State ex rel. Mike Coates Construction, Inc. Relator,
The Industrial Commission of Ohio and James E. Van Buskirk, Jr., Respondents.
MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION
brief: Calfee, Halter & Griswold LLP, and Donald E.
Lampert, for relator.
brief: Michael DeWine, Attorney General, and Cheryl J.
Nester, for respondent Industrial Commission of Ohio.
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
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
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
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
overruled; writ of mandamus denied.
and LUPER SCHUSTER, JJ., concur.
on October 19, 2016
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.
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.
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
[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
[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.
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
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
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 ...