State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm. (Slip Opinion)

2016 Ohio 343, 51 N.E.3d 579, 146 Ohio St. 3d 13
CourtOhio Supreme Court
DecidedFebruary 2, 2016
Docket2014-1159
StatusPublished
Cited by1 cases

This text of 2016 Ohio 343 (State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm. (Slip Opinion)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm. (Slip Opinion), 2016 Ohio 343, 51 N.E.3d 579, 146 Ohio St. 3d 13 (Ohio 2016).

Opinions

Per Curiam.

{¶ 1} Appellant, Old Dominion Freight Line, Inc., filed a complaint in the Tenth District Court of Appeals for a writ of mandamus that would require appellee the Industrial Commission of Ohio to vacate its award of permanent-total-disability compensation to appellee Robert L. Mason.

{¶ 2} The court of appeals denied the writ, concluding that Old Dominion did not have a clear legal right to the relief requested and the commission did not have a corresponding duty to provide such relief. For the reasons that follow, we affirm.

{¶ 3} Mason was injured on January 18, 2005, when he slipped on ice and broke his hip while working as a truck driver for Old Dominion. His claim was allowed for hip fracture, femur fracture, femoral neck fracture, depressive disorder, left short-leg syndrome, lumbar strain, and posttraumatic stress disorder.

{¶ 4} Mason applied for permanent-total-disability compensation in 2007, but the commission denied his application. He applied again in July 2009. Old Dominion notified the commission that it intended to submit medical evidence opposing the application. On September 22, 2009, the employer filed with the commission reports from Richard H. Clary, M.D. (psychiatrist), Oscar F. Sterle, M.D. (orthopedic surgeon), and Michael A. Murphy, Ph.D. (psychologist), who had all examined the claimant on behalf of the employer.

{¶ 5} The commission scheduled independent medical exams for Mason with William R. Fitz, M.D. (for his physical injuries) and with John M. Malinky, Ph.D. (for psychological injuries). On September 23, 2009, the commission mailed Dr. Fitz a confirmation of an October 7 appointment along with a copy of Mason’s medical records, but it did not forward the reports that had been filed by Old Dominion. On October 5, 2009, the commission sent a similar confirmation to Dr. Malinky confirming an October 21 appointment.

{¶ 6} When Old Dominion learned that neither Dr. Fitz nor Dr. Malinky had received the medical reports it submitted, Old Dominion asked to depose the doctors. The commission denied the requests. Instead, the commission sent copies of the reports from Drs. Sterle, Murphy, and Clary to Dr. Malinky and asked whether the reports caused him to change his original opinion. Dr. [15]*15Malinky stated that his opinion remained the same. The commission sent the reports of Drs. Sterle and Murphy to Dr. Fitz (the report of Dr. Clary was not sent), who likewise replied that the supplemental information had not changed his opinion.

{¶ 7} The commission granted Mason’s application for permanent-total-disability compensation based on the opinions of the commission specialists, Drs. Fitz and Malinky.

{¶ 8} Old Dominion’s complaint alleged that the reports of Drs. Fitz and Malinky were flawed because the doctors did not review the reports of the employer’s medical experts before examining the claimant. Therefore, Old Dominion alleged, the award of permanent-total-disability compensation was an abuse of discretion.

{¶ 9} The court of appeals determined that it was not prejudicial to the employer for the commission to ask an examining physician who has already performed an initial physical examination to consider additional medical records when the commission, in good faith, had failed to submit all the medical records in advance. The court of appeals remanded the case to the magistrate to review remaining arguments, including the sufficiency of the medical evidence. State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm., 10th Dist. Franklin No. 11AP-350, 2012-Ohio-2403, 2012 WL 1948824 (“Old Dominion I ”).

{¶ 10} Old Dominion filed an appeal that we, sua sponte, dismissed for lack of a final, appealable order. 137 Ohio St.3d 467, 2013-Ohio-4655, 1 N.E.3d 332.

{¶ 11} On remand, a magistrate determined that based on Old Dominion I, the employer suffered no prejudice when the commission submitted its medical reports after the examinations and that Old Dominion’s request to depose the doctors was unreasonable. The magistrate also concluded that the commission did not abuse its discretion when the hearing officer stated that he “particularly note[d]” the opinions of the claimant’s doctors, Richard M. Ward, M.D., Charles B. May, D.O., and Lee Howard, Ph.D., in evaluating the credibility of the Fitz and Malinky reports.

{¶ 12} The court of appeals overruled the objections filed by Old Dominion, adopted the magistrate’s decision, and denied the request for a writ of mandamus.

{¶ 13} This matter is before the court on the appeal as of right filed by Old Dominion.

{¶ 14} To be entitled to extraordinary relief in mandamus, a relator must establish a clear legal right to the relief requested and a clear legal duty on the part of the commission to provide such relief. State ex rel. McCormick v. McDonald’s, 141 Ohio St.3d 528, 2015-Ohio-123, 26 N.E.3d 794, ¶12. Old [16]*16Dominion is entitled to a writ if it demonstrates that the commission abused its discretion by entering an order not supported by “some evidence” in the record. State ex rel. Avalon Precision Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, 846 N.E.2d 1245, ¶ 9.

{¶ 15} The commission relied on the reports of Drs. Fitz and Malinky as evidence supporting its award of permanent-total-disability compensation. Old Dominion maintains that the reports were flawed because the doctors did not review the defense medical reports in advance of their independent medical examinations. According to Old Dominion, Ohio Adm.Code 4121-3-34(0(2) mandates that the commission submit the medical evidence to its examining physicians in advance of their examinations, and the commission’s failure to do so prejudiced Old Dominion’s ability to defend against the application for permanent-total-disability benefits. Old Dominion maintains that the only reasonable way to cure this failure was to permit Old Dominion to depose each doctor.

A. Supplementing Medical Evidence after the Independent Medical Examinations Did Not Prejudice Old Dominion

{¶ 16} The commission concedes that it inadvertently failed to forward copies of the defense medical reports prior to the examinations, but maintains that it cured the oversight by submitting the reports to the examining doctors after the examinations and asking them for addendum opinions.

{¶ 17} Ohio Adm.Code 4121-3-34(C)(2) requires the commission to serve a copy of the application for permanent-total-disability benefits and supporting documents on the claimant’s employer. The employer then has 14 days to notify the commission if it intends to submit medical evidence in response. Ohio Adm.Code 4121-3-34(C)(4)(b). If so, the evidence must be filed within 60 days. Id.

{¶ 18} Ohio Adm.Code 4121-3-34(C)(5)(a) requires the claims examiner to schedule a medical examination of the injured worker and submit all relevant documents, including medical evidence from the employer, to the examining physician selected by the commission. Scheduling may not be delayed if the employer does not send a 14-day notice of intent to file its own medical evidence.

{¶ 19} Here, Old Dominion notified the commission that it intended to submit medical reports and timely filed three medical reports by the September 22, 2009 deadline. The claims examiner scheduled independent medical examinations with Drs. Fitz and Malinky, but did not send all the medical evidence in advance of the examinations.

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2016 Ohio 343, 51 N.E.3d 579, 146 Ohio St. 3d 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-old-dominion-freight-line-inc-v-indus-comm-slip-ohio-2016.