[Cite as State ex rel. Carlisle Brake & Friction v. Codney, 2016-Ohio-7866.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Carlisle Brake & Friction :
(Friction Products Co.),
:
Relator,
: No. 15AP-1006
v.
: (REGULAR CALENDAR)
Joseph R. Codney, Sr.
and Industrial Commission of Ohio, :
Respondents. :
DECISION
Rendered on November 22, 2016
On brief: Roetzel & Andress, Robert E. Blackham,
Timothy J. Webster, and Marcus A. Pringle, for relator.
On brief: Michael DeWine, Attorney General, and John R.
Smart, for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Carlisle Brake & Friction (Friction Products Co.) ("Carlisle"),
initiated this original action requesting a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to vacate the April 6, 2015 order of its
staff hearing officer ("SHO") that grants the form C-9 request for "TENS unit" medical
supplies filed by respondent Joseph R. Codney, Sr. on January 7, 2015, and to enter an
order denying that 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 issued the appended decision,
No. 15AP-1006 2
which includes findings of fact and conclusions of law. The magistrate concluded that the
commission did not abuse its discretion in granting Codney's form C-9 request to receive
TENS unit medical supplies because the form C-9 itself provides some evidence in
support of the order. Thus, the magistrate recommends this court deny Carlisle's request
for a writ of mandamus.
{¶ 3} Carlisle has filed the following objection to the magistrate's decision:
The Magistrate's reliance on the December 20, 2014, C-9 as
constituting "some evidence" supporting the April 6, 2015,
order is misplaced.
{¶ 4} Carlisle's objection lacks merit. In order for this court to issue a writ of
mandamus as a remedy from a determination of the commission, the relator must show a
clear legal right to the relief sought, the commission has a clear legal duty to provide such
relief, and there is no plain and adequate remedy in the ordinary course of the law. State
ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). However, where the record contains
some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987).
{¶ 5} The form C-9 that Codney submitted on January 7, 2015, was completed by
physician David Krahe, D.O., on October 20, 2014,1 and seeks reimbursement for the
requested TENS unit medical supplies. At issue is whether that form, standing alone,
constitutes some evidence in support of the SHO's order granting Codney's request for
authorization to receive those supplies.
{¶ 6} This court recently determined that a completed form C-9 constitutes a
physician's certification and medical opinion that the requested services are reasonably
related to the allowed conditions identified on the form and reasonably necessary for
treatment of those conditions. State ex rel. Cooper Tire & Rubber Co. v. Bowers, 10th
1The magistrate's decision states that this form C-9 was completed on December 20, 2014, but it was
actually completed on October 20, 2014.
No. 15AP-1006 3
Dist. No. 14AP-331, 2015-Ohio-2240, ¶ 53-54. Although form C-9 does not include an
express statement of this relation and necessity, such findings are implicit in a completed
form C-9 identifying the allowed conditions as the basis for the request. See Bowers at
¶ 53. Here, Dr. Krahe listed within the "treating diagnosis" section of the form C-9 the
ICD-9 code numbers that correspond to the allowed conditions. Thus, the form C-9
reflects Dr. Krahe's certification and medical opinion that the requested medical supplies
are reasonably necessary and related to the allowed conditions of the claim. See id.
Consistent with this court's decision in Bowers, we agree with the magistrate's
determination that the form C-9 that Dr. Krahe completed, standing alone, provides some
evidence in support of the SHO's order. Therefore, we find Carlisle's objection to the
magistrate's decision to be meritless.
{¶ 7} Following our independent review of the record pursuant to Civ.R. 53, we
find the magistrate correctly determined that Carlisle is not entitled to the requested writ
of mandamus. The magistrate properly determined the facts and applied the pertinent
law to the salient facts. Therefore, we adopt the magistrate's decision as our own,
including the findings of fact (with the typographical correction noted above) and
conclusions of law contained therein. Accordingly, we overrule Carlisle's objection to the
magistrate's decision and deny its request for a writ of mandamus.
Objection overruled;
writ of mandamus denied.
TYACK and KLATT, JJ., concur.
No. 15AP-1006 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Carlisle Brake & Friction :
(Friction Products Co.)
:
Relator,
:
v. No. 15AP-1006
:
Joseph R. Codney, Sr. (REGULAR CALENDAR)
and :
Industrial Commission of Ohio,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on July 25, 2016
Roetzel & Andress, Robert E. Blackham, Timothy J. Webster,
and Marcus A. Pringle, for relator.
Michael DeWine, Attorney General, and John R. Smart, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 8} In this original action, relator, Carlisle Brake & Friction (Friction Products
Co.) (hereinafter relator or Carlisle), requests a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission"), to vacate the April 6, 2015 order of its
staff hearing officer ("SHO") that grants the January 7, 2015 motion and C-9 request for
authorization of TENS unit supplies that was filed by respondent, Joseph R. Codney, Sr.
("claimant"), and to enter an order denying claimant's January 7, 2015 motion.
No. 15AP-1006 5
Findings of Fact:
{¶ 9} 1. On July 29, 2005, claimant sustained an industrial injury while
employed as a machine operator for relator, a self-insured employer under Ohio's
workers' compensation laws. Claimant reports that he was injured while putting plates
on a table. He lost control of one of the plates and grabbed it with his right arm to avoid
falling.
{¶ 10} 2. The industrial claim (No. 05-900881) is allowed for "impingement
syndrome right shoulder; sprain/strain right trapezius muscle; neck sprain; thoracic
sprain."
{¶ 11} 3. On June 23, 2014, treating physician David Krahe, D.O., completed a C-
9 on which he requested authorization for TENS unit supplies and two leads once a
month for six months.
{¶ 12} 4. Dr. Krahe's June 23, 2014 C-9 prompted relator to request an
examination by Ira J. Ungar, M.D.
{¶ 13} 5. Following an August 13, 2014 examination, Dr. Ungar issued a five-
page narrative report dated August 20, 2014, in which he opined:
Mr. Codney has been using a TENS unit over nearly one
decade and suggests that it helps modify his symptoms and
reduce his use of medication.
It is unusual that a TENS unit would be used for the allowed
condition in this claim of trapezius muscle sprain, which is a
self-limited soft-tissue condition or impingement syndrome,
which is an activity related impingement of the rotator cuff.
In general, if the arms are not used above chest level,
impingement of the rotator cuff, when there are only mild
findings on MRI, would be unlikely to cause ongoing
symptomatology. In this way, a TENS unit is not
supportable.
Additionally and most notably, with reference to the Official
Disability Guidelines in the shoulder subsection under
transcutaneous electrical nerve stimulation, it is noted that a
use of a TENS unit is not supported by high quality medical
studies for use in chronic shoulder symptoms. It is suggested
only for initial conservative treatment of acute shoulder
symptoms.
No. 15AP-1006 6
Therefore, based on the rationale as given above, with
reference to the Official Disability Guidelines, there is no
support for continued use of a TENS unit for the conditions
that are allowed in this claim.
(Emphasis sic.)
{¶ 14} 6. By letter dated September 3, 2014, relator's third-party administrator,
Spooner Incorporated, informed claimant that the C-9 was being denied based upon Dr.
Ungar's report.
{¶ 15} 7. On December 12, 2014, Dr. Krahe wrote:
Joseph is a long standing patient who has a chronic rotator
cuff tendinopathy that has been treated in the past with a
tens unit with excellent results. He is in need of continued
treatment with the unit and the appropriate pads.
{¶ 16} 8. On December 20, 2014, Dr. Krahe completed another C-9 on which
authorization was requested for "[TENS] Unit Electrodes and Pads" for a period of six
months.
{¶ 17} 9. The parties agree that the December 20, 2014 C-9 correctly lists the
ICD-9 code numbers that correspond to the allowed conditions of the claim. Those code
numbers and their corresponding conditions are (726.2) right impingement syndrome;
(840.8) right trapezius muscle sprain; (847.0) neck sprain; (847.1) sprain thoracic
region. No other ICD-9 code numbers are listed other than the ICD-9 codes that
correspond to the allowed conditions of the claim.
{¶ 18} 10. On January 7, 2015, on form C-86, claimant moved for authorization
of "[TENS] unit and pads." In support, claimant cited to the "C9 and report from Dr.
David H. Krahe."
{¶ 19} 11. Following a February 23, 2015 hearing, a district hearing officer
("DHO") issued an order granting claimant's January 7, 2015 motion. The DHO
explained:
It is ordered that the C-9 Request for Treatment filed
1/7/2015 for TENS unit supplies is granted according to the
Bureau of Workers' Compensation guidelines.
No. 15AP-1006 7
It has been established that the requested treatment is
necessary for treatment of the allowed conditions in this
claim. The Injured Worker testified that the TENS unit is
very effective and helps to alleviate the pain in his shoulder.
This finding is based upon the office note of David Krahe,
D.O., dated 12/12/2014.
All the evidence available to the Industrial Commission was
reviewed and considered in rendering this decision.
{¶ 20} 12. Relator administratively appealed the DHO's order of
February 23, 2015.
{¶ 21} 13. Following an April 6, 2015 hearing, an SHO issued an order affirming
the February 23, 2015 order of the DHO. The SHO's order of April 6, 2015 explains:
The C-9 Request for Medical Service Reimbursement or
Recommendation for Additional Conditions for Industrial
Injury or Occupational Disease, filed by the Injured Worker
on 01/07/2015, requesting TENS unit supplies, is granted to
the extent of this order.
Based on the medical documentation in file from David
Krahe, D.O., dated 12/12/2014, and the Injured Worker's
testimony at hearing concerning the benefit he gets from the
TENS unit and the fact that he is unable to take pain
medications that the Injured Worker is granted the
authorization to receive the requested TENS unit supplies.
Said supplies are to be authorized for a six month period.
{¶ 22} 14. On April 30, 2015, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of April 6, 2015.
{¶ 23} 15. On November 2, 2016, relator filed this mandamus action.
Conclusions of Law:
{¶ 24} The SHO's order of April 6, 2015 grants the request for TENS unit supplies
based upon the C-9 itself, the December 12, 2014 note from Dr. Krahe, and claimant's
hearing testimony. Undisputedly, Dr. Krahe's office note identifies a non-allowed
condition, i.e., "chronic rotator cuff tendinopathy" that has been treated in the past with
a TENS unit.
No. 15AP-1006 8
{¶ 25} The C-9 does not identify a non-allowed condition, but does correctly
identify all the allowed conditions in the claim.
{¶ 26} Accordingly, the issue here is whether the C-9 itself is some evidence
supporting the SHO's order notwithstanding the SHO's reliance upon Dr. Krahe's
December 12, 2014 note that identifies a non-allowed condition.
{¶ 27} A claimant must always show the existence of a direct and proximate causal
relationship between his or her industrial injury and the claimed disability. State ex rel.
Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). Non-allowed medical conditions
cannot be used to advance or defeat a claim for compensation. Id. The mere presence
of a non-allowed condition in a claim for compensation does not, in itself, destroy the
compensability of the claim, but the claimant must meet his burden of showing that an
allowed condition independently caused the disability. State ex rel. Bradley v. Indus.
Comm., 77 Ohio St.3d 239 (1997).
{¶ 28} While it is undisputed that "chronic rotator cuff tendinopathy" is a non-
allowed condition, Bradley tells us that the mere presence of this non-allowed condition
does not, in itself, destroy the compensability of the claim.
{¶ 29} Here, the allowed conditions in the claim identified by Dr. Krahe in his
December 20, 2014 C-9 can be independently causing a need for a TENS unit while the
non-allowed rotator cuff condition also benefits from the TENS unit.
{¶ 30} Given the above analysis, the magistrate concludes that the C-9 request
itself provides the some evidence supporting the April 6, 2015 order of the SHO who
granted the C-9 request for authorization of TENS unit supplies. See State ex rel.
Cooper Tire & Rubber Co. v. Bowers, 10th Dist. No. 14AP-331, 2015-Ohio-2240.
{¶ 31} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
No. 15AP-1006 9
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).