State ex rel. Tchankpa v. Indus. Comm. ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Tchankpa v. Indus. Comm., Slip Opinion No. 2024-Ohio-3430.]
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SLIP OPINION NO. 2024-OHIO-3430THE STATE EX REL . TCHANKPA, APPELLANT, v. INDUSTRIAL COMMISSION OF
OHIO ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Tchankpa v. Indus. Comm., Slip Opinion No.
2024-Ohio-3430.]
Workers’ compensation—Claimant does not have an allowed workers’
compensation claim and Industrial Commission has no jurisdiction to
award any benefits, because after dismissing his appeal of the commission’s
order denying his right to participate in workers’ compensation fund,
claimant failed to refile the action within one year as permitted under the
saving statute, R.C. 2305.19(A)—R.C. 4123.52—Industrial Commission
correctly denied claimant’s continuing-jurisdiction motion because
claimant filed his motion outside the five-year period within which the
commission was permitted to exercise its continuing jurisdiction under R.C.
4123.52(A)—Court of appeals’ judgment denying writ of mandamus
affirmed.
SUPREME COURT OF OHIO
(No. 2024-0096—Submitted July 9, 2024—Decided September 11, 2024.)
APPEAL from the Court of Appeals for Franklin County,
No. 20AP-259, 2024-Ohio-93.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.
Per Curiam.
{¶ 1} Appellant, Kassi E. Tchankpa, filed a mandamus action in the Tenth
District Court of Appeals, requesting a writ ordering appellee Industrial
Commission of Ohio to vacate two of its decisions and ordering appellee Ascena
Retail Group, Inc. (“Ascena”) to pay for his medical treatment and chiropractic
services and to pay him temporary-total-disability (“TTD”) compensation. The two
decisions at issue are (1) an October 2014 order refusing Tchankpa’s appeal from
a staff hearing officer’s disallowance of his workers’ compensation claim and (2) a
May 2021 order refusing Tchankpa’s appeal from a staff hearing officer’s dismissal
of his motion to exercise continuing jurisdiction. The court of appeals denied
Tchankpa’s request for a writ of mandamus, and Tchankpa filed a pro se direct
appeal to this court. Because Tchankpa had an adequate remedy in the ordinary
course of the law to challenge the disallowance of his workers’ compensation claim
and because his continuing-jurisdiction motion was time-barred, we affirm the
Tenth District’s judgment.
I. BACKGROUND
{¶ 2} Tchankpa first sought workers’ compensation benefits in October
2013 when he filed a claim with the Bureau of Workers’ Compensation describing
an injury he allegedly sustained while working for Ascena. Ascena, a self-insuring
employer, contested the validity of Tchankpa’s claim, and the bureau referred the
matter to the commission. Before the matter was heard, Tchankpa also applied for
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TTD compensation.
{¶ 3} On November 7, 2013, Ascena requested that the commission
suspend Tchankpa’s claim because he had failed to submit a signed medical release
as required by R.C. 4123.651(B). Tchankpa submitted the medical release that
same day. The commission’s hearing administrator, in a November 2013
“compliance letter,” denied Ascena’s request to suspend the claim.
{¶ 4} In a July 2014 order, a district hearing officer (“DHO”) for the
commission allowed Tchankpa’s workers’ compensation claim for “left shoulder
sprain/strain, left shoulder adhesive capsulitis, and left shoulder rotator cuff
syndrome.” The DHO found that Tchankpa was “unable to return to and perform
his former position of employment from 12/14/2013 to 07/01/2014 as a result of
the allowed conditions” and ordered Ascena to pay TTD compensation for that
period and continuing.
{¶ 5} Ascena filed a timely administrative appeal from the DHO’s order,
and a hearing date was set before a staff hearing officer (“SHO”) for the
commission. The commission granted Ascena’s request for a continuance of the
hearing because the parties were negotiating a settlement. The parties were unable
to reach an agreement, however, and Ascena filed a motion to schedule a hearing
on its appeal.
{¶ 6} While the appeal was pending, Ascena paid Tchankpa TTD
compensation under the DHO’s order but did not pay for Tchankpa’s medical
treatment and chiropractic services. See R.C. 4123.511(H)(4) (compensation
payments shall commence when the employer receives a DHO’s order); compare
R.C. 4123.511(I) (medical-benefit payments shall commence upon the earlier of
the date of the issuance of a SHO’s order or the date of the final administrative or
judicial determination).
{¶ 7} In September 2014, the SHO vacated the DHO’s order and disallowed
Tchankpa’s workers’ compensation claim based on “insufficient persuasive
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evidence that [he] sustained an injury in the course of and arising from his
employment on 12/21/2012.” Tchankpa appealed the SHO’s order, but the
commission refused the appeal in an order dated October 7, 2014. See R.C.
4123.511(E).
{¶ 8} Tchankpa filed in the Franklin County Court of Common Pleas (1) a
notice of appeal from the SHO’s September 2014 order and the commission’s
October 2014 order, see R.C. 4123.512(A), and (2) a complaint requesting that the
court grant him the right to participate in the workers’ compensation fund, see R.C.
4123.512(D). Before the matter was adjudicated, Tchankpa filed under Civ.R.
41(A)(1) a notice of voluntary dismissal of the action without prejudice.
{¶ 9} In 2019, Tchankpa attempted to obtain a writ of mandamus from the
Tenth District and from this court directing the commission to order Ascena to pay
him TTD compensation. See State ex. rel. Tchankpa v. Indus. Comm., No. 19AP-
508 (10th Dist. Aug. 1, 2019); State ex rel. Tchankpa v. Indus. Comm., case No.
2019-1129 (Aug. 12, 2019). Tchankpa voluntarily dismissed the complaint he had
filed in the Tenth District. Tchankpa, No. 19AP-508 (10th Dist. Aug. 13, 2019).
And we granted the commission’s and Ascena’s motions to dismiss the complaint
Tchankpa had filed in this court. State ex rel. Tchankpa v. Indus. Comm., 2019-
Ohio-4474.
{¶ 10} Tchankpa refiled his mandamus action in the Tenth District in May
2020. While that action was pending, Tchankpa attempted to invoke the
commission’s continuing jurisdiction under R.C. 4123.52 by filing a motion with
the commission in which he alleged new and changed circumstances and asked the
commission to reconsider his request for payment of TTD compensation. A DHO
concluded that the commission lacked jurisdiction to address Tchankpa’s
continuing-jurisdiction motion, and a SHO affirmed the DHO’s decision on appeal
because “the instant claim [had] been disallowed over five years ago without the
possibility of re-filing in the Court of Common Pleas.” In an order dated May 28,
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2021, the commission refused Tchankpa’s appeal from the SHO’s order dismissing
his continuing-jurisdiction motion. See R.C. 4123.511(E).
{¶ 11} In his second amended complaint filed in the Tenth District,
Tchankpa requested a writ of mandamus directing the commission to vacate its
October 2014 and May 2021 orders, reinstate the prior order awarding him payment
of TTD compensation, order Ascena to pay for his medical treatment and
chiropractic services and to pay him TTD compensation, reimburse his costs, and
award him “any further relief to which he is entitled.”
{¶ 12} The Tenth District referred the matter to a magistrate who
recommended that the court deny Tchankpa’s request for a writ because he (1) had
an adequate remedy in the ordinary course of the law through an R.C. 4123.512
appeal and (2) no longer had a legal right to invoke the commission’s continuing
jurisdiction under R.C. 4123.52(A). 2024-Ohio-93, ¶ 2 (10th Dist.). The court of
appeals adopted the magistrate’s decision, overruled Tchankpa’s objections to the
magistrate’s decision, and denied Tchankpa’s request for a writ of mandamus. Id.
at ¶ 26.
{¶ 13} Tchankpa appealed to this court, asserting ten propositions of law.
For ease of discussion, we divide Tchankpa’s propositions of law into three
categories of alleged errors related to (1) the commission’s October 2014 order, (2)
the commission’s May 2021 order, and (3) the court of appeals’ decision.
II. ANALYSIS
A. The Commission Denied Tchankpa the Right to Participate in the
Workers’ Compensation Fund
{¶ 14} We first address Tchankpa’s arguments related to Ascena’s refusal
to pay for his medical treatment and chiropractic services, Ascena’s discontinuation
of TTD compensation payments, the commission’s failure to enforce the provision
of these benefits by Ascena, and the Tenth District’s conclusion that it could not
address these issues in the context of a disallowed workers’ compensation claim,
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SUPREME COURT OF OHIO
id. at ¶ 20.
{¶ 15} “Under R.C. 4123.512, claimants and employers can appeal
Industrial Commission orders to a common pleas court only when the order grants
or denies the claimant’s right to participate [in the workers’ compensation fund].
Determinations as to the extent of a claimant’s disability, on the other hand, are not
appealable and must be challenged in mandamus.” State ex rel. Liposchak v. Indus.
Comm., 2000-Ohio-73, ¶ 8; accord State ex rel. Consolidation Coal Co. v. Indus.
Comm., 18 Ohio St.3d 281, 284-285 (1985). To be entitled to a writ of mandamus,
Tchankpa must show by clear and convincing evidence that he has a clear legal
right to the requested relief, that the commission has a clear legal duty to provide
that relief, and that he has no adequate remedy in the ordinary course of the law.
State ex rel. Zarbana Industries, Inc. v. Indus. Comm., 2021-Ohio-3669, ¶ 10.
{¶ 16} In its October 2014 order, the commission refused to accept
Tchankpa’s appeal from the SHO’s order disallowing his workers’ compensation
claim, thereby denying Tchankpa the right to participate in the workers’
compensation fund. Consequently, Tchankpa had an adequate remedy in the
ordinary course of the law by way of appeal to the common pleas court under R.C.
4123.512(A). See Liposchak at ¶ 8. Tchankpa timely appealed the commission’s
order but subsequently dismissed the action under Civ.R. 41(A)(1). He then failed
to refile the action within one year as permitted under the saving statute, R.C.
2305.19(A).1 Accordingly, Tchankpa is precluded from proving his right to
participate in the workers’ compensation fund for his alleged 2012 injury. See
Kaiser v. Ameritemps, Inc., 1999-Ohio-360, ¶ 14.
{¶ 17} In sum, because Tchankpa does not have an allowed workers’
1. We have “long recognized that the saving statute applies to R.C. 4123.512 appeals.” Caldwell v.
Whirlpool Corp., 2024-Ohio-1625, ¶ 26, citing Lewis v. Connor, 21 Ohio St.3d 1 (1985), syllabus
(citing former R.C. 4123.519, which was subsequently renumbered R.C. 4123.512, Am.Sub.H.B.
No. 107, 145 Ohio Laws, Part II, 2990, 3153); see also Kaiser v. Ameritemps, Inc., 1990-Ohio-360,
¶ 14.
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January Term, 2024
compensation claim, the commission has no jurisdiction to award any benefits in
the case. See Liposchak at ¶ 11. Tchankpa’s arguments have no merit.
B. The Commission Declined to Exercise Continuing Jurisdiction
{¶ 18} Next, we address Tchankpa’s arguments related to the commission’s
May 2021 order refusing to accept Tchankpa’s appeal from the SHO’s order
dismissing his continuing-jurisdiction motion. R.C. 4123.52(A) provides that the
commission has continuing jurisdiction to modify or change its former findings and
orders. “In cases in which a claimant has received compensation from an initial
successful claim and seeks additional compensation, any ‘modification, change,
finding, or award shall be made within five years from the date of the last payment
of compensation.’ ” Caldwell v. Whirlpool Corp., 2024-Ohio-1625, ¶ 18 (quoting
the version of R.C. 4123.52(A), 2011 Sub.H.B. No. 123, that was in effect when
Tchankpa filed his continuing-jurisdiction motion).
{¶ 19} It is undisputed that Ascena paid TTD compensation to Tchankpa
under the DHO’s July 2014 order and that no payments were made following the
SHO’s September 2014 order disallowing Tchankpa’s claim. The parties agree that
Ascena made the last payment of TTD compensation to Tchankpa in August 2014.
Tchankpa did not file his continuing-jurisdiction motion until almost six years
later—in June 2020—which was too late under R.C. 4123.52(A).
{¶ 20} Tchankpa attempts to circumvent the requirements of R.C.
4123.52(A) by arguing that the commission should have continuing jurisdiction
within five years from the date that Tchankpa learned he had received his last
compensation payment, which he contends was June 30, 2021.2 He explains that
on June 30, 2021, he “discovered” in another Franklin County Court of Common
Pleas case a declaration under oath executed by a person on behalf of Ascena. This
2. Tchankpa also refers to March 23, 2022, as a possible beginning date “to trigger the temporal
limitation” of R.C. 4123.52(A). However, he does not explain that date’s significance to his
continuing-jurisdiction argument.
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SUPREME COURT OF OHIO
declaration specifies that Ascena made TTD compensation payments to Tchankpa
from July through August 2014, which the parties have never disputed. Tchankpa
provides no support for grafting a “discovery rule” onto R.C. 4123.52(A).
Moreover, the premise of Tchankpa’s argument—that he was unaware that Ascena
did not pay him TTD compensation after August 2014—is disingenuous. Indeed,
in October 2014, Tchankpa filed a notice of appeal from the SHO’s decision
vacating the DHO’s order awarding him TTD compensation and a complaint
requesting that the court of common pleas grant him the right to participate in the
workers’ compensation fund.
{¶ 21} Tchankpa additionally argues that the SHO “failed or refused to
explain the reason for rejecting any of the sufficiently persuasive or uncontroverted
evidence” he submitted to the commission in support of his continuing-jurisdiction
motion, such as allegations of mistakes of law, mistakes of fact, and changed
circumstances. See State ex rel. Nicholls v. Indus. Comm., 1998-Ohio-616, ¶ 17
(the prerequisites for invoking the commission’s continuing jurisdiction are “(1)
new and changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear
mistake of law, or (5) error by [an] inferior tribunal”); see also State ex rel.
Tantarelli v. Decapua Ents., Inc., 2019-Ohio-517, ¶ 16 (“The commission must
both identify and explain the prerequisite on which it relies.”). Because Tchankpa
filed his motion outside the five-year period within which the commission was
permitted to exercise its continuing jurisdiction, this argument is moot.
{¶ 22} The commission correctly denied Tchankpa’s continuing-
jurisdiction motion.
C. The Tenth District Denied Tchankpa’s Request for a Writ of Mandamus
{¶ 23} Tchankpa’s next arguments pertain to Ascena’s administrative
appeal from the DHO’s order initially allowing Tchankpa’s workers’ compensation
claim. After Ascena filed its appeal from that order on July 15, 2014, the
commission granted Ascena’s request for a continuance of the hearing to pursue
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January Term, 2024
settlement. The request noted that “[a]ll parties have agreed to this continuance.”
Once negotiations stalled, Ascena filed a motion to schedule a hearing on its appeal
before the SHO, which was ultimately held on September 15, 2014. According to
Tchankpa, Ascena was required to invoke the commission’s continuing jurisdiction
if it wanted the commission to change or vacate the DHO’s order (and the hearing
administrator’s November 2013 compliance letter), because they were “final
administrative determination[s].” Tchankpa further contends that the commission
“failed to address whether the reset [of the hearing before the SHO] complied with
R.C. 4123.52,” the statute governing the commission’s continuing jurisdiction.
{¶ 24} Tchankpa’s arguments reveal his misunderstanding of the
administrative proceedings in this case: (1) the hearing administrator, in its
compliance letter, denied Ascena’s request to suspend Tchankpa’s claim but did
not adjudicate the compensability of the claim; (2) Ascena timely appealed the
DHO’s order, rendering it an interlocutory order; and (3) Ascena did not request
that the commission exercise continuing jurisdiction over the DHO’s order but
instead requested that the SHO schedule a hearing on its appeal from that order.
Thus, Tchankpa’s assertion that the Tenth District erred by concluding that “[t]here
was no attempt to invoke continuing jurisdiction pursuant to R.C. 4123.52,” 2024-
Ohio-93 at ¶ 10 (10th Dist.), has no merit. Likewise, Tchankpa’s contention that
Ascena was required to list the compliance letter in its notice of appeal from the
DHO’s order is without merit.
{¶ 25} Tchankpa further contends that the Tenth District erred by rejecting
his argument that the SHO’s hearing was held outside the mandated 45-day period.
See R.C. 4123.511(D) (a SHO “shall hold a hearing within forty-five days after the
filing of an appeal under this division”). According to Tchankpa, the fact that the
parties agreed to a continuance to pursue settlement does not override the authority
of R.C. 4123.511(D). But this argument ignores R.C. 4123.511(G)(1), which
provides that a continuance of a hearing may be permitted “for good cause.” See
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also Adm.Code 4121-3-09(C)(9) (regulating continuances of hearings before the
commission and its hearing officers). Accordingly, the court of appeals correctly
concluded that it was within the commission’s discretion to grant the request for a
continuance to allow the parties to pursue settlement. See 2024-Ohio-93 at ¶ 13
(10th Dist.).
{¶ 26} Finally, Tchankpa maintains that the Tenth District disregarded his
stipulation of evidence in its entirety and incorrectly concluded that “[t]here [was]
no showing that any relevant evidence was ignored by the magistrate,” id. at ¶ 6.
Tchankpa filed two documents captioned “stipulation of evidence.” Neither the
commission nor Ascena stipulated to this evidence, however, and they subsequently
filed a “joint certified record.” See Tenth Dist.Loc.R. 13(G). Tchankpa claims that
Ascena and the commission “removed key evidence” from their joint certified
record to affect the outcome of the case and that the magistrate ignored his evidence
because he had not filed a supporting affidavit.
{¶ 27} Tchankpa offers no support for these suppositions. Moreover, the
magistrate and the court of appeals referred to evidence that was submitted solely
by Tchankpa, further undermining his claim that his submission of evidence was
ignored in its entirety. See, e.g., 2024-Ohio-93 at ¶ 7-8, 34, 89 (10th Dist.)
(discussing the November 2013 compliance letter). Tchankpa has not
demonstrated that the court of appeals disregarded evidence that it should have
considered.
III. CONCLUSION
{¶ 28} For the reasons stated herein, Tchankpa has not established that he
is entitled to relief in mandamus. We affirm the judgment of the Tenth District
Court of Appeals.
Judgment affirmed.
__________________
Kassi E. Tchankpa, pro se.
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January Term, 2024
Dave Yost, Attorney General, and Natalie J. Tackett, Assistant Attorney
General, for appellee Industrial Commission of Ohio.
Robert Myers Law Offices, L.L.C., and Robert W. Myers, for appellee
Ascena Retail Group, Inc.
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