The opinion
[Cite as State ex rel. Brown v. Indus. Comm., 2016-Ohio-7007.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Michael L. Brown, :
Relator, :
v. : No. 15AP-909
Industrial Commission of Ohio and : (REGULAR CALENDAR)
ABC Chiropractic,
:
Respondents.
:
D E C I S I O N
Rendered on September 27, 2016
On brief: Knisley Law Offices, Dylan O. Knisley, and
Kurt A. Knisley, for relator.
On brief: Michael DeWine, Attorney General, and Natalie J.
Tackett, for respondent Industrial Commission of Ohio.
IN MANDAMUS
LUPER SCHUSTER, J.
{¶ 1} Relator, Michael L. Brown, commenced this original action requesting that
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order denying Brown's application for temporary total
disability ("TTD") compensation and ordering the commission to find Brown is entitled to
TTD compensation.
{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
court deny relator's request for a writ of mandamus.
No. 15AP-909 2
{¶ 3} On May 27, 2016, relator filed with this court a document captioned
"Objection to Magistrate's Decision Dated May 20, 2016." Civ.R. 53(D)(3)(b)(ii) requires
that "[a]n objection to a magistrate's decision shall be specific and state with particularity
all grounds for objection." Relator did not give any specific grounds for his objection to
the magistrate's decision. Instead, the body of the document purporting to be relator's
objections states in its entirety, "Relator, Michael L. Brown, hereby gives notice of
objection to the Tenth District Appellate Court of Ohio from the Magistrate's decision
rendered on May 20, 2016," and, following the signature page, relator requested this court
schedule an oral argument. (Relator's Objs. at 1-3.) Because relator does not include any
argument or any grounds for an objection, we cannot construe relator's filing on May 27,
2016 as objections. Accordingly, no objections having been filed, we review this case
under Civ.R.53(D)(4)(c).
{¶ 4} Finding no error of law or other defect on the face of the magistrate's
decision, this court adopts the magistrate's decision as our own, including the findings of
fact and conclusions of law. In accordance with the magistrate's decision, we deny
relator's requested writ of mandamus.
Writ of mandamus denied.
DORRIAN, P.J., and BRUNNER, J., concur.
No. 15AP-909 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Michael L. Brown, :
Relator, :
v. : No. 15AP-909
Industrial Commission of Ohio and : (REGULAR CALENDAR)
ABC Chiropractic,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on May 20, 2016
Knisley Law Offices, Dylan Knisley, and Kurt Knisley, for
relator.
Michael DeWine, Attorney General, and Natalie J. Tackett,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 5} Relator, Michael L. Brown, has filed this original action requesting that
this court issue a writ of mandamus ordering respondent, Industrial Commission of
Ohio ("commission"), to vacate its order which denied relator's application for
temporary total disability ("TTD") compensation, and ordering the commission to find
that he is entitled to that compensation.
No. 15AP-909 4
Findings of Fact:
{¶ 6} 1. Relator was working as a chiropractor on July 2, 2014, when he alleged
that he sustained a work-related injury to his neck, right shoulder, and right knee when
he caught a patient who fell.
{¶ 7} 2. Relator's FROI-1 filed July 28, 2014, was initially disallowed by the
Ohio Bureau of Workers' Compensation ("BWC") based upon a finding that relator was
not covered under workers' compensation because he was a sole proprietor/partner who
had not elected to have coverage for himself on the date of injury.
{¶ 8} 3. Following a hearing on December 10, 2014, a district hearing officer
("DHO") allowed relator's claim for the following conditions: "cervical sprain; right
shoulder sprain; right knee medial meniscus tear; and right knee sprain." The DHO also
awarded relator TTD compensation from July 3 through September 12, 2014, and
indicated that such compensation may continue based upon submission of appropriate
proof.
{¶ 9} 4. The BWC appealed and the matter was heard before a staff hearing
officer ("SHO") on February 10, 2015. Based on evidence that relator had prior
extensive right shoulder problems and that Robert J. Nowinski, D.O., opined that he
needed right shoulder replacement surgery for end-stage glenohurmeral arthritis, the
SHO specifically disallowed relator's claim for "cervical sprain; right shoulder sprain."
{¶ 10} The SHO determined that relator's claim should be allowed for "right knee
medial meniscus tear; right knee sprain," and determined that relator had presented
sufficient evidence entitling him to an award of TTD compensation for the closed period
of July 18 through August 31, 2014. The SHO specifically relied on the
September 25, 2014 C-30 request for medical information completed by Mark
D'Onofrio, M.D., who indicated that he first saw relator for right knee pain on July 9,
2014, and diagnosed relator as having a right knee tear medial meniscus. Dr. D'Onofrio
indicated that relator underwent a right knee arthroscopy and that he was disabled from
employment from July 18 to August 31, 2014.
{¶ 11} 5. Relator's appeal was refused by order of the commission mailed
March 4, 2015.
No. 15AP-909 5
{¶ 12} 6. Relator treated exclusively with Mark Drake, D.C. Relator first saw Dr.
Drake on July 11, 2014 for evaluation and treatment of his cervical, right shoulder, and
right knee conditions. Dr. Drake's report indicates that relator's primary reason for
treatment with him was for cervical and thoracic complaints and that relator intended to
pursue orthopedic evaluation of both his shoulder and knee. Dr. Drake only treated
relator's cervical and thoracic spine and shoulder. Dr. Drake recommended further
treatment for his spine and recommended that his shoulder and knee be evaluated by an
orthopedist.
{¶ 13} In his August 20, 2014 report, Dr. Drake indicated that relator presented
for continued treatment of cervical and right upper extremity complaints and that he
was awaiting approval of post-surgical rehabilitation for his knee. On examination, Dr.
Drake noted that his cervical range of motion was substantially reduced and that he had
diminished range of motion with report of pain in flexion, extension, abduction, internal
rotation, and external rotation of his right shoulder. Dr. Drake noted that relator was
able to actively flex his right knee to 90 degrees, noted some crepitus, but no obvious
click as would be associated with a torn meniscus. Treatment included chiropractic
adjustments of relator's thoracic and cervical regions, as well as adjustment and
therapeutic ultra sound to his right shoulder.
{¶ 14} Dr. Drake completed a Medco-14 dated August 25, 2014 indicating that
relator was temporarily unable to return to his former position of employment from
July 2 through September 12, 2014. Dr. Drake noted that both relator's right shoulder
sprain and his right knee sprain were the conditions causing his temporary disability
and that he was awaiting approval for right shoulder rehabilitation, right knee post-
surgical rehabilitation, and a cervical sprain MRI.
{¶ 15} The record also contains the October 11, 2014 report of Dr. Drake
indicating that relator presented for continued treatment and evaluation of job injuries
involving his cervical spine and right shoulder. This report specifically indicates that the
additional injury affecting relator's right knee was not the primary focus of the visit, but
that he did continue to have pain. Dr. Drake adjusted relator's upper thoracic and
cervical regions, and applied electrical stimulation and therapeutic ultrasound to his
shoulder. Dr. Drake indicated that he would again request authorization for a cervical
No. 15AP-909 6
spine MRI and continued chiropractic care. Dr. Drake also recommended an orthopedic
consultation to evaluate relator's right shoulder and indicated that he would complete a
Medco-14 noting substantial limitations in relator's right shoulder function that limit his
ability to function within his profession as a chiropractor. Dr. Drake did complete a
Medco-14 indicating that relator was temporarily and totally disabled from
October 11, 2014 through January 13, 2015, noting that the conditions causing this
disability were his right shoulder sprain with possible internal joint derangement and
right knee sprain with torn meniscus.
{¶ 16} The record also contains a January 12, 2015 report of Dr. Drake indicating
that relator presented for evaluation of right shoulder, cervical spine, and right knee
injuries. Dr. Drake noted that relator reported pain of 8/10 in his shoulder and 6/10 in
his right knee. Dr. Drake noted that relator's range of motion of his right shoulder was
still significantly affected and that he had active range of motion of his right knee to full
extension without additional pain. Dr. Drake again recommended a cervical MRI, a
medical evaluation for an EMG study of relator's right upper extremity, an orthopedic
consultation for relator's right knee and right shoulder, and rehabilitation for relator's
right knee. Dr. Drake completed another Medco-14 indicating that relator was
temporarily and totally disabled from January 16 through March 15, 2015, and again
listed relator's right shoulder sprain with suspected joint derangement and right knee
sprain with torn meniscus as the conditions causing relator's disability.
{¶ 17} 7. In an order mailed March 13, 2015, the BWC determined that relator
had been overpaid TTD compensation in the amount of $21,225 and ordered that the
overpayment be recouped from future awards of compensation to which relator may
become entitled.
{¶ 18} 8. Relator appealed and the matter was heard before a DHO on April 15,
2015. The DHO modified the prior BWC order finding an overpayment and stating:
The Hearing Officer finds that the Injured Worker was paid
temporary total disability compensation from 07/03/2014 to
02/07/2015. However, Staff Hearing Officer order dated
02/10/2015 only granted temporary total disability
compensation from 07/18/2014 to 08/31/2014, a closed
period. It is therefore the order of the Hearing Officer that
the Injured Worker was overpaid temporary total disability
No. 15AP-909 7
compensation from 07/03/2014 to 07/17/2014 and from
09/01/2014 to 02/07/2015. It is therefore the order of the
Hearing Officer that the total amount of the overpayment is
$21,225. The BWC is to recoup the overpayment pursuant to
R.C. 4123.511(K).
This order is based on the Staff Hearing Officer order dated
02/10/2015.
{¶ 19} 9. Relator's appeal was heard before an SHO on May 26, 2015. The SHO
affirmed the prior DHO order finding an overpayment, stating:
The order of the District Hearing Officer, issued 04/17/2015,
is affirmed.
The Staff Hearing Officer affirms the District Hearing
Officer's finding that the Bureau of Workers' Compensation
correctly calculated the overpaid periods of temporary total
disability compensation in this claim between 07/03/2014
and 02/07/2015. Specifically, the Staff Hearing Officer notes
the Injured Worker was awarded a discreet and closed period
of temporary total disability compensation pursuant to Staff
Hearing Officer order, dated 02/10/2015. Temporary total
disability compensation was awarded from 07/18/2014
through 08/31/2014, closed period. Accordingly, the Staff
Hearing Officer finds the Injured Worker was erroneously
paid temporary total disability compensation by the Bureau
of Workers' Compensation from 07/03/2014 to 07/17/2014
and again from 09/01/2014 to 02/07/2015. The Staff
Hearing Officer affirms the Bureau of Workers'
Compensation's calculation of these overpaid benefits to
total $21,225.00 and orders that a recoupment be made
pursuant to the non-fraud provisions of R.C. 4123.511(K).
This decision is based on the Staff Hearing Officer's decision,
dated 02/10/2015 and the overpayment calculation included
in the Bureau of Workers' Compensation administrative
order, dated 03/13/2015.
All of the evidence available to the Industrial Commission
was reviewed and considered in rendering this decision.
{¶ 20} 10. In an order mailed June 18, 2015, relator's appeal from the
determination of an overpayment was refused.
No. 15AP-909 8
{¶ 21} 11. On May 26, 2015, (the same day the SHO upheld the determination of
an overpayment), a DHO heard relator's new application for TTD compensation. The
DHO specifically denied relator's request for TTD compensation from August 31, 2014
through May 6, 2015 finding that relator failed to establish by a preponderance of the
evidence that he was temporarily and totally disabled based independently on the
allowed conditions in his claim. Specifically, the DHO order provides:
Temporary total disability compensation requested from
08/31/2014 through 05/06/2015 is denied. The Staff [sic]
Hearing Officer finds the Injured Worker has failed to
establish by a preponderance of the evidence in file that he
was temporarily and totally disabled based independently on
the allowed conditions in this claim during this period.
Specifically, the Staff [sic] Hearing Officer finds the serial
MEDCO-14s Physician's Reports of Work Ability covering
this period and completed by Mark Drake, D.C. all indicate
that in Dr. Drake's opinion the Injured Worker's temporary
total disability is attributable, at least in part, to conditions
specifically disallowed in this claim. The Staff [sic] Hearing
Officer cites the MEDCO-14 signed by Dr. Drake on
10/27/2014 in which Dr. Drake opines the Injured Worker is
temporarily and totally disabled as a result of a right
shoulder sprain and notes in his corresponding office note,
dated 10/11/2014, that the Injured Worker was there for
continuing treatment and evaluation involving the cervical
spine and right shoulder and that the right knee was
specifically not the focus of the visit. Similarly, the Staff [sic]
Hearing Officer cites the MEDCO-14, signed by Dr. Drake on
09/20/2014 which cites the disallowed right shoulder sprain
as a disabling condition; the MEDCO-14 completed on
08/20/2014 citing both the disallowed cervical and right
upper extremity conditions and the previously cited
MEDCO-14, signed 10/27/2014.
{¶ 22} Thereafter, the DHO stated that, if relator presented sufficient medical
evidence, the commission would consider whether he was entitled to an award of TTD
compensation from May 7 through May 19, 2015, stating:
The Staff [sic] Hearing Officer notes the Injured Worker
returned to his surgeon, Mark D'Onofrio, M.D. on
05/17/2015. On this visit Dr. D'Onofrio noted that physical
therapy had just been approved and indicated that the
Injured Worker needed to complete this physical therapy
No. 15AP-909 9
with the possibility of vocational rehabilitation at that time
and went on to note the Injured Worker was not able to work
as he had not had appropriate physical therapy to address
his right knee medial meniscal tear. Accordingly, and based
on this office note, the Staff [sic] Hearing Officer finds that
consideration of payment of temporary total disability
compensation from 05/07/2015 through 05/19/2015 shall
be considered upon submission of appropriate certification
of disability stemming from the allowed conditions in this
claim during this period.
{¶ 23} Thereafter, the DHO determined that TTD compensation was appropriate
from May 20 through May 26, 2015, stating:
Temporary total disability compensation is awarded from
05/20/2015 through 05/26/2015 and shall continue to be
paid upon submission of appropriate certification and proof
of disability stemming from the allowed conditions in this
claim. This period of temporary total disability compensation
is based on the MEDCO-14 completed by Dr. Drake on
05/20/2015 which predicates disability based solely on the
allowed conditions in this claim.
{¶ 24} 12. Relator's appeal was heard before an SHO on July 7, 2015. The SHO
affirmed the prior DHO order finding that relator was not entitled to an award of TTD
compensation from August 31 through May 6, 2015, stating:
Temporary total disability compensation remains denied for
the closed period 08/31/2014 through 05/06/2014 [sic], on
a finding that the Injured Worker has not satisfied his
burden of proving that he was temporarily and totally
disabled independently by the allowed conditions in the
claim. It is particularly noted that the allowed conditions in
the claim are limited to right knee medial meniscus tear and
right knee sprain, and that the claim has been explicitly
disallowed for cervical sprain and right shoulder sprain. The
medical records in the file clearly show that the Injured
Worker was being treated for all of these conditions
throughout the period in question. The Injured Worker's
obligation is to demonstrate to [sic] that he was
independently disabled by the allowed conditions in the
claim, without consideration being given to the conditions
which have been disallowed. The records over the period for
which compensation is denied do not demonstrate that the
No. 15AP-909 10
Injured Worker was independently disabled by the allowed
conditions.
The Injured Worker submits several MEDCO-14 Physician's
Reports of Work Ability from Mark Drake, D.C. Dr. Drake
lists both allowed and non allowed conditions, and when
asked the question, "Is this condition causing temporary
disability?" in each of the cases of MEDCO-14s covering the
period which has been denied indicates for some or all of the
non allowed conditions that they are causing temporary
disability. Typical of this, is the 10/27/2014 MEDCO-14 and
the corresponding office note of 10/11/2014.
Counsel for the Injured Worker argued that the certification
on the MEDCO-14 of a condition with a box checked
indicating that it is temporarily and totally disabled is a
statement that that condition, operating separately and
without consideration of the other conditions listed, causes a
temporary and total disability, for each one of the conditions
so marked on the form. This is not consistent with the design
of the form itself, and is not an unambiguous statement. This
is particularly true since the form itself, as a separate section
of the same question, asks the treating physician to list all
other conditions being treated.
{¶ 25} Thereafter, as the DHO found, the SHO concluded that relator may be
entitled to TTD compensation from May 7 through May 19, 2015, and specifically
awarded him TTD compensation from May 20 through May 26, 2015 and continuing
upon submission of appropriate proof:
The Injured Worker was seen by his surgeon, Mark
D'Onofrio, M.D., on 05/17/2015. Dr. D'Onofrio's note from
that date of treatment states that the Injured Worker was not
able to work because he had not completed an adequate
course of physical therapy with regard to his right knee
medial meniscus tear, consequently, for the period
05/07/2015 through 05/19/2015, temporary total may be
considered upon presentation of appropriate proof.
Finally, the temporary total disability compensation is
awarded from 05/20/2015 through 05/26/2015, to continue
upon presentation of appropriate proof. This award is based
upon the 05/20/2015 MEDCO-14 from Dr. Drake, which
does state the Injured Worker was independently disabled
solely by the allowed conditions in the claim.
No. 15AP-909 11
{¶ 26} 13. Relator's further appeal was refused by order of the commission
mailed July 28, 2015.
{¶ 27} 14. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 28} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
{¶ 29} The Supreme Court of Ohio has set forth three requirements which must
be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal
right to the relief prayed for; (2) that respondent is under a clear legal duty to perform
the act requested; and (3) that relator has no plain and adequate remedy in the ordinary
course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 30} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show 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 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse
of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond
Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, 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).
{¶ 31} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where 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 occurs: (1) claimant has returned to work; (2)
claimant's treating physician has made a written statement that claimant is able to
return to the former position of employment; (3) when work within the physical
capabilities of claimant is made available by the employer or another employer; or (4)
No. 15AP-909 12
claimant has reached MMI. See R.C. 4123.56(A); State ex rel. Ramirez v. Indus.
Comm., 69 Ohio St.2d 630 (1982).
{¶ 32} Relator asserts that the commission abused its discretion arguing that all
of the relevant medical evidence clearly demonstrates that he was temporarily and
totally disabled during the relevant time periods as a result of the allowed conditions in
his claim. Relator argues that Dr. Drake repeatedly opined that post-surgical therapy
for his knee was necessary and that the Medco-14s completed by Dr. Drake support a
finding that the allowed conditions for his right knee disabled him independently of any
disability which was caused by the non-allowed right shoulder condition.
{¶ 33} It is undisputed that an award of TTD compensation cannot be based on
non-allowed conditions. See State ex rel. Chrysler Corp. v. Indus. Comm., 81 Ohio
St.3d 158 (1998). Where a claimant has both allowed and non-allowed conditions, the
commission must determine to what extent, if any, the non-allowed or disallowed
conditions contribute to a claimant's disability under State ex rel. Waddle v. Indus.
Comm., 67 Ohio St.3d 452 (1993).
{¶ 34} As noted in the findings of fact, Dr. Drake submitted several Medco-14s
certifying that relator was temporarily and totally disabled. On each of those forms, Dr.
Drake was asked to list all the conditions being treated which were caused by the work-
related injury. On each form, Dr. Drake specifically indicated that he was treating
relator for injuries to his neck, right shoulder, and right knee. Further, on each Medco-
14, Dr. Drake noted that the conditions affecting relator's neck were not causing
temporary total disability. However, on each Medco-14, Dr. Drake specifically noted
that relator's right shoulder and right knee were conditions causing him to be
temporarily and totally disabled. Additionally, as noted in the findings of fact, each
report/office note which accompanies Dr. Drake's Medco-14s begins with a discussion of
relator's cervical spine and his right shoulder. The right knee condition is always the
last condition discussed by Dr. Drake and he does not provide treatment. In the
October 11, 2014 report, Dr. Drake specifically notes that the additional injury affecting
relator's right knee was not the primary focus of his visit.
{¶ 35} Although relator asserts that the Medco-14s indicate that each of the
conditions (right shoulder and right knee) independently rendered him temporarily and
No. 15AP-909 13
totally disabled, the commission did not find this evidence to be persuasive. Instead, the
commission rejected relator's argument because the Medco-14 provides a space for the
treating physician to indicate what work-related injuries were being treated, whether or
not they were disabling, and provides a separate section for the treating physician to list
all other conditions being treated.
{¶ 36} It is undisputed that relator's claim was specifically disallowed for both
cervical and right shoulder conditions. As such, neither of those two conditions are, for
purposes of his workers' compensation claim, being treated due to his work-related
injury. Instead, those two conditions are not allowed in the claim and should be listed
under the section of the form asking the treating physician to list all other conditions
being treated. The magistrate finds that the commission's interpretation and analysis of
the form is reasonable and does not constitute an abuse of discretion. There simply is
no indication on the forms or in Dr. Drake's reports from which one could conclude that
the allowed right knee condition independently rendered relator temporarily and totally
disabled.
{¶ 37} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied his request for
temporary total disability compensation and this court should deny his request for a
writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA
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).