The opinion
[Cite as State ex rel. Cincinnati v. Indus. Comm., 2024-Ohio-5010.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. City of Cincinnati, :
Relator, : No. 23AP-332
v. : (REGULAR CALENDAR)
Industrial Commission of Ohio et al., :
Respondents. :
D E C I S I O N
Rendered on October 17, 2024
On brief: Dinsmore & Shohl LLP, Brian P. Perry, and
Anthony V. Jagoditz, for relator.
On brief: Dave Yost, Attorney General, and John R. Smart,
for respondent Industrial Commission of Ohio.
On brief: Fox & Fox Co., L.P.A., Karen P. Mitchell, and
Stephanie D. Horn, for respondent Michael K. Hines.
____
IN MANDAMUS
LUPER SCHUSTER, J.
{¶ 1} Relator, City of Cincinnati (“employer”), initiated this original action seeking
a writ of mandamus ordering respondent, Industrial Commission of Ohio (“commission”),
to reinstate the October 25, 2022 tentative order and deny the application of respondent,
Michael K. Hines (“claimant”), for permanent partial disability (“PPD”).
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate. The magistrate issued the
appended decision, including findings of fact and conclusions of law. The magistrate
determined the commission correctly applied R.C. 4123.57 in determining claimant is
No. 23AP-332 2
entitled to PPD compensation. Thus, the magistrate recommends this court deny
employer’s petition for a writ of mandamus.
{¶ 3} No party has filed objections to the magistrate’s decision. “If no timely
objections are filed, the court may adopt a magistrate’s decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate’s decision.”
Civ.R. 53(D)(4)(c). The case is now before this court for review.
{¶ 4} Upon review, we find no error of law or other defect on the face of the
magistrate’s decision. Therefore, we adopt the magistrate’s decision as our own, including
findings of fact and conclusions of law, and we deny employer’s petition for a writ of
mandamus.
Writ of mandamus denied.
BEATTY BLUNT and LELAND, JJ., concur.
No. 23AP-332 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. City of Cincinnati, :
Relator, :
v. No. 23AP-332
:
Industrial Commission of Ohio et al., (REGULAR CALENDAR)
:
Respondents.
:
MAGISTRATE’S DECISION
Rendered on August 13, 2024
Dinsmore & Shohl LLP, Brian P. Perry, and Anthony V.
Jagoditz, for relator.
Dave Yost, Attorney General, and John R. Smart, for
respondent Industrial Commission of Ohio.
Fox & Fox Co., L.P.A., Karen P. Mitchell, and Stephanie D.
Horn, for respondent Michael K. Hines.
____
IN MANDAMUS
{¶ 5} Relator, City of Cincinnati (“employer”), has filed this original action
requesting that this court issue a writ of mandamus ordering respondent, Industrial
Commission of Ohio (“commission”), to reinstate the October 25, 2022, tentative order
and deny the application for permanent partial disability (“PPD”) filed by respondent,
Michael K. Hines (“claimant”).
No. 23AP-332 4
Findings of Fact:
{¶ 6} 1. On December 3, 2020, claimant was diagnosed with Stage IV prostate
cancer. Claimant had worked for the employer as a firefighter from 1984 through
December 19, 2014.
{¶ 7} 2. On September 3, 2021, claimant filed an application for workers’
compensation benefits via both an FROI-1 and an Ohio Bureau of Workers’ Compensation
(“BWC”) Form C-265, Presumption of Causation for Firefighter Cancer.
{¶ 8} 3. In a November 23, 2021, report, Rafid Kakel, M.D., found the following,
in pertinent part: (1) there is insufficient evidence to support that the alleged exposures
resulted in the development of claimant’s stage IV prostate cancer; (2) prostate cancer has
no definite occupational risk factors; (3) the most important risk factor for prostate cancer
is age over 50, and claimant is 62 years old; (4) claimant is also at increased risk for the
development of prostate cancer as a result of his smoking history; (5) claimant occasionally
uses smokeless tobacco and smoked tobacco for about 20 years, which would increase the
risk for the development of cancer, including prostate cancer; and (6) claimant would have
been exposed to group 1 and/or 2a carcinogens during his work as a firefighter.
{¶ 9} 4. In a January 31, 2022, report of Barbara Cochran, M.D., Dr. Cochran
found the following: (1) Dr. Kakel has ignored all the literature of the marked risk for
prostate cancer in firefighters, and there is no literature that cites smokeless tobacco as a
risk factor for prostate cancer; (2) Dr. Kakel’s report does not evaluate the effect of the
group 1 and 2a carcinogens or the significant peer reviewed medical literature for risk of
prostatic cancer in firefighters and cannot be relied upon to rebut the presumption; (3) a
history of smoking some 20 years prior to development of prostate cancer cannot be
considered an extremely high risk and cannot be a significant factor in the cause of
progression of cancer; and (4) claimant’s advanced prostatic cancer was caused by his
exposures to the group 1 and 2a carcinogens in his essential job functions as a firefighter.
{¶ 10} 5. In a March 4, 2022, addendum report, Dr. Kakel indicated the following
additional findings: (1) overall, the medical literature regarding firefighters and prostate
cancer is inconclusive; (2) it has been opined that increased general preventative medical
care and additional screenings for firefighters may have led to more findings of prostate
No. 23AP-332 5
cancer; and (3) the additional medical information submitted does not alter Dr. Kakel’s
previously expressed opinions.
{¶ 11} 6. The employer, a self-insuring employer, rejected claimant’s claim.
However, in a March 10, 2022, order, a district hearing officer (“DHO”) allowed the claim
for the condition of advanced prostatic cancer stage IV, finding the following: (1) the
September 2, 2021, FROI-1 is granted; (2) the claim is allowed for advanced prostatic
cancer stage IV; (3) pursuant to R.C. 4123.68(X)(1), claimant has satisfied the burden that
he has contracted advanced prostatic cancer stage IV, was assigned to at least six years of
hazardous duty as a firefighter, and was exposed to a group 1 or 2a carcinogen while
working as a firefighter, and has met the presumption; (4) Dr. Kakel's November 23, 2021,
and March 4, 2022, reports are not sufficient to rebut the presumption of cancer; and (5) in
addition to the records provided by claimant to meet the presumption, claimant also
provided the January 31, 2022, report of Dr. Cochran, which provided a comprehensive
review of claimant’s medical records, as well as scientific studies, that support her
conclusion that claimant’s exposure to the carcinogens during his career as a firefighter
caused claimant’s diagnosis. The employer appealed.
{¶ 12} 7. In an April 6, 2022, addendum report, Dr. Kakel made the following
additional findings: (1) there is insufficient evidence to support that claimant’s reported
exposure to asbestos, lead, and other carcinogens at work resulted in the development of
his prostate cancer; (2) claimant’s history of tobacco use presents an extremely high risk
for the development of prostate cancer; (3) Dr. Kakel’s previously expressed opinions
remain unchanged, and claimant’s prostate cancer is not supported as work related.
{¶ 13} 8. On April 21, 2022, Dr. Cochran filed a supplemental report, in which she
reviewed Dr. Kakel’s supplemental report. Dr. Cochran found the following: (1) all men
have a risk factor of prostate cancer because they are men and have a prostate gland;
(2) age is not a significant risk factor, much less a significant risk factor; (3) the 2013 article
cited by Dr. Kakel that increase in smoking is a risk factor for prostate cancer is not
supported by peer-reviewed medical literature; (4) many early articles conclude that
smoking is not a risk factor for developing prostate cancer, while more current articles
conclude that it may be a risk factor but the level of risk is not certain; (5) some articles
state that occupational risk factors play a role in development of prostate cancer; (6) some
No. 23AP-332 6
articles state that there is no increased risk of prostate cancer for individuals with past
smoking who have stopped for ten years, like claimant; (7) Dr. Kakel’s opinion that
prostate cancer is a highly significant risk factor of past smoking is not supported by the
medical literature; and (8) claimant’s prostate cancer is causally related to his exposure to
the group I and 2a carcinogens in his job functions as a firefighter, and prior smoking has
not played a role.
{¶ 14} 9. After a hearing, on June 1, 2022, a staff hearing officer (“SHO”) issued an
order, in which he vacated the DHO’s March 10, 2022, order and found the following:
(1) the claim is allowed for stage IV prostate cancer; (2) claimant contracted an
occupational disease in the course of and arising out of his employment as a firefighter
with the employer; (3) claimant testified that he used to be a tobacco smoker but has not
smoked in 20 years; (4) claimant provided sufficient evidence to satisfy the requirements
of R.C 4123.68(X); (5) claimant is entitled to the presumption that his stage IV prostate
cancer was caused by his work activities; (6) the employer did not contest at the hearing
that claimant was entitled to this statutory presumption; (7) the employer has presented
sufficient evidence under R.C. 4123.68(X)(2) to rebut claimant’s statutory presumption
via Dr. Kakel’s April 6, 2022, report that claimant’s prior history of tobacco usage
presented claimant with an extremely high risk for the development of prostate cancer; (8)
however, claimant satisfied his burden of proving by a preponderance of the evidence that
he sustained an occupational disease in the course of and arising out of his employment
with the employer, relying upon the January 31, 2022, and April 22, 2022, reports of Dr.
Cochran; and (9) therefore, claimant contracted an occupational disease in the course of
and arising out of his employment as a firefighter, and the claim is allowed for stage IV
prostate cancer. The employer appealed, but the commission refused further appeal in a
June 23, 2022, order.
{¶ 15} 10. On October 20, 2022, claimant filed a C-92 application for determination
or increase of percentage of permanent partial disability, requesting a PPD award for the
allowed condition.
{¶ 16} 11. In an October 25, 2022, BWC tentative order, the BWC dismissed the
application, finding that the C-92 application cannot be processed per S.B. 27. Claimant
appealed.
No. 23AP-332 7
{¶ 17} 12. In a January 12, 2023, order, the DHO vacated the BWC’s tentative order,
finding the following: (1) R.C. 4123.68(X)(4) provides that a claim allowed under the
firefighters’ presumption is not eligible for a PPD award; (2) in the June 1, 2022, SHO
order, the SHO found that the employer successfully rebutted the presumption set forth in
R.C. 4123.68(X) via evidence of claimant’s prior history of tobacco products; (3) the SHO
then allowed the claim on the basis that claimant had satisfied his burden of proving by a
preponderance of the evidence that he sustained an occupational disease in the course of
and arising out of his employment; and (4) thus, the claim was not allowed under the
firefighters’ presumption in R.C. 4123.68(X), and there is no bar on the receipt of PPD
compensation. The employer appealed.
{¶ 18} 13. In a March 22, 2023, order, the SHO returned the claim file to the BWC
to process the C-92, finding the following: (1) this claim is not a claim allowed under
R.C. 4123.68(X); (2) the claim is allowed by the June 1, 2022, SHO order, in which the
SHO found that claimant initially filed the claim under R.C. 4123.68(X), but the employer
rebutted the presumption created by R.C. 4123.68(X); (3) the SHO found that because
claimant contracted an occupational disease due to his employment, pursuant to the
general provisions in R.C. 4123.68, and not the specific portion of R.C. 4123.68(X),
claimant was eligible to apply for PPD compensation under R.C. 4123.57.
{¶ 19} 14. On April 3, 2023, the employer filed a request for reconsideration, which
the commission denied on May 11, 2023.
{¶ 20} 15. On June 2, 2023, the employer filed the instant mandamus action,
requesting that this court order the commission to reinstate the October 25, 2022, BWC
tentative order and deny claimant’s application for PPD.
Conclusions of Law and Discussion:
{¶ 21} The magistrate recommends that this court deny the employer’s request for
a petition for writ of mandamus.
{¶ 22} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of the
law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
No. 23AP-332 8
{¶ 23} 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 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 fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 24} Pursuant to R.C. 4123.52, “[t]he jurisdiction of the industrial commission
and the authority of the administrator of workers’ compensation 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.”
R.C. 4123.52(A) contains a clear and broad grant of continuing jurisdiction to the
commission. State ex rel. Neitzelt v. Indus. Comm., 160 Ohio St.3d 175, 2020-Ohio-1453,
¶ 15. However, that jurisdiction is conditioned on specific criteria: (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, 459 (1998).
{¶ 25} A clear mistake of law exists when the hearing officer applies the wrong law
to the facts in the administrative record. State ex rel. Waste Mgt. of Ohio, Inc. v. Indus.
Comm., 10th Dist. No. 19AP-453, 2021-Ohio-2478, ¶ 45, citing State ex rel.
McNea v. Indus. Comm., 131 Ohio St.3d 408, 2012-Ohio-1296, ¶ 10.
{¶ 26} Pursuant to R.C. 4123.68, “[e]very employee who is disabled because of the
contraction of an occupational disease” is entitled to participate in the Ohio workers’
compensation system. R.C. 4123.68 lists a number of diseases that have been designated
as “scheduled” occupational diseases. If an injured worker’s condition is not one of the
occupational diseases specified in R.C. 4123.68, the injured worker bears the burden of
demonstrating that his or her condition qualifies as an occupational disease, entitling the
worker to participate in the Ohio workers’ compensation system. To establish the right to
participate in the worker’s compensation fund a claimant must show by a preponderance
of the evidence both that (1) the injury arose out of and in the course of employment and
(2) that a proximate causal relationship existed between the injury and the harm or
No. 23AP-332 9
disability. White Motor Corp. v. Moore, 48 Ohio St.2d 156 (1976), paragraph one of the
syllabus.
{¶ 27} R.C. 4123.57 provides, in pertinent part, the following:
Partial disability compensation shall be paid as follows.
Except as provided in this section, not earlier than twenty-six
weeks after the date of termination of the latest period of
payments under section 4123.56 of the Revised Code, or not
earlier than twenty-six weeks after the date of the injury or
contraction of an occupational disease in the absence of
payments under section 4123.56 of the Revised Code, the
employee may file an application with the bureau of workers’
compensation for the determination of the percentage of the
employee’s permanent partial disability resulting from an
injury or occupational disease.
R.C. 4123.68(X) provides:
(1) Cancer contracted by a firefighter: Cancer contracted by a
firefighter who has been assigned to at least six years of
hazardous duty as a firefighter constitutes a presumption
that the cancer was contracted in the course of and arising
out of the firefighter’s employment if the firefighter was
exposed to an agent classified by the international agency for
research on cancer or its successor organization as a group 1
or 2A carcinogen.
(2) The presumption described in division (X)(1) of this
section is rebuttable in any of the following situations:
(a) There is evidence that the firefighter’s exposure, outside
the scope of the firefighter’s official duties, to cigarettes,
tobacco products, or other conditions presenting an
extremely high risk for the development of the cancer alleged,
was probably a significant factor in the cause or progression
of the cancer.
(b) There is evidence that shows, by a preponderance of
competent scientific evidence, that exposure to the type of
carcinogen alleged did not or could not have caused the
cancer being alleged.
(c) There is evidence that the firefighter was not exposed to
an agent classified by the international agency for research
on cancer as a group 1 or 2A carcinogen.
No. 23AP-332 10
(d) There is evidence that the firefighter incurred the type of
cancer alleged before becoming a member of the fire
department.
(e) The firefighter is seventy years of age or older.
(3) The presumption described in division (X)(1) of this
section does not apply if it has been more than fifteen years
since the firefighter was last assigned to hazardous duty as a
firefighter.
(4) Compensation for cancer contracted by a firefighter in the
course of hazardous duty under division (X) of this section is
payable only in the event of temporary total disability,
working wage loss, permanent total disability, or death, in
accordance with division (A) or (B)(1) of section 4123.56 and
sections 4123.58 and 4123.59 of the Revised Code.
(5) As used in division (X) of this section, “hazardous duty”
has the same meaning as in 5 C.F.R. 550.902, as amended.
{¶ 28} The primary goal of statutory interpretation is to determine and uphold “the
General Assembly’s intent in enacting the statute.” Knollman-Wade Holdings,
LLC v. Platinum Ridge Properties, LLC, 10th Dist. No. 14AP-595, 2015-Ohio-1619, ¶ 14.
“In determining legislative intent, we must first look to the plain language of the statute.”
Id. As a general rule, the words and phrases of a statute will be read in context and
construed according to the rules of grammar and common usage. R.C. 1.42. See In re
Acubens, LLC, 10th Dist. No. 17AP-870, 2018-Ohio-2607, ¶ 14, citing State ex rel. Rose v.
Lorain Cty. Bd. of Elections, 90 Ohio St.3d 229, 231 (2000). Where the language of a
statute is plain and conveys a clear and definite meaning, there is no need for statutory
interpretation. State v. Banks, 10th Dist. No. 11AP-69, 2011-Ohio-4252, ¶ 13. If the statute
is clear and unambiguous, the court must apply it as written. State v. Ashcraft, 171 Ohio
St.3d 747, 2022-Ohio-4611, ¶ 7. We may look beyond the plain statutory language only
when a definitive meaning remains elusive despite a thorough, objective examination of
the language. Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-2440,
¶ 23, citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, ¶ 11. “If strict
construction of a statute would result in ‘unreasonable or absurd consequences,’ a
construing court may reject the strict construction doctrine, because courts must presume
No. 23AP-332 11
that the legislature enacted a statute for a ‘just and reasonable result.’ ” State ex rel. Clay v.
Cuyahoga Cty. Med. Examiner’s Office, 152 Ohio St.3d 163, 2017-Ohio-8714, ¶ 23.
{¶ 29} In the present case, the employer argues that the commission failed to
properly exercise its continuing jurisdiction and vacate the March 22, 2023, SHO’s order
due to a clear mistake of law in allowing the BWC to process claimant’s application for PPD
benefits. The employer contends that the plain language of R.C. 4123.68(X)(4) excludes
PPD benefits from all firefighter cancer claims─not only those claims allowed via the
presumption. The employer points out that the title of R.C. 4123.68(X) is “Cancer
contracted by a firefighter,” which demonstrates the legislature’s intent that its provisions
apply to all cancers contracted by a firefighter, not only those allowed via the presumption.
The employer asserts that had the legislature intended firefighter claims to be allowed by
a showing of the preponderance of the evidence after the presumption was rebutted, then
it would have expressed this allowance within the language of the statute. The employer
further argues that the fact that PPD is not a form of compensation enumerated within
R.C. 4123.68(X)(4) is clear evidence that it was not the legislature’s intent to allow this
form of compensation. The employer compares the exclusion of PPD in R.C. 4123.68(X)(4)
to the exclusion of PPD in R.C. 4123.68(W), which provides that “[c]ompensation on
account of cardiovascular, pulmonary, or respiratory diseases of firefighters and police
officers is payable only in the event of [TTD, PTD,] or death,” and likewise contains a
presumption of causation when certain factors are met, which may be refuted by
affirmative evidence. That these two consecutive provisions contain the same exclusionary
language, asserts the employer, demonstrates that it was the legislature’s clear intent not
to allow PPD in these two classes of occupational diseases. The employer points out the
following absurd result of the commission’s decision: a nonsmoker would not be eligible
for PPD benefits because the employer would not be able to use smoking to rebut the
statutory presumption, and the claim would be allowed, while a smoker would be eligible
for PPD benefits because the employer would be able to use smoking to rebut the statutory
presumption.
{¶ 30} The magistrate finds the employer’s position not well taken. Initially, as the
commission points out, the employer’s focus on R.C. 4123.68(X) is misplaced. In the
June 1, 2022, order, the SHO found that claimant met his burden of establishing─by a
No. 23AP-332 12
preponderance of the evidence under the general provisions of R.C. 4123.68 rather than
the presumption-of-causation provision under R.C. 4123.68(X)─that his injury was
caused by his employment. Because claimant did not pursue further appellate remedies
after the commission’s June 23, 2022, refusal order, the determination that the general
provisions in R.C. 4123.68 applied rather than the presumption-of-causation provision in
R.C. 4123.68(X) was final. The SHO then based his March 22, 2023, order on the
June 1, 2022, order to find that claimant was eligible to apply for PPD compensation under
R.C. 4123.57.
{¶ 31} The magistrate finds no mistake of law in the SHO’s March 22, 2023, order.
As explained above, the only determination before the SHO was whether claimant was
properly granted PPD compensation under R.C. 4123.57. The employer failed to
demonstrate a clear mistake of law in the SHO’s determination that PPD compensation
was appropriate. Although the employer attempts to draw a comparison between
R.C. 4123.68(W) and 4123.68(X) to claim that PPD compensation is excluded under both
provisions─for all cancers in firefighters under R.C. 4123.68(X) and for cardiovascular,
pulmonary, or respiratory diseases of firefighters under R.C. 4123.68(W)─this belated
argument relates to the June 1, 2022, order that found claimant eligible for PPD
compensation pursuant to the preponderance-of-the-evidence standard under the general
provisions of R.C. 4123.68 and not the presumption under R.C. 4123.68(X). As stated, the
provisions in R.C. 4123.68(X) are not applicable to the determination of PPD benefits here,
and this argument is without merit. In the end analysis, the SHO was tasked with
determining whether claimant was entitled to PPD compensation under R.C. 4123.57, and
the employer has set forth no valid argument as to why claimant does not qualify given
that he proved that his prostate cancer was caused by his employment by a preponderance
of the evidence.
{¶ 32} Nevertheless, the magistrate notes that, although the employer asserts that
R.C. 4123.68(X)(4) excludes PPD benefits from all firefighter cancer claims─not only
those claims allowed via the presumption─R.C. 4123.68(X)(4) specifically indicates that
its language limiting the types of compensation available applies only to “[c]ompensation
for cancer contracted by a firefighter * * * under division (X) of this section.” Thus, the
limitation of compensation to only that for temporary total disability, working wage loss,
No. 23AP-332 13
permanent total disability, or death, and the exclusion of compensation for PPD, applies
only to cancer claims allowed using the presumption afforded by division (X) not cancer
claims allowed using the general provisions in R.C. 4123.68.
{¶ 33} For these reasons, the commission correctly applied R.C. 4123.57 and
committed no clear mistake of law, and the employer’s arguments are without merit.
{¶ 34} Accordingly, it is the magistrate’s recommendation that this court should
deny the employer’s petition for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
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.