[Cite as State ex rel. Mignella v. Indus. Comm., 2017-Ohio-8831.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Mary Mignella,                           :

                 Relator,                              :

v.                                                     :               No. 16AP-441

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

                 Respondents.                          :




                                         D E C I S I O N

                                    Rendered on December 5, 2017


                 On brief: Green Haines Sgambati Co., LPA, Shawn D.
                 Scharf, and Charles W. Oldfield, for relator.

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

                                  IN PROCEDENDO
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

BROWN, J.
        {¶ 1} Relator, Mary Mignella, has filed this original action requesting that this
court issue a writ of procedendo ordering respondent Industrial Commission of Ohio
("commission") to vacate two orders that (1) refer relator for permanent total disability
("PTD") compensation for another medical examination, and (2) suspend the application
until relator appears for another medical examination. Relator requests the writ order the
commission to proceed to final judgment on the PTD application absent another medical
report from a physician of the commission's choice.
        {¶ 2} The writ of procedendo action was referred to a magistrate of this court,
pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The
No. 16AP-441                                                                               2

magistrate issued the attached decision, including findings of fact and conclusions of law,
and recommended this court deny relator's writ of procedendo. Relator has filed an
objection to that decision.
       {¶ 3} In his decision, the magistrate reasoned that it is, at best, premature for
relator to challenge the administrative proceedings of the commission, and relator has an
adequate remedy by submitting to the additional medical examination and then arguing
the merits of her PTD application based on the evidence.
       {¶ 4} In her objection, relator argues she does not have an adequate
administrative remedy. She claims that requiring her to attend a second commission
specialist examination that is not legally required is not an adequate remedy. Relator
claims that if there were to be consideration of any additional examinations on the issue
of PTD, the Ohio Administrative Code would have outlined such. She argues there is no
legal mechanism within the framework of the Ohio Administrative Code to conduct
repeated examinations simply because the commission determines at a merit hearing that
it is not satisfied with its first examination. She points out that neither an injured worker
nor employer is provided an opportunity to continue a merit hearing and attempt to
remedy inconsistent or insufficient medical evidence by obtaining further medical
evidence.
       {¶ 5} We find relator's objection to be without merit. In reaching its
determination, the magistrate relied on R.C. 4123.53(A) and (C), Ohio Adm.Code 4121-3-
12, and State ex rel. Clark v. Indus. Comm., 78 Ohio St.3d 509 (1997). R.C. 4123.53(A)
permits the commission to require an employee to submit to a medical examination "at
any time" and "from time to time" as provided by the rules of the commission or the
commission administrator. R.C. 4123.53(C) and Ohio Adm.Code 4121-3-12 provide that
the employee's right to have her claim considered is suspended if the employee refuses to
submit to a medical examination. Clark interpreted R.C. 4123.53 (now R.C. 4123.53(A)),
and found that R.C. 4123.53 does not limit the number of medical examinations that the
commission may schedule, although the commission may not act in an unreasonable,
arbitrary, or unconscionable way in scheduling such, and the additional medical
examinations must be necessary or of assistance in determining PTD.
No. 16AP-441                                                                             3

      {¶ 6} We agree with the magistrate that the order of the staff hearing officer
("SHO") provided a reasonable explanation for why an additional medical examination
was necessary and would be of assistance. The SHO explained that Dr. Elizabeth Mease's
examination did not correspond with the guidelines outlined by the American Medical
Association. Because R.C. 4123.53(A) permits the commission to require an employee
submit to a medical examination at any time, Clark indicates there is no limit on the
number of medical examinations the commission may schedule so long as they are
reasonable and necessary or of assistance, and R.C. 4123.53(C) and Ohio Adm.Code 4121-
3-12 allow the commission to suspend consideration of a claim until the employee
submits to an ordered medical examination; we cannot find the SHO had a duty to
proceed in the present case when relator refused to submit to the additional medical
examination. In addition, although not cited by the magistrate, Ohio Adm.Code 4121-3-
09(A)(1)(b)(5) provides that the commission may "at any point in the processing of an
application for benefits" require the employee to submit to a physical examination. This
code section provides further authority for the SHO's order for relator to undergo an
additional examination.
      {¶ 7} Insofar as relator also argues that she does not have an adequate remedy in
the ordinary course of law, we disagree. Relator's argument is largely premised on the
belief that the remedy of undergoing the additional medical examination and then
arguing the merits of her PTD application is inadequate because the additional medical
examination is not "legally" required. However, we have found above that the commission
has the authority to order medical examinations at any time. Furthermore, as cited by the
magistrate, this court has before found, in State ex rel. Daniels v. CHS Greystone, Inc.,
10th Dist. No. 11AP-394, 2012-Ohio-2268, that a claimant had an adequate remedy at law
by way of a final commission determination after being required to submit to an
additional medical examination. In Daniels, as in the present case, we found the writ
action was premature, after the claimant tried to file a request for writ challenging the
commission's interlocutory order that rejected an initial medical examination and ordered
an additional examination. Therefore, we find this argument without merit.
      {¶ 8} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of relator's objection, we overrule
No. 16AP-441                                                                             4

the objection and adopt the magistrate's findings of fact and conclusions of law. Relator's
request for a writ of procedendo is denied.
                                          Objection overruled; writ of procedendo denied.

                    TYACK, P.J., and LUPER SCHUSTER, J., concur.

                              ____________________
No. 16AP-441                                                                            5

                                     APPENDIX
                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

The State ex rel. Mary Mignella,            :

               Relator,                     :

v.                                          :                    No. 16AP-441

Industrial Commission of Ohio               :               (REGULAR CALENDAR)
and
Ohio Bureau of Workers' Compensation,       :

               Respondents.                 :


                          MAGISTRATE'S DECISION

                                Rendered on July 18, 2017


               Green Haines Sgambati Co., LPA, Shawn D. Scharf, and
               Charles W. Oldfield, for relator.

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


                                   IN PROCEDENDO

      {¶ 9} In this original action, relator, Mary Mignella, requests a writ of procedendo
ordering respondent Industrial Commission of Ohio ("commission") to vacate two orders
that (1) refer the applicant for permanent total disability ("PTD") compensation for
another medical examination and (2) suspend the application until relator appears for
another medical examination. Relator requests that the writ order the commission to
proceed to final judgment on the PTD application absent another medical report from a
physician of the commission's choice.
No. 16AP-441                                                                                 6

Findings of Fact:
       {¶ 10} 1. On March 9, 2011, relator sustained an industrial injury while employed
as a teacher for respondent Warren City School District.
       {¶ 11} 2. The industrial claim (No. 11-313410) is allowed for a number of physical
conditions.
       {¶ 12} 3. On December 10, 2014, at her request, relator was examined by
chiropractor Denise M. Carradine, D.C. Dr. Carradine examined for all the allowed
conditions of the industrial claim. In her 12-page narrative report, Dr. Carradine opined:
               Based on the patient history, physical examination including
               orthopedic and neurological testing, computerized range of
               motion testing, computerized muscle testing, the allowed
               conditions in this claim, and the 5th edition of the AMA
               Guidelines, it is my professional opinion that this patient has
               sustained a 69% permanent physical impairment of the body
               as a whole.

       {¶ 13} 4. On January 9, 2015, Dr. Carradine completed a form captioned "Physical
Strength Rating." On the form, Dr. Carradine indicated by her mark "[t]his Injured
Worker is incapable of work."
       {¶ 14} 5. On January 16, 2015, relator filed an application for PTD compensation.
In support, relator submitted the reports of Dr. Carradine.
       {¶ 15} 6. On June 3, 2015, at the commission's request, relator was examined by
Elizabeth Mease, M.D. In her six-page narrative report, Dr. Mease stated:
               PURPOSE OF EXAMINATION: To assist the Industrial
               Commission in consideration of the injured worker's request
               for permanent total disability, I have been asked to
               (1) formulate an opinion as to whether or not the injured
               worker has reached maximum medical improvement for
               each/all of the allowed condition(s) in the claim(s);
               (2) estimate the percentage of whole person impairment for
               each/all of the allowed condition(s) according to the AMA
               Guides, 5th Edition, and; (3) what type of work activities, if
               any, the injured worker is capable of, solely with regard to
               the allowed condition(s) in the claim(s). I have been asked
               [to] evaluate and will only consider those physical allowed
               conditions for which I am qualified by training and
               experience.

               ***
No. 16AP-441                                                                        7


               OCCUPATIONAL HISTORY:
               Ms. Mary Mignella is a 59 year old former employee of
               Warren City Schools and Youngstown State University. She
               was employed at Warren City Schools for 35 years. She
               taught special education, regular education and gifted. She
               last worked 2 years ago.

               HISTORY OF THE PRESENT CONDITION:
               On the day of the injury of 3-09-2011, she fell at work/1st
               floor. She reports that she landed on her leg, back and
               shoulder. She broke her teeth. She drove home. Her husband
               took her [to] St. Elizabeth Hospital emergency department.
               It was noted that she injured her front teeth, arm, knees,
               back, and nose. The impression was intra-oral laceration.

               She sought care with Dr. Marakas. She underwent dental
               procedures for teeth repair.

               On 3-11-2011, Dr. Carradine, DC, evaluated her and provided
               the impression of lumbosacral sprain and strain, lumbar
               sprain and strain and sacroiliac sprain and strain, thoracic
               sprain and strain, cervical sprain and strain, and left
               shoulder sprain and strain. Dr. Carradine provided
               chiropractic treatments.

               ***

               CURRENT SYMPTOMS:
               She has chronic low back and pain in both shoulders. She
               has numbness in her feet. She has pain and numbness in her
               left arm. She lacks strength. She has difficulty sleeping; she
               sleeps for 2 hours at a time. She has difficulty standing.

               IMPACT ON ACTIVITIES:
               It is difficult for her to stand and sit. She is able to clean and
               cook but only in short segments. Her activities are shortened.
               H[er] husband carries the laundry. She does grocery
               shopping in short segments. She avoids heavy carrying.

               ***

               DISCUSSION
               Ms. Mary Mignella is a 59 year old woman who was injured
               on 3-09-2011 when she fell on the 1st floor at work. The
               claim is allowed for sprain lumbosacral, sprain lumbar
               region, sprain sacroiliac, sprain thoracic region, neck sprain,
No. 16AP-441                                                                           8

               left shoulder sprain, open wound lip, necrosis of pulp teeth 8
               and 9, lumbar intervertebral disc displacement L4-5 and L5-
               S, bulging disc without myelopathy C5-6, cervical
               intervertebral disc displacement C6-7 and C7-T1. She had
               dental repairs. She has been treated with medications and
               extensive chiropractic therapy. Current findings reveal
               limitation in active cervical, shoulder and lumbar range of
               motion. Passive range of motion of shoulders is within
               normal limits. Upper and lower extremity reflexes are intact.
               Upper extremity and lower extremity motor function is 5/5
               and symmetric.

               OPINION: The following opinion is based on today's
               history and physical examination, review of the records
               provided, and only the allowed conditions in this claim.

               ***

               For each of the allowed physical conditions of the claim, she
               has reached maximum medical improvement. Further
               formal treatment (e.g. surgery, injections, therapy) will not
               provide any significant functional or physiological
               improvement.

               ***

               It is my opinion that the combined whole person impairment
               for the allowed condition(s) in this/these claim(s) is: 15%.

               ***

               She is able to perform light physical demand activities. She
               cannot sit or stand longer than 15 to 20 minutes at a time.

       {¶ 16} 7. On June 17, 2015, Dr. Mease completed a form captioned "Physical
Strength Rating." On the form, Dr. Mease indicated by her mark "[t]his injured worker is
capable of work as indicated below." By her mark, Dr. Mease indicated that relator is
capable of "light work."
       {¶ 17} The form asks the examining physician for "[f]urther limitations, if
indicated." In the space provided, Dr. Mease stated: "She cannot sit or stand longer than
15 minutes at a time."
       {¶ 18} 8. On July 6, 2015, relator moved for leave to depose Dr. Mease.
No. 16AP-441                                                                       9

      {¶ 19} 9. Following an August 18, 2015 hearing, a staff hearing officer ("SHO")
issued an order granting leave to depose Dr. Mease. The SHO's order explained:
               In order to provide fair adjudication of the pending issues,
               the Staff Hearing Officer finds that it is necessary to grant
               the request, because the "further limitations" listed by
               Dr. Mease under the light work category stated that [the
               Injured Worker] cannot sit or stand longer than 15 minutes
               at a time," and this would be in contradiction to the
               definition of light work as set [forth] on the 06/17/2015
               physical strength rating report.

               The claim file is referred to the Akron Hearing Administrator
               to oversee the scheduling of the deposition, pursuant to Ohio
               Admin. Code 4123-3-09(A)(6).

      {¶ 20} 10. On October 28, 2015, relator deposed Dr. Mease. The deposition was
recorded and transcribed for the record.
      {¶ 21} 11. On February 25, 2016, pursuant to notice, an SHO heard the PTD
application. On March 3, 2016, the SHO mailed an "interlocutory order" referring the
PTD application for the scheduling of a new examination.           The SHO's order of
February 25, 2016 explains:
               It is the finding of the Staff Hearing Officer that said IC-2
               application filed 01/16/2015 is hereby referred back to the
               Industrial Commission for further processing of the
               application by scheduling the Injured Worker for a new
               examination on the issue of permanent total disability in the
               ordinary manner as the Staff Hearing Officer finds pursuant
               to the deposition which was conducted on 10/28/2015 with
               Elizabeth Mease, M.D. who performed the permanent total
               disability examination on behalf of the Industrial
               Commission admitted during said deposition to making
               various mistakes in conducting her exam which did not
               correlate or correspond with guidelines outlined in the
               American Medical Association in order to make an accurate
               determination regarding whether the Injured Worker was
               permanently and totally disabled or not.

               Once said examination has been performed, the file is hereby
               reset on the next available Staff Hearing Officer Permanent
               Total Disability docket and processed in the ordinary
               manner.

               ***
No. 16AP-441                                                                             10


               This order is interlocutory in nature and not subject to
               appeal pursuant to the Ohio Adm.Code 4121-3-09.

       {¶ 22} 12. On March 14, 2016, relator requested a pre-hearing conference, citing
Ohio Adm.Code 4121-3-34(C)(7).
       {¶ 23} 13. On March 18, 2016, the commission scheduled relator for a medical
examination to be performed by Karen Gade-Pulido on April 5, 2016.
       {¶ 24} 14. Relator failed to attend or submit to the scheduled medical
examination.
       {¶ 25} 15. On April 12, 2016, an SHO mailed an "Ex Parte Order" that suspends
the PTD application. The order explains:
               Pursuant to R.C. 4123.53, it is ordered that the IC-2
               Application for Compensation for Permanent Total Disability
               filed 01/16/2015 be suspended until such time as the Injured
               Worker appears for a medical examination by a physician of
               the Industrial Commission's choice. It is noted that the
               Injured Worker has previously been scheduled for a medical
               examination and failed to appear. It is the responsibility of
               the Injured Worker to notify the Industrial Commission
               when they [sic] are willing and available to attend a
               scheduled exam.

       {¶ 26} 16. On June 14, 2016, relator, Mary Mignella, filed this action for a writ of
procedendo.
Conclusions of Law:
       {¶ 27} Because an original action is, at best, premature for relator to challenge the
administrative proceedings of the commission, it is the magistrate's decision that this
court deny relator's request for a writ of procedendo.
       {¶ 28} In this action, relator challenges the February 25, 2016 "interlocutory order"
of the SHO that refers the PTD applicant for a new examination because of questions
raised during the deposition of Dr. Mease regarding the evidentiary value of her reports.
The SHO's February 25, 2016 order suggests, but does not find, that the reports of Dr.
Mease cannot provide some evidence on which the commission can rely in adjudicating
the PTD application because American Medical Association guidelines were allegedly not
followed.
No. 16AP-441                                                                            11

      {¶ 29} Citing regulations promulgated by the commission in the Ohio
Administrative Code, relator asserts that the commission has no authority to order relator
to submit to another medical examination, even if the report generated for the initial
medical examination is found to be deficient.
      {¶ 30} For example, citing Ohio Adm.Code 4121-3-34(A), relator argues:

               This regulation establishes specific procedures for processing
               application[s] for permanent and total disability benefits.
               Notably absent from the regulation is any provision that
               allows a staff hearing officer to require the injured worker to
               submit herself to an additional medical examination simply
               because the Industrial Commission specialist's report is not
               credible.

      {¶ 31} R.C. 4123.53(A) currently provides:

               [T]he industrial commission may require any employee
               claiming the right to receive compensation to submit to a
               medical examination, * * * at any time, and from time to
               time, at a place reasonably convenient for the employee, and
               as provided by the rules of the commission or the
               administrator of workers’ compensation.

      {¶ 32} R.C. 4123.53(C) currently provides:

               If an employee refuses to submit to any medical examination
               * * * scheduled pursuant to this section or obstructs the same
               * * * the employee’s right to have his or her claim for
               compensation considered, if the claim is pending before the
               bureau or commission, or to receive any payment for
               compensation theretofore granted, is suspended during the
               period of the refusal or obstruction. Notwithstanding this
               section, an employee’s failure to submit to a medical
               examination * * * shall not result in the dismissal of the
               employee’s claim.

      {¶ 33} Supplementing the statute, Ohio Adm.Code 4121-3-12 provides:

               When the bureau or the commission orders an injured or
               disabled employee to submit to medical examination and
               such employee refuses to be examined or in any way
               obstructs the examination, the employee's claim for
               compensation shall be suspended during the period of his
               refusal or obstruction.
No. 16AP-441                                                                              12


       {¶ 34} Interpreting former R.C. 4123.53 (now R.C. 4123.53[A]), the Supreme Court
of Ohio states in State ex rel. Clark v. Indus. Comm., 78 Ohio St.3d 509 (1997):
                 The commission's discretion under former R.C. 4123.53,
                 however, is not unlimited. While former R.C. 4123.53
                 imposes no specific limit on the number of medical
                 examinations that the commission may schedule, on any
                 given issue, neither does it permit the commission to act in
                 an unreasonable, arbitrary or unconscionable fashion in its
                 determination to schedule them.
                 ***

                 Accordingly, we hold that the commission abuses its
                 discretion under former R.C. 4123.53 where the record fails
                 to disclose that additional medical examinations are
                 necessary or of assistance in determining PTD.

Id. at 512-13.

       {¶ 35} Here, it can be observed that the SHO's order of February 25, 2016 that
refers the PTD applicant for a new examination endeavors to explain why a new medical
examination is sought by the commission. The SHO has articulated, at least facially, that
an additional medical examination is necessary or of assistance in determining PTD.
Thus, the SHO's order of February 25, 2016 appears to meet the Clark standard under
R.C. 4123.53(A). It should be noted the Clark case involved court review of a final
commission order, unlike the instant case.
       {¶ 36} It is important to note that the SHO's order of February 25, 2016 and the
SHO's "ex parte order" (mailed April 12, 2016) that suspends the PTD application are both
interlocutory commission orders. That is, the commission has not yet issued a final
administrative order that adjudicates the PTD application.
       {¶ 37} Procedendo is a high prerogative writ of an extraordinary nature. State ex
rel. Ratliff v. Marshall, 30 Ohio St.2d 101 (1972). A writ of procedendo is an order from a
court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment in a
case before it. Id. The writ will not lie, however, to control or interfere with the inferior
court's normal procedures or its determination as to what the judgment should be. State
ex rel. Utley v. Abruzzo, 17 Ohio St.3d 203, 204 (1985).
No. 16AP-441                                                                                13

       {¶ 38} In order to be entitled to a writ of procedendo, the relator must establish a
clear legal right to require the respondent to proceed, a clear legal duty on the part of
respondent to proceed, and the lack of an adequate remedy in the ordinary course of law.
State ex rel. Weiss v. Hoover, 84 Ohio St.3d 530, 531-32 (1999).
       {¶ 39} Here, relator has an adequate administrative remedy. She can submit to the
additional medical examination and then argue the merits of her PTD application based
on the evidence before the commission. If relator should prevail before the commission,
she will have obtained the relief that she seeks to obtain through this procedendo action.
See State ex rel. Daniels v. CHS Greystone, Inc., 10th Dist. No. 11AP-394, 2012-Ohio-
2268 (Similar facts in a mandamus action.).
       {¶ 40} Based on the above analysis, the magistrate concludes that this original
action is, at best, premature because of the absence of a final administrative order. See
State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88 (1998) (The ripeness
doctrine is applied to a mandamus action brought by an employer challenging an award of
temporary total disability.).
       {¶ 41} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of procedendo.


                                               /S/ MAGISTRATE
                                               KENNETH W. MACKE




                                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).
