[Cite as State ex rel. Cribbs v. Indus. Comm., 2019-Ohio-2883.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Brady C. Cribbs,               :

                 Relator,                            :

v.                                                   :              No.   17AP-661

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

                 Respondents.                        :



                                            D E C I S I O N

                                       Rendered on July 16, 2019


                 On brief: Plevin & Gallucci, Co., L.P.A., Frank L. Gallucci,
                 III; Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for
                 relator.

                 On brief: [Dave Yost], Attorney General, and John R. Smart,
                 for respondent Industrial Commission of Ohio.

                 On brief: Consolo Law Firm Co., LPA, and Frank Consolo,
                 for respondent City of Brooklyn.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BRUNNER, J.
        {¶ 1} Relator, Brady C. Cribbs, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate the August 29, 2017 order of its staff hearing officer ("SHO") and ordering the
commission to proceed with consideration of his claim. The SHO's order granted the
application of Cribbs' employer, respondent City of Brooklyn, to suspend further
consideration of Cribbs' claim under R.C. 4123.651. For the following reasons, we deny
Cribbs' request.
17AP-661                                                                                  2


       {¶ 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 a decision,
including findings of fact and conclusions of law, that is appended to our decision. The
magistrate found that Cribbs failed to demonstrate a clear legal right to have the suspension
of his claim lifted, given his failure to fully cooperate in the evaluation requested by his
employer. The magistrate also found that the commission did not abuse its discretion when
it suspended further consideration of Cribbs' claim under R.C. 4123.651. As a result, the
magistrate recommends we deny Cribbs' petition for a writ of mandamus.
       {¶ 3} Cribbs has filed objections to the magistrate's decision. Cribbs argues that
the commission's Medical Examination Manual ("manual") gives him the right to refuse
mental/behavioral testing by his employer's examining doctor. Cribbs posits that his
refusal constitutes good cause under R.C. 4123.651(C). Based solely on this alleged good
cause, Cribbs argues the commission cannot suspend his claim. We disagree.
       {¶ 4} The question before us is not whether Cribbs had the right to refuse
mental/behavioral testing. Rather, the question is whether his refusal to subject himself to
such testing by his employer's examining doctor constitutes good cause under R.C.
4123.651(C) so as to prevent his claim from being suspended. We conclude it does not.
       {¶ 5} As stated by the magistrate, the commission manual sets forth guidelines for
its medical examiners. The manual contains the express language that, "[t]his Manual
presents Commission policies for independent medical examinations and medical file
reviews." (App'x at ¶ 25.) The manual is not directed toward examinations performed by
an employer's doctor. An employer's right to have a claimant examined is set forth in R.C.
4123.651(A) and (C), which in pertinent part provide:
              (A) The employer of a claimant who is injured or disabled in
              the course of his employment may require, without the
              approval of the administrator or the industrial commission,
              that the claimant be examined by a physician of the employer's
              choice one time upon any issue asserted by the employee or a
              physician of the employee's choice or which is to be considered
              by the commission. * * *

              ***

              (C) If, without good cause, an employee refuses to submit to
              any examination scheduled under this section or refuses to
              release or execute a release for any medical information,
17AP-661                                                                                  3

              record, or report that is required to be released under this
              section and involves an issue pertinent to the condition alleged
              in the claim, his right to have his claim for compensation or
              benefits considered, if his claim is pending before the
              administrator, commission, or a district or staff hearing officer,
              or to receive any payment for compensation or benefits
              previously granted, is suspended during the period of refusal.

       {¶ 6} The commission manual argued by Cribbs has no effect on the employer's
right to have a claimant examined pursuant to R.C. 4123.651(A). Moreover, if a claimant's
refusal to submit to, or to fully participate in, an examination were to automatically
constitute good cause, R.C. 4123.651(C) would have no effect. We hold that Cribbs' reliance
on the manual as the basis for good cause under R.C. 4123.651(C) is in error.
       {¶ 7} Cribbs has provided no other argument for why he had good cause to refuse
mental/behavioral testing by his employer's doctor. Absent a showing of good cause,
suspension of the claim is required during the period of refusal. R.C. 4123.651(C). For these
reasons, we overrule Cribbs' objections.
       {¶ 8} Subsequent to the submission of this matter to the panel, respondent City of
Brooklyn filed a notice of supplemental authority. The commission timely filed a motion to
strike the notice of supplemental authority. We find that the supplemental authority that
was filed involved the commission’s authority under a section of law that is inapplicable to
this case. Therefore, we grant the commission’s motion to strike.
       {¶ 9} Based on our review of the magistrate's decision, our independent review of
the record, and due consideration of Cribbs' objections, we find the magistrate has properly
stated the pertinent facts and applied the appropriate law. We thus overrule Cribbs'
objections to the magistrate's decision and adopt the magistrate's decision as our own,
including the findings of facts and conclusions of law in that decision. Accordingly, Cribbs'
petition for a writ of mandamus is denied.
                                           Objections overruled; writ of mandamus denied;
                                                                  motion to strike granted.

                           BROWN and SADLER, JJ., concur.
17AP-661                                                                                 4

                                        APPENDIX

                         IN THE COURT OF APPEALS OF OHIO
                             TENTH APPELLATE DISTRICT


The State ex rel. Brady C. Cribbs,           :

              Relator,                       :

v.                                           :                     No. 17AP-661

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

              Respondents.                   :



                          MAGISTRATE'S DECISION

                               Rendered on March 21, 2018



              Plevin & Gallucci Co., L.P.A., Frank L. Gallucci, III; Paul W.
              Flowers Co., L.P.A., and Paul W. Flowers, for relator.

              Michael DeWine, Attorney General, and John Smart, for
              respondent Industrial Commission of Ohio.

              Consolo Law Firm Co., LPA,          and Frank Consolo, for
              respondent City of Brooklyn.


                                     IN MANDAMUS

       {¶ 10} Relator, Brady C. Cribbs, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order for the consideration of relator's claim and ordering the
commission to proceed.
17AP-661                                                                                  5


Findings of Fact:
       {¶ 11} 1. On October 8, 2015, while working as a firefighter/paramedic for his
employer city of Brooklyn ("city"), relator sustained a work-related injury and his claim was
originally allowed for the following physical conditions:
              Sprain of ligaments of thoracic spine; sprain of ligaments of
              lumbar spine; T6-T7 and T8-T9 disc herniation.

       {¶ 12} 2. In March 2017, relator filed a C-86 asking that his claim be additionally
allowed for certain psychological conditions:
              Now comes claimant, by and through counsel, and hereby
              requests that the allowance of the claim be amended to
              include Substantial Aggravation of Pre-existing Major
              Depressive Disorder, Single Episode and Substantial
              Aggravation of Pre-existing Anxiety Disorder based upon the
              medical diagnosis of James M. Medling, Ph.D.

              Claimant further requests that the Bureau of Workers'
              Compensation pay for the cost for the consultation
              examination conducted by James M. Medling, Ph.D. once the
              additional allowance has been included in the claim.

       {¶ 13} 3. Relator submitted the February 27, 2017 report of James A. Medling,
Ph.D., in support of his request. Dr. Medling interviewed relator and administered the
Personality Assessment Inventory test and ultimately concluded as follows:
              Diagnostically, he presents with Depressive Disorder NOS
              and Anxiety Disorder NOS.These diagnoses convert to Major
              Depressive Disorder, Single Episode, Unspecified (F32.9) and
              Anxiety Disorder Unspecified (F41.9). He became aware of
              mixed feelings of anxiety and depression following his 2010
              work injury. These feelings were at subclinical levels through
              his 2012 injury and at the time of his 2015 injury. These
              feelings were at subclinical levels through his 2012 injury and
              at the time of his 2015 injury. Since his 2015 injury, his mixed
              complaints of anxiety and depression have resulted in
              clinically significant levels of distress and now meet
              diagnostic criteria for diagnosable anxiety and depressive
              conditions. Thus, his Major Depressive Disorder, Single
              Episode, Unspecified and Anxiety Disorder Unspecified are a
              substantial aggravation of his 10/6/15 work injury.
              Psychological counseling is recommended. He may also
              benefit from a psychiatric evaluation to assess his need for
17AP-661                                                                                  6

              psychotropic medication. He can manage any monies
              awarded.

       {¶ 14} 4. The Ohio Bureau of Workers' Compensation ("BWC") granted relator's
application and the city appealed.
       {¶ 15} 5. In a letter dated May 26, 2017, relator was notified that the city's managed
care organization was scheduling him for an independent psychological examination with
Michael A. Murphy, Ph.D.
       {¶ 16} 6. The evaluation with Dr. Murphy took place on June 15, 2017. At the outset
of his report, Dr. Murphy noted that relator refused to participate in any psychological
testing:
              The Injured Worker was informed and understood that the
              results of this evaluation are not confidential. He signed a
              release of information and limits of confidentiality form. The
              Injured Worker was requested to complete the MCMI-III on
              multiple occasions but refused. He states, "My attorney told
              me not to (i.e. complete testing) as far as I know."

       {¶ 17} 7. Dr. Murphy identified the medical records reviewed, discussed his findings
on examination specifically noting childhood counseling, use of drugs and alcohol in
college, and increased use of alcohol following the 2015 injury.        With regard to his
conclusions, Dr. Murphy stated:
              This evaluation was undermined by the Injured Worker's
              attorney who advised not to complete testing. The Injured
              Worker refused testing. From this standpoint he was non-
              compliant. The Injured Worker reported suicidal ideation as
              an adolescent along with counseling. He also reported
              depression associated with his first back injury (2010). He
              reported anxiety for the last few years, but many unrelated
              medical factors are operative.

              I cannot substantiate the alleged conditions.

              No evidence of social or occupational impairment was
              established. The Injured Worker reported working 103.7
              hours every two weeks, currently. He was off early 2016, but
              for an unrelated left knee injury. The Injured Worker has
              many friends, travels extensively, plays golf, dines out and
              mows grass. The Injured Worker's cognitive functioning (i.e.
              memory and executive functions are fully intact.)
17AP-661                                                                                   7

              I cannot establish any evidence of acceleration of the alleged
              conditions given his lack of impairment and elevated level of
              activity.

              Some mild emotional distress would be present in the absence
              of this injury.

              ***

              The DSM-IV and V requires some form of impairment to
              substantiate the presence of a condition. I cannot objectively
              substantiate the factual basis that this injury aggravated the
              alleged DSM conditions.

              Also, note this Injured Worker reported problematic alcohol
              use. He does not operate a vehicle under the influence of
              Phenergan. The effects of alcohol and medication may mimic
              symptoms of both depression and anxiety.

              Some mild features of depression and anxiety would be
              present in the absence of this injury.

              ***

              This 10/08/2015 injury did not cause, substantially aggravate,
              or directly cause the alleged conditions.

       {¶ 18} 8. Following a hearing before a district hearing officer ("DHO"), relator's
claim was allowed for the psychological conditions requested. Specifically: "substantial
aggravation of pre-existing major depressive disorder, single episode; substantial
aggravation of pre-existing anxiety order."
       {¶ 19} 9. The city appealed and the matter was heard before a staff hearing officer
("SHO") on August 24, 2017. The SHO vacated the prior DHO order and suspended further
consideration of relator's claim due to his refusal to fully participate in the examination by
Dr. Murphy. Specifically, the SHO order provides:
              The activity in this claim regarding the requested additional
              psychological allowances is suspended pursuant to the
              provisions of R.C. 4123.651(C). The Employer scheduled a
              defense psychological evaluation on 06/15/2017 before
              Michael Murphy, Ph.D. and the Injured Worker did attend
              this examination. However, the Injured Worker refused to
              complete the psychological testing during his evaluation by
              Dr. Murphy, indicating he was refusing on the advice of
17AP-661                                                                                   8

              counsel. The Injured Worker appeared at the instant hearing
              and testified he was told by his attorney not to perform any
              written testing during his evaluation. Dr. Murphy indicated in
              his report dated 06/15/2017 the "evaluation was undermined"
              by the Injured Worker's failure to fully participate.

              This issue shall remain suspended until such time as the
              Injured Worker indicates, in writing, he will in fact appear for
              a defense psychological evaluation and will fully participate in
              this evaluation. After the new evaluation has been completed,
              the Injured Worker's C-86 Motion filed 03/21/2017 regarding
              the requested additional allowances is to be reset at the
              District Hearing Officer level.

       {¶ 20} 10. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 21} Relator asserts the commission abused its discretion when it suspended
further action on his claim.     For the reasons that follow, the magistrate finds the
commission did not abuse its discretion.
       {¶ 22} 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).
       {¶ 23} 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).
17AP-661                                                                                  9


       {¶ 24} The commission suspended relator's claim pursuant to R.C. 4123.651which
provides, in pertinent part, as follows:
              Medical examinations initiated by employer; release of
              medical information; sanction for employee's noncompliance.

              (A) The employer of a claimant who is injured or disabled in
              the course of his employment may require, without the
              approval of the administrator or the industrial commission,
              that the claimant be examined by a physician of the
              employer's choice one time upon any issue asserted by the
              employee * * *.

              ***

              (C) If, without good cause, an employee refuses to submit to
              any examination scheduled under this section or refuses to
              release or execute a release for any medical information,
              record, or report that is required to be released under this
              section and involves an issue pertinent to the condition
              alleged in the claim, his right to have his claim for
              compensation or benefits considered, if his claim is pending
              before the administrator, commission, or a district or staff
              hearing officer, or to receive any payment for compensation
              or benefits previously granted, is suspended during the period
              of refusal.

       {¶ 25} Here, the city referred relator for a psychological examination by Dr. Murphy.
While relator did attend that evaluation, he refused to participate fully in the examination.
       {¶ 26} In support of his argument that he had the right to decline mental and
behavioral testing, relator cites from the Industrial Commission's Medical Examination
Manual, effective January 1, 2017. The introduction for the manual provides the purpose of
the manual:
              This Manual presents Commission policies for independent
              medical examinations and medical file reviews. The purpose
              of the independent medical examination (IME) is to
              determine the degree of impairment resulting from an
              allowed work injury. Most examinations are to assist the
              Commission in the consideration of Permanent Total
              Disability (PTD). The first section of the manual explains
              administrative and examination policies common to all
              Commission independent examinations and file reviews. The
              remaining six sections of the manual describe specific
              examination requirements for evaluating various body parts,
17AP-661                                                                          10

           regions, or organ systems affected by an industrial injury or
           disease, and some special considerations related to maximum
           medical improvement.

           The manual also provides the following relevant administrative policies:
           Legal Status

           Examiners are independent contractors. Referral for medical
           review or examination represents a single fee-for-service
           commitment for the Commission and the examiner. The
           Commission requires examiners maintain professional
           liability insurance with $1 million per incident and $1 million
           annual aggregate.

           ***

           Impartiality

           Examinations are to be performed by physicians and
           psychologists with no bias or conflict of interest with respect
           to the Injured Worker, the employer, or the workers'
           compensation system.

           Examiners are excluded from performing specialist
           examinations when they have examined the Injured Worker
           or reviewed the claim file for the employer, the Injured
           Worker, the Bureau of Workers' Compensation or the
           Industrial Commission within three years of the filing date of
           an application for permanent total disability. Physicians and
           psychologists are also excluded from performing specialist
           examinations when they have a contractual relationship with
           the Injured Worker, employer, or their representative, or have
           been the physician of record for the Injured Worker.

           An examiner who does not meet the impartiality requirements
           will decline to examine the Injured Worker. The Injured
           Worker will then be rescheduled with an impartial examiner.

           Commission examinations are independent examinations. No
           authorization for treatment of the Injured Worker is implied
           or given in the Commission's request for examinations.

           Physicians or psychologists performing examinations for the
           commission may not communicate with the Injured Worker
           other than during the examination and may not accept the
           examined Injured Worker into treatment. Additionally, they
           may not communicate with the employer, the Bureau of
17AP-661                                                                                  11

              Workers' Compensation or representatives of the Injured
              Worker or employer.

       {¶ 27} As above noted in the quoted sections, the commission's medical
examination manual specifically pertains to medical and psychological examinations made
at the request of the commission. These are commission independent examinations and
file reviews, with a single fee-for-service commitment between the commission and the
examiner, and commission examinations are independent with no authorization for
treatment being implied or given in the request.
       {¶ 28} As previously noted, relator cites the following provision at page 71.
              MMPI and Bender-Gestaldt are considered part of a
              psychological examination and are not billable. Injured
              Workers may decline testing, and if this is the case, note the
              refusal and base opinions on the available data.

       {¶ 29} This cited portion specifically pertains to independent medical examinations
requested by the commission and does not address examinations made at the request of
the employer. As such, relator's reliance on this manual is misplaced.
       {¶ 30} When the commission suspended further processing of relator's claim, that
suspension was done in accordance with R.C. 4123.651which pertains to examinations
initiated by the employer, and further provides a sanction in the event the employee fails to
comply. As stated in subsection C, if, without good cause, an employee refuses to submit to
any examination scheduled under this section, his right to have his claim for compensation
or benefits considered, or to receive any payment for compensation or benefits previously
granted, is suspended during the period of the refusal. Because the manual provisions on
which relator relies do not pertain to his factual situation, relator did not show good cause
for his refusal to submit to Dr. Murphy's examination.
       {¶ 31} Clearly, the commission did not abuse its discretion when it suspended
further consideration of relator's claim. As such, this court should deny relator's request
for a writ of mandamus.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA
17AP-661                                                                        12




                           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).
