1. Ohio Industrial Commission
Cerena N. Mackey ) Case No. 234567
Plaintiff, ) The Honorable Kathleen Reed
vs. ) DEFENDANT OHIO
) DEPARTMENT OF EDUCATION
) MOTION TO DIMISS AND
) MEMORANDUM IN SUPPORT
Ohio Department of Education and )
Industrial Commission )
)
Defendant, )
) Amanda Lohrman (0123456)
) LOHRMAN AND LOHRMAN LTD.
) 1234 Victory Ave.,
) Toledo, Ohio 43607
) Phone: (419)-308-4525
) Fax: (419)-435-2324
) Email:Amanda@gmail.com
) Attorney for Defense,
) Ohio Department of Education
****************
Now comes Appellee Ohio Department of Education, by and through undersigned counsel, and
pursuant to Rule 56(C) of the Ohio Civil Rules of Procedure hereby requests this Honorable Court to
dismiss Plaintiff’s claim on the grounds that Plaintiff has failed to state a claim to which relief may be
granted. The grounds for this motion are set forth within the attached memorandum in support.
Respectfully Submitted,
LOHRMAN AND LOHRMAN LTD,
BY: s/ Amanda Lohrman
Amanda Lohrman (0123456)

2. MEMORANDUM IN SUPPORT OF DEFENDANT OHIO DEPARTMENT OF EDUCATION’S MOTION TO
DISMISS
I. Introduction
Cerena N. Mackey, (hereinafter referred to as “Plaintiff”) applied for permanent total disability
benefits (hereinafter referred to as “PTD benefits”) after her retirement from the Ohio Department of
Education (hereinafter referred to as “Defendant”). Plaintiff claimed that she had retired because of an
industrial injury that she had received. Plaintiff received a hearing in front of a commission staff hearing
officer and was granted PTD benefits. Defendant challenged the officer’s findings and asked for the
commission to reconsider Plaintiff’s case. Upon reexamination, the Ohio Industrial Commission ruled
that Plaintiff’s retirement was voluntary and therefore Plaintiff was barred from receiving PTD benefits.
Plaintiff filed a complaint alleging that the Industrial Commission abused its discretion in reopening the
issue of her PTD benefits and also by denying her application after the issue was reopened. Plaintiff
seeks reinstatement of PTD benefits. As discussed fully herein, both of Plaintiff’s claims are without
merit as the Ohio Industrial Commission acted within its full authority and discretion, therefore there
was no abuse of discretion.
ll. Facts
Plaintiff is challenging the denial of her application for PTD benefits. Plaintiff retired from her
job with the Defendant because of an injury that left her in chronic pain in 2005. When Plaintiff applied
for PTD benefits, she was heard by a commission staff hearing officer. The order given by the
commission staff officer did not address whether or not her retirement was voluntary but instead only
discussed the medical evidence pertaining to the existence and severity of her injury and determined
that the appellant was permanently and totally disabled. Defendant filed a motion for reconsideration
alleging a mistake of law in the fact that the officer never addressed the issue of whether Plaintiff’s

3. retirement was voluntary. The Industrial Commission granted Defendant’s motion for reconsideration.
Upon the commission’s reconsideration, the commission found that the Plaintiff’s retirement was
voluntary which ultimately barred Plaintiff from receiving PTD benefits.
lll. Law and Argument
A. No Abuse of Discretion Was Present in Reexamination
Plaintiff first asserts that the Ohio Industrial Commission abused its discretion by reconsidering
Plaintiff’s eligibility for PTD benefits after the commission had granted to her these benefits. However,
the Industrial Commission has continuing, broad jurisdiction to review former orders and findings when
appropriate. (R.C. 4123.52).
This broad discretion has been narrowed down to meaning that orders and findings must
contain only one of the following: 1)new and changed circumstances, 2) fraud, 3) clear mistake of fact,
4) clear mistake of law, or 5) error by inferior tribunal, in order to be eligible for review. State ex rel.
Cuyahoga Hts. Local School Dist. Bd. Of Edn. V. Johnson(1979), 58 Ohio St.2d 132, 12 Ohio Op.3d 128,
388 N.E.2d 1383. In the absence of one of these five circumstances, findings and orders may not be
subject to further review by the Industrial Commission. State ex rel. Cuyahoga Hts. Local School Dist. Bd.
Of Edn. V. Johnson(1979), 58 Ohio St.2d 132, 12 Ohio Op.3d 128, 388 N.E.2d 1383.
Plaintiff’s case met the criteria for review because it contained a mistake of law, which qualifies
the case for review. The mistake of law was that the officer did not consider the nature of Plaintiff’s
retirement. The determination of a retirement being voluntary ultimately bars PTD applicants from
receiving PTD benefits and therefore is an essential factor in determining eligibility for PTD benefits.
State ex rel. Baker Material Handling Corp. v Indus. Comm. (1994), 69 Ohio St.3d. 202, 631 N.E.2d. 138.
The commission staff hearing officer committed a mistake of law when he did not address the issue of

4. whether or not Plaintiff’s retirement was voluntary as it speaks directly to the eligibility of Plaintiff for
PTD benefits.
Based on the foregoing, the Ohio Industrial Commission had full discretion to reexamine
Plaintiff’s case on the grounds that the commission staff hearing officer made a mistake of law.
B. No Abuse of Discretion Was Present in Denial of PTD Benefits
Plaintiff’s second assertion is that the Industrial Commission also abused its discretion by
denying her application for PTD benefits. Plaintiff’s application was denied upon reexamination of her
case on the basis that there was a lacking of medical evidence to support the claim that Plaintiff retired
because of the pain from her industrial injury. Retirement can be deemed voluntary if there is a lack of
medical evidence supporting the claimant’s assertion that her ability to perform her duties was impaired
by his/her industrial injury. State ex rel. Lackey v. Indus. Comm. (2011), 129 Ohio St.3d 119, 2011-Ohio-
3089, 950 N.E.2d 542. Upon reexamination of Plaintiff’s claim for PTD benefits, the Ohio Industrial
Commission found that there was a lack of medical treatment from 2001-2005. This finding nullified
Plaintiff’s assertion that she had retired because of the pain caused by her industrial injury, therefore
making her retirement voluntary.
Based on the lack of medical evidence, the Ohio Industrial Commission did not abuse its
discretion by denying Plaintiff’s PTD benefits.
C. Plaintiff Presents No Claim for Which Relief May Be Granted
Plaintiff’s complaints lack merit as the Ohio Industrial Commission acted within its authority and
did not abuse its discretion. The Ohio Industrial Commission had the right to bar Plaintiff from receiving
PTD benefits as there was a lack of evidence to support her claim that her retirement was involuntary.

5. The Ohio Industrial Commission has also been given the authority to reexamine cases under limited
circumstances. Plaintiff’s case met the requirements for reexamination.
Based on the foregoing, Plaintiff has failed to state a claim for which relief may be granted.
IV. Conclusion
Plaintiff’s first claim that the Ohio Industrial Commission abused its discretion by reexamining
her case after she was granted PTD benefits is unfounded as the Ohio Industrial Commission has
discretion to reexamine any case where there has been a mistake of law. Whereas there is authority
authorizing the Ohio Industrial Commission to reexamine any cases where a mistake of law has been
committed, the Ohio Industrial Commission did not abuse its discretion and therefore Plaintiff’s first
claim is without merit.
Plaintiff’s second claim that the Ohio Industrial Commission abused its discretion by denying her
claim after the Ohio Industrial Commission had already granted her PTD benefits is unfounded because
a lack of medical evidence to support a claimant’s assertions for involuntary retirement can be deemed
voluntary. The Ohio Industrial Commission acted within its authority to deny Plaintiff’s claim on the
basis of a lack of medical evidence supporting her claim of an involuntary retirement and therefore
Plaintiff’s second claim is also without merit.
Both claims stated by Plaintiff lack merit. With a lack of any other complaint against Defendant,
there lacks a claim for which relief may be granted. Therefore, the court may dismiss Plaintiff’s
complaint on the grounds that the Plaintiff has failed to state a claim for which relief may be granted, in
accordance with Rule 56 (C) of the Ohio Rules of Civil Procedure.

6. Wherefore, Defendant respectfully requests this Honorable Court, in accordance with Rule 56
(C) of the Ohio Rules of Civil Procedure, to dismiss Plaintiffs claim on the grounds that Plaintiff has failed
to state a claim for which relief may be granted.
Respectfully Submitted,
By: s/ Amanda Lohrman
LOHRMAN AND LOHRMAN LTD.
Amanda Lohrman (0123456)
1234 Victory Ave.,
Toledo, Ohio 43607
Phone: (419)-308-4525
Fax: (419)-435-2324
Email:Amanda@gmail.com
Attorney for Defendant,
Ohio Department of Education
CERTIFICATION
This is to certify that on the 2nd day of October, 2013, a copy of the above documents were filed
electronically. Notice of this filing will be sent to all parties by operation of the Court’s Electronic Filing
System. The parties may access this filing through the Court’s Electronic Filing System.
Respectfully submitted,
By: s/ Amanda Lohrman
LOHRMAN AND LOHRMAN LTD.
Amanda Lohrman (0123456)
1234 Victory Ave.,
Toledo, Ohio 43607
Phone: (419)-308-4525
Fax: (419)-435-2324
Email:Amanda@gmail.com
Attorney for Defendant,
Ohio Department of Education