State ex rel. Bennett v. Indus. Comm.

[Cite as State ex rel. Bennett v. Indus. Comm., 2016-Ohio-83.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Flora Bennett, :

Relator, :

v. : No. 14AP-632

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

D E C I S I O N

Rendered on January 12, 2016

Ronald E. Slipski and Charles Oldfield, for relator.

Weston Hurd, LLP, and Michael J. Spisak, for respondent
Aldi, Inc., Ohio.

Michael DeWine, Attorney General, and John R. Smart, for
respondent Industrial Commission of Ohio.

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, P.J.
{¶ 1} Relator, Flora Bennett, filed this original action, naming as respondents the
Industrial Commission of Ohio ("commission"), and her employer, Aldi, Inc., Ohio
("Aldi"). Relator requests a writ of mandamus ordering the commission to vacate its order
granting the request of Aldi for reconsideration, to reinstate the order of the staff hearing
officer ("SHO"), and to award permanent total disability ("PTD") compensation to her.
{¶ 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 a decision, including findings
No. 14AP-632 2

of fact and conclusions of law, which is appended hereto. The magistrate recommends
that this court grant the writ of mandamus.
{¶ 3} The commission sets forth one objection to the magistrate's decision:
The magistrate erred in substituting her judgment for that of
the commission on factual matters by finding the SHO had
relied on only the non-defective portion of Dr. Novak's report.

{¶ 4} Aldi sets forth three objections to the magistrate's decision:

1. The SHO should not have relied upon Mr. Ruth's report to
evaluate Bennett's non-medical disability factors.

2. The SHO incorrectly applied Dr. Gade-Pulido's conclusions.

3. The SHO did not discuss Bennett's failure to attempt
vocational rehabilitation.

{¶ 5} Neither the commission nor Aldi objects to the magistrate's findings of fact
and, therefore, we adopt them as our own.
{¶ 6} To obtain a writ of mandamus, a relator must demonstrate that it has a clear
legal right to the relief sought and that the commission has a clear legal duty to provide
such relief. State ex rel. AutoZone, Inc. v. Indus. Comm., 117 Ohio St.3d 186, 2008-Ohio-
541. "To show the clear legal right, relator must demonstrate that the commission abused
its discretion by entering an order unsupported by some evidence in the record." State ex
rel. Hughes v. Goodyear Tire & Rubber Co., 26 Ohio St.3d 71, 73 (1986). When the record
contains "some evidence" to support the commission's factual findings, a court may not
disturb the commission's findings in mandamus. State ex rel. Fiber-Lite Corp. v. Indus
Comm., 36 Ohio St.3d 202 (1988), syllabus. " 'Where a commission order is adequately
explained and based on some evidence, * * * the order will not be disturbed as
manifesting an abuse of discretion.' " State ex rel. Avalon Precision Casting Co. v. Indus.
Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, ¶ 9, quoting State ex rel. Mobley v. Indus.
Comm., 78 Ohio St.3d 579, 584 (1997).
{¶ 7} R.C. 4123.52 governs the continuing jurisdiction of the industrial
commission, providing that "[t]he jurisdiction of the industrial commission and the
authority of the administrator of workers’ compensation over each case is continuing, and
the commission may make such modification or change with respect to former findings or
No. 14AP-632 3

orders with respect thereto, as, in its opinion is justified." However, "[c]ontinuing
jurisdiction is not unlimited." State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454,
458-59 (1998), citing State ex rel. B & C Machine Co. v. Indus. Comm., 65 Ohio St.3d 538
(1992). The commission may exercise continuing jurisdiction where one of the following
prerequisites is present: "(1) new and changed circumstances, (2) fraud, (3) clear mistake
of fact, (4) clear mistake of law, or (5) error by inferior tribunal." State ex rel. Gobich v.
Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, ¶ 15, citing Nicholls at 459.
{¶ 8} In Gobich, the Supreme Court of Ohio provided further instruction on the
applicability of the commission's continuing jurisdiction:
The presence of one of these prerequisites must be clearly
articulated in any commission order seeking to exercise
reconsideration jurisdiction. This means that the prerequisite
must be both identified and explained. It is not enough to say,
for example, that there has been a clear error of law. The order
must also state what that error is. This ensures that the party
opposing reconsideration can prepare a meaningful defense to
the assertion that continuing jurisdiction is warranted. It also
permits a reviewing court to determine whether continuing
jurisdiction was properly invoked.

(Internal citations omitted.) Id. at ¶ 15. See also State ex rel. Robertson v. Indus. Comm.,
10th Dist. No. 05AP-479, 2006-Ohio-3553, ¶ 14. Thus, we must consider whether the
commission clearly identified and explained the prerequisite for its exercise of continuing
jurisdiction. Gobich at ¶ 15. When the commission identifies a clear mistake of law as the
basis for its continuing jurisdiction we must consider: "(1) Was there a mistake? (2) If so,
was it clear?" Id. at ¶ 17.
{¶ 9} The commission's exercise of continuing jurisdiction is subject to abuse-of-
discretion review. State ex rel. Allied Sys. Holdings v. Donders, 10th Dist. No. 11AP-960,
2012-Ohio-5855, ¶ 6, citing State ex rel. Akron Paint & Varnish, Inc. v. Gullotta, 131 Ohio
St.3d 231, 2012-Ohio-542. An abuse of discretion occurs when a decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 10} In its September 28, 2013 order, the commission stated that it was
exercising continuing jurisdiction based upon a clear mistake of law. Speficically, the
commission found that the SHO's "reliance on the 07/24/2012 report of Glen Novak,
No. 14AP-632 4

D.O., was improper, as Dr. Novak used an incorrect standard for assessing whether the
Injured Worker is capable of sustained remunerative employment, by finding the Injured
Worker could not work an eight hour a day/40 hour a week job."
{¶ 11} In its objection, the commission argues that the magistrate erred by
substituting her judgment for that of the commission by finding that the SHO only relied
on the non-defective portion of Dr. Novak's report. In support of this contention, the
commission argues that "[i]t is quite clear that the SHO made a mistake of law in relying
upon a doctor's opinion that was based upon an incorrect legal standard, as the
commission found." (Commission's Objection, 4.)
{¶ 12} None of the parties dispute that Dr. Novak applied the incorrect standard in
assessing whether relator was capable of performing sustained remunerative
employment. However, the record does not reflect that the SHO applied the standard
used by Dr. Novak in determining whether relator was capable of performing sustained
remunerative employment. Indeed, contrary to the finding of Dr. Novak that relator was
incapable of performing work on an eight-hour day, five-days-a-week basis, the SHO
found, based on the reports of Drs. Novak, Kepple, and Gade-Pulido, that relator "may be
able to engage in sustained remunerative employment." (SHO's Order, 2.) Based on this
finding, the SHO stated that "an analysis of * * * non-medical factors is necessary."
(SHO's Order, 2.) Had the SHO accepted as dispositive the conclusion of Dr. Novak that
relator was incapable of performing work based upon the incorrect standard, there would
have been no need for the SHO to examine the non-medical factors. See State ex rel. Gay
v. Mihm, 68 Ohio St.3d 315, 320 (1994) (finding that the commission must thoroughly
consider non-medical factors "where a claimant's medical capacity to do work is not
dispositive"); Ohio Adm.Code 4121-3-34(D)(2)(b) ("If, after hearing, the adjudicator finds
that injured worker, based on the medical impairment resulting from the allowed
conditions is unable to return to the former position of employment but may be able to
engage in sustained remunerative employment, the non-medical factors shall be
considered by the adjudicator.").
{¶ 13} Thus, because the SHO did not apply the incorrect standard used by Dr.
Novak and did not accept the conclusion of Dr. Novak that was based upon that incorrect
standard, we cannot agree with the commission that the SHO's order contained a mistake
No. 14AP-632 5

of law or that such mistake is clear on the face of the SHO's order. Gobich at ¶ 14-17.
Further, contrary to the commission's argument, this conclusion does not disturb the
deference ordinarily granted to the commission's factual findings. Rather, our
examination of the SHO's order is based upon the duty of a reviewing court to determine
whether the commission properly exercised continuing jurisdiction based upon a clear
mistake of law. Therefore, after careful and independent review, we find no merit to the
commission's objection.
{¶ 14} In its objections to the magistrate's decision, Aldi argues that the SHO
(1) should not have relied on Mr. Ruth's report, (2) incorrectly applied the conclusions of
Dr. Gade-Pulido, and (3) failed to discuss relator's lack of vocational rehabilitation. While
these arguments relate to whether the SHO correctly determined that relator was
precluded from all sustained remunerative employment, they do not address the issue
before us: whether the commission abused its discretion when it determined that the
SHO's decision contained a clear mistake of law by relying on the report of Dr. Novak. The
commission could have, but did not, state that the SHO's decision contained a mistake of
law based upon the grounds advanced by Aldi in its three objections. Because the
commission did not rely on such grounds in order to find that there was a clear mistake of
law, we find Aldi's objections to be outside the scope of the present matter and, therefore,
without merit. Gobich at ¶ 15 (finding that the order must state what the clear error of law
is so that the "party opposing reconsideration can prepare a meaningful defense to the
assertion that continuing jurisdiction is warranted"). See also Gwinn v. Ohio Elections
Comm., 187 Ohio App.3d 742, 2010-Ohio-1587, ¶ 18 (10th Dist.) (finding that, like a court,
an agency speaks through its record); Simmons v. Indus. Comm., 134 Ohio St. 456, 457
(1938) ("The Industrial Commission, just as a court, speaks through its record."); Rummel
v. Flowers, 28 Ohio St.2d 230, 236 (1972); Cook v. Mayfield, 45 Ohio St.3d 200, 202
(1989); Hurless v. Mead Corp., 29 Ohio App.2d 264, 269 (4th Dist.1971).
{¶ 15} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of the commission's and Aldi's objections, we find that the
magistrate has properly determined the pertinent facts and concluded that a writ of
mandamus is warranted. We, therefore, overrule the commission's and Aldi's objections
to the magistrate's decision and adopt the findings of fact and conclusions of law of the
No. 14AP-632 6

magistrate, with the exception of the first line of the last sentence of ¶ 40 of the appended
magistrate's decision, where we change the reference to "commission" to "SHO," and the
first sentence of ¶ 42, which we delete. Accordingly, the requested writ of mandamus is
hereby granted, directing the commission to vacate its order granting Aldi's request for
reconsideration and to reinstate the order of the SHO awarding relator PTD
compensation.
Objections overruled; writ granted.

KLATT and BRUNNER, JJ., concur.
_________________
No. 14AP-632 7

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Flora Bennett, :

Relator, :

v. : No. 14AP-632

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

MAGISTRATE'S DECISION

Rendered on July 27, 2015

Ronald E. Slipski and Charles Oldfield, for relator.

Weston Hurd, LLP, and Michael J. Spisak, for respondent
Aldi, Inc., Ohio.

Michael DeWine, Attorney General, and John R. Smart, for
respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶ 16} Relator, Flora Bennett, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order granting the request of respondent, Aldi Inc., Ohio
("employer") for reconsideration, to reinstate the order of the staff hearing officer
("SHO"), and award permanent total disability ("PTD") compensation to her.
No. 14AP-632 8

Findings of Fact:
{¶ 17} 1. Relator has sustained three work-related injuries during the course of her
employment with the employer and her workers' compensation claims have been allowed
as follows:
99-361327: "Sprain of right ribs."

02-860414: "Sprain of right ankle; contusion of right foot;
fracture right metatarsal closed."

04-814518: "Sprain/strain right shoulder; right shoulder
bursitis; right shoulder impingement syndrome; right rotator
cuff tear."

{¶ 18} 2. The most significant of relator's claims is the 2004 claim which is
allowed for various conditions involving relator's right shoulder. As a result of this injury,
relator has undergone three separate surgical procedures and is left with significant
restrictions involving her right upper extremity.
{¶ 19} 3. On September 5, 2012, relator filed her application for PTD
compensation. Relator's application was supported by the July 24, 2012 independent
medical examination prepared by Glen J. Novak, D.O. In his report, Dr. Novak reported
the following: local tenderness along the superior aspect of the right shoulder; obvious
wasting of adjacent musculature at the right deltoid; deep tendon reflexes in tact and
symmetric bilaterally; no hypoesthesia. Active motion testing of the right shoulder
demonstrated the following: flexion limited to 60 degrees, extension limited to 40
degrees, abduction limited to 50 degrees, adduction in tact to 50 degrees, external
rotation limited to 50 degrees, and internal rotation limited to 60 degrees. Ultimately, Dr.
Novak concluded that relator was not capable of performing sustained remunerative
employment, stating:
Having examined this injured worker on 7/24/12 it is within
a reasonable degree of medical certainty that, in my medical
opinion, this injured worker is permanently and totally
impaired from any gainful employment as a result of the
above conditions. Due to her marked limitations of her right
shoulder and right lower extremity, in my medical opinion,
and within a reasonable degree of medical certainty, she is
No. 14AP-632 9

not capable of performing the physical demands required for
an eight hour day, five day a week basis.

{¶ 20} 4. Relator was also examined by Richard N. Kepple, M.D. In his
September 24, 2012 report, Dr. Kepple identified the allowed conditions in relator's
claims, discussed the history of her injuries, and identified the medical records which he
reviewed. As part of his physical examination, Dr. Kepple noted the following: no
atrophy or asymmetry in either shoulder; tenderness over the last aspect of the right
shoulder in the area of the surgical scar; mild generalized discomfort with motion of the
right shoulder; crepitation with motion of both shoulders; and impingement tests mildly
positive on the right and negative on the left. Range of motion indicated: flexion at 80
degrees on the right and 120 degrees on the left, extension 20 degrees on the right and 25
degrees on the left, abduction 70 degrees on the right and 130 degrees on the left,
adduction 15 degrees on the right and 40 degrees on the left, internal rotation 25 degrees
on the right and 40 degrees on the left, and external rotation 70 degrees on the right and
90 degrees on the left. Dr. Kepple ultimately concluded that relator would be capable of
engaging in some sustained remunerative employment with permanent restrictions.
Specifically, Dr. Kepple concluded:
Ms. Bennett's permanent restrictions are related to her right
shoulder injury in February 2004. She requires no
restrictions for the 1999 right rib injury or the 2002 right
ankle/foot injury as the allowed conditions in both of these
claims have resolved and reached maximum medical
improvement.

Relative to the right shoulder, Ms. Bennett can work in a
capacity in which activities with the right upper extremity
are limited to the area between waist and shoulder level. She
should not lift, carry, push or pull more than 5 pounds with
her right upper extremity frequently or 10 pounds
occasionally. Repetitive or continuous activities with the
right extremity should be avoided unless the right upper
extremity is supported by a table or counter top.

{¶ 21} 5. Relator was also examined by Karen Gade-Pulido, M.D. In her
December 6, 2012 report, Dr. Gade-Pulido identified the allowed conditions in relator's
claims, discussed the history of her injuries, and identified the medical records which she
No. 14AP-632 10

reviewed. After noting that relator was guarded with range of motion of the right
shoulder, but willing to participate in an assessment, Dr. Gade-Pulido noted the following
physical findings upon examination: a lack of joint effusion, flexion 160 degrees,
extension 40 degrees, abduction 160 degrees, adduction 40 degrees, external rotation 70
degrees, and internal rotation 80 degrees. Dr. Gade-Pulido indicated there was no
evidence of atrophy in the right upper extremity with normal bulk and tone of the
muscles, and that relator had full range of motion of her right elbow, wrist and hand, and
there was no evidence of edema in the upper extremity. Thereafter, Dr. Gade-Pulido
opined relator had a five percent whole person impairment with regard to her allowed
conditions relative to her right shoulder and concluded that relator could perform
sedentary work with the following restrictions:
Relative to the allowed right shoulder condition, she is
physically capable of a sedentary to light physical demand
level of activity. She should not lift more than 10#
occasionally with the right arm (bimanually) and she should
perform no repetitive or overhead activities with the
dominant right arm. There are no restrictions for the
nondominant left arm.

{¶ 22} 6. There are two vocational reports in the stipulation of evidence. The first
is the October 29, 2012 report of John Ruth, MS. Mr. Ruth identified the following
barriers to competitive employment:
[One] Age (69).
[Two] Range of motion restrictions.
[Three] Poor sitting/standing/walking tolerance.
[Four] Medications causing unusual side effects interfering
with safety.
[Five] Medical contraindications to employment.
[Six] Limited lifting capacity.
[Seven] Poor manual dexterity capabilities.
[Eight] Lack of transferability of past relevant work
experience.
[Nine] Lack of rehabilitation potential.

{¶ 23} Based on relator's limitations concerning her shoulder, Mr. Ruth concluded
that she would not be able to perform routine sedentary work finding that her work
restrictions could not be met in real world occupations. Mr. Ruth also noted that relator
No. 14AP-632 11

had actively pursued rehabilitation efforts including three surgeries, physical therapy, use
of a TENS unit, pharmacological therapy, aquatic therapy, and vocational evaluation
services all to no avail. Ultimately, Mr. Ruth concluded that relator was not employable
and had no rehabilitation potential, stating:
In summation, it is this evaluator's opinion that Ms. Flora
Bennett will be unable to successfully seek or sustain
remunerative employment now or in the future. Serious
barriers prohibiting this woman's return to work include a
chronological age of 69 placing her at the high end of the
approaching advanced age category clearly not allowing her
to adapt to new work situations nor to perform work in
competition with others, range of motion restrictions not
permitting her to perform work in an overhead, bent or
crouched position interfering with her ability to perform all
aspects of sedentary work, very limited sitt-
ing/standing/walking tolerance interfering with her ability to
perform all aspects of sedentary work; medications causing
unusual side effects interfering with this woman's safety in
any work environment and potentially interfering with the
safety of others working around her in an industrial
environment, medical contraindications to employment,
limited lifting capacity not allowing her to perform all
aspects of sedentary work on a competitive basis, poor
manual dexterity capabilities not allowing this woman to
perform assembly work or jobs involving any significant
degree of manual manipulation activities, a clear lack of
transferability of past relevant work experience to a more
sedentary occupation this woman could physically perform
preventing her from bringing salable vocational skills to an
employment interview or work site, and a clear lack of
rehabilitation potential not allowing her to benefit from
further rehabilitation services to the point of returning to
work.

{¶ 24} The stipulation of evidence also includes the February 13, 2013 vocational
report of J. Kilbane, M.Ed. After noting that relator's job history was classified as
unskilled to semi-skilled to skilled work in the light and medium capacity levels, Ms.
Kilbane opined that relator had the following transferrable skills:
Follow instructions
Work independently
Work with others
Influence and direct others
No. 14AP-632 12

Record detailed information
Learn new information
Read, write, and perform basic math
Provide customer service
Ability to process monetary transactions
Perform basic computer knowledge
Comprehend basic medical terminology

{¶ 25} Ms. Kilbane opined relator was capable of returning to work as a cashier
noting, however, that she would not be able to work in a large grocery store where she
would be exposed to lifting, pushing, and pulling heavier objects. He concluded she could
work as a cashier in a hospital cafeteria, restaurant, movie theatre, small store or parking
garage, and could perform the job of a cashier one-handed if necessary. He also
concluded that relator was capable of participating in vocational rehabilitation services
and would benefit from such services as she tries to re-enter the labor market. Ultimately,
Ms. Kilbane concluded:
Based on the consensus of the opinions of the medical
evaluators, Ms. Bennett is capable of work activity in at least
sedentary work capacity level. There is repeated evidence
that she is self-limiting her physical abilities, which is
supported by several medical exams. Mr. Ruth administered
vocational tests that lacked validity measures and that asked
Ms. Bennett to perform tasks outside of her restrictions. Mr.
Ruth chose not to test Ms. Bennett's abilities within her
restrictions, such as administering work samples to evaluate
her clerical and customer service skills.

Ms. Bennett is able to work as a cashier, where she has
previous experience and has direct transferable skills, in the
sedentary work capacity level. She is able to participate in
vocational rehabilitation. Her age is not a barrier to
employment.

It is my opinion that Ms. Bennett is capable of sustained
remunerative employment based on the allowed conditions
of the claims, her residual physical capabilities, age,
education, work history and skills.

{¶ 26} 7. Relator's application was heard before an SHO on April 23, 2013. The
SHO discussed the medical reports of Drs. Novak, Kepple, and Gade-Pulido specifically
noting the restrictions identified by those physicians. Ultimately, the SHO relied on all
No. 14AP-632 13

three reports to find that relator may be able to engage in sustained remunerative
employment, stating:
Therefore, based upon a review of the medical opinions of
Dr. Gade-Pulido, Dr. Novak, and Dr. Kepple, the Staff
Hearing Officer finds that based upon the Injured Worker's
medical impairment, the Injured Worker may be able to
engage in sustained remunerative employment. Thus, an
analysis of Injured Worker's non-medical factors is
necessary.

{¶ 27} After finding that relator may be able to engage in limited sedentary work,
the SHO discussed the non-medical disability factors and the vocational reports
submitted. The SHO specifically stated:
The Injured Worker is 69 years of age and has a high school
education. Per the transcript of today's hearing, the Staff
Hearing Officer finds that the Injured Worker indicated that
she has the ability to read, write, and do basic math. See
Transcript p. six. Pursuant to the Injured Worker's IC-2
application, the Injured Worker's work history consisted of
the following jobs. From 1978 through 1985, the Injured
Worker worked as a meat clerk in a grocery store. From
August 1986 through 1996, the Injured Worker worked as a
public bus driver. From November 1996 through February
1997, the Injured Worker worked as a meat clerk for a
grocery store. From 1997 through 2004, the Injured Worker
worked as a cashier, substitute assistant, and assistant
manager for a grocery store.

The Staff Hearing Officer finds that the claimant is 69 years
of age, which is considered to be a person closely
approaching advanced age. In analyzing this factor, the Staff
Hearing Officer finds this factor to be a negative factor in the
Injured Worker's potential for re-employment because she
has surpassed the average retirement age of 65 years of age.

The Staff Hearing Officer finds that the Injured Worker has a
high school education. The Staff Hearing Officer specifically
finds that the Injured Worker completed the ninth grade of
formal education and obtained her GED in 1977 per the
Transcript pp. 5,6. The Injured Worker also demonstrated
initiative in obtaining her GED. The Staff Hearing Officer
finds that the Injured Worker's education is a positive factor
in her re-employment potential because it provides her with
No. 14AP-632 14

the necessary intellectual skills to obtain basic, entry level
work.

The Staff Hearing Officer finds that the Injured Worker's
work experience is a negative factor regarding the Injured
Worker's potential for re-employment. The Staff Hearing
Officer finds that the Injured Worker has a varied work
history, working approximately seven and a half years as a
meat clerk, ten years as a bus driver, and seven years at
Aldi's, including work as a working manager. However, the
Staff Hearing Officer finds that this work history, consisting
of work ranging in strength level from light to medium and
in [a] skill level from semi-skilled to skilled work, does not
provide the Injured Worker with any transferrable skills into
limited sedentary work as referenced by Dr. Gade-Pulido.

The Staff Hearing Officer finds that John Ruth, M.S.
performed a vocational evaluation of the Injured Worker and
issued the 10/29/2012 report. Mr. Ruth indicated that the
Injured Worker will be unable to successfully seek or sustain
remunerative employment now or in the future. Mr. Ruth
indicated that serious barriers prohibiting the Injured
Worker's return to work included chronological age, adaptive
skills, medications, range of motion issues, limited lifting
capacity, and the lack of transferability of skills. The
vocational rehabilitation evaluator concluded that the
Injured Worker lacked rehabilitation potential.

The Staff Hearing Officer also finds that Janet Kilbane,
M.Ed. performed a vocational evaluation of the Injured
Worker and issued the 02/13/2013 report. Ms. Kilbane
indicated that the Injured Worker was capable of returning
to work as a cashier. The vocational evaluator indicated that
the Injured Worker would not be able to work as a cashier in
large grocery stores where she would be exposed to lifting,
pushing, and pulling heavier objects, but she could work as a
cashier in a hospital cafeteria, restaurant, movie theater,
small store, or parking garage. She also indicated that the
Injured Worker could perform the job of a cashier one-
handed if necessary. The Staff Hearing Officer does not agree
with her conclusions. Specifically, the Staff Hearing Officer
finds that all of the medical evidence on file indicated that
the Injured Worker is unable to use her right upper
extremity in a repetitive manner. The Injured Worker's
former positions all involved repetitive use of the right upper
extremity, and the Injured Worker's age and adaptive skills
No. 14AP-632 15

would be barriers to rehabilitative efforts. Reviewing the
Injured Worker's age, education, and work experience, the
Staff Hearing Officer concurs with the opinion of Mr. Ruth
and specifically finds that the Injured Worker's non-medical
factors, as a whole, have a negative impact on the Injured
Worker's ability to work or to be retrained.

Therefore, the Staff Hearing Officer finds that the Injured
Worker is precluded from all sustained remunerative
employment, and therefore is permanently and totally
disabled. Permanent total disability benefits are to begin
04/23/2013, the date of this hearing. The Staff Hearing
Officer finds that this start date is appropriate based upon
the finding that the Injured Worker is unable to engage in
sustained remunerative employment due to the foregoing
analysis of the non-medical disability factors and a review of
the medical evidence on file that she is capable of limited
sedentary work.

{¶ 28} 8. The employer filed a motion for reconsideration arguing, in part, that the
SHO order contained a clear mistake of law because the report of Dr. Novak did not
constitute some evidence upon which the commission could rely because Dr. Novak
applied an incorrect standard for assessing whether relator was capable of performing
sustained remunerative employment. Specifically, the employer argued that Dr. Novak's
opinion that relator could not work eight hours a day, five days a week, was not some
evidence that relator was permanently and totally disabled inasmuch as part-time work
can be considered some sustained remunerative employment.
{¶ 29} 9. In an order mailed July 31, 2013, the commission vacated the prior SHO
order finding that the employer presented evidence of sufficient probative value to award
adjudication of the request following a hearing.
{¶ 30} 10. A hearing was held before the commission on August 22, 2013, at that
time, the commission determined that the prior SHO order did contain a clear mistake of
law, stating:
08/22/2013 - After further review and discussion, it is the
finding of the Industrial Commission that the Employer has
met its burden of proving that the Staff Hearing Officer
order, issued 05/15/2013, contains a clear mistake of law.
Specifically, reliance on the 07/24/2013 report of Glen
Novak, D.O., was improper, as Dr. Novak used an incorrect
No. 14AP-632 16

standard for assessing whether the Injured Worker is
capable of sustained remunerative employment, by finding
the Injured Worker could not work an eight hour a day/40
hour a week job. Therefore, the Commission exercises
continuing jurisdiction pursuant to R.C. 4123.52 and State ex
rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 692 N.E.2d
188 (1998), State ex rel. Foster v. Indus. Comm., 85 Ohio
St.3d 320, 707 N.E.2d 1122 (1999), and State ex rel.
Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-
5990, 817 N.E.2d 398, in order to correct this error.

{¶ 31} Thereafter, the commission relied on the medical reports of Drs. Kepple and
Gade-Pulido who found that relator could perform at a sedentary level with certain
specific permanent restrictions primarily involving her right upper extremity. The
commission discussed the non-medical disability factors, reaching a different conclusion
than the SHO had, and found that claimant was capable of performing some sustained
remunerative employment. Specifically, the commission found that relator's age of 70
years was a negative factor, but not a bar to re-employment, that her ability to obtain her
GED in 1977 was at least a neutral factor, and that her work history as a meat clerk in a
grocery store, a passenger bus driver, a cashier, and an assistant manager for her
employer involved some duties which she could currently perform including placing
orders for the entire store, delegating cashiers, scanning registers, counting money and
cashier's drawers, pick-up by Brinks, doing payroll entries, and inventory. Thereafter, the
commission found that relator's lack of vocational rehabilitation was significant,
specifically since she made no effort from the time of her last surgery in late 2007 to the
present time. The commission also relied on the vocational rehabilitation evaluation of
Ms. Kilbane who found that relator could return to work as a cashier, provided she not be
required to handle heavy objects, and that she maintain transferable skills that would
allow for the performance of other jobs.
{¶ 32} 11. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 33} For the reasons that follow, it is this magistrate's decision that this court
should issue a writ of mandamus ordering the commission to vacate its order exercising
No. 14AP-632 17

its continuing jurisdiction, and the April 23, 2013 SHO order should be re-instated and
PTD compensation awarded.
{¶ 34} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 35} 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). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 36} The relevant inquiry in a determination of permanent total disability is
claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic
v. Indus. Comm., 69 Ohio St.3d 693 (1994). Generally, in making this determination, the
commission must consider not only medical impairments but also the claimant's age,
education, work record and other relevant non-medical factors. State ex rel. Stephenson
v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's medical capacity to work is
not dispositive if the claimant's non-medical factors foreclose employability. State ex rel.
Gay v. Mihm, 68 Ohio St.3d 315 (1994). The commission must also specify in its order
what evidence has been relied upon and briefly explain the reasoning for its decision.
State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991).
{¶ 37} Pursuant to R.C. 4123.52, "[t]he jurisdiction of the industrial commission
and the authority of the administrator of workers' compensation over each case is
No. 14AP-632 18

continuing, and the commission may make such modification or change with respect to
former findings or orders with respect thereto, as, in its opinion is justified." In State ex
rel. B & C Machine Co. v. Indus. Comm., 65 Ohio St.3d 538, 541-42 (1992), the court
examined the judicially-carved circumstances under which continuing jurisdiction may be
exercised, and stated as follows:
R.C. 4123.52 contains a broad grant of authority. However,
we are aware that the commission's continuing jurisdiction is
not unlimited. See, e.g., State ex rel. Gatlin v. Yellow Freight
System, Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480
N.E.2d 487 (commission has inherent power to reconsider
its order for a reasonable period of time absent statutory or
administrative restrictions); State ex rel. Cuyahoga Hts. Bd.
of Edn. v. Johnston (1979), 58 Ohio St.2d 132, 12 O.O.3d
128, 388 N.E.2d 1383 (just cause for modification of a prior
order includes new and changed conditions); State ex rel.
Weimer v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16
O.O.3d 174, 404 N.E.2d 149 (continuing jurisdiction exists
when prior order is clearly a mistake of fact); State ex rel.
Kilgore v. Indus. Comm. (1930), 123 Ohio St. 164, 9 Ohio
Law Abs. 62, 174 N.E. 345 (commission has continuing
jurisdiction in cases involving fraud); State ex rel. Manns v.
Indus. Comm. (1988), 39 Ohio St.3d 188, 529 N.E.2d 1379
(an error by an inferior tribunal is a sufficient reason to
invoke continuing jurisdiction); and State ex rel. Saunders v.
Metal Container Corp. (1990), 52 Ohio St.3d 85, 86, 556
N.E.2d 168, 170 (mistake must be "sufficient to invoke the
continuing jurisdiction provisions of R.C. 4123.52"). Today,
we expand the list set forth above and hold that the
Industrial Commission has the authority pursuant to R.C.
4123.52 to modify a prior order that is clearly a mistake of
law.

{¶ 38} In the present case, the commission determined that the SHO order
contained a clear mistake of law. Specifically, one of the three medical reports upon
which the SHO relied was the July 24, 2012 report of Dr. Novak who, after providing his
physical findings upon examination, concluded:
Having examined this injured worker on 7/24/12 it is within
a reasonable degree of medical certainty that, in my medical
opinion, this injured worker is permanently and totally
impaired from any gainful employment as a result of the
above conditions. Due to her marked limitations of her right
No. 14AP-632 19

shoulder and right lower extremity, in my medical opinion,
and within a reasonable degree of medical certainty, she is
not capable of performing the physical demands required for
an eight hour day, five day a week basis.

{¶ 39} The magistrate does agree with the commission's determination that Dr.
Novak used the wrong standard. Specifically, Dr. Novak concluded that relator could not
perform the physical demands required for an eight-hour day, five days a week. This is
not the proper standard to determine whether or not an injured worker can perform some
sustained remunerative employment.
{¶ 40} Despite the fact that the magistrate agrees that Dr. Novak used an improper
standard, the magistrate specifically notes that the SHO did not accept Dr. Novak's
ultimate conclusion that relator could not perform sustained remunerative employment.
The SHO relied on the physical limitations noted by the three doctors. Had the SHO
relied on Dr. Novak's ultimate conclusion that relator could not return to work based on
his opinion that she could not work full-time, and had the SHO not considered the non-
medical disability factors, the order would have contained a clear mistake of law.
However, as noted in the findings of fact, the commission relied on three medical reports
from Drs. Novak, Kepple, and Gade-Pulido and, after concluding that relator may be
capable of performing sedentary work with certain permanent restrictions, the SHO
examined, considered, analyzed the non-medical disability factors, and concluded that:
Specifically, the Staff Hearing Officer finds that all of the
medical evidence on file indicated that the Injured Worker is
unable to use her right upper extremity in a repetitive
manner.

{¶ 41} This was clearly based on the reports of Drs. Gade-Pulido and Kepple whose
findings the SHO noted previously:
Dr. Gade-Pulido opined sedentary work with further
limitations of no repetitive or overhead use of the right upper
extremity.

***

Repetitive or continuous activities with the right extremity
should be avoided unless the right upper extremity is
supported by a table or counter top.
No. 14AP-632 20

{¶ 42} In the magistrate's opinion, the only portion of Dr. Novak's report upon
which the SHO relied was his opinion that relator could not work eight hours a day, five
days a week. Drs. Kepple and Gade-Pulido provided specific restrictions related to
relator's right upper extremity, which the SHO found limited her abilities significantly
enough that, after consideration was given to the non-medical disability factors, she was
unable to perform any sustained remunerative employment. Upon rehearing, the
commission relied on the same medical evidence upon which the SHO relied, but reached
a different ultimate conclusion after discussing the non-medical disability factors. Given
that the SHO did not rely on Dr. Novak's conclusion that relator could not work (which
was based on an inappropriate standard), the SHO's obvious reliance on the reports of
Drs. Kepple and Gade-Pulido, and the significant restrictions they provided for relator's
right upper extremity, the magistrate finds that the commission abused its discretion
when it determined that the prior SHO order contained a clear mistake of law, and abused
its discretion when it exercised its continuing jurisdiction.
{¶ 43} Based on the foregoing, it is this magistrate's decision that this court should
issue a writ of mandamus ordering the commission to vacate its August 22, 2013 order
exercising its continuing jurisdiction, ultimately denying relator PTD compensation, and
reinstate the April 23, 2013 SHO order which awarded relator PTD compensation.

/S/ MAGISTRATE
STEPHANIE BISCA

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).