State ex rel. Kent State Univ. v. Indus. Comm.

[Cite as State ex rel. Kent State Univ. v. Indus. Comm., 2016-Ohio-1032.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Kent State University, :

Relator, :

v. : No. 15AP-416

Industrial Commission of Ohio, : (REGULAR CALENDAR)

John Daugintis, and Eagle Pump &

Equipment, Inc., :

Respondents. :

D E C I S I O N

Rendered on March 15, 2016

On brief: Amer Cunningham Co. LPA, and Thomas M.

Saxer, for relator.

On brief: Michael DeWine, Attorney General, and Shaun P.

Omen, for respondent Industrial Commission of Ohio.

On brief: Nager, Romaine & Schneiberg Co. LPA, Jerald A.

Schneiberg, Jennifer L. Lawther, Daniel A. Kirschner, and

Stacey M. Callen, for respondent John A. Daugintis.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.

{¶ 1} Kent State University ("Kent State") filed this action in mandamus seeking a

writ to compel the Industrial Commission of Ohio ("commission") to vacate its order

awarding permanent total disability ("PTD") to John Daugintis.

{¶ 2} In accordance with Loc.R. 13(M), the case was referred to a magistrate to

conduct proceedings. The parties stipulated the pertinent evidence and filed briefs. The

magistrate then issued a magistrate's decision, which contains findings of fact and

No. 15AP-416 2

conclusions of law. The magistrate's decision includes a recommendation that we deny

the request for a writ.

{¶ 3} Counsel for Kent State has filed objections to the magistrate's decision,

which are:

A. The Magistrate's Decision effectively places the burden of

proof on Relator to prove Claimant is not permanently and

totally disabled in violation of Ohio Administrative Code

§4121-3-34(D)(3)(a).

B. There was competent medical evidence presented that

Claimant is not permanently and totally disabled from his

allowed physical conditions.

{¶ 4} At this stage of the proceedings we, as an appellate court, are not dealing

with burden of proof issues. We are instead evaluating whether or not some evidence

supports the decision of the commission to award PTD compensation. The commission

has already done the weighing and has determined that an award of PTD compensation is

appropriate given the injuries suffered by Daugintis and the application of the disability

factors.

{¶ 5} The first objection, labeled "A," is overruled.

{¶ 6} The second objection is likewise without merit. The issue at this stage of the

proceedings is not whether competent credible evidence would have supported a different

outcome of the proceedings before the commission, but whether some evidence supported

the award of PTD compensation. Some evidence clearly did support the award.

{¶ 7} The second objection, labeled "B," is overruled.

{¶ 8} Both objections having been overruled, we adopt the findings of fact and

conclusions of law in the magistrate's decision. As a result, we deny the request for a writ

of mandamus.

Objections overruled;

writ of mandamus denied.

BROWN and LUPER SCHUSTER, JJ., concur.

_________________

No. 15AP-416 3

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Kent State University, :

Relator, :

v. : No. 15AP-416

Industrial Commission of Ohio, : (REGULAR CALENDAR)

John Daugintis, and Eagle Pump &

Equipment, Inc., :

Respondents. :

MAGISTRATE'S DECISION

Rendered on December 21, 2015

Amer Cunningham Co. LPA, and Thomas M. Saxer, for

relator.

Michael DeWine, Attorney General, and Shaun P. Omen, for

respondent Industrial Commission of Ohio.

Nager, Romaine & Schneiberg Co LPA, Jerald A.

Schneiberg, Jennifer L. Lawther, and Daniel A. Kirschner,

for respondent John A. Daugintis.

IN MANDAMUS

{¶ 9} In this original action, relator, Kent State University ("Kent State" or

"relator"), requests a writ of mandamus ordering respondent, Industrial Commission of

Ohio ("commission"), to vacate the January 29, 2015 order of the commission that

exercised R.C. 4123.52 continuing jurisdiction over the October 20, 2014 order of its staff

hearing officer ("SHO") that had denied the application for permanent total disability

No. 15AP-416 4

("PTD") compensation filed by respondent, John Daugintis, and to enter an order

reinstating the October 20, 2014 SHO's order.

Findings of Fact:

{¶ 10} 1. John Daugintis ("claimant") has two industrial claims corresponding to

injuries that occurred in 1996 and 2006.

{¶ 11} 2. On June 27, 1996, claimant injured his right shoulder, left foot, and left

elbow while employed as a shop manager for respondent, Eagle Pump & Equipment,

Inc., a state-fund employer. The industrial claim (No. 96-417416) is allowed for:

Contusion right shoulder; sprain of left foot; right shoulder

tendonitis; tear right rotator cuff; localized, primary

osteoarthritis, right shoulder; lateral epicondylitis left elbow

epicondyle.

{¶ 12} 3. On June 5, 2006, claimant injured his left shoulder while employed as a

laborer for Kent State. The industrial claim (No. 06-386334) is allowed for:

Subscapularis tear left shoulder; left shoulder impingement

synovitis; supraspinatus tendonitis left shoulder; bicipital

tenosynovitis, left; depressive psychosis/moderate.

{¶ 13} 4. On July 31, 2013, at claimant's request, he was examined by

psychologist Raymond D. Richetta, Ph.D. In his five-page narrative report, Dr. Richetta

opined:

Mr. Daugintis struggles to cope with daily life. He is negative,

disinterested, and poorly motivated. These qualities are all

symptoms of the allowed depression. He has little social

interest and is not comfortable with the general public. His

concentration is limited. He would be unable to relate to co-

workers or supervisors. He could not remember and follow

more than very simple instructions. His sleep problems

preclude his maintaining a regular schedule; he could not be

at work at a consistent time. He would be unable to tolerate

vocational rehabilitation. Mr. Daugintis is permanently end

totally disabled from engaging in any form of sustained

remunerative employment due to the allowed Major

Depressive Disorder, Single Episode, Moderate.

{¶ 14} 5. On January 28, 2014, claimant filed an application for PTD

compensation. In support, claimant submitted the report of Dr. Richetta.

No. 15AP-416 5

{¶ 15} 6. The PTD application form asks the applicant to list his or her industrial

claims. In response, claimant listed the claim numbers for his 1996 and 2006 claims.

{¶ 16} 7. On March 19, 2014, at the request of Kent State, claimant was examined

by Douglas C. Gula, D.O. Dr. Gula examined only for the allowed physical conditions of

the 2006 claim. In his seven-page report, Dr. Gula opined:

In summary, it is my opinion Mr. Daugintis is not

permanently and totally disabled as he would be capable of

working in some capacity. In addition, on examination today

the claimant was able to think, speak and communicate

clearly indicating cognitively he could work in some capacity.

This information is based upon review of the medical records

and independent medical examination performed.

{¶ 17} 8. Earlier, on March 15, 2014, at the request of Kent State, claimant was

examined by psychologist Mark Querry, Ph.D., who examined only for the allowed

psychological condition of the 2006 claim. In his seven-page narrative report, Dr.

Querry opines:

Overall, the percentage of whole person impairment based

on the allowed psychological condition in this claim from a

purely psychological point of view is 4 (four) %, far from

being permanently and totally disabled from a psychological

point of view.

{¶ 18} 9. On May 2, 2014, at the commission's request, claimant was examined

by psychologist James M. Lyall, Ph.D. In his six-page narrative report, Dr. Lyall

reviewed four functional areas: (1) activities of daily living, (2) social functioning, (3)

concentration, persistence, and pace, and (4) adaptation to stress.

In his narrative report, under "Discussion," Dr. Lyall opined:

Utilizing the AMA Guidelines for Impairment Due To Mental

and Behavioral Disorders, Second and Fifth Edition we see

mild impairment in all functional areas, due to the claimant's

depressive symptoms. This, of course, takes into account

some exaggeration seen on the SIMS profile. This mild

impairment would fall at Class 2 and yield fifteen percent

(15%) impairment due exclusively to the psychological

condition to the whole body.

No. 15AP-416 6

{¶ 19} 10. On a commission form captioned "Occupational Activity

Assessment[,] Mental & Behavioral Examination," Dr. Lyall indicated by his mark that

he agreed with the following pre-printed statement: "This Injured Worker is capable of

work with the limitation(s) / modification(s) noted below."

{¶ 20} In the space provided, Dr. Lyall wrote in his own hand:

The claimant's impairment is mild at 15% for his depression

disorder. This level, in and of itself, would not inhibit a

return to work. He should avoid hi[gh] stress, hi[gh] pace

jobs.

{¶ 21} 11. On May 5, 2014, at the commission's request, claimant was examined

by orthopedic surgeon Sheldon Kaffen, M.D. Dr. Kaffen examined for all the allowed

physical conditions of both industrial claims.

{¶ 22} In his eight-page narrative report, Dr. Kaffen opines:

It is my medical opinion based on the history, physical

examination and review of the medical documentation that

Mr. Daugintis is capable of sedentary work activity with the

further limitations of no activities requiring any repetitive

motion of the shoulders, lifting more than 5 pounds with

either upper extremity, no use of the [sic] both shoulders

above chest level.

{¶ 23} 12. On a "Physical Strength Rating" form dated May 5, 2014, Dr. Kaffen

indicated by his mark that claimant is capable of "SEDENTARY WORK."

{¶ 24} 13. At claimant's request, vocational expert Mark A. Anderson prepared a

five-page narrative report dated July 6, 2014. In his report, Anderson concluded

"[t]here would be no transferable skills developed from any of his past work activities to

the sedentary level of exertion." Anderson also noted that claimant had been "away

from [the] competitive work force (6 years)." Anderson concluded:

The Vocational Diagnosis and Assessment of Residual

Employability confirms that Mr. Daugintis is not employable

in the local, state or national economies. Based on his

physical and emotional limitations and age, Mr. Daugintis is

not a feasible candidate for vocational rehabilitation.

{¶ 25} 14. At Kent State's request, vocational expert Howard L. Caston, Ph.D.,

prepared a 15-page report dated July 8, 2014. In his report, Dr. Caston opines:

No. 15AP-416 7

[A]fter an analysis of all of the available medical and

vocational information that has been reviewed and identified

in this report, it is my opinion based on a reasonable degree

of vocational certainty that Mr. Daugintis is capable of

engaging in employment. It is my opinion to a reasonable

degree of vocational certainty that based on the effects of the

allowed claim Mr. Daugintis is capable of performing jobs

that include building maintenance and repair and other less

strenuous jobs such as telemarketing, call center customer

service representative, modified cashiering and other similar

jobs within the functional capacities outlined by the

independent examiners.

{¶ 26} 15. Following an October 20, 2014 hearing, an SHO mailed an order on

October 28, 2014 denying the PTD application.

{¶ 27} The SHO's order of October 20, 2014 states reliance upon the reports of

Drs. Gula, Querry, Lyall, and Caston. Following a lengthy discussion of each report, the

SHO's order concludes with a discussion of the non-medical disability factors. In that

regard, the SHO's order states:

Based on the fact that the Injured Worker cannot be deemed

permanent and totally disabled based solely on the allowed

physical and psychological conditions in this claim, a

discussion of the Injured Worker's non-medical disability

factors is in order.

The Hearing Officer finds that the Injured Worker's age is 61,

which places him approximately four years from the normal

retirement age of 65. The Hearing Officer finds that the

Injured Worker's age is a neutral factor and him obtaining

entry-level positions [sic].

The Hearing Officer further finds that the Injured Worker's

education consisted of graduation from high school with no

other schooling or training. The Injured Worker testified at

hearing that he can read, write and do some math, and as far

as his occupation is concerned, he worked in the

maintenance departments at a hospital, for a pump

company, and also worked in maintenance at the Kent State

University.

The Hearing Officer finds that the Injured Worker did not

supervise anyone at his jobs and that as indicated, he did not

have any other occupations. The Hearing Officer finds that

the Injured Worker's job duties are to be a negative factor in

No. 15AP-416 8

that he was involved in heavy duty maintenance work and

that he did not have any clerical duties. Based on Dr.

Caston's report, the Injured Worker has the opportunity to

be in maintenance, facility maintenance technician, a

maintenance supervisor, or an Outbound Call Center.

Based on the medical documentation in file from Dr. Gula,

examining the Injured Worker on the allowed physical

conditions, the report of Mark Querry, Ph.D., and the report

of James Lyall, Ph.D., examining the Injured Worker on the

allowed psychological condition, including the Vocational

Assessment report of Howard Caston, Ph.D., of 07/08/2014,

that the Injured Worker's request for a finding of permanent

and total disability, is DENIED, and the Injured Worker is

not deemed permanently and totally disabled.

(Emphasis sic.)

{¶ 28} 16. On November 12, 2014, claimant moved for reconsideration of the

SHO's order of October 20, 2014 based upon the commission's continuing jurisdiction

under R.C. 4123.52.

{¶ 29} Among the grounds claimant articulated for reconsideration is the

following:

The SHO order also relies on the March 19, 2014 report of

Dr. Gula to support the denial of the PTD application. Dr.

Gula's report only considers the allowed conditions in the

2006 claim. The reliance in the SHO order of the March 19,

2014 report of Dr. Gula is not proper as that report does not

address all of the allowed conditions.

{¶ 30} 17. On December 12, 2014, the commission mailed an interlocutory order,

stating:

The Injured Worker's Request for Reconsideration, filed

11/12/2014, from the Staff Hearing Officer order, issued

10/28/2014, is referred to the Commission Level Hearings

Section to be docketed before the Members of the Industrial

Commission. The issues to be heard are:

1. Issue:

1) Continuing Jurisdiction Pursuant To R.C. 4123.52

2) Permanent Total Disability

No. 15AP-416 9

It is the finding of the Industrial Commission the Injured

Worker has presented evidence of sufficient probative value

to warrant adjudication of the request for Reconsideration

regarding the alleged presence of a clear mistake of law of

such character remedial action would clearly follow, and a

clear mistake of fact in the order from which reconsideration

is sought.

Specifically, it is alleged the Staff Hearing Officer denied

permanent total disability compensation based on a medical

report that does not consider the allowed conditions in all of

the claims that are alleged to be causing disability.

The order issued is vacated, set aside, and held for naught.

Based on these findings, the Industrial Commission directs

the Injured Worker's Request for Reconsideration, filed

11/12/2014, be set for hearing to determine whether the

alleged clear mistake of law and/or fact as noted herein is

sufficient for the Industrial Commission to invoke its

continuing jurisdiction.

In the interest of administrative economy and for the

convenience of the parties, after the hearing on the question

of continuing jurisdiction, the Industrial Commission will

take the matter under advisement and proceed to hear the

merits of the underlying issue(s). The Industrial Commission

will thereafter issue an order on the matter of continuing

jurisdiction under R.C. 4123.52. If authority to invoke

continuing jurisdiction is found, the Industrial Commission

will address the merits of the underlying issue(s).

{¶ 31} 18. Following a January 29, 2015 hearing, the three-member commission,

one commissioner absent, issued an order finding that the SHO's order of October 20,

2014 (mailed October 28, 2014) contains a clear mistake of law and fact:

Specifically, the Staff Hearing Officer did not cite to evidence

that considered the correct allowed conditions from both

claims at issue. Rather, the Staff Hearing Officer relied

exclusively upon the opinion of Douglas Gula, D.O., dated

03/19/2014, for the determination of the Injured Worker's

residual physical capacities; yet, Dr. Gula did not accurately

note and evaluate the allowed conditions in Claim Number

96-417416. Therefore, the Industrial Commission exercises

continuing jurisdiction pursuant to R.C. 4123.52.

No. 15AP-416 10

{¶ 32} The commission then conducted a de novo review. Vacating the SHO's

order mailed October 28, 2014 and awarding PTD compensation, the commission

explained:

It is the order of the Commission that the IC-2, Application

for Compensation for Permanent Total Disability, filed

01/28/2014, is granted. The Commission finds the allowed

conditions, when considered in combination with

nonmedical disability factors, render the Injured Worker

permanently and totally disabled.

This decision is supported by the reports from Raymond

Richetta, Ph.D., dated 07/31/2013, and Sheldon Kaffen,

M.D., dated 05/15/2014. Dr. Richetta opined that

psychological condition renders the Injured Worker

permanently and totally disabled while Dr. Kaffen opined the

physical conditions, from both claims, restrict the Injured

Worker to sedentary work with further restrictions against

any repetitive motion of the shoulders, lifting more than five

pounds with either upper extremity, and no use of the

shoulders above chest level.

The Injured Worker is 61 years old and a high school

graduate with work experience as an HVAC servicer, pump

repair shop manager, and maintenance worker. The

commission finds persuasive the opinion of Mark Anderson,

M.S., C.D.M.S., L.P.C., dated 07/06/2014, who concluded

the Injured Worker has no transferable skills from his

previous work experience and is vocationally limited by his

advancing age, lack of clerical aptitude, and time away from

the competitive work force. The Commission further relies

upon the rehabilitation closure reports dated 01/18/2000

and 05/02/2013. After participating in job search services,

the initial rehabilitation program ended because of medical

instability. More recently, the Injured Worker was deemed

not feasible for services based upon the conclusion from Gail

Klier, M.Ed., C.R.C., C.C.M., dated 04/19/2013, opining the

Injured Worker's prognosis for a return to work is poor.

Permanent total disability compensation shall begin on

07/31/2013, based upon the report of Dr. Richetta of that

date, which supports the award [of] compensation.

{¶ 33} 19. On April 16, 2015, relator, Kent State University, filed this mandamus

action.

No. 15AP-416 11

Conclusions of Law:

{¶ 34} The issue is whether the commission abused its discretion in exercising

continuing jurisdiction to vacate the SHO's order of October 20, 2014 that denied the

PTD application.

{¶ 35} Finding no abuse of discretion, it is the magistrate's decision that this

court deny relator's request for a writ of mandamus, as more fully explained below.

{¶ 36} Continuing jurisdiction is not unlimited. Its prerequisites are (1) new and

changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or

(5) error by inferior tribunal. State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454,

459 (1998); State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990,

¶ 14.

{¶ 37} Ohio Adm.Code 4121-3-34 sets forth the commission's rules regarding the

adjudication of PTD applications.

{¶ 38} Ohio Adm.Code 4121-3-34(C) is captioned "Processing of applications for

permanent total disability." Thereunder, Ohio Adm.Code 4121-3-34(C) currently

provides:

(1) Each application for permanent total disability shall

identify, if already on file, or be accompanied by medical

evidence from a physician, or a psychologist or a psychiatric

specialist in a claim that has been allowed for a psychiatric or

psychological condition, that supports an application for

permanent total disability compensation. * * * The medical

evidence used to support an application 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). * * * If an application for permanent total disability

compensation is filed that does not meet the filing

requirements of this rule, or if proper medical evidence is not

identified within the claim file, the application shall be

dismissed without hearing. Where it is determined at the

time the application for permanent total disability

compensation is filed that the claim file contains the

required medical evidence, the application for permanent

total disability compensation shall be adjudicated on its

merits as provided in this rule absent withdrawal of the

application for permanent total disability compensation.

***

No. 15AP-416 12

(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

permanent total disability.

***

(5)

(a) Following the date of filing of the permanent and total

disability application, 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 deemed pertinent 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.

{¶ 39} Ohio Adm.Code 4121-3-34(D) is captioned "Guidelines for adjudication of

applications for permanent total disability."

Thereunder, Ohio Adm.Code 4121-3-34(D)(2) currently provides:

(a) If, after hearing, the adjudicator finds that the medical

impairment resulting from the allowed condition(s) in the

claim(s) prohibits the injured worker's return to the former

position of employment as well as prohibits the injured

worker from performing any sustained remunerative

employment, the injured worker shall be found to be

permanently and totally disabled, without reference to the

vocational factors listed in paragraph (B)(3) of this rule.

No. 15AP-416 13

(b) If, after hearing, the adjudicator finds that the injured

worker, based on the medical impairment resulting from the

allowed conditions is unable to return to the former position

of employment but may be able to engage in sustained

remunerative employment, the non-medical factors shall be

considered by the adjudicator.

The non-medical factors that are to be reviewed are the

injured worker's age, education, work record, and all other

factors, such as physical, psychological, and sociological, that

are contained within the record that might be important to

the determination as to whether the injured worker may

return to the job market by using past employment skills or

those skills which may be reasonably developed.

{¶ 40} The Supreme Court of Ohio has repeatedly held that, in determining

whether a claimant is permanently and totally disabled, the commission must consider

all the allowed conditions. State ex rel. Johnson v. Indus. Comm., 40 Ohio St.3d 339

(1988). (The claimant's PTD application was supported by a report from psychiatrist,

G.M. Sastry, who found claimant to be permanently totally disabled. The commission

exclusively relied upon a report from Dr. Colquitt, who evaluated only the physical

conditions.) State ex rel. Cupp v. Indus. Comm., 58 Ohio St.3d 129 (1991). (The

"numerous serious conditions" additionally allowed in the claim were not mentioned in

the commission's order nor evaluated by Dr. McCloud upon whom the commission

exclusively relied.) State ex rel. Didiano v. Beshara, 72 Ohio St.3d 255 (1995).

(Claimant's "serious psychiatric condition," major depression, was not evaluated by the

two doctors' reports upon whom the commission relied.) State ex rel. Roy v. Indus.

Comm., 74 Ohio St.3d 259 (1996). (Following the PTD hearing, claimant moved to

amend his claim to include a psychiatric condition. The commission added the

psychiatric claim allowance, but failed to consider it when it denied reconsideration.)

{¶ 41} In State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276 (1993), the

commission failed to list "dysthymic disorder" as an allowed condition in its order

denying PTD compensation. The Zollner court stated:

Claimant's first assertion is grounded in the omission of

"dysthymic disorder" from the enumerated conditions in the

permanent total disability order. Relying on State ex rel.

Johnson v. Indus. Comm. (1988), 40 Ohio St.3d 339, * * *

claimant contends that the omission constitutes an abuse of

No. 15AP-416 14

discretion. Johnson, however, is distinguishable. There, as

here, the commission's order did not list an allowed

psychiatric condition among the allowed conditions.

However, in Johnson, the evidence upon which the

commission relied to deny permanent total disability related

solely to the claimant's physical condition. These two factors

led us to question whether the commission indeed

considered all allowed conditions. The order was accordingly

returned for clarification.

Id. at 277-78.

{¶ 42} In reviewing the SHO's order of October 20, 2014 that was vacated by the

commission, it can again be observed that the order states reliance upon the reports of

Drs. Gula, Querry, Lyall, and Caston.

{¶ 43} At the request of Kent State, Dr. Gula examined only for the allowed

physical conditions of the 2006 claim. Based solely on his examination of the physical

conditions of the 2006 claim, Dr. Gula opined that claimant "is not permanently and

totally disabled as he would be capable of working in some capacity." Dr. Gula never

opined as to the specific capacity that claimant would be able to work.

{¶ 44} At the request of Kent State, Dr. Querry examined for the psychological

condition allowed in the 2006 claim. Dr. Querry opined that the allowed psychological

condition of the 2006 claim did not permanently and totally disable the claimant. Dr.

Querry rated the psychological impairment to be four percent.

{¶ 45} At the commission's request, Dr. Lyall examined for the allowed

psychological condition of the 2006 claim. Dr. Lyall found mild impairment at 15

percent. He further opined that the psychological condition: "would not inhibit a return

to work." However, claimant "should avoid hi[gh] stress, hi[gh] pace jobs."

{¶ 46} At the request of Kent State, Caston prepared a vocational report in which

he opined that claimant "is capable of engaging in employment."

{¶ 47} Ohio Adm.Code 4121-3-34(B) provides for definitions related to the

commission's rules for the adjudication of PTD applications. Thereunder, at Ohio

Adm.Code 4121-3-34(B)(4), the rule provides:

"Residual functional capacity" means the maximum degree

to which the injured worker has the capacity for sustained

No. 15AP-416 15

performance of the physical-mental requirements of jobs as

these relate to the allowed conditions in the claim(s).

{¶ 48} Only the reports of Drs. Gula, Querry, and Lyall relate to residual

functional capacity. The Caston report does not. Dr. Caston is not a physician who is

qualified to render a medical opinion as to residual functional capacity.

{¶ 49} Given the three reports relating to residual functional capacity, we have no

relied upon report that addresses the allowed conditions of the 1996 claim. Again, Dr.

Gula confined his examination solely to the allowed physical conditions of the 2006

claim.

{¶ 50} Given that the SHO failed to rely upon a medical report that addresses the

allowed conditions of the 1996 claim, we have a clear mistake of law. On that basis, the

three-member commission had continuing jurisdiction to vacate the SHO's order which

was a final order not subject to an administrative appeal.

{¶ 51} Here, relator argues that the SHO was not required to consider the allowed

conditions of the 1996 claim because claimant failed to submit medical evidence with his

PTD application that supports a finding that one or more of the allowed conditions of

the 1996 claim cause impairment. Thus, relator concludes that the SHO was justified in

relying solely upon the report of Dr. Gula for the allowed physical conditions to be

considered. Relator cites no authority to support its argument.

{¶ 52} In fact, relator's argument is even broader. Apparently, it is relator's

position that only the psychological condition in the 2006 claim must be considered

because claimant only submitted a report from a psychologist in support of his PTD

application. That is, because claimant only submitted the report of Dr. Richetta in

support of his PTD application, relator argues that none of the physical injuries of either

claim need be considered by the adjudicator.

{¶ 53} As relator puts it:

A review of the evidence submitted establishes that

Claimant's sole basis for PTD benefits is actually limited to

the psychological component of the 2006 Claim involving

Kent.

Claimant only submitted evidence that he is PTD based on

the psychological condition associated with the 2006 Claim.

There was no evidence submitted by Claimant that he is PTD

No. 15AP-416 16

based on his physical injuries, whether from the 1996 Claim

or the 2006 Claim. Only the 2006 Claim is allowed for a

psychological condition. As such, the 2006 Claim can be the

only basis for awarding PTD benefits.

(Relator's Brief, 13.)

{¶ 54} Absent from relator's argument is an analysis of Ohio Adm.Code 4121-3-

34(C) regarding the processing of PTD applications.

{¶ 55} While Ohio Adm.Code 4121-3-34(C)(1) provides that an application can be

dismissed if it is filed without the required medical evidence, nowhere is it even

suggested that the PTD applicant has the duty or burden to submit medical evidence as

to each of the allowed conditions of his industrial claims in order to obtain commission

consideration of all the allowed conditions of his industrial claims.

{¶ 56} Moreover, Ohio Adm.Code 4121-3-34(C)(5) commands that the claims

examiner 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." Thus, the rule

requires the claims examiner to obtain files that the applicant may have failed to identify

on the application.

{¶ 57} Here, on his PTD application, claimant appropriately listed the claim

numbers of both claims in response to the request on the PTD application form.

{¶ 58} Clearly, the SHO had the duty to consider all the allowed conditions of

both industrial claims. Because he did not do so, the exercise of continuing jurisdiction

over his order was appropriate.

{¶ 59} Accordingly, for all the above reasons, it is the magistrate's decision that

this court deny relator's request for a writ of mandamus.

/S/ MAGISTRATE

KENNETH W. MACKE

No. 15AP-416 17

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).