State ex rel. Moffitt v. Indus. Comm. , 2017 Ohio 7414 ( 2017 )

[Cite as State ex rel. Moffitt v. Indus. Comm., 2017-Ohio-7414.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Milton Moffitt, :
Relator, :
No. 16AP-396
v. :
(REGULAR CALENDAR)
Industrial Commission of Ohio and :
Enterprise Roofing & Sheet Metal Company,
:
Respondents.
:
D E C I S I O N
Rendered on August 31, 2017
On brief: Law Office of Stanley R. Jurus, and Robert B.
Bumgarner, for relator. Argued: Robert B. Bumgarner.
On brief: Michael DeWine, Attorney General, and
Amanda B. Brown, for respondent Industrial Commission of
Ohio. Argued: Amanda B. Brown.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BROWN, J.
{¶ 1} Relator, Milton Moffitt, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its October 22, 2015 order that grants the August 7, 2015
motion of the administrator of the Ohio Bureau of Workers Compensation ("bureau")
for the exercise of continuing jurisdiction over the July 14, 2015 order of its staff hearing
officer ("SHO") that awarded permanent total disability ("PTD") compensation to
relator, and to enter an order that denies the administrator's motion and reinstates the
July 14, 2015 order of the SHO awarding PTD compensation.
No. 16AP-396 2
{¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R.
53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, and recommended
that this court deny relator's writ of mandamus. Relator has filed two objections to that
decision, and we will address them together.
{¶ 3} Relator argues in his first objection that the magistrate erred when he
found that the SHO's misstatement suggests a conclusion that is inconsistent with PTD,
as it is instead simply one of numerous findings made by the SHO in her order. As part
of the factual findings in the SHO's order, the SHO stated that relator "continues" to
work up to 500 hours per year in his capacity as a roofer. Relator contends that this
information came from the December 5, 2013 office note of Dr. David Seymour; thus,
relator asserts, the SHO's finding should have said "[a]s of December 5, 2013," relator
"continued" to work 500 hours per year. (Relator's brief at 11.) The commission used
the SHO's finding to conclude that the SHO's award of PTD was not consistent with
PTD because relator was continuing to work 500 hours per year. Relator terms the
SHO's factual finding as a dictation error and an inadvertent and harmless
misstatement.
{¶ 4} Relator argues in his second objection that the magistrate erred when he
found that the commission did not abuse its discretion in exercising continuing
jurisdiction as the magistrate did not address the issue of whether the SHO's dictation
error was an inadvertent, harmless, and irrelevant misstatement that was not grounds
for continuing jurisdiction. Relator points to several decisions from this court in which
we have found that inadvertent, harmless, and irrelevant misstatements are not
grounds for continuing jurisdiction or a mandamus action.
{¶ 5} We disagree with relator's portrayal of the SHO's finding as a mere
dictation error or inadvertent and harmless statement. The magistrate here found that
the SHO's order "strongly suggests a conclusion that is inconsistent with permanent
total disability." (Mag. Decision at ¶ 51.) We cannot find the commission abused its
discretion in finding the SHO's statement that relator "continues" to work 500 hours
per year is inconsistent with a finding of PTD; thus, its exercising of continuing
jurisdiction was proper. Read strictly as written, the SHO's finding and the definition of
No. 16AP-396 3
PTD clearly conflict. There is simply no evidence in the order or record that this finding
was inadvertent or a mere clerical error. Furthermore, with regard to the cases cited by
relator that involved misstatements of fact by an SHO, those cases are inapposite to the
facts here. In those cases, the SHO's misstatements were either not independently
preclusive of PTD or irrelevant to the ultimate determination of PTD. To the contrary, in
the present case, a claimant who works 500 hours per year cannot be said to be
permanently and totally disabled by definition. For these reasons, we find relator's
arguments without merit and overrule his objections.
{¶ 6} Accordingly, after an examination of the magistrate's decision, an
independent review of the record, pursuant to Civ.R. 53, and due consideration of
relator's objections, we overrule the objections. We adopt the magistrate's findings of
facts and conclusions of law. Relator's request for a writ of mandamus is denied.
Objections overruled; writ of mandamus denied.
DORRIAN, J., concurs.
LUPER SCHUSTER, J., dissents.
___________________
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Milton Moffitt, :
Relator, :
v. : No. 16AP-396
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Enterprise Roofing & Sheet Metal Company, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on March 9, 2017
Law Office of Stanley R. Jurus, and Robert B. Bumgarner,
for relator.
Michael DeWine, Attorney General, and Amanda B. Brown,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 7} In this original action, relator, Milton Moffitt, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate its
October 22, 2015 order that grants the August 7, 2015 motion of the administrator of
the Ohio Bureau of Workers' Compensation ("bureau") for the exercise of continuing
jurisdiction over the July 14, 2015 order of its staff hearing officer ("SHO") that awarded
permanent total disability ("PTD") compensation to relator, and to enter an order that
denies the administrator's motion and reinstates the July 14, 2015 order of the SHO
awarding PTD compensation.
No. 16AP-396 5
Findings of Fact:
{¶ 8} 1. On May 27, 1997, relator injured his lower back while employed as a
roofer for respondent, Enterprise Roofing & Sheet Metal Company, a state-fund
employer. The injury occurred when relator endeavored to move a heavy pail of rubber.
{¶ 9} 2. The industrial claim (No. 97-422974) is allowed for "herniated nucleus
pulposus L2-3 with bulging disc at L4-S1 and L3-4 radiculopathy."
{¶ 10} 3. The record shows that, as early as December 18, 2012, relator was treated
for his lower back injury by orthopedist David S. Seymour, M.D. On that date, in an
office note, Dr. Seymour wrote:
Milton is doing relatively well. He works as a roofer, and the
techniques they use require warmer temperatures, so he has
been laid off. While this has occurred, his back pain has
improved significantly. He has had improvement in what
had been increasing exacerbation of left SI area, buttocks,
posterolateral thigh discomfort, nothing below the knee.
{¶ 11} 4. On August 22, 2013, relator again saw Dr. Seymour who, in an office
note, states:
Milton is doing relatively well. He continues to work out on a
regular basis and use his inversion table. He has been able
to, in a sense, retire from his roofing job but he still works up
to 500 hours. He has the option to work when he can and he
enjoys working. He is not having radiating discomfort.
{¶ 12} 5. On December 5, 2013, relator again saw Dr. Seymour who, in an office
note, states:
Milton continues to manage his lumbar degenerative disc
disease and back discomfort. He is retired but continues to
work at roofing jobs up to his 500 hour maximum. He has
been having some increased discomfort at night, particular
in the left hip but not radiating down into his leg. He can find
a position of comfort if he rolls about somewhat.
{¶ 13} 6. On March 25, 2014, relator again saw Dr. Seymour who, in his office
note, states:
He is having lower back discomfort radiating into his left
buttocks, thigh, and into the lower leg. It has been
progressively more severe and harder for him to work. His
walking distance has decreased.
No. 16AP-396 6
{¶ 14} 7. On May 27, 2014, relator again saw Dr. Seymour who, in an office note,
states:
Milton has had much more back pain then the usual
radiating into his left greater than right buttocks and lower
leg. His walking ability continues to decline. He has a feeling
of weakness in his legs and he had a great deal of difficulty
getting through the zoo [sic]. No change in bowel or bladder
function.
On physical examination, he continues to have excellent
strength and deep tendon reflexes. He has pain behavior
when standing, which he did not have previously. He
continues with a general flat affect.
RADIOLOGY REPORT Review of his MRI shows
multilevel degenerative disc disease, facet arthropathy, and
spinal stenosis. * * *
Impression: A 53-year-old male who has severe degenerative
spinal stenosis at multiple levels. Over the years, he has
worked as a roofer diligently despite poor architecture of his
spine. He no longer can continue the roofing or even
ambulate functionally.
{¶ 15} 8. Documents from the Social Security Administration indicate that relator
began receiving social security disability benefits beginning June 2014.
{¶ 16} 9. On January 20, 2015, at relator's request, he was examined by
orthopedic surgeon Richard M. Ward, M.D. In his two-page narrative report, Dr. Ward
opined:
Taking into account the allowances for the injury that
occurred as described on 5-27-1997 and my physical
findings, it is my opinion that Mr. Moffitt cannot return to
sustained remunerative employment. I base this opinion
upon the fact that there is no combination of sit, stand, walk
option that would add up to a normal eight hour work day
for him. He also has severe postural limitations, limitations
on his ability to lift and carry and he cannot use his legs to
operate foot controls. I did fill out a Physical Capacities
Evaluation to the best of my ability, again taking into
account the specific allowances for the injury that occurred
as described on 5-27-1997 and my physical findings. This
does indicate that Milton Moffitt, Jr, cannot return to
sustained remunerative employment. Unfortunately, I do
believe Mr. Moffitt has a permanent impairment and
No. 16AP-396 7
therefore, in my opinion, should be awarded permanent total
disability. This opinion is certainly based upon a reasonable
medical probability.
{¶ 17} 10. On February 18, 2015, relator filed an application for PTD
compensation. In support, relator submitted the January 20, 2015 report of Dr. Ward.
{¶ 18} 11. On April 15, 2015, at the commission's request, relator was examined by
Thomas E. Forte, D.O. In his six-page narrative report, Dr. Forte opines:
Mr. Moffitt has already undergone physical therapy,
injections, and the medication regimen has been optimized,
and he reports that there are no planned specialty
consultations and no planned surgical or invasive
procedures. Therefore, in this examiner's opinion, the
allowed physical conditions in the claim have stabilized to
the point that no major medical change can be expected,
despite any continuing medical treatment or rehabilitative
programs in which the injured worker may participate. Thus,
in this reviewer's opinion, the claimant has reached
maximum medical improvement for the current listed
allowed conditions in the claim.
***
The PHYSICAL STRENGTH RATING form is completed and
enclosed. There is limited capability for lifting, standing,
repetitive bending, leaning, and prolonged standing and
sitting, and these limitations are necessary [sic] due to the
allowed back conditions in the claims addressed in this
report, as the claimant has physical examination
documentation of restricted and painful lumbar motion.
(Emphasis sic.)
{¶ 19} 12. On April 15, 2015, Dr. Forte completed a "Physical Strength Rating"
form provided by the commission. On the form, Dr. Forte indicated by his mark that
relator is capable of "sedentary work."
{¶ 20} Under "FURTHER limitations, if indicated," and in the space provided, Dr.
Forte wrote: "The claimant reports difficulties with bending, lifting, leaning, prolonged
standing, prolonged sitting, and states he is not interested in sexual activity."
{¶ 21} 13. By letter dated June 3, 2015, the commission's Chief Medical Advisor
Robin G. Stanko, M.D., requested an addendum from Dr. Forte. The letter requested:
No. 16AP-396 8
Thank you for your report dated 4/15/15 regarding the above
Injured Worker. After review of your report, the Industrial
Commission has determined it is in need of additional
information.
Please specify the lifting capacity of the [Injured Worker] in
pounds and indicate how long the [Injured Worker] can sit
and stand in terms of hours.
{¶ 22} 14. On June 9, 2015, Dr. Forte issued his addendum, stating:
In this reviewer's opinion, as relates only to the allowed
physical conditions in the claim for which the claimant was
examined, the claimant's lifting capacity is 10 pounds on a
frequent basis, and he is able to sit for one hour increments
for 8 hours a day, and stand for 30 minutes at a time for a
total of 4 hours a day.
{¶ 23} 15. Earlier, on May 31, 2015, at relator's request, Vocational Consultant
Molly S. Williams reviewed the April 15, 2015 report of Dr. Forte. Adopting Dr. Forte's
report, Williams opined:
I have reviewed and formally adopt the factual findings as
previously stated above. However, when all of the disability
factors are correctly identified, stated, and considered: an
individual unable to perform his customary past relevant
work as a Roofer, both as he performed it and as it is
normally performed within the national economy; an
individual whose currently closely approaching advanced age
(age fifty to fifty-four); an individual becoming of advanced
age (age fifty-five or over) within the next eleven days; an
individual with no transferable skill(s); and an individual not
expected to make a vocational adjustment to other work
based upon his allowed condition, as assessed by The
Industrial Commission's Specialist, Thomas E. Forte, D.O., it
is obvious the claimant is permanently and totally disabled.
{¶ 24} 16. On July 14, 2015, the PTD application was heard by an SHO. Relator
appeared with his counsel. No one appeared for the employer. Staff counsel appeared
on behalf of the administrator.
{¶ 25} 17. Following the July 14, 2015 hearing, the SHO mailed an order on
July 25, 2015 that grants the PTD application. The SHO's order explains:
Permanent total disability compensation is awarded from
01/20/2015 based upon the medical report submitted by the
Injured Worker from Richard M. Ward, M.D., dated
No. 16AP-396 9
01/20/2015, who opines the Injured Worker, as a result of
the allowed physical conditions in this claim of sprain
lumbar region, herniated nucleus pulposus at L2-3 with
bulging disc at L4-S1 and L3-4 radiculopathy, to be incapable
of returning to any form of gainful employment.
***
Staff Hearing Officer finds that the Injured Worker has
submitted the medical report of Dr. Ward in support of the
permanent total disability application. Dr. Ward has opined
the allowed physical conditions to be permanent having
reached maximum medical improvement and [states] as a
result of those conditions the Injured Worker is incapable to
returning to any for[m] of gainful employment. Dr. Ward
states that there is no combination of sit, stand, walk option
that would add up to the Injured Worker being capable of a
normal eight hour work day. He states that the Injured
Worker has severe postural limitations, limitations on his
ability to lift and carry and states that he can not use his legs
to operate foot controls. Dr. Ward further states the Injured
Worker continues to have severe low back pain that radiates
into his left low extremity with involuntary muscle spasm
and marked loss of lumbar spine motion.
The Staff Hearing Officer finds that the Injured Worker was
examined at the request of the Industrial Commission by
Thomas E. Forte, D.O., M.S., on 04/15/2015, regarding the
allowed physical conditions in this claim. Dr. Forte states
that the Injured Worker's allowed physical conditions are
permanent having reached maximum medical improvement
and states that as a result of those conditions the Injured
Worker is capable of performing sedentary employment.
Dr. Forte states that the Injured Worker has limited
capability for lifting, standing, repetitive bending, leaning
and prolonged standing and sitting based upon the Injured
Worker's physical examination documenting restricted and
painful lumbar motion. Dr. Forte has completed a physical
strength rating form opining the Injured Worker to be
capable of sedentary work which mean[s] exerting up to ten
pounds of force occasionally (occasionally: activity or
condition exists up to one third of the time) and/or a
negligible amount of force frequently (frequently: activity or
condition exists from one third to two thirds of the time) to
lift, carry, push, pull or otherwise move objects. Sedentary
work involved [sic] sitting most of the time, but may involve
walking or standing for brief periods of time. Jobs are
No. 16AP-396 10
sedentary if walking and standing are required only
occasionally and all other sedentary criteria are met.
Staff Hearing Officer finds that the Injured Worker's allowed
physical conditions are permanent having reached maximum
medical improvement. Staff Hearing [Officer] further finds
that the Injured Worker is 55 years old with a 12th grade
education and a 30 year work history as a residential and
commercial construction roofer. Staff Hearing Officer finds
that the Injured Worker is retired through his union and
received Social Security Disability beginning July of 2014.
Staff Hearing Officer further finds that the Injured Worker
has not been involved in any vocational rehabilitation and
continues to work up to 500 hours per year in his capacity as
a roofer.
The Staff Hearing Officer finds that the Injured Worker has
submitted the vocational report by vocational consultant
Molly S. Williams. Staff Hearing Officer finds that
Ms. Williams has stated that the Injured Worker is closely
approaching advanced age, possesses a high school
education and has the limited ability to read, write, and
perform basic math skills. She states that the Injured
Worker's job duties as a construction roofer is considered to
be skilled work. She also states that * * * the Injured
Worker's work history is considered to be skilled, but, is a
lesser degree of skill and people in those positions are not
expected to do more complex jobs than they have actually
performed. She states that the Injured Worker has no
transferable skills and that she is unable to identify jobs to
which the Injured Worker's skills as a roofer would allow
him to work in a sedentary position. She states that
considering the Injured Worker's age, work history and
limited education that he cannot return to his former
position of employment and that he is to be considered
[incapable] of returning to [any] form of gainful
employment.
It is the finding and order of the Staff Hearing Officer that
the Injured Worker, as a result of both the physical and
vocational factors opined by Dr. Ward and vocational
consultant Molly S. Williams is incapable to returning to
[any] form of sustained remunerative employment. It is
therefore the finding and order of the Staff Hearing Officer
that the Injured Worker's permanent total disability
application filed 02/18/2015, is granted.
No. 16AP-396 11
This order is based upon the vocational review by Molly S.
Williams dated 05/31/2015 and the medical report of
Dr. Ward, dated 01/20/2015.
{¶ 26} 18. On August 7, 2015, the administrator moved the three-member
commission for reconsideration of the SHO's order of July 14, 2015 that was mailed
July 25, 2015.
{¶ 27} 19. By letter dated August 11, 2015, relator's counsel opposed the request
for reconsideration.
{¶ 28} 20. On August 29, 2015, the three-member commission mailed an
interlocutory order, stating:
It is the finding of the Industrial Commission the
Administrator has presented evidence of sufficient probative
value to warrant adjudication of the Request for
Reconsideration regarding the alleged presence of a clear
mistake of fact in the order from which reconsideration is
sought, and a clear mistake of law of such character that
remedial action would clearly follow.
Specifically, it is alleged the Staff Hearing Officer erred in
finding the Injured Worker continues to work, but retired
and began receiving Social Security Disability benefits in
July 2014. It is further alleged the Staff Hearing Officer erred
in not considering the Injured Worker's lack of attempts at
vocational rehabilitation. It is finally alleged the Staff
Hearing Officer erred in relying on the vocational report of
Molly Williams when she did not provide an opinion on the
Injured Worker's ability to be re-trained.
The order issued is vacated, set aside, and held for naught.
Based on these findings, the Industrial Commission directs
the Administrator's Request for Reconsideration, filed
08/07/2015, be set for hearing to determine whether the
alleged clear mistakes of fact and law as noted herein are
sufficient for the Industrial Commission to invoke its
continuing jurisdiction.
In the interest of administrative economy and for the
convenience of the parties, after the hearing on the question
of continuing jurisdiction, the Industrial Commission will
take the matter under advisement and proceed to hear the
merits of the underlying issue(s). The Industrial Commission
will thereafter issue an order on the matter of continuing
No. 16AP-396 12
jurisdiction under R.C. 4123.52. If authority to invoke
continuing jurisdiction is found, the Industrial Commission
will address the merits of the underlying issue(s).
{¶ 29} 21. On October 22, 2015, the matter was heard by the three-member
commission. The hearing was recorded and transcribed for the record.
{¶ 30} 22. Following the October 22, 2015 hearing, the commission mailed an
order on December 16, 2015 that exercised continuing jurisdiction over the SHO's order
of July 14, 2015 that had awarded PTD compensation. The commission vacated the
SHO's order awarding PTD compensation and proceeded to the merits of the PTD
application.
{¶ 31} On the merits, the commission finds that the allowed conditions do not
render relator permanently and totally disabled. In the alternative, the commission
finds that PTD compensation is precluded by a voluntary abandonment of the
workforce.
{¶ 32} It should be noted here that relator only challenges the commission's
exercise of continuing jurisdiction over the SHO's order awarding PTD compensation.
That is, relator does not challenge the commission's determination that the industrial
injury does not render him permanently and totally disabled. Also, relator does not
challenge the commission's determination that he voluntarily abandoned the workforce.
{¶ 33} Regarding the exercise of continuing jurisdiction, the commission's order
explains:
[I]t is the decision of the Industrial Commission the
Administrator has met his burden of proving the Staff
Hearing Officer order, issued 07/25/2015, contains clear
mistakes of law of such character that remedial action would
clearly follow. Specifically, the Staff Hearing Officer
mistakenly awarded permanent total disability
compensation when she also found the Injured Worker
continued to work. Additionally, the Staff Hearing Officer
failed to analyze the Injured Worker's vocational factors,
instead reciting the findings made by Vocational Evaluator
Molly Williams, without adopting those findings as her own.
Therefore, the Industrial Commission exercises continuing
jurisdiction pursuant to R.C. 4123.52 * * * in order to correct
these errors.
{¶ 34} 23. On May 24, 2016, relator, Milton Moffitt, filed this mandamus action.
No. 16AP-396 13
Conclusions of Law:
{¶ 35} The issue is whether the commission abused its discretion in determining
that the SHO's order of July 14, 2015 contains a clear mistake of law in awarding PTD
compensation while stating "the Injured Worker * * * continues to work up to 500 hours
per year in his capacity as a roofer."
{¶ 36} Finding that the July 14, 2015 order of the SHO presents a clear mistake of
law as correctly identified by the commission in its October 22, 2015 order, it is the
magistrate's decision that this court deny relator's request for a writ of mandamus, as
more fully explained below.
Pertinent Administrative Rules
{¶ 37} Ohio Adm.Code 4121-3-34 provides the commission's rules for the
adjudication of PTD applications. Ohio Adm.Code 4121-3-34(D) provides guidelines of
adjudication of PTD applications.
{¶ 38} Ohio Adm.Code 4121-3-34(D)(1) provides:
(b) If, after hearing, the adjudicator finds that the injured
worker is engaged in sustained remunerative employment,
the injured worker's application for permanent and total
disability shall be denied.
{¶ 39} Ohio Adm.Code 4121-3-34(D)(2) provides:
(a) If, after hearing, the adjudicator finds that the medical
impairment resulting from the allowed condition(s) in the
claim(s) prohibits the injured worker's return to the former
position of employment as well as prohibits the injured
worker from performing any sustained remunerative
employment, the injured worker shall be found to be
permanently and totally disabled, without reference to the
vocational factors listed in paragraph (B)(3) of this rule.
(b) If, after hearing, the adjudicator finds that the injured
worker, based on the medical impairment resulting from the
allowed conditions is unable to return to the former position
of employment but may be able to engage in sustained
remunerative employment, the non-medical factors shall be
considered by the adjudicator.
The non-medical factors that are to be reviewed are the
injured worker's age, education, work record, and all other
factors, such as physical, psychological, and sociological, that
No. 16AP-396 14
are contained within the record that might be important to
the determination as to whether the injured worker may
return to the job market by using past employment skills or
those skills which may be reasonably developed. (Vocational
factors are defined in paragraph (B) of this rule).
(c) If, after hearing and review of relevant vocational
evidence and non-medical disability factors, as described in
paragraph (D)(2)(b) of this rule the adjudicator finds that
the injured worker can return to sustained remunerative
employment by using past employment skills or those skills
which may be reasonably developed through retraining or
through rehabilitation, the injured worker shall be found not
to be permanently and totally disabled.
Permanent Total Disability: Basic Law
{¶ 40} PTD is defined as the inability to perform sustained remunerative
employment. State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987).
{¶ 41} In State ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-
6086, the Supreme Court of Ohio set forth three separate criteria for the termination of
PTD compensation based on prior case law. Payment of PTD compensation is
inappropriate where there is evidence of (1) actual sustained remunerative employment
(State ex rel. Kirby v. Indus. Comm., 97 Ohio St.3d 427, 2002-Ohio-6668); (2) the
physical ability to do sustained remunerative employment (State ex. rel. Schultz v. Indus.
Comm., 96 Ohio St.3d 27, 2002-Ohio-3316); or (3) activities so medically inconsistent
with the disability that they impeach the medical evidence underlying the award. See
State ex rel. Timmerman Truss, Inc. v. Indus. Comm., 102 Ohio St.3d 244, 2004-Ohio-
2589; Lawson at ¶ 16.
Temporary Total Disability: Basic Law
{¶ 42} It may be helpful to compare permanent total disability with temporary
total disability ("TTD").
{¶ 43} TTD is the inability to return to the former position of employment. State
ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982). TTD compensation is
prohibited to one who has returned to work. R.C. 4123.56(A).
{¶ 44} Activities medically inconsistent with the inability to return to the former
position of employment bar TTD compensation regardless of whether the claimant is
paid. State ex rel. Ford Motor Co. v. Indus. Comm., 98 Ohio St.3d 20, 2002-Ohio-7038, ¶
No. 16AP-396 15
23, citing State ex rel. Parma Community Gen. Hosp. v. Jankowski, 95 Ohio St.3d 340,
2002-Ohio-2336. Activities that are not medically inconsistent, however, bar TTD
compensation only when a claimant is remunerated for them. Id. Moreover, even
sporadic employment can bar TTD compensation. Ford at ¶ 23, citing State ex rel.
Blabac v. Indus. Comm., 87 Ohio St.3d 113 (1999).
{¶ 45} Activities that are not minimal and that directly generate income for a
separate entity may be considered work and may disqualify a claimant from receiving
TTD compensation even when the claimant is not paid. State ex rel. McBee v. Indus.
Comm., 132 Ohio St.3d 209, 2012-Ohio-2678, ¶ 7. (Claimant helped his wife with her
business, but he was not paid for his services.)
Continuing Jurisdiction
{¶ 46} Continuing jurisdiction is not unlimited. Its prerequisites are (1) new and
changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5)
error by an inferior tribunal. State ex rel. Royal v. Indus. Comm., 95 Ohio St.3d 97(2002).
{¶ 47} The presence of one of these prerequisites must be clearly articulated in any
commission order seeking to exercise reconsideration jurisdiction, i.e., continuing
jurisdiction. State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990,
¶ 15. This means that the prerequisite must be both identified and explained. Id.Analysis
{¶ 48} In its interlocutory order mailed August 29, 2015, the commission identifies
three potential mistakes of law. At issue here is the following identification of a potential
mistake of law:
Specifically, it is alleged the Staff Hearing Officer erred in
finding the Injured Worker continues to work, but retired
and began receiving Social Security Disability benefits in
July 2014.
{¶ 49} In its order of October 22, 2015, the commission specifically identified the
clear mistake of law previously identified in the interlocutory order:
Specifically, the Staff Hearing Officer mistakenly awarded
permanent total disability compensation when she also
found the Injured Worker continued to work.
No. 16AP-396 16
{¶ 50} When the SHO states in her order of July 14, 2015 that "the Injured Worker
* * * continues to work up to 500 hours per year in his capacity as a roofer," it is strongly
suggested that relator is actually performing sustained remunerative employment or has
the physical ability to perform sustained remunerative employment. Lawson at ¶ 16.
This observation is made by the magistrate without reference to Dr. Seymour's office visit
notes contained in the record but not identified in the SHO's order of July 14, 2015.
{¶ 51} Thus, on its face, the SHO's order of July 14, 2015 strongly suggests a
conclusion that is inconsistent with permanent total disability. Given this analysis, it is
clear that the SHO's order of July 14, 2015 contains a clear mistake of law on which the
commission correctly exercised its continuing jurisdiction.
{¶ 52} According to relator, the statement in the SHO's order of July 14, 2015 that
"the Injured Worker * * * continues to work up to 500 hours per year in his capacity as a
roofer" is premised on Dr. Seymour's December 5, 2013 office note which states: "He is
retired but continues to work at roofing jobs up to his 500 hour maximum."
{¶ 53} It can be observed that the December 5, 2013 office visit occurred over a
year prior to the February 18, 2015 filing of relator's PTD application. Thus, in actuality,
the December 5, 2013 office note is not necessarily inconsistent with relator's claim that
he was permanently and totally disabled as of his January 20, 2015 examination by
Dr. Ward.
{¶ 54} Here, relator argues that the SHO's order of July 14, 2015 should instead
state "the injured worker continued to work up to 500 hours per year in his capacity as a
roofer as of December 5, 2013." (Relator's Brief at 11.) Clearly, relator cannot rewrite the
SHO's order of July 14, 2015 in order to remove the clear mistake of law.
{¶ 55} Based on the foregoing analysis, the magistrate concludes that the
commission did not abuse its discretion in determining that the SHO's order of July 14,
2015 contains a clear mistake of law.
{¶ 56} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
No. 16AP-396 17
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).