The State ex rel. Omni Manor, Inc., Relator,
Industrial Commission of Ohio et al., Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Manchester Newman & Bennett, LPA, and Thomas F. Hull, for
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.
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.
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
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
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.
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.
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.
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
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) ...