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State ex rel Fries v. Administrator6/25/2002
(REGULAR CALENDAR)
DECISION
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
. Relator, Edward L. Fries, brings this action requesting that this court issue a writ of mandamus directing respondent Industrial Commission of Ohio ("commission"), to vacate its order denying his application for temporary total disability ("TTD") compensation, and to issue an amended order granting TTD compensation.
. On September 19, 1989, relator was injured while employed as a "Hi-Lift Operator" for respondent Tastee Apple, Inc. Relator's claim was allowed for "lumbar and thoracic subluxations; lumbar sprain/strain; aggravation of pre-existing cervical disc disease; and aggravation of pre-existing lumbar spondylolisthesis." On April 27, 1998, relator was examined by psychologist, Dr. James M. Lyall, who opined that relator's claim should be additionally allowed for: "major depressive disorder, single episode, severe without psychotic features; pain disorder associated with both psychological factors and a general medical condition, chronic; and personality disorder, mixed, with antisocial passive/aggressive features." Dr. Lyall further opined that relator should engage in psychotherapy "within a period of six months to one year." He continued, " f this individual receives appropriate mental health care there is every reason to believe that he will make significant improvement within a period of six months to one year. This is not to say that he will not need mental health treatment after that but logically we can infer that he will make a significant and maximum part of his improvement during this time period."
. On May 13, 1998, relator moved for an additional claim allowance based upon Dr. Lyall's report. In response, the commission had relator examined by its own psychologist, Dr. Thomas A. Boyd. Dr. Boyd opined that relator suffered from a major depressive disorder which he qualified as "moderate." However, he did not feel that there was evidence which medically substantiated a further allowance for the condition of pain disorder, or for the allowance of an aggravation of a pre-existing personality disorder. Dr. Boyd continued, noting that the relator was not capable of returning to his former employment, nor was he currently capable of sustained remunerative employment. However, neither he, nor Dr. Lyall, specified any definite period of temporary total disability.
. Following a December 7, 1998 hearing, relator's claim was additionally allowed for "major depressive disorder, pain disorder and aggravation of pre-existing personality disorder" based upon the report of Dr. Lyall. Thereafter, Barbara Schwartz, a licensed professional clinical counselor, certified temporary total disability from January 12, 1999, to an estimated return to work date of May 1, 1999.
. On June 9, 1999, relator moved for an award of TTD compensation based upon Ms. Schwartz's C-84 and the report of Dr. Boyd. This application was denied by a district hearing officer ("DHO") for two reasons. First, the DHO concluded that the report of Dr. Boyd was implicitly rejected in favor of the report of Dr. Lyall. Second, the DHO concluded that Ms. Schwartz is not qualified to certify the duration of a claimant's disability. Relator subsequently filed this action on June 25, 2001.
. On July 10, 2001, pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals, relator's complaint was referred to a magistrate of this court, who rendered a decision and recommendation which includes comprehensive findings of fact and conclusions of law. (Attached as Appendix A.) Specifically, the magistrate concluded that the commission erred in hol
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