State ex rel. Thistledown v. Person ( 2024 )

[Cite as State ex rel. Thistledown v. Person, 2024-Ohio-1449.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jack Thistledown Racino, LLC, :
Relator, :
v. : No. 23AP-20
Chanel Person et al., : (REGULAR CALENDAR)
Respondents. :
DECISION
Rendered on April 16, 2024
On brief: Buckley King, and Elizabeth Crosby, for relator.
On brief: Dworken & Bernstein Co., L.P.A., and Kristen M.
Kraus, for respondent Chanel Person.
On brief: Dave Yost, Attorney General, and John Smart, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
BEATTY BLUNT, J
{¶ 1} Relator, Jack Thistledown Racino, LLC, seeks a writ of mandamus ordering
respondent, Industrial Commission of Ohio (“commission”) to vacate its order granting
respondent, Chanel Person (“claimant”) temporary total disability (“TTD”) compensation
and to reinstate the order of the commission staff hearing officer (“SHO”) denying TTD
compensation.
{¶ 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. The magistrate considered the action on its merits
and issued a decision, including findings of fact and conclusions of law, which is appended
hereto. The magistrate concluded that the commission did not abuse its discretion when it
No. 23AP-20 2
found that claimant was entitled to TTD compensation and further, that the commission’s
order granting reconsideration of the SHO’s order denying TTD compensation did not
lack any legal basis supporting continuing jurisdiction over the case. Accordingly, the
magistrate recommended this court deny relator’s request for a writ of mandamus.
{¶ 3} No objections have been filed to the magistrate’s decision. “If no timely
objections are filed, the court may adopt a magistrate’s decision unless the court determines
that there is an error of law or other defect evident on the face of the decision.” Civ.R.
53(D)(4)(c).
{¶ 4} Upon review, we have found no error in the magistrate’s findings of fact or
conclusions of law. Therefore, we adopt the magistrate’s decision as our own, including the
findings of fact and the conclusions of law therein, and conclude that relator failed to
demonstrate it is entitled to a writ of mandamus. In accordance with the magistrate’s
decision, the requested writ of mandamus is denied.
Writ of mandamus denied.
MENTEL, P.J., and EDELSTEIN, J., concur.
________________
No. 23AP-20 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jack Thistledown Racino, LLC, :
Relator, :
v. : No. 23AP-20
Chanel Person et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE’S DECISION
Rendered on January 17, 2024
Buckley King, and Elizabeth Crosby, for relator.
Dworken & Bernstein Co., L.P.A., and Kristen M. Kraus, for
respondent Chanel Person.
Dave Yost, Attorney General, and John Smart, for respondent
Industrial Commission of Ohio.
IN MANDAMUS
{¶ 5} Relator Jack Thistledown Racino, LLC seeks a writ of mandamus ordering
respondent Industrial Commission of Ohio (“commission”) to vacate its order granting
respondent Chanel Person (“claimant”) temporary total disability (“TTD”) compensation
and to reinstate the order of the commission staff hearing officer (“SHO”) denying TTD
compensation.
No. 23AP-20 4
I. Findings of Fact
{¶ 6} 1. On July 14, 2019, the claimant sustained an injury in the course of and
arising out of her employment with relator. In a Bureau of Workers’ Compensation
(“BWC”) first report of an injury, occupational disease or death (“FROI” or “FROI-1”) form
signed by the claimant on July 14, 2019, the claimant’s injury was described as follows: “Fell
backward, stumble back on box fan placed on floor.” (Stip. at 43.) The claimant’s workers’
compensation claim was initially allowed for contusion of lower back and pelvis (buttock).
{¶ 7} 2. On June 19, 2019, Louis J. DeMicco, D.O., conducted an initial
examination of the claimant. At a follow-up appointment on August 28, 2019, Dr. DeMicco
noted the claimant’s statement that she stopped working for relator “because the back was
bothering her and she was having trouble climbing in and out of the car.” (Stip. at 436.)
However, at that time, the claimant continued to work as a driver for the Greater Cleveland
Regional Transit Authority (“RTA”).
{¶ 8} 3. On October 23, 2019, based on Dr. DeMicco’s reports, the following
conditions were additionally recognized in the claim: strain of muscle, fascia and tendon of
lower back (lumbar); and strain of muscle fascia and tendon of lower back (thoracic).
{¶ 9} 4. A commission district hearing officer (“DHO”) issued an order on June 19,
2020 finding the claimant had a permanent partial disability of five percent.
{¶ 10} 5. On July 31, 2020, the claimant underwent an MRI through the lumbar
spine. Based on the MRI, Michael J. Paley, M.D., indicated in a report the following: “Slight
disc bulge and hypertrophic changes of the posterior element at L3-4. Facet hypertrophy
produces mild left-sided foraminal stenosis at L4-5. Grade 1 anterior spondylolisthesis,
bulging of the disc and facet arthrosis produce moderate to severe right and severe left-
sided foraminal stenosis at L5-S1. There is left and probable right L5 nerve root
impingement.” (Stip. at 520.)
{¶ 11} 6. On March 10, 2021, Sami E. Moufawad, M.D., examined the claimant for
purposes of an electrodiagnostic study of the lumbar spine and lower limbs. Dr. Moufawad
stated that “[t]he electrodiagnostic findings are compatible with bilateral L5 motor
radiculopathy as seen on needle EMG” and that “[t]he prolonged F waves and absent H
reflex on the right side is also compatible with S1 radiculopathy with mainly proximal
demyelination.” (Stip. at 550.)
No. 23AP-20 5
{¶ 12} 7. A DHO ordered on May 19, 2021 that the claim additionally be allowed for
the conditions of substantial aggravation of pre-existing spondylolisthesis L5-S1, and L5-
S1 radiculopathy. On July 3, 2021, an SHO affirmed the DHO’s May 19, 2021 order.
{¶ 13} 8. Dr. DeMicco submitted a series of MEDCO-14 physician’s report of work
ability (“MEDCO-14”) forms beginning with a MEDCO-14 form dated May 25, 2021. In the
May 25, 2021 MEDCO-14, Dr. DeMicco indicated that the claimant could not do the job
held on the date of injury from March 17 to June 30, 2021. Dr. DeMicco completed
additional MEDCO-14 forms on the following dates: June 24, 2021, July 15, 2021,
August 23, 2021, August 25, 2021, October 21, 2021, November 23, 2021, December 23,
2021, January 20, 2022, February 17, 2022, March 24, 2022, April 21, 2022, and May 19,
2022. In the May 19, 2022 MEDCO-14, Dr. DeMicco indicated the claimant could not do
the job held on the date of injury from March 17, 2021 to June 30, 2022.
{¶ 14} 9. The claimant submitted a C-86 motion dated July 2, 2021 requesting that
TTD compensation be paid from March 16, 2021 and to continue. The claimant also
submitted a C-84 request for temporary total compensation form dated July 2, 2021. In the
C-84 request, the claimant stated that she last worked anywhere on March 8, 2021 and that
the reason for leaving work was “pain/injury.” (Stip. at 687.) The claimant filed additional
C-84 requests dated July 6, 2021 and August 3, 2021.
{¶ 15} 10. In an order dated September 1, 2021, a DHO granted the claimant’s
July 2, 2021 C-86 motion and awarded TTD compensation from March 17 to August 26,
2021 and to continue based on submission of supporting medical proof. The DHO stated
the order was based on the claimant’s testimony, the notes of Dr. DeMicco, and Dr.
DeMicco’s MEDCO-14 forms dated July 15, 2021 and August 24, 2021.
{¶ 16} 11. At the request of the BWC, Howard A. Pinsky, D.O., conducted an
independent medical examination of the claimant on November 22, 2021. Based on the
examination and taking into consideration only the allowed conditions in the claim,
Dr. Pinsky opined that the claimant was not capable of returning to her position of
employment held as a driver on the date of the injury, noting that the claimant was “limited
in her lifting, bending, and carrying activities.” (Stip. at 530.) Dr. Pinsky further opined that
“[c]onsidering prior treatment and current treatment which would provide supportive care,
it is my opinion, MMI is present.” (Stip. at 530.)
No. 23AP-20 6
{¶ 17} 12. On January 4, 2022, a DHO denied a motion filed by the administrator of
BWC to terminate the claimant’s TTD compensation. The DHO found that “the allowed
conditions in this claim have not reached a level of maximum medical improvement.” (Stip.
at 685.)
{¶ 18} 13. Ralph J. Kovach, M.D., conducted an independent medical examination
of the claimant on March 30, 2022 on the issue of disputed requests for treatments.
Dr. Kovach recommended that claimant “should have a consultation with spinal surgeon.”
(Stip. at 535.)
{¶ 19} 14. On April 30, 2022, Teresa Kay Larsen, D.O., conducted an independent
medical examination of the claimant and completed a report. Regarding whether the
claimant became totally disabled on March 19, 2021 as a result of her July 14, 2019 injury,
Dr. Larsen stated in the report the following:
Based on a reasonable degree of medical certainty,
examination of the claimant, and review of the medical
records, it is my opinion that the claimant did not become
totally disabled from the injuries in this claim on 03/19/2021.
Review of the records reveals that the claimant continued
working as a bus operator for RTA following the injury on
7/14/19. The examinations of Dr. DeMicco document similar
lumbar findings over the years from 2019 through 2022, with
no examination finding to support the change in her work
ability. Review of the examinations by other providers over
this period of time reveal reports of a pain level of 0 on
8/30/19, no back pain on her DOT physical examination on
8/19/20, and no radiating pain, numbness, or weakness on
her Cleveland Clinic evaluation on 12/11/21. The lumbar
injury in this case was mild in nature, and she was able to
continue full time employment. The physical therapy visits
indicate pain behavior which is out of proportion to the nature
of the injury and her full-time employment status over the
years. Review of the prior independent medical examinations
also reveals significant pain behavior. On my examination,
there is significant pain behavior, including on straight leg
raise testing with pain reported on ankle motion prior to the
leg being straightened. There are no physical findings to
support any neurological deficit or active radiculopathy. Her
pain behavior and the inconsistencies on review of the records
raise concern for the reliability of her presentation. While it is
noted that new conditions have been included in the claim,
her pain behavior and findings are essentially unchanged over
the years since her injury.
No. 23AP-20 7
(Stip. at 673.) Dr. Larsen opined that the claimant had reached maximum medical
improvement (“MMI”) for all allowed conditions in the claim. Furthermore, Dr. Larsen
opined that based on the allowed conditions in the claim, the claimant was able to return
to work as a valet with relator and was able to return to work as a bus driver for RTA.
{¶ 20} 15. In a letter dated May 28, 2022, Dr. DeMicco responded to Dr. Larsen’s
report, stating that the claimant “most certainly cannot work with the allowed conditions
in her claim.” (Stip. at 388.) Dr. DeMicco further stated that the claimant “is not Maximum
Medical Improved at this time.” (Stip. at 388.)
{¶ 21} 16. In an order dated June 16, 2022, an SHO vacated the September 1, 2021
DHO order and denied the claimant’s July 2, 2021 C-86 motion. The SHO found there was
insufficient medical evidence presented to support that the claimant “was and is
temporarily and totally disabled independently due to the allowed conditions of this claim.”
(Stip. at 30.) Relying on the March 22, 2022 report of Dr. Larsen, the SHO made the
following findings:
The Injured Worker continued to work after this injury with
this Employer and RTA, until she went full time with RTA and
quit this Employer in 2019. She continued to work full time
with RTA until she went off work on 03/17/2021 because “she
could no longer do the job”. In the interim, she had an
intervening injury on 05/10/2020. She had a significant fall
in which she fractured her right wrist. She was off work until
August of 2020 due to that injury. She then had a subsequent
incident on 12/11/2021. Dr. Larsen reviewed the extensive
medical records, including the records from the Injured
Worker’s two intervening falls. She noted the Injured
Worker’s significant pain behavior noted throughout the
medical records, and the unchanged symptomatology noted
in her physician of record notes from 2019 through 2021. The
Hearing Officer finds that there have been no changes to
justify temporary total disability compensation suddenly
beginning on 03/17/2021 for the allowed conditions of this
claim, in which there was never any temporary total disability
compensation paid previously.
The Hearing Officer does not find the opinion of Louis
DeMicco, D.O., persuasive or sufficient to justify temporary
total disability compensation in this claim without any
plausible explanation given the two intervening injuries and
the lack of any change in symptomatology or objective
findings since 2019. The Hearing Officer acknowledges the
additional allowances ordered by an Staff Hearing Officer on
No. 23AP-20 8
06/30/2021, yet those additional conditions were based upon
medical evidence such as an MRI performed on 07/3/2020.
Again, the Injured Worker’s symptomatology from 2019
through 2021 did not change or fluctuate. Thus, the Hearing
Officer finds a lack of any new and changed circumstances to
justify temporary total disability compensation two years post
injury. Thus, the request for temporary total disability
beginning [March 17, 2021], is denied.
(Stip. at 30-31.)
{¶ 22} 17. On June 16, 2022, the same date as the SHO order denying TTD
compensation, an SHO issued an order that vacated the January 4, 2022 DHO order and
granted the motion filed by the BWC administrator to terminate the claimant’s TTD
compensation. Based on the report of Dr. Larsen, the SHO found the claimant had reached
MMI for the allowed physical conditions in the claim. Therefore, the SHO terminated the
claimant’s TTD compensation effective June 6, 2022.
{¶ 23} 18. The claimant filed a brief in support of an appeal from the June 16, 2022
SHO order denying TTD compensation.1 On July 6, 2022, two SHOs issued an order on
behalf of the commission refusing the claimant’s appeal from the June 16, 2022 SHO order
denying TTD compensation.
{¶ 24} 19. The claimant filed a request for reconsideration from the July 6, 2022
order of the commission. In an interlocutory order dated August 30, 2022, the commission
vacated the July 6, 2022 order. The commission found that the claimant “presented
evidence of sufficient probative value to warrant adjudication of the Request for
Reconsideration regarding the alleged presence of a clear mistake of law of such character
that remedial action would clearly follow.” (Stip. at 4.) The commission stated that “it is
alleged in denying the Injured Worker’s request for temporary total disability
compensation the Staff Hearing Officer erroneously applied a standard of ‘new and
changed circumstances,’ which is not applicable on the issue because there has not been a
prior finding of maximum medical improvement in the claim.” (Stip. at 4.) The commission
ordered the claimant’s request for reconsideration be set for a hearing.
{¶ 25} 20. In an order mailed on October 15, 2022, the commission decided that the
claimant met her burden of demonstrating the June 16, 2022 SHO order denying TTD
1 The brief as also described by the claimant as “a brief in support of injured worker’s request for a third level
hearing.” (Stip. at 21.)
No. 23AP-20 9
compensation contained “a clear mistake of law of such character that remedial action
would clearly follow.” (Stip. at 1.) The commission specifically found that the SHO “erred
in denying the Injured Worker’s request for temporary total disability compensation
because the Staff Hearing Officer erroneously applied a standard of ‘new and changed
circumstances.’ ” (Stip. at 1.) In order to correct the error, the commission exercised
continuing jurisdiction pursuant to R.C. 4123.52, granted the claimant’s request for
reconsideration, and vacated the June 16, 2022 SHO order denying TTD compensation.
Furthermore, the commission granted the claimant’s appeal to the extent provided in the
order.
{¶ 26} Noting that the claimant was seeking TTD compensation beginning
March 17, 2021 and to continue upon submission of appropriate proof, the commission
found the claimant “met her burden of proving by a preponderance of the evidence she was
temporarily and totally disabled as a result of the allowed conditions in the claim from
[March 17, 2021] through and including [June 6, 2022].” (Stip. at 2.) The commission relied
on the MEDCO-14 forms submitted by Dr. DeMicco in support of the order. The
commission made the following findings:
The Commission finds the office notes of Dr. DeMicco
document the Injured Worker had been experiencing
worsening symptoms in her low back in early 2021 and was
referred for an EMG/NCV by Dr. DeMicco which was
approved by a District Hearing Officer in an order issued
[January 20, 2021]. The EMG/NCV was performed on
[March 10, 2021 and demonstrated the Injured Worker was
suffering from bilateral L5 radiculopathy. Dr. DeMicco totally
removed the Injured Worker from the workforce on [March
17, 2021]. Subsequently, the claim was additionally allowed
for substantial aggravation of pre-existing spondylolisthesis
L5-S1 and L5-S1 radiculopathy by a Staff Hearing Officer in
an order issued [July 3, 2021].
(Stip. at 2.) The commission found “the Injured Worker reached maximum medical
improvement for all of the allowed conditions in this claim as of [June 6, 2022] based on
the report of Howard Pinsky, D.O.” (Stip. at 2.) In conclusion, the commission found that
“the foregoing circumstances and the medical evidence contained within the file support
the Injured Worker was temporarily and totally disabled for the period referenced in this
order.” (Stip. at 2.)
No. 23AP-20 10
{¶ 27} 21. Relator commenced this mandamus action by filing its complaint on
January 11, 2023.
II. Discussion and Conclusions of Law
{¶ 28} Relator seeks a writ of mandamus directing the commission to vacate its
order granting the claimant TTD compensation.
A. Requirements for Mandamus
{¶ 29} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, a relator must establish a clear legal right to the
requested relief, that the commission has a clear legal duty to provide such relief, and the
lack of an adequate remedy in the ordinary course of the law. State ex rel. Belle Tire
Distribs. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122; State ex rel. Pressley v.
Indus. Comm., 11 Ohio St.2d 141 (1967). Where the commission’s factual determination is
supported by some evidence, it has not abused its discretion and this court must uphold the
decision. State ex rel. Seibert v. Richard Cyr, Inc., 157 Ohio St.3d 266, 2019-Ohio-3341, ¶
44, citing State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373, 376 (1996).
{¶ 30} The commission is “exclusively responsible for assessing the weight and
credibility of evidence.” State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-
Ohio-6036, ¶ 11, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987).
Where the commission’s decision is supported by some evidence, the presence of contrary
evidence in the record is immaterial. State ex rel. West. v. Indus. Comm., 74 Ohio St.3d
354, 356 (1996), citing Burley.
B. Temporary Total Disability Compensation
{¶ 31} “ ‘The purpose of TTD compensation is to “compensate an injured employee
for the loss of earnings that he [or she] incurs while the injury heals.” ’ ”
Ewell v. Montgomery Cty. Court of Common Pleas, 10th Dist. No. 13AP-1078, 2014-Ohio-
3047, ¶ 13, quoting Cordial v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 05AP-473,
2006-Ohio-2533, ¶ 8, quoting State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376, 380
(2000). R.C. 4123.56, which governs TTD compensation, sets forth the circumstances
under which a claimant is entitled to receive TTD compensation:
If an employee is unable to work or suffers a wage loss as the
direct result of an impairment arising from an injury or
No. 23AP-20 11
occupational disease, the employee is entitled to receive
compensation under this section, provided the employee is
otherwise qualified. If an employee is not working or has
suffered a wage loss as the direct result of reasons unrelated
to the allowed injury or occupational disease, the employee is
not eligible to receive compensation under this section. It is
the intent of the general assembly to supersede any previous
judicial decision that applied the doctrine of voluntary
abandonment to a claim brought under this section.
R.C. 4123.56(F). See State ex rel. Autozone Stores, Inc. v. Indus. Comm. of Ohio, 10th
Dist. No. 21AP-294, 2023-Ohio-633.
{¶ 32} The statute also contains other restrictions on qualifying for or continuing to
receive an award of TTD compensation:
[P]ayment [for TTD] shall not be made for the period when
any employee has returned to work, when an employee’s
treating physician has made a written statement that the
employee is capable of returning to the employee’s former
position of employment, when work within the physical
capabilities of the employee is made available by the employer
or another employer, or when the employee has reached the
maximum medical improvement.
R.C. 4123.56(A). “TTD benefits are paid during the healing and treatment period until:
(1) the employee returns to work; (2) the employee’s treating physician states that the
employee is capable of returning to the former position of employment; or (3) the
temporary disability becomes permanent.” Ewell at ¶ 13. Thus, “R.C. 4123.56(A)
designates maximum medical improvement as one of four statutory bases for denying
temporary total disability compensation.” State ex rel. Barnes v. Indus. Comm., 114 Ohio
St.3d 444, 2007-Ohio-4557, ¶ 14. MMI is defined as “a treatment plateau (static or well-
stabilized) at which no fundamental functional or physiological change can be expected
within reasonable medical probability in spite of continuing medical or rehabilitative
procedures. An injured worker may need supportive treatment to maintain this level of
function.” Ohio Adm.Code 4121-3-32(A)(1).
C. Continuing Jurisdiction of the Commission
{¶ 33} The continuing jurisdiction of the commission is governed by R.C. 4123.52.
Pursuant to this statute, the commission has continuing jurisdiction over each case and,
subject to certain temporal limitations, it “may make such modification or change with
No. 23AP-20 12
respect to former findings or orders with respect thereto, as, in its opinion is justified.” R.C.
4123.52(A). Despite this “broad statutory language,” the Supreme Court of Ohio has
construed R.C. 4123.52 to limit the commission’s continuing jurisdiction, holding that “the
prerequisites for its exercise 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.” State ex rel.
Knapp v. Indus. Comm., 134 Ohio St.3d 134, 2012-Ohio-5379, ¶ 13, citing State ex rel.
Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 458-59 (1998), citing State ex rel. Cuyahoga
Hts. Local School Dist. Bd. of Edn. v. Johnston, 58 Ohio St.2d 132 (1979). See State ex rel.
Griffey v. Indus. Comm., 125 Ohio St. 27, 31 (1932) (stating that G.C. 1465-86, which
allowed the commission to “ ‘from time to time make such modification or change with
respect to former findings or orders with respect thereto, as, in its opinion may be justified’
* * * could not have been intended to take away all finality to the orders and findings of the
commission”).
D. Application
{¶ 34} Relator asserts the commission erred by exercising continuing jurisdiction on
the basis of a mistake of law in the SHO’s order denying TTD compensation. “Continuing
jurisdiction is proper when an order contains an obvious mistake of fact or law.” State ex
rel. Foster v. Indus. Comm. of Ohio, 85 Ohio St.3d 320, 322 (1999). Such error of law must
be clear, not merely the possibility of an error. Nicholls at 459. A commission order seeking
to exercise continuing jurisdiction through reconsideration must both identify and explain
the basis for the invocation of such jurisdiction. State ex rel. Gobich v. Indus. Comm., 103
Ohio St.3d 585, 2004-Ohio-5990, ¶ 15. Thus, “[i]t is not enough to say * * * that there has
been a clear error of law,” but the order invoking continuing jurisdiction “must also state
what that error is.” Id. (stating that such clear explanation is necessary for the party
opposing reconsideration to “prepare a meaningful defense to the assertion that continuing
jurisdiction is warranted” and for a court reviewing such order to “determine whether
continuing jurisdiction was properly invoked”).
{¶ 35} Relator argues the commission did not comply with Nicholls because it did
not “identify[] language within the order clearly and unambiguously demonstrating” that
the SHO “decided the issue of disability on an incorrect standard of law.” (Relator’s Brief at
31.) In its August 30, 2022 interlocutory order, the commission found that the claimant
No. 23AP-20 13
“presented evidence of sufficient probative value to warrant adjudication of the Request for
Reconsideration regarding the alleged presence of a clear mistake of law of such character
that remedial action would clearly follow.” (Stip. at 4.) The commission stated that “it is
alleged in denying the Injured Worker’s request for temporary total disability
compensation the Staff Hearing Officer erroneously applied a standard of ‘new and
changed circumstances,’ which is not applicable on the issue because there has not been a
prior finding of maximum medical improvement in the claim.” (Stip. at 4.) In its September
21, 2022 order, the commission found that the SHO “erred in denying the Injured Worker’s
request for temporary total disability compensation because the Staff Hearing Officer
erroneously applied a standard of ‘new and changed circumstances.’ ” (Stip. at 1.) Thus, the
commission complied with the requirements of Foster, Nicholls, and Gobich by specifically
setting forth and explaining the clear error of law justifying the exercise of continuing
jurisdiction.
{¶ 36} Next, relator contends there is no evidence to support the commission’s
exercise of continuing jurisdiction. Relator states that the SHO’s order “in no way set forth
‘new and changed circumstances’ as a legal basis for denying benefits” to the claimant.
(Relator’s Brief at 26.) Relator’s contention is not borne out by the text of the SHO’s order
denying the claimant’s request for TTD compensation. In that order, the SHO stated: “Thus,
the Hearing Officer finds a lack of any new and changed circumstances to justify temporary
total disability compensation two years post injury. Thus, the request for temporary total
disability beginning [March 17, 2021], is denied.” (Stip. at 31.) In this way, the SHO found
that the lack of new and changed circumstances did not justify TTD compensation and,
therefore, denied the request for such compensation. Thus, contrary to relator’s contention,
the plain text of the SHO’s order reflects that the lack of new and changed circumstances
served as the legal basis for denying the claimant’s request for TTD compensation.
{¶ 37} Relator also argues the commission’s order granting reconsideration was
without a legal basis supporting continuing jurisdiction. Relator contends the commission
“cited no law to support its conclusion that ‘new and changed circumstances’ is NOT an
applicable ‘standard’ in denying temporary total disability compensation.” (Emphasis sic.)
(Relator’s Brief at 28.)
No. 23AP-20 14
{¶ 38} As detailed above, R.C. 4123.56 sets forth the standard for determining
entitlement to TTD compensation and provides the circumstances under which TTD
compensation either may not be granted or must be terminated. Nothing in the text of R.C.
4123.56 requires a claimant to demonstrate new and changed circumstances in order to be
entitled to TTD compensation. This is notable considering that the General Assembly has
employed the phrase “new and changed circumstances” in other contexts within Ohio’s
Workers’ Compensation Act. Under R.C. 4123.57, which governs permanent partial
disability (“PPD”) compensation, the commission is prohibited from considering a
subsequent application for PPD compensation on the same claim “unless supported by
substantial evidence of new and changed circumstances developing since the time of the
hearing on the original or last determination.” Similarly, R.C. 4123.58, which governs
permanent total disability (“PTD”) compensation, contains a provision preventing the
commission’s consideration of a subsequent application for PTD compensation unless the
claimant “present[s] evidence of new and changed circumstances.”2 Thus, the General
2 R.C. 4123.58 was amended by 2021 Am.Sub.H.B. No. 75 (“H.B. 75”), which in part added R.C. 4123.58(G)
effective September 28, 2021.
Following the amendments to R.C. 4123.58 enacted in H.B. 75, R.C. 4123.58 was amended by the 134th
General Assembly a second time in Am.Sub.H.B. No. 281 (“H.B. 281”). H.B. 281, which became effective April
6, 2023, made a minor change to R.C. 4123.58(F) by striking through and thereby deleting the word
“handicapped,” which immediately preceded “individuals,” and inserting the word “with disabilities” after the
aforementioned “individuals.” However, the remaining text of R.C. 4123.58 in H.B. 281 did not include the
text of R.C. 4123.58(G). H.B. 281 gave no specific indication that it intended to amend R.C. 4123.58 by
removing R.C. 4123.58(G) through the usual means of striking through the existing text of R.C. 4123.58(G).
See Ohio Adm.Code 103-5-01 (“Old matter that is to be omitted from an existing codified or uncodified section
is indicated by retaining the matter as it appears in the section and striking it through with a horizontal line.”).
Section 2 of H.B. 281 provided in pertinent part: “That existing sections * * * 4123.58 * * * of the Revised Code
are hereby repealed.” See State v. Wilson, 77 Ohio St.3d 334, 337 (1997) (stating in considering the effect of a
former version of R.C. 151.52 that “[m]atter to be affected by an ‘existing sections’ repeal must appear in the
body of the enrolled Act and must be stricken through”).
The Legislative Service Commission includes the text of R.C. 4123.58(G) in its official online version of the
Revised Code. The following note from the Legislative Service Commission appears after the text of
R.C. 4123.58 on its website: “The Legislative Service Commission presents the text of this section as a
composite of the section as amended by multiple acts of the General Assembly. This presentation recognizes
the principle stated in R.C. 1.52(B) that amendments are to be harmonized if reasonably capable of
simultaneous operation.” Legislative Service Commission, Section 4123.58, https://codes.ohio.gov/ohio-
revised-code/section-4123.58 (accessed August 8, 2023).
The provision in R.C. 1.52 noted by the Legislative Service Commission provides:
No. 23AP-20 15
Assembly has used the phrase “new and changed circumstances” when establishing
standards for adjudicating subsequent applications for compensation under Ohio’s
Workers’ Compensation Act. See generally Wilson v. Durrani, 164 Ohio St.3d 419, 2020-
Ohio-6827, ¶ 30, quoting Hulsmeyer v. Hospice of Southwest Ohio, Inc., 142 Ohio St.3d
236, 2014-Ohio-5511, ¶ 26 (stating that the “ ‘General Assembly’s use of particular language
to modify one part of a statute but not another part demonstrates that the General Assembly
knows how to make that modification and has chosen not to make that modification in the
latter part of the statute’ ”). No language concerning “new and changed circumstances”
appears in the provisions governing TTD compensation in R.C. 4123.56.
{¶ 39} However, courts have found a new and changed circumstances requirement
to be applicable in the context of continuing jurisdiction to consider a subsequent
application for TTD compensation following a finding of MMI that terminates a prior or
initial period of TTD compensation. State ex rel. Bing v. Indus. Comm. of Ohio, 61 Ohio
St.3d 424 (1991). The Supreme Court of Ohio recognized in Bing that “claimants who had
previously been declared as MMI could experience temporary exacerbation of their
condition that justified further treatment or even temporary total disability compensation,
as the claimant struggled to recover his or her previous level of well-being.” State ex rel.
Conrad v. Indus. Comm., 88 Ohio St.3d 413, 415-16 (2000), citing Bing. Based on this
recognition, the court in Bing found that “even where temporary total disability
compensation payments have been previously terminated, R.C. 4123.52 grants the
Industrial Commission continuing jurisdiction to award temporary total disability
If amendments to the same statute are enacted at the same or different
sessions of the legislature, one amendment without reference to another, the
amendments are to be harmonized, if possible, so that effect may be given
to each. If the amendments are substantively irreconcilable, the latest in
date of enactment prevails. The fact that a later amendment restates
language deleted by an earlier amendment, or fails to include language
inserted by an earlier amendment, does not of itself make the amendments
irreconcilable. Amendments are irreconcilable only when changes made by
each cannot reasonably be put into simultaneous operation.
R.C. 1.52(B). See State v. McCullough, 9th Dist. No. 28917, 2018-Ohio-4499, ¶ 11-12; Wilson at 337.
The magistrate infers the absence of R.C. 4123.58(G) from the text of H.B. 281 may have occurred because
H.B. 281 was initially passed by the Ohio House of Representatives on June 16, 2021, which was before the
effective date of H.B. 75. Regardless, the continued applicability of R.C. 4123.58(G) is not at issue in this
matter. Rather, reference to R.C. 4123.58(G) as amended by H.B. 75 in this decision is merely to illustrate the
General Assembly’s previous use of the phrase “new and changed circumstances” in the context of Ohio’s
workers’ compensation law.
No. 23AP-20 16
compensation where the claimant has again become temporarily totally disabled.” Bing at
426. Thus, “[t]he commission’s continuing jurisdiction * * * allows for reinstatement of
temporary total disability compensation after an MMI determination if new and changed
circumstances warrant.” State ex rel. Moore v. Internatl. Truck & Engine, 116 Ohio St.3d
272, 2007-Ohio-6055, ¶ 35. See Barnes at ¶ 15 (stating that “a temporary worsening, or
flare-up, of a claimant’s condition can warrant renewed temporary total disability
compensation as the claimant struggles to return to the former baseline”).
{¶ 40} Here, however, the claimant had not been found to be at MMI prior to her
request for TTD compensation, which was her first and only request for TTD compensation
in the claim. Nothing in Bing or subsequent cases suggests that a finding of new and
changed circumstances is required to establish entitlement to TTD compensation prior to
a finding of MMI that terminates a prior or initial period of TTD compensation. The
continuing jurisdiction of the commission to reinstate TTD compensation after a finding of
MMI based on new and changed circumstances was not at issue when the SHO issued the
order denying TTD compensation based on the “lack of any new and changed
circumstances to justify temporary total disability compensation.” (Stip. at 31.)
{¶ 41} Neither the statutory provisions governing entitlement to TTD compensation
nor the cases interpreting such law require a claimant making an initial request for TTD
compensation to demonstrate new and changed circumstances. Nor does relator
demonstrate otherwise by pointing to any case in which a claimant making an initial
request for TTD compensation is required to demonstrate new and changed circumstances.
Because nothing in the applicable statutes, administrative code provisions, or caselaw
requires a claimant to demonstrate new and changed circumstances in order to establish
entitlement to an initial period of TTD compensation prior to a finding of MMI or permits
the denial of such a request for TTD compensation where the claimant does not
demonstrate new and changed circumstances, it was a clear error of law for the SHO to
deny TTD compensation on the basis of a lack of new and changed circumstances. Thus,
contrary to relator’s contentions, the commission’s order granting reconsideration did not
lack any legal basis supporting continuing jurisdiction.
No. 23AP-20 17
E. Conclusion
{¶ 42} Based on the foregoing, relator has not demonstrated a clear legal right to the
requested relief or that the commission is under a clear legal duty to provide such relief.
Accordingly, it is the decision and recommendation of the magistrate that relator’s request
for a writ of mandamus should be denied.
/S/ MAGISTRATE
JOSEPH E. WENGER IV
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). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.