State ex rel. McCormick v. Indus. Comm. , 2017 Ohio 370 ( 2017 )

[Cite as State ex rel. McCormick v. Indus. Comm., 2017-Ohio-370.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jennifer McCormick, :
Relator, :
v. : No. 16AP-107
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Edwin Shaw Hospital, :
Respondents. :
D E C I S I O N
Rendered on January 31, 2017
Ziccarelli & Martello, and James P. Martello, for relator.
Michael DeWine, Attorney General, and Shaun P. Omen, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
TYACK, P.J.
{¶ 1} Jennifer McCormick filed this action in mandamus, seeking a writ to
compel the Industrial Commission of Ohio ("commission") to grant her an award of
permanent total disability compensation ("PTD").
{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
the pertinent evidence and filed briefs. The magistrate then issued a magistrate's
decision, appended hereto, which contains detailed findings of fact and conclusions of
law. The magistrate's decision contains a recommendation that we deny the request for a
writ of mandamus.
No. 16AP-107 2
{¶ 3} No party has filed objections to the magistrate's decision. The case now
comes before a judicial panel for review.
{¶ 4} McCormick was injured in 2003 while assisting a patient at Edwin Shaw
Hospital into bed. Her industrial claim has been allowed for lumbar strain/sprain;
aggravation of pre-existing degenerated disc disease at L4-5 and aggravation of pre-
existing anxiety disorder.
{¶ 5} McCormick drew temporary total disability compensation for awhile but
was ultimately found to have reached maximum medical improvement. She then filed an
application for PTD compensation.
{¶ 6} A staff hearing officer reviewed the conflicting reports about McCormick's
ability to engage in sustained remunerative employment and issued an order denying her
application for PTD compensation.
{¶ 7} This mandamus action followed.
{¶ 8} Our magistrate carefully analyzed the three issues presented on behalf of
McCormick and therefore recommended that we deny the request for a writ. We find no
error of law or fact in the magistrate's decision. We, therefore, adopt the findings of fact
and conclusions of law contained in the magistrate's decision. As a result, we deny the
request for a writ of mandamus.
Writ of mandamus denied.
KLATT and BRUNNER, JJ., concur.
No. 16AP-107 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jennifer McCormick, :
Relator, :
v. : No. 16AP-107
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Edwin Shaw Hospital, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on September 23, 2016
Ziccarelli & Martello, and James P. Martello, for relator.
Michael DeWine, Attorney General, and Shaun P. Omen, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 9} In this original action, relator, Jennifer McCormick, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate the November 16, 2015 order of its staff hearing officer ("SHO") that denies
relator's application for permanent total disability ("PTD") compensation, and to enter an
order granting the compensation.
No. 16AP-107 4
Findings of Fact:
{¶ 10} 1. On June 6, 2003, relator injured her lower back while employed as a
registered nurse for respondent, Edwin Shaw Hospital, a state-fund employer. The injury
occurred when relator was assisting a patient into a bed.
{¶ 11} 2. The industrial claim (No. 03-842706) is allowed for "lumbar
strain/sprain; aggravation of pre-existing degenerative disc disease at L4-5; aggravation
of pre-existing anxiety disorder." The claim is disallowed for "major depressive disorder,
single episode, moderate."
{¶ 12} 3. Temporary total disability ("TTD") compensation has been paid in the
claim.
{¶ 13} 4. On January 8, 2014, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), relator was examined by psychologist Douglas Waltman, Ph.D.
Dr. Waltman examined for the allowed psychological condition in the claim, i.e.,
aggravation of pre-existing anxiety disorder.
{¶ 14} 5. In his eight-page narrative report dated January 19, 2014, Dr. Waltman
states:
INDEPENDENT MEDICAL EVALUATION
The Claimant was informed that the information gathered
during this interview would be forwarded to the Ohio Bureau
of Workers' Compensation.
All relevant medical records were reviewed and taken into
consideration. Certain records were given particular
attention. These included: a psychological evaluation
conducted by Dr. Donald Weinstein on 9/13/2010 (with
subsequent addendum), progress notes and treatment
summary with her psychotherapist Dr. Richard Barnett, a
psychiatric evaluation [con]ducted by Dr. Alf Bergman MD
on 11/17/2013, clinical notes by her nurse practitioner Inder
Sharma MSN CNS, a psychological evaluation conducted by
Dr. Mark Querry Ph.D. on 3/8/2013, a psychological
evaluation conducted by Dr. Eugene O'Brien Ph.D. on
6/3/2012, and a psychological evaluation conducted by Dr.
James Lyall Ph.D. on 6/16/2011.
IDENTIFYING INFORMATION
No. 16AP-107 5
The Claimant is a 58-year-old, divorced, Caucasian woman
who lives with a male roommate. She has 3 grown children
who live independently.
HISTORY
The Claimant grew up in Akron Ohio and her parents
divorced when she was 5. After the divorce she was reared
primarily by her mother and only had occasional contact
with her father. Apart from the divorce she did not recall
suffering any other adverse childhood experiences. Her
mother was an alcoholic but to her knowledge there was no
family history of mental illness. However, in Dr. Weinstein's
evaluation on 9/13/2010 she indicated her mother suffered
with depression. Contrary to her report it appears this
claimant grew up in a highly unfavorable family environment
(divorced parents, alcoholic and depressed mother).
HIGHEST EDUCATION
The [Injured Worker] has an Associate's Degree in Nursing
from Summa St. Thomas School of Nursing.
***
MARITAL STATUS
The claimant was married and divorced twice. Although
living with a man she does not consider him a romantic
attachment.
WORK HISTORY
The claimant is not working at the present time and has not
earned any taxable income since about September, 2010. She
has filled a variety of occupations including nursing,
banking, retail, and as a food server. Her longest period of
employment was 4 years. She has been terminated from
nursing positions "a number of times." According to a
psychological evaluation conducted by Dr. Donald Weinstein
(9/13/2010) she was released from at least one of these
positions for insubordination. That same report indicated
other reasons she was fired from jobs including; tardiness
and abrasiveness with coworkers. At the time of that
assessment she did not indicate work-related problems due
to memory, concentration, mood, or anxiety. At the time of
her injury in 2003 she worked as a nurse at Edwin Shaw
Hospital. She had been working for them for approximately a
year before her injury. She did not return to that position
No. 16AP-107 6
after her injury but did find employment with other
employers.
***
HEALTH HISTORY
The [Injured Worker] continues to experience chronic back
pain. She experiences pain 2-3 times per week. Generally this
pain is of moderate intensity but can become severe.
In addition she has hypothyroidism. She had breast cancer in
2000 and it appears she made a full recovery from that
illness. She also had other work-related back injuries prior to
the injury of record in 2003. She remembers filing two BWC
claims in about the 1990's and in the 2000's.
Her current medications include: Prozac (60mgs) for
depression, Xanax (1mgs tid) for anxiety, Synthroid
(0.112mgs) for her thyroid, Neurontin (400mgs hs), for
nerve pain, Percocet (5mgs qid) for pain, and Ibuprofen
(600mgs, prn) for pain.
***
MENTAL STATUS EXAMINATION
The [Injured Worker] arrived on-time and was adequately
groomed and dressed. She was oriented and understood the
purpose of the evaluation. She cooperated fully with the
procedure. Her mood was flat and her expression of affect
was fairly flat as well. She ambulated without difficulty but
once had to get up from her chair because it was becoming
uncomfortable. Nevertheless, she did not show any outward
expressions of pain or engage in any pain posturing. The
[Injured Worker] has struggled with suicidal ideation in the
past but not currently. She said her concentration is "poor."
She stated this was a significant problem at her jobs and
contributed to her losing positions (in fact there is no clinical
evidence to support this). Her working memory appears
adequate. She remembers appointments and was able to give
details about what she had for breakfast. Based upon her
education she appears to have at least average intelligence.
Her abstract reasoning and fund of information are
adequate. She manages her own financial affairs suggesting
her judgment is adequate.
DAILY ACTIVITIES
No. 16AP-107 7
She takes Xanax for sleep and when she does her sleep is
adequate. However, her psychiatrist is attempting to cut back
on this medication and this is causing her more anxiety and
sleeping problems. She spends her time visiting her
daughter, domestic chores at home, and watch[es] TV in the
evening. She has regular social contact with other family
members and friends. She likes gardening and was able to do
this last summer. She is not involved in any social
organizations and does not attend worship services. "I have
no limitations" with regards to her physical abilities. She had
difficulty identifying ways her anxiety and depression
interfere with her daily functioning. With additional probing
she did admit that sometimes it is hard for her to "push"
herself to do things, like exercising.
***
IN RESPONSE TO THE QUESTIONS OF CONCERNS
IN THIS IME
Q1: Has the injured worker reached a treatment
plateau that is static or well stabilized at which you
can expect to fundamental, functional or
psychological change within reasonable medical
probability in spite of continuing medical or
rehabilitation procedures (maximum medical
improvement)? Include rationale for your decisions.
A1: Yes. At this point mental health services appear
supportive rather than rehabilitative based upon the
psychotherapist's progress notes. These notes indicate she
has made significant gains and cannot be expected to
improve further. That is because this claimant has a pre-
existing anxiety disorder superimposed upon a personality
disorder. This individual will feel acutely anxious as life
problems arise (much of this anxiety has a reality basis) and
cannot [be] considered tied to injury of record.
Q2: Can the injured worker return to his/her former
position of employment? If yes, are there any
restrictions or modifications?
A2: No, but not due to the injury of record. The claimant
does not feel confident in her ability to return safely to
nursing. She fears she will be fired again for problems with
concentration, completing paperwork, and taking too long to
perform tasks. The available clinical records does [sic] not
No. 16AP-107 8
support that concern though. While there is some evidence
of impaired concentration a clinical evaluation by a
neuropsychologist found no evidence of impaired
concentration. Furthermore, that assessment found evidence
Ms. McCormick may exaggerate this concern.
The [Injured Worker] tends to externalize blame for her
failures on the job. At one position she had a conflict with a
supervisor but she pinned responsibility for the problem on
the supervisor. Personality issues appear to be the primary
reason why she cannot return into the nursing field. Clinical
evidence indicates this [Injured Worker] had work
performance problems unrelated to her injury. In particular,
problems with tardiness, abrasiveness, and insubordination
kept her from maintaining employment. She cannot return
into nursing due to pre-existing personality problems, not
due to sequelae related to her injury. Because she cannot
take responsibility for her own character weaknesses she
attributes her failures to things she thinks are beyond her
control (e.g., problems with memory and concentration).
Q3: Please provide a summary of any functional
limitations solely due to the psychological
condition(s) in this claim(s). In other words, please
indicate the type of work the injured worker can
perform and supportive rationale for your opinion.
A3: As stated above in A2 this worker's limitations at this
point are primarily the result of pre-existing personality
weaknesses that would interfere with her work performance
in any work setting. This includes problems with work
tardiness, abrasiveness, and insubordination. These
problems probably pre-existed her injury and were probably
not exacerbated by her injury. Otherwise, there [is] no
evidence her allowed psychological condition would interfere
with her work performance at the present time.
***
Q7: If not MMI, when should IW be re-examined?
A7: Ms. McCormick has reached MMI and does not need re-
examination.
(Emphasis sic.)
No. 16AP-107 9
{¶ 15} 6. On January 23, 2014, citing Dr. Waltman's report, the bureau moved to
terminate TTD compensation.
{¶ 16} 7. Following a February 14, 2014 hearing, a district hearing officer ("DHO")
issued an order terminating TTD compensation based on the January 19, 2014 report of
Dr. Waltman.
{¶ 17} 8. Relator administratively appealed the DHO's order of February 14, 2014.
{¶ 18} 9. Following a March 26, 2014 hearing, an SHO issued an order affirming
the DHO's order of February 14, 2014. The SHO's order explains:
It is the order of the Staff Hearing Officer that the motion
filed by the Bureau of Workers' Compensation on
01/23/2014 is granted to the extent of this order.
It is the finding of the Staff Hearing Officer that this claim is
allowed for physical disorders as well as a psychological
disorder. The current temporary total disability
compensation being received by the Injured Worker is
predicated solely on the allowed psychological disorder. As
such, the findings made herein shall he limited to the same.
The Staff Hearing Officer finds, based on the 01/19/2014
report of Dr. Waltman, that the allowed psychological
disorder in this claim has reached maximum medical
improvement.
The Staff Hearing Officer orders that the Injured Worker's
temporary total disability compensation with respect to the
allowed psychological disorder in this claim is terminated
effective 02/14/2014, the date of the District Hearing
Officer's hearing.
The Staff Hearing Officer finds that any temporary total
disability compensation with respect to the allowed
psychological disorder paid subsequent to 02/14/2014 is an
overpayment and orders that the same be recouped pursuant
to Ohio Revised Code section 4123.511(K).
{¶ 19} 10. On April 28, 2015, at her own request, relator was examined by
psychologist Raymond D. Richetta, Ph.D. In his six-page narrative report, Dr. Richetta
opined:
No. 16AP-107 10
Ms. McCormick is far too agitated to work, secondary to the
allowed Aggravation of Pre-Existing Anxiety Disorder. She
cannot focus her attention sufficiently for even simple work
tasks. She has insomnia too severe to allow her to be at a
workplace on time. She would miss an unacceptable amount
of work. She is unable to tolerate people well enough to
relate to co-workers, supervisors, or the general public. The
evaluation finds Jennifer McCormick permanently and
totally disabled due to the allowed Aggravation of Pre-
Existing Anxiety Disorder alone.
{¶ 20} 11. On May 6, 2015, at her own request, relator was examined by Morgan
Oberle, M.D. Dr. Oberle reported:
The patient presents today with chronic, severe, lower back
pain, mostly left sided, with pain into her left anterior thigh.
Prolonged sitting or activity increase her pain. She manages
pain with exercise and stretching as tolerated. She has
constant swelling in her left lumbar spine and all of her
normal ADL's are painful to perform.
Exam: lumbar spine range of motion is poor, flexion to 40,
extension to 5. Lumbar spine is painful to palpation with
spasms. Left positive SLR Test noted. Hypoesthesia of the
left lower extremity noted. Muscle strength graded 4/5 for
the left lower extremity. Hamstrings are very tight.
It is our opinion that Ms. McCormick is unable to work in
any capacity. She continues to exhibit chronic, severe pain
symptoms and has positive objective findings consistent with
her allowed diagnosis. Her pain has not improved despite
numerous and extensive medical intervention.
This letter is to serve as our opinion that in our medical
opinion, Jennifer McCormick should be declared
permanently and totally disabled as a result of her injuries.
This opinion is based solely * * * on the allowed conditions
on the claim.
{¶ 21} 12. On May 29, 2015, relator filed an application for PTD compensation. In
support, relator submitted the April 28, 2015 report of Dr. Richetta and the May 6, 2015
report of Dr. Oberle.
{¶ 22} 13. On July 20, 2015, at the commission's request, relator was examined by
psychologist Joseph D. Perry, Ph.D. In his nine-page narrative report, Dr. Perry opined:
No. 16AP-107 11
It is the examiner's opinion that based on the assessment
results and all information available, Ms. McCormick is still
at Maximum Medical Improvement in regard to her
aggravation of pre-existing anxiety disorder condition.
***
The estimated Whole Person Impairment arising from her
allowed aggravation of pre-existing anxiety disorder
condition is estimated to be at a twenty-six (26%) level.
***
The attached Occupational Activity Assessment Form
indicates this examiner's opinion that Ms. McCormick's
impairments arising from her allowed aggravation of pre-
existing anxiety disorder condition would result in her not
being able to work.
(Emphasis sic.)
{¶ 23} 13. On July 20, 2015, Dr. Perry completed a form captioned "Occupational
Activity Assessment, Mental & Behavioral Examination." On the form, Dr. Perry
indicated by his mark "[t]his Injured Worker is incapable of work." In the space provided,
Dr. Perry wrote in his own hand:
It is this examiner's advisory opinion that the mental
limitations resulting from her allowed condition of
aggravation of pre-existing anxiety disorder as described on
pages 7 and 8 of the attached report would indicate that Ms.
McCormick is incapable of work.
{¶ 24} 14. On July 23, 2015, at the commission's request, relator was examined by
Richard J. Reichert, M.D. In his four-page narrative report dated July 29, 2015, Dr.
Reichert opines:
Based on the AMA Guides to the Evaluation of
Permanent Impairment, Fifth Edition, 2001, and
with reference to the Industrial Commission
Medical Examination Manual, this individual has
evidence for 5% of Whole Person Impairment. This
is based on assignment of DRE Lumbar Category
II. This individual has nonverifiable radicular
complaints without objective findings. The
No. 16AP-107 12
individual's sensory loss and symptoms of
radiculopathy are nonanatomical in nature and in
a nondermatomal distribution. Therefore the most
appropriate assignment is Lumbar Category II. It
is noted that this is based on the lumbar conditions
including both the lumbar sprain/strain and
aggravation of pre-existing degenerative disk
disease at L4-5.
(Emphasis sic.)
{¶ 25} 15. On July 28, 2015, Dr. Reichert completed a form captioned "Physical
Strength Rating." On the form, Dr. Reichert indicated by his mark that relator is capable
of "sedentary work." For further limitations, Dr. Reichert wrote in the space provided:
"Allow alternating between sit and standing position as tolerated."
{¶ 26} 16. Following a November 16, 2015 hearing, an SHO issued an order
denying the PTD application. The SHO's order explains:
The Hearing Officer finds that the Injured Worker's request
for a finding of permanent total disability status which was
filed on 05/29/2015, is denied.
The Hearing Officer finds that the Injured Worker has not
presented sufficient probative evidence to establish that she
is permanently and totally disabled based on the medical
documentation, and the lack of vocational rehabilitation
efforts in file.
This order is based on the medical documentation from
Douglas Waltman, Ph.D. dated 01/19/2014.
The Hearing Officer further finds that on 06/06/2003 the
Injured Worker indicates that she was observing a patient
trying to climb in the bed with the side rails up, she asked the
patient to stand so she could put the guard rail down, and
she hooked her right arm under the patient's arm and the
patient started to get up and then went down and the Injured
Worker was injured when she held onto the patient, trying
not to let her fall to the floor.
The Injured Worker has had no surgeries as a result of the
allowed conditions in this claim, has had approximately
$175,000 in total medical and indemnity and last received
No. 16AP-107 13
temporary total compensation on 02/14/2014. The Injured
Worker has received a 38% permanent partial disability.
The Hearing Officer finds that the Injured Worker is not to
be considered permanently and totally disabled based on the
physical examination from Richard Reichert, M.D., dated
07/29/2015, and the report pursuant to the psychological
conditions by Dr. Waltman.
Dr. Waltman in his report dated 01/19/2014, indicates that
based on his psychiatric examination, the Injured Worker
has a history of problems with anxiety and depression which
began prior to 2003. She admitted to Dr. Waltman that she
had occasional panic attacks prior to the injury upon which
this claim is predicated, and having panic attacks in her 20's.
Donald Weinstein, Ph.D.'s evaluation of 2010 confirms that
the Injured Worker's panic symptoms pre-existed the injury
and that she also had bouts of depression following one of
her two divorces. He also found the Injured Worker rates her
symptoms for monetary gain. She indicated to Dr. Waltman
that she gets hyper when she gets upset and indicated that
she kept getting fired from employment. The doctor goes on
to indicate that she sought medical help constantly because
of her chronic fatigue and was sad over her second divorce.
Dr. Waltman indicates that based on his review of an
evaluation conducted by Alf Bergman, M.D. on 11/17/2013,
he did not observe any type of difficulty with the Injured
Worker's concentration or memory. In addition a
psychological evaluation conducted by James Lyall, Ph.D.,
on 06/16/2011, indicated that it was his assessment as an
expert in cognitive functioning that he found no evidence of
impairments in concentration or memory. Dr. Waltman also
indicated that a[n] examination conducted by Eugene
O'[B]rien, M.D., in a report dated 06/03/2012, that the
Injured Worker had met the clinical criteria of generalized
anxiety disorder, but that said condition pre-existed her
injury upon which this claim is predicated. Dr. Waltman in
his evaluation indicates that it is his opinion that the Injured
Worker had reached maximum medical improvement based
on the fact that she has made significant gains and cannot be
expected to improve further. Based on the fact that the
Injured Worker had a pre-existing anxiety disorder
superimposed upon a personality disorder, Dr. Waltman,
asked if the Injured Worker can return to work Dr. Waltman
indicated "no, but not due to the injury of record. Claimant
does not feel confident in her ability to return safely to
No. 16AP-107 14
nursing. She feels she will be fired again for problems with
concentration. Completing paper work[,] and taking to[o]
long to perform tasks." In addition Dr. Waltman indicates
"because she cannot take responsibility for her own
character weaknesses she attributes her barriers to things
she thinks are beyond her control (ie.) problems with
memory and concentration."
The doctor also indicates that the Injured Worker is an
"individual with a pre-existing anxiety disorder who tends to
exaggerate the extent of her symptoms for secondary gain,
such as to receive disability benefits." In addition although
this claim is approximately 13 years old the Injured Worker
has not attempted any vocational rehabilitation in this
matter.
Dr. Reichert who indicated that he examined the Injured
Worker for the allowed physical conditions in this claim,
indicated that the Injured Worker had reached maximum
medical improvement for the allowed physical conditions in
this claim.
He indicated that the Injured Worker had a 5% whole person
impairment for the allowed physical condition and that the
Injured Worker was capable of working in a sedentary type
classification.
The Hearing Officer finds that based on the fact that Injured
Worker cannot be deemed permanently and totally disabled
based totally on the allowed physical and psychological
conditions, a discussion of the Injured Worker's non-medical
disability factors is in order.
The Hearing Officer finds that at this time the Injured
Worker is receiving social security disability benefits, as of
03/2011.
The Injured Worker's age is 60 which indicates closely
approaching advanced age, and is a negative factor in the
Injured Worker obtaining entry level positions.
The Injured Worker's education consists of going through
the Summa St. Thomas School of Nursing and graduating as
a registered nurse. The Hearing Officer finds that the Injured
Worker's education is a positive factor in that the Injured
Worker has gone through, as indicated, an RN course.
No. 16AP-107 15
The Hearing Officer finds that the Injured Worker's
occupations consisted of working as a nursing home RN,
working at a hospice center and also working as an RN case
manager.
The Injured Worker was a RN, used computers and as
indicated, was a supervisor of other RN's. She also
supervised six aides and two LPNs at a job that she did not
list the date for, and could not remember. The Injured
Worker's education and work experience are considered
positive factors in her obtaining entry level positions.
The Hearing Officer finds that based on the medical
documentation in file from Dr. Waltman, in a report dated
01/19/2014, analyzing the Injured Worker on the allowed
psychological conditions and the 07/29/2015 report of Dr.
Reichert, examining the Injured Worker for the allowed
physical conditions, that the Injured Worker has not
presented sufficient probative evidence to establish that she
is permanently and totally disabled and therefore her
application is denied.
As indicated based on the medical documentation in file, the
Injured Worker is not to be deemed permanently and totally
disabled.
{¶ 27} 17. On December 19, 2015, the three-member commission mailed an order
denying relator's request for reconsideration of the SHO's order of November 16, 2015.
{¶ 28} 18. On February 12, 2016, relator, Jennifer McCormick, filed this
mandamus action.
Conclusions of Law:
{¶ 29} Three issues are presented: (1) is the report of Dr. Waltman some evidence
on which the commission can rely in its adjudication of the PTD application when the
report was generated in response to the bureau's concern over relator's continued receipt
of TTD compensation; (2) did the commission abuse its discretion by failing to explain
why it did not rely on the reports of Drs. Perry, Oberle, and Richetta; (3) does the SHO's
order of November 16, 2015 comply with the command of Ohio Adm.Code 4121-3-
34(D)(3)(i) that "[t]he adjudicator shall consider whether the allowed psychiatric
No. 16AP-107 16
condition in combination with the allowed physical condition prevents the injured worker
from engaging in sustained remunerative employment?"
{¶ 30} The magistrate finds: (1) the report of Dr. Waltman is some evidence on
which the commission can rely; (2) the commission did not abuse its discretion in failing
to explain why it did not rely on the reports of Drs. Perry, Oberle, and Richetta; and (3)
the SHO's order of November 16, 2015 complies with Ohio Adm.Code 4121-3-34(D)(3)(i).
{¶ 31} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
First Issue
{¶ 32} State ex rel. Bray v. Hamilton Fixture Co., 10th Dist. No. 05AP-821,
2006-Ohio-4459, is dispositive.
{¶ 33} Sharon Bray sustained physical injuries on May 30, 1997 while
employed as a carpenter for Hamilton Fixture Company. Her industrial claim was
additionally allowed for a psychological disorder, i.e., "adjustment disorder with
depressed mood." Id. at ¶ 2.
{¶ 34} Bray received TTD compensation from the bureau. On August 20,
2001, at the bureau's request, Bray was examined by psychologist Chris H. Modrall, Ph.D.
In his report, Dr. Modrall opined that the allowed psychological condition had reached
maximum medical improvement ("MMI"). He also opined that Bray "could return to
work from a purely psychological standpoint." Bray at ¶ 24. Dr. Modrall advised that she
could return to work "on a staggered basis" where she would work "for a few hours the
first week, one-half a day the next week and then return full-time." Id. at ¶ 24.
{¶ 35} In September 2001, citing Dr. Modrall's report, the bureau moved to
terminate TTD compensation. Following an October 2001 hearing, a DHO terminated
TTD compensation based in part on Dr. Modrall's report.
{¶ 36} In August 2002, Bray filed an application for PTD compensation. In
support, Bray submitted a report from treating psychiatrist Thor Tangvald, M.D., who
opined that Bray should be "considered permanently and totally disabled from returning
to any type of employment." Id. at ¶ 26.
{¶ 37} In October 2002, at the commission's request, Bray was examined by
Ron M. Koppenhoefer, M.D., for the allowed physical conditions of the claim. In his
No. 16AP-107 17
narrative report, Dr. Koppenhoefer opined that Bray was physically "able to do
sedentary/light duty work activities." Id. at ¶ 27.
{¶ 38} In November 2002, at the commission's request, Bray was examined
by psychiatrist Donald L. Brown, M.D. In his narrative report, Dr. Brown opined that
Bray has "a Class III level of impairment. This is a moderate level of impairment." Id. at ¶
29. On the occupational activity assessment form, Dr. Brown indicated that Bray can
return to her former position of employment, and can perform any sustained
remunerative employment. Id. at ¶ 30.
{¶ 39} The commission requested an "employability assessment report"
from Howard L. Caston, Ph.D., a vocational expert. Id. at ¶ 32. In his report dated
December 20, 2002, Dr. Caston opined that Bray could return to employment. Id. at ¶ 33.
{¶ 40} Following a July 2003 hearing, an SHO issued an order denying
Bray's PTD application. The order states reliance on the reports of Drs. Modrall,
Koppenhoefer, and Caston.
{¶ 41} In August 2005, Bray filed in this court a mandamus action seeking
to vacate the commission's order and to have the commission enter an order granting the
PTD application.
{¶ 42} In that original action, Bray argued that the commission erred in
relying on Dr. Modrall's report in denying PTD compensation because it was generated by
the bureau's concern over Bray's continued entitlement to TTD compensation.
{¶ 43} In arguing that Dr. Modrall's report must be eliminated from
evidentiary consideration in the PTD determination, Bray relied on State ex rel. Kaska v.
Indus. Comm., 63 Ohio St. 3d 743 (1992). This court rejected Bray's argument that Kaska
compelled elimination of Dr. Modrall's report.
{¶ 44} Here, relator fails to cite or discuss this court's decision in Bray. However,
the commission relied on Bray in its brief. Relator did not file a reply brief to counter the
commission's argument that Bray is dispositive.
{¶ 45} Clearly, Bray is dispositive of this action.
{¶ 46} Here, as was the case in Bray, the report at issue was generated by the
bureau's concern over the injured worker's continued entitlement to TTD compensation.
That is, the report at issue was not prompted in either case by the filing of the PTD
No. 16AP-107 18
application. Thus, the situation here with respect to Dr. Waltman's report is similar to the
situation in Bray with respect to Dr. Modrall's report. Neither the report of Dr. Modrall
nor the report of Dr. Waltman were prepared in response to the PTD application. Just as
in Bray, however, the report at issue here is indeed some evidence on which the
commission can rely to deny the PTD application.
{¶ 47} It can be noted that Dr. Waltman's report, in effect, addresses residual
functional capacity, Ohio Adm.Code 4121-3-34(B)(4), with respect to the allowed
psychological condition. Residual functional capacity was at issue in the PTD
adjudication.
{¶ 48} In his report, Dr. Waltman opines that relator's work limitations are
primarily the result of non-allowed "personality weaknesses that would interfere with her
work performance in any work setting." Dr. Waltman concludes "there [is] no evidence
her allowed psychological condition would interfere with her work performance at the
present time."
{¶ 49} Clearly, based on the above analysis, Dr. Waltman's report does address the
residual functional capacity issue in the PTD determination, and it was appropriate for
the commission to rely on Dr. Waltman's report in the adjudication of the PTD
application.
Second Issue
{¶ 50} The second issue is whether the commission abused its discretion by failing
to explain why it did not rely on the reports of Drs. Perry, Oberle, and Richetta.
{¶ 51} In State ex rel. Bell v. Indus. Comm., 72 Ohio St. 3d 575 (1995), the Supreme
Court of Ohio succinctly set forth the law applicable to the second issue presented here.
In Bell, the injured worker brought a mandamus action challenging the commission's
denial of his PTD application. The Bell court states:
Claimant also suggests that, henceforth, all commission
orders be made to set forth the reasons for finding one report
more persuasive than another. Claimant's argument, as a
broad proposition, is weakened by State ex rel. Mitchell v.
Robbins & Myers, Inc. (1984), 6 Ohio St. 3d 481, 6 OBR 531,
453 N.E.2d 721, and Noll, supra. Noll requires only a brief
explanation of the commission's reasoning. Mitchell
instructs the commission to list in its orders the evidence on
No. 16AP-107 19
which it relied. Moreover, later decisions have stressed that a
reviewing court is not aided by a recitation of evidence that
was considered but not found persuasive. See, e.g., State ex
rel. DeMint v. Indus. Comm. (1990), 49 Ohio St. 3d 19, 550
N.E.2d 174. Logic dictates that if the identity of rejected
evidence is irrelevant, so is the reason for rejection.
Id. at 577-78.
{¶ 52} In State ex rel. Lovell v. Indus. Comm., 74 Ohio St. 3d 250 (1996), the
injured worker brought a mandamus action challenging the commission's denial of his
VSSR application. In the commission's order denying the VSSR application, the
commission failed to mention or address his deposition testimony. The Lovell court
states:
Because the deposition was not included in that list, claimant
argues that pursuant to State ex rel. Fultz v. Indus. Comm.
(1994), 69 Ohio St. 3d 327, 631 N.E.2d 1057, we must assume
that the deposition was overlooked. This is incorrect.
State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio
St.3d 481, 6 Ohio B. Rep. 531, 453 N.E.2d 721, directed the
commission to cite in its orders the evidence on which it
relied to reach its decision. Reiterating the concept of
reliance, State ex rel. DeMint v. Indus. Comm. (1990), 49
Ohio St. 3d 19, 20, 550 N.E.2d 174, 176, held:
"Mitchell mandates citation of only that evidence relied on. It
does not require enumeration of all evidence considered."
(Emphasis original.)
Therefore, because the commission does not have to list the
evidence considered, the presumption of regularity that
attaches to commission proceedings (State ex rel. Brady v.
Indus. Comm. [1990], 28 Ohio St. 3d 241, 28 Ohio B. Rep.
322, 503 N.E.2d 173) gives rise to a second presumption--
that the commission indeed considered all the evidence
before it. That presumption, however, is not irrebuttable as
Fultz demonstrates.
Id. at 252
{¶ 53} As earlier noted, at the commission's request, relator was examined by
psychologist Dr. Perry, who opined that relator is incapable of work.
No. 16AP-107 20
{¶ 54} As earlier noted, at relator's own request, she was examined by Dr. Oberle
who opined that relator "should be declared permanently and totally disabled as a result
of her injuries."
{¶ 55} As earlier noted, at relator's own request, she was examined by psychologist
Dr. Richetta, who opined that relator is "permanently and totally disabled due to the
allowed aggravation of Pre-Existing Anxiety Disorder alone."
{¶ 56} Obviously, the reports of Drs. Perry, Oberle, and Richetta were favorable to
relator's PTD application. Moreover, Dr. Perry was asked by the commission to examine
relator.
{¶ 57} As earlier noted, the SHO's order of November 16, 2015 relied exclusively on
the reports of Drs. Waltman and Reichert in determining residual functional capacity.
The order does not mention the reports of Drs. Perry, Oberle, or Richetta. Without
citation to authority, relator contends that the commission abused its discretion in failing
to address the reports of Drs. Perry, Oberle, and Richetta. As relator puts it, the
commission "abused its discretion by ignoring the report of its own doctor." (Relator's
Brief at 17.)
{¶ 58} There is no evidence in the record to show that the commission failed to
consider or ignored the report of its own doctor or, for that matter, that it failed to
consider the reports of Drs. Oberle and Richetta. The commission's order at issue is
entitled to the presumption of regularity explained by the court in Lovell.
{¶ 59} Accordingly, based on the above analysis, the magistrate concludes that the
commission did not abuse its discretion in failing to explain why it did not rely on the
reports of Drs. Perry, Oberle, or Richetta.
Third Issue
{¶ 60} The third issue is whether the SHO's order of November 16, 2015 complies
with Ohio Adm.Code 4121-3-34(D)(3)(i), which provides:
In claims in which a psychiatric condition has been allowed
and the injured worker retains the physical ability to engage
in some sustained remunerative employment, the
adjudicator shall consider whether the allowed psychiatric
condition in combination with the allowed physical condition
prevents the injured worker from engaging in sustained
remunerative employment.
No. 16AP-107 21
{¶ 61} In State ex rel. Guy v. Indus. Comm., 10th Dist. No. 08AP-711, 2009-Ohio-
2553, this court had occasion to interpret Ohio Adm.Code 4121-3-34(D)(3)(i). This court
stated:
In the end, relator's contentions invoke the formerly
required "combined effects" review that arose when the
claimant presented both physical and psychological
dimensions in a request for disability compensation. Under
such a review, typically a single doctor assessed a claimant's
ability in light of the combined effects of the allowed physical
and psychological conditions. Ohio Adm.Code 4121-3-
34(D)(3)(i) does not require a "combined effects" review, but
rather that the conditions be considered in combination.
Id. at ¶ 8.
{¶ 62} Although not cited by this court's decision in Guy, a historical discussion of
the combined-effect rule set forth in State ex rel. Anderson v. Indus. Comm., 62 Ohio
St.2d 166 (1980), can be found in State ex rel. Rouch v. Eagle Tool & Machine Co., 26
Ohio St. 3d 197 (1986).
{¶ 63} Clearly, as this court indicates in Guy, Ohio Adm.Code 4121-3-34(D)(3)(i),
cannot be viewed as a return to the Anderson combined-effect rule.
{¶ 64} Here, the Hearing Officer's order of November 16, 2015 indicates reliance
on the report of Dr. Waltman who examined solely for the allowed psychiatric or
psychological condition and the report of Dr. Reichert who examined only for the allowed
physical conditions of the claim. The SHO indicates that, based on Dr. Reichert's report
on the physical conditions, relator is "capable of working in a sedentary type
classification." Also, as indicated earlier, Dr. Waltman concluded in his report:
[T]his worker's limitations at this point are primarily the
result of pre-existing personality weaknesses that would
interfere with her work performance in any work setting.
This includes problems with work tardiness, abrasiveness,
and insubordination. These problems probably pre-existed
her injury and were probably not exacerbated by her injury.
Otherwise, there [is] no evidence her allowed psychological
condition would interfere with her work performance at the
present time.
No. 16AP-107 22
{¶ 65} The SHO's order indicates reliance on the reports of Drs. Waltman and
Reichert in determining residual functional capacity. The SHO determined that the
physical and psychiatric conditions of the claim permit sustained remunerative
employment.
{¶ 66} The SHO's order states:
The Hearing Officer finds that based on the fact that Injured
Worker cannot be deemed permanently and totally disabled
based totally on the allowed physical and psychological
conditions, a discussion of the Injured Worker's non-medical
disability factors is in order.
{¶ 67} Thus, the SHO's order of November 16, 2015 complies with Ohio Adm.Code
4121-3-34(D)(3)(i). Guy.
{¶ 68} 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).