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State of Ohio Ex Rel. v. Karl Hc LLC

November 8, 2011

STATE OF OHIO EX REL. CARMAN WALLS, RELATOR,
v.
KARL HC LLC, AND INDUSTRIAL COMMISSION OF OHIO, RESPONDENTS.



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

Cite as State ex rel. Walls v. Indus. Comm.,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶1} Relator, Carman Walls, commenced this original action in mandamus seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying her request for temporary total disability ("TTD") compensation and to enter an order granting said compensation.

{¶2} Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate determined that the commission did not abuse its discretion when it denied relator TTD compensation. Specifically, the magistrate found that: (1) there was some evidence in the record upon which the commission relied to support its decision; (2) the commission did not terminate ongoing TTD compensation, but denied a new period of compensation; and (3) the commission properly applied the two-year limitation to relator's request for benefits. Based upon these findings, the magistrate has recommended that we deny relator's request for a writ of mandamus.

{¶3} Relator did not file an objection to the magistrate's decision. However, the commission filed objections to the magistrate's decision. In its first objection, the commission points out what appears to be a typographical error in the last sentence of the first full paragraph on page 14 of the magistrate's decision. According to the commission, the date in the last part of that sentence should be March 19, 2008, rather than March 19, 2010. We agree. Therefore we sustain the commission's first objection.

{¶4} In its second objection, the commission contends that the magistrate erred when she removed Dr. Gula's report from evidentiary consideration because the commission previously rejected his report. Despite the magistrate's removal of Dr. Gula's report from evidentiary consideration, the removal did not warrant granting a writ of mandamus because the commission also relied upon Dr. Sethi's report. Dr. Sethi's report independently supported the commission's decision. There has been no objection challenging the commission's reliance on Dr. Sethi's report. Nevertheless, the commission argues that the magistrate should not have excluded Dr. Gula's report.

{¶5} Because Dr. Sethi's report independently supports the commission's order, we need not decide whether Dr. Gula's report should have been removed from evidentiary consideration by the magistrate. Therefore, we sustain the commission's second objection to the extent that we do not adopt the portion of the magistrate's conclusion of law that addresses the removal of Dr. Gula's report from evidentiary consideration.

{¶6} Following an independent review of this matter, we find that the magistrate has properly determined the facts except for the typographical error previously noted. Therefore, we adopt the magistrate's findings of fact with that correction. We also adopt the magistrate's conclusions of law except for her analysis of whether Dr. Gula's report should be excluded from evidentiary consideration. In accordance with the magistrate's decision, we deny relator's request for a writ of mandamus.

Objections sustained;

writ of mandamus denied.

BROWN and DORRIAN, JJ., concur.

APPENDIX

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

No. 10AP-866

State of Ohio ex rel. Carman Walls, Relator, v. Karl HC LLC, and Industrial Commission of Ohio, Respondents.

(REGULAR CALENDAR)

MAGISTRATE ' S DECISION

Rendered on June 23, 2011

Peter J. Gibson, for relator.

Michael DeWine, Attorney General, and Derrick L. Knapp, for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶7} Relator, Carman Walls, 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 denied her request for temporary total disability ("TTD") compensation, and ordering the commission to find that she is entitled to that compensation.

Findings of Fact:

{¶8} 1. Relator sustained a work-related injury on August 12, 1996 and her workers' compensation claim was originally allowed for the following conditions: "bilateral thoracic sprain; bilateral lumbosacral sprain; disc protrusion L5-S1." In an order mailed September 7, 2007, relator's claim was additionally allowed for "radiculopathy[,] lumbosacral."

{¶9} 2. On October 18, 2006, relator underwent surgery for her back condition.

{¶10} 3. Relator's treating physician, Stephen Altic, D.O., completed a C-84 certifying that relator was temporarily and totally disabled from the date of surgery, October 18, 2006 through January 18, 2007.

{¶11} 4. In an order mailed November 15, 2006, the Ohio Bureau of Workers' Compensation ("BWC") granted relator's motion for TTD compensation from October 18, 2006 and continuing based on medical evidence submitted.

{¶12} 5. Dr. Altic continued to certify TTD compensation through December 2007. Dr. Altic also requested an MRI and an EMG as well as numerous epidural steroid injections to treat relator's condition. Based on the stipulated evidence, it appears that Rao Lingam, M.D., is the doctor who performed the injections.

{ΒΆ13} 6. With regards to the C-84s submitted by Dr. Altic, the record contains one dated November 19, 2007, wherein Dr. Altic certified ...


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