The State ex rel. William L. Peterson, Relator,
Industrial Commission of Ohio and Minute Men, Inc., Respondents.
MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION
& Associates, Michael I. Madden, and Shaun H. Kedir, for
Michael DeWine, Attorney General, and Natalie Tackett, for
respondent Industrial Commission of Ohio.
Law, LLC, John C. Barno, and Jamison S. Speidel, for
respondent Minute Men, Inc.
1} Relator, William L. Peterson, seeks a writ of
mandamus to order respondent Industrial Commission of Ohio
("commission") to vacate the March 21, 2017 order
of its staff hearing officer ("SHO") to the extent
that it denies a January 6, 2017 C-9 request for a referral
for a "psych consult" for "medication
management" and to enter an amended order granting the
January 6, 2017 C-9. For the reasons following, we deny the
2} Peterson argues it was an abuse of discretion for
the SHO to rely on a September 16, 2016 report and a November
7, 2016 addendum from psychologist Michael A. Murphy, Ph.D.,
in denying a requested referral. Peterson contends that Dr.
Murphy's reports are not some evidence on which the
commission could rely to deny the C-9 request because Dr.
Murphy is not a licensed psychiatrist.
3} We referred this matter to a magistrate of this
Court pursuant to Civ.R. 53(C) and LocR. 13(M) of the Tenth
District Court of Appeals. The magistrate issued the appended
decision, including findings of fact and conclusions of law.
The magistrate found that the record fails to show any effort
on Peterson's part to raise the issue of Dr. Murphy's
qualifications via his administrative appeals at the
commission. The magistrate observed that the record contains
no transcript of the administrative hearings and that
Peterson had not submitted a memorandum of law on the issue
before the SHO or the commission. Our magistrate stated,
"[e]ven after the issuance of the SHO's order of
March 21, 2017, [Peterson] submitted no memorandum to the
commission in support of his appeal of the SHO's order of
March 21, 2017." (App'x at ¶ 55.)
4} Our magistrate concluded that Peterson's
failure to raise the issue of Dr. Murphy's qualifications
administratively at the commission bars him from raising the
issue in this mandamus action. State ex rel Holwadel v.
Hamilton Cty. Bd. of Elections, 144 Ohio St.3d 579,
2015-Ohio-5306, ¶ 47, citing State ex rel. Quarto
Mining Co. v. Foreman, 79 Ohio St.3d 78 (1997). The
magistrate found that Peterson has failed to meet his burden
to show entitlement to relief in mandamus and that it should
accordingly be denied.
5} Peterson timely filed an objection to the
magistrate's findings and memorandum in support.
Peterson's filing does not enumerate a specific
objection, but contains the following statement:
The issue on appeal is purely legal: whether a
psychologist's opinion on the prescription of medication
can constitute "some evidence" and rebut a
psychiatrist's opinion in a workers' compensation
Peterson is arguing that psychologist Dr. Murphy's
opinion on medication cannot constitute "some
evidence" over his treating psychiatrist's opinion
because a psychologist lacks the medical expertise and legal
authority to prescribe medication.
(Footnote omitted.) (Feb. 21, 2018 Peterson's Obj. to
Mag. Decision at 3-4.)
6} The commission timely opposed Peterson's
objection to the magistrate's decision, arguing that the
decision was based on some evidence and that the magistrate
had decided the matter correctly. Peterson's employer at
the time of his industrial injury, Minute Men, Inc., was
granted leave to file its response to Peterson's
7} Having examined the magistrate's decision,
conducted an independent review of the record pursuant to
Civ.R. 53, and undertaken due consideration of the objection,
we overrule Peterson's objection. We adopt the
magistrate's decision as our own, including its findings
of fact and conclusions of law. In accordance with the
magistrate's decision, we deny the requested writ.
overruled; petition for writ of mandamus denied.
P.J, and DORRIAN, J, concur.
on January 30, 2018
KENNETH W. MACKE, MAGISTRATE J.
8} In this original action, relator, William L.
Peterson, requests a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to
vacate the March 21, 2017 order of its staff hearing officer
("SHO") to the extent that it denies a January 6,
2017 C-9 request for a referral for a "psych
consult" for "medication management, " and to
enter an amended order granting the January 6, 2017 C-9.
According to relator, the SHO's reliance on a September
16, 2016 report from psychologist Michael A. Murphy, Ph.D.,
and a November 7, 2016 addendum was an abuse of discretion
because Dr. Murphy is allegedly not competent as a
psychologist to render the opinion on which the commission
relied to deny the C-9 request. Findings of Fact:
9} 1. On December 20, 2011, relator sustained an
industrial injury while employed with respondent Minute Men,
Inc., a self-insured employer under Ohio's workers'
compensation laws. On his application for workers'
compensation benefits, relator alleged that the injury
occurred when he was "moving machinery and got pinned
between a hopper [and] payloader." He alleged an injury
to his "chest [and] upper back."
10} 2. The industrial claim (No. 11-866049) is
allowed for multiple physical conditions:
Closed fracture left fifth rib; contusion left chest wall;
sprain/strain left shoulder; left ulnar neuropathy; left
biceps tenosynovitis; substantial aggravation of pre-existing
left shoulder impingement syndrome; left rotator cuff
11} 3. On November 24, 2015, relator was examined by
psychologist Raymond Richetta, Ph.D., who was employed by
Weinstein & Associates, Inc. In his six-page narrative
report, Dr. Richetta opined that relator suffers from
"Recurrent Depressive Disorder, Late Onset, with Pure
Dysthymic Syndrome, Mild, " and that the psychological
condition is proximately caused by the industrial injury. Dr.
Richetta wrote "[h]e would benefit from undergoing
psychotherapy and a psychotropic medication
12} 4. On January 25, 2016, relator moved for an
additional claim allowance. In support, relator submitted the
November 24, 2015 report of Dr. Richetta.
13} 5. Relator's January 25, 2016 motion
prompted a request from the employer to have relator examined
by psychologist Douglas Pawlarczyk, Ph.D. In his report dated
February 23, 2016, Dr. Pawlarczyk supported allowance of the
14} 6. Following an April 19, 2016 hearing, an SHO
issued an order additionally allowing the claim for
"recurrent depressive disorder, late onset, with pure
dysthymic syndrome, mild." The SHO's order specifies
reliance on the February 23, 2016 report of Dr. Pawlarczyk.
15} 7. On May 11, 2016, another SHO mailed an order
refusing the employer's appeal from the SHO's order
of April 19, 2016.
16} 8. Earlier, on March 31, 2016, relator first saw
psychologist Kent Rozel, Ph.D., who was also employed by
Weinstein & Associates, Inc.
17} 9. On April 19, 2016, Dr. Rozel completed a form
provided by the Ohio Bureau of Workers' Compensation
("bureau") captioned "Request for Medical
Service Reimbursement or Recommendations for Additional
Conditions for Industrial Injury or Occupational
Disease." The bureau designates the form as a C-9. On
the C-9, Dr. Rozel requested approval for 13 more
"individual psychotherapy" sessions to be conducted
over a six-month period. The self-insured employer approved
Dr. Rozel's April 19, 2016 C-9 request indicating that
the sessions should be completed by September 30, 2016.
18} 10. Relator saw Dr. Rozel on May 12, June 9, and
June 23, 2016.
19} 11. On June 24, 2016, Dr. Rozel completed
another C-9 on which he requested approval for "Referral
for a Psych. Consult for Medication MGMT [sic] with a BWC
Certified Provider." The request was for one consult. On
the C-9, the self-insured employer approved the C-9 request
and indicated that the consult must be completed by September
20} 12. On July 14, 2016, Dr. Rozel completed a
Medco-14 supporting TTD compensation. On August 2, 2016,
relator moved for the payment of TTD compensation based on
Dr. Rozel's Medco-14.
21} 13. Prompted by relator's request for TTD
compensation, at the employer's request, relator was
examined by Dr. Murphy on September 16, 2016. In his
nine-page narrative report, at page three, Dr. Murphy states:
Unrelated Alcohol/Drug Abuse: The Injured Worker
reports he consumes six or more beers a day. His use of
alcohol results in impairment. He reports use of marijuana
(last used - "I can't remember"), cocaine, and
crack cocaine (mid-1980s). When asked if he had used any
other drugs in the past, he stated, "I can't
remember." He underwent a six-month inpatient drug rehab
at Fresh Start (1998). He again underwent drug rehab in
Summit County (2014). He has attended AA and NA in the past.
He smokes five cigarettes a day.
22} In his September 16, 2016 narrative report, Dr.