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State ex rel. Peterson v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

June 12, 2018

The State ex rel. William L. Peterson, Relator,
v.
Industrial Commission of Ohio and Minute Men, Inc., Respondents.

          IN MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION

          Seaman & Associates, Michael I. Madden, and Shaun H. Kedir, for relator.

          Michael DeWine, Attorney General, and Natalie Tackett, for respondent Industrial Commission of Ohio.

          Barno Law, LLC, John C. Barno, and Jamison S. Speidel, for respondent Minute Men, Inc.

          DECISION

          BRUNNER, J.

         {¶ 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 request.

         {¶ 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 claim.
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 objection instanter.

         {¶ 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.

         Objection overruled; petition for writ of mandamus denied.

          BROWN, P.J, and DORRIAN, J, concur.

         APPENDIX

         Rendered on January 30, 2018

         IN MANDAMUS

         MAGISTRATE'S DECISION

          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 tendonitis.

         {¶ 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 consultation."

         {¶ 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 psychological condition.

         {¶ 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 1, 2016.

         {¶ 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.

(Emphasis sic.)

         {¶ 22} In his September 16, 2016 narrative report, Dr. ...


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