The opinion
[Cite as State ex rel. Huber v. Indus. Comm., 2025-Ohio-1029.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Perry C. Huber, :
Relator, :
No. 23AP-164
v. :
(REGULAR CALENDAR)
Industrial Commission of Ohio et al., :
Respondents. :
D E C I S I O N
Rendered on March 25, 2025.
On brief: The Bainbridge Firm, LLC, Casaundra L. Johnson,
and Kara S. Dolan, for relator.
On brief: Dave Yost, Attorney General, and David M.
Canale, for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE’S DECISION
BEATTY BLUNT, J.
{¶ 1} Relator, Perry C. Huber, seeks a writ of mandamus ordering respondent,
Industrial Commission of Ohio (“commission”), to vacate its orders denying temporary
total disability (“TTD”) compensation and to issue an order granting TTD compensation
beginning May 6, 2022.
{¶ 2} This court referred this matter to a magistrate of this court pursuant to Civ.R.
53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate considered the
action on its merits and issued a decision that includes findings of fact and conclusions of
law, which is appended hereto. The magistrate determined that, contrary to relator’s
assertions, the issue of relator’s entitlement to TTD compensation for the period from
May 6 through September 6, 2022 was addressed by the September 9, 2022 staff hearing
No. 23AP-164 2
officer’s (“SHO”) order, including all allowed conditions at that time, and relator has not
shown the commission erred in applying res judicata to deny a second request for this same
period. The magistrate further determined that Dr. Robert Whitehead’s report was some
evidence on which the commission could rely in denying TTD compensation for the period
from September 7 through November 21, 2022, and thus, the commission did not abuse its
discretion in doing so. Thus, the magistrate has recommended that this court deny relator’s
request for a writ of mandamus.
{¶ 3} Relator has filed the following two objections to the magistrate’s decision:
[1.] The Magistrate erred in finding that the
Commission did not abuse its discretion when it applied
res judicata to deny a second request for temporary total
disability compensation for newly allowed conditions.
[2.] The Magistrate erred in finding that the report of
Dr. White (sic) is “some evidence” to support denial of
TTD compensation.
{¶ 4} Because relator has filed objections, we must independently review the
record and the magistrate’s decision to ascertain whether “the magistrate has properly
determined the factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d).
Relator has not objected to the factual findings of the magistrate and, upon our review, we
find no error pertaining to same. We thus turn to whether the magistrate has appropriately
applied the law in this matter.
{¶ 5} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show he has a clear legal right to the relief
sought, and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1984). “A clear legal right to a writ of
mandamus exists when the relator shows that the commission abused its discretion by
entering an order that is not supported by any evidence in the record.” State ex rel. Metz v.
GTC, Inc., 2015-Ohio-1348, ¶ 11, citing State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d
76 (1986). The court will not disturb the commission’s decision if there is “some evidence”
to support it. State ex rel. Fiber-Lite Corp. v. Indus. Comm., 36 Ohio St.3d 202 (1988);
State ex rel. Bennett v. Aldi, Inc., 2016-Ohio-83, ¶ 6 (10th Dist.). “ ‘Where a commission
order is adequately explained and based on some evidence, . . . the order will not be
disturbed as manifesting an abuse of discretion.’ ” State ex rel. Avalon Precision Casting
Co. v. Indus. Comm., 2006-Ohio-2287, ¶ 9, quoting State ex rel. Mobley v. Indus. Comm.,
No. 23AP-164 3
78 Ohio St.3d 579, 584 (1997). Thus, so long as some evidence supports the commission’s
decision, this court must defer to the commission.
{¶ 6} In making its determination, the resolution of disputed facts is within the
final jurisdiction of the commission. State ex rel. Allerton v. Indus. Comm., 69 Ohio St.2d
396, 397 (1982). Questions of credibility and the weight to be given evidence are clearly
within the discretion of the commission as fact finder. State ex rel. Teece v. Indus. Comm.,
68 Ohio St.2d 165 (1981).
{¶ 7} Relevant to the instant matter, we begin by noting that TTD compensation
awarded, pursuant to R.C. 4123.56, is compensation for wages lost when a claimant’s injury
prevents a return to the former position of employment. Upon that predicate, TTD
compensation shall be paid to a claimant until one of four things occur (1) the claimant has
returned to work, (2) the claimant’s treating physician provides a written statement that
the claimant is able to return to the former position of employment, (3) work within the
physical capabilities of the claimant is made available by the employer or another employer,
or (4) the claimant has reached maximum medical improvement. R.C. 4123.56(A); State ex
rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
{¶ 8} Turning to relator’s objections, in his first objection, relator contends the
magistrate erred in finding that the commission did not abuse its discretion when it
applied res judicata to deny a second request for TTD compensation for newly allowed
conditions. We disagree.
{¶ 9} First, it is undisputed that when the SHO heard and decided the issue of TTD
compensation for the time period of May 6 through September 6, 2022, the SHO specified
all of relator’s allowed conditions in relator’s claims as of the date of the hearing on
September 9, 2022. These included the newly allowed conditions upon which relator is
now focused. (Stip. at 411-12.)
{¶ 10} It is likewise undisputed that in support of his request for TTD compensation,
based on the newly allowed conditions for this timeframe, relator submitted a MEDCO-14
form issued by William Anderson, D.C., dated September 1, 2022, which certified that
relator was incapable of working not only due to the original allowed condition, but also
because of the newly allowed additional conditions. (Stip. at 409-10.) Thus, the magistrate
properly found that the issue of TTD compensation for all allowed conditions in the claim
was considered by the SHO, including TTD compensation for the newly allowed additional
No. 23AP-164 4
conditions. (Mag.’s Decision at 12.) Based on the magistrate’s review of the medical
evidence cited by the SHO, as well as the other medical evidence in the record, the
magistrate rightly determined that the SHO properly found that realtor had not met his
burden of proof to establish that he was entitled to TTD compensation for either the original
allowed conditions, or the newly allowed additional conditions. (Mag.’s Decision at 12.)
{¶ 11} Moreover, it is beyond dispute that after the SHO denied relator’s request for
TTD compensation for the period of May 6 through September 6, 2022 via the SHO’s order
dated September 9, 2022, relator failed to challenge the SHO’s finding. (Stip. at 411-12.)
Accordingly, the commission’s subsequent determination denying relator’s second request
for TTD compensation for the identical time period was entirely proper based upon
principles of res judicata, and the magistrate rightly found this to be so.
{¶ 12} Accordingly, we overrule relator’s first objection.
{¶ 13} In his second objection, relator asserts the magistrate erred in finding that
the report of Dr. Whitehead is “some evidence” to support denial of TTD compensation for
the period of September 7 through November 7, 2022. We do not agree.
{¶ 14} In this objection, relator continues to insist–as he did in his brief–that the
office notes of Dr. Scott Stephens and the C-9s requesting an MRI on November 7, 2022
and left shoulder surgery on December 16, 2022 undermine the evidentiary value of
Dr. Whitehead’s October 5, 2022 report. But as the magistrate correctly pointed out, the
December 16, 2022 request for surgery on relator’s shoulder was premised on a condition
not allowed in relator’s claim (bicipital tendinitis of the left shoulder). Although mention
of the allowed condition of “lysis of obstructed adhesions” was also made in a December 14,
2022 office note discussing the surgery, it is clear the surgery requested was based on a
condition that was not allowed in the claim at that time. (Stip. at 488.)
{¶ 15} Moreover, it is well-settled that questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. Teece, 68
Ohio St.2d 165. “[T]he mere existence of conflicting evidence does not render the
commission’s determination of a factual question an abuse of discretion.” State ex rel.
Bonnlander v. Hamon, 2020-Ohio-4269, ¶ 24. Therefore, regarding the denial of TTD
compensation for the period from September 7 through November 21, 2022, the magistrate
correctly found that Dr. Whitehead’s report was some evidence upon which the commission
No. 23AP-164 5
could properly rely, and relator has not demonstrated a clear legal right to the requested
relief or that the commission was under a duty to provide it.
{¶ 16} Accordingly, we overrule relator’s second objection.
{¶ 17} Based on the foregoing, we overrule relator’s objections to the magistrate’s
decision. Having conducted an examination of the magistrate’s decision and an
independent review of the evidence, pursuant to Civ. R. 53, we find the magistrate properly
applied the relevant law to the salient facts in reaching the conclusion that relator is not
entitled to a writ of mandamus. Therefore, we adopt the magistrate’s decision as our own,
including the findings of fact and conclusions of law contained therein, and we deny
relator’s request for a writ of mandamus.
Objections overruled;
writ of mandamus denied.
BOGGS and LELAND, JJ., concur.
No. 23AP-164 6
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Perry C. Huber, :
Relator, :
v. : No. 23AP-164
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE’S DECISION
Rendered on October 18, 2024
The Bainbridge Firm, LLC, and Casaundra L. Johnson, for
relator.
Dave Yost, Attorney General, and David M. Canale, for
respondent Industrial Commission of Ohio.
Marty Law Office LLC, and Corie Ann Marty, for respondent
Lang Masonry Contractors, Inc.
IN MANDAMUS
{¶ 18} Relator Perry C. Huber seeks a writ of mandamus ordering respondent
Industrial Commission of Ohio (“commission”) to vacate its orders denying Huber’s
requests for temporary total disability (“TTD”) compensation and to issue a new order
granting TTD compensation. For the following reasons, the magistrate recommends that
this court deny Huber’s request for a writ of mandamus.
I. Findings of Fact
{¶ 19} 1. Huber sustained an injury in the course of and arising out of his
employment with respondent Lang Masonry Contractors, Inc. (“Lang Masonry”) on
No. 23AP-164 7
July 14, 2020. While working overhead with a piece of equipment, Huber felt a pop in his
left shoulder resulting in pain and decreased movement.
{¶ 20} 2. Following the submission of a first report of injury, occupational disease
or death (“FROI-1”) form on July 21, 2020, the Bureau of Workers’ Compensation
(“BWC”) issued an order on July 24, 2020 initially allowing Huber’s workers’
compensation claim for the conditions of strain unspecified muscle, fascia and tendon at
shoulder/upper arm, left shoulder; and adhesive capsulitis of left shoulder.
{¶ 21} 3. Lang Masonry and Huber executed a series of salary continuation
agreement (“C-55 agreement”) forms beginning with a C-55 agreement signed by Huber
on August 17, 2020. In the C-55 agreements, Lang Masonry agreed to pay Huber’s salary
at a specified rate in lieu of TTD compensation for a period of time that began on the date
of injury and was extended through January 31, 2021.
{¶ 22} 4. John S. Henry, M.D., performed approved surgery on Huber’s left
shoulder on October 27, 2020. Dr. Henry submitted a physician’s report of work ability
(“MEDCO-14”) form dated November 9, 2020 indicating that Huber was unable to
perform the job held on the date of injury for the period of restricted duty from July 30
through December 14, 2020.
{¶ 23} 5. The BWC issued an order on December 30, 2020 allowing the claim for
the additional condition of cervical sprain.
{¶ 24} 6. In a MEDCO-14 dated February 4, 2021, Dr. Henry indicated Huber was
possibly able to return to work on February 24, 2021 with the restrictions of no overhead
lifting or lifting more than 10 pounds. In a MEDCO-14 dated March 4, 2021, Dr. Henry
continued the restrictions and indicated a possible return to work date of March 3, 2021.
Huber returned to light duty work consistent with the restrictions beginning in March
2021.
{¶ 25} 7. Dr. Henry submitted a request for medical service reimbursement or
recommendation for additional conditions for industrial injury or occupational disease
(“C-9”) form dated April 28, 2021 requesting the allowance of the additional condition of
radiculopathy C6-C7. The request was ultimately denied in an order issued by a
commission district hearing officer (“DHO”) on August 3, 2021.
{¶ 26} 8. William P. Anderson, D.C., who became Huber’s physician of record,
conducted an examination of Huber on February 18, 2022. Based on the examination and
No. 23AP-164 8
review of MRIs of the left shoulder and cervical spine, Dr. Anderson recommended
allowing the following additional conditions in the claim:
C6-C7 disc protrusion (substantial aggravation of pre-existing
condition); left supraspinatus partial thickness tear (direct
causation); labral tear, left shoulder (direct causation); left
shoulder subacromial bursitis (direct causation); left
supraspinatus tendinosis (direct causation); left infraspinatus
tendinosis (direct causation); left intra-articular biceps
tendinosis (direct causation); left acromioclavicular
osteoarthritis (substantial aggravation of pre-existing
condition.
(Stip. at 217.)
{¶ 27} 9. Following the initial examination, Dr. Anderson submitted a series of
MEDCO-14 forms. In a MEDCO-14 dated February 18, 2022, Dr. Anderson indicated
Huber was working at the time and provided restrictions for the period from February 18
through April 18, 2022.
{¶ 28} 10. Huber, through counsel, filed a C-86 motion dated April 6, 2022
requesting the claim be amended to allow the additional conditions of left shoulder labral
tear, left partial thickness tear supraspinatus tendon, left shoulder subacromial bursitis,
substantial aggravation of pre-existing left acromioclavicular osteoarthritis, and
substantial aggravation of pre-existing C6-C7 disc protrusion. The BWC referred Huber’s
April 6, 2022 motion to the commission in an order dated April 29, 2022.
{¶ 29} 11. In a C-86 motion dated May 9, 2022, Huber, through counsel, requested
the payment of TTD compensation from April 7 through June 20, 2022 and to continue.
Huber’s motion was accompanied by a request for temporary total compensation (“C-84”)
form dated April 10, 2022 in which Huber stated that he last worked on April 7, 2022.
The motion was supported in part by MEDCO-14 forms completed by Dr. Anderson on
April 13 and May 4, 2022.
{¶ 30} In the April 13, 2022 MEDCO-14, Dr. Anderson indicated Huber was able
to work “REG” hours per week and continued to certify work restrictions through
June 20, 2022. (Stip. at 262.) In the May 4, 2022 MEDCO-14, Dr. Anderson indicated
Huber was not able to work any hours for the period from May 4 through June 20, 2022.
Dr. Anderson noted that Huber had “attempted to continue with the ‘ground work’
restrictions and had even recently attempted to utilize a ‘staircase-type ladder’ due to
shoulder restrictions.” (Stip. at 264.) Dr. Anderson stated that “[e]ven the initial attempt
No. 23AP-164 9
with reaching forward to climb the stairs immediately produced increased pain” and that
“other ‘ground work’ activities have caused a gradual[] escalation in pain and depreciating
functionality.” (Stip. at 264.) The April 13 and May 4, 2022 MEDCO-14 forms included
the conditions allowed at that time.
{¶ 31} 12. In a MEDCO-14 dated June 9, 2022, Dr. Anderson indicated Huber was
unable to work from June 20 through August 15, 2022.
{¶ 32} 13. Howard A. Pinsky, D.O., conducted an independent medical
examination of Huber on June 22, 2022 for purposes of evaluating Huber’s request for
TTD compensation. In a report issued the same day, Dr. Pinsky acknowledged the
conditions that were allowed and disallowed at that time in the claim. The opinions
expressed in Dr. Pinsky’s report was not based on the additional conditions requested in
Huber’s April 6, 2022 motion. Dr. Pinsky noted Huber’s statement that he last worked on
May 6, 2022, a different date from what was contained in the April 10, 2022 C-84 request.
{¶ 33} Based solely on the allowed conditions in the claim, Dr. Pinsky did not find
objective or subjective indications to support ongoing TTD compensation from May 6
through June 19, 2022. Dr. Pinsky found Huber had reached maximum medical
improvement (“MMI”) based on the fact that Huber “had multiple evaluations regarding
the shoulder and no specific recommendation for further treatment has been recorded for
the shoulder and neck” and that “[t]here is further no specific incident that occurred in
May 2022 to initiate a new period of [TTD] compensation.” (Stip. at 298.) Dr. Pinsky
found as follows:
Mr. Huber is now 18 months after his surgical management.
He has no recommendation for additional interventions
regarding the shoulder. He has had issues that have been
presented in the cervical spine for conditions that are not
allowed to the claim. He has no follow[-]up or future
treatment plan for his shoulder or his neck for the allowed
conditions. His subjective physical complaints far outweigh
any objective findings present.
(Stip. at 299.)
{¶ 34} 14. Marcy Dickey, D.O., conducted an independent medical examination of
Huber on June 15, 2022 for purposes of evaluating Huber’s request for allowance of
additional conditions. Dr. Dickey opined that Huber had the additional conditions
requested in the April 6, 2022 motion. However, Dr. Dickey found that the additional
No. 23AP-164 10
conditions were not attributable to the claim by any means of causation. Dr. Dickey also
found that Huber had a zero percent whole person impairment based solely on the
allowed conditions.
{¶ 35} 15. Huber’s April 6, 2022 request for allowance of additional conditions was
heard by a DHO on July 7, 2022. On July 9, 2022, the DHO issued an order granting in
part and denying in part Huber’s request. Specifically, the DHO granted the request for
additional allowance of the conditions of left partial thickness tear supraspinatus tendon
and left shoulder subacromial bursitis. The DHO denied the requested allowance of the
conditions of left shoulder labral tear, substantial aggravation of preexisting left
acromioclavicular osteoarthritis, and substantial aggravation of preexisting C6-C7 disc
protrusion.
{¶ 36} 16. Huber filed a second C-84 form dated July 14, 2022. In this request for
TTD compensation, Huber indicated he last worked on May 5, 2022, one day earlier than
noted in Dr. Pinsky’s report. In a MEDCO-14 also dated July 14, 2022, Dr. Anderson
certified Huber was unable to work from May 6 through September 12, 2022 based only
on the conditions that were allowed prior to the July 9, 2022 DHO order.
{¶ 37} 17. A DHO held a hearing on Huber’s May 9, 2022 request for TTD
compensation on July 28, 2022. In an order issued August 2, 2022, the DHO granted
Huber’s request based on the conditions allowed at that time. The DHO noted Huber’s
attorney clarified at the hearing that the request for TTD compensation was limited to the
period beginning May 6, 2022.
{¶ 38} 18. On August 15, 2022, a commission staff hearing officer (“SHO”) held a
hearing on appeals of the July 9, 2022 DHO order filed by both Lang Masonry and Huber.
In an order issued August 17, 2022, the SHO modified the DHO’s order. The SHO
affirmed the DHO’s allowance of the additional conditions of left partial thickness tear
supraspinatus tendon and left shoulder subacromial bursitis. The SHO also allowed the
condition of substantial aggravation of preexisting left acromioclavicular osteoarthritis.
The SHO affirmed the denial of the conditions of left shoulder labral tear and substantial
aggravation of preexisting C6-C7 disc protrusion.
{¶ 39} 19. On August 31, 2022, the commission refused Huber’s appeal of the
August 17, 2022 SHO order.
No. 23AP-164 11
{¶ 40} 20. In a MEDCO-14 dated September 1, 2022, Dr. Anderson certified Huber
was unable to work from May 6 through September 12, 2022. Dr. Anderson indicated that
Huber was prevented from working as a result of two of the previously allowed conditions
listed in the April 13, May 4, and July 14, 2022 MEDCO-14 forms in addition to those
conditions newly allowed under the August 17, 2022 SHO order.
{¶ 41} 21. On September 6, 2022, an SHO heard an appeal filed by Lang Masonry
from the August 2, 2022 DHO order granting TTD compensation. In an order issued
September 9, 2022, the SHO vacated the DHO’s order and denied Huber’s May 9, 2022
request for TTD compensation. In support of this determination, the SHO made the
following findings: “The [SHO] is not persuaded that [Huber’s] allowed conditions again
rendered him temporarily and totally disabled beginning on [May 6, 2022].” (Stip. at 411.)
In making this decision, the SHO relied solely on Dr. Pinsky’s June 22, 2022 report. The
SHO listed all of the conditions allowed and disallowed in the claim at that time, including
those conditions addressed in the August 17, 2022 SHO order.
{¶ 42} 22. Huber again requested TTD compensation in a third C-84 form dated
September 8, 2022. In a MEDCO-14 also dated September 8, 2022, Dr. Anderson
certified Huber was unable to work from September 8 through November 14, 2022 based
on all allowed conditions in the claim.
{¶ 43} 23. In a C-86 motion dated September 15, 2022, Huber, through counsel,
requested payment of TTD compensation “for the newly allowed left acromioclavicular
[o]steoarthritis from May 6, 2022, through the present and to continue.” (Stip. at 422.)
In addition to medical evidence in the record, Huber pointed to the August 17, 2022 SHO
order that granted Huber’s request to allow additional conditions. In a fourth C-84 form
dated September 14, 2022, Huber requested a new period of TTD compensation
beginning September 7, 2022.
{¶ 44} 24. On September 28, 2022, the commission refused an appeal filed by
Huber from the September 9, 2022 SHO order denying TTD compensation.
{¶ 45} 25. Robert D. Whitehead, M.D., completed a MEDCO-21 physician review
for purposes of evaluating Huber’s request for TTD compensation from September 7 to
November 13, 2022. Dr. Whitehead found the record failed to support Huber’s request
for TTD compensation for the period from September 7 through November 13, 2022 as
reasonably related to the allowed conditions in the claim. Dr. Whitehead also found that
No. 23AP-164 12
Huber had “reached MMI at this time if no further surgeries have been plan[ned].” (Stip.
at 450.)
{¶ 46} 26. In a C-9 form dated November 7, 2022, Scott Stephens, M.D., requested
an MRI of Huber’s left shoulder.
{¶ 47} 27. Huber again requested TTD compensation in a fifth C-84 form dated
November 8, 2022. In a MEDCO-14 dated November 8, 2022, Dr. Anderson certified
Huber was unable to work from November 8, 2022 through February 6, 2023.
{¶ 48} 28. A DHO held a hearing on Huber’s new request for TTD compensation
on November 21, 2022. In an order issued on November 23, 2022, the DHO denied
Huber’s September 15, 2022 C-84 request and C-86 motion. Noting that Huber requested
TTD compensation from May 6, 2022 and to continue, the DHO addressed the request in
two parts: (1) from May 6 through September 6, 2022, and (2) from September 7, 2022
through the date of the hearing. The DHO found that the first period of TTD
compensation was barred by res judicata because the request for the same period had
been previously denied by the September 9, 2022 SHO order. With regard to the second
period of TTD compensation from September 7, 2022 and to continue, the DHO denied
the request based on the October 5, 2022 report of Dr. Whitehead.
{¶ 49} 29. Huber was examined by Dr. Stephens on December 9, 2022. In a report
signed on December 14, 2022, Dr. Stephens reviewed an MRI that “demonstrates partial
rotator cuff tear as well as biceps tendonitis.” (Stip. at 487.) As a result, Dr. Stephens
diagnosed Huber with left shoulder biceps tendonitis, partial rotator cuff tear, and
adhesive capsulitis. With regard to treatment, Dr. Stephens indicated the following: “Plan
is to get approval for biceps tendonitis and possible for shoulder scope consisting of
rotator cuff repair, open versus arthroscopic biceps tenodesis as well as lysis of obstructed
adhesions.” (Stip. at 488.)
{¶ 50} 30. In a C-9 form dated December 16, 2022, Dr. Stephens recommended
additional allowance of the condition of bicipital tendinitis of left shoulder to the claim.
{¶ 51} 31. Huber’s appeal from the November 23, 2022 DHO order was heard by
an SHO on January 10, 2023. In an order issued on January 13, 2023, the SHO affirmed
the DHO’s order and denied Huber’s request for TTD compensation. With regard to the
request for TTD compensation for the period from May 6 through September 6, 2022, the
SHO made the following findings:
No. 23AP-164 13
The [SHO] finds that this period of time was previously
addressed pursuant to [SHO] order issued [September 9
2022] and is res judicata. The conditions additionally allowed
by [DHO] order issued [July 9, 2022] and [SHO] order issued
[August 17, 2022], had already been allowed at the time of the
[SHO] order of [September 6, 2022]. Therefore there are no
new or changed circumstances now in order to re-address the
[TTD] from [May 6, 2022] through [September 6, 2022].
(Stip. at 496.) With regard to request for TTD compensation for the period from
September 7 through November 21, 2022, the SHO made the following findings:
There are no new and changed circumstances that would
render [Huber] again temporarily and totally disabled from
[September 7, 2022]. This finding is based on the report of
Robert Whitehead, M.D., dated [October 5, 2022].
Dr. Whitehead opines that there has been no recent and no
new objective evidence to support [TTD] with regards to the
left shoulder or cervical spine. Dr. Whitehead opines that a
preponderance of the evidence fails to support temporary
total compensation from [September 7, 2022] as being
reasonably related to the allowed conditions in this claim and
that no subsequent surgical treatment is planned for the
allowed conditions in this claim at this time.
(Stip. at 496-97.)
{¶ 52} 32. On February 1, 2023, the commission refused an appeal filed by Huber
from the January 13, 2023 SHO order.
{¶ 53} 33. Huber commenced this action by filing his complaint for writ of
mandamus on March 10, 2023.
II. Discussion and Conclusions of Law
{¶ 54} Huber seeks a writ of mandamus ordering the commission to grant him
TTD compensation beginning May 6, 2022.
A. Requirements for Mandamus
{¶ 55} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, Huber must establish a clear legal right to the
requested relief, that the commission has a clear legal duty to provide such relief, and the
lack of an adequate remedy in the ordinary course of the law. State ex rel. Pressley v.
Indus. Comm., 11 Ohio St.2d 141 (1967). A writ of mandamus will issue where “there is a
legal basis to compel the commission to perform its clear legal duty under the law,
No. 23AP-164 14
including when the commission has abused its discretion in carrying out its duties.” State
ex rel. Belle Tire Distribs. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122, ¶ 25.
“Where a commission order is adequately explained and based on some evidence, even
evidence that may be persuasively contradicted by other evidence of record, the order will
not be disturbed as manifesting an abuse of discretion.” State ex rel. Mobley v. Indus.
Comm. of Ohio, 78 Ohio St.3d 579, 584 (1997). Additionally, a writ of mandamus “ ‘may
issue against the Industrial Commission if the commission has incorrectly interpreted
Ohio law.’ ” State ex rel. Cassens Corp. v. Indus. Comm. of Ohio, 174 Ohio St.3d 414,
2024-Ohio-526, ¶ 10, quoting State ex rel. Gassmann v. Indus. Comm., 41 Ohio St.2d 64,
65 (1975).
B. Temporary Total Disability Compensation
{¶ 56} Workers’ compensation benefits in the form of TTD compensation are
governed by R.C. 4123.56. The purpose of TTD compensation is to compensate a worker
for the loss of earnings incurred while they heal from an injury and are unable to return
to work. Ewell v. Montgomery Cty. Court of Common Pleas, 10th Dist. No. 13AP-1078,
2014-Ohio-3047, ¶ 13; State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376, 380
(2000). In order to be eligible to receive TTD compensation, an injured worker must meet
the requirements of R.C. 4123.56(F), which provides as follows:
If an employee is unable to work or suffers a wage loss as the
direct result of an impairment arising from an injury or
occupational disease, the employee is entitled to receive
compensation under this section, provided the employee is
otherwise qualified. If an employee is not working or has
suffered a wage loss as the direct result of reasons unrelated
to the allowed injury or occupational disease, the employee is
not eligible to receive compensation under this section. It is
the intent of the general assembly to supersede any previous
judicial decision that applied the doctrine of voluntary
abandonment to a claim brought under this section.
R.C. 4123.56(F). From its text, R.C. 4123.56(F) makes plain that a worker seeking to
receive TTD compensation under the statute must be: (1) unable to work as the direct
result of an impairment arising from an injury or occupational disease, and (2) otherwise
qualified. See State ex rel. Autozone Stores, Inc. v. Indus. Comm. of Ohio, 10th Dist. No.
21AP-294, 2023-Ohio-633, ¶ 35.
No. 23AP-164 15
{¶ 57} As indicated by the second requirement of R.C. 4123.56(F), a person seeking
benefits under the statute must meet other qualifications. With regard to TTD
compensation, R.C. 4123.56(A) contains the following additional qualifications:
[P]ayment [for TTD] shall not be made for the period when
any employee has returned to work, when an employee’s
treating physician has made a written statement that the
employee is capable of returning to the employee’s former
position of employment, when work within the physical
capabilities of the employee is made available by the employer
or another employer, or when the employee has reached the
maximum medical improvement.
R.C. 4123.56(A). See Ewell at ¶ 13; Autozone at ¶ 29. Thus, “R.C. 4123.56(A) designates
maximum medical improvement as one of four statutory bases for denying temporary
total disability compensation.” State ex rel. Barnes v. Indus. Comm., 114 Ohio St.3d 444,
2007-Ohio-4557, ¶ 14. MMI is defined as “a treatment plateau (static or well-stabilized)
at which no fundamental functional or physiological change can be expected within
reasonable medical probability in spite of continuing medical or rehabilitative
procedures. An injured worker may need supportive treatment to maintain this level of
function.” Ohio Adm.Code 4121-3-32(A)(1).
C. Analysis
{¶ 58} Huber argues the commission abused its discretion by denying his request
for TTD compensation in the January 13, 2023 SHO order for two reasons. First, Huber
argues the SHO erroneously applied the doctrine of res judicata to deny TTD
compensation for the period from May 6 through September 6, 2022—the same period of
time that was denied by the September 9, 2022 SHO order. Second, Huber argues the
report of Dr. Whitehead was not some evidence to support the denial of TTD
compensation for the period from September 7 through November 21, 2022.
1. Whether It Was Error to Apply Res Judicata in the January 13, 2023 SHO Order
{¶ 59} In general terms, “[r]es judicata operates ‘to preclude the relitigation of a
point of law or fact that was at issue in a former action between the same parties and was
passed upon by a court of competent jurisdiction.’ ” State ex rel. Kroger Co. v. Indus.
Comm., 80 Ohio St.3d 649, 651 (1998), quoting Office of Consumers’ Counsel v. Public
Utilities Comm., 16 Ohio St. 3d 9, 10 (1985). Res judicata applies to administrative
No. 23AP-164 16
proceedings including proceedings before the commission.” State ex rel. Casey v. Indus.
Comm. of Ohio, 10th Dist. No. 20AP-247, 2022-Ohio-532, ¶ 18. Generally, however, the
continuing jurisdiction of the commission under R.C. 4123.52 limits the application of res
judicata in workers’ compensation matters. State ex rel. Tantarelli v. Decapua Ents., 156
Ohio St.3d 258, 2019-Ohio-517, ¶ 14. See also State ex rel. Quest Diagnostics, Inc. v.
Indus. Comm., 10th Dist. No. 10AP-153, 2011-Ohio-78, ¶ 15 (stating that “[u]nless the
claim has expired by operation of law, the commission has jurisdiction to consider issues
not previously addressed” (Emphasis added.)).
{¶ 60} Huber argues res judicata does not apply in this case because the
September 15, 2022 request for TTD compensation was based on additional conditions
that were allowed as a result of the August 17, 2022 SHO order. Huber argues these newly
allowed conditions were not considered by Dr. Pinsky in his June 22, 2022 report. As the
SHO relied on Dr. Pinsky’s report in the September 9, 2022 order that denied Huber’s
original May 9, 2022 motion for TTD compensation, Huber argues that the newly allowed
conditions preclude application of res judicata.
{¶ 61} Initially, it is important to note that the addition of new conditions to a
claim does not necessarily guarantee the payment of a new period of TTD compensation.
State ex rel. Ritzie v. Reece-Campbell, Inc., 146 Ohio St.3d 259, 2015-Ohio-5224, ¶ 16. As
this court has previously observed, “newly allowed conditions constitute new and changed
circumstances which may warrant the payment of a new period of TTD compensation
provided that all other requirements for the payment of TTD compensation are met.”
(Emphasis in original.) State ex rel. Wyrebaugh v. Indus. Comm., 10th Dist. No. 06AP-
610, 2007-Ohio-1939, ¶ 37. Yet, even when new conditions are allowed in the claim, “the
burden remains on the claimant to establish that the newly allowed conditions render
claimant temporarily and totally disabled.” Id.
{¶ 62} It is true that certain additional conditions—namely, left partial thickness
tear supraspinatus tendon, left shoulder subacromial bursitis, and substantial
aggravation of preexisting left acromioclavicular osteoarthritis—were not allowed at the
time of Dr. Pinsky’s report. However, the commission does not speak through the medical
reports on which it relies, but rather through its orders. See State ex rel. Yellow Freight
Sys. v. Indus. Comm. of Ohio, 71 Ohio St.3d 139, 142 (1994). In the September 9, 2022
order denying the original motion for TTD compensation, the SHO listed all of the
No. 23AP-164 17
conditions allowed in the claim at that time, including the conditions newly allowed under
the August 17, 2022 SHO order. Additionally, in the findings in support of the
determination, the SHO referenced the allowed conditions which had previously been
listed. The SHO stated that the SHO was “not persuaded that [Huber’s] allowed
conditions again rendered him temporarily and totally disabled beginning on [May 6,
2022].” (Emphasis added.) (Stip. at 411.)
{¶ 63} Prior to the September 6, 2022 hearing before the SHO, Huber’s treating
physician listed the newly allowed conditions as conditions preventing Huber from
returning to the job duties held on the date of the injury. In the September 1, 2022
MEDCO-14, Dr. Anderson indicated that Huber was unable to work from May 6 until
September 12, 2022. Dr. Anderson listed two of the conditions previously cited as
rendering Huber temporarily and totally disabled in the May 4, June 9, and July 14, 2022
MEDCO-14 forms in addition to all three conditions that were newly allowed under the
August 17, 2022 SHO order. However, the MEDCO-14 does not list any new clinical
findings from Dr. Anderson to support finding that these newly allowed conditions
contributed to rendering Huber temporarily and totally disabled. Instead, the MEDCO-14
cites the “exam note of 07/14/2022,” which is the same exam note that supported the
July 14, 2020 MEDCO-14 in which Dr. Anderson did not list any of the newly allowed
conditions as rendering Huber temporarily and totally disabled. (Stip. at 410.) In addition
to this same exam note, Dr. Anderson referenced the “DHO/SHO Order of 08/15/2022”
as supporting the clinical findings. (Stip. at 410.)
{¶ 64} Since Dr. Anderson clearly indicated prior to the September 6, 2022 SHO
hearing that the newly allowed conditions, among others, were rendering Huber unable
to work for the period of time in question, those newly allowed conditions were at issue
at the September 6, 2022 SHO hearing. As a result, it was Huber’s burden, as the claimant,
to establish that the newly allowed conditions, in addition to the others that were cited,
rendered him temporarily and totally disabled. See Wyrebaugh at ¶ 37. Huber could have
submitted additional medical evidence to support the request related to the newly allowed
conditions. No transcript from the September 6, 2022 hearing is present in the record of
this case, nor does Huber contend that other evidence was submitted at the hearing to
support finding that the newly allowed conditions rendered Huber unable to work. See
generally State ex rel. Ritzie v. Reece-Campbell, Inc., 10th Dist. No. 13AP-669, 2014-
No. 23AP-164 18
Ohio-2782, ¶ 8. Huber also could have specifically challenged the SHO’s determination
regarding the newly allowed conditions in his appeal of the September 9, 2022 order to
the commission. Huber, however, did not make such a challenge, but rather asserted only
that “[t]his decision would serve as an injustice.” (Stip. at 421.) See State ex rel. Hodge v.
Ryan, 131 Ohio St.3d 357, 2012-Ohio-999, ¶ 6 (stating that “mandamus will not issue
when an individual has a plain and adequate remedy in the ordinary course of law” and
noting that “[a]dministrative remedies are plain and adequate remedies that preclude
mandamus”).
{¶ 65} Despite Huber’s acknowledgement that the SHO did include in the
September 9, 2022 order all conditions allowed at that time, Huber nevertheless argues
that the SHO’s order “does not otherwise indicate that these conditions were considered
in the decision adjudicating a request for TTD compensation that was filed before these
conditions were added to the claim.” (Huber’s Brief at 31-32.) In addition to listing all of
the allowed and disallowed conditions in the claim, the SHO explained the basis for the
decision and stated that “[a]ll of the evidence was reviewed and considered in rendering
this decision.” (Stip. at 411.) Among the evidence in the record at that time was
Dr. Anderson’s September 1, 2022 MEDCO-14, which listed, among others, the
conditions newly allowed by the August 17, 2022 SHO order. Huber does not demonstrate
that the SHO was required to separately provide reasoning specific to each of the allowed
conditions in the claim after listing all of the allowed conditions.
{¶ 66} In conclusion, Huber contends that the additional conditions allowed in the
claim on August 17, 2022 were new and changed circumstances that preclude application
of res judicata to his second request for TTD compensation for the same period of time.
Contrary to this contention, the issue of Huber’s entitlement to TTD compensation for the
period from May 6 through September 6, 2022 was addressed by the September 9, 2022
SHO order, including all allowed conditions at that time. Huber has not shown the
commission erred in applying res judicata to deny a second request for this same period
of time. Compare State ex rel. B.O.C. Group, 58 Ohio St.3d 199, 201 (1991). As a result,
Huber cannot demonstrate a clear legal right to vacate the SHO’s findings with regard to
res judicata or that the commission was under a clear legal duty to provide such relief.
2. Whether Dr. Whitehead’s Report Is Some Evidence to Support Denial of TTD
Compensation
No. 23AP-164 19
{¶ 67} Second, Huber argues the SHO committed an abuse of discretion in the
January 13, 2023 order by relying on the report of Dr. Whitehead to support the denial of
TTD compensation for the period from September 7 through November 21, 2022. In
support of this argument, Huber argues that Dr. Whitehead “was unaware that several
C-9s had recently been approved, including the request for a cervical MRI, and whose
opinion was rendered before surgery was requested in December 2022.” (Huber’s Brief at
32.) Huber argues that these developments occurring “contemporaneous with and
subsequent to” Dr. Whitehead’s report “undermine the basis of his opinions.” (Huber’s
Brief at 32-33.)
{¶ 68} In the October 5, 2022 MEDCO-21, Dr. Whitehead found that the medical
evidence on record did not support Huber’s request for TTD compensation for the period
in question. Huber is correct that following the issuance of Dr. Whitehead’s report,
additional C-9 forms requesting diagnostic services and treatment were filed.
Dr. Stephens requested an MRI on November 7, 2022 and left shoulder surgery on
December 16, 2022. Importantly, however, Dr. Stephens’s December 16, 2022 request
was based on a condition that was not allowed at that time, i.e., bicipital tendinitis of left
shoulder. In a December 14, 2022 office note, Dr. Stephens indicated that the “[p]lan is
to get approval for biceps tendinitis and possible for shoulder scope consisting of rotator
cuff repair, open versus arthroscopic biceps tenodesis as well as lysis of obstructed
adhesions.” (Stip. at 488.) Thus, Dr. Stephens’s contemporaneous notes reflect that the
surgery in question was based on a condition that was not allowed in the claim at that
time. It is further noteworthy that the condition of bicipital tendinitis was not listed in the
January 13, 2023 SHO order.
{¶ 69} Therefore, although these requests were in the record at the time the SHO
issued the January 13, 2023 order, it cannot be said that the additional requested services
caused Dr. Whitehead’s opinion to be without any evidentiary value. Compare State ex
rel. Sellards v. Indus. Comm., 108 Ohio St.3d 306, 2006-Ohio-1058, ¶ 20 (finding
physician’s indication of MMI was “premature” considering the “commission’s
contemporaneous approval of [a] treatment program” for condition allowed in the claim).
As Dr. Whitehead’s report was some evidence on which the commission could rely, it
cannot be said that the commission abused its discretion in denying TTD compensation
No. 23AP-164 20
for the period from September 7 through November 21, 2022. See Casey, 2022-Ohio-532,
at ¶ 21, quoting State ex rel. Welsh Ents., Inc. v. Indus. Comm., 10th Dist. No. 19AP-127,
2020-Ohio-2801, ¶ 26 (stating that “this court ‘cannot second guess the commission’s
judgments either as to witness credibility or on the proper weight to accord particular
evidence’ ”); State ex rel. Bonnlander v. Hamon, 161 Ohio St.3d 373, 2020-Ohio-4269,
¶ 24 (stating that “the mere existence of conflicting evidence does not render the
commission’s determination of a factual question an abuse of discretion”). Therefore,
with regard to the denial of TTD compensation for the period from September 7 through
November 21, 2022, Huber has not demonstrated a clear legal right to the requested relief
or that the commission was under a duty to provide it.
D. Conclusion
{¶ 70} Accordingly, it is the decision and recommendation of the magistrate that
Huber’s request for a writ of mandamus should be denied.
/S/ MAGISTRATE
JOSEPH E. WENGER IV
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court’s adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.