State ex rel. Honda of Am. Mfg., Inc. v. Indus. Comm. of Ohio ( 2014 )

[Cite as State ex rel. Honda of Am. Mfg., Inc. v. Indus. Comm. of Ohio, 2014-Ohio-5245.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Honda of America Mfg., Inc., :
Relator, :
v. : No. 14AP-82
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Donald Siegfried,
:
Respondents.
:
D E C I S I O N
Rendered on November 25, 2014
Vorys, Sater, Seymour and Pease LLP, Robert A. Minor, and
Christopher C. Wager, for relator.
Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent Industrial Commission of Ohio.
Philip J. Fulton Law Office, and Chelsea J. Fulton, for
respondent Donald Siegfried.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Honda of America Mfg., Inc., has filed this original action seeking a
writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate its order which granted permanent total disability ("PTD") compensation to
respondent Donald Siegfried ("claimant") and to find that he is not entitled to PTD
compensation.
No. 14AP-82 2
{¶ 2} The court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision
including findings of fact and conclusions of law, which is appended hereto. The
magistrate recommends denial of relator's request for a writ of mandamus because some
medical evidence supports the commission's conclusion that claimant is permanently and
totally disabled. Relator filed objections to the magistrate's decision, and the matter is
now before us for our independent review.
{¶ 3} As the magistrate sets out more fully, claimant sustained multiple work-
related injuries, three of which resulted in allowable workers' compensation claims: (1) a
1996 lumbar injury, (2) a 1997 rotator cuff injury, and (3) a 1999 claim for carpal tunnel
syndrome. Claimant first applied for PTD compensation in March 2009. A staff hearing
officer ("SHO") denied the claim on February 17, 2010, relying on reports which
concluded claimant was capable of performing sedentary work with certain limitations.
{¶ 4} Claimant's treating physician, Dr. Stephen Altic, wrote claimant's attorney
that claimant was "permanently totally disabled from all gainful and remunerative
employment." (R. 246.) The letter also described the resulting limitations of claimant's
injuries, including "impaired range of motion of the lumbar spine, and chronic pain."
(R. 246.) In June 2012, claimant applied for PTD with respect to his 1996 lumbar injury
only. In support of his application, claimant submitted the March 13, 2012 letter from Dr.
Altic.
{¶ 5} On December 6, 2012, Stephen Phillips prepared an employability
assessment on claimant. Phillips opined that claimant's age was a disadvantage to
employment and that training was not an option. Ultimately, Phillips concluded claimant
was an unlikely candidate for any sustained remunerative employment. In October 2012,
Dr. E. Gregory Fisher performed an independent medical examination on claimant. Dr.
Fisher concluded all claimant's allowed conditions had reached maximum medical
improvement and he was capable of performing sedentary work with limitations.
{¶ 6} Claimant's PTD application was heard before an SHO on January 10, 2013.
Relying on the medical report of Dr. Altic, the SHO found claimant was entitled to PTD
compensation. Relator filed a request for reconsideration which the commission granted,
and then vacated the SHO's order awarding PTD compensation. The commission then
No. 14AP-82 3
reviewed and considered all the evidence of record. Relying on the medical reports of Drs.
Altic and Fisher, as well as the vocational report of Phillips, the commission found
claimant was entitled to an award of PTD compensation. Thereafter, relator filed this
mandamus action.
{¶ 7} Relator sets forth two objections to the magistrate's decision:
[I.] Competent medical evidence supports that [claimant] is
incapable of sedentary work.
[II.] The Commission properly considered the [State ex rel
Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987)]
factors to its vocational analysis.
{¶ 8} In its first objection, relator contends the magistrate erred by finding
competent medical evidence supported the commission's decision. Specifically, relator
asserts Dr. Altic's report is insufficient as a matter of law because it is a "conclusory
recitation" of conditions allowed for previous claims and provides no analysis of
claimant's limitations. We disagree.
{¶ 9} As explained in the magistrate's decision, under Ohio Adm.Code 4121-3-
34(C)(1), an application for PTD must be "accompanied by medical evidence from a
physician * * * that supports an application for permanent total disability compensation."
Further, the medical evidence must "provide an opinion that addresses the injured
worker's physical and/or mental limitations resulting from the allowed conditions in the
claim(s)." Where the medical evidence establishes that a claimant's PTD is solely a result
of the allowed conditions, the commission may grant PTD compensation on that basis
alone. State ex rel. Hopkins v. Indus. Comm., 70 Ohio St.3d 36 (1994).
{¶ 10} Further, "the commission is the exclusive evaluator of factual evidence in
determining whether an individual is entitled to compensation." State ex rel. Letcher v.
Keco Industries, Inc., 10th Dist. No. 07AP-151, 2008-Ohio-1907, ¶ 6, citing State ex rel.
Cherryhill Mgt., Inc. v. Indus. Comm., 116 Ohio St.3d 27, 2007-Ohio-5508, ¶ 13. As long
as there is some evidence supporting the commission's decision, this court must defer to
the commission's judgment. State ex rel. Athey v. Indus. Comm., 89 Ohio St.3d 473, 475
(2000), citing State ex rel. LTV Steel Co. v. Indus. Comm., 88 Ohio St.3d 284, 287
(2000).
No. 14AP-82 4
{¶ 11} As quoted above, and explained fully in the magistrate's decision, Dr. Altic's
report specifically addressed claimant's physical limitations resulting from his allowed
claim, noting the "impaired range of motion" and "chronic pain." (R. 246.) Dr. Altic
concluded, based on his limitations, that claimant is not capable of sustained
remunerative employment. Therefore, the commission's decision granting claimant PTD
compensation was based on some medical evidence and was not an abuse of discretion.
{¶ 12} Relator's second objection asserts the magistrate erred by concluding the
commission did not perform a correct vocational analysis and, instead, relied on the
vocational conclusions of Phillips.
{¶ 13} Because the commission relied on the medical evidence in Dr. Altic's report
when determining claimant was permanently and totally disabled, we need not address
the State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987), nonmedical
factors. Consideration of nonmedical factors is not necessary when the claimant's
"medical factors alone preclude sustained remunerative employment" and where
" 'nonmedical factors will not render the claimant any more or less physically able to
work.' " State ex rel. Tradesman Internatl. v. Indus. Comm., 10th Dist. No. 13AP-122,
2014-Ohio-1064, ¶ 18, quoting State ex. rel. Galion Mfg. Div., Dresser Industries, Inc. v.
Haygood, 60 Ohio St.3d 38, 40 (1991).
{¶ 14} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration to relator's objections, we
overrule both of relator's objections and adopt the magistrate's findings of fact and
conclusions of law. Accordingly, we deny relator's request for a writ of mandamus.
Objections overruled;
writ of mandamus denied.
BROWN and CONNOR, JJ., concur.
No. 14AP-82 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Honda of America Mfg., Inc., :
Relator, :
v. : No. 14AP-82
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Donald Siegfried,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on July 25, 2014
Vorys, Sater, Seymour and Pease LLP, and Robert A. Minor
and Christopher C. Wager, for relator.
Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent Industrial Commission of Ohio.
Philip J. Fulton Law Office, and Chelsea J. Fulton, for
respondent Donald Siegfried.
IN MANDAMUS
{¶ 15} Relator, Honda of America Mfg., Inc., has filed this original action
requesting that this court issue a writ of mandamus ordering respondent Industrial
Commission of Ohio ("commission") to vacate its order which granted permanent total
disability ("PTD") compensation to respondent Donald Siegfried ("claimant"), and
ordering the commission to find that claimant is not entitled to that compensation.
No. 14AP-82 6
Findings of Fact:
{¶ 16} 1. During the course of his employment with relator, claimant filed claims
for three separate injuries and his workers' compensation claims are allowed for the
following conditions:
96-800022 (date of injury 11/01/1996): Acute lumbosacral
strain, L4 radiculopathy; herniated nucleus pulposus L5-S1;
herniated nucleus pulposus L4-L5; aggravation of pre-
existing lumbar degenerative joint disease; aggravation of
pre-existing lumbar degenerative disc disease and lumbar
stenosis; herniated disc at the L3; and major depressive
disorder.
97-635855 (date of injury 08/29/1997): Partial rotator cuff
tear; right shoulder with impingement.
99-800964 (date of injury 11/30/1999): right lateral
epicondylitis; right carpal tunnel syndrome; right radial
tunnel syndrome.
{¶ 17} 2. In a letter dated June 6, 2008, Janet W. Bay, M.D., noted that claimant
had been under her care for his 1996 work-related injury since 2003, had undergone two
surgical procedures and continued to have on-going low back pain and right sciatica. She
opined that claimant was permanently and totally disabled, stating:
At this point, I believe Mr. Siegfried has reached maximal
medical improvement from his two spinal operations. He has
been left with chronic low back pain and right sciatica that
will require medical treatment. Based on his chronic pain, I
would consider him completely and permanently medically
disabled from any type of labor. It is possible that he might
be able to undergo some type of job retraining for electronics
or some type of other lighter work, but he certainly is not
physically capable of returning to work as a factory worker.
{¶ 18} 3. An independent medical evaluation was performed by Richard M. Ward,
M.D. In his August 21, 2008 report, Dr. Ward noted the history of claimant's injuries,
provided his physical findings upon examination, and opined that only considering the
physical allowances, claimant had severe functional limitations and there really was no
combination of sit, stand, walk options that would add up to a normal eight-hour work
day. Dr. Ward also noted severe limitations on claimant's ability to use his right upper
No. 14AP-82 7
extremity because of loss of motion and marked weakness of grip strength in his right
hand. Ultimately, Dr. Ward opined that claimant was not capable of working to
substantial gainful employment and should be awarded permanent total disability.
{¶ 19} 4. Claimant submitted an application for PTD compensation in March
2009. At the time, claimant was 63 years old, indicated that he had last worked in May
2003, and was receiving Social Security Disability payments. Claimant indicated that he
graduated from high school and attended vocational school to become a barber. Claimant
noted that he could read and perform basic math, and that he could write, but not well. It
was Dr. Bay's report that he submitted in support of his PTD application.
{¶ 20} 5. On April 28, 2009, Mark E. Reynolds, M.D., evaluated claimant for his
allowed psychological condition of major depression disorder, opined that claimant had
an 8 percent impairment and his psychiatric condition would not, in and of itself,
prevent him from being employed nor would it prevent him from participating in
rehabilitation.
{¶ 21} 6. Lewis Seeder, M.D., examined claimant for his allowed physical
conditions. In his May 7, 2009 report, Dr. Seeder noted the history of claimant's
injuries as well as his treatment, provided his physical findings upon examination, and
opined that claimant had a 16 percent impairment and was capable of performing
sedentary work with the following restrictions: sit 6 to 8 hours; stand and walk 0 to 3
hours; lift, carry, push, pull or otherwise move up to 10 pounds 0 to 3 hours; claimant
could occasionally climb stairs but not ladders; could occasionally use foot controls as
well as crouch, stoop, bend, kneel, handle objects and reach over head at waist, knee,
and floor level. Dr. Seeder noted that those restrictions were for claimant's right upper
extremity only.
{¶ 22} 7. Claimant was examined by Joseph W. Duritsch, M.D. In his June 23,
2009 report, Dr. Duritsch identified the allowed conditions in claimant's claims, the
information which he reviewed, and provided a historical account of claimant's injuries
and treatment. Thereafter, Dr. Duritsch provided his physical findings upon
examination, opined that claimant's allowed conditions had reached maximum medical
improvement ("MMI"), determined that claimant had a 23 percent whole person
No. 14AP-82 8
impairment which he attributed exclusively to claimant's back condition, and concluded
that claimant could perform sedentary work.
{¶ 23} 8. Ralph E. Skillings, Ph.D., examined claimant for his allowed
psychological condition. In his July 3, 2009 report, Dr. Skillings identified the medical
records which he reviewed, presented his findings, opined that claimant's allowed
psychological condition had reached MMI, that he had a 10 percent Class 2 mild
impairment, and that he was capable of working.
{¶ 24} 9. Craig Johnston, Ph.D., CRC, prepared an employability assessment
dated September 13, 2009. Dr. Johnston opined that claimant's age of 63 years was a
neutral factor in his ability to secure future employment, that his possession of a high
school diploma qualified him for most entry-level work activities, and that his work
history was a vocational factor which provided him with transferable skills. Dr.
Johnston concluded that claimant was capable of working with the restrictions noted in
the medical records.
{¶ 25} 10. Because he had not considered claimant's allowed shoulder condition,
Dr. Duritsch prepared an addendum report wherein he opined that claimant had a 34
percent whole person impairment, that his allowed conditions had reached MMI, and
that he was capable of performing sedentary work provided he be limited to no reaching
overhead on the right.
{¶ 26} 11. Claimant's application was heard before a staff hearing officer ("SHO")
on February 17, 2010. The SHO relied on the medical reports of Drs. Seeder and
Reynolds to conclude that claimant was capable of performing sedentary work. Having
found that he was capable of performing sedentary work, the SHO considered the non-
medical disability factors. Specifically, the SHO discussed and agreed with the
vocational evaluation and assessment of Dr. Johnston who had concluded that
claimant's age, education, and work experience were all positive vocational factors.
{¶ 27} 12. On March 13, 2012, claimant's treating physician Stephen Altic, D.O.,
sent claimant's attorney the following letter:
This is in response to your 02/15/2012 letter. As you know,
this gentleman sees me on a regular basis for this injury and
its resultant significant multilevel lumbar disc problems.
Given this gentleman's radicular complaints, impaired range
No. 14AP-82 9
of motion of the lumbar spine, and chronic pain for the
conditions allowed in this claim: 722.10, 724.4, 721.90,
722.52, and 724.02, in my medical opinion he is impaired by
these conditions to the extent that he is permanently totally
disabled from all gainful and remunerative employment.
{¶ 28} 13. Claimant completed and filed a second application for PTD
compensation listing only the 1996 claim. On this application, claimant indicated that he
could read, write, and perform basic math. (Previously, claimant indicated that he could
write, but not well.)
{¶ 29} 14. Claimant was seen again by Dr. Seeder. In his August 10, 2012 report,
Dr. Seeder listed the allowed conditions in all of claimant's claims, opined that those
allowed conditions had reached MMI, concluded that claimant had a 9 percent whole
person impairment (opined 16 percent in 2009), noted that there had been no changes
in claimant's status, and again concluded that he was capable of performing work with
the following limitations: sit 6 to 8 hours; stand and walk 0 to 3 hours; lift or carry up to
10 pounds 0 to 3 hours; (Dr. Seeder did not indicate how much claimant could push,
pull, or otherwise move, but he previously had indicated less than 10 pounds 0 to 3
hours.); occasionally climb stairs but not ladders; occasionally use foot controls; crouch,
stoop, bend, kneel, handle objects, and reach overhead at waist, knee, and floor level.
These restrictions were for the right upper extremity only.
{¶ 30} 15. An independent medical examination was performed by E. Gregory
Fisher, M.D. In his October 27, 2012 report, Dr. Fisher identified the allowed conditions
in claimant's claims, provided claimant's medical history, identified the medical records
which he reviewed, provided his physical findings upon examination, and concluded
that claimant's allowed conditions had all reached MMI, assessed a 28 percent whole
person impairment (23 percent of that was for claimant's allowed back condition), and
opined that claimant was capable of performing sedentary work with the following
restrictions:
He should have a weight limitation of 5 pounds frequently
and 10 pounds occasionally. He should avoid bending and
twisting at the waist level and avoid climbing ladders or
stairs.
No. 14AP-82 10
{¶ 31} 16. The record also contains a November 16, 2012 letter by Dr. Bay
addressed to claimant's treating physician Dr. Altic. In that letter, Dr. Bay explained why
she believed additional surgery was necessary:
[Relator] underwent a right L3 diskectomy and a re-fusion of
L3 through 5 with new instrumentation. He did well from
both these procedures and awakened feeling better, although
he never was symptom-free and never was able to return to
work.
He comes now with progressive symptoms of burning and
pain in his legs, weakness requiring a cane to walk, and some
numbness in his lower extremities, as well.
His MRI scan does show adjacent segment disease with L2-3
stenosis just above the site of his upper pedicle screws.
I do believe he has mechanical cauda equina compression as
a source of his pain, numbness, and weakness. I have
recommended a decompressive laminectomy at L2 with
extension of his fixation and fusion from L2 down to L5.
Indications and risks were discussed with him. I certainly
cannot guarantee that he would be pain-free, but I think we
can improve his neurological complaints and hopefully his
pain to a degree, as well.
As doctor of record, I would appreciate it if you would obtain
consent from the Industrial Commission for this procedure.
Please let me know if you need any further information.
{¶ 32} 17. An employability assessment was prepared by Stephen Phillips, CRC,
CDMS, dated December 6, 2012. In his report, Mr. Phillips indicated that claimant had a
(att. 19) "70% permanent partial disability award from BWC." (This information is not
provided elsewhere in the stipulation of evidence and could not be verified.) Mr. Phillips
noted that there was no documentation that claimant was aware of or turned down an
offer of vocational rehabilitation services. Further, Mr. Phillips found that claimant's age
of 67 was a disadvantage, that training was not an option despite his high school
education, and that he had no transferrable skills. As such, Mr. Phillips concluded that
claimant was a very unlikely candidate for any sustained remunerative employment.
No. 14AP-82 11
{¶ 33} 18. Dr. Johnston rendered a second employability assessment. Dr.
Johnston concluded that claimant's age was a potential barrier, that his high school
diploma would qualify him for most entry-level work, that his work history was an asset
to his ability to secure future employment as it provided him with certain transferable
skills. Dr. Johnston ultimately concluded that claimant was capable of working.
{¶ 34} 19. Claimant's application was heard before an SHO on January 10, 2013.
The SHO relied upon the medical report of Dr. Altic to find that claimant was entitled to
an award of PTD compensation, specifically stating:
The medical evidence on file supports a finding that the
Injured Worker underwent a laminectomy subsequent to the
2010 denial of a permanent and total disability application.
The Staff Hearing Officer finds that since that finding in
2010 and as a result of the newly allowed conditions and
surgical procedures the Injured Worker has suffered a
significant worsening of his condition. Dr. Altic has stated
that the Injured Worker's radicular complaints, his impaired
range of motion along with chronic pain has resulted in the
permanency of the condition and his inability to return to
gainful employment.
{¶ 35} 20. Relator filed a request for reconsideration setting forth what relator
believed to be the following clear mistakes of fact and law:
[T]he staff hearing officer:
 Recited the incorrect conditions allowed and
disallowed in Claim No. 96-800022 (the only claim in
which PTD compensation was awarded);
 The hearing officer incorrectly found new and
changed circumstances since the denial of an earlier
PTD application. Specifically, she cited to a surgical
procedure that she stated took place since the denial
of an earlier application for PTD compensation. The
surgery actually took place prior to the previous denial
of PTD benefits;
 The six-line report of Dr. Altic (the sole support for
the award) lists conditions in Claim N0. 96-800022
which have not been allowed;
No. 14AP-82 12
 Dr. Altic has authored a request that the claimant
undergo surgery, which is inconsistent with a finding
of PTD; and
 There were no meaningful new and changed
circumstances since the denial of the previous
application and the awarding of PTD compensation
constitutes a mistake of law.
{¶ 36} 21. Claimant filed a memorandum contra asserting there was no
requirement that he establish new and changed circumstances, that the SHO only
considered the allowed conditions, and there was no abuse of discretion in granting him
PTD compensation.
{¶ 37} 22. In an interlocutory order, the commission set relator's request for
reconsideration for hearing.
{¶ 38} 23. Dr. Bay authored another letter dated July 2, 2013, stating:
Mr. Donald Siegfried has been under my care sine 2003 for
spinal pathology dating back to a work-related injury
suffered in 1996. In 2003, he underwent a decompressive
laminectomy of L4-5 with a left discectomy. He did well
thereafter until 2005, when he developed adjacent segment
disease with a herniated disk on the right at L3-4. His fusion
was extended up to include the L3 level.
He did well for many years until this year when he developed
recurrent pain, and earlier this year he underwent an
extension of his fusion up to include the L2 level with an
interbody graft at L2-3 as well. At this point, he is fused from
L2 through L5.
All of his surgical procedures are flow-through from that
original injury back in 1996, which was work-related. He has
been left with some chronic pain in his back and leg. He
does get around with a cane.
In my opinion, he is completely and permanently medically
disabled in regard to his back. Should you have any further
questions, please feel free to contact this office.
{¶ 39} 24. Relator's request for reconsideration was heard before the commission
on July 9, 2013.
No. 14AP-82 13
{¶ 40} 25. The commission granted relator's request for reconsideration and
vacated the SHO's order from the January 10, 2013 hearing (mailed January 26, 2013).
Thereafter, the commission relied on the medical reports of Drs. Altic and Fisher and
the vocational report of Mr. Phillips to find that claimant was entitled to an award of
PTD compensation. Specifically, the commission order states:
It is the order of the Commission that the Injured Worker's
Application for Permanent Total Disability filed 06/15/2012
is granted. Payment of permanent total disability
compensation is to start 03/13/2012, the date of the report
from Stephen Altic, D.O., which is the first report since the
previous denial hearing of 02/17/2010, to opine on the issue
of permanent total disability.
The cost of this award is apportioned 100% in claim 96-
800022, which is the only claim considered by Dr. Altic in
his letter dated 3/13/2012, specifically finding permanent
total disability.
The Commission finds the Injured Worker is unable to
perform, or be retrained for, any sustained remunerative
employment as a result of the allowed conditions in claim
number 96-800022. This decision is based on the
03/13/2012 report of Dr. Altic, who opined the Injured
Worker was unable to perform sustained remunerative
employment, and the 10/27/2012 opinion of E. Gregory
Fisher, M.D., that the Injured Worker is capable of less than
sedentary work activities. In his examination report of
10/27/2012, Dr. Fisher found the Injured Worker had to
avoid bending and twisting at waist level, avoid climbing
stairs or ladders, lifting no more than five pounds on a
frequent basis and no more than ten pounds on an
occasional basis.
The Commission also relies upon the 12/06/2012 report
from Stephen Phillips CRC, CDMS. Mr. Phillips found that
the Injured Worker's age of 67 to be a disadvantage in
seeking work, especially in low strength jobs, and retraining
to be difficult given the Injured Worker's need to change
positions and the length of time since his last academic
experience. Given the Injured Worker's age and current
physical limitations, Mr. Phillips opined that the Injured
Worker "is limited in his ability to compete in today's job
No. 14AP-82 14
market" and that he is a very "unlikely candidate for any
sustained, remunerative employment."
{¶ 41} 26. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 42} Relator asserts that the commission abused its discretion by: (1) concluding
that claimant was permanently and totally disabled from a medical perspective where
there is no competent medical evidence in the record to support that conclusion and the
evidence relied upon by the commission indicates that claimant is capable of sedentary
work, and (2) relying solely upon the vocational report of Mr. Phillips without conducting
its own vocational analysis.
{¶ 43} The magistrate finds that the commission did not abuse its discretion
when it: (1) used Dr. Altic's medical report to set the start date for PTD compensation
and relied on the medical report of Dr. Fisher to find that claimant was capable of
sedentary work, and (2) relied on Mr. Phillips' vocational analysis.
{¶ 44} The Supreme Court of Ohio has set forth three requirements which must
be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal
right to the relief prayed for; (2) that respondent is under a clear legal duty to perform
the act requested; and (3) that relator has no plain and adequate remedy in the ordinary
course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 45} 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).
No. 14AP-82 15
{¶ 46} The relevant inquiry in a determination of permanent total disability is
claimant's ability to do any sustained remunerative employment. State ex rel.
Domjancic v. Indus. Comm., 69 Ohio St.3d 693 (1994). Generally, in making this
determination, the commission must consider not only medical impairments but also
the claimant's age, education, work record and other relevant non-medical factors.
State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's
medical capacity to work is not dispositive if the claimant's non-medical factors
foreclose employability. State ex rel. Gay v. Mihm, 68 Ohio St.3d 315 (1994). The
commission must also specify in its order what evidence has been relied upon and
briefly explain the reasoning for its decision. State ex rel. Noll v. Indus. Comm., 57 Ohio
St.3d 203 (1991).
{¶ 47} Relator first argues that Dr. Altic's report is conclusory and does not offer
any scientific or medical analysis of the effect of the impairment on claimant. Relator
cites this court's decision in State ex rel. Findlay Indus. v. Indus. Comm., 10th Dist. No.
09AP-52, 2009-Ohio-4384 and Ohio Adm.Code section 4121-3-34(C)(1). For the
reasons that follow, the magistrate finds that this case and code section do not require
that Dr. Altic's report be removed from evidentiary consideration.
{¶ 48} In Findlay Indus., this court adopted the decision of its magistrate
including the determination that the report of Dr. Miller did not constitute some
evidence upon which the commission could rely to award PTD compensation to Karen
Fuson. Specifically, this court stated:
First, turning to the report of Dr. Miller, the magistrate notes
that relator is correct in pointing out that some of the
statements in his report are not given within a reasonable
degree of medical certainty or probability. The following
statements are problematic: (1) "the patient is * * * unlikely
to be able to sustain employment based on her somatic style,
persistent pain, and fixation / over-identification with the
sick rule"; (2) "[m]y guess is that she will never be able to
return to work based on the combination of pain and
emotional distress"; (3) "I do not think that she will be able
to sustain any sort of employment based on her vacillating
agitation, somatic style and focus, irritability, and sense of
feeling disabled"; and (4) "I believe that her vacillating
No. 14AP-82 16
symptomatology supports the notion that she will remain
permanently disabled."
The above four sentences are problematic because they are
prefaced with words such as "unlikely," "my guess," "I do not
think," and "I believe." The use of those words does not
demonstrate any certainty or probability and, for those
reasons, Dr. Miller's report is compromised. Dr. Miller also
stated that "[t]he claimant is not capable of full-duty work";
however, nowhere in Dr. Miller's report did he address the
psychological limitations resulting from claimant's allowed
psychological condition. As such, Dr. Miller's report does not
comply with the requirements of Ohio Adm.Code 4121-3-
34(C)(1) which provides, in pertinent part:
Each application for permanent total disability shall be
accompanied by medical evidence from a physician, or a
psychologist or a psychiatric specialist in a claim that has
been allowed for a psychiatric or psychological condition,
that supports an application for permanent and total
disability compensation. * * * The medical evidence used to
support an application for permanent total disability
compensation is to provide an opinion that addresses the
injured worker's physical and/or mental limitations resulting
from the allowed conditions in the claim(s).
For these reasons, Dr. Miller's report does not constitute
some evidence upon which the commission could properly
rely to support an award of PTD compensation.
Id. ¶ 26-28.
{¶ 49} Dr. Altic's report does not present the same problems which Dr. Miller's
report presented. The opinions in Dr. Miller's report were not given within a reasonable
degree of medical certainty or probability. Instead, Dr. Miller's opinions were
inconclusive and did not support an award of PTD compensation. By comparison, Dr.
Altic's report specifically indicates that claimant's allowed conditions render him
permanently and totally disabled.
{¶ 50} Relator also contends that Dr. Altic's report fails to satisfy the
requirements of Ohio Adm.Code 4121-3-34(C)(1), above quoted because he fails to
address claimant's limitations. However, the magistrate specifically notes that Dr. Altic
was claimant's physician of record and specifically opined that given claimant's
No. 14AP-82 17
radicular complaints, impaired range of motion of the lumbar spine, and chronic pain,
he was incapable of performing some sustained remunerative employment. The
magistrate finds that Dr. Altic's statements are sufficient to satisfy the minimum
requirements of the Ohio Administrative Code. As such, Dr. Altic's report constitutes
some evidence upon which the commission could rely to find that claimant was
permanently and totally disabled.
{¶ 51} Relator also contends that the commission abused its discretion by relying
on the report of Dr. Fisher because the commission characterized Dr. Fisher's report as
concluding that claimant was capable of less than sedentary activities. Relator contends
that this is a clear mistake of fact. Relator asserts that Dr. Fisher's limitations on
claimant's ability to lift no more than five pounds on a frequent basis and no more than
ten pounds on an occasional basis fall squarely within the definition of sedentary
employment. Relator does not contend that there is any flaw in Dr. Fisher's report.
Instead, relator argues that the commission abused its discretion when it determined
that he opined that claimant was capable of performing less than sedentary work.
{¶ 52} Ohio Adm.Code 4121-3-34(B)(2)(a) states:
"Sedentary work" means exerting up to ten pounds of force
occasionally (occasionally: activity or condition exists up to
one-third of the time) and/or a negligible amount of force
frequently (frequently: activity or condition exists from one-
third to two-thirds of the time) to lift, carry, push, pull, or
otherwise move objects. Sedentary work involves sitting most
of the time, but may involve walking or standing for brief
periods of time. Jobs are sedentary if walking and standing
are required only occasionally and all other sedentary criteria
are met.
{¶ 53} When reading the above definition for sedentary work, it must be
remembered that a job is classified as "sedentary" provided that the job does not require a
person to lift more than ten pounds of force occasionally and/or a negligible amount of
force frequently to lift, carry, push, pull, or otherwise move objects. Not all sedentary jobs
require a person to lift ten pounds of force occasionally; however, a job cannot be
classified as sedentary if it requires one to exert more than ten pounds of force
occasionally.
No. 14AP-82 18
{¶ 54} Relator is correct to note that the lifting restrictions imposed by Dr. Fisher
fit within the definition of sedentary work. While Dr. Fisher did put additional
limitations on claimant, specifically indicating that he refrain from bending and twisting
at waist level, those restrictions do not necessarily indicate that claimant is capable of
less than sedentary work. It must be remembered that the definition of sedentary work
identifies the maximum level of exertion which a job can have and still be considered
sedentary. Here, the magistrate does not find the commission's characterization of Dr.
Fisher's report to be fatal.
{¶ 55} Arguably, the commission overstated Dr. Fisher's report slightly.
However, even if Dr. Fisher's report is removed from evidentiary consideration, the
report of Dr. Altic still constitutes some evidence upon which the commission could rely
to find that, solely as a result of the allowed conditions in his claim, claimant was
permanently and totally disabled. If Dr. Fisher's report remains in evidentiary
consideration, the magistrate notes that the commission also relied on the employability
assessment of Mr. Phillips. While it is true that the commission is considered the
vocational expert and does not need to consider or rely on any vocational expert, if
vocational reports extensively discuss and analyze all relevant non-medical factors, the
commission does not need to repeat the analysis in its order. See State ex rel. Hunt v.
Indus. Comm., 10th Dist. No. 94APD11-1659 (Sept. 28, 1995) (memorandum decision)
and State ex rel. Freeman v. Indus. Comm., 10th Dist. No. 97APD02-251 (Mar. 17, 1998)
(memorandum decision). To the extent that relator also argues that this court should
apply the holding from Findlay Indus., discussed relative to Dr. Altic's report, the
magistrate disagrees. The requirement that physicians must state their opinions within
a reasonable degree of medical certainty does not extend to opinions rendered by
vocational specialists.
{¶ 56} Based on the foregoing, it is this magistrate's decision that the commission
did not abuse its discretion when it granted permanent total disability compensation to
claimant Donald Siegfried and this court should deny relator's request for a writ of
mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA BROOKS
No. 14AP-82 19
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).