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State ex rel. Levandowski v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

March 30, 2017

The State ex rel. Richard J. Levandowski, Relator,
v.
Industrial Commission of Ohio and FirstEnergy Corp., Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Nager, Romaine & Schneiberg Co., LPA, Jerald A. Schneibert, and C. Bradley Howenstein, for relator.

         On brief:

          Michael DeWine, Attorney General, and Lisa R. Miller, for respondent Industrial Commission of Ohio

         On brief:

          Roetzel & Andress, LPA, Robert E. Blackham, and Nathan Pangrace, for respondent FirstEnergy Corp.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Relator Richard J. Levandowski initiated this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying his application for temporary total disability ("TTD") compensation and to enter an order finding that he is entitled to that compensation.

          {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law. The magistrate determined that Levandowski has not demonstrated that the commission abused its discretion in denying his application for TTD compensation. The magistrate also determined that the commission stated the evidence on which it relied, in compliance with State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481 (1983) and State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991). Thus, the magistrate recommends this court deny Levandowski's request for a writ of mandamus.

         {¶ 3} Levandowski has filed objections to the magistrate's decision. First, Levandowski argues the magistrate erred in not finding that the commission's decision denying his request for TTD compensation violated Mitchell because the commission failed to state the evidentiary basis for its decision. He claims the commission's decision is unclear as to whether it relied on the reports of Donald J. Tosi, Ph.D., in denying his request for TTD compensation. Second, Levandowski argues the magistrate erred in not finding that the commission abused its discretion in denying his request for TTD compensation. In support of this objection, Levandowski asserts the magistrate did not properly consider the fact that Dr. Tosi agreed with the finding of James M. Medling, Ph.D., that at least part of Levandowski's depression was caused by the allowed low back condition in his claim. Dr. Medling opined that Levandowski's allowed psychological condition rendered him temporarily and totally disabled. Levandowski reasons that the evidence, including Dr. Tosi's reports, proved that his disability resulted from his employment injury.

         {¶ 4} Levandowski's objections to the magistrate's decision essentially set forth the same arguments that the magistrate considered and sufficiently addressed. We agree with the magistrate's thorough analysis of the pertinent issues in this action. As the magistrate explained, the commission complied with the requirement in Mitchell and Noll that the commission indicates the evidence it relied on in reaching its decision. The commission's decision denying TTD compensation not only indicates that the denial was based on Dr. Tosi's reports, but it details the portions of those reports on which the commission relied. Additionally, the commission's decision to deny the requested TTD compensation was not an abuse of discretion because Dr. Tosi's reports constituted some evidence in support of the decision. While Dr. Tosi acknowledged Levandowski's allowed condition of major depressive disorder, he opined that non-work-related factors contributed significantly to the severity of his depression, and that there was an absence of convincing evidence that Levandowski had been temporarily and totally disabled as a result of the allowed psychological condition. Thus, Dr. Tosi's reports supported the commission's denial of Levandowski's request for TTD compensation. For these reasons, and the reasons set forth in the magistrate's decision, we find that Levandowski's objections lack merit.

         {¶ 5} Following our independent review of the record pursuant to Civ.R. 53, we find the magistrate correctly determined that Levandowski is not entitled to the requested writ of mandamus. The magistrate properly applied the pertinent law to the salient facts. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. We therefore overrule Levandowski's objections to the magistrate's decision and deny his request for a writ of mandamus.

         Objections overruled; writ of mandamus denied.

          TYACK, P. J, and BROWN, J, concur

         APPENDIX

         Rendered on October 25, 2016

         IN ...


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