State ex rel. Heffernan v. Melrose Capital L.L.C., 2007 Ohio 6532 (Ohio App. 12/4/2007)
| Decision Date | 04 December 2007 |
| Docket Number | No. 06AP-1135.,06AP-1135. |
| Citation | 2007 Ohio 6532 |
| Parties | State of Ohio ex rel. Scott M. Heffernan, Relator, v. Melrose Capital LLC and Industrial Commission of Ohio, Respondents. |
| Court | Ohio Court of Appeals |
Patrick J. Alcox, for relator.
Marc Dann, Attorney General, Stephen D. Plymale and Derrick Knapp, for respondent, Industrial Commission of Ohio.
DECISION
{¶1} In this original action, relator, Scott M. Heffernan, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying him temporary total disability ("TTD") compensation, and to enter an order granting said compensation. In the alternative, relator requests a writ of mandamus ordering the commission to vacate its order denying him R.C. 4123.56 wage loss compensation, and to enter an order granting said compensation.
{¶2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(D) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate examined the evidence and issued a decision (attached as Appendix A), including findings of fact and conclusions of law. Therein, the magistrate concluded (1) that relator cannot show eligibility for TTD compensation during the hockey off-seasons; (2) the commission did not abuse its discretion in denying wage loss compensation; and (3) the commission did abuse its discretion in determining that the industrial injury has become permanent and that the medical evidence itself is insufficient to support TTD compensation. Therefore, the magistrate recommended that this court issue a writ of mandamus ordering the commission to vacate its order to the extent that it determines that the industrial injury has become permanent and that the medical evidence itself is insufficient to support TTD compensation.
{¶3} Both the relator and the commission filed objections to the magistrate's decision. Relator objects to the magistrate's conclusion that relator cannot show eligibility for TTD compensation during the hockey off-seasons for various time periods. Relator's objections, however, essentially contain a reargument of that already submitted to and addressed by the magistrate. For the reasons set forth in the magistrate's decision, we do not find relator's position to be well-taken. Consequently, relator's objections are overruled.
{¶4} The commission contends the magistrate needlessly found the commission abused its discretion because the issue of permanency was a secondary finding by the commission and has no bearing on relator's entitlement to TTD compensation for the time periods at issue in this case. The commission further contends that relator did not ask for the relief the magistrate recommends, and that the concerns of the magistrate in this instance are purely hypothetical. Upon review, and for the reasons set forth in the magistrate's decision, we do not find the commission's position to be well-taken. Accordingly, we overrule the commission's objection to the magistrate's decision.
{¶5} Following an independent review of the matter, we find that the magistrate has properly determined the facts and applied the appropriate law. Therefore, the commission's and relator's objections to the magistrate's decision are overruled, and we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we issue a writ of mandamus ordering the commission to vacate its staff hearing officer's order of March 1, 2005, to the extent that it denies TTD compensation on grounds that the industrial injury has become permanent or has reached maximum medical improvement and to the extent that it finds the medical evidence itself to be insufficient and to enter an amended order that denies TTD compensation solely on grounds that relator was ineligible to receive said compensation during the hockey off-seasons in the absence of evidence that he intended to obtain other employment.
Objections overruled; writ of mandamus issued.
MAGISTRATE'S DECISION
Rendered on July 20, 2007
Patrick J. Alcox, for relator.
Marc Dann, Attorney General, Stephen D. Plymale and Derrick Knapp, for Industrial Commission of Ohio.
{¶6} In this original action, relator, Scott M. Heffernan, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying him temporary total disability ("TTD") compensation, and to enter an order granting said compensation. In the alternative, relator requests that the writ order the commission to vacate its order denying him R.C. 4123.56 wage loss compensation, and to enter an order granting said compensation.
Findings of Fact:
{¶7} 1. On October 25, 2002, relator sustained an industrial injury while employed as a professional hockey player for respondent Melrose Capital LLC ("employer"), dba Dayton Hockey Club, aka Dayton Bombers. The employer is a state-fund employer. On that date, relator was struck on the head by a hockey stick while playing in a hockey game. The employer certified the claim, which was initially allowed for "concussion" and was assigned claim number 02-459085.
{¶8} 2. Earlier, in June 2002, relator had signed a three-year contract with COLHOC Limited Partnership, dba Columbus Blue Jackets. The Columbus Blue Jackets ("Blue Jackets") are a National Hockey League team.
{¶9} 3. The Blue Jackets assigned relator to play the 2002/2003 hockey season with the Dayton Bombers, a minor league team that plays in the East Coast Hockey League. Relator was playing professional hockey in Dayton, Ohio, when the injury occurred.
{¶10} 4. Under the terms of his contract, the Blue Jackets were obligated to pay relator a salary in consecutive semi-monthly installments with the commencement of the regular hockey season and continuing to each seasons end.
{¶11} 5. The 2002/2003 hockey season ran from early October 2002 to the end of March 2003. The 2003/2004 and 2004/2005 hockey seasons ran from early October to early April. Thus, the hockey seasons ran for approximately six months followed by a six-month off-season.
{¶12} 6. On October 29, 2002, four days after his injury, relator was examined by James Tytko, M.D., at the Kettering Sports Medicine Center in Kettering, Ohio. Dr. Tytko wrote:
* * * The patient is a Dayton Bomber who comes in with a chief complaint of a concussion. On 10-24 [sic] he was playing hockey and he took a high stick to the right side of his jaw and went down on the ice. He had immediate headache, dizziness, confusion, and some slight amnesia. Jason was present at the game and he examined him. He did not have any loss of consciousness. He was taken off the ice. He was somewhat ataxic and had persistent headache and was observed on the sidelines in the bench for quite some time. His symptoms gradually cleared, although they did not completely resolve. He has had 2 concussions previously. One was in 1988 and one in 1999. He has had no permanent residual effects of these two concussions. He has been asymptomatic since his last one. Today which is four days after the concussion, he is feeling significantly better. Each day is better, although he still wakes up with a slight headache and he was kind of foggy in the head for the first few days. Cognitively, he seems to be fine. Jason gave him the standard assessment, a concussion initially and he didn't do as well as in the preseason. He is going to readminister that in the future.
* * *
His symptoms of confusion and dizziness lasted greater than 15 minutes, but less than 1 hour, so; therefore, according to the Academy of Neurology, he had a grade 2 concussion. We talked about the potential nature of this, the potential ongoing symptoms.
PLAN: He is going to stay out of hockey this week. Following next week, which will be 10-14 days following his concussion, he is going to start exerting himself under the guidance of Jason. If he can exert himself without a recurrence of his symptoms and he is completely asymptomatic, then he can return to hitting. * * * {¶13} 7. On November 8, 2002, Dr. Tytko wrote:
* * * Because of his persistence of his headaches, we went ahead and did an MRI of his brain. The MRI of his brain is essentially normal, except he has just a borderline chiari 1 type malformation of the base of the brain. I called the radiologist and he said it just barely fits the criteria of a chiari malformation and there doesn't seem to be any tightness in the foramen magnum, but he feels that he has it. Because of this situation and the history of concussions and the fact that he is in a very demanding sport, we are going to send him to Dr. Poelstra, a neurosurgeon to get further clearance. I talked to Jason and he understands and since he is still having concussive symptoms, I think he shouldn't participate at this point.
{¶14} 8. On November 19, 2002, at the Blue Jackets' request, relator was examined by R.A. Bornstein, Ph.D., at The Ohio State University, Department of Psychiatry. Dr. Bornstein wrote:
Scott Heffernan was seen today for a neuropsychological evaluation in relation to his most recent concussion which occurred approximately three and one-half weeks ago. As you know, he has had persistent intermittent headache and did initially have some problems with dizziness, ringing in his ears, mental slowing and cloudiness. Those symptoms resolved within the first several...
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