State ex rel. Barnett v. Indus. Comm.

[Cite as State ex rel. Barnett v. Indus. Comm., 2015-Ohio-3898.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Betty J. Barnett, :
Relator, :
v. : No. 14AP-628
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Columbus Schools[,] Columbus Board
of Education, :
Respondents. :
D E C I S I O N
Rendered on September 24, 2015
Connor, Evans & Hafenstein, LLP, Katie W. Kimmet,
Kenneth S. Hafenstein and Nicole E. Rager, for relator.
Michael DeWine, Attorney General, and Natalie J. Tackett,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
HORTON, J.
{¶ 1} Relator, Betty J. Barnett, brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying her permanent total disability ("PTD") compensation, and to
order the commission to enter an order awarding her PTD compensation.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate, who has now rendered a decision and
recommendation that includes findings of fact and conclusions of law and is appended to
this decision. The magistrate concluded that the Staff Hearing Officer's ("SHO") incorrect
statement regarding relator's attempts to obtain vocational training did not require this
No. 14AP-628 2
court to issue a writ of mandamus, and that the commission did not abuse its discretion
by considering relator's work history. Relator has filed objections to the magistrate's
decision, and the matter is now before us for our independent review.
{¶ 3} As reflected in the facts given in the magistrate's decision, relator was
involved in a work-related injury on August 19, 2011, when she slipped and fell down the
stairs of the school bus she was driving for her employer. Relator's industrial claim was
allowed for the following conditions: fracture lumbar vertebra closed; lumbar disc
protrusion L2-L3; substantial aggravation of pre-existing lumbar spinal stenosis L2-L3;
lumbar facet arthropathy L4-L5; substantial aggravation of pre-existing lumbar
spondylolisthesis L4-L5; substantial aggravation of pre-existing facet arthropathy at L2-
L3.
{¶ 4} Following her injury, relator was referred to the Ohio Bureau of Workers'
Compensation ("bureau") vocational rehabilitation program. Relator's managed care
organization ("MCO") vocational rehabilitation case specialist informed relator on
August 26, 2013, that she was not a feasible candidate for vocational rehabilitation
services. Relator appealed the MCO's determination, and on September 19, 2013, the
bureau upheld the closure of relator's vocational rehabilitation for non-feasibility. Relator
appealed the bureau's order and, following a hearing, a district hearing officer ("DHO")
issued an order on October 22, 2013 denying relator's vocational rehabilitation referral
request. The DHO found it improbable that relator would return to work as a result of
vocational rehabilitation services, and thus concluded that relator was not a feasible
candidate for such services.
{¶ 5} Relator filed an application for PTD compensation on December 20, 2013.
Following a July 18, 2014 hearing, the SHO issued an order denying relator's PTD
application. The SHO relied on an April 1, 2014 report from James J. Powers, M.D., which
concluded that relator had a 15 percent whole body impairment from her industrial injury
and that she was capable of performing sedentary work.
{¶ 6} The SHO addressed the nonmedical factors, including relator's age of 64,
her high school education, and her work history. The SHO noted that relator had
experience working as a store manager for a carry-out, a school bus driver, a cook, and
doing piece work assembling electric parts. The SHO thus concluded that relator had "a
No. 14AP-628 3
varied work history with some of that work in the light and possibly sedentary categories
(sit-down piece work)," and further concluded that "[t]he ability to follow directions as a
cook and a bus driver, the ability to work with the public as a bus driver, and the
responsibilities involved in managing a store all suggest transferrable work skills. The
[SHO] therefore concludes the Injured Worker's vocational history is a vocational asset."
(July 18, 2014 SHO Decision.) The SHO also stated that, while relator had "not
participated in a rehabilitation program or indicated any effort to obtain training," the
DHO's October 22, 2013 order denying relator vocational rehabilitation services did not
"necessitate a finding of permanent total disability." (July 18, 2014 SHO Decision.)
{¶ 7} Relator has filed the following objections to the magistrate's decision:
(1) The Magistrate erred by finding there was no abuse of
discretion on the part of the Commission when it incorrectly
determined Barnett never made "any effort to obtain training
to positions consistent with her restrictions" and failed to
accept the prior findings from the Commission itself on the
issue of vocational rehabilitation.
(2) The Magistrate erred by finding no abuse of discretion in
regards to the Commission's failure to comply with [State ex
rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991)] as well as
its failure [to] identify any "transferrable skills" when
conducting its nonmedical analysis.
{¶ 8} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the
objected matters "to ascertain that the magistrate has properly determined the factual
issues and appropriately applied the law." A relator seeking a writ of mandamus must
establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon
respondent to perform the act requested, and (3) that relator has no plain and adequate
remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police &
Firemen's Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting
State ex rel. Consolidated Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear
legal right exists where the [commission] abuses its discretion by entering an order which
is not supported by 'some evidence.' " Id.{¶ 9} This court will not determine that the commission abused its discretion
when there is some evidence in the record to support the commission's finding. State ex
rel. Rouch v. Eagle Tool & Mach. Co., 26 Ohio St.3d 197, 198 (1986). The some evidence
No. 14AP-628 4
standard "reflects the established principle that the commission is in the best position to
determine the weight and credibility of the evidence and disputed facts." State ex rel.
Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing State ex
rel. Pavis v. Gen. Motors Corp., B.O.C. Group, 65 Ohio St.3d 30, 33 (1992).
{¶ 10} The relevant inquiry in a determination of PTD is the claimant's ability to
do any sustained remunerative employment. State ex rel. Domjancic v. Indus. Comm.,
69 Ohio St.3d 693 (1994); Ohio Adm.Code 4121-3-34(B)(1). An individual can engage in
sustained remunerative employment if they can perform sedentary work. Dr. Powers'
April 1, 2014 report found relator capable of performing sedentary work. Regarding the
vocational factors, the SHO noted that relator's age alone was not a barrier to re-
employment, that her high school education and ability to read, write, and perform
basic math were assets to reemployment, and that her work history was a vocational
asset. It is well-settled that the commission is the expert on the vocational or
nonmedical factors in a PTD determination. State ex rel. Jackson v. Indus. Comm., 79
Ohio St.3d 266, 270-71 (1997). The SHO thus concluded that, given relator's "education
and work history and the finding that the Injured Worker is capable of sedentary work,"
relator was not entitled to PTD compensation. (July 18, 2014 SHO Decision.)
{¶ 11} Relator's objections to the magistrate's decision essentially reargue the
issues which the magistrate previously considered and rejected. Relator first contends
that the magistrate erred by finding that the SHO's incorrect statement regarding relator's
willingness to participate in vocational rehabilitation did not require this court to issue a
writ of mandamus. The magistrate acknowledged that the SHO's statement regarding
relator's unwillingness to participate in vocational rehabilitation was incorrect. However,
after reviewing pertinent case law, the magistrate concluded that the SHO's incorrect
statement could be easily separated from the remainder of the nonmedical analysis.
Indeed, no other paragraph in the SHO's order contains any discussion of relator's efforts
towards vocational rehabilitation, and the SHO's denial of PTD was not based on relator's
failure to participate in vocational rehabilitation. Rather, the SHO relied on Dr. Powers'
medical report and the SHO's own analysis of the nonmedical factors to conclude that
relator was capable of performing sustained remunerative employment.
No. 14AP-628 5
{¶ 12} We find no error in the magistrate's conclusion that the SHO's incorrect
statement regarding relator's willingness to participate in vocational rehabilitation was
severable from the rest of the SHO's order, and thus did not necessitate the issuance of a
writ of mandamus. See State ex rel. Retar v. Indus. Comm., 10th Dist. No. 08AP-856,
2009-Ohio-5669, ¶ 37-39; Domjancic at 695. Relator's first objection is overruled.
{¶ 13} Relator's second objection asserts that the magistrate erred by concluding
that the SHO's order did not violate State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203(1991). Relator contends that the SHO's order violates Noll, as the SHO concluded that
relator's varied work history suggested transferable skills, but failed to particularly
identify those transferrable skills. The magistrate concluded that, even if some of relator's
skills were arguably not transferable work skills, as they were skills which would have pre-
existed the job being performed, the commission did not abuse its discretion by
articulating the abilities relator had demonstrated through her work history.
{¶ 14} In Noll, the court held that in each commission order granting or denying
benefits to a claimant, the commission "must specifically state what evidence has been
relied upon, and briefly explain the reasoning for its decision. An order of the commission
should make it readily apparent from the four corners of the decision that there is some
evidence supporting it." Id. at 206. See also State ex rel. LeVan v. Young's Shell Service,
80 Ohio St.3d 55, 57 (1997). Notably, however, while the "absence of transferable skills is
germane" to the inquiry into a claimant's current and future abilities to perform sustained
remunerative employment, the "lack of transferable skills also does not mandate a
permanent total disability compensation award." State ex rel. Ewart v. Indus. Comm., 76
Ohio St.3d 139, 142 (1996). See also Ohio Adm.Code 4121-3-34(B)(3)(c)(iv)-(v). As such,
the SHO's failure to particularly identify transferable skills does not entitle relator to an
award of PTD. The SHO did not abuse its discretion in viewing relator's work history as a
vocational asset. We find no error in the magistrate's decision. Relator's second objection
is overruled.
{¶ 15} Following independent review, pursuant to Civ.R. 53, we find the magistrate
has properly determined the pertinent facts and applied the salient law to them.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
No. 14AP-628 6
and conclusions of law contained therein. In accordance with the magistrate's decision,
we deny the request for a writ of mandamus.
Objections overruled; writ denied.
BROWN, P.J. and KLATT, J., concur.
_________________
No. 14AP-628 7
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Betty J. Barnett, :
Relator, :
v. : No. 14AP-628
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Columbus Schools, Columbus Board
of Education, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on April 30, 2015
Connor, Evans & Hafenstein, LLP, Katie W. Kimmet,
Kenneth S. Hafenstein and Nicole E. Rager, for relator.
Michael DeWine, Attorney General, and Natalie J. Tackett,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 16} In this original action, relator, Betty J. Barnett, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying her permanent total disability ("PTD") compensation, and to
enter an order awarding the compensation.
Findings of Fact:
No. 14AP-628 8
{¶ 17} 1. On August 19, 2011, relator injured her lower back while employed as a
bus driver for respondent Columbus Schools, Columbus Board of Education. On that
date, relator slipped and fell down the bus stairs, landing on her tailbone.
{¶ 18} 2. The industrial claim (No. 11-345090) is allowed for:
Fracture lumbar vertebra closed; lumbar disc protrusion L2-
L3; substantial aggravation of pre-existing lumbar spinal
stenosis L2-L3; lumbar facet arthropathy L4-5; substantial
aggravation of pre-existing lumbar spondylolisthesis L4-5;
substantial aggravation of pre-existing facet arthropathy at
L2-L3.
{¶ 19} 3. Relator has not worked since the date of her industrial injury. She began
receiving temporary total disability ("TTD") compensation.
{¶ 20} 4. On July 25, 2013, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), relator was examined by Denise L. Davis, M.D. In her four-
page narrative report, Dr. Davis opined:
In my medical opinion, there currently are no additional
diagnostic or treatment services consistent with nationally
accepted treatment guidelines such as The Official Disability
Guidelines that should be considered. It is my medical
opinion that there is no further treatment that will afford her
a significant fundamental, functional, or physiological
change.
***
In my medical opinion, the injured worker is not capable of
any level of work because she has too much pain and
dysfunction to tolerate even sedentary level.
***
In my medical opinion, the injured worker is MMI and a re-
examination is not necessary.
***
Vocational rehabilitation is not appropriate from a medical
perspective because, in my medical opinion, the injured
worker is MMI.
No. 14AP-628 9
{¶ 21} 5. On August 1, 2013, citing the report of Dr. Davis, the bureau moved to
terminate TTD compensation on grounds that the industrial injury has reached maximum
medical improvement ("MMI").
{¶ 22} 6. On August 22, 2013, treating physician Steven Tanzer, D.O., completed a
form captioned "Physician's Report of Work Ability." The bureau designates the form as
the Medco-14.
{¶ 23} In response to a preprinted query, Dr. Tanzer indicated by his mark that the
industrial injury had reached MMI.
{¶ 24} The Medco-14 also asks the treating physician: "Is the injured worker a
candidate for a vocational rehabilitation services focusing on return to work?" Thereafter,
the treating physician is invited to mark either a "yes" or "no" box. Dr. Tanzer failed to
mark either box.
{¶ 25} The Medco-14 asks the treating physician: "How many total hours is this
injured worker potentially able to work?" In the space provided, Dr. Tanzer entered a
zero.
{¶ 26} The Medco-14 also asks the treating physician to list the work-related
conditions and then asks: "Is the condition causing temporary total disability?" In
response, Dr. Tanzer marked the "yes" box indicating temporary total disability.
{¶ 27} 7. Following an August 23, 2013 hearing, a district hearing officer ("DHO")
issued an order terminating TTD compensation effective the date of the hearing based
upon a finding that the industrial injury has reached MMI. The DHO's order states
reliance upon the report of Dr. Davis.
{¶ 28} 8. Relator filed an administrative appeal from the DHO's order of
August 23, 2013.
{¶ 29} 9. On October 2, 2013, a staff hearing officer ("SHO") held a hearing on
relator's administrative appeal of the DHO's order of August 23, 2013. Thereafter, the
SHO issued an order stating that, prior to the hearing, relator had withdrawn her appeal
and therefore the DHO's order of August 23, 2013 "remains in full force and effect."
{¶ 30} 10. Earlier, there was a referral to the bureau's vocational rehabilitation
program.
No. 14AP-628 10
{¶ 31} 11. On August 26, 2013, the bureau mailed an order: "You are eligible for
vocational rehabilitation because you are receiving compensation. Your MCO will let you
know if they are referring you to it."
{¶ 32} 12. By letter dated August 26, 2013, from a MCO vocational rehabilitation
case specialist, relator was informed:
You have been referred for consideration of vocational
rehabilitation services and our records indicate that you have
been determined eligible for these services by BWC. As your
managed care organization, we have reviewed your file and
determined that you are currently not ready for vocational
rehabilitation services at this time for the following reason:
You are not feasible, as the current lack of
employment is not due to your allowed diagnosis. As
such, services through the Ohio BWC are neither
necessary nor appropriate at this time.
Once we have received a medical update indicating that this
has been resolved, your file will again be reviewed to be sure
that you are still eligible for vocational rehabilitation services
and that you are capable of participating in such services.
You may be contacted at that time to determine your
interest.
(Emphasis sic.)
{¶ 33} 13. Relator, through counsel, administratively appealed the August 26,
2013 decision of the MCO that determined that relator is not feasible for vocational
rehabilitation.
{¶ 34} 14. Thereafter, a MCO vocational rehabilitation specialist, Ron Janetzke,
wrote:
CareWorks has determined that the closure cannot be
overturned. The [Injured Worker] was found to be MMI per
the DHO hearing on 8/23/13. The [physician of record]
submitted a Medco-14 dated 8/22/13 which has documented
that the [Injured Worker] remains temporarily totally
disabled and is MMI as of 7/15/13. The progress note from
Khaled Amr, M.D. (pain management provider) documents
that the [Injured Worker] continues to suffer from chronic
severe back pain with numbness and tingling in the lower
extremities and has a pain level of 6/10. Based on this
information there are no VocRehab services that would be
No. 14AP-628 11
appropriate to offer the [Injured Worker]. The [Injured
Worker] is not a feasible candidate.
{¶ 35} 15. On September 18, 2013, John Finch, Ph.D., wrote for the MCO:
In this reviewer's opinion, the closure of this case for non
feasibility should be upheld.
Rationale:
[One] The above referenced injured worker's rehabilitation
case was determined to be non-feasible on 8/26/13 due to
current lack of employment not due to allowed diagnosis.
Services through Ohio BWC are neither necessary nor
appropriate at this time.
[Two] The [attorney of record] appealed the determination
on 9/4/13.
[Three] Review of the file indicates the claimant was
determined MMI per DHO hearing on 8/23/13. [physician of
record] submitted Medco-14 on 8/22/13 with injured worker
temporarily totally disabled as of 7/15/13. Progress note
from Dr. Amr on 9/4/13 says claimant continues to have
significant chronic back pain with tingling and numbness to
lower extremities. Information also indicated claimant has
retired from employer in August, 2011.
[Four] Claimant is not released to [return to work] per
Medco-14 as required by BWC Chapter 4. Claimant also is
dealing with severe chronic pain. Claimant has also retired
from employer, indicating lack of employment is not due to
allowed claim. In my opinion the correct non-feasibility
decision was made in this case, consistent with BWC Chapter
4 guidelines.
{¶ 36} 16. On September 19, 2013, the bureau mailed the following decision:
Reconsideration of MCO decision dated 8/26/13 for non-
feasibility of vocational rehabilitation services.
BWC disallows the treatment/services.
The closure of vocational rehabilitation for non-feasibility
should be upheld, per peer review of John Finch, Ph.D., CRC,
LPC dated 9/18/13. Claimant is not released to return to
work per Medco-14 as required by BWC Chapter 4. Claimant
No. 14AP-628 12
also is dealing with severe chronic pain. Claimant has also
retired from employer, indicating lack of employment is not
due to allowed claim. The correct non-feasibility decision
was made in this case, consistent with BWC Chapter 4
guidelines.
BWC based this decision on consideration of all submitted
medical documentation, the allowed conditions in the claim,
approved treatment guidelines, BWC policy, and workers'
compensation law, including, but not limited to, the Miller
criteria (Ohio Administrative Code 4123-6-16.2(B)(1)
through (B)(3)), as follows:
BWC Chapter 4 Guidelines, OAC 4123-18-02 and OAC 4123-
18-05.
{¶ 37} 17. On September 25, 2013, relator administratively appealed the
September 19, 2013 order of the bureau.
{¶ 38} 18. Following an October 18, 2013 hearing, a DHO mailed an order on
October 22, 2013, stating:
The order of the Administrator, issued 09/19/2013, is
modified.
It is the order of the District Hearing Officer that the Injured
Worker's vocational rehabilitation referral request filed
08/06/2013 is denied.
The District Hearing Officer hereby affirms the Bureau of
Workers' Compensation's decision to close the Injured
Worker's vocational rehabilitation file, although the District
Hearing Officer does not rely on all the same grounds relied
upon in the Bureau of Workers' Compensation's order. The
District Hearing Officer finds that the Injured Worker is not
a feasible candidate for Vocational Rehabilitation Services at
this time because the District Hearing Officer is not
persuaded that there is a reasonable probability that the
Injured Worker will benefit from Vocational Rehabilitation
Services and return to work as a result of those services.
This order is based on Ohio Administrative Code Section
4123-18-03, and the rationale contained in the 07/25/2013
report of Dr. Davis, Mr. Finch's 09/18/2013 report and Mr.
Janetzke's 09/12/2013 report (however, the District Hearing
Officer does not rely on the alleged ground of the Injured
Worker's retirement, based on the Injured Worker's
No. 14AP-628 13
statement at hearing that what she is receiving is School
Employees Retirement System disability).
{¶ 39} 19. Apparently, the October 18, 2013 order of the DHO was not
administratively appealed.
{¶ 40} 20. On October 22, 2013, Dr. Tanzer wrote:
I feel that this patient should be considered permanently and
totally disabled due to the above claim injury, and that she is
unable to return to gainful employment with her back injury,
as agreed to by both independent evaluators as well as the
Bureau's evaluator, feeling that this patient is unable to
return to work; any type of gainful employment due to this
injury. She suffers from chronic pain and disability
secondary to it. She has altered functions of daily living. She
has to require chronic pain medicine for use and functioning.
This patient, due to her age and physical condition, is really
unable to return to any type of gainful employment.
{¶ 41} 21. On December 20, 2013, relator filed an application for PTD
compensation.
{¶ 42} 22. On February 19, 2014, at the employer's request, relator was examined
by Rohn T. Kennington, M.D. In his four-page narrative report, Dr. Kennington opined:
It is my medical opinion, based on a reasonable degree of
medical certainty, and on the allowed conditions of the claim
(Claim#11-345090), that Mrs. Barnett is not permanently
and totally disabled * * * while she is not capable of returning
to her former employment as a bus driver for the Columbus
city schools, this should not preclude her from remunerative
employment in a light capacity job with the above listed
restrictions.
{¶ 43} 23. On March 25, 2014, at the commission's request, relator was examined
by James J. Powers, M.D. In his four-page narrative report dated April 1, 2014, Dr.
Powers opines:
We come to a total of 15% whole body impairment for the
injuries suffered by the Injured Worker on 08/19/2011.
***
No. 14AP-628 14
The Injured Worker is exhibiting significant deconditioning.
She has multilevel involvement. I would see her being able to
do sedentary work.
{¶ 44} 24. Following a July 18, 2014 hearing, an SHO issued an order denying the
PTD application. The SHO's order explains:
It is the order of the Staff Hearing Officer that the IC-2,
Application for Permanent Total Disability Compensation,
filed 12/20/2013 is denied. The Staff Hearing Officer finds
the residual impairment from the allowed conditions, when
combined with the Injured Worker's vocational factors, do
not remove her from all sustained remunerative
employment.
The Injured Worker was injured on 08/19/2011 when she fell
from her school bus. She has not worked since the date of
injury. The Injured Worker underwent a lumbar
vertebroplasty on 12/07/2011. Treatment thereafter has
consisted of medial branch blocks, epidural steroid
injections, radiofrequency ablations, and the use of
prescription medications.
Relying upon the opinion from James Powers, M.D. dated
04/01/2014, the Staff Hearing Officer finds the allowed
conditions prevent the Injured Worker from returning to her
former position of employment as a school bus driver. Dr.
Powers opined that the allowed conditions represent a 15%
permanent partial impairment and restrict the Injured
Worker to sedentary occupations. Dr. Powers' opinion was
found persuasive.
The Injured Worker is 63 years old. While she is near the
typical age of retirement, age alone is not a barrier to re-
employment and cannot be the sole basis for permanent total
disability compensation. The Injured Worker is a high school
graduate and she indicated on her application that she can
read, write, and perform basic math. The Staff Hearing
Officer finds the Injured Worker's education is a vocational
asset for re-employment.
Regarding her work history, the Injured Worker listed on her
application two occupations. From 1989 to 1994 she was a
store manager for a carry-out. She indicated on the
application that her duties were banking and placing orders.
The application further indicates that the Injured Worker
was a school bus driver from 1994 to 2011. When questioned
No. 14AP-628 15
at today's hearing regarding the gaps in her employment
history, the Injured Worker stated that she was unaware that
she had to detail her complete work history. The Injured
Worker indicated that she also worked for approximately two
years doing piece work, which she described as a sit down
job assembling electric parts. The Injured Worker also stated
that she worked for MCL Cafeteria as a cook for
approximately seven years. Regarding the store manager
position, the Injured Worker testified that her husband
owned two carry-outs and that she worked in one of them.
While on the application she indicated that she was
responsible for banking and placing orders, at today's
hearing the Injured Worker testified that her husband did
most of these duties and that she manned the store. The Staff
Hearing Officer concludes the Injured Worker has a varied
work history with some of that work in the light and possibly
sedentary categories (sit-down piece work). The ability to
follow directions as a cook and a bus driver, the ability to
work with the public as a bus driver, and the responsibilities
involved in managing a store all suggest transferrable work
skills. The Staff Hearing Officer therefore concludes the
Injured Worker's vocational history is a vocational asset.
The Injured Worker has not participated in a rehabilitation
program or indicated any effort to obtain training to
positions consistent with her restrictions. The Staff Hearing
Officer reviewed the District Hearing Officer order issued
10/22/2013, which denied vocational rehabilitation services.
This order made the finding that the Injured Worker would
not benefit from services. This finding, however, does not
necessitate a finding of permanent total disability.
Given the Injured Worker's education and work history and
the finding that the Injured Worker is capable of sedentary
work, the Staff Hearing Officer finds the allowed conditions
have not rendered the Injured Worker permanently and
totally disabled. There are positions as clerks and
dispatchers that are in the sedentary strength range that
would be similar to prior positions in the Injured Worker's
work history.
{¶ 45} 25. On August 13, 2014, relator, Betty J. Barnett, filed this mandamus
action.
Conclusions of Law:
No. 14AP-628 16
{¶ 46} Two issues are presented: (1) whether the paragraph of the SHO's order of
July 18, 2014 containing findings regarding an alleged failure to participate in vocational
rehabilitation constitutes an abuse of discretion such that a writ of mandamus must issue;
(2) whether the commission abused its discretion in its consideration of relator's work
history.
First Issue
{¶ 47} Turning to the first issue, the Supreme Court of Ohio has repeatedly
addressed the obligation of a PTD claimant to undergo opportunities for rehabilitation.
State ex rel. B.F. Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525 (1995); State ex rel.
Bowling v. Natl. Can Corp., 77 Ohio St.3d 148 (1996); State ex rel. Wood v. Indus.
Comm., 78 Ohio St.3d 414 (1997); State ex rel. Wilson v. Indus. Comm., 80 Ohio St.3d
250 (1997); State ex rel. Cunningham v. Indus. Comm., 91 Ohio St.3d 261 (2001).
{¶ 48} Here, in the second to the last paragraph of the order (as quoted above), the
SHO states:
The Injured Worker has not participated in a rehabilitation
program or indicated any effort to obtain training to
positions consistent with her restrictions. The Staff Hearing
Officer reviewed the District Hearing Officer order issued
10/22/2013, which denied vocational rehabilitation services.
This order made the finding that the Injured Worker' would
not benefit from services. This finding, however, does not
necessitate a finding of permanent total disability.
{¶ 49} With respect to the first sentence of the paragraph at issue, it is indeed
undisputed that relator has not participated in a rehabilitation program. However, the
record belies the remaining part of the sentence. That is, the SHO was incorrect to state
that relator has not "indicated any effort to obtain training to positions consistent with
her restrictions." (Emphasis added.) That statement simply ignores that relator, through
her counsel, repeatedly sought to be declared feasible for participation in vocational
rehabilitation services. Relator's requests to be determined feasible were repeatedly
denied, albeit for the reasons set forth in the DHO's order of October 18, 2013.
{¶ 50} While the paragraph of the SHO's order of July 18, 2014 at issue concludes
with the legally correct finding that the DHO's order of October 18, 2013 (mailed October
22, 2013) "does not necessitate a finding of permanent total disability" it is not entirely
No. 14AP-628 17
clear as to what extent, if any, the SHO held the incorrect finding or statement against
relator's PTD application. That is, the question here is whether the flawed paragraph of
the order requires this court to issue a limited writ of mandamus for a new determination
of relator's PTD application absent any further consideration of the vocational
rehabilitation factor.
{¶ 51} In State ex rel. Slater v. Indus. Comm., 10th Dist. No. 06AP-1137, 2007-
Ohio-4413, this court determined that the commission abused its discretion in its denial
of PTD compensation by holding the claimant, Glenn O. Slater, accountable for his failure
to explore vocational rehabilitation and training when medical evidence indicated that
Slater had undergone chemotherapy and a tracheostomy for treatment of his
nonindustrial carcinoma. Specifically, in violation of State ex rel. Noll v. Indus. Comm., 57
Ohio St.3d 203 (1991), the commission held Slater accountable for his failure to pursue
vocational rehabilitation absent any reasoning supported by some evidence.
{¶ 52} In Slater, this court issued a writ of mandamus ordering the commission to
issue a new order that adjudicates the PTD application.
{¶ 53} In Slater, this court, through its magistrate, distinguished this court's
decision in State ex rel. Searles v. Indus. Comm., 10th Dist. No. 01AP-970, 2002-Ohio-
3097, affirmed 98 Ohio St.3d 390, 2003-Ohio-1493.
{¶ 54} In Searles, this court states:
The commission may state separate, alternative grounds for
denial of PTD. State ex rel. Speelman v. Indus. Comm.
(1992), 73 Ohio App.3d 757, * * *. If the commission does
choose to use alternative grounds, "those grounds should not
be merged together and should be explained separately so
that a reviewing court can understand what has been done."
Id. at 761, * * *. The commission's decision, in separate
paragraphs, details the grounds utilized to deny relator's
PTD application. One basis for the denial of PTD was
relator's failure to participate in rehabilitation. But the
commission also focused on factors that would be assets for
relator in obtaining employment. Although the commission
did not expressly state that these were all separate reasons
for denial, the decision did explain the grounds separately,
thereby allowing this court to properly review that decision.
Even if the commission improperly weighed relator's failure
to participate in rehabilitation, we find that there was other
No. 14AP-628 18
evidence in the record to support the commission's decision
to deny relator's PTD application.
Id. at ¶ 5-6.
In Slater, this court, through its magistrate, distinguished Searles:
Unlike the situation in Searles, the SHO's order here does
not address the failure to pursue vocational rehabilitation in
a separate paragraph. Actually, the SHO points to the failure
to pursue vocational rehabilitation in the two key paragraphs
in which the other nonmedical factors such as age, education
and work history are addressed. That is, the SHO's finding of
a failure to pursue vocational rehabilitation is intertwined
with the analysis of the other nonmedical factors.
Id. at ¶ 44.
{¶ 55} In State ex rel. Retar v. Indus. Comm., 10th Dist. No. 08AP-856, 2009-
Ohio-5669, despite the commission's flawed determination regarding vocational
rehabilitation, this court, through its magistrate, determined that the commission's flawed
determination can be separated from the remainder of the nonmedical analysis. The
magistrate's order, as adopted by the court, states:
Relator's alleged failure to participate in vocational
rehabilitation is largely irrelevant to the commission's
finding that relator "retains the functional capacity to be
trained to perform work within the sedentary classification."
Id. at ¶ 39
{¶ 56} In State ex rel. Barfield v. Indus. Comm., 10th Dist. No. 10AP-61, 2010-
Ohio-5552, this court was again confronted with a commission order denying PTD
compensation that contained improper statements regarding the claimant's efforts toward
vocational rehabilitation. Finding that the improper statements required this court to
issue a limited writ, this court explains:
The staff hearing officer in this case "bookends" her decision
with a reference to vocational rehabilitation. Moreover, in
the summary paragraph that explains the decision, the staff
hearing officer first concludes relator "retains the physical
functional capacity to perform sedentary employment
activities which require limited use of the right hand and
which are low stress activities." Acknowledging relator "has
restrictions," the staff hearing officer in the same paragraph
follows with the statement that relator "made no effort in the
No. 14AP-628 19
13 years since she last worked to participate in a program of
rehabilitation designed to enhance or improve her ability to
return to the work force." (Mag. Dec., ¶ 26.) In light of such a
paragraph, we are compelled to conclude the staff hearing
officer's erroneous analysis of the vocational rehabilitation
issue is so intertwined with the analysis of the medical and
nonmedical factors that we must grant a limited writ and
return this matter to the commission to consider relator's
application for permanent total disability compensation
without at the same time considering that she did not engage
in vocational rehabilitation.
Id. at ¶ 7.
{¶ 57} Here, applying the case law, the magistrate finds that the incorrect
statement in the SHO's order regarding an alleged failure of relator to "indicate any effort
to obtain training" does not require this court to issue a writ of mandamus.
{¶ 58} No other paragraphs of the SHO's order, other than the one at issue, contain
any discussion of relator's efforts towards vocational rehabilitation. The incorrect
statement can easily be separated from the SHO's analysis in the remainder of the
paragraphs. The incorrect statement is not intertwined with the SHO's main analysis of
the non-medical factors.
Second Issue
{¶ 59} The second issue, as previously noted, is whether the commission abused its
discretion when it considered relator's work history.
{¶ 60} In challenging the commission's review of relator's work history, relator sets
forth four cases in which the Supreme Court of Ohio determined that the commission's
consideration of the PTD applicant's work history violated State ex rel. Noll v. Indus.
Comm., 57 Ohio St.3d 203 (1991).
{¶ 61} In chronological order, those cases are State ex rel. Rhoten v. Indus.
Comm., 77 Ohio St.3d 8 (1996), State ex rel. Bruner v. Indus. Comm., 77 Ohio St.3d 243(1997), State ex rel. Pierce v. Indus. Comm., 77 Ohio St.3d 275 (1997), State ex rel.
LeVan v. Young's Shell Serv., 80 Ohio St.3d 55 (1997).
{¶ 62} In Rhoten, the court states:
No. 14AP-628 20
Two assumptions by the commission further undermine its
analysis. The first is that every job produces some
transferable skill. The second is that this claimant's prior
jobs left her with skills transferable to sedentary work.
The commission's first assumption ignores the plethora of
unskilled jobs in the workplace. The second ignores that
none of claimant's jobs had been sedentary. It is thus unclear
how claimant's jobs would yield sedentary skills.
The commission could, of course, have facilitated review by
identifying these perceived "skills." Under similar
circumstances, the court in State ex rel. Haddix v. Indus.
Comm., 70 Ohio St.3d 59, 61 (1994), held:
The commission determined that claimant's prior work as a
gas station attendant and press operator provided him with
skills transferable to sedentary employment. The
commission's order, however, does not identify what those
skills are. Such elaboration is critical in this case, since
common sense suggests that neither prior work is, in and of
itself, sedentary.
Id. at 11.
{¶ 63} In Bruner, the court states:
We are disturbed by the increasing frequency with which the
commission has denied permanent total disability
compensation based on "transferable skills" that the
commission refuses to identify. This lack of specificity is even
more troubling when those "skills" are derived from
traditionally unskilled jobs.
Id. at 245.
{¶ 64} In Pierce, the court states:
The commission's discussion of claimant's work history is
also inadequate. With increasing, and disturbing, frequency
we are finding that no matter what claimant's employment
background is, the commission finds skills-almost always
unidentified-that are allegedly transferable to sedentary
work. In some cases, depending on the claimant's
background, these skills are self-evident. In many cases, they
are not.
No. 14AP-628 21
***
The present claimant was an ironworker-a position that is
neither sedentary nor light duty. Again, however, the
commission found skills transferable to light work, without
specifying what those skills were. The reference to
supervisory skills, without more, is not enough in this case,
given claimant's tenure as a working, as opposed to purely
administrative, supervisor.
Id. at 277-78.
{¶ 65} In Levan, the court states that "[a]t issue is the commission's non-medical
analysis which we find to be deficient in two respects." Only the first issue is pertinent
here:
The first involves the commission's treatment of claimant's
work history, which is little more than a recitation of
claimant's past jobs. The commission's attempt to add a
substantive dimension to this recitation by using the phrases
"wide and varied" and "flexibility and adaptability" fails.
Such hollow phrases are reminiscent of the boilerplate
previously decried in Noll, and simply restate what the
earlier recitation had already revealed-that claimant had
worked many jobs prior to injury. These phrases do not
explain how claimant's occupational history enhances his
reemployment potential.
Id. at 57.
{¶ 66} Here, relator contends that the commission found skills transferable to
sedentary work without specifying what those skills are. Relator also contends that the
commission's use of the term "varied work history" in the SHO's order of July 18, 2014 is
akin to the commission's use of the term "wide and varied" which the court found to be
"hollow" in Levan. Id. at 57.
{¶ 67} The magistrate disagrees with relator's contention that any of the four cited
cases require this court to issue a writ of mandamus.
{¶ 68} Ohio Adm.Code 4121-3-34 sets forth the commission's rules applicable to
the adjudication of PTD applications.
{¶ 69} Ohio Adm.Code 4121-3-34(B) sets forth definitions.
{¶ 70} Ohio Adm.Code 4121-3-34(B)(3) is captioned "Vocational factors."
No. 14AP-628 22
{¶ 71} Ohio Adm.Code 4121-3-34(B)(3)(c) is captioned "Work experience."
{¶ 72} Thereunder, the code provides:
(iv) "Transferability of skills" are skills that can be used in
other work activities. Transferability will depend upon the
similarity of occupational work activities that have been
performed by the injured worker. Skills which an individual
has obtained through working at past relevant work may
qualify individuals for some other type of employment.
(v) "Previous work experience" is to include the injured
worker's usual occupation, other past occupations, and the
skills and abilities acquired through past employment which
demonstrate the type of work the injured worker may be able
to perform. Evidence may show that an injured worker has
the training or past work experience which enables the
injured worker to engage in sustained remunerative
employment in another occupation. The relevance and
transferability of previous work skills are to be addressed by
the adjudicator.
{¶ 73} At issue here, is the following portion of the SHO's order:
The Staff Hearing Officer concludes the Injured Worker has
a varied work history with some of that work in the light and
possibly sedentary categories (sit-down piece work). The
ability to follow directions as a cook and a bus driver, the
ability to work with the public as a bus driver, and the
responsibilities involved in managing a store all suggest
transferrable work skills. The Staff Hearing Officer therefore
concludes the Injured Worker's vocational history is a
vocational asset.
{¶ 74} The ability to follow directions, the ability to work with the public, and the
responsibilities involved in managing a store are arguably not transferrable work skills.
While those identified abilities may have been enhanced during the work history,
ordinarily those work abilities would have pre-existed the job being performed.
Therefore, those abilities are arguably not transferrable work skills because they were
probably not "obtained through working" as indicated at Ohio Adm.Code 4121-3-
34(B)(3)(c)(iv).
{¶ 75} Nevertheless, even if it can be argued that the identified abilities are
technically not transferrable work skills, it was not improper for the commission to
No. 14AP-628 23
articulate in its order the abilities that relator has demonstrated during her work history,
especially when those abilities can assist relator in the performance of another job.
{¶ 76} Instructive here is State ex rel. Ewart v. Indus. Comm., 76 Ohio St.3d 139(1996), wherein the court states:
The freedom to independently evaluate nonmedical factors is
important because nonmedical factors are often subject to
different interpretation.
***
The same can be said in this case with regard to claimant's
work history. Claimant worked for Refiners Transport and
Terminal as a trucker for twenty-two years. Claimant's long
tenure can be viewed negatively because it prevented the
acquisition of a broader range of skills that more varied
employment might have provided. It also, however, suggests
a stable, loyal and dependable employee worth making an
investment in. This is an asset and is an interpretation as
valid as the first.
Id. at 141-42.
{¶ 77} The Ewart court also states that a "lack of transferrable skills * * * does not
mandate a permanent total disability award." Id. at 142.
{¶ 78} Based upon the above analysis, the magistrate does not find an abuse of
discretion in the commission's consideration of relator's work history.
{¶ 79} 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
No. 14AP-628 24
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).