State ex rel. R.R. Donnelley & Sons Co. v. The Indus. Comm'n of Ohio

• Decision Date: 29 December 2022
• Docket Number: 21AP-119
• Citation: 2022 Ohio 4774
• Parties: State ex rel. R.R. Donnelley & Sons Co., Relator, v. The Industrial Commission of Ohio et al., Respondents.
• Court: Ohio Court of Appeals

2022-Ohio-4774

State ex rel. R.R. Donnelley & Sons Co., Relator, v. The Industrial Commission of Ohio et al., Respondents.

No. 21AP-119

Court of Appeals of Ohio, Tenth District

December 29, 2022

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

On brief:

Kegler, Brown, Hill & Ritter, Randall W. Mikes, and David M. McCarty for relator R.R. Donnelley & Sons Co.

On brief:

Dave Yost, Attorney General, and Douglas R. Unver for respondent Industrial Commission of Ohio.

On brief:

Scott W. Schiff & Associates, Co., and Kurt A. Knisley for respondent Linda E. Brokaw.

DECISION

MENTEL, J.

{¶ 1} Relator, R.R. Donnelley & Sons Co., brought this original action seeking a writ of mandamus ordering respondent, Industrial Commission of Ohio ("Commission"), to vacate its order awarding scheduled loss benefits under R.C. 4123.57(B) to respondent Linda E. Brokaw and denying relator's request to terminate temporary total disability ("TTD") for Ms. Brokaw's failure to reach maximum medical improvement ("MMI"). Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate.

{¶ 2} As reflected in the facts given in the magistrate's decision, Ms. Brokaw was injured on October 17, 2017, during the course of employment with her employer and a TTD claim was allowed for a number of conditions, the most pertinent here being those to her right shoulder and right upper extremity. Employer filed to terminate the TTD benefit on August 13, 2020. A subsequent medical report opined that Ms. Brokaw had not reached MMI because no intrathecal therapy for pain had yet been attempted. After administrative hearings, the Commission affirmed an order granting Ms. Brokaw's motion for scheduled loss of use of her right arm and finding, based on several medical reports that she had lost functional use of her right upper extremity. In addition, the order granted her request to authorize treatment with intrathecal pain medication in an attempt to relieve the pain that affected her right upper extremity. The order also denied the employer's motion to terminate TTD based on a finding of MMI. The magistrate's decision attached below provides a more detailed description of the medical and procedural history of the claim.

{¶ 3} After exhausting the administrative appeal process, employer filed a complaint for a writ of mandamus. The magistrate has rendered a decision that includes findings of fact and conclusions of law. He recommends denying employer's request for a writ of mandamus. Employer has filed objections to the magistrate's decision.

{¶ 4} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the objected matters "to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law." A relator seeking a writ of mandamus must establish:" '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon respondent to perform the act requested, and (3) that relator has no plain and adequate remedy in the ordinary course of the law.'" Kinsey v. Bd. of Trustees of the Police & Firemen's Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting State ex rel. Consol. Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear legal right exists when a [commission] abuses its discretion by entering an order which is not supported by 'some evidence.'" Id.

{¶ 5} This court will not determine that the Commission abused its discretion when there is some evidence in the record to support the Commission's finding. State ex rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio St.3d 197, 198 (1986); State ex rel. Barnett v. Indus. Comm. of Ohio, 10th Dist. No. 14AP-628, 2015-Ohio-3898, ¶ 9. The "some evidence" standard "reflects the established principle that the commission is in the best position to determine the weight and credibility of the evidence and disputed facts." State ex rel. Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing State ex rel. Pavis v. Gen. Motors Corp., 65 Ohio St.3d 30, 33 (1992).

{¶ 6} Employer's first objection states: "The Magistrate erred in finding that the September 1, 2020 report of Dr. McDowell was 'some evidence' to support a conclusion that additional treatment could improve the function of Claimant's right arm but not to the extent to defeat a finding of total loss of use of that arm." (Apr. 21, 2022 Am. Objs. at 4.) The magistrate summarized and responded to employer's argument as follows:

The employer asserts that the SHO erred as a matter of law in awarding a permanent loss of use of the right arm while at the same time finding that additional treatment provided the potential for improved function of the same arm. The employer points out that there was no evidence that addresses or supports a conclusion that any functional improvement afforded by the intrathecal injections will fall short of the type of functional improvement that would nullify the finding of a total loss of use. Without such evidence, the employer claims, the conclusion of a permanent and total loss of function sufficient to award scheduled loss benefits cannot legally coexist with a conclusion of an opportunity for increased function sufficient to defeat a finding of MMI.

The magistrate finds the employer's arguments without merit. There is no necessary contradiction with the SHO's simultaneously finding a permanent loss of use of claimant's right arm while also continuing to pay TTD based on claimant's not having reached MMI due to the granting of intrathecal injections and potential for improved functioning. These findings may coexist, and the employer cites no authority that they are mutually exclusive. Claimant could still qualify for the permanent loss of use of her arm even if the possibility existed that she could gain some level of function through further treatment. Claimant could also continue to qualify for TTD compensation if she had not achieved MMI due to the fact that she had not reached a treatment plateau and there still existed the possibility of functional change based on further treatment.

(Apr. 7, 2022 Mag.'s Decision at 8.)

{¶ 7} Nor has employer, in its argument supporting the foregoing objection, pointed to any authority to support its assertion that the two findings-one, that additional treatment could improve the function of Ms. Brokaw's right arm, and two, that she suffered a permanent loss of use of that arm-are mutually exclusive, and that a finding of the latter "defeat[s]" the former. (Apr. 21, 2022 Am. Objs. at 4.)

{¶ 8} The Ohio Administrative Code defines "maximum medical improvement" as:

a treatment plateau (static or well-stabilized) at which no fundamental functional or physiological change can be expected within reasonable medical probability in spite of continuing medical or rehabilitative procedures. An injured worker may need supportive treatment to maintain this level of function.

Ohio Adm.Code 4121-3-32(A)(1).

{¶ 9} Treatment notes from an August 31, 2020 visit state that "[c]ompared to the last visit the pain is worse" and "continuous." (Aug. 31, 2020 Office Note, SR 38.) Dr. McDowell later opined: "I do not believe that this injured worker has reached MMI, as she has not tried intrathecal therapy." (Sep. 1, 2020 Report of Dr. McDowell SR 41.) Thus, the report is some evidence upon which the Commission could base its conclusion that Ms. Brokaw had not reached MMI.

{¶ 10} Employer also asserts that in this report "Dr. McDowell indicated that Claimant could not be deemed MMI until she underwent the intrathecal injections. Nowhere in this report does he indicate that these injections will improve her function to any degree. For the hearing officer to conclude otherwise requires that he impermissibly come to his own medical conclusion." (Apr. 21, 2022 Am. Objs. at 10.)

{¶ 11} But the office notes for the August 31, 2020 visit indicate the report was prepared to expressly opine that the intrathecal injections "could give her significant pain relief that improves her function." (Aug. 31, 2020 Office Note, SR 40.) Employer's assertion otherwise is incorrect, as is its assertion that Dr. McDowell's report "is simply not 'some evidence' to support a finding that the injections will improve Claimant's function at all, let alone an extent which does not contradict the finding of total loss of use." (Apr. 21, 2022 Am. Objs. at 10.) The first objection is overruled.

{¶ 12} Employer's second objection states: "The Magistrate erred in presuming a basis for the staff hearing officer's decision which was not stated in the order." (Apr. 21, 2022 Am. Objs. at 4.) More specifically, employer argues: "The hearing officer did not state in his order the reasoning assumed by the Magistrate, that being that this alleged improvement would amount to anything more than residual functioning." (Apr. 21, 2022 Am. Objs. at 11.) Although not specified by employer, we presume that its objection refers to the following statement by the magistrate, as it is the only instance of the SHO's reasoning the magistrate mentions that employer has quoted (with underlining for emphasis) in its objections: "The commission was within its discretion to conclude that claimant's functioning could improve with intrathecal injections yet never improve beyond residual functioning, which would still qualify her loss of use as permanent and complete." (Apr. 7, 2022 Mag.'s Decision at 8.)

{¶ 13} Contrary to employer's objection, the SHO did state in the order the reasoning the magistrate references: "It is found [that] the Injured Worker does remain temporarily and totally disabled from the physical conditions allowed in this claim. This is based primarily on the granting of...