State ex rel. Waste Mgt. of Ohio, Inc. v. Indus. Comm. , 2021 Ohio 2478 ( 2021 )


Menu:
  • [Cite as State ex rel. Waste Mgt. of Ohio, Inc. v. Indus. Comm., 
    2021-Ohio-2478
    .]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    State ex rel.                                           :
    Waste Management of Ohio, Inc.,
    :
    Relator,
    :
    v.                                                                                  No. 19AP-453
    :
    Industrial Commission of Ohio et al.,                                      (REGULAR CALENDAR)
    :
    Respondents.
    :
    D E C I S I O N
    Rendered on July 20, 2021
    On brief: Dinsmore & Shohl LLP, and Brian P. Perry, for
    relator.
    On brief: Dave Yost, Attorney General, and Natalie J.
    Tackett, for respondent Industrial Commission of Ohio.
    On brief: Paul W. Flowers Co., L.P.A., Paul W. Flowers, and
    Louis E. Grube, for respondents Sabrina Gelhausen and
    Taylor Alloway.
    IN MANDAMUS
    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
    MENTEL, J.
    {¶ 1} Relator, Waste Management of Ohio, Inc., filed this original action
    requesting this court issue a writ of mandamus ordering respondent, the Industrial
    Commission of Ohio ("commission"), to vacate its order exercising continuing jurisdiction
    and awarding loss-of-use benefits to respondents, Sabrina Gelhausen and Taylor Alloway,
    in addition to the death benefits provided to Sabrina Gelhausen from the death of her
    father, Travis Gelhausen.
    No. 19AP-453                                                                               2
    {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
    Appeals, this matter was referred to a magistrate. On January 25, 2021, the magistrate
    issued a decision, including findings of fact and conclusions of law, appended hereto. The
    magistrate concluded that relator's request for a writ of mandamus should be denied as
    there was some evidence to support the commission's allowance of continuing jurisdiction
    in the case based on a clear mistake of law and some evidence to support the loss-of-use
    award for the decedent's injuries. On February 5, 2021, relator filed three objections to the
    magistrate's decision. On March 5, 2021, the commission filed its response and request to
    overrule relator's objections. Sabrina Gelhausen and Taylor Alloway also filed a
    memorandum in opposition to relator's objections to the magistrate's decision on
    March 5, 2021.
    {¶ 3} When objections are filed to a magistrate's decision, we must undertake an
    independent review of the objected matters "to ascertain that the magistrate has properly
    determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). As
    none of the parties have objected to the magistrate's findings of fact, we adopt them as our
    own.
    {¶ 4} Mandamus relief is only appropriate if the relator establishes " 'a clear legal
    right to the relief requested, a clear legal duty on the part of the commission * * * to
    provide the relief, and the lack of an adequate remedy in the ordinary course of the law.' "
    State ex rel. Franta v. Indus. Comm., 10th Dist. No. 19AP-530, 
    2021-Ohio-1501
    , ¶ 4,
    quoting State ex rel. Baker v. Indus. Comm., 
    143 Ohio St.3d 56
    , 
    2015-Ohio-1191
    , ¶ 12. "In
    matters before it, the commission is the exclusive evaluator of the weight and credibility of
    the evidence." State ex rel. Navistar, Inc. v. Indus. Comm., 
    160 Ohio St.3d 7
    , 2020-Ohio-
    712, ¶ 13, citing State ex rel. LTV Steel Co. v. Indus. Comm., 
    88 Ohio St.3d 284
    , 287,
    
    2000-Ohio-328
    . Accordingly, relator must demonstrate by clear and convincing evidence
    the commission abused its discretion submitting an order not supported by any evidence
    in the record. Navistar at ¶ 13, quoting State ex rel. WFAL Constr. v. Buehrer, 
    144 Ohio St.3d 21
    , 
    2015-Ohio-2305
    , ¶ 12.
    {¶ 5} Abuse of discretion goes beyond an error of law but suggests that the
    decision was unreasonable, arbitrary, or unconscionable. State ex rel. Dreamer v. Mason,
    
    115 Ohio St.3d 190
    , 
    2007-Ohio-4789
    , ¶ 18, citing State ex rel. Worrell v. Ohio Police &
    No. 19AP-453                                                                               3
    Fire Pension Fund, 
    112 Ohio St.3d 116
    , 
    2006-Ohio-6513
    , ¶ 10. "A decision is unreasonable
    if there is no sound reasoning process that would support that decision. It is not enough
    that the reviewing court, were it deciding the issue de novo, would not have found that
    reasoning process to be persuasive, perhaps in view of countervailing reasoning processes
    that would support a contrary result." (Emphasis sic.) AAAA Ents., Inc. v. River Place
    Community Urban Redevelopment Corp., 
    50 Ohio St.3d 157
    , 161 (1990).
    {¶ 6} Relator first objects to the magistrate's decision arguing that the
    commission lacked continuing jurisdiction in this case based on a clear mistake of law.
    Pursuant to R.C. 4123.52(A), "[t]he jurisdiction of the industrial commission * * * 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."
    Continuing jurisdiction is only allowed when there is evidence to support " '(1) new and
    changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5)
    error by [an] inferior tribunal.' " State ex rel. Neitzelt v. Indus. Comm., 
    160 Ohio St.3d 175
    , 
    2020-Ohio-1453
    , ¶ 11, quoting State ex rel. Nicholls v. Indus. Comm., 
    81 Ohio St.3d 454
    , 458-59 (1998). When one or more of these circumstances is recognized, the error
    must be "identified and explained." State ex rel. Gobich v. Indus. Comm., 
    103 Ohio St.3d 585
    , 
    2004-Ohio-5990
    , ¶ 15.
    {¶ 7} In State ex rel. Neitzelt, the Supreme Court of Ohio considered whether the
    commission properly asserted continuing jurisdiction based on a clear mistake of fact.
    The Neitzelt court explained the standard of review on this issue writing:
    Having concluded that the commission's exercise of its
    continuing jurisdiction was timely, we proceed to consider
    [appellee's] claim that the commission abused its discretion
    when it found that [appellant] established both new or
    changed circumstances and a mistake of fact. In making this
    determination, we apply a deferential standard: we will not
    order the commission to vacate its decision if the decision is
    supported by some evidence. State ex rel. Seibert v. Richard
    Cyr, Inc., 
    157 Ohio St.3d 266
    , 
    2019-Ohio-3341
    , 
    134 N.E.3d 1185
    , ¶ 17. Evaluation of the weight and credibility of the
    evidence is the exclusive province of the commission, which
    " 'has substantial leeway in both interpreting and drawing
    inferences from the evidence before it.' " Id. at ¶ 30, quoting
    State ex rel. Lawson v. Mondie Forge, 
    104 Ohio St.3d 39
    ,
    
    2004-Ohio-6086
    , 
    817 N.E.2d 880
    , ¶ 34.
    No. 19AP-453                                                                              4
    Id. at ¶ 23.
    {¶ 8} The Neitzelt court ultimately concluded "the commission did not abuse its
    discretion by concluding that [appellant] established the existence of a mistake of fact."
    Id. at ¶ 27; see also State ex rel. Sheppard v. Indus. Comm., 
    139 Ohio St.3d 223
    , 2014-
    Ohio-1904, ¶ 22 (finding "the commission did not abuse its discretion when it determined
    that the hearing officer's failure to address the intervening-injury argument was a mistake
    of law that justified the commission's reopening the claim to examine the issue"); State ex
    rel. Holdren v. Indus. Comm., 
    105 Ohio St.3d 291
    , 
    2005-Ohio-1734
    , ¶ 16-17, citing Gobich
    (writing that in Gobich, "the commission ultimately granted [reconsideration] on the
    basis that the SHO's order was based on 'clear mistakes of law.' We, however, found an
    abuse of discretion."); State ex rel. Crisp v. Indus. Comm. & Cedar Fair LP, 10th Dist. No.
    10AP-438, 
    2012-Ohio-2077
     (adopting the magistrate's decision that found "the exercise of
    continuing jurisdiction amounted to an abuse of discretion").
    {¶ 9} While relator's objection is limited to the magistrate's finding that the
    commission did not abuse its discretion exercising continuing jurisdiction based on a
    clear mistake of law, we must also examine the commission's determination that there
    was a clear mistake of fact as relator's complaint in mandamus asserts both grounds for
    continuing jurisdiction were erroneously decided. For ease of discussion, we will first
    consider whether appellant properly invoked continuing jurisdiction based on a clear
    mistake of fact.
    {¶ 10} The evidence is this case is largely not in dispute. Jolene Szapowal, the only
    witness to the accident, attested through a sworn affidavit as follows:
    I was traveling behind a waste management garbage truck
    driven by Travis Gelhausen * * * [a]fter witnessing the crash, I
    parked my vehicle and attempted to administer aid to Mr.
    Gelhausen, the driver of the garbage truck. * * * When I
    approached the garbage truck I could see Mr. Gelhausen from
    his ribs to his knees and could see that he was still breathing.
    (Stip.R. at 49.)
    {¶ 11} Szapowal continued stating that Gelhausen was breathing for approximately
    three minutes before he ultimately expired. Dr. Donato J. Borrillo provided a medical
    opinion in this case determining that Gelhausen's brief period of breathing was
    No. 19AP-453                                                                                  5
    "consistent with still being alive." (Stip.R. at 56.) Borillo also found that decedent's loss of
    function in his extremities would have been permanent given the nature of the injuries to
    the cervical spine. The report by Dr. Paul T. Hogya stated that Gelhausen's breathing is
    known as "agonal respiration" and was not "adequate respiration to sustain oxygenation."
    (Stip.R. at 52.) Hogya continued stating "[a]t no time would Mr. Gelhausen have been
    conscious with these actual injuries to even appreciate any alleged loss of use of his right
    or left arm." (Stip.R. at 52.) The physicians reviewed the competing reports and provided
    addenda in response. Borrillo wrote that a layperson can recognize the act of breathing
    and that while agonal respiration can be a sign of impending death that does not change
    the fact that decedent was alive and breathing after the accident. In his addendum, Hogya
    wrote "whether or not [Gelhausen] is considered to have been 'alive' for three minutes or
    less, there was no conscious ability for him to recognize or appreciate a total loss of use of
    the upper and lower extremities and/or vision." (Stip.R. at 60.) Hogya dismissed
    Szapowal's first-hand account concluding "Szapowal estimated some three minutes of
    breathing. From a clinical standpoint, these estimates must always be considered with 'a
    grain of salt' due to the stressful emergency nature of the situation. For instance, that is
    why estimates of seizure activity are notoriously inaccurate." (Stip.R. at 60.)
    {¶ 12} The district hearing officer ("DHO") denied the loss-of-use awards finding
    that "decedent essentially experienced instantaneous death." (Stip.R. at 3.) While the
    DHO acknowledged Szapowal's affidavit states that decedent "was alive and breathing for
    approximately a three minute period," he disregarded the affidavit on the basis that it was
    not from a "medical professional." (Stip.R. at 2.) On appeal, the staff hearing officer
    ("SHO") denied Gelhausen's loss-of-use award concluding "[d]ecedent did not survive the
    accident when he died at the scene and pronounced dead immediately after being
    removed from the vehicle." (Stip.R. at 6.) The SHO wrote that, the statement by Szapowal
    was unpersuasive because an "affidavit of the non-medical bystander fails to medically
    establish that the [d]ecedent survived this accident." (Stip.R. at 6.) The initial appeal was
    refused in an order mailed November 1, 2018.
    {¶ 13} The claimants filed a motion for reconsideration which the commission
    found that the matter should be reviewed for continuing jurisdiction based on a clear
    mistake of fact and law. By order mailed on March 27, 2019, the commission granted
    No. 19AP-453                                                                                             6
    claimants' motion for reconsideration concluding there was a clear mistake of fact as
    decedent had survived for at least three minutes after the accident. The commission also
    found the SHO made a clear mistake of law by failing to properly apply State ex. rel.
    Moorehead v. Indus. Comm., 112 Ohio St.3d. 27, 
    2006-Ohio-6364
    , to the facts of the case.
    {¶ 14} After a careful review of the record, we find the commission did not abuse
    its discretion invoking continuing jurisdiction based on a clear mistake of fact. As
    explained by the commission, the SHO made a clear mistake of fact stating that the
    decedent died in the accident when he had, in fact, survived for three minutes after the
    accident.1 This conclusion is well supported in the record. Szapowal's affidavit provided a
    first-hand account of the accident that stated the decedent was breathing for
    approximately three minutes before he expired. Based on the nature of the decedent's
    injuries, Borillo was able to provide a medical opinion that the decedent's "cervical injury
    correlates with the witness statement and affidavit of Ms. Szapowal who found the injured
    worker still breathing at the accident scene * * *. His brief period of breathing is
    consistent with still being alive, as his autopsy did not reveal a decapitation or crush
    injury of the head." (Stip.R. at 55-56.) While Hogya reached a contrary conclusion, he
    stated that the decedent was exhibiting agonal breathing. "Agonal" is defined in the
    Merriam-Webster dictionary as "of, relating to, or associated with the act of dying:
    occurring just before death." (Stip.R. at 63.)2 There is no doubt that agonal breathing
    "carries a poor prognosis and is an indicator of impending death." (Stip.R. at 63.)
    However, "impending death" does not equate to actual death. As such, even accepting that
    decedent was exhibiting agonal breathing, despite competing medical evidence from
    Borillo, there is no dispute among the medical experts that decedent was breathing in
    some capacity for approximately three minutes after the accident.
    {¶ 15} Given the only witness to the accident attested to observing the decedent
    breathing for three minutes and Borillo concluded decedent's breathing was consistent
    1 The SHO disregarded the witness's account on the basis that a "non-medical bystander fails to medically
    establish that the Decedent survived this accident." (Stip.R. at 6.) As noted by Borillo, a lay witness is
    more than capable of identifying whether someone is breathing or not. Moreover, there is no statutory
    basis to support the SHO's conclusion that an on-site medical evaluation is required. Such an
    interpretation would result in denying valid claims if a medical professional is not present at the time of
    an accident.
    2 The example provided in the definition is also instructive: "Kennedy had a very weak pulse and was
    experiencing what's called agonal breathing, labored, gasping, the body's final attempts to sustain life."
    (Stip.R. at 63.)
    No. 19AP-453                                                                               7
    with still being alive, however briefly, after the accident, the commission did not abuse its
    discretion concluding that the SHO made a clear mistake of fact decedent died
    instantaneously in the accident. Regardless of whether we would have found that
    reasoning persuasive and reached the same result, the commission's conclusion that there
    was a clear mistake of fact is not unreasonable.
    {¶ 16} Next, we must consider whether the commission abused its discretion in
    exercising continuing jurisdiction that there was a clear mistake of law by the SHO in its
    application of Moorehead. A brief review of Moorehead is instructive.
    {¶ 17} In Moorehead, the decedent fell from a raised platform suffering spinal cord
    injuries. Decedent was rendered a quadriplegic and never regained consciousness after
    the fall. The decedent died 90 minutes after the accident. The commission denied the
    decedent's widow's scheduled loss compensation on the basis that the decedent could not
    perceive or experience the hardship that caused the loss of use between injury and death.
    The Supreme Court granted the writ of mandamus ordering the commission to award the
    loss-of-use benefits. The Moorehead court wrote, "[it] should not graft duration-of-
    survival or cognizance requirements to R.C. 4123.57(B), because the statute has no text
    imposing them." Moorehead at ¶ 19.
    {¶ 18} Here, the SHO identified Moorehead as the correct precedent on loss-of-use
    benefits in cases involving death rapidly after injury and its applicability to the present
    case. The SHO wrote, "[Moorehead] indicated that R.C. 4123.57(B) does not specify a
    required length of time of survival after a loss-of-use injury before benefits pursuant to
    R.C. 4123.57(B) are payable." (Stip.R. at 6.) While the hearing officer understood the
    controlling case law at issue, he applied the incorrect facts to Moorehead, namely that
    decedent died instantaneously when he survived for approximately three minutes after
    the accident. As such, the SHO's error was not the misapplication of Moorehead to the
    facts in this case but his application of incorrect facts to Moorehead.
    {¶ 19} Accordingly, we sustain relator's objection to the extent that the magistrate
    erred in finding there was some evidence to support that there was a clear mistake of law
    and failing to also consider whether there was a clear mistake of fact to invoke continuing
    jurisdiction. While we find there was no evidence to support a clear mistake of law, the
    commission properly invoked continuing jurisdiction based on a clear mistake of fact. As
    No. 19AP-453                                                                                8
    such, regardless of its erroneous determination that there was a clear mistake of law, the
    commission was able to reexamine all aspects of the case and reevaluate the evidence
    regarding the loss-of-use benefits claim. State ex rel. Sheppard v. Indus. Comm., 
    139 Ohio St.3d 223
    , 
    2014-Ohio-1904
    , ¶ 24 (finding once the commission exercises continuing
    jurisdiction and vacates an order it is required to reexamine all facets of claimant's
    eligibility for compensation).
    {¶ 20} Accordingly, we sustain in part and overrule in part relator's first objection.
    {¶ 21} In his second objection, relator argues the magistrate erred in finding that
    the commission provided an adequate explanation for continuing jurisdiction based on
    the SHO's mistake of law and fact. As set forth previously, once one of the prerequisites
    for continuing jurisdiction is identified, the commission must provide an explanation for
    invoking continuing jurisdiction. "It is not enough to say, for example, that there has
    been a clear error of law. The order must also state what that error is. This ensures that
    the party opposing reconsideration can prepare a meaningful defense to the assertion that
    continuing jurisdiction is warranted. It also permits a reviewing court to determine
    whether continuing jurisdiction was properly invoked." (Internal citations omitted.) State
    ex rel. Gobich, 
    2004-Ohio-5990
    , at ¶ 15.
    {¶ 22} In the instant case, the commission provided an explanation for continuing
    jurisdiction based on the SHO's mistake of law and fact. The commission wrote in
    relevant part:
    02/05/2019-After further review and discussion, it is the
    decision of the Commission the Dependent has met the
    burden of proving the Staff Hearing Officer order, issued
    10/13/2018, contains a clear mistake of fact in the order from
    which reconsideration is sought, and a clear mistake of law of
    such character that remedial action would clearly follow.
    Specifically, the Staff Hearing Officer failed to properly apply
    the rule of State ex rel. Moorehead v. Industrial Comm., 112
    Ohio St.3d. 27, 
    2006-Ohio-6364
    , 
    857 N.E. 2d 1203
    , to the
    facts in this claim. Therefore, the Commission exercises
    continuing jurisdiction pursuant to R.C. 4123.52 and State ex
    rel. Nicholls v. Indus. Comm., 
    81 Ohio St.3d 454
    , 692 N.E.
    2nd 188 (1998), State ex rel. Foster v. Indus. Comm., 
    85 Ohio St.3d 320
    , 
    707 N.E.2d 1122
     (1999), and State ex rel. Gobich v.
    Indus. Comm., 
    103 Ohio St. 3d 585
    , 
    2004-Ohio-5990
    , 
    817 N.E. 2d 398
    , in order to correct this error.
    No. 19AP-453                                                                               9
    ***
    The Commission also relies upon State ex rel. Moorehead v.
    Indus Comm., supra, which held R.C. 4123.57(B) does not
    require any specific duration of survival after an employee
    suffers a loss of use, nor does it require the employee to be
    cognizant of the loss. The Commission finds R.C. 4123.57(B) is
    applicable here because the Decedent did in fact survive the
    injury, for at least three minutes. In support of its findings the
    Commission relies upon Ms. Szapowal's affidavit stating that
    following the injury, she saw the Decedent continue to breathe
    for approximately three minutes before he expired in her
    presence.
    (Stip.R. at 13-14.)
    {¶ 23} Based on the language employed by the commission, the mistake of fact was
    identified as the SHO's finding that the decedent did not survive the injury when he had,
    in fact, survived the accident for approximately three minutes. Similarly, the commission
    identified the mistake of law as the misapplication of Moorehead to the facts in the case.
    Gobich does not require the commission to provide an all-encompassing discussion
    regarding each mistake but only to "identif[y] and explain[]" the basis for reconsidering
    the initial determination of the hearing officer. Gobich at ¶ 15. As such, there is some
    evidence to support the conclusion that the commission identified and explained the
    bases for continuing jurisdiction. Relator's second objection is overruled.
    {¶ 24} Finally, relator contends that the commission erred in awarding "850 weeks
    of weeks of compensation in a claim in which no loss by severance occurred." (Relator's
    Brief at 12.) Pursuant to R.C. 4123.57(B), the loss of a leg is paid for 200 weeks and the
    loss of an arm is paid for 225 weeks. In State ex. rel Arberia, LLC v. Indus. Comm., 10th
    Dist. No. 13AP-1024, 
    2014-Ohio-5351
    , this court examined the amounts awarded for loss-
    of-use compensation to the survivor or dependent of a claimant when the claimant died
    soon after the injury. Relevant to this appeal, we rejected the requirement of severance for
    injured workers to have been entitled to a loss-of-use award as well as that loss of use is
    restricted to the period of survival regardless of whether the decedent had lived for a short
    period after the accident. Arberia at ¶ 14, 18-20. Accordingly, we agree with the
    magistrate's analysis that the commission did not abuse its discretion in awarding 850
    No. 19AP-453                                                                              10
    weeks of compensation pursuant to R.C. 4123.57(B) and Ohio Adm.Code 4123-3-37.
    Relator's third objection is overruled.
    {¶ 25} After an examination of the magistrate's decision, an independent review of
    the record pursuant to Civ.R. 53, and due consideration of relator's objections, we find the
    magistrate properly determined the factual issues and appropriately applied the law, as
    modified herein. For the reasons set forth in the magistrate's decision and those expressed
    herein, relator's objections are overruled in part and sustained in part. Pursuant to Civ.R.
    53(D)(4), we adopt the decision of the magistrate as our own, including findings of fact
    and conclusions of law, as modified by our own conclusions of law discussed in this
    decision. In accordance with the magistrate's recommendation, we deny relator's request
    for a writ of mandamus.
    Objections overruled in part and sustained in part;
    writ of mandamus denied.
    BROWN and KLATT, JJ., concur.
    _____________
    No. 19AP-453                                                                             11
    APPENDIX
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    State ex rel.                                :
    Waste Management of Ohio, Inc.,
    :
    Relator,
    :
    v.                                                                No. 19AP-453
    :
    Industrial Commission of Ohio et al.,                        (REGULAR CALENDAR)
    :
    Respondents.
    :
    MAGISTRATE'S DECISION
    Rendered on January 25, 2021
    Dinsmore & Shohl LLP, and Brian P. Perry, for relator.
    Dave Yost, Attorney General, and Natalie J. Tackett, for
    respondent Industrial Commission of Ohio.
    Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E.
    Grube, for respondents Sabrina Gelhausen and Taylor
    Alloway.
    IN MANDAMUS
    {¶ 26} Relator, Waste Management of Ohio, brings this original action seeking a
    writ of mandamus ordering respondent, the Industrial Commission of Ohio, to vacate its
    order exercising continuing jurisdiction and awarding loss-of-use-benefits to respondents
    Sabrina Gelhausen ("Sabrina") and Taylor Alloway in addition to the death benefits
    already payable to Sabrina based upon the death of her father, Travis Gelhausen
    ("Gelhausen").
    {¶ 27} The disputed issue in this case was whether the decedent survived the
    accident that took his life long enough to support a loss-of-use award for complete loss of
    No. 19AP-453                                                                           12
    use of decedent's upper and lower extremities due to a severe neck injury sustained in the
    accident.
    Findings of Fact:
    {¶ 28} 1. Gelhausen sustained fatal injuries in the course and scope of his
    employment with Waste Management as a roll-off truck driver. While driving the vehicle
    on October 18, 2017 in the vicinity of Gates Mills, Ohio at approximately 11:18 a.m., he
    approached a stop sign on the terminating leg of a T-intersection, failed to stop, and
    attempted to make a right turn at a speed that caused the truck to overturn and slide into
    a tree. (Stip. at 24.) Witnesses at the scene found Gelhausen trapped in the cab and only
    partially visible.   Emergency personnel arrived at the scene and found Gelhausen
    unresponsive. Emergency personnel required special equipment to extricate Gelhausen
    from the truck, which was accomplished at 12:16 p.m., and he was pronounced dead at
    12:18 p.m. by telephone communication with an emergency room physician. (Stip. at 24.)
    {¶ 29} 2. Waste Management is a self-insured employer in Ohio's Workers'
    Compensation system.
    {¶ 30} 3. Gelhausen's claim was allowed and payment of death benefits began to
    Gelhausen's dependent daughter Sabrina. (Stip. at 38.) Alloway is Sabrina's mother;
    Gelhausen and Alloway were not married.
    {¶ 31} 4. On May 2, 2018, Alloway, on behalf of Sabrina, filed a motion requesting
    payment of scheduled loss awards pursuant to R.C. 4123.57 for Gelhausen's total loss of
    use of the following body parts: right arm, left arm, right leg, left leg, both eyes, and
    bilateral hearing loss.
    {¶ 32} 5. The loss-of-use motion was heard before a district hearing officer
    ("DHO") on August 20, 2018.         The claimants dismissed the aspect of the motion
    requesting an award for bilateral hearing loss.
    {¶ 33} 6. In support of the motion, the claimants submitted the affidavit of a
    witness to the accident, Jolene Szapowal, who attested as follows:
    1) I am a resident of Geauga County, Ohio with a date of
    birth of January 20, 1979 and a mailing address of 11117
    Chillicothe Road, Chesterland, Ohio 44026.
    2) I am a witness to a motor vehicle collision that occurred
    on October 18, 2017 at the intersection of Bringham Road
    No. 19AP-453                                                                           13
    and Chagrin River Road, located in Gates Mills, Cuyahoga
    County, Ohio.
    3) I was traveling behind a Waste Management garbage
    truck driven by Travis Gelhausen. We were traveling
    westbound on Bringham Road when the garbage truck
    attempted a right hand turn on Chagrin River Road, when
    the garbage truck crashed.
    4) After witnessing the crash, I parked my vehicle and
    attempted to administer aid to Mr. Gelhausen, the driver of
    the garbage truck.
    5) When I approached the garbage truck I could see
    Mr. Gelhausen from his ribs to his knees and could see that
    he was still breathing.
    6) At no point in time that I was with Mr. Gelhausen was he
    able to move his arms or legs.
    7) Mr. Gelhausen continued breathing for approximately
    three minutes while I rubbed his leg in an effort to comfort
    him.
    8) Mr. Gelhausen ultimately expired in my presence as I
    witnessed his body seize and he stopped breathing.
    (Stip. at 49.)
    {¶ 34} 7. The claimants submitted a file review prepared by Donato Borrillo, M.D.,
    dated July 3, 2018. (Stip. at 55.) Based largely upon the Szapowal affidavit, Dr. Borrillo
    concluded that Gelhausen had survived the accident for a brief period of time and, based
    upon autopsy findings, would have sustained permanent loss of use of his upper and
    lower extremities and both eyes. Dr. Borrillo also conclude that the "brief period of
    breathing" witnessed by Szapowal was "consistent with still being alive, as [Gelhausen's]
    autopsy did not reveal a decapitation or crush injury of the head." (Stip. at 56.) Dr.
    Borrillo concluded that the loss of functional use of extremities would have been
    permanent based upon injuries to the cervical spine.
    {¶ 35} 8. Amanda Spencer, D.O., of the Cuyahoga County Medical Examiner's
    Office, prepared an autopsy report dated March 15, 2018. (Stip. at 45.) In addition to
    evidence of postmortem organ donation, including the eyes, heart, and long bones of the
    No. 19AP-453                                                                              14
    legs, Dr. Spencer noted injuries from the accident including puncture wounds to the chest,
    a hemorrhagic subluxation of the atlanto-axial vertebrae, and hemorrhagic fracture in the
    superior aspect of the C4 vertebral body with overlying prevertebral fascia hemorrhage.
    Dr. Spencer further noted that the skull was intact. (Stip. at 42-43.)
    {¶ 36} 9. Waste Management obtained the report of Paul T. Hogya, M.D., who
    opined that the breathing observed by Szapowal was "agonal respiration" which was not
    "adequate respiration to sustain oxygenation." (Stip. at 52.) Dr. Hogya discounted
    Szapowal's observations as nonmedical evidence from a lay witness and concluded that
    there was insufficient evidence to prove that Gelhausen survived the accident with
    complete loss of use of extremities and eyes. " At no time would Mr. Gelhausen have been
    conscious with these actual injuries to even appreciate any alleged loss of use of his right
    or left arm. Traumatic atlanto-axial subluxation may be associated with varying degrees of
    upper extremity paresis, but not all individuals that survive traumatic atlanto-axial
    subluxation have complete loss of use of the upper extremities." (Stip. at 52.) Dr. Hogya
    repeated these conclusions regarding Gelhausen's loss of use of his lower extremities. Dr.
    Hogya described agonal respirations as "more of an automatic response of the last
    remnants of the brainstem," which would be confused by laypersons as ordinary
    respirations. (Stip. at 52.)
    {¶ 37} 10. Drs. Hogya and Borrillo reviewed each other's opinions and produced
    addenda in which each adhered to his prior opinion. Dr. Hogya restated his view that
    "whether or not [Gelhausen] is considered to have been 'alive' for three minutes or less,
    there was no conscious ability for him to recognize or appropriate a total loss of use of the
    upper and lower extremities and/or vision." (Stip. at 60.) In his addendum, Dr. Borrillo
    observed that while Dr. Hogya acknowledged the observation by Szapowal, he discounted
    its value. Dr. Borrillo stated, "[i]n my medical opinion, a layperson can recognize the act
    of breathing. Mr. Gelhausen's breathing was not shallow and not in need of auscultation
    with a stethoscope, rather it is characterized as audible and characterized by Dr. Hogya as
    agonal." (Emphasis sic.) (Stip. at 62.) Dr. Borrillo conceded that agonal breathing can be
    an indicator of impending death, but that this did not change the fact that Gelhausen was
    alive and breathing immediately after the accident. (Stip. at 63.)
    No. 19AP-453                                                                                15
    {¶ 38} 11. The DHO issued an order mailed August 24, 2018 denying the
    claimants' loss-of-use awards on the basis that Gelhausen had not survived the accident
    for a discernible period of time. (Stip. at 2.) The DHO specifically found that Szapowal's
    affidavit was insufficient to establish such survival.
    {¶ 39} 12. The claimants filed an appeal and the matter was heard before a staff
    hearing officer ("SHO") on October 1, 2018. Relying on Dr. Hogya's report and again
    discounting Szapowal's observations, the SHO agreed with the DHO that loss of use was
    not established for the claim.
    {¶ 40} 13. The claimants filed a further appeal to the commission, which was
    initially refused in an order mailed November 1, 2018. (Stip. at 8.) Claimants then filed a
    motion for reconsideration and the commission entered an interlocutory order mailed
    December 1, 2018, finding that the matter warranted possible continuing jurisdiction
    based upon the alleged presence of a clear mistake of fact and law. (Stip. at 11.)
    {¶ 41} 14. The full commission held a hearing on February 5, 2019. (Stip. at 13.)
    The commission mailed an order on March 27, 2019 with two commissioners voting to
    grant reconsideration and a third voting against. (Stip. at 15.) The majority found a clear
    error of law in the SHO's application of controlling the Supreme Court of Ohio's case law.
    The commission accordingly issued an order relying on Dr. Borrillo's report and
    Szapowal's affidavit to award scheduled loss of awards pursuant to R.C. 4123.57(B) for
    loss of use of the left arm, right arm, left leg, and right leg, but denying loss of use of the
    eyes. (Stip. at 14.)
    {¶ 42} 15. Waste Management filed its complaint in mandamus with this court on
    July 17, 2019.
    Discussion and Conclusions of Law:
    {¶ 43} In order for this court to issue a writ of mandamus as a remedy from a
    determination of the commission, relator must show a clear legal right to the relief sought
    and that the commission has a clear legal duty to provide such relief. State ex rel.
    Pressley v. Indus. Comm., 
    11 Ohio St.2d 141
     (1967). A clear legal right to a writ of
    mandamus exists where the relator shows that the commission abused its discretion by
    entering an order that is not supported by any evidence in the record. State ex rel.
    Elliott v. Indus. Comm., 
    26 Ohio St.3d 76
     (1986). On the other hand, where the record
    No. 19AP-453                                                                            16
    contains some evidence to support the commission's findings, there has been no abuse of
    discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
    Co., 
    29 Ohio St.3d 56
     (1987). Furthermore, questions of credibility and the weight to be
    given evidence are clearly within the discretion of the commission as factfinder. State ex
    rel. Teece v. Indus. Comm., 
    68 Ohio St.2d 165
     (1981).
    {¶ 44} Waste Management first asserts that the commission could not invoke
    continuing jurisdiction in the matter to set aside the SHO's order. The commission may
    invoke continuing jurisdiction over a prior order under R.C. 4123.52(A) when the
    claimant demonstrates new and changed circumstances, fraud, a clear mistake of fact, or
    a clear mistake of law. State ex rel. Nicholls v. Indus. Comm., 
    81 Ohio St.3d 454
     (1998).
    "The presence of one of these prerequisites must be clearly articulated in any commission
    order seeking to exercise reconsideration jurisdiction" and the error must be both
    "identified and explained." State ex rel. Gobich v. Indus. Comm., 
    103 Ohio St.3d 585
    ,
    
    2004-Ohio-5990
    , ¶ 15.
    {¶ 45} The clear mistake of fact to support continuing jurisdiction must be more
    than a legitimate disagreement as to the evidence, but a factual finding in the SHO's order
    that is "not supported by the record." State ex rel. Arnett v. Indus. Comm., 10th Dist. No.
    11AP-238, 
    2012-Ohio-4903
    . Similarly, a clear mistake of law exists in the case when the
    hearing officer applies the wrong law to the facts in the administrative record. State ex
    rel. McNea v. Indus. Comm., 
    131 Ohio St.3d 408
    , 
    2012-Ohio-1296
    , ¶ 10. When the
    commission decides to exercise continuing jurisdiction and vacate a hearing officer's
    order, it will re-examine all aspects of the claim. State ex rel. Sheppard v. Indus. Comm.,
    
    139 Ohio St.3d 223
    , 
    2014-Ohio-1904
    , ¶ 24.
    {¶ 46} The commission in this case could conclude that there was a clear mistake
    of law in the SHO's order. The commission found that the SHO had failed to properly
    apply State ex rel. Moorehead v. Indus. Comm., 
    112 Ohio St.3d 27
    , 
    2006-Ohio-6364
    ,
    which remains the leading case from the Supreme Court on loss-of-use benefits in cases
    when death ensues rapidly after injury. In Moorehead, the decedent fell head-first onto a
    concrete floor while working on a raised platform, suffering severe spinal cord and other
    injuries.   The unrebutted medical evidence established that the injuries would have
    rendered the decedent quadriplegic. The decedent never regained consciousness and died
    No. 19AP-453                                                                             17
    approximately 90 minutes after the fall. When the decedent's widow applied for death
    benefits and scheduled loss compensation based on the loss of use of both arms and legs,
    the commission denied the application for scheduled loss compensation on the basis that
    the decedent could not have consciously perceived and experienced the hardship caused
    by the loss of use in the period between injury and death. The Supreme Court disagreed
    with this rationale and issued a writ ordering the commission to award the loss-of-use
    benefits, stating as follows:
    Similarly, there is no language in R.C. 4123.57(B) requiring
    that an injured worker be consciously aware of his paralysis
    in order to qualify for scheduled loss benefits. * * *
    This court should not graft duration-of-survival or cognizance
    requirements to R.C. 4123.57(B), because the statute has no
    text imposing them. * * *
    The appellant proffered medical evidence establishing that
    William Moorehead sustained the physical loss of use of his
    limbs as a result of his fall. Consciousness of that loss during
    an extended period of survival is not required by R.C.
    4123.57(B), and the commission therefore incorrectly
    applied the statute when it denied the appellant's application
    on that basis.
    Moorehead at ¶ 16-20.
    {¶ 47} In the present case, the SHO appeared to rely on Dr. Hogya's opinion that
    Gelhausen had "no conscious ability for him to recognize or appropriate a total loss of
    use." (Stip. at 60.) The commission concluded that this was a clear mistake of law given
    Moorehead's unequivocal holding that there is no "cognizance requirement" under
    R.C. 4123.57(B). Moorehead at ¶ 19.         Once the commission accepted continuing
    jurisdiction to correct this clear error of law, the commission could re-examine all aspects
    of the claim, and form its own conclusions regarding the weight of evidence. Sheppard,
    
    supra, at ¶ 24
    .       Confronted with the conflict between Szapowal's affidavit and
    Dr. Borrillo's report on one hand, and Dr. Hogya's conclusion that Szapowal had observed
    only agonal respirations, the commission could conclude that the evidence supported a
    finding that Gelhausen survived the accident for a discernable period with injuries that
    would have rendered him a quadriplegic.
    No. 19AP-453                                                                             18
    {¶ 48} Waste Management relies upon this court's refusal to issue a writ on similar
    facts in State ex rel. Sagraves v. Indus. Comm., 10th Dist. No. 10AP-1030, 2012-Ohio-
    1010. In that case, the commission had concluded that the decedent had not survived his
    accident for an appreciable time supporting a loss-of-use award, and this court found no
    abuse of discretion. As this court has frequently been compelled to note, the fact that the
    commission can reach different conclusions in similar cases on comparable facts does not
    mean that an abuse of discretion has occurred sufficient to support a writ of mandamus.
    The facts of each claim are reviewed independently by the commission, and particularly
    when addressed in the context of a mandamus action, the commission's conclusions when
    weighing evidence are reviewed under a deferential standard as outlined above.
    {¶ 49} Similarly, in the recent case of State ex rel. Koepf v. Indus. Comm., 10th
    Dist. No. 18AP-753, 
    2019-Ohio-3789
    , ¶ 11-12, 14, this court refused to issue a writ to
    vacate the commission's order denying loss of use awards. "In cases where the claimant
    has passed away, this court has repeatedly looked to whether the evidence supports that,
    but for the decedent's death, there was a loss of use that would have been permanent. * * *
    The commission's denial of the claim for total loss of use was based on some evidence. * *
    * Finally, we reject relator's argument that the magistrate should have accepted the report
    of Dr. Borrillo as establishing that decedent had sustained a total loss of use of his eyes,
    ears, arms and legs. The commission 'need only cite evidence in support of its decision,
    and the presence of contrary evidence is immaterial.' " State ex rel. George v. Indus.
    Comm., 
    130 Ohio St.3d 405
    , 
    2011-Ohio-6036
    , ¶ 11.            Because the medical records
    themselves and the report of [respondent's medical expert] each independently
    constitutes 'some evidence' upon which the commission relied, this court must defer to
    the determination of the commission." Koepf at ¶ 14.
    {¶ 50} Koepf illustrates that this court will defer to the commission in loss-of-use
    cases where the report of the commission is first, consistent with the law as set forth by
    the Supreme Court in Moorehead, and second, supported by some evidence. In the
    present case, the commission had before it Szapowal's clear affidavit based on first-hand
    observation that Gelhausen was breathing in some manner for approximately three
    minutes, and Dr. Borrillo's report interpreting that testimony and the other medical
    evidence in the case. Dr. Hogya's report reaching contrary conclusions on the same
    No. 19AP-453                                                                              19
    evidence does not negate the evidence upon which the commission chose to rely.
    Ultimately, both doctors agreed that the breathing, whether characterized as agonal
    respirations or not, were a sign of impending death, which by definition would precede
    actual death. On this basis, the commission could conclude both that the SHO had
    committed a clear error of law in failing to apply Moorehead, and that Gelhausen had
    survived the accident for the requisite amount of time to support loss of use under R.C.
    4123.57(B).
    {¶ 51} Finally, Waste Management asserts that the commission erred in awarding
    850 weeks of scheduled loss benefits. The magistrate notes the commission's ultimate
    order in this case does not specify the duration of the loss-of-use award, despite the fact
    that the parties argued the matter before the commission. (Stip. at 179-80.) Pursuant to
    R.C. 4123.57(B), loss of a leg is to be paid for 200 weeks, and loss of an arm is to be paid
    for 225 weeks. In State ex rel. Arberia, LLC v. Indus. Comm., 10th Dist. No. 13AP-1024,
    
    2014-Ohio-5351
    , this court addressed the amounts payable under loss-of-use
    compensation to a claimant's survivor or dependent where the claimant died shortly after
    suffering injury. In Arberia, the court noted that R.C. 4123.57(B) provides as follows:
    When an award under this division has been made prior to
    the death of an employee all unpaid installments accrued or
    to accrue under the provisions of the award shall be payable
    to the surviving spouse, or if there is no surviving spouse, to
    the dependent children of the employee and if there are no
    such children, then to such dependents as the administrator
    determines.
    When an employee has sustained the loss of a member by
    severance, but no award has been made on account thereof
    prior to the employee's death, the administrator shall make
    an award [to survivors or dependents].
    Id. at ¶ 11.
    {¶ 52} This court in Arberia rejected first, strict application of the terms
    "severance" in R.C. 4123.57(B) to mean actual removal of the limb, noting that paralysis
    was the equivalent of severance as interpreted by the Supreme Court in Moorehead and
    State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 
    102 Ohio St.3d 341
    , 
    2004-Ohio-3166
    .
    This court in Arberia then determined that loss of use would not be limited to the period
    of survival, even when the decedent had lived for only a brief period after the accident,
    No. 19AP-453                                                                          20
    because Ohio Adm.Code 4123-3-37 allows for lump-sum advancement of awards, and
    where the decedent is entitled to apply for scheduled loss benefits under R.C. 4123.57(B)
    before death, the potential for lump-sum award means that the full amount of
    compensation may be paid no matter how brief the period of survival. Arberia at ¶ 18-20.
    As long as the lump-sum award does not exceed the compensation that the decedent
    might have received, it is awardable to the decedent's dependents. 
    Id.
    {¶ 53} In summary, the magistrate concludes that the commission did not abuse
    its discretion in exercising continuing jurisdiction and that there is some evidence to
    support the loss-of-use award for Gelhausen's injuries. The commission also did not
    abuse its discretion in awarding 850 weeks of compensation pursuant to R.C. 4123.57(B)
    and Ohio Adm.Code 4123-3-37. It is the magistrate's decision and recommendation that
    the court deny the request writ of mandamus.
    /S/ MAGISTRATE
    MARTIN L. DAVIS
    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).