State ex rel. Wal-Mart Stores, Inc. v. Indus. Comm. ( 2019 )

[Cite as State ex rel. Wal-Mart Stores, Inc. v. Indus. Comm., 2019-Ohio-2523.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. :
Wal-Mart Stores, Inc.,
:
Relator, No. 18AP-195
:
v. (REGULAR CALENDAR)
:
Industrial Commission of Ohio et al.,
:
Respondents.
:
D E C I S I O N
Rendered on June 25, 2019
On brief: Dawson & Associates, LLC, Shane M. Dawson,
and Jared L. Buker, for relator.
On brief: Dave Yost, Attorney General, and Natalie J.
Tackett, for respondent Industrial Commission of Ohio.
IN MANDAMUS
BROWN, J.
{¶ 1} Relator, Wal-Mart Stores, Inc., has filed an original action requesting this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission") to: (1) vacate its order denying relator's request to suspend the claim of
respondent, Bradley Dillon ("claimant"), pursuant to R.C. 4123.651(C), (2) vacate its order
in which the commission refused to exercise its continuing jurisdiction over the above
order, and (3) order the commission to suspend claimant's claim.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate of this court who issued the appended
No. 18AP-195 2
decision, including findings of facts and conclusions of law. In that decision, the
magistrate recommended this court deny relator's request for a writ of mandamus on the
basis the commission did not abuse its discretion in finding relator's medical release was
not substantially similar to that provided by the Ohio Bureau of Workers' Compensation;
the magistrate further concluded the commission did not abuse its discretion in refusing
to exercise its continuing jurisdiction over the matter. No objections have been filed to
that decision.
{¶ 3} Pursuant to this court's independent review, we adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained
therein, with the exception of the language in the magistrate's conclusions of law
regarding assumptions arising from the fact claimant was not represented by counsel. In
accordance with the magistrate's recommendation, relator's request for a writ of
mandamus is denied.
Writ of mandamus denied.
BRUNNER and NELSON, JJ., concur.
__________________
[Cite as State ex rel. Wal-Mart Stores, Inc. v. Indus. Comm., 2019-Ohio-2523.]
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. :
Wal-Mart Stores, Inc.,
:
Relator,
:
v. No. 18AP-195
:
Industrial Commission of Ohio et al., (REGULAR CALENDAR)
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on March 13, 2019
Dawson & Associates, LLC, Shane M. Dawson, and Jared L.
Buker, for relator.
Dave Yost, Attorney General, and Natalie J. Tackett, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 4} Relator, Wal-Mart Stores, Inc., has filed this original action requesting this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to (1) vacate its order denying relator's request to suspend the claim of
respondent Bradley Dillon ("claimant") pursuant to R.C. 4123.651(C), (2) to vacate its
order wherein the commission refused to exercise continuing jurisdiction over the
aforementioned order, and (3) order the commission to suspend claimant's claim.
No. 18AP-195 4
Findings of Fact:
{¶ 5} 1. According to claimant, he sustained a work-related injury on June 9,
2016 while working for relator. Claimant asserts that, while reinstalling a ceiling tile, a
small piece of insulation fell into his left eye.
{¶ 6} 2. On March 16, 2017, relator sent a letter to claimant requesting he sign
enclosed medical authorization forms and provide the names and addresses of any
medical providers who had examined him since January 2004. Specifically, that request
provides:
The law firm of Dawson & Myers, LLC represents the above-
designated employer in all matters relating to the workers'
compensation claim referenced above. Enclosed are medical
authorizations which we ask you sign and return to us,
authorizing us to obtain complete copies of the records from
Groveport Occupational Health, Eye Specialists, Inc., Dr.
Daryl Kaswinkel, M.D., and Diley Ridge Medical Center.
Also, we are including an Identification of Medical Providers
form, and we ask that you provide us with the names and
addresses of any physicians, chiropractors, hospitals, clinics,
therapists or other medical providers who have examined
and/or treated you for the period January 1, 2004, through
the present for any issues involving your eyes. Finally,
enclosed are blank authorizations which we ask you to sign
and date only.
Please return the releases and provider disclosure forms by
March 30, 2017. Thank you for your prompt attention to this
matter.
(Emphasis sic.)
Relator provided the following release for claimant to sign and return:
This will authorize you to permit Dawson & Myers, LLC or its
duly authorized representative, to examine and make copies
of my case records, inpatient and outpatient hospital or
clinic medical records, any medical records relating to
counseling, treatments and surgeries which you have
rendered to me, at any time, including, but not limited to,
emergency room records, histories, health history
questionnaires, findings, nurses notes, rehabilitation
records, x-ray films, x-ray readings and diagnosis, office
notes, progress notes, reports, all diagnostic tests results and
reports, all correspondence between physicians or attorneys
or any other records in your custody or control.
No. 18AP-195 5
The authorization to release medical information shall
remain in effect for one year. However, I understand that I
have the right to revoke this authorization at any time by
providing written notice of such revocation to the employer
or employer's representative. My decision to revoke this
authorization will be effective, except in the case that any
provider referenced above has relied on my authorization
and release of information.
I understand the provider(s) referenced above may not make
my completing and signing this authorization a condition of
my treatment.
I understand the parties I am authorizing the release of
information to are exempt from the federal privacy
requirements of the Health Insurance Portability and
Accountability Act of 1996 (HIPPA) as they administer
workers' compensation programs. Information disclosed
pursuant to this authorization may be redisclosed by them
and may no longer be protected by the federal privacy
requirements. I understand such redisclosures may include,
but are not limited to, the following:
 A copy of the medical information the employer
receives may be forwarded to BWC by the employer.
 A copy of the medical information will be available to
me or my physician of record upon request to BWC or
to the employer.
A copy of this authorization is as valid as the original.
{¶ 7} 3. When claimant did not respond, relator sent a second request for the
same information on March 30, 2017.
{¶ 8} 4. When relator did not receive a reply from claimant following the second
request, relator filed a request for suspension of the claim pursuant to R.C. 4123.651,
which provides for the suspension of a claim if a claimant, without good cause, refuses to
execute a release for medical information.
{¶ 9} 5. In a compliance letter mailed April 20, 2017, relator's motion was denied
based on the finding that the medical release submitted was not substantially similar to
the Ohio Bureau of Workers' Compensation ("BWC") medical release.
{¶ 10} 6. Relator objected to the compliance letter and the matter was heard
before a staff hearing officer ("SHO") on April 28, 2017. The SHO also denied relator's
No. 18AP-195 6
request to suspend the claim finding that relator's medical release was too broad.
Claimant alleged an injury to his left eye; however, relator's medical release was for all
medical records. Specifically, the SHO order provides:
The self-insured employer's 4/14/2017 request to suspend
the claim due to the injured worker's failure to complete the
medical release sent to him by the employer is denied based
on a finding that the release is not substantially similar to the
Administrator's release form and does not conform with R.C.
4123.651 because it is overbroad and does not limit itself to
only the issues necessary to for the administration of the
claim.
The BWC medical release, like the statute, has language that
limits the release to medical records relevant to the injuries
alleged in the worker's compensation claim. The FROI-1 in
this case indicates a claim for only an injury to the left eye.
The employer's medical release is for all medical records and
does not limit itself to medical records relevant to an alleged
injury to the eye or explain how any other medical records
are relevant to a fair adjudication of an injury to the eye or
what evidence indicates the need for medical records beyond
those to the eye. Because the medical release sent by the
employer does not conform to the statutory requirements the
request to suspend the claim is denied.
The employer's counsel argued the requirement to limit the
release to only medical records relevant to the alleged injury
is fulfilled by informing the injured worker to only list
medical providers who have treated him for the conditions or
body parts alleged to have been injured in the claim. This
argument is not found persuasive because this does not
inform the physician to limit what is released to the body
parts alleged to have been injured in the claim and it is the
physician who receives the release and supplies the medical
records and not the injured worker. It is the physician who
needs to be informed the release is limited to records
relevant to the alleged work injury because he or she may
have also treated the injured worker for other medical
conditions unrelated to the alleged worker's compensation
claim.
All the evidence was reviewed and considered.
{¶ 11} 7. Relator filed a request for reconsideration.
No. 18AP-195 7
{¶ 12} 8. In an interlocutory order mailed May 25, 2017, the commission took the
matter under advisement.
{¶ 13} 9. In the meantime, relator submitted a public records request to the
commission for documents relating to the commission's interpretation of medical releases
and/or what constitutes a medical release that is substantially similar to the BWC's
medical release.
{¶ 14} 10. The commission provided documents as requested and specifically
noted in its letter to relator that the commission determines these issues on a case-by-case
basis. Relator also requested the commission subpoena Tom Connor, the director of
adjudicatory services for the commission, to testify concerning the commission's internal
policy and practice regarding medical release forms.
{¶ 15} 11. The commission denied the subpoena. Ultimately, the commission
denied relator's request to exercise continuing jurisdiction.
{¶ 16} 12. On February 2, 2018, relator filed another request for suspension of
claimant's claim on grounds that claimant failed to appear for a medical examination.
{¶ 17} 13. After finding that claimant did not receive notice of the independent
medical examination, the commission denied relator's February 2, 2018 request to
suspend claimant's claim.
{¶ 18} 14. Relator sent claimant two more notices concerning medical
examinations; however, claimant failed to appear for either of those examinations.
{¶ 19} 15. Based on claimant's continued failure to appear for medical
examinations after sending those notices to the proper address, the commission
suspended all activity in the claim.
{¶ 20} 16. Thereafter, relator filed this mandamus action alleging that the
commission should have suspended claimant's claim for his failure to sign the medical
release, that relator contends is substantially similar to the BWC's standard medical
release, and that the commission should have exercised continuing jurisdiction to vacate
that denial as well as its denial of relator's request to subpoena commission employee,
Connor, to testify concerning his training of commission employees on what constitutes a
substantially similar medical release.
No. 18AP-195 8
Conclusions of Law:
{¶ 21} For the reasons that follow, it is this magistrate's decision that relator has
not demonstrated the commission abused its discretion when it denied relator's request to
suspend claimant's claim knowing the commission refused relator's request to exercise its
continuing jurisdiction.
{¶ 22} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 23} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 24} As an initial matter, it is undisputed that relator's initial letters to claimant
asking him to sign the medical release were mailed to the wrong address. Subsequently,
however, the commission had the opportunity to consider whether it should grant
relator's motion and suspend the claim.
{¶ 25} R.C. 4123.651(B) requires the BWC prepare a form for the release of medical
information to be signed by claimants:
The bureau of workers' compensation shall prepare a form
for the release of medical information, records, and reports
relative to the issues necessary for the administration of a
claim under this chapter. The claimant promptly shall
provide a current signed release of the information, records,
and reports when requested by the employer. The employer
No. 18AP-195 9
promptly shall provide copies of all medical information,
records, and reports to the bureau and to the claimant or his
representative upon request.
{¶ 26} Form C-101 Authorization to Release Medical Information specifically limits
the release to the workers' compensation claim and includes the date of injury. Otherwise
the language provides:
I, the above-named injured worker, understand I am
allowing the Opportunities for Ohioans with Disabilities and
the providers (persons or facilities) named here
( ) that attend or examine me to release the
following medical, psychological and/or psychiatric
information (excluding psychotherapy notes) that are related
causally or historically to physical or mental injuries relevant
to my workers' compensation claim:
 Pathology slides and immunohistochemical staining
results, if applicable;
 Hospital admission history and physical; emergency
room reports; hospital discharge summaries;
physician office notes; physical therapist,
occupational therapist or athletic trainer assessments
and progress notes; consultation reports; lab results;
medical reports; surgical reports; diagnostic reports;
procedure reports; nursing home and skilled nursing
facilities documentation; home nursing progress
notes; or other listed below.
***
I understand the provider(s) referenced above may not make
my completing and signing this authorization a condition of
my treatment.
I am authorizing the release of this information to the
following: the Ohio Bureau of Workers' Compensation
(BWC), the Industrial Commission of Ohio, the above-
named employer, the employer's managed care organization
or qualified health plan and any authorized representatives.
I understand this information is being released to the above-
referenced persons and/or entities for use in administering
my workers' compensation claim.
No. 18AP-195 10
This authorization to release medical, psychological and/or
psychiatric information shall remain in effect for as long as
my workers' compensation claim remains open under Ohio
law. I understand I have the right to revoke this
authorization at any time. However, I must submit my
revocation in writing and file it with BWC or my self-insured
employer. My decision to revoke this authorization will be
effective, except in the case that any provider referenced
above already has relied on my authorization and released
information.
I understand the parties I am authorizing the release of
information to are exempted from the federal privacy
requirements of the Health Insurance Portability and
Accountability Act of 1996 as they administer workers'
compensation programs. Information disclosed pursuant to
this authorization may be redisclosed by them and may no
longer be protected by the federal privacy requirements. I
understand such redisclosures may include but are not
limited to the following:
 A copy of the medical information the employer
receives may be forwarded to BWC by the employer;
 A copy of the medical information will be available to
me or my physician of record upon request to BWC or
to the employer.
R.C. 4123.651(C) provides for the suspension of claims as follows:
If, without good cause, an employee * * * refuses to release or
execute a release for any medical information, record, or
report that is required to be released under this section and
involves an issue pertinent to the condition alleged in the
claim, his right to have his claim for compensation or
benefits considered, if his claim is pending before the
administrator, commission, or a district or staff hearing
officer, or to receive any payment for compensation or
benefits previously granted, is suspended during the period
of refusal.
Ohio Adm.Code 4121-3-09(A)(3) provides:
The injured worker must provide, when requested, a current
signed medical release as required by division (B) of section
4123.651 of the Revised Code. Should an injured worker
refuse to provide a current signed medical release as
requested, then the claim shall be referred to the hearing
administrator so that an order suspending the claim may be
No. 18AP-195 11
placed pursuant to division (C) of section 4123.651 of the
Revised Code. Medical releases are to be executed on forms
provided by the bureau of workers' compensation, the
commission, or on substantially similar forms.
{¶ 27} Relator's release is significantly different from the medical release provided
by the BWC which specifically limits the information to the workers' compensation claim.
By comparison, the medical release relator wants claimant to sign provides in part:
This will authorize you to permit Dawson & Myers, LLC or its
duly authorized representative, to examine and make copies
of my case records, inpatient and outpatient hospital or
clinic medical records, any medical records relating to
counseling, treatments and surgeries which you have
rendered to me, at any time, including, but not limited to,
emergency room records, histories, health history
questionnaires, findings, nurses notes, rehabilitation
records, x-ray films, x-ray readings and diagnosis, office
notes, progress notes, reports, all diagnostic tests results and
reports, all correspondence between physicians or attorneys
or any other records in your custody or control.
{¶ 28} Relator's proposed release does not limit the request for medical records
solely to an injury to claimant's left eye. Instead, the release asks for any and all medical
records that have ever existed from providers. Relator contends that its cover letter which
instructs claimants to provide the medical release only to those doctors who have treated
them for their alleged workers' compensation injuries is sufficient to make its broad
medical release complaint. The magistrate disagrees.
{¶ 29} The magistrate finds this court's decision in State ex rel. Sysco Food Servs.
of Cleveland, Inc. v. Indus. Comm., 10th Dist. No. 08AP-945, 2009-Ohio-4647 helpful.
Edward Rutkowski sustained a work-related injury on February 5, 2008. His employer,
Sysco Food Services of Cleveland, Inc. ("Sysco"), through its third-party administrator
("TPA"), sent two letters to Rutkowski asking him to complete forms authorizing the
release of health information to Sysco. Apparently, Sysco was not satisfied with the
release forms and filed a motion asking to suspend the claim. Sysco had argued that the
medical releases were too restrictive. (Some information regarding how Sysco wanted
Rutkowski to complete the forms was absent from the record.) An SHO agreed with
Sysco, granted the motion to suspend the claim, and further ordered Rutkowski to
No. 18AP-195 12
provide Sysco "with an unrestricted medical release and give the employer a list of all
medical providers that have treated his back for the last ten years." Id. at ¶ 27.
{¶ 30} Rutkowski requested the commission reconsider the SHO's decision based
on a clear mistake of law. The commission exercised its continuing jurisdiction, vacated
the prior order suspending the claim, and found that Sysco's request for medical records
going back ten years was unreasonable. That order provided in pertinent part:
Specifically, the medical release authorization in question
included a request for medical documents over the past ten
(10) years, which is not in compliance with case law, State ex
rel. Lancaster Colony Corp. v. Indus. Comm., 10th Dist. No.
07AP-268, 2008 Ohio 392.
***
It is the finding of the Commission that there is no authority
under the Ohio Revised Code, the Ohio Administrative Code
or case law that allows for a claim to be suspended for failure
to execute a medical release that includes a list of all medical
providers over a ten-year period prior to the date of the
industrial injury.
Historically, the Injured Worker signed two medical release
forms, dated 02/07/2008 and 03/10/2008, prior to the
04/04/2008 medical release form request at issue today.
The two earlier release forms were signed by the Injured
Worker and provided to the Employer. However, the
Employer was not satisfied with the content of these release
forms and requested submission of a third, more expansive
medical release. This request was refused by the Injured
Worker and his legal counsel. The Staff Hearing Officer then
suspended the claim for the Injured Worker's refusal to
comply with the employer's medical release request of
04/04/2008.
First, the Commission finds that the Injured Worker has
complied with the Employer's written medical release
requests. The Employer sent two letters to the Injured
Worker, dated 02/28/2008 and 04/04/2008, respectively.
Both letters requested that the Injured Worker execute a
medical release and provide a list of doctors and their
addresses. In both letters, the Employer specifically
requested information from the Injured Worker related to
"…this injury." The Employer did not request a medical
release or medical information pertaining to the ten years
prior to the date of injury in this claim. Therefore, the
No. 18AP-195 13
Commission finds that the Injured Worker's signed releases,
dated 02/07/2008 and 03/10/2008, satisfy the Employer's
written requests.
Next, a review of R.C. 4123.651(B) and Ohio Adm.Code 4121-
3-09(A)(6) indicates that there are no definite guidelines for
what is required in the contents of the medical release.
However, under Ohio Adm.Code 4121-3-09(A)(3), "Medical
releases are to be executed on forms provided by the bureau
of workers' compensation, the commission, or on
substantially similar forms." (emphasis added) The
Commission finds that the requirement to provide "a list of
medical providers over a ten-year period prior to the Injury"
in the medical release form was not within the
contemplation of the statute or rule. Specifically, the
Commission finds that the Employer's medical release
request is not substantially similar to the Bureau of Workers'
Compensation's C-101, Authorization to Release Medical
Information, form.
Last, the Commission finds that a medical release request for
a ten year period of time, prior to the date of injury, is not
reasonable pursuant to the case of [State ex rel. Lancaster
Colony Corp. v. Indus. Comm., 10th Dist. No. 07AP-268,
2008 Ohio 392]. Therefore, the Commission finds no legal
authority exists to compel the Injured Worker to complete
such an expansive medical release form as requested by the
Employer.
(Emphasis sic.) Id. at ¶ 29.
{¶ 31} Sysco filed a mandamus action. In adopting the decision of its magistrate,
this court determined the commission did not abuse its discretion. Specifically, through
its magistrate, this court stated:
In the present case, relator contends that the commission
abused its discretion when it determined that the order
suspending claimant's claim did not comply with State ex
rel. Lancaster Colony Corp. d/b/a Pretty Prod. Inc. v.
Indus. Comm., 10th Dist. No. 07AP-268, 2008 Ohio 392.
The magistrate disagrees with relator's assertions.
In Lancaster Colony, the claimant's date of injury was
March 14, 1998. In November 2006, the claimant filed an
application for permanent total disability compensation. The
claimant had completed a medical release form; however,
the claimant refused to release social security information as
well as records covering the prior ten years in which the
No. 18AP-195 14
claimant had received any treatment for each of the alleged
symptoms and injuries upon which her claim was based.
This court found that there was no statute or rule that
required the release of information requested by the
employer. Specifically, this court adopted the decision of its
magistrate as follows:
* * * [The employer] cites no statute or rule requiring the
claimant to disclose all of her treating physicians in the
manner that relator has requested such information in this
case. While R.C. 4123.651 and the rules supplementing the
statute demand that the claimant provide a current signed
medical release, they do not require the claimant herself to
respond to relator's verbal or written requests to identify all
of her treating physicians. * * * In the absence of a statute or
administrative rule supplementing a statute that grants to
relator a clear legal right to compel from the claimant the
information that relator seeks, relator cannot obtain relief in
mandamus to compel the commission to suspend the claim
under R.C. 4123.651.
Moreover, contrary to relator's assertion, claimant's failure
to provide the information that relator seeks regarding her
treating physicians does not somehow create for relator a
clear legal right to compel claimant to execute an SSA release
form as an alternative to claimant's failure to respond to
relator's requests for information. In fact, this court has held
that there is no legal authority to compel a claimant to
execute a release for social security records. [State ex rel.]
GMRI, Inc. v. Indus. Comm., Franklin App. No. 03AP-931,
2004 Ohio 3842.
Id. at ¶ 32-33.
In Lancaster Colony, the claimant's work-related injury
occurred in 1998 and the claimant sought permanent total
disability compensation eight years later in 2006. The
employer sought the claimant's medical records for the ten
years preceding the filing of her application, which included
two years prior to the date of her injury. In the present case,
relator alleges that claimant was involved in an automobile
accident approximately three months prior to the date
claimant asserted he sustained injuries at work. In making
its argument, relator indicated that claimant's automobile
accident may very well be causing some of the current
problems which claimant alleged occurred from a work-
related injury. However, it is unclear to the magistrate how
records going back ten years prior to both the work-related
No. 18AP-195 15
injury and claimant's automobile accident are clearly
relevant to claimant's workers' compensation claim.
Id. at ¶ 34-36.
{¶ 32} In the present case, claimant was not and is not represented by counsel.
The magistrate finds it is not necessarily reasonable to assume the claimant was in a
position to properly limit the medical release provided him by relator. Further, relator is
assuming that hospital staff and doctors' office staff would likewise limit the documents
they provide exclusively to claimant's left eye. The form provided by the BWC limits the
request of medical records to the specific workers' compensation claim at issue.
{¶ 33} The magistrate finds the commission did not abuse its discretion when it
determined that relator's medical release was not substantially similar to that provided by
the BWC.
{¶ 34} Finding the commission did not abuse its discretion when it found that
relator's medical release was not substantially similar to the BWC's medical release and
denied relator's request to suspend claimant's claim, the magistrate likewise finds the
commission did not abuse its discretion when it refused to exercise its continuing
jurisdiction.
{¶ 35} A large portion of relator's argument at this time focuses on its contention
that its medical release has been accepted in the past; therefore, the commission abused
its discretion when it found that it did not substantially comply in this instance. As part of
that argument, relator contends that it should have been permitted to subpoena Collins so
relator could inquire about situations where its medical release or a similar medical
release has been accepted by the commission as well as inquire into the training hearing
officers receive on this particular issue.
{¶ 36} The magistrate finds that the commission was not required to take
testimony how hearing officers are trained to consider this issue.
{¶ 37} These cases are and must be considered on a case-by-case basis. Obviously,
a release related to an eye injury would differ from a release related to a motor vehicle
accident. In the former, one can identify the body part while in the latter, that would be
more difficult. During questing at oral argument, counsel for relator acknowledged that,
ordinarily, more records are ultimately provided, many of which are not relevant to the
claim at issue. The question then becomes who should be the gatekeeper of the
No. 18AP-195 16
information. Certainly, if it is the employer, they learn a lot more about the claimant than
they should. If it is the claimant, they may withhold information concerning a previous
injury to a certain body part. The BWC's C-101 is not perfect but it is an attempt to limit
the release of information that is relevant to the claimant's workers' compensation claim.
{¶ 38} In the present case, the commission had a claimant who was unrepresented
by counsel and an employer whose medical release was extremely broad. The magistrate
finds the commission did not abuse its discretion in this case by finding that relator's
medical release was not substantially similar to that provided by the BWC, the
commission did not abuse its discretion when it refused relator's request to subpoena
Collins, and the commission did not abuse its discretion when it refused to exercise its
continuing jurisdiction over these matters. As such, it is this magistrate's decision that
this court should deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).