[Cite as State ex rel. Black v. CVS Pharmacy, Inc.,, 2015-Ohio-4868.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

[State ex rel.] Sharon Black,                           :

                 Relator,                               :

v.                                                      :                  No. 15AP-120

CVS Pharmacy, Inc., Revco, D.S., Inc.                   :               (REGULAR CALENDAR)
and Industrial Commission of Ohio,
                                                        :
                 Respondents.
                                                        :


                                            D E C I S I O N

                                   Rendered on November 24, 2015


                 Michael J. Muldoon, for relator.

                 Thomas & Company, L.P.A., and William R. Thomas, for
                 respondent CVS Pharmacy, Inc., Revco, D.S., Inc.

                 Michael DeWine, Attorney General, and Stephen D.
                 Playmale, for respondent Industrial Commission of Ohio.


                                    IN MANDAMUS
                        ON OBJECTIONS TO MAGISTRATE'S DECISION

DORRIAN, J.
        {¶ 1}    In this original action, relator, Sharon Black ("relator"), requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order exercising its continuing jurisdiction and finding that her claim should not be
allowed for a disc herniation at T12-L1 when she had already filed a notice of appeal from
the disallowance of other conditions, pursuant to R.C. 4123.512, and ordering the
commission to reinstate its order allowing her claim for disc herniation at T12-L1.
        {¶ 2} Pursuant to Civ.R. 53(D) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
No. 15AP-120                                                                            2

of fact and conclusions of law, which is appended hereto. The magistrate concluded that
relator has an adequate remedy in the ordinary course of law by way of appeal to the
common pleas court and, as such, is not entitled to a writ of mandamus. Accordingly, the
magistrate recommended that this court deny the requested writ of mandamus.
        {¶ 3} No objections have been filed to the magistrate's findings of fact. After an
independent review of the same, we adopt those findings of fact as our own.
Relator objects to the magistrate's conclusion that she has an adequate remedy of law by
way of an appeal to the common pleas court and argues that mandamus is the appropriate
remedy pursuant to the Supreme Court of Ohio precedent in State ex rel. Saunders v.
Metal Container Corp., 52 Ohio St.3d 85 (1990). Relator argues that, because she had
already appealed the disallowance of other claims to the common pleas court, the
commission did not have jurisdiction to invoke its continuing jurisdiction to deny her
claim for disc herniation at T12-L1.
        {¶ 4} In Saunders, the commission's district hearing officer ("DHO") issued an
order allowing a condition described as "back." At the time, R.C. 4121.36(B) required the
order allowing a condition to contain a "description of the part of the body and nature of
the disability recognized in the claim."    The commission subsequently attempted to
correct the error by amending the part of the body affected from "back" to "lumbosacral"
and "lumbar spine."
        {¶ 5} The Supreme Court noted that a statutorily defective allowance, such as the
one issued by the DHO, constituted a "mistake," which permitted the commission,
pursuant to R.C. 4123.52, to invoke its continuing jurisdiction to correct.       It held,
however, that the commission could have simply amended the allowed condition to reflect
"back sprain," but, instead, the commission went too far in narrowing the named body
part from "back" to "lumbosacral" and "lumbar spine." The Supreme Court held that,
although the commission was permitted to invoke continuing jurisdiction to correct the
mistake, the continuing jurisdiction did not allow the extent of the correction attempted
here.
        {¶ 6} Relevant here, the Supreme Court in Saunders also held that mandamus
was the proper remedy to address the commission's improper extension of continuing
jurisdiction. The Supreme Court noted that "[t]he relevant question here is not one of
No. 15AP-120                                                                                  3

appellee's right to participate * * * for a 'back' injury but is instead whether a mistake
sufficient to invoke the continuing jurisdiction provisions of R.C. 4123.52 existed. We
find the latter question to be the proper subject matter for a writ of mandamus." Id. at 86.
       {¶ 7} Relator suggests that Saunders controls. We disagree. The question before
us now is not whether a mistake sufficient to invoke the continuing jurisdiction provisions
of R.C. 4123.52 existed.    The crux of relator's argument here, however, is that the
institution of an appeal of the disallowance of other claims, pursuant to R.C. 4123.519,
deprived the commission of jurisdiction to even consider whether there was a mistake
sufficient to invoke it's continuing jurisdiction, pursuant to R.C. 4123.52, regarding the
disc herniation at T12-L1 claim. The issue here is a precursor to the issue of whether a
mistake existed sufficient to invoke the continuing jurisdiction provisions of R.C. 4123.52.
       {¶ 8} Relator argues that the magistrate's reliance on State ex rel. Alhamarshah
v. Indus. Comm., 142 Ohio St.3d 524, 2015-Ohio-1357, is misplaced.        In Alhamarshah,
the commission accepted documentation from the employer and determined that it
substantially complied with the statutory requirements for a notice of an appeal of the
Bureau of Worker's Compensation's initial allowance of a claim. The Supreme Court of
Ohio noted that "[t]his decision conferred jurisdiction on the commission to proceed to
consider the merits of the purported employer's appeal" and that such exercise of
jurisdiction "resulted in a decision denying the claimant's right to participate in the
worker's compensation system."       The Supreme Court held that "[c]onsequently, the
decision allowing the appeal to proceed was essential to the ultimate determination that
denied the claimant's participation in the worker's compensation system. As such, the
commission's decision to accept the appeal as valid was appealable pursuant to R.C.
4123.512." (Emphasis added.) Id. at ¶ 10-12.     Likewise, here, the commission's decision
to proceed, while the appeal of other disallowed claims was pending in the common pleas
court, was essential to the ultimate determination that denied relator's participation in the
workers' compensation system for the disc herniation at T12-L1.
       {¶ 9} We find the magistrate properly relied upon Alhamarshah, and, for the
reasons stated above and in the magistrate's decision, we find no merit to relator's
objections.
       {¶ 10} Accordingly, relator's objections to the magistrate's decision are overruled.
No. 15AP-120                                                                         4

      {¶ 11} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find that the magistrate has
properly determined the pertinent facts and applied the appropriate law. We, therefore,
overrule relator's objections to the magistrate's decision and adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained
therein. Accordingly, the requested writ of mandamus is hereby denied.
                                                     Objections overruled; writ denied.
                         BROWN, P.J., and TYACK, J., concur.
                               _________________
No. 15AP-120                                                                              5

                                       APPENDIX
                          IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT

[State ex rel.] Sharon Black,                 :

               Relator,                       :

v.                                            :                    No. 15AP-120

CVS Pharmacy, Inc., Revco, D.S., Inc.         :                (REGULAR CALENDAR)
and Industrial Commission of Ohio,
                                              :
               Respondents.
                                              :



                          MAGISTRATE'S DECISION

                                 Rendered on August 20, 2015



               Michael J. Muldoon, for relator.

               Thomas & Company, L.P.A., and William R. Thomas, for
               respondent CVS Pharmacy, Inc., Revco, D.S., Inc.

               Michael DeWine, Attorney General, and Stephen D.
               Playmale, for respondent Industrial Commission of Ohio.


                                      IN MANDAMUS

       {¶ 12} Relator, Sharon Black, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order exercising its continuing jurisdiction, and finding that
her claim should not be allowed for a disc herniation at T12-L1 when she had already filed
a notice of appeal from the disallowance of other conditions pursuant to R.C. 4123.512,
No. 15AP-120                                                                                          6

and ordering the commission to reinstate its order allowing her claim for disc herniation
at T12-L1.
Findings of Fact:
          {¶ 13} 1. Relator alleged that she sustained a work-related injury on November 27,
2012, and that she hurt her back. Respondent, CVS Pharmacy, Inc., Revco, D.S., Inc.
("CVS"), as a self-insured employer, certified her claim for lumbar strain and thoracic
strain.
          {¶ 14} 2. On March 19, 2014, relator filed a C-86 motion asking that her workers'
compensation claim be additionally allowed for the following conditions:
                "847.1 thoracic ba[c]k strain; 847.2 lumbar back strain;
                846.0 lumbosacral strain" by direct causation. "7252.10
                lumbar disc displacement; 725.11 thoracic disc displacement;
                724.3 sciatica" by substantial aggravation of preexisting
                condition.

          {¶ 15} 3. The only piece of evidence relator submitted was the February 25, 2014
report of Steven Parsons, M.D., whose report simply states that relator's claim should
include the above listed diagnoses.
          {¶ 16} 4. Relator's motion was heard before a district hearing officer ("DHO") on
June 27, 2014. After finding that CVS had already allowed her claim for thoracic back
strain and lumbar back strain, the DHO found that her request to have those conditions
allowed was moot. Thereafter, the DHO determined that relator had not met her burden
of proving that she be permitted to have the other conditions allowed in her claim,
stating1:
                It is noted that the conditions of THORACIC BACK
                STRAIN and LUMBAR BACK STRAIN have been
                accepted by the Self-Insuring Employer and are therefore
                moot.

                The  claim is specifically DISALLOWED   for
                "LUMBOSACRAL      STRAIN;      SUBSTANTIAL
                AGGRAVATION OF PRE-EXISTING LUMBAR DISC
                DISPLACEMENT; SUBSTANTIAL AGGRAVATION


1 While the DHO order cites to additional medical evidence, i.e., reports from Drs. Friedman and Shadel,

MRI reports, and office notes of Dr. Miely, none of those documents are contained in the stipulation of
evidence.
No. 15AP-120                                                                           7

               OF     PRE-EXISTING      THORACIC                         DISC
               DISPLACEMENT; SCIATICA."

               The District Hearing Officer finds that the medical evidence
               fails to persuasively support that these conditions are
               causally related to the 11/27/2012 industrial injury. The
               District Hearing Officer relies on the report of Dr. Freedman
               dated 06/25/2014 as well as reports of Dr. Shadel dated
               12/31/2013 and 09/18/2013. These physicians note the
               extensive pre-existing treatment including surgery in 2008
               and 2010 for the lumbar spine. Dr. Freedman opines that the
               medical evidence fails to support the lumbosacral strain as
               being causally related to the industrial injury and that the
               medical evidence fails to support a substantial aggravation of
               pre-existing lumbar disc displacement and thoracic disc
               displacement and sciatica. The District Hearing Officer also
               notes the office notes of Dr. Miely dated 01/24/2013 and
               03/19/2013 indicate the MRI of the lumbar spine did not
               show any particular abnormalities noting no motor or
               sensory deficits on examination and that the thoracic spine
               MRI was normal.

(Emphasis sic.)
       {¶ 17} 5. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on August 20, 2014. The SHO modified the prior DHO order, agreeing that
relator's claim should not be allowed for the additional conditions of lumbosacral strain
and sciatica. The SHO dismissed the requested additional allowances of substantial
aggravation of pre-existing lumbar disc displacement and thoracic disc displacement as
vague because no levels were listed. However, the SHO determined that relator's claim
should be additionally allowed for disc herniation at T12-L1, stating:
               [I]t is the order of the Staff Hearing Officer that * * * this
               claim     is    additionally     ALLOWED          for  "DISC
               HERNIATION T12-L1" based on the 01/15/2013 lumbar
               MRI, the 03/13/2013 thoracic MRI, the 01/24/2013 office
               note of Dr. Miely which notes "most of her pain is at the level
               of the mid thoracic spine at the level of the bra strap," the
               02/25/2014 report of Dr. Parsons and the testimony of the
               Injured Worker who indicated that she was injured lowering
               80 to 90 pounds (a 40 pound tote with additional 40 to 50
               pounds of sugar that had slid onto the tote) from above her
               head to the floor. The Staff Hearing Officer finds that this
               condition is a result of the 11/27/2012 incident.
No. 15AP-120                                                                                8

(Emphasis sic.)
       {¶ 18} 6. CVS filed an appeal on grounds the SHO allowed relator's claim for a
condition she not only did not request, but for which CVS did not have notice.
       {¶ 19} 7. In an order mailed September 16, 2014, the commission refused CVS's
appeal.
       {¶ 20} 8. On September 24, 2014, CVS filed a request for reconsideration arguing
that the SHO's order contained a clear mistake of law:
               We represent the self-insured employer, CVS Pharmacy, with
               regard to the above-referenced matter. CVS urges the
               Industrial Commission of Ohio to reconsider its refusal
               order, mailed September 16, 2014. An additional hearing is
               warranted pursuant to Industrial Commission Resolution
               08-1-01 because the Staff Hearing Officer's order contains a
               clear mistake of law. Specifically, the Staff Hearing Officer
               additionally allowed the claim for Disc Herniation T12-L1.
               However, this condition was neither requested by the
               claimant nor was it noticed on the Notice of Hearing. "As a
               matter of law, at hearings with notice, consideration shall be
               confined to the issues presented in the adjudication of the
               claim…" OAC 4121-3-09(C)(5). Not only was the additional
               condition of Disc Herniation T12-L1 not noticed, this issue
               was never even discussed at the hearing. Therefore, the
               employer has been prejudiced.

               Accordingly, the SHO's order additionally allowing this claim
               for a Disc Herniation T12-L1 constitutes a mistake of law.
               More important, the employer was never granted an
               opportunity to contest the condition of Disc Herniation T12-
               L1.

       {¶ 21} 9. On October 7, 2014, relator filed a notice of appeal pursuant to section
R.C. 4123.512 in the Franklin County Court of Common Pleas ("common pleas court")
arguing that she is entitled to participate in the Ohio workers' compensation system for
the conditions which the commission disallowed.
       {¶ 22} 10. In an order mailed October 23, 2014, the commission first denied CVS's
request for reconsideration finding that the request failed to meet the criteria of Industrial
Commission Resolution R08-1-01 and, thereafter, the commission found that the
evidence on file was sufficient to warrant adjudication of a probable clear mistake of fact
and law in the SHO's order on the following grounds:
No. 15AP-120                                                                            9

               Specifically, it is arguable that in the Staff Hearing Officer
               order, issued 08/22/2014, the Staff Hearing Officer
               additionally allowed the claim for disc herniation T12-L1 on a
               direct causation basis without citing to medical evidence
               supporting recognition of the condition under such theory of
               causation.

         {¶ 23} The commission vacated the prior SHO's order, invoked its continuing
jurisdiction, and determined that relator's appeal filed pursuant to R.C. 4123.512 only
divested the commission of jurisdiction to consider the merits of her request for
additional allowances of lumbosacral strain and sciatica, and noted that those issues
would not be considered at the hearing.
         {¶ 24} 11. The commission held a hearing on January 6, 2015, and, in a corrected
order mailed March 4, 2015, determined that grounds existed for the exercise of
continuing jurisdiction, on a sua sponte basis, due to a clear mistake of law in the SHO's
order.    The commission granted CVS's appeal, vacated the order of the SHO, and
specifically disallowed relator's claim for disc herniation at T12-L1, stating:
               It is further the order of the Commission the Injured
               Worker's C-86 Motion, filed 03/19/2014, seeking additional
               allowance * * * [is] denied to the extent and in the manner
               specified below. The claim is specifically DISALLOWED
               for DISC HERNIATION AT T12-L1. In reaching this
               portion of the decision, the Commission relies upon the
               06/25/2014 narrative of Paul Freedman, M.D., as well as the
               12/31/2013 addendum report of Robert Shadel, M.D. This
               medical evidence indicates the disc condition was not
               directly caused by the industrial injury of 11/27/2012.

(Emphasis sic.)
         {¶ 25} The commission specifically rejected relator's argument that the
commission had been divested of jurisdiction because of relator's appeal, stating:
               At the outset of his presentation at the 01/06/2015 hearing
               before the Commission, the Injured Worker's representative
               argued the Commission was without jurisdiction to proceed
               on the matter noticed for hearing because the Injured
               Worker had previously appealed the underlying Staff
               Hearing Officer order of 08/22/2014, into the Court of
               Common Pleas of Franklin County on 10/02/2014. This
               appeal, the Injured Worker's representative argued, divested
No. 15AP-120                                                                               10

               the Commission of authority to further address any of the
               findings in that order.

               The Commission rejects this argument. The Injured
               Worker's appeal into court pursuant to R.C. 4123.512 only
               pertained to the conditions of "lumbosacral strain and
               sciatica," which were denied by the Staff Hearing Officer
               order of 08/22/2014. Because of this fact, the Commission
               finds it only lost jurisdiction with respect to those specific
               conditions and otherwise retains jurisdiction to address the
               other issues the Staff Hearing Officer order of 08/22/2014
               adjudicated.

       {¶ 26} 12. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 27} For the reasons that follow, it is this magistrate's decision that relator has
not demonstrated that the commission abused its discretion when it exercised its
continuing jurisdiction and this court should deny relator's request for a writ of
mandamus.
       {¶ 28} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 29} Relator contends that the commission did not have jurisdiction to disallow
her claim for disc herniation at T12-L1 because, at the time the commission made this
determination, relator had an appeal pending in the common pleas court pursuant to R.C.
4123.512 and was challenging the commission's earlier determination which disallowed
her claim for lumbosacral strain and sciatica. Relator asserts that, when she filed her
notice of appeal, the commission lost jurisdiction to take further administrative
proceedings in reference to her claim. Further, relator asserts that, once the commission
denied the employer's request for reconsideration, the commission was without
jurisdiction to sua sponte reconsider the SHO's order which allowed her claim for disc
herniation T12-L1.
       {¶ 30} Recently, the Supreme Court of Ohio decided State ex rel. Alhamarshah v.
Indus. Comm., 142 Ohio St.3d 524, 2015-Ohio-1357. In that case, Mustafa Alhamarshah
No. 15AP-120                                                                              11

alleged that he sustained a work-related injury while working as a laborer for Mohamed
Salem, d.b.a. Ballmohd, L.L.C. ("Salem"). The BWC allowed the claim against Salem as
the employer and ordered the payment of medical benefits and temporary total disability
("TTD") compensation. The order informed the parties that the decision would become
final unless a written appeal was received within 14 days and further advised the parties to
contact "Jolene M" at the BWC's Columbus Service Office with any questions. Id. at ¶ 4.
       {¶ 31} With the help of a friend, Salem telephoned Jolene about filing an appeal.
Salem asserted that there was no employer-employee relationship. The documents faxed
to the BWC failed to include the claim number or the date of the order being appealed.
Upon receipt, the words "construe as appeal" were hand-written on the cover page and
forwarded to the appeals section of the commission. Id. at ¶ 5.
       {¶ 32} Ultimately, the commission concluded that Salem's appeal substantially
complied with the requirements of R.C. 4123.511(F) and further found that there was no
evidence that Alhamarshah had been prejudiced by any omission in the notice of appeal.
The commission then disallowed the claim on the merits, finding that Alhamarshah was
not an employee of Salem and the commission affirmed that order.               Alhamarshah
appealed to the Franklin County Court of Common Pleas pursuant to R.C. 4123.512 and
filed a complaint for a writ of mandamus in the Franklin County Court of Appeals,
alleging that the commission's order determining that Salem's administrative appeal was
valid was an abuse of discretion and contrary to law.
       {¶ 33} Ultimately, the Supreme Court of Ohio determined that Alhamarshah was
not entitled to relief in mandamus because he had an adequate remedy in the ordinary
course of law by way of appeal under R.C. 4123.512, stating:
               Once the commission has issued a final order determining
               the claimant's entitlement to participate in the workers'
               compensation fund, any party may appeal the order, except
               for decisions as to the extent of disability, to the court of
               common pleas pursuant to R.C. 4123.512. R.C. 4123.511(E)
               and 4123.512(A); State ex rel. Liposchak v. Indus. Comm.,
               90 Ohio St.3d 276, 278–279, 737 N.E.2d 519 (2000). This
               court has held that decisions determining an employee's
               right to participate in the workers' compensation system
               because of a specific injury or occupational disease are
               appealable to the court of common pleas. Felty v. AT & T
               Technologies, Inc., 65 Ohio St.3d 234, 602 N.E.2d 1141
No. 15AP-120                                                                          12

                  (1992), paragraph one of the syllabus; Afrates v. Lorain, 63
                  Ohio St.3d 22, 26, 584 N.E.2d 1175 (1992).

                  The lack of an adequate remedy in the ordinary course of the
                  law is a necessary prerequisite for relief in mandamus. State
                  ex rel. Consolidation Coal Co. v. Indus. Comm., 18 Ohio
                  St.3d 281, 284, 480 N.E.2d 807 (1985), citing State ex rel.
                  Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 88, 218 N.E.2d 428
                  (1966). When the relator has a plain and adequate remedy at
                  law by way of appeal, courts lack authority to exercise
                  jurisdictional discretion and must deny the writ, regardless
                  of whether the relator used the remedy. Id.; State ex rel.
                  Davet v. Sutula, 8th Dist. Cuyahoga No. 96548, 2011-Ohio-
                  2803, 2011 WL 2409641, ¶ 10. This is a threshold question
                  that we must consider even when the court of appeals has
                  not addressed the issue. State ex rel. Woodbury v. Spitler,
                  40 Ohio St.2d 1, 3, 318 N.E.2d 165 (1974).

                  In this case, the commission decided that the documentation
                  submitted on behalf of the purported employer substantially
                  complied with the statutory requirements for a notice of an
                  appeal of the bureau's initial order. This decision conferred
                  jurisdiction on the commission to proceed to consider the
                  merits of the purported employer's appeal. The commission's
                  exercise of jurisdiction resulted in a decision denying the
                  claimant's right to participate in the workers' compensation
                  system. Consequently, the decision allowing the appeal to
                  proceed was essential to the ultimate determination that
                  denied the claimant's participation in the workers'
                  compensation system. As such, the commission's decision to
                  accept the appeal as valid was appealable pursuant to R.C.
                  4123.512. See Consolidation Coal Co. at 284-285, 480
                  N.E.2d 807.

Id. at ¶ 10-12.
       {¶ 34} Recently, in State ex rel. Johnson v. OSU Cancer Research Hosp., 10th Dist.
No. 14AP-430, 2015-Ohio-3249, this court addressed the applicability of the recent
Supreme Court of Ohio decision in Alhamarshah.
       {¶ 35} Eleanorene Johnson suffered an industrial injury in 2010 and her claim was
allowed for the following physical condition: sprain lumbosacral. On August 23, 2013,
Johnson filed a C-86 motion requesting that her claim be additionally allowed for the
following psychological condition: major depression, single episode, non-psychotic,
severe. A DHO disallowed Johnson's request. The matter came before the SHO on
No. 15AP-120                                                                              13

October 18, 2013. The SHO granted Johnson's request and additionally allowed her claim
to include the requested psychological condition. OSU attempted to appeal the SHO's
order, but the commission refused the appeal.
       {¶ 36} OSU then filed a request for reconsideration with the commission. On
January 9, 2014, the commission issued an order vacating the SHO's order and setting the
matter for a hearing. The commission concluded that the SHO's order contained a clear
mistake of law, as it failed to find that the requested psychological condition was causally
related to the allowed physical condition. The commission accordingly granted OSU's
request for reconsideration, and denied Johnson's request for the additional allowance.
       {¶ 37} Johnson filed a mandamus action in this court asserting that the
commission abused its discretion when it granted OSU's request for reconsideration and
asked that the commission be ordered to reinstate the SHO's order which allowed her
claim for the psychological condition.
       {¶ 38} OSU argued that this court did not have jurisdiction to hear the matter
asserting that it was a right to participate and that Johnson had an adequate remedy at
law. As OSU asserted, if this court found the commission abused its discretion when it
determined the SHO's order contained a clear mistake of law, Johnson's claim would be
additionally allowed for a psychological condition and OSU would have to challenge that
allowance in common pleas court.
       {¶ 39} This court's magistrate found this court did have jurisdiction finding that
the commission's determination that it had continuing jurisdiction was reviewable here in
mandamus and could not be challenged elsewhere. Thereafter, the magistrate found that
the commission did not abuse its discretion when it exercised its continuing jurisdiction.
       {¶ 40} OSU filed an objection to the magistrate's decision and argued that,
pursuant to the Supreme Court of Ohio's recent decision in Alhamarshah, this court
should find that mandamus relief was inappropriate because Johnson had an adequate
remedy at law.     Finding that the commission's decision to exercise its continuing
jurisdiction resulted in a decision which denied Johnson the right to participate in the
workers' compensation system, this court found that the commission's decision was
"essential to the ultimate determination that denied [Johnson's] participation in the
workers' compensation system," and mandamus relief was inappropriate as Johnson had
No. 15AP-120                                                                            14

an adequate remedy in the ordinary course of law by way of an appeal under R.C.
4123.512. Id. at ¶ 12.
       {¶ 41} In the present case, just as in Alhamarshah, the commission has denied
relator's request to participate (for a specific condition) in the workers' compensation
system. As in Alhamarshah, relator has appeals pending in the common pleas court
pursuant to R.C. 4123.512. As in Alhamarshah, relator has also filed a mandamus action
in this court asserting that the commission's orders, which ultimately denied her the right
to participate, constitute an abuse of discretion and asks this court to order the
commission to consider her request to participate in the workers' compensation system
on its merits. As in Alhamarshah, the commission's orders here were essential to the
ultimate determination that denied relator's participation in the workers' compensation
system and is appealable pursuant to R.C. 4123.512.
       {¶ 42} Based on the foregoing, it is this magistrate's decision that relator has an
adequate remedy in the ordinary course of law by way of appeal to the common pleas
court and, as such, is not entitled to a writ of mandamus.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA


                               NOTICE TO THE PARTIES

               Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
               error on appeal the court's adoption of any factual finding or
               legal conclusion, whether or not specifically designated as a
               finding of fact or conclusion of law under Civ.R.
               53(D)(3)(a)(ii), unless the party timely and specifically objects
               to that factual finding or legal conclusion as required by Civ.R.
               53(D)(3)(b).
