The opinion
[This opinion has been published in Ohio Official Reports at 175 Ohio St.3d 186.]
THE STATE EX REL . OTTINGER, APPELLANT, v. B&B WRECKING &
EXCAVATING, INC.; INDUSTRIAL COMMISSION OF OHIO, APPELLEE.
[Cite as State ex rel. Ottinger v. B&B Wrecking & Excavating Inc.,
2024-Ohio-1656.]
Workers’ compensation—R.C. 4123.52—R.C. 4123.57(B)—Industrial Commission
did not abuse its discretion by exercising its continuing jurisdiction to
reverse order of Bureau of Workers’ Compensation that awarded injured
worker scheduled-loss compensation under R.C. 4123.57(B), because
award was based on mistake of fact, which commission identified when
exercising its continuing jurisdiction—Documentation from independent
medical examination conducted after bureau issued its erroneous award
was properly considered by commission as some evidence supporting its
denial of injured worker’s motion for scheduled-loss compensation—Court
of appeals’ judgment affirmed.
(No. 2023-0763—Submitted March 26, 2024—Decided May 2, 2024.)
APPEAL from the Court of Appeals for Franklin County,
No. 19AP-745, 2023-Ohio-1758.
__________________
Per Curiam.
{¶ 1} The Bureau of Workers’ Compensation awarded appellant, Billy J.
Ottinger, scheduled-loss compensation under R.C. 4123.57(B) for the loss of use
of both legs (“loss-of-use compensation”). Appellee, Industrial Commission of
Ohio, exercised its continuing jurisdiction and vacated the bureau’s decision; it then
denied Ottinger’s request for loss-of-use compensation. Ottinger sought a writ of
mandamus in the Tenth District Court of Appeals directing the commission to
reinstate the bureau’s decision. The court of appeals denied the request for a writ,
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and Ottinger appealed to this court as of right. Because the commission’s order is
supported by some evidence, we affirm the Tenth District’s judgment.
I. BACKGROUND
{¶ 2} Ottinger was working for B&B Wrecking & Excavating, Inc., on
June 12, 2018, when he fell from a roof and landed on his legs. At the emergency
department, Ottinger presented with some sensation in his lower extremities, but he
was unable to move his legs. He regained some sensation following emergency
spinal surgery but continued to experience significant weakness and immobility in
his legs. The bureau allowed Ottinger’s workers’ compensation claim for, among
other conditions, “incomplete spinal cord injury” and “paraplegia, incomplete.”
{¶ 3} According to medical literature included in the record, “having an
incomplete [spinal-cord injury] does not imply the ability to walk or even bear
weight on the lower extremities,” Oleson, Osteoporosis Rehabilitation, Chapter 9:
Osteoporosis in Spinal Cord Medicine, 137 (2017). The ASIA (American Spinal
Injury Association) Impairment Scale (“AIS”) sets forth five impairment levels
following a spinal-cord injury, denoted “A” through “E,” with level “A”
representing a complete spinal-cord injury from which no sensory or motor function
is preserved and level “E” representing the patient’s return to normal sensory and
motor function. Id. at 134-135.1
{¶ 4} Emergency-department physicians assessed Ottinger’s spinal-cord
injury as “L1 ASIA B,” and when he began physical therapy postoperatively, he
was unable to ambulate. Within one month, Ottinger’s spinal-cord injury was
assessed as “L1 AIS C,” and he was able to ambulate up to 35 feet using leg braces
and a wheeled walker and with the assistance of two people. By December 2018,
1. See also ASIA, International Standards for Neurological Classification of SCI (ISNCSCI)
Worksheet, https://asia-spinalinjury.org/wp-content/uploads/2019/04/ASIA-ISCOS-
IntlWorksheet_2019.pdf#page=1 (accessed April 8, 2024) [https://perma.cc/332B-ARYN].
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he could stand briefly with leg braces and ambulate with a walker for 200 feet, but
both legs would buckle, drag, and catch on the ground.
{¶ 5} The following month, in January 2019, Ottinger filed a motion for
scheduled-loss compensation under R.C. 4123.57(B) for the loss of use of both legs.
He asked the bureau to “please consider * * * the medical [documentation] on file
and the fact that his claim is allowed for ‘paraplegia.’ ” A bureau nurse reviewed
Ottinger’s loss-of-use claim and entered the following note in the bureau’s file on
January 31, 2019:
RN reviewed [Ottinger’s] C86 request for compensation for
the functional loss of use of both of his lower extremities. The
medical evidence and exam findings from Lifeforce, Akron City
Hospital on 06/12/2018, and the allowed condition in the claim,
Paraplegia—defined as paralysis of the legs and lower body—
supports the request for compensation for the functional loss of use
of both his lower extremities.
{¶ 6} On February 4, 2019, the bureau granted Ottinger’s motion for loss-
of-use compensation. In its decision, the bureau listed all previously allowed
medical conditions in the claim, including “paraplegia, incomplete.” Based on
Ottinger’s motion, the emergency-department report from the date of injury, and
“medical documentation in [the] claim,” the bureau found that Ottinger had
sustained the loss of both legs due to loss of use. The bureau modified its decision
two days later, on February 6, by changing only the date of payment for the loss-
of-use award for the right leg. That decision was not appealed.
{¶ 7} Then, on March 5, 2019, Ottinger requested an award of permanent-
total-disability (“PTD”) compensation under R.C. 4123.58(C)(1), which provides
that a claimant “shall be compensated” for PTD when the claimant has lost the use
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of both legs. Based on the loss-of-use award issued by the bureau and “medical
documentation” from the date of injury, a staff hearing officer (“SHO”) for the
commission issued a tentative order on March 15, awarding Ottinger PTD
compensation for “the loss of use of both legs resulting from the allowed condition
of incomplete paraplegia.” The bureau objected to the SHO’s order, citing
“insufficient medical documentation that the injured worker’s request for statutory
[PTD compensation] under R.C. 4123.58(C) rises to the level of permanent and
total loss of use.”
{¶ 8} On March 21, 2019, the bureau filed a motion requesting that the
commission exercise its continuing jurisdiction “based on a clear mistake of fact,
law, and clerical error” and that it vacate the bureau’s February 2019 decision
awarding Ottinger loss-of-use compensation. The bureau explained:
The order was based on [Ottinger’s] motion dated 01/22/2019
requesting loss of use of the right and left leg[s] based on the
allowance of paraplegia. The claim is only allowed for paraplegia,
incomplete and not paraplegia. The order was based on a nurse
review on 01/31/2019 that found loss of use based on the allowance
of paraplegia and the medical records on the date of injury. After
the date of injury, [Ottinger] had emergency surgery and extensive
physical therapy. He has not been found to have reached maximum
medical improvement. There are physical therapy records from
January 10, 2019 that indicate that [Ottinger] has regained the ability
to walk. The [bureau’s] order should be vacated and the request for
the loss of use award [for] the right and left leg[s] should be denied
due to lack of medical evidence to support loss of use.
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January Term, 2024
{¶ 9} On April 27, 2019, following a hearing on the motion to exercise
continuing jurisdiction, a district hearing officer (“DHO”) found that the bureau
had properly invoked the commission’s continuing jurisdiction “based upon clear
mistake of fact, mistake of law and error by [an] inferior tribunal.” The DHO
vacated the bureau’s February 2019 decision and denied Ottinger’s motion for loss-
of-use compensation. The DHO found that the bureau’s mistake of fact was basing
its decision on an incorrect diagnosis of paraplegia when there was evidence that
Ottinger could stand and ambulate independently with a wheeled walker. The DHO
found that the bureau’s mistake of law was “that the award of a scheduled loss of
use of the right and left legs is inappropriate when an Injured Worker demonstrates
some ability or function of [the] lower extremities.” Ottinger appealed this order
administratively.2
{¶ 10} At the commission’s request, an independent medical examination
(“IME”) was conducted on July 8, 2019, by Michael Harris, M.D., who opined that
Ottinger’s “allowed injuries have not resulted in a total, permanent loss of use of
the left and right legs to such a degree that the affected body parts are useless for
all practical purposes.” (Underlining sic.)
{¶ 11} On August 6, 2019, after a hearing on Ottinger’s administrative
appeal, another SHO affirmed the DHO’s order vacating the bureau’s February
2019 order and denying Ottinger’s motion for loss-of-use compensation. The SHO
made independent factual findings, including that “as a matter of fact and law,” the
bureau’s decision was based on a condition—paraplegia—that “was not, and is not,
2. In his merit brief filed in this court, Ottinger challenges the mistake of law as found by the DHO,
arguing that caselaw supports an award for loss-of-use compensation when the injured worker
retains some level of residual function. See, e.g., State ex rel. Kroger Co. v. Johnson, 128 Ohio
St.3d 243, 2011-Ohio-530, 943 N.E.2d 541, ¶ 21-22. However, as noted throughout this opinion,
the mistake of law as found by the DHO was not the same mistake of law subsequently found by
the SHO on administrative appeal.
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allowed in this claim.” The commission denied Ottinger’s request for
reconsideration of the SHO’s order.
{¶ 12} Ottinger subsequently filed this mandamus action in the Tenth
District, alleging that the commission’s exercise of continuing jurisdiction was an
abuse of discretion. The court of appeals denied the request for a writ of mandamus,
concluding (1) that the commission found at least one clear mistake of fact that is
supported by some evidence and (2) that to award Ottinger loss-of-use
compensation based on that evidence was a clear mistake of law. 2023-Ohio-1758,
¶ 19-21. We review Ottinger’s appeal of the Tenth District’s judgment as of right.
II. LEGAL ANALYSIS
A. Mandamus Standard
{¶ 13} In a direct appeal of the judgment in a mandamus action that
originated in a court of appeals, we review the judgment as if the action had been
originally filed in this court. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d
141, 164, 228 N.E.2d 631 (1967).
{¶ 14} Ottinger is entitled to a writ of mandamus if he shows by clear and
convincing evidence that he has a clear legal right to the requested relief, that the
commission has a clear legal duty to provide that relief, and that he has no adequate
remedy in the ordinary course of the law. State ex rel. Zarbana Industries, Inc. v.
Indus. Comm., 166 Ohio St.3d 216, 2021-Ohio-3669, 184 N.E.3d 81, ¶ 10.
{¶ 15} R.C. 4123.512(A) provides for the right to appeal a commission’s
final order “in any injury or occupational disease case, other than a decision as to
the extent of disability.” Appellate review is limited to “decisions involving a
claimant’s right to participate or to continue to participate” in the workers’
compensation fund. Afrates v. Lorain, 63 Ohio St.3d 22, 584 N.E.2d 1175 (1992),
paragraph one of the syllabus, citing former R.C. 4123.519 (renumbered as R.C.
4123.512, effective Oct. 20, 1993, see Am.Sub.H.B. No. 107, 145 Ohio Laws, Part
II, 2990, 3153-3156). Because the commission’s decision to exercise its continuing
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jurisdiction in this case does not involve Ottinger’s right to participate in or to
continue to participate in the fund, it is not appealable under R.C. 4123.512(A) and
must be challenged by way of a mandamus action. See State ex rel. Belle Tire
Distribs., Inc. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122, 116 N.E.3d
102, ¶ 18, citing State ex rel. Saunders v. Metal Container Corp., 52 Ohio St.3d 85,
86, 556 N.E.2d 168 (1990). But see State ex rel. Carroll v. Galion Assisted Living,
Ltd., 149 Ohio St.3d 326, 2016-Ohio-8117, 75 N.E.3d 140 (because the
commission’s exercise of continuing jurisdiction prevented claimant from
participating in the workers’ compensation fund, claimant had an adequate remedy
in the ordinary course of the law by way of appeal and was therefore not entitled to
a writ of mandamus).
{¶ 16} A writ of mandamus may lie when there is a legal basis to compel
the commission to perform its duties under the law or when the commission has
abused its discretion in carrying out its duties. State ex rel. Gen. Motors Corp. v.
Indus. Comm., 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9.
“Where a commission order is adequately explained and based on some evidence,
even evidence that may be persuasively contradicted by other evidence of record,
the order will not be disturbed as manifesting an abuse of discretion.” State ex rel.
Mobley v. Indus. Comm., 78 Ohio St.3d 579, 584, 679 N.E.2d 300 (1997). We “will
not order the commission to vacate its decision if the decision is supported by some
evidence.” State ex rel. Neitzelt v. Indus. Comm., 160 Ohio St.3d 175, 2020-Ohio-
1453, 155 N.E.3d 812, ¶ 23.
B. The Commission’s Continuing Jurisdiction
{¶ 17} In his first proposition of law, Ottinger conflates our standard for
reviewing whether the commission abused its discretion with the commission’s
standard for exercising its continuing jurisdiction. Ottinger argues that the
commission abused its discretion by exercising its continuing jurisdiction to vacate
a decision of the bureau that was supported by “some evidence.” However, in
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contrast to our deferential standard of review, the commission has broad authority
to exercise continuing jurisdiction over workers’ compensation cases.
{¶ 18} Under 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.” However, this broad authority is not without limit. There must be
evidence of either “ ‘(1) new and changed circumstances, (2) fraud, (3) clear
mistake of fact, (4) clear mistake of law, or (5) error by [an] inferior tribunal.’ ”
Neitzelt at ¶ 11, quoting State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454,
459, 692 N.E.2d 188 (1998). “The commission must both identify and explain the
prerequisite on which it relies.” State ex rel. Tantarelli v. Decapua Ents., Inc., 156
Ohio St.3d 258, 2019-Ohio-517, 125 N.E.3d 850, ¶ 16, citing State ex rel. Gobich
v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, 817 N.E.2d 398, ¶ 15. It
is insufficient for the commission to cite only the possibility of an unspecified error.
State ex rel. Foster v. Indus. Comm., 85 Ohio St.3d 320, 322, 707 N.E.2d 1122
(1999), citing Nicholls at 459.
C. The Commission’s Order Vacating the Bureau’s Decision
{¶ 19} R.C. 4123.57(B) authorizes compensation to an injured worker for
the loss of enumerated body parts, including a leg, for a specified number of weeks.
For purposes of R.C. 4123.57(B), “loss” includes amputation or severance as well
as the loss of use of the affected body part that is both permanent and total, to the
same effect and extent as if the body part had been physically removed. State ex
rel. Walker v. Indus. Comm., 58 Ohio St.2d 402, 403-404, 390 N.E.2d 1190 (1979),
citing State ex rel. Gassmann v. Indus. Comm., 41 Ohio St.2d 64, 67, 322 N.E.2d
660 (1975). A claimant must demonstrate with medical evidence a total loss of use
of the body part “for all practical intents and purposes,” State ex rel. Alcoa Bldg.
Prods. v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, 810 N.E.2d 946,
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January Term, 2024
¶ 12. But it is not necessary that the injured body part be of absolutely no use for
it to have lost its use for all practical purposes. See id. at ¶ 13; see also State ex rel.
Kroger v. Johnson, 128 Ohio St.3d 243, 2011-Ohio-530, 943 N.E.2d 541, ¶ 22
(“residual use does not necessarily bar an award” for total loss of use under
R.C. 4123.57(B)).
{¶ 20} Here, the bureau initially found that Ottinger had sustained the loss
of both legs under R.C. 4123.57(B) due to loss of use. It based that decision on the
information contained in Ottinger’s motion for loss-of-use compensation, the
emergency-department report, and “medical documentation in [the] claim.” Then,
after Ottinger filed his motion for PTD compensation, the bureau argued to the
commission that there was a lack of medical evidence to support the award for loss-
of-use compensation that it had previously issued and that the order granting that
award should be vacated.
{¶ 21} The SHO determined that the bureau’s decision granting Ottinger
loss-of-use compensation constituted an error of an inferior tribunal based on a
mistake of fact and a mistake of law. The SHO found “as a matter of fact and law”
that the bureau’s decision “was based on a condition which was not, and is not,
allowed in this claim.” Specifically, the SHO found that whereas Ottinger’s claim
was allowed for “paraplegia, incomplete,” the bureau’s order granting Ottinger an
award for loss of use “was at least partially based on the incorrect assumption that
this claim is allowed for paraplegia.” (Capitalization deleted.) The SHO noted
(1) that Ottinger had incorrectly asserted in his own motion that his claim was
allowed for “paraplegia” and (2) that a nurse’s review of the case, which was
documented in the bureau’s file, had also misstated that the allowed condition in
the claim was “ ‘[p]araplegia.’ ” The SHO concluded:
Specifically, the [bureau] note dated 01/31/2019 indicates
the following: “The medical evidence and exam findings from
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Lifeforce, Akron City Hospital on 06/12/2018, and the allowed
condition in the claim, Paraplegia—defined as paralysis of the legs
and lower body—supports the request for compensation for the
functional loss of use of both his lower extremities.”
As previously indicated, relative to the medical term
paraplegia, this claim is allowed for “paraplegia, incomplete,” and
not “paraplegia,” with the latter diagnosis leading to the conclusion
that [Ottinger] has complete paralysis.
Based on these mistakes of law and fact, the Administrator’s
order reflects an error of an inferior tribunal.
{¶ 22} We now turn to whether there is some evidence to support the SHO’s
finding that the bureau’s decision contained a clear mistake of fact or law.
D. Clear Mistake of Fact
{¶ 23} A clear mistake of fact may exist when a clerical error has occurred,
see, e.g., State ex rel. Weimer v. Indus. Comm., 62 Ohio St.2d 159, 160, 404 N.E.2d
149 (1980), or when a factual finding is not supported by any evidence in the record,
see, e.g., State ex rel. Waste Mgt. of Ohio, Inc. v. Indus. Comm., 171 Ohio St.3d 68,
2022-Ohio-4581, 215 N.E.3d 512, ¶ 17-19. A disagreement regarding evidentiary
interpretation, on the other hand, is not a proper basis for invoking the
commission’s continuing jurisdiction. See State ex rel. Royal v. Indus. Comm., 95
Ohio St.3d 97, 100, 766 N.E.2d 135 (2002).
{¶ 24} Ottinger argues in his second proposition of law that the commission
exercised continuing jurisdiction without adequate justification. He contends that
the SHO identified only the possibility of error and that the SHO mischaracterized
a disagreement of evidentiary interpretation as a mistake of fact.
{¶ 25} The SHO specified that the bureau erred by basing the award for
loss-of-use compensation, at least in part, on documents that incorrectly identified
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Ottinger’s diagnosis as “paraplegia.” The SHO explained that this led to the
incorrect assumption that Ottinger’s claim was allowed for “paraplegia,” which led
to the incorrect conclusion that Ottinger was completely paralyzed, rather than
having some use of his legs, even though the medical documentation in the claim,
beginning with the emergency-department report from the date of injury, includes
references to and is consistent with the allowed condition of “paraplegia,
incomplete.” Emergency-department physicians assessed Ottinger’s injury on the
ASIA Impairment Scale as “L1 ASIA B.” In later physical-therapy notes,
Ottinger’s injury was documented as “L1 AIS C.” Postsurgical notes explain that
Ottinger had regained some sensation in his legs as well as limited mobility with
the assistance of leg braces and wheeled walkers. Moreover, it is undisputed that
Ottinger was not completely paralyzed as a result of his injury and that when he
moved for an award of loss-of-use compensation, he was to some extent
ambulatory.
{¶ 26} The inconsistency between the medical documentation, which
showed that Ottinger was not completely paralyzed, and the bureau nurse’s
incorrect description of his allowed condition as “paraplegia” is some evidence that
supports the SHO’s determination that the bureau’s order awarding Ottinger loss-
of-use compensation was based on a mistake of fact. Contrary to Ottinger’s
position, the SHO did not identify an evidentiary disagreement but instead
identified a clear mistake of fact in the bureau nurse’s review notes that was used
to support the bureau’s February 2019 decision to award Ottinger loss-of-use
compensation. We therefore conclude that the commission did not abuse its
discretion by exercising its continuing jurisdiction to vacate the bureau’s order
awarding Ottinger loss-of-use compensation based on a clear mistake of fact. See
Neitzelt, 160 Ohio St.3d 175, 2020-Ohio-1453, 155 N.E.3d 812, at ¶ 23 (we “will
not order the commission to vacate its decision if the decision is supported by some
evidence”).
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E. Clear Mistake of Law
{¶ 27} A clear mistake of law exists when it is “of such character that
remedial action would clearly follow.” State ex rel. Rodriguez v. Indus. Comm., 67
Ohio St.3d 210, 213, 616 N.E.2d 929 (1993), citing State ex rel. B & C Machine
Co. v. Indus. Comm., 65 Ohio St.3d 538, 542, 605 N.E.2d 372 (1992) (holding that
a clear mistake of law exists when it is clear this court would issue a writ of
mandamus).
{¶ 28} Ottinger argues that the commission failed to identify a clear mistake
of law and that any subsequent explanation conjectured by the courts on appellate
review does not cure the commission’s failure to adequately explain its justification
for exercising continuing jurisdiction.
{¶ 29} As recognized by the Tenth District, “[a] single mistake of fact or
mistake of law is all that is needed to justify the commission’s exercise of
continuing jurisdiction.” 2023-Ohio-1758 at ¶ 19. Therefore, we need not address
the remaining arguments under Ottinger’s second proposition of law.
F. The Commission’s Decision to Deny Loss-of-Use Compensation
{¶ 30} After the commission properly exercises its continuing jurisdiction
and vacates an order, the commission is required to reexamine all facets of the
underlying request for compensation, State ex rel. Sheppard v. Indus. Comm., 139
Ohio St.3d 223, 2014-Ohio-1904, 11 N.E.3d 231, ¶ 24, and is then free to reach a
different conclusion regarding any issues of law or fact, Waste Mgt., 171 Ohio St.3d
68, 2022-Ohio-4581, 215 N.E.3d 512, at ¶ 21. See also R.C. 4123.52(A) (“the
commission may make such modification or change with respect to former findings
or orders with respect thereto, as, in its opinion is justified”).
{¶ 31} As stated above, to qualify for loss-of-use compensation under
R.C. 4123.57(B), a claimant must demonstrate with medical evidence a total loss
of use of a body part for all practical purposes. Alcoa Bldg. Prods., 102 Ohio St.3d
341, 2004-Ohio-3166, 810 N.E.2d 946, at ¶ 12-14. A loss of use must be both
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permanent and total, to the same effect and extent as if the body part had been
physically removed. Walker, 58 Ohio St.2d at 403-404, 390 N.E.2d 1190.
{¶ 32} In Ottinger’s final proposition of law, he argues that the commission
abused its discretion by reexamining his motion for loss-of-use compensation and
by finding that he had failed to establish a loss of use of both legs under R.C.
4123.57(B). This argument fails, however, because the commission supported its
finding with the following evidence:
The physical therapy notes do document progress relative to
[Ottinger’s] use and function of his lower extremities. At hearing,
[Ottinger] testifie[d] that he is able to use both feet/legs in order to
drive a car.[3] Although he must use a walker during his daily
activities, and his functioning is limited, he has not established a
total loss of use.
The Hearing Officer also relies on the report of Michael
Harris, M.D., who conclude[d] that the allowed injuries have not
resulted in a total, permanent loss of use of the left and right legs to
such a degree that the affected body parts are useless for all practical
purposes. Dr. Harris note[d] that [Ottinger] is ambulatory as he
ambulates independently with a walker for short distances. Dr.
Harris note[d] that [Ottinger] does have an incomplete spinal cord
injury and remains quite weak, but he does not have a complete loss
of use of his left and right lower extremities.
Accordingly, the commission’s denial of Ottinger’s motion for loss-of-use
compensation is supported by some evidence.
3. Because the transcript of this hearing is not in the record on appeal, we cannot verify Ottinger’s
testimony in this regard.
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{¶ 33} Ottinger additionally argues that the commission erred in denying
his motion for loss-of-use compensation based on evidence that was not in the
record—namely, Dr. Harris’s IME report—when the bureau initially granted him
such an award. However, the existence of a clear mistake of fact allowed the
commission to reopen the case, vacate the bureau’s order, and reconsider all issues
de novo. See Waste Mgt., 171 Ohio St.3d 68, 2022-Ohio-4581, 215 N.E.3d 512, at
¶ 21, citing Sheppard, 139 Ohio St.3d 223, 2014-Ohio-1904, 11 N.E.3d 231, at
¶ 24. “The commission may, at any point in the processing of an application for
benefits, require the injured worker to submit to a physical examination or may
refer a claim for investigation.” Ohio Adm.Code 4121-3-09(A)(5). “Since the
commission may refer a claimant for examination at any time, the commission may
consider the report generated therefrom, regardless of when it is obtained.” State
ex rel. Cordray v. Indus. Comm., 54 Ohio St.3d 99, 101, 561 N.E.2d 917 (1990)
(applying former Ohio Adm.Code 4121-3-09(B)(3), which set forth the same
proposition as Ohio Adm.Code 4121-3-09(A)(5)). It was therefore within the
commission’s discretion to consider Dr. Harris’s report, even though it was not in
the record when the bureau issued its initial decision. See id.
{¶ 34} Because the SHO’s findings are supported by Dr. Harris’s report, we
conclude that the commission did not abuse its discretion by denying Ottinger’s
motion for loss-of-use compensation. See Mobley, 78 Ohio St.3d at 584, 679
N.E.2d 300 (an order based on some evidence will not be disturbed as manifesting
an abuse of discretion).
III. CONCLUSION
{¶ 35} For the foregoing reasons, we conclude that Ottinger has failed to
establish a clear legal right to the relief requested. We therefore affirm the Tenth
District Court of Appeals’ judgment denying Ottinger’s request for a writ of
mandamus.
Judgment affirmed.
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KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,
and DETERS, JJ., concur.
_________________
Craigg E. Gould, for appellant.
Dave Yost, Attorney General, and Andrew J. Alatis, Assistant Attorney
General, for appellee.
_________________
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