[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. McCormick v. McDonald’s, Slip Opinion No. 2015-Ohio-123.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.
                         SLIP OPINION NO. 2015-OHIO-123
    THE STATE EX REL. MCCORMICK, APPELLANT, v. MCDONALD’S ET AL.,
                                      APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
             may be cited as State ex rel. McCormick v. McDonald’s,
                         Slip Opinion No. 2015-Ohio-123.]
Workers’ Compensation—Determination of maximum medical improvement—
        Physician’s opinion regarding maximum medical improvement is not
        automatically rendered premature by a subsequent request for and
        approval of a treatment plan—Judgment affirmed.
  (No. 2013-0577—Submitted September 9, 2014—Decided January 20, 2015.)
              APPEAL from the Court of Appeals for Franklin County,
                           No. 11AP-902, 2013-Ohio-766.
                             _______________________
        Per Curiam.
        {¶ 1} Appellant, Ruth McCormick, appeals the judgment of the Tenth
District Court of Appeals that denied her request for a writ of mandamus
requiring the appellee Industrial Commission to vacate its order terminating her
temporary-total-disability compensation.
                             SUPREME COURT OF OHIO




       {¶ 2} The commission’s order was based on the opinion of Amardeep
Chauhan, D.O., that McCormick had reached maximum medical improvement.
McCormick argued that Dr. Chauhan’s opinion was factually inaccurate and
should not have been considered under State ex rel. Sellards v. Indus. Comm., 108
Ohio St.3d 306, 2006-Ohio-1058, 843 N.E.2d 753.                  Sellards held that a
physician’s report concluding that the claimant had reached maximum medical
improvement could not serve as evidence to deny temporary-total-disability
compensation where another physician’s plan for further treatment was approved
by the commission the same day as the maximum-medical-improvement
assessment and the physician who issued the assessment was not aware of the
approved plan.
       {¶ 3} The court of appeals distinguished Sellards and denied the writ.
For the reasons that follow, we affirm.
       {¶ 4} On December 6, 2002, McCormick slipped and fell while working
at a McDonald’s restaurant. Her workers’ compensation claim was allowed for
concussion, contusion of scalp, sprain of neck, bulging disc, aggravation of
preexisting degenerative disc disease, and bilateral stenosis.
       {¶ 5} On August 13, 2010, at the request of the Bureau of Workers’
Compensation, Dr. Chauhan conducted an independent medical examination to
determine the extent of McCormick’s disability.         Dr. Chauhan reviewed her
medical history, which included conservative treatment until 2006, a two-year
lapse, and then a return to the care of a chiropractor in 2008. Dr. Chauhan
reported that based on the medical history and his physical examination,
McCormick had reached a treatment plateau and was able to return to her former
position of employment without any restrictions. He reported that she did not
require further treatment for the allowed conditions.
       {¶ 6} On August 27, 2010, McCormick’s treating physician, Shawn M.
Donatelli, D.O., requested authorization for three steroid injections that were



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eventually approved by a managed-care organization.         On August 30, 2010,
McCormick’s chiropractor, Michael Getsy, D.C., estimated that McCormick
would reach maximum medical improvement in three months.
       {¶ 7} On August 31, 2010, the bureau moved to terminate temporary-
total-disability compensation based on Dr. Chauhan’s opinion that McCormick
had reached maximum medical improvement—a point at which R.C. 4123.56
mandates that temporary-total-disability compensation terminate. Following a
hearing on October 8, 2010, a district hearing officer granted the bureau’s request.
McCormick appealed.
       {¶ 8} Between September 14 and October 19, 2010, McCormick
received the three steroid injections. On November 17, 2010, a staff hearing
officer affirmed the order terminating temporary-total-disability compensation.
McCormick filed an appeal, which the commission refused. McCormick asked
the commission to reconsider, alleging that the November 17, 2010 order
contained a mistake of law and was contrary to the reasoning in Sellards. The
commission unanimously voted to deny reconsideration.
       {¶ 9} McCormick filed a complaint for a writ of mandamus. She alleged
that she continued to be temporarily and totally disabled as a result of her work-
related injury and that the commission’s decision to terminate benefits was not
supported by the evidence, was contrary to law, and was an abuse of discretion.
The court of appeals denied the writ of mandamus.
       {¶ 10} This matter is before the court on McCormick’s appeal as of right.
       {¶ 11} To be entitled to extraordinary relief in mandamus, McCormick
must establish that she has a clear legal right to the relief requested and that the
commission has a clear legal duty to provide it. State ex rel. Rouch v. Eagle Tool
& Machine Co., 26 Ohio St.3d 197, 198, 498 N.E.2d 464 (1986). To do so,
McCormick must demonstrate that the commission abused its discretion by
entering an order not supported by “some evidence” in the record. State ex rel.



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Avalon Precision Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-
2287, 846 N.E.2d 1245, ¶ 9.
       {¶ 12} The question before us is whether the commission’s order
terminating McCormick’s temporary-total-disability compensation was supported
by evidence in the record. The answer is yes. The report of Dr. Chauhan that
McCormick had reached maximum medical improvement was evidence
supporting the commission’s decision to terminate temporary-total-disability
compensation, and, contrary to McCormick’s assertion, Sellards does not apply to
invalidate Dr. Chauhan’s opinion.
       {¶ 13} R.C. 4123.56 mandates that payments for temporary total disability
stop when the injured worker has reached maximum medical improvement.
Maximum medical improvement is defined as


       a treatment plateau (static or well-stabilized) at which no
       fundamental functional or physiological change can be expected
       within reasonable medical probability in spite of continuing
       medical or rehabilitative procedures. An injured worker may need
       supportive treatment to maintain this level of function.


Ohio Adm.Code 4121-3-32(A)(1).
       {¶ 14} McCormick argues that Dr. Chauhan’s opinion that she had
reached maximum medical improvement was factually inaccurate when the
commission relied upon it because additional treatment (the steroid injections)
was approved in the interim. McCormick maintains that according to Sellards,
the commission cannot rely on a medical report that is based on a factually wrong
foundation.
       {¶ 15} In Sellards, the claimant suffered a back injury at work in 1998
that reached maximum medical improvement by January 2001. In November



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2001, he began seeing a psychiatrist; the commission subsequently allowed his
claim for depression.     On October 22, 2002, the commission approved his
psychiatrist’s treatment plan for psychotherapy and medication. Coincidentally,
on the same day, Sellards was examined by another psychiatrist, Dr. Allen Levy,
who concluded that Sellards’s psychiatric condition had reached maximum
medical improvement.
       {¶ 16} A district hearing officer relied on Dr. Levy’s report and
terminated temporary-total-disability compensation.          Sellards subsequently
submitted a letter from his treating psychiatrist, Dr. J.T. Spare, who explained that
there had been no opportunity to see if Sellards could benefit from treatment
because he had had difficulty getting the bureau to pay for prescriptions.
Nevertheless, a staff hearing officer affirmed the finding of maximum medical
improvement.
       {¶ 17} This court granted Sellards’s request for a writ of mandamus,
briefly explaining:


               The single issue presented is an evidentiary one. Sellards
       challenges Dr. Levy’s opinion of maximum medical improvement
       as premature based on Dr. Spare’s contemporaneously approved
       treatment plan and urges its disqualification.       We agree with
       Sellards and accordingly reverse the judgment of the court of
       appeals.
               Prior to his examination by Dr. Levy, Sellards struggled to
       get the treatment recommended by his treating physician, Dr.
       Spare, who believed that Sellards would benefit from medication
       and psychotherapy. The commission, in approving that treatment,
       obviously wanted to give Sellards the opportunity for further
       treatment. We believe that Sellards merits that opportunity before



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       maximum medical improvement is assessed. Dr. Levy’s opinion
       was premature based on the commission’s contemporaneous
       approval of Dr. Spare’s treatment program. Dr. Levy’s opinion
       could not, therefore, serve as evidence supporting denial of
       temporary total disability compensation.


Sellards, 108 Ohio St.3d 306, 2006-Ohio-1058, 843 N.E.2d 753, at ¶ 19-20.
       {¶ 18} The commission maintains that this case is vastly different from
Sellards. In Sellards, the claimant’s depression was a recently allowed condition
that had not been adequately treated, and the commission had approved a
treatment plan on the same day that Dr. Levy examined Sellards. In this case, Dr.
Chauhan knew at the time of his examination that McCormick had received years
of therapy and chiropractic treatments for her allowed conditions, and there was
no contemporaneously approved treatment plan.
       {¶ 19} Sellards was narrowly decided based on its unique facts. This
court’s conclusion that the doctor’s opinion was premature was narrowly based on
two factors: the bureau’s error or delay in paying for Sellards’s psychiatric
prescriptions and Dr. Levy’s lack of awareness of the contemporaneous approval
of Dr. Spare’s treatment plan when he issued his report. Id. Those factors do not
appear in this case. Although McCormick asks us to broadly interpret Sellards,
our analysis in that case did not indicate that a finding of maximum medical
improvement would be premature or invalid whenever other evidence comes into
existence after the finding was made. Thus, McCormick’s argument fails.
       {¶ 20} McCormick asks us to take notice of the recent decision in State ex
rel. Barnett v. Indus. Comm., 10th Dist. Franklin No. 13AP-161, 2014-Ohio-311,
in which the appellate court concluded that the opinion of David A. Garcia, D.O.,
regarding maximum medical improvement was premature, citing Sellards as
authority. At the time Dr. Garcia issued his opinion, he believed that a proposed



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treatment plan had been denied.       The commission later approved the plan;
nevertheless, a staff hearing officer relied on Dr. Garcia’s opinion to terminate
temporary-total-disability compensation. The court of appeals concluded that Dr.
Garcia’s opinion relied on his incorrect belief that the treatment plan had not been
authorized, and thus it could not support the commission’s decision to terminate
temporary-total-disability compensation.
       {¶ 21} In Barnett, the court of appeals focused on the facts of the case,
i.e., that Dr. Garcia was aware that treatment had been proposed but believed that
it was not authorized. Id. at ¶ 47. Those factors do not appear in this case. Dr.
Chauhan did not know that two weeks after his report was issued, McCormick’s
treating physician would ask a managed-care organization for authorization to
administer three steroid injections. Thus, Barnett, like Sellards, is distinguishable
and does not support McCormick’s argument that Dr. Chauhan’s opinion was
factually inaccurate.
       {¶ 22} In conclusion, Sellards does not automatically render premature a
doctor’s opinion on maximum medical improvement when there is a subsequent
request for and approval of a treatment plan. Thus, the court of appeals did not
abuse its discretion when it concluded that Sellards did not apply.
       {¶ 23} Finally,    McCormick      requests   oral   argument    pursuant    to
S.Ct.Prac.R. 17.02(B). Oral argument in this appeal as of right is subject to our
discretion. S.Ct.Prac.R. 17.02(A). In exercising that discretion, we consider
“whether the case involves a matter of great public importance, complex issues of
law or fact, a substantial constitutional issue, or a conflict among courts of
appeals.” State ex rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118,
2006-Ohio-5339, 855 N.E.2d 444, ¶ 15, citing State ex rel. United Auto.,
Aerospace & Agricultural Implement Workers of Am. v. Ohio Bur. of Workers’
Comp., 108 Ohio St.3d 432, 2006-Ohio-1327, 844 N.E.2d 335, ¶ 25–26. Here,




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this is a dispute over the sufficiency of the evidence, and the parties’ briefs are
sufficient to resolve the issue raised. We therefore deny the motion.
       {¶ 24} We affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                                 ___________________
       Green Haines Sgambati Co., L.P.A., Ronald E. Slipski, Shawn D. Scharf,
and Charles W. Oldfield, for appellant.
       Michael DeWine, Attorney General, and Cheryl J. Nester, Assistant
Attorney General, for appellee Industrial Commission.
                                 ___________________




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