State ex rel. Honda of Am., Mfg., Inc. v. Indus. Comm. ( 2017 )

[Cite as State ex rel. Honda of Am., Mfg., Inc. v. Indus. Comm., 2017-Ohio-8972.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Honda of America, Mfg., Inc., :
Relator, :
v. : No. 16AP-19
Industrial Commission of Ohio, : (REGULAR CALENDAR)
and
Clifford A. Ball, :
Respondents. :
DECISION
Rendered on December 12, 2017
On brief: Vorys, Sater, Seymour and Pease LLP, and Carl D.
Smallwood, for relator.
On brief: Michael DeWine, Attorney General, and
Amanda B. Brown, for respondent Industrial Commission of
Ohio.
On brief: Agee, Clymer, Mitchell & Portman, and
Robert M. Robinson, for respondent Clifford A. Ball.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BRUNNER, J.
{¶ 1} Relator, Honda of America, Mfg., Inc. ("Honda"), has filed this original
action for a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the
commission"), to vacate the October 10, 2015 order of its staff hearing officer ("SHO")
awarding permanent total disability ("PTD") compensation under Ohio's workers'
compensation laws to respondent, Clifford A. Ball, and to enter an order either denying
Ball's PTD application or remanding Ball's PTD application to the commission for a new
hearing and a decision that corrects certain deficiencies.
No. 16AP-19 2
{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate. The magistrate issued the appended
decision, including findings of fact and conclusions of law. The magistrate found that the
commission's decision to award PTD benefits to Ball was not supported by some evidence
in the record because it was based on a medical opinion that was internally inconsistent.
The medical doctor's five-page narrative indicated the claimant was "permanently and
totally disabled from performing sustained remunerative employment" but on the
Physical Capacity Evaluation ("PCE") form the doctor indicated a physical capacity
retention for part-time work of four to five hours per day. (Mar. 16, 2016 Stipulation of
Evidence at 12.) The magistrate recommends for this reason that this Court grant a writ
of mandamus remanding this matter back to the commission. Ball filed objections to the
magistrate's decision. Honda and the commission opposed Ball's objections. The
commission agrees that a limited writ should issue for the purpose of "remanding the
matter back to the commission, as the trier of fact, to adjudicate Ball's PTD application in
a manner consistent with the magistrate's decision." (Mar. 9, 2017 Commission's Memo.
In Opp. Objs. To Mag.'s Decision at 2.)
{¶ 3} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of Ball's objections, we overrule
his objections and adopt the magistrate's findings of fact and conclusions of law as our
own. We thus grant a limited writ of mandamus, remanding the matter back to the
commission to adjudicate Ball's PTD application in a manner consistent with the
magistrate's decision which we adopt as our own.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 4} It is undisputed that Ball incurred an injury on August 27, 2001 arising out
of his employment with Honda, a self-insured employer. Ball's industrial claim was
allowed. In 2010, Ball filed an application for PTD compensation ("2010 PTD
application"), which the commission granted. Honda challenged that award by filing a
mandamus action with this Court, which issued the requested writ ordering the
commission to enter a new order adjudicating that application. On July 13, 2012, the
commission denied Ball's 2010 PTD application.
{¶ 5} The record before us indicates that Ball underwent a Functional Capacity
Evaluation ("FCE") at FCE Services, LLC on November 20, 2014. The evaluator
No. 16AP-19 3
concluded that Ball demonstrated the ability to perform, at a minimum, work between
light and medium physical demand category, with appropriate opportunities throughout
the work day to make positional adjustments.
{¶ 6} The record further indicates that, on November 26, 2014, Ball's treating
physician at that time, Stephen Altic, D.O., completed a Physician's Report of Work
Ability ("Medco-14"), on which he indicated that Ball was not released to his former
position of employment but could return to "available and appropriate work with
restrictions." (Stipulation of Evidence at 184.) Dr. Altic indicated that Ball potentially
could work 8 hours a day, 40 hours a week.
{¶ 7} On December 18, 2014, Ball was examined at his own request by Nancy
Renneker, M.D., and a non-treating independent examiner. The same day she examined
Ball, Dr. Renneker prepared a report in which she opined that Ball was permanently and
totally disabled from performing sustained remunerative employment as a result of his
industrial injury. She also completed that day a PCE form on which she indicated that
Ball was capable of the following physical actions: (1) stand for two hours, walk for one
hour, and sit for two hours, (2) stand one-half hour without interruption, walk one-sixth
hour without interruption, and sit one-half hour without interruption, (3) lift five pounds
occasionally, (4) use his hands for repetitive simple grasping and fine manipulation, but
not pushing and pulling, (5) use his right foot for repetitive movements as in operating
foot controls, but not his left foot, (6) "partially bend" "[o]ccasionally" but not squat,
crawl, climb stairs, and climb ladders at all, and (7) reach above the shoulder level.
(Stipulation of Evidence at 75-76.)
{¶ 8} On January 23, 2015, Ball filed a PTD application. In support, he submitted
Dr. Renneker's reports of December 18, 2014.
{¶ 9} In March, April, and July 2016, Ball was examined separately by two
physicians and one vocational expert, all of whom opined that Ball was capable of
employment with appropriate restrictions and limitations.
{¶ 10} An SHO heard Ball's PTD application on September 24, 2015. On October
10, 2015, the SHO mailed an order awarding Ball PTD compensation commencing
December 18, 2014, "based only on the report of Dr. Renneker because it is found that
hers was the most complete and reasonable exam on file." (Stipulation of Evidence at 48.)
No. 16AP-19 4
On December 5, 2015, the three-member commission mailed an order denying Honda's
motion for reconsideration of the SHO's order.
{¶ 11} On January 11, 2016, Honda filed this mandamus action alleging four
grounds on which the commission abused its discretion in awarding PTD compensation
to Ball. Honda argued that there is no competent medical evidence in the record to
support the commission's conclusion that Ball "is unable to perform any sustained
remunerative employment solely as a result of the medical impairment caused by the
allowed condition(s)." (Jan. 11, 2016 Compl. at ¶ 29.) Second, Honda argued, that the
commission relied solely upon Dr. Renneker's report, "which report violated the
requirements of the Commission's rules and Medical Examination Manual, was internally
inconsistent and, therefore, was defective as a matter of law." Id. at ¶ 30. Third, Honda
argued that the commission had failed to conduct an analysis of the non-medical
"Stephenson" factors, where the medical evidence uniformly demonstrated that Ball was
capable of sustained remunerative employment." Id. at ¶ 31. Fourth and finally, Honda
argued that the commission awarded PTD compensation despite the undisputed medical
evidence that Ball was capable of vocational rehabilitation and the undisputed fact that
Ball had failed to participate in the vocational training Honda offered.
{¶ 12} On April 19, 2016, the commission filed its brief, requesting that this Court
issue a limited writ remanding this matter back to the commission. The commission in its
brief explained why it agreed mandamus was appropriate, at least to a limited extent:
The commission order at issue relies on the report of
Dr. Renneker in granting PTD benefits, but Dr. Renneker's
report does not indicate that the doctor reviewed any of Ball's
existing medical records in the fifteen months prior to the
application, as required by law. Accordingly, the commission
concedes that a limited writ is necessary and appropriate in
this matter to allow the commission to properly adjudicate
this issue.
(Apr. 19, 2016 Commission's Brief at 1.)
{¶ 13} The magistrate's decision centered on the issue of whether Dr. Renneker's
report, on which the SHO stated exclusive reliance, provided some evidence to support
the commission's PTD award. The magistrate concluded and the commission conceded
that Dr. Renneker's report was internally inconsistent, as one section of the report
No. 16AP-19 5
indicated that Ball is permanently and totally disabled from performing any sustained
remunerative employment, and a form submitted with the report indicated that Ball
retains the physical capacity for part-time work of four to five hours a day. The magistrate
thus determined that Dr. Renneker's report does not constitute some evidence on which
the commission could have relied in support of its PTD award. The magistrate
recommends that this Court issue a limited writ of mandamus "ordering the commission
to vacate its SHO's order of September 24, 2015 awarding PTD compensation, and, in a
manner consistent with this magistrate's decision, enter a new order that adjudicates the
PTD application." (App'x at ¶ 73.) Relator, Honda, prays in its complaint for "a writ of
mandamus voiding and vacating the October 10, 2015 order awarding permanent total
disability compensation" to Ball, "and either ordering the Commission to enter a new
order denying Ball's 2015 PTD application or remanding Ball's 2015 PTD application to
the Commission for a new hearing and a decision which corrects the deficiencies
described herein. (Compl. at 14-15.)
II. OBJECTIONS TO MAGISTRATE'S DECISION
{¶ 14} Ball's filing does not enumerate specific objections, although it contains a
single bulleted heading that states, "Dr. Renneker's report is not so internally inconsistent
that it does not constitute 'some evidence.' " (Feb. 9, 2017 Ball's Objs. to Mag.'s Decision
at 2.) Ball objects generally to the magistrate's findings of facts and conclusions of law
regarding Dr. Renneker's report. Ball asserts that the magistrate erred in concluding "that
a partial review of a pre-printed 'check the box' form should take precedence over a
thorough evaluation that concluded [Ball] was permanently and totally disabled from all
forms of remunerative employment." Id. at 4.
{¶ 15} Ball contends the magistrate accepted "Honda's invitation to substitute this
Honorable Court's judgment over that of the [commission]," arguing that the commission
had accepted Dr. Renneker's findings and had awarded him PTD benefits based on
Dr. Renneker's report. Id. Ball submits the following argument in support of his
contention:
The [commission] is the body in the state of Ohio that is
charged with determining whether or not a claimant is
permanently and totally disabled. Understandably, the
employer does not like the result, however, no legal
justification exists for this Court substituting its judgment
No. 16AP-19 6
over that of the [commission]. Some evidence exists to
support the contention that [Ball] is permanently and totally
disabled and, therefore, the Order from the [commission]
should stand.
Id. at 4-5.
III. LAW AND DISCUSSION
{¶ 16} To be entitled to relief in mandamus, Honda must establish that it has a
clear legal right to relief, and that the commission has a clear legal duty to provide such
relief. State ex rel. Pressley v. Indus. Comm., 11 Ohio St. 2d 141 (1967), paragraph nine of
the syllabus. To do so, Honda must demonstrate that the commission abused its
discretion and, "in this context, abuse of discretion has been repeatedly defined as a
showing that the commission's decision was rendered without some evidence to support
it." State ex rel. Burley v. Coil Packaging, Inc., 31 Ohio St. 3d 18, 20 (1987). Where the
record contains some evidence to support the commission's findings, there has been no
abuse of discretion, and mandamus is not appropriate. State ex rel. Lewis v. Diamond
Foundry Co., 29 Ohio St. 3d 56 (1987). To prove its entitlement to a writ of mandamus,
Honda must show that the commission's decision is not supported by some evidence in
the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St. 3d 76 (1986). But questions
of credibility and the weight to be given evidence are clearly within the discretion of the
commission as the factfinder. State ex rel. Teece v. Indus. Comm., 68 Ohio St. 2d 165
(1981).
{¶ 17} The magistrate's decision includes a comprehensive discussion of the
statutory and case law on the standard for determining what part-time employment may
be viewed as sustained remunerative employment. The magistrate correctly stated that
case law establishes that a work capacity of "four or more hours per day" constitutes
sustained remunerative employment. State ex rel. Toth v. Indus. Comm., 80 Ohio St. 3d
360 (1997); State ex rel. Sheller-Chiles v. Indus. Comm., 10th Dist. No. 13AP-245, 2014-
Ohio-313, ¶ 5.
{¶ 18} The magistrate observed that the portion of Dr. Renneker's report
constituting a narrative disability opinion indicates Ball is unable to perform sustained
remunerative employment, but this is inconsistent with the PCE form she completed as
part of her report:
No. 16AP-19 7
Both documents relate to the same medical examination
performed on December 18, 2014 yet two very different
opinions of [Ball's] disability emerge. While the "Physical
Capacity Evaluation" indicates that [Ball] can perform part-
time "in a work situation," the narrative report indicates that
[Ball] cannot perform sustained remunerative employment.
(App'x at ¶ 67.)
{¶ 19} The magistrate's decision contains a thorough and accurate review of the
case law establishing that a doctor's report can be so internally inconsistent that it cannot
be some evidence on which the commission can rely. State ex rel. Taylor v. Indus.
Comm., 71 Ohio St. 3d 582 (1995); State ex rel. Lopez v. Indus. Comm., 69 Ohio St. 3d 445
(1994). In his decision, the magistrate discusses the Supreme Court of Ohio's holding in
State ex rel. M. Weingold & Co. v. Indus. Comm., 97 Ohio St. 3d 44, 2002-Ohio-5353, in
which substantial inconsistencies between two C-84s generated by the same examination
do not constitute some evidence on which the commission may rely. Additionally, this
Court has applied Weingold to eliminate from evidentiary consideration a physician's C-
84 that was inconsistent with the physician's examination notes. State ex rel. Genuine
Parts Co. v. Indus. Comm., 160 Ohio App. 3d 99, 2005-Ohio-1447 (10th Dist.).
Accordingly, the magistrate based his legal conclusions on such case law and found that
Dr. Renneker's report does not provide the commission with some evidence to support
the PTD award.
{¶ 20} As noted, the commission concedes consistent with the magistrate's
decision that its order was issued contrary to law, not constituting the necessary "some
evidence" to avoid an abuse of discretion. And the commission acknowledges that
Dr. Renneker did not consider in her report any of Ball's medical treatment or testing in
the 15 months before her independent medical examination of him, and thus the
commission's decision to award PTD is not supported with medical evidence as required
by Ohio Adm.Code 4121-3-34(D)(3)(d). The commission submits that Ball, through his
objections, is asking this Court to act as the trier of fact and reweigh the evidence,
contrary to the holdings of Teece and State ex rel. Honda of Am. Mfg., Inc. v. Indus.
Comm., 10th Dist. No. 14AP-82, 2014-Ohio-5245, ¶ 10. The commission encourages this
Court to overrule Ball's objections and to grant a limited writ of mandamus, remanding
No. 16AP-19 8
the matter back to the commission, as the trier of fact, to adjudicate Ball's PTD
application in a manner consistent with the magistrate's decision.
{¶ 21} Ball, in both his brief and his objections to the magistrate's decision, does
not address the commission's concession that its order awarding him PTD compensation
was granted contrary to law.
{¶ 22} We agree with the magistrate's decision. The inconsistencies between the
narrative report and the PCE form which Dr. Renneker prepared on December 18, 2014
following her examination of Ball, cannot be reconciled. Consequently, we find that
Dr. Renneker's report, specified by the SHO to be the only evidence upon which the PTD
eligibility determination is based, does not constitute some evidence to support the
commission's decision that Ball could not participate in sustained remunerative
employment and is permanently and totally disabled.
IV. CONCLUSION
{¶ 23} Having reviewed the magistrate's decision, conducted an independent
review of the record, and given due consideration to Ball's objections, we hold that the
magistrate has appropriately made its findings of fact and conclusions of law in finding
that Honda is entitled to relief in mandamus. Therefore, we overrule Ball's objections to
the magistrate's decision and adopt the decision as our own, including the findings of
facts and conclusions of law therein. We grant a limited writ of mandamus, ordering the
commission to vacate its decision of December 9, 2015 denying reconsideration of the
SHO's order of September 24, 2015, awarding PTD compensation, and in a manner
consistent with this decision, hold a new hearing and thereafter enter a new order that
adjudicates Ball's PTD application having corrected the deficiencies described herein.
Objections overruled;
writ of mandamus granted.
BROWN and KLATT, JJ., concur.
No. 16AP-19 9
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Honda of America, Mfg., Inc., :
Relator, :
v. : No. 16AP-19
Industrial Commission of Ohio, : (REGULAR CALENDAR)
and
Clifford A. Ball, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on January 26, 2017
Vorys, Sater, Seymour and Pease LLP, and Carl D.
Smallwood, for relator.
Michael DeWine, Attorney General, and Amanda B. Brown,
for respondent Industrial Commission of Ohio.
Agee, Clymer, Mitchell & Portman, and Robert M.
Robinson, for respondent Clifford A. Ball.
IN MANDAMUS
{¶ 24} In this original action, relator, Honda of America, Mfg., Inc. ("Honda" or
"relator"), requests a writ of mandamus ordering respondent Industrial Commission of
Ohio ("commission") to vacate the September 24, 2015 order of its staff hearing officer
("SHO") that awards permanent total disability ("PTD") compensation to respondent Clifford
A. Ball ("claimant"), and to enter an order denying the compensation.
No. 16AP-19 10
Findings of Fact:
{¶ 25} 1. On August 27, 2001, claimant injured his lower back while employed as
an "Assembly Worker" for relator, a self-insured employer under Ohio's workers'
compensation laws.
{¶ 26} 2. The industrial claim (No. 01-854453) is allowed for: "lumbosacral
sprain/strain; sciatic neuritis; herniated nucleus pulposus L3-4 & L4-5; aggravation of
pre-existing lumbar degenerative joint disease; lumbar stenosis at L4-5."
{¶ 27} 3. Claimant has undergone four surgeries. In December 2001, claimant
underwent a lumbar laminectomy. In April 2009, claimant underwent a second surgery
described as:
L4 completion laminectomy, L4-L5 bilateral facetectomy, L5
laminectomy, pedicle screw fixation L4-5, transverse process
fusion L4-5, interbody fusion L4-5, interbody fusion device
L4-L5, removal of instrumentation L3-4, exploration of
fusion L3-4, use of NIMS monitoring system use of o-arm
CT-guided Stealth for screw placement.
{¶ 28} In August 2012, claimant underwent a third surgery described as
"[p]ercutaneous placement of two lumbar spinal cord stimulator leads for trial screening
purposes."
{¶ 29} In April 2013, claimant underwent a fourth surgery which was a permanent
placement of the spinal cord stimulator.
{¶ 30} 4. On December 5, 2013, claimant was examined by treating physician
Stephen Altic, D.O. On December 9, 2013, Dr. Altic wrote:
Clifford was seen in our office on 12/05/13 for evaluation of
the industrial claim mentioned above. His BWC history was
reviewed. No interim injuries. He complains of continued
lumbar pain with occasional radiation and paresthesias
down the left lower extremity to the left foot. He has overall
improvement in his radiating lower extremity pain with a
recent spinal cord stimulator implantation; however, his
lumbar axial pain continues to worsen. He sees Dr. Orzo for
pain management. They are currently working on doing
adjustments through Medtronic to the recent spinal cord
stimulator implant in order to capture the axial pain. In the
meantime, he uses Percocet, cyclobenzaprine and a
Duragesic patch with positive benefit.
No. 16AP-19 11
Review of systems and past medical and surgical history was
reviewed and documented today. His history includes a
spinal cord stimulator implant by Dr. Dixon recently and
previous lumbar fusion L3 to L5.
***
In my medical opinion, present complaints and physical
exam findings, along with the allowed conditions are directly
and proximately related to the patient's injuries sustained at
work on 08/27/2001. I have encouraged the patient to
continue a home exercise program as tolerated. He will
follow up with Dr. Orzo for pain management and spinal
cord stimulator adjustments. We will have him return to our
office in two months for recheck and reevaluation.
{¶ 31} 5. On December 17, 2013, claimant presented to his pain care specialist
Michael Orzo, M.D. In that regard, Dr. Orzo wrote:
SUBJECTIVE NOTES:
Mr. Ball is a 56 year old male. He presents today for a follow
up visit. He was referred to us by Dr. May. At today's visit,
his primary complaint is low back into left leg pain. Mr. Ball
states the medication prescribed provides relief of his pain.
No side effects are reported.
His pain level is increased lately due to increased activity. He
uses his stimulator all the time with some benefit and good
coverage in his leg, hips and buttocks. He will get
reprogrammed on his next visit. 12/17/13
SUBJECTIVE:
Mr. Ball indicated on his visit today that there has been a
slight improvement in his low back pain. He related that
there has ben a modest amount of improvement in the leg
cramps. Mr. Ball remarked that the numbness in the area of
the leg is slightly improved. He also stated today that he is
experiencing a slight decrease of numbness and discomfort
in his left foot. Mr. Ball was requested to evaluate his
perception of the current status of his condition. On a pain
scale of 1 to 10, he reports his low back pain at 6 and leg
cramps at 6 and leg numbness at 6 and left foot numbness
at 6.
No. 16AP-19 12
{¶ 32} 6. On November 6, 2014, claimant visited Dr. Altic for another follow-up.
In his office note of that date, Dr. Altic wrote:
So, he had some logistical problems, but I think still that he
would benefit from voc rehab reevaluation, and we ought to
get an FCE at this point.
***
Plan: Based upon today's visit, I am requesting the following
via C-9:
[One] Functional capacity evaluation with Mr. Scott Secrest.
[Two] Vocational rehab evaluation with Work Ready.
{¶ 33} 7. On November 20, 2014, claimant underwent a Functional Capacity
Evaluation ("FCE") that was conducted by Mr. Scott Secrest. In his three-page narrative
report, Secrest wrote:
Mr. Ball was referred by Stephen Altic, DO to FCE Services,
LLC for a Functional Capacity Evaluation. The purpose of the
functional capacity evaluation was to determine his safe
physical abilities and feasibility for vocational rehabilitation.
***
Conclusions and recommendations are based on a combined
analysis of the client's performance, clinical observations of
their movement patterns, findings from the clinical exam,
and clinical reasoning.
Mr. Ball's presentation is typical of his injury and diagnoses.
He demonstrates relatively competitive ability with certain
tasks in isolation. However, he has increasing symptoms and
diminishing functional tolerance with repetitive and/or
cumulative tasks. When all factors are considered, Mr. Ball
demonstrates safe work ability between the light and the
medium physical demand category. At a minimum, he
demonstrates the ability to complete all material handling
tasks with 30 lb occasionally and 20 lb frequently.
However, it is important to note that he would be unable to
tolerate sustained postures in sitting or standing throughout
the work day. Thus, he will require regularly scheduled or at
least evenly scattered opportunities throughout the work day
No. 16AP-19 13
to make postural/positional adjustments. No single position
should be required for more than a frequent range (66% of
8-hour day), thus allowing for occasional (33% of 8-hour
day) to break from that position. Accordingly, I do not
believe he could perform any material handling task within a
constant range.
{¶ 34} 8. On November 26, 2014, Dr. Altic completed a form provided by the Ohio
Bureau of Workers' Compensation ("bureau") captioned "Physician's Report of Work
Ability," which the bureau designates as a Medco-14. On the Medco-14, Dr. Altic
indicated by his mark that claimant is not released to his former position of employment
but he may return to "available and appropriate work with restrictions."
{¶ 35} Section 3 of the Medco-14 form is captioned "Injured Worker's Capabilities
* * *." Section 3 poses a query to the treating physician. "How many total hours is this
injured worker potentially able to work?" In response, Dr. Altic wrote "8" aside "Hours in
a day." He wrote "40" aside "Hours in a week."
{¶ 36} 8. On December 18, 2014, at claimant's request, he was examined by Nancy
Renneker, M.D. In her five-page narrative report, under "History," Dr. Renneker lists 21
medical documents that she reviewed in preparation for her report. Chronologically, the
list begins with a description of a September 12, 2001 lumbar spine MRI scan and ends
with a description of a September 5, 2013 follow-up office note from Dr. Altic.
The concluding paragraph under "History" states:
As stated above, Clifford Ball last worked on his job as a
production associate at Honda of America Manufacturing,
Inc. in January of 2006 and Clifford Ball is currently on
Social Security Disability. Clifford Ball currently sees Dr.
Stephen Altic, D.O. every two to three months and Pain
Management Specialist, Dr. Orzo on an every two month
basis for this injury/claim.
Under "Present Complaints," Dr. Renneker states:
Clifford Ball complains of constant "24/7" bilateral low back
pain with Clifford Ball reporting that on his current
medications and with the use of his spinal cord stimulator
"24/7" in his low back pain is at best a 4 and at worse a 10 on
a visual analog scale of 0 to 10 with 0 being "no pain" and 10
being "the worse pain of one's life". Clifford Ball also
complains of constant low back stiffness, increased pain and
stiffness about low back in cold or damp weather. Clifford
No. 16AP-19 14
Ball denies any radiation of pain, paresthesia, dysesthesia, or
numbness in his right leg. Clifford Ball complains of constant
"24/7" numbness/paresthesia/dysesthesia down left lateral
leg extending into left foot and Clifford Ball reports that his
entire left foot including all toes are "always numb/tingling
or burning" with pain. Clifford Ball also notes weakness
about his left lower leg. Clifford Ball is continent of bowel
and bladder. Clifford Ball is able to sit or stand for a
maximum interval of 30 minutes, able to walk for at most a
10 minute interval on a level surface, and Clifford Ball
reports that after 10 minutes he will have excruciating left leg
pain, cramping throughout left calf and foot, and burning left
leg pain. Clifford ball is independent in dressing and at the
time of this evaluation, Clifford Ball slips in and out of
loosely tied shoes as though they were loafers. Clifford Ball
avoids all stair climbing with Clifford Ball reporting that he
lives on the first level of his mother's house as he is unable to
climb stairs. Clifford Ball reports that the most that he lifts
and carries is a gallon of milk from the refrigerator to the
dining room table and Clifford Ball reports that his mother,
who also lives with his [sic], does the grocery shopping and
carries in the groceries. Clifford Ball reports that he is unable
to do the yard work involved with the upkeep of a home or is
he able [sic] to vacuum, scrub the tub, and Clifford Ball
reports that he has the least amount of low back and leg pain
when lying down. Clifford Ball spends the majority of his day
lying on a couch or in his bed to decrease his low back and
left leg symptoms. Clifford Ball reports that the longest
interval that he is away from his home is to attend a doctor's
appointment and Clifford Ball reports that on returning to
home that he will spend the rest of his day in bed or lying on
the couch. Clifford Ball reports that he makes simple meals
i.e. a sandwich or microwaves a meal with Clifford Ball
reporting that he notes severe low back and left leg pain if
standing at a kitchen counter or sink to do dishes or to
prepare food.
Under "Social History," Dr. Renneker states:
Clifford Ball is a high school graduate and Clifford Ball
reports that he has always had heavy lifting/labored
jobs/assembly line jobs such as his job as a production
associate at Honda. Clifford Ball states that he lives with his
brother in his mother's home with Clifford Ball reporting
that up until six months ago he lived with his mother and his
brother in his mother's home with Clifford Ball reporting
that his mother recently died. Clifford Ball, as stated above,
No. 16AP-19 15
avoids stair climbing and Clifford Ball lives on the first level
of his mother's home.
{¶ 37} Under "Examination," Dr. Renneker details her findings during the
examination. However, that portion of the report will not be repeated here.
Under "Opinion," Dr. Renneker states:
Based on medical records reviewed, my exam of this date,
and in my medical opinion, Clifford Ball, who is status post
L3-4 posterior lateral fusion on 12-17-2001 and status post
L4-S posterior lateral fusion on 4-10-2009 with ongoing
intractable low back and left leg pain/dysesthesia requiring
around the clock use of a spinal cord stimulator and narcotic
medication/ a Fentanyl Patch and four times a day Percocet
with exam findings consistent with on going left L4, L5, and
left S1 radiculopathy has the following permanent job
restrictions related to his back injury of 8-27-2001: (1) no
floor to waist bending, no kneeling, squatting, crawling,
climbing of ladders or stairs on job (2) able to sit or stand for
a maximum interval of 30 minutes, able to walk on a level
surface for a maximum interval of 10 minutes on an
occasional basis only and Clifford Ball is unable to walk on
uneven terrain and unable to walk or [sic] erratic surfaces (3)
able to occasionally lift from knee height to shoulder height
an object weighing up to 7 lbs. and Clifford Ball is able to
carry this 7 lb. object a distance of no more than 10 to 15
yards on a level surface and on an occasional basis only (4)
no use of left ankle and foot to operate foot controls and (5)
on his current medications and with use of his spinal cord
stimulator, Clifford Ball is unable to operate motorized
equipment in the work place. Clifford Ball is unable to lift at
a sedentary work load. In summary, it is my medical opinion
that Clifford Ball is permanently and totally disabled from
performing sustained remunerative employment due to his
residual physical impairments related to his work injury of
8-27-2001 (Claim no. 01-854453).
{¶ 38} 9. On December 18, 2014, Dr. Renneker completed a form captioned
"Physical Capacity Evaluation." Apparently, this form was provided to Dr. Renneker by
claimant's counsel. There is no indication on the form that it was produced by the bureau
or the commission. The form provides the following instructions:
Please answer the questions and give the limitations that you
believe are imposed upon the above referenced claimant.
Keep in mind that we are asking you to assume in answering
No. 16AP-19 16
these questions with regard to limitations; that this is a work
setting where a person would be required to work eight
hours a day, day after day, on a sustained and regular basis.
If in your opinion there is a medical basis for this claimant's
pain, please factor that in this claimant's ability to do the
following items.
{¶ 39} Following the instructions, the form presents 11 enumerated queries. The
first three of the queries are as follows:
[One] In an 8 hour day and in a work situation, how many
can the claimant stand?
***
[Two] In an 8 hour day and in a work situation how many
can the claimant walk?
***
[Three] In an 8 hour day and in a work situation, how many
can the claimant sit?
{¶ 40} Underneath each of the first three queries quoted above, the form invites
the physician to indicate by his or her mark the number of hours the claimant can stand,
walk, and sit.
{¶ 41} By her mark, Dr. Renneker indicated that claimant can stand for two hours,
walk for one hour, and sit for two hours.
{¶ 42} The fourth query on the form asks the physician "How many hours can the
claimant stand, walk and sit at one time without interruption?" In response, Dr.
Renneker indicated by her mark that claimant can stand 1/2 hour without interruption,
he can walk 1/6 hour without interruption, and he can sit 1/2 hour without interruption.
{¶ 43} The fifth query asks the physician to indicate how many pounds claimant
can lift. Given a choice of "None," "5 lbs," "10 lbs," "11-20 lbs," "21-50 lbs," and "over 51
lbs," Dr. Renneker selected "5 lbs."
{¶ 44} The sixth query on the form asks "Lifting as indicated above can be
performed during the work day." Given a choice of "None," "Occasionally," "Frequently,"
and "Continuously," Dr. Renneker selected "Occasionally."
No. 16AP-19 17
{¶ 45} In response to the seventh query on the form, Dr. Renneker indicated by her
mark that claimant can use his hands for repetitive "Simple Grasping" and "Fine
Manipulation," but claimant cannot do pushing and pulling.
{¶ 46} In response to the eighth query on the form, Dr. Renneker indicated that
claimant can use his right foot for repetitive movements as in operating foot controls, but
he cannot so use his left foot.
{¶ 47} In response to the ninth query, Dr. Renneker indicated by her mark that
claimant can "partially bend" "[o]ccasionally" but he cannot squat, crawl, climb stairs, and
climb ladders at all.
{¶ 48} In response to the tenth query, Dr. Renneker indicated that claimant "is
able to reach above the shoulder level."
{¶ 49} The eleventh query asks "Is the claimant's condition likely to deteriorate if
placed under stress, particularly stress associated with the job?" In response, Dr.
Renneker marked the "yes" space.
{¶ 50} 10. On January 23, 2015, claimant filed an application for PTD
compensation. In support, claimant submitted the reports of Dr. Renneker.
{¶ 51} 11. On March 9, 2015, at Honda's request, claimant was examined by
Kenneth A. Mankowski, D.O., who is board certified in neurology and psychiatry. In his
five-page narrative report dated March 27, 2015, Dr. Mankowski opined:
In my opinion, Mr. Ball does have the ability to engage in
sustained remunerative employment considering the
impairments resulting from the allowed conditions of this
claim. I acknowledge Dr. Renneker's physical examination
findings and opinions outlined in her note dated
December 18, 2014. However, the neurological deficits that
she described were not present during my examination on
March 27, 2015. I performed a comprehensive general and
neurological examination and did not identify any significant
fixed neurological deficits.
In my opinion, Mr. Ball does have some physical restrictions
and limitations as related to the allowed conditions of this
claim. These include: not lifting greater than 10 pounds,
standing/walking a maximum of three hours per day,
crouching/stooping or bending up to one third of the
workday, [a] total maximum of five hours per day in the
seated position and a maximum of two hours of consecutive
No. 16AP-19 18
time in a seated position. These restrictions and limitations
can be best described as a light duty capacity of work ability.
Dr. Johnson describes appropriate vocational options in his
report dated September 6, 2010. It is important to
remember, Mr. Ball does not have any significant fixed
neurological deficits and/or instabilities of the spine. The
work related restrictions and limitations result from his
continued chronic pain and reduced range of motion of the
musculoskeletal system. Remaining or reentering into the
workforce with proper restrictions and limitations will have a
neutral or more likely than not a beneficial effect on these
issues.
{¶ 52} 12. On April 28, 2015, at the commission's request, claimant was examined
by Ronald J. Bloomfield, M.D. In his three-page narrative report, Dr. Bloomfield opined:
I have completed the enclosed physical strength rating. I feel
he is capable of sedentary work with no left foot controls. I
believe he can push and pull 10 pounds on an occasional
basis and negligible weights on a frequent basis. There would
be no restrictions regarding use of the upper extremities. He
would not be allowed to crawl, go to heights, or kneel in the
workplace. He can perform a wide range of sedentary work
with no restrictions regarding the upper extremities but no
left foot controls.
{¶ 53} 13. On April 30, 2015, Dr. Bloomfield completed a form captioned "Physical
Strength Rating." On the form, Dr. Bloomfield indicated by his mark that claimant is
capable of "sedentary work." The form asks for "[f]urther limitations, if indicated."
Thereunder, in the space provided, Dr. Bloomfield wrote "No left foot controls; no upper
ext[remity] restrictions."
{¶ 54} 14. At Honda's request, vocational expert Craig Johnston, Ph.D., prepared a
report captioned "Employability Assessment," dated July 16, 2015. In his five-page
narrative report, Dr. Johnston opined that claimant is employable. In his report, Dr.
Johnston analyzed the vocational factors:
a. Age: Mr. Ball is 58 years of age, defined by the Industrial
Commission as a "Person of Middle Age". He would have
approximately 7 remaining years of standard worklife
expectancy, assuming a retirement age of 65. His age is a
potential barrier to employment, but is not alone work
prohibitive. He last worked in 2006, when he was 48 years of
age.
No. 16AP-19 19
b. Education: The claimant graduated from high school
and completed one "trimester" at DeVry in Electronics in
1987. His education is defined as a "High School Education
and Above", and is consistent with the ability to engage in
skilled work activity. The claimant states that he can read,
write, and do basic math. His age is an asset to securing
future employment.
c. Work History: Mr. Ball has demonstrated the ability to
work in positions requiring average aptitudes of intelligence,
spatial perception, clerical perception, and manual dexterity.
He has demonstrated 7-8th grade reasoning and language
proficiencies and a 4-6th grade mathematics proficiency. He
has demonstrated temperaments for occupations requiring
that he perform repetitive duties, attain precise tolerances,
and work under specific instructions. Specific skills have
been developed in the Work Fields of structural fabrication,
electrical fabrication, mechanical fabrication, winding,
baking-drying, accommodating, and cleaning; and in the
MPSMS of meal services, dairy products, paper and allied
products, and motor vehicles. His work history provides the
fundamental skills for entry-level work. Additional work, not
included on his PTD application, include plant manager and
foreman, occupations that if performed consistent with the
DOT, would provide a significant additional skills and work
competencies.
{¶ 55} 15. Following a September 24, 2015 hearing, an SHO mailed an order on
October 10, 2015 awarding PTD compensation starting December 18, 2014 based on the
report of Nancy Renneker, M.D. The SHO's order explains:
Based upon the report(s) of Dr(s). Nancy Renneker, M.D.,
dated 12/18/2014, it is found that the Injured Worker is
unable to perform any sustained remunerative employment
solely as a result of the medical impairment caused by the
allowed conditions(s). Therefore, pursuant to State ex rel.
Speelman v. Indus. Comm. (1992), 73 Ohio App. 3d 757, it is
not necessary to discuss or analyze the Injured Worker's
non-medical factors.
The order is based only on the report of Dr. Renneker
because it is found that hers was the most complete and
reasonable exam on file. The Injured Worker has had four
surgeries, uses a spinal cord stimulator constantly, uses the
narcotic medication fentanyl patch, takes Percocet four times
per day, is only able to sit or stand a maximum of 30 minutes
No. 16AP-19 20
at a time, can only walk for 10 minutes at a time and only if
there is a level surface, can only lift a 7 pound object
occasionally, cannot operate left ankle and foot controls.
{¶ 56} 16. On December 5, 2015, the three-member commission mailed an order
denying relator's motion for reconsideration of the SHO's order of September 24, 2015.
{¶ 57} 17. On January 11, 2016, relator, Honda of America, Mfg., Inc., filed this
mandamus action.
Conclusions of Law:
{¶ 58} The main issue is whether the report of Dr. Renneker on which the
commission exclusively relied, provides some evidence to support the commission's PTD
award.
{¶ 59} Finding that the report of Dr. Renneker does not provide some evidence to
support the PTD award, it is the magistrate's decision that this court issue a writ of
mandamus, as more fully explained below.
{¶ 60} In State ex rel. Toth v. Indus. Comm., 80 Ohio St. 3d 360, 362 (1997), the
Supreme Court of Ohio held that "part-time work constitutes sustained remunerative
employment." Id. at 362. However, the Toth court did not hold that any part-time
work─no matter how few the hours per week the job might entail─is considered sustained
remunerative employment.
{¶ 61} On a case-by-case basis, guidance from this court has developed over time
as to what part-time employment may be viewed as sustained remunerative employment.
{¶ 62} Recently, in State ex rel. Sheller-Chiles v. Indus. Comm., 10th Dist. No.
13AP-245, 2014-Ohio-313, ¶ 5, this court had occasion to review the case law establishing
the standard for determining what part-time work capacity constitutes sustained
remunerative employment. This court held that a work capacity of "four or more hours
per day" constitutes sustained remunerative employment. Id. See State ex rel.
Bonnlander v. Hamon, 10th Dist. No. 14AP-855, 2015-Ohio-4038. (Providing a succinct
discussion of Toth and Sheller-Chiles.)
{¶ 63} The "Physical Capacity Evaluation" form completed by Dr. Renneker on
December 18, 2014 shows that claimant retains the physical capacity for part-time work of
four to five hours per day. That is, as indicated by the marking of the form by Dr.
Renneker, "in a work situation" claimant can stand for two hours in an eight hour day, he
No. 16AP-19 21
can sit for two hours in an eight hour day, and he can walk for one hour in an eight hour
day.
{¶ 64} Moreover, Dr. Renneker indicated on the form that claimant can stand
without interruption for 30 minutes, he can sit without interruption for 30 minutes, and
he can walk without interruption for 10 minutes.
{¶ 65} It can further be observed that Dr. Renneker's indication on the form that
claimant can lift five pounds occasionally but cannot lift ten pounds does not preclude
sedentary work under Ohio Adm.Code 4121-3-34(B)(2)(a). State ex rel. Petermann
LLC v. Ragle, 10th Dist. No. 11AP-556, 2012-Ohio-5659.
{¶ 66} By contrast, in her five-page narrative report, Dr. Renneker opines that
claimant "is permanently and totally disabled from performing sustained remunerative
employment due to his residual physical impairments related to his work injury."
{¶ 67} Dr. Renneker's disability opinion in her narrative report is inconsistent with
her completion of the "Physical Capacity Evaluation" form. Both documents relate to the
same medical examination performed on December 18, 2014 yet two very different
opinions of relator's disability emerge. While the "Physical Capacity Evaluation" indicates
that claimant can perform part-time "in a work situation," the narrative report indicates
that claimant cannot perform sustained remunerative employment.
{¶ 68} It has been held that a doctor's report can be so internally inconsistent that
it cannot be some evidence upon which the commission can rely. State ex rel. Lopez v.
Indus. Comm., 69 Ohio St. 3d 445 (1994); State ex rel. Taylor v. Indus. Comm., 71 Ohio
St.3d 582 (1995). By extension, substantial inconsistencies between two C-84s generated
by the same examination compel the same result. State ex rel. M. Weingold & Co. v.
Indus. Comm., 97 Ohio St. 3d 44, 2002-Ohio-5353.
{¶ 69} The Weingold rationale was applied by this court to eliminate from
evidentiary consideration a physician's C-84 that was inconsistent with the physician's
examination notes. State ex rel. Genuine Parts Co. v. Indus. Comm., 160 Ohio App. 3d 99,
2005-Ohio-1447 (10th Dist.).
{¶ 70} In Genuine Parts, the commission had relied upon a C-84 from Dr. Snell to
support and award of TTD compensation. Holding that Dr. Snell's report is not some
evidence upon which the commission can rely, this court explained:
No. 16AP-19 22
Contrary to the respondent's contention, Dr. Snell's C-84 is
not some evidence upon which the commission could rely
because the C-84 is inconsistent with Dr. Snell's examination
notes. Recognizing this inconsistency does not require the
weighing of evidence as respondent argues. We give no
greater weight to either the C-84 or the examination notes.
We simply find, as did the magistrate, that they relate to the
same examination and that they are inconsistent. The fact
that the inconsistency arises from statements contained in
two different documents rather than in one report is not
significant. Again, it is clear that both documents were
prepared by Dr. Snell and relate to the same physical
examinations. As the magistrate notes, the same rationale
was applied in State ex rel. M. Weingold & Co. v. Indus.
Comm., 97 Ohio St. 3d 44, 2002 Ohio 5353, 776 N.E.2d 69,
which involved substantial inconsistencies between two C-
84's arising from the same examination.
Id. at ¶ 4.
{¶ 71} Based on the above-described case law, the magistrate concludes that
Dr. Renneker's report does not provide the commission with some evidence to support
the PTD award.
{¶ 72} On remand of this cause to the commission for further proceedings,
Dr. Renneker's reports must be eliminated from evidentiary consideration.
{¶ 73} Accordingly, for all the above reasons, it is the magistrate's decision that this
court issue a writ of mandamus ordering the commission to vacate its SHO's order of
September 24, 2015 awarding PTD compensation, and, in a manner consistent with this
magistrate's decision, enter a new order that adjudicates the PTD application.
/S/ MAGISTRATE
KENNETH W. MACKE
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).