*uprelue CCourt of ebio

Transcription

1 3iu the *uprelue CCourt of ebio *Vxly 4 STATE EX REL. RUTH MCCORMICK, Relator-Appellant -vs- INDUSTRIAL COMMISSION OF OHIO, ET AL. Respondents-Appellees ) ) ) ) ) ) ) ) ) ) Supreme Court of Ohio Case No On Appeal from the Court of Appeals of Ohio, Tenth Appellate District, Case No. 11AP-92 Merit Brief of Relator-Appellant Ruth McCormick RONALD E. SLIPSKI (1444) Counsel of Record SHAV4N D. SCHARF (7233) CHARLES W. OLDFIELD (71656) GREEN HAINES SGAIv1$ATI, Co., L.P.A. City Centre One, Suite 8 1 Federal Plaza East Youngstown, Ohio / telephone 33/ faxcimile rslirsski rx green-haines.co?n sscharf(@green-haines, coni coldfield cz.,.green-haines.com MICHAEL DEWINE (9181) Attorney General of Ohio CHF,RYLNESTER ( 13264) Senior Assistant Attorney General Workers' Compensation Section 15 East Gay Street, 22"d Floor Columbus, Ohio / telephone cheal.nestor.na ohioattorneygeneral. ov Attorney for Respondent Appellee Industrial Commission of Ohio Counsel for Relator-Appellant Ruth McCormick N-11; 9 24), CLERK OF QXJURT SUPREME NUR;' OF OHIO '.S?i..si.Si C i ylet i',(>; ry 2r :Fi i s`.}e,.,;4 }}; a_ L:? { }'i..- ( I s_ ( la3d '" E,ril R J 4t; I `

2 Table of Contents Table of Authorities , lil 1. Introduction II. Statement of Facts III. Law and Argument Pro osition of Law: The Industrial Commission cannot rely upon an expert medical opinion that is factually wrong at the time the Industrial Commission relies upon it IV. Conclusion Certificate of Service <...6 Appendix Notice of Appeal A-1 Judgment Entry A-5 Decision of March 25, A-6 Magistrate's Decision of July 26, :....>...,..,... A-23 I.1

3 Table of Authorities Cases: State ex rel. McCormick v. McDonalds, 1tt' Dist. No. 11AP-92, 213-Ohio State ex re. Sellarcls v. Indus. Comm., 18 Ohio St.3d 36, 26-Ohio-158, 843 N.E.2d , 3, 4, 5 iii

4 I. Introduction This Court has held that Respondent, the Industrial Commission of Ohio ("I'ndustrial Commission") abuses its discretion when it terminates a claimant's temporary total disability award based solely on a factually inaccurate expert medical report. State ex rel. Sellarcl.s v. Indus. Comm., 18 Ohio St.3d 36, 26-Ohio-158, 843 N.E.2d 753. Here, the Ohio Bureau of Workers Compensation's ("Bureau") expert issued a report finding the claimant had reached maximum medical impz:ovement. The expert's report was based on the fact that no further treatment had been recommended. However, after the expert issued his report, but before the Industrial Commission relied upon it, the claimant's doctor recommended the claimant receive additional treatment. The Industrial Commission was aware of this change in the facts underlying the Bureau's its expert's report, but, nonetheless. it terminated the claimant's temporary total disability benefits. It did so based solely on the expert's factually inaccurate report. 11. Statement of Facts Relator, Ruth McCormick ("McCormick"), has an allowed workers' compensation claim for the following: (Stipulation of Evidence, p. 15). concussion (85.9) contusion scalp (92) sprain of neck (847.) bulging disc C4-C5 (722.2) aggravation of pre-existing degenerative disc disease C4-5, C5-6, C6-7 (722.4) bilateral stenosis C5-6, C6-7 McCormick was receiving temporary total disability benefits. On August 13, 21, the Ohio Bureau of Workers' Compensation ("Bureau") had McCormick examined by Amardeep Chauhan, D.O. to obtain an expert medical opinion about whether McCormick had reached

5 maximum medical iniprovement. (Stipulation of Evidence, p. 1). Dr. Chauhan wrote a report the same day and opined that McCormick had reached maximum medical improvement. (Stipulation of Evidence, p. 1). Dr. Chauhan reached that conclusion, in part, becatise no further treatment had been recommended. (Stipulation of Evidence, p.6.) Based only upon Dr. Chauhan's report, the Bureau referred its file to Respondent, the Industrial Commission, and asked that McCormick's benefits be terminated because she had reached maximum medical improvement. (Stipulation of Evidence, p. 9). However, within 14 days of Dr. Chtiahan's exam and report, Shawn M. Donatelli, D.O. requested and had additional treatment approved for McCormick. Dr. Donatelli recommended McCormick receive three epidural steroid injections over a period of seven to fourteen days. (Stipulation of Evidence, p. 7). Contemporaneously, McCormick's physician of record, Michael Getsy, D.C., referred to McCormick's need for the epidurals and the complications with her cervical disc stenosis, and reported that McCormick had not reached maximum medical improvement. (Stipulation of Evidence, p. 8). On Septetnber 14 and September 28, 21, Dr. Donatelli reported the results of the first two of the tlu ee approved epidural injections. (Stipulation of Evidence, pp ). On October 13, 21, two months after Dr. Chauhan rendered his opinion, and six weeks after the facts upon which he relied were rendered erroneous, the Industrial Commission held its first hearing in this matter. Even though the Industrial Commission knew Dr. Chauhan's report was now factually inaccurate, it terminated McCormick's benefits, based solely on Dr. Chauhan's factually inaccurate report. (Stipulation of Evidence, pp ). One week after the Industrial Commission issued its decision, Dr. Donatelli reported the results of the third epidural injection that had been approved. (Stipulation of Evidence, pp. 17-2

6 18). On the same day, Dr. Getsy again noted that McCormick had not reached maximum medical improvement and that she was undergoing a series of epidural blocks. (Stipulation of Evidence, p. 2). On October 19, 21, Dr. Donatelli requested cervical paravertebral facet blocks, which were approved. (Stipulation of Evidence, p. 22). McCormick continued to point out to the Industrial Commission the error in Dr> Chauhan's report, and the undisputed fact that she was still receiving treatment. The Industrial Commission ignored this evidence and again, relying solely upon Dr. Chauhan's factually inaccurate report, concluded McCormick had reached maximum medical iinprovement. (Stipulation of Evidence, pp ). Because of the obvious error in the Industrial Commission's decision, McConnick requested a third hearing, but the Industrial Commission refused her request. (Stipulation of Evidence, pp ). McCormick asked the Industrial Commission to reconsider its decision. (Stipulation of Evidence, pp ). Citing this Court's precedent in Sellards, the Industrial Commission seemingly acknowledged a problem with Dr. Chauhan's report and issued an Interlocutory Order. The Commission vacated its order dated December 11, 21 and stated: It is the finding of the Industrial Commission that the Injured Workers has presented evidence of sufficient probative value to warrant adjudication of the request for reconsideration regarding the alleged presence of a clear mistake of law of such character that remedial action would clearly follow. Specifically, it is alleged that the Staff Hearing Officer erred in terminating temporary total disability compensation based on a medical report that did not consider the contemporaneously approved medical treatment, contrary to a finding of maximum medical improvement, based upon the findings in State ex rel. Sellards v. Indus. Comm. (Stipulation of Evidence, p. 59.) The Industrial Commission stated that it would schedule a hearing: Based on these findings, the Industrial Commission directs that the Injured Worker's request for reconsideration, filed 12/21/21, is to be set for hearing to determine whether the alleged mistake of law as noted herein is sufficient for the 3

7 Industrial Commission to invoke its continuing jurisdiction. (Stipulation of Evidence, p. 59). The Industrial Commission then decided it had no jurisdiction to hold a third hearing, (Stipulation of Evidence, pp ) Law and Argument Proposition of Law: The Industrial Commission cannot rely upon an expert medical opinion that is factually wrong at the time the Industrial Commission relies upon it. The single issue presented here is an evidentiary one. The Industrial Commission relied upon a factually erroneous expert medical opinion-not once but three times-to terminate McCormick's temporary total disability benefits. The Industrial Commission did not rely upon that report to make its decision until sixty days after the report was issued. In the interim, and within two weeks of the date of the report, it was clear the report was wrong. At least one month prior to the Industrial Commission relying upon the report, medical treatment was approved. 'I'his Court, in State ex rel. Sellar ds v. Indus. Co7nrn., 18 Ohio St.3d 36, 26-C)hio- 158, 843 N.E.2d 753, explained that the Industrial Commission cannot rely upon a medical report that contains a factually wrong foundation regarding the claimant's medical treatment. This Court explained: The single issue presented is an evidentiary one. Sellards challenges Dr. Levy's opinion of maximum medical improvement as premature based on Dr. Spare's contemporaneously approved treatment plan and urges its disqualification. We agree with Sellards and accordingly reverse the judgment of the Court of Appeals. Sellards at 1). The Court of Appeals tried to distinguish the facts here from those in Sellards. It concluded the additional treatment approved in Sellards was "very contemporaneous" to the expert report; while here, the additional treatment was requested two weeks later and approved 4

8 more than one month later. State ex rel. 1'VlcCormick v. McDorzalds,1t1' Dist. No. 1 lap-92, 213-Ohio-766,T9. That distinction, if indeed it is a distinction, does not determine the propriety of the Industrial Commission's reliance on a factually wrong expert report. The exact point in time the additional medical treatment was approved is not the question. The question is whether the Industrial Commission relied upon on a report that was factually inaccurate at the time the Industrial Commission relied upon it. Here, it is undisputed that the expert report was factually wrong when the Industrial Commission relied upon it; it is also undisputed that the Industrial Commission knew the report was factually wrong. The Court of Appeals also missed the point when it attempted to determine what a "premature" expert medical opinion is. The question is whether an adjudicatory body can rely upon an expert medical report when, at the time that it relies upon the expert medical report, the adjudicatory body knows the expert medical report is based upon erroneous facts. This Court answered that question in Sellards and held that it is an abuse of discretion to do so. Sellards should apply here. IV. Conclusion The Industrial Commission abused its discretion when it (on three occasions) relied upon an expert medical opinion that was factually wrong. This Court should reverse the Court of Appeals' judgment and issue the Writ of Mandamus. 5

9 Respectfully submitted, GRl l N s SGAIvraArl Co., L.P.A H. L---- RoNALD E. SLInsKI (1444) ( Counsel of Record) SHAwN D. SCHARF (7233) CHARLES W. OLDFIELD (71656) City Centre One, Suite 8 1 Federal Plaza East Youngstown, Ohio 4453 (33) telephone (33) facsimile rslipskica een-haines.com ssharf(a green-haines.com coldfield(-c gree.n-haines.com Counsel for Relator-Appellant, Ruth McCormick Certificate of Service On October ', 213, a copy of the foregoing was served by regular U.S. Mail on Cheryl Nester, Assistant Attorney General, Workers' Compensation Section, 15 East Gay Street, 22"a Floor, Columbus, Ohio IA RONALD E. SLIPSKI (1444) Counsel for Relator-Appellant, Ruth McCormick 6

10 APPENDIX

11 OAO35 - T18 STATE OF ONIQ, ex rel. RUTfI MCCORMICK. V. Relator-Appellant NDUSTRIAL COMMISION OF OHIO a:nd MCDONALUS R.espon clent-appel.lee Resporident-Appellee 3j1l ITy (fat- Of)io Case No. Y h On Appeal from the Frarzlcliri CountY CoLirfi of Appeals, Tenth Appellate District, Court of A.ppeals Case No. l 1AP NOTICE OF APPEAL RON_LD E. SLIPSKI (I444) (Counsel of Record) SBAWN D. SCHARF (7233) CHARLES OLDFIELD (71656) Green Tiailies Sgauribati Co., L.P.A. F.O. Box 849 Younostown, Ohio 4451 (33) telephone (33) 'acsi.mile zsli 1ski@gr(ei-haiizes.eozn ssharf(a?reeiz_ h ne5 coal coidfie1d c',._reczi 1?aiz.es.corn - - 1viICHAEL DI,WI.NE ((}9181) Ohio Attorney General CHERYL NESTER (13 64) Assistant Attorney General (Counsel of Record) Workers' Compensation Sec#.ion. 15 East Gay Street, 22" Floor Columbus, (:}hio (614) tezephone (614) facsimile C1leryl.Nester).OhioAttoz_nev Caeneral.o c Cour<sel for Relator-Appellant, Ruth McCormick Counsel for Respondernt-Appellee Industrial Commission of Ohio lft: A-1

12 A35 - T19 NOTICE OF APPEAL OF APPELLANT RU TIT 1VT C C: OKNII C.K. AppelIan.t, Ruth ivlccornrzick, gives riotice of appeal to the Supreme Court of Ohio &om the judgment of the Franiciirz County Court of Appeals, Tenth Appellate District, entered in Cou:r.t of Appeals Case No. I 1A.P-9(}2 on March 5, 213. A copy of the judgment entry is attached. The case originated in the krarzklin Cotrnty of Court of Appeals: Thexefore, th:is is an allpea[ as of right. co U U cu fl(.)ivt LD E. SLIPSKI (1444) (Counsel of Record) SHA'tVN D. SCLTARF (7233) CHAIZLF,S OLDFIELI3 (71656) Green Haines Sganzzbati Co., L.P.A. P.O. Box 849 Youngstown, Ohio 4451 (33) teizplaorie (33) facsimile reeg-haine.s>con-t ssharf(a7greeax-haincs.com coldfield@, ree7a-haies.com v ac L7.. A-2

13 A()35 - T2 Certificate of Service to: I hereby certify that a copy of tise fozeboiug was served on this C day of April, 2I3, Via U.S. Mail N ) c n. co M D- m cm m v -- CHERXL NE, STER (13 64) Assistant AttorneY Gerzeral (CoLirzsei of Record) Workers' Compensation Sectioai 15 East Gay Srreet, 22r`d Floor Columbus, Ohio (614) telephone (614) facsimile Cheryl.tester Att rne neral. ov Counsel for Respondent-Appellee Industrzal Coznrna.ssion of Ohio R.fli L E. SLLPSKS ( 144C4) Counsel for Relator-Appellant, Ruth McCorn-dck U ia CDQ a2 }.. U C: U tl A-3

14 oa35 - T Y IN THE COURT C3F APPEAA,S OF CI-ilfJ TENTH APPELLATE DISTRICT State of Ohio ex rel.. Ruth?'vsc,Cormick, Relator, C.. V. McDonald's arzd Tndustri.al Commission of Ohio, No.1xLP-9aa (REGULAR CALENDAR) Respondents. rn P. ;JtiDGMEiNT EIv`I'RY For the reasons stated U-i the decis;on of this court rendei-ed (aerein on March 5, 2ui:z, the decision of the magistrate is approved ar.d adopted by this corirt, a-acl it is the jiudgmenl and order of this court that the requested writ of nzandamus is denied. Costs assessed against relatar. Within three (3) days from the filing hereof, the iler'k of this coicrt is hereby r ciered to serve upon all parties not in deiault for failure to appear notic;p of this judgment and its date of entry -tipoi-z thesourn.al.. f Judge John A. Connor {,?,tt, Judgn'Wil#iann A. KIatt, P.J. '--- ti Judge.T lia,. `l5orr ian A-4

15 IN THE COURT OF APp..;-.;S OF OHIO TE'CH rpri,late DISTRICT State of Ohio ex rel. Ruth _N'1cConnick, Relator, V- McI)ona;d's aiid Industrial Commission oi Ohio, No. 1LAI'-92 (RTGUZA-.. CALENDAR) Reswndents. -JUG?"LENT ENTRY :For the reasons stated an th e decision of this cot?i.-t rendered herein on March 5, 212; the decision of the magistrate is apprcived and adopted by this court, a-id it is the judgu-ient and order of this court that the reguested writ of n-iandamas is denivd- Costs assessed against relator. IVi.thi.n tlaree (3) days frozn the fil"zng hereof, -the elerlc of this court is herevy ordered to serve upon all parties not in defatilt for failizre to appear notice of this judgment and its date of er:<try upori thejaurnal. J.idge Joh.zz A. Connor :./.7 '` t. J, j J '.f (./ /f/,..'l/ r 5 -J Jud`g'effilliarn A I:Iatt, P.J. Jiadge Julia L.T)orrian A-5

16 oa25 - V91 IN'1.'HE COURT Oli APPF!US OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Ruth McCormick, cl, w a w o. I!t N Lf7 V. Relator, McDonald's and Industrial Conunission of hio, Respondents. No. 11AP-go2 (REGULAR CAL.ENDAR) SC Cr) r O C v.w m Q a.. U : c a U C L CONNOR, J. D E C I S I O N Rendered on March 5, 213 Ronald E. S(ipski, and Shaz.vn D. Scharf, f.or relator. Michael 17eWine, Attorney General, and Cheryl J. Nester, for respondent Industrial Commission of hio. IN T-VIANDAMUS ON OBJECTIONS TO THE MAC'rISTRr-kTF.'S DECISION ( 1} Relator, Ruth McCormick ("relator"), has filed this original action requesting that tl-us court issue a writ of nlandamus ordering respondent, Industrial Conimission of Ohio ("commission"), to vacate its order tezininating her application for teniporazy total disability ("TTD") compensation and issue a new order reinstating 'ITD compensation. A-6

17 A25 - V92 No. tzap-9o2 2 {12} The court referred this rriatter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, Nvhich is appended to this decision. ) a. cli c Cv.he v N t8 Q>. m U LL Therein, the magistrate concluded that State ex rel. Sellards v. Indus. Comm., zod Ohio St.3d 3o6, 2oo6-Ohio-.ro58, does not compel the issuance of a writ of mandamus in this case. Finding that Sellards does not stand for the proposition that a doctor's opinion as to maximum medical improvement ("MMI") is automatically rendered premature by another doctor's subsequent request and approval of a treatment plan, the magistrate recommended denial of the writ requesting the reinstatement of TTD compensation. f11 3} Relator filed objections to the magistrate's decision. The commission filed a memorandum opposing the objections. This cause is now before the court for a full review regarding relator's objections. Although relator's arguments are essentially the same arguments which were presented to and considered by the magistrate, we shall brieflv address them. { 41 Relator has not delineated specific objections. However, she generally asserts that the magistrate erred by misconstruing Sellards and by relying on a medical opinion that is based upon an incomplete factual foundation to support a finding of MMI. Relator conterids the principle established in Sellards is that a doctor's opinion regarding MMI is invalid where the doctor rendering the opinion is tuiaware of a medical treatment plan contemporaneously approved by a medical care organization and/or the btreau of workers' compensation. Specifically, relator argues the commission cannot rely upon the opinion of Arnardeep Chauhan, D.O., finding that relator has reached MMI, because Dr. Chauhan was unaware of and did not consider a contemporaneously approved medical treatment plan from Shawn M. Donatelli, D.O. 51 Relator also takes issue with the magistrate's prestunption that the commission considered Dr. Donatelli's reports arid his approved C-9 request for cervical epidural steroid injections and lv.s conclusion that, because they were considered by the commission, the fact that Dr. Chauhan did not consider those reports is of no consequence. Relator argues the commission cannot consider the contemporaneously approved medical treatment plan vvhile simultaneously relying solely upon a medical A-7

18 A25 - V93 No. riap-9o2 3 opinion which did not consider that treatment plan. Relator asserts this is particularly true where the bureau and the commission are aware of this lack of consideration. l(( 6} Thtis, pursuant to Sellarcls, relator submits the comznission cannot rely upon the opinion of Dr. Chauhan because his opinion did not consider the contemporaneously approved medical treatment plans of Dr. Donatelli. However, as generally noted by the magistrate, we find the factual circumstances here to be different from those in Sellarcls. J 71 In Sellards, a psyclliatrist submitted a treatment plan that was approved by the commission. On the same date of that approval, another psychiatrist. concluded the claimant had reached MMI. However, the second psychiatrist was unaware of the newly approved treatment plan. The Supreme Court of Ohio found the second psychiatrist's opinion to be premature based upon the commisszon's contemporaneous approval of the first psychiatrist's treatment program, and consequently, it could not serve as e`ddence to support the denial of TTD compensation. { 8} In the instant case, there is a different time frame involved. Her.e, the record demonstrates the commission was aware that approximately two weeks after Dr. Chauhan's examination of relator, Dr. Donatelli completed a C-9 request for authorization of three cervical epidural steroid injections, as Dr. Chai.dian's report was dated two weeks prior to Dr. Donatelli's completion of a C-9 request for authorization of the steroid injections. More than two weeks after that, the C-9 request was approved by the managed care organization (rather than by the commission, as in.sellards). The record further reflects the first steroid injection was given within a couple of days of approval, followed by a second injection. Approximately three weeks after approval of the C-9 request, a hearing was hel(i before the district hearing officer, meazung relator received two cervical epidural injections prior to the hearing. {19} While the approval of the treatment plan and the exainination by the second psychiatrist in Sellards was very contemporaneous, the same cannot be said here. As stated by the magistrate, approval from the managed care organization occtirred more than one month after Dr. Chaullan's examination of relator. Furthermore, -we agree with the niagistrate's conclusion that Sellards does not stand for the proposition that a doctor's opinion lnith regard to MMI is automatically classified as "premature" simply as a result A-8

19 QA25 - V94 No. 11AJP-9o2 4 of a subsequent request for and approval of a treatment plan. We find no error in the magistrate's interpretation of Sellarcls. {; 1} Based upon this analysis, we find no violatzon of SelLards and we overrule relator's objections. {1( 11} In conclusion, after an independent review, pursuant to Civ.R. 53, we find the magistrate has properly deterinined the pertinent facts and applied the appropriate law. Therefore, relator's objections to the magistrate's decision are overruled and we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained tlzerexn. In accordance with the magistrate's decision, we deny the requested writ of mandamus. Objections overrcelecl; writ of mancianaus denied. KIATT, P.J., and I)ORRMN, J., concur. A-9

20 oa25 - V95 No. 71AP A P P E N D IX IN THF. COtTRT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Ruth McCormick, Relator, V. McDonald's and Industrial Commission of Ohio, No. il4p-goz (REGL'LAR CALENDAR) Respondents. MAGISTRATE'S DECISION Rendered on July 26, 212 Ronalci.Ee SlipsKi and Shawn D. Schar-f, for relator. Alicltael DeI!trr`ne, Attorney General, and Eric T'arbox, for respondent Industrial Cornmission of Ohio. IN MA.NDA'IUS {j 12} In this original action, relator, Ruth McCormick, requests a writ of mandainus ordering respondent Industrial Commissiorl of Ohio ("commission") to vacate that portion of its November 15, 21 order that tenninates temporary total disability (`ftp") compensation, and to enter an order reinstating the compensation. A-1

21 A25 - V96 No. iiap-92 6 Findings of Fact: {q( 13} 1. On December 6, 22, relator sustained an industrial injury when she slipped on a wet surface while employed at a McDonald's restaurant. The employer is a state-fund employer. { 14} 2. The industrial claim (No o8) is allowed for: Concussion; contusion scalp; sprain of neck; C4-C5 bulging disc; aggravation of pre-existing degenerative disc disease C4-5, c5-6, C6-7; bilateral stenosis C5-6, C6-7. f 15} 3. Relator began receiving TI'D compensation from the Ohio Bureau of Workers' Compensation ("bureau"). { 16} 4. On August 13, 21, at the bureau's request, relator was examined by Amardeep Chauhan, D.O. In his four-page narrative report, Dr. Chauhan states: Medical History: Ms. McCormick is a 45-year-old left-hand dominant female who sustained injuries to her cervical spine while working at McDonalds. On 12/o6/22, she slipped on a wet surface and hit the back of her head injuring her neck, head, and shoulder. She was initially seen at St. Elizabeth's I-Iospital where x-rays were performed and demonstrated degenerative changes in the cervical spine. She had no loss of consciousness. CT scan of the brain on 12/7/22 was normal vvithout any evidence of bleed. Initially she was treated by her family physician, Dr. Kolopas; then started treatment with Dr. Getsy, chiropractor. Treatment initially was conservative with therapy and chiropractic adjustments. She returned to Dr. Getsy's care who continued to manage her for most of 2ov6. There was a lapse in any treatment up until 12/15/2$. She had been seen by Dr. Getsy on o9/o6/2oo6, and therefore more than two years had passed. She related some issues with substance abuse and that was the primary reason why she was not seeking any treatment. She then returned to Dr. Getsy's care and he continued to provide physical therapy in his office including modalities, electric stim, and myofascial treatment. She continues to see I)r. Getsy on a fairlyregular basis for chiropractic care. A-11

22 OA25 - V97 No. 1ZAP-92 7 She was seen on 7/5/2o1o by Dr. Shawn Donatelli for constxltation. On examination, [she] was found to have intact motor and sensorv f.lznction. An EMG/nerve conduction study was repeated on 4/12/21, which was reviewed by Dr. Donatelli and was read as normal. The remainder of the studies including x-rays and MRIs were reviewed as well and a repeat MRI was recommended by Dr. Donatelli and this was performed only two weeks ago. The results are not available at the time of this dictation. Treatment going forward has been recommended to be conservative with ongoing chiropractic care being recommended by Dr. Getsy. Specific questions to be addressed: [One] In your medical opinion, has the injured worker reached a treatment plateau that is static or well stabilized, at which no fundamental, functional, or physiological change can be expected within reasonable medical probability in spite of contin.iung medical or rehabilitation procedures (maximum medical improvement)? Please explain. Yes, she has reached a treatment plateau. She has had an abu.ndant amount of conservative treatment and chiropractic treatmen.t. She has had some interventional treatment provided by two different pain specialists as well, most recently Dr. Donatelli. Trigger point injectiozz therapies have been performed as have parave.rtebral facet injections. [Two] Can the injured worker return to his/her former positaon of employment? If yes, are there any restrictions or modifications? Yes, she is able to return to her fornier position of employnient withotit restriction or modification. She takes care of three c>f her grandchildren including an 8-month-old, 3-year-old, and a 6-year-old. She does this twice a week. She has no strength deficit. Her range of motion is functional. She does not appear to have the pain that she describes as io/io. Therefore, she should be able to work at her previous position of employment. * -K- * [Four] Has the injuiy/dasease reached maximum medical improvement? If not, are there any A-12

23 OA25 - V98 No. 211\-P-92 8 reconnnendations for vocational rehabil.itation and when should a re-examination be considered? Yes, she has reached niaximtun medical improvement. She is not a candidate for vocational rehabilitation and has no transferrable skills. Her motivation to return to work is also highly questionable. [kivel Is the current treatment necessary and appropriate for the medical condition(s)? No, ongoing chiropractic treatment is not considered appropriate. Referencing Official Disability Guidelines 29, chiropractic care should be weaned over a period of time. Ms. McCormick's injury -vvas in 22. Over the year, she has had an abundance of chiropractic treatments, and chiropractic treatment is no longer necessary or appropriate. [Six] What are the recommendations for any proposed plan of treatment including the expected length of treatznent and results? No further treatment is recommended. She should continue with a home-based program to maintain her range of motion. (g 17; 9. On August 31, 21, citing the report of Dr. Chauhan, the bureau moved for terniination of '17D compensation on grounds that the industrial injury has reached maxinluzn medical irr.iprovernent (' MiNII"). {l 18; 6. Earlier, on August 27, 21, treating physician Shawn M. Donatelli, D.O., completed a C-9 request for authorization of three cervical epidural steroid injections. On September 12, 21, the managed care organization ("MCO") approved the C-9 request. ij 191 On August 3, 21, treating chiropractor Michael Getsy, D.C., completed a bureau form on which he certified that relator was not at MMI. On the form, Dr. Getsy indicated the existence of a "care plan for epidurals." 1 2} 8. On Septeinber 14, 2ol.o, relator underwent her first cervical epidural injection, as reported by Dr. I)onatelli in his "procedure report" of that date. On Septernber 28, 2nxo, Dr. I)onatelli performed the second cenical epidural irijection. In his "procedure report" of that date, Dr. Donatelli states: A-13

24 OA25 - V99 No. rlap-9o2 9 She had significarit irnprovement in her symptoms for about a week following the first injection followed by significant recurrence. She does remain mildly improved overall at this time. { 21} 9. Following an October 8, 21o hearing, a district hearing officer (' DI-iO") mailed an order on October 18, 21 that grants the bureau's August 31, 21 motion for termination of TTD compensation. The DI-IO's order of October 8, 2oi.o explains: According to the 8/13/21o report from Dr. Chauhan, the conditions recognized in this claim have achieved a level of niaximum medical improvement. However, according to the 9/24/21 C-84 report completed by the treating chiropractor, M. Getsy, DC, these conditions continue to prevent Ms. McCormick from engagirig in any employment whatsoever. '1'hus, the file contains conflicting medical evidence with regard to the issues of continued temporary total disability and maximum medical improvement. Based upon the previously noted report from Dr. Chauhan, the conditions recognized in this claim are hereby deemed to have achieved a level of maximum medical improvement. Accordingly, payznents of Temporary Total Disability Compensation benefits shall be terminated effective 1o/M/2x, the date of this hearing. 11ze Temporary Total Disability Compensation benefits paid for the period subsequc.nt to lo/o8/21 constitute an overpayment s-ubject to recoupment in accordance with the prwisions of Ohio Revised Code (K). {1221 io. Relator administratively appealed the DHO's order of October 8, 21. {( 231 zl.. On October 19, 2oro, relator underwent her third cervical epidural injection performed by Dr. Donatelli. In his "procedure report" of that date, Dr. Donatelli states: She reports mild improvement overall fallow-ing the second injection. {( 24} 12. On October 19, 2o1o, Dr. Getsy completed a C-84 on which he certified a period of TTD. On the C-84, Dr. Getsy indicated by his mark that relator is not at MMI. f25} 13. On October 27, 21, relator was examined by Dr. Donatelli who -varz ote: A-14

25 oa25 - w1 No. inap-9o2 1 I also suggested that she may benefit further from a series of left cervical facet blocks. We discussed that procedure in detail, including its risks, benefits and alternatives. She has requested that we file a C-9 seeking authorization for this treatment. { On October 29, 2oio, Dr. Donatelli completed a C-9 on which he requested authorization for "cervical paravertebral facet blocks.". Two of the requested facets blocks were approved. { 27} 15. Following anove.mber 15, 2o1o hearing, a staff hearing officer ("SHO") mailed an order on November 17, 2oro af.tirming the DHO's order of October 8, 21. The SHO's order of November 15, 2o1o explains: It is the finding of the Staff Hearing Officer, based upon the narrative report from the State examining physician, Dr. Amardeep Chauhan, D.O., dated 8/13J21, that the Injured Worker's condition has reached maximuin medical improvement pursuant to a niedical examination he performed on the Injured Worker. The Staff Hearing Officer further finds that, as a result of said finding of maxiniuin medical irnprovement, the Injured Worker's temporary total compensation shall be and is hereby terminated as of 1/13/21, the date of said prior District Hearing Officer hearing. Furthennore, based upon the finding of maximum medical improvement, as well as, the termination of the Injured Worker's teznporary total compensation as indicated above, the Staff Hearing Officer also finds that any teznporaiy total compensation paid subsequent to 1 /13/21, the date of said terzninatiori, is an overpayment and shall be recouped pursuant to R.L i.i(K). The remaining portion of said order is based upon the narrative report dated 8/13/21 from the State examining physician, Amardeep Chauhan, D.O., indicating that the Injured Worker's condition has reached maximum medical improvement, thus justifying the termination of temporary total compensation as of the date of said prior District Hearing Officer hearing. {li 281 zfi. On December 11, 21o, another SHO mailed an order refusing relator's administrative appeal from. the SI-IQ's order of November 15, 21. A-15

26 oa25 - W2 No. x7.ay-9o2 11 {T 29} 17. On December 21, 2o1o, relator moved for reconsideration of the SHO's order of Novenlber 15, 21 { On April 16, 211, the three-member commission, on a two-to-one vote, mailed an interlocutory order stating: It is the finding of the Industrial Commission that the Injured Worker has presented evidence of sufficient probative value to warrant adjudication of the request for reconsideration regarding the alleged presence of a clear mistake of law of such character that remedial action would clearly follow. Specifically, it is alleged that the Staff Hearing Officer erred in terminating temporary total disability compensation based on a medical report that did not consider the contemporaneously approved medical treatment, contrary to a finding of maximum medical improveinent, based upon the findings in State ex r.el. Sellards v. Indus. Comm. (2oo6), io8 Ohio St.3d 3o6. TX Based on these findings, the Industrial Commission directs that the Injured Worker's request for reconsideration, filed 12/21/21, is to be set for hearing to determine whether the alleged mistake of law as noted herein is sufficient for the Industr:ia3. Commission to invoke its continuing jurisdiction. {T 31} 19. On May 5, 21t, the commission heard relator's request for reconsideration. fgf 32) 2. On May 2, 211, the conimisszon, on a three-to-zero vote, mailed an order denying reconsideration. The May 2, 211 order explains: p. 64 After further review and discussion, it is the finding of the Industrial Commission that it does not have authority to exercise continuing jurisdiction pursuant to R.C and State cx: rel. Nicholls v. Indus. Comm. (1998), 81 Ohio St.3d 454, State ex rel. Foster v. Indus. Comm. (1999), 85 Ohio St.3d 32o, and State ex rel. Gobich v. Indus. Comm., 13 Ohio St.3d 585, 24-Ohio-599o. The Injured Worker has failed to meet her burden of proving that sufficient grounds exist to justify the exercise of continuing jurisdiction. Therefore, the Injured Worker's request for reconsideration, filed 12/21/21, is denied, the refusal A-16

27 OAa25 - W3 No. 111P order, issued 12/11/21, is reinstated, and the Staff Ilearing Off.icer order, issued 11/17/21, remains in full force and effect. { 33} 21. On October 2, 2oYr, relator, Ruth McCormick, filed this mandamus action. Conclusions of Law: { 34} The issue is whether the decision of the Supreme Court of Ohio in State ex rel. Sellards v. Inclus. Comrn., 7o8 Ohio St.3d 36, 2oo6-Ohio-io58, compels this cotut to issue a writ of mandamus. {1 35} The magistrate finds that Sellards does not compel a writ of mandamus, as more fully explained below. { 361 William E. Sellards, Jr., injured his back in In January 2oo1, he was deemed to have reached MMI. { 37} In November 21, Sellards began seeing psychiatrist, Dr. J.T. Spare for depression. Dr. Spare prescribed an unspecified anti-depressant and initiated "supportive psychotherapy." Icl.at 2. { 381 In July 22, the cominission additionally allowed Sellards' claim for "major depressive disorder, single episode." rd. at 1( 3. Dr. Spare submitted a C-9 treatment plan application that sought approval for psychotherapy and "medication management." Icl. The C-9 was approved on October 22, 22, 39} Coincidentally, also on October 22, 22, Sellards was examined by another psychiatrist, Dr. Allen B. I.evy. After thoroughly reviewing the medical records (which did not include Dr. Spare's treatment plan), Dr. Levy concluded that Sellards' psychiatric condition had reached TMMI, { aq, On November 26, 2oo2, Dr. Spare wrote that Sellards had been taking his prescriptions to the pharmacy where he was informed that they cannot be filled because the bureau will not make payment. Dr. Spare further wrote: Id. at 1I 7. I think with optimizing medication and continued psychotherapy, he can make additional progress. A-17

28 OA25 - W4 No. 11AP I 411 On December 23, 22, Sellards' counsel phoned the bureau regarding prescriptiori payment. The bureau responded with a letter the next day indicating that an error had occurred and, as of that date, had been corrected. { 421 Earlier, on December 18, 22, a I7I1 fot-ind that Sellards had reached MMI based upon Dr. Levy's report. Sellards administratively appealed and obtained another letter from Dr. Spare dated January 7, 23. The letter stated: Id. at 1[ "Mr. Sellards continues to be symptomatic. ' " * Tlae intensity of these experiences seem [sic] to fluctuate, to some extent, and clearly there has been some improvement over baseline. However, the syrnptoms remain severe to moderately severe * '-. As I had previously noted, the patient persistently reports that attempts to get his prescriptions filled at the pharmacy are frustrated by the pharmacist who claims that these psychiatric items are not compensated. Mr. Sellards' antidepressant treatment has been, to some extent, limited as we have been providing him with office samples to keep him in treatment. "I know there has been some attempt to address this issu.e since his last visit. However, so far as I am aware, the situation has not changed. "In any case, Mr. Sellards likely would have some opporttu-kity to benefit from alternative medication or augmentation with a mood stabilizer; however, these approaches would require closer monitoring, blood testing and the availability of medication on a continuous basis. Given the uncertainty of the situation, I have been a bit reluctant to proceed -"Tith that because there are some risks involved, particularly if the medication cannot be continuously monitored appropriately." On February 6, 23, a SHO affirmed the IyHO's order explaining: "Although Dr. Levy does indicate that counseling and medication management should continue, he indicates it is unlikely that the claimant will experience any further improvement in his psychological condition despite that treatment. I'Ixe Staff Hearing Officer further finds that although the psychological condition was not formally recognized in this claim as an allowed condition until July of 22, the claimant has been receiving regular treatment Arith A-1$

29 A25 - W5 No. r1ap-yo2 14 Id. at 1I 14. Spare: Id. at 1( t.g. Dr. Spare since at least November of 21. Al.though the claimant just recently reported a problem to the BWC in getting his prescriptions filled, it is noted that Dr. Spare has been providing the claimant with free medication samples to treat the allowed psychological condition." { 431 The SHO's order of February 6, 23 prompted a third letter from Dr. "[H]is treatment was, to some extent, limited by inability to provide intensive treatment and limits on the medications which were available. As I previously commented, we did provide him with office samples of several antidepressants but they were incompletely [sic] effective [sic]. In such cases, augmentation strategies which involved the prescription of mood stabilizers or small doses of major tranquilizers or more typical antidepressants are often prescribed. Some of these strategies require medication which is not available as samples as well as blood monitoring which is also expensive. As a consequence, our atterzipts at treatment were limited and Mr. Sellards has not had all of the available aggressive treatments for his depression." {144{ Sellards' administrative appeal from the SHO's order of February 6, 23 was refused and reconsideration,vas denied. {11 45sSellards then filed a mandamus action in this court. This court denied the ti,vtit. Onhis appeal as of right, the Supreme Court of Ohio reversed the judgment of this court. The Sellards court offers this brief, two-paragraph explanation: The single issue presented is an evidentiary one. Sellards challenges Dr. Levy's opinion of maximum znedic.al improvement as premature based on Dr. Spare's contemporaneously approved treatment plan and urges its disqualification. We agree with Sellards and accordingly reverse the judgment of the court of appeals. Prior to his examination by Dr. Levy, Sellards struggled to get the treatment recommended by his treating physician, Dr. Spare, who believed that Sellards would benefit from medication and psychotherapy. The commission, in appro,ing that treatment, obviously wanted to give Sellards A-19

30 A W6 No. xiap-goz 15 Icl. at the opportuiiity for further treatment. We believe that Sellards merits that opportunity before maxinium medical improvement is assessed. Dr. Levy's opinion was premature based on the commission's contemporaneous approval of Dr. Spare's treatment program. Dr. Levys opinion could not, therefor :, serve as evidence supporting denial of temporary total disability compensation. { 46} Analysis begins with the observation that there were two factors that persuaded the Sellards court to declare premature Dr. Levy's MMI opinion: (i) a bureau error regarding prescription payznent appeared to have caused a delay in Sellards' psychiatric treatment, and (2) Dr. Levy was unaware of the contemporaneous approval of Dr. Spare's treatment plan. ( 471 Here, we clearly do not have anything reseinbling the first factor. That is, there is no alleged error on the part of the bureau or any other entity involved in relator's claim that delayed relator's treatment. 48} With respect to the second factor, relator points out that Dr. Chauhan (who issued his report August 13, 21) was clearly unaware that two-weeks later, on August 27, 2oio, Dr. Donatelli would request authorization of three cervical epidural steroid injections and that request would be approved by the MCO. Y 49} Also, relator seenzs to cast blame upon the bureau for failing to disclose in its August 31, 21 motion that Dr. Donatelli had recently submitted the C-9. { 51 Relator also seems to fault the commission's hearing officers for failing to specifically mention in their orders the approval of Dr. Donatelli's C-9 and his reports on relator's response to the injection.s given. (Relator's brief, at 3.) Parenthetically, it can be noted that the third injection was given October 19, 2 oio, which is several weeks prior to the SHO's hearing of November 15, 2 olo. t( 511 Actually, the Df3O's order of October 8, 21, which was administratively affirmed, does state "[t]he file contains conflicting medical evidence with regard to the issues of continued temporary total disability and maximum medical improvement." Prestunably, the conflicting medical evidence included Dr. I)onatelli's reports and the C-9 approval. A-2

31 OA25 - W7 No. xzap-go2 16 N CL C. 7t N t! 3 U U U a states: Id. at 252. {1 521 In State ex rel. Lovell v. Indus. Comm., 74 Ohio St.3d 25 (1996), the court State ex ret. s'vlitchell v. Robbins &-Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E. 2d 721, directed the commission to cite in its orders the evidence on which it relied to reacli its decision. Reiterating the concept of reliance, State ex rel. DeMint v..indus.comrrz. (199), 49 Ohia St.3d 19, 2, 55o N.E.2d 174,176, held: "Mitchell mandates citation of only that evidence relied on. It does not require enumeration of all ejridence consfdered." (Emphasis original.) Therefore, because the commission does not have to list the evidence considered, the presumption of regularity that attaches to commission proceedings (State ex rel. Bra.dy v. 1ndus. Comm. [1989], 28 Ohio St.3d 241, 28 OBR 322, 53 N.E.2d 173) gives rise to a second presumption-that the commission indeed considered all the evidence before it. M 531 Accordingly, the prestun.ption is that the commission, through its hearing officers, did consider Dr. Donatelli's reports and his approved C-9 request for the injections. Here, the commission, through its hearing officers, relied exclusively upon the report of Dr. Chatzhan. The commission was not required to address the evidence that it did not rely upon. Lovell. { 54} In the magistrate's view, the second factor that persuaded the Sellards court is not preserlt here either. {1(55} In Sellards, Dr. Levy was unaware of the contemporaneous approval of Dr. Spare's treatment plan. By way of contrast, in the instant case, Dr. Donatelli completed his C-9 request on August 27, 21, some two-weeks after Dr. Chauhan's fkugust 13, 21 exan-unation. Moreover, approval from the MCO came on September 12, 21o, almost one month after Dr. Chauhan's examination. 1 56} In the magistrate's view, Sellards does not stand for the unspoken proposition, as relator seems to suggest, that a doctor's opinion on MMI is automatically rendered premature by a subsequent request and approval of a treatment plan. A-21

32 oa25 - W8 No. 1 'ip-g o2 17 { 57} Accordingly, for all the above reasons, it is the magistrate's decision that this court deny relator's request for a writ of mandamus. fs/ Kem eavw. Ma.ck KENNETH W. MACKE N1AGISTIZATE NOTICE TO THE PARTIES Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ. R. 53(D)(3)(b). A-22

33 IN TI IE COURT OF APPEALS OF OHIO TENTH APPELI..ATE DISTRICT State of Ohio ex rel. Ruth McCormick, Relator, v. McDona.ld`s and Industrial Commission of Ohio, No.17AP-qo2 (REGULAR CALENDAR) Respondents. MAGISTRATE'S DECISION Rendered on July 26, 212 Ronald E. Slipski and 5'hawn D. Scharf, for relator. Michael DeWine, Attorney General, and Eric Tarbox, for respondent Industrial Commission of Ohio. IN MANDAivIUS In this original detion, relator, Ruth McCormick, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate that portion of its November 15, 2oY:o order that terminates temporary total disability ("TTD") compensation, and to enter an order reinstating the compensation. Findings of Fact: Y. On December 6, 22, relator sustained an industrial injury when she slipped on a wet surface while employed at a McDonald's restaurant. The employer is a state-fixnd employer. A-23

34 No. 121AP The industrial claim (No ) is allowed for: Concussion; contusion scalp; sprain of neck; C4-C5 bulging disc; aggravation of pre-existing degenerative disc disease C4-5, C5-6, C6-7; bilateral stenosis C5-6, C Relator began receiving TTD compensation from the Ohio Bureau of Workers' Compensation ("bureau"). 4. On August 13, 2oro, at the bureau's request, relator was examined by Amardeep Chauhan, D.O. In his four-page narrative report, Dr. Chauhan states: Medical History: Ms. McCormick is a 45-year-old left-hand dominant female who sustained injuries to her cervical spine while working at McDonalds. On 12/o6/22, she slipped on a wet surface and hit the back of her head injuring her neck, head, and shoulder. She was initially seen at St. Elizabeth's Hospital where x-rays were performed and demonstrated degenerative changes in the cervical spine. She had no loss of consciousness. CT scan of the brain on 12/7/22 was normal without any evidence of bleed. Initially she was treated by her family physician, I)r. Kolopas; then started treatment with Dr. Getsy, chiropractor. Treatment initially was consezvative with therapy and chiropractic adjustments. She returned to Dr. Getsy's care who continued to manage her for most of 2oa6. There was a lapse in any treatment up until 12/15/2oo8. She had been seen by Dr. Getsy on o9/o6/2oo6, and therefore more than two years had passed. She related some issues with substance abuse and t'r.iat was the primary reason why she was not seeking any treatment. She then returned to I7r.. Getsy's care and he continued to provide physical therapy in his office including modalities, electric stim, and myofascial treatment. She continues to see Dr. Getsy on a fairly regular basis for chiropractic care. She was seen on 7/5/2io by Dr. Shawn Donatelli for consultation. On examination, [she] was found to have intact motor and sensory function. An EMG/nerve conduction study was repeated on 4 f i2/2o1, which was reviewed by Dr. I)onatelli and was read as normal. The remainder of the studies including x-ravs and MRIs were reviewed as well and a repeat MRI was recommended by Dr. Donatelli and this A-24