State ex rel. Neitzelt v. Indus. Comm'n of Ohio

Decision Date15 April 2020
Docket NumberNo. 2019-1102,2019-1102
Parties The STATE EX REL. NEITZELT, Appellee, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellants.
CourtOhio Supreme Court

Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, Dayton, and Shelee M. Busch, Troy, for appellee.

Dave Yost, Attorney General, and Kevin J. Reis, Assistant Attorney General, for appellant Industrial Commission.

Crabbe, Brown & James, L.L.P., and John C. Albert, Columbus, for appellant Vitas Healthcare Corporation of Ohio.

Per Curiam.

{¶ 1} Appellant Industrial Commission granted the request of appellee, Christina Neitzelt, to add an L4-L5 disc herniation as an allowed condition in her workers' compensation claim. Subsequently, after Neitzelt had back surgery, the commission granted the request of her employer, appellant Vitas Healthcare Corporation of Ohio, to exercise continuing jurisdiction and disallow the L4-L5 disc herniation from Neitzelt's claim, based on evidence arising from the surgery. The Tenth District Court of Appeals granted Neitzelt's request for a writ of mandamus ordering the commission to vacate its order, because that court concluded that the commission's exercise of its continuing jurisdiction was untimely and therefore improper. The commission and Vitas appealed.

{¶ 2} We reverse the Tenth District's judgment. And because we find that under the "some evidence" standard, the commission did not abuse its discretion, we deny the writ.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 3} Neitzelt injured her back at work in July 2015. Her workers' compensation claim was initially allowed for three conditions. In December 2015, Neitzelt moved to amend her claim to add an L4-L5 disc herniation as an allowed condition, based on the opinions of Drs. Nicolas Grisoni and Martti E. Kahkonen that Neitzelt's September 2015 MRI showed an L4-L5 disc herniation resulting from her work injury.

{¶ 4} In February 2016, Neitzelt underwent an independent medical examination conducted by Michael J. Griesser, M.D., and in April 2016, a district hearing officer ("DHO") granted Neitzelt's request to add the L4-L5 disc herniation to her claim. In June 2016, a staff hearing officer ("SHO") affirmed the DHO's decision. On June 29, 2016, the commission refused to further consider the employer's appeal.

{¶ 5} Neitzelt had back surgery in December 2016. Dr. Grisoni's operative report did not mention an L4-L5 disc herniation among Neitzelt's preoperative or postoperative diagnoses or in the description of procedures performed. Neitzelt sought to have "failed back surgery syndrome

" added to her claim as an allowed condition. In October 2017, she underwent an independent medical examination by Dr. Michael J. Rozen to obtain his opinion about whether she suffered from that condition and, if so, whether it was related to her work injury. Dr. Rozen opined that Neitzelt did suffer from failed-back-surgery syndrome but that the condition was not related to her work injury. Relying on Dr. Grisoni's operative report, Dr. Rozen explained that Neitzelt's 2016 surgery was performed for three nonallowed conditions unrelated to the work injury. Dr. Rozen continued, "[S]he was not identified at time of surgery to have the condition of L4-5 disc herniation and no surgery was performed on the L4-5 intervertebral disc."

{¶ 6} On October 27, 2017—16 months after the condition had been allowed—Neitzelt's employer asked the commission to invoke its continuing jurisdiction to vacate the allowance of the L4-L5 disc herniation as part of her claim, citing Dr. Rozen's report and Dr. Grisoni's operative report. In December 2017, a DHO granted this request, exercising continuing jurisdiction on the basis of new and changed circumstances-specifically, "the surgeon determined that the Injured Worker does not have an L4-L5 disc herniation." The DHO therefore disallowed Neitzelt's claimed L4-L5 disc herniation as an allowed condition.

{¶ 7} In January 2018, an SHO affirmed the DHO's order. The SHO stated, "[T]he Employer has met the burden to prove both new and changed circumstances and a clear mistake of fact." The SHO relied on the reports of Drs. Rozen and Grisoni and in particular on Dr. Rozen's statement that at the time of surgery, Neitzelt was not identified to have had the condition of an L4-L5 disc herniation. The SHO concluded that Neitzelt did not have an L4-L5 disc herniation causally related to her industrial injury. In February 2018, the commission refused to consider further appeals.

{¶ 8} In March 2018, Neitzelt filed a petition for a writ of mandamus in the Tenth District Court of Appeals asking that court to direct the commission to vacate the order in which it had exercised continuing jurisdiction and disallowed the L4-L5 disc herniation from her claim. Neitzelt asserted that the commission abused its discretion and that its decision was contrary to law and not supported by some evidence. The magistrate recommended that the court find no abuse of discretion and deny the writ. 2019-Ohio-2579, 2019 WL 2647559, ¶ 2. Neitzelt objected. The Tenth District agreed with Neitzelt that the commission had abused its discretion in exercising continuing jurisdiction to disallow the L4-L5 disc herniation from her claim. Id. at ¶ 3.

{¶ 9} Specifically, the court noted that under R.C. 4123.512(A), the commission's April 2016 order allowing an L4-L5 disc herniation as part of Neitzelt's claim was appealable to the court of common pleas within 60 days. The court then concluded that the commission's continuing jurisdiction ceased after the statutory 60-day appeal period had lapsed and that the commission's exercise of continuing jurisdiction in 2018 was therefore improper. The Tenth District granted Neitzelt a writ of mandamus ordering the commission to vacate its order exercising continuing jurisdiction and any subsequent orders based on the commission's decision to exercise continuing jurisdiction.

II. ANALYSIS
A. Mandamus Standard

{¶ 10} Mandamus relief is appropriate only 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. Baker v. Indus. Comm. , 143 Ohio St.3d 56, 2015-Ohio-1191, 34 N.E.3d 104, ¶ 12. In matters before it, the commission is the exclusive evaluator of the weight and credibility of the evidence. State ex rel. LTV Steel Co. v. Indus. Comm. , 88 Ohio St.3d 284, 287, 725 N.E.2d 639 (2000). Therefore, "[t]o be entitled to an extraordinary remedy in mandamus, the relator must demonstrate that the [commission] abused its discretion by entering an order not supported by any evidence in the record." State ex rel. WFAL Constr. v. Buehrer , 144 Ohio St.3d 21, 2015-Ohio-2305, 40 N.E.3d 1079, ¶ 12. The relator must make that showing by clear and convincing evidence. Id. Because Neitzelt's complaint challenges the commission's decision to exercise its continuing jurisdiction—a decision that is not appealable to the court of common pleas under R.C. 4123.512(A)she lacks an adequate remedy at law. State ex rel. Belle Tire Distribs., Inc. v. Indus. Comm. , 154 Ohio St.3d 488, 2018-Ohio-2122, 116 N.E.3d 102, ¶ 18, 32.

B. Timeliness of Continuing Jurisdiction

{¶ 11} R.C. 4123.52(A) provides, "The 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." This continuing jurisdiction is limited and may be invoked only when there is evidence of "(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. Nicholls v. Indus. Comm. , 81 Ohio St.3d 454, 458-459, 692 N.E.2d 188 (1998) ; see also Tantarelli v. Decapua Ents., Inc. , 156 Ohio St.3d 258, 2019-Ohio-517, 125 N.E.3d 850, ¶ 15.

{¶ 12} In Belle Tire at ¶ 24, this court explained:

R.C. 4123.512 [ (A) ] authorizes a claimant or an employer to appeal an order of the commission to a court of common pleas when the order grants or denies the right to participate in the workers' compensation system. * * * Once the right to participate for a specific condition is recognized, no subsequent rulings in the proceeding are appealable except one that terminates the right to participate.

(Emphasis added.) An appeal to the court of common pleas must be initiated within 60 days after the date that the commission's decision was received. R.C. 4123.512(A).

{¶ 13} In this case, the Tenth District held that if a commission order involves the right to participate and is therefore appealable to the court of common pleas under R.C. 4123.512(A), the commission's ability to exercise its continuing jurisdiction under R.C. 4123.52 ceases 60 days after the order was issued, regardless of the existence of any of the five criteria set forth above. 2019-Ohio-2579 at ¶ 4, citing State ex rel. Prayner v. Indus. Comm. , 2 Ohio St.2d 120, 206 N.E.2d 911 (1965) ; Todd v. Gen. Motors Corp. , 65 Ohio St.2d 18, 417 N.E.2d 1017 (1981) ; State ex rel. Gatlin v. Yellow Freight Sys., Inc. , 18 Ohio St.3d 246, 249, 480 N.E.2d 487 (1985). The commission and Vitas argue that in so holding, the Tenth District erred. Neitzelt does not defend the Tenth District's specific holding and instead argues that after the 60-day period to appeal elapsed, the matter is res judicata but may be reopened on a showing of one of the five criteria justifying the exercise of continuing jurisdiction. She argues that Vitas failed to establish any of those criteria in this case.

{¶ 14} We hold that under the plain language of R.C. 4123.52(A), the commission did not abuse its discretion by invoking its continuing jurisdiction in this case after the time for an appeal under R.C. 4123.512(A) had passed. The Tenth District's...

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