VED SEP GLERK OF 001.1RT SUPREME UUURi UF OHIO. Appellees, IN THE SUPREME COURT OF OHIO

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1 IN THE SUPREME COURT OF OHIO State of Ohio, ex rel. Colleen J. Smith. Case No.: Appellant, V. Cincinnati Schools and Industrial Commission of Ohio On Appeal from the Franklin, County Court of Appeals, Tenth Appellate District Case No.: 09AP-504 Appellees, MERIT BRIEF OF APPELLANT COLLEEN J. SMITH Laura I. Murphy ( ) James A. Whittaker ( ) Law Offices of James A. Whittaker, LLC 432 Ray Norrish Drive Cincinnati, Ohio (513) , (Direct) (513) (fax) COUNSEL FOR APPELLANT, COLLEEN J. SMITH Richard Cordray Attorney General of Ohio Allan K. Showalter ( ) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22nd Floor Columbus, Ohio (614) SEP VED GLERK OF 001.1RT SUPREME UUURi UF OHIO ATTORNEY FOR APPELLEE, INDUSTRIAL COMMISSION OF OHIO

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...:... ii Page STATEMENT OF FACTS ARGUMENT Proposition of Law No. 1 Where defects exist in the reports of medical examiners hired by the Industrial Commission which can be cured during deposition, and the disability hearing does not otherwise provide a reasonable option to explore and clarify errors, inconsistencies and ambiguous statements, Claimant's motion to depose the examiners must be granted. Proposition of Law No. 2 Where the Industrial Commission relies on reports of one-time medical examiners which contain errors, inconsistencies and ambiguous statements, and further fails to explain how other relevant non-medical factors enable a claimant's return to the workforce when she was a failed candidate for vocational rehabilitation, the order to deny Permanent Total Disability benefits is contrary to law and an abuse of discretion. 14 CONCLUSION PROOF OF SERVICE APPENDIX App. Notice of Appeal to Ohio Supreme Court April 16, Judgment Entry Court of Appeals March 25, Decision of Court of Appeals March 25, 2010, with attached Decision of Magistrate November 12, State ex rel. Clark v. Air Technolo ies, Inc. Franklin App. No. 07AP-153, 2007-Ohio ORC

3 TABLE OF AUTHORITIES CASES: Page Meeks v. Ohio Brass Co. (1984), 10 Ohio St. 3d 147,462 N.E. 2d State ex rel. Blue v. Ind. Comm. (1997), 79 Ohio St. 3d 466, 683 N.E.2d State ex rel. Bryant v. Ind. Comm. (1996), 74 Ohio St.3d 458, 659 N.E.2d State ex rel. Clark v. Air Technologies, Inc., Franklin App. No. 07AP-153, 2007-Ohio State ex rel. Cox v. Greyhound Food Management Inc. 95 Ohio St. 3d 353, 2002-Ohio State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St.3d 649, 640 N.E.2d State ex rel. Gay v. Mihm (1994), 68 Ohio St. 3d 315, 626 N.E.2d :... 8, 16 State ex rel. Hayes v. Ind. Comm. (1997), 78 Ohio St. 3d 573, 679 N.E.2d State ex rel. JenninQs v. Ind. Conun. (1982), 1 Ohio St. 3d 101, 438 N.E.2d , 9 State ex rel. Lopez v. hid. Comm. 69 Ohio St.3d 445, 1994-Ohio-458, 633 N.E.2d , 13 State ex rel. Paraeon v. Ind. Comm. (1983), 5 Ohio St. 3d 72, 448 N.E. 2d State ex rel. Pate v. Ind. Comm. 97 Ohio St.3d 89, 2002-Ohio State ex rel. Stephenson v. Ind. Comm. (1987), 31 Ohio St. 3d 167, 509 N.E.2d State ex rel. Taylor v. Ind. Comm. (1995), 71 Ohio St.3d 582, 645 N.E.2d State ex rel. Wilson v. hid. Comm. (1997), 80 Ohio St.3d 250, 685 N.E.2d , 16 State ex rel. Woodard v. Frigidaire Div.; Gen. Motors Corp. (1985), 18 Ohio St.3d 110, 480 N.E.2d STATUTES: O.R.C. Section O.R.C. Section O.R.C. Section CODES: OAC ii

4 STATEMENT OF FACTS This case arises from the decision of the Industrial Commission of Ohio to deny Appellant Colleen Smith's application for permanent and total disability Workers' Compensation benefits. Mrs. Smith was injured in the course of and arising out of her employment with several employers, primarily Cincinnati Schools, on August 7, 1970; February 23, 1988; November 2, 1993; October 4, 1995; and February 4, Colleen Smith was first injured while working on August 7, 1970 when the chair on which she was sitting collapsed. Claim No.: has been formally recognized by the Appellee, Industrial Commission of Ohio, for the conditions of lumbosacral sprain and posttraumatic neurosis. The Appellant sustained a second injury on February 23, 1988 when she was assaulted by a student. Claim No.: PEL85282 has been formally recognized by the Appellee, Industrial Commission of Ohio, for the conditions of neck puncture and sprain of neck. On November 2, 1993 she was injured when she tried to restrain a student involved in a fight. Claim No.: PEL has been formally recognized by the Appellee, Industrial Commission of Ohio, for the conditions of aggravation of pre-existing cervical strain and aggravation of pre-existing lumbosacral strain. She sustained a fourth injury on October 4, 1995 when her chair collapsed and she hit her head. Claim No.: has been formally recognized by the Appellee, Industrial Commission of Ohio, for the conditions of contusion of face, scalp and neck; sprain lumbar region; and sprain of neck. She was again injured on February 4, 1997 when a metal wall map fell from its mounting, striking her in the head. Claim No.: has been formally recognized by the Appellee, 1

5 Industrial Commission of Ohio, for the conditions of acute cervical strain; head trauma; left sided ataxia and depressive disorder. (Supp. Pp 16-20) On October 30, 2006, the Appellant filed her application for permanent and total disability benefits with the Industrial Commission. (Supp. Pp 16-20) Mrs. Smith was born on August 12, 1948 and was 59 years of age when the Industrial Commission issued its order denying her application for permanent and total disability benefits. Appellant is a high school graduate and has obtained a bachelor's degree and a master's degree. However, she has not worked in her field of training since being medically disabled by her employer in (Supp. Pp ) Mrs. Smith filed her application for permanent and total disability compensation supported, in part, by the reports of her physicians, Dr. Marvin Rorick dated November 15, 2006 and Dr. Stephen Halmi, Psy.D. dated October 16, In his initial evaluation, Dr. Rorick noted Mrs. Smith was injured while performing job duties at Cincinnati Schools on February 4, (Supp. Pp 2-3) Mrs. Smith had been under the care of Dr. Rorick for her ongoing symptoms and he had been prescribing her medications for the past 12 years. Dr. Rorick's report dated November 15, 2006 noted that Mrs. Smith's recovery from her February 4, 1997 injury had reached maximum medical improvement but that she was still unable to return to work. Mrs. Smith suffered from chronic weakness in the left lower extremity and had required chronic daily medication for management of pain. (Supp. Pp 58) Dr. Rorick reported physical fmdings which revealed deficits in strength in the lower extremities for which Mrs. Smith had to use a cane. She had continuing neck and head pain as well. Mrs. Smith had been treated with medications including Flexeril, Robaxin, Vicodin and 2

6 Diazepam. Dr. Rorick opined that Mrs. Smith was medication dependant and unable to return to useful work, thus permanently and totally disabled. (Supp. Pp 58) In Dr. Stephen Halmi's October 16, 2006 report, he noted that Mrs. Smith had been his patient at Michael T. Farrell, Ph.D. and Associates for individual psychotherapy for her depressive symptoms beginning in September of Dr. Halmi indicated that despite ongoing psychotherapy treatment, the quantity and intensity of Mrs. Smith's depressive symptoms were not likely to improve. He reported that there was a strong interaction between Mrs. Smith's physical injuries, with associated physical liniitations, and her depressive symptoms. She continued to report significant pain and reduced physical fanotioning, despite medical intervention. (Supp. Pp 45-49) Dr. Halmi noted that the effects of Mrs. Smith's psychological symptoms would disable her from performing the mental activities required to work. Her ability to sustain attention and concentration were diminished. Chronic fatigue and apathy would negatively affect performance. Her 'ability to interact with others was impaired, causing her to be embarrassed and fearful. A low frustration tolerance would causeher to have difficulty responding appropriately to daily stressors associated with work routine. Mrs. Smith's overly generalized and pessimistic thought content would cause her difficulty with setting realistic goals. In Dr. Halmi's report he also reviewed the records of other mental health providers who had previously examined Mrs. Smith. He noted that in Dr. Philip Edelstein's report dated August 5, 1998, he found that Mrs. Smith was incapacitated for the performance of duties as a teacher, considering her disability and that she should be retired. Dr. Glenn Weaver's report dated November 13, 2001 found that Mrs. Smith had reached MMI for her Post- Traumatic Neurotic Neurosis. In a letter dated February 2, 2002, Dr. George Parsons opined that Mrs. Smith's depression and pain disorder developed as a direct result of the cumulative effects of the 3

7 various industrial accidents Mrs. Smith suffered while working as a school teacher. Dr. Michael Farrell's report of September 26, 2002 diagnosed Major Depressive Disorder, Recurrent and found that Mrs. Smith's most recent depressive episode had developed as a direct response of the February 4, 1997 industrial accident and its negative consequences. Dr. Kenneth Manges submitted a report dated Apri124, 2002 concurring with Dr. Farrell and diagnosing Major Depressive Disorder as a direct and proximate result of the 1997 industrial accident. Dr. Halmi pointed out that all of the mental health professionals who had conducted psychological evaluations of Mrs. Smith from 1998 through 2003 all concurred that she suffered from Major Depressive disorder. He concluded that Mrs. Smith's signs and symptomatology were consistent with a Major Depressive Disorder for over a five year period, which span of time was indicative of permanency. The record also contains objective evidence which indicated that there had been no significant improvement with regard to Mrs. Smith's depression. The MMPI-2 administered on October 27, 2003, established that she fell in the severe range of depression at the greater than 99`h percentile. The test was administered again on September 19, 2006 with a result in the 98`h percentile. Thus, the testing indicated that Mrs. Smith continued to suffer from significant depression and that she was not likely to improve with continued treatment. Dr. Halmi submitted a C-9 requesting vocational rehabilitation for Mrs. Smith in September of 2005, which was held pending a determination of eligibility/feasibility, (Supp. Pp 37-38). However, after further diagnostic testing was performed, Dr. Halmi indicated in October of 2006 that Mrs. Smith was not a viable candidate for vocational rehabilitation because her depressive symptoms would interfere with her retraining. (Supp. Pp 49) Mrs. Smith was to continue psychotherapy treatment with Dr. Farrell's office on a monthly basis to maintain treatment goals and prevent further relapses. (Supp. Pp 42-43) 4

8 Prior to submitting the application for Permanent and Total Disability, the Industrial Commission had already found Mrs. Smith to be over 100% permanently disabled per its orders on permanent partial disability. For claim , Mrs. Smith was found to be 6% permanently partially disabled. For claim PEL85282, Mrs. Smith was found to be 15% permanently partially disabled. For claim , Mrs. Smith was found to be 85% permanently partially disabled. (Supp. Pp 16-20) The Industrial Commission hired Dr. Michael A. Murphy, PhD to perform a one-time psychological evaluation in regard to Appellant's application for Permanent Total disability compensation. (Supp. Pp 76-84) Dr. Murphy's evaluation occurred on April 10, The doctor noted that upon Mrs. Smith's arrival, her gate was slow and she used the assistance of a cane, a back brace and a cervical collar. Dr. Murphy noted that the injured worker was involved in five industrial injuries. She returned to work after each injury. She participated in extensive physical therapy and pain management. Her current medications included Vicodin, Robaxin and Valium. He noted she participated in vocational rehabilitation on four occasions. Her chief complaint was chronic pain. Dr. Murphy performed a mental status evaluation to assess whether Mrs. Smith's psychological condition was work prohibitive. With regard to daily activifies, he noted that Mrs. Smith was suffering from a mild impairment. He however assessed a mild to moderate impairment with regard to her social interaction. She reported being ashamed of using a cane and she preferred to be alone. With regard adaptation to the work place, concentration and attention, Dr. Murphy found Mrs. Smith was suffering from a mild impairment. Dr. Murphy's report summarized that upon consideration of the allowed condition, Mrs. Smith had a Class I level of impairment for activities of daily living, sustained concentration and memory, and adaptation. She had a Class I-rI level of impairment for social interaction. He opined that the 5

9 combined effects of her mental disorder resulted in a 16% whole person percentage of permanent impairment. When asked to respond to the question: "What is the injured worker's occupational activity capacity?" Dr. Murphy responded that the "injured worker's psychological condition alone is not of a work prohibitive nature." (Supp. Pp 83) He also checked a box on an occupational activity assessment form indicating the Appellant had "no work limitations". (Supp. Pp 84) Dr. Steven Wunder M.D. also conducted a one-time evaluation of Mrs. Smith on Apri14, 2007 on behalf of the Industrial Commission. Dr. Wunder's report noted that the allowed orthopedic conditions in the claims include lumbosacral sprain; post-traumatic neurosis; neck puncture; sprain of neck; aggravation of pre-existing cervical strain; aggravation of pre-existing lumbosacral strain; contusion of face, scalp and neck; sprain lumbar region; acute cervical strain; head trauma; left sided ataxia and depressive disorder. It was noted that she had not worked since Prior to that time, Mrs. Smith reported having worked as a special education teacher for Cincinnati Schools. Dr. Wunder performed a physical examination of Mrs. Smith's cervical and lumbar spine and also of her lower and upper extremities. He opined that the allowed conditions had reached maximum medical improvement. Based on the American Medical Association Guide to the evaluation of permanent impairment 5`h edition, he opined that Mrs. Smith was suffering from a 16% whole person impairment due to the allowed physical conditions in the claim. (Supp. Pp 68-75) Dr. Wunder completed a physical strength rating form whereon he indicated that the injured worker was capable of "light work". (Supp. P 74) On or about Apri120, 2007, the Appellant filed a motion with the Industrial Commission, requesting the right to take the deposition of Industrial Commission specialist, Dr. Murphy. (Supp. P 85) On or about May 14, 2007, Appellant filed a motion with the Industrial 6

10 Commission requesting the right to take the deposition of Industrial Commission specialist Dr. Wunder. (Supp. P 94) On June 28, 2007, both motions to depose filed by Appellant were heard by the Industrial Commission. In its order, the Industrial Commission denied Appellant's request to take the depositions of Dr. Murphy and Dr. Wunder. (Supp. Pp ) On September 25, 2007, a hearing was held before the Industrial Commission on Appellant's application for permanent and total disability compensation. The Industrial Conunission, based upon the medical reports of Dr. Murphy and Dr. Wunder, and non-medical disability factors, denied Appellant's application for permanent and total disability benefits, finding that the Appellant was capable of sustained remunerative work activity. (Supp. Pp ) Appellant thereafter filed her Complaint in Mandamus with the Tenth District Court of Appeals. (Td. 2) Appellant requested that the Court vacate the orders of the Industrial Commission to grant her the right to take the depositions of Dr. Murphy and Dr. Wunder and/or to order the Industrial Commission to issue an order approving Appellant's application for permanent and total disability compensation based upon the evidence contained in the record. The matter was referred to a Magistrate who recommended that the Writ of Mandamus be denied. (Td. 28) Following the filing of timely objections to the Magistrate's decision, (Td. 29) the Court of Appeals of Ohio Tenth Appellate District adopted and affirmed the Magistrate's decision rendered on March 25, The Court of Appeals denied the requested Writ of Mandamus (Td. 32, 33, App. 2). Mrs. Smith filed her Notice of Appeal to the Supreme Court of Ohio on April 15, 2010 and the matter is pending on an appeal of right (Td. 36, App. 1) 7

11 ARGUMENT The Industrial Commission's order finding that Colleen Smith was not permanently and totally disabled is not supported by the record below, is based upon evidence that is inherently inconsistent and is contrary to law and fact. Therefore, this order is an abuse of discretion and must be vacated. The General Assembly has provided for the allowance of permanent and total disability compensation to injured employees pursuant to O.R.C. Section Although not defined in the statute, the courts have defined permanent and total disability as the inability to engage in "sustained remunerative employment". State ex rel. Jennings v. hid. Comm. (1992), 1 Ohio St. 3d 101, 438 N.E.2d 420. The Industrial Commission must indicate in its order the effect of the claimant's medical/psychological impairments and explain how it is that a particular claimant can realistically return to the job market. State ex rel. Hayes v. Ind: Comm. (1997), 78 Ohio St. 3d 573, 679 N.E.2d 295. In addition, the Commission must consider not only medical impairments, but also claimant's age, education, work record and other relevant non-medical factors. Thus, a claimant's medical capacity to work is not dispositive if the claimant's nonmedical factors foreclose employability. State ex rel. Stephenson v. Ind. Comm. (1987), 31 Ohio St. 3d 167, 509 N.E.2d 946, State ex rel. Gay v. Mihm (1994), 68 Ohio St. 3d 315, 626 N.E.2d 666. A Commission order which contains no discussion of a claimant's memory loss, or other non-exertional impairments which affect the claimant's ability to be re-employed in the sedentary work force, is a violation of law and an abuse of discretion. State ex rel. Blue v. Ind. Comm. (1997), 79 Ohio St. 3d 466, 683 N.E.2d See also, State ex rel. Stephenson, supra. It is undisputed that equivocal medical opinions do not constitute evidence upon which the commission can rely when considering a PTD application. 8

12 In State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St.3d 649, 657, 640 N.E.2d 815, the Supreme Court of Ohio summarized the distinction between the ambiguous, equivocal and repudiated reports as follows: * * * [E]quivocal medical opinions are not evidence. See, also, State ex rel. Woodard v. Frigidaire Div., Gen. Motors Corp. (1985), 18 Ohio St.3d 110 ***. Such opinions are of no probative value. Further, equivocation occurs when a doctor repudiates an earlier opinion, renders contradictory or uncertain opinions, or fails to clarify an ambiguous statement. Ambiguous statements, however, are considered equivocal only while they are unclarified. [State ex rel. Paragon v. Ind. Comm. (1983), 5 Ohio St.3d 72, 448 N.E.2d 372.] Thus, once clarified, such statements fall outside the boundaries of [State ex rel. Jennings v. hid. Comm. (1982), 1 Ohio St.3d 101], and its progeny. Also, a medical report can be so internally inconsistent that it cannot be some evidence upon which the commission can rely. State ex rel. Lopez v. Ind. Comm. 69 Ohio St.3d 445, 1994-Ohio-458, 633 N.E.2d 528; State ex rel. Taylor v. Ind. Comm. (1995), 71 Ohio St.3d 582, 645 N.E.2d If the Industrial Commission fails to consider all of the above factors and if there is a substantial likelihood that the claimant would be entitled to receive permanent and total disability compensation, the court may issue a fu11 writ of mandamus granting the claimant's application. Proposition of Law No. 1 Where defects exist in the reports of medical examiners hired by the Industrial Commission which can be cured during deposition, and the disability hearing does not otherwise provide a reasonable option to explore and clarify errors, inconsistencies and ambiguous statements, Claimant's motion to depose the examiners must be. granted. In this case, the hearing officer stated that Appellant's orthopedic and psychological conditions were permanent and had reached maximum medical improvement with regard to the allowed conditions. He found the psychological condition did not prevent the injured worker from returning to employment and that Mrs. Smith had no work limitations when considering the 9

13 allowed psychological condition. In reaching this conclusion the hearing officer relied in part on the April 10, 2007 report of Dr. Murphy. However, the report of Dr. Murphy was ambiguous and internally inconsistent, prompting Appellant's counsel to request a deposition. The doctor's report failed to explain how it was that he found on the one hand, the injured worker had mild to moderate impairments with regard to her social interactions; yet, on the other hand, that she had "no work limitations." This, in addition to the fact that Dr. Murphy also confirmed Mrs. Smith suffered from impairments with regard to her ability to be able to perform daily activities, her ability to adapt to the workplace, and her ability to maintain concentration, attention and pace. (Supp. Pp 79-80) Notwithstanding all of the above-referenced findings in Dr. Murphy's report, the hearing officer sited only to that portion of Dr. Murphy's report which indicated that the injured worker had "no work limitations" in denying the requested benefits. (Supp. P 74) With regard to Mrs. Smith's physical impairments, the hearing officer relied on the report of Dr. Wunder. However, as noted initially in Appellant's request to depose Dr. Wunder, his report was incomplete and ambiguous as he provided no information on claimant's ability to perform work-related activities, other than stating she could perform "light work." It is notable that Dr. Wunder was not expressing an opinion relative to impairment. His opinion related to disability, which is a legal determination within the exclusive realm of the Conunission Meeks v. Ohio Brass Co. (1984), 10 Ohio St. 3d 147, 462 N.E. 2d 389. Dr. Wunder's report references prior work experience as a special education teacher. He noted Appellant was only able to drive short distances. He noted she could only stand for one hour and sit for one to two hours. She could walk for minutes but used a cane for balance. He noted her ongoing medications for the allowed conditions included Vicodin, four to five times per day; the muscle relaxant 10

14 Robaxin, four times per day; and Valium at night several times per week. Yet, no explanation was contained in Dr. Wunder's report as to how her limitations, "great deal of symptoms" and dependency on these medications to manage her conditions was consistent with the ability to perform "light work" as he indicated on the physical strength rating form. Comparing and contrasting the limitations Dr. Wunder included in the body of his report with the definition of "light duty" contained on the physical strength rating form, undeniably reveals unexplained inconsistencies. Appellant's counsel could have explored the inconsistencies in both Dr. Murphy and Dr. Wunder's reports in a deposition. A claimant's right to take a deposition of any witness is controlled by O.R.C. Section O.R.C. Section requires a liberal construction of the statutes in favor of injured workers. The Supreme Court of Ohio has indicated that a deposition should be granted where the issue can be cured by a deposition, and when the disability hearing is not a reasonable option for a resolution. State ex rel. Cox v. Greyhound Food Management Inc., 95 Ohio St. 3d 353, 2002-Ohio In advance of the PTD hearing and following the examinations, Mrs. Smith prepared and filed critiques of Dr. Wunder and Dr. Murphy's reports, which pointed out numerous errors, inconsistencies and inaccurately reported facts in both doctors' reports. (Supp. Pp and 95-98) As one-time examiners of the Appellant, who had no physician-patient relationship with her and no history of consistent contact or treatment, it was apparent their reports were not based on entirely accurate information. In affirming the decision denying the request for depositions, the Court of Appeals pointed to Appellant's ability to offer this informafion at the disability hearing. The Court noted that Plaintiff was able to argue these additional facts, point to inconsistencies and challenge Dr. Wunder's findings to undermine his report. However, obviously Plaintiffls own lay witness 11

15 testimony was an ineffective method of "clarifying" the opinions of the Industrial Commission's doctors. Furthermore, she was prohibited by OAC (C) from producing any medical evidence at the hearing to contradict the medical examiners' opinions. Thus, offering her testimony and arguments alone at the disability hearing was not a reasonable option to resolve the dispute. Clearly, the Hearing Officer rejected the arguments and wholeheartedly accepted the defective reports. The Industrial Commission hires the experts and is both Judge arid Jury with regard to the sufficiency and weight to be afforded the doctors' opinions. Arguably substantial justice would be better served by permitting depositions where on the face of the reports, too many questions are raised but left unanswered, without a face-to-face deposition of the witness. If the doctor is able to explain away the inconsistencies and ambiguities at deposition and provide a solid and substantiated basis for the opinions then no harm, no foul. However, if upon deposition, the doctor's opinions are demonstrated to be unsupported and without adequate underlying facts and data, then such report should not and cannot be relied upon as some evidence to deny the PTD application. Another important consideration in this case which compelled a finding of the necessity for depositions was the fact that both doctors' assessments as to Mrs. Smith's permanent impairment levels were significantly lower than what she has been awarded administratively in her claims. Dr. Wunder only assessed a 16% permanent partial impairment rating under AMA gaidelines for the allowed orthopedic conditions. Yet, Mrs. Smith's had already been administratively adjudicated to have, at a minimum 21 %, with the percentage actually being even higher when taking into account that a portion of the 85% PPD rating she received in her 1970 claim related to her allowed lumbar condition. (Supp. Pp 59 to 64). 12

16 Dr. Murphy likewise assessed only a 16% combined effects level of impairment for the depressive disorder and post-traumatic neurosis, when again, Mrs. Smith has been awarded a significantly higher percentage in her 1970 claim which included the post-traumatic neurosis. Thus, both doctors re-visited Mrs. Smith's permanent partial rating and assessed substantially disparate lower percentages than those previously adjudicated in her various claims. The Court of Appeals rejected Appellant's argument with respect to examining the disparity of the different doctors' permanency ratings based on this Court's holding in State ex rel. Pate v. Ind. Comm. 97 Ohio St.3d 89, 2002-Ohio However, while the Pate case stands for the proposition that a substantial disparity in permanency ratings alone is not a determinative fact requiring the granting of a deposition request in a PTD matter, such factor could be considered along with other criteria in determining whether the request should be granted under the totality of circumstances. In State ex rel. Clark v. Air Technolo va 'e s. Ino., Franklin App. No. 07AP-153, 2007-Ohio-6864 (App. 4) claimant's deposition request of the IC's doctor was granted where his whole person impairment was significantly lower than what the claimant had received in permanent partial awards. The Supreme Court has viewed a 50% impairment as being "high". State ex rel. Lopez v. Ind. Comm., 68 Ohio St. 3d 315, 1994-Ohio-458, 633 N.E.2d 528. Mrs. Smith was awarded over 100% administratively across all of her claims. There was no way for Appellant to effectively challenge the examining IC doctor's lower percentages at hearing by merely confronting their paper reports. Credibility cannot be assessed from merely reviewing a document. Thus, the Commission abused its discretion in denying the deposition requests of Appellant. The error was further compounded when the hearing officer relied on the reports in denying the application for permanent total disability. 13

17 Proposition of Law No. 2 Where the Industrial Commission relies on reports of one-time medical examiners which contain errors, inconsistencies and ambiguous statements, and further fails to explain how other relevant non-medical factors enable a claimant's return to the workforce, when she was a failed candidate for vocational rehabilitation, the order to denying Permanent Total Disability benefits is contrary to law and an abuse of discretion. Finally, the hearing officer's consideration of non-medical factors effecting Appellant's ability to engage in sustained remunerative employment was based upon an incomplete review of the record, refusal to acknowledge the nature and duties of Ms. Smith's employment over the course of her prior work history and her present inability to transfer those skills to a sustained remunerative "light duty" position proposed by Dr. Wunder. The hearing officer identified Appellant's prior work history as a teacher, an administrative assistant, a supervisor and a claims processor as being positive factors with regard to Appellant's ability to work. Yet, nowhere in the Commission's order is it ever explained how those factors realistically equipped Mrs. Smith to perform sustained remunerative employment while being dependent on pain medication and muscle relaxants, and coping with impaired workplace and social fancfioning due to depressive disorder. The Industrial Commission doctors' reports contained inaccurate information with regard to her rehabilitation efforts, which was then relied upon by the Magistrate and the Court below. Mrs. Smith only participated one time in vocational rehabilitation in In 1981 Mrs. Smith applied for but was found not to be eligible for participation in the program. hi 1985, her doctors would not certify her for the program. In 1998 she was medically disabled from her employment with Cincinnati Schools. In 2004 she applied, but again did not participate because she was not a candidate, having been placed on temporary total disability. (Supp. P 36) Thus, her ineligibility for participation in the actual program in 2004 was directly related to the allowed conditions in her claim. The Magistrate's statement in point 5) of her decision that the reason Mrs. Smith 14

18 was not contacted after her PTD application in 2006 for vocational services was because she indicated in her 2001 application she was, "not interested in participating," was fabricated and not supported by the record. Whatever Mrs. Smith indicated with regard to rehabilitation services in 2001 had absolutely no bearing with regard to her rehabilitation situation five years later. The record, at Supp. P 37, contains a C-9 from Dr. Halmi requesting approval for vocational rehabilitation dated September 13, 2005, because Mrs. Sniith was interested in determining if she could return to work in any capacity. (Supp. P 38) However, Dr. Halmi subsequently indicated in his October 16, 2006 report that she was no longer a viable candidate for vocational rehabilitation because her depressive symptoms would interfere with her retraining. Again, her inability to participate in the program in later years was directly related to her allowed conditions in her industrial claims. (Supp. Pp 36, 51, 66-67, 89-90) The Magistrate ignored that the SHO order denying permanent and total disability was devoid of any reference, one way or the other, to Mrs. Smith's vocational rehabilitation attempts and/or eligibility. The SHO discussed Mrs. Smith's nonmedical factors but failed anywhere to even mention that she had applied for, but was repeatedly found ineligible and unable to participate in vocational rehabilitation because of her allowed industrial injuries. Where a claimant's refusal or nonparticipation in vocational rehabilitation can be used as a sword against her/him in supporting the denial of permanent disability compensation, it should likewise be considered a barrier to employment supporting an award of permanent total disability benefits. Either Mrs. Smith is able to engage in vocational re-training for the purpose of getting her back into the "light duty" work the Industrial Commission doctors say she can do, or she cannot, thereby negating the opinions of Drs. Wunder and Murphy, as they are not realistic. The Industrial Commission cannot have it both ways. See, State ex rel. Wilson v. Ind. Comm. (1997), 15

19 80 Ohio St.3d 250, 685 N.E. 2d 774, State ex rel. Bryant v. Ind. Comm. (1996), 74 Ohio St.3d 458, 659 N.E.2d The Appellant asserts that her combined physical and psychological impairments, as found by Drs. Rorick, Dr. Halmi and numerous other doctors prevent all work activity of any nature at any physical or emotional demand level. Eliniination of the defective reports from Dr. Murphy and Dr. Wunder leaves no evidence upon which the Industrial Commission could have based its decision to deny Appellant's application for permanent and total disability benefits. Clearly, there was no evidence in the file to support the Industrial Commission's decision, and therefore, a full writ of mandamus should be issued by this Court, consistent with State ex rel. Ga y, snnra. CONCLUSION Based upon the foregoing, it is respectfully requested that this Court vacate the orders of the Industrial Commission denying the Appellant's application for permanent and total disability compensation and to order the Industrial Commission to issue a new order granting the Appellant's application for permanent and total disability compensation, or, altetnatively, to order the Industrial Commission to grant the Appellant's request to take the depositions of Dr. Murphy and Dr. Wunder, and for any and all other orders this Court deems just and proper. Respec*lly Submitte A. Whittaker ( ) ffice of James A. Whittaker ay Norrish Drive innati, Ohio (513) , (513) (facsimile) Counsel for Appellant, Colleen J. Smith 16

20 CERTIFICATE OF SERVICE I certify that a copy of this Merit Brief was sent by ordinary U.S. mail to counsel of record for Appellee Industrial Commission, Allan Showalter, Assistant Attorney General, Worker's Compensation Section, 150 East Gay Street, 22"d Floor, Columbus, Ohio on Septembera(2010. UNSEL FOR'"APP Colleen J. Smith 17

21 Appendix Notice of Appeal to Ohio Supreme Court April 16, Judgment Entry Court of Appeals March 25, Decision of Court of Appeals, March 25, 2010 With attached decision of Magistrate November 12, State ex. rel Clark v. Air Technologies, Inc. Franklin App. No. 07AP Ohio-6864 Ohio Administrative Code App.

22 IN THE SUPREME COURT OF OHIO State of Ohio, ex rel, Colleen J. Smith vs. Appellant, On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Cincinnati Schools. Court of Appeals and Industrial Commission of Ohio Case No.: 09AP-504 Appellees. NOTICE OF APPEAL OF APPELLANT COLLEEN SMITH Appellant hereby gives Notice of Appeal to the Supreme Court of Ohio from the Judgment of the Franklin County Court of Appeals, Tenth Appellant entered in Court of Appeals No.: 09AP-504 on March 25, This matter involves an appeal of right from a cause which originated in the Court of Appeals. Respectfully Submitted, aura I. Murph Lmurphy@whitsla (513)A direct dia APR 1 b 2Q?El CLERK OF COURT SUPREME COUR'r JF ;)HIQ Ja;I,&^ A. Whittaker ( ) Law Office of James A. Whittaker, LLC 432 Ray Norrish Drive Cincinnati, OH (513) (513) facsimile Counsel for Appellant, Colleen J. Smith Appendix 1

23 CERTIFICATE OF SERVICE I hereby certify that a copy of this Notice of Appeal was sent by ordinary U.S. Mail to counsel for the Industrial Commission of Ohio on this 15`h day of April, 2010 as follows: Allan K. Showalter Stephen D. Plymale Assistant Attorney Generals Workers' Compensation Section 150 East Gay Street, 22"d Floor Columbus, Ohio Y, ^aura I. Mv"y (003, Counsel for Appellayit Co1leey,,T. Smith 2

24 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Colleen J. Smith, Relator, FILED,t,Y GQ^, 0F f"^fy, ^.. " ;. ^^'R2S f: 1 1: j CLE'r3pC OF COURTS A v : No.09AP-504 Cincinnati Schools and Industrial Commission of Ohio, : (REGULAR CALENDAR) Respondents. JUDGMENT ENTRY For the reasons stated in the decision of this court rendered herein on March 25, 2010, the objections to the decision of the magistrate are overruled, the decision of the magistrate is approved and adopted by the court as its own, and it is the judgment and order of this court that the requested writ of mandamus is denied. Costs assessed to relator. Within three (3) days from the filing hereof, the clerk of this court is hereby ordered to serve upon all parties not in default for failure to appear notice of this judgment and its date of entry upon the journal. Judge William A. Klatt Judge Patrick M. McGrath 44 Appendix 2

25 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT ; State of Ohio ex rel. Colleen J. Smith, Relator, v. : No.09AP-504 Cincinnati Schools and Industrial (REGULAR CALENDAR) Commission of Ohio, Respondents. D E C I S I O N Rendered on March 25, 2010 Law Offices of James A. Whittaker LLC, Laura J. Murphy and James A. Whittaker, for relator. Richard Cordray, Attorney General, and Allan K. Showalter, for respondent Industrial Commission of Ohio. BRYANT, J. IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION {11} Relator, Colleen J. Smith, commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its order denying her application for permanent total disability compensation and to find she is entitled to that compensation. Appendix 3

26 No. 09AP Procedural History { 2} Pursuant to Civ.R. 53 "and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended to this decision. In her decision the magistrate determined (1) the Industrial Commission did not abuse its discretion in denying relator's request to depose Steven S. Wunder, M.D. and Michael A. Murphy, Ph.D., and (2) some evidence supports the Industrial Commission's determination that relator is not entitled to permanent total disability compensation. II: Objections {113} Relator filed objections to the magistrate's conclusions of law. Relator does not separately state the objections, but in essence they are: (1) the magistrate wrongly concluded the commission did not abuse its discretion in denying relator's request to depose Drs. Wunder and Murphy, and (2) the magistrate wrongly concluded the commission did not abuse its discretion in finding relator is not entitled to permanent total disability compensation. Ili. First Objection - Depositions of Drs. Wunder and Murphy { 4} The magistrate appropriately set forth the pertinent case law to be considered in permanent total disability compensation applications and adequately addressed the issue of relator's request to depose Drs. Wunder and Murphy. Relator's objections to the magistrate's conclusions of law, setting forth reasons why the depositions are necessary, are unpersuasive. n Although relator contends Dr. Wunder did not record all the information she provided to him, the magistrate properly determined relator was able to provide any additional

27 No. 09AP information at a hearing on her application and at the same time undermine Dr. Wunder's report. n To the extent relator contends Dr. Wunder's findings are inconsistent, the magistrate appropriately observed relator could point out such inconsistencies to the commission, which then could address and remedy the problem to the point of disqualifying the report if necessary, without the need for depositions. n Relator contends Dr. Wunder failed to explain his use of "essentially" normal, but, to the extent the term is vague, relator was able to undermine Dr. Wunder's report with that factor. n Relator suggests Dr. Wunder inaccurately described relator's participation in vocational rehabilitation, but the magistrate adequately addressed the issue. Moreover, any inaccuracy provided a basis for impeaching Dr. Wunder's report. ^--^-=,- n Relator notes that Dr. Wunder's and Dr. Murphy's disability percentages differ vastly from those of other doctors, but, as the magistrate properly concluded, such disparity among reports does not support a request to depose the doctors who issued the reports. State ex rel. Pate v. Indus. Comm., 97 Ohio St.3d 89, 2002-Ohio-5444 (noting such divergent opinions are resolved through the hearing process itself). - { 5} Given the parameters the Supreme Court outlined in Pate for depositions within the context of permanent total disability compensation applications, the commission did not abuse its discretion in denying relator's requests to depose Drs. Wunder and Murphy. Relator's first objection is overruled.

28 No. Q9AP IV. Second Objection - "Some Evidence" { 6} Relator's second objection suggests the commission abused its discretion in denying her request for permanent total disability compensation. The medical evidence before the commission supports the commission's determination both that relator physically could perform light duty work and that her allowed psychological conditions did not prevent her from working. The non-medical factors also support the commission's determination. Although relator was 59 years of age, she had both a bachelor's and master's degree from the University of Cincinnati. Her work history included teaching, serving as an administrative assistant, supervising, and claims processing. Based on those factors, the commission determined relator had transferrable skills necessary to perform sustained remunerative employment. Because some evidence supports the commission's decision, we overrule relator's second objection. { 7) 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 and conclusions of law contained in it. In accordance with the magistrate's decision, we deny the requested writ of mandamus. KLATT and McGRATH, JJ., concur. Objections overruled; writ denied.

29 No. 09AP APPENDIX IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Colleen J. Smith, Relator, v No. 09AP-504 Cincinnati Schools and Industrial Commission of Ohio, : (REGULAR CALENDAR) Respondents. MAGISTRATE'S DECISION Rendered on November 12, 2009 Law Offices of James A. Whittaker LLC, Laura J. Murphy and James A. Whittaker, for relator. Richard Cordray, Attorney General, and Allan K. Showalter, for respondent Industrial Commission of Ohio. IN MANDAMUS { 8} Relator, Colleen J. Smith, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied her application for permanent total disability ("PTD") compensation and ordering the commission to find that she is entitled to that compensation.

30 No. 09AP Findings of Fact: { 9} 1. Relator has five allowed workers' compensation claims which have been allowed for the following conditions: : ACUTE CERVICAL STRAIN; HEAD TRAUMA; LEFT SIDED ATAXIA; DEPRESSIVE DISORDER : LUMBOSACRAL SPRAIN; POST TRAUMATIC NEUROSIS. PEL85282: NECK PUNCTURE; SPRAIN OF NECK. PEL230992: AGGRAVATION OF PRE-EXISTING CERVICAL STRAIN; AGGRAVATION OF PRE-EXISTING LUMBOSACRAL STRAIN : CONTUSION FACE, SCALP, NECK; SPRAIN LUMBAR REGION; SPRAIN OF NECK. {1110} 2. Relator has not worked since { 11} 3. Between 1988 and 2005, relator received several awards of permanent partial disability ("PPD") compensation. The highest percentage was awarded in the 1970 claim (allowed for lumbosacral sprain and post-traumatic neurosis). All total, relator has been awarded more than 100 percent in PPD compensation. { 12} 4. Relator filed her first PTD application in August 2001 and dismissed that request in December { 13} 5. Relator filed her second application for PTD compensation in October { 14} 6. Relator's application was supported by reports from her treating physicians Stephen W. Halmi, Psy.D., licensed psychologist and Marvin H. Rorick, M.D.

31 No. 09AP {1115} 7. In his October 16, 2006 report, Mr. Halmi opined that relator is permanently and totally disabled from working due to her depression "based upon several factors including her presentation, self report, and objective test results." According to Mr. Halmi, Roberto Madrigal, Ph.D., administered the Minnesota Multiphasic Personality Inventory-2nd Edition (MMPI-2) in 2003 and her Depression Scale T score fell within the severe range of depression. Although the test was re-administered in September 2006 and resulted in a lower score, Mr. Halmi opihed that the results still fell within the serious range. Mr. Halmi opined that relator suffers with symptoms consistent with a major depressive episode. Mr. Halmi opined that relator's symptoms of chronic fatigue, poor concentration, apathy, and her reduced ability to concentrate, would negatively affect her work performance. He also noted that her ability to interact effectively with others was impaired, that she avoids being around other people because she is embarrassed that she uses a cane, and she is fearful that she will cry if asked any questions. Lastly, Mr. Halmi opined that relator's ability to adapt to daily stressors associated with routine work was impaired and that she would have difficulty responding appropriately to changes in a work setting because of her reduced frustration tolerance and her overly generalized pessimistic thought content. { 16} 8. In his November 15, 2006 report, Dr. Rorick noted that his physical examination revealed that relator has deficits in strength in the lower extremities for which she needs a cane and she has continuing neck and head pain as well. Because she is medication dependent, he opined that it was unlikely she would be able to return to useful work and he presumed that she was permanently and totally disabled.

32 No. 09AP { 17} 9. Relator receives disability from the Public Employees Retirement System; however, the start date and amount of benefits were not reported. The stipulation of evidence indicated that relator receives a pension from the State Teachers Retirement System in the amount of $1,656 per month. { 18} 10. Relator was also examined by Steven S. Wunder, M.D. In his April 4, 2007 report, Dr. Wunder provided a brief synopsis of relator's injuries and noted her allowed conditions. Thereafter, Dr. Wunder provided his physical findings upon examination: Physical examination revealed her to be a well-developed, well-nourished female in no acute distress. She was 5'0" tall and weighed 145 pounds. Her gait was with a cane. It was slow. There was no significant ataxia though. She was independent with sit to stand and had good balance. Inspection of the spine revealed no abnormal postural curves. She was diffusely tender to palpation over the cervical and lumbar area. However, she had Waddell signs for symptom magnification with axial compression, rotation and shoulder movements. Her lumbar flexion angle was 20 degrees, but straight leg raise was 90 degrees. Extension was 10 degrees, and lateral bending was 10 degrees. Despite her complaints of ataxia, she was able to climb the step to the examination table unassisted. She had a stocking-glove decreased sensation that was non-organic over the entire left leg. Her motor examination showed give-way responses. Her reflexes were 2+.

33 No. 09AP There was no atrophy present, and her thigh circumferences were 42 cm and symmetric, and calf circumferences were 33 cm and symmetric. Her peripheral joint examination showed good range of motion of the hips, knees and ankles, and straight leg raise was intact. Her reflexes in the upper extremities were 1+ and symmetric, and her sensation again showed a stocking-glove decrease over the entire left arm that was not organic. Her motor strength also showed give-way responses. There was no atrophy present. Her mid biceps circumferences were 28 cm and symmetric, and forearm circumferences were 25 cm and symmetric. She was right-hand dominant, and her power grasp was 25 pounds, 20 pounds and 20 pounds on the dominant right side and 25 pounds, 35 pounds and 20 pounds on the left side. Her cervical spine range of motion met Waddell's signs for symptom magnification. She would not move on formal examination more than degrees in any one plane, but observed motions were greater. Despite her complaints of tenderness, there was no muscle guarding or wasting over the cervical area. Her cranial nerve exam II through XII was intact other than for nonorganic sensory loss over the cheek on both sides. Dr. Wunder noted that relator was diffusely tender to palpation over both the cervical and lumbar area; however, he noted further that she had Waddell signs for symptom magnification with axial compression, rotation and shoulder movements. Thereafter, Dr. Wunder indicated that he reviewed relator's medical records and specifically noted the results of the following testing: * * * CAT scan of the head that was normal on February 14, * * * CT scan of the lumbar spine on February 28,

34 No. 09AP , that was normal. * * * [I]ncidental L5 spina bifida. * * * CAT scan of the head on November 1, 1997, that was normal. * * * December 30, 1997, she had a cervical MRI that showed mild spondylosis and spurring at C6-C7 and to a lesser extent at C5-C6. * * * January 17, 1975, EMG that was normal; ** * December 18, 1975, EMG that was normal; * * * February 3, 1979, EMG that was normal; * August 31, 1981, EMG of the legs that was normal; "** December 7, 1981, EMG of the legs that was normal; *** June 10, 1985 CT scan of the lumbosacral spine that was normal; * * * June 10, 1985, EMG of the legs that was normal; * * * September 28, 1990, CT of the lumbar spine that wasnormal; *** October 5, 1991, lumbar MRI that was normal. * * * EMG of the upper extremities on March 6, 1990, that was normal[,] *** cervical MRI on December 7, 1991, that was normal. * * * MRI of the brain that was normal on February 17, 1996; a cervical MRI on June 1, 1996, that showed minimal degenerative disease; and a lumbar MR] on August 17, 1996, that showed a partially sacralized L5 and a minor tiny L5-S1 protrusion. { 19} Thereafter, he discussed the reports of Dr. Rorick and Mr. Halmi as well as other psychological assessments in the record. Dr. Wunder noted that Dr. Rorick noted normal neurologic findings, tension headaches, her motor, sensory and reflex examination was normal, she ambulated with a cane, her cranial nerve examination was normal and there was no verifiable lower extremity weakness. He indicated further that Dr. Rorick's records consistently showed normal neurologic findings. Dr. Wunder opined that relator's allowed physical conditions had reached maximum medical improvement ("MMI"), assessed a 16 percent whole person impairment and opined that she was capable of performing light-duty work. In conclusion, he noted that "she does have a

35 No. 09AP great deal [of] symptoms, but her diagnostic testing and physical findings have been relatively unremarkable." {1f20} 11. Relator was also examined by Michael A. Murphy, Ph.D. In his April 13, 2007 report, Dr. Murphy listed the allowed conditions, the history of her injuries, and noted the records he reviewed. Dr. Murphy administered the Millon Clinical Multiaxial Inventory - II and noted as a possible diagnosis: "Obsessive-Compulsive Personality Disorder or compulsive personality style, depending on the degree of severity and functional impairment." He also opined that relator was reporting mild symptoms of depression. With regard to her residual functional capacities, Dr. Murphy found her daily activities, adaptation to the workplace, concentration, attention, and pace was mildly impaired and social interaction was mild to moderately impaired. Ultimately, Dr. Murphy concluded that relator's allowed psychological conditions had reached MMI, assessed a 16 percent whole person impairment, and concluded that her psychological condition alone was not work prohibitive; however, mild but periodic symptoms of emotional distress were present. { 21} 12. Relator filed motions with the commission requesting the right to depose Drs. Wunder and Murphy. Relator argued that the reports were vague and inconsistent, that Dr. Wunder did not provide any actual return-to-work restrictions and did not actually consider all the allowed conditions, and that Dr. Murphy's report was completely disparate from most of the other psychological reports contained in her file. In support of these motions, relator prepared her own personal critique of the doctors' reports in an effort to demonstrate that they omitted pertinent medical evidence.

36 No. 09AP {122} 13. Relator's motions were heard before a staff hearing officer ("SHO") on June 28, The SHO denied relator's request to depose both physicians. Concerning the report of Dr. Wunder, the SHO stated: The injured worker's motion, filed 05/14/2007, requests authorization to depose Steven Wunder, M.D., concerning his report dated 04/04/2007. This report was prepared at the request of the Industrial Commission on the issue of permanent and total disability. The injured worker requested authorization to depose Dr. Wunder alleging that the report is inconsistent and vague, does not provide actual return to work restrictions and does not provide examination findings on all conditions. The injured worker further alleges that the defects in the report cannot be cured through the hearing process. The Staff Hearing Officer finds that Dr. Wunder's report is clear, is not ambiguous and is supported by adequate findings. Dr. Wunder's report records his interview of the injured worker, his examination findings and a summary of the medical evidence which he reviewed. The Staff Hearing Officer further finds that the report of Dr. Wunder includes a sufficient functional capacities opinion. Dr. Wunder completed the Physical Strength Rating Form indicating that the injured worker would be capable of light work. The Staff Hearing Officer finds that the description of light work is specifically included on the form. The Staff Hearing Officer further finds that any disparities between the opinion of Dr. Wunder and the opinion of other examining physicians can best be resolved through the hearing process. The Staff Hearing Officer therefore finds that deposing Dr. Wunder is not necessary to the fair adjudication of the injured worker's permanent total disability application. Therefore the injured worker's motion is denied. The SHO addressed the report of Dr. Murphy as follows: The injured worker's motion filed 04/26/2007 requests authorization to depose Michael Murphy, Ph.D., concerning his report dated 04/13/2007. Dr. Murphy evaluated the injured worker for the condition depressive disorder on the

37 No. 09AP issue of permanent total disability. The injured worker's motion alleges that Dr. Murphy's report is vague and inconsistent. The injured worker's motion further alleges that the opinion of Dr. Murphy is disparate from most other psychological reports contained in the claim file. The Staff Hearing Officer finds that Dr. Murphy's lengthy report is not vague or inconsistent. The Staff Hearing Officer finds that Dr. Murphy's report contains extensive interview notes, the results of testing that Dr. Murphy administered to the injured worker and a summary of medical reports that Dr. Murphy reviewed in the evaluation process. The Staff Hearing Officer finds that Dr. Murphy's report and opinion are clear and are clearly supported by adequate findings. The Staff Hearing Officer further finds that Dr. Murphy's opinion is not completely disparate from the opinion of other psychological evaluators. The Staff Hearing Officer notes that Dr. Mohammad, who evaluated the injured worker in December of 2004 opined that the injured worker could return to work. The Staff Hearing Officer finds that the differences between the opinion of Dr. Murphy and the opinion of the injured worker's treating physicians can best be resolved through the hearing process. Therefore the injured worker's motion, filed 04/26/2007, is denied. {123} 14. Thereafter, relator's motion for PTD compensation was heard before an SHO on September 25, 2007 and was denied. The SHO relied on the medical reports of Drs. Wunder and Murphy and found that relator had the functional capacity to perform light-duty work and that her psychological conditions are not work prohibitive. Thereafter, the SHO considered the nonmedical disability factors and concluded as follows: The Staff Hearing Officer finds that the injured worker's age, fifty-nine years old, constitutes a mild barrier to reemployment. However, pursuant to State ex rel. Moss v. Industrial Commission (1996) 75 Ohio St.3d 414, age alone does not constitute an absolute barrier to re-employment.

38 No. 09AP Rather, the injured worker's age must be considered in conjunction with all other relevant factors. The Staff Hearing Officer finds that the injured worker is a high school graduate who has obtained both a bachelors degree and a masters degree from the University of Cincinnati. The Staff Hearing Officer finds that the injured worker's educational history indicates that the injured worker can read, write and perform basic math skills as would be expected of an individual with the injured worker's level of formal education. The Staff Hearing Officer further finds that the injured worker's educational history demonstrates that the injured worker is highly skilled and has an above average intellect. Accordingly, the Staff Hearing Officer finds that the injured worker's educational background constitutes a positive vocational asset which enhances the injured worker's ability to gain re-employment. The Staff Hearing Officer finds that the injured worker's IC-2 Application for Permanent and Total Disability Compensation indicates that the injured worker has a very impressive work history. Specifically, the Staff Hearing Officer finds that the injured worker has previously been employed as a teacher, an administrative assistant, a supervisor and a claims processor. The injured worker's duties at her previous positions of employment included supervising and disciplining students, developing lesson plans, monitoring and evaluating students, teaching career education to teachers, performing counseling, coordinating community resources and supervising personnel.additionafly, the injured worker's prior work history required the injured worker to proficiently use maps, computers, overhead projectors, copiers, books, manuals, TVs and VCRs and various types of office equipment. Accordingly, the Staff Hearing Officer finds that the injured worker's prior work history demonstrates that the injured worker has the transferable work skills necessary to perform sustained remunerative employment. Therefore, the Staff Hearing Officer finds that the injured worker's prior work history constitutes a positive vocational asset which enhances the injured worker's ability to gain re-employment. Based on these non-medical disability factors, the Staff Hearing Officer finds that the injured worker has the

39 No. 09AP education, intellect and literacy abilities to perform sustained remunerative employment. { 24} 15. Relator's request for reconsideration was denied by order of the commission mailed March 12, { 25} 16. Thereafter, relator filed the instant mandamus action in this court. Conclusions of Law: { 26} In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, relator must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141. A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76. On the other hand, 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. (1987), 29 Ohio St.3d 56. 'Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder. State ex rel Teece v. lndus. Comm. (1981), 68 Ohio St.2d 165. { 27} The relevant inquiry in a determination of permanent total disability is the claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic v. Indus. Comm. (1994), 69 Ohio St.3d 693. Generally, in making this determination, the commission must consider not only medical impairments, but also the claimant's age, I education, work record and other relevant nonmedical factors. State ex rel. Stephenson

40 No. 09AP v. lndus. Comm. (1987), 31 Ohio St.3d 167. Thus, a claimants medical capacity to work is not dispositive if the claimant's nonmedical factors foreclose employability. State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315. The commission must also specify in its order what evidence has been relied upon and briefly explain the reasoning for its decision. State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203. {1[28} Relator's contention that the commission abused its discretion by denying her request to depose Drs. Wunder and Murphy will be addressed first: { 29} Ohio Adm.Code (A)(7) provides, in pertinent part: Procedure for obtaining the oral deposition of, or submitting interrogatories to, an industrial commission or bureau physician. (a) A request to take the oral deposition of or submit interrogatories to an industrial commission or bureau physician who has examined an injured or disabled worker or reviewed the claim file and issued an opinion shall be submitted in writing to the hearing administrator within ten days from the receipt of the examining or reviewing physician's report[.] (b) The request must set out the reasons for the request[.] (d) [W]hen determining the reasonableness of the request for deposition or interrogatories the hearing administrator shall consider whether the alleged defect or potential problems raised by the applicant can be adequately addressed or resolved by the claims examiner, hearing administrator, or hearing officer through the adjudicatory process within the commission or the claims process within the bureau of workers' compensation. { 30} As noted in the findings of fact, relator's request to depose Dr. Wunder was based on her opinion that his report was inconsistent, vague, and failed to provide actual

41 No. 09AP return-to-work restrictions. Further, relator argued that Dr. Wunder did not examine her on all the allowed conditions. For the reasons that follow, the magistrate finds that the commission did not abuse its discretion. { 31} In State ex rel. Pate v. Indus. Comm., 97 Ohio St.3d 89, 90-91, 2002-Ohio- 5444, 6-12, the Supreme Court of Ohio discussed the, standards under which the commission is to consider motions to depose physicians. The court noted that, while an inconsistent report and substantiaf disparity among experts, had been recognized as legitimate factors for determining the reasonableness of a request to depose a physician, those factors are not relevant when considering a claimant's eligibility for PTD compensation. The court noted that the term "substantial disparity" is undefined in the context. of PTD and that disability hearings occur because there is a disparity in the medical evidence. If all physicians agreed, there would be no need for a hearing. As the court noted, a hearing is needed when one doctor says that a claimant can work and another says the claimant cannot work. { 32} The court also considered the issue of internal inconsistency, and stated that the commission can disqualify a report that is so internally inconsistent as to negate its credibility. This is a problem which the commission can address and remedy without deposition testimony. Instead, the court identified two other criteria: (1) whether a defect exists that can be cured by deposition, and (2) whether the disability hearing provides an equally reasonable option for resolution. { 33} One of relator's criticisms for Dr. Wunder's report was that he did not write down in his report everything she said. The magistrate finds that this issue could have been resolved through testimony at the hearing.

42 No. 09AP { 34} Relator also asserts that Dr. Wunder incorrectly noted that the MRIs and CAT scans have generally been normal. Relator argues that, if those tests were normal, there would not have been a reason to perform so many. As noted at findings of fact number ten, results of the tests listed were essentially normal. { 35} Relator also argues that Dr. Wunder noted that she had participated in rehabilitation several times; however, relator argues that this is inaccurate. Upon review of the record, the magistrate #inds that, in the statement -of facts prepared. by the commission, reference to rehabilitation is mentioned more than once and Dr. Wunder's statements are, in fact, represented by the record. Specifically, her rehabilitation file was closed as follows: (1) 1975, because they were unable to establish the presence of a disability to qualify relator for services; (2) 1981, because relator did not fall within the guidelines for eligibility; (3) 1985, because relator wanted to discuss participation with her doctor before committing, and then failed to contact the rehabilitation division after 30 days had passed; (4) 2004, because relator was not a feasible candidate in light of Dr. Farrell's certification of temporary total disability; and (5) after relator filed her application for PTD compensation in 2006, she was not contacted because, in her 2001 application, she had indicated that she.was not interested in vocational rehabilitation. { 36} Lastly, relator argues that Dr. Wunder's finding of 16 percent impairment is so much lower than the percentage of PPD she has received that his report is clearly flawed. At best, the evidence shows that relator has received a 21 percent PPD award for her back condition. Dr. Wunder's assessment of 16 percent is not significantly different. Relator argues that we must assume that part of the 85 percent PPD award she received in 1985 was related to her back. However, at that time, from a physical

43 No. 09AP standpoint, relator's claim was only allowed for lumbosacral sprain. Her claim was also allowed for post-traumatic neurosis. There is no evidence indicating what percentage was granted for either allowed condition. Without any evidence supporting her statement, the magistrate finds that relator's argument is not persuasive. { 37} The magistrate finds that the commission did not abuse its discretion in denying relator's motion to depose Dr. Wunder. The commission found that any disparities could best be resolved through the hearing process. { 38} Likewise, relator argued that Dr. Murphy's report was vague, inconsistent and completely disparate from other psychological reports contained in the file. Again, relator mentions the rehabilitation issue which this magistrate has already addressed. Further, to the extent that Dr. Murphy did not write down everything that relator told him and that he summarized the reports of other physicians, those alleged deficiencies do not make his report vague or inconsistent. Further, the fact that Dr. Murphy's conclusion differs from Mr. Halmi's conclusion is not a reason for the commission to grant relator's motion to depose Dr. Murphy. Dr. Murphy assessed a 16 percent impairment for relator's psychological conditions. There is other psychiatric evidence in the record. In 1998, Dr. Edelstein opined that relator met.the criteria for disability retirement. He did not give a percent of irnpairment. In 2000, Dr. Parsons, who had treated relator over the years, assessed a^0 percent impairment. In 2001, Dr. Weaver examined relator and found a 10 percent irnpairment. Based on these other opinions, Dr. Murphy's assessment of a 16 percent imp^irment is reasonable. Further, to the extent that the PPD award of 85 percent grand in 1985 was primarily based on relator's allowed psychological condition, it appears her condition improved. Again, the magistrate finds that relator has not

44 No. 09AP demonstrated that the commission abused its discretion in denying her motion to depose Dr. Murphy. {1139} Having found that the reports of Drs. Wunder and Murphy constitute some evidence upon which the commission can rely, the magistrate finds that the commission's determination that she was not entitled to PTD compensation did not constitute an abuse of discretion. The commission found that relator could perform light-duty work and that her allowed psychological coriditions would not prevent her from working. Relator was 59 years of age, and had obtained both a bachelor's and master's degree from the University of Cincinnati. Refator's work history included teacher, administrative assistant, supervisor and claims processor. The magistrate finds that it was not an abuse of discretion for the commission to find that those factors were favorable to relator's ability to perform some sustained remunerative employment. As such, relator has not shown that the commission abused its discretion in this regard either. {140} Based on the foregoing, it is this magistrate's conclusion that relator has not demonstrated that the commission abused its discretion in denying her motions to depose Drs. Wunder and Murphy and further that the commission did not abuse its discretion in denying her application for PTD compensation. As such, this court should deny relator's request for a writ of mandamus. /s/ Stephanie Bisca Brooks STEPHANIE BISCA BROOKS MAGISTRATE

45 No. 09AP NOTICE TO THE PARTIES Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).

46 Casemaker - OH - Case Law - Search - Result Page 1 of Ohio-6864 State ex rel. Clark v. Air Technologies, Inc Ohio-6864 [Cite as State ex rel. Clark v. Air Technologies, Inc., 2007-Ohio-6864] State of Ohio ex rel. Eva Mae Clark, Widow-Claimant of Donald Clark, Relator, V. Air Technologies, Incorporated and Industrial Commission of Ohio, Respondents. No.07AP th District Court of Appeals of Ohio, Franklin County Decided on December 20, 2007 Butkovich, Crosthwaite & Gast Co., L.P.A., Joseph A. Butkovich, and Erin C. McCune, for relator. Krivda Law Offices, LLC, and Pamela S. Krivda, for respondent Air Technologies, Incorporated. Marc Dann, Attorney General, and Gerald H. Waterman, for respondent Industrial Commission of Ohio. IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION DECISION FRENCH,J. {4l1} Relator, Eva Mae Clark, widow of claimant/decedent Donald Clark ("claimant"), filed this original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order, which denied claimant permanent total disability ("PTD") compensation, and ordering the commission to find that claimant was entitled to that compensation. {12} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, recommending that this court deny the requested writ. (Attached as Appendix A.) No party has objected to the magistrate's findings of fact, and we adopt them as our own. Claimant has, however, filed objections to the magistrate's conclusions of law. In those objections, claimant asserts that the magistrate erred in not concluding that the commission erred in relying on the written report of James T. Lutz, M.D., bacause: (1) the report contradicted Dr. Lutz's deposition testimony; and (2) Dr. Lutz did not accept the findings of claimant's treating physician. We disagree. { 3} First, we agree with the magistrate's conclusion that Dr. Lutz's written report did not contradict his deposition testimony. In his report, Dr. Lutz concluded that claimant was capable of performing sedentary work. In his deposition, Dr. Lutz stated that claimant's allowed conditions could make certain types of sedentary or repetitive work more difficult, but he did not state that such work would be impossible. See Lutz Depo. at {14} Second, we agree with the magistrate's conclusion that Dr. Lutz accepted the physical findings of claimant's treating physician, Mark T. Spears, D.C., at least to some extent. In his deposition, Dr. Lutz stated that he "would have been interested in" performing grip strength tests on claimant, but was unable to do so because claimant had died as a result of unrelated causes. (Depo. at 18.) He also stated that, in general, when conducting a file review, he views a treating physician's findings as "simply a barometer that needs to be tested." (Depo. at 21.) Claimant argues that the commission should have given Dr. Spears' findings, which were based on Dr. Spears' personal examination of claimant, more weight than Dr. Lutz's findings, which were made without the benefit of a personal examination. However, as the Appendix 4 8/4/2009

47 Casemaker - OH - Case Law - Search - Result Page 2 ot 6 magistrate explained, the commission has discretion to determine the weight of the evidence before it. Therefore, we overrule claimant's objections. {115} Having conducted an independent review of the record in this matter, and finding no error of law or other defect on the face of the magistrate's decision, this court adopts the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, the requested writ is denied. Objections overruled, writ of mandamus denied. McGRATH, J., concurs. BROWN, J., concurs separately. BROWN, J., concurring separately. { 6} The commission does have discretion to determine the weight of the evidence before it. However, it appears that Dr. Lutz, who never had the opportunity to personally examine Mr. Clark before he passed away, discounts the treating doctor's report because "there oftentimes is a tendency to possibly exaggerate or embellish the claimant's status." (Tr. at ) {17} Therefore, while I agree that Dr. Lutz's written report did not contradict his deposition testimony and that he testified that he accepted the findings of Dr. Spears, caution must be utilized when relying on reports of reviewing doctors-perhaps the same caution Dr. Lutz uses when reviewing treating physician's reports. {18} Relator, Eva Mae Clark, widow of claimant/decedent Donald Clark ("claimant"), has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ( "commission") to vacate its order which denied claimant permanent total disability ("PTD") compensation and ordering the commission to find that claimant was entitled to that compensation. Findings of Fact: {19} 1. Claimant sustained a work-related injury on December 4, 1996, and his claim was ultimately allowed for "sprain of neck; sprain thoracic region; aggravation of pre-existing cervical arthritis C5-6 and C6-7." {110} 2. Claimant treated with Mark T. Spears, D.C., who provided him with ongoing chiropractic care to help alleviate and manage his pain. Claimant did not have any surgery related to the allowed conditions. { 11} 3. Prior to his death, claimant filed two motions: a motion to increase his percentage of permanent partial disability ("PPD") on January 23, 2002, and a motion seeking the payment of PTD compensation filed October 15, Claimant's date of death is November 15, {1112} 4. In support of claimant's above-noted motions, claimant submitted reports from his treating physician, Dr. Spears, both of which indicate that they were based upon an examination of claimant from August 6, Both reports have four paragraphs and the first three paragraphs, identified as history, complaints and physical examination are identical; however, the final paragraph of each report, identified as opinion, differs. In both reports, Dr. Spears indicated that claimant had constant and episodically severe neck and upper back pain and stiffness with spasms, severe morning stiffness, and radicular pain in the left upper extremity which radiated into the lateral aspect of claimant's hand and which was aggravated by certain activities and position. Claimant reported a constant, unrelenting throb in his central and lower neck and indicated that, at times, he has difficulty holding his head in the upright position. Dr. Spears noted that claimant could not sit comfortably for prolonged periods, could not reach at chest level or above without pain, has difficulty rising from a seated position, and episodes of weakness in the left upper extremity. Further, Dr. Spears noted that claimant had difficulty turning his neck, episodic dizziness, ringing in his ears, and trouble concentrating. With regard to his physical examination, Dr. Spears noted that claimant's grip strength in his left hand was diminished by over 50 percent, that he has sensory loss along the CS-C6 dermatomal distribution on the left, with diminished two-point discrimination relating to his left hand. Dr. Spears noted palpable spasms and guarding, paraspinal muscle tension 8/4/2009

48 Casemaker - OH - Case Law - Search - Result Page 3 of 6 central and paraspinal from C3 to Ti, pain traveling laterally in a diffuse manner to include the trapezius muscle groups, greater on the left than right. Concerning cervical ranges of motion, Dr. Spears noted flexion of 30 degrees, extension of ten degrees with increasing pain, left lateral flexion of five degrees, right lateral flexion of ten degrees, left rotation of 40 degrees, and right rotation of 50 degrees. Dr. Spears noted consistent crepitation throughout the full arc of motion and increased radicular pain and numbness associated with the end points of most of the above-noted ranges of motion. {113} In the report submitted with claimant's increase of his PPD award, Dr. Spears opined that claimant had a 31 percent impairment of the whole person directly related to the allowed conditions. { 14} In the report submitted with claimant's PTD application, Dr. Spears opined: * * * His chronic condition, including upper extremity weakness secondary to a condition complicated by degener-ative changes also allowed in this claim, makes any type of employment that requires any repetitive use of the upper extremities, any lifting or reaching above chest level, and any prolonged sitting nearly impossible for him. Any inclusion of twisting, reaching, or lifting is physically beyond his capacities. He cannot tolerate vibration or working in cooler temperatures. These permanent limitations, each taken individually, markedly reduce his employability and ability to compete successfully in the workforce. Based on all these listed factors, and in combination with his age, employment history, practical work experience, educational levels and other background information, I feel that Mr. Donald Clark is permanently and totally disabled, and is therefore unable to sustain any type of renumerative [sic] employment whatsoever. This permanent disability is directly and causally related to the allowed conditions of the above referenced claim, their permanent residuals, and their subsequent and combined complicating factors. {115} 5. Claimant was scheduled for an independent medical examination with James T. Lutz, M.D.; however, before Dr. Lutz had the opportunity to examine him, claimant died of colon cancer. As such, Dr. Lutz's report, dated April 22, 2003, is a file review. At the outset of his report, Dr. Lutz indicated that he reviewed the following materials: "The claim file related to the injury of record, and a statement of facts prepared by the Industrial Commission of Ohio for a scheduled examination on 1/3/03." Thereafter, Dr. Lutz noted that claimant underwent no surgical procedures related to the allowed conditions and that his treatment involved extended chiropractic care. Dr. Lutz opined that claimant's allowed conditions had reached maximum medical improvement and he assessed a five percent whole person impairment. Dr. Lutz also completed a physical strength rating form and indicated that claimant was capable of performing physical work activities at a sedentary level. {116} 6. Relator requested permission to depose Dr. Lutz because Dr. Lutz did not list or refer to any medical records that he reviewed at the time of his evaluation, failed to opine that he accepted the findings and conclusions of the examining physicians, and sought to explore the disparity between Dr. Lutz's opinion that claimant had a five percent whole person impairment in spite of the fact that claimant had received an award of 20 percent permanent partial impairment. {117} 7. The deposition of Dr. Lutz took place on August 19, During the deposition, Dr. Lutz was asked to explain what symptoms might be experienced by a person with arthritis at C5-6 and C6-7. Dr. Lutz indicated the most common symptoms would be localized pain in the involved area of the neck which may be severe enough to encroach upon the nerves and cause radicular type symptoms with pain and numbness in the arms. Dr. Lutz was also asked whether or not the symptoms which Dr. Spears indicated claimant experienced were consistent with claimant's allowed conditions. Dr. Lutz responded in the affirmative. Counsel then asked Dr. Lutz whether or not it would be difficult for a person experiencing the symptoms of which claimant complained to perform work-related activities. Dr. Lutz responded that activities over a certain weight would be difficult; however, Dr. Lutz continued to opine that sedentary work would still be possible, at the lower range of lifting, provided that repetitive work was not troublesome. In this regard, Dr. Lutz indicated that only certain types of repetitive work would be difficult, but that desk work with repetitive use of the fingers may not aggravate the condition. Dr. Lutz further indicated that he did accept Dr. Spears' physical findings but that he did not agree with Dr. Spears' ultimate conclusion. {118} 8. An employability assessment was prepared by Robert A. Mosley. Based upon the report and deposition of Dr. Lutz, Mosley opined that claimant could perform the following jobs: "Assembler semi-conductor, Sorter, Ticker taker, Surveillance system monitor." Mosley noted further that claimant's age of 71 was a negative factor, that his 11th grade education with additional training in gas and diesel engine repair and his ability to read, write and perform basic math were sufficient to meet basic demands of entry-level occupations. Further, Mosley noted that relator's prior work 8/4/2009

49 Casemaker - OH - Case Law - Search - Result Page 4 of 6 indicated that he would be able to meet the basic demands of entry-level occupations. { 19} 9. A vocational file review was prepared by Michael T. Farrell, Ph.D. Based upon his review of the medical reports and claimant's advanced age, residual physical impairment, limited education, and lack of transferable work skills, that claimant would be permanently and totally disabled. { 20} 10. Claimant's motion for PTD compensation was heard before a staff hearing officer ("SHO") on April 5, 2005, and was denied. The SHO relied upon the medical report and deposition of Dr. Lutz as well as the vocational report and addendum of Mosley. With regard to the nonmedical disability factors, the SHO concluded: The Staff Hearing Officer finds that the injured worker was 71 years of age at the time the application for Permanent and Total Disability Compensation was filed, had an 11th grade formal education and work experience as industrial cleaner, maintenance mechanic, bottle packing machine cleaner, bottle packer, gas station cashier, instalfation power unit tender, and diesel mechanic. The Staff Hearing Officer finds that the injured worker's age would have prevented him from participating in formal programs aimed at academic remediation. The Staff Hearing Officer further finds that the injured worker's age was a negative reemployment factor in that it would have made it difficult for him to compete with younger individuals for available positions. However, the Staff Hearing Officer finds that age alone would not preclude the injured worker from performing gainful employment. The Staff Hearing Officer further finds that the injured worker's 11th grade formal education with the reported ability to read, write, and perform basic mathematics was sufficient to enable him to access entry-level unskilled jobs. The Staff Hearing Officer further finds that the injured worker's varied work history demonstrated his ability to perform work from skifled to unskilled work levels in different work environ-ments. Considering the injured worker's age, education, and work experience in conjunction with his ability to perform sedentary employment, the Staff Hearing Officer finds that the injured worker would have been capable of performing the occupations noted in the vocational report of Mr. Mosley, such as: semi conductor assembler, sorter, ticket taker, and surveillance system monitor. {121} 11. Thereafter, relator herein, claimant's widow, filed the instant mandamus action. Conclusions of Law: {122} In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, relator must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141. A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76. On the other hand, 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. (1987), 29 Ohio St.3d 56. Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder. State ex rel. Teece v. Indus. Comm. (1981), 68 Ohio St.2d 165. {123} The relevant inquiry in a determination of permanent total disability is claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic v. Indus. Comm. (1994), 69 Ohio St.3d 693. Generally, in making this determination, the commission must consider not only medical impairments but, also, the claimant's age, education, work record and other relevant nonmedical factors. State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. Thus, a claimant's medical capacity to work is not dispositive if the claimant's nonmedical factors foreclose employability. State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315. The commission must also specify in its order what evidence has been relied upon and briefly explain the reasoning for its decision. State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203. {124} In this mandamus action, relator contends that the commission abused its discretion by relying upon the report of Dr. Lutz. Relator asserts that Dr. Lutz's deposition testimony contradicted statements which he made in his report. As such, relator contends the report of Dr. Lutz is equivocal and cannot constitute "some evidence" upon which the commission could rely. For the reasons that follow, this magistrate disagrees. {125} It is undisputed that equivocal medical opinions do not constitute evidence upon which the commission can 8/4/2009

50 . Casemaker - OH - Case Law - Search - Result rage, ui u rely. It is further undisputed that, when a doctor repudiates his former opinion, that report likewise does not constitute some evidence upon which the commission can rely. However, the magistrate disagrees with relator's characterization of Dr. Lutz's deposition testimony as repudiating his report. {126} In State ex rel. Eberhardt v. Fixible Corp. (1994), 70 Ohio St.3d 649, 657, the Supreme Court of Ohio summarized the distinction between the ambiguous, equivocal and repudiated reports as follows: ***[E]quivocal medical opinions are not evidence. See, also, State ex rel. Woodard v. Frigidaire Div., Gen. Motors Corp. (1985), 18 Ohio St.3d 110 ***. Such opinions are of no probative value. Further, equivocation occurs when a doctor repudiates an earlier opinion, renders contradictory or uncertain opinions, or fails to clarify an ambiguous state-ment. Ambiguous statements, however, are considered equivocal only while they are unclarified. [State ex rel. Paragon v. Indus. Comm. (1983), 5 Ohio St.3d 72.] Thus, once clarified, such statements fall outside the boundaries of [State ex rel. Jennings v. Indus. Comm. (1982), 1 Ohio St.3d 101], and its progeny. Moreover, ambiguous statements are inherently different from those that are repudiated, contradictory or uncertain. Repudiated, contradictory or uncertain statements reveal that the doctor is not sure what he means and, therefore, they are inherently unreliable. Such statements relate to the doctor's position on a critical issue. Ambiguous statements, however, merely reveal that the doctor did not effectively convey what he meant and, therefore, they are not inherently unreliable. Such statements do not relate to the doctor's position, but to his communication skills. If we were to hold that clarified statements, because previously ambiguous, are subject to Jennings or to commission rejection, we would effectively allow the commission to put words into a doctor's mouth or, worse, discount a truly probative opinion. Under such a view, any doctor's opinion could be disregarded merely because he failed on a single occasion to employ precise terminology. In a word, once an ambiguity, always an ambiguity. This court cannot countenance such an exclusion of probative evidence. {1127} Contrary to relator's assertions, the magistrate finds that the report of Dr. Lutz and his deposition testimony are not inconsistent or equivocal. Although when asked, Dr. Lutz did admit that the symptoms allegedly experienced by claimant could make certain sedentary employment more difficult, nowhere in his deposition testimony did he indicate that he had changed his opinion as to whether or not claimant was capable of performing some sustained remunerative employment at a sedentary level. Further, Dr. Lutz indicated that he did accept the findings of Dr. Spears. As such, the magistrate finds that relator has not demonstrated that Dr. Lutz's deposition testimony contradicted or otherwise rendered equivocal or ambiguous his earlier report. Furthermore, to the extent that relator also argues that the vocational report of Mosley did not constitute some evidence upon which the commission could rely, this argument is based upon relator's contention that Dr. Lutz's opinion was contradicted. As such, the magistrate finds that the vocational report of Mosley did constitute some evidence upon which the commission could rely. { 28} Questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder. Teece. It is immaterial whether other evidence, even if greater in quality and/or quantity, supports a decision contrary to the commission's. State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373. So long as the commission's decision is supported by some evidence, mandamus relief is not appropriate. { 29} Based on the foregoing, it is this magistrate's conclusion that relator has not demonstrated that the commission abused its discretion in denying claimant's application for PTD compensation and this court should deny relator's request for a writ of mandamus. STEPHANIE BISCA BROOKS, MAGISTRATE NOTICE TO THE PARTIES Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53 (D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b). OH 8/4/2009

51 OAC OHIO ADMINISTRATIVE CODE 28 `r industrial injury pays less than the former job it is not a"direct result" of his injury within the meaning of the workers' compensation statute: State ex rel. TulHs v. City Asphalt & paving Co., 80 OS3d 364, 1997 Ohio 110, 686 NE2d 516, 1997 Ohio LEXIS (1998) Denial of wage loss compensation was unlawful where there was no evidence that elaimant was worldng less than the maximum medically permitted hours at his former full-time job and lost a part-time job as a result of an allowed accident: State ex rel. DiRosa v. Indus. Comm., 84 OS3d 56, 1998 Ohio 685, 701 NE2d 991, 1998 Ohio LEXIS (c) "Medium work" means exerting twenty to fifty pounds of force occasionally, and/or ten to twenty-five pounds of force frequently, and/or greater than negligible up to ten pounds of force constantly to move objects. Physical demand requirements are in excess of those for light worlc. (d) "Heavy work" means exerting fifty to one hundred pounds of force occasionally, and/or twenty to fifty pounds of force frequently and/or ten to twenty pounds of force constantly to move objects. Physical demand requirements are in excess of those for mework. dium Permanent total disability. one )red hundred pounds of force occsionally, and/or i (A) Purpose excess of fifty pounds of force frequently, and/or in The purpose of this rule is to ensure that applications excess of twenty pounds of force constantly to move for compensation for permanent total disability are objects. Physical demand requirements are in excess of processed and adjudicated in a fair and timely manner. those for heary work. This rule applies to the adjudication of all applications (3) Vocational factors: for compensation for permanent and total disability (a) "Age" shall be determined at time of the adjudiffied on or after the effective date of this rule. cation of the application for permanent and total (B) Definitions disability. In general, age refers to one's chronological The following definitions shall apply to the adjudica- age and the extent to which one's age affects the ability tion of all applications for permanent and total disabil- to adapt to a new work situation and to do work in ity: competition with others. (1) "Permanent total disability" means the inability (b) "Education" is primarily used to mean formal to perform sustained remunerative employment due to schooling or other training wlnch contributes to the the allowed conditions in the claim. ability to meet vocat3onal requirements. The numerical The purpose of permanent and total disability ben- grade level may not represent one's actual educational efits is to compensate an injured worker for impair- abilities. If there is no other evidence to contradict it, ment of eaming capacity. the numerical grade level will be used to determine The terin "permanent" as applied to disability under educational abilities. the workers' compensation law does not mean that (i) "Illiteracy" is the inability to read or write. An such disability must necessarily continue for the life of injured worker is considered illiterate if the injured the injured worker but that it will, within resonable worker can not read or write a simple message, such s probability, continue for an indefinite period of time instructions or an inventory list, even though the without any present indication of recovery therefrom. person can sign his or her name. (2) Classification of physical demands of work: (ii) "Marginal education" means sixth grade level or (a) "Sedentary work" means exerting up to ten less. An injured worker will have ability in reasoning, pounds of force occsionally (occasionally: activity or arithmetic, and language sldlls whicb are needed to do condition exists up to one-third of the time) and/or a simple unsldlled types of work. GeneraIly, formal negligible amount of force frequently (frequently: ac- schooling at sixth grade level or less is marginal tivity or condition exists from one-third to two-thirds of education. the time) to lift, carry, push, pull, or otlierwise move (iii) "Limited education" means seventh grade level objects. Sedentary work involves sitting most of the through eleventh grade level. Limited education means time, but may involve walldng or standing for brief ability in reasoning, arithmetic and language skills but periods of time. Jobs are sedentary if walldng and not enougb to allow a an injured worker with these standing are required only occasionally and all other educational qualifications to do most of the more sedentary criteria are met. complex job duties needed in semi-skilled or skilled (b) "Light work" means exerting up to twenty jobs. Generally, seventh grade through eleventh grade pounds of force occsionally, and/or up to ten pounds formal education is limited education. of force frequently, and/or a negligible amount of force (iv) "High school education or above" means twelfih constantly (constantly: activity or condition exists two- grade level or above, The G.E.D. is equivalent to high thirds or more of the time) to move objects. Physical school education. High school education or above demand may be only a negligible amount, a job should means ability in resoning, arithmetic, and language be rated light work: (1) when it requires walking or skills acquired through formal schooling at twelfth standing to a significant degree; or (2) when it requires grade education or above. Generally an individual with sitting most of the time but entails pushing and/or these educational abilities can perform semi-skille,d pulling or ann or leg controls; and/or (3) when the job through skiiled work. requires working at a production rate pace entailing the (c) "work experience"; constant pusliing and/or pulling of materials even (i) Unskilled work" is work which needs little or no though the weight of those materials is negligible. judgment to do simple duties that can be leamed on Appendix 5

52 the job in a short period of time. The job may or may not require considerable strength. Jobs are unskilled if the primary work duties are handling, feeding, and off bearing (placing or removing materials from machines which are automatic or operated by others), or machine tending and a person can usually leam to do the job in thirtydays and little specific vocationalpreparation and judgment are needed. ^(ii) "Semi-skilled work" is worlc which needs some sldlls but does not require doing the more complex work duties. Semi-skilled jobs may require close attention to watching machine processes or inspecting, testing, or otherwise looking for irregularities or tending or guarding equipment, property, material, or persons against loss, damage, or injury and other types of activities which are similarly less complex than sldlled work but more complex than unskilled work. A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly in a repetitive task. (iii) "Skilled work" is worlc which requires qualifications in which a person uses judgment or involves dealing with people, factors or figures or substantial ideas at a bigh level of complexity. Skilled work may require qualifications in which a person uses judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, orquantity to be produced. Skilled work may require laying out work, estimating quality, determine the suitability and needed quantities of materials, making precise measurements, reading blue prints or other specifications, or making necessary computations or mechanical adjustments or control or regulate the work. (iv) "Transferability of sldlls" are skills which can be used in other work activities. Transferability will depend upon the similarity of occupational work activities that have been performed by the an 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 occupatlon, other past occupations, and the sldlls and abilities acquired through past employment which demonstrate the type of work the injured worlcer 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 sldlls are to be addressed by the adjudicator. (4) "Residual functional capacity" means the maximum degree to which the injured worker has the capacity for sustained performance of the physicalmental requirements of jobs as these relate to the allowed conditions in the claim(s). (5) "Maxintum medical improvement" is a treatment plateau (static or well-stabilized) at which no fundamental functional or physiological change can be expected within reasonable medical probability in spite of continuing medical or rehabilitative procedures. An CLAIMS PROCEDURES OAC injured worker may need supportive treatment to maintain this level of function. (C) Processing of applications for permanenttotal disability The following procedures shall apply to applications for permanent total disability that are filed on or after the effective date of this role. (1) Each application for permanent total disability shall be accompanied by medical evidence from a physician, or a psychologist or a psychiatric specialist in a claim that has been allowed for a psycbiatric or psychological condition, that supports an application for permanent and total disability compensation. The medical examination upon which the report is based must be performed within twenty-four months prior to the date of filing of the application for permanent and total disability compensation. The medical evidence used to support an appllcation for permanent total disability compensation is to provide an opinion that addresses the injured worker's physical and/or mental limitations resulting from the allowed conditions in the claim(s). Medical evidence which provides an opinion addressing such limitations, but which also contains a conclusion as to whether an injured worker is permanently and totally disabled, may be considered by a hearing officer. A vocational expert's opinion, by itself, is insuffrcientto support an application for permanent total disability compensation. If the application for permanent total disability is filed without the required medical evidence, it shall be dismissed without hearing. (2) At the time the application for permanent total disability compensation is filed with the industrial commission, the industrial commissionshall serve a copy of the application together with copies of supporting documents to the employer's representative (if the employer is represented), or to the employer (if the employer is not represented) along with a letter acknowledging the receipt of the permanent total disability application. (3) A claims examiner shall initially review the application for permanent and total disability. (a) If it is determined there is a written agreement to award permanent total disability compensation entered into between the injured worker, the employer, and the administrator in claims involving state fund employers, the application shall be adjudicated, and an order issued, without a hearing. (b) If it is determined that the injured worker is requesting a finding of permanent total disabilitycompensation under division (C) of section of the Revised Code (statutory permanent and total disability), the application shall be adjudicated in accordance with paragraph (E) of this role. (c) If a motion requesting recognition of additional conditions is filed on or prior to the date of filing for permanent total disability compensation, such motion(s) shall be processed prior to the processing of the application for permanent total disability compensation. However, if a motion for recognition of an additional condition is filed subsequent to the date of filing of the application of permanent total disability, the motions shall be processed subsequent to the

53 OAC OHIO ADMINISTRATIVE CODE 30 determination of the application for permanent total disability compensation. (4)(a) The injured worker shall ensure that copies of medical records, information, and reports that the injured worker intends to introduce and rely on that are relevant to the adjudication of the application for permanent total disability compensation from physicians who treated or consulted the injured worker that may or may not have been previously filed in the workers' compensation claim files, are contained within the file at the time of filing an application for perinanent total disability. (b) The employer shall be provided fourteen days after the date of the industrial commission acknowledgment letter provided for in paragraph (C)(2) of this rule to notify the commission if the employer intends to submit medical evidence relating to the issue of permanent total disability compensation to the commission. Should the employer make such written notification the employer shall submit such medical evidence to the commission within sixty days after the date of the commission aclmowledgment letter unless relief is provided to the employer under paragraph (C)(4)(d) of this rule. Should the employer fail to make such written notification within fourteen days after the date of the commission acknowledgment letter, the employer shall be provided sixty days after the date of the commission acknowledgement letter to submit medical evidence relating to the issue of permanent total disability compensation to the commission, but the scheduling of the injured worker for appropriate medical examinations by physicians selected by the commission under paragraph (C)(5)(a)(iii) of this rule will proceed without delay. (c) If the injured worker or the employer has made a good faith effort to obtain medical evidence described in paragraph (C)(4)(a) or (C)(4)(b) of this rule and has been unable to obtain such evidence, the injured worker or the employer may request that the hearing administrator issue a subpoena to obtain such evidence. Prior to the issuance of a subpoena, the hearing administrator shall review the evidence submitted by the injured worker or the employer that demonstrates the good faith effort to obtain medical evidence. Should a subpoena be issued, it shall be served by the party requesting the issuance of a subpoena. (d) Upon the request of either the injured worker or the employer and upon good cause shown, the hearing administrator may provide an extension of time, to obtain the medical evidence described in paragraphs (C)(4)(a) and (C)(4)(b) of this role. Thereafter, no further medical evidence will be admissible other than additional medical evidence approved by a hearing administrator that is found to be newly discovered medical evidence that is relevant to the issue of permanent total disability and wbicb, by due diligence, could not have been obtained under paragraph (C)(4)(a) or (C)(4)(b) of this rule. (5)(a) Following the date of filing of the permanent and total disability apphcation, the claims examiner shall perform the following activities: (i) Obtain all the claim files identified by the [injured worker] on the permanent total disability application and any additional claim files involving the same body part(s) as those claims identified on the permanent total disability application. (ii) Copy all relevant documents as deeined pertinent to the by the commission including evidence provided under paragraphs (C)(1) and (C)(4) of this rule and submit the same to an examining physician to be selected by the claims examiner. (iii) Schedule appropriate medical examination(s) by physician(s) to be selected by the commission provided that the scheduling of said exams shall not be delayed where the employer fails to notify the commission within fourteen days after the date of the commission acknowledgment letter that it intends to submit medical evidence to the commission relating to the issue of permanent total disability compensation. (iv) Prepare a statement of facts. A copy of the stateinent of facts shall be mailed to the parties and their representatives by the cominission. (6)(a) After the reports of the commission medical examinations have been received, the hearing administrator may refer the claim to an adjudicator to consider the issuance of a tentative order, without a hearing. (i) Within fourteen days of the receipt of the tentative order adjudicating the merits of an application for compensation for permanent and total disability, a party may file a written objection to the order. Unless the party notifies the commission in writing of the objection to the tentative order within fourteen days after the date of receipt of notice of the findings of the tentative order, the tentative order shall become final. (ii) In the event a party inakes written notification to the industrial commission of an objection within fourteen days of the date of the receipt of the notice of findings of the tentative order, the appllcation for compensation for permanent and total disability shall be set for hearing and adjudicated on its merits. (b) If the hearing administrator determines that the case should not be referred for consideration of issuance of a tentative order by an adjudicator, the hearing administrator shall notify the parties to the claim that a party has fourteen days from the date that copies of reports of the commission medical examinations are submitted to the parties within which to make written notification to the commission of a party's intent to submit additional vocational information to the commission that is relevant to the adjudication of the application for permanent total disability compensation. (i) Unless a party notifies the cominission within the aforementioned fourteen-day period of the party's intent to submit additional vocational information to the cominission, a party will be deemed to have waived its ability to submit additional vocational information to the commission that is relevant to the adjudication of the apphcation for permanent total disability. (ii) Should a party provide timely notification to the cominission of its intent to submit additional vocational information, the additional vocational information shall

54 be submitted to the commission within forty-five days from the date the copies of the reports of commission medical examinations are submitted to the parties. Upon expiration of the forty-five day period no further vocational information will be accepted without prior approval from the hearing administrator. (7) If the employer or the injured worker request, for good cause shown, that a pre-hearing conference be scheduled, a pre-hearing conference shall be set. The request for a pre-hearing conference shall include the identification of the issues that the requesting party desires to be considered at the pre-hearing conference. The hearing administrator may also schedule a prehearing conference when deemed necessary on any matter concerning the processing of an application for permanent and total disability, including but not limited to, motions that are filed subsequent to the filing of the application for permanent and total disability. Notice of a pre-hearing conference is to be provided to the parties and their representaflves no less than fourteen days prior to the pre-hearing conference. The pre-hearing conference may be by telephone conference call, or in-person at the discretion of the hearing administrator and is to be conducted by a hearing administrator. The failure of a party to request a pre-hearing conference or to raise an issue at a pre-hearing conference held under paragraph (C)(8) of this rule, does not act to waive any assertion, argument, or defense that may be raised at a hearing held under paragraphs (D) and (E) of this rule. (8) Should a pre-hearing conference be held, the hearing administrator is not limited to the consideration of the issues set forth in paragraphs (C)(8)(a) through(c)(8)(i) of this rule, but may also address any other matter concerning the processing of an application for permanent total disability. At a pre-hearing conference the parlies should be prepared to discuss the following issues: (a) Evidence of retirement issues. (b) Evidence of refusal to work or evidence of refusal or failure to respond to written job offers of sustained remunerative employment. (c) Evidence of job description. (d) Evidence of rehabilitation efforts, (e) Exchange of accurate medical history, including surgical history. (f) Agreement as to allowed condition(s) in the claim. (g) Scheduling of additional medical examinations, if necessary. (h) Ensure that deposition requests that have been granted pursuant to industrial commission rules are completed and transcripts submitted. (i) Settlement status. (9) At the conclusion of the pre-hearing conference, a date for hearing before a staff hearing officer shall be scheduled no earlier than fourteen days subsequent to the date of a pre-hearing conference. After the prehearing conference, unless authorized by the hearing administrator, no additional evidence on the issue of permanent and total disability shall be submitted to the CLAIMS PROCEDURES OAC claim file. If the parfles attempt to submit additional evidence on the issue of permanent and total disability, the evidence will not be admissible on the adjudication of permanent total disability compensation. (10) The time frames established herein in paragraph (C) of this rule can be waived by mutual agreement of the parties by motion to a hearing administrator, except where otherwise specified. (11) The applicant may dismiss the application for permanent and total disability any time up to the determination of the hearing on the merits of the application. Should a party dismiss an application prior to its adjudication, the commission's medical evidence obtained will be valid twenty-four months from the date of dismissal, (D) Guidelines for adjudication of applications for permanent total disability The following guidelines shall be followed by the adjudicator in the sequential evaluation of applications for permanent total disability compensation: (1)(a) If the adjudicator finds that the injured worker meets the definition of statutory permanent and total disability pursuant to division (C) of section of the Revised Code, due to the loss or loss of use of both hands orboth arms, or both feet or both legs, or both eyes, or any two thereof, the injured worker shall be found permanently and totally disabled, and a tentative order shall be issued. Should an objection be filed from a tentative order, a hearing shall be scheduled. (Reference paragraph (E) of this rule). (b) If, after hearing, the adjudicator finds that the injured worker is engaged in sustained remunerative employment, the injured worker's application for permanent and total disability shall be denied, unless an injured worker qualifies for an award under division (C) of section of the Revised Code. (c) If, after hearing, the adjudicator finds that the injured worker is medically able to return to the former position of employment, the injured worker shall be found not to be permanently and totally disabled. (d) If, after hearing, the adjudicator finds that the injured worker voluntarily removed Iumself 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 worlcer's medical condition at or near the time of removal/retirement. (e) If, after hearing, the adjudicator finds that the injured worker is offered and refuses and/or fails to accept a bona fide offer of sustained remunerative employment that is made prior to the pre-hearing conference described in paragraph (C)(9) of this rule where there is a written job offer detailing the specific physical/mental requirements and duties of the job that are within the physical/mental capabilities of the injured worker, the injured worker shall be found not to be permanently and totally disabled. (f) If, after hearing, the adjudicator fmds that the injured worker's allowed medical condition(s) is temporary and has not reached maximum medical im-

55 OAC OHIO ADMINISTRATIVE CODE 32 provement, the injured worker shall be found not to be The non-medical factors that are to be reviewed are permanently and totally disabled because the condition the injured worker's age, education, work record, and remains temporary. In claims involving state fund all other factors, such as physical, psychological, and employers, the claim shall be referred to the adininis- sociological, that are contained within the record that trator to consider the issuance of an order on the might be important to the determination as to whether question of entitlement to temporary total disability the injured worker may return to the job market by compensation. In claims involving self-insured employ- using past employment skills or those sldlls which may ers, the self-insured employer shall be notified to be reasonably developed. (Vocational factors are deconsider the question of the injured worker's entitle- fined in paragraph (B) of this rule). ment to temporary total disability compensation. (c) If, after hearing and review of relevant vocational (g) If, after hearing, the adjudicator determines that evidence and non-medical disability factors, as dethere is appropriate evidence which indicates the scribed in paragraph (D)(2)(b) of this rule the adjudiinjured worker's age is the sole cause or primary cator finds that the injured worker can return to obstacle which serves as a significant impediment to sustained remunerative employment by using past reemployment, permanent total disability compensa- employment skiils or those skills which may be reasontion shall be denied. However, a decision based upon ably developed through retraining or through rehabilage must always involve a case-by-case analysis. The itation, the injured worker shall be found not to be injured worker's age should also be considered in permanently and totally disabled. conjunction with other relevant and appropriate as- (3) Factors considered in the adjudication of all pects of the injured worker's nonmedical profile. applications for permanent and total disability: (h) If, after hearing, the adjudicator finds that the (a) The burden of proof shall be on the injured allowed condition(s) is the proximate cause of the worker to estabhsh a case of permanent and total injured worker's inability to perform sustained remu- disability. The burden of proof is by preponderance of nerative employment, the adjudicator is to proceed in the evidence. The injured worker must establish that the sequential evaluation of the application for perma- the disability is permanent and that the inability to nent and total disability compensation in accordance work is causally related to the allowed conditions. with the provisions of paragraph (D) of this rule. (b) In adjudicating an appllcation for permanent and However, should the adjudicator finds that non-al- total disability, the adjudicator must determine that the lowed conditions are the proximate cause of the injured disability is permanent, the inabillty to work is due to worker's inability to perform sustained remunerative the allowed conditions in the claim, and the injured employment, the injuredworker shall be found not to worker is not capable of sustained remunerative embe permanently and totally disabled. ployment. (i) If, after hearing, the adjudicator finds that in- (c) The industrial commission has the exclusive aujured worker's inability to perform sustained remuner- thority to determine disputed facts, the weight of the ative employment is the result of a pre-existing condi- evidence, and credibility. tion(s) allowed by aggravation, the adjudicator is to (d) All medical evidence of impairment shall be continue in the sequential evaluation of the application based on objective findings reasonably demonstrable for perinanent total disability compensation in accor- and medical reports that are submitted shall be in dance with the provisions of paragraph (D) of tliis rule. conformity with the industrial commission medical However, should the adjudicator find that the non- examination manual, allowed pre-existing condition(s) are the proximate (e) If the adjudicator concludes from evidence that cause of the injured worker's inability to perform there is no proximate causal relationship between the sustained remunerative employment, the injured industrial injury and the inability to work, the order worker shall be found not to be permanently and totally shall clearly explain the reasoning and basis for the disabled. decision. (2)(a) If, after hearing, the adjudicator finds that the (f) The adjudicator shall not consider the injured medical impairment resulting from the allowed condi- worker's percentage of permanent partial impairment tion(s) in the claim(s) prohibits the injured worker's as the sole basis for adjudicating an application for return to the former position of employment as well as permanent and total disability. prohibits the injured worker from perforining any (g) The adjudicator is to review all relevant factors in sustained remunerative employment, the injured the record that may affect the injured worker's ability worker shall be found to be permanently and totally to work. disabled, without reference to the vocational factors (h) The adjudicator shall prepare orders on a case by listed in paragraph (B)(3) of this rule. case basis which are fact specific and which contain the (b) If, after hearing, the adjudicator finds that the reasons explaining the decision. The ordersmust speinjured worker, based on the medical impairment cifically state what evidence has been reliedupon in resulting from the allowed conditions is unable to reaching the conclusion and explaisthebasis for the return to the former position of employment but may decision. In orders that are issued underparagraphs be able to engage in sustained remunerative employ- (D)(2)(b) and (D)(2)(c) of this rule the adjudicator is to ment, the non-medical factors shall be considered by specifically list the non-medical disabilityfactorswithin the adjudicator. the order and state how such factorsinteract with the

56 CODE OF ETHICS OAC medical impairment resulting from the allowed injuries in the claim in reaching the decision. (i) In claims in which a psychiatric condition has been allowed and the injured worker retains the physical abihty to engage in some sustained remunerative employment, the adjudicator shall consider whether the allowed psychiatric condition in combination with the allowed physical condition prevents the injured worker from engaging in sustained remunerative employment. (E) Statutory permanent total disability Division (C) of section of the Revised Code provides that the loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, constitutes total and permanent disability. (1) In all claims where the evidence on file clearly demonstrates actual physical loss, or thepermanent and total loss of use occurring at the time of injury secondary to a traumatic spinal cord injury or head injury, of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, the claim shallbe referred to be reviewed by a staff hearing officer of the commission. Subsequent to review,thestaff hearing officer shall, without hearing, enter a tentative order finding the injured worker to be entitled to compensation for permanent and total disability under division (C) of section of the Revised Code. If an objection is made, the claim shall be scheduled for hearing. (a) Within thirty days of the receipt of the tentative order adjudicating the merits of an apphcation for compensation for permanent and total disabihty, a party may file a written objection to the order. Unless the party nohfies the industrial commission in writing of the objection to the tentative order within thirty days after the date of receipt of notice of the findings of the tentative order, the tentative order shall become final. (b) In the event a party makes written notification to the industrial commission of an objection within thirty days of the date of the receipt of the notice of findings of the tentative order, the application for compensation for permanent and total disability shall be set for hearing and adjudicated on its merits. (2) In all other cases filed under division (C) of section of the Revised Code, if the staff hearing officer finds that the injured worker meets the definition of statutory permanent and total disability pursuant to division (C) of section of the Revised Code, due to the loss of use of both hands or both arms, orboth feet or both legs, or both eyes, or any two thereof, the staff hearing officer, without a hearing, is to issue a tentative order finding the injured worker to be permanently and totally disabled under division (C) of section of the Revised Code. An objection to the tentative order may be made pursuant to paragraphs (E)(1)(a) and (E)(1)(b) of this rule. HISTORY: Effective: 06/01/2008. R.C review dates: 02/11/2008 and 02/01/2012. Promulgated Under: Statutory Authority: , , Rule amplifies: , Prior Effective Dates: 6/1/95, 9/15/95, 1/1/97, 4/1/04. NOTES: Editor's Note: The bracketed language in subsection (C)(5)(a)(i) was added by the publisher for purposes of clarity. Case Notes And OAG (2001) PTD granted: State ex rel. Turbine Engine Components Textron, Inc. v. Indus. Comm., 93 OS3d 156, 2001 Ohio 1296, 753 NE2d 189, 2001 Ohio LEXIS Section CI-IAPTER CODE OF ETHICS Code of ethics, title and rules covering Policy Standards of conduct Posting, distribution and employee acknowledgement and receipt Purpose: ellminattng outside influence; producing impartiallty in handling of claims and employer risk accounts and avoiding favoritism Fuxnishing einployees' code of ethics and rules on impmper influence to representatives Representatives' responsibility relative to employees' code of ethics Remedial action against persons exercising improper influence and engaging in favoritism Prohibition against unnecessary claim file possession Standards of conduct for adjudicators Code of ethics, title and rules covering. This rule and rules numbered to and to of the Administrative Code shall be titled, "Code of Ethics for Employees of the Bureau of Workers' Compensarion and the Industrial Commission of Ohio" and shall contain the code of ethics for employees of these agencies. HISTORY: Effective: RC review Dates: Promulgated Under: Policy. (A) It is essential that the public has confidence in the administration of the industrial commission and the bureau of workers' compensation. This public confidence depends in a large degree on whether the public trusts that employees of these agencies are impartial, fair, and act only in the interest of the people, uninfluenced by any consideration of self-interest, except those inherent in the proper performance of their duties. Each employee, of whatever position, should, therefore, maintain the highest standards of personal integrity, since the public often judges the actions of an