State ex rel. Casey v. Indus. Comm'n of Ohio

Decision Date24 February 2022
Docket Number20AP-247
PartiesState of Ohio ex rel. Janet A. Casey, Relator, v. Industrial Commission of Ohio et al., Respondents.
CourtOhio Court of Appeals

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

On brief:

The Bainbridge Firm, LLC, and Casaundra L. Johnson, for relator.

Dave Yost, Attorney General, and Denise A. Gary, for respondent Industrial Commission of Ohio.

DECISION

DORRIAN, J.

{¶ 1} Relator, Janet A. Casey, has filed this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying Casey's request for the remaining 50 weeks of compensation for loss of use of her left lower extremity, and to enter an order awarding such compensation.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommends this court deny Casey's request for a writ of mandamus.

{¶ 3} Casey has filed the following two objections to the magistrate's decision:

[I.] The magistrate erred in finding that the Staff Hearing Officer's finding that this Court affirmed the May 3 2012 Staff Hearing Officer order that denied a prior request for functional loss of use of the left lower extremity was a harmless error.
[II.] The magistrate erred in finding that the Staff Hearing Officer properly concluded that the request for total loss of use of the left lower extremity was res judicata and that there was insufficient basis to exercise continuing jurisdiction.

{¶ 4} On May 24, 2003, Casey sustained a work-related injury during the course of her employment with respondent Wheeler Enterprises, Inc. Casey's workers' compensation claim was allowed for contusion left foot contusion left lower leg; left foot reflex sympathetic dystrophy; depressive disorder; and generalized anxiety disorder. Casey filed a motion requesting compensation for the functional loss of use of her left lower extremity on January 3, 2006. A district hearing officer ("DHO") denied the motion.

{¶ 5} On June 13, 2006, a staff hearing officer ("SHO") affirmed the DHO's order and denied Casey's motion. The SHO concluded Casey did not have a functional loss of use of her left lower extremity, as Casey was able to walk using her left leg. The commission refused further appeal, and Casey filed a complaint in mandamus asking this court to order the commission to vacate the June 13, 2006 SHO order. On September 6, 2007, in State ex rel. Casey v. Indus. Comm., 10th Dist. No. 06AP-1251 2007-Ohio-4591, this court denied Casey's request for a writ of mandamus.

{¶ 6} On August 2, 2007, the Ohio Bureau of Workers' Compensation ("BWC") issued an order finding that Casey had sustained a 100 percent loss of use of the left ankle due to ankylosis. The BWC awarded Casey permanent partial compensation for 150 weeks. On April 15, 2010, a DHO granted Casey's request for a power mobility wheelchair and car lift. The DHO found the motorized wheelchair medically reasonable and necessary as Casey's allowed conditions had "greatly affected her ability to ambulate." (Stip.R. at 91.)

{¶ 7} On October 27, 2011, Casey filed a motion requesting the remaining 50 weeks of compensation for functional loss of use of her left lower extremity. See R.C. 4123.57(B) (providing that "[f]or the loss of a leg," an injured worker may receive compensation for "two hundred weeks"). Casey supported the motion with reports from Sue Westfall, M.D., which stated that Casey had "essentially nearly lost the use of her left lower extremity" and that Casey walked "very slowly relying on a walker." (Stip.R. at 94, 96.) Prasadarao B. Mukkamala, M.D., examined Casey on December 15, 2011 at the request of the BWC. Dr. Mukkamala found "no evidence of total permanent loss of use of the left lower extremity" as Casey "was able to ambulate with the use of a walker." (Stip.R. 122.) A DHO denied Casey's October 27, 2011 motion.

{¶ 8} On May 3, 2012, an SHO affirmed the DHO's order and denied Casey's October 27, 2011 motion. The SHO concluded that the commission had continuing jurisdiction to address Casey's motion, as the August 2, 2007 award for loss of use of the left ankle and the April 15, 2010 authorization for a motorized wheelchair constituted new and changed circumstances since the June 13, 2006 SHO order. The SHO relied on the reports from Drs. Mukkamala and Westfall to conclude that Casey had not lost the functional use of her left leg. The commission refused Casey's appeal from the SHO's May 3, 2012 order, and Casey did not pursue further review.

{¶ 9} On February 6, 2019, Casey filed a motion requesting the remaining 50 weeks of compensation for functional loss of use of her left leg above the knee. Casey supported the motion with a January 24, 2019 report from Dr. Westfall, stating that Casey was "in a wheel chair and [could] self propel with her arms, but [was] unable to use her legs for that." (Stip.R. at 212.) Dr. Westfall stated that Casey had "total loss of function of the left leg." (Stip.R. at 212.)

{¶ 10} Donato Borrillo, M.D., examined Casey on March 1, 2019 and concluded that Casey had suffered a functional loss of use of the left lower extremity. Joseph Grady, M.D., examined Casey on April 9, 2019 at the request of the BWC. Dr. Grady concluded Casey did not have "permanent loss of the entirety of the left leg such as completely useless," as she was "able to stand" on her left leg and to "transfer from bed to chair and between different chairs." (Stip.R. at 363.)

{¶ 11} On June 1, 2019, a DHO denied Casey's February 6, 2019 motion. On August 1, 2019, an SHO affirmed the DHO's order and denied Casey's February 6, 2019 motion. The SHO stated that the May 3, 2012 SHO order "previously denied the Injured Worker's request for a functional loss of use of the left lower extremity" and that the "[SHO's] decision was affirmed by the Tenth District Court of Appeals." (Stip.R. 375.) The SHO did not find a "sufficient basis to exercise continuing jurisdiction to alter that previous Staff Hearing Officer finding." (Stip.R. at 375.) As such, the SHO found Casey's 2019 motion for loss of use of the left leg barred by res judicata.

{¶ 12} Casey attempted to appeal the SHO's August 1, 2019 order, but the commission refused further appeal. Casey filed a complaint in mandamus with this court on April 28, 2020.

{¶ 13} In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, the 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), paragraph one of the syllabus; State ex rel. Elliot v. Indus. Comm., 26 Ohio St.3d 76, 78 (1986). 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 some evidence. Elliot at 79, citing State ex rel. Hutton v. Indus. Comm., 29 Ohio St.2d 9, 13 (1972).

{¶ 14} Casey's first objection asserts the magistrate erred by finding the statement in the SHO's August 1, 2019 order, indicating that this court upheld the May 3, 2012 SHO order, to be harmless error. The magistrate noted that the SHO erred, as Casey upheld the June 13, 2006 order, not the May 3, 2012 order. The magistrate found the error harmless because, regardless of whether this court affirmed the SHO's May 3, 2012 order, the May 3, 2012 order denied Casey's request for a functional loss of use of the left lower extremity and rendered the issue res judicata. Indeed, as the May 3, 2012 order was a final order of the commission, the order rendered the loss of use of the left leg issue res judicata. See State ex rel. Tantarelli v. Decapua Ents., Inc., 156 Ohio St.3d 258, 2019-Ohio-517, ¶ 14 (stating that "a prior final order by the commission can become res judicata in future proceedings before the commission").

{¶ 15} Casey fails to demonstrate that, absent the SHO's reference to the May 3, 2012 order being upheld by this court, the outcome of the proceedings would have differed. As such, the magistrate properly found the SHO's mistaken reference to the May 3, 2012 order being upheld by this court to be harmless error. See Civ.R. 61 (providing that a court "must disregard any error or defect in the proceeding which [did] not affect the substantial rights of the parties"); Theobald v. Univ. of Cincinnati, 160 Ohio App.3d 342, 2005-Ohio-1510, ¶ 17 (10th Dist.) (stating that "[w]hen avoidance of the error would not have changed the outcome of the proceedings, then the error neither materially prejudices the complaining party nor affects a substantial right of the complaining party"). Casey's first objection is overruled.

{¶ 16} Casey's second objection asserts the magistrate erred by upholding the commission's conclusion that Casey's 2019 request for loss of use of the left lower extremity was barred by res judicata. The magistrate observed that the SHO's May 3, 2012 order relied on Dr Mukkamala's 2011 report, which found that Casey could stand, balance, and ambulate using her left leg. The magistrate further observed that, although Dr. Westfall's January 24, 2019 report indicated Casey was in a wheelchair, Dr. Westfall did not state that Casey could no longer use her left leg to stand, balance, or ambulate. The magistrate noted that Dr. Westfall also did not explain how Casey's condition had deteriorated or why Casey's left leg was any different in 2019 than it was in 2006 or 2012. As such, the magistrate found no...

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