[Cite as State ex rel. Robertson v. Indus. Comm., 2014-Ohio-2141.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. LaShawn Robertson, :
Relator, :
v. : No. 13AP-77
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Whirlpool, Inc.,
:
Respondents.
:
D E C I S I O N
Rendered on May 20, 2014
Larrimer and Larrimer, and Thomas L. Reitz, for relator.
Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent Industrial Commission of Ohio.
Bugbee & Conkle, LLP, Mark S. Barnes, Andrew J.
Wilhelms, and Janelle M. Matuszak, for respondent
Whirlpool, Inc.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
T. BRYANT, J.
{¶1} Relator, LaShawn Robertson, commenced this original action requesting
that this court issue a writ of mandamus ordering respondent Industrial Commission of
Ohio ("commission") to vacate its order exercising continuing jurisdiction under R.C.
4123.52 and to issue an order reinstating its staff hearing officer's ("SHO") order
No. 13AP-77 2
regarding respondent Whirlpool, Inc.'s ("Whirlpool") liability to pay temporary total
disability ("TTD") compensation.
I. BACKGROUND
{¶2} Relator had an allowed claim for left shoulder bursitis and disallowed
claims for a left shoulder labral tear and a left shoulder sprain or strain. Relator had
surgery on her left shoulder. The post-operative diagnoses in the operative report listed
three conditions, none of which was the allowed claim but one listed was shoulder
impingement. Two procedures were listed as the operation performed, but neither
addressed the allowed condition. However, under the description of the operation, the
report stated that a complete bursectomy and acromioplasty were performed,
addressing the allowed condition. The SHO found that relator was entitled to TTD
compensation due to impairment resulting from the allowed condition of left shoulder
bursitis since the post-operative diagnosis of left shoulder impingement is another name
for bursitis, and the actual description of the surgery included a complete bursectomy
and acromioplasty. The commission exercised continuing jurisdiction based on a
mistake of fact and law that shoulder impingement is another name for bursitis without
any medical evidence to support the finding. The commission concluded that relator
was only entitled to TTD compensation from January 14 through August 14, 2011 and to
continue through November 13, 2011 with submission of appropriate supporting
medical evidence. However, the commission found relator was not entitled to TTD
compensation after November 14, 2011, based upon a report of an examination by a
second doctor on November 1, 2011, who opined that the allowed condition had resolved
"long ago." The request for a writ of mandamus followed.
{¶3} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The parties filed a stipulated record
and merit briefs. The magistrate issued a decision, including findings of fact and
conclusions of law, which are appended hereto. In the decision, the magistrate
recommended that this court grant relator's request and issue a writ of mandamus
ordering the commission to vacate its January 5, 2012 order that exercised continuing
No. 13AP-77 3
jurisdiction over the August 9, 2011 SHO's order and to enter an order that reinstates
the SHO's August 9, 2011 order.
{¶4} The magistrate concluded the commission improperly exercised its
continuing jurisdiction based on a mistake of fact which was a "finding [that] was not
key to the SHO's determination that the June 27, 2011 surgery was, at least in part,
necessitated by the allowed bursitis condition." The SHO determined that bursitis, an
allowed condition, is the equivalent of shoulder impingement, a non-allowed condition.
{¶5} The magistrate determined that the SHO's determination that bursitis, an
allowed condition, is the equivalent of shoulder impingement, a non-allowed condition,
was "largely irrelevant" because the surgery report contained a description of the
operation stating that a complete bursectomy and acromioplasty were performed. Thus,
the doctor performed the surgery, at least in part, due to an allowed condition.
II. OBJECTIONS
{¶6} Both the commission and Whirlpool filed objections to the magistrate's
decision. By Whirlpool's objection, it argues that "[t]he magistrate failed to find [sic]
the Commission abused its discretion, and therefore erred in granting a writ of
mandamus and vacating the Commission's January 5, 2012 order. Moreover, the
magistrate usurped the Commission's adjudicative role, rendering a decision
unsupported by case law authority and based on an incorrect application of Ohio law."
The commission's objection is that "[t]he Magistrate erred in usurping the role of the
commission and acting as the trier of fact." Both objections raise essentially the same
issue that the magistrate erred in finding that the commission abused its discretion.
III. DISCUSSION
{¶7} The commission exercised its continuing jurisdiction based upon a
mistake of fact and law. "The commission's power to reconsider a previous decision
derives from its general grant of continuing jurisdiction under R.C. 4123.52." State ex
rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, ¶ 14, citing State ex
rel. Royal v. Indus. Comm., 95 Ohio St.3d 97, 99 (2002). However, this power is not
unlimited and continuing jurisdiction can only be invoked when one of the following
requirements has been met: (1) new and changed circumstances, (2) fraud, (3) clear
No. 13AP-77 4
mistake of fact, (4) clear mistake of law, and (5) error by an inferior tribunal. Id., citing
State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998).
{¶8} Here, the commission exercised its continuing jurisdiction finding a
mistake of law and fact based on the SHO's determination that shoulder impingement is
another name for bursitis without any medical evidence to support it. The magistrate
found that the commission improperly exercised its continuing jurisdiction because this
determination was irrelevant given that the surgery report contained a description of the
operation stating that a complete bursectomy and acromioplasty were performed. Thus,
the surgery was performed, at least in part, due to an allowed condition.
{¶9} The commission's medical findings and disability determinations must be
based on medical opinions. State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 81
Ohio St.3d 56, 58 (1998). The commission abuses its discretion when it grants an award
without medical evidence to support the disability. Id. The magistrate here recognized
that the SHO's order does not cite to medical evidence to support the finding that
bursitis and shoulder impingement are synonymous. Moreover, in its request for
reconsideration, Whirlpool cited to a report from Dr. Hogya who stated that shoulder
impingement is a non-allowed condition, and the bursitis is not associated with total
disability over seven months after the injury. Thus, the commission did not improperly
exercise its continuing jurisdiction.
{¶10} Once the commission has properly invoked continuing jurisdiction, the
commission is vested with the authority to address any issues. State ex rel. Sheppard v.
Indus. Comm., 10th Dist. No. 11AP-553, 2012-Ohio-4301. In Sheppard, this court
reaffirmed that "once the commission's continuing jurisdiction is invoked in an order
articulated with specific reasons therefore, the commission is vested with the authority
to address any issues pertaining to the order in question." Id. at ¶ 7, citing State ex rel.
Hayes v. Indus. Comm., 10th Dist. No. 01AP-1087, 2002-Ohio-3675. The commission
relied upon a report from Dr. Hogya, a second doctor that examined relator on
November 1, 2011, several months after the surgery, who opined that the allowed
condition had resolved "long ago." On that basis, the commission denied further TTD
compensation after November 14, 2011, but allowed TTD compensation through the
No. 13AP-77 5
surgery date and recovery. Ultimately, it is the commission, not this court, who is the
exclusive evaluator of the weight and credibility of the evidence. State ex rel. LTV Steel
Co. v. Indus. Comm., 88 Ohio St.3d 284, 287 (2000). Thus, the commission's and
Whirlpool's objections are sustained.
IV. CONCLUSION
{¶11} In conclusion, after review of the magistrate's decision, an independent
review of the record, pursuant to Civ.R. 53, and due consideration of all the objections,
we find that the magistrate has properly determined the pertinent facts and adopt them
as our own. Both the commission's and Whirlpool's objections are sustained. For the
reasons set forth in this decision, however, we do not adopt the magistrate's conclusions
of law and deny the requested writ of mandamus.
Objections sustained;
writ of mandamus denied.
KLATT, J., concurs.
TYACK, J., dissents.
TYACK, J. dissenting.
{¶ 12} Because I see the magistrate's decision as correctly addressing the pertinent
issues, I would adopt it and grant the writ as indicated. Because the majority of this panel
does not do so, I respectfully dissent.
T. BRYANT, J., retired, formerly of the Third Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
_____________________________
No. 13AP-77 6
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. LaShawn Robertson, :
Relator, :
v. : No. 13AP-77
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Whirlpool, Inc.,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on August 27, 2013
Larrimer and Larrimer, and Thomas L. Reitz, for relator.
Michael DeWine, Attorney General, and Naveen V.
Ramprasad, for respondent Industrial Commission of Ohio.
Bugbee & Conkle, LLP, Mark S. Barnes, Andrew J.
Wilhelms, and Janelle M. Matuszak, for respondent
Whirlpool, Inc.
IN MANDAMUS
{¶13} In this original action, relator, LaShawn Robertson, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its January 5, 2012 order that exercised continuing jurisdiction over the
August 9, 2011 order of its staff hearing officer ("SHO") and to enter an order reinstating
the SHO's order that had ruled upon the May 10, 2011 motion of respondent, Whirlpool,
No. 13AP-77 7
Inc. ("Whirlpool"), regarding its liability to pay temporary total disability ("TTD")
compensation.
Findings of Fact:
{¶14} 1. On August 9, 2010, relator injured her left shoulder while employed as a
laborer for respondent Whirlpool Inc., a self-insured employer under Ohio's Workers'
Compensation laws.
{¶15} 2. Following a January 12, 2011 hearing, a district hearing officer ("DHO")
allowed the industrial claim (No. 10-839695) for: "left shoulder bursitis; labral tear left
shoulder."
{¶16} 3. Whirlpool administratively appealed the DHO's order of January 12,
2011.
{¶17} 4. Following a March 14, 2011 hearing, an SHO issued an order that
modified the DHO's order. The SHO allowed the claim for "left shoulder bursitis" but
disallowed the claim for "labral tear, left shoulder" and "sprain/strain left shoulder."
The SHO's order also stated "temporary total disability compensation remains payable
upon submission of proof of disability due to allowed conditions within this claim."
{¶18} 5. After her injury, relator came under the care of orthopedic surgeon
David D. Lin, M.D. Following a January 4, 2011 office examination, Dr. Lin diagnosed
left shoulder bursitis and superior glenoid labrum lesion.
{¶19} 6. On February 3, 2011, Dr. Lin completed a C-84 on which he certified
TTD beginning January 4, 2011. On the C-84, Dr. Lin listed the ICD-9 codes for
shoulder bursitis and superior glenoid labrum lesion.
{¶20} 7. On February 9, 2011, relator was examined by Dr. Lin during an office
visit. Dr. Lin's office note of that date lists shoulder bursitis and superior glenoid
labrum lesion as the assessments.
{¶21} 8. On March 29, 2011, Dr. Lin completed another C-84 on which he
certified TTD from February 9, 2011 to an estimated return-to-work date of May 2, 2011.
On the C-84, Dr. Lin only listed the ICD-9 code for shoulder bursitis. He also indicated
that relator was waiting for approval of surgery. February 9, 2011 was listed as the date
of last examination.
No. 13AP-77 8
{¶22} 9. On May 10, 2011, Whirlpool moved for "clarification of its liability, if
any, to pay ongoing temporary total compensation in this claim." Whirlpool claimed
that Dr. Lin's C-84s are inconsistent with his office notes as to the conditions being
treated.
{¶23} 10. Following a June 24, 2011 hearing, a DHO issued an order addressing
Whirlpool's May 10, 2011 motion. The DHO noted that Whirlpool had paid TTD
compensation up to January 14, 2011, but had refused to pay further compensation on
grounds that the disability was caused by the labral tear. The DHO ordered Whirlpool
to pay TTD compensation from January 14, 2011 "to present and continuing."
{¶24} 11. Whirlpool administratively appealed the DHO's order of June 24, 2011.
{¶25} 12. On June 27, 2011, relator underwent left shoulder surgery performed
by Dr. Lin. In his June 27, 2011 operative report, Dr. Lin lists three post-operative
diagnoses:
[One] Left shoulder impingement.
[Two] Degenerative labral tear.
[Three] Arthritis, post-traumatic.
{¶26} Under "Operation Performed," Dr. Lin lists two procedures:
[One] Left shoulder arthroscopic subacromial
decompression.
[Two] Left shoulder extensive debridement.
{¶27} Under "Description of Operation," Dr. Lin wrote:
A standard posterior portal hold of the shoulder joint itself
was established followed by the direct anterior portal hold.
The shoulder itself had extensive posttraumatic and
degenerative processes going on including a degenerative
SLAP tear with significant degeneration of the posterior
labrum. The tissue was very poor and friable. This was not a
repairable tear. The labrum itself was not degenerative. We
did extensive debridement of the shoulder and including
debriding and removing the posterior aspect of the labrum.
The cuff appeared to be intact. The joint also had significant
arthritis with Grade II changes and this was debrided back.
Extensive debridement was performed. We turned our
attention to the subacromial space. She had extensive
bursitis and inflammation in this region and a complete
bursectomy and acromioplasty were performed using bipolar
No. 13AP-77 9
device, clipper and burr. An acromioplasty was performed
back to the plantar surface.v b
{¶28} 13. On August 3, 2011, Paul T. Hogya, M.D., who had previously examined
relator on May 17, 2011 on behalf of Whirlpool, wrote:
The additional medical documentation, including the
operative report left shoulder dated 6/27/11 confirms my
opinion as outlined in my report dated 5/31/11. Post-
operative diagnoses included Left Shoulder Impingement;
Degenerative Labral Tear; and Arthritis, Post-Traumatic.
These are non-occupational and disallowed conditions.
Thus, the period of total disability 3/1/11 through 5/1/11 and
surgery were for non-occupational and disallowed
conditions. Left shoulder bursitis from 8/9/10 is not
associated with total disability over 7 months after date of
injury.
{¶29} 14. On August 8, 2011, Dr. Lin wrote:
It is my opinion, within a reasonable degree of medical
probability that the following procedure(s) were performed
on June 27, 2011 to specifically address the allowed left
shoulder bursitis condition:
Extensive debridement[;] Bursectomy[;] Acromioplasty[.]
{¶30} 15. Following an August 9, 2011 hearing, an SHO issued an order that
modified the DHO's order of June 24, 2011. The SHO's order of August 9, 2011
explains:
The order of the District Hearing Officer, from the hearing of
06/24/2011, published 06/29/2011, is hereby MODIFIED to
the extent of this order, only. Therefore, the Employer's C-86
motion, filed 05/10/2011, is hereby granted to the extent of
this order, only. This order does clarify the liability of the
Self-Insuring Employer Whirlpool Corporation to pay
further temporary total disability compensation in this claim.
The Employer's C-86 motion, filed 05/10/2011, "requests
clarification of its liability, if any, to pay ongoing temporary
total compensation in this claim."
The basis for the Employer's request is the following facts:
No. 13AP-77 10
The Injured Worker's attending physician, David D. Lin,
M.D., had previously completed numerous C-84 Physician's
Disability Statements, dated 10/28/2010, 12/01/2010,
12/14/2010, and 02/03/2010, all indicating that the Injured
Worker was temporarily and totally disabled for two separate
conditions. Dr. Lin listed the conditions of 840.7, which is
the ICD code for superior glenoid labrum lesion, and 726.10,
which is the ICD code for disorders of bursae.
However, when this claim was subsequently formally
disallowed for the condition of labral tear, left shoulder, and
sprain/strain, left shoulder, pursuant to the Industrial
Commission Staff Hearing Officer's order of 03/14/2011,
published 03/17/2011, the next C-84 Physician's Disability
Statement, completed by David D. Lin, M.D., on 03/29/2011,
no longer listed the ICD code of 840.7, for superior glenoid
labrum lesion, as a condition being treated which prevents
the Injured Worker's return to work and only listed the
condition of 726.10, disorders of bursae. Dr. Lin did not
submit a written explanation of hwy he had disorders of
bursae. Dr. Lin did not submit a written explanation of why
he had changed the listing of the condition(s) being treated
which prevent a return to work. Furthermore, the Employer
notes that Dr. Lin's office notes continued to discuss the
condition of a labral lesion of the left shoulder. Therefore,
the employer argued that the C-84 statements subsequent to
03/14/2011, could not be relied upon.
Furthermore, at box 10 of the C-84 form, Dr. Lin indicated
that his recommendation for disability was based on the fact
that the Injured Worker was awaiting surgery approval.
That surgery was performed on 06/27/2011, consisting of
left shoulder arthroscopic subacromial decompression and
left shoulder extensive debridement. Furthermore, the post-
operative diagnoses were left shoulder impingement,
degenerative labral tear and post-traumatic arthritis. The
Employer takes the position that none of those three
conditions is currently recognized in this claim and that the
surgery was performed for non-allowed and disallowed
conditions and, therefore, temporary total disability
compensation is not payable.
However, this Staff Hearing Officer notes that the allowed
condition of left shoulder (subacromial) bursitis is another
No. 13AP-77 11
name used for the condition of shoulder impingement, which
was one of the pre-operative and post-operative diagnoses
for the surgery of 06/27/2011.
Furthermore, the actual description of the operation, itself,
indicates that after treating the degenerative labral tear, Dr.
Lin then, "turned our attention to the subacromial space. She
had extensive bursitis and inflammation in this region and a
complete bursectomy and acromioplasty were performed
using bipolar device, clipper and burr" (emphasis added).
Furthermore, the Injured Worker's attending orthopedic
specialist, David D. Lin, M.D., submitted a narrative report,
dated 08/08/2011, stating that, "It is my opinion, within a
reasonable degree of medical probability, that the following
procedures were performed on June 27, 2011 to specifically
address the allowed left shoulder bursitis condition:
"Extensive debridement, Bursectomy and Acromioplasty."
Thus, Dr. Lin supports the fact that a significant portion of
the surgery performed on 06/27/2011 was for treatment of
the residuals of the allowed condition of left shoulder
(subacromial) bursitis.
Therefore, this Staff Hearing Officer finds the opinion of
David D. Lin, M.D., to be persuasive in regard to the Injured
Worker's extent of disability resulting from the allowed
condition in this claim.
Therefore, it is the finding of this Staff Hearing Officer that
the Injured Worker was temporarily and totally disabled due
to impairment resulting from the allowed condition of left
shoulder bursitis, while awaiting approval for the surgery
which took place on 06/27/2011, and a reasonable period of
recovery thereafter.
Therefore, it is the order of this Staff Hearing Officer that
temporary total disability compensation is hereby
GRANTED for the period from 01/14/2011 through the date
of 08/14/2011, and continuing thereafter upon submission of
competent supporting medical proof of a temporary and
total disability resulting from impairment due to the allowed
condition in this claim.
This order is based upon the C-84 Physician's Disability
Statements completed by David Lin, M.D., on 03/29/2011,
No. 13AP-77 12
06/07/2011 and 06/26/2011, as well as the operative report
of 06/27/2011 and Dr. Lin's narrative statement of
08/08/2011.
{¶31} 16. On September 1, 2011, another SHO mailed an order refusing
Whirlpool's appeal from the SHO's order of August 9, 2011.
{¶32} 17. On September 9, 2011, Whirlpool moved for reconsideration of the
SHO's order of August 9, 2011. In its memorandum in support, Whirlpool wrote:
The claimant was examined by Paul Hogya, M.D., and in
reports dated May 31, 2011 and August 3, 2011, Dr. Hogya
confirms bursitis was not the disabling condition. Dr. Hogya
confirms the torn glenoid labrum was the reason for surgery.
As pointed out by Dr. Hogya in his August 3, 2011 report, the
claimant's operative report dated June 27, 2011 confirms the
surgery was for conditions not allowed in this claim. In fact,
the post operative diagnosis include[d] left shoulder
impingement, degenerative labral tear and arthritis, post
traumatic. None of these conditions are allowed in the claim
and the torn glenoid labrum has been specifically disallowed.
The condition bursitis is not even listed on the operative
report as a diagnosis.
* * *
In the staff hearing officer's August 9, 2011 order in the
present claim, he bases his decision to award temporary total
compensation on the incorrect reasoning "this staff hearing
officer notes that the allowed condition of left shoulder
(subacromial) bursitis as another name used for the
condition of shoulder impingement." This is medically not
correct. As stated in a supplemental report dated August 23,
2011 [sic] from Paul Hogya, M.D., the medical condition
shoulder impingement is not the same or synonymous with
shoulder bursitis. As pointed out by Dr. Hogya, these
conditions even have different ICD-9 codes highlighting the
fact they are different conditions. Impingement refers to
impingement of the supraspinatus tendon due to arthritic
spurring and developmental downward curving/hooking of
the acromion. Bursitis refers to focal inflammation of the
bursa sac, in this case the subacromial bursa. Therefore, it is
clear the staff hearing officer made mistakes of both law and
fact in his order.
No. 13AP-77 13
{¶33} 18. On October 12, 2011, 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
Employer has presented evidence of sufficient probative
value to warrant adjudication of the request for
reconsideration, regarding the alleged presence of a clear
mistake of fact in the order from which reconsideration is
sought, and a clear mistake of law of such character that
remedial action would clearly follow.
Specifically, it is alleged that the Staff Hearing Officer made
a clear mistake of law by granting temporary total disability
compensation when the office notes of David Lin, M.D., are
inconsistent with the C-84 forms. See State ex rel.
Genuine Parts Co. v. Indus. Comm. 160 Ohio App.3d
99, 2005 Ohio 1447. In addition, it is alleged that the Staff
Hearing Officer made a clear mistake of fact and law by
finding the condition of "bursitis" is another name for the
condition of "shoulder impingement" without any medical
evidence to support such a finding.
The order issued 09/01/2011 is vacated, set aside and held
for naught.
Based on these findings, the Industrial Commission directs
that the Employer's request for reconsideration, filed
09/09/2011, is to be set for hearing to determine whether
the alleged mistake of fact and mistake of law as noted
herein are sufficient for the Industrial Commission to invoke
its continuing jurisdiction.
In the interest of administrative economy and for the
convenience of the parties, after the hearing on the question
of continuing jurisdiction, the Industrial Commission will
take the matter under advisement and proceed to hear the
merits of the underlying issues. The Industrial Commission
will thereafter issue an order on the matter of continuing
jurisdiction under R.C. 4123.52. If authority to invoke
continuing jurisdiction is found, the Industrial Commission
will address the merits of the underlying issues.
(Emphasis sic.)
No. 13AP-77 14
{¶34} 19. On November 1, 2011, at Whirlpool's request, relator was examined by
Dr. Hogya. In his four-page narrative report, dated November 14, 2011, Dr. Hogya
wrote:
In my medical opinion, the recognized left shoulder bursitis
long ago resolved. As such, she remains at maximum medical
improvement for that condition.
{¶35} 20. Following a January 5, 2012 hearing, the three-member commission,
on a unanimous vote, issued an order that vacates the SHO's order of August 9, 2011
based on continuing jurisdiction.
{¶36} 21. In its January 5, 2012 order, the commission explains its continuing
jurisdiction:
[T]he employer has met its burden of proving that the Staff
Hearing Officer order, issued 08/12/2011, contains a clear
mistake of fact. Specifically, the Staff Hearing Officer found
that the condition of "bursitis" was another name for the
condition of "shoulder impingement" without any medical
evidence to support such a finding. As such, the Staff
Hearing Officer made a medical determination in
contravention of State ex rel. yellow Freight System v. Indus.
Comm., 81 Ohio St.3d 56, 58, 689 N.E.2d 30 (1997).
{¶37} In its January 5, 2012 order, the commission ruled upon Whirlpool's
May 10, 2011 motion for clarification. The commission awarded TTD compensation
"from 01/14/2011 through 08/14/2011 and to continue only through 11/13/2011 with
submission of appropriate supporting medical evidence."
{¶38} Further, the commission denied TTD compensation as of November 14,
2011:
The commission finds that the Injured Worker is not entitled
to temporary total disability compensation as of 11/14/2011,
based on the examination report from Dr. Hogya who opined
that the allowed condition has resolved.
{¶39} 22. On January 29, 2013, relator, LaShawn Robertson, filed this
mandamus action.
No. 13AP-77 15
Conclusions of Law:
{¶40} Because the commission improperly exercised its continuing jurisdiction,
it is the magistrate's decision that this court issue a writ of mandamus, as more fully
explained below.
{¶41} In his order of August 9, 2011, the SHO found that "the allowed condition
of left shoulder (subacromial) bursitis is another name used for the condition of
shoulder impingement, which was one of the pre-operative and post-operative
diagnoses for the surgery * * *."
{¶42} In its January 5, 2012 order exercising continuing jurisdiction, the
commission identified the above quoted finding as a clear mistake of fact in the absence
of any medical evidence to support the finding. That is, there is no report from a
medical expert that directly states that shoulder bursitis is synonymous with shoulder
impingement.
{¶43} The SHO's order of August 9, 2011 does not cite to medical evidence to
support the finding that bursitis and shoulder impingement are the same. However, it is
conceivable that the SHO premised the finding upon articles that relator obtained from
the internet and submitted at the hearing for the SHO's consideration. The record
contains three internet articles submitted by relator.
{¶44} Here, relator argues that the three-member commission erred in finding a
clear mistake of fact based upon the stated absence of medical evidence when the
internet articles support the SHO's finding that bursitis is the equivalent of shoulder
impingement. That is, relator contends that the internet articles provide the necessary
medical evidence directly linking bursitis to shoulder impingement and, on that basis,
the commission's exercise of continuing jurisdiction was improper.
{¶45} In its order, the commission relied upon State ex rel. Yellow Freight Sys.,
Inc. v. Indus. Comm., 81 Ohio St.3d 56 (1998), to support its holding that the SHO's
order contains a clear mistake of fact. Here, both Whirlpool and the commission argue
that Yellow Freight supports the commission's finding of a clear mistake of fact. In
Yellow Freight, the court held that neither the commission nor its hearing officers have
medical expertise. Thus, medical issues in a claim must be supported by medical
No. 13AP-77 16
evidence submitted by medical experts who usually file a medical report that contains
the medical evidence.
{¶46} In the magistrate's view, it is not necessary that this court determine
whether the SHO could properly rely upon the internet articles to support a finding that
bursitis is the equivalent of shoulder impingement when the finding was not key to the
SHO's determination that the June 27, 2011 surgery was, at least in part, necessitated by
the allowed bursitis condition.
{¶47} The SHO's finding that bursitis is the equivalent of shoulder impingement
can be traced back to Whirlpool's argument presented in its memorandum in support of
reconsideration. As earlier noted, Whirlpool then pointed out "[t]he condition bursitis
is not even listed on the operative report as a diagnosis." Whirlpool then asserted that
the SHO's August 9, 2011 order was premised upon "incorrect reasoning" because, as
Whirlpool asserted, "shoulder impingement is not the same or synonymous with
shoulder bursitis."
{¶48} However, in its memorandum in support of reconsideration, Whirlpool
failed to point out that the operative report did in fact link the allowed bursitis to the
surgery which involved "a complete bursectomy and acromioplasty."
{¶49} Whirlpool's argument as presented in its memorandum in support of
reconsideration was premised upon the unspoken proposition that the word "bursitis"
must be directly referenced in the operative report's listing of the post-operative
diagnoses in order that the surgery be found related to the allowed left shoulder bursitis.
Whirlpool's unspoken proposition is incorrect. There is no authority to support the
proposition that the commission is limited to the post-operative diagnoses in
determining whether the surgery was performed to treat the allowed bursitis condition.
{¶50} Given the above analysis, it is clear that the SHO's order of August 9, 2011
determining a causal connection between the surgery and the allowed bursitis condition
does not depend upon a finding that the bursitis is the equivalent to shoulder
impingement. That finding is largely irrelevant given the operative report's description
of the operation which states that a complete bursectomy and acromioplasty were
performed.
No. 13AP-77 17
{¶51} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate its January 5, 2012 order that purports to
exercise continuing jurisdiction over the August 9, 2011 SHO's order, and to enter an
order that reinstates the SHO's order of August 9, 2011.
/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).