[Cite as State ex rel. Everhart v. Indus. Comm., 2016-Ohio-8017.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel. Stacy M. Everhart,               :

                 Relator,                              :

v.                                                     :               No. 15AP-1020

Industrial Commission of Ohio                          :            (REGULAR CALENDAR)
and Delaware, [ODOT] Mail Stop 1520,
                                                       :
                 Respondents.
                                                       :



                                            D E C I S I O N

                                    Rendered on December 6, 2016


                 On brief: Jon Goodman Law, LLC, and Jon H. Goodman,
                 for relator.

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

                 On brief: Isaac, Wiles, Burkholder & Teetor, LLC, and
                 Brandon L. Abshier, for respondent Delaware, ODOT Mail
                 Stop 1520.


                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, Stacy M. Everhart, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order denying a May 8, 2015 C-9 request for approval of an MRI, and to enter
an order granting the C-9 request.
No. 15AP-1020                                                                              2

       {¶ 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 some
evidence (Dr. Graham's report) supported the commission's determination that the MRI
requested in the C-9 was not medically necessary for the treatment of the allowed claims.
In addition, the magistrate found that relator failed to show by clear and convincing
evidence that she sought approval of the MRI to obtain a more specific diagnosis in an
allowed claim. 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 her first
objection, relator argues that the magistrate erred by failing to consider the June 5, 2015
C-11 form of Dr. Writesel. We disagree.
       {¶ 4} Although the magistrate did not expressly reference the C-11 form of Dr.
Writesel in his decision, he was clearly aware of it because he notes in his findings of fact
that relator appealed the initial denial of relator's C-9 request.        That appeal was
effectuated through the C-11 form. Therefore, the magistrate was clearly aware of Dr.
Writesel's C-11 form.
       {¶ 5} To the extent relator is arguing that the magistrate erred by failing to find
that the C-11 form was clear and convincing evidence that relator sought the MRI to
explore a more specific diagnosis in an allowed claim, we also disagree. Nothing in the C-
11 form clearly indicates that this was the purpose of the MRI.
       {¶ 6} For these reasons, we overrule relator's first objection.
       {¶ 7} In her second objection, relator argues that the magistrate should have
found that the commission failed to apply the correct legal standard to the issue before it.
Essentially, relator again contends that the commission should have interpreted relator's
administrative filings as requests for an MRI to explore a more specific diagnosis in an
allowed claim and should have evaluated the request on that basis. Again, we disagree.
       {¶ 8} As noted by the magistrate, relator failed to clearly and convincingly
demonstrate that she sought the MRI to explore a more specific diagnosis in an allowed
claim, rather than for purposes of treatment of an allowed condition. Therefore, we agree
with the magistrate that the commission evaluated relator's request on the basis set forth
No. 15AP-1020                                                                            3

in relator's filings.   Those filings indicate that the MRI was sought for purposes of
treatment. We perceive no error in the magistrate's analysis. Therefore, we overrule
relator's second objection.
       {¶ 9} 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.

                                BROWN and SADLER, JJ., concur.
No. 15AP-1020                                                                        4

                                       APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel. Stacy M. Everhart,   :

              Relator,                     :

v.                                         :                   No. 15AP-1020

Industrial Commission of Ohio              :               (REGULAR CALENDAR)
and Delaware, [ODOT] Mail Stop 1520,
                                           :
              Respondents.
                                           :


                          MAGISTRATE'S DECISION

                                Rendered on June 6, 2016


              Jon Goodman Law, LLC, and Jon H. Goodman, for relator.

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

              Isaac, Wiles, Burkholder & Teetor, LLC, and Brandon L.
              Abshier, for respondent Delaware, ODOT Mail Stop 1520.


                                     IN MANDAMUS

       {¶ 10} In this original action, relator, Stacy M. Everhart, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying a May 8, 2015 C-9 request for approval of an MRI, and to enter
an order granting the C-9.
Findings of Fact:
       {¶ 11} 1. On February 11, 2012, relator sustained an industrial injury while
employed as a snow plow operator for respondent, Ohio Department of Transportation
No. 15AP-1020                                                                                 5

("ODOT"). On that date, the snow plow she was operating slid on ice and spun off the
road into a ditch.
       {¶ 12} 2. On February 29, 2012, the Ohio Bureau of Workers' Compensation
("bureau") mailed an order allowing the claim (No. 12-307108). The claim is allowed for
sacroiliac and lumbosacral sprains, and for several conditions relating to the right elbow.
       {¶ 13} 3. On December 14, 2012, relator underwent right elbow surgery performed
by Hisham M. Awan, M.D.
       {¶ 14} 4. On February 26, 2014, relator underwent another right elbow surgery
performed by Dr. Awan.
       {¶ 15} 5. On May 1, 2014, at the bureau's request, relator was examined by
Dean W. Erickson, M.D. In his seven-page narrative report, Dr. Erickson states:
              Examination of the lumbar spine reveals no postural
              abnormalities. She has moderate tenderness in the
              paralumbar muscles on the right associated with guarding,
              but no real spasm. She has S1 joint tenderness but no sciatic
              notch tenderness. She has mild discomfort with facet
              compression, right greater than left.

       {¶ 16} 6. On July 18, 2014, relator came under the care of Kenneth Writesel, D.O.,
at Occupational Health Services.
       {¶ 17} 7. On February 13, 2015, relator was examined by Dr. Writesel. In his
hand-written office notes, Dr. Writesel notes sacroiliac joint tenderness with spasm and
reduced range of motion.
       {¶ 18} 8. On February 13, 2015, Dr. Writesel completed bureau form C-9. On the
C-9, Dr. Writesel requests a pain management consult and possible sacroiliac joint
injection.
       {¶ 19} 9. On April 13, 2015, at the bureau's request, relator was examined by
Steven A. Cremer, M.D., at North Star Orthpaedics. In his seven-page narrative report,
Dr. Cremer states:
              This individual is not at maximum medical improvement.
              Further follow up with orthopedics is anticipated to see if
              anything else can be offered and surgery is being considered
              again in the forearm. There is persistent left sacroiliac pain
              and injection should be considered as well as spine surgery
No. 15AP-1020                                                                        6

             consultation. For these reasons this individual is not at
             maximum medical improvement.

      {¶ 20} 10. On May 8, 2015, relator was examined by Dr. Writesel. On that date,
Dr. Writesel completed a C-9 requesting "MRI to Evaluate [sacroiliac] sprain,
[lumbosacral] sprain." On the C-9, Dr. Writesel wrote: "See North Star Ortho IME."
      {¶ 21} 11. In response to the C-9, the managed care organization ("MCO")
obtained a file review report from Timothy Graham, M.D., dated May 21, 2015. Dr.
Graham wrote:
             [AOR] is appealing the MCO denial of C9 dated 5/8/15
             requesting MRI to evaluate sacroiliac (SI) sprain and
             lumbosacral (LS) sprain beginning 5/8/15 through 5/30/15
             as requested by Kenneth Writesel, DO. This Injury occurred
             well over 3 years ago when the IW was plowing snow and his
             [sic] truck slid off the road. The IW followed up at
             Occupational Health Services on 5/8/15. The provider of this
             office visit is unclear as the signature is not legible and the
             service has not yet been billed. The C-9 was submitted under
             Dr. Writesel's name. The IW presented complaining of pain
             in his [sic] right elbow, left low back, and left leg. Exam
             showed decreased lumbar lordosis with spasm to the left
             lumbosacral and sacroiliac region as well as the left sciatic
             notch. Straight leg raise was noted to be positive on the left
             at 25°. There was decreased sensation to the left lateral calf,
             and decreased range of motion to all planes in the
             lumbosacral region. The provider recommended an MRI of
             the low back to evaluate the allowed sacroiliac and
             lumbosacral sprains. Per Official Disability Guidelines
             (ODD), the requested MRI may be appropriate; however
             there are no claim allowances to support the request. With
             regard to the low back, this claim is allowed for sprains of the
             lumbosacral and sacroiliac regions. Sprains are self-limiting
             soft tissue injuries, which resolve naturally over the course of
             several weeks. Medical necessity for ongoing treatment of
             sprains at more than 3 years post injury is not established.
             The treating provider has not provided sufficient supportive
             medical documentation to relate the IW's current low back
             symptoms and the requested MRI to the allowed conditions
             in this claim, which would have long since resolved. The
             request is being directed toward the evaluation of non-
             allowed pathology to the lumbosacral and sacroiliac region
             rather than the allowed conditions in this claim. Therefore it
             is my recommendation that the request remain denied.
No. 15AP-1020                                                                             7

       {¶ 22} 12. On May 26, 2015, the bureau issued an order denying the May 8, 2015
C-9 request for an MRI. The bureau order explains:
              Requested medical services are not reasonably related to, nor
              necessary for treatment of the injury, per physician review of
              Timothy Graham, M.D. dated 5/21/15. Injured Worker (IW)
              followed up at Occupational Health Services on 5/8/15. C-9
              was submitted under Dr. Writesel's name. IW presented
              complaining of pain in his right elbow, left low back, and left
              leg. Exam showed decreased lumbar lordosis with spasm to
              the left lumbosacral and sacroiliac region as well as the left
              sciatic notch. The provider recommended an MRI of the low
              back to evaluate the allowed sacroiliac and lumbosacral
              sprains. Per ODG, requested MRI may be appropriate,
              however there are no claim allowances to support the
              request. The treating provider has not provided sufficient
              supportive medical documentation to relate the Injured
              Worker's current low back symptoms and the requested MRI
              to the allowed conditions in this claim, which would have
              long since resolved. Request is being directed toward the
              evaluation of non-allowed pathology to the lumbosacral and
              sacroiliac region rather than the allowed conditions in this
              claim. Therefore, request remains denied.

       {¶ 23} 13. Relator administratively appealed the May 26, 2015 bureau order.
       {¶ 24} 14. Following a June 15, 2015 hearing, a staff hearing officer ("SHO")
granted the February 13, 2015 C-9 request for a pain management consult. The SHO did
not rule on the sacroiliac injection because it was not specifically requested. The SHO's
order of June 15, 2015 states reliance upon the April 13, 2015 report of Dr. Cremer, as well
as the February 13, 2015 treatment record of Dr. Writesel.
       {¶ 25} 15. Following a July 20, 2015 hearing, a district hearing officer ("DHO")
issued an order that vacates the May 26, 2015 bureau order and grants the MRI. The
employer administratively appealed the DHO's order of July 20, 2015.
       {¶ 26} 16. Following a September 2, 2015 hearing, an SHO issued an order that
vacates the DHO's order of July 20, 2015 and denies the request for an MRI. The SHO's
order explains:
              Authorization is denied for an MRI to evaluate the sacroiliac
              sprain and lumbosacral sprain conditions, as requested by
              Kenneth Writesel, D.O. The Staff Hearing Officer finds that
              the Injured Worker has not met her [sic] burden of proving
              that the requested diagnostic testing at issue is medically
No. 15AP-1020                                                                            8

                necessary, reasonable, and appropriate for the treatment of
                the allowed low back soft tissue conditions currently allowed
                in this 02/11/2012 industrial injury claim. The Staff Hearing
                Officer relies upon the medical report of Timothy Graham,
                M.D., dated 05/21/2015.

          {¶ 27} 17. On September 24, 2015, another SHO mailed an order refusing relator's
appeal from the SHO's order of September 2, 2015.
          {¶ 28} 18. On November 6, 2015, relator, Stacy M. Everhart, filed this mandamus
action.
Conclusions of Law:
          {¶ 29} Ohio Adm.Code 4123-6-31 is captioned "Payment for miscellaneous medical
services and supplies." Thereunder, Ohio Adm.Code 4123-6-31(F) is captioned "X-rays."
Thereunder, Ohio Adm.Code 4123-6-31(F) provides:
                Payment for x-ray examinations (including CT, MRI, and
                discogram) shall be made when medical evidence shows that
                the examination is medically necessary whether for the
                treatment of an allowed injury or occupational disease, or for
                diagnostic purposes to pursue more specific diagnoses in an
                allowed claim.

          {¶ 30} On the May 8, 2015 C-9, Dr. Writesel requested "MRI to Evaluate
[sacroiliac] sprain, [lumbosacral] sprain." There is reference to "North Star Ortho IME,"
which is an apparent reference to the April 13, 2015 report of Dr. Cremer. Nowhere in his
five-page narrative report does Dr. Cremer indicate that an MRI should be authorized.
          {¶ 31} As earlier noted, the May 8, 2015 C-9 prompted the bureau to obtain a file
review from Dr. Graham. As relator points out, Dr. Graham did not address the medical
necessity of conducting an MRI for diagnostic purposes to pursue more specific diagnoses
in an allowed claim. That is to say, Dr. Graham did not address the question of whether
an MRI was reasonably necessary to determine whether other conditions exist that might
be allowed.
          {¶ 32} Rather, Dr. Graham determined that an MRI was not medically necessary
for the treatment of the allowed conditions, i.e., the sacroiliac and lumbosacral sprains.
Dr. Graham's report and opinion is solely focused on the allowed conditions. In fact, Dr.
Graham recommended denial of the request for an MRI because the request is directed
No. 15AP-1020                                                                             9

"toward the evaluation of non-allowed pathology to the lumbosacral and sacroiliac
region."
       {¶ 33} Relying upon the report of Dr. Graham, the SHO's order of September 2,
2015 finds that relator failed to meet her burden of proving that the requested MRI at
issue "is medically necessary, reasonable, and appropriate for the treatment of the allowed
low back soft tissue conditions currently allowed." The SHO's order of September 2, 2015
does not address the question of whether an MRI is medically necessary to determine the
existence of other conditions that might be allowed in the claim.
       {¶ 34} Here, relator asserts that the commission abused its discretion in failing to
address the question of whether an MRI is medically necessary to determine the existence
of other conditions that might be allowed in the claim.
       {¶ 35} The magistrate disagrees with relator's assertion that the commission
abused its discretion.
       {¶ 36} To begin, it can be noted that, in State ex rel. Jackson Tube Servs., Inc. v.
Indus. Comm., 99 Ohio St.3d 1, 2003-Ohio-2259, the Supreme Court of Ohio recognized
the problem of the claimant not knowing what conditions to seek additional allowance for
without first undergoing surgery to obtain the diagnosis that could be the basis for an
additional claim allowance. In Jackson, the court upheld the surgical authorization.
       {¶ 37} It can be argued that Ohio Adm.Code 4123-6-31(F) applies the Jackson
rationale to an MRI request.
       {¶ 38} In mandamus, the relator must prove his or her entitlement to the writ by
clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-
Ohio-6117; see State ex rel. Stevens v. Indus. Comm., 10th Dist. No. 10AP-1147, 2012-
Ohio-4408.
       {¶ 39} Here, relator has failed to show by clear and convincing evidence that she
timely raised the issue before the bureau and the commission's hearing officers. Clearly,
the issue was not raised in the May 8, 2015 C-9 of Dr. Writesel or the report of Dr. Cremer
that is referenced in the C-9. There is no indication in the C-9 or the report of Dr. Cremer
that relator requests the MRI in order to show the existence of other conditions in the
sacroiliac and lumbosacral areas that might have been proximately caused by the
No. 15AP-1020                                                                                  10

industrial injury. Also, relator failed to submit a medical report of her own that would
support such a request.
          {¶ 40} That the claim file may contain medical evidence of relator's complaints
regarding her sacroiliac and lumbosacral areas over the years since her industrial injury
did not compel the commission to conclude that relator was seeking an MRI to show
other medical conditions in those areas that might be proximately caused by the industrial
injury.
          {¶ 41} Thus, the magistrate concludes that relator has failed to prove her
entitlement to the writ by clear and convincing evidence. That is, relator has failed to
show that the issue she endeavors to raise here was administratively raised before the
commission or the bureau. Stevens.
          {¶ 42} Accordingly, for all the above reasons, 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).
