[Cite as State ex rel. Wayne Dalton Corp. v. Indus. Comm., 2017-Ohio-7736.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State ex rel. Wayne Dalton Corporation,             :

                Relator,                            :

v.                                                  :              No. 16AP-423

Industrial Commission of Ohio                       :       (REGULAR CALENDAR)
and Candie Simon,
                                                    :
                Respondents.
                                                    :




                                           D E C I S I O N

                                  Rendered on September 21, 2017


                On brief: Krugliak, Wilkins, Griffiths & Dougherty Co.,
                L.P.A., Edward D. Murray, and Aletha M. Carver, for
                relator.

                On brief: Michael DeWine, Attorney General, and
                Amanda B. Brown, for respondent Industrial Commission of
                Ohio.

                On brief: Brian, Zwick, Marchisio, Stone & Associates, and
                Richard F. Brian, for respondent Candie Simon.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
DORRIAN, J.
        {¶ 1} Relator, Wayne Dalton Corporation, filed an original action which asks this
court to issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate the order of its staff hearing officer ("SHO"), which granted to
respondent Candie Simon ("claimant") an award of permanent total disability ("PTD")
compensation beginning April 6, 2015, and ordering the commission to find that she is
not entitled to that compensation.
No. 16AP-423                                                                                    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.
       {¶ 3} The magistrate recommended this court deny relator's request for a writ of
mandamus. Specifically, the magistrate found: (1) the August 11, 2014 and April 6, 2015
reports of Dr. Mark Cecil provide some evidence on which the commission relied to
support the finding that the allowed conditions alone preclude all sustained remunerative
employment, and (2) the report of Dr. Nicholas Varrati provides some evidence on which
the commission relied to support the finding that the allowed conditions alone preclude
all sustained remunerative employment.
       {¶ 4} Relator has filed the following three objections to the magistrate's decision:
              [I.] The Magistrate erred in finding that Dr. Cecil's August 11,
              2014, opinion was not equivocal and contradictory and
              concluding that Dr. Cecil's opinions constituted some
              evidence to be relied upon to support a finding of PTD
              benefits.

              [II.] The Magistrate erred in finding Respondent Simon
              incapable of engaging in sustained remunerative
              employment based on the medical evidence and
              circumstances in the case.

              [III.] The Magistrate erred in finding that Dr. [Varrati's]
              report could be relied upon to support a finding of PTD.

       {¶ 5} The arguments presented in relator's three objections are not new and are
essentially a reiteration of the same arguments previously made to and addressed by the
magistrate.   After a careful and independent review, for the reasons stated in the
magistrate's decision, we do not find merit to relator's first, second, and third objections.
       {¶ 6} In its first two objections, relator challenges the August 11, 2014 medical
report of Dr. Cecil and argues the magistrate erred in concluding that the report was not
equivocal and was not contradicted by the August 8, 2014 report of Dr. Cecil. Ultimately,
relator argues that the magistrate erroneously found that these reports constituted some
evidence upon which the commission could rely to support its finding of PTD.
       {¶ 7} The Supreme Court of Ohio has observed that "[e]quivocation disqualifies
an opinion from consideration and occurs 'when a doctor repudiates an earlier opinion,
No. 16AP-423                                                                             3


renders contradictory or uncertain opinions, or fails to clarify an ambiguous statement.' "
State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-Ohio-6036, ¶ 15, quoting
State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649, 657 (1994). A medical report
can be so internally inconsistent that it cannot be some evidence on which the
commission can rely. State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445 (1994); State
ex rel. Taylor v. Indus. Comm., 71 Ohio St.3d 582 (1995). However, a court will not
second-guess a doctor's medical expertise to support a claim of internal inconsistency.
State ex rel. Young v. Indus. Comm., 79 Ohio St.3d 484 (1997).
      {¶ 8} In addition, as noted by the magistrate, this court recently observed in State
ex rel. Sheller-Chiles v. Indus. Comm., 10th Dist. No. 13AP-245, 2014-Ohio-313, and State
ex rel. Bonnlander v. Hamon, 10th Dist. No. 14AP-855, 2015-Ohio-4038, that this court's
prior precedent has established that a work capacity of four or more hours per day
constituted sustained remunerative employment.
      {¶ 9} The magistrate found, based on this court's prior precedent, that Dr. Cecil's
statement in the August 8, 2014 C-140 that claimant can work two hours per day and five
days per week was not a statement that claimant is capable of sustained remunerative
employment. He further found that the C-140 report is consistent with Dr. Cecil's opinion
in his August 11, 2014 report that claimant is "permanently and totally disabled from
sustained remunerative activity." (Appended Mag. Dec. at ¶ 26.) We agree. Dr. Cecil's
August 11, 2014 report is not equivocal or ambiguous and does constitute some evidence
on which the SHO could rely to find claimant permanently and totally disabled.
      {¶ 10} Furthermore, in the June 17, 2015 order, the SHO relied "on the reports of
Dr. Varrati and Cecil." (Appended Mag. Dec. at ¶ 42.) The SHO extensively discussed Dr.
Cecil's treatment record of April 6, 2015 noting Dr. Cecil's finding therein that claimant
"continues to experience intractable thoracolumbar pain which is difficult to control" and
Dr. Cecil's continuing conclusion that claimant is permanently and totally disabled.
(Appended Mag. Dec. at ¶ 42.) The SHO also ordered that PTD compensation commence
effective April 6, 2015. Presumably, the SHO's reliance on the "reports" of Dr. Cecil
included his April 6, 2015 treatment record. The magistrate found Dr. Cecil's April 6,
2015 report provided some evidence on which the commission relied to support the
finding that the allowed conditions alone preclude all sustained remunerative
No. 16AP-423                                                                                4


employment. Yet, relator did not object to the magistrate's finding regarding the April 6,
2015 report. Relator only challenges the August 11, 2014 report. Nevertheless, we agree
with the magistrate that this is also some evidence on which the SHO could rely.
       {¶ 11} Thus, we overrule the first and second objections.
       {¶ 12} In its third objection, relator argues that Dr. Varrati's report did not include
a complete or an accurate medical history. Relator asserts Dr. Varrati's report of his
February 5, 2015 exam was deficient because he relied on the history provided to him by
claimant, her subjective complaints, and her reports of self-function. Relator complains
that claimant did not inform Dr. Varrati that: (1) she had been released to return to work
by her physician of record, (2) she had been offered a job by relator, and (3) she had been
actively engaged in a vocational rehabilitation program and job search. Relator further
argues that the information which claimant did provide to Dr. Varrati was false and
misleading as demonstrated by the surveillance and testimonial evidence provided at the
hearing.
       {¶ 13} The magistrate found that relator failed to pursue its remedy pursuant to
Ohio Adm.Code 4121-3-09(A)(8) of seeking leave from the commission to take Dr.
Varrati's deposition or submit interrogatories to Dr. Varrati regarding his examination of
claimant on February 5, 2015, and regarding the surveillance evidence and other evidence
of record at the time of his examination of claimant. Relator argues that a deposition was
not necessary to demonstrate that claimant had provided incomplete, inaccurate, and
misleading information to Dr. Varrati.
       {¶ 14} We agree with the magistrate that relator could have requested permission
from the commission to have Dr. Varrati sit for deposition or answer interrogatories.
Nevertheless, we also note that relator mischaracterizes Dr. Varrati's report. Dr. Varrati
considered not only claimant's subjective complaints and reports of self-function in
concluding that she was unable to sustain remunerative employment. Rather, Dr. Varrati
considered "the allowed conditions, the records [provided to him by the commission], the
Injured Worker's subjective complaints and reports of self-function, and today's findings
of localized tenderness over the T4-12 and L1-5 paravertebral musculature, and decreased
range of motion." (Appended Mag. Dec. at ¶ 33.) The records provided to this court by
the commission include the November 21, 2014 report from VocWorks which notes
No. 16AP-423                                                                                 5


claimant's participation in vocational rehabilitation and job search as well as the fact that
relator had offered her employment.        Presumably, Dr. Varrati was aware of these
developments as he indicated he had reviewed all the commission's records which were
provided to him.
       {¶ 15} Furthermore, as to relator's claim that the surveillance video evidence
demonstrates that claimant's self-report was false, we note that the SHO extensively
discussed relator's video surveillance evidence and concluded that "the activities on the
video tape are not so inconsistent as to impeach the medical evidence and restrictions
outlined by Dr. Varrati and Dr. Cecil." (Appended Mag. Dec. at ¶ 42.) The SHO obviously
carefully considered and weighed this counter evidence to Drs. Varrati's and Cecil's
reports.
       {¶ 16} This court will not determine that the commission abused its discretion
when there is some evidence in the record to support the commission's finding. State ex
rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio St.3d 197, 198 (1986). The some
evidence standard "reflects the established principle that the commission is in the best
position to determine the weight and credibility of the evidence and disputed facts." State
ex rel. Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing
State ex rel. Pavis v. Gen. Motors Corp., B.O.C. Group, 65 Ohio St.3d 30, 33 (1992). We
have determined that Drs. Cecil's and Varrati's reports constitute some evidence to
support the commission's finding of PTD. As such, we will not, as relator suggests,
reweigh the evidence of the surveillance video against Drs. Cecil's and Varrati's reports.
       {¶ 17} Thus, we overrule the third objection.
       {¶ 18} Following a 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 determined the facts and applied the appropriate law. Therefore, we overrule
relator's three objections to the magistrate's decision and adopt the magistrate's decision
as our own, including the findings of fact and conclusions of law therein. The requested
writ of mandamus is denied.
                                                                      Objections overruled;
                                                                 writ of mandamus denied.
                             KLATT and SADLER, JJ., concur.
No. 16AP-423                                                                             6


                                     APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel.                            :
Wayne Dalton Corporation,
                                             :
             Relator,
                                             :
v.                                                                No. 16AP-423
                                             :
Industrial Commission of Ohio                                (REGULAR CALENDAR)
and                                          :
Candie Simon,
                                             :
             Respondents.
                                             :


                         MAGISTRATE'S DECISION

                                Rendered on April 5, 2017


             Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., and
             Edward D. Murray, for relator.

             Michael DeWine, Attorney General, and Amanda B. Brown,
             for respondent Industrial Commission of Ohio.

             Brian, Zwick, Marchisio & Associates, and Richard F. Brian,
             for respondent Candie Simon.


                                    IN MANDAMUS

      {¶ 19} In this original action, relator, Wayne Dalton Corporation ("Dalton"),
requests a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate the June 17, 2015 order of its staff hearing officer ("SHO") that
awarded to respondent, Candie Simon, permanent total disability ("PTD") compensation
beginning April 6, 2015, and to enter an order denying the compensation.
No. 16AP-423                                                                           7


Findings of Fact:
       {¶ 20} 1. On April 12, 2011, Candie Simon ("claimant") injured her back while
employed as a "receiving laborer" for relator, a self-insured employer under Ohio's
workers' compensation law. The injury occurred while claimant was using a forklift.
       {¶ 21} 2. The industrial claim (No. 11-817412) is allowed for "Ruptured Disc T12-
L1; Post Thoracotomy Syndrome."
       {¶ 22} 3. On May 16, 2012, claimant underwent back surgery performed by Mark
Cecil, M.D. Dr. Cecil performed an "anterior corpectomy T12 vertebral body through left
thoracotomy with partial resection of left tenth rib. There was allograft fusion with rib
allograft T11 to L1 with placement of cage strut and anterolateral plates and screws and
placement of a 28 French chest tube," as described in a September 6, 2013 report from
Richard J. Reichert, M.D., who examined claimant on behalf of relator.
       {¶ 23} 4. On November 4, 2013, claimant was examined by Dr. Cecil for post-
surgical follow-up. In his office note of that date, Dr. Cecil wrote:
              RECOMMENDATIONS: The patient has had some difficulty
              in returning to work even on a sedentary basis. I had a long
              discussion with the patient about the natural history of her
              pathology particularly in regards to the setting of [the]
              Workers' Compensation claim. I would concur with Dr.
              Reichert that a sedentary occupation would be appropriate. I
              have encouraged the patient to attempt to return to a
              sedentary occupation full time though I have explained to
              her that I cannot guarantee that she will be able to remain in
              that setting, but I think an attempt ought to be made.
              Therefore, I have recommended returning her to work
              gradually to full time duty over the next 4-to-6 weeks
              beginning a 5 day work week at 4 hours a day x2 weeks, 6
              hours a day x2 weeks and then return to full duty. I
              explained to the patient that pain management may also be
              efficacious in terms of providing her with some solutions to
              cope with what is likely to be some permanent pain.

              Unfortunately, if pain proves to be intractable then certainly
              one must consider the possibility of filing for disability
              compensation and I believe a compelling case could be made
              for that; however, it would be my hope that the patient could
              remain in the work force as I think ultimately for many
              reasons this would be better than disability compensation.
No. 16AP-423                                                                    8


       {¶ 24} 5. On February 3, 2014, claimant was again examined by Dr. Cecil for
follow-up. In his office note of that date, Dr. Cecil wrote:
              She had an independent medical evaluation by Dr. Richard
              Reichert on 9/6/2013 and Dr. Reichert felt that the patient
              might be able to return to work in a sedentary capacity on a
              permanent basis. I felt that this was reasonable although I
              had some trepidation as regards the patient's fitness to
              return to work. The patient has made an attempt to return to
              work and is working three days a week, four hours daily. Her
              ability to work is limited by some unrelenting left-sided
              thoracic pain unassociated with neuropathic pain or
              radicular pain. Pain is worse with prolonged sitting and
              standing. It is relieved by supine posturing. She does utilize
              multiple medications to ameliorate the pain including the
              analgesic tramadol, the nonsteroidal anti-inflammatory
              Motrin and Cymbalta. Cymbalta is being used to address the
              neuropathic component of what is felt to be "post
              thoracotomy syndrome" or intractable intercoastal neuralgia.
              She has utilized Lidoderm patches in the past which were
              efficacious but she has run out of these. She comes in today
              ostensibly because she believes that she is unable to continue
              to work and that even on limited hours and days her pain is
              such that she cannot continue in her present work
              environment.

              ***

              IMPRESSION:
              The patient is status post complex reconstruction of the
              thoracolumbar junction status post traumatic injury to the
              T12 vertebral body with persistent intractable pain. A
              substantial component of this is likely post thoracotomy
              pain.

              RECOMMENDATIONS:
              As I had opined in a previous note, I believe that a
              "compelling" case could be made for the patient for total
              permanent disability and my opinion at the time of this
              dictation is unchanged. The patient does not wish to
              continue in the work environment at this time because of
              intractable pain and I have encouraged her therefore to seek
              permanent and total disability.

              Going forward, I would recommend medication
              management of intractable pain with attempt to avoid
              chronic utilization of opioid analgesics in order to avoid the
No. 16AP-423                                                                              9


              complications of tolerance and dependence upon opioid
              analgesia. I would recommend continued utilization of
              Cymbalta to address the neuropathic component of her left
              "post thoracotomy syndrome" pain.

       {¶ 25} 6. On August 8, 2014, Dr. Cecil completed a C-140 form captioned
"Application for Wage Loss Compensation."         On the form, Dr. Cecil indicated that
claimant was capable of working five days per week for two hours a day.
       {¶ 26} 7. On August 11, 2014, Dr. Cecil authored a letter sent to claimant's counsel.
Dr. Cecil wrote:
              As I have previously opined, I believe to a reasonable degree
              of medical certainty based upon my training as a fellowship-
              trained spinal surgeon and upon my intimate involvement
              with this case that Candie L. Simon is permanently and
              totally disabled from sustained remunerative activity. The
              patient has had extensive and appropriate nonoperative as
              well as operative intervention to address a T12 "burst"
              fracture. She has at this time reached maximum medical
              improvement and no additional intervention is likely to alter
              this patient's clinical outcome. Nevertheless, the patient
              continues to have intractable thoracolumbar pain which
              unfortunately hampers her ability to be employed because of
              its difficulty to control satisfactorily. Multiple attempts to
              reengage the patient in the work force have been,
              unfortunately, unsuccessful and it is unlikely that additional
              attempts will change that outcome.

       {¶ 27} 8. On September 2, 2014, claimant filed an application for PTD
compensation. In support, claimant submitted the August 11, 2014 report (or letter) from
Dr. Cecil.
       {¶ 28} 9. On November 21, 2014, claimant signed a written agreement to
participate in vocational rehabilitation and a job search through VocWorks.             The
agreement and claimant's participation generated the following report:
              During [Job Seeking Skills Training ("JSST")], this
              [Vocational Specialist ("VS")] has met the claimant several
              times and we went over practice interviews several times,
              developed a current resume, showed her where to find jobs,
              went over a practice application, cover letter, discussed
              importance of thank you letters, and discussed appropriate
              dress. She remains very motivated to proceed, is interested
              in [Living Maintenance] benefits and signed all paperwork.
No. 16AP-423                                                                          10



             Ms. Simon was referred for three weeks of [JSST] starting
             the week of November 20, 2014. Participation was required
             two times a week.

             The VS met with Ms. Simon again on 11/21/14 and 11/20/14.
             The VS provided Ms. Simon with a JSST manual and
             completed a questionnaire/intake. The VS also provided and
             went over various Intake forms, Advocacy phone numbers,
             and provided a VocWorks handbook.

             Ms. Simon said she is looking for part-time work. She said
             she believes she is not released to work, however will work if
             advised by her Attorney. She said he is open to job goals,
             such as receptionist, accounts payable, customer service,
             sales and data entry positions. She said she is concerned with
             her lack of stamina and strength. She said she does have a
             valid driver's license and reliable transportation. She does
             not have a criminal record.

             The VS met with Ms. Simon on 11/20/14 and 11/21/14. Ms.
             Simon completed the generic application and references
             were gone over. Transferable skills were also gone over. Ms.
             Simon and this VS developed a current resume. She was a
             active participant in the development. Job goals and
             employment history were gone over. Also reasons for leaving
             jobs, etc.

             The VS met with Ms. Simon again on 11/24/14 and 11/25/14.
             The VS and Ms. Simon went over where to look for jobs and
             on-line job searches. Researching companies and
             dress/grooming were also gone over. The VS and Ms. Simon
             went over cover letters, thank you letters, and started going
             over interviewing. Interviewing skills and steps in the
             interview process were gone over.

             On 12/12/14, this VS informed the claimant that a letter offer
             of employment was sent to her from the [Employer of
             Record]. She said she received it and was awaiting
             instruction from her Attorney. She said she never has seen
             her restrictions.

      {¶ 29} 10. By letter dated November 21, 2014, Dalton plant manager Don Diglaw
offered claimant a part-time position as a "Front Desk Administrator" at Dalton. The two-
page letter concluded:
No. 16AP-423                                                                        11


              The Front Desk Administrator position will pay $15.31 per
              hour. Consistent with your physician's restrictions, your
              scheduled work hours will require you to work Monday
              through Friday from 11 AM to 1 PM. It is our hope that your
              first day of work can be on 12-8-14. As such, please call me
              upon receipt of this letter so that we can coordinate your
              return to work.

       {¶ 30} 11. On March 17, 2015, claimant began the "Front Desk Administrator" job
at Dalton. She worked two hours per day, five days per week until April 1, 2015.
       {¶ 31} 12. On April 6, 2015, claimant was again examined by Dr. Cecil. In his
office note of that date, Dr. Cecil wrote:
              The patient has been considered disabled for sustained
              remunerative activity by me. In fact, it is my impression that
              she is receiving disability benefits from Social Security.
              Nevertheless, it is my understanding that the patient has
              been returned by her employer to a sedentary job. Her
              biggest complaint with prolonged sitting is left hernithoracic
              pain. Worse than the prolonged sitting at work is the sitting
              in the car to drive to work. At times, this left hernithoracic
              pain has become intolerable for her. Both Cymbalta and
              tramadol are utilized which are efficacious though
              incompletely so.

              ***

              IMPRESSION:
              The patient is doing acceptably well at the present time.
              Unfortunately, persistent left hernithoracic pain and midline
              pain at the thoracolumbar junction impede her ability to sit
              for a sustained period of time, either at work or in a motor
              vehicle traveling to work.

              RECOMMENDATIONS:
              As I have previously opined, given the fact that the patient
              has reached maximum medical improvement, and despite
              this improvement has intractable pain even with sedentary
              activities, I am left to conclude to a reasonable degree of
              medical certainty that the patient is disabled for sustained
              remunerative activity and would be better served
              (unfortunately) by not working.
No. 16AP-423                                                                               12


       {¶ 32} 13. Earlier, on November 12, 2014, at relator's request, claimant was
examined by Dennis A. Glazer, M.D.           In his four-page narrative report, dated
November 24, 2014, Dr. Glazer opined:
              Ms. Simon has reached maximum medical improvement. At
              this point, she would only require maintenance treatment
              and continuation of her medication.

              ***

              Ms. Simon is unable to return to her former position of
              employment as a receiving clerk. She could not do lifting
              beyond 10 lbs. She would have to do limited walking and
              carrying. She also could not drive a tow-motor.

              ***

              Ms. Simon would have a 10 lb. weight limit for carrying. She
              could only walk intermittently for a total of one hour out of
              the day. She could do no stooping, lifting, or climbing.

              ***

              Ms. Simon is not permanently and totally impaired from all
              sustained remunerative employment. She is employable at a
              sedentary level.

              ***

              Ms. Simon's condition is permanent. She is unlikely to have
              any significant degree of improvement over her condition as
              it is present at this time. She has reached maximum medical
              improvement.

       {¶ 33} 14. On February 5, 2015, at the commission's request, claimant was
examined by Nicholas Varrati, M.D. In his six-page narrative report, Dr. Varrati states:
              History of Present Illness

              ***

              She states she was then referred to Dr. Cecil. She states she
              underwent a myelogram and other diagnostics. She states
              she had returned to work intermittently during this time. She
              states she underwent surgery on 5/16/2012 which consisted
              of anterior corpectomy at T12. She states she did not note
No. 16AP-423                                                                 13


           significant improvement after the surgery. She states she
           returned to work in 2013, to a receptionist job. She states she
           last worked in February of 2014. She states her current
           treatment consists of home exercise and medication. She
           states no further treatment has been recommended.

           Current Symptoms: Her pain level is rated as 6/10 with
           exacerbation to 10/10. Her pain is constant and is located in
           the low back and left side. The pain is described as burning,
           throbbing, stabbing, aching, shooting, sore and dull. Her
           pain is improved with heat and medications. Her pain is
           worsened with any type of activity. She notes occasional pain
           to the left leg down to the calf.

           Function: She is able to stand for 5 minutes, sit for 10-15
           minutes and drive for 45-60 minutes. She is able to walk for
           1/2 block and uses a cane on rough ground. She is able to lift
           approximately 8 pounds. She is able to bend over at the
           waist. She is unable to squat. She is able to navigate stairs
           with difficulty. She is able to perform self-care. She is no
           longer able to participate in fishing, boating, hiking,
           gardening or swimming.

           ***

           Review of Medical Records: I have reviewed all of the records
           provided to me by the Industrial Commission.

           Physical Examination:
           Examination of the thoracic spine revealed a well healed
           16cm thoracotomy scar on the left. There was
           hypersensitivity approximately 3-4cm surrounding the scar.
           There was also a 3cm chest tube scare [sic] on the left. There
           was tenderness to palpation over the T4-T12 paravertebral
           musculature diffusely.

           ***

           In consideration of the allowed conditions, the records
           reviewed, the Injured Worker's subjective complaints and
           reports of self-function, and today's findings of localized
           tenderness over the T4-12 and L1-5 paravertebral
           musculature, and decreased range of motion, it is my
           opinion that she would be unable to sustain remunerative
           employment.
No. 16AP-423                                                                         14


       {¶ 34} Also, in his report, Dr. Varrati opined that the allowed conditions of the
claim produced a combined whole person impairment of 43 percent.
       {¶ 35} 15. Following the February 5, 2015 examination, Dr. Varrati also completed
a "Physical Strength Rating" form. By his mark, Dr. Varrati indicated: "This Injured
Worker is incapable of work."
       {¶ 36} 16. The record contains a report of surveillance from InfoQuest, a private
investigative firm. The report indicates that surveillance was conducted on claimant on
April 29, May 9, and May 25, 2013. The report summarizes as follows:
             On 4-29-13, the subject left the heading address driving her
             registered white Dodge truck, auto tag No. FJK-9220. She
             was followed to the Carrollton Veterinary, where she entered
             without any animals, and exited several minutes later with a
             small package, to Thorne's grocery store, where she entered
             for several minutes, and to Rite Aid, where she made a small
             purchase. She was then followed to her residence, where no
             further activity was observed. (See video).

             On 5-9-13, the subject left her residence driving her
             registered white Dodge truck, auto tag No. FJK-9220. She
             was followed to the Post Office in Carrollton, where she
             entered for several minutes, and then to the heading address,
             where no further activity was observed. (See video).

             On 5-25-13, the subject was not observed outside the heading
             address. Her registered white Dodge truck, auto tag No. FJK-
             9920 [sic], was present in the morning. Surveillance was
             conducted from a position to observe the marina due to the
             subject putting her boat in the water last week, which did not
             allow this investigator to maintain a visual on the subject's
             registered truck if it departed. A canvas of the heading
             address in the early afternoon found the subject's registered
             Dodge truck gone from the residence. A canvas of the
             downtown area of Carrollton and the surrounding area in the
             vicinity of the subject's cottage did not locate the subject's
             Dodge truck.

             See attached: 9 minutes and 5 seconds of video.

       {¶ 37} The InfoQuest report further indicates that surveillance was conducted on
August 2, August 6, August 28, and September 5, 2013. The report summarizes as
follows:
No. 16AP-423                                                                       15


             On 8-2-13, the subject was not observed outside the heading
             address. An unidentified male left the heading address for a
             half hour in the subject's registered white Dodge truck, auto
             tag No. FJK9220. No additional activity was observed.

             On 8-6-13, the subject left the heading address driving her
             registered Dodge truck, tag No. FJK9220. She was followed
             to Drug Mart, where she made a purchase, which she carried
             out of the store in her right hand, and to Thorne's Market,
             where she exited pushing a shopping cart containing several
             purchases. She loaded her purchases into the passenger side
             of her Dodge truck, returned the cart to the cart return, and
             drove away. She was followed to the heading address, where
             no further activity was observed. (See video).

             On 8-28-13, the subject was observed standing at the front
             door of the heading address as this investigator initiated
             surveillance. Later in the morning, the subject left the
             heading address driving her registered white Dodge, truck
             auto tag No. FJK9220. She was followed into town, where
             surveillance had to be discontinued to avoid detection.

             On 9-5-13, the subject left the heading address as a
             passenger in her registered white Dodge truck, auto tag No.
             FJK9220, accompanied by an unidentified male driver. She
             was followed to her IME at US Health Works, 2626 Fulton
             Road, Canton, Ohio, where she was dropped off and walked
             to the main entrance. The unidentified male returned to US
             Health Works an hour and forty-eight minutes later to pick
             her up. She was followed to a Dairy Queen in Malvern, Ohio,
             where the male driver used the drive-through service, and to
             Drug Mart in Carrollton, Ohio, where the male driver used
             the pharmacy drive-through window. The subject was then
             followed to Autumn Road, which leads to Doral Road and the
             heading address. To avoid detection, the subject's vehicle
             was not followed. No further activity was observed. (See
             video).

             See attached: 9 minutes and 17 seconds of video.

      {¶ 38} The InfoQuest report further indicates that surveillance was conducted on
July 4, August 18, September 16, November 20, and on November 21, 2014. The report
summarizes as follows:
             On 7-4-14, the subject was briefly observed standing on the
             front porch of the heading address with a dog. She was not
No. 16AP-423                                                                 16


           wearing any support devices and appeared well and able.
           While attempting to obtain video footage of subject, she
           appeared to take notice of this investigator's vehicle. To
           avoid arousing her suspicion and compromise the ongoing
           investigation, this investigator elected [to] not take video at
           this time and continue surveillance at the entrance/exit of
           the cabin community in hopes of observing the subject
           leaving in her registered white Dodge truck, auto tag No.
           FJK-9220, which was present. There was a great deal of
           activity in the area with many people outside celebrating the
           holiday. An unidentified male did come and go from the
           residence driving the subject's registered Dodge truck. A
           source met with this investigator at his residence, which is
           several cabins down from the subject's, but his location
           provided no direct visual of her residence. Based on
           additional information gleaned from the source, this
           investigator headed to Camp Muskingum in an effort to
           attempt to locate the subject, who may have been on a
           pontoon boat. Upon arrival at the camp, numerous pontoon
           boats were on the lake. This investigator confirmed the
           subject was not on any of the boats and then returned to the
           entrance/exit of the cabin community. No additional subject
           activity was observed.

           On 8-18-14, the subject arrived a half hour early for her 9:30
           a.m. IME appointment at 4450 Balden Street, Canton, OH,
           as a passenger in her registered white Dodge truck, auto tag
           No. FJK9220, accompanied by an unidentified male driver.
           The subject exited her vehicle in a normal manner and
           entered and exited the building without obvious difficulty.
           She then returned to her truck, which she entered in one
           continuous motion and was followed to Harbor Freight in
           Canton, OH, where she and the male driver entered for
           several minutes, and to Tractor Supply in Carrollton, OH,
           where she and the male entered for several minutes. The
           male driver exited Tractor Supply with a small purchase and
           the subject entered the passenger seat of her truck in one
           continuous motion. She was followed to Doral Road SW, the
           location of the heading address, where no further activity
           was observed. (See video).

           On 9-16-14, the subject was scheduled for a 9:00 a.m.
           hearing at the Senator Ocasek Building, 161 South Main
           Street, Akron, OH. There was no sign of the subject inside or
           outside of the building. The subject's name was called for her
           hearing at 9:15 a.m., but she was not observed. Two
           attorneys entered the room.
No. 16AP-423                                                                       17


             On 11-20-14, the subject arrived at the Carrollton Library for
             her 12:00 p.m. appointment driving her registered white
             Dodge truck, auto tag No. FJK 9220. She entered and exited
             the library and climbed in and out of her truck without
             obvious difficulty. She was then followed to Drug Mart,
             Tractor Supply and Thornes Market. She made purchases at
             each location that she pushed out of each store in a shopping
             cart. She loaded those items into her truck, which also
             included a large bag of dog or cat food. She was then
             followed to her residence. (See video).

             On 11-21-14, the subject left the heading address driving her
             registered Dodge truck, auto tag No FJK 9220. She was
             followed to the Carrollton Library for her scheduled 11:00
             a.m. meeting. Following her hour meeting, she returned to
             her registered vehicle and returned home. No additional
             subject activity was observed. (See video).

             See Video tab for 25 minutes and 42 seconds of video.

      {¶ 39} The InfoQuest report further indicates that surveillance was conducted on
April 11 and May 2, 2015. The report summarizes as follows:
             On 4-11-15, the subject was observed walking about the area
             around Leesville Lake for the dock installation. She was
             holding a clip board and appeared as if she may have been
             the organizer of the event. During the surveillance period,
             she was observed moving a bench around to face the lake,
             she bent over at the waist to pick up a child's plastic swing,
             which she handed to another person, helped a child off a
             picnic table, and sat for periods of time on the bench. She
             also appeared to ready a picnic table for lunch, continued
             walking about the area, and sat among the residents at the
             picnic tables. The activities in which the subject engaged
             such as bending over at the waist, walking about the area,
             picking up and moving items were done with no obvious
             signs of difficulty. (See video).

             On 5-2-15, the subject was observed walking her dog at the
             end of the road, near the edge of Leesville Lake. She sat
             down near the edge of the lake with the dog's lead/leash
             looped over her right arm. After several minutes, she stood
             up in one continuous motion and bent over at the waist to
             untangle the leash. While the subject held the leash in her
             left hand, the large dog walked over to the boardwalk, where
             the subject appeared to pull back on the leash to not allow
             the dog to continue on the boardwalk. The subject then
No. 16AP-423                                                                           18


              walked her dog up the road, toward the heading address. In
              the late afternoon, the subject was briefly observed walking
              around the neighborhood with an unidentified male, a small
              child and her dog. (See video).

              See Video tab for 1 hour, 36 minutes and 50 seconds of
              video.

      {¶ 40} 17. On June 17, 2015, the PTD application was heard by an SHO. The
hearing was recorded and transcribed for the record. The transcript is 104 pages in
length.
      {¶ 41} 18. Following the June 17, 2015 hearing, the SHO issued an order awarding
PTD compensation beginning April 6, 2015, which is the date of one of Dr. Cecil's office
notes. Relying on the reports of Dr. Varrati and Cecil, the SHO found that the medical
impairment from the allowed conditions alone preclude all sustained remunerative
employment.    Thus, it was not necessary for the SHO to consider the non-medical
disability factors. The SHO also addressed the surveillance evidence, relator's job offer,
and claimant's employment during the pendency of the PTD application.
      {¶ 42} The SHO's order of June 17, 2015 explains:
              The Injured Worker sustained a back injury on 04/12/2011
              while working as a receiving laborer for the named
              Employer. The Injured Worker was using a forklift to unload
              a pipe truck. The Injured Worker's load shifted, causing the
              Injured Worker's forklift to slam down. The Injured Worker
              was taken to the hospital and admitted for approximately
              five days. Surgery was authorized to treat the ruptured disc
              at T12-L1. The Injured Worker underwent a surgical
              procedure consisting of an anterior corpectomy T12 vertebral
              body through left thoracotomy with partial resection of left
              tenth rib. Additionally, the Injured Worker underwent an
              allograft fusion with rib allograft T11 to L1 with placement of
              cage strut and anterolateral plates and screws with
              placement of a French chest tube. Subsequently, the claim
              was allowed for post thoracotomy syndrome.

              The Injured Worker was examined by Nicholas Varrati,
              M.D., on 02/05/2015. Dr. Varrati found the Injured
              Worker's pain is constant and worsened with any type of
              activity. Upon examination, he found tenderness to
              palpation over the T4-T12 paravertebral musculature. Dr.
              Varrati noted decreased range of motion and opined the
No. 16AP-423                                                                19


           Injured Worker has reached maximum medical
           improvement. He assigned a 43 percent whole person
           impairment and completed physical strength rating report.
           Based on his findings of tenderness and decreased range of
           motion, Dr. Varrati concluded the Injured Worker is unable
           to engage in sustained remunerative employment.

           The Injured Worker was examined by Mark Cecil, M.D., on
           04/06/2015. Dr. Cecil submitted a report dated 08/11/2014
           and treatment record dated 04/06/2015. Dr. Cecil notes the
           Injured Worker had extensive operative and nonoperative
           medical intervention to address the T12 fracture. He found
           the Injured Worker continues to experience intractable
           thoracolumbar pain which is difficult to control. Dr. Cecil
           concludes the Injured Worker is permanently and totally
           disabled.

           The opinions of Dr. Varrati and Dr. Cecil are supported by
           their physical examination findings. Accordingly the Staff
           Hearing Officer concludes the Injured Worker is unable to
           engage in sustained remunerative employment.

           Based upon the reports of Dr. Varrati and Dr. Cecil, it is
           found that the Injured Worker is unable to perform any
           sustained remunerative employment solely as a result of the
           medical impairment caused by the allowed conditions.
           Therefore, pursuant to State ex rel. Speelman v. Indus.
           Comm. (1992), 73 Ohio App.3d 757, it is not necessary to
           discuss or analyze the Injured Worker's non-medical
           disability factors.

           Counsel for the Employer submitted surveillance video
           evidence. Counsel for the Employer contends that
           Permanent and Total Disability benefits are not appropriate
           given the surveillance video evidence. Counsel's contention is
           not found persuasive. The Injured Worker was surveilled on
           various dates from 4/29/2013 through 05/02/2015. The
           surveillance was conducted for multiple hours over a period
           of approximately two years. Per the Employer's Counsel, the
           evidence consists of two to three hours of the Injured
           Worker's activities. The Injured Worker was video taped
           performing a host of activities, including but not limited to:
           driving, running errands, grocery shopping, going to the
           pharmacy, going to the post office, walking her dog, and
           going to the veterinarian's office. The Staff Hearing Officer
           finds the activities on the video tape are not so inconsistent
No. 16AP-423                                                                 20


           as to impeach the medical evidence and restrictions outlined
           by Dr. Varrati and Dr. Cecil.

           The Injured Worker was video taped over an extensive
           period of time. Many of the entries in the surveillance
           summary reference no activity by the Injured Worker. The
           simple activities of daily living, running errands, driving,
           grocery shopping, and tending to a pet are not found to be
           inconsistent with the opinions of Dr. Varrati and Dr. Cecil.
           Dr. Varrati found the Injured Worker's pain is constant and
           worsens with any type of activity. Likewise, Dr. Cecil
           described the Injured Worker's pain as intractable
           thoracolumbar pain that is difficult to satisfactorily control.
           Thus, the activities on the video tape are not found sufficient
           to defeat the Application for Permanent and Total Disability
           benefits.

           Counsel for the Employer also contends that Permanent and
           Total Disability compensation is not substantiated as the
           named Employer has a job available for the Injured Worker.
           Counsel's contention is not found persuasive. Counsel for the
           Employer references a position as a front desk administrator
           for the named Employer. This position entails greeting
           guests and notifying the appropriate party upon arrival,
           answering the telephone, and transferring calls to the
           appropriate individual.

           By way of history, the Injured Worker testified she
           previously performed this light duty job on two occasions
           and was unable to perform the job due to pain stemming
           from the allowed conditions. The Injured Worker testified
           she last worked this job from approximately 03/17/2015 to
           04/01/2015. The Injured Worker testified that she worked
           two hours per day, five days per week. The Injured Worker's
           testimony is supported by the 08/11/2014 report and
           04/06/2015 treatment record of Dr. Cecil. Dr. Cecil opines
           the Injured Worker is unable to satisfactorily control her
           pain. He references the multiple unsuccessful attempts to re-
           engage the Injured Worker in the workforce. He concludes it
           is unlikely that any additional attempts will change that
           outcome. The opinion of Dr. Cecil is found persuasive.
           Accordingly, the Staff Hearing Officer concludes the Injured
           Worker is unable to engage in sustained remunerative
           employment, including the front desk administrator position
           available at the named Employer.
No. 16AP-423                                                                           21


              Accordingly, the Staff Hearing Officer concludes the Injured
              Worker has established she is entitled to Permanent and
              Total Disability compensation. Said compensation is
              awarded to commence effective 04/06/2015, based upon the
              04/06/2015 treatment record completed by Dr. Cecil. Dr.
              Cecil opines the Injured Worker is Permanently and Totally
              Disabled in this treatment record.

       {¶ 43} 19. On July 6, 2015, relator moved for reconsideration of the SHO's order of
June 17, 2015.
       {¶ 44} 20. On July 14, 2015, claimant filed a memorandum in opposition to
relator's request for reconsideration.
       {¶ 45} 21. On July 16, 2015, the three-member commission mailed an order
denying relator's request for reconsideration.
       {¶ 46} 22. On June 3, 2016, relator, Wayne Dalton Corporation, filed this
mandamus action.
Conclusions of Law:
       {¶ 47} Two issues are presented: (1) whether the August 11, 2014 and the April 6,
2015 reports of Dr. Cecil provide some evidence on which the commission relied to
support the finding that the allowed conditions alone preclude all sustained remunerative
employment, and (2) whether the report of Dr. Varrati provides some evidence on which
the commission relied to support the finding that the allowed conditions alone preclude
all sustained remunerative employment.
       {¶ 48} The magistrate finds: (1) the August 11, 2014 and the April 6, 2015 reports
of Dr. Cecil provide some evidence on which the commission relied to support the finding
that the allowed conditions alone preclude all sustained remunerative employment, and
(2) the report of Dr. Varrati provides some evidence on which the commission relied to
support the finding that the allowed conditions alone preclude all sustained remunerative
employment.
       {¶ 49} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
                                         First Issue
       {¶ 50} Equivocal medical opinions are not evidence. State ex rel. Eberhardt v.
Flxible Corp., 70 Ohio St.3d 649, 657 (1994).          Equivocation occurs when a doctor
No. 16AP-423                                                                             22


repudiates an earlier opinion, renders contradictory or uncertain opinions, or fails to
clarify an ambiguous statement. Id.
        {¶ 51} A medical report can be so internally inconsistent that it cannot be some
evidence on which the commission can rely. State ex rel. Lopez v. Indus. Comm., 69 Ohio
St.3d 445 (1994); State ex rel. Taylor v. Indus. Comm., 71 Ohio St.3d 582 (1995).
However, a court will not second-guess a doctor's medical expertise to support a claim of
internal inconsistency. State ex rel. Young v. Indus. Comm., 79 Ohio St.3d 484 (1997).
        {¶ 52} In State ex rel. Certified Oil Corp. v. Mabe, 10th Dist. No. 06AP-835, 2007-
Ohio-3877, this court states:
              "In general, the court does not 'second guess' medical
              opinions from medical experts and will remove a medical
              opinion from evidentiary consideration as having no value
              only when the report is patently illogical or
              contradictory * * *." State ex rel. Tharp v. Consol. Metal
              Prods., Franklin App. No. 03AP-124, 2003 Ohio 6355, P67.
              Moreover, it is well established that issues of weight and
              credibility of evidence lie outside the scope of mandamus
              inquiry. State ex rel. Burley v. Coil Packing, Inc. (1987), 31
              Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. The commission,
              as the finder of fact, has exclusive authority to determine the
              persuasiveness of evidence. State ex rel. Teece v. Indus.
              Comm. (1981), 68 Ohio St.2d 165, 429 N.E.2d 433; State ex
              rel. Bell v. Indus. Comm. (1995), 72 Ohio St.3d 575, 1995
              Ohio 121, 651 N.E.2d 989.

Id. at ¶ 4.

        {¶ 53} In State ex rel. Toth v. Indus. Comm., 80 Ohio St.3d 360, 362 (1997), the
Supreme Court of Ohio held that "part-time work constitutes sustained remunerative
employment." Id. at 362. However, the Toth court did not hold that any part-time
work─no matter how few the hours per week the job might entail─is considered sustained
remunerative employment.
        {¶ 54} On a case-by-case basis, guidance from this court has developed over time
as to what part-time employment may be viewed as sustained remunerative employment.
        {¶ 55} Recently, in State ex rel. Sheller-Chiles v. Indus. Comm., 10th Dist.
No. 13AP-245, 2014-Ohio-313, ¶ 5, this court had occasion to review the case law
establishing the standard for determining what part-time work capacity constitutes
No. 16AP-423                                                                              23


sustained remunerative employment. This court held that a work capacity of "four or
more hours per day" constitutes sustained remunerative employment. Id. See State ex
rel. Bonnlander v. Hamon, 10th Dist. No. 14AP-855, 2015-Ohio-4038. (Providing a
succinct discussion of Toth and Sheller-Chiles.)
       {¶ 56} According to relator, Dr. Cecil's statement on the C-140 form completed
August 8, 2014 that claimant was capable of working five days per week for two hours a
day contradicts his later opinion in his August 11, 2014 report that claimant "is
permanently and totally disabled from sustained remunerative activity."
       {¶ 57} As relator puts it here, just three days after completing the C-140, "with no
interim examination, office visit or contact with" claimant, Dr. Cecil "completely changed
his opinion and indicated that [claimant] has no work capability whatsoever." (Relator's
brief at 4.) (Relator's reply to claimant's brief at 6.)
       {¶ 58} Relator's argument is seriously flawed.        Dr. Cecil did not state in his
August 11, 2014 report that claimant "has no work capability whatsoever" as relator
incorrectly asserts. Relator, in effect, endeavors to rewrite Dr. Cecil's August 11, 2014
report in order to render an alleged contradictory statement.
       {¶ 59} As this court made clear in the Sheller-Chiles case, a work capacity of four or
more hours per day can constitute sustained remunerative employment. However, a work
capacity of less than four hours per day cannot be a capacity for sustained remunerative
employment. Bonnlander at ¶ 4.
       {¶ 60} Given the above authorities, it is clear that Dr. Cecil's statement on the
August 8, 2014 C-140 that claimant can work two hours per day and five days per week, is
not a statement that claimant is capable of sustained remunerative employment. Clearly,
the August 8, 2014 C-140 is consistent with Dr. Cecil's opinion in his August 11, 2014
report that claimant "is permanently and totally disabled from sustained remunerative
activity."
       {¶ 61} As earlier noted, the SHO's order of June 17, 2015 also relies on the April 6,
2015 Office note of Dr. Cecil. In fact, the PTD award was started on April 6, 2015 based
on Dr. Cecil's April 6, 2015 report. Again, the April 6, 2015 office note states:
               The patient has been considered disabled for sustained
               remunerative activity by me. In fact, it is my impression that
               she is receiving disability benefits from Social Security.
No. 16AP-423                                                                               24


              Nevertheless, it is my understanding that the patient has
              been returned by her employer to a sedentary job. Her
              biggest complaint with prolonged sitting is left hernithoracic
              pain. Worse than the prolonged sitting at work is the sitting
              in the car to drive to work. At times, this left hernithoracic
              pain has become intolerable for her. Both Cymbalta and
              tramadol are utilized which are efficacious though
              incompletely so.

              ***

              IMPRESSION:
              The patient is doing acceptably well at the present time.
              Unfortunately, persistent left hernithoracic pain and midline
              pain at the thoracolumbar junction impede her ability to sit
              for a sustained period of time, either at work or in a motor
              vehicle traveling to work.

              RECOMMENDATIONS:
              As I have previously opined, given the fact that the patient
              has reached maximum medical improvement, and despite
              this improvement has intractable pain even with sedentary
              activities, I am left to conclude to a reasonable degree of
              medical certainty that the patient is disabled for sustained
              remunerative activity and would be better served
              (unfortunately) by not working.

       {¶ 62} According to relator, Dr. Cecil's opinion that claimant "is disabled for
sustained remunerative activity" cannot constitute evidence of permanent total disability
because, as relator asserts, "there are no restrictions on driving per the medical claim file"
and claimant's testimony. (Relator's brief at 14.)
       {¶ 63} Before the SHO, claimant testified:
              Q. Do you know if you have any restrictions from Dr. Cecil or
              any other doctor on driving?

              A. No, I do not.

              Q. Okay. So you can drive anywhere you want, right?

              A. If I can stand to.

(June 17, 2015 Tr. at 41.)
No. 16AP-423                                                                                 25


        {¶ 64} It is difficult to see how the absence of a written driving restriction flaws Dr.
Cecil's opinion that claimant is "disabled for sustained remunerative activity."
        {¶ 65} Clearly, a driving restriction is not a prerequisite for showing an inability to
perform sustained remunerative employment. Moreover, one who has been adjudicated
permanently and totally disabled is not precluded from driving a motor vehicle. See State
ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-6086. (The claimant
drove a dump truck while receiving PTD compensation.) Id. at ¶ 5. (Where children are
involved, significant chauffer time may be required while on PTD.) Id. at ¶ 20.
        {¶ 66} Based on the above analysis, the magistrate concludes that the August 11,
2014 and April 6, 2015 reports of Dr. Cecil are indeed some evidence on which the
commission can rely to support its determination that claimant is unable to perform
sustained remunerative employment.
                          Second Issue: Dr. Varrati's Report
        {¶ 67} According to relator, Dr. Varrati's report is not some evidence on which the
commission can rely because the report is "incomplete," a term used by relator to describe
the report. (Relator's brief at 18.)
        {¶ 68} In reading Dr. Varrati's six-page narrative report, some observations can be
made. As relator points out, the report does not indicate that claimant informed Dr.
Varrati at the examination of certain events in the claim that relator feels should have
been disclosed or mentioned by Dr. Varrati in his report. For example, relator asserts that
Dr. Varrati was not informed that relator had extended a job offer and that claimant was
involved in vocational rehabilitation and a job search.
        {¶ 69} Presumably, from information provided by claimant at the examination, Dr.
Varrati reports limitations on standing, sitting, walking, and driving. Relator declares
that the reported limitations are "patently false" when compared to the surveillance
evidence of record and the hearing testimony of Mr. Diglaw. (Relator's brief at 19.)
        {¶ 70} Based on the foregoing, relator concludes that Dr. Varrati's report is
"incomplete" and, therefore, cannot provide some evidence on which the commission can
rely.
        {¶ 71} Relator's challenge to Dr. Varrati's report misperceives the role of the
examining doctor and ignores an administrative remedy that relator had, but failed to
No. 16AP-423                                                                              26


pursue. That is, relator failed to seek leave from the commission to take Dr. Varrati's
deposition.
       {¶ 72} Ohio Adm.Code 4121-3-09(A)(8) currently provides:
              Procedure for obtaining the oral deposition of, or submitting
              interrogatories to, an industrial commission or bureau
              physician.

              (a) A request to take the oral deposition of or submit
              interrogatories to an industrial commission or bureau
              physician who has examined an injured or disabled worker
              or reviewed the claim file and issued an opinion shall be
              submitted in writing to the hearing administrator within ten
              days from the receipt of the examining or reviewing
              physician's report and the applicant shall simultaneously
              mail a copy of the request to all parties, or if represented, to
              the representatives of the parties.

              (b) The request must set out the reasons for the request and
              affirm that the applicant will pay all costs of the deposition
              or interrogatories including the payment of a reasonable fee,
              as defined below, to the physician and will furnish a copy of
              the deposition or the interrogatory to the opposing party and
              to the file.

              (c) If the hearing administrator finds that the request is a
              reasonable one, the hearing administrator shall issue a
              compliance letter that will set forth the responsibilities of the
              party that makes the request.

       {¶ 73} At oral argument before the magistrate on March 29, 2017, the magistrate
was informed by all counsel attending the hearing that relator did not file a request to take
the oral deposition of or submit interrogatories to Dr. Varrati regarding his examination
of claimant on February 5, 2015.
       {¶ 74} Clearly, pursuant to Ohio Adm.Code 4121-3-09(A)(8), relator could have
requested leave to depose Dr. Varrati regarding the surveillance evidence of record and
other evidence of record that relator feels should have been disclosed to Dr. Varrati at the
time of his examination of claimant and the issuance of his narrative report. See State ex
rel. Midmark Corp. v. Indus. Comm., 78 Ohio St.3d 2 (1997); Lawson at ¶ 30.
       {¶ 75} Based on the foregoing, the magistrate concludes that relator has failed to
show that the report of Dr. Varrati cannot be relied on to support the PTD award.
No. 16AP-423                                                                         27


      {¶ 76} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.
                                             /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).
