State ex rel. Bonnlander v. Hamon

[Cite as State ex rel. Bonnlander v. Hamon, 2015-Ohio-4038.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Timothy Bonnlander, :
Relator, :
v. : No. 14AP-855
Robert and Marvin Hamon : (REGULAR CALENDAR)
and Industrial Commission of Ohio,
:
Respondents.
:
D E C I S I O N
Rendered on September 30, 2015
Lisa M. Clark, for relator.
Michael DeWine, Attorney General, and Eric J. Tarbox, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE’S DECISION
SADLER, J.
{¶ 1} Relator, Timothy Bonnlander, commenced this original action requesting a
writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"),
to vacate its order denying him permanent total disability ("PTD") compensation and to
enter an order awarding him the 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 the appended decision,
including findings of fact and conclusions of law, and recommended that this court deny
the requested writ of mandamus. Specifically, the magistrate determined that the
No. 14AP-855 2
commission could rely on the reports of Debjani Sinha, Ph.D., and that those reports did
provide the commission with some evidence supporting its determination that relator is
capable of sustained remunerative employment. Therefore, the magistrate concluded that
the commission did not abuse its discretion in determining that relator is not
permanently and totally disabled.
{¶ 3} Relator filed an objection to the magistrate's decision, which we have
paraphrased and grouped as follows:1
1. The magistrate erred in determining that Dr. Sinha's report
supports a finding that relator is capable of four hours of
sustained remunerative employment in the context of PTD
compensation under State ex rel Sheller-Chiles v. Indus.
Comm., 10th Dist. No. 13AP-245, 2014-Ohio-313.
2. The magistrate erred in finding that the commission
accepted the restrictions of multiple, generous breaks and in
failing to fully consider the impact of generous, multiple
breaks on relator's ability to engage in sustained remunerative
employment.
3. The magistrate erred in determining Dr. Sinha's report
supports the employment determination, as it is internally
inconsistent and therefore equivocal.
4. The magistrate erred in making its own finding that relator
is capable of more than four hours of work, in contrast to the
commission's findings.
{¶ 4} Relator's first and second objections contain, in essence, the same
arguments made to and addressed by the magistrate, i.e., that Dr. Sinha's report did not
support a finding that relator is capable of four hours of sustained remunerative
employment to meet the threshold set in State ex rel. Sheller-Chiles v. Indus. Comm.,
10th Dist. No. 13AP-245, 2014-Ohio-313, due to Dr. Sinha's statement that "[relator] can
at a minimum work part-time, up to 4 hours a day, with generous breaks built in," and
that the commission failed to accept or properly apply Dr. Sinha's restriction of multiple,
generous breaks. (Sinha Report, 11.) For the reasons set forth in the magistrate's
1 Relator does not delineate objections. In the interest of justice, we gleaned these objections from the
"Objection and Memorandum in Support" section of relator's submission to this court. (Objection of Relator
Timothy Bonnlander to Magistrate's June 22, 2015 Order, 3.)
No. 14AP-855 3
decision, however, we overrule relator's objections. State ex rel. Schottenstein Stores
Corp. v. Indus. Comm., 10th Dist. No. 07AP-1066, 2009-Ohio-2142, ¶ 4.
{¶ 5} Relator's third objection contends that the magistrate failed to address his
argument about the internal inconsistency of Dr. Sinha's report even though relator raised
this argument in his brief. "Equivocal or internally inconsistent medical reports do not
constitute some evidence upon which the commission can rely." State ex rel. Smith v.
Thomas/Sysco Food Serv., 10th Dist. No. 13AP-37, 2014-Ohio-1641, ¶ 10.
{¶ 6} Relator points to Dr. Sinha's statement that "[v]ariable alertness was noted
during the interview, but these extended for short periods of time, and this will limit his
ability to engage in any sustained, competitive work" as internally inconsistent with her
aforementioned statement that "[relator] can at a minimum work part-time, up to 4 hours
a day, with generous breaks built in." (Sinha Report, 10, 11.) In finding that Dr. Sinha's
reports constituted "some evidence" supporting the commission's determination, the
magistrate implicitly rejected relator's argument. (Magistrate's Decision, ¶ 45.) Our
independent reading of the report shows that Dr. Sinha's first statement, regarding
relator's viable alertness, informs Dr. Sinha's ultimate conclusions about relator's
restrictions and length of work capability stated in the second statement. Therefore, Dr.
Sinha's report is not internally inconsistent or equivocal and, as such, relator's third
objection is overruled.
{¶ 7} Regarding relator's fourth objection, the magistrate did not impermissibly
supplement the commission's order with a conflicting finding of fact. Rather, the
magistrate reviewed the facts and determined that the commission's factual findings were
consistent with the evidence presented. What relator submits is an impermissible
addition of content to the commission's order, we find to be part of the magistrate's
explanation of why the commission's determination that relator was capable of sustained
remunerative employment was supported by some evidence. As such, relator's fourth
objection is overruled.
{¶ 8} Following review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the facts and applied the appropriate law. Therefore, we overrule relator's
objections to the magistrate's decision and adopt the magistrate's decision as our own,
No. 14AP-855 4
including the findings of fact and conclusions of law therein. The requested writ of
mandamus is denied.
Objections overruled;
writ of mandamus denied.
BROWN, P.J., concurs.
BRUNNER, J., dissents.
BRUNNER, J., dissenting.
{¶ 9} I respectfully dissent from the decision of the majority. I would sustain
relator's second objection and grant the writ of mandamus because the magistrate's
characterization of Dr. Sinha's, the examining doctor, opinion as to the amount of work
per day that relator can do, has been misinterpreted as a matter of law in the magistrate's
decision. Dr. Sinha stated in her report that "[relator] can at a minimum work part-time,
up to 4 hours a day, with generous breaks built in." (Appended Magistrate's Decision, at
¶ 20.) The magistrate stated in his decision that:
Dr. Sinha found that relator can "at a minimum" work "up to"
a four-hour day. Use of the term "at a minimum" infers that
relator can work more than "up to" the four-hour day that Dr.
Sinha opines he can do.
(Appended Magistrate's Decision, at ¶ 49.) "Sustained remunerative employment" as set
forth in State ex rel. Sheller-Chiles v. Indus. Comm., 10th Dist. No. 13AP-245, 2014-Ohio-
313, ¶ 5, means a work capacity of "four or more hours per day." I would find as a matter
of law that "up to 4 hours a day, with generous breaks built in" is not "sustained
remunerative employment" under the Sheller-Chiles standard.
{¶ 10} Looking to our decision in Sheller-Chiles, relator's situation is similar to the
claimant's in that case. In Sheller-Chiles, we held that being found to be " 'capable of
limited and part-time employment activities' [that] 'would require breaks from the work
activity on a frequent basis,' " not to be capable of sustained remunerative employment,
holding that sustained remunerative employment meant four or more hours of work. In
doing so, we said:
Dr. Chiarella indicated only that claimant was "capable of
work with various limitations and modifications[,]" "capable
of limited and part-time employment activities[,]" and "would
No. 14AP-855 5
require breaks from the work activity on a frequent basis."
These descriptions are not necessarily equivalent to claimant
being capable of "sustained" remunerative employment. Dr.
Chiarella's report did not provide any detailed figures or
descriptions from which the commission or this court could
extrapolate how many hours claimant could work. Thus, there
is nothing in Dr. Chiarella's statements provided in his report
that gives the court any confidence that he was concluding
claimant could work four or more hours per day, which prior
case law from this court establishes is the standard for
determining whether part-time work capacity constitutes
"sustained" remunerative employment. See, e.g., State ex rel.
Franklin Cty. Bd. of Commrs. v. Indus. Comm., 10th Dist. No.
09AP-379, 2010-Ohio-2728, ¶ 62; State ex rel.
DaimlerChrysler Corp. v. Indus. Comm., 10th Dist. No.
06AP-387, 2007-Ohio-1498, ¶ 38, State ex rel. Moyer v.
Sharonville Fire Dept., 10th Dist. No. 04AP-92, 2005-Ohio-
587, ¶ 12; State ex rel. Clevite Elastomers v. Torok, 10th Dist.
No. 02AP-116, 2002-Ohio-4770, ¶ 19; State ex rel. DeSalvo v.
May Co., 10th Dist. No. 98AP-986 (June 29, 1999)
(memorandum decision); [State ex rel.] Cale [v. Indus.
Comm., 10th Dist. No. 01AP-1143, 2002-Ohio-2924].
Furthermore, we note that the Supreme Court of Ohio
affirmed this court's decision in DeSalvo regarding the four-
hour threshold in State ex rel. DeSalvo v. May Co., 88 Ohio
St.3d 231 (2000). See DaimlerChrysler Corp. at ¶ 31 (pointing
out that the Supreme Court affirmed this court's decision in
DeSalvo). For these reasons, we find Dr. Chiarella's report
could not constitute some evidence to support the
commission's determination that claimant could participate
in part-time sustained remunerative employment, and we
overrule the commission's objection.
(Emphasis added.) Id. at ¶ 5. Based on what we have stated in Sheller-Chiles, I would
find that Dr. Sinha's report that, relator "can at a minimum work part-time, up to 4 hours
a day, with generous breaks built in," does not constitute some evidence to support a
determination that relator could participate in part-time sustained remunerative
employment.
{¶ 11} To illustrate, when an individual is said to work from 8:00 a.m. to 5:00
p.m., that work time, nine hours, includes a meal break and is considered to be and is paid
as an eight-hour day.
No. 14AP-855 6
Where there are no overtime premium payments the rule for
determining the regular rate of pay is to divide the wages
actually paid by the hours actually worked in any workweek
and adjudge additional payment to each individual on that
basis for time in excess of forty hours worked for a single
employer.
(Emphasis added.) Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 459-60 (1948).
Under the federal Fair Labor Standards Act, employers covered by the statute are
required to pay their employees specified minimum hourly wages and time-and-one-half
pay for work in excess of 40 hours a week. 29 U.S.C. 206, 207(a)(1). While the Fair Labor
Standards Act does not define "work," it does permit a deduction in pay for bona fide
meals. See, e.g., 19 C.F.R. 785.19(a).
{¶ 12} As for other types of breaks, places of employment customarily provide for
short work breaks. In fact, the Fair Labor Standards Act addresses the short rest or
"breaks" concept.
Rest periods of short duration, running from 5 minutes to
about 20 minutes, are common in industry. They promote the
efficiency of the employee and are customarily paid for as
working time. They must be counted as hours worked.
Compensable time of rest periods may not be offset against
other working time such as compensable waiting time or on-
call time. Mitchell v. Greinetz, 235 F.2d 621, 13 W.H. Cases 3
(C.A. 10, 1956); Ballard v. Consolidated Steel Corp., Ltd., 61
F.Supp. 996 (S.D.Cal.1945).
29 C.F.R. 785.18. Lillehagen v. Alorica, Inc., C.D.Cal. No. SACV 13-0092-DOC(JPRx)
(Dec. 10, 2014).
{¶ 13} Dr. Sinha's opinion that relator requires "generous" work breaks is not the
same as "[r]est periods of short duration" under the Fair Labor Standards Act. A four-
hour day with "generous breaks built" in is not four hours of work. We can assume that
no employer will be willing to pay for "generous breaks," nor can we find that the Fair
Labor Standards Act would require it. We are left with no resolution for the purposes of
examining the commission's decision, of whether relator can be at a work place for four
hours or actually work for four hours, which, with generous breaks, could be five or six
hours. Dr. Sinha's statement of "at a minimum" applied to part-time work, and her
No. 14AP-855 7
definition of part-time work was "up to 4 hours." This falls short of what we have defined
in Sheller-Chiles, as supporting a finding of capability for sustained remunerative
employment. As such, it fails to constitute some evidence on which to support the
commission's determination.
{¶ 14} I would sustain relator's second objection based on Dr. Sinha's
recommendation not meeting the Sheller-Chiles standard of sustained remunerative
employment, and grant the requested writ.
_____________________________
No. 14AP-855 8
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Timothy Bonnlander, :
Relator, :
v. : No. 14AP-855
Robert and Marvin Hamon : (REGULAR CALENDAR)
and Industrial Commission of Ohio,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on June 22, 2015
Lisa M. Clark, for relator.
Michael DeWine, Attorney General, and Eric J. Tarbox, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 15} In this original action, relator, Timothy Bonnlander, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying him permanent total disability ("PTD") compensation, and to
enter an order awarding the compensation.
Findings of Fact:
{¶ 16} 1. On October 13, 1992, relator sustained severe injuries while employed
as a laborer with respondent Robert and Marvin Hamon, DBA Hamon Home
Improvements. On the date of injury, relator was involved in a motor vehicle collision
while driving his employer's van.
No. 14AP-855 9
{¶ 17} 2. The industrial claim (No. L7512-27) is allowed for:
Closed head injury; fracture right shoulder; cervical fracture
C-6; right pulmonary contusion; T12-L1 compression
fracture; bursitis right shoulder; torn glenoid labrum; right
shoulder impingement syndrome; right shoulder
acromioclavicular joint arthrosis; lumbosacral spondylosis;
thoracic spondylosis; lumbar degenerative disc disease L4-
L5, L3-L4, L3-L4, L5-S1; thoracic degenerative disc disease
T-11-T12; depressive disorder.
{¶ 18} 3. On November 22, 2013, psychologist William C. Melchior, Ed.D, wrote:
Mr. [Bonnlander] was initially seen at our office on 3-4-09
for a psychological evaluation and was diagnosed to suffer
with Depressive Disorder-NOS (311) which developed as a
direct and proximate result of his 10-13-92 work-related
injury. Mr. [Bonnlander's] claim was amended to include
this psychological condition on 5-24-09. He has been
participating in individual outpatient psychotherapy.
Treatment has been directed to facilitate management of his
depression, chronic pain, and stress.
***
Despite continued efforts through therapy, Mr.
[Bonnlander's] psychological condition has reached a stable
plateau where no further fundamental change can be
expected. The claimant's psychological condition was
determined to have reached [maximum medical
improvement] in November of 2013. His ongoing
psychological symptoms include: decreased stress tolerance,
decreased concentration, impaired sleep, fatigue, decreased
self-worth, decreased social activities, sensitivity to the
opinion of others, distrust of others, irritability, and chronic
pain. These symptoms result in: difficulty maintaining
attention for extended periods of time, reduced ability to
concentrate, an inability to accept criticism appropriately,
and inability to complete a normal work-day and work week
without an unreasonable number and length of rest periods,
inability to deal with stress for semi-skilled and skilled work,
and respond appropriately to changes in a routine work
setting.
***
No. 14AP-855 10
Mr. [Bonnlander], a 45 year old male, was injured on the job
on 10-13-92, while employed as a carpenter for Hanover [sic]
Home Improvements. Results of his injury included
numerous physical problems related to his neck, back and
shoulder. His work ethic was exhibited by his work history.
However, Mr. [Bonnlander] is no longer able to pursue
physically demanding jobs. His chronic pain, medical
regimen, and psychological condition contribute to his
inability to maintain focus or concentration for an extended
period of time. Mr. [Bonnlander's] ability to cope with his
pain is limited to relatively short segments of time. He would
not be able to perform a normal work day without an
unusual number and length of rest periods. Therefore, this
psychologist agrees that Mr. Bonnlander is permanently and
totally disabled [from] work.
{¶ 19} 4. On February 28, 2014, relator filed an application for PTD
compensation. In support, relator submitted the November 22, 2013 report of
Dr. Melchior.
{¶ 20} 5. On May 13, 2014, at the commission's request, relator was examined by
psychologist Debjani Sinha, Ph.D. In her 11-page narrative report, Dr. Sinha states:
Mental Status Examination (MSE):
***
Review of Four Functional Areas:
ADL/Typical Days: Mr. Bonnlander participates in the
care of his children. He wakes up before the children, and
takes his daughter to the bus-stop at 6:30 am. He watches
television till his son wakes up and helps him get ready for
school. He then takes him, to the bus-stop at 7:40 am. He
watches television till 10 am, and then cares for the animals
(chickens and the family dog). In this past month he has
started raising chickens. He will cut grass and do weeding as
necessary, but noted that the weeding is difficult for him as it
contributes to pain. He leaves all the household tasks to his
wife. The children return home from school between 3 -
3:30 pm, and he works closely with his son helping him with
homework. Mr. Bonnlander commented that he feels his
children have given him a sense of purpose, or else he would
have been "mad." In the evenings he may watch his son's
baseball game. On other days he helps coach his daughter's
No. 14AP-855 11
softball team, in an effort to be involved in their lives. He
drives independently. He is not required to take care of any
household chores, but noted that he does everything else
outside of the house. He can fix simple meals if necessary,
such as sandwiches and will occasionally go to the grocery
store. His wife manages the family's finances and pays the
bills. He is particularly worried about the family's finances as
he supports his family on SSDI and by using in [sic] credit
cards; he reports that he has over 10K in credit card debt. He
will occasionally exercise, doing stretches to ease his pain.
He does not go to malls or do other forms of retail shopping.
He will attend activities related to his children's sports and
school. He attends church every Sunday. Class 2 - Mild
Impairment.
Social Functioning: Mr. Bonnlander reports minimal
contact outside of his family. He gets along with his wife and
three children. He spends a lot of time with his brother,
Kenny and they go places together. He generally gets along
with his extended family, and reports that overall
interactions with others are generally "ok." He acknowledges
irritability, and reports that he has snapped at people,
including his family and his brother, even when he works
hard not to. He has been in a couple of situations where he
has been drawn into a yelling exchange with one of the other
parents while their children was playing a game. He tries not
to engage much with others, and usually limits himself to
coaching the team, mostly in an effort to be involved with his
children. He occasionally will feel that others do not like him,
but he reports that he tries "not to let it bother" him. Overall,
he reports that when he is around people he tries "to be
quiet." Class 3 - Moderate Impairment.
Concentration, Persistence, and Pace: Mr.
Bonnlander's ability to concentrate is variable, in part
influenced by the medication he takes, his pain, and his
mood. His memory appears to be problematic and can
interfere with functioning in multiple domains. Yet he
functions relatively well in attending to self-assigned tasks,
many of which require persistence. He is able to do so as he
follows a pre-defined schedule such as the children's school
hours, the support of his brother, and the absence of any
demands to meet continuous deadlines. He does well with
routine. Class 3 - Moderate Impairment.
No. 14AP-855 12
Adaptation: Mr. Bonnlander has adapted to the changes in
his functioning since the accident. He has improved
considerably from the cognitive weaknesses observed right
after his accident. Mood issues were not reported initially,
but emerged later. His mood remains depressed but stable,
and he has made a concerted effort to prevent it from
overwhelming him. He successfully returned to employment
after his accident, and only stopped working because of pain
symptoms. He actively participates in his children's care and
takes care of responsibilities around his home. He is active in
coaching his children's sports teams, and attends all their
activities as an involved parent. He has demonstrated
initiative and motivation; for example, he has recently
initiated raising chickens and has actively signed up to
assume responsibilities for coaching his children's sports
teams. He has developed a coping style of suppressing his
thoughts and feelings around the losses associated with the
accident and the corresponding stressors; he is particular not
to permit much weight to the depressed mood and thoughts,
keeping much of these feelings to himself. The emotional
distress associated with the accident and the changes it has
resulted in his life are masked but continue to surface in how
he thinks about his life circumstances, his physical and
emotional reactions, and his cognitions. Class 2 - Mild
Impairment.
***
Discussion/Opinion:
***
Based on his allowed psychological/psychiatric conditions
and its impact in the four functional areas, the whole person
impairment is 23%.
***
Based solely on the allowed psychiatric/psychological
condition, Mr. Bonnlander is capable for work. As a
condition, depressive disorder does not preclude an
individual from working. It is the level of impairment that
will determine the nature of work and the limitations
resulting from the allowed psychiatric/psychological
condition. Mr. Bonnlander's memory and attentional
abilities will be the most significant limitation in work-
No. 14AP-855 13
related activities. Beyond the cognitive deficits that likely
stemmed from the closed head injury, depressive disorder
can impact information processing, notably memory and
attention-concentration. Variable alertness was noted during
the interview, but these extended for short periods of time,
and this will limit his ability to engage in any sustained,
competitive work. His emotional state can also adversely
impact social interactions and it appears that his tolerance
levels for either high stimulation or external stressors (such
as team members' parents yelling) are somewhat
compromised. He has the benefit of participating in many
activities without having to meet deadlines, work at a
sustained pace, or have increased contact with others.
Routines appear to be helpful to Mr. Bonnlander. Job tasks
that require constant new learning and marked attention to
details are not recommended based on on-going memory
problems. Fluency of ideas may be impacted as well. Any
work environment that is considered for him will likely need
to include flexibility for these areas. He can at a minimum
work part-time, up to 4 hours a day, with generous breaks
built in.
{¶ 21} 6. On May 13, 2014, Dr. Sinha completed a form captioned "Occupational
Activity Assessment, Mental & Behavioral Examination." The form is provided by the
commission.
{¶ 22} 7. On the form, Dr. Sinha indicated by her mark her agreement with the
preprinted statement: "This Injured Worker is capable of work with the limitation(s) /
modification(s) noted below."
{¶ 23} In the space provided, Dr. Sinha wrote in her own hand:
Part-time work
- accommodate for variable concentration
-routine jobs are more appropriate
-minimal new learnings on an ongoing basis
-multiple breaks
{¶ 24} 8. On or about May 12, 2014, at the commission's request, relator was
examined by John J. Brannan, M.D. In his five-page narrative report, Dr. Brannan
opines that relator has a 31 percent whole person impairment for the allowed physical
conditions of the industrial claim.
No. 14AP-855 14
{¶ 25} In his narrative report, Dr. Brannan further opines:
In regards to the functional capacity, based on the fact that
his conditions are stable, and that he displays no distinct
neurologic or unstable findings as a result of these disorders,
I recommend sedentary work related duties, where
avoidance of excessive overhead use of the right arm and
excessive lifting, bending, and twisting would be indicated.
{¶ 26} 9. On May 12, 2014, Dr. Brannan completed a "Physical Strength Rating"
form. On the form, Dr. Brannan indicated by his marks that relator is capable of
"sedentary work."
{¶ 27} 10. At the request of relator's counsel, vocational expert Janet Chapman,
reviewed information and reports contained in the claim file. In her four-page narrative
report, Chapman concludes:
In summary, Mr. Bonnlander presents a very limited
vocational profile. He demonstrates a strong work ethic as
evidenced by his return to work for an extended time
following the injury and his participation in vocational
rehabilitation services. Unfortunately, the combination of
physical limitations to a diminished range of sedentary,
unskilled work at best combined with cognitive issues and
lack of transferable skills (or inability to use them) suggest
that Mr. Bonnlander would be unable to return to work in
the competitive labor market.
{¶ 28} 11. Following a September 11, 2014 hearing, an SHO issued an order
denying the PTD application. The SHO's order explains:
The Injured Worker sustained an injury on 10/13/1992 when
he was riding in a work van leaving a job and was involved in
a motor vehicle accident. As a result of this injury, the
Injured Worker sustained a closed head injury, injury to his
right shoulder, injuries to his cervical, thoracic and lumbar
spine, a right pulmonary contusion [as] well as a depressive
disorder. The Injured Worker underwent right shoulder
surgery on 07/14/1998. The Injured Worker currently sees a
pain management specialist for treatment of [his] orthopedic
conditions. The Injured Worker currently also see[s] a
psychiatrist on a monthly basis as well as a psychotherapist.
The Injured Worker was examined at the request of the
Industrial Commission by Dr. Brannan on 05/12/2014
No. 14AP-855 15
[with] regard to the allowed orthopedic conditions in the
claim. Dr. Brannan noted that the Injured Worker has
undergone extensive treatment over the years due to his
orthopedic condition including medical and chiropractic
care. Dr. Brannan did a physical examination of the Injured
Worker and also reviewed various medical records contained
in the file. He concluded that the Injured Worker's
orthopedic condition had reached maximum medical
improvement as a review of documentation in file has
demonstrated no change in the Injured Worker's condition
or in medical planning. He concluded that he Injured
Worker has a 31% whole person impairment rating.
Dr. Brannan indicated that the Injured Worker's medical
condition was stable and he displayed no distinct neurologic
or unstable findings as a result of the allowed conditions in
the claim. He stated that the Injured Worker could engage in
sedentary work activity with the avoidance of excessive
overhead use of the right arm as well as avoidance of
excessive lifting, bending and twisting.
The Injured Worker was examined at the request of the
Industrial Commission by Dr. Sinha on 05/13/2014 with
regard to the allowed psychological condition in the claim.
Dr. Sinha indicated that the Injured Worker continues to
have ongoing memory issues and that his most significant
difficulty is with recent memory. She noted that the Injured
Worker reported difficulty focusing on task and that his
verbal fluency was impaired as well. She further noted that
the Injured Worker's sequencing abilities were impaired.
With regard to activities of daily living, Dr. Sinha concluded
that the Injured Worker had a mild impairment. She noted
that the Injured Worker is able to attend activities related to
his children's school and sports activities including coaching
his daughter's softball team.
With regard to social functioning, Dr. Sinha concluded that
the Injured Worker was moderately impaired as the Injured
Worker reports minimal contact with individuals outside of
his family and he tries not to engage much with others.
With regard to concentration, persistence and pace, Dr.
Sinha concluded that the Injured Worker was moderately
impaired. She noted the Injured Worker's ability to
concentrate is varied. She noted that the Injured Worker's
No. 14AP-855 16
memory appears to be problematic but that the Injured
Worker functions relatively well in attending to self-assigned
tasks, many of which require persistence. She noted that the
Injured Worker does well with routine.
With regard to adaptation, Dr. Sinha concluded that the
Injured Worker has a mild impairment. She stated that the
Injured Worker has adapted to changes in his functioning
since the industrial injury and that his cognitive weaknesses
have improve[d] considerably since the industrial injury. She
further noted that the Injured Worker has demonstrated
initiative and motivation as demonstrated by his recent
activities of daily living as well as assuming responsibility for
coaching his children's sports teams.
Dr. Sinha concluded that the Injured Worker['s]
psychological condition has reached maximum medical
improvement and results in a 23% whole person impairment
rating. She concluded that based upon the allowed
psychological condition in the claim the Injured Worker is
capable of work. She stated that the Injured Worker's
memory and attention abilities would be the most significant
limitation in work related activities. She stated that job tasks
that require new learning and marked attention to detail
would not be recommended based upon his memory
problems. She concluded that the Injured Worker can at a
minimum work part-time, up to four hours a day with
generous breaks built-in. She noted that this employment
would ideally [involve] routine jobs and would also involve
minimal new learning on a[n] ongoing basis.
The Staff Hearing Officer finds that the Injured Worker's
orthopedic and psychological conditions are permanent and
have reached maximum medical improvement. The Hearing
Officer finds that the allowed orthopedic and psychological
conditions preclude the Injured Worker from returning to
his former position of employment but that * * * the Injured
Worker could engage [in] sedentary employment activity
which involves part-time work, up to four hours a day and
also involves routine employment and minimal new learning
on an ongoing basis. The sedentary work should also avoid
overhead use of the right arm and avoid excessive lifting,
bending and twisting.
The Staff Hearing Officer finds that the Injured Worker is 46
years of age, has a 10th grade education with a GED and is
No. 14AP-855 17
able to read, write and engage in basic mathematical
computation without difficulty. The Injured Worker has been
employed as a maintenance worker and mail carrier for the
U.S. Postal Service, as well as a construction worker and
laborer.
The Staff Hearing Officer finds that the Injured Worker's age
of 46 is an asset with regard to the Injured Worker's ability
to return to work and to compete in the workforce. The
Hearing Officer finds that the Injured Worker's age is not a
barrier which would prevent him adapting to new work
rules, processes, methods and procedures involved in a new
occupation, especially an occupation which the Injured
Worker has not engaged in the past.
The Staff Hearing Officer further finds that the Injured
Worker's 10th grade education with a GED as well as his
ability to read, write and perform basic math without
difficulty would be an asset with regard to the Injured
Worker's returning to employment. The Hearing Officer
further finds that the Injured Worker's educational
achievement would be an asset with regard to the Injured
Worker learning to perform some other type of employment
or engaging in rehabilitation.
The Injured Worker's past work and experience has involved
employment as a maintenance worker and mail carrier for
the U.S. Postal Service as well as employment as a
construction worker and factory worker. The Hearing Officer
notes that the Injured Worker's past work experience has
been semi-skilled in nature and has involved supervisory
work. The Injured Worker['s] employment as a construction
worker required him to read blue prints and to measure and
cut materials needed to construct various buildings. The
Injured Worker's construction job involved supervising
between 3 and 5 individuals. This job required that the
Injured Worker oversee the work of others and to [e]nsure
that the work completed conformed to specific standards.
The Injured Worker's employment as a machine
operator/laborer at a door factory required the Injured
Worker to read purchase orders as well as supervise the work
of 3 to 4 individuals. This job also required the Injured
Worker to ensure that work was completed by other
individuals according to specific standards.
No. 14AP-855 18
The Hearing Officer finds that the Injured Worker's ability to
perform semi-skilled employment in the past is evidence that
he should be able to perform at least unskilled entry level
employment in the future. The Hearing Officer further finds
that this ability to engage in semi-skilled employment also
demonstrated that the Injured Worker has aptitude for
retraining. Therefore, the Hearing Officer finds that the
Injured Worker's past work experience is a positive factor
with regard to the Injured Worker returning to work.
A review of the file indicates that the Injured Worker has not
engaged in any effort at vocational rehabilitation. The
Hearing Officer notes that permanent total disability
compensation is a compensation of last resort, to be awarded
only when all reasonable avenues of accomplishing a return
to sustained remunerative employment have failed. It is not
unreasonable to expect that an Injured Worker is to
participate in returning to work efforts to the best of his
ability or to take an initiative to improve employment
potential. State ex rel. Wilson v. Indus. Comm. (1997), 80
Ohio St.3d 250. The Hearing Officer finds that the Injured
Worker has not engaged in any vocational rehabilitation to
improve his prospects for returning to the workforce. The
Hearing Officer finds that this negatively reflects on the
Injured Worker's application for permanent total disability
compensation.
Based upon the Injured Worker's age, education and work
experience as well as the restrictions noted by Dr. Brannan
and Dr. Sinha, the Hearing Officer finds that the Injured
Worker is able to engage in sustained remunerative
employment work activity and is not permanently and totally
disabled.
Therefore, the Hearing Officer denies Injured Worker's
Application for Permanent Total Disability Compensation
filed 02/28/2014.
{¶ 29} 12. On October 18, 2014, the three-member commission mailed an order
denying relator's request for reconsideration.
{¶ 30} 13. On October 23, 2014, relator, Timothy Bonnlander, filed this
mandamus action.
No. 14AP-855 19
Conclusions of Law:
{¶ 31} Two issues are presented: (1) whether the commission can rely upon the
reports of Dr. Sinha in determining residual functional capacity when the SHO's order
fails to specifically find that relator needs "generous breaks" or "multiple breaks" while
working as Dr. Sinha found in her reports, and (2) whether Dr. Sinha's finding that
relator can "at a minimum work part-time, up to 4 hours a day, with generous breaks
built in" is so restrictive that it precludes sustained remunerative employment under
relevant case law.
{¶ 32} The magistrate finds: (1) the SHO's failure to specifically find that relator
needs "generous breaks" or "multiple breaks" while working as Dr. Sinha found does not
preclude commission reliance upon Dr. Sinha's reports, and (2) Dr. Sinha's finding that
relator can "at a minimum work part-time, up to 4 hours a day, with generous breaks
built in" is not so restrictive that it precludes all sustained remunerative employment
under relevant case law.
{¶ 33} 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
{¶ 34} In his brief, relator argues:
The Staff Hearing Officer in this case did state what evidence
[he] relied upon, Dr. Sinha's report, but did not explain why
he did not accept the finding of impairment by Dr. Sinha that
Mr. Bonnlander would need generous breaks or multiple
breaks. He omitted that limitation from his findings but
accepted the rest of Dr. Sinha's opinion without explanation.
In doing so and in denying Relator's application for
permanent and total disability, the Industrial Commission
did not comply with the requirements of [State ex rel. Noll v.
Indus. Comm., 57 Ohio St.3d 203 (1991)].
(Relator's brief, 8.)
{¶ 35} The paragraph of the SHO's order critical to relator's argument states:
The Staff Hearing Officer finds that the Injured Worker's
orthopedic and psychological conditions are permanent and
have reached maximum medical improvement. The Hearing
Officer finds that the allowed orthopedic and psychological
No. 14AP-855 20
conditions preclude the Injured Worker from returning to
his former position of employment but that [] the Injured
Worker could engage [in] sedentary employment activity
which involves part-time work, up to four hours a day and
also involves routine employment and minimal new learning
on an ongoing basis. The sedentary work should also avoid
overhead use of the right arm and avoid excessive lifting,
bending and twisting.
{¶ 36} The portion of Dr. Sinha's narrative report critical to relator's argument,
states:
He can at a minimum work part-time, up to 4 hours a day,
with generous breaks built in.
{¶ 37} Also critical to relator's argument is Dr. Sinha's handwritten statement on
the "Occupational Activity Assessment" that relator will require "multiple breaks" while
working.
{¶ 38} Here, relator observes that, in the above noted paragraph of the SHO's
order, the SHO states that he "finds" the items listed in the paragraph. That is, the SHO
states that he "finds" that the orthopedic and psychological conditions are permanent
and have reached maximum medical improvement ("MMI"). Further, the SHO states
that he "finds" that the allowed conditions preclude a return to the former position of
employment. Relator argues that the paragraph is an exclusive listing of the SHO's
findings.
{¶ 39} In the paragraph of the SHO's order immediately above the paragraph just
discussed, the SHO states that Dr. Sinha "concluded that the Injured Worker can at a
minimum work part-time, up to four hours a day, with generous breaks built in."
Relator argues that the just-quoted language is not a finding of the SHO, but merely a
reference to what Dr. Sinha has stated in her report. In short, relator interprets that the
SHO failed to make a finding that relator will need "generous breaks" in order to
perform work. Apparently, relator somehow concludes that the SHO's omission in
finding a need for "generous breaks" was intended to convey a rejection of a need for
"generous breaks."
{¶ 40} Relator's interpretation of Dr. Sinha's report is flawed. To begin, there is
no direct indication in the SHO's order that the SHO intended to strike the "generous
No. 14AP-855 21
breaks" language from Dr. Sinha's report, which was specifically relied upon by the SHO
to determine residual functional capacity.
{¶ 41} Moreover, the commission successfully answers relator's interpretation of
Dr. Sinha's report by pointing out that Dr. Sinha states in the second to the last
paragraph of the order:
Based upon the Injured Worker's age, education and work
experience as well as the restrictions noted by Dr. Brannan
and Dr. Sinha, the Hearing Officer finds that the Injured
Worker is able to engage in sustained remunerative
employment work activity and is not permanently and totally
disabled.
(Emphasis added.)
{¶ 42} Thus, the above quoted paragraph of the SHO's order clearly indicates that
the SHO adopted all of the "restrictions" noted by Drs. Sinha and Brannan. Dr. Sinha's
opinion that relator will need "generous breaks" and "multiple breaks" in order to work
are indeed "restrictions" as referenced in the second to the last paragraph of the order.
{¶ 43} Based upon the above analysis, relator's argument as to the first issue
lacks merit.
Second Issue
{¶ 44} In State ex rel. Toth v. Indus. Comm., 80 Ohio St.3d 360, 362 (1997), the
Supreme Court of Ohio held that "part-time work constitutes sustained remunerative
employment." Id. at 362. However, the Toth court did not hold that any part-time work
— no matter how few the hours per week the job might entail — is considered sustained
remunerative employment.
{¶ 45} On a case-by-case basis, guidance from this court has developed over time
as to what part-time employment may be viewed as sustained remunerative
employment.
{¶ 46} Recently, in State ex rel. Sheller-Chiles v. Indus. Comm., 10th Dist. No.
13AP-245, 2014-Ohio-313, ¶ 5, this court had occasion to review the case law
establishing the standard for determining whether part-time work capacity constitutes
"sustained" remunerative employment. This court held that a work capacity of "four or
more hours per day" constitutes sustained remunerative employment. Id.No. 14AP-855 22
{¶ 47} At issue here is commission reliance upon the reports of Dr. Sinha who
opines that relator "can at a minimum work part-time, up to 4 hours a day * * *." In his
brief, relator argues:
As Mr. Bonnlander is only able to work up to four hours a
day and has additional restrictions, including the need for
generous, multiple breaks, when applying this court's
decisions and interpretation of part-time work, Mr.
Bonnlander is so restricted by his limitations such that part-
time work would not be considered sustained remunerative
employment.
(Relator's brief, 11.)
{¶ 48} Analysis begins with the observation that the ability to work "up to" a four-
hour day meets the standard set by this court in Sheller-Chiles, that a capacity for work
of "four or more hours per day" can be sustained remunerative employment. That is,
the magistrate disagrees with relator's suggestion that his ability to work "up to" a four-
hour day falls just short of the standard. In the magistrate's view, an ability to work "up
to" a four-hour day is indeed the ability to work a four-hour day.
{¶ 49} Moreover, the magistrate observes that Dr. Sinha found that relator can
"at a minimum" work "up to" a four-hour day. Use of the term "at a minimum" infers
that relator can work more than "up to" the four-hour day that Dr. Sinha opines he can
do.
{¶ 50} Relator's pointing out that the four-hour work day must include
"generous, multiple breaks" fails to advance his argument that Dr. Sinha's reports fail to
support an ability to perform sustained remunerative employment.
{¶ 51} Thus, Dr. Sinha's reports provided the commission with some evidence
supporting its determination that relator retains the residual functional capacity for
sustained remunerative employment.
{¶ 52} 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
No. 14AP-855 23
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).