[Cite as State ex rel. Hart v. Indus. Comm., 2020-Ohio-1396.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel.                                :
Christopher W. Hart,
                                                     :
                 Relator,
                                                     :             No. 19AP-118
v.
                                                     :          (REGULAR CALENDAR)
Industrial Commission of Ohio et al.,
                                                     :
                 Respondents.
                                                     :




                                            D E C I S I O N

                                       Rendered on April 9, 2020


                 On brief: The Bainbridge Firm, LLC, and Casaundra L.
                 Johnson, for relator.

                 On brief: Dave Yost, Attorney General, and Eric J. Tarbox,
                 for respondent Industrial Commission of Ohio.

                 On brief: Michael Soto, for respondent City of Portsmouth.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION
DORRIAN, J.
        {¶ 1} Relator, Christopher W. Hart, brings this original action seeking a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order which denied him a percentage of permanent partial disability ("PPD") award
based on the report of Steven Wunder, M.D., and ordering the commission to exclude Dr.
Wunder's report from evidentiary consideration, and grant him a PPD award.
No. 19AP-118                                                                                 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 rendered a decision, including findings of fact
and conclusions of law, which is appended hereto. The magistrate concluded relator has
not demonstrated the commission abused its discretion when it relied on the report of Dr.
Wunder and concluded relator did not have a percentage of impairment. Accordingly, the
magistrate recommended relator's request for a writ of mandamus be denied.
          {¶ 3} Relator filed two objections to the magistrate's decision:
                 [I.] The Magistrate conducted a de novo review of evidence
                 that was not relied upon by the Industrial Commission of Ohio
                 to find that Dr. Wunder's report was not equivocal.

                 [II.] The Magistrate erred in concluding Dr. Wunder's report
                 is not equivocal or internally inconsistent.

          {¶ 4} We begin by addressing relator's second objection.           Relator argues Dr.
Wunder's report contains internal inconsistencies relevant to the medical impairment
assessment. In particular, relator argues Dr. Wunder's report was equivocal because:
(1) there was no explanation in the report for relator's complaints of pain in the right chest
wall, and (2) the opinion was based on Table 15-2 of the American Medical Association
("AMA") Guidelines, but Dr. Wunder did not perform any testing as part of his
examination. The magistrate found Dr. Wunder's finding of no impairment was not
equivocal given the nature of his examination and the lack of subjective complaints made
by relator. The magistrate rejected relator's argument that Dr. Wunder's report should be
removed from evidentiary consideration.
          {¶ 5} Our "review of the commission's orders in mandamus is governed by the
'some evidence' standard." State ex rel. Simms v. Ford Motor Co., 10th Dist. No. 09AP-
165, 2010-Ohio-671, ¶ 4, citing State ex rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio
St.3d 197 (1986). If a medical report is either equivocal or internally inconsistent it is not
some evidence. State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-Ohio-6036,
¶ 11, citing State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649 (1994). Equivocation
"occurs 'when a doctor repudiates an earlier opinion, renders contradictory or uncertain
opinions, or fails to clarify an ambiguous statement.' " George at ¶ 15, quoting Eberhardt
at 657.
No. 19AP-118                                                                               3


       {¶ 6} We do not find Dr. Wunder's report to be equivocal or internally inconsistent.
Nor do we find Dr. Wunder's lack of testing to compromise his opinion based on Table 15-
2 of the AMA Guidelines. Relator's informing Dr. Wunder that he had no restrictions on
his activity is the basis of our conclusion. Relator states generally in his objections
"[i]Increased pain with deep breaths and exertion has an impact on the ability to perform
activity." (Relator's Obj. at 10.) However, relator informed Dr. Wunder he had no
restrictions. Furthermore, the commission rejected and did not determine to be some
evidence upon which it could rely, the reports of relator's doctors, Dr. John E. Ruch and Dr.
Donato J. Borrillo, which determined there was a restriction on activity. Accordingly,
relator's second objection is overruled.
       {¶ 7} In his first objection, relator argues the magistrate erred by conducting a de
novo review of the evidence by considering the reports of Drs. Ruck and Borrillo, which
were not relied on by the staff hearing officer, to determine that the report of Dr. Wunder
was not equivocal.
       {¶ 8} The commission is the exclusive evaluator of disability. State ex rel. Cafaro
Mgt. Co. v. Indus. Comm., 10th Dist. No. 12AP-638, 2013-Ohio-5104, ¶ 12, citing State ex
rel. Kelly Servs., Inc. v. Indus. Comm., 10th Dist. No. 05AP-1192, 2006-Ohio-5868, ¶ 3,
citing State ex rel. Kirkendall v. Indus. Comm., 87 Ohio St.3d 182, 183 (1999). The
commission relied only on the report of Dr. Wunder to support its denial of PPD. We agree
with relator that it is not the job of the magistrate to conduct a de novo review of the
evidence and to consider evidence which was not relied on by the commission. However,
the magistrate's discussion of the other doctors' reports was for purposes of comparing
relator's complaints to Drs. Ruch and Borrillo versus the complaints to Dr. Wunder. While
relator complained to Drs. Ruch and Borrillo about interruption of his activity, he did not
make the same complaint to Dr. Wunder. Relator informed Dr. Wunder he did not have
any restrictions on his activities. And the commission relied on Dr. Wunder's report.
Furthermore, we have resolved relator's second objection by only considering the report of
Dr. Wunder to determine it was not equivocal and constituted some evidence on which the
commission could rely. Accordingly, relator's first objection is overruled.
       {¶ 9} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
No. 19AP-118                                                                              4


determined the pertinent facts and applied the appropriate law. We therefore overrule
relator's two objections to the magistrate's decision and adopt the magistrate's decision as
our own, including the findings of fact and conclusions of law contained therein.
Accordingly, relator's request for a writ of mandamus is hereby denied.
                                                                     Objections overruled;
                                                                writ of mandamus denied.
                          BRUNNER and NELSON, JJ., concur.
No. 19AP-118                                                                            5


                                        APPENDIX
                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


State ex rel. Christopher W. Hart,           :

               Relator,                      :

v.                                           :                    No. 19AP-118

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

               Respondents.                  :



                          MAGISTRATE'S DECISION

                              Rendered on November 7, 2019



               The Bainbridge Firm, LLC, and Casaundra L. Johnson, for
               relator.

               Dave Yost, Attorney General, and Eric J. Tarbox, for
               respondent Industrial Commission of Ohio.

               Michael Soto, for respondent City of Portsmouth.


                                     IN MANDAMUS

       {¶ 10} Relator, Christopher W. Hart, has filed this original action requesting this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied him a percentage of permanent partial
disability ("PPD") award based on the report of Steven Wunder, M.D., ordering the
commission to exclude Dr. Wunder's report from evidentiary consideration, and grant him
a PPD award.
No. 19AP-118                                                                                6


Findings of Fact:
           {¶ 11} 1. Relator sustained a work-related injury on October 17, 2017 when a
dumpster hit him in the chest. Relator's workers' compensation claim would ultimately be
allowed for the following conditions: "[c]ontusion right front wall thorzx, right partial lung
atelectasis1; right lung contusion unilateral."
           {¶ 12} 2. A CT scan taken November 24, 2017 revealed the following relevant
impressions:
                   Probable subacute healing right anterior third through fifth
                   rib fractures. No pneumothorax identified. Moderate right
                   pleural effusion with associated atelectasis, likely secondary
                   hemathorax. Faint right upper lung ground-glass opacities,
                   which may be due to recent pulmonary contusion.

           {¶ 13} 3. Relator was seen by Dustin L. Johnson, M.D., on November 30, 2017.
Relator indicated that his "pain will fluctuate from day to day depending on activity level or
when he coughs. He rates his pain a 3/10 at this time."
           {¶ 14} 4. A report of the same date signed by Rachel Passarella, FNP-C, indicates
that relator had been tolerating a return to full-duty work.
           {¶ 15} 5. Relator treated with Marion R. Hochstetler, Jr., M.D. In his January 3,
2018 report, relator reported the following:
                   He reports shortness of breath, cough, and no other
                   associated symptoms. He denies fevers, chills, chest pain,
                   hemoptysis, weight loss, claudication, ischemic rest pain, and
                   fevers, chills, chest pain, shortness of breath, cough,
                   hemoptysis, weight loss, claudication, and ischemic rest pain.
                   He obtained CT chest and no studies prior to this visit. His CT
                   chest showed resolution of hemothorax and healing rib
                   fractures. No other complaints.

           {¶ 16} 6. In the February 26, 2018 report of Passarella, relator indicated that his
"chest is feeling better but is now having some abdominal pain." Under the examination
portion of her report, Passarella noted the following:
                   Lungs: The A-P diameter is normal. Breathing effort is
                   normal. Chest expansion is normal. The expiratory phase is
                   normal. A friction rub is not present. Rales are not present.
                   Wheezing is not present. Clear lung sounds.

1   Indicates a collapsed lung.
No. 19AP-118                                                                             7



               Chest: An open wound is not present. An abrasion is not
               present. Bruising is not present. Erythema is not present. Pain
               to palpation. A rash is not present. Swelling is not present.
               Pain on motion is not present. Pain to palpation is not present.

       {¶ 17} Passarella concluded as follows:

               Christopher has been tolerating full duty. At this time I believe
               Christopher's injury related to the injury date of 10/17/2017 is
               healed and stable. He is now MMI for the allowed conditions.
               I have encouraged him to follow-up with his family care
               provider regarding the abdominal pain. Christopher received
               a copy of the Medco 14 and Instructions. He was given an
               opportunity to ask questions about his care. Discharged today.

       {¶ 18} 7. On April 24, 2018, relator filed an application for the determination of
PPD.
       {¶ 19} 8. Relator was examined by Dr. Wunder. In his May 31, 2018 report,
Dr. Wunder noted relator's complaints:
               Currently, he indicated he has some right chest wall pain. It
               tends to come and go. He will notice this with a deep breath.
               It depends on his exertional level. He notes some pain in the
               morning. He does not have any restrictions on his activities.
               He indicated he has had pneumonia a few times and it kind of
               feels like that. He is not on any medication.

       {¶ 20} During his examination of relator, Dr. Wunder noted the following:

               He complained of some minor tenderness to palpation over
               the anterior chest wall, just superior and medial to the nipple
               line. His chest was clear. There were no rales or wheezes. His
               respiratory rate was 16. He had normal chest expansion
               without any difficulty.

       {¶ 21} Dr. Wunder identified and discussed the medical records which he reviewed
and then provided his conclusion that relator did not have a medical impairment as a result
of the allowed conditions, stating:
               The claimant does not have a medical impairment as a result
               of the recognized and allowed conditions in the claim. For the
               allowances of a contusion right front wall of thorax; partial
               lung atelectasis; lung contusion unilateral right, I utilized
               page 107, table 5-12. He had normal chest expansion and
No. 19AP-118                                                                                8


                   expiration without any restrictions. There are no restrictions
                   on his activities of daily living.

           {¶ 22} 9. In an order mailed June 13, 2018, the administrator of the Ohio Bureau of
Workers' Compensation ("BWC") relied on the report of Dr. Wunder and concluded that
relator was not entitled to a percentage of PPD award.
           {¶ 23} 10. Relator appealed and submitted the July 31, 2018 report of John E. Ruch,
D.C. In his report, Dr. Ruch indicated that relator presented with the following complaints:
                   He reports a burning sensation along the right lung/chest
                   field. He is frequent[l]y congested with difficulty Breathing.
                   The congestion is worse in the morning. He coughs frequently
                   which is intermittently productive. His reports that his energy
                   levels are low and activity is frequently interrupted due to
                   inability to catch his breath. He notes that his body
                   temperature is elevated upon waking in the morning and he is
                   usually sweating.

           {¶ 24} On examination, Dr. Ruch noted the following:

                   Visual inspection reveals no deformity. There is tenderness to
                   palpation along the right 3rd through 5th ribs. He is able to
                   take a deep inhalation. Pulse rate is 78 bpm. Auscultation2 of
                   the lung fields reveals diminished aeration over the right
                   upper lobe. There are no rales or gallups.

           {¶ 25} In ultimately assessing a ten percent whole person impairment, Dr. Ruch
noted:
                   The impairment will continue to effect the claimant's ability
                   with regard to the following common activities of daily living:
                   Physical activity, such as any activity that requires even
                   moderate exertion.

                   ***

                   This claimant continues to experience breathing restriction
                   and pulmonary dysfunction as a result of the recognized
                   conditions. It is my opinion within a reasonable degree of
                   medical certainty that the conditions are permanent in nature.
                   I would assess a revised permanent physical impairment of
                   10% whole man. The impairment figures and method of rating
                   are based on the AMA Guides to the Evaluation of Permanent

2   A medical term for listening with a stethoscope.
No. 19AP-118                                                                             9


               Impairment, 5th Edition revised using tables 5-12 page 107,
               (Class II pulmonary impairment).

(Emphasis sic.)
        {¶ 26} 11. Relator's appeal was heard before a district hearing officer ("DHO") on
August 29, 2018. The DHO affirmed the prior order of the administrator and, after relying
on the part of Dr. Wunder, concluded that relator did not have a percentage of PPD at this
time.
        {¶ 27} 12. Relator appealed and submitted the October 31, 2018 report of Donato J.
Borillo, M.D. At the time he met with Dr. Borillo, relator indicated that he continued to
have pain and discomfort especially with deep breaths. Dr. Borillo noted the following on
physical examination:
               The chest wall was tender on the right side, especially over the
               three through fifth ribs. He had fair expansion with some
               crackles at the bases.

        {¶ 28} Thereafter, Dr. Borillo identified the medical records which he reviewed and
assessed a ten percent whole person impairment, stating:
               For the allowed condition of lung contusion and partial lung
               atelectasis on the right, the ongoing medical burden and
               modification of activities is consistent with a three percent
               (3%) whole person impairment table 18-3, page 575. For the
               contusion of the right front wall of the thorax, we turn to page
               389, table 15-4 and assign a DRE Thoracic Category-II seven
               percent (7%) whole person impairment. Combined whole
               person impairment is ten percent (10%).

               13. Relator's appeal was heard before a staff hearing officer ("SHO") on
December 4, 2018. The SHO relied on the report of Dr. Wunder and concluded that
relator had not demonstrated that he had a percentage of PPD, stating:
               The Staff Hearing Officer affirms the District Hearing
               Officer's order, issued 08/31/2018 for the reason that it is
               supported by proof of record and is not contrary to law.
               Therefore, there is no basis for a percentage of permanent
               partial award or increase at this time and the Injured Worker's
               C-92 Application for the Determination of Percentage of
               Permanent Partial Disability or Increase of Permanent Partial
               Disability is denied.
No. 19AP-118                                                                               10


               This decision is based upon the report of: Steven Wunder,
               M.D., dated 05/31/2018.

       {¶ 29} 14. In an order mailed January 15, 2019, relator's request for reconsideration
was denied.
       {¶ 30} 15. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 31} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 32} 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).
       {¶ 33} 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).
       {¶ 34} Relator challenges the report of Dr. Wunder and asserts that it cannot
constitute some evidence on which the commission could properly rely. In making this
argument, relator first indicates that, inasmuch as Dr. Wunder noted that relator
complained of some minor tenderness to palpation over the anterior chest wall, Dr. Wunder
was required to provide a percentage of permanent impairment for that tenderness.
No. 19AP-118                                                                              11


Secondly, relator argues that, inasmuch as Dr. Wunder indicated that he utilized Table 5-
12, because he failed to perform any tests, his opinion must be excluded.
       {¶ 35} In State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649, 657 (1994), the
Supreme Court of Ohio summarized the distinction between the ambiguous, equivocal and
repudiated reports as follows:
               [E]quivocal medical opinions are not evidence. See, also,
               State ex rel. Woodard v. Frigidaire Div., Gen. Motors Corp.
               (1985), 18 Ohio St.3d 110 * * *. Such opinions are of no
               probative value. Further, equivocation occurs when a doctor
               repudiates an earlier opinion, renders contradictory or
               uncertain opinions, or fails to clarify an ambiguous state-
               ment. Ambiguous statements, however, are considered
               equivocal only while they are unclarified. [State ex rel.
               Paragon v. Indus. Comm., 5 Ohio St.3d 72 (1983).] Thus, once
               clarified, such statements fall outside the boundaries of [State
               ex rel. Jennings v. Indus. Comm., 1 Ohio St.3d 101 (1982)],
               and its progeny.

               Moreover, ambiguous statements are inherently different
               from those that are repudiated, contradictory or uncertain.
               Repudiated, contradictory or uncertain statements reveal that
               the doctor is not sure what he means and, therefore, they are
               inherently unreliable. Such statements relate to the doctor's
               position on a critical issue. Ambiguous statements, however,
               merely reveal that the doctor did not effectively convey what
               he meant and, therefore, they are not inherently unreliable.
               Such statements do not relate to the doctor's position, but to
               his communication skills. If we were to hold that clarified
               statements, because previously ambiguous, are subject to
               Jennings or to commission rejection, we would effectively
               allow the commission to put words into a doctor's mouth or,
               worse, discount a truly probative opinion. Under such a view,
               any doctor's opinion could be disregarded merely because he
               failed on a single occasion to employ precise terminology. In
               a word, once an ambiguity, always an ambiguity. This court
               cannot countenance such an exclusion of probative evidence.

Id. at 657.
       {¶ 36} A review of the three medical reports in evidence is necessary. When relator
was examined by Dr. Wunder, he indicated that he had some right chest wall pain which
tended to come and go. He noticed it with deep breaths and it depended on his exertional
level. He told Dr. Wunder that he did not have any restrictions on his activities. On
No. 19AP-118                                                                                12


examination, relator did complain of some minor tenderness to palpation over the anterior
chest wall.
       {¶ 37} When he was examined later by Dr. Ruch, relator told Dr. Ruch that he has a
burning sensation along the right lung/chest wall, that he is frequently congested and has
difficulty breathing. He reported that his energy levels were low and his activity is
frequently interrupted due to an inability to catch his breath. He also indicated he had
tenderness to palpation along the right third through fifth ribs, and Dr. Ruch concluded the
impairment will continue to affect his ability with regard to activities of daily living.
       {¶ 38} Similarly, when he was examined by Dr. Borillo, relator told him that he has
pain and discomfort especially with deep breaths. He also reported tenderness especially
over the right three through fifth ribs.
       {¶ 39} If one simply looks at relator's subjective complaints, he gave both Drs. Ruch
and Borillo the impression that his activities of daily living were impacted by the allowed
conditions in his claim. When he was examined by Dr. Wunder, he specifically said that his
activities of daily living were not interfered with and that he had no restrictions. Based on
his subjective presentation to Dr. Wunder, it does not make Dr. Wunder's report equivocal
for him to rely on the lack of subjective complaints made by relator when he assessed a zero
percent impairment. Further, relator cites no authority for the assertion that some minor
tenderness to palpation automatically equates with an actual impairment. From this point
of view, relator's first argument to disqualify the report of Dr. Wunder fails.
       {¶ 40} Relator also challenges Dr. Wunder's utilization of Table 5-12 of the American
Medical Association Guides for permanent disability. Table 5-12 is entitled Impairment
Classification for Respiratory Disorders, Using Pulmonary Function and Exercise Test
Results. Relator asserts that, inasmuch as Dr. Wunder did not subject relator to any
pulmonary function or exercise test, it was improper for Dr. Wunder to utilize Table 5-12
and this fact disqualifies Dr. Wunder's report from evidentiary consideration. At the outset,
section 5.10 addresses permanent impairment due to respiratory disorders and indicates
the following with regard to Table 5-12:
               Table 5-12 lists criteria for estimating the permanent
               impairment rating due to respirator disorders, using
               pulmonary function and exercise test results.

               ***
No. 19AP-118                                                                               13



               The classification system in Table 5-12 considers only
               pulmonary function measurements for an impairment rating.
               It is recognized that pulmonary impairment can occur that
               does not significant impact pulmonary function and exercise
               test results but that does impact the ability to perform
               activities of daily living, such as with bronchiectasis.

               In these limited cases, the physician may assign an
               impairment rating based on the extent and severity of
               pulmonary dysfunction and the inability to perform activities
               of daily living.

(Emphasis added.)
       {¶ 41} Although Dr. Wunder did not conduct any pulmonary tests, no other doctor
performed any pulmonary test either. However, based on the fact that relator informed Dr.
Wunder that he had no restrictions, the magistrate finds that Dr. Wunder's reference to
Table 5-12 is not fatal to his report especially given the preamble to that table.
       {¶ 42} The reality is that relator essentially told Dr. Wunder that he was not having
any problems with daily activities. It is undisputed that relator had returned to full duty at
work. His only complaint to Dr. Wunder was some minor tenderness on palpation. Given
the statements that he made to Dr. Wunder, the magistrate cannot say that Dr. Wunder's
finding of no impairment is in any way equivocal given the nature of his examination and
the lack of subjective complaints made by relator. Relator's argument that Dr. Wunder's
report should be removed from evidentiary consideration is simply not supported by the
record.
       {¶ 43} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it relied on the report of Dr.
Wunder and concluded that he did not have a percentage of impairment, and relator's
request for a writ of mandamus should be denied.

                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA




                               NOTICE TO THE PARTIES
No. 19AP-118                                                                        14


               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).
