s-3-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s ... (1986), 28 ohio st.3d 4, 5-6...

s-3-s-s-s-s-s-s-s-s-s-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S

IN THE SUPREME COURT OF OHIO

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s

State of Ohio, ex rel.DaimlerChrysler Corporation,

Appellant,

V.

Ronald J. Majerowski andIndustrial Commission of Ohio,

Appellees.

Case No. 2007-0111

On Appeal from the Franklin CountyCourt of Appeals, Tenth Appellate District

Court of Appeals Case No. 05AP-1103


APPELLANT DAIMLERCHRYSLER CORPORATION'S MOTION FORRECONSIDERATION

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-sThomas A. Dixon (0017879)Richard L. Johnson (0064260)Eastman & Smith Ltd.One SeaGate, 24' FloorP.O. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Facsimile: (419) 247-1777tadi [email protected] ith.comrljohnsonna.eastmansmith.com

Counsel for Appellant,DaimlerChrysler Corporation

r- L E DAUG fJ 6 ?Q07

CLERK OF COURTSUPREME COURT OF OHIO

Kurt M. Young (0061917)709 Madison Avenue, Suite 307Toledo, Ohio 43624Telephone: (419) 244-7885kmX(a.kmvlaw.com

Counsel for Appellee,Ronald J. Majerowski

Charissa D. Payer (0064452)Assistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22"d FloorColumbus, Ohio 43215Telephone: (614) 466-6696cpavera? ae.state.oh.us

Counsel for Appellee,Industrial Commission of Ohio

Pursuant to S.Ct.Prac.R. XI(2)(A), appellant DaimlerChrysler Corporation

("DaimlerChrysler") moves this Court for reconsideration of its Judgment Entry filed July 27,

2007 dismissing this cause sua sponte. The grounds for this motion are fully set forth in the

following memorandum in support.

EASTMAN & SMITH LTD.

iL^

Thomas A. Dixon 17879)Richard L. Johns(0064260)One SeaGate, 24th FloorP.O. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Facsimile: (419) 247-1777tadixona.castmansmith.comrliohnsonng,eastmansmith.com


2

MEMORANDUM IN SUPPORT OF MOTION FOR RECONSIDERATION

DaimlerChrysler exercised the requisite diligence in prosecuting this cause by attempting

to file its Merit Brief on two separate occasions. On July 23, 2007, the date the Merit Brief was

due, DaimlerChrysler attempted to file the brief along with a Supplement to the Briefs. The

Clerk of Courts refused to file DaimlerChrysler's Merit Brief because it did not include an

appendix. Although great effort was expended, DaimlerChrysler was not able to prepare an

appendix, attach it to the Merit Brief, make the requisite amount of copies, and return to the

Clerk's office before it closed for the day. Thereafter, DaimlerChrysler attempted to file a

motion to file its Merit Brief instanter, but the Clerk also refused to file this motion. Because of

the Clerk's refusal to file DaimlerChrysler's Merit Brief, on January 27, 2007, this Court ordered

that this cause be dismissed sua sponte.

In DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189, this Court reversed the court

of appeals' judgment which dismissed the case sua sponte, pursuant to a local appellate rule,

because of the appellant's failure to file a non-existent transcript of the proceedings in the trial

court.' This Court stated:

Initially, in evaluating the propriety of the Court of Appeals' action, wehasten to emphasize - indeed re-emphasize - that it is a fundamental tenet ofjudicial review in Ohio that courts should decide cases on the merits. Judicialdiscretion must be carefully - and cautiously - exercised before this court willuphold an outright dismissal of a case on purely procedural grounds. (Citationomitted.) Id. at 192.

The Court also stated:

A case like this compels us to make one final observation. • As previouslyindicated, local appellate rules are needed in order to achieve the prompt andefficient dispatch of justice. This is a two-pronged objective - the local rulesmust encourage promptness and efficiency, on the one hand, and fairness andjustice on the other. Faitness and justice are best served when a court disposes ofa case on the merits. Only a flagrant, substantial disregard for the court rules can

' The trial court decided the case by summary judgment. Thus, there was no transcript of proceedings.

3

justify a dismissal on procedural grounds. Local rules, at any level of our statecourt svstem, should not be used as a judicial mine field, with disaster lurking atevery step along the way. (Emphasis added.) Id. at 192-93.

In light of these principles, the Court noted that (1) the error of the appellant's counsel "was

inadvertent, correctable and made in good faith, not as part of a continuing course of conduct for

the purpose of delay;" (2) the appellee was not prejudiced by the error; (3) the court of appeals

also was not prejudiced because the entire record was before the court when it dismissed the

case; (4) dismissal was "disproportionately harsh" for "a hyper-technical, clerical error;" and (5)

the appellant should not be punished for the "highly technical error" made by his counsel. Id. at

192. The Court thus determined that the court of appeals should have decided the case on the

merits. Id. at 193.

This Court has subsequently employed the same reasoning on numerous occasions to

presecve a party's opportunity to have his or her cause decided on the merits, including cases

involving technical violations of this Court's Rules of Practice. State ex rel. Wilcox v. Seidner,

76 Ohio St.3d 412, 413-14, 1996-Ohio-390 (appellants' failure to include date-stamped notices

of appeal in the appendices of their briefs as required by S.Ct.Prac.R. V1(2)(B)(5)(a)); State ex

rel. Burch v. Sheffield-Sheffield Lake City School Dist. Bd. Of Edn., 75 Ohio St.3d 216, 217-18,

1996-Ohio-304 (appellant's failure to file a Supplement to the Briefs as required by S.Ct.Prac.R.

VII(1)); State ex rel. Montgomery v. R & D Chem. Co., 72 Ohio St.3d 202, 203-04, 1995-Ohio-

21 (appellant's failure to file a trial transcript in the court of appeals and appellee's failure to

timely file a merit brief in this Court); State ex rel. Consol. Rail Corp. v. Pub.Utilities Comm. of

Ohio (1988), 40 Ohio St.3d 252, 255 (appellant's failure to file a mandamus complaint within

thirty days as required by former S.Ct.Prac.R. I(3)); Hawkins v. Marion Correctional Inst.

4

(1986), 28 Ohio St.3d 4, 5-6 (appellant's failure to timely file its brief in the court of appeals as

required by App.R. 18(A)).

DaimlerChrysler's failure to attach an appendix to its Merit Brief was inadvertent - a

mistake that was made in good faith. DaimlerChrysler has not attempted to delay the

proceedings before this Court, nor would it have any reason to do so. A prompt resolution of

DaimlerChrysler's appeal is in its best interest because it continues to pay appellee Majerowski

ongoing permanent total disability ("PTD") compensation - compensation to which

DaimlerChrysler contends Majerowski is not entitled. And DaimlerChrysler's mistake is easily

correctable. Attached as Exhibit A to this motion is the same Merit Brief that DaimlerChrysler

attempted to file on July 23, 2007, except that an appendix has been added.

DaimlerChrysler's failure to attach an appendix to its Merit Brief was not prejudicial to

appellees. Appellees were served with DaimlerChrysler's Notice of Appeal to this Court and

had received and were fully aware of the Judgment Entry and decisions of the court of appeals

and its magistrate and the underlying orders of the Industrial Commission ("Commission") - the

documents to be included in the appendix. Further, DaimlerChrysler's failure to attach an

appendix did not prejudice this Court because all of the documents to be included in the

appendix were either contained in the record transmitted from the court of appeals or the

Supplement to the Briefs that DaimlerChrysler attempted to file when it attempted to file its

Merit Brief on July 23, 2007. 2

Dismissing this cause would be clearly disproportionate to DaimlerChrysler's failure to

attach an appendix to its Merit Brief. This technical omission does not rise to the level of a

"flagrant, substantial disregard" of this Court's Rules of Practice. Obviously, DaimlerChrysler

2 This Motion for Reconsideration is accompanied by the Supplement to the Briefs that DaimlerChrysier attemptedto file with its Merit Brief on July 23, 2007.

5

will be unfairly prejudiced if the Court's dismissal is permitted to stand on the basis of a

technical error made by its counsel. This error has no effect on the substantive issues involved in

this appeal, and should have no effect on the course of the appeal. Applying the principles set

forth in DeHart and its progeny, DaimlerChrysler's appeal should be decided on its merits.

Furthermore, this cause involves an important issue which needs to be decided on the

merits. The court of appeals, in ruling on DaimlerChrysier's objections to the Magistrate's

Decision, concluded that the Commission has the same prerogative to address or not to address

critical issues when it adjudicates claims as it has to decide the weight and credibility of

evidence. Specifically, the court stated:

The same conclusion [regarding the Commission's discretion to determinethe weight to give a doctor's report] applies to [DaimlerChrysler's] contentionthat the magistrate failed to consider the commission's lack of discussion ofMajerowski's failure to obtain any retraining. However, the commission has aduty only to discuss that evidence upon which it relies, not to explain why itfavors one piece of evidence over another. (Citation omitted.) (Court of Appeals'Decision p. 7)

The court of appeals' reference to the Commission's evidentiary prerogative has nothing to do

with the Commission's responsibility to address critical issues which necessarily affect the

outcome of the claims before it.

This Court has held that the Commission abuses its discretion by failing to address

critical issues when it adjudicates claims. See State ex rel. Consol Freiahtwavs v. Enaerer, 74

Ohio St.3d 241, 246, 1996-Ohio-136; State ex rel. Peabody Coal Co. v. Indus. Comm., 66 Ohio

St.3d 639, 641, 1993-Ohio-82; and State ex rel. Gen. Am Transo. Corp. v. Indus. Comm.

(1990), 49 Ohio St.3d 91, 92. In this case, the critical issue was Majerowski's failure to do

anything for over eleven years to seek retraining or otherwise enhance his ability to reenter the

workforce. The Commission failed to even address this issue when, in December, 2004, it

6

granted Majerowski's application for PTD compensation. The Commission's failure was

particularly egregious because eleven years earlier, in February, 1993, it denied Majerowski's

first PTD application based on a finding that he was fully capable of being successfully retrained.

The court of appeals, in reviewing the Conunission's glaring omission, erroneously applied the

Commission's evidentiary prerogative instead of this Court's precedent requiring the

Commission to address all critical issues that come before it.

DaimlerChrysler's infraction of failing to include an appendix in its Merit Brief is clearly

a minor technical error which should not serve as the basis for the ultimate outcome of this

cause. This Court should decide the cause on the merits and permit DaimlerChrysler to file its

Merit Brief. Otherwise, fairness and justice will not have been extended to DaimlerChrysler.

For all of the above reasons and based upon the above-cited authorities,

DaimlerChrysler's motion for reconsideration is well taken and should be granted.

Respectfully submitted,


Thomas A. DixonkM 7879)Richard L. Johnson (0064260)One SeaGate, 24th FloorP.O. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Facsimile: (419) 247-1777tadixon(a),eastmansmith.comrl iohnson(a)eastmansmi th.com


7

PROOF OF SERVICE

A copy of the foregoing Appellant DaimlerChrysler Corporation's Motion for

Reconsideration was sent by regular U.S. Mail on this,^&day of August, 2007 to Kurt M.

Young, Esq., Law Offices of Kurt M. Young, LLC, 709 Madison Avenue, Suite 307, Toledo,

Ohio 43624, counsel for appellee, Ronald J. Majerowski; and to Charissa D. Payer, Esq.,

Assistant Attomey General, Workers' Compensation Section, 150 East Gay Street, 22nd Floor,

Columbus, Ohio 43215-3130, counsel for appellee, Industrial Commission of Ohio.


Counsel for AppellDaimlerChrysler C oration

^

H:WOME1R1JohnsanVdeJerowski - M"Uon fa itecrosideralian.doc

8




State of Ohio, ex rel. . Case No. 2007-0111DaimlerChrysler Corporation,

Appellant, On Appeal from the Franklin CountyCourt of Appeals, Tenth Appellate District

V.

Ronald J. Majerowski and Court of Appeals Case No. 05AP-1103Industrial Commission of Ohio,

Appellees.


MERIT BRIEF OF APPELLANT DAIMLERCHRYSLER CORPORATION

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-sThomas A. Dixon (0017879)Richard L. Johnson (0064260)Eastman & Smith Ltd.One SeaGate, 24u' FloorP.O. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Facsimile: (419) 247-1777tadixona,eastmansm ith.comrijohnson eastmansmith.com


Kurt M. Young (0061917)709 Madison Avenue, Suite 307Toledo, Ohio 43624Telephone: (419) [email protected]


Charissa D. Payer (0064452)Assistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22"d FloorColumbus, Ohio 43215Telephone: (614) [email protected]


Exhibit A

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . ........................................................................................................ iii

STATEMENT OF FACTS ..............................................................................................................1

ARGUMENT ...................................................................................................................................7

Proposition of Law No. I : ....................................................................................................7

The Industrial Commission of Ohio abuses its discretion when it fails to addressan issue critical to the permanent total disability determination, such as aclaimant's failure to seek retraining or otherwise enhance re-employmentpotential.

Proposition of Law No. II : .................................................................................................15

The Industrial Commission of Ohio abuses its discretion by granting anapplication for petmanent total disability compensation which does not havesome evidence to support it.

CONCLUSION ..................................................................:...........................................................23

PROOF OF SERVICE ...................................................................................................................24

APPENDIX ................................................................................................................................... 25

Notice of Appeal ................................................................................................................1

Judgment Entry of the Court of Appeals ............................................................................ 3

Decision of the Court of Appeals Rendered on December 7, 2006 with theMagistrate's Decision Attached Thereto as Appendix A .......................................4

Record of Proceedings of the Industrial Commission of Ohio mailedFebruary 9, 2005 .................................................................................................. 28

Record of Proceedings of the Industrial Coinmission of Ohio mailedDecember 22, 2004 .............................................................................................. 30

Record of Proceedings of the Industrial Commission of Ohio mailedFebruary 22, 1993 ................................................................................................ 35

ii

TABLE OF AUTHORITIES

Cases

State ex rel. Arrow Internatl Inc . v. Indus . Comm ., Franklin App. No. 05AP-1319, 2007-Ohio-293 ................................................................................................................................. 14

State ex rel. B.F. Goodrich Co. v. Indus. Comm.. 73 Ohio St.3d 525, 1995-Ohio-291 ..... ............ 8

State ex rel. Borden Chem.. Inc. v. Moum. Franklin App. No. 03AP-1213, 2005-Ohio-1121 ......................................................................................................................................... 21

State ex rel. Bowling v. Natl Can Corp., 77 Ohio St.3d 148, 1996-Ohio-200 ...... ........................ 8

State ex rel. Burke v. Indus. Comm. , Franklin App. No. 03AP-1256, 2004-Ohio-5156 ................ 8

State ex rel. Consol. Freightways v. Engerer. 74 Ohio St.3d 241, 1996-Ohio-136 ...................... 14

State ex rel. Cunningham v. Indus. Comm., 91 Ohio St.3d 261, 2001 -Ohio-35 ............................ 8

State ex rel. DeZarn v. Indus. Comm., 74 Ohio St.3d 461, 1996-Ohio-143 .................................. 9

State ex rel. Erico Products. Inc. v. Indus. Comm.. 70 Ohio St.3d 661, 1994-Ohio-155 ............. 15

State ex rel. Gay v. Mihm, 68 Ohio St.3d 315, 322, 1994-Ohio-296 ........................................... 21

State ex rel. Gen. Am. Transn. Corp. v. Indus. Comm. (1990), 49 Ohio St.3d 91 ....................... 14

State ex rel. Hursey v. Indus. Comm.. Franklin App. No. 04AP-292, 2005-Ohio-198 ................ 21

State ex rel. Moss v. Indus. Comm., 75 Ohio St.3d 414, 1996-Ohio-306 ...................................... 9

State ex rel. Mover v. Sharonville Fire Dent.. Franklin App. No. 04AP-92, 2005-Ohio-587 ........................................................................................................................................... 19

State ex rel. Paraskevopoulos v. Indus. Comm., 83 Ohio St.3d 189, 1998-Ohio-122 .............. 8, 16

State ex rel. Peabody Coal Co. v. Indus. Comm.. 66 Ohio St.3d 639, 1993-Ohio-82 .................. 14

State ex rel. Sears v. H. Dennert Distrib. Com. Franklin App. No. 03AP-820, 2004-Ohio-4042 ......................................................................................................................................... 21

State ex rel. Skag[rs v. Indus. Comm.. Franklin App. No. 04AP-649, 2005-Ohio-3380 .............. 10

State ex rel. Soeelman v. Indus. Comm. (1992), 73 Ohio App.3d 757 .......................................... 9

State ex rel. Wainer v. Indus. Comm., Franklin App. No. 05AP-86, 2005-Ohio-6212 ................ 19

III

State ex rel. Wean United. Inc. v. Indus. Comm., 66 Ohio St.3d 272, 1993-Ohio-27 ................. 15

State ex rel. Wilson v. Indus. Comm. (1997), 80 Ohio St.3d 250 ............................................ 7, 13

State ex rel. York [ntematl. Coro. v. Indus. Comm.. Franklin App. No. 04AP=979, 2005-Ohio-3792 ............................................................................................................................... 13

iv

STATEMENT OF FACTS

Appellee Ronald J. Majerowski (hereinafter "Majerowski") injured his low back on

October 19, 1985 while lifting a spot welder gun from the floor. (Supplement to the Briefs

"Supp." p. 3) Majerowski filed a claim application which was assigned Claim No. 898905-22

and was initially certified for a lumbosacral strain. Id. Claim No. 898905-22 was then

subsequently allowed for a hemiated disc at L5-S1, depression and anxiety, a bulging disc at L5-

S1, aggravation of pre-existing arthritis from L3-4 to L5-Sl, and fibrosis at L5-S1. (Supp. p. 19)

Majerowski had surgery on his low back on January 17, 1986 in the form of a microdiscectomy

at L5-S1, and he subsequently began receiving Social Security Disability benefits in August,

1987. (Supp. pp. 2-3) By order dated November 20, 1990, Claim No. 898905-22 was

specifically disallowed for disc narrowing at L3-4, L4-5 and L5-S I and spinal stenosis from L3-

4 to L5-S1. (Supp. p. 3)

On December 12, 1990, Majerowski filed an Application for Compensation for

Permanent and Total Disability. (Supp. pp. 1-2) At the time, Majerowski was fifty years old and

had not worked since October 19, 1985, the date of injury, a period of over five years. Id.

Majerowski had an eighth grade education and work experience as a metal model maker. (Supp.

p. 3) Majerowski's rehabilitation file was closed earlier in 1990 because he indicated that he was

physically unable to actively participate in rehabilitation services. (Supp. p. 4)

By order dated February 22, 1993, appellee Industrial Commission of Ohio (hereinafter

"Commission") denied the permanent total disability ("PTD") application based on the following

reasoning:

... [T]he medical evidence indicates the claimant has a low tomoderate physical and psychiatric impairment which does notrender him medically incapable of gainful employment. Theclaimant is fifty-two years old, has an eighth grade education, anda vocational history as a metal model maker. While the

1

Commission recognizes the claimant's prior work experience hasfailed to afford him transferable work skills, a consideration of theclaimant's relatively voung age sug¢ests the claimant is a viablecandidate for successful retraining. The claimant's low tomoderate impairment su¢gests there are a number of sedentaryand light iobs for which the claimant is nhvsically ca ap ble.Furthermore, the claimant's a¢e of fifty-two years of age sue¢estshe has the opportunitv. potential, and motivation to besuccessfully trained for some sedentary and light iobs, such asunskilled or semi-skilled clerical work. Therefore,notwithstanding his present lack of skills and below averageeducational level, the Commission determines the claimant to bereasonably qualified for successful vocational training for iobscompatible with his physical limitations. Accordingly, hisapplication for permanent total disability is denied. (Emphasisadded.) (Supp. p. 6)

Over eleven years later, on April 27, 2004, Majerowski filed a second Application for

Compensation for Permanent Total Disability. (Supp. pp. 10-16) Nothing had changed since the

first PTD application was denied with the exception that Majerowski had gotten older. The

allowed conditions and disallowed conditions in Claim No. 898905-22 were still the same.

(Supp. p. 17) Majerowski still had not worked since October 19, 1985 and continued to receive

Social Security Disability benefits. (Supp. p. 10) He had not received any significant medical

treatment since the first PTD application was denied -- the last surgery for the allowed

conditions having been the microdiscectomy in January, 1986. (Supp. p. 11) Majerowski had

not attempted to further his education or participate in any additional rehabilitation services.

(Supp. pp. 10-11) He indicated that he was not interested in rehabilitation services, again citing

his alleged physical incapacity to participate. (Supp. p. 11)

In support of the second PTD application, Majerowski submitted the November 4, 2002

"Physical Impairment Questionnaire" of Srini Hejeebu, M.D. (Supp. pp. 47-51) Dr. Hejeebu

indicated that Majerowski had a "fair to poor" prognosis for both chronic low back pain and

neck pain, and opined that Majerowski was not capable of sustained remunerative employment.

2

(Supp. pp. 47, 51) In fact, Dr. Hejeebu opined that Majerowski had been incapable of sustained

remunerative employment since October, 1985. (Supp. p. 51)

Majerowski also submitted the December 12, 2002 "Vocational Evaluation" report of

Beverly R. Damrauer, Ph.D., a psychologist. (Supp. pp. 52-54) Dr. Damrauer concluded, in

relevant part:

In all, Mr. Majerowski continues with a mixed mooddisturbance and interpersonal withdrawal. He has receivedmedication management and psychotherapy without significantbenefit. ... His physical pain is chronic and typically high despitemultiple medical interventions. He is discouraged; his defensesare low and his coping strategies pretty non-existent. His singularinterests tend to be understandably non-physical and peopleavoidant. The total psychological picture is hardly supportive ofsustained remunerative employment. When combined with hisother medical conditions, the picture is compelling that this mancannot work at sustained remunerative employment. I would,however, recommend that he not eive up total hope and looktoward somethine that he can do very part time that has flexibilityand minimal ohvsical demands. (Emphasis added.) (Supp. p. 53)

Subsequently, Majerowski filed the November 5, 2004 "Vocational File Review Report"

of Joseph E. Havranek in support of his second PTD application. (Supp. pp. 76-80) Mr.

Havranek concluded as follows:

The claimant has a limited education, a work history that isentirely medium in physical exertional level, and is 60 years ofage. Given the opinions of longtime treating sources, as well asthe findings of the independent psychologist and the symptomsdescribed by Dr. Tosi, the claimant is incapable of any sustainedremunerative employment based solely on the allowed conditionsin this claim based on the combined effects of the physical andpsvcholo¢ical seauelae.

The claimant is incapable of any sustained remunerativeemployment based solely on the allowed conditions in this claim.(Emphasis added.) (Supp. pp. 79-80)

3

The evidence in the Commission's file at the time of the hearing on Majerowski's second

PTD application demonstrated that the only changes since the denial of the first PTD application

were Majerowski's age and medical conditions/procedures unrelated to the allowed conditions in

Claim No. 898905-22. According to Dr. Datnrauer, Majerowski listed "heart attack" as a major

adversity or stress that he had faced during the year 2002. (Supp. pp. 52-53) Then, on July 2,

2003, Majerowski underwent surgery in the form of foraminotomies at C5-6 and C6-7 to relieve

compression caused by multilevel cervical spondylosis. (Supp. pp. 55-57) The cervical spine is

not part of Claim No. 898905-22. Subsequently, on September 17, 2003, Majerowski underwent

additional surgery in the form of bilateral laminectomies and foraminotomies from L3 to L5 to

relieve the compression caused by "severe spinal stenosis." (Supp. pp. 58-60) Claim No.

898905-22 is specifically disallowed for spinal stenosis from L3-4 to L5-S 1. (Supp. p. 3)

Majerowski's second PTD application was heard by a staff hearing officer of the

Commission on December 6, 2004. (Supp. p. 19) At the December 6, 2004 hearing,

Majerowski confirmed that he last worked on October 19, 1985 and had been receiving Social

Security Disability benefits since August, 1987. (Supp. p. 25) He testified that he officially

retired from appellant DaimlerChrysler Corporation (hereinafter "DaimlerChrysler") in June,

1990, before the denial of the first PTD application, and that since his retirement, he had not

sought employment with any other employer, had not attempted to return to school, and had not

participated in any type of vocational rehabilitation or retraining. Id. However, despite

Majerowski's testimony that he had made no effort to enhance his re-employment potential in

the 11-plus years since the Commission found he was a viable candidate for successful

retraining, the staff hearing officer granted the second PTD application without ever addressing

the issue. (Supp. pp. 19-23) The staff hearing officer awarded PTD compensation from April

4

27, 2002 to December 6, 2004 and continuing based on the reports of Dr. Hejeebu, Dr. Damrauer

and Mr. Havranek. (Supp. pp. 19, 22) The staff hearing officer did not mention Majerowski's

recent heart attack, cervical surgery or low back surgery. The staff hearing officer determined

that compensation should commence as of April 27, 2002 based upon Dr. Hejeebu's report

which indicated that Majerowski had been incapable of sustained remunerative employment

since October, 1985. (Supp. p. 22)

On January 6, 2005, DaimlerChrysler requested reconsideration of the staff hearing

officer's order granting the second PTD application. (Supp. pp. 24-27) DaimlerChrysler also

requested that, if reconsideration was denied, the Commission readjust the starting date for PTD

compensation pursuant to Memo G3 of its Hearing Officer Manual. (Supp. p. 24) By order

dated February 9, 2005, the Commission denied DaimlerChrysler's request for reconsideration.

(Supp. p. 28) The Commission never took any action on DaimlerChrysler's request to readjust

the starting date for PTD compensation.

On October 17, 2005, DaimlerChrysler filed a complaint with the Franklin County Court

of Appeals seeking a writ of mandamus. DaimlerChrysler requested that the court issue a writ of

mandamus ordering the Commission to vacate its December 22, 2004 and February 9, 2005

orders and to enter a new order denying Majerowski's second PTD application. In the

altemative, DaimlerChrysler requested a limited writ of mandamus ordering the Commission to

vacate its December 22, 2004 and February 9, 2005 orders and returning the cause to the

Commission for further proceedings and an amended order either granting or denying

Majerowski's second PTD application, or retuming the cause to the Commission for further

proceedings on DaimlerChrysler's request to readjust the starting date for PTD compensation.

The court referred the cause to a magistrate who rendered a decision on December 7, 2006

5

recommending that the court grant a limited writ ordering the Commission to re-determine the

start date of Majerowski's PTD compensation. The magistrate concluded that the Commission

abused its discretion by setting the start date at April 27, 2002. However, the magistrate found

that the Commission did not abuse its discretion in awarding Majerowski PTD compensation.

On objections filed by both DaimlerChrysler and Majerowski, the court adopted the Magistrate's

Decision as its own.t DaimlerChrysler now appeals to this Court from the court of appeals'

judgment as of right.

I The court modified certain conclusions of the magistrate, but the modifications did not affect the ultimateoutcome.

6

ARGUMENT

Proposition of Law No. I:

The Industrial Commission of Ohio abuses its discretion when it fails toaddress an issue critical to the permanent total disability determination,such as a claimant's failure to seek retraining or otherwise enhance re-employment potential.

This Court has held that in order to be eligible for PTD compensation, a claimant must

make every effort to enhance his re-employment potential. In State ex rel: Wilson v. Indus.

Comm. (1997), 80 Ohio St.3d 250, 253, the Court stated:

We view permanent total disability compensation ascompensation of last resort, to be awarded only when allreasonable avenues of accomplishing a return to sustainedremunerative employment have failed. Thus, it is notunreasonable to expect a claimant to participate in retum-to-workefforts to the best of his or her abilities or to take the initiative toimprove reemployment potential. While extenuatingcircumstances can excuse a claimant's nonparticipation inreeducation or retraining efforts, claimants should no longerassume that a participatory role, or lack thereof, will gounscrutinized.

The claimant in Wilson never returned to work after his injury in 1981 and applied for PTD

compensation six years later. Id. at 250. The claimant was 37 years old when injured and 47

years old when the PTD application was ultimately adjudicated. Id. at 252-53. He had a ninth

grade education. Id. at 252. The Commission denied the PTD application, finding that the

claimant's age afforded him the opportunity to improve his educational deficits and acquire new

skills. Id. at 252-53. This Court upheld the Commission's reasoning, but added that PTD

compensation was also properly denied because the claimant had not taken advantage of the

longstanding opportunity to improve his re-employment potential. Id. at 253.

7

In State ex rel. B.F. Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525, 1995-Ohio-291,

this Court reversed the Commission's award of PTD compensation based on a similar analysis.

The Court stated, in pertinent part:

... [E]vidence of record indicates that claimant did notparticipate in rehabilitation services offered by the commission.There is no indication that claimant's lack of participation wasbased on a physician's medical advice, or on a vocationalevaluation that concluded that she was intellectually,psychologically or emotionally incapable of retraining. Absentsuch evidence, the implication is that claimant simply chose not toavail herself of the opportunity to receive retraining and potentialre-employment.

... [W]e are disturbed by the prospect that claimant mayhave simply decided to forgo retraining opportunities that couldenhance re-employment opportunities. An award of permanenttotal disability compensation should be reserved for the mostseverely disabled workers and should be allowed only when thereis no possibility for re-employment. Id. at 529.

See also State ex rel. Cunnineham v. Indus. Comm., 91 Ohio St.3d 261, 2001-Ohio-35

(concluding that the claimant was expected to make the effort to improve his re-employment

potential even before his condition was diagnosed as permanent); State ex rel. Paraskevopoulos

v. Indus. Comm., 83 Ohio St.3d 189, 193, 1998-Ohio-122 (concluding that "[a] claimant's

failure to make reasonable efforts to enhance his/her rehabilitation reemployment potential can

be a factor in a PTD determination"); and State ex rel. Bowling v. Natl. Can Com., 77 Ohio

St.3d 148, 153, 1996-Ohio-200 (upholding the Commission's denial of PTD compensation

because "[t]he commission -- as do we -- demands a certain accountability of this claimant, who,

despite the time and medical ability to do so, never tried to further his education or to leam new

skills").

In State ex rel. Burke v. Indus. Comm. Franklin App. No. 03AP-1256, 2004-Ohio-5156,

at ¶7, the Franklin County Court of Appeals considered the Commission's denial of a claimant's

8

seventh PTD application, all previous applications having also been denied. The claimant

submitted evidence that, at age 73, he was not capable of being retrained. Id. at ¶20. However,

there was no evidence indicating that the claimant was not capable of taking advantage of

vocational rehabilitation services or job training opportunities in the preceding 29 years during

which he had not been working. Id. The court, through its magistrate, found that the

Commission did not abuse its discretion by holding the claimant accountable for this failure. Id.

The court determined that the only change occurring since the filing of the first PTD application

was the claimant's age. Id. at ¶22. The court concluded, however, that "PTD compensation

should not be paid simply because one has gotten older." [d. See also State ex rel. Moss v.

Indus. Comm., 75 Ohio St.3d 414, 416-17, 1996-Ohio-306 (recognizing the significant

impediment the claimant's age presented to re-employment, but concluding that "fw]orkers'

compensation benefits ... were never intended to compensate claimants for simply growing

old"); and State ex rel. DeZarn v. Indus. Comm., 74 Ohio St.3d 461, 463, 1996-Ohio-143

(concluding that "[p]ermanent total disability compensation was never intended to compensate a

claimant for simply growing old").

Similarly, in State ex rel. Sceelman v. Indus. Comm. (1992), 73 Ohio App.3d 757, 763,

the Franklin County Court of Appeals offered the following illustration:

... For example, claimant may be disabled at age fifty-fivefrom returning to the former position of employment but, at thattime, be capable of obtaining sustained remunerative employmentwithin the medically limiting capabilities that the claimant has,after considering all non-medical factors, including age. Ten orfifteen years may elapse with the physical condition remainingapproximately the same. At that time, the age factor may becombined with the disability to disqualify claimant from anysustained remunerative employment. In that event, the IndustrialCommission should have the discretion to find that the sole causalfactor is the increase in age rather than the allowed disability.

9

See also State ex rel. Skaggs v. Indus. Comm., Franklin App. No. 04AP-649, 2005-Ohio-3380,

at ¶9 (concluding that the Commission properly addressed the claimant's age in its order denying

the PTD application by finding that the claimant's failure to make any effort to enhance her re-

employment potential lessened the effect of her age).

In the present case, the only change occurring between February 22, 1993, the date the

Commission denied Majerowski's first PTD application, and April 27, 2004, the date

Majerowski filed his second PTD application, was that Majerowski aged by a little over eleven

years? Thus, the only development since the denial of the first PTD application was that

Majerowski had gotten older. Under Ohio law, however, Majerowski's advancement in age, by

itself, is not a proper basis upon which to award PTD compensation.

The Commission determined in February, 1993 that Majerowski was not permanently

and totally disabled because, given his relatively young age and low to moderate impairment

level, he was a viable candidate for successful retraining. (Supp. p. 6) The Commission

concluded that Majerowski's potential for retraining overcame his lack of skills and educational

level. Id. Thus, the Commission, through its order, put Majerowski on notice that he had an

obligation to seek retraining or otherwise attempt to enhance his re-employment potential.

Despite this notice, in the 11-plus years preceding the filing of the second PTD application,

Majerowski did not participate in any rettun-to-work efforts or take any initiative to enhance his

employability. He did not seek employment with any employer. (Supp. p. 25) He did not

attempt any schooling. Id. He did not participate in any type of vocational rehabilitation or

2 Majerowski apparently had a heart attack in 2002 and cervical and lumbar surgeries in 2003, but theseevents were aq{ related to the allowed conditions in Claim No. 898905-22. (Supp. pp. 52-53, 55-60) Furthermore,no evidence suggests that any of the events adversely affected Majerowski. In fact, the lumbar surgery performed inSeptember, 2003 was to relieve the effects of lumbar spinal stenosis, a condition which was specifically disallowedin Claim No. 898905-22. (Supp. p. 58)

10

retraining. Id. In fact, Majerowski indicated on the second PTD application that he was not

even interested in rehabilitation services. (Supp. p. 11)

Majerowski's failure to seek retraining or otherwise enhance his re-employment potential

was not even addressed by the Commission. In its December 22, 2004 order, the Commission

determined that based on Majerowski's age and limited education, he was no longer a candidate

for academic remediation or vocational retraining. (Supp. p. 22) However, the Commission's

finding in February, 1993 declared Majerowski a viable candidate for successful retraining and

nothing changed between 1993 and 2004 - except his age.

The court of appeals adopted its magistrate's decision and excused the Commission's

failure to address the issue, finding that there were changed circumstances, in addition to

Majerowski's age, between the denial of the first PTD application and the filing of the second.

The court cited the opinion of Dr. Hejeebu for the purpose of finding that "[Majerowski's]

limitations had severely worsened ... [and] demonstrated significantly greater physical

restrictions than [Majerowski] had in 1993." (Court of Appeals' Decision p. 20) However, Dr.

Hejeebu never opined that Majerowski's physical limitations had worsened over the years, or

that his restrictions were significantly greater on November 4, 2002, the date of Dr. Hejeebu's

report, than they were in 1993 when the first PTD application was denied. (Supp. pp. 47-51) In

fact, the court acknowledged that "Dr. Hejeebu opined that the restrictions he placed on

[Majerowski] were permanent and had been in effect since 1985...." (Court of Appeals'

Decision p. 23) Thus, Dr. Hejeebu's opinion does not constitute evidence of a worsening of

Majerowski's condition.

The only change that occurred relevant to the determination of the second PTD

application was the change in Majerowski's age. But, as the court correctly noted, "the simple

il

aging process, without more, does not provide a basis for granting a later PTD compensation...."

(Court of Appeals' Decision p. 20)

The court of appeals also concluded that the Commission could avoid the issue of

Majerowski's failure to seek retraining because "even if [Majerowski] would have pursued

rehabilitation in the last 11 years, he still would not be capable of performing some sustained

remunerative employment at this ooint in time." (Emphasis added.) (Court of Appeals'

Decision p. 21) To support this conclusion, the court necessarily had to rely on Dr. Hejeebu's

report which, again, does not reflect any change in Majerowski's condition since 1985 - nine

years before the Commission declared him not permanently and totally disabled.

The court of appeals' analysis raises a perplexing question: At what point in time was

Majerowski excused from his obligation to seek retraining or otherwise make some effort to

enhance his re-employment potential? Majerowski last worked in October, 1985 when he was

45 years old.3 (Supp. p. 10) He filed his first PTD application on December 12, 1990 when he

was 50 years old. (Supp. p. 3) The PTD application was denied on February 22, 1993 when

Majerowski was 52 years old. (Supp. p. 6) At that point, the Commission specifically found

that given his "relatively young age," Majerowski was a viable candidate for successful

retraining. Id. For over 11 years thereafter Maierowski did nothing. He filed his second PTD

application on April 27, 2004 when he was 64 years old. (Supp. p. 17) The Commission,

through its silence, rewarded Majerowski for eleven years of inactivity. In so doing, the

Commission rendered meaningless this Court's declaration that PTD compensation is

"compensation of last resort, to be awarded only when all reasonable avenues of accomplishing a

return to sustained remunerative employment have failed." (Emphasis added.) State ex rel.

3 Majerowski was bom on April 29, 1940. (Supp. p. 10)

12

Wilson v. Indus. Comm. (1997), 80 Ohio St.3d 250, 253. In this case, Majerowski did not

explore a single avenue for returning to work in over eleven years. Such inaction should be

condemned, not rewarded.

The court of appeals, in ruling on DaimlerChrysler's objections to the Magistrate's

Decision, concluded that the Commission has the same prerogative to address or not to address a

claimant's failure to seek retraining as it has to evaluate the weight and credibility of the

evidence before it. Specifically, the court stated:

The same conclusion applies to [DaimlerChrysler's]contention that the magistrate failed to consider the commission'slack of discussion of Majerowski's failure to obtain anyretraining. However, the commission has a duty only to discussthat evidence upon which it relies, not to explain why it favorsone piece of evidence over another. (Citation omitted.) (Court ofAppeals' Decision p. 7)

The court of appeals' reference to the Commission's evidentiary prerogative is irrelevant to the

Commission's responsibility to address critical issues which necessarily affect the outcome of

the claims before it. The same court of appeals has held that the Commission's failure to address

such issues constitutes an abuse of its discretion.

In State ex rel. York Internatl. Corp, v. Indus. Comm., Franklin App. No. 04AP-979,

2005-Ohio-3792, at ¶16, the claimant filed a PTD application after being off work for over six

years. The Commission granted the application based on its analysis of the claimant's medical

and psychological impairments in combination with her nonmedical disability factors. Id. at

¶22. At the hearing on the application, the employer argued that the claimant was not entitled to

PTD compensation because she had retired from the workforce for reasons unrelated to the

allowed conditions, but the Commission did not address this issue in the PTD order. Id. at ¶29.

In a request for reconsideration, the employer also argued that PTD compensation was

13

inappropriate because the claimant failed to participate in a rehabilitation program, but the

Conunission denied the request for reconsideration. Id. at ¶16, 14. The employer challenged the

Commission's award of PTD compensation in mandamus. Id. at ¶15. The court of appeals

determined that the Commission had abused its discretion in both failing to address the

claimant's failure to participate in a rehabilitation program and failing to address whether she

voluntarily abandoned the workforce. Ic,, at ¶8. Accordingly, the court issued a writ of

mandamus ordering the Commission to vacate its PTD order and to issue a new order either

granting or denying PTD compensation. Id. See also State ex rel. Arrow Internatl.. Inc. v.

Indus. Comm.. Franklin App. No. 05AP-1319, 2007-Ohio-293, at ¶6 (concluding that although

the Commission is not required to identify evidence upon which it does not rely in making its

decision, the Commission abuses its discretion when it does not address a critical issue, such as

whether a claimant voluntarily abandoned her employment).

This Court has also held that the Commission abuses its discretion by failing to address

critical issues when it adjudicates claims. See State ex rel. Consol. Freiehtwavs v. Engerer, 74

Ohio St.3d 241, 246, 1996-Ohio-136; State ex rel. Peabody Coal Co. v. Indus. Comm., 66 Ohio

St.3d 639, 641, 1993-Ohio-82; and State ex rel. Gen. Am. Transo. Cori). v. Indus. Comm.

(1990), 49 Ohio St.3d 91, 92. Majerowski's failure to do anything for eleven years to enhance

his ability to reenter the workforce was a critical issue to the Commission's determination as to

whether, in December, 2004, he was entitled to PTD compensation. The crucial nature of this

issue was highlighted by the fact that eleven years earlier, the Commission put Majerowski on

notice that, in its mind, he was fully capable of being successfully retrained. Despite this, the

Commission did not address this issue in its order granting Majerowski's second PTD

application. As a result, the Commission clearly abused its discretion.

14

Proposition of Law No. II:

The Industrial Commission of Ohio abuses its discretion by granting anapplication for permanent total disability compensation which does not havesome evidence to support it.

In granting Majerowski's second PTD application, the Commission specifically relied on

the reports of Dr. Hejeebu, Dr. Damrauer and Mr. Havranek. (Supp. p. 19) None of these

reports, however, either individually or collectively, constitutes "some evidence" supporting the

Commission's determination. Dr. Hejeebu completed his "Physical Impairment Questionnaire"

on November 4, 2002, documenting Majerowski's complaints of chronic low back pain and neck

pain. (Supp. p. 47) Less than eight months later Majerowski had cervical surgery to decompress

the exiting nerve roots at C6 and C7 due to multilevel cervical spondylosis that had caused

"marked neuroforaminal narrowing." (Supp. p. 55) Approximately 10%: months after Dr.

Hejeebu completed his questionnaire, Majerowski underwent lumbar surgery to decompress the

nerve roots from L3 to L5 due to "severe spinal stenosis" at those levels. (Supp. p. 58) Thus, the

chronic low back pain and neck pain documented by Dr. Hejeebu were clearly caused by a

nonallowed cervical condition and a disallowed lumbar condition, both of which ultimately

required surgery. Accordingly, when Dr. Hejeebu prescribed restrictions based on Majerowski's

complaints of chronic low back pain and neck pain, those restrictions were necessarily for the

nonallowed and disallowed conditions. See State ex rel. Erico Products. Inc. v. Indus. Comm.,

70 Ohio St.3d 661, 663, 1994-Ohio-155 (stating that "[p]ermanent total disability cannot be

based, wholly or partially, on nonallowed medical conditions"); and State ex rel. Wean United,

Inc. v. Indus. Comm.. 66 Ohio St.3d 272, 274, 1993-Ohio-27 (concluding that "a finding of

permanent total disability requires a claimant to prove that his or her inability to perform

sustained remunerative employment arises exclusively from the claim's allowed conditions").

(Emphasis sic.)

15

Dr. Hejeebu's restrictions were also irrelevant to the Commission's PTD determination

because they were prescribed prior to Majerowski's September 17, 2003 low back surgery. In

State ex rel. Paraskevonoulos v. Indus. Comm.. 83 Ohio St.3d 189, 191-92, 1998-Ohio-122, the

claimant argued that the Commission had abused its discretion by failing to consider a certain

rehabilitation report. This Court rejected the claimant's contention, finding that the report added

little information to the PTD determination and its value was diminished by the passage of time.

Id. at 192. In regard to the latter, the Court concluded that many of the report's findings,

"particularly the assessment of claimant's then current physical capacities," were no longer valid

because the claimant subsequently completed a pain management program. (Emphasis sic.) Id.

The discharge summary from the pain management program showed improvement in some of

the claimant's physical capacities. Id. Thus, the Court determined that the information

contained in the report "was not necessarily reliable at the time PTD was considered." Id.

Dr. Hejeebu's report suffers from the same deficiency. If Majerowski's low back

surgery accomplished its intended result - improvement in his low back condition, Dr. Hejeebu's

restrictions would necessarily have been less stringent after Majerowski's recovery from the

surgery. Conversely, if the surgery had a deleterious effect on Majerowski's condition, Dr.

Hejeebu's restrictions would have needed to be more stringent. Either way, at the time the

Commission considered the second PTD application, Dr. Hejeebu's restrictions were not a

reliable indicator of Majerowski's then-physical capacities. Accordingly, the Commission erred

by relying on Dr. Hejeebu's restrictions as a basis for granting Majerowski's second PTD

application.

Additionally, Dr. Hejeebu's report cannot survive evidentiary scrutiny because he

rejected the Commission's previous determination that as of February 22, 1993, Majerowski was

16

capable of sustained remunerative employment. On his questionnaire, Dr. Hejeebu responded

that Majerowski was not capable of sustained remunerative employment, and had not been

capable of such employment since October, 1985. (Supp. p. 51) This is clearly at odds with the

Commission's detetmination that Majerowski was employable in February, 1993. The court of

appeals found that the only evidence supporting the start date of the PTD award, April 27, 2002,

was Dr. Hejeebu's report. (Court of Appeals' Decision p. 8) The court concluded, however, that

the report was not some evidence to support starting PTD compensation on April 27, 2002

because Dr. Hejeebu's reference to October, 1985 "evidence[d] an irreconcilable conflict

between the report and the commission's 1993 denial of PTD." Id. Thus, the court determined

that a writ of mandamus was appropriate "for the limited purpose of directing the commission to

reconsider the date on which Majerowski's PTD should have taken effect." Id.

While rejecting Dr. Hejeebu's report as some evidence supporting the starting date for

PTD compensation, the court of appeals held that the report is some evidence to support the

award of compensation itself. (Court of Appeals' Decision p. 7) The irreconcilable conflict in

Dr. Hejeebu's report, however, remains. He rejects the Commission's denial of PTD, and asserts

that Majerowski's condition has been permanently and totally disabling since 1985. For all of

the reasons set forth above, Dr. Hejeebu's report is not some evidence, and thus the Conunission

erred by relying on the report in granting Majerowski's second PTD application.°

Dr. Damrauer's December 12, 2002 report suffers from one of the same deficiencies as

Dr. Hejeebu's report. Dr. Damrauer assessed Majerowski's capacity for sustained remunerative

employment before his cervical and lumbar surgeries. Dr. Damrauer commented that

4 With Dr. Hejeebu's report removed from evidentiary consideration, the remaining medical evidence doesnot support a finding that Majerowski is permanently and totally disabled. See the June 18, 2004 report of Paul J.Eby, M.D. and the August 9, 2004 report and Physical Strength Rating form of Harvey A. Popovich, M.D. (Supp.pp• 61-68)

17

"[Majerowski's] physical pain is chronic and typically high despite multiple medical

interventions." (Supp. p. 53) In light of the subsequent surgeries, however, it became clear that

Majerowski's chronic physical pain was attributable to multilevel cervical spondylosis

compressing the exiting nerve roots at C6 and C7 and "severe spinal stenosis" compressing the

nerve roots from L3 to L5. Thus, like Dr. Hejeebu, Dr. Damrauer's assessment of Majerowski's

ability to work prior to his surgeries based on his complaints of chronic pain was irrelevant to the

determination of his ability to work after the surgeries and was based, at least in part, on

nonallowed and disallowed conditions.

Furthermore, the Commission relied on the following opinion of Dr. Damrauer:

... The total psychological picture is hardly supportive ofsustained remunerative employment. When combined with hisother medical conditions, the picture is compelling that this mancan not work at sustained remunerative employment. (Emphasisadded.) (Supp. pp. 21, 53)

The Commission could not properly rely on this opinion, however, because Dr. Damrauer

specifically considered Majerowski's "other medical conditions." Dr. Damrauer's assessment of

Majerowski's ability to work was not based exclusively on her assessment of his psychological

impairment. As a psychologist, Dr. Damrauer is not qualified to render an opinion on the

impairment caused by medical conditions, and, as noted above, those "other medical conditions"

necessarily included the nonallowed and disallowed conditions associated with Majerowski's

cervical and lumbar surgeries. Majerowski's "other medical conditions" would have also

included a heart attack which he suffered in the year leading up to Dr. Damrauer's evaluation.s

(Supp. p. 52-53) Accordingly, Dr. Damrauer's opinion is not some evidence supporting the

5 Dr. Damrauer found it significant that Majerowski reported his heart attack as a major adversity or stressthat he had faced in the previous year.

18

Commission's PTD award because she did not confine her opinion to Majerowski's

psychological impairment stemming from the allowed conditions in Claim No. 898905-22.

Assuming arguendo that Dr. Damrauer's opinion is some evidence upon which the

Commission could rely, the Commission took the opinion out of context by omitting the last

sentence of Dr. Damrauer's report. That sentence immediately followed the portion of Dr.

Damrauer's opinion quoted by the Conunission in its order. Dr. Damrauer stated: "I would,

however, recommend that [Majerowski] not give up total hope and look toward something that

he can do very part time that has flexibility and minimal physical demands." (Supp. p. 53)

Sustained remunerative employment includes part-time work, and a claimant who can perform

some type of sedentary work for at least four hours per day can properly be found capable of

sustained remunerative employment. State ex rel. Mover v. Sharonville Fire Dent.. Franklin

App. No. 04AP-92, 2005-Ohio-587, at ¶¶29-30. This includes a claimant confined to a

wheelchair. State ex rel. Wainer v. Indus. Comm., Franklin App. No. 05AP-86, 2005-Ohio-

6212, at ¶26. Thus, Dr. Damrauer's opinion, taken in its entirety, does not support that

Majerowski is precluded from all sustained remunerative employment. Her opinion, therefore,

cannot be some evidence supporting the Commission's order granting the PTD award.6

Mr. Havranek's report is as deficient as the reports of Dr. Hejeebu and Dr. Damrauer,

albeit for different reasons. Mr. Havranek was asked to conduct a vocational file review to

assess Majerowski's ability to engage in sustained remunerative employment considering his

residual functional capacity, age, work experience and education/training. Specifically, Mr.

Havranek was called upon to respond to the following question: "Considering only the

impairments caused by the allowed conditions in the claim(s) and [Majerowski's] age, work

6 With Dr. Damrauer's report removed from evidentiary consideration, the remaining psychologicalevidence does not support a finding that Majerowski is permanently and totally disabled. See the August 24, 2004report and September 4, 2004 Occupational Activity Assessment of Donald J. Tosi, Ph.D. (Supp. pp. 69-75)

19

experience and education/training, is [MajerowskiJ able to engage in any form of sustained

remunerative employment?" (Supp. p. 79) Put simply, Mr. Havranek never did was he was

asked to do. He never performed any type of vocational analysis. Mr. Havranek reviewed the

opinions of the various treating and examining physicians and psychologists as to Majerowski's

ability to work and then concluded as follows:

The claimant has a limited education, a work history that isentirely medium in physical exertional level, and is 60 years ofage. Given the opinions of longtime treating sources, as well asthe findings of the independent psychologist and the symptomsdescribed by Dr. Tosi,7 the claimant is incapable of any sustainedremunerative employment based solely on the allowed conditionsin this claim based on the combined effects of the ghysical andpsvcholo¢ical seguelae. (Emphasis added.) Id.

It is clear from Mr. Havranek's report that he did not actually conduct a vocational

assessment to determine Majerowski's ability to work. Rather, Mr. Havranek concluded that

Majerowski was unemployable based solely on the opinions of Majerowski's treating physician

(Dr. Hejeebu) and psychologist (Stanley Zupnick, Ph.D.), the findings of Dr. Damrauer ("the

independent psychologist"), and the symptoms describcd by Dr. Tosi. He did not base his

conclusion on a vocational analysis with consideration of Majerowski's age, education and work

history in conjunction with the residual fiutctional capacity suggested by the doctors. As a

vocational specialist, without a doctorate in medicine or psychology, Mr. Havranek was not

qualified to render an opinion on Majerowski's employability from a medical or psychological

standpoint. Accordingly, Mr. Havranek's report added nothing to the PTD determination, and

thus the Commission erred in relying on the report.s

7 Dr. Tosi evaluated Majerowski's psychological impairment at the request of the Commission. (Supp. pp.69-75)

a With Mr. Havranek's report removed from evidentiary consideration, the remaining vocational evidencedoes not support a finding that Majerowski is permanently and totally disabled. See the November 15, 2004Vocational Assessment report of Anthony Stead from MedVoc Management, Inc. (Supp. pp. 82-96)

20

It is fundamental that a Commission order granting or denying benefits must be based on

some evidence. State ex rel. Gav v. Mihm, 68 Ohio St.3d 315, 322, 1994-Ohio-296. Here, the

Commission relied on three pieces of evidence, the reports of Dr. Hejeebu, Dr. Damrauer and

Mr. Havranek, to support its decision granting Majerowski's second PTD application. However,

none of the reports constitutes some evidence supporting the Commission's determination.

The court of appeals, while identifying some of DaimlerChrysler's evidentiary

challenges to the reports, did not specifically address those challenges. (Court of Appeals'

Decision pp. 5-7) Rather, the court simply deferred to the Commission's evidentiary

prerogative. The court found that DaimlerChrysler's challenges involved the weight of the

evidence, not the admissibility of the evidence. (Court of Appeals' Decision pp. 7) However,

the court of appeals has held on numerous other occasions that some reports were so deficient for

PTD purposes, for a variety of reasons, that the Commission abused its discretion by relying on

the reports. See, e.g., State ex rel. Borden Chem., Inc. v. Mourn. Franklin App. No. 03AP-1213,

2005-Ohio-1121 (eliminating from consideration a doctor's opinion which included impairment

from a surgery for a nonallowed condition); State ex rel. Hursey v. Indus. Comm., Franklin App.

No. 04AP-292, 2005-Ohio-198 (removing from evidentiary consideration a doctor's report

which was deemed "conflicting and ambiguous" for opining that a claimant was precluded from

ever returning to "work activity," but ultimately concluding that the claimant was capable of

sedentary work); and State ex rel. Sears v. H. Dennert Distrib. Corp., Franklin App. No. 03AP-

820, 2004-Ohio-4042 (rejecting a psychiatrist's report opining that "in a strict sense" the allowed

psychological condition did not prevent the claimant from returning to work, but "in a practical

sense" he was not a good candidate for employment). The removal of those reports from

evidentiary consideration went to their admissibility, not the weight they were to be given.

21

The reports of Dr. Hejeebu, Dr. Damrauer and Mr. Havranek were so deficient, for the

reasons set forth above, that the Commission should have rejected them. When the Commission

instead relied on the reports as the basis for its decision to award Majerowski PTD benefits, it

abused its discretion by issuing an order which was not supported by some evidence.

22

CONCLUSION

The Commission abused its discretion when it granted Majerowski's second PTD

application. The Commission did not address Majerowski's failure to make any effort to seek

retraining or otherwise enhance his re-employment potential even though, eleven years earlier, it

expressly found him to be a viable candidate for successful retraining. This was a critical issue

to the second PTD determination, and the Commission abused its discretion by failing to address

it. The Commission also abused its discretion by relying on reports which were not some

evidence to support its order granting PTD benefits. Accordingly, DaimlerChrysler requests that

this Court reverse the judgment of the court of appeals and issue a writ of mandamus ordering

the Commission to vacate its December 22, 2004 and February 9, 2005 orders and to enter a new

order denying Majerowski PTD compensation. In the alternative, DaimlerChrysler requests that

the Court issue a limited writ ordering the Commission to vacate its December 22, 2004 and

February 9, 2005 orders and to conduct further proceedings and issue an amended order either

granting or denying the PTD application based on some evidence, with specific consideration of

Majerowski's failure to seek retraining or otherwise enhance his re-employment potential.



Thomas A. Dixon `(0"017879)Richard L.Johnson (0064260)One SeaGate, 24th FloorP.O. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Facsimile: (419) 247-1777


23

PROOF OF SERVICE

A copy of the foregoing Merit Brief of Appellant DaimlerChrysler Corporation was sent

by regular U.S. Mail on this ^day of August, 2007 to Kurt M. Young, Esq., Law Offices of

Kurt M. Young, LLC, 709 Madison Avenue, Suite 307, Toledo, Ohio 43624, counsel for

appellee, Ronald J. Majerowski; and to Charissa D. Payer, Esq., Assistant Attorney General,

Workers' Compensation Section, 150 East Gay Street, 22nd Floor, Columbus, Ohio 43215-3130,

counsel for appellee, Industrial Commission of Ohio.


Counsel for AppO{drit,DaimlerCluysler Corporation

24

APPENDIX

25

c4r/q//o3s10

JISTMAN & 8MlTFIItECEIVEp

JAN 2 4 2007




State of Ohio, ex rel. Case No.DaimlerChrysler Corporation,

Appellant, On Appeal from the Franklin CountyCourt of Appeals, Tenth Appellate District

V.

Ronald J. Majerowski and Court of Appeals Case No. 05AP-1103Industrial Commission of Ohio,

Appellees.

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s=s-s-s-s-s-s-s-s-s-s=s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s

NOTICE OF APPEAL OF APPELLANT DAIMLERCHRYSLER CORPORATION

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-sThomas A. Dixon (0017879)Richard L. Johnson (0064260)Eastman & Smith Ltd.One SeaGate, 24'^ FloorP.O. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Facsimile: (419) [email protected]


JAN 27107

MARCIA J MENGEL, CLERK. UPREME COURT OF 0 10

Kurt M. Young (0061917)709 Madison Avenue, Suite 307Toledo, Ohio 43624Telephone: (419) 244-7885kmy(iJkmylaw.com


Charissa D. Payer (0064452)Assistant.Attomey GeneralWorkers' Compensation Section150 East Gay Street, 22°d FloorColumbus, Ohio 43215Telephone: (614) 466-6696cpaver ^r,,,,ag,state.oh.us


Notice of Appeal of Appellant DaimlerChrvsler Corporation

Appellant DaimlerChrysler Corporation hereby gives notice of appeal to the

Supreme Court of Ohio from the judgment of the Franklin County Court of Appeals, 'renth

Appellate District, entered in Court of Appeals Case No. 05AP-1103 on December 11, 2006.

This case originated in the court of appeals.



By:ichard L.Johnson^


CERTIFICATE OF SERVICE

1 certify that a copy of this Notice of Appeal was sent by ordinary U.S. Mail onthis/'Viay of January, 2007 to Kurt M. Young, Esq., 709 Madison Avenue, Suite 307, Toledo,Ohio 43624, counsel for appellee, Ronald J. Majerowski; and Charissa D. Payer, AssistantAttorney General, Workers' Compensation Section, I50 East Gay Street, 22nd Floor, Columbus,Ohio 43215, counsel for appellee, Industrial Commission of Ohio.

Richard L. JohnsoCounsel for Apper'r'ant,DaimlerChrysler Corporation

I I:\HOME\AMKenney\RIJ\IX'C'\Majerowski - Nolice of AppeaLDO(.'

2

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel.DaimlerChrysler Corporation,

Relator,

V.

Ronald J. Majerowski andthdustrial Commission of Ohio,

Respondents.

'iiJ .L, . I '.i 37 Qii

EE"`, iiJiTJ

No. 05AP-1103

(REGULAR CALENDAR)

.n m ,M NT NTRY

For the reasons stated in the decision of this court rendered herein on December 7,

2006, we adopt the magistrate's decision as our own except as modified by reviewing the

magistrate's conclusions that Majerowski's 33 percent PPD award and two surgeries were

evidence supporting the commission's decision to award PTD, and that the commission's

conclusion was based "solely" on Majerowski's medical conditions. The objection of Ronald J.

Majerowski is overruled. Relator's request for a writ of mandamus directing the commission to

vacate its award of PTD is denied. Relator's request for a wdt of mandamus for the limited

purpose of considering the effective date of the award is hereby granted and this matter is

remanded to the commission for proceedings consistent with this decision.

Within three (3) days from the filing hereof, the clerk of this court is hereby ordered to

serve upon all parties not in default for failure to appear notice of this judgment and its date of

entry upon the journal.

aCC

Judpa-Wiiliam A. Kla P -Jr,,rr7r„ ^

Judge l:isa L. Sadler

^--^'

3

EASRECEIVEDSMITH

DEC 12 2005

IN THE COURfi OF APPEALS OF OHIO


State of Ohio ex rel.DaimlerChrysler Corporation,

Relator,

v.

Ronald J. Majerowski andIndustrial Commission of Ohio,

Respondents.

Ut t`it ! b! SI p

CLU(1 VCC ti/ /^1,♦r•;

0 VRTS 4

No. 05AP-1103

(REGULAR CALENDAR)

D E C I S I O N

Rendered on December 7, 2006

Eastman & Smith LTD., Thomas A. Dixon and Richard L.Johnson, for relator.

Law Offices of Kurt M. Young, LLC, and Kurt M. Young; LawOffrces of Robert W. Fiedler and Robert W. Fiedler, forrespondent Ronald J. Majerowski.

Jim Petro, Attomey General, and William J. McDonald, forrespondent Industrial Commission of Ohio.

IN MANDAMUSON OBJECTIONS TO MAGISTRATE'S DECISION

SADLER, J.

{i1} Relator, DaimlerChrysler Corporation ("relator") filed this original action

seeking a writ of mandamus directing respondent, the Industrial Commission of Ohio ("the

4

No. 05AP-1103 2

commission"), to vacate its award of permanent total disability ("PTD") to respondent,

Ronald J. Majerowski ("Majerowski"). Alternatively, relator requests issuance of a limited

writ of mandamus directing the commission to conduct further proceedings regarding

relator's request to re-adjust the start date for the PTD award.

{12} We referred this matter to a magistrate pursuant to Rule 12(M) of this court

and Civ.R.53(D). The magistrate issued a decision dated May 8, 2006. (Attached as

Appendix A.) In that decision, the magistrate concluded that relator is not entitled to a writ

of mandamus on the award of PTD, but is entitled to a writ of mandamus for the limited

purpose of directing the commission to reconsider the starting date of Majerowski's PTD

award. Both relator and Majerowski filed objections to the magistrate's decision. The

commission filed a response in which it conceded that some of the reasoning for the

magistrate's decision was not correct, but argued that the magistrate nevertheless

reached the correct conclusion.

{13} The parties presented joint stipulations regarding the evidence upon which

the commission based its award. For purposes of brevity, we will not restate the

magistrate's findings of fact, but will instead briefly summarize them. The evidence

shows that Majerowski was injured during the course of his employment with relator on

October 19, 1985. His claim has been allowed for lumbosacral strain, herniated disc at

L5-S1, bulging disc at L5-S1, aggravation of pre-existing arthritis from L3-4 to L5-S1,

fibrosis at L5-S1, depression, and anxiety. His claim has been specifically disallowed for

disc narrowing at L3-4, L4-5 and L5-S1, and for spinal stenosis from L34 to L5-S1.

{14} In December 1990, Majerowski filed an application seeking an award for

PTD. In February 1993, the commission denied the application based on a number of

5

No. 05AP-1103

vocational factors. Specifically, the commission found that his low to moderate

impairment suggested that there were a number sedentary and light jobs he was capable

df performing, and that his relatively young age of fifty two years suggested some

potential to be successfully trained for some sedentary and light jobs. In 1996,

Majerowski was granted a 33 percent permanent partial disability ("PPD") award, and

thereafter entered into a settlement agreement with relator regarding any further PPD

awards.

{15} In April 2004, Majerowski filed another application for PTD. He had not

worked since the date of injury, nor had he participated in retraining. In support of his

application, Majerowski offered a physical impairment questionnaire prepared by Srini

Hejeebu, M.D., a report regarding his psychological condition prepared by Beverly

Damrauer, Ph.D., and a vocational report prepared by Joseph Havranek, Ed.D. Based

on those reports, a commission staff hearing officer granted Majerowski's PTD application

and set the start date for the award at April 27, 2002. Relator requested reconsideration

of the order granting PTD or in the altemative, of the order setting the start date at

April27, 2002. The commission denied the request for reconsideration of the order

granting PTD, but did not address the request for an adjustment of the starting date.

{16} In order to establish the right to a writ of mandamus, relator must show that

the commission abused its discretion by entering an order that is not supported by any

evidence in the record. State ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76.

Where the record shows "some evidence" supporting the commission's findings, there is

no abuse of discretion, and mandamus is not appropriate. State ex ref. Lewis v. Diamond

Foundry Co. (1987), 29 Ohio St.3d 56. The magistrate found in this case that there was

6

No. 05AP-1103

some evidence in the record to support an award of PTD to Majerowski, and therefore

concluded that relator is not entitled to a writ of mandamus on that issue. However, the

magistrate also concluded that the commission's order did not adequately explain the

reasons for setting the start date at April 27, 2002, and found that a writ of mandamus

s6ould be issued directing the commission to hold a hearing for the purpose of

determining the date the PTD award should have taken effect.

{17} Relator first argues that the magistrate erred in concluding that the

commission did not abuse its discretion by granting Majerowski a PTD award without

discussing his failure to obtain any retraining. In connection with this argument, relator

claims that the evidence fails to show any worsening of Majerowski's medical condition

subsequent to the 1993 denial of PTD that is related to his allowed conditions, that any

change in Majerowski's medical condition is related more to the aging process, and that

Majerowski's failure to seek retraining should preclude him from obtaining a PTD award.

{18} The magistrate correctly pointed out that a PTD award cannot be based

solely on the fact that a claimant has gotten older. State ex reL Burke v. Indus. Comm.

Franklin App. No. 03AP-1256, 2004-Ohio-5156. However, the magistrate concluded that

in Majerowski's case, the aging process is not the only thing that has happened. In part,

the magistrate relied on the fact that since Majerowski's PTD daim was denied in 1993,

he was awarded a 33 percent PPD award and underwent two surgeries. Relator argues,

and the commission concedes, that these two pieces of information do not support the

magistrate's conclusion that Majerowski's allowed conditions had worsened since 1993.

(19} The evidence shows that the 33 percent PPD award occurred after

Majerowski's first PTD claim was denied in 1993, and did not reflect an increase of an

7

No. 05AP-1103

already existing permanent partial disability award. Thus, the PPD award does not reflect

a worsening of Majerowski's condition. The evidence also shows that the two surgeries

Majerowski underwent in 2003 were for the purpose of relieving compression related to

multilevel cervical spondylosis and severe spinal stenosis. These are not conditions that

h6d been previously allowed; in fact, spinal stenosis was a specifically disallowed

condition. Therefore, we reject those portions of the magistrate's decision concluding that

the 33 percent PPD award and surgeries Majerowski underwent were evidence

supporting the commission's decision to award PTD after having previously denied the

claim.

{110} Relator also argues that the magistrate incorrectly stated that the

commission's conclusion to award PTD was based "solely" on Majerowski's medical

conditions. In its response to relator's objections, the commission points out that its

decision was based on factors in addition to Majerowski's medical conditions. Therefore,

we also reject that portion of the magistrate's decision stating that the commission's

decision was based "solely" on the medical conditions.

{111} Next, relator argues that the commission and the magistrate improperly

relied on the medical opinion rendered by Dr. Hejeebu in reaching the decision to award

PTD. Specifically, relator first argues that the magistrate incorrectly stated that Dr.

Hejeebu gave his opinion that Majerowski's condition had worsened over time, and that

Dr. Hejeebu's report demonstrated significantly greater physical limitations than had

existed in 1993.

{112} Dr. Hejeebu's report does not use any specific language stating that

Majerowski's condition had worsened over time. The report does state that Dr. Hejeebu

No. 05AP-1103

had seen Majerowski during monthly office visits. The report also identifies a number of

restrictions Majerowski would have to follow in order to be employed, including an inability

to sit for more than 45 minutes at a time or for more than a total of two hours during an

eight-hour workday, the need to perform a job that would allow shifting from standing to

sttting aYwill; the need to take unscheduled breaks every haif hour and rest for half an

hour to an hour before returning to work, the inability to lift objects greater than ten

pounds, and the inability to engage in any stooping or crouching. The report concludes

with Dr. Hejeebu's opinion that based solely on the conditions atiowed in the claim,

Majerowski is incapable of sustained remunerative empioyment.

.1113} In its bnef and in the objections to the magistrate's decision, relator

challenges the magistrate's reiiance on Dr. Hejeebu's report on a number of grounds.

First; °relator argUes that the report should not be considered because when asked to give

a dgte on which Majerowski's condition caused him to be unable to sustain remunerative

employment, Dr. Hejeebu gave the date of October 1985, the time of the. original injury.

Relator argues that this statement exhibits the doctors disagreement with the

commission's 1 1993 denial of PTD, and the magistrate should therefore not have relied

upon the report.

{114} 'Second, relator argues that the magistrate incorrectly stated that Df.

Hejeebu's report concluded that Majerowski could not sustain remunerative employment

"at this point In time." Relator points out that the report was prepared before Majerowski

underwent the two surgeries, and that the circumstances had therefore changed by the

time the commission was considering whether Majerowski was capable of sustaining

remunerative employment. However, Dr. Hejeebu's report speciflcally 5tetes that his

^ ^N

No. 05AP-1103 7

opinion was based on the allowed medical conditions, which, as relator pointed out, did

not include the medical conditions for which the surgeries were performed.

(1151 Ultimately, the arguments set forth in support of relator's contention that Dr.

Hejeebu's report should not have been considered relate to the weight to be given to

those reports, and not to their general admissibility. The commission is the sole evaluator

of the weight and credibility of evidence presented to it. State ex rel. Burley v. Coil

Packing, Inc. (1987), 31 Ohio St.3d 18, 508 N.E.2d 936. Thus, the commission was in

the position of deciding any issues related to the weight to be given Dr. Hejeebu's report,

and the magistrate did not err in finding that the commission did not abuse its discretion in

making those determinations.

(116) The same conclusion applies to relators contention that the magistrate

failed to consider the commission's lack of discussion of Majerowski's failure to obtain any

retraining. However, the commission has a duty only to discuss that evidence upon

which it relies, not to explain why it favors one piece of evidence over another. State ex

rel. Dobbins v. Indus. Comm. (2006), 109 Ohio St.3d 235, 2006-Ohio-2286, 846 N.E.2d

1243.

(117) In its second objection, relator argues that the magistrate erred by finding

that the commission did not abuse its discretion by awarding PTD where there was not

"some evidence" to support the award. In its merit brief, relator set forth a number of

challenges to the various medical reports upon which the commission relied. However,

as stated above in our discussion of the attacks on Dr. Hejeebu's report, the challenges

involve the weight to be given to the reports, not whether the commission should have

refused to consider them, Thus, the commission's decision to award Majerowski PTD

10

No. 05AP-1103

was supported by some evidence, and the cqmmission did not abuse its discretion in

making the award.

{118} Majerowski also filed an objection to the magistrate's decision, arguing that

the magistrate erred in finding that the commission did abuse its discretion in granting the

&D award as of April 27, 2002. The commission used that date because pursuant to

R.C. 4123.52, the commission could not make the award effective more than two years

prior to the date of Majerowski's application. The only evidence in the record supporting

determination of the date was Dr. Hejeebu's report stating that Majerowski had been

unable to sustain remunerative employment since October 1985. The magistrate found

that while the reference to October 1985 would not negate a current award of PTD, it did

evidence an irreconcilable conflict between the report and the commission's 1993 denial

of PTD. Thus, the magistrate concluded that a writ of mandamus should be issued to the

commission directing it to give further consideration to the date on which the PTD award

should be deemed effective.

{$19} We agree with the magistrate's conclusion that a writ of mandamus is

appropriate for the limited purpose of directing the commission to reconsider the date on

which Majerowski's PTD should have taken effect. Therefore, we overrule Majerowski's

objection.

{120} In conclusion, we hereby modify the magistrate's decision by removing the

magistrate's conclusions that Majerowski's 33 percent PPD award and two surgeries

were evidence supporting the commission's decision to award PTD, and that the

commission's conclusion was based "solely" on Majerowski's medical conditions. We

adopt the magistrate's decision, as modified, as our own.

ti

No. 05AP-1103

{121} Relator's request for a writ of mandamus directing the commission to vacate

its award of PTD is denied. Relator's request for a writ of mandamus for the limited

purpose of considering the effective date of the award is hereby granted and this matter is

remanded to the commission for proceedings consistent with this opinion.

Objections overruted except as noted in the decision;writ granted.

KLATT, P.J., and TRAVIS, JJ., concur.

12

No. 05AP-1103 10

(APPENDIX A)

IN THE COURT OF APPEALS OF OHIO


State of Ohio ex rel.D"aimlerChrysler Corporation,

Relator,

V. No. 05AP-1103

Ronald J. Majerowski and (REGULAR CALENDAR)Industrial Commission of Ohio,

Respondents.

MAGISTRATE'S DECISION

Rendered on May 8, 2006

Eastman & Smith LTD., Thomas A. Dixon and Richard L.Johnson, for relator.

Law Offices of Kurt M. Young, LLC, and Kurt M. Young; LawOffices of Robert W. Fiedler and Roberf W. Fiedler, forrespondent Ronald J. Majerowski.

Jim Petro, Attorney General, and William J. McDonald, forrespondent Industrial Commission of Ohio.

IN MANDAMUS

{122} Relator, DaimlerChrysler Corporation, has filed this original action

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

13

No. 05AP-1103 11

Commission of Ohio ("commission") to vacate its order which granted permanent total

disability ("PTD") compensation to respondent Ronald J. Majerowski ("claimant"), and

ordering the commission to find that claimant is not entitled to that compensation.

Findings of Fact:

{123} 1. Claimant sustained a work-related injury on October 19, 1985, and his

claim has been allowed for "lumbosacral strain; herniated disc at L5-S1 level; depression

and anxiety; bulging disc at L5-S1; aggravation of pre-existing arthritis from L34 to L5-

St; and fibrosis at L5-S1"

{124} 2. Claimant has not worked since the date of injury.

{1[25} 3. Claimant filed his first application for PTD compensation on

December 12, 1990. At the time, claimant was 50 years of age.

(126} 4. On August 25, 1992, claimant's application was heard before the

commission and was denied. The commission relied upon medical reports which

indicated that claimant was capable of some sedentary employment and analyzed the

vocational factors as follows:

* * * The claimant is fifty-two years old, has an eighth gradeeducation, and a vocational history as a metal model maker.While the Commission recognizes the claimant's prior workexperience has failed to afford him transferable work skills, aconsideration of the claimant's retativeiy young agesuggests the claimant is a viable candidate for success-ful retraining. The ciaimant's low to moderate impair-ment suggests there are a number of sedentary andlight jobs for which the claimant is physically capable.Furthermore, the claimant's age of fifty-two years of agesuggests he has the opportunity, potential, and motivation tobe successfully trained for some sedentary and light jobs,such as unskilled or semi-skilled clerical work. Therefore,notwithstanding his present lack of skills and below averageeducational level, the Commission determines the claimant

14

No. 05AP-1103 12

to be reasonably qualified for successful vocational trainingfor jobs compatible with his physical limitations. Accordingly,his application for permanent total disability is denied.

(Emphasis sic.)

{127) 5. In October 1996, claimant was awarded 33 percent permanent partial

disability for his allowed condition.

(128) 6. On April 27, 2004, claimant filed his second application for PTD

compensation. At the time, claimant was 64 years old. On his. application, claimant

indicated that he had graduated from the eighth grade and had left school when he began

working. Claimant did not obtain his GED. Claimant indicated that he was able to read,

weite, and perform basic math.

{129) 7. In support of his second application for PTD compensation, claimant

submitted a physical impairment questionnaire from Srini Hejeebu, M.D., who had been

seeing claimant on a monthly basis. Dr. Hejeebu opined that claimant's pain and other

symptoms were severe enough that they interfered with his attention and concentration,

that his ability to sit continuously at one time is limited to only 45 minutes, and that

claimant can sit for a total of less than two hours during the course of an eight hour work

day, with normal breaks. Dr. Hejeebu indicated that claimant would need a job which

permits him to change position at will from sitting to standing to walking, and that he

needs to take unscheduled breaks approximately every one-half hour. Dr. Hejeebu also

noted that claimant would have to rest for one-half hour to one hour before returning to

work, that claimant sometimes needs to lie down at unpredictable intervals, that claimant

is unable to lift or carry objects greater than ten pounds for less than one-third of a work

day, and that he was completely prohibited from stooping or crouching.

15

No. 05AP-1103 13

{130} 8. Claimant also submitted the December 12, 2002 report from Beverly R.

Damrauer, Ph.D. Dr. Damrauer noted that claimant continues with a mixed mood

disturbance and interpersonal withdrawal; that his physical pain is chronic and typically

high despite multiple medical interventions; and that claimant is discouraged, his

d6enses are low and his coping strategies are almost nonexistent. She noted that

claimant's singular interests tend to be nonphysical and avoiding people, and that his total

psychological picture is not supportive of sustained remunerative employment. While she

did recommend that claimant not give up all hope, she indicated that, at the very best, he

could perform some very part-time work provided that he has flezibility and minimal

physical demands.

{131} 9. Claimant also submitted the vocational report of Joseph E. Havranek

who noted that claimant has a limited education and a work history which is entirely

medium in physical exertional level and that claimant is 64 years old. Mr. Havranek

opined that claimant was incapable of any sustained remunerative employment based

solely upon the allowed conditions in his claim.

{132} 10. The record also contains the medical report of Paul J. Eby, M.D., dated

June 18, 2004. Dr. Eby concluded that claimant had the physical ability to perform light to

sedentary work activity and opined that there were other nonallowed conditions, including

coronary artery disease, lumbar spinal stenosis and cervical spinal stenosis, which had

worsened claimant's overall physical condition.

{133} 11. The record also contains the August 9, 2004 report of Harvey A.

Popovich, M.D., who opined that claimant had reached maximum medical improvement

16

No. 05AP-1103 14

("MMI"), assessed a ten percent whole person impairment due to the allowed conditions,

and opined that claimant was capable of performing sedentary work activity.

(134) 12. The record also contains the August 18, 2004 report of Donald J. Tosi,

Ph.D., who examined claimant for his allowed psychological condition. Dr. Tosi opined

t6at claimant's allowed psychological condition had reached MMI, assessed a 20 percent

whole person impairment, and opined that claimant could return to his former position of

employment or any other employment for which he was otherwise qualified.

{135} 13. The record also contains the November 15, 2004 vocational report of

Anthony Stead who opined that claimant's age of 64 years should not be considered a

barrier to reemployment as he still retains the ability to learn new skills and adapt to new

environments. Mr. Stead concluded that claimant's educational level should be sufficient

for entry-level, unskilled and semi-skilled tasks and that his work history should not be

considered a barrier to reemployment.

(136) 14. Claimant's application was heard before a staff hearing officer ("SHO")

on December 6, 2004, and resulted in an order granting the requested compensation.

The SHO relied upon the medical reports of Drs. Hejeebu and Damrauer and the

vocational report of Mr. Havranek. In accepting claimant's severe physical restrictions,

the SHO provided the following analysis:

In support of his IC-2 Application for Compensation forPermanent Total Disability, filed 4/27/2004, the InjuredWorker submitted the Physical Impairment Questionnairecompleted by the Injured Worker's attending physician, SriniHejeebu, M.D. Dr. Hejeebu indicates that the InjuredWorker's impairments are permanent and that he will fre-quently experience pain or other symptoms severe enoughto interfere with attention and concentration. More import-antly, Dr. Hejeebu indicates that the Injured Worker's ability

17

No. 05AP-1103 15

to sit continuously at one time is limited to only 45 minutesand that he can sit for a total of less than 2 hours in an 8hour working day, with normal breaks. Dr. Hejeebu alsoindicates that the Injured Worker would need a job whichpermits shifting of positions at will from sitting to standing orwalking. He also jndicates that the patient needs to takeunscheduled breaks approximately every half an hour duringan 8 hour working day, and that he would have to rest onehaff hour to one hour before returning to work. He also statesthat the Injured Worker would sometimes need to lie down,at unpredictable intervals during a work shift. The InjuredWorker's ability to lift and carry objects in a competitive worksituation would be limited to less than 10 pounds for afrequency of less than 1/3 of the working day. He would betotally prohibited from any stooping or crouching.

The United States Court of Appeals, for the Sixth Circuit, haspreviously addressed the issue of whether a person with therestriction of limited sifting and the requirement of a sit/standoption is capable of performing sustained remunerative

ofemployment. In the case of Wages v. The SecretaryHealth and Human Services, the Court of Appeals statedthat "Such an individual is not functionally capable of doingeither the prolonged sitting contemplated in the definition ofsedentary work or the prolonged standing or walkingcontemplated for most light work. ...There are some jobs inthe national economy - typically professional and man-agerial ones - in which a person can sit or stand with adegree of choice. ...However,.mostjobs have ongoing workprocesses which demand that a worker be in a certain placeor posture for a certain length of time to accomplish a certaintask. Unskilled types of jobs are particularly structured sothat a person can not ordinarily sit or stand at will."

Furthermore, the Court of Appeals of Ohio, for the TenthAppelet [sic] District, also addressed that sit/stand issue in asimilar situation in the case of Cable v. IndustrialCommission ( 1999), no. 98 AP-1300. In that case, theInjured Worker was found to be capable of doing sedentarywork activities, but she was also required to have the optionto have "some modification and flexibility in her sch-edule...whicll would allow her to move about some and, inaddition, she could do activities with a 10-pound lifting limit, ifshe had a sit/stand option." The Court of Appeals found thatit could not be adequately explained how those restrictions

is

No. 05AP-1103 16

imposed upon the Injured Worker would be in accord withthe Industrial Commission's definition of sedentary workunder Ohio Administrative Code Section 4121-3-34(B)(2)(a).

Thus, it is the finding of this Staff Hearing Officer that it isextremely unlikelv.that any employer in the work force wouldbe willing to hire the Injured Worker in this claim, who mustbe restricted to sifting a total of less than 2 hours in an 8hour work day, with an ability to shift positions from sitting tostanding or walking at will, a need to take unscheduledbreaks every half an hour, with a break lasting one half toone hour. Therefore, this Staff Hearing Officer finds theopinion of the Injured Worker's attending physician, SriniHejeebu, M.D., to be persuasive. Dr. Hejeebu stated hisprofessional medical opinion that his patient is not capable ofsustained remunerative employment, on the PhysicalImpairment Questionnaire dated 11/4/2002. Said opinion isfound to be persuasive.

(Emphasis sic.)

{137} The SHO also relied upon the report of Dr. Damrauer. As such, the

commission found that, based solely upon the allowed medical conditions, claimant was

entitled to PTD compensation. However, in spite of this finding, the commission went on

and addressed the nonmedical vocational factors as well. Specifically, the commission

determined that claimant, due to his age, was not eligible to participate in rehabilitation

services through the Ohio Bureau of Workers' Compensation. The commission

concluded that claimant's age affects both his functional capabilities as well as his ability

to develop new academic or other skills required to perform entry-level sedentary

employment. The SHO concluded that academic remediation or vocationally-oriented

training would not be a reasonable option based upon claimant's age. In reviewing

claimant's education, the commission noted that claimant had a limited education, with no

subsequent GED. The commission concluded that this presented a fairly negative

19

17

regarding employability and that claimant's education would be

i1y"sedentary dericai positions and that it would also effect his ability to

f,riic or other skills required to perform entry-level sedentary jobs. The

commissionetso found that ciaimant's work history did not provide him with any skills

wliich would be transferable to sedentary work. Thereafter, the commission determined

that the statt date for PTD compensation should be Apnl 27, 2002, and provided the

ollowing expianatton t#i'etefore:

Therefore; the Injured Worker is hereby awarded Permanentand Tfitat Disability Compensation, pursuant to OhioReVis;eii Code Section 4123.58(A), from 4/27/2002 through12/6f2004 and continuing thereafter without suspension,untess ^ future facts or circumstances waffant a change,puisUAht to Ohio Revised Code Section 4123.52. Thestattjrtg,&te of Permanent Total Disability Compensation isbased upon the 11/4/2004 report from the Injured Worker'sairtendingphysician, Srini Hejeebu, M.D., which indicates atline; 12of said report that the Injured Worker has beenincapable of sustained remunerative employment since thedate of October, 1985. However, Permanent Total DisabilityCompensation may not begin prior to 4/27/200[2], as OhioRevised Code Section 4123.52 provides that the IndustrialCommission "shall not make any modification, change,finding, or award which shall award compensation for a backperiod in excess of two years priot to the date of filingapplication therefore." Since the Injured Worker's IC-2Ap}}lication for Compensation for Permanent and TotalDisa.bility was filed on 4/27/2004, said award can not beginprior to 4/27/2002. .

{138} 15.' Relator filed a motion for reconsideration and, in the aiternative,

requested readjustment of the starting date for PTD compensation.

(139) 16. Relator's request for reconsideration was denied by order of the

commission mailed February 9, 2005. In that order, the commission did not address the

request for readjustment of the start date of compensation.

20

No. 05AP-1103 18

{140} 17. Thereafter, relator filed the instant mandamus action in this court.

Conclusions of Law:

{141} 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. (1967), 11 Ohio St.2d 141. 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. tndus. Comm. (1986), 26 Ohio St.3d 76. 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. (1987), 29 Ohio St.3d 56. 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. (1981), 68 Ohio St.2d 165.

(9[42} The relevant inquiry in a determination of permanent total disability is the

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

v. Indus. Comm. (1994), 69 Ohio St.3d 693. 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 nonmedical factors. State ex rel Stephenson

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

is not dispositive if the claimant's nonmedical factors foreclose employability. State ex rel.

Gay v. Mihm (1994), 68 Ohio St.3d 315. The commission must also specify in its order

21

No. 05AP-1103 19

what evidence has been relied upon and briefly explain the reasoning for its decision.

State ex ref. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203.

{143} In this mandamus action, relator asserts that the commission abused its

discretion in the following regards: (1) by granting claimant's second application for PTD

compensation without considering claimanYs failure to seek retraining or otherwise

enhance his reemployment potential; (2) by granting PTD compensation where there was

not "some evidence" to support same; (3) by commencing the award of PTD

compensation beginning April 27, 2002, without "some evidence" to support that

determination; and (4) by failing to adjudicate relator's request to readjust the start date

for claimant's PTD compensation.

{144} In its first argument, relator contends that the commission abused its

discretion by denying claimant's second application for PTD compensation without

addressing his failure to seek vocational retraining. Relator premises this argument on

the fact that claimant's first application for PTD compensation was denied after the

commission found that claimant retained the ability to perform sedentary work activity and

that, given his relatively young age, he had the opportunity to seek vocational retraining

for other employment. Relator argues that, in the intervening years, claimant's physical

condition has not really worsened and his failure to seek rehabilitation should preclude

the granting of a second application for PTD compensation. For the reasons that follow,

this magistrate disagrees.

{145} First, every application for PTD compensation is considered anew by the

commission. The fact that PTD compensation was denied at one point in time does not

necessarily mean that it will be denied in the future. Although relator is correct to argue

22

No. 05AP-1103 20

that the simple aging process, without more, does not provide a basis for granting a later

PTD compensation, that is not all that has happened in the present case.

{146} Second, the magistrate notes that claimant's first application for PTD

compensation was filed in 1990. At that time, claimant was 50 years old. The

cdmmission relied upon medical reports from physicians who opined that claimant

retained the physical ability to perform sedentary to light-duty work. Claimant's applica-

tion was denied by the commission in 1993. Claimant's second application for PTD

compensation was filed approximately ten years after the denial of his first application. In

the interim, claimant was awarded a 33 percent permanent partial impairment and

claimant had two surgical procedures performed. In July 2003, Brian Hoeflinger, M.D.,

performed a disectomy at C5-6 and C6-7. In September 2003, Dr. Hoeflinger performed

a disectomy at L3-4 and L4-5.

{147} Third, claimant's treating physician, Dr. Hejeebu, opined that claimant's

limitations had severely worsened. Dr. Hejeebu noted that claimant could only sit for 45

minutes at a time and could sit for less than two hours in a regular eight hour work day.

Dr. Hejeebu noted that claimant would need to be able to shift poskions from sifting to

standing to walking during the course of a day, would need to take unscheduled breaks

approximately every one-half hour and that his legs should be elevated if he sits for a

prolonged period of time. Dr. Hejeebu also noted that claimant needs to use a cane or

other assisted device when standing and walking and that he would need to lie down at

different times during the day. The commission relied upon this medical evidence. As

such, the commission accepted as competent, credible and persuasive medical evidence

which demonstrated significantly greater physical restrictions than claimant had in 1993.

23

No. 05AP-1103 21

{148} Fourth, at oral argument, counsel for the commission pointed out that, even

if claimant would have pursued some rehabilitation and assuming that claimant may have

even secured some employment for a period of time, the evidence upon which the

commission relied indicates that, at this point in time, claimant is not capable of

pd►fonning even sedentary work. The magistrate is persuaded by this argument.

t149} Based on the foregoing, the magistrate notes that claimant had two surgical

procedures and that, according to his treating physician, his limitations severely increased

in the time between his first application for PTD compensation and his second and, the

commission found that, based solely upon the medical conditions, claimant could not

perform any work. Both surgeries were performed after the commission's original order

denying PTD compensation. Furthermore, even if claimant would have pursued

rehabilitation in the last 11 years, he still would not be capable of performing some

sustained remunerative employment at this point in time. In light of this, this magistrate

finds that it was not an abuse of discretion for the commission to grant him PTD

compensation without discussing claimant's failure to seek any vocational retraining in the

interim between the denial of his first PTD application and the filing of his second PTD

application. This is not a situation where the only change in the claimant's condition is

that the claimant has aged. As such, this magistrate finds that it did not constitute an

abuse of discretion.

{150} Relator also contends that the commission abused its discretion because

the commission's order granting claimant PTD compensation is not supported by some

evidence. This magistrate disagrees. The commission relied upon the medical report of

Dr. Hejeebu and the severe limitations which Dr. Hejeebu placed upon claimant's abilities.

24

22

u: did not make the statement that claimant was permanently and

irnmission concluded that, based upon the severe limitations, there

his claimant could perform.

the commission specfically cited two cases, one from the_} In ^its- order,

4Urt of Appeals for the Sixth Circuit and this court's decision in. State ex

Franklin App. No. 98AP-1300. In Cable, thisrel:G"v tntlus.`Comm. (Sept. 28 1999), ,

cdur( granted a writ of mandamus ordering the commission to vacate an order denying an

application for PTD 'compensation based upon a determination that the medical

restrictionsimppsed upon the claimant in that case were very restrictive. While this court

hot order the commission to find that claimant was permanently and totally disabled,did

thit court, did oCder the commission to consider the severity of the restrictions and found

that a^more,tt7orough explanation and analysis was necessary.

{152} In the present case, this magistrate agrees with the explanation and

conclusion reached by the commission-this claimant is so severely restricted, from a

physical standpoint, that it is difficult to imagine any job which this parGcular claimant

could perform. Based upon that, this magistrate finds that the commission did not abuse

its discretion in finding that, from a medical standpoint alone, claimant herein is

permanentlyand.totally disabled.

(153} Relator also contends that the commission abused its discretion by

determining April 27, 2002 as the start date for the payment of PTD compensation.

Furthermore, relator contends that the commission abused its discretion by not

addressing that issue when relator raised it in its motion for reconsideration.

25

No. 05AP-1103 23

{154} In its brief, the commission acknowledged that it should have separately

addressed relator's request to readjust the start date for PTD compensation. Although

the commission argues that a writ of mandamus is not necessary inasmuch as Dr.

Hejeebu opined that the restrictions he placed on claimant were permanent and had been

ineffect since 1985, the magistrate still finds that it is questionable whether or not the

commission should have awarded PTD compensation back two years prior to the date of

claimant's application as more fully explained hereinafter. Dr. Hejeebu issued his report

on November 4, 2002. Claimant filed his application for PTD compensation on April 27,

2004, and submitted the report of Dr. Hejeebu. Pursuant to R.C. 4123.52, the

commission could not make an award for more than two years prior to the date of

claimant's application. That is why in the present case, the commission awarded

compensation to begin April 27, 2002. The commission asserts, in its brief, that this

decision was made because Dr. Hejeebu indicated that the restrictions on claimant were

in effect since 1985. However, that finding negates the fact that, as of 1993, the

commission found that claimant was not permanently and totally disabled and, instead,

found that claimant was capable of at least sedentary work. As such, this magistrate

finds that it was an abuse of discretion for the commission to grant the award of PTD

compensation as of April 27, 2002, without a further explanation for that, especially in light

of the fact that the commission, in 1993, did not believe that claimant was under those

physicat restrictions. As such, the magistrate finds that a w(t of mandamus is appropriate

relative to the start date of the award of PTD compensation.

(155} Based on the foregoing, this magistrate finds that relator has not

demonstrated that the commission abused its discretion in awarding claimant PTD

26

No. 05AP-1103 24

compensation; however, relator has demonstrated that the commission abused its

discretion by setting the start date for the payment of PTD compensation as of April 27,

2002. As such, a writ of mandamus is appropriate in the present case to compel the

commission to redetermine the start date of claimant's PTD compensation.

Is/ Stephanie Bisca BrooksSTEPHANIE BISCA BROOKSMAGISTRATE

27

The 1ndaserial commLsslon orobk

RECORD OF PROCEEDINGS

I

Claim Number: 898905-22LT-ACC-SI-COV

PCN: 2050181 Ronald J. Majarowski

RONALD J. MAJEROWSKI12 SDUTH LATHROP RDSNANTON OH 43558-9676

Glaims Heard: 898905-22

Date of Injury: 10/19/1985 Risk Number: 20002667-0

Request For Reconsideration filed by Employer on 01/06/2005.Issue: 1) Continuing Jurisdiction Pursuant To Ohio Revised Code 4123.52

2) Permanent Total Disability

TheRequest for Reconsideration filed 01/06/2005, by the Employer from the^findings mailed 12/22/2004, is denied for the reason that the request failsto meet the criteria of Industrial Commission Resolution No. R98-1-3 DatedMay 6, 1998.

Typed By: CM/kdOate Typed: 01/27/2005

The abovefindings and order was approvedand confirmed by the majority ofthe members.

William E. Thompson )^YESChairperson

Donna Owens YESCommissioner

ATTESTED TO BY:

Findings Mailed:

r ^DL^r;l.4^., ^'"•+:,. `.^'' ^ a( ^ ^ C.C.^

PE8 0 9 200: Executive Direc r

F^Np^NGS MaO.EO

Page 1 kd/kd.

28

7he tnductslal Commission of Ohio

RECORD OF PROCEEDINGSClaim Number: 898905-22

The parties,and representatives 1lsted below have benn sent this record ofproceedings. If you are not an authorized representative of either theinSured worker or employer, please notify the Industrial Comeission.

898905-22Ronald J. Majerowski12 South Lathrop RdSwanton ON 43558-9676

Risk No: 20002667-0Da4lsler Chrysler CorporationJeep EagleWorkers Compensation4400 Chrysler DriveToledo OH 43608

ID No: 17122-90Fiedler,Robert202 N Erie StToledo OH 43624

ID No: 1694-80EsisPO Box 5061Southfield MI 48086

IO No: 1649-80Eastman & Smith LtdP0 Box 10032Toledo OH 43699

BWC, LAW DIRECTOR

( ICRECON2 - Commission Recon Denied/Clerical Error 5/01)

Page 2 kd/kd

29

^ Indadrtal Commiesioa of Ohlo •


Claim Number; 898905-22 Claims Heard: 898905-22LT-ACC-SI-COV

PCN: 2041191 Ronald J. Ma,ferowski

RONALD J. MAJERUWSKI12 SOUTH LA7HROP RDSWANTON OH 43558-9676

Date of Infury: 10/19/1985 Risk Number: 20002667-0

This matter was heard on 12/06/2004, before Staff Hearing Officer CharlesAnderson, pursuant to the provisions of Ohio Revised Code Section4121.35(B)(1) on:

IC-2 App For Cospensation Of Parmanent Total Disability filed by InjuredWorker on 04/27/2004.Issue: 1) Permanent Total Disability

Notices were mailed to the in,iured worker, the employer, their respectiverepresentatives and the Administrator of the Bureau of Workers'Compensation not less than 14 days prior to thfs date, and the followingwere present at the hearing:

APPEARANCE FOR THE INJURED WORKER: Injured Worker and wife,Jeanne Ma,ierowski andRobert Fiedler, atty.

APPEARANCE FOR THE EMPLOYER: Richard Johnson, atty.APPEARANCE FOR THE ADMINISTRATOR: No Appearance

It is the finding of this Staff Hearing Officer that this claim has beenaTlowad for:

LU60SACRAL STRAIN; HFRNIATED DISC AT L5-S1 LEVEL; DEPRESSION AND ANXIETY;BULBINO DISC AT L5-S1; AGGRAYATION OF PRE-EXISTING ARTHRITIS FRON L3-4 TOL5-51; AND FIBROSIS AT L5-S1.

THIS CLAIM HAS BEEN PREVIOUSLY DISALLOWED FOR: DISC NARROWING AT 1.3-46ING-S PJU11L1.4-5 AND L5-S1; AND SPINAL STENOSIS FRON L3-4 TO L5-Si.

,D EC 2 z 2004

After full consideration of the issue, itis the order of this Staff TaLEDOHearing-0fficer that the Application filed 04/27/2004, for Peraanent an^Total Disability Compensation, be GRANTED to the following extent:

Permanent and Total Disability Compensation is hereby awarded from4/27/2002, less any compensation which may have been previously awardedfrom said date, and to continue without suspension unless future facts orcircumstances should warrant the stopping of the award; and that payment bemade pursuant to Ohio Revised Code Section 4123.58(A).

All medical reports and evidence contained in the Industrial Conmissionfile, as wall as the evidence and arguments presented at hearing, werereviewad, considered and evaluated. This order is based particularly uponthe reports of Srini HeJeebu, M.D:; Beverly R. Danrauer, Ph.D. and JosephE. Havranek, Ed.D., C.R.C.

Page I mr/mr

30

•Indmtzial Commtdon otOhlo •


4

CJaia Number: 898905-22

The Injured Worker began employment with the Jeep Division of DaimlerChrysler Corporatlon in 1962, as a Synthetic Spreyer In the PaintDeptrtment. He was a Sheet Metal APprentice from 1965 to 1970, a ModelMaker from 1970 to 1972 aed performed Layout Ins pecticn from 1973 to 1984.He was aya1n working as a Metal Model Maker in 1985 when he sustained theinjury allowed in this claim. He did not return work after the date ofinjury of 10/19/1985. He officially retired from Daimler ChryslerCorporation on 6/30/1990. All of the occupations performed at DaimlerChrysler Corporatinn were physically demanding Jobs, which ranged frommedium to heavy in terms of physical demands.

The InJ4rpd Worker's industrial inJury recognized in this claim occurred on10/19/1985, while he was lifting a spot welding gun from the floor to place1t on a cart. As he twisted his back and lifted the spot welding gun 8 to10 fnches from the floor, he felt a snap In his back. He had an abruptonset of pain in the left low back area which began radiating into the leftleq He was initially treated conservatively, for the initial diagnosis ofa luaibosacra? strain. When conservative treatment did eot alleviate hiscondition, he was referred to a neurosurgeoe, Leo J.P. C1ark, M.D., whoord'ered a myelograht for dia ynostic purposes. On 1/14/1986, said etyelogramrevealed an L5-S1 disc hernietion. Or. Clark then performed sur gery, atthe 15-S1 level on 1/17/1986. The Injured Worker subsequently chtngedphysician's to Dr. Greenblatt at the Medical College Of Ohio. A repeatsyelogram and CT-scan were performed on 10/9/1986, which revealed a bulgingdisc at the L5-S1 level which extends out into the exiting nerve rootforulna on both sidts. Therefore, nr. Greenblatt recoemended furtherextensive surgery. However, the Injured Worker refused to undergo therecommended surgery, due to a fear that his condition may worsen aftersurgery.

The Employer referred the InJured Worker to an Independent OrthopedicSpecialist, S.S. Purewal, M.D., on 10/5/198B, for an opinion in regard tothe In,iured Worker's disability ratated to the industrial inJury of10/19/1985. Dr. Purewai stated his professional orthopedic opinion that "Ido not feel that this patient can now, or will ever be able to, return tohis former position of employment at Jeep, which fnvolved heavy manualwork, along with repetitive bending and lifting. ... I feel that he iscapable of remunerative employment, but that enployment will'haVe to be ofa totally sedentary type, with no lifting, twisting or prolonged standingor walking lnvolved in the job."

The InJured Worker developed a depressive condition due to his unrelentingback pain, as wall as his lnability to return to his former position of uINQu (VIAIL.employment and earn a living. Therefore, this claim was expanded toinclude the psychological conditions of depression and anxiety, puriuant to OfC zthe Industrial Commission order of June 14, 1909. When he was examned by 1,. 2 2005Jack M. Kenyon, M.D., a psychiatrist, on 4/28/1989, at the.request of theIndustrial Commission of Ohio, Dr. Kenyon stated that the Injured Workar's'(',,'(QL^nr%allowed psychological condition was likely to be a permanent condition.

The In,lured Worker contlnues to have pain in his back, exacerbated by anykind of bending. He also has difficulty standing for more than 5 to 10minutes before his back feels "weak" as 1f tt wants to "give out". If hegoes shopping, he has to lean onto a shopping cartfor support. He uses aTENS Unit, oicasionally. He has to take nuroerous medications, includingVioxx, FlexeriT, Vicodin and Percocet on regular basis, for his back pain.

In support of his IC-2 Application for Compensation for Permanent TotalDisability, filed 4/27/2004, the Injured Worker suhmitted the PhysicalImpairment Questionnaire completed by the Injured Worker's attendingphysician, Srin1 MRleebu, M.D. Dr. Hejeebu indicates that the InjuredWorker's lmpairments are permanent and that he will frequently experiencepain or other symptoms severe enough to interfere with attention andconcentration. More importantty, Or. HeJeebu indicates that the InjuredWorker's ability to sit continuously at one time is limited to only 45minutes and that he can sit for a total of less than 2 hgLCi in an 8 hour

31

•lndu.stsial Cosa mi8tou otQbb •

RECORD OF PROCEEDINGSClaim Number: . 898905-22

working day, with normal breaks. Dr. Hejeebu also indicates that theIn)ured Worker would need a job which permits shifting of positions at willfrom iittinq to standiny or walking. He also indicates that the patientneeds to take unscheduled breaks approximately every half an hour during an6 hour working day, and that he would have to rest one half hour to onehour before returning to work. He also states that the Injured Workerwould sometimes need to lie down, at unpredictable intervals during t workshift. The In,lured Worker's ebility to lift and carry objects in acompetitive work situattte would be limited to less than 10 pounds for afrequency of less than 1/3 of the working day. He would be totallyprohibited from any stooptng or crouching.

The Untted States Court of Appeals, for the Sixth Circuit, has previouslyaddresfed the tssuo of whether a person with the rastrictloe of limitedsitting and the requireieent of a sit/stand option is capable of pe rformingsustained resiunerative employment. In the case of W^qea v. Tha Sapretarv^yW^^ $krvieas, the Court of Appeals stated that "Such anindlvidua

isnot functionally capable of doing either the prolonged

sitting contemplated in the definition of sedentary work or the prolongedstmding or walking contemplated for most light work. ...There are someJobs in the national economy -- typically professional and managerial ones-- in which a person can sit or stand with a degree of choice. ...However,most ,(obs have ongoing work processes which demand that a worker be in acertain place or posture for a certain length of time to accomplish acertain task. Unskilled types of ,1obs are particularly structured so thata person can not ordinarily sit or stand at will."

Furthermore, the Court of Appeals of Ohio, for the Tenth Appelat District,also addressed that sit/stand issue in a similar situation.in the case of

^istr)ai Corissien ( 1999), no. 98 AP-130b. In that case, theIn urad Wdrk^r was found to be capAble of doing sedentary work activities,but she was also requtrod to have the option to have "some modification andflexibility in her schedule...which would aliow her to move about some and,1. addition, she could do activities with a 10-pound lifting limit, if shehad a sit/stand option." The Court of Appeals found that it could naL beadequately explained how those restrictions imposed upon the In,tured Workerwould be in accord with the Industrial Commission's definition of sedentarywork under Ohio Administrative Code Section 4121-3-34(B)(2)(a).

Thus, it is the finding of this Staff Hearing Officer that it is extremelyunlikelv that any employor in the work force would be willing to hire theIn,lured Worker in this claim, who must be rastricted to sitting a total ofless thao 2 hours in an 8 hour work day, with an ability to shift positionsfrom sitting to standing or walking at will, a need to take unscheduledbreaks every half'an hour, wtth a break lasting one half to one hour.Therefore, this Staff Hearieg Officer finds the opinion of the InjuredWorker's attending physician, Srini HeJeebu, M.D., to be persuasive. Dr... '` ., .He)eebu stated his professional medical opinion that his patient is epxcapable of sustained remunerative employment, on the Physical ImpairmentQuestionnaire dated 11/4/2002. Said opinion is found to be persuasive. iD EC 2 2 kUu,

In further support of his IC-2 Applicatlon for Compensation for PermanebtC.TOLEDOTotal Disability, filed 4/27/2004, the Injured Worker also submitted the '-"`'--32/12/2gg2 report from Beverly R. Damrauer, Ph.D., a clinical psychologist.Or. Daerauer found that "Mr. Ma,)erowski continues with a mixed mooddisturbance and interpersonal withdrawal. He has received MedicationManagement and Psychotherapy, without significant benefit. . ..He isdiscouraged; his defenses are low and his coping strategies are prettynon-existent. His singular interest tands to be, understandably,non-physical and people-avo(dant. The total psychologicil picture ishardly supportive of.sustained remunerative employment. When combined withhis other medical conditions, the picture is compelling that this man cannot work at sustained remunerative employment. Dr. Damrauer's opinion isalso found to be persuasive.

Furthermore, the non-medical factors of age, education, and work record

32

• Tnaostr4lcommksionofobio •


also support an award of Permanent Total Disability Compensation. Allmedical evidence in file indicates that the InJured Worker is unable toreturn to his former position of employment. Therefore, the determinationnust turn to whether or not the In,lured Worker can return to the job marketby using past employment skills or those skills which may be reasonablydeveloped.

The In,iured Worker was born on 4/29/1940 and is now 64 years old. Thus, itis the finding of this Staff Hearing Officer that the Injured Worker is OgSeligible to participate in Rehabilitation Services throu gh the Bureau ofWorkers' Compensation, as he exceeds their age-limit guidelines. It ts thefinding of this Staff Hearing Officer that the Injured Worker's age wouldbe detrimental in regard to his ability to be employed. His age affectsboth his functional capabilities and his ability to develope new academicor other skills required to perform entry-level sedentary eaploysnnt.Academic remediation or vocationally-orianted training would not be areasonable option based upon his age.

The Injured Worker only attended school through the eighth grade and quitschool to drive a truck. His limited education, with no subsequent G.E.B.,presents a fairly negative educationai profile regarding employability.His education would be inadequate for many sedentary clerical-typepositions and it would also affect his ability to develop acadenic or otherskills required to perform entry-level sedentary jobs.

The Injured Worker's prior work experience is limited to manual labor hisentire worklife. All medical reports in file indicate that he is unable toperform physically demanding work. It is the finding of this StaffHearingOfficer that the Injured Worker developed no transferable skills from anyof his previous positions of employment.

The above medical findings and vocational factors were considered by aCertified Rehabilitation Consultant, Joseph E. Havranek, Ed.D., C.R.C., whoissued a Vocational Assessment Report dated 11/5/2004. Dr. Havranek statedhis professional opinion that "The claimant has a limited education, a workhistory that is entirely medium in physical exertional level, and is 60years of age. Given the opinions of long time treating sources, as well asthe findings of the Independent Psychologist and the symptoms described byDr. Tosi, the claimant is incapable of any sustained remunerativeemployment, based solely on the allowed conditions in this claim, based onthe combined effects of the phgsical and psychological sequelae". Dr.Havranek then reiterated that the claimant is incapable of any sustainedremunerative employment, based solely on the allowed conditions in thisclaim The opinions are true to a reasonable degree of vocationalcertainty." This Staff Hearing Officer also finds the opinion of theaforesaid vocational expert, Certified Rehabilitation Consultant JosepH:^W JAiLHavranek, Ed.D., C.R.C., to persuasive.

Therefore, the Injured Worker is hereby awarded Permanent and Total iD EC 2 Y 2004Disability Compensation, pursuant to Ohio Revisad Code Section 4123.58(A),from 4/27/2002 through 12/6/2004 and continuing thereafter without C 70LaD,,suspension, unless future facts or circumstances warrant a change, purs0771t^---..=r,to Ohio Revised Code Section 4123.52. The starting date of Permanent TotalDisability Compensation is based upon the 11/4/2004 report from the InjuredWorker's attending physician, Srinl HeJeebu, H,D., which indicates at line12 of said report that the Injured Worker has been incapable of sustainedremunerative employment since the date of October, 1985. However,Permanent Total Disability Compensation may not begin prior to 4/27/2004,as Ohio Revised Code Section 4123.52 provides that the IndustrialConnission "shall not make any modlfication, change, finding, or awardwhich shall award compensation for a back period in excess of two yearsprior to the date of filing application therefore." Since the InjuredWorker's IC-2 Application for Compensation for Permanent and TotalDisability was filed on 4/27/2004, said award can not begin prior to4/27/2002.

Page 4 mr/mr

33

• LoWsial Commtsslon of Ohio •


It is further ordered that the above award be allocated as follows:100% of the award is to be paid under Claim Number 898905-22, as it was thecombined effects of the allowed physical and psychological conditions insaid claint that permanently removed the Injured Worker from the work force.

Typed By: mrDate Typed: 12/17/2004 ^Charies AndersonDate Received: 05/19/2004 Staff Hearing OfficerFindings Mailed:

The parties and representatives listed below have been sent this record ofproceedings. If you are not an authorized representative of either theinjured worker or eeployer,,please notify the Industrial Conwsission.

898905-22Rdnald J. Ma,ierowski12 South Lathrop RdSwanton OH 43558-9676

Risk No: 20002667-0Daimler Chrysler CorporationJeep EagleWorkers Compensation4400 Chrysler DriveToledo OH 43608

(PTDGRANT - PTD Grant - Rev. 2/02)

ID No: 17122-90Fiedler,Robert202 N Erie StToledo.OH 43624

ID No: 1694-80EsisPO Box 5061Southfield MI 48086

ID No: 1649-80Eastman & Smith LtdPO Box 10032Toledo ON 43699

ID No: 4000-05"•"BWC - DWRF Sectien"*'30 West Spring StreetLevel 10Coluebus OH 43266-058L

BWC, LAW DIRECTOR

Page 5 mr/mr

M pu^l lp{urtwltY 41ey4

.m vm,w vtovle.r 34

THE INDUSTRIAY.L JMI14I5SLON OF OHIi. RECORD OP PAOC'EnDINOS

N Q,tmt r+tWOM 89s9os22 Ref:Itanld 1. M*vowa{d12 SoUth latnp RoadSwanton, Ohio 43558-9676.leep Cospontlos

N looo Jap i9aAtwayTWedo, Oldo 43657

'$Pn^ga, Kotbn & McCrory4 North i:rie Streatcdo, Ohio 43624-1601

and SmithUniteJ Savings Bupding

'oledo, tHtio 43604-1141DA'lY 011POIAtYt 10/19/85 ^ n, ^ ^ ItDi t1UtpIDtt Sf 2667

> ut1 t ►flis 3808oN. N cIDODOôa rACr 4ro ORDmt or sas o0►oMoti

This cWm eatna on for tttaring before the Wusrrfal Commissiat on Me ehimant'a for Permsneot(D aad 7blat D1taiMtlty filed Deoarttba 12, 199f1. NotNxi were mailed to the dd . the employer,

respecdve reproamtatires and tAe Mministraror of the Bureau of worimn' Com not lw thae 14 dii hi Ff b ^ r\ pr .a to t a data. TAe N wing were praatt u tha headttg:

N ^^ ^ ^ • ^ Mr. Sull{van forMcCrory ^ ,?

FI 10>i11ffi ANAN1sAA7034 P1/e

\ ®taro sYt Cobnurd, McAghler, c?eltm, Mayfldd, Levitt

N lt ia lhe flndhtg of tlte Comm{aslan drt dds elaim bu been racopdzed for:at LS/Sl levd, dapraaion and amdety, aggrawtlon of ptrexiuing anhd8s from L3/4 to LS/SI.

I

It b the deolsiou of the Comndsden to bold eLlmant's motion in abeyance; chtims referred to Dr. 7Lrbn for^ aamitutlcrt, snd to Dr. Dilhltunt of Dr. Holbtook for a combined effeets review, on alt allowed oooditioes

oa Ihn quation of pamaneat toW disability; once reporta are on filo, claime retumed to the Comniis+iae forrevfew and otder wStftow frertlta lwring.

'f7+at Uto Comndsdott find from proof of teaord that Ihe claimant is not permanently and totally disabled; tltattherefore the appliadm be deded.

The reporp of Dn. Crod. Zupnit, MacdutAe, Hawkins, Pritscher, Hutchiaat, Turtdtt and Hoibrooh werereviewed and evaltuted. 716 order is based pat8atluty upon tbe reports of Drs. Hawkinf, Pdtfdter,Hutebison, 71MOtt and Holbrook, evidence in the Bk and the evidatoe adduced at tha hearing. ^/

1Ue ntodkalevIq^tce found penuasive mre the reports of Commisrlon speaialhta Dn. Hawldtuk Pr7tselfa,Hutchlaot^,'ILrtWand Hol6rooiC N. Hawlotu' orthopedio report indicate.w the olaintant's physical impairmentia tweoty peteeat. Ih. Pdtscber, a Commiulon psychologist, oplnea the claimant demonstrates a twenty totwatty'Hve peroatt 9aaqnent putial {mpaitmau of a psychiatric nature which would na be work prohlbitive.Dr. 'fltrrott, a Canmisdon psyehiaWU, ilmilarly finds a thLty percent noo-work lmpairiag psychiatrlodiaabitity. Dr. HttldJsott'a combined eftecu teview assfgna a forty percen ► overail impairntwt aud oplues thedaimant b abk b ralurn to work with remledotu against mttte stoophtg, bending and bavy INtleg. pr.Hulbroolt's oombhrod effeot tev{nw Bnds a fifty-eight penmt lxrmaneat partlal impairtnent md HtdSCaaea theolaimant b apbb of awne sedtattary employmmt. Thus, the medical evidenee indicaas the claimant has alow to nwdaals physkal and prycNatric impaimtrmt which does not tetder him medieally inapsbb of gainfulnmployroeM. The claimant ta 84y-two yan old, bu an eigbth grade educatioo, aad a wanlonsl hiatory aaa meW ntodel malmr. Whiie tha Commisfion recognizp the claimant's prior work expeiiptee has IYiled to °afford him transfernbk woric atlW, a'matldetWaa of thecldaunt's rehtlrely yaung ags wggaU tlte cWauM ofa a v1abL candkdhb gor:attoceatlW rotraWttg:.l9aoWmrr9low to modnate iatpairmatt auggab ehem area auwUbr otted[pr+n md IIWjoba for whidt tlta ckdtront h physimtly cqpable. Bottltermoae, the ctaimult's âp of fl8y-two yan of iè saggmts he hu tlr opporGmity, pdmiial, ud motivation lo be wcaaMy otraittM lor sonte sedantuy and light jobs, sucb a unsl911ed or semf-skifled ckriral woAt. '1ltaefore, anohvitbsWMing his pltaptt laok of skills and below averege edttcational level, the Commission determines ther-^gd^^claimant to ly quaBfled for wctasfnl vopdonal training for joba compatible with hls physioaln

giy, his applicadon for ptKtnaneot topl disability Is deniad.oa: CklmanUemployer/lAw Direswr, aWGActmtial, eWC/DWxP, BWC FINDINGS

Chiamu ttep(i):

Employer Wa)' FEB 2 2 1993Dab of Headag: Augutt 25, 19921ype0: y'm"rl'29,1993 MAILED71tis b

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r. Colawod secondd,^^% ,t ","r ter on as follows:. ^...LY..^..^. ,..

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s-3-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s ... (1986), 28 ohio st.3d 4, 5-6...

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