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State ex rel Poneris v. Industrial Commission of Ohio11/22/2005
xercise of continuing jurisdiction when new evidence is submitted is the so-called "newly discovered evidence" rule that falls under the prerequisite identified in Nicholls as new and changed circumstances. However, if the new evidence could have been "discovered" with due diligence prior to the PTD hearing, it cannot be used as a basis for invoking the commission's continuing jurisdiction. Nicholls, at 459.
{ } There has been no claim by relator either here or before the commission that Dr. Roberts' June 25, 2004 report is newly discovered evidence. Nor does it appear from the record that relator could persuasively make such a claim.
{ } In short, relator's June 18, 2004 motion for a start date adjustment was fatally flawed on its face, having failed to claim any ground for the exercise of continuing jurisdiction over the start date previously adjudicated.
{ } Here, and before the commission, relator seems to have assumed that he is entitled to a de novo review of the PTD start date by simply filing for a start date adjustment following the commission's issuance of its final order adjudicating the PTD application. Relator is incorrect in that assumption.
{ } Given the above analysis, the explanation in the SHO's order of September 15, 2004 for denying relator's motion is largely irrelevant. Thus, relator's challenges here to the SHO's explanation for denial of the motion need not be addressed by this court. Regardless of the SHO's explanation for denial of the motion, it is clear that relator failed to present even a prima facie claim for the exercise of continuing jurisdiction over the start date previously adjudicated. Under such circumstances, relator has failed to show a clear legal right to relief in mandamus.
{ } Accordingly, it is the magistrate's decision that this court deny relator's request for a writ of mandamus.
KENNETH W. MACKE MAGISTRATE
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