The opinion
[Cite as State ex rel. Franta v. Indus. Comm., 2021-Ohio-1501.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Cindy Franta, :
Relator, :
No. 19AP-530
v. :
(REGULAR CALENDAR)
Industrial Commission of Ohio et al., :
Respondents. :
D E C I S I O N
Rendered on April 29, 2021
Agee Clymer Mitchell & Portman, and Frederic A. Portman,
for relator.
Dave Yost, Attorney General, and Lauren A. Kemp, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
BROGAN, J.
{¶ 1} Relator, Cindy Franta, commenced on August 14, 2019 this original action
seeking a writ of mandamus to compel respondents, Industrial Commission of Ohio
("commission") and Columbus City Schools, to set aside an order denying relator
permanent total disability ("PTD") compensation and to enter an order granting such
benefits.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who issued a decision on December 2, 2020,
including findings of fact and conclusions of law, which is appended hereto. The magistrate
concluded the commission's determination to deny relator PTD compensation is supported
No. 19AP-530 2
by the opinion of Todd Finnerty, Psy.D., addressing relator's psychological conditions.
Therefore, the magistrate recommended this court deny the writ.
{¶ 3} Relator filed an objection to the magistrate's decision challenging the use of
Dr. Finnerty's report as evidence to support the commission's order denying PTD
compensation. Pursuant to Civ.R. 53(D)(4)(d), this court is tasked with ruling on relator's
objections by "undertak[ing] an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and appropriately applied
the law." Loc.R. 13(M)(1). We "may adopt or reject a magistrate's decision in whole or in
part, with or without modification." Civ.R. 53(D)(4)(b); Loc.R. 13(M)(1). Having
conducted an independent review of the matter raised in relator's objection, we find the
magistrate properly determined the writ should be denied.
I. Mandamus Standard
{¶ 4} Mandamus relief is appropriate only if the relator establishes "a clear legal
right to the relief requested, a clear legal duty on the part of the commission * * * to provide
the relief, and the lack of an adequate remedy in the ordinary course of the law." State ex
rel. Baker v. Indus. Comm. of Ohio, 143 Ohio St.3d 56, 2015-Ohio-1191, ¶ 12. "In matters
before it, the commission is the exclusive evaluator of the weight and credibility of the
evidence." State ex rel. Navistar, Inc. v. Indus. Comm. of Ohio, __ Ohio St.3d __, 2020-
Ohio-712, ¶ 13; Ohio Adm.Code 4121-3-34(D)(3)(c) (stating that in adjudicating all
applications for PTD compensation, "[t]he industrial commission has the exclusive
authority to determine disputed facts, the weight of the evidence, and credibility").
Therefore, to be entitled to an extraordinary remedy in mandamus, the relator must
demonstrate, by clear and convincing evidence, the commission " 'abused its discretion by
entering an order not supported by any evidence in the record.' " Navistar at ¶ 13, quoting
State ex rel. WFAL Constr. v. Buehrer, 144 Ohio St.3d 21, 2015-Ohio-2305, ¶ 12.
II. Analysis
{¶ 5} Relator objects to the magistrate's determination that Dr. Finnerty's report is
"some evidence" to support the commission's decision to deny her PTD compensation
relating to her allowed psychological conditions. (Obj. at 2.) To relator, Dr. Finnerty's
report "evidentiarily supports the Relator's restrictions and unlikelihood of finding
'sustained and remunerative employment,' such that the Industrial Commission[']s
No. 19AP-530 3
reliance on this report is demonstrative of an unlawful abuse of discretion." (Obj. at 3.) We
disagree.
{¶ 6} Permanent total disability is defined in the Ohio Administrative Code as "the
inability to perform sustained remunerative employment due to the allowed condition(s)
in the claim(s.)" Ohio Adm.Code 4121-3-34(B)(1). As stated by the Supreme Court of Ohio
in State ex rel. Bonnlander v. Hamon, 150 Ohio St.3d 567, 2017-Ohio-4003, ¶ 15:
Work is "sustained" if it consists of an ongoing pattern of
activity. State ex rel. Kirby v. Indus. Comm., 97 Ohio St.3d
427, 2002-Ohio-6668, ¶ 10, 780 N.E.2d 275, citing State ex rel.
Schultz v. Indus. Comm., 96 Ohio St.3d 27, 2002-Ohio-3316, ¶
63, 770 N.E.2d 576. To be considered sustained, work need not
be regular or daily but may be intermittent and occasional,
State ex rel. McDaniel v. Indus. Comm., 118 Ohio St.3d 319,
2008-Ohio-2227, 889 N.E.2d 93, and it may be part-time,
State ex rel. Toth v. Indus. Comm., 80 Ohio St.3d 360, 362,
1997-Ohio-108, 686 N.E.2d 514 (1997). Thus, the
commission's analysis in a permanent-total-disability case
must focus on whether the claimant is capable of sustained
remunerative employment. State ex rel. Lawson v. Mondie
Forge, 104 Ohio St.3d 39, 2004-Ohio-6086, ¶ 16, 817 N.E.2d
880.
If a claimant is capable of sustained remunerative employment, PTD compensation should
be denied. Ohio Adm.Code 4121-3-34(B)(1) and (D)(3)(b). See Bonnlander at ¶ 20.
{¶ 7} Here, as set forth in more detail in the magistrate's decision, the commission
found relator "retains the ability to perform sedentary employment which involves a static
set of tasks without fast pace or frequent change and entails only interaction with a small
number of others briefly, superficially and infrequently." (Stip. at 32.) The commission
recognized that "there are a number of sedentary jobs in the workforce which do not
necessitate significant interaction with co-workers or the general public" and that relator's
age and demonstrated intelligence are "indicative of her ability to obtain sedentary work
either in the home environment or in a relatively sheltered office setting which would be
compatible with her claim related restrictions." (Stip. at 32.) The commission's order
denying PTD compensation was based on Dr. Finnerty's report regarding her allowed
psychological conditions—depressive disorder and generalized anxiety disorder—as well as
No. 19AP-530 4
another physician's report related to her allowed physical conditions that is not contested
or at issue here.
{¶ 8} Relator does not challenge Dr. Finnerty's assessment of relator's
psychological conditions or his conclusions as to the limitations on work. Instead, relator
argues, essentially, that PTD compensation is clearly warranted due to the "unlikelihood of
finding 'sustained and remunerative employment' " considering those limitations in Dr.
Finnerty's report. (Obj. at 3, citing Dr. Finnerty's report at 9.) Relator questions whether
it is "even possible" to find an employer who will accommodate such limitations. (Obj. at
2.)
{¶ 9} As a preliminary consideration, relator provides this court with no legal
authority to support her position that the unlikelihood of a claimant finding an employer
that will accommodate certain work limitations is dispositive to the commission's
determination of PTD compensation. Regardless, even if that were the case, she merely
presents her own opinion of her likeliness to find such employment, which is not sufficient
to meet the standard in mandamus to establish " 'a clear legal right to the relief requested.'
" Navistar, 2020-Ohio-712, at ¶ 13, quoting Baker, 2015-Ohio-1191, at ¶ 12.
{¶ 10} Moreover, the central question here is "whether the claimant is capable of
sustained remunerative employment." (Emphasis added.) Bonnlander, 2017-Ohio-4003,
at ¶ 15. Ohio Adm.Code 4121-3-34(B)(1) and (D)(3)(b). To that end, Dr. Finnerty's report
provided an evidentiary basis for the commission to deny PTD compensation. Dr. Finnerty
opined relator's allowed psychological conditions had attained maximum medical
improvement. Considering a range of assessment tools, including those cited by relator in
her objection, Dr. Finnerty concluded that in four functional areas (daily functioning; social
functioning; concentration, persistence, and pace; and adaptation), relator exhibited
"[m]oderate impairment" of 31 percent. (Stip. at 18.) Dr. Finnerty further indicated that
as a result of his interview, review of the record, and examination of relator, she could
"sustain a static set of tasks without fast pace or frequent changes which may exacerbate
maladaptive responses to stress" and "[s]he can interact with a small number of others
briefly, superficially and infrequently." (Stip. at 19.)
{¶ 11} We agree with the magistrate's assessment that Dr. Finnerty's report is
internally consistent, unequivocal, and "some evidence" on which the commission could
No. 19AP-530 5
rely to conclude relator is capable of sustained remunerative employment. Bonnlander at
¶ 11. As a result, relator has not met its burden in mandamus to demonstrate, by clear and
convincing evidence, the commission " 'abused its discretion by entering an order not
supported by any evidence in the record.' " Navistar at ¶ 13, quoting WFAL Constr., 2015-
Ohio-2305, at ¶ 12. Because relator has not established " 'a clear legal right to the relief
requested, a clear legal duty on the part of the commission * * * to provide the relief, and
the lack of an adequate remedy in the ordinary course of the law,' " relief in mandamus in
this case is inappropriate. Navistar at ¶ 13, quoting Baker a ¶ 12.
III. Conclusion
{¶ 12} Having independently reviewed the objected matters, we find the magistrate
properly determined the factual issues and appropriately applied the law. Pursuant to
Civ.R. 53(D)(4), we adopt the decision of the magistrate as our own, including the findings
of fact and the conclusions of law. In accordance with the magistrate's recommendation,
we deny relator's request for a writ of mandamus.
Writ of mandamus denied.
DORRIAN, P.J., and MENTEL, J., concur.
BROGAN, J., retired, of the Second Appellate District, assigned
to active duty under authority of the Ohio Constitution, Article
IV, Section 6(C).
_________________
No. 19AP-530 6
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Cindy Franta, :
Relator, :
v. : No. 19AP-530
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on December 2, 2020
Agee Clymer Mitchell & Portman, and Frederic A. Portman,
for relator.
Dave Yost, Attorney General, and Lauren A. Kemp, for
respondent.
IN MANDAMUS
{¶ 13} Relator, Cindy Franta, brings this original action seeking a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to set aside its order
denying relator's application for permanent total disability ("PTD") benefits, and enter an
ordering granting such benefits.
Findings of Fact:
{¶ 14} 1. Relator worked as an elementary school teacher for respondent Columbus
City Schools.
{¶ 15} 2. In 2010, relator suffered injuries in the course of and arising out of her
employment when relator leaned backwards in a seat that lacked back support and fell.
No. 19AP-530 7
{¶ 16} 3. Relator's claim was allowed for sprain lumbar regions; substantial
aggravation of pre-existing degenerative disc disease at L5-S1; S1 radiculopathy; depressive
disorder; generalized anxiety disorder. (Stip. at 31.)
{¶ 17} 4. Relator filed her PTD application on November 8, 2018.
{¶ 18} 5. Relator's education, as stated on her application for PTD benefits and
elsewhere in the record, reflects a master's degree in education obtained from Ashland
University in 2002. Previous employment included a time as a preschool administrator and
ten years with Columbus City Schools as an elementary school math teacher. Relator's PTD
application also describes some significant basic computer skills.
{¶ 19} 6. In connection with relator's PTD application, the commission obtained an
examination of relator by Dr. James Natalie to assess relator's allowed physical conditions.
Dr. Natalie concluded that relator has reached maximum medical improvement ("MMI"),
and was physically capable of performing sedentary work with an accommodation for her
allowed physical conditions.
{¶ 20} 7. Relator then was examined by Todd Finnerty, Psy.D., to evaluate relator's
allowed psychological conditions. Dr. Finnerty reported relator's chief complaint as
depression and anxiety following her work injury, lack of energy, and inability to get things
done. Dr. Finnerty reviewed past treatment and relator's history of pain management and
anti-depressant medication. Pursuant to his examination, Dr. Finnerty observed no signs
of intoxication, use of illegal substances, or alcohol. Relator was appropriately groomed
with no obvious hygiene problems and maintained a cooperative attitude throughout the
interview. Relator sat through the entire examination and did not demonstrate signs of
physical discomfort, such as shifting in her chair or difficultly getting up or sitting down.
{¶ 21} 8. With respect to mood and affect, Dr. Finnerty observed as follows:
MOOD AND AFFECT: She had a full range affect. She did not
cry or become tearful, but her eyes did become moist at times.
She was able to smile at times and she also smiled
uncomfortably at times. There were not dark circles observed
under her eyes. There were some minor signs of anxiety and
tension observed but not substantial signs of facial reddening,
sweating or significant motor tension. She was able to complete
sentences without any substantial stammering or signs of
nervousness. She was not observed to have any significant
respiratory changes associated with anxiety. She did have some
No. 19AP-530 8
reduced eye contact at times, but not to a substantial degree,
and she was also able to make eye contact with the examiner.
Her hands were often folded together in her lap, but she was
not observed to wring her hands or grip them together tightly.
SPEECH: The injured worker's speech was 100% intelligible.
THOUGHT CONTENT, PERCEPTUAL
DISTURBANCES, THOUGHT PROCESS: The injured
worker did not evidence any signs of psychosis or mania. She
denied experiencing hallucinations. She did not appear
paranoid or to be experiencing any delusions. There were no
signs of compulsive behavior or responding to obsessive
thoughts. When asked if she's experienced hallucinations she
stated "No-I believe in ghosts though." She reported that she
was "not sure" if she's ever seen a ghost but she has "seen
something out of the corner of my eye" or "when a dog barks
for no reason or a spoon falls in the sink for no reason" she
thinks it may be a sign of a ghost.
COGNITION: She was able to function effectively as her own
historian and followed the conversation appropriately. There
were no significant concentration difficulties observed in the
interview. She appears to have adequate cognitive abilities. She
was asked to complete serial 7's (subtracting 7 from 100 and
each subsequent response); she made one error in five
subtractions but quickly self-corrected her answer without
prompting. She was asked to remember five words after a delay
that included interference from other cognitive tasks. She
remembered three without assistance but required hints for the
other two words before remembering them.
INSIGHT & JUDGMENT: There was no indication that she
would not be able to manage her own affairs in her own best
interest.
{¶ 22} 9. Dr. Finnerty then reviewed relator's responses on a patient health
questionnaire, an assessment tool known as the Beck Depression Inventory, which placed
her in the severe depression range, and the Generalized Anxiety Disorder 7-item scale, in
which relator reported daily nervousness, anxiety and worry.
{¶ 23} 10. Drawing on these assessment tools, Dr. Finnerty concluded that in four
functional areas, relator exhibited moderate impairment of 31 percent and daily
No. 19AP-530 9
functioning, social functioning, concentration, persistence and pace, and adaptation. (Stip.
at 18.)
{¶ 24} 11. In conclusion, Dr. Finnerty found that relator had reached MMI with
respect to her allowed psychological conditions. Dr. Finnerty concluded that relator could
"sustain a static set of tasks without fast pace or frequent changes which may exacerbate
maladaptive responses to stress. She can interact with a small number of others briefly
superficially and infrequently." (Stip. at 20.)
{¶ 25} 12. Before filing her PTD application, relator requested participation in Ohio
Bureau of Workers' Compensation ("BWC") vocational rehabilitation program. The
application was rejected because relator had no current work restrictions and was not
receiving current compensation. (Supp. Stip. at 57-58.)
{¶ 26} 13. Relator's PTD application was heard before a staff hearing officer
("SHO") in April 2019, who relied upon the reports of Drs. Natalie and Finnerty to find that
relator was medically and psychologically capable of sedentary work as described by Dr.
Finnerty, with limitations. The SHO relied on Dr. Finnerty's report and concluded that
relator's age of 53, advanced education, significant computer skills, and positive work
history were significant factors for denying PTD. The SHO concluded that "[b]ecause the
Injured Worker has the residual capacity to return to employment consistent with the
restrictions identified by Dr. Natalie and Dr. Finnerty, and because she is qualified by age,
education and work history to obtain and perform work at that level, the Staff Hearing
Officer concludes the Injured Worker is capable of performing sustained remunerative
employment." (Stip. at 32.)
{¶ 27} 14. Relator filed her complaint in mandamus with this court on August 14,
2019.
Discussion and Conclusions of Law:
{¶ 28} To demonstrate her right to a writ of mandamus, relator must demonstrate a
clear legal right to the relief sought, a clear legal duty on the part of respondent to grant the
relief, and the absence of an adequate remedy in the ordinary course of the law. State
ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). The commission is the exclusive
evaluator of weight and credibility, and as long as some evidence supports the commission's
decision, the reviewing courts will defer to its judgment. State ex rel. LTV Steel Co. v. Indus.
No. 19AP-530 10
Comm., 88 Ohio St.3d 284, 287 (2000). Even where contrary evidence is presented at the
administrative hearing, as long as the commission heard some evidence supporting its
findings, its findings will not be deemed an abuse of discretion. State ex rel. Commercial
Lovelace Motor Freight, Inc. v. Lancaster, 22 Ohio St.3d 191, 193 (1986).
{¶ 29} For the following reasons, the magistrate concludes the commission did not
abuse its discretion and its determination in denying PTD is supported by some evidence.
{¶ 30} Relator does not challenge in this case the commission's right to disregard
the conflicting medical evidence submitted by relator, or the commission's reliance on Dr.
Natalie's report addressing her allowed physical conditions. Relator challenges only the
commission's reliance on Dr. Finnerty' s opinion regarding her psychological condition and
his conclusion that she can participate and engage in sustained remunerative employment.
Relator asserts that Dr. Finnerty's opinion is "unreasonable and should not be considered
'some evidence.'" (Relator's brief at 11.)
{¶ 31} Dr. Finnerty's opinion is detailed, internally consistent, and unequivocal in
its conclusions. Relying on this evidence, the SHO determined that relator could perform
tasks consistent with limitations described by Dr. Finnerty, which were not negligible and
reflected Dr. Finnerty's thorough assessment of relator's condition. Based upon Dr.
Finnerty's report, the SHO concluded relator could perform sedentary work in a home
environment or a relatively sheltered office setting and, thus, was not incapable of sustained
remunerative employment. The SHO's conclusion is both consistent with the medical
evidence relied upon, which comprised some evidence upon which the commission could
base its decision. The magistrate discerns no abuse of discretion on the part of the
commission in entering its order.
{¶ 32} It is therefore the decision and recommendation of the magistrate that the
court deny relator's requested writ of mandamus.
/S/ MAGISTRATE
MARTIN L. DAVIS
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),
No. 19AP-530 11
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).