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State ex rel Evans v. Industrial Commission of Ohio9/30/2002
(REGULAR CALENDAR)
DECISION
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
. Relator, Donald Evans, has filed an original action requesting this court to issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying his application for temporary total disability ("TTD") compensation and ordering the commission to issue an order finding that relator is entitled to TTD compensation.
. This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. On June 21, 2002, the magistrate issued a decision, which included findings of fact and conclusions of law, and recommended that this court deny relator's request for a writ of mandamus. (Attached as Appendix A.) Relator has filed two objections to the magistrate's decision.
. Relator argues in his first objection that he submitted medical evidence supporting his claim for TTD compensation. Relator argues in his second objection that he is entitled to TTD benefits from July 2, 1999 through the present. Because of the similarity in relator's objections, we will address them together.
. We first note that a review of relator's objections shows that he failed to object to any errors of fact or law in the magistrate's decision as required by Civ.R. 53(E)(3)(b). "Civ.R. 53(E) imposes an affirmative duty on the parties to make timely, specific objections in writing to the trial court, identifying any error of fact or law in the magistrate's decision." Huffman v. Huffman (June 21, 2000), Mahoning App. No. 98 CA 136.
. Second, the record supports the magistrate's conclusion that relator "has not demonstrated that the commission abused its discretion in finding that the medical evidence submitted by relator in support of his application for TTD compensation was not sufficient." Relator could not qualify for TTD benefits prior to April 16, 1999 based upon Dr. Peter C. Podore's examination on that date because "a doctor cannot offer an opinion on a claimant's extent of disability for a period that preceded the doctor's examination of the claimant." State ex rel. Foor v. Indus. Comm. (1997), 78 Ohio St.3d 396, 399. The record also shows that relator paid himself $500 per week thirteen times prior to July 1999. Relator was President of Roof Doctor's, Inc. at the time of the payments.
. Additionally, in order to receive TTD compensation, a claimant has the burden to prove that the inability to return to his or her former job was a direct result of an industrial injury. State ex rel. Fries v. Indus. Comm., Franklin App. No. 01AP-721, 2002-Ohio-3252, at . A review of the record supports the commission's determination "that the evidence on file is not sufficient to demonstrate that the requested periods of are related to the injury of 10-16-98." For example, Dr. Podore opined only that relator's symptoms of "severe and limiting left leg claudication * * * seemed to coincide with the injury at work."
. After an independent review of the stipulated evidence, an examination of the magistrate's decision, and due consideration of relator's objections, this court overrules relator's objections and adopts the findings of fact and conclusions of law contained in the magistrate's decision. Since the magistrate sufficiently discussed and determined the remaining issues raised by relator in his objections, further discussion is not warranted. Accordingly, relator's request for a writ of mandamus is denied.
Objections overruled; writ denied.
DESHLER and PETREE, JJ., concur.
APPENDIX A
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