Lead Opinion
{¶ 1} Wе are asked to determine whether appellee, Industriаl Commission of Ohio, abused its discretion in refusing to start the payment of appellant Eleftherios Poneris’s permanent total disаbility compensation as of June 9, 2001. We find no abuse of discretiоn.
{¶2} Poneris first applied for permanent total disability compensation on November 6, 2000. That application was denied on May 19, 2001. Two years later, several back conditions werе additionally allowed in Poneris’s claim. Poneris then filed a new application for permanent total disability compеnsation on June 9, 2003, that was supported by the May 15, 2003 report of Dr. Mаrtin McTighe.
{¶ 3} The commission granted that motion on January 27, 2004, and backdated the commencement of permanent total disаbility compensation to May 15, 2003, based on Dr. McTighe’s report. Thе commission specifically rejected Poneris’s request tо begin compensation as of June 9, 2001, finding that the July 31, 2001 report of Dr. Jоhn Roberts — on which Poneris had relied — did not specifically indicate that Poneris was permanently and totally disabled.
{¶ 4} Apprоximately five months later, Poneris filed a motion asking that his permanent total disability start date be reset to June 9, 2001. Poneris relied оn a new report from Dr. Roberts dated June 25, 2004, that stated:
{¶ 5} “I have reviewed the medical records in regard to the above claimant. It is apparent that his back injury occurred in July, 1995. Surgery was performed by Dr. Richard Weimann in 1998. He [claimant] informed me that his temporary total disability payments stopped as of July, 1999, or aрproximately one year following the surgery performed by Dr. Weimann. Now that this individual is permanently and totally disabled it is my opinion that the starting date for that*265 level of disability should correctly be listеd as July, 1999. I offer this opinion within reasonable medical probability.”
{¶ 6} The commission denied the mоtion after concluding that (1) the issue was res judicata and (2) Dr. Roberts gave “no basis for his opinion that permanent total disability should start as of July, 1999.” Poneris then filed a complaint in mandamus in the Court of Appeals for Franklin County, asserting that the commission had abusеd its discretion in refusing to further backdate the commencemеnt of permanent total disability compensation. Affirming the cоmmission’s reasoning, the court of appeals denied the writ.
{¶ 7} This cause is now before this court on an appeal as of right.
{¶ 8} Once the commission’s January 27, 2004 order had become final, it could be reopened only through the commission’s exercise of continuing jurisdiction. That, in turn, could occur only if one of five prerequisites had been met: (1) new and changed circumstancеs, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal. State ex rel. Nicholls v. Indus. Comm. (1998),
{¶ 9} None of these prerequisites is prеsent in the case before us. The submission of Dr. Roberts’s June 25, 2004 report may have been new evidence, but it did not constitute new and сhanged circumstances. State ex rel. Keith v. Indus. Comm. (1991),
{¶ 10} The judgment of the court of appeals is affirmed.
Judgment affirmed.
Dissenting Opinion
dissents and would reverse the decision of the court of appeals and start the permanent total disability compensation as of June 9, 2001.