State ex rel. Decapua Enters. v. Wolfe

Decision Date09 November 2021
Docket Number20AP-174
Citation2021 Ohio 3987
PartiesState ex rel. DeCapua Enterprises, Inc., Relator, v. Micaela L. Wolfe et al., Respondents.
CourtOhio Court of Appeals


State ex rel. DeCapua Enterprises, Inc., Relator,

Micaela L. Wolfe et al., Respondents.

No. 20AP-174

Court of Appeals of Ohio, Tenth District

November 9, 2021


Michael Soto, for relator.

Larrimer and Larrimer, and Thomas L. Reitz, for respondent Micaela L. Wolfe.

Dave Yost, Attorney General, and Anna Isupova, for respondent Industrial Commission of Ohio.



{¶ 1} Relator, DeCapua Enterprises, Inc., has filed this original action seeking a writ of mandamus to order respondent, Industrial Commission of Ohio ("commission"), to vacate an order of its staff hearing officer ("SHO") that awarded temporary total disability ("TTD") compensation to respondent, Micaela L. Wolfe ("Wolfe" or "claimant"), and authorized payment for additional medical services in connection with Wolfe's allowed conditions.


{¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53 and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, recommending that this court deny the requested writ.

{¶ 3} Relator has filed objections to the magistrate's decision, arguing the magistrate erred in: (1) wrongly applying pregnancy discrimination law and overstating the commission's discretion, (2) misapplying the facts and law regarding the injured worker's eligibility to receive TTD compensation, (3) ignoring the Supreme Court of Ohio's holding in State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649 (1994), and (4) accepting the SHO's approval of an electromyography ("EMG") of the lower extremity.

{¶ 4} We initially address relator's (second) objection challenging the magistrate's conclusion that the record contains some evidence upon which the commission could rely to support an award of TTD compensation. Relator contends the medical evidence relied upon by the commission is contrary to various legal principles, including the failure to differentiate between allowed and non-allowed conditions and a reliance on internally inconsistent medical reports.

{¶ 5} Here, the SHO determined the injured worker was experiencing left lower extremity issues that had worsened in spite of surgery and other treatment modalities. The SHO noted that, after Wolfe's "initial surgery in April, 2017, the Injured Worker developed Left Lower Extremity DVT, which is an allowed condition in this claim." (SHO Order at 2.) The SHO further found that, despite being initially released to return to work, Wolfe's lower left extremity issues "continued and worsened, causing her to seek treatment at the emergency room on 05/01/2017." (SHO Order at 2.)

{¶ 6} In granting the claimant's request for TTD compensation, the order of the SHO cited the evidence relied on, including: (1) a C-9 dated 1/29/2019 from Dr. Jonathan Feibel (the physician who performed surgery on claimant in 2017), (2) a treatment note, dated 1/28/2019, from Lacie Baker, PA-C (noting in part "[l]eft ankle swelling" and "pain over the peroneal tendons on the left," as well as a physician's statement to Baker that MRI findings indicated "some of the signal in the tendons could be scarring from the previous surgery but some however could be new tearing at the tendon"), (3) the January 11, 2019 MRI Interpretive Report (noting split-tear of the tendon), (4) the 2/20/2019 MEDCO-14 of


Dr. Feibel, and (5) three MEDCO-14 forms completed by Dr. Jason A. Reed, dated respectively 6/25/2019, 10/16/2019 and 1/2/2020, indicating Wolfe's conditions of peroneal tendon tear and sprain of left ankle were conditions causing temporary disability.

{¶ 7} The decision of the magistrate sets forth detailed findings of fact based on the stipulated record, including the finding that, in the interim between the claimant's appeal of the order of the district hearing officer and the hearing before the SHO, "Wolfe underwent further examination by Dr. Reed, who summarized his treatment with the conclusion that Wolfe's symptoms had worsened since her surgery." (Appended Mag. Decision at ¶ 47.) In addressing the "conflicting evidence" with respect to Wolfe's medical treatment and the conclusions of the examining physicians, the magistrate concluded the commission had full discretion to rely on the reports of Drs. Reed and Feibel (in favor of those offered by Dr. Michael Rozen and Dr. Paul Freedman), and to rely on Dr. Reed's "continued assessment that Wolfe could not return to work based upon the allowed conditions." (Appended Mag. Decision at ¶ 60.)

{¶ 8} On review, we conclude, as did the magistrate, there was some medical evidence supporting the commission's conclusion that Wolfe was unable to return to work due to her allowed conditions. Accordingly, we find unpersuasive relator's contention the magistrate misapplied the facts and law in addressing the commission's decision to award the claimant TTD compensation, and we overrule relator's second objection.

{¶ 9} Under its third objection, relator contends the magistrate ignored the Supreme Court's decision in Eberhardt. Specifically, relator cites language from that decision indicating the commission's discretion in determining the weight and credibility of the medical reports admitted into evidence "is not unbounded," and that "there must be some reasonable basis for the commission's rejection of a physician's finding." Eberhardt at 655. According to relator, the rejection of the reports of Drs. Rozen and Freedman are violative of Eberhardt because, unlike the evidence cited by the SHO, "the opinions of these physicians are supported by the facts and Stipulated Evidence." (Relator's Objs. at 14.)

{¶ 10} In context, the passages cited by relator address the Supreme Court's recognition that "contradictory or equivocal statements by the same physician cannot, as a matter of law, support an award of compensation," Eberhardt at 656, and that "equivocal medical opinions are not evidence." Id. at 657. This court has recognized that Eberhardt


itself "merely stands for the proposition that, 'where a physician renders an ambiguous opinion regarding a claimant's medical condition but thereafter clarifies the ambiguity, the Industrial Commission may not revive the ambiguity as a basis for rejecting the physician's opinion.'" State ex rel. Ward v. Dorman Prods., 10th Dist. No. 05AP-28, 2005-Ohio-5425, ¶ 4, quoting Eberhardt at paragraph two of the syllabus.

{¶ 11} While the magistrate in this action acknowledged the record was "replete with conflicting evidence," the magistrate further recognized the commission "remains the arbiter of weight and probative value of such evidence," and that it was not the magistrate's role in a mandamus action to "reweigh the evidence" and reject the reports of Drs. Reed and Feibel in favor of those of Drs. Freedman and Rozen. (Appended Mag. Decision at ¶ 60.) We agree and find unpersuasive relator's contention that the reports relied on by the SHO, and discussed by the magistrate, run contrary to the holding in Eberhardt. Finding no merit with relator's argument, we overrule the third objection.

{¶ 12} Under its first objection, relator contends the magistrate erred in considering state and federal pregnancy discrimination law when addressing the issue of voluntary abandonment. Relator notes the magistrate raised pregnancy discrimination related concerns in the context of analyzing the Supreme Court's decision in State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890, ¶ 29, in which the Supreme Court overruled two prior decisions (State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio-499, and State ex rel. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951), and held in part: "[W]hen a workers' compensation claimant voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury, he is no longer eligible for temporary-total-disability compensation, even if the claimant remains disabled at the time of his separation from employment."

{¶ 13} Relator maintains none of the parties in the instant action "ever grounded its position" on the injured worker's pregnancy, and that "any discussion or application of pregnancy discrimination law is irrelevant to the issue before the Court." (Relator's Objs. at 5-6.) Relator further contends the SHO's conclusion that Wolfe had not abandoned the workforce is not supported by any evidence.


{¶ 14} While we do not find the magistrate's analysis of pregnancy discrimination law dispositive, we disagree with relator's argument that there is no evidence to support the SHO's finding Wolfe had not abandoned the workforce. In this respect, the magistrate noted the commission "addressed the question of voluntary abandonment and assessed the evidence addressing the interplay between physical impact of the allowed conditions and a subsequent pregnancy in weighing whether one or the other had prevented Wolfe from returning to work." (Appended Mag. Decision at ¶ 74.) We agree, and find the record supports the commission's rejection of relator's assertion that claimant voluntarily abandoned her employment.

{¶ 15} Here, while the SHO recognized the fact "the Injured Worker was pregnant and did have a baby," the SHO further concluded "her issues due to surgery, but occurring before her pregnancy[, ] are documented in the claim file." (SHO Order at 2.) In support of the determination Wolfe had not voluntarily abandoned the workforce based on worsening medical issues due to surgery, the SHO cited the evidence relied on including the treatment note of Natalie Wyss, PA-C, the treatment report of Lacie Baker, PA-C, as well as the initial report of Dr. Reed.

{¶ 16} While we find the magistrate's discussion of state and federal discrimination...

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