[Cite as State ex rel. Owens v. Indus. Comm., 2018-Ohio-1160.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State ex rel. John R. Owens,                           :

                Relator,                               :

v.                                                     :             No. 17AP-97

Industrial Commission of Ohio et al.,                  :          (REGULAR CALENDAR)

                Respondents.                           :



                                           D E C I S I O N

                                     Rendered on March 29, 2018


                On brief: Law Offices of Kurt M. Young, LLC, Kurt M.
                Young, and Emil G. Gravelle, III, for relator.

                On brief: Michael DeWine, Attorney General, and John
                Smart, for respondent Industrial Commission of Ohio.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.

        {¶ 1} Relator, John R. Owens, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order denying him reimbursement for a prescription medication ("Voltaren
gel") and to enter a new order that requires the commission to reimburse him for that
medication.
        {¶ 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 the commission
did not violate relator's due process rights during a drug utilization review of relator's
No. 17AP-97                                                                                  2


medications. The magistrate further found that Dr. Bridger's report constituted some
evidence supporting the commission's decision to deny reimbursement for the Voltaren gel.
Therefore, the magistrate has recommended that we deny relator's request for a writ of
mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision. In his first objection,
relator contends that his due process rights were violated because a nurse working for the
employer's managed care organization ("MCO") initiated the review of relator's
medications. We disagree.
       {¶ 4} Because relator was provided with reasonable notice and a reasonable
opportunity to be heard, we agree with the magistrate that the commission did not violate
relator's due process rights. State ex rel. Charles Steinbrunner v. Indus. Comm., 10th Dist.
No. 05AP-626, 2006-Ohio-3444, ¶ 16, quoting State ex rel. Finley v. Dusty Drilling, Co.,
Inc., 2 Ohio App.3d 323, 324-25 (10th Dist.1981) (" '[p]rocedural due process includes the
right to a reasonable notice of hearing as well as a reasonable opportunity to be heard' ").
Following the MCO's nonbinding decision, relator received two administrative hearings on
the drug reimbursement issue. The fact that the employer's MCO initiated the drug
utilization review, rather than the bureau or the commission, does not impact the due
process analysis. Relator had notice and participated in multiple levels of administrative
review. Therefore, we overrule relator's first objection.
       {¶ 5} In his second objection, relator contends that Dr. Bridger's report is not some
evidence on which the commission could rely because it allegedly reflects an "uncertain
opinion." Again, we disagree.
       {¶ 6} Contrary to relator's assertion, we fail to discern uncertainty in Dr. Bridger's
report. Despite Dr. Bridger's use of the word "appears," we agree with the magistrate that
Dr. Bridger's report clearly indicates he believed prescribing Voltaren gel was unnecessary
given the Celebrex prescription. Because Dr. Bridger's report is some evidence on which
the commission could rely, the commission did not abuse its discretion in denying relator's
request for reimbursement for the Voltaren gel. Therefore, we overrule relator's second
objection.
       {¶ 7} 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
No. 17AP-97                                                                             3


the magistrate's decision as our own, including the findings of fact and conclusions law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
                                                              Writ of mandamus denied.

                            TYACK and SADLER, JJ., concur.
No. 17AP-97                                                                            4


                                         APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. John R. Owens,             :

              Relator,                       :

v.                                           :                   No. 17AP-97

Industrial Commission of Ohio, et al.,      :              (REGULAR CALENDAR)

              Respondents.                   :



                             MAGISTRATE'S DECISION

                              Rendered on September 26, 2017


              Law Offices of Kurt M. Young, LLC, Kurt M. Young, and Emil
              G. Gravelle, III, for relator.

              Michael DeWine, Attorney General, and John Smart, for
              respondent Industrial Commission of Ohio.


                                     IN MANDAMUS

       {¶ 8} Relator, John R. Owens, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied him reimbursement for a prescription
medication, and ordering the commission to reimburse him for that medication.
Findings of Fact:
       {¶ 9} 1. Relator sustained a work-related injury on July 9, 2014 and his workers'
compensation claim has been allowed for: "left shoulder region contusion; subscapularis
tendon tear partial left."
No. 17AP-97                                                                               5


       {¶ 10} 2. In June 2015, relator began treating with Nathan Hill, M.D., a pain
specialist.
       {¶ 11} 3. Although physical therapy provided some relief, relator continued to
have muscle pain around his left shoulder. As a result, Dr. Hill prescribed Voltaren topical
gel, a non-steroidal anti-inflammatory drug ("NSAID").
       {¶ 12} 4. Because relator's pain was not subsiding, Dr. Hill submitted a C-9 for
shoulder injections and a 30-day trial of a tens unit. Dr. Hill also prescribed relator
Celebrex, 200 milligrams, and Ultram, 50 milligrams, and continued him using the
Voltaren gel. Celebrex is also a NSAID.
       {¶ 13} 5. 1-888-Ohio Comp, the employer's managed care organization ("MCO"),
denied the request for additional occupational therapy, a tens unit, cortisone injections,
and a subsequent MRI of relator's shoulder. The MCO provided the following rationale:
              Based on your request for services, review of medical records
              and consideration of nationally accepted guidelines, it is the
              opinion of this MCO that the requested services do not appear
              to be medically indicated or appropriate. Injured worker has
              been previously approved for conservative treatment of
              physical therapy 16 visits total. The physical therapy notes
              dated 10/7/2014 state the injured worker reports pain most of
              the time is 1/10 on scale and shows compliance with home
              exercise program and good understanding of exercise
              program, he will continue to strengthen at home. Injured
              worker has had a lapse of treatment of over 10 months. This
              would suggest that injury has been resolved. Fails Miller
              criteria #2 and #3.

              ***

              Based on your request for services, review of medical records
              and consideration of nationally accepted guidelines, it is the
              opinion of this MCO that the requested services do not appear
              to be medically indicated or appropriate. Injured worker has
              been authorized for 2 previous left shoulder MRI's. Injured
              worker was last seen for shoulder on 11/4/2014 prior to recent
              notes from Dr. Hill dated 7/3/2015. Injured worker has had a
              lapse of treatment of over 10 months. This would suggest that
              injury has been resolved. Fails Miller criteria #2 and #3.
No. 17AP-97                                                                             6


       {¶ 14} 6. Relator challenged the denial of services and the matter was heard before
a district hearing officer ("DHO") on November 12, 2015. The DHO granted relator's
request for two shoulder injections, denied the requested occupational therapy evaluation
and treatment, and the requested tens unit trial. At the hearing, counsel dismissed the
requested right shoulder MRI.
       {¶ 15} 7. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on January 6, 2016. The SHO modified the prior DHO order and authorized the
requested two left shoulder injections as well as the occupational therapy evaluation and
treatment. The SHO did deny the 30-day trial of the tens unit.
       {¶ 16} 8. On April 6, 2016, "Jill P. RN," who works for the MCO, requested a
Medco-34 to review the reasonableness, necessity, and appropriateness of the
prescription medications relator was using. The MCO notified relator, through counsel,
of the drug utilization review.
       {¶ 17} 9. Matthew A. Bridger, M.D., reviewed relator's relevant medical records
and performed a drug utilization review. In his April 30, 2016 report, Dr. Bridger
identified the allowed conditions in relator's claim as follows:
              The allowed condition for the use of the medications is
              S46912A - "strain Of Unspecified Muscle, Fascia And Tendon
              At Shoulder And Upper Arm Level, Left Arm, Initial
              Encounter." This diagnosis is also used for additional
              allowance approval for partial subscapularis tear, left
              shoulder. The diagnosis was confirmed on an 08/2014 MRI.

       {¶ 18} Thereafter, Dr. Bridger stated:
              The treatment has not involved injections or surgery, but
              treated conservatively with PT and medications. The other
              diagnoses are soft tissue injury and have resolved MONTHS
              ago. The [Injured Worker] has been released to full duty for
              months. There appears to be redundancy of NSAIA use with
              celebrex and voltaren (topical). Recent note from Dr. Hill has
              refills for celebrex. The cost of the medications is not included
              in the pharmacy materials, but is assumed to be within the
              standard of care for the indicated medications. It is with a
              reasonable degree of medical certainty that this physician (13
              years of occupational medicine experience) opines:
No. 17AP-97                                                                             7


              (1) The medical reviewed SUPPORTS adequate prescribing
              physician information to medically justify the use of Celebrex
              and ultram being utilized by the injured worker as medically
              necessary, appropriate and reasonably related to treatment of
              symptoms associated with the allowed condition for this
              claim. The medical reviewed DOES NOT SUPPORT adequate
              prescribing physician information to medically justify the use
              of voltaren being utilized by the injured worker as medically
              necessary, appropriate nor reasonably related to treatment of
              symptoms associated with the allowed condition for this
              claim.

              (2) The medical reviewed SUPPORTS the specific drug dosing
              and duration for celebrex and ultram to be reasonably related,
              medically reasonable and appropriate for the allowed
              condition(s) for this claim. The medical reviewed DOES NOT
              SUPPORT the specific drug dosing and duration for voltaren
              to be reasonably related, medically reasonable and
              appropriate for the allowed condition for this claim.

              (3) There are NO potentially harmful effects for the use and
              compliance monitoring by a pain specialist for the
              continuance of the listed medications. There is NO
              documentation to support redundant use of NSAIA. The
              combination of currently prescribed indicated drugs is in
              compliance with best practices for the allowed condition in
              this claim.

(Emphasis sic.)

      {¶ 19} 10. In an order mailed May 5, 2016, the Ohio Bureau of Workers'
Compensation ("BWC") denied reimbursement for the Voltaren gel based on the
physician review of Dr. Bridger.
      {¶ 20} 11. Relator appealed and the matter was heard before a DHO on June 15,
2016. The DHO affirmed the order of the administrator and denied reimbursement for
the use of Voltaren gel based on the report of Dr. Bridger. Thereafter, the DHO addressed
relator's argument that Dr. Bridger's report and the Medco-34 request for drug utilization
review should be dismissed because it was not signed by the MCO's medical director. The
DHO rejected that argument, stating:
              Preliminarily, the District Hearing Officer notes the Injured
              Worker's argument that Dr. Bridger's report and the MEDCO-
No. 17AP-97                                                                               8


              34 Managed Care Organization (MCO) Request for Drug
              Utilization Review (DUR) should be dismissed, as the
              MEDCO-34 form was not signed by the MCO medical
              director. The Injured Worker's representative based this
              argument on Chapter 7 of a Bureau of Workers' Compensation
              publication which was not cited by name. Additionally, the
              Injured Worker did not provide the Hearing Officer with a
              copy of such authority. As this issue was reviewed by Dr.
              Bridger, and as he duly signed his 04/30/2016 report, the
              District Hearing Officer rejects the Injured Worker's
              argument to dismiss the MEDCO-34 at issue.

       {¶ 21} 12. Relator appealed and the matter was heard before an SHO on August 5,
2016. The SHO affirmed the prior DHO order and denied reimbursement for relator's
Voltaren gel based on the report of Dr. Bridger. The SHO also rejected relator's argument
concerning the validity of the review, stating:
              The Staff Hearing Officer rejects the argument of the Injured
              Worker's representative that Dr. Bridger's report is not some
              evidence on which to rely as the Injured Worker's
              representative indicates that the guidelines for obtaining a
              drug utilization review were not followed in this claim. The
              Staff Hearing Officer finds no mandatory requirement that
              the request for a drug utilization review must be signed by a
              managed care organization physician or medical director. The
              request was made by Jill P., R.N. This R.N. completed claims
              notes which are contained in the claim file dated 04/06/2016
              wherein R.N. "Jill" explains the need for the drug review
              request. The request was forwarded to Dr. Bridger to do the
              drug utilization review. Dr. Bridger signed his report which
              contains his medical opinion and Dr. Bridger is a duly licensed
              medical doctor. As such, his review is found to be some
              evidence on which the Industrial Commission can rely.

       {¶ 22} 13. Relator's appeal was refused by order of the commission mailed
August 31, 2016.
       {¶ 23} 14. Thereafter, relator filed this instant mandamus action in this court.
Conclusions of Law:
       {¶ 24} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
No. 17AP-97                                                                                 9


        {¶ 25} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
        {¶ 26} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley
v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists
where the relator shows that the commission abused its discretion by entering an order
which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm.,
26 Ohio St.3d 76 (1986). On the other hand, where the record contains some evidence to
support the commission's findings, there has been no abuse of discretion and mandamus
is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987).
Furthermore, questions of credibility and the weight to be given evidence are clearly
within the discretion of the commission as fact finder. State ex rel. Teece v. Indus.
Comm., 68 Ohio St.2d 165 (1981).
        {¶ 27} Relator makes the following two arguments: (1) he was denied due process
of law when the commission processed the Medco-34 drug utilization review ("DUR")
request when it was not submitted pursuant to the guidelines of the Ohio Administrative
Code; and (2) the commission abused its discretion when it decided not to reimburse
relator for the Voltaren gel.
        {¶ 28} Relator is correct to assert that due process rights are implicated in
administrative proceedings such as those before the commission. As this court explained
in State ex rel. Steinbrunner v. Indus. Comm., 10th Dist. No. 05AP-626, 2006-Ohio-
3444:
              As applied to proceedings before the commission,
              "[p]rocedural due process includes the right to a reasonable
              notice of hearing as well as a reasonable opportunity to be
              heard." Id. at 324-325. "Furthermore, the right to a
              reasonable opportunity to be heard includes reasonable notice
              of the time, date, location and subject matter of the hearing."
              State ex rel. LTV Steel Co. v. Indus. Comm. (1995), 102 Ohio
No. 17AP-97                                                                              10


               App.3d 100, 103-104, 656 N.E.2d 1016. Without reasonable
               notice of the hearing's subject matter, a party's right to appear
               and present well-supported and developed arguments
               endorsing his position is compromised.

Id. at ¶ 16.

       {¶ 29} In support of his argument that the drug utilization review was not properly
before the commission, relator cites R.C. 4121.32(C)(2), which provides:
               (C) The bureau and commission jointly shall develop, adopt,
               and use a policy manual setting forth the guidelines and bases
               for decision-making for any decision which is the
               responsibility of the bureau, district hearing officers, staff
               hearing officers, or the commission. Guidelines shall be set
               forth in the policy manual by the bureau and commission to
               the extent of their respective jurisdictions for deciding at least
               the following specific matters:

               ***

               (2) Relationship of drugs to injury.

               Relator also cites Ohio Adm.Code 4123-6-21(P), which provides:
               The bureau may contract with a pharmacy benefit manager to
               perform drug utilization review and on-line bill processing,
               maintain a pharmacy provider network and prior
               authorization program for medications, and provide
               management reports. The bureau or its vendor may also
               contract rebate agreements with drug manufacturers. The
               bureau may utilize other services or established procedures of
               the pharmacy benefits manager which may enable the bureau
               to control costs and utilization and detect fraud.

       {¶ 30} Relator argues that his due process rights were violated when a nurse
working for the employer's MCO initiated the review of the medications which relator was
taking. Contrary to relator's assertions, neither the BWC nor the commission initiated
the review of his medications and, as such, the statute and code provisions on which he
relies do not apply here. To the extent that there is any due process argument to be made,
the magistrate specifically notes that relator received two hearings on the matter. Clearly,
relator was provided with notice and an opportunity to be heard and, as such, there was
no due process violation.
No. 17AP-97                                                                             11


      {¶ 31} Relator's second argument is that the commission abused its discretion
when it denied reimbursement for the Voltaren gel. Here, the commission relied on the
review of Dr. Bridger who specifically opined that there appeared to be redundancy
through the use of Celebrex and Voltaren gel, both NSAIDS, and that the medical evidence
review did not support the justification of using the Voltaren gel in addition to the
Celebrex. The magistrate finds that the report of Dr. Bridger does constitute some
evidence on which the commission could rely and, as such, relator has not demonstrated
that the commission abused its discretion.
      {¶ 32} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied reimbursement
for Voltaren gel and this court should deny his request for a writ of mandamus.

                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA




                              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).
