[Cite as State ex rel. Almendinger v. Indus. Comm., 2013-Ohio-5103.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, ex rel. :
Joel Almendinger,
:
Relator,
: No. 12AP-601
v.
: (REGULAR CALENDAR)
Industrial Commission of Ohio
and McGraw Construction Co., :
Respondents. :
D E C I S I O N
Rendered on November 19, 2013
Crowley, Ahlers & Roth Co., L.P.A., and Edward C. Ahlers,
for relator.
Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
CONNOR, J.
{¶ 1} Relator, Joel Almendinger, brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying relator's physician's request for medical services, and to enter
an order granting the request.
{¶ 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 has now rendered a decision and
recommendation that includes findings of fact and conclusions of law, which is
No. 12AP-601 2
appended to this decision. The magistrate concluded that the commission abused its
discretion in denying the request for medical services, and recommended that this court
issue the requested writ of mandamus.
{¶ 3} The commission has filed the following objection to the magistrate's
decision:
The magistrate erred in substituting his judgment for that of
the Industrial Commission in its factual interpretation of the
report of Dr. Elwert.
{¶ 4} As reflected in the facts given in the magistrate's decision, relator suffered
an industrial injury in 1983. His industrial claim was allowed for sprain lumbar region;
herniated disc L5-S1. Relator received care over the years from several chiropractors.
Relator began receiving chiropractic care from Rob Cartwright, D.C. in May 2011. Dr.
Cartwright filed an Ohio Bureau of Workers' Compensation ("bureau") C-9 on February
1, 2012, requesting authorization for medical services. Specifically, the C-9 requested
authorization for chiropractic manipulation and therapy, to include electrical
stimulation and mechanical traction, once per month for a six-month period. The
bureau requested that Jeffrey C. Elwert, D.C. conduct a medical review of relator.
{¶ 5} Dr. Elwert issued his report on February 21, 2012. Dr. Elwert reviewed
relator's medical history, and concluded that the medical services requested were not
reasonably related to the industrial injury, were not reasonably necessary for the
treatment of the industrial injury, and that the costs for the requested services were not
medically reasonable. Regarding the form C-9 filed by Dr. Cartwright, Dr. Elwert noted
that Dr. Cartwright "fail[ed] to identify sympomatology as specifically related to the
claim allowance of a herniated disc" and "fail[ed] to support that subjective complaints
and objective findings are consistent with claim allowances." (Stipulated Record, 9.)
Dr. Elwert further found that relator's visits with Dr. Cartwright were "on a fairly
consistent monthly increment indicating regularly scheduled appointments on a
supportive care/maintenance basis." (Stipulated Record, 9.) Dr. Elwert noted that,
pursuant to the Official Disability Guidelines regarding chiropractic care, "many passive
and palliative interventions can provide relief in the short term but may risk treatment
dependence without meaningful long-term change." (Stipulated Record, 9.) As relator
No. 12AP-601 3
had received treatment at the "same/similar frequency" for quite some time, Dr. Elwert
determined that the "continuation of care as requested would not be deemed
appropriate." (Stipulated Record, 9.)
{¶ 6} Following an April 18, 2012 hearing, a district hearing officer ("DHO")
issued an order denying the C-9 request. The DHO determined that relator failed to
carry his burden of proof, and determined that realtor had "not presented sufficient
persuasive medical evidence from the [his] treating physician, Dr. Cartwright,
establishing that the requested treatment" was reasonably related and medically
necessary and appropriate for treatment of the allowed conditions. (Stipulated Record,
1.)
{¶ 7} Relator filed an affidavit on April 25, 2012 indicating that, though he had
conversations with physicians over the years about the possibility of back surgery, he did
not want to have surgery. Relator indicated that, in "an effort to avoid surgery" he
"relied upon chiropractic care which [he] found to be very helpful." (Stipulated Record,
17.) Relator noted that he did not schedule regular chiropractic visits, as he would
simply call his chiropractor on a day when he felt he needed to go in for a visit.
{¶ 8} On May 25, 2012, Dr. Cartwright wrote a letter to the bureau, "appealing
the medically necessary care" to relator. (Stipulated Record, 13.) Dr. Cartwright
identified the relator's allowed conditions, and asserted that the requested care was
"directly related" to the conditions allowed in relator's industrial claim. Dr. Cartwright
noted that relator's chiropractic visits allowed relator to function and to avoid surgery.
Dr. Cartwright stated that relator was "doing better by 75% in pain and function, and
50% better in increased strength." (Stipulated Record, 13.)
{¶ 9} Following a June 11, 2012 hearing, a staff hearing officer ("SHO") issued
an order affirming the denial of the C-9. The SHO determined that the "requested
chiropractic treatment [was] not appropriate or necessary for the treatment of the
allowed conditions based upon the report of Dr. Elwert." (Stipulated Record, 3.)
{¶ 10} The magistrate determined that the SHO abused its discretion by relying
on Dr. Elwert's report to deny the C-9 request. The magistrate concluded that "[w]ith
the issuance of Dr. Cartwright's May 25, 2012 report, Dr. Elwert's report is no longer
some evidence that can support a finding that the C-9 is deficient because of a failure to
No. 12AP-601 4
relate symptomology to the allowed conditions of the claim." (Magistrate's Decision, 8.)
The magistrate further noted that, as the SHO's order did not mention Dr. Cartwright's
May 25, 2012 report, the SHO's order indicated that the SHO had not considered the
May 25, 2012 report.
{¶ 11} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of
the objected matters "to ascertain that the magistrate has properly determined the
factual issues and appropriately applied the law." A relator seeking a writ of mandamus
must establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon
respondent to perform the act requested, and (3) that relator has no plain and adequate
remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police and
Firemen's Disability and Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting
State ex rel. Consolidated Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A
clear legal right exists where the [commission] abuses its discretion by entering an order
which is not supported by 'some evidence.' " Id.
{¶ 12} The commission is exclusively responsible for evaluating the weight and
credibility of the evidence. State ex rel. Burley v. Coil Packaging, Inc., 31 Ohio St.3d 18,
20-21 (1987). Thus, the reviewing court's role is to determine whether there is some
evidence in the record to support the commission's decision; a court may not substitute
its judgment for that of the commission or second-guess the commission's evaluation of
the evidence. State ex rel. Guthrie v. Indus. Comm., 133 Ohio St.3d 244, 2012-Ohio-
4637, ¶ 11.
{¶ 13} The commission need only enumerate the evidence it relied upon to reach
its decision. State ex rel. Scouler v. Indus. Comm., 119 Ohio St.3d 276, 2008-Ohio-
3915, ¶ 16, citing State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481, 483-
84 (1983). The commission is not required to list or cite evidence that has been
considered and rejected or explain why certain evidence was deemed unpersuasive. Id.,
citing State ex rel. DeMint v. Indus. Comm., 49 Ohio St.3d 19, 20 (1990). Nevertheless,
if the commission elects to list all evidence before it, "but omits a particular document
from that recitation," the court will presume that the commission overlooked the
document. Id. at ¶ 17. "If that document could influence the outcome of the matter in
question, we will return the matter to the commission for further consideration." Id.
No. 12AP-601 5
{¶ 14} The bureau and the commission share the power to oversee and determine
the reasonableness and necessity of health care expenditures. State ex rel. Sugardale
Foods, Inc. v. Indus. Comm., 90 Ohio St.3d 383, 386 (2000). Authorization for medical
treatment requires a causal relationship between the allowed conditions and the
proposed services. State ex rel. Miller v. Indus. Comm., 71 Ohio St.3d 229, 232 (1994).
In Miller, the Supreme Court of Ohio set forth the following three-step inquiry to
determine whether medical services should be authorized: (1) whether the requested
services reasonably relate to the allowed conditions; (2) whether the services are
necessary for treatment of the industrial injury; and (3) whether the cost of the
requested services is medically reasonable. A claimant bears the burden of proving all
three prongs of the Miller test in order to secure authorization for the requested
procedure. State ex rel. Maxim Healthcare Servs., Inc. v. Indus. Comm., 10th Dist. No.
11AP-122, 2012-Ohio-1012, ¶ 10.
{¶ 15} The magistrate recommended granting the requested writ because Dr.
Cartwright's May 25, 2012 report adequately connected relator's symptoms to the
allowed conditions, thereby abolishing Dr. Elwert's concern that Dr. Cartwright failed to
relate relator's symptomology to the allowed conditions. Dr. Elwert's report, however,
contained an additional basis for denying the C-9 request. Dr. Elwert noted in his report
that relator had received care with Dr. Cartwright on a fairly consistent basis, and noted
that "passive and palliative interventions can provide relief in the short term but may
risk treatment dependence without meaningful long-term change in the clinical picture
of the claimant." (Stipulated Record, 9.) Because of the risk of treatment dependence
without meaningful improvement, Dr. Elwert determined that the requested care was
inappropriate.
{¶ 16} Dr. Cartwright's May 25, 2012 report does not address Dr. Elwert's latter
conclusion that the requested care was inappropriate. Rather, Dr. Cartwright noted in
his report that he had released relator from his care before "with several failed attempts
as [relator's] condition worsens and necessitates the need for further care." (Stipulated
Record, 13.) This statement seems to support Dr. Elwert's determination that the
requested medical care would result in treatment dependence without any meaningful
long-term change in relator's physical condition.
No. 12AP-601 6
{¶ 17} As Dr. Elwert expressed two concerns over Dr. Cartwright's C-9 request,
and Dr. Cartwright's May 25, 2012 report only rectified one of Dr. Elwert's two concerns,
Dr. Elwert's report remained some evidence which the commission could rely on to deny
the C-9 request. Moreover, because Dr. Cartwright's May 25, 2012 report did not
address Dr. Elwert's concern regarding the risk of treatment dependence without
meaningful improvements, the May 25, 2012 report would not have necessitated a
different finding by the SHO in this matter.
{¶ 18} As Dr. Elwert determined that the requested medical services were not
necessary for the treatment of the allowed conditions, as the services could result in
treatment dependence without meaningful improvements, there was some evidence in
the record to support the commission's decision to deny the C-9 request. Compare
Miller at 232 (finding authorization of funds for a weight loss program appropriate
where the weight loss was "geared towards improving the allowed industrial conditions,
[and] improvement [was] curative and not merely palliative," noting that it was "not
enough that weight loss decreases pain associated with the allowed conditions; [the]
weight-loss must actually improve those conditions"); State ex rel. Brown v. Indus.
Comm., 10th Dist. No. 02AP-108, 2002-Ohio-4313, ¶ 16.
{¶ 19} Following independent review, pursuant to Civ.R. 53, we find the
magistrate has properly determined the pertinent facts, and we adopt them as our own.
For the reasons set forth in this decision, however, we reject the magistrate's
conclusions of law. Instead, we conclude the commission did not abuse its discretion in
denying relator's physician's request for authorization of medical services, as Dr.
Elwert's report was some evidence which the commission could rely on to reject the C-9
request. As such, we sustain the commission's objection to the magistrate's decision and
deny relator's request for a writ of mandamus.
Objection sustained;
writ denied.
BROWN and SADLER, JJ., concur.
_________________
No. 12AP-601 7
A P P E N D I X
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, ex rel. :
Joel Almendinger,
:
Relator,
: No. 12AP-601
v.
: (REGULAR CALENDAR)
Industrial Commission of Ohio
and McGraw Construction Co., :
Respondents. :
MAGISTRATE'S DECISION
Rendered on May 20, 2013
Crowley, Ahlers & Roth Co., L.P.A., and Edward C. Ahlers,
for relator.
Michael DeWine, Attorney General, and Eric J. Tarbox, for
respondent.
IN MANDAMUS
{¶ 20} In this original action, relator, Joel Almendinger, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate its order denying his C-9 request for authorization of chiropractic treatments,
and to enter an order granting the request.
No. 12AP-601 8
Findings of Fact:
{¶ 21} 1. On November 2, 1983, relator injured his lower back while employed
with respondent McGraw Construction Co., a state-fund employer. The industrial claim
(No. 83-36291) is allowed for "sprain lumbar region; herniated disc L5-S1."
{¶ 22} 2. Over the years, relator has obtained chiropractic care from several
chiropractors.
{¶ 23} 3. In May 2011, relator began chiropractic care with Rob Cartwright, D.C.
{¶ 24} 4. On February 1, 2012, Dr. Cartwright completed a C-9 which is a form
provided by the Ohio Bureau of Workers' Compensation ("bureau").
{¶ 25} 5. On the C-9, Dr. Cartwright requested authorization of "chiropractic
care" once a month for six months.
{¶ 26} 6. The managed care organization ("MCO") denied the C-9 on February 3,
2012.
{¶ 27} 7. Relator administratively appealed the MCO's denial of the C-9.
{¶ 28} 8. Relator's C-9 request prompted the bureau to request a medical review
from chiropractor Jeffrey C. Elwert, D.C.
{¶ 29} 9. On February 22, 2012, Dr. Elwert signed a three-page narrative report
dated February 21, 2012. His report states:
Documents Reviewed:
Notes from Rob Cartwright, DC
Notes from Dr. Berner
Justification for continued care at present level
(Miller Criteria)
[One] Are the medical/other services reasonably related to
the industrial injury? ___Y x N
[Two] Are the requested services reasonably necessary for
the treatment of the industrial injury? ___Y x N
[Three] Are the costs for the services medically reasonable?
___Y x N
Treatment Modifications/Recommendations: (Must
Complete)
No. 12AP-601 9
Claimant sustained a work-related injury on 11/2/83.
MRI of the lumbar spine dated 8/20/96 identifies a right
paracentral disc extrusion with inferior migration at L5/S1.
This indents the anterior aspect of the dural sac and narrows
the lateral recess adjacent to the S1 nerve root.
An IME by Dr. Sullivan is identified on 9/10/10. Injury is
described as the claimant was bent over ductwork to pull up
a choker. Claimant stood up and took a few steps carrying a
choker then bent over to go under a steel beam when he felt
pain. Complain[t]s on this date were stiffness in the lower
back on the right side, posterior right thigh and posterior
right calf pain. Pain is 3/10.
Note from Dr. Berner on 12/21/09 identifies positive Kemps
with Lasegue's sign and Braggards test being positive.
Limited range of motion was noted at 40-45˚ of flexion, 10˚
of extension with 15-20˚ of right lateral bending and 20-25˚
of left lateral bending on 1/13/10, 45-50˚ of flexion was
noted with extension of 10-15˚ with 15-20˚ of right lateral
bending and left lateral bending at 25˚ with the same
orthopedic tests as positive.
Chiropractic note from Dr. Berner on 3/22/11 identifies
lower back pain and right leg pain. Lumbar range of motion
was 40-45˚ with pain, extension was 5-10˚ with right and
left lateral bending of 20-25˚. Kemps was positive on the
right with pain in the lumbosacral area. Lasegue's sign and
Braggards tests were positive.
Note from Dr. Cartwright on 5/17/11 identifies low back pain
6/10 and right leg pain at 5/10. Range of motion is 60˚ of
flexion, 20˚ of extension with right/left lateral bending 20˚.
Kemps was positive on the right with leg lowering been [sic]
positive on the right with positive sacral tenderness,
Yeomans, Hibbs, Nachlas and Elys.
Note from Dr. Cartwright on 5/18/11 identifies pain in the
lower back at 6/10 with pain in the right leg at 5/10. On
10/4/11, pain was 4/10 in the lower back and right leg. Pain
is stiff and sore in the lower back and mid back. On 12/14/11,
pain level in the lower back and right leg is 3/10. Positive
Kemps is noted. On 1/18/12, pain [in] the lower back is 4/10
with pain in the right leg at 3/10. Note states that the
claimant had a flareup [sic] over the holiday.
No. 12AP-601 10
C9 dated 2/1/12 requesting chiropractic manipulation and
therapy to include electrical stimulation and mechanical
traction at once per month x 6 months is not medically
necessary/appropriate. In review of documentation, treating
chiropractor fails to identify symptomatology as specifically
related to the claim allowance of a herniated disc. No
specifics as to the pain in the right leg. There is no evidence
of radicular findings. Treating chiropractor fails to support
that subjective complaints and objective findings are
consistent with claim allowances. In review of
documentation, visits are on a fairly consistent monthly
increment indicating regularly scheduled appointments on a
supportive care/maintenance basis. As per ODG Guidelines,
as with chiropractic care, many passive and palliative
interventions can provide relief in the short term but may
risk treatment dependence without meaningful long-term
change in the clinical picture of the claimant. Treatment has
been rendered at the same/similar frequency. The
continuation of care as requested would not be deemed
appropriate.
{¶ 30} 10. On February 29, 2012, the bureau denied the C-9 request. Relator
administratively appealed the bureau's order.
{¶ 31} 11. Following an April 18, 2012 hearing, a district hearing officer ("DHO")
issued an order that vacates the bureau's order of February 29, 2012 but also denies the
C-9 request. The DHO's order explains:
The C-9 from Dr. Cartwright, dated 02/01/2012, requesting
chiropractic treatment, 1x a month for 6 months, beginning
02/01/2012, is denied.
The District Hearing Officer finds that the Injured Worker
has not met his burden of proving by a preponderance of the
evidence that the requested treatment is reasonably related
and medically necessary and appropriate for treatment of the
allowed conditions in this claim.
The District Hearing Officer finds that the Injured Worker
has not presented sufficient persuasive medical evidence
from the Injured Worker's treating physician, Dr.
Cartwright, establishing that the requested treatment is
reasonably related and medically necessary and appropriate
for treatment of the allowed conditions in this claim.
No. 12AP-601 11
Therefore, the C-9 from Dr. Cartwright, dated 02/01/2012, is
denied in its entirety.
The District Hearing Officer also relies on the medical review
of Dr. Elwert dated 02/22/2012.
{¶ 32} 12. Relator administratively appealed the DHO's order of April 18, 2012.
{¶ 33} 13. On May 25, 2012, Dr. Cartwright wrote:
I am appealing the medically necessary care to Mr. Joel
Almendinger. This is directly related to his injuries as noted
above. This is based upon an exacerbation to lumbar
herniated disc and lumbar sprain / strain. He has been
having pain in this area initially since this initial accident.
Joel continues to function and this treatment keeps him
stable through his lumbar spine preventing surgery. I would
submit the fact that three of Joel's previous physicians have
all recommended surgery which Joel has been able to avoid
by seeking treatment at our office on an as needed basis. It
should also be noted Joel testified to this during his last
hearing. Joel has had many complicating factors and
multiple area of diagnosis from this injury in which I will
prove with additional worksheet and from extent of injuries
this is a complicated case. Orthopedic tests were positive,
and atrophy and weakness were present in the allowed
related soft tissue musculature. I presented in the
complicating factors in which I will provide again when I
sent the C9 in and explained all the issues which have
delayed treatment. He is currently doing better by 75% in
pain and function, and 50% better in increased strength. We
have released him with several failed attempts as his
condition worsens and necessitates the need for further care.
His outcomes have improved and he continues to faithfully
do home exercises, stretches, walk on the treadmill every
day, etc. The above claim is entirely based upon Miller
Criteria and professional opinion, and a high degree of
chiropractic certainty and probability. This is directly related
to the allowed conditions in the claim and is casually [sic]
related and cost effective.
{¶ 34} 14. On April 25, 2012, relator executed an affidavit stating:
[One] I am Joel Almendinger, claimant in Ohio Workers'
Compensation claim 83-36291.
No. 12AP-601 12
[Two] Since my work injury on November 2, 1983, I have
had persistent back pain and I have as well experienced pain
running down into my legs, especially my right leg.
[Three] I have had conversations over the years with
physicians about the possibility of surgery, but I do not want
surgery and I have done my best to try to avoid the need for
surgery.
[Four] In an effort to avoid surgery, and in an effort to avoid
having to take narcotic pain medication on a regular basis, I
have over the years relied upon chiropractic care which I
have found to be very helpful.
[Five] My chiropractors, Dr. Gary Berner and Rob
Cartwright, have spoken with me about the importance of
doing home exercises, including stretches, and I have been
and continue to do these on a regular basis; I also try to walk
as much as possible, including walking on a treadmill at my
home.
[Six] I do still continue to have significant problems with my
back and although I have been doing fairly well in general for
the past few years, I do have bad days when I have increased
pain, which is very limiting.
[Seven] Over the past couple of years or more, I have had
authorization in my workers' compensation claim for a fairly
limited number of visits both with Dr. Berner and with Dr.
Cartwright.
[Eight] I have tried to use the authorized visits as wisely as I
could, meaning that I try to go at times when I really feel that
I need to go.
[Nine] I have not been scheduling my appointments ahead of
time; [r]ather, I will call on a day when I feel that I need to
go in for a visit and my chiropractor's office will then try to
work me in to their schedule.
[Ten] I have found chiropractic treatment to be extremely
helpful in keeping my pain level under decent control and in
allowing me to function fairly well in general.
No. 12AP-601 13
{¶ 35} 15. Following a June 11, 2012 hearing, a staff hearing officer ("SHO")
issued an order affirming the DHO's order. The SHO explains:
The Injured Worker's motion requesting authorization of
chiropractic treatment at the rate of one treatment per
month for six months is denied.
The Staff Hearing Officer finds that the requested
chiropractic treatment is not appropriate or necessary for the
treatment of the allowed conditions based upon the report of
Dr. Elwert dated 02/22/2012.
{¶ 36} 16. On July 6, 2012, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of June 11, 2012.
{¶ 37} 17. On July 17, 2012, relator, Joel Almendinger, filed this mandamus
action.
Conclusions of Law:
{¶ 38} It is the magistrate's decision that this court issue a writ of mandamus, as
more fully explained below.
{¶ 39} Finding that the treating chiropractor, Dr. Cartwright, "fails to identify
symptomology as specifically related to the claim allowance of a herniated disc" and that
he "fails to support that subjective complaints and objective findings are consistent with
claim allowances," Dr. Elwert recommended denial of the C-9 request for authorization
of chiropractic treatments.
{¶ 40} Finding that Dr. Cartwright failed to connect the requested chiropractic
treatments to the allowed conditions, and also relying upon Dr. Elwert's report, the
DHO denied the C-9 request.
{¶ 41} Following the issuance of the DHO's order, Dr. Cartwright endeavored in
his May 25, 2012 report, to address the DHO's concern, as expressed in Dr. Elwert's
report, that Dr. Cartwright had failed to relate symptomology to the allowed herniated
disc.
{¶ 42} In fact, in his May 25, 2012 report, Dr. Cartwright lists the claim number
and describes the claim allowances. He starts the body of his report by opining that the
requested chiropractic treatments are "directly related to his injuries" and "[t]his is
based upon an exacerbation to lumbar herniated disc and lumbar sprain/strain." Dr.
No. 12AP-601 14
Cartwright finishes the first paragraph of his report by opining that the requested
chiropractic treatments are "directly related to the allowed conditions in the claim."
{¶ 43} In short, Dr. Cartwright, in his May 25, 2012 report, directly answers the
concerns that Dr. Elwert raised in his February 21, 2012 report. With the issuance of Dr.
Cartwright's May 25, 2012 report, it can no longer be said that Dr. Cartwright has failed
to relate symptomology to the allowed conditions. Consequently, the SHO cannot
continue the reliance upon Dr. Elwert's report to support the SHO's stated proposition
that "the requested chiropractic treatment is not appropriate or necessary for the
treatment of the allowed conditions." With the issuance of Dr. Cartwright's May 25,
2012 report, Dr. Elwert's report is no longer some evidence that can support a finding
that the C-9 is deficient because of a failure to relate symptomology to the allowed
conditions of the claim.
{¶ 44} Therefore, it was an abuse of discretion for the SHO to find that "requested
chiropractic treatment is not appropriate or necessary for the treatment of the allowed
conditions" based upon Dr. Elwert's report.
{¶ 45} Moreover, the SHO's order strongly suggests that the May 25, 2012 report
of Dr. Cartwright was not considered. There is no mention of the report in the SHO's
order. When the commission fails to consider relevant evidence submitted to it, its
order adjudicating the issue cannot stand. See State ex. rel. Scouler v. Indus. Comm.,
119 Ohio St.3d 276, 2008-Ohio-3915; State ex rel. Donohoe v. Indus. Comm., 10th Dist.
No. 08AP-201, 2010-Ohio-1317, affirmed 130 Ohio St.3d 390, 2011-Ohio-5798; State ex
rel. Gonzalez v. Lewis Tree Serv. Inc., 10th Dist. No. 10AP-755, 2011-Ohio-6816.
{¶ 46} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate the June 11, 2012 order of its SHO, and to
enter an order consistent with this magistrate's decision.
/s/ Kenneth W. Macke
KENNETH W. MACKE
MAGISTRATE
No. 12AP-601 15
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).