[Cite as State ex rel. Lawson v. Indus. Comm., 2014-Ohio-2784.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio ex rel. Cheryl L. Lawson,                :

                 Relator,                              :

                                                       :
v.                                                                   No. 13AP-834
                                                       :
Industrial Commission of Ohio and                                 (REGULAR CALENDAR)
Allen Metropolitan Housing Authority,                  :

                Respondents.                           :


                                         D E C I S I O N

                                      Rendered on June 26, 2014


                Larrimer and Larrimer, and Thomas L. Reitz, for relator.

                Michael DeWine, Attorney General, and Lisa R. Miller, for
                respondent Industrial Commission of Ohio.

                                            IN MANDAMUS

CONNOR, J.
        {¶ 1} Relator, Cheryl L. Lawson, has filed this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying relator's request that the commission exercise its continuing
jurisdiction, and to order the commission to exercise its continuing jurisdiction.
        {¶ 2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision,
which includes findings of fact and conclusions of law and is appended to this decision.
The magistrate concluded that, because relator did not timely appeal the May 4, 2012
order of the Bureau of Workers' Compensation ("BWC") denying relator's application to
participate in the BWC fund, relator was not entitled to the requested writ of mandamus
No. 13AP-834                                                                               2


as she had an adequate remedy in the ordinary course of the law. See State ex rel.
Boskovic Gen. Contrs. v. Indus. Comm., 10th Dist. No. 09AP-711, 2010-Ohio-2557, ¶ 6
(noting that "[a] failure to pursue an adequate administrative remedy bars mandamus
relief"). Despite that finding, the magistrate also addressed relator's argument that the
commission abused its discretion when it refused to exercise its continuing jurisdiction,
and concluded that the commission did not abuse its discretion. Accordingly, the
magistrate recommended that this court deny the requested writ.
       {¶ 3} No objections to the magistrate's decision have been filed. We have
conducted an independent review of the magistrate's decision.
       {¶ 4} Finding no error in the magistrate's findings of fact, we adopt the
magistrate's findings of fact as our own. Finding no error in the magistrate's conclusion
that relator was not entitled to the requested writ because she had an adequate remedy at
law through an appeal of the BWC's May 4, 2012 order, we adopt that portion of the
magistrate's conclusions of law as our own.
       {¶ 5} However, as the magistrate determined that relator had an adequate
remedy at law, the magistrate's further conclusion that the commission did not abuse its
discretion in refusing to exercise its continuing jurisdiction amounts to an advisory
opinion. As this court is loath to issue an advisory opinion, we do not adopt the
magistrate's conclusions of law finding that the commission did not abuse its discretion.
See Harper v. Lefkowitz, 10th Dist. No. 09AP-1090, 2010-Ohio-6527, ¶ 35 (noting that
this court "is loathe to" issue an "advisory opinion"); N. Canton v. Hutchinson, 75 Ohio
St.3d 112, 114 (1996) (noting that "[i]t is, of course, well settled that this court will not
indulge in advisory opinions"); State ex rel. Louthan v. Akron, 9th Dist. No. 23351, 2007-
Ohio-241, ¶ 8.
       {¶ 6} Because relator had an adequate remedy at law, and in accordance with the
magistrate's recommendation, we deny the requested writ of mandamus.
                                                                Writ of mandamus denied.


                             TYACK and BROWN, JJ., concur.
                                 _________________
No. 13AP-834                                                                            3


                                   APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State of Ohio ex rel. Cheryl L. Lawson,      :

              Relator,                       :

v.                                           :                      No. 13AP-834

Industrial Commission of Ohio and            :              (REGULAR CALENDAR)
Allen Metropolitan Housing Authority,
                                             :
             Respondents.
                                             :



                         MAGISTRATE'S DECISION

                              Rendered on March 27, 2014


             Larrimer and Larrimer, and Thomas L. Reitz, for relator.

             Michael DeWine, Attorney General, and Lisa R. Miller, for
             respondent Industrial Commission of Ohio.


                                  IN MANDAMUS

      {¶ 7} Relator, Cheryl L. Lawson, 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 wherein the commission denied her request to exercise
its continuing jurisdiction and ordering the commission to do so.
Findings of Fact:
      {¶ 8} 1. Relator was an employee of respondent Allen Metropolitan Housing
Authority ("AMHA").
      {¶ 9} 2. According to the stipulation of evidence, relator was working as a
receptionist at AMHA on March 27, 2012. AMHA was being investigated by the Ohio
No. 13AP-834                                                                               4


Ethics Commission based upon an anonymous tip that staff members of AMHA were
destroying documents.
         {¶ 10} 3. On March 27, 2012, officers from the Lima Police Department arrived at
AMHA and demanded access to the building. Relator refused to unlock the door and
allow the officers access.
         {¶ 11} 4. A co-worker opened the door and, after the officers entered, relator was
handcuffed and arrested for refusing to allow the officers access.
         {¶ 12} 5. On April 5, 2012, relator filed a First Report of an Injury, Occupational
Disease or Death ("FROI-1") form alleging that she sustained cervical and thoracic
injuries when she was arrested. Specifically, relator alleged her injuries occurred as
follows:
               Police shoved me up again[s]t the wall to handcuff me and
               put arms up high. Employer told them to be careful[.] I have
               problems.

         {¶ 13} 6. Relator's supervisor Anna M. Schnippel certified the validity of relator's
claim.
         {¶ 14} 7. On April 10, 2012, the Special Investigation Department ("SID") of the
Ohio Bureau of Workers' Compensation ("BWC") received an allegation from an
anonymous source informing them that relator had been encouraged by a director and
assistant director of her department to file a claim with the BWC regarding an injury she
allegedly sustained while being arrested at work on March 27, 2012.
         {¶ 15} 8. Based upon this allegation, the matter was investigated.
         {¶ 16} 9. Three individuals witnessed relator's arrest, Sergeant Charles Godfrey,
and two employees of AMHA, Bruce Hilty and Tiffany Elchert. While relator asserted that
she had been shoved up against a wall and her arms had been placed high above her head
while she was arrested, these witnesses gave a different account. According to the final
SID report dated May 29, 2012, Sergeant Godfrey described relator's arrest as follows:
               On Tuesday, March 27, 2012, officers received information
               suspects of an ongoing criminal investigation involving
               employees of MET Housing in Lima, Allen County, Ohio may
               have destroyed evidence and may be in the process of
               destroying additional evidence at their office at 600 S. Main
               Street, Lima, Allen County, Ohio. At approximately 1355
No. 13AP-834                                                                     5


              hours, Inv. Johnson, Inv. Jack Miller, Special Agent Gary
              Miller and I (Sgt. Godfrey) went to MET Housing to secure
              the scene until a search warrant was obtained. We walked
              into the lobby, identified ourselves and asked the
              receptionist, Cheryl Lawson, to let us in. There is a secured
              door between the lobby and the offices. The receptionist has
              to push a button to electrically unlock the door. Ms. Lawson
              didn't comply after being asked and told to do so several
              times. She was told she would be arrested if she didn’t let us
              in. She still didn't comply and was told she was under arrest.
              A third party opened the door and we entered the office area.
              There is a hallway which connects this door to the
              receptionist's office. I immediately walked towards the
              receptionist's office. Ms. Lawson was already in the hallway
              and met me about halfway. Without being instructed, she
              turned around and put her hands behind her back. I put the
              handcuffs on her without incident. I placed a hand on her
              upper arm and placed my other hand on her upper back and
              guided her towards a wall so the other officers could walk
              around us. She did not resist and walked up to the wall so
              she was facing it. There was no use of force against her. She
              did not complain about being injured from this arrest.

              Ms. Lawson was transported to the Lima Police Department
              and released on an unsecured appearance bond. She
              returned to MET Housing about an hour or so after being
              arrested and was let in to retrieve her belongings. She sat in
              the conference room with some of the other employees and
              talked with them. I was in the conference room during part
              of this time. I heard her and Anna Schnippel (her boss)
              talking. Ms. Lawson told Ms. Schnippel she would do it again
              for her again [sic] if put in the position again. At no time did
              I hear Ms. Lawson complain of being injured from being
              arrested.

Hilty described relator's arrest as follows:
              Hilty informed that he was the one who actually let Sergeant
              Godfrey (Sgt. Godfrey) into the building. Hilty recalled that
              the time was approximately 1:45 pm on March 27, 2012 * * *.

              Hilty informed that when Sgt. Godfrey walked in he told
              LAWSON she was under arrest and told LAWSON to put her
              hands behind her back. Hilty recalled that LAWSON said
              something like "you're the boss". According to Hilty,
              LAWSON then put her hands behind her back and Sgt.
              Lawson [sic] put the handcuffs on her. Hilty stated there was
No. 13AP-834                                                                             6


             no resistance and LAWSON was facing a cloth wall when she
             was arrested. Hilty informed that Schnippel was behind the
             wall and the Assistant Director, Tiffany Wright (Wright), was
             behind him. When asked, Hilty advised he was probably
             standing about five (5) feet away from LAWSON when she
             was arrested. Hilty also informed that LAWSON did not say
             anything further but Schnippel and Wright both asked if
             LAWSON'[s] arrest was necessary. Hilty recalled that Sgt.
             Godfrey explained that he had given LAWSON several
             warnings.

             After LAWSON was handcuffed, Hilty related that everyone
             was moved to the conference room while the police secured
             the office. * * * Hilty related that when Officer TR Rader
             (Officer Rader) arrived to transport LAWSON, he recalled
             Sgt. Godfrey tell Officer Rader that LAWSON's handcuffs
             needed to be tightened because they were loose.

Elchert gave the following account:
             Elchert reported that she witnessed LAWSON's arrest first
             hand and indicated that LAWSON met the arresting officer
             by the cloth wall that was also part of the pod/office walls
             and that the arresting officer told LAWSON she was under
             arrest and indicated to her that she had been told three times
             to open the door to let them into the back office. Elchert
             stated that LAWSON put her hands behind her back and the
             arresting officer placed the handcuffs on LAWSON. Elchert
             stated at no time was LAWSON pushed or shoved into the
             wall. Elchert advised that LAWSON stood by the wall for a
             brief period before being led into the conference room with
             the other employees. Elchert stated LAWSON was seated on
             a couch and then confirmed that Lefik asked LAWSON if she
             needed a chair to sit in instead of the couch and LAWSON
             stated she did. Elchert stated that LAWSON was seated in
             the conference room on the couch or in the chair for
             approximately fifteen to twenty minutes. Elchert further
             advised that another officer from the Lima Police
             Department came to transport LAWSON and when he
             arrived the arresting officer told the transporting officer that
             he had to wait as he never tightened the handcuffs when he
             placed them on LAWSON. Elchert stated that the
             transporting officer then tightened the handcuffs.

      {¶ 17} Officer T.R. Rader, the officer who transported relator after her arrest, made
the following statement:
No. 13AP-834                                                                 7


            Officer Rader informed that he only transported LAWSON
            from the site to the police station and booked LAWSON.
            Officer Rader advised that LAWSON was already in custody
            and handcuffed when he arrived. SA Young showed Officer
            Rader a photo, which he identified as LAWSON. Officer
            Rader was asked if he heard LAWSON complain about any
            type of injury. Officer Rader informed that LAWSON did not
            complain of any pain or injury. Officer Rader advised that
            LAWSON was released within a half an hour on a signature
            bond. Officer Rader confirmed that LAWSON was never
            taken to the Sheriff's jail. Officer Rader informed that after
            LAWSON was released, she walked approximately six (6)
            blocks back to the office.

     {¶ 18} 10. Relator gave the following account of her arrest:

            LAWSON stated that the law enforcement officers, "busted
            in the door", and threw her against the wall and arrested her
            for obstructing. LAWSON confirmed that she had been
            warned that she would be arrested since she had not allowed
            the law enforcement officers into the back office. LAWSON
            stated that they placed hand cuffs on her and indicated that
            the hand cuffs were placed, "up high". SA Young asked
            LAWSON to describe how high her hands and/or arms were
            placed on her back and she was unable to explain. SA Young
            then stood up and placed his hands behind his back in an
            effort to determine how high LAWSON's hands and/or arms
            were up her back when she was placed in hand cuffs. It was
            determined and agreed upon by LAWSON that her hands
            and/or arms were positioned between her waist line and the
            middle of her back. LAWSON stated that the hand cuffs were
            hurting and pulling her arms and shoulders and estimated
            that they were on for approximately one (1) hour. LAWSON
            stated the hand cuffs were not loose while they were on her.
            LAWSON stated she was later taken to the conference room
            with the other employees and indicated that she was initially
            seated on a low couch. LAWSON reported that sitting on the
            couch with the hand cuffs on was uncomfortable and advised
            that another employee provided her with an office chair to sit
            in for the remainder of her time in the conference room and
            prior to being transported to the Lima Police Department.

     {¶ 19} Relator's supervisor Anna Schnippel gave a similar account:

            Schnippel was later asked to show SA Young and FA Stein
            which wall LAWSON had been thrown into and Schnippel
No. 13AP-834                                                                       8


             walked SA Young and FA Stein to the area and indicated that
             LAWSON had been thrown into a portion of the wall that
             was between a doorway that led from the back office into the
             lobby and another doorway that led from the back office and
             into their conference room. SA Young noted that there were
             three pictures/plaques hanging on that portion of the wall
             and asked Schnippel if any of them fell to the ground when
             LAWSON was shoved into the wall. Schnippel initially
             indicated they did not fall to the ground and then seemed
             confused and unable to remember whether or not any of the
             pictures/plaques fell to the ground. Schnippel stated that
             LAWSON indicated that her neck hurt because of the way the
             hand cuffs were placed on her and also because she was
             sitting forward on a low couch.

      {¶ 20} 11. Relator's application seeking to participate in the Ohio Workers'
Compensation fund for injuries she allegedly received on March 27, 2012 was denied by
order of the BWC mailed May 4, 2012. In denying her the right to participate, the BWC
order provides:
             An application for workers' compensation benefits was filed
             04/09/2012 on behalf of the injured worker requesting the
             allowance of this claim for the following injury descriptions:

             [P]olice shoved me up against the wall to handcuff me and
             put arms up high[.] [E]mployer told them to be careful[.] I
             have problems.

             The claim is DISALLOWED for the following medical
             condition (s):

             Code Description               Body Location     Part of Body

             847.0 Sprain of neck
             847.1 Sprain thoracic region
             845.0 Sprain lumbosacral

             There is no medical relationship between the diagnosed
             condition and the described injury/occupational disease.

             BWC has conflicting evidence on file.

             This decision is based on:
No. 13AP-834                                                                               9


              [I]nformation obtained by the Region 3 Special Investigation
              Unit (SIU) determined that there was conflicting injury
              descriptions. Information obtained from the injured worker
              indicates there was no new injury and that the incident
              aggravated a pre-existing and degenerative medical
              condition.

              The order also informed relator that she had 14 days to appeal this order:
              Ohio law requires that BWC allow the injured worker or
              employer 14 days from the receipt of this order to file an
              appeal. If the injured worker and employer agree with this
              decision, the 14 day appeal period may be waived. Both
              parties may submit a signed waiver of appeal to BWC. The
              Request for Waiver of Appeal (C108) is available through
              your local customer service office. Or you can log on to
              www.ohiobwc.com, select Injured [W]orker, then click on
              Forms.

              If the injured worker or the employer disagrees with this
              decision, either may file an appeal within 14 days of receipt
              of this order. Appeals are filed with the Industrial
              Commission of Ohio (IC), either via the Internet at
              www.ohioic.com or at the following IC office * * *.

       {¶ 21} 12. Relator did not appeal from the BWC order mailed May 4, 2012 which
denied her application seeking to participate in the workers' compensation fund.
       {¶ 22} 13. Instead, on January 22, 2013, relator filed a motion asking the
commission to exercise its continuing jurisdiction:
              Now comes [relator], by and through her attorney, as well as
              the employer, requesting that the Industrial Commission
              invoke continuing jurisdiction to vacate the BWC order dated
              May 4, 2012, which disallowed this claim in its entirety.

              [Relator] asserts that the order creates both significant
              mistakes of fact and law that necessitate it being vacated so
              that the matter can be referred back to the BWC for an
              appropriate order.

       {¶ 23} 14. The motion was heard before a district hearing officer ("DHO") on
March 7, 2013. Relator's request was denied. The DHO noted that there was conflicting
evidence in the record concerning the manner of relator's arrest and that the BWC had a
No. 13AP-834                                                                                 10


legitimate basis upon which to disallow relator's claim. Furthermore, the DHO indicated
that relator could have appealed from that denial within 14 days, but had failed to do so.
       {¶ 24} 15. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on May 29, 2013. The SHO noted that the BWC found that there was conflicting
evidence on file and "[a]s such, the Bureau of Workers' Compensation order indication of
conflicting methods of injury is not found to be a mistake of fact." Apparently, counsel
argued that there was fraud involved; however, the SHO disagreed, stating:
              There is no issue of fraud involved in the denial of the claim
              by the face of the Bureau of Workers' Compensation order,
              so there is no mistake of law regarding fraud. The Injured
              Worker's counsel also argued that the Bureau of Workers'
              Compensation indicating there was no medical relationship
              between the diagnosed condition and the injury results in a
              legally flawed order and the tenets of Greene v. Conrad
              (Aug. 21, 1997), Franklin App. No. 96ADE12-1780, applies.
              This argument is not found persuasive. Pursuant to Greene,
              a claimant must satisfy the following requirements for and
              [sic] adjudicator to hear the merits of a subsequent claim
              application, when the original application was denied by the
              BWC: (1) the BWC denied the initial claim because the
              claimant did not provide all of the information requested by
              the BWC to establish a claim; (2) the employee did not file an
              appeal of the BWC order denying the original claim; and (3)
              a second claim application is filed for the same incident or
              accident. Marinkovic v. Diversified Inventory Solution, Inc.,
              147 Ohio App.3d 497, 2002-Ohio-453, 771 N.E.2d 291; see
              also Bureau of Workers' Compensation's CST Advisory 31-3;
              ICR 98-1-02. In these situations, the first Bureau order is not
              deemed to be an order on the merits. In Chiple v. Acme
              Arsena Co., Inc., 2006-Ohio-5029 the court found, "The
              BWC's order was clearly a 'decision on the merits.' The BWC
              denied Chiple's claim based on its analysis of his medical
              documentation and its own rules and guidelines. Chiple fails
              to show that the BWC had insufficient evidence to determine
              he established a claim or that there was not sufficient
              medical evidence on which the Bureau could render a
              decision." In the current matter the Bureau of Workers'
              Compensation based its decision on the conflicting methods
              of injury and Injured Worker's statement to the Special
              Investigation Unit investigators. Further, there was medical
              on file and the decision was noted to be based on conflicting
              information on file. Ms. Lawson fails to show that the BWC
              had insufficient evidence to determine she established a
No. 13AP-834                                                                             11


                 claim or that there was not sufficient medical evidence on
                 which the Bureau could render a decision. As such, this Staff
                 Hearing Officer does not find any mistake of law or fact.
                 Further, Greene is not found to apply.

       {¶ 25} In the final analysis, the SHO indicated that the parties could have
appealed, but did not. As such, the SHO found that the parties could not use a motion for
continuing jurisdiction as a substitute for an appeal:
                 If the Employer or Injured Worker disagreed with the
                 Bureau's interpretation of evidence they should have
                 appealed the order within the fourteen-day appeal period. As
                 they did not do so, they cannot instead request continuing
                 jurisdiction as an alternative to an appeal. " *** A motion
                 asking the commission to exercise its continuing jurisdiction
                 is not a substitute for an appeal when a party had the
                 opportunity to appeal." State ex rel. Boskovic Gen. Contrs. v.
                 Indus. Comm., 2010-Ohio-2557, (Ohio Ct. App. June 8,
                 2010) cause dismissed, 2011-Ohio-5604, 130 Ohio St. 3d
                 1413, 956 N.E.2d 306 (2011).

       {¶ 26} 16. Relator's appeal was refused by order of the commission mailed
June 22, 2013.
       {¶ 27} 17. Relator's further request for reconsideration was denied by order mailed
July 27, 2013.
       {¶ 28} 18. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 29} Because relator had an adequate remedy at law, the magistrate finds that
the commission did not abuse its discretion when it denied relator's motion asking the
commission to exercise its continuing jurisdiction.
       {¶ 30} R.C. 4123.511 provides:
                 (B)(1) Except as provided in division (B)(2) of this section, in
                 claims other than those in which the employer is a self-
                 insuring employer, if the administrator determines under
                 division (A) of this section that a claimant is or is not entitled
                 to an award of compensation or benefits, the administrator
                 shall issue an order no later than twenty-eight days after the
                 sending of the notice under division (A) of this section,
                 granting or denying the payment of the compensation or
                 benefits, or both as is appropriate to the claimant. * * * The
                 administrator shall notify the claimant and the employer of
No. 13AP-834                                                                            12


                the claimant and their respective representatives in writing
                of the nature of the order and the amounts of compensation
                and benefit payments involved. The employer or claimant
                may appeal the order pursuant to division (C) of this section
                within fourteen days after the date of the receipt of the order.
                The employer and claimant may waive, in writing, their
                rights to an appeal under this division.

(Emphasis added.)

          {¶ 31} The BWC order denying the allowance of relator's claim was mailed May 4,
2012. That order specifically informed relator that she had 14 days to appeal. Relator did
not file a timely appeal. Relator is barred from appealing the order and is precluded from
contesting the merits of her right to participate in the workers' compensation system.
R.C. 4123.511. See also State ex rel. McCullough v. Indus. Comm. of Ohio, 94 Ohio St.3d
156 (2002).
          {¶ 32} In State ex rel. Boskovic Gen. Contrs. v. Indus. Comm., 10th Dist. No.
09AP-711, 2010-Ohio-2557, this court considered a mandamus case in which Boskovic
General Contractors ("Boskovic") asked the commission to exercise its continuing
jurisdiction, contending that it was not the employer of the claimant in the allowed claim.
After noting that Boskovic had received a copy of the order naming it as the employer in
the claim and noting that Boskovic did not file an appeal from that order, this court
stated:
                Mandamus will not issue when there is a plain and adequate
                remedy in the ordinary course of the law. R.C. 2731.05. Here,
                relator seeks to challenge the June 12, 2007 order that found
                relator to be claimant's employer at the time he was injured.
                When this determination was made, relator had available to
                it an adequate remedy at law by way of filing a timely appeal
                of the June 12, 2007 order, but relator did not file such an
                appeal. A failure to pursue an adequate administrative
                remedy bars mandamus relief. State ex rel. Buckley v. Indus.
                Comm., 100 Ohio St.3d 68, 796 N.E.2d 522, 2003-Ohio-
                5072, citing State ex rel. Reeves v. Indus. Comm. (1990), 53
                Ohio St.3d 212, 559 N.E.2d 1311.

Id. at ¶ 6.
          {¶ 33} This is a right-to-participate case and not an extent of disability case.
Relator could have appealed the denial of her claim to the commission and, in the event
No. 13AP-834                                                                              13


she lost before the commission, relator could have appealed the decision to a common
pleas court. See R.C. 4123.512. Relator had an adequate remedy which she did not
pursue and, as such, her request for mandamus relief should be denied.
       {¶ 34} Although it is unnecessary to discuss relator's argument that the
commission abused its discretion when it refused to exercise its continuing jurisdiction,
because relator has raised it, the magistrate will, nevertheless, address that issue.
       {¶ 35} Pursuant to R.C. 4123.52, "The jurisdiction of the industrial commission
and the authority of the administrator of workers' compensation over each case is
continuing, and the commission may make such modification or change with respect to
former findings or orders with respect thereto, as, in its opinion is justified." In State ex
rel. B & C Machine Co. v. Indus. Comm., 65 Ohio St.3d 538, 541-42 (1992), the court
examined the judicially-carved circumstances under which continuing jurisdiction may be
exercised, and stated as follows:
              R.C. 4123.52 contains a broad grant of authority. However,
              we are aware that the commission's continuing jurisdiction is
              not unlimited. See, e.g., State ex rel. Gatlin v. Yellow Freight
              System, Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480
              N.E.2d 487 (commission has inherent power to reconsider
              its order for a reasonable period of time absent statutory or
              administrative restrictions); State ex rel. Cuyahoga Hts. Bd.
              of Edn. v. Johnston (1979), 58 Ohio St.2d 132, 12 O.O.3d
              128, 388 N.E.2d 1383 (just cause for modification of a prior
              order includes new and changed conditions); State ex rel.
              Weimer v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16
              O.O.3d 174, 404 N.E.2d 149 (continuing jurisdiction exists
              when prior order is clearly a mistake of fact); State ex rel.
              Kilgore v. Indus. Comm. (1930), 123 Ohio St. 164, 9 Ohio
              Law Abs. 62, 174 N.E. 345 (commission has continuing
              jurisdiction in cases involving fraud); State ex rel. Manns v.
              Indus. Comm. (1988), 39 Ohio St.3d 188, 529 N.E.2d 1379
              (an error by an inferior tribunal is a sufficient reason to
              invoke continuing jurisdiction); and State ex rel. Saunders v.
              Metal Container Corp. (1990), 52 Ohio St.3d 85, 86, 556
              N.E.2d 168, 170 (mistake must be "sufficient to invoke the
              continuing jurisdiction provisions of R.C. 4123.52"). Today,
              we expand the list set forth above and hold that the
              Industrial Commission has the authority pursuant to R.C.
              4123.52 to modify a prior order that is clearly a mistake of
              law.
No. 13AP-834                                                                           14


      {¶ 36} Relator alleged that the BWC order disallowing her claim contained
mistakes of law and fact. Relator asserts that the BWC incorrectly stated that "[t]here is
no medical relationship between the diagnosed condition and the described
injury/occupational disease." However, relator is taking one sentence completely out of
context.
      {¶ 37} As noted in the findings of fact, the BWC order mailed May 4, 2012
provides:
             An application for workers' compensation benefits was filed
             04/09/2012 on behalf of the injured worker requesting the
             allowance of this claim for the following injury descriptions:

             [P]olice shoved me up against the wall to handcuff me and
             put arms up high[.] [E]mployer told them to be careful[,] I
             have problems.

             The claim is DISALLOWED for the following medical
             condition (s) :

             847.0 Sprain of neck
             847.1 Sprain thoracic region
             845.0 Sprain lumbosacral

             There is no medical relationship between the diagnosed
             condition and the described injury/occupational disease.

             BWC has conflicting evidence on file.



             This decision is based on:

             [I]nformation obtained by the Region 3 Special Investigation
             Unit [SID] determined that there was conflicting injury
             descriptions. Information obtained from the injured worker
             indicates there was no new injury and that the incident
             aggravated a pre-existing and degenerative medical
             condition.

(Emphasis added.)

      {¶ 38} As is clear from the order, the BWC indicated that there was conflicting
evidence on file and that review of the SID report indicated that there was conflicting
No. 13AP-834                                                                                 15


descriptions as to the events which relator asserted caused her injuries. Further, the BWC
also found that there was conflicting evidence as to whether or not the incident
aggravated a pre-existing and degenerative medical condition.                The commission
concluded that the evidence was insufficient to support a medical relationship between
the diagnosed condition and the description of how the alleged injuries occurred.
       {¶ 39} Relator goes no further in explaining why she believes the BWC's order
contains clear mistakes of law and fact except to say that relator was threatened not to
pursue an appeal and that, on these grounds, the commission should have exercised its
continuing jurisdiction. However, aside from counsel's arguments, there is no evidence in
the record to support this argument. A review of that order demonstrates that the
commission did not abuse its discretion in finding that relator had not met one of the
prerequisites necessary before the commission could exercise its continuing jurisdiction
over her claim.
       {¶ 40} Finding that relator had an adequate remedy at law which she did not
pursue and finding that relator has not otherwise demonstrated that the commission
abused its discretion when it denied her application asking it to exercise continuing
jurisdiction, it is this magistrate's decision that this court should deny relator's request for
a writ of mandamus.
                                           /S/ MAGISTRATE
                                          STEPHANIE BISCA BROOKS


                               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).
