[Cite as State ex rel. Costco Wholesale Corp. v. Howard, 2019-Ohio-1460.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

Costco Wholesale Corporation, 

 : 

 Relator, 

 : 

v. No. 18AP-115 

 : 

Jennifer Howard et al., (REGULAR CALENDAR) 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on April 18, 2019 

 

On brief: Frost Brown Todd LLC, Noel C. Shepard, and 

Joseph R. Sutton, for relator. Argued: Anne E. Duprey. 

On brief: Gallon, Takacs, Boissoneault & Schaffer Co., LPA, 

and Theodore A. Bowman, for respondent Jennifer Howard. 

Argued: Theodore A. Bowman.

On brief: Michael DeWine, Attorney General, and John 

Smart, for respondent Industrial Commission of Ohio. 

Argued: John Smart. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

LUPER SCHUSTER, J. 

{¶ 1} Relator, Costco Wholesale Corporation ("Costco"), initiated this original 

action requesting this court issue a writ of mandamus ordering respondent Industrial 

Commission of Ohio ("commission") to suspend the permanent total disability ("PTD") 

compensation application filed by Jennifer Howard ("claimant") because of her refusal to 

provide a signed medical release permitting disclosure of all medical records from 
No. 18AP-115 2 

treatment or examination rendered by any physician pertaining to all conditions, as well as 

a complete list of her medical providers.

{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 

and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the 

appended decision, including findings of fact and conclusions of law. The magistrate 

determined that Costco has not demonstrated that the commission abused its discretion in 

denying Costco's requests to require claimant to sign an unlimited medical release and to 

suspend claimant's PTD application because she did not sign such a release. Thus, the 

magistrate recommends this court deny Costco's request for a writ of mandamus. 

{¶ 3} Costco has filed objections to the magistrate's decision. Costco alleges the 

magistrate erroneously concluded that there is no Ohio case, statute, or rule that requires 

claimant to release the medical records requested, and the magistrate erroneously 

concluded that Costco failed to demonstrate that the commission abused its discretion in 

denying Costco's request for an unlimited medical release and suspension of the claim. 

According to Costco, Ohio law required claimant to sign a release for these records and the 

commission abused its discretion in not suspending her application for PTD compensation 

based on her refusal to sign such a release. We disagree. 

{¶ 4} PTD is defined as the inability to perform sustained remunerative 

employment. State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170 (1987). In 

determining PTD, the claimant's allowed medical conditions as well as the non-medical 

factors enumerated in Stephenson must be considered. State ex rel. Nissin Brake Ohio Inc. 

v. Indus. Comm., 127 Ohio St.3d 385, 2010-Ohio-6135, ¶ 12. If the allowed medical 

conditions, standing alone, prevent all employment, consideration of the Stephenson

factors is unnecessary. State ex rel. Galion Mfg. Div. v. Haygood, 60 Ohio St.3d 38, 39-40 

(1991). Further, non-allowed conditions cannot be used to advance or defeat a claim for 

compensation. State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). The mere 

presence of a non-allowed condition in a claim for compensation does not in itself destroy 

the compensability of the claim, but the claimant must meet his burden of showing that an 

allowed condition independently caused the disability. State ex rel. Bradley v. Indus. 

Comm., 77 Ohio St.3d 239, 242 (1997). Even if non-allowed conditions are severe, they are 

irrelevant as long as the allowed conditions are independently disabling. State ex rel. WCI 
No. 18AP-115 3 

Steel, Inc. v. Indus. Comm., 96 Ohio St.3d 24, 2002-Ohio-3315, ¶ 13. If the inability to 

work, however, is due to allowed and non-allowed conditions acting in tandem, 

compensation cannot be paid, because a claimant can never be compensated for a disability 

that is caused, in whole or part, by medical conditions that are unrelated to the industrial 

claim. State ex rel. Nissin Brake Ohio at ¶ 13, citing State ex rel. Waddle at 455, State ex 

rel. Fox v. Indus. Comm., 162 Ohio St. 569, 576 (1955). 

{¶ 5} Based on her filing of an application for PTD compensation, Ohio law 

imposed discovery requirements on claimant. Pursuant to R.C. 4123.651(A), an employer 

has a right to have a claimant examined once by a physician of the employer's choice on any 

issue asserted by the employee. Additionally, R.C. 4123.651(B) provides that 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." R.C. 4123.651(B). "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," her right to have her pending claim 

for compensation or benefits considered, or to receive any payment for compensation or 

benefits previously granted, "is suspended during the period of refusal." R.C. 4123.651(C). 

{¶ 6} Here, Costco requested a global medical release from claimant and she 

refused to sign such a release. Costco argues claimant's release of all medical records since 

the date of her injury is necessary for the administration of her claim for PTD 

compensation. While Costco acknowledges that the commission maintains discretion in 

determining which medical records must be released to the employer, it argues this 

discretion was limited in this case because the administrative record shows claimant has a 

history of medical problems unrelated to her injury that could impact her ability to work. 

Costco contends that claimant's medical history must be fully disclosed because it is 

necessary to develop the issue of whether any non-allowed condition is working in tandem 

with any allowed condition to render her unable to perform sustained remunerative 

employment. 
No. 18AP-115 4 

{¶ 7} The magistrate in this case resolved that this court's decision in State ex rel. 

Sysco Food Servs. of Cleveland v. Indus. Comm., 10th Dist. No. 08AP-945, 2009-Ohio4647, is helpful to the resolution of the issues raised by Costco's global request. Costco, 

however, argues that the magistrate placed undue reliance on Sysco. In Sysco, this court 

held that the commission did not abuse its discretion in refusing to suspend the claimant's 

claim due to his refusal to produce information pre-dating his injury by ten years because 

no statute or rule required the release of the information and because the relator failed to 

explain the relevance of the information. Id. at ¶ 9. In that case, the record indicated the 

claimant had been involved in an automobile accident a few months prior to the workrelated injury. Id. at ¶ 43. The employer initially asked for a release regarding the 

claimant's treatment for the work-related injury, and it subsequently asked the commission 

to require the claimant to provide information dating back ten years. Id. at ¶ 36. In addition 

to finding the commission did not abuse its discretion in not suspending the claimant's 

claim for failure to provide medical information pre-dating the industrial injury by ten 

years, we noted that, "[m]edical information regarding any injuries claimant sustained 

from that automobile accident are likely relevant to this action and should be disclosed to 

relator." Id. at ¶ 43. Thus, this court opined that "[i]f relator would have asked claimant to 

provide medical information and the names of treating physicians who had treated 

claimant for his back, including the treatment he received following the automobile 

accident, the result would likely be different." Id. at ¶ 43. 

{¶ 8} We agree with the magistrate that the Sysco decision is helpful in guiding the 

proper disposition of this case. As in Sysco, there is no Ohio case, statute, or rule that 

required claimant to sign the unrestrictive release Costco prepared. As Costco 

acknowledges in its briefing in support of its objections, the records required to be released 

in a particular case are fact dependent, not lending itself to blanket rules. Further, contrary 

to Costco's position that all medical records since the date of claimant's injury are necessary 

for the administration of her claim, the known existence of non-allowed conditions does 

not necessitate a claimant's global medical records release simply because those nonallowed conditions may also be debilitating. In denying Costco's request, the commission 

through its staff hearing officer ("SHO") limited the required release to the body parts in 

the claim. The SHO resolved that Costco's request for all medical records was overbroad 
No. 18AP-115 5 

and unsupported by Ohio law. This resolution of the issue was reasonable and not 

inconsistent with any case, statute, or rule governing discovery relating to a PTD 

compensation application. Certainly, the commission may, based on a reasonably limited 

information request, exercise its discretion and decide that a release of records relating to 

particular non-allowed conditions is appropriate. See Sysco. In this case, however, we find 

the commission did not abuse its discretion in not requiring claimant to comply with 

Costco's unrestricted request. 

{¶ 9} For these reasons, we find that Costco's first and second objections to the 

magistrate's decision lack merit. 

{¶ 10} Following our independent review of the record pursuant to Civ.R. 53, we find 

the magistrate correctly determined that Costco is not entitled to the requested writ of 

mandamus. The magistrate properly applied the pertinent law to the salient facts. 

Accordingly, we adopt the magistrate's decision as our own, including the findings of fact 

and conclusions of law contained therein. We therefore overrule Costco's objections to the 

magistrate's decision and deny its request for a writ of mandamus. 

Objections overruled; writ of mandamus denied. 

KLATT, P.J., and DORRIAN, J., concur. 

 

 
No. 18AP-115 6 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

Costco Wholesale Corporation, 

 : 

 Relator, 

 : 

v. No. 18AP-115 

 : 

Jennifer Howard et al., (REGULAR CALENDAR) 

 : 

 Respondents. 

 : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on August 27, 2018

 

Frost Brown Todd LLC, Noel C. Shepard, and Joseph R. 

Sutton, for relator. 

Gallon, Takacs, Boissoneault & Schaffer Co., LPA, and 

Theodore A. Bowman, for respondent Jennifer Howard. 

Michael DeWine, Attorney General, and John Smart, for 

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 11} Relator, Costco Wholesale Corporation, has filed this original action 

requesting this court issue a writ of mandamus ordering respondent Industrial 

Commission of Ohio ("commission") to suspend the application for permanent total 

disability ("PTD") compensation filed by Jennifer Howard ("claimant") because of her 

refusal to provide a signed medical release permitting disclosure of all medical 
No. 18AP-115 7 

information pertaining to non-allowed conditions and non-allowed preexisting 

conditions, as well as a complete list of medical providers. 

Findings of Fact: 

{¶ 12} 1. Claimant sustained a work-related injury on August 11, 2009 when she 

was involved in a motor vehicle accident while working as a marketing representative for 

relator. 

{¶ 13} 2. Claimant's workers' compensation claim has been allowed for the 

following conditions: 

Lumbar sprain; left knee sprain; loose body in the left knee; 

dislocation of the patella in the left knee; left knee 

arthrofibrosis; left patellar tendonitis; left knee medial 

meniscus tear status post arthroscopy repair; reflex 

sympathetic dystrophy left lower extremity; major 

depression, single episode, severe, without psychosis; anxiety 

disorder; reflex sympathetic dystrophy of the right lower 

extremity. 

{¶ 14} 3. On October 2, 2017, claimant filed an application for PTD compensation. 

{¶ 15} 4. Relator requested that claimant provide a release permitting it to obtain 

complete medical records without limiting those records requested to the allowed 

conditions in claimant's claim. In its October 27, 2017 letter from relator's counsel 

requesting a prehearing conference to address claimant's failure to execute an 

unrestricted medical release, relator argued: 

Claimant's failure to provide a full medical release limits any 

medical provider with the critical information needed to 

evaluate whether the allowed conditions in the claim are the 

underlying cause of Claimant's request for PTD. The limited 

medical release hinders the Employer's ability to collect 

records that could potentially identify disabling conditions 

unrelated to the Claimant's workers' compensation claim. 

{¶ 16} 5. The prehearing conference was held on November 14, 2017. The Toledo 

hearing administrator granted relator's request, in part, and issued a compliance letter to 

claimant directing she provide some, but not all, of the additional information requested. 

Specifically, that compliance letter provides: 

[T]he Employer's request for new medical releases is granted 

to the extent the Injured Worker is to sign a new C-101 
No. 18AP-115 8 

Medical Release and a ProMedica Release. The ProMedica 

Release is to aid in securing the documents of Ryan Szepiela, 

M.D. 

Additionally, the Injured Worker is to complete a new list of 

physicians including the name of his [sic] primary care 

physician and address. 

The C-101 is to specify "for treatment of: Lumbar Spine; Left 

and Right knees; Reflex Sympathetic Dystrophy; and 

Depression and Anxiety from 1999 to present." 

The Injured Worker is to complete the above documents by 

11/24/2017 and deliver them to the Employer's Attorney and 

copy the Industrial Commission of Ohio. 

It is further the finding of the Hearing Administrator that the 

parties must adhere to the provisions of this compliance 

letter. 

(Emphasis sic.) 

{¶ 17} 6. On November 30, 2017, relator asked the commission to suspend the 

processing of relator's PTD application under R.C. 4123.651 because claimant had not 

provided the unlimited medical record and provider list relator had requested. 

Specifically, that letter provides: 

Under Ohio law, the Employer has the right to submit medical 

evidence relating to the issue of permanent total disability 

compensation to the Commission for consideration. See 

O.A.C. §4121-3-34(C)(4)(b). That medical evidence includes 

copies of medical records, information, and reports. See 

O.A.C. §4121-3-34(C)(4)(a). When an injured worker applies 

for permanent total disability compensation, any and all 

medical conditions for which the claimant has treated become 

relevant to the processing of the application for permanent 

total disability. Under Ohio law, the Industrial Commission 

must consider whether or not non-allowed conditions or nonallowed pre-existing conditions are the proximate cause of the 

injured worker's inability to work. The Commission's 

responsibility to find out whether or not non-allowed 

conditions or non-allowed pre-existing conditions are the 

cause of permanent total disability is clearly set forth in O.A.C. 

§4121-3-34(D)(1)(h) and (i). Thus, the Commission is unable 

to carry out its statutory responsibilities of adjudicating PTD 
No. 18AP-115 9 

applications if it is not able to be made aware of non-allowed 

conditions and/or non-allowed pre-existing conditions that 

the claimant suffers from. The employer should be entitled to 

a medical release and a list of providers who have treated the 

claimant since the date of injury for both allowed and nonallowed conditions in order to submit the medical records 

from all of those providers to the Commission for 

consideration of the claimant's application. 

In the case at bar, it is known that the Injured Worker was 

awarded Social Secuirty Disability compensation in 2012 

before significant physical and psychological conditions were 

ever allowed in her claim. Therefore, she has previously 

alleged that she has been unable to work based on conditions 

that did not include her reflex sympathetic dystrophy and her 

psychological condition that is currently allowed in her claim. 

Furthermore, she may have other health conditions that are 

currently preventing sustained remunerative employment. 

The Employer must be permitted to investigate the Injured 

Worker's non-allowed conditions and non-allowed preexisting conditions in order to defend the application. Of 

course, Employer will exercise its responsibility with respect 

to filing all records that it obtains with the Industrial 

Commission for consideration. 

In the case at bar, the Injured Worker has only provided a 

signed medical release authorizing the release of medical 

information pertaining to her allowed body parts. 

Furthermore, the medical provider list that she has submitted 

only refers to providers that have treated her under the claim. 

This release does not permit the Employer to obtain medical 

records regarding non-allowed conditions and non-allowed 

pre-existing conditions that may (or may not) be the 

proximate cause of the Injured Worker's inability to work. 

R.C. §4123.651(B) provides that a claimant promptly shall 

provide a current signed release of the information, records, 

and reports when requested by the employer. The medical 

information, records, and reports that are referred to are 

those "relative to the issues necessary for the administration 

of a claim." The limited release and provider list submitted by 

the Claimant in this case does not permit Employer to obtain 

the medical information, records, and reports regarding nonallowed conditions and non-allowed pre-existing conditions 

that the Industrial Commission needs to consider when 

adjudicating the PTD application. 
No. 18AP-115 10 

R.C. §4123.651(C) provides that[:] 

If, without good cause, an employee refuses to submit to any 

examination scheduled under this chapter or refuses to 

release or execute as 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. (Emphasis added.) In the case at bar, since the 

Injured Worker has refused to provide a global release of any 

and all medical information pertaining to her treatment 

history and her medical conditions, including non-allowed 

conditions and non-allowed pre-existing conditions, and has 

failed to provide a list of providers who has treated those 

conditions, the Employer respectfully requests a suspension 

of this claim pursuant to R.C. §4123.651(C). 

(Emphasis sic.) 

{¶ 18} 7. In a compliance letter mailed December 5, 2017, the Toledo hearing 

administrator denied relator's request to suspend claimant's claim, stating: 

The suspension request is denied for the reason that the 

Injured Worker has completed the list of providers and signed 

the requested medical releases. 

Following review of the claim file and relevant evidence, it is 

the finding of the Hearing Administrator that the Employer 

has not demonstrated good cause for the relief requested. IT 

IS, THEREFORE, THE FINDING OF THE HEARING 

ADMINISTRATOR THAT THE CLAIM IS NOT 

SUSPENDED. 

If a timely objection is not filed to this compliance letter, any 

payments of compensation and/or benefits terminated by the 

Administrator or by the Self–Insuring Employer on behalf of 

the Employer's motion shall be made within fourteen (14) 

days of receipt of this compliance letter. 

An objection to the above finding may be filed with the 

Industrial Commission within fourteen (14) days of the 
No. 18AP-115 11 

receipt of this compliance letter. If a timely objection is filed, 

the Employer's motion will be scheduled for an expedited 

hearing before a Staff Hearing Officer within three (3) 

business days of the Industrial Commission's receipt of the 

objection. You may mail your objection to * * *. 

(Emphasis sic.) 

{¶ 19} 8. Relator objected to the compliance letter and asked that a hearing be 

scheduled before a staff hearing officer ("SHO"). 

{¶ 20} 9. A hearing was held before an SHO on December 21, 2017. At which time, 

relator's request for an unlimited medical release was denied, and relator's request for 

suspension of claimant's claim was likewise denied. The SHO order provides: 

The Hearing Officer finds no case law or statute which 

requires a global release for medical records is required by an 

Injured Worker nor is there an exception for an Injured 

Worker applying for permanent total disability compensation. 

An Injured Worker is required to support any requests in the 

claim, including a request for permanent total disability, with 

medical evidence relating to the allowed conditions alone. 

Additionally, physicians who evaluate an Injured Worker for 

permanent total disability, are required to opine on whether 

the allowed conditions alone are independently causing 

permanent total disability. Therefore the Hearing Officer 

finds the limitation of release of medical records to only the 

allowed body parts in the claim is upheld. The request for any 

and all medical records is found to be over-broad and 

unsupported by Ohio law. Therefore the Employer's request 

for suspension is denied. The Injured Worker is found to have 

completed the list of providers and signed the requested 

medical releases pertaining to the currently allowed 

conditions in the claim. 

{¶ 21} All the evidence was reviewed and considered. 

{¶ 22} 10. Relator's request for reconsideration was denied by order of the 

commission mailed January 26, 2018. 

{¶ 23} 11. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 24} Finding that relator has failed to demonstrate that the commission abused 

its discretion when it denied relator's request for an unlimited medical release and 
No. 18AP-115 12 

suspension of claimant's claim, it is this magistrate's decision that this court should deny 

relator's request for a writ of mandamus, as more fully explained below. 

{¶ 25} 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). 

{¶ 26} 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). 

{¶ 27} The relevant inquiry in a determination of permanent total disability is 

claimant's ability to do any sustained remunerative employment. State ex rel. 

Domjancic v. Indus. Comm., 69 Ohio St.3d 693 (1994). Generally, in making this 

determination, the commission must consider not only medical impairments but also the 

claimant's age, education, work record and other relevant non-medical factors. State ex 

rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's medical 

capacity to work is not dispositive if the claimant's non-medical factors foreclose 

employability. State ex rel. Gay v. Mihm, 68 Ohio St.3d 315 (1994). The commission 

must also specify in its order what evidence has been relied upon and briefly explain the 

reasoning for its decision. State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991).

{¶ 28} It is undisputed that claimant bears the burden of proving that the allowed 

conditions in her workers' compensation claim render her unable to return to sustained 
No. 18AP-115 13 

remunerative employment. Non-allowed conditions can neither advance nor defeat her 

claim. See State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). Because the 

social security administration found claimant disabled in 2012, before her claim was 

allowed for significant physical and psychological conditions, relator argues that claimant 

was already disabled due to non-allowed conditions before she filed her application for 

PTD compensation. Without a full release of claimant's medical records, relator argues it 

will not be able to prove that. 

{¶ 29} As an initial matter, the magistrate specifically notes that very often 

claimants who apply for PTD compensation have other medical conditions, sometimes 

rather severe ones, in addition to the allowed conditions in their workers' compensation 

claims. It is always the duty of the examining physicians to opine whether or not the 

individual claimants are disabled as a result of the allowed conditions in their claim 

without regard to the potentially disabling effects of any non-allowed conditions. It is 

then the responsibility of the commission to review the medical evidence, determine 

whether or not the physician's opinions are confined solely to the allowed conditions in 

the particular claims, and then determine whether or not those claimants are 

permanently and totally disabled based solely on the allowed conditions in the claim. 

{¶ 30} R.C. 4135.651(B) requires the Ohio Bureau of Workers' Compensation 

("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 

promptly shall provide copies of all medical information, 

records, and reports to the bureau and to the claimant or his 

representative upon request. 

{¶ 31} R.C. 4135.651(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, 
No. 18AP-115 14 

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. 

{¶ 32} Relator does not dispute that the hearing officer granted its request in part 

by requiring claimant to provide medical evidence beyond that which she had previously 

provided. Relator also does not dispute that claimant timely provided that medical 

information. Instead, relator argues that claimant's refusal to provide relator with all the 

medical information relator requested was without good cause. 

{¶ 33} The medical release which relator wanted claimant to sign specifically 

provides, in relevant part, as follows: 

Pursuant to Ohio R.C. 2317.02(B) and in compliance with 45 

CFR 164.508, and in connection with my workers' 

compensation claim, I, Jennifer Howard, hereby give my 

consent to and authorize to release any and 

all reports and records maintained by any. 

Hospital, Physician, Chiropractor, Physical/occupational 

therapist, Psychologist and/or psychiatrist, Mental health 

counselor, Imaging center, Any other treatment source, 

Pharmacy Ohio Bureau of Workers' Compensation, Social 

Security Administration, Ohio Department of Job and Family 

Services, Insurance company, Any agency of any state, county 

or municipality (including but not limited to STRS or PERS) 

or employee thereof short or long term disability plan, 

Veteran's Administration, Past or present employer. 

Regarding medical treatment, examinations or 

hospitalization or related information to my 

(former)/employer, or its legal representative, Frost Brown 

Todd LLC, * * *. This authorization includes release of 

information concerning HIV status and treatment, treatment 

of drug or alcohol abuse, drug-related conditions, alcoholism, 

and/or psychiatric/psychological conditions. 

(Emphasis sic.) 

{¶ 34} 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 
No. 18AP-115 15 

("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 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. 

{¶ 35} 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. 
No. 18AP-115 16 

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 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. 

{¶ 36} 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: 
No. 18AP-115 17 

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 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. 
No. 18AP-115 18 

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 workrelated injury. However, it is unclear to the magistrate how 

records going back ten years prior to both the work-related 

injury and claimant's automobile accident are clearly relevant 

to claimant's workers' compensation claim. 

Id. at ¶ 34-36. 

{¶ 37} As the SHO stated, there is no case law or statute which requires a global 

release for medical records. Although relator argues that, without evidence of the severity 

of claimant's non-allowed conditions, the commission will never be able to determine 

whether or not she is permanently and totally disabled based solely on the allowed 

conditions in her claim, that is exactly what the commission does on a daily basis. As 

noted earlier, rarely does a claimant applying for PTD compensation not have other 

medical conditions which may or may not be disabling. That is not the issue. No matter 

what other conditions a claimant has, it is always the burden for the claimant to prove 

that the allowed conditions independently render her unable to perform sustained 

remunerative employment. To the extent that relator asserts that claimant has not 

demonstrated good cause for not providing relator with all of her medical records 

pertaining to any medical condition for which she has suffered, the magistrate finds that 

not only is that information unnecessary, the request is extremely invasive. Relator is in 

the same position as every other employer. Relator can have claimant examined by 

physicians of its choice and those physicians will then render reports wherein they will 

opine whether or not, in their medical opinion, claimant is incapable of performing some 

sustained remunerative employment solely on the basis of the allowed conditions in the 

claim. 
No. 18AP-115 19 

{¶ 38} Furthermore, finding relator is not entitled to the global medical release 

which it seeks, the commission did not abuse its discretion when it denied relator's 

request to suspend claimant's claim. 

{¶ 39} Based on the foregoing, it is this magistrate's decision relator has not 

demonstrated that the commission abused its discretion when it denied relator's request 

for an unlimited medical release and its request to suspend claimant's claim, and 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).