[Cite as State ex rel. Daimler Chrysler Corp. v. Indus. Comm., 2014-Ohio-2072.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, ex rel. :
Daimler Chrysler Corp.,
:
Relator,
:
v. No. 13AP-306
:
The Industrial Commission (REGULAR CALENDAR)
of Ohio and Michael A. Liles, :
Respondents. :
D E C I S I O N
Rendered on May 15, 2014
Coolidge Wall Co., L.P.A., David C. Korte, Michelle D. Bach, and
Joshua R. Lounsbury, for relator.
Michael DeWine, Attorney General, and LaTawnda N. Moore,
for respondent Industrial Commission of Ohio.
Larrimer and Larrimer, and Thomas L. Reitz, for respondent
Michael A. Liles.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
CONNOR, J.
{¶ 1} Relator, Daimler Chrysler Corp., brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its October 5, 2012 order awarding permanent total disability compensation
("PTD") to respondent, Michael A. Liles ("claimant").
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who rendered a decision and
recommendation that includes findings of fact and conclusions of law, which is appended
No. 13AP-306 2
hereto. The magistrate concluded that the commission abused its discretion in awarding
PTD compensation when it expressly relied on the report of a vocational specialist that:
(1) contains a medical opinion that the expert is not competent to render, and (2) conflicts
with the opinion of the medical expert upon which the commission also relied.
Specifically, the vocational expert opined that the pain medication prescribed to claimant
effectively prevented him from participating in the training program needed to prepare
him for sedentary work. Accordingly, the magistrate recommended that we issue the
requested writ of mandamus.
{¶ 3} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley
v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists
where the relator shows that the commission abused its discretion by entering an order
which is not supported by any evidence in the record. State ex rel. Elliott v. Indus.
Comm., 26 Ohio St.3d 76 (1986).
{¶ 4} Claimant sets forth the following three objections to the magistrate's
decision:
Objection No. 1: The magistrate erred by holding that the
Commission must rely on medical expertise to conclude
that narcotic medication will hamper the ability to
complete a retraining program.
Objection No. 2: The magistrate erred by holding that
Unger[v. Indus. Comm., 70 Ohio St.3d 672 (1994)] and
[State ex rel. Paraskevopoulus v. Indus. Comm., 83 Ohio
St.3d 189 (1998)] stand for the legal precedent that effect
of medication generally requires medical expertise.
Objection No. 3: The magistrate erred by holding that
the Commission based its decision after conducting its
own assessment of the claimant's pain.
{¶ 5} In each of his objections claimant argues, for a slightly different reason, that
the magistrate erred in concluding that the commission abused its discretion by relying on
No. 13AP-306 3
the report of a vocational expert in granting PTD compensation. For the reasons that
follow, we agree with the magistrate.
{¶ 6} In our view, this court's decision in State ex rel. Lear Operations Corp. v.
Crispen, 10th Dist. No. 07AP-428, 2008-Ohio-5256, disposes of the objections. In
Crispen, the commission expressly relied on the report of a medical doctor who opined
that claimant could perform sedentary work. However, in concluding that claimant was
unable to perform sustained remunerative employment, the commission cited the report
of a vocational expert who opined that claimant's pain from the allowed condition
prevented her from performing sedentary work. We granted a writ of mandamus ordering
the commission to vacate its award of PTD compensation for the stated reason that the
commission improperly relied upon a medical opinion rendered by a vocational expert
who was not competent to render such an opinion. Id. at ¶ 5.
{¶ 7} The vocational expert relied on by the commission in this case is neither a
"licensed health professional authorized to prescribe drugs," nor is he engaged in the
"practice of pharmacy." See R.C. 4729.01(A) and (I). Pursuant to our reasoning in
Crispen, the commission abused its discretion when it relied on the opinion of a
vocational expert regarding the deleterious effects of prescribed pain medication. The
vocational expert was simply not qualified to render a medical opinion. Id.
{¶ 8} Moreover, the medical expert expressly relied upon by the commission
opined that claimant was capable of performing sedentary work. The medical expert was
clearly aware of the effects of the prescribed pain medication at the recommended dosage.
By ruling that claimant was unable to participate in sustained remunerative employment,
the commission concluded that the deleterious effects of pain medication, even when
taken in the prescribed dosage, rendered claimant incapable of participating in the
No. 13AP-306 4
training program needed to prepare him for sedentary work. The commission does not
have the medical expertise necessary to reach such a conclusion. Indeed, while it is well-
settled law that the commission is the expert on non-medical factors, including vocational
evidence, State ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266 (1997), it is just as
well-settled that neither the commission nor its hearing officers have medical expertise.
State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 81 Ohio St.3d 56, 58 (1998).
{¶ 9} In short, for the reasons set forth by the magistrate and the additional
reasons set forth herein, the objections shall be overruled.
{¶ 10} Following an independent review of the magistrate's decision and the
objections filed by claimant, we find that the magistrate has determined the pertinent
facts and properly applied the relevant law. Accordingly, we adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained
therein. For the reasons set forth in the magistrate's decision and those expressed herein,
claimant's objections are overruled.
{¶ 11} We hereby issue a writ of mandamus ordering the commission to vacate its
October 5, 2012 order awarding permanent total disability compensation to claimant and
to issue a new order denying such compensation.
Objections overruled; writ granted.
KLATT and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District,
assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
_________________
No. 13AP-306 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, ex rel. :
Daimler Chrysler Corp.,
:
Relator, No. 13AP-306
:
v. (REGULAR CALENDAR)
:
The Industrial Commission
of Ohio and Michael A. Liles, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on December 20, 2013
Coolidge Wall Co., L.P.A., David C. Korte, Michelle D. Bach, and
Joshua R. Lounsbury, for relator.
Michael DeWine, Attorney General, and LaTawnda N. Moore,
for respondent Industrial Commission of Ohio.
Larrimer and Larrimer, and Thomas L. Reitz, for respondent
Michael A. Liles.
IN MANDAMUS
{¶ 12} In this original action, relator, Daimler Chrysler Corp. ("relator" or
"Chrysler") requests a writ of mandamus ordering respondent Industrial Commission of
Ohio ("commission") to vacate the October 5, 2012 order of its staff hearing officer
("SHO") that awards permanent total disability ("PTD") compensation to respondent,
Michael A. Liles, and to enter an order denying the compensation.
Findings of Fact:
No. 13AP-306 6
{¶ 13} 1. Michael A. Liles ("claimant") has two industrial claims that arose in the
course of his employment as a maintenance electrician with relator, a self-insured
employer under Ohio's Workers' Compensation laws.
{¶ 14} 2. On July 14, 1988, claimant injured his left forearm and lower back when
he climbed down from a machine and slipped and fell on oil on the floor. The industrial
claim (No. 981403-22) is allowed for:
Abrasion, left forearm, lumbosacral sprain/strain;
intervertebral disc syndrome; herniated lumbar disc L4-
5, bilateral; herniated disc L5-S1; lumbar post-
laminectomy syndrome; arachnoiditis.
{¶ 15} 3. On August 31, 1999, claimant again slipped on oil and fell while working
on a plastic injection machine. The industrial claim (No. 99-511558) is allowed for "sprain
lumbar region."
{¶ 16} 4. On September 16, 2007, Thomas Nguyen, M.D., wrote to claimant's
counsel:
After reviewing the history profile of Mr. Michael Liles'
medical injury for the past 18 months, I agree with your
assessment that Mr. Liles has a permanent injury with
regard to his lumbar spine. He has shown no significant
clinical change or improvement in the past 18 months.
Due to his chronic back pain and difficulty with range of
motion, it is unlikely that he will be able to resume any
type of vocation requiring physical assertions [sic].
{¶ 17} 5. On October 2, 2007, claimant filed an application for PTD compensation.
{¶ 18} 6. The PTD application form asks the applicant to provide information
regarding his educational status. On the form, claimant indicated that the 9th grade was
the highest grade of school he had completed and this occurred in 1965. Although he did
not graduate from the high school that he attended, claimant did receive a certificate for
passing the General Educational Development ("GED") test. Claimant has not gone to a
trade or vocational school.
{¶ 19} The PTD application form poses three questions to the applicant: (1) "Can
you read?" (2) "Can you write?" and (3) "Can you do basic math?" Given a choice of "yes,"
"no," and "not well," claimant selected the "yes" response to all three queries.
No. 13AP-306 7
{¶ 20} 7. The PTD application form also asks the applicant to provide information
regarding his work history. Claimant indicated that he was employed as a "Maintenance
Electrician" at an "Auto Parts Factory" from August 1983 to March 2003.
{¶ 21} 8. The PTD application form also asks the applicant to provide information
regarding military experience. Claimant indicated that he was a "Radio Operator" from
February 1968 to October 1970.
{¶ 22} 9. The application form poses six questions to the applicant regarding the
job titles he has held. Regarding the job title of "Maintenance Electrician," claimant
responded as follows to the following six questions:
[One] Your basic duties: Maintain and repair all electrical
devices in buildings and machinery [sic][.]
[Two] Machines, tools, equipment you used: Factory
trucks, switch gear light bulbs, switches, limit switches,
control panels, all electrical devices[.]
[Three] Exact operations you performed: Replace and or
repair all electrical devices[.]
[Four] Technical knowledge and skills you used: 8 yrs.
experience in electrical field[.]
[Five] Reading / Writing you did: [Left Blank]
[Six] Number of people you supervised: [Left Blank]
{¶ 23} 10. On November 6, 2007, at relator's request, claimant was examined
by orthopedic surgeon William E. Swan, Jr., M.D. In his three-page report, dated
December 3, 2007, Dr. Swan wrote:
Physical examination: Mr. Liles was examined on the
6th of November 2007. He was an alert, cooperative 59-
year-old gentleman who appears to be older than his
stated age. He came to the office with a cane which he
used. When attempting to walk, he limps and in addition,
he walks with an impaired gait and he cannot walk on
either of his toes or heels. The mobility of his back is
extremely limited. The lower extremities; he has marked
atrophy, but he has palpable pulses.
By measurement, the atrophy of his legs are symmetrical.
Sensation is decreased to both lower extremities,
No. 13AP-306 8
especially below the knee. His motor function is about
four over five. His reflexes to both lower extremities are
absent.
By physical examination, he has marked limitation of
motion of his back. His straight leg raising was positive
on the left at 20 degrees and on the right at 25 degrees.
My impression is that Mr. Liles has chronic low back
pain, especially at L4-5 and L5-S1 and 2) He has chronic
arachnoiditis in the lumbar spine, 3) he has low back
syndrome, 4) he is post spinal stenosis.
The patient also has serious other medical problems
which affect his overall condition and these include:
diabetes, diabetes with peripheral neuropathy,
pancreatitis and arteriorscleroic vascular disease.
The patient is disabled to my interpretation. From his
chronic radiculitis of the lower extremity, he has a 15%
whole person functional impairment.
{¶ 24} 11. On February 27, 2008, at the commission's request, claimant was
examined by Angel M. Roman, M.D. In his five-page narrative report, Dr. Roman
wrote:
On April 22, 2002, report of Dr. Scott West, the patient
with radiculopathy recommended a myelogram and that
was pertaining to admission to the hospital for that.
On April 22, 2002, lumbar myelogram Dayton, Ohio,
Grandview/Southview Hospital soft tissue densities
extending posterior from the disk space at L4-L5 and L5-
S1 with degenerative changes as well as postsurgical
changes at L4-L5 and L5-S1. Final diagnosis was spinal
stenosis with advanced degenerative disk disease L4-L5
and L5-S1, surgery performed was posterior
decompression lumbar laminectomy with pedicle screw
fixation L4-L5 and L5-S1, posterior lumbar interbody
fusion, posterolateral transverse process from L4-L5 and
L5-S1 with autograft iliac crest harvest.
Medical history is also obtained from the patient where
he describes pain in the lower back and legs made worse
by walking and made better by sitting. Missed about five
years of work because of this, has had this problem since
No. 13AP-306 9
1988. He has had three back surgeries the last one by Dr.
West in Dayton, Ohio.
***
CURRENT MEDICATIONS: Ibuprofen 800 mg,
Neurontin 600 mg, morphine 30 mg, diclofenac 100 mg,
simvastatin 20 mg, aspirin 81 mg, Avandamet 2/500 mg,
Lyrica 50 mg, and lisinopril 10 mg.
IMPRESSION: This is a patient with longstanding
chronic pain. He has evidence for significant left lower
extremity radiculopathy with weakness as well as pain
and antalgic gait pattern.
Therefore, under matching the physical examination with
the review of records this tends to confirm his accepted
diagnoses, which are:
[One] Left forearm abrasion. This is fully healed with a
0% impairment rating.
[Two] Lumbosacral sprain/strain. This is a muscular
sprain/strain, which is resolved and now receives a 0%
rating.
[Three] Sprain lumbar region. This also has resolved with
a 0% rating.
[Four] Intervertebral disk syndrome. This continues with
chronic pain in the lumbar spine.
[Five] Herniated disk L4-L5 bilaterally, herniated disk
L5-S1. These required surgery and now he continues with
chronic pain and postlaminectomy syndrome with lower
extremity radiculopathy affecting the left leg primarily.
Arachnoiditis is a nerve root condition, which is a
consequence of his surgeries and multiple intervention of
the lumbar spine. This also results in the lumbar
radiculopathy that we have documented affecting the left
side primarily L4 and L5 nerve roots to the left side.
Therefore, he does receive an impairment rating for these
conditions of the lower back with chronic pain status post
two disk herniations with consequent arachnoiditis and
left lower extremity radiculopathy, which is part of the
arachnoiditis. He has reached maximal medical
improvement with all of the conditions listed as accepted.
His impairment rating using the fifth edition AMA
guidelines is he receives a 25% impairment rating using
DRE lumbar category 5, which is on page 387. This is for
No. 13AP-306 10
the patients who have criteria of both DRE lumbosacral
category 3 and 4, which is both radiculopathy and
alternation of motion segment integrity. The loss of
motion segment integrity can be due to fusion surgical in
nature, which is what this patient has.
Therefore, he qualifies for 25% whole impairment rating
DRE category lumbar 5 page 387 fifth edition.
(Emphasis sic.)
{¶ 25} 12. On February 28, 2008, Dr. Roman completed a Physical Strength
Rating form. On the form, Dr. Roman indicated by his mark that claimant is capable
of sedentary work. In the space provided to respond to the query "[f]urther
limitations, if indicated," Dr. Roman wrote:
No overtime. Must take medications as prescribed.
{¶ 26} 13. At the request of claimant's counsel, rehabilitation specialist John P.
Kilcher, prepared an 11-page vocational report dated May 2, 2008. In his report,
Kilcher states:
MEDICAL HISTORY
***
Angel M. Roman, M.D., in his February 2008 medical
report he prepared on behalf of the Industrial
Commission of Ohio, indicated in the medical history
obtained from the patient, Mr. Liles describes pain in the
lower back and legs made worse by walking and made
better by sitting. He missed about five years of work
because of this, and has had this problem since 1988. He
has had three back surgeries the last one by Dr. West in
Dayton, Ohio. Current medications include: Ibuprofen
800 mg, Neurontin 600 mg, morphine 30 mg, Diclofenac
100 mg, Simvastatin 20 mg, aspirin 81 mg, Avandamet
2/500 mg, Lyrica 50 mg, and Lisinopriol 10 mg.
Dr. Roman's impression is that this is a patient with
longstanding chronic lumbar pain. He has evidence for
significant left lower extremity radiculopathy with
weakness as well as pain and antalgic gait pattern.
***
No. 13AP-306 11
VOCATIONAL HISTORY
Mr. Liles reported that he completed the 9th grade of
school in 1965, which was approximately 43-years ago,
and he obtained a General Educational Development
(GED) certificate. The claimant was a member of the U.S.
military from February 1968 to October 1970, which was
over 37 years ago and he worked as a Radio Operator. Mr.
Liles did not complete any other type of formal or
technical training with the exception of that which he
acquired on-the-job. The claimant also reported he can
read, write, and do basic math.
VOCATIONAL ANALYSIS
PERIOD EMPLOYER JOB TITLE
EMPLOYED D.O.T. CODE
08/1983 Daimler Chrysler Maintenance Repairer,
to Corporation Industrial
10/2002 899.261-014
Mr. Liles was employed for approximately 19-years as a
Maintenance Electrician and his duties involved
maintaining and repairing electrical devices in the
buildings and for machinery. For this type of a job, a 12th
grade education is indicated and it is classified as
"Skilled" as it requires 4-10 years of vocational
preparation to become proficient. The job has a Physical
Demand Strength Rating of Heavy Work, which is
defined by the D.O.T. as :
"Exerting 50 to 100 pounds of force occasionally, and/or
25 to 50 pounds of force frequently, and/or 10 to 20
pounds of force constantly to move objects. Physical
Demand requirements are in excess of those for Medium
Work."
TRANSFERABLE SKILLS
***
For the purpose of identifying Mr. Liles' Residual
Functional Capacity as it relates to transferable skills, I
No. 13AP-306 12
utilized Dr. Roman's opinion that the injured worker is
capable of physical work activity at the Sedentary Work
level.
Mr. Liles, from his past jobs, would have acquired the
following skills:
JOB TITLE SKILL LEVEL SKILLS
Maintenance Repairer Skilled -Ability to maintain & repair
Industrial electrical devices for buildings
and machinery
-Ability to use tools &
Equipment to maintain and
repair electrical devices
Mr. Liles' job is classified at the "Skilled" level and he
would have acquired skills from this work activity;
however, it is my opinion the skills were specialized as
that he operated.
Due to this factor, and when further taking into
consideration Mr. Liles' reduced Residual Functional
Capacity, it is my opinion the claimant would not have
acquired any transferable or marketable skills and would
be limited to obtaining a job, if he was physically capable,
which would be classified as "Unskilled."
Based on the fact Mr. Liles did not acquire any
transferable or marketable skills and when further taking
into consideration his reduced Residual Functional
Capacity, it is my opinion the skills the claimant would
have acquired from his past job could not be reasonably
developed to return him to sustained, remunerative
employment.
I am also of the opinion that when taking into
consideration Mr. Liles' age of 59-years, he could not
reasonably develop new skills that would return him to
the labor force. My rational for this is based on my
experience working as a Regional Coordinator for the
Industrial Commission's Rehabilitation Division for
approximately ten years and over nine years in private
practice as a Case Manager providing rehabilitation
services for industrially injured workers throughout the
State of Ohio. It has always been the policy that a
No. 13AP-306 13
claimant of Mr. Liles' age would not be qualified to
participate in a formal retraining program.
It is my opinion that although Mr. Liles' past job as a
Maintenance Repairer is classified as "Skilled," the skills
associated with this job is analogous with physically
exertional work activity and mechanical abilities that
does not require a high level of intellectual ability. This is
evident as the job had the Physical Demand Strength
Rating of Heavy Work and it only required a 12th grade
education. Due to this, Mr. Liles would not have the
ability to develop new skills that would be associated with
a job that could be performed at his reduced Residual
Functional Capacity, as by the very nature of this type of
work activity, it requires intellectual ability in lieu of
physical and mechanical ability.
HIERARCHY OF EMPLOYABILITY
***
[Three] Assist the claimant in finding employment in a
related industry or any other industry
Based on Mr. Liles' reduced Residual Functional
Capacity along with the other debilitating factors
to include the chronic low back pain that he is
experiencing; not having any transferable or
marketable skills to utilize to obtain
employment, along with his inability to
reasonably develop new skills that would return
the claimant to the labor force, while being 59-
years of age; it is my opinion Mr. Liles' potential
to be employed is eliminated. (Note: This will be
addressed in more depth in the "Conclusions"
section of this report).
[Four] Retraining
It is my opinion although retraining may provide
marketable skills, this would not be a realistic
consideration based on the factors that were
identified in number three above, and which
would preclude Mr. Liles' employability following
the completion of a retraining program.
Additionally, when taking into consideration the
chronic low back pain Mr. Liles is experiencing it
No. 13AP-306 14
is not feasible that he could successfully complete
a formal retraining program.
CONCLUSIONS
* **
[Three] Mr. Liles completed the 9th grade of school
approximately 43-years ago, and he obtained a GED. The
claimant was a member of the U.S. military over 37 years
ago working as a Radio Operator. Mr. Liles did not
complete any other type of formal or technical training
with the exception of that which he acquired on-the-job.
The claimant can read, write, and do basic math.
Note: It is my opinion this level of education
would not provide Mr. Liles with the skills that
would allow the claimant to obtain a job that
would be within his reduced Residual Functional
Capacity.
[Four] Mr. Liles does not have any transferable or
marketable skills that he could utilize to obtain
employment; and therefore, he would be limited to
obtaining a job, if he were physically capable, that would
be classified as "Unskilled." Additionally, the skills the
claimant would have acquired from his past jobs could
not be reasonably developed to return him to sustained,
remunerative employment; nor, could Mr. Liles
reasonably develop new skills that would return him to
the labor force.
[Five] Mr. Liles has not worked for over 5-years and his
job was physically exertional. These factors would prove
to be detrimental in the claimant's ability to be employed.
[Six] Mr. Liles is 59-years of age and is considered a
"Person of Middle Age." This would be detrimental in his
ability to obtain employment as it is unlikely that the
claimant would be competitive with younger applicants.
Age becomes a significantly limiting factor when an
industrially injured worker such as Mr. Liles would
attempt to be employed when taking into consideration
all of the vocationally significant factors that I have
identified throughout this report.
No. 13AP-306 15
Note: In relation to Mr. Liles' age, given the presence of a
work disability, the probability of this claimant being
employed is drastically reduced in comparison to a
person who does not have a work disability.
Note: I would further point out Mr. Liles' age in
and of itself would not preclude this claimant
from being employed, and even if he were a
younger individual with the impairments and
vocationally significant deficits that he possesses,
it is my opinion the claimant would not be
employable.
It is my opinion based on his reduced Residual
Functional Capacity, the only possibility of Mr.
Liles' returning to employment in a job that
would be compatible with his physical limitations
would be through a formal retraining program.
As noted previously in this report, when taking
into consideration the chronic low back pain Mr.
Liles is experiencing it is not feasible that he
could successfully complete a formal retraining
program.
In conclusion, based on all of the vocationally
significant factors that I have identified
throughout this report and when only taking into
consideration the impairments that are directly
related to the allowed conditions in the industrial
claims, it is my opinion Mr. Liles is precluded
from performing any type of sustained,
remunerative employment on a full-time or part-
time basis.
REHABILITATION POTENTIAL
The goal of vocational rehabilitation is return-to-work.
Drs. Roman and Wunder are of the opinion Mr. Liles'
condition has reached Maximum Medical Improvement.
This would indicate the clinical condition is not likely to
improve with further active medical treatment or surgical
intervention and medical maintenance care only is
warranted. This would also indicate that any further
attempt to provide rehabilitation services would not be
beneficial in returning Mr. Liles to work. Additionally, as
indicated previously in this report, when taking into
consideration the chronic low back pain the claimant is
No. 13AP-306 16
experiencing it is not feasible that he could successfully
complete a formal retraining program.
Based on these factors, it is this Rehabilitation
Specialist's opinion Mr. Liles is not an
appropriate candidate for a rehabilitation
program with a return-to-work goal.
(Footnotes omitted; Emphasis sic.)
{¶ 27} 14. Following a June 20, 2008 hearing, an SHO issued an order
awarding PTD compensation starting September 16, 2007 based upon the September
16, 2007 report of Dr. Nguyen and the November 6, 2007 (December 3, 2007) report
of Dr. Swan. The SHO found that it was not necessary to consider the non-medical
factors.
{¶ 28} 15. On November 18, 2008, relator filed in this court a mandamus
action that challenged the SHO's order of June 20, 2008.
{¶ 29} 16. On November 3, 2009, this court issued its decision and judgment
entry that granted a limited writ of mandamus ordering the commission to vacate its
order finding claimant to be permanently and totally disabled solely on the basis of a
medical condition. As indicated in this court's written decision, this court found that
the reports of Drs. Nguyen and Swan failed to provide some evidence that claimant is
unable to perform sustained remunerative employment solely as a result of one or
more allowed conditions of the industrial claims. State ex rel. DaimlerChrysler Corp.
v. Indus. Comm., 10th Dist. No. 08AP-1017, 2009-Ohio-5778, affirmed 130 Ohio St.3d
339, 2011-Ohio-4895.
{¶ 30} 17. This court's November 3, 2009 judgment entry states in part:
We return this matter to the commission for further
consideration. In doing so, we do not suggest the
commission cannot seek clarification of the reports
submitted; nor do we suggest claimant is not totally and
permanently disabled based on an analysis that includes
the nonmedical factors. We conclude only that the
evidence the staff hearing officer relied on is not some
evidence on which the commission could base an order
finding claimant to be permanently and totally disabled
solely on the basis of his medical condition.
No. 13AP-306 17
{¶ 31} 18. Claimant appealed as of right this court's November 3, 2009
judgment to the Supreme Court of Ohio.
{¶ 32} 19. On September 28, 2011, the Supreme Court of Ohio affirmed this
court's judgment.
{¶ 33} 20. On May 10, 2012, an SHO mailed an order that acknowledges this
court's writ of mandamus in case number 08AP-1017. The SHO's order states:
In accordance with the Writ, it is ordered that the order
of the Staff Hearing Officer dated, 06/20/2008, findings
mailed 06/25/2008, which granted the claimant
Permanent and Total Disability Compensation solely on
the basis of his medical conditions, is VACATED.
Further, this claim is to be referred to the Hearing
Administrator for appropriate review and to schedule a
de novo hearing before a Staff Hearing Officer to
redetermine the merits of the Injured Worker's IC-2
Application for Permanent Total Disability filed on
10/02/2007.
In accordance with the court's instruction, the Staff
Hearing Officer is to also consider and evaluate the non-
medical factors in making their determination of whether
or not the Injured Worker is Permanently and Totally
Disabled.
The hearing officer is to issue an order which either
grants or denies the IC-2 application filed on
10/02/2007, cite the evidence which is the basis of the
decision and provide an explanation for the decision in
accordance with State ex rel. Mitchell v. Robbins &
Myers, Inc. (1984), 6 Ohio St.3d 481.
{¶ 34} 21. On June 16, 2012, the Columbus Hearing Administrator issued a
compliance letter:
Pursuant to the Court order, the parties are permitted to
seek clarification of the medical reports submitted by the
Employer, from Dr. Swan, and the Injured Worker, Dr.
Nguyen.
The hearing on the issue of the Injured Worker's
application for permanent total disability will not be
scheduled until after, August 10, 2012 to allow time for
the submission of the clarification of the medical reports.
No. 13AP-306 18
22. On August 2, 2012, Dr. Nguyen wrote to claimant's counsel:
Based on the most recent evaluation of Michael Liles on
May 29, 2012, I conclude that he is totally disabled from
his injury he sustained on July 14, 1988. Mr. Liles
continues to have tremendous pain with severe bodily
limitation.
23. On August 27, 2012, Dr. Swan wrote to relator's counsel:
I reviewed your letter dated July 13, 2012. The functional
impairment given Mr. Liles in my December 3, 2007
report was permanent. One can be disabled, unable to
perform his duties, with a functional impairment much
less than 100%. With his functional impairment of 15%,
he will be unable to perform many of the duties requiring
bending, stooping and lifting. In addition, many work
places will not allow a worker to return while taking
narcotics such as Morphine 30mg BID, which Mr. Liles
was taking when I saw him on November 6, 2007.
I consider Mr. Liles unable to perform his heavy labor in
the workplace requiring bending, stooping and lifting
over 5 pounds. A repeat evaluation can be provided if it
would be helpful to you and Mr. Liles.
{¶ 35} 24. Following an October 5, 2012 hearing, an SHO issued an order
granting the PTD application filed on October 2, 2007 and awarding PTD
compensation starting August 2, 2012. The SHO's order of October 5, 2012 explains:
This order is based on the medical report of Dr. Roman
and the vocational report of Mr. Kilcher.
The injured worker has incurred two industrial injuries.
The first and most serious injury occurred in 1988. On
07-14-1988, the injured worker slipped on oil and beads
and his feet went out from under him causing him to land
on his buttocks. The injured worker has undergone three
low back surgeries due to this claim and has chronic low
back pain as a result of this injury per medical reports on
file. The second and last injury occurred on 08-03-1999
wherein the injured worker reinjured his low back when
he slipped and fell. This claim was allowed for a lumbar
sprain with all treatment being conservative in this claim.
The injured worker reportedly last worked in October of
2002.
No. 13AP-306 19
Based on Dr. Roman's report, it is found that the injured
worker has the residual ability to perform sedentary level
work, not involving any overtime, and the injured worker
must continue to take his medications as prescribed.
Consequently, because the injured worker does have
residual employment capability, his disability factors are
next reviewed to determine what impact those factors
have on the injured worker's overall reemployment
potential.
In that light, the record reveals the following disability
factors. The injured worker was 59 at the time the
original IC-2 application was filed on 10-02-2007, the
injured worker has his GED certificate and his prior work
history was as a maintenance electrician repairer.
The injured worker's age at the time of the filing of his IC-
2 application, 59, would make the injured worker at that
time a person of late middle age. At this age, the injured
worker would still have a limited amount of time to
obtain or be retrained for sedentary level work. However,
at this age, the injured worker would probably learn new
work skills or adjust to new work environments more
slowly than younger workers, and to that extent his age
would be a disadvantage. For these reasons his age is
found to be a neutral factor.
The injured worker's education, a GED, is also found to
be a neutral vocational factor. The injured worker does
possess basic literacy/math skills, however, he does not
possess any vocational training beyond high school and
he does not possess a two or four year college degree.
Therefore, it is apparent that the injured worker's
education does not form the basis for immediately
obtaining a sedentary level job as these types of jobs
normally require training beyond the high school level.
Therefore, the injured worker's education is adequate for
the possession of basic literacy/math skills, but it has not
provided the injured worker with the type of background
usually associated with technical or professional
sedentary positions. On this basis, injured worker's
education is found to be a neutral vocational factor.
The injured worker's job history was as indicated that as a
maintenance electrician repairer. This was a physically
demanding job clearly outside of the sedentary level.
No. 13AP-306 20
Therefore, the injured worker would not have
immediately transferable skills for sedentary level work
based on his prior work background. The fact would
indicate that the injured worker's job history is not a
positive vocational factor.
Because the injured worker does not based on his age,
education and work experience have immediately
transferable skills commensurate with sedentary
employment, the only way he could obtain sedentary
employment is through retraining.
Regarding retraining, Mr. Kilcher specifically noted in his
vocational report that the injured worker by age and work
experience would not be qualified to successfully
complete a formal retraining program such that the
injured worker would be qualified for sedentary level
work. Mr. Kilcher pointed out that the injured worker's
chronic low back pain is a factor meriting against the
injured worker successfully completing a formal
retrained [sic] program. The Staff Hearing Officer also
notes that Dr. Roman stated that the injured worker was
to continue to take his medications as prescribed and per
injured worker's counsel at hearing, this included
narcotic medication. The taking of narcotic medication
would obviously hamper the injured worker in any effort
to complete a retraining program and to perform any
type of sedentary job duties.
Because the injured worker is found not presently able to
perform sedentary level work or to develop the work
skills necessary to be qualified for sedentary level work,
and sedentary level work is the only level of work he is
physically able to perform, the injured worker is found to
be permanently and totally disabled.
One hundred percent of the permanent total benefits are
to be paid in claim 981403-22 as it is this claim that per
medical reports on [file] has caused the injured worker to
be totally disabled. The start of 08-02-2012 is based on
Dr. Nguyen's report of such date. This report is the
earliest medical evidence of unequivocal permanent total
impairment.
{¶ 36} 25. On January 8, 2013, relator moved for a declaration of an
overpayment of PTD compensation.
No. 13AP-306 21
{¶ 37} 26. Following an April 4, 2013 hearing, an SHO issued an order finding
that PTD compensation was overpaid from September 16, 2007 through August 1,
2012. The SHO's order explains:
It is the order of the Staff Hearing Officer that an
overpayment is granted for Permanent Total Disability
benefits paid from 09/16/2007 through 08/01/2012. The
overpayment is to be recouped pursuant to the non-fraud
provisions of R.C. 4123.411 (K).
The Injured Worker was previously awarded permanent
total disability benefits, start date 09/16/2007, by Staff
Hearing Officer order issued 06/25/2008. That order
was vacated by Industrial Commission order, issued
05/10/2012. A de novo hearing was conducted on
10/05/2012 to consider the IC-2 permanent total
disability application, filed on 10/02/2007. By order
issued 10/27/2012, permanent total disability benefits
were granted, start date 08/02/2012.
The Self-Insuring Employer had paid permanent total
disability benefits from 09/16/2007 through 08/01/2012
based on the Staff Hearing Officer order issued
06/25/2008. As that order was vacated and the
subsequent award of benefits did not begin until
08/02/2012, the benefits paid from 09/16/2007 through
08/01/2012 are overpaid.
{¶ 38} 27. On April 10, 2013, relator, Daimler Chrysler Corp., filed this
mandamus action.
Conclusions of Law:
{¶ 39} Undisputedly Kilcher and the commission lack medical expertise. State
ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 81 Ohio St.3d 56, 57 (1998).
{¶ 40} Because the commission improperly relied upon medical opinions that
Kilcher and the SHO lacked the competency to render, it is the magistrate's decision
that this court issue a writ of mandamus, as more fully explained below.
{¶ 41} In State ex rel. Lear Operations Corp. v. Crispen, 10th Dist. No. 07AP-
428, 2008-Ohio-5256, this court, speaking through its magistrate, states:
While the commission is free to accept or reject medical
opinions of record in determining disability, it cannot
fashion its own medical opinion from a vocational report
No. 13AP-306 22
nor can it accept medical opinions from a vocational
expert that is not competent to render medical opinions.
Id. at ¶ 24.
{¶ 42} In his vocational report, Kilcher opines that a "formal retraining
program" is "not feasible" because of claimant's "chronic low back pain" which
necessitates use of "prescription medication." In his report, Kilcher lists the "[c]urrent
medications" recognized by Dr. Roman. "[M]orphine 30 mg" is among the
medications listed.
{¶ 43} In his order of October 5, 2012, the SHO relies upon the Kilcher opinion
that "chronic low back pain is a factor meriting against the injured worker successfully
completing a formal retrained [sic] program." Noting that Dr. Roman stated that
claimant "was to continue to take his medications as prescribed," the SHO rendered
his own conclusion that taking narcotic medication "would obviously hamper
[claimant] in any effort to complete a retraining program and to perform any type of
sedentary job duties."
{¶ 44} Pain assessment and the prescribing of medication for the treatment of
pain are matters generally requiring medical expertise. See State ex rel. Unger v.
Indus. Comm., 70 Ohio St.3d 672 (1994); State ex rel. Paraskevopoulos v. Indus.
Comm., 83 Ohio St.3d 189 (1998).
{¶ 45} Kilcher necessarily conducted his own assessment of claimant's low back
pain when he opined that the low back pain and the medication used to treat it
preclude a formal retraining program. Likewise, the SHO necessarily conducted his
own assessment of claimant's pain and the medication use associated with it when the
SHO found that the medication would obviously hamper a retraining program.
{¶ 46} Kilcher stepped outside of his area of vocational expertise into the area
of medical opinion. Also, the SHO impermissibly rendered a medical opinion that he
is not competent to do.
{¶ 47} For its determination of residual functional capacity, the commission,
through its SHO, relied exclusively upon the February 27, 2008 report of Dr. Roman.
In his five-page narrative report, Dr. Roman explains his assessment of a 25 percent
No. 13AP-306 23
impairment. However, no specific medical restrictions are listed in the narrative
report.
{¶ 48} On the Physical Strength Rating form, Dr. Roman indicates by his mark
that the industrial injuries permit sedentary work. While Dr. Roman indicates "[n]o
overtime" no other restrictions are indicated.
{¶ 49} Significantly, Dr. Roman does not indicate or even suggest that
claimant's use of prescribed narcotic medication in any way restricts his ability to
perform sedentary work. Significantly, Dr. Roman does not indicate or suggest that
the industrial injuries would hamper or prevent vocational training aimed at placing
claimant in a sedentary work position.
{¶ 50} Thus, commission reliance upon Kilcher's opinion is inconsistent with
its reliance upon Dr. Roman's report, as relator points out here. Also, the SHO's
finding that any retraining program would be hampered by claimant's use of narcotic
medication is inconsistent with reliance upon Dr. Roman's report.
{¶ 51} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate the October 5, 2012 order of its SHO
that awarded PTD compensation, and to enter an amended order in a manner
consistent with this magistrate's decision that either grants or denies the PTD
application.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not
assign as error on appeal the court's adoption of any
factual finding or 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).