State ex rel. T.S. Trim Industries, Inc. v. Indus. Comm. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. T.S. Trim Industries, Inc. v. Indus. Comm., Slip Opinion No. 2021-Ohio-2709.]
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SLIP OPINION NO. 2021-OHIO-2709THE STATE EX REL. T.S. TRIM INDUSTRIES, INC., APPELLEE, v. INDUSTRIAL
COMMISSION OF OHIO, APPELLANT, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. T.S. Trim Industries, Inc. v. Indus. Comm., Slip
Opinion No. 2021-Ohio-2709.]
Workers’ compensation—Application of Bureau of Workers’ Compensation
formulary guidelines under Ohio Adm.Code 4123-6-21.3 and application
of Ohio Adm.Code 4123-6-21.7 to a self-insuring employer’s termination of
payment for narcotic and muscle-relaxant prescriptions for allowed
conditions pursuant to Ohio Adm.Code 4123-6-21.1(I)(4)—Court of
appeals’ judgment granting limited writ vacated—Writ granted in part.
(No. 2019-1490—Submitted May 11, 2021—Decided August 11, 2021.)
APPEAL from the Court of Appeals for Franklin County, No. 17AP-448.
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Per Curiam.
SUPREME COURT OF OHIO
{¶ 1} Appellee T.S. Trim Industries, Inc., a self-insuring employer for
workers’ compensation purposes, informed appellee and injured worker Robert
Batina that it would no longer pay for two drugs prescribed in connection with
Batina’s work injuries. Batina filed a motion asking appellant, the Industrial
Commission of Ohio, to order T.S. Trim to continue paying for his prescriptions.
The commission granted the motion and denied T.S. Trim’s request for
reconsideration. T.S. Trim petitioned the Tenth District Court of Appeals for a writ
of mandamus directing the commission to vacate its order and deny continued
reimbursement for the drugs. The Tenth District granted a limited writ, ordering
the commission to identify the reasons for its denial of reconsideration. The
commission has appealed that judgment.
{¶ 2} We vacate the Tenth District’s judgment, and we deny the writ in part
and grant it in part. Specifically, we order the commission to reconsider Batina’s
motion in light of Ohio Adm.Code 4123-6-21.3.
I.FACTS AND PROCEDURAL HISTORY
{¶ 3} Batina suffered an injury while working for T.S. Trim in 2006. His
workers’ compensation claim was allowed for shoulder and back conditions. In the
course of his treatment, Batina was prescribed Norco (an opioid pain reliever) and
Skelaxin (a muscle relaxant). As a self-insuring employer, T.S. Trim paid for these
prescription drugs. See Ohio Adm.Code 4123-6-21.1.
{¶ 4} In September 2016, T.S. Trim obtained a drug-utilization review by a
physician, which is a prerequisite to the termination of payment for current drugs
by a self-insuring employer. See Ohio Adm.Code 4123-6-21.1(I)(1). The physician
reviewer’s report stated:
Mr. Batina’s history, medical record review, and physical
exam fail to provide credible evidence to support the continued use
of narcotics (Norco) and Skelaxin for the ongoing treatment of his
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January Term, 2021
allowed conditions. Skelaxin is recommended for the acute and
short term use of muscle relaxation. There is insufficient credible
evidence to support the necessity of ongoing continued narcotics
when considering Mr. Batina’s history, medical record review, and
physical exam.
{¶ 5} Based on the physician’s review, T.S. Trim informed Batina that his
use of Norco and Skelaxin would be tapered, after which T.S. Trim would no longer
pay for those drugs. T.S. Trim stated that it was taking these actions in conformity
with Ohio Adm.Code 4123-6-21.1(I)(4), which permits a self-insuring employer to
terminate reimbursement for drugs “[w]hen the independent physician reviewer’s
report (and addendum, if applicable) indicates the drug treatment is not medically
necessary or appropriate for treatment or in the control of symptoms associated with
the allowed conditions in the claim.”
{¶ 6} On September 15, 2016, Batina filed a motion pursuant to Ohio
Adm.Code 4123-6-21.1(I)(5), in which he requested a hearing before the
commission on T.S. Trim’s decision to terminate reimbursement and deny
authorization for his continued use of Norco and Skelaxin. After an October 31,
2016 hearing, a district hearing officer (“DHO”) issued an order concluding that
the medical evidence was insufficiently persuasive to support Batina’s continued
use of Norco but sufficient to support his continued use of Skelaxin. The DHO
based the latter conclusion, in part, on the reviewing physician’s failure to account
for the symptoms that Batina might experience as a result of his allowed conditions
once he had been weaned off the narcotic.
{¶ 7} On November 3, 2016, T.S. Trim appealed the DHO’s decision for
the following reason: “Order misquotes the physician being relied upon and
improperly extends Skelaxin use.” A staff hearing officer (“SHO”) conducted a
hearing on January 26, 2017. The SHO modified the DHO’s order and granted
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Batina’s motion for continued authorization of both Norco and Skelaxin. The SHO
based his decision, in part, on the treating physician’s history of closely monitoring
Batina’s morphine-equivalent dosage of Norco to stay within Bureau of Workers’
Compensation guidelines. The SHO concluded that both Norco and Skelaxin were
“medically reasonable, necessary and appropriate” to treat Batina for the conditions
allowed, and he authorized the continued use of both drugs.
{¶ 8} On February 1, 2017, T.S. Trim appealed the SHO’s decision, stating
that the order was “contrary to [the] evidence.” The commission refused the appeal,
and the SHO’s order became final.
{¶ 9} On March 6, 2017, T.S. Trim filed a motion for reconsideration. T.S.
Trim argued, among other things, that the SHO had committed an error of law by
failing to apply Ohio Adm.Code 4123-6-21.7. That rule, which went into effect for
all claims on January 1, 2017, imposes limits on the bureau’s reimbursements for
opioid prescriptions that are used to treat injured workers. T.S. Trim also argued
that the SHO had failed to apply Ohio Adm.Code 4123-6-21.3, a rule that includes
guidelines for the bureau’s reimbursement for various drugs and classes of drugs,
including Skelaxin and other muscle relaxants. T.S. Trim argued that the SHO
should have denied continued reimbursement for both Norco and Skelaxin under
these rules.
{¶ 10} The commission denied T.S. Trim’s request for reconsideration,
stating that the request failed to meet the criteria in Industrial Commission
Resolution No. R08-1-01, i.e., that T.S. Trim had failed to establish the existence
of new and changed circumstances, fraud, a clear mistake of law or fact, or an error
rendering the SHO’s order defective. See Industrial Commission Resolutions,
Reconsiderations, No. R08-1-01 (Nov. 1, 2008), available at
https://www.ic.ohio.gov/policies/resolutions_pdfs/r08_1_01.pdf (accessed June
11, 2021) [https://perma.cc/J8BM-VGY4].
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January Term, 2021
{¶ 11} T.S. Trim filed a complaint in the Tenth District, seeking a writ of
mandamus directing the commission to (1) vacate its January 31, 2017 order
authorizing continued prescriptions of Norco and Skelaxin for Batina and (2) issue
an order denying authorization for Batina’s continued use of those drugs. The
Tenth District magistrate recommended denying the writ because T.S. Trim had
failed to timely assert the application of Ohio Adm.Code 4123-6-21.3 and 4123-6-
21.7 administratively, having raised those arguments for the first time in its motion
for reconsideration.
{¶ 12} However, the court sustained T.S. Trim’s objections to the
magistrate’s recommendation and issued a limited writ of mandamus, directing the
commission to explain why it denied T.S. Trim’s motion for reconsideration and
how its denial related to Ohio Adm.Code 4123-6-21.3 and 4123-6-21.7.
{¶ 13} The court observed that “the SHO’s order states [that the treating
physician] was monitoring Batina’s morphine-equivalent dosage to stay within [the
bureau’s] guidelines, suggesting the guidelines for treatment with opioids under
Ohio Adm.Code 4123-6-21.7 may have been addressed at the hearing before the
SHO.” (Emphasis sic.) State ex rel. T.S. Trim Industries, Inc. v. Indus. Comm.,
10th Dist. Franklin No. 17AP-448, ¶ 8 (Sept. 10, 2019). The court also concluded
that “it is unclear from the commission order denying the request for
reconsideration the reason for denial of reconsideration,” and the court issued a writ
directing the commission to explain the reason for its decision. Id. The commission
appealed the Tenth District’s judgment.
II. ANALYSIS
A. Mandamus Standard
{¶ 14} To be entitled to a writ of mandamus, T.S. Trim must establish “a
clear legal right to the relief requested, a clear legal duty on the part of the
commission * * * to provide the relief, and the lack of an adequate remedy in the
ordinary course of the law.” State ex rel. Baker v. Indus. Comm., 143 Ohio St.3d
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56, 2015-Ohio-1191, 34 N.E.3d 104, ¶ 12. Mandamus relief is appropriate if the
commission abused its discretion. State ex rel. Omni Manor, Inc. v. Indus. Comm.,
162 Ohio St.3d 264, 2020-Ohio-4422, 165 N.E.3d 273, ¶ 9-10.
B. Arguments
{¶ 15} T.S. Trim argues that the commission abused its discretion and acted
contrary to law by failing to apply Ohio Adm.Code 4123-6-21.3 and 4123-6-21.7
to Batina’s motion. It asserts that under those rules, the SHO should have denied
continued reimbursement for both Norco and Skelaxin.
{¶ 16} The commission’s merit brief focuses primarily on whether T.S.
Trim raised the applicability of the two rules administratively. The commission
also asserts that Ohio Adm.Code 4123-6-21.7 does not apply to this claim because
that rule was not in effect at the time of the drug-utilization review, the preparation
of the reports by the physician reviewer and the treating physician, the filing of
Batina’s motion, or the hearing before the DHO. Batina adopts the commission’s
arguments.
{¶ 17} In its reply brief, however, the commission admits that if the medical
opinion on which the termination of reimbursement was based had been provided
after the two rules became effective, then the commission should have applied those
rules to Batina’s motion. Specifically, the commission states:
It should be made clear that the Commission has never
claimed that the rules did not become effective on the dates that were
listed. The Commission has never claimed that it did not have the
responsibility to correctly apply the law or rules in effect. The
Commission has simply argued that it was not appropriate to apply
the “new” rules to this particular claim on January 26, 2017, because
of the timing of the events. If Trims’ * * * opinion from [the
independent physician reviewer] had taken place after January 1,
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January Term, 2021
2017, and everything else occurred in the same course of events had
been after January 1, 2017, there would have been no question that
the “new” rule(s) should have been applied.
(Emphasis added.) This statement is inconsistent with the commission’s argument
that T.S. Trim’s failure to raise the rules’ applicability during the administrative-
hearing process prevented the commission from applying those rules. In light of
the commission’s acknowledgment, we next evaluate whether Ohio Adm.Code
4123-6-21.3 and 4123-6-21.7 apply to Batina’s motion.
C. Ohio Adm.Code 4123-6-21.7 Does Not Apply to Batina’s Motion
{¶ 18} T.S. Trim terminated reimbursement for Batina’s Norco and
Skelaxin prescriptions under the applicable version of Ohio Adm.Code 4123-6-
21.1(I)(4), which provides:
When the independent physician reviewer’s report (and
addendum, if applicable) indicates the drug treatment is not
medically necessary or appropriate for treatment or in the control of
symptoms associated with the allowed conditions in the claim, the
self-insuring employer may terminate reimbursement for the
medications (by therapeutic drug class) effective as of the date of
receipt of the independent physician reviewer’s report, or addendum
if one is obtained, or in the case that a drug is in a therapeutic class
that requires a “weaning-off” period, such other date as agreed to by
the prescribing physician and self-insuring employer.
(Emphasis added.) 2015-2016 Ohio Monthly Record 2-1808. In his report, dated
September 3, 2016, the physician reviewer recommended a 60-day weaning period
for Norco followed by a three-week weaning period for Skelaxin. On September
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SUPREME COURT OF OHIO
13, T.S. Trim informed Batina that he would be tapered off Norco “within 60 days”
and then tapered off Skelaxin over a period of three weeks. It does not appear that
T.S. Trim consulted with Batina’s treating physician about the planned weaning
from these drugs.
{¶ 19} The issue before the commission, therefore, was whether T.S. Trim
properly terminated reimbursement for Norco and Skelaxin beginning in
September 2016. See Ohio Adm.Code 4121-3-18(A) and (C) (referring to
contested claims in cases involving self-insuring employers as “administrative
appeals,” i.e., appeals of the self-insuring employer’s decision). The version of
Ohio Adm.Code 4123-6-21.7 applicable to claims (like Batina’s) with a date of
injury before September 1, 2016, did not become effective until January 1, 2017.
2016-2017 Ohio Monthly Record 2-736. Therefore, that rule was not applicable to
Batina’s claim at the time T.S. Trim sought to terminate reimbursement of the
Norco and Skelaxin prescriptions under Ohio Adm.Code 4123-6-21.1(I)(4). See In
re A.J., 148 Ohio St.3d 218, 2016-Ohio-8196, 69 N.E.3d 733, ¶ 19 (rules of
statutory construction apply to regulations); R.C. 1.48 (statutes presumed
prospective unless expressly retrospective). T.S. Trim has not established that the
commission abused its discretion by failing to apply Ohio Adm.Code 4123-6-21.7
to Batina’s motion.
D. The Commission Must Reconsider Batina’s Motion in Light of Ohio
Adm.Code 4123-6-21.3
{¶ 20} Ohio Adm.Code 4123-6-21.3 and the drug formulary contained in
its appendix were both in effect in September 2016. The commission asserts that
the formulary was “updated” on January 1, 2017. However, the rule itself and the
provisions of the formulary applicable to muscle relaxants, including Skelaxin,
were substantively unchanged by that update. Compare former Ohio Adm.Code
4123-6-21.3, 2016-2017 Ohio Monthly Record 2-1527, effective January 1, 2017,
with former Ohio Adm.Code 4123-6-21.3, 2015-2016 Ohio Monthly Record 2-
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January Term, 2021
1809, effective December 1, 2015; compare former Ohio Adm.Code 4123-6-21.3
Appendix, effective January 1, 2017, with former Ohio Adm.Code 4123-6-21.3
Appendix, effective December 1, 2015.1
{¶ 21} Both versions of the formulary provide that Skelaxin (under its
generic name, metaxalone) is covered only “after a 14 day trial of another covered
skeletal muscle relaxant which resulted in a therapeutic failure or clinically
documented drug specific side effects” and that coverage for skeletal muscle
relaxants as a class is limited to 90 days, plus one additional 30-day prescription
annually, with prior authorization, although an additional year of coverage may be
possible with prior authorization in cases of spinal surgery or for adjunctive
treatment of pain. Compare former Ohio Adm.Code 4123-6-21.3 Appendix,
effective January 1, 2017, with former Ohio Adm.Code 4123-6-21.3 Appendix,
effective December 1, 2015. (Ohio Adm.Code 4123-6-21.3(F) and (G) provide
certain exceptions to the restrictions in the formulary; it is unclear from the record
whether any of these exceptions apply to Batina’s case.)
{¶ 22} The commission’s acknowledgment that it must apply rules that
were in effect at the time of the self-insuring employer’s denial of Batina’s drug
reimbursement means that the commission should have considered Ohio
Adm.Code 4123-6-21.3 in its determination of Batina’s motion. Because there is
no indication that the commission considered the application of Ohio Adm.Code
4123-6-21.3 in its review of Batina’s motion (to the contrary, the commission’s
assertion that this rule does not apply in this case indicates that it did not do so), we
1. The Appendix to each of the former versions of Ohio Adm.Code 4123-6-21.3 is not published in
the Ohio Monthly Record. However, each version of the Appendix is available through the Register
of Ohio’s website. See former Ohio Adm.Code 4123-6-21.3 Appendix, effective January 1, 2017,
available at http://www.registerofohio.state.oh.us/pdfs/4123/0/6/4123-6- 21$3_PH_FF_
A_APP1_20161222_1023.pdf (accessed June 14, 2021) [https://perma.cc/2ZTS-Q7AN]; former
Ohio Adm.Code 4123-6-21.3 Appendix, effective December 1, 2015, available at
http://www.registerofohio.state.oh.us/pdfs/4123/0/6/4123-6-21$3_PH_FF_A_APP2_20151120
_0800.pdf (accessed June 14, 2021) [https://perma.cc/J2RC-AZAC].
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SUPREME COURT OF OHIO
grant the writ in part and order the commission to reconsider the motion in light of
Ohio Adm.Code 4123-6-21.3. Accordingly, we vacate the Tenth District’s
judgment issuing a limited writ.
III. CONCLUSION
{¶ 23} In light of the foregoing, we vacate the Tenth District’s judgment,
grant the writ of mandamus in part and order the commission to reconsider Batina’s
motion in light of Ohio Adm.Code 4123-6-21.3, and otherwise deny the writ.
Judgment vacated
and writ granted in part
and denied in part.
O’CONNOR, C.J., and FISCHER, DONNELLY, STEWART, and BRUNNER, JJ.,
concur.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J.
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KENNEDY, J., concurring in part and dissenting in part.
{¶ 24} I agree that a writ of mandamus should issue and that appellant, the
Industrial Commission, should be ordered to reconsider appellee Robert Batina’s
motion for continued payment of the prescribed drugs Norco and Skelaxin in light
of Ohio Adm.Code 4123-6-21.3. But I dissent in part and would affirm the
judgment of the Tenth District Court of Appeals because the commission should
also be ordered to reconsider the motion in light of Ohio Adm.Code 4123-6-21.7.
{¶ 25} Article II, Section 28 of the Ohio Constitution, which prohibits the
passage of retroactive laws, applies to substantive laws and does not apply to laws
of a remedial nature. Kilbreath v. Rudy, 16 Ohio St.2d 70, 242 N.E.2d 658 (1968),
paragraph one of the syllabus. A law is substantive if it “creates duties, rights and
obligations.” Id. at 72. In contrast, a “procedural or remedial law prescribes the
methods of enforcement of rights or obtaining redress.” Id. A remedial law is
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January Term, 2021
“applicable to any proceedings conducted after the adoption of such laws.” State
ex rel. Holdridge v. Indus. Comm., 11 Ohio St.2d 175, 228 N.E.2d 621 (1967),
paragraph one of the syllabus.
{¶ 26} A claimant does not have a substantive right to treatment of his
injury with a particular medication. See State ex rel. Jordan v. Indus. Comm., 120
Ohio St.3d 412, 2008-Ohio-6137, 900 N.E.2d 150, ¶ 10. R.C. 4123.54 provides a
claimant with the right to treatment for his allowed conditions, but it has never
given the claimant the right to dictate the conditions of payment. Id. Rather, this
right has always been given to the administrative agency. Id., citing R.C. 4123.66.
{¶ 27} “Administrative regulations issued pursuant to statutory authority
have the force and effect of law * * *.” State ex rel. Cuyahoga Cty. Hosp. v. Ohio
Bur. of Workers’ Comp., 27 Ohio St.3d 25, 28, 500 N.E.2d 1370 (1986). And the
commission is required to follow its rules as written. State ex rel. Health Care
Facilities, Inc. v. Ohio Bur. of Workers’ Comp., 80 Ohio St.3d 642, 647, 687 N.E.2d
763 (1998).
{¶ 28} Ohio Adm.Code 4123-6-21.7 governs the Bureau of Workers’
Compensation’s reimbursement for opioid prescriptions that are used to treat a
work-related injury or occupational disease. It is a remedial, not substantive, law
and applies to any pending proceedings, beginning January 1, 2017.
{¶ 29} In this matter, the staff hearing officer (“SHO”) conducted the
hearing on Batina’s motion for continued authorization of both Norco and Skelaxin
on January 26, 2017, and considered a January 24, 2017 report from Batina’s
physician. In reviewing this matter, the SHO had a responsibility to apply Ohio
Adm.Code 4123-6-21.7 and explain how the criteria it sets forth had been met.
{¶ 30} For this reason, I would affirm the judgment of the Tenth District
and grant a writ of mandamus ordering the commission to reconsider Batina’s
motion in light of both Ohio Adm.Code 4123-6-21.3 and 4123-6-21.7.
{¶ 31} Therefore, I concur in part and dissent in part.
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SUPREME COURT OF OHIO
DEWINE, J., concurs in the foregoing opinion.
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Vorys, Sater, Seymour & Pease, L.L.P., Rosemary D. Welsh, and Emily E.
St. Cyr, for appellee T.S. Trim Industries, Inc.
Dave Yost, Attorney General, and Natalie J. Tackett, Assistant Attorney
General, for appellant.
Barkan, Meizlish, DeRose, Wentz, McInerney & Peifer, L.L.P., and Samuel
E. Marcellino III, for appellee Robert Batina.
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