State ex rel. Bonnlander v. Harmon (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Bonnlander v. Hamon, Slip Opinion No. 2017-Ohio-4003.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2017-OHIO-4003
THE STATE EX REL. BONNLANDER, APPELLANT, v. HAMON ET AL.; INDUSTRIAL
COMMISSION OF OHIO, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Bonnlander v. Hamon, Slip Opinion No.
2017-Ohio-4003.]
Workers’ compensation—Permanent total disability—There is no hourly standard
for determining one’s capability to perform sustained remunerative
employment on part-time basis—Industrial Commission decides whether a
claimant is capable of sustained remunerative employment on case-by-case
basis—Commission did not abuse its discretion in relying on expert’s report
to find that claimant was capable of up to four hours of sedentary work a
day—Court of appeals’ judgment denying writ of mandamus affirmed.
(No. 2015-1697—Submitted April 4, 2017—Decided May 30, 2017.)
APPEAL from the Court of Appeals for Franklin County, No. 14AP-855,
2015-Ohio-4038.
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 SUPREME COURT OF OHIO

Per Curiam.
{¶ 1} Appellant, Timothy Bonnlander, has appealed the judgment of the
Tenth District Court of Appeals denying his request for a writ of mandamus that
would compel appellee, Industrial Commission, to award him compensation for
permanent total disability resulting from his workplace injury. For the reasons that
follow, we affirm the judgment of the court of appeals.
{¶ 2} Bonnlander was injured in a motor-vehicle accident while in the
course and scope of his employment on October 13, 1992. His workers’
compensation claim was allowed for numerous medical conditions and depressive
disorder.
{¶ 3} Bonnlander returned to work after the accident in various positions in
the construction industry. He also worked for nine years for the postal service, in
maintenance and as a mail carrier. He last worked in December 2008.
{¶ 4} On February 28, 2014, Bonnlander applied for permanent-total-
disability benefits, submitting a report from his treating psychologist in support of
his application. John J. Brannan, M.D., and Debjani Sinha, Ph.D., examined
Bonnlander on behalf of the commission. Dr. Brannan concluded that
Bonnlander’s medical conditions would not prevent him from performing
sedentary work. Dr. Sinha evaluated Bonnlander’s psychological condition and
concluded that he was capable of working “part-time, up to 4 hours a day,” with
the following limitations: “accommodate for variable concentration; routine jobs
are more appropriate; minimal new learning on an ongoing basis; multiple breaks.”
{¶ 5} Following a hearing, a staff hearing officer relied on the reports of
Drs. Brannan and Sinha and concluded that Bonnlander “could engage [in]
sedentary employment activity which involves part-time work, up to four hours a
day and also involves routine employment and minimal new learning on an ongoing
basis. The sedentary work should also avoid overhead use of the right arm and
avoid excessive lifting, bending and twisting.”

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{¶ 6} The hearing officer also analyzed Bonnlander’s nonmedical disability
factors and concluded, “[b]ased upon [Bonnlander’s] age, education and work
experience as well as the restrictions noted by Dr. Brannan and Dr. Sinha,” that
Bonnlander was not permanently and totally disabled.
{¶ 7} Bonnlander filed a complaint in mandamus alleging that the
commission abused its discretion by entering an order that was not supported by
any evidence in the record.
{¶ 8} A magistrate concluded that Dr. Sinha’s report supported the
commission’s decision. The magistrate determined that the commission “adopted
all of the ‘restrictions’ noted” in the reports of Drs. Brannan and Sinha and that Dr.
Sinha’s opinion that Bonnlander can work “up to 4 hours a day” met the standard
for part-time work set forth in State ex rel. Sheller-Chiles v. Indus. Comm., 10th
Dist. Franklin No. 13AP-245, 2014-Ohio-313, ¶ 5.
{¶ 9} In a two-to-one decision, the court of appeals adopted the magistrate’s
decision and denied the writ. According to the dissenting judge, Dr. Sinha’s
opinion did not meet the Sheller-Chiles standard.
{¶ 10} Bonnlander filed an appeal as of right.
{¶ 11} To be entitled to extraordinary relief in mandamus, a relator must
show that he or she has a clear legal right to the relief requested and that the
commission has a clear legal duty to provide it. State ex rel. Pressley v. Indus.
Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph nine of the syllabus.
A clear legal right to a writ of mandamus exists when the relator demonstrates that
the commission abused its discretion by entering an order not supported by any
evidence in the record. State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18,
20, 508 N.E.2d 936 (1987). Thus, we must determine whether Dr. Sinha’s report
constituted some evidence supporting the commission’s order denying permanent-
total-disability compensation.

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{¶ 12} Bonnlander argues that Dr. Sinha’s report does not support the
commission’s order because given his need to take multiple breaks, the report does
not establish that Bonnlander is capable of working four hours a day. See State ex
rel. DeSalvo v. May Co., 10th Dist. Franklin No. 98AP-986 (June 29, 1999), aff’d
without opinion, 88 Ohio St.3d 231, 724 N.E.2d 1147 (2000). Bonnlander
maintains that his need for multiple breaks so limits his ability to function that he
cannot work four hours a day and must be considered permanently and totally
disabled.
{¶ 13} The commission contends that four hours of work a day is not a
threshold requirement for part-time sustained remunerative employment and that
such a bright-line rule would interfere with the commission’s role as finder of fact
and exclusive evaluator of disability. The commission also argues that although
some injured workers are so physically restricted that they are incapable of
working, Bonnlander is not. The commission maintains that eligibility for
permanent-total-disability compensation is decided on a case-by-case basis and that
the record contains evidence that Bonnlander is capable of some sustained
remunerative employment.
{¶ 14} We agree with the commission.
{¶ 15} Permanent total disability is defined as “the inability to perform
sustained remunerative employment due to the allowed conditions in the claim.”
Ohio Adm.Code 4121-3-34(B)(1). Work is “sustained” if it consists of an ongoing
pattern of activity. State ex rel. Kirby v. Indus. Comm., 97 Ohio St.3d 427, 2002-
Ohio-6668, 780 N.E.2d 275, ¶ 10, citing State ex rel. Schultz v. Indus. Comm., 96
Ohio St.3d 27, 2002-Ohio-3316, 770 N.E.2d 576, ¶ 63. To be considered sustained,
work need not be regular or daily but may be intermittent and occasional, State ex
rel. McDaniel v. Indus. Comm., 118 Ohio St.3d 319, 2008-Ohio-2227, 889 N.E.2d
93, and it may be part-time, State ex rel. Toth v. Indus. Comm., 80 Ohio St.3d 360,
362, 686 N.E.2d 514 (1997). Thus, the commission’s analysis in a permanent-total-

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disability case must focus on whether the claimant is capable of sustained
remunerative employment. State ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d
39, 2004-Ohio-6086, 817 N.E.2d 880, ¶ 16.
{¶ 16} In DeSalvo, 10th Dist. Franklin No. 98AP-986, the court of appeals
determined that the commission had not abused its discretion when it found that a
claimant was capable of sustained remunerative employment based on her limited
abilities to sit, stand, and walk for up to 4.5 hours a day. Since DeSalvo, the court
of appeals has reiterated that four or more hours a day is the standard for
determining whether part-time work constitutes sustained remunerative
employment, but the court also continues to acknowledge the commission’s
discretion in each case. Sheller-Chiles, 10th Dist. Franklin No. 13AP-245, 2014-
Ohio-313, at ¶ 5; State ex rel. DaimlerChrysler Corp. v. Indus. Comm., 10th Dist.
Franklin No. 06AP-387, 2007-Ohio-1498, ¶ 32; State ex rel. Cale v. Indus. Comm.,
10th Dist. Franklin No. 01AP-1143, 2002-Ohio-2924, ¶ 27; State ex rel. Elastomers
v. Torok, 10th Dist. Franklin No. 02AP-116, 2002-Ohio-4770, ¶ 21; State ex rel.
Moyer v. Sharonville Fire Dept., 10th Dist. Franklin No. 04AP-92, 2005-Ohio-587,
¶ 29.
{¶ 17} There is no statutory or administrative authority for the court of
appeals’ interpretation that four or more hours of work a day is the standard for
sustained remunerative employment. Ohio Adm.Code 4121-3-34(B)(2) classifies
work by physical demands, i.e., sedentary, light, medium, heavy, and very heavy,
that refer to one’s capability to exert various degrees of force “occasionally,”
“frequently,” or “constantly.” Evaluation of the weight and credibility of the
evidence is left to the discretion of the commission within the context of each case.
Burley, 31 Ohio St.3d at 20-21, 508 N.E.2d 936.
{¶ 18} In addition, this court has specifically rejected applying a numerical
analysis in permanent-total-disability cases. State ex rel. McDaniel v. Indus.
Comm., 118 Ohio St.3d 319, 2008-Ohio-2227, 889 N.E.2d 93, ¶ 14-17, citing

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Lawson, 104 Ohio St.3d 39, 2004-Ohio-6086, 817 N.E.2d 880. The mere number
of activities performed by a claimant receiving permanent-total-disability
compensation, without context providing a time frame and the character of the
activities, is meaningless for purposes of determining whether the claimant has the
capability of performing sustained remunerative employment. Id. at ¶ 15.
{¶ 19} Furthermore, we generally discourage bright-line rules in workers’
compensation matters.

[W]orkers’ compensation cases are, to a large extent, very fact
specific. As such, no one test or analysis can be said to apply to
each and every factual possibility. Nor can only one factor be
considered controlling. Rather, a flexible and analytically sound
approach to these cases is preferable. Otherwise, the application of
hard and fast rules can lead to unsound and unfair results.

Fisher v. Mayfield, 49 Ohio St.3d 275, 280, 551 N.E.2d 1271 (1990).
{¶ 20} Therefore, we hold that there is no hourly standard for determining
one’s capability to perform sustained remunerative employment on a part-time
basis. The commission decides whether a claimant is capable of sustained
remunerative employment on a case-by-case basis. Here, Dr. Sinha opined that
Bonnlander’s psychological condition limited him to four hours of work a day with
multiple breaks. It was within the commission’s discretion to rely on Dr. Sinha’s
report as evidence to support the conclusion that Bonnlander was capable of up to
four hours of sedentary work a day.
{¶ 21} The court of appeals properly denied Bonnlander’s request for a writ
of mandamus. Consequently, we affirm the judgment of the court of appeals.
Judgment affirmed.

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O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
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Lisa M. Clark, for appellant.
Michael DeWine, Attorney General, and Eric J. Tarbox, Assistant Attorney
General, for appellee.
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