[Cite as State ex rel. Huntington Natl. Bank v. Vogt, 2017-Ohio-2628.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel.                                       :
Huntington National Bank,
                                                        :
                 Relator,
                                                        :
v.                                                                          No. 16AP-477
                                                        :
Kelly A. Vogt                                                            (REGULAR CALENDAR)
and                                                     :
Industrial Commission of Ohio,
                                                        :
                 Respondents.
                                                        :


                                            D E C I S I O N

                                       Rendered on May 2, 2017


                 On brief: Michael Soto, for relator.

                 On brief: Urban Co., LPA, and Patrick E. Parry, for
                 respondent, Kelly A. Vogt.

                 On brief: Michael DeWine, Attorney General, and
                 Natalie J. Tackett, for respondent, Industrial Commission of
                 Ohio.

                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

BRUNNER, J.
        {¶ 1} Relator, Huntington National Bank ("Huntington"), has filed this original
action requesting this Court to issue a writ of mandamus ordering respondent, Industrial
Commission of Ohio ("the commission"), to vacate the portion of its order that terminated
the award to respondent, Kelly A. Vogt, of compensation for temporary total disability
("TTD") effective September 17, 2015, to find that the appropriate date of termination of
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16AP-477
TTD compensation is January 5, 2015, and to declare an overpayment of all TTD
compensation paid by Huntington after January 5, 2015.
      {¶ 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 the appended decision,
including findings of fact and conclusions of law, and decided that this Court should deny
Huntington's request for a writ of mandamus.
      {¶ 3} Huntington has filed an objection to the magistrate's decision.
      {¶ 4} After a review of the magistrate's decision, an independent review of the
record pursuant to Civ.R. 53, and due consideration of the objection, we overrule
Huntington's objection and adopt the magistrate's decision including findings of fact and
conclusions of law as our own.
I. FACTS AND PROCEDURAL HISTORY
      {¶ 5} On December 22, 2014, Vogt received an injury in the course of and arising
out of her employment as a personal banker with Huntington. Huntington, a self-insured
employer, certified Vogt's claim for "head laceration," and voluntarily began paying
compensation beginning December 23, 2014. Also on December 23, 2014, Vogt was first
evaluated by E. Lee Foster, D.O. Dr. Foster continued to treat Vogt, noting her complaints
of headaches, migraines, nausea, vomiting, light-headedness, being off balance and
having trouble focusing, and he opined that she was unable to return to work.
      {¶ 6} On January 8, 2015, Dr. Foster completed a C-84 supporting payment of
TTD compensation, based on the head laceration, beginning January 6, 2015 and
continuing. On May 5, 2015, Vogt moved for her claim to be allowed for additional
conditions, again based on Dr. Foster's report. Nothing in the record indicates that
Huntington disputed Dr. Foster's reports. Rather, the record shows that Huntington
continued paying TTD compensation to Vogt.
      {¶ 7} At Huntington's request, Vogt was examined by Lisa Kurtz, M.D., who
issued a report on June 29, 2015 in which she concluded: (1) Vogt's allowed condition had
reached maximum medical improvement ("MMI"); (2) the additional conditions should
not be allowed; and, (3) no further treatment was warranted.
                                                                                              3
16AP-477
       {¶ 8} Huntington cited Dr. Kurtz' report in a motion filed July 8, 2015 to
terminate ongoing TTD compensation on Vogt's claim. The motion was referred to the
commission on the issue of terminating TTD compensation.
       {¶ 9} Vogt's motion for additional allowances was heard by a district hearing
officer ("DHO") on September 17, 2015, at which time Vogt withdrew her claim for all but
one additional condition and the DHO specifically disallowed that condition. The DHO
also considered Huntington's motion to terminate Vogt's TTD compensation based on
Dr. Kurtz' June 29, 2015 report.     The DHO terminated TTD compensation effective
September 17, 2015, the date of the hearing. Huntington argued that the TTD payments
should be terminated retroactive to January 5, 2015, the date of Dr. Foster's office notes
indicating that Vogt's head laceration had healed.       The DHO rejected Huntington's
argument as being inconsistent with the holding in State ex rel. Russell v. Indus. Comm.,
82 Ohio St.3d 516 (1998), which provides that ongoing TTD compensation benefits be
terminated at hearing. The DHO stated further that the commission lacked jurisdiction to
address the merits of the retroactive termination of TTD benefits because no motion had
been filed requesting the commission to exercise its continuing jurisdiction on this issue.
       {¶ 10} A staff hearing officer ("SHO") heard Vogt and Huntington's appeals of the
DHO's order. The SHO vacated the DHO's order but specifically disallowed Vogt's claim
for an additional allowance, denied her request for continued treatment, terminated her
TTD compensation effective September 17, 2015, and again rejected Huntington's
argument that the ongoing TTD compensation should be terminated as of January 5,
2015. The SHO noted that Huntington had continued to pay TTD compensation, and
further, Huntington's motion to terminate the ongoing TTD compensation had been
referred to the commission. Relying on R.C. 4123.56, Industrial Commission Resolution
R98-1-04, and Russell, the SHO found that September 17, 2015, the date of the DHO
hearing, was the appropriate termination date of the ongoing TTD compensation.
       {¶ 11} Further appeals by Vogt and Huntington were refused by order of the
commission. Huntington filed this mandamus action on June 23, 2016.
       {¶ 12} The magistrate recommends in the appended decision that this Court deny
Huntington's request for a writ of mandamus because it did not demonstrate that the
                                                                                           4
16AP-477
commission abused its discretion in terminating the ongoing payment of TTD
compensation to Vogt effective September 17, 2015, the date of the DHO hearing.
II. OBJECTION TO THE MAGISTRATE'S DECISION
       {¶ 13} Huntington presents for our review one objection to the magistrate's
decision:
              The Magistrate erred in finding the commission did not abuse
              its discretion by applying the law from Russell and
              terminating TT[D] effective 9/17/15. This finding is contrary
              to Ohio law concerning proof required to support TT[D].

III. DISCUSSION
       {¶ 14} To be entitled to relief in mandamus, Huntington must establish that it has
a clear legal right to relief, 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), paragraph nine of
the syllabus. To do so, Huntington must demonstrate that the commission abused its
discretion, and "in this context, abuse of discretion has been repeatedly defined as a
showing that the commission's decision was rendered without some evidence to support
it." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20 (1987). 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). Thus, to be successful in this mandamus action,
Huntington must show that the commission's decision is not supported by some evidence
in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). And
questions of credibility and weight to be given evidence are clearly within the discretion of
the commission as the fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165
(1981).
       {¶ 15} The magistrate's decision includes a comprehensive discussion of the
statutory and case law regarding entitlement to TTD compensation, including limitations
on and termination of awards of TTD compensation. The magistrate's decision references
the holding of the Supreme Court of Ohio in Russell, reaffirming earlier decisions that
once the payment of TTD compensation has begun and a claimant's entitlement to that
compensation has been established, TTD compensation may not be terminated without
                                                                                      5
16AP-477
proper notice and a hearing. The termination date for an award of TTD compensation is
the date of the hearing.
       {¶ 16} The magistrate found that Vogt's entitlement to TTD compensation had
been established and that Huntington voluntarily paid the TTD benefits on an ongoing
basis without the commission ordering such payment. The magistrate determined that
"the commission did not abuse its discretion by applying the law from Russell and
terminating [Vogt's] TTD compensation effective September 17, 2015, the date of the
hearing before the DHO." (App'x at ¶ 44.)
       {¶ 17} Based on the facts and applicable law, the magistrate concluded that
Huntington has not demonstrated that the commission abused its discretion, and this
Court should deny the requested writ.
       {¶ 18} Huntington argues that Vogt's situation never reached the point at which
the Russell holding would have applied. Huntington contends that Russell is limited to
situations where there is conflicting medical evidence concerning whether a claimant has
reached MMI. Huntington argues that Vogt's case concerns "the lack of sufficient proof
submitted by Vogt in support of payment of [TTD]," rather than conflicting medical
reports concerning MMI.      (Dec. 5, 2016 Huntington's Obj. to Mag. Decision at 8.)
Huntington maintains that it was Vogt's burden "to submit reliable proof of [TTD] based
solely on the" allowed condition, and that she was not entitled to payment of TTD absent
such proof. Id. Huntington cites this Court's decision in State ex rel. Walls v. Karl HC
LLC, 10th Dist. 1oAP-866, 2011-Ohio-5765, to support its argument.
       {¶ 19} Essentially, Huntington wants this Court to grant it a "do-over" in this
matter by re-examining the validity of the ongoing TTD compensation to Vogt. But such a
re-examination would necessitate the commission having exercised its continuing
jurisdiction on this issue. Nothing in the record indicates that Huntington sought to
invoke the commission's continuing jurisdiction to ascertain Vogt's entitlement to or to
retroactively terminate TTD compensation for any reason. Consequently, this Court lacks
jurisdiction to consider the issue now.
       {¶ 20} We are not persuaded by Huntington's arguments, nor do we do find our
holding in Walls, applicable to the facts here.    At issue in Walls was whether the
commission had abused its discretion in finding that the claimant's evidence did not
                                                                                         6
16AP-477
support a new period of TTD compensation, not ongoing payment of TTD compensation.
The Walls court concluded the commission had not abused its discretion.
       {¶ 21} We agree with the magistrate that the commission properly applied the law
in this case. The Russell decision clearly addresses the situation before us:
              This court has unwaveringly held (1) that continuing TTD
              compensation may not be terminated prior to a hearing before
              a commission hearing officer so long as claimant's attending
              physician continues to certify TTD, (2) that the hearing officer
              may not terminate the claimant's TTD retroactive to a date
              prior to the date of the hearing, (3) that claimant is entitled to
              all compensation paid to the date of the hearing, and (4) that
              any eventual discounting of the attending physician's reports
              certifying TTD does not transform those payments into a
              recoupable overpayment. State ex rel. MTD Products, Inc. v.
              Indus. Comm. (1996), 76 Ohio St.3d 593, 669 N.E.2d 846;
              State ex rel. Crabtree v. Ohio Bur. of Workers' Comp. (1994),
              71 Ohio St.3d 504, 644 N.E.2d 361; AT & T Technologies, Inc.
              v. Indus. Comm. (1993), 68 Ohio St.3d 55, 623 N.E.2d 63;
              State ex rel. Jeep Corp. v. Indus. Comm. (1991), 62 Ohio St.3d
              64, 577 N.E.2d 1095; State ex rel. McGinnis v. Indus. Comm.
              (1991), 58 Ohio St.3d 81, 568 N.E.2d 665; State ex rel.
              Youghiogheny & Ohio Coal Co. v. Kohler (1990), 55 Ohio
              St.3d 109, 564 N.E.2d 76.
Russell at 519.
IV. CONCLUSION
       {¶ 22} Upon review of the magistrate's decision, an independent review of the
record, and due consideration to Huntington's objection, we find the magistrate has
properly stated the salient facts and applied the appropriate law. Therefore, we overrule
Huntington's objection to the magistrate's decision and adopt the decision as our own,
including the findings of facts and conclusions of law therein. In accordance with the
magistrate's decision, the requested writ of mandamus is denied.
                                                                       Objection overruled;
                                                                 writ of mandamus denied.

                            KLATT and SADLER, JJ., concur.
                                                                                       7
16AP-477
                                      APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


The State ex rel.                           :
Huntington National Bank,
                                            :
             Relator,
                                            :
v.                                                              No. 16AP-477
                                            :
Kelly A. Vogt                                              (REGULAR CALENDAR)
and                                         :
Industrial Commission of Ohio,
                                            :
             Respondents.
                                            :



                        MAGISTRATE'S DECISION

                            Rendered on November 14, 2016



             Michael Soto, for relator.

             Urban Co., LPA, and Patrick E. Parry, for respondent,
             Kelly A. Vogt.

             Michael DeWine, Attorney General, and Natalie J. Tackett,
             for respondent Industrial Commission of Ohio.


                                   IN MANDAMUS

      {¶ 23} Relator, Huntington National Bank, 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 terminated the payment of temporary total
disability ("TTD") compensation to respondent, Kelly A. Vogt ("claimant"), effective
                                                                                           8
16AP-477
September 17, 2015, and ordering the commission to terminate her benefits effective
January 5, 2015 instead.
Findings of Fact:
       {¶ 24} 1. Claimant sustained a work-related injury on December 22, 2014 while
working as a personal banker for relator.
       {¶ 25} 2. While in the vault room putting away a cash shipment, claimant stood up
and hit the top of her head on one of the vault doors. Claimant sustained a laceration to
her head which began bleeding, indicated that she became nauseated, and nearly fainted.
       {¶ 26} 3. Claimant presented at the emergency room complaining of headache,
nausea, and feeling dazed. The head laceration did not require stitches. A subsequent CT
scan was performed and reported as normal. Claimant was released in stable condition
and advised to return to work the next day.
       {¶ 27} 4. Claimant was evaluated by E. Lee Foster, D.O., who first saw her the next
day on December 23, 2014.
       {¶ 28} 5. Relator, a self-insured employer, certified the claim for "head laceration,"
and began paying compensation to claimant beginning December 23, 2014.
       {¶ 29} 6. Dr. Foster continued to note that claimant was having headaches,
migraines, nausea, vomiting, light-headedness, was off balance, and had trouble focusing,
and he opined that she was unable to return to work.
       {¶ 30} 7. On January 8, 2015, Dr. Foster completed a C-84 requesting the payment
of TTD compensation beginning January 6, 2015 and continuing based upon the head
laceration. On the C-84, Dr. Foster indicated that he was also treating claimant for
cerebral concussion, occipital neuralgia, cervical sprain, cervical sprain/strain, and post-
concussion syndrome.
       {¶ 31} 8. On May 5, 2015, claimant filed a C-86 motion asking that her claim be
allowed for the following additional conditions: "headache, chronic migraine, headache
chronic daily, abnormality of gait, cervical strain."
       {¶ 32} 9. Relator continued paying TTD compensation to claimant.
       {¶ 33} 10. Claimant was examined by Lisa Kurtz, M.D. In her June 29, 2015
report, Dr. Kurtz considered whether or not claimant's claim should be allowed for the
additional conditions, discussed the extent of disability, as well as claimant's request for
                                                                                         9
16AP-477
further treatment. Dr. Kurtz opined that the then allowed condition of head laceration
had reached maximum medical improvement ("MMI"), opined that the additional
conditions should not be allowed in claimant's claim, and that no further treatment was
warranted.
       {¶ 34} 11. Claimant's motion seeking additional allowances was heard before a
district hearing officer ("DHO") on September 17, 2015. At that time, claimant withdrew
her request to have her claim additionally allowed for headache, chronic migraine,
headache chronic daily, and abnormality of gait, and the DHO specifically disallowed the
condition of cervical strain.
       {¶ 35} The DHO also considered a motion filed by relator seeking to terminate
claimant's TTD compensation based on the report of Dr. Kurtz. The DHO found the June
29, 2015 report of Dr. Kurtz to be persuasive, that claimant's condition of head laceration
had reached MMI and, thus, terminated her TTD compensation effective the date of the
hearing, September 17, 2015.     Counsel for relator argued that payments should be
terminated effective January 5, 2015, the date of Dr. Foster's office notes which indicated
the head laceration had healed. The DHO rejected this argument, stating:
              At the hearing, Counsel for the Self-insuring Employer
              argued that payments of Temporary Total Disability
              Compensation benefits should be terminated effective
              01/05/2015, the date Dr. Foster's office notes reported a
              healing of the "scalp laceration" recognized in this claim.
              Given the fact that the Self-insuring Employer has paid
              Temporary Total Disability Compensation benefits through
              the date of hearing, the request made by Counsel is not
              consistent with the holding in State ex rel. Russell v. Indus.
              Comm., 82 Ohio St.3d 516, 696 N.E.2d 1069 (1998), which
              explains the requirements for termination of ongoing
              payments of Temporary Total Disability Compensation
              benefits at hearing. What Counsel proposes is a re-
              examination of the validity of payments of Temporary Total
              Disability Compensation benefits previously made by his
              client. Given the fact that no motion requesting the exercise
              of the Industrial Commission's continuing jurisdiction has
              been filed to address this decision, the Industrial
              Commission lacks jurisdiction to address the merits of
              Counsel's argument.
                                                                                           10
16AP-477
       {¶ 36} 12. Both relator and claimant filed an appeal and the matter was heard
before a staff hearing officer ("SHO") on November 5, 2015. Although the SHO vacated
the prior DHO order, the SHO specifically disallowed claimant's claim for cervical strain,
denied her request for continued treatment, terminated her TTD compensation effective
September 17, 2015, and again rejected relator's argument that claimant's TTD
compensation should be terminated as of January 5, 2015, stating:
              The Employer's request to terminate temporary total
              compensation prior to the date of the District Hearing
              Officer hearing is denied.

              The Staff Hearing Officer finds the Injured Worker sustained
              the industrial injury on 12/22/2014 and the Self-Insuring
              Employer voluntarily began to pay temporary total
              compensation benefits in January of 2015. The Self-Insuring
              Employer continued to pay the ongoing temporary total
              compensation benefits and filed a Motion on 07/08/2015
              requesting termination of ongoing temporary total
              compensation benefits. The motion was referred to the
              Industrial Commission on the issue of termination of
              temporary total disability compensation.

              Thus, the Staff Hearing Officer finds the appropriate date of
              termination of ongoing temporary total compensation
              benefits is 09/17/2015, the date of the District Hearing
              Officer hearing. This order is based on R.C. 4123.56,
              Industrial Commission Resolution R98-1-04, and the
              decision set forth in State ex rel. Russell v. Indus. Comm., 82
              Ohio St.3d 516, 696 N.E.2d 1069 (1998).

       {¶ 37} 13. Further appeals by relator and claimant were refused by order of the
commission mailed December 1, 2015.
       {¶ 38} 14. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 39} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 40} 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
                                                                                         11
16AP-477
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).
       {¶ 41} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's
treating physician has made a written statement that claimant is able to return to the
former position of employment; (3) when work within the physical capabilities of
claimant is made available by the employer or another employer; or (4) claimant has
reached MMI. See R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d
630 (1982).
       {¶ 42} Once the payment of TTD compensation has begun and a claimant's
entitlement to that compensation has been established, TTD compensation may not be
terminated without proper notice and a hearing. In State ex rel. Russell v. Indus. Comm.,
82 Ohio St.3d 516 (1998), the Supreme Court of Ohio determined that, the termination
date for an award of TTD compensation is the date of the hearing and not the date of a
doctor's report opining that a claimant's allowed conditions have reached MMI. The
reason for this is simple.
       {¶ 43} Claimants present medical evidence that, due to the allowed conditions in
their claim, they are unable to return to their former position of employment. Once the
commission finds the claimant's evidence to be persuasive, TTD compensation is awarded
and paid while the claimant's treating physician continues to submit medical
documentation of ongoing disability. Often an employer will have a claimant examined
by another physician to determine whether or not the allowed conditions in the claim
have reached MMI. If a physician opines that they have, the employer files a motion to
terminate the compensation, and the matter is set before the commission for a hearing
since there is conflicting medical evidence in the record. At the time of the hearing,
should the commission find the evidence that the allowed conditions have reached MMI
persuasive, TTD compensation is terminated effective the date of that hearing. Were it
otherwise, claimants would find themselves in the untenable position of having to pay
                                                                                        12
16AP-477
back compensation which they believed they were rightfully entitled to, and which they
have been using to pay their own expenses.
      {¶ 44} In the present case, relator began paying claimant TTD compensation
without an order from the commission ordering such payment. Relator, a self-insured
employer, voluntarily paid compensation to claimant without requiring the claimant to
file a motion with the commission. This in no way changes the fact that claimant was
entitled to the TTD compensation and was being paid that compensation by relator.
Claimant's medical evidence of continuing disability was submitted to relator's third-party
administrator and benefits continued to be paid. It was not until June 2015 that relator
had claimant examined by another physician who found that the allowed condition had
reached MMI. Relator cannot use this report or a statement in an office note by relator's
treating physician dated January 5, 2015 indicating that her head laceration was healed to
change the well-settled law. Inasmuch as there is no allegation of fraud on the part of the
claimant, to the extent that relator now wishes it would have paid more attention or had
claimant examined before June 2015, the commission did not abuse its discretion by
applying the law from Russell and terminating claimant's TTD compensation effective
September 17, 2015, the date of the hearing before the DHO.
       {¶ 45} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion, and this court should deny
relator's 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).
