[Cite as State ex rel. Ado Staffing, Inc. v. Indus. Comm., 2018-Ohio-236.]


                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                   :
Ado Staffing, Inc.,
                                                        :

                 Relator,                               :

v.                                                      :                       No. 17AP-171

The Industrial Commission of Ohio                       :                    (REGULAR CALENDAR)
and Julie L. Ledesma,
                                                        :
                 Respondents.
                                                        :




                                             D E C I S I O N

                                     Rendered on January 23, 2018


                 On brief: Fisher & Phillips LLP, Robert M. Robenalt, and
                 Meghan M. Delaney, for relator.

                 On brief: Michael DeWine, Attorney General, and John
                 Smart, for respondent Industrial Commission of Ohio.

                 On brief: Bridges, Jillisky & Streng, LLC, Nancy L. Jillisky,
                 and Mark A. Stine, for respondent Julie L. Ledesma.


                                              IN MANDAMUS
DORRIAN, J.
        {¶ 1} In this original action, relator, Ado Staffing, Inc., requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order which awarded temporary total disability compensation to respondent Julie L.
Ledesma, and order the commission find that claimant is not entitled to said
compensation.
No. 17AP-171                                                                             2


       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
that this court deny relator's request for a writ of mandamus finding it to be premature as
relator has already filed a notice of appeal in the Union County Court of Common Pleas
pursuant to R.C. 4123.512.
       {¶ 3} No party has filed objections to the magistrate's decision. The case is now
before this court for review.
       {¶ 4} No error of law or other defect is evident on the face of the magistrate's
decision. Therefore, we adopt the findings of fact and conclusions of law contained
therein. Accordingly, relator's request for a writ of mandamus is denied.
                                                               Writ of mandamus denied.
                           BROWN, P.J., and TYACK, J., concur.
No. 17AP-171                                                                               3


                                    APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Ado Staffing, Inc.         :
d.b.a. Adecco Employment Services,
                                             :
               Relator,
                                             :
v.                                                                 No. 17AP-171
                                             :
Industrial Commission of Ohio                                 (REGULAR CALENDAR)
and                                          :
Julie L. Ledesma,
                                             :
               Respondents.
                                             :



                          MAGISTRATE'S DECISION

                               Rendered on August 25, 2017



               Fisher & Phillips LLP, Robert M. Robenalt, and Meghan M.
               Delaney, for relator.

               Michael DeWine, Attorney General, and John Smart, for
               respondent Industrial Commission of Ohio.

               Bridges Jillisky & Streng, LLC, Nancy L. Jillisky, and
               Mark A. Stine, for respondent Julie L. Ledesma.


                                    IN MANDAMUS

      {¶ 5} Relator, Ado Staffing, 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 awarded temporary total disability ("TTD")
No. 17AP-171                                                                            4


compensation to respondent, Julie L. Ledesma ("claimant"), and ordering the
commission to find that she is not entitled to that compensation.
Findings of Fact:
       {¶ 6} 1. Claimant sustained a work-related injury on July 14, 2015 while
employed by relator and working at Honda.
       {¶ 7} 2. Claimant's claim was originally allowed for "cervical sprain."
       {¶ 8} 3. Following a hearing before a staff hearing officer ("SHO") on April 20,
2016, claimant was awarded TTD compensation from November 17, 2015 through
April 20, 2016 and continuing on submission of medical proof.
       {¶ 9} 4. On June 29, 2016, claimant filed a C-86 motion asking that her workers'
compensation claim be additionally allowed for the following conditions: "bilateral C6
radiculopathy;" "bulging disc at C5-6;" and "substantial aggravation of pre-existing
degenerative joint disease at C5-6."
       {¶ 10} 5. Claimant's motion was supported by the May 16, 2016 MRI, a June 2,
2016 nerve conduction study, and an office note from her treating physician Peter R. Hoy,
D.O., dated June 16, 2016.
       {¶ 11} 6. Following a hearing before a district hearing officer ("DHO") on July 28,
2016, the commission granted claimant's motion and her claim was additionally allowed
for "bilateral C6 radiculopathy; bulging disc at C5-6; and substantial aggravation of pre-
existing degenerative joint disease at C5-6."
       {¶ 12} 7. Relator appealed and that matter was heard before an SHO on
September 13, 2016. An SHO affirmed the prior DHO order and claimant's claim was
additionally allowed for those conditions.
       {¶ 13} 8. Relator's appeal and request for reconsideration concerning the
allowance of the additional conditions were both rejected.
       {¶ 14} 9. After claimant asked that her claim be recognized for additional
conditions but before a hearing was held, relator filed a motion on July 15, 2016 asking
the commission to terminate claimant's TTD compensation based on a finding that her
allowed conditions had reached maximum medical improvement ("MMI"), and she was
able to return to her former position of employment. In support of its motion, relator
attached the July 7, 2016 report of Mark Finneran, M.D. In his report, Dr. Finneran
No. 17AP-171                                                                            5


identified the allowed condition in claimant's claim as cervical sprain and indicated that
claimant alleged she also had the following conditions as a result of the work-related
injury:
                [One] Bilateral C6 radiculopathy.
                [Two] Bulging disc C5.
                [Three] Substantial aggravation of pre-existing degenerative
                joint disease, C5-6.

          {¶ 15} Dr. Finneran also opined that, in his professional opinion, the medical
evidence did not support the existence of bilateral C6 radiculopathy, but noted that
claimant did have an age-related bulging disc at C5-6 which was not clinically significant
nor neuro compressive. He also opined that the disc anomaly at C5-6 was a natural
consequence of the deterioration of tissue in claimant's spine over time. As such, he
ultimately opined that those conditions should not be allowed and further opined that
claimant's condition of cervical sprain had reached MMI.
          {¶ 16} 10. Relator's motion to terminate claimant's TTD compensation was
heard before a DHO on August 26, 2016. The DHO relied on the medical report of Dr.
Finneran and terminated claimant's TTD compensation.
          {¶ 17} 11. Claimant appealed and the matter was heard before an SHO on October
6, 2016.
          {¶ 18} 12. Inasmuch as claimant's claim had now been allowed for additional
conditions, relator submitted the October 4, 2016 addendum report of Dr. Finneran who
opined that the new conditions had reached MMI and the consult with Dr. Patel was
unnecessary.
          {¶ 19} 13. The SHO vacated the prior DHO order and determined that claimant
had not reached MMI specifically noting that, following the allowance of new conditions,
Peter Hoy, D.O. was requesting a consultation with Dr. Amish Patel and, as such, it was
Dr. Hoy's opinion that her allowed conditions had not reached MMI. Specifically, the
SHO stated:
                This Hearing Officer does not find the Injured Worker to
                have reached maximum medical improvement for all of the
                allowed conditions in this claim. Therefore, payment of
                temporary total disability compensation shall be reinstated
                as of the termination date 08/26/2016 and shall continue
No. 17AP-171                                                                                6


               with further submission of appropriate medical proof of
               disability.

               This Hearing Officer notes this claim was recently recognized
               for bilateral C6 radiculopathy, bulging disc C5-6 and
               substantial aggravation of pre-existing degenerative joint
               disease C5-6 by Staff Hearing Officer order issued
               09/16/2016. From this Hearing Officer's review of the
               07/28/2016 and 09/22/2016 office notes of Peter Hoy, D.O.,
               this Hearing Officer finds Dr. Hoy diagnosed the Injured
               Worker with these newly allowed conditions and
               recommended the Injured Worker see Dr. Patel for further
               evaluation that may include injection therapy. A request for a
               consultation with Dr. Amish Patel was made on 08/09/2016
               and is likely pending the adjudication process as it was
               denied by the self-insuring Employer. Based on the newly
               allowed conditions and recommended evaluation, this
               Hearing Officer does not find the Injured Worker to have
               reached a treatment plateau and thus has not reached
               maximum medical improvement.

       {¶ 20} 14. Relator's further appeal was refused by order of the commission mailed
November 2, 2016.
       {¶ 21} 15. Relator filed a motion for reconsideration which was denied by order of
the commission mailed December 10, 2016.
       {¶ 22} 16. On December 1, 2016, relator filed a notice of appeal in the Union
County Court of Common Pleas challenging the allowance of claimant's claim for the
additional conditions.
       {¶ 23} 17. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 24} Because of relator's pending appeal pursuant to R.C. 4123.512 challenging
the allowance of the additional conditions in claimant's claim, the magistrate finds
relator's challenge to the payment of TTD compensation based on those newly allowed
conditions is not ripe for adjudication.
       {¶ 25} 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
No. 17AP-171                                                                             7


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).
       {¶ 26} 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).
       {¶ 27} 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).
       {¶ 28} Despite the fact that relator has appealed the allowance of the new
conditions to the common pleas court pursuant to R.C. 4123.512 and the award of TTD
compensation was granted based on the newly allowed conditions, relator argues that
mandamus is appropriate because the medical evidence on which the commission relied
to award TTD compensation does not support the award. Specifically, relator asserts that
Dr. Hoy's opinion is contrary and equivocal and, pursuant to State ex rel. Eberhardt v.
Flxible Corp., 70 Ohio St.3d 649 (1994), does not constitute some evidence.
No. 17AP-171                                                                              8


       {¶ 29} When a claim has been initially allowed or new conditions have been
allowed, the employer may challenge the allowance by filing an appeal in common pleas
court. In the event the injured worker is awarded compensation based on the allowance,
that compensation is paid while the appeal is pending.
       {¶ 30} For example, in State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio
St.3d 88 (1998), the employer appealed the allowance of the workers' compensation claim
of L.B. Woolbright to common pleas court pursuant to R.C. 4123.512. While that appeal
was pending, the employer filed a mandamus action challenging the award of benefits
ordered by the commission based on the conditions that were the subject of the appeal.
The Supreme Court of Ohio held that the employer's controversy lacked ripeness, stating:
               [The employer] is asking us to address the abstract and the
               hypothetical. The allowance of claimant's entire workers'
               compensation claim is in dispute, as are the medical
               conditions allegedly related to it. Therefore, EFC is
               effectively asking us to answer the question that, if the claim
               is allowed, and if it is allowed only for silicosis, is claimant
               entitled to temporary total disability compensation? This is
               an inappropriate question for review.

Id. at 89.


       {¶ 31} In the present case, relator asserts that the medical evidence on which the
commission relied does not support the award and that the commission further abused its
discretion by awarding TTD benefits based on newly allowed conditions when there was
no pending request for TTD compensation based on those additional conditions. Because
of this distinction, relator argues that the decision in Elyria Foundry does not apply.
       {¶ 32} In making its argument, relator cites this court's decision in State ex rel.
Wheeling-Pittsburgh Steel Corp. v. Indus. Comm., 10th Dist. No. 06AP-175, 2007-Ohio-
2728. Wheeling-Pittsburgh sought a writ of mandamus ordering the commission to
vacate the SHO order which allowed the industrial claim of Carl Filler for occupational
asthma and chronic obstruction pulmonary disease and scheduling a hearing on the
allowance of the claim before a DHO. Wheeling-Pittsburgh argued that the commission
failed to follow the statutory process of R.C. 4123.511 which provided that contested
claims would be referred to a DHO for hearing, and any party dissatisfied with the district
No. 17AP-171                                                                              9


level decision may appeal that decision to an appropriate SHO for hearing. In that case,
Filler filed an FROI-1 which was dismissed by a DHO. Filler appealed and, following a
hearing, an SHO issued an interlocutory order referring the claim for an examination by a
qualified physician. On receipt of the examination results, an SHO held a hearing and
allowed the claim for the conditions as requested.
       {¶ 33} Wheeling-Pittsburgh filed a notice of appeal pursuant to R.C. 4123.512 and
also filed a mandamus action in this court asserting that the process used by the
commission unlawfully denied Wheeling-Pittsburgh its statutory right to a district level
hearing on the merits.
       {¶ 34} The commission asserted that, pursuant to Elyria Foundry, the proceedings
which Wheeling-Pittsburgh initiated in the common pleas court to have the claim
disallowed in its entirety rendered the mandamus action not ripe for review. This court
disagreed with the commission's argument and found that Wheeling-Pittsburgh's
challenge to the commission's failure to follow the statutory process of R.C. 4123.511 did
not fit the criteria for an appeal under R.C. 4123.512 and further distinguished Elyria
Foundry on grounds that, in that case, the commission had used the lawful hearing
process to enter a final order that both allowed a claim and awarded TTD compensation.
       {¶ 35} In the present case, there is no allegation that the commission did not follow
the proper statutory process. While relator does assert that claimant did not seek a new
period of TTD compensation based on the newly allowed conditions, relator's motion to
terminate claimant's TTD compensation based on a finding that the allowed conditions
had reached MMI was before the commission. In denying that motion, the payment of
TTD compensation continued based on the newly allowed conditions.
       {¶ 36} Relator is challenging the commission's reliance on certain evidence. The
magistrate finds that the decision in Elyria Foundry is controlling here. As is clear from
the SHO order and the medical evidence on which the SHO relied, relator's motion to
terminate claimant's TTD compensation was denied because the commission relied on the
medical evidence of Dr. Hoy to find, not only that claimant's claim should be allowed for
additional conditions but that, based on additional conditions, she should be referred for
a consultation with Dr. Patel, additional treatment may be indicated, and TTD
No. 17AP-171                                                                       10


compensation should continue. This is the sort of situation envisioned by the court's
holding in Elyria Foundry.
      {¶ 37} Based on the foregoing, it is this magistrate's decision that relator's
mandamus action is premature as relator has already filed a notice of appeal in the
common pleas court. As such, 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).
