTD compensation and indicated that the overpayment would be collected as a
percentage of future awards. On administrative appeal, an SHO issued an order finding
that relator received the compensation benefits in good faith and no fraud was involved.
The SHO determined that since R.C. 4123.511 provides for recollection according to the
method set forth in R.C. 4123.511(K) only after final administrative determination of an
appeal, and does not provide for reconsideration, the overpayment should be charged to
the statutory surplus fund.
      {¶8}   The administrator of the bureau and the employer filed appeals/requests
for reconsideration. Relator filed a motion to dismiss the appeals. The commission
exercised continuing jurisdiction and found a mistake of law and error by a subordinate
hearing officer by charging the overpayment to the surplus fund. After a hearing, the
commission found the SHO erred when he ordered a reimbursement of the
overpayment from the surplus fund. The commission vacated the SHO order and
ordered the overpayment to be collected from relator pursuant to R.C. 4123.511(K).
Relator then filed this original action seeking a writ of mandamus.
      {¶9}   The matter was referred to a magistrate who found that the commission
had continuing jurisdiction and the vote of the commissioner who was absent from the
hearing deprived relator of due process of law with respect to that portion of the
commission's order that determined on the merits relator's application for PTD
compensation. However, the magistrate decided that the missing commissioner did not
violate relator's due process rights regarding the commission's determination that the
SHO order contained a clear mistake of law because the determination of a clear
mistake of law did not rest upon witness credibility at the hearing. The magistrate
decided the court should issue a writ of mandamus ordering further administrative
proceedings to redetermine the merits of relator's application for PTD and the issue of
overpayment.
No. 12AP-804                                                                           4

II. OBJECTIONS
     {¶10} Relator filed the following four objections to the magistrate's decision:
           I. RELATOR   OBJECTS    TO THE     MAGISTRATE'S
           CONCLUSION THAT THE COMMISSION PROPERLY
           EXERCISED CONTINUING JURISDICTION OVER THE
           FINAL ORDER DATED JANUARY 13, 2010 WHICH
           AWARDED PTD COMPENSATION. RELATOR SUBMITS
           THAT THE COMMISSION'S RECONSIDERATION ORDER
           CONSTITUTES AN ABUSE OF DISCRETION, EXCEEDS
           ITS JURISDICTION, IS CONTRARY TO LAW, SHOULD BE
           VACATED, AND THE FINAL ORDER AWARDING PTD
           SHOULD BE ORDERED REINSTATED.

           I-A. A PHYSICIAN'S ASSESSMENT OF SOME RESIDUAL
           FUNCTIONAL CAPACITY IS NOT NECESSARILY
           "INCOSISTENT" WITH A FINDING OF PTD WHERE THE
           PHYSICIAN SPECIFICALLY EXPLAINS THAT OTHER
           INJURY RELATED INDICIA OF DISABILITY IS PRESENT
           AND SUCH REASONING IS DEEMED PERSUASIVE BY
           THE SHO.

           I-B. (1) AN ERROR OF LAW IS NOT PRESENT WHEN "AN
           INCONSISTENT MEDICAL CONCLUSION CAN BE
           ATTRIBUTED TO MISTAKE, AS COMPARED TO LACK OF
           KNOWLEDGE, AND …OTHER MEDICAL EVIDENCE
           EXISTS FROM WHICH THE …[SHO]…COULD CONCLUDE
           THE MISTAKE WAS RESOLVED" State ex rel. Chrysler
           Corp. v. Indus. Comm., 81 Ohio St.3d 158 (1998).

           (2) DISAGREEMENT ON THE INTERPRETATION OF
           MEDICAL EVIDENCE IS NOT A CLEAR MISTAKE OF
           LAW; THE COMMISSION LACKS CONTINUING
           JURISDICTION   TO    STRIKE  EVIDENCE  FROM
           CONSIDERATION AS A MISTAKE OF LAW AND ABUSES
           ITS   DISCRETION   BY   REWEIGHING   MEDICAL,
           NEGLECTING CONTEMPORANEOUS CORRECTIONS IN
           THE RECORD, AND SUBSTITUTING ITS JUDGEMENT
           FOR THAT OF THE SHO.

           II. RELATOR OBJECTS TO THE MAGISTRATE'S
           CONCLUSION THAT THE INDUSTRIAL COMMISSION
           DID NOT ABUSE ITS DISCRETION AND ERR AS A
           MATTER OF LAW WHEN IT REFUSED TO CONSIDER DR.
           MANUEL'S JUNE 29, 2010 STATEMENT.
No. 12AP-804                                                                               5

              III. RELATOR OBJECTS TO THE MAGISTRATE'S
              CONCLUSION OF LAW CONCERNING "THE ABSENT
              COMMISSIONER" COMMENCING AT PAGE 22 OF HIS
              DECISION: RELATOR SUBMITS THAT WHEN THE
              COMMISSION HEARS A CONTINUING JURISDICTION
              RECONSIDERATION REQUEST FROM A FINAL ORDER,
              IT ABUSES ITS DISCRETION AND VIOLATES DUE
              PROCESS PROTECTIONS WHEN A MEMBER CASTS THE
              DECIDING VOTE "…IN SPITE OF THE FACT THAT SHE
              [OR HE] DID NOT ATTEND THE HEARING." STATE EX
              REL. EVERT V. INDUS. COMM., 10TH DIST. NO. 11AP-465,
              2012-OHIO-2402 ¶ 33, APPROVED, EXPLAINED AND
              FOLLOWED.

              IV. RELATOR OBJECTS TO THE MAGISTRATE'S
              RESOLUTION OF THE COMMISSION'S OVERPAYMENT
              ORDER BECAUSE THE ORDER IS AN ABUSE OF
              DISCRETION, CLEARLY CONTRARY TO LAW AND
              MISCALCULATED; THE MAGISTRATE VACATES THE
              ORDER IN FAVOR OF FURTHER PROCEEDINGS EVEN
              THOUGH THE COMMISSION LACKS JURISDICTION, IS
              ALREADY RECOUPING THE OVERPAYMENT AND THE
              SHO'S DETERMINATION OF THIS ISSUE IS LEGALLY
              AND FACTUALLY CORRECT.

       {¶11} The commission filed the following two objections to the magistrate's
decision:
              [1.] [T]he commission objects to the magistrate's finding
              that the non-attending commissioner's vote violated due
              process of law

              [2.] [The commission objects to] the magistrate's finding
              that the commission must vacate the overpayment orders.

       {¶12} ODRC filed an objection to the magistrate's decision requesting "this Court
to expand its ruling and allow for an absent Commissioner to vote after a review of the
case with a Hearing Officer present where credibility [of the] witness is not an issue."
III. DISCUSSION
       {¶13} After the briefs were filed in this court, the Supreme Court of Ohio decided
State ex rel. Sigler v. Lubrizol Corp., 136 Ohio St.3d 298, 2013-Ohio-3686, which
determines three of the objections raised in this case. In their objections, relator, the
commission and ODRC all raised the issue of whether the magistrate erred in finding
No. 12AP-804                                                                             6

that relator's due process rights were violated when the commission held a hearing with
only two members present and the third commissioner voted later. Relator's contention
was the magistrate erred in finding that his due process rights were not violated when
the commission determined that the SHO order contained a clear mistake of law and
vacated the SHO's final order.
       {¶14} In Sigler, the Supreme Court of Ohio determined that Sigler failed to
demonstrate that the commission's voting procedure violated due process. Sigler had
applied for PTD compensation and an SHO approved the award. This court ordered the
commission to reconsider Sigler's application and after another hearing, an SHO again
awarded Sigler PTD compensation. The employer filed a motion for reconsideration.
After a hearing with only two commissioners present, the commission granted the
motion for reconsideration to correct a clear mistake of law, vacated the award and
denied Sigler's application.
       {¶15} The Supreme Court of Ohio reiterated that a commissioner is not required
to attend a PTD hearing in order to participate in the decision, citing State ex rel.
Dayton Walther Corp. v. Indus. Comm., 71 Ohio St.3d 105, 107 (1994). The absent
commissioner may review a transcript of the hearing, but that is not the only method of
review, however, the commissioner's failure to consider any evidence from the hearing
violates the claimant's due process rights. State ex rel. Youghiogheny & Ohio Coal Co.
v. Indus. Comm., 65 Ohio St.3d 351 (1992); State ex rel. Ormet Corp. v. Indus. Comm.,
54 Ohio St.3d 102, 107 (1990). The Supreme Court then reviewed the Ormet decision in
which they held that the decision maker must "in some meaningful manner, consider
and appraise all the evidence to justify the decision." (Emphasis sic.) Sigler at ¶ 15. The
court had approved the use of subordinates to analyze the evidence and prepare a
summary or the absent commissioner could listen to an audiotape of the hearing and
review a summary prepared by a legal advisor and discuss with the other
commissioners. See Ormet; State ex rel. Ohio Bell Tel. Co. v. Indus. Comm., 68 Ohio
St.3d 329 (1994).
       {¶16} After reviewing its previous decisions, the court held that when the absent
commissioner reviewed the claim file and talked with a longtime commission hearing
officer who summarized the testimony, evidence and arguments for him, and referenced
his handwritten notes, there was no violation of due process rights.
No. 12AP-804                                                                            7

          {¶17} In this case, the absent commissioner noted on the order that:
                On 08/04/2010, I discussed this matter with Cindy Albrecht
                who was present at the 07/13/2010 hearing. Ms. Albrecht
                summarized the testimony, evidence and arguments
                presented at the hearing. After this discussion and a review
                of all the evidence contained within the claim file, I vote to
                grant continuing jurisdiction and deny the IC-2, Application
                for Permanent Total Disability Compensation, filed
                01/22/2009.

          {¶18} Given that the absent commissioner reviewed all the evidence and received
an oral summary of the testimony, evidence and arguments presented at the hearing,
there is compliance with the Sigler and Ormet standard of considering the evidence in a
meaningful manner and relator has not demonstrated a violation of his due process
rights.     Relator's third objection and the commission's first objection and ODRC's
objection are overruled.
          {¶19} Relator also objects to the magistrate's decision regarding his conclusion
that the commission properly exercised continuing jurisdiction over the January 13,
2010 order which awarded PTD compensation. The magistrate determined that the
November 12, 2008 and January 14, 2009 reports of Dr. Manuel are not some evidence
upon which the SHO could rely to support the PTD award and such reliance upon those
reports was a clear mistake of law that provided the prerequisite for the commission's
exercise of continuing jurisdiction.
          {¶20} SHOs are granted original jurisdiction to hear and decide applications for
PTD compensation. R.C. 4121.34(B)(1). There is no right to administratively appeal a
decision of an SHO awarding PTD compensation, thus the decision was a final order.
R.C. 4123.511(D) and (E). "The commission's power to reconsider a previous decision
derives from its general grant of continuing jurisdiction under R.C. 4123.52." State ex
rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, ¶ 14, citing State ex
rel. Royal v. Indus. Comm., 95 Ohio St.3d 97, 99 (2002). However, this power is not
unlimited and continuing jurisdiction can only be invoked when one of the following
requirements has been met: (1) new and changed circumstances, (2) fraud, (3) clear
mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal. Gobich at
¶ 14, citing State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998).
No. 12AP-804                                                                          8

      {¶21} Here, the magistrate found that the January 7, 2009 office notes by Dr.
Manuel were not inconsistent with the November 12, 2008 report because they were
based upon different examinations. The January 7, 2009 office notes constituted new
and changed circumstance following the issuance of the November 12, 2008 report
because the January 7, 2009 office notes suggest a very different picture of relator's
work status. The magistrate concluded that reliance on the November 12, 2008 and the
January 14, 2009 reports was a clear mistake of law by the SHO.
      {¶22} The magistrate correctly concluded that the January 7, 2009 office notes
constitute new and changed circumstances. The January 7, 2009 office notes reflect an
examination on that date and the relator's work status is different in January 2009 than
it was in November 2008. State ex rel. Conrad v. Indus. Comm., 88 Ohio St.3d 413
(2000). The SHO was not entitled to rely on the November 2008 report and ignore the
January 7, 2009 office notes. However, the magistrate did not discuss the January 14,
2009 report which reaches the same conclusion as the November 2008 report, but is
different than the January 7, 2009 office notes.        "[C]ontradictory or equivocal
statements by the same physician cannot, as a matter of law, support an award of
compensation. * * * Further, equivocation occurs when a doctor repudiates an earlier
opinion, renders contradictory or uncertain opinions, or fails to clarify an ambiguous
statement." State ex rel. Eberhardt v. Flexible Corp., 70 Ohio St.3d 649, 656-57 (1994).
Dr. Manuel's conflicting reports create uncertainty and cannot constitute evidence upon
which the commission may grant relator's application for PTD compensation and
reliance on those reports was a clear mistake of law and the commission could properly
exercise continuing jurisdiction.
      {¶23} Relator further argues that Dr. Manuel's November 12, 2008 and
January 14, 2009 reports were not simply based upon relator's diminished physical
strength alone, but also on other injury induced indicia of PTD. Relator contends the
magistrate only focused on the diminished physical strength and did not address the
rest of Dr. Manuel's findings. However, the January 7, 2009 office notes do not agree
with the November 12, 2008 and January 14, 2009 reports in more ways than the
diminished physical strength. The January 7, 2009 office notes provide, as follows:
             The patient presents today for re-evaluation. The patient['s]
             pain is actually only a 2.5 on a scale of 10 [and] has
No. 12AP-804                                                                             9

               significantly decreased from previous pain patterns. The
               patient with significant improvement with the change to
               Kadian from the Avinza. Patient getting much better sleep.
               The patient has just initiated an exercise program to start
               losing weight. The patient after his first attempt at the
               exercise program woke up stiff, but still without having
               significant increase in the amount of pain. The patient is
               using his TENS unit along with his medications. The patient
               is currently not working. The patient is able [to] stay within
               his activity restrictions on a daily basis. No other acute
               complaints.

       {¶24} In his November 12, 2008 letter, which is referenced in the January 14,
2009 report, Dr. Manual stated that, "Mr. Knedler's current work abilities are
significantly lessened due completely to his activity intolerance and pain management
intervention issues. * * * With regard to subjective complaints, Mr. Knedler experiences
continued numbness of both lower extremities on a daily basis. He also maintains a
constant pain level of 5 to 10 in his low back with radiation down his both legs
(left>right) (with medication on board) that increases frequently depending upon his
chosen level of physical activity. * * * Unfortunately, Mr. Knedler requires benefit of the
medications around the clock in order to tolerate even his present sedentary daily
activity."   Even considering his pain and medication, there was a change between
November and January—his pain decreased from a 5-10 to a 2.5 out of 10 and his
complaints improved with a change in medication. These reports create uncertainty in
relying on them and do not constitute evidence which can be relied upon.             Thus,
relator's first objection is overruled.
               {¶25} Relator argues that Dr. Manuel's office notes and reports are
ambiguous statements which he clarified in his letter to the commission on June 29,
2010. Relator objects to the magistrate's decision where he found that the commission
did not abuse its discretion when it refused to consider this letter. In Eberhardt, the
court stated that:
               "[A]mbiguous statements are inherently different from those
               that are repudiated, contradictory or uncertain. Repudiated,
               contradictory or uncertain statements reveal that the doctor is
               not sure when he means and, therefore, they are inherently
               unreliable. Such statements relate to the doctor's position on
               a critical issue. Ambiguous statements, however, merely
               reveal that the doctor did not effectively convey what he
No. 12AP-804                                                                          10

              meant and, therefore, they are not inherently unreliable. Such
              statements do not relate to the doctor's position but to his
              communication skills."

Id. at 657.

       {¶26} The commission found that Dr. Manuel's June 29, 2010 report was
untimely submitted. The commission has the discretion to accept or reject evidence
submitted after the hearing. State ex rel. Cordray v. Indus. Comm., 54 Ohio St.3d 99,
101 (1990); State ex rel. Schlegel v. Stykemain Pontiac Buick GMC, Ltd., 120 Ohio St.3d
43, 2008-Ohio-5303, ¶ 16. Dr. Manuel's June 29, 2010 letter does not clarify his
January 7, 2009 office notes but attempts to explain why the office notes should not be
considered at all. Thus, the commission did not abuse its discretion in refusing to admit
and consider Dr. Manuel's June 29, 2010 letter. Relator's second objection is overruled.
       {¶27} Finally, in his last objection, relator argues that the commission's order
regarding overpayment is an abuse of discretion and the SHO's determination was
actually legally and factually correct.   The magistrate did not determine this issue
because he decided that the commission should conduct further proceedings. Relator
contends that R.C. 4123.511(K) is not applicable to PTD benefits ordered paid following
a final R.C. 4123.35(B)(1) order in the absence of a finding of fraud because R.C.
4123.511 overpayment authority is limited to appeals. In this case, there was no appeal
from a PTD order; the overpayment resulted from the commission exercising continuing
jurisdiction. Thus, relator contends that any overpayment cannot be recouped from
relator.
       {¶28} "Claimants are entitled to receive the compensation due them but are not
entitled to receive a windfall when they are paid money to which they are not entitled."
State ex rel. Murphy v. Indus. Comm., 10th Dist. App. No. 05AP-275, 2006-Ohio-1480,
¶ 26. In State ex rel. Wooten v. Indus. Comm., 104 Ohio St.3d 186, 2004-Ohio-6505,
the Supreme Court of Ohio determined the issue on similar facts. In Wooten, the
claimant was awarded PTD compensation.            The employer filed a complaint in
mandamus and this court issued a limited writ that returned the cause to the
commission for further consideration finding that the commission did not adequately
explain its decision as required by State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203
(1991).    Upon reconsideration, the commission determined that claimant was not
No. 12AP-804                                                                          11

entitled to PTD compensation. Claimant did not appeal. The Bureau of Workers'
Compensation then determined that claimant had been overpaid and the amount was to
be repaid consistent with R.C. 4123.511(J). Claimant appealed, this court affirmed the
commission's order and the Supreme Court also affirmed.             The Supreme Court
distinguished cases where the compensation was terminated after discovering payment
had been initiated or continued as the result of a bona fide mistake.          When the
compensation was stopped because the order awarding it was reversed on
administrative reconsideration, R.C. 4123.511(K) was applicable.
      {¶29} Following the Supreme Court precedent, we find the commission did not
err in its November 8, 2010 order declaring an overpayment ($39,537.90) and ordering
recovery pursuant to R.C. 4123.511. Relator's fourth objection is overruled.
      {¶30} The commission also objected to the magistrate's decision arguing that
the magistrate erred in finding that the commission must vacate the overpayment
orders. Based on our ruling on the objections regarding the absent commissioner and
relator's objection regarding the overpayment order, this objection is sustained.
IV. CONCLUSION
      {¶31} In conclusion, after review of the magistrate's decision, an independent
review of the record pursuant to Civ.R. 53, and due consideration of all the objections,
we find that the magistrate has properly determined the pertinent facts, and adopt them
as our own. Relator's four objections are overruled, the commission's objections are
sustained and ODRC's objection is sustained. For the reasons set forth in this decision,
however, we do not adopt the magistrate's conclusions of law and deny the requested
writ of mandamus.
                                     Objections sustained in part and overruled in part;
                                                              writ of mandamus denied.

                         DORRIAN and O'GRADY, JJ., concur.

             T. BRYANT, J., retired, of the Third Appellate District,
             assigned to active duty under authority of Ohio Constitution,
             Article IV, Section 6(C).
No. 12AP-804                                                                         12

                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State ex rel. Charles W. Knedler,           :

              Relator,                      :
                                                                No. 12AP-804
v.                                          :
                                                            (REGULAR CALENDAR)
Industrial Commission of Ohio,              :
and Department of Rehabilitation
and Correction - Pickaway Correctional      :
Institute,
                                            :
              Respondents.
                                            :



                         MAGISTRATE'S DECISION

                                Rendered on July 16, 2013


              Copp Law Offices, and Shawn M. Wollam, for relator.

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

              Wiles Boyle Burkholder & Bringardner, and J. Miles Gibson,
              for respondent Department of Rehabilitation & Correction -
              Pickaway.


                                    IN MANDAMUS

       {¶32} In this original action, relator, Charles W. Knedler, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate its July 13, 2010 order that exercised continuing jurisdiction over a January 13,
2010 order of its staff hearing officer ("SHO") awarding relator permanent total
disability ("PTD") compensation starting November 12, 2008, and to enter an order
No. 12AP-804                                                                           13

reinstating the January 13, 2010 SHO's order. In the alternative, because one of the
commissioners was absent from the July 13, 2010 hearing, relator requests that the writ
order the commission to vacate that portion of its July 13, 2010 order that determined
that relator is able to perform sustained remunerative employment, and to conduct a
new hearing on the merits of the PTD application at which all three commissioners are
present.
Findings of Fact:
       {¶33} 1. Relator has two industrial claims arising from his employment with
respondent Ohio Department of Rehabilitation and Correction ("ODRC") at the
Pickaway Correctional Institution ("PCI") as a farm coordinator/corrections officer.
       {¶34} 2. On June 1, 2003, a cow kicked relator in the arm. The industrial claim
(No. 03-367229) is allowed for: "sprain left elbow/forearm; hyperextension of arm."
       {¶35} 3. On March 17, 2005, relator slipped on cow manure and fell, injuring his
back and shoulder. The industrial claim (No. 05-325083) is allowed for:
              Sprain thoracic region; contusion of back; sprain sacroiliac;
              sprain right shoulder; sacral coccygeal contusion;
              lumbosacral sprain/strain; L5-S1 herniated disc; post lumbar
              laminectomy syndrome; thoracic neuritis; lumbosacral
              neuritis; thoracic radiculitis; lumbosacral radiculitis;
              aggravation of pre-existing major depression.

       {¶36} 4. In June 2005, relator underwent a left L5-S1 laminectomy with
discectomy. The surgery was performed by Mark Hnilica, M.D.
       {¶37} 5. In October 2006, Dr. Hnilica performed an L3-4, L4-5, L5-S1
laminectomy and medial facetectomy and foraminotomies with intervertebral cage.
       {¶38} 6. On March 18, 2008, relator was examined by attending physician
Timothy Manuel, M.D., who practiced at the Fayette County Memorial Hospital. Dr.
Manuel's office note of that date states:
              HISTORY: Patient presents today pain is a 4 to 5/10 in the
              low back area continuous. Does have radiation down into
              both legs. Patient has added a TENS unit to the treatment
              plan and using it during the daytime noting some mild
              modulation of the pain. Is still working on where the patches
              go and which type patches are going to be most effective for
              him. Patient is using Lidoderm patch at night also with mild
              relief. Patient is using Vicodin, stating it just takes the edge
              off. He is using Lyrica three times a day and Flexeril at
No. 12AP-804                                                                    14

              bedtime and finding that it brings the pain down to a
              tolerable level. Patient is having some shoulder stiffness at
              this time. Patient is having a difficult time sleeping on the
              right side because of the shoulder stiffness. Patient has not
              developed any new radicular symptoms, or other acute
              complaints.

              ***

              TREATMENT PLAN: Treatment plan at this time, will
              change the patient's narcotic management at this time from
              the pulse management with the Vicodin and switch to Avinza
              which is for long continuous pain relief with the 24-hour
              release medication. Otherwise, we will keep the patient's
              medications as they have been. This patient is getting fairly
              good management with this. Patient at this time is over a
              year out from his last surgery. Therefore, we will obtain a
              functional capacity exam to see exactly what the patient's
              work capabilities are at this time and will also request
              vocational rehabilitation to help us with returning patient
              back to the work force. No other changes in the patient's
              treatment plan at this time.

       {¶39} 7. On November 12, 2008, at relator's request, Dr. Manuel wrote a two-
page letter or report stating:
              RE: Long term treatment/activity plan for Charles W.
              Knedler
              BWC Claim # 05-325083
              Date of Injury: 3-17-05

              Dear Mr. Knedler:

              I am in receipt of your request for insight into a projected
              long-term treatment plan taking into consideration the
              nature and severity of physical impairment for injured
              worker Charles W. Knedler, as it pertains to his BWC injury
              as referenced above. At your request I have reviewed Mr.
              Knedler's chart and have found the following to be true:

              1) Mr. Knedler has been treated throughout the majority of
              his injury history by myself and his neurosurgeon Dr. Mark
              Hnilica (along with other pain management physicians) for
              the following diagnoses: 847.1 Thoracic Sprain/Strain;
              922.31 Contustion [sic] Back; 846.1 Sacroiliac Sprain/Strain;
              922.32 Buttock Contusion; 840.9 Right Shoulder
              Sprain/Strain; 846.0 Lumbosacral Sprain/Strain; 722.83
No. 12AP-804                                                                 15

           Post Laminectomy Syndrome (Lumbar); 724.4 Lumbosacral
           Neuritis; 724.4 Lumbosacral Radiculitis; 722.10 HNP L5-S1;
           724.4 Thoracic Sprain/Strain and 724.4 Thoracic Radiculitis.

           2) During the treatment period referenced above, Mr.
           Knedler has undergone a laminectomy/discectomy dated 6-
           23-05, a fusion/cage dated 10-12-06 (for failed
           laminectomy), and epidural steroid injections. Mr. Knedler
           has also participated in physical therapy treatment plans,
           numerous prescription medication treatment plans and
           currently utilizes a TENS unit for added pain management.

           Having completed this aggressive intervention and treatment
           plan, Mr. Knedler remains without significant improvement
           of his ability to perform his usual daily activities. Mr.
           Knedler's physical abilities related to what he would be able
           to perform in an eight-hour work day are considerably less
           than what is generally determined to be a sedentary level of
           duty. I realize that Mr. Knedler's previous Functional
           Capacity Examination (FCE) rates his abilities at the
           moderate work level; however Mr. Knedler's current work
           abilities are significantly lessened due completely to his
           activity intolerance and pain management intervention
           issues. The rationale behind this is twofold. Mr. Knedler's
           objective physical findings post-surgery include:

           1) a slow deliberate ataxic, antalgic gait;
           2) unable to stand for any significant period of time with
           limited ambulation for very short periods of time (patient
           requires frequent position changes secondary to constant
           pain);
           3) radicular pain of both lower extremities with the left leg
           greater than the right.

           With regard to subjective complaints, Mr. Knedler
           experiences continued numbness of both lower extremities
           on a daily basis. He also maintains a constant pain level of 5
           of 10 in his low back with radiation down his both legs
           (left>right) (with medication on board) that increases
           frequently depending upon his chosen level of physical
           activity. This continued level of pain even at rest, along with
           the fact that his only remaining avenue of pain relief
           available has been (and will continue to be) only moderately
           successful, in the form of narcotic analgesics and
           neuropathic pain management medications that both can be
           moderately to heavily sedating as well as utilization of TENS
           unit for a limited period of the day. Unfortunately Mr.
No. 12AP-804                                                                     16

               Knedler requires benefit of the medications around the clock
               in order to tolerate even his present sedentary daily activity.
               The constant presence of these medications on board
               severely limits Mr. Knedler's ability to participate in any
               activity requiring prolonged periods of mental and physical
               alertness, as he requires intermittent periods of rest
               throughout the course of a day in order to overcome the
               sedative effects of the medication.

               Taking into consideration all of the above information, it is
               with a reasonable degree of medical probability that I feel
               that Mr. Knedler is not capable of performing even up to a
               sedentary level of employment on any kind of routine
               schedule. I certainly believe that this restriction will remain
               in place in the extended future as well, as Mr. Knedler has
               reached Maximum Medical Improvement for this injury as of
               6-3-08; meaning all possible avenues of intervention and
               treatment having been utilized previously with limited to no
               success, leaving continued narcotic prescription medication
               therapy as the only remaining avenue of pain management
               available to Mr. Knedler.

       {¶40} 8. On January 7, 2009, relator was examined by Dr. Manuel. The office
note states:
               HISTORY: The patient presents today for re-evaluation.
               The patient['s] pain is actually only a 2.5 on a scale of 10
               [and] has significantly decreased from previous pain
               patterns. The patient with significant improvement with the
               change to Kadian from the Avinza. Patient getting much
               better sleep. The patient has just initiated an exercise
               program to start losing weight. The patient after his first
               attempt at the exercise program woke up stiff, but still
               without having significant increase in the amount of pain.
               The patient is using his TENS unit along with his
               medications. The patient is currently not working. The
               patient is able [to] stay within his activity restrictions on a
               daily basis. No other acute complaints.

               ***

               TREATMENT PLAN: At this time the change to the
               narcotic with Kadian has done very well for the patient. We
               will continue the patient's activity restrictions. The patient
               treatment considerations as recommended by Dr.
               Bhattacharya was for possibility of an implanted electric
               stimulator. At this time, the patient would like to still
No. 12AP-804                                                                       17

              consider that but does not wish to go to that option this
              month. The patient [sic] otherwise the recommendations by
              Dr. Bhattacharya will continue to reference as the patient
              proceeds through the treatment plan. Patient at this time
              biggest hurdle is going to be the weight loss program but
              now the patient's decreased pain he does feel that he can
              increase his activity and may be able to start dropping weight
              and increasing his strength and flexibility. We will continue
              to encourage the patient as he goes through that.

              ACTIVITY RESTRICTIONS: Lifting, pushing, and pulling
              of 50 pounds maximum. Only occasional over the shoulder
              work and only occasional kneeling and squatting. Continue
              to use the TENS unit. Prescriptions for Flexeril, Lyrica
              Vicodin and Kadian.

       {¶41} 9. On January 14, 2009, Dr. Manuel completed a preprinted form
captioned "Physician's Report for Industrial Commission of Ohio." Presumably, the
form was prepared by relator's counsel. The form states:
              RE: Charles Knedler
              BWC Claim Number: 05-325083
              Date of Injury: 3-17-05
              D.O.B.: 9-23-78

              Allowed Conditions: 847.0 Sprain Thoracic Region; 922.31
              Contusion of Back; 846.1 Sprain sacroiliac; 922.32
              Contusion of buttock; 840.9 Sprain right shoulder and arm;
              846.0 Sprain lumbosacral; 722.10 L5-S1 herniated disc;
              722.83 Post lumbar laminectomy syndrome; 724.4 Thoracic
              neuritis; 724.4 Lumbosacral neuritis; 724.4 Thoracic
              radiculitis; 724.4 Lumbosacral radiculitis[.]

              "Based on the allowed conditions in this industrial claim,
              only, it is my opinion that the claimant, Charles Knedler, is
              (or) is not (circle one) permanently and totally disabled from
              employment."

       {¶42} On the form, Dr. Manuel circled the word "is" to indicate that relator is
permanently and totally disabled. In the space provided, Dr. Manuel wrote: "Again see
letter from 11/12/08."
       {¶43} 10. On March 4, 2009, relator was again examined by Dr. Manuel. The
office note states:
No. 12AP-804                                                                          18

             HISTORY: The patient presents today for re-evaluation.
             The patient's pain is only a 3 on a scale of 10. The patient
             does get radiation into the hips and lateral legs, especially
             when he is out walking, more of a numbness than a true
             pain. The patient's pain has been much better controlled on
             the new combination of medicines with the Kadian twice a
             day, Lyrica three times a day, and utilizing Flexeril at
             bedtime. The patient does occasionally use a Vicodin for days
             with worse pain, but overall the pain has been much better
             controlled with this current combination of medications.

             ***

             TREATMENT PLAN: At this time, the patient is doing
             much better with the current medications. We will continue
             these medications. The patient still with these medications is
             unable to work even a sedentary position, therefore, the
             patient will need to remain off work.

      {¶44} 11. Earlier, on January 22, 2009, relator filed an application for PTD
compensation. In support, relator submitted the November 12, 2008 and January 14,
2009 reports of Dr. Manuel.
      {¶45} 12. On February 10, 2009, at the employer's request, relator was
examined by Kelly E. Lindsay, M.D.       Dr. Lindsay examined for all of the allowed
physical conditions of the two industrial claims. In her eight-page narrative report, Dr.
Lindsay opines:
             This gentleman would be capable of performing
             remunerative employment if it was sedentary. He has a
             sitting tolerance of 1 to 1-1/2 hours, standing tolerance of 20-
             25 minutes and walking tolerance of 15-20 minutes. As long
             as Mr. Knedler is at a sedentary job with the ability to change
             positions frequently, he would be able to perform some sort
             of remunerative employment. He would not be able to kneel,
             twist, turn, bend, lift to his chest or over his head. He would
             be able to perform tactile work in front of him. If he is
             seated, which he should be for the majority of his potential
             work, he would need to be in a supportive ergonomic chair.

             ***

             In my medical opinion, this gentleman is not permanently
             and totally disabled form any work. He would not be able to
             return to his former position of employment but he would be
No. 12AP-804                                                                       19

              able to perform sedentary type of work. His restrictions
              would be as I stated above.

       {¶46} 13. At the employer's request, vocational specialist Brett J. Heath, CVE,
CDMS, issued a ten-page "Employability Assessment Report," dated March 4, 2009.
       {¶47} 14. On April 1, 2009, relator was again examined by Dr. Manuel. The
office note expresses disagreement with the February 10, 2009 report of Dr. Lindsay
without specifically identifying Dr. Lindsay's report:
              HISTORY: The patient presents today for scheduled
              reevaluation. The patient's pain is a 4 to 5 on a scale of 10.
              The patient's pain is primary in the lumbar spine area,
              radiating into both legs. The patient does have more
              increased pain when he first wakes up in the morning at 6-
              1/2 on a scale of 10, but, as he becomes active, the pain does
              decrease somewhat. The patient is sleeping much better now
              that he has been switched to the Kadian twice a day. Patient's
              medications with Kadian, Flexeril, and Lyrica through the
              day with Vicodin at night to help, the patient has been doing
              better with his pain. The patient had used the TENS unit to
              try and see if that helped modulate the pain and used it for
              two weeks and found that it gave him no benefit. The patient
              has had a recent independent medical examination done in
              reference to his permanent disability and that is discussed
              below. The patient has no other acute complaints.

              ***

              TREAMENT PLAN: At this time, patient will continue the
              medication that he has been on as recommended by the pain
              specialist. Although the patient's pain is only brought down
              to a 5 at best during the day, this is still an improvement. The
              patient's TENS unit did not end up benefiting the patient and
              will drop that from the patient's treatment. The patient did
              have an independent medical examination for determination
              of permanent total disability. I do disagree somewhat with
              the findings of the examiner; the examiner finding that the
              patient would be able to work in a sedentary environment,
              but with a sitting tolerance of less than an hour, with a
              standing tolerance of 20 minutes, walking tolerance of only
              15 minutes, and to get to that point, the patient requiring
              fairly heavy narcotics to be able to get to that point would
              make it dangerous for the patient to be able to drive himself
              to and from to be able to work underneath these medications
              with very difficult time with the patient not being able to lift
              or carry any significant weight, whatsoever, I do not feel the
No. 12AP-804                                                                         20

               patient is employable without risk to himself or others and
               would disagree that the patient would be able to return to
               any functional work environment. Otherwise, we will be
               keeping the patient off work at this time and refilling his
               medications. We will plan to follow up the patient in one
               month to be able to address any new concerns. Hopefully,
               will be able to start expanding out the visits to a quarterly
               basis once the patient is stabilized on the new medications.

               ACTIVITY RESTRICTIONS: Off work. Refill                     of
               prescriptions for Kadian, Vicodin, Lyrica, and Flexeril.

(Emphasis sic.)

       {¶48} 15. On April 26, 2009, at the commission's request, relator was examined
by Kenneth A. Writesel, D.O., who examined for all the allowed physical conditions of
the two industrial claims. In his six-page narrative report, Dr. Writesel opines:
               Please see completed Physical Strength Rating form
               attached. In my opinion, Mr. Knedler is capable working in a
               light-work capacity. In my opinion, he is most definitely not
               permanently and totally disabled.

       {¶49} 16. Dr. Writesel completed the Physical Strength Rating form. On the
form, Dr. Writesel indicated by his mark that relator is capable of light work.
       {¶50} 17. Following an August 13, 2009 hearing, an SHO issued an order
additionally allowing claim number 05-325083 for "aggravation of pre-existing major
depression."
       {¶51} 18. On October 10, 2009, at the commission's request, relator was
examined by clinical psychologist Norman L. Berg, Ph.D. Thereafter, Dr. Berg issued an
eight-page narrative report.
       {¶52} 19. On October 10, 2009, Dr. Berg completed a form captioned
"Occupational Activity Assessment Mental & Behavioral Examination." On the form,
Dr. Berg indicated by his mark:       "This injured work is capable of work with the
limitation(s) / modification (s) noted below:" In the space provided, Dr. Berg specified
his limitations.
       {¶53} 20. Following a January 13, 2010 hearing, an SHO mailed an order on
March 2, 2010 awarding PTD compensation starting November 12, 2008:
No. 12AP-804                                                                            21

             Permanent and total disability compensation is awarded
             from 11/12/2008 for the reason that the 11/12/2008 report
             of Dr. Manuel is the earliest supporting medical evidence.

             ***

             Based upon the report of Dr. Manuel, it is found that the
             [I]njured Worker is unable to perform any sustained
             remunerative employment solely as a result of the medical
             impairment caused by the allowed conditions. Therefore,
             pursuant to State ex rel. Speelman v. Indus. Comm. (1992)
             73 Ohio App.3d 757, it is not necessary to discuss or analyze
             the Injured Worker's non-medical disability factors.

             In statements dated 11/12/2008 and 01/14/2009 Dr. Manuel
             finds the Injured Worker permanently and totally disabled.
             He finds that the Injured Worker has continued numbness in
             both lower extremities on a daily basis with a constant pain
             level of 5 out of 10. His only relief is narcotic medication and
             neuropathic pain medication. Both of those types of
             medication can be very sedating. He can also utilize a TENS
             unit for a part of the day. The Injured Worker needs these
             medications around the clock to even perform activities of
             daily living. Because of the medication he would have to have
             rest breaks during the day. He goes on to find the Injured
             Worker as "not capable of performing even up to a sedentary
             level of employment on any kind of routine schedule."

             Since the finding of permanent total disability is being made
             based only on the report of Dr. Manuel, there is no
             discussion of the non-medical disability factors.

      {¶54} 21. On     March     19,   2010,   the   employer    requested      commission
reconsideration of the SHO's order of January 13, 2010 (mailed March 2, 2010).
      {¶55} 22. On May 4, 2010, the three-member commission, on a two-to-one vote,
mailed an interlocutory order:
             The Employer's request for reconsideration, filed
             03/19/2010, from the Staff Hearing Officer order, issued
             03/02/2010, 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. The Employer's request for the Industrial Commission to
             invoke its continuing jurisdiction pursuant to R.C. 4123.52,
             and
No. 12AP-804                                                               22

           2. Issue:
           1) Continuing Jurisdiction pursuant To R.C. 4123.52
           2) Permanent Total Disability

           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 fact in the order from which reconsideration is
           sought, and a clear mistake of law of such character that
           remedial action would clearly follow.

           Specifically, it is alleged that medical reports of Timothy
           [Manual], M.D., are inconsistent with his office notes, which
           indicate the Injured Worker is capable of working with
           restrictions.

           Based on these findings, the Industrial Commission directs
           that the Employer's request for reconsideration, filed
           03/19/2010, is to be set for hearing to determine whether
           the alleged mistakes of fact and law as noted herein are
           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).

     {¶56} 23. On June 29, 2010, Dr. Manuel wrote:
           I would first like to apologize to the Industrial Commission
           for the delay in this documentation. I am no longer employed
           at Fayette Memorial Hospital Department of Business
           Health. I am also no longer the physician of record for this
           patient.

           I would first like to address the issue of the activity
           restrictions on this patient. The activity restrictions are
           discussed in my report of November 12, 2008 are the
           accurate activity restrictions for this patient. In my
           documentation on the patient visit of January 7, 2009 an
           error was made of continuing outdated activity restrictions
           for the patient and did not reflect the changes made on
           November 12, 2008. This error was not noted until the
           patient's follow-up visit of March 4, 2009. At that time the
           activity restrictions were corrected to the appropriate
No. 12AP-804                                                                          23

               restrictions. An oversight was made in the documentation of
               that date not to make note that the previous activity
               restrictions had been listed in error.

               I would now like to address the issue of the sedation caused
               by the patient's need for high dose narcotics. With the level
               of narcotics the patient may at some point develop
               acclamation to these medications, but with the level of
               medications it is to be expected that the patient will have
               some degree of sedation which will adversely affect his daily
               activities and his ability to work. It is not conceivable to place
               this patient back to full work status or even a partial work
               status with this level of narcotics and other medications.

      {¶57} 24. On July 13, 2010, two members of the three-member commission
heard the employer's request for reconsideration as well as the merits of the PTD
application. Commissioner Kevin R. Abrams was not present at the July 13, 2010
hearing.
      {¶58} On August 4, 2010, the commission had further review and discussion.
      {¶59} On September 15, 2010, the commission mailed an order that exercises
continuing jurisdiction over the SHO's order of January 13, 2010 (mailed March 2,
2010) and vacates the SHO's order on grounds that it contains a clear mistake of law.
Also, the commission's order mailed September 15, 2010 addresses the merits of the
PTD application and denies the application.
      {¶60} Chairperson Gary DiCeglio voted "no."             Commissioner Jodi M. Taylor
voted "yes."
      {¶61} The commission's order, mailed September 15, 2010 explains:
               08/04/2010 - After further review and discussion, it is the
               finding of the Industrial Commission that the Employer has
               met its burden of proving that the Staff Hearing Officer
               order, issued 03/02/2010, contains a clear mistake of law of
               such character that remedial action would clearly follow.
               Specifically, the Staff Hearing Officer order was improperly
               based upon two reports from Timothy Manu[e]l, M.D., dated
               11/12/2008 and 01/14/2009. These reports were
               inconsistent with Dr. Manu[e]l's progress note, dated
               01/07/2009, wherein Dr. Manu[e]l opined the Injured
               Worker could lift, push, and pull up to fifty (50) pounds. As
               such, the reports are not some evidence upon which an
               award of permanent total disability compensation may be
               based. See State ex rel. Genuine Parts Co. v. Indus. Comm.,
No. 12AP-804                                                                 24

           160 Ohio App.3d 99, 2005-Ohio-1447. Although Dr.
           Manu[e]l submitted a clarifying report, dated 06/29/2010,
           the report was not timely filed pursuant to Ohio Adm.Code
           4121-3-34(C) (4) (a) and (d). Therefore, the Commission
           exercises continuing jurisdiction pursuant to R.C. 4123.52
           and State ex rel. Nicholls v. Indus. Comm. (1998), 81 Ohio
           St.3d 454, State ex rel. Foster v. Indus. Comm. (1999), 85
           Ohio St.3d 320, and State ex rel. Gobich v. Indus. Comm.,
           103 Ohio St.3d 585, 2004-Ohio-5990, in order to correct this
           error. The Employer's request for reconsideration, filed
           03/19/2010, is granted. It is further ordered that the Staff
           Hearing Officer order, issued 03/02/2010, is vacated.

           It is the order of the Commission that the Injured Worker's
           IC-2 Application for Permanent Total Disability
           Compensation, filed 01/22/2009, is denied.

           The Injured Worker sustained two work injuries while
           employed by the Employer of record. The first injury, to the
           left elbow, did not require surgical intervention. The second
           injury was much more severe, as evidenced by the claim
           allowances noted above. The Injured Worker underwent a
           lumbar laminectomy in 2005 and lumbar fusion in 2006.
           Current treatment is directed toward pain management
           through the use of prescription medication, a TENS unit and
           injections. For the allowed psychological condition, the
           Injured Worker has undergone psychotherapy and utilizes
           prescription medication.

           The Commission finds the allowed conditions from Claim
           number 05-325083 and Claim Number 03-367229 restrict
           the Injured Worker to light duty work with moderate
           psychological limitations. This finding is based upon the
           examination report from Kenneth Writesel, D.O., dated
           04/26/2009, and the examination report from Norman
           Berg, Ph.D., dated 10/10/2009. Dr. Writesel opined the
           Injured Worker remains capable of up to light duty work. Dr.
           Berg enumerated a number of moderate psychological
           limitations including: ability to maintain attention and
           concentration in a work setting; ability to relate adequately
           with others in a work setting; and ability to cope with routine
           job stress.

           The Injured Worker is 36 years old; a younger person whose
           age is a significant vocational asset. The Injured Worker is a
           high school graduate. The Injured Worker testified at
           hearing that he can read, write, do basic math, and perform
No. 12AP-804                                                                   25

            common computer operations (email, [F]acebook, and
            [E]bay). The Injured Worker's education is a vocational
            asset.

            The Injured Worker has worked as a correctional farm
            coordinator, press operator, sorter, warehouse worker,
            construction worker, fast food worker, and farmer. As a
            construction worker (roofer) and warehouse worker (forklift
            operator), the Injured Worker rose to the level of team
            leader. The Injured Worker supervised inmates at his former
            position of employment as a correctional farm coordinator.

            Brett Heath, CVE, CDMS, performed a vocational
            assessment on 03/04/2009. Mr. Heath classified the Injured
            Worker's correctional farm coordinator position as a skilled,
            medium strength job. The press operator, sorter, and
            warehouse positions were classified unskilled and medium
            strength, with the exception of press operator, which was
            light work.

            Mr. Heath identified numerous transferable job skills: plant
            cultivating, press forging, stock checking, plant farm crops,
            production services, directing, controlling or planning
            activities for others, performing repetitive or short cycle
            work, attaining precise set limits, tolerances and standards,
            working under specific instructions, dealing with people, and
            making judgments and decisions. Mr. Heath concluded the
            Injured Worker is qualified for numerous assembly and
            machine operator positions, which Mr. Heath specifically
            enumerated. The Commission, therefore, finds the Injured
            Worker's work experience is a vocational asset.

            Accordingly, the Commission finds the Injured Worker is
            vocationally qualified to perform light duty work consistent
            with the psychological limitations noted by Dr. Berg. The
            Injured Worker remains capable of sustained remunerative
            employment and the application for permanent total
            disability is denied.

      {¶62} 25. On the July 13, 2010 commission order, above his signature, Abrams
explains:
            On 08/04/2010, I discussed this mater with Cindy Albrecht,
            who was present at the 07/13/2010 hearing. Ms. Albrecht
            summarized the testimony, evidence and arguments
            presented at hearing. After this discussion and a review of all
            the evidence contained within the claim file, I vote to grant
No. 12AP-804                                                                              26

               continuing jurisdiction and deny the IC-2, Application for
               Permanent     Total     Disability Compensation,      filed
               01/22/2009.

         {¶63} 26. On November 8, 2010, the Ohio Bureau of Workers' Compensation
("bureau") mailed an order declaring an overpayment of PTD compensation starting
November 12, 2008. $39,537.90 was stated to be the overpayment amount. The order
further indicates that the overpayment will be collected as a percent of future awards.
         {¶64} 27. Relator administratively appealed the November 8, 2010 bureau
order.
         {¶65} 28. Following a March 3, 2011 hearing, an SHO issued an order finding
that relator received the compensation payments in good faith and is therefore entitled
to keep the payments for the period November 12, 2008 through August 4, 2010, the
date of the commission vote on the PTD application. The SHO further found that the
overpayment beginning August 4, 2010 should be charged to the statutory surplus fund.
         {¶66} 29. Both the employer and the bureau requested reconsideration of the
SHO's order of March 3, 2011.
         {¶67} 30. On June 14, 2011, the three-member commission mailed an
interlocutory order stating:
               It is the finding of the Industrial Commission that the BWC
               and Employer have 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, and an error by the subordinate hearing
               officer in the findings issued on 04/22/2011, which renders
               the order defective.

               Specifically, it is alleged that the Staff Hearing Officer
               misapplied R.C. 4123.511 and R.C. 4123.512 by charging to
               the surplus fund an overpayment of Permanent Total
               Disability resulting from the Commission's reversal of a Staff
               Hearing Officer's decision to grant the award.

               Based on these findings, the Industrial Commission directs
               that the BWC's request for reconsideration, filed 04/27/2011
               and the Employer's request for reconsideration, filed
               05/09/2011, are to be set for hearing to determine whether
               the alleged mistake of law and error by subordinate hearing
No. 12AP-804                                                                         27

             officer as noted herein are sufficient for the Industrial
             Commission to invoke its continuing jurisdiction.

      {¶68} 31. Following an August 2, 2011 hearing, the three-member commission
issued an order exercising continuing jurisdiction over the SHO's order of March 3, 2011
and vacating that order. The commission determined that the entire overpayment of
$39,537.90 must be recouped pursuant to R.C. 4123.511(K).
      {¶69} 32. On September 14, 2012, relator, Charles W. Knedler, filed this
mandamus action.
Conclusions of Law:
      {¶70} Two main issues are presented: (1) did the commission have continuing
jurisdiction over the January 13, 2010 order of the SHO who awarded PTD
compensation, and (2) did the vote of commissioner Abrams, who was absent from the
July 13, 2010 hearing, deprive relator of due process of law under State ex rel. Ormet
Corp. v. Indus. Comm., 54 Ohio St.3d 102 (1990).
      {¶71} The magistrate finds: (1) the commission had continuing jurisdiction over
the January 13, 2010 order of the SHO, and (2) the vote of commissioner Abrams, who
was absent from the July 13, 2010 hearing, deprived relator of due process of law.
      {¶72} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus, as more fully explained below.
                      The First Issue - Continuing Jurisdiction

      {¶73} The reports of Dr. Manuel are the focus of the first issue. Citing State ex
rel. Genuine Parts Co. v. Indus. Comm., 160 Ohio App.3d 99, 2005-Ohio-1447 (10th
Dist.), the commission found that the November 12, 2008 and January 14, 2009 reports
of Dr. Manuel, upon which the SHO exclusively relied, were inconsistent with Dr.
Manuel's January 7, 2009 report. Given the commission's citation to Genuine Parts, the
magistrate sets forth some basic law explaining the Genuine Parts rationale.
      {¶74} The Supreme Court of Ohio has held that a medical report can be so
internally inconsistent that it cannot constitute some evidence supporting a commission
decision. State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445 (1994). By extension,
the court held in State ex rel. M. Weingold & Co. v. Indus. Comm., 97 Ohio St.3d 44,
No. 12AP-804                                                                          28

2002-Ohio-5353, that substantial inconsistencies between two C-84s generated by the
same examination compel the same result as in Lopez.
       {¶75} This court followed the M. Weingold rationale in Genuine Parts, wherein
this court states:
              Contrary to the respondent's contention, Dr. Snell's C-84 is
              not evidence upon which the commission could rely because
              the C-84 is inconsistent with Dr. Snell's examination notes.
              Recognizing this inconsistency does not require the weighing
              of evidence as respondent argues. We give no greater weight
              to either the C-84 or the examination notes. We simply find,
              as did the magistrate, that they relate to the same
              examination and that they are inconsistent. The fact that the
              inconsistency arises from statements contained in two
              different documents rather than in one report is not
              significant. Again, it is clear that both documents were
              prepared by Dr. Snell and relate to the same physical
              examinations. As the magistrate notes, the same rationale
              was applied in State ex rel. M. Weingold & Co. v. Indus.
              Comm., 97 Ohio St.3d 44, 2002-Ohio-5353, which involved
              substantial inconsistencies between two C-84s arising from
              the same examination.

Id. at ¶ 4.

       {¶76} In Genuine Parts, Dr. Snell certified the allowed lumbosacral sprain as the
cause of TTD when his office notes failed to mention a lumbosacral sprain but did
discuss serious disallowed and non-allowed conditions.
       {¶77} In turn, the magistrate sets forth some basic law regarding final orders and
the commission's continuing jurisdiction under R.C. 4123.52 is in order.
       {¶78} By statute, SHOs are granted original jurisdiction to hear and decide
applications for PTD awards. R.C. 4121.34(B)(1). There is no right to administratively
appeal a decision of an SHO awarding PTD compensation. R.C. 4123.511(D) and (E).
See Industrial Commission Resolution No. R05-1-02 (effective September 1, 2005) and
No. R95-1-03 (effective March 21, 1995).
       {¶79} Thus, the SHO's order of January 13, 2010 at issue here was a final
commission order as of the time of its issuance.
       {¶80} The commission's power to reconsider a previous decision derives from its
general grant of continuing jurisdiction under R.C. 4123.52. State ex rel. Gobich v.
No. 12AP-804                                                                                 29

Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, ¶ 14.               This authority 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 an inferior tribunal. Id.
       {¶81} As noted by the commission in its order, the January 7, 2009 report of Dr.
Manuel provides for "activity restrictions" which are stated to be "[l]ifting, pushing, and
pulling of 50 pounds maximum." This activity restriction was found to be inconsistent
with the November 12, 2008 and January 14, 2009 reports upon which the SHO relied.
It can be noted that the November 12, 2008 report states:
              Mr. Knedler's physical abilities related to what he would be
              able to perform in an eight-hour work day are considerably
              less than what is generally determined to be a sedentary level
              of duty.

       {¶82} At first blush, the January 7, 2009 report is inconsistent with the
November 12, 2008 report. That is, the November 12, 2008 report finds relator able to
perform less than a sedentary level of work while the January 7, 2009 report finds
relator able to lift, push, and pull to a maximum of 50 pounds.
       {¶83} Ohio Adm.Code 4121-3-34(B)(2)(a) provides:
              "Sedentary work" means exerting up to ten pounds of force
              occasionally (occasionally: activity or condition exists up to
              one-third of the time) and/or a negligible amount of force
              frequently (frequently: activity or condition exists from one-
              third to two-thirds of the time) to lift, carry, push, pull, or
              otherwise move objects. Sedentary work involves sitting
              most of the time, but may involve walking or standing for
              brief periods of time. Jobs are sedentary if walking and
              standing are required only occasionally and all other
              sedentary criteria are met.

       {¶84} Ohio Adm.Code 4121-3-34(B)(2)(c) provides:
              "Medium work" means exerting twenty to fifty pounds of
              force occasionally, and/or ten to twenty-five pounds of force
              frequently, and/or greater than negligible up to ten pounds
              of force constantly to move objects. Physical demand
              requirements are in excess of those for light work.

       {¶85} It can be argued that Dr. Manuel's January 7, 2009 report suggests that
relator was then capable of "medium work" because of the 50-pound restriction. Also,
Dr. Manuel refers to "shoulder work" when limiting that work to "only occasional."
No. 12AP-804                                                                        30

       {¶86} It can be observed that the November 12, 2008 report, without so stating,
is premised upon Dr. Manuel's examinations that predate the report while the
January 7, 2009 report or office note is premised specifically upon the January 7, 2009
examination. That is, the November 12, 2008 and January 7, 2009 reports are not
based upon the same examination. Given that scenario, Genuine Parts, a case cited by
the commission in its July 13, 2010 order, is not directly on point.
       {¶87} Nevertheless, the SHO's reliance upon Dr. Manuel's November 12, 2008
report ignores Dr. Manuel's January 7, 2009 report of an examination performed
subsequent to the November 12, 2008. How can the January 7, 2009 report from the
same doctor who authored the November 12, 2008 report be ignored in favor of the
earlier report? It cannot.
       {¶88} The magistrate finds State ex rel. Conrad v. Indus. Comm., 88 Ohio St.3d
413 (2000), helpful to the analysis at this point. The Conrad case is summarized by the
magistrate in State ex rel. Clark v. Indus. Comm., 10th Dist. No. 11AP-47, 2012-Ohio-
937:
               [In Conrad], Dr. Rutherford had examined the claimant in
               October 1994 and found that "she would not benefit from
               any further surgical procedure at this time." One month
               later, the claimant had an acute exacerbation of her lower
               back condition that required emergency hospitalization. In
               mid-October 1995, the claimant's treating physician, Dr.
               Rohner, sought emergency authorization for surgery. The
               self-insured employer refused to authorize the surgery and
               the commission denied the claimant's request for
               authorization, citing Dr. Rutherford's report. The Conrad
               court held that Dr. Rutherford's report was not probative of
               the need for surgery following the 1994 exacerbation of the
               claimant's condition.

Id. at ¶ 54.

       {¶89} In Conrad, the court observed that Dr. Rutherford's report preceded "new
and changed circumstances" embodied by the exacerbation of the claimant's condition.
The Conrad court explains:
               To endorse the continued probative value of Dr. Rutherford's
               report, in view of the events occurring after his examination
               of claimant, gives his report a res judicata effect. This result
               was rejected in State ex rel. B.O.C. Group, GMC v. Indus.
No. 12AP-804                                                                          31

              Comm. (1991), 58 Ohio St.3d 199, 201, 569 N.E.2d 496, 498,
              quoting 3 Larson, Workers' Compensation Law (1989) 15-
              426, 272(99), to 15-426, 272(100), Section 79.72(f):

              " 'It is almost too obvious for comment that res judicata does
              not apply if the issue is claimant's physical condition or
              degree of disability at two entirely different times. * * * A
              moment's reflection would reveal that otherwise there would
              be no such thing as reopening for change in condition. The
              same would be true of any situation in which the facts are
              altered by a change in the time frame * * *.' "

              Given these principles and the facts presented, Dr.
              Rutherford's report was not probative of the need for surgery
              following the 1994 exacerbation of claimant's condition. The
              commission, therefore, abused its discretion in relying on
              that report to deny payment for the procedure.

Id. at 875.

       {¶90} Here, that Dr. Manuel examined relator after he issued his November 12,
2008 report is a new and changed circumstance following the issuance of the
November 12, 2008 report. On January 7, 2009, Dr. Manuel reports a very different
picture of relator's work status compared to the November 12, 2008 report.           On
January 7, 2009, the tenor of the office note is that relator is not incapable of work.
Under these circumstances, the SHO did not have the discretion to rely upon the
November 12, 2008 report and reject the subsequent one.            Conrad.     While the
November 12, 2008 and January 7, 2009 reports are not necessarily inconsistent under
Genuine Parts because they are premised upon different examinations, they clearly do
not present an opportunity for the SHO to choose the earlier report over the latter in
order to support the PTD award.
       {¶91} Accordingly, the magistrate concludes that the November 12, 2008 and
January 14, 2009 reports of Dr. Manuel are not some evidence upon which the SHO
could rely to support the PTD award. Reliance upon those reports was a clear mistake of
law that provided the prerequisite for the commission's exercise of continuing
jurisdiction. Conrad.
       {¶92} Apparently, at the July 13, 2010 hearing before the commission, relator
argued that Dr. Manuel's June 29, 2010 report must be viewed as a clarifying report
No. 12AP-804                                                                              32

under State ex rel. Chrysler Corp. v. Indus. Comm., 81 Ohio St.3d 158 (1998). In his
June 29, 2010 report, Dr. Manuel asserts that his January 7, 2009 report contains an
error regarding the so-called "activity restrictions," which are said to be "outdated."
       {¶93} According to Dr. Manuel's June 29, 2010 report, his January 7, 2009
report fails to "reflect the changes made on November 12, 2008."
       {¶94} In its July 13, 2010 order, the commission found that Dr. Manuel's
June 29, 2010 report was untimely submitted under Ohio Adm.Code 4121-3-34(C)(4)(a)
and (d).
       {¶95} Ohio Adm.Code 4121-3-34(C) sets forth the commission's rules for the
"Processing of applications for permanent and total disability."         Thereunder Ohio
Adm.Code 4121-3-34(c)(4) provides:
              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.

              ***

              Upon the request of either the injured worker or the
              employer and upon good cause shown, the hearing
              administrator may provide an extension of time, to obtain
              the medical evidence described in paragraphs (C)(4)(a) and
              (C)(4)(b) of this rule. Thereafter, no further medical evidence
              will be admissible other than additional medical evidence
              approved by a hearing administrator that is found to be
              newly discovered medical evidence that is relevant to the
              issue of permanent total disability and which, by due
              diligence, could not have been obtained under paragraph
              (C)(4)(a) or (C)(4)(b) of this rule.

       {¶96} Clearly, Dr. Manuel's June 29, 2010 report was not even in existence at the
January 13, 2010 hearing before the SHO whose order (mailed March 2, 2010) was at
issue before the commission on the question of continuing jurisdiction.
       {¶97} The issue before the commission at the July 13, 2010 hearing was whether
the SHO's order of January 13, 2010 contained a clear mistake of law upon which the
No. 12AP-804                                                                          33

commission could premise the exercise of its continuing jurisdiction. The July 13, 2010
hearing before the commission was not, as relator seems to suggest, another
opportunity for relator to submit additional evidence that might buttress the SHO's
order.    Moreover, relator cites to no authority suggesting that he can add to the
administrative record at a commission hearing on continuing jurisdiction to support the
very order under review by the commission. In short, relator's argument (Relator's
Amended Brief, 30-37.) that the commission abused its discretion in refusing to
consider Dr. Manuel's June 29, 2010 report lacks merit.
         {¶98} Based upon the above analysis, the magistrate concludes that the
commission did have continuing jurisdiction over the January 13, 2010 order of the
SHO, and the commission therefore properly vacated the January 13, 2010 SHO's order
that had awarded PTD compensation.
                   The Second Issue - The Absent Commissioner
         {¶99} Recently, in State ex rel. Stevens v. Indus. Comm., 10th Dist. No. 10AP-
1147, 2013-Ohio-2448, this court had occasion to determine whether the vote of
commissioner Abrams, who was absent from a hearing, deprived the relator, Sophia
Stevens, of due process of law under Ormet, essentially the issue as presented here. In
Stevens, this court found that Abrams' vote deprived Sophia Stevens of due process of
law in the commission's determination that she was not permanently and totally
disabled.
         {¶100} In Stevens, this court premised its decision on two prior cases from this
court involving Abrams' absence from a hearing. Those two cases are State ex rel. Sigler
v. Lubrizol Corp., 10th Dist. No. 10AP-255, 2011-Ohio-4917 and State ex rel. Evert v.
Indus. Comm., 10th Dist. No. 11AP-465, 2012-Ohio-2404.           In Stevens, this court,
speaking through its magistrate, had occasion to summarize Sigler and Evert, two
decisions that the Stevens court found controlling:
               In [Sigler], this court, applying Ormet, held that the
               claimant, Terry W. Sigler ("Sigler") was denied due process
               of law when commissioner Abrams, who was absent at a
               July 28, 2009 hearing, joined another commissioner in a
               two-to-one vote to exercise continuing jurisdiction over an
               SHO's order granting PTD compensation, and then denied
               the PTD application.
No. 12AP-804                                                                   34

           In Sigler, immediately above Abrams' signature on the order,
           Abrams indicated that he had discussed the matter with Bob
           Cromley who was present at the July 28, 2009 hearing.
           Cromley summarized the testimony, evidence and arguments
           presented at the hearing. Also, in the mandamus action, the
           commission filed an affidavit of Robert Cromley aka Bob
           Cromley in which Cromley averred that he has long been
           employed as a commission hearing officer and that, at times,
           he assists the commissioners when they preside at hearings.
           Cromley further averred that he took handwritten notes
           during the hearing and used those notes as a reference when
           discussing the case with Abrams.

           Finding that Abrams' vote denied Sigler due process of law,
           this court explained:

           Sigler testified at the hearing held before the two other
           commissioners. He testified about his physical condition. He
           testified about his attempts at vocational rehabilitation. He
           also testified about future medical procedures which were
           contemplated, including a second surgery to his injured
           back.

           The order signed by two of the commissioners is critical of
           Sigler's efforts at rehabilitation. Evaluating Sigler's past
           efforts at rehabilitation and his ability to benefit from future
           rehabilitation efforts seems to be key to the finding that
           Sigler is or is not entitled to PTD compensation. The third
           commissioner should have been in a position to evaluate
           Sigler's credibility on these issues, not rely on the
           impressions and notes of a commission employee and that
           employee's summaries of what occurred.

           ***

           Credibility, especially the credibility of a claimant, can be key
           to reaching a just decision in important workers'
           compensation cases. As long as the commission and the
           courts are willing to consider failure to fully pursue
           rehabilitation efforts as a negative factor in deciding PTD
           cases, the injured worker should be able to explain how he or
           she has done all he or she can do in pursuing rehabilitation.

           As long as there are disputes among medical professionals
           about a claimant's physical abilities, the claimant should be
           able to tell, in lay terms, what he or she can do. The
No. 12AP-804                                                                         35

             claimant's credibility may help determine which medical
             reports the commission finds persuasive.

             With today's technological capabilities, there is no reason the
             commission cannot have a complete record, even a video
             record, of the testimony before it. An absent commissioner
             could then make the appropriate decision without risking a
             violation of Due Process of Law. Id. at ¶ 7–8, 11–13.

             It can be further noted that, in [Evert], this court, citing
             Sigler, also found that the vote of an absent commissioner
             violated the claimant's right to due process of law. In Evert,
             this court states:

             The commissioners' responsibility as to fact finding is at the
             heart of our Sigler decision and the opinion of the Supreme
             Court of Ohio in Ormet which Sigler followed. Both
             decisions are founded in the requirement that government
             entities provide Due Process of Law.

             Counsel for the commission and BWC correctly note that the
             credibility of the claimant in the Sigler case was critical to a
             determination of whether or not Sigler, the claimant, was
             entitled to receive permanent total disability compensation.

             Id. at ¶ 7–8.

Stevens at ¶ 21-24.

      {¶101} Here, as earlier noted, Abrams provided the following explanation above
his signature on the July 13, 2010 order:
             On 08/04/2010, I discussed this mater with Cindy Albrecht,
             who was present at the 07/13/2010 hearing. Ms. Albrecht
             summarized the testimony, evidence and arguments
             presented at hearing. After this discussion and a review of all
             the evidence contained within the claim file, I vote to grant
             continuing jurisdiction and deny the IC-2, Application for
             Permanent      Total    Disability     Compensation,     filed
             01/22/2009.

      {¶102} The July 13, 2010 order indicates that "Mr. and Mrs. Knedler" appeared.
In the body of the commission's order, there is no indication that relator or his spouse
testified at the hearing. The July 13, 2010 hearing was not recorded and so we do not
have a hearing transcript.
No. 12AP-804                                                                            36

       {¶103} Abrams' statement that Ms. Albrecht "summarized the testimony" is
puzzling because the order itself fails to reference any testimony from anyone at the
hearing.
       {¶104} Given Abrams' statement, this magistrate cannot find that Mr. Knedler did
not testify. Obviously, if he did testify, we do not know what he said.
       {¶105} Based upon the foregoing analysis, the magistrate concludes that
commissioner Abrams' absence at the July 13, 2010 hearing deprived relator of due
process of law that was not remedied by his discussion with Ms. Albrecht.
       {¶106} Abrams' absence at the July 13, 2010 hearing deprived relator of due
process of law only with respect to that portion of the commission's July 13, 2010 order
that determined on the merits relator's application for PTD compensation. That is so
because the merit determination of the application required the commissioners to weigh
the medical evidence and to analyze the non-medical factors where witness credibility
may have been at issue.
       {¶107} However, Abrams absence from the July 13, 2010 hearing did not deprive
relator of due process of law with respect to the commission's determination that the
January 13, 2010 order of the SHO contained a clear mistake of law. That is so because
the determination of a clear mistake of law did not rest upon witness credibility at the
July 13, 2010 hearing. Moreover, had the commission failed to exercise its continuing
jurisdiction over the SHO's order of January 13, 2010, respondent employer would be
entitled to a writ of mandamus ordering the commission to vacate the SHO's order of
January 13, 2010 due to the clear mistake of law. See State ex rel. B & C Machine Co. v.
Indus. Comm., 65 Ohio St.3d 538 (1992) (Expanding the commission's continuing
jurisdiction to include a clear mistake of law, the court explains the relationship between
mandamus and the exercise of continuing jurisdiction over a clear mistake of law.).
       {¶108} As earlier noted, on November 8, 2010, the bureau mailed an order
declaring an overpayment of PTD compensation starting November 12, 2008.
$39,537.90 was stated to be the overpayment amount.
       {¶109} Following a March 3, 2011 hearing, an SHO issued an order finding that
relator is entitled to keep the payments for the period November 12, 2008 through
August 4, 2010. The SHO further found that the overpayment beginning August 4, 2010
should be changed to the statutory surplus fund.
No. 12AP-804                                                                             37

         {¶110} On June 14, 2011, the three-member commission mailed an interlocutory
order.
         {¶111} Following a August 2, 2011 hearing, the three-member commission issued
an order exercising continuing jurisdiction over the SHO's order of March 3, 2011 and
vacating the order.      The commission determined that the entire overpayment of
$39,537.90 must be recouped pursuant to R.C. 4123.511(K).
         {¶112} Given that the portion of the commission's July 13, 2010 order that
determined the merits of relator's PTD application must be vacated, and that further
administrative proceedings must be conducted, it is clear that the bureau's order of
November 8, 2010 declaring an overpayment cannot stand at this point in the
proceedings. Likewise, the commission orders that followed the bureau's November 8,
2010 declaration of overpayment cannot stand. The commission must therefore vacate
the bureau's November 8, 2010 order and the several orders that follow the bureau's
order.
         {¶113} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate that portion of its July 13, 2010 order
that determines that relator is capable of sustained remunerative employment, and
denies the PTD application on that basis, and to conduct an additional hearing on
relator's PTD application with all three commissioners present and participating, or
conduct an additional hearing with sufficient record of the proceedings such that the
necessary credibility determinations can be made by all the commissioners. Also, the
writ must order that the commission vacate the bureau's November 8, 2010 order
declaring an overpayment and the several orders that follow the bureau's order.


                                           /S/ MAGISTRATE
                                           KENNETH W. MACKE
                                 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).
