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State ex rel. Mike Coates Construction Inc. v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

February 28, 2017

State ex rel. Mike Coates Construction, Inc. Relator,
v.
The Industrial Commission of Ohio and James E. Van Buskirk, Jr., Respondents.

         IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION

          On brief: Calfee, Halter & Griswold LLP, and Donald E. Lampert, for relator.

          On brief: Michael DeWine, Attorney General, and Cheryl J. Nester, for respondent Industrial Commission of Ohio.

          DECISION

          DORRIAN, J.

         {¶ 1} Relator, Mike Coates Construction, Inc., requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate the November 2, 2015 order of its staff hearing officer ("SHO") that denies relator's July 23, 2015 motion requesting the commission exercise its continuing jurisdiction over the September 25, 2002 order of the Ohio Bureau of Workers' Compensation that initially allowed the industrial claim of respondent James E. Van Buskirk, Jr., ("claimant") for lumbosacral sprain. Relator requests this court order the commission to enter an order that disallows the entire industrial claim on grounds that the industrial claim was fraudulently obtained based on an alleged September 3, 2002 injury.

         {¶ 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 recommends this court deny relator's request for a writ of mandamus.

         {¶ 3} Relator has filed the following objection to the magistrate's decision:

The Magistrate erred when he implied that [the] fact-finders' drawing of inferences relying upon their own common sense is limitless, rejecting Relator's request that the Industrial Commission exercise its Continuing Jurisdiction pursuant to Revised Code 4123.52 and hold a Hearing on Allowance of Workers' Compensation Claim 02-425333.

         {¶ 4} Relator requests a writ requiring the commission to exercise its continuing jurisdiction, pursuant to R.C. 4123.52, and to hold a hearing so that "facts may be found and evaluated as to whether [claimant] was indeed hurt at work or made up the alleged incident of September 3, 2002 as an initial means to perpetrate his fraud." (Relator's Objection at 2.) Relator argues that because claimant was found to have engaged in fraud related to his continuing receipt of temporary total disability compensation, the commission should hold a hearing to determine if claimant was actually injured at work in the first place. Relator contends that in finding the commission's rejection of relator's allegations to be appropriate, the magistrate implied that the commission's reliance on common sense is limitless. Finally, relator argues that the magistrate construed its argument incorrectly and clarifies that it was not arguing that it "must" be inferred but rather that it "should" be inferred from the February 21, 2014 Special Investigations Department report, and the May 8, 2014 district hearing officer's order that the September 25, 2002 claim allowance was also fraudulently obtained.

         {¶ 5} Relator points to State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, in support of its arguments. In Supreme Bumpers, the Supreme Court of Ohio stated that "in determining the merits of a [violation of a specific safety requirement] claim, the commission or its SHO, like any factfinder in any administrative, civil or criminal proceeding may draw reasonable inferences and rely on his or her own common sense in evaluating the evidence." (Emphasis added.) Id. at ¶ 69. We disagree with relator that the magistrate implied that the commission may rely, without limit, on common sense. To the contrary, in citing Supreme Bumpers, the magistrate used the term "reasonable"- which in and of itself constitutes a limit on the reliance on common sense. Furthermore, even if the magistrate misconstrued relator's argument that it "must" be inferred that the claim allowance was fraudulently obtained, the magistrate analyzed the SHO's determination by conducting an examination of the Anthony Bush, Adam Bush, and Mike Labey, Jr. affidavits and considered their similar statements as well as the length of time between the injury and the execution of the affidavits. Having considered the affidavits, we agree with the magistrate's determination that it was clearly within the fact-finding discretion of the SHO to reject them and to reject relator's inference that the injury itself was fraudulent.

         {¶ 6} On review of the magistrate's decision, an independent review of the record, and due consideration of relator's objection, we find the magistrate has properly determined the pertinent facts and applied the appropriate law. We therefore overrule relator's objection to the magistrate's decision and adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. Accordingly, relator's request for a writ of mandamus is hereby denied.

         Objection overruled; writ of mandamus denied.

          SADLER and LUPER SCHUSTER, JJ., concur.

         APPENDIX

         Rendered on October 19, 2016

         IN MANDAMUS

         MAGISTRATE'S DECISION

          KENNETH W. MACKE MAGISTRATE

         {¶ 7} In this original action, relator, Mike Coates Construction, Inc. ("Coates" or "relator"), requests a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate the November 2, 2015 order of its staff hearing officer ("SHO") that denies relator's July 23, 2015 motion that the commission exercise its continuing jurisdiction over the September 25, 2002 order of the Ohio Bureau of Workers' Compensation ("bureau") that initially allowed the industrial claim for lumbosacral sprain, and to enter an order that disallows the entire industrial claim on grounds that allegedly the industrial claim was fraudulently obtained based on an alleged September 3, 2002 injury.

         Findings of Fact:

         {¶ 8} 1. On September 4, 2002, James E. Van Buskirk, Jr., initially sought treatment from Edmund Csernyik, D.O., regarding a back injury that had allegedly occurred the day before, i.e., on September 3, 2002. Dr. Csernyik practices at Falls Family Practice, Inc.

         {¶ 9} 2. The September 4, 2002 office note of Dr. Csernyik states:

Comes in for treatment of a new Workman's Compensation Injury. Yesterday on 9/3/02 at approximately 11 AM, he was bending down to pick up a concrete form for a concrete wall. His left leg buckled, and he had a sharp pull and a burning sensation in his lumbosacral area and down into his left leg. He is still very uncomfortable in this area today with some left sided pain. Also woke up this morning with left cervical dorsal spasm and pain probably from sleeping in the wrong position trying to make the left leg comfortable.
Lumbosacral area exhibits spasm, pain on palpation and decreased range of motion. He does have some significant sciatic nerve irritation which gives him discomfort and parethesias down into the foot. There was no acute trauma other than the strain. I don't think x-rays are indicated at this time.
P: [One] We are going to treat this as an acute lumbosacral strain and sprain. He's much too sore for any manipulative therapy at this time. We are just going to have him use some heat at home.
[Two] Put him on Skelaxin, 400-mg (#60) 1 t.i.d. with a refill.
[Three] Ibuprofen, 800-mg (#60) 1 t.i.d. with a refill.
[Four] We got him some Vicodin ES, (#50) 1 q8h prn with no refills.
[Five] Got him Depo-Medrol, 80-mg IM.
[Six] Next appointment five days.

         {¶ 10} 3. On September 9, 2002, Van Buskirk returned to Dr. Csernyik. In his September 9, 2002 office note, Dr. Csernyik wrote:

In complaining of continued L/S pain from Workman's Comp injury. His upper body resolved which I think was just from sleeping in an awkward positon.
The lumbosacral area is slightly improved. There is still a lot of pain on palpation, spasm and decreased range of motion.
A: [One] L/S strain and sprain.
P: [One] We injected trigger areas in the right lumbosacral region with Marcaine and Depo-Medrol.
[Two] We are going to see him again in a week.
[Three] He continues off work and on same medications.
[Four] Commented about the Vicodin making him a little nauseated and causing constipation. I told him all narcotics would tend to do this, and he should use it very sparingly.

         {¶ 11} 4. On September 13, 2002, Van Buskirk filed a bureau form captioned "First Report of Injury, Occupational Disease or Death, " which the bureau designates as the FROI-1.

         {¶ 12} Under "Description of Accident, " Van Buskirk wrote: "Stripping form off concrete wall hurt lower back down into left leg. Upper shoulder left side."

         {¶ 13} On the portion of the form to be completed by the attending physician, Dr. Csernyik certified a diagnosis of lumbosacral strain and sprain.

         {¶ 14} On the portion of the form to be completed by the employer, the form presents the employer a choice to mark one of two boxes regarding certification or rejection of the claim. Coates failed to mark either box.

         {¶ 15} 5. The record contains a form letter dated September 16, 2002 from the bureau to relator. The letter asks the employer to either certify or reject the claim by completing the form.

         {¶ 16} In the spaces provided, the employer is identified as "Mike Coates Construction Co., Inc." and the title of the person completing the form is identified as "Joanne Coates, Secretary." "Certification" rather than "Rejection" is selected by a mark placed aside "Certification, " and "9/27/02" is entered in the space provided aside the "Date." However, in the space provided for "Employer's Signature" no signature is entered.

         {¶ 17} 6. On September 25, 2002, the bureau mailed an order allowing the claim for "sprain lumbosacral" based on a "[m]edical report from Dr. Csernyik." The bureau order also awarded temporary total disability ("TTD") compensation beginning September 5, 2002. The bureau order advises: "THIS DECISION BECOMES FINAL IF A WRITTEN APPEAL IS NOT RECEIVED WITHIN 14 DAYS OF RECEIVING THIS NOTICE." (Emphasis sic.)

         {¶ 18} 7. Relator did not administratively appeal the bureau's order of September 25, 2002.

         {¶ 19} 8. On November 20, 2002, Van Buskirk was examined by Douglas H. Musser, D.O., on referral from Dr. Csernyik. In his ...


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