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State ex rel. Dana Driveshaft Manufacturing, LLC v. Ford

Court of Appeals of Ohio, Tenth District

September 19, 2013

State of Ohio ex rel. Dana Driveshaft Manufacturing, LLC, Relator,
v.
Paul W. Ford, Jr., and Industrial Commission of Ohio, Respondents.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

Bugbee & Conkle, LLP, and Janelle M. Matuszak, for relator.

Larrimer and Larrimer, and Thomas L. Reitz, for respondent Paul W. Ford, Jr.

Michael DeWine, Attorney General, and Naveen V. Ramprasad, for respondent Industrial Commission of Ohio.

DECISION

SADLER, J.

(¶ 1} In this original action, relator, Dana Driveshaft Manufacturing, LLC, requests a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its award of permanent total disability ("PTD") compensation to respondent, Paul W. Ford, Jr. ("claimant"), and to enter an order denying said compensation.

I. BACKGROUND

(¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(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 the commission abused its discretion by relying on medical reports that do not constitute some evidence upon which the commission can rely to support the award of PTD compensation. Accordingly, the magistrate recommended that this court grant the requested writ of mandamus.

II. OBJECTIONS

A. Claimant's Objection

The Magistrate erred in concluding that neither Dr. Brown's Medco-14 nor Dr. Brown's report provide evidence that the allowed conditions independently prelude [sic] the claimant from returning to sustained remunerative employment.

B. The Commission's Objections

1. The Magistrate erred in substituting his judgment for that of the commission as the trier of fact, as Dr. Brown's medical reports constituted some evidence that one or more allowed conditions of the claim independently prevented the claimant from returning to sustained remunerative employment.
2. The Magistrate erred in ordering a writ of mandamus requiring the commission to deny PTD compensation, as, even excluding Dr. Brown's report, the remainder of the medical evidence reveals Ford has a limited ability to return to work solely as the result of his allowed medical conditions and an analysis of the non-medical factors is required before a decision could be made as to the issue of PTD.

III. DISCUSSION

(¶ 3} To award PTD compensation, the commission relied upon the MEDCO-14 and August 11, 2011 report of Dr. Brown. Claimant's objection and the commission's first objection to the magistrate's decision challenge the magistrate's conclusion that neither report provides some evidence upon which the commission could rely to award PTD.

(¶ 4} This issue has been thoroughly addressed by the magistrate in his decision. For the reasons stated therein, we conclude the reports of Dr. Brown expressly relied upon by the commission do not constitute some evidence upon which the commission could rely. Accordingly, we overrule the commission's first objection and claimant's sole objection to the magistrate's decision.

(¶ 5} In its second objection, the commission contends that if this court agrees with the magistrate's conclusions regarding Dr. Brown's reports, the proper remedy is not to grant a full writ of mandamus but, rather, to grant a limited writ of mandamus so that the commission can consider claimant's non-medical factors in conjunction with the medical restrictions indicated in the remaining medical reports. We find the commission's second objection well-taken.

(¶ 6} Accordingly, the commission's second objection is sustained.

IV. CONCLUSION

(¶ 7} Upon review of the magistrate's decision, an independent review of the record, and due consideration of the objections presented by claimant and the commission, we find that the magistrate has properly stated the pertinent facts and applied the appropriate law. Therefore, with the exception of the remedy recommended by the magistrate, we adopt the magistrate's decision.

(¶ 8} In accordance with our decision, we overrule the commission's first objection and claimant's sole objection to the magistrate's decision, we sustain the commission's second objection to the magistrate's decision, and reject the magistrate's recommendation to issue a full writ of mandamus. Accordingly, we issue a limited writ of mandamus ordering the commission to vacate its order awarding PTD compensation to claimant and to issue a new order, either granting or denying the requested compensation, after the requisite analysis.

Objections overruled in part, sustained in part; limited writ of mandamus granted.

TYACK and DORRIAN, JJ., concur.

APPENDIX

Rendered on May 13, 2013

IN MANDAMUS

MAGISTRATE'S DECISION

MAGISTRATE KENNETH W. MACKE

(¶ 9} In this original action, relator, Dana Driveshaft Manufacturing, LLC, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its award of permanent total disability ("PTD") compensation to respondent Paul W. Ford, Jr. ("claimant") and to enter an order denying the compensation.

Findings of Fact:

(¶ 10} 1. On September 30, 1998, prior to the industrial injury at issue here, claimant underwent a left total hip arthroplasty.

(¶ 11} 2. On April 29, 1999, claimant injured his left hip while employed as a machine operator for relator, a self-insured employer under Ohio's workers' compensation laws. On that date, claimant fell backwards onto the floor striking his left hip and buttocks.

(¶ 12} 3. On April 30, 1999, claimant presented to the emergency room of St. Rita's Medical Center located at Lima, Ohio. X-rays were taken. The interpreting radiologist wrote, "findings are suggestive of loosening of the femoral stem component."

(¶ 13} 4. The industrial claim (No. 99-399473) was initially certified by relator for "contusion of left hip."

(¶ 14} 5. On June 7, 1999, claimant was examined by attending physician William A. Sanko, M.D., who wrote:

Paul returns today. He is status post left total hip arthroplasty. He had a fall at work back on 04/29/99, injuring his left hip. He also complains today of some persistent left knee pain since the injury. Left hip and groin pain is persisting with pain on the medial aspect of his thigh. He has noticed some painful catching and clicking involved in the left knee since the injury.
* * *
X-RAYS of bilateral knees were taken today including standing views and are normal. X-ray of his left hip shows the bones to be in place, some questionable loosening of the femoral component.
IMPRESSION:
[One] Left knee patellofemoral pain syndrome.
[Two] Probable loosening of cement/bone interface, left total
hip femoral stem.
RECOMMENDATIONS: I had a long discussion with Paul. At this point, I am afraid that this fall several weeks ago may have loosened his left femoral component. We have given him several weeks now since the fall to see if the pain has
persisted and unfortunately it has. We have talked to him about possible revision of the femoral stem. At this point, I think there is very little chance of this healing or bone growing at the cement/bone interface. We will try again through the remainder, letting him work, giving him some work ...

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