[Cite as State ex rel. Staples The Office Superstore E., Inc. v. Indus. Comm., 2013-Ohio-4339.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Staples The Office                        :
Superstore East, Inc.,
                                                        :
                 Relator,
                                                        :                         No. 12AP-879
v.
                                                        :                   (REGULAR CALENDAR)
Industrial Commission of Ohio and
Donna Boyd-Shawver,                                     :

                 Respondents.                           :




                                            D E C I S I O N

                                   Rendered on September 30, 2013


                 Dawson Disantis & Myers, LLC, Shane M. Dawson and
                 Paul V. Disantis, for relator.

                 Michael DeWine, Attorney General, and Justine S. Casselle,
                 for respondent Industrial Commission of Ohio.

                 Larrimer & Larrimer, and Thomas L. Reitz, for respondent
                 Donna Boyd-Shawver.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, P.J.
        {¶ 1} Relator, Staples the Office Superstore East, Inc., commenced this original
action in mandamus seeking an order compelling respondent, Industrial Commission of
Ohio ("commission"), to vacate its order granting respondent, Donna Boyd-Shawver
("claimant"), temporary total disability ("TTD") compensation beginning November 29,
2011, and to enter an order denying said compensation.
No. 12AP-879                                                                            2

       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found that: (1)
the commission's reliance on the November 23, 2011 report of Dr. Cummings is foreclosed
because it is based in part on a non-allowed low back condition; (2) Dr. Cummings'
progress reports mandate evidentiary elimination of his C-84s and MEDCO-14s; and (3) a
portion of the award cannot be saved by the commission's reliance on the report of Dr.
Berlet. Therefore, the magistrate has recommended that we grant relator's request for a
writ of mandamus.
       {¶ 3} The commission has filed objections to the magistrate's decision.        The
commission first asserts that the magistrate erred in concluding that the commission
relied on the claimant's low back pain in granting TTD compensation. We disagree.
       {¶ 4} As noted by the magistrate, a newly-identified condition that may be related
to an industrial injury must be formerly recognized in the claim if that condition is to
become a basis for compensation. State ex rel. Jackson Tube Serv., Inc. v. Indus Comm.,
99 Ohio St.3d 1, 2003-Ohio-2259. Here, the commission relied upon Dr. Cummings'
reports in granting TTD. Dr. Cummings' reports strongly suggest that the claimant's low
back pain was a factor in reaching his opinion that the claimant needed a seated-only
work restriction. Dr. Cummings makes a number of references to problems the claimant
was experiencing with her lumbar spine, including pain on movement, limited motion,
and tenderness to palpation. In his November 23, 2011 narrative report following his
examination of the claimant, he stated that:
              Also, due to the amount of standing and walking Donna is
              required to do, in spite of her restrictions, she has developed
              low back pain as documented above. Due to Donna's
              progressive pain symptoms, she will be restricted to a seated
              job assignment.

       {¶ 5} These portions of Dr. Cummings' report strongly suggest that claimant's low
back pain was part of the basis for his imposition of the work restriction. Although Dr.
Cummings' reports indicate that there is a causal relationship between the claimant's
allowed claim ("left fibula fracture; peroneal tendonitis, left side") and her low back
symptoms, there is no allowed claim for any condition involving the claimant's lower
No. 12AP-879                                                                            3

back. Therefore, Dr. Cummings does not clearly indicate that the seated work restriction
was solely based upon the allowed conditions in the claim. Therefore, the commission
abused its discretion by relying on Dr. Cummings' opinion in awarding TTD
compensation.
       {¶ 6} The commission also argues that the lower back pain noted by Dr.
Cummings is not a recognized compensable injury. According to the commission, simply
because Dr. Cummings noted the claimant's lower back pain, does not indicate that the
allowed ankle conditions were not the sole basis for the work restriction. Again, we
disagree.
       {¶ 7} Although Dr. Cummings does refer to lower back pain, that reference must
be viewed in the context of his physical examinations where he noted the problems with
claimant's lumbar spine, including limited motion and tenderness to palpation. His
examination notes are strongly indicative of a lower back injury. Because the claimant did
not have an allowed claim based upon a lower back injury, we overrule the commission's
first objection.
       {¶ 8} In its second objection, the commission contends that none of Dr.
Cummings' C-84s or MEDCO-14s list any cause for disability other than the allowed
conditions, and thus, they do not contradict Dr. Cummings' ultimate conclusion.
Therefore, the commission argues that the magistrate erred in concluding that the C-84s
and MEDCO-14s should be eliminated from evidentiary consideration.             Again, we
disagree.
       {¶ 9} Although the mere presence of a non-allowed condition in a claim for TTD
compensation does not in itself destroy the compensability of the claim, the claimant
must meet her burden of showing that an allowed condition independently caused the
disability. State ex rel. Bradley v. Indus. Comm., 77 Ohio St.3d 239, 242 (1997). Medical
reports can be so inconsistent that they cannot constitute some evidence supporting a
commission's decision. State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445 (1994);
State ex rel. M. Weingold & Co. v. Indus. Comm., 97 Ohio St.3d 44, 2002-Ohio-5353.
       {¶ 10} To the extent that Dr. Cummings' C-84s and MEDCO-14s indicate that the
claimant's allowed claims independently caused the need for the seated restriction, they
conflict with his November 23, 2011 examination and progress report in which the low
No. 12AP-879                                                                               4

back pain is identified as at least a contributing factor for imposing the seated job
restriction. There is no allowed condition relating to the claimant's lower back. For this
reason, we overrule the commission's second objection.
       {¶ 11} In its third and final objection, the commission contends that the magistrate
erred in concluding that Dr. Berlet's opinion is insufficient evidence to support the
commission's decision. The commission's first argument in support of this objection is
that relator waived any argument that Dr. Berlet's opinion was insufficient because he
failed to file a C-84 or a MEDCO-14. However, the commission mischaracterizes the
magistrate's reasoning in arguing that relator failed to make this argument
administratively. The magistrate's reasoning is not premised on Dr. Berlet's failure to
specifically submit a C-84 or MEDCO-14 form. Rather, the magistrate concluded that Dr.
Berlet's opinion is not some evidence because (1) he did not offer an opinion as to the
claimant's extent of disability that is retrospective of the date of his examination; and (2)
he failed to offer an estimated return-to-work date or to prospectively opine as to the
estimated duration of the disability. Relator did argue administratively and before the
magistrate that Dr. Berlet's opinion is not some evidence supporting an award of TTD.
Therefore, we disagree with the commission's contention that relator waived this
challenge to Dr. Berlet's opinion.
       {¶ 12} The commission also argues that Dr. Berlet's February 20, 2012 treatment
note supports his opinion that claimant is TTD until, at least, she receives a new brace and
until, at most, revision surgery is performed on her left ankle. Although Dr. Berlet does
suggest a general timeframe of disability in his February 20, 2011 report, we agree with
the magistrate that his failure to opine as to a specific period of disability renders this
report insufficient to support an award of TTD.
       {¶ 13} Lastly, the commission points to Dr. Berlet's April 3, 2012 report as
evidence that Dr. Berlet did specify a definite prospective period of disability. However,
the commission did not rely on this report in awarding TTD. Because the commission did
not rely on this report, there was no reason for the magistrate to address it. Moreover, we
note that the April 3, 2012 report references only a perspective period of disability
following revision surgery, which had not yet been performed or even scheduled.
Therefore, the November 3, 2012 report could not serve as an independent basis to
No. 12AP-879                                                                             5

support the commission's grant of TTD in any event. For these reasons, we overrule the
commission's last objection.
       {¶ 14} The claimant also filed objections to the magistrate's decision. In her first
objection, the claimant contends that the magistrate erred in concluding that Dr.
Cummings' physical restrictions were based on the non-allowed low back pain.
Essentially, the claimant argues that low back pain was a secondary problem, not her
primary complaint, and not the basis for the restrictions imposed by Dr. Cummings. For
the reasons noted in response to the commission's first objection, we disagree. A fair
reading of Dr. Cummings' November 23, 2011 report indicates that the restrictions he
imposed were based in part on pain she was experiencing in her lower back. Therefore,
Dr. Cummings' November 23, 2011 report does not establish that he imposed the seated
work restriction based solely on the allowed conditions in the claim. Therefore, we
overrule the claimant's first objection.
       {¶ 15} In her second objection, the claimant contends that the magistrate erred in
finding Dr. Cummings' certification of TTD is inconsistent with his medical examinations.
We overrule this objection for the same reason that we overruled the commission's second
objection. Dr. Cummings' various reports are inconsistent and cannot serve as some
evidence to support the commission's grant of TTD.
       {¶ 16} In her third and final objection, the claimant contends that the magistrate
erred in concluding that Dr. Berlet's opinion is not some evidence supporting the
commission's decision to award TTD. The claimant argues that Dr. Berlet's February 20,
2012 report directly linked the C-84 signed by Dr. Cummings on November 23, 2011 with
his opinion that the claimant's restriction was caused solely by the allowed conditions.
However, as we previously noted, Dr. Berlet's failure to opine as to a specific period of
disability in his February 20, 2012 report renders his opinion insufficient to support an
award of TTD. Therefore, we overrule the claimant's third objection.
       {¶ 17} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein.    In accordance with the magistrate's decision, we grant relator's
request for a writ of mandamus ordering the commission to vacate the award of TTD
No. 12AP-879                                                                               6

beginning November 29, 2011 and to enter an order that denies the request for TTD
compensation.
                                        Objections overruled; writ of mandamus granted.

                                  O'GRADY, J., concurs.
                                   TYACK, J., dissents.

TYACK, J., dissenting.
       {¶ 18} I strongly disagree with our magistrate and the majority of this panel.
Instead, I agree with the view of the hearing officers at the Industrial Commission that
Donna Boyd-Shawver is entitled to temporary total disability compensation ("TTD").
       {¶ 19} Everyone agrees that Donna Boyd-Shawver cannot go back to her old job
which required her to be on her feet for seven hours per day. The fracture of her left fibula
and peroneal tendonitis which she suffered in 2009 have made that so. The pain she
suffered when she put her weight on her left side caused her to try to avoid putting weight
on that side. As a result, she started having problems on her right side and low back.
       {¶ 20} Staples refused Donna's request for surgery to remedy her pain and referred
her for an independent medical examination ("IME") by John S. Wolfe, M.D. Dr. Wolfe
found peroneal tendonitis, which is an inflammation of the tendons attached to or near
the fibula. This condition has now been recognized. Dr. Wolfe agreed that Donna could
not stand for more than two to four hours per day based upon her peroneal tendonitis.
Staples did not offer her a job where she could sit. Thus, based on the IME requested by
Staples, Donna was entitled to TTD. She could not work at her old job based solely upon a
recognized condition.
       {¶ 21} This IME should have ended discussion of the issue of TTD, but Staples is a
self-insured employer and the money it pays for TTD gets subtracted from the profits
Staples realizes. Therefore, it contested the TTD issue, even to the point of filing this
mandamus action after losing at all levels of the Industrial Commission.
       {¶ 22} The magistrate apparently did not consider the fact that Dr. Wolfe reported
that Donna Boyd-Shawver's condition indicated she was entitled to TTD, despite the
indication in the district hearing officer's ("DHO") order that TTD was granted partly
because of the report of Dr. Wolfe. Again, she could not do her job based on a recognized
condition.
No. 12AP-879                                                                             7

       {¶ 23} The magistrate is also wrong in indicating that Dr. Berlet saw Donna Boyd-
Shawver only in February 2012 and discounted the value of Dr. Berlet's report for this
incorrect reason. Dr. Berlet's report indicates that he had seen Donna one year earlier
and her condition was unchanged. The complaint filed by Staples acknowledges this
when it alleges Donna Boyd-Shawver was "reevaluated by Gregory Berlet, M.D." on
February 20, 2012.
       {¶ 24} Again, the magistrate's decision includes a reference to Dr. Berlet's report
which clearly indicates more than one office appointment.         The part of the report
excerpted at ¶ 33 of the magistrate's decision also supports an award of TTD for Donna.
The report of Dr. Berlet was properly cited by the staff hearing officer as a basis for
granting TTD.
       {¶ 25} Further, I disagree with the magistrate about whether the low back pain
needs to be separately recognized as a separate condition, but the reports of Dr. Wolfe and
Dr. Berlet rely on the peroneal tendonitis, not low back pain.
       {¶ 26} I would refuse to grant any writ of mandamus. If granting a writ, I certainly
would not make it a full writ but ask the commission to address in more detail why the
reports of Dr. Wolfe and/or Dr. Berlet support the granting of TTD. The majority of this
panel adopts a magistrate's decision which is seriously flawed as to critical facts and
which, in part, based upon those flaws, makes an inadequate addressing of the legal
issues. As a result, the majority reaches the wrong decision about granting a writ. I
dissent.
No. 12AP-879                                                                           8

                                         APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


State ex rel. Staples The Office                :
Superstore East, Inc.,
                                                :
              Relator,
                                                :                  No. 12AP-879
v.
                                                :               (REGULAR CALENDAR)
Industrial Commission of Ohio and
Donna Boyd-Shawver,                            :

              Respondents.                      :



                          MAGISTRATE'S DECISION

                                   Rendered on April 22, 2013


              Dawson Disantis & Myers, LLC, Shane M. Dawson and
              Paul V. Disantis, for relator.

              Michael DeWine, Attorney General, and Justine S. Casselle,
              for respondent Industrial Commission of Ohio.

              Larrimer & Larrimer, and Thomas L. Reitz, for respondent
              Donna Boyd-Shawver.


                                       IN MANDAMUS

       {¶ 27} In this original action, relator, Staples the Office Superstore East, Inc.,
requests a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order awarding to respondent Donna Boyd-Shawver
("claimant") temporary total disability ("TTD") compensation beginning November 29,
2011, and to enter an order denying the compensation.
No. 12AP-879                                                                              9

Findings of Fact:
       {¶ 28} 1. On August 12, 2009, claimant injured her left ankle while employed as an
inventory controller for relator, a self-insured employer under Ohio's Workers'
Compensation Laws. On that date, claimant slipped and fell while at work.
       {¶ 29} 2. The industrial claim (No. 09-843191) is allowed for: "left fibula fracture;
peroneal tendonitis, left side."
       {¶ 30} 3. On November 23, 2011, attending physician Wayne J. Cummings, D.O.,
examined claimant during an office visit at WorkHealth West. Dr. Cummings issued a
three-page narrative report, stating:
              Current Work Status: Donna is currently working full time
              on modified duty.

              OCCUPATIONAL HISTORY: Donna is scheduled to work 8
              hours per day. Five days a week. She works first shift. She
              works overtime hours occasionally. Donna's job is classified
              as "medium" according to the DOL standard, which requires
              her to lift up to 50 pounds occasionally and/or up to 20
              pounds frequently, and/or up to 10 pounds constantly. She
              performs repetitive work with her feet, back, legs and arms 8
              hours per day. She stands for 7 hour(s) during her shift. She
              states that she has not had a similar work related
              injury/illness. She denies non-work related activities that
              could contribute to this problem. She does not work another
              job.

              HISTORY OF INITIAL VISIT: Donna's primary problem is
              pain located in the left ankle. It has been about 17 months
              since the onset of the pain. She has noticed that it is made
              worse by walking. It is improved with elevation. She feels it is
              not improving. Her pain level is 5/10. Hurt ankle last August.
              Had surgery January 27 fixed tendons moving them under
              the ankle. Removed a bone. Has been in 2 hard cast and is
              still in a aircast. Still in a lot of pain. Has troubling walking.
              Has shooting pains in ankle. Sometimes has numbness and
              tingling.

              PROGRES NOTE- June 23, 2011: IW here for f/u to left leg
              injury. Current pain level today is 5/10 and increases to a
              sharp pain in left ankle with certain movements. Confirmed
              has had no other testing or physician referrals since last time
              she was here. IW needs a refill on the percocet. Currently
              working full time on restricted duty.
No. 12AP-879                                                                   10


           PROGRESS NOTE- July 22, 2011: Here with injury to left
           ankle. Condition is the same as above. Pain increases
           through out the day. Pain level today is 5/10. Wearing a
           brace.

           PROGRESS NOTE- August 26, 2011: Here with injury to left
           ankle. States she is the same. Last script has not been
           approved. Wearing brace. No new testing/consults/PT since
           last visit. Pain level today is 5/10.

           PROGRESS NOTE- September 23, 2011: Here with injury to
           left ankle. Pain level 8/10. Still awaiting approval for surgery.
           Pain seems to be worsening. Patient is very frustrated.

           PROGRESS NOTE- October 21, 2011: As Per IW Current
           meds are the same. She says that her right leg is starting to
           hurt with her lower back from putting all the weight on that
           side. No MRI or x[-]rays sin[c]e the last time she was here.
           She is working light duties. She is doing worse. Pain scale
           today is 5.

           REVIEW OF SYSTEMS:

           Constitutional: POSITIVE for abnormal gait, trouble
           sleeping.
           Musculoskeletal: POSITIVE for joint pain, joint stiffness,
           muscle weakness.
           Neurological: POSITIVE for burning sensation. Negative for
           numbness, tingling.

           EXAMINATION:

           Constitutional: Donna is right handed. She appears to be
           healthy. Her body habitus is mesomorphic. Her complexion
           is normal. She looks to be her stated age. Donna is able to
           move with difficulty. Condition is exacerbated.

           Left Foot and Ankle: Dorsiflexion can be performed with
           pain. Eversion can be performed with pain. Inversion can be
           performed with pain. Dorsalis pedis pulse is present.
           Posterior tibialis pulse is present. Range of motion is limited.
           Swelling is present over the lateral malleolus. Tenderness is
           present over the peroneal tendons. No change.

           Lumbar Spine: Bruising is absent. Movement of the low back
           causes pain. Range of motion is limited. Muscle spasm is
No. 12AP-879                                                                        11

              apparent in the right paraspinous muscles. Tenderness to
              palpation is present over the right paraspinous muscles.

              DIAGNOSIS: 1. Fracture fibula, closed (823.81). 2. Ankle
              Sprain, Left (845.00).

              DISCUSSION: Donna's medications were recently reviewed
              by Dr. Hauser (IME)[.] He incorrectly stated that Donna was
              taking Oxycontin as well as Nucynta. This is incorrect.
              Donna has a surgical problem which has resulted in chronic
              pain. She is prescribed the lowest strength Percocet to be
              taken up to 3 times daily, along with a one-a-day anti-
              inflammatory.

              Also, due to the amount of standing and walking Donna is
              required to do, in spite of her restrictions, she has developed
              low back pain as documented above. Due to Donna's
              progressive pain symptoms, she will be restricted to a seated
              job assignment.

              PLAN OF CARE: Dr. Gregory Berlett [sic] has recommended
              surgery. C-9 submitted and denied. (11/23)

              MEDICAL CAUSATION: The cause of this problem is related
              to work activities.

              RECOMMENDED WORK STATUS: Donna's recommended
              work status is restricted duty. The effective date for this work
              status is 11/23/2011.

       {¶ 31} 4. On November 23, 2011, Dr. Cummings completed a "Physician's Report
of Work Ability" ("MEDCO-14"), a form provided by the Ohio Bureau of Workers'
Compensation ("bureau"). On the MEDCO-14, Dr. Cummings indicated by his mark that
claimant could return to work with restrictions. Dr. Cummings indicated that claimant
must be allowed to change positions as needed and work no more than an eight hour day.
He further indicated that claimant now requires a "[s]eated job assignment."
       {¶ 32} 5. Apparently, Dr. Cummings did not complete a C-84 that lists
November 23, 2011 as the date of last examination.
       {¶ 33} 6. Following a December 23, 2011 examination, Dr. Cummings issued a
type-written progress note, stating:
No. 12AP-879                                                                  12

           PROGRESS NOTE- December 23, 2011: States left ankle is
           the same. Employer doesn't have any light duty. No new
           testing/consults since last visit. Pain level today is 5/10.

           REVIEW OF SYSTEMS:

           Constitutional: POSITIVE for abnormal gait, trouble
           sleeping.
           Musculoskeletal: POSITIVE for joint pain, joint stiffness,
           muscle weakness.
           Neurological: POSITIVE for burning sensation. Negative for
           numbness, tingling.

           EXAMINATION:

           Constitutional: Donna is right handed. She appears to be
           healthy. Her body habitus is mesomorphic. Her complexion
           is normal. She looks to be her stated age. Donna is able to
           move with difficulty.

           Left Foot and Ankle: Dorsiflexion can be performed with
           pain. Eversion can be performed with pain. Inversion can be
           performed with pain. Dorsalis pedis pulse is present.
           Posterior tibialis pulse is present. Range of motion is limited.
           Swelling is present over the lateral malleolus. Tenderness is
           present over the peroneal tendons. No change.

           Lumbar Spine: Bruising is absent. Movement of the low back
           causes discomfort. Range of motion is mildly limited.
           Tenderness to palpation is present over the right
           paraspinous muscles.

           DIAGNOSIS: 1. Fracture fibula, closed (823.81). 2. Ankle
           Sprain, Left (845.00).

           DISCUSSION: Due to Donna's progressive pain symptoms,
           she has been restricted to a seated job assignment.

           PLAN OF CARE: Dr. Gregory Berlett [sic] has recommended
           surgery. C-9 submitted and denied. (12/23)

           MEDICAL CAUSATION: The cause of this problem is related
           to work activities.

           RECOMMENDED WORK STATUS: Donna's recommended
           work status is restricted duty. The effective date for this work
           status is 12/23/2011.
No. 12AP-879                                                                           13

(Emphasis sic.)
       {¶ 34} 7. On December 23, 2011, Dr. Cummings completed another MEDCO-14
which contains the same restrictions as contained on the November 23, 2011 MEDCO-14.
Among the restrictions was a "[s]eated-job assignment."
       {¶ 35} 8. On December 23, 2011, Dr. Cummings completed a C-84 certifying that,
beginning November 28, 2011, claimant was unable to return to her former position of
employment as an inventory controller but was able to work at a "[s]eated job
assignment."      January 30, 2012 is listed as the estimated return-to-work date.
December 23, 2011 is listed as the date of last examination.
       {¶ 36} The C-84 form asks the physician to "[l]ist diagnosis(es) for allowed
conditions being treated, which prevent return to work." In response, Dr. Cummings
wrote: "1. Fracture fibula, closed (823.81), 2. Ankle Sprain, Left (845.00)."
       {¶ 37} 9. On January 17, 2012, claimant moved for TTD compensation on form C-
86. On the C-86 form, claimant, through counsel, stated:
               Per the 11/23/2011 report of Dr. Wayne Cumming[s], the
               claimant was restricted to a seated job assignment. The self-
               insured employer allowed her to work one week on that
               restriction. The Injured [W]orker was then told that
               employer does not offer a light duty position, and has not
               received compensation since that time. Therefore, we
               respectfully request that temporary total compensation be
               granted.

       {¶ 38} In support of her motion, claimant submitted the C-84, the MEDCO-14s,
and the November 23, 2011 narrative report of Dr. Cummings.
       {¶ 39} 10. On January 18, 2012, at relator's request, claimant was examined by
orthopedist John S. Wolfe, M.D. In his four-page narrative report, Dr. Wolfe opines:
               I did not identify a peroneal tear or left ankle instability and I
               feel these should not be allowed in the claim. I found
               peroneal tendonitis on the left side to be present and I think
               it should be allowed in the claim.

               ***

               I do not believe the claimant to be capable of returning to her
               position of employment. Because of chronic pain issues and
               unsuccessful surgery, she has lost the ability to be on her feet
               more than 2-4 hours per day. She has lost the ability to safely
No. 12AP-879                                                                     14

              climb, kneel and squat because of pain in her ankle. Those
              are also her basic restrictions and I look for them to be
              permanent in duration.

       {¶ 40} 11. Following a February 17, 2012 examination, Dr. Cummings issued a
progress report, stating:
              PROGRESS NOTE- February 17, 2012: States left ankle is the
              same. Had a hearing on 1-31-12. Has an [appointment] with
              Dr[.] Berlet on Monday 2-20-12 and Dr[.] Lin on 2-21-12.
              Next hearing will be scheduled after Dr[.] Berlet and Dr[.]
              Lin[']s [appointments]. No new testing since last visit. Pain
              level today is 5/10.

              REVIEW OF SYSTEMS:

              Constitutional: POSITIVE for abnormal gait, trouble
              sleeping.
              Musculoskeletal: POSITIVE for joint pain, joint stiffness,
              muscle weakness.
              Neurological: POSITIVE for burning sensation. Negative for
              numbness, tingling.

              EXAMINATION:

              Constitutional: Donna is right handed. She appears to be
              healthy. Her body habitus is mesomorphic. Her complexion
              is normal. She looks to be her stated age. Donna is able to
              move with difficulty.

              Left Foot and Ankle: Dorsiflexion can be performed with
              pain. Eversion can be performed with pain. Inversion can be
              performed with pain. Dorsalis pedis pulse is present.
              Posterior tibialis pulse is present. Range of motion is limited.
              Swelling is present over the lateral malleolus. Tenderness is
              present over the peroneal tendons. No change.

              Lumbar Spine: Bruising is absent. Movement of the low back
              causes discomfort. Range of motion is mildly limited.
              Tenderness to palpation is present over the right
              paraspinous muscles.

              DIAGNOSIS: 1. Fracture ankle, lateral malleolus (closed),
              left (824.2).

              DISCUSSION: Due to Donna's progressive pain symptoms,
              she has been restricted to a seated job assignment.
No. 12AP-879                                                                          15

              PLAN OF CARE: Dr. Gregory Berlett [sic] has recommended
              surgery. C-9 submitted and denied. (2/17) Patient had an
              IME on 1/18. Ortho F/U scheduled.

              MEDICAL CAUSATION: The cause of this problem is related
              to work activities.

              RECOMMENDED WORK STATUS: Donna's recommended
              work status is restricted duty. The effective date for this work
              status is 1/17/2012.

(Emphasis sic.)
       {¶ 41} 12. Following the February 17, 2012 examination, Dr. Cummings completed
another C-84 and MEDCO-14. The C-84 extended the period of TTD to March 30, 2012.
Both documents restrict claimant to a "[s]eated job assignment." As earlier noted, the C-
84 form asks the physician to "[l]ist diagnosis(es) for allowed conditions being treated,
which prevent return to work." In response, Dr. Cummings wrote: "1. Fracture, ankle,
lateral malleolus (closed), left (824.2)."
       {¶ 42} 13. On February 20, 2012, at claimant's own request, she was examined by
Gregory C. Berlet, M.D., at the Orthopedic Foot & Ankle Center located in Westerville,
Ohio. Dr. Berlet issued a two-page narrative report, stating:
              Ms. Boyd Shawver is in today and believe it or not it has been
              a year since I have seen her. That is really hard to believe
              because when I saw her a year ago she was a patient who had
              very legitimate discomfort. Her story is well documented.
              She had a work associated injury of 8/12/2009. She had
              surgery performed by Dr. Song and it did not work. This is
              not the fault of the patient but her ankle is not good. I
              rendered the opinion last year that she had recurrent ankle
              instability that we were going to need to address this and
              somehow she has been caught up in the bureaucracy of it all
              over this last year.

              So where we are now is she is no longer able to work. Dr.
              Cummings had recommended that she be in a sitting
              position because the ankle was so bad. Again, this patient is
              motivated it is the fact that her work associated injury has
              taken her capabilities away from her that had her at a desk
              job. Unfortunately, they do not appear to have work for her
              so she has not been in there since November. She is not
              getting any wages and she is still left with this physical
              problem related to her work injury.
No. 12AP-879                                                                    16


              Where we are today then is she comes in limping, she is
              wearing her brace, in every way the same patient I saw a year
              ago. She is varus unstable when I test her. She has some
              swelling around the peroneal tendons so I would recommend
              that we add peroneal tendonitis to her claim.

              I updated her x-rays three views standing. It shows a single
              anchor in the fibula. Thankfully, the ankle is not turning to
              varus yet.

              I am strongly recommending MRI imaging of this ankle.
              What I want to see is what is left of the anterior talofibular
              ligament, what is left of the calcaneofibular ligament, are the
              peroneal tendons are torn or are they just inflamed. Again, it
              is my opinion that at some point the appropriate thing to do
              here is revision surgery for her ankle giving her a fighting
              chance to be able to earn a living and take care of her family.

              So I will order the MRI today. I am going to add peroneal
              tendinitis to the claim. She is back with me after the MRI
              and we will move forward. At this point though I consider
              her temporarily yet totally disabled.

       {¶ 43} 14. Following a March 16, 2012 examination, Dr. Cummings issued a
progress note, stating:
              PROGRESS NOTE- March 16, 2012: States left ankle is the
              same. Hearing scheduled for 3/26/12. Had an [appointment]
              with Dr. Berlet on 2/20/12. MRI was approved. Had MRI on
              3/5/12. Next [appointment] for results of MRI is 4/3/12.
              Had an IME 2/21/12. No new testing since last visit. Pain
              level today is 5/10.

              REVIEW OF SYSTEMS:

              Constitutional: POSITIVE for abnormal gait, trouble
              sleeping.
              Musculoskeletal: POSITIVE for joint pain, joint stiffness,
              muscle weakness.
              Neurological: POSITIVE for burning sensation. Negative for
              numbness, tingling.

              EXAMINATION:

              Constitutional: Donna is right handed. She appears to be
              healthy. Her body habitus is mesomorphic. Her complexion
No. 12AP-879                                                                              17

               is normal. She looks to be her stated age. Donna is able to
               move with difficulty.

               Left Foot and Ankle: Dorsiflexion can be performed with
               pain. Eversion can be preformed with pain. Inversion can be
               performed with pain. Dorsalis pedis pulse is present.
               Posterior tibialis pulse is present. Range of motion is limited.
               Swelling is present over the lateral maileolus. Tenderness is
               present over the peroneal tendons. No change.

               Lumbar Spine: Bruising is absent. Movement of the low back
               causes discomfort. Range of motion is mildly limited:
               Tenderness to palpation is present over the right
               paraspinous muscles.

               DIAGNOSIS: 1. Fracture, ankle, lateral malleolus (closed),
               left (824.2).

               DISCUSSION: Due to Donna's progressive pain symptoms,
               she has been restricted to a seated job assignment.

               PLAN OF CARE: Dr. Gregory Berlett [sic] has recommended
               surgery. C-9 submitted and denied. (2-17). Patient had an
               IME on 1/18. Ortho F/U scheduled. Patient recently had a
               repeat MRI per Dr. Berlet.

               MEDICAL CAUSATION: The cause of this problem is related
               to work activities.

               RECOMMENDED WORK STATUS: Donna's recommended
               work status is restricted duty. The effective date for this work
               status is 3/16/2012.

(Emphasis sic.)

       {¶ 44} 15. Following the March 16, 2012 examination, Dr. Cummings completed
another C-84 and MEDCO-14. The C-84 extends the period of TTD to a May 1, 2012
estimated return-to-work date.      Both documents restrict claimant to a "[s]eated job
assignment."
       {¶ 45} As earlier noted, the C-84 form asks the physician to "[l]ist diagnosis(es) for
allowed conditions being treated, which prevent return to work."           In response, Dr.
Cummings wrote: "1. Fracture, ankle, lateral malleolus (closed), left (824.2)."
No. 12AP-879                                                                          18

      {¶ 46} 16. Following a March 26, 2012 hearing, a district hearing officer ("DHO")
issued an order granting TTD compensation beginning November 29, 2011. The DHO's
order explains:
             It is the order of the District Hearing Officer that the C-86
             Motion, filed by Injured Worker on 01/17/2012, is granted to
             the extent of this order.

             It is the order of the District Hearing Officer that payment of
             temporary total disability compensation is granted from
             11/29/2011 through 03/25/2012 and to continue upon the
             submission of appropriate proof of disability. Prior to
             11/23/2011 the Injured Worker was working with restrictions
             of no lifting above ten pounds and occasional standing and
             walking. In his MEDCO-14 report dated 11/23/2011 Dr.
             Cummings restricted the Injured Worker to a seated job
             assignment, which the Employer made available on
             11/28/2011 but not thereafter. The period of temporary total
             disability is supported by Dr. Cummings' MEDCO-14 reports
             and his C-84 reports dated 12/23/2011 and 02/17/2012. The
             District Hearing Officer also relies on Dr. Wolfe's
             01/18/2012 report in which he opines that the Injured
             Worker is not physically capable of returning to her former
             position of employment, and the lack of any persuasive
             evidence that the allowed conditions have reached maximum
             medical improvement.

      {¶ 47} 17. Relator administratively appealed the DHO's order of March 26, 2012.
      {¶ 48} 18. Following a May 10, 2012 hearing, a staff hearing officer ("SHO") issued
an order affirming the DHO's order of March 26, 2012. The SHO's order explains:
             Temporary total disability compensation is granted from 11-
             29-11 through 5-1-12, and to continue upon submission of
             medical proof.

             This decision is based on the 11-23-11 treatment record from
             Dr. Cummings, the 2-20-12 treatment record from Dr.
             Berlet, the 11-23-11, 12-23-11, 2-17-12, and 3-16-12 Medco-14
             reports from Dr. Cummings, and the 12-23-11, 2-17-12, and
             3-16-12 C-84 reports from Dr. Cummings.

             The 11-23-11 treatment record indicates that the injured
             worker was working on restrictions but was still required to
             do a lot of standing and walking that was causing an
             exacerbation as well as low back problems, which led the
             Doctor to restrict the injured worker to seated work only.
No. 12AP-879                                                                            19

              There is no indication from the employer that seated work
              was made available from 11-26-11 through 5-1-12.

       {¶ 49} 19. On June 2, 2012, another SHO mailed an order refusing relator's
administrative appeal.
       {¶ 50} 20. On August 14, 2012, the three-member commission mailed an order
denying reconsideration.
       {¶ 51} 21. On October 10, 2012, relator, Staples the Office Superstore East, Inc.,
filed this mandamus action.
Conclusions of Law:
       {¶ 52} The commission, through its SHO, awarded TTD compensation based in
part upon the November 23, 2011 report of Dr. Cummings who restricted claimant to a
"[s]eated job assignment" based in part upon "low back pain" attributed "to the amount of
standing and walking [claimant] is required to do." The SHO also stated reliance upon
the C-84s and MEDCO-14s of Dr. Cummings. The SHO stated further reliance upon the
report of Dr. Berlet.
       {¶ 53} Three issues are presented:    (1) is the commission's reliance upon the
November 23, 2011 report of Dr. Cummings foreclosed by the absence of a claim
allowance for a low back condition, (2) do the progress reports of Dr. Cummings mandate
evidentiary elimination of his C-84s and MEDCO-14s on grounds that allegedly they are
inconsistent with the conditions discussed in the progress reports, and (3) given that
commission reliance upon the reports of Dr. Cummings is foreclosed, can a portion of the
award be saved by the commission's reliance upon the report of Dr. Berlet?
       {¶ 54} The magistrate finds: (1) the commission's reliance upon the November 23,
2011 report of Dr. Cummings is foreclosed by the absence of a claim allowance for a low
back condition, (2) the progress reports of Dr. Cummings mandate evidentiary
elimination of his C-84s and MEDCO-14s, and (3) a portion of the award cannot be saved
by the commission's reliance upon the report of Dr. Berlet.
                                    The First Issue
       {¶ 55} A newly identified condition that may be related to an industrial injury must
be formally recognized in the claim if that condition is to become the basis for
compensation. State ex rel. Jackson Tube Servs., Inc. v. Indus. Comm., 99 Ohio St.3d 1,
No. 12AP-879                                                                               20

2003-Ohio-2259. Moreover, the claimant cannot "circumvent additional allowance by
simply asserting a relationship to the original injury." State ex rel. Sears Roebuck Co. v.
Indus. Comm., 131 Ohio St.3d 45, 2011-Ohio-6525, ¶ 29, quoting Jackson Tube at ¶ 25.
Case law sets forth two exceptions to this well-settled law, but the exceptions do not assist
the claimant in this action.
       {¶ 56} State ex rel. Miller v. Indus. Comm., 71 Ohio St.3d 229 (1994), presents one
exception to the general rule that is instructive here. At issue in Miller was authorization
of a supervised weight-loss program where obesity had worsened subsequent to the
industrial injury.   The Miller court rejected the commission's position that formal
recognition of "obesity" as an allowed condition in the claim is a prerequisite for
authorization of the weight-loss program. The Miller court gave several reasons for its
position. First, because obesity is a generalized condition, it cannot be restricted to a
specific body part or parts as R.C. 4123.84 envisions.         Second, a claimant who is
overweight when injured generally cannot maintain the requisite causal relationship for
an additional allowance. This would make the pre-existence of obesity, in and of itself,
dispositive.
       {¶ 57} Thus, the Miller court held that additional allowance of obesity is not a
prerequisite to consideration of payment for a weight-loss program. Rather, the requisite
causal relationship question is to be addressed by the three-step test set forth in the Miller
decision: (1) are the medical services reasonably related to the industrial injury, that is,
the allowed conditions, (2) are the services reasonably necessary for treatment of the
industrial injury, and (3) is the cost of such service medically reasonable?
       {¶ 58} The other exception to the rule tying compensability to formal allowance is
set forth in Jackson Tube. In turn, Jackson Tube is succinctly summarized by the court in
Sears, as follows:
               In Jackson Tube, the claimant's workers' compensation
               claim had been allowed for a torn rotator cuff. Continuing
               shoulder problems, however, as well as a failure to have a
               shoulder arthroscopy performed, prompted his doctor to
               express concern that "substantial pathology [was] still being
               missed," most likely a secondary tear. Id. at ¶ 14. For these
               reasons, he sought permission both to perform exploratory
               surgery to determine the cause of claimant's persistent
               symptoms and to fix the problem he found.
No. 12AP-879                                                                          21


              The employer objected to the procedure, arguing that the
              shoulder conditions identified by the doctor as the potential
              source of claimant's continuing problems had not been
              allowed in the claim. The commission allowed the surgery
              nonetheless, and we upheld that decision. We acknowledged
              that the issue was a difficult one, with compelling arguments
              being made by both sides:

              On one hand, claimant could not move for additional
              allowance beforehand, since without the surgery, the
              problematic conditions could not be identified. On the other
              hand, self-insured JTS questions its recourse when ordered
              to pay for surgery that ultimately reveals any conditions to be
              nonindustrial. It also fears that payment could be interpreted
              as an implicit allowance of all of the conditions in the
              postoperative diagnosis. Id. at ¶ 22.

              Addressing the latter concern first, we stressed that an
              employee could not "circumvent additional allowance by
              simply asserting a relationship to the original injury. The
              problem in this case, however, is that because any conditions
              are internal, claimant could not know what conditions to
              seek additional allowance for without first getting the
              diagnosis that only surgery could provide." Id. at ¶ 25.

              We were additionally persuaded by the physician's consistent
              assertion that whatever condition was the source of the
              claimant's shoulder complaints, that condition was related to
              the industrial injury. We also noted that claimant's doctor
              had indicated that irrespective of any other conditions that
              may be contributing to claimant's problems, the allowed
              condition of torn rotator cuff had to be surgically repaired.
              To deny the surgery simply because more conditions could
              be found would conflict with our earlier decision in State ex
              rel. Griffith v. Indus. Comm. (1999), 87 Ohio St.3d 154, 718
              N.E.2d 423. We closed, however, by clarifying that if other
              shoulder conditions were indeed found, further treatment or
              compensation could not be authorized unless the conditions
              were then additionally allowed in the claim.

Id. at ¶ 26-30.

       {¶ 59} Here, that Dr. Cummings suggests a causal relationship between the
industrial injury and claimant's low back pain does not circumvent the general rule tying
compensability to formal allowance. That is, that Dr. Cummings relates the lower back
No. 12AP-879                                                                             22

pain to the amount of standing and walking claimant is required to do on her job does not
suffice to establish compensability for the low back pain in the absence of a formal
allowance for the low back condition.
       {¶ 60} Here, the commission argues that the commission can award TTD
compensation based upon the low back pain because, allegedly, the low back pain is but a
symptom of the allowed conditions. The magistrate disagrees with this argument.
       {¶ 61} Stating that the low back pain is a symptom of the allowed conditions is but
another way of stating that the low back pain is causally related to the allowed conditions.
As earlier noted, the claimant cannot circumvent additional allowance by simply asserting
a relationship to the original injury. Sears; Jackson Tube. Even if the lower back pain is a
symptom of the allowed ankle conditions, that symptom is not located at the ankle, but at
another body part of claimant's anatomy. Thus, the absence of a claim allowance for the
lower back forecloses reliance upon the pain at the lower back in awarding compensation.
See State ex rel. Meridia Hillcrest Hosp. v. Indus. Comm., 74 Ohio St.3d 39 (1995),
(claimant unsuccessfully argued that her pregnancy complications were symptoms of her
allowed abdominal conditions and therefore need not be allowed for her to obtain
compensation).
                                   The Second Issue
       {¶ 62} 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 TTD 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, 242 (1997).
       {¶ 63} Here, respondents assert that the commission relied upon medical evidence
showing that the allowed conditions alone are independently disabling.
       {¶ 64} For example, with respect to the December 23, 2011 C-84, which is the
earliest of the C-84s at issue, Dr. Cummings certified that disability began on
November 28, 2011 due to the allowed conditions which he states to be a closed fibula
No. 12AP-879                                                                             23

fracture and a left ankle sprain (while the industrial claim is not allowed for a left ankle
sprain, relator does not argue that the C-84 lacks evidentiary value for that reason).
Respondents would argue that, because Dr. Cummings has based his disability
certification solely upon the ankle injury, the C-84 is some evidence that the ankle injury
alone is independently disabling.         Respondents would no doubt add that the
December 23, 2011 C-84 does not, on its face, attribute disability to low back pain.
       {¶ 65} With respect to the February 17 and March 16, 2012 C-84s at issue, Dr.
Cummings certified that disability began on November 28, 2011 due to the allowed
conditions which Dr. Cummings described as "Fracture, ankle, lateral malleolus (closed),
left (824.2)."    (Relator does not argue that Dr. Cummings incorrectly identified the
allowed conditions on the February 17 and March 16, 2012 C-84s. Thus, respondents
would argue that, because Dr. Cummings has based his disability certification solely upon
the ankle injury, the February 17, 2012 and March 16, 2012 C-84s are some evidence that
the ankle injury alone is independently disabling.
       {¶ 66} The Supreme Court of Ohio has held that a medical report can be so
internally inconsistent that it cannot constitute some evidence supporting a commission
decision. State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445 (1994). By extension,
the court held in State ex rel. M. Weingold & Co. v. Indus. Comm., 97 Ohio St.3d 44,
2002-Ohio-5353, that substantial inconsistencies between two C-84s generated by the
same examination compel the same result as in Lopez.
       {¶ 67} This court followed the M. Weingold rationale in State ex rel. Genuine Parts
Co. v. Indus. Comm., 160 Ohio App.3d 99, 2005-Ohio-1447, ¶ 4 (10th Dist.), wherein this
court stated:
                 Contrary to the respondent's contention, Dr. Snell's C-84 is
                 not evidence upon which the commission could rely because
                 the C-84 is inconsistent with Dr. Snell's examination notes.
                 Recognizing this inconsistency does not require the weighing
                 of evidence as respondent argues. We give no greater weight
                 to either the C-84 or the examination notes. We simply find,
                 as did the magistrate, that they relate to the same
                 examination and that they are inconsistent. The fact that the
                 inconsistency arises from statements contained in two
                 different documents rather than in one report is not
                 significant. Again, it is clear that both documents were
                 prepared by Dr. Snell and relate to the same physical
No. 12AP-879                                                                              24

              examinations. As the magistrate notes, the same rationale
              was applied in State ex rel. M. Weingold & Co. v. Indus.
              Comm., 97 Ohio St.3d 44, 2002-Ohio-5353, which involved
              substantial inconsistencies between two C-84s arising from
              the same examination.

       {¶ 68} In Genuine Parts, Dr. Snell certified the allowed lumbosacral sprain as the
cause of TTD when his office notes failed to mention a lumbosacral sprain but did discuss
serious disallowed and non-allowed conditions.
       {¶ 69} The Genuine Parts rationale compels the elimination of Dr. Cummings' C-
84s and MEDCO-14s from evidentiary consideration.
       {¶ 70} All of the C-84s and MEDCO-14s at issue relate not only to the examination
directly corresponding to their issuance, but also to the November 23, 2011 examination
and progress report where Dr. Cummings indicates that the restriction to a "[s]eated job
assignment" is the result of low back pain. All of the C-84s and MEDCO-14s restrict
claimant to a "[s]eated job assignment" which relates back to the November 23, 2011
examination and progress report at which the low back pain is identified.
       {¶ 71} That is to say, while four examinations generated the C-84s and MEDCO-
14s at issue, those medical reports uniformly restrict claimant to a "[s]eated job
assignment"—a restriction that began with the November 23, 2011 examination and
progress report that attributes disability, at least in part, to a non-allowed condition.
Thus, the Genuine Parts rationale compels the elimination of Dr. Cumming' C-84s and
MEDCO-14s from evidentiary consideration.
                                    The Third Issue
       {¶ 72} The third issue, as previously noted, is whether a portion of the award can
be saved by the commission's reliance upon the February 20, 2012 report of Dr. Berlet.
       {¶ 73} As earlier noted, in his February 20, 2012 report, Dr. Berlet opines: "I
consider her temporarily yet totally disabled." He further states: "So where we are now is
she is no longer able to work."
       {¶ 74} As a general rule, a doctor cannot offer an opinion on a claimant's extent of
disability for a period that precedes the doctor's examination of the claimant. State ex rel.
Foor v. Rockewell Internatl., 78 Ohio St.3d 396, 399 (1997); State ex rel. Foreman v.
Indus. Comm., 64 Ohio St.3d 70, 72 (1992); State ex rel. Abner v. Mayfield, 62 Ohio St.3d
No. 12AP-879                                                                               25

423 (1992); State ex rel. Kroger Co. v. Morehouse, 74 Ohio St.3d 129, 133 (1995); and
State ex rel. Case v. Indus. Comm., 28 Ohio St.3d 383, 387 (1986).
       {¶ 75} A doctor who does offer an opinion as to the claimant's extent of disability
that is retrospective of the date of his examination is treated as a non-examining doctor as
to his retrospective opinion. Under such scenario, the doctor must observe certain
safeguards if his retrospective opinion is to be accepted as evidence in a commission
proceeding. State ex rel. Bowie v. Grater Cleveland Regional Transit Auth., 75 Ohio St.3d
458 (1996). If the doctor's retrospective opinion is to be relied upon by the commission as
some evidence, it is imperative that the doctor has reviewed all of the relevant medical
evidence generated prior to the date of the examination from which the retrospective
opinion is rendered.
       {¶ 76} Dr. Berlet performed a one time only examination on February 20, 2012.
He did not offer an opinion as to claimant's extent of disability that is retrospective of the
date of his examination. Consequently, Dr. Berlet's report cannot constitute evidence of
TTD for the period prior to the February 20, 2012 examination date.
       {¶ 77} While Dr. Berlet's report can be viewed as containing an opinion that, at the
time of the examination, claimant was medically unable to return to her former position
of employment based upon the allowed ankle conditions, Dr. Berlet did not prospectively
opine as to the estimated length of time the disability would last. Unlike Dr. Cummings,
Dr. Berlet did not complete a C-84 or a MEDCO-14. The failure to offer an estimated
return-to-work date or to prospectively opine as to the estimated duration of the disability
is problematical.
       {¶ 78} The Genuine Parts case is again instructive. In that case, the commission
relied upon the C-84 of Dr. Snell to award TTD compensation. The commission's order
also stated that Dr. Smith's report is persuasive "but not technically relied upon."
Genuine Parts at ¶ 36. Later, the commission's order stated reliance upon Dr. Smith.
After elimination of Dr. Snell's C-84 from evidentiary consideration, this court was faced
with the question of whether Dr. Smith's report provided evidence of TTD.
       {¶ 79} However, Dr. Smith had not certified prospectively a specific period of TTD.
This court rejected the magistrate's recommendation that this court issue a writ that
No. 12AP-879                                                                                26

orders the commission to take additional evidence from Dr. Smith as to the period of
TTD. This court explained:
              Dr. Snell's C–84 was not evidence upon which the
              commission could rely because it conflicted with his office
              notes. It is unclear whether the commission relied upon Dr.
              Smith's report. Regardless of whether the commission relied
              upon Dr. Smith's report, the report is not sufficient to
              support an award of TTD compensation. Therefore, there
              simply is insufficient evidence to support an award of TTD.

Id. at ¶ 6.

       {¶ 80} Here, the report of Dr. Berlet presents a circumstance similar to the
circumstance presented by Dr. Smith's report in Genuine Parts. Because Dr. Berlet fails
to opine as to any period of disability prospective of his February 20, 2012 examination,
his report provides no evidence of TTD.
       {¶ 81} Thus, the commission's reliance upon the report of Dr. Berlet does not save
a portion of the award that might have begun as of the date of Dr. Berlet's examination.
       {¶ 82} Accordingly, for all the above reasons, it is the magistrate's decision that this
court issue a writ of mandamus ordering the commission to vacate the May 10, 2012 order
of its SHO that awards TTD compensation beginning November 29, 2011, and to enter an
order that denies the request for TTD compensation.




                                           /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).
