State ex rel. Young v. Butler Cty. Personnel Office

[Cite as State ex rel. Young v. Butler Cty. Personnel Office, 2016-Ohio-8341.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Wanda M. Young, :
Relator, :
v. : No. 15AP-1035
Butler County Personnel Office : (REGULAR CALENDAR)
and Industrial Commission of Ohio,
:
Respondents.
:
D E C I S I O N
Rendered on December 22, 2016
On brief: Lisa M. Clark, and Mark B. Weisser, for relator.
On brief: McCracken & Martin LLC, and Kyle D. Martin,
for respondent Butler County Personnel Office.
On brief: Michael DeWine, Attorney General, and
Amanda B. Brown, for respondent Industrial Commission of
Ohio.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
DORRIAN, P.J.
{¶ 1} Relator, Wanda M. Young, filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its September 9, 20151 order which denied her application for
permanent total disability ("PTD") compensation after finding that relator had voluntarily
1 On September 1, 2015, a staff hearing officer held a hearing on relator's request for PTD compensation. On
September 2, 2015, the order denying the request was typed, and on September 9, 2015 the order was
mailed. We will refer to the order pursuant to the date it was mailed, September 9, 2015.
No. 15AP-1035 2
abandoned the workforce, and ordering the commission to reconsider her application and
grant her PTD compensation.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
this court deny relator's request for a writ of mandamus.
{¶ 3} Relator has filed the following objection to the magistrate's decision:
The Staff Hearing Officer's decision concluding the Claimant
voluntarily abandoned the workforce, which was never
raised by the Employer at the PTD hearing, constitutes an
abuse of discretion.
{¶ 4} The argument raised in the objection is essentially the same as that raised to
and addressed by the magistrate.
{¶ 5} The magistrate rejected this argument. The magistrate observed the
relevant inquiry in the determination of PTD is the claimant's ability to do any sustained
remunerative employment. Further, the magistrate cited Ohio Adm.Code 4121-3-
34(D)(1)(d) which states:
If, after hearing, the adjudicator finds that the injured
worker voluntarily removed himself or herself from the work
force, the injured worker shall be found not to be
permanently and totally disabled. If evidence of voluntary
removal or retirement is brought into issue, the adjudicator
shall consider evidence that is submitted of the injured
worker's medical condition at or near the time of
removal/retirement.
{¶ 6} The magistrate noted the regulation requires that "if evidence of voluntary
removal or retirement is made an issue, the hearing officer must consider evidence of the
claimant's medical condition at or near the time of removal/retirement." (Appended
Magistrate's Decision at ¶ 44.) This is so a determination can be made if the claimant is
not medically capable of participating in vocational rehabilitation services or working, and
therefore abandonment of the workforce is not voluntary.
{¶ 7} The magistrate also rejected the argument that voluntary abandonment
should not have been found because the evidence establishes that any further attempts at
vocational rehabilitation would have been in vain. The magistrate noted that relator did
complete vocational rehabilitation in 2012; and in July 2013, a staff hearing officer
No. 15AP-1035 3
("SHO") determined she was capable of sedentary work activity and, thus, some sustained
remunerative employment. Nevertheless, despite the vocational rehabilitation specialist's
opinion that relator was capable of pursuing an independent job search and engaging in
sustained remunerative employment, relator did not do so.
{¶ 8} Finally, the magistrate rejected the argument that relator was incapable of
working pursuant to Dr. Tricia M. Giessler's opinion and, thus, incapable of looking for
work. Again, the magistrate noted the July 2013 SHO determination that, even
considering the allowed physical and psychological conditions, relator was capable of
performing sustained remunerative employment. The magistrate noted that Dr.
Giessler's opinion was not obtained until December 2014, and that relator made no effort
to secure employment between the SHO's July 2013 determination and Dr. Giessler's
December 2014 opinion. In her brief, relator also refers to the opinion of Dr. Kenneth J.
Manges. Dr. Manges' report was obtained even later than Dr. Giessler's opinion, in June
2015.
{¶ 9} We have carefully considered relator's objection and arguments and
reviewed the joint stipulation of evidence as well. For the reasons outlined in the
magistrate's decision, we disagree with relator that the commission abused its discretion
in concluding that relator voluntarily abandoned the workforce and, therefore, is not
eligible for PTD compensation.
{¶ 10} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objection, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
relator's objection to the magistrate's decision and adopt the magistrate's decision as our
own, including the findings of fact and conclusions of law contained therein. Accordingly,
the requested writ of mandamus is hereby denied.
Objection overruled;
writ of mandamus denied.
TYACK and LUPER SCHUSTER, JJ., concur.
No. 15AP-1035 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Wanda M. Young, :
Relator, :
v. : No. 15AP-1035
Butler County Personnel Office : (REGULAR CALENDAR)
and Industrial Commission of Ohio,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on June 15, 2016
Lisa M. Clark, and Mark B. Weisser, for relator.
McCracken & Martin, LLC, and Kyle D. Martin, for
respondent Butler County Personnel Office.
Michael DeWine, Attorney General, and Amanda B. Brown,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 11} Relator, Wanda M. Young, 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 denied her application for permanent total
disability ("PTD") compensation after finding that she had voluntarily removed herself from
the workforce, and ordering the commission to reconsider her application and grant it.
No. 15AP-1035 5
Findings of Fact:
{¶ 12} 1. Relator has four industrial claims arising out of her employment as a
nursing assistant at the Butler County Care Facility. The commission lists the employer as
the Butler County Personnel Office.
{¶ 13} 2. On June 24, 2005, relator sustained an industrial injury (claim No. 05-
369290), which is allowed for:
Sprain left elbow; left lateral epicondylitis; tendinopathy of
the brachial tendon left elbow; partial tear of brachial tendon
left.
{¶ 14} 3. On October 29, 2006, relator sustained an industrial injury (claim No.
06-394743), which is allowed for:
Right shoulder sprain; impingement syndrome right
shoulder; rotator cuff tear right shoulder; synovitis right
shoulder.
{¶ 15} 4. On May 2, 2007, relator sustained an industrial injury (claim No. 07-
825779), which is allowed for:
Sprain lumbosacral; substantial aggravation L4-5 and L5-S1
spondylosis; bilateral posterior superior iliac spine
tendonitis.
{¶ 16} 5. On August 26, 2008, relator sustained an industrial injury (claim No. 08-
852242), which is allowed for:
Sprain of neck; sprain of right knee and leg; substantial
aggravation pre-existing right knee chondromalacia; major
depressive disorder.
{¶ 17} 6. The record contains a five-page document dated January 18, 2012
captioned "Ohio Valley Goodwill Industries Work Adjustment Services Discharge
Summary." The Goodwill summary indicates that, during November and December 2011,
relator participated in a four-week transition program designed to assist her to find new
employment.
{¶ 18} The Goodwill summary assesses relator's "strengths" and "barriers" to
employment:
No. 15AP-1035 6
STRENGTHS:
 Provided documentation necessary to complete the
Employment Eligibility Verification (I-9) form
required of all newly hired employees
 Has valid driver's license and own[s] vehicle
 Exhibited awareness of employers' expectations
regarding "soft" skills
 Capable of following verbal instructions and
demonstrations
 Capable of learning new procedures/work tasks
 Demonstrated ability to focus on work tasks
 Courteous, polite
 Exhibited sufficient stamina for a four-hour workday
on sedentary jobs
BARRIERS TO EMPLOYMENT:
 No recent work history
 Lacks high school education/GED
 Physical limitations including no lifting over 20 lbs
and only occasional lifting of 20 lbs or less; no
squatting/kneeling; bending, twisting, reaching below
knee, pushing/pulling, standing/walking limited to
occasionally; sitting and lifting above the shoulders
limited to frequently
The Goodwill summary concludes:
DESIRED OUTCOMES AND EXPECTATIONS
ESTABLISHED/ACHIEVED:
Wanda was referred for Work Adjustment services to assess
her ability to transition to different types of work while
assessing her work behaviors, assets and deficits for
employment.
Wanda demonstrated the ability to easily transition to
different types of work and exhibited the work behaviors
expected of a competitive employee. She was attentive when
directions were provided, retained instructions and was cap-
able of working independently. Wanda's physical restrictions
and limited stamina for more than a four-hour day in a
sedentary position would appear to be insurmountable
barriers to obtaining employment in a retail position, as she
desired.
No. 15AP-1035 7
Without a GED, Wanda's other vocational interest, working
with computers, would be unlikely. At this time, her
academic skills, concentration and attention to detail would
indicate that she would struggle with obtaining her GED and
computer training.
REASONS FOR DISCHARGE:
Wanda completed her four-week adjustment program.
{¶ 19} 7. The record contains a one-page document captioned "Vocational
Rehabilitation Closure Report," which is a form (RH-21) of the Ohio Bureau of Workers'
Compensation ("BWC"). The document was approved by a vocational rehabilitation case
manager on May 30, 2012. The document states:
Ms. Young's case was assigned to this case manager on
10/20/11. Barriers identified for Ms. Young included,
sedentary work restrictions and no GED. A four week work
adjustment program was recommended and Ms. Young
demonstrated that she could tolerate a different work
environment. Based on this JSST and job search services
were recommended. Ms. Young also had a GED assessment
and studied for the test on her own. Her academic levels
were so low that it was impossible to assess how long it
would take her to be able to reach a level when she could take
the GED so this was not a focus of her plan services. Ms.
Young completed JSST and 20 weeks of job search services.
Ms. Young's effort was excellent, she was extremely limited
in her work opportunities due to her education and
restrictions. Case closure was recommended for completion
of services without finding employment.
{¶ 20} 8. On January 3, 2013, relator filed an application for PTD compensation
on a form provided by the commission.
{¶ 21} 9. The PTD application form asks the applicant for information regarding
her education. On the form, relator indicated that the eighth grade was the highest grade
of school completed and this occurred in 1969. She did not complete her GED nor did she
attend a trade or vocational school, nor other specialized training. She noted further that
she could read, write, and perform basic math, but not well.
{¶ 22} 10. Following a July 10, 2013 hearing, a staff hearing officer ("SHO") issued
an order denying her PTD application. The SHO relied on medical evidence to find that
No. 15AP-1035 8
relator could perform sedentary work with no overhead work with her right upper
extremity. Further, the SHO relied on medical evidence that relator's allowed
psychological condition did not preclude relatively low stress employment. The SHO's
order explains:
The Staff Hearing Officer finds that the Injured Worker is 58
years of age and has an 8th grade education. The Staff
Hearing Officer notes from the Injured Worker's permanent
total application that she is able to read, write and do basic
math, but not well. The Staff Hearing Officer finds that the
Injured Worker has a varied work history; performing jobs
as a nurse's assistant, food service worker and packer.
***
The Staff Hearing Officer finds that the Injured Worker has
completed 30 weeks of job search services but was unable to
secure alternative employment as a result of the vocational
rehabilitation services. The Staff Hearing Officer finds that
the vocational rehabilitation closure report of 05/30/2012
indicated that Ms. Young demonstrated from a work
adjustment program that she could tolerate a different work
environment. The vocational rehabilitation closure report
indicated that Ms. Young's effort was excellent but she was
limited in her work opportunities due to her 8th grade
education and restrictions to sedentary employment. The
closure report indicated that the case closure was
recommended because of completion of services without
finding employment. The vocational rehabilitation closure
report indicates with the Injured Worker's participation that
she has the aptitude to learn and the ability to be re-trained
but the employment prospects currently existing in the
economy did not result in a placement of a job for the
Injured Worker. The Staff Hearing Officer finds that the
Ohio Valley Goodwill Industries Work Adjustment Services
Discharge Summary dated 01/18/2012 indicated that the
Injured Worker has various strengths when it comes to
employment. The discharge summary indicated that the
Injured Worker has a valid drivers license and owns a
vehicle, exhibited awareness of employer's expectations
regarding skills, capable of following verbal instructions and
demonstration, capable of learning new procedures/work
tasks, demonstrated ability to focus on work tasks and is
courteous and polite. The Staff Hearing Officer finds that
these vocational strengths are beneficial to an Injured
Worker in securing future employment.
No. 15AP-1035 9
The Staff Hearing Officer finds that the Injured Worker's 8th
grade education without a GED certificate is a negative
vocational factor. The Staff Hearing Officer finds that the
Injured Worker's education would negatively impact her in
securing future employment. However the Staff Hearing
Officer finds that the Injured Worker's age of 58, her past
work experience as a nursing assistant, food service worker
and packer shows that the Injured Worker is capable of
learning new procedures and new tasks in different work
environments. The Staff Hearing Officer notes that the
Injured Worker's employment as a state tested nursing
assistant indicates that the Injured Worker had the
capability to interact with the public and demonstrate the
ability to read/write/do basic math in performing these
tasks. The Staff Hearing Officer finds that an Injured
Worker's efforts in education re-training will be scrutinized
by the Industrial Commission. The Staff Hearing Officer
finds that the Injured Worker is 58 years of age with an 8th
grade education and has the capability to pursue a GED
certificate and further training to enhance her re-
employment efforts. The Staff Hearing Officer finds that an
Injured Worker is expected to engage in return to work
efforts and efforts to improve re-employment potential. This
is because permanent total compensation is compensation of
the last resort to be awarded only when an Injured Worker's
efforts at re-employment have failed. The [sic] State ex rel.
Wilson v. Industrial Commission (1997) 80 Ohio St. 3d 250,
253.
Based on a careful consideration of the above, as well as the
evidence in file and at the hearing, the Staff Hearing Officer
concludes that the Injured Worker is capable of performing
sustained remunerative employment consistent with
sedentary work. Therefore the Injured Worker is not
permanently totally disabled.
{¶ 23} 11. On January 2, 2014, relator, Wanda Young, filed a mandamus action in
this court. State ex rel. Young v. Indus. Comm., 10th Dist. No. 14AP-3, 2014-Ohio-5331.
In that case, three issues were presented: (1) whether the commission abused its
discretion in failing to identify skills that were transferrable to the sedentary employment
that relator could perform; (2) whether the commission abused its discretion in
determining that relator was capable of learning new procedures and work tasks; and (3)
No. 15AP-1035 10
whether the commission abused its discretion in determining that relator had the capacity
to successfully pursue a GED certificate.
{¶ 24} The magistrate found: (1) the commission did not abuse its discretion by
not identifying skills that were transferrable to the sedentary employment that relator
could perform; (2) the commission did not abuse its discretion in determining that relator
was capable of learning new procedures and work tasks; and (3) the commission did not
abuse its discretion in determining that relator had the capacity to successfully pursue a
GED certificate.
{¶ 25} No objections were filed and this court adopted the magistrate's decision as
its own.
{¶ 26} 12. After the magistrate's decision was released and before this court
adopted that decision, relator was again referred for vocational rehabilitation.
{¶ 27} 13. In a letter dated November 19, 2014, relator was informed that she was
not feasible for vocational rehabilitation services for the following reasons:
[Injured Worker] has been given the tools and taught the
skills necessary for an independent Job Search. There are no
other services to offer based on prior vocational
rehabilitation test results and services previously rendered.
The certified vocational evaluation in 2012 finds cognitive
deficits that do not warrant short/long term training. The
injured worker was provided thirty weeks of job search with
the assistance of job placement and development
professionals. No new and changed circumstances within the
injured workers' [sic] restrictions since 2012 nor increase in
educational level are founded upon review of the claim file.
{¶ 28} 14. Relator had the opportunity to appeal this decision; however, she chose
not to do so.
{¶ 29} 15. In a letter dated November 13, 2014, Dr. Paley noted that a recent MRI
of relator's right shoulder demonstrated a probable re-tear and damage to her rotator
cuff. He noted further that she continued to have persistent symptoms associated with
her right knee and low back. Dr. Paley indicated that relator would require considerable
supportive care along with ongoing medication, including low-dose narcotic medication.
Dr. Paley opined that relator was permanently and totally disabled, stating:
It is my opinion that Ms. Young is going to require
considerable supportive care along with ongoing medication,
No. 15AP-1035 11
including low-dose narcotic medication which will leave her,
in my opinion, a less than desirable candidate for return to
gainful employment.
More likely than not, Ms. Young will require multiple lost
work days every month. She will require fairly restricted
work activity that will require frequent breaks.
Given all of the above, combined with the fact that she is
going to require fairly restricted and limited duty, I believe
that Ms. Young not only is incapable of significant gainful
employment, but she is going to have a difficult time holding
or maintaining any type of reasonable employment on a
regular basis.
While I am not usually a fan of permanent total disability
benefits, in this particular case, given the nature of these
injuries and the required treatment, including the use of
narcotic medications, I believe that fifty-nine-year-old Ms.
Young is going to have a very difficult time returning to
gainful employment. In all honesty, this is the type of patient
that potential employers shy away from as the restrictions
are simply too burdensome upon the employers.
After careful consideration of the claim allowances and
related residual disability, it is my professional opinion,
rendered within the realm of reasonable medical
probabilities, that Ms. Young is permanently and totally
disabled.
{¶ 30} 16. Relator filed her second application for PTD compensation on
January 6, 2015. Relator's second application was supported by the December 19, 2014
report of Tricia M. Giessler, Psy.D., her treating clinical psychologist. Dr. Giessler opined
that relator's major depressive disorder, along with her allowed physical conditions,
rendered her permanently and totally disabled.
{¶ 31} 17. An independent psychological report dated February 25, 2015 was
completed by Donald J. Tosi, Ph.D. In that report, Dr. Tosi listed relator's allowed
conditions and identified the medical records which he reviewed. Dr. Tosi found mild
impairments with regard to activities of daily living, social interactions, adaptation, as
well as concentration, persistence, and pace. Dr. Tosi administered the Million Clinical
Multi Axial Inventory-III ("MCMI-III") and noted the following relevant findings:
No. 15AP-1035 12
Testing had such a severe "fake bad" exaggeration of
pathology that test results are probably grossly distorted and
invalid. If not due to numbering or to reading problems, this
may represent either a cry for help or conscious malingering.
Ms. Young is not reflective or thoughtful which can limit
insight and judgment. She does not try to understand the
world in cognitive, rational ways.
Concentration difficulties are probable with Ms. Young being
distractible, preoccupied, and inattentive. This may cause
Ms. Young to miss important environmental cues leading to
decreased judgment and coping.
Due to her cognitive style, Ms. Young may have severe
difficulty learning from her experiences and may repeatedly
make the same mistakes.
Test scores may indicate a Major Depression or may
represent a severe Adjustment Disorder.
Impulse control is poor with Ms. Young impulsively acting
out without consideration of alternatives. She acts directly on
feelings to gain immediate gratification with little
forethought.
Ms. Young's reported energy level is within the Normal
range.
Testing indicates significant Borderline Personality features.
Testing indicates significant Schizoid, Dependent, and
Passive-Aggressive features that are likely to affect daily
functioning.
Ms. Young denies most of her emotions, especially anger,
hurt, and resentment. Even so, Ms. Young tends to be
irritable and malcontent as anxiety, negativity, and anger
exist since Ms. Young believes that she "got a raw deal from
life." Underlying worry and anger can result in mood swings
and be expressed through subtle attacks, blame, insults, and
complaints.
{¶ 32} Dr. Tosi opined that, from a psychological standpoint, relator was capable of
returning to remunerative employment and would function best in low-moderate work
stress and tasks that would be simple to moderate in complexity.
No. 15AP-1035 13
{¶ 33} 18. The record also contains the June 6, 2015 report of Kenneth J. Manges,
Ph.D. After identifying the allowed conditions in relator's claims and identifying the
medical records which he reviewed, Dr. Manges determined that relator had a Class 3
moderate whole person psychological impairment of 30 percent. Dr. Manges completed
an occupational activity assessment indicating that, in his opinion, relator was incapable
of work.
{¶ 34} 19. Stephen S. Wunder, M.D., examined relator concerning her allowed
physical conditions. In his March 9, 2015 report, Dr. Wunder identified the allowed
conditions in relator's claims, identified the medical records which he reviewed, and
provided his physical findings on examination. Concerning her shoulder, Dr. Wunder
noted that relator informed him that updated imaging studies suggested a recurrent
rotator cuff tear and consideration of a shoulder replacement. In that regard, Dr. Wunder
stated:
However, the MRI that was forwarded to me dated
October 26, 2014, showed a chronic tear of the anterior
labrum and did not show any evidence of a recurrent rotator
cuff tear. Her subjective complaints are not supported by
objective findings, and there are many nonorganic findings
present.
{¶ 35} Dr. Wunder opined that relator's allowed physical conditions had reached
maximum medical improvement and that relator would be capable of performing
sustained remunerative employment as follows:
Considering only the allowed conditions in the listed claims,
the claimant would be capable of returning to sustained
remunerative employment. She would be capable of at least a
full range of sedentary work, which would include lifting up
to 10 pounds occasionally and lesser amounts of weight more
frequently. She would have to do sit-down type of work. I do
not believe she could work from heights and with the right
knee I do not think she could crawl or kneel.
{¶ 36} 20. The commission referred relator to Matthew F. Burton, M.D. In his
May 12, 2015 report, Dr. Burton identified the allowed conditions in relator's claims and
provided his physical findings on examination. Ultimately, Dr. Burton concluded that
relator had an 18 percent whole person impairment and that she would be capable of
No. 15AP-1035 14
performing sedentary work activity despite her shoulder surgery and functional
limitations.
{¶ 37} 21. Relator's application was heard before an SHO on September 1, 2015.
The SHO denied relator's application finding that she had voluntarily removed herself
from the workplace. The SHO explained:
By way of history, the Injured Worker's prior Application for
Permanent Total Disability Compensation filed 01/03/2013,
was denied by Staff Hearing Officer order dated 07/10/2013.
This denial was later affirmed by a decision from the Court of
Appeals of Ohio, 10th Appellate District, in a decision dated
12/02/2014.
One month later, on 01/06/2015, the Injured Worker filed a
virtually identical Application for Permanent Total Disability
Compensation.
When the Injured Worker's prior Application for Permanent
Total Disability Compensation was denied by Staff Hearing
Officer order dated 07/10/2013, the Staff Hearing Officer
considered all medical evidence on file at that time, in
conjunction with the Injured Worker's non-medical
disability factors, and concluded that the Injured Worker
was capable of engaging in sustained remunerative
employment. Further, this finding was affirmed by the 10th
District Court of Appeals.
Despite the finding that the Injured Worker was capable of
engaging in sustained remunerative employment, the
Injured Worker has not returned to work, engaged in a job
search, or made any other attempt to return to the workforce
since 07/10/2013.
At hearing, the Injured Worker argued that she attempted to
participate in vocational rehabilitation services in November
of 2014, but her application was denied. The Injured Worker
specifically argued that the fact that she applied for
vocational rehabilitation constitutes her best and most
sincere effort to seek employment and return to the
workforce.
The Staff Hearing Officer rejects this argument.
Significantly, the Vocational Rehabilitation Closure Report
issued by Mr. Mark Pauley, Vocational Rehabilitation
No. 15AP-1035 15
Specialist, dated 11/19/2014, indicates that the Injured
Worker is not a viable candidate to participate in vocational
rehabilitation for the reason that the Injured Worker has
already completed the vocational rehabilitation process in
2012. Mr. Pauley indicates that the Injured Worker is not a
good candidate to participate in vocational rehabilitation in
2014 because there are no additional skills or services
available through vocational rehabilitation. Mr. Pauley
indicates that the Injured Worker has been given the tools
and taught the necessary skills to conduct an independent
job search.
Despite Mr. Pauley's finding that the Injured Worker has the
skills necessary to conduct an independent job search, the
Injured Worker has opted not to do so.
Further, the Staff Hearing Officer finds that the Injured
Worker's application to participate in vocational
rehabilitation in 2014 does not constitute the Injured
Worker's best and most sincere attempt to gain acceptance
into vocational rehabilitation. Expressly, the Managed Care
Organization denial dated 11/19/2014 could have been
appealed to the Industrial Commission for adjudication. The
Injured Worker opted not to pursue her application any
further and no appeal was ever taken.
Therefore, the Staff Hearing Officer finds that the Injured
Worker voluntarily abandoned the workforce on 07/10/2013
when a Staff Hearing Officer made a specific finding that the
Injured Worker was capable of engaging in sustained
remunerative employment and the Injured Worker opted not
to make any attempt to do so.
Therefore, the Staff Hearing Officer finds the Injured Worker
ineligible to receive permanent total disability compensation
pursuant to Ohio Adm.Code 4121-3-34(D)(1)(d).
{¶ 38} 22. Relator's request for reconsideration was denied by order of the
commission mailed October 22, 2015.
{¶ 39} 23. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 40} Relator's sole argument is that the commission abused its discretion by
concluding that she had voluntarily abandoned the workforce, an issue which was never
No. 15AP-1035 16
raised by the employer at the hearing. For the reasons that follow, the magistrate rejects
relator's argument.
{¶ 41} 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).
{¶ 42} 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).
{¶ 43} Ohio Adm.Code 4121-3-34(D) sets forth the commission's guidelines for the
adjudication of PTD applications. Thereunder, Ohio Adm.Code 4121-3-34(D)(1)(d)
provides:
If, after hearing, the adjudicator finds that the injured
worker voluntarily removed himself or herself from the work
force, the injured worker shall be found not to be
permanently and totally disabled. If evidence of voluntary
removal or retirement is brought into issue, the adjudicator
shall consider evidence that is submitted of the injured
worker's medical condition at or near the time of
removal/retirement.
{¶ 44} Relator contends that pursuant to Ohio Adm.Code 4121-3-34(D)(1)(d), the
commission may only consider whether a claimant voluntarily removed themself from the
workforce if the issue is raised. However, that is not what the regulation provides.
Instead, the regulation requires that, if evidence of voluntary removal or retirement is
made an issue, the hearing officer must consider evidence of the claimant's medical
No. 15AP-1035 17
condition at or near the time of removal/retirement. This is always a factor when the
commission considers whether or not a claimant has voluntarily removed themselves
from the workforce because if a claimant is not medically capable of participating in
vocational rehabilitation services or working, then the claimant cannot voluntarily
abandon the workforce.
{¶ 45} Relator also contends that the evidence establishes that any further
attempts at vocational rehabilitation would have been in vain. As such, relator asserts the
SHO should not have found voluntary abandonment. However, the magistrate disagrees.
As noted in the findings of fact, relator did complete vocational rehabilitation in 2012,
prior to the filing of her first application for PTD compensation. In the commission's
order denying her first application for PTD compensation, the SHO recognized that
relator had not been able to secure employment while participating in vocational
rehabilitation services. However, in finding that she was able to perform sedentary work
activity with limitations regarding her right shoulder, the SHO determined that she was
capable of some sustained remunerative employment.
{¶ 46} After her first application was denied, relator was referred for further
vocational rehabilitation services. However, based on a finding that she had already been
given the tools and taught the skills necessary for an independent job search and because
there were no new and changed circumstances in her restrictions since 2012, she was
deemed not feasible for further vocational rehabilitation participation. Despite the
finding by the commission in denying her first application for PTD compensation and the
vocational rehabilitation specialist's opinion that she was capable of pursuing an
independent job search and engaging in sustained remunerative employment, relator
acknowledges that she did not do so. Because the commission found, in 2013, that she
was capable of securing employment, her failure to do so can be considered by the
commission as evidence that she chose not to. The voluntary nature of abandonment of
employment is a factual question for the commission to determine on a case-by-case
basis. See State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 Ohio St. 3d
381 (1989) and State ex rel. Floyd v. Formica Corp., 140 Ohio St. 3d 260, 2014-Ohio-
3614.
No. 15AP-1035 18
{¶ 47} Relator also argues that, from a psychological standpoint, she was incapable
of working and, as such, is incapable of looking for work. Relator's argument ignores the
fact that, in July 2013, the commission determined that both the allowed physical and
psychological conditions permitted her to perform sustained remunerative employment.
Despite this finding, relator acknowledges she did not look for work. It was not until
December 2014 that Dr. Giessler opined that her psychological condition precluded
employment. Relator made no effort to secure employment in those 18 months. Had she
sought employment, she may or may not have been successful. Given her failure to even
try to find work, the magistrate finds that the commission did not abuse its discretion in
finding that she voluntarily abandoned the workforce.
{¶ 48} Finding that the commission did not abuse its discretion and finding that
relator's failure to make a job search or secure employment after her first application for
PTD compensation was denied constitutes some evidence upon which the commission
could rely to find that she had voluntarily abandoned the workforce, and the magistrate
finds that the commission did not abuse its discretion in denying her application for PTD
compensation. As such, this court should deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA
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).