State ex rel. Webber v. Blue Ash Care Ctr.

[Cite as State ex rel. Webber v. Blue Ash Care Ctr., 2018-Ohio-978.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Veronica E. Webber, :
Relator, :
No. 16AP-676
v. :
(REGULAR CALENDAR)
Blue Ash Care Center et al., :
Respondents. :
D E C I S I O N
Rendered on March 15, 2018
On brief: Lisa M. Clark, for relator.
On brief: Michael DeWine, Attorney General, and Amanda B.
Brown, for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator Veronica E. Webber initiated this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order denying her application for permanent total disability
("PTD") compensation and to enter an order finding that she is entitled to that
compensation.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law. The magistrate
determined that Webber has not demonstrated that the commission abused its discretion
No. 16AP-676 2
in denying her application for PTD compensation. Thus, the magistrate recommends this
court deny Webber's request for a writ of mandamus.
{¶ 3} Webber has filed objections to the magistrate's decision. First, she challenges
the magistrate's determination that the commission did not abuse its discretion in relying
on psychologist Dr. Kenneth Manges' report as a basis to deny her request for PTD
compensation. Second, she contends the magistrate erroneously found that the
commission did not abuse its discretion in considering the non-medical factors in
connection with denying her request for PTD compensation. The arguments Webber
presents in support of these objections are essentially the same arguments that were
presented to and rejected by the magistrate.
{¶ 4} According to Webber, Dr. Manges' report contains a deficiency that precludes
it from constituting some evidence upon which the commission could rely to deny her
request for PTD compensation. On an occupational activity assessment form, attached to
his narrative report, Dr. Manges opined that Webber "is capable of work with the
limitation(s)/modification(s) noted below." (Nov. 14, 2016 Joint Stipulation of Evidence at
20952-A24.) In the space provided on the form, Dr. Manges handwrote: "minimal contact
with public, difficulties speaking with supervisor, flexibility in time to allow for a slower
pace and allow for short, simple tasks." Webber argues that Dr. Manges' statement
regarding her limitations was vague and ambiguous, necessarily requiring the commission
to speculate as to the true nature of those limitations. We disagree. While Webber may
have preferred more exacting language, Dr. Manges' statement articulates work limitations
with reasonable precision. Thus, we agree with the magistrate's rejection of Webber's
argument that Dr. Manges' report was so flawed that the commission committed an abuse
of discretion by relying on it to deny her PTD compensation.
{¶ 5} Webber also argues the commission did not adequately consider all of the
limitations set forth by Dr. Manges, and, even if it did consider all of the limitations, it did
not explain why it did not accept all of them. In particular, Webber asserts that the
commission ignored or rejected Dr. Manges' opinion that she would require flexibility in
time to allow for a slower pace. She bases this assertion on the fact that the commission's
order does not expressly refer to Dr. Manges' statement that Webber must have "flexibility
in time to allow for a slower pace." Webber asserts that this limitation arguably would
No. 16AP-676 3
interfere with her ability to perform sustained remunerative work. Webber reasons that
the commission's failure to either consider this limitation or explain why the limitation
finding was rejected fatally flawed the commission's order.
{¶ 6} However, the commission's omission of an express reference to that
limitation in its order denying PTD compensation does not mean the commission did not
consider it or that it rejected that finding. The commission expressly found that Webber
retains the functional capacity to perform sustained remunerative employment when the
impairments arising out of the allowed conditions are considered. Thus, it viewed that
limitation as not constituting a barrier to Webber performing sustained remunerative
employment. We therefore agree with the magistrate's finding that the fact that the
commission did not expressly reference this limitation in its order denying Webber's
request for PTD compensation did not fatally flaw the commission's reliance on
Dr. Manges' report and the attached assessment.
{¶ 7} Lastly, we reject Webber's argument that the commission improperly
addressed non-medical factors relating to her ability to work. Generally, in determining a
claimant's ability to do any sustained remunerative employment, 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). Webber asserts that, based on Dr. Manges' assessment that she is limited
to "short, simple tasks," her industrial injury limits her to "unskilled work," which requires
"little or no judgment to do simple duties that can be learned on the job in a short period of
time." Ohio Adm.Code 4121-3-34(B)(3)(c)(i). Webber argues that the commission abused
its discretion in finding her age, education, and work history all to be vocational assets that
enhance her ability to obtain and perform sustained remunerative employment. She
contends that each of these factors is either inconsequential or irrelevant to her
reemployment prospects.
{¶ 8} However, as the magistrate explained, even assuming Webber's residual
functional capacity limits her to unskilled labor, these non-medical factors are relevant to
her ability to acquire and learn to do an unskilled job. While unskilled work only requires
No. 16AP-676 4
the performance of simple duties, such work may require some, albeit minimal, vocational
preparation and judgment. Thus, it was not unreasonable for the commission to view
Webber's non-medical factors as positive vocational assets even assuming she is only
capable of unskilled work.
{¶ 9} For these reasons, and the reasons expressed in the magistrate's decision, we
find that Webber's objections lack merit.
{¶ 10} Following our independent review of the record pursuant to Civ.R. 53, we find
the magistrate correctly determined that Webber is not entitled to the requested writ of
mandamus. The magistrate properly applied the pertinent law to the salient facts.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein. We therefore overrule Webber's objections to
the magistrate's decision and deny her request for a writ of mandamus.
Objections overruled;
writ of mandamus denied.
SADLER and DORRIAN, JJ., concur.
No. 16AP-676 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Veronica E. Webber, :
Relator, :
v. : No. 16AP-676
Blue Ash Care Center, et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
NUNC PRO TUNC1
Rendered on September 18, 2017
Lisa M. Clark, for relator.
Michael DeWine, Attorney General, and Amanda B. Brown,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 11} In this original action, relator, Veronica E. Webber, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the June 28, 2016 order of its staff hearing officer ("SHO") that denied relator's
application for permanent total disability ("PTD") compensation, and to enter an order
granting the compensation.
1 This magistrate's decision replaces, nunc pro tunc, the original magistrate's decision
released September 13, 2017 to reflect the correct counsel of record for the Industrial
Commission of Ohio.
No. 16AP-676 6
Findings of Fact:
{¶ 12} 1. On October 16, 2005, relator injured her lower back while employed by
respondent Blue Ash Care Center in housekeeping/laundry. Respondent is a state-fund
employer.
{¶ 13} 2. On October 16, 2005, relator completed a form provided by the Ohio
Bureau of Workers' Compensation ("bureau") that is captioned "First Report of an Injury,
Occupational Disease or Death." The bureau designates the form as a "FROI-1." On the
form, the applicant is asked to describe the accident. In the space provided, relator wrote:
I picked up a heavy laundry bag out of barrel and the bag
broke and I came up quick and I felt this pain like someone hit
me across my back.
{¶ 14} 3. The industrial claim (No. 05-401588) is allowed for:
Lumbar strain; aggravation of pre-existing spondylolisthesis
at L5-S1 and aggravation of pre-existing degenerative disc
disease at L5-S1; aggravation of pre-existing pseudoarthrosis
L5-S1; postlaminectomy syndrome lumbar; depressive
disorder; pain disorder associated with both a general medical
condition and psychological factors.
{¶ 15} 4. In November 2013, relator began psychotherapy for her depressive
symptoms. The psychotherapy was performed by psychologist William C. Melchior,
Ed.D.
{¶ 16} 5. On December 21, 2015, Dr. Melchior wrote to relator's counsel. In his
three-page narrative report, Dr. Melchior states:
In summary, Ms. Webber is a 40 year old woman with
significant psychological limitations due to her industrial
injuries. Unfortunately, as noted above, Ms. Webber has
significant limitation in her work functioning based on her
allowed psychological conditions including impairment in
stress tolerance, cognitive functioning, social functioning, and
endurance/pace. I don't expect any further psychological
improvement and am recommending permanent total
disability.
I will continue to see her on a bi-weekly/monthly basis to
maintain treatment gains and prevent further relapse.
No. 16AP-676 7
{¶ 17} 6. On January 22, 2016, relator filed an application for PTD compensation.
In support, relator submitted the December 21, 2015 report of Dr. Melchior.
{¶ 18} 7. On March 1, 2016, at the commission's request, relator was examined by
psychologist Kenneth J. Manges, Ph.D. In his seven-page narrative report, Dr. Manges
states:
Mental Status Exam
Attitude
She was cooperative during the interview. She reports having
feelings of helplessness and hopelessness. She related to this
examiner in a depressed manner. She had no difficulty in
keeping a train of thought during the interview.
She is anxious about the way her life has turned out and
reports "I feel sorry for myself."
She reports others say she worries too much and she too
believes her worry is excessive at times.
She was able to do a serial 3 subtraction task. She was able to
do a mental computation addition, subtraction, addition [sic]
and division problem without difficulty. She [is] able to recite
her ABC's without difficulty. She was able to spell a common
word forward and backward. She was able to remember the
name of this examiner some twenty minutes after being
introduced. She knew the date of the month and the day of the
week. She knew the address of the location where the testing
took place. She was only able to recall the current and one of
the two most recent past Presidents of the United States. She
had a good short term memory. She was able to recall four of
four items after fifteen minutes with no prompts.
Mood and Affect:
Ms. Webber's mood was characterized by depression. She did
not evidence any PTSD symptoms. She denies any OCD
symptoms/features.
She reports a phobia for closed spaces.
Speech:
No. 16AP-676 8
Her speech was not atypical in rate, rhythm or tone. She did
not stutter, she did not have any articulation problems. She
spoke clearly and fluently. She had no difficulty carrying out a
conversation.
Perceptual Disturbances
There was a denial of any auditory or visual hallucinations.
Thought Processes
Her thought processes were focused on her injuries. She was
logical and coherent.
Thought Content
Thought content was relevant to the focus of the interview.
Cognition
Her cognitive functioning appeared grossly within normal
limits and suggested an average intelligence.
Insight and Judgment
Her insight was adequate as evidenced by her response to the
questions listed below. When asked "What would you do if you
won the lottery?" She said "Pay off my bills."
When asked "What are you most proud of?" She said "My
children."
When asked "Do you have any major regrets?" She said
"None."
When asked "If you could change one thing about your life,
what would it be?" She said "My weight."
When asked "Do you make good decisions?" She said "Yes."
When asked to give an example she said "Getting married."
***
Multiaxial Diagnosis
No. 16AP-676 9
Depressive disorder; pain disorder with general medical
conditions and psychological factors. No personality disorder.
Medical conditions allowed in the claim and scoliosis.
Occupational, financial and accommodation problems. GAF
60 moderate symptoms.
Opinions
Question # 1. If you believe the injured worker is still at
maximum medical improvement, based on the AMA Guides,
second and fifth edition, and with reference to the Industrial
Commission Manual, provide the estimated whole person
impairment arising from the psychological/psychiatric
condition. Provide the class and percentage of impairment
due to the allowed psychological/psychiatric condition in each
of the four functional areas, and then provide the percentage
of whole person impairment. If there is no impairment for an
allowed condition indicate a zero percentage.
Answer: Yes. The [Injured Worker] is still MMI.
Although she continues to participate in outpatient
treatment she has achieved psychological stability
and no additional treatment would realistically
significantly change her psychological condition.
Answer: The [Injured Worker] demonstrates a Class
3 moderate whole person psychological impairment
of 25% which is compatible with some but not all
useful functioning as a direct and proximate result of
her BWC injury #05-401588.
Activities of Daily Living: 25% impairment level
which is compatible with some but not all useful
functioning for example, she avoids taking on any
new challenges and is distracted by her inability to
work or enjoy recreational pastimes as she had pre
injury. Other family members do the household
chores.
Social Functioning: 20% impairment level are
compatible with most useful functioning. For
example, she continues to meet with friends on a
monthly basis but avoids crowds, or taking on new
challenges.
No. 16AP-676 10
Concentration: 20% impairment. Levels are
compatible with most useful functioning as she was
able to recall 4 out of 4 items, after 15 minutes but she
was only able to name two of the last three presidents
and had difficulty with a serial subtraction 7 task.
Adaptation: 20% impairment. Levels are compatible
with most useful functioning. For example, although
she [is] preoccupied with her pain she is still able to
make every day decisions and problem solve as well
as socialize on a routine basis.
(Emphasis sic.)
{¶ 19} 8. On March 15, 2016, Dr. Manges completed a form provided by the
commission captioned "Occupational Activity Assessment, Mental & Behavioral
Examination."
{¶ 20} On the form, Dr. Manges indicated by his mark "[t]his Injured Worker is
capable of work with the limitation(s)/modification(s) noted below."
{¶ 21} In the space provided, Dr. Manges wrote in his hand as follows:
Minimal contact with public, difficulties speaking with
supervisor, flexibility in time to allow for a slower pace and
allow for short, simple tasks.
{¶ 22} 9. On April 7, 2016, at the commission's request, relator was examined by
Steven S. Wunder, M.D. In his four-page narrative report, Dr. Wunder wrote:
Physical examination revealed her to be a well-developed and
well-nourished, overweight female in no acute distress. She
was about 5 feet, 6 inches in height and weighed 276 pounds
with a body mass index of about 45. In the pain management
records from Dr. Klickovich, it was noted that her BMI was 44.
(The examination was chaperoned by her mother.) She was
independent with sit to stand. She ambulated without
antalgia. Tandem walking was intact. She could stand on her
heels and toes.
Inspection of the spine revealed a 19-cm scar. She had diffuse,
superficial tenderness to palpation around the back area. She
also had some accelerated pain with axial compression and
rotation, which are nonorganic findings.
No. 16AP-676 11
She had nonorganic findings on checking range of motion
with 30 degrees of a lumbar flexion angle and 90 degrees of a
straight leg raise. Extension was 10 degrees and lateral
bending was 10 degrees.
She was able to independently ascend and descend the exam
table, without assistance.
Neurologically, her reflexes were 1+ and symmetric at the
patellar tendon and 2+ and symmetric at the Achilles tendon.
Sensation was decreased over the right and left lateral thighs.
Her motor strength was normal.
Her thigh circumferences were symmetric at 53 cm. The calf
circumferences were 42 cm on the right and 43.5 cm on the
left with the difference being a larger varicose vein on the left
side compared to the right.
She had normal motion of the ankles and knees. She
complained of some low back pain with hip range of motion.
{¶ 23} 10. On April 7, 2016, Dr. Wunder completed a commission form captioned
"Physical Strength Rating." On the form, Dr. Wunder indicated by his mark that relator
is capable of "light work."
{¶ 24} 11. Following a June 28, 2016 hearing, an SHO issued an order denying the
PTD application. The order explains:
After full consideration of the issue, it is the order of the Staff
Hearing Officer that the Injured Worker's IC-2 Application for
Permanent Total Disability Compensation, filed 01/22/2016,
be denied.
The Injured Worker is a 40-year-old female who has one
Workers' Compensation claim. This claim, claim number 05-
401588, is predicated upon an industrial accident which
occurred on 10/16/2005 when the Injured Worker injured her
low back while lifting a laundry bag out of a barrel. This claim
also has a psychological component.
Steven Wunder, M.D., examined the Injured Worker on
04/07/2016 at the request of the Industrial Commission. Dr.
Wunder examined the Injured Worker on the allowed
physical conditions and concludes that the allowed physical
conditions have reached maximum medical improvement.
No. 16AP-676 12
Dr. Wunder further opines that the Injured Worker retains
the functional capacity to perform light work when the
impairments arising from the allowed physical conditions are
considered. Light work includes the ability to exert 20 pounds
of force one-third of the time, 10 pounds of force two-thirds of
the time, and negligible force constantly. Light work may also
include jobs which require walking or standing to a significant
degree and jobs which require working at a production rate.
Kenneth Manges, Ph.D., examined the Injured Worker on
03/01/2016 at the request of the Industrial Commission. Dr.
Manges examined the Injured Worker on the allowed
psychological conditions and concludes that the allowed
psychological conditions have reached maximum medical
improvement.
Dr. Manges further opines that the Injured Worker is capable
of performing sustained remunerative employment when the
impairments arising out of the allowed psychological
conditions are considered. Dr. Manges does indicate that the
Injured Worker would be limited to positions with minimal
contact with the public and jobs which contain simple and
repetitive tasks. Dr. Manges also indicates that the Injured
Worker would have difficulty talking to a supervisor.
Based upon the reports of Dr. Wunder and Dr. Manges, the
Staff Hearing Officer finds that all allowed conditions have
reached maximum medical improvement.
The Staff Hearing Officer further finds, based upon the
reports of Dr. Wunder and Dr. Manges, that the Injured
Worker retains the functional capacity to perform sustained
remunerative employment when the impairments arising out
of the allowed conditions are considered.
Additionally, when the Injured Worker's impairments arising
out of the allowed conditions are considered in conjunction
with the Injured Worker's non-medical disability factors, the
Staff Hearing Officer finds that the Injured Worker retains the
functional capacity to perform sustained remunerative
employment and is therefore not permanently totally
disabled.
The Staff Hearing Officer finds that the Injured Worker's age,
40 years old, does not constitute a barrier to re-employment.
Individuals of the Injured Worker's age expect to remain in
No. 16AP-676 13
the workforce for a number of years. Further, individuals of
the Injured Worker's age have the opportunity, through
vocational training or on-the-job training, to acquire new job
skills which may enhance their ability to gain re-employment.
Accordingly, the Staff Hearing Officer finds that the Injured
Worker's age constitutes a positive vocational asset.
The Staff Hearing Officer finds that the Injured Worker is a
high school graduate who has also completed one year of
college course work at Cincinnati State University in graphic
design. The Staff Hearing Officer finds that the Injured
Worker's educational history demonstrates that the Injured
Worker can read, write, and perform basic math skills, as
would be expected of an individual with the Injured Worker's
level of formal education. Further, a high school diploma
ordinarily qualifies the Injured Worker for semi-skilled to
skilled employment. See Ohio Adm.Code 4121-3-
34(B)(3)(b)(iv). Accordingly, the Staff Hearing Officer finds
that the Injured Worker's educational history constitutes a
positive vocational asset which enhances the Injured Worker's
ability to gain re-employment.
The Staff Hearing Officer finds that the Injured Worker's IC-
2 application indicates that the Injured Worker has a limited
work history. Specifically, the Injured Worker previously
worked for 12 years as a housekeeping and laundry
supervisor. Additionally, the Injured Worker spent one year
working as a cashier and press catcher.
As a housekeeping and laundry supervisor, the Injured
Worker was responsible for supervising seven employees. The
Injured Worker utilized basic computer skills in order to
manage employees' schedules and maintain cleaning supply
inventory. The Injured Worker was responsible for ordering
supplies and preparing written reports concerning various
incidents at work. The Injured Worker was responsible for the
completion of jobs in a timely and satisfactory manner. The
Injured Worker's IC-2 application indicates that the Injured
Worker prepared all paperwork. Further, the Injured Worker
was responsible for overseeing and training seven employees.
The Injured Worker acquired the skills to perform this job
through on the job training.
Although the Injured Worker's job history is limited, the Staff
Hearing Officer finds that this job history demonstrates that
the Injured Worker has the ability to successfully acquire new
No. 16AP-676 14
job skills through on-the-job training. Further, this job history
demonstrates that the Injured Worker has the ability to
supervise co-workers, manage a job site, manage inventory,
utilize a computer, and prepare paperwork.
Therefore, the Staff Hearing Officer finds that the Injured
Worker's prior work history demonstrates that the Injured
Worker has the transferable skills, such as the ability to
prepare paperwork, manage co-workers, manage a job site,
use a computer, and learn from on-the-job training, necessary
to perform sustained remunerative employment.
Accordingly, the Staff Hearing Officer finds that the Injured
Worker's prior work history constitutes a positive vocational
asset which enhances the Injured Worker's ability to gain re-
employment.
Based upon these facts, the Staff Hearing Officer finds that the
Injured Worker has the vocational ability, intellect, and
literacy ability necessary to perform sustained remunerative
employment.
Further, when the Injured Worker's non-medical disability
factors are considered in conjunction with the impairments
arising out of the allowed conditions, the Staff Hearing Officer
finds that the Injured Worker retains the functional capacity
to perform sustained remunerative employment and is
therefore not permanently and totally disabled.
Accordingly, the Injured Worker's IC-2 Application for
Permanent Total Disability Compensation, filed 01/22/2016,
is denied.
This order is based upon the report of Dr. Wunder dated
04/07/2016, the report of Dr. Manges dated 03/15/2016, and
the non-medical disability factors.
{¶ 25} 12. On September 26, 2016, relator, Veronica E. Webber, filed this
mandamus action.
Conclusions of Law:
{¶ 26} Two issues are presented: (1) whether the reports of Dr. Manges provide
the commission with some evidence on which it relied in determining residual functional
No. 16AP-676 15
capacity, and (2) whether the commission abused its discretion in considering the non-
medical factors.
{¶ 27} The magistrate finds: (1) the reports of Dr. Manges provide the commission
with some evidence on which it relied in determining residual functional capacity, and (2)
the commission did not abuse its discretion in considering the non-medical factors.
{¶ 28} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
First Issue: Dr. Manges' Report
{¶ 29} As earlier noted, in completing the Occupational Activity Assessment,
Mental & Behavioral Examination, Dr. Manges indicates by his mark "[t]his Injured
Worker is capable of work with the limitation(s)/modification(s) noted below." In the
space provided, Dr. Manges wrote in his own hand:
Minimal contact with public, difficulties speaking with
supervisor, flexibility in time to allow for a slower pace and
allow for short, simple tasks.
{¶ 30} Relator's challenge to Dr. Manges' report is focused on his handwritten
statements in response to the pre-printed request that he provide "the
limitation(s)/modification(s)."
{¶ 31} In her brief, relator criticizes Dr. Manges' response to the form's query
regarding "limitation(s)/modification(s):"
On the Occupational Activity Assessment form he does try to
indicate limitations/modifications she is capable of working
within, but some such as "difficulties speaking with
supervisors" is not a limitation. For example he could have
said minimal contact with supervisors or no contact with
supervisors, or minimal superficial contact with supervisors.
In addition, qualified flexibility in time to allow for a slower
pace is not a specific limitation for example he could say no
production quotas and/or requirement of additional breaks.
Reading in to what Dr. Manges means by these would be pure
speculation. Due to the deficiencies in Dr. Manges' report, it
cannot constitute some evidence to be relied upon by the
Industrial Commission.
(Relator's brief at 11-12.)
No. 16AP-676 16
{¶ 32} The magistrate disagrees with relator's assertion that Dr. Manges' response
constitutes such deficiency that the report cannot provide some evidence supporting the
commission's determination of residual functional capacity. Ohio Adm.Code 4121-3-
34(B)(4).
{¶ 33} Contrary to relator's assertion, "difficulties speaking with supervisors" can
be viewed as a work limitation such that any employment she may obtain must allow for
her speaking difficulty.
{¶ 34} Contrary to relator's assertion, "flexibility in time to allow for a slower pace"
is indeed a limitation on relator's ability to work or to find employment. (Relator's brief
at 12.) Relator's stated preference for different language does not create a flaw in Dr.
Manges' report. Relator's assertion that Dr. Manges invites "pure speculation" is simply
incorrect. (Relator's brief at 12.)
{¶ 35} Moreover, the magistrate disagrees with relator's assertion that the SHO
"did not seem to understand Mr. Manges' Occupational Activity Assessment." (Relator's
brief at 12.)
{¶ 36} While the SHO did not repeat verbatim Dr. Manges' stated limitations, it
was not necessary that the SHO do so. That the SHO failed to repeat Dr. Manges'
statement "flexibility in time to allow for a slower pace" does not fatally flaw the SHO's
reliance on Dr. Manges' Occupational Activity Assessment.
{¶ 37} In her reply brief, relator relies on this court's decision in State ex rel.
Watkins v. St. Clare Retirement Comm., 10th Dist. No. 15AP-175, 2016-Ohio-3136.
Relator's reliance on Watkins is misplaced.
{¶ 38} Gwendolyn Watkins sustained a work-related injury in June 1993 while
employed as a nurse's aide for St. Clare Retirement Community. Her industrial claim is
allowed for multiple physical conditions and a "depressive mood disorder." Watkins at ¶
8.
{¶ 39} On February 28, 2014, Watkins filed an application for PTD compensation.
Id. at ¶ 9. On September 9, 2014, at the commission's request, Watkins was examined by
Dr. Manges who then issued a narrative report. Id. at ¶ 12.
No. 16AP-676 17
{¶ 40} In his report, Dr. Manges opined that Watkins "demonstrates a Class 3
moderate whole person psychological impairment of 35%." Id. Dr. Manges further
opined as to Watkins' percentage of impairments as they relate to activities of daily living,
social functioning, concentration and adaptation. Id.
{¶ 41} Dr. Manges also completed an Occupational Activity Assessment form for
Watkins. Id. at ¶ 13.
{¶ 42} On the form, Dr. Manges indicated that Watkins was capable of performing
work within the limitations/modifications noted in his attached report. Id. Apparently,
Dr. Manges did not identify specific limitations in the space provided on the Occupational
Activity Assessment form. Id.
{¶ 43} Following a November 12, 2014 hearing, an SHO issued an order that
denied Watkins' PTD application. In determining residual functional capacity, the SHO
relied on Dr. Manges' report regarding the psychological claim allowance.
{¶ 44} Watkins then filed in this court a complaint for a writ of mandamus. In
granting the writ, this court determined that Dr. Manges' report did not constitute some
evidence on which the commission could rely.
{¶ 45} In Watkins, this court explained:
The magistrate found that the commission abused its
discretion when it relied on the psychological report of Dr.
Manges because Dr. Manges indicated that relator was
capable of work with certain limitations but then failed to
identify those limitations in his report. Because Dr. Manges
did not identify the applicable limitations, his report did not
constitute some evidence upon which the commission could
rely. Therefore, the magistrate has recommended that we
grant a writ of mandamus and order the commission to vacate
its order that denied relator's application for PTD and, after
either receiving an addendum report from Dr. Manges or
having relator examined by another examiner, determine
whether or not she is entitled to said compensation.
Id. at ¶ 1.
{¶ 46} Clearly, the Watkins case does not support relator's request for a writ of
mandamus here.
No. 16AP-676 18
{¶ 47} Unlike Dr. Manges' Occupational Activity Assessment in the instant case,
Dr. Manges provided no other response in the Watkins case than a reference to his
narrative report. Thus, relator's reliance on the Watkins case is misplaced.
{¶ 48} Based on the above analysis, the magistrate concludes that the reports of
Dr. Manges provide the commission with some evidence to support its determination of
residual functional capacity.
Second Issue: Non-Medical Factors
{¶ 49} Ohio Adm.Code 4121-3-34 sets forth the commission's rules applicable to
all applications for PTD compensation.
{¶ 50} Ohio Adm.Code 4121-3-34(B) sets forth definitions.
{¶ 51} Ohio Adm.Code 4121-3-34(B)(3) sets forth "Vocational factors."
{¶ 52} 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.
{¶ 53} Ohio Adm.Code 4121-3-34(B)(3)(c) is captioned "Work experience."
Thereunder, the rule provides:
(i) "Unskilled work" is work that needs little or no judgment
to do simple duties that can be learned on the job in a short
period of time. The job may or may not require considerable
strength. Jobs are unskilled if the primary work duties are
handling, feeding, and off bearing (placing or removing
materials from machines which are automatic or operated by
others), or machine tending and a person can usually learn to
do the job in thirty days and little specific vocational
preparation and judgment are needed.
(ii) "Semi-skilled work" is work that needs some skills but
does not require doing the more complex work duties. Semi-
skilled jobs may require close attention to watching machine
processes or inspecting, testing, or otherwise looking for
irregularities or tending or guarding equipment, property,
material, or persons against loss, damage, or injury and other
types of activities which are similarly less complex than skilled
No. 16AP-676 19
work but more complex than unskilled work. A job may be
classified as semi-skilled where coordination and dexterity are
necessary, as when hands or feet must be moved quickly in a
repetitive task.
(iii) "Skilled work" is work that requires qualifications in
which a person uses judgment or involves dealing with people,
factors or figures or substantial ideas at a high level of
complexity. Skilled work may require qualifications in which
a person uses judgment to determine the machine and manual
operations to be performed in order to obtain the proper form,
quality, or quantity to be produced. Skilled work may require
laying out work, estimating quality, determine the suitability
and needed quantities of materials, making precise
measurements, reading blue prints or other specifications, or
making necessary computations or mechanical adjustments
or control or regulate the work.
{¶ 54} Ohio Adm.Code 4121-3-34(D) sets forth the commission's guidelines for
adjudication of PTD compensation.
{¶ 55} Ohio Adm.Code 4121-3-34(D)(2) provides:
(b) If, after hearing, the adjudicator finds that the injured
worker, based on the medical impairment resulting from the
allowed conditions is unable to return to the former position
of employment but may be able to engage in sustained
remunerative employment, the non-medical factors shall be
considered by the adjudicator.
The non-medical factors that are to be reviewed are the
injured worker's age, education, work record, and all other
factors, such as physical, psychological, and sociological, that
are contained within the record that might be important to the
determination as to whether the injured worker may return to
the job market by using past employment skills or those skills
which may be reasonably developed. (Vocational factors are
defined in paragraph (B) of this rule).
(c) If, after hearing and review of relevant vocational evidence
and non-medical disability factors, as described in paragraph
(D)(2)(b) of this rule the adjudicator finds that the injured
worker can return to sustained remunerative employment by
using past employment skills or those skills which may be
reasonably developed through retraining or through
No. 16AP-676 20
rehabilitation, the injured worker shall be found not to be
permanently and totally disabled.
{¶ 56} Citing Ohio Adm.Code 4121-3-34(B)(3)(c)(i), relator asserts that she is
limited by her industrial injury to unskilled work that, by definition, requires "little or no
judgment to do simple duties that can be learned on the job in a short period of time."
{¶ 57} Apparently, relator's assertion is drawn from Dr. Manges' Occupational
Activity Assessment on which he indicated that relator's allowed psychological conditions
restrict her to "short, simple tasks."
{¶ 58} Relator asserts that the SHO abused his discretion in determining that
individuals of relator's age have the opportunity, through vocational training or on-the-
job training, to acquire new job skills which may enhance their ability to gain re-
employment. According to relator, because she is limited by her psychological injury to
unskilled work, "her age and ability to acquire new skills is not relevant." (Relator's brief
at 16.) The magistrate disagrees.
{¶ 59} As the commission here points out, even if relator's residual functional
capacity may limit her to unskilled labor, age is indeed relevant to the commission's
analysis of whether relator can learn to do an unskilled job. As the commission further
points out, "[e]ven in an unskilled position, an individual would have the need to be able
to learn new job duties." (Commission's brief at 14.)
{¶ 60} Relator further asserts that the SHO abused his discretion in determining
that her high school education "constitutes a positive vocational asset which enhances
[relator's] ability to gain re-employment." While the SHO did point out that a high school
diploma, by definition, qualifies the injured worker for semi-skilled to skilled
employment, this need not be interpreted as a commission finding that relator is currently
qualified for semi-skilled to skilled employment. Even if relator is limited to unskilled
work, her high school education gives her some advantage over a similarly situated
applicant who lacks a high school education. Therefore, relator is incorrect in asserting
that her high school education is irrelevant.
{¶ 61} Relator further asserts that the SHO abused his discretion in determining
that her work history gives her "the ability to successfully acquire new job skills through
on-the-job training." The SHO pointed to relator's prior work supervising seven
No. 16AP-676 21
employees and her utilization of basic computer skills in order to manage the employees'
schedules and maintain cleaning supply inventory.
{¶ 62} Even if relator is currently limited to unskilled work, the commission's
discussion of her work history is not irrelevant, as relator asserts. Even if relator is
currently limited to unskilled work, her work history can be viewed as a "positive
vocational asset."
{¶ 63} In short, based on the above analysis, the magistrate finds that the
commission did not abuse its discretion in its consideration of the non-medical factors.
{¶ 64} Accordingly, for all the above reasons, 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).