[Cite as State ex rel. Wolosyn v. Indus. Comm., 2020-Ohio-460.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Angela M. Wolosyn,                   :

                 Relator,                              :

v.                                                     :             No. 18AP-595

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

                 Respondents.                          :



                                           D E C I S I O N

                                   Rendered on February 11, 2020


                 Grubb & Associates, LPA, Natalie F. Grubb, and Mark E.
                 Owens, for relator.

                 Dave Yost, Attorney General, and Natalie J. Tackett, for
                 respondent Industrial Commission of Ohio.

                 Roetzel & Andress Co. LPA, and Morris L. Hawk, for
                 respondent Samaritan Care Center.

                                            IN MANDAMUS

BRUNNER, J.
        {¶ 1} Relator, Angela M. Wolosyn, filed this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio (the "commission"), to
vacate its order which awarded her a six percent permanent partial disability ("PPD"),
relying in part on the report of David Garcia, D.O. Wolosyn requests that this Court order
the commission to redetermine the percentage of her PPD award after excluding Dr.
Garcia's report from evidentiary consideration and considering instead other evidence she
provided, including the report of Dr. James O'Reilly.
        {¶ 2} In accord with Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate of this Court who issued on September 24,
No. 18AP-595                                                                             2


2019 the appended decision, which included findings of fact and conclusions of law. The
magistrate found that Wolosyn has not demonstrated the commission abused its discretion
by considering Dr. Garcia's report. The magistrate has concluded, therefore, that the
commission was able to consider the reports of both Dr. Garcia and Dr. O'Reilly and did
not abuse its discretion when it awarded Wolosyn a percentage of PPD based on a number
that fell between the numbers reported by those two physicians.            Accordingly, the
magistrate has recommended that we deny Wolosyn's request for a writ of mandamus.
       {¶ 3} Wolosyn has not filed any objection to the magistrate's decision.
       {¶ 4} Based on our review of the magistrate's decision and our independent review
of the record, we find the magistrate has properly stated the pertinent facts and applied the
appropriate law. We adopt the magistrate's decision as our own, including the findings of
facts and conclusions of law in that decision. Accordingly, Wolosyn's petition for a writ of
mandamus is denied.
                                                    Petition for writ of mandamus denied.

                      BROWN and LUPER SCHUSTER, JJ., concur.
No. 18AP-595                                                                          3


                                        APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


The State ex rel. Angela M. Wolosyn,        :

             Relator,                       :

v.                                          :                    No. 18AP-595

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

             Respondents.                   :


                         MAGISTRATE'S DECISION

                            Rendered on September 24, 2019


             Grubb & Associates, LPA, Natalie F. Grubb, and Mark E.
             Owens, for relator.

             Dave Yost, Attorney General, and Natalie J. Tackett, for
             respondent Industrial Commission of Ohio.

             Roetzel & Andress Co. LPA, and Morris L. Hawk, for
             respondent Samaritan Care Center.


                                    IN MANDAMUS

      {¶ 5} Relator, Angela M. Wolosyn, has filed this original action requesting this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which awarded her a 6 percent permanent partial
disability ("PPD") award relying on the report of David Garcia, D.O., and ordering the
commission to redetermine the matter after excluding Dr. Garcia's report from evidentiary
consideration.
No. 18AP-595                                                                              4


Findings of Fact:
       {¶ 6} 1. On November 29, 2016, relator sustained a work-related injury while
employed as a State Tested Nurse Aide for respondent Samaritan Care Center
("Samaritan"). Relator was helping a resident to the bathroom when she complained of
pain in her lower back.
       {¶ 7} 2. That evening, relator reported to the emergency room complaining of
"sharp stabbing pain in her left lumbar region [which was] radiat[ing] to the other side of
the back." Relator indicated she had "no pain radiating down her leg" and while she had a
previous thoracic back injury, she had no previous lumbar injuries. Relator was diagnosed
with "acute lumbosacral strain" and she was told to stay off work for two days.
       {¶ 8} 3. Relator was seen by David Goff, D.O., on December 1, 2016. Relator
described the initial pain as sharp and stabbing and noted that it had been decreasing in
intensity.   Relator denied numbness, tingling, weakness, radicular symptoms, or
bowel/bladder dysfunction, and indicated her pain ranged from a two out of ten with rest
to a seven out of ten with any type of physical activity. Dr. Goff restricted relator to light
duty and diagnosed her with a lumbosacral strain.
       {¶ 9} 4. Relator returned to Dr. Goff on December 6, 2016. At that time, relator
indicated she had a 30 to 40 percent improvement, but continued to have moderate
discomfort, especially with any type of bending.         Dr. Goff completed a C-9 form
recommending 12 physical therapy sessions which were approved.
       {¶ 10} 5. Relator returned to the emergency room on January 3, 2017 indicating
that two days earlier her pain intensified and was now constant, sharp, and stabbing. She
indicated her pain level was a ten out of ten and she had no Vicodin left.
       {¶ 11} 6. Relator was diagnosed with "acute exacerbation of a chronic lumbar
strain."
       {¶ 12} 10. Relator saw Dr. Goff the next day, January 4, 2017. Relator told Dr. Goff
her pain was improving, but she experienced some pain while performing twisting activities
at work while trying to feed two residents that were on each side of her. Relator rated her
pain at a four out of ten on January 4, described it as a sharp pain to her mid low back that
extends from her low back into her upper buttock bilaterally. Dr. Goff continued to
No. 18AP-595                                                                               5


diagnose her as suffering from a lumbosacral strain and indicated he would submit a C-9
for an MRI of the lumbar spine.
           {¶ 13} 11. The MRI was performed on January 11, 2017, and was essentially
negative.
           {¶ 14} 12. Relator returned to Dr. Goff on January 31, 2017. At that time, she
reported that her pain was a one out of ten, that she has been attending her physical therapy
regularly, and she denied any "numbness, tingling, weakness, radicular symptoms, or
bowel or bladder dysfunction." At that time, relator informed Dr. Goff that she had been
let go from her job. Dr. Goff released her to return to work with restrictions and to see him
again if she had any additional problems.
           {¶ 15} 13. On July 31, 2017, relator completed a C-92 application for determination
of percentage of PPD in the 2016 claim. In the section where she was asked to describe her
disability, relator stated: "Strain of muscle, fascia and tendon thoracic thru sacral reg. Hard
to stand for long periods of time and cannot lift without pain."1
           {¶ 16} 14. The Ohio Bureau of Workers' Compensation ("BWC") scheduled an
evaluation with Dr. Garcia to take place in August 2017.
           {¶ 17} 15. At some point, relator returned to work with a different employer,
Synergy Home Care. Relator completed a First Report of an Injury, Occupational Disease
or Death ("FROI-1") indicating that, on August 11, 2017, she was assisting family members
who were helping a client to stand when she noticed pain in her lower back. She was seen
at the Summa Center for Corporate Health and was diagnosed with a lumbar strain.
           {¶ 18} 16. Relator was seen by Linda F. Morway, M.D., following the new injury on
August 11, 2017. Relator presented with "left-sided paralumbar pain after lifting a patient
this morning"; she denied "any bowel or bladder dysfunction" and denied "any radiation
down her leg." Relator reported that she "has had prior back injuries." Dr. Morway
diagnosed relator with a lumbar strain and noted that she has had this before. Dr. Morway
released relator to return to work with restrictions which included no bending, pushing,
pulling, or lifting greater than ten pounds. Relator's August 11, 2017 injury would ultimately
be allowed against a different employer, Synergy Home Care.



1   This is the first reference in the medical records to any thoracic pain.
No. 18AP-595                                                                            6


       {¶ 19} 17. Before she was examined by Dr. Garcia, relator submitted an FROI-1
concerning the August 11, 2017 injury sustained with her new employer.
       {¶ 20} 18. Dr. Garcia examined relator on August 30, 2017. At that time, relator
informed him she had been injured while helping a resident to the bathroom. Relator
denied any prior injuries to her back and did not inform Dr. Garcia that she had recently
sustained a new injury to her back while working for a different employer. Relator
described her pain as slight, occasional, and that the activities of daily living which were
limited by her injury included sitting and bending.
              Dr. Garcia provided the following physical findings on examination:
              Examination of the thoracic region reveals no evidence of
              spinal listing. A normal kyphotic curvature is noted. No
              scarring is present. No change in skin temperature is noted.
              No swelling is noted. No tenderness is present with palpation
              to the region. No guarding or spasms are present. Sensation is
              intact. No radiculopathy is present. Range of motion reveals
              flexion to 60 degrees. Left rotation to 40 degrees. Right
              rotation to 40 degrees.

              Examination reveals muscle strength of the upper extremities
              to be intact. Examination fails to reveal atrophy in arms,
              bilaterally. Sensory and motor are intact. Reflexes are intact.

              Examination of the low back reveals no evidence of spinal
              listing. A normal lordotic curvature is noted. No scarring is
              present. The skin appears to be normal in color. No swelling
              is noted. No change in skin temperature is noted. Tenderness
              is present with palpation to the paraspinals bilaterally. No
              guarding or spasms are present. Radiculopathy is present; the
              injured worker complains of intermittent symptoms in the left
              lower extremity. Straight leg raise is negative. The injured
              worker offers no complaints in regard to bowel or bladder
              function. Range of motion of the lumbar region reveals:
              flexion equal to 60 degrees, extension equal to 10 degrees, left
              lateral bend equal to 15 degrees and right lateral bend equal
              to 15 degrees.

              Examination reveals muscle strength of the lower extremities
              to be intact. Examination fails to reveal atrophy in the thigh
              or calf, bilaterally. Sensation is intact. Reflexes are intact. Toe
              standing and heel standing are intact. Gait is undisturbed.
              Stance and balance are stable.
No. 18AP-595                                                                         7


             Thereafter, Dr. Garcia provided the following impairment evaluation:
             For the condition(s) STRAIN OF MUSCLE, FASCIA AND
             TENDON THORACIC THRU SACRAL REG (Chapter 15,
             Page 373 to 431); Impairment of the thoracic spine based on
             the DRE Model: DRE Thoracic Spine Category II, 5% WPI
             (pg. 389, table 15-4).

             Impairment of the lumbar spine based on the DRE Model:
             DRE Lumbar Spine Category II, 5% WPI (pg. 384, table 15-3).
             The impairment rating is apportioned to 0% Whole Person
             Impairment for this claim as the loss of range of motion and
             abnormal physical findings are not related to the allowed
             condition. The allowed conditions should have resolved by
             now.

             CONCLUSION:
             Utilizing the Combined Values Chart on Page 604, the total
             equals: (5% WPI + 0% WPI) or 5% Whole Person Impairment.

             Today's findings correlate to a total 5% Whole Person
             Impairment for this claim.

(Emphasis sic.)

      {¶ 21} 19. Because relator had now sustained a second injury, Dr. Garcia was asked
to provide an addendum report. In that report, dated December 8, 2017, Dr. Garcia
explained the reasons for his addendum:
             It has been brought to my attention there is medical
             documentation in the file that was not available during my
             exam. It has been provided to me. In addition, please note the
             injured worked [sic] had an intervening injury and has not
             worked for the employer of records since January 2017.
             Furthermore, the injured worker has another claim 17-180387
             with a date of injury 8/11/2017. I have been asked to opine
             whether this changes my opinion rendered on 8/30/2017.

             The following impairment evaluation has been revised from
             my original report dated 7/26/2017 to address the added
             medical information.

             Based on the new information provide my original
             impairment remains unchanged. Claim #17-180387 is
             allowed for STRAIN OF MUSCLE, FASCIA AND TENDON OF
             LOWER BACK. The 2016 claim was for a thoracic through
             sacral region. In my report, I apportioned the lumbar portion
No. 18AP-595                                                                               8


              of my exam to 0% WPI based on the abnormal findings being
              unrelated to the 2016 injury. However, the 2017 claim does
              not include the thoracic ragion [sic]; therefore, I can only
              conclude the findings would be related to the 2016 injury.

(Emphasis sic.)

       {¶ 22} Dr. Garcia noted that his findings did not change.
       {¶ 23} 20. Relator submitted the December 14, 2017 report of Dr. James O'Reilly,
Chiropractic Physician. Dr. O'Reilly diagnosed relator with thoraco-sacral strain and noted
that the pain in relator's back travels into her left lower extremity. Thereafter, Dr. O'Reilly
provided his physical findings upon examination and determined that relator had a 14
percent whole person impairment.
       {¶ 24} 21. The matter was heard before a district hearing officer ("DHO") on
February 22, 2018. The DHO relied on the reports of Drs. Garcia and O'Reilly and
determined that relator had a 6 percent PPD.
       {¶ 25} 22. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on April 10, 2018. The SHO affirmed the prior DHO order, relied on the reports
of Drs. Garcia and O'Reilly, and found a 6 percent PPD.
       {¶ 26} 23. Relator's request for reconsideration was denied by order of the
commission mailed May 17, 2018.
       {¶ 27} 24. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 28} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 29} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
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).
       {¶ 30} 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
No. 18AP-595                                                                             9


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).
       {¶ 31} As an initial matter, it is understood the commission does not abuse its
discretion in adopting the percentage of disability that falls within the range suggested by
two doctors. See for example, State ex rel. Romero v. River City Drywall Supply, Inc., 143
Ohio St.3d 65, 2015-Ohio-1194, ¶ 19.
       {¶ 32} Relator's entire argument focuses on her assertion that the report of Dr.
Garcia does not constitute some evidence upon which the commission could properly rely
to determine the percentage of her PPD award. Relator challenges the fact that, after
determining that relator had a 5 percent lumbar whole person impairment, he then
determined that, because that condition should have resolved, there was no residual
impairment.     Relator also challenges Dr. Garcia's report because he discussed
radiculopathy when there is no mention of radiculopathy in the record.
       {¶ 33} As noted in the findings of fact, relator did not tell Dr. Garcia that she had
sustained a second work-related injury to her back while employed with a different
employer. Likewise, relator did not tell Dr. O'Reilly that she had sustained a second injury
to her back. As the commission notes, a review of the medical evidence establishes that
relator did discuss radiculopathy. When Dr. Garcia examined her on August 30, 2017, he
noted in his physical findings that "[r]adiculopathy is present; the injured worker
complains of intermittent symptoms in the left lower extremity." Further, when she was
examined by Dr. O'Reilly, she complained that "pain from her back travels into the left
lower extremity." So, to the extent that relator challenges Dr. Garcia's report because he
discusses radiculopathy, it is she who discussed radiculopathy during her visits with the
doctor.
No. 18AP-595                                                                          10


      {¶ 34} Regarding Dr. Garcia's comment that relator's lumbar strain should have
resolved, the magistrate notes that the MRI was essentially negative. Relator cites no
medical evidence and no legal precedence that precludes a doctor from opining that a nine-
month old muscle strain ought not to have resolved and causes no impairment.
      {¶ 35} The real problem is that relator failed to notify either Drs. Goff or O'Reilly
that she had an intervening injury. When she did so, Dr. Garcia opined that his opinion did
not change: her pain was not related to the 2016 claim. Relator has not demonstrated the
commission abused its discretion by considering Dr. Garcia's report. Having failed to do
so, the commission was left with two reports and did not abuse its discretion when it
awarded her a percentage of PPD based upon a number in between the numbers reported
by the physician.
      {¶ 36} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated the commission abused its discretion and this court should deny her request
for a writ of mandamus.

                                             /S/ MAGISTRATE
                                             STEPHANIE BISCA




                             NOTICE TO THE PARTIES

             Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
             error on appeal the court's adoption of any factual finding or
             legal conclusion, whether or not specifically designated as a
             finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
             unless the party timely and specifically objects to that factual
             finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
