[Cite as State ex rel. McGurr v. Indus. Comm., 2017-Ohio-2941.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                 :
James M. McGurr,
                                                      :
                Relator,
                                                      :
v.                                                                   No. 16AP-430
                                                      :
The Industrial Commission of Ohio                                 (REGULAR CALENDAR)
and Time Warner Cable, Inc.,                          :

                Respondents.                          :




                                           D E C I S I O N

                                      Rendered on May 23, 2017


                On brief: Leah VanderKaay, and Robert C. Ochs, for relator.

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

                                            IN MANDAMUS
DORRIAN, J.
        {¶ 1} In this original action, relator, James M. McGurr, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the January 21, 2016 order of its staff hearing officer which denied relator's June 26, 2015
motion for reimbursement from the self-insured employer, respondent, Time Warner
Cable, Inc. for relator's out-of-pocket costs for the dispensing of the prescription drug
Xaralto on five occasions during the period beginning two years prior to the date of
relator's motion.
        {¶ 2} Pursuant to Civ.R. 53 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
No. 16AP-430                                                                           2


of fact and conclusions of law, which is appended hereto. The magistrate recommends
that this court deny relator's request for a writ of mandamus.
       {¶ 3} No party has filed objections to the magistrate's decision. The case is now
before this court for review.
       {¶ 4} No error of law or other defect is evident on the face of the magistrate's
decision. Therefore, we adopt the findings of fact and conclusions of law contained
therein. Accordingly, relator's request for a writ of mandamus is denied.
                                                                 Writ of mandamus denied.
                           TYACK, P.J., and SADLER, J., concur.
No. 16AP-430                                                                            3


                                     APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel. James M. McGurr,            :

              Relator,                        :

v.                                            :                    No. 16AP-430

The Industrial Commission of Ohio             :               (REGULAR CALENDAR)
and
Time Warner Cable, Inc.,                      :

              Respondents.                    :


                         MAGISTRATE'S DECISION

                              Rendered on February 7, 2017


              Leah P. VanderKaay and Robert C. Ochs, for relator.

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


                                     IN MANDAMUS

       {¶ 5} In this original action, relator, James M. McGurr, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the January 21, 2016 order of its staff hearing officer ("SHO") that denied relator's June
26, 2015 motion for reimbursement from the self-insured employer for relator's out-of-
pocket costs for the dispensing of the prescription drug Xarelto on five occasions during
the period beginning two years prior to the date of relator's motion.
No. 16AP-430                                                                             4


Findings of Fact:
       {¶ 6} 1. On May 24, 1986, relator sustained an industrial injury while employed
as an "installer" for respondent, Time Warner Cable, Inc., a self-insured employer under
Ohio's workers' compensation laws.
       {¶ 7} 2. The industrial claim (No. 916690-22) is allowed for:
              Multiple rib fractures; fractured transverse process L3, L4,
              L5; aggravation of pre-existing lumbar spondylolisthesis;
              gout; laceration right upper arm; pulmonary embolism.

                         Dr. Shoemaker's Medical Records

       {¶ 8} 3. Relator was treated by Kathleen Shoemaker, D.O., from June 2, 2011
through July 15, 2013. Eighty pages of office notes generated by multiple office visits are
contained in the stipulated record.      During the period of her treatment of relator,
Dr. Shoemaker was employed by Pioneer Physicians Network.
       {¶ 9} 4. The record contains a seven-page office note that was generated by an
April 4, 2013 office visit. At that office visit, Dr. Shoemaker stopped the prescription of
Coumadin and replaced it with Xarelto. The office note states:
              Treatment
              [One] Pulmonary embolism and infarction, other

              Stop Coumadin tablet, 3 mg, 1 tab, orally, qd
              Start Xarelto tablet, 20 mg, 1 tab(s), orally, once a day (in the
              evening), 30 day(s), 30, Refills 5

(Emphasis sic.)

       {¶ 10} 5. The record contains a three-page office note from Dr. Shoemaker that
was generated by a May 31, 2013 office visit. Under "Current Medications," there is listed
"Xarelto 20 mg tablet 1 tab(s) once a day (in the evening)."
              Under "Assessments," three items are listed:
              [One] Dizziness - 780.4 (Primary)
              [Two] DVT or embolism of distal lower extremity - 453.42
              [Three] Pulmonary embolism and infarction, other - 415.19

              Under "Treatment," the following are listed:
              [One] Dizziness
No. 16AP-430                                                                          5


              Mildly [improved] however recent medication change by
              neurologist yesterday. To have [follow-up appointment] with
              neurology within the month.

              [Two] DVT or embolism of distal lower extremity
              Continue Xarelto tablet, 20 mg, 1 tab(s), orally, once a day
              (in the evening).

(Emphasis sic.)

                         Dr. McLaughlin's Medical Records
       {¶ 11} 6. Relator was treated by Andrew H. McLaughlin, D.O., from May 8, 2014
to June 16, 2015 while Dr. McLaughlin was employed by Falls Family Practice. Thirty
pages of office notes are contained in the stipulated record.
       {¶ 12} 7. The record contains a three-page office note that was generated by a
May 8, 2014 office visit with Dr. McLaughlin.
       {¶ 13} Under "Assessment Plan," the following are listed:
              Routine general medical exam (V70.0)
              Pulmonary embolism (415.19)
              -greenfield filters
              He is to schedule a follow-up visit with Andrew Hugh
              McLaughlin DO for follow up 1 Week.
              Hypertension Nos (401.9)

       {¶ 14} Under "Medications (Added, Continued or Stopped This Visit)," the
following are listed:
              05/08/2014 Hyzaar 100                      take 1 tablet by oral
                         mg-12.5 mg tablet               route every day

              05/08/2014 Xarelto 20 mg tablet            take 1 tablet by oral
                                                         route every day with
                                                         the evening meal

       {¶ 15} 8. On June 26, 2015, relator filed a motion on form C-86.          Relator
requested as follows:
              Claimant requests that the self insured employer: 1) be
              ordered to reimburse and/or pay for medication previously
              submitted to the claimant's private health insurance plan;
              2) as well as future medication to be prescribed in the future.
              Said medication is for the allowed conditions in the claim.
No. 16AP-430                                                                            6


       {¶ 16} The C-86 form asks the movant to describe the evidence presented in
support of the motion. In response, relator stated:
               See attached Discount Drug Mart pharmacy printout for
               period 8/1/11 to 8/1/14, (underlined medications are the
               only ones pertinent to the allowed conditions in the claim);
               SummaCare EOB's attached; fax transmittal sheet dated
               9/18/14 to the BWC with list of paid prescriptions.

               [A]dditional medical records in the form of office notes and
               pharmacy records to be submitted.

       {¶ 17} 9. In support of his motion, relator submitted a five-page document from
"Discount Drug Mart, Inc. # 64." As relator's counsel indicated at oral argument before
the magistrate, the claim for reimbursement in this action only involves five transactions
involving the dispensing of Xarelto. Those dispensing transactions are as follows:
Drug              Quantity         Date                Patient Paid      Third Party Paid
Xarelto              30            5/08/2014           $297.23              0.00
20 mg tablet

Xarelto              30            11/25/2013          $30.00             $233.50
20 mg tablet

Xarelto              30            10/23/2013          $30.00             $233.50
20 mg tablet

Xarelto              30            8/15/2013           $30.00             $233.50
20 mg tablet

Xarelto              30            7/18/2013           $30.00              $218.65
20 mg tablet

       {¶ 18} As indicated by relator's counsel at oral argument before the magistrate, at
issue in this action is the total out-of-pocket costs to relator for the five dispensing
transactions described above. Thus, the total monetary sum at issue is $417.23.
       {¶ 19} 10. The record contains a single-page document captioned "Statement As
To Medical Necessity." According to relator, the document was signed by Dr. McLaughlin
and filed November 10, 2015.
       {¶ 20} In that regard, the document contains a signature line for the "Physician
Name."    While a signature presumably appears on the signature line, it is illegible.
No. 16AP-430                                                                              7


Moreover, the actual name of the physician is not disclosed by a printing of the physician's
name.
        {¶ 21} 11. The above-described document sets forth four queries. The fourth query
provides:
              Is it within reasonable medical certainty that the requested
              treatment and/medication is:

              (a) Medically necessary for the allowed conditions in the
              claim?

              Yes ____________                   No ______________

              (b) Medically appropriate for the allowed conditions in the
              claim?

              Yes ____________                   No ______________

              On the form, the physician marked the "yes" spaces.
              The above-described document sets forth the following query:
              Please briefly outline the basis for your opinion as indicated
              in question 4 above.

              In the space provided, it is handwritten:
              Medication usage is direct result of his pulmonary embolism
              from his injury.

        {¶ 22} It can be readily observed that the document makes no reference to Xarelto.
That is, neither the preprinted form nor the handwritten markings and responses identify
Xarelto as the medication being addressed.
        {¶ 23} 12. Following a November 10, 2015 hearing, a district hearing officer
("DHO") issued an order that denies relator's June 26, 2015 motion. The DHO's order
explains:
              The District Hearing Officer denies the Injured Worker's
              request to be reimbursed for the medication of Xarelto, as
              amended at hearing to be the only mediation to be requested
              for reimbursement, from 08/01/2011 through 08/01/2014,
              for lack of evidence that the request for payment was timely
              made, as required by Ohio Adm. Code 4123-3-23, and/or for
              lack of a medical causation, relating the prescription of this
              medication to the injury sustained in this claim.
No. 16AP-430                                                                                    8


          {¶ 24} 13. Relator administratively appealed the DHO's order of November 10,
2015.
          {¶ 25} 14. Following a January 21, 2016 hearing, an SHO issued an order affirming
the DHO's order of November 10, 2015, and denying relator's motion. The SHO's order
explains:
                 This is an injury from 1986. Payment of the medication
                 Xarelto has been made through private insurance since 1995.
                 Staff Hearing Officer affirms the District Hearing Officer's
                 finding that there is a lack of medical causation relating the
                 prescription of this medication to this 1986 injury. Further,
                 the request for reimbursement from 08/01/2011 through
                 08/01/2014 is denied as not having been timely filed for as
                 required by Ohio Adm.Code Section 4123-3-23.

          {¶ 26} 15. As averred by relator in his complaint at paragraph ten filed in this
action, "[f]urther appeal to the Industrial Commission was denied." In its answer to the
complaint, the commission admits the allegations as set forth at paragraph ten of the
complaint.
          {¶ 27} 16. On June 7, 2016, relator, James M. McGurr, filed this mandamus
action.
Conclusions of Law:
          {¶ 28} It is the magistrate's decision that this court deny relator's request for a writ
of mandamus, as more fully explained below.
          {¶ 29} Citing Ohio Adm.Code 4123-3-23, the orders of the DHO and SHO both
hold that the June 26, 2015 motion for reimbursement for out-of-pocket costs for the
dispensing of Xarelto was untimely filed.
          {¶ 30} Significantly, relator does not challenge or dispute the commission's
reliance on Ohio Adm.Code 4123-3-23 in determining that the June 26, 2015 motion was
untimely. Relator simply assumes that Ohio Adm.Code 4123-3-23 sets forth a two-year
limitation on the filing of the request for reimbursement. Relator states:
                 [I]t was error for the Hearing Officers to make a blanket
                 finding that Mr. McGurr's request for reimbursement of
                 Xarelto was not timely filed, when a significant portion of the
                 request was clearly filed within the two-year statute of
                 limitations established in Ohio Adm.Code 4123-3-23.

(Relator's Brief at 10.)
No. 16AP-430                                                                         9



      {¶ 31} Relator's assumption is not readily supported by a review of Ohio Adm.Code
4123-3-23 which currently provides effective July 27, 2015:
             (A) Except as otherwise provided in this rule, fee bills for
             medical or vocational rehabilitation services rendered in a
             claim shall be submitted to the bureau or commission for
             payment within one year of the date on which the service was
             rendered or one year after the date the services became
             payable under division (I) of section 4123.511 of the Revised
             Code, whichever is later, or shall be forever barred.

             ***

             (C) Paragraph (A) of this rule shall not apply to the
             following:

             (1) Requests made by the centers for medicare and medicaid
             services in the United States department of health and
             human services for reimbursement of conditional payments
             made pursuant to section 1395y(b)(2) of title 42, United
             States Code (commonly known as the "Medicare Secondary
             Payer Act") as in effect on the date of the request;

             (2) Requests made by the Ohio department of medicaid, or
             by a medical assistance provider to whom the department
             has assigned its right of recovery for a claim for which it has
             notified the provider that it intends to recoup its prior
             payment for a claim, for reimbursement under sections
             5160.35 to 5160.43 of the Revised Code for the cost of
             medical assistance paid on behalf of a Medicaid recipient;

             (3) Fee bills submitted outside the timeframe set forth in
             paragraph (A) of this rule due to MCO or bureau error;
             however, division (A) of section 4123.52 of the Revised Code
             shall still apply;

             (4) Fee bills submitted outside the timeframe set forth in
             paragraph (A) of this rule because the fee bills were initially
             submitted to a patient, different third-party payer, or state or
             federal program other than medicare or medicaid that
             reimburses for medical or vocational rehabilitation services
             and that patient, payer, or program has determined that it is
             not responsible for the cost of the services; however, division
             (A) of section 4123.52 of the Revised Code shall still apply.
No. 16AP-430                                                                              10


       {¶ 32} Thus, Ohio Adm.Code 4123-3-23(A) provides that fee bills shall be
submitted to the bureau or commission for payment within one year of the date on which
the services were rendered or one year after the date the services became payable or shall
be forever barred, unless it can be shown that Ohio Adm.Code 4123-3-23(C) applies.
Relator has not argued here, or before the commission, that Ohio Adm.Code 4123-3-23(C)
applies.
       {¶ 33} Nevertheless, the magistrate observes that Ohio Adm.Code 4123-3-23(C)(3)
and (4) both state that "division (A) of section 4123.52 of the Revised Code shall still
apply."
              The magistrate further observes that R.C. 4123.52(A) provides:
              The commission shall not make any modification, change,
              finding, or award which shall award compensation for a back
              period in excess of two years prior to the date of filing
              application therefor.

       {¶ 34} Relator fails to argue that R.C. 4123.52 somehow applies to his motion for
reimbursement. It is not the duty of this court to make the argument that relator might
have made.
       {¶ 35} In its brief, without explanation, respondent asserts that former Ohio
Adm.Code 4121-3-23 is applicable but fails to mention that the rule was repealed effective
May 1, 2001. That is, respondent fails to explain how the repealed rule on which the
commission did not rely can now be viewed as governing this case.
       {¶ 36} Given that relator does not dispute the commission's reliance on Ohio
Adm.Code 4123-3-23, nor does he present an argument for the applicability of Ohio
Adm.Code 4123-3-23(C), the presumption is that Ohio Adm.Code 4123-3-23(A) applies.
On its face, Ohio Adm.Code 4123-3-23(A) sets forth a one year limitation period. Clearly,
all of the five transactions involving the dispensing of Xarelto are beyond the one year
period. Thus, relator was time barred from requesting reimbursement on any of those
five transactions.
       {¶ 37} It is well established that, in order for a writ of mandamus to issue, relator
must demonstrate: (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 acts, and (3) that relator has no plain
No. 16AP-430                                                                               11


and an adequate remedy in the ordinary course of law. State ex rel. Berger v. McMonagle,
6 Ohio St.3d 28 (1983).
      {¶ 38} In mandamus, the relator must prove his or her entitlement to the writ by
clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-
Ohio-6117; see State ex rel. Everhart v. Indus. Comm., 10th Dist. No. 15AP-1020, 2016-
Ohio-8017.
      {¶ 39} Relator has failed to prove his entitlement to the writ by clear and
convincing evidence. Id.
      {¶ 40} 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).
