State ex rel. Brahler v. Kent State Univ. , 2013 Ohio 5299 ( 2013 )

[Cite as State ex rel. Brahler v. Kent State Univ., 2013-Ohio-5299.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Valerie Brahler,
:
Relator,
: No. 13AP-143
v.
: (REGULAR CALENDAR)
Kent State University and
Industrial Commission of :
Ohio,
Respondents. :
D E C I S I O N
Rendered on December 3, 2013
Zwick Law Offices Co., L.P.A., and Victoria Zwick Klapp,
for relator.
Amer Cunningham Co. LPA, and Thomas M. Saxer, for
respondent Kent State University.
Michael DeWine, Attorney General, and John R. Smart, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BROWN, J.
{¶ 1} Relator, Valerie Brahler ("claimant"), has filed this original action
requesting that this court issue a writ of mandamus ordering respondent, Industrial
Commission of Ohio ("commission"), to vacate its order that denied permanent total
disability ("PTD") compensation and to enter an order granting said compensation.
{¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
No. 13AP-143 2
appended decision, including findings of fact and conclusions of law, and recommended
that this court deny claimant's request for a writ of mandamus. Claimant has filed
objections to the magistrate's decision.
{¶ 3} Claimant first argues that the magistrate erred when she failed to address
her argument that the commission abused its discretion when it failed to address the
significance of her rehabilitation efforts following the denial of her first application for
PTD in light of State ex rel. Bryant v. Indus. Comm., 74 Ohio St. 3d 458 (1996), and State
ex rel. Cliff v. Auburndale Co., 111 Ohio St. 3d 490, 2006-Ohio-6111. Claimant argues that
this case presents a unique situation in light of the fact that the commission previously
issued a denial of PTD on November 30, 2010, in which it stated that claimant's failure to
fully explore or participate in vocational rehabilitation was a significant factor in denying
PTD. Claimant asserts that, after this initial denial, she participated in rehabilitation for
three months but was unable to continue such because of neck pain. Claimant concedes
that the commission is the exclusive evaluator of disability and is not bound to accept
vocational evidence, but argues that here the commission itself made rehabilitation
participation a primary concern in its previous denial order, so the commission should be
required to address her subsequent rehabilitation.
{¶ 4} The magistrate dedicated five pages of her decision addressing the
commission's failure to consider her attempts at vocational rehabilitation in its second
order. In rejecting claimant's argument, the magistrate cited State ex rel. Guthrie v.
Indus. Comm., 133 Ohio St. 3d 244, 2012-Ohio-4637, in which the Supreme Court of Ohio
held that the fact that the Staff Hearing Officer ("SHO") did not view the worker's
rehabilitation efforts favorably does not affect the validity of the order. The court in
Guthrie reasoned that the commission is exclusively responsible for interpreting the
vocational evidence, the rehabilitation division made both favorable and unfavorable
comments about the worker's participation, and the commission was permitted to accept
the unfavorable comments over the favorable ones. In the present case, the magistrate
found that, similar to Guthrie, the rehabilitation division made both positive and negative
comments concerning claimant's rehabilitation efforts, and the commission could accept
the negative comments as the ultimate interpretation of vocational evidence. The
magistrate also noted that relator did not attempt vocational rehabilitation from the time
No. 13AP-143 3
she stopped working in 2002 until her first application for PTD was denied in 2010, and
then she only participated in vocational rehabilitation for three months. We concur with
the magistrate's determinations. Claimant presents no authority for the proposition that
the commission is required to address rehabilitation efforts where the commission made
rehabilitation participation a concern in a prior denial order. Even under these
circumstances, it remains that the commission is the exclusive evaluator of vocational
evidence and may believe or disbelieve the vocation evidence submitted.
{¶ 5} With regard to claimant's reliance upon Bryant and Cliff, we find these
cases inapposite to the present case. In both cases, the commission issued inconsistent
orders. In Cliff, the commission denied the claimant temporary total disability benefits
because he had voluntarily left the workforce when he retired but then two years later
awarded the claimant PTD benefits while implicitly declaring that claimant involuntarily
left the workforce. In Bryant, the Supreme Court found an inconsistency between the
commission's actions and words, in that the commission cited the claimant's occupational
longevity as evidence that retraining is unimpeded by age, but several months earlier, the
commission refused to refer claimant to its own rehabilitation division because it felt that
claimant was too old. The court stated that claimant either was or was not too old for
effective retraining—he could not be both.
{¶ 6} In the present case, there is no conflict between the commission's January 7,
2011 order and its June 9, 2012 order. Both orders denied PTD compensation. The
commission found in the January 7, 2011 order that claimant's failure to participate in
vocational rehabilitation was a "significant" factor in denying PTD, but also denied the
claim based upon the medical and psychological evidence showing that claimant was not
permanently and totally disabled. In the June 9, 2012 order, the commission again found
that claimant was not permanently and totally disabled based upon the medical and
psychological evidence. Given such circumstances, we cannot find an inherent conflict like
those in Bryant and Cliff. For these reasons, we overrule claimant's first objection.
{¶ 7} Claimant next argues that the SHO's order of June 5, 2013 that denied PTD
compensation relied on Dr. Michael Murphy's original report of December 16, 2011 and
his addendum of May 14, 2012, but the commission had implicitly rejected both reports
when it previously granted her motion seeking additional psychological treatment, in
No. 13AP-143 4
violation of State ex rel. Zamora v. Indus. Comm., 45 Ohio St. 3d 17 (1989) (it is
inconsistent for the commission to reject a medical report at one level, for whatever
reason, and rely on it at another). However, we agree with the magistrate that State ex rel.
Kish v. Kroger Co., 135 Ohio St. 3d 451, 2013-Ohio-1931, provides a proper basis for
distinguishing the present case from those in Zamora. Based upon Kish, the magistrate
correctly found that, because Dr. Murphy's May 2012 and December 2011 reports were
prepared to address two different issues, the commission rejecting Dr. Murphy's opinion
with regard to additional counseling (as addressed in the May 2012 addendum) did not
prohibit the commission from relying upon his opinion with regard to PTD (as addressed
in the December 2011 report). Furthermore, we find claimant's attempt to distinguish
Kish on the basis that the addendum report in that case was not issued at the time of the
original decision—whereas, in the present case, both the original and addendum reports
were issued prior to the May 16, 2012 decision on additional treatment—does not alter the
applicability of the underlying rationale in Kish. For these reasons, claimant's second
objection is overruled.
{¶ 8} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of claimant's objections, we
overrule the objections and adopt the magistrate's findings of fact and conclusions of law.
Claimant's writ of mandamus is denied.
Objections overruled and writ of mandamus denied.
CONNOR and O'GRADY, JJ, concur.
___________________
[Cite as State ex rel. Brahler v. Kent State Univ., 2013-Ohio-5299.]
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, ex rel. :
Valerie Brahler,
: No. 13AP-143
Relator,
: (REGULAR CALENDAR)
v.
:
Kent State University and
Industrial Commission of :
Ohio,
Respondents. :
MAGISTRATE'S DECISION
Rendered on August 15, 2013
Zwick Law Offices Co., L.P.A., and Victoria Zwick Klapp,
for relator.
Amer Cunningham Co. LPA, and Thomas M. Saxer, for
respondent Kent State University.
Michael DeWine, Attorney General, and John R. Smart, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 9} Relator, Valerie Brahler, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied her application for permanent total
disability ("PTD") compensation and ordering the commission to find that she is entitled
to that compensation.
No. 13AP-143 6
Findings of Fact:
{¶ 10} 1. Relator sustained a work-related injury on February 20, 1984. At the
time, relator attended and was working two days a week for respondent Kent State
University.
{¶ 11} 2. Relator's workers' compensation claim has been allowed for the
following conditions:
Cervical sprain; prolonged depressive reaction; ganglion,
right wrist; aggravation of pre-existing cervical spinal
stenosis C5-C6.
{¶ 12} 3. After graduating from college in 1997, relator found employment in the
field of music.
{¶ 13} 4. Relator received periods of temporary total disability ("TTD")
compensation over the years and last worked in June 2002.
{¶ 14} 5. Relator did not participate in vocational rehabilitation between 2002 and
2009.
{¶ 15} 6. The stipulation of evidence is devoid of medical records from 2002
through 2009. The magistrate found two references to relator's medical condition during
this time period. In his February 23, 2012 report, Dr. Metz notes that relator had a
normal EMG/NCV study on May 19, 2002, and an MRI on September 19, 2007 revealed
broad central C5-C6 disc herniation impinging on the anterior aspect of the cervical cord
and degenerative disc disease at C6-C7.
{¶ 16} 7. In 2009, the commission referred relator for vocational rehabilitation
services; however, in a letter dated December 21, 2009, relator was notified that her
rehabilitation file was being closed because her treating physician, Mark J. Pellegrino,
M.D., indicated that she was not able to work because of ongoing pain.
{¶ 17} 8. Relator filed her first application for PTD compensation on May 3, 2010.
{¶ 18} 9. Relator's application for PTD compensation was heard before a staff
hearing officer ("SHO") on November 30, 2010 and was denied. The SHO relied on the
August 19, 2010 report of Kirby Flanagan, M.D. and the August 27, 2010 report of James
Lyall, Ph.D. Dr. Flanagan opined that relator's allowed physical conditions had reached
maximum medical improvement ("MMI"), assessed a 15 percent whole person
No. 13AP-143 7
impairment, and concluded that relator was capable of performing light-duty work
provided that she lift a maximum of 20 pounds at waist level and do no lifting or work
above shoulder level. Dr. Lyall opined that relator's allowed psychological condition had
reached MMI, assessed a 15 percent whole person impairment, and concluded that the
psychological condition was not work prohibitive. Dr. Lyall did indicate that relator
should avoid high stress work involving complex social contact.
{¶ 19} The SHO found that relator's age of 53 years was a neutral vocational factor.
The SHO noted that relator's college education and 4 years of voice lessons were positive
vocational factors and specifically noted that she had been able to use her college degree
in a number of jobs. The SHO also concluded that relator's employment history was a
positive vocational factor. The SHO noted that relator last worked in 2002 and did not
seek referral for vocational rehabilitation until late 2009. Thereafter, the SHO discussed
the records from relator's treating physician from that relevant time period, stating:
The file reflects the injured worker last worked in 2002 and
did not seek referral to vocational rehabilitation until late
2009. Work-related restrictions were given by the physician
of record, Mark Pellegrino, M.D., in a report dated
10/15/2009 indicating the injured worker was capable of
sitting for eight hours per eight-hour work day, standing and
walking for less than two hours per eight-hour work day,
occasionally bending and squatting, frequently lifting five
pounds and occasionally lifting up to twenty pounds,
frequently carrying ten pounds and occasionally carrying up
to thirty pounds, using her hands repetitively for simple
grasping and fine manipulation, and using her feet
repetitively for the operation of leg controls. Dr. Pellegrino
indicated on 10/15/2009 these restrictions were permanent.
It is significant to note these permanent restrictions given by
the physician of record on 10/15/2009 closely correspond to
the injured worker's residual functional capacity for light
work as found by Dr. Flanagan on 8/19/2010. The
restrictions imposed by Dr. Flanagan would also permit the
injured worker to engage in sedentary work activities.
The injured worker was found to be eligible for participation
in vocational rehabilitation but not feasible as Dr.
Pellegrino's 09/04/2009 treatment record and 11/02/2009
report, issued just seventeen days after Dr. Pellegrino
completed the form regarding the injured worker's
No. 13AP-143 8
permanent work-related restrictions, indicated respectively
the injured worker was unable to work in any capacity and
was not a candidate for vocational rehabilitation. Dr.
Pellegrino did not explain his vacillating opinions. The
vocational rehabilitation closure dated 12/21/2009 was not
appealed by the injured worker.
{¶ 20} The SHO concluded that relator was capable of performing light-duty work
within the restrictions of Dr. Flanagan and that her vocational factors were positive and
she was not entitled to an award of PTD compensation. The SHO concluded, stating:
The instant decision, which accepts the opinion of Dr.
Flanagan regarding the injured worker's residual functional
capacity, rejects the opinion of Dr. Pellegrino as stated in his
treatment records and reports dated 11/02/2009 and
01/08/2010. Accordingly, the medical evidence used to
determine the injured worker was not feasible for
participation in vocational rehabilitation is expressly
rejected.
Permanent total disability is a compensation "of last resort,
to be awarded only when all reasonable avenues of
accomplishing a return to sustained remunerative employ-
ment have failed." State, ex rel. Wilson v. Industrial
Commission (1997), 80 Ohio St. 3d 250, 253. The injured
worker's residual functional capacity for light work with
physical and psychological restrictions, middle age, college
degree and ability to learn, and varied work experience make
her a candidate for rehabilitation and re-entry into the
workforce. The failure to fully explore or participate in
vocational rehabilitation is a significant factor in denying
this benefit of last resort.
The evidence in file demonstrates the injured worker is
capable of performing light work with no lifting or work
above the shoulders and can perform work which is not high-
stress or involves complex social contact. The injured worker
is only fifty-three years of age and received a college degree
in 1997. The injured worker's educational and work histories
demonstrate an ability to learn and to use her college
education vocationally. The injured worker's vocational
factors demonstrate she is capable of work in both the
sedentary and light work levels beyond just entry-level
positions.
No. 13AP-143 9
Based on the above-listed physical capacities and non-
medical disability factors, the Staff Hearing Officer finds the
injured worker's disability is not total, and that the injured
worker is capable of engaging in sustained remunerative
employment, or being retrained to engage in sustained
remunerative employment. Therefore, the injured worker's
request for an award of permanent disability benefits is
denied.
{¶ 21} 10. After the commission denied her first application for PTD
compensation, relator's counsel wrote a letter to the Ohio Bureau of Workers'
Compensation ("BWC") on January 26, 2011, asking that she be referred for rehabilitation
services:
We represent Valerie Brahler in regards to her industrial
injury of February 20, 1984. Please be advised that her
permanent and total disability was denied based upon a
State report and the Staff Hearing Officer dated 11/30/10. It
is the opinion of the Staff Hearing Officer that the claimant
cannot engage in her prior occupation that she was involved
in at the time of her injury, but she can perform light duty
work and she needs to undergo rehabilitation services. We
therefore are referring her for rehabilitation services and
have contacted Mary Ann Rohrig to perform those services.
{¶ 22} 11. Dr. Pellegrino completed a C-140 indicating that relator could sit for
eight hours and stand and walk each for two hours provided that she have frequent
breaks. He opined that relator could occasionally bend and squat, rarely reach, and never
crawl or climb. He further opined that relator could frequently lift up to 5 pounds and
occasionally lift up to 20 pounds, but that she could not lift over 20 pounds. In terms of
carrying, Dr. Pellegrino opined that relator could frequently carry 10 pounds and
occasionally carry up to 25 pounds, but not more than 25 pounds. Relator could use both
her hands for simple grasping and fine manipulation, but not for pushing and pulling arm
controls. Further, he noted that relator could use both her feet for repetitive movements
of leg control provided for brief periods of time only.
{¶ 23} 12. Relator participated in vocational rehabilitation services with Goodwill
Industries for approximately three months, from February 28, 2011 through May 20,
2011. According to the weekly progress reports, relator did not progress well. Specifically,
excerpts from those reports indicate the following:
No. 13AP-143 10
[March 8, 2011:] Ms. Brahler was present two out of five
scheduled days including her intake on Monday[.] * * * Ms.
Brahler reported that she did not have any business casual
clothing[.] She was given a voucher to try and find some at
the Goodwill stores[.] Ms. Brahler also reported that she was
unsure how many hours she would be able to train in the
computer lab due to her stamina level[.] It was decided that
she would report daily, but for at least a two hour shift[.] Her
time would increase as she became more comfortable[.] Ms.
Brahler cooperated with all directions and was polite, but did
not always allow volley of conversation[.] Given the
opportunity, Ms. Brahler would often talk until she was cut
off[.] However, she was able to focus when given a computer
task such as the testing without difficulty[.]
[March 15, 2011:] Ms. Brahler was present four out of five
scheduled days[.] She was absent on 3/11 when she reported
that the weather was too bad for her to come to work[.]
While in the computer lab, Ms. Brahler watched videos on
how to operate a computer[.] She completed the GCF
LearnFree training in Basic Computer Skills, Email Skills
and Microsoft XP[.] Ms. Brahler reported that her stamina
limit has remained around two hours per day[.] Two of the
four days she was able to stay an extra fifteen minutes[.]
M[s]. Brahler had improved in her dress as she wore
business attire four out [of] her four days present[.] She is
cooperative and remains focused once she starts with the
training[.]
[March 22, 2011:] Her time in the lab ranged from 1.5 to 3.25
hours per day[.] She complains of being in constant pain[.]
While in the lab, Ms. Brahler continued to watch videos on
email skills, Microsoft XP and moved on to Word 2007[.]
Ms. Brahler reported that even though she scores well on her
tests she does not remember anything the next day and has
to watch the videos all over again which frustrates her[.] She
will often talk a great deal about her pain level to whoever is
around and does not allow volley of conversation[.]
[March 29, 2011] Her time in the lab ranged from 2 to 3
hours per day and increased her weekly time by fifteen
minutes[.] While in the lab, she watches GCF LearnFree
videos daily[.] It is often the same videos or tutorials[.] Ms.
Brahler stated that she does not remember instructions from
day to day[.] Ms. Brahler worked on a coping and filing
assignment with another participant but was sent home
because she was not completing any work[.] Ms. Brahler
No. 13AP-143 11
stated that she was in pain and was upset that she could not
keep up with the other participant[.] Ms. Brahler was also
introduced to Dragon Speaking Naturally so that she would
be able to control the computer without the use of her
hands[.] Ms. Brahler completed the training of Dragon but
did not make any effort to use the program afterwards but
instead continued to watch the videos on Word 2007[.]
[April 5, 2011:] Her time in the lab ranged from one hour and
fifteen minutes to three hours per day and her overall weekly
time decreased by two hours and fifteen minutes[.] Ms.
Brahler was given a three minute typing test which she
reported that she should be able to complete[.] However
after that three minutes, Ms. Brahler reported that she was
in a great amount of pain and had to leave after one hour and
fifteen minutes[.] The next day, she was able to stay in the
lab for one hour and forty-five minutes[.] While in the lab,
she watches GCF LearnFree videos daily[.] It is often the
same videos or tutorials[.] Ms. Brahler stated that she does
not remember instructions from day to day[.] Ms. Brahler
also worked on her second GCF LearnFree assignment[.] Ms.
Brahler did not make any attempt to use Dragon Naturally
speaking to help her with her computer work[.] She reported
that she felt that it was too much to learn at the same time
and would rather focus on learning basic computer skills and
Word 2007[.] On 3/31 Ms. Brahler and two other
participants were observed talking and not focusing on their
work[.] Ms. Haubert stated that they were talking about a
recent computer assignment as well as the status of their
programs[.] Ms. Brahler stated that she was upset because it
was reported that she talked about her pain level with
others[.]
[April 13, 2011:] She was late 4/04/11 because she reported
that she wore the wrong shoes for an office environment and
returned home to change them. Her time in the lab ranged
from three hours on 4/04/11 to a half an hour on 4/08/11.
Ms. Brahler reported that she usually rested on the weekends
so that she would have the mobility and stamina to try and
last the week. Ms. Brahler continued to watch videos of GCF
LearnFree and completed her second and third assignment
in Microsoft Word 2007. She received a certificate of
completion from GCF LearnFree for completing this course.
Ms. Brahler was then asked to try Dragon Speaking Naturally
again. She worked with this program on Thursday and
Friday but reported that the headphones were hurting her
ears and neck. She completed a short assignment using
No. 13AP-143 12
Dragon, but reported later that she used her hands to type it
out as well. She was reminded of her restrictions and how
Dragon was suppose[d] to accommodate for the use of her
hands.
[April 18, 2011:] Ms. Brahler's time in the lab this week
ranged from 1.50 hours to 2.25 hours. However Ms. Brahler
mentioned that she took several 10 minute to 15 minute
breaks to stretch and walk. Ms. Brahler worked through the
tutorial in Dragon Speaking Naturally and also used Dragon
to recreate short paragraphs and forms. Ms. Brahler reported
the headphones she needed to use hurt her neck but she
couldn’t understand why as they were very light. Ms. Brahler
also mentioned pain in her arms and back. While this
conversation was taking place this writer noticed that Ms.
Brahler was gesturing with her arms while talking. She was
asked if that was painful for her. She reported that she never
thought about it, but no, it was not. She added that while
gesturing she kept her arms to the side so that they were
supported.
[April 26, 2011:] Ms. Brahler was late on 4/22 when she
reported that she needed to take her car into the mechanic.
Ms. Brahler was also five minutes late on 4/20 but did not
offer an explanation. Ms. Brahler's shifts varied from 2 hours
to 2.50 hours. During this time, Ms. Brahler took 1-2 fifteen
minute breaks. While in the lab, Ms. Brahler practiced
working with Dragon. She went through a Word tutorial and
also learned some of the commands to direct and browse the
Internet. Ms. Brahler was friendly and cooperative with all
staff and co-workers. However she was reminded to speak
appropriately in an office setting as she complimented this
writer in an inappropriate way.
[May 3, 2011:] Her hours varied from 2.25 hours to 2.5 hours
daily with at least two ten minute breaks. While in the
computer lab, Ms. Brahler practiced using Dragon Naturally
Speaking both but using Microsoft Word and the Internet.
She was asked to complete one research assignment using
both Dragon and the Internet and was able to complete it by
sending the needed information to this writer's email. Ms.
Brahler works-slowly but her focus has improved since she
has been moved to the accommodation room where she can
use Dragon without disturbing others.
[May 10, 2011:] Ms. Brahler's shifts ranged from 1.75 hours
to 2.6 hours for a total of 10.50 hours this week. Ms. Brahler
No. 13AP-143 13
reported that her neck was very sore and because of this
arms were very shaky, painful and non-responsive, making it
difficult to concentrate. However, Ms. Brahler has made
progress with Dragon as she has been using it to improve her
Microsoft Word skills, complete research over the internet
and write emails. She sends this writer a daily email using
Dragon with little to no mistakes each day.
[May 17, 2011:] Her time in the lab ranged from 1.5 hours to
2.5 hours. Ms. Brahler increased her Dragon Naturally
Speaking skills by completing research on life skills such as
banking and shopping for groceries and prescription using
Dragon online. Ms. Brahler also learned more about using
Dragon with her email program. Ms. Brahler complained of
pain in her neck that radiates to her arms making it difficult
to type or move.
[May 26, 2011:] Ms. Brahler's time in the lab ranged from .5
hours to 2.25 hours. She reported that she took at least 1-2
ten minute breaks during this time. While in the lab, she
used Dragon to work on her email skills as well as
completing the Prove It! testing that was also given to her at
the beginning of her program. She worked on these tests for
the last four days of her program and was unable to finish
them due to reported pain and fatigue.
{¶ 24} 13. Ultimately, relator's rehabilitation file was closed because she did not
progress.
{¶ 25} 14. Relator filed her second application for PTD compensation on July 26,
2011. In support of her application, relator submitted two reports from Dr. Pellegrino,
dated June 6 and June 21, 2011 respectively. Dr. Pellegrino opined that: relator's
participation in vocational rehabilitation exacerbated her allowed cervical conditions,
caused her increased pain; she was not a viable candidate for rehabilitation; and that she
was totally and permanently disabled. Relator also submitted the June 8, 2011 report of
Suresh A. Patel, M.D. Dr. Patel opined that relator was permanently and totally disabled
as a result of her allowed psychological condition.
{¶ 26} 15. Relator was examined by Michael A. Murphy, Ph.D. In his
December 16, 2011 report, Dr. Murphy identified the medical records which he reviewed
and concluded that relator had a mild psychological impairment. Dr. Murphy conducted
No. 13AP-143 14
certain psychological testing, including the Millon Clinical Multiaxial Inventory-III and
specifically noted the following:
This patient's response style suggests a moderate tendency
toward self-deprecation and a consequent exaggeration of
current emotional problems. In interpreting the profile, the
clinician should be aware that the patient may have reported
more psychological symptoms than objectively exist.
***
Testing shows a strong "fake bad" response set in which Ms.
Brahler overly exaggerated and distorted her problems. This
limits the validity of the test findings as Ms. Brahler's true
level of problems/symptoms is likely to be less than what is
indicated in the following test results.
{¶ 27} Ultimately, Dr. Murphy concluded that relator had a mild psychological
impairment and that she could perform any work for which she was otherwise qualified.
{¶ 28} 16. Relator was also examined by Steven V. Van Auken, Ph.D. In his
February 7, 2012 report, Dr. Van Auken opined that: relator's allowed psychological
condition had reached MMI; found a moderate psychological impairment of 28 percent;
and relator's depressive symptoms would prevent her from succeeding in sustained
remunerative employment.
{¶ 29} 17. The commission referred relator to Karl V. Metz, M.D., for an
independent medical examination. In his February 23, 2012 report, Dr. Metz set out the
allowed conditions in relator's claim, identified the medical records which he reviewed,
provided his physical findings upon examination, and opined that relator's allowed
physical conditions had reached MMI and assessed a five percent whole person
impairment. Dr. Metz opined that relator could perform medium level work with no
lifting greater than 20 pounds on an occasional basis, as well as no ladder climbing and no
prolonged work at or above shoulder level.
{¶ 30} 18. Because relator also filed a motion seeking authorization for additional
psychological treatment, Dr. Murphy was asked to prepare an addendum. In his May 14,
2012 addendum, Dr. Murphy opined that relator's allowed psychological condition had
reached MMI and that, while psychotherapy should not be discontinued abruptly, he
recommended four to six sessions to prepare her for the termination of services.
No. 13AP-143 15
{¶ 31} 19. On May 16, 2012, an SHO granted relator's request for limited
psychotherapy and medication management with Dr. Patel.
{¶ 32} 20. Relator's application for PTD compensation was heard before an SHO
on June 5, 2012. The SHO relied on the medical report of Dr. Metz and concluded that
relator was capable of performing medium work activities with the additional restrictions
Dr. Metz provided. Further, the SHO relied on Dr. Murphy's report to find that relator's
impairment was mild and that she was capable of performing work activities.
{¶ 33} Thereafter, the SHO discussed the non-medical disability factors and found
her age of 54 years was a neutral factor, her education and her prior work history were
positive vocational factors. Specifically, in concluding that relator was capable of
performing some sustained remunerative employment, the SHO stated:
The Injured Worker is 54-years of age. The Injured Worker's
age is a neutral factor as many Employers prefer seasoned
workers with maturity and experience. Also, age alone is
never a total bar to employment.
The Injured Worker's education level is also a positive factor.
The Injured Worker graduated from Oakwood High School
in 1975 and testified she graduated from Kent State
University in 1997. Possession of a college degree is an asset
in the workforce as many prospective Employers are seeking
college graduates. Also, this accomplishment is evidence of
the Injured Worker's mental acumen to perform the basic
tasks associated with sedentary, light, and medium work
activity.
The Injured Worker also has additional training in music.
She took voice lessons from a private instructor for four
years. The Injured Worker reported that she has work
experience leading choirs in various churches.
Also, the Injured Worker reported that she can read, write,
and perform basic math equations and operate a computer.
These skills are useful in the performance of entry level
sedentary, light, and medium work activity.
The Injured Worker has a positive and varied employment
history, including skilled employment. She has worked as a
cashier, assembly line worker, switchboard operator, audio-
visual assistant, choir director, and director of music at a
church.
No. 13AP-143 16
The Injured Worker has worked a variety of jobs and has
demonstrated numerous temperaments, including: working
with money, working with the public, repetitive work,
performing work to close tolerances and standards, and
performing a variety of job duties.
Additionally, the Injured Worker has experience working in
the musical field. She report [sic] that she wrote mass and
special liturgies, directed multiple choirs, including an adult
choir, contemporary choir, and a children's choir. She used
her educational knowledge as she obtained her bachelor of
arts in music and applied this knowledge to her job duties as
a choir director and director of music.
The Injured Worker also reported that she supervised two
employees in her job as the director of music. The Injured
Worker's ability to direct and control others is a positive
factor favoring re-employment.
Given the Injured Worker's completion of college and past
skilled work with supervisory duties, the Staff Hearing
Officer concludes the Injured Worker's disability is not total.
Therefore, the Staff Hearing Officer concludes the Injured
Worker can perform medium work activity within the
recommendation of Drs. Metz and Murphy.
{¶ 34} 21. Relator filed a motion for reconsideration which the commission denied
finding that relator had failed to meet her burden of proving that sufficient grounds
existed to justify the exercise of continuing jurisdiction.
{¶ 35} 22. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 36} Relator makes two arguments here. First, relator contends that the
commission abused its discretion by relying on the medical reports of Dr. Murphy to find
that her allowed psychological condition only caused a mild impairment which was not
work prohibitive. Relator contends that the commission had implicitly rejected Dr.
Murphy's opinion when the commission granted her C-9 request for continued
psychological treatment. Relator also contends that the commission abused its discretion
by not addressing the fact that, despite her best effort, she was not able to successfully
complete vocational rehabilitation. Relator contends that her inability to complete
No. 13AP-143 17
vocational rehabilitation should have been considered as a factor favoring the granting of
her PTD award.
{¶ 37} For the reasons that follow, the magistrate finds that the commission did
not abuse its discretion when it relied on Dr. Murphy's psychological reports and the
commission did not abuse its discretion when it did not specifically view relator's
attempts at vocational rehabilitation as evidence that she was, in fact, permanently and
totally disabled.
{¶ 38} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St. 2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
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). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St. 3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St. 2d 165 (1981).
{¶ 39} The relevant inquiry in a determination of permanent total disability is
claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic
v. Indus. Comm., 69 Ohio St. 3d 693 (1994). Generally, in making this determination, the
commission must consider not only medical impairments but also the claimant's age,
education, work record and other relevant non-medical factors. State ex rel. Stephenson
v. Indus. Comm., 31 Ohio St. 3d 167 (1987). Thus, a claimant's medical capacity to work is
not dispositive if the claimant's non-medical factors foreclose employability. State ex rel.
Gay v. Mihm, 68 Ohio St. 3d 315 (1994). The commission must also specify in its order
what evidence has been relied upon and briefly explain the reasoning for its decision.
State ex rel. Noll v. Indus. Comm., 57 Ohio St. 3d 203 (1991).
{¶ 40} Relator's first argument is that the commission abused its discretion when it
relied on the reports of Dr. Murphy. Relator contends that because the commission
No. 13AP-143 18
granted her request for psychological treatment, the commission had implicitly rejected
Dr. Murphy's May 14, 2012 addendum report which had been prepared after his
December 16, 2011 examination and report wherein he opined that relator was entitled to
PTD compensation. In his original December 16, 2011 report, Dr. Murphy opined that
relator's psychological impairment was mild and not work prohibitive. In his May 14,
2012 addendum, Dr. Murphy was asked whether or not relator's request for
psychotherapy consisting of one visit every 2 weeks for 6 months and medication
management once every 12 weeks for 6 months was medically necessary. Dr. Murphy
specifically concluded that some treatment was necessary, but not to the extent requested.
Specifically, Dr. Murphy opined that psychiatric medication management should be
limited to two visits a year and that, while psychotherapy should not be discontinued
abruptly, he recommended four to six sessions to prepare the injured worker to terminate
services.
{¶ 41} When the request for treatment was heard before an SHO, the SHO relied
on the medical report of Dr. Patel and authorized limited psychotherapy with medication
management with Dr. Patel one time every 12 weeks for 6 months and individual
psychotherapy with Cathy Stone at a frequency of one time every 2 weeks for 6 months.
{¶ 42} The "implicit rejection" concept set out in State ex rel. Zamora v. Indus.
Comm., 45 Ohio St. 3d 17 (1989), applies where the commission makes a finding which is
necessarily premised on the rejection of a given doctor's conclusion. The court held that,
once the commission has done so, the commission cannot later revive that report as
evidence to support a later finding. In Zamora, the regional board had concluded that
Rosalio Zamora's claim should be additionally allowed for depression in the moderate
range, implicitly rejecting Dr. Kugut's report which stated that Zamora had a moderate
mental impairment of 40 to 50 percent, but that Zamora's depression preceded her 1963
injury and that the 1963 injury's contribution to her current depression was minimal, less
than 10 percent. However, the commission later denied Zamora's PTD award, expressly
relying on Dr. Kugut's report. The court held that Dr. Kugut's report could not constitute
some evidence against a finding of PTD because it would be inconsistent to permit the
commission to reject Dr. Kugut's report at one level for whatever reason, and then rely on
it at another level.
No. 13AP-143 19
{¶ 43} Relator asserts that the commission implicitly rejected both Dr. Murphy's
December 16, 2011 report and his May 14, 2012 addendum report when the commission
granted relator's motion seeking additional psychological treatment. For the reasons that
follow, the magistrate disagrees.
{¶ 44} The magistrate finds that this situation is similar to the situation found in
State ex rel. Kish v. Kroger Co., 135 Ohio St. 3d 451, 2013-Ohio-1931. Becky Kish
sustained a work-related injury during her employment with Kroger. In February 2009,
Kish was examined by Dr. David C. Randolph, to determine whether further treatment
was necessary and appropriate. In a report dated March 5, 2009, Dr. Randolph identified
and accepted the allowed conditions, noted Kish's current complaints and the medical
records which he reviewed, and provided his physical findings upon examination. Dr.
Randolph concluded that Kish required no further medical treatment. As a result, Kish
was notified that Kroger would no longer pay for her treatment or medications.
{¶ 45} Kish filed a motion asking the commission to authorize continuing
treatment and medications and, one week later, filed a motion for scheduled loss
compensation for the loss of use of her left arm. Kish submitted a report from Dr.
Douglas C. Gula, in support of both motions.
{¶ 46} In April 2009, a district hearing officer ("DHO") authorized Kish's current
treatment and medications based on the reports from Dr. Gula and another doctor.
{¶ 47} On June 21, 2009, Dr. Randolph prepared an addendum to his original
report in which he specifically addressed the alleged loss of Kish's left arm. According to
Dr. Randolph, there was no objective evidence to support Kish's claim and Dr. Gula's
opinion was invalid because he had merely relied on her self-reporting of pain and loss of
function and had not made any objective findings to support those claims.
{¶ 48} In August 2009, a DHO denied Kish's motion for compensation for the loss
of use of her left arm based on Dr. Randolph's June addendum. The DHO specifically
rejected Dr. Gula's opinion.
{¶ 49} Kish appealed and each doctor responded in writing to the DHO's decision.
Dr. Gula clarified that Kish's loss of use her left arm was based on the allowed condition of
fracture dislocation left elbow, with associated compartment syndrome, and, in October,
No. 13AP-143 20
Dr. Randolph repeated his opinion that Kish did not suffer a total loss of use of her left
arm and that Dr. Gula's opinion was not supported by objective evidence.
{¶ 50} Ultimately, an SHO denied the motion based on Dr. Randolph's June and
October addendum specifically noting that there were no objective abnormalities to
support a total loss of use.
{¶ 51} Kish filed a complaint for a writ of mandamus in this court; however, this
court denied her request finding that Dr. Randolph's reports constituted some evidence
upon which the commission could rely to support its decision denying her request for a
loss of use of her left arm.
{¶ 52} Kish appealed and the Supreme Court of Ohio upheld this court's decision.
Specifically, the court rejected Kish's argument that Dr. Randolph's reports could not be
considered as they had been implicitly rejected. The court stated:
As the court of appeals concluded, the commission did not
rely on Dr. Randolph's March 2009 report in its order
denying the loss-of-use motion but instead relied on his later
addenda, so there was no violation of Zamora. Furthermore,
although the commission had implicitly rejected Dr.
Randolph's conclusion regarding the continuation of medical
treatment, it did not reject the clinical findings from his
initial examination. His later addenda relied on those clinical
findings, but addressed a different issue—specifically, the
loss of use of the left arm. It was within the commission's
discretion to rely on those reports. State ex rel. Crocker v.
Indus. Comm., 111 Ohio St. 3d 202, 2006-Ohio-5483, 855
N.E.2d 848, ¶ 16 (Zamora does not mean that the
commission can never rely on a report from a doctor whose
opinion has been rejected. "What the commission cannot do
is accept the same doctor's opinion on one matter that it
previously rejected"). See also State ex rel. Value City Dept.
Stores v. Indus. Comm., 97 Ohio St. 3d 187, 2002-Ohio-5810,
777 N.E.2d 249, ¶ 22.
{¶ 53} Here, relator contends that, because the commission granted her request for
psychological counseling and medication as her treating physician requested, the
commission implicitly rejected Dr. Murphy's report. However, as noted previously, Dr.
Murphy essentially issued two reports. In his first report, dated December 16, 2011, Dr.
Murphy opined that relator's allowed psychological condition was mild and did not render
her permanently and totally disabled. In his second report, dated May 14, 2012, Dr.
No. 13AP-143 21
Murphy opined that the request for additional treatment should not be granted as
requested, but should be granted at a lesser rate. These reports were prepared for two
entirely different reasons: (1) to determine whether or not relator was permanently and
totally disabled due to the allowed psychological condition, and (2) to determine whether
the requested counseling and medication were medically necessary. By rejecting Dr.
Murphy's opinion with regard to counseling and treatment, the commission did not reject
his opinion as to whether or not the allowed psychological condition rendered relator
permanently and totally disabled. As such, just as in Kish, the principles of Zamora did
not apply here.
{¶ 54} Relator's second argument is that the commission abused its discretion by
not looking at her attempts at vocational rehabilitation and noting that, inasmuch as she
failed in those attempts, she should be awarded PTD compensation.
{¶ 55} Relator's second argument is that the commission should have viewed her
failed attempts at vocational rehabilitation as evidence that she was, in fact, permanently
and totally disabled. Relator relies on this court's decision in State ex rel. Ramsey v.
Indus. Comm., 10th Dist. No. 99AP-733 (Mar. 30, 2000). For the reasons that follow, the
magistrate finds that this court's decision in Ramsey does not apply here.
{¶ 56} Robert Ramsey was seriously injured in 1994. In 1996, Ramsey filed an
application for PTD compensation which was denied. Shortly thereafter, Ramsey
submitted to multiple evaluations performed by the commission's professional staff at the
J. Leonard Camera Rehabilitation Center. Ramsey participated in the rehabilitation
program through December 1997 at which time it was determined that he was an
extremely poor candidate for rehabilitation and his filed was closed.
{¶ 57} Ramsey filed a second application for PTD compensation which was denied.
The SHO relied on the report of Dr. Turner who concluded that Ramsey was capable of
returning to his long-term career as an automobile sales person.
{¶ 58} Ramsey filed a mandamus action here asking whether the absence of any
mention of the commission's rehabilitation report of record and the commission's order
was a violation of the principle originally set forth in State ex rel. Fultz v. Indus. Comm.,
69 Ohio St. 3d 327 1994), and whether the commission's non-medical analysis violated
Noll because the analysis did not attempt to reconcile the conclusion that Ramsey was
No. 13AP-143 22
capable of sustained remunerative employment with the commission's rehabilitation
reports of record.
{¶ 59} This court's magistrate found that the commission's order did not violate
the principle of Fultz and that the order complied with Noll. Specifically, the magistrate
noted that, because the commission does not have to list the evidence considered, the
presumption of regularity that attaches to commission proceedings gives rise to a second
presumption—that the commission indeed considered all the evidence before it. Because
the commission's order did not necessarily enumerate the evidence considered, the
magistrate found that there was no violation of Fultz.
{¶ 60} The magistrate also rejected Ramsey's second argument finding that the
commission was not required to explain why it chose not to rely on the rehabilitation
reports. The magistrate also indicated that the commission did not have a duty to address
rehabilitation efforts.
In rejecting the decision of its magistrate, this court stated:
The staff hearing officer who heard Mr. Ramsey's case did
not appear to give any weight to Mr. Ramsey's efforts at
rehabilitation. Instead, the staff hearing officer apparently
relied solely upon "the objective medical findings of an
unbiased examiner."
We do not believe that reeducation and retraining efforts can
only be used as a means to punish injured workers on those
occasions when a hearing officer feels that the injured
worker has failed to exercise his or her best efforts at
rehabilitation. The situation where an injured workers has
made serious efforts at rehabilitation but has not succeeded
should be considered as a factor in favor of granting PTD
compensation, especially where, as here, the Bureau of
Workers' Compensation's own reports demonstrated a
failure to be rehabilitated despite the injured worker's best
efforts. Since the record before us indicates that the staff
hearing officer did not give appropriate weight to Mr.
Ramsey's unsuccessful rehabilitation efforts and the reports
from the J. Leonard Camera Rehabilitation Center, a writ of
mandamus shall issue.
The order from the staff hearing officer reflects a related
flaw, the failure to consider vocational information available
in the file. We still believe that the better course of action
would be for the commission to list all the reports
No. 13AP-143 23
considered, not just the reports relied upon. Such listing of
reports would enable the courts to be assured that all the
reports were considered and would avoid the temptation a
hearing officer might feel to pick out only the reports of
commission specialists for review. Such a temptation would
be understandable, given the sheer volume of applications to
be considered. However, injured workers whose livelihood
depends upon the findings of the commission deserve a
thorough review, not just a quick review.
For us, State ex rel. Fultz v. Indus. Comm. (1994), 69 Ohio
St.3d 327, 631 N.E.2d 1057, was a step in the right direction.
Where reports in the file could be determinative, the
commission must reflect a review of those reports in the
order granting or denying PTD compensation. The order
denying PTD compensation for Mr. Ramsey does not reflect
consideration of the vocational reports, but seems to rely
almost completely on "the objective medical findings of an
unbiased examiner," as noted above. Thus, we find that
neither the spirit nor the letter of Fultz was honored here.
Ramsey.
{¶ 61} This court's decision in Ramsey has been limited. For example, in State ex
rel. Scaggs v. Indus. Comm., 10th Dist. No. 02AP-799, 2003-Ohio-1786, this court stated:
[R]elator cites State ex rel. Ramsey v. Indus. Comm.
(Mar. 30, 2000), Franklin App. No. 99AP-733; and State ex
rel. Burns v. Indus. Comm., Franklin App. No. 01AP-1036,
2002-Ohio-2804, in arguing that, where reports in the file
could be determinative, the commission's order granting or
denying permanent total disability compensation must
reflect a review of those reports. However, relator's argument
is valid only when the commission provides a list of all
evidence considered, and then omits reference to a report
that could have been determinative of the issue. In State ex
rel. Lovell v. Indus. Comm. (1996), 74 Ohio St. 3d 250, 252-
253, 658 N.E.2d 284, the Supreme Court of Ohio held that
the commission has no obligation to identify all of the
evidence considered, and when the commission does not
provide such a list, there is a presumption that the
commission considered all of the evidence before it. That
presumption is applicable here, because, as noted by the
magistrate, the commission did not list all of the evidence
considered. Therefore, the rationale discussed in Ramsey
and Burns does not apply. Nor did relator present any
evidence to rebut the presumption that the commission
No. 13AP-143 24
considered all of the relevant evidence, including the Kilcher
report.
Furthermore, because the commission is a vocational
evaluator with considerable expertise, it may form its own
independent opinion without regard to the opinions of
vocational experts, e.g., State ex rel. Jackson v. Indus.
Comm. (1997), 79 Ohio St. 3d 261. Therefore, the commission
did not need to address the report of Mr. Kilcher in reaching
its decision.
Id. at ¶ 7-8.
{¶ 62} More recently, the Supreme Court of Ohio upheld this court's decision in
State ex rel. Guthrie v. Indus. Comm., 133 Ohio St. 3d 244, 2012-Ohio-4637, ¶ 10-14,
wherein this court again distinguished Ramsey. Specifically, the court stated:
In her second proposition of law, Guthrie argues that the
SHO improperly refused to consider her rehabilitation
attempt as a factor in favor of PTD. Guthrie states that she
made serious attempts at rehabilitation over a five-year
period and that the SHO unfairly discounted those efforts.
She implies that the SHO denied PTD to punish her for
ignoring the rehabilitation division's advice. She criticizes
the SHO's suggestion that her rehabilitation efforts were
unsatisfactory and cites State ex rel. Ramsey v. Indus.
Comm. 10th Dist. No. 99AP-733, 2000 WL 329058 (Mar. 30,
2000), affirmed without opinion, 91 Ohio St. 3d 24, 740
N.E.2d 672 (2001), as support for the proposition that the
commission denied PTD punitively.
Ramsey, however, is inapposite. First and foremost,
according to the Ramsey court, the order denying PTD in
that case appeared to rely solely upon the medical evidence,
ignoring vocational information available in the file. The
court held that the SHO had abused his discretion by failing
to consider relevant vocational evidence. By contrast, the
SHO in the instant case considered all factors before denying
PTD. This court cannot second-guess her evaluation of the
evidence. State ex rel. George v. Indus. Comm., 130 Ohio
St.3d 405, 2011-Ohio-6036, 958 N.E.2d 948, ¶ 11 (the
commission is exclusively responsible for assessing the
weight and credibility of the evidence).
Second, even if Ramsey were not distinguishable for this
reason, the language relied upon by Guthrie does not avail
No. 13AP-143 25
her. The vocational evidence in Ramsey showed that the
claimant failed at rehabilitation, even though he did his best
to succeed. In issuing a limited writ ordering the commission
to consider that evidence, the court of appeals remarked that
failure at rehabilitation is not always a negative factor, “used
as a means to punish injured workers on those occasions
when a hearing officer feels that the injured worker has
failed to exercise his or her best efforts at rehabilitation.”
2000 WL 329058, *1. The court emphasized that a
claimant's good-faith, best-effort failure should be
considered as a positive factor in favor of granting PTD
compensation.
There is no basis in this case for imputing to the SHO a
desire to punish the claimant because she failed at
rehabilitation. The SHO considered all of the evidence. The
denial of PTD that followed was not “punishment”; it was the
natural consequence of Guthrie's failure to carry her burden
of proof. Only when a denial is issued against a claimant who
is incapable of sustained remunerative employment due to
allowed conditions or a combination of those conditions and
vocational factors can the denial be considered unjust and
possibly punitive.
The fact that the SHO did not view Guthrie's rehabilitation
efforts favorably does not affect the validity of the order. The
commission is exclusively responsible for interpreting the
vocational evidence before it. [State ex rel. Ellis v. McGraw
Edison Co., 66 Ohio St. 3d 92, 94, 609 N.E.2d 164 (1993)], 66
Ohio St. 3d at 94, 609 N.E.2d 164 (1993)]; [State ex rel.
Jackson v. Indus. Comm.] 79 Ohio St. 3d 266, 271, 680
N.E.2d 1233 (1233)]. Here, the rehabilitation division made
both favorable and unfavorable comments about Guthrie's
participation, and the commission was permitted to accept
the latter over the former. Thus, we find no abuse of
discretion.
(Footnote deleted.)
{¶ 63} In the present case, as noted in the findings of fact, relator stopped working
in 2002 and did not attempt vocational rehabilitation until after her first application for
PTD compensation was denied in 2010. Relator participated in vocational rehabilitation
for approximately three months and then filed her second application for PTD
compensation. By comparison, Ramsey had participated in vocational rehabilitation for
approximately one year. Further, as noted in the findings of fact, the reports from the
No. 13AP-143 26
rehabilitation division made both positive and negative comments concerning relator's
efforts and progress and there is no contemporaneous medical evidence concerning her
condition from 2002 through 2009 that would indicate that she had been unable to
participate. This magistrate cannot say that the same potential for error exists here as this
court determined existed in Ramsey. As such, the magistrate rejects relator's argument.
{¶ 64} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion in denying relator's application
for PTD compensation and this court should deny relator's request for a writ of
mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA BROOKS
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).