[Cite as State ex rel. Ohio Univ. v. Indus. Comm., 2015-Ohio-3779.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Ohio University,                         :

                 Relator,                              :

v.                                                     :                  No. 14AP-695

Industrial Commission of Ohio                          :              (REGULAR CALENDAR)
and Terry L. Holifield,
                                                       :
                 Respondents.
                                                       :



                                            D E C I S I O N

                                   Rendered on September 17, 2015


                 Mollica, Gall, Sloan & Sillery, Co., LPA, and Andrew J.
                 Mollica, for relator.

                 Michael DeWine, Attorney General, and Cheryl J. Nester, for
                 respondent Industrial Commission of Ohio.

                 The Bainbridge Firm, LLC, and Zachary L. Tidaback, for
                 respondent Terry L. Holifield.


                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, Ohio University, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order directing the Ohio Bureau of Workers' Compensation ("BWC") to
process the C-92 application of respondent, Terry L. Holifield ("claimant") for permanent
partial disability ("PPD") compensation, and to order the commission to dismiss
claimant's application.
No. 14AP-695                                                                             2

       {¶ 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
because the claimant's PPD application involved a condition different from the condition
for which he previously received permanent total disability compensation ("PTD"), the
commission did not abuse its discretion when it ordered the BWC to process his
application. Therefore, the magistrate has recommended that we deny relator's request
for a writ of mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision.        In its first
objection, relator argues that the magistrate erred when she allegedly suggests that the
claimant could have pursued a PPD award prior to the claimant's receipt of PTD
compensation. We fail to see how this argument warrants sustaining relator's objection.
The portion of the magistrate's decision that relator challenges is not part of the
magistrate's holding.     Nor is it particularly relevant to the principle of law that is
dispositive in this case. The magistrate's speculation about what the claimant might have
done is of no consequence and is not error. Therefore, we overrule this objection.
       {¶ 4} In its second objection, relator argues that the commission has created a
new type of post PTD award. We disagree.
       {¶ 5} In State ex rel. Mosely v. Indus. Comm., 10th Dist. No. 13AP-127, 2014-
Ohio-1710, this court adopted a magistrate's decision in which the magistrate held that
the commission may grant a PPD award for a condition that is different from the
condition that is the basis for a preexisting PTD award. That is the factual scenario
presented here. Contrary to relator's assertion, a PPD award in this case is not a new type
of post PTD award. For these reasons, we agree with the magistrate that the commission
did not abuse its discretion when it directed the BWC to process the claimant's PPD
application. Therefore, we overrule relator's second objection.
       {¶ 6} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
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.
No. 14AP-695                                                                            3

                             BROWN, P.J., and HORTON, J., concur.




                                         APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT

State ex rel. Ohio University,                :

              Relator,                         :

v.                                             :                  No. 14AP-695

Industrial Commission of Ohio                 :                (REGULAR CALENDAR)
and Terry L. Holifield,
                                               :
              Respondents.
                                               :




                          MAGISTRATE'S DECISION

                                  Rendered on March 26, 2015



              Mollica, Gall, Sloan & Sillery, Co. LPA, and Andrew J.
              Mollica, for relator.

              Michael DeWine, Attorney General, and Stephen D. Plymale,
              for respondent Industrial Commission of Ohio.

              The Bainbridge Firm, LLC, and Zachary L. Tidaback, for
              respondent Terry L. Holifield.


                                       IN MANDAMUS

       {¶ 7} Relator, Ohio University, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order directing the Ohio Bureau of Workers' Compensation
No. 14AP-695                                                                          4

("BWC") to process the C-92 application of claimant Terry L. Holifield ("claimant") for
permanent partial disability ("PPD") compensation, and ordering the commission to
dismiss claimant's application.
Findings of Fact:
       {¶ 8} 1. Claimant sustained a work-related injury on December 29, 1999, and his
workers' compensation claim was originally allowed for "sprain lumbosacral."
       {¶ 9} 2. In December 2003, claimant filed an application for permanent total
disability ("PTD") compensation.     At that time, his claim had been allowed for the
following additional conditions:
              Lumbar radiculopathy; aggravation of pre-existing
              degenerative disc disease L5-S1; L5-S1 herniated nucleus
              pulposus; osteomyelitis NOS-other site.

       {¶ 10} At the time he filed his application for PTD compensation, claimant had
undergone two surgical procedures in 2001 and 2002 because of continuing back pain.
According to the medical records, claimant's back pain did not improve following those
surgeries.
       {¶ 11} 3. Relator's application for PTD compensation was granted based solely on
the allowed physical conditions and without consideration of the non-medical disability
factors. The start date for compensation was determined to be February 19, 2004.
       {¶ 12} 4. After he had been awarded PTD compensation, claimant's claim was
additionally allowed for "lumbar post laminectomy pain syndrome" following a hearing
before a district hearing officer ("DHO") on July 29, 2009.
       {¶ 13} 5. In 2013, claimant filed a C-92 application for the determination of the
percentage of PPD related solely to the newly allowed condition of lumbar post
laminectomy pain syndrome.
       {¶ 14} 6. The BWC dismissed claimant's application in an order mailed May 17,
2013. Specifically, the order of the administrator provides:
              On 05/13/2013 [sic], the injured worker filed an application
              for a determination or an increase in the percentage of
              permanent partial disability as a result of his/her work-
              related injury/disease. The Ohio Bureau of Workers'
              Compensation (BWC) hereby advises it has dismissed the
              Application for Determination of Percentage of Permanent
              Partial Disability or Increase of Permanent Partial Disability
              (C-92) without prejudice for the reasons(s) listed below.
No. 14AP-695                                                                       5

             The Industrial Commission of Ohio by order dated
             04/13/2004 has found the injured worker to be permanently
             and totally disabled.

             The injured worker has been found Permanently & Totally
             disabled for the conditions of (846.0 - Lumbosacral Sprain,
             724.4 - Lumbar Radiculopathy, 722.52 - Aggravation of
             Degenerative Disc Disease L5-S1, 722.10 - HNP L5-S1, and
             730.28 - Osteomyelitis NOS - other site based upon the PTD
             Tentative Order dated 4-13-04.

             Therefore, the injured worker is not entitled to receive
             additional compensation through a Permanent Partial award
             for the same part of body that was considered in the granting
             of the Permanent Total compensation.

      {¶ 15} 7. Claimant filed an objection, stating:
             Dismissal is contrary to BWC Policy. See following excerpt
             from BWC Website. "However, if an additional condition is
             allowed after PTD has been awarded, concurrent payments
             may be considered. Additionally, an injured worker is
             entitled to receive previously awarded %PP benefits in
             addition to subsequently awarded PTD for an injury that
             occurred prior to November 16, 1973. These situations
             should be staffed with the local BWC attorney." Please
             reinstate and process C-92.

      {¶ 16} 8. The objection was heard before a DHO on July 15, 2013 and resulted in
an order vacating the order of the administrator:
             The District Hearing Officer hereby refers this matter back to
             the Bureau of Workers' Compensation to properly process
             the Injured Worker's C-92 Application, filed 05/13/2013, in
             its usual course and consider the award permanent partial
             disability compensation percentage based only upon the
             lumbar post laminectomy pain syndrome condition allowed
             in this claim after the Injured Worker was awarded
             permanent total disability compensation.

      {¶ 17} 9. An appeal from the DHO order was heard before a staff hearing officer
("SHO") on September 17, 2013. The SHO vacated the prior DHO order and found the
application for PPD compensation should not be processed, stating:
             The Staff Hearing Officer denies the Injured Worker's
             application filed 05/13/2013 for a determination or an
             increase in the percentage of permanent partial disability as
             a result of the allowed injury.
No. 14AP-695                                                                             6

               Pursuant to Tentative Order, dated 04/13/2004, the Injured
               Worker was found permanently and totally disabled for the
               conditions of lumbosacral sprain, lumbar radiculopathy,
               aggravation of pre-existing degenerative disc disease L5-S1,
               L5-S1 herniated nucleus pulposus and osteomyelitis NOS.
               Therefore, the Staff Hearing Officer finds that the Injured
               Worker is not entitled to receive additional compensation
               through a Permanent Partial award for the same body part
               that was considered in granting of the Permanent Total
               compensation.

               In making this finding, the Staff Hearing Officer determines
               that the claim has been additionally allowed for the
               condition of lumbar post-laminectomy pain syndrome after
               the 2004 Tentative Permanent Partial Disability grant order.
               The Staff Hearing Officer finds, however, that this condition
               amounts to the same body part that was considered in
               granting the permanent total disability order and therefore
               no increase of permanent partial disability is warranted at
               this time.

       {¶ 18} 10. Claimant filed a request for reconsideration, which the commission set
for hearing to determine whether there was a clear mistake of law in the failure to process
his C-92 application for a condition allowed subsequent to the granting of the PTD
application.
       {¶ 19} 11. Following a hearing on December 5, 2013, the commission granted the
request for reconsideration by a two-to-one vote, stating:
               [I]t is the decision of the Industrial Commission the Injured
               Worker has met his burden of proving the Staff Hearing
               Officer order, issued 09/26/2013, contains a clear mistake of
               law of such character that remedial action would clearly
               follow. Specifically, the Staff Hearing Officer misapplied the
               applicable case law in finding the request for permanent
               partial disability compensation was for "the same body part"
               as the prior award of permanent total disability
               compensation. Instead, the Staff Hearing Officer should have
               analyzed whether the request for permanent partial
               disability compensation was based upon the "same
               condition" as the prior award of permanent total disability
               compensation. See State ex rel. Missik v. City of Youngstown,
               65 Ohio St.3d [189], 602 N.E.2d 633 (1992), State ex rel.
               Murray v. Indus. Comm., 63 Ohio St.3d 473, 588 N.E.2d 855
               (1992), State ex rel. Hoskins v. Indus. Comm., 87 Ohio St.3d
               560, 722 N.E.2d 66 (1992), and State ex rel. Mosley v. Indus.
               Comm., 10th Dist. No. 13AP-127. Therefore, the Industrial
No. 14AP-695                                                                               7

              Commission exercises continuing jurisdiction pursuant to
              R.C. 4123.52 and State ex rel. Nicholls v. Indus. Comm., 81
              Ohio St.3d 454, 692 N.E.2d 188 (1998), State ex rel. Foster v.
              Indus. Comm., 85 Ohio St.3d 320, 707 N.E.2d 1122 (1999),
              and State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d
              585, 2004-Ohio-5990, 817 N.E.2d 398, in order to correct
              this error.

       {¶ 20} 12. The commission referred the matter back to the BWC ordering the BWC
to process claimant's C-92 application in accordance with the "same condition" standard.
       {¶ 21} 13. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 22} For the reasons that follow, it is this magistrate's decision that this court
should deny the request for a writ of mandamus, as more fully explained below.
       {¶ 23} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 24} The question here is whether or not the commission abused its discretion
when it referred this matter back to the BWC ordering the BWC to determine whether
claimant was entitled to an award of PPD compensation for the newly allowed condition
in his claim, lumbar post laminectomy pain disorder, even though he had already been
awarded PTD compensation in his claim, allowed entirely for back conditions. Several
cases have discussed this issue, and the magistrate specifically notes that part of the
confusion stems from the fact that certain words have been used at different times to
express the same concept. For example, the word "injury" (which is no longer used) has
been used as well as the words "same condition" and "body parts."
No. 14AP-695                                                                            8

      {¶ 25} Prior to 1986, R.C. 4123.57 allowed a PPD award after the last period of
disability. In 1986, the statute was amended to allow a partial disability award after the
last period of compensation paid under R.C. 4123.56, which provides for temporary total
disability ("TTD") compensation and working wage loss compensation ("WWL"). The
statute was changed because the legislature removed temporary partial disability
compensation from the Ohio Revised Code and replaced it with WWL compensation.
      {¶ 26} R.C. 4123.57 now provides:
             [N]ot earlier than twenty-six weeks after the date of
             termination of the latest period of payments under section
             4123.56 of the Revised Code, * * * the employee may file an
             application with the bureau of workers' compensation for the
             determination of the percentage of the employee's
             permanent partial disability resulting from an injury * * *.

             Whenever the application is filed, the bureau * * * shall
             schedule the employee for a medical examination by the
             bureau medical section.

             ***

             (A) The district hearing officer, upon the application, shall
             determine the percentage of the employee's * * * based upon
             that condition of the employee resulting from the injury or
             occupational disease and causing permanent impairment
             evidenced by medical or clinical findings reasonably
             demonstrable.

             ***

             No award shall be made under this division based upon a
             percentage of disability which, when taken with all other
             percentages of permanent disability, exceeds one hundred
             per cent. * * *
             Compensation payable under this division accrues and is
             payable to the employee from the date of last payment of
             compensation.

             ***

             (C) Compensation for partial impairment under divisions (A)
             and (B) of this section is in addition to the compensation
             paid the employee pursuant to section 4123.56 of the Revised
             Code.
No. 14AP-695                                                                        9

       {¶ 27} Based on the above provisions, it is clear that a claimant must wait six
months (26 weeks) after their TTD compensation has ended before they can apply for an
award of PPD compensation. Further, once the application is filed, the BWC is required
to refer the claimant for a medical evaluation.
       {¶ 28} As noted previously, several cases have addressed whether a claimant can
concurrently receive PPD and PTD compensation. The first case to be addressed here is
State ex rel. Murray v. Indus. Comm., 63 Ohio St.3d 473 (1992). In that case, John
Murray, Jr., was receiving PTD compensation when he applied for an award of PPD
compensation under former R.C. 4123.57(B) "for the same injury." Id. at 473. The
commission dismissed the application because he was already receiving PTD
compensation. Murray filed a mandamus complaint in this court alleging a right to
concurrently receive PTD and PPD compensation for the same injury; however, this court
disagreed and denied the writ.
       {¶ 29} On appeal, the Supreme Court of Ohio set out the relevant question as
follows: "Can a claimant concurrently receive PPD and PTD for the same injury?" Id. at
474. The Supreme Court answered the question in the negative, stating:
              While not expressly addressing the contemporaneous
              payment of PPD and PTD for the same injury, former R.C.
              4123.57 evinces a legislative intent to prohibit simultaneous
              receipt of these benefits.

              The former versions of R.C. 4123.57(D), applicable at the
              time of claimant's injuries herein, elaborately specify that
              compensation for partial disability under former R.C.
              4123.57(B) shall be in addition to compensation for periods
              of temporary total disability. Reference to concurrent
              payment of PPD and PTD benefits is conspicuously absent.
              Equally significant, the former versions of R.C. 4123.57(A)
              prohibit an application for PPD earlier than forty weeks after
              the date of termination of the latest period of total disability.
              This latter provision effectively prevents concurrent payment
              and, in the cases at bar, justifies the dismissal of claimants'
              PPD applications, i.e., if the permanent total disability
              compensation is ongoing, then the requisite forty-week
              waiting period obviously has not elapsed.

(Emphasis sic.) Id. at 475.

       {¶ 30} Later that same year, the Supreme Court of Ohio decided State ex rel.
Missik v. Youngstown, 65 Ohio St.3d 189 (1992). In that case, George Missik suffered
No. 14AP-695                                                                         10

three injuries while working for the city of Youngstown and had three separate workers'
compensation claims. To simplify the fact pattern, claims A and B were allowed for
different back conditions, while claim C was allowed for neck and shoulder conditions.
Missik sought an award of PTD compensation listing only claims B and C and, in granting
him PTD compensation, the commission relied solely on claim B (back condition).
       {¶ 31} Later, Missik sought an award of PPD compensation in claims A and C. The
commission dismissed his application in its entirety because Missik had already been
awarded PTD compensation, and he filed a mandamus action. This court denied the writ
and Missik's appeal was heard before the Supreme Court of Ohio. Finding that the
commission's award of PTD compensation was attributed exclusively to claim B (back),
the Supreme Court concluded that the PTD award did not encompass claim C (neck and
shoulder). As such, the Supreme Court found that the commission abused its discretion
by dismissing Missik's PPD application in claim C, allowed for the neck and shoulder
conditions. However, because claims A and B both involved back injuries, the Supreme
Court found the commission did not abuse its discretion in dismissing Missik's PPD
application with regards to claim A because his award of PTD compensation had been
based on claim B already involving a back condition. The Supreme Court ordered the
BWC to consider the merits of the application.
       {¶ 32} Later, in State ex rel. Hoskins v. Indus. Comm., 87 Ohio St.3d 560 (2000),
the Supreme Court discussed its decision in Murray, stating:
              In State ex rel. Murray v. Indus. Comm. (1992), 63 Ohio
              St.3d 473, * * * we held that permanent partial and
              permanent total disability compensation could not be
              concurrently paid for the same conditions.

Id. at 560.

       {¶ 33} However, as noted in the quote from Murray, the question the Supreme
Court actually addressed in Murray was: "Can a claimant concurrently receive PPD and
PTD for the same injury?"
       {¶ 34} James L. Hoskins was awarded PPD compensation from November 11, 1988
to May 24, 1990. Hoskins was later granted PTD compensation and the award was back-
dated to begin December 2, 1988. The PTD award also deducted the amount of PPD paid
to Hoskins from December 2, 1988 through May 24, 1990.
No. 14AP-695                                                                               11

          {¶ 35} Hoskins alleged the commission abused its discretion by deducting the
amount of PPD from his PTD award.             This court denied his request for a writ of
mandamus and Hoskins appealed that decision. Finding that it was inappropriate for
Hoskins to simultaneously be both partially and totally disabled for the "same
conditions," the Supreme Court affirmed this court's denial of the writ.
          {¶ 36} More recently, this court decided State ex rel. Mosley v. Indus. Comm., 10th
Dist. No. 13AP-127, 2014-Ohio-1710. Kelly R. Mosley sustained one work-related injury,
and her claim was allowed for 23 physical conditions and one psychological condition.
The commission awarded her PTD compensation finding that she was unable to perform
any sustained remunerative employment solely as a result of the medical impairment
caused by the allowed psychological condition.          As such, the commission found it
unnecessary to consider or analyze the non-medical disability factors and did not rely on
any medical reports which pertained to the allowed physical conditions.
          {¶ 37} Later, Mosley filed an application for PPD compensation based on her
allowed physical conditions; however, the BWC dismissed her application because she
had already been found to be permanently and totally disabled.
          {¶ 38} Mosley filed a mandamus action in this court and the matter was referred to
a magistrate. The court's analysis began with the observation that the commission's
award of PTD compensation was based exclusively on one allowed psychological
condition (organic personality syndrome) and was not premised on any of the numerous
physical claim allowances. The magistrate cited and discussed the Missik decision and
found that it compelled the issuance of a writ of mandamus. Specifically, the magistrate
stated:
                In the magistrate's view, based upon the undisputed facts of
                record, the Missik decision compels the issuance of a writ of
                mandamus in this action.

                The magistrate acknowledges that, unlike Missik, this action
                does not involve multiple industrial claims, but only the one
                industrial claim. Here, the PTD award is premised upon only
                1 of the 23 allowed conditions of the claim. Therefore, by his
                application for the determination of the percentage of PPD in
                his sole industrial claim, relator was not seeking PPD
                compensation for the same conditions (or condition) that
                support his PTD award. Both the bureau and the commission
                failed to recognize this distinction in their orders, and, as a
No. 14AP-695                                                                             12

              result, relator was denied a statutory right under R.C.
              4123.57.

              Clearly, under R.C. 4123.57, upon the filing of the
              application, the bureau was required to schedule relator for a
              medical examination by the bureau's medical section at least
              for the allowed physical conditions of the claim. Following
              the issuance of the medical report, the bureau was required
              to make a tentative order.

              Because the bureau failed to schedule relator for a medical
              examination and to issue a tentative order, and the
              commission's hearing officers failed to order the bureau to
              do so, a writ of mandamus must issue.

Id. at ¶ 38-40.

       {¶ 39} In the present case, the magistrate specifically notes the date of injury is
December 29, 1999 and claimant's claim is allowed for several back conditions. It is
undisputed that claimant underwent back surgeries in 2001 and 2002, and all the medical
evidence filed in this mandamus action clearly establishes that claimant's back conditions
worsened after the surgeries. Although the stipulated evidence filed at this time does not
indicate the dates claimant received TTD disability compensation following the second
surgery, such compensation would have been payable.          Once the then-allowed back
conditions reached maximum medical improvement ("MMI") following the second
surgery, claimant's award of TTD compensation would have been terminated. At that
time, although all the medical evidence demonstrated that the surgery was a failure,
claimant's claim was not yet allowed for post laminectomy syndrome (a condition that
essentially states the surgery made the condition worse).          Once his then-allowed
conditions had reached MMI, claimant likely filed his application for PTD compensation.
Once TTD compensation was terminated, claimant would not have been receiving any
compensation and clearly was not working. (Claimant could have waited six months and
then sought an award of PPD but, instead, filed an application for PTD compensation.)
PTD compensation was granted in April 2004 and later, in 2009, when claimant's claim
was additionally allowed for the post laminectomy syndrome, claimant sought an award
of PPD compensation.
       {¶ 40} Claimant's claim is still only allowed for conditions related to his back and,
certainly, at the time PTD was awarded, the medical evidence would have established that
No. 14AP-695                                                                         13

his conditions worsened following the surgery and, yet, claimant had neither sought nor
had he been awarded any PPD compensation acknowledging the fact that the surgery had
failed to alleviate his symptoms and had, instead, caused a worsening of his back
problems.
      {¶ 41} So, in considering this issue, should the court focus on "body parts" or on
"conditions?" Here, the commission focused on "conditions" and determined the BWC
should follow R.C. 4123.57 and schedule claimant for a medical examination and issue a
tentative order.    Given the facts of the aforementioned cases and the language and
analysis provided in each one, the magistrate finds the commission did not abuse its
discretion here when it ordered the BWC to process claimant's application for PPD
compensation.      As such, it is this magistrate's decision that 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).
