State ex rel. DeCapua Ents., Inc. v. Wolfe , 2021 Ohio 3987 ( 2021 )

[Cite as State ex rel. DeCapua Ents., Inc. v. Wolfe, 2021-Ohio-3987.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. DeCapua Enterprises, Inc., :
Relator, :
No. 20AP-174
v. :
(REGULAR CALENDAR)
Micaela L. Wolfe et al., :
Respondents. :
D E C I S I O N
Rendered on November 9, 2021
On brief: Michael Soto, for relator.
On brief: Larrimer and Larrimer, and Thomas L. Reitz, for
respondent Micaela L. Wolfe.
On brief: Dave Yost, Attorney General, and Anna Isupova,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BROWN, J.
{¶ 1} Relator, DeCapua Enterprises, Inc., has filed this original action seeking a
writ of mandamus to order respondent, Industrial Commission of Ohio ("commission"), to
vacate an order of its staff hearing officer ("SHO") that awarded temporary total disability
("TTD") compensation to respondent, Micaela L. Wolfe ("Wolfe" or "claimant"), and
authorized payment for additional medical services in connection with Wolfe's allowed
conditions.
No. 20AP-174 2
{¶ 2} This court referred the matter 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, recommending that this court
deny the requested writ.
{¶ 3} Relator has filed objections to the magistrate's decision, arguing the
magistrate erred in: (1) wrongly applying pregnancy discrimination law and overstating the
commission's discretion, (2) misapplying the facts and law regarding the injured worker's
eligibility to receive TTD compensation, (3) ignoring the Supreme Court of Ohio's holding
in State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649 (1994), and (4) accepting the
SHO's approval of an electromyography ("EMG") of the lower extremity.
{¶ 4} We initially address relator's (second) objection challenging the magistrate's
conclusion that the record contains some evidence upon which the commission could rely
to support an award of TTD compensation. Relator contends the medical evidence relied
upon by the commission is contrary to various legal principles, including the failure to
differentiate between allowed and non-allowed conditions and a reliance on internally
inconsistent medical reports.
{¶ 5} Here, the SHO determined the injured worker was experiencing left lower
extremity issues that had worsened in spite of surgery and other treatment modalities. The
SHO noted that, after Wolfe's "initial surgery in April, 2017, the Injured Worker developed
Left Lower Extremity DVT, which is an allowed condition in this claim." (SHO Order at 2.)
The SHO further found that, despite being initially released to return to work, Wolfe's lower
left extremity issues "continued and worsened, causing her to seek treatment at the
emergency room on 05/01/2017." (SHO Order at 2.)
{¶ 6} In granting the claimant's request for TTD compensation, the order of the
SHO cited the evidence relied on, including: (1) a C-9 dated 1/29/2019 from Dr. Jonathan
Feibel (the physician who performed surgery on claimant in 2017), (2) a treatment note,
dated 1/28/2019, from Lacie Baker, PA-C (noting in part "[l]eft ankle swelling" and "pain
over the peroneal tendons on the left," as well as a physician's statement to Baker that MRI
findings indicated "some of the signal in the tendons could be scarring from the previous
surgery but some however could be new tearing at the tendon"), (3) the January 11, 2019
MRI Interpretive Report (noting split-tear of the tendon), (4) the 2/20/2019 MEDCO-14 of
No. 20AP-174 3
Dr. Feibel, and (5) three MEDCO-14 forms completed by Dr. Jason A. Reed, dated
respectively 6/25/2019, 10/16/2019 and 1/2/2020, indicating Wolfe's conditions of
peroneal tendon tear and sprain of left ankle were conditions causing temporary disability.
{¶ 7} The decision of the magistrate sets forth detailed findings of fact based on the
stipulated record, including the finding that, in the interim between the claimant's appeal
of the order of the district hearing officer and the hearing before the SHO, "Wolfe
underwent further examination by Dr. Reed, who summarized his treatment with the
conclusion that Wolfe's symptoms had worsened since her surgery." (Appended Mag.
Decision at ¶ 47.) In addressing the "conflicting evidence" with respect to Wolfe's medical
treatment and the conclusions of the examining physicians, the magistrate concluded the
commission had full discretion to rely on the reports of Drs. Reed and Feibel (in favor of
those offered by Dr. Michael Rozen and Dr. Paul Freedman), and to rely on Dr. Reed's
"continued assessment that Wolfe could not return to work based upon the allowed
conditions." (Appended Mag. Decision at ¶ 60.)
{¶ 8} On review, we conclude, as did the magistrate, there was some medical
evidence supporting the commission's conclusion that Wolfe was unable to return to work
due to her allowed conditions. Accordingly, we find unpersuasive relator's contention the
magistrate misapplied the facts and law in addressing the commission's decision to award
the claimant TTD compensation, and we overrule relator's second objection.
{¶ 9} Under its third objection, relator contends the magistrate ignored the
Supreme Court's decision in Eberhardt. Specifically, relator cites language from that
decision indicating the commission's discretion in determining the weight and credibility
of the medical reports admitted into evidence "is not unbounded," and that "there must be
some reasonable basis for the commission's rejection of a physician's finding." Eberhardt
at 655. According to relator, the rejection of the reports of Drs. Rozen and Freedman are
violative of Eberhardt because, unlike the evidence cited by the SHO, "the opinions of these
physicians are supported by the facts and Stipulated Evidence." (Relator's Objs. at 14.)
{¶ 10} In context, the passages cited by relator address the Supreme Court's
recognition that "contradictory or equivocal statements by the same physician cannot, as a
matter of law, support an award of compensation," Eberhardt at 656, and that "equivocal
medical opinions are not evidence." Id. at 657. This court has recognized that Eberhardt
No. 20AP-174 4
itself "merely stands for the proposition that, 'where a physician renders an ambiguous
opinion regarding a claimant's medical condition but thereafter clarifies the ambiguity, the
Industrial Commission may not revive the ambiguity as a basis for rejecting the physician's
opinion.' " State ex rel. Ward v. Dorman Prods., 10th Dist. No. 05AP-28, 2005-Ohio-5425,
¶ 4, quoting Eberhardt at paragraph two of the syllabus.
{¶ 11} While the magistrate in this action acknowledged the record was "replete
with conflicting evidence," the magistrate further recognized the commission "remains the
arbiter of weight and probative value of such evidence," and that it was not the magistrate's
role in a mandamus action to "reweigh the evidence" and reject the reports of Drs. Reed
and Feibel in favor of those of Drs. Freedman and Rozen. (Appended Mag. Decision at
¶ 60.) We agree and find unpersuasive relator's contention that the reports relied on by the
SHO, and discussed by the magistrate, run contrary to the holding in Eberhardt. Finding
no merit with relator's argument, we overrule the third objection.
{¶ 12} Under its first objection, relator contends the magistrate erred in considering
state and federal pregnancy discrimination law when addressing the issue of voluntary
abandonment. Relator notes the magistrate raised pregnancy discrimination related
concerns in the context of analyzing the Supreme Court's decision in State ex rel. Klein v.
Precision Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890, ¶ 29, in which
the Supreme Court overruled two prior decisions (State ex rel. Reitter Stucco, Inc. v. Indus.
Comm., 117 Ohio St.3d 71, 2008-Ohio-499, and State ex rel. OmniSource Corp. v. Indus.
Comm., 113 Ohio St.3d 303, 2007-Ohio-1951), and held in part: "[W]hen 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
temporary-total-disability compensation, even if the claimant remains disabled at the time
of his separation from employment."
{¶ 13} Relator maintains none of the parties in the instant action "ever grounded its
position" on the injured worker's pregnancy, and that "any discussion or application of
pregnancy discrimination law is irrelevant to the issue before the Court." (Relator's Objs.
at 5-6.) Relator further contends the SHO's conclusion that Wolfe had not abandoned the
workforce is not supported by any evidence.
No. 20AP-174 5
{¶ 14} While we do not find the magistrate's analysis of pregnancy discrimination
law dispositive, we disagree with relator's argument that there is no evidence to support the
SHO's finding Wolfe had not abandoned the workforce. In this respect, the magistrate
noted the commission "addressed the question of voluntary abandonment and assessed the
evidence addressing the interplay between physical impact of the allowed conditions and a
subsequent pregnancy in weighing whether one or the other had prevented Wolfe from
returning to work." (Appended Mag. Decision at ¶ 74.) We agree, and find the record
supports the commission's rejection of relator's assertion that claimant voluntarily
abandoned her employment.
{¶ 15} Here, while the SHO recognized the fact "the Injured Worker was pregnant
and did have a baby," the SHO further concluded "her issues due to surgery, but occurring
before her pregnancy[,] are documented in the claim file." (SHO Order at 2.) In support of
the determination Wolfe had not voluntarily abandoned the workforce based on worsening
medical issues due to surgery, the SHO cited the evidence relied on including the treatment
note of Natalie Wyss, PA-C, the treatment report of Lacie Baker, PA-C, as well as the initial
report of Dr. Reed.
{¶ 16} While we find the magistrate's discussion of state and federal discrimination
law unnecessary to the issues presented, we agree with the magistrate's ultimate conclusion
there was some evidence to support the SHO's determination that Wolfe's absence from her
former position of employment was related to her allowed conditions (and therefore the
commission did not abuse its discretion in rejecting relator's voluntary abandonment
argument). We therefore sustain relator's first objection to the limited extent we do not
adopt the portion of the magistrate's conclusions of law addressing federal and state
pregnancy discrimination law, but we otherwise overrule the objection.
{¶ 17} In its final objection, relator contends the magistrate erred in accepting the
SHO's approval of the EMG of the lower extremity. The SHO granted the request for an
EMG, finding it "reasonable, necessary and appropriate for management of the allowed
conditions," and further noting "the Injured Worker is experiencing left lower extremity
issues which have worsened, in spite of surgery and other treatment modalities being
performed." (SHO Order at 1.) Relator's objection on this point reiterates the same
argument presented and rejected by the magistrate (i.e., relator's claim that the
No. 20AP-174 6
commission's approval of the EMG violated the three-prong test in State ex rel. Miller v.
Indus. Comm., 71 Ohio St.3d 229 (1994)). The magistrate addressed and rejected that
argument, deeming it an invitation to "reweigh the medical opinion evidence that the
requested EMG was medically necessary and related to the allowed conditions."
(Appended Mag. Decision at ¶ 61.) Finding no error with determination, we overrule
relator's fourth objection.
{¶ 18} Following an independent review of this matter, we find the magistrate has
properly determined the facts and we adopt the magistrate's findings of fact. We also adopt
the magistrate's conclusions of law except for the discussion as to federal and state
pregnancy discrimination law. For the reasons set forth above, we sustain in part and
overrule in part relator's first objection, and we overrule relator's second, third, and fourth
objections. In accordance with the magistrate's recommendation, we deny relator's request
for a writ of mandamus.
Objections sustained in part and overruled in part;
writ of mandamus denied.
DORRIAN, P.J., and MENTEL, J., concur.
______________
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. DeCapua Enterprises, Inc., :
Relator, :
v. : No. 20AP-174
Micaela L. Wolfe et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
No. 20AP-174 7
Rendered on March 16, 2021
Michael Soto, for relator.
Larrimer and Larrimer, and Thomas L. Reitz, for respondent
Micaela L. Wolfe.
Dave Yost, Attorney General, and Douglas R. Unver, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 19} Relator, DeCapua Enterprises, Inc., brings this original action seeking a writ
of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate an order of the commission staff hearing officer ("SHO") that awarded temporary
total disability ("TTD") compensation to respondent Micaela L. Wolfe and authorized
payment for additional medical services in connection with Wolfe's allowed conditions.
Findings of Fact:
{¶ 20} 1. DeCapua is a temporary staffing service that participates in Ohio's
workers' compensation system as a self-insured employer.
{¶ 21} 2. DeCapua employed Wolfe and, for the period relative to the claim at issue,
assigned Wolfe as an optical lab technician to a facility in Lockbourne, Ohio. (Stip. at 1.)
{¶ 22} 3. Leaving a work-related meeting on September 27, 2016 at the facility
where she was assigned, Wolfe slipped on a wet floor, and suffered leg injuries. (Stip. at 1,
16, 75, 104, 112, 137.)
{¶ 23} 4. DeCapua initially certified Wolfe's claim which was allowed for "Sprain
Left Ankle [], Contusion Right Knee [], Left Ankle Peroneal Tendon Tear." (Stip. at 14.)
{¶ 24} 5. DeCapua's complaint alleges that DeCapua commenced paying TTD
benefits to Wolfe for the period from September 28, 2016 to February 1, 2018. (Complaint
at 2.).
{¶ 25} 6. Orthopedist Jonathan B. Feibel, M.D., examined Wolfe and produced a
report dated December 20, 2016. (Stip. at 16.) Dr. Feibel reviewed an MRI and found it
No. 20AP-174 8
consistent with left peroneal tendinitis and peroneal tendon tearing. He proposed use of
an immobilizing boot followed by review of surgical options after four weeks. (Stip. at 16.)
{¶ 26} 7. On January 17, 2017, Laci Baker, a physician assistant in Dr. Feibel's office,
signed a report with the following recommendation:
Patient has failed conservative treatment and therefore I have
recommended surgical intervention which would include
peroneal tendon debridement with repair. I discussed with
the patient the risks, benefits and complications of the
surgery. She understands these risks and wishes to proceed
therefore we will ask for approval through BWC and schedule
it in the near future. She will followup [sic] postoperatively.
She will call if any problems arise in the interim.
(Stip. at 18.)
{¶ 27} 8. Dr. Feibel performed surgery on April 5, 2017. (Stip. at 22.) Surgery
included resolution of "a very complex tendon tear" and debridement. (Stip. at 22-23.)
{¶ 28} 9. Dr. Feibel certified Wolfe temporarily and totally disabled after the
surgery. (Stip. at 28-29.)
{¶ 29} 10. Wolfe experienced post-surgery calf pain and underwent a veinous
duplex exam on April 11, 2017 which revealed acute deep vein thrombosis of the left
peroneal vein. (Stip. at 30-32, 36.)
{¶ 30} 11. DeCapua additionally recognized Wolfe's claim for deep vein thrombosis,
lower left extremity. (Stip. at 148.)
{¶ 31} 12. On July 14, 2017, Dr. Feibel's physician assistant recommended that
Wolfe commence physical therapy, and Dr. Feibel again certified Wolfe temporarily and
totally disabled. (Stip. at 53-56.)
{¶ 32} 13. On December 22, 2017, Dr. Feibel again examined Wolfe, who reported
ongoing pain in her left ankle, associate bruising, and red blotchy skin. Dr. Feibel observed
that Wolfe reported pursuing her physical therapy and that she reported being six months
pregnant. (Stip. at 58.) Dr. Feibel's diagnosis continued to be sprain of unspecified
ligaments in the left ankle and peroneal tendonitis of the left leg. Dr. Feibel recommended
continuing physical therapy and expressed concern that Wolfe had developed reflex
sympathetic dystrophy ("RSD") in her left ankle.
No. 20AP-174 9
{¶ 33} 14. Wolfe underwent a functional capacity evaluation ("FCE") on
January 19, 2018. Kevin Jones, physical therapist, reported to Dr. Feibel as follows:
The above-referenced client was referred to our facility for a
functional capacity evaluation which was conducted on
January 19, 2018. The results of the evaluation are contained
in the attached report. The XRTS FCE testing system consists
of multiple components which rely on distraction-based
testing methods during repeated observations to assist in the
classification of effort.
Testing was performed per the request of the referral source
to determine maximum abilities.
A summary of the findings are as follows:
Result:
The overall classification of effort is Invalid due to the client,
Micaela Queen, performing inconsistently during a
repeated measures protocol.
Maximum weight achieved to waist height = B 29.16 lbs.;
Rt 29.16 lbs.; Lt 29.16 lbs.
The client failed to give maximum voluntary effort during
today's FCE. Therefore, it is undeterminable at this time safe,
maximum lifting capabilities and/or other functional
capabilities.
Reasoning for Invalid Categorization
There is an absence of correlation between lifts of unmarked
steel bars and the corresponding lifts on the XRTS Lever Arm.
Overall Percent Change = 43.0%
Additional Supportive Reasoning for Invalid
Categorization
Breakaway/Cogwheeling was observed during the manual
muscle testing.
High pain reports during and/or following FCE are
inconsistent with minimal or no demonstrated pain
behaviors.
(Emphasis sic.) (Stip. at 60.)
No. 20AP-174 10
{¶ 34} 15. Based in part on the FCE report, Dr. Feibel's office, over the signature of
Natalie Wyss, physician assistant, produced a report of work ability dated February 2, 2018,
releasing Wolfe to full duty without restrictions effective immediately. (Stip. at 72-73.)
{¶ 35} 16. On February 12, 2018, Michael Rozen, M.D., examined Wolfe on behalf
of DeCapua. Dr. Rozen reported that Wolfe informed him that she was 35 weeks pregnant,
was not undergoing active treatment for her workplace injury, and had not scheduled
follow-up appointments until conclusion of her pregnancy. Dr. Rozen opined that Wolfe
had reached maximum medical improvement ("MMI") on her allowed conditions. (Stip. at
81.)
{¶ 36} 17. Wolfe then underwent a further examination at Dr. Feibel's office on
April 23, 2018. Physician Assistant Wyss opined that the office would seek an additional
MRI examine to evaluate Wolfe's injuries prior to determining if the office agreed with Dr.
Rozen's MMI determination. (Stip. at 84.) Dr. Feibel did not issue a new opinion at this
time to contravene his February 2, 2018 release to work.
{¶ 37} 18. The commission eventually granted authorization for the requested MRI
examination. (Stip. at 102-03.)
{¶ 38} 19. Wolfe applied for a permanent partial disability ("PPD") award on
August 16, 2018 and the commission eventually granted ten percent PPD. (Stip. at 94, 158-
59.)
{¶ 39} 20. Wolfe underwent an MRI on January 11, 2019. The radiologist's report
stated as follows:
[One] There are MRI findings most compatible with a
longitudinal split-tear of the retromalleolar and
inframelleolar portion of the peroneus brevis tendon
spanning approximately 3 cm in length. This is not associated
with any significant tenosynovitis and is of uncertain clinical
significance. There is probable postoperative scarring
involving the superior peroneal retinaculum. The peroneus
longus tendon appears grossly within normal limits allowing
for susceptibility artifact from postsurgical changes in the
retromalleolar and inframalleolar region.
[Two] No ligament injury or osteochondral defect is seen.
(Stip. at 111.)
No. 20AP-174 11
{¶ 40} 21. Dr. Feibel examined Wolfe again on January 28, 2019 and recommended
further treatment including an updated EMG study to evaluate for RSD. (Stip. at 115.)
Based on this examination and the prior MRI, Wolfe filed on March 6, 2019 (signature date
February 28, 2019) a motion for further treatment and referral, and for TTD compensation
for the period January 28 to April 1, 2019. (Stip. at 120-21.) DeCapua opposed the motion.
(Stip. at 128.) Dr. Feibel produced a February 20, 2019 work ability report at this time
which is illegible in the record but the parties treat in argument as supporting the TTD
application. (Stip. at 118-19.)
{¶ 41} 22. Paul Freedman, M.D., examined Wolfe on March 29, 2019 and reviewed
her records, issuing a report dated July 30, 2019. Dr. Freedman concluded that the
requested services were directed at non-allowed conditions, including chronic regional pain
syndrome ("CRPS," the alternative term for RSD previously discussed in the file), that the
allowed conditions had resolved, and that light-duty restrictions proposed by Dr. Feibel
were inconsistent with his findings. (Stip. at 138-39.)
{¶ 42} 23. Wolfe submitted a BWC notice of change of treating physician of record
on June 24, 2019. The form does not specify a previous treating physician and identifies
the new physician as Jason A. Reed, D.O. (Stip. at 134.)
{¶ 43} 24. Wolfe was examined by Dr. Reed on June 24, 2019. (Stip. at 131-33.) Dr.
Reed produced a work ability report dated June 25, 2019, stating: "Patient will continue
off work until EMG and follow up is completed." (Stip. at 135-36.)
{¶ 44} 25. Dr. Reed produced another work ability report dated October 16, 2016
with the same conclusion, pursuant to an exam conducted on October 14, 2019. (Stip. at
154-57.) Dr. Reed reported his impression from this exam as "[s]train of muscle(s) and
tendon(s) of peroneal muscle group at lower leg level; left leg * * * [s]prain of unspecified
ligament of left ankle. * * * Patient states 2 weeks ago fell due to knee giving out and ankle
went numb. At this time patient is to continue off work. Patient has EMG hearing next week.
We will see patient back after hearing." (Stip. at 155.)
{¶ 45} 26. Dr. Freedman updated his report with an addendum dated November 1,
2019 addressing Dr. Reed's office notes, and opposing Dr. Reed's recommendation for
further testing because Dr. Freedman deemed these tests directed at non-allowed
No. 20AP-174 12
conditions. Dr. Freedman continued to opine that the allowed conditions had resolved.
(Stip. at 160-63.)
{¶ 46} 27. Pursuant to DeCapua's opposition to Wolfe's various motions, a district
hearing officer ("DHO") issued an order November 5, 2019 denying Wolfe's application for
TTD for the closed period of January 28 to April 1, 2019, and June 24, 2019 through the
date of hearing. (Stip. at 165-67.) The DHO also denied Wolfe's request for authorization
of a further EMG of her left leg. The DHO further summarized Wolfe's testimony at the
hearing as follows:
[T]he Injured Worker testified that she did not return to work
in February 2018, noting that she was eight months pregnant
at the time and stating that no one would hire a woman who
was eight months pregnant. The Injured Worker testified
further that she gave birth in March 2018 and since that time
has been a stay-at-home mother. The Injured Worker testified
further that she has not returned to work or looked for work
since March 2018, as she does not feel capable of returning to
any employment due to her allowed left lower extremity
conditions. Despite this testimony, the District Hearing
Officer finds insufficient persuasive medical proof on file of
any vocational restrictions caused by the allowed conditions
between 02/03/2018 and 01/27/2019. Based upon these
factors, the District Hearing Officer is persuaded by the
Employer's argument, presented by counsel at hearing, and
finds that the Injured Worker has abandoned the workforce
and is thus ineligible for temporary total disability
compensation. These findings are also based upon the
Employer's C-256 Self-Insuring Employer Notice and Request
for Information for C-92/C-92A Application filed 08/27/2018
and Adjudications Before the Ohio Industrial Commission
Memo D5.
Authorization is denied for a left lower extremity EMG. The
District Hearing Officer finds that the requested left lower
extremity EMG is not related to, reasonable or necessary for
treatment of the allowed conditions of the claim, or for
diagnostic purposes under the claim. The District Hearing
Officer finds that when the Injured Worker was evaluated by
Lacie Baker, P.A., on 12/22/2017, she was concerned that the
Injured Worker had developed reflex sympathetic dystrophy
in the left ankle. The District Hearing Officer finds that by the
time the Injured Worker was evaluated by Ms. Baker on
01/26/2019, she found that most of the Injured Worker's pain
No. 20AP-174 13
was related to her reflex sympathetic dystrophy and
recommended the updated EMG study to evaluate for that
reflex sympathetic dystrophy. Therefore, the District Hearing
Officer finds that the Injured Worker's present complaints
and examination findings are causally unrelated to the
allowed industrial incident of 09/27/2016. These findings are
also based upon Dr. Freedman's reports dated 07/30/2019
and 11/01/2019.
(Stip. at 166.)
{¶ 47} 28. Wolfe appealed the DHO's order and the appeal was scheduled for
hearing before an SHO. In the interim, Wolfe underwent further examination by Dr. Reed,
who summarized his treatment with the conclusion that Wolfe's symptoms had worsened
since her surgery, and that Wolfe had not developed CRPS due to her pregnancy but rather
due to a buildup of scar tissue due to injury and surgery in connection with the allowed
conditions. (Stip. at 169-70.)
{¶ 48} 29. Dr. Reed completed a Physician's Report of Work Ability dated
January 2, 2020, and certified that Wolfe was temporarily and totally disabled for the
period of December 23, 2019 through February 24, 2020 and should remain off work due
to pain. (Stip. at 173-74.)
{¶ 49} 30. The SHO issued an order mailed January 22, 2020 vacating the DHO's
order and awarding TTD and approving an EMG of the left lower leg. (Stip. at 177.) The
SHO found that Wolfe had not voluntarily abandoned her employment, and ultimately was
not working because of the evolving and worsening allowed conditions: "While the Injured
Worker was initially released to return to * * * work approximately 10 weeks after surgery,
the Injured Worker's lower left extremity issues continued and worsened, causing her to
seek treatment at the emergency room on 05/01/2017." (Stip. at 178.) The SHO further
noted, as had the DHO, that Wolfe had not returned to work after February 2, 2018. (Stip.
at 178.)
{¶ 50} The SHO's report relied on Dr. Feibel's work ability report dated February 20,
2019, the treatment notes of Physician Assistant Wyss dated April 23, 2018, the treatment
notes of Physician Assistant Baker dated January 28, 2019, the results of the MRI reported
No. 20AP-174 14
on January 11, 2019, the June 24, 2019 initial examination report from Dr. Reed, and Dr.
Reed's work ability reports. (Stip. at 177.)
{¶ 51} The SHO addressed DeCapua's voluntary abandonment arguments as
follows:
The Hearing Officer further finds that the Injured Worker was
last paid temporary total compensation through 02/02/2018
and has not returned to work. The Hearing Officer notes that
* * * on that date the Injured Worker was 8 months pregnant
and that she gave birth in March, 2018. However, the Hearing
Officer does not find persuasive the employer's counsel's
assertion that the Injured Worker voluntarily abandoned her
employment and is therefore not entitled to temporary total
compensation. While it is well taken that the Injured Worker
was pregnant and did have a baby, her issues due to surgery,
but occurring before her pregnancy are documented in the
claim file and noted above.
(Stip. at 178.)
{¶ 52} 31. DeCapua filed an appeal from the SHO's order, which the commission
refused. (Stip. at 242.)
{¶ 53} 32. DeCapua then moved for reconsideration of the commission's refusal,
and by decision mailed March 17, 2020, the commission advised that it had failed to reach
a majority decision with one commissioner abstaining, one commissioner opposed, and
one supporting the request for reconsideration. Under the rules of the commission, the
SHO's order stood undisturbed. (Stip. at 310-12.)
{¶ 54} 33. DeCapua filed its complaint in mandamus with this court on March 23,
2020. The matter was duly briefed and argued before the magistrate on December 4, 2020,
at which time the magistrate requested additional briefing from the parties due to the
intervening enactment of S.B. 81, which addresses the law in Ohio governing voluntary
abandonment of employment. Counsel have furnished the requested additional briefing.
Discussion and Conclusions of Law:
{¶ 55} DeCapua seeks a writ addressing the commission's award of TTD
compensation and approval of additional treatment in the form of an EMG of the lower left
leg.
No. 20AP-174 15
{¶ 56} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel. Elliott
v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record contains
some evidence to support the commission's findings, there has been no abuse of discretion
and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio
St.3d 56 (1987). Furthermore, questions of credibility and the weight to be given evidence
are clearly within the discretion of the commission as fact finder. State ex rel. Teece v.
Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 57} TTD compensation awarded pursuant to R.C. 4123.56 is compensation for
wages lost when a claimant's injury prevents a return to the former position of employment.
TTD compensation shall be paid to a claimant until one of four things occurs: (1) the
claimant resumes work; (2) the claimant's treating physician provides a written statement
that claimant is able to return to the former position of employment or comparable work;
(3) work within the capabilities of the claimant is made available by the employer or another
employer; or (4) the claimant reaches maximum medical improvement. R.C. 4123.56(A);
State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982); State ex rel. Cugini v.
Timken Co., 10th Dist. No. 18AP-261, 2019-Ohio-3013, ¶ 25. In some cases, however, a
worker's own actions, rather than the allowed conditions, may result in the worker's not
being able to return to the workforce. State ex rel. Rockwell Internatl. v. Indus. Comm.,
40 Ohio St.3d 44 (1988). "In such cases, the injured worker is said to have voluntarily
abandoned his former position of employment, thereby precluding his eligibility for TTD."
State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376, 379-80 (2000). Thus, a claimant's
complete abandonment of the entire workforce precludes the payment of TTD
compensation altogether. State ex rel. Honda of Am. Mfg. v. Indus. Comm., 10th Dist. No.
11AP-528, 2012-Ohio-3335, ¶ 34, citing State ex rel. Jones & Laughlin Steel Corp. v. Indus.
Comm., 29 Ohio App.3d 145 (10th Dist. 1985), and Baker.
No. 20AP-174 16
{¶ 58} In arguing against the award of TTD in this case, DeCapua relies both on the
concept of voluntary abandonment of employment and the premise that Wolfe did not meet
her evidentiary burden of furnishing competent medical evidence of continuing TTD as
required by Ohio Adm.Code 4123-5-18(D). The magistrate notes at this point that the
commission has never held that Wolfe has reached MMI, despite the medical evidence to
that effect provided by Dr. Rozen.
{¶ 59} DeCapua argues the SHO erred in relying on Dr. Feibel's January 28, 2019
report, Physician Assistant Baker's office notes from the January 28, 2019 examination,
and the left ankle MRI of January 11, 2019 in approving a further EMG test for Wolfe.
DeCapua posits that Dr. Feibel is no longer Wolfe's physician of record after June 24, 2019
when she submitted her change of physician form and began seeing Dr. Reed. DeCapua
then asserts that Dr. Reed has never specifically requested the left-leg EMG approved by
the SHO, because Dr. Reed actually favored a bilateral lower extremity EMG. (Stip. at 131-
33.) DeCapua also points out that office notes of Physician Assistant Baker stated that
Wolfe's pain was related to her possible RSD, which was a non-allowed condition, and that
the requested EMG was therefore not related to an allowed condition. Finally, DeCapua
points out that Dr. Freedman's report was far more detailed and specific in opposing
approval of the EMG because the test was directed at non-allowed conditions.
{¶ 60} DeCapua points out that Dr. Feibel had released Wolfe to full duty on
February 2, 2018, ten months after surgery and nine months after the May 1, 2017
emergency room visit that revealed the deep vein thrombosis. DeCapua points out that the
record contains no medical discussion or evidence related to the deep vein thrombosis after
Dr. Feibel's full-duty release on February 2, 2018. With respect to the state of the evidence
regarding Wolfe's medical treatment and conclusions of examining physicians that Wolfe
was incapable of returning to her former position, the record is certainly replete with
conflicting evidence, but the magistrate notes that the commission remains the arbiter of
weight and probative value of such evidence, and it is not the magistrate's role in a
mandamus action to reweigh the evidence and reject Drs. Reed and Feibel's reports in favor
of those of Drs. Freedman and Rozen. The commission had full discretion to rely on Dr.
Reed's continued assessment that Wolfe could not return to work based upon the allowed
conditions.
No. 20AP-174 17
{¶ 61} Turning to the commission's authorization of treatment in the form of an
EMG of the lower left leg, there is a three-prong test for authorization of most medical
services in connection with a claim: (1) are the medical services reasonably related to the
allowed conditions; (2) are the medical services reasonably necessary for treatment of the
allowed conditions; and (3) is the cost of the medical services reasonable in relation to the
medical benefit thereof. State ex rel. Miller v. Indus. Comm., 71 Ohio St.3d 229, 232 (1994).
Only the latter two factors are argued here. Again, the magistrate is not permitted to
reweigh the medical opinion evidence that the requested EMG was medically necessary and
related to the allowed conditions.
{¶ 62} DeCapua finally argues that, if medical evidence supports TTD, Wolfe has lost
her claim to such compensation because she has voluntarily abandoned the workforce.
Wolfe's testimony before the DHO that she had not worked anywhere after September 27,
2016 is not rebutted or opposed in this case. The question when assessing the propriety of
TTD is whether Wolfe had voluntarily abandoned the workforce due to her pregnancy. The
SHO concluded otherwise, finding that Wolfe's condition worsened due to ongoing tendon
issues after surgery and the additionally allowed condition of deep vein thrombosis.
{¶ 63} Ohio's governing case law for voluntary abandonment in TTD cases has been
unsettled in recent years. In response, the Ohio legislature then passed H.B. No. 81, which
modified R.C. 4123.56 by adding the following entirely new language:
(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.
(Emphasis added.) R.C. 4123.56(F), effective Sept. 15, 2020.
{¶ 64} The first question to resolve in a voluntary abandonment case is a
determination of the governing law, since the legal standards for TTD eligibility may be
drawn from recent Supreme Court of Ohio cases, or to the contrary H.B. 81's new language
No. 20AP-174 18
that expressly supersedes those cases. Although the outcome in the present matter might
not vary, the choice of law is still a threshold issue. The parties, as requested by the
magistrate, have provided well-reasoned additional briefing and agree that H.B. 81 does
not apply here, and the magistrate also agrees as discussed below.
{¶ 65} The retroactive validity of new R.C. 4123.56(F) has yet to be examined by the
judges of this court. In reviewing such legislative enactments, this court therefore
undertakes review as a matter of first impression. State v. Consilio, 114 Ohio St.3d 295,
2007-Ohio-4163, ¶ 8. R.C. 1.48 provides: "A statute is presumed to be prospective in its
operation unless expressly made retrospective." See Van Fossen v. Babcock & Wilcox Co.,
36 Ohio St.3d 100, 105 (1988). While Article II, Section 28 of the Ohio Constitution
prohibits the retroactive impairment of vested substantive rights, the General Assembly
may make retroactive any legislation that is merely remedial in nature. Consilio at ¶ 9,
citing State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, ¶ 13, and State ex rel.
Slaughter v. Indus. Comm., 132 Ohio St. 537, 542 (1937). Thus, courts apply a two-part
test to evaluate whether statutes may be applied retroactively. First, the court determines
as a threshold matter whether the statute is expressly made retroactive. Consilio at ¶ 10,
citing LaSalle at ¶ 14, citing Van Fossen, 36 Ohio St.3d 100, at paragraphs one and two of
the syllabus. Then, if the statute is clearly intended to be retroactive, the court determines
under the Ohio Constitution whether the statute is substantive or remedial, and if
retroactive application impairs a vested contractual right. Consilio at ¶ 10, citing LaSalle
at ¶ 14; Hope Academy Broadway Campus v. State Dept. of Edn., 10th Dist. No. 07AP-
758, 2008-Ohio-4694, ¶ 11-12.
{¶ 66} Applying principles of judicial restraint, the magistrate applies the above test
only to the specific facts and posture of the present case: does the statute apply to TTD
awards in which both the injury and a final adjudication by the commission occurred before
the effective date of the new law?
{¶ 67} The magistrate concludes that the first factor is not met in the present case
because the legislature did not clearly express an intent for the new language of
R.C. 4123.56(F) to apply retroactively. The statute does specify that it is intended to
supersede past judicial decisions on the question, and those past decisions are therefore a
nullity going forward. The statute does not expressly say that it must be applied to cases
No. 20AP-174 19
currently under consideration but on facts arising before enactment of the statute, or that
past cases decided under former law are now wrongly decided. In the absence of such
specific language, the strong presumption against retroactivity must be applied. "[T]he
presumption against retroactive legislation is deeply rooted in our jurisprudence, and
embodies a legal doctrine centuries older than our Republic." State v. Walls, 96 Ohio St.3d
437, 2002-Ohio-5059, ¶ 9, quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994).
{¶ 68} Even if the statute were taken as retroactive, it would not conform to the
constitutional limitation. A statute is impermissibly retroactive in effect if it takes away or
impairs rights that vested or accrued before the statute came into force, or it attaches a new
disability in respect to past transactions or considerations. State ex rel. Matz v. Brown, 37
Ohio St.3d 279, 281 (1988). "A statutory provision that attaches a new disability to a past
transaction or consideration is not invalid unless the past transaction or consideration is
not invalid unless the past transaction or consideration created at least a 'reasonable
expectation of finality.' " Hope Academy, at ¶ 12, quoting Matz at 281. While there is little
precedent addressing the question, there is no reason to doubt that an award of TTD reflects
a substantive right. The commission decided that right under the governing law as it
perceived it, DeCapua initiated the present action with similar expectations, and the parties
have argued the matter accordingly. To apply new statutory law midstream would work
more than a remedial change to the law.
{¶ 69} The present matter will therefore be decided under the most recent
controlling case from the Supreme Court of Ohio. An older line of cases from the Supreme
Court states that, when a claimant was disabled at the time of retirement, resignation, or
other termination of employment, the inability to work due to allowed conditions was the
essential factor, and overrode any facially voluntary aspect of the subsequent
unemployment. State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-
Ohio-499; State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5 (1996). In other
words, "a claimant can abandon a former position of employment only if the claimant was
physically capable of doing that job at the time of the alleged abandonment." State ex rel.
OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951, citing Pretty
Prods. Under this line of cases, even if the abandonment appeared voluntary, there would
No. 20AP-174 20
still be a consideration of the degree of disability at the date of termination. Reitter Stucco
at ¶ 11, citing Pretty Prods.
{¶ 70} However, in State ex rel. Klein v. Precision Excavating & Grading Co., 155
Ohio St.3d 78, 2018-Ohio-3890, ¶ 17, decided September 27, 2018 (and therefore prior to
the commission's final order in the present case), the Supreme Court expressly overruled
its prior decisions in Reitter Stucco and OmniSource, and partially overruled Pretty Prods.,
finding those decisions were unworkable in application and led to disparate results. The
Supreme Court also concluded that its prior decisions improperly contradicted the
fundamental legislative tenet of eligibility for TTD compensation: the industrial injury
must be the cause of the worker's loss of earnings. Klein at ¶ 18. The court in Klein installed
a bright-line test that applies to bar TTD in cases of voluntary abandonment, without
reference to the claimant's physical ability to work. This test would apply across all
circumstances, whether the purportedly voluntary abandonment of the worker's position
resulted from termination of employment for violation of work rules that clearly define a
dischargeable offense, from incarceration, or from retirement. Id. at ¶ 19.
{¶ 71} As discussed above, the magistrate concludes that the commission's finding
of Wolfe's ongoing inability to work caused by the allowed conditions is supported by some
evidence and may not be set aside by a writ. As a result, Wolfe may only be denied TTD if,
by becoming pregnant, she voluntarily abandoned the workforce. Klein, however, has
never been applied in a case in which pregnancy is advanced as the intervening event that
demonstrated voluntary abandonment. The magistrate concludes that pregnancy is not
properly assimilated to the other types of conduct that constitute voluntary abandonment
in most Klein cases: incarceration, retirement, relocation, terminable safety violations, or
intervening non-allowed medical conditions are qualitatively different. More conclusively,
a bare Klein analysis is impermissible in pregnancy situations because it runs afoul of
federal and Ohio law prohibiting discrimination on the basis of sex and pregnancy.
{¶ 72} Among many other prohibitions, Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e et seq., prohibits employers from taking adverse employment action on the
basis of sex. 42 U.S.C. 2000e(2)(a)(1). The federal Pregnancy Discrimination Act ("PDA")
added in 1978 a provision to Title VII’s definitions section: "The terms 'because of sex' or
'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy,
No. 20AP-174 21
childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or
related medical conditions shall be treated the same for all employment-related purposes *
* * as other persons not so affected but similar in their ability or inability to work * * *." 42
U.S.C. 2000e(k). "The most natural way to understand the same-treatment clause is that
an employer may not distinguish between pregnant women and others of similar ability or
inability because of pregnancy. Here, that means pregnant women are entitled to
accommodations on the same terms as other workers with disabling conditions."
(Emphasis sic.) Young v. UPS, 575 U.S. 206, 242 (2015) (Scalia, J., dissenting on other
points.)
{¶ 73} Similarly, Ohio's Fair Employment Practices Act ("FEPA"), codified at
R.C. Chapter 4112, prohibits discrimination on the basis of pregnancy; after Congress
enacted the PDA amendments to Title VII, Ohio followed suit by enacting an equivalent
Ohio Pregnancy Discrimination Act in 1980. R.C. 4112.02(A) generally provides that it is
an unlawful discriminatory practice for any employer "because of the * * * sex * * * of any
person, to discharge without just cause, to refuse to hire, or otherwise to discriminate
against that person with respect to hire, tenure, terms, conditions, or privileges of
employment, or any matter directly or indirectly related to employment." After adoption
of Ohio's PDA, R.C. 4112.01(B) states that for the purposes of "divisions (A) to (F) of section
4112.02 of the Revised Code, the terms 'because of sex' and 'on the basis of sex' include, but
are not limited to, because of or on the basis of pregnancy * * *." R.C. 4112.01(B) further
provides that "women affected by pregnancy * * * shall be treated the same for all
employment-related purposes * * * as other persons not so affected but similar in their
ability or inability to work * * *." See generally, Allen v. Totes/Isotoner Corp., 123 Ohio
St.3d 216, 2009-Ohio-4231, ¶ 24-27; Priest v. TFH-EB, Inc., 127 Ohio App.3d 159, 164-65
(10th Dist.1998). "Federal case law interpreting Title VII of the Civil Rights Act of 1964,
Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases involving
alleged violations of R.C. Chapter 4112." Plumbers & Steamfitters Joint Apprenticeship
Commt. v. Ohio Civil Rights Comm. 66 Ohio St.2d 192, 196 (1981).
{¶ 74} In the present case, the commission addressed the question of voluntary
abandonment and assessed the evidence addressing the interplay between physical impact
of the allowed conditions and a subsequent pregnancy in weighing whether one or the other
No. 20AP-174 22
had prevented Wolfe from returning to work. This was one step more than was required.
In administrative proceedings before the commission, voluntary abandonment is the
equivalent of an affirmative defense against civil claims, and must be pleaded and argued
by the employer. State ex rel. Navistar v. Indus. Comm., 160 Ohio St.3d 7, 2020-Ohio-712,
¶ 16, citing State ex rel. Jenkins v. Indus. Comm., 10th Dist. No. 16AP-534, 2017-Ohio-
7896. Title VII and FEPA bar DeCapua, a self-insured employer, from asserting a defense
to benefits sought by a pregnant claimant when those same benefits would be legally
available to similarly situated workers who are not pregnant.
{¶ 75} In summary, because the commission remains the primary arbiter of
evidence in a workers' compensation matter, and the commission has considered the
question and determined that the medical evidence in this case supports the conclusion
that Wolfe's allowed conditions would have rendered her unable to return to her previous
position, it was unnecessary for the commission to address the impact of Wolfe's pregnancy
upon her TTD eligibility. A claimant in the same position as Wolfe, but not pregnant, would
have been eligible for TTD as granted. Federal and state law prohibiting discrimination on
the basis of pregnancy preclude treating Wolfe any differently, and preclude the employer
raising pregnancy to support the affirmative defense of abandonment. The commission's
approval of additional treatment for Wolfe's allowed conditions is supported by some
evidence. It is therefore the magistrate's decision and recommendation that the requested
writ of mandamus must be denied.
/S/ MAGISTRATE
MARTIN L. DAVIS
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).
No. 20AP-174 23