[Cite as State ex rel. Bravo Brio v. Indus. Comm., 2018-Ohio-2735.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Bravo Brio                               :
Restaurant Group, Inc.,
                                                       :
                 Relator,
                                                       :
v.                                                                       No. 17AP-189
                                                       :
Industrial Commission of Ohio et al.,                                 (REGULAR CALENDAR)
                                                       :
                 Respondents.
                                                       :



                                            D E C I S I O N

                                       Rendered on July 12, 2018


                 On brief: Reminger Co., L.P.A., Arthur W. Brumett, II, and
                 Bethanie R. Murray, for relator. Argued: Arthur W.
                 Brumett, II.

                 On brief: Michael DeWine, Attorney General, and Eric J.
                 Tarbox, for respondent Industrial Commission of Ohio.
                 Argued: Eric J. Tarbox.

                 On brief: Spitler & Williams-Young Co., L.P.A., William R.
                 Menacher, and Steven M. Spitler, for respondent Kellie A.
                 Farricker. Argued: Steven M. Spitler.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION


KLATT, J.

        {¶ 1} Relator, Bravo Brio Restaurant Group, Inc., commenced this original action
in mandamus seeking an order compelling respondent, Industrial Commission of Ohio
("commission"), to vacate its order authorizing medical treatment and granting temporary
No. 17AP-189                                                                                 2

total disability ("TTD") compensation to respondent, Kellie A. Farricker ("claimant"), and
to issue a new order denying the medical treatment as not related to the allowed conditions
in the claim and denying TTD compensation.
       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
conclusions of law, which is appended hereto.         The magistrate found that:       (1) the
commission acted within its discretion when it determined the claimant did not sustain an
intervening injury sufficient to break the causal connection between her allowed conditions
and her current need for medical treatment; (2) Dr. Healy's reports are not equivocal
because he opined that the need for surgery and the period of disability are related solely to
the allowed conditions in the claim; (3) the commission effectively found new and changed
circumstances based on its determination that the claimant suffered an exacerbation of the
allowed conditions in her claim; and (4) the commission essentially found that the State ex
rel. Miller v. Indus. Comm., 71 Ohio St.3d 229 (1994) criteria was satisfied because it found
the surgery was related to the allowed conditions in the claim. For these reasons, the
magistrate has recommended we deny relator's request for a writ of mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision. In its first objection,
relator argues that the magistrate's reliance on State ex rel. Daily Servs., LLC v. Indus.
Comm., 10th Dist. No. 16AP-604, 2017-Ohio-2771 to find that the claimant did not sustain
an intervening injury is error because that case is factual distinguishable. Although the
facts in Daily Servs. are not identical to the facts presented in the case at bar, we find no
error in the magistrate's reliance on the Daily Servs. case.
       {¶ 4} It is well-established that an intervening injury can break the causal
connection between a work-related injury and the allowed conditions resulting therefrom.
However, in Daily Servs., this court held the commission has discretion to determine
whether or not an event subsequent to the work-related injury, that results in a re-injury of
the condition allowed in the claim, constitutes an intervening event that breaks the causal
connection between the work-related injury, the allowed condition, and a later request for
additional treatment or compensation for the re-injury.
       {¶ 5} Specifically, in Daily Servs., the court held that the commission acted within
its discretion in determining that lifting a 25 pound bag of dog food and mopping the floor
No. 17AP-189                                                                                3

were not intervening events that broke the causal connection between the work-related
injury and the allowed rotator cuff tear, even though the subsequent non work-related event
resulted in the re-injury of the allowed condition. In essence, the court reasoned that
because a claimant may remain vulnerable to re-injury or exacerbation of an allowed
condition even from ordinary daily activities or events, the commission has the discretion
to find that those types of events are not intervening events that break the causal connection
between the work-related injury and the allowed condition.
       {¶ 6} Here, the commission determined that the ordinary daily activity of cleansing
after using the toilet, which resulted in the exacerbation of the claimant's allowed
conditions for disc protrusion L3-4, L4-5, and L5-S1, herniated disc L4-5 and L5-S1 and
lumbar radiculopathy, was not of sufficient magnitude to break the causal connection
between the work-related injury and the allowed claim. The magistrate did not err when
she relied on Daily Servs. in finding that the commission acted within its discretion in
making that determination. Therefore, we overrule relator's first objection.
       {¶ 7} In its second objection, relator contends that the staff hearing officer's
("SHO") failure to address relator's argument that nonallowed conditions caused the
claimant's need for surgery and TTD compensation supports its request for mandamus
relief. We disagree. As noted above, the commission found that the claimant's disability
and the need for surgery were causally related to the allowed conditions. Therefore, it
effectively rejected relator's argument that nonallowed conditions caused the disability.
Having found that the claimant established a causal connection between claimant's
disability and the allowed conditions, there was no need for the commission to specifically
address relator's argument that nonallowed conditions caused the disability. State ex rel.
Ignatious v. Indus. Comm., 99 Ohio St.3d 235, 2003-Ohio-3627. For this reason, we
overrule relator's second objection.
       {¶ 8} In its third objection, relator argues that the magistrate should have
recommended mandamus relief because the commission failed to expressly find new and
changed circumstances before granting claimant a new period of TTD and authorizing
further surgery. Again, we disagree.
       {¶ 9} By finding an exacerbation of the allowed conditions and the need for
additional surgery, the commission effectively found new and changed circumstances. As
No. 17AP-189                                                                               4

noted by the magistrate, the worsening of allowed conditions and the resulting need for
further surgery can constitute new and changed circumstances that can warrant the
resumption of TTD compensation. State ex rel. Chrysler Corp. v. Indus. Comm., 81 Ohio
St.3d 158 (1998) (need for additional surgery could constitute "new and changed
circumstances" supporting the reinstatement of TTD compensation). For this reason, we
overrule relator's third objection.
       {¶ 10} In its fourth objection, relator contends that the magistrate erred in
upholding the commission's decision because there was insufficient evidence that there is
a causal relationship between the allowed conditions and the proposed medical treatment
and that the allowed conditions were independently disabling. Relator argues that the
Medco-14 form completed by Dr. Healy is insufficient evidence that the allowed conditions
were independently disabling because the diagnostic code used on the form was broad
enough to include both allowed and nonallowed conditions. We disagree.
       {¶ 11} Dr. Healy submitted the Medco-14 form and form C-9 using the same
diagnostic code. The form C-9 describes surgery to address a disc herniation at L4-5, which
is an allowed condition in the claim. The Medco-14 form also asks for an ICD code for the
work-related allowed condition. The ICD code provided by Dr. Healy encompasses the
allowed condition for herniation at L4-5.      Based upon the Medco-14 and form C-9
submitted by Dr. Healy, the commission did not abuse its discretion when it found that the
claimant's disability, and the need for surgery, were causally related to the allowed
conditions. Again, the commission was not required to address relator's argument that
nonallowed conditions caused or contributed to the claimant's disability.         For these
reasons, we overrule relator's fourth objection.
       {¶ 12} In its fifth and last objection, relator argues that the magistrate erred in
finding that a completed form C-9 was sufficient evidence to establish that the requested
treatment is necessary and appropriate for the allowed conditions in the claim in the
absence of an express statement of this relationship and necessity. Relator acknowledges
that this argument was expressly rejected in State ex rel. Carlisle, Brake & Friction v.
Codney, 10th Dist. No. 15AP-1006, 2016-Ohio-7866, wherein this court held that "such
findings are implicit in a completed form C-9 identifying the allowed conditions as the basis
for the request." Id. at ¶ 6. Nevertheless, relator urges us to abandon this holding. We
No. 17AP-189                                                                                  5

decline to do so. For the reasons articulated in Carlisle, although form C-9 does not include
an express statement that the requested services are reasonably related to the allowed
conditions identified on the form, and reasonably necessary for the treatment of those
conditions, such findings are implicit in a completed form C-9 identifying the allowed
conditions as the basis for the request. For this reason, we overrule relator's fifth objection.
       {¶ 13} Following an independent review of this matter, we find the magistrate has
properly determined the facts and applied the appropriate law. Therefore, we adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
                                           Objections overruled; writ of mandamus denied.

                         BROWN, P.J., and BRUNNER, J., concur.
No. 17AP-189                                                                           6

                                      APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


The State ex rel.                           :
Bravo Brio Restaurant Group, Inc.,
                                            :
             Relator,
                                            :
v.                                                               No. 17AP-189
                                            :
Industrial Commission of Ohio                               (REGULAR CALENDAR)
and                                         :
Kellie A. Farricker,
                                            :
             Respondents.
                                            :



                        MAGISTRATE'S DECISION

                              Rendered on October 6, 2017



             Reminger Co., L.P.A., Arthur W. Brumett II, and Bethanie R.
             Murray, for relator.

             Michael DeWine, Attorney General, and Eric J. Tarbox, for
             respondent Industrial Commission of Ohio.

             Spitler & Williams-Young Co., L.P.A., William R. Menacher,
             and Steven M. Spitler, for respondent Kellie A. Farricker.


                                     IN MANDAMUS

      {¶ 14} Relator, Bravo Brio Restaurant Group, Inc., 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 authorized medical treatment and granted
temporary total disability ("TTD") compensation to respondent, Kellie A. Farricker
No. 17AP-189                                                                            7

("claimant"), and ordering the commission to find that the medical treatment was not
related to the allowed conditions in her claim, and consequently TTD compensation should
not be paid.
Findings of Fact:
       {¶ 15} 1. Claimant sustained a work-related injury on March 24, 2009 and her
workers' compensation claim has been allowed for the following conditions:
               Head contusion; back contusion; left upper arm contusion;
               cervical sprain; cervical strain; minor closed head injury;
               thoracic strain; lumbosacral strain; disc protrusion L3-4, L4-
               L5, L5-S1; radiculopathy L5-S1; herniated disc at L4-5 and L5-
               S1; major depressive disorder, single episode.

       {¶ 16} 2. In 2012, relator's allowed physical conditions were found to have reached
maximum medical improvement ("MMI").
       {¶ 17} 3. An MRI taken October 15, 2015 revealed the following:
               [One] 4.5 mm left paracentral disc herniation at L4-L5
               posteriorly deflects the left L5 nerve root.
               [Two] Posterior annular tear and posterior disc bulge at L5-
               S1.
               [Three] Lumbar lordotic straightening.

       {¶ 18} 4. On April 11, 2016, claimant presented at Promedica Toledo Hospital with
an acute exacerbation of her chronic back pain. Claimant explained that she was sitting on
the toilet and went to wipe herself when she felt the sudden onset of pain.
       {¶ 19} 5. The MRI taken April 11, 2016 revealed the following:
               Patient demonstrates muscle spasm. Lower lumbar spine disc
               desiccation.
               Disc bulge L3-4.
               Asymmetrical facet disease L4-5 with significant focal disc
               herniation central and paracentral to the left with central
               canal stenosis and lateral recess stenosis particularly on the
               left. L5-S1 broad-based disc bulge with central annular tear.

               At this time, the following was also noted:         "Disc lesion measures
approximately 10 x 6 mm."
       {¶ 20} 6. On April 12, 2016, Michael A. Healy, M.D., operated on claimant and
performed a "Left-sided L4-L5 hemilaminectomy, microdiskectomy, and foraminotomy."
       {¶ 21} 7. The pre-operative diagnoses were:
No. 17AP-189                                                                             8

                [One] Acute onset of severe radiculopathy and minor signs of
                urinary retention.
                [Two] Herniated lumbar disk, left-sided L4-L5.

       {¶ 22} 8. Following the surgery, Dr. Healy submitted a C-9 form requesting
payment for the surgery and associated post-operative therapy. Claimant also filed C-86
motions requesting the payment of TTD compensation from April 12, 2016, the date of
surgery, through June 29, 2016 and continuing. In support, claimant submitted the
May 12, 2016 operative report and the May 20, 2016 Medco-14 Physician's Report of Work
Ability completed by Dr. Healy.
       {¶ 23} 9. Additional Medco-14 forms would extend the requested period of
disability into February 2017.
       {¶ 24} On the May 12, 2016 Medco-14, Dr. Healy listed the allowed condition as
displacement of lumbar inter disc with an ICD code of M51.26.
       {¶ 25} On the July 5, 2016 Medco-14, Dr. Healy listed the allowed condition as HLD
with the ICD code of M51.26.
       {¶ 26} On the November 25, 2016 Medco-14, Nathan Hill, M.D., listed the allowed
conditions with the corresponding ICD codes:
                Displacement of lumbar disc        M51.26
                Disc displacement lumbosacral      M51.27
                Lumbar radiculopathy               M54.16

       {¶ 27} 10. Relator opposed the motions and submitted the independent medical file
review of Bernard Bacevich, M.D., dated June 24, 2016. Dr. Bacevich listed the allowed
conditions in claimant's claim and identified all the medical records which he reviewed.
Thereafter, Dr. Bacevich discussed the events of April 11, 2016, when claimant presented to
the hospital:
                On April 11, 2016, she presented to Toledo Hospital
                Emergency Room with an acute exacerbation of her chronic
                pain which developed while she was sitting to urinate. She was
                reporting some decreased rectal sensation, and then on rectal
                examination, she had normal tone and sensation. She had
                difficulty moving her left leg due to pain. An emergency MRI
                was carried out, still showing the disc bulge at L3-4 but at L4-
                5, there was a significant focal disc herniation central and
                paracentral to the left in conjunction with some central canal
                stenosis. The L5-S1 disc was still bulging with a central
No. 17AP-189                                                                                 9

              annular tear. The ER contacted Dr. Healy, neurosurgeon, by
              phone, and he agreed to admit her. She was placed on steroid
              medications. In the radiology report, the L4-5 disc, as well as
              the other two discs, were all still desiccated; however, now the
              L4-5 disc showed a significant focal disc herniation central
              and to the left, causing effacement of the cauda equina. In the
              history and physical note, she stated that she had ambulated
              to the bathroom that day and did urinate, and then proceeded
              to wipe herself, and as she bent over, she felt a very sharp,
              tearing pain in her lower back. This was unrelieved with her
              medication. She was having shooting pains down the back of
              her legs and numbness and tingling, and for that reason,
              reported to the emergency room. Dr. Healy did take her to
              surgery the next day, April 12, 2016. He did identify the
              herniated disc at the L4-5 level. He did not describe in the
              operative report whether this was an extruded or sequestered
              disc fragment, but he did proceed with a hemilaminectomy
              and microdiscectomy. She was discharged without
              complications. She was ambulatory with a walker. Her
              medications at discharge included baclofen, gabapentin,
              valium, and Percocet.

       {¶ 28} Dr. Bacevich explained why, in his medical opinion, the motion should be
denied. First, Dr. Bacevich stated:
              It is my opinion that the conditions of disc protrusion L3-4,
              L4-5, L5-S1, and radiculopathy L5-S1, and herniated disc at
              L4-5 and L5-S1 were not supported by objective findings. This
              was evidenced early on by the IME by Dr. Lieser where he
              found that she had only subjective complaints and no
              objective findings to support these allowed conditions. Her
              initial MRI of January 8, 2010, shows that all three lumbar
              discs showed disc desiccation. Disc desiccation is a sign of
              degeneration, and degenerating, desiccating discs are almost
              always associated with disc protrusions.

              This is a degenerative process and is quite common in
              overweight individuals, especially individuals who are
              smoking.

       {¶ 29} Dr. Bacevich opined that, based on his review of the medical records, the
requested surgery, and additional treatment was not medically necessary and was not
appropriate for the allowed conditions in the claim. Specifically, Dr. Bacevich explained:
              Based upon my review of the medical records, it is my opinion
              that the C-9, dated May 18, 2016, requesting left-sided L4-5
No. 17AP-189                                                                              10

              hemilaminectomy, microdiscectomy, and foraminotomy
              followed by physical therapy three times a week for six or eight
              weeks and a 23-hour observation period at Toledo Hospital
              was not medically necessary and appropriate for the allowed
              conditions in this claim. The surgery was performed on April
              12, 2016. It is my opinion that this claimant underwent a
              totally unrelated acute disc herniation due to bending while
              using the toilet, and she incurred an acute L4-5 left disc
              herniation with compression of the cauda equina. I cannot
              relate this acute disc herniation, occurring seven years after
              her industrial injury, as being related. Simple bending over
              while on a toilet can place abnormal stress on the lumbar
              spine to cause a degenerative disc to acutely herniate. The
              surgery was necessary for the acute disc herniation, but I do
              not relate the acute disc herniation to her longstanding,
              chronic lower back pain.

       {¶ 30} 11. The motions were heard before a district hearing officer ("DHO") on
October 13, 2016. The DHO determined that claimant did not suffer a new injury but that
she exacerbated her pre-existing condition causing the condition to be clinically significant
when it had not been so before. The DHO authorized payment for the treatment and the
payment of TTD compensation.
       {¶ 31} 12. Relator appealed and the matter was heard before an staff hearing officer
("SHO") on January 12, 2017. The SHO also granted the request for treatment and payment
of compensation, stating:
              The Hearing Officer finds the Injured Worker suffered an
              acute exacerbation of her allowed conditions when she used
              the restroom and felt excruciating pain. She sought treatment
              on 4/11/2016 at Promedica Toledo Hospital. Emergency room
              records describe that the Injured Worker has a history of
              chronic back problems after an injury in 2009 while working.
              "She had ambulated to the bathroom today and did urinate.
              She proceeded to wipe herself and unfortunately as she bent
              over she felt a very sharp tearing type pain in her lower back.
              … the pain was unrelieved, intensified, and is rated at a 10 of
              a 10 … she reported to the ER for further evaluation…" The
              Hearing Officer finds Injured Worker did not sustain an
              intervening injury when she went to the bathroom and felt an
              increase in pain. The Hearing Officer finds that the Injured
              Worker suffered an exacerbation of her currently allowed
              conditions in the claim.
No. 17AP-189                                                                               11

              The related request for treatment as contained on
              07/20/2016 for a left-sided L4-5 hemilaminectomy
              microdiskectomy and foraminotomy, physical therapy and
              aquatics three times a week x 6-8 weeks as requested by
              Michael Healy, M.D. is authorized as written. The treatment
              is found to be reasonable, necessary and appropriate for
              treatment of the allowed conditions in the claim.

              The related request for payment of temporary total benefits
              from 04/12/2016 through the present and continuing is
              payable as a result of the operative procedure for the allowed
              conditions in the claim. MEDCO-14s Physician's Report of
              Work Ability completed by Michael Healy, M.D., and Nathan
              Hill, M.D. support this finding. Temporary total benefits are
              to continue upon submission of proof of disability for the
              currently allowed conditions in the claim. This finding is
              based upon the credible testimony of Injured Worker at
              hearing as well as treatment records of Dr. Healy and Toledo
              Hospital and credible testimony of Injured Worker at hearing.

       {¶ 32} 13. Relator's further appeal was refused by order of the commission mailed
February 8, 2017.
       {¶ 33} 14. Thereafter, relator filed the instant mandamus action in this case.
Conclusions of Law:
       {¶ 34} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 35} 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).
       {¶ 36} 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
No. 17AP-189                                                                               12

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).
       {¶ 37} 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).
       {¶ 38} Relator asserts the commission abused its discretion by failing to (1) find that
claimant sustained an intervening injury; (2) find that the surgery was performed to treat
non-allowed conditions; (3) find that the C-9, Medco-14s, and office notes on which the
commission relied were equivocal; (4) find new and changed circumstances to award TTD
compensation after claimant's allowed physical conditions had reached MMI; and (5)
discuss the criteria for authorizing treatment found in State ex rel. Miller v. Indus.
Comm. 71 Ohio St.3d 229 (1994). For the reasons that follow, the magistrate disagrees with
relator's arguments and that a writ of mandamus is not appropriate.
       {¶ 39} Relator's first argument is that the commission abused its discretion by
failing to find that claimant had sustained an intervening injury. For the reasons that
follow, the magistrate finds that the commission did not abuse its discretion in this regard.
       {¶ 40} It is undisputed that an intervening injury can break the causal connection
between a work-related injury and the allowed conditions resulting therefrom, and a later
request for treatment or compensation. However, the commission has discretion to
determine whether or not events which occur actually constitute intervening injuries.
No. 17AP-189                                                                               13

As noted in the findings of fact, on March 24, 2009, claimant sustained a work-related
injury which resulted in significant low-back conditions being allowed.           Claimant's
allowed physical conditions were found to have reached MMI in 2012. Thereafter, in April
2016, claimant presented at the hospital with an acute exacerbation of her chronic back
pain explaining that, while sitting on the toilet, she went to wipe herself and felt the
sudden onset of pain. Relator argues that the act of wiping herself constituted an
intervening injury breaking the causal connection between the work-related injury and
the resulting allowed conditions and her current need for treatment.
       {¶ 41} The magistrate finds that this case is analogous to the situation presented in
State ex rel. Daily Services v. Indus. Comm. & Darion Stanford, 10th Dist. No. 16AP-604,
2017-Ohio-2771.       In that case, Darion Stanford sustained a work-related injury in 2013
and his workers' compensation claim was allowed for the following conditions:
"lumbosacral contusion; right shoulder sprain; right upper arm sprain; right shoulder
contusion; right upper arm contusion, tear supraspinatus, right; tear subscapularis, right."
Stanford underwent shoulder surgery and, in November 2015, returned to light-duty work
with his employer.
       {¶ 42} Shortly after returning to work, Stanford reported to physical therapy
complaining of "increased soreness and 'clicking' in shoulder this date after trying to lift a
20# bag of dog food at work last night. States he continues to have pinching and clicking
pain with abduction." Stanford was granted additional weeks of therapy.
       {¶ 43} In January 2016, Stanford indicated that he had been mopping the floor at
work and noticed an increase in pain. Ultimately, following a repeat MRI, Stanford's
physician of record recommended right shoulder revision rotator cuff surgery.            The
employer argued that the act of lifting a bag of dog food and mopping the floor did not
constitute intervening injuries which broke the causal connection.          The commission
disagreed and relied on the physical therapy notes, the second operative report, and a
report from Dr. Rutherford to find that the need for the second surgery was indeed related
to the original work-related injury.
       {¶ 44} Relator filed a mandamus action in this court and this court adopted the
magistrate's decision which included the determination that lifting the 20 pound bag of dog
No. 17AP-189                                                                              14

food and mopping the floor did not constitute intervening injuries. Specifically, this court,
through its magistrate, stated:
               The act of lifting a 20 pound bag of dog food and mopping a
               floor are two activities which people perform on a daily basis
               and are not necessarily considered intervening injuries such
               as a fall or a motor vehicle accident would be. It would be nice
               if torn rotator cuffs could be fixed with one surgery and
               injured workers could be returned to normal; however, that is
               not reality. It is common knowledge that surgery can leave the
               repaired tendons in a compromised state making it more
               difficult for an injured worker to perform ordinary tasks.
               Twenty pounds is not a lot of weight for a man to lift and
               mopping a floor is an ordinary household task performed by
               most people. The magistrate finds that the commission did
               not abuse its discretion in refusing to accept relator's
               argument that these two ordinary incidents constituted
               intervening injuries breaking the causal connection.

Id. at ¶ 34.

       {¶ 45} Based on the above analysis, the magistrate finds that the commission did
not abuse its discretion in finding that claimant here did not sustain an intervening injury
when she wiped herself after utilizing the bathroom facilities. This is an ordinary, everyday
event which, as a general rule, does not cause any injury.
       {¶ 46} Relator's second and third arguments are interrelated and will be addressed
together. Relator argues that the surgery was performed to treat non-allowed conditions
and that the medical evidence on which the commission relied, specifically Dr. Healy's C-9,
Medco-14s, and office notes, were equivocal.
       {¶ 47} It is undisputed that claimant bears the burden of establishing that her
disability is independently caused by the allowed conditions in the claim. See State ex rel.
Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993).
       {¶ 48} Claimants who also have non-allowed conditions can still establish
entitlement to an award of TTD compensation provided they establish that the allowed
conditions are independently disabling. State ex rel. WCI Steel, Inc. v. Indus. Comm., 96
Ohio St.3d 24, 2002-Ohio-3315. As long as a claimant establishes a causal connection
between the allowed conditions and the disability, the claimant does not have to
No. 17AP-189                                                                                 15

additionally prove that the non-allowed conditions do not cause the inability to return to
work. See State ex rel. Ignatious v. Indus. Comm., 99 Ohio St.3d 285, 2003-Ohio-3627.
       {¶ 49} Relator argues that Dr. Bacevich's extensive review of claimant's medical
records establishes that the surgery and treatment was not related to the allowed conditions
in the claim. Relator also directs this court's attention to the fact that the April 2016 lumbar
MRI showed the following non-allowed conditions: annular tear, degenerative disc disease,
canal stenosis, and cauda equina compression. However, what relator fails to acknowledge
is that the disc herniation at L4-5 measured 4.5 millimeters in 2015 and was now
approximately 10 x 6 millimeters in 2016. This was a substantial increase in size which
naturally effected the amount of pain claimant was experiencing. On every C-9 and Medco-
14 completed by Dr. Healy, he noted the allowed conditions in claimant's claim as
necessitating the surgery and being responsible for the new period of disability. As noted
previously, claimant was not required to establish that non-allowed conditions did not
affect her; only that the allowed conditions in the claim were causing the current period of
disability.
       {¶ 50} With regard to the above, relator's third argument is that claimant's medical
evidence was equivocal. Relator bases this on the fact that Dr. Healy did acknowledge the
other non-allowed conditions which were present after claimant exacerbated her condition.
Relator argues that Dr. Healy never outright stated that the allowed conditions were the
sole cause of claimant's disability.
       {¶ 51} In State ex rel. Carlisle Brake & Friction v. Codney, 10th Dist. No. 15AP-
1006, 2016-Ohio-7866, this court specifically stated that a completed form C-9 constitutes
a physician's certification and medical opinion that the requested services are reasonably
related to the allowed conditions identified on the form and reasonably necessary for the
treatment of those conditions. Specifically, this court stated:
              The form C-9 that Codney submitted on January 7, 2015, was
              completed by physician David Krahe, D.O., on October 20,
              2014, to the text of the note and seeks reimbursement for the
              requested TENS unit medical supplies. At issue is whether
              that form, standing alone, constitutes some evidence in
              support of the SHO's order granting Codney's request for
              authorization to receive those supplies.
No. 17AP-189                                                                              16

                This court recently determined that a completed form C-9
                constitutes a physician's certification and medical opinion
                that the requested services are reasonably related to the
                allowed conditions identified on the form and reasonably
                necessary for treatment of those conditions. State ex rel.
                Cooper Tire & Rubber Co. v. Bowers, 10th Dist. No. 14AP-331,
                2015-Ohio-2240, ¶ 53-54. Although form C-9 does not include
                an express statement of this relation and necessity, such
                findings are implicit in a completed form C-9 identifying the
                allowed conditions as the basis for the request. See Bowers at
                ¶ 53. Here, Dr. Krahe listed within the "treating diagnosis"
                section of the form C-9 the ICD-9 code numbers that
                correspond to the allowed conditions. Thus, the form C-9
                reflects Dr. Krahe's certification and medical opinion that the
                requested medical supplies are reasonably necessary and
                related to the allowed conditions of the claim. See id.
                Consistent with this court's decision in Bowers, we agree with
                the magistrate's determination that the form C-9 that Dr.
                Krahe completed, standing alone, provides some evidence in
                support of the SHO's order. Therefore, we find Carlisle's
                objection to the magistrate's decision to be meritless.

Id. at ¶ 5-6.

       {¶ 52} The magistrate finds that Dr. Healy's records are not equivocal. While he
acknowledges there are other lumbar conditions present, he maintains throughout that the
need for surgery and the period of disability are related solely to the allowed conditions in
claimant's claim. As such, the magistrate finds that relator's second and third arguments
are likewise rejected.
       {¶ 53} Relator's fourth argument is that the commission failed to find new and
changed circumstances to reinstate TTD compensation. Inasmuch as claimant's allowed
physical conditions had been found to have reached MMI, relator asserts that the
commission abused its discretion by not making this finding.
       {¶ 54} Admittedly, the commission's order does not make any specific finding of
new and changed circumstances to warrant the payment of a new period of TTD
compensation. However, the commission did specifically find that claimant suffered an
exacerbation of her condition and that the surgery was necessary. Worsening of conditions
and a need for surgery do constitute new and changed circumstances that can warrant the
resumption of TTD compensation. See, for e.g., State ex rel. Bing v. Indus. Comm., 61 Ohio
No. 17AP-189                                                                              17

St.3d 424 (1991). The magistrate finds that there is no need to return this case to the
commission so that the commission can specifically state that it found new and changed
circumstances when the language of the order specifically finds that claimant suffered an
exacerbation of the allowed conditions in her claim.
       {¶ 55} Lastly, relator argues that the commission abused its discretion by not
specifically quoting the criteria from Miller. It is undisputed that in Miller the court
established a three-prong test for the authorization of medical services: (1) are the medical
services reasonably related to the industrial injury; (2) are the services reasonably
necessary for treatment of the industrial injury; (3) is the cost of such service medically
reasonable?    Inasmuch as the magistrate has already explained that a physician's
completion of a C-9 is sufficient to establish the physician's opinion that treatment is
reasonably related to the industrial injury and necessary for the treatment of the industrial
injury, the magistrate finds that, in essence, the commission did make this finding.
Claimant presented at the hospital in extreme pain. The MRI showed that the herniated
disc was significantly larger than it had been one year earlier. Surgery was essentially
performed on an emergency basis. Inasmuch as the commission found that the surgery
was related to the allowed conditions in the claim, the magistrate sees no reason to return
this matter to the commission just so the commission can state that the Miller criteria are
met.
       {¶ 56} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion in finding that the surgery was
related to the allowed conditions in the claim and authorizing the payment of a new period
of TTD compensation, 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).
