[Cite as State ex rel. Barnett v. Comm., 2014-Ohio-311.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

[State of Ohio ex rel.]                                    :
Michelle Barnett,
                                                           :
                 Relator,
                                                           :           No. 13AP-161
v.
                                                           :        (REGULAR CALENDAR)
The Industrial Commission
of Ohio and Aspen Nursing                                  :
Services, Inc.,
                                                           :
                 Respondents.
                                                           :


                                          D E C I S I O N

                                     Rendered on January 30, 2014


                 Cox, Koltak, and Gibson, LLP, and Peter J. Gibson, for
                 relator.

                 Michael DeWine, Attorney General, and Sandra E.
                 Pinkerton, for respondent The Industrial Commission of
                 Ohio.


                                   IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, J.
                         {¶ 1}    Relator, Michelle Barnett, 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
                terminating temporary total disability ("TTD") compensation effective
                August 1, 2012 based upon a finding that the industrial injury has reached
                maximum medical improvement ("MMI"). Relator asks us to order the
                commission to enter an order reinstating TTD compensation.
No. 13AP-161                                                                          2

                 {¶ 2}   Pursuant to Civ.R. 53(D) and Loc.R. 13(M) of the Tenth
          District Court of Appeals, this matter was referred to a magistrate who
          issued a decision, including findings of fact and conclusions of law, which is
          appended hereto. The magistrate recommends that this court grant the
          request for a writ of mandamus. The commission objects.
                 {¶ 3}   The commission presents two objections to the magistrate's
          decisions: first, that the magistrate erred in finding that the commission
          relied "exclusively" on Garcia's report; and second, that, by making this
          mistake, the magistrate incorrectly found Dr. Garcia's report was
          "premature."    Generally, relator argues that the magistrate failed to
          acknowledge that the staff hearing officer ("SHO") considered Dr. Garcia's
          report in light of the subsequent treatment records that showed no
          functional improvement, and, in so doing, the magistrate failed to consider
          whether the evidence taken as a whole was some evidence on which the
          commission could base its decision. The commission argues its order was
          based on some evidence as the SHO considered not only Dr. Garcia's report
          but also subsequent treatment reports. We will discuss the two objections
          together.
                 {¶ 4}   The magistrate determined that Dr. Garcia's report does not
          provide some evidence upon which the commission could rely to support its
          finding that relator had reached MMI. Relying on State ex rel Sellards v.
          Indus. Comm., 108 Ohio St.3d 306, 2006-Ohio-1058, the magistrate
          reasoned that Dr. Garcia's April 27, 2012 report was premature, given the
          commission granted Dr. Altic's C-9 request for a course of treatment
          approximately one month after Dr. Garcia's report was issued.
                 {¶ 5}   The commission argues that the magistrate's reliance on
          Sellards is misplaced and notes that, in Sellards, the commission's approval
          of treatment was contemporaneous with its termination of TTD.             The
          commission further argues the fact that Dr. Garcia was aware of the
          proposed treatment at the time he opined that MMI had been reached,
          coupled with the fact that the SHO considered subsequent treatment reports
No. 13AP-161                                                                         3

          and concluded there was no functional improvement, distinguishes this case
          from Sellards.
                    {¶ 6}   We find the magistrate did not err. First, the SHO did not
          state that it relied on the subsequent treatment reports in making it's
          determination that TTD should be terminated. Second, even if we were to
          construe the SHO's reference to the subsequent treatment reports to be a
          statement of reliance, the reports themselves do not contain a medical
          opinion that MMI had been reached. In other words, the SHO assessed the
          reports and offered his own opinion that MMI had been reached even with
          the subsequent treatments, upon which he apparently subsequently relied.
                    {¶ 7}   The SHO stated in his order that he had "reviewed the
          treatment notes on file regarding the approved physical medicine and trigger
          point injections the Injured Worker underwent and finds that the notes do
          not adequately support the contention that either course of treatment
          resulted in objective evidence of functional improvement in the allowed
          conditions." He thus concluded "the Staff Hearing Officer finds that Dr.
          Garcia's report remains probative on the maximum medical improvement
          issue."     (Sept. 27, 2012 SHO order, 2.) In reviewing the subsequent
          treatment reports, the SHO apparently inferred that the treatment was not
          working and that relator had indeed reached MMI. Neither the commission
          nor this court has medical expertise. State ex rel. Cleveland Browns Football
          Co., L.L.C. v. Indus. Comm., 10th Dist. No. 10AP-564, 2011-Ohio-5656,
          ¶ 51, citing State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 81 Ohio
          St.3d 56 (1998). The commission, in effect, invites this court to read the
          subsequent treatment reports as supporting an opinion that the industrial
          injury is at MMI, even though the reports contain no such opinion. This
          court must decline the invitation. Furthermore, we disagree that Dr. Garcia's
          opinion that relator had reached MMI was premised on his assessment of
          subsequent treatment. Obviously, Dr. Garcia did not have these records
          available to him at the time of his April 27, 2012 opinion. Furthermore,
          although he was aware of the proposed treatment, he was under the
No. 13AP-161                                                                          4

          impression that such treatment had been denied. Additionally, Dr. Garcia
          was not asked to provide an addendum after the treatment was commenced.
                 {¶ 8}   "The commission is free to accept or reject medical opinions
          of record in determining disability. However, it cannot fashion its own
          medical opinion from the findings contained in the medical reports such as
          might be done by a non-examining physician who is asked by the
          commission to review the medical evidence of record." State ex rel.
          Valentine v. Indus. Comm., 10th Dist. No. 02AP-579, 2003-Ohio-1784,
          ¶ 105. See State ex rel. Wallace v. Indus. Comm, 57 Ohio St.2d 55, 59
          (1979) (The non-examining physician is required to expressly accept all the
          findings of the examining physician but not the opinion drawn therefrom.).
           State ex rel. Blue v. Indus. Comm., 79 Ohio St.3d 466 (1997). Here, the
          SHO reviewed the subsequent treatment reports and fashioned his own
          medical opinion.     The fashioning of such an opinion, to bolster the
          premature opinion of Dr. Garcia, was not proper. Therefore, we overrule the
          commission's objections.
                 {¶ 9}   Upon review of the magistrate's decision, an independent
          review of the record, and due consideration of the commission's objections,
          we find the magistrate has properly determined the pertinent facts and
          applied the appropriate law.      We therefore overrule the commission's
          objections to the magistrate's decision and adopt the magistrate's decision as
          our own, including the findings of fact and conclusions of law contained
          therein.
                 {¶ 10} Accordingly, the requested writ of mandamus is hereby
          granted, and the commission is ordered to vacate the September 27, 2012
          order of its SHO that terminated TTD compensation, and to enter an order
          reinstating TTD compensation.
                                                   Objections overruled; writ granted.
                     SADLER, P.J., and McCORMAC, J., concur.
           McCORMAC, J., retired, of the Tenth Appellate District,
           assigned to active duty under the authority of the Ohio
           Constitution, Article IV, Section 6(C).
No. 13AP-161                   5


               _____________
No. 13AP-161                                                                            6

                                     APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

[State of Ohio ex rel.]                      :
Michelle Barnett,
                                             :
              Relator,
                                             :                    No. 13AP-161
v.
                                             :              (REGULAR CALENDAR)
The Industrial Commission
of Ohio and Aspen Nursing                    :
Services, Inc.,
                                             :
              Respondents.
                                             :



                          MAGISTRATE'S DECISION

                              Rendered on August 28, 2013


              Cox, Koltak, and Gibson, LLP, and Peter J. Gibson, for
              relator.

              Michael DeWine, Attorney General, and Sandra E.
              Pinkerton, for respondent The Industrial Commission of
              Ohio.


                                     IN MANDAMUS

                     {¶ 11} In this original action, relator, Michelle Barnett, requests a
              writ of mandamus ordering respondent Industrial Commission of Ohio
              ("commission") to vacate its order terminating temporary total disability
              ("TTD") compensation effective August 1, 2012 based upon a finding that the
              industrial injury has reached maximum medical improvement ("MMI"), and
              to enter an order reinstating TTD compensation.
No. 13AP-161                                                                           7

Findings of Fact:
                    {¶ 12} 1. On July 19, 2010, relator injured her neck, back, shoulders
             and arms while employed as a "caregiver" for respondent Aspen Nursing
             Services, Inc., a state-fund employer. The injury occurred when relator was
             lifting a client/resident from a bathtub.
                    {¶ 13} 2. The industrial claim (No. 10-339188) is allowed for:
             Cervical sprain/strain; lumbar sprain/strain; thoracic
             sprain/strain; bilateral shoulder sprains; cervical disc
             protrusion at C4-5, C5-6, C6-7, and C7-T1; left cervical
             radiculopathy.

                    {¶ 14} 3. The Ohio Bureau of Workers' Compensation ("bureau")
             began payments of TTD compensation based upon C-84 reports from
             treating physician Stephen Altic, D.O.
                    {¶ 15} 4. The record contains a C-84 dated March 27, 2012 on which
             Dr. Altic certified TTD from March 22, 2012 to an estimated return-to-work
             date of June 22, 2012 based upon a March 22, 2012 examination. On the C-
             84, Dr. Altic wrote: "See Narrative from 3/22/12."
                    {¶ 16} 5. On March 27, 2012, Dr. Altic completed two C-9 requests
             for medical treatment.       Between the two C-9s, Dr. Altic requested
             authorization for the following:
             [Three] Pain management consultation.
             [Four] Course of physical medicine to the cervical and
             lumbar spine three times weekly times six weeks employing
             ultrasound, massage, hot packs, ice packs, electrical
             stimulation, and therapeutic exercises for range of motion
             and strengthening, as well as home exercise instruction.

             ***

             [Five] Concomitant with physical medicine treatments,
             series of trigger point injections to the cervical spine three
             times weekly times six weeks employing [L]idocaine or
             Marcaine and sterile saline.
             [Six] Consultation with pain management specialist.
             [Seven] Consultation with registered and licensed dietician
             Gregory Avellana at Grandview Family Practice.
No. 13AP-161                                                                           8

                 {¶ 17} 6. On March 29, 2012, the managed care organization
          ("MCO") denied all of Dr. Altic's requests except "pain management consult
          x 1 cervical spine only."
                 {¶ 18} 7. On April 20, 2012, the bureau mailed an order denying the
          March 27, 2012 C-9s of Dr. Altic.
                 {¶ 19} 8. Relator administratively appealed the April 20, 2012
          bureau order.
                 {¶ 20} 9. Following a May 31, 2012 hearing, a district hearing officer
          ("DHO") issued an order that vacates the bureau's April 20, 2012 order and
          grants the March 27, 2012 requests of Dr. Altic. The DHO's order explains:
           The District Hearing officer notes that the pain management
           consultation was authorized by the managed care
           organization for the cervical spine. The disputed issues are
           the physical medicine to the cervical and lumbar spines with
           concomitant trigger point injections to the cervical spine and
           a consultation with a dietician.

           The District Hearing Officer notes that the Injured Worker
           was authorized to undergo cervical fusion surgery with Dr.
           White and the Injured Worker has deferred the surgery to
           lose weight to increase her chances of a successful surgery.
           Dr. White agrees with this plan of action. The medical
           records on file do document an over 50 pound weight gain
           since the date of injury. The urgent care record from
           7/20/2010 noted her weight at 285 pounds and the most
           recent note from Dr. Altic indicates 343 pounds.

           The District Hearing Officer orders that the following
           treatment be authorized and paid within Bureau of Workers'
           Compensation rules and regulations: physical medicine to
           the cervical spine with concomitant trigger point injections
           three times a week for six weeks; physical medicine to the
           lumbar spine three times a week for six weeks; and a
           consultation with a dietician. This order is based on the
           3/26/2012 report from Dr. Altic and the 2/3/2012 report
           from Dr. White. The District Hearing Officer finds that this
           evidence sufficiently supports that this treatment is
           medically reasonable and necessary treatment for the
           allowed conditions.
No. 13AP-161                                                                          9

                 {¶ 21} 10. The     DHO's     order   of   May    31,   2012   was   not
          administratively appealed. Thus, the order is a final commission order.
                 {¶ 22} 11. Earlier, on April 26, 2012, at the bureau's request, relator
          was examined by David A. Garcia, D.O. In his five-page narrative report
          dated April 27, 2012, under the heading "History of Present Illness," Dr.
          Garcia states:
           She followed up with Dr. White on February 3, 2012, who
           stated she was approved for a cervical fusion at C5-C6 and
           C6-C7, but he wanted to hold off on surgery at this time as
           she had increased her weight which would put her at risk for
           nonunion. He recommended a referral to Pain Management
           for at least a trial of cervical epidural steroid injections. She
           followed up with her physician of record, Dr. Altic, on
           March 26, 2012, who recommended a pain management
           consultation PT, trigger point injections and following up
           with a dietitian to help her lose weight. She stated the pain
           management consultation, PT, trigger point injections and a
           followup for a consultation with a dietitian were all denied.
           She stated on the flip side, she could have continuation of
           her pain medications. There are no other treatment therapies
           or treatment regimens being performed.

                 {¶ 23} Dr. Garcia's report concludes with his answers to six questions
          posed by the bureau:
           Question 1: In your medical opinion has the injured worker
           reached a treatment plateau that is static or well stabilized,
           at which no fundamental, functional or physiological change
           can be expected within reasonable medical probability in
           spite of continuing medical or rehabilitation procedures
           (maximum medical improvement)? Please explain.

           Answer: The injured worker had been told to hold off on
           surgical intervention until she can lose weight. There are no
           other interventions planned at this time. The most recent C9
           for PT, trigger point injections, pain management
           consultation was also denied; therefore for the current
           treatment regimen, she has reached a treatment plateau.
           When she does reach her weight goal, MMI can be re-
           evaluated for her to move forward with surgery, but with the
           current treatment regimen, she has reached MMI.
No. 13AP-161                                                                 10

           Question 2: Can the injured worker return to his/her former
           position of employment? If yes, are there any restrictions or
           modifications?

           Answer: In my medical opinion, the injured worker cannot
           return to her former position of employment as a caregiver
           due to her conditions.

           Question 3: Please provide a summary of any functional
           limitations solely due to the allowed physical condition(s) in
           this claim(s). In other words, please indicate the type of work
           the injured worker can perform and the supportive rationale
           for this opinion.

           Answer: The functional limitations are outlined on the
           attached DEP Physician's Report of Work Ability. The
           injured work is able to lift up to 10 pounds occasionally but
           otherwise no heavier lifting. She can sit continuously. She
           can bend, twist, turn, reach below the knees, push, pull,
           stand and walk frequently. She can squat, kneel and lift
           above the shoulders occasionally.

           Question 4: has the injury/disease reached maximum
           medical    improvement?      If  not,  are   there any
           recommendations for vocational rehabilitation and when
           should a re-examination be considered?

           Answer: Yes. The injured worker has reached MMI with the
           current treatment regimen. Again, MMI can be reconsidered
           if she has lost the weight and can proceed with surgery.

           Question 5: Is the current treatment necessary and
           appropriate for the medical condition(s)?

           Answer: The current treatment of muscle relaxants and anti-
           inflammatories is necessary and appropriate.

           Question 6: What are the recommendations for any
           proposed plan of treatment including the expected length of
           treatment and results?

           Answer: I recommend continuation of weight loss to move
           forward with the planned surgical intervention.

           The above analysis is based upon the available information
           at this time including the history given by the injured
No. 13AP-161                                                                        11

           worker, the medical records and tests provided and the
           physical findings.

                 {¶ 24} 12. On June 20, 2012, nearly two months after Dr. Garica
          issued his report, the bureau moved to terminate TTD compensation based
          upon Dr. Garcia's April 26, 2010 report. In that regard, the bureau issued a
          referral notice to relator:
           The Ohio Bureau of Workers' Compensation (BWC) is
           referring this claim to the Industrial Commission of Ohio
           (IC) for consideration of the administrator's request that the
           temporary total compensation be terminated due to the
           injured worker reaching maximum medical improvement.

           This recommendation is based on:

           4/27/2012 IME by Dr. Garcia that finds that the IW has
           reached a level of MMI with her physical conditions. The IW
           has been allowed for surgery, which is on hold until she can
           lose weight, to increase her chance of a successful recovery.
           He also find that she can return to modified duty work.

           The administrator asks that this IW be found at MMI for her
           work related conditions.

                 {¶ 25} 14. Following an August 1, 2012 hearing, a DHO issued an
          order granting the bureau's June 20, 2012 motion.         The DHO's order
          explains:
           The Bureau of Workers' Compensation's request to
           terminate payment of temporary total disability
           compensation in this claim is granted. The District Hearing
           Officer finds that the Injured Worker has reached maximum
           medical improvement (as defined in Ohio Administrative
           Code Section 4121-3-32) for the allowed conditions in this
           claim. Ongoing temporary total disability compensation is
           hereby ordered to be paid only through the date of today's
           hearing. Any temporary total disability compensation paid
           after the date of today's hearing is hereby ordered to be
           recouped pursuant to the non-fraud provisions of Ohio
           Revised Code Section 4123.511(K).

           This order is based on Dr. Garcia's 04/27/2012 report. The
           District Hearing Officer also notes that, due to the Injured
           Worker's weight, the Injured Worker's surgery has been
No. 13AP-161                                                                      12

           postponed (to an undetermined future date, if not
           indefinitely) and the Injured Worker at this time is simply
           undergoing conservative treatment.

                 {¶ 26} 14. Relator administratively appealed the DHO's order of
          August 1, 2012.
                 {¶ 27} 15. Following a September 27, 2012 hearing, a staff hearing
          officer ("SHO") issued an order stating that the DHO's order is "modified."
          The SHO's order explains:
           It is the order of the Staff Hearing Officer that the Bureau of
           Workers' Compensation's Motion filed 06/20/2012 is
           granted to the extent of this order.

           The Staff Hearing Officer affirms the finding that the allowed
           conditions of the claim have reached maximum medical
           improvement, as defined in Ohio Adm. Code 4121-3-32(A)
           (1), based on the report from Dr. Garcia dated 04/02/2012
           [sic] persuasively so indicating. As such, the Staff Hearing
           Officer finds that in his order dated 08/01/2012, the District
           Hearing Officer properly terminated the payment of
           temporary total disability compensation effective the date of
           his hearing, based on the maximum medical improvement
           finding and the decision in State ex rel. Russell v. Indus.
           Comm., 83 Ohio St.3d 516, 696 N.E.2d 1069 (1998).

           It is true that subsequent to the date of Dr. Garcia's
           examination of the Injured Worker, requests for a course of
           physical medicine, trigger point injections, and a
           consultation with a dietician have been approved, the latter
           with the purpose of assisting the Injured Worker in losing
           weight prior to her recommended surgery. The Injured
           Worker testified that as of today's date, the consultation with
           a dietician has not yet taken place. The Staff Hearing Officer
           reviewed the treatment notes on file regarding the approved
           physical medicine and trigger point injections the Injured
           Worker underwent and finds that the notes do not
           adequately support the contention that either course of
           treatment resulted in objective evidence of functional
           improvement in the allowed conditions. As such, the Staff
           Hearing Officer finds that Dr. Garcia's report remains
           probative on the maximum medical improvement issue.
No. 13AP-161                                                                               13

                   {¶ 28} 16. On October 25, 2012, another SHO mailed an order
            refusing relator's administrative appeal from the SHO's order of September
            27, 2012.
                   {¶ 29} 17. On February 28, 2013, relator, Michelle Barnett, filed this
            mandamus action.
Conclusions of Law:
                   {¶ 30} The issue is whether the April 27, 2012 report of Dr. Garcia,
            upon which the commission exclusively relied, provides some evidence to
            support its finding that the industrial injury is at MMI.
                   {¶ 31} Finding that Dr. Garcia's report does not provide some
            evidence upon which the commission can rely to support its finding that the
            industrial injury is at MMI, it is the magistrate's decision that this court issue
            a writ of mandamus, as more fully explained below.
                   {¶ 32} Here, the parties argue State ex rel. Sellards v. Indus. Comm.,
            108 Ohio St.3d 306, 2006-Ohio-1058. Relator argues that Sellards supports
            the issuance of a writ of mandamus. The commission argues to the contrary.
                   {¶ 33} In Sellards, the commission relied upon the report of
            psychiatrist Dr. Allen B. Levy to support its finding that the psychiatric
            condition of William E. Sellards, Jr. ("Sellards") had reached MMI. The
            Sellards court found that Dr. Levy's report was premature and thus did not
            provide some evidence supporting the commission's decision to terminate
            TTD compensation on MMI grounds.
                   {¶ 34} In Sellards, treating psychiatrist, J.T. Spare, submitted a C-9
            treatment plan on October 17, 2002. The commission approved the plan on
            October 22, 2002.
                   {¶ 35} Coincidentally, also on October 22, 2002, Sellards was
            examined by Dr. Levy. After the examination and a thorough review of the
            medical records (which did not include Dr. Spare's treatment plan), Dr. Levy
            concluded that the psychiatric condition had reached MMI.
                   {¶ 36} Also, Dr. Spare wrote on November 26, 2002 that his
            treatment of Sellards had been negatively impacted by Sellards' inability to
No. 13AP-161                                                                          14

          get his prescriptions filled at the pharmacy he goes to. Later, on December
          24, 2002, the bureau admitted that an error had occurred regarding
          prescription payment and, as of that date, had been corrected.
                 {¶ 37} The Sellards court held that Dr. Levy's MMI opinion "was
          premature based on the commission's contemporaneous approval of Dr.
          Spare's treatment program." Sellards at ¶ 20.
                 {¶ 38} Turning to the instant case, as of the date of Dr. Garcia's April
          27, 2012 report, the MCO had denied the course of treatment set forth in Dr.
          Altic's C-9s with the exception of a "[p]ain management consult x 1 cervical
          spine only." Also, as of the date of Dr. Garcia's report, the administrator had
          issued an order on April 20, 2012 that upheld the MCO denials. In his
          report, Dr. Garcia acknowledges the status of Dr. Altic's C-9s by stating that
          relator stated that the C-9 requests "were all denied." (Actually, Dr. Garcia's
          acknowledgment of the status of Dr. Altic's C-9s was incorrect, in part,
          because the MCO had authorized a pain management consult for the cervical
          spine only.)
                 {¶ 39} About one month after Dr. Garcia issued his report, the status
          of Dr. Altic's recommended course of treatment dramatically changed
          because the DHO's order of May 31, 2012 granted Dr. Altic's C-9 request for
          a course of treatment.
                 {¶ 40} Despite that Dr. Garcia believed at the time of his report that
          the C-9 requests had been denied and that no course of treatment was in
          place, the commission relied upon Dr. Garcia's report to support an MMI
          finding and termination of TTD compensation.
                 {¶ 41} Given this scenario, the issue here is whether, as a matter of
          law, Dr. Garcia's April 27, 2012 report is premature and thus not probative
          on the issue of MMI. If Dr. Garcia's report is premature, it cannot constitute
          some evidence to support the commission's determination of TTD
          compensation.
No. 13AP-161                                                                         15

                 {¶ 42} In his April 27, 2012 report, Dr. Garcia states that, other than
          the continuation of her pain medications, "[t]here are no other treatment
          therapies or treatment regimens being performed."
                 {¶ 43} In his April 27, 2012 report, in answer to question one, Dr.
          Garcia notes that relator has been told to delay surgery until she loses
          weight. Based on his understanding that Dr. Altic's treatment regimen has
          been denied, Dr. Garcia opines: "but with the current treatment regimen,
          she has reached MMI."
                 {¶ 44} In his April 27, 2012 report, in answer to question four, Dr.
          Garcia opines:   "[t]he injured worker has reached MMI with the current
          treatment regimen."
                 {¶ 45} In his April 27, 2012 report, Dr. Garcia repeatedly makes clear
          that his MMI opinion is premised, at least in part, upon the absence of an
          approved course of treatment and particularly the denial of Dr. Altic's
          proposed treatment plan.
                 {¶ 46} Significantly, Dr. Altic's March 27, 2012 C-9 treatment plan
          predates the bureau's request that relator be examined by Dr. Garcia. It
          appears that Dr. Garcia's examination of relator was prompted by Dr. Altic's
          C-9 request. Had the examination been delayed about one month until Dr.
          Altic's C-9 request had been finally resolved, Dr. Garcia would presumably
          have had the correct information regarding the final status of Dr. Altic's
          treatment plan. But the bureau apparently chose to pursue Dr. Garcia's
          examination of relator prior to a final administrative decision on Dr. Altic's
          C-9 request. Moreover, the bureau did not request an addendum from Dr.
          Garcia following the May 31, 2012 DHO's order.
                 {¶ 47} In Sellards, unaware the commission had approved Dr.
          Spare's treatment plan as of the date of his examination, Dr. Levy's
          conclusion that the psychiatric condition had reached MMI was held to be
          premature. Here, while Dr. Garcia was aware that Dr. Altic had requested
          approval of a treatment plan, his belief that the plan had been denied
          ultimately proved to be wrong.
No. 13AP-161                                                                           16

                 {¶ 48} Based upon the above analysis, the magistrate finds that
          Sellards supports the conclusion that Dr. Garcia's report was premature and
          thus fails to provide some evidence upon which the commission can rely.
                 {¶ 49} Accordingly, it is the magistrate's decision that this court issue
          a writ of mandamus ordering the commission to vacate the September 27,
          2012 order of its SHO that terminated TTD compensation, and to enter an
          order reinstating TTD compensation.


                                       /S/ MAGISTRATE
                                       KENNETH W. MACKE


                          NOTICE TO THE PARTIES

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