State ex rel. Omni Manor, Inc. v. Industrial Commission of Ohio

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Manchester Newman & Bennett, LPA, and Thomas F. Hull, for relator.

          Dave Yost, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio.

          OnGreen Haines Sgambati, Co., LPA, and Shawn D. Scharf, for respondent Diana Garringer.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Relator, Omni Manor, Inc. ("Omni Manor"), filed this original action seeking a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the commission"), to vacate its order authorizing the surgery requested by respondent, Diana Garringer ("claimant"), and ordering the commission to deny the request for the surgery.

         {¶ 2} This court referred the matter to a magistrate pursuant to Civ.R.53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate rendered a decision that includes findings of fact and conclusions of law. The magistrate's decision, which is appended hereto, recommends this court deny Omni Manor's request for a writ of mandamus, leaving in place the commission's order granting claimant's request for a total shoulder arthroplasty following her workplace injury to her shoulder rotator cuff. Omni Manor filed objections to the magistrate's decision, and the matter is now before the court for our independent review.

         I. Objections to the Findings of Fact

         {¶ 3} Omni Manor sets forth three objections to the magistrate's findings of fact. We address them each in turn.

         A. Finding of Fact No. 6

         {¶ 4} First, Omni Manor objects to Finding of Fact No. 6, arguing it mischaracterizes the procedural posture of the case prior to Omni Manor initiating this original action in mandamus. Though Omni Manor asserts it is challenging Finding of Fact No. 6, it appears from the substance of its objection that Omni Manor is actually objecting to Finding of Fact No. 6 and Finding of Fact No. 7, which state in their entirety:

6. Relator's further administrative challenges were unsuccessful and claimant's claim remained additionally allowed for right shoulder rotator cuff tear.

7. Relator pursued the matter in the common pleas court; however, relator was ultimately unsuccessful. As a result, claimant's claim continued to be allowed for right shoulder rotator cuff tear.

(App'x at ¶ 22, 23.)

         {¶ 5} We agree with Omni Manor that the magistrate's decision erroneously states that Omni Manor pursued the matter in common pleas court. A review of the record indicates Omni Manor did not pursue the matter in common pleas court pursuant to R.C. 4123.512. Accordingly, we sustain the portion of Omni Manor's objection related to the reference to the procedural history in common pleas court.

         {¶ 6} However, Omni Manor additionally argues in this objection that the magistrate incorrectly analyzed the facts of the prior history of this case and asserts this finding of fact should contain a more complete explanation of the non-allowed conditions and why Omni Manor sought in the administrative proceedings to press for further distinction between the allowed and non-allowed conditions present in claimant's injured shoulder. This argument appears to be an attempt by Omni Manor to frame the factual findings in order to force a different legal conclusion. Having reviewed the record, we find no error in the magistrate's explanation of the procedural history of the matter, except for the erroneous reference to filings in common pleas court. Thus, we sustain in part and overrule in part this objection.

         B. Finding of Fact No. 8

         {¶ 7} In its next objection, Omni Manor argues the magistrate erred in Finding of Fact. No. 8 when it failed to fully describe the C-9 and the report of David A. Tonnies, M.D. Omni Manor asserts these documents contain errors and fail to fully analyze the allowed conditions in reference to the non-allowed conditions. Again, this is an attempt by Omni Manor to restate the facts in order to compel a different legal conclusion. The magistrate's finding of fact is an accurate summary of Dr. Tonnies' C-9 and report. We overrule this objection.

         C. Finding of Fact No. 10

         {¶ 8} In its third and final objection to the findings of fact, Omni Manor argues Finding of Fact No. 10 does not point out alleged deficiencies in the SHO's order and does not sufficiently emphasize that a total shoulder arthroplasty is not the usual or customary treatment for a rotator cuff tear. As in its previous two objections, Omni Manor once again attempts to reframe to the factual findings in order to force a different legal conclusion. However, having reviewed the record, we find that the magistrate's Finding of Fact. No. 10 is an accurate summary and description of the SHO's order. We overrule Omni Manor's third objection to the findings of fact.

         II. Objections to Conclusions of Law

         {¶ 9} Omni Manor additionally objects to the magistrate's conclusions of law. Omni Manor sets forth three objections asserting (1) Dr. Tonnies' report and C-9 do not constitute "some evidence" sufficient to authorize the surgical procedure of total shoulder arthroplasty; (2) the magistrate failed to sufficiently analyze why the total shoulder arthroplasty was independently required to treat the allowed condition; and (3) the magistrate erred in its ultimate legal conclusion that Omni Manor's writ of mandamus should be denied. Taken together, these three objections reflect the same argument Omni Manor has made throughout these proceedings: that the commission abused its discretion in authorizing the total shoulder arthroplasty as treatment for claimant's rotator cuff tear.

         {¶ 10} As the magistrate noted, a relator seeking mandamus must demonstrate a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Gill v. School Emps. Retirement Sys. of Ohio, 121 Ohio St.3d 567, 2009-Ohio-1358, ¶ 18. A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliot v. Indus. Comm., 26 Ohio St.3d 76 (1986). However, where the evidence contains some evidence to support the commission's findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987).

         {¶ 11} Omni Manor argues the commission abused its discretion in relying on Dr. Tonnies' report and C-9 as "some evidence" to support authorizing the total shoulder arthroplasty. Specifically, Omni Manor argues Dr. Tonnies' report and C-9 do not satisfy the test outlined in State ex rel. Miller v. Indus. Comm., 71 Ohio St.3d 229 (1994). As the magistrate notes, the three-pronged test set forth in Miller for the authorization of medical services asks (1) are the medical services reasonably related to the industrial injury that is the allowed condition?; (2) ...