State ex rel. Waste Management of Ohio, Inc. v. Industrial Commission of Ohio

Decision Date20 July 2021
Docket Number19AP-453
PartiesState ex rel. Waste Management of Ohio, Inc., Relator, v. Industrial Commission of Ohio et al., Respondents.
CourtOhio Court of Appeals


On brief:

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.PA., Paul W. Flowers, and Louis E. Grube for respondents Sabrina Gelhausen and Taylor Alloway.



{¶ 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.

{¶ 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 & 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.

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 "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...

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