[Cite as State ex rel. Omni Manor, Inc. v. Indus. Comm., 2019-Ohio-2521.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


The State ex rel. Omni Manor, Inc.,                   :

                Relator,                              :

v.                                                    :                        No. 17AP-725

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

                Respondents.                          :



                                           D E C I S I O N

                                      Rendered on June 25, 2019


                On brief: Manchester Newman & Bennett, LPA, and
                Thomas F. Hull, for relator.

                 On brief: Dave Yost, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.

                On brief: Green Haines Sgambati, Co., LPA, and Shawn D.
                Scharf, for respondent Diana Garringer.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.
        {¶ 1} Relator, Omni Manor, Inc. ("Omni Manor"), filed this original action seeking
a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the
commission"), to vacate its order authorizing the surgery requested by respondent, Diana
Garringer ("claimant"), and ordering the commission to deny the request for the surgery.
        {¶ 2} This court referred the matter to a magistrate pursuant to Civ.R.53 and Loc.R.
13(M) of the Tenth District Court of Appeals. The magistrate rendered a decision that
includes findings of fact and conclusions of law. The magistrate's decision, which is
No. 17AP-725                                                                              2


appended hereto, recommends this court deny Omni Manor's request for a writ of
mandamus, leaving in place the commission's order granting claimant's request for a total
shoulder arthroplasty following her workplace injury to her shoulder rotator cuff. Omni
Manor filed objections to the magistrate's decision, and the matter is now before the court
for our independent review.
I. Objections to the Findings of Fact
       {¶ 3} Omni Manor sets forth three objections to the magistrate's findings of fact.
We address them each in turn.
       A. Finding of Fact No. 6
       {¶ 4} First, Omni Manor objects to Finding of Fact No. 6, arguing it
mischaracterizes the procedural posture of the case prior to Omni Manor initiating this
original action in mandamus. Though Omni Manor asserts it is challenging Finding of Fact
No. 6, it appears from the substance of its objection that Omni Manor is actually objecting
to Finding of Fact No. 6 and Finding of Fact No. 7, which state in their entirety:
               6. Relator's further administrative challenges were
               unsuccessful and claimant's claim remained additionally
               allowed for right shoulder rotator cuff tear.

               7. Relator pursued the matter in the common pleas court;
               however, relator was ultimately unsuccessful. As a result,
               claimant's claim continued to be allowed for right shoulder
               rotator cuff tear.

(App'x at ¶ 22, 23.)
       {¶ 5} We agree with Omni Manor that the magistrate's decision erroneously states
that Omni Manor pursued the matter in common pleas court. A review of the record
indicates Omni Manor did not pursue the matter in common pleas court pursuant to R.C.
4123.512. Accordingly, we sustain the portion of Omni Manor's objection related to the
reference to the procedural history in common pleas court.
       {¶ 6} However, Omni Manor additionally argues in this objection that the
magistrate incorrectly analyzed the facts of the prior history of this case and asserts this
finding of fact should contain a more complete explanation of the non-allowed conditions
and why Omni Manor sought in the administrative proceedings to press for further
distinction between the allowed and non-allowed conditions present in claimant's injured
No. 17AP-725                                                                               3


shoulder. This argument appears to be an attempt by Omni Manor to frame the factual
findings in order to force a different legal conclusion. Having reviewed the record, we find
no error in the magistrate's explanation of the procedural history of the matter, except for
the erroneous reference to filings in common pleas court. Thus, we sustain in part and
overrule in part this objection.
       B. Finding of Fact No. 8
       {¶ 7} In its next objection, Omni Manor argues the magistrate erred in Finding of
Fact. No. 8 when it failed to fully describe the C-9 and the report of David A. Tonnies, M.D.
Omni Manor asserts these documents contain errors and fail to fully analyze the allowed
conditions in reference to the non-allowed conditions. Again, this is an attempt by Omni
Manor to restate the facts in order to compel a different legal conclusion. The magistrate's
finding of fact is an accurate summary of Dr. Tonnies' C-9 and report. We overrule this
objection.
       C. Finding of Fact No. 10
       {¶ 8} In its third and final objection to the findings of fact, Omni Manor argues
Finding of Fact No. 10 does not point out alleged deficiencies in the SHO's order and does
not sufficiently emphasize that a total shoulder arthroplasty is not the usual or customary
treatment for a rotator cuff tear. As in its previous two objections, Omni Manor once again
attempts to reframe to the factual findings in order to force a different legal conclusion.
However, having reviewed the record, we find that the magistrate's Finding of Fact. No. 10
is an accurate summary and description of the SHO's order. We overrule Omni Manor's
third objection to the findings of fact.
II. Objections to Conclusions of Law
       {¶ 9} Omni Manor additionally objects to the magistrate's conclusions of law.
Omni Manor sets forth three objections asserting (1) Dr. Tonnies' report and C-9 do not
constitute "some evidence" sufficient to authorize the surgical procedure of total shoulder
arthroplasty; (2) the magistrate failed to sufficiently analyze why the total shoulder
arthroplasty was independently required to treat the allowed condition; and (3) the
magistrate erred in its ultimate legal conclusion that Omni Manor's writ of mandamus
should be denied. Taken together, these three objections reflect the same argument Omni
No. 17AP-725                                                                                  4


Manor has made throughout these proceedings: that the commission abused its discretion
in authorizing the total shoulder arthroplasty as treatment for claimant's rotator cuff tear.
       {¶ 10} As the magistrate noted, a relator seeking mandamus must demonstrate a
clear legal right to the relief sought and that the commission has a clear legal duty to provide
such relief. State ex rel. Gill v. School Emps. Retirement Sys. of Ohio, 121 Ohio St.3d 567,
2009-Ohio-1358, ¶ 18. 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. Elliot v. Indus. Comm., 26 Ohio St.3d
76 (1986).     However, where the evidence 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).
       {¶ 11} Omni Manor argues the commission abused its discretion in relying on
Dr. Tonnies' report and C-9 as "some evidence" to support authorizing the total shoulder
arthroplasty. Specifically, Omni Manor argues Dr. Tonnies' report and C-9 do not satisfy
the test outlined in State ex rel. Miller v. Indus. Comm., 71 Ohio St.3d 229 (1994). As the
magistrate notes, the three-pronged test set forth in Miller for the authorization of medical
services asks (1) are the medical services reasonably related to the industrial injury that is
the allowed condition?; (2) are the services reasonably necessary for treatment of the
allowed conditions?; and (3) is the cost of such service medically reasonable? Miller at 232.
       {¶ 12} Omni Manor asserts Dr. Tonnies' report is internally inconsistent and does
not sufficiently explain why a total shoulder arthroplasty is independently required for
claimant's rotator cuff tear. First, we do not agree with Omni Manor that Dr. Tonnies'
report is internally inconsistent. The report notes that claimant has a rotator cuff tear that
requires surgery. The report then notes that because claimant has underlying, degenerative
shoulder conditions, the normal surgical approach for a rotator cuff tear would be
unsuccessful. Therefore, Dr. Tonnies concludes the best surgical option to successfully
repair claimant's rotator cuff tear is a total shoulder arthroplasty. We agree with the
magistrate that the commission did not abuse its discretion in concluding that this report
and C-9 constitute "some evidence" to satisfy the Miller test.
       {¶ 13} Omni Manor further argues that Dr. Tonnies' report and C-9 fail to satisfy the
additional requirement that, when non-allowed conditions are involved, the requested
No. 17AP-725                                                                               5


treatment must be "independently required for an allowed condition." State ex rel. Griffith
v. Indus. Comm., 87 Ohio St.3d 154, 156 (1999). We disagree. Griffith specifically provides
that "the existence of a contributing nonallowed condition is not a legitimate reason for
refusing to pay for medical treatment independently required for an allowed condition."
Id. at 157. The report explains that the ordinary surgical approach to a rotator cuff tear
would be unsuccessful given the preexisting state of claimant's shoulder. Though it is true
claimant's underlying conditions altered what would be the normal surgical approach to
the treatment of a rotator cuff tear, Dr. Tonnies' report and C-9 adequately state that the
total shoulder arthroplasty remains the required treatment for the allowed condition in this
specific case. That the surgical procedure requested may ultimately provide relief to
claimant's underlying, non-allowed conditions does not render the surgical procedure any
less independently necessary to treat the allowed condition.        See State ex rel. HBD
Industries, Inc. v. Indus. Comm., 10th Dist. No. 02AP-825, 2003-Ohio-1449, ¶ 26-29.
       {¶ 14} Through this argument, Omni Manor attempts to impose a burden on the
commission to more fully explain why the total shoulder arthroplasty is independently
required to treat the rotator cuff tear. However, the commission is required to "specifically
state which evidence and only that evidence which has been relied upon to reach their
conclusion, and a brief explanation stating why the claimant is or is not entitled to the
benefits requested." (Emphasis omitted.) State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d
203, 204 (1991). The commission satisfied this burden in relying on Dr. Tonnies' report
and C-9. Thus, we agree with the magistrate that the commission did not abuse its
discretion in concluding Dr. Tonnies' report and C-9 constituted "some evidence" to
support the authorization of claimant's requested surgical procedure. For these reasons,
we overrule Omni Manor's objections to the magistrate's conclusions of law.
III. Disposition
       {¶ 15} Following our independent review of the record pursuant to Civ.R. 53, we find
the magistrate correctly determined that Omni Manor is not entitled to the requested writ
of mandamus. Though we sustain in part Omni Manor's first objection to the magistrate's
finding of fact related to any proceedings in common pleas court, that factual error does not
implicate the magistrate's legal conclusions, and we find the magistrate properly applied
the pertinent law to the salient facts. Accordingly, we adopt the magistrate's decision as
No. 17AP-725                                                                         6


our own, including the findings of fact as modified and conclusions of law contained
therein. We therefore sustain in part Omni Manor's first objection to the magistrate's
decision, overrule the remainder of Omni Manor's objections, and deny Omni Manor's
request for a writ of mandamus.
                                    Objections sustained in part and overruled in part;
                                                             writ of mandamus denied.

                     BRUNNER and BEATTY BLUNT, JJ., concur.
No. 17AP-725                                                                         7


                                        APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT



The State ex rel. Omni Manor, Inc.,        :

               Relator,                     :

v.                                          :                  No. 17AP-725

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

               Respondents.                :



                          MAGISTRATE'S DECISION

                              Rendered on October 30, 2018



               Manchester Newman & Bennett, LPA, and Thomas F. Hull,
               for relator.

               Michael DeWine, Attorney General, and Kevin J. Reis, for
               respondent Industrial Commission of Ohio.

               Green Haines Sgambati, Co., LPA, and Shawn D. Scharf, for
               respondent Diana Garringer.


                                      IN MANDAMUS

      {¶ 16} Relator, Omni Manor, Inc., has filed this original action requesting this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which authorized the surgery requested by respondent
Diana Garringer ("claimant") and ordering the commission to deny the request for
surgery.
No. 17AP-725                                                                         8


Findings of Fact:
      {¶ 17} 1. Claimant sustained a work-related injury on April 28, 2016 and her
workers' compensation claim was originally allowed for right shoulder sprain.
      {¶ 18} 2. An MRI taken May 27, 2016 revealed the following:
               ROTATOR CUFF:

               Full-thickness, full width medial retracted tears of
               supraspinatus and infraspinatus with medial retraction of the
               torn tendon stump to the level of the glenohumeral joint.
               There is superior migration of the humeral head with severe
               narrowing of the subacromial space. Glenohumeral joint fluid
               decompresses into the bursal space. High-grade partial-
               thickness subscapularis tear with nonvisualization of the
               biceps tendon, likely torn and retracted. Moderate to severe
               muscle atrophy most significantly involving supraspinatus.
               Teres minor intact.

               There is glenohumeral chondral thinning intermediate to
               high-grade involving the humeral articular surface. The
               glenoid articular cartilage is relatively maintained. No
               degenerative marrow edema. Inferior glenohumeral
               ligaments and axillar folds are intact. There is thickening and
               intermediate intrasubstance signal involving the humeral
               attachment of the axillary folds likely related to glenohumeral
               instability. No identifiable intra-articular loose body.

               Type II acromion. Moderate acromioclavicular degenerative
               changes with capsular hypertrophy and edema.
               Acromioclavicular and coracoclavicular ligaments are grossly
               intact.

      {¶ 19} 3. Claimant's treating physician David A. Tonnies, M.D., provided an
orthopedic comprehensive evaluation.        In his August 2, 2016 report, Dr. Tonnies
explained that claimant worked as a housekeeper at a nursing home. The injury occurred
when she was helping another employee pick up a heavy loveseat. Claimant explained
that she heard a pop in her shoulder and had immediate pain and discomfort. Dr. Tonnies
provided his physical findings on examination, reviewed the May 27, 2016 MRI, and
noted the following:
No. 17AP-725                                                                              9


                The MRI shows a massive rotator cuff tear of the right
                shoulder with retraction. There is evidence of muscle atrophy.
                There are no fractures.

                DIAGNOSTIC IMPRESSION:

                [One] Right shoulder rotator cuff tear.
                [Two] Right shoulder degenerative joint disease.
                [Three] Right shoulder rotator cuff arthropathy.

                Dr. Tonnies recommended the following treatment:
                The patient was shown her x-rays and her MRI; she was
                advised of her condition and treatment options were
                discussed. Conservative and surgical options were reviewed.
                The patient has a massive tear of the rotator cuff with
                retraction. The patient already has muscle atrophy. A primary
                repair of the rotator cuff is unlikely at this time secondary to
                the degree of involvement. Her best option would be that of a
                reverse total shoulder arthroplasty. The patient wants to think
                about her options before proceeding with any surgery. She
                will do home exercises at this time. She will call our office to
                set up a follow up appointment. If her symptoms intensify, she
                is to contact the office immediately.

         {¶ 20} 4. Based on the report of Dr. Tonnies and the MRI, claimant filed a motion
asking that her claim be additionally allowed for right shoulder rotator cuff tear.
         {¶ 21} 5. The matter was heard before a district hearing officer ("DHO") on
December 6, 2016. At that time, relator argued that the rotator cuff tear was degenerative,
age-related, and/or that it existed before the date of the work injury. The DHO disagreed
and, as a result, claimant's claim was additionally allowed for "right shoulder rotator cuff
tear."
         {¶ 22} 6.   Relator's further administrative challenges were unsuccessful and
claimant's claim remained additionally allowed for right shoulder rotator cuff tear.
         {¶ 23} 7. Relator pursued the matter in the common pleas court; however, relator
was ultimately unsuccessful. As a result, claimant's claim continued to be allowed for
right shoulder rotator cuff tear.
         {¶ 24} 8. On September 30, 2016, claimant filed a C-9 request for medical services
reimbursement asking the commission to authorize Dr. Tonnies to perform a reverse total
No. 17AP-725                                                                              10


arthroplasty for her right shoulder rotator cuff condition. As indicated in Dr. Tonnies'
August 2, 2016 report, Dr. Tonnies opined that, given the degenerative joint disease of
claimant's right shoulder, the typical surgical procedures utilized to correct a rotator cuff
tear would likely not be successful. For that reason, Dr. Tonnies opined her best option
was a reverse total shoulder arthroplasty.
       {¶ 25} 9.   An independent medical examination was performed by Oscar F.
Sterle, M.D. In his May 31, 2017 report, Dr. Sterle identified the allowed conditions in
claimant's claim, discussed the history of her injury as well as the medical documents
which he reviewed, and provided his physical findings on examination. Thereafter, Dr.
Sterle was asked whether the request for reverse total right shoulder arthroplasty was
medically necessary and appropriate to treat the allowed conditions in this claim. Dr.
Sterle responded in the negative, stating:
               The C-9 requesting a reverse total right shoulder arthroplasty
               is not medically necessary and appropriate to treat the
               allowed conditions in the claim. The claim has been allowed
               for rotator cuff sprain and right shoulder rotator cuff tear.

               The condition of right rotator cuff sprain as a soft tissue, self-
               limiting condition has long been resolved. The condition of
               right shoulder rotator cuff tear does not require a reverse total
               right shoulder procedure, which would be inappropriate.

               The request for a reverse total right shoulder arthroplasty is
               appropriate for the pre-existing, long-standing, degenerative
               condition involving massive rotator cuff tears with arthritis of
               the shoulder joint.

               There was no forceful mechanism of injury and the lifting
               incident can be considered a low force event.

       {¶ 26} When asked whether he believed the treatment requested was reasonably
related to claimant's industrial injury, Dr. Sterle again responded in the negative, stating:
               The C-9 requesting a reverse total right shoulder arthroplasty
               is not reasonably related to Ms. Garringer's industrial injury.

               The surgeon diagnosed the claimant's condition of massive
               tear of the rotator cuff and glenohumeral joint. The rotator
               cuff tear was deemed to be irreparable, with arthritis of the
               glenohumeral joint (ball and socket).
No. 17AP-725                                                                             11


                The diagnosis of massive tear of the rotator cuff is in reference
                to tear of the supraspinatus, infraspinatus, and significant
                retraction. There was also a very high-grade partial tear of the
                subscapularis with chronic tear of the long head of the biceps
                tendon.
                When considering the mechanism of injury and the extensive
                shoulder pathology, it is very unlikely that these tears
                involving three tendons of the rotator cuff and the biceps
                tendon can be considered traumatic.

                There is a significant retraction of the full tears of the rotator
                cuff associated with proximal humeral head migration and
                glenohumeral (ball and socket) osteoarthritis indicating a
                chronic condition.

                ***

                [B]ecause of significant pre-existing arthritis of the shoulder
                with massive rotator cuff tear, she will require restrictions of
                lifting.

       {¶ 27} Dr. Sterle also believed that, considering the allowed conditions which
resulted from the incident in April 2016, claimant could perform her job duties with no
restrictions.
       {¶ 28} 10. The request was heard before a DHO on June 26, 2017 and was denied.
Specifically, the DHO relied on the medical report of Dr. Sterle and found the requested
medical services was not related to nor necessary for treatment of the allowed conditions.
Claimant appealed and the matter was heard before a staff hearing officer ("SHO") on
August 25, 2017. The SHO vacated the prior DHO order and granted the request for
reverse total right shoulder arthroplasty finding that it was within the usual, customary,
and reasonable guidelines. The SHO also found the medical services was reasonably
related to and reasonably necessary to treat the allowed conditions in the claim and the
cost was reasonable. The SHO relied on the report and C-9 completed by Dr. Tonnies.
       {¶ 29} 11.     Relator's appeal was refused by order of the commission mailed
September 20, 2017.
       {¶ 30} 12. Thereafter, relator filed the instant mandamus action in this court.
No. 17AP-725                                                                               12


Conclusions of Law:
       {¶ 31} For the reasons that follow, it is this magistrate's decision that relator has
not demonstrated the commission abused its discretion when it authorized the surgery
requested by Dr. Tonnies.
       {¶ 32} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 33} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 34} In order to demonstrate entitlement to the disputed medical treatment,
claimant was required to meet a three-prong test for the authorization of medical services.
Pursuant to State ex rel. Miller v. Indus. Comm., 71 Ohio St.3d 229 (1994), that three-
prong test provides: (1) are the medical services reasonably related to the industrial injury
that is the allowed condition; (2) are the services reasonably necessary for the treatment
of the industrial injury; and (3) is the cost of those services medically reasonable. When
the record contains some evidence to support the commission's finding, there is no abuse
of discretion and mandamus is not appropriate.
       {¶ 35} The commission relied on Dr. Tonnies' C-9 and his August 2, 2016 report.
Dr. Tonnies stated that claimant has a massive tear of her right rotator cuff. Dr. Tonnies
No. 17AP-725                                                                              13


also opined that "primary repair of the rotator cuff is unlikely at this time secondary to
the degree of involvement." Clearly, Dr. Tonnies is saying that, because of the extent of
the tear (massive) and because of the underlying problems with claimant's surgery,
problems which are unrelated to the allowed conditions in her claim, the normal surgical
treatment utilized to repair a torn rotator cuff will most likely be unsuccessful. Given that
claimant had underlying degenerative shoulder issues, Dr. Tonnies opined the best
surgical option to successfully repair her rotator cuff tear was through the reverse total
shoulder arthroplasty.
       {¶ 36} The magistrate finds that the above C-9 and report do in fact constitute
some evidence supporting the commission's decision that, in this situation, the medical
services requested are reasonably related to her torn rotator cuff, are reasonably
necessary to treat the torn rotator cuff, and that the cost of those services is medically
reasonable.
       {¶ 37} Relator asserts that Dr. Sterle opined the requested surgery was not
medically necessary and appropriate; however, Dr. Sterle also opined that the manner in
which claimant asserted she injured herself is not what tore her rotator cuff. It was his
opinion that the tear already existed. However, as noted in the findings of fact, the claim
is allowed for torn rotator cuff of the right shoulder.
       {¶ 38} Relator cites State ex rel. Cleveland Clinic Found. v. Indus. Comm., 10th
Dist. No. 10AP-329, 2011-Ohio-2269, and asserts that it is factually analogous to the
present case. However, the magistrate disagrees. Martha Banks sustained a work-related
injury and her claim was allowed for aggravation of pre-existing osteoarthritis in both
knees. Dr. Richard E. Grant, an orthopedic surgeon, completed a C-9 form requesting
total knee arthroplasty. On that C-9, Dr. Grant listed as the treating diagnosis "715.96."
Id. at ¶ 32. That specific ICD code is for "osteoarthritis unspecified whether generalized
or localized involving lower leg." Id. The commission granted the request for surgery and
the employer, Cleveland Clinic Foundation, sought a writ of mandamus in this court. The
matter was referred to a magistrate who recommended this court issue a writ of
mandamus because there was no medical evidence which related the requested surgery
to the allowed condition in Banks' claim, that being aggravation of pre-existing
osteoarthritis of both knees.
No. 17AP-725                                                                            14


      {¶ 39} The facts here are markedly different. Claimant's claim is specifically
allowed for rotator cuff tear. The medical evidence on which the commission relied states
that the requested surgery is specifically to repair the torn rotator cuff. Further, as Dr.
Tonnies explains, given the severity of the tear and the underlying degenerative condition
of claimant's shoulder, the ordinary method of repairing a torn rotator cuff will not be
sufficient; instead, due to the underlying degenerative condition, claimant requires a
reverse total shoulder arthroplasty. The reality is that employers take their employees as
they find them. Here, claimant had underlying problems with her shoulder. None of
those underlying problems are allowed in her claim; however, their presence cannot be
used to deny the surgery where Dr. Tonnies indicates the requested surgery is necessary
to treat the allowed conditions. Because of those underlying problems, the normal
surgical procedure utilized to repair her allowed condition of torn rotator cuff would be
insufficient. As such, Dr. Tonnies opined that claimant needed a more involved surgical
procedure to correct the allowed condition of torn right rotator cuff. This constitutes
some evidence supporting the commission's decision.
      {¶ 40} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated the commission abused its discretion when it authorized the requested
surgery, and this court should deny relator's request for a writ of mandamus.


                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA




                               NOTICE TO THE PARTIES

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