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State of Ohio Ex Rel. Penske Truck v. Industrial Commission of Ohio and

November 8, 2011

STATE OF OHIO EX REL. PENSKE TRUCK LEASING CO., LP, RELATOR,
v.
INDUSTRIAL COMMISSION OF OHIO AND
MICHAEL CARFORA, RESPONDENTS.



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

Cite as State ex rel. Penske Truck Leasing Co., L.P., v. Indus. Comm.,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶1} Relator, Penske Truck Leasing Co., LP ("relator"), filed this original action, which asks this court to issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order that granted the C-9 request filed by respondent Michael Carfora ("claimant") and authorized claimant to have an MRI, bilateral shoulder x-rays, and four office visits per year to monitor the medications being prescribed, based on the commission's finding that the treatment was reasonable and necessary to treat the allowed conditions in the claim.

{¶2} This matter was referred to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, which includes findings of fact and conclusions of law and is appended to this decision, recommending that this court deny the requested writ. No objections have been submitted concerning the magistrate's findings of fact, and we adopt them as our own.

I. BACKGROUND

{¶3} As detailed in the magistrate's decision, claimant suffered a work-related injury in 2003, and a claim was allowed for bilateral shoulder sprain and bilateral rotator cuff tear. Claimant also had pre-existing shoulder issues.

{¶4} Following his injury, claimant had surgery and other treatments. Claimant was eventually released to return to work in 2005, but continued to seek medical treatment thereafter.

{¶5} In January 2009, claimant sought treatment from Charles B. May, D.O. On January 14, 2009, Dr. May issued a report that requested the following:

(1) reactivation of the claim; (2) updated x-rays of the bilateral shoulders; (3) an updated MRI of the right shoulder; and (4) four office visits per year for evaluation and medication management. Claimant submitted a C-9 form requesting authorization of these services.

{¶6} Following a hearing on November 17, 2009, a staff hearing officer ("SHO") affirmed an order of a district hearing officer and authorized the following: (1) an MRI of the right shoulder; (2) bilateral shoulder x-rays; and (3) four office visits per year to monitor the medications being prescribed. The SHO found that claimant presented sufficient evidence to show that the authorized treatment is related to the allowed conditions in the claim. In reaching this finding, the SHO relied on the medical reports of Dr. May and Thomas L. Rapp, D.O.

II. OBJECTIONS

{¶7} As noted, relator filed this mandamus action, and the magistrate recommended that we deny the requested writ. Relator objects to the magistrate's conclusion that the commission could rely on the following to support its authorization of services: (1) Dr. May's January 14, 2009 report; (2) Dr. Rapp's treatment notes; and

(3) claimant's testimony. Relator raised these same issues before the magistrate. For the reasons explained by the magistrate, we disagree with relator's contention that the commission could not rely on this evidence.

{¶8} First, as to Dr. May's report, relator contends that it was not evidence on which the commission could rely because Dr. May had not reviewed claimant's prior treatment record and claimant had told him that he had no pre-existing shoulder problems. As the magistrate explained, however, the weight to be given to Dr. May's report was an issue for the commission to resolve. But more importantly, even if Dr. May's report were eliminated as evidence, there still exists other evidence to support the commission's order.

{¶9} Second, as to Dr. Rapp's treatment notes, relator states that the SHO cited to an office note that does not exist and that the notes themselves do not support authorization of the treatment requested. We agree with the magistrate that the SHO obviously intended to refer to an office visit that occurred on November 21, 2005, rather than November 21, 2007. And, it was for the commission to interpret Dr. Rapp's records and determine the weight to be given those records.

{¶10} Finally, relator contends that claimant's testimony was not evidence on which the commission could rely. We agree with the magistrate, however, that the commission could consider claimant's testimony as part of its determination, particularly to explain the gaps in his treatment.

{¶11} For all these reasons, we overrule relator's objections. IV. CONCLUSION

{¶12} In summary, based on our independent review of this matter, we overrule relator's objections. We adopt the magistrate's decision, including the findings of fact and conclusions of law contained in it, as our own. Accordingly, we deny the requested writ.

Objections overruled; writ of mandamus denied.

TYACK and CONNOR, JJ., concur.

A P P E N D I X

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

State of Ohio ex rel. Penske Truck Leasing Co., LP, Relator, v. Industrial Commission of Ohio and Michael Carfora, Respondents.

No. 10AP-774 (REGULAR CALENDAR)

MAGISTRATE ' S DECISION Rendered on April 21, 2011

Schottenstein, Zox & Dunn, Robert M. Robenalt and Jennifer McDaniel, for relator.

Michael DeWine, Attorney General, and Sandra E. Pinkerton, for respondent Industrial Commission of Ohio.

Philip J. Fulton Law Office, Philip J. Fulton and Ross R. Fulton, for respondent Michael Carfora.

IN MANDAMUS

{¶13} Relator, Penske Truck Leasing Co., LP, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which granted the C-9 filed by respondent, Michael Carfora ("claimant"), and authorizing claimant to have a right shoulder MRI, bilateral shoulder x-rays, and four office visits per year to monitor the medications being prescribed based upon a finding that the treatment was reasonable and necessary to treat the allowed conditions in the claim.

Findings of Fact:

{¶14} 1. Claimant was employed as a truck driver with relator.

{ΒΆ15} 2. On August 29, 2003, claimant was delivering a refrigerator when it slipped and he grabbed it, ...


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