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State of Ohio Ex Rel. Everett F. Reedy v. Industrial Commission of Ohio and Martin Marietta Energy Systems

November 10, 2011

STATE OF OHIO EX REL. EVERETT F. REEDY, RELATOR,
v.
INDUSTRIAL COMMISSION OF OHIO AND MARTIN MARIETTA ENERGY SYSTEMS, INC., RESPONDENTS.



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

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

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION

{¶1} Relator, Everett F. Reedy, commenced this original action requesting a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission"), to vacate its order denying relator's April 14, 2008 application for permanent total disability ("PTD") compensation and entering an order granting the same.

{¶2} This court referred the matter to a magistrate of this court pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, which is appended to this decision. In his decision, the magistrate recommended that this court deny relator's request for a writ of mandamus.

{¶3} Relator has not specifically identified his objection to the magistrate's decision. Nevertheless, we have reviewed relator's brief, and it appears that his objection is to the magistrate's conclusion of law as follows:

The Magistrate erred as a matter of law, by upholding the Commission's denial of Mr. Reedy's PTD application when there was no medical evidence to support the Commission's decision.

No party has filed objections to the magistrate's findings of fact.

{¶4} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the objected matter "to ascertain that the magistrate has * * * appropriately applied the law."

{¶5} In order to be entitled to a writ of mandamus, a relator must establish "[1] a clear legal right to the requested relief, [2] a clear legal duty on the part of the commission to provide the relief, and [3] the lack of an adequate remedy in the ordinary course of the law." State ex rel. General Motors Corp. v. Indus. Comm., 117 Ohio St.3d 480, 2008-Ohio-1593, ¶9. Further, "[s]uch a clear legal right exists when relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record." State ex rel. Brown v. Indus. Comm. (1983), 13 Ohio App.3d 178. Therefore, "when the record contains some evidence to support the commission's finding, there has been no abuse of discretion by the commission, and mandamus will not lie." Id.

{¶6} In his objection, relator argues that the magistrate erred in recommending that this court deny relator's request for a writ of mandamus because Dr. Koppenhoefer's medical report, solely relied upon by the commission in denying relator's PTD application, (1) did not take into account all of relator's allowed conditions, and/or (2) is ambiguous.

{¶7} In support of this argument, relator points to two specific references from Dr. Koppenhoefer's medical report: "severe degenerative changes and scoliosis unassociated with the injury in question," and "[w]hen taking into effect the allowed conditions in this claim, [relator] would be limited to sedentary work activities." (See July 14, 2009 report of Dr. Koppenhoefer.) Relator believes that, because Dr. Koppenhoefer mentioned "severe degenerative changes and scoliosis unassociated with the injury in question" (emphasis added), he did not take relator's allowed conditions of degenerative disc disease L4-5, L5-S1 into consideration when concluding that relator could perform "sedentary work activities." (Emphasis added.) In addition, relator contends that Dr. Koppenhoefer's statements are ambiguous because it is unclear whether he is considering "allowed or disallowed" conditions in determining that relator is medically capable of sedentary work. (Objection, 7.) Therefore, relator argues that Dr. Koppenhoefer's medical report cannot constitute "some evidence." (Objection, 6.)

{¶8} In response, the commission contends that there is no evidence that Dr. Koppenhoefer failed to consider all of relator's allowed conditions in determining that relator can perform sedentary work activities because the medical report accurately lists all of the allowed conditions in relator's claim. (June 13, 2011 Memorandum in Support of Magistrate's Decision at 1-2.)

{¶9} It is well-settled law that, "[i]n determining whether to award permanent total disability compensation, the commission must consider every allowed condition." State ex. rel. Johnson v. Indus. Comm. (1988), 40 Ohio St.3d 339, see also State ex rel. Roy v. Indus. Comm., 74 Ohio St.3d 259, 1996-Ohio- 141. In the present matter, relator's claim has been allowed for (1) aggravation of a pre-existing low back injury affecting left hip and leg; (2) lumbar disc disease; (3) stenosis L5; and (4) degenerative disc disease L4-5, L5-S1. In addition, relator's claim has been disallowed for (1) lumbar scoliosis and (2) degenerative disc disease L2-3, L3-4. (See Staff Hearing Officer's Order mailed October 16, 2009.)

{¶10} Here, the record indicates that Dr. Koppenhoefer's medical report does, in fact, list each of relator's allowed claims, including degenerative disc disease L4-5, L5-S1. (See July 14, 2009 report of Dr. Koppenhoefer, 1.) In addition, Dr. Koppenhoefer noted regarding relator's physical exam that "[m]otion involving the lumbosacral spine showed no motion from L4 through S1." (See July 14, 2009 report of Dr. Koppenhoefer, 3.) Further, Dr. Koppenhoefer also read and reviewed several medical records relating to the allowed claim of degenerative disc disease L4-5, L5-S1, including Dr. Kendrick's operative note from October 3, 1978, stating that a "laminotomy at L4-5 and L5-S1 with excision of an extruded L5-S1 disc was performed," and Dr. Kendrick's operative note from November 11, 1982, stating that "an L4-S1 posterior lateral fusion was done." Clearly, relator's allowed claims of degenerative disc disease L4-5, L5-S1 were mentioned in these medical records.

{¶11} Therefore, we find that Dr. Koppenhoefer's medical report constitutes "some evidence" upon which the commission could properly deny relator's PTD application because it unambiguously demonstrates that he considered all "allowed for" claims, including degenerative disc disease L4-5, L5- S1, in opining that relator could perform sedentary work activities.

{¶12} Following an independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the appropriate law. As such, relator's objection to the magistrate's conclusions of law is overruled, and we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. Therefore, we deny the requested writ of mandamus.

Objection overruled; writ denied.

FRENCH and KLATT, JJ., concur.

APPENDIX

State of Ohio ex rel. Everett F. Reedy, Relator, v. Industrial Commission of Ohio and Martin Marietta Energy Systems, Inc., Respondents.

No. 10AP-822

(REGULAR ...


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