The State ex rel. Joseph L. Coseno, Relator,
Industrial Commission of Ohio and City of Ashland, Respondents.
MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION
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.
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.
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
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.
Objection to the Magistrate's Decision
7} Coseno sets forth the following objection to the
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.
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, ¶ 3 ("a failure to pursue [an]
issue administratively 'bars this court from addressing
it de novo in this action' ...