[Cite as State ex rel. Calhoun v. Indus. Comm., 2019-Ohio-720.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Richard W. Calhoun,                      :

                 Relator,                              :

v.                                                     :             No. 17AP-820

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

                 Respondents.                          :



                                           D E C I S I O N

                                   Rendered on February 28, 2019


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

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

                 Jones, Funk & Associates LPA, and Glenn R. Jones, for
                 respondent Lincoln Electric Holding, Inc.


                                   IN MANDAMUS
                       ON OBJECTIONS TO MAGISTRATE'S DECISION

KLATT, P.J.

        {¶ 1} Relator, Richard W. Calhoun, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order granting the motion of respondent, Lincoln Electric Holding, Inc., to
suspend his claim pursuant to R.C. 4123.651, and to enter an order denying the motion.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
conclusions of law, which is appended hereto. The magistrate found that relator failed to
No. 17AP-820                                                                                 2

demonstrate a clear legal right to have the suspension of his claim lifted given his refusal to
undergo psychological testing proposed by his employer's examining physician. Therefore,
the magistrate has recommended that we deny relator's request for a writ of mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision. In essence, relator
argues that the commission's Medical Examination Manual ("manual") gives him the right
to refuse psychological testing by his employer's examining physician. Therefore, relator
contends his refusal constitutes "good cause" under R.C. 4123.651(C). Based solely upon
this alleged good cause, relator argues the commission cannot suspend his claim. We
disagree.
       {¶ 4} The question before us is not whether relator had the right to refuse
psychological testing. Rather, the question is whether his refusal to subject himself to
psychological testing by his employer's examining physician constitutes good cause under
R.C. 4123.651(C), thereby preventing the suspension of his claim. We conclude it does not.
       {¶ 5} As noted by the magistrate, the manual sets forth guidelines for commission
medical examiners. The manual itself expressly states "[t]his Manual presents Commission
policies for independent medical examinations and medical file reviews." The manual is
not directed toward examinations performed by an employer's doctor. Moreover, an
employer's right to have a claimant examined is set forth in R.C. 4123.651:
              (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 * * * 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.
No. 17AP-820                                                                             3

       {¶ 6} The manual 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 an examination
automatically constitutes good cause, R.C. 4123.651(C) would be a nullity. Therefore,
relator's reliance on the manual as the basis for good cause under R.C. 4123.651(C) is
misplaced.
       {¶ 7} Relator has advanced no other argument for why he had good cause to refuse
psychological testing by the 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 relator's objections.
       {¶ 8} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
                                         Objections overruled; writ of mandamus denied.

                     DORRIAN and LUPER SCHUSTER, JJ., concur.
No. 17AP-820                                                                             4

                                        APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel. Richard W. Calhoun,        :

             Relator,                        :

v.                                           :                    No. 17AP-820

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

             Respondents.                    :


                         MAGISTRATE'S DECISION

                             Rendered on September 5, 2018


             Plevin & Gallucci Co., L.P.A., and 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.

             Jones, Funk & Associates LPA, and Glenn R. Jones, for
             respondent Lincoln Electric Holding, Inc.


                                    IN MANDAMUS

      {¶ 9} In this original action, relator, Richard W. Calhoun, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the August 21, 2017 order of its staff hearing officer ("SHO") granting the August 11, 2017
motion of respondent Lincoln Electric Holding, Inc. ("Lincoln Electric"), that requests
suspension of the claim pursuant to R.C. 4123.651, and to enter an order denying the
motion.
No. 17AP-820                                                                                 5

Findings of Fact:
       {¶ 10} 1. On March 19, 2000, relator sustained an industrial injury while employed
as a press operator for Lincoln Electric, a self-insured employer under Ohio's workers'
compensation laws. The industrial claim is allowed for: "Lumbar sprain; thoracic/lumbar
disc displacement; L4-L5 disc herniation; discitis lumbar L4-L5; osteomyelitis L4-5."
       {¶ 11} 2.    On April 27, 2017, at his own request, relator was examined by
psychologist James M. Medling, Ph.D. In his four-page narrative report, Dr. Medling
opines:
              Diagnostically, he presents with Depressive Disorder NEC
              which converts to an ICD-10 diagnosis of Major Depressive
              Disorder, Single Episode, Unspecified (F32.9). His major
              depression is a direct and proximate result of his 3/19/00
              work injury. Psychological counseling is recommended.

       {¶ 12} 3. In June 2017, citing Dr. Medling's report, relator moved that the claim be
additionally allowed for the psychological condition identified in Dr. Medling's report.
       {¶ 13} 4. By letter dated July 12, 2017, Lincoln Electric denied relator's motion for
an additional claim allowance.
       {¶ 14} 5. Earlier, by letter dated July 11, 2017, Lincoln Electric informed relator that
he was scheduled for examination by psychologist Robert G. Kaplan, Ph.D., on August 10,
2017 at a time and location specified in the letter.
       {¶ 15} 6. Relator appeared for the examination with Dr. Kaplan as scheduled on
August 10, 2017. However, on the advice of his attorney, relator refused psychological
testing.
       {¶ 16} 7. On August 10, 2017, Dr. Kaplan wrote:
              I was able to complete the structured diagnostic clinical
              interview portion of my examination today of Mr. Calhoun.
              However, he refused to complete any psychological testing on
              the advice of his attorney. I contacted his attorney's office to
              verify this statement and received confirmation that his
              attorney did not want Mr. Calhoun to complete any
              psychological testing. I tried to explain that I could not
              complete my examination without psychological testing. His
              office still insisted that no psychological testing be completed.
              In over 30 years of performing these examinations, I have
              never encountered such a refusal before. Psychological testing
              is routinely part of any psychological examination. Therefore,
No. 17AP-820                                                                             6

              I will not be able to provide a report to you of my examination
              until this matter is resolved with his attorney and Mr. Calhoun
              is able to complete the standard psychological testing that is
              routinely provided in such examinations.

       {¶ 17} 8. Citing the August 10, 2017 correspondence from Dr. Kaplan, on August 11,
2017, Lincoln Electric moved for suspension of the claim pursuant to R.C. 4123.651.
       {¶ 18} 9. Earlier, on August 1, 2017, the commission issued notice of a hearing
before a district hearing officer ("DHO") on relator's motion for an additional claim
allowance. The hearing was scheduled for August 17, 2017.
       {¶ 19} 10. On August 16, 2017, the commission's hearing administrator mailed a
"compliance letter" that grants the employer's August 11, 2017 motion for suspension of the
claim. The compliance letter states in part:
              By this letter, the Employer's motion filed 08/11/2017 is
              granted.

              The Employer has made application to be afforded relief
              under R.C. 4123.651(C) for the reason that the Injured Worker
              has refused without good cause to submit to a complete
              Employer's psychological examination scheduled under R.C.
              4123.651(A).

              Following review of the claim file and relevant evidence, it is
              the finding of the Hearing Administrator that the Employer
              has demonstrated good cause for the relief requested. IT IS,
              THEREFORE, THE FINDING OF THE HEARING
              ADMINISTRATOR THAT ALL ACTIVITY IN THE CLAIM IS
              SUSPENDED.

              AS SUCH, THE HEARING SCHEDULED FOR THURSDAY,
              08/17/2017 AT 2:30 P.M. IN CLEVELAND IS CANCELLED.

              In order to remove this suspension, the Injured Worker must
              notify the Employer in writing that the Injured Worker is
              willing to appear for an examination as scheduled by the
              Employer. The Employer must then reschedule and complete
              that examination within 45 days of receiving the Injured
              Worker's notice of intent to appear.

              After the Injured Worker has attended the rescheduled
              examination, the parties shall immediately notify the Hearing
              Administrator, in writing, of the Injured Worker's attendance.
              THE ATTENDANCE BY THE INJURED WORKER TO THE
No. 17AP-820                                                                             7

             RESCHEDULED    PSYCHOLOGICAL    EXAMINATION
             SHALL AUTOMATICALLY REVOKE THE SUSPENSION
             AND NO OTHER COMPLIANCE LETER WILL BE ISSUED.

      {¶ 20} 11. By letter dated August 16, 2017, relator, through counsel, objected to the
suspension of the claim. Relator requested a hearing on the matter.
      {¶ 21} 12. On August 17, 2017, Dr. Kaplan wrote to counsel for Lincoln Electric:
             I am responding to your request for additional information
             regarding the need for psychological testing with Mr.
             Calhoun. The psychological testing that is required usually
             takes most individuals less than two hours to complete. It is a
             standard test battery consisting of widely accepted measures
             of psychopathology (the Minnesota Multiphasic Personality
             Inventory), and pain and psychosocial functioning (Brief
             Battery for Health Improvement-2). The testing procedure
             involves having the subject read items and mark their answers
             on an answer sheet. The tests require no more than a sixth
             grade reading level. The requested psychological testing is not
             a physically intrusive procedure, such as taking blood samples
             or diagnostic imaging. Mr. Calhoun would be allowed to take
             breaks whenever he felt it was necessary and any physical
             limitations, such as needing to stand or stretch occasionally,
             or use the bathroom, could be readily accommodated. He
             would complete the testing in a quiet, well-appointed, well-lit,
             air-conditioned office, with a comfortable executive chair. He
             can have water or other beverages served to him by my
             administrative staff, as he requests. It would not even be
             necessary for him to complete the testing all in one sitting, if
             he prefers.

             The Minnesota Multiphasic Personality Inventory-2 is the
             most widely used test for assessment of chronic pain patients.
             The Brief Battery for Health Improvement-2 has specific
             norms for chronic pain patients as well as the general
             population and is also recommended for assessment of
             chronic pain patients. Research shows that psychological
             diagnoses based upon psychological testing are more accurate
             than those based upon clinical judgment. Furthermore, these
             tests provide a more objective basis upon which to base a
             diagnosis and determine symptom severity than clinical
             judgment.

(Footnote omitted.)
No. 17AP-820                                                                             8

       {¶ 22} 13. On August 21, 2017, an SHO heard the August 11, 2017 motion of Lincoln
Electric for suspension of the claim.
       {¶ 23} Apparently, at the hearing, relator presented pages 69 through 71 from the
commission's Medical Examination Manual effective January 1, 2017.
       {¶ 24} Pages 69 through 71 of the manual appear at a section of the manual
captioned "Mental and Behavioral Examinations." On page 71, the manual states:
              ALLOWED DIAGNOSITC TESTING

              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.

(Emphasis sic.)

       {¶ 25} 14. Following the August 21, 2017 hearing, the SHO issued an order granting
the August 11, 2017 motion of Lincoln Electric for suspension of the claim. The SHO's order
explains:
              The evidence on file indicated that the Injured Worker filed a
              motion on 06/29/2017 requesting that the claim be allowed
              for the condition of major depressive disorder, single episode,
              unspecified. In support of that motion, the Injured Worker
              submitted a report from James Medling, Ph.D., dated
              04/27/2017. Nowhere in Dr. Medling's report is there any
              evidence that an MMPI test was administered and no copies
              of test results, interpretation of test, or physician's summary
              or comments correlating the interpretation of the test have
              been submitted into evidence. There is no evidence that the
              Injured [Worker] has undergone a MMPI test.

              The Employer, in response to the motion for additional
              allowance for the psychological condition, set up an
              examination with Robert Kaplan, Ph.D. The Injured Worker
              did appear for the examination with Dr. Kaplan and
              cooperated with the diagnostic clinical portion of the exam.
              However, the Injured Worker refused to undergo the MMPI
              testing on advice of his attorney. In an 08/11/2017 report, Dr.
              Kaplan indicated that the MMPI was a routine part of his
              psychological examination and evaluation. Dr. Kaplan also
              indicated that he would not be able to provide the Employer
              with a report since the Injured Worker refused to take the
              MMPI test. In his 08/17/2017 report, Dr. Kaplan stated that
No. 17AP-820                                                                     9

           psychological testing provides a much more objective basis
           upon which to base a diagnosis and to determine symptom
           severity. Dr. Kaplan communicated to the Employer that he
           was unable to provide a defense report without the MMPI
           testing.

           The Employer then filed a motion to suspend on 08/16/2017
           [sic] based on the Employer's inability to get a defense
           medical report. The Hearing Administrator suspended the
           claim on 08/16/2017. The Injured Worker timely objected to
           the suspension and the claim was set for hearing on this
           objection on this date.

           At hearing, counsel for the Injured Worker argued the Injured
           Worker had the right to decline taking the MMPI test based
           on the Industrial Commission's medical examination manual.
           The manual provides in pertinent part:

           "MMPI and Bender-Gestaldt are considered part of a
           psychological exam and are not billable. Injured Worker may
           decline testing, and if this is the case, note the refusal and base
           opinions on the available data."

           It should be noted that the Industrial Commission's medical
           examination manual is instructive for Industrial Commission
           medical examiners who are hired by the Industrial
           Commission almost exclusively to exam[ine] Injured
           Worker's on the issue of permanent total disability. In these
           claims, the issue of allowance of the psychological conditions
           has already been adjudicated. Regardless, the cited Industrial
           Commission medical examination manual is not binding on
           Bureau of Workers' Compensation doctors or on the
           Employer's doctors.

           The issue is whether the Injured Worker's refusal to take a
           MMPI test is a basis for suspension of the claim.

           The Injured Worker's position is that the refusal is based on
           the Industrial Commission medical examination manual. As
           indicated previously this manual is a guideline for the
           Industrial Commission specialists and is not binding on
           examinations performed by the Employer.

           ***

           The Employer's position is supported by the 08/17/2017
           report of Dr. Kaplan. First, Dr. Kaplan points out that the
No. 17AP-820                                                                 10

           requested MMPI testing is not a physically intrusive
           procedure. Dr. Kaplan indicated that the Injured Worker
           would be allowed to take breaks whenever he wanted. The
           Injured Worker could stand or stretch as needed. The Injured
           Worker could take bathroom breaks whenever the Injured
           Worker wanted to. Dr. Kaplan stated the following:

           "He would complete the testing in a quiet, well-appointed,
           well-lit, air conditioned office, with a comfortable executive
           chair. He can have water or other beverages served to him by
           my administrative staff, as he requests. It would not even be
           necessary for him to complete the testing in one sitting, if he
           prefers."

           Based on the foregoing the Staff Hearing Officer concludes
           that the test is not a physically intrusive test.

           Further, Dr. Kaplan explains the need for the MMPI testing:

                Tests provide a standardized administration and
                 scoring procedure that limits the influence of conscious
                 and unconscious examiner bias.
                Tests have known rates of accuracy and error (unlike
                 clinical judgments).
                Tests have norms that provide a common reference
                 point of comparison.
                Tests provide quantifiable measurement of symptoms.
                Tests have validity measures that gauge the accuracy of
                 a subject's symptom reporting.
                Tests are more comprehensive and efficient at
                 obtaining information than a clinical interview.
                Tests measure multiple personality and cognitive
                 symptoms simultaneously.

                  Clearly the benefits of having the MMPI testing
                  completed is supported by Dr. Kaplan. No contrary
                  medical and/or psychological evidence has been
                  submitted to refute these benefits.

                  Clearly, the report of Dr. Kaplan dated 08/17/2017
                  gives persuasive and valid reasons for having the
                  Injured Worker undergo the MMPI testing. The Staff
                  Hearing Officer does not find the Injured Worker's
                  reliance on an Industrial Commission medical
                  examination manual binding on Employer's
                  examination. The Staff Hearing Officer does not find
                  the Industrial Commission medical examination
No. 17AP-820                                                                                 11

                        manual to be a valid reason to refuse to take the MMPI
                        test in light of the 08/17/2017 report of Dr. Kaplan.

                        Therefore the Staff Hearing Officer finds the Injured
                        Worker has not shown good cause for failing to take the
                        MMPI test as previously scheduled.

                        Accordingly, the Employer's request to suspend the
                        claim is granted. To remove the suspension, the
                        Injured Worker must notify the Employer in writing
                        his willingness to take the requested MMPI testing so
                        that Dr. Kaplan can complete his report. The Employer
                        must schedule the MMPI testing and complete the
                        testing and examination within 45 days of receiving the
                        Injured Worker's notice of intent to appear.

                        After the Injured Worker has completed the MMPI
                        testing, the parties shall notify the Hearing
                        Administrator in writing of the Injured Worker's
                        attendance. The attendance of the Injured Worker and
                        completion of MMPI testing shall automatically revoke
                        the suspension.

                        A compliance letter will not be issued revoking the
                        suspension.

          {¶ 26} 15. On November 21, 2017, relator, Richard W. Calhoun, filed this mandamus
action.
Conclusions of Law:
          {¶ 27} The issue is whether relator has shown a clear legal right to refuse to undergo
the psychological tests offered by Dr. Kaplan at the August 10, 2017 examination.
          {¶ 28} Finding relator has not demonstrated a clear legal right to refuse to undergo
the psychological tests offered by Dr. Kaplan at the August 10, 2017 examination, it is the
magistrate's decision that this court deny relator's request for a writ of mandamus, as more
fully explained below.
          {¶ 29} The parties have stipulated to the commission's Medical Examination
Manual effective January 1, 2017.
          {¶ 30} The manual provides an "Introduction" on page one, stating:
                 This Manual presents Commission policies for independent
                 medical examinations and medical file reviews. The purpose
                 of the independent medical examination (IME) is to
No. 17AP-820                                                                        12

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

      {¶ 31} The manual sets forth administrative policies on pages three through four.
At page three, the manual states:
             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.

             ***

             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.

             ***

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

      {¶ 32} Beginning at page 31, the manual provides instructions for medical
examinations by body systems.
      {¶ 33} Beginning at page 69, the manual provides instructions for mental and
behavioral examinations.
      {¶ 34} As earlier noted, at page 71, the manual states:
             ALLOWED DIAGNOSTIC TESTING

             MMPI and Bender-Gestaldt are considered part of a
             psychological examination and are not billable. Injured
No. 17AP-820                                                                            13

             Workers may decline testing, and if this is the case, note the
             refusal and base opinions on the available data.

      {¶ 35} It should be noted that the employer's scheduling of an examination by Dr.
Kaplan and the commission's suspension of the claim were pursuant to R.C. 4123.651,
which provides in part:
             (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 * * * 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.

      {¶ 36} Significantly, before the commission, relator argued that his alleged right to
refuse psychological testing offered by Dr. Kaplan is supported by the commission's
medical examination manual, and specifically at page 71 of the manual.
      {¶ 37} The SHO's order of August 21, 2017 rejected relator's interpretation of page
71 of the manual. The SHO's order states:
             At hearing, counsel for the Injured Worker argued the Injured
             Worker had the right to decline taking the MMPI test based
             on the Industrial Commission's medical examination manual.
             The manual provides in pertinent part:

             ***

             It should be noted that the Industrial Commission's medical
             examination manual is instructive for Industrial Commission
             medical examiners who are hired by the Industrial
             Commission almost exclusively to exam[ine] Injured
             Worker's on the issue of permanent total disability. In these
             claims, the issue of allowance of the psychological conditions
             has already been adjudicated. Regardless, the cited Industrial
No. 17AP-820                                                                              14

              Commission medical examination manual is not binding on
              Bureau of Workers' Compensation doctors or on the
              Employer's doctors.

       {¶ 38} Clearly, based on a careful examination of the commission's medical
examination manual, the SHO's order of August 21, 2017 is correct in its finding that the
manual is not binding on examinations performed by the employer. Thus, the magistrate
concludes that relator's assertion that he had a right to refuse to undergo the psychological
tests offered by Dr. Kaplan is not supported by the manual.
       {¶ 39} Accordingly, based on the above analysis, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.


                                           /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).
