[Cite as State ex rel. Lawson v. Indus. Comm., 2014-Ohio-4490.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State ex rel. Barbara Lawson,                       :

                Relator-Appellant,                  :                  No. 13AP-1075
                                                                  (C.P.C. No. 10CVH-07-10621)
v.                                                  :
                                                                  (REGULAR CALENDAR)
Industrial Commission of Ohio et al.,               :

                Respondents-Appellees.              :




                                         D E C I S I O N

                                     Rendered on October 9, 2014


                Grubb & Associates, LPA, and Natalie F. Grubb, for appellant.

                Mike DeWine, Attorney General, and Cheryl J. Nester, for
                appellee Industrial Commission of Ohio.

                  APPEAL from the Franklin County Court of Common Pleas.


BROWN, J.
        {¶ 1} Relator-appellant, Barbara Lawson, appeals from a judgment of the
Franklin County Court of Common Pleas denying her request for a writ of mandamus to
compel respondent-appellee Industrial Commission of Ohio ("commission") to vacate its
order denying temporary total disability ("TTD") compensation based on the
commission's finding that appellant had reached maximum medical improvement
("MMI").
        {¶ 2} On July 20, 2010, appellant filed a petition with the trial court for a writ of
mandamus against the commission and respondent-appellee Tada, Inc. ("Tada"). The
parties filed a joint stipulation of evidence with the trial court from which the following
facts are drawn. On July 19, 2008, appellant was injured while in the course and scope of
No. 13AP-1075                                                                              2

her employment with Tada.         Appellant filed a claim for compensation with the
commission, which was allowed for sprain thoracic region, sprain lumbar region, and
protruding disc.
       {¶ 3} In September 2009, the Ohio Bureau of Workers' Compensation ("BWC")
obtained an independent medical examination from Dr. Kirby J. Flanagan who rendered
an opinion that appellant had reached MMI. In a patient progress report prepared
September 29, 2009, appellant's then treating physician, Dr. David Wolf, opined that the
patient's condition had plateaued. On October 15, 2009, in response to an inquiry by the
BWC, Dr. Wolf indicated that appellant had reached MMI. The BWC subsequently moved
to terminate appellant's TTD compensation.
       {¶ 4} On October 27, 2009, a district hearing officer ("DHO") issued an order
terminating appellant's TTD compensation based on a determination that appellant had
reached MMI. Appellant filed an appeal from the order of the DHO, and a staff hearing
officer ("SHO") conducted a hearing on November 30, 2009. The SHO issued an order on
November 30, 2009, affirming the order of the DHO. The commission subsequently
refused appellant's further appeal.
       {¶ 5} On December 17, 2009, appellant applied for a new period of TTD
compensation beginning November 25, 2009 and continuing to January 25, 2010. On
March 11, 2010, a DHO issued an order denying the requested compensation.                On
April 22, 2010, an SHO issued an order affirming the order of the DHO, and the
commission denied appellant's further appeal.
       {¶ 6} Appellant subsequently filed her complaint for a writ of mandamus with the
trial court. In addition to the joint stipulation of evidence filed by the parties, appellant
and the commission submitted briefs to the court.            By decision and entry filed
December 2, 2013, the trial court denied appellant's request for a writ of mandamus.
       {¶ 7} On appeal, appellant sets forth the following two assignments of error for
this court's review:
              1. The Trial Court erred by affirming the Industrial
              Commission's denial of Relator's temporary total disability
              payments based upon evidence of Dr. Flannigan that Relator
              reached maximum medical improvement in conjunction with
              the opinion of one of Relator's former physicians of record
              that Relator had reached MMI.
No. 13AP-1075                                                                               3

              2. The Trial Court erred by affirming the Industrial
              Commission's failure to consider additional treatments
              requested by Relator's physician, the Relator's physician's
              determination Claimant had not reached MMI, and the
              Industrial Commission[']s reliance on the res judicata "effect"
              of the prior MMI determination.

       {¶ 8} Appellant's assignments of error are interrelated and will be considered
together. Under the first assignment of error, appellant argues the trial court erred in
failing to find the commission abused its discretion in ordering termination of TTD
compensation based on a finding appellant had reached MMI.               Under the second
assignment of error, appellant contends the commission erred in denying her request for
a new period of TTD compensation (beginning November 25, 2009) by failing to consider
evidence of new and changed circumstances and by improperly giving res judicata effect
to the earlier MMI determination.
       {¶ 9} Under Ohio law, "[a] writ of mandamus will not be granted against the
Industrial Commission unless the relator shows an abuse of discretion by the commission
that creates a clear legal right to the relief sought and a clear legal duty by the commission
to afford the relief." State ex rel. Knapp v. Indus. Comm., 134 Ohio St.3d 134, 2012-Ohio-
5379, ¶ 12, citing State ex rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio St.3d 197, 198
(1986). When a decision rendered by the commission "is supported by some evidence, it
cannot be disturbed in mandamus as an abuse of discretion." State ex rel. Frazier v.
Conrad, 89 Ohio St.3d 166, 169 (2000).
       {¶ 10} In general, "[w]hen a claimant reaches maximum medical improvement,
payment of temporary total disability compensation is barred." State ex rel. Moore v.
Internatl. Truck & Engine, 116 Ohio St.3d 272, 2007-Ohio-6055, ¶ 35, citing R.C.
4123.56(A). However, the commission's continuing jurisdiction "allows for reinstatement
of temporary total disability compensation after an MMI determination if new and
changed circumstances warrant." Id. at ¶ 35.
       {¶ 11} Appellant first contends that the DHO, in the October 27, 2009 order
terminating TTD benefits, improperly relied on the MMI determination of Dr. Wolf.
According to appellant, the commission ignored the fact that appellant had completed a
No. 13AP-1075                                                                                           4

"Notice to Change Physician of Record" form, dated October 14, 2009, indicating she was
changing her physician from Dr. Wolf to Dr. Kuschnir.1
        {¶ 12} The stipulated record of evidence in this case indicates that the DHO and
SHO cited the medical reports of both Dr. Wolf and Dr. Flanagan as supporting a
determination that appellant had reached MMI.                   Dr. Flanagan, who conducted an
independent medical examination of appellant (on September 3, 2009) at the request of
the BWC, opined that appellant had reached MMI for the allowed condition.                             On
September 29, 2009, Dr. Wolf, then appellant's treating physician, indicated in a patient
progress report that the "patient's condition has plateaued," and that "[t]reatment will be
discontinued to assess patient's response to care withdrawal. Patient's condition has
stabilized with recommendation to enter vocational rehab."                   The BWC subsequently
requested that Dr. Wolf specify whether he believed appellant had reached MMI. In a
statement dated October 15, 2009, Dr. Wolf confirmed that the patient had reached MMI.
        {¶ 13} In the SHO's November 30, 2009 order, affirming the DHO's October 27,
2009 order, the SHO affirmatively relied on the independent medical examination report
of Dr. Flanagan in finding that appellant had reached MMI, citing, in part, the following
evidence:
                The Staff Hearing Officer relies on the Bureau of Workers'
                Compensation independent medical examination report of
                Dr. Flanagan dated 09/12/2009 in rendering this decision.
                Dr. Flanagan noted that the Injured Worker has had extensive
                conservative medical care including extensive chiropractic
                treatment, two rounds of physical therapy, and one round of
                aqua therapy. Dr. Flanagan opined that no other active
                treatment is medically necessary to treat the allowed
                conditions * * * and opined that the Injured Worker had
                reached maximum medical improvement.

        {¶ 14} With respect to the change of physician form submitted by appellant, the
SHO observed: "The Injured Worker had filed a change of physicians to Dr. Kuschnir
from Dr. Wolf which change of physicians never occurred. The change of physicians is
dated 10/14/2009 but was not filed by the Injured Worker into the claim file until
10/27/2009. As such, the Injured Worker's argument that Dr. Wolf was not the physician

1 We note the stipulated record of proceedings contains no medical opinion evidence offered by Dr.

Kuschnir. The record reflects that appellant's new treating physician, for purposes of the request for TTD
compensation for the period from November 25, 2009 to January 25, 2010, was Dr. Michael Viau.
No. 13AP-1075                                                                             5

of record on 10/15/2009 is not found to be persuasive." The SHO further observed that
Dr. Michael Viau "was not approved as the physician of record until 10/30/2009."
       {¶ 15} While appellant disputes the commission's reliance on Dr. Wolf's opinion
that appellant had reached MMI, appellant does not challenge the report of the
independent physician, Dr. Flanagan, who similarly opined that she had reached MMI.
The trial court, in addressing appellant's contention that the commission erred in
considering the report of Dr. Wolf, noted that appellant's argument "overlooks Dr.
Flanagan's similar report and the ability of the [commission] to have made the decision
on Dr. Flanagan's findings." Upon review, we agree with the trial court that the report of
Dr. Flanagan, standing alone, constitutes some evidence to support a finding that
appellant had reached MMI. Accordingly, the trial court did not err in failing to find the
commission abused its discretion in terminating TTD compensation on grounds that the
allowed conditions had reached MMI.
       {¶ 16} Appellant further contends, with respect to the new C-84 request for TTD
compensation beginning November 25, 2009, that the commission improperly barred
such request by giving res judicata effect to the earlier MMI determination. Appellant
argues the commission's action was in contravention of the Supreme Court of Ohio's
decision in State ex rel. Bing v. Indus. Comm., 61 Ohio St.3d 424 (1991).
       {¶ 17} In Bing, the Supreme Court "recognized that claimants who had previously
been declared as MMI could experience temporary exacerbation of their condition that
justified further treatment or even temporary total disability compensation, as the
claimant struggled to recover his or her previous level of well-being." State ex rel. Conrad
v. Indus. Comm., 88 Ohio St.3d 413, 415-16 (2000), citing Bing. Thus, "a temporary
worsening, or flare-up, of a claimant's condition can warrant renewed temporary total
disability compensation as the claimant struggles to return to the former baseline." State
ex rel. Barnes v. Indus. Comm., 114 Ohio St.3d 444, 2007-Ohio-4557, ¶ 15, citing Bing at
427. However, "[a] mere increase in treatment or change in the treatment method does
not * * * automatically compel renewed temporary total compensation," and "[i]ncreased
or different treatment does not automatically establish that the claimant's condition has
worsened." Id. at ¶ 15.
       {¶ 18} In the instant case, the trial court addressed appellant's res judicata
argument, finding the facts of Bing, in which "there was a documented temporary flare-
No. 13AP-1075                                                                             6

up," to be distinguishable from appellant's circumstances. The trial court further noted
that the SHO "had the prior medical records and the new MRI to rely upon" in concluding
there had been no change in circumstances; the court also observed that the SHO had
evidence that "the new treatment" advanced by appellant to show she had not reached
MMI "was in fact treatment for an injury that had not been allowed at the time of the
decision." Finally, the trial court found "no evidence that the SHO failed to review the
medical records and arguments," and "no evidence that the SHO just accepted the
decision based on the prior determination to end TTD."
       {¶ 19} Based on this court's review, we agree with the trial court's determination
that the commission did not ignore the evidence presented, nor did the commission deny
the renewed request for TTD compensation by improperly giving res judicata effect to the
prior MMI determination. The stipulated record indicates that the DHO, in denying
appellant's request for a new period of TTD, addressed the issue of new and changed
circumstances, noting that the injured worker changed physicians (to Dr. Viau, effective
November 25, 2009) and "received three epidural injections, which were of no benefit to
the Injured Worker." The DHO further noted that, although appellant testified that Dr.
Viau "is suggesting that she undergo fusion at the L4 level," the DHO "does not find that
any C-9 has been submitted thereby requesting surgical intervention." In affirming the
order of the DHO, the SHO addressed appellant's contention that her new physician, Dr.
Viau, had recommended surgery, noting that a "review of Dr. Viau's treatment records
reflects that while surgery is an option, it is not presently recommended." The SHO
further noted that the "04/19/2010 treatment record of Dr. Viau concurs with the second
opinion obtained from Dr. Donich," a neurosurgeon, that appellant pursue surgery only as
a last resort and that Dr. Viau indicated "that conservative treatment was recommended."
Finally, the SHO found it "significant" that the treatment records of Dr. Viau "reflect that
he is also treating [appellant] for disc pathology at the L5-S1 level" and that "[n]o
condition involving the L5-S1 level is presently recognized in this claim."
       {¶ 20} Here, appellant's contention that the commission ignored the evidence
presented, and merely based its denial of the request for new TTD compensation on the
prior determination of MMI, is not supported by the record. Accordingly, the trial court
did not err in its determination that appellant failed to demonstrate an abuse of discretion
by the commission nor a clear legal right to the requested writ of mandamus.
No. 13AP-1075                                                                       7

      {¶ 21} Based on the foregoing, appellant's first and second assignments of error
are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
                                                                  Judgment affirmed.

                  SADLER, P.J., and LUPER SCHUSTER, J., concur.

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