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State of Ohio Ex Rel. v. Stephanie Whitcomb and

November 8, 2011

STATE OF OHIO EX REL.
CRESTVIEW MANOR NURSING HOME, INC., RELATOR,
v.
STEPHANIE WHITCOMB AND INDUSTRIAL COMMISSION OF OHIO, RESPONDENTS.



The opinion of the court was delivered by: Sadler, J.

Cite as State ex rel. Crestview Manor Nursing Home, Inc. v. Whitcomb,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶1} In this original action, relator, Crestview Manor Nursing Home, Inc. ("Crestview" or "relator"), requests a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order that awarded temporary total disability ("TTD") compensation beginning May 3, 2009, and to enter an order denying compensation to respondent Stephanie Whitcomb ("claimant") on eligibility grounds or, alternatively, on grounds that the award is not supported by the evidence upon which the commission relied.

{¶2} Pursuant to Civ.R. 53 and Loc.R. 12(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 concluded that the commission abused its discretion by failing to determine whether claimant's early departures from her employment violated relator's rule regarding "[u]nauthorized absence from duty during regularly scheduled work hours" so as to constitute a voluntary abandonment of her employment. Therefore, the magistrate recommended that this court issue a writ of mandamus ordering the commission to amend its staff hearing officer's ("SHO") order of September 29, 2009, in accordance with the magistrate's decision.

{¶3} Prior to addressing the parties' objections, we first address claimant's motion to strike relator's objections. According to claimant, relator's objections are untimely under Loc.R. 12(M) and, therefore, should be stricken and not considered by this court. A review of the record, however, reveals that relator's objections are timely under Loc.R. 12(M). Accordingly, claimant's motion to strike is denied.

{¶4} We now turn to the objections filed by the parties. Claimant has filed objections to the magistrate's decision and, without delineating a specific objection, essentially contends that the commission addressed all of the arguments raised by relator and that the magistrate inappropriately addressed arguments that were not made at the September 29, 2009 commission hearing. Contrary to claimant's assertion, the issue of whether claimant's early departures from her employment violated relator's rule regarding "[u]nauthorized absence from duty during regularly scheduled work hours," was before the commission at the September hearing and was raised in relator's motion for reconsideration filed subsequent to the commission's September 2009 order.

{¶5} Accordingly, we overrule claimant's objections to the magistrate's decision.

{¶6} In addition to the objections filed by claimant, relator has filed the following objections to the magistrate's decision:

[1.] THE MAGISTRATE ERRED IN FINDING RESPONDENT INDUSTRIAL COMMISSION DID NOT ABUSE ITS DISCRETION IN DETERMINING THAT RESPONDENT STEPHANIE WHITCOMB DID NOT VIOLATE RELATOR'S RULE PROHIBITING INSUBORDINATION.

[2.] THE MAGISTRATE ERRED IN FINDING RELATOR'S ATTENDANCE AND TARDINESS RULE WAS NOT CLEARLY DEFINED TO SUPPORT RELATOR'S VOLUNTARY JOB ABANDONMENT DEFENSE.

{¶7} Relator's objections challenge the magistrate's findings pertaining to relator's "Attendance and Tardiness" and "Insubordination" work rules. These objections, however, fail to raise any new issues and simply reargue the contentions that were presented to and addressed by the magistrate. For the reasons set forth in the magistrate's decision, we do not find relator's objections well-taken.

{¶8} Accordingly, we overrule relator's objections to the magistrate's decision.

{¶9} Upon review of the magistrate's decision, an independent review of the record, and due consideration of both claimant's and relator's objections, we find the magistrate has properly determined the pertinent facts and applied the appropriate law.

We, therefore, adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein.

{¶10} Accordingly, claimant's objections to the magistrate's decision are overruled, relator's objections to the magistrate's decision are overruled, and we order a writ of mandamus returning the matter to the commission for further consideration and amendment of its SHO's order of September 29, 2009 in a manner consistent with this decision.

Motion to strike denied; objections overruled, and writ of mandamus granted.

BRYANT, P.J., and KLATT, J., concur.

A P P E N D I X

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

State of Ohio ex rel. Crestview Manor Nursing Home, Inc., Relator, v. Stephanie Whitcomb and Industrial Commission of Ohio, Respondents.

No. 10AP-549

(REGULAR CALENDAR)

MAGISTRATE ' S DECISION Rendered on August 15, 2011

Michael Soto, for relator. Larrimer & Larrimer, and Thomas L. Reitz, for respondent Stephanie Whitcomb. Michael DeWine, Attorney General, and Andrew J. Alatis, for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶11} In this original action, relator, Crestview Manor Nursing Home, Inc. ("Crestview" or "relator"), requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order awarding temporary total disability ("TTD") compensation beginning May 3, 2009, and to enter an order denying compensation to respondent Stephanie Whitcomb ("claimant") on eligibility grounds or, alternatively, on grounds that the award is not supported by the evidence upon which the commission relied.

{¶12} Relator also requests that the writ order the commission to vacate an order that denied relator's February 18, 2010 motion for the exercise of continuing jurisdiction, and to enter an order finding that the Ohio Bureau of Workers' Compensation ("bureau") unlawfully began payments of TTD compensation beginning January 1, 2010 following relator's unilateral termination of payments under a salary continuation agreement.

Findings of Fact:

{¶13} 1. On May 2, 2009, claimant injured her back while employed with relator, a state-fund employer. On the date of injury, claimant sought medical treatment at the First Medical Urgent Family Care Center ("urgent care") where she was examined by Curtis M. McAnallen, M.D. Dr. McAnallen diagnosed a "thoracic lumbar strain." Later, a lumbosacral sprain was diagnosed at the urgent care.

{¶14} 2. On May 2, 2009, a Physician's Report of Work Ability ("MEDCO-14") form was completed. Claimant was released to return to work with restrictions from May 3 through May 6, 2009, when a follow-up appointment was scheduled.

{¶15} 3. On May 4, 2009 claimant entered into a "Transitional Work Program Participation Agreement" ("TWP")*fn1 . The TWP agreement provides:

The Transitional Work Program (TWP) at Crestview Manor Nursing Home, Inc. Name is designed to provide you with suitable temporary work assignments while you recover from your work-related accident or illness. All parties agree that during your participation in the program, you will not be required to perform any task or duties that are not compatible with the temporary restrictions that your doctor has provided.

Your temporary assignment begins on [5-4-09]. Your case will be staffed by TWP Committee every two weeks, or on an as needed basis, to determine you[r] progress and need for continuance or modification of assignment. The program will continue as long as there is a documented medical need up to a maximum of 60 calendar days. Your program may be terminated due to lack of medical necessity, lack of progress or other change in your medical condition. When you are ready to go back to full duty work, your physician of record will perform an examination and sign the release.

You will be paid your regular rate of pay while participating in the program and will be expected to follow all established personnel policies and procedures. No overtime beyond normal scheduling working hours will be worked. If the therapy is needed, an occupational or physical therapist will come to the work-site to provide the services specified by your physician of record. All other appointment[s] need to be scheduled during non-working hours as much as possible. If you are unable to schedule an appointment during non- working hours, it must be scheduled for the first two or last two hours of your assigned shift. You may use available benefit time to cover your absence.

Your restriction(s) is/are listed on the MEDCO-14 form from your attending physician.

Your working shift is: 11 AM - 7 PM

{¶16} 4. On May 6, 2009, claimant was again seen at the urgent care where a MEDCO-14 was completed. On the MEDCO-14, claimant was totally disabled for May 6, 2009, but released to return to restricted work from May 7 to May 20, 2009.

{¶17} 5. On May 13, 2009, claimant initially was examined by chiropractor Richard J. Maynard, Jr., D.C. Dr. Maynard's office note of that date states:

Apparently she did fall while on the job which did indeed cause her injury.

She was seen initially at urgent care, they did prescribe muscle relaxants and Ibuprofen. No x-rays were taken at that time. She was seen at the local hospital emergency room on May 11, 2009. She was given Vicodin, 5 mg. X-rays were taken which did show a grade-I to grade-II spondylolisthesis at L5-S1 with degenerative disc disease in ...


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