The State ex rel. Old Dominion Freight Line, Inc., Relator,
Industrial Commission of Ohio, Respondent.
MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION
Eastman & Smith Ltd., Mark A. Shaw and Kimberly S.
Kondalski, for relator.
Yost], Attorney General, and Sherry M. Phillips, for
1} Relator, Old Dominion Freight Line, Inc.
("Old Dominion"), seeks a writ of mandamus ordering
respondent, Industrial Commission of Ohio
("commission"), to vacate the July 29, 2017 order
of its staff hearing officer ("SHO") denying Old
Dominion's request that the commission exercise its
continuing jurisdiction based on new and changed
circumstances and ordering the commission to find that Old
Dominion presented evidence of new and changed circumstances
to warrant vacating the 2010 commission order that granted
permanent total disability ("PTD") compensation to
the claimant, Robert L. Mason. For the following reasons, we
deny Old Dominion's request.
2} Old Dominion contends that new and changed
circumstances have rendered the 2010 order granting Mason PTD
compensation "fatally defective" and that the 2010
order should be vacated. (Feb. 1, 2018 Compl. at ¶
25-26.) Old Dominion alleges that the commission's July
29, 2017 order that denied Old Dominion's motion
requesting the commission to exercise continuing jurisdiction
under R.C. 4123.52 and to vacate the 2010 order based on new
and changed circumstances-namely, the disallowance of a
previously allowed psychological condition-"is
inadequately explained, unsupported by some evidence,
contrary to the law and facts, and is an abuse of discretion
to the extent that discretion is authorized." (Compl. at
3} In accord with Civ.R. 53(C) and Loc.R. 13(M) of
the Tenth District Court of Appeals, we referred this matter
to a magistrate of this Court who issued on November 2, 2018
the attached decision, which included findings of fact and
conclusions of law. As is more fully stated in the decision,
the magistrate found that the commission properly determined
there were no new and changed circumstances sufficient to
justify its exercise of continuing jurisdiction given the
facts of this case. The magistrate thereby concluded that the
commission had acted within its discretion when it denied Old
Dominion's request that the commission exercise
continuing jurisdiction under R.C. 4123.52 and that the
record contained some evidence in support of the
commission's denial. Thus, the magistrate has recommended
that we deny Old Dominion's request for a writ of
mandamus. We agree it is appropriate to do so and explain our
4} Old Dominion timely filed an objection to the
The Magistrate erred in failing to find that new and changed
circumstances exist which require the Commission to exercise
its continuing jurisdiction under R.C. §4123.52, vacate
the SHO order granting Mason's application for PTD
compensation, and remand the application to the Commission
for further hearing.
(Nov. 16, 2018 Old Dominion's Obj. at 1.)
5} The commission timely opposed Old Dominion's
objection to the appellate magistrate's decision, arguing
that the decision was based on some evidence, and that the
magistrate had decided the matter correctly.
6} The issue presented to this Court is whether,
under the facts of this matter, the commission was required
to grant Old Dominion's request to exercise continuing
jurisdiction. We find that the magistrate, in concluding that
the answer to that question is no, applied the correct legal
standard for determining as a matter of law the
commission's exercise of continuing jurisdiction. The
magistrate cited R.C. 4123.52, which provides that
"[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." (App'x at ¶ 40.) The magistrate
also cited State ex rel. B & C Machine Co. v. Indus.
Comm., 65 Ohio St.3d 538, 541-42 (1992), a decision
rendered by the Supreme Court of Ohio wherein it enunciated
judicially carved circumstances under which continuing
jurisdiction may be exercised.
7} The magistrate in her decision then summarized
the parties' opposing positions as follows:
The commission does not necessarily argue that new and
changed circumstances did not exist, acknowledging that case
law would support a finding that the subsequent allowance or
disallowance of conditions can have an effect on prior
orders. Instead, the commission argues that relator did not
show new and changed circumstances that would warrant the
commission invoking its continuing jurisdiction.
Specifically, when the commission originally granted claimant
PTD compensation, the commission relied on medical reports
that found claimant independently disabled based separately
on the physical conditions and the psychological conditions.
The commission asserts that any change to the status of the
psychological conditions, including the disallowance of the
condition of PTSD, did not affect the validity of the
original decision to award PTD compensation because that
decision was still properly supported by medical evidence
from physicians who considered only the allowed physical
conditions and concluded that based on those allowed physical
conditions alone, claimant was unable to return to any
sustained remunerative employment.
The question is whether the commission abused its discretion
when it denied the request to invoke its continuing
jurisdiction and whether the reason given for that decision
is supported by some evidence. Even if the commission should
have found that relator presented evidence of new and changed
circumstances, that claimant's claim was specifically
disallowed for the psychological condition PTSD, that fact
does not support an order vacating the award of PTD
compensation. As noted in the findings of fact, claimant
presented medical evidence from physicians who considered
only his allowed physical conditions. Those physicians opined
that he was unable to return to employment. Claimant also
submitted medical evidence from physicians who considered
only his allowed psychological conditions and those doctors
likewise found that he was unable to return to work. As the
commission asserts, the commission found claimant's
allowed physical conditions independently rendered him unable
to return to sustained remunerative employment. The
subsequent disallowance of the psychological condition PTSD
did not and would not change that fact. Inasmuch as no
remedial action would clearly follow, the magistrate finds
that the commission did not abuse its discretion here when it
refused to exercise its continuing jurisdiction over the
claimant's award of PTD compensation.
Based on the forgoing, it is the magistrate's decision
that relator has not demonstrated the commission abused its
discretion when it declined to exercise its continuing
jurisdiction over the award of PTD compensation to claimant,
and this court should deny relator's request for a writ
(App'x at ¶ 42-44.)
8} Old Dominion's objection generally presents
the same arguments it presented in its original brief, which
the magistrate addressed in her decision. However, Old
Dominion also takes exception to the medical reports the
magistrate references in the decision, stating:
The fact that the Magistrate searched the record and found
additional medical reports from "physicians who
considered only … [Mason's] physical
conditions" and who opined that he "was unable to
return to employment" does not justify her failure to
find that new and changed circumstances exist and that the
exercise of continuing jurisdiction is both necessary and
appropriate. Rather, it violates the well-settled rule of law
set forth by the Ohio Supreme Court in Mitchell v.
Robbins & Meyers, Inc. (1983), 6 Ohio St. 3d, 481,
483-484, * * * that the Court will "no longer search the
commission's file for 'some evidence' to support
an order of the commission not otherwise specified as a basis
for the decision." Any such reports were not the basis
of the SHO's holding that awarded Mason PTD compensation
in this claim. Since the Commission did not base its PTD
holding upon those unspecified reports, they may not be
relied upon by the Magistrate here as an alternative basis to
support the PTD order.
(Old Dominion's Obj. at 6-7.)
9} We disagree with Old Dominion's
characterization of the magistrate's review of the
record. The magistrate references in her decision five
medical reports: the September 25, 2007 report of Mason's
treating physician, Charles B. May, D.O. (App'x at ¶
23); the January 28, 2008 report of Richard M. Ward, M.D.
(App'x at ¶ 25); the October 7, 2009 report of
William R. Fitz, M.D. (App'x at ¶ 26); the April 1,
2009 report of Lee Howard, Ph.D. (App'x at ¶ 27);
and the October 21, 2009 report of John M. Malinky, Ph.D.
(App'x at ¶ 28). The magistrate correctly states in
her decision that each of these reports was specifically
identified in the SHO's 2010 order awarding PTD
compensation. See App'x at ¶ 29, 35. It is
incorrect for Old Dominion to claim that the magistrate
"searched the record" to locate physician reports
not identified in commission orders. (Old Dominion's Obj.
at 6.) Contrary to Old Dominion's claim, we find that the
magistrate properly reviewed the medical reports identified
by the commission.
10} Additionally, the test for establishing a right
to PTD compensation requires the claimant to demonstrate that
"an allowed condition independently caused the
disability." State ex rel Bradley v. Indus.
Comm., 77 Ohio St.3d 239, 242 (1997), citing State
ex rel. LTV Steel Co. v. Indus. Comm., 65 Ohio St.3d 22
(1992). We find that the magistrate properly applied this
standard when determining whether the alleged new and changed
circumstances were relevant to the commission's original
decision awarding PTD compensation to Mason.
11} Finally, we take note of the commission's
discussion regarding the timeliness of Old Dominion's
current action to the PTD compensation award. In its
memorandum in opposition to Old Dominion's objection, the
In reviewing the Magistrate's Decision, it is important
to remember that continuing jurisdiction with the potential
for destabilizing prior commission orders is reserved only
for situations in which circumstances truly have changed
since the award. State ex rel. Knapp v. Indus.
Comm.,134 Ohio St.3d 134, 2012-Ohio-5379, 890 N.E.2d
987. The commission is also limited to a "reasonable
period of time" in which to exercise its inherent power
of continuing jurisdiction. State ex rel. Gatlin v.
Yellow Freight System, Inc.,18 Ohio St.3d 246, 480
N.E.2d 487 (1985). In this case, the course of the
administrative and litigation process was irrevocably altered
by Mason's death, which obviously impacted the evidence
available to defend against Old Dominion's appeal of the
administratively allowed psychological condition, i.e.,
post-traumatic stress disorder ("PTSD"). Old
Dominion prevailed in its R.C. 4123.512 appeal of the
allowance of that condition to the Franklin County Court of
Common Pleas in Case No. 10CV010944 (the "PTSD
Case") only after the evidence available at trial was
stripped of crucial testimony - [Mason] was deceased and thus
Old Dominion's Motion for Summary Judgment was unopposed.
(Stipulation of Evidence at 814-815, 840 "S. ___").
Old Dominion's mandamus action seeks to overturn a
disability order issued on March 31, 2010, and to reverse
nearly a decade of disability payments made to ...