[Cite as State ex rel. Coseno v. Indus. Comm., 2017-Ohio-8973.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Joseph L. Coseno,                    :

                 Relator,                              :

v.                                                     :             No. 16AP-151

Industrial Commission of Ohio                          :          (REGULAR CALENDAR)
and
City of Ashland,                                       :

                 Respondents.                          :



                                           D E C I S I O N

                                   Rendered on December 12, 2017


                 On brief: Nager, Romaine & Schneiberg, Jerald A.
                 Schneiberg, and Corey J. Kuzma, for relator.

                 On brief: Michael DeWine, Attorney General, and
                 Andrew J. Alatis, for respondent Industrial Commission of
                 Ohio.

                 On brief: Mansour Gavin LPA, James A. Budzik, and
                 Tracey S. McGurk, for respondent City of Ashland.

                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.
        {¶ 1} Relator, Joseph L. Coseno, commenced this original action requesting this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order denying his motion for temporary total disability
("TTD") compensation and ordering the commission to find he is entitled to an award of
TTD.
No. 16AP-151                                                                             2


       {¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate. The magistrate issued a decision,
appended hereto, including findings of fact and conclusions of law, and recommended
that this court deny Coseno's request for a writ of mandamus.
I. Facts and Procedural History
       {¶ 3} As the magistrate sets forth more fully, Coseno sustained a work-related
injury on August 26, 2013, and his workers' compensation claim was allowed for
unilateral inguinal hernia left, left ilioinguinal neuralgia/neuritis, and major depressive
disorder single episode moderate. In a November 12, 2014 office note, Todd Hochman,
M.D., opined Coseno had not yet reached maximum medical improvement ("MMI").
Subsequently, Coseno moved to Florida where he was under the care of Jane Bistline,
M.D. Dr. Bistline reported during a March 18, 2015 evaluation that Coseno may benefit
from an ilioinguinal nerve block. Coseno then returned to Ohio where he saw
Dr. Hochman on April 8, 2015. Dr. Hochman completed a Medco-14 form certifying that
Coseno was unable to return to his former position of employment but would be able to
return to work with restrictions from February 26 through July 20, 2015.
       {¶ 4} On April 26, 2015, L.J. Mascarenhas, M.D., completed a physician review of
Coseno's injuries and treatment. Dr. Mascarenhas noted Coseno had been receiving TTD
compensation since August 27, 2013, and Dr. Mascarenhas concluded Coseno had
reached MMI. However, in an April 29, 2015 report, Dr. Hochman explained that he did
not agree with Dr. Mascarenhas' physician review and stated that, in his opinion, Coseno
had not yet reached MMI. Dr. Hochman specifically noted until Coseno receives a repeat
ilioinguinal nerve block and all treatment options are exhausted, Coseno should be
entitled to continuation of his TTD benefits.
       {¶ 5} Coseno filed an application for TTD compensation on April 10, 2015. A
district hearing officer ("DHO") heard the matter on June 12, 2015 and denied Coseno's
request, concluding there was insufficient competent medical evidence to support the
requested period of TTD compensation.           The DHO specifically noted that although
Dr. Bistline opined Coseno may benefit from a left inguinal injection, there had been no
formal C-9 request for that treatment. The DHO also noted that while Dr. Hochman saw
Coseno on April 8, 2015, Dr. Hochman backdated the request for TTD from February 26,
No. 16AP-151                                                                                3


2015. Finally, the DHO noted that Dr. Mascarenhas opined that Coseno's condition had
reached MMI.
       {¶ 6} On July 1, 2015, Coseno saw Dr. Hochman again, at which time
Dr. Hochman stated he would submit a C-9 form requesting additional injections with
ultrasound guidance. Subsequently, on July 22, 2015, a staff hearing officer ("SHO")
heard Coseno's appeal from the DHO order, and the SHO order also denied the requested
period of TTD compensation.        The SHO concluded Dr. Hochman's certification of
disability beginning February 26, 2015 was not based on a contemporaneous physical
examination, and the SHO also relied on Dr. Mascarenhas' April 26, 2015 file review
opining Coseno had reached MMI. After the commission refused Coseno's further appeal,
Coseno filed this mandamus request. On July 27, 2017, the magistrate issued a decision
recommending this court deny Coseno's request for a writ of mandamus.
II. Objection to the Magistrate's Decision
       {¶ 7} Coseno sets forth the following objection to the magistrate's decision:
               The magistrate erred in denying Relator's request for a writ of
               mandamus by relying on the Industrial Commission
               Committee Order mailed August 11, 2015.

III. Discussion
       {¶ 8} In his sole objection to the magistrate's decision, Coseno argues the
magistrate erroneously concluded there was some evidence to support the order of the
commission denying the request for TTD compensation.
       {¶ 9} Initially, we note Coseno argues the SHO's order denying TTD
compensation "contains too many mistakes of law and facts to be relied upon." (Coseno's
Obj. at 5.) However, Coseno alerted the magistrate to these errors and discrepancies in
his brief, and the magistrate considered and disposed of them correctly. Though Coseno
now attempts to reargue his case in this regard, he does not identify any errors of fact or
law in the magistrate's decision related to the mistakes contained in the SHO's decision.
       {¶ 10} Coseno additionally argues the commission erroneously based its decision
to deny Coseno's request for TTD compensation on the medical report of
Dr. Mascarenhas, who opined that Coseno's conditions had reached MMI. For the first
time in these proceedings, Coseno argues Dr. Mascarenhas' report is not "some evidence"
No. 16AP-151                                                                             4


because it did not set forth a date on which Coseno should be found to have reached the
treatment plateau.
       {¶ 11} We note, however, that Coseno did not challenge the validity of
Dr. Mascarenhas' report in either the proceedings before the commission or the
proceedings before the magistrate. Indeed, the magistrate specifically noted that Coseno
did not challenge Dr. Mascarenhas' report. (Mag.'s Decision at ¶ 34.) As the Supreme
Court of Ohio has explained, a party's failure to raise an issue in the administrative
proceedings precludes the party from arguing the issue for the first time in a mandamus
action. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 84 (1997). See also
State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 10th Dist. No. 13AP-190,
2014-Ohio-2616, ¶ 8, quoting State ex rel. Burns Internatl. v. Smith, 10th Dist. No. 05AP-
488, 2006-Ohio-6713, ¶ 3 ("a failure to pursue [an] issue administratively 'bars this court
from addressing it de novo in this action' "). Thus, because Coseno failed to raise this
argument at both the administrative level and before the magistrate, Coseno is precluded
from raising it here. Accordingly, we overrule Coseno's objection to the magistrate's
decision.
IV. Conclusion
       {¶ 12} Following our independent review of the record pursuant to Civ.R. 53, we
find that the magistrate correctly determined that Coseno is not entitled to the requested
writ of mandamus as there is some evidence in the record to support the commission's
denial of Coseno's TTD compensation request. Accordingly, we adopt the magistrate's
decision as our own, including the magistrate's findings of fact and conclusions of law.
We therefore overrule Coseno's objection to the magistrate's decision and deny Coseno's
request for a writ of mandamus.
                                          Objection overruled; writ of mandamus denied.

                          TYACK, P.J., and BROWN, J., concur.
No. 16AP-151                                                                        5


                                       APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Joseph L. Coseno,         :

               Relator,                     :

v.                                          :                  No. 16AP-151

Industrial Commission of Ohio               :               (REGULAR CALENDAR)
and
City of Ashland,                            :

               Respondents.                 :



                          MAGISTRATE'S DECISION

                                Rendered on July 27, 2017



               Nager, Romaine & Schneiberg, Jerald A. Schneiberg, and
               Corey J. Kuzma, for relator.

               Michael DeWine, Attorney General, and Andrew J. Alatis,
               for respondent Industrial Commission of Ohio.

               Mansour Gavin LPA, James A. Budzik, and Tracey S.
               McGurk, for respondent City of Ashland.


                                      IN MANDAMUS

      {¶ 13} Relator, Joseph L. Coseno, has filed this original action requesting this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order denying his motion for temporary total disability
("TTD") compensation and ordering the commission to find that he is entitled to that
award as requested.
No. 16AP-151                                                                              6


Findings of Fact:
       {¶ 14} 1. Relator sustained a work-related injury on August 26, 2013, and his
workers' compensation claim has been allowed for the following conditions: "Unilateral
inguinal hernia left; left ilioinguinal neuralgia/neuritis; major depressive disorder single
episode moderate."
       {¶ 15} 2. The stipulation contains the November 12, 2014 office note of Todd F.
Hochman, M.D. It appears relator had been treating with Dr. Hochman following the
injury. In his November 2014 office note, Dr. Hochman opined that relator had not yet
reached maximum medical improvement ("MMI"), had undergone injections which did
not provide him with relief, and that other medical tests needed to be scheduled. With
regard to his physical exam, Dr. Hochman noted the following: "Was pretty much
unchanged. He still complains of the pain in the inguinal region." Regarding history
and the treatment plan, Dr. Hochman noted as follows:
               Claim No. 13-341277 has been recognized for the left
               inguinal hernia * * *, and the left ilioinguinal
               neuralgia/neuritis * * *. The patient had surgery by Dr.
               Peabody. He saw Dr. Ningegowda. He tried to get in touch
               with Dr. Rosen but he had a difficult time because Dr. Rosen
               was in the process of transferring between University
               Hospitals and the Cleveland Clinic. He saw Dr. Bencsath but
               I still have yet to see those notes. He saw Dr. Vrooman. He
               had the injection on September 8, 2013. It did not provide
               the relief that he had hoped. Dr. Vrooman also discussed a
               peripheral nerve stimulator but the patient really does not
               want to consider that. The patient is hopeful that Dr. Rosen
               will have some insight. The patient will see Dr. Rosen
               tomorrow, November 13, 2014. We will get the notes and
               proceed accordingly. He understands that he should get the
               scrotal ultrasound and follow up with the urologist. Once he
               gets those scheduled, we will get the end date extended. I
               reviewed the OARRS system today, November 12, 2014. I am
               going to refill Lyrica 75 mg 2 p.o. q.a.m. and 3 p.o. q.h.s.
               #120 x2 refills. He is out of work as there is no light duty
               work available. I will update the Medco-14. He will return in
               1 month.

       {¶ 16} 3. Relator moved to Florida and began treating with Jane E. Bistline, M.D.
In her initial evaluation, dated March 18, 2015, Dr. Bistline noted that relator had been
No. 16AP-151                                                                            7


involved in a work-related accident which resulted in low back and left side groin pain
post inguinal hernia repair. Ultimately, Dr. Bistline concluded:
               Assessment:
               [One] Lumbago - 724.2 (Primary)
               [Two] Unspecified mononeuritis of lower limb - 355.8,
               ilioinguinal neuralgia

               Plan:
               [One] Lumbago
               Notes: Recommend a lumbar MRI without contrast
               [Two] Unspecified mononeuritis of lower limb
               Notes: I recommend and feel at this time that the patient
               may benefit from a ilioinguinal nerve block. Risks, benefits
               and alternatives were discussed with the patient. The patient
               wishes to proceed.

      {¶ 17} 4. Relator returned to Ohio and was again seen by Dr. Hochman. In his
April 8, 2015 office note, Dr. Hochman detailed the recent medical evidence, stating:
               The patient is in today for a follow up. The patient had the
               hernia. He had surgery by Dr. Peabody. He was seen by
               Dr. Ningegowda. He saw Dr. Ungar who agreed with the
               ilioinguinal neuralgia (355.8). He was able to get in to see
               Dr. Bencsath. He was never able to come up with those
               records. He saw Dr. Vrooman. He was approved for
               injections. They did not provide the relief that he had hoped.
               He saw a urologist and the urologist is recommending a
               scrotal ultrasound. That has yet to be completed. We will try
               to get the end date extended. He did see Dr. Michael Rosen. I
               was able to review the notes from Dr. Rosen. Dr. Rosen was
               concerned about the hip but felt that there were no surgical
               pathologies. Complicating the patient situation, the patient's
               daughters are ill. He tried to receive treatment at the local
               facilities and then was sent to Children's Hospital of
               Philadelphia. The patient was given two options ─ go to
               Children's Hospital in Texas or Children's Hospital in Miami,
               Florida. He has had to relocate to Florida due the fact that he
               is attending to his children's needs. He was able to get in to
               see Dr. Jane Bistline at * * *. Apparently, she would not take
               over as Physician of Record but is willing to see the patient
               for pain management. It is my understanding that
               Dr. Bistline feels the patient would benefit from additional
               injections. I am going to get those notes. We will submit the
               appropriate C-9s. The patient remains out of work as there is
               no light duty work available. I will update his Medco-14
No. 16AP-151                                                                              8


               today. The condition prevents him from returning to work
               full duty and there has been no light duty available.

        {¶ 18} 5. That same day, Dr. Hochman completed a Medco-14 certifying that
relator was unable to return to his former position of employment, but could return to
work with restrictions from February 26 through July 20, 2015.
        {¶ 19} 6. A physician review by L.J. Mascarenhas, M.D., was completed April 26,
2015.    Dr. Mascarenhas was asked whether the medical evidence subsequent to
February 26 through July 20, 2015 supported the payment of TTD compensation. After
reviewing the medical evidence and discussing the treatment, Dr. Mascarenhas noted
that relator had been on TTD compensation since August 27, 2013 and that he had
surgery and nerve block injections. Ultimately, Dr. Mascarenhas concluded that relator
had reached MMI, stating:
               He has obtained no relief from the ilioinguinal block and
               consult with Dr. Rosen (hernia specialist) indicates his
               problem may be musculoskeletal or related to the hip. MRI
               was to be done. No documentation of result.

               Claimant has been in his usual state of chronic groin
               pain. There has been no new or altered condition to
               warrant this ongoing TTD.

               Deny TTD 2/26/15 to 7/20/15 Est.

(Emphasis sic.)

        {¶ 20} 7. The record contains the April 29, 2015 report of Dr. Hochman, wherein
Dr. Hochman explains why Dr. Mascarenhas' physician's review does not change his
opinion that relator's allowed conditions had not reached MMI.                 Specifically,
Dr. Hochman stated:
               Mr. Coseno is unable to return to his previous position of
               employment as a firefighter/paramedic without restrictions.
               Mr. Coseno is out of work at this time as his employer cannot
               accommodate light duty status. Due to unfortunate
               circumstances with Mr. Coseno's children, Mr. Coseno has
               relocated to Florida and is currently under the care of
               Dr. Jane Bistline, a pain management physician. As
               documented in Dr. Bistline's March 18, 2015 record, it is the
               opinion of a board-certified pain management physician that
No. 16AP-151                                                                              9


               an ilioinguinal nerve block is required. Until the repeat
               ilioinguinal nerve block is completed, and all treatment
               options are exhausted, Mr. Coseno has not reached
               maximum medical improvement. Provided that Mr. Coseno
               is unable to return to his previous position of employment as
               a firefighter/paramedic, without restrictions, as well as
               taking into consideration that Mr. Coseno's employer is
               unable to accommodate light duty status, and that
               Mr. Coseno would benefit from additional invasive pain
               procedures, including an ilioinguinal nerve block, and
               therefore has not reached maximum medical improvement,
               it is my medical opinion that Mr. Joseph Coseno should be
               entitled to continuation of his temporary total disability
               benefits.

       {¶ 21} 8. Relator filed an application for TTD compensation on April 10, 2015.
       {¶ 22} 9. The matter was heard before a district hearing officer ("DHO") on
June 12, 2015.     The DHO denied relator's request finding there was insufficient
competent medical evidence to support the requested period of compensation. The
DHO specifically noted: (1) relator "saw Michael Rosen, M.D. on 11/13/2014. That
office note indicates 'I'm concerned that he might have an undiagnosed lesion either in
his musculoskeletal region or left hip;' " (2) "[t]here is no medical treatment in the state
file from 11/13/2014 through 03/18/2015" when relator saw Dr. Bistline, whose
"primary assessment is Lumbago and [relator] needs a lumbar MRI;" (3) Dr. Bistline
opined that relator may benefit from a "left inguinal injection;" however, there had been
"no C-9 request for that treatment" and relator "had the same procedure done at the
Cleveland Clinic last August without relief;" (4) Dr. Hochman saw relator on April 8,
2015 yet backdated the request for TTD compensation from February 26, 2015 without
also requesting any medical service or recommendation for additional conditions; and
(5) in his April 26, 2015 file review, Dr. Mascarenhas opined that relator's condition had
reached MMI.
       {¶ 23} 10. Relator saw Dr. Hochman again on July 1, 2015.             Dr. Hochman
explained that, based on his physical findings, there was no reason to pursue an
evaluation of the hip nor was there a reason to pursue a lumbar MRI. Because he still
believed that relator would benefit from additional injections, he indicated that he
would submit a C-9 requesting the injections with ultrasound guidance.
No. 16AP-151                                                                            10


      {¶ 24} 11. Relator's appeal from the DHO order was heard before a staff hearing
officer ("SHO") on July 22, 2015.       The SHO also denied the requested period of
compensation finding that Dr. Hochman's certification of disability beginning
February 26, 2015 was not in compliance with Ohio Adm.Code 4123-3-18 because the
period was not based on a contemporaneous physical examination. The SHO noted
further that there were no C-9 requests for medical services or recommendations for the
allowance of additional conditions during the period of requested disability and that the
treatment plan in each Medco-14 has remained unchanged for more than a 10-month
period. The SHO specifically relied on Dr. Mascarenhas' April 26, 2015 file review
opining that relator had reached MMI.
      {¶ 25} 12. Relator's further appeal was refused by order of the commission
mailed September 1, 2015.
      {¶ 26} 13. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
      {¶ 27} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
      {¶ 28} 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).
      {¶ 29} 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
No. 16AP-151                                                                          11


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).
      {¶ 30} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work;
(2) claimant's treating physician has made a written statement that claimant is able to
return to the former position of employment; (3) when work within the physical
capabilities of claimant is made available by the employer or another employer; or
(4) claimant has reached MMI. See R.C. 4123.56(A); State ex rel. Ramirez v. Indus.
Comm., 69 Ohio St.2d 630 (1982).
      {¶ 31} Relator's first argument is that the statement by the SHO that
Dr. Hochman's certification of disability beginning February 26, 2015 did not comply
with Ohio Adm.Code 4123-3-18 because the period was not based on a
contemporaneous medical examination is a misstatement of the law and it was an abuse
of discretion for the SHO to cite this reason as a basis for denying the request for TTD
compensation. Relator argues that the administrative code section cited by the SHO
relates to appeals and not requests for TTD compensation.
      {¶ 32} Relator is correct that Ohio Adm.Code 4123-3-18 does not apply; however,
the magistrate finds that this is nothing more than a typographical error on the part of
the SHO and that the proper citation should have been to Ohio Adm.Code 4123-5-18,
which involves the medical proof required for the payment of compensation. While the
SHO did not cite the proper administrative code section, the SHO did explain that the
requested period of compensation was not based on a contemporaneous physical
examination. It is undisputed that Dr. Hochman examined relator in November 2014
and then did not examine him again until April 2015.          As such, Dr. Hochman's
certification of disability beginning in February 2015, was not based on a
contemporaneous medical examination.         Relator clearly had notice of the SHO's
reasoning. This typographical error does not constitute grounds for the issuance of a
writ of mandamus. Relator also points out the SHO stated there was a six-month gap in
treatment when, in reality, the gap was only five months.           Relator asserts this
No. 16AP-151                                                                             12


constitutes grounds for the granting of a writ. The magistrate disagrees. Again, relator
had notice that his evidence was found insufficient because it was not contemporaneous
because there was a gap.
       {¶ 33} Relator argues further that his medical evidence was sufficient to support
a finding that he was temporarily and totally disabled during the requested period of
time. However, as noted in the findings of fact, the SHO specifically cited reliance on
the medical file review of Dr. Mascarenhas who opined that relator's allowed conditions
had reached MMI because there had been no relief from the inguinal nerve block in
November 2014, no other treatment had occurred despite recommendations, and
relator's pain was chronic in nature.
       {¶ 34} Questions of credibility and the weight to be given evidence are clearly
within the discretion of the commission as fact finder. Teece. It is immaterial whether
other evidence, even if greater in quality and/or quantity, supports a decision contrary
to the commission's. State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373
(1996). Here, the commission specifically relied on the file review of Dr. Mascarenhas
and found that relator's allowed conditions had reached MMI.               Relator does not
challenge Dr. Mascarenhas' report. This constitutes acceptable grounds for denying the
requested period of TTD compensation and does not constitute an abuse of discretion.
       {¶ 35} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied his application
for temporary total disability compensation and this court should deny his 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).
