[State of Ohio ex rel.] Cleveland Clinic Health System - East Region, Relator,
Industrial Commission of Ohio and Heather Ochs, Respondents.
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Nicola, Gudbranson & Cooper, LLP, Michael J. Bertsch, and Kathleen E. Gee, for relator.
Michael DeWine, Attorney General, and John R. Smart, for respondent Industrial Commission of Ohio.
Robert C. Bianchi, for respondent Heather Ochs.
(¶ 1} Relator, Cleveland Clinic Health System - East Region, f.k.a. Meridia Health System d.b.a. South Pointe Hospital ("hospital" or "relator"), has filed this original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its December 10, 2010 order of its staff hearing officer ("SHO") that grants the September 21, 2010 motion of respondent, Heather Ochs ("claimant"), for retroactive authorization of an August 3, 2010 surgery and to enter an order denying the motion.
(¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, and recommended that this court issue a writ of mandamus ordering the commission to vacate its SHO's order of December 10, 2010 and enter a new order that adjudicates claimant's September 21, 2010 motion. The hospital and the commission have filed objections to the magistrate's decision.
(¶ 3} The commission argues in its first objection that the magistrate erred when he based his conclusions of law on a post-adjudication medical report from Dr. Sheldon Kaffen that should not have been considered. The commission contends that Dr. Kaffen's report was not faxed to the commission until December 17, 2010, which was one day after the SHO's decision was typed. However, the magistrate was very clear that he was merely "not[ing]" Dr. Kaffen's explanation that there was no diagnosis code for the allowed condition of shifting of fusion hardware at L5-S1. The magistrate seemed aware of the limitations of Dr. Kaffen's report, as he prefaces this statement by pointing out that the commission also noted the same point in its brief and then explains in the following sentence that the commission also said in its brief that it believed Dr. Kaffen's addendum was "useful" on this point. Furthermore, contrary to the commission's claim, the magistrate did not base any particular conclusion of law on this undisputed fact. Dr. Kaffen's observation was more in the nature of background information to offer a possible explanation as to why Dr. Todd Hochman used the wrong allowed condition. We find no error and overrule the commission's first objection.
(¶ 4} We will address the hospital's sole objection and the commission's second objection together, as they are related. The hospital argues in its objection that, although the magistrate correctly found that the commission's order granting retroactive authorization of and payment for claimant's lumbar fusion surgery was an abuse of discretion because Dr. Hochman's October 13, 2010 report was not some evidence, the magistrate erred when he ordered the commission to enter a new order adjudicating claimant's September 21, 2010 motion. Specifically, the hospital contends the magistrate should not have returned the case to the commission for a new order but should have returned it to the commission for an order denying claimant's motion because no other evidence exists to support a finding that the August 3, 2010 lumbar fusion surgery was related to the allowed claim conditions.
(¶ 5} The commission argues the exact opposite in its second objection. The commission contends that the magistrate erred when, after excluding Dr. Hochman's report, it did not evaluate other medical evidence upon which the commission relied to determine whether those reports constituted some evidence. The commission asserts the SHO also relied upon Dr. Thomas Mroz's operative records from the 2010 surgery he performed, Dr. Mroz's office notes, and operative records from a 2005 surgery. The commission notes that these reports predate and are not tainted by Dr. Hochman's report, and they do not refer to "lumbosacral instability, " the incorrect allowed condition to which Dr. Hochman improperly referred.
(¶ 6} After reviewing the arguments of both the commission and the hospital, we believe the better course is to return the matter to the commission to enter a new order that adjudicates claimant's motion without consideration of Dr. Hochman's report. It is difficult to discern by the order at issue the degree to which the commission relied upon Dr. Hochman's report versus the other specifically enumerated evidentiary items, including the office notes of Dr. Mroz. Although this court has the authority to determine whether the remaining evidence would constitute some evidence to support the commission's decision, under the circumstances here, we conclude the commission should re-examine the evidence and determine whether there exists evidence to support claimant's motion. Therefore, for this reason, we overrule the hospital's objection and the commission's second objection.
(¶ 7} After an examination of the magistrate's decision, an independent review of the record, pursuant to Civ.R. 53, and due consideration of the commission's and the hospital's objections, we overrule the objections and adopt the magistrate's findings of fact and conclusions of law. The hospital's request for a writ of mandamus is granted, and we remand this matter to the commission to vacate its December 10, 2010 order and, in a manner consistent with the magistrate's and this court's decisions, enter a new order that adjudicates claimant's September 21, 2010 motion.
Objections overruled; writ of mandamus granted and cause remanded.
CONNOR and McCORMAC, JJ, concur.
McCORMAC, J., retired of the Tenth Appellate District, assigned to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).
Rendered on August 13, 2012
KENNETH W. MACKE MAGISTRATE
(¶ 8} In this original action, relator, Cleveland Clinic Health System - East Region f.k.a. Meridia Health System d.b.a. South Pointe Hospital ("South Pointe Hospital" or "relator"), requests a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate the December 10, 2010 order of its staff hearing officer ("SHO") that grants the September 21, 2010 motion of respondent, Heather Ochs ("claimant"), for retroactive authorization of an August 3, 2010 surgery and to enter an order denying the motion.
Findings of Fact:
(¶ 9} 1. On February 2, 2008, claimant sustained an industrial injury while employed as a registered nurse with relator, a self-insured employer under Ohio's workers' compensation laws. On that date, while walking to her car, claimant slipped on ice and immediately felt pain in her lower back.
(¶ 10} 2. Relator certified the industrial claim (No. 08-815113) for a lumbar sprain.
(¶ 11} 3. On December 5, 2005, over two years prior to the industrial injury, claimant underwent lower back surgery performed by Peter Fragatos, M.D. In his operative report, Dr. Fragatos lists the pre-operative and post-operative diagnoses as "Ruptured disk at L5/S1 with gross instability."
(¶ 12} In his operative report, Dr. Fragatos describes the surgery he performed on December 5, 2005:
1. L5 bilateral laminectomy, foraminotomy, and facetectomy and S1 laminotomy.
2. Bilateral diskectomy at L5 with removal of ruptured disk.
3. Arthrodesis L5/S1 interbody infusion [sic] with peak system and bone morphogenetic protein substitute.
4. L5/S1 lateral arthrodesis with tetronic plating system and bone morphogenetic protein bone substitute.
(¶ 13} 4. On February 11, 2008, just nine days after the injury, attending physician, Louis Keppler, M.D., wrote:
IMAGING STUDIES: I am not pleased with positioning of the screws. There has been an extensive posterior decompression. I do not see any evidence of any remaining lamina or facet joints at L5-S1. She has an interbody device that is radiolucent. I do not see bone bridging L5-S1 disc space.
PLAN: I think it would be reasonable to consider removal of her instrumentation. I think ultimately however that the possibility of requiring a second stage anterior instrumentation with fusion and anterior fixation may be ...