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State ex rel American National Red Cross v. Smith10/25/2005
(REGULAR CALENDAR)
DECISION
IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION
{ } Relator, American National Red Cross, commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its order granting permanent total disability compensation to respondent-claimant, Clinton L. Smith, and to find that claimant is not entitled to said compensation.
{ } Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. (Attached as Appendix A.) In her decision the magistrate concluded the commission did not abuse its discretion in relying on the medical reports of Drs. Gurley and Nemunaitis and in concluding the surveillance evidence did not demonstrate claimant's physical capacities are greater than what he reported and demonstrated to those doctors. Accordingly, the magistrate determined the requested writ should be denied.
{ } Relator filed objections to the magistrate's conclusions of law regarding the reports of Drs. Gurley and Nemunaitis, largely rearguing those issues adequately addressed in the magistrate's decision. Although relator contends Dr. Gurley's report is not some evidence on which the staff hearing officer could rely, Dr. Gurley's report states that claimant is "permanently and totally disabled due to his residual signs and symptoms related to the specific workers' compensation injury dated February 18, 2000." (Stipulated Evidence, at 11.) Dr. Gurley's notation that claimant suffers from "chronic residual pain syndrome" does not require, as relator suggests, that the staff hearing officer conclude the doctor considered a non-allowed condition. (Stipulated Evidence, at 11.) The staff hearing officer properly could view Dr. Gurley's report as addressing a symptom caused by claimant's allowed condition, as Dr. Gurley specifically relates the pain to claimant's industrial injury.
{ } Similarly, relator contends that Dr. Nemunaitis's report is not properly considered because it refers to "residual biomechanical problems that relate to [claimant's] lumbar spine." (Stipulated Evidence, at 18.) As the commission points out, however, Dr. Nemunaitis did not assess a percentage of impairment with respect to any non-allowed condition, but estimated a five percent whole person impairment arising from the allowed condition of contusion of the back, and a 35 percent impairment from the allowed cervical conditions. Moreover, in a report that specifically lists the allowed conditions, Dr. Nemunaitis stated that claimant is "not capable of physical work activity at any capacity as relates to allowed conditions." (Stipulated Evidence, at 19.) Accordingly, relator's objections are overruled.
{ } Following an independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, we deny the requested writ of mandamus.
Objections overruled; writ denied.
BROWN, P.J., and McGRATH, J., concur.
APPENDIX A
MAGISTRATE ' S DECISION
Rendered on June 24, 2005
{ } Relator, American National Red Cross, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which granted permanent total disability ("PTD") co
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