State ex rel. Parker v. Indus. Comm.

[Cite as State ex rel. Parker v. Indus. Comm., 2014-Ohio-2193.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Art Parker, :

Relator, :

v. : No. 13AP-583

Industrial Commission of Ohio : (REGULAR CALENDAR)
and Prenova Inc.,
:
Respondents.
:

D E C I S I O N

Rendered on May 22, 2014

Portman & Foley LLP, and Frederic A. Portman, for relator.

Michael DeWine, Attorney General, and Brian J. Becker, for
respondent Industrial Commission of Ohio.

IN MANDAMUS

BROWN, J.
{¶ 1} Relator, Art Parker, has filed an original action requesting that this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio, to vacate
its order of June 3, 2013, denying relator's application for permanent total disability
compensation, and to enter an order granting said compensation.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending that
No. 13AP-583 2

this court deny relator's request for a writ of mandamus. No objections have been filed to
that decision.
{¶ 3} 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. In accordance with the magistrate's decision, we deny
relator's requested writ of mandamus.
Writ of mandamus denied.

O'GRADY and LUPER SCHUSTER, JJ., concur.

_______________________

APPENDIX A

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Art Parker, :

Relator, :

v. : No. 13AP-583

Industrial Commission of Ohio : (REGULAR CALENDAR)
and Prenova Inc.,
:
Respondents.
:

MAGISTRATE'S DECISION
No. 13AP-583 3

Rendered on February 28, 2014

Portman & Foley LLP, and Frederic A. Portman, for relator.

Michael DeWine, Attorney General, and Brian J. Becker, for
respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶ 4} In this original action, relator, Art Parker, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate the June 3,
2013 order of its staff hearing officer ("SHO") that denies relator's January 16, 2013
application for permanent total disability ("PTD") compensation, and to enter an order
granting the compensation.

Findings of Fact:
{¶ 5} 1. On June 19, 2000, relator injured his lower back when he lost his balance
walking down stairs. On the date of injury, relator was employed as a carpenter for
respondent Prenova Inc., a state-fund employer. The industrial claim (No. 00-432275) is
allowed for:
Sprain lumbar region; aggravation of pre-existing
degenerative joint disease at L-5, S1 (facet arthropathy);
aggravation of pre-existing disc protrusion at L2-L3, L3-4
and L5-S1; L4-5 annular rent; aggravation pre-existing disc
bulge L4-5; L4-5 protruding disc.

{¶ 6} 2. On December 29, 2009, relator underwent lower back surgery performed
by Larry Todd, D.O. In his operative report, Dr. Todd describes the surgical procedures
performed:
[One] Posterior spinal fusion and instrumentation at the L4-
5 and L5-S1 level utilizing Stryker Xia II instrumentation.

[Two] Infuse bone morphogenic protein for the posterior
fusion part of the procedure at the L4-5 and L5-S1 level.

3. On November 9, 2011, treating physician Stephen Altic, D.O., wrote:
No. 13AP-583 4

[H]is condition is stable and not much else is able to be done
in his case and I feel that he is [maximum medical
improvement]. Since I have now stated that he is
permanently totally disabled, I am obviously unable to
continue stating that he is temporarily disabled on a C-84.

{¶ 7} 4. On November 9, 2011, relator filed an application for PTD compensation.
In support, relator submitted the November 9, 2011 report of Dr. Altic
{¶ 8} 5. On January 12, 2012, at the commission's request, relator was
examined by Robin G. Stanko, M.D. In his three-page narrative report, Dr. Stanko
opined:
I feel the claimant could perform activity at sedentary work
levels, that is, lifting up to 10 lbs. with rare bending and
twisting activity.

{¶ 9} 6. On January 12, 2012, Dr. Stanko completed a Physical Strength Rating
form. On the form, Dr. Stanko indicated by his mark that relator is capable of sedentary
work.
{¶ 10} 7. On March 8, 2012, at relator's request, vocational consultant Stephen
Phillips, an employee of Medvopro, issued a six-page narrative report captioned
"Employability Assessment." In his report, Mr. Phillips concludes that relator is unable
to perform sustained remunerative employment. Mr. Phillips explains:
He reports constant pain in his lower back with numbness
and weakness in both legs as well as radiculopathy down the
right lower extremity. His physical limitations have caused
him to do his ADL's at a slower rate. He has to stop and rest.
He requires assistance from his daughters. He can only
engage in an activity for a few minutes and then must rest for
a long period of time. He can drive but only for short
distances. He has to change positions every two hours.

He is in chronic severe pain for which he takes narcotic
medication. This limits his ability to drive to a place of
employment and then engage in work around machinery or
other activities where an altered state of consciousness can
be a safety hazard for themselves or others. Driving is also
difficult and aggravates his conditions. The medication will
also adversely affect cognitive abilities such as problem
solving, focus, attention to detail, and memory. These are
also accentuated by sleep depravation due to being awake a
lot at night due to pain. Lack of restorative sleep places an
No. 13AP-583 5

individual at risk due to a slower reaction time, ability to
concentrate on tasks, and to exercise good judgment in
situations.

His work history is limited to building maintenance repair
which is a medium strength range job in the skilled level. He
has done this work all his life successfully until the date of
injury. The injury drastically changed his physical abilities.
Thus, the positive attributes such as past academic skills,
intelligence, work history, ability to learn, consistent work
history, past learned skills, which served in attaining this
career are now inhibited by the changed circumstances.
Success in the past based on positive attributes can no longer
be a predictor of current status. They are only an indicator of
what worked in the past when he was healthy. As he is no
longer at the same physical functioning level, he must be
evaluated according to his current status and not his past
status. There is no evidence that his education provides for
direct entry into skilled work. There are no jobs existing in
significant numbers in the national economy that he is able
to perform.

***

He does not have the capacity to perform writing or business
correspondence or complex decision making. He presents as
having marked limitations in his ability to do complex tasks
and participate in normal work routine because of his
physical difficulties. He cannot perform within the usual and
customary expectations of a normal work routine; he would
be unable to maintain a consistent pace or to be persistent in
a work like task. His condition precludes his ability to attend
and concentrate or to be productive enough to complete a
normal work routine or to perform at a level commensurate
with production or quota demands.

At the age of 61 he is at a disadvantage in seeking
employment in this day of high unemployment and against
younger able bodied individuals competing for the limited
jobs available, especially in any low strength jobs. Age
discrimination does exist as well as prejudice against
disabled or physically limited individuals. This creates an
additional barrier to employment.

The report by Dr. Robin Stanko MD opining ability to work
in a sedentary capacity when compared to other available
documentation does not present a credible conclusion. The
No. 13AP-583 6

weight of evidence leads to a conclusion of his inability to
sustain remunerative employment.

Per MCO medical management guidelines, an injured worker
is to be periodically evaluated for vocational rehabilitation
services and then offered such services, unless during the
evaluation process, the injured worker is found to be not
eligible or feasible for services. Feasibility as defined by the
BWC Chapter 4 guidelines states, "feasibility for vocational
services means that there is a reasonable probability that the
injured worker will benefit from services at this time and
return to work as a result of these services." There was no
documentation provided that services were offered or turned
down or that he was even informed of the availability of
possible services. He has not been in vocational
rehabilitation in the past and given the facts of the case
would be found non-feasible for services by BWC.

Training is not an option even though he has a high school
education, at his age o[f] 61, length of time since his last
academic experience- 42 years, and lack of information
revealing on-going or recent academic studies, individuals
normally find academic retraining to be very difficult. When
the on-going physical issues and medication issues are
considered it makes training even more difficult. From the
physical standpoint he would have difficulty attending
classes for several hours a day. He is in chronic pain and
even with the ability to change position would not be able to
endure the physical necessity to attend classes. Depression
will also affect motivation and the ability to be self directing
and focus on long term goals of schooling. At this age, the
BWC is not willing to engage in long term training services
and available short term training is above his physical and
psychological capacity.

***

With consideration given to the information on file, the age,
and current physical limitations, it is my opinion based on
the information contained in this report that Art Parker is
limited in his ability to compete in today's labor market. Art
Parker is a very unlikely candidate for any sustained,
remunerative employment.

(Emphasis sic.)
No. 13AP-583 7

{¶ 11} 8. Following a June 4, 2012 hearing, an SHO issued an order denying
relator's PTD application. The SHO's order of June 4, 2012 explains:
The Injured Worker is a 62-year-old male with a high school
diploma, with the last two years of his high school experience
being spent in vocational school. His work experience
consisted of approximately 40 years with the same
Employer, working as a carpenter in building maintenance
repair. The Staff Hearing Officer finds one active claim
relevant to the Injured Worker's pending application for
permanent total disability compensation, claim 00-432275,
which relates to a 06/19/2000 industrial injury that
occurred when he lost his balance while he was descending a
flight of stairs and fell. Treatment under the claim has
included a major lumbar surgery consisting of an L4-5 and
L5-S1 decompressive laminectomy and fusion with cage
implantation and bone graft. Current treatment is
conservative. The Injured Worker testified that he lives
alone, does his own cooking, laundry, and shopping, and
tends to livestock on his property. According to his IC-2
Application and his testimony at hearing, the Injured Worker
last worked in any capacity in December of 2009, leaving the
work force just prior to his lumbar fusion surgery.

Dr. Stanko, a physical medicine and rehabilitation specialist,
examined the Injured Worker on 01/12/2012 with regard to
the allowed conditions of the claim and the permanent total
impairment issue. Based on his examination findings and
review of file documentation, Dr. Stanko concluded that the
Injured Worker is capable of sedentary work activity, with a
limitation against more than rare bending and twisting
activity.

Based on the report from Dr. Stanko, which is persuasive,
the Staff Hearing Officer finds that when only the
impairment arising from the allowed conditions of the claim
is considered, the Injured Worker has the residual functional
capacity to perform sedentary work activity as described in
the report. Furthermore, when his degree of medical
impairment is considered in conjunction with his non-
medical disability factors, the Staff Hearing Officer finds that
the Injured Worker is capable of sustained remunerative
employment and is not permanently and totally disabled.

The Staff Hearing Officer finds that while the Injured
Worker's age is an impediment to his potential for returning
to the workforce, it is not an insurmountable barrier to that
No. 13AP-583 8

potential. Individuals of the Injured Worker's age have
sufficient time to acquire new jobs skills, at least through
informal means such as short-term or on-the-job-training,
that could serve to enhance their potential for re-
employment. In this regard, the Staff Hearing Officer finds
that subsequent to his recovery from and stabilization after
his 2009 surgery, the Injured Worker has not initiated any
contact with the Bureau of Workers' Compensation
Rehabilitation Division with regard to his feasibility for
vocational rehabilitation services, or made any other effort to
re-train or to acquire new skills. As set forth in State ex rel.
Speelman v. Indus. Comm., 73 Ohio App.3d 757, 598 N.E.2d
192 (1992), and more recently in State ex rel. Cunningham v.
Indus. Comm., 91 Ohio St.3d 261, 744 N.E.2d 711 (2001), the
Commission, when considering a claim for permanent total
disability, may consider not only past employment skills, but
also those skills which may reasonably be developed;
accordingly, the Staff Hearing Officer may take into account
the lack of effort by an Injured Worker to pursue new skills
that might have led to a return to employment.

The Staff Hearing Officer finds that the Injured Worker's
high school diploma is a vocational asset with regard to his
re-employment potential, despite the following facts. The
Injured Worker testified to difficulties in reading and writing
due to a diagnosis of dyslexia, indicating that he did not
graduate high school until age 20, after pursuing vocational
classes in machine drafting in order to finish. He further
testified that he never used this vocational training in his
work as a carpenter and in building maintenance and repair.
On his IC-2 Application, however, the Injured Worker
reported no self-limitations with his ability to perform basic
math. Notwithstanding his literacy difficulties, the Injured
Worker had a long and successful career for one Employer as
a carpenter and in building maintenance. The Staff Hearing
Officer finds that the added significance of this finding lies in
the fact that the Injured Worker's work in this capacity is
properly classified at the skilled level of employment, as
indicated in the vocational assessment report from Mr.
Phillips dated 03/08/2012, submitted on the Injured
Worker's behalf. As such, despite his literacy problems, the
Injured Worker was able to learn the skills necessary to
perform skilled work activity successfully for approximately
40 years, presumably through informal means such as short-
term or on-the-job training as opposed to any formal
program. The Staff Hearing Officer finds that on his IC-2
Application, the Injured Worker indicated that his work in
No. 13AP-583 9

carpentry and building maintenance required him to read
work orders, close out work orders, and buy orders. Mr.
Phillips' report further indicates that throughout his career,
the Injured Worker demonstrated average general learning
ability, average verbal aptitude, and average numerical
aptitude, as well as above-average spatial aptitude, form
perception, and manual dexterity. Based on these facts, the
Staff Hearing Officer finds that the Injured Worker was able
to rise above the limitations caused by his reading/writing
difficulties and perform successfully at the skilled level of
employment for approximately 40 years. The Staff Hearing
Officer finds no persuasive evidence on file to support a
finding that the Injured Worker no longer retains his
demonstrated capacity to learn work skills through informal
means. As such, the Staff Hearing Officer finds that the
Injured Worker has sufficient intelligence and aptitudes to
obtain and perform jobs consistent with his claim-related
functional limitations. In addition, the Staff Hearing Officer
specifically rejects that portion of Mr. Phillips' 03/08/2012
vocational assessment report indicating that the Injured
Worker developed no skills from his past work that are
transferable to jobs at the sedentary level; the specific
findings cited above from Mr. Phillips' report regarding his
average and above-average aptitudes contradict such an
opinion.

Finally, the Staff Hearing Officer finds that the Injured
Worker is currently vocationally qualified to obtain and
perform jobs at the sedentary level consistent with Dr.
Stanko's report. The Staff Hearing Officer bases this finding
in part on the Dictionary of Occupational Titles, which
identifies positions [and] the requirements of which fall
within Dr. Stanko's restrictions and for which the Injured
Worker is either qualified or can qualify with minimal
training. In addition, the Staff Hearing Officer finds that the
Injured Worker retains his demonstrated capacity for job
skill acquisition, at least through informal means such as
short-term or on-the-job training, an exercise of which could
serve to widen the scope of employment options available to
him.

Therefore, because the Injured Worker has the residual
functional capacity to perform sedentary work activity as
described by Dr. Stanko in his 01/12/2012 report when only
the impairment arising from the allowed conditions of the
claim is considered, because the Injured Worker is qualified
by age, skilled work history, and demonstrated capacity for
No. 13AP-583 10

job skill acquisition to obtain and perform jobs at that level
as described, and because he retains the capacity to acquire
new skills, at least through informal means, that could serve
to enhance his potential for re-employment, the Staff
Hearing Officer finds that the Injured Worker is capable of
sustained remunerative employment and is not permanently
and totally disabled. Accordingly, the IC-2 Application filed
11/09/2011 is denied.

{¶ 12} 9. In early November 2012, relator was referred to a vocational
rehabilitation program sponsored by the Ohio Bureau of Workers' Compensation
("bureau").
{¶ 13} 10. On December 24, 2012, vocational rehabilitation case manager
Stephen Phillips, signed bureau form RH-21 captioned "Vocational Rehabilitation
Closure Report." The closure report indicated that relator's rehabilitation file was closed
on December 19, 2012. The Stephen Phillips who signed the closure report is the same
person who authored the March 8, 2012 report previously mentioned. In the closure
report, Mr. Phillips states:
He had a vocational evaluat[io]n on 12/14/12 which opined,
"The vocational evaluation indicates a poor prognosis for
successful completion of a vocational rehabilitation plan
ending in job placement. He cannot do SE/SJ or SE/DJ as he
does not have a job to return to. He cannot do DE/SJ as the
POR has opined that he is not capable of performing the
required job duties. He does not have transferable skills
within the sedentary to light strength range. He is not able to
sustain an 8 hour day of work based on the performance
during the assessment. He does possess a high school
diploma and does not have any computer training. However,
based on the achievement scores in reading and math, he
does not have the academic abilities to benefit from training.
He is a very slow reader and reports someone told him he is
dyslexic. He does not have the skills for clerical work. He
would be too slow in production work and he had low
dexterity scores. All his aptitude scores were low and he
evidenced no ability in any of them to indicate possible
success in a job field. He is [i]n chronic pain for which he
takes narcotic medication. He is not a feasible candidate for
vocational rehabilitation services leading to employment."
He graduated from High School in 1970 though he did repeat
two years. He was not in the military. He is in chronic severe
pain for which he takes narcotic medication. This limits his
No. 13AP-583 11

ability to drive to a place of employment and then engage in
work around machinery or other activities where an altered
state of consciousness can be a safety hazard for themselves
or others. Driving is also difficult and aggravates his
conditions. The medication will also adversely affect
cognitive abilities such as problem solving, focus, attention
to detail, and memory. These are also accentuated by sleep
deprivation due to being awake a lot at night due to pain.
Lack of restorative sleep places an individual at risk due to a
slower reaction time, ability to concentrate on tasks, and to
exercise good judgment in situations. His work history is
limited to building repairer. He has done this work all his life
successfully until the date of injury. * * * Training is not an
option. At his age, length of time since his last academic
experience, and lack of information revealing on-going or
recent academic studies, individuals normally find academic
retraining to be very difficult. When the on-going physical
issues and medication issues are considered it makes
training even more difficult. From the physical standpoint he
would have difficulty attending classes for several hours a
day. He is in chronic pain and even with the ability to change
position would not be able to endure the physical necessity to
attend classes. It will also affect motivation and the ability to
be self-directing and focus on long term goals of schooling.
At this age, the BWC is not willing to engage in long term
training services and available short term training is above
his physical and psychological capacity. He is at maximum
medical improvement. Thus no significant improvement can
be expected which will alter his employability potential. The
MCO agrees that he is not appropriate or feasible for
vocational rehabilitation. Feasibility as defined by the BWC
Chapter 4 guidelines states, "feasibility for vocational
services means that there is a reasonable probability that the
injured worker will benefit from services at this time and
return to work as a result of these services." In short he can
not obtain and sustain remunerative employment to which
this case manager agrees.

{¶ 14} 11. On December 24, 2012, Mr. Phillips, acting as disability manager for
WorkReady Ltd., wrote to relator:
Please allow this letter to provide formal notification that
your vocational rehabilitation file has been closed on
12/19/12 for the following reason: you are not feasible for
vocational rehabilitation services leading to employment.
You were referred to WorkRead[y] Ltd. in an effort to offer
you case management services since you meet the eligibility
No. 13AP-583 12

requirements to participate in the Bureau of Workers'
Compensation's (BWC) vocational rehabilitation program.

{¶ 15} 12. On January 14, 2013, Dr. Altic wrote to relator's counsel:

I last evaluated this gentleman on 11/08/2012 and he had
continued unrelenting lumbar axial pain with bilateral lower
extremity radicular pain. While there were as many
inconsistencies in his FCE as reported, this gentleman was
evaluated by vocational rehab and they found him unfeasible
and unable to obtain or sustain gainful remunerative
employment. I certainly agree with that vocational rehab
assessment which is reiteration of my previous statement.
While I have indicated some restrictions on a Medco-14, this
gentleman is obviously not bedridden and is capable of some
degree of function which that Medco-14 reflects. He is simply
not capable of any sustained gainful remunerative
employment.

Therefore, my opinion that I rendered to you of 11/09/2011
is still valid, that this gentleman is so impaired by his lumbar
conditions allowed in this claim which include multilevel
disc issues, 722.2 at L2-L3, L3-L4, L5-S1, as well as 722.10 at
L4-L5, 722.2 L4-L5, and spondylosis 721.3, that he is so
functionally impaired by these conditions and
symptomatically impaired, that he is permanently totally
disabled from all gainful remunerative employment. In fact,
if anything over the past year, his condition has progressed
symptomatically.

{¶ 16} 13. On January 16, 2013, relator filed his second application for PTD
compensation. In support, relator submitted the January 14, 2013 report from Dr. Altic.
Relator also submitted the March 8, 2012 report of Mr. Phillips, the December 19, 2012
closure report signed by Mr. Phillips on December 24, 2012, and Mr. Phillips'
December 24, 2012 letter to relator.
{¶ 17} 14. On April 10, 2013, at the commission's request, relator was examined
by Brian E. Higgins, D.O. In his four-page narrative report, Dr. Higgins opines:
Mr. Parker is capable of sedentary work. He will require
frequent position changes every 10-15 minutes, going from
sitting to standing and reverse. He has limited walking
abilities. He may walk for about 10-15 minutes at a time. He
can exert minimal force up to 10 pounds occasionally with a
negligible amount of pushing.
No. 13AP-583 13

{¶ 18} 15. Dr. Higgins also completed a Physical Strength Rating form. On the
form, Dr. Higgins indicated by his mark that relator is capable of sedentary work. In the
space provided, under the pre-printed query "[f]urther limitations, if needed," Dr. Higgins
wrote in his own hand:
Change position [every] 10-15 min[utes]. Limited working
time.

{¶ 19} 16. Earlier, on October 11, 2012, upon referral of Dr. Altic, relator
underwent a functional capacities evaluation ("FCE") performed by Scott Secrest. In his
two-page narrative report, Mr. Secrest opined:
Mr. Parker's abilities and response to testing were very
typical of client's [sic] with low back injuries. Although he
demonstrates somewhat competitive abilities in isolation, he
demonstrates a marked increase in pain behaviors and
reported symptoms with cumulative tasks, particularly with
sustained sitting or sustained standing.

He demonstrates safe work abilities between the sedentary
and light physical demand level. He meets all of the
requirements for the sedentary level but meets only partial
requirements for the light level (Specific abilities are
identified on page 3 of this report). However, even within a
sedentary-light capacity, Mr. Parker will most certainly
require additional accommodations to allow for regular
postural/positional adjustments between sitting, standing,
and walking.

Therefore, in my overall analysis, Mr. Parker demonstrates
competitive vocational abilities within a Sedentary-Light
physical demand level and with regularly scheduled
opportunities to make positional adjustments between
sitting, standing, and walking.

{¶ 20} 17. Following a June 3, 2013 hearing, an SHO issued an order denying
relator's second PTD application. The SHO's order of June 3, 2013 explains:
The Injured Worker was previously denied permanent total
disability benefits by the Indus. Comm. from a hearing on
06/04/2012. The circumstances from the last application for
permanent total disability compensation are nearly identical
to the present application.
No. 13AP-583 14

The Injured Worker's last application was supported by Dr.
Altic. The current application is supported by Dr. Altic. Dr.
Altic in his report of 01/14/2013 in support of the current
application references his last report of 11/09/2011 and
states the circumstances are still the same, and that his
opinion is still the same. Dr. Altic does state in his report of
01/14/2013 that if anything the Injured Worker's condition
has progressed since his evaluation of the Injured Worker on
11/09/2011. Dr. Altic's statement regarding a "progression"
in the Injured Worker's condition is vague, and provides a
modicum of evidence of a deterioration in the Injured
Worker's condition since the last determination on this issue
from the hearing on 06/04/2012.

Stephen Phillips provided an Employment Assessment
report, dated 03/08/2012 on behalf of the Injured Worker,
in support of the last application. Stephen Phillips, now on
behalf of the Bureau of Workers' Compensation, has
provided an employment assessment report related to the
Injured Worker['s] new application for Permanent Total
Disability. The Staff Hearing Officer in his order of
06/04/2012 referred to Mr. Phillips' 03/08/2012 report and
accepted some of his findings, but the Staff Hearing Officer
by denying the previous application rejected Mr. Phillips'
opinion that the Injured Worker could not return to work.

In light of the fact that both the opinions from Dr. Altic and
Mr. Phillips were implicitly rejected by the Staff Hearing
Officer in his decision denying permanent total disability at
hearing on 06/04/2012, the current reports from Dr. Altic
and Mr. Phillips, expressing virtually identical opinions in
support of the present application as in the last application
for permanent total disability, do not represent credible or
persuasive evidence of new and changed circumstances since
the previous denial of the Injured Worker's application for
permanent total disability compensation.

The only obvious change in the facts since the last
application for permanent total disability was denied is that
the Injured Worker is one year older.

The Staff Hearing Officer in the order of 06/04/2012 relied
upon the 01/12/2012 report from Dr. Stanko. Dr. Stanko at
that time found the Injured Worker was limited to sedentary
work, with a limitation against more than rare bending and
twisting activity. The Injured Worker as regards the present
application was examined by Dr. Higgins on 02/04/2013
No. 13AP-583 15

[sic]. Dr. Higgins states in his report that the Injured Worker
retains the capacity to engage in sedentary work with further
limitations of needing to change positions frequently and
limit his walking to about 10 -- 15 minutes at a time. Dr.
Higgins' findings are found compatible with those previously
found by Dr. Stanko.

A functional capacity evaluation was performed on the
Injured Worker by Scott Secrest on 10/11/2012. Mr. Secrest
states the [sic] the Injured Worker met all the requirements
for sedentary levels of activity and that he had some capacity
to perform light levels of activity. Mr. Secrest concluded,
"Therefore, in my overall analysis, Mr. Parker demonstrates
competitive vocational abilities within a sedentary-light
physical demand level with regularly scheduled
opportunities to make positional adjustments between
sitting, standing and walking."

Based on the reports from Stanko, Higgins, and Secrest, the
Injured Worker is found as related to the allowed conditions
in the claim capable of sedentary work.

The disability factors are the same as were presented in the
last application except, as previously stated, the Injured
Worker is one year older.

The Injured Worker is now 63 years of age. His age is a
negative factor, but it would not prevent the Injured Worker
from working.

The Injured Worker has a high school education. He
reportedly has dyslexia, but this condition has not prevented
the Injured Worker from learning new tasks or from
performing a multiple of various duties in this job as a
carpenter and in building maintenance and repair. The
Injured Worker in his 40 year career in building
maintenance was responsible for maintaining 8 stores. To
understand and maintain this number of buildings, verifies
that the Injured Worker is an intelligent and extremely
capable individual and able to learn a wide variety of
complicated tasks. The Injured Worker stated in his
application that his job required him to read work orders,
close out work orders, and buy orders and pick up materials.
The Injured Worker's past work appears to have required
some sedentary work skills.
No. 13AP-583 16

The Injured Worker because of the work injury is not capable
of the hands on type work that he did in the past, but his
understanding of operations and building materials would
indicate that the Injured Worker could still work in some
type of building maintenance as a manger. His capacity to
understand building operations would appear to more than
compensate for his limitations caused by his dyslexia. In
addition, the Injured Worker would appear to be able to
work in a sedentary capacity in a retail environment advising
customers on the correct materials and tools and
requirements needed to complete any home building project.

Unrelated to building maintenance, the Injured Worker
would appear to have the ability to monitor security cameras,
as long as he had the capacity to change positions on a
frequent basis.

Each application for permanent total disability must be
evaluated on its own merits, but that does not mean that a
final order on the same issue can be disregarded. On
virtually the same evidence as is at issue in the present
application for permanent total disability, a Staff Hearing
Officer on 06/04/2012 found that the Injured Worker was
capable of sustained remunerative employment of a
sedentary nature. The evidence as regards the present
application is virtually the same as that evaluated by the Staff
Hearing Officer on 06/04/2012.

{¶ 21} 18. On July 9, 2013, relator, Art Parker, filed this mandamus action.

Conclusions of Law:
{¶ 22} It is the magistrate's decision that this court deny relator's request for a writ
of mandamus, as more fully explained below.
{¶ 23} Relator's first application for PTD compensation was denied by an SHO
who heard the application on June 4, 2012. Just one year later, on June 3, 2013,
another SHO heard relator's second PTD application. It was indeed appropriate for the
commission, through its SHO of June 3, 2013, to consider the prior denial of PTD
compensation in adjudicating the second PTD application.
{¶ 24} In his June 3, 2013 order, the SHO observed that the circumstances from
the "last" application are "nearly identical" to the "present" application.
No. 13AP-583 17

{¶ 25} Explaining his observation, the SHO of June 3, 2013 began his analysis by
comparing the November 9, 2011 report of Dr. Altic submitted by relator in support of
his first PTD application with the January 14, 2013 report of Dr. Altic submitted by
relator in support of his second PTD application. Noting that Dr. Altic stated in his
January 14, 2013 report that "if anything over the past year, his condition has
progressed symptomatically," the SHO states that Dr. Altic's statement is "vague, and
provides a modicum of evidence of a deterioration in the Injured Worker's condition
since the last determination on this issue from the hearing on 06/04/2012."
{¶ 26} Here, relator asserts that Dr. Altic's January 14, 2013 statement regarding
the progression of symptoms is not vague, but "in fact it is clear." (Relator's brief, 8.)
Relator asserts here that the SHO "knows that this means there is a worsening of
symptoms" because the SHO indicated that it provides a modicum of evidence of a
deterioration. (Relator's brief, 8.)
{¶ 27} Relator seems to miss the point of the SHO's analysis or comparison of
Dr. Altic's reports. In his January 14, 2013 report, Dr. Altic fails to explain how relator's
condition has progressed symptomatically. Because Dr. Altic fails to explain the
progression of symptoms, the SHO correctly concluded that the statement is vague.
{¶ 28} In any event, the SHO of June 3, 2013 did not rely on Dr. Altic's reports in
determining residual functional capacity. Rather, the SHO relied upon the reports of
Drs. Stanko and Higgins and the FCE report of Mr. Secrest in determining residual
functional capacity. It was within the fact finding discretion of the SHO to reject
Dr. Altic's January 14, 2013 report on the basis expressed in the order. While relator
disagrees with the SHO's explanation for rejecting Dr. Altic's report, the SHO's
explanation resides within the SHO's discretion in determining the weight to be given
the evidence before him.
{¶ 29} Relator also argues that the SHO of June 3, 2013 "erred by not considering
the newest reports by Dr. Altic and Stephen Phillips." (Relator's brief, at 8.) Relator's
argument is undermined by the very argument relator previously submitted regarding
Dr. Altic's January 14, 2013 report. As just noted, the SHO addressed Dr. Altic's report,
but found it unpersuasive.
{¶ 30} The SHO's order of June 3, 2013 states in part:
No. 13AP-583 18

Stephen Phillips provided an Employment Assessment
report, dated 03/08/2012 on behalf of the Injured Worker,
in support of the last application. Stephen Phillips, now on
behalf of the Bureau of Workers' Compensation, has
provided an employment assessment report related to the
Injured Worker['s] new application for Permanent Total
Disability. The Staff Hearing Officer in his order of
06/04/2012 referred to Mr. Phillips' 03/08/2012 report and
accepted some of his findings, but the Staff Hearing Officer
by denying the previous application rejected Mr. Phillips'
opinion that the Injured Worker could not return to work.

In light of the fact that both the opinions from Dr. Altic and
Mr. Phillips were implicitly rejected by the Staff Hearing
Officer in his decision denying permanent total disability at
hearing on 06/04/2012, the current reports from Dr. Altic
and Mr. Phillips, expressing virtually identical opinions in
support of the present application as in the last application
for permanent total disability, do not represent credible or
persuasive evidence of new and changed circumstances since
the previous denial of the Injured Worker's application for
permanent total disability compensation.

{¶ 31} How can one read the above-quoted portion of the SHO's order of June 3,
2013 and then conclude that the SHO "erred by not considering the newest reports by Dr.
Altic and Stephen Phillips"? One cannot. Clearly, the SHO addressed the reports.
{¶ 32} It is clear that the SHO's order of June 3, 2013 rejects Dr. Altic's
January 14, 2013 report and it rejects the December 24, 2012 closure report authored
and signed by Mr. Phillips. But rejection of those reports is obviously not a failure to
consider those reports, as relator here seems to suggest.
{¶ 33} Relator further argues that the SHO's order of June 3, 2013 errs when it
finds that the reports of Drs. Stanko and Higgins are compatible. According to relator,
Dr. Higgins' report "is much more informative." (Relator's brief, 9.) Clearly, the SHO
viewed the reports as being similar as to their opinions on residual functional capacity.
That is, both doctors found that relator was capable of sedentary work with specified
limitations. Clearly, the SHO did not err when he stated that the reports are
"compatible."
{¶ 34} Ohio Adm.Code 4121-3-34(B)(2)(a) states:
No. 13AP-583 19

"Sedentary work" means exerting up to ten pounds of force
occasionally (occasionally: activity or condition exists up to
one-third of the time) and/or a negligible amount of force
frequently (frequently: activity or condition exists from one-
third to two-thirds of the time) to lift, carry, push, pull, or
otherwise move objects. Sedentary work involves sitting
most of the time, but may involve walking or standing for
brief periods of time. Jobs are sedentary if walking and
standing are required only occasionally and all other
sedentary criteria are met.

As earlier noted, in his April 10, 2013 report, Dr. Higgins opines:
Mr. Parker is capable of sedentary work. He will require
frequent position changes every 10-15 minutes, going from
sitting to standing and reverse. He has limited walking
abilities. He may walk for about 10-15 minutes at a time. He
can exert minimal force up to 10 pounds occasionally with a
negligible amount of pushing.

According to relator:
Dr. Higgins states that Relator can exert "minimal force up
to 10 pounds occasionally with a negligible amount of
pushing." Sedentary work means being able to exert a
negligible amount of force "frequently". Dr. Higgins says
Relator cannot. Sedentary work also permits exertion of a
negligible amount of force frequently to lift, carry, push or
pull or otherwise move objects. Dr. Higgins states Relator
can exert only a minimal force up to 10 pounds occasionally
with a negligible amount of pushing. The SHO failed to apply
Dr. Higgins' findings to [Ohio Adm.Code] 4121-[3]-
34(B)(2)(a).

(Relator's brief, 10-11.)

{¶ 35} Contrary to relator's suggestion, Dr. Higgins' statement that relator "can
exert minimal force up to 10 pounds occasionally" is not inconsistent with the definition
of sedentary work. Dr. Higgins' statement is the equivalent of saying that relator can
"exert up to 10 pounds of force occasionally" which is within the definition.
{¶ 36} 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
No. 13AP-583 20

KENNETH W. MACKE

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a 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).