State ex rel. Patterson v. Indus. Comm. ( 2017 )

[Cite as State ex rel. Patterson v. Indus. Comm., 2017-Ohio-9195.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Leona Patterson, :
Relator, :
v. : No. 16AP-786
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Greater Cleveland Regional
Transit Authority, :
Respondents. :
D E C I S I O N
Rendered on December 21, 2017
On brief: N.R.S. Co. L.P.A., Jerald A. Schneiberg, and
Corey J. Kuzma, for relator.
On brief: Michael DeWine, Attorney General, and
Amanda B. Brown, for respondent Industrial Commission of
Ohio.
On brief: Anna Hlavacs, for respondent Greater Cleveland
Regional Transit Authority.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
SADLER, J.
{¶ 1} Relator, Leona Patterson, brings this original action seeking a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its June 23, 2016 order denying relator's fourth application for permanent total disability
("PTD") compensation.
No. 16AP-786 2
{¶ 2} The record shows relator sustained a work-related injury while working as a
bus driver in 1992. After she returned to work as a bus driver, relator sustained serious
injuries when several juveniles assaulted her on April 2, 2000. Relator did not return to
work following the April 2, 2000 injury. Relator filed her first PTD application in 2012.
On June 10, 2004, a staff hearing officer ("SHO") determined "claimant has failed to
prove by a preponderance of competent medical evidence that the injuries the claimant
sustained during her work career is preventing her from sustained and gainful
employment. [T]he medical evidence * * * indicates the claimant could perform
sedentary employment." (Emphasis omitted.) (Stipulated Record at 143-44.) On May 12,
2005, an SHO denied relator's second PTD application finding "[h]er disability is partial,
not total. Her allowed injuries do not prevent her from engaging in sustained
remunerative employment." (Stipulated Record at 156.) On November 27, 2012, an SHO
denied relator's third PTD application on finding relator was not "physically or
psychologically prevent[ed] * * * from engaging in sustained remunerative employment *
* * in the sedentary to light duty levels." (Stipulated Record at 167.) On March 3, 2014,
following a vocational assessment, an SHO issued an order finding "the Injured Worker's
request for entrance into a rehabilitation vocational plan is denied as the Injured Worker
is not a feasible candidate."1 (Stipulated Record at 133.)
{¶ 3} On September 9, 2016, the three-member commission denied relator's
fourth application for PTD. In denying relator's fourth application for PTD, the
commission found "the Injured Worker is ineligible to receive [PTD] compensation for
the reason her lack of effort to pursue suitable employment since at least 6/23/04, the
date the order was issued denying the first of her three prior [PTD] Applications * * *,
demonstrating an abandonment of the work force on that date." (Stipulated Record at
22.) Relator subsequently filed the instant action seeking a writ of mandamus.
{¶ 4} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who rendered a decision and
recommendation including findings of fact and conclusions of law, which is appended
hereto. The magistrate determined the commission did not abuse its discretion in
1The magistrate found "the SHO's order of March 3, 2014 was not administratively appealed." (Mag.'s
Decision at 7.)
No. 16AP-786 3
denying relator's fourth application for PTD benefits because evidence in the record
supported the commission's finding that relator abandoned the workforce as early as June
2004. Accordingly, the magistrate recommended we deny the requested writ of
mandamus.
{¶ 5} 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 the commission has a clear legal duty to provide such relief. State ex rel. Pressley v.
Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists
where the relator shows the commission abused its discretion by entering an order which
is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26
Ohio St.3d 76 (1986).
{¶ 6} Relator does not separately set forth an objection to the magistrate's
decision. However, the crux of relator's claim is the commission failed to consider
relator's allowed psychological condition in making the determination that she
abandoned the workforce. The magistrate rejected relator's argument because relator had
never previously contended the commission failed to consider her allowed psychological
condition in denying her three prior PTD applications and because the commission
grounded its finding of abandonment on relator's failure to rejoin the workforce after the
denial of each of those prior applications. We agree with the logic employed by the
magistrate.
{¶ 7} In this case, there have been three prior determinations by the commission
that relator is capable of sustained remunerative employment at the light duty or
sedentary level. As the magistrate noted, relator has never contended the commission
failed to consider relator's allowed psychological condition in denying any of relator's
three prior PTD applications. Moreover, our review of the three prior determinations
reveals the commission considered relator's allowed psychological condition in denying
PTD. There is no dispute relator failed to return to work after any of those prior
determinations.
{¶ 8} Relator next contends the magistrate's decision is at odds with the decision
of this court in State ex rel. Young v. Butler Cty. Personnel Office, 10th Dist. No. 15AP-
1035, 2016-Ohio-8341. In Young, the commission denied relator's PTD application on
No. 16AP-786 4
finding relator had voluntarily abandoned the workforce. Relator filed a mandamus
action in this court arguing the commission abused its discretion in ruling relator
abandoned the workforce when that issue had not been raised by the employer. The
magistrate disagreed and recommended we deny the requested writ. Relator objected to
the magistrate's decision arguing the commission abused its discretion in finding relator
voluntarily abandoned the workforce where the evidence showed relator was not
medically capable of participating in rehabilitation services. In rejecting relator's
argument, this court stated "if the claimant is not medically capable of participating in
vocational rehabilitation services or working, * * * abandonment of the workforce is not
voluntary." (Emphasis added.) Id. at ¶ 6.
{¶ 9} In this case, the commission's prior three orders denying PTD contained a
finding that relator was currently capable of sustained remunerative employment in the
light duty or sedentary level. The commission's findings regarding current employability
included consideration of relator's allowed psychological condition and were not
predicated on relator's participation in vocational rehabilitation services. Because relator
was medically capable of working as early as June 2004, without the benefit of vocational
training, nothing in our decision in Young precluded the commission from finding relator
voluntarily abandoned the workforce as early as June 2004. Contrary to relator's
assertion, Young actually supports the magistrate's decision.
{¶ 10} To the extent relator contends the SHO's March 3, 2014 feasibility
determination precluded the commission from subsequently finding relator abandoned
the workforce in 2004, we note Ohio Adm.Code 4121-3-34(D)(1)(d) sets the test for
voluntary abandonment as follows:
If, after hearing, the adjudicator finds that the injured worker
voluntarily removed himself or herself from the work force,
the injured worker shall be found not to be permanently and
totally disabled. If evidence of voluntary removal or
retirement is brought into issue, the adjudicator shall consider
evidence that is submitted of the injured worker's medical
condition at or near the time of removal/retirement.
(Emphasis added.)
No. 16AP-786 5
{¶ 11} Because the commission's determination that relator voluntarily removed
herself from the workforce in 2004 required consideration of "the injured worker's
medical condition at or near the time of removal/retirement," the commission's 2014
feasibility determination is irrelevant to the question of abandonment. Nevertheless, it is
evident from the commission's March 3, 2014 order and the evidence on which the
commission relied that the commission fully considered relator's allowed psychological
condition in making the determination relator was not a feasible candidate for vocational
rehabilitation services. As the magistrate noted, the commission relied on the vocational
rehabilitation assessment submitted by vocational specialist Amy Corrigan in making the
determination regarding relator's eligibility for vocational rehabilitation services. The
magistrate determined Corrigan's report provided some evidence on which the
commission could rely in rejecting relator's assertion she wants to re-enter the workforce.
We agree with the magistrate.
{¶ 12} Following an independent review of the magistrate's decision and the
objections filed by respondent, we find the magistrate has determined the pertinent facts
and properly applied the relevant law. Accordingly, we adopt the magistrate's decision as
our own, including the findings of fact and conclusion of law contained therein. For the
reasons set forth in the magistrate's decision and those expressed herein, relator's
objection is overruled, and relator's request for a writ of mandamus is denied.
Objection overruled;
writ of mandamus denied.
KLATT and BRUNNER, JJ., concur.
________________
No. 16AP-786 6
A P P E N D I X
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Leona Patterson, :
Relator, :
v. : No. 16AP-786
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Greater Cleveland Regional :
Transit Authority,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on July 7, 2017
Nager, Romaine & Schneiberg, Co. LPA, Jerald A.
Schneiberg, and Corey J. Kuzma, for relator.
Michael DeWine, Attorney General, and Amanda B. Brown,
for respondent Industrial Commission of Ohio.
Anna Hlavacs, for respondent Greater Cleveland Regional
Transit Authority.
IN MANDAMUS
{¶ 13} In this original action, relator, Leona Patterson, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate its June 23, 2016 order denying relator's fourth application for permanent total
disability ("PTD") compensation on grounds that relator voluntarily abandoned the
No. 16AP-786 7
workforce and is, thus, ineligible for compensation, and to enter an order that
adjudicates the application absent a finding of voluntary workforce abandonment.
Findings of Fact:
{¶ 14} 1. Relator has two industrial claims arising from her employment as a bus
driver for respondent Greater Cleveland Regional Transit Authority ("GCRTA"), a self-
insured employer under Ohio's workers' compensation laws.
{¶ 15} 2. The first injury occurred March 12, 1992. The industrial claim (No. 92-
46564) is allowed for:
Trunk injury; contusion right shoulder; right shoulder/upper
arm injury; sprain right shoulder/arm; right hip and thigh
injury; sprain right hip and thigh; lumbosacral sprain.
{¶ 16} 3. The second injury occurred April 2, 2000. The industrial claim (No.
00-382124) is allowed for:
Traumatic glaucoma/cataract - left eye; depressed fracture of
the nasal bone; post-traumatic stress disorder; major
depression; anxiety disorder.
{¶ 17} 4. On January 2, 2003, relator filed her first PTD application.
{¶ 18} 5. Following a June 10, 2004 hearing, a staff hearing officer ("SHO")
issued an order denying relator's PTD application. The SHO's order of June 10, 2004
explains:
[T]he claimant has failed to prove by a preponderance of
competent medical evidence that the injuries the claimant
sustained during her work career is preventing her from
sustained and gainful employment.
***
[T]he medical evidence * * * indicates the claimant could
perform sedentary employment. Her daily activities also
suggest claimant could perform sedentary work and could
perform the booth attendant job previously offered by the
employer. * * * [T]he claimant has strong vocational assets in
her young age and her education which includes a GED and
training in cosmetology and word processing.
These vocational factors are sufficient for the claimant to
perform sustained and gainful work at the sedentary level.
No. 16AP-786 8
(Emphasis sic.)
{¶ 19} 6. On September 3, 2004, relator filed her second PTD application.
{¶ 20} 7. Following a May 12, 2005 hearing, an SHO issued an order denying the
second PTD application. The SHO's order of May 12, 2005 explains:
The medical evidence indicates that the injured worker
cannot perform the bus driver job that she had before her
injury in 2000 but that she can perform work at the 'light'
strength level, in a job where she did not need perfect visual
acuity or a complete field of vision, and where she would not
be around crowds and juveniles. She has a high school
education, with additional training in word processing, is
capable of reading and writing as well as learning new skills
and is young enough for vocational training. * * * Her
disability is partial, not total. Her allowed injuries do not
prevent her from engaging in sustained remunerative
employment.
{¶ 21} 8. On February 9, 2012, relator filed her third PTD application.
{¶ 22} 9. Following a November 27, 2012 hearing, an SHO issued an order
denying the third PTD application. The SHO's order of November 27, 2012 explains:
The Staff Hearing Officer find that the residual functional
capacities as set forth above in the medical reports would not
physically and psychologically prevent the Injured Worker
from engaging in sustained remunerative employment
consistent with various job titles in the sedentary and light
duty levels.
***
In conclusion, the Staff Hearing Officer understands the
Injured Worker sustained a serious eye injury and has
allowed medical restrictions including physical and
psychological conditions that are related to this [sic]
industrial injuries. The Staff Hearing Officer also
understands that the Injured Worker last worked on the date
of injury in this claim.
However, the Staff Hearing Officer finds that the medical
records from the doctors noted above do indicate that the
Injured Worker is capable of light duty and/or sedentary
level work. A review of the vocational factors indicate that
No. 16AP-786 9
neither age, education nor employment are a barrier to
obtaining and maintaining sustained remunerative
employment.
Furthermore, the Injured Worker's lack of vocational
rehabilitation services has not gone unscrutinized. Although
the prior refusal to participate is not a bar to permanent total
disability compensation, it will be considered. To date, the
Injured Worker has not attempted any vocational
rehabilitation services. Therefore, based on a totality of
circumstances noted above, the Injured Worker is not
permanently and totally disabled.
{¶ 23} 10. The record contains a 12-page document captioned "Vocational
Rehabilitation Assessment Report." The last page of the document indicates the
document was prepared by Amy L. Corrigan, M.Ed., CRC, a vocational evaluation
specialist. Corrigan is an employee of VocWorks. On the first page of the document,
Corrigan is listed as the "Evaluator."
{¶ 24} The document indicates that relator was referred for a "Vocational
Rehabilitation Assessment on January 29, 2014. The first page of the document states
that the dates of service are February 10 to February 24, 2014.
{¶ 25} On the last two pages of the document, Corrigan concludes:
The feasibility factors that are not in Ms. Patterson's favor
are listed as follows:
 Motivation
Ms. Patterson does not present as particularly
motivated to participate in services or to return to
competitive employment, which is apparent from her
overall interactions and behaviors during this
assessment. Ms. Patterson was not able to finish any
of the vocational requests without assistance or
prompts, including (1) completing the vocational
questionnaire beforehand (she let her daughter fill out
the form) (2) finishing the achievement tests during
the evaluation (she quit early despite
accommodations for time, lighting, use of a magnifier,
and verbal support/direction) and (3) delaying the
completion of the take-home tests with interim phone
messages related to her vision limitations (she focused
on her perceived inability to independently complete
No. 16AP-786 10
the tests without utilizing the resources/strategies
discussed when the assignment was given, namely
working at her own pace or enlisting her daughter's
help.)
 Past Participation
Ms. Patterson's past participation in
vocational/medical services shows a well-documented
pattern of her uncooperative demeanor and actions.
During this evaluation, she was not as disagreeable as
she was just seemingly disinclined or disconnected.
However, past behavior patterns suggest that Ms.
Patterson would approach vocational rehabilitation
services in the same or similar manner (i.e.,
reluctantly, passively or actively resistant to direction
and competitive expectations.)
 Medical Stability
Ms. Patterson's physical/psychological stability
remains an issue in terms of her readiness and release
to work. While some of the referral information
reflects recommendations for her re-employment with
restrictions, the most recent case note from the
attending psychologist indicates "she is to[o]
depressed and anxious to return to work" and the
Physician's Report of Work Ability report from Aaron
Billowitz, M.D. indicates she is temporarily not
released to work including the former position of
employment. Observations noted from this
assessment indicate Ms. Patterson is at least
inconsistent in her physical/mental demeanor (i.e., on
time and prepared, but unable to finish the
assessment; accepts daughter's help to fill out
questionnaire, but does not seek help to finish the
take-home tests; unable to focus on tests in the sunny
library room and bumps into the wall/door jamb, but
able to drive herself to/from the library location; etc.)
 Employment Objectives
Ms. Patterson has a few personal or attitude barriers
that suggest a negative vocational outcome or would
at least impact the effectiveness of services. Her
return-to-work objectives or parameters are either too
vague or unreasonable. Ms. Patterson cannot define
any job goals for direct placement or name jobs that
No. 16AP-786 11
appeal to her in an ideal or hopeful way, and she has a
number of restrictions in terms of prospective work
tasks or environments (i.e., no driving, no general
public or people, no children, no pressing clothes, no
outdoors, no visual tasks/paperwork, no morning
schedule, etc.) She is unwilling to commute more than
a few miles to a new job, and she will not utilize public
transportation. Ms. Patterson shares a car with a
friend, suggesting she would have to coordinate a
work schedule with this person or get a ride through
friends/family. And, she wants to earn the
same/similar high wages as the position she held 14
years ago.
Comments/Conclusions
Ms. Patterson is not a feasible candidate for the Bureau of
Workers' Compensation Vocational Rehabilitation Program
at this time, because it is unlikely she will return to
competitive employment as a result. Simply put, the
identified negative factors outweigh the positive factors
observed during this assessment.
(Emphasis sic.)
{¶ 26} 11. On March 3, 2014, an SHO heard the matter of relator's eligibility and
feasibility for vocational services. Following the hearing, the SHO issued an order
denying relator entrance into a vocational rehabilitation plan. The SHO's order of
March 3, 2014 explains:
The Hearing Officer notes that authorization was granted by
a District Hearing Officer on 12/23/2013 for a referral to
vocational rehabilitation for a determination of
eligibility/feasibility. The Self-Insuring Employer conducted
an evaluation from 02/10/2014 through 02/24/2014. The
Hearing Officer finds that the result of that evaluation found
the Injured Worker not feasible to participate in a vocational
rehabilitation plan.
In accordance with Ohio Adm.Code 4123-18-03(H)(1)
"Feasibility for vocational rehabilitation services means there
is a reasonable probability that the Injured Worker will
benefit [from] services at this time and return to work as a
result of the services." If it is determined that it is likely that
the Injured Worker will not return to work in spite of the
No. 16AP-786 12
provisions of such services, then the Injured Worker is not
feasible.
The findings of the vocational assessment took into
consideration when determinating [sic] whether or not the
Injured Worker was a feasible candidate included that the
Injured Worker does not present particularly motivated to
participate or to return to competitive employment. Further,
the Injured Worker's past participation indicated that the
Injured Worker was disinclined or disconnected. The Injured
Worker's current medical [conditions] resulting from the
allowed conditions of this claim and other medical
conditions not a part of this claim (i.e. bilateral knees, back)
pose a significant barrier from returning to work. Other
factors taken into consideration included the Injured
Worker's gap in time out of the work force, sedentary to light
work restrictions and transportation limitations.
The Hearing Officer notes that the findings of the Self-
Insuring Employer's assessment are consistent with the
documentation contained in the file submitted on behalf of
the Injured Worker. Dr. Billowitz notes on 09/16/2013 that
the Injured Worker initiates very little and does not express
notable goals or plans. Dr. Rozel notes on 02/17/2014 that
the process of a vocational assessment was just a formality.
Finally, Mark Anderson concluded in his vocational
assessment that the Injured Worker has no return to work
potential and is not a feasible candidate for vocational
rehabilitation.
Therefore, the Hearing Officer finds that the Injured
Worker's request for entrance into a vocational rehabilitation
plan is denied as the Injured Worker is not a feasible
candidate.
{¶ 27} 12. Apparently, the SHO's order of March 3, 2014 was not
administratively appealed.
{¶ 28} 13. On January 6, 2015, relator filed her fourth PTD application which is
at issue in this mandamus action.
{¶ 29} 14. On March 2, 2015, at the commission's request, relator was examined
by Elizabeth Mease, M.D. Dr. Mease practices internal medicine. Dr. Mease examined
No. 16AP-786 13
only for the allowed physical conditions of the two industrial claims. In her six-page
narrative report, Dr. Mease opines:
Impression
Ms. Leona Patterson is a 55 year old woman who was injured
on 4-02-2000 when she was assaulted by several juveniles
and she sustained a traumatic injury to her left eye and nose.
This claim is allowed for glaucoma with ocular
trauma/cataract left eye, 100% vision loss left eye, nasal
bone fracture, closed, post traumatic stress disorder and
major depression; anxiety disorder. She has had other
industrial injuries involving her cervical spine, shoulders,
lumbar spine, right hip and both knees. She has been treated
conservatively for those injuries. Current findings reveal
visual acuity of 20/200 left eye and wide irregular iris
(consistent with prior iridectomy left eye). She was observed
to have normal range of motion of the cervical spine and
lumbar spine. She has full passive range of motion of both
shoulders. Right hip and both knees ranges of motion are
within normal limits. There is a discrepancy between
demonstrated ranges of motion and observed ranges of
motion. Symptom magnification behavior is present.
In your opinion is the IW permanently and totally
disabled from sustained remunerative employment
due to the allowed physical conditions in the claim?
Please explain.
No. Solely for the allowed physical conditions in her claims,
she is not permanently and totally disabled from sustained
remunerative employment. She has essentially monocular
vision right eye and she does drive. She has no objective
evidence of functional deficits to other body parts including
cervical spine, both shoulders, lumbar spine, hips and both
knees. She is able to perform light physical demand
activities. She is able to perform activities that allow for only
monocular vision. Vocational assessments indicate that there
are jobs available within her functional capabilities.
(Emphasis sic.)
{¶ 30} 15. On February 16, 2015, at the commission's request, relator was
examined by clinical psychologist Robert G. Kaplan, Ph.D. Dr. Kaplan examined only
No. 16AP-786 14
for the psychological conditions allowed in the industrial claim regarding the April 2,
2000 injury. In his 23-page narrative report, dated June 18, 2015, Dr. Kaplan opines:
With reasonable psychological certainty, it can be stated
that:
[One] In addition to having bona fide symptoms of anxiety
and depression, Ms. Leona C. Patterson is exaggerating,
fabricating, and malingering psychological symptoms,
including cognitive impairment, and is exaggerating pain
and physical limitations that are caused by the allowed
conditions. Furthermore, she is not a reliable reporter of her
history, or the causes of her psychological symptoms and
impairments.
[Two] Ms. Leona C. Patterson is not Permanently and Totally
Disabled by the allowed psychological conditions of an
industrial injury that occurred on 4/2/2000.
{¶ 31} 16. On July 23, 2015, at the commission's request, relator was examined
by licensed clinical psychologist Richard G. Litwin, Ph.D. In his seven-page narrative
report, Dr. Litwin opined:
In the examiner's opinion, Ms. Patterson has reached MMI
status for her psychological allowances. Despite years of
treatment, she remains depressed, paranoid and chronically
anxious. She does not report having any strong coping skills
that have been incorporated into her daily life. She does not
report that medications have made a significant impact on
her psychological symptoms.
The overall percentage of permanent impairment
arising from her allowed psychological diagnoses
is considered Class 3, Moderate Impairment,
resulting in 28% whole person impairment. Findings
are based upon this current evaluation, and taking an
average of the four areas of functional impairment noted
above, a review of the psychological records, and with
reference to the AMA Guides Second and Fifth edition and
the Industrial Commission Medical Examination manual.
See the completed Occupational Activity Assessment Form
for further discussion setting forth mental limitations
resulting from the allowed psychological condition.
No. 16AP-786 15
(Emphasis sic.)
{¶ 32} 17. On August 5, 2015, Dr. Litwin completed a form captioned
"Occupational Activity Assessment[,] Mental & Behavioral Examination." On the form,
Dr. Litwin indicated by his mark "[t]his Injured Worker is incapable of work."
{¶ 33} 18. On August 12, 2015, at the commission's request, relator was
examined by Jess G. Bond, M.D. Dr. Bond examined only for the allowed physical
conditions of the two industrial claims. In his four-page narrative report, Dr. Bond
opines:
Based on review of the records provided and the findings of
this examination, the Injured Worker has no work
limitations. The Physical Strength Rating form has been
completed (please see enclosed form). Disability factors such
as age, education, and work/training/experience were not
taken into consideration.
{¶ 34} 19. On August 12, 2015, Dr. Bond completed a Physical Strength Rating
form. On the form, Dr. Bond indicated by his mark "[t]his Injured Worker has no work
limitations."
{¶ 35} 20. On September 15, 2015, at the commission's request, relator was
examined by ophthalmologist Jeffrey T. Starkey, M.D. In his two-page narrative report,
dated December 7, 2015, Dr. Starkey opines:
There is no doubt that Mrs. Patterson has suffered
significant trauma to her left eye with resultant loss of both
central and peripheral from secondary glaucoma, lack of iris,
and her corneal scleral scar. However, I can not account for
her said loss of vision in her right eye. The only significant
pathology that she possesses on the right is a mild cataract,
which in no way could explain her 20/200 vision in my
office. This is also not consistent with her ability to obtain a
drivers license to operate a motor vehicle in the state of Ohio.
It therefor becomes obvious to me that her vision loss in the
right eye is non-physiologic, and I expect that some of her
visual loss in the left eye is also non-physiologic. I am
therefor not comfortable with estimating her level of visual
impairment and subsequent whole person impairment. I
would suggest that the Ohio Industrial Commission obtain
the opinion of a neuro-ophthalmologist. Said specialist more
frequently evaluates patients with non-physiologic visual loss
No. 16AP-786 16
and would therefor be able to generate a more accurate
report.
{¶ 36} 21. The record contains a document captioned "Vocational Rehabilitation
Assessment Addendum." The document indicates that it was prepared by Amy Rumrill,
M.Ed, CRC, who is a "Vocational Specialist." Rumrill is employed by VocWorks. The
Rumrill addendum lists the dates of service as February 29 to March 10, 2016. In her
three-page report, Rumrill concludes:
If all other factors such as Ms. Patterson's motivation/lack of
interest to work, remain the same as in the 2014 report, Ms.
Patterson is not a feasible candidate for the Bureau of
Workers' Compensation Vocational Rehabilitation Program
at this time. Based on the 2015 medical/psychological
reports and the previous reports reviewed for the original
2014 employability assessment report, the majority of the
referral information indicate[s], that even though Ms.
Patterson is found to be capable of performing work
physically and psychologically, based on her lack of
motivation/interest (as indicated by Dr. Litwin on 7/23/15
and Dr. Rozel on 2/7/14), lack of past participation in
vocational/rehabilitation services, and other barriers noted
in the original report of 2014, it is the opinion of this
evaluator that it is unlikely she will return to competitive
employment as a result of vocational rehabilitation services.
{¶ 37} 22. Following a March 14, 2016 hearing, an SHO mailed an order on
April 12, 2016 that denied the fourth PTD application.
{¶ 38} 23. On April 29, 2016, relator requested commission reconsideration of
the SHO's order of March 14, 2016.
{¶ 39} 24. On June 2, 2016, the three-member commission mailed an
interlocutory order that identifies grounds for the potential exercise of continuing
jurisdiction.
{¶ 40} 25. Following a June 23, 2016 hearing, the three-member commission
mailed an order on September 9, 2016, that finds grounds for the exercise of continuing
jurisdiction and determines that relator voluntarily abandoned the workforce and, thus,
is ineligible for PTD compensation. The commission did not reach the merits of the
No. 16AP-786 17
PTD application. The commission's order vacates the SHO's order of March 14, 2016
(mailed April 12, 2016). The commission's order of June 23, 2016 explains:
It is the decision of the Commission to deny the Injured
Worker's IC-2 Application for Compensation for Permanent
Total Disability, filed 01/06/2015. The Commission finds the
Injured Worker is ineligible to receive permanent total
disability compensation for the reason her lack of effort to
pursue suitable employment since at least 06/23/2004, the
date the order was issued denying the first of her three prior
IC-2 Applications on file, demonstrating an abandonment of
the work force as of that date.
The Commission finds the first of the Injured Worker's three
prior IC-2 Applications, filed 01/02/2003, was denied by
order of the Staff Hearing Officer, issued 06/23/2004. In his
06/23/2004 order, the Staff Hearing Officer denied the
permanent total disability application for alternative
reasons, one of which was the Injured Worker was capable of
sedentary work, based on persuasive medical evidence on file
so indicating. The Staff Hearing Officer also found the
Injured Worker's strong vocational assets, i.e., her age of 47
at the time, her GED, and her training in cosmetology and
word processing, were sufficient for her to perform sustained
remunerative employment at the sedentary level. The
Commission finds the Injured Worker made no effort to
return to the work force subsequent to the issuance of the
06/23/2004 order, despite having the capacity to do so.
The Commission finds the Injured Worker's second IC-2
Application, filed 09/03/2004, was denied by order of the
Staff Hearing Officer, issued 05/19/2005. In his 05/19/2005
order, the Staff Hearing Officer found the persuasive medical
and vocational evidence on file supported a finding the
Injured Worker had the capacity to perform work at the light
level, in positions not requiring perfect visual acuity or a
complete field of vision and not requiring she be around
crowds or juveniles. The Staff Hearing Officer further found
the Injured Worker's high school education and additional
training in word processing were assets enabling her to
perform work as described. The Commission finds the
Injured Worker made no effort to return to the work force
subsequent to the issuance of the 05/19/2005 order, despite
her capacity to do so.
No. 16AP-786 18
The Commission finds the Injured Worker's third IC-2
Application, filed 02/09/2012, was denied by order of the
Staff Hearing Officer, issued 12/08/2012. In his 12/08/2012
order, the Staff Hearing Officer found the persuasive medical
evidence on file supported a finding the Injured Worker had
the capacity to perform sedentary and light work activity not
requiring use of the right hand above the level of her head, in
positions not requiring good vision in both eyes and in a
structured environment with low stress or a quiet
environment away from a lot of people, particularly young
people. The Staff Hearing Officer found the Injured Worker's
GED and additional training in cosmetology and word
processing were positive vocational factors, further noting to
date the Injured Worker had not attempted any vocational
rehabilitation services. The Commission finds the Injured
Worker made no job-search effort subsequent to the
issuance of the 12/08/2012 order to find employment
consistent with the claim-related restrictions identified in
the order, despite her capacity to do so.
The Commission finds the Injured Worker participated in a
vocational-rehabilitation assessment in February 2014,
which led to a finding the Injured Worker was not a feasible
candidate for vocational rehabilitation. Specifically, in her
vocational-assessment report filed 03/03/2014, Amy
Corrigan, M.Ed., CRC, concluded the Injured Worker was
not feasible for rehabilitation services, citing in part her lack
of motivation to return to work, with her past participation
in vocational/medical services demonstrating her tendency
to approach the subject reluctantly, at times being actively
resistant. In addition, Ms. Corrigan cited the Injured
Worker's inconsistent physical/mental demeanor and her
vague and/or unreasonable return-to-work objectives. When
the issue of the Injured Worker's feasibility for participation
in a vocational-rehabilitation plan came to hearing, the Staff
Hearing Officer, in her order issued 03/07/2014, found the
Injured Worker was not feasible for rehabilitation services,
echoing many of the findings in Ms. Corrigan's vocational-
assessment report, particularly with regard to motivation
issues and the reluctance to participate in rehabilitation the
Injured Worker had exhibited in the past.
In State ex rel. Black v. Indus. Comm. 137 Ohio St.3d 75,
2013-Ohio-4550, 997 N.E.2d 536, ¶ 14, the Court held "[a]
claimant's eligibility for permanent total disability
compensation may be affected if the claimant has voluntarily
No. 16AP-786 19
retired or abandoned the job market for reasons not related
to the industrial injury." (Emphasis added.) In State ex rel.
Kelsey Hayes Co. v. Grashel, 138 Ohio St.3d 297, 2013-Ohio-
4959, 6 N.E.3d 1128, the Court addressed the Injured
Worker's request for permanent total disability
compensation where the evidence demonstrated he had
stopped working in 2004 for reasons unrelated to the
allowed conditions. The Court found the Injured Worker to
be ineligible for permanent total disability compensation
because he "was not disabled by his allowed conditions when
he stopped working . . . . Thus, he voluntarily abandoned the
workforce at that time and eventually the entire job market."
Id. at ¶ 20. In so holding, the Court found the Injured
Worker was capable of working with restrictions at the time
he last worked in 2004.
As indicated above, the Commission finds since at least
06/23/2004, the Injured Worker has not sought to re-enter
the work force in a capacity consistent with her claim-related
functional limitations, nor has she exhibited motivation to
benefit from vocational-rehabilitation services since such
date. Therefore, consistent with Black and Kelsey Hayes, the
Commission finds the Injured Worker voluntarily
abandoned the work force at least as of 06/23/2004, thereby
precluding her eligibility for permanent total disability
compensation. Accordingly, the Commission denies the
Injured Worker's IC-2 Application filed 01/06/2015.
{¶ 41} 26. On November 17, 2016, relator, Leona Patterson, filed this mandamus
action.
Conclusions of Law:
{¶ 42} The main issue is whether the commission abused its discretion in
determining that relator voluntarily abandoned the workforce and is thus ineligible for
PTD compensation. According to relator, the commission failed to consider all the
allowed conditions, particularly the psychological conditions in the year 2000 claim,
when it accepted the report of Amy Corrigan in finding that relator lacks motivation to
return to work and is thus not feasible for vocational rehabilitation services. Relator
asserts that it was the allowed psychological conditions that caused her to fail to obtain
entrance into a vocational rehabilitation plan.
No. 16AP-786 20
{¶ 43} Finding that the commission did not abuse its discretion in determining
that relator has voluntarily abandoned the workforce and is thus ineligible for PTD
compensation, it is the magistrate's decision that this court deny relator's request for a
writ of mandamus. Moreover, the commission did not abuse its discretion in accepting
the Corrigan report or by failing to give due consideration to all the allowed conditions.
Basic Law─PTD─Workforce Abandonment
{¶ 44} Ohio Adm.Code 4121-3-34 provides the commission's rules for the
adjudication of PTD applications.
{¶ 45} Thereunder, Ohio Adm.Code 4121-3-34(D) provides guidelines for the
adjudication of PTD applications.
{¶ 46} Ohio Adm.Code 4121-3-34(D)(1)(d) currently provides:
If, after hearing, the adjudicator finds that the injured
worker voluntarily removed himself or herself from the work
force, the injured worker shall be found not to be
permanently and totally disabled. If evidence of voluntary
removal or retirement is brought into issue, the adjudicator
shall consider evidence that is submitted of the injured
worker's medical condition at or near the time of
removal/retirement.
{¶ 47} Paragraphs two and three of the syllabus of State ex rel. Baker Material
Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202 (1994), state:
An employee who retires prior to becoming permanently and
totally disabled is precluded from eligibility for permanent
total disability compensation only if the retirement is
voluntary and constitutes an abandonment of the entire job
market.
An employee who retires subsequent to becoming
permanently and totally disabled is not precluded from
eligibility for permanent total disability compensation
regardless of the nature or extent of the retirement.
{¶ 48} A failure to seek other work or pursue vocational rehabilitation after a
commission adjudication that a claimant is capable of sustained remunerative
employment can support a finding that, by her own inaction, the claimant has
voluntarily abandoned the workforce. State ex rel. Cook v. Indus. Comm., 10th Dist. No.
No. 16AP-786 21
15AP-1025, 2016-Ohio-8497; State ex rel. McKee v. Union Metal Corp., 10th Dist. No.
15AP-414, 2016-Ohio-1236.
{¶ 49} Relator cites to State ex rel. Johnson v. Indus. Comm., 40 Ohio
St.3d 339 (1988), State ex rel. Roy v. Indus. Comm., 74 Ohio St.3d 259 (1996), and State
ex rel. Cupp v. Indus. Comm., 58 Ohio St.3d 129 (1991), to support the proposition that
the commission must consider all allowed conditions in the industrial claim(s) when it
determines an application for PTD compensation. However, as more fully explained
below, the cited cases do not support relator's position that the commission abused its
discretion in finding relator voluntarily abandoned the workforce.
The Cited Cases
{¶ 50} In Johnson, the claimant, George W. Johnson, injured his lower back. The
claim was later amended to include "depression." Johnson's PTD application prompted
the commission to have him physically evaluated by Dr. Colquitt who opined that
Johnson was physically capable of sustained remunerative employment, if retrained.
The commission was also prompted to have Johnson examined psychiatrically by Dr.
Enrique Huerta, who diagnosed Johnson as severely depressed with a "very poor"
prognosis.
{¶ 51} Following a hearing, the commission issued an order finding that Johnson
is not permanently and totally disabled. The order stated that it was based particularly
on the report of Dr. Colquitt.
{¶ 52} In Johnson, the court observed that Dr. Colquitt only addressed Johnson's
physical capabilities. Moreover, the commission's order failed to include "depression"
among the enumerated allowed conditions. The court stated "we question whether the
commission considered all the allowed conditions in refusing to award permanent total
disability compensation." Johnson at 340. The Johnson court issued a limited writ of
mandamus ordering the commission to clarify whether it considered Johnson's
psychiatric condition.
{¶ 53} In Cupp, the claimant, James W. Cupp, was industrially injured in 1979.
His claim was initially allowed for "left leg, low back, right leg." Cupp at 129. In 1982,
the claim was additionally allowed.
No. 16AP-786 22
{¶ 54} In denying the PTD application, the commission issued an order stating
that the claim had been allowed for "left leg, low back, right leg." Id. The additional
conditions were not listed. In determining that Cupp was not permanently and totally
disabled, the commission stated in its order that its decision was based particularly on a
report from Dr. McCloud and consideration of Cupp's age, education, work history, and
the disability factors. Citing to the Johnson case, the court issued a limited writ
ordering the commission to clarify whether it considered the additionally allowed
conditions.
{¶ 55} In Roy, the claimant, William D. Roy, injured his shoulder and lower back.
{¶ 56} In 1989, Roy filed a PTD application. At that time, the industrial claim was
only allowed for his shoulder and lower back.
{¶ 57} On June 27, 1990, the commission heard Roy's PTD application but held it
in abeyance and referred claimant to the commission's rehabilitation division. On
August 7, 1990, Roy moved the commission for additional allowance of a psychiatric
condition.
{¶ 58} In early September 1991, the commission issued an order denying PTD
compensation. The order states reliance on various medical reports and rehabilitation
reports. The order found that Roy is not permanently and totally disabled.
{¶ 59} In late September 1991, Roy sought reconsideration of the commission's
order.
{¶ 60} On June 12, 1992, the commission additionally allowed the claim for "major
depressive disorder." Roy at 261. On April 13, 1993, reconsideration was denied.
{¶ 61} In granting a writ of mandamus, the Roy court explained:
Once the commission allowed the psychiatric condition prior
to the commission's conclusive denial of permanent total
disability compensation, the issue became one of additional
conditions, rather than one of additional evidence. Unlike
additional evidence, there is no precedent supporting the
denial of permanent total disability compensation absent
consideration of all allowed conditions. The commission,
therefore, erred in not granting reconsideration and
incorporating the condition into its deliberations.
Id. at 264.
No. 16AP-786 23
Analysis
{¶ 62} Significantly, relator's cited cases, i.e., Johnson, Cupp, and Roy all involved
commission adjudication of the PTD application on the merits. That is, in each case, the
commission determined that the claimant was not permanently and totally disabled and
was able to perform sustained remunerative employment.
{¶ 63} Here, the commission's determination that relator voluntarily abandoned
the workforce focused on the commission's prior adjudications of the first, second, and
third PTD applications filed respectively on January 2, 2003, September 3, 2004, and
February 9, 2012. In those three prior adjudications, there is no contention here that the
commission failed to consider all the allowed conditions of the claims. And those three
prior adjudications premised the determination rendered on the fourth application that
relator had failed to seek alternative employment following each of the three
adjudications indicating that relator can perform sustained remunerative employment.
Given the commission's analysis in determining that relator had voluntarily abandoned
the workforce as early as June 2004, it was unnecessary to determine relator's current
residual functional capacity. Ohio Adm.Code 4121-3-34(B)(4).
{¶ 64} It is important to observe that the commission's order of June 23, 2016,
does not determine relator's current residual functional capacity that would ordinarily
occur when a PTD application is decided on the merits. That is, the commission's
June 23, 2016 order does not determine the credibility of the medical evidence submitted
in support of or in response to the fourth application. Again, given the commission's
analysis which focused on the prior commission adjudications of the first, second, and
third PTD applications, it was unnecessary to determine relator's current residual
functional capacity. Had the commission decided to determine current residual
functional capacity, all the allowed conditions of the two industrial claims would need to
be considered in keeping with the current law as expressed in Johnson, Cupp, and Roy.
{¶ 65} Apparently, the commission felt compelled to address the February 2014
report of Amy Corrigan because relator argued that the report was evidence that relator
currently wants to re-enter the workforce but is prevented from doing so by the
commission's refusal to find her feasible for vocational rehabilitation. It was clearly
proper for the commission to address the Corrigan report and the SHO's order of
No. 16AP-786 24
March 3, 2014 that denied relator's entrance into a vocational rehabilitation plan based on
a finding that relator is not a feasible candidate. The SHO's order of March 3, 2014 and
the Corrigan report on which the SHO relied are clearly some evidence on which the
commission can and did rely to reject relator's assertion that she currently wants to re-
enter the workforce.
{¶ 66} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.
/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).