State of Ohio ex rel. Brady C. Cribbs, Relator,
Industrial Commission of Ohio, et al., Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
& Gallucci, Co., L.PA., Frank L. Gallucci, III; Paul W.
Flowers Co., L.PA., and Paul W. Flowers, for relator.
Yost], Attorney General, and John R. Smart, for respondent
Industrial Commission of Ohio.
Consolo Law Firm Co., LPA, and Frank Consolo, for respondent
City of Brooklyn.
Michael DeWine, Attorney General, and John Smart, for
respondent Industrial Commission of Ohio.
1} Relator, Brady C. Cribbs, commenced this original
action in mandamus seeking an order compelling respondent,
Industrial Commission of Ohio ("commission"), to
vacate the August 29, 2017 order of its staff hearing officer
("SHO") and ordering the commission to proceed with
consideration of his claim. The SHO's order granted the
application of Cribbs' employer, respondent City of
Brooklyn, to suspend further consideration of Cribbs'
claim under R.C. 4123.651. For the following reasons, we deny
2} In accord with Civ.R. 53(C) and Loc.R. 13(M) of
the Tenth District Court of Appeals, we referred this matter
to a magistrate of this Court who issued a decision,
including findings of fact and conclusions of law, that is
appended to our decision. The magistrate found that Cribbs
failed to demonstrate a clear legal right to have the
suspension of his claim lifted, given his failure to fully
cooperate in the evaluation requested by his employer. The
magistrate also found that the commission did not abuse its
discretion when it suspended further consideration of
Cribbs' claim under R.C. 4123.651. As a result, the
magistrate recommends we deny Cribbs' petition for a writ
3} Cribbs has filed objections to the
magistrate's decision. Cribbs argues that the
commission's Medical Examination Manual
("manual") gives him the right to refuse
mental/behavioral testing by his employer's examining
doctor. Cribbs posits that his refusal constitutes good cause
under R.C. 4123.651(C). Based solely on this alleged good
cause, Cribbs argues the commission cannot suspend his claim.
4} The question before us is not whether Cribbs had
the right to refuse mental/behavioral testing. Rather, the
question is whether his refusal to subject himself to such
testing by his employer's examining doctor constitutes
good cause under R.C. 4123.651(C) so as to prevent his claim
from being suspended. We conclude it does not.
5} As stated by the magistrate, the commission
manual sets forth guidelines for its medical examiners. The
manual contains the express language that, "[t]his
Manual presents Commission policies for independent medical
examinations and medical file reviews." (App'x at
¶ 25.) The manual is not directed toward examinations
performed by an employer's doctor. An employer's
right to have a claimant examined is set forth in R.C.
4123.651(A) and (C), which in pertinent part provide:
(A) The employer of a claimant who is injured or disabled in
the course of his employment may require, without the
approval of the administrator or the industrial commission,
that the claimant be examined by a physician of the
employer's choice one time upon any issue asserted by the
employee or a physician of the employee's choice or which
is to be considered by the commission. * * *
(C) If, without good cause, an employee refuses to submit to
any examination scheduled under this section or refuses to
release or execute a release for any medical information,
record, or report that is required to be released under this
section and involves an issue pertinent to the condition
alleged in the claim, his right to have his claim for
compensation or benefits considered, if his claim is pending
before the administrator, commission, or a district or staff
hearing officer, or to receive any payment for compensation
or benefits previously granted, is suspended during the
period of refusal.
6} The commission manual argued by Cribbs has no
effect on the employer's right to have a claimant
examined pursuant to R.C. 4123.651(A). Moreover, if a
claimant's refusal to submit to, or to fully participate
in, an examination were to automatically constitute good
cause, R.C. 4123.651(C) would have no effect. We hold that
Cribbs' reliance on the manual as the basis for good
cause under R.C. 4123.651(C) is in error.
7} Cribbs has provided no other argument for why he
had good cause to refuse mental/behavioral testing by his
employer's doctor. Absent a showing of good cause,
suspension of the claim is required during the period of
refusal. R.C. 4123.651(C). For these reasons, we overrule
8} Subsequent to the submission of this matter to
the panel, respondent City of Brooklyn filed a notice of
supplemental authority. The commission timely filed a motion
to strike the notice of supplemental authority. We find that
the supplemental authority that was filed involved the
commission's authority under a section of law that is
inapplicable to this case. Therefore, we grant the
commission's motion to strike.
9} Based on our review of the magistrate's
decision, our independent review of the record, and due
consideration of Cribbs' objections, we find the
magistrate has properly stated the pertinent facts and
applied the appropriate law. We thus overrule Cribbs'
objections to the magistrate's decision and adopt the
magistrate's decision as our own, including the findings
of facts and conclusions of law in that decision.
Accordingly, Cribbs' petition for a writ of mandamus is
overruled; writ of mandamus denied; motion to strike
and SADLER, JJ., concur.