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State ex rel. Neitzelt v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

June 27, 2019

The State ex rel. Christina Neitzelt, Relator,
v.
Industrial Commission of Ohio et al., Respondents.

          IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION LUPER

         On brief:

          Hochman & Plunkett Co., L.PA., Gary D. Plunkett, and Marcus A. Heath, for relator.

          Dave Yost, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio.

          Crabbe, Brown & James, LLP, and John C. Albert, for respondent Vitas Healthcare Corporation of Ohio.

          DECISION

          SCHUSTER, J.

         {¶ 1} Relator, Christina Neitzelt, initiated this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order wherein the commission exercised its continuing jurisdiction based on new and changed circumstances and a clear mistake of fact which resulted in an order denying her claim for L4-L5 disc herniation.

         {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law. The magistrate, citing the Supreme Court of Ohio's recent decision in State ex rel. Belle Tire Distribs., Inc. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122, rejected the commission's threshold argument that its decision to exercise continuing jurisdiction in this matter is not reviewable in mandamus because the ultimate determination regarding Neitzelt's participation in the workers' compensation fund was appealable. As to the continuing jurisdiction issue, the magistrate determined that Neitzelt has not demonstrated that the commission abused its discretion when it exercised its continuing jurisdiction and denied Neitzelt's claim for L4-L5 disc herniation. Thus, the magistrate recommends this court deny Neitzelt's request for a writ of mandamus.

         {¶ 3} Neitzelt has filed objections to the magistrate's decision. Generally, Neitzelt argues the magistrate erred in concluding that the commission did not abuse its discretion when it exercised its continuing jurisdiction and disallowed relator's claim for L4-L5 disc herniation.[1] More particularly, she alleges the magistrate erred by not finding that the commission's exercise of continuing jurisdiction was barred by the applicable statute of limitations or res judicata, concluding that evidence of the non-existence of her L4-L5 disc herniation was not readily discoverable absent surgery, concluding that Dr. Nicolas Grisoni's operative report was evidence of the non-existence of the disc herniation, and concluding that it was her burden to re-litigate the disc herniation issue after the initial allowance. We agree with Neitzelt's contention that the commission abused its discretion in exercising its continuing jurisdiction to deny her claim for L4-L5 disc herniation.

         {¶ 4} Pursuant to R.C. 4123.52, "[t]he jurisdiction of the industrial commission and the authority of the administrator of workers' compensation over each case is continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified." This continuing jurisdiction is not unlimited, however, as it only may be invoked when there exists (1) new and changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, and (5) error by inferior tribunal. State ex rel. Robertson v. Indus. Comm., 10th Dist. No. 13AP-77, 2014-Ohio-2417, ¶ 7. In addition to this substantive limitation, there are time constraints on when the commission may exercise its continuing jurisdiction. As to orders that are appealable, the commission has jurisdiction over such an order only until that order is appealed or the appeal time has elapsed. State ex rel. Gatlin v. Yellow Freight Sys., Inc., 18 Ohio St.3d 246, 249 (1985), citing State ex rel. Prayner v. Indus. Comm., 2 Ohio St.2d 120, 121 (1965), and Todd v. Gen. Motors Corp., 65 Ohio St.2d 18 (1981); Palmer Bros. Concrete, Inc. v. Indus. Comm., 3d Dist. No. 13-07-16, 2008-Ohio-345, ¶ 20; see State ex rel. Johnson v. Cooper Industries, 10th Dist. No. 82AP-703 (Aug. 30, 1983) (noting that because the order was not appealable, the continuing jurisdiction of the commission "did not expire 60 days after issuance of the order at the latest, as it would have had the order been appealable"). The commission retains jurisdiction over non-appealable orders, however, "for a reasonable period of time," which cannot extend beyond the filing of a mandamus complaint. State ex rel. Rodriguez v. Indus. Comm., 67 Ohio St.3d 210, 213 (1993).

         {¶ 5} Here, the commission allowed Neitzelt's claim for L4-L5 disc herniation in June 2016. This allowance became final on June 29, 2016, when the commission refused to hear the appeal of respondent Vitas Healthcare Corporation of Ohio ("Vitas Healthcare") from the staff hearing officer order granting the additional claim allowance. Pursuant to R.C. 4123.512(A), Vitas Healthcare had 60 days to file an appeal from the commission's final order that granted Neitzelt's claim for L4-L5 disc herniation. State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 279-80 (2000), citing R.C. 4123.512. But it did not file an appeal. Subsequently, in December 2016, Neitzelt had back surgery. Approximately nine months later, in October 2017, Vitas Healthcare moved the commission to exercise its continuing jurisdiction to vacate the allowance of L4-L5 disc herniation, citing the operative report for the December 2016 surgery and an October 2017 report of a physician who opined that the December 2016 surgery was performed for non-work related conditions. The commission granted the motion, based on its findings that there were new and changed circumstances and a clear mistake of fact regarding the presence of an L4-L5 disc herniation. However, because the commission's order granting Neitzelt's additional allowance for L4-L5 disc herniation was a final and appealable right-to-participate order, the commission's continuing jurisdiction over that order ceased once the 60-day appeal period lapsed in 2016. Therefore, the commission improperly exercised continuing jurisdiction over the order in 2018.

         {¶ 6} Following our independent review of the record pursuant to Civ.R. 53, we adopt the magistrate's findings of fact. We find the magistrate correctly determined that the issue of whether the commission abused its discretion in exercising its continuing jurisdiction is properly before this court. However, we disagree with the magistrate's conclusion that the commission did not abuse its discretion in exercising its continuing jurisdiction. Accordingly, the magistrate's conclusions of law are adopted in part. For the reasons stated above, we sustain Neitzelt's objections to the magistrate's decision and grant her request for a writ of mandamus. The commission is hereby ordered to vacate its order exercising its continuing jurisdiction and any resulting orders based thereon.

         Objections sustained; writ of mandamus granted.

          BROWN, J., concurs.

          DORRIAN, J, concurring in part and concurring in judgment.

         {¶ 7} I concur with the majority and would sustain the objections and grant the writ. I write separately, however, to clarify that prior to determining whether the 60-day temporal limitation applies, it is necessary to determine whether the commission has grounds to exercise continuing jurisdiction. If the commission properly determines there was: (1) a clear mistake of fact, (2) a clear mistake of law, (3) new and changed circumstances, (4) fraud, or (5) an error by an inferior tribunal, then the 60-day temporal limitation does not apply.

         {¶ 8} In this case, the commission determined that Dr. Grisoni's surgical record of December 8, 2016 and Dr. Rozen's medical opinion report of October 22, 2017 constituted "new and changed circumstances that were not reasonably discoverable at the time that the issue of L4-L5 disc herniation was adjudicated and also presents evidence of a clear mistake of fact regarding the presence of an L4-L5 disc herniation." (See appended Mag. Decision at ¶ 27.) I believe the commission abused its discretion in making this determination.

         {¶ 9} Regarding the determination the new evidence constituted evidence of new and changed circumstances, the new evidence did not constitute evidence that conditions had changed subsequent to the initial award. Nor was the new evidence not reasonably discoverable at the time of the initial award. To the contrary, at the time of the initial award, the commission had before it the February 19, 2016 report of independent medical examiner Dr. Griesser. Dr. Griesser opined prior to the initial award, much like Dr. Rozen opined after the initial award, that relator did not have the requested L4-L5 herniation. The commission rejected Dr. Griesser's opinion. It cannot now exercise continuing jurisdiction to accept Dr. Rozen's opinion, which although was new evidence, was the same as Dr. Griesser's opinion, that there was no L4-L5 disc herniation at the time of the initial award.

         {¶ 10} Regarding the determination the new evidence constituted a clear mistake of fact, I first note that the employer did not argue in its motion to exercise continuing jurisdiction or in its response to relator's motion in opposition to continuing jurisdiction that the evidence constituted a mistake of fact. Nor did the commission articulate what about the new evidence constituted a mistake of fact. Furthermore, mistake of fact has been construed as clerical error, and the commission did not point to any clerical errors. Neither the employer nor the commission point us to any authority that evidence obtained subsequent to an initial award can, in and of itself, constitute a mistake of fact-especially when similar evidence existed at the time of the initial award. Finally, even if the evidence were considered a mistake of fact, it was not a clear mistake of fact given the contrary evidence that the L4-L5 disc herniation did exist, upon which the commission relied in granting the initial award.

         {¶ 11} Therefore, as I believe the commission abused its discretion in determining that Dr. Grisoni's surgical record and Dr. Rozen's medical opinion constituted new and changed circumstances and clear mistake of fact, I would sustain the objections to the magistrate's decision. Accordingly, I then concur with the majority that the 60-day temporal limitation applied and lapsed. I concur with the majority to issue the writ to order the commission to vacate the January 30, 2018 order wherein it exercised its continuing jurisdiction to deny relator's claim for L4-L5 disc herniation.

         APPENDIX

         Rendered on September 27, 2018

         MAGISTRATE'S DECISION

          STEPHANIE BISCA MAGISTRATE

         {¶ 12} Relator, Christina Neitzelt, has filed this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") vacate its order wherein the commission exercised its continuing jurisdiction based on new and changed circumstances as well as a clear mistake ...


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