[Cite as State ex rel. Medina v. Indus. Comm., 2016-Ohio-173.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Angelica Medina,                         :

                 Relator,                              :

v.                                                     :               No. 15AP-29

The Industrial Commission of Ohio                      :           (REGULAR CALENDAR)
and Normandy II Limited Partnership,
                                                       :
                 Respondents.
                                                       :


                                              DECISION

                                    Rendered on January 19, 2016


                 Wincek & DeRosa Co., LPA, Daryl Gagliardi and
                 Christopher G. Wincek, for relator.

                 Michael DeWine, Attorney General, and Eric J. Tarbox, for
                 respondent Industrial Commission of Ohio.

                 Deborah Sesek, for respondent Normandy II Limited
                 Partnership.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
HORTON, J.
        {¶ 1} Relator, Angelica Medina, brings this original action seeking a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order denying her temporary total disability ("TTD") compensation, and to order the
commission to enter an order awarding her TTD compensation.
        {¶ 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. As reflected in the facts given in the
magistrate's decision, Medina was working as a charge nurse for respondent Normandy II
Limited Partnership, dba Normandy Manor of Rocky River ("Normandy"), on
No. 15AP-29                                                                             2

June 18, 2013, when she reported slipping on a substance and falling.        Following a
hearing before a district hearing officer ("DHO") on December 17, 2013, Medina's claim
was allowed for sprain/strain right jaw.
       {¶ 3} After the incident, Medina was treated by a medical doctor and several
dentists. On February 24, 2014, Medina changed physician of record to Todd S.
Hochman, M.D. Dr. Hochman completed Medco-14 forms indicating that Medina was
temporarily not released to any work, first from February 20 to May 31, 2014 and then
from May 30 through September 10, 2014. Dr. Hochman submitted two additional
Medco-14 forms certifying TTD through February 28, 2015.
       {¶ 4} A physician review was conducted by Duke M. Rakich, DDS, and a
subsequent report was prepared. Based on Dr. Rakich's report, in an order mailed
May 9, 2014, the administrator for the Ohio Bureau of Workers' Compensation ("BWC")
granted Medina's request for TTD compensation beginning February 20, 2014.
       {¶ 5} In addition, Medina was examined by Kevin Trangle, M.D., on
July 29, 2014. In his August 4, 2014 report, Dr. Trangle discussed the medical records
which he reviewed, his physical findings upon examination, and concluded that Medina's
allowed condition had reached maximum medical improvement ("MMI"), and that she
could return to her former position of employment. However, Dr. Trangle's report does
not offer an opinion as to whether or not Medina was temporarily and totally disabled on
the claimed date of February 20, 2014.
       {¶ 6} Normandy appealed the BWC's granting of Medina's request for TTD and
the matter was heard before a DHO on August 28, 2014. As a result, the order of the
administrator was vacated and the DHO denied Medina's request for TTD compensation
finding that Medina's evidence did not support the conclusion that the current period of
disability was related to the allowed condition, i.e., the sprain/strain of the right jaw.
Medina's appeal was heard before a staff hearing officer ("SHO") on November 24, 2014.
The SHO, likewise, denied the requested period of TTD compensation based on the
medical report of Dr. Trangle. Further appeal was refused by order of the commission
mailed December 13, 2014.
       {¶ 7} Thereafter, Medina filed the instant mandamus action in this court. Medina
argues that the evidence relied upon by the commission to deny her application for TTD
No. 15AP-29                                                                           3

compensation does not constitute "some evidence," and this court should grant a writ of
mandamus ordering the commission to award her TTD compensation.
      {¶ 8} The magistrate has now rendered a decision and recommendation that
includes findings of fact and conclusions of law and is appended to this decision. The
magistrate concluded that:
              Dr. Trangle's report does not constitute some evidence upon
              which the commission could rely to deny her request for TTD
              compensation. Dr. Trangle failed to specifically discuss or
              identify the relevant time period for which she requested TTD
              compensation. Although Dr. Trangle's report constitutes some
              evidence relator reached MMI as of July 29, 2014, his report
              never addressed whether or not she was temporarily disabled
              beginning February 20, 201[4].

              Relator asks this court to order the commission to award her
              TTD compensation based on Dr. Hochman's report. However,
              the DHO had found that relator's evidence was insufficient to
              support an award of TTD compensation. The commission
              should have the opportunity to re-evaluate the issue without
              considering Dr. Trangle's report.

              Based on the forgoing, it is this magistrate's decision that
              relator has demonstrated that the commission abused its
              discretion by relying on the report of Dr. Trangle and this
              court should grant relator a writ of mandamus ordering the
              commission to re-evaluate whether or not she is entitled to an
              award of TTD compensation beginning February 20, 201[4].

(Magistrate's Decision, Appendix at ¶ 46-48.)
Normandy has filed objections to the magistrate's decision, and the matter is now before
us for our independent review.
      {¶ 9} Normandy filed the following objections to the magistrate's decision:
              [I.] The Magistrate applied the wrong legal standard to the
              order under review.

              [II.] The Magistrate erred in concluding that Dr. Trangle's
              report does not constitute some evidence upon which
              Respondent Commission could rely upon to deny Relator's
              request for temporary total disability compensation.
No. 15AP-29                                                                                4

              [III.] The Magistrate erred by returning the matter to
              Respondent Commission to re-evaluate the issue without
              considering Dr. Trangle's report.

              [IV.] Having determined that Dr. Trangle did not specifically
              address whether Respondent was temporarily and totally
              disabled beginning February 20, 2014, the Magistrate erred
              by not limiting the Commission's re-evaluation to the period
              from February 20, 2014 through July 29, 2014.

       {¶ 10} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the
objected matters "to ascertain that the magistrate has properly determined the factual
issues and appropriately applied the law." A relator seeking a writ of mandamus must
establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon
respondent to perform the act requested, and (3) that relator has no plain and adequate
remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police &
Firemen's Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting
State ex rel. Consol. Rail Corp. v. Gorman, 70 Ohio St. 2d 274, 275 (1982);
State ex rel. Fitzgerald v. Bd. of Trustees of Ohio Police & Fire Pension Fund, 10th Dist.
No. 14AP-968, 2015-Ohio-5079, ¶ 7. "A clear legal right exists where the [commission]
abuses its discretion by entering an order which is not supported by 'some evidence.' " Id.
       {¶ 11} 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); State ex rel.
Barnett v. Indus. Comm. of Ohio, 10th Dist. No. 14AP-628, 2015-Ohio-3898, ¶ 9. 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., 65 Ohio St.3d 30, 33 (1992).
       {¶ 12} Normandy argues that "the Magistrate applied the wrong legal standard to
the order under review" because "the Magistrate treated the order under review as one
that terminated an ongoing award of TTD." (Normandy's Objections, 5-6.) While the
standard for terminating TTD was stated in the magistrate's decision, it is not the basis for
the recommendation of granting the writ. Our review of the magistrate's decision makes it
clear that the magistrate addressed the correct legal issue: whether there is some evidence
No. 15AP-29                                                                              5

in the record to support the commission's finding. The last line of the magistrate's
decision orders the commission, on remand, to "re-evaluate whether or not [Medina] is
entitled to an award of TTD compensation beginning February 20, 201[4]." We find that
the magistrate did not use the wrong legal standard and, therefore, Normandy's first
objection is overruled.
       {¶ 13} Normandy argues that the report of Dr. Trangle was "some evidence" upon
which the commission could rely to deny TTD beginning February 20, 2014. In its very
first sentence under this objection, Normandy admits that Dr. Trangle offered no opinion
"relat[ing] back to February 20, 2014." (Normandy's Objections, 8.) Indeed, Dr. Trangle
never stated that he believed Medina could return to work in February 2014. Normandy is
urging this court to speculate that Dr. Trangle believed that Medina could return to work
in February 2014.
       {¶ 14} Speculation about what Dr. Trangle believed is not evidence upon which the
commission could rely. "[I]t is equally clear that the commission must have some medical
evidence upon which to base those facts." State ex rel. Steinbrunner v. Indus. Comm.,
10th Dist. No. 05AP-626, 2006-Ohio-3444, ¶ 22. The commission lacks medical expertise
and may not adjudicate medical matters without the necessary medical evidence. State ex
rel. Tracy v. Indus. Comm., 10th Dist. No. 07AP-88, 2007-Ohio-5792, ¶ 4. We find no
error in the magistrate's determination that "Dr. Trangle's report does not constitute
some evidence upon which the commission could rely to deny her request for TTD
compensation" for the time period commencing on February 20, 2014. Normandy's
second objection is overruled.
       {¶ 15} Normandy argues that "[r]eturning the matter to the Commission with
instructions to ignore Dr. Trangle's report is at least inconsistent with the magistrate's
determination that his MMI finding constitutes some evidence barring TTD from the date
of his July 29, 2014 examination forward." (Normandy's Objections, 15.) We note that the
magistrate did find that "Dr. Trangle's report constitutes some evidence relator reached
MMI as of July 29, 2014." Therefore, in order to clarify our instructions on remand, we
modify the magistrate's decision to the extent that the commission can use Dr. Trangle's
report, if it becomes relevant, as to when, if at all, Medina reached MMI. Accordingly, the
third objection is overruled with the above modification.
No. 15AP-29                                                                             6

      {¶ 16} Normandy argues that the "Magistrate erred by not limiting the
Commission's re-evaluation to the period from February 20, 2014 through July 29, 2014."
(Normandy's Objections, 16.) In other words, Normandy is requesting that this court hold
that Medina reached MMI as of the date of Dr. Trangle's report. We note that "the
commission is in the best position to determine the weight and credibility of the evidence
and disputed facts." Woolum. In addition, "[t]he commission alone shall be responsible
for the evaluation of the weight and credibility of the evidence before it." State ex rel.
Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987). In light of the above and our
adoption of the magistrate's decision, including the remand instruction "ordering the
commission to re-evaluate whether or not [Medina] is entitled to an award of TTD
compensation beginning February 20, 201[4]," we decline to limit the commission's fact
finding role. Therefore, Normandy's fourth objection is overruled.
      {¶ 17} Following our independent review, pursuant to Civ.R. 53, we find that the
magistrate correctly determined that the order of the commission must be vacated
because it is not supported by some evidence. The magistrate correctly explained that the
commission could not rely on the report of Dr. Trangle because it does not address the
relevant period of TTD. We find the magistrate has properly determined the pertinent
facts and applied the salient law to them. Accordingly, the objections to the magistrate's
decision are overruled and we adopt the magistrate's decision as our own, including the
findings of fact and conclusions of law contained therein, with the modification that the
commission can use Dr. Trangle's report as some evidence that, if it becomes relevant,
Medina reached MMI as of July 29, 2014 or later. In accordance with the magistrate's
decision, we grant the request for a writ of mandamus as modified.
                                         Objections overruled; writ granted as modified.


                           BROWN and SADLER, JJ., concur.
                              _________________
No. 15AP-29                                                                              7

                                    APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State ex rel. Angelica Medina,               :

              Relator,                       :

v.                                           :                    No. 15AP-29

The Industrial Commission of Ohio            :               (REGULAR CALENDAR)
and Normandy II Limited Partnership,
                                             :
              Respondents.
                                             :




                         MAGISTRATE'S DECISION

                                 Rendered on July 22, 2015



              Wincek & DeRosa Co., LPA, Daryl Gagliardi and
              Christopher G. Wincek, for relator.

              Michael DeWine, Attorney General, and Eric J. Tarbox, for
              respondent Industrial Commission of Ohio.

              Deborah Sesek, for respondent Normandy II Limited
              Partnership.


                                     IN MANDAMUS
       {¶ 18} Relator, Angelica Medina, 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 denied her application for temporary total
disability ("TTD") compensation, and ordering the commission to find that she is entitled
to that compensation.
No. 15AP-29                                                                              8

Findings of Fact:
        {¶ 19} 1. Relator was working as a charge nurse for respondent, Normandy II
Partnership dba Normandy Manor of Rocky River ("Normandy"), on June 18, 2013, when
she reported slipping on an unidentified substance and falling.
        {¶ 20} 2. Relator first sought treatment with her primary care physician Maria S.
L. Neri Nixon, M.D., on July 8, 2013. At that time, relator complained of pain in her right
jaw as well as pain in her right hand and right knee. Her main concern was the jaw pain
along with headaches and occasional blurred vision she had been experiencing since the
fall.   Dr. Nixon diagnosed relator with jaw pain, right hand pain, right knee pain,
headache, recommended that she get an x-ray of her knee, consult to orthopedics, and to
dentistry.
        {¶ 21} 3. Relator was examined by John E. Buzzelli, DDS, on July 11, 2013. In a
letter dated September 9, 2013, Dr. Buzzelli stated:
              That day's clinical exam revealed pain in the right temporal
              mandibular joint (TMJ) upon opening and closing pressure
              on cotton rolls. Palpation of the right TMJ was especially
              tender at the head of the condyle upon opening. Angelica was
              also aware of an audible "popping" sound in the right TMJ
              upon opening.

              Although, these findings are all consistent with hard and soft
              tissue trauma resulting from a fall like Angelica described, I
              did advise her to see an oral surgeon and have him take an
              extra oral panographic x-ray to examine in more detail the
              mandible and TMJ to rule out the possibility of a fracture.
              We provided her with several referrals to area oral surgeons.

        {¶ 22} 4. Dale A. Baur, DDS, referred relator for a CT scan to rule out condylar
fracture of the mandible. The CT scan revealed the following:
              CT the paranasal sinuses and facial bones is unremarkable.
              There is no evidence of fractures. Specifically, the mandible
              and temporomandibular joints are unremarkable. There is
              slight deformity of the right mandibular condyle compatible
              with temporal mandibular joint arthropathy. Diagnostic
              interpretation was performed on the Campus of Case
              Western Reserve University.

        {¶ 23} Dr. Baur further recommended that relator avoid heavy lifting and
strenuous activities, and that she and Normandy agree to a light-duty assignment.
No. 15AP-29                                                                          9

       {¶ 24} 5. On August 27, 2013, Dr. Baur discussed treatment options with relator,
noting the following:
              [Patient] in for [follow up] discussion about surgery options
              regarding her right sided TMJ degeneration 2/2 trauma,
              discussed total joint replacement vs arthrocentesis and
              steroid injection. After discussion, [patient] decided to start
              with arthrocentesis and go from there if necessary same
              surgical date 9/12/13.

       {¶ 25} 6. Maximillian Beushausen, DMD, took relator off work until after her
outpatient oral procedure.
       {¶ 26} 7. Relator never underwent the recommended surgery for her jaw.
       {¶ 27} 8. Following a hearing before a district hearing officer ("DHO") on
December 17, 2013, relator's claim was allowed for sprain/strain right jaw.
       {¶ 28} 9. Normandy appealed the claim allowance; however, following a hearing
before a staff hearing officer ("SHO"), the order of the DHO was affirmed.
       {¶ 29} 10. On February 24, 2014, relator changed physicians of record to Todd S.
Hochman, M.D.
       {¶ 30} 11. After a follow up visit on April 4, 2014, Dr. Hochman stated:
              The patient was working for Normandy Manor of Rocky
              River as a registered nurse when she was injured. * * * She
              landed on her right side. She reports that she struck her right
              lower extremity, her right knee, and her jaw. She could not
              get up from the floor because she was dizzy. She had pain
              throughout the right hand and right knee and a headache.
              She was having difficulty with her jaw. She developed
              blurred vision and headaches. She has difficulty chewing and
              felt like there was clicking and the jaw was making a
              "sandpaper" sound. * * * The patient was sent to Dr. Dale
              Baur at Case Western Reserve University/University
              Hospitals. A CT scan was completed. Reportedly, there was
              concern for fracture. I was able to review the notes. I was
              able to review the CT scan report. Dr. Baur did document a
              condylar fracture but I did not see that commented on the
              CT scan. The patient is still having problems. The claim has
              been recognized for the right jaw sprain/strain (848.1). I will
              submit the C-9 to get her back in to see Dr. Baur.

              ***
No. 15AP-29                                                                            10

              The patient is still having difficulty. Claim No. 13-836245 has
              been recognized for the right jaw sprain/strain (848.1). I will
              submit the C-9 to get the patient back in to see Dr. Baur. I
              am going to see if I can get a copy of the medical records
              from Dr. Hritz at Orthopedic Associates. She is out of work.
              The date of disability is good through May 31, 2014. She will
              return in 1 month.

      {¶ 31} 12. Dr. Hochman completed Medco-14 forms indicating that relator was
temporarily not released to any work, first from February 20 to May 31, 2014 and then
from May 30 through September 10, 2014.
      {¶ 32} 13. Relator was examined by Kevin Trangle, M.D., on July 29, 2014. In his
August 4, 2014 report, Dr. Trangle identified and discussed the medical records which he
reviewed, provided his physical findings upon examination, concluded that relator's
allowed condition had reached maximum medical improvement ("MMI"), and that she
could return to her former position of employment. In relevant part, Dr. Trangle stated:
              Currently, her complaints are quite expansive. She states she
              has jaw pain, dizziness and headache. She cannot
              concentrate. She has trouble walking because of her
              unsteadiness. She complains of right hand pain and inability
              to grip, lift objects or twist or turn with her right hand. She
              states her right knee locks on her and gives away on her. She
              has not fallen, but she has to stop and almost has fallen. She
              has to stop occasionally also to unlock her knee. She
              complains of generalized weakness and fatigue and inability
              to concentrate.

              ***

              She has full range of motion of her jaw with no obvious
              clicking or dislocations. She does complain of some
              discomfort when she opens her mouth.

              ***

              Based upon the allowed claim of jaw sprain and strain, this
              individual clearly has reached the point of Maximum
              Medical Improvement [MMI]. She may have some
              discomfort in her right jaw when she opens and closes her
              mouth and that would be the extent of the jaw sprain and
              strain.
No. 15AP-29                                                                        11

              Her complaints, however, part of the reason she states she is
              not working, are way more extensive than that. They consist
              of ongoing intermittent headaches, inability to concentrate,
              dizziness, unsteadiness in her gait, fatigue and lack of
              endurance, as well as cognitive dysfunction. None of these
              could be attributed to a jaw sprain or strain.

              Based upon the allowed claim, she can return to her usual
              job and her usual activities as a charge nurse. There is no
              reason that she cannot do it based upon a jaw sprain and
              strain. Even if her ongoing problems with the jaw are
              present, this is not an area that would be affected by lifting,
              twisting, turning or doing any of the physical activities that
              may be required as a charge nurse.

              There is no point in having her follow up with Dr. Bauer
              [sic]. She is not interested in having a mandibulectomy
              performed by Dr. Bauer [sic] and at most, she would want a
              second opinion from a different oral surgeon on the best
              approach in terms of her jaw. Clearly, she does not want to
              see Dr. Bauer [sic] in therapy and have surgery as
              recommended.

      {¶ 33} 14. Following Dr. Trangle's examination, Dr. Hochman submitted two
additional Medco-14s certifying TTD through February 28, 2015.
      {¶ 34} 15. A physician review was performed by Duke M. Rakich, DDS, and, in his
report dated May 6, 2014, Dr. Rakich noted:
              I have reviewed and accepted the allowed conditions in this
              claim, it does appear that there is a direct correlation
              between the requested period of disability and is related to
              the allowed worker's compensation injury. Dale A. Baur,
              D.D.S. stated in his letter dated August 16, 2013, that the
              injured worker "should avoid heavy lifting and strenuous
              activities until advised otherwise." There is no
              documentation for review that states that the [Injured
              Worker] has gone through therapy and has been released
              from Dr. Baur's recommendations. Therefore, with the
              documentation provided for review, there is support for the
              requested period of disability from 8-14-13 to 5-13-14 and is
              related to the injured worker's 6-18-13 allowed worker's
              compensation injury. If I can be of any further assistance,
              please contact me at my office.
No. 15AP-29                                                                              12

       {¶ 35} 16. In an order mailed May 9, 2014, the administrator for the Ohio Bureau
of Workers' Compensation ("BWC") granted relator's request for TTD compensation
beginning February 20, 2014 based upon Dr. Rakich's report.
       {¶ 36} 17. Normandy appealed and the matter was heard before a DHO on August
28, 2014. The order of the administrator was vacated and the DHO denied relator's
request for TTD compensation finding that relator's evidence did not support the
conclusion that the current period of disability was related to the allowed condition in the
claim. Specifically, the DHO stated:
              This claim is allowed for a Jaw Sprain/Strain that occurred
              on 06/18/2013. The Injured Worker was scheduled for
              surgery in 2013 for jaw issues and conditions (s) [sic] that
              are not allowed in this claim. To date, surgery has not been
              performed. The medical records support a conclusion that
              the ongoing symptoms that the Injured Worker has been
              experiencing are not [d]ue to a Jaw Sprain/Strain. Therefore,
              the evidence does not support a conclusion that the
              requested dentist follow up and a recent and current period
              of disability are due to the allowed condition in this claim.

              This order is based upon the medical records in the claim file
              from Dr. Beushausen dated 08/27/2013, from Dr. Baur
              dated 08/16/2013 and 08/27/2013, the CT scan dated
              08/16/2014, and Dr. Trangle dated 08/04/2014.

       {¶ 37} 18. Relator's appeal was heard before an SHO on November 24, 2014. The
SHO, likewise, denied the requested period of TTD compensation based on the medical
report of Dr. Trangle. Specifically, the SHO stated:
              The Staff Hearing Officer denies temporary total
              compensation from 02/20/2014 through 08/28/2014
              relying on the report and opinion of Kevin Trangle, M.D.
              dated 08/04/2014 and the review of the medical evidence on
              file.

              The Staff Hearing Officer approves the C-9 from Todd
              Hochman, M.D. dated 04/04/2014. This C-9 requests a
              dental follow-up with Dale Bauer [sic], DDS. It is noted that
              there is no medical evidence to indicate that the allowed jaw
              sprain/strain has resolved in this claim. Dr. Trangle
              indicates that the Injured Worker should not go back to Dr.
              Bauer [sic] because the Injured Worker does not want to go
              back to Dr. Bauer [sic]. However, the Injured Worker
No. 15AP-29                                                                                13

              seemed to indicate at this hearing that she wants to follow up
              with Dr. Bauer [sic], as requested by the treating physician.

       {¶ 38} 19. Further appeal was refused by order of the commission mailed
December 13, 2014.
       {¶ 39} 20. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 40} Relator argues that the evidence relied upon by the commission to deny her
application for TTD compensation does not constitute some evidence and this court
should grant a writ of mandamus ordering the commission to award her TTD
compensation.
       {¶ 41} 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).
       {¶ 42} 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).
       {¶ 43} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's
No. 15AP-29                                                                                  14

treating physician has made a written statement that claimant is able to return to the
former position of employment; (3) when work within the physical capabilities of
claimant is made available by the employer or another employer; or (4) claimant has
reached MMI. See R.C. 4123.56(A) ; State ex rel. Ramirez v. Indus. Comm., 69 Ohio
St.2d 630 (1982).
       {¶ 44} In denying her application for TTD compensation, the commission
specifically relied on the August 4, 2014 report of Dr. Trangle. Relator asserts that Dr.
Trangle's report does not constitute some evidence upon which the commission could rely
because "Dr. Trangle did not offer an opinion whether Mrs. Medina was temporarily and
totally disabled as to any time period before he examined Mrs. Medina in August, 2014."
(Relator's brief, 14.)
       {¶ 45} At the outset of his report, Dr. Trangle indicated that he was being asked to
determine treatment, the extent of impairment, return to work status, and temporary
total impairment. Dr. Trangle specifically discussed the medical records documenting
relator's treatment since the date of injury as well as her current complaints, and
concluded that her allowed condition had reached MMI.                 Dr. Trangle provided his
physical findings upon examination and concluded that relator's current complaints,
including    ongoing     intermittent   headaches,   inability   to    concentrate,   dizziness,
unsteadiness in gait, fatigue, lack of endurance, and cognitive dysfunction could not be
attributed to the allowed condition of jaw sprain/strain. Based solely on the allowed
condition in her claim, Dr. Trangle opined that relator could return to her usual job and
her usual activities as a charge nurse without restrictions.
       {¶ 46} The magistrate finds that Dr. Trangle's report does not constitute some
evidence upon which the commission could rely to deny her request for TTD
compensation. Dr. Trangle failed to specifically discuss or identify the relevant time
period for which she requested TTD compensation.               Although Dr. Trangle's report
constitutes some evidence relator reached MMI as of July 29, 2014, his report never
addressed whether or not she was temporarily disabled beginning February 20, 2015.
       {¶ 47} Relator asks this court to order the commission to award her TTD
compensation based on Dr. Hochman's report.           However, the DHO had found that
relator's evidence was insufficient to support an award of TTD compensation.                The
No. 15AP-29                                                                         15

commission should have the opportunity to re-evaluate the issue without considering Dr.
Trangle's report.
       {¶ 48} Based on the forgoing, it is this magistrate's decision that relator has
demonstrated that the commission abused its discretion by relying on the report of Dr.
Trangle and this court should grant relator a writ of mandamus ordering the commission
to re-evaluate whether or not she is entitled to an award of TTD compensation beginning
February 20, 2015.




                                              /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).
