[Cite as State ex rel. Carlisle Brake & Friction v. Codney, 2016-Ohio-7866.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Carlisle Brake & Friction : 

(Friction Products Co.), 

 : 

 Relator, 

 : No. 15AP-1006 

v. 

 : (REGULAR CALENDAR) 

Joseph R. Codney, Sr. 

and Industrial Commission of Ohio, : 

 

 Respondents. : 

 

D E C I S I O N 

Rendered on November 22, 2016

 

On brief: Roetzel & Andress, Robert E. Blackham, 

Timothy J. Webster, and Marcus A. Pringle, for relator. 

On brief: Michael DeWine, Attorney General, and John R. 

Smart, for respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

ON OBJECTION TO THE MAGISTRATE'S DECISION 

LUPER SCHUSTER, J. 

{¶ 1} Relator, Carlisle Brake & Friction (Friction Products Co.) ("Carlisle"), 

initiated this original action requesting a writ of mandamus ordering respondent 

Industrial Commission of Ohio ("commission") to vacate the April 6, 2015 order of its 

staff hearing officer ("SHO") that grants the form C-9 request for "TENS unit" medical 

supplies filed by respondent Joseph R. Codney, Sr. on January 7, 2015, and to enter an 

order denying that request.

{¶ 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 who issued the appended decision, 
No. 15AP-1006 2 

which includes findings of fact and conclusions of law. The magistrate concluded that the 

commission did not abuse its discretion in granting Codney's form C-9 request to receive 

TENS unit medical supplies because the form C-9 itself provides some evidence in 

support of the order. Thus, the magistrate recommends this court deny Carlisle's request 

for a writ of mandamus.

{¶ 3} Carlisle has filed the following objection to the magistrate's decision:

The Magistrate's reliance on the December 20, 2014, C-9 as 

constituting "some evidence" supporting the April 6, 2015, 

order is misplaced.

{¶ 4} Carlisle's objection lacks merit. In order for this court to issue a writ of 

mandamus as a remedy from a determination of the commission, the relator must show a 

clear legal right to the relief sought, the commission has a clear legal duty to provide such 

relief, and there is no plain and adequate remedy in the ordinary course of the law. 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). However, 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). 

{¶ 5} The form C-9 that Codney submitted on January 7, 2015, was completed by 

physician David Krahe, D.O., on October 20, 2014,1 and seeks reimbursement for the 

requested TENS unit medical supplies. At issue is whether that form, standing alone, 

constitutes some evidence in support of the SHO's order granting Codney's request for 

authorization to receive those supplies. 

{¶ 6} This court recently determined that a completed form C-9 constitutes a 

physician's certification and medical opinion that the requested services are reasonably 

related to the allowed conditions identified on the form and reasonably necessary for 

treatment of those conditions. State ex rel. Cooper Tire & Rubber Co. v. Bowers, 10th 

 

1 The magistrate's decision states that this form C-9 was completed on December 20, 2014, but it was 

actually completed on October 20, 2014. 
No. 15AP-1006 3 

Dist. No. 14AP-331, 2015-Ohio-2240, ¶ 53-54. Although form C-9 does not include an 

express statement of this relation and necessity, such findings are implicit in a completed 

form C-9 identifying the allowed conditions as the basis for the request. See Bowers at 

¶ 53. Here, Dr. Krahe listed within the "treating diagnosis" section of the form C-9 the 

ICD-9 code numbers that correspond to the allowed conditions. Thus, the form C-9 

reflects Dr. Krahe's certification and medical opinion that the requested medical supplies 

are reasonably necessary and related to the allowed conditions of the claim. See id. 

Consistent with this court's decision in Bowers, we agree with the magistrate's 

determination that the form C-9 that Dr. Krahe completed, standing alone, provides some 

evidence in support of the SHO's order. Therefore, we find Carlisle's objection to the 

magistrate's decision to be meritless. 

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

find the magistrate correctly determined that Carlisle is not entitled to the requested writ 

of mandamus. The magistrate properly determined the facts and applied the pertinent 

law to the salient facts. Therefore, we adopt the magistrate's decision as our own, 

including the findings of fact (with the typographical correction noted above) and 

conclusions of law contained therein. Accordingly, we overrule Carlisle's objection to the 

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

Objection overruled; 

writ of mandamus denied.

TYACK and KLATT, JJ., concur. 

 

 
No. 15AP-1006 4 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Carlisle Brake & Friction : 

(Friction Products Co.) 

 : 

 Relator, 

 : 

v. No. 15AP-1006 

 : 

Joseph R. Codney, Sr. (REGULAR CALENDAR) 

and : 

Industrial Commission of Ohio, 

 : 

 Respondents. 

 : 

 

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

Rendered on July 25, 2016

 

Roetzel & Andress, Robert E. Blackham, Timothy J. Webster, 

and Marcus A. Pringle, for relator. 

Michael DeWine, Attorney General, and John R. Smart, for 

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 8} In this original action, relator, Carlisle Brake & Friction (Friction Products 

Co.) (hereinafter relator or Carlisle), requests a writ of mandamus ordering respondent 

Industrial Commission of Ohio ("commission"), to vacate the April 6, 2015 order of its 

staff hearing officer ("SHO") that grants the January 7, 2015 motion and C-9 request for 

authorization of TENS unit supplies that was filed by respondent, Joseph R. Codney, Sr. 

("claimant"), and to enter an order denying claimant's January 7, 2015 motion. 
No. 15AP-1006 5 

Findings of Fact: 

{¶ 9} 1. On July 29, 2005, claimant sustained an industrial injury while 

employed as a machine operator for relator, a self-insured employer under Ohio's 

workers' compensation laws. Claimant reports that he was injured while putting plates 

on a table. He lost control of one of the plates and grabbed it with his right arm to avoid 

falling. 

{¶ 10} 2. The industrial claim (No. 05-900881) is allowed for "impingement 

syndrome right shoulder; sprain/strain right trapezius muscle; neck sprain; thoracic 

sprain." 

{¶ 11} 3. On June 23, 2014, treating physician David Krahe, D.O., completed a C9 on which he requested authorization for TENS unit supplies and two leads once a 

month for six months. 

{¶ 12} 4. Dr. Krahe's June 23, 2014 C-9 prompted relator to request an 

examination by Ira J. Ungar, M.D. 

{¶ 13} 5. Following an August 13, 2014 examination, Dr. Ungar issued a fivepage narrative report dated August 20, 2014, in which he opined: 

Mr. Codney has been using a TENS unit over nearly one 

decade and suggests that it helps modify his symptoms and 

reduce his use of medication. 

It is unusual that a TENS unit would be used for the allowed 

condition in this claim of trapezius muscle sprain, which is a 

self-limited soft-tissue condition or impingement syndrome, 

which is an activity related impingement of the rotator cuff. 

In general, if the arms are not used above chest level, 

impingement of the rotator cuff, when there are only mild 

findings on MRI, would be unlikely to cause ongoing 

symptomatology. In this way, a TENS unit is not 

supportable. 

Additionally and most notably, with reference to the Official 

Disability Guidelines in the shoulder subsection under 

transcutaneous electrical nerve stimulation, it is noted that a 

use of a TENS unit is not supported by high quality medical 

studies for use in chronic shoulder symptoms. It is suggested 

only for initial conservative treatment of acute shoulder 

symptoms. 
No. 15AP-1006 6 

Therefore, based on the rationale as given above, with 

reference to the Official Disability Guidelines, there is no 

support for continued use of a TENS unit for the conditions 

that are allowed in this claim. 

(Emphasis sic.) 

{¶ 14} 6. By letter dated September 3, 2014, relator's third-party administrator, 

Spooner Incorporated, informed claimant that the C-9 was being denied based upon Dr. 

Ungar's report. 

{¶ 15} 7. On December 12, 2014, Dr. Krahe wrote: 

Joseph is a long standing patient who has a chronic rotator 

cuff tendinopathy that has been treated in the past with a 

tens unit with excellent results. He is in need of continued 

treatment with the unit and the appropriate pads. 

{¶ 16} 8. On December 20, 2014, Dr. Krahe completed another C-9 on which 

authorization was requested for "[TENS] Unit Electrodes and Pads" for a period of six 

months. 

{¶ 17} 9. The parties agree that the December 20, 2014 C-9 correctly lists the 

ICD-9 code numbers that correspond to the allowed conditions of the claim. Those code 

numbers and their corresponding conditions are (726.2) right impingement syndrome; 

(840.8) right trapezius muscle sprain; (847.0) neck sprain; (847.1) sprain thoracic 

region. No other ICD-9 code numbers are listed other than the ICD-9 codes that 

correspond to the allowed conditions of the claim. 

{¶ 18} 10. On January 7, 2015, on form C-86, claimant moved for authorization 

of "[TENS] unit and pads." In support, claimant cited to the "C9 and report from Dr. 

David H. Krahe." 

{¶ 19} 11. Following a February 23, 2015 hearing, a district hearing officer 

("DHO") issued an order granting claimant's January 7, 2015 motion. The DHO 

explained: 

It is ordered that the C-9 Request for Treatment filed 

1/7/2015 for TENS unit supplies is granted according to the 

Bureau of Workers' Compensation guidelines. 
No. 15AP-1006 7 

It has been established that the requested treatment is 

necessary for treatment of the allowed conditions in this 

claim. The Injured Worker testified that the TENS unit is 

very effective and helps to alleviate the pain in his shoulder. 

This finding is based upon the office note of David Krahe, 

D.O., dated 12/12/2014. 

All the evidence available to the Industrial Commission was 

reviewed and considered in rendering this decision. 

{¶ 20} 12. Relator administratively appealed the DHO's order of 

February 23, 2015. 

{¶ 21} 13. Following an April 6, 2015 hearing, an SHO issued an order affirming 

the February 23, 2015 order of the DHO. The SHO's order of April 6, 2015 explains: 

The C-9 Request for Medical Service Reimbursement or 

Recommendation for Additional Conditions for Industrial 

Injury or Occupational Disease, filed by the Injured Worker 

on 01/07/2015, requesting TENS unit supplies, is granted to 

the extent of this order. 

Based on the medical documentation in file from David 

Krahe, D.O., dated 12/12/2014, and the Injured Worker's 

testimony at hearing concerning the benefit he gets from the 

TENS unit and the fact that he is unable to take pain 

medications that the Injured Worker is granted the 

authorization to receive the requested TENS unit supplies. 

Said supplies are to be authorized for a six month period. 

{¶ 22} 14. On April 30, 2015, another SHO mailed an order refusing relator's 

administrative appeal from the SHO's order of April 6, 2015. 

{¶ 23} 15. On November 2, 2016, relator filed this mandamus action. 

Conclusions of Law: 

{¶ 24} The SHO's order of April 6, 2015 grants the request for TENS unit supplies 

based upon the C-9 itself, the December 12, 2014 note from Dr. Krahe, and claimant's 

hearing testimony. Undisputedly, Dr. Krahe's office note identifies a non-allowed 

condition, i.e., "chronic rotator cuff tendinopathy" that has been treated in the past with 

a TENS unit. 
No. 15AP-1006 8 

{¶ 25} The C-9 does not identify a non-allowed condition, but does correctly 

identify all the allowed conditions in the claim. 

{¶ 26} Accordingly, the issue here is whether the C-9 itself is some evidence 

supporting the SHO's order notwithstanding the SHO's reliance upon Dr. Krahe's 

December 12, 2014 note that identifies a non-allowed condition. 

{¶ 27} A claimant must always show the existence of a direct and proximate causal 

relationship between his or her industrial injury and the claimed disability. State ex rel. 

Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). Non-allowed medical conditions 

cannot be used to advance or defeat a claim for compensation. Id. 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 (1997). 

{¶ 28} While it is undisputed that "chronic rotator cuff tendinopathy" is a nonallowed condition, Bradley tells us that the mere presence of this non-allowed condition 

does not, in itself, destroy the compensability of the claim. 

{¶ 29} Here, the allowed conditions in the claim identified by Dr. Krahe in his 

December 20, 2014 C-9 can be independently causing a need for a TENS unit while the 

non-allowed rotator cuff condition also benefits from the TENS unit. 

{¶ 30} Given the above analysis, the magistrate concludes that the C-9 request 

itself provides the some evidence supporting the April 6, 2015 order of the SHO who 

granted the C-9 request for authorization of TENS unit supplies. See State ex rel. 

Cooper Tire & Rubber Co. v. Bowers, 10th Dist. No. 14AP-331, 2015-Ohio-2240. 

{¶ 31} Accordingly, it is the magistrate's decision that this court deny relator's 

request for a writ of mandamus. 

 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 
No. 15AP-1006 9 

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).