State v. Industrial Commission, Unpublished Decision (9-28-1999)

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION MEMORANDUM DECISION Miller Memorial Health Care Center filed this action in mandamus seeking a writ which compels the Industrial Commission ("commission") to vacate its order permitting Nancy O. Blascak to continue receiving temporary total disability ("TTD") compensation and which compels the commission to enter a new order terminating the compensation.

In accord with Loc.R. 12(M), the case was referred to a magistrate to conduct appropriate proceedings. The parties ultimately were able to stipulate the pertinent evidence. They then provided briefs setting forth their respective positions.

In May of 1999, the magistrate issued a magistrate's decision which contains detailed findings of fact and conclusions of law. The magistrate's decision includes a recommendation that we grant a limited writ of mandamus.

Counsel for Ms. Blascak has filed objections to the magistrate's decision. The case is now before the court for a full, independent review.

Ms. Blascak has had her workers' compensation claim recognized for "lumbar sprain, central disc herniation L4-5; aggravation of pre-existing spinal stenosis at L3, L4 and L5; depressive disorder." She was injured on October 1, 1994, and she began receiving TTD compensation soon thereafter.

In May of 1997, the Ohio Bureau of Workers' Compensation ("BWC") referred the issue of her entitlement to the commission for review. The TTD compensation was continued.

In October of 1997, the BWC referred the matter to the commission again. Again, the TTD compensation was continued.

Miller Memorial Health Care Center then filed this action in mandamus.

Ms. Blascak needs surgery to improve her back problems. However, she cannot have the surgery until she has reduced her weight. The commission found that Ms. Blascak has made significant strides by losing over seventy pounds already. The magistrate could find no basis for this finding. The magistrate also faulted the failure of the commission to provide guidelines for what constitutes a reasonable weight loss program.

The record before us demonstrates that during a period of a little over two and one-half years, Ms. Blascak has lost fifty-nine pounds. She needs to lose another seventy pounds before her treating physician is comfortable performing the necessary surgery.

Although the commission may have slightly overstated the success of Ms. Blascak's efforts to lose weight, her success is still significant. She already labors under a requirement that she demonstrate both medical evidence of disability and proof of ongoing "actual, reasonable and continual weight loss" for her TTD to continue.

Under the circumstances, we believe the commission acted correctly when it continued TTD compensation under the conditions listed. We, therefore, sustain the objections to the magistrate's decision. We adopt the findings of fact contained in the magistrate's decision, but not the conclusions of law. Based upon our independent review, we deny the requested writ of mandamus.

Objections sustained; writ denied.

BRYANT and BROWN, JJ., concur.