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State ex rel. Coseno v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

December 12, 2017

The State ex rel. Joseph L. Coseno, Relator,
v.
Industrial Commission of Ohio and City of Ashland, Respondents.

         IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION

          Nager, Romaine & Schneiberg, Jerald A. Schneiberg, and Corey J. Kuzma, for relator.

          Michael DeWine, Attorney General, and Andrew J. Alatis, for respondent Industrial Commission of Ohio.

          Mansour Gavin LPA, James A. Budzik, and Tracey S. McGurk, for respondent City of Ashland.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Relator, Joseph L. Coseno, commenced this original action requesting this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying his motion for temporary total disability ("TTD") compensation and ordering the commission to find he is entitled to an award of TTD.

         {¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals, this court referred the matter to a magistrate. The magistrate issued a decision, appended hereto, including findings of fact and conclusions of law, and recommended that this court deny Coseno's request for a writ of mandamus.

         I. Facts and Procedural History

         {¶ 3} As the magistrate sets forth more fully, Coseno sustained a work-related injury on August 26, 2013, and his workers' compensation claim was allowed for unilateral inguinal hernia left, left ilioinguinal neuralgia/neuritis, and major depressive disorder single episode moderate. In a November 12, 2014 office note, Todd Hochman, M.D., opined Coseno had not yet reached maximum medical improvement ("MMI"). Subsequently, Coseno moved to Florida where he was under the care of Jane Bistline, M.D. Dr. Bistline reported during a March 18, 2015 evaluation that Coseno may benefit from an ilioinguinal nerve block. Coseno then returned to Ohio where he saw Dr. Hochman on April 8, 2015. Dr. Hochman completed a Medco-14 form certifying that Coseno was unable to return to his former position of employment but would be able to return to work with restrictions from February 26 through July 20, 2015.

         {¶ 4} On April 26, 2015, L.J. Mascarenhas, M.D., completed a physician review of Coseno's injuries and treatment. Dr. Mascarenhas noted Coseno had been receiving TTD compensation since August 27, 2013, and Dr. Mascarenhas concluded Coseno had reached MMI. However, in an April 29, 2015 report, Dr. Hochman explained that he did not agree with Dr. Mascarenhas' physician review and stated that, in his opinion, Coseno had not yet reached MMI. Dr. Hochman specifically noted until Coseno receives a repeat ilioinguinal nerve block and all treatment options are exhausted, Coseno should be entitled to continuation of his TTD benefits.

         {¶ 5} Coseno filed an application for TTD compensation on April 10, 2015. A district hearing officer ("DHO") heard the matter on June 12, 2015 and denied Coseno's request, concluding there was insufficient competent medical evidence to support the requested period of TTD compensation. The DHO specifically noted that although Dr. Bistline opined Coseno may benefit from a left inguinal injection, there had been no formal C-9 request for that treatment. The DHO also noted that while Dr. Hochman saw Coseno on April 8, 2015, Dr. Hochman backdated the request for TTD from February 26, 2015. Finally, the DHO noted that Dr. Mascarenhas opined that Coseno's condition had reached MMI.

         {¶ 6} On July 1, 2015, Coseno saw Dr. Hochman again, at which time Dr. Hochman stated he would submit a C-9 form requesting additional injections with ultrasound guidance. Subsequently, on July 22, 2015, a staff hearing officer ("SHO") heard Coseno's appeal from the DHO order, and the SHO order also denied the requested period of TTD compensation. The SHO concluded Dr. Hochman's certification of disability beginning February 26, 2015 was not based on a contemporaneous physical examination, and the SHO also relied on Dr. Mascarenhas' April 26, 2015 file review opining Coseno had reached MMI. After the commission refused Coseno's further appeal, Coseno filed this mandamus request. On July 27, 2017, the magistrate issued a decision recommending this court deny Coseno's request for a writ of mandamus.

         II. Objection to the Magistrate's Decision

         {¶ 7} Coseno sets forth the following objection to the magistrate's decision:

The magistrate erred in denying Relator's request for a writ of mandamus by relying on the Industrial Commission Committee Order mailed August 11, 2015.

         III. Discussion

         {¶ 8} In his sole objection to the magistrate's decision, Coseno argues the magistrate erroneously concluded there was some evidence to support the order of the commission denying the request for TTD compensation.

         {¶ 9} Initially, we note Coseno argues the SHO's order denying TTD compensation "contains too many mistakes of law and facts to be relied upon." (Coseno's Obj. at 5.) However, Coseno alerted the magistrate to these errors and discrepancies in his brief, and the magistrate considered and disposed of them correctly. Though Coseno now attempts to reargue his case in this regard, he does not identify any errors of fact or law in the magistrate's decision related to the mistakes contained in the SHO's decision.

         {¶ 10} Coseno additionally argues the commission erroneously based its decision to deny Coseno's request for TTD compensation on the medical report of Dr. Mascarenhas, who opined that Coseno's conditions had reached MMI. For the first time in these proceedings, Coseno argues Dr. Mascarenhas' report is not "some evidence" because it did not set forth a date on which Coseno should be found to have reached the treatment plateau.

         {¶ 11} We note, however, that Coseno did not challenge the validity of Dr. Mascarenhas' report in either the proceedings before the commission or the proceedings before the magistrate. Indeed, the magistrate specifically noted that Coseno did not challenge Dr. Mascarenhas' report. (Mag.'s Decision at ¶ 34.) As the Supreme Court of Ohio has explained, a party's failure to raise an issue in the administrative proceedings precludes the party from arguing the issue for the first time in a mandamus action. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 84 (1997). See also State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 10th Dist. No. 13AP-190, 2014-Ohio-2616, ¶ 8, quoting State ex rel. Burns Internatl. v. Smith, 10th Dist. No. 05AP-488, 2006-Ohio-6713, ΒΆ 3 ("a failure to pursue [an] issue administratively 'bars this court from addressing it de novo in this action' ...


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