R.C. 4123.52 provides the Industrial Commission has continuing jurisdiction to modify or change its former orders. Ohio courts have held the continuing jurisdiction of the Commission is limited to five circumstances:
- new and changed circumstances,
- clear mistake of fact,
- clear mistake of law, or
- error by an inferior tribunal.
Although the Commission can exercise its continuing jurisdiction under these circumstances, questions have arisen over the timing of the Commission’s exercise of its continuing jurisdiction. In other words, can the Commission exercise continuing jurisdiction any time it wants?
In State ex rel. Nietzelt v. Indus. Comm., 2020-Ohio-1453 (April 15, 2020), the Ohio Supreme Court addressed the timing element of the Commission’s continuing jurisdiction. In this case, the claimant moved the Commission to additionally allow her claim for an L4-5 disc herniation, which the Commission granted after hearings before district and staff hearing officers. Notably, the employer did not appeal the additional allowance.
Several months after the additional allowance, the claimant had surgery and the surgeon determined the claimant never had an L4-5 disc herniation. Upon learning this information, the employer moved the Commission to exercise continuing jurisdiction and disallow the claim for L4-5 disc herniation because of a mistake of fact and/or new and changed circumstances. The Commission granted the motion, disallowing the claim for L4-5 disc herniation and the claimant challenged the decision in mandamus.
The 10th District Court of Appeals agreed with the claimant and granted a writ of mandamus on the ground that the Commission’s continuing jurisdiction ceased after 60 days. The employer appealed to the Ohio Supreme Court, which reversed the court of appeals. The Supreme Court held the Commission may exercise its continuing jurisdiction when one or more of the five criteria have been met, subject to the statute of limitations in R.C. 4123.52, the rule that the filing of an appeal under R.C. 4123.512 or a mandamus action terminates the Commission’s continuing jurisdiction, and the rule that the Commission exercises its continuing jurisdiction within a reasonable amount of time based on the facts of the particular case. Because the employer had not filed an R.C. 4123.512 appeal to the additional condition and the Commission exercised continuing jurisdiction in a reasonable amount of time, the Court held the Commission’s exercise of continuing jurisdiction was timely.
Employers should remember, moving to invoke the Commission’s continuing jurisdiction is not a substitute for an appeal or mandamus action. If employers have a basis to challenge a Commission decision, they should exercise their right to appeal.