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State ex rel Shetler v. Industrial Commission of Ohio6/4/2002
(REGULAR CALENDAR)
DECISION
IN MANDAMUS
. Relator, Ronald G. Shetler, Sr., has filed this original action requesting that a writ of mandamus issue against respondent Industrial Commission of Ohio.
. This court referred the matter to a magistrate, pursuant to Civ.R. 53(C) and Loc.R.12(M) of the Tenth District Court of Appeals, who issued a decision, including findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate concluded that relator had failed to demonstrate that the commission had abused its discretion and that this court should deny the requested writ.
.No objections were filed to the decision of the magistrate.
.Finding no error of law or other defect on the face of the magistrate's decision, we adopt the decision of the magistrate as our own, including the findings of fact and conclusions of law contained in it. In accordance with the decision of the magistrate, the requested writ is denied.
Writ of mandamus denied.
TYACK, P.J., and DESHLER, J., concur.
APPENDIX A
IN MANDAMUS
In this original action, relator, Ronald G. Shetler, Sr., requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order terminating temporary total disability ("TTD") compensation on grounds that the industrial injury has reached maximum medical improvement ("MMI"), and to enter an order reinstating TTD compensation.
Findings of Fact:
1. On May 3, 1997, relator sustained an industrial injury while employed as a laborer for respondent Jerry Petrowski, dba Ash-Lake Tree Removal Service. The industrial claim is allowed for: "left tibial plateau fracture; left fibular neck; shaft fracture left medial malleolar fracture; pin tract infection, left tibia; sebaceous cyst; lumbar myositis," and is assigned claim number 97-394987.
2. On March 6, 2001, relator was examined by orthopedic surgeon David A. Brys, M.D., on behalf of the Ohio Bureau of Workers' Compensation ("bureau"). In his report, Dr. Brys listed the allowed conditions. He listed "myositis" rather than "lumbar myositis." Dr. Brys' report states in part:
CHIEF COMPLAINT(S): The claimant reports that most of his problems are related now to his lower back, with radiation into the left leg. He also has complaints of tightness in the anterior left ankle with standing and walking.
*
My physical findings: * His stance, gait, alignment of the back/spine is within normal limits. There are no limitations on walking. Examination of the left lower extremity showed well-healed scars over the anterior tibia, normal alignment of the lower extremities. There is no swelling or enlargement of either ankle. Hip, knee and ankle motion were normal. The reflexes over the lower extremities were normal. Straight-leg raising was negative. There was a normal ankle examination including symmetrical motion between the two. There was no significant swelling.
*
It is my medical opinion that the injured worker has reached maximum medical improvement for the allowed conditions of the claim as noted above.
3. On April 6, 2001, the bureau moved to terminate TTD compensation based upon the report of Dr. Brys.
4. Following a May 2, 2001 hearing, a district hearing officer ("DHO") issued an order granting the bureau's motion. The DHO's order states:
The District Hearing Officer finds, based on the 3/8/01 report of Dr. Brys, that claimant reached maximum medical improvement pursuant to a medical examination or medical review o
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