[Cite as State ex rel. Columbus Distrib. Co. v. Williams, 2015-Ohio-4253.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
The Columbus Distributing Co.,
:
Relator,
:
v. No. 14AP-483
:
Scott C. Williams and (REGULAR CALENDAR)
Industrial Commission of Ohio, :
Respondents. :
D E C I S I O N
Rendered on October 13, 2015
Michael Soto, for relator.
Mitchell+Pencheff, Fraley, Catalano & Boda Co., Daniel K.
Boda and Andrew F. Fuchs, for respondent Scott C.
Williams.
Michael DeWine, Attorney General, and Patsy A. Thomas,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
BRUNNER, J.
{¶ 1} Relator, The Columbus Distributing Co., has filed this original action
requesting the court to issue a writ of mandamus directing respondent Industrial
Commission of Ohio ("commission") to vacate the June 7, 2011, October 1 and
November 26, 2012, and April 29, 2014 orders of the commission's staff hearing officer
and to deny the requests of respondent Scott C. Williams for reactivation of his claim,
which previously had been allowed for low back sprain and herniated disc L5-S1, and for
additional treatment and diagnostic testing.
No. 14AP-483 2
{¶ 2} The matter was referred to a magistrate pursuant to Civ.R. 53(C) and Loc.R.
13(M) of the Tenth District Court of Appeals. Our magistrate's decision included findings
of fact and conclusions of law and is appended hereto.
{¶ 3} Recommending that we deny a writ of mandamus, the magistrate concluded
that the commission appropriately considered and found that Williams was entitled to
reactivate his claim and then proceeded to deny his treatment request on account of its
vagueness. No objections to the magistrate's decision have been filed. We find no error of
law or other defect in the decision. Therefore, we adopt the decision as our own,
including the findings of fact and conclusions of law contained therein.
{¶ 4} In accordance with our magistrate's decision, we deny the requested writ of
mandamus.
Writ of mandamus denied.
KLATT and DORRIAN, JJ., concur.
No. 14AP-483 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
The Columbus Distributing Co.,
:
Relator,
:
v. No. 14AP-483
:
Scott C. Williams and (REGULAR CALENDAR)
Industrial Commission of Ohio, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on July 29, 2015
Michael Soto, for relator.
Mitchell+Pencheff, Fraley, Catalano & Boda Co., Daniel K.
Boda and Andrew F. Fuchs, for respondent Scott C.
Williams.
Michael DeWine, Attorney General, and Colleen C. Erdman,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 5} In this original action, relator, The Columbus Distributing Co. requests a
writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate that portion of the June 7, 2011 order of its staff hearing officer ("SHO") that grants
claim reactivation, and to enter an amended order that denies claim reactivation.
No. 14AP-483 4
Findings of Fact:
{¶ 6} 1. On March 2, 1999, Scott C. Williams ("claimant") injured his lower back
while employed as a "bulk merchandiser" for relator, a self-insured employer under
Ohio's workers' compensation laws. The industrial claim (No. 99-443261) is allowed for:
"low back sprain/strain; herniated disc L5-S1."
{¶ 7} 2. On April 15, 1999, claimant underwent an MRI of his lumbar spine.
Mary Oehler, M.D., the interpreting radiologist, wrote:
IMPRESSION:
Paracentral disk protrusion of L5-S1 deforming the S1 nerve
root and narrowing the left lateral recess.
{¶ 8} 3. Relator last authorized treatment in this claim in February 2000 when it
approved a repeat lumbar MRI. On February 16, 2000, claimant underwent the repeat
MRI. The interpreting radiologist wrote:
CLINICAL HISTORY Lumbar radiculopathy with low back
pain radiating into the left leg and foot and numbness.
COMPARISON 4/15/99.
***
FINDINGS L5-S1 Desiccated, mildly narrowed disk
posteriorly. Broad central/left paracentral disk protrusion
without definite evidence of nerve root or spinal sac
compression. The protrusion is smaller than it was on the
previous examination when it exhibited some mass effect.
Small osteophyte on the left protruding into the neural
foramen, but without significant neural foraminal
narrowing.
***
IMPRESSION
[One] Minimal central/left paracentral disk protrusion at L5-
S1 without definite evidence of spinal sac or nerve root
compression.
No. 14AP-483 5
{¶ 9} 4. On December 29, 2008, claimant was examined and evaluated by
Charles B. May, D.O. In his two-page narrative report, dated December 29, 2008, Dr.
May wrote:
Currently, Mr. Williams complains of low back pain with left
lateral leg numbness and left leg pain shooting to the left foot
last two digits. He states that his left calf has "deteriorated."
He has no myelopathic bowel or bladder symptoms.
***
There was left calf atrophy with the left calf measuring 44 cm
in circumference and 10 cm above the lateral malleolus and
the right calf measuring 49 cm in circumference, 10 cm
above the lateral malleolus. He was unable to toe walk on the
left. His gait was satisfactory and did not require ambulatory
aids. There was a sensory loss noted in an L5-S1 distribution
on the left.
Mr. Williams presents to my office at this time with low back
pain, left leg radicular symptoms, and left calf atrophy
directly and proximately due to and caused by his
03/02/1999 work injury. There has been no interim injury to
the lumbar spine according to Mr. Williams. He has had
progressive deterioration of his left calf. His low back pain
and left leg radicular symptoms are getting progressively
worse. He would like something definitive done for his back
if indicated.
We have completed a form C-9 requesting authorization for
the following:
[One] Reactivation of Mr. Williams' claim.
[Two] MRI scan of the lumbar scan.
[Three] X-rays of the lumbar spine with obliques and
standing lateral flexion and extension views.
[Four] EMG with nerve conduction studies of the lumbar
spine and left lower extremity.
[Five] Spine surgery consultation.
[Six] Further office visits to Grandview Family Practice three
or four times per year.
{¶ 10} 5. On December 31, 2008, Dr. May completed form C-9 provided by the
Ohio Bureau of Workers' Compensation ("bureau"). The C-9 form is captioned:
"Physician's Request for Medical Service or Recommendation for Additional Conditions
No. 14AP-483 6
for Industrial Injury or Occupational Disease." On the form, Dr. May requested the items
listed in his December 29, 2008 report. Dr. May also wrote: "Reactivate claim."
{¶ 11} 6. In January 2009, relator's third-party administrator denied the C-9
request.
{¶ 12} 7. On February 6, 2009, on form C-86, claimant moved: "[T]hat this claim
be reactivated per the C-9 request by Dr. May dated 12/31/08." In support, claimant
submitted the C-9 and the December 29, 2008 report of Dr. May.
{¶ 13} 8. On March 27, 2009, at relator's request, claimant was examined by
Mark T. Finneran, M.D. In his four-page narrative report, Dr. Finneran wrote:
Chief Complaint: Mr. Williams complains that his entire
left leg bothers him. The pain centers at the knee and
radiates proximally and distally.
***
Physical Examination:
***
Inspection of the lower extremities reveals obvious wasting
of the medial head of the left gastrocnemius. There appears
to be wasting of the median head of the quadratus femoris
but the thighs measure 49 cm in circumference bilaterally.
The right calf measures 48 cm in circumference and the left
calf measures 45 cm in circumference. Sensory examination
reveals sensory loss in the distribution of the S1 nerve root.
Motor power is strong and is provided with good effort.
There is some weakness with internal rotation of the ankle.
Reflexes are 2/2 at the right knee and 0/2 at the left knee.
Both ankles are 0/2. Inspection of the knee reveals medial
joint line tenderness. McMurray's is negative.
Discussion: Mr. Williams is a 32-year-old man who
strained his low back and herniated the L5-S1 disc in 1999.
An MRI showed a disc protrusion at L5-S1 and an EMG
showed an S1 radiculopathy. Mr. Williams was treated
conservatively with 3 epidural steroid injections and his
symptoms resolved. A repeat MRI in 2000 showed
resolution of the herniated disc and an abatement of the
nerve root compression. Mr. Williams began noticing
No. 14AP-483 7
wasting in his left calf about five years ago. One year ago he
began to limp from left knee pain.
Conclusions:
***
In my professional opinion there are reliable and objective
clinical findings to support the diagnosis of a low back sprain
strain and a herniated disc at the L5-S1 level as a direct result
of the March 02, 1999 industrial injury. Based on my review
of the medical records, the history provided by Mr. Williams,
the serial MRIs showing resolution of the herniated disc, the
lack of a need for ongoing care, and my examination today,
both of the allowed conditions in this claim have resolved.
***
I believe that Mr. William's [sic] current complaints are
attributable to conditions other than those allowed in this
claim. * * * The pattern of muscle wasting is focal and very
atypical; only the medial head of the gastrocnemius is
atrophied while the lateral head of the gastrocnemius and
the soleus are spared. Based on limited medical data I am
unable to state that Mr. Williams' complaints are
degenerative in nature.
***
In my professional opinion the services requested by Dr. May
on the C-9 dated December 31, 2008 are not reasonably
related to the allowed conditions in this claim, reasonably
necessary for treatment of the allowed conditions in this
claim and the cost is not medically reasonable. If Mr.
Williams' symptoms were due to the industrial injury in this
claim he would not have had a 10 year hiatus in treatment.
He would not exhibit a focal neurologic deficit as he does
today with the involvement of only the median head of the
left gastrocnemius and left knee pain.
Even if Mr. Williams' symptoms were due to the industrial
injury in this claim, reactivation of the claim would be of no
medical benefit. Neurologic changes are understood to be
permanent within one or two years after onset, and any
neurologic changes that might have [been] addressed
surgically in 1999 would now be permanent.
No. 14AP-483 8
Mr. Williams noticed wasting 5 years after the injury. He
became symptomatic 1 year ago. There is no relationship
between the current symptom complex and the industrial
injury 10 years ago. Therefore it is not reasonably necessary,
appropriate or cost effective to perform an MRI, x-rays, an
EMG, and get a consultation from the spine surgeon under
this industrial claim. It is more likely than not that Mr.
Williams [sic] symptoms are due to conditions other than
those allowed in this claim.
{¶ 14} 9. Following an April 24, 2009 hearing, a district hearing officer ("DHO")
issued an order denying claimant's February 6, 2009 motion. The DHO's order explains:
The District Hearing Officer finds that the Injured Worker's
request for authorization for the following, as requested by
the 12/31/2008 C-9 of Dr. May, is denied: lumbar spine
MRI, lumbar spine x-ray, EMG/NCV testing. The District
Hearing Officer is not persuaded that this requested
diagnostic testing is reasonably related to and reasonably
necessary for the allowed conditions and industrial injury of
03/02/1999.
This order is based on the 03/27/2009 report of Dr.
Finneran.
{¶ 15} 10. Claimant administratively appealed the DHO's order of April 24, 2009.
{¶ 16} 11. Following an August 24, 2009 hearing, an SHO issued an order
affirming the DHO's order of April 24, 2009. The SHO's order explains:
The Staff Hearing Officer finds that the 12/31/2008 C-9 of
Dr. May remains denied. The Injured Worker is denied
authorization for a lumbar spine MRI, lumbar spine x-ray
and lumbar EMG/NCV testing. The Staff Hearing Officer
finds that the Injured Worker has not provided sufficient
information to reasonably relate the need for these tests to
the allowed conditions in the claim and has not shown that
these tests are necessary. This decision is based on the
03/27/2009 report of Dr. Finneran. He found that, "There is
no relationship between the current symptom complex and
the industrial injury ten years ago." He went on to state that,
"It is more likely than not that Mr. Williams' symptoms are
due to conditions other than those allowed in this claim."
{¶ 17} 12. On September 15, 2009, another SHO mailed an order refusing
claimant's administrative appeal from the SHO's order of August 24, 2009.
No. 14AP-483 9
{¶ 18} 13. On December 17, 2009, claimant was initially examined by William R.
Miely, M.D. Dr. Miely's office note of that date states:
History: Scott presents with a long history of pain in the
lower lumbosacral area with radiation into the left leg. He
initially had pain after lifting a case of beer. He had an MRI
scan that was done in 1999 followed by epidurals. He was
doing well neurologically. Today he complains of continued
pain, weakness, and atrophy in his left calf.
Physical Examination: Physical exam reveals peripheral
pulses intact. There is atrophy of his medial gastroc soleus
complex on the left side. Neurologically his deep tendon
reflexes were 2+ and symmetrical measuring the biceps,
triceps, brachioradialis, quadriceps and Achilles. He did also
have weakness of his gastroc on the left side, which was a
4/5.
Review of Diagnostic Studies: X-rays show fixed non-
rib-bearing vertebrae[.]
Impression: Radiculopathy.
Plan: MRI. We will follow him back after.
{¶ 19} 14. On January 5, 2010, claimant underwent an MRI of his lumbar spine.
The interpreting radiologist, Eric Yeh, M.D., wrote:
IMPRESSION:
[One] At L5-S1, there appears to be a disc bulge with a
superimposed central disc protrusion, which abuts the
ventral aspect of the thecal sac, and abuts the left greater
than right descending S1 nerve roots. No definite
laminectomy or laminotomy defects are identified at this
level. Degenerative changes also result in mild left neural
foraminal stenosis.
[Two] There is mild to moderate degenerative disc disease
and facet arthropathy in the remaining lumbar spine.
Degenerative changes result in mild central canal stenosis at
L4-L5. There are no levels of high-grade neural foraminal
stenosis.
{¶ 20} 15. On January 5, 2010, Dr. Miely wrote:
No. 14AP-483 10
History: He presents today after having his MRI scan done.
Review of Diagnostic Studies: MRI shows a recurrent
disc at L5-S1 on the left side consistent with his previous
injury and disc at that level, which I felt was related to his
original complaint.
Plan: I have recommended epidural steroids. We will set
that up in the near future.
{¶ 21} 16. On March 4, 2010, Dr. Miely wrote:
I first examined this patient in my office on December 17,
2009, for back and left leg pain that he relates to a work
related injury from March 1999, when he lifted a case of
beer. At the time of his injury, he was treated with a series of
epidural steroid injections. You may refer to my notes for
results of my exam.
An MRI performed on January 5, 2010, demonstrated a
recurrent disc at L5-S1 on the left, consistent with his
previous injury at the same level in 1999. I recommended a
series of epidural steroid injections.
It is my opinion that the recurrent disc at L5-S1 on the left is
related to his original injury at the same level, from March
1999.
{¶ 22} 17. On July 19, 2010, claimant filed form C-86 upon which he moved as
follows:
Now comes the claimant through counsel and asks that the
claim be reactivated for a recurrent disc herniation at the L5-
S1 level. In addition, claimant requests authorization for a
series of epidural steroid injections recommended by his
treating physician, William Miely, M.D. Attach[ed] in
support of this Motion is the 3/4/10 report of Dr. Miely as
well as the treatment notes and 1/5/10 MRI study.
{¶ 23} 18. On January 25, 2011, at relator's request, claimant was examined by
Seth H. Vogelstein, D.O., who issued a five-page narrative report. At page two under
"History," the last paragraph states:
Mr. Williams goes on to discuss that Dr. Miely informed him
that the 2010 MRI was essentially the same as the 2000
No. 14AP-483 11
study. He decided to have one epidural performed by a Dr.
Fitz, which he states did not result in any change in the
chronic left lower extremity numbness that he had been
experiencing. He states that it did relieve a little bit of the
chronic pressure in his back for about two months. He states
that he had not been having any pain in his leg before the
epidurals, so this was not really an issue.
{¶ 24} 19. In his report, Dr. Vogelstein responds to questions:
To respond to your questions:
[One] Are there reliable objective and clinical findings to
continue to support the diagnosis of the conditions currently
recognized in the claim (low back strain/sprain and HNP L5-
S1)? Have either or both of these conditions, as they relate to
the 03/09/99 industrial injury, resolved?
Mr. Williams' low back sprain resolved many years ago. The
HNP at L5-S1 did respond extremely well to a series of
epidurals, with follow up MRIs on 02/16/2000 and again on
01/05/10, revealing no continuing evidence of nerve root
compression. Therefore, the pressure that was being exerted
on the S1 nerve root by the L5-S1 disc noted on the 04/15/99
MRI did go on to resolve after the epidurals in 1999. Again,
the subsequent MRI in 2000 documented this to the MRI in
2010 appearing essentially unchanged from the 2000 study.
There continues to be no pressure for the disc being exerted
on the nerve root and therefore by definition, the disc
herniation at L5-S1 has resolved as well.
***
In my medical opinion, there has essentially been no change
in the allowed disc over the last 10 years. It is my medical
opinion that the disc has not re-herniated with the 2010 MRI
remaining improved from the original 1999 study.
Furthermore, epidurals are in the vast majority of cases not
beneficial in this type of chronic situation. Again, this was
essentially improved since the injured worker did have one
epidural performed about 10 months ago without any
significant benefit. Again, it is my medical opinion, within a
reasonable degree of medical probability that additional care
including epidural steroid injections is not reasonably
necessary or indicated in this case, for further treatment of
the allowed conditions in this claim.
No. 14AP-483 12
{¶ 25} 20. Following an April 19, 2011 hearing, the DHO issued an order denying
claimant's July 19, 2010 motion. The DHO's order explains:
First, the District Hearing Officer would note that the
Injured Worker's reporting of his symptoms has remained
consistent throughout the history of this claim as detailed in
various medical examination reports contained within the
claim file. However, the 02/16/2000 lumbar MRI states the
disc protrusion found at the L5-S1 level was smaller than
when previously examined on 04/15/1999 and that said
protrusion was without definite evidence of nerve root or
spinal sac compression. Based on the 12/17/2009 office note
from Dr. Miely, while it seems that Dr. Miely was aware of
the 1999 MRI, there is no reference to the 2000 MRI
referenced above. The next treatment note from Dr. Miely,
dated 01/05/2010, details Dr. Miely's review of the Injured
Worker's most recent MRI performed in 2010. Dr. Miely
stated that MRI showed a "recurrent" disc at the L5-S1 level.
Dr. Miely references this "recurrent" L5-S1 disc again in his
03/04/2010 letter that and he opines that this recurrent disc
is related to the original injury of March, 1999.
In his report, dated 01/25/2011, Dr. Vogelstein stated in the
last paragraph on page 2 that Dr. Miely did, in fact, review
the 2000 MRI and informed the Injured Worker the 2010
MRI was essentially the same as the 2000 MRI. If this is in
fact the case, the District Hearing Officer is unsure how any
disc herniation found could be classified as "recurrent" in
light of the lack of any evidence of nerve root compression.
While the Injured Worker has continued to have similar
problems as he has subjectively been experiencing since the
original injury, in light of the apparent resolution of the
nerve involvement at the L5-S1 disc the District Hearing
Officer is unsure as to how the allowed herniation could be
the source of the Injured Worker's problems. The District
Hearing Officer also notes from the 03/27/2009 report of
Dr. Finneran that Dr. Finneran also questioned the
relationship between the Injured Worker's symptoms and
the allowed conditions in light of the "abatement" of the
nerve root compression referenced by Dr. Finneran in
relation to the 2000 MRI.
Therefore, while the District Hearing Officer is persuaded by
the Injured Worker's testimony that he continues to
experience symptomatology, based on the 03/27/2009
report of Dr. Finneran and the 01/25/2011 report of Dr.
No. 14AP-483 13
Vogelstein there is insufficient evidence demonstrating or
explaining how the Injured Worker's symptoms and need for
injections is related to the allowed herniation in this claim.
Consequently, the Injured Worker's request for authorization
for epidural steroid injections and reactivation of this claim
is denied.
{¶ 26} 21. Claimant administratively appealed the DHO's order of April 19, 2011.
{¶ 27} 22. Following a June 7, 2011 hearing, an SHO issued an order that vacates
the DHO's order of April 19, 2011. The SHO's order explains:
The Staff Hearing Officer vacates the District Hearing
Officer's order dated 04/19/2011. The 07/19/2011 C-86
motion is granted in part and dismissed in part. The Staff
Hearing Officer grants reactivation of this claim. The Staff
Hearing Officer finds based upon Dr. Miely's report dated
03/04/2010 and his office notes dated 01/05/2010 and
12/17/2009 that the Injured Worker's current low back
complaints are causally related to his original industrial
injury. On that basis, the claim is authorized for reactivation.
However, the Staff Hearing Officer does dismiss the Injured
Worker's request for a series of lumbar epidural steroid
injections. Dismissal of this request is based upon the fact
that this request is too vague to be granted or denied. This
request per the C-86 motion does not specify a specific
number of epidural injections that are being requested. It
only states that the series of epidural injections are being
requested. This lack of specificity as to the specific number of
injections being requested caused this part of the motion to
be dismissed for vagueness.
The Staff Hearing Officer specifically notes that this order
does not authorize any type of treatment for the claim. Only
reactivation of the claim itself is authorized. If the Injured
Worker requests specific treatment for this claim, said
requests must be processed through the Self-Insured
Employer.
{¶ 28} 23. On July 1, 2011, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of June 7, 2011.
{¶ 29} 24. On September 10, 2011, the three-member commission mailed an order
denying relator's request for reconsideration of the SHO's order mailed July 1, 2011.
No. 14AP-483 14
{¶ 30} 25. On February 7, 2012, claimant moved for payment of two office visits
with William Miely, M.D., that occurred in December 2009 and January 2010, the
January 5, 2010 MRI, and the January 26, 2010 epidural steroid injection. In support,
claimant submitted Dr. Miley's office notes for the two office visits and the report of
radiologist, Eric Yeh, M.D., regarding the MRI.
{¶ 31} 26. On June 4, 2012, at relator's request, Matthew D. McDaniel, M.D.,
conducted a medical file review. In his two-page narrative report, Dr. McDaniel opined:
In my opinion, the requested 12/19/09 visit, 01/05/10 office
visit, 01/05/10 lumbar MRI study, and 01/16/10 [sic]
epidural steroid injection are not shown to be reasonably
related to the industrial injury and allowed conditions.
Again, the claim allowances resolved by 02/16/00, with the
three lumbar epidural injections, the resolution of the
compressive disc protrusion on the 02/16/00 lumbar MRI,
and the subsequent eight year treatment gap. The clinical
presentation on the 12/19/09 and 01/05/10 office visits, the
01/05/10 lumbar MRI, and the 01/16/10 [sic] lumbar
epidural injection were for non-allowed conditions.
{¶ 32} 27. Following a June 13, 2012 hearing, a DHO issued an order denying
claimant's February 7, 2012 motion. The DHO's order states reliance upon the June 4,
2012 report of Dr. McDaniel, the January 25, 2011 report of Dr. Vogelstein, and the
March 27, 2009 report of Dr. Finneran.
{¶ 33} 28. Claimant administratively appealed the June 13, 2012 order of the
DHO.
{¶ 34} 29. Following an October 1, 2012 hearing, an SHO issued an order that
vacates the DHO's order of June 13, 2012 and grants claimant's February 7, 2012 motion.
The SHO's order explains:
The C-86 motion, filed 02/07/2012, requesting payment of
office visits from Dr. Miely dated 12/17/2009 and
01/05/2010, payment of the 01/05/2010 lumbar MRI, and
payment of the 01/26/2010 epidural steroid injection under
x-ray guidance by Dr. Fitz is granted.
The Staff Hearing Officer orders the Self-Insuring Employer
to pay for the two office visits with Dr. Miely dated
12/17/2009 and 01/05/2010. Dr. Miely treated the Injured
Worker and examined the Injured Worker for radiculopathy
No. 14AP-483 15
related to the herniated disc at L5-S1. Dr. Miely also
recommended an epidural steroid injection and reviewed the
1/5/2010 lumbar MRI. According to Dr. Miely's 01/05/2010
office note, the MRI showed a recurrent disc at L5-S1 on the
left consistent with the previous injury and disc at that level.
The Staff Hearing Officer also relies upon the 01/05/2010
lumbar MRI, which diagnosed an L5-S1 disc bulge
superimposed on a central disc protrusion and which abuts
the ventral aspect of the thecal sac.
The Staff Hearing Officer also relies upon the 06/07/2011
Staff Hearing Officer order. According to the 06/07/2010
[sic] Staff Hearing Officer order, the claim was reactivated
based upon Dr. Miely's 03/04/2010 report and his
01/05/2010 and 12/17/2009 office notes. The Staff Hearing
Officer at that time found that the Injured Worker's low back
complaints were related to the industrial injury. Therefore,
Dr. Miely's 12/17/2009 and 01/05/2010 office visits are
found related to the 03/02/1999 industrial injury.
{¶ 35} 30. On October 24, 2012, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of October 1, 2012.
{¶ 36} 31. Earlier, in March 2012, Dr. Miely completed a C-9 requesting a series of
three epidural steroid injections. Apparently, the C-9 was not filed until May 3, 2012.
{¶ 37} 32. Following an October 12, 2012 hearing, a DHO issued an order granting
the C-9. The DHO's order explains:
The District Hearing Officer orders that three epidural
steroid injections be authorized and paid in accordance with
Bureau of Workers Compensation rules and regulations. This
order is based on the office notes from Dr. Miely, which
outline that this treatment is for the allowed conditions.
Each treatment issue is considered individually. While a Staff
Hearing Officer denied reactivation of the claim and
treatment in 2009, treatment was subsequently granted by
Staff Hearing Officer order. This treatment included an
epidural steroid injection given on 01/26/2010. This District
Hearing Officer is in agreement with the orders that find
treatment is related to the allowed conditions. The
06/04/2012 report from Dr. McDaniel was rejected by the
Staff Hearing Officer on 10/02/2012 and, therefore, cannot
be relied on.
No. 14AP-483 16
{¶ 38} 33. Relator administratively appealed the DHO's order of October 12, 2012.
{¶ 39} 34. Following a November 26, 2012 hearing, an SHO issued an order
affirming the October 12, 2012 DHO's order. The SHO's order explains:
Authorization is granted for a series of three epidural steroid
injections for treatment of the allowed conditions.
This order is based upon a finding that the requested medical
services are related and necessary for treatment of the
allowed conditions. This finding is based upon the office
notes from Dr. Miely dated February 28, 2012.
In reaching this decision, all evidence pertinent to this issue
was thoroughly reviewed. However, the report from Dr.
McDaniel dated June 4, 2012 was not considered because it
was implicitly rejected by the Staff Hearing Officer at the
hearing held on October 1, 2012. The Staff Hearing Officer
vacated the District Hearing Officer's order dated June 13,
2012, which had relied upon Dr. McDaniel's report. By
vacating the order, and issuing a decision contrary to the
opinion of Dr. McDaniel, the Staff Hearing Officer rejected
the report of Dr. McDaniel on the issue of the need for
treatment, particularly whether epidural steroid injections
were related and necessary for treatment of the allowed
conditions. Case law precludes later consideration of the
same report that was previously considered by the Industrial
Commission and implicitly rejected as evidence. See State
ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d
17.
(Emphasis sic.)
{¶ 40} 35. On December 18, 2012, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of November 26, 2012.
{¶ 41} 36. On August 28, 2013, Dr. Miely completed a C-9 requesting a lumbar
MRI and follow-up visit with Dr. Miely. On August 27, 2013, the day before he completed
the C-9, Dr. Miely wrote:
History: He returns today. He is still having significant
weakness in his left leg with marked calf atrophy.
Plan: We discussed with him options. He would like to have
an MRI to take a look at that.
No. 14AP-483 17
{¶ 42} 37. The August 28, 2013 C-9 was not filed until December 27, 2013.
{¶ 43} 38. Following a March 12, 2014 hearing, a DHO issued an order granting
the C-9. The DHO's order explains:
Authorization is granted for a lumbar MRI, as requested by
Dr. Miely. The District Hearing Officer finds that the Injured
Worker has met his burden of proving that the requested
diagnostic testing at issue is medically necessary, reasonable,
and appropriate for the treatment of the allowed conditions
in the claim. The District Hearing Officer relies upon the C-9
Request of Dr. Miely dated 08/28/2013, the medical report
of Dr. Miely dated 08/27/2013, and the treatment notes of
Dr. Miely on file.
{¶ 44} 39. Relator administratively appealed the DHO's order of March 12, 2014.
{¶ 45} 40. Following an April 29, 2014 hearing, an SHO issued an order affirming
the DHO's order of March 12, 2014. The SHO's order explains:
The Staff Hearing Officer agrees with the reasoning and
decision of the District Hearing Officer in granting the
request for authorization for a lumbar MRI on a diagnostic
basis within Industrial Commission/Bureau of Workers'
Compensation rules and regulations and usual, customary
and reasonable fee guidelines based on the 08/28/2013 C-9,
office notes and 08/27/2013 report of Dr. Miely. The Staff
Hearing Officer also finds that this request is medically
related to and reasonable and necessary for investigation
into the consequences of the 03/02/1999 incident and care
of the allowed conditions recognized in the claim.
{¶ 46} 40. On May 21, 2014, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of April 29, 2014.
{¶ 47} 41. On June 17, 2014, relator, The Columbus Distributing Co., filed this
mandamus action.
Conclusions of Law:
{¶ 48} On July 19, 2010, claimant moved for claim reactivation and for
authorization of a series of epidural steroid injections prescribed by Dr. Miely. At issue
here is the SHO's order of June 7, 2011 that grants claim reactivation, but denies
authorization of the epidural steroid injections. Essentially, relator contends that the
No. 14AP-483 18
commission lacked authority to grant claim reactivation because the request for medical
treatment was denied.
{¶ 49} Relator contends that the alleged error in granting claim reactivation
subsequently caused the commission to err in its granting of three separate requests for
payment of medical treatment.
{¶ 50} The first request was claimant's February 7, 2012 motion for the payment of
two office visits, the January 5, 2010 MRI and the January 26, 2010 epidural steroid
injection. The second request was the May 2012 C-9 requesting a series of three epidural
steroid injections. The third request was the August 28, 2013 C-9 requesting a lumbar
MRI and a follow-up with Dr. Miely.
{¶ 51} Thus, based upon its argument that claim reactivation was improper, relator
contends that the writ must order the commission to not only vacate the SHO's order of
June 7, 2011, but also the SHO's orders of October 1, 2012, November 26, 2012, and
April 29, 2014.
{¶ 52} The magistrate disagrees with relator's challenge to the SHO's order of
June 7, 2011 as well as its challenge to the SHO's orders of October 1, 2012, November 26,
2012, and April 29, 2014. Accordingly, it is the magistrate's decision that this court deny
relator's request for a writ of mandamus, as more fully explained below.
{¶ 53} Parenthetically, the magistrate notes that, in a prior mandamus action, this
court held the action to be premature, and on that basis, denied the writ. The earlier
action was found to be premature because the commission had not yet ruled adversely to
relator upon the requests for medical treatment filed subsequent to the SHO's order of
June 7, 2011. Thus, relator could not show a loss or deprivation resulting from the
issuance of the SHO's order of June 7, 2011. State ex rel. Columbus Distributing Co. v.
Williams, 10th Dist. No. 12AP-494 (June 27, 2013, Memorandum Decision.)
{¶ 54} Preliminarily, the magistrate shall address the concept of claim reactivation.
{¶ 55} Effective July 16, 1990, former Ohio Adm.Code 4123-3-15 provided:
(B) Applications to reactivate claims.
(1) Except as provided in paragraph (C) of this rule, form C-
85-A, "Application to Reactivate Claim," shall be used in the
following situations:
No. 14AP-483 19
***
(b) Where the course of medical treatment has been
completed, the physician of record having indicated that no
further treatment was necessary, and subsequently the
employee seeks additional medical treatment; or
***
(e) Where the claim is not in the course of consideration by
the bureau or commission and, therefore, classed as inactive;
in order to determine whether a claim should be regarded as
"inactive," the following guidelines should be taken into
consideration:
(i) The period of time which has elapsed since the last
activity in the claim; as a general rule, a claim is considered
inactive if there was no activity or request for further action
in the claim within a period of time in excess of two ears;
(ii) The nature and type of injury or occupational disease;
(iii) Did the attending physician report recovery from the
effect of the allowed condition or conditions with no
evidence of a resulting disability.
***
(2) Such applications shall be accompanied by the proof
upon which the employee relies.
***
(4) Such application shall be completed by the attending
physician in those cases where additional compensation or
additional medical services are sought.
(5) The bureau or commission may require the filing of
additional proof or legal citations by either party or may
make such investigation or inquiry as the circumstances may
require.
***
(7) Such applications shall be determined with or without
formal (public) hearing as the circumstances presented
require. If the request made in the application is within the
No. 14AP-483 20
jurisdiction of the bureau and the matter is not contested or
disputed, the bureau shall adjudicate the application in the
usual manner. In all other cases, the application shall be
acted upon by the industrial commission's hearing officer or
as otherwise required by the rules of the commission,
depending on the subject matter at issue.
{¶ 56} Effective November 1, 2004, Ohio Adm.Code 4123-3-15 was substantially
amended. It was further amended effective February 10, 2009.
{¶ 57} On the date that claimant moved for claim reactivation and authorization of
a series of epidural steroid injections, i.e., on July 19, 2010, former Ohio Adm.Code 4123-
3-15 stated:
(A) Requests for subsequent actions when a state fund claim
has not had activity or a request for further action within a
period of time in excess of thirteen months.
(1) The bureau shall consider a request for subsequent action
in a claim in the following situations:
(b) Where the employee seeks to have the bureau or
commission grant a new award of compensation or to settle
the claim * * *
(e) * * * [T]he bureau, in consultation with the MCO assigned
to the claim, shall issue an order on a medical treatment
reimbursement request in a claim which has not had activity
or a request for further action within a period of time in
excess of thirteen months as follows:
(i) * * * The bureau's order shall address both the causal
relationship between the original injury and the current
incident precipitating the medical treatment reimbursement
request in a claim and the necessity and the appropriateness
of the requested treatment.
***
(4) The bureau or commission may require the filing of
additional proof or legal citations by either party or may
make such investigation or inquiry as the circumstances may
require.
***
No. 14AP-483 21
(6) Such requests shall be determined with or without formal
(public) hearing as the circumstances presented require. If
the request is within the jurisdiction of the bureau and the
matter is not contested or disputed, the bureau shall
adjudicate the request in the usual manner. In all other
cases, the request shall be acted upon by the industrial
commission's hearing officer or as otherwise required by the
rules of the commission, depending on the subject matter.
{¶ 58} According to relator, the June 7, 2011 SHO "exceeded the scope of his
jurisdiction" when he reactivated the claim in the absence of granting a specific benefit.
(Reply brief, 3.) According to relator, "[w]ithout authorization of any treatment — a
substantive benefit — there was nothing in the claim to reactivate." (Emphasis sic.)
(Reply brief, 3.)
{¶ 59} Relator also contends that claim reactivation violated "[d]ue process" in the
absence of granting a specific benefit. (Reply brief, 5.) Relator also posits that the
"request for reactivation of his claim cannot be separated from his request for treatment."
(Reply brief, 2.) Relator states "[n]o version of Ohio Admin. Code 4123-3-15 supports
what the Commission claims." (Reply brief, 2.)
{¶ 60} Other than a mere citation to Ohio Adm.Code 4123-3-15, relator cites to no
relevant authority to support its position on "jurisdiction" or "[d]ue process."
{¶ 61} Here, respondent commission endeavors to answer relator's challenge by
analyzing former Ohio Adm.Code 4123-3-15:
Here, in compliance with the code, the commission
determined the appropriateness of additional treatment,
even if specific treatment could not be addressed until
Williams clarified his request for it. Williams moved, via a C-
86 motion, to reactivate his claim and submitted the
requisite proof, in accordance with the code requirements.
As the SHO found, Dr. Miely's treatment notes, his letter
explaining why epidural steroid injections were requested,
and the January 2010 MRI were sufficient to explain that the
recurrence of Williams' disc herniation warranted further
medical treatment. * * * Thus, the commission's June 7, 2011
order is supported by evidence establishing the
appropriateness of additional treatment in Williams' claim.
Regarding the specific treatment requested, the commission
acted within its discretion to defer adjudication of that
No. 14AP-483 22
portion of Williams' motion. Significantly, Ohio Adm.Code
4123-3-15(B)(5) specifies that the commission may require
the parties to file additional proof, or may make further
inquiry or investigation as is required. As the SHO explained,
Williams' medical proof established that his current low back
symptoms established a recurrence of his work-related disc
herniation, thereby warranting claim reactivation. However,
the SHO dismissed as vague the specific treatment request
because it did not specify the number of injections Dr. Miely
planned to perform. Contrary to CDC's argument, the SHO
acted in accordance with the code in requesting clarification
for the treatment request before granting that portion of
Williams' motion. Thus, the commission acted within its
discretion to adjudicate the appropriateness of the medical
treatment due to recurrence of the disc herniation, even if it
did not immediately grant the specific treatment requested.
***
By means of his C-86 motion, Williams placed two issues
before the commission: reactivation of the claim for
recurrence of the allowed disc herniation at L5-S1 and
authorization of medical treatment for that condition in the
form of a series of epidural steroid injections. * * * In its
June 7, 2011 order, the commission acted within its
discretion to grant reactivation of Williams' claim, but
dismiss the portion of his request related to the
authorization of medical treatment as too vague. * * *
Notably, at all levels of commission hearings, the hearing
officers considered Williams' requests both for claim
reactivation and a series of epidural steroid injections. * * *
CDC is incorrect that the sole issue before the commission
was whether Williams could receive authorization for
medical treatment or that jurisdiction was limited to solely
that question. The SHO first considered the threshold
question of whether claim reactivation was appropriate, and
then proceed to the merits of the treatment request, but
found the request too vague. If the SHO were to have found
against claim reactivation, he necessarily would have had to
deny the treatment request because the claim would have
been medically inactive. In contrast, a claim can be active,
even if there are no currently allowed treatment requests.
Thus, the SHO did not divest the commission of jurisdiction
by finding the medical treatment request too vague.
(Respondent Industrial Commission's brief, 11-13, 16-17.)
No. 14AP-483 23
{¶ 62} In the magistrate's view, the commission's analysis of former Ohio
Adm.Code 4123-3-15 as it applies here is reasonable. Significantly, relator fails to
challenge the commission's analysis with any specific interpretation of its own.
{¶ 63} The issue here does not give rise to an occasion for the magistrate to
reinterpret the commission's interpretation of former Ohio Adm.Code 4123-3-15. The
commission's interpretation of its own rules is entitled to due deference from this court.
State ex rel. Schaengold v. Pub. Emp. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-
3760, ¶ 23.
{¶ 64} 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).