State ex rel. Parrish v. Walter Randolph & Carl Fritschi

[Cite as State ex rel. Parrish v. Walter Randolph & Carl Fritschi, 2024-Ohio-1135.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Jeffrey A. Parrish, :

Relator, : No. 22AP-134

v. : (REGULAR CALENDAR)

Walter Randolph & Carl Fritschi et al., :

Respondents. :

D E C I S I O N

Rendered on March 26, 2024

On brief: Clements, Taylor, Butkovich & Cohen, LPA, Co.,

and Joseph A. Butkovich, for relator.

On brief: Dave Yost, Attorney General, and Anna Isupova,

for respondent Industrial Commission.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE’S DECISION

LUPER SCHUSTER, J.

{¶ 1} Relator, Jeffrey A. Parrish, initiated this original action requesting this court

issue a writ of mandamus ordering respondent, Industrial Commission of Ohio

(“commission”) to grant Parrish’s application for permanent total disability (“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 Parrish did not satisfy his burden under R.C. 4123.58(G) of presenting

evidence of new and changed circumstances to enable the commission to consider the

No. 22AP-134 2

application for PTD. Thus, the magistrate recommends this court deny Parrish’s request

for a writ of mandamus.

{¶ 3} Parrish 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).

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

Parrish objects to the magistrate’s conclusion that Parrish does not establish a clear legal

right to the relief requested. More specifically, Parrish objects to the magistrate’s

determinations that: (1) R.C. 4123.58(G) is not unconstitutionally retroactive, (2) Parrish

failed to present evidence of new and changed circumstances under R.C. 4123.58(G), and

(3) Parrish’s reliance on State ex rel. Gay v. Mihm, 68 Ohio St.3d 315 (1994), and State ex

rel. Stephenson v. Indus. Comm. of Ohio, 31 Ohio St.3d 167 (1987), is misplaced.

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

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

in October 1989, and he had three surgical procedures to treat his allowed conditions in

October 1989, March 1991, and July 2001. Parrish last received temporary total disability

(“TTD”) compensation in 2002. Parrish first applied for PTD compensation in August

2003, and the commission denied his application, finding Parrish was capable of

performing sedentary employment. Parrish filed a second application for PTD

compensation on November 3, 2006, and the commission again denied the application,

finding Parrish was capable of performing sedentary work with restrictions. In its denial

of the second PTD application, the commission specifically noted Parrish did not present

any change in vocational factors between the two PTD applications.

{¶ 5} Most recently, Parrish filed his third application for PTD compensation on

March 24, 2021. In an order mailed November 9, 2021, the staff hearing officer (“SHO”)

found Parrish had not submitted evidence of new and changed circumstances to warrant

adjudication of another PTD application and, accordingly, denied Parrish’s application.

Parrish filed a motion requesting reconsideration of that decision, and the commission

denied his request. This instant mandamus action followed.

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

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

No. 22AP-134 3

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

to a writ of mandamus exists where the relator shows that 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. of Ohio, 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 his first objection, Parrish argues the magistrate erred in finding R.C.

4123.58(G) is not unconstitutionally retroactive. 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, Parrish does not object to the magistrate’s determination

that the General Assembly expressly made R.C. 4123.58(G) retroactive. Through his

objection, Parrish disagrees with the magistrate’s determination that R.C. 4123.58(G) is

remedial rather than substantive and, thus, applies to all pending claims before the

commission.

{¶ 8} 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

No. 22AP-134 4

the same injury or occupational disease identified in the

previous application.

Parrish asserts the requirement in R.C. 4123.58(G) that an applicant demonstrate new and

changed circumstances, and imposes a new burden on applicants, like Parrish, whose

claims were pending before the effective date of R.C. 4123.58(G) and therefore must be

considered a substantive change.

{¶ 9} We agree with the magistrate’s conclusion that R.C. 4123.58(G) is remedial,

not substantive, and therefore is not unconstitutionally retroactive for claims pending on

the effective date of the statute. Importantly, we agree with the magistrate’s analysis that

the requirement in R.C. 4123.58(G) that an applicant demonstrate new and changed

circumstances on subsequent PTD applications is a procedural component requiring only

that the claimant make an initial showing sufficient for the commission to consider the

subsequent PTD application. The statute does not foreclose a claimant’s ability to make a

subsequent application for PTD, impact the analysis of the merits of the PTD application,

or change the burden, nature, or quantum of proof a claimant must demonstrate to be

entitled to PTD compensation. Thus, contrary to Parrish’s argument, the new and changed

circumstances threshold in R.C. 4123.58(G) does not take away or impair a claimant’s

substantive right to PTD compensation. Instead, as the magistrate explained, the

requirement in R.C. 4123.58(G) that a claimant demonstrate new or changed

circumstances creates a procedural mechanism for the commission’s adjudication of

subsequent PTD applications filed after the commission’s denial of an initial application

for PTD. Because the magistrate correctly determined that R.C. 4123.58(G) is remedial,

not substantive, the magistrate did not err in finding the statute is not unconstitutionally

retroactive. Thus, we overrule Parrish’s first objection to the magistrate’s decision.

{¶ 10} Through his second objection to the magistrate’s decision, Parrish argues

that even if R.C. 4123.58(G) can be retroactively applied to his third PTD application, the

magistrate nonetheless erred in finding he failed to present evidence of new and changed

circumstances. Parrish argues the commission failed to address the medical evidence from

Dr. J.L. Mattson Murdock before concluding that Parrish failed to establish new and

changed circumstances in order for the commission to hear his new application for PTD.

We disagree.

No. 22AP-134 5

{¶ 11} In the SHO’s order finding Parrish failed to present evidence of new and

changed circumstances, the SHO specifically found “the medical documentation in the

[commission’s] claim contemporaneous to the Injured Worker’s limited work in 2019 and

2020 does not corroborate the Injured Worker’s allegations of excessive pain when doing

these temporary positions of employment.” (Nov. 4, 2021 SHO Order at 3.) Further, the

SHO expressly mentioned the medical documentation from Dr. Murdock, noting the

doctor’s note from November 9, 2020 stated Parrish “is not having a flare-up at this time.”

(SHO Order at 3.) From this evidence, the SHO concluded the medical documentation

from this time period did not indicate Parrish was having an exacerbation of his medical

conditions due to his work or undergoing any significant medical treatments, and instead

found Parrish’s limited medical treatment during this time to be “essentially maintenance

only.” (SHO Order at 3.) Though Parrish disagrees with the weight the commission

afforded this evidence, it is not the role of this court to reweigh the evidence before the

commission. State ex rel. Casey v. Indus. Comm. of Ohio, 10th Dist. No. 20AP-247, 2022-

Ohio-532, ¶ 21 (this court cannot second-guess the commission’s determinations of

witness credibility or the proper weight to accord particular evidence), citing State ex rel.

Welsh Ents., Inc. v. Indus. Comm. of Ohio, 10th Dist. No. 19AP-127, 2020-Ohio-2801,

¶ 26. Having reviewed the record, we find the commission did not abuse its discretion in

determining Parrish failed to present evidence of new and changed circumstances to

permit the commission to hear the merits of his third PTD application. Therefore, we

overrule Parrish’s second objection to the magistrate’s decision.

{¶ 12} Lastly, under his third objection to the magistrate’s decision, Parrish argues

the commission erred when it failed to determine he was entitled to relief under Gay and

Stephenson. Parrish’s argument under his third objection goes to the merits of his PTD

application. However, having already determined in our resolution of Parrish’s second

objection to the magistrate’s decision that the magistrate did not err in finding the

commission did not abuse its discretion in concluding Parrish failed to present sufficient

evidence of new and changed circumstances, R.C. 4123.58(G) precludes consideration of

the merits of Parrish’s third application for PTD compensation. Thus, the magistrate did

not err in determining this court could not reach the merits of Parrish’s third PTD

No. 22AP-134 6

application. We, therefore, overrule Parrish’s third and final objection to the magistrate’s

decision.

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

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

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

we overrule Parrish’s objections to the magistrate’s decision, and we deny Parrish’s request

for a writ of mandamus.

Objections overruled;

writ of mandamus denied.

DORRIAN and JAMISON, JJ., concur.

No. 22AP-134 7

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Jeffrey A. Parrish, :

Relator, :

v. : No. 22AP-134

Walter Randolph & Carl Fritschi et al., : (REGULAR CALENDAR)

Respondents. :

___________________________________________

MAGISTRATE’S DECISION

Rendered on August 18, 2023

Clements, Taylor, Butkovich & Cohen, LPA, Co., and

Joseph A. Butkovich, for relator.

Dave Yost, Attorney General, and Anna Isupova, for

respondent Industrial Commission.

____

IN MANDAMUS

{¶ 14} Relator, Jeffrey A. Parrish, seeks a writ of mandamus ordering respondent

Industrial Commission of Ohio (“commission”) to grant relator’s application for

permanent total disability (“PTD”) compensation.

I. Findings of Fact

{¶ 15} 1. On October 13, 1989, relator sustained an injury arising out of his

employment with respondent Walter Randolph & Carl Fritschi (“employer”). While relator

was doing demolition work on a bridge, the bridge collapsed, causing relator to sustain

serious injuries.

No. 22AP-134 8

{¶ 16} 2. Relator’s workers’ compensation claim was allowed for the following

conditions: “fracture left leg; below knee amputation left leg; injury to elbow; fractured

spine; laceration head; osteoarthritis of the right wrist; fibular overgrowth of left below the

knee amputation; major depressive disorder; carpal tunnel syndrome right; lesion right

median nerve; lesion right ulnar nerve.” (R. at 157.)

{¶ 17} 3. Relator had three surgical procedures to treat his allowed conditions,

undergoing surgery on October 13, 1989, March 19, 1991, and July 31, 2001. Relator last

received temporary total disability (“TTD”) compensation in 2002.

A. First Application for PTD Compensation

{¶ 18} 4. On August 19, 2003, relator filed an IC-2 application for compensation for

PTD. Relator’s application was supported by the report of Jeffrey L. Stambough, M.D.,

dated August 4, 2003, in which Dr. Stambough found relator had a high probability of

being totally and permanently disabled.

{¶ 19} 5. In an October 28, 2003 report, a vocational expert, William T. Cody, MS,

found relator to be permanently and totally occupationally disabled.

{¶ 20} 6. At the request of the commission, relator was examined by Ron M.

Koppenhoefer, M.D., on October 31, 2003. In a report issued the same day,

Dr. Koppenhoefer found relator had a 39 percent whole body impairment.

Dr. Koppenhoefer concluded that relator was capable of sedentary work with limitations

regarding repetitive movement of the right wrist and repetitive gripping and grasping

activities.

{¶ 21} 7. Donald J. Tosi, Ph.D., conducted a psychological evaluation of relator at

the request of the commission on October 31, 2003. In a report dated November 5, 2003,

Dr. Tosi found relator had reached maximum medical improvement (“MMI”), had a 20

percent whole person impairment, and would be able to return to the former position of

employment based solely on the allowed psychological claim.

{¶ 22} 8. On March 18, 2004, a commission staff hearing officer (“SHO”) heard the

issue of relator’s August 19, 2003 IC-2 application for PTD compensation. In an order

mailed March 20, 2004, the SHO denied the IC-2 application. The SHO, relying on the

opinion of Dr. Koppenhoefer, found relator was capable of performing sedentary

employment with the limitations set forth by Dr. Koppenhoefer. The SHO also found

No. 22AP-134 9

relator’s allowed psychological condition did not prevent him from performing any

employment he was otherwise qualified to perform. The SHO noted that relator’s age was

an asset that would enable him to adapt to a new work environment, but his education was

a limitation that would prevent him from performing occupations involving clerical duties.

B. Second Application for PTD Compensation

{¶ 23} 9. David P. Schwartz, Ph.D., stated in a report dated October 5, 2006 that he

was treating relator for depressive psychosis resulting from the industrial injury.

Dr. Schwartz opined that the combination of relator’s multiple severe difficulties

combined to produce permanent and total disability from all sustained remunerative

employment.

{¶ 24} 10. In an October 19, 2006 report, Philip M. Goldman, M.D., stated that

relator was permanently and totally disabled from being gainfully employed.

{¶ 25} 11. Relator filed a second IC-2 application for PTD compensation on

November 3, 2006.

{¶ 26} 12. Following a psychological examination performed on March 23, 2007 at

the request of the commission, Michael T. Farrell, Ph.D. found relator had a 20 percent

whole body impairment due to the allowed psychological condition. Dr. Farrell found

relator’s allowed psychological condition did not prevent him from resuming previous

employment activities.

{¶ 27} 13. Based on a March 23, 2007 evaluation at the request of the commission,

Andrew Freeman, M.D., found relator had a 47 percent whole person impairment and was

capable of sedentary work with a restriction on use of left foot controls and repetitive use

of right hand.

{¶ 28} 14. Vocational expert Cody again found in a June 20, 2007 report that relator

was permanently and totally occupationally disabled.

{¶ 29} 15. On June 20, 2008, a commission SHO heard the issue of relator’s

November 3, 2006 IC-2 application for PTD compensation. In an order mailed June 28,

2008, the SHO denied the IC-2 application. The SHO found that relator was unable to

return to his former position of employment as a result of the allowed conditions in the

claim based on the reports of Drs. Goldman, Schwartz, Farrell, and Freeman. Based on the

reports of Drs. Farrell and Freeman, however, the SHO found relator was capable of

No. 22AP-134 10

performing sedentary work within the restrictions identified by those doctors. Regarding

changes since the prior application for PTD compensation, the SHO stated the following:

The [SHO] spent considerable time at today’s hearing

inquiring of the injured worker concerning what changes have

taken place in his care and situation since the denial of his

application on 03/18/2004. A review of the file finds no

amendments to the claim nor further surgeries. The last

surgery undertaken in the claim was on 07/31/2001. The

injured worker last worked on 04/26/2001. The injured

worker confirmed by his testimony that his course of medical

care over the last five years has been the same consisting of

chiropractic manipulation, medications, acupuncture,

massage and physical therapy. The injured worker’s testimony

in this regard is consistent with the medical reports on file

from his treating physicians. After having reviewed the injured

worker’s testimony and this medical record, the [SHO] is

persuaded that there has been essentially no change to the

injured worker’s care since the denial of his first application

for permanent and total disability compensation benefits. The

[SHO] finds that said care has been of a maintenance nature

only.

The [SHO] finds and concludes that the only change with

respect to the injured worker’s medical status as related to the

allowed conditions in the claim is that he has aged since the

denial of his last application for permanent total disability

compensation benefits.

This finding by the [SHO] is further supported by a review of

the two vocational reports submitted to his claim file by the

injured worker from William T. Cody. The injured worker has

submitted reports [from] Mr. Cody, dated 10/23/2003 and

05/18/2007. The initial report was filed in support of the

denied application for permanent and total disability

compensation benefits. The 05/18/2007 report was filed in

support of the present application. A comparative review of

both Mr. Cody’s reports finds them to be essentially the same

both in history and in their conclusions. The test results

secured by Mr. Cody are almost exactly the same. The

interview results noted by Mr. Cody in both reports are

essentially identical. The Vocational Potential analysis of Mr.

Cody in both reports is also essentially identical. The only real

changes from report to report are his references to the

different Industrial Commission examining physicians. The

[SHO] finds that Mr. Cody has not presented any change in

the vocational factors as between the two reports and since the

No. 22AP-134 11

initial denial of permanent total disability compensation

benefits.

(R. at 67.) The SHO further found relator’s age of 54 was not a barrier to his return to

employment and his education including his “documented ability to read, write and

perform basic math” were also an asset that would permit additional training or

educational activity. (R. at 67.) Therefore, the SHO concluded relator was not

permanently and totally disabled from all forms of sustained remunerative employment

as a result of the allowed conditions.

C. Third Application for PTD Compensation

{¶ 30} 16. Chris H. Modrall, Ph.D., conducted a psychological evaluation of relator

on October 22, 2010 finding that relator continued to have a 20 percent permanent partial

impairment due to the allowed psychological condition.

{¶ 31} 17. Marc W. Whitsett, M.D., found following an October 22, 2010

examination that relator had a 4 percent whole person impairment as a result of the

allowed conditions of right carpal tunnel syndrome, lesion right median nerve, and right

ulnar nerve. Considering the prior award of 22 percent permanent partial impairment, Dr.

Whitsett found relator had a 25 percent whole person impairment.

{¶ 32} 18. Based on the October 22, 2010 reports of Drs. Modrall and Whitsett,

Dr. Freeman found relator had a combined 40 percent permanent partial impairment in a

November 19, 2010 MEDCO-21 physician file review.

{¶ 33} 19. Following a January 12, 2021 examination, JL Mattson Murdock, D.C.,

provided a treatment plan for relator including acupuncture once per week for six weeks

directed to phantom limb pain and physical therapy twice per week for six weeks.

Dr. Murdock noted in the examination report that relator was complaining of phantom

limb pain and increased right wrist pain. With regard to the right wrist, Dr. Murdock noted

weakness, decreased wrist motion, and wrist pain with movement.

{¶ 34} 20. Relator filed a third IC-2 application for PTD compensation on

March 24, 2021 supported by the February 26, 2021 report of Dr. Murdock, in which

Dr. Murdock found relator was permanently and totally disabled and unable to engage in

any remunerative employment. Dr. Murdock noted relator’s extensive treatments and

procedures, and stated that relator required ongoing therapy and specialist consultations.

No. 22AP-134 12

Dr. Murdock found relator continued to experience severe pain and disability associated

with the allowed injuries. Dr. Murdock noted relator’s complaints of continued upper back

pain and phantom limb pain. With regard to relator’s right wrist, Dr. Murdock found

relator complained of ongoing pain and exhibited decreased range of motion and grip

strength.

{¶ 35} 21. Relator was next examined by Gary L. Ray, M.D., on June 30, 2021. In a

report the same day, Dr. Ray found relator had reached maximum medical improvement,

noting relator had undergone extensive treatment including medications, physical and

occupational therapy, injections, chiropractic treatment, acupuncture, and multiple

surgical procedures. Dr. Ray found relator had a 51 percent combined whole person

impairment based on the following: (1) a 12 percent whole person impairment related to

the allowed condition of fracture right wrist and osteoarthritis of the right wrist; (2) a 12

percent whole person impairment because of a decrease in range of motion at the right

wrist; (3) a 1 percent whole person impairment due to a decrease in range of motion at the

right elbow; (4) a 28 percent whole person impairment related to the allowed conditions

of below the knee amputation left leg and fibular overgrowth of the left knee below the

knee amputation; (5) a 6 percent whole person impairment related to the allowed

condition of fractured spine; (6) a 1 percent whole person impairment related to the

allowed condition of laceration of head; (7) an 8 percent whole person impairment related

to the allowed conditions of carpal tunnel syndrome right and lesion right median nerve;

and (8) an 8 percent whole person impairment related to the allowed condition of lesion

right ulnar nerve. With regard to relator’s residual functional capacity, Dr. Ray opined that

relator was capable of sedentary work with further limitations of no repetitive use of the

right hand.

{¶ 36} 22. Stephen W. Halmi, Psy.D., conducted an independent psychological

examination of relator on July 1, 2021. Dr. Halmi found relator had reached MMI with

regard to the allowed psychological condition. Dr. Halmi noted relator was diagnosed with

major depressive disorder in 2001, but according to relator, his depression began after his

injury in the industrial accident. Relator had participated in individual psychological

therapy and had been prescribed psychiatric medication in the past. Relator continued to

experience symptoms of depression due to his inability to do things resulting from his

No. 22AP-134 13

amputation and chronic pain. Dr. Halmi opined there was no evidence relator’s depression

had improved despite mental health treatment, stating that relator “reported experiencing

the same depressive symptoms that he reported to [other doctors] years ago.” (R. at 143.)

Dr. Halmi found relator had a 21 percent whole person impairment due to the allowed

psychological condition. With regard to relator’s residual mental and behavior capacity

resulting from the impairment associated with the allowed condition, Dr. Halmi opined

relator was capable of work with some limitations, stating:

It is my opinion that [relator] could not work in an

environment that required quick pace and high volume

production. I opine that he would have to work at a job that he

already knew how to perform. He would have difficulty

learning new tasks. If it was a task that he did not know how

to perform, the task would have to be simple and repetitive.

Given his concentration problems, it is also my opinion that

he would be unable to work with dangerous equipment (i.e.,

saws, other power tools, etc.).

(R. at 144-45.) In the occupational activity assessment based on mental and behavioral

examination form, Dr. Halmi noted the following limitations: (1) low stress job,

(2) simple one and two step job, (3) not working with dangerous tools, (4) low volume

workload, and (5) slow pace environment.

{¶ 37} 23. Relator was next examined by Kenneth J. Manges, Ph.D., on

September 13, 2021. In a report dated September 17, 2021, Dr. Manges noted relator’s

statement that he had gone to psychological therapy for about five years after the industrial

injury, but then treatment stopped. Dr. Manges found relator had a 27 percent whole

person impairment.

{¶ 38} 24. On November 3, 2021, a commission SHO heard the issue of relator’s

March 24, 2021 IC-2 application for PTD compensation. In an order mailed November 9,

2021, the SHO, applying R.C. 4123.58(G), found relator had not submitted sufficient

evidence of new and changed circumstances to warrant adjudicating another IC-2

application for the claim. The SHO made the following findings regarding the existence of

new and changed circumstances: (1) no amendments or additional medical conditions had

been allowed in the claim since the last IC-2 was adjudicated; (2) relator had not

undergone any surgeries or substantial medical procedures since the last IC-2 was

No. 22AP-134 14

adjudicated; (3) relator had not requested any TTD compensation since 2002, leading the

SHO to find that relator’s medical conditions were “essentially stable.” (R. at 158.)

{¶ 39} The SHO examined relator’s arguments in support of the PTD application,

noting the argument raised by relator’s representative that new and changed

circumstances existed because relator had attempted to return to work for a few days in

2019 and 2020. The SHO found relator’s “limited attempt to return to work for a few days

over the course of two years is, in and of itself, not significant enough to be considered a

new and changed circumstance in this claim.” (R. at 159.) Additionally, the SHO found the

medical documentation in the claim contemporaneous to relator’s attempt to return to

work in 2019 and 2020 did not corroborate the allegations of excessive pain when

performing the temporary positions of employment. The SHO specifically noted that the

sole medical treatment in 2020 was an office visit with Dr. Murdock, who stated in his

office note that relator was not having a flare-up at the time of the visit. The SHO made the

following findings regarding relator’s medical treatment:

The [SHO] finds the medical documentation during the time

period when [relator] was performing the limited work did not

indicate [relator] was having an exacerbation of his medical

conditions due to work or undergoing any significant medical

treatments. Rather, the [SHO] finds [relator’s] limited

medical treatment during this time appears to be essentially

maintenance only.

(R. at 159.) Therefore, the SHO denied relator’s IC-2 PTD application, concluding that

relator had not submitted sufficient evidence of new and changed circumstances as

required, pursuant to R.C. 4123.58(G), to warrant adjudicating another PTD application

at that time.

{¶ 40} 25. Relator filed a C-86 motion requesting reconsideration of the

November 9, 2021 SHO decision. The commission denied relator’s request in an order

mailed December 8, 2021 on the basis that relator’s request for reconsideration failed to

meet the criteria of Industrial Commission Resolution R18-1-06.

{¶ 41} 26. On February 25, 2022, relator filed the instant action in mandamus.

No. 22AP-134 15

II. Discussion and Conclusions of Law

{¶ 42} Relator seeks a writ of mandamus ordering the commission to award relator

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

{¶ 43} 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

{¶ 44} “[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).

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

when one of the following conditions is met:

No. 22AP-134 16

(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).

{¶ 46} 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:

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”).

No. 22AP-134 17

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.

R.C. 4123.58(G).

{¶ 47} 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

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 the text of 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 third 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-134 18

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).

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

medically capable of sustained remunerative employment. Seibert 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 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”).

{¶ 49} “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., 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 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

No. 22AP-134 19

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.’ ”

(Emphasis sic.)). 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.

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

{¶ 50} Relator argues that the commission abused its discretion by imposing

evidentiary requirements not in place at the time relator’s application for PTD

compensation was filed. 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.

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

consider the appropriate standard of review. Relator argues that the commission’s

application of R.C. 4123.58(G) constituted an abuse of discretion, and the commission also

refers the abuse of discretion standard. However, 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 novo.’ ”); TWISM Ents., L.L.C. v. State Bd. of

Registration for Professional Engineers & Surveyors, 172 Ohio St.3d 225, 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.

No. 22AP-134 20

{¶ 52} 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).

{¶ 53} 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

“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).

{¶ 54} 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

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-134 21

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.”).

{¶ 55} 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.,

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. As relator’s PTD

application was filed before and remained pending when R.C. 4123.58(G) became

effective, 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.

{¶ 56} 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 at ¶ 13. “Substantive law” has been

No. 22AP-134 22

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 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 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.”).

{¶ 57} 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

No. 22AP-134 23

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 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 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

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-134 24

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.

{¶ 58} 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.

{¶ 59} 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

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, quoting former R.C. 4121.80(G)(1).

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,

No. 22AP-134 25

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.

{¶ 60} 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

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

quoting R.C. 4123.58.

{¶ 61} 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

No. 22AP-134 26

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.

{¶ 62} 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

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

{¶ 63} 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

No. 22AP-134 27

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.

{¶ 64} 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 Cook, 83 Ohio St.3d at 411.

{¶ 65} 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

characteristics. Van Fossen at paragraph 3 of the syllabus. Here, relator argues the

retroactive application of R.C. 4123.58(G) is substantive because it creates a new

evidentiary burden not in place at the time relator’s third application for PTD

compensation was filed. The commission argues R.C. 4123.58(G) is remedial in nature

because it “establishes a process that must be followed by an injured worker and, in turn,

considered by the commission, to warrant adjudicating another application for PTD

benefits.” (Comm. Brief at 14.) In support of this, the commission points to Holdridge in

arguing that the court in that case found an amendment to R.C. 4123.58 to be remedial

rather than substantive in nature. In order to distinguish whether the statute at issue in

No. 22AP-134 28

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.

{¶ 66} 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.

{¶ 67} 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).

{¶ 68} 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,

(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

No. 22AP-134 29

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).

{¶ 69} 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 at ¶ 17

(applying a previously effective industrial commission resolution pertaining 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.

{¶ 70} 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,

No. 22AP-134 30

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.

{¶ 71} 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 at 108-09.

{¶ 72} 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

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 at 178 (stating that because the “prima

facie proof factor concerned only the manner of arriving at a fact conclusion, upon which

No. 22AP-134 31

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 at 259-

60.

{¶ 73} 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

{¶ 74} 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 he presented evidence

he was employed by a temporary agency for several weeks in 2019 and 2020 and states

that he testified at the hearing that the “physical demands of the light duty jobs were not

sustainable and caused a flare-up of his pain complaints.” (Relator’s Brief at 6.) Relator

also points to Dr. Murdock’s notes following relator’s January 21, 2021 office visit,

including relator’s complaint of phantom limb pain and a loss of function, range of motion,

and grip strength in the right upper extremity.

{¶ 75} 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 fact-finder, 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.

No. 22AP-134 32

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).

{¶ 76} Relator’s arguments essentially present an invitation for this court to

reweigh the evidence. However, that is not the role of this court in an action in mandamus.

State ex rel. Casey v. Indus. Comm. of Ohio, 10th Dist. No. 20AP-247, 2022-Ohio-532,

¶ 21 (declining to reweigh the evidence where relator asserted commission erred in finding

insufficient evidence of new and changed circumstances). No transcript of the hearing

appears in the record of this matter, but the SHO’s order notes arguments concerning

relator’s work experience in 2019 and 2020. However, the SHO found the “limited attempt

to return to work for a few days over the course of two years is, in and of itself, not

significant enough to be considered a new and changed circumstance in this claim.” (R. at

159.)

{¶ 77} The SHO reviewed the prior orders denying PTD compensation and found

there were no additional medical allowances since the last application. Furthermore, the

SHO noted relator had not undergone any surgeries or substantial medical procedures in

that time and had not requested any TTD compensation since 2002, leading the SHO to

find that relator’s medical conditions were “essentially stable.” (R. at 158.) The SHO also

referred to the medical documentation in the claim file, particularly noting the periods

when relator stated he was employed and specifically mentioning medical documentation

from Dr. Murdock. The SHO found relator’s “limited medical treatment during this time

appears to be essentially maintenance only,” similar to the findings in the 2008 report in

which the SHO stated that relator’s course of medical care had been much the same over

the prior five years, consisting of chiropractic manipulation, medications, acupuncture,

massage, and physical therapy. (R. at 159.) Recognizing the commission’s role in assessing

the weight and credibility of the evidence and considering the existence of some evidence

in the record to support its conclusion, the magistrate finds it was not an abuse of

discretion to conclude relator failed to present sufficient evidence of new and changed

No. 22AP-134 33

circumstances. Therefore, having failed to demonstrate new and changed circumstances,

R.C. 4123.58(G) precluded consideration of relator’s third application for PTD

compensation.

{¶ 78} Finally, relator argues he is entitled to relief under Gay, 68 Ohio St.3d 315,

because his physical and psychological impairments, considered in conjunction with the

Stephenson factors, can only lead to the conclusion that he is permanently and totally

disabled. The commission responds that relator’s reliance on Gay is misplaced because

medical experts concluded relator was capable of work with some limitations. Pursuant to

R.C. 4123.58(G), the demonstration of new and changed circumstances is a prerequisite

to consideration of a subsequent application for PTD compensation. Without meeting this

requirement and the commission’s consideration of the merits of a PTD application in the

first instance, this court is unable to reach the merits of relator’s third PTD application.

E. Conclusion

{¶ 79} Based on the foregoing, relator has not demonstrated a clear legal right to

the requested relief or that the commission is under a clear legal duty to provide such relief.

Accordingly, it is the decision and recommendation of the magistrate that relator’s request

for a writ of mandamus should be denied.

/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.