Opinion
No. 98AP-1329.
Rendered on September 30, 1999.
Ben Sheerer Law Offices, and Harry Zerebniak, for relator.
Betty D. Montgomery, Attorney General, and William J. McDonald, for respondent Industrial Commission of Ohio.
IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION MEMORANDUM DECISION
Relator, Harold Head, commenced this original action requesting a writ of mandamus which orders respondent Industrial Commission of Ohio to vacate its order denying him R.C. 4123.56(B) wage loss compensation, and to enter an order granting said compensation.
Pursuant to Civ.R. 53 and Section M, Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. In his decision, the magistrate concluded that the commission's order states a valid basis supported by some evidence.
Specifically, the magistrate noted that the commission's stated basis for denying wage loss compensation is its finding that relator failed to present medical evidence showing that his lower paying job beginning March 30, 1994, was related to his industrial injury. To support its finding, the commission explained that the beginning date for Dr. Steurer's restrictions is April 11, 1994, a date subsequent to the start of relator's employment as a telemarketer.
Further, the magistrate concluded that relator's attempt to remedy the evidentiary problem with Dr. Steurer's report by submitting an amended version with his administrative appeal did not compel the commission to review the amended report. Rather, the commission, within the exercise of its discretion, could refuse to hear relator's administrative appeal. Accordingly, the magistrate decided the requested writ should be denied.
Relator has filed an objection to the magistrate's decision, rearguing those matters adequately addressed in the decision. For the reasons set forth in the magistrate's decision, the objection is overruled.
Following independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, the requested writ is denied.
Objection overruled; writ denied.
BROWN, J., concurs.
TYACK, J., dissents.
I respectfully dissent.
Harold Head was employed as a laborer/floater when he suffered significant injuries to both knees. Approximately three years later he began a new job as a telemarketer. He then applied for wage loss compensation.
When Mr. Head applied for wage loss compensation, he appended a form from his treating physician which indicated that Mr. Head was restricted in his ability to perform his former job. The physician then wrote a date for beginning the restrictions which is less than two weeks after Mr. Head began the telemarketing job. The physician's office later provided an amended physician's report of work restrictions with a date for the beginning of work restrictions indicated as being the same date as the telemarketing job began. Both reports list Mr. Head as suffering from tenderness and crepitation of the left knee based upon an examination conducted approximately four weeks after the new job began.
The record also contains a report from a specialist for the Industrial Commission who examined Mr. Head six months before the telemarketing job began. The commission specialist reported a decrease in range of motion in both knees, along with "decrepitus * * * tenderness and * * * left knee effusion." The commission specialist then reported that Mr. Head had reached maximum improvement and that Mr. Head suffered from a six percent impairment of the whole person due to the allowed knee condition.
As best I can tell, the commission lost sight of the forest because of the trees when it comes to the issue of Mr. Head's entitlement to wage loss compensation. He was working as a laborer/floater when he was injured. In September of 1993, he reported that his activities of daily living were restricted and that he could no longer do the same amount of walking, standing, climbing stairs and other movements of the knee as before. Six months later, he took a sedentary job which paid him less. His treating physician's office did a sloppy job of filling out the handwritten form about his work restrictions and then did not create a more complete report to point out in more detail that no intervening injuries had occurred and that Mr. Head's limitations had been consistent at least since the commission specialist had found him to have reached maximum medical improvement.
I believe the commission abused its discretion in failing to award wage loss compensation to Mr. Head from the date he began his telemarketing job. I would grant him a writ of mandamus. Since the majority does not, I respectfully dissent.