State ex rel. Omni Manor, Inc. v. Indus. Comm'n of Ohio

Decision Date16 September 2020
Docket NumberNo. 2019-1134,2019-1134
Citation162 Ohio St.3d 264,165 N.E.3d 273
Parties The STATE EX REL. OMNI MANOR, INC., Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.
CourtOhio Supreme Court

Manchester, Newman & Bennett, L.P.A., and Thomas F. Hull II, Youngstown, for appellant.

Dave Yost, Attorney General, and Kevin J. Reis, Assistant Attorney General, for appellee Industrial Commission of Ohio.

Green, Haines, Sgambati Co., L.P.A., and Shawn D. Scharf, Youngstown, for appellee Diana Garringer.

Per Curiam.

{¶ 1} Appellant, Omni Manor, Inc., asked the Tenth District Court of Appeals for a writ of mandamus ordering appellee Industrial Commission to vacate an award of medical-service reimbursement to appellee Diana Garringer for a right reverse total-shoulder arthroplasty. The Tenth District denied the writ. Omni Manor asks this court to reverse that judgment. It also requests oral argument. We affirm the Tenth District's judgment denying the writ, and we deny Omni Manor's motion for oral argument.


{¶ 2} In April 2016, while working as a housekeeper for Omni Manor, Garringer injured her right shoulder helping a coworker lift a couch. Her workers' compensation claim was initially allowed for right-shoulder sprain. Garringer moved to add right-shoulder rotator-cuff tear as an allowed condition. Omni Manor opposed the request, asserting that the torn rotator cuff was the result of a degenerative condition and predated Garringer's work injury. The commission disagreed and granted the request to add rotator-cuff tear as an allowed condition. Omni Manor did not exercise its right to appeal that decision to the court of common pleas under R.C. 4123.512(A).

{¶ 3} In August 2016, Garringer filed a "C-9 form" containing a request for medical-service reimbursement for a reverse total-shoulder arthroplasty, based on medical reports by Dr. Robert Piston and Dr. David Tonnies.1 Dr. Piston's report described the results of an MRI of Garringer's right shoulder, which showed several rotator-cuff tears as well as some atrophy of the muscle fibers.

{¶ 4} Dr. Tonnies's report noted that x-rays had shown degenerative changes and that the MRI showed both a "massive rotator cuff tear" and evidence of muscle atrophy. He made three diagnoses: right-shoulder rotator-cuff tear, right-shoulder degenerative joint disease, and right-shoulder rotator-cuff arthropathy.2 Of those three conditions, only the rotator-cuff tear was an allowed condition in Garringer's workers' compensation claim. Dr. Tonnies concluded, "The patient has a massive tear of the rotator cuff with retraction. The patient already has muscle atrophy. A primary repair of the rotator cuff is unlikely at this time secondary to the degree of involvement. Her best option would be that of a reverse total shoulder arthroplasty."

{¶ 5} In May 2017, Omni Manor referred Garringer for an independent medical examination by Dr. Oscar Sterle. Dr. Sterle noted that Garringer suffered from a right-shoulder rotator-cuff tear as well as degenerative conditions affecting her right shoulder. He agreed that the rotator-cuff tear "was deemed to be irreparable, with arthritis of the glenohumeral joint (ball and socket)." Yet he opined that the recommended reverse total-shoulder arthroplasty was not medically necessary and not appropriate to treat the allowed conditions, was not reasonably related to Garringer's industrial injury, and was instead appropriate for treating her preexisting degenerative conditions. However, Dr. Sterle also stated his belief that Garringer's rotator-cuff tears were also preexisting and degenerative and not the result of her work injury—an issue that the commission had already decided to the contrary when it approved right-shoulder rotator-cuff tear as an allowed condition.

{¶ 6} In August 2017, the commission granted Garringer's reimbursement request. The commission concluded, based on Dr. Tonnies's C-9 form and medical report, that a reverse total-shoulder arthroplasty was "reasonably related to and reasonably necessary for the treatment of the allowed conditions."

{¶ 7} Omni Manor asked the Tenth District Court of Appeals to issue a writ of mandamus ordering the commission to vacate its order granting Garringer's reimbursement request. A magistrate recommended that the Tenth District deny the writ. 2019-Ohio-2521, 2019 WL 2605181, ¶ 2. Omni Manor objected, arguing that Dr. Tonnies's report and C-9 form did not constitute some evidence supporting the authorization of the reverse total-shoulder arthroplasty, id. at ¶ 9, and that the magistrate failed to analyze whether the arthroplasty was "independently required for an allowed condition," id. at ¶ 13, citing State ex rel. Griffith v. Indus. Comm. , 87 Ohio St.3d 154, 156, 718 N.E.2d 423 (1999). The court overruled Omni Manor's objections, found that the reverse total-shoulder arthroplasty was independently required for the rotator-cuff tear, and denied the request for a writ of mandamus. Id. at ¶ 13, 15. Omni Manor appealed.

{¶ 8} Omni Manor asserts two propositions of law: (1) the court of appeals erred when it failed to require Garringer to prove to the commission that the reverse total-shoulder arthroplasty was "independently required" before the commission allowed the condition of right-shoulder rotator-cuff tear and (2) the court of appeals erred when it found that Dr. Tonnies's "equivocal" report constituted some evidence in support of the commission's determination to authorize treatment. Omni Manor has filed a motion for oral argument on these propositions; no responses were filed.

A. Mandamus Standard

{¶ 9} Mandamus relief is appropriate only if the relator establishes "a clear legal right to the relief requested, a clear legal duty on the part of the commission * * * to provide the relief, and the lack of an adequate remedy in the ordinary course of the law." State ex rel. Baker v. Indus. Comm. , 143 Ohio St.3d 56, 2015-Ohio-1191, 34 N.E.3d 104, ¶ 12. In matters before it, the commission is the exclusive evaluator of the weight and credibility of the evidence. State ex rel. LTV Steel Co. v. Indus. Comm. , 88 Ohio St.3d 284, 287, 725 N.E.2d 639 (2000). Therefore, "[t]o be entitled to an extraordinary remedy in mandamus, the relator must demonstrate that the [commission] abused its discretion by entering an order not supported by any evidence in the record."

State ex rel. WFAL Constr. v. Buehrer , 144 Ohio St.3d 21, 2015-Ohio-2305, 40 N.E.3d 1079, ¶ 12. The relator must make that showing by clear and convincing evidence. Id.

B. Arguments of the Parties

{¶ 10} The question before us is whether the commission abused its discretion when it granted Garringer's request for medical-service reimbursement. We have held that the commission properly authorizes requested medical services when (1) the services are reasonably related to an allowed condition, (2) the services are reasonably necessary for treatment of an allowed condition, and (3) the cost of the services is medically reasonable. State ex rel. Miller v. Indus. Comm. , 71 Ohio St.3d 229, 232, 643 N.E.2d 113 (1994). Omni Manor argues that Dr. Tonnies's report and C-9 form failed to show that the requested services are reasonably related to an allowed condition.

{¶ 11} Omni Manor's primary argument, however, is that when an injured worker suffers from both allowed and contributing nonallowed conditions, the criteria in the Miller test alone are insufficient for establishing medical-service reimbursement and the injured worker must also establish that the requested treatment is "independently required for an allowed condition." Omni Manor asserts that this additional requirement is imposed by our opinions in Griffith , 87 Ohio St.3d 154, 718 N.E.2d 423, and State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm. , 99 Ohio St.3d 1, 2003-Ohio-2259, 788 N.E.2d 625. It further argues that to meet the requirement, Garringer was required to show that the reverse total-shoulder arthroplasty would have been necessary to treat an allowed condition even in the absence of the nonallowed conditions. Omni Manor contends that the record does not contain any evidence satisfying the additional requirement.

Finally, Omni Manor contends that Dr. Tonnies's report is equivocal and was therefore not proper evidence that could support the commission's decision.

{¶ 12} The commission argues that Dr. Tonnies's report is not equivocal and that it establishes the requisite causal connection between the reverse total-shoulder arthroplasty and the work injury because that surgery is the only effective treatment for Garringer's allowed rotator-cuff tear. Garringer adds that Omni Manor's position means that she would be entitled to either the standard rotator-cuff-tear surgery—which both Drs. Tonnies and Sterle agree would not be successful in this case—or no surgery at all to treat her work injury. She argues that her evidence satisfies the Miller test and that Omni Manor's suggestion that she must prove that the allowed condition is the "one and only reason" for the requested surgery would place upon her a greater burden than the law requires.

C. The Miller Test Is the Applicable Test

{¶ 13} Medical-service-reimbursement claims that are contested between an injured worker and a self-insuring employer are adjudicated by the commission. R.C. 4123.511(B)(3) and (C). In making those determinations, the commission applies the standard set forth in Miller , 71 Ohio St.3d at 232, 643 N.E.2d 113.

1. Miller

{¶ 14} In Miller , the injured worker suffered from obesity prior to injuring her back at work. Id. at 229, 231, 643 N.E.2d 113. Four years after her injury, she requested the commission's approval to enroll in a supervised weight-loss program. Id. The commission denied the request because obesity was not an allowed condition in the claim, and the Tenth District upheld that decision.

Id. at 230-231, 643 N.E.2d 113. On appeal, this court first...

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