Commission Lacks Jurisdiction to Reconsider Permanent Total Grant

Commission Lacks Jurisdiction to Reconsider Permanent Total Grant

Posted: May, 1998

State, ex rel. Nicholls v. Indus. Comm. (4/22/98), 81 Ohio St.3d 454.

Issue: Did the Commission properly grant reconsideration based on a vocational report submitted after the initial decision when that report could have been submitted before the initial hearing?

Background: Nicholls suffered a non-industrial amputation of his right arm below the elbow in 1958. He was fitted with a prosthesis. Shortly thereafter he started to work at the employer, where he worked for the next thirty-five years.

In 1989, a severe industrial injury occurred to his left shoulder. Surgery revealed a rotator cuff tear too massive to repair. Nicholls filed for permanent total.

Industrial Commission specialist Dr. S reported that Nicholls could not return to his previous work, but could do sedentary work. A vocational report submitted on behalf of Nicholls indicated he was unemployable.

On May 3, 1994 Staff Hearing Officers awarded permanent total. The employer moved for reconsideration and accompanied its motion with a vocational report from Parman & Associates (which the Ohio Supreme court says: “is disjointed and difficult to follow with conclusions difficult to pin down.”)

The Commission granted reconsideration “based on the possibility of error in the previous decision.” It then denied permanent total (2 to 1) relying on Parman’s vocational report.

A mandamus suit was filed in the Ohio Supreme Court.

Decision: Ohio Supreme Court vacates the Commission denial of permanent total and reinstates the order granting permanent total.

Court rules the Commission had no jurisdiction based on Commission Resolution R94-1-8. The Resolution permits reconsideration in three instances:

  1. unusual legal, medical or factual questions of interest to the Commission;
  2. new, previously undiscoverable evidence, or
  3. fraud.

None of these conditions exists. Fraud has never been claimed. There is no legal question regarding the non-allowed right arm amputation. Non-allowed conditions cannot be considered, but the order granting reconsideration does not suggest that the non-allowed conditions were considered.

The Parman report may have been new, but it was not “undiscoverable.” The employer could have “discovered” it months earlier. Therefore, the Commission violated its Resolution in exercising reconsideration jurisdiction.

The Court also rejects the Commission’s claim that it properly granted reconsideration because reconsideration was “in [the Commission’s] opinion justified” since “continuing jurisdiction is not unlimited.” The Court indicates that limits apply to when the Commission can exercise continuing jurisdiction and indicates that the Commission can only exercise continuing jurisdiction if there are

(1) new and changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5) error by inferior tribunal.

Because none of those situations existed in the present case, the Commission improperly exercised reconsideration.

Editor’s Comment: As a result of this decision, the Commission adopted a new resolution, 98-1-03, which revised the Commission’s guidelines for granting reconsideration. That resolution will apply to all final orders published on or after June 1, 1998.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.