[Cite as State ex rel. Smurfit-Stone Container Corp. v. Indus. Comm., 2013-Ohio-4779.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel.                                  :
Smurfit-Stone Container Corp.,
                                                       :
                 Relator,
                                                       :                        No. 12AP-1049
v.
                                                       :                  (REGULAR CALENDAR)
Industrial Commission of Ohio and
David Wenger,                                          :

                 Respondents.                          :




                                           D E C I S I O N

                                    Rendered on October 29, 2013


                 Taft Stettinius & Hollister LLP, and Charles M. Stephan, for
                 relator.

                 Michael DeWine, Attorney General, and Patsy A. Thomas,
                 for respondent Industrial Commission of Ohio.

                 Jeffrey Waite & Associates, and C. Jeffrey Waite, for
                 respondent David Wenger.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, P.J.
        {¶ 1} Relator, Smurfit-Stone Container Corporation, commenced this original
action in mandamus seeking an order compelling respondent, Industrial Commission of
Ohio ("commission"), to vacate its order finding that relator had not proved that a
January 2009 injury to respondent, David Wenger ("claimant"), and a subsequent surgery
severed the causal connection between his industrial injury and his disability. Relator
No. 12AP-1049                                                                                2

further requests that we enter an order requiring the commission to find that the
claimant's January 2009 injury and subsequent surgery were the intervening causes of his
disability.
       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found that the
commission did not abuse its discretion when it determined that relator failed to prove
that claimant's act of reaching for a shirt at Walmart, which caused an injury necessitating
surgery, was an intervening cause that severed the causal connection between claimant's
work-related injury and his disability. Because the medical reports of Drs. Peloza and
Makowski are some evidence supporting the commission's decision, the magistrate
concluded that the commission did not abuse its discretion. Therefore, the magistrate has
recommended that we deny relator's request for a writ of mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision.            In its first
objection, relator contends that the magistrate erred in framing the issue presented by
relator. We disagree. The magistrate correctly focused on whether the commission
abused its discretion by concluding that relator failed to prove the claimant suffered an
intervening and superseding injury that severed the causal connection between claimant's
industrial injury and his disability. Therefore, we overrule relator's first objection.
       {¶ 4} In its second objection, relator contends that the magistrate should have
found that the commission abused its discretion by relying on the report of Dr. Peloza. In
essence, relator wants us to re-weigh Dr. Peloza's report. That is not this court's role in a
mandamus action. Although relator may disagree with Dr. Peloza's opinion, it is some
evidence supporting the commission's decision. Therefore, we overrule relator's second
objection.
       {¶ 5} In its third objection, relator argues that the magistrate erred when she
concluded that the commission did not abuse its discretion by relying on Dr. Makowski's
report. Again, relator wants us to re-weigh the medical evidence. Dr. Makowski's report
is not internally inconsistent.    His report clearly indicates that claimant's injury at
Walmart and the resulting surgery were not superseding intervening causes that severed
the causal connection between claimant's allowed claim and his disability.                 The
No. 12AP-1049                                                                                      3

commission did not abuse its discretion by relying on Dr. Makowski's report. Therefore,
we overrule relator's third objection.1
       {¶ 6} Lastly, relator contends that the commission's decision is inconsistent with
case law. However, the cases relator discusses simply stand for the proposition that
medical evidence is needed to support a commission's determination that there has been
a superseding/intervening cause that severs the causal connection between claimant's
industrial injury and claimant's disability. Although relator submitted medical evidence
to support its position before the commission, the commission relied instead on medical
evidence submitted by claimant. In reality, relator simply argues that the commission
should have relied on its medical evidence rather than the medical evidence submitted by
claimant. Again, it is not the role of this court to re-weigh the evidence. Because there is
medical evidence supporting the commission's decision, the commission did not abuse its
discretion in denying relator's motion. Therefore, we overrule relator's final objection.
       {¶ 7} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
                                             Objections overruled; writ of mandamus denied.

                              TYACK and CONNOR, JJ., concur.




1
  We further note that the commission also relied upon the deposition testimony of Dr. Patel. Relator
advances no arguments challenging Dr. Patel's opinion.
No. 12AP-1049                                                                        4

                                       APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State of Ohio ex rel.                        :
Smurfit-Stone Container Corp.,
                                             :
             Relator,
                                             :                  No. 12AP-1049
v.
                                             :               (REGULAR CALENDAR)
Industrial Commission of Ohio and
David Wenger,                                :

             Respondents.                    :




                        MAGISTRATE'S DECISION

                                 Rendered on July 16, 2013


             Taft Stettinius & Hollister LLP, and Charles M. Stephan, for
             relator.

             Michael DeWine, Attorney General, and Patsy A. Thomas,
             for respondent Industrial Commission of Ohio.

             Jeffrey Waite & Associates, and C. Jeffrey Waite, for
             respondent David Wenger.


                                     IN MANDAMUS

      {¶ 8} Relator, Smurfit-Stone Container Corp., has filed this original action
requesting that this court issue a writ of mandamus ordering respondent Industrial
Commission of Ohio ("commission"), to vacate its order which found that relator had not
met its burden of proving that a January 2009 injury to respondent David Wenger
("claimant"), had severed the causal connection between his industrial injury and his
No. 12AP-1049                                                                       5

disability and ordering the commission to find that claimant's January 2009 injury had
become the intervening cause of his disability.
Findings of Fact:
       {¶ 9} 1. Claimant sustained a work-related injury on March 6, 1989, and his
workers' compensation claim has been allowed for the following conditions:
              Lumbar sprain;        herniated     disc   L5[-]S1;   thoracic
              sprain/strain.

       {¶ 10} 2. Claimant underwent an "L5-S1 [discectomy] and foraminotomy on the
right side" on March 26, 1998.
       {¶ 11} 3. Claimant continued to have low back pain and continued to receive
treatment.
       {¶ 12} 4. Augustus L. Guerrero, M.D., conducted an independent medical
examination on July 13, 2000. Dr. Guerrero stated:
              It is my opinion that an L5 S1 [discectomy] and
              foraminotomy on the right side for an L5-S1 disc herniation
              done in 1998 was very appropriate. Unfortunately his pain
              has persisted and is status-post [discectomy] and right
              foraminotomy. There is possible scar tissue formation
              around the S1 nerve root. I believe his chronic back condition
              is further aggravated by degenerative disc disease at level L4-
              L5.

At that time, Dr. Guerrero noted that claimant was taking OxyContin, Neurontin, and
Prosac. With regard to future treatment, Dr. Guerrero concluded:
              The L4, L5 disc degeneration is a concern and needs to be
              addressed with a provocative [discogram] and if
              confirmatory, would again confirm presence of inner disc
              disruption which can be helped with the IDET procedure or
              one or two level lumbosacral fusion. Lastly I do not believe
              this gentleman can return to heavy manual labor but will
              need permanent work restrictions. It is my professional
              opinion that he probably should not lift more than 35
              pounds and should be allowed to sit and stand at will and his
              trunk rotation, bending, and twisting should be limited to an
              infrequent basis. Riding moving machinery especially
              vehicles with poor shock absorbers should be prohibited.
              Lastly this gentleman should be follow-up [sic] by a
              specialist in treatment of the lower back such as an
No. 12AP-1049                                                                         6

              orthopedic surgeon or a physiatrist for the next 5-10 years on
              a yearly basis.

       {¶ 13} 5. In a report dated June 12, 2006, claimant's treating physician John L.
Peloza, M.D., recommended surgery:
              The MRI shows decreased disc signal and decreased disc
              height at both L4-L5 and L5-S1. At L3-L4, he has decreased
              disc signal but a much less degenerative spine. The facet
              joints at L5-S1 are significantly degenerative and this is the
              location of his previous surgery. He has post-surgical
              changes, mainly on the right side in the foramen and lateral
              recess. At l4-L5, he has a midline annular tear. The facets
              actually look okay. At L3-L4, the facets are in good condition
              without herniations or stenosis. He has an MRI of his
              thoracic spine that shows multilevel degenerative changes in
              the thoracic spine, but no other findings. He has also had a
              lumbar discogram. At L2-L3, it is normal with no pain. At
              L3-L4, it is abnormal morphologically with 6/10 concordant
              pain. At L4-L5 and L5-S1, he has abnormal morphology and
              severe concordant pain of 10/10.

              In the lumbar spine, I think he has degenerative disc disease
              as well as post laminectomy syndrome. I think that his pain
              is discogenic, mainly from L4-L5 and L5-S1 and also from
              L3-L4.

              Because he has post laminektomy syndrome at L5-S1 with
              degenerative facets, I thin that this level should be fused. I
              will put motion devices in at L4-L5 and L3-L4. We discussed
              the different motion devices. My view is that the maverick
              metal on metal disc replacement would be the best motion
              device. I would put those in at L4-L5 and L3-L4 and, at the
              same time, do a fusion at L5-S1 with LT cages, InFuse and
              pyramid plate. We have reviewed this with the patient. They
              really like this plan, but the Maverick is not available yet. It
              will probably be approved by the first quarter of 2007. The
              data on the maverick is showing superiority to a modern
              fusion technique as well as superiority to any other motion
              device. He will return in six months.

       {¶ 14} 6. Because Dr. Peloza opined that claimant had additional conditions which
should be allowed in his claim, claimant filed a motion seeking to have his claim
additionally allowed for the following conditions:
No. 12AP-1049                                                                           7

              Thoracic sprain and strain[;] post laminectomy syndrome[;]
              degenerative disc disease L3-4 and L4-5[.]

       {¶ 15} 7. As noted previously, relator allowed claimant's claim for thoracic sprain
and strain; however, the issue of whether post laminectomy syndrome and degenerative
disc disease at L3-4 and L4-5, while denied by the commission, are currently pending in
the Hamilton County Court of Common Pleas.
       {¶ 16} 8. Claimant saw Bruce E. Dall, M.D., on January 20, 2009 complaining of
the sudden onset of back pain while he was at Wal-Mart.
       {¶ 17} 9. Claimant consulted with Pamela K. Kilmer, M.D., on January 29, 2009.
Dr. Kilmer explained what happened to claimant as follows:
              What is new and different for Mr. Wenger is an acute onset
              of right leg pain that happened when he reached up over his
              right shoulder to look at a camouflage shirt while shopping
              at Wal-Mart. He had an acute onset of back pain radiating
              into the right leg that almost sent him to his knees. He
              grabbed the shopping cart for some stability. Previous to this
              injury on 01/02/2009, his baseline was chronic back pain.
              He could walk on his heels, but not his toes. Now he can no
              longer walk on his heels. He has a previous history of lumbar
              laminectomy and has some chronic numbness and tingling
              in the right leg, but it is now worse. He rates pain as an 8 or
              9. Pain medication and changing positions seem to help.
              Prolonged standing or walking increases right leg pain. He is
              making some improvement since this happened. He was
              practically in bed for three days straight when the injury first
              occurred.

       {¶ 18} 10. It appears a new MRI was taken which revealed the following:
              I have reviewed his MRI, and he has the degenerative
              changes as stated above; but, he has a new herniated disk
              [sic], L4-5 on the right, which does obstruct the L5 nerve
              root and would be consistent with his leg symptomatology.

       {¶ 19} 11. Claimant also consulted with Chetan K. Patel, M.D. In his February 12,
2009 report, Dr. Patel discussed with claimant non-operative treatment including
physical therapy and injections. Dr. Patel also discussed surgical interventions in the
form of a right L4-5 discectomy, fusion, decompression of the L5-S1 level, and informed
claimant there was a significant chance he would continue to have persistent pain in spite
of surgical intervention.
No. 12AP-1049                                                                       8

      {¶ 20} 12. On March 2, 2009, Dr. Patel performed the following surgical
procedure on claimant
             Revision L4-5, L5-S1 laminectomy, discectomy, T-lift,
             posterior spinal fusion with instrumentation, lysis of
             epidural adhesions right L5-S1 level, left posterior iliac crest
             bone graft, local bone graft.

In his operative report, Dr. Patel discussed claimant's history and the reason for the
surgery as follows:
             Mr. Wenger is a 52 year old male with a history of work
             related injury back in 1989. He eventually underwent a right
             lumbar discectomy at the L5-S1 level and noted some relief
             of his symptoms. He subsequently has had chronic low back
             pain and bilateral leg pain for which he has seen multiple
             surgeons and contemplated surgical intervention. While he
             was in the process of making a decision of having a potential
             fusion done for his chronic pain he developed acute
             worsening of his right leg pain now radiating more to the
             dorsum of the foot along with numbness and tingling and
             developed a foot drop.

             He attempted conservative treatment of this and was not
             responding and wanted to undergo surgical intervention. He
             has seen a local neurosurgeon over in Kalamazoo, Michigan
             and had discussed the treatment alternatives there. He saw
             me for a second opinion and subsequently wanted me to
             perform the procedure.

             I discussed his imaging studies which demonstrated
             significant degenerative changes at L4-5 and L5-S1 level
             along with a right-sided L5-S1 herniated nucleus pulposus
             impinging on the right L5 nerve root.

             In addition there appeared to be significant epidural scarring
             at the right L5-S1 level along with a more central and left-
             sided disc protrusion[.] There was significant spondylotic
             changes present at this level as well. There was foraminal
             narrowing leading to foraminal stenosis at the L5-S1 level. I
             explained the nonoperative and operative treatment options
             in great detail to him. His foot drop was not improving at all
             and he wanted to undergo surgical intervention. I discussed
             performing just a decompression along from the more acute
             symptoms which are likely attributed to the right L4-5 disc
             level based on his history. He, however, felt that he had
             decided to go ahead and address his chronic low back and
No. 12AP-1049                                                                      9

             bilateral leg pain with decompression and fusion already and
             wanted to proceed ahead with this. I did explain that in spite
             of surgical intervention his foot drop may not improve and
             he may still have persistent pain. I explained to him that
             there is a chance of actually having worsening symptoms
             although I do believe this is small.

      {¶ 21} 13. On January 31, 2011, relator filed a C-86 motion requesting the
commission find:
             [One] That on January 2, 2009 David Wenger sustained a
             non-work related intervening lower back injury which, in
             conjunction with the surgery and other treatment that the
             intervening injury made necessary, substantially aggravated
             and superseded the condition "herniated disc L5-S1";

             [Two] That Smurfit-Stone Container Corporation no longer
             has liability under David Wenger's claim for compensation
             and medical expenses for the condition "herniated disc L5-
             S1"; and

             [Three] That Smurfit-Stone Container Corporation no longer
             has liability under David Wenger's claim for the medications
             OxyContin, Gabapentin, Lansoprazole, and Hydrocodone.

Relator submitted the following documentation in support of its motion:
             [One] January 2 [handwritten 7th?], 2011 IME report of
             Thomas Bender, M.D.
             [Two] Dr. Bender's January 31, 2011 Addendum report
             [Three] Excerpts from the transcript of Dr. C. Patel's
             January 14, 2011 trial deposition
             [Four] Dr. Patel's February 12, 2009 Consultation note
             [Five] Dr. Dall's January 20, 2009 Consultation note
             [Six] Dr. Kilmer's January 22, 2009 Consultation note
             [Seven] Midwest Orthopedic Group Intake Form

      {¶ 22} 14. In his January 7, 2011 report, Dr. Bender opined that the January 2,
2009 event constituted a new and distinct low back condition/diagnosis, stating:
             It is my opinion to a reasonable degree of medical probability
             that Mr. Wenger's lumbar spine conditions significantly
             worsened after the time of 1/2[/]09. It is evident the
             claimant developed an acute extruded disc herniation at L4-5
             since the time of my prior evaluation in 2008. This extruded
             disc herniation was identified on the MRI scan of 1/13/09
             and corresponds to the symptoms recorded in Dr. Dall's
No. 12AP-1049                                                                        10

             record, Dr[.] Kilmer's record, and Dr. Patel's record. In other
             words, what had been previously identified in 2005 as a non-
             compressive disc protrusion at L4-5 substantially became a
             neurologically compressive herniation to the degree of
             extrusion causing the footdrop to the right lower extremity
             as a result of significant L5 and S1 nerve root compression to
             the right lower extremity. Certainly the disc extrusion at the
             L4-5 level that the claimant was found to have after the time
             of 1/2/09 does constitute a new and distinct low back
             condition/diagnosis. Certainly the development of a disc
             extrusion represents a new and distinct circumstance or
             event in proximity to the time of 1/2/09 and has no
             relationship to either the injury of 3/6/89 or degenerative
             spinal disease. It is my opinion that the surgery that the
             claimant engaged on 3/2/09 was made medically necessary
             as a result of the event or circumstances that happened on
             1/2/09. It is my opinion that the event of 1/2/09 resulted in
             an extruded disc herniation and right leg foot drop that
             necessitated the surgery that was performed on 3/2/09. The
             amount of disc extrusion at L4-5 made necessary the need
             for the instrumentation from L4 to the sacrum. Therefore the
             volume of surgery performed on 3/2/09 was made necessary
             by the event of 1/2/09 and the new insult to the L4-5 level.
             Finally, as the records indicate, Dr. Patel did not find clinical
             indication to perform any type of intervention to the L3-4
             level.

      {¶ 23} 15. Dr. Bender provided the following additional opinion in his January 31,
2011 addendum:
             [I]t is my opinion that the claimant sustained a distinct and
             new spinal injury on 01/02/09. This event resulted in an
             extruded L4-L5 disk [sic] herniation and significant right leg
             foot drop. The characterization of the volume disk [sic]
             displacement as "extrusion" and a severe neurological
             problem to the right lower extremity resulting in a foot drop
             make the new injury of 01/02/09 a very substantial
             intervening occurrence.

      {¶ 24} 16. Claimant submitted the March 3, 2011 report of David Norbert
Makowski, D.O., disagreed with Dr. Bender and stated:
             att. 17 reports to me that the "event" at Walmart that occurred
             in January of 2009 consisted of no significant physical
             exertion. Mr. Wenger states that he was walking behind his
             shopping cart in an aisle at a Walmart, when he reached for a
             shirt on a hanger. He estimates that the shirt was hanging at
No. 12AP-1049                                                                 11

           about shoulder height. Usually activity such as this is not a
           cause of any medical problem, let alone disc protrusion.

           But the employer's Motion, as I read it, requests a finding
           that the event at Walmart be found to be "intervening," in
           effect, for the entire workers' compensation injury. This
           conclusion I strongly disagree with, as did Dr. Patel. The fact
           is that prior to January of 2009, Mr. Wenger had been
           receiving ongoing treatment and medications for ongoing
           chronic back symptoms that were present before and after
           January of 2009, and which have absolutely nothing to do
           with Mr. Wenger shopping at Walmart. In fact, as far back as
           2006, a recommendation had been made by Dr. Peloza, a
           renowned surgeon in Texas, that Mr. Wenger proceed with
           surgery because of complications from his prior surgery of
           1998, which included considerable scar tissue as well as
           aggravation of degenerative disc disease at L4-5.
           Furthermore, long before January of 2009, a request had
           been made requesting that degenerative disc disease at L4-5
           be added to Mr. Wenger's workers' compensation claim. This
           request had been pending for a long time when Mr. Wenger
           went shopping at Walmart.

           In my opinion, Dr. Patel got it just right. It appears that the
           event at Walmart caused protrusion that ordinarily would
           never have been caused by such activity. This event,
           however, could not possibly have caused a change of the
           ongoing very serious problems at the L5-S1 level, and could
           not possibly have aggravated the ongoing degeneration at the
           L4-5 level, for which surgery had previously already been
           recommended. The protrusion occurring at L4-5 was a fluke
           occurrence that did not extend beyond the protrusion.

           As Dr. Patel said in his deposition, when he performed
           surgery in March of 2009, only the part of the surgery that
           pertained to the disc protrusion at L4-5 was unrelated to the
           work injury and prior surgery in 1998. In fact, if you read
           through Dr. Patel's operative report, you will see that it is an
           unusually extensive operative report. It appears that Dr.
           Patel purposely details the surgery so that portions of the
           surgery attributable to the work injury are separable from
           what is not.

           Reaching for a shirt when shopping at Walmart did not cause
           scar tissue; it did not aggravate scar tissue, and did not
           change in any way the portions of the surgery described by
           Dr. Patel that involved extensive revision of scar tissue. The
No. 12AP-1049                                                                           12

              activity described places such little demand on the back that
              it is almost laughable to conclude that reaching for a shirt
              while shopping at Walmart aggravated or is now somehow
              the cause of Mr. Wenger's long standing degenerative disc
              disease at the L4-5 or need for treatment at L5-S1. It's sort of
              like saying that, if someone reports a worsening of chronic
              pain when breathing heavy, the act of breathing must be
              deemed to be the cause of that pain thereafter.

              Mr. Wenger was injured at work in 1989 performing very
              heavy work activity that is associated with the type of severe
              back injury that he has experienced. He had extensive
              surgery in 1998. The surgery resulted in significant scar
              tissue and a need for surgery that would have arisen whether
              or not Mr. Wenger went shopping at Walmart. His ongoing,
              chronic back problems were unaffected by his trip to
              Walmart. It, by fluke, caused a rupture of a disc, and that's
              all. This conclusion is apparent from the operative report.

              Maybe it is hard for a lay person to understand that it is
              highly unlikely that the minimal act that apparently caused
              disc protrusion did not cause, alter or affect any other
              aspects of Mr. Wenger's ongoing back problems. By analogy,
              if my entire car needs painted and someone taps it with a
              shopping cart which, by fluke, knocks off the door handle,
              that does not mean that the car [sic] entire car now needs to
              be painted because of the shopping cart.

       {¶ 25} 17. Relator has attached a portion of deposition testimony of Dr. Patel taken
as part of discovery in the action currently pending in the Hamilton County Court of
Common Pleas.
       {¶ 26} 18. The matter was heard before a staff hearing officer ("SHO") on May 16,
2011. The SHO denied relator's motion, finding that relator did not meet its burden of
proving that claimant sustained an intervening and superseding injury to his low back on
January 2, 2009 and that relator failed to present sufficient medical evidence to support a
finding that a new injury severed the causal connection and became the intervening cause
of claimant's resulting disability. The SHO stated:
              The Staff Hearing Officer finds in this case that the Injured
              Worker due to an incident that occurred on 1/2/2009 had an
              acute herniation at the L4-5 level. The issue becomes: Did
              the acute herniation at L4-5 sever the causal connection and
              become the cause of the surgery and the subsequent
No. 12AP-1049                                                                            13

              treatment on and after 1/2/2009? Dr. Patel in the deposition
              dated 1/14/2011 testified that the parts of the surgery
              performed on 3/2/2009 were due to the acute herniation
              and parts were due to the original injury. Dr. Patel testified
              the epidural scarring and the chronic radiculopathy that he
              had treated with the surgery on 3/2/2009 stems from the
              1989 work injury and not the 1/2/2009 incident.

              Dr. Peloza['s] [report] dated 6/2/2006 opined that the facet
              joints at the L5-S1 are significant[ly] degenerated and this is
              the location of the previous surgery.

              Additionally, Dr. Peloza opined that at the L5-S1 level he has
              abnormal morphology and severe concordant pain of 10/10.
              Dr. Peloza further opined that because he has post-
              laminectomy syndrome at the L5-S1 with degenerative facets
              this level should be fused. The Staff Hearing Officer also
              relies on the opinion of Dr. Makowski. Dr. Makowski opined
              in the report dated 3/3/2011 that the event that occurred on
              1/2/2009 caused the protrusion but that the event could not
              possibly have caused the change in the ongoing various
              serious problems at the L5-S1 level for which surgery had
              previously been recommended.

              Based upon the above findings, the Staff Hearing Officer
              orders that the C-86 motion filed 1/31/2011 requesting a
              finding of an intervening injury and the removal of liability
              for the named employer for compensation and medical
              expenses for the allowed conditions in the claim is denied.

              This order is based upon the deposition of Dr. Patel dated
              1/14/2011, report of Dr. Peloza dated 6/12/2006 and the
              report of Dr. Makowski dated 3/3/2011.

       {¶ 27} 19. Relator's appeal was refused by order of the commission mailed
June 10, 2011.
       {¶ 28} 20. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 29} In this mandamus action, relator phrases the commission's abuse of
discretion, as follows:
              A. THE COMMISSION ABUSED ITS DISCRETION BY NOT
              WEIGHING THE EVIDENCE AND ADDRESSING THE
              ISSUE WHETHER WENGER'S JANUARY 2009 INJURY
              WAS THE PROXIMATE CAUSE OF HIS MARCH 2009
No. 12AP-1049                                                                              14

              SURGERY AND SUBSEQUENT DISABILITY, BUT
              INSTEAD ADDRESSING THE QUESTION WHETHER
              THERE IS ANY EVIDENCE THAT WENGER'S ORIGINAL
              INJURY IS STILL THE PROXIMATE CAUSE OF HIS
              DISABILITY.

              ***

              B. THE COMMISSION ABUSED ITS DISCRETION IN
              FINDING A REMAINING CAUSAL CONNECTION
              BETWEEN WENGER'S ORIGINAL INJURY AND HIS
              MARCH 2, 2009 SURGERY ON THE GROUND THAT
              "PARTS OF THE SURGERY WERE DUE TO THE
              ORIGINAL INJURY."

              ***

              C. THE COMMISSION ABUSED ITS DISCRETION IN
              FINDING A REMAINING CAUSAL CONNECTION
              BETWEEN WENGER'S ORIGINAL INJURY AND HIS
              MARCH 2, 2009 SURGERY ON THE GROUND THAT "DR.
              PELOZA OPINED THAT AT THE L5-S1 LEVEL [WENGER]
              HAS ABNORMAL MORPHOLOGY AND SEVERE
              CONCORDANT PAIN OF 10/10."

(Relator's brief, 6-9.)

       {¶ 30} No matter how relator tries to frame its arguments in this mandamus case,
the issue is relatively simple: did the commission abuse its discretion when it decided
that relator failed to meet its burden of proving that claimant's act of reaching for a shirt
at Walmart and the subsequent exacerbation of his symptoms constituted an intervening
injury which severed the causal connection between claimant's original work-related
injury and the March 2009 surgery?
       {¶ 31} For the reasons that follow, the magistrate finds that relator has not
demonstrated that the commission abused its discretion by finding that claimant's act of
reaching for a shirt at Walmart and the subsequent exacerbation of his symptoms was not
an intervening injury which severed the causal connection between his work-related
injury and the March 2009 surgery.
       {¶ 32} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
No. 12AP-1049                                                                            15

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 33} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 34} It is undisputed that there must be a causal connection between an injury
arising out of and in the course of a claimant's employment and his subsequent harm or
disability. State ex rel. Webb v. Indus. Comm., 76 Ohio App.3d 701 (10th Dist.1991). A
claimant must provide competent medical evidence to establish that a probable
relationship exists between the original work-related injury and the claimant's disabling
condition. See State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 81 Ohio St.3d 56
(1998).
       {¶ 35} Here, the question before the commission was whether or not claimant
sustained an intervening injury which broke the causal connection between his work-
related injury and his disability. In finding that claimant's act of reaching for a shirt in
Walmart and the ensuing pain which followed did not constitute an intervening injury
which broke the causal connection between his work-related injury and his disability, the
commission relied upon the medical reports of Drs. Peloza and Makowski.
       {¶ 36} In his June 12, 2006 medical report, Dr. Peloza opined that claimant
needed surgery which would include fusion. This was approximately three years before
the events at Walmart. In his March 3, 2011 report, Dr. Makowski agreed that the medical
No. 12AP-1049                                                                           16

evidence indicated that surgery had been recommended in 2006 and that it was
necessitated due to complications from the prior surgery in 1998 which had resulted in
considerable scar tissue and aggravation of claimant's degenerative disc disease at L4-5.
Dr. Makowski stated further that the act of reaching for a shirt was not an intervening
injury and that it could not possibly have caused a change in claimant's ongoing serious
problems. As Dr. Makowski stated, claimant's activity at Wal-Mart placed "such little
demand on the back that it is almost laughable to conclude that reaching for a shirt while
shopping at Walmart aggravated or is now somehow the cause of Mr. Wenger's long
standing degenerative disc disease at the L4-5 or need for treatment at L5-S1. It's sort of
like saying that, if someone reports a worsening of chronic pain when breathing heavy, the
act of breathing must be deemed to be the cause of that pain thereafter."
       {¶ 37} In State ex rel. Steinbrunner v. Indus. Comm., 10th Dist. No. 05AP-626,
2006-Ohio-3444, Charles Steinbrunner had sustained a work-related injury affecting his
lower back and was awarded a period of temporary total disability ("TTD") compensation.
Steinbrunner's TTD compensation was terminated after the commission determined that
his allowed conditions had reached maximum medical improvement ("MMI").
Thereafter, Steinbrunner tripped over his dog's leash. In a report dated November 17,
2004, Steinbrunner's treating physician James E. Sauer, D.C., noted that the fall had
significantly aggravated Steinbrunner's lower back. The commission relied on this report
from Dr. Sauer to deny further medical treatment on grounds that Steinbrunner had
suffered an intervening injury that was non-industrial and unrelated to his claim.
       {¶ 38} Steinbrunner filed a mandamus action in this court and, this court adopted
the conclusions of its magistrate who found that Dr. Sauer did not opine that the
significant aggravation was an intervening injury which effectively eliminated the allowed
back conditions as the cause of Steinbrunner's disability. The magistrate cited Yellow
Freight for the proposition that the commission and its hearing officers do not have
medical expertise in adjudicating medical issues before them.         As such, this court
determined that Dr. Sauer's report failed to provide the "some evidence" needed to
support the commission's decision.
       {¶ 39} Specifically, this court stated in Steinbrunner:
              Just as there must be medical evidence to support the causal
              relationship between the original industrial accident and the
No. 12AP-1049                                                                        17

              claimed disability, there must be medical evidence to support
              a finding that a new injury has severed the causal connection
              and become the intervening cause of the resulting disability.
              Here, although respondents would have us believe that Dr.
              Sauer's November 17, 2004 report contains medical evidence
              that relator suffered a new and intervening injury when he
              tripped over his dogs, no such evidence is present.

              Dr. Sauer's report merely opines that relator "significantly
              aggravated his lower back" by tripping over his dogs. This
              statement alone is not enough to support the commission's
              conclusion that relator suffered a new injury, let alone one
              that severed the causal connection between relator's
              industrial injury and his disability. However, as noted by the
              magistrate, the lack of evidence to support one conclusion
              does not automatically translate into the existence of
              evidence to support the opposite conclusion.

Id. at ¶ 23-24.

       {¶ 40} Similarly, in State ex rel. Tracy v. Indus. Comm., 10th Dist. No. 07AP-88,
2007-Ohio-5792, affirmed by State ex rel. Tracy v. Indus. Comm., 121 Ohio St.3d 477,
2009-Ohio-1386, Mary J. Tracy sustained a work-related injury in January of 2004, and
her claim was allowed for various cervical conditions including C6-7 herniated nucleus
pulposus and C5-6 disc protrusion. Tracy received periods of TTD compensation through
December 2005 at which time the commission determined that her allowed conditions
had reached MMI.
       {¶ 41} In February 2006, Tracy's treating physician Paul D. Mumma, D.O., noted
that she had reinjured her neck the previous week while pushing back with her head
against the headrest of her car. At that time, Tracy experienced sudden onset of pain.
After reviewing new MRI images and following surgery, Dr. Mumma attributed the
necessity of surgery and an additional period of TTD compensation solely to the original
2004 work-related injury. Specifically, Dr. Mumma stated:
              Ms. Tracey [sic] did exacerbate her preexisting injury while
              repositioning herself in her car on 02/06/2006.

              At that time she felt an increase in pain in her arm and her
              neck hurt more than usual for a while.
No. 12AP-1049                                                                          18

               Ms. Tracy had a preexisting work-related herniated nucleus
               pulposus at C5-6 and C6-7 documented by MRI scanning
               prior to her mild exacerbation of this same injury on
               02/06/2006. It was preexisting and mere active pushing on
               the headrest would not have caused a herniated nucleus
               pulposus to appear somewhere else. This pathology was
               clearly demonstrated and addressed surgically by Dr. Fulton
               on 05/26/2006.

Id. at ¶ 18.

       {¶ 42} Tracy's employer argued, and the commission agreed, that the February
2006 report of Dr. Mumma supported a finding that Tracy had sustained an intervening
injury which was the cause of the new period of disability.
       {¶ 43} Tracy filed a mandamus action in this court. In adopting the decision of its
magistrate, this court disagreed and stated:
               The whole of Dr. Mumma's materials following the second
               MRI, however, leave no doubt that Dr. Mumma found
               relator's “original injury of 01/30/2004 was the proximate
               and sole cause of the neck pain, arm pain, and MRI findings
               of herniated nucleus pulposus of C5-6 and C6-7. It is also my
               opinion that her surgery was medically necessary and
               performed only as a consequence of her injury.” (Dr.
               Mumma June 10, 2006 letter.) The commission had no
               medical reports to the contrary. Because the commission
               itself lacked the medical expertise to adjudicate medical
               issues without the necessary medical evidence, the
               magistrate properly concluded the commission abused its
               discretion in determining relator sustained an intervening
               injury. State ex rel. Steinbrunner v. Indus. Comm., Franklin
               App. No. 05AP-626, 2006-Ohio-3444; State ex rel. Yellow
               Freight Sys., Inc. v. Indus. Comm. (1998), 81 Ohio St.3d 56.

Id. at ¶ 4.

       {¶ 44} This court's decision was upheld by the Supreme Court of Ohio.
       {¶ 45} In the present case, the commission reviewed the medical evidence and
concluded that the medical evidence did not support relator's argument that claimant's
act of reaching for a shirt in Wal-Mart constituted an intervening injury which broke the
causal connection between the allowed conditions caused by the work-related injury in
claimant's resulting disability. The commission's determination in the present case is
No. 12AP-1049                                                                              19

consistent with the case law from both this court and the Supreme Court of Ohio. The
commission did not abuse its discretion by finding that the medical evidence submitted by
relator was not sufficient to support relator's argument that claimant's need for surgery
was related to something other than the allowed conditions in this claim. As such, it is
this magistrate's decision that relator has not demonstrated that the commission abused
its discretion and that this court should deny relator's request for a writ of mandamus.




                                          /S/ MAGISTRATE
                                         STEPHANIE BISCA BROOKS




                                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).
