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State ex rel. AVI Food Systems Inc. v. The Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

November 21, 2017

The State ex rel. AVI Food Systems, Inc., Relator,
v.
The Industrial Commission of Ohio and Paul Zapol Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Gottfried Sommers LLC, R. Mark Gottfried, and Sandra Becher Sommers, for relator.

         On brief:

          Michael DeWine, Attorney General, and LaTawnda N. Moore, for respondent Industrial Commission of Ohio.

         On brief:

          Dworken & Bernstein Co., L.PA., and Jonathan T. Stender, for respondent Paul Zapol.

          DECISION

          KLATT, J.

         {¶ 1} Relator, AVI Food Systems, Inc., commenced this original action in mandamus seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), to vacate its order granting permanent total disability ("PTD") compensation to respondent, Paul Zapol ("claimant"), and to enter an order denying claimant said compensation.

         {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who issued a decision, including findings of fact and conclusions of law. The magistrate found that Dr. Kaffen's report is some evidence supporting the grant of PTD compensation. Dr. Kaffen attributed the claimant's symptoms to an allowed condition. The magistrate noted that even though there was other evidence presented to the commission indicating that the claimant's symptoms were caused by nonallowed conditions, questions of credibility and the weight to be given evidence is within the discretion of the commission as factfinder. Therefore, the magistrate found that commission did not abuse its discretion in granting the claimant PTD compensation.

         {¶ 3} However, the magistrate also found that the commission abused its discretion when it adjusted the start date for the award of PTD compensation based upon the report of Dr. DeMicco, a report on which the commission did not rely in granting claimant PTD compensation. Citing State ex rel. Dingus v. Quinn Dev. Co., 70 Ohio St.3d 580 (1994), the magistrate found that even if a medical report supported an earlier start date for an award of compensation, that medical report is immaterial if the commission did not rely on that report when it awarded PTD compensation. Accordingly, the magistrate has recommended that we deny relator's request for a writ of mandamus to the extent it seeks to vacate the award of PTD compensation, but grant a limited writ of mandamus ordering the commission to use June 8, 2015, the date of Dr. Kaffen's report, as the start date for the award.

         {¶ 4} Relator has filed an objection to the magistrate's decision. Relator contends that Dr. Kaffen's report is internally inconsistent, and therefore, is not evidence upon which the commission could rely in granting the claimant PTD compensation. We disagree.

         {¶ 5} Relator's argument is premised on its assertion that Dr. Kaffen's report is internally inconsistent. We fail to see an inconsistency in Dr. Kaffen's report. Dr. Kaffen indicates that although surgery alleviated the claimant's disc protusion, the surgery did not resolve claimant's pain and related symptoms. Dr. Kaffen attributed the claimant's pain and symptoms to the allowed condition. Therefore, Dr. Kaffen's report is some evidence supporting the commission's grant of PTD compensation. The fact that there is other medical evidence in the record that attributes the claimant's symptoms to nonallowed conditions does not demonstrate that the commission abused its discretion as the factfinder. Therefore, we overrule relator's objection.

         {¶ 6} The claimant has also filed an objection to the magistrate's decision. The claimant argues that the magistrate erred when she found that the commission could not base the start date for PTD compensation on a medical report not relied upon by the commission in awarding PTD. Again, we disagree.

         {¶ 7} In Dingus, the Supreme Court of Ohio indicated that even though there may be evidence in the record that could support a different start date for PTD, that evidence is "immaterial" to a determination of the start date if it was not evidence on which the commission relied. Here, the commission did not rely on the report of Dr. DeMicco in awarding PTD. Therefore, pursuant to Dingus, the magistrate correctly determined that the commission abused its discretion when it adjusted the start date for claimant's PTD compensation based on the report of Dr. DeMicco. We also note that the commission did not file objections to the magistrate's decision. Because the magistrate did not err in applying Dingus, we overrule the claimant's objection.

         {¶ 8} Following an independent review of this matter, we find that the magistrate has properly determined the facts and applied the appropriate law. Therefore, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we grant a limited writ of mandamus ordering the commission to use June 8, 2015, the date of Dr. Kaffen's report, as the start date for the claimant's PTD award.

         Objections overruled; limited writ ...


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