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State ex rel. Old Dominion Freight Line, Inc. v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

December 3, 2019

The State ex rel. Old Dominion Freight Line, Inc., Relator,
v.
Industrial Commission of Ohio, Respondent.

         IN MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION

         On brief:

          Eastman & Smith Ltd., Mark A. Shaw and Kimberly S. Kondalski, for relator.

         On brief:

          [Dave Yost], Attorney General, and Sherry M. Phillips, for respondent.

          DECISION

          BRUNNER, J.

         {¶ 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 ¶ 27.)

         {¶ 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 reasons.

         {¶ 4} Old Dominion timely filed an objection to the magistrate's decision:

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 of mandamus.

(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 commission states:

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 ...

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