[Cite as State ex rel. Montgomery v. Indus. Comm., 2013-Ohio-5295.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Thomas J. Montgomery,
:
Relator,
: No. 12AP-759
v.
: (REGULAR CALENDAR)
Industrial Commission of Ohio
and Advanced Composites, Inc., :
Respondents. :
D E C I S I O N
Rendered on December 3, 2013
Larrimer and Larrimer, and Thomas L. Reitz, for relator.
Michael DeWine, Attorney General, and Eric J. Tarbox, for
respondent Industrial Commission of Ohio.
Sebaly Shillito + Dyer, Karl R. Ulrich, and Danyelle S.T.
Wright, for respondent Advanced Composites, Inc.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
DORRIAN, J.
{¶ 1} Relator, Thomas J. Montgomery, commenced this original
action requesting a writ of mandamus ordering respondent Industrial
Commission of Ohio ("commission") to vacate its order denying him
temporary total disability ("TTD") compensation beginning March 11, 2011
and to find that he is entitled to that compensation.
{¶ 2} Pursuant to Civ.R. 53(D) and Loc. R. 13(M) of the Tenth
District Court of Appeals, this matter was referred to a magistrate, who
issued the appended decision, including findings of fact and conclusions of
law. In his decision, the magistrate observed that the March 5, 2012 order of
No. 12AP-759 2
the commission's staff hearing officer ("SHO") denies TTD on two separate
grounds: (1) that relator is ineligible for the compensation because he
voluntarily abandoned the workforce, and (2) that the C-84 of Dr. Ward is
rejected as being unpersuasive based on Dr. Hawkins' opinion that the
neurotic depression is not work prohibitive. The magistrate further
observed that relator challenged the SHO's determination that he
abandoned the workforce, but did not challenge the determination that the
C-84 is rejected based on Dr. Hawkin's opinion.
{¶ 3} The magistrate recommends that we deny the writ of
mandamus as the commission's determination that relator is ineligible for
TTD compensation due to voluntary abandonment of the workforce is not
ripe for judicial review in this action. Relator objects to this conclusion,
arguing that the finding of voluntary abandonment is precedential and the
request for TTD is continuing.
{¶ 4} Following an independent review pursuant to Civ.R. 53, we
find the magistrate has properly determined the pertinent facts and applied
the salient law to them. Accordingly, we overrule relator's objection and
adopt the magistrate's decision as our own, including the findings of facts
and conclusions of law contained in it. In accordance with the magistrate's
decision, we deny the requested writ of mandamus.
Objection overruled; writ denied.
O'GRADY and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District,
assigned to active duty under the authority of Ohio
Constitution, Article IV, Section 6(C).
No. 12AP-759 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Thomas J. Montgomery,
:
Relator,
: No. 12AP-759
v.
: (REGULAR CALENDAR)
Industrial Commission of Ohio
and Advanced Composites, Inc., :
Respondents. :
MAGISTRATE'S DECISION
Rendered on June 20, 2013
Larrimer and Larrimer, and Thomas L. Reitz, for relator.
Michael DeWine, Attorney General, and Eric J. Tarbox, for
respondent Industrial Commission of Ohio.
Sebaly Shillito + Dyer, Karl R. Ulrich, and Danyelle S.T.
Wright, for respondent Advanced Composites, Inc.
IN MANDAMUS
{¶ 5} In this original action, relator, Thomas J. Montgomery,
requests a writ of mandamus ordering respondent Industrial Commission of
No. 12AP-759 4
Ohio ("commission") to vacate its order denying him temporary total
disability ("TTD") compensation beginning March 11, 2011 and to enter an
order granting the compensation.
Findings of Fact:
{¶ 6} 1. On September 30, 2001, relator injured his right shoulder
while employed as a machine operator for respondent Advanced
Composites, Inc., a state-fund employer. On that date, relator fell several
feet from the platform holding his machine.
2. The industrial claim is currently allowed for:
Contusion right shoulder; tear right rotator cuff; right
synovitis; right bicipital tenosynovitis; right
acromioclavicular joint arthritis; labral degeneration; right
shoulder glenohumeral arthritis; degenerative joint disease
right shoulder; right shoulder arthropathy; articular cartilage
disorder right shoulder; neurotic depression.
{¶ 7} 3. On July 24, 2003, at the request of the Ohio Bureau of
Workers' Compensation ("bureau"), relator was examined by orthopedic
surgeon E. Gregory Fisher, M.D. In his four-page narrative report dated July
29, 2003, Dr. Fisher stated:
The treatment that the injured worker has received to date
has been reasonable, necessary and related to the allowed
conditions of the claim. Unfortunately, the physical therapy
has been canceled due to his cardiac condition and he may
need to wait another few months to start physical therapy
I agree with the recommendations being made by the
physician of record, that after clearance from his
cardiologist, physical therapy should be done for at least two
months.
***
I do not feel that the injured worker can return to his former
position of employment due to the medical instability of his
right shoulder and his cardiac problems at this point.
***
No. 12AP-759 5
The claimant has not reached his maximum medical
improvement and should have re-examination in
approximately 3-4 months.
{¶ 8} 4. On December 10, 2003, at the bureau's request, relator was
examined by Thomas N. Markham, M.D. In his four-page narrative report,
Dr. Markham states:
This injured worker has not reached MMI for the injury to
his right shoulder. He has most recently started physical
therapy to improve the strength and range of motion. This
start of physical therapy was delayed due to unrelated
medical conditions which themselves limit his ability to
return to work. He has a significantly reduced left ventricular
discharge and recovering congestive heart failure. As a result
of this latter condition, he may require vocational
rehabilitation. A skills assessment is recommended.
***
The injured worker cannot return to his former position of
employment at present. Although his right shoulder has not
reached MMI, his employment limitations have been caused
by the unrelated medical conditions. He could return to work
which did not require more than light manual labor with the
right arm. This return to work is dependent upon the control
of his cardiac health condition.
{¶ 9} 5. On March 2, 2004, at the bureau's request, relator was
examined by Donald J. Sherman, M.D. In his five-page narrative report, Dr.
Sherman stated:
The injured worker remains substantially symptomatic and
impaired, but there is indication of improvement with
physical therapy. I do not consider that the injured worker
has reached maximum medical improvement. If he is not
medically prevented from continuing physical therapy, he
may derive further benefit. If, however, he participates in
physical therapy for another eight to ten weeks, with no
interruptions or limitations imposed by his cardiac
condition, and if there were no substantial improvement by
that time, I would then consider him to have reached
maximum medical improvement.
***
No. 12AP-759 6
I discussed Mr. Montgomery's condition with his treating
physician, Dr. Travis. We talked about vocational
rehabilitation, which will be discussed below. In my opinion,
treatment to date has been both necessary and appropriate.
***
It is my opinion, and also that of Dr. Travis, that if Mr.
Montgomery cannot participate in meaningful vocational
rehabilitation because of his cardiac condition, it is unlikely
that he would be able to resume gainful physical work for
which he is otherwise qualified by virtue of education,
training, and experience.
***
The injured worker is not able to return to his former
position of employment.
{¶ 10} 6. Following a June 29, 2004 hearing, a staff hearing officer
("SHO") issued an order stating:
Temporary total disability is denied from 03/17/2004 to the
present, 06/29/2004. Based on the reports of Drs.
Markham, Sherman and Fishinger [sic], the injured worker
cannot work presently due to the injured worker's unrelated
cardiac problems.
{¶ 11} 7. On July 23, 2004, at the bureau's request, relator was
examined by Stephen W. Duritsch, M.D. In his three-page narrative report,
Dr. Duritsch stated:
The injured worker states that he has noted a great deal of
improvement in his shoulder over the last several months[.]
He states that from a medical standpoint he has been able to
participate in therapy[.] Due to the stability of his medical
problems he was not medically suited for therapy through a
good portion of the last of 2003 and early 2004[.] He states
that he feels stronger and his motion is better in the right
shoulder[.] He still has some weakness with external rotation
and overhead lifting[.] His symptoms are still a 5 on a 1 to 10
scale[.] His symptoms are worse with heavy exercise and
better with rest[.] Functionally he has returned to driving
and doing housework[.] He is unable to swing tools so it is
difficult for him to do yard work[.] He had to change his
hobbies as he can no longer handle a high-powered rifle[.]
No. 12AP-759 7
From a medical standpoint his internist, Dr. Olegario at
Good Samaritan Hospital in Cincinnati, told him that he is
disabled[.] Social Security Disability has been processed[.]
The injured worker does not plan to return to work once his
therapy is completed[.]
***
The injured worker had a fall in 2001[.] He had his first
surgical procedure in March of 2002 and needed a redo
procedure in December of 2002[.] His postoperative
rehabilitation has been complicated by medical conditions
including congestive heart failure and irritable bowel
syndrome[.] He states that his medical condition is unrelated
to this claim and have been severe enough that he is not
going to go back to work for those conditions alone[.] He is
on Social Security Disability[.] The primarily [sic] issue here
is how long to continue physical therapy for strengthening,
as the original plan for reconditioning with return to work is
no longer appropriate as this injured worker is not planning
to return to work[.]
***
This injured worker likely warrants another four weeks of
physical therapy at three times a week[.] He likely will be at
maximal medical improvement at the completion of those
visits[.]
***
He cannot return to his former position of employment due
to medical conditions of congestive heart failure and chronic
obstructive pulmonary disease[.] He does not plan to go back
to his previous job[.]
***
Based on the information available at this time and my
examination today, I completed the Opinion of Physical
Capacities form based only on his shoulder injury from
2001[.] This injured worker will be capable of light duty
work based on his shoulder injury alone[.] His other medical
conditions, per his report today, are preventing him from
going back to work[.]
No. 12AP-759 8
{¶ 12} 8. On March 11, 2011, at relator's own request, he was
examined by clinical psychologist H. Owen Ward, Jr., Ph.D. In his five-page
narrative report, Dr. Ward opined:
CONCLUSIONS AND RECOMMENDATIONS
Based upon the current data presented to me I have given
Mr. Montgomery the following diagnosis for a work related
condition based on ICD-9-CM criteria:
300.4 Neurotic Depression.
The causality seems clear in this case. Mr. Montgomery has
suffered from chronic depression over the past 4 to 5 years
that are generally mild to moderate with very brief periods of
relief. While he did appear to have some adjustment
problems with his alcoholic ex-wife, these symptoms were
episodic and seemed to have abated once he divorced. His
irritability and verbal assaultive tendencies appear to be
related to his depression and coping difficulty with chronic
pain. In this regard, some of his anxiety appears to be related
to this process of internalizing anger.
In terms of causality, I believe that the current data indicates
clearly that his current condition is the direct and proximate
result of his workplace injury. These symptoms seem to have
their onset for the era following his surgery in 2003, when
his physical condition worsened and his pain became
increasingly debilitating.
I have discussed with Mr. Montgomery the recommendation
for psychotherapy and psychotropic medication. He seems to
be a cooperative person and willing to engage in treatment if
he is granted benefits through the BWC.
{¶ 13} 9. On September 30, 2011, at the bureau's request, relator was examined by
psychiatrist and neurologist James R. Hawkins, M.D. In his nine-page narrative report
dated October 18, 2011, Dr. Hawkins answers seven questions:
OPINION- The following opinions are based on the
information obtained from the history, present complaints,
mental status examination, review of medical records
provided, and are to a reasonable degree of medical
certainty.
No. 12AP-759 9
[One] Do the submitted medical evidence and the
examination findings support the existence of the requested
condition according to DSM IV classifications?
Medical evidence and examination findings support a
diagnosis of a mild chronic depression best described as
300.4 Neurotic Depression. He feels sad, somewhat
hopeless, and is concerned about his future. Nevertheless, he
retains nearly all of his functional abilities.
[Two] What is the normal onset of this type of diagnosis?
Typically, this illness occurs with multiple losses over a long
period of time. Mr. Montgomery has multiple medical
illnesses which are impairing his ability to function to his
premorbid level.
[Three] What is the normal recovery period for this
condition(s)?
Dysthymia, is a chronic illness from which recovery is not
likely.
[Four] Is/are the alleged condition(s) a direct and proximate
result of the industrial injury?
No, the Dysthymic pre-existed the industrial injury.
[Five] If the condition was present prior to the injury, did the
injury aggravate the psychological condition?
The injury did aggravate his pre-existing condition of
Neurotic Depression.
[Six] If, in your opinion, the psychological condition is
present, what should current and future treatment include?
Please indicate frequency and duration.
Mr. Montgomery might benefit from a mild antidepressant
and supportive counseling however there will be no long-
term benefits given the chronicity of his depressive illness. I
would recommend no more than 6 months of treatment.
[Seven] Is this work prohibitive?
The depression is not work prohibitive.
No. 12AP-759 10
{¶ 14} 10. On October 25, 2011, the bureau mailed an order
additionally allowing the claim for "neurotic depression," based upon Dr.
Hawkins September 30, 2011 examination and report.
{¶ 15} 11. On November 11, 2011, Dr. Ward completed a C-84 on
which he certified TTD from March 11, 2011 to an estimated return-to-work
date of February 3, 2012. Dr. Ward's certification was exclusively based
upon the neurotic depression.
{¶ 16} 12. On November 18, 2011, relator moved for TTD
compensation beginning March 3, 2011 based upon the C-84 from Dr. Ward.
{¶ 17} 13. Following a January 10, 2012 hearing, a district hearing
officer ("DHO") issued an order denying the C-84 request for TTD
compensation. The DHO's order explains:
The District Hearing Officer finds the Injured Worker
voluntarily abandoned the work force. From the Injured
Worker's testimony and the Bureau of Worker's
Compensation CSS notes dated 11/23/2011 and 12/02/2011,
the District Hearing Officer finds the Injured Worker has not
worked since 03/07/2002. At hearing, the Injured Worker
acknowledged that he has not worked since this date. [H]e is
currently receiving Social Security benefits, and since
03/07/2002, has made no effort [to] obtain employment.
Therefore, based upon this District Hearing Officer's finding
that the Injured Worker voluntarily abandoned the
workforce, the District Hearing Officer does not find the
Injured Worker eligible for payment of temporary total
disability compensation.
{¶ 18} 14. Relator administratively appealed the DHO's order of
January 10, 2012.
{¶ 19} 15. On March 2, 2012, relator executed an affidavit stating:
Now comes the affiant after first being dually cautioned and
sworn and states that the following is a statement regarding
my inability to continue working and the facts associated
with my termination in 2003. I am making this statement in
reference to the hearing officer's recent determination that I
allegedly voluntarily abandoned the work force. This fact
could not be further from the truth.
At the time of my injury, I was working 40-50 hours per
week. Directly following the injury I was not able to work
No. 12AP-759 11
overtime but tried my best to continue light duty
employment. Prior to my employment with Color and
Composite Technologies, I was employed at Copeland
Corporation working in full time capacity 40+ hours.
When my injury first occurred, it was only recognized for
contusion. Shortly thereafter, an MRI did confirm a tear of
the right rotator cuff. This condition was eventually
recognized in my claim and I began receiving temporary
total disability benefits on March 15, 2002, the date of my
first shoulder surgery. Following my surgery, I participated
in vocational rehabilitation with the Bureau of Workers'
Compensation and received living maintenance benefits. At
the same time I was involved with vocational rehabilitation, I
also was undergoing extensive physical therapy without
much improvement. Unfortunately, my vocational
rehabilitation plan had to be closed due to my inability to
reach the physical capacity that would allow me to be
productive with my employer of record. I was told that my
vocational rehabilitation file was closed due to medical
instability effective November 4, 2002.
As my complaints continued, I did seek consultation for
additional surgery. There was a delay in obtaining approval
for my surgery as my EKG testing need[ed] to be cleared. It
was determined that I needed additional surgery and my
employer was growing very impatient about my ability to
return to work. In fact, the human resources department
continued to question me about the situation "not moving
along." I did undergo my second shoulder surgery in
December of 2002, and unfortunately, was told by the
employer that I was terminated effective March 31, 2003, as
a result of my inability to return to work. This is despite the
fact that the BWC physician's continued to note my ongoing
disability associated with my shoulder injury.
I again availed myself of vocational rehabilitation but again
the case was closed due to medical instability on July 1,
2003.
On a fourth occasion, I again referred myself to vocational
rehabilitation in 2004 however, by this time I was diagnosed
with congestive heart failure in addition to the problems I
was having with my shoulder. I was not able to participate in
the vocational rehabilitation due to this and was forced to
make a determination to file for social security disability.
No. 12AP-759 12
My decision to file for social security disability was due to the
fact that I had many medical bills to pay and no health
insurance due to my termination. Clearly, it was my
intention to return to work if I had the ability to do so. My
shoulder condition has never resolved and has continued to
weaken to this day. I have had several consultations with
various physicians including one at the Cleveland Clinic who
have told me a third surgery would not be beneficial.
I am offended by the allegation that I somehow voluntarily
abandoned the work force in 2002, when the truth clearly is
documented in the medical evidence and rehabilitation
records.
Even after my cardiac condition became stable, I continued
to try to find a resolution to my shoulder problem and
actually consulted with the Orthopedic Institute as well as
the Cleveland Clinic.
My shoulder to this day is seriously weak. I have to use my
left arm to assist it with many tasks. Pain causes me difficulty
sleeping and has contributed to my frustration with
performing daily activities. I do believe that the pain and the
disability associated with my shoulder condition have led to
the recent diagnosis of neurotic depression.
I have never had a resolution of my right shoulder condition
since my date of injury and would wish nothing better than
to have the ability to return to work. I would ask hat the
Industrial Commission please consider my statement in
regard to fully evaluating the reason for my departure from
work in 2003.
{¶ 20} 16. Following a March 5, 2012 hearing, an SHO issued an
order affirming the January 10, 2012 order of the DHO and denying the C-
84 request for TTD compensation. The SHO's order explains:
The Injured Worker's C-86 motion, filed 11/18/2011,
requests the payment of temporary total disability
compensation for the period from 03/03/2011 through
11/18/2011 and continuing. However, at the hearing of
Monday, March 5, 2012, the Injured Worker's legal counsel
modified that request and stated that the Injured Worker is
only requesting temporary total disability compensation
from 03/11/2011 through an estimated date of 05/02/2012
and continuing. The change in the starting date of temporary
total disability compensation was based on the fact that the
No. 12AP-759 13
Injured Worker was first examined by Hensel Owen Ward,
Jr, Ph.D., on 03/11/2011, not 03/03/2011.
The Administrator of the Bureau of Workers' Compensation
objected to said request, based, in part, upon the allegation
that the Injured Worker has abandoned the workforce.
The Injured Worker submitted an affidavit, dated
03/02/2012, stating that the allegation that he voluntarily
abandoned the workforce was not true. However, this Staff
Hearing Officer does not find the Injured Worker's affidavit
to be credible nor persuasive.
This Staff Hearing Officer makes note of the fact that, when
the Injured Worker was previously examined by Donald J.
Sherman, M.D., an Occupational Medicine Specialist, on
03/02/2004, the Injured Worker told the examining
physician that, "he has been diagnosed with chronic
obstructive pulmonary disease…irritable bowel syndrome
and congestive heart failure." Furthermore, Dr. Sherman
indicates that the Injured Worker told him that, "the Injured
Worker believes he will not be able to resume gainful
employment, because of his cardiac condition, and is intent
on pursuing permanent total disability." Dr. Sherman then
contacted the Injured Worker's attending physician, R.
Daniel Travis, M.D. Dr. Sherman related that, "I discussed
Mr. Montgomery's condition with his treating physician, Dr.
Travis. We talked about vocational rehabilitation, which will
be discussed below…it is my opinion, and also that of Dr.
Travis, that if Mr. Montgomery cannot participate in
meaningful vocational rehabilitation, because of the cardiac
condition, it is unlikely that he would be able to resume
gainful physical work for which he is otherwise qualified by
virtue of education, training, and experience."
The Injured Worker was next examined [by] a Physical
Medicine and Rehabilitation Specialist, Stephen W.
Duritsch, M.D., on 07/23/2004. The Injured Worker related
a similar history to Dr. Duritsch and stated that he had other,
non-industrial illnesses, including Histoplasmosis, Chronic
Obstructive Pulmonary Disease, Congestive Heart Failure
and Irritable Bowel Syndrome. Furthermore, the Injured
Worker told Dr. Duritsch that, "From a medical standpoint,
his Internist, Dr. Olegarrio, at Good Samaritan Hospital, in
Cincinnati, told him that he is disabled. Social Security
Disability has been processed. The Injured Worker does not
plan to return to work, once his therapy is completed."
Furthermore, Dr. Duritsch also stated that Injured
No. 12AP-759 14
[W]orker's, "post-operative rehabilitation has been
complicated by medical conditions, including congestive
heart failure and irritable bowel syndrome. He states that his
medical condition is unrelated to this claim and have been
severe enough that he is not going to go back to work for
those conditions alone…the original plan for reconditioning,
with return to work, is no longer appropriate, as this Injured
Worker is not planning to return to work." Dr. Duritsch then
stated his professional medical opinion that, "He cannot
return to his former position of employment, due to medical
conditions of congestive heart failure and chronic obstructive
pulmonary disease. He does not plan to go back to his
previous job…This Injured Worker will be capable of light
duty work, based on his shoulder injury alone. His other
medical conditions, per his report today, are preventing him
from going back to work."
Furthermore, this Staff Hearing Officer makes note of the
fact that the Injured Worker's affidavit, dated 03/02/2012,
stated that he attempted to participate in vocational
rehabilitation, on four different occasions, and went on to
state that, "Clearly, it was my intention to return to work, if I
had the ability to do so."
However, the vocational rehabilitation closure letter of
01/27/2004, specifically stated that, "Mr. Montgomery is not
interested in pursuing vocational rehabilitation services. He
is currently receiving just over $500.00 in Social Security
payments due to his heart condition and Irritable Bowel
Syndrome…Mr. Montgomery has been referred for
vocational rehabilitation services, due to his work-related
injury on September 30, 2001. OEHP is the MCO
responsible for managing Mr. Montgomery's Workers'
Compensation claim. Mr. Montgomery indicated that his
doctor does not believe that he is capable of sustained
remunerative employment, due to his heart condition.
Consequently, Mr. Montgomery denied services due to his
heart condition and consequently Mr. Montgomery denied
services" (emphasis added).
Therefore, it is the finding of this Staff Hearing Officer that
the Injured Worker voluntarily abandoned the entire labor
market, "due to medical conditions of congestive heart
failure and chronic obstructive pulmonary disease" which are
conditions unrelated to the incident claim. Therefore, it is
the finding of this Staff Hearing Officer that the Supreme
Court's Holding in the case of State ex rel. Lackey v. Indus.
Comm. (2011), 129 Ohio St.3d 119, is applicable to the facts
No. 12AP-759 15
in the instant claim. The Injured Worker did not
demonstrate, through medical evidence at the time of his
departure from the workforce, that said departure was
causally related to the industrial injury, as opposed to his
non-industrial conditions of congestive heart failure and
chronic obstructive pulmonary disease.
The Ohio Supreme Court has also held that eligibility for
compensation, under these circumstances, depends on
whether the separation from appointment was "injury-
induced". In the instant claim, the Injured Worker sought
Social Security Disability not because of his right shoulder
injury, but due to his cardiac condition. The Industrial
Commission has previously held, in this claim, in an order
dated 06/29/2004, published 07/01/2004, that, "Based on
the reports of Dr. Markham, Sherman and Fishinger [sic],
the Injured Worker cannot work, presently, due to the
Injured Worker's unrelated cardiac problems." Therefore, at
that time, temporary total disability compensation was
denied, from 03/17/2004 forward.
It is the finding of this Staff Hearing Officer that the Injured
Worker, himself, has foreclosed the possibility of finding and
obtaining other employment, as he abandoned the entire
workforce. Therefore, payment of temporary total disability
compensation is barred pursuant to the Ohio Supreme
Court's holding in the case of State ex rel. Ashcraft v. Indus.
Comm. (1987), 34 Ohio St.3d 42. In that case, the Court
stated that, when a Injured Worker voluntarily exits the
entire market, "He no longer incurs a loss of earnings,
because he is no longer in a position to return to work."
Ashcraft at page 44.
Furthermore, assuming, arguendo, that the Injured Worker
had not voluntarily abandoned the workforce, this Staff
Hearing Officer makes note of the fact that the requested
period of disability is based upon the newly allowed
condition of neurotic depression, which was additionally
allowed in this claim pursuant to the Administrator's order
of 10/25/2011. That order specifically stated that, "This claim
is additionally allowed for the medical condition of 300.4
neurotic depression" and that, "This decision is based on: Dr.
Hawkins examine of 09/30/2011."
The Administrator's order refers to the narrative report of
James R. Hawkins, M.D., a Board-Certified Psychiatrist and
Neurologist, who examined the Injured Worker on
09/30/2011, at the request of the Bureau of Workers'
No. 12AP-759 16
Compensation. Dr. Hawkins confirmed that the, "medical
evidence and examination findings support a diagnosis of a
mild chronic depression, best described as 300.4 neurotic
depression…The Injury did aggravated his pre-existing
condition of neurotic depression". However, in regard to the
issue of whether or not the Injured Worker's neurotic
depression was "work prohibitive", Dr. Hawkins specifically
stated his professional medical opinion that the Injured
Worker's, "depression is not work prohibitive."
This Staff Hearing Officer also finds the opinion of James R.
Hawkins, M.D., to be persuasive. Therefore, it is the finding
of this Staff Hearing Officer that the Injured Worker's
neurotic depression is not work [prohibitive].
Therefore, it is the order of this Staff Hearing Officer that
the requested period of temporary total disability
compensation, from 03/11/2011 through
03/05/2012, is hereby DENIED.
(Emphasis sic.)
{¶ 21} 17. On April 3, 2012, another SHO mailed an order refusing
relator's appeal from the SHO's order of March 5, 2012.
{¶ 22} 18. On September 4, 2012, relator, Thomas J. Montgomery,
filed this mandamus action.
Conclusions of Law:
{¶ 23} It is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
{¶ 24} Analysis begins with the observation that the SHO's order of
March 5, 2012 denies TTD compensation on two separate grounds: (1) that
relator is ineligible for the compensation because he voluntarily abandoned
the workforce, and (2) that the C-84 of Dr. Ward is rejected as being
unpersuasive based upon Dr. Hawkins' opinion that the neurotic depression
is not work prohibitive.
{¶ 25} An injured worker who has voluntarily abandoned the entire
workforce for reasons unrelated to his industrial injury is ineligible for TTD
compensation. State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40,
2008-Ohio-5245.
No. 12AP-759 17
{¶ 26} Of course, an injured worker who is eligible for TTD
compensation has the burden "to pursuade the commission that there is a
proximate causal relationship between his work-connected injuries and
disability, and to produce medical evidence to this effect." State ex rel.
Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 83 (1997)
{¶ 27} Here, quoting from the numerous medical reports of record
regarding relator's non-allowed medical conditions that have restricted his
ability to work and participate in rehabilitation of his shoulder injury, the
SHO's order of March 5, 2012 presents a lengthy explanation as to why the
SHO found that relator voluntarily abandoned the workforce. It is that
explanation of ineligibility that relator challenges in this action.
{¶ 28} But the SHO's order of March 5, 2012 also presents an
alternative basis for denial of the compensation requested:
Furthermore, assuming, arguendo, that the Injured Worker
had not voluntarily abandoned the workforce, this Staff
Hearing Officer makes note of the fact that the requested
period of disability is based upon the newly allowed
condition of neurotic depression, which was additionally
allowed in this claim pursuant to the Administrator's order
of 10/25/2011. That order specifically stated that, "This claim
is additionally allowed for the medical condition of 300.4
neurotic depression" and that, "This decision is based on: Dr.
Hawkins examine of 09/30/2011."
The Administrator's order refers to the narrative report of
James R. Hawkins, M.D., a Board-Certified Psychiatrist and
Neurologist, who examined the Injured Worker on
09/30/2011, at the request of the Bureau of Workers'
Compensation. Dr. Hawkins confirmed that the, "medical
evidence and examination findings support a diagnosis of a
mild chronic depression, best described as 300.4 neurotic
depression…The Injury did aggravate his pre-existing
condition of neurotic depression". However, in regard to the
issue of whether or not the Injured Worker's neurotic
depression was "work prohibitive", Dr. Hawkins specifically
stated his professional medical opinion that the Injured
Worker's, "depression is not work prohibitive."
This Staff Hearing Officer also finds the opinion of James R.
Hawkins, M.D., to be persuasive. Therefore, it is the finding
No. 12AP-759 18
of this Staff Hearing Officer that the Injured Worker's
neurotic depression is not work [prohibitive].
{¶ 29} Relator does not challenge here the alternative basis for denial
of the compensation request. That is, relator does not argue that the report
of Dr. Hawkins fails to constitute some evidence supporting denial of the C-
84 request for TTD compensation.
{¶ 30} Thus, even if this court were to determine that the
commission abused its discretion in finding a voluntary abandonment of the
workforce, Dr. Hawkin's report remains as some evidence supporting denial
of the compensation.
{¶ 31} Under the circumstances, a writ of mandamus must not issue.
{¶ 32} The commission's determination that relator is ineligible for
TTD compensation due to a voluntary abandonment of the workforce is not
ripe for judicial review in this action.
{¶ 33} State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio
St.3d 88, 89 (1998), is instructive. In that case, the Supreme Court of Ohio
applied the ripeness doctrine in a mandamus action brought by an employer
who challenged the claimant's entitlement to workers' compensation. The
Elyria court denied the requested writ on grounds that the question
presented was not ripe for review. The Elyria court states:
The ripeness doctrine is motivated in part by the desire "to
prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements over administrative policies * * *." Abbott
Laboratories v. Gardner (1967), 387 U.S. 136, 148, 87 S.Ct.
1507, 1515, 18 L.Ed.2d 681, 691. As one writer has observed:
"The basic principle of ripeness may be derived from the
conclusion that 'judicial machinery should be conserved for
problems which are real or present and imminent, not
squandered on problems which are abstract or hypothetical or
remote.' * * * [T]he prerequisite of ripeness is a limitation on
jurisdiction that is nevertheless basically optimistic as regards
the prospects of a day in court: the time for judicial relief is
simply not yet arrived, even though the alleged action of the
defendant foretells legal injury to the plaintiff." Comment,
Mootness and Ripeness: The Postman Always Rings Twice
(1965), 65 Colum.L.Rev. 867, 876.
No. 12AP-759 19
{¶ 34} Here, relator is asking this court to issue a writ ordering the
commission to vacate one of the two grounds the commission gave for denial
of compensation. As noted, that ground is the determination of ineligibility
due to a voluntary workforce abandonment. But a court ordered elimination
of the commission's ineligibility determination cannot result in an award of
compensation under the circumstances here.
{¶ 35} Conceivably, the instant determination of ineligibility could
come into play if relator were to make a further request for TTD
compensation. In the event that such a scenario develops in the future, it is
conceivable that the finding of a voluntary abandonment of the workforce
would be ripe for judicial review.
{¶ 36} For now, it is the magistrate's view that the commission's
eligibility determination is not ripe for review in this action. See State ex rel.
Park Poultry, Inc. v. Indus. Comm., 10th Dist. No. 03AP-1122, 2004-Ohio-
6831. State ex rel. YRC, Inc. v. Hood, 10th Dist. No. 09AP-529, 2010-Ohio-
2190.
{¶ 37} Accordingly, for all the above reasons, it is the magistrate's
decision that this court deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
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).