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State ex rel. Cribbs v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

July 16, 2019

State of Ohio ex rel. Brady C. Cribbs, Relator,
v.
Industrial Commission of Ohio, et al., Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Plevin & Gallucci, Co., L.PA., Frank L. Gallucci, III; Paul W. Flowers Co., L.PA., and Paul W. Flowers, for relator.

          [Dave 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.

          DECISION

          BRUNNER, J.

         {¶ 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 Cribbs' request.

         {¶ 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 of mandamus.

         {¶ 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. We disagree.

         {¶ 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 Cribbs' objections.

         {¶ 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 denied.

         Objections overruled; writ of mandamus denied; motion to strike granted.

          BROWN and SADLER, JJ., concur.

         APPENDIX

         Rendered on ...


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