State ex rel. White v. Internatl. House of Pancakes ( 2014 )

[Cite as State ex rel. White v. Internatl. House of Pancakes, 2014-Ohio-412.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, ex rel. :
Nancy L. White, Administrator
of the Estate of Mary H. Parker, :
Deceased,
Relator, :
No. 13AP-285
v. :
(REGULAR CALENDAR)
International House of Pancakes :
and Industrial Commission of
Ohio, :
Respondents. :
D E C I S I O N
Rendered on February 6, 2014
Butkovich & Crosthwaite Co., Joseph A. Butkovich and
Dana R. Lambert, for relator.
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
TYACK, J.
{¶ 1} Nancy L. White, as administrator for the estate of Mary H.
Parker, has filed this action in mandamus seeking a writ of mandamus to
compel the Industrial Commission of Ohio ("commission") to award
permanent total disability ("PTD") compensation to Mary H. Parker
("Parker") posthumously.
{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of
Appeals, the case was referred to a magistrate to conduct appropriate
No. 13AP-285 2
proceedings. The parties stipulated the pertinent evidence and filed briefs.
The magistrate then issued a magistrate's decision, appended hereto, which
contains detailed findings of fact and conclusions of law. The magistrate's
decision includes a recommendation that we deny the request for a writ of
mandamus.
{¶ 3} Counsel for Parker's estate has filed an objection to the
magistrate's decision. Counsel for the commission has filed a memorandum
in response. Counsel for the commission has filed its own objection to the
magistrate's decision. The case is now before the court for a full,
independent review.
{¶ 4} Parker suffered a back injury in 1974. It was recognized for
"acute myofibrositis of the lumbar spine" and "aggravation of pre-existing
arthritis of lumbar spine." In April 1999, she underwent back surgery but
did not work thereafter.
{¶ 5} In November 2001, Parker applied for PTD compensation.
The application was supported by a report from her chiropractor. She was
73 years old when she filed her application.
{¶ 6} In her application, she listed her former employments as
being a waitress for many years and four years as a receptionist. For several
years she did not work outside the home.
{¶ 7} A report for the commission indicated that Parker had only a
ten percent physical impairment and had the physical capacity for sedentary
work. A staff hearing officer ("SHO") relied upon the report in denying PTD
compensation.
{¶ 8} Counsel for Parker filed a mandamus action which resulted in
a limited writ of mandamus. Before the commission could adjudicate the
matter again, Parker died. As a result, an SHO entered an order finding the
application for PTD compensation to be abated.
{¶ 9} Nancy L. White later filed an application requesting any PTD
compensation funds due up to the date of Parker's death. The application
indicated Parker's employment as a receptionist had been provided by
No. 13AP-285 3
Nancy White's brother. The application indicated that the work had not
gone well and anyone else would have fired Parker.
{¶ 10} The application for the posthumous award was denied by an
SHO based upon a finding that no PTD compensation had accrued as of the
date of Parker's death. This finding, in turn, was based upon a finding
Parker had not been entitled to PTD compensation as a result of the
application's so-called Stephenson factors, or nonmedical disability factors.
See State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987).
{¶ 11} Our magistrate felt that Parker's death did not abate the PTD
claims as to her heirs when she died. The commission has contested this
with its objection to the magistrate's decision. We do not sustain the
objection but also do not adopt that portion of the magistrate's decision
because it does not affect the outcome of this action.
{¶ 12} The remaining issue raised by the estate is whether the
commission abused its discretion in its weighing of the so-called Stephenson
factors when it found that an award of PTD compensation was not
warranted. The fact Parker was medically capable of sustained remunerative
employment is not contested.
{¶ 13} Parker was 73 years old when she applied for PTD
compensation. This was viewed as a negative factor, but not determinative
in light of the Supreme Court of Ohio's case of State ex rel. Moss v. Indus.
Comm., 75 Ohio St.3d 414 (1996).
{¶ 14} Parker had a high school education, completed in 1945, but
below average intellectual skills when measured before her death. The fact
she continued in school until she got her high school diploma could be
considered an asset.
{¶ 15} Parker's employment was predominantly as a waitress. This
indicated people skills and basic skills in math. Parker's work as a
receptionist involved some overlapping people skills and additional skills
with basic office equipment. The commission did not have to accept Parker's
daughter's evaluation of how badly the work was performed.
No. 13AP-285 4
{¶ 16} We cannot say the commission abused its discretion or that its
order was not supported by some evidence. We therefore overrule the
remaining objection to the magistrate's decision.
{¶ 17} We therefore adopt the findings of fact and conclusions of law
contained in the magistrate's decision except as to the issue of abatement.
We deny the request for a writ of mandamus.
Objection overruled; writ of mandamus denied.
BROWN and KLATT, JJ., concur.
No. 13AP-285 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, ex rel. :
Nancy L. White, Administrator
of the Estate of Mary H. Parker, :
Deceased,
Relator, :
No. 13AP-285
v. :
(REGULAR CALENDAR)
International House of Pancakes :
and Industrial Commission of
Ohio, :
Respondents. :
:
MAGISTRATE'S DECISION
Rendered on October 30, 2013
Butkovich & Crosthwaite Co., Joseph A. Butkovich and
Dana R. Lambert, for relator.
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 18} Mary H. Parker ("decedent") died on June 5, 2009. In this
original action, relator, Nancy L. White, the administrator of decedent's
estate, requests a writ of mandamus ordering respondent Industrial
Commission of Ohio ("commission") to vacate the June 29, 2010 order of its
staff hearing officer ("SHO") that denies decedent's November 29, 2001
No. 13AP-285 6
application for permanent total disability ("PTD") compensation, and to
enter an order awarding to Nancy L. White, pursuant to R.C. 4123.60, the
amount of compensation that decedent should have received prior to the
date of her death.
Findings of Fact:
{¶ 19} 1. On December 12, 1974, decedent injured her lower back
while employed as a waitress for respondent International House of
Pancakes ("IHOP"), a state-fund employer. The industrial claim (No. 74-
41965) is allowed for "acute myofibrositis of lumbar spine; aggravation of
pre-existing arthritis of lumbar spine."
{¶ 20} 2. In 1995, decedent began employment as a receptionist, a
job she held until April 1999.
{¶ 21} 3. In April 1999, decedent underwent back surgery. She did
not return to any type of employment subsequent to her back surgery.
{¶ 22} 4. On October 22, 2001, at her own request, decedent was
examined by chiropractor Peter J. Fagerland, D.C. In his two-page narrative
report, Dr. Fagerland opined:
Based on the allowed conditions and the AMA Guides to the
Evaluation of Permanent Impairment, Fifth Edition, I find the
following: it is my professional opinion that based on the
patient's subjective complaints of pain, discomfort, and
muscle weakness, in addition to my objective findings of
muscle spasm, decreased range of motion, loss of muscle
strength, and positive orthopaedic [sic] findings the patient is
permanently and totally disabled and is unable to perform any
type of remunerative employment whatsoever.
{¶ 23} 5. On November 29, 2001, decedent filed an application for
PTD compensation. She was 73 years of age at the time. In support, she
submitted the October 22, 2001 report of Dr. Fagerland.
{¶ 24} 6. The PTD application form asks the applicant to provide
information related to the applicant's education. On her application,
decedent indicated that she graduated from high school in 1945. The
application form posed three questions: (1) "Can you read?" (2) "Can you
No. 13AP-285 7
write?" and (3) "Can you do basic math?" Given a choice of "Yes," "No," and
"Not well," decedent selected the "Yes" response to all three queries.
{¶ 25} 7. The PTD application form also asks the applicant to
provide information regarding her work history. Decedent indicated that
she has held three jobs. She was employed as a receptionist at "Packosonic"
from 1995 to 1999. She was employed as a "[w]aitress" for "IHOP" from
1972 to 1974. She was employed as a "[w]aitress" at "LaRosa's" and that
employment ended in 1983.
{¶ 26} 8. The PTD application form asks decedent to provide
additional information about the duties of the jobs she identified. The form
poses six questions regarding each job. Regarding the receptionist job, the
six questions and decedent's responses were as follows:
[One] Your basic duties: Answering phones, copying, faxing,
typing and payroll.
[Two] Machines, tools, equipment you used: Type writer, fax
machine and multi-line phone.
[Three] Exact operations you performed: Recorded
employee's payroll, answered phone calls and take messages.
[Four] Technical knowledge and skills you used: Used math
and English skills, knowledge of typewriter and fax machine.
[Five] Reading/Writing you did: Wrote down payroll times
and signed checks and took messages.
[Six] Number of people you supervised: None.
{¶ 27} 9. Regarding the waitress job at IHOP, the six questions and
decedent's responses were as follows:
[One] Your basic duties: Waited on people and bused the
tables, bring checks to register to pay bill.
[Two] Machines, tools, equipment you used: Cash register.
[Three] Exact operations you performed: See answer to #1.
No. 13AP-285 8
[Four] Technical knowledge and skills you used: Math to write
up checks.
[Five] Reading/Writing you did: Write the order down.
[Six] Number of people you supervised: None.
{¶ 28} 10. On February 19, 2002, at the commission's request,
decedent was examined by James T. Lutz, M.D. In his two-page narrative
report, Dr. Lutz wrote:
HISTORY OF PRESENT ILLNESS: Mary Parker is a 73-
year-old female who was injured on 12/12/74 while working
as a waitress. On the date of injury the claimant was carrying
food and slipped on a toothpick on the floor and twisted her
low back trying not to fall. The claimant underwent one
surgical procedure related to this injury, which occurred in
April 1999, and most likely consisted of a laminectomy
discectomy, as the claimant states that she underwent no
surgical fusion. Currently the claimant is under the care of a
pain management specialist, Dr. Alturi, whom she sees every
three months. Her current medications related to the injury
include Vicodin, Ultram and Celebrex. The claimant also takes
Flexeril prescribed by her primary care physician. Her current
symptoms include constant low back pain, which varies in
severity with constant radiation of pain to the right knee, and
occasional radiation of pain to the right ankle. The claimant
denies any associated numbness or tingling. She states her
low back symptoms are aggravated with all types of exertional
activities such as lifting and bending, prolonged sitting and
standing, and with weather changes.
Regarding her activities of daily living: The claimant lives with
her husband in their own home. She does some light cooking,
and gets assistance making the bed from her husband. The
claimant will also load some of the dishes into the dishwasher.
The claimant states she seldom accompanies her husband to
the grocery store, and spends a fair amount of time sitting and
watching TV. She also goes for brief walks with her husband.
PAST MEDICAL HISTORY: The claimant denies any
history involving her low back prior to the injury of record.
She underwent a cholecystectomy in the mid-1980's, and left
knee surgery in the mid-1990's. The claimant has a history of
diabetes type 2, for which she takes Glucotrol; a history of
No. 13AP-285 9
ulcer disease, for which she takes Nexium and Reglan; and a
history of blood clots of her left leg, for which she takes
Coumadin. She also has a history of hypertension, for which
she takes Zestoretic.
***
DISCUSSION: Mary Parker sustained an industrial injury
on 12/12/74 whose claim allowances are noted above. She has
undergone one surgical procedure related to this injury,
presumably consisting of a laminectomy discectomy. Other
disability factors include the claimant's age of 73, her last date
of work being in 1999, and a twelfth grade education.
ANSWERS TO SPECIFIC QUESTIONS:
[One] In my medical opinion, this claimant has reached
maximum medical improvement with regard to each specified
allowed condition of the injury of record. In my opinion, no
fundamental, functional or physiologic change can be
expected despite continued treatment and/or rehabilitation.
[Two] Reference is made to the Fourth Edition of the AMA
Guides Revised in arriving at the following impairment
assessment. For injuries to the lumbosacral spine including
acute myofibrositis of lumbar spine, and aggravation of
preexisting arthritis of lumbar spine: Utilizing table 72 on
page 110 the claimant warrants a DRE category III, which
equals a 10% whole person impairment.
[Three] Please see the enclosed physical strength rating.
{¶ 29} 11. On a Physical Strength Rating form dated February 19,
2002, Dr. Lutz indicated by his mark that decedent is capable of "sedentary
work."
{¶ 30} 12. On March 7, 2002, at decedent's own request, she was
examined and tested by psychologist and vocational expert Jennifer J.
Stoeckel, Ph.D. In her six-page narrative report, dated March 26, 2002, Dr.
Stoeckel wrote:
TEST RESULTS
No. 13AP-285 10
On the Wechsler Adult Intelligence Scale-III, Ms. Parker
obtained Verbal, Performance, and Full Scale IQ scores of 85,
78, and 80, respectively. These scores place Ms. Parker at the
low average range for intellectual functioning and at the 9th
percentile. Intellectually, Ms. Parker is surpassed by 91% of
the normative population. She was weaker on visual spatial
skills although these skills tend to diminish as a factor of age.
She showed strength for digit recall. On the Verbal Subtest she
was weak on verbal reasoning ability. Normally, individuals
who score at this range are able to complete a high school
education although may have some academic difficulties.
Within the labor force they are typically employed in unskilled
to low semi-skilled work activity.
***
On the Wide Range Achievement Test---III, Ms. Parker scored
at the high school level for reading and spelling and at the 7th
grade level for arithmetic.
***
The Career Ability Placement Survey assesses eight abilities
important for success in a variety of work fields. Scores are
reported as stanines which range from 1 to 9 with stanines of
1, 2, and 3 being considered below average; 4, 5, and 6 as
average; and 7, 8, and 9 as [above] average. On this measure,
Ms. Parker demonstrated average ability for mechanical
reasoning; yet below average functioning in all remaining
work aptitudes measured including spatial reasoning, verbal
reasoning, numerical ability, language usage/grammar, word
knowledge, perceptual speed and accuracy, and manual speed
and dexterity.
***
OPINION
Based upon the results of my examination and the
information provided/reviewed, without reservation, Ms.
Parker would be considered permanently and totally disabled
on the basis of her work injury, residual impairment and
vocational characteristics. Again, Ms. Parker is a seventy-
three year old female who suffered a work related injury in
No. 13AP-285 11
1974. She was treated conservatively until 1999 when she
underwent a decompressive lumbar procedure. She has not
worked substantially since that time. Dr. Fagerland who
evaluated Ms. Parker in October of 2001 has indicated she
would be considered permanently and totally disabled based
upon physical findings. She was evaluated by Dr. Berghausen
apparently at the request of the Bureau of Workers'
Compensation. He also found Ms. Parker disabled from work
activity given her low back condition and age characteristics.
She was evaluated by Dr. Lutz recently for the Industrial
Commission. He opined sedentary capacities.
It is noteworthy Ms. Parker post-injury found sedentary
employment as a receptionist such as answering phones,
copying, faxing, light typing and doing payroll. Unfortunately,
following the surgery in 1999 she has been unable to return to
any gainful employment. She cannot sit for extended periods
of time. Additionally, while she has a history of high school
education and high school level reading and math skills her
math skills are limited to 7th grade and per vocational testing
Ms. Parker demonstrates predominantly below average work
aptitudes. Ms. Parker is significantly more limited by her age
characteristics. At seventy-three Ms. Parker would be
considered a person of advanced age per Industrial
Commission criteria. Her age alone would preclude her ability
to acquire new work skills as well as her ability to compete
successfully with younger entry level workers.
Summarily, within reasonable vocational certainty, Ms.
Parker would be considered permanently and totally disabled
on the basis of her allowed conditions, significant residual
impairment, her significantly advanced age of seventy-three
years, departure from the work force in 1999, and vocational
characteristics such as low average intellectual functioning
and predominantly below average work aptitudes.
{¶ 31} 13. The commission requested an "Employability Assessment
Report" from vocational expert Anthony Stead. In his four-page narrative
report, dated March 25, 2002, Stead answers several questions found under
the caption "III. Effects of Other Employability Factors:"
[One] Question:
How, if at all, do the claimant's age, education, work history
or other factors (physical psychological and sociological)
No. 13AP-285 12
affect his/her ability to meet basic demands of entry-level
occupations?
Answer:
Age: 73. At this age, it could be more difficult to learn new
skills and adapt to new environments. I would consider her
age a negative factor when considering re-employment.
Education: 12th grade. This level of education should be
sufficient for entry-level unskilled and semi-skilled tasks. I
would not consider her education to be a barrier to re-
employment.
Work History: The claimant's work history was that of a
Receptionist and Waitress. The claimant's work history
allowed her to deal with the public. I would not consider her
work history to be a barrier to re-employment.
[Two] Question:
Does your review of background data indicate whether the
claimant may reasonably develop academic or other skills
required to perform entry-level Sedentary or Light jobs?
Answer:
There is nothing to indicate that the claimant could not
benefit from a structured vocational rehabilitation program
designed at skill enhancement and re-employment. The
claimant's advanced age, however, would likely minimize the
positive practical effects such programming would have.
[Three] Question:
Are there significant issues regarding potential employability
limitations or strengths that you wish to call to the SHO's
attention?
Answer: None.
{¶ 32} 14. Following a January 6, 2003 hearing, an SHO issued an
order denying decedent's PTD application. For the determination of residual
functional capacity, the SHO relied exclusively on the reports of Dr. Lutz.
The SHO found that decedent's "orthopedic condition is permanent and has
reached maximum medical improvement and results in a 10% whole person
impairment rating."
No. 13AP-285 13
{¶ 33} The SHO further explained:
The Staff Hearing Officer finds that the injured worker would
be able to engage in sedentary work activity based upon the
examination report of Dr. Lutz dated 2/19/02.
The Staff Hearing Officer finds that the injured worker's past
work history as a receptionist was a sedentary position which
required the injured worker to answer phones as well as fax
and copy paperwork. The job also required the injured worker
to type and take messages and record employee's payroll. This
job did not require the injured worker to lift over 10 pounds
and involved sitting most of the time at a desk. The Staff
Hearing Officer finds that this position fits within the
restrictions noted by Dr. Lutz as outlined in his 2/19/02
report.
Therefore, the Staff Hearing Officer finds that the injured
worker is medically able to return to her former position of
employment and therefore is precluded from receiving
Permanent Total Disability benefits, pursuant to OAC 4121-3-
34(D)(1)(c).
15. In February 2008, decedent filed in this court a mandamus action
challenging the SHO's order of January 6, 2003. On December 4, 2008, this court issued
its decision granting the writ of mandamus in part and remanding the matter to the
commission for further proceedings on the issue of whether decedent is entitled to the
requested compensation. State ex rel. Parker v. Internatl. House of Pancakes, 10th Dist.
No. 08AP-85, 2008-Ohio-6317. In Parker, this court found that the commission
misconstrued Ohio Adm.Code 4121-3-34(D)(1)(c) which states:
If, after hearing, the adjudicator finds that the injured worker
is medically able to return to the former position of
employment, the injured worker shall be found not to be
permanently and totally disabled.
Id. at ¶ 6.
This court determined that the SHO's order of January 6, 2003 incorrectly
assumed that the receptionist job was the former position of employment within the
meaning of Ohio Adm.Code 4121-3-34(D)(1)(c). The SHO failed to recognized that the
former position of employment was the job decedent held on the date of her industrial
injury. Given the misapplication of Ohio Adm.Code 4121-3-34(D)(1)(c), the SHO's order
No. 13AP-285 14
of January 6, 2003 fails to address the non-medical factors necessitated by the conclusion
that decedent was unable to return to her former position of employment as a waitress.
{¶ 34} 16. On February 19, 2009, the SHO mailed an order
recognizing this court's writ. The SHO's order explains:
Pursuant to the Judgment Entry of the Tenth Appellate
District Court of Appeals dated 12/04/2008, which was filed
with the Industrial Commission on 02/12/2009, for the case
of State ex rel. Mary Parker v. Industrial Commission,
assigned Case No. 08AP0085, it is found that the requested
Writ of mandamus has been granted.
Therefore, it is the order of the Industrial Commission that
the previous order dated January 6, 2003, findings mailed
January 23, 2003, which denied the application for
permanent total disability compensation, be vacated; and a
new order be issued, as so instructed by the court.
Accordingly, this claim is to be referred to the Hearing
Administrator for appropriate review and to schedule a
hearing on the issue of the injured worker's Application for
Permanent and Total Disability filed on November 29, 2001.
The hearing officer is to issue an order consistent with the
decision of the court and its magistrate.
{¶ 35} 17. Pursuant to the February 19, 2009 SHO's order, the PTD
application was scheduled for hearing on July 9, 2009. However, at the
hearing counsel indicated that Mary Parker had died on June 5, 2009.
Consequently, the SHO's order of July 9, 2009 does not adjudicate the PTD
application. Rather, the SHO's order of July 9, 2009 states:
The Hearing Officer finds that the claim is abated by her
death. The Hearing Officer orders that the file be referred to
the Bureau of Workers' Compensation[.]
{¶ 36} 18. On July 8, 2009, decedent's daughter, Nancy L. White,
completed form C-6 captioned "Application For Payment Of Compensation
Accrued At Time Of Death." On the form, Mary Parker is named as the
decedent and "N. Lynette White" is named as the applicant. (Presumably,
"N. Lynette White is Nancy L. White.") "N. Lynette White" is also listed as
No. 13AP-285 15
the only dependent in the space provided under the following preprinted
statement:
Application for payment of compensation accrued and due
decedent at the time of death, or compensation for which the
decedent would have been otherwise entitled to have made
application is hereby made on behalf of the following named
persons, who were dependent upon the decedent for
support[.]
{¶ 37} 19. On the C-6 form, the applicant requests PTD
compensation from October 22, 2001 through June 5, 2009. The completed
C-6 form was not filed until February 1, 2010.
{¶ 38} 20. On October 8, 2009, Nancy L. White executed an
affidavit, stating:
I, Nancy L. White, having been first duly sworn, state the
following: I am the daughter of Mary H. Parker, deceased,
with regard to her Ohio Workers' Compensation claim
assigned claim number 74-41965.
Following my mother's employment with the employer of
record, International House of Pancakes, she worked various
jobs as a waitress. Her longest period of employment, as a
waitress, was for The Hitching Post on Beechmont Avenue, in
the Anderson Township area.
Following her employment with The Hitching [P]ost, she
worked for some time at LaRosa's, also in the Anderson
Township area.
As my mother's health declined she began working for my
brother at Crowley Label, later known as Packosonic Label.
This is a printing company. My mother performed general
clerical duties, such as a secretary or receptionist.
My mother's health problems proved to be a problem for her
to complete her job duties. She was in constant pain, had to
take a lot of pain medication and was unable to get around
easily. She could not sit for long periods of time, but then she
also had problems walking due to the pain in her legs.
The pain medications that my mother took also caused her
confusion. She was constantly making mistakes that had to be
No. 13AP-285 16
corrected by someone else. Phone messages/orders had to be
verified for accuracy if they were taken by my mother.
Someone had to go back after my mother performed most of
her duties to correct her mistakes. Most of what she did had to
be redone.
Attendance at work was also an issue due to my mother's poor
health. She also missed work for ongoing medical
appointments.
It is my opinion that no other employer would have kept my
mother as an employee due to her poor health, absenteeism,
physical restrictions, or inability to produce high quality work.
Because this was a family business, my mother was able to
work and earn money.
{¶ 39} 21. The record contains a January 6, 2010 entry of the
Probate Court of Clermont County, Ohio, appointing "Nancy Lynette White"
executor of the estate of Mary Helen Parker who was stated to have died on
June 5, 2009.
{¶ 40} 22. On June 29, 2010, an SHO heard the C-6 application filed
by Nancy L. White. Following the hearing, the SHO issued an order denying
the C-6 application. The SHO's order explains
It is the order of the Staff Hearing Officer that the C-6
Application for Payment of Compensation Accrued At Time
Of Death, filed on 02/01/2010, is denied.
In the application, Ms. N. Lynette White, as the administrator
of the estate of Mary Parker, requested permanent and total
disability compensation accrued and owed to Ms. Parker as of
the date of her death on 06/05/2009.
It is the finding of the Staff Hearing Officer that no permanent
and total disability compensation was accrued and owed to
Ms. Mary Parker at the time of her death.
Ms. Parker had previously filed and requested the payment of
permanent and total disability compensation pursuant to a
IC-2 application filed on 11/29/2001. The Industrial
Commission of Ohio previously denied the application
pursuant to a Staff Hearing Officer order issued on
01/23/2003. However, the Staff Hearing Officer order issued
No. 13AP-285 17
on 01/23/2003 was vacated pursuant to an Industrial
Commission order issued on 02/19/2009.
It is the finding of this Staff Hearing Officer that Ms. Parker
was not permanently and totally disabled and that her IC-2
application for permanent and total disability compensation,
filed on 11/29/2001, is denied.
It is the finding of the Staff Hearing Officer that the claim was
previously allowed for the conditions of: ACUTE
MYOFIBROSITIS OF LUMBAR SPINE; AGGRAVATION OF
PRE-EXISTING ARTHRITIS OF LUMBAR SPINE. The claim
was previously disallowed for the conditions of FAILED BACK
SURGERY; FAILED BACK SYNDROME.
It is the finding of the Staff Hearing Officer that the Injured
Worker was previously examined on behalf of the Industrial
Commission of Ohio by Dr. Lutz on 02/19/2002. Dr. Lutz
noted that the Injured Worker had reached maximum medical
improvement for the allowed conditions in the claim. He also
opined that the Injured Worker was capable of performing
sedentary work.
Based upon the report of Dr. Lutz, it is the finding of this Staff
Hearing Officer that the Injured Worker had reached
maximum medical improvement for the allowed conditions in
the claim and was capable of performing sedentary work
activities.
It is the finding of the Staff Hearing Officer that the Injured
Worker's past work history included jobs as a receptionist, a
waitress and as an office clerk. It is the finding of the Staff
Hearing Officer that the Injured Worker was working as a
receptionist, which is a sedentary level position, up to April of
1999. It is the finding of the Staff Hearing Officer that the
Injured Worker had a twelfth grade education and was
approximately 73 years of age when she filed the IC-2
application.
It is the finding of the Staff Hearing Officer that the Injured
Worker's age was a detriment to her ability to return to and
find employment in a sedentary level position. However, this
detriment in and of itself is not sufficient to find an Injured
Worker permanently and totally disabled. Further, the
Injured Worker worked for several years and was previously
able to find employment regardless of her advanced age. The
No. 13AP-285 18
Injured Worker's level of education would be a benefit to her
ability to find employment in the sedentary work
environment. Further, the Injured Worker's prior work
experience establishes that she was capable of performing
work in a sedentary level position and had transferable skills
in operating cash registers, answering phones, using copiers,
typing and using various payroll/office equipment. These
skills would have greatly benefited her ability to find
employment in a sedentary position.
Considering the Injured Worker's [State ex rel. Stephenson v.
Indus. Comm., 31 Ohio St.3d 167 (1987)] factors, it is the
finding of the Staff Hearing Officer that the Injured Worker
would have been capable of returning to and performing
sedentary work activities after April of 1999, and thus was not
permanently and totally disabled.
Therefore, it is hereby the order of the Staff Hearing Officer
that the request for payment of accrued permanent and total
disability compensation is denied.
{¶ 41} 23. On April 4, 2013, relator, Nancy L. White, the
administrator of decedent's estate, filed this mandamus action.
Conclusions of Law:
{¶ 42} Two issues are presented: (1) whether, pursuant to R.C.
4123.60, the decedent's estate can collect the PTD compensation that
decedent allegedly should have received prior to the date of her death even
though decedent's industrial claim abated as of the date of her death, and (2)
whether the SHO's order of June 29, 2010 presents an abuse of commission
discretion in the consideration of the non-medical factors.
{¶ 43} The magistrate finds: (1) the decedent's estate can collect the
PTD compensation that decedent allegedly should have received prior to the
date of her death notwithstanding that decedent's industrial claim abated as
of the date of her death, and (2) the SHO's order of June 29, 2010 does not
present an abuse of discretion in the commission's consideration of the non-
medical factors.
No. 13AP-285 19
{¶ 44} Accordingly, as more fully explained below, it is the
magistrate's decision that this court deny relator's request for a writ of
mandamus.
{¶ 45} R.C. 4123.60 currently provides:
In all cases of death where the dependents are a surviving
spouse and one or more children, it is sufficient for the
surviving spouse to apply to the administrator on behalf of the
spouse and minor children. In cases where all the dependents
are minors, a guardian or next friend of such minor
dependents shall apply.
In all cases where an award had been made on account of
temporary, or permanent partial, or total disability, in which
there remains an unpaid balance, representing payments
accrued and due to the decedent at the time of his death, the
administrator may, after satisfactory proof has been made
warranting such action, award or pay any unpaid balance of
such award to such of the dependents of the decedent, or for
services rendered on account of the last illness or death of
such decedent, as the administrator determines in accordance
with the circumstances in each such case. If the decedent
would have been lawfully entitled to have applied for an
award at the time of his death the administrator may, after
satisfactory proof to warrant an award and payment, award
and pay an amount, not exceeding the compensation which
the decedent might have received, but for his death, for the
period prior to the date of his death, to such of the dependents
of the decedent, or for services rendered on account of the last
illness or death of such decedent, as the administrator
determines in accordance with the circumstances in each such
case, but such payments may be made only in cases in which
application for compensation was made in the manner
required by this chapter, during the lifetime of such injured or
disabled person, or within one year after the death of such
injured or disabled person.
{¶ 46} In State ex rel. Nicholson v. Copperweld Steel Co., 77 Ohio
St.3d 193 (1996), Marian Nicholson was the spouse of Charles Nicholson
who sustained industrial injuries in 1973 and 1974. In July 1990, Charles
applied for PTD compensation. On February 18, 1992, Charles died before
any disposition of his PTD application.
No. 13AP-285 20
{¶ 47} In April 1992, Marian applied, as Charles' dependent, for the
compensation that Charles could have received prior to his death. The
commission denied Marian's application, finding that Charles' disability was
due to non-allowed conditions. Marian then filed a mandamus action in this
court arguing that Charles should have received PTD compensation prior to
his death and that she, as his dependent, was entitled to the award. This
court denied the writ on grounds that Charles' claim had abated upon his
death and that Marian had no legal right under R.C. 4123.60 to pursue
payment for Charles' PTD compensation by an action in mandamus. Marian
then appealed as of right to the Supreme Court of Ohio.
{¶ 48} The Nicholson court held that R.C. 4123.60 affords
dependents, upon timely application, the right to claim compensation for
which a decedent was eligible but was not paid before death and that
mandamus is available to enforce the right. Id. at 195. The Nicholson court
explained:
The court of appeals concluded that Charles's PTD claim
abated upon his death, which is true under State ex rel.
Hamlin v. Indus. Comm. (1993), 68 Ohio St.3d 21, 22, 623
N.E.2d 35, 36. The court further held that his surviving spouse
had no right under R.C. 4123.60 to "step into * * * [his] shoes"
for the purpose of pursuing his claim, and this is also true.
State ex rel. Manns v. Indus. Comm. (1988), 39 Ohio St.3d
188, 529 N.E.2d 1379, paragraph three of the syllabus (where
deceased claimant was paid lump-sum advance for
anticipated future compensation, advance was not "accrued
compensation" to which dependents may be entitled under
R.C. 4123.60, and a surviving spouse cannot pursue the
decedent's claim for the advance). The commission urges us to
affirm for the same reasons.
We, however, read the emphasized language of R.C. 4123.60
to expressly authorize a deceased worker's dependents' receipt
of compensation for which the worker qualified and should
have received before death. Indeed, we have already said that
where a deceased worker's dependents' claims accrued
compensation under R.C. 4123.60, "[t]he award is not
personal to the worker because R.C. 4123.60 specifically
provides that dependents may recover the compensation the
No. 13AP-285 21
deceased worker was entitled to receive." State ex rel. Nyitray
v. Indus. Comm. (1983), 2 Ohio St.3d 173, 177, 2 OBR 715,
719, 443 N.E.2d 962, 966, fn. 5. For this reason, an R.C.
4123.60 award is similar to a death benefit award under R.C.
4123.59-both exist separate and apart from the rights of the
injured worker. (Citations omitted.)
Thus, contrary to the court of appeals' decision, Marian is not
attempting to pursue Charles's PTD claim, which he filed
pursuant to R.C. 4123.58, on his behalf. Rather, when Marian
filed her application for accrued compensation, she instituted
her own claim for compensation Charles could have received,
a claim that is expressly sanctioned by R.C. 4123.60. As a
result, Marian's claim was not abated by Charles's death-her
interests actually arose at that time and, under R.C. 4123.60,
they became independently actionable.
Id. at 196.
{¶ 49} The Nicholson court went on to find that the commission had
abused its discretion in denying Charles' PTD application. Accordingly, the
Nicholson court reversed the judgment of this court and issued a limited writ
returning the cause to the commission for further proceedings.
{¶ 50} In State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276(2000), Robert E. Liposchak contracted an occupational disease in the
course of his employment. Robert applied for PTD compensation and
obtained an award following mandamus litigation. However, Robert died
before payment. Robert's brother, Walter Liposchak, became the executor of
Robert's estate. Robert's mother, Edith Liposchak, filed a death claim under
R.C. 4123.59.
{¶ 51} Edith and Walter together filed a claim under R.C. 4123.60.
{¶ 52} The commission granted payment for medical and funeral
expenses pursuant to R.C. 4123.66, but denied all other relief. The
commission determined that Edith had never been Robert's dependent, nor
was she likely to ever become Robert's dependent. Robert had no lineal
decedents, lived with his brother, and was "quite dependent on his brother."
Id. at 277.
No. 13AP-285 22
{¶ 53} Edith and Walter filed in this court a mandamus action
seeking relief under R.C. 4123.60. Walter sought relief in his capacity as
executor of Robert's estate. This court dismissed the Liposchak complaint
for failure to state a claim for relief, finding that Edith had an adequate
remedy in the ordinary course of law and that Walter had no legal right to
relief.
{¶ 54} Before filing their mandamus action in this court, the
Liposchak's appealed the commission's order to the Jefferson County Court
of Common Pleas.
{¶ 55} On appeal as of right from this court to the Supreme Court of
Ohio, the Liposchak court held that commission determinations under R.C.
4123.59 or R.C. 4123.60 are not appealable to a common pleas court. That
is, such commission determinations are actionable only in mandamus.
{¶ 56} Lastly, the Liposchak court addressed the R.C. 4123.60 claim
of Walter Liposchak as executor of Robert's estate:
Having found that R.C. 4123.60 dependency issues are not
appealable under R.C. 4123.512, we turn to whether Robert's
estate can collect the permanent partial and permanent total
disability compensation that accrued but had not been paid to
him before his death.
In State ex rel. Nossal v. Terex Div. of I.B.H. (1999), 86 Ohio
St.3d 175, 712 N.E.2d 747, syllabus, we held that the estates of
deceased dependents can recover R.C. 4123.60 compensation
to which the dependent was entitled from the State Insurance
Fund. Thus, Walter, as executor of Robert's estate, reasonably
asks why estates of workers should not be able to collect
accrued compensation when the estates of dependents are
able to collect. We see no reason for such an inequity.
Accordingly, we follow Nossal, and hold that Robert's estate is
entitled under R.C. 4123.60 to compensation that accrued to
Robert, but had not been paid to him at the time of his death.
Id. at 282.
{¶ 57} The Liposchak court reversed the judgment of this court and
remanded the cause to this court for further proceedings.
No. 13AP-285 23
{¶ 58} It is perhaps noteworthy that the Liposchak court split five to
two. The two dissenting justices concurred as follows:
I must also respectfully dissent from the majority's reliance on
our Nossal case, in the second part of its opinion, to justify its
holding that Robert's estate may recover Robert's accrued but
unpaid compensation under R.C. 4123.60. Our Nossal
syllabus provides only that "[w]here the commission awards
death benefits to the surviving spouse of a deceased
employee, but the spouse dies before the funds are disbursed,
accrued benefits for the period between the deceased
employee's death and the spouse's death shall be paid to the
spouse's estate." (Emphasis added.) State ex rel. Nossal v.
Terex Div. of I.B.H. (1999), 86 Ohio St.3d 175, 712 N.E.2d 747,
syllabus. In Nossal, the worker's sole dependent had actually
been awarded $298 per week in benefits, but died before
those funds were disbursed. Because the award had already
vested in the worker's dependent, we permitted the
dependent's estate to recover the benefits that the dependent
would have received-but for administrative delays-during the
limited period between the worker's death and her own.
Nossal thus only permits a dependent's estate to recover
where an award to the worker's dependent has actually vested
in that dependent prior to the dependent's death. Nossal does
not support the majority's much broader holding that a
worker's estate can actually collect accrued/unpaid benefits
itself under R.C. 4123.60.
Here, unlike the situation we confronted in Nossal, no
dependent of Robert has been deemed eligible to receive
accrued/unpaid benefits. No R.C. 4123.60 award has vested
yet been administratively delayed. Moreover, any right to the
receipt of accrued/unpaid benefits under R.C. 4123.60 is the
right of a "dependent," and Robert's estate cannot itself
qualify as a "dependent" under R.C. 4123.60. Dependents are
"person[s]" such as surviving spouses and children who either
partly, wholly, or prospectively relied on the deceased worker
for maintenance and support. See R.C. 4123.59 (C) and (D). A
deceased worker's estate is no such "person." A deceased
worker's estate is an aggregate comprising the assets and
liabilities of the decedent. See Black's Law Dictionary (7
Ed.1999) 567. Individual beneficiaries of a deceased worker's
estate could seek to recover accrued/unpaid benefits as
dependents, upon satisfactory proof to the administrator of
their status as dependents under R.C. 4123.60. But a worker's
estate cannot be said to have relied on the worker for
No. 13AP-285 24
maintenance and support-even prospectively-for the estate
does not even exist as a legal construct until the worker is
deceased. We have recognized this distinction before. Seventy
years ago, this court held that a dependent (or personal
representative thereof) could maintain an action for the
unpaid balance of an award, but "not * * * the administrator of
the decedent." Bozzelli v. Indus. Comm. (1930), 122 Ohio St.
201, 207, 171 N.E. 108, 110.
(Emphasis sic.) Id. at 284-85. (Moyer, C.J., and Cook, J., concur in part and dissent in
part.)
{¶ 59} Here, the commission suggests that the SHO's order of June
29, 2010 denies relator's C-6 application on two separate grounds: (1) that
the commission lacked jurisdiction over the claim for R.C. 4123.60 relief
because decedent's industrial claim abated at the time of decedent's death,
and (2) the decedent was never permanently and totally disabled.
First Issue: Claim Abatement
{¶ 60} Ohio Adm.Code 4123-5-21(A) provides:
When a claimant dies, action on any application filed by the
claimant, and pending before the bureau or the industrial
commission at the time of his death, is abated by claimant's
death.
{¶ 61} Primarily relying upon the commission's rule regarding claim
abatement, the commission asserts that, because decedent's industrial claim
abated at her death, "the commission had no further jurisdiction to hear the
matter." (Commission's brief, at 9.)
{¶ 62} According to the commission (Commission's brief, at 6.), the
following portion of the SHO's order of June 29, 2010 indicates that claim
abatement was one of two reasons for denial of the C-6 application:
It is the finding of the Staff Hearing Officer that no permanent
and total disability compensation was accrued and owed to
Ms. Mary Parker at the time of her death.
{¶ 63} The magistrate disagrees with the commission's
interpretation of the SHO's order of June 29, 2010. The order does not
mention abatement or any jurisdictional issue. The portion of the order
No. 13AP-285 25
relied upon here appears to present a finding or conclusion that is consistent
with the commission's determination that decedent was not permanently
and totally disabled.
{¶ 64} In any event, the commission's position, i.e., that it lacks
jurisdiction over the C-6 because decedent's industrial claim had abated,
lacks merit.
{¶ 65} The decision of the Nicholson court is instructive.
Undeniably, decedent's industrial claim abated at her death on June 5, 2009.
However, the C-6 claim of relator did not abate. In fact, it arose at the time
of decedent's death, and under R.C. 4123.60 became independently
actionable. Nicholson at 196.
{¶ 66} Based on the foregoing analysis, the magistrate concludes that
decedent's estate can collect the PTD compensation that decedent allegedly
should have received prior to the date of her death, notwithstanding the
abatement of decedent's industrial claim. This is so under the Liposchak
decision even though decedent apparently had no dependents.
Second Issue: The Non-Medical Factors
{¶ 67} As earlier noted, the second issue is whether the SHO's order
of June 29, 2010 presents an abuse of discretion in the consideration of the
non-medical factors. To begin, the order relies exclusively on the reports of
Dr. Lutz for the determination of residual functional capacity. Ohio
Adm.Code 4121-3-34(B)(4). Based on Dr. Lutz's reports, the commission
determined that the industrial injury permitted sedentary work. Here,
relator does not challenge the commission's reliance upon the reports of Dr.
Lutz, nor does relator challenge the commission's determination that
decedent's residual functional capacity was at the sedentary level. However,
relator does challenge the commission's consideration of the non-medical
factors.
{¶ 68} Analysis continues with the observation that the commission's
order at issue does not address or mention the vocational reports of Dr.
Stoeckel or Mr. Stead, nor does the order address or mention the affidavit of
No. 13AP-285 26
Nancy L. White. Clearly, the commission did not rely on the vocational
reports of Dr. Stoeckel or Mr. Stead, nor did it rely upon the White affidavit.
Moreover, the commission was not required to address or mention the
reports of Dr. Stoeckel and Mr. Stead, or the White affidavit, nor was the
commission required to explain why it apparently rejected that evidence.
State ex rel. Lovell v. Indus. Comm., 74 Ohio St.3d 250-52 (1996).
{¶ 69} Notwithstanding the commission's rejection of that evidence,
relator argues here as if the evidence was relied upon or should have been
relied upon by the commission. Relator's discussion or presentation of
decedent's non-medical factors inappropriately weaves relator's view of
decedent's age, education and work history into the factual scenario.
{¶ 70} For example, in her brief, relator asserts:
The only reason she was able to find work as a receptionist
after her industrial injury was because her family owned a
business and was trying to accommodate her needs.
(Relator's brief, at 20-21.) As another example, in her brief, relator asserts:
[T]he vocational testing performed by Dr. Stoeckel and Mr.
Stead contradict the notion that Ms. Parker was functioning at
a high school graduate level at the time she applied for PTD
benefits.
(Relator's brief, at 23.)
{¶ 71} In effect, relator's argument for a writ of mandamus is but an
invitation that this court reweigh the evidence before the commission. In
mandamus, this court ordinarily does not reweigh the evidence before the
commission. Obviously, this court cannot accept as fact Nancy White's view
of her mother's performance at the receptionist job as indicated in her
affidavit. This court cannot accept relator's proposition that decedent's high
school education is lessened by the vocational testing by Dr. Stoeckel.
{¶ 72} In consideration of the non-medical factors, the commission
is required to address age, education, and work history. See Ohio Adm.Code
4121-3-34(B)(3). The commission appropriately addressed those three
vocational factors in its order.
No. 13AP-285 27
Age
{¶ 73} On the date of the initial adjudication of her PTD application,
decedent was 73 years of age. In its June 29, 2010 order, the commission
finds:
Injured Worker's age was a detriment to her ability to return
to and find employment in a sedentary level position.
However, this detriment in and of itself is not sufficient to find
an Injured Worker permanently and totally disabled
{¶ 74} Ohio Adm.Code 4121-3-34(B)(3)(a) provides:
"Age" shall be determined at time of the adjudication of the
application for permanent and total disability. In general, age
refers to one's chronological age and the extent to which one's
age affects the ability to adapt to a new work situation and to
do work in competition with others.
{¶ 75} In State ex rel. Moss v. Indus. Comm., 75 Ohio St.3d 414(1996), the commission denied PTD compensation to a 78 year old applicant
with an eighth grade education and an ability to read, write, and do basic
math. The claimant had worked as a housekeeper. The Moss court stated:
Our analysis of the commission's order reveals Noll
compliance. In so holding, we recognize the significant
impediment that claimant's age presents to her
reemployment. Workers' compensation benefits, however,
were never intended to compensate claimants for simply
growing old.
Age must instead be considered on a case-by-case basis. To
effectively do so, the commission must deem any
presumptions about age rebuttable. Equally important, age
must never be viewed in isolation. A college degree, for
example, can do much to ameliorate the effects of advanced
age.
[State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373(1996)], [State ex rel. DeZarn v. Indus. Comm., 74 Ohio St.3d
461 (1996)] and [State ex rel. Bryant v. Indus. Comm., 74
Ohio St.3d 458 (1996)] support these propositions.
Collectively, these cases establish that there is not an age-
ever-at which reemployment is held to be a virtual
impossibility as a matter of law. Certainly, it would be remiss
No. 13AP-285 28
to ignore the limitations that age can place on efforts to secure
other employment. However, limitation should never
automatically translate into prohibition.
Each claimant is different, with different levels of motivation,
initiative and resourcefulness. The claimant in Bryant is an
excellent example of a claimant who was motivated to work
well beyond retirement age and was resourceful enough to
find a job that valued the experience that his advanced age
brought.
This underscores the commission's responsibility to
affirmatively address the age factor. It is not enough for the
commission to just acknowledge claimant's age. It must
discuss age in conjunction with the other aspects of the
claimant's individual profile that may lessen or magnify age's
effects.
Id. at 416-17.
{¶ 76} The SHO's order of June 29, 2010 appropriately addresses
decedent's age. That is to say, while her age of 73 years was viewed as a
"detriment" to her ability to return to work, it is not, nor can it be, a
complete bar to employment.
Education
{¶ 77} Ohio Adm.Code 4121-3-34(B)(3)(b) provides:
"Education" is primarily used to mean formal schooling or
other training which contributes to the ability to meet
vocational requirements. The numerical grade level may not
represent one's actual educational abilities. If there is no other
evidence to contradict it, the numerical grade level will be
used to determine educational abilities.
{¶ 78} In its June 29, 2010 order, the commission noted that
decedent had a "twelfth grade education." In that regard, the order
concludes:
The Injured Worker's level of education would be a benefit to
her ability to find employment in the sedentary work
environment.
No. 13AP-285 29
{¶ 79} It can be noted that, on decedent's PTD application, she
indicated that she graduated from high school in 1945 which involved
completion of 12 years of schooling.
{¶ 80} Here, relator endeavors to diminish the value of decedent's
high school education. Relator asserts that decedent's "high school
education from 1945 is highly irrelevant to performing work in 1999."
(Relator's brief, at 22.) Relator also points to Dr. Stoeckel's testing results.
{¶ 81} However, Ohio Adm.Code 4121-3-34(B)(3)(b)(iv) provides:
"High school education or above" means twelfth grade level or
above. The G.E.D. is equivalent to high school education. High
school education or above means ability in reasoning,
arithmetic, and language skills acquired through formal
schooling at twelfth grade education or above. Generally an
individual with these educational abilities can perform semi-
skilled through skilled work.
{¶ 82} In State ex rel. Ewart v. Indus. Comm., 76 Ohio St.3d 139(1996), the court states:
The freedom to independently evaluate nonmedical factors is
important because nonmedical factors are often subject to
different interpretation. We have already recognized this fact
with regard to age and education. As stated in [State ex rel
Ellis v. McGraw Edison Co. (1993), 66 Ohio St.3d 92, 94, 609
N.E. 2d 164, 165]:
"The commission exercised its prerogative in concluding that,
at age fifty-one, claimant was young, not old, and that his age
was a help, not a hindrance. So, too, is the conclusion with
regard to claimant's education, which also derives support
from the record. More so than claimant's age, his education
can be interpreted as either an asset or a liability. While his
grade school level spelling and below-average reading ability
clearly can be perceived negatively, the same rehabilitation
report that determined these academic skills to be a limitation
nonetheless concluded that his high school education was an
asset. The commission was persuaded by the latter
conclusion. Id. at 94, 609 N.E.2d at 165-166.
Id. 141-142.
No. 13AP-285 30
{¶ 83} Here, the commission was not required to lessen the value of
decedent's high school education because the graduation date was in 1945 as
opposed to one of more recent vintage. Obviously, the graduation date of
any graduate recedes in time as the graduate ages.
{¶ 84} Moreover, the commission was not required to devalue
decedent's high school education because of Dr. Stoeckel's testing.
{¶ 85} Clearly, it was well within the commission's fact finding
discretion to view decedent's 1945 high school education as an asset to her
re-employment, notwithstanding that graduation occurred many years ago.
Work History
{¶ 86} Ohio Adm.Code 4121-3-34(B)(3)(c) states:
(iv) "Transferability of skills" are skills that can be used in
other work activities. Transferability will depend upon the
similarity of occupational work activities that have been
performed by the injured worker. Skills which an individual
has obtained through working at past relevant work may
qualify individuals for some other type of employment.
(v) "Previous work experience" is to include the injured
worker's usual occupation, other past occupations, and the
skills and abilities acquired through past employment which
demonstrate the type of work the injured worker may be able
to perform. Evidence may show that an injured worker has
the training or past work experience which enables the injured
worker to engage in sustained remunerative employment in
another occupation. The relevance and transferability of
previous work skills are to be addressed by the adjudicator.
{¶ 87} In its June 29, 2010 order, the commission addresses
decedent's work history or work experience:
Further, the Injured Worker's prior work experience
establishes that she was capable of performing work in a
sedentary level position and had transferable skills in
operating cash registers, answering phones, using copiers,
typing and using various payroll/office equipment. These
skills would have greatly benefited her ability to find
employment in a sedentary position.
No. 13AP-285 31
{¶ 88} Here, relator does not seem to challenge the commission's
consideration of her work experience or that the commission appropriately
identified transferable work skills. It can be noted that the commission's
identification of transferable work skills is supported by decedent's self
reporting on her PTD application.
{¶ 89} In short, the commission did not abuse its discretion in
determining that decedent had transferable work skills.
{¶ 90} In its June 29, 2010 order, the commission determined that,
despite her age, decedent's education and work history provided her the
vocational ability to perform sedentary work. This was a determination well
within the commission's fact finding discretion.
{¶ 91} Based upon the above analysis, the magistrate concludes that
the commission did not abuse its discretion in its consideration of the non-
medical factors.
{¶ 92} Accordingly, it is the magistrate's decision that this court deny
relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).