State ex rel. Prinkey v. Emerine's Towing, Inc.

[Cite as State ex rel. Prinkey v. Emerine's Towing, Inc., 2024-Ohio-1137.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Paul Prinkey, Jr., :

Relator, : No. 22AP-264

v. : (REGULAR CALENDAR)

Emerine’s Towing, Inc. et al., :

Respondents. :

D E C I S I O N

Rendered on March 26, 2024

On brief: Schiavoni, Schiavoni, Bush & Muldowney, and

Shawn R. Muldowney, for relator.

On brief: Dave Yost, Attorney General, and Denise A.

Corea, for respondent Industrial Commission of Ohio.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE’S DECISION

LUPER SCHUSTER, J.

{¶ 1} Relator, Paul Prinkey, Jr., initiated this original action requesting this court

issue a writ of mandamus ordering respondent Industrial Commission of Ohio

(“commission”) to amend its order finding it had no jurisdiction to address Prinkey’s

second application for permanent total disability (“PTD”) compensation under R.C.

4123.58(G), and to issue a new order finding Prinkey is entitled to PTD compensation.

{¶ 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 failed to explain the basis for its determination that Prinkey

did not demonstrate new and changed circumstances. Thus, the magistrate recommends

No. 22AP-264 2

this court issue a limited writ of mandamus returning the matter to the commission to

issue a new order: (1) specifically stating the evidence the commission relied upon in

reaching its decision, and (2) briefly explaining the reasoning for the commission’s

decision.

{¶ 3} The commission filed objections to the magistrate’s decision. Therefore, we

must independently review the decision to ascertain whether “the magistrate has properly

determined the factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d). The

commission does not challenge the magistrate’s recitation of the pertinent facts; however,

the commission objects to the magistrate’s conclusion that Prinkey is entitled to a limited

writ of mandamus. More specifically, the commission sets forth the following objections:

[1.] The magistrate erred in finding that the commission

applied R.C. 4123.58(G) retroactively.

[2.] The magistrate erred in finding that the commission did

not adequately cite to the evidence relied upon or adequately

explain the reasoning for its decision.

{¶ 4} A brief summary of the factual circumstances is pertinent to our discussion.

As set forth more fully in the magistrate’s decision, Prinkey sustained a work-related injury

in January 2015, and his workers’ compensation claim was allowed for the conditions of:

(1) myocardial infarction and substantial aggravation of pre-existing coronary artery

disease (“allowed cardiac condition”), and (2) major depressive disorder, single episode

(“allowed psychological condition”). Prinkey filed his first application for PTD

compensation on February 4, 2019, relying on the reports of Dr. Randall J. Hartwig and

Dr. Lynn Ross DiMarzio, both of whom opined Prinkey was permanently and totally

disabled from any sustained, remunerative employment. In denying Prinkey’s first

application for PTD compensation, however, the commission relied on the reports of two

other examining healthcare providers, Dr. Gary Greenspan and Dr. Lynn A. Luna Jones,

both of whom concluded Prinkey was capable of working. Specifically, Dr. Greenspan

found a whole person impairment of 30 percent due to the allowed cardiac condition but

found Prinkey was capable of sedentary work. Dr. Jones found a 3 percent whole person

impairment due to the allowed psychological condition and, considering only that

condition, concluded Prinkey was capable of working.

No. 22AP-264 3

{¶ 5} Prinkey then filed a second application for PTD compensation on June 4,

2021, supporting his application with new reports from Dr. DiMarzio and Dr. Hartwig,

both of whom again opined Prinkey was permanently and totally disabled from all forms

of sustained, remunerative employment. Two other healthcare providers then examined

Prinkey for purposes of his second application for PTD compensation. Dr. Joseph P.

Percorelli found that Prinkey’s allowed psychological condition alone resulted in a 35

percent whole person impairment and would prevent Prinkey from returning to gainful

employment. Additionally, Dr. Boris Gliner found Prinkey’s symptoms related to the

allowed cardiac condition to be unchanged and found that Prinkey had a whole person

impairment of 30 percent due to that allowed condition but that Prinkey was capable of

sedentary work. In a November 12, 2021 order, the commission found it lacked

jurisdiction to consider Prinkey’s second application for PTD compensation because

Prinkey failed to present evidence of new and changed circumstances as required by R.C.

4123.58(G). Prinkey filed a request for reconsideration, and the commission again

determined it did not have jurisdiction to consider Prinkey’s second application for PTD

compensation. This instant mandamus action followed.

{¶ 6} To be entitled to a writ of mandamus, Prinkey must show a clear legal right

to the relief sought and that the commission has a clear legal duty to provide such relief.

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a

writ of mandamus exists where the relator shows the commission abused its discretion by

entering an order which is not supported by any evidence in the record. State ex rel. Elliott

v. Indus. Comm., 26 Ohio St.3d 76, 78-79 (1986). But when 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, 58 (1987).

{¶ 7} In its first objection to the magistrate’s decision, the commission argues the

magistrate erred in finding the commission applied R.C. 4123.58(G) retroactively to

Prinkey’s claim which was already pending when R.C. 4123.58(G) went into effect.

Because the amendment to the PTD statute would not render any fully adjudicated claims

invalid, and because Prinkey’s claim was merely pending but not fully adjudicated when

No. 22AP-264 4

the statute went into effect, the commission asserts there is no need to consider whether

R.C. 4123.58(G) is unconstitutionally retroactive.

{¶ 8} As the magistrate more fully explained, a court considering whether a statute

is unconstitutionally retroactive applies a two-part test “asking (1) whether the General

Assembly expressly made the statute retroactive and, if so, (2) whether the statute is

substantive or remedial.” State v. Hubbard, 167 Ohio St.3d 77, 2021-Ohio-3710, ¶ 14,

citing State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, ¶ 8. “ ‘It is well established

that a statute is substantive if it impairs or takes away vested rights, affects an accrued

substantive right, imposes new or additional burdens, duties, obligations, or liabilities as

to a past transaction, or creates a new right.’ ” Williams at ¶ 9, quoting Pratte v. Stewart,

125 Ohio St.3d 473, 2010-Ohio-1860, ¶ 37. “ ‘Remedial laws, however, are those affecting

only the remedy provided, and include laws that merely substitute a new or more

appropriate remedy for the enforcement of an existing right.’ ” Id., quoting Pratte at ¶ 37.

Here, the commission does not object to the magistrate’s determination that R.C.

4123.58(G) is remedial rather than substantive. Instead, the commission’s objection

relates to the first prong of the test for constitutional retroactivity and disagrees with the

magistrate’s determination that the General Assembly expressly made R.C. 4123.58(G)

retroactive.

{¶ 9} Amended effective September 28, 2021, R.C. 4123.58(G) provides:

If the industrial commission has adjudicated a claimant’s

application for compensation payable under this section for

permanent total disability and issued a final order denying

compensation for that application, the claimant shall present

evidence of new and changed circumstances before the

industrial commission may consider a subsequent application

filed by the claimant for compensation under this section for

the same injury or occupational disease identified in the

previous application.

The commission notes there is nothing in the language of R.C. 4123.58(G) expressly

making its application retroactive. However, in finding R.C. 4123.58(G) to be expressly

retroactive, the magistrate looked to the enacting language of 2021 Am.Sub.H.B. No. 75

(“H.B. 75”) and determined from that language the General Assembly expressed a clear

intent to make R.C. 4123.58(G) apply retroactively. In pertinent part, H.B. 75 provides

No. 22AP-264 5

“[s]ections 4123.57 and 4123.58 of the Revised Code, as amended by this act, apply to

claims pending on or arising after the effective date of this section.” The commission

acknowledges this enacting language but nonetheless argues the magistrate erred in

finding R.C. 4123.58(G) to be expressly retroactive.

{¶ 10} The commission relies on State ex rel. Hamilton v. Indus. Comm., 10th Dist.

No. 19AP-510, 2021-Ohio-1824, for its position that R.C. 4123.58(G) cannot be considered

to be expressly retroactive because the enacting language of R.C. 4123.58(G) contained in

H.B. 75 is nearly identical to the enacting language of R.C. 4123.56(F), the statute at issue

in Hamilton, contained in 2019 Am.Sub.H.B. No. 81 (“H.B. 81”). Compare H.B. 75

(“[s]ections 4123.57 and 4123.58 of the Revised Code, as amended by this act, apply to

claims pending on or arising after the effective date of this section”) and H.B. 81 (“[t]he

amendments made to sections 4123.56, 4123.58, and 4123.65 of the Revised Code by this

act apply to claims pending on or arising after the effective date of this section”). Because

this court in Hamilton determined R.C. 4123.56(F) was not made expressly retroactive,

the commission asserts we must similarly conclude R.C. 4123.58(G) is not expressly

retroactive. Hamilton at ¶ 28 (in considering the two-part test for constitutional

retroactivity, the court concluded “that the first factor is not met in the present case

because the legislature did not clearly express an intent for the new language of R.C.

4123.56(F) to apply retroactively”).

{¶ 11} Though the commission is correct that the language in H.B. 75 mirrors the

language in H.B. 81, we note that this court in Hamilton never considered the interplay

between the enacting language from H.B. 81 with the statutory text of R.C. 4123.56(F). As

no party called the enacting language of H.B. 81 to the attention of the court, this court

looked only to the statutory text of R.C. 4123.56(F). By contrast, the magistrate in the

instant case considered R.C. 4123.58(G) in the full context of the enacting language of H.B.

75. Accordingly, we do not agree with the commission that we are bound by this court’s

holding in Hamilton. Instead, we agree with the magistrate’s conclusion that, through the

enacting language contained in H.B. 75, the legislature expressed a clear intent for R.C.

4123.58(G) to apply retroactively. Accordingly, we overrule the commission’s first

objection to the magistrate’s decision.

No. 22AP-264 6

{¶ 12} In its second objection to the magistrate’s decision, the commission argues

the magistrate erred in finding the commission did not adequately cite to the evidence it

relied upon or adequately explain the reasoning for its decision that Prinkey had not

presented sufficient evidence of new or changed circumstances. The Supreme Court of

Ohio has repeatedly held that “[i]n an order granting or denying benefits to a claimant, the

commission must ‘specifically state what evidence has been relied upon, and briefly

explain the reasoning for its decision.’ ” State ex rel. Merritt v. Indus. Comm., 161 Ohio

St.3d 180, 2020-Ohio-4379, ¶ 3, quoting State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d

203 (1991), syllabus; and State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481,

483-84 (1983) (the commission “must specifically state which evidence and only that

evidence which has been relied upon to reach [its] conclusion, and a brief explanation

stating why the claimant is or is not entitled to the benefits requested”). Where the

commission fails to comply with Noll, the commission has abused its discretion. Merritt

at ¶ 3, citing State ex rel. Gemind v. Indus. Comm., 82 Ohio St.3d 457, 460 (1998).

{¶ 13} Although the commission stated it had reviewed the prior staff hearing

officer (“SHO”) order denying the first application for PTD compensation and the entirety

of the claim file, it made only a conclusory statement that “there is insufficient evidence of

new and changed circumstances * * * to permit the [commission] to consider this

subsequent application.” (Nov. 12, 2021 SHO Order at 1.) The commission argues it was

not required to explain why it did not find sufficient evidence of new and changed

circumstances because it cannot be required to cite to something that does not exist. We

disagree. The Supreme Court is clear that even where the commission concludes a

claimant is not entitled to the requested benefits, the commission must still briefly explain

why it reached that conclusion. State ex rel. Cline v. Abke Trucking, Inc., 137 Ohio St.3d

557, 2013-Ohio-5159, ¶ 14, 18 (finding the commission’s order violates Noll where “[t]he

commission failed to specifically state the evidence relied upon or explain the reasoning

behind its decision that [the claimant] had voluntarily abandoned his employment * * *

thus making him ineligible for temporary-total-disability compensation,” specifically

explaining “[t]he hearing officer did not identify the evidence relied upon but merely

concluded that as a result of the termination, [the claimant] was barred from receiving

compensation for temporary total disability”); Merritt at ¶ 5-6 (although the commission

No. 22AP-264 7

stated “[a]ll evidence on file has been reviewed and considered in making this finding,” the

commission’s order nonetheless failed to comply with Noll “[b]ecause the order does not

specifically state what evidence the staff hearing officer relied on to reach the conclusion

that [the claimant] was terminated for violating his employer’s drug-free-workplace

policy, thereby voluntarily abandoning his employment”). In other words, the conclusion,

itself, does not constitute the explanation required by Noll and its progeny. Thus, we agree

with the magistrate that the commission abused its discretion in failing to briefly explain

the reasons for its decision that Prinkey had not demonstrated new and changed

circumstances. State ex rel. Campbell v. Conrad, 10th Dist. No. 01AP-1158, 2002-Ohio-

2773, ¶ 47 (the commission’s order was “a clear violation of Noll” where “the [district

hearing officer] found that no new and changed circumstances were established, but he

failed to provide any reasoning for this finding that connects to the evidence of record”).

{¶ 14} Despite the perfunctory, conclusory language in the commission’s decision

and the lack of explanation of the basis for its decision, the commission argues we should

nonetheless deny the requested writ because the evidence in the file does not demonstrate

new and changed circumstances. See State ex rel. Ross v. Indus. Comm., 118 Ohio St.3d

73, 2008-Ohio-1739, ¶ 17-18 (“the mere submission of new evidence is not automatically

a new and changed circumstance,” and simply submitting reports of a doctor who

disagreed with the opinion of the doctor in a prior application is not enough to show new

and changed circumstances; instead, the evidence must show an exacerbation of the

condition or the allowance of a new condition), citing State ex rel. Keith v. Indus. Comm.,

62 Ohio St.3d 139, 141-42 (1991), and State ex rel. Poneris v. Indus. Comm., 111 Ohio St.3d

264, 2006-Ohio-5702. Through this argument, the commission essentially asks us to

weigh the evidence before the commission, but such is not the role of this court. State ex

rel. Perez v. Indus. Comm., 147 Ohio St.3d 383, 2016-Ohio-5084, ¶ 20 (“[t]he commission

is the exclusive fact-finder with sole responsibility to evaluate the weight and credibility of

the evidence”).

{¶ 15} Accordingly, because we agree with the magistrate that the commission

abused its discretion in failing to briefly explain the reasons for its decision finding no new

and changed circumstances, we overrule the commission’s second objection to the

magistrate’s decision. We note that nothing in this decision should be construed as

No. 22AP-264 8

requiring the commission to discuss or rely on any specific piece of evidence in the record;

instead, we reiterate that the commission must provide a brief explanation for its decision.

See State ex rel. Digiacinto v. Indus. Comm., 159 Ohio St.3d 346, 2020-Ohio-707, ¶ 15

(while “[t]he commission is required to consider all of the evidence that is properly before

it, * * * the commission is not required to list in its order each piece of evidence that it has

considered,” but instead “the commission’s order need list only the evidence that the

commission relied on in reaching its conclusion”) (Emphasis sic.), citing State ex rel.

Buttolph v. Gen. Motors Corp., Terex Div., 79 Ohio St.3d 73, 77 (1997), and State ex rel.

Metz v. GTC, Inc., 142 Ohio St.3d 359, 2015-Ohio-1348, ¶ 14. Thus, we agree with the

magistrate that the appropriate remedy in this case is to grant a limited writ of mandamus

ordering the commission to (1) specifically state the evidence the commission relied on in

reaching its decision, and (2) briefly explain the reasoning for its decision. See Cline at

¶ 18; Merritt at ¶ 6.

{¶ 16} Following our independent review of the record pursuant to Civ.R. 53, we

find the magistrate did not err in determining Prinkey is entitled to a limited writ of

mandamus. Accordingly, we adopt the magistrate’s findings of fact and conclusions of law

and overrule the commission’s objections to the magistrate’s decision. We grant Prinkey’s

request for a limited writ of mandamus, and we remand this matter to the commission for

further proceedings in accordance with law and this decision.

Objections overruled;

limited writ of mandamus granted;

cause remanded.

DORRIAN and LELAND, JJ., concur.

No. 22AP-264 9

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Paul Prinkey, Jr., :

Relator, :

v. : No. 22AP-264

Emerine’s Towing, Inc. et al., : (REGULAR CALENDAR)

Respondents. :

__________________________________________

MAGISTRATE’S DECISION

Rendered on August 18, 2023

Schiavoni, Schiavoni, Bush & Muldowney, and Shawn R.

Muldowney, for relator.

Dave Yost, Attorney General, and Denise A. Corea, for

respondent Industrial Commission of Ohio.

____

IN MANDAMUS

{¶ 17} Relator, Paul Prinkey, Jr., seeks a writ of mandamus ordering respondent

Industrial Commission of Ohio (“commission”) to amend its order finding that it had no

jurisdiction to address relator’s second application for permanent total disability (“PTD”)

compensation under R.C. 4123.58(G), and to issue a new order finding relator is entitled

to PTD.

I. Findings of Fact:

{¶ 18} 1. Relator suffered an injury on January 19, 2015 in the course of and arising

out of his employment with respondent Emerine’s Towing, Inc. (“Emerine’s Towing”).

No. 22AP-264 10

{¶ 19} 2. Relator’s claim was allowed for the conditions of (1) myocardial infarction

and substantial aggravation of preexisting coronary artery disease; and (2) major

depressive disorder, single episode.

{¶ 20} 3. For purposes of evaluating PTD, relator was examined by two healthcare

providers prior to filing his first PTD application. Relator was first examined by Randall

J. Hartwig, D.O., on November 30, 2018. Dr. Hartwig submitted a report dated December

4, 2018, in which he opined that relator was permanently and totally disabled from any

and all sustained, gainful, and remunerative employment as a result of the allowed

conditions in the claim.

{¶ 21} 4. Relator was examined by Lynn Ross DiMarzio, Ph.D., on March 1, 2017.

On December 6, 2018, Dr. DiMarzio again examined relator for purposes of determining

whether his psychiatric condition was permanent and whether relator was permanently

and totally disabled from any and all gainful forms of employment as a result of such

condition. Dr. DiMarzio found that relator’s allowed condition of major depressive

disorder, single episode constituted approximately 25 percent disability due to the

psychiatric condition alone. Dr. DiMarzio found that relator was permanently and totally

disabled from any and all forms of remunerative employment, noting that relator’s

psychiatric condition was directly related to relator’s approved physical conditions, and

recommended that relator continue with psychological counseling and psychiatric

medication management.

{¶ 22} 5. Relator filed his first application for PTD on February 4, 2019.

{¶ 23} 6. Following his PTD application, relator was first examined by Gary A.

Greenspan, M.D., on October 18, 2019. In a report dated October 29, 2019, Dr. Greenspan

found that relator had a whole person impairment of 30 percent due to the allowed

condition of myocardial infarction and substantial aggravation of pre-existing coronary

artery disease. Dr. Greenspan opined that relator was capable of sedentary work exerting

up to ten pounds of force occasionally.

{¶ 24} 7. Relator was next examined by Lynn A. Luna Jones, Ph.D., on October 25,

2019. In a report dated October 31, 2019, Dr. Jones found that relator appeared to be at

maximum medical improvement (“MMI”) and was “functioning fairly well from a

psychological standpoint.” (Stip. at 32.) Dr. Jones opined that relator had a three percent

No. 22AP-264 11

whole person impairment due to the allowed psychological condition of major depressive

disorder, single episode. Considering only that allowed psychological condition, Dr. Jones

concluded that relator would be capable of working.

{¶ 25} 8. On November 25, 2019, relator was examined by Shannon C. Valentine,

MRC, CRC, a vocational specialist. Valentine opined that relator would not be capable of

engaging in any sustained, remunerative employment.

{¶ 26} 9. Relator’s first application for PTD was heard by a commission staff

hearing officer (“SHO”) on January 14, 2020. Denying the application for PTD in an order

mailed on January 18, 2020, the SHO, relying on the reports of Drs. Greenspan and Jones,

found that relator was not precluded from engaging in sustained remunerative

employment and was therefore not permanently and totally disabled.

{¶ 27} 10. Following the denial of his first PTD application, relator was examined

by two healthcare providers prior to filing his second PTD application. On September 30,

2020, Dr. DiMarzio conducted another evaluation of relator including a mental status

examination, clinical interview, and psychological testing. In a report dated November 9,

2020, Dr. DiMarzio again found that relator had a disability of approximately 30 percent

based solely on relator’s allowed psychiatric condition of major depressive disorder, single

episode. Dr. DiMarzio again concluded that relator was permanently and totally disabled

from any and all forms of remunerative employment.

{¶ 28} 11. Relator was again examined by Dr. Hartwig on May 20, 2021. In a report

dated May 22, 2021, Dr. Hartwig opined that relator was permanently and totally disabled

from any and all sustained, gainful, and remunerative employment as a result of the

allowed conditions in the claim.

{¶ 29} 12. Relator filed a second application for PTD on June 4, 2021.

{¶ 30} 13. Following his second application, relator was examined by Joseph P.

Pecorelli, Ph.D., on August 17, 2021. In a report dated August 27, 2021, Dr. Pecorelli

concluded that relator’s allowed psychological condition of major depressive disorder,

single episode had reached MMI. Dr. Pecorelli found that the allowed psychological

condition alone resulted in a 35 percent whole person impairment and would interfere

with and prevent relator from returning to gainful employment.

No. 22AP-264 12

{¶ 31} 14. Relator was next examined by Boris Gliner, M.D., on August 23, 2021. In

a report dated August 26, 2021, Dr. Gliner reported that according to relator, his

“symptoms overall are unchanged.”(Stip. at 59.) Regarding whether relator had reached

MMI with regard to the allowed conditions, Dr. Gliner opined as follows:

The injured worker sustained a myocardial infarction on

January 19th, 2015, and underwent quadruple bypass on

January 20th, 2015. He is not experiencing chest pain or

shortness of breath. He is not scheduled for any tests or

procedures. His medical therapy is unchanged. In my opinion,

based on the history and physical examination and review of

the file provided to me, the injured worker has reached

maximal medical improvement with regard to allowed

condition of myocardial infarction and substantial

aggravation of pre-existing coronary artery disease. No

fundamental functional or physiological change can be

expected within reasonable probability in spite of continued

medical or rehabilitative procedures of his condition.

(Stip. at 60.) Dr. Gliner found that relator had a whole person impairment of 30 percent

due to the allowed condition of myocardial infarction and substantial aggravation of

preexisting coronary artery disease. Dr. Gliner opined that relator was capable of

sedentary work exerting up to ten pounds of force occasionally.

{¶ 32} 15. Relator’s second application for PTD was heard by a commission SHO on

November 9, 2021. In an order dated November 12, 2021, the SHO found the commission

lacked jurisdiction to consider relator’s second PTD application because relator failed to

present evidence of new and changed circumstances as required by R.C. 4123.58(G).

Noting the denial of relator’s first PTD application on January 18, 2020, the SHO found

that “there is insufficient evidence of new and changed circumstances, prior to the

06/04/2021 filing of this Application for Permanent Total Disability Compensation to

permit the Industrial Commission to consider this subsequent Application.” (Stip. at 79.)

The SHO stated the decision was based on a review of the January 18, 2020 SHO order

and a review of the claim file.

{¶ 33} 16. On November 17, 2021, relator filed a request for reconsideration of the

SHO’s November 12, 2021 order.

No. 22AP-264 13

{¶ 34} 17. The commission determined that it did not have continuing jurisdiction

and stated that the November 12, 2021 SHO order remained in full force and effect.

II. Discussion and Conclusions of Law

{¶ 35} Relator seeks a writ of mandamus ordering the commission to award him

PTD compensation. Two questions are presented in this mandamus action: (1) whether

R.C. 4123.58(G) is unconstitutionally retroactive; and (2) if R.C. 4123.58(G) is not

unconstitutionally retroactive, whether the SHO erred in concluding relator failed to meet

his burden under the statute of presenting evidence of new and changed circumstances to

enable the commission to consider the application.

A. Requirements for Mandamus

{¶ 36} In order for this court to issue a writ of mandamus as a remedy from a

determination of the commission, a relator must establish a clear legal right to the

requested relief, that the commission has a clear legal duty to provide such relief, and the

lack of an adequate remedy in the ordinary course of the law. State ex rel. Belle Tire

Distribs. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122; State ex rel. Pressley v.

Indus. Comm., 11 Ohio St.2d 141 (1967). With regard to factual determinations, where the

commission’s determination is supported by some evidence, it has not abused its

discretion and this court must uphold the decision. State ex rel. Seibert v. Richard Cyr,

Inc., 157 Ohio St.3d 266, 2019-Ohio-3341, ¶ 44, citing State ex rel. Pass v. C.S.T.

Extraction Co., 74 Ohio St.3d 373, 376 (1996). Questions of law are reviewed de novo. State

ex rel. Autozone Stores, Inc. v. Indus. Comm., 10th Dist. No. 21AP-294, 2023-Ohio-633,

¶ 16. See State v. Leyh, 166 Ohio St.3d 365, 2022-Ohio-292, ¶ 14; Hanna v. Groom, 10th

Dist. No. 07AP-502, 2008-Ohio-765, ¶ 10.

B. Permanent Total Disability under Workers’ Compensation System

{¶ 37} “[T]he purpose of permanent and total disability benefits is to compensate

injured persons for impairment of earning capacity.” State ex rel. Stephenson v. Indus.

Comm., 31 Ohio St.3d 167, 170 (1987), citing State ex rel. Gen. Motors Corp. v. Indus.

Comm., 42 Ohio St.2d 278 (1975). “Permanent total disability is the inability to do any

sustained remunerative work.” State ex rel. Schultz v. Indus. Comm., 96 Ohio St.3d 27,

2002-Ohio-3316, ¶ 61, citing Stephenson at 170. See Ohio Adm.Code 4121-3-34(B)(1).

No. 22AP-264 14

{¶ 38} R.C. 4123.58 governs compensation for PTD, allowing compensation only

when one of the following conditions is met:

(1) The claimant has lost, or lost the use of both hands or both

arms, or both feet or both legs, or both eyes, or of any two

thereof; however, the loss or loss of use of one limb does not

constitute the loss or loss of use of two body parts;

(2) The impairment resulting from the employee’s injury or

occupational disease prevents the employee from engaging in

sustained remunerative employment utilizing the

employment skills that the employee has or may reasonably

be expected to develop.

R.C. 4123.58(C). PTD compensation is prohibited when the reason the applicant is unable

to engage in sustained remunerative employment is due to any of the following reasons,

whether individually or in combination:

(1) Impairments of the employee that are not the result of an

allowed injury or occupational disease;

(2) Solely the employee’s age or aging;

(3) The employee retired or otherwise is not working for

reasons unrelated to the allowed injury or occupational

disease.

(4) The employee has not engaged in educational or

rehabilitative efforts to enhance the employee’s employability,

unless such efforts are determined to be in vain.

R.C. 4123.58(D).

No. 22AP-264 15

{¶ 39} R.C. 4123.58 was amended by 2021 Am.Sub.H.B. No. 75 (“H.B. 75”), which

in part added R.C. 4123.58(G).1 Effective September 28, 2021, the statute provides:

If the industrial commission has adjudicated a claimant’s

application for compensation payable under this section for

permanent total disability and issued a final order denying

compensation for that application, the claimant shall present

evidence of new and changed circumstances before the

industrial commission may consider a subsequent application

filed by the claimant for compensation under this section for

the same injury or occupational disease identified in the

previous application.

1 Following the amendments to R.C. 4123.58 enacted in H.B. 75, R.C. 4123.58 was amended by the 134th

General Assembly a second time in Am.Sub.H.B. No. 281 (“H.B. 281”). H.B. 281, which became effective

April 6, 2023, made a minor change to R.C. 4123.58(F) by striking through and thereby deleting the word

“handicapped,” which immediately preceded “individuals,” and inserting the word “with disabilities” after

the aforementioned “individuals.” However, the remaining text of R.C. 4123.58 in H.B. 281 did not include

the text of R.C. 4123.58(G). H.B. 281 gave no specific indication that it intended to amend R.C. 4123.58 by

removing R.C. 4123.58(G) through the usual means of striking through the existing text of R.C. 4123.58(G).

See Ohio Adm.Code 103-5-01 (“Old matter that is to be omitted from an existing codified or uncodified

section is indicated by retaining the matter as it appears in the section and striking it through with a

horizontal line.”). Section 2 of H.B. 281 provided in pertinent part: “That existing sections * * * 4123.58

* * * of the Revised Code are hereby repealed.” See State v. Wilson, 77 Ohio St.3d 334, 337 (1997) (stating

in considering the effect of a former version of R.C. 151.52 that “[m]atter to be affected by an ‘existing

sections’ repeal must appear in the body of the enrolled Act and must be stricken through”).

The Legislative Service Commission includes the text of R.C. 4123.58(G) in its official online version of the

Revised Code. The following note from the Legislative Service Commission appears after the text of R.C.

4123.58 on its website: “The Legislative Service Commission presents the text of this section as a composite

of the section as amended by multiple acts of the General Assembly. This presentation recognizes the

principle stated in R.C. 1.52(B) that amendments are to be harmonized if reasonably capable of

simultaneous operation.” Legislative Service Commission, Section 4123.58, https://codes.ohio.gov/ohio-

revised-code/section-4123.58 (accessed August 8, 2023).

The provision in R.C. 1.52 noted by the Legislative Service Commission provides:

If amendments to the same statute are enacted at the same or different

sessions of the legislature, one amendment without reference to another,

the amendments are to be harmonized, if possible, so that effect may be

given to each. If the amendments are substantively irreconcilable, the latest

in date of enactment prevails. The fact that a later amendment restates

language deleted by an earlier amendment, or fails to include language

inserted by an earlier amendment, does not of itself make the amendments

irreconcilable. Amendments are irreconcilable only when changes made by

each cannot reasonably be put into simultaneous operation.

R.C. 1.52(B). See State v. McCullough, 9th Dist. No. 28917, 2018-Ohio-4499, ¶ 11-12; Wilson at 337.

The magistrate infers the absence of R.C. 4123.58(G) from H.B. 281 may have occurred because H.B. 281

was initially passed by the House on June 16, 2021, which was before the effective date of H.B. 75.

Regardless, in the instant matter, no party contends that R.C. 4123.58(G) was not in effect at the time of

the SHO’s order denying relator’s second application for PTD in this matter. As a result, it is not necessary

at this time to resolve the impact, if any, of H.B. 281 to R.C. 4123.58(G).

No. 22AP-264 16

R.C. 4123.58(G).

{¶ 40} Ohio Adm.Code 4121-3-34 governs the processing and adjudication of

applications for PTD. The applicant bears the burden to prove permanent total disability

by establishing under a preponderance of the evidence that the disability is permanent and

that the inability to work is causally related to the allowed conditions. Ohio Adm.Code

4121-3-34(D)(3)(a). See State ex rel. Sheppard v. Indus. Comm., 139 Ohio St.3d 223, 2014-

Ohio-1904, ¶ 16; State ex rel. LTV Steel Co. v. Indus. Comm., 65 Ohio St.3d 22, 23 (1992).

The application must “identify, if already on file, or be accompanied by medical evidence

from a physician, or a psychologist or a psychiatric specialist in a claim that has been

allowed for a psychiatric or psychological condition(s), that supports an application for

compensation for permanent total disability.” Ohio Adm.Code 4121-3-34(C)(1). See State

ex rel. Kent State Univ. v. Indus. Comm., 10th Dist. No. 15AP-416, 2016-Ohio-1032

(stating that under Ohio Adm.Code 4121-3-34(C)(1) an application can be dismissed if it

is filed without the required medical evidence).

{¶ 41} The relevant inquiry in PTD cases is whether the applicant engages in or is

medically capable of sustained remunerative employment. Seibert, 2019-Ohio-3341, at

¶ 18, citing State ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-6086,

¶ 16; State ex rel. Franta v. Indus. Comm. of Ohio, 10th Dist. No. 19AP-530, 2021-Ohio-

1501, ¶ 6. The term “sustained” has not been precisely defined for workers’ compensation

purposes. In order to be considered sustained, remunerative activity does not have to

occur on a regular or daily basis, but “any ‘ongoing pattern’ of activity can be categorized

as sustained activity.” State ex rel. McNea v. Indus. Comm., 131 Ohio St.3d 408, 2012-

Ohio-1296, ¶ 13, quoting Schultz, 2002-Ohio-3316, at ¶ 63. The Supreme Court of Ohio

has held that “part-time work constitutes sustained remunerative employment.” State ex

rel. Toth v. Indus. Comm., 80 Ohio St.3d 360, 362 (1997). Importantly, however, there is

no bright-line numerical analysis for determining whether part-time work meets the

qualifications for sustained remunerative employment in PTD cases. State ex rel.

Bonnlander v. Hamon, 150 Ohio St.3d 567, 2017-Ohio-4003, ¶ 20 (stating that “there is

no hourly standard for determining one’s capability to perform sustained remunerative

employment on a part-time basis,” but rather the “commission decides whether a claimant

is capable of sustained remunerative employment on a case-by-case basis”).

No. 22AP-264 17

{¶ 42} “Entitlement to permanent total disability compensation requires a showing

that the medical impairment due to the allowed conditions, either alone or together with

nonmedical disability factors, prevents claimant from engaging in sustained remunerative

employment.” State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452, 455 (1993),

quoting LTV Steel Co., 65 Ohio St.3d at 24. Nonmedical factors include the “claimant’s age,

education, work record, and all other factors, such as physical, psychological, and

sociological, that are contained within the record.” Stephenson, 31 Ohio St.3d at 173. “[A]

claimant’s medical capacity to work is not dispositive if the claimant’s age, experience,

education, etc., foreclose the claimant’s employability.” State ex rel. Gay v. Mihm, 68 Ohio

St.3d 315, 321 (1994). See State ex rel. Navistar, Inc. v. Indus. Comm., 160 Ohio St.3d 7,

2020-Ohio-712, ¶ 23, quoting State ex rel. Galion Mfg. Div., Dresser Indus., Inc. v.

Haygood, 60 Ohio St.3d 38, 40 (1991) (“While the commission may not deny PTD

compensation without considering nonmedical factors, it may grant PTD compensation

without considering nonmedical factors when ‘medical factors alone preclude sustained

remunerative employment.’ ”).

C. Whether R.C. 4123.58(G) Is Unconstitutionally Retroactive

{¶ 43} Relator argues that the commission erred by applying R.C. 4123.58(G) to his

application for PTD compensation since it was filed before the effective date of the statute.

Relator contends that applying R.C. 4123.58(G) to PTD applications already pending at

the time the statutory provisions became effective constitutes an impermissible retroactive

application.

{¶ 44} Before turning to the merits of the question presented, it is necessary to

consider the appropriate standard of review. Relator argues the commission abused its

discretion by applying the statute retroactively in the absence of clear intent. The

commission does not specifically articulate a standard of review with regard to the

constitutional question, but instead provides a general abuse of discretion standard. The

magistrate finds this issue to be a constitutional challenge involving statutory

interpretation, which is therefore reviewed de novo. Newburgh Hts. v. State, 168 Ohio

St.3d 513, 2022-Ohio-1642, ¶ 18, quoting Put-In-Bay v. Mathys, 163 Ohio St.3d 1, 2020-

Ohio-4421, ¶ 11 (“ ‘We review constitutional challenges to state and local legislation de

No. 22AP-264 18

novo.’ ”); TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers &

Surveyors, __ Ohio St.3d __, 2022-Ohio-4677, ¶ 42-43; State ex rel. McDonald v. Indus.

Comm., 10th Dist. No. 20AP-386, 2021-Ohio-4494, ¶ 12, citing State ex rel. Natl. Lime &

Stone Co. v. Marion Cty. Bd. of Commrs., 152 Ohio St.3d 393, 2017-Ohio-8348, ¶ 14

(“Statutory interpretation presents a question of law subject to a de novo standard of

review.”). When considering questions of statutory interpretation under Ohio law, “ ‘it is

never mandatory for a court to defer to the judgment of an administrative agency’ and a

court should never do so to ‘alter the meaning of clear text.’ ” Autozone, 2023-Ohio-633,

at ¶ 16, quoting TWISM at ¶ 42.

{¶ 45} To begin, statutes enjoy a strong presumption of constitutionality. State v.

Cook, 83 Ohio St.3d 404, 409 (1998), quoting State ex rel. Dickman v. Defenbacher, 164

Ohio St. 142, 147 (1955) (“A regularly enacted statute of Ohio is presumed to be

constitutional and is therefore entitled to the benefit of every presumption in favor of its

constitutionality.”). Therefore, “ ‘ “before any legislative power, as expressed in a statute,

can be held invalid, it must appear that such power is clearly denied by some constitutional

provision.” ’ ” Newburgh at ¶ 19, quoting Tobacco Use Prevention & Control Found. Bd.

of Trustees v. Boyce, 127 Ohio St.3d 511, 2010-Ohio-6207, ¶ 10, quoting Williams v.

Scudder, 102 Ohio St. 305, 307 (1921).

{¶ 46} The Ohio Constitution prohibits the General Assembly from passing

retroactive laws and protects vested rights from new legislative encroachments as follows:

The general assembly shall have no power to pass retroactive

laws, or laws impairing the obligation of contracts; but may,

by general laws, authorize courts to carry into effect, upon

such terms as shall be just and equitable, the manifest

intention of parties, and officers, by curing omissions, defects,

and errors, in instruments and proceedings, arising out of

their want of conformity with the laws of this state.

Article II, Section 28, Ohio Constitution.2 See State v. Lasalle, 96 Ohio St.3d 178, 2002-

Ohio-4009, ¶ 13; Coca-Cola Bottling Corp. v. Lindley, 54 Ohio St.2d 1, 6 (1978), quoting

Lakengren, Inc. v. Kosydar, 44 Ohio St.2d 199, 201 (1975) (stating that the constitutional

2 The Supreme Court of Ohio has noted that the terms “retroactive” and “retrospective” have historically

been used interchangeably. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶ 1, fn. 1; Bielat v.

Bielat, 87 Ohio St.3d 350, 353 (2000).

No. 22AP-264 19

“prohibition against retroactive laws ‘is a bar against the state’s imposing new duties and

obligations upon a person’s past conduct and transactions, and it is a protection for the

individual who is assured that he may rely upon the law as it is written and not later be

subject to new obligations thereby’ ”). “[T]he presumption against retroactive legislation

is deeply rooted * * * and embodies a legal doctrine centuries older than our Republic.”

Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994).

{¶ 47} Courts considering whether a statute is unconstitutionally retroactive must

apply a two-part test articulated in Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d

100 (1988). Lasalle at ¶ 14. First, the reviewing court must determine whether the General

Assembly expressly made the statute retroactive. See Van Fossen at 106 (stating that “[t]he

issue of whether a statute may constitutionally be applied retrospectively does not arise

unless there has been a prior determination that the General Assembly has specified that

the statute so apply”); State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶ 10.

Pursuant to R.C. 1.48, “[a] statute is presumed to be prospective in its operation unless

expressly made retrospective.” Thus, where a statute contains “no clear indication of

retroactive application, then the statute may only apply to cases which arise subsequent to

its enactment.” Kiser v. Coleman, 28 Ohio St.3d 259, 262 (1986). See Consilio at ¶ 15

(“Retroactivity is not to be inferred.”).

{¶ 48} The commission argues R.C. 4123.58(G) does not apply retroactively

because “a retroactive application of the statute would mean that the newly amended

version would apply to all previously adjudicated second applications for PTD.” (Comm.

Brief at 6.) This argument, however, does not comport with the statutory text enacting R.C.

4123.58(G). Under the terms of H.B. 75, R.C. 4123.58(G) “appl[ies] to claims pending on

or arising on or after the effective date of this section,” which was September 28, 2021.

2021 Am.Sub.H.B. No. 75, Section 8. Based on this express indication, it is clear the

General Assembly made the statute in question retroactive. See State ex rel. Kilbane v.

Indus. Comm., 91 Ohio St.3d 258, 259 (2001) (finding the “express legislative intent for

retroactivity is obvious here because uncodified law makes the [amendment] applicable to

all ‘pending’ claims for compensation, with certain exceptions,” thereby “chang[ing] the

way the commission reviews applications to settle claims and applies to causes of action

* * * that arose prior to the effective date of the statute”); Ackison v. Anchor Packing Co.,

No. 22AP-264 20

120 Ohio St.3d 228, 2008-Ohio-5243, ¶ 13 (finding statute expressly made retroactive

where General Assembly directed that amended statutory provisions applied to cases

pending on and thus filed before the effective date of the amendments); Thorton v.

Montville Plastics & Rubber, Inc., 121 Ohio St.3d 124, 2009-Ohio-360, ¶ 19 (finding

amendment to R.C. 4123.512(H) that was applicable to claims pending on the effective

date of the amendment applied retroactively); Van Fossen at 106. The commission also

cites to this court’s decision in State ex rel. Hamilton v. Indus. Comm., 10th Dist. No.

19AP-510, 2021-Ohio-1824, in arguing that R.C. 4123.58(G) does not apply retroactively.

In Hamilton, however, it was found that the first factor was not met “because the

legislature did not clearly express an intent for the new language [in the statute] to apply

retroactively.” Id. at ¶ 28. That case did not involve statutory language similar to that found

in H.B. 75 applying the amendments to claims pending on the effective date of

R.C. 4123.58(G). As a result, Hamilton is not determinative of the question presented in

this case.

{¶ 49} Here, relator’s second application for PTD compensation was filed on

June 4, 2021. Because the second PTD application was filed before and remained pending

when R.C. 4123.58(G) became effective on September 28, 2021, the statute applied

retroactively to relator’s claim. However, this does not end the analysis, but instead

requires consideration of the second part of the retroactivity test—whether the statute is

unconstitutionally retroactive.

{¶ 50} Under this second part of the analysis, a court will find that “[a] statutory

enactment is repugnant to Section 28, Article II if it is expressly retroactive and is

substantive, as opposed to merely remedial.” Lasalle, 2002-Ohio-4009, at ¶ 13.

“Substantive law” has been defined as “[t]he part of the law that creates, defines, and

regulates the rights, duties, and powers of parties.” Black’s Law Dictionary 1658 (10th

Ed.2014). “It is well established that a statute is substantive if it impairs or takes away

vested rights, affects an accrued substantive right, imposes new or additional burdens,

duties, obligations, or liabilities as to a past transaction, or creates a new right.” Pratte v.

Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, ¶ 37, citing Van Fossen, 36 Ohio St.3d at

107. See Bielat v. Bielat, 87 Ohio St.3d 350, 354 (2000) (stating that a retroactive law is

one “that is ‘made to affect acts or facts occurring, or rights accruing, before it came into

No. 22AP-264 21

force’ ”); Hope Academy Broadway Campus v. State Dept. of Edn., 10th Dist. No. 07AP-

758, 2008-Ohio-4694, ¶ 12, quoting State ex rel. Matz v. Brown, 37 Ohio St.3d 279, 281

(1988) (“A statutory provision that attaches a new disability to a past transaction or

consideration is not invalid unless the past transaction or consideration created at least a

‘reasonable expectation of finality.’ ”); State v. Brooks, 170 Ohio St.3d 1, 2022-Ohio-2478,

¶ 10 (stating that “laws affecting rights, which may be protected by procedure, are

substantive in nature.”).

{¶ 51} On the other hand, remedial statutes are “are those affecting only the remedy

provided” and “include laws which merely substitute a new or more appropriate remedy

for the enforcement of an existing right.” Van Fossen at 107. A remedy has been defined

as “[t]he means of enforcing a right or preventing or redressing a wrong; legal or equitable

relief.” Black’s at 1485.3 Laws altering a tribunal’s jurisdiction have also been found not to

violate the constitutional ban on retroactive laws. State v. Walls, 96 Ohio St.3d 437, 2002-

Ohio-5059, ¶ 19; Landgraf, 511 U.S. at 274, quoting Hallowell v. Commons, 239 U.S. 506,

508 (1916) (“Application of a new jurisdictional rule usually ‘takes away no substantive

right but simply changes the tribunal that is to hear the case.’ ”). Additionally, statutes

“relating to procedures—rules of practice, courses of procedure, and methods of review—

are ordinarily remedial in nature.” Brooks at ¶ 10, citing Van Fossen at 108. See Pivonka

3 The distinctions between substantive law, remedies, and procedure have been further explained as

follows:

“A remedy is anything a court can do for a litigant who has been wronged

or is about to be wronged. The two most common remedies are judgments

that plaintiffs are entitled to collect sums of money from defendants

(damages) and orders to defendants to refrain from their wrongful

conduct or to undo its consequences (injunctions). The court decides

whether the litigant has been wronged under the substantive law that

governs primary rights and duties; it conducts its inquiry in accordance

with the procedural law. The law of remedies falls somewhere in between

procedure and primary substantive rights. Remedies are substantive, but

they are distinct from the rest of substantive law, and sometimes their

details blur into procedure. For long periods in our past, remedies were

casually equated with procedure.”

Black’s at 1485, quoting Douglas Laycock, Modern American Remedies 1 (4th Ed.2010.). Additionally, and

somewhat contradictorily, the following explanation is given: “So far as the administration of justice is

concerned with the application of remedies to violated rights, we may say that the substantive law defines

the remedy and the right, while the law of procedure defines the modes and conditions of the application

of one to the other.” Black’s at 1658, quoting John Salmond, Jurisprudence 476 (10th Ed.1947.).

No. 22AP-264 22

v. Corcoran, 162 Ohio St.3d 326, 2020-Ohio-3476, ¶ 28 (“Litigants have no right to a

particular remedy or procedure, and nothing prohibits the legislature from altering or

modifying methods, procedures or remedies as it sees fit.”); Estate of Johnson v. Randall

Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, ¶ 20; Landgraf at 275 (stating that

“[c]hanges in procedural rules,” which “regulate secondary rather than primary conduct,”

may frequently “be applied in suits arising before their enactment without raising concerns

about retroactivity”); Weil v. Taxicabs of Cincinnati, Inc., 139 Ohio St. 198, 205 (1942)

(stating that remedies “have to do with the methods and procedure by which rights are

recognized, protected and enforced, not with the rights themselves”); Kilbreath v. Rudy,

16 Ohio St.2d 70 (1968), paragraph two of the syllabus. A “procedural law” has been

defined as “[t]he rules that prescribe the steps for having a right or duty judicially enforced,

as opposed to the law that defines the specific rights or duties themselves.” Black’s at 1398.

{¶ 52} Nearly as often as courts have classified laws as substantive, procedural, or

remedial, they have acknowledged the difficulty in precisely defining and distinguishing

between these formalistic classifications. See State ex rel. Holdridge v. Indus. Comm., 11

Ohio St.2d 175, 178 (1967) (“It is doubtful if a perfect definition of ‘substantive law’ or

‘procedural or remedial law’ could be devised.”); Van Fossen at paragraph 3 of the syllabus

(“While in some cases the line between substantive and remedial may be difficult to

ascertain, these terms, as applied, provide readily distinguishable contours.”); Landgraf

at 270 (stating that “[a]ny test of retroactivity will leave room for disagreement in hard

cases, and is unlikely to classify the enormous variety of legal changes with perfect

philosophical clarity,” but noting that “familiar considerations of fair notice, reasonable

reliance, and settled expectations offer sound guidance”); Heyman v. Heyman, 10th Dist.

No. 05AP-475, 2006-Ohio-1345, ¶ 12 (“The distinction between substantive and remedial

statutes can be difficult to define, as a statute often contains attributes of both.”); State ex

rel. Romans v. Elder Beerman Stores Corp., 100 Ohio St.3d 165, 2003-Ohio-5363, ¶ 14;

In re Smith, 77 Ohio App.3d 1, 12 (6th Dist.1991). Given this difficulty, a review of pertinent

cases is warranted.

{¶ 53} The Supreme Court of Ohio in Van Fossen considered whether a newly

enacted amendment to the workers’ compensation act, which placed stricter conditions on

employer-employee intentional tort actions, was able to be applied retroactively to cases

No. 22AP-264 23

pending in a court of appeals on the effective date of the statute. At issue was a provision

in the new statute providing a definition of the term “substantially certain.” The new

statute provided that “ ‘ “Substantially certain” means that an employer acts with

deliberate intent to cause an employee to suffer injury, disease, condition, or death.’ ”

(Emphasis sic.) Van Fossen, 36 Ohio St.3d at 108. However, at the time the claim was

pending, the intentional tort requirement of substantial certainty was given the following

definition under the common law: “ ‘[A] specific intent to injure is not an essential element

of an intentional tort where the actor proceeds despite a perceived threat of harm to others

which is substantially certain * * * to occur.’ ” (Emphasis sic.) Id. at 108-09, quoting Jones

v. VIP Dev. Co., 15 Ohio St.3d 90, 95 (1984). Because the new statute “would remove

appellees’ potentially viable, court-enunciated cause of action by imposing a new, more

difficult statutory restriction upon appellees’ ability to bring the instant action,” the court

held that “this result constitutes a limitation, or denial of, a substantive right, and

consequently causes the statute to fall within the ban against retroactive laws established

by Section 28, Article II of the Ohio Constitution.” Id. at 109.

{¶ 54} In Holdridge, a workers’ compensation claimant had lost function in both

eyes, the second one due to an industrial accident. He had been declared permanently and

totally disabled in 1947 under a statute that provided that “[i]n cases of permanent total

disability, the award shall be sixty-six and two-thirds per cent of the average weekly wages,

and shall continue until the death of such person so totally disabled,” and further stated

that “[t]he loss of both hands or both arms, or both feet or both legs, or both eyes, or of any

two thereof, shall prima facie constitute total and permanent disability, to be

compensated according to the provisions of this section.” (Emphasis sic.) Holdridge at

177-78, quoting G.C. 1465-81. Several years later, Holdridge had “through persistent and

determined efforts” developed accommodations that enabled him to have employment. Id.

at 176. Based on this, the commission declared in 1964 that Holdridge was no longer

permanently and totally disabled. However, the statute providing for Holdridge’s disability

benefits had been amended in 1959 to provide that “ ‘[i]n cases of permanent total

disability, the employee shall receive an award to continue until his death” of certain

specified amounts and further stated that “[t]he loss of both hands or both arms, or both

feet or both legs, or both eyes, or of any two thereof, constitutes total and permanent

No. 22AP-264 24

disability, to be compensated according to this section.” (Emphasis sic.) Holdridge at 178,

quoting R.C. 4123.58.

{¶ 55} The Holdridge court examined the distinctions between substantive and

procedural aspects of the statutes, stating:

Each of the two statutes defines the loss of both eyes as a

permanent and total disability. This is substantive law. Such a

disability imposes a duty or obligation upon the employer

under the law of Ohio to meet and overcome the prima facie

evidence of total and permanent disability. The employer

failed to overcome and, so far as we can determine from the

record, did not endeavor to overcome the presumption of total

disability. The Industrial Commission apparently recognized

that the relator suffered a permanent and total disability and

allowed compensation under both statutes. It follows,

therefore, that since the prima facie proof factor concerned

only the manner of arriving at a fact conclusion, upon which

the substantive law would operate, it was itself procedural or

remedial rather than substantive.

Id. at 178. With regard to retroactive application of remedial legislation, the court held that

“[l]aws of a remedial nature providing rules of practice, courses of procedure, or methods

of review are applicable to any proceedings conducted after the adoption of such laws.” Id.

at paragraph one of the syllabus.

{¶ 56} In Kilbane, the court considered amendments to a workers’ compensation

statute regarding claim settlement hearings that applied to all pending claims for

compensation with certain exceptions. The new statute removed the provision for

commission hearings on applications for settlement approval. The former statute also

permitted claimants to apply independently for the commission approval, whereas the

new statute required the employer’s signed assent to the application and a settlement

agreement as a prerequisite. The court found that the former settlement hearing

provisions represented a “course of procedure” in that “[t]hey existed as part of the process

by which Kilbane, upon qualifying for compensation, enforced her right to receive it.”

Kilbane, 91 Ohio St.3d at 260. Therefore, the court held that “those provisions were

remedial in nature and may be changed or revoked by the legislature without offending

the Constitution” because although “entitlement to workers’ compensation, being a

No. 22AP-264 25

substantive right, is measured by the statutes in force on the date of her injury, * * * the

same is not true for laws affecting only the enforcement of that right.” Id. at 259-60.

{¶ 57} Outside of the workers’ compensation context, the court in Ackison

considered legislation that added certain threshold requirements to asbestos claims.

Under the legislation, a party seeking to bring such claim was required to file with the court

certain qualifying medical evidence of physical impairment, with such evidence being

supported by the written opinion of a competent medical authority stating the claimant’s

exposure to asbestos was a substantial contributing factor to the medical condition. A

claimant’s failure to file the required preliminary evidence and medical opinion resulted

in the claim being dismissed without prejudice, enabling refiling when the threshold

requirements were met. The legislation provided that the threshold requirements and

dismissal provision applied to all asbestos cases pending in Ohio courts, regardless of

whether they were filed before or after the effective date of the legislation. The trial court

applied the legislation to dismiss Ackison’s asbestos claims, but the court of appeals

reversed, holding that because Ackison’s suit had been filed before the effective date of the

statutory changes, she had a vested substantive right to pursue recovery for her husband’s

illness and death under the statutory scheme in effect at the time she filed her complaint.

{¶ 58} The Supreme Court of Ohio disagreed, stating the amended statutes were

procedural, not substantive because they “ ‘do not relate to the rights and duties that give

rise to this cause of action or otherwise make it more difficult for a claimant to succeed on

the merits of a claim’ ” but instead “ ‘pertain to the machinery for carrying on a suit.’ ”

Ackison, 2008-Ohio-5243, at ¶ 16, quoting Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455,

2007-Ohio-5248, ¶ 17. The court recognized that the amended statutes “establish[ed] ‘a

procedural prioritization’ of asbestos-related cases” by “ ‘prioritiz[ing] the administration

and resolution of a cause of action that already exists.’ ” Id. at ¶ 17, quoting Norfolk at ¶ 16.

The court concluded that the statutes placed “ ‘[n]o new substantive burdens’ ” on

claimants, but “ ‘merely substitute[d] a new or more appropriate remedy for the

enforcement of an existing right.’ ” Id., quoting State v. Cook, 83 Ohio St.3d at 411.

{¶ 59} As the foregoing recitation of cases demonstrates, the “readily

distinguishable contours” between substantive and remedial laws oftentimes become

blurred when the laws in question appear to contain both substantive and procedural

No. 22AP-264 26

characteristics. Van Fossen at paragraph three of the syllabus. Here, relator argues the

retroactive application of R.C. 4123.58(G) is substantive and not remedial though without

providing specific reasons for such conclusion. The commission argues R.C. 4123.58(G) is

remedial in nature because it does not preclude the filing of a second PTD application, but

rather merely describes how the filing and processing is to occur for all second PTD

applications. In order to distinguish whether the statute at issue in this matter is

substantive or remedial, it is necessary to understand the differences between the state of

the law before and after H.B. 75.

{¶ 60} Prior to H.B. 75, the Supreme Court of Ohio held that “a showing of new and

changed circumstances is not ‘a prerequisite to commission consideration of a subsequent

application for permanent total disability compensation after an initial denial.’ ” State ex

rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 86 (1997), quoting State ex rel.

Youghiogheny & Ohio Coal Co. v. Indus. Comm., 65 Ohio St. 3d 351, 352-53 (1992). See

State ex rel. Pactive Corp./Tenneco Packaging v. Harvey, 10th Dist. No. 03AP-1272,

2004-Ohio-5158, ¶ 5. Notably, in Youghiogheny, the claimant’s second application for

PTD compensation was granted even though it was filed a mere four weeks after the

commission denied his first application.

{¶ 61} Under the new law, following a final order of the commission denying a prior

application for PTD, a claimant must “present evidence of new and changed circumstances

before the industrial commission may consider a subsequent application.” (Emphasis

added.) R.C. 4123.58(G). The phrase “new and changed circumstances” is not defined

under the statute. However, this concept is not new to the law of workers’ compensation,

having application with regard to the commission’s exercise of continuing jurisdiction

under R.C. 4123.52 and claims for an increase in percentage of permanent partial disability

(“PPD”) under R.C. 4123.57(A).

{¶ 62} Pursuant to R.C. 4123.52, the commission has continuing jurisdiction over

each case and, subject to certain temporal limitations, it “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). Despite this “broad statutory language,” the Supreme Court of

Ohio has construed R.C. 4123.52 to limit the commission’s continuing jurisdiction, holding

that “the prerequisites for its exercise are (1) new and changed circumstances, (2) fraud,

No. 22AP-264 27

(3) clear mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal,”

despite the absence of statutory language to that effect. State ex rel. Knapp v. Indus.

Comm., 134 Ohio St.3d 134, 2012-Ohio-5379, ¶ 13, citing State ex rel. Nicholls v. Indus.

Comm., 81 Ohio St.3d 454, 458-59 (1998), citing State ex rel. Cuyahoga Hts. Local School

Dist. Bd. of Edn. v. Johnston, 58 Ohio St.2d 132 (1979). See State ex rel. Griffey v. Indus.

Comm., 125 Ohio St. 27, 31 (1932) (stating that G.C. 1465-86, which allowed the

commission to “ ‘from time to time make such modification or change with respect to

former findings or orders with respect thereto, as, in its opinion may be justified’ * * *

could not have been intended to take away all finality to the orders and findings of the

commission”). Similar to R.C. 4123.52, applications for an increase in PPD must be

“supported by substantial evidence of new and changed circumstances developing since

the time of the hearing on the original or last determination.” R.C. 4123.57(A).

{¶ 63} Given the inherently factual nature of the determination, the parameters of

what type and quantity of evidence is sufficient to establish “new and changed

circumstances” have not been precisely defined. Instead, the commission and courts have

examined this on a case-by-case basis, developing some guiding principles along the way.

See State ex rel. Ross v. Indus. Comm., 118 Ohio St.3d 73, 2008-Ohio-1739, ¶ 17 (stating

that “the mere submission of new evidence is not automatically a new and changed

circumstance”); State ex rel. Keith v. Indus. Comm., 62 Ohio St.3d 139, 141-42 (1991)

(finding that establishing new and changed circumstances entails demonstrating that

“conditions have changed subsequent to the initial award,” and not simply evidence which

was “newly acquired”); State ex rel. Gen. Motors Corp., Chevrolet Motor Div. v. Indus.

Comm., 54 Ohio St.2d 333, 334 (1978) (holding that “a medical report or reports

concluding percentage increases, beyond percentages previously reported in connection

with the original claim, is not an improper consideration under R. C. 4123.57(B) of ‘new

and changed circumstances developing since the time of the hearing on the original or last

determination’ ”); State ex rel. Akron Paint & Varnish, Inc. v. Gullotta, 131 Ohio St.3d 231,

2012-Ohio-542, ¶ 17 (stating that “the worsening of an existing medical condition or a

newly allowed medical condition often serves as new and changed circumstances justifying

the exercise of continuing jurisdiction to modify a previous order”); Knapp, 2012-Ohio-

5379, at ¶ 17 (applying a previously effective industrial commission resolution pertaining

No. 22AP-264 28

to the exercise of continuing jurisdiction pursuant to R.C. 4123.52 to find that “[n]ew and

changed circumstances means ‘there exists newly discovered evidence’ ”); State ex rel.

Rocktenn Co. v. Long, 10th Dist. No. 12AP-862, 2013-Ohio-5296, ¶ 8.

{¶ 64} Review of R.C. 4123.58(G) reveals that it is remedial, not substantive

because it is concerned with “the methods and procedure by which rights are recognized,

protected and enforced, not with the rights themselves.” Weil, 139 Ohio St. at 205. First,

R.C. 4123.58(G) does not foreclose a claimant’s ability to make a subsequent application

for PTD after the failure of a prior application. Instead, similar to the prima facie filing

requirements considered in Ackison, it adds a procedural component requiring a claimant

to make an initial showing sufficient to permit consideration of the PTD application.

Importantly, this preliminary determination of new and changed circumstances occurs

before the commission is permitted to consider the merits of the application and does not

change the analysis of the merits of the PTD application.

{¶ 65} In this way, and perhaps most importantly with regard to retroactivity,

R.C. 4123.58 does not change the burden, nature, or quantum of proof needed to establish

entitlement to PTD compensation. The burden remains on the applicant to prove

permanent total disability by establishing under a preponderance of the evidence that the

disability is permanent and that the inability to work is causally related to the allowed

conditions. Ohio Adm.Code 4121-3-34(D)(3)(a); Sheppard, 2014-Ohio-1904, at ¶ 16. The

pertinent inquiry remains the same—whether the applicant engages in or is medically

capable of sustained remunerative employment. Compare Hearing v. Wylie, 173 Ohio St.

221 (1962), paragraph two of the syllabus (holding that the alteration of the definition of

“injury” by an amendment, which applied to claims pending at the time the amendment

became effective, was unconstitutionally retroactive because a worker’s right “to

compensation for an injury is a substantive right, and a change by the General Assembly

in the statutory definition of ‘injury’ theretofore not compensable is a change in a

substantive right”); Van Fossen, 36 Ohio St.3d at 108-09.

{¶ 66} Rather than taking away or impairing a substantive right to PTD

compensation, R.C. 4123.58(G) creates a procedure or mechanism for enforcement of that

right by which subsequent PTD applications are to be adjudicated following the denial of

an initial application. Thus, the requirement under R.C. 4123.58(G) to demonstrate new

No. 22AP-264 29

and changed circumstances “ ‘do[es] not relate to the rights and duties that give rise to this

cause of action or otherwise make it more difficult for a claimant to succeed on the merits

of a claim’ ” for PTD compensation but instead “ ‘pertain[s] to the machinery for carrying

on a suit’ ” by regulating secondary conduct. Ackison, 2008-Ohio-5243, at ¶ 16, quoting

Norfolk, 2007-Ohio-5248, at ¶ 17. See Holdridge, 11 Ohio St.2d at 178 (stating that because

the “prima facie proof factor concerned only the manner of arriving at a fact conclusion,

upon which the substantive law would operate, it was itself procedural or remedial rather

than substantive”); Romans, 2003-Ohio-5363, at ¶ 20 (finding that amendment altering

time limitations with respect to the continuing jurisdiction of the commission under R.C.

4123.52 was remedial because the alteration “did not alter claimants’ already established

right to participate” but instead fashioned a more appropriate remedy for the enforcement

of that right); Longbottom v. Mercy Hosp. Clermont, 137 Ohio St.3d 103, 2013-Ohio-

4068, ¶ 26; Morgan v. W. Elec. Co., 69 Ohio St.2d 278, 281 (1982), fn. 5; Kilbane, 91 Ohio

St.3d at 259-60.

{¶ 67} Based on the foregoing, the magistrate concludes the application of

R.C. 4123.58(G) to pending claims does not violate the constitutional prohibition on

retroactive laws. Therefore, it was not error for the commission to apply R.C. 4123.58(G)

to relator’s claim as it was pending when the statutory provision became effective on

September 28, 2021.

D. Whether the Requirements of R.C. 4123.58(G) Were Met

{¶ 68} Having found R.C. 4123.58(G) is not unconstitutionally retroactive, the

remaining question is whether the SHO erred in concluding relator failed to meet his

burden under the statute of presenting evidence of new and changed circumstances to

enable the commission to consider the application. Relator argues his allowed condition

of major depressive disorder has regressed to a point that prevents him from performing

any sustained remunerative employment. In support of this argument, relator points to

the difference in assessed impairment and restrictions between the report of Dr. Jones in

support of the initial PTD application and the reports of Drs. DiMarzio and Pecorelli in the

subsequent years.

No. 22AP-264 30

{¶ 69} The commission is “exclusively responsible for assessing the weight and

credibility of evidence.” State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-

Ohio-6036, ¶ 11, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987).

Given the commission’s role as the exclusive factfinder, this court “cannot second guess

the commission’s judgments either as to witness credibility or on the proper weight to

accord particular evidence.” State ex rel. Welsh Ents., Inc. v. Indus. Comm., 10th Dist. No.

19AP-127, 2020-Ohio-2801, ¶ 26. In reviewing a decision of the commission regarding

new and changed circumstances, a relator has the burden of showing the commission

abused its discretion by entering an order not supported by any evidence in the record.

Akron Paint, 2012-Ohio-542, at ¶ 11 (finding commission abused its discretion in

determining there existed evidence to support a finding of new and changed circumstances

to exercise continuing jurisdiction under R.C. 4123.52). Furthermore, the commission is

required to “specifically state what evidence has been relied upon, and briefly explain the

reasoning for its decision.” State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991),

paragraph one of the syllabus. See State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio

St.3d 481, 484 (1983).

{¶ 70} Prior to the adjudication of the first application for PTD compensation,

relator was examined by Drs. DiMarzio and Jones with regard to the allowed psychological

condition of major depressive disorder, single episode. In the 2018 report that was

submitted in support of the first PTD application, Dr. DiMarzio found a 25 percent

disability due to the allowed psychiatric condition alone. Dr. DiMarzio concluded relator

was permanently and totally disabled from any and all forms of remunerative

employment. At the request of the commission, Dr. Jones examined relator in 2019. Dr.

Jones opined that relator’s allowed psychological condition had reached MMI and resulted

in a three percent whole person impairment. Dr. Jones stated that relator was

“functioning fairly well from a psychological standpoint,” and concluded relator would be

capable of working. (Stip. at 32.)

{¶ 71} In the 2020 order denying relator’s first PTD application, the SHO stated

that the order was “based upon the narrative report from the state’s orthopedic physician

Gary Greenspan, M.D., and state examining psychologist Lynn Luna-Jones, Ph.D.” (Stip.

No. 22AP-264 31

at 38.) With regard to relator’s allowed psychological condition, the SHO made the

following findings:

Dr. Jones who examined [relator] on behalf of the Industrial

Commission strictly regarding [relator’s] psychiatric

condition only, indicated that [relator’s] condition has also

reached maximum medical improvement, and that he can

return to his former position of employment without any

restrictions at all. She further indicated that [relator] has a

three percent permanent partial impairment with respect to

her [sic] whole person as it relates to [relator’s] psychiatric

condition currently recognized in [relator’s] sole industrial

injury.

(Stip. at 38.) The SHO made the following conclusions:

Therefore, based upon the opinions of Dr. Greenspan and

Dr. Jones who combined have examined [relator] on all of the

allowed conditions for which [relator’s] sole industrial injury

is recognized, the [SHO] concludes on a whole that [relator] is

medically capable of performing some sustained remunerative

employment ie sedentary work.

***

Therefore, based upon the limited physical and psychological

restrictions as indicated by Dr. Jones and Dr. Greenspan who

both indicate on a whole that [relator] can perform sedentary

work coupled with [relator’s] young age, high school

education and work history in various settings, the [SHO]

finds that [relator] is not precluded from engaging [in]

sustained remunerative employment, and is therefore not

permanently and totally disabled.

(Stip. at 39-40.) The SHO did not rely on or otherwise mention the report of Dr. DiMarzio.

{¶ 72} For purposes of the second PTD application, relator was again examined by

Dr. DiMarzio in addition to an exam conducted by Dr. Pecorelli. Dr. DiMarzio found in the

2020 report that relator had a disability of approximately 30 percent based solely on the

allowed psychiatric condition. Dr. DiMarzio stated that relator’s “[d]epressive symptoms

are still within severe ranges, despite psychiatric and psychological interventions,” and

noted that relator “has had psychotherapy, and has not made significant improvement.”

(Stip. at 51.) Dr. DiMarzio again concluded that relator was permanently and totally

disabled from any and all forms of remunerative employment. Dr. Pecorelli, who examined

relator at the request of the commission, found in a 2021 report that relator’s allowed

No. 22AP-264 32

psychological condition had reached MMI and resulted in a 35 percent whole person

impairment. Dr. Pecorelli found that relator “continues to experience moderately severe

emotional distress characterized as a Major Depressive Disorder, Single Episode that

interfere with his mental and behavioral capacities.” (Stip. at 74.) Dr. Pecorelli stated that

relator “may likely have difficulty being aware of the normal hazards in the work

environment and maintaining safety awareness.” (Stip. at 74.) In conclusion, Dr. Pecorelli

found that “[t]he residual symptoms associated with the allowed psychological conditions

would interfere with and prevent a successful return to gainful employment” and indicated

in the occupational activity assessment that relator was incapable of work. (Stip. at 74.)

{¶ 73} The SHO made the following findings in support of the determination that

relator failed to present evidence of new and changed circumstances in order to permit

consideration of the second PTD application:

The Staff Hearing Officer finds that the Injured Worker has

failed to present evidence of new and changed circumstances

for the Industrial Commission to consider this subsequent

Application for Permanent Total Disability Compensation

filed 06/04/2021.

The Staff Hearing Officer specifically finds that a previous

Application for Permanent Total Disability Compensation

filed 02/06/2019, was denied by way of the Staff Hearing

Officer order issued 01/18/2020.

***

The Staff Hearing Officer finds that there is insufficient

evidence of new and changed circumstances, prior to the

06/04/2021 filing of this Application for Permanent Total

Disability Compensation to permit the Industrial Commission

to consider this subsequent Application.

This decision is based on a review of the Staff Hearing Officer

order issued 01/18/2020, and a review of the State claim file.

This order is being placed pursuant to R.C. 4123.58(G).

All of the evidence was reviewed and considered in rendering

this decision.

(Stip. at 79-80.)

{¶ 74} Here, the SHO does not briefly explain the basis for the determination that

relator failed to demonstrate new and changed circumstances with reference to the

No. 22AP-264 33

evidence in the record. Following the denial of relator’s initial application for PTD

compensation, Drs. DiMarzio, Hartwig, Gliner, and Pecorelli issued reports regarding

relator’s condition. The SHO does not specifically mention any medical reports that were

relied upon in reaching its conclusion, but rather makes a boilerplate statement regarding

a review of the entire claim file and all of the evidence.

{¶ 75} Most problematically, the SHO does not explain the difference in

percentages of disability between the 2019 report of Dr. Jones, the only psychological

report relied upon in the order denying relator’s first application for PTD compensation,

and the percentages found in the 2020 report of Dr. DiMarzio and the 2021 report of

Dr. Pecorelli, which were available for consideration with respect to relator’s second PTD

application. Again, Dr. Jones, who served as the commission’s psychological examiner for

the first PTD application, found a 3 percent impairment and concluded relator was capable

of working. Dr. DiMarzio found relator had a 30 percent impairment, an increase of 5

percent from Dr. DiMarzio’s 2018 report and 27 percent higher than the conclusion of

Dr. Jones. Dr. Pecorelli, the commission’s examiner for the allowed psychological

condition in the second PTD application, found that relator had a 35 percent impairment,

an increase of 32 percent from Dr. Jones. Both Drs. DiMarzio and Pecorelli concluded

relator was incapable of work. Although the SHO references the order denying relator’s

initial PTD application, the SHO does not explain how that order’s reliance on the report

of Dr. Jones alone for relator’s allowed psychological condition relates to the evidence

submitted in support of the second PTD application.

{¶ 76} As previously noted, findings of percentage increases in medical reports may

serve as a proper consideration for finding new and changed circumstances. Gen. Motors,

54 Ohio St.2d at 334. Furthermore, “the worsening of an existing medical condition or a

newly allowed medical condition” can support a finding of new and changed

circumstances. Akron Paint, 2012-Ohio-542, at ¶ 17. In the absence of sufficient reasoning

from the commission with reference to the evidence in the record, it is exceedingly difficult

to determine whether there exists some evidence to support the conclusion that was

reached. As this court has previously stated, “where the evidence cited by the commission

suggests a different result than the conclusion announced by the commission, the

commission’s reasoning is critical.” State ex rel. Shipley v. Ludowici-Celadon, 10th Dist.

No. 22AP-264 34

No. 05AP-1172, 2006-Ohio-6893, ¶ 4. See State ex rel. Campbell v. Conrad, 10th Dist. No.

01AP-1158, 2002-Ohio-2773, ¶ 47 (stating that “the DHO found that no new and changed

circumstances were established, but he failed to provide any reasoning for this finding that

connects to the evidence of record”). Therefore, the circumstances present in this case

warrant granting a limited writ of mandamus ordering the commission to (1) specifically

state the evidence the commission relied on in reaching its decision and (2) briefly explain

the reasoning for the commission’s decision. See State ex rel. Cline v. Abke Trucking, Inc.,

137 Ohio St.3d 557, 2013-Ohio-5159, ¶ 18 (issuing a limited writ of mandamus returning

the matter to the commission to issue a new order that specifically states the evidence

relied upon and briefly explains its reasoning); State ex rel. Merritt v. Indus. Comm., 161

Ohio St.3d 380, 2020-Ohio-4379, ¶ 6.

E. Conclusion

{¶ 77} Accordingly, it is the decision and recommendation of the magistrate that a

limited writ of mandamus should be granted returning the matter to the commission to

issue a new order that (1) specifically states the evidence the commission relied on in

reaching its decision and (2) briefly explains the reasoning for the commission’s decision.

/S/ MAGISTRATE

JOSEPH E. WENGER IV

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.