State ex rel. Cleveland Metro. School Dist. v. Indus. Comm. , 2022 Ohio 2150 ( 2022 )

[Cite as State ex rel. Cleveland Metro. School Dist. v. Indus. Comm., 2022-Ohio-2150.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Cleveland Metropolitan :
School District,
:
Relator,
:
v. No. 20AP-139
:
Industrial Commission of Ohio et al., (REGULAR CALENDAR)
:
Respondents.
:
D E C I S I O N
Rendered on June 23, 2022
On brief: Consolo Law Firm, Co., LPA, Frank Consolo, and
Horace F. Consolo, for relator.
On brief: Dave Yost, Attorney General, and Jacquelyn
McTigue, for respondent Industrial Commission of Ohio.
On brief: Garson Johnson, LLC, and Grace A. Szubski, for
respondent Marion A. Saddler.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
JAMISON, J.
{¶ 1} Relator, Cleveland Metropolitan School District ("employer"), filed this
original action requesting this court issue a writ of mandamus ordering respondent,
Industrial Commission of Ohio ("commission"), to vacate its August 8, 2019 order that
granted the request of respondent, Marion A. Saddler ("claimant"), for temporary total
disability ("TTD") compensation.
No. 20AP-139 2
I. PROCEDURAL HISTORY
{¶ 2} This matter was referred to a magistrate pursuant to Civ.R. 53 and Loc.R.
13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision,
including findings of fact and conclusions of law, and recommended this court deny
employer's request for a writ of mandamus. The magistrate concluded that the commission
did not abuse its discretion when it decided to exercise continuing jurisdiction and award
claimant TTD compensation because medical reports issued by Chris Modrall, Ph.D., and
Patrick Yingling, Psy.D., upon which the commission expressly relied, provided some
evidence in support of the decision. Accordingly, the magistrate recommended we deny
employer's request for a writ of mandamus.
II. OBJECTION
{¶ 3} Employer filed the following objection to the magistrate's decision:
The Magistrate made an assumption – not a valid legal
conclusion supported by evidence – when he decided that the
commission acted in its discretion by apparently finding
Dr. Kaplan's May 28, 2019 report and opinion unpersuasive in
light of the review by Dr. Modrall and the reports of
Dr. Yingling.
(Emphasis sic.)
III. DISCUSSION
A. Objection
{¶ 4} The commission relied on the medical reports of Drs. Modrall and Yingling
in support of the conclusion that substantial aggravation of pre-existing major depressive
disorder was a newly diagnosed condition that prevented claimant from returning to her
former position as a cleaner. The magistrate noted that both the district hearing officer
("DHO") and staff hearing officer ("SHO") found the reports of Drs. Modrall and Yingling
persuasive. Dr. Modrall opined the allowance for substantial aggravation of a pre-existing
major depressive disorder was a new and changed circumstance, and both Drs. Modrall
and Yingling were of the opinion claimant's newly allowed condition prevented her return
to work.
{¶ 5} We note that employer's objection does not directly challenge the
magistrate's conclusion that the reports issued by Drs. Modrall and Yingling constitute
"some evidence" to support the commission's decision. (App'x at ¶ 62.) Rather, employer
No. 20AP-139 3
argues that that the commission abused its discretion when it disregarded the opposing
medical report and opinions submitted by Robert G. Kaplan, Ph.D., without stating its
reasons for doing so.
{¶ 6} Employer relies on State ex rel. Ritzie v. Reece-Campbell, Inc., 146 Ohio St.3d
259, 2015-Ohio-5224, in support of its contention. In Ritzie, claimant applied for TTD
compensation. The only medical evidence of the alleged disability was a report from
claimant's treating physician. The commission denied TTD compensation and this court
denied relief in mandamus. In affirming this court, the Supreme Court of Ohio ruled that
the commission has the discretion to reject uncontroverted medical evidence so long as the
commission explains its reason for doing so. Id. at ¶ 13.
{¶ 7} Both the commission and claimant argue that Ritzie is distinguishable
because, in Ritzie, the commission rejected the uncontroverted medical evidence of the
alleged disability, whereas the commission in this case issued a decision based on
conflicting medical evidence. This court has previously distinguished Ritzie for this very
reason.
{¶ 8} In State ex rel. Hettinger v. Ferrellgas, Inc., 10th Dist. No. 16AP-751, 2017-
Ohio-7899, the commission expressly relied on a medical report from Mark E. Reynolds,
M.D., in denying relator's permanent total disability ("PTD") application. In relator's
subsequent mandamus action, a magistrate of this court found that Dr. Reynolds' opinion
was some evidence that relator's allowed psychological condition would not prevent him
from sustained remunerative employment. The magistrate also found that the commission
was not required to explain why it did not rely on the report of Chad M. Sed, Ph.D., which
relator offered in support of his PTD application. Relator objected, arguing Ritzie required
the commission to discuss Dr. Sed's report and to explain why it was rejected. In concluding
Ritzie did not require an explanation under the circumstances, we stated:
[I]n Ritzie, the only medical evidence of the alleged disability
was from the treating physician. There was no contrary
medical evidence before the commission. Under those
circumstances, Ritzie required the commission to explain why
it rejected the only medical report in the file. In the case at bar,
however, there was conflicting medical evidence before the
commission. Under those circumstances, the commission was
only required to state the evidence on which it relied and to
No. 20AP-139 4
briefly explain why relator was not entitled to PTD
compensation.
Hettinger at ¶ 5.
{¶ 9} Here, as in Hettinger, there was conflicting medical evidence before the
commission whether claimant suffered from substantial aggravation of a pre-existing
major depressive disorder, whether the condition was a new and changed circumstance,
and whether the condition prevented claimant from returning to her former position as a
cleaner. Because the commission decided these issues on conflicting medical evidence, the
commission was only required to state the evidence on which it relied and to briefly explain
why claimant was entitled to TTD compensation. State ex rel. Metz v. GTC, Inc., 142 Ohio
St.3d 359, 2015-Ohio-1348, ¶ 14. The commission expressly relied on the medical reports
issued by Drs. Modrall and Yingling, and briefly explained its reason for awarding TTD
compensation. The commission complied with Ritzie.
{¶ 10} Furthermore, to the extent employer argues the commission failed even to
consider Dr. Kaplan's report because it was not mentioned either by the DHO or SHO, we
note that both decisions specify "[a]ll the evidence was reviewed and considered." (DHO's
June 21, 2019 Decision at 1; SHO's Aug. 8, 2019 Decision at 2.)
{¶ 11} For the foregoing reasons, employer's objection is overruled.
IV. CONCLUSION
{¶ 12} On examination of the magistrate's decision, an independent review of the
record pursuant to Civ.R. 53, and consideration of employer's objection, we find the
magistrate has properly determined the facts and correctly applied the relevant law.
Accordingly, we adopt the magistrate's decision as our own, overrule employer's objection,
and deny the requested writ of mandamus.
Objection overruled;
writ of mandamus denied.
SADLER and NELSON, JJ., concur.
NELSON, J., retired, of the Tenth Appellate District, assigned
to active duty under the authority of the Ohio Constitution,
Article IV, Section 6(C).
_________________
No. 20AP-139 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Cleveland Metropolitan, :
School District,
:
Relator,
:
v. No. 20AP-139
:
Industrial Commission of Ohio et al., (REGULAR CALENDAR)
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on December 1, 2021
Consolo Law Firm, Co., LPA, Frank Consolo, and Horace F.
Consolo, for relator.
Dave Yost, Attorney General, and Jacquelyn McTigue, for
respondent Industrial Commission of Ohio.
Garson Johnson, LLC, and Grace A. Szubski, for respondent
Marion A. Saddler.
IN MANDAMUS
{¶ 13} Relator, Cleveland Metropolitan School District ("employer"), has filed this
original action requesting this court issue a writ of mandamus ordering respondent,
Industrial Commission of Ohio ("commission"), to vacate its August 8, 2019, order that
granted the request of respondent, Marion A. Saddler ("claimant"), for temporary total
disability ("TTD") compensation.
No. 20AP-139 6
Findings of Fact:
{¶ 14} 1. On January 4, 2010, claimant sustained an injury in the course of and
arising out of her employment as a cleaner when she slipped on ice in a parking lot and fell
to the ground. Her workers' compensation claim was initially allowed for the following
conditions: sprain of neck; sprain lumbar region; herniated disc L4-L5; herniated disc C4-
7 with radiculopathy; lumbar bulging disc at L5-S1; herniated disc C4-C5, C5-C6, C6-C7;
and psychogenic pain. She subsequently was granted TTD compensation, beginning
January 5, 2010.
{¶ 15} 2. Beginning in November 2011, claimant briefly participated in vocational
rehabilitation, and her rehabilitation program closed in December 2011. TTD was
reinstated beginning December 19, 2011.
{¶ 16} 3. On November 15, 2011, claimant was laid off from her employment with
the employer. She was placed on a recall list that was effective for two years, and on
September 4, 2012, the employer sent claimant a notice of recall as a cleaner. Although the
notice indicated that claimant was required to respond by September 10, 2012, she did not
respond until September 11, 2012, and she failed to circle on the returned form whether she
would accept or reject the recall offer.
{¶ 17} 4. On June 22, 2015, claimant was examined by Kenneth Gruenfeld, Psy.D.,
for the only allowed psychological condition in the claim at the time, psychogenic pain. In
his July 2, 2015, independent medical examination report, Dr. Gruenfeld made the
following findings: (1) claimant has not achieved maximum medical improvement
("MMI"), given her treatment gains noted in the April 1, 2015, physician's report of work
ability; (2) claimant's mental-health issues likely do not prevent her from returning to her
former position of employment; (3) claimant's mental-health symptoms fall in the mild to
moderate range, and she is capable of completing old job tasks as long as they don't trigger
her pain condition, which would trigger her depression; (4) given her mental-health issues,
she is unlikely to thrive in a moderate to high-stress job setting; she may thrive in a low-
stress job setting; (5) claimant's mental-health issues do not prevent her from performing
any type of remunerative employment; she can return to her former type of work as long as
she has proper timelines to complete job tasks; (6) there is no recommendation for
vocational rehabilitation because she can return to her former type of work; (7) she should
No. 20AP-139 7
be restricted from working in jobs that require physical labor as the pain from the physical
labor can retrigger her depression; and (8) claimant's problems with depression could
prevent her from returning to the workforce, although given the physical report of work
ability cited only mild to moderate impairment in functioning, she can return to the
workforce.
{¶ 18} 5. On July 16, 2015, the employer and the Bureau of Workers' Compensation
("BWC") filed motions to terminate TTD.
{¶ 19} 6. On September 3, 2015, the district hearing officer ("DHO") held a hearing
on the motions of the employer and the BWC to terminate TTD. In a September 10, 2015,
order, the DHO found the following: (1) claimant has reached MMI for the allowed physical
and psychological conditions in the claim; (2) the psychological conditions do not prohibit
claimant from returning to her former position of employment; (3) the order is based upon
the June 30, 2015, medical report of Cynthia Taylor, D.O., and the June 22, 2015, report of
Dr. Gruenfeld; and (4) TTD compensation shall terminate for both the allowed physical
conditions and psychological conditions.
{¶ 20} 7. Claimant appealed the DHO's order.
{¶ 21} 8. On October 15, 2015, the staff hearing officer ("SHO") held a hearing on
claimant's appeal. In an October 20, 2015, order, the SHO found the following: (1) the
allowed physical conditions have reach MMI, based upon the June 30, 2015, report of
Dr. Taylor; (2) the allowed psychological conditions do not prevent claimant from returning
to her former position of employment as a cleaner, based upon the June 22, 2015, report of
Dr. Gruenfeld; and (3) TTD is terminated.
{¶ 22} 9. Claimant appealed the SHO's order, but the commission refused the appeal
on November 10, 2015.
{¶ 23} 10. In a November 11, 2016, report, Raymond Richetta, Ph.D., found claimant
met the criteria for moderate major depressive disorder, and the condition was a direct and
proximate result of the allowed physical conditions of the 2010 work injury.
{¶ 24} 11. On November 15, 2016, claimant entered into a rehabilitation agreement
with the BWC, and she participated in vocational rehabilitation services. She continued to
do so until May 22, 2017, when her vocational rehabilitation file was closed. The November
20, 2016, vocational rehabilitation initial assessment report indicated claimant expressed
No. 20AP-139 8
a strong, sincere interest in attempting to return to work. The May 30, 2018, vocational
rehabilitation closure report indicated that, while claimant put in 100 percent effort during
all of her plan services, she is no longer physically able to continue with the program and is
no longer feasible and/or ready to return to work given her physical limitations and related
pain.
{¶ 25} 12. On February 6, 2018, claimant filed a C-86 motion, requesting allowance
of the condition of substantial aggravation of pre-existing major depressive disorder.
{¶ 26} 13. On December 12, 2018, Patrick Yingling, Psy.D., completed a MEDCO-14
physician's report of work ability form, which indicated the following: (1) claimant's
previously allowed conditions and newly allowed condition prevented her return to work
from March 16, 2018 through the present; (2) claimant's psychological symptoms that serve
as a barrier to her return include depressed mood, low energy level, and social withdrawal;
(3) claimant continues to be unable to return to work as those same symptoms remain
present; and (4) claimant is not suitable for vocational rehabilitation due to psychological
symptoms and physical limitations.
{¶ 27} 14. On January 11, 2019, the commission allowed the new condition of
substantial aggravation of pre-existing major depressive disorder.
{¶ 28} 15. On March 8, 2019, claimant requested TTD compensation based upon the
allowed condition of substantial aggravation of pre-existing major depressive disorder.
{¶ 29} 16. On March 15, 2019, Dr. Yingling completed a MEDCO-14 physician's
report of work ability form, which indicated the following: (1) claimant's allowed conditions
continue to prevent her return to work; (2) claimant's psychological symptoms that serve
as a barrier to her return include depressed mood, insomnia, persistent pain, and social
withdrawal; and (3) claimant is not suitable for vocational rehabilitation due to her
psychological symptoms and physical limitations.
{¶ 30} 17. On March 18, 2019, Chris Modrall, Ph.D., completed a MEDCO-21
physician review, in which she found the following: (1) the allowance for a substantial
aggravation of a pre-existing major depressive disorder, single episode, moderate, was a
new and changed circumstance; (2) the records from claimant's psychologists and treating
professionals document significant depressive symptoms that would be work prohibitive;
(3) even though her psychogenic pain disorder has reached MMI, claimant continues to
No. 20AP-139 9
have issues with pain that contribute to her depression; (4) based solely on her substantial
aggravation of a pre-existing major depressive disorder, single episode, moderate, claimant
would not be able to return to her former position of employment; (5) she has not reached
MMI on her depressive disorder; (6) the findings would support TTD starting on November
11, 2016, rather than September 4, 2015; (7) substantial aggravation of a pre-existing major
depressive disorder, single episode, moderate, was not diagnosed until the letter written by
Dr. Richetta on November 11, 2016; and (8) there may have been some symptoms of
depression mentioned in notes before that, but no specific disorder was diagnosed before
that date.
{¶ 31} 18. On April 2, 2019, the BWC granted claimant TTD compensation. The
employer appealed.
{¶ 32} 19. On May 7, 2019, claimant was examined by Robert G. Kaplan, Ph.D.,
regarding the conditions of psychogenic pain and substantial aggravation of pre-existing
major depressive disorder. In his May 28, 2019, report, Dr. Kaplan found the following:
(1) claimant met the criteria for diagnoses of pain disorder associated with both
psychological factors and a general medical condition (psychogenic pain NEC by
adjudication), and major depressive disorder, single episode, moderate severity
(substantial aggravation by adjudication); (2) claimant is exaggerating, fabricating, and
malingering psychological symptoms and reporting pain and physical limitations in a
manner highly similar to individuals who are instructed to magnify their symptoms for
secondary gain; (3) claimant is not a reliable reporter of her history, the causes of her
psychological symptoms, or the circumstances under which her symptoms occurred;
(4) apart from her allowed conditions, other stressors, such as financial difficulties,
relationship failures, family deaths, low-average intelligence, traumatic events, unallowed
physical conditions, family medical issues, and mocking from family members, have caused
an increase in claimant's pre-existing depression and psychological impairment;
(5) claimant had ongoing symptoms of major depressive disorder since 2005 and ongoing
treatment for major depressive disorder since 2009; (6) although there was a substantial
aggravation of major depressive disorder, single episode, moderate allowed in the claim,
there has been no new and changed circumstances with regard to the symptoms of the
major depressive disorder that would warrant another period of TTD; (7) there was never
No. 20AP-139 10
a time since 2005 when the major depressive disorder remitted, and she has not developed
any new symptoms of major depressive disorder that would require any treatment beyond
what she has already received; and (8) substantial aggravation of pre-existing major
depressive disorder, single episode, moderate severity is at MMI.
{¶ 33} 20. On June 12, 2019, claimant filed a request for TTD compensation.
{¶ 34} 21. On June 19, 2019, the matter was heard before the DHO on the employer's
appeal of the BWC's April 2, 2019, order.
{¶ 35} 22. In a June 21, 2019, order, the DHO vacated the BWC's order and granted
TTD, relying on Dr. Modrall's March 18, 2019, physician review and Dr. Yingling's
December 12, 2018, and March 15, 2019, reports. The employer appealed.
{¶ 36} 23. On July 30, 2019, the SHO held a hearing on the employer's appeal of the
DHO's order.
{¶ 37} 24. On August 8, 2019, the SHO issued an order, in which she found the
following: (1) the DHO's June 21, 2019, order is vacated; (2) claimant's request for TTD
compensation is granted based upon the psychological condition of substantial aggravation
of pre-existing major depressive disorder, in reliance upon the MEDCO-14's and C-84's of
Dr. Yingling and the March 18, 2019, review of Dr. Modrall; (3) Dr. Modrall found that the
additional allowance of the substantial aggravation of pre-existing major depressive
disorder establishes new and changed circumstances to justify the reinstatement of TTD
compensation, as he found claimant's depressive symptoms indicate that the newly allowed
psychological conditions were work prohibitive; (4) subsequent to the finding of MMI in
the October 15, 2015, SHO's order, claimant participated in vocational rehabilitation from
November 2016 through May 22, 2017, and the vocational rehabilitation file was closed
because claimant was no longer physically able to continue with the program;
(5) employer's argument that claimant is not entitled to TTD compensation because she
voluntarily abandoned the workforce is unpersuasive, because claimant's participation in
vocational rehabilitation shows she attempted to return to the workforce in some capacity,
and she could not return to her former position of employment based on the allowed
physical conditions and restrictions set forth in the June 30, 2015, report of Dr. Taylor.
{¶ 38} 25. On August 23, 2019, the employer appealed the August 8, 2019, SHO
order to the commission. The commission refused the appeal on August 26, 2019.
No. 20AP-139 11
{¶ 39} 26. On September 17, 2019, the employer filed a request for reconsideration,
which included the November 15, 2011, notice of layoff letter from the employer, and the
September 4, 2012, notice of recall letter from the employer. The commission denied the
request for reconsideration on September 26, 2019.
{¶ 40} 27. On March 5, 2020, the employer filed a complaint for writ of mandamus,
requesting that this court vacate the commission's order that granted claimant TTD
compensation.
{¶ 41} 28. The magistrate informally delayed a decision in this case until the Tenth
District Court of Appeals released two decisions potentially impacting this case, State ex
rel. Walmart, Inc. v. Hixson, 10th Dist. No. 19AP-323, 2021-Ohio-3802, and State ex rel.
Ohio State Univ. v. Pratt, 10th Dist. No. 19AP-603, 2021-Ohio-3420.
Conclusions of Law and Discussion:
{¶ 42} The magistrate recommends that this court deny the employer's writ of
mandamus.
{¶ 43} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 44} A clear legal right to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order that 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).
{¶ 45} Pursuant to R.C. 4123.52, "[t]he jurisdiction of the industrial commission and
the authority of the administrator of workers' compensation over each case is continuing,
and the commission may make such modification or change with respect to former findings
or orders with respect thereto, as, in its opinion is justified." R.C. 4123.52(A) contains a
No. 20AP-139 12
clear and broad grant of continuing jurisdiction to the commission. State ex rel. Neitzelt v.
Indus. Comm., 160 Ohio St.3d 175, 2020-Ohio-1453, ¶ 15. However, that jurisdiction is
conditioned on specific criteria: (1) new and changed circumstances, (2) fraud, (3) clear
mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal. State ex rel.
Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998). "Even where temporary total
disability compensation payments have been previously terminated, R.C. 4123.52 grants
the Industrial Commission continuing jurisdiction to award temporary total disability
compensation where the claimant has again become temporarily totally disabled." State ex
rel. Bing v. Indus. Comm., 61 Ohio St.3d 424 (1991), syllabus. Thus, a new and changed
circumstance may justify the reopening of a TTD award that had previously been
terminated on MMI grounds. State ex rel. Chrysler Corp. v. Indus. Comm., 81 Ohio St.3d
158 (1998).
{¶ 46} TTD compensation awarded pursuant to R.C. 4123.56 is compensation for
wages lost where a claimant's injury prevents a return to the former position of
employment. Upon that predicate, TTD compensation shall be paid to a claimant until one
of four things occurs: (1) the claimant has returned to work; (2) the claimant's treating
physician provides a written statement that the claimant is able to return to the former
position of employment; (3) work within the physical capabilities of the claimant is made
available by the employer or another employer; or (4) the claimant has reached maximum
medical improvement. R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio
St.2d 630 (1982).
{¶ 47} R.C. 4123.56, which was amended by H.B. No. 81, effective September 15,
2020, modified the prior version of R.C. 4123.56 by adding the following entirely new
language pertaining to voluntary abandonment:
(F) If an employee is unable to work or suffers a wage loss as
the direct result of an impairment arising from an injury or
occupational disease, the employee is entitled to receive
compensation under this section, provided the employee is
otherwise qualified. If an employee is not working or has
suffered a wage loss as the direct result of reasons unrelated
to the allowed injury or occupational disease, the employee is
not eligible to receive compensation under this section. It is
the intent of the general assembly to supersede any previous
judicial decision that applied the doctrine of voluntary
abandonment to a claim brought under this section.
No. 20AP-139 13
R.C. 4123.56(F).
{¶ 48} In Hixson, in addressing whether a claimant receiving TTD voluntarily
abandoned the workforce when she gave formal notice of her intent to retire from her
current employer, this court first discussed the evolution of the voluntary-abandonment
analysis in TTD compensation cases. This court found that the amended provisions in R.C.
4123.56(F) did not apply retroactively to the case. This court held in Hixson that
R.C. 4123.56(F), as amended by H.B. No. 81, does not apply to TTD compensation awards
in which both the injury and a final adjudication by the commission occurred before the
effective date of the new law. This court went on to find the most recent Supreme Court of
Ohio case, State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 78,
2018-Ohio-3890, decided September 27, 2018, applied to the present analysis to ascertain
whether the commission abused its discretion in granting TTD compensation. Following
Klein, this court found that an inquiry regarding the employee's physical capacity to work
or whether the employee was still disabled at the date of termination is no longer allowed
when the claimant has voluntarily abandoned the workforce.
{¶ 49} In Klein, the claimant suffered an industrial accident on November 5, 2014,
and a physician's report indicated he was unable to work from that date through January 5,
2015. The claimant requested TTD compensation. The claimant testified before the DHO
that he had been planning to move to Florida prior to the injury, he had told others that he
planned to move to Florida prior to the injury, and claimant informed the employer that he
was moving to Florida on October 31, 2014, nearly one week before the injury. The DHO
granted claimant's TTD compensation claim for the closed period of November 6 through
19, 2014, finding that claimant voluntarily terminated his employment on November 20,
2014, for reasons unrelated to the workplace injuries. The order was affirmed by the SHO,
and the commission refused additional appeals. Upon a writ of mandamus, this court
concluded that, because claimant was medically unable to return to work, he was unable to
voluntarily abandon his employment on that date.
{¶ 50} The Supreme Court, overruling aspects of prior case law, reversed this court's
decision, reasserting the fundamental tenet of eligibility for TTD compensation that the
injury must cause the claimant's loss of earnings. The court in Klein explained that "when
No. 20AP-139 14
a claimant removes himself from employment for reasons unrelated to the work-related
injury, he is no longer eligible for temporary-total-disability compensation." Id. at ¶ 19,
citing State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305,
¶ 38. The court further explained that, "In those circumstances, the voluntary
abandonment—and not the injury—causes the loss of wages." Id. Thus, "an employee who
quit[s] his job for reasons unrelated to his workplace injury [i]s ineligible for temporary-
total-disability compensation." Id. at ¶ 20, citing State ex rel. McGraw v. Indus. Comm., 56
Ohio St.3d 137 (1990). "[I]t would not serve the purpose of temporary-total-disability
compensation to award compensation to a worker whose own actions, and not his
workplace injury, have prevented his return to his former position of employment." Id. at
¶ 22, citing State ex rel. Ashcraft v. Indus. Comm. of Ohio, 34 Ohio St.3d 42, 43-44 (1987).
The court in Klein emphasized that the pertinent issue is whether the claimant abandoned
his previous position with the employer of record in the claim, not whether the claimant
intended to abandon the workforce entirely. See Id. at ¶ 29 (finding that when a workers'
compensation claimant voluntarily removes himself from his former position of
employment for reasons unrelated to a workplace injury, he is no longer eligible for TTD
compensation, even if the claimant remains disabled at the time of his separation).
{¶ 51} This court recently analyzed Klein in Pratt. In Pratt, the claimant submitted
her resignation to the employer on June 20, 2017, effective July 5, 2017. After she submitted
her resignation but before the effective date of resignation, the claimant sustained a
workplace injury and never returned to work for the employer. The claimant was granted
TTD compensation from the date of injury, but the employer subsequently filed a motion
to terminate TTD. The DHO granted the motion to terminate, finding that all TTD amounts
paid for the period after the claimant's resignation letter submission date of June 20, 2017,
were improperly paid. The claimant submitted a copy of an employment agreement
between the claimant and a new employer, which was dated June 28, 2017. On the
claimant's appeal before the SHO, the SHO vacated the DHO's order and granted TTD,
finding that the employment offer from the new employer demonstrates that the claimant
did not intend to voluntarily abandon the workforce when she announced her resignation
from employment with the employer on June 20, 2017. The employer eventually filed a
mandamus action in this court, and the matter was heard before a magistrate. The
No. 20AP-139 15
magistrate issued a decision, in which he found the following, in pertinent part:
(1) pursuant to Klein, the claimant's physical capacity to work, whether the claimant is still
disabled at the date of termination, and the claimant's intent to resume work with another
employer are irrelevant to the voluntary abandonment determination; (2) Klein requires
the commission to consider only whether the claimant has voluntarily abandoned her
former position, and not whether she has removed herself from the workforce generally;
(3) Klein repeatedly and expressly refers to abandonment of the previous position held with
the employer that is subject to the claim, without reference to any intent to abandon the
workforce entirely; (4) the commission abused its discretion when it considered the
claimant's continuing physical limitations and employment prospects and awarded TTD to
the claimant for the period after the effective date of her voluntary resignation; and (5) it is
recommended that a writ of mandamus issue ordering the commission to vacate its order
awarding TTD compensation after July 5, 2017, and enter an order awarding such
compensation only up to that date.
{¶ 52} Upon objections, this court affirmed the magistrate's interpretation of Klein.
The court noted several factual similarities between Klein and the case before it and
concluded that, under Klein, the claimant in Pratt was foreclosed from receiving TTD
compensation after she had voluntarily abandoned her position on July 5, 2017. The court
rejected the commission's contention that the claimant did not voluntarily abandon her
position on July 5, 2017. The court also rejected the commission's contention that the
claimant did not voluntarily abandon the workforce based upon the employment offer, and
found that was not the test. Instead, under Klein, a court must look at whether the claimant
voluntarily removed herself from her former position of employment, even if the claimant
remains disabled at the time of her separation from employment. The court found that the
claimant voluntarily removed herself from her former position, despite her injury at the
time of separation from employment. The court explained that, in both Klein and the case
before it, the industrial injury was not the cause of the worker's loss of earnings but, instead,
a voluntary decision to leave their respective places of employment. The court found that
the magistrate's decision accurately reflected the analysis in Klein and applied the phrase
"former position of employment" as intended. The court concluded that, under Klein,
No. 20AP-139 16
employment benefits cannot be provided to a claimant that voluntarily removed herself
from her former position of employment for reasons unrelated to the workplace injury.
{¶ 53} In the present case, the employer first argues that claimant voluntarily
abandoned her job in 2012. The employer contends that claimant was required to respond
to the notice of recall by September 10, 2012, but, instead, she responded on September 11,
2012, and did not circle whether she would accept or reject the recall offer. Thus, the
employer asserts, because claimant failed to accept recall, she voluntarily abandoned her
position of employment with the employer for reasons unrelated to her workplace injury,
thereby preventing her from being eligible for TTD compensation.
{¶ 54} Claimant counters that she did not voluntarily abandon her employment with
the employer in 2012. Claimant contends she was receiving TTD at the time the employer
issued the September 4, 2012, recall letter, and an injured worker cannot abandon a job
while receiving TTD, given she was temporarily, totally unable to engage in her former
position of employment as a cleaner with the employer from the date of her injury until she
was found to have reached MMI on September 3, 2015. In addition, claimant notes that the
employer did not submit the notice of layoff letter or recall letter for either the
administrative hearing or the third-level appeal to the commission; therefore, the criteria
set forth in Industrial Commission Resolution R18-1-06(D)(1) for a reconsideration hearing
were not met, and the commission's denial of the request for reconsideration was proper.
{¶ 55} The commission responds to the employer's voluntary-abandonment
argument by asserting that the SHO specifically stated in her order that she was not
persuaded by the employer's argument because the employer presented no evidence to
establish that claimant voluntarily removed herself from her former position of
employment for reasons unrelated to her workplace injury, noting that, although claimant
did not return to work after the finding of MMI, she did participate in a rehabilitation
program based on the limitations resulting from her allowed physical conditions, thereby
demonstrating she was attempting to return to the workforce in some capacity. The
commission also contends this case is distinguishable from Klein in that, in this case, the
November 20, 2016, vocational rehabilitation assessment report indicated that claimant
had expressed a strong, sincere interest in attempting to return to work, and the May 30,
2018, vocational rehabilitation closure report indicated that while she put in 100 percent
No. 20AP-139 17
effort during her services, she was no longer able to continue with the program or return to
work given her physical limitations and pain. The commission further raises that because
the employer's argument regarding the potential voluntary abandonment in 2012 was not
raised properly before the commission for consideration at either the DHO or SHO hearing,
it should not be considered in mandamus, and for the commission to consider the new
argument upon reconsideration would have violated Resolution R18-1-06(D)(1).
{¶ 56} The magistrate cannot reach the merits of the employer's argument on the
issue of voluntary abandonment in 2012 because the magistrate agrees with claimant and
the commission that the employer's failure to raise this argument and submit to the
commission the notice of layoff letter and the notice of recall letter until the request for
reconsideration is fatal in mandamus. Resolution R18-1-06(D)(1) provides, in pertinent
part:
D. If the requirements of Sections (A) and (B) are satisfied,
hearing officers designated by the Industrial Commission
shall review the request for reconsideration pursuant to the
following criteria:
1. A request for reconsideration shall be considered only in the
following cases:
a. New and changed circumstances occurring subsequent to
the date of the order from which reconsideration is sought.
For example, there exists newly discovered evidence which
by due diligence could not have been discovered and filed
by the appellant prior to the date of the order from which
reconsideration is sought. Newly discovered evidence shall
be relevant to the issue in controversy but shall not be
merely corroborative of evidence that was submitted prior
to the date of the order from which reconsideration is
sought.
{¶ 57} In the present case, the employer clearly was aware of and in possession of
the November 15, 2011, notice of layoff letter and the September 4, 2012, notice of recall
letter since the time they were created, and was also well aware of the circumstances
surrounding her receipt of both letters and the manner in which she completed the notice
of recall letter. As such, neither the letters nor the circumstances surrounding the letters
can constitute new and changed circumstances occurring since the DHO and SHO orders.
See State ex rel. Buzzo v. Indus. Comm., 10th Dist. No. 06AP-95, 2007-Ohio-941, ¶ 53
No. 20AP-139 18
(commission did not abuse discretion in refusing to grant reconsideration when relator
failed to raise an issue in a timely manner before the DHO and SHO). "Reconsideration is
not designed for the convenience of a party who simply fails to raise an issue at the
appropriate opportunity." Id. Therefore, the magistrate finds that the commission did not
abuse its discretion when it failed to grant the employer's request for reconsideration based
upon an argument that was not raised and documents that were not submitted before the
DHO and SHO.
{¶ 58} The employer next argues that claimant voluntarily abandoned the entire
workforce in 2015. The employer contends that Dr. Gruenfeld's June 22, 2015, report
conclusively states that claimant's mental health issues do not prevent her from performing
any remunerative employment, and from June 22, 2015, until November 11, 2016, when
Dr. Richetta diagnosed her with major depressive disorder, claimant failed to seek
employment. In fact, the employer argues, between the last time she worked in 2010 and
her latest TTD application in 2019, claimant made no effort to re-enter the workforce and,
therefore, voluntarily abandoned the entire workforce.
{¶ 59} However, as this court explained in Pratt, any argument as to whether the
claimant intended to voluntarily abandon the entire workforce was irrelevant to the
voluntary-abandonment determination under Klein. The court in Klein made clear that the
test for voluntary abandonment does not involve a question of whether the claimant had
any intent to abandon the workforce entirely but, rather, only whether the claimant
abandoned her previous position held with the employer that is subject to the claim for
reasons unrelated to her workplace injury. Therefore, the magistrate finds the employer's
argument with regard to claimant's voluntary abandonment of the entire workforce without
merit.
{¶ 60} The employer's final argument is that Dr. Kaplan's May 28, 2019, report
makes clear that claimant has been continuously depressed since 2005, five years before
the work injury, and has not developed any new symptoms of major depressive disorder
that would require additional treatment. Thus, Dr. Kaplan found there had not been any
new and changed circumstances warranting another period of TTD that directly and
proximately arose from the substantial aggravation of pre-existing major depressive
disorder or any other allowed conditions in this claim, and, in fact, found substantial
No. 20AP-139 19
aggravation of pre-existing major depressive disorder was at MMI. The employer notes that
Dr. Kaplan explained that, in 2005, claimant's fiancé died, and she has required psychiatric
medications and counseling since that time. She only stopped taking the psychiatric
medications because her health insurance would not cover them, not because her
depressive symptoms resolved. The employer also points to Dr. Kaplan's finding that there
was never a time since 2005 when the major depressive disorder remitted, and she has not
developed any new symptoms of major depressive disorder that would require any
treatment beyond what she has already received since 2005. Dr. Kaplan also diagnosed
claimant with substantial aggravation of pre-existing major depressive disorder directly
and proximately caused by stressors other than her employment, including financial
problems, relationship problems, family deaths, low average intelligence, psychological
trauma due to a miscarriage, hospitalization for hypertension, possible transient ischemic
attack, an attack by wasps, unreported health conditions that prevented her from taking
psychiatric medications, a granddaughter with osteogenesis, and mocking from her family
members.
{¶ 61} Claimant and the commission counter that the commission rejected
Dr. Kaplan's May 28, 2019, report in addressing the motion for TTD filed on March 8, 2019.
Instead, the commission relied on the March 18, 2019, report of Dr. Modrall and the
December 12, 2018, and March 15, 2019, reports of Dr. Yingling to grant the motion for
TTD. Claimant and the commission assert that the June 19, 2019, DHO order and the July
30, 2019, SHO order set forth the evidence the commission relied upon, and the SHO gave
a brief analysis, thereby satisfying the "some evidence" legal standard. Claimant also argues
that: (1) the depression symptoms since 2005, as set forth in Dr. Kaplan's May 28, 2019,
report, would not necessarily bar the commission from granting TTD for the condition of
substantial aggravation of pre-existing major depressive disorder, because the prior
depression symptoms could still be "substantially aggravated"; (2) the newly allowed
condition for substantial aggravation of pre-existing major depressive disorder was
sufficient for new and changed circumstances to support a new period of TTD beginning
May 22, 2017, and the characterization of the depressive disorder as "major" would further
establish new and changed circumstances to warrant TTD; and (3) claimant refuted or
further explained at both administrative hearings the life stressors listed by Dr. Kaplan,
No. 20AP-139 20
and the commission had the discretion to reject Dr. Kaplan's report based upon claimant's
testimony.
{¶ 62} The employer's contentions raise arguable points. Dr. Kaplan's May 28, 2019,
report clearly presents a contrary view of the evidence, a view that contradicts the
commission's finding a new period of TTD based upon new and changed circumstances.
Dr. Kaplan's May 28, 2019, report also presents the type of evidentiary challenges necessary
to support the employer's side of the dispute. However, in this mandamus action, the
question is whether there is "some evidence" to support the commission's determination,
not whether there exists contradictory evidence in the record or conceivable
counterarguments. The present case is not a situation in which there is no evidence to
support the commission's findings; thus, the commission has not abused its discretion.
There exists some evidence in the record to support the commission's conclusion. Both the
DHO and SHO relied upon the reports of Drs. Yingling and Modrall and found them
persuasive. Both found that her newly allowed condition prevented her return to work, and
Dr. Modrall found that the allowance for substantial aggravation of a pre-existing major
depressive disorder was a new and changed circumstance. Although neither Drs. Modrall
nor Yingling went into the level of detailed discussion Dr. Kaplan did in his report, their
reports still provided the commission with "some evidence" upon which to base its
determination, and, as such, there can be no abuse of discretion in this case. Furthermore,
as pointed out by claimant, the fact that she may have had prior depression since 2005 does
not prohibit the current allowed condition and reinstatement of TTD. The claim was
allowed for "substantial aggravation" of pre-existing depression; thus, there could be new
and changed circumstances, despite that prior depression symptoms were present since
2005, because those pre-existing depression symptoms had been substantially aggravated.
The commission was within its discretion to find Dr. Kaplan's report unpersuasive and
apparently did so based upon the competing views expressed by Drs. Modrall and Yingling.
{¶ 63} Accordingly, it is the magistrate's recommendation that this court should
deny the employer's petition for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
No. 20AP-139 21
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).