State ex rel. Nicholls v. Industrial Com'n of Ohio

Decision Date22 April 1998
Docket NumberNo. 95-1421,95-1421
Citation692 N.E.2d 188,81 Ohio St.3d 454
CourtOhio Supreme Court

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, for relator.

Betty D. Montgomery, Attorney General, and Michael Vanderhorst, Assistant Attorney General, for respondent Industrial Commission.

Thompson, Hine & Flory, Janis B. Rosenthal, Helen M. MacMurray and Philip B. Cochran, Columbus, for respondent American National Can Company.


Claimant contests the staff hearing officers' order on reconsideration on jurisdictional and evidentiary grounds. Our review supports the issuance of the requested writ on jurisdictional grounds.

Commission Resolution No. R94-1-8 permits reconsideration of the commission's order in three instances: (1) unusual legal, medical, or factual questions of interest to the commission; (2) new, previously undiscoverable evidence; or (3) fraud. None of these conditions exists here.

Fraud has never been alleged, leaving criteria one and two for our review. As to these latter criteria, the respondent employer claims that the possibility that claimant's nonallowed right arm amputation was considered was a legal question of interest to the commission, justifying reconsideration. This contention is rejected for two reasons.

First, there is no legal question to be debated. There has never been a debatable question about the status of nonallowed conditions in a permanent total disability determination--these conditions have always been excluded. Second, nothing in the staff hearing officers' order on reconsideration suggests that nonallowed conditions were even considered.

The employer responds that the Parman vocational report--submitted with its reconsideration request--was new, previously undiscoverable evidence. This, too, lacks merit, for while the report was "new" in terms of its submission date, it was not previously undiscoverable. The employer could have "discovered" the vocational evidence it sought months earlier, had it not waited until the adjudicatory process was well under way before seeking a vocational evaluation.

The commission, therefore, violated the terms of its own resolution in exercising reconsideration jurisdiction.

In addition, R.C. 4123.52 states:

"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."

The commission claims that reconsideration was "in its opinion justified," making it, therefore, proper. This claim has no merit. Continuing jurisdiction is not unlimited. State ex rel. B & C Machine Co. v. Indus. Comm. (1992), 65 Ohio St.3d 538, 605 N.E.2d 372. Its prerequisites are (1) new and changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or...

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  • State ex rel. Ohio State Univ. v. Pratt
    • United States
    • Ohio Court of Appeals
    • September 28, 2021
    ...rel. Neitzelt v. Indus. Comm. , 160 Ohio St.3d 175, 2020-Ohio-1453, ¶ 11, 155 N.E.3d 812, quoting State ex rel. Nicholls v. Indus. Comm. , 81 Ohio St.3d 454, 458-59, 692 N.E.2d 188 (1998). A clear mistake of law exists when the hearing officer applies the wrong law to the facts in the admin......
  • State ex rel. Sheets v. Indus. Comm'n of Ohio
    • United States
    • Ohio Court of Appeals
    • March 30, 2017
    ...clear mistake of law, which is one of the five possible bases for exercising continuing jurisdiction pursuant to State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454 (1998). Therefore, we overrule claimant's second objection. {¶ 11} Claimant argues in her third objection that the commi......
  • State ex rel. Neitzelt v. Indus. Comm'n of Ohio
    • United States
    • Ohio Supreme Court
    • April 15, 2020
    ...(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.{¶ ......
  • State ex rel. Lynch v. Indus. Comm.
    • United States
    • Ohio Court of Appeals
    • January 25, 2007
    ...does not have authority to invoke continuing jurisdiction, pursuant to R.C. 4123.52 and the case law of State ex rel. Nicholls v. Indus. Comm. (1998), 81 Ohio St.3d 454, 692 N.E.2d 188; and State ex rel. Foster v. Indus. Comm. (1999), 85 Ohio St.3d 320, 707 N.E.2d 1122. It is further the fi......
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