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State ex rel. Owens v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

March 29, 2018

State ex rel. John R. Owens, Relator,
v.
Industrial Commission of Ohio et al., Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Law Offices of Kurt M. Young, LLC, Kurt M. Young, and Emil G. Gravelle, III, for relator.

         On brief:

          Michael DeWine, Attorney General, and John Smart, for respondent Industrial Commission of Ohio.

          DECISION

          KLATT, J.

         {¶ 1} Relator, John R. Owens, commenced this original action in mandamus seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying him reimbursement for a prescription medication ("Voltaren gel") and to enter a new order that requires the commission to reimburse him for that medication.

         {¶ 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, which is appended hereto. The magistrate found that the commission did not violate relator's due process rights during a drug utilization review of relator's medications. The magistrate further found that Dr. Bridger's report constituted some evidence supporting the commission's decision to deny reimbursement for the Voltaren gel. Therefore, the magistrate has recommended that we deny relator's request for a writ of mandamus.

         {¶ 3} Relator has filed objections to the magistrate's decision. In his first objection, relator contends that his due process rights were violated because a nurse working for the employer's managed care organization ("MCO") initiated the review of relator's medications. We disagree.

         {¶ 4} Because relator was provided with reasonable notice and a reasonable opportunity to be heard, we agree with the magistrate that the commission did not violate relator's due process rights. State ex rel. Charles Steinbrunner v. Indus. Comm., 10th Dist. No. 05AP-626, 2006-Ohio-3444, ¶ 16, quoting State ex rel. Finley v. Dusty Drilling, Co., Inc., 2 Ohio App.3d 323, 324-25 (10th Dist.1981) (" '[procedural due process includes the right to a reasonable notice of hearing as well as a reasonable opportunity to be heard' "). Following the MCO's nonbinding decision, relator received two administrative hearings on the drug reimbursement issue. The fact that the employer's MCO initiated the drug utilization review, rather than the bureau or the commission, does not impact the due process analysis. Relator had notice and participated in multiple levels of administrative review. Therefore, we overrule relator's first objection.

         {¶ 5} In his second objection, relator contends that Dr. Bridger's report is not some evidence on which the commission could rely because it allegedly reflects an "uncertain opinion." Again, we disagree.

         {¶ 6} Contrary to relator's assertion, we fail to discern uncertainty in Dr. Bridger's report. Despite Dr. Bridger's use of the word "appears, " we agree with the magistrate that Dr. Bridger's report clearly indicates he believed prescribing Voltaren gel was unnecessary given the Celebrex prescription. Because Dr. Bridger's report is some evidence on which the commission could rely, the commission did not abuse its discretion in denying relator's request for reimbursement for the Voltaren gel. Therefore, we overrule relator's second objection.

         {¶ 7} 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 law contained therein. In accordance with the magistrate's decision, we deny relator's request for a writ of mandamus.

         Writ of mandamus denied.

          TYACK and SADLER, JJ., concur.

         APPENDIX

         Rendered on September 26, 2017

         MAGISTRATE'S ...


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