State ex rel. Digiacinto v. Indus. Comm.

[Cite as State ex rel. Digiacinto v. Indus. Comm., 2018-Ohio-1999.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Paul A. Digiacinto, :
Relator, :
v. : No. 16AP-248
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Wheeling-Pittsburgh Steel Corp., :
Respondents. :
DECISION
Rendered on May 22, 2018
On brief: The Bainbridge Firm, LLC, Andrew J. Bainbridge,
Christopher J. Yeager, and Carol L. Herdman, for relator.
On brief: Michael DeWine, Attorney General, and Eric J.
Tarbox, for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO MAGISTRATE'S DECISION
BRUNNER, J.
{¶ 1} Relator, Paul A. Digiacinto, filed this original action seeking a writ of
mandamus that would order respondent, Industrial Commission of Ohio ("the
commission"), to vacate its February 25, 2016 order that granted the December 15, 2015
motion of the administrator of the Ohio Bureau of Workers' Compensation ("the
administrator" or "BWC") for the exercise of continuing jurisdiction over the November 30,
2015 order of its staff hearing officer ("SHO") that awarded permanent total disability
("PTD") compensation to relator, and to enter an order that denies the administrator's
motion and reinstates the November 30, 2015 order of the SHO awarding PTD
No. 16AP-248 2
compensation. At issue is whether the commission properly considered all relevant
information in determining that Digiacinto was ineligible for PTD compensation because
he had voluntarily abandoned the workforce.
{¶ 2} Digiacinto asserts that the commission abused its discretion in determining
that he had voluntarily abandoned the workforce, rendering him ineligible to receive PTD
compensation.
{¶ 3} We referred this matter to a magistrate of this Court pursuant to Civ.R. 53(C)
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 found
Digiacinto failed to meet his burden proving that BWC had waived its legal right to assert
the defense of voluntary abandonment of the workforce. The magistrate also found
Digiacinto failed to meet his burden showing that his allowed condition "independently"
caused his disability. (App'x at ¶ 83.) Based on these findings, the magistrate decided that
this Court should deny Digiacinto's request for a writ of mandamus.
{¶ 4} Digiacinto timely filed his objections to the magistrate's decision. The record
before us indicates that no memorandum contra the objections was filed.
{¶ 5} Having examined the magistrate's decision, conducted an independent
review of the record pursuant to Civ.R. 53, and undertaken due consideration of the
objections, we sustain Digiacinto's objections and remand this matter to the commission
for action consistent with this decision.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 6} The magistrate's 15-page decision details Digiacinto's industrial injury claim
history. No one disputes that on August 1, 2001, Digiacinto sustained an injury in the
course of and arising out of his employment with respondent, Wheeling-Pittsburgh Steel
Corporation, a self-insured employer. Digiacinto's claim was allowed initially for lumbar
strain. Other conditions were allowed later, including disc herniation at L4-5 and L5-S1,
lumbar radiculopathy, and right L3-4 disc herniation. Digiacinto was awarded temporary
total disability ("TTD") compensation. That compensation was terminated in 2003 when
Digiacinto had reached maximum medical improvement ("MMI") for the industrial injury.
{¶ 7} According to the record, Digiacinto filed for Social Security disability benefits
on May 28, 2002 for the lumbar conditions allowed in his claim. A Social Security
No. 16AP-248 3
Administration ("SSA") administrative law judge ("ALJ") heard Digiacinto's claim on
August 22, 2003 and thereafter, on November 18, 2003, awarded him Social Security
disability benefits. The ALJ's decision of the same date ("ALJ decision") contained these
findings:
After consideration of the entire record, the Administrative
Law Judge makes the following findings:
[One] The claimant has not engaged in any substantial
gainful activity since the disability onset date.
[Two] The claimant's impairments which are considered to be
"severe" under the Social Security Act are as follows: lumbar
disc herniations with foraminal stenosis and lumbar
radiculopathy.
[Three] The claimant's impairments do not, singly or in
combination, meet or equal in severity the appropriate
medical findings contained in 20 CFR Part 404, Appendix 1 to
Subpart P (Listing of Impairments).
[Four] The claimant's allegations are credible.
[Five] The claimant has the residual functional capacity to do
the following: He can perform the exertional demands of no
more than sedentary work, or work which is generally
performed while sitting and does not require lifting in excess
of ten pounds.
[Six] The claimant is unable to perform his past relevant work.
[Seven] The claimant was 52 years old (closely approaching
advanced age, 50 - 54) on the date his disability began. The
claimant has a high school education.
[Eight] The claimant has unskilled past relevant work.
[Nine] Based upon the claimant's residual functional capacity,
and vocational factors, there are no jobs existing in significant
numbers which he can perform. This finding is based upon the
following: medical - vocational rule 201.09.
[Ten] The claimant met and meets the disability insured
status requirements of the Social Security Act on the date
disability began, and through December 31, 2006.
No. 16AP-248 4
[Eleven] The claimant has been under a disability as defined
by the Social Security Act and Regulations since December 6,
2001.
(Emphasis sic.) (May 31, 2016 Stipulation of Evidence at 28.)
{¶ 8} Digiacinto applied for PTD compensation in 2006 and again in 2013. The
commission denied both applications based on medical and vocational reports opining that
Digiacinto was capable of performing sustained remunerative employment.
{¶ 9} In 2014, Digiacinto's claim was additionally allowed for psychological
conditions, including "depressive disorder; generalized anxiety disorder; adjustment
disorder with depressed mood." (July 5, 2016 Am. Stipulation of Evidence at 95.)
Digiacinto was awarded TTD compensation beginning February 7, 2014 and ending
November 24, 2015, when the allowed psychological conditions had reached MMI.
{¶ 10} On July 8, 2015, Digiacinto filed his third PTD application, this time
supported with the report of psychologist Marian Chatterjee, Ph.D., who had examined him
only for the allowed psychological conditions of the claim. In a five-page narrative report,
Dr. Chatterjee opined that Digiacinto "is permanently and totally disabled" by the allowed
psychological conditions. (May 31, 2016 Stipulation of Evidence at 56.) At the
commission's request, Digiacinto then was examined by Nicholas Varrati, M.D., for only
the allowed physical conditions of the claim. In his six-page narrative report, Dr. Varrati
opined that Digiacinto "would be unable to sustain remunerative employment." Id. at 64.
Additionally, Dr. Varrati indicated on a form captioned "Physical Strength Rating" that
Digiacinto "is incapable of work." Id. at 65. BWC opposed Digiacinto's application, arguing
that he had voluntarily abandoned the workforce.
{¶ 11} A commission SHO heard Digiacinto's application on November 30, 2015. At
the hearing, Digiacinto submitted a copy of the ALJ's decision concluding that he is
"entitled to a period of disability beginning December 6, 2001, and to disability insurance
benefits under Sections 216(i) and 223, respectively, of the Social Security Act." Id. at 21.
{¶ 12} On December 2, 2015, the SHO mailed an order ("SHO's order") granting
Digiacinto's 2015 application and awarding PTD compensation beginning September 9,
2015 based on the reports of Drs. Varrati and Chatterjee. The magistrate's decision sets
forth the SHO's order, in which the SHO explained he was not finding that Digiacinto had
voluntarily abandoned the workforce because the administrator had waived the defense of
No. 16AP-248 5
voluntary abandonment. The SHO's order also contains consideration of the decision of
the ALJ regarding Digiacinto's ability to work and whether he had voluntarily abandoned
the workforce:
However, even if the issue of voluntary abandonment of
employment has not been waived, the Staff Hearing Officer
finds that the Administrator has not demonstrated that the
Injured Worker abandoned the entire workforce for reasons
unrelated to this industrial injury. As indicated previously, the
Injured Worker stated that he last worked in December, 2001
following the industrial injury in this claim. The Injured
Worker filed for Social Security disability benefits on
05/28/2002 due to the lumbar conditions allowed in this
claim and was awarded Social Security disability benefits
following a hearing on 08/22/2003. Although the standard
for awarding permanent total disability benefits in this claim
and awarding Social Security disability benefits are different,
the Staff Hearing Officer finds that the Injured Worker has
demonstrated that his absence from the workforce was due to
the allowed physical conditions in this claim and not due to a
voluntary decision on his part to retire or otherwise not to
work. Thus, his absence from the workforce cannot be
considered a "retirement", nor can it be considered voluntary.
This conclusion is reinforced by the numerous MEDCO-14
Physician's Reports of Work Ability and C-84 Request for
Temporary Total Compensation reports on file from the
Injured Worker's treating physicians for the allowed physical
conditions and newly allowed psychological conditions that
indicate that he was disabled from all employment due to
these conditions. In this respect, the facts of this claim are not
similar to those in State ex rel. Kelsey Hayes Co. v. Grashel,
138 Ohio St. 3d 297, 2013-Ohio-4959 that describes the
standard for a finding of voluntary abandonment of the
workforce. Accordingly, the Staff Hearing Officer rejects the
argument that the Injured Worker had voluntarily abandoned
the entire workforce and is therefore precluded from receiving
permanent total disability benefits.
(July 5, 2016 Am. Stipulation of Evidence at 95.)
{¶ 13} On December 15, 2015, BWC filed a request for reconsideration, which the
commission approved on January 4, 2016. On February 25, 2016, the commission (with
one member recusing) issued an order exercising continuing jurisdiction over the SHO's
order, vacating the SHO's order, and determining that Digiacinto is ineligible for PTD
compensation because he voluntarily abandoned the workforce. The commission's order,
No. 16AP-248 6
pertinent parts of which are set forth in the magistrate's decision, states that it was a clear
mistake of law for the SHO to find the administrator had waived the affirmative defense of
voluntary abandonment of the workforce by not asserting it in prior proceedings before
BWC and the commission. The commission's order goes on to enumerate the evidence it
considered when deciding that Digiacinto is ineligible for PTD application; absent from that
enumeration is the 2003 decision of the ALJ finding Digiacinto was disabled as of
December 2001.
{¶ 14} Digiacinto commenced this action in mandamus on March 31, 2016, alleging
the commission abused its discretion in determining that he had abandoned the workforce,
rendering him ineligible to receive PTD compensation.
{¶ 15} The magistrate's decision identifies two issues presented in this matter:
(1) whether the finding in the SHO's order of November 30,
2015 that the administrator is barred from challenging
eligibility for PTD compensation on grounds of workforce
abandonment constitutes a clear mistake of law on which the
commission can properly exercise its continuing jurisdiction,
and (2) assuming the presence of a clear mistake of law on
which the commission properly exercised its continuing
jurisdiction, did the commission abuse its discretion by failing
to find that the decision of the SSA administrative law judge
excused relator from searching for work or pursuing vocational
rehabilitation, thus preserving eligibility for PTD
compensation?
(App'x at ¶ 63.) The magistrate reached the following conclusions of law:
(1) the finding in the SHO's order of November 30, 2015 that
the administrator is barred from challenging eligibility for PTD
compensation is a clear mistake of law, and (2) the commission
did not abuse its discretion by failing to find that the decision
of the SSA administrative law judge excused relator from
searching for work or pursuing vocational rehabilitation.
(App'x at ¶ 64.) The magistrate found that Digiacinto failed to meet his burden proving that
BWC had waived its legal right to assert the defense of voluntary abandonment of the
workforce. The magistrate also found Digiacinto failed to meet his burden showing that his
allowed condition "independently" caused his disability. (App'x at ¶ 83.) Based on these
findings, the magistrate decided that this Court should deny Digiacinto's request for a writ
of mandamus.
No. 16AP-248 7
II. OBJECTIONS TO MAGISTRATE'S DECISION
{¶ 16} Digiacinto presents two objections to the magistrate's decision:
I. The Magistrate erred in concluding that the industrial
commission considered the decision of the Administrative Law
Judge that found Relator to be incapable of work.
II. The Magistrate erred in finding that the ALJ's decision
cannot be used to support a showing that Relator was incapable
of returning to work and therefore did not abandon the work
force.
III. LAW AND DISCUSSION
A. Standard of Review
{¶ 17} To be entitled to relief in mandamus, Digiacinto must establish that he has a
clear legal right to relief, that the commission has a clear legal duty to provide such relief,
and that he has no plain and adequate remedy in the ordinary course of law. State ex rel.
Berger v. McMonagle, 6 Ohio St. 3d 28 (1983). To do this, Digiacinto must demonstrate
that the commission abused its discretion and, "in this context, abuse of discretion has been
repeatedly defined as a showing that the commission's decision was rendered without some
evidence to support it." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St. 3d 18, 20
(1987). To be successful in this mandamus action, Digiacinto must show that the
commission's decision is not supported by some evidence in the record. State ex rel. Elliott
v. Indus. Comm., 26 Ohio St. 3d 76 (1986). Conversely, where the record contains some
evidence to support the commission's findings, there has been no abuse of discretion, and
mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St. 3d
56 (1987). Credibility and the weight to be given evidence are clearly within the discretion
of the commission as the factfinder. State ex rel. Teece v. Indus. Comm., 68 Ohio St. 2d 165
(1981).
B. First Objection
{¶ 18} The magistrate's decision identifies as one of two relevant inquiries before us
"whether the commission abused its discretion by failing to find that the decision of the SSA
administrative law judge excused [Digiacinto] from searching for work or pursuing
vocational rehabilitation, thus preserving eligibility for PTD compensation." (App'x at
¶ 77.) The magistrate acknowledges that the commission's order "fails to even mention the
decision of the administrative law judge," but determines that the failure to mention the
No. 16AP-248 8
ALJ's decision "is not an abuse of discretion," given the rebuttable presumption that the
commission considers "all the evidence before it." (App'x at ¶ 78.) State ex rel. Lovell v.
Indus. Comm., 74 Ohio St. 3d 250, 252 (1996). Instead, the magistrate concludes that "the
presumption here is that the commission considered the decision of the administrative law
judge but rejected it as being unpersuasive as to the issue before the commission." (App'x
at ¶ 80.)
{¶ 19} Digiacinto argues that the magistrate erred in concluding that the
commission had considered the ALJ's decision finding that Digiacinto was incapable of
work.
{¶ 20} Digiacinto cites to Ohio Adm.Code 4121-3-34(D)(1)(d), one of the guidelines
that must be followed by the adjudicator in the sequential evaluation of applications for
PTD compensation:
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.
Digiacinto argues that this provision of the Ohio Administrative Code requires an
adjudicator trying to determine an issue of voluntary abandonment to "consider evidence
that is dispositive of the injured workers [sic] medical condition at or near the time of
removal from the work force." (Emphasis sic.) (Feb. 1, 2017 Objs. to Mag.'s Decision at 3.)
He further argues that the commission's adjudication of whether Digiacinto abandoned the
workforce should require examination of the ALJ's decision because that decision
constitutes "evidence that is persuasive to a finding of total disability that is dated closest
to the date of supposed abandonment." Id. at 4. Digiacinto argues "that he did not abandon
the workforce of his own volition and that only upon the finding of the Social Security
Administration that he is 'unable to perform his past relevant work' did he come to the
conclusion that future employment was not a possibility." Id.
{¶ 21} Digiacinto relies on the holding of State ex rel. Fultz v. Indus. Comm., 69
Ohio St. 3d 327, 329 (1994), to address the rebuttable nature of the presumption that the
commission considered "all the evidence." Lovell. In Fultz, the commission order denying
PTD benefits to the workers' compensation claimant listed the evidence it had considered.
No. 16AP-248 9
Omitted from that list were reports relating to the claimant's vocational and physical
attributes that were "key to the success or failure of claimant's application" for PTD
benefits. Fultz. The Supreme Court of Ohio held that the commission "either inadvertently
or intentionally ignored" highly pertinent evidence, an omission that resulted in the Court
remanding the PTD consideration back to the commission. Id. Digiacinto submits that, in
this matter, just as in Fultz, the presumption that all the evidence was considered "can be
rebutted such that one can come to the conclusion that the [ALJ's] decision was 'either
inadvertently or intentionally ignored.' " (Objs. to Mag.'s Decision at 5.)
{¶ 22} Digiacinto acknowledges in his objection that Fultz was subsequently held to
apply only when a commission order lists the evidence considered. State ex rel. Rothkegel
v. Westlake, 88 Ohio St. 3d 409, 411 (2000). He maintains, however, that the commission's
February 25, 2016 order "does in fact list the evidence considered and does in fact fail to
include the ALJ's decision which is key to the success or failure of [Digiacinto's] application
for PTD benefits." (Objs. to Mag.'s Decision at 6.) Digiacinto contends that the claim
history portion of the commission's order "does not include information about the ALJ's
decision that found [Digiacinto] was disabled and unfit for vocational rehabilitation and
was unable to work as of December of 2001." Id. at 7. Digiacinto argues that Fultz requires
the commission to consider the ALJ's decision, concluding that the magistrate's
presumption that the commission considered, but was not persuaded by, the ALJ's decision
"is not supported by the record." Id. at 8.
{¶ 23} We find Digiacinto's objection well-taken. Based on the evidence in the
record, the ALJ's decision would seem to carry considerable weight in the commission's
determination of Digiacinto's capability to work and, consequently, whether he left the
workforce of his own volition. Under the facts presented, we find that the magistrate could
not presume that the commission had considered "all the evidence" before it, specifically
the ALJ's decision. Lovell. As a result, we disagree with the magistrate's conclusion that
the commission's failure to mention the ALJ's decision in the February 25, 2016 order was
not an abuse of discretion.
{¶ 24} We sustain Digiacinto's first objection to the magistrate's decision.
C. Second Objection
{¶ 25} For his second objection, Digiacinto argues that the magistrate erred in
finding the ALJ's decision cannot be used to support a showing that Digiacinto was
No. 16AP-248 10
incapable of returning to work and, therefore, did not abandon the workforce of his own
volition.
{¶ 26} Based on our review of the record, the magistrate's decision, and Digiacinto's
objections, it appears that there is a misapprehension of why Digiacinto submitted the
ALJ's decision. The magistrate concludes that the ALJ's decision cannot be relied on
because the medical impairments underlying the ALJ's decision include a non-allowed
condition, foraminal stenosis. Relying on State ex rel. Waddle v. Indus. Comm., 67 Ohio
St.3d 452 (1993), the magistrate concludes that non-allowed medical conditions cannot be
used to advance or defeat a request for PTD compensation, although the mere presence of
non-allowed conditions does not automatically bar PTD compensation. The magistrate
stated:
The claimant must meet his or her burden of showing that an
allowed condition "independently" caused the disability. State
ex rel. Bradley v. Indus. Comm., 77 Ohio St. 3d 239, 242 (1997).
The allowed condition cannot combine with a non-allowed
condition to produce compensation. Id.
Here, relator cannot use a non-allowed condition, i.e.,
foraminal stenosis, to show that he was excused from searching
for work or pursuing vocational rehabilitation. While the
commission was silent on this point in its February 25, 2016
order, it is clear nevertheless that the decision of the
administrative law judge cannot be used to advance or defeat
relator's third PTD application.
(App'x at ¶ 83-84.)
{¶ 27} Digiacinto argues that the magistrate's analysis is flawed because the ALJ's
decision was submitted "merely to show that Digiacinto did not abandon the workforce,"
not to support his application for PTD compensation:
[Digiacinto] was told by the ALJ that he could not work, he did
not make that decision on his own. Therefore, even though the
ALJ's decision does consider non-allowed conditions[,] the
ALJ's decision is not provided to advance the claim that
[Digiacinto] was permanently and totally disabled but rather to
show that [Digiacinto] did not intentionally, or on his own
volition, abandon the work force.
(Objs. to Mag.'s Decision at 9-10.)
{¶ 28} Digiacinto argues there is enough medical evidence in his claim file to support
a finding that he is permanently and totally disabled based solely on the allowed conditions
No. 16AP-248 11
of his claim and because of it he has sustained his burden of showing that an allowed
condition "independently" caused his disability. (App'x at ¶ 83.) Digiacinto argues that the
magistrate erred in upholding the commission's apparent failure to consider the ALJ's
decision based on the magistrate's belief that the ALJ decision was intended to support
Digiacinto's request for PTD compensation, when in fact the decision was not provided for
that purpose.
{¶ 29} We agree with Digiacinto and also sustain his second objection to the
magistrate's decision.
IV. CONCLUSION
{¶ 30} Having reviewed the magistrate's decision, having made an independent
review of the record, and having given due consideration of Digiacinto's objections, we find
the magistrate has properly stated many of the pertinent facts, except as to the purpose for
which Digiacinto submitted the ALJ's report. We adopt those facts with which we agree
and make the additional findings of fact based on the record and the unopposed objections
of Digiacinto.
{¶ 31} We disagree with the magistrate's conclusions of law and do not adopt them.
Accordingly, we sustain both of Digiacinto's objections to the magistrate's decision. We
hereby issue a limited writ of mandamus, ordering the commission to vacate its decision of
February 25, 2016 that vacated the SHO's order of November 30, 2015 (mailed December 2,
2015) by which it determined that Digiacinto was ineligible for PTD compensation for
voluntary abandonment of the workforce. The commission is hereby ordered to conduct a
new hearing in a manner consistent with our conclusions of law as expressed in this
decision and thereafter enter a new order that adjudicates Digiacinto's PTD application
having corrected the deficiencies we have noted with its November 30, 2015 decision.
Objections sustained;
writ of mandamus granted.
KLATT and DORRIAN, JJ., concur.
No. 16AP-248 12
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Paul A. Digiacinto, :
Relator, :
v. : No. 16AP-248
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Wheeling-Pittsburgh Steel Corp., :
Respondents. :
MAGISTRATE'S DECISION
Rendered on January 19, 2017
The Bainbridge Firm, LLC, Andrew J. Bainbridge,
Christopher J. Yeager, and Carol L. Herdman, for relator.
Michael DeWine, Attorney General, and Eric J. Tarbox, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 32} In this original action, relator, Paul A. Digiacinto, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its February 25, 2016 order that grants the December 15, 2015 motion of the administrator
of the Ohio Bureau of Workers' Compensation ("administrator" or "bureau") for the
exercise of continuing jurisdiction over the November 30, 2015 order of its staff hearing
officer ("SHO") that awarded permanent total disability ("PTD") compensation to relator,
and to enter an order that denies the administrator's motion and reinstates the November
30, 2015 order of the SHO awarding PTD compensation.
No. 16AP-248 13
Findings of Fact:
{¶ 33} 1. On August 1, 2001, relator injured his lower back while employed with
respondent, Wheeling-Pittsburgh Steel Corporation. The injury occurred when relator was
operating a forklift and hit a pothole.
{¶ 34} 2. The industrial claim (No. 01-838445) was initially allowed for "lumbar
strain."
{¶ 35} 3. Following an August 27, 2002 hearing before an SHO, the SHO issued an
order additionally allowing the claim for "disc herniation at L4-5 and L5-S1." Based on a
July 22, 2002 C-84 report from attending physician John J. Moossy, M.D., the SHO
awarded temporary total disability ("TTD") compensation from May 21 through August 27,
2002 and to continue based on medical proof.
{¶ 36} 4. On May 20, 2003, the self-insured employer moved to terminate TTD
compensation on grounds that the allowed conditions in the claim had reached maximum
medical improvement ("MMI").
{¶ 37} 5. Following a June 30, 2003 hearing, a district hearing officer ("DHO")
issued an order terminating TTD compensation effective the hearing date on grounds that
the industrial injury had reached MMI.
{¶ 38} 6. Relator administratively appealed the DHO's order of June 30, 2003.
{¶ 39} 7. Following an August 6, 2003 hearing, an SHO issued an order affirming
the DHO's order of June 30, 2003.
{¶ 40} 8. On June 5, 2006, relator filed the first of three applications for PTD
compensation.
{¶ 41} 9. Following a January 2, 2007 hearing, an SHO issued an order denying the
PTD application. (The SHO's order indicates that the industrial claim had been additionally
allowed for "lumbar radiculopathy; right L3-4 disc herniation.")
{¶ 42} 10. In the January 2, 2007 order, the SHO relied on a report from Dr. Sushil
Sethi who opined that relator is capable of medium level work. Based on Dr. Sethi's report
and two vocational reports, the SHO concluded that relator is able to return to his former
job as a "tractor operator at a steel mill." The SHO also found that relator had "last worked
on 12/06/2001, at which time he was 52 years old."
No. 16AP-248 14
{¶ 43} Alternatively, the SHO's order of January 2, 2007 explains that relator can be
re-employed at jobs other than his former position of employment.
{¶ 44} 11. On September 16, 2013, relator filed his second application for PTD
compensation.
{¶ 45} 12. Following a January 7, 2014 hearing, an SHO issued an order denying the
PTD application.
{¶ 46} 13. In his January 7, 2014 order, the SHO relied on a report from John L.
Dunne, D.O., who opined that relator is currently functioning at the sedentary work level.
The SHO also considered the non-medical factors. The SHO concluded that relator is
capable of performing sustained remunerative employment.
{¶ 47} 14. Thereafter, the industrial claim was additionally allowed for various
psychological conditions. That is, the claim was additionally allowed for "depressive
disorder; generalized anxiety disorder; dysthymic disorder; adjustment disorder with
depressed mood."
{¶ 48} 15. On October 20, 2014, the bureau mailed an order awarding TTD
compensation beginning February 7, 2014 presumably based on a Medco-14 completed by
treating psychologist Lee E. Roach, Ph.D.
{¶ 49} 16. On July 29, 2015, an SHO extended TTD compensation to June 5, 2015
and to continue on submission of medical proof.
{¶ 50} 17. On October 27, 2015, the bureau moved for termination of TTD
compensation based on a report from psychologist Anthony DeRosa, Ph.D.
{¶ 51} 18. Following a November 24, 2015 hearing, a DHO issued an order
terminating TTD compensation effective the hearing date based on the opinion of
Dr. DeRosa that the allowed psychological conditions had reached MMI. Apparently, the
DHO's order was not administratively appealed.
{¶ 52} 19. Earlier, on June 5, 2015, relator was examined at his own request by
psychologist Marian Chatterjee, Ph.D. Dr. Chatterjee examined only for the allowed
psychological conditions of the claim. In a five-page narrative report, Dr. Chatterjee opined
that relator "is permanently and totally disabled" by the allowed psychological conditions.
{¶ 53} 20. On July 8, 2015, relator filed his third PTD application. In support,
relator submitted the report of Dr. Chatterjee.
No. 16AP-248 15
{¶ 54} 21. On August 27, 2015, at the commission's request, relator was examined
by Nicholas Varrati, M.D. Dr. Varrati examined only for the allowed physical conditions of
the claim. In his six-page narrative report, Dr. Varrati opined that relator "would be unable
to sustain remunerative employment."
{¶ 55} 22. On a form captioned "Physical Strength Rating," dated September 9,
2015, Dr. Varrati indicated by his mark "[t]his Injured Worker is incapable of work."
{¶ 56} 23. Following a November 30, 2015 hearing, an SHO mailed an order on
December 2, 2015 granting relator's third application and awarding PTD compensation
beginning September 9, 2015 based on the report of Dr. Varrati and the report of
Dr. Chatterjee. In his order, the SHO initially explained why he was not finding that relator
had voluntarily abandoned the workforce. He then explained the PTD award. The SHO's
order of November 30, 2015 states:
The Administrator's representative raised the issue of
voluntary abandonment of employment, alleging that the
Injured Worker had voluntarily abandoned the entire
workforce for reasons unrelated to this claim as he last worked
in December, 2001 according to his IC-2 application and there
is no evidence on file that the Injured Worker sought work
thereafter or participated in vocational rehabilitation.
However, the Administrator has had multiple opportunities to
raise this issue previously, including a hearing on 01/07/2014
where permanent total disability was denied for medical
reasons. In addition, when the Injured Worker requested
temporary total disability for newly allowed psychological
conditions in 2014, the Administrator issued an order on
10/20/2014 that granted temporary total compensation and
did not raise the issue of voluntary retirement. Hearings were
also held before the Industrial Commission on 06/16/2015
and 07/29/2015 regarding temporary total disability and
again the issue of voluntary retirement was apparently not
raised by the Administrator. In light of the Administrator's
failure to raise this issue despite multiple opportunities to do
so previously, the Staff Hearing Officer finds that the
Administrator has waived this issue.
However, even if the issue of voluntary abandonment of
employment has not been waived, the Staff Hearing Officer
finds that the Administrator has not demonstrated that the
Injured Worker abandoned the entire workforce for reasons
unrelated to this industrial injury. As indicated previously, the
No. 16AP-248 16
Injured Worker stated that he last worked in December, 2001
following the industrial injury in this claim. The Injured
Worker filed for Social Security disability benefits on
05/28/2002 due to the lumbar conditions allowed in this
claim and was awarded Social Security disability benefits
following a hearing on 08/22/2003. Although the standard
for awarding permanent total disability benefits in this claim
and awarding Social Security disability benefits are different,
the Staff Hearing Officer finds that the Injured Worker has
demonstrated that his absence from the workforce was due to
the allowed physical conditions in this claim and not due to a
voluntary decision on his part to retire or otherwise not to
work. Thus, his absence from the workforce cannot be
considered a "retirement", nor can it be considered voluntary.
This conclusion is reinforced by the numerous MEDCO-14
Physician's Reports of Work Ability and C-84 Request for
Temporary Total Compensation reports on file from the
Injured Worker's treating physicians for the allowed physical
conditions and newly allowed psychological conditions that
indicate that he was disabled from all employment due to
these conditions. In this respect, the facts of this claim are not
similar to those in State ex rel. Kelsey Hayes Co. v. Grashel,
138 Ohio St. 3d 297, 2013-Ohio-4959 that describes the
standard for a finding of voluntary abandonment of the
workforce. Accordingly, the Staff Hearing Officer rejects the
argument that the Injured Worker had voluntarily abandoned
the entire workforce and is therefore precluded from receiving
permanent total disability benefits.
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 is granted.
Permanent total disability compensation is awarded from
09/09/2015 (less any compensation that previously may have
been awarded over the same period), and to continue without
suspension unless future facts or circumstances should
warrant the stopping of the award. Such payments are to be
made in accordance with R.C. 4123.58(A).
Permanent and total disability compensation is awarded from
09/09/2015 for the reason that this is the date of the report of
Nicholas Varrati, M.D., upon which the Staff Hearing Officer
relies.
***
No. 16AP-248 17
Based upon the reports of Nicholas Varrati, M.D., and Marian
Chatterjee, Ph.D., it is found that the Injured Worker is unable
to perform any sustained remunerative employment solely as
a result of the medical impairment caused by the allowed
conditions. Therefore, pursuant to State ex rel. Speelman v.
Indus. Comm. (1992), 73 Ohio App. 3d 757, it is not necessary
to discuss or analyze the Injured Worker's non-medical
disability factors.
Nicholas Varrati, M.D., examined the Injured Worker on
08/27/2015 on behalf of the Industrial Commission regarding
the allowed physical conditions in this claim. Dr. Varrati
found that the Injured Worker demonstrated tenderness to
palpation over the L3-S1 areas of the lumber spine, had
decreased sensation over the lower left leg, had significantly
decreased range of motion of the lumbar spine, and
demonstrated positive bilateral straight leg raising tests. He
found that the allowed physical conditions have reached
maximum medical improvement and opined an 18% whole
person impairment due to this conditions [sic]. Dr. Varrati
concluded that the Injured Worker is incapable of work due to
the allowed physical conditions in this claim.
Marian Chatterjee, Ph.D., issued a report dated 06/05/2015
that evaluated the Injured Worker's allowed psychological
conditions. Dr. Chatterjee found a 31% whole person
impairment due to the allowed psychological conditions.
Dr. Chatterjee found a mild, Class II impairment of activities
of daily living, but moderate, Class III impairments of social
functioning and concentration, persistence and pace, along
with a moderate to marked, Class III to IV impairment of
adaptation to stressful circumstances. Dr. Chatterjee
concluded that the allowed psychological conditions render
the Injured Worker permanently and totally disabled.
The Staff Hearing Officer finds the opinions of Dr. Varrati and
Dr. Chatterjee persuasive.
{¶ 57} 24. At the November 30, 2015 hearing, relator submitted a copy of a decision
of an administrative law judge of the Social Security Administration ("SSA") that
determined that relator is "entitled to a period of disability beginning December 6, 2001,
and to disability insurance benefits under Sections 216(i) and 223, respectively, of the
Social Security Act."
No. 16AP-248 18
{¶ 58} Dated November 18, 2003, the decision of the administrative law judge
presents the following findings:
After consideration of the entire record, the Administrative
Law Judge makes the following findings:
[One] The claimant has not engaged in any substantial
gainful activity since the disability onset date.
[Two] The claimant's impairments which are considered to be
"severe" under the Social Security Act are as follows: lumbar
disc herniations with foraminal stenosis and lumbar
radiculopathy.
[Three] The claimant's impairments do not, singly or in
combination, meet or equal in severity the appropriate
medical findings contained in 20 CFR Part 404, Appendix 1 to
Subpart P (Listing of Impairments).
[Four] The claimant's allegations are credible.
[Five] The claimant has the residual functional capacity to do
the following: He can perform the exertional demands of no
more than sedentary work, or work which is generally
performed while sitting and does not require lifting in excess
of ten pounds.
[Six] The claimant is unable to perform his past relevant work.
[Seven] The claimant was 52 years old (closely approaching
advanced age, 50 - 54) on the date his disability began. The
claimant has a high school education.
[Eight] The claimant has unskilled past relevant work.
[Nine] Based upon the claimant's residual functional capacity,
and vocational factors, there are no jobs existing in significant
numbers which he can perform. This finding is based upon the
following: medical - vocational rule 201.09.
[Ten] The claimant met and meets the disability insured
status requirements of the Social Security Act on the date
disability began, and through December 31, 2006.
[Eleven] The claimant has been under a disability as defined
by the Social Security Act and Regulations since December 6,
2001.
No. 16AP-248 19
(Emphasis sic.)
{¶ 59} 25. On December 15, 2015, the administrator moved for the commission's
exercise of continuing jurisdiction over the SHO's order of November 30, 2015.
{¶ 60} 26. On January 9, 2016, with one member in recusal, the commission mailed
an interlocutory order, stating:
It is the finding of the Industrial Commission the
Administrator has presented evidence of sufficient probative
value to warrant adjudication of the Request for
Reconsideration regarding the alleged presence of a clear
mistake of fact in the order from which reconsideration is
sought and a clear mistake of law of such character that
remedial action would clearly follow.
Specifically, it is alleged the Staff Hearing Officer mistakenly
determined the Administrator waived the issue of voluntary
abandonment and mistakenly concluded the Injured Worker
had not voluntarily abandoned the workforce.
Based on those findings, the Industrial Commission directs
the Administrator's Request for Reconsideration, filed
12/15/2015, be set for hearing to determine whether the
alleged mistakes of fact and law as noted herein are sufficient
for the Industrial Commission to invoke its continuing
jurisdiction.
In the interest of administrative economy and for the
convenience of the parties, after the hearing on the question
of continuing jurisdiction, the Industrial Commission will
take the matter under advisement and proceed to hear the
merits of the underlying issue(s). The Industrial Commission
will thereafter issue an order on the matter of continuing
jurisdiction under R.C. 4123.52. If authority to invoke
continuing jurisdiction is found, the Industrial Commission
will address the merits of the underlying issue(s).
{¶ 61} 27. Following a February 25, 2016 hearing, the commission (with one
member in recusal) issued an order exercising continuing jurisdiction over the SHO's order
of November 30, 2015. The commission's February 25, 2016 order vacates the SHO's order
of November 30, 2015 (mailed December 2, 2015) and determines that relator is ineligible
No. 16AP-248 20
for PTD compensation because he voluntarily abandoned the workforce. The commission's
February 25, 2016 order explains:
[I]t is the finding of the Industrial Commission the
Administrator has met the burden of proving the Staff
Hearing Officer order, issued 12/02/2015, contains a clear
mistake of law of such character remedial action would clearly
follow. Specifically, the Staff Hearing Officer erred in finding
the Administrator waived the affirmative defense of voluntary
abandonment by not asserting it in prior proceedings before
the Bureau of Workers' Compensation and the Commission.
Therefore, the Commission exercises continuing jurisdiction
pursuant to R.C. 4123.52 * * *.
***
It is the decision of the Commission to deny the Injured
Worker's IC-2 Application for Compensation for Permanent
Total Disability, filed 07/08/2015.
Historically, two prior IC-2 Applications have been
adjudicated by the Commission's Staff Hearing Officers. The
first, filed 06/05/2006, was denied by the Staff Hearing
Officer order, issued 01/13/2007. In denying the Application,
the Staff Hearing Officer found the Injured Worker remained
capable of medium-duty work, including his former position
of employment. The Staff Hearing Officer noted although the
Injured Worker was within the normal age guidelines for
vocational rehabilitation when he last worked at age 52, no
vocational rehabilitation had been attempted based upon the
Injured Worker's testimony. The second Application, filed
09/16/2013, was denied by Staff Hearing Officer order, issued
01/11/2014. The Staff Hearing Officer found the Injured
Worker vocationally capable of sedentary work.
Thereafter, the claim was additionally allowed to include
several psychological conditions. Previously temporary total
disability compensation, based upon the physical conditions
then allowed, had last been paid through 06/30/2003, and
terminated based upon a finding of maximum medical
improvement. The order of the Administrator, issued
10/20/2014, reinstated temporary total disability
compensation effective 02/07/2014, based upon the
psychological conditions, and payment continued through
08/07/2014. Temporary total disability compensation from
08/08/2014 forward, also based upon the psychological
conditions, was awarded by the order of the Staff Hearing
No. 16AP-248 21
Officer, issued 07/31/2015. By order of the District Hearing
Officer, issued 11/27/2015, the psychological conditions were
found to have reached maximum medical improvement, and
payment of temporary total disability compensation was
terminated effective 11/24/2015. In a report dated
09/09/2015, from an examination on 08/27/2015, Nicholas
Varrati, M.D., a specialist examining the Injured Worker on
the Commission's behalf regarding the allowed physical
conditions and the permanent total impairment issue, opined
the impairment arising from the allowed physical conditions
permanently rendered the Injured Worker incapable of any
work activity.
The Commission finds the Injured Worker is ineligible for
compensation for permanent total disability because he
voluntarily removed himself from the workforce. State ex rel.
Kelsey Hayes Co. v. Grashel, 138 Ohio St. 3d 297, 2013-Ohio-
4959, 6 N.E.3d 1128. The Commission finds the respective
orders of the Staff Hearing Officers, issued 01/13/2007 and
01/11/2014, found the Injured Worker capable of medium-
duty work, including his former position of employment, and
sedentary work. Notwithstanding those determinations of his
residual functional capacities, the Commission finds the
Injured Worker made no attempt to reenter the work force,
either by seeking work within his skill set or by pursuing
vocational rehabilitation and retraining between 06/30/2003
and 02/07/2014, the dates temporary total disability
compensation was terminated and reinstated. Although
temporary total disability was reinstated effective
02/07/2014, and Dr. Varrati has recently opined the allowed
physical conditions now render the Injured Worker incapable
of any work activity, the Commission finds the Injured
Worker abandoned the work force prior to those
determinations. Therefore, the Commission finds the Injured
Worker is precluded from eligibility for permanent total
disability compensation. State ex rel. Baker Material
Handling Corp. v. Indus. Comm., 69 Ohio St. 3d 202, 631
N.E.2d 138 (1994), paragraph two of the syllabus.
{¶ 62} 28. On March 31, 2016, relator, Paul A. Digiacinto, filed this mandamus
action.
Conclusions of Law:
{¶ 63} Two issues are presented: (1) whether the finding in the SHO's order of
November 30, 2015 that the administrator is barred from challenging eligibility for PTD
No. 16AP-248 22
compensation on grounds of workforce abandonment constitutes a clear mistake of law on
which the commission can properly exercise its continuing jurisdiction, and (2) assuming
the presence of a clear mistake of law on which the commission properly exercised its
continuing jurisdiction, did the commission abuse its discretion by failing to find that the
decision of the SSA administrative law judge excused relator from searching for work or
pursuing vocational rehabilitation, thus preserving eligibility for PTD compensation?
{¶ 64} The magistrate finds: (1) the finding in the SHO's order of November 30,
2015 that the administrator is barred from challenging eligibility for PTD compensation is
a clear mistake of law, and (2) the commission did not abuse its discretion by failing to find
that the decision of the SSA administrative law judge excused relator from searching for
work or pursuing vocational rehabilitation.
First Issue
{¶ 65} Workforce abandonment can bar a request for TTD compensation. State ex
rel. Pierron v. Indus. Comm., 120 Ohio St. 3d 40, 2008-Ohio-5245. It can also bar a request
for PTD compensation. State ex rel. Black v. Indus. Comm., 137 Ohio St. 3d 75, 2013-Ohio-
4550.
{¶ 66} According to the SHO's order of November 30 2015, the administrator had
multiple opportunities to raise the issue of workforce abandonment prior to relator's third
application for PTD compensation filed July 8, 2015.
{¶ 67} As further pointed out by the SHO's order of November 30, 2015, at the
January 7, 2014 hearing on relator's second application for PTD compensation, the defense
of voluntary workforce abandonment was not raised. That is, in the SHO's order of January
7, 2014 adjudicating relator's second PTD application, there is no indication that the
administrator raised the issue of workforce abandonment.
{¶ 68} As further pointed out by the SHO's order of November 30, 2015, on October
20, 2014, the bureau mailed an order awarding TTD compensation beginning February 7,
2014 based on a report from psychologist Lee E. Roach, Ph.D. Obviously, the administrator
did not raise the issue of workforce abandonment when the October 20, 2014 award of TTD
compensation issued.
{¶ 69} As further pointed out by the SHO's order of November 30, 2015, following a
July 29, 2015 hearing, another SHO extended TTD compensation to June 5, 2015 and to
No. 16AP-248 23
continue on submission of medical proof. There is no indication in the SHO's order of July
29, 2015 that the administrator raised the issue of workforce abandonment.
{¶ 70} Based on the failure of the administrator to raise the issue of workforce
abandonment prior to the adjudication of the third PTD application with respect to the
several instances discussed above, the SHO's order of November 30, 2015 concludes that
the administrator waived the issue and was therefore precluded from raising the defense to
relator's third PTD application.
{¶ 71} As earlier noted, the commission's order of February 25, 2016 determined
that the conclusion in the SHO's order of November 30, 2015 that the administrator had
waived the issue is a clear mistake of law.
{¶ 72} Here, without citation to authority, relator asserts that the SHO's order of
November 30, 2015 does not contain a clear mistake of law and that the SHO's order of
November 30, 2015 is correct in determining that the administrator waived the defense of
voluntary workforce abandonment prior to the filing and adjudication of the third PTD
application.
{¶ 73} "Waiver is the voluntary surrender or relinquishment of a known legal right
by agreement, or a failure to act upon a right plainly indicating an intention not to claim
such right." Meyer v. Chagrin Falls Exempted Village School Dist. Bd. of Edn., 9 Ohio
App.3d 320, 324 (8th Dist.1983). "[T]he party asserting the defense of waiver bears the
burden to prove it by a preponderance of the evidence, by showing 'a clear, unequivocal,
decisive act of the party against whom the waiver is asserted, showing such a purpose or
acts amounting to an estoppel on his part.' " Fultz & Thatcher v. Burrows Group Corp.,
12th Dist. No. CA2005-11-126, 2006-Ohio-7041, ¶ 42, quoting White Co. v. Canton Transp.
Co., 131 Ohio St. 190 (1936), paragraph four of the syllabus.
{¶ 74} It is clear that relator failed to meet his burden of proving that the
administrator waived his legal right to assert the defense of voluntary workforce
abandonment.
{¶ 75} Continuing jurisdiction is not unlimited. Its prerequisites are (1) new and
changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, and (5)
error by inferior tribunal. State ex rel. Royal v. Indus. Comm., 95 Ohio St. 3d 97, 99 (2002).
No. 16AP-248 24
{¶ 76} Based on the above analysis, the magistrate concludes that the commission
properly determined that the SHO's order of November 30, 2015 contained a clear mistake
of law in finding that the administrator had waived his legal right to assert the defense of
workforce abandonment to relator's third application for PTD compensation.
Second Issue
{¶ 77} The second issue is whether the commission abused its discretion by failing
to find that the decision of the SSA administrative law judge excused relator from searching
for work or pursuing vocational rehabilitation, thus preserving eligibility for PTD
compensation.
{¶ 78} To begin, it can be observed that the commission's order of February 25, 2016
fails to even mention the decision of the administrative law judge. Clearly, the failure to
mention the decision of the administrative law judge is not an abuse of discretion.
{¶ 79} In State ex rel. Lovell v. Indus. Comm., 74 Ohio St. 3d 250, 252 (1996), the
Supreme Court of Ohio succinctly summarized law applicable here:
State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio
St.3d 481, 6 Ohio B. Rep. 531, 453 N.E.2d 721, directed the
commission to cite in its orders the evidence on which it relied
to reach its decision. Reiterating the concept of reliance, State
ex rel. DeMint v. Indus. Comm. (1990), 49 Ohio St. 3d 19, 20,
550 N.E.2d 174, 176, held:
"Mitchell mandates citation of only that evidence relied on. It
does not require enumeration of all evidence considered."
(Emphasis original.)
Therefore, because the commission does not have to list the
evidence considered, the presumption of regularity that
attaches to commission proceedings (State ex rel. Brady v.
Indus. Comm. [1990], 28 Ohio St. 3d 241, 28 Ohio B. Rep. 322,
503 N.E.2d 173) gives rise to a second presumption--that the
commission indeed considered all the evidence before it. That
presumption, however, is not irrebuttable as Fultz
demonstrates.
Lovell at 252.
{¶ 80} Thus, the presumption here is that the commission considered the decision
of the administrative law judge but rejected it as being unpersuasive as to the issue before
the commission.
No. 16AP-248 25
{¶ 81} Again, relator submitted the decision of the administrative law judge at the
November 30, 2015 hearing on the PTD application in order to show that he should be
excused from searching for work or pursuing vocational rehabilitation, thus preserving
eligibility for PTD compensation. As the commission points out in this action, reliance on
the decision of the administrative law judge would have been problematic for the
commission because the medical impairments underlying the decision include a non-
allowed condition. That is, the SSA decision is premised on "lumbar disc herniations with
foraminal stenosis and lumbar radiculopathy." The industrial claim is not allowed for
foraminal stenosis.
{¶ 82} Non-allowed medical conditions cannot be used to advance or defeat a
request for PTD compensation. State ex rel. Waddle v. Indus. Comm., 67 Ohio St. 3d 452,
454 (1993). However, the mere presence of non-allowed conditions does not automatically
bar PTD compensation. Id.
{¶ 83} The claimant must meet his or her burden of showing that an allowed
condition "independently" caused the disability. State ex rel. Bradley v. Indus. Comm., 77
Ohio St. 3d 239, 242 (1997). The allowed condition cannot combine with a non-allowed
condition to produce compensation. Id.
{¶ 84} Here, relator cannot use a non-allowed condition, i.e., foraminal stenosis, to
show that he was excused from searching for work or pursuing vocational rehabilitation.
While the commission was silent on this point in its February 25, 2016 order, it is clear
nevertheless that the decision of the administrative law judge cannot be used to advance or
defeat relator's third PTD application.
{¶ 85} 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
No. 16AP-248 26
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).