[Cite as State ex rel. Rocktenn Co. v. Indus. Comm., 2013-Ohio-5296.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Rocktenn Company,                        :
f.k.a. Stone Container Corp.,
                                                       :
                 Relator,
                                                       :                No. 12AP-862
v.
                                                       :            (REGULAR CALENDAR)
Edward A. Long, Sr. and
Industrial Commission of Ohio,                         :

                 Respondents.                          :


                                         D E C I S I O N

                                    Rendered on December 3, 2013


                 Scott, Scriven & Wahoff, LLP, Timothy E. Cowans and C.
                 Bradley Howenstein, for relator.

                 Richard F. Brian, for respondent Edward A. Long, Sr.

                 Michael DeWine, Attorney General, and LaTawnda N.
                 Moore, for respondent Industrial Commission of Ohio.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, J.
        {¶ 1} Relator, Rocktenn Company, f.k.a. Stone Container Corp., has filed this
original action requesting that this court issue a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to vacate its order awarding to
respondent, Edward A. Long, Sr. ("claimant"), a one-percent increase in his percentage of
permanent partial disability ("PPD") compensation pursuant to R.C. 4123.57. Relator
asks us to order the commission to deny claimant's application for an increase in his PPD.
No. 12AP-862                                                                                 2


       {¶ 2} Pursuant to Civ.R. 53(D) and Loc. R.13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
that this court deny the request for a writ of mandamus.
       {¶ 3} Relator generally argues that, although the magistrate has set forth the
applicable statute, R.C. 4123.57(A), and Ohio Adm.Code 4123-3-15(B), it does not apply
the same to the facts of this case. Relator sets forth the following three specific objections:
              The magistrate erred in concluding that Long's subjective
              complaint described as "chronic pain" by Dr. Iemma, absent
              reasonably demonstrable (i.e. objective) medical or clinical
              findings showing a worsening of his condition since the last
              hearing, constituted some evidence upon which the
              commission could rely to award a PPD increase.

              The magistrate erred in finding Dr. Iemma's report describing
              Long's subjective complaints as "chronic pain" constituted
              substantial evidence of new and changed circumstances since
              the last award.

              The magistrate erred in finding the 2011 report of Dr. Iemma
              was some evidence upon which the commission could rely
              where his report suggests he was unaware of Long's 2010 back
              injury and resulting herniated disk at L4-5 when he attributed
              Long's low back pain following his 2010 injury to a 1990 claim
              that had not required any treatment or mediation for the
              previous nine years.

       {¶ 4} The arguments raised in relator's objections are essentially the same as
those raised before and addressed by the magistrate.
       {¶ 5} R.C. 4123.57(A) states in part:
              Except on application for reconsideration, review, or
              modification, which is filed within ten days after the date of
              receipt of the decision of the district hearing officer, in no
              instance shall [a PPD] award be modified unless it is found
              from medical or clinical findings that the condition of the
              claimant resulting from the injury has so progressed as to
              have increased the percentage of permanent partial disability.
              * * * No application for subsequent percentage determin-
              ations on the same claim for injury or occupational disease
              shall be accepted for review by the district hearing officer
              unless supported by substantial evidence of new and changed
No. 12AP-862                                                                               3


              circumstances developing since the time of the hearing on the
              original or last determination.

       {¶ 6} Ohio Adm.Code 4123-3-15(B) states:

              (B) "Application for Determination of Percentage of
              Permanent Partial Disability or Increase of Permanent Partial
              Disability" pursuant to division (A) of section 4123.57 of the
              Revised Code in state fund and self-insured claims.

              (1) * * * An application for an increase in permanent partial
              disability must be accompanied by substantial evidence of
              new and changed circumstances which have developed since
              the time of the hearing on the original or last determination.

       {¶ 7} While relator continues to argue in general that claimant's subjective
complaint of "chronic pain" cannot justify the grant of an increase in permanent partial
disability, absent objective medical or clinical findings of increased impairment, we reject
this argument and find no merit for the reasons stated in the magistrate's decision.
       {¶ 8} Furthermore, for the reasons stated in the magistrate's decision, we reject
relator's specific arguments that (1) claimant's complaint of chronic pain cannot
constitute substantial evidence of new and changed circumstances because the opining
physician failed to indicate when the "chronic pain" began, and (2) that Dr. Iemma's 2011
report cannot constitute some evidence upon which the commission could rely because
the report indicates no awareness of claimant's 2010 back injury. We also reject relator's
assertion that Dr. Sethi's report is the only report on which the commission could rely.
       {¶ 9} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
relator's three objections to the magistrate's decision and adopt the magistrate's decision
as our own, including the findings of fact and conclusions of law contained therein.
       {¶ 10} Accordingly, the requested writ of mandamus is hereby denied.
                                                        Objections overruled; writ denied.
                           SADLER and O'GRADY, JJ., concur.
No. 12AP-862                                                                         4


                                 APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State ex rel.
Rocktenn Company, f.k.a. Stone             :
Container Corp.,
                                           :
             Relator,
                                           :              No. 12AP-862
v.
                                           :       (REGULAR CALENDAR)
Edward A. Long, Sr. and
Industrial Commission of Ohio,             :

             Respondents.                  :




                        MAGISTRATE'S DECISION

                              Rendered on July 30, 2013


             Scott, Scriven & Wahoff, LLP, Timothy E. Cowans and C.
             Bradley Howenstein, for relator.

             Richard F. Brian, for respondent Edward A. Long, Sr.

             Michael DeWine, Attorney General, and LaTawnda N.
             Moore, for respondent Industrial Commission of Ohio.


                                  IN MANDAMUS

      {¶ 11} In this original action, relator, Rocktenn Company, f.k.a. Stone Container
Corp. requests a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order awarding to respondent, Edward A. Long, Sr.
("claimant"), a one percent increase in his percentage of permanent partial disability
No. 12AP-862                                                                            5


("PPD") pursuant to R.C. 4123.57, and to enter an order denying his application for an
increase in his percentage of PPD.
Findings of Fact:
       {¶ 12} 1. On September 18, 1990, claimant injured his lower back while employed
with relator, a self-insured employer under Ohio's workers' compensation laws. On that
date, claimant slipped on a wet floor and fell. The industrial claim (No. L55731-22) is
allowed for: "low back strain; herniated disc L5-S1, left."
       {¶ 13} 2. Initially, in January 1992, claimant filed an application for the
determination of his percentage of PPD. In October 1993, he was awarded eight percent
PPD.
       {¶ 14} 3. In April 1994, claimant filed an application for an increase in the
percentage of his PPD. In May 1995, he was awarded a 5 percent increase for a total of 13
percent PPD.
       {¶ 15} 4. In May 2001, claimant filed another application for an increase in his
percentage of PPD. In February 2002, he was awarded a 2 percent increase for a total of
15 percent.
       {¶ 16} 5. Earlier, in July 1992, claimant underwent a laminectomy and discectomy
at L5-S1 on the left.
       {¶ 17} 6. On an April 2000 C-9, relator approved surgery described as "lumbar
laminectomy-discectomy L4-5 right." According to relator, it "paid for surgery for the L4-
5 disc in 2000, even though no injury has ever been allowed at that level." (Relator's
brief, at 4.) A medical condition is not implicitly allowed when a self-insured employer
authorizes and pays for surgery performed to treat the condition. State ex rel. Schrichten
v. Indus. Comm., 90 Ohio St.3d 436 (2000), citing State ex rel. Griffith v. Indus. Comm.,
87 Ohio St.3d 154 (1999).
       {¶ 18} 7. In April 2010, claimant moved that his 1990 claim be additionally
allowed for "herniated disc L4-L5 and right sciatica" based upon an April 14, 2010 report
from treating physician P.L. Soni, M.D.
       {¶ 19} 8. Following a June 23, 2010 hearing, a district hearing officer ("DHO")
issued an order disallowing the 1990 claim for L4-L5 disc herniation and dismissing the
request for allowance of "right sciatica."
No. 12AP-862                                                                                6


          {¶ 20} 9. Claimant administratively appealed the DHO's order of June 23, 2010.
          {¶ 21} 10. Following an August 12, 2010 hearing, a staff hearing officer ("SHO")
issued an order affirming the DHO's order of June 23, 2010.
          {¶ 22} 11. According to relator's brief filed in this action, claimant appealed the
SHO's order of August 12, 2010 to the Tuscarawas County Court of Common Pleas where
the appeal remains pending. (Relator's brief, at 6.)
          {¶ 23} 12. In September 2010, claimant filed another workers' compensation claim
(No. 10-846915) alleging that, on January 11, 2010, he injured his lower back while
employed with another employer, Graphics Packaging.             Treating physician Dr. Soni
opined that the herniated discs at L4-5 and L5-S1 were substantially aggravated by the
injury.
          {¶ 24} 13. Following a March 14, 2011 hearing, an SHO disallowed claim number
10-846915 alleging a January 11, 2010 injury. According to relator, the SHO's claim
disallowance was appealed to the Tuscarawas County Court of Common Pleas. (Relator's
brief, at 5.)
          {¶ 25} 14. On September 19, 2011, at claimant's own request, he was examined by
chiropractor David M. Grunstein, D.C. Dr. Grunstein examined claimant for the 1990
claim and he describes the allowed conditions of that claim as "[l]ow back strain;
[h]erniated disc L5-S1, left." Dr. Grunstein opined:
                OPINION: Based on the consultation and examination
                findings above stated and how these findings correlate with
                the A.M.A. Guides, it is my opinion that the above named
                presented in this office with a total whole person impairment
                of 36 percent whole person impairment, on the above stated
                date, for the above stated conditions.

          (Emphasis sic.)
          {¶ 26} 15. Submitting the report of Dr. Grunstein, claimant filed an application for
an increase in his percentage of PPD in the 1990 claim.
          {¶ 27} 16. On December 16, 2011, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), claimant was examined by Joseph Iemma, M.D., who
specializes in internal medicine. Dr. Iemma issued a two-page narrative report, stating:
No. 12AP-862                                                                7


          CLAIM #: L55731-22

          DATE OF INJURY: 9/18/1990

          DATE OF EXAM: 12/16/2011

          ALLOWED CONDITIONS:

          [One] 847.3, Sprain, lumbar region.
          [Two] 722.10, Lumbar disc displacement.

          MEDICAL HISTORY: The claimant was working at his job.
          There was a clay "paper" wedged in. He bent over at his waist
          to pull out this clay paper wedge. He felt immediately pulling
          in his low back.

          TREATMENT: He eventually became a patient of Dr. Soni,
          orthopedist. He had an MRI. He had operative repair.
          Unfortunately, one year later, he had another injury
          requiring another operative repair. He had 2 operations back
          to back. He had physical therapy postop both.

          RESPONSE: Not good. Pain, spasm,              tightness,   and
          numbness somewhat in the left leg.

          OLD RECORDS: I have reviewed the records of Dr. Cassiono,
          MD, Dr. Smith, DO, Dr. Grunstein, DC, Dr. Soni, MD, MRI
          of lumbosacral spine which shows positive disc
          displacement.

          PRESENT COMPLAINTS: He initially had some relief, but
          now he has pain, spasm, and tightness in the low back. He
          has some left leg numbness.

          PHYSICAL EXAMINATION:
          There is no guarding. There is tenderness of the lumbosacral
          spine on the left and on the right. There is no atrophy. The
          motor sensation is +5/5 bilateral of lower extremities. There
          is decreased sharp-dull, vibratory, and light touch on the left
          leg. There is spinal radiculopathy. The reflexes are 2+ at the
          patella and 1+ at the Achilles. Station and gait are normal.
          Heel-to-toe is normal.

          Using AMA Guidelines fifth edition for the lumbosacral
          spine, pages 384-388, section 15.4, table 15.3, he is a DRE
          lumbar category 3 because of signs of radiculopathy with
No. 12AP-862                                                                           8


              decreased sensation which is a 13% W.P.I. He also has
              chronic pain, which is an additional 3% W.P.I.

              Percentage of impairment, based on the AMA Guidelines
              fifth edition revised, the total W.P.I. for this claimant is 16%.
              Please note that he had a previous 15%, therefore, today's
              final W.P.I. is 1%.

       {¶ 28} 17. On December 23, 2011, the bureau mailed a tentative order awarding an
increase of 1 percent PPD for a total of 16 percent PPD. The bureau's order was based
upon the report of Dr. Iemma.
       {¶ 29} 18. Relator timely objected to the bureau's tentative order.
       {¶ 30} 19. On January 29, 2012, at relator's request, Sushil M. Sethi, M.D.,
completed a file review of claimant's medical records in the 1990 claim. In his four-page
narrative report, Dr. Sethi opines in response to specific questions:
              Answers to Specific Questions:

              [One] Does the claimant present with substantial
              evidence of new and distinct findings to change the
              consensus developing since June 2002, the time he
              was awarded 2% increase in impairment to a total of
              15% permanent award.
              Is it felt that his rating should be increased?

              Based on thorough review of the records it is my expert
              medical opinion that there are no objective physical findings,
              laboratory findings, or diagnostic findings to show any
              substantial evidence of new and changed circumstances to
              cause any further increase in impairment than the previous
              15%. Today's estimate based on the review of the entire
              medical records and the measurements of the treating and
              the examining physicians the claimant continues to be DRE
              category 3 and as per 5th edition AMA guidelines reference
              page 384, table 15-3 the impairment is 10% of the whole
              person. The claimant does not have any new and distinct
              findings to warrant any further increase than the previous
              award of 15%.

              [Two] What do you currently rate his percentage of
              permanent disability pursuant to the AMA
              guidelines?
No. 12AP-862                                                                          9


              Considering all of the measurements described by different
              evaluating physicians including the chiropractor Grunstein,
              Dr. Soni, Dr. Iemma, as well as the prior measurements of
              Dr. Smith and Dr. Wilde it is my expert medical opinion that
              the claimant continues to be DRE category 3 of the lumbar
              spine page 384, table 15-3 the impairment is 10%. I have
              performed a formal pain related evaluation and find no
              additional unnecessary [sic] for pain. It is reflected in my
              assessment of the injured part. There is no further increase
              in impairment due to today's evaluation over the previous
              award.

(Emphasis sic.)
        {¶ 31} 20. Following a February 7, 2012 hearing, a DHO issued an order affirming
the bureau's December 23, 2011 order. The DHO's order explains:
              The order of the Administrator issued 12/23/2011 is
              affirmed.

              The Application is granted. The District Hearing Officer
              finds from proof of record that the Injured Worker's
              percentage of permanent partial disability has increased and
              is now 16 percent, which is an increase of 1 percent, and
              Injured Worker is therefore entitled to an additional award
              of compensation for a period of 2 weeks.

              This order is based upon the report of Dr. Iemma.

        {¶ 32} 21. Relator moved for reconsideration of the DHO's order of February 7,
2012.
        {¶ 33} 22. Following an April 18, 2012 hearing, an SHO issued an order affirming
the DHO's order of February 7, 2012. The SHO's order explains:
              The Staff Hearing Officer affirms the District Hearing
              Officer's order for the reason that it is supported by proof of
              record and is not contrary to law. Therefore the increased
              award of 16 percent, which is an increase of 1 percent,
              entitles the injured worker to an additional award of
              compensation for a period of 2 weeks.

              This decision is based upon the report of Dr. Iemma dated
              12/16/2011.
No. 12AP-862                                                                             10


          {¶ 34} 23. On October 2, 2012, relator, Rocktenn Company, f.k.a. Stone Container
Corp., filed this mandamus action.
Conclusions of Law:
          {¶ 35} The main issue is whether the report of Dr. Iemma, upon which the
commission exclusively relied, provides some evidence supporting the award of an
increase in the percentage of PPD.
          {¶ 36} Finding that the report of Dr. Iemma provides the some evidence
supporting the award, it is the magistrate's decision that this court deny relator's request
for a writ of mandamus, as more fully explained below.
          {¶ 37} R.C. 4123.57 provides for partial disability compensation. R.C. 4123.57(A)
states:
                (A) The district hearing officer, upon the application, shall
                determine the percentage of the employee's permanent
                disability, except as is subject to division (B) of this section,
                based upon that condition of the employee resulting from the
                injury or occupational disease and causing permanent
                impairment evidenced by medical or clinical findings
                reasonably demonstrable. * * * Except on application for
                reconsideration, review, or modification, which is filed
                within ten days after the date of receipt of the decision of the
                district hearing officer, in no instance shall the former award
                be modified unless it is found from medical or clinical
                findings that the condition of the claimant resulting from the
                injury has so progressed as to have increased the percentage
                of permanent partial disability. A staff hearing officer shall
                hear an application for reconsideration filed and the staff
                hearing officer's decision is final. An employee may file an
                application for a subsequent determination of the percentage
                of the employee's permanent disability. * * * No application
                for subsequent percentage determinations on the same claim
                for injury or occupational disease shall be accepted for
                review by the district hearing officer unless supported by
                substantial evidence of new and changed circumstances
                developing since the time of the hearing on the original or
                last determination.

                Supplementing the statute, Ohio Adm.Code 4123-3-15(B) provides:
                "Application for Determination of Percentage of Permanent
                Partial Disability or Increase of Permanent Partial Disability"
No. 12AP-862                                                                           11


             pursuant to division (A) of section 4123.57 of the Revised
             Code in state fund and self-insured claims.

             (1) * * * An application for an increase in permanent partial
             disability must be accompanied by substantial evidence of
             new and changed circumstances which have developed since
             the time of the hearing on the original or last determination.

             ***

             (7) Where the application is for an increase in the percentage
             of permanent partial disability, no sooner than sixty days
             from the date of mailing of the application to the employer
             and the employer's representative, the applicant shall either
             be examined, or the claim referred for review by a physician
             designated by the bureau. * * * The bureau physician shall
             file a report of such examination or review of the record,
             together with an evaluation of the degree of impairment, as
             part of the claim file. Either the employee or the employer
             may submit additional medical evidence following the
             examination by the bureau medical section * * *.

      {¶ 38} In State ex rel. Gen. Motors Corp., Chevrolet Motor Div. v. Indus. Comm.,
54 Ohio St.2d 333, 335 (1978), it was held that medical reports concluding percentage
increases beyond percentages previously reported in connection with the original claim
are not an improper consideration under R.C. 4123.57 of "new and changed
circumstances developing since the time of the hearing on the original or last
determination."
      {¶ 39} In State ex rel. Core Molding Technologies v. Indus. Comm., 10th Dist. No.
03AP-443, 2004-Ohio-2639, this court had occasion to apply the Gen. Motors holding to
a commission award of an increase in PPD that was under challenge there.
      {¶ 40} In the Core Molding case, Kathy Yarger obtained a 1 percent PPD award on
her initial application for a determination of her percentage of PPD. The 1 percent award
was based upon the report of bureau doctor David C. Randolph, M.D., who examined
Yarger in March 2002 and opined that her permanent impairment was 1 percent of the
body as a whole.
No. 12AP-862                                                                           12


        {¶ 41} Thereafter, in May 2002, Yarger was examined at her own request by Nancy
Renneker, M.D., who opined that Yarger had sustained an 11 percent whole person
impairment due to the industrial injury.
        {¶ 42} In June 2002, Yarger filed an application for an increase in her percentage
of PPD.
        {¶ 43} In September 2002, Dr. Cantor reviewed the reports of Drs. Renneker and
Randolph. In his report, Dr. Cantor opined that Yarger had an 11 percent permanent
whole person impairment based upon the findings contained in the reports of the two
examining physicians.
        {¶ 44} In September 2002, the bureau issued a tentative order finding an 11
percent PPD, an increase of 10 percent based upon Dr. Cantor's report. Core Molding
timely objected to the tentative order.
        {¶ 45} In November 2002, at her employer's request, Yarger was again examined
by Dr. Randoph who issued a report that his "original impairment rating of 1% of the
whole person remains unchanged." Id. at ¶ 22. He also criticized Dr. Renneker's report
on grounds that it was allegedly based upon non-allowed conditions.
        {¶ 46} Ultimately, following a January 2003 hearing, an SHO issued an order
setting the percentage of PPD at 8 percent which is a 7 percent increase from the original
award. The only explanation given in the order for the increase in the award is the
statement "this order is based upon the reports of Drs. Cantor, Randolph and Renneker."
Id. at ¶ 22.
        {¶ 47} In Core Molding, this court found that, in her May 2002 report, Dr.
Renneker found less range of motion in Yarger's right shoulder than previously had been
found by Dr. Randolph in his March 2002 report:
               This constituted some evidence that the injured worker's
               shoulder had significantly less range of motion as of May 9,
               2002, than it did on March 5, 2002, and that the allowed
               conditions were progressively worse at the time of the later
               examination.

Id. at ¶ 5.
        {¶ 48} In Core Molding, this court, speaking through its magistrate states:
No. 12AP-862                                                                        13


              [T]his court has had previous occasion to address the
              applicability of [State ex rel. Noll v. Indus. Comm., 57 Ohio
              St.3d 303] to the commission's determination of permanent
              partial disability. In State ex rel. Combs v. Indus. Comm.
              (Aug. 16, 2001), Franklin App. No. 00AP-1145, this court,
              with one judge dissenting, stated:

              The commission properly could indicate that it based its
              decision on the medical reports it noted in its order, as the
              commission evaluated the reports and the percentages of
              disability stated in them, and then used that information to
              arrive at a figure within the range of the reports. Moreover,
              in these circumstances, the commission is not required to
              explain exactly how it calculates an impairment rating.

              Here, the SHO's order of January 8, 2003 states reliance on
              the reports of Drs. Cantor, Randolph and Renneker in
              determining that claimant has an eight percent permanent
              partial disability. Drs. Renneker and Cantor rated claimant's
              permanent impairment at 11 percent, while Dr. Randolph
              rated the impairment at one percent.

              The commission's determination of eight percent is within
              the range of percentages of the reports relied upon. The
              commission was not required to explain how it arrived at the
              eight percent. In short, the commission's award of an eight
              percent permanent partial disability does not violate Noll.

Id. at ¶ 37-39.
       {¶ 49} Here, the record contains the order of the DHO following a February 26,
2002 hearing that resulted in an award of a 2 percent increase in the percentage of PPD
for a total of 15 percent. The order states that it "is based upon the report of Dr(s).
Williams and Grunstein."
       {¶ 50} The record contains the August 13, 2001 report of Perry Williams, M.D.,
upon which the DHO's order of February 26, 2002 presumably relies. In his one-page
narrative report, Dr. Williams opines:
              In my opinion, this individual falls into lumbosacral category
              III equating to a 10% whole person impairment.
No. 12AP-862                                                                              14


       {¶ 51} Comparing the report of Dr. Williams to the report of Dr. Iemma at issue
here, we find that Dr. Iemma also placed claimant at "DRE lumbar category 3" but, unlike
Dr. Williams, added impairment due to "chronic pain." Again, Dr. Iemma states:
              Using AMA Guidelines fifth edition for the lumbosacral
              spine, pages 384-388, section 15.4, table 15.3, he is a DRE
              lumbar category 3 because of signs of radiculopathy with
              decreased sensation which is a 13% W.P.I. He also has
              chronic pain, which is an additional 3% W.P.I.

              Percentage of impairment, based on the AMA Guidelines
              fifth edition revised, the total W.P.I. for this claimant is 16%.
              Please note that he had a previous 15%, therefore, today's
              final W.P.I. is 1%.

       {¶ 52} Thus, the comparison shows that Dr. Iemma reached the 16 percent
impairment rating by adding "chronic pain."
       {¶ 53} Relator challenges Dr. Iemma's "chronic pain" finding on several grounds.
First, relator contends that "chronic pain" is a subjective finding, not an objective finding
and thus pain cannot be used by the physician in his determination of impairment. The
magistrate disagrees with relator's contention.
       {¶ 54} It is well settled that pain is a factor to be considered in determining
medical impairment. State ex rel. Paraskevopoulos v. Indus. Comm., 83 Ohio St.3d 189
(1998); State ex rel. Unger v. Indus. Comm., 70 Ohio St.3d 672 (1994); State ex rel. Bray
v. Indus. Comm., 10th Dist. No. 02AP-939, 2003-Ohio-2885.
       {¶ 55} Secondly, relator argues that claimant suffers pain due to the disallowed
herniated disc at L4-5, and thus Dr. Iemma was required to specify in his report that the
"source" of the chronic pain is the allowed herniated disc L5-S1 and not the disallowed
herniated disc at L4-5. (Relator's brief, at 14.) According to relator, it was an abuse of
discretion for the commission to "infer" from the report that the "chronic pain" is due to
the 1990 injury. (Relator's brief, at 14.) It can be observed that Dr. Iemma's report does
not refer to the disallowed condition nor does it specifically indicate that the "chronic
pain" is not due to the disallowed herniated disc at L4-5. Nevertheless, the magistrate
disagrees with relator's second argument.
No. 12AP-862                                                                                15


       {¶ 56} In the heading of his report, Dr. Iemma correctly lists the claim number and
the date of injury. He then lists the allowed conditions of the claim which relator does not
dispute here. Given that scenario, it is permissible to infer that Dr. Iemma's "chronic
pain" finding is related solely to the allowed conditions of the claim. That Dr. Iemma does
not mention the disallowed condition was a factor to be considered by the commission
when it weighed the medical reports before it. Presumably, in the exercise of its fact
finding discretion, the commission was satisfied that Dr. Iemma's impairment rating was
confined to the allowed conditions of the claim.
       {¶ 57} Moreover, relator's second argument suggests incorrectly that claimant has
the burden to prove that his impairment is not due to a disallowed or non-allowed
condition. Relator does not have such burden. State ex rel. Ignatious v. Indus. Comm.,
99 Ohio St.3d 285, 2003-Ohio-3627.
       {¶ 58} Based upon the above analysis, the magistrate concludes that the report of
Dr. Iemma provides some evidence supporting the award of an increase in the percentage
of PPD.
       {¶ 59} 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).
