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

[Cite as State ex rel. Bales v. Indus. Comm., 2017-Ohio-947.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Bonnie S. Stallard Bales,
:
Relator,
:
v. No. 15AP-418
:
Industrial Commission of Ohio and (REGULAR CALENDAR)
Mid Ohio Home Health Ltd. :
Caring Hearts of Mid-Ohio,
:
Respondents.
:
D E C I S I O N
Rendered on March 16, 2017
On brief: Tarkowsky & Piper Co., L.P.A., John Tarkowsky
and Gregory J. Tarkowsky, for relator.
On brief: Michael DeWine, Attorney General, and
LaTawnda N. Moore, for respondent, Industrial Commission
of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BRUNNER, J.
{¶ 1} Relator, Bonnie S. Stallard Bales ("Stallard Bales"), has filed this original
action for a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the
commission"), to vacate its order denying her permanent total disability ("PTD") benefits
and to grant her PTD benefits, or to return the claim to the commission for rehearing.
Stallard Bales also requests costs, attorney fees, and other relief as the court deems
proper.
{¶ 2} This Court referred the action to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended
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No. 15AP-418
decision, including findings of fact and conclusions of law, and recommended that this
Court deny Stallard Bales' request for a writ of mandamus.
{¶ 3} On December 3, 2015, Stallard Bales filed an objection to the magistrate's
decision. The commission filed its memorandum contra Stallard Bales' objection on
December 21, 2015.
{¶ 4} After reviewing the magistrate's decision, conducting an independent
review of the record pursuant to Civ.R. 53, and giving due consideration to Stallard Bales'
objection, we overrule Stallard Bales' objection and adopt the magistrate's findings of fact
and conclusions of law as our own.
I. FACTS AND PROCEDURAL HISTORY
{¶ 5} Stallard Bales sustained a work injury on October 13, 2008, when she lifted
a patient in her capacity as a home health aide while employed by Mid Ohio Home Health
Ltd. Caring Hearts of Mid-Ohio. Her workers' compensation claim was allowed for sprain
thoracic region; sprain lumbar region; sprain or strain right trapezius muscle; and
substantial aggravation of pre-existing degenerative disc disease at the L4-S1 levels. The
record indicates that Stallard Bales has not had any surgery for her allowed conditions
and she is not a candidate for surgery. She has been awarded a 12 percent PPD award.
Stallard Bales is currently 59 years old. She holds two Bachelor of Science degrees, one in
education and the other in nursing, and has worked as a teacher and as a registered nurse.
Stallard Bales last worked on January 9, 2009.
{¶ 6} On October 16, 2013, Stallard Bales underwent a functional capacity
evaluation ("FCE") performed by physical therapist Steven Rau to determine whether she
could return to her former position of employment as a home health nurse. Rau issued a
report dated October 16, 2013, in which he noted Stallard Bales' abilities and strengths at
that time. Rau also completed an FCE grid as part of his report. The FCE grid indicated
that during the course of a normal eight-hour work day, Stallard Bales could occasionally
(6-33 percent of the time) front carry 10 pounds, short carry 16 pounds, and right/left
carry 10 pounds. Rau's report also indicated that Stallard Bales could perform both
standing and sitting work, limiting standing to 10 continuous minutes and sitting to 20
continuous minutes.
{¶ 7} On September 26, 2014, Stallard Bales filed an application for total
disability for her allowed conditions. In support of her application, she filed the March 4,
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No. 15AP-418
2014 report of her treating physician, Michael R. Viau, M.D., who opined that Stallard
Bales was permanently totally disabled "in regards to all sustained remunerative
employment as a consequence of the allowed conditions in her claim only." (June 22,
2015 Stipulation of Evidence at 54.) Dr. Viau opined further that Stallard Bales was not a
surgical candidate. Stallard Bales also filed Dr. Viau's report of April 23, 2014, which
indicated his plan to request "a C-9 for vocational rehab to further verify whether or not
she is employable in any fashion." Id. at 55.
{¶ 8} Stallard Bales also submitted the August 5, 2014 vocational report by
Amy L. Corrigan, M.Ed. CRC. Corrigan noted referral information from Richard Ray,
M.D., who opined that Stallard Bales had not reached maximum medical improvement
("MMI"). Corrigan also noted the FCE completed by Rau. Corrigan's report noted that
Stallard Bales had skills that would transfer to sedentary employment and identified
approximately 20 jobs within Stallard Bales' abilities. Corrigan's report listed barriers
and assets to Stallard Bales' employment. No individualized rehabilitation plan was
written, because the comprehensive vocational evaluation indicated that vocational
services were not a feasible option for Stallard Bales; her vocational rehabilitation case file
was thus closed. However, nothing in Corrigan's report indicated that Stallard Bales
lacked the ability to be retrained for appropriate sedentary work.
{¶ 9} On November 19, 2014, Jon A. Elias, M.D., examined Stallard Bales. In a
December 3, 2014 medical report, Dr. Elias identified Stallard Bales' allowed conditions
and noted the history of her claim and her self-reported complaints reaching the following
conclusions:
1. If you believe the injured worker is still at MMI, * * *
provide the estimated percentage of whole person impairment
arising from each allowed condition. * * * If there is no
impairment for an allowed condition, indicate zero percent.
In my opinion, the claimant remains at maximum medical
improvement for the allowed conditions in this claim.
In regards to the diagnosis of sprain or strain right trapezius
muscle, there is no evidence of impairment from this
condition at the time of this examination, no abnormalities
were found with no spasm and no pain on palpation and no
guarding. Therefore, this would be 0% whole person
impairment.
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Concerning sprain thoracic region, * * * her impairment is a
DRE Category I for 0% whole person impairment.
Concerning the diagnosis of sprain lumbar region, substantial
aggravation of preexisting degenerative disc disease at L4-S1
level, * * * this was found to be a DRE Category II and an 8%
whole person impairment is awarded.
Using the American Medical Association's Guides to the
Evaluation of Permanent Impairment, Fifth Edition, the
entire whole person impairment awarded for the allowed
condition is 8%.
2. If you believe the injured worker is still at MMI, complete the
enclosed Physical Strength Rating. In your narrative report,
provide a discussion setting forth physical limitations
resulting from the allowed condition(s).
I believe [Stallard Bales] can perform sedentary type of work.
Her physical examination findings, as well as the prior
objective diagnostic findings indicate a low back condition
that should allow a minimum of sedentary work. The fact that
she is on medications further makes me feel that sedentary
work should be the only work that she be performing at this
time. I would give no other limitations.
Id. at 82-83.
{¶ 10} On March 2, 2015, a Staff Hearing Officer ("SHO") conducted a hearing on
Stallard Bales' PTD application. The SHO denied Stallard Bales' request for PTD benefits
in an order dated March 10, 2015. The SHO's decision was based on Dr. Elias' medical
report and the SHO's findings that Stallard Bales' educational qualifications and other
characteristics were positive factors to re-employment:
Based on the report of Dr. Elias, which is found persuasive,
the [SHO] finds that [Stallard Bales] retains the physical
functional capacity to perform sedentary work. When
[Stallard Bales'] level of injury-related medical impairment is
considered in conjunction with her non-medical disability
factors, the [SHO] finds [Stallard Bales] has the capacity to
perform sustained remunerative employment of a sedentary
nature.
The [SHO] finds that [Stallard Bales'] current age of 57 is
considered a neutral factor to re-employment, i.e., is not
considered either positively or negatively. [Stallard Bales']
education is a positive factor to re-employment. The [SHO]
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No. 15AP-418
notes that [Stallard Bales] has a Bachelor of Science degree in
Education. Following attainment of that degree, [Stallard
Bales] went on to participate in an accelerated nursing
program in which she obtained her Bachelor of Science in
Nursing degree. Per the information contained in the claim
file, [Stallard Bales] graduated second in her class in the
accelerated nursing program. The [SHO] finds that a college
degree implies an above-average level of intelligence that
would facilitate the acquisition of new skills that are
conducive to sedentary work. It also suggests a measure of
commitment, hard work, and discipline that prospective
employers value. [Stallard Bales] had a vocational evaluation
performed by Melessa Hunt, Ph.D. dated 01/05/2015.
Although the [SHO] is not persuaded by the conclusion of Dr.
Hunt that [Stallard Bales] is permanently and totally disabled
from all sustained remunerative employment, the [SHO] does
note that Dr. Hunt performed IQ testing. Dr. Hunt noted that
[Stallard Bales] scored in the upper range of high average
intellectual ability and Dr. Hunt noted that [Stallard Bales']
level of cognitive ability is a vocational strength, posing no
significant barrier to employment. The [SHO] notes that
[Stallard Bales'] past work history has involved work as a
waitress, substitute teacher, and registered nurse.
Id. at 92.
{¶ 11} The SHO order also noted the limited aspect of the FCE performed by
physical therapist Steven Rau, stating in pertinent part as follows:
The last position performed by [Stallard Bales] was that of a
registered nurse doing home health care. The [SHO]
acknowledges that this job cannot be performed due to
[Stallard Bales'] limitation of sedentary work. The [SHO]
notes [Stallard Bales] had a [FCE] performed by Steven Rau,
Physical Therapist, on 10/16/2013. The conclusion of
Therapist Rau in that report was that [Stallard Bales] could
not perform her former position of employment as a home
health registered nurse. Given [Stallard Bales'] neutral age
factor, as well as her high level of intelligence, and her proven
ability to learn as noted by her high school diploma, and two
separate bachelor degrees, the [SHO] finds that [Stallard
Bales] would have the ability to perform sedentary work as
[Stallard Bales] has the intellectual ability to be retrained.
Id.
{¶ 12} Stallard Bales filed a request for reconsideration with the commission on
March 20, 2015. The commission denied her request by order mailed April 4, 2015.
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No. 15AP-418
Stallard Bales then filed the instant complaint in mandamus on April 17, 2015. The
magistrate's decision was rendered on November 24, 2015, and thereby, the magistrate
recommended that this Court deny Stallard Bales' request for a writ of mandamus.
II. OBJECTION TO THE MAGISTRATE'S DECISION
{¶ 13} Stallard Bales presents the following objection to the magistrate's decision:
THE MAGISTRATE ERRED IN CONCLUDING THERAPIST
RAU'S REPORT DID NOT CONTAIN RESTRICTIONS
INCONSISTENT WITH THE DEFINITION OF SEDENTARY
EMPLOYMENT.
III. LAW AND DISCUSSION
{¶ 14} "Mandamus is an extraordinary writ that must be granted with caution."
State ex rel. Liberty Mills, Inc., v. Locker, 22 Ohio St. 3d 102 (1986). To be entitled to
relief in mandamus, Stallard Bales must establish (1) that she a clear legal right to the
relief prayed for, (2) that the commission is under a clear legal duty to perform the act
requested, and (3) that she has no plain and adequate remedy in the ordinary course of
law. State ex rel. Berger v. McMonagle, 6 Ohio St. 3d 28 (1983). To do this, Stallard
Bales must show that the commission abused its discretion "in this context, abuse of
discretion has been repeatedly defined as a showing that the commission's decision was
rendered without some evidence to support it." State ex rel. Burley v. Coil Packing, Inc.,
31 Ohio St. 3d 18, 20 (1987).
{¶ 15} This Court may not determine that the commission abused its discretion
when there is some evidence in the record to support the commission's finding. State ex.
rel. Miller v. Indus. Comm., 10th Dist. No. 13AP-418, 2014-Ohio-1742, citing State ex rel.
Rouch v. Eagle Tool & Mach. Co., 26 Ohio St. 3d 197, 198 (1986). The some evidence
standard "reflects the established principle that the commission is in the best position to
determine the weight and credibility of the evidence and disputed facts." Id., citing State
ex rel. Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing
State ex rel. Pavis v. Gen. Motors Corp., B.O.C. Group, 65 Ohio St. 3d 30, 33 (1992).
{¶ 16} Stallard Bales contends that the magistrate erred by finding that it was
within the commission's discretion to determine if Stallard Bales was capable of sedentary
employment based on the listed restrictions set forth in Rau's FCE report of October 16,
2013. Stallard Bales asserts that the commission relied on Rau's FCE in determining that
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No. 15AP-418
Stallard Bales was incapable of returning to her former position of employment. Stallard
Bales argues that Rau's findings that she had a sitting tolerance of 20 continuous minutes
and a standing tolerance of 10 continuous minutes indicate that she is incapable of
performing sedentary work as defined in Ohio Adm.Code 4121-3-34. Stallard Bales
argues, "the Magistrate erred in finding that the Commission had the discretion to
determine that [Stallard Bales] was not PTD, when the Commission relied upon a report
which unequivocally contains restrictions inconsistent with the definition of sedentary
employment." (Dec. 3, 2015 Stallard Bales Objs. to Mag.'s Decision at 5.)
{¶ 17} Ohio Adm.Code 4121-3-34(B)(2)(a) defines sedentary work as follows:
"Sedentary work" means exerting up to ten pounds of force
occasionally (occasionally: activity or condition exists up to
one-third of the time) and/or a negligible amount of force
frequently (frequently: activity or condition exists from one-
third to two-thirds of the time) to lift, carry, push, pull, or
otherwise move objects. Sedentary work involves sitting most
of the time, but may involve walking or standing for brief
periods of time. Jobs are sedentary if walking and standing
are required only occasionally and all other sedentary criteria
are met.
{¶ 18} The magistrate focused on the relevant inquiry of a PTD determination as
being whether a claimant has the ability to do any sustained remunerative employment.
State ex rel. Domjancic v. Indus. Comm., 69 Ohio St. 3d 693 (1994):
The crux of [Stallard Bales'] argument is that, according to the
FCE performed by Therapist Rau, she is not capable of
performing a full range of sedentary employment. As such
[Stallard Bales] asserts that the commission abused its
discretion when it found that she was not permanently and
totally disabled and was able to perform sedentary work.
[Stallard Bales] asserts that, inasmuch as, according to the
FCE, she is only able to sit for 20 continuous minutes, as a
matter of law, her restrictions do not place her in the
sedentary category.
(App'x at ¶ 43.) In reliance on Domjancic, this Court has held that "[a]n individual can
engage in sustained remunerative employment if they [sic] can perform sedentary work."
State ex rel. Miller at ¶ 10.
{¶ 19} The magistrate noted that Stallard Bales cited State ex rel. Libecap v. Indus.
Comm., 10th Dist. No. 96APD01-29 (Sept. 5, 1996); affirmed 83 Ohio St. 3d 178, in
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No. 15AP-418
support of her argument. The magistrate reviewed the Libecap holding and discussed
subsequent decisions of the Supreme Court of Ohio that limit Libecap's application under
similar circumstances where a claimant argued that the commission abused its discretion
in denying PTD:
In the time since this court issued its decision in Libecap, the
Ohio Supreme Court has released other decisions which affect
this court's treatment of [Stallard Bales'] allegation that the
commission abused its discretion. In State ex rel. Toth v.
Indus. Comm., 80 Ohio St. 3d 360 (1997), the Supreme Court
considered whether or not part-time work constituted
sustained remunerative employment for purposes of PTD
compensation and concluded that it did. In State ex rel.
DeSalvo v. May Co., 88 Ohio St. 3d 231 (2000), the court
indicated that, where a claimant is capable of working more
than four hours per day by combining their abilities to sit,
stand and walk, the commission may find that the worker is
capable of sustained remunerative employment. Based upon
these cases, certain principles emerge. First, sustained
remunerative employment includes part-time work. Second,
where a claimant can perform a work activity but only for a
very limited amount of time (such as less than three or four
hours per day), the commission may conclude that the
claimant is permanently and totally disabled. However,
where the claimant is capable of working more than four
hours per day by combining their abilities to sit, stand and
walk, the commission may find that the worker is capable of
sustained remunerative employment.
In the present case, the commission relied on the
medical report of Dr. Elias who opined [Stallard Bales] could
perform sedentary work. Contrary to [Stallard Bales']
assertions, Dr. Elias never limited her to 30 minutes of
continuous sitting and 20 minutes of continuous standing.
Instead, Dr. Elias noted that relator "self-reported" these
restrictions. As such, Dr. Elias' report does not even contain a
Libecap-type contradiction. Further, even if Therapist Rau
was correct in limiting [Stallard Bales'] ability to continually
sit and stand, the case law which followed Libecap, finding
that part-time work constitutes sustained remunerative
employment, gives the commission the discretion to
determine that relator was not permanently and totally
disabled.
(App'x at ¶ 46-47.)
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No. 15AP-418
{¶ 20} The record indicates that the commission relied on Dr. Elias' medical
report, not on Rau's FCE, in determining that Stallard Bales is capable of performing
sustained remunerative employment at the sedentary level. The only reference the
commission made to Rau's report was the SHO's acknowledgement that Stallard Bales
had an FCE performed by Rau, who had concluded in his report only that Stallard Bales
could not perform her former position of employment as a home health registered nurse.
{¶ 21} In the context of workers' compensation claims, Ohio Adm.Code 4121-3-
34(C)(1) provides:
Each application for permanent total disability shall identify,
if already on file, or be accompanied by medical evidence from
a physician, or a psychologist or a psychiatric specialist in a
claim that has been allowed for a psychiatric or psychological
condition, that supports an application for permanent total
disability compensation. * * * The medical evidence used to
support an application for permanent total disability
compensation is to provide an opinion that addresses the
injured worker's physical and/or mental limitations resulting
from the allowed conditions in the claim(s). Medical evidence
which provides an opinion addressing such limitations, but
which also contains a conclusion as to whether an injured
worker is permanently and totally disabled, may be
considered by a hearing officer. A vocational expert's opinion,
by itself, is insufficient to support an application for
permanent total disability compensation.
{¶ 22} Stallard Bales contends that Rau's findings as set forth in the October 16,
2013 FCE supersede Dr. Elias' findings as set forth in his December 3, 2014 medical
report. Ohio Adm.Code 4121-3-34(C)(1) requires that an application for PTD
compensation be accompanied by medical evidence from a physician, psychologist, or a
psychiatric specialist; the rule even contains a reference to opinion from a vocational
expert. The rule does not, however, mention evidence or opinion from a physical
therapist. Consequently, the argument that Rau's findings control the commission's
consideration of Stallard Bales' request for PTD compensation is not viable.
IV. CONCLUSION
{¶ 23} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of Stallard Bales' objection, we find the magistrate has
properly stated the pertinent facts and applied the appropriate law. Therefore, we
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No. 15AP-418
overrule Stallard Bales' objection to the magistrate's decision and adopt the decision as
our own, including the findings of facts and conclusions of law therein, and in accordance
with the magistrate's decision, the requested writ of mandamus is denied.
Objection overruled;
petition for writ of mandamus denied.
TYACK, P.J., and DORRIAN, J., concur.
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No. 15AP-418
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Bonnie S. Stallard Bales,
:
Relator,
:
v. No. 15AP-418
:
Industrial Commission of Ohio and (REGULAR CALENDAR)
Mid Ohio Home Health Ltd. :
Caring Hearts of Mid-Ohio,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on November 24, 2015
Tarkowsky & Piper Co., L.P.A., John Tarkowsky and
Gregory J. Tarkowsky, for relator.
Michael DeWine, Attorney General, and LaTawnda N.
Moore, for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 24} Relator, Bonnie S. Stallard Bales, 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 relator's application for permanent
total disability ("PTD") compensation, and ordering the commission to find that she is
entitled to that compensation.
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No. 15AP-418
Findings of Fact:
{¶ 25} 1. Relator sustained a work-related injury on October 13, 2008 and her
workers' compensation claim has been allowed for the following conditions:
SPRAIN THORACIC REGION/ SPRAIN LUMBAR REGION;
SPRAIN OR STRAIN RIGHT TRAPEZIUS MUSCLE;
SUBSTANTIAL AGGRAVATION OF PRE-EXISTING
DEGENERATIVE DISC DISEASE AT L4-S1 LEVEL.
{¶ 26} 2. Relator has not returned to work since, and has been awarded a 12
percent permanent partial disability award. Relator has not undergone any surgeries for
her allowed conditions.
{¶ 27} 3. A functional capacity evaluation ("FCE") was performed by physical
therapist, Steven Rau. In the report, dated October 16, 2013, Rau noted relator had the
following abilities/strengths:
[One] Demonstrates standing tolerance of 10 continuous
minutes.
[Two] Demonstrates stair climbing of 20 steps with the use
of hand rails on both sides.
[Three] Shows average right and left hand coordination.
[Four] Waist to crown lift with hands on handles maximum
10 lbs.
[Five] Waist to crown lift with hand preferred method 14 lbs.
[Six] Front carry maximum 14 lbs.
[Seven] Short carry maximum 20 lbs.
[Eight] Right and left hand carry maximum of 12 lbs.
[Nine] Lifting capacity in general is low.
Rau further listed the following limitations:
[One] Unable to perform squat or crouch.
[Two] Unable to perform step ladder climbing.
[Three] Right hand grip 41 lbs. and left hand grip 39 lbs.
[Four] Walking tolerance significantly limited to 260 yds. in
6 minutes.
[Five] Elevated work tolerance significantly limited.
[Six] Sitting tolerance limited to 20 continuous minutes.
[Seven] Standing tolerance limited to 10 continuous
minutes.
[Eight] Cannot perform floor to waist lift.
[Nine] Lifting capacity in general is low.
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No. 15AP-418
{¶ 28} Therapist Rau also completed an FCE grid as part of his report. On that
grid, Rau indicated that, during the course of a normal 8-hour work day, relator could
occasionally (6-33%) front carry 10 pounds, short carry 16 pounds, and right/left carry 10
pounds. Rau also indicated that relator could occasionally perform both standing and
sitting work, limiting standing to 10 continuous minutes and sitting to 20 continuous
minutes.
{¶ 29} 4. On September 26, 2014, relator filed her application for PTD
compensation. On her application, relator indicated that she had filed for Social Security
Disability benefits, but did not indicate whether or not she was receiving those benefits or
the amount of those benefits. Relator attended post-graduate school, could read, write,
and perform basic math, and was not using any special appliance or device. According to
her work history, relator had worked as a teacher and as a registered nurse.
{¶ 30} 5. Relator's application was supported by the March 4, 2014 report of her
treating physician Michael R. Viau, M.D., who stated:
Ms. Stallard Bales was seen by myself on 12-10-08 after
sustaining an injury on 11-13-08 when she was a home health
aide and was lifting a patient that weighed 170 lb plus
multiple times developing significant pain in the lower back
and buttocks with an initial diagnosis of sprain/strain
thoracic and lumbar spine but also aggravation of pre-
existing DDD particularly at the L4-S1 levels. She has
undergone a multitude of conservative measures including
pain management, therapy and various medications all of
which have been of minimal benefit. She was last seen in my
office on 01-17-14 with her last MRI done 07-08-11 actually
showing in addition to DDD L4-L5 and L5-S1.
On examination she had marked restriction with lumbar
flexion, paraspinal spasm and rated her pain as 5/10 at the
least and 10/10 at the worst which she described as an
aching, burning sensation in her back only.
It is in my opinion that Ms. Stallard Bales condition is
permanent and I also feel that she is permanently totally
disabled in regards to all sustained remunerative
employment as a consequence of the allowed conditions in
her claim only.
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No. 15AP-418
I date her as permanently disabled as of 02-10-14. Should be
noted that she still sees a pain management physician and
also in my opinion she is not a surgical candidate.
{¶ 31} 6. Relator also submitted records concerning her participation in vocational
rehabilitation. Relator included the August 15, 2014 vocational report of Amy L. Corrigan,
M.Ed., CRC. In her report, Corrigan indicated that relator was referred for a
comprehensible vocational evaluation on July 16, 2014. Corrigan relied on the medical
report of Richard Ray, M.D., who opined relator had not reached maximum medical
improvement and the FCE prepared by Therapist Rau who only considered whether
relator could return to her former position of employment. Corrigan listed the following
barriers to employment:
There are barriers that should be addressed or considered
while Sue pursues new employment. She does not have
competitive computer literacy skills, suggesting reduced
options for sedentary work roles (especially in business or
administrative/office environments). Also, she has a current
lengthy work gap (5 1/2 + years), significant work
restrictions (sedentary demand), unrelated medical
conditions that may affect re-employment strategies (blood
pressure, diabetes, mood/depression), a rather narrow
labor-intensive or higher-risk employment background
(medical/patient care), and a higher than average wage
history ($21.50 hourly). Practical barriers to work may
include disability adjustment issues, Sue's transportation
limits (no current driver's license or vehicle), her
consideration of a part-time work schedule (potentially
reducing job options), her eligibility/receipt of social security
benefits (posing a possible distraction to job search and/or
deliberation of job opportunities), and her limited career
ideas/job goals or knowledge of the labor market outside
familiar fields.
Corrigan also listed the following assets to employment:
Considering work experience, education, and individual
presentation, Sue has the following employable skills or
attributes: a high school diploma (1976); rudimentary
computer sells (Internet/email); a Bachelor of Science
degree in Education (1989) with history of a teacher's license
and seven years' [sic] pubic school experience (1990 to 1997)
as a substitute school teacher (Richland County Board of
Education); medical training (1997 to 1999) and
certification/diploma as a registered nurse (RN) with nearly
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No. 15AP-418
ten years' [sic] experience (1999 to 2008) as a home health
and CCU nurse (Mid Ohio Home Health, Miami Valley
Hospital); remote customer service/restaurant experience
(Mark Pi's, Brocks); and a serious, focused personality with
good verbal skills.
{¶ 32} Corrigan noted that relator had skills which would transfer to sedentary
employment and identified approximately 20 jobs which were within her abilities.
Corrigan noted the following employment expectations:
To identify Sue's perspective of the current labor market and
personal vocational agenda, the vocational questionnaire
included employment expectation information. She did not
identify whether she was interested in full- or part-time
employment, relating this to concerns about her physical
capacity. Sue did not clarify wage expectations or shift
preferences. She currently receives no income, reporting her
previous income of $1100 biweekly in Worker's
Compensation Temporary Total (TT) benefits ended in
February 2014 when MMI was determined. Sue was also
receiving $800 per month in Social Security Disability
Insurance (SSDI) benefits until an overpayment was made.
She now receives no SSDI income until the overpayment is
repaid. Sue said she has been living on her savings since
February 2014, and she claims she is almost out of money.
She denies having additional sources of income (i.e., no
Supplemental Security Income (SSI), disability pension or
retirement benefits). Sue has medical coverage that she pays
"out of pocket" $345 quarterly plus $100 Medigold (dental).
Geographic search areas for job placement were not
identified. She does not have a valid driver's license or a car,
noting her license expired in 2010. Sue indicated she let her
driver's license expire because she felt her pain was too
distracting to make her a safe driver.
{¶ 33} Ultimately, no individualized rehabilitation plan was written and relator's
rehabilitation case file was closed based upon a finding that she was not feasible due to
her physical restrictions.
{¶ 34} 7. Relator was examined by Jon A. Elias, M.D. In his December 3, 2014
report, Dr. Elias identified the allowed conditions in relator's claim, noted the history of
her claim, as well as the following self-reported complaints as indicated by relator:
She can ambulate without assistive devices but does have
pain with distance. She denies any weakness to any of her
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No. 15AP-418
lower extremities. She states that her pain is greatest to the
right lumbar area. Her pain becomes more significant when
sitting for long periods of time and standing.
* * * She states that she does not drive but can perform her
ADLs appropriately. She lives in a house with her oldest
daughter. She does not perform any yard work at this time.
She can perform light housework. She states she does about
20 minutes of work at a time.
She can sit for about 30 minutes and stand about 20 minutes
at a time. She states she can do limited walking. She rarely
leaves the house. In fact, she does a lot of reading at home.
She can no longer go on walks. She used to do some sporting
activities such as skiing, which she can no longer perform.
She used to do a lot of gardening.
{¶ 35} After providing his physical findings upon examination, Dr. Elias opined
that relator had an eight percent whole person impairment and that she was able to
perform sedentary work, stating:
I believe the claimant can perform sedentary type of work.
Her physical examination findings, as well as the prior
objective diagnostic findings indicate a low back condition
that should allow a minimum of sedentary work. The fact
that she is on medications further makes me feel that
sedentary work should be the only work that she be
performing at this time. I would give no other limitations.
{¶ 36} 8. Relator's application for PTD compensation was heard before a staff
hearing officer ("SHO") on March 2, 2015. The SHO relied on the December 3, 2014
report of Dr. Elias to find that relator was capable of performing sedentary work.
Thereafter, the SHO found that relator's current age of 57 years was a neutral factor while
her education and work history were both positive factors. To the extent that the SHO
discussed the FCE performed by Therapist Rau, the SHO only noted that, according to his
evaluation, relator could not return to her former position of employment as a home
health registered nurse. Specifically, the SHO addressed the non-medical disability
factors:
The Staff Hearing Officer finds that the Injured Worker's
current age of 57 is considered a neutral factor to re-
employment, i.e., is not considered either positively or
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No. 15AP-418
negatively. The Injured Worker's education is a positive
factor to re-employment. The Staff Hearing Officer notes
that the Injured Worker has a Bachelor of Science degree in
Education. Following attainment of that degree, the Injured
Worker went on to participate in an accelerated nursing
program in which she obtained her Bachelor of Science in
Nursing degree. Per the information contained in the claim
file, the Injured Worker graduated second in her class in the
accelerated nursing program. The Staff Hearing Officer finds
that a college degree implies an above-average level of
intelligence that would facilitate the acquisition of new skills
that are conducive to sedentary work. It also suggests a
measure of commitment, hard work, and discipline that
prospective employers value. The Injured Worker had a
vocational evaluation performed by Meleesa Hunt, Ph.D.
dated 01/05/2015. Although the Staff Hearing Officer is not
persuaded by the conclusion of Dr. Hunt that the Injured
Worker is permanently and totally disabled from all
sustained remunerative employment, the Staff Hearing
Officer does note that Dr. Hunt performed IQ testing. Dr.
Hunt noted that the Injured Worker scored in the upper
range of high average intellectual ability and Dr. Hunt noted
that the Injured Worker's level of cognitive ability is a
vocational strength, posing no significant barrier to
employment. The Staff Hearing Officer notes that the
Injured Worker's past work history has involved work as a
waitress, substitute teacher, and registered nurse. The last
position performed by the Injured Worker was that of a
registered nurse doing home health care. The Staff Hearing
Officer acknowledges that this job cannot be performed due
to the Injured Worker's limitation of sedentary work. The
Staff Hearing Officer notes that the Injured Worker had a
Functional Capacity Evaluation performed by Steve Rau,
Physical Therapist, on 10/16/2013. The conclusion of
Therapist Rau in that report was that the Injured Worker
could not perform her former position of employment as a
home health registered nurse. Given the Injured Worker's
neutral age factor, as well as her high level of intelligence,
and her proven ability to learn as noted by her high school
diploma, and two separate bachelor degrees, the Staff
Hearing Officer finds that the Injured Worker would have
the ability to perform sedentary work as the Injured Worker
has the intellectual ability to be retrained. The Staff Hearing
Officer finds that the Injured Worker's high school education
alone generally implies that an Injured Worker has the
intellectual capacity to undergo additional short term
academic retraining, and also to intellectually complete an
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No. 15AP-418
extensive on-the-job training program for semi-skilled work.
The Injured Worker's education however is even beyond that
of high school. The vocational evaluation performed by Amy
Corrigan, M.Ed., CRC, vocational evaluation specialist
identified many potential jobs in the medical field that were
sedentary in nature and that could be performed with skill
enhancement or on-the-job training for some of the more
specialized fields. However, those jobs such as medical
secretary or a dispatcher for emergency services or medical
admitting clerk are sedentary in nature and could make use
of the Injured Worker's background education in nursing
and could be performed with some skill enhancement or on-
the-job training.
***
The Staff Hearing Officer therefore finds that the Injured
Worker retains the physical functional capacity to perform
sedentary work based solely on the allowed conditions in this
claim, which Dr. Elias indicated resulted in only an 8% whole
person impairment. The Staff Hearing Officer finds that
given the Injured Worker's neutral age of 57, as well as her
college education with a high average intellectual ability, the
Injured Worker is capable of performing sedentary work and
has the intelligence to complete any on-the-job training for
sedentary work. As such, the Injured Worker's IC-2
application filed 09/26/2014 is denied.
{¶ 37} 9. Relator's request for reconsideration was denied by order of commission
mailed April 4, 2015.
{¶ 38} 10. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 39} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
{¶ 40} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St. 3d 28 (1983).
{¶ 41} 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.
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No. 15AP-418
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).
{¶ 42} 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).
{¶ 43} The crux of relator's argument is that, according to the FCE performed by
Therapist Rau, she is not capable of performing a full range of sedentary employment. As
such, relator asserts that the commission abused its discretion when it found that she was
not permanently and totally disabled and was able to perform sedentary work. Relator
asserts that, inasmuch as, according to the FCE, she is only able to sit for 20 continuous
minutes, as a matter of law, her restrictions do not place her in the sedentary category.
{¶ 44} Relator cites State ex rel. Libecap v. Indus. Comm., 83 Ohio St. 3d 178
(1998), in support of her argument.
{¶ 45} In Libecap, the claimant had worked as a waitress and a bus driver and her
claims had been allowed for numerous physical conditions as well as dysthymic disorder.
In his report regarding her allowed psychological conditions, Dr. Bonds failed to clearly
address the primary issue of the effect of her emotional conditions upon her ability to be
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No. 15AP-418
retrained. With regard to the allowed physical conditions, the commission found the
claimant medically capable of sustained remunerative employment at the sedentary level,
relying upon the medical report of Dr. Littlefield who stated that claimant could sit for no
more than 30 minutes at a time. In mandamus, this court found that the commission
abused its discretion in determining that claimant had the medical capacity to perform
sedentary work because such work requires sitting most of the time and the commission
had accepted that claimant could not sit for more than 30 minutes at a time. Therefore,
regardless of the fact that the physician had placed the claimant in the "sedentary"
category, this court found that the specific restrictions were so narrow as to preclude
sustained remunerative employment. Relator argues that the same is true in the present
case.
{¶ 46} In the time since this court issued its decision in Libecap, the Ohio Supreme
Court has released other decisions which affect this court's treatment of relator's
allegation that the commission abused its discretion. In State ex rel. Toth v. Indus.
Comm., 80 Ohio St. 3d 360 (1997), the Supreme Court considered whether or not part-
time work constituted sustained remunerative employment for purposes of PTD
compensation and concluded that it did. In State ex rel. DeSalvo v. May Co., 88 Ohio
St.3d 231 (2000), the court indicated that, where a claimant is capable of working more
than four hours per day by combining their abilities to sit, stand and walk, the
commission may find that the worker is capable of sustained remunerative employment.
Based upon these cases, certain principles emerge. First, sustained remunerative
employment includes part-time work. Second, where a claimant can perform a work
activity but only for a very limited amount of time (such as less than three or four hours
per day), the commission may conclude that the claimant is permanently and totally
disabled. However, where the claimant is capable of working more than four hours per
day by combining their abilities to sit, stand and walk, the commission may find that the
worker is capable of sustained remunerative employment.
{¶ 47} In the present case, the commission relied on the medical report of Dr. Elias
who opined relator could perform sedentary work. Contrary to relator's assertions, Dr.
Elias never limited her to 30 minutes of continuous sitting and 20 minutes of continuous
standing. Instead, Dr. Elias noted that relator "self-reported" these restrictions. As such,
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No. 15AP-418
Dr. Elias' report does not even contain a Libecap-type contradiction. Further, even if
Therapist Rau was correct in limiting relator's ability to continually sit and stand, the case
law which followed Libecap, finding that part-time work constitutes sustained
remunerative employment, gives the commission the discretion to determine that relator
was not permanently and totally disabled.
{¶ 48} Relator also argues that the commission abused its discretion when it
determined that she had the ability to be retrained to perform sedentary work. Relator
asserts that it has already been determined that she is not able to be retrained.
{¶ 49} In stating that there is vocational evidence in the record that she is not able
to be retrained, relator points to the August 15, 2014 vocational assessment. As noted in
the findings of fact, no individualized rehabilitation plan was ever written. Her vocational
rehabilitation case was closed due to her physical restrictions based on a medical report
upon which the commission did not rely. A review of that report reveals that more than
20 occupations were identified as possible for someone with relator's training and
abilities. However, nothing in that report indicates that relator lacks the ability to be
retrained. To the extent that relator asserts that the commission abused its discretion
when it failed to discuss the vocational closure report (asserting that the closure report
indicates that she cannot be retrained), relator's argument is simply not well-taken. The
vocational report lacks any statement regarding whether or not relator was actually
suitable for retraining.
{¶ 50} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied her application
for PTD compensation and this court should deny her request for a writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA
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
22
No. 15AP-418
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).