relator-appellant, tradesmen international merit … [email protected] chelsea fulton...
TRANSCRIPT
IN THE SUPREME COURT OF OHIO ^sa4
STATE OF OHIO, ex rel., ,•^ ` j`'% i^Tradesmen International
On Appeal From the Franklin CountyRelator-Appellant, : County Court of Appeals
Tenth Appellate Districtvs.
Industrial Commission of Ohio andRaymond Smith,
Court of AppealsCase No. 13-AP-122
Respondents-Appellee
MERIT BRIEF OFRELATOR-APPELLANT, TRADESMEN INTERNATIONAL
Michael L. Squillace (0016824)Dinsmore & Shohl LLP191 West Nationwide Blvd., Suite 300Columbus, OH 43215Phone: (614) 628-6880Fax: (614) [email protected]
Chelsea Fulton (0086853)Philip J. Fulton Law Office89 East Nationwide Blvd., Suite 300Columbus, OH 43215Phone: (614) 224-3838Fax: (614) [email protected]
Attorneys for Relator-Appellant,Tradesmen International
s; ., .
Attorney for Respondent-Appellee,Raymond Smith
Cheryl Nester (0086853)Assistant Attorney General150 East Gay Street, 22"d FloorColumbus, OH 43215Phone: (614) 466-6696Fax: (866) [email protected]
Attorney for Respondent-Appellee,Bureau of Workers' Compensation
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TABLE OF CONTENTS
Paae
TABLE OF AUTHORITIES ........................................................................................ II
STATEMENT OF THE CASE ......................................................................................1
STATEMENT OF FACTS ....................... ..................................................... ....... ........ 2
ARGUMENT ............................................................................ .................................... 5
Proposition of Law No. I:
An award of Permanent Total Disability based solely on medicalimpairment without any consideration of disability factors must bebased on evidence that clearly establishes that the medicalimpairment alone precludes any employment ............................................. 5
CONCLUSION ............................................................................................................. 9
CERTIFICATE OF SERVICE .......... .........................................................................11
APPENDIX Appx. Page
Notice of Appeal to the Supreme Court (Apr. 30, 2014) ...:................................1
Judgment Entry of the Tenth District Court of Appeals (Mar. 20, 2014)............4
Decision of the Tenth District Court of Appeals (Mar. 20, 2014) ....................... 5
Decision of the Tenth District Court of Appeals (Aug. 14, 2013) .:...................12
TABLE OF AUTHORITIES
Paqe
State ex rel. Cleveite Elastomers v. Torok, 2002-Ohio-4770 .......................................7
State ex rel. Galion Mfg. Div. v. Haygood (1991), 60 Ohio St.3d 38 ............................8
State ex rel. Miller v. Indus. Comm., 2014-Ohio-1742 ................................................. 7
State ex rel. Owens Corning Fiberglass v. Indus. Comm., 2004-Ohio-3841 ................7
State ex rel. Stephenson v. Indus. Comm. ( 1987), 31 Ohio St.3d 167 ........................6
State ex rel. Toth v. Indus. Comm. (1997), 80 Ohio St.3d 360 ....................................7
State ex rel. Waddle v. Indus. Comm. (1993), 67 Ohio St.3d 452 ...............................6
State ex rel. Wood v. Indus. Comm. (1997), 78 Ohio st.3d 414 ................................... 7
ii
STATEMENT OF THE CASE
This case originated in the Franklin County Court of Appeals upon the filing of an
original action in mandamus by Tradesmen International (hereafter, "Appellant") against
the Industrial Commission of Ohio (hereafter, "Commission") and Raymond Smith
(hereafter, "AppelPee"), in which Appellant asserted that the Commission abused its
discretion when it granted Appellee's application for permanent total disability. A court
appointed magistrate recommended that the writ be denied. Appellant filed written
objections to this recommendation. The Court overruled these objections and issued a
decision and entry denying the Appellant's request for a writ of mandamus. Appellant
filed its appeal of right with this Court. Appellant raises only one proposition of law
regarding whether or not the medical report relied upon to support the starting date
constitutes some evidence.
1
STATEMENT OF FACTS
Appellee sustained an injury in the course of his employment with Tradesmen on
or about July 23, 2003. (Supp. at 86-7). For the most part, Respondent never returned
to his electrician job with Appellant. Over time, his claim was eventually allowed for a
disc herniation at L5-S1 for which he had surgery in 2004 (Supp. 86). His claim was
also allowed for chronic pain syndrome and adjustment disorder with depressed mood
in 2006. Id. His claim was specifically denied for L5 radiculopathy, right foot drop and a
ruptured disc at L4-5. Id.
Appellee never pursued any type of vocational rehabilitation after his 2003 injury,
despite the fact that he was only 46 years old at the time he was injured with twelve
years of schooling (Supp. pp. 5-6) (He did represent in his resume submitted to Relator
that he did graduate from high school) (Supp. p. 55). Instead, Appellee who can read
write and do math, pursued a path of disability, first with the Social Security
Administration (in 2005), then with the Industrial Commission for his 2003 injury.
On or about August 29, 2011, Appellee filed his application for permanent total
disability (Supp. pp. 5-13). In this application, the vocational factors set forth above
were enclosed, and Appellee disclosed that he ran his own HVAC business for four
years where he had to read plans and conform to the codes (Supp, p. 9). He also
supervised between three and eight employees. His prior experience was a foreman
where he did the same thing and supervised between twelve and sixteen employees
(Stip. p. 10).
This application was supported by a report from Dr. Depaz who responded to
Appellee's disability status as foilows: "I have no opinion on this issue." He later stated
2
that Respondent was limited to sedentary activities with a ten pound lifting restriction.
His opinion was that Respondent could not maintain any type of "regular" working
schedule (Supp. p. 13). Of note is the fact that Dr. Depaz is not a mental health
professional thus did not comment on the disability aspects of the allowed psychological
conditions. Moreover, Dr. Depaz did not indicate that his opinion was limited to the
allowed conditions and did not list any of the allowed conditions in his report.
Appellant had Appellee examined by Dr. Mharte, a psychiatrist who found from a
psychiatric standpoint that he had no restrictions as all his problems were related to his
physical condition (Supp. p. 44).
Appellee was also examined by Dr. Mastaw, a pain management specialist. He
indicated that Appellee could perform sedentary work (Supp. p. 49).
The Industrial Commission had Appellee examined by Dr. Orlando, a
psychologist. She rated his disability at 25 percent, then without any explanation
checked a box that stated that Appellee "is incapable of work." (Supp. pp. 28-9).
Appellee was then examined by Dr. McCormick. He noted that Appellee weighed
389 pounds and was walking with a cane. No lumbar range of motion studies were
done. He rated Appellee's impairment at 24 percent (Supp. p. 35). He, too, checked a
box which indicated that Appellee was "incapable of work." (Supp. p. 37). He later
issued an "Addendum" in which he simply set forth Appellee's symptoms and his
conclusions (Supp. p. 38).
Appellant submitted a detailed vocational evaluation which considered his
resume, job description and all medical evidence on file. It was noted that Appellee did
not pursue any type of vocational rehabilitation. It was recommended that he participate
3
in an assisted job search program (Supp. p. 69). The conclusion reached was that from
a vocational standpoint, Appellee was capable of sedentary work activity as well as
participating in vocational rehabilitation services. (Supp. p. 71).
On December 13, 2012, Appellee's application was heard. He appeared by
telephone. The Staff Hearing Officer, despite the voluminous evidence on file, issued a
three paragraph decision granting the application based on the reports of Drs. Depaz,
McCormick and Orlando. (Supp. p. 84). Accordingly, he did not address any of
Appellee's disability factors. Moreover, he ordered disability payments to begin on April
26, 2011, the date of Dr. Depaz's report.
Appellant filed a complaint in mandamus from this decision. Said writ was
denied which prompted the appeal as of right to this Court.
4
ARGUMENT
Proposition of Law No. I: An award of Permanent Total Disability based solely
on medical impairment without any consideration of disability factors must be
based on evidence that clearly establishes that the medical impairment alone
precludes any employment.
The issue raised by this appeal is whether or not the report of Dr. Depaz is some
evidence to support the award of permanent total disability. Appellant's position is that
this report is not some evidence because it does not find that Appellee is unable to work
based on medical factors alone. Thus, it was an abuse of discretion for the Commission
to rely upon this report to support the starting date for Appellee's compensation.
Appellee filed his application with a report from Dr. Depaz. This report, which
does not list any of the allowed conditions, states very clearly that "his activity level is
restricted to sedentary activities with maximum lifting of 10 lbs." (Supp, at 13). He then
elaborates that he should avoid several types of repetitive activity. He notes that he will
need to lay down at times to relieve his back pain and the he "will need periods of
continued rest to control exacerbations of his back pain." Dr. Depaz's conclusion, as a
medicaJ doctor and not a vocational expert, is that Appellee "will not be able to maintain
any type of re ular work schedule." (emphasis supplied). Despite this report which
clearly outlines Appellee's physical capabilities, the Commission found that Appellee
was unable to perform any sustained remunerative employment as the sole result of the
medical impairment caused by the allowed conditions. Appellee submits that it was an
abuse of discretion to rely on this report.
5
First of all, as set forth above, Dr. Depaz does not list or discuss the allowed
conditions in this claim. That would be enough to disqualify his report. See State ex rel.
Waddle v. Indus. Comm. (1993), 67 Ohio St.3d 452. More importantly, however, his
opinion is not an opinion which finds an inability to work based solely on medical
impairment. As set forth above, he states very clearly that Appellee can perform
sedentary work. Thus, the case requires an analysis of Appellee's disability factors
before any award can be made. See State ex rel. Stephenson v. Indus. Comm. (1987),
31 Ohio St.3d 167.
The Court is asked to compare and contrast the other reports relied upon to
support this order. The report and addendum of Dr. McCormick twice states "this
injured worker is capable of work." (Supp. at 37, 38). Similarly, Dr. Orlando states "this
injured worker is capable of work. (Supp. at 28-9). The form completed by Dr.
McCormick offered an opportunity for him to choose "sedentary work" which includes
"exerting up to ten pounds of force occasionally ... and/or a negligible amount of force
frequently." Brief periods of walking and/or standing may also be required. Moreover,
this form allowed the doctor to include "further limitations, if indicated." Thus, the
choices made by these doctors were clear: not only was Appellee incapable of
sedentary work, he was incapable of subsedenetary work.
Dr. Depaz, however, is not so clear. He agrees that Appellee could do sedentary
work with further limitations, just as if he was completing the form that Dr. McCormick
completed. He indicated the type of work that Appellee could do and the restrictions
which would need to be accommodated. He does not find Appellee incapable of any
6
work and an "inability to maintain any type of regular working schedule" is not its
equivalent.
The case authority cited by the lower court, moreover, is inapplicable to the facts
at bar as they do not concern an award of permanent total based on medical
impairment alone. In State ex rel. Cleveite Elastomers v. Torok, 2002-Ohio-4770, the
court addressed an award based upon a consideration of vocational factors. In fact, the
court noted that the Commission had the discretion to "find a claimant capable of
sedentary work, where the claimant can perform some, but not all, jobs encompassed
within the definition of sedentary work." Id. at ¶12 citing State ex rel. Woods v. Indus.
Comm. (1997), 78 Ohio St.3d 414. Moreover, sustained remunerative employment
included part time work. Id. at ¶13. See also: State ex rel. Toth v. Indus. Comm.
(1997), 80 Ohio St,3d 360.
Similarly, in State ex rel. Owens Corning Fiberglass v. Indus. Comm., 2004-Ohio-
3841, the Commission relied on reports where both physicians concluded that the
claimant was incapable of physical work activity. In the case at bar, Dr. Depaz's report
does not provide any explanation as to how much rest Appellee needs or what a regular
working schedule is. At that point, the issue is not medical impairment, but whether or
not vocational/disability factors preclude employment.
The lower court's opinion also conflicts with its decision, State, ex rel. Miller v.
lndus. Comm,, 2014-Ohio-1742. In that case, the court denied an award where the
medical evidence limited the claimant to a five pound lifting restriction with no repetitive
activity did not preclude sustained remunerative employment. In fact, the court cited
cases which indicated that a two pound lifting did not preclude sustained remunerative
7
employment. Id. at ¶14. Moreover, the Court cautioned that a check-the-box finding of
incapability of employment would be rejected if the narrative "clearly and
unambiguously" set forth a capacity for work. Id. at ¶57. (Emphasis supplied).
It must be remembered that this policy has its roots in this Court's holding in
State, ex rel. Galion Mfg. Div. v. Haygood (1991), 60 Ohio St.3d 38. The Court found
that non-medical factors did not need to be considered "in extreme situations when
medical factors alone precluded sustained remunerative employment. Id. at ¶40.
(Emphasis supplied). Those situations, Appellant asserts, must be limited to situations
where the evidence is unequivocal and unambiguous that medical factors alone
preclude any sustained remunerative employment. In the case at bar, while arguendo,
the reports of Drs. McCormick and Orlando may meet this standard, the report of Dr.
Depaz does not. While he offers an opinion that Appellee's ability to work is limited, his
report does not establish that Appellee is precluded from every form of work. It was
therefore the duty of the Commission to consider Appellee's disability factors before
relying upon Dr. Depaz's report to support an award of permanent total disability. The
portion of the award which is based solely on the report of Dr. Depaz, that is the start
date of April 26, 2011 until the March 9, 2012 report of Dr. Orlando, must be vacated.
It is respectfully requested that the Court reverse the portion of the decision
which finds that Appellee is permanently and totally disabled based on the report of Dr.
Depaz and find that Dr. Depaz's report is not some evidence to support this award.
8
CONCLUSION
The Commission cannot abdicate its obligation to consider vocational factors
when a permanent total applicant has the ability to perform at least sedentary work. If
medical impairment alone permanently disables that person, no such analysis is
needed. In the case at bar, while the reports of Drs. Orlando and McCormick state
clearly that Appellee's medical impairment renders him incapable of work, the report of
Dr. Depaz does not. Dr. Depaz indicates that Appellee can perform sedentary work. To
that end, an analysis of Appellee's disability factors was required. The Commission
abused its discretion by relying on Dr. Depaz's report.
The suggestion that Dr. Depaz describes work that is less than sedentary is
irrelevant as he specifically describes what Appellee can do while the other doctors do
not. It is indeed a leap of logic to conclude that a person who has the physical abilities
described by Dr. Depaz is "incapable" of work without a consideration of disability
factors. The Commission does not favor us with any explanation for this inconsistency.
In order for Dr. Depaz's report to be some evidence, an analysis of Appellee's disability
factors was mandated. It is indeed frustrating that Appellee, who never sought any type
of vocational rehabilitation, would receive this award based upon the report of Dr.
Depaz.
The Commission took the easy way out by finding that Appellee was permanently
disabled based on medical factors alone. It would have been more difficult and time
consuming to fashion an order setting forth and explaining why Appellee's disability
factors (54 years old, high school graduate who ran his own business) prevented him
from working, especially given his failure to pursue any type of vocational rehabilitation
9
in the eight years between his injury and the filing of his permanent total application.
Accordingly, based upon the lack of any discussion of Appellee's disability factors, the
order of the lower court must be reversed.
R ectfully submitted
("`Mi_cha 1 Squillace (0016824)Dinsmore & Shohl LLP191 West Nationwide Blvd., Suite 300Columbus, OH 43215Phone: (614) 628-6880Fax: (614) [email protected]
Attorney for Relator,Tradesmen International
10
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served by
regular U.S. mail, postage prepaid on August 7, 2014, upon:
Chelsea Fulton, Esq.Philip J. Fulton Law Office89 East Nationwide Blvd., Suite 300Columbus, OH 43215
Cheryl Nester, Esq.Assistant Attorney General150 East Gay Street, 22nd FloorColumbus, OH 43215
Attorney for Respondent-Appellee,Raymond Smith
Attorney for Respondent,Bureau of Workers' Compensation
Michael IL. Squillace
11
APPENDIX
Notice of Appeal to the Supreme Court (Apr. 30, 2014)
2. Judgment Entry of the Tenth District Court of Appeals (Mar. 20, 2014)
3. Decision of the Tenth District Court of Appeals (Mar. 20, 2014)
4. Decision of the Tenth District Court of Appeals (Aug. 14, 2013)
12
OA105 - T47
IN THE SUPREME COURT OF OHIO
r:y
STATE OF OHIO, ex rel.,Tradesmen lnternationaf
On Appeal From the Franklin CountyRelator-Appellant, : County Court of Appeals
Tenth Appellate Districtvs.
Industrial Commission of Ohio andRaymond Smith,
Court of AppealsCase No. 13-AP-122
Respondents-Appellee
NOTICE OF APPEAL OFRELATOR, TRADESMEN INTERNATIONAL
Michael L. Squillace (0016824)Dinsmore & Shohl LLP191 West Nationwide Blvd., Suite 300Columbus, OH 43215Phone: (614) 628-6880Fax: (614) [email protected]
Chelsea Fulton (0086853)Philip J_ Fulton Law Office89 East Nationwide Blvd_, Suite 300Columbus, OH 43215Phone: (614) 224-3838Fax: (614) [email protected]
Attorneys for Relator,Tradesmen Interrmational
Attorney for Respondent-Appellee,Raymond Smith
Naveen V. Ramprasad (0085868)Assistant Attorney General150 East Gay Street, 22nd FloorColumbus, OH 43215Phone: (614) 466-6696Fax: (866) [email protected]
Attorney for Respondent,Bureau of Workers' Compensation
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Notice Of Appeal ofRelator Tradesmen International
Relator, Tradesmen International, hereby gives notice of appeal to the Supreme
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Court of Ohio and all parties from the judgment of the Franklin County Court of Appeals,
Tenth Appellate District, entered in the Court of Appeals case State of Ohio ex reL
Tradesmen tnterraational v. Industrial Commission of Ohio and Raymond Smith, Case
No. 13-AP-122, on March 20, 2014 (attached hereto and incorporated herein by
reference). Said case originated in the Court of Appeals.
Respectfufly submitted
/._,__\ 3
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Michae6 L. Squillace (0016824)Dinsmore & Shohl LLP191 West Nationwide Blvd., Suite 300Calumbus, OH 43215Phone: (614) 628®6880Fax: (614) [email protected]
Attorneys for Relator,Tradesmen lntemational
751787v1
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0A105 - T49
Certificate of Service
The undersigned hereby certifies that a copy of the foregoing was served by^k
regular U.S. mail, postage prepaid this^^; day of April, 2014, upan:
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Chelsea Fulton, Esq.Philip J. Fulton Law Office89 East Nationwide Bivd., Suite 300Columbus, OH 43215
Attorney for Respondent Appellee,Raymond Smith
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Naveen V. Ramprasad, Esq.Assistant Attorney General150 East Gay Street, 22"d FloorColumbus, OH 43215
Attorney for Respondent,Bureau of Workers' Compensation
Michael L. Squillace
3
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IN THE COURT OF APPEALS OF OHIO
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[State of Ohio ex rel.]Tradesman International,
Relator,
V.
Indtistrial Commission of Ohioand Raymond Smith,
Respondents.
(RL',GULAR CALENDAR)
DECTSION
Rendered on March 20, 2014
Dinsmore & Shohl, LLP, and ]tfizchael L. Squillace, for relator.
lt7ichael DeWine, Attorney General, and Naveen V.Ramprasad, for respondent Indtpstrial Commission of Ohio.
Philip J. Fulton Law Office, and Chelsea J. Tulton, forrespondejit Raymond Smith.
IN N1ANDANIUSON OI3JE(-'TIONS TO THE MAGISTRATE'S DECISION
CONNOR, J.
{y[ I} Relator, Tradesnien International, brings this original action seeking a wTit
of rnandarrzus ordering respondent, Industrial Commission of Ohio ("cormnission"), to
vacate its order awarding respondent, Raymond Smith ("claiznarit"), permanent total
disability ("PTD") compensation and to find that clairnant is not entitled to that
compensation.
112) Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of
Appeals, this nzatter was referred to a magistrate, who has now rendered a decision and
No. 13AP-122
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recommendation that includes findings of fact and conclusions of law and is appended to
this decision. The magisti-ate concluded that the coznrnission did not abuse its discretion
and recon-imended that this court not issue the requested writ of mandamus. Relator has
filed objections to the magistrate's decision, and the matter is now before us for our
i.ndependent review.
{13} As reflected in the facts given in the magistrate's decision, claimant was
involved in a work-related injury on July 23, 2003. Claimant's industrial claim has been
allowed for the following conditions: low back sprain, right shoulder sprain, cervical
sprain, left wrist sprain, right parac_entral disc protusion at L5-Sz, clironic pain syndrome,
adjustment disorder with depressed mood, moderate to severe.
{14} Claimant filed an application for PTD compensation on August 30, 2011.
Claimant supported the application with the April 26, 2o11 report of Oscar B. Depaz, M.D.
Dr. Depaz stated that from a medical standpoint claimant had "significant functional
impairment, and at this time his activity level is restricted to sedentary activities with
maxi.mum lifting of zo lbs." (Stipulated Record, exhibit No. z.)("Stip.R"). Dr. Depaz
further stated that clainiant should avoid "repetitive bending, stooping, twisting, liftia-ig,
pushing, or Pull.ing" and noted that claimant would need "frequent pe.riods of rest which
at times will require him laying down to relieve his back pain." (Stip.R., exhibit No. i.)
(i 5} Jaqueliize Orlando, Ph.D., conducted an independent psychological
evaluation of claimant for the allowed psychologicaI condition, and issued her report on
March 9, 2012. Dr. Orlando noted that claimant presented feelings of despair, enxptiness,
and vulnerability, and deterniined that claimant's depression was in the severe to extreme
range. Dr. Orlando determined that claimant had reached maximum niedical
improveinent ("1VIMI°), and stated that claimant's whole person impairment was 2,5
percent based solely on the allowed psychological condition. Dr. Orlando also cornpleted
an occupation activity assessment form indicating that clairnant was incapable of any and
all employment based on his clironic adjustanent disorder with depressed mood.
{q[ b} TimothyJ. McCoraTiick, D.O_, conducted an independent medical evaluation
of claimant on March 16, 2012. Dr. McC.orrrrick determined that claimant had reached
NIMI as to each allowed medical condition, and assessed a 2,1 percent whole person
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No. i;3AP-122 3
inipairment. Dr. McCormick con-ipleted a physical strength rating form indicating that
claimant was incapable of working based solely on the allowed conditions.
(117) The application canie before a staff hearing officer ("SHO") for a hearing on
December 13, 2012. The SHO relied on the medical reports of Drs. Depaz, Orlando, and
McCormick to conclude that claimant was unable to perform any sustained remunerative
employment solely as a result of the allowed conditions. The SHO stated that the PTD
compensation was awarded from April 26, 2011 onward, "for the reason that this is the
date of Dr. Depaz's report submitted in support of the application." (Stip.R., exhibit No.16.)
{i 8} The magistrate recommended that this court deny the requested writ of
mandamus. Specifically, the anagistrate determined that the reports of Drs. Orlando and
McCorn-iick were some evidence on which the comrnission could rely lo award PTD
compensation, that Dr. Depazs report was some evidence which the comrnission could
rely on to support the start date for the aivard, and that claimant's failure to pursue
vocational rehabilitation ivas immaterial. Relator presents the following objections to the
n7laglstr'lc te's decision:
1. The Magistrate Erred by Not Finding That the Reports ofDrs. Orlando and McCormick were Equivocal arad Internallylnconsistent.
II. The Magistrate Erred When She Fotin.d That Dr. Depaz'sReport Was Some Evidence to Support that Start Date ofRespondent's Award Because Dr. Depaz Did Not Find ThatRespondent was Permanently and Totally Disabled as the SoleResult of His Aledical Impairinent.
III. The Magistrate Erred by Findinb that Respondent Had noObligation to Pursue Vocational Rehabilitation.
119} Pi_irsuant to Civ.R. 53(D)(4)(d), we undertalKe an independent review of the
objected matters "to ascertain that the magistrate has properly determined the factual
issues and appropriatelv applied the law." A relator seeking a -,tiz-it of niandainus rnust
establish: "'(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon
respondent to per•fornr tt-je act requested, and (3) that relator has no plain and adequate
reniedv in the ordinary course of the law.' " Kinsey u_ Rd_ of Trustees of the Police &
7
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Firerrzen`s Disability & Pension 1*'iitid of Ohio, 49 Ohio St.3d 224, 225 (1990), quotingState ex rel. Cora:sol. Rail Coria. v. Gorman, 70 Ohio St.2d 274, 275 (19$2)• "A clear legal
right exists where the [commission] abuses its discretion by errtering an order which is
not supported by 'some evidence.' " Id.
(l 10} This court will not determiaze that the cornnlission abused its discretion
when there is some evidence in the record to support the commission's finding. State exrel. Rouch v. Eacle Tool &Mach. Co., 26 Ohio St.3d 197, 198 (1986). The some evidence
standard "reflects the established principle that the cominission is in the best position to
deterniine the weight and credibility of the evidence and disputed facts." State ex rel.Woolum v. Indus. Comm., ioth Dist. No. 02AP-78o, 2003-Ohio-3336, 1f 4, citing State exrel. Pavis v. Gen. It7 otors Corp., B.O.C. Grottp, 65 Ohio St.3d 30, 33 (1992).
{1111} The relevant inquiry in a determination of PTD is the claimant's ability to do
any sustained remunerative employTnent. State ex rel. Domjancic v. Indus. Comrrc., 69
ONo St,3d 693 (1994); Ohio Adm.Code 4121-3-34(33)(i), Generally, in making this
deter xination, the cominission 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. Inclus. Comm., 31 Ohio St.3d 167 (1987).
{q[ 121 In its first objection, relator asserts that the magistrate erred by not finding
that the respective repoi-ts fron-3 Drs. Orlando and McCorlnick were equivocal and
internally inconsistent. Equivocal or internally inconsistent medical reports do not
collstitute some evidence upon which the cominission can rely. State ex red. Eberhardt v.Ftxible Corp., 70 Ohio St-3d 649 (1994), Stczte ex rel. Lopez v. Indus. Comm., 69 OhioSt.3d 445 (1994); State ex ret. Paragon v. Iridus. Comm., 5 Ohia St.3d 72 (1983).
{yj 13J Relator contends that the reports of Drs. Orlando and McCormick are
equivocal because they each assess a 25 percent whole person impairment but, despite
that relatively low impairrnent ratirag, conclude that claimant is permanently and totally
disabled. The magistrate, however, correctly noted that a doctor's percentage of
impairment rating does not preclude a doctor from rendering an opinion that the
claiznant is incapable of sustained remunerative ernployment. See Stute ex ret.Schottenstein Stores Coip. u. Iruius. Comtns, ioth Dist. No. 07AP-1o66, 2009-Ohio-2142;State cx rel. Ohio State Z,Trziv_ v. Indtis. Comn., ioth Dist. No. 11AP-526, 2o12-Ohio-3917,
8
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T 8 (noting that "[p)ursuant to Schottenstein, Dr. Writesel's 17 percent impairinent rating
is not inconsistent with his conclusion that claiinant is incapable of sustained
remunerative employment"); State ex rel. S. Rosenthal Co., Inc. v. Indus. Coanrn_, ioth
Dist. No. 03AP-i13, 2004-Ohio-544, T 27 (noting that the "Ohio Supreme Court has
stated that it would be error for the commission to draw its conclusion with regard to PTD
compensation on the basis of percentages alone, without regard to a claimant's actual
physical restrictions"). We have independPntly reviewed thP reports issued by Drs.
Orlando and McCorlnick and do not find either doctor's report equivocal or internally
inconsistent.
{114} Relator also asserts that the magistrate erred by refusing to rely on State exrel. Kroger Co. v. Johnson, 128 ®hio St.3cI 243, 2o11-Ol^.ia-630 to reject the reports of
Drs. Orlando and 14TcCorrn.ick. The magistrate correctly determined that relator's relianceon Johnson was misplaced, as the issue in Johnson was whether the claimant had
sustained a total loss of use of his right hand. The standard for determining per-manent
partial disability resulting froFn loss of use differs from the standard used to determine
whether an individual is permanently and totally disabled. See State ex re1. Kroger Ca. V.Wedqe, ioth Dist. No. riA1'-631, 2012-Ohio-4073, N 25 (noting that the relator therein,relying on Johnsorz, suggested "that this court should treat PTD cases in the sanie manner
as loss of use cases; however, the two are not synonymous"). Based on the foregoing,
relator's first objection to the rnagistrate's decision is overruled.
{l 15) Relator's second ol^jection asserts that the magistrate erred by finding that
Dr. Depaz's report was some evidence to support the April 26, 2011 start date for
clainiant's 1'`I'D compensation. Some evidence upon which the commission relied to
award PTD must also support the PTD start date. State ex re1. Itlarlow v. Indus. Comm.,
ioth Dist. No. 05AAP-970, 2007-Ohio-1464, 1112. Here, the conunission expressly relied on
Dr. Depaz's report when it granted claimant's PTD application.
{11( !61 Relator asserts that, because Dr. Depaz opined that relator could perform
sedentaiy wort, Dr. Depaz did not find relator permanently and totally disabled solely as
a result of naedical inipairrrient. Accordingly, relator contencls that Dr. Depaz's report
could not constittite some evicienc.e to support the start date for PTD compensation.
However, "'r,vhere a physiciarl placcs the claimant generally in the sedentaiy category but
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has set forth functional capacities so limited that no sedentary work is really feasible *}*
then the commission does not have discretion to conclude based on that report that the
claimant can perform sustained remunerative work of a sedentary nature.' " State ex re1.Owens Corning Fiberglass v. Indzis. Comni., ioth Dist. No. o3AP-6$4, 2004-Ohio-3841,
156, quoting State ex r°e1. Libecap v. Indus. Coinm., ioth Dist. No. 96APDoI-29 (Sept. 5,
1.996). Here, Dr. Depaz stated that claimant was restricted to sedentary activities, but also
found that claimant would need to lie down frequently to relieve his back pain. Dr. Depaz
specifically found that claimant would "have significant difficulty maintaining a regular
schedule, and at times, he will need periods of continuous rest to control exacerbatioaras of
his back pain." (Stip.R., Exhibit i.)
{g[ 17} "Sedentary cvork" means "exerting up to ten pounds of force occasionally
* Y* and/or a negligible amunt of force frequently * * * to lift, carry, push, pull, or
otherwise move objects. Sedentary work involves sitting most of the time, but may involve
walking or standing for brief periods of time." Ohio Adm.Code 4121-3-34(B)(2)(a). Dr.
Depaz found that claimant could not sit most of the time, as claimant would need to lie
down frequently to relieve his back pain. Although Dr. Depaz stated that claimant could
perforzn sedentary work, the restrictions outlined in Dr. Depaz's report ttirere so nai-row as
to preclude sustained reinunerative eniployment. See State ex rel. Clev7te Elastomers v.
7orok, ioth Dist. No. 02AP-iq6, 2002-Ohio-4770, 1 20, citing Libecap. As such, Dr.
Depaz's April 26, 2oa1 report was some evidence to support the start date for the PTD
compensation, Relator's second objection to the magistrate's decision is overruled.
{y[ 18} Relator's third objection asserts that the magistrate ezTed by finding that
claimant did not have an obligation to pursue vocational rehabilitation before claimant
could be entitled to PTD compensation. Although PTD benefits "mav never be denied
solely on the basis of medical evidence yvithout consideration of Stephenson factors * * `there are some situations where an award of such betlefits may properly be based on
medical factors alone-" (Empl-iasis sic.) State ex rel. Galion Mfg. Div., Dresser Inclustries,
Inc. v. Haygood, 6o Ohio St.3d 38, 40 (199s.). INThere, as here, medical factors alone
prechide sustained remunerative employment, there is no practical purpose for the
commission to consider tfie nonniedical f.actors, "since nonmedical factors ^vill not rcnder
the claimant any more or less physicallyable to work." Ici. The medical evidence indicated
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that claimant was PTD based solely on the allowed rnedical conditions. Accordingly, a
consideration of the zlonrnedical factors, including whether claiznan.t had or should have
pursued vocational rehabilitatiora, was unnecessary. Relator's third objection to the
Fnagistrate's decision is overruled.
(y[ 19} Following indeperident rezdew, pursuant to Civ.R. 53, we find the magistrate
has properly determined the pertinent facts and applied the salient law to thein.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein. In accordance with the magistrate's decision,
we deny the request for a writ of rziandamus.
Objections oUerruled;writ denied.BRO4VN and a'GRAT)Y, JJ., concur.
11
OA105 - T580A097 - LT84
No. 13AP-122
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELIATE DISTRICT
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[State of 0hio ex rel.]Tradesnien International,
Relator,
V.
Industrial Comn-iission ofOhio and Raymond Smith,
Respondents.
(REGULAR CALENDAR)
MAGISTRATE'S DECISION
Rendered on August 14, 2013
Dirasmore & Shohl LLP, and 11llichael L. Squillace, for relator.
Michael DeTlvzne, Attorney General, and Naveen V.Ram;nra.sar.t, for respondent Industrial Can7mission of Ohio.
Philap J. Fulton Latv Office, and Ghelsea J. FzIlton, forrespondent Raymond Smith.
IN MANDAMUS
8
[120) Relator, Tradesnzen Intemational, has filed this original action requesting
that this court issue a writ of mandamus ordering respondent Ind.ustrial Commission of
Ohio ("cornnzission"), to vacate its order which awarded permanent total disability
("PTD") compensation to respondent Raymond Smith ("claimant") and ordering the
comrnission to tnd that claiznant is not entitled to that compensation.
FindiDgs c^f Fact:
No. 1W-122
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{q( 21} i. Claimant sustained a work-related injury on July 23, 2003 and. his
workers' compensation claiin has been alloived for the following conditions:
LOW BACK SI'IWN; RIGHT SHOUIDER SPRAIN;CERVI.CAL SPRMN; LEFT WRIST SPRAIN; RIGHTPA.RACENTRAL DISC PROTRUSION AT L$-Sr; CHRONICPAIN SYNDROME; ADJUSTMENT DISORDER WITHDEPRESSED MOOD, MODERATE TO SEVERE.
(y[ 22} 2. Claimant's claim has specif cally been disallowed for the followingconditions:
RADICULOPATHY/RADICULITIS AT L5; RIGHT FOOTDROP; SURGICAL FIBROSIS AT THE Si NERVE ROOT;RUP'I`URED L4-5 DISC.
{y( 23} 3. Claimant has not worked sii-ice he was injured.
tql 24} 4. In Septeinber 2005, claimant began receiving Social Security Disabilitybenefits.
{lj[ 251 5. Approximately one year after the accident, claimant underwent surgezy
consisting of a laminectozny performed at L5-Si. According to claiinant, he did not
receive much benefit froan the sLirgezy.
fg[ 26} 6. Claitnant was examined by Eduardo A. Sanchez, M.D., P.A., for his
allowed psychological condition. In his February .ra, 2oo6 report, Dr. Sanchez noted tllat
claizzzant presented with significant depressive syrriptomology that would require the use
of antidepressants. Dr. Sanchez did not believe claimant's allowed psychological
condition liad reached maxinnzun inedical iniprovement ("MMI"), and believed that
claimant was capable of functioning in a job situation. According to Dr. Sanchez,
claimant's liniitations were due to the pain syndrome and physical consequences,
including the use of opiates and other medication necessai-yr to treat liis pain and
depression.
11271 7. Clairnant was also examined by Howard B. AVeiss, D.O., P.A., wlio offered
an opinion concerning claimant's allowed physical conditions. Iri his .A.pril 4, 2007 rePort,
Dr. Weiss identified the medical records which he reviewed, provided his physical
findings upon eaaminatian, and cozicluded that it was iu-dikely that claimant would be
13
0A105 - T60QA097 - U86
No. 13AP--122 10
able to retur-n to work. Dr. Weiss recommended that a functional capacity evaluation be
_pexforrned if clairnant's work status needed to be specifically addressed.
{i 28} 8. On August 29, 2o11, claiinant filed his application for PTD
compensation.
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(1291 9. In support of his application, claimant submitted the April 26, 2011
report of his treating physician Oscar B. Depaz, M.D. Dr. Depaz addressed claimant's
physical condition and opined that he would not be able to maintain any type of regular
work schedule, stating:
From the medical standpoint however, it is my opinion thatMr. Smith has significayit functional impairment, and at this.time his activity level is restricted to sedentary activities withmaximum lifting of io lbs. He should avoid repetitivebending, stooping, twisting, lifting, pushing, or pulling. Mr.Smith will need frequent periods of rest which at times willrequire hina laying down to relieve his back pain. He tivillhave significant difficulty maintaining a regular schedule,and at times, he will need periods of continuous rest tocontrol exacerbations of his back pain. Therefore, he will notbe able to maintain any type of regular working schedule.
{134} in. Claimant was referred to Umesh M. Mhatre, M.D., P.A.., for a
psychiatric evaluation. In his November 16, 2011 report, X?r. Mhatre opined that
claimant's psychiatric condition was not severe enough, in itself, to keep him from
worlring. In Dr. Mhatre's opinion, claimant's primary reason for not working resulted
from his phvsical impairment and not his psychological impairment.
{yj 311 11. Claimant was also examined by Gerald A. Mastaw, M.D. In his January
23, 2012 report, Dr. Mastaw identified the medical records which he reviewed, provided
his phvsical findings upon examination and concluded that claimant's injury did not
preclude him from performing at a sedentary-work level. He did however indicate that
claimant needed to continue with pain management.
{9[ 32} 12. An independent psychological evaluation was conducted by Jacqueline
Orlando, Ph.D. In her Nlarch 9, 2012 report, Dr. Orlando noted that, according to the
Zung Depression Scale, claimant's depression measured severe to extreme. Sl1e assessed
a 25 percent whole person impairment and opined that claimant was incapable of
perforniing any and all employment.
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No. x3AP-12211
133} 13. An independent medical evaluation was perforined by TimothyJ.
McCormick, D.O. In his iUlarcli 16, 2012 report, Dr. McCorinick identified the allowed
conditions in the claim, discussed the history of claimant's injury, noted lris physical
findings upon examination, concluded that claimant's allowed physical conditions had
reached XllVII, and he assessed a 24 percent whole person impairment and concluded that
claimant was not capable of ivorking.
{g[ 34} 14. Dr. McCormick prepared an addendum dated Apri112, 2 012 wherein he
explained:
In my report of March i6, 2012, 1 marked on the PhysicalStrength Rating forrn "This injured worker is incapable ofwork."
My opinions were based on the history of the injury in 2003,surgery in 2004, and no substantial improvement or changeover time. He is also taking narcotics of Oxycontin andRoxicodone on a regular basis.
On exaniination, he was having trouble ambulating,changing position from sitting to standing, and was using acane for support. Because of his difficulties rnovirig about, Idid not have him bend or stoop. He also had physicalfindings consistent with radiculopathy including sensoryabnormalities and weakness in the right leg. There were noinconsistencies during my examination or during the time Ispent with hirn.
Based on these factors it was my opinion that he is notcapable of work.
(1351 15. Stephen Phillips, C.R.C., CDMS, prepared an employability assessment
dated June 26, 2012. Ultimately, Mr. Phillips noted that claimant's work history was
limited to work as a pipe fitter, a heavy strength skilled job, noted that his injtu-y had
drastically changed his personali.ty and physical abilities, that there was no evidence that
his education provided for direct entry into skilled work, that there were no jobs e}cisting
in siyruficant riurr,bers which he was able to perforn3, and that, even if he could perfornl at
a sedentary level, he had no transferable skills to seek other employment. Mr. Phillips
also noted that claimant did not have the capacity to perfornl tivritinb or busincss
correspondence cir perforin complex decision rnal;ing, had inarked limitations in his
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No. 13AP-122 12
ability to do complex tasks and participate in nornial work routines, that lus psychological
condition pr ecluded hian from being able to attend and concentratt: or be productive
enough to complete a normal work routine. Mr. Phillips noted that if claimant was able to
work, he would be limited to unskilled sedentary or below sedentary employment mostly
composed of clerical and assembly/production work. Mr. Phillips concluded that
claimant was a very unlikely candidate for any sustained reinunerative employment.
{136} i6. The record also contains the July 5, 2012 employability assessment
prepared by J. Kilbane M.Ed., C.R.C., who opined that claimant did have transferable
skills and, after notina that claimant had not attempted vocational rehabilitation services,
recommended that he should participate in a r.vork adjustment program which would
allow him to build up his physical and psycllological enciurance in a work-simulated
environment. Mr. Kilbane ultimately determined that claimant was capable of sustained
remunerative employment, stating:
His reported activity level and the opinions of Dr. Mastaw,Dr. Mhatre, and Dr. Sanchez support that Mr. Smith iscapable of sedentary work acti^,ity. He is capable ofparticipating in vocational rehabilitation services which Arillprepare for re-entry into the labor market. His age is not awork-prohibitive factor. It is tnv opinion that Mr. Smith iscapable of sustained remunerative eYnployment based on theallowed conditions of the claim, his physical capabilities, age,education, work histoiy and skills.
{qj 37} 17. Claimant's application for PTD compensation was heard before a staff
hearing officer ("SHO") on Deceinber 13, 2012. The SHO relied on the medical reports of
vrs. Depaz, McC:orinick and Orlando and found that claimant was not able to perform any
sustained remunerative employinent solely as a result of a medical impairment caused by
his allowed conditions. 'X'he SHO used the April 26, 2011 report of Dr. Depaz as the start
date.
(138) 18. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{$ 391 Relator asserts that the conunission abused its discretion: (i) when it
granted claimant PTD co3npensation because the reports of Drs. Orlando and iti^cCormick
are equivocal pursuant to State ex rel. Itroger Co. v. Johmsori, 128 Ohio St.3d 243, 2011-
16
OA105 - T63OA097 - U89
No. 13AP-122 13
Qhio-530, (2) by relying on the report of Dr. Depaz as the start date for claimant's award;
- an (3) by not coa-isrdering claimant's failure to attempt vocational rehabilitation:
fy( 40} The magistrate finds that the commission did not abuse its discretion
because: (i) the reports of Drs. Orlando and McCormick do constitute some evidence
upon which the commission could rely; (2) Dr. Depaz's report does constitute some
N cq evidence upon which the commission could rely as the start date for the award; and (3)^- r® ^ the commission was not required to deny claimant PTD compensa.tion because he did not
Q pursue vocational rehabilitation.r..a (^( 41} In order for this court to issue a 'writ of mandamus as a remedy frorn a
LO ra. determination of the commission, relator must show a clear legal right to the relzef sought
o N ai.^d that the commission has a clear legal duty to provide such relief. State e.^ rel.co Pressley v. Indus. Comm., :tx 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
v ^ entering an order which is not stipported by any eiidence in the record. State er rel.Elliott v. Indtis. Cartirrz., 26 Ohio St.3d 76 (1986). On the other hand, where the record
® c°^O contains some eviderice to support the commission's findings, there has been no abuse of
0 -Ydiscretion and mandarnus is not appropriate. State e.r rel. I,eur%s v. Diamond Foundry(D
ci y Co., 29 Ohio St.3d 56 (1987). Fu-thermore, questions of credibility and the weight to beCO(Dgiven evidence are clearly within the discretion of the commission as fact finder. State ex
Q Q rel. Teece u. Irulzts. Concm., 68 Ohio St.2d 165 (1g8r).
° o {^[ 42) The relevant incluiry in a determination of permanent total disability is
v o claimant's abiliiy to do any sustained remunera[ive employment. State ex rel. Domjancic^ 0 z). .Indus: Comm., 69 Ohio St.3d 693 (z994). Generally, in malcing this tletermination, the
® Q cornmission must consider not only medical impairments but also the claimant's age,
o 0r_ education, work record and other relevant non-medical factors. State ex rel. Stephenson^ 2 v. Indus. Cornrn., 31 Ohio St.3d 167 (1987). Thus, a claimant's medical capacity to work is
^" not dispositive if the clairnant's non-medical factors foreclose eanployal^ility. State ez rel.i..U' Gay v. 1'Lrihm 68 Ohio St. d3i^ 3 5(1994)- The commission must also specify in its order
wliat evidetice has been relied upon alic3 briefly explain the reasoning for its decision.
State e:r rel. No11 v_ Indus. Co'nm., 57 C)l-1-jo St.3d 203 (1991)-
17
oAlo5 - T64OA.097 - U90
No. i3AP-z2214
{y[ 431 Relator asserts that the reports of Drs. Orlando and McCormick do not
coiastitute some eviderlce upon which the commission could rely to find that claimant was
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entitled to an award of PTD compensation because those reports are equivocal. Relator
asserts that a 25 percent impairment means that claimant retains 75 percent of function
and cannot be permanently and totally disabled.
{q[ 44} Relator acknowledges that this court has rejected this argument on more
than one occasion. For example, in State ex re1. Schottenstein Stores Corp. v. Indus.Comm., -ioth Dist. No. o7AP-io66, 2009-Ohio-2142, the employer challenged Dr.
Stewart's report on several grounds. One challenge concerned the fact that Dr. Stewart's
15 percent impairinent rating was low and could not constitute some evidence upon ivhich
the comniission could rely to award PTD compensation to the claimant, Haskell Hysell.
In adopting the decision of its magistrate, this court stated:
Analysis begins with the observation that in the caselaw, theSupreme Court of Ohio has, on occasion, characterized animpairment ratizzg in its discussion of i-nedical reports atissue in a mandamus action involving workers'compensation. For example, in State e.r rel. Beiber v.,Metcofljelding Co. (1996), 77 Ohio St.3d 1, 3, 67o N.E.2d 463, thecourt states:
IATe have similar difficulty tirith the commission'scharacterization of a fifty-nine percent in-ipairment asbeing "low to rnoderate." We note that in State ex rel.Lopez v. Indus. Comm. (1994), 69 Ohio St.3d 445,449, 633 N.E.2d 528, 531, we Niewed a fifty percentirrtpairment as high. * * *
In State ex re1. Domjancic u. Inclus. Comm. (1994), 69 OhioSt.3d 693; 635 N.E.2d 372, the court refused to grant a fullwrit of mandagnus pursuant to State ex rel. Gay v. lvl{hm(i994), 68 Ohio St.3d 315, 626 N.E.2d 666, following thecotu-t's determination that the commission's order denyingPTD conipensation failed to comply with State ex rel. No1L V.Indus. Gomm. (1991), 57 Ohio St.3d 203, 567 YE.2d 2,45.The Domjancic court instead granted a limited writ,explaining:
Y X ' Generally, in cases wtzere Gay relief lias beenrecomniended, the corrlinission's order has coiipledvocationally unfavorable evidence A-ith niedical
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No_ 13AP-122
evidence that assessedphysical in-ipairrnent.profile. * - *
Id. at 697, 567 N.JG.2d 245.
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a relatively high degree ofThis case does not fit that
In .Uornjancic, the commission had relied upon the medicalreport of commission specialist Dr. Joseph I. Gonzalez vvhoassessed a"16% permanent partial impairrnent of the wholeperson for the allowed conditions recognized in this claim."Id. at 693, 567 N.E.2d 245.
Presumably, the Dorrajancic court viewed aj6 percentpernaanent partial impairment as not being a "relatively hibhdegree of physical impairment." Id. at 697, 567 N.E.2d 245-
Notwithstanding that cases can be found in which the courtshave characterized an impairment rating, relator cites to nocase that holds that a doctor's impairment rating for theallowed conditions precludes him or her from rendering anopinion that the clain-iant is incapable of sustainedremunerative employment. The lack of a direct correlationbetween a doctor's impairment rating and the claimant'sability to perform sustained remunerative employment isrecognized at Ohio Adm.Code 4121-3-34(D)(3)(f):
The adjudicator shall not consider the injuredworker's percentage of permanent partial impairmentas the sole basis for adjudicating an application forpermanent and total disability.
Moreover, relator's suggestion that Dr. Stewaart's 15 per^entiYnpairment rating is low fails to recognize that, with respectto claimant's chronic pain, Dr. Stewart cautioned "jt]here isno other criteria in the Guides for additional irnpairmentbeyond this 15%" for the allowed conditiolis of the claim.Thus, the a, percent rating does not include the chronic pain.
In short, there is no inconsistency as a niatte.r of law betweenDr. Stewart's narrative evaluation of the allowed conditionsand lvs coiaclusiorz on the physical strength rating form that"[t1his injured worker is not capable of physical workactivity."
Schotterzstern Stores at ¶ 59-65,
15
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0A105 - T66oA097 - U92
No. 13AP-122 16
11451 Specifically, relator asserts that, from a psychological and physical
- starldp oint res ectivel #incliriqs of 2P Ys ^ 5 percent iriipainnent eanl,ot constitute an inabilitv
to perform any sustained remunerative employment. Drs. Orlando and McCormick each
found a 25 percent whole person impairment and yet each ultimately concluded that
claimant was not able to pez-forrn any sustained relnunerative employment due solely tocliCV
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the allowed conditions they considered.i
{qj 46} The n-iagistrate finds that tliis court's decision in Schottenstein Stores
supports the commission's order here. Relator may argue that the Schottenstein Stores
case is not on point, because in that case, there was extensive discussion that Hysell
suffered ch.ronic pain syndrome. However, the magistrate notes that there is evidence in
this case that claimant has a significant amount of chronic pain in his lower back that
radiates to his legs. In finding that he was permanently and totally disabled, Dr. Writesel
specifically noted that claimant had "persistent back pain symptoms that preclude his
ability to perforln any duties in a sustained functional status." Pain can support a court
finding of PTD. As in Schottenstein Stores, the niagistrate would deny relator's requestfor a writ of nlandanzus.
{147} To the extent that relator relies on Kroger Co., the argument is notpersuasive. Kroger involved an award of permanent partial disability due to the alleged
loss of use of Dan C. Johnson's right hand. Tlais court found that Dr. Renneker's
assessment of a 27 percent hand impairment was inconsisteiat -vvith her conclusion that
Johnson had lost the total use of his hand. (Johnson retained 73 percent of his hand's use
and was not a total loss.) The standard applied in deterrriining loss of use issues differs
significantly from the standard applied in determining whether an injured worker is
permanently totally disabled. See also State ex rel. Kr-oger Co. v. Wedge, l.oth Dist. No.izNP-631, 2012-013io-4o73, wherein this court specifically addressed and rejected this
argument.
{i 48} As such, relator's contention that ihe reports of Drs. Orlando and
McCormick do not constitute some evidence upon which the comrnission could rely
because they only assess a 25 percent whole person inipairnient is rejectecl.
^ Dr. Orlando found a 25 percent pswho]ogical impairment and Dr. JkIcCormick fou ►ida 24 percentphysical inipairrnent.
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No. 13AP-x22 17
(1491 Relator also contends that the report of Dr. Depaz does not constitute some
evidence upon which the cornmission could rely as the start date for the award. Relator
contends that Dr. Depaz indicated that claimant was able to perform sedentary work, and,
as such, the date of his report cannot be used as the start date.
11501 Relator cites to this court's decision in State ex rel. PhilTrps v. CornpleteNN
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Carpenwy, Inc., ioth Dist. No. ogf1P-29, 2oog-Ohio-,r)546. Richard Phillips sustained a
work-related injury and received temporary total disability ("TTD") compensation until
March 21, 2007 when his allowed conditions were found to have reached MMZ. Phillips
filed his application for PTD con-ipensation on <July 7, 20o8. The commission granted
TTD coznpensation with an effective start date of June 14, 2007 based on the office notes
and MEDCO-14 completed by Paige S. Gutlieil, D.O., ^,,rherein Dr. Gutheil opined that
Phillips was permanently and totally disabled from all sustained remuiierative
employment due to the allowed conditions in the claim.
(q} 5:1} Phillips filed a request for reconsideration regarding the start date of his
PTD compensation seeking a start date of March 2z, 2007, when his I'TD compensation
ended. The coinmission denied Pliillips' request noting that the March 22, 2007 office
note of Dr. Gutheil indicated that Phillips would look into a ftmctional capacity evaluation
and vocational rehabilitation to determine the extent of his disabilitv.
rl( 52} Phillips filed a mandamus action in this court arguing that the commission
abused its discretion by not selecting the earlier start date. This court found that the
commission did not abuse its discretion and rejected Phillips argument, stating:
The medical evidence clearly was equivocal at best until theJune 14, 2007 report from the treating physician. Thedoctor's report, up intil then, assumed Phillips could dosedentary work. Rehabilitation efforts were pursued. Onlyafter attempts at rehabilitation were abandoned did thedoctor report that Phillips was PTD. Prona a medicalperspective, the SHO's finding was appropriate.
Id. a t 117.
{q} 53} Relator contends that Dr. Depaz's statenlent in his April 26, 2011 report
sLiffers from the sanie defect. Por the reasons that follow, the magistrate disagrees.
{yj 54} As noted previously, Dr. Depaz stated as follows in his April 26, 2011 report:
21
0A1.05 - T68
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From the medical standpoint however, it is my opinion thatMr. Smith has significant functional impairment, and at thistirtze his activity level is restricted to sedentary activities withrnaximum lifting of ro lbs. He sliould avoid repetitivebending, stooping, twisting, lifting, pushing, or pulling. Mr.Smith will need frequent periods of rest which at tinres willrequire him laying down to relieve his back pain. He willhave significant difficulty maintaining a regular schedule,and at time, he will need periods of continuous rest tocontrol exacerbations of his back pain. Therefore, he will notbe able to nzaintain any type of regular working schedule.
i8
{155} Relator contends that Dr. Depaz has opined that claiznant can perform
sedentary work activities. If that were the only sentence in the paragraph, the magistrate
would agree with relator's argument. However, Dr. Depaz went on to note that claimant
needed to avoid repetitive bending, stooping, twdsting, lifting, pusffing, or pulling. He
indicated that claimant would need frequent periods of rest and, at times, he would need
to lay down to relieve his back pain. Dr. Depaz indicated that claimant would have
significant difficulty maintaining a regular schedule because he wTould need periods of
continuous rest to control exacerbations of his back pain. As such, Dr. Depaz coricluded
tl-iat claimant would not be able to maintain any type of regiilar work schedule.
{9156} The magistrate finds that Dr. Depaz's report differs froin the report at issue
in Phillips. Here, Dr. Depaz indicated that claimant's activity level was restricted to
sedentaiy acti«ties but that, because of his back pain and the necessity of rest, he would
not be able to maintain a regular work schedule. As such, this poa-tion of relator's
argument is not well-taken. The magistrate finds that the report of Dr. Depaz does
support the start date of PTD compensation and the commission did not abuse its
discretion.
{ll 571 Relator-'s final arguzxr.ent is that the commission abused its discretion by
failing to find that claimant's failure to pursue vocational rehabilitation should bar him
from receiving P',iti cornpensation. Relator• poirrts to certain niedical reports in the record
and argues that those reports demonstrate that claimant could have attempted vocational
rel7abilitation. For example, in his February io, 2oo6 report, Dr. Sanchez opined that
claimant's allowed psychological condition had not yet reached MMI and did not preclude
him from functior?ing in a job situation. Dr. Sanchez indicated tliat claimant's lirnitations
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No. 13AP-122 ry
were due to his back paiil and thc medications he was taking. Relator also points to the
April 4, 2007 report-of Dr= Weiss -vvfio coixcluded that, while it was unlikely claimant
wou.ld return to work, a functioiaal capacity evaluation should be performed if his work
status needed to be addressed. Relator also points to the March 11, 2oir report of
Kenneth G. Rice, Ph.D. arid H.E. Cadiz, Ph.D., both licensed psychologists, who opined
that claimant had a 15 percent wbole person impairment due to his allowed psychological
cozidition.
{158} The commission and courts can demand acco-Lultability of a claimant who,
despite time and medical ability to do so, never tried to fiirther their education or learn
new skills. State ex ret. Bovuting u. Natd. Can Corp., 77 Ohio St.3d 148 (1996). Further,
RC. 4123.58(D)(4) precludes PTD compensation where the employee's inability to work
is a result of the emplovee's failure to engage "in educational or rehabilitative efforts to
enhance the employee's employability, un.less such efforts are determined to be in vain."
{159} Contrary to relator's assertion, currerit case law does not mandate that the
commission denv 1?TD compensation if the injured worker does not engage in efforts to
retrain. .Instead, the statute states that PTD compensation can still be awarded where
there is no participation in vocational rehabilitation if such participation would have been
in vain. The magistrate has reviewc:d the record. According to the statement of facts
prepared by the comunission, the magistrate notes that claimant's claim was originally
allowed for low back sprain, right shoulder, neck, and left wrist strain/sprain in
September 2003. Claiinant's claim was additionally allowed for right paracentral disc
protrusion at I,5-Si in April 2004. The claim was additionally allowed for chronic pain
syndrome in March 2oo6 and the psychological condition, adjustment disorder writh
depressed mood, moderate to severe was allowed in May 2006. 4lrhile it is undisputed
that claimant had back surgery in 2004, the record does not indicate how long claimant
received TTD compensation after the surgery and it is not mentioned in any of the bizefs
or medical reports. Furthcr, the record indicates that claimant attempted some type of
physical therapy three times hut that, due to his chronic pain, he was not able to continue.
(160) Following a review of the stipulation of evidence, the -tynagistrate cannot say
that the conimission abused its discretion bv not holding claimant's failure to pursue
23
0A105 - T70OA097 - U96
'O. a3AP-x2?20
vocational rehabilitation against hirra. Further, there is no reqtu.rement that the
cornznissio•n explain that ctaimant's lack of partzcipation-was excusable.
{q[ 62} Based on the foregoing, it is this magistrate's decision that relator has not
deirtonstrated that the conlmission abused its discretion by awarding ciaimant PTD
compensation and this court should deny relator's request for a writ of rnandalnus.NNrOO0aM
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IS1 NIAGISTRATESTEPI-IANNIE BISCA BROOKS
NOTICE TO THE PARTIESCiv.R. 53(D)(3)(a)(iii) provides that a party shall not assignas error on appeal the court's adoption of any factual findingor legal conclusion, whether or not specifically designated asa finding of fact or conclusion of law under Civ.R.53(D)(3)(a)(ii), tinless the party timely and specificallyobjects to that factual finding or legal conclusion as requiredby CiFT.R. 53(D) (3 )(b).
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