State ex rel. R & L Shared Servs., L.L.C. v. Indus. Comm.

[Cite as State ex rel. R & L Shared Servs., L.L.C. v. Indus. Comm., 2016-Ohio-1082.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. :
R&L [Carriers] Shared Services, LLC,
:
Relator,
:
v. No. 14AP-1018
:
Industrial Commission of Ohio (REGULAR CALENDAR)
and Terry Phillips, :

Respondents. :

D E C I S I O N

Rendered on March 17, 2016

On brief: Reminger Co., L.P.A., and Melvin J. Davis, for
relator.

On brief: Michael DeWine, Attorney General, and Lisa R.
Miller, for respondent Industrial Commission of Ohio.

On brief: Fox & Fox Co., LPA, Bernard C. Fox, Jr., and
Brent P. Martini, for respondent Terry Phillips.

IN MANDAMUS
ON OBJECTIONS TO MAGISTRATE'S DECISION

KLATT, J.
{¶ 1} Relator, R&L Carriers Shared Services, LLC, commenced this original action
in mandamus seeking an order compelling respondent, Industrial Commission of Ohio
("commission"), to vacate the August 27, 2014 order of its staff hearing officer ("SHO")
that awarded permanent total disability ("PTD") compensation to respondent, Terry
Phillips ("claimant"), and to enter an order denying said compensation. In the
alternative, relator requested an order compelling respondent to vacate the November 7,
No. 14AP-1018 2

2013 order of its SHO that denied relator's motion to depose claimant's spouse and a co-
worker, and to enter an order that permits said depositions and then re-adjudicates
claimant's PTD application.
{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found: (1) Dr.
Soin's August 19, 2013 report is not some evidence upon which the commission could rely
to support its finding that claimant's industrial injury prohibits all sustained remunerative
employment; (2) Dr. Rosen's September 4, 2013 report is not some evidence upon which
the commission could rely to support its determination that claimant's allowed
psychological/psychiatric condition precludes the claimant from all sustained
remunerative employment; (3) Dr. Berg's January 11, 2014 report is some evidence that
supports the commission's determination that the allowed psychological/psychiatric
condition prohibits all sustained remunerative employment; (4) the commission did not
abuse its discretion in not considering the nonmedical disability factors; (5) because Dr.
Berg's January 11, 2014 report is the only evidence that can provide support for the
commission's PTD determination, the commission's order must be adjusted to reflect a
commencement date that coincides with the date of Dr. Berg's report; and (6) the
commission did not abuse its discretion when it refused to disturb the SHO's order
denying relator's motion to depose the claimant's spouse and a co-worker. Based upon
these findings, the magistrate has recommended that we issue a writ of mandamus
ordering the commission to amend the August 27, 2014 order of its SHO to eliminate the
report of Dr. Soin and Dr. Rosen from evidentiary reliance and to adjust the start date of
claimant's PTD compensation to January 11, 2014 to coincide with the date of Dr. Berg's
report.
{¶ 3} Relator has filed objections to the magistrate's decision. In its first
objection, relator contends that the magistrate erred by concluding that Dr. Berg's
January 11, 2014 report constitutes some evidence to support an award of PTD
compensation. Relator argues that Dr. Berg's report could not be considered because it is
internally inconsistent, vague, and ambiguous. We disagree.
No. 14AP-1018 3

{¶ 4} It is undisputed that on the occupational activity assessment form, Dr. Berg
checked a box indicating that the claimant is incapable of work. There is nothing
equivocal about Dr. Berg's opinion on this critical point. Relator makes much of the fact
that Dr. Berg also noted on the form that the claimant has limitations arising from
impairments due to his allowed claim. Although Dr. Berg was not required to list these
limitations, they are essentially the same limitations noted in the body of his report.
These limitations, three of which Dr. Berg described as "marked limitations," are not
inconsistent with Dr. Berg's determination that the claimant is incapable of sustained
remunerative employment. Relator's assertion that Dr. Berg may have checked the wrong
box is pure speculation. We agree with the magistrate's determination that Dr. Berg's
report was properly considered by the commission and is some evidence supporting the
award of PTD compensation. Therefore, we overrule relator's first objection.
{¶ 5} In its second objection, relator contends that the magistrate erred by
concluding that the claimant was not obligated to mitigate his disability. Essentially,
relator contends that the magistrate should have granted a writ because the commission
did not evaluate the nonmedical factors when it granted the claimant PTD. We disagree.
{¶ 6} As pointed out by the magistrate, the commission need not conduct an
analysis of nonmedical factors when the claimant is incapable of sustained remunerative
employment based on an allowed medical or psychological/psychiatric condition. State
ex rel. Galion Mfg. Div. v. Haygood, 60 Ohio St.3d 38, 40 (if claimant's medical
conditions foreclose gainful employment, there is no requirement to consider nonmedical
factors); State ex rel. Speelman v. Indus. Comm., 73 Ohio App.3d 757, 762 (10th
Dist.1992). Because Dr. Berg's report is some evidence that the claimant is incapable of
working based upon his allowed psychological/psychiatric claim, it was unnecessary for
the commission to examine the nonmedical factors. For this reason, we overrule relator's
second objection.
{¶ 7} In its third and last objection, relator contends that the magistrate erred by
concluding that the commission did not abuse its discretion when it denied relator's
motion to depose two lay witnesses prior to the hearing. Again, we disagree.
{¶ 8} As noted by the magistrate, the applicable Ohio Administrative Code
provision makes no provision for deposing the type of fact witnesses that were the subject
No. 14AP-1018 4

of relator's motion. We agree with the magistrate's assessment that the free pre-hearing
exchange of information relevant to a claim referenced in Ohio Adm.Code 4121-3-
09(A)(2) can take place without depositions. We agree with the magistrate that the
commission did not abuse its discretion when it refused to disturb the SHO's order that
denied relator's motion to take depositions. Therefore, we overrule relator's third
objection.
{¶ 9} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we grant a writ of
mandamus to the limited extent noted in the magistrate's decision, but deny relator's
further request for relief.
Objections overruled;
writ of mandamus granted in part and denied in part.

TYACK and BRUNNER, JJ., concur.
No. 14AP-1018 5

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. :
R & L [Carriers] Shared Services, LLC,
:
Relator,
:
v. No. 14AP-1018
:
Industrial Commission of Ohio (REGULAR CALENDAR)
and Terry Phillips, :

Respondents. :

MAGISTRATE'S DECISION

Rendered on October 6, 2015

Reminger Co., L.P.A., and Melvin J. Davis, for relator.

Michael DeWine, Attorney General, and Lisa R. Miller, for
respondent Industrial Commission of Ohio.

Fox & Fox Co., LPA, Bernard C. Fox, Jr., and Brent P.
Martini, for respondent Terry Phillips.

IN MANDAMUS

{¶ 10} In this original action, relator, R & L Carriers Shared Services, LLC ("R & L"
or "relator"), requests a writ of mandamus ordering respondent, Industrial Commission
of Ohio ("commission"), to vacate the August 27, 2014 order of its staff hearing officer
("SHO") awarding permanent total disability ("PTD") compensation to respondent, Terry
Phillips ("claimant"), and to enter an order denying the compensation. In the alternative,
relator requests that the writ order the commission to vacate the November 7, 2013 order
of its SHO denying relator's motion to depose claimant's spouse and a co-worker, and to
No. 14AP-1018 6

enter an order permitting the depositions and re-adjudicating the PTD application
following such depositions.
Findings of Fact:
{¶ 11} 1. On April 8, 2011, claimant injured his right arm when he was lifting
boxes from the rear of a trailer. On that date, claimant was employed by relator, a self-
insured employer under Ohio's workers' compensation laws.
{¶ 12} 2. The industrial claim (No. 11-818580) is allowed for:
Traumatic right biceps tendon tear; complex regional pain
syndrome; major depressive disorder, single episode, severe
without psychotic features with significant anxiety.

{¶ 13} 3. According to a November 11, 2013 report from Eugene Lin, M.D., who
examined claimant at the request of relator, and a January 8, 2014 report from
Stephen W. Duritsch, M.D. who examined claimant at the commission's request, during
2012 Amol Soin, M.D., permanently implanted a spinal chord stimulator. According to
the report of Dr. Duritsch, the spinal chord stimulator with lead was placed by Dr. Soin "at
the top of C5 to the right of midline on 08/06/2012 * * *."
{¶ 14} 4. On March 12, 2013, following his examination, Dr. Soin issued a four-
page report which is described as a "Chronic Pain Evaluation."
{¶ 15} 5. On August 19, 2013, Dr. Soin again examined claimant and thereafter
issued a four-page report described as a "Chronic Pain Evaluation."
{¶ 16} In his report, under the heading "History of Present Illness," Dr. Soin wrote:
Chronic Pain Evaluation Terry is a 54 year male whose
chief complaint is pain located in the neck, left shoulder, left
arm and left hand. The patient was asked to describe his pain
using adjectives. He describes the pain as tingling, burning,
dull, sharp, aching, throbbing, shooting, constant and
intermittent. I would like to reference the patient's filled out
forms scanned into the chart and reviewed by me as part of
the HPI. These forms were reviewed and discussed with the
patient by me. Terry rates the total pain level today as a 5 out
of 10, with 10 being the worst pain that the patient has on a
chronic daily basis. The patient states that the least amount
of pain they have had over the past week is a 3 out of 10. The
patient states that the most amount of pain they have
experienced over the past week is a 10 out of 10. When asked
if the patient has had an improvement in activity level since
the first office visit, the patient said no. He mentions that the
No. 14AP-1018 7

pain has been present for a few months. Terry states that the
pain is improved with nothing helps. The patient states that
the pain is made worse with activity. The patient was asked
how far they can walk before the pain prevents them from
walking, and Terry responded that they can walk about one
block. I asked Terry if he has an[y] weakness
associated with the pain and the response was yes.
Terry was asked if he feels numbness associated with his
pain and he answered yes. The patient denies loss of control
of bowl and bladder function. Terry is not able to sleep
through the night because the pain condition prevents them
from getting restful sleep.

(Emphasis sic.) (Sic passim.)

{¶ 17} Under "Physical Examination," Dr. Soin wrote:
Cervical Spine: Inspection reveals normal cervical
lordosis. Inspection of the cervical spine reveals normal
lordosis and the c-spine appears supple. Palpation of cervical
facets did not elicit an extensive amount of pain. Chin to
chest flexion test was normal and flexion was a full 60
degrees without pain. Chin to ceiling extension test was
normal and achieved a full 75 degrees without pain. Lateral
bending of the neck at 45 degrees did not cause pain. There
were some trigger points felt in around the paraspinal
cervical muscles. Spurlings test was carried out performed by
extending the neck, rotating the head, and then applied
downward pressure on the head. The pain did radiate into
the limb ipsilateral to the side that the head is rotated to the
affected side.

Lumbar Spine: Inspection of the lumbar spine reveals no
scoliosis. Patient has pain to palpation in the lower lumbar
spine. Facet loading was carried out whereby pressure was
placed on the paravertebral segments in the lower lumbar
spine while the patient twisted and it elicited pain. Finger to
floor flexion with the knee extended was less than 90 degrees
and limited by pain and stiffness, extension to 30 degrees
was limited due to pain, as well as lateral bending to 25
degrees. Patient's straight leg raise was negative and it did
not elicit pain in the lower lumbar spine. Additionally, at this
point in time the patient did not not[e] any numbness or
tingling, pain or signs of radiculopathy on the physical exam.

{¶ 18} Appearing on page four of the report, under the heading "Assessment and
Plan," Dr. Soin listed ten statements as follows:
No. 14AP-1018 8

[One] -Left arm pain is new.

[Two] -[T]his is [A]nthem not [BWC] what I am seeing him
about today.
[Three] - Filing on the right hand.

[Four] -[H]e states he Cannot work.

[Five] -R & L wants him to come back to work.

[Six] -His hand is completely contracted.

[Seven] -I am not sure this is practical for him to work with
his non functioning hand.

[Eight] -There is no way that Terry can work.

[Nine] -Now he has [sic] having left arm pain in addition to
the right.

[Ten] -Terry is unable to work due to severe pain and
contracted arm that is non functional.

{¶ 19} Also, on page four of the report, under the heading "Prescription," Dr. Soin
lists several prescribed medications and their dosing instructions.
{¶ 20} 6. On September 4, 2013, psychiatrist, Steven R. Rosen, D.O., wrote a one-
page letter or report to claimant's counsel. The typewritten body of Dr. Rosen's report,
states:
This letter is concerning Terry Phillips and his emotional
issues. Terry is suffering from depression directly related to
his disability. He can no longer do the things that he used to
do; he is dependent on others. These factors have
contributed to his depression and impacted his self worth
and affected his ability to deal with day to day stressors. His
disability also makes it hard for him to be with people. Mr.
Phillips feels very self conscious about his condition, is
embarrassed about how he looks, has a hard time staying on
task, and maintaining focus. He gets frustrated very easily
and has a low tolerance of others.

Due to his emotional response to his disability, he is unable
to return to work. His depression will be related to how well
he adjusts to the total loss of his right arm and possibly more
physical limitations.
No. 14AP-1018 9

{¶ 21} 7. Earlier, on December 17, 2012, claimant moved for R.C. 4123.57(B)
scheduled loss compensation for the loss of use of his right hand. Following an April 10,
2013 hearing, an SHO issued an order awarding R.C. 4123.57(B) compensation for the
loss of use of the right hand. The SHO stated reliance upon two medical reports—the
January 23, 2012 report of Dr. Thomas P. Matrka, M.D., and the February 17, 2012 report
of Edward V. A. Lim, M.D.
{¶ 22} In his January 23, 2012 report, Dr. Matrka states:
We continue to care for him for his work-related biceps
tendon injury with subsequent development of complex
regional pain syndrome (CRPS). Unfortunately, he has had a
very poor outcome in the treatment of CRPS.

As a result of his injury, Mr. Phillips has a permanent and
total loss of the use of his right hand. On examination, the
patient maintains his hand in a tightly clenched fist, with the
fingers wrapped around the flexed thumb. The digits are stiff
in this position, with an inability to mobilize them. The hand
itself is held tightly against his abdomen. There is minimal
motion in the wrist, elbow, or shoulder.

Mr. Phillips is unable to use the hand for any of his daily
activities, grooming, or basic functions. He is presently
attempting to learn to utilize his left upper extremity for
these functions.

In his February 17, 2012 report, Dr. Lim states:
Mr. Phillips is not able to do full duty work. He has no
functional use of his right upper extremity. He can do
primarily clerical work in an office type setting where he
does not need to use his right upper extremity. These
restrictions will most likely be a permanent situation for him
since it is unlikely that he will improve the functional
outcome of his right upper extremity.

{¶ 23} 8. Apparently, the April 10, 2013 order of the SHO is a final commission
order.
{¶ 24} 9. On September 10, 2013, claimant filed an application for PTD
compensation.
No. 14AP-1018 10

{¶ 25} 10. On October 21, 2013, at relator's request, psychologist, Michael T.
Farrell, Ph.D., issued a three-page narrative report based upon two prior examinations
performed in January and June of 2013, and his review of additional file information. In
his October 21, 2013 report, Dr. Farrell opines:
It is my opinion that Mr. Phillips does maintain the residual
functional capacity to engage in sustained remunerative
employment when consideration is given the Major
Depressive Disorder, Single Episode, Severe Without
Psychotic Features With Significant Anxiety allowed in this
claim. He does, however, have functional limitations directly
and proximately related to this Major Depressive Disorder,
Single Episode, Severe Without Psychotic Features With
Significant Anxiety. There are histrionic and hypochondrical
features, which causes a stronger somatic focus and
tendencies toward embellishment, although not consciously
malingering or faking. For example, there is a strong focus
on inability versus what he can do. During one of my
evaluations, he even stated to me that he has problems
standing because of his arm injury. It is my opinion that
there is a mild level impairment in social functioning.
Associated with this, there is controlled agitation, minimal
paranoia, and some social withdrawal. There is a mild level
impairment in cognitive functioning. Although he reports
significant difficulty with his concentration and short-term
memory, this has not been observed on multiple interviews
with Mr. Phillips. He is able to be attentive, conversant with
details in areas of interest, and maintain adequate
concentration to complete a rather lengthy psychological
evaluation with numerous personal questions and
psychological testing. There does appear to be some
variation in his cognitive functioning secondary to his
physical pain level and sleep. There is a minimal to mild
impairment in stress tolerance. He rather quickly becomes
frustrated, especially with [an] individual he perceives as
questioning his integrity. He can become somewhat over-
whelmed, dependent upon others, and fearful/worrisome.
There is a minimal level [of] impairment in endurance/pace.
He works at a somewhat slower pace, gives up somewhat
easily on selected tasks, and demonstrates a lack of patience.
He is able to work from a psychological perspective, given
the psychological condition recognized in the claim, given
these restrictions.
No. 14AP-1018 11

{¶ 26} 11. On January 11, 2014, at the commission's request, claimant was
examined by clinical psychologist, Norman L. Berg, Ph.D. In his nine-page narrative
report, Dr. Berg opines:
DIAGNOSIS:

Axis I. Major Depressive Disorder single
episode, severe without psychotic
features with significant anxiety.
296.23

Axis II. No diagnosis V71.09
Axis III. Deferred to medical exam

Axis IV. On-going physical and related
emotional problems; inability to
continue work. Severity: 4-severe

Axis V. GAF: 43

OPINION:

These are my responses in regard to the specific questions
posed by the Industrial Commission. In my opinion,
claimant is still at [maximum medical improvement] in
regard to his condition of "Major Depressive Disorder, single
episode, severe without psychotic features with significant
anxiety." This is based on the fact that claimant has been
involved in mental health treatment (medication and
counseling) for over 2 years, he continues in treatment, he
continues to be very anxious and depressed, and he reports
having ongoing and worsening symptoms related to his
mental state and his physical problems from his industrial
injuries. Based on AMA Guides, 2nd and 5th Editions, and
with reference to the Industrial Commission Medical
Examination Manual, I rate claimant as having 60%
permanent impairment arising from the allowed condition of
"Major Depressive Disorder, single episode, severe without
psychotic features with significant anxiety."

In regard to activities of daily living, claimant is rated as
having 50% permanent impairment in that claimant's
depression and anxiety often reduce his desire to attend to
his personal hygiene needs. Claimant mentioned that he
does make an effort to attend to these needs but also
mentioned that he often needs his wife['s] assistance. He
No. 14AP-1018 12

mentioned that this is rather embarrassing to him. Claimant
is rated as having Class 3-moderate impairment in this area.

In regard to social functioning, claimant is rated as having
65% permanent impairment (Class 4-[marked]) in that
claimant has a strong tendency to withdraw from social
interactions, although he does have contact with family
members and occasional contact with friends. He mentioned
that he does not wish to be around others if he is not familiar
with them. He also mentioned that he did go to his wife's
coffee shop during the day because he wanted to be with her
and felt uncomfortable when she was not with him. At that
time he had some/superficial contact with others.

In regard to concentration, persistence, and pace claimant is
rated as having 65% permanent impairment (Class 4-
[marked]) in that claimant's difficulty with concentration,
his slowness in cognitive functioning, and his significantly
reduced stress/frustration tolerance would substantially
interfere with his ability to cope with the routine demands of
a work setting.

In regard to claimant's ability to adapt to the work setting,
claimant is rated as having 65% permanent impairment
(Class 4-[marked]) in that claimant's difficulty with
concentration, his slowness in cognitive functioning, and his
significantly reduced stress/frustration tolerance would
substantially interfere with his ability to cope with the
routine demands of a work setting.

The Occupational Activity Assessment form has been
completed and is attached to this report.

{¶ 27} 12. On January 11, 2014, Dr. Berg completed a form captioned
"Occupational Activity Assessment[,] Mental & Behavioral Examination."
{¶ 28} The form asks the examining psychologist to select one of three pre-printed
statements that describe the clinical findings. In that regard, the form provides:
Based solely on impairment resulting from the allowed
mental and behavioral condition (s) in this claim within my
specialty, and with no consideration of the Injured Worker's
age, education, or work training:

( ) This Injured Worker has no work limitations.

( ) This Injured Worker is incapable of work.
No. 14AP-1018 13

( ) This Injured Worker is capable of work with the
limitation(s) / modification(s) noted below[.]

{¶ 29} Dr. Berg indicated by his mark that he agrees with the second pre-printed
statement: "This Injured Worker is incapable of work."
{¶ 30} In the space provided immediately below the third pre-printed statement,
Dr. Berg wrote in his own hand:
Claimant has the below-listed limitations based on the
impairments arising from the allowed condition of "major
depressive disorder, single episode, severe without psychotic
features with significant anxiety."

Claimant has moderate limitations in his ability to
understand and follow verbal directions.

He has marked limitations in his ability to concentrate and
be persistent. He has marked limitations in memory and this
is related to his difficulty with concentration.

He has marked limitations in his ability to interact with
others in a work setting.

He has marked limitations in his ability to cope with routine
work stress.

{¶ 31} 13. Earlier, on October 15, 2013, relator moved for leave to take the
depositions of claimant's spouse, Denise L. Phillips, and one of his co-workers, Chris
Fender.
{¶ 32} 14. Following a November 7, 2013 hearing, an SHO mailed an order on
November 9, 2013 denying relator's motion for leave to take the depositions. The SHO's
order explains:
By the denied motion, the Employer seeks authorization
from the Industrial Commission to depose the Injured
Worker's spouse and Mr. Chris Fender. As explained by
counsel for the Employer, these are "fact witnesses." The
Employer desires the opportunity to depose both witnesses
to develop evidence whether or not the Injured Worker is
presently working/employed and to develop evidence
regarding the Injured Worker's functional residual capacity
to engage in work activities.
No. 14AP-1018 14

There is no constitutional due process right to take
depositions of a non-physician, so called fact witness in
workers' compensation administrative proceedings in Ohio.
The Staff Hearing Officer finds that the best forum to
adjudicate differences of opinion and to establish evidence
for consideration for the hearing adjudicator is the hearing
process itself. The Staff Hearing Officer is persuaded and
finds that the respective positions of the parties in this
matter can be best sorted out through the administrative
hearing process. So called fact witnesses can be subpoenaed
for hearing, placed under oath, and have their testimony
transcribed. The Staff Hearing Officer is persuaded that the
hearing process provides the parties the best opportunity to
fully establish and set forth the relevant evidence to be
considered by the Hearing Adjudicator.

{¶ 33} 15. On November 20, 2013, relator moved for reconsideration of the SHO's
order of November 7, 2013.
{¶ 34} 16. On January 9, 2014, the three-member commission issued an
interlocutory order, stating:
It is the finding of the Industrial Commission that the
Employer has presented evidence of sufficient probative
value to warrant adjudication of the request for
reconsideration regarding the alleged presence of clear
mistakes of law of such character that remedial action would
clearly follow.

Specifically, it is alleged that the Staff Hearing Officer erred
in denying the Employer's request to depose witnesses and
by failing to apply the decision in State ex rel. Palmore v.
Indus. Comm., 10th Dist. Franklin No. 02AP-1347, 2004-
Ohio-1212.

Based on these findings, the Industrial Commission directs
that the Employer's request for reconsideration, filed
11/20/2013, is to be set for hearing to determine whether the
alleged mistakes of law as noted herein are sufficient for the
Industrial Commission to invoke its continuing jurisdiction.

(Emphasis sic.)

{¶ 35} 17. Following a January 28, 2014 hearing, the three-member commission
issued an order denying relator's November 20, 2013 motion for reconsideration. The
commission explained:
No. 14AP-1018 15

The Employer has failed to meet its burden of proving that
sufficient grounds exist to justify the exercise of continuing
jurisdiction. Therefore, the Employer's request for
reconsideration, filed 11/20/2013, is denied, and the Staff
Hearing Officer order, issued 11/09/2013, remains in full
force and effect.

{¶ 36} 18. On August 27, 2014, claimant's application for PTD compensation was
heard by an SHO. The hearing was recorded and transcribed for the record.
During the hearing, Denise Phillips and Chris Fender were called to testify
by relator's counsel as on cross examination. The hearing transcript provides that
testimony.
{¶ 37} 19. Following the August 27, 2014 hearing, the SHO issued an order
awarding PTD compensation starting August 19, 2013. The SHO states reliance upon the
reports of three doctors to support the determination that the allowed conditions of the
claim prohibit all sustained remunerative employment. The SHO found it unnecessary to
consider or analyze the non-medical disability factors. The SHO's order explains:
Permanent and total disability compensation is awarded
from 08/19/2013 for the reason that on that date Dr. Soin
stated that the Injured Worker was unable to work due to the
allowed conditions of this claim.

Based upon the reports of Drs. Amol Soin (08/19/2013),
Steven Rosen (09/04/2013), and Norman Berg
(01/11/2014), it is found that the Injured Worker is unable to
perform any sustained remunerative employment solely as a
result of the medical impairment caused by the allowed
conditions. Therefore, pursuant to State ex rel. Speelman v.
Indus. Comm. (1992), 73 Ohio App.3d 757, it is not necessary
to discuss or analyze the Injured Worker's non-medical
disability factors.

The Staff Hearing Officer finds that the above cited reports
are neither ambiguous nor internally inconsistent. The Staff
Hearing Officer finds that the 9/4/2013 report of Dr. Rosen
and the 1/11/2014 report of Dr. Berg are particularly
persuasive that the injured worker is permanent and totally
unable to return to any sustained remunerative employment
due solely to the medical impairment caused by the allowed
conditions in this claim.

(Emphasis sic.)
No. 14AP-1018 16

{¶ 38} 20. On December 11, 2014, relator, R & L Carriers Shared Services, LLC,
filed this mandamus action.
Conclusions of Law:
{¶ 39} Six issues are presented: (1) whether the August 19, 2013 report of Dr. Soin
provides some evidence to support the commission's finding that the allowed physical
conditions of the claim prohibit all sustained remunerative employment, (2) whether the
September 4, 2013 report of Dr. Rosen provides some evidence to support the
commission's finding that the allowed psychological/psychiatric condition of the claim
prohibits all sustained remunerative employment, (3) whether the January 11, 2014
report of Dr. Berg provides some evidence to support the commission's finding that the
allowed psychological/psychiatric condition of the claim prohibits all sustained
remunerative employment, (4) whether the commission abused its discretion in failing to
consider the non-medical disability factors, (5) whether the commission must readjust the
PTD start date, and (6) whether the three-member commission abused its discretion
when it refused to disturb the SHO's order of November 7, 2013 denying relator's motion
to depose.

First Issue
{¶ 40} In the seminal case of State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d
452 (1993), the court held that non-allowed medical conditions cannot be used to advance
or defeat a claim for compensation. Later, in State ex rel. Bradley v. Indus. Comm., 77
Ohio St.3d 239 (1997), citing its decision in Waddle, the court stated that the mere
presence of a non-allowed condition in a claim does not itself destroy the compensability
of the claim, but the claimant must meet his or her burden of showing that an allowed
condition independently caused the disability. Even if the non-allowed conditions are
severe, they are irrelevant as long as the allowed conditions are independently disabling.
State ex rel. WCI Steel, Inc. v. Indus. Comm., 96 Ohio St.3d 24, 2002-Ohio-3315, citing
Waddle.
{¶ 41} Equivocal medical opinions are not evidence. State ex rel. Eberhardt v.
Flxible Corp., 70 Ohio St.3d 649, 657 (1994). Equivocation occurs when a doctor
No. 14AP-1018 17

repudiates an earlier opinion, renders contradictory or uncertain opinions, or fails to
clarify an ambiguous statement. Id.
{¶ 42} Moreover, it has been repeatedly held that a physician's report can be so
internally inconsistent that it cannot be some evidence supporting the commission's
decision. State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445 (1994); State ex rel.
Taylor v. Indus. Comm., 71 Ohio St.3d 582 (1995).
{¶ 43} However, in mandamus, courts will not second guess the medical expertise
of the doctor whose report is under review. State ex rel. Young v. Indus. Comm., 79 Ohio
St.3d 484 (1997).
{¶ 44} The evaluation of the weight and credibility of the evidence before it rests
exclusively with the commission. State ex rel. Thomas v. Indus. Comm., 42 Ohio St.3d 31,
33 (1989), citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987).
{¶ 45} Analysis begins with the observation that nowhere in his type-written report
does Dr. Soin actually state what the allowed conditions of the industrial claim are.
Parenthetically, the magistrate observes that the claim number is hand-written on the
first page of the report above the body of the type-written report. There is no evidence in
the record to suggest that Dr. Soin wrote the claim number on his type-written report.
{¶ 46} As earlier noted, claimant was awarded R.C. 4123.57(B) scheduled loss
compensation for the loss of use of his right hand by the SHO's order of April 10, 2013.
The SHO's order states reliance upon the January 23, 2012 report of Dr. Matrka and the
February 17, 2012 report of Dr. Lim. Dr. Matrka found that claimant "maintains his hand
in a tightly clenched fist." Thus, when Dr. Soin states in his report "[h]is hand is
completely contracted," it can be reasonably inferred that Dr. Soin is referring to the loss
of use of claimant's right hand for which he has been compensated. This suggests that Dr.
Soin is aware of the industrial claim even though he never actually lists the claim
allowances in his report.
{¶ 47} However, problematic here is the paragraph under "History of Present
Illness," wherein Dr. Soin states that the "chief complaint is pain located in the neck, left
shoulder, left arm and left hand." The industrial claim is not allowed for any condition of
the left shoulder, left arm, or left hand. Rather, the claim is allowed for physical
conditions on the right side of the body. Clearly, claimant's chief complaint as described
No. 14AP-1018 18

by Dr. Soin relates to non-allowed conditions and the pain associated with non-allowed
conditions.
{¶ 48} The above analysis must be applied to the 9th and 10th statements set forth
in the report of Dr. Soin. Again, those two statements are:
[Nine] - Now he has [sic] having left arm pain in addition to
the right.

[Ten] - Terry is unable to work due to severe pain and
contracted arm that is non functional.

{¶ 49} To the extent that the tenth statement can be viewed as a medical opinion
that claimant is unable to perform sustained remunerative employment, the opinion is
not some evidence of a compensable inability to work because the "severe pain"
referenced in the statement appears to be related to non-allowed conditions. In any
event, Dr. Soin's statement that claimant "is unable to work" is ambiguous as to whether
or not non-allowed conditions are being included. Thus, the statement is not some
evidence of a work-related disability.
{¶ 50} The sixth, seventh, and eighth statements are also similarly flawed and fail
to provide some evidence of a work-related disability. Again, those three statements are:
[Six] - His hand is completely contracted.

[Seven] - I am not sure this is practical for him to work with
his non functioning hand.

[Eight] - There is no way that Terry can work.

{¶ 51} The above three statements are not some evidence that the loss of use of the
right hand prohibits all sustained remunerative employment. Dr. Soin expresses
uncertainty in his opinion when he states "I am not sure this is practical for him to work *
* *." The uncertainty creates an ambiguous opinion. Eberhardt.
{¶ 52} Moreover, additional ambiguity is presented in the second statement: "this
is [A]nthem not [BWC] what I am seeing him about today." The statement strongly
suggests that Dr. Soin was not examining claimant for the industrial claim on August 19,
2013. It can be noted that "[A]nthem" is a reference to private insurance and that
"[BWC]" is a reference to the Bureau of Workers' Compensation. Therefore, Dr. Soin's
No. 14AP-1018 19

August 19, 2013 report is at best ambiguous as to whether Dr. Soin was examining for the
industrial claim.
{¶ 53} Clearly, based upon the above analysis, Dr. Soin's August 19, 2013 report
must be eliminated from evidentiary consideration. The report is not some evidence upon
which the commission can rely to support its finding that the industrial injury prohibits
all sustained remunerative employment.

Second Issue
{¶ 54} The second issue is whether the September 4, 2013 report of Dr. Rosen is
some evidence to support the commission's finding that the allowed
psychological/psychiatric condition of the claim prohibits all sustained remunerative
employment.
{¶ 55} R.C. 4123.57(B) provides a schedule for the payment of compensation for
the loss of enumerated body parts. It provides for 175 weeks of compensation for loss of a
hand and 225 weeks of compensation for loss of an arm. Awards for the loss of a hand
and loss of an arm are cumulative and not consecutive. State ex rel. Cook v. Zimpher, 17
Ohio St.3d 236 (1995), (claimant cannot receive consecutive benefits for loss of a foot and
a leg under former R.C. 4123.57(C). State ex rel. Ohio Dept. of Transp. v. Stegall, 10th
Dist. No. 12AP-446, 2013-Ohio-2452 (under R.C. 4123.57(B) an arm includes the hand of
that arm). Thus, loss of an arm is compensated to a greater degree than loss of a hand.
The loss of a hand is not equatable with loss of the arm under the statute.
{¶ 56} In his September 4, 2013 report, Dr. Rosen states that claimant's
"depression will be related to how well he adjusts to the total loss of his right arm and
possibly more physical limitations." As relator correctly points out, the claim is not
allowed for loss of an arm. Rather, it is allowed for loss of a hand. On that basis, relator
argues that Dr. Rosen's disability opinion is impermissibly premised upon a non-allowed
condition, i.e., loss of an arm. The magistrate agrees with relator's argument and
therefore finds that Dr. Rosen's report must be eliminated from evidentiary consideration.
That is, Dr. Rosen's report is not some evidence that claimant's "depression" (presumably
a reference to the allowed psychological/psychiatric condition) is the cause of disability,
i.e., that claimant "is unable to return to work."
No. 14AP-1018 20

Third Issue
{¶ 57} The third issue is whether the January 11, 2014 report of Dr. Berg provides
some evidence to support the commission's finding that the allowed
psychological/psychiatric condition of the claim prohibits all sustained remunerative
employment.
{¶ 58} On the Occupational Activity Assessment, as earlier noted, the examining
psychologist is asked to select one of three pre-printed statements that describes an ability
or inability to work. By his mark, Dr. Berg chose the second statement: "This Injured
Worker is incapable of work."
{¶ 59} Only the third pre-printed statement invites the examining psychologist to
note limitations and modifications in the space provided.
{¶ 60} Because Dr. Berg proceeded to note limitations and modifications in the
space provided when his selection of the statement "[t]his Injured Worker is incapable of
work" did not require him to do so, relator argues that Dr. Berg's Occupational Activity
Assessment presents an ambiguity as to whether Dr. Berg actually intended to opine
"[t]his Injured Worker is incapable of work."
{¶ 61} As relator puts it:
[I]t is unclear wither [sic] Dr. Berg truly intended to mark
that Respondent Phillips was incapable of work or if he
meant to check the third box that respondent Phillips was
capable of work with limitations.

(Relator's brief, 19.)

{¶ 62} The magistrate disagrees with relator's argument.
{¶ 63} Nothing in the instructions on the pre-printed form actually prohibits Dr.
Berg from noting limitations that support the statement "[t]his Injured Worker is
incapable of work." This is so even though the form only invites the noting of limitations
when the examining psychologist is of the opinion that the injured worker is capable of
work with limitations and modifications.
{¶ 64} Moreover, the limitations noted by Dr. Berg in the space provided are not in
obvious conflict with the statement "[t]his Injured Worker is incapable of work." That is,
Dr. Berg noted "marked" limitations in concentration, persistence, memory, ability to
No. 14AP-1018 21

interact with others in a work setting, and ability to cope with routine work stress. To
conclude, as does relator, that the "marked" limitations do not preclude all sustained
remunerative employment would require this court to second guess Dr. Berg's medical
expertise—something this court should not do. Young; State ex rel. Certified Oil Corp. v.
Mabe, 10th Dist. No. 06AP-835, 2007-Ohio-3877 at ¶ 4.
{¶ 65} Based upon the above analysis, the magistrate concludes that the
January 11, 2014 report of Dr. Berg provides some evidence to support the commission's
finding that the allowed psychological/psychiatric condition of the claim prohibits all
sustained remunerative employment.

Fourth Issue
{¶ 66} According to relator, claimant failed to seek rehabilitation services geared
toward improving use of his non-dominant left upper extremity. Relator asserts that
claimant "has not requested medical equipment, assistive devices, rehabilitation services,
or vocational rehabilitation associated with his allowed conditions." (Relator's brief, 21-
22.) Based upon those assertions, relator argues that the commission abused its
discretion in failing to consider those assertions in rendering its decision on PTD.
Relator's argument lacks merit.
{¶ 67} Ohio Adm.Code 4121-3-34(D) sets forth the commission's guidelines for the
adjudication of PTD applications. Thereunder, Ohio Adm.Code 4121-3-34(D)(2)
provides:
(a) If, after hearing, the adjudicator finds that the medical
impairment resulting from the allowed condition(s) in the
claim(s) prohibits the injured worker's return to the former
position of employment as well as prohibits the injured
worker from performing any sustained remunerative
employment, the injured worker shall be found to be
permanently and totally disabled, without reference to the
vocational factors listed in paragraph (B)(3) of this rule.

(b) If, after hearing, the adjudicator finds that the 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.
No. 14AP-1018 22

The non-medical factors that are to be reviewed are the
injured worker's age, education, work record, and all other
factors, such as physical, psychological, and sociological, that
are contained within the record that might be important to
the determination as to whether the injured worker may
return to the job market by using past employment skills or
those skills which may be reasonably developed.

{¶ 68} It can be noted that Ohio Adm.Code 4121-3-34(D)(2) is consistent with case
law. In State ex rel. Galion Mfg. Div. Dresser Industries, Inc. v. Haygood, 60 Ohio St.3d
38 (1991), the court states:
It would serve no practical purpose for the commission to
consider nonmedical factors in extreme situations where
medical factors alone preclude sustained remunerative
employment, since nonmedical factors will not render the
claimant any more or less physically able to work.

Id. at 40.

{¶ 69} In State ex rel. Speelman v. Indus. Comm., 73 Ohio App.3d 757, 762 (10th
Dist. 1992), this court states:
If there is some evidence upon which the commission
specifically relies that a claimant is medically unable not only
to return to his former position of employment but to
perform any sustained remunerative employment, all as a
result of the allowed condition, it is unnecessary that the
commission look at any further factors, such as Stephenson
factors, and an order allowing permanent total disability
compensation should be entered. State ex rel. Galion Mfg.
Div., Dresser Industries, Inc. v. Haygood (1991), 60 Ohio
St.3d 38, 573 N.E.2d 60.

Id. at 762.

{¶ 70} Thus, in this case, the SHO's order of August 27, 2014 correctly holds that it
is not necessary to discuss or analyze the non-medical disability factors. This is so
because the January 11, 2014 report of Dr. Berg, upon which the commission relied,
provides some evidence to support the finding that the allowed psychological condition of
the claim prohibits all sustained remunerative employment.
No. 14AP-1018 23

Fifth Issue
{¶ 71} The fifth issue is whether the commission's start date for the PTD award
must be adjusted.
{¶ 72} It is fundamental that the start date of a PTD award must be supported by
some evidence upon which the commission relied to support its PTD award. State ex rel.
Dingus v. Quinn Dev. Co., 70 Ohio St.3d 580 (1994); State ex rel. Marlow v. Indus.
Comm., 10th Dist. No. 05AP-970, 2007-Ohio-1464 at ¶ 12.
{¶ 73} Here, the SHO's order of August 27, 2014 starts the PTD award on
August 19, 2013, which is the date of Dr. Soin's report. August 19, 2013 is the earliest date
of the three reports relied upon.
{¶ 74} However, given that the magistrate has determined that the August 19, 2013
report of Dr. Soin and the September 4, 2013 report of Dr. Rosen provide no evidence that
claimant is prohibited from all sustained remunerative employment, those two reports
cannot be relied upon to support a PTD start date. The only relied upon report that
provides some evidence supporting the PTD award is the January 11, 2014 report of Dr.
Berg. Therefore, the PTD start date must be adjusted to coincide with the date of Dr.
Berg's report.

Sixth Issue
{¶ 75} The sixth issue is whether the commission abused its discretion when it
refused to disturb the SHO's order of November 7, 2013 denying relator's motion to
depose claimant's spouse, Denise L. Phillips and one of his co-workers, Chris Fender.
{¶ 76} R.C. 4123.09 provides that the commission "may cause depositions of
witnesses * * * to be taken."
{¶ 77} Supplementing the statute, as of the date that relator moved to take
depositions, i.e., on October 15, 2013 and currently, Ohio Adm.Code 4121-3-09(A)
captioned "Evidence and discovery" provides:
(2) The free pre-hearing exchange of information relevant to
a claim is encouraged to facilitate thorough and adequate
preparation for commission proceedings. If a dispute arises
between the parties regarding the exchange of information,
the hearing administrator, pursuant to paragraph (B) of this
rule may conduct a pre-hearing conference to consider the
No. 14AP-1018 24

dispute. At the conclusion of the pre-hearing conference, the
hearing administrator may issue a compliance letter, which
becomes part of the claim file and which shall be adhered to
by the parties.

***

(8) Procedure for obtaining the oral deposition of, or
submitting interrogatories to, an industrial commission or
bureau physician.

(a) A request to take the oral deposition of or submit
interrogatories to an industrial commission or bureau
physician who has examined an injured or disabled worker
or reviewed the claim file and issued an opinion shall be
submitted in writing to the hearing administrator * * *.

(b) The request must set out the reasons for the request * * *.

(c) If the hearing administrator finds that the request is a
reasonable one, the hearing administrator shall issue a
compliance letter that will set forth the responsibilities of the
party that makes the request. * * *

(d) Except as may be provided pursuant to paragraph (D) of
rule 4121-3-15 of the Administrative Code, when determining
the reasonableness of the request for deposition or
interrogatories the hearing administrator shall consider
whether the alleged defect or potential problem raised by the
applicant can be adequately addressed or resolved by the
claims examiner, hearing administrator, or hearing officer
through the adjudicatory process within the commission or
the claims process within the bureau of workers'
compensation.

***

(12) The hearing administrator, hearing officer, or industrial
commission may compel the attendance or testimony of
witnesses on their own motion or at the request of any party.

{¶ 78} As relator points out, Ohio Adm.Code 4121-3-09(A)(8) provides only for the
deposition of a commission or bureau physician who has examined an injured or disabled
worker, or reviewed the claim file and issued a written opinion.
No. 14AP-1018 25

{¶ 79} Ohio Adm.Code 4121-3-09(A) does not provide for deposing other
physicians who may have examined for the employer or the claimant. Only commission
or bureau physicians may be deposed under the rule. Thus, the rule regarding
depositions is limited even as to depositions of physicians in the claim.
{¶ 80} Clearly, Ohio Adm.Code 4121-3-09(A) makes no provision for deposing
what relator calls "fact witnesses." (Emphasis sic.) (Relator's brief, 23.) Clearly, Ohio
Adm.Code 4121-3-09(A) makes no provision for deposing the witnesses that relator
sought to depose, i.e., claimant's spouse and a co-worker.
{¶ 81} Relator suggests that the depositions of claimant's spouse and a co-worker
are mandated under Ohio Adm.Code 4121-3-09(A)(2) which provides for "[t]he free pre-
hearing exchange of information relevant to a claim * * *." Relator's suggestion lacks
merit. Ohio Adm.Code 4121-3-09(A)(2) does not compel depositions or even mention
depositions. Clearly, the free pre-hearing exchange of information can go forward
without depositions.
{¶ 82} It is axiomatic that, in mandamus proceedings, the creation of the legal duty
that a relator seeks to enforce is the distinct function of the legislative branch of
government, and courts are not authorized to create the legal duty enforceable in
mandamus. State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327,
2002-Ohio-2219.
{¶ 83} Here, this court cannot create a clear legal duty to grant deposition requests
that are not provided by the statute or by the Ohio Administrative Code.
{¶ 84} Moreover, as this court held in State ex rel. LTV Steel Co. v. Indus.
Comm.,140 Ohio App.3d 680 (10th Dist. 2000), generally there is no due process right to
discovery in administrative hearing cases and particularly no constitutional right to take
depositions.
{¶ 85} For all the above reasons, the magistrate concludes that the commission did
not abuse its discretion when it refused to disturb the SHO's order of November 7, 2013
denying relator's motion to depose.
No. 14AP-1018 26

Conclusion
{¶ 86} Accordingly, for all the above reasons, it is the magistrate's decision that this
court issue a writ of mandamus ordering the commission to amend the August 27, 2014
order of its SHO so that the August 19, 2013 report of Dr. Soin and the September 4, 2013
report of Dr. Rosen are eliminated from evidentiary reliance, and the start date for the
PTD award is adjusted to coincide with the January 11, 2014 report of Dr. Berg.

/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).