State ex rel. John R. Owens, Relator,
Industrial Commission of Ohio et al., Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Offices of Kurt M. Young, LLC, Kurt M. Young, and Emil G.
Gravelle, III, for relator.
Michael DeWine, Attorney General, and John Smart, for
respondent Industrial Commission of Ohio.
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
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
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
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.
of mandamus denied.
and SADLER, JJ., concur.
on September 26, 2017