State ex rel. Pilcher v. Coca-Cola Refreshments USA, Inc.

• Decision Date: 23 May 2013
• Docket Number: No. 12AP-671,12AP-671
• Citation: 2013 Ohio 2110
• Parties: State of Ohio, ex rel. Dou[g]las A. Pilcher, Relator, v. Coca-Cola Refreshments USA, Inc. and Industrial Commission of Ohio, Respondents.
• Court: Ohio Court of Appeals

2013 Ohio 2110

State of Ohio, ex rel. Dou[g]las A. Pilcher, Relator,

v. Coca-Cola Refreshments USA, Inc.and Industrial Commission of Ohio, Respondents.

No. 12AP-671

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

Rendered on February 26, 2013

Rendered on May 23, 2013

(REGULAR CALENDAR)

DECISION

Lisa M. Clark and Mark B. Weisser, for relator.

Thompson Hine LLP, and M. Scott Young, for respondent Coca-Cola Refreshments USA, Inc.

Michael DeWine, Attorney General, and John R. Smart, for respondent Industrial Commission of Ohio.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, J.

{¶ 1} Relator, Douglas A. Pilcher, has filed this original action requesting that this court issue a writ of mandamus ordering the Industrial Commission of Ohio ("commission") to vacate its orders exercising continuing jurisdiction, as requested by respondent Coca-Cola Refreshments USA, Inc. ("employer"), and (1) denying his request for temporary total disability ("TTD") compensation, and (2) denying his request that certain medical treatment and a consultation be authorized. Relator asks us to order thecommission to find that he is entitled to that compensation and that the requested treatment is based on the allowed conditions in his claim.

{¶ 2} Pursuant to Civ.R. 53(D) 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 that this court deny the request for a writ of mandamus.

{¶ 3} Relator has filed three objections to the magistrate's decision which can be summarized, as follows:

(1) The magistrate erred in finding that the commission did not abuse its discretion in exercising its continuing jurisdiction on January 19, 2012 regarding the TTD order because it is ambiguous as to why it exercised continuing jurisdiction.

(2) The magistrate erred in not addressing the issue of whether Dr. Sheridan's May 23, 2011 report constitutes some evidence in support of the commission's January 19, 2012 denial of TTD, including relator's arguments that (a) non-allowed conditions cannot advance or defeat a request for TTD, and (b) Dr. Sheridan did not have any medical records prior to April 4, 2011 and therefore was not aware of ongoing, continuous treatment by Dr. Stern.

(3) The magistrate erred in not vacating the commission's order relying on Dr. Sheridan's July 25, 2011 report as evidence to deny authorization of certain medical treatment.

{¶ 4} The arguments raised in relator's objections are essentially the same as those raised to and addressed by the magistrate.

{¶ 5} While relator continues to argue that the staff hearing officer's ("SHO") incorrect listing of non-allowed claims was a mistake of fact and ambiguous, for the reasons stated in the magistrate's decision, we reject relator's claims and find no merit to relator's first objection.

{¶ 6} Furthermore, we reject relator's claims that it was error to rely on Dr. Sheridan's report to deny TTD. For the reasons stated in the magistrate's decision, we find Dr. Sheridan's May 23, 2011 report constituted some evidence upon which the commission could rely to deny TTD. Dr. Sheridan expressly opined that the requestedperiod of TTD is not due to the allowed conditions. Also, although in his May 23, 2011 report, upon which the commission relied, he did not expressly state that he had reviewed medical records prior to April 4, 2011, in a prior report, he indicated that he had reviewed them. In his April 19, 2011 report, he stated that he had reviewed Dr. Stern's (Tri-State Orthopedic) medical records from August 9, 2006 to August 31, 2010, as well as the 2006 and 2008 MRIs, a report from Mayfield Clinic dated August 11, 2008, and records related to the 2010 work-related injury. We do not find merit to relator's second objection.

{¶ 7} Finally, we reject relator's claims that the commission relied upon the same evidence from Dr. Sheridan to deny treatment. As pointed out by the magistrate, the commission relied on the July 25, 2011 report of Dr. Sheridan to deny additional treatment, not the May 23, 2011 report on which it relied to deny TTD. To the extent the July 25, 2011 report is consistent with Dr. Sheridan's May 23, 2011 report, for the reasons articulated by the magistrate and by this court above regarding relator's second objection, we also find no merit to relator's third objection.

{¶ 8} Upon review of the magistrate's decision, an independent review of the record, and due consideration of relator's objections, we find the magistrate has properly determined the pertinent facts and applied the appropriate law. We therefore overrule relator's three objections to the magistrate's decision and adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. Accordingly, the requested writ of mandamus is hereby denied.

Objections overruled; writ denied.

BROWN and SADLER, JJ., concur.

APPENDIX

State of Ohio, ex rel.

Dou[g]las A. Pilcher, Relator,

v.

Coca-Cola Refreshments

USA, Inc. and Industrial

Commission of Ohio, Respondents.

No. 12AP-671

(REGULAR CALENDAR)

MAGISTRATE'S DECISION

Lisa M. Clark and Mark B. Weisser, for relator.

Thompson Hine LLP, and M. Scott Young, for respondent Coca-Cola Refreshments USA, Inc.

Michael DeWine, Attorney General, and John R. Smart, for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶ 9} Relator, Douglas A. Pilcher, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its orders exercising continuing jurisdiction and granting the requests for reconsideration filed by respondent Coca-Cola Refreshments USA, Inc.("employer"), and ultimately denying his request for temporary total disability ("TTD") compensation and his request that certain medical treatment and a consultation be authorized, and ordering the commission to find that he is entitled to that compensation and that the requested treatment is based on the allowed conditions in his claim.

Findings of Fact:

{¶ 10} 1. Relator sustained a work-related injury on July 7, 2006.

{¶ 11} 2. The employer originally certified the claim for lumbosacral sprain. Four years after the date of injury and following a jury trial, relator's workers' compensation claim was allowed for the following additional conditions:

[A]ggravation of lumbar spondylosis; aggravation of foraminal stenosis at L4-5 and L5-S1 secondary to a bulging L4-5 and L5-S1 disc; aggravation of degenerative disc disease at L4-5 and L5-S1.

{¶ 12} 3. After a period of treatment and TTD compensation, relator was released to return to work without any restrictions on January 25, 2007, and he continued to work without any restrictions due to the allowed conditions in this claim from 2007 to 2011.

{¶ 13} 4. Relator's treating physician was Errol J. Stern, M.D. According to Dr. Stern's report, shortly after relator returned to regular-duty work on January 29, 2007, relator was involved in a motor vehicle accident. Dr. Stern's office note from February 28, 2007 provides, in relevant part:

Clinically he describes pain in the right side of his back and it tends to be quite severe. He says that it got worse several days after the accident and has been progressively worsening since then.

Clinical examination indicates tenderness in the lumbosacral junction, more so in the right sacroiliac area. There is positive sacroiliac joint compression on the right side. There is tenderness in the joint on the right and spasms.

* * *

Impression is lumbosacral strain with right sacroiliac joint strain.

* * *His present diagnosis related to this motor vehicle accident is left shoulder strain, left shoulder tendinitis, possible rotator cuff injury of the left shoulder, lumbosacral strain and right sacroiliac joint strain. We will see how he fares over the next 3 weeks. He maintains work related activities.

{¶ 14} 5. In an office note dated October 1, 2008, Dr. Stern lists the following diagnoses:

[One] Spinal stenosis

[Two] Lumbar spondylosis

[Three] Degenerative disc disease

[Four] Herniated disc¹

{¶ 15} 6. Thereafter, Dr. Stern noted that Dr. Cohen had recommended a provocative discogram and Dr. Stern opined he believed that relator would require surgical intervention.

{¶ 16} 7. In an office note dated May 12, 2009, Dr. Stern stated:

He has chronic back pain secondary to spinal stenosis and degenerative disc disease and multiple disc bulges.²

{¶ 17} 8. In an office note dated May 11, 2010, Dr. Stern references a second work-related injury which occurred on May 6, 2010 and was allowed for lumbar sprain. (This claim is not part of this mandamus action.) Specifically, Dr. Stern states:

Mr. Pilcher has a history of low back pain from an industrial injury. Apparently he re-injured his back that occurred last Thursday, 5/6/10, when he was pulling up on a dolly and felt pain in his low back on the left side in the left sacroiliac joint and radiates to the left buttock and down the left leg. He has positive straight leg raising on the left, negative on the right. Reflexes are intact. There is no motor or sensory deficit that I can determine. There is pain following the L5-S1 nerve root dermatome with ipsilateral and some contralateral pain to the left side.

Recommend light duty. He takes Percocet and Ibuprofen and we will continue the same medication and see if this doesn't calm down over the next few weeks.

He should talk to his legal counsel about how he is going to handle the case. Right now we are seeing him under Anthem.

{¶ 18} 9. In an office note dated April 6, 2011, Dr. Stern indicates that relator's back pain had apparently become significantly worse. Specifically, Dr. Stern stated:

Douglas has been having severe low back pain that was spontaneous in onset on Sunday. It is left sided. It radiates into his left buttock and left cheek. It is near his left sacroiliac

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