State ex rel. Mignella v. Indus. Comm. (Slip Opinion)
State ex rel. Mignella v. Indus. Comm. (Slip Opinion)
Opinion
*846 *251 {¶ 1} Appellant, Mary Mignella, filed an application for permanent-total-disability ("PTD") benefits with appellee Industrial Commission. A staff hearing officer ("SHO") for the commission determined that the application could not be adjudicated until Mignella submitted to a second medical examination by a commission specialist. Mignella refused, reasoning that because she had already been examined once by a commission specialist, she could not be required to *252 submit to a second examination. Following Mignella's refusal, the SHO suspended her application.
{¶ 2} Mignella filed a complaint in the Tenth District Court of Appeals seeking a writ of procedendo ordering the commission to proceed with its adjudication of her application. The court of appeals denied the writ. Mignella has appealed to this court and filed a motion for oral argument. For the reasons that follow, we deny the motion for oral argument and affirm the court of appeals' judgment.
FACTS AND PROCEDURAL BACKGROUND
Commission proceedings
{¶ 3} Mignella filed with the commission an application for PTD benefits. In support of the application, Mignella included a report from her treating chiropractor that stated that Mignella was incapable of work. At the commission's request, Mignella was then examined by Elizabeth Mease, M.D. Dr. Mease reported that Mignella can perform "light physical demand activities" but that "[s]he cannot sit or stand longer than 15 to 20 minutes at a time."
{¶ 4} Mignella later took Dr. Mease's deposition. During that deposition, Dr. Mease admitted to making mistakes in her examination of Mignella; specifically, she did not examine Mignella according to the American Medical Association's ("AMA") guidelines. Because of Dr. Mease's mistakes, an SHO issued an interlocutory order referring the application back to the commission to schedule Mignella for a second examination. The order provided that after the examination had been performed, Mignella's file would be "processed in the ordinary manner."
{¶ 5} After Mignella did not attend the scheduled examination, an SHO issued an order suspending her application "until such time as the Injured Worker appears for a medical examination by a physician of the Industrial Commission's choice."
Court-of-appeals proceedings
{¶ 6} After the SHO issued the order suspending her application, Mignella filed an original action in the court of appeals for a writ of procedendo ordering the commission to adjudicate her application. The court of appeals referred Mignella's action to a magistrate, who issued a decision recommending that the court deny the writ. Mignella filed objections to the magistrate's decision, arguing, among other things, that the commission could not require her to submit to a second medical examination. The court of appeals overruled her objections and adopted the magistrate's findings of fact and conclusions of law. Mignella then filed this appeal.
*253 ANALYSIS
The procedendo standard
{¶ 7}
A writ of procedendo is an extraordinary remedy in the form of an
*847
order from a higher tribunal directing a lower tribunal to proceed to judgment.
Bertolino v. Indus. Comm.
,
The commission's power to require a claimant to submit to a medical examination and suspend review of the claimant's application pending the examination
{¶ 8} Mignella argues in her sole proposition of law that because she has already been examined once by a commission specialist, the commission cannot require her to submit to a second examination simply because the specialist who first examined her did not comply with the AMA's guidelines. To properly evaluate this argument, the commission's statutory and regulatory powers must be considered alongside the caselaw.
{¶ 9} The commission has authority to "require any employee claiming the right to receive compensation to submit to a medical examination * * * at any time, and from time to time, at a place reasonably convenient for the employee, and as provided by the rules of the commission or the administrator of workers' compensation." R.C. 4123.53(A). See also Ohio Adm.Code 4121-3-09(A)(5) (the commission may "at any point in the processing of an application for benefits, require the injured worker to submit to a physical examination"). If the employee refuses to submit to or obstructs the examination, the employee's claim for compensation "is suspended during the period of the refusal or obstruction." R.C. 4123.53(C). Accord Ohio Adm.Code 4121-3-12.
{¶ 10}
In
State ex rel. Clark v. Indus. Comm.
,
{¶ 11}
Decisions from the court of appeals offer instances in which the commission acted properly in ordering a claimant to submit to additional medical examinations. For example, in
*848
State ex rel. Giel v. Indus. Comm.
, 10th Dist. Franklin No. 94APD01-96,
{¶ 12}
Another example is
State ex rel. Daniels v. CHS Greystone, Inc.
, 10th Dist. Franklin No. 11AP-394,
{¶ 13} Here, the SHO's interlocutory order observes that Dr. Mease's flawed examination of Mignella precluded an accurate determination of Mignella's PTD application. The SHO thus "referred [Mignella's application] back to the Industrial Commission for further processing * * * by scheduling [Mignella] for a new examination on the issue of permanent total disability." In light of the standards articulated in the above cases, we conclude that the order was proper because it *255 identifies why another examination of Mignella was necessary or would be helpful. And because it was proper for the commission to require Mignella to submit to another examination, it follows that the SHO acted properly in suspending consideration of Mignella's application after she refused to submit to the examination. See R.C. 4123.53(C) and Ohio Adm.Code 4121-3-12.
{¶ 14} Under these circumstances, we conclude that the court of appeals properly denied the writ. Mignella has not shown that the commission had a clear legal duty to proceed in adjudicating her application. Nor has she shown a clear legal right to require the commission to proceed. Given that Mignella has not shown a clear legal duty or a clear legal right, we need not address the adequate-remedy question.
{¶ 15}
We are unpersuaded by Mignella's arguments that the court of appeals erred by denying her complaint for a writ of procedendo. Mignella would have us reverse the judgment of the court of appeals based on alternative readings of
Clark
,
{¶ 16}
Mignella also relies on
State ex rel. Taylor v. Indus. Comm.
,
*256 {¶ 17} Mignella next argues that two administrative rules conflict on the issue whether the commission can order a claimant to submit to a second examination when a specialist fails to comply with AMA guidelines. Mignella concedes that the commission may order such an examination under Ohio Adm.Code 4121-3-09(A)(5), which provides that "[t]he commission may, at any point in the processing of an application for benefits, require the injured worker to submit to a physical examination * * * ." But she maintains that this rule is in conflict with Ohio Adm.Code 4121-3-34(A), which states that the "purpose" of Ohio Adm.Code 4121-3-34 "is to ensure that applications for compensation for [PTD] are processed and adjudicated in a fair and timely manner." Because Ohio Adm.Code 4121-3-34(A) is a specific provision dealing with the adjudication of PTD applications and Ohio Adm.Code 4121-3-09(A)(5) is a general provision dealing with the conduct of hearings, Mignella reasons that under the rules of construction, Ohio Adm.Code 4121-3-34 (the specific provision) prevails over Ohio Adm.Code 4121-3-09(A)(5) (the general provision).
{¶ 18}
This court looks to R.C. 1.51 to settle conflicts between administrative regulations.
State ex rel. Parks v. Indus. Comm.
,
{¶ 19}
Mignella's specific-versus-general argument fails because she has not identified a conflict, let alone an irreconcilable one, between the two provisions.
See
Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino
,
{¶ 20} For her last argument, Mignella claims that any ruling that permits the commission to require a claimant to submit to an additional examination simply because *850 the commission specialist erred would defeat the "fair and timely," Ohio Adm.Code 4121-3-34(A), adjudication of PTD applications. This argument is unconvincing for two reasons. First, Ohio Adm.Code 4121-3-34(A) does not prescribe a timeline for the commission to act. Indeed, the commission is empowered to suspend, and thus delay, an application when the claimant refuses to submit to an examination. See R.C. 4123.53(C) and Ohio Adm.Code 4121-3-12. Second, the delay that Mignella complains of is due in part, if not wholly, to her refusal to submit to the examination. *257 Mignella's motion for oral argument
{¶ 21}
Mignella has filed an unopposed motion under S.Ct.Prac.R. 17.02 requesting that the case be set for oral argument. "Granting oral argument in a direct appeal is subject to the court's discretion."
State ex rel. 31, Inc. v. Indus. Comm.
,
{¶ 22}
Mignella claims the case is of great public importance because of the large number of workers' compensation claims in which independent medical examinations are ordered, but she provides nothing to quantify this assertion. She also claims that this case presents complex issues of law and policy, but we find the parties' briefs and evidence sufficient to resolve this case.
See
State ex rel. Lorain v. Stewart
,
CONCLUSION
{¶ 23} For the foregoing reasons, we deny Mignella's motion for oral argument and affirm the court of appeals' denial of the writ.
Judgment affirmed.
O'Connor, C.J., and Kennedy, French, Fischer, DeWine, Donnelly, and Stewart, JJ., concur.
"Former R.C. 4123.53 (now R.C. 4123.53 [A] ) provided that '[a]ny employee claiming the right to receive compensation may be required by the industrial commission to submit himself for medical examination
at any time, and from time to time
* * * .' " (Parentheses, brackets, and emphasis sic.)
Clark
at 512,
Reference
- Full Case Name
- The State Ex Rel. MIGNELLA, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellees, Et Al.
- Cited By
- 8 cases
- Status
- Published
- Syllabus
- Workers' compensation—Permanent total disability—R.C. 4123.53(A)—Industrial commission may order additional medical examination of claimant when commission identifies why another examination is necessary or would be helpful, and claim is suspended until claimant submits to exam—Court of appeals' judgment denying writ affirmed.