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State ex rel American Standard6/27/2002
(REGULAR CALENDAR)
DECISION
ON OBJECTIONS TO THE MAGISTRATE'S DECISION IN MANDAMUS
. Relator, American Standard, Inc., has filed an original action in mandamus requesting this court to issue a writ of mandamus to order respondent, Industrial Commission of Ohio, to vacate its order that denied relator's application to terminate temporary total disability compensation granted to claimant, Robert E. Boehler, and to enter an order terminating such compensation.
. This court referred the matter to a magistrate, pursuant to Civ.R. 53(C) and Section (M), Loc.R. 12 of the Tenth District Court of Appeals, who rendered a decision including findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate decided that a writ of mandamus should be denied.
. Relator has filed objections to the magistrate's decision. Relator objects to the magistrate's conclusion that the commission did not abuse its discretion by relying on the report of Dr. Gase to find that claimant had not reached maximum medical improvement. Relator also objects to the magistrate's conclusion that there was some evidence that claimant's activities, involving rental property he owns, did not constitute engaging in sustained remunerative employment inconsistent with the allowance of temporary total disability compensation.
. Relator is rearguing the same issues that were raised before, and decided by, the magistrate. Dr. Gase, in his August 13, 1998 report, stated that claimant's pain is too severe to allow return to work "until patient receives treatment" and that the claimant would be a candidate for rehabilitation with the goal of returning to work " f he gets treatment for his * pain." A reasonable interpretation of the report is that claimant's condition would improve with pain management treatment so that he could return to work and supports the commission's finding that claimant has not reached maximum medical improvement.
. As to relator's second objection, the magistrate correctly found that the commission, as fact finder, had some evidence from which it could conclude that claimant was involved in a passive investment based on ownership of rental properties, some of which were acquired before his injury. The photos and videos submitted by relator do not clearly demonstrate that claimant was engaged in activities inconsistent with the allowance of temporary total disability compensation.
. Upon a review of the magistrate's decision and an independent review of the file, this court overrules relator's objections and adopts the magistrate's decision as its own. The requested writ of mandamus is denied. Objections overruled, writ of mandamus denied.
BRYANT and KLATT, JJ., concur.
APPENDIX A
MAGISTRATE'S DECISION
Rendered on February 28, 2002
IN MANDAMUS
Relator, American Standard, Inc., filed this original action in mandamus asking the court to issue a writ compelling respondent Industrial Commission of Ohio to vacate its order denying termination of temporary total disability ("TTD") compensation and to issue an order terminating TTD.
Findings of Fact:
1. In April 1988, Robert E. Boehler sustained an industrial injury, and his workers' compensation claim was allowed for herniated disc at L5-S1, aggravation of lumbosacral disc disease, major depression, foot drop and cauda equina syndrome.
2. In June 1997, claimant sought reinstatement of TTD compensation, and the commission granted it based on a finding that claimant "is, once again, temporarily and totally disabled." The commission refused
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