Old Dominion Freight Line, Inc. v. Indus. Comm.

[Cite as Old Dominion Freight Line, Inc. v. Indus. Comm., 2014-Ohio-2278.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. :
Old Dominion Freight Line, Inc.,
:
Relator,
:
v. No. 11AP-350
:
Industrial Commission of Ohio (REGULAR CALENDAR)
and Robert L. Mason, :

Respondents. :

D E C I S I O N

Rendered on May 29, 2014

Eastman & Smith Ltd., Mark A. Shaw and Melissa A. Ebel,
for relator.

Michael DeWine, Attorney General, and Eric Tarbox, for
respondent Industrial Commission of Ohio.

Connor, Evans & Hafenstein, LLP, Nicole E. Rager and
Katie W. Kimmet, for respondent Robert L. Mason.

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION

O'GRADY, J.

{¶ 1} Relator, Old Dominion Freight Line, Inc. ("Old Dominion"), has filed this
original action requesting this court issue a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to vacate its order that awarded
permanent total disability ("PTD") compensation to respondent Robert L. Mason
("claimant") and enter an order denying said compensation.
No. 11AP-350 2

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision on December 16,
2011. The magistrate recommended this court grant Old Dominion's request for a writ of
mandamus. The commission and claimant filed objections to the magistrate's decision.
We sustained the objections and remanded the matter to the magistrate to determine the
arguments that remained. State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm.,
10th Dist. No. 11AP-350, 2012-Ohio-2403, ¶ 15-16 ("Old Dominion I"). On remand, the
magistrate issued a decision on March 12, 2014, appended hereto, including findings of
fact and conclusions of law. The magistrate recommended we deny relator's request for a
writ mandamus, in essence, concluding Old Dominion did not have a clear legal right to
the requested relief and the commission did not have a corresponding clear legal duty to
provide the requested relief.
{¶ 3} None of the parties have filed objections to the March 12, 2014 findings of
fact, and, after an independent review of the record, we adopt those findings as our own
with the following exceptions. The magistrate's finding of fact in paragraph 21
erroneously refers to a "September 17, 2009 hearing" when the referenced hearing was
held on December 17, 2009. Additionally, the magistrate's finding of fact in paragraph 33
states on May 31, 2012, this court "held that [Old Dominion] was not prejudiced when the
commission submitted the supplemental evidence to its doctors after their examinations
had been performed." This finding lacks precision because it omits the fact that the
commission never submitted one piece of evidence, i.e., Dr. Richard Clary's report to Dr.
William R. Fitz. Old Dominion I at ¶ 11. However, we also found no prejudice to Old
Dominion due to this failure on the commission's part. Id. at ¶ 14. We modify the
magistrate's decision to correct these errors.
{¶ 4} Next, Old Dominion presents the following objections to the magistrate's
March 12, 2014 conclusions of law:
(1) The Magistrate erred by finding that it was
reasonable for the Industrial Commission of Ohio to
deny Old Dominion's requests to depose Drs. Fitz
and Malinky.

(2) The Magistrate erred by finding that the Staff
Hearing Officer did not abuse his discretion in noting
No. 11AP-350 3

the reports of Drs. Ward, May, and Howard when he
evaluated the creditability of the reports of Drs. Fitz
and Malinky.

{¶ 5} To be entitled to a writ of mandamus, relator must demonstrate a clear legal
right to the requested relief, a corresponding clear legal duty on the part of the respondent
to provide the requested relief, and the lack of an adequate remedy in the ordinary course
of law. State ex rel. Ervin v. Barker, 136 Ohio St.3d 160, 2013-Ohio-3171, ¶ 9.
{¶ 6} In its first objection, Old Dominion contends the magistrate erred by
finding it was reasonable for the commission to deny relator's requests to depose Drs. Fitz
and John M. Malinky, who each examined claimant at the commission's request.
{¶ 7} R.C. 4123.09 provides that the commission "may cause depositions of
witnesses * * * to be taken in the manner prescribed by law for the taking of depositions
in civil actions in the court of common pleas." In addition, former Ohio Adm.Code 4121-
3-09(A)(7)(c)1 provided that if the hearing administrator finds a request to take the oral
deposition of a commission physician who has examined an injured or disabled worker
"is a reasonable one, the hearing administrator shall issue a compliance letter that will set
forth the responsibilities of the party that makes the request." Former Ohio Adm. Code
4121-3-09(A)(7)(d) further provided that "when determining the reasonableness of the
request for deposition * * * the hearing administrator shall consider whether the alleged
defect or potential problem raised by the applicant can be adequately addressed or
resolved by the claims examiner, hearing administrator, or hearing officer through the
adjudicatory process within the commission."
{¶ 8} Old Dominion claims it made requests to take the depositions of Drs. Fitz
and Malinky to correct the commission's error in not providing those doctors with
medical evidence Old Dominion timely filed with the commission, i.e., the reports of Drs.
Clary, Oscar Sterle, and Michael A. Murphy. Old Dominion contends in denying its
requests, the staff hearing officer ("SHO") incorrectly suggested it was Old Dominion's
fault that Drs. Fitz and Malinky did not receive the reports. Thus, Old Dominion argues

1 At the time of relator's November 2009 request to take the depositions of Drs. Fitz and Malinky, the quoted

provisions of Ohio Adm.Code 4121-3-09 appeared in subsection (A)(7) instead of the current (A)(8). See
former Ohio Adm.Code 4121-3-09(A)(7), effective June 1, 2008, amended August 19, 2013.
No. 11AP-350 4

the commission erroneously relied on inaccurate information to deny the deposition
requests.
{¶ 9} The magistrate found the requests to depose Drs. Fitz and Malinky
unreasonable and properly denied because, according to the magistrate, we previously
found Old Dominion "suffered no prejudice when the commission submitted [Old
Dominion's] physicians' reports to Drs. Fitz and Malinky after the examinations were
performed and the initial reports were rendered." (Attached March 12, 2014 Magistrate's
Decision, at ¶ 42.) Old Dominion complains this reasoning is flawed because the
commission denied the deposition requests before it submitted any of the reports to Drs.
Fitz and Malinky. According to Old Dominion, "the fact that Drs. Fitz and Malinky were
ultimately provided a copy of Old Dominion's medical reports had no bearing on the
[c]ommission's decision to deny Old Dominion's request for deposition." (Relator's
Objections, at 5.)
{¶ 10} However, we agree with the main thrust of the magistrate's decision. Even if
the stated rationale for denying the deposition requests was flawed, ultimately, the
requests were unreasonable and properly denied. As the SHO suggested in denying the
request to depose Dr. Malinky, the alleged defect or potential problem raised by Old
Dominion did not require depositions for resolution. Rather, the commission could and
did resolve the situation by submitting the majority of Old Dominion's medical evidence
to Drs. Fitz and Malinky after their examinations of claimant and having them issue
addendum reports based on that evidence. As the magistrate aptly observed, this court
already determined the timing of these submissions did not prejudice Old Dominion. Old
Dominion I at ¶ 11.
{¶ 11} In his conclusions of law, the magistrate did not address the fact that the
commission failed to ever submit Dr. Clary's psychological report to Dr. Fitz. But, again,
this court previously determined the commission's failure in this respect did not prejudice
Old Dominion given the lack of evidence that Dr. Clary's report would have had any effect
on Dr. Fitz's medical examination. Old Dominion I at ¶ 11-16. We observed:
Dr. Fitz examined claimant with regard to his ability to
sustain remunerative employment based upon his allowed
physical conditions. There is no indication in the record that
Dr. Fitz would have been competent to render any opinion
No. 11AP-350 5

related to claimant's psychological conditions, and Dr. Clary's
report makes no mention of any physical findings that might
have impacted Dr. Fitz's report.

Old Dominion I at ¶ 14. Therefore, the commission's failure to submit Dr. Clary's report
to Dr. Fitz was not a defect or problem that required resolution via the deposition of Dr.
Fitz. We modify the magistrate's conclusions of law to incorporate this conclusion.
{¶ 12} Because Old Dominion's requests for depositions were unreasonable, the
magistrate correctly determined the commission's decision to deny them was reasonable.
We overrule the first objection.
{¶ 13} In its second objection, Old Dominion contends the magistrate erred by
finding the SHO did not abuse his discretion in noting the reports of Drs. Richard M.
Ward, Charles B. May, and Lee Howard when he evaluated the credibility of the reports of
Drs. Fitz and Malinky. At issue is the following language in the SHO's order awarding PTD
compensation:
[T]he Staff Hearing Officer relies upon the independent
medical examinations and evaluations performed at the
direct[ion] of the Industrial Commission: William R. Fitz,
M.D., who examined with respects to the allowed physical
injuries, and John M. Malinky, Ph.D., who examined with
respects to the allowed psychological conditions. In evaluating
the credibility of these reports, the Staff Hearing Officer
particularly notes the 01/28/2008 report of Dr. Ward, the two
reports of Dr. May of 09/25/2007 and 09/26/2007, and the
07/07/2009 report of Dr. Howard.

(Attached March 12, 2014 Magistrate's Decision, at ¶ 46.)
{¶ 14} Old Dominion contends the SHO erroneously relied on the reports of Drs.
Ward, May, and Howard because they are patently inconsistent with a finding that
claimant is medically unable to perform sustained remunerative work. In support of its
position, Old Dominion quotes this court's statement that "the Supreme Court will
not sanction the commission's mere citation of doctor's reports as justification for its
decision if those reports are in conflict." State ex rel. Zollner v. Indus. Comm., 10th Dist.
No. 88AP-37 (Oct. 19, 1989). Old Dominion argues the magistrate erred in finding it
unnecessary to address the alleged inconsistencies because the SHO only noted the
reports of Drs. Ward, May, and Howard and did not rely on them.
No. 11AP-350 6

{¶ 15} This court agrees with the magistrate's decision. The SHO did not rely on
the reports of Drs. Ward, May, and Howard to determine claimant was entitled to PTD
compensation. Instead, the SHO only used the reports to evaluate the credibility of the
reports he did rely on to make this determination, i.e., the reports of Drs. Fitz and
Malinky. Therefore, the SHO did not rely on inconsistent evidence in awarding PTD
compensation, and we overrule the second objection.
{¶ 16} After an examination of the magistrate's decision, an independent review of
the record, pursuant to Civ.R. 53, and due consideration of Old Dominion's objections, we
overrule the objections and adopt the magistrate's decision as our own, including the
findings of fact and conclusions of law as modified herein. We deny Old Dominion's
request for a writ of mandamus.
Objections overruled;
writ of mandamus denied.

SADLER, P.J., and TYACK, J., concur.
No. 11AP-350 7

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. :
Old Dominion Freight Line, Inc.,
:
Relator,
:
v. No. 11AP-350
:
Industrial Commission of Ohio (REGULAR CALENDAR)
and Robert L. Mason, :

Respondents. :

MAGISTRATE'S DECISION

Rendered on March 12, 2014

Eastman & Smith Ltd., Mark A. Shaw and Garrett M.
Cravener, for relator.

Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent Industrial Commission of Ohio.

Connor, Evans & Hafenstein, LLP, Nicole E. Rager and
Katie W. Kimmet, for respondent Robert L. Mason.

IN MANDAMUS

{¶ 17} This is the second magistrate's decision to issue in this original action in
which relator, Old Dominion Freight Line, Inc. ("Old Dominion" or "relator") requests a
writ of mandamus ordering respondent Industrial Commission of Ohio ("commission")
No. 11AP-350 8

to vacate its order awarding permanent total disability ("PTD") compensation to
respondent Robert L. Mason ("claimant") and to enter an order denying the
compensation.
{¶ 18} Following this court's decision rendered May 31, 2012, this court issued its
journal entry of June 5, 2012 that sustained the commission's and claimant's objections
to the magistrate's decision and remanded the matter to the magistrate to determine the
outstanding arguments that remain. State ex rel. Old Dominion Freight Line, Inc. v.
Indus. Comm., 10th Dist. No. 11AP-350, 2012-Ohio-2403.
{¶ 19} Unfortunately, Old Dominion filed a notice of appeal from this court's
journal entry of June 5, 2012. On October 24, 2013, the Supreme Court of Ohio sua
sponte dismissed the appeal for lack of a final appealable order. State ex rel. Old
Dominion Freight Line, Inc. v. Indus. Comm., 137 Ohio St.3d 467, 2003-Ohio-4655.
{¶ 20} This original action is now before the magistrate on this court's remand to
the magistrate for his determination of the outstanding arguments that remain.
{¶ 21} The magistrate's decision rendered in this action on December 16, 2011
sets forth 29 enumerated findings of fact which this magistrate incorporates by
reference. For the sake of convenience, those 29 enumerated findings of fact are
reproduced as follows:
1. On January 18, 2005, claimant sustained an industrial
injury while employed as a truck driver for relator, a self-
insured employer, under Ohio's workers' compensation laws.
The industrial claim (No. 05-806440) is allowed for:

Hip fracture; left trochanteric femur fracture; left femoral
neck fracture; depressive disorder; left short leg syndrome;
lumbar strain; post-traumatic stress disorder.

2. On September 25, 2007, treating physician Charles B.
May, D.O., wrote to claimant's counsel:

[I]t is my medical opinion that Mr. Mason will not be able to
return to his previous employment as a truck driver on a
permanent basis as a direct and proximate result of the
allowed physical conditions in this claim. Furthermore, it is
my medical opinion that Mr. Robert Mason is, in fact,
permanently and totally disabled from any form of
substantial gainful employment as a direct and proximate
No. 11AP-350 9

result of the allowed physical conditions in this claim. I have
completed the physical capacity form that you have enclosed
as well as the physician statement of permanent and total
disability as you have requested.

3. On another document captioned "Statement of Physician
Permanent Total Disability" dated September 26, 2007, Dr.
May indicated that relator cannot return to his former
position of employment and that he is "permanently and
totally disabled."

4. On January 28, 2008, at claimant's request, claimant was
examined by orthopedic surgeon Richard M. Ward, M.D. In
a two-page narrative report, Dr. Ward opined:

[I]t is my opinion that as a direct result of the physical
allowances from the injury that occurred on 1/18/05, he is
not capable of returning to substantial gainful employment
and should for this reason be granted permanent total
disability.

5. On April 1, 2008, at claimant's request, he was examined
by psychologist Lee Howard, Ph.D. In his 17-page narrative
report, Dr. Howard opines that claimant is "an appropriate
candidate for permanent total disability."

6. On July 7, 2009, Dr. Howard completed a form captioned
"Statement of Physician." On the form, Dr. Howard indicates
by his mark that the claimant cannot return to his former
position of employment and he is permanently and totally
disabled.

7. On July 22, 2009, claimant filed an application for PTD
compensation. In support, claimant submitted the reports of
Dr. May, the reports of Dr. Howard, and the report of Dr.
Ward.

8. On July 24, 2009, the commission mailed a "Permanent
Total Application Acknowledgment Letter" that notified the
parties of the July 22, 2009 filing of the PTD application.
The acknowledgment letter further stated:

Employers may submit additional medical evidence relating
to this issue, including reports from Employer requested
examinations. Medical evidence must be submitted by
09/22/2009. Employers must notify the Industrial
No. 11AP-350 10

Commission in writing of their intent to submit medical
evidence by 08/07/2009, if the evidence is to be considered
by the Industrial Commission specialist(s).

9. By letter dated July 28, 2009, relator timely notified the
commission of its intent to submit medical evidence.

10. On August 31, 2009, at relator's request, claimant was
examined by Oscar F. Sterle, M.D. In his ten-page narrative
report dated September 8, 2009, Dr. Sterle opined:

As related to the physical allowed conditions in the claim, the
only residual impairment under this claim is a short-leg
syndrome, which has been addressed with a lift. I find no
other physical condition that would preclude Mr. Mason
from sustaining remunerative employment.

The remaining allowed conditions in the claim have resolved
and are considered to be at maximum medical improvement.

11. At relator's request, psychiatrist Richard H. Clary, M.D.,
conducted a file review. In his two-page narrative report
dated September 3, 2009, Dr. Clary states:

Review of medical records indicate that the first physician of
record released Mr. Mason to return to work on light duty in
January of 2006. He later changed his opinion and said that
Mr. Mason could return to sedentary work in March of 2006.

Accepting the objective medical findings in the file, it is my
opinion that Mr. Mason is able to perform sedentary work
which is appropriate with his allowed physical conditions. In
my medical opinion, the allowed psychiatric conditions
would not prevent him from working a sedentary job. In my
medical opinion, the psychiatric conditions do not cause
permanent total disability.

12. On September 8, 2009, at relator's request, claimant was
examined by psychologist Michael A. Murphy, Ph.D. In his
ten-page narrative report, Dr. Murphy opines:

Opinion: The following opinion is based on a reasonable
degree of psychological certainty.

Question 1: Based solely on the allowed
psychological conditions of "Depressive Disorder"
No. 11AP-350 11

and "Post-Traumatic Stress Disorder," what
restrictions, if any, would you place on Mr. Mason's
work activities?

In my opinion, this Injured Worker's depression is mild. He
has never attempted a psychotropic.

His condition of Post-Traumatic Stress Disorder is of mild
severity as well. He denies symptoms of startle responses,
psychic numbing, and he does continue to drive. His
primary complaints with respect to post-traumatic stress are
that of nightmares and flashbacks.

This Injured Worker drives, travels, handles his finances,
uses a scooter when shopping, does laundry, cooks one meal
a day, and performs light housework.

His appetite is normal, libido is normal, and his energy level
is normal (see MCMI-III).

The Injured Worker's cognitive functions are fully intact with
no short or long-term impairment.

Recall that his functioning is also reduced by unrelated
factors (i.e., obesity, cardiac, sleep apnea, and other factors).

In my opinion, his DSM-IV psychological conditions would
not preclude his former position.

Question 2: Is Mr. Mason precluded from all
sustained remunerative employment as a result of
the residual impairment, from the allowed
psychological conditions of "Depressive Disorder"
and "Post-Traumatic Stress Disorder"?

In my opinion, the allowed DSM-IV conditions are not work-
prohibitive. His conditions are mild and do not require
medication. Many of his symptoms fall in the normal range.
His cognitive functions are intact, alert, and in the normal
limit range. This does not account for the effects of his
medications (related/unrelated).

(Emphasis sic.)

13. In keeping with the September 22, 2009 deadline for
submission of medical evidence as set forth in the
No. 11AP-350 12

commission's acknowledgment letter, on September 22,
2009, relator timely submitted to the commission the
reports of Drs. Sterle, Clary, and Murphy.

14. On September 23, 2009, the commission mailed a
"medical examination referral" letter to William R. Fitz, M.D.
The letter informed Dr. Fitz that he was scheduled to
perform an examination of the claimant on October 7, 2009.
The letter also recites "pertinent medical records are
enclosed." Apparently, with the letter, the commission sent
copies of claimant's medical records, but not relator's
medical records.

15. On October 5, 2009, the commission mailed a "medical
examination referral" letter to psychiatrist John M. Malinky,
M.D. The letter informed Dr. Malinky that he was scheduled
to examine claimant on October 21, 2009. The letter also
recites "pertinent medical records are enclosed."
Apparently, with the referral letter, the commission sent
copies of claimant's medical records, but not relator's
medical records.

16. On October 7, 2009, at the commission's request,
claimant was examined by Dr. Fitz. In his three-page
narrative report, Dr. Fitz opined that claimant has a "37%
impairment to the body as a whole."

17. On a physical strength rating form dated October 7,
2009, Dr. Fitz indicated by his mark "[t]his Injured Worker
is incapable of work."

18. On October 21, 2009, at the commission's request,
claimant was examined by Dr. Malinky. In his eight-page
narrative report, Dr. Malinky opines:

ASSESSMENT OF SEVERITY IN TERMS OF
FUNCTIONAL LIMITATIONS DUE TO MR.
MASON'S DEPRESSIVE DISORDER AND POST-
TRAUMATIC STRESS DISORDER. (According to
AMA Guides, 5th Ed.):

[One] Activities of daily living, including cleaning,
shopping, cooking, paying bills, maintaining his residence,
caring appropriately for his grooming and hygiene, using
telephone and directories. Class 3, moderate
impairment.
No. 11AP-350 13

[Two] Social functioning, his ability to get along with
others; avoid altercations, fear of strangers, avoidance of
interpersonal relationships and social isolation. Class 3,
moderate impairment.

[Three] Concentration, persistence, and pace with
respect to completing tasks in a timely manner and being
able to concentrate and attend to that to which he is doing.
Class 3, moderate impairment.

[Four] Decompensation in work or work-like
settings; capacity to adapt to stressful circumstances
including the ability to make decisions, attend to obligations,
make schedules, complete tasks, interact with supervisors
and peers. Class 3, moderate impairment.

The American Medical Association Guide to Evaluation of
Permanent Impairment 5th Edition was utilized. The best
estimate of the whole person impairment based only on the
allowed Depressive Disorder and Post-Traumatic Stress
Disorder is 30%.

[Three] Complete the enclosed occupational activity
assessment. Based solely on the impairment resulting from
the allowed mental and behavioral condition in this claim
within my specialty and with no consideration to the injured
workers age, education or work training: This injured
worker is incapable of work.

The injured worker would not be able to deal with the public.
This individual would not be able to handle the stress of a
normal workday or workweek. He would have difficulties
sustaining and persisting at tasks.

(Emphasis sic.)

19. On October 21, 2009, Dr. Malinky completed a form
captioned "Occupational Activity Assessment, Mental and
Behavioral Examination." On the form, Dr. Malinky
indicated by his mark "[t]his injured worker is incapable of
work."

20. On November 10, 2009, relator moved for leave to take
the depositions of Drs. Fitz and Malinky.
No. 11AP-350 14

21. Following a September 17, 2009 hearing, a staff hearing
officer ("SHO") issued separate orders denying relator's
motions for leave to depose the doctors. One of the orders
states:

The Employer has requested to depose to Dr. Malinky,
regarding the report written on 10/21/2009.

The Staff Hearing Officer finds that the request is
unreasonable, because the reports submitted by the
Employer from Drs. Murphy and Clary were not reasonably
available to be included in the packet of information sent to
Dr. Malinky prior to his examination of the Injured Worker.
The lack of citation to all of the Employer's medical evidence
is not a basis to grant the request to depose Dr. Malinky, and
any potential defect can be remedied by the Employer by
other means.

The other order states:
The Employer has requested to depose Dr. Fitz, regarding
the report written on 10/07/2009.

The Staff Hearing Officer finds that the request is
unreasonable because the Employer's evidence from Dr.
Sterle, Murphy and Clary was filed on either 09/22/2009 or
09/23/2009, and the examination with Dr. Fitz was
scheduled by letter mailed 09/23/2009. The lack of
inclusion of the Employer's medical reports in the evidence
cited by Dr. Fitz is not found to be sufficient reason to grant
a deposition of Dr. Fitz.

Therefore, the request is denied.

22. On February 20, 2010, the commission mailed orders
denying relator's requests for reconsideration of the SHO's
orders denying leave to depose.

23. Relator requested a prehearing conference with the
Columbus hearing administrator. Following a February 4,
2010 conference, the hearing administrator issued a
compliance letter stating:

The medical reports submitted by the Employer, Dr. Clary's,
9/3/2009 report, Dr. Murphy's 9/8/2009 report and the
report of Dr. Sterle, dated 9/8/2009 will be submitted to Dr.
Fitz and Dr. Malinky to obtain an addendum to their reports
No. 11AP-350 15

so that they can opine as to whether or not the Employer's
medical reports changes their original opinions. After these
reports are processed and in file, the claim will be forwarded
to docketing to reschedule the hearing on the issue of Injured
Worker's application to be declared permanently and totally
disabled.

24. In response to the compliance letter, the commission
mailed two letters, each dated February 4, 2010, to Dr.
Malinky. One letter states:

Thank you for your report dated 10/21/2009. The Industrial
Commission inadvertently omitted two timely filed reports
by Dr. Michael Murphy and Dr. Oscar Sterle for your review
and are asking whether or not this changes your original
opinion. If there are any changes, please describe below and
if not, state as such.

In response, Dr. Malinky wrote in his own hand:
I have reviewed the report of Dr. Murphy dated 9/8/2009
and the report of Dr. Sterle dated 8/31/2009. My opinion
remains the same as stated in my report of 10/21/2009.

25. The second letter to Dr. Malinky dated February 4, 2010
states:

Thank you for your report dated 10/21/2009. The Industrial
Commission inadvertently omitted the timely filed report by
Dr. Richard Clary for your review and are asking whether or
not this changes your original opinion. If there are any
changes, please describe below and if not, state as such.

In response, Dr. Malinky wrote in his own hand:
I have read Dr. Clary's report dated 9/3/2009. My original
opinion has not changed.

26. In response to the compliance letter, the commission
mailed one letter dated February 4, 2010 to Dr. Fitz. The
letter states:

Thank you for your report dated 10/7/2009. The Industrial
Commission inadvertently omitted two timely filed reports
by Dr. Oscar Sterle and Dr. Murphy for your review and are
asking whether or not this changes your original opinion. If
there are any changes, please describe below and if not,
please state as such.
No. 11AP-350 16

In response, Dr. Fitz wrote in his own hand:

These two reports were reviewed and do not change the
opinions expressed in my report.

27. Following a March 16, 2010 hearing, an SHO issued an
order awarding PTD compensation starting September 25,
2007. The SHO's order explains:

Permanent and total disability compensation is awarded
from 09/25/2007 for the reason that this is the date of Dr.
May's report supporting the award.

It is the finding of the Staff Hearing Officer that the Injured
Worker is permanently and totally disabled as the result of
the medical effects of his allowed physical and psychological
injuries. The Injured Worker has been prevented from
returning to any form of sustained remunerative
employment as a consequence of each of these two categories
of medical condition. Such a finding mandates an award of
permanent total disability compensation without further
consideration of the "Stephenson" factors. In reaching this
conclusion, the Staff Hearing Officer relies upon the
independent medical examinations and evaluations
performed at the direct[ion] of the Industrial Commission:
William R. Fitz, M.D., who examined with respects to the
allowed physical injuries, and John M. Malinky, Ph.D., who
examined with respects to the allowed psychological
conditions. In evaluating the credibility of these reports, the
Staff Hearing Officer particularly notes the 01/28/2008
report of Dr. Ward, the two reports of Dr. May of
09/25/2007 and 09/26/2007, and the 07/07/2009 report of
Dr. Howard. The Staff Hearing Officer further particularly
notes that the Injured Worker has a claim which is allowed
for a very serious left hip fracture, and also for psychological
conditions, notably post traumatic stress disorder, together
with some physical conditions related to the allowed hip
fracture.

The Staff Hearing Officer has considered the prior denial of a
permanent and total application in early 2007, the medical
submitted on behalf of the Employer, and the Employer's
arguments with respect to the sufficiency of the evidence
submitted in support of the application. Specifically, the
Staff Hearing Officer has considered the Employer's
No. 11AP-350 17

argument that the Injured Worker suffers from multiple
unallowed medical conditions which have been improperly
evaluated by the medical evidence in support of the
application, and has further considered the Employer's
arguments with respect to alleged inconsistency in these
reports.

It is plain that the Injured Worker does suffer from medical
conditions over and above his allowed injuries. In particular,
the Injured Worker has multi-level spondylosis in the lower
back, which may impact the Injured Worker's loss of
function in the lower back, when consideration is being
properly given to his allowed lumbar strain. In light of the
fact that the medical professionals specifically state that they
are considering only allowed conditions, there is no direct
evidence of any improper consideration of these unallowed
conditions affecting the same body part.

The Employer further argues that the reports of Drs. Howard
and May improperly consider the Injured Worker's age,
education, work experience, and similar disability factors in
reaching their conclusions. Reading the reports in context,
they are plainly stating that the Injured Worker has lost the
ability to engage in any form of sustained remunerative
employment. Further, an error in one of Dr. May's reports
which appears to state he is considering a right hip fracture,
is plainly merely a clerical error as there is no evidence the
Injured Worker ever had a right hip fracture. Finally, the
argument that the physical evidence supports the conclusion
that the Injured Worker could engage, on a physical basis, in
part-time sedentary work is not supported by the reports
cited. This is an inference drawn argumentatively, but not
stated by the reports under consideration.

In light of the fact that the independent examinations both
conclude that the Injured Worker is unable to engage in
sustained remunerative employment, solely as the result of
the allowed conditions, the weight of the evidence strongly
supports the conclusion that the physical and psychological
conditions taken together do so. Consequently, an award of
permanent total disability compensation is made.

28. On May 20, 2010, the three-member commission mailed
an order denying relator's request for reconsideration.
No. 11AP-350 18

29. On April 7, 2011, relator, Old Dominion Freight Line,
Inc., filed this mandamus action.

Findings of Fact:

{¶ 22} Here, the magistrate renders further enumerated findings of fact.
{¶ 23} 30. This original action was assigned to this magistrate who then ordered
the filing of evidence and briefs.
{¶ 24} 31. On December 16, 2011, as previously noted, the magistrate issued his
magistrate's decision which sets forth findings of fact and conclusions of law.
{¶ 25} 32. Because the commission had failed to submit the reports of relator's
doctors to Drs. Fitz and Malinky prior to the examinations performed by Drs. Fitz and
Malinky, the magistrate recommended a writ of mandamus ordering the commission to
vacate the Staff Hearing Officer's ("SHO") order of March 16, 2010 awarding PTD
compensation, and to conduct further proceedings regarding the PTD application after
elimination of the reports of Drs. Fitz and Malinky from further evidentiary
consideration. The magistrate recommended that the writ order the commission to
schedule new medical examinations and, in so doing, submit to the newly selected
commission physicians the medical evidence of the employer and the claimant as
provided by the commission's rules.
{¶ 26} 33. On May 31, 2012, as previously noted, this court issued a written
decision in this action. In its decision, this court held that relator was not prejudiced
when the commission submitted the supplemental evidence to its doctors after their
examinations had been performed.
{¶ 27} 34. As earlier noted, relator filed a notice of appeal from this court's
journal entry of June 5, 2012. On October 24, 2013, the Supreme Court of Ohio sua
sponte dismissed the appeal for lack of a final appealable order.
{¶ 28} 35. On November 13, 2013, the judgment entry of the Supreme Court of
Ohio was filed in this court.
{¶ 29} 36. This original action is now before the magistrate on this court's
remand to its magistrate for his determination of the outstanding arguments that
remain.
No. 11AP-350 19

Conclusions of Law:
{¶ 30} Two issues are presented: (1) was it reasonable for the commission to
deny relator's motions to depose Drs. Fitz and Malinky, and (2) did the SHO abuse his
discretion in noting the reports of Drs. Ward, May, and Howard when he evaluated the
credibility of the reports of Drs. Fitz and Malinky?
{¶ 31} The magistrate finds: (1) it was reasonable for the commission to deny
relator's motions to depose Drs. Fitz and Malinky, and (2) the SHO did not abuse his
discretion in noting the reports of Drs. Ward, May, and Howard when he evaluated the
credibility of the reports of Drs. Fitz and Malinky.
{¶ 32} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
Denial of Depositions
{¶ 33} R.C. 4123.09 provides that the commission "may cause depositions of
witnesses * * * to be taken."
{¶ 34} Supplementing the statute, former Ohio Adm.Code 4121-3-09(A)(6) set
forth a procedure for obtaining depositions of a commission or bureau physician.
Deposition requests were evaluated under a reasonableness standard. Former Ohio
Adm.Code 4121-3-09(A)(6)(c) and (d); State ex rel. Cox v. Greyhound Food Mgt., Inc.,
95 Ohio St.3d 353, 355, 2002-Ohio-2335.
{¶ 35} Former Ohio Adm.Code 4121-3-09(A)(6)(d) stated:
The factors to be considered by the hearing administrator
when determining the reasonableness of the request for
deposition and interrogatories include whether a substantial
disparity exists between various medical reports on the issue
that is under contest, whether one medical report was relied
upon to the exclusion of others, and whether the request is
for harassment or delay.

{¶ 36} After extensively discussing the deficiencies of the "substantial disparity"
and "exclusive reliance" criteria, the Cox court concluded that the former code's first two
criteria, in most cases, were not very useful in determining the reasonableness of a
deposition request. Cox, at 356. The court stated that, fortunately, the former code
implies that other factors may be considered as circumstances dictate. In Cox, the court
No. 11AP-350 20

relied upon two other criteria to judge the reasonableness of the deposition request: (1)
does a defect exist that can be cured by deposition; and (2) is the disability hearing an
equally reasonable option for resolution?
{¶ 37} Presumably, the Cox case prompted the commission to amend Ohio
Adm.Code 4121-3-09 effective April 1, 2004. The provision of former Ohio Adm.Code
4121-3-09(A)(6)(d), quoted above, was deleted.
{¶ 38} Currently, effective August 19, 2013, Ohio Adm.Code 4121-3-09(A)(8)(a)
provides that a request to take the oral deposition of a commission or bureau physician
"shall be submitted in writing to the hearing administrator."
{¶ 39} Ohio Adm.Code 4121-3-09(A)(8) further provides:
(c) If the hearing administrator finds that the request is a
reasonable one, the hearing administrator shall issue a
compliance letter that will set forth the responsibilities of the
party that makes the request.

***

(d) * * * [W]hen determining the reasonableness of the
request for deposition or interrogatories the hearing
administrator shall consider whether the alleged defect or
potential problem raised by the applicant can be adequately
addressed or resolved by the claims examiner, hearing
administrator, or hearing officer through the adjudicatory
process within the commission or the claims process within
the bureau of workers' compensation.

{¶ 40} As earlier noted, in denying relator's motion to depose Dr. Malinky, the
SHO explained:
The Employer has requested to depose to Dr. Malinky,
regarding the report written on 10/21/2009.

The Staff Hearing Officer finds that the request is
unreasonable, because the reports submitted by the
Employer from Drs. Murphy and Clary were not reasonably
available to be included in the packet of information sent to
Dr. Malinky prior to his examination of the Injured Worker.
The lack of citation to all of the Employer's medical evidence
is not a basis to grant the request to depose Dr. Malinky, and
any potential defect can be remedied by the Employer by
other means.
No. 11AP-350 21

{¶ 41} As earlier noted, in denying relator's motion to depose Dr. Fitz, the SHO
explained:
The Employer has requested to depose Dr. Fitz, regarding
the report written on 10/07/2009.

The Staff Hearing Officer finds that the request is
unreasonable because the Employer's evidence from Dr.
Sterle, Murphy and Clary was filed on either 09/22/2009 or
09/23/2009, and the examination with Dr. Fitz was
scheduled by letter mailed 09/23/2009. The lack of
inclusion of the Employer's medical reports in the evidence
cited by Dr. Fitz is not found to be sufficient reason to grant
a deposition of Dr. Fitz.

Therefore, the request is denied.

{¶ 42} Relator argues that the SHO's stated grounds for denial of the depositions
are unreasonable because relator filed the reports of its physicians in a timely manner
pursuant to Ohio Adm.Code 4121-3-34(C)(4)(b). But this court has already, in effect,
answered relator's argument. This court has determined that relator suffered no
prejudice when the commission submitted relator's physicians' reports to Drs. Fitz and
Malinky after the examinations were performed and the initial reports were rendered.
{¶ 43} In the magistrate's view, relator's request to depose Drs. Fitz and Malinky
must be deemed unreasonable in light of this court's May 31, 2012 decision.

Reliance Upon the Reports of Drs. Fitz and Malinky
{¶ 44} Turning to the second issue, the commission has the exclusive authority to
evaluate evidentiary weight and credibility. State ex rel. Burley v. Coil Packing, Inc., 31
Ohio St.3d 18 (1987). In explaining its decisions, the commission need not set forth the
reasons for finding one report more persuasive than another. State ex rel. Bell v. Indus.
Comm., 72 Ohio St.3d 575, 577 (1995)
{¶ 45} In State ex rel. Lovell v. Indus. Comm., 74 Ohio St.3d 250 (1996), the
court had occasion to succinctly summarize law applicable here:
State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio
St.3d 481, 6 OBR 531, 453 N.E.2d 721, directed the
No. 11AP-350 22

commission to cite in its orders the evidence on which it
relied to reach its decision. Reiterating the concept of
reliance, State ex rel. DeMint v. Indus. Comm. (1990), 49
Ohio St.3d 19, 20, 550 N.E.2d 174, 176, held:

"Mitchell mandates citation of only that evidence relied on. It
does not require enumeration of all evidence considered."
(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. Brady v.
Indus. Comm. [1989], 28 Ohio St.3d 241, 28 OBR 322, 503
N.E.2d 173) gives rise to a second presumption-that the
commission indeed considered all the evidence before it.
That presumption, however, is not irrebuttable, as Fultz
demonstrates.

Id. at 252.

{¶ 46} At issue here is the following portion of the SHO's order of March 16,
2010:
[T]he Staff Hearing Officer relies upon the independent
medical examinations and evaluations performed at the
direct[ion] of the Industrial Commission: William R. Fitz,
M.D., who examined with respects to the allowed physical
injuries, and John M. Malinky, Ph.D., who examined with
respects to the allowed psychological conditions. In
evaluating the credibility of these reports, the Staff Hearing
Officer particularly notes the 01/28/2008 report of Dr.
Ward, the two reports of Dr. May of 09/25/2007 and
09/26/2007, and the 07/07/2009 report of Dr. Howard.

{¶ 47} According to relator, the SHO's order of March 16, 2010 "improperly relied"
upon the medical reports of Drs. Ward, May, and Howard. (Relator's brief, 18.) Relator
similarly alleges that the SHO "committed a mistake of law by relying upon the reports of
Drs. May, Ward, and Howard in evaluating the credibility of Drs. Fitz and Malinky."
(Emphasis added) (Relator's brief, 18-19.)
{¶ 48} Relator's statements, as quoted above, misunderstand the concept of
reliance as that concept has developed in the law relating to mandamus actions
reviewing decisions of the commission and its hearing officers. Clearly, that portion of
No. 11AP-350 23

the SHO's order of March 16, 2010 does not place reliance upon the reports of Drs.
Ward, May, and Howard as the concept of reliance is understood in well-settled law.
Moreover, the SHO's statement that he "notes" the reports of Drs. Ward, May, and
Howard does not suggest reliance upon the reports of Drs. Ward, May, and Howard.
{¶ 49} Clearly, the SHO considered the reports of Drs. Ward, May, and Howard
in reaching his decision to rely upon the reports of Drs. Fitz and Malinky. But
consideration of those reports is not equatable to reliance upon those reports.
{¶ 50} Here, relator extensively argues that the reports of Drs. Ward, May, and
Howard are inconsistent with the commission's finding that claimant is medically
unable to perform sustained remunerative employment. Even if relator is correct in
some or all of its arguments that analyze the reports of Drs. Ward, May, and Howard,
those arguments need not be addressed here.
{¶ 51} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.

/S/ MAGISTRATE
KENNETH W. MACKE

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).