State ex rel. Pacheco v. Indus. Comm.

[Cite as State ex rel. Pacheco v. Indus. Comm., 2017-Ohio-8971.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

The State ex rel. Alfredo Pacheco, :

Relator, :

v. : No. 15AP-1033

Industrial Commission of Ohio et al., : (REGULAR CALENDAR)

Respondents. :

D E C I S I O N

Rendered on December 12, 2017

On brief: Shapiro, Marnecheck & Palnik, and Matthew
Palnik, for relator.

On brief: Michael DeWine, Attorney General, and Eric J.
Tarbox, for respondent Industrial Commission of Ohio.

On brief: Frantz Ward LLP, Maris J. McNamara, Daniel
A. Ward, and Michael C. Nunnari, Jr., for respondent Alcoa.

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BRUNNER, J.
{¶ 1} In this original action, relator, Alfredo Pacheco, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("the commission"), to
vacate the July 15, 2015 order of its staff hearing officer ("SHO") that denied his request
for a new period of temporary total disability ("TTD") compensation beginning April 22,
2013, and to enter an order granting the compensation. At issue is whether Pacheco was
entitled to TTD for a period he asserts he was medically unable to work the modified,
light-duty job provided him by respondent, Aluminum Co. of America/Cleveland Works
("Alcoa") after he was injured on the job.
No. 15AP-1033 2

{¶ 2} Pacheco asserts that the commission abused its discretion in denying his
request for a new period of TTD "based upon a finding that he did not show new and
changed circumstances" and he argued that this was "contrary to fact and law." (Nov. 10,
2015 Compl. at ¶ 22.) He further asserts the commission abused its discretion when it
denied his TTD application and refused his appeal of the July 15, 2015 SHO order because
the evidence in the record established that he was medically unable to work the light-duty
job provided by Alcoa. Pacheco argues that the modified, light-duty job was not provided
in good faith, and that, legally, he "is not required to show new and changed
circumstances to warrant a new period of temporary total disability compensation."
(Compl. at ¶ 25.) Pacheco argues that his entitlement to the new period of TTD
compensation "has conclusively been established factually and legally," and the
commission's denial of his application "was erroneous as a matter of fact and law." Id. at
¶ 26.
{¶ 3} We referred this matter to a magistrate of this Court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law. The magistrate
concluded the commission did not abuse its discretion in denying Pacheco a new period of
TTD compensation and recommended that this Court deny Pacheco's request for a writ of
mandamus.
{¶ 4} Pacheco timely filed objections to the findings of facts and conclusions of
law set forth in the magistrate's decision. The commission and Alcoa timely filed separate
memoranda opposing Pacheco's objections, asserting that the objections lacked merit,
and that the magistrate had decided the matter correctly.
{¶ 5} Having examined the magistrate's decision, conducted an independent
review of the record pursuant to Civ.R. 53, and undertaken due consideration of the
objections, we overrule Pacheco's first two objections and adopt in part the magistrate's
decision as our own. We further sustain Pacheco's third objection and grant mandamus
ordering the commission to vacate its September 16, 2013 order denying reconsideration
of its order of August 19, 2013 adopting the SHO's July 15, 2015 order. As a matter of law,
we find that there existed no evidence in the record that the light-duty job provided to
No. 15AP-1033 3

Pacheco was a legitimate good-faith job under Ohio Adm.Code 4121-3-32(A)(6) and that
the commission abused its discretion in denying Pacheco a new period of TTD.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 6} We note at the outset that the underlying matter was previously before this
Court in an original mandamus action that was assigned case No. 14AP-521. In that
action, Pacheco challenged an SHO order issued July 30, 2013 that denied his request for
a new period of TTD compensation beginning April 22, 2013. On November 26, 2014, the
parties filed a Civ.R. 41(A) stipulation of dismissal. On December 2, 2014, this Court
issued a journal entry of dismissal, which accepted the parties' stipulation of dismissal.
{¶ 7} On December 24, 2014, an SHO issued an order (1) recognizing the
stipulation of dismissal and the parties' agreement, (2) vacating the SHO order dated July
30, 2013 and mailed August 30, 2013, and (3) ordering a new hearing before an SHO to
determine whether Pacheco was entitled to the TTD compensation "for the period of April
22, 2013 through June 30, 2013, and to continue, if supported by medical evidence,
pursuant to R.C. 4123.56, as requested in his Motion, dated April 30, 2013." (Mar. 4,
2016 Stipulation of Evidence at 244.) The SHO's order of December 24, 2014 included
this language:

The Staff Hearing Officer is to consider all relevant medical
evidence from the stipulated evidence in the case before the
10th District Court of Appeals, 14AP000521, and shall issue
an order which either grants or denies the requested
compensation, accurately cites the evidence which is the basis
for the decision and provides an explanation for the decision
in accordance with State ex rel. Mitchell v. Robbins & Meyers,
Inc., 6 Ohio St.3d 481 (1983) and State ex rel. Noll v. Indus.
Comm., 57 Ohio St.3d 203 (1991). The Staff Hearing Officer's
order will be subject to the usual rights of administrative
appeal as provided in R.C. 4123.511.

Id.
{¶ 8} Pacheco's case was reheard on July 15, 2015, but by a different SHO.
{¶ 9} It is undisputed that on May 22, 2012, Pacheco suffered an industrial
accident in the course of and arising out of his employment with Alcoa, a self-insured
employer under Ohio's workers' compensation laws. Pacheco having suffered an injury
for which insurance coverage existed, that being a "crushing injury right foot; contusion
No. 15AP-1033 4

right foot; complex regional pain syndrome right ankle/foot," Alcoa certified Pacheco's
claim and allowed a period of TTD compensation from May 22, 2012 to March 30, 2013.
(Emphasis omitted.) (Stipulation of Evidence at 327; Compl. at ¶ 5.)
{¶ 10} It also is undisputed that Pacheco's treating physician, John Wilber, M.D.,
released him to return to work with restrictions on April 1, 2013. Pacheco was also
examined by Dennis A. Glazer, M.D., whose restrictions were similar to Dr. Wilber's but
less specific as to what Pacheco could do when he returned to work.
{¶ 11} The record indicates Pacheco returned to work at Alcoa beginning April 1,
2013, in a modified light-duty position within the restrictions set by both Dr. Wilber and
Dr. Glazer. Nothing in the record documents that Pacheco notified Alcoa upon or after his
return to work through Friday, April 19, 2013, that his physical condition affected his
ability to perform the light-duty tasks assigned him by Alcoa.
{¶ 12} On Monday, April 22, 2013, Pacheco undertook treatment with another
physician, Todd Hochman, M.D., who found Pacheco to be temporarily and totally
disabled as of that date. The record indicates that Pacheco did not return to work at Alcoa
after the previous Friday, April 19, 2013.
{¶ 13} The SHO who conducted the July 15, 2015 hearing issued an order denying
Pacheco's request for the new period of TTD compensation sought beginning April 22,
2013.1 The SHO found that Pacheco's claim had been previously allowed for "crushing
injury right foot; contusion right foot; complex regional pain syndrome right ankle/foot,"
but that Pacheco's claim for anxiety disorder had been disallowed. (Emphasis omitted.)
(Stipulation of Evidence at 327.) The SHO summarized Pacheco's case procedural
history, stating:

Procedurally this issued [sic] comes before the Commission as
a result of a mandamus action which was dismissed. The
parties by agreement vacated the Staff Hearing Officer order
issued 07/30/2013 denying the payment of temporary total
disability compensation commencing from 04/22/2013 and
agreed that the issue should be sent back to the Commission
for a new hearing before Staff Hearing Officer once again on

1 Although the SHO order that is the subject of this mandamus action was mailed on August 6, 2015,

Pacheco's Complaint identifies it using the date of the SHO hearing, July 15, 2015. The magistrate's decision
to which Pacheco has filed objections continued to identify the order using the "July 15, 2015" date. For
continuity purposes, this Court also will identify the SHO order using the "July 15, 2015" date, despite the
order not having been effective until August 6, 2015.
No. 15AP-1033 5

the [Pacheco's] appeal filed 06/05/2013 on the issue of
temporary total disability compensation commencing from
04/22/2013.

Id. at 329. The SHO's July 15, 2015 order denied Pacheco's request for the payment of
TTD compensation "commencing 04/22/2013 per the MEDCO-14 Physician's Reports of
Work Ability and C-84 Requests for Temporary Total Compensation of Todd Hochman,
M.D" be denied. Id. In doing so, the SHO found, based on a preponderance of the
evidence, a "lack of persuasive medical documentation to support that [Pacheco] could no
longer perform his modified job duties as a result of the allowed conditions in the claim."
Id. at 330.
{¶ 14} On August 19, 2015, Pacheco filed a request for reconsideration of the
SHO's July 15, 2015 order. On September 16, 2015, the three-member commission
mailed an order denying Pacheco's request. Then Pacheco filed this mandamus action on
November 10, 2015.
{¶ 15} The magistrate determined that this case presents two issues:

(1) whether Alcoa was required to give [Pacheco] a written job
offer pursuant to Ohio Adm.Code 4121-3-32(A)(6), and
(2) whether the finding by the SHO (July 15, 2015 order) that
Dr. Hochman's opinion is unpersuasive that relator was
unable to return to any employment as of April 22, 2013 is
supported by some evidence on which the SHO relied.

(App'x at ¶ 92.) The magistrate determined that Alcoa was not required to give Pacheco a
written job offer pursuant to Ohio Adm.Code 4121-3-32(A)(6). The magistrate also
determined that the SHO's finding that Dr. Hochman's opinion is unpersuasive is
supported by some evidence "on which the SHO relied." (App'x at ¶ 91.) Based on the
evidence in the record and the arguments of the parties, the magistrate concluded that the
commission's decision to deny Pacheco's request for a new period of TTD compensation
commencing April 22, 2013 was not an abuse of discretion. Accordingly, the magistrate
recommended that Pacheco's application for a writ of mandamus be denied.
{¶ 16} Pacheco timely filed objections to the magistrate's decision.
II. OBJECTIONS TO MAGISTRATE'S DECISION
{¶ 17} Pacheco presents three objections to the magistrate's decision:
No. 15AP-1033 6

[1.] Relator objects to the Magistrate's Statement of Facts to
the extent that it looks at Dr. Hochman's opinion only to the
exclusion of Dr. Wilbur's and the inter-relationship of the two
treating physicians.

[2.] The Magistrate erred by finding that the Industrial
Commission did not abuse its discretion when it determined
that Relator, despite having never been found MMI, had to
show a functional change, i.e., new and changed
circumstances, to merit a new period of temporary total
disability after a failed attempt to return to work in a light-
duty capacity.

[3.] The Magistrate erred by failing to address whether Alcoa's
light-duty "job" assignment of simply sitting in the cafeteria
on display for his coworkers to see was a good faith light-duty
job, especially in light of its denial of TTD.

On objection, Pacheco restates the arguments he presented in his merit brief that the
magistrate previously considered and rejected in reaching his decision.
III. LAW AND DISCUSSION
A. Standard of Review
{¶ 18} To be entitled to relief in mandamus, Pacheco must establish that he has a
clear legal right to relief, that the commission has a clear legal duty to provide such relief,
and that he has no plain and adequate remedy in the ordinary course of law. State ex rel.
Berger v. McMonagle, 6 Ohio St.3d 28 (1983). To do this, Pacheco must demonstrate
that the commission abused its discretion and, "in this context, abuse of discretion has
been repeatedly defined as a showing that the commission's decision was rendered
without some evidence to support it." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio
St.3d 18, 20 (1987). To be successful in this mandamus action, Pacheco must show that
the commission's decision is not supported by some evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). Conversely, 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). Credibility and the weight to be given evidence are clearly
within the discretion of the commission as the factfinder. State ex rel. Teece v. Indus.
Comm., 68 Ohio St.2d 165 (1981). Insofar as the magistrate has worded the proposed
holding that the "some evidence" in the record must be the evidence on which the SHO
No. 15AP-1033 7

actually relied in reaching his or her decision, we decline to adopt that as a statement of
the law. Rather, according to Elliott, while the commission must state a reason for its
decision, there must exist in the record "some evidence" that supports the decision of the
commission to avoid a writ of mandamus. Elliott.
B. First Objection
{¶ 19} In reviewing Pacheco's objections to the magistrate's decision, we note that
he specifically objects to paragraphs 16 through 18, and paragraphs 22 through 26, of the
magistrate's statement of facts, arguing they "omit[] necessary information regarding
Mr. Pacheco's medical care." (Sept. 20, 2016 Objs. To Mag.'s Decision at 5.) Pacheco
essentially argues that when the law is applied to what he alleges to be an incomplete
rendering of the evidence, it is misapplied for the purposes of determining the law of the
case. Based on this, Pacheco urges we find, "an abuse of discretion" by "the Magistrate
and Industrial Commission" because they "solely look[ed] at the opinion of one of Mr.
Pacheco's treating physicians and only a portion of the other." Id. at 6.
{¶ 20} The magistrate summarized in his decision the respective roles of the
commission and this Court in mandamus:

The commission alone is responsible for the evaluation of the
weight and credibility of the evidence before it. State ex rel.
Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987). In
mandamus, the role of this court is limited to a determination
as to whether there is some evidence to support the
commission's decision. Id.

Moreover, the commission's order must briefly explain the
commission's reasoning in granting or denying workers'
compensation benefits, and it must specifically state the
evidence relied upon. Noll.

Here, it is clear that [Pacheco] is inviting this court to step
outside its role in a mandamus review. [Pacheco] invites this
court to reweigh the evidence that was before the commission
when it rendered its decision (SHO's order of July 15, 2015).
This court must decline the invitation.

(App'x at ¶ 100-102.)
{¶ 21} The omission of certain factual matters in evidence that the objector wishes
to be considered is within the purview of the factfinder, that is, the commission. The
No. 15AP-1033 8

commission is free to weigh evidence and determine what is credible and important.
Burley. On mandamus, our role is to determine whether the record contains some
evidence that would support the commission's decision. If we find that there is some such
evidence, we are not empowered to find an abuse of discretion. Elliott.
{¶ 22} The magistrate identified and determined that there was some evidence in
the record to support the commission's decision denying Pacheco's application for a new
period of TTD. The magistrate detailed in his recitation of facts from the record the
diagnosis and treatment of Pacheco's injury by the physicians who examined him, Alcoa's
accommodations of the medical restrictions under which Pacheco returned to work, and
the commission's consideration of the pertinent facts and the application of the relevant
law to Pacheco's application. In doing so, the magistrate discussed the opinions rendered
by three physicians who examined Pacheco soon before and after he returned to Alcoa for
light-duty work on April 1, 2013.
Dr. Wilber's Report:
{¶ 23} The Medco-14 that Dr. John Wilber completed ten days after having
examined Pacheco on March 5, 2013 indicated that Pacheco was not released to his
former position of employment but could return to "available and appropriate work with
restrictions" from April 1 to May 1, 2013. (Stipulation of Evidence at 97.) The magistrate
stated:

On the Medco-14, Dr. Wilber indicated by his marks that
[Pacheco] can work 8 hours per day and 40 hours per week;
use his left foot to perform repetitive actions to operate foot
controls or motor vehicles; no operation of heavy machinery
or driving while taking prescribed medications; occasionally
lift/carry 10 pounds; occasionally bend, squat, kneel,
twist/turn, and reach above shoulder; occasionally drive an
automatic vehicle; frequently type on a keyboard; sit for 8
hours with a break; walk for 2 hours with a break; and stand
for 2 hours with a break.

(App'x at ¶ 58.)
Dr. Glazer's Report:
{¶ 24} The magistrate also discussed restrictions imposed by Dr. Dennis A. Glazer,
who at Alcoa's request had also examined Pacheco on March 14, 2013 (after Dr. Wilber's
examination but before Dr. Wilber completed the Medco-14 form). Dr. Glazer had
No. 15AP-1033 9

similarly restricted Pacheco to sedentary work with no significant walking or carrying, but
did not address what Pacheco could do with his left, uninjured foot:

It is my opinion within reasonable medical probability that
Mr. Pacheco is unable to perform the duties as outlined in the
job description. If he would return to work, he would have to
have a sedentary job with no walking and no carrying since he
would have to walk with crutches. If the trip from the parking
lot to his point of work was over several 100 yards, he would
have to be brought in with a motorized car or wheelchair. He
would be unable to drive since he could not use his right leg
for accelerator or breaking.

(Stipulation of Evidence at 96.)
{¶ 25} In reviewing the record, the magistrate noted that Dr. Wilber again
examined Pacheco on April 2, 2013, one day after he had returned to work for light duty.
The magistrate found that Pacheco had informed Dr. Wilber that Alcoa had Pacheco
"sitting in a cafeteria doing nothing with his foot down," a situation that Pacheco
indicated was very painful. (Stipulation of Evidence at 103.) The record indicates that Dr.
Wilber did have concern that Pacheco was "just sitting with the foot down" and he
expressed his hope that Alcoa "will at least let him get it elevated and move around some."
Id. But there is nothing in the record that indicates Dr. Wilber modified his earlier
restrictions on Pacheco's return to work.
Dr. Hochman's Report:
{¶ 26} The magistrate's findings of fact discuss the Medco-14 that a third doctor,
Dr. Todd Hochman, completed on April 22, 2013, after Pacheco had been back to work for
three weeks. Dr. Hochman stated that Pacheco "is temporarily not released to any work,
including the former position of employment." (Stipulation of Evidence at 108.) The
magistrate outlined the following limitations Dr. Hochman placed on Pacheco's return to
work:
On the Medco-14, Dr. Hochman indicated relator's
capabilities and restrictions. Dr. Hochman indicated relator
can perform simple grasping with both hands; perform
repetitive wrist motion with both wrists; use his left foot to
perform repetitive actions to operate foot controls or motor
vehicles; no operation of heavy machinery or driving while
taking prescribed medications; no lifting/carrying, bending,
squatting, kneeling, twisting/turning; occasionally reach
No. 15AP-1033 10

above shoulder; frequently type on a keyboard; sit six-to-eight
hours per day with a break; walk for one hour with a break;
and stand for one hour with a break.
(App'x at ¶ 66.)
{¶ 27} In findings 19 through 21 of his decision, the magistrate discussed a report
and two affidavits from Alcoa personnel documenting how the light-duty position Alcoa
offered Pacheco satisfied the restrictions set by both Drs. Wilber and Hochman. The
affidavits included a statement that Pacheco never reported to anyone in the Alcoa
medical department that he had any physical difficulty with his light-duty position during
the time he held it.
{¶ 28} We find that Pacheco's first objection goes to the relative weight of opposing
evidence, a task that is within the discretion of the commission as the factfinder. Teece.
While Pacheco asserts that the magistrate impermissibly weighed the evidence by not
discussing some of it in reaching his legal conclusions, we find that the magistrate simply
performed for the Court its duty to consider whether there is some evidence in the record
to support the commission's decision. The magistrate concluded that the record included
some evidence on which the commission could rely in denying Pacheco's new period of
TTD beginning April 22, 2013. Upon our independent review, we agree with the
magistrate.
{¶ 29} We therefore overrule Pacheco's first objection to the magistrate's decision.
C. Second Objection
{¶ 30} In his second objection, Pacheco argues that the magistrate erred as a
matter of law by finding Pacheco did not show "new and changed circumstances" for a
new period of TTD compensation to commence. (Compl. at ¶ 22.) This analysis requires
a comparison of the Medco-14's completed by each of Pacheco's three doctors—Drs.
Wilber, Glazer, and Hochman. Such a comparison ultimately requires not a legal
conclusion, but a factual one, to determine whether the commission abused its discretion
in denying a new period of TTD. We also note that neither the SHO's order nor the
magistrate's decision requires that Pacheco show a functional change or demonstration of
"new and changed circumstances." Id.
No. 15AP-1033 11

{¶ 31} Instead, the magistrate determined that the SHO, in weighing the medical
evidence before her, found unpersuasive Dr. Hochman's opinion that Pacheco was unable
to return to any work as of April 22, 2013. In doing so, the magistrate stated:

The SHO's order of July 15, 2015 explains in some detail the
reasoning that supports the SHO's conclusion. The SHO
explains that the restrictions provided by Dr. Hochman are
"indistinguishable" from the restrictions provided by Dr.
Wilber. Significantly, [Pacheco] does not dispute the SHO's
observation in comparing the restrictions of Drs. Wilber and
Hochman. The SHO pointed out the absence of "any
documented worsening of [Pacheco's] objective clinical
findings or functional ability."

That is to say, [Pacheco] worked for approximately three
weeks at his light-duty job at Alcoa under Dr. Wilber's
restrictions and then failed to work further under essentially
the same restrictions from Dr. Hochman. The difference
being that Dr. Wilber released [Pacheco] to work under the
restrictions, but Dr. Hochman opined that relator was unable
to do any work.

Clearly, the SHO's order of July 15, 2015 provides a valid basis
supported by some evidence for denial of the request for TTD
compensation beginning April 22, 2013.

(App'x at ¶ 104-106.)
{¶ 32} Finding that the magistrate appropriately applied the relevant standard, we
overrule Pacheco's second objection.
D. Third Objection
{¶ 33} For his third objection, Pacheco argues that the magistrate erred in finding
that Alcoa was not required to reduce to writing its offer of the light-duty job position.
Pacheco argues that the magistrate failed to address "the larger issue" of whether the
light-duty job was a legitimate good-faith job under Ohio Adm.Code 4121-3-32(A)(6), and
whether it was "a warning to other Alcoa workers about what happens when you file a
workers' compensation claim." (Objs. to Mag.'s Decision at 11.)
{¶ 34} Pacheco acknowledges in his objection that an injured worker is entitled to
TTD compensation when he or she is incapable of returning to his or her former position
of employment, and/or when the employer is unable to accommodate medically imposed
restrictions. Pacheco contends that Alcoa has a practice of accommodating injured
No. 15AP-1033 12

workers' work restrictions by giving them light-duty jobs that require them to be "on
display" in the company cafeteria. He asks this Court to address whether or not Alcoa's
"accommodations" qualify as a legitimate good-faith job under the law "to prevent this
practice from continuing to occur." (Objs. to Mag.'s Decision at 12.)
{¶ 35} The magistrate found evidence in the record indicating that Pacheco was
placed in the cafeteria to accommodate the distance he had to walk from the parking lot to
the building and to facilities within the building, and that he was assigned web-based
training and filing duties from April 1 through April 19, 2013. The magistrate found that
Pacheco's "testimony as to the duties (or lack thereof) of the job Alcoa provided beginning
April 1, 2013 goes to the weight of the medical evidence that was before the SHO during
the July 15, 2015 hearing." (App'x at ¶ 111.) The magistrate concluded that "the SHO was
not required to find that Alcoa's job offer was made in bad faith or that [Pacheco] was
unable to continue the job after April 22, 2013." Id. at ¶ 112.
{¶ 36} We disagree with the magistrate's conclusion. Based on evidence in the
record and mentioned in the magistrate's decision, that being the Medco-14 of Dr. Glazer
and the subsequent April 2, 2013 medical notes of Dr. Wilber, placing Pacheco in the
lunchroom to do web-based work and filing, rather than at a desk was not suitable
employment offered in good faith pursuant to Ohio Adm.Code 4121-3-32(A)(6). Dr.
Glazer stated limitations such that, "[i]f the trip from the parking lot to his point of work
was over several 100 yards, he would have to be brought in with a motorized car or
wheelchair. He would be unable to drive since he could not use his right leg for
accelerator or breaking." (Stipulation of Evidence at 96.)
{¶ 37} A "job offer" of light duty to an injured worker pursuant to Ohio Adm.Code
4121-3-32(A)(6) such as a desk job in a lunchroom is neither objectively suitable nor
objectively in good faith without evidence that the work can actually be performed in such
an environment. To the contrary, the evidence from Pacheco's second visit to Dr. Wilber
indicated he was having trouble performing the work in the lunchroom. While Dr. Wilber
did not change his restrictions, "[t]he treating physician does not decide whether the
injured worker will accept an offer of employment. The injured worker makes that
decision and the employer needs to communicate the job offer to the injured worker, not
rely on the treating physician or the physician's staff to interpret the job offer for the
No. 15AP-1033 13

worker." State ex rel. Scott v. Indus. Comm., 10th Dist. No. 07AP-1041, 2008-Ohio-
4104, ¶ 12. Whether or not Pacheco communicated this to the employer is not the
linchpin for Alcoa. The test is an objective one.

The word "suitable" in Ohio Adm.Code 4121-3-32(B) does not
mean "suitable to the employer." To be suitable, the offer
must be suitable from an objective point of view. * * * The
courts are then in a position to determine if the employer's job
offer is an offer of truly suitable employment.

(Emphasis added.) Scott at ¶ 16. Failure to comply with Ohio Adm.Code 4121-3-32(A)(6),
is a failure to offer suitable employment for purposes of Ohio Adm.Code 4121-3-32(B). Id.
We objectively determine that web-based training and especially filing duties cannot
suitably be performed in a lunchroom absent other evidence to prove that such an
environment can accommodate the assigned work tasks. There is no evidence in the
record that supports an objective conclusion that Pacheco was provided suitable
employment pursuant to Ohio Adm.Code 4121-3-32.
{¶ 38} We find contra the conclusion of the magistrate that the credibility of
testimony or the weight to be given to the evidence affects whether an employer has made
in good faith an offer of suitable employment in this context of TTD and pursuant to Ohio
Adm.Code 4121-3-32. The record of this matter fails to provide some evidence to support
the commission's findings that Pacheco's light duties were provided in good faith
pursuant to Ohio Adm.Code 4121-3-32(A)(6). We hold that the commission has abused
its discretion in denying reconsideration of the SHO's July 15, 2015 order and thus
mandamus is appropriate.
{¶ 39} We sustain Pacheco's third objection to the magistrate's decision.
IV. CONCLUSION
{¶ 40} On review of the magistrate's decision, on an independent review of the
record, and giving due consideration to Pacheco's objections and Alcoa's responses
thereto, we find the magistrate has properly stated the pertinent facts but has not en toto
applied the appropriate law. We therefore overrule Pacheco's first and second objections
to the magistrate's decision and we sustain his third objection, adopting as our own the
magistrate's findings of fact in their entirety and the conclusions of law as to Pacheco's
first and second objections, except as stated in paragraph 18 herein. We sustain Pacheco's
No. 15AP-1033 14

third objection and find that the commission abused its discretion in finding some
evidence to support a finding that the light-duty position offered to Pacheco was suitable
and in good faith pursuant to Ohio Adm.Code 4121-3-32. Accordingly, we grant the
requested writ of mandamus and order the commission to vacate its order denying
reconsideration of the SHO order for the hearing held July 15, 2015 and mailed August 6,
2015. Because the commission maintains continuing jurisdiction2 over the claim, it is
within the commission's discretion whether to grant TTD or to order a new hearing.
Objections sustained in part and overruled in part;
writ of mandamus granted.

TYACK, P.J., concurs.
KLATT, J., dissents.

KLATT, J., dissenting.
{¶ 41} Because I would adopt the magistrate's decision in its entirety, I respectfully
dissent.
{¶ 42} The relator has the burden to establish that the commission's decision is not
supported by some evidence in the record. Where there is evidence in the record
supporting the commission's decision, mandamus relief is not warranted. Moreover, the
credibility and weight to be given evidence are clearly within the discretion of the
commission as the factfinder. Although the majority applies this standard to Pacheco's
first and second objections, it ignores it by sustaining his third objection.
{¶ 43} The record contains medical evidence that Pacheco was released to light-
duty work. The commission relied on this medical evidence and expressly rejected
Pacheco's medical evidence that he was unable to perform any work. In addition, it is
undisputed that Pacheco performed his light-duty assignment for approximately three
weeks without any indication that the work was inconsistent with his medical restrictions
or that he was physically unable to perform the work. There was also evidence in the
record that Alcoa placed Pacheco in the cafeteria to accommodate the distance he had to

2 "Presumably, should this court issue a writ of mandamus ordering the commission to vacate its
ineligibility finding contained in its SHO's order of August 3, 2007, relator would then have grounds for
the commission's exercise of continuing jurisdiction over its SHO's order of August 13, 2009 that denied
TTD compensation on eligibility grounds." State ex rel. Jacobs v. Indus. Comm., 10th Dist. No. 11AP-262,
2012-Ohio-3763, ¶ 12.
No. 15AP-1033 15

walk from the parking lot to the building, and to facilities within the building, and
assigned him web-based training and filing duties. This evidence supports the
commission's conclusion that Alcoa complied with the medical restrictions and offered
Pacheco suitable employment offered in good faith. The majority simply substitutes its
own factfinding determination for that of the commission, rather than applying the some
evidence standard. For this reason, I respectfully dissent.
No. 15AP-1033 16

APPENDIX
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

The State ex rel. Alfredo Pacheco, :

Relator, :

v. : No. 15AP-1033

Industrial Commission of Ohio et al., : (REGULAR CALENDAR)

Respondents. :

MAGISTRATE'S DECISION

Rendered on August 30, 2016

Shapiro, Marnecheck & Palnik, and Matthew Palnik, for
relator.

Michael DeWine, Attorney General, and Eric J. Tarbox, for
respondent Industrial Commission of Ohio.

Frantz Ward LLP, Maris J. McNamara, Daniel A. Ward,
and Michael C. Nunnari, Jr., for respondent Alcoa.

IN MANDAMUS

{¶ 44} In this original action, relator, Alfredo Pacheco, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate the July 15, 2015 order of its staff hearing officer ("SHO") that denies relator's
request for temporary total disability ("TTD") compensation beginning April 22, 2013, and
to enter an order granting the compensation.
Findings of Fact:
{¶ 45} 1. On May 22, 2012, relator injured his right foot when it was caught
between two fork lifts while employed with respondent, Alcoa, a self-insured employer
No. 15AP-1033 17

under Ohio's workers' compensation laws. On that date, relator was transported by EMS
to the emergency department of The MetroHealth System where his right foot was
assessed as a "[c]rush [i]njury, possible occult fracture."
{¶ 46} 2. On May 29, 2012, relator was examined by John H. Wilber, M.D., at the
Department of Orthopedics at MetroHealth. In his office note, Dr. Wilber noted that
relator was being placed in an aircast boot. Thereafter, Dr. Wilber completed a C-84
based on his May 29, 2012 examination. In the C-84, Dr. Wilber listed his diagnosis as
"crushing injury of foot" and "contusion of foot." He indicated that relator was unable to
return to any employment as of May 29, 2012. Dr. Wilber estimated a return to work date
of August 23, 2012.
{¶ 47} 3. On October 4, 2012, at Alcoa's request, relator was examined by Kevin
Trangle, M.D. In his five-page narrative report, Dr. Trangle states:
Mr. Pacheco did have a work-related injury for which an
allowance request of crushing injury to right foot and
contusion of right foot should be honored; these conditions
should be allowed.

From a diagnostic perspective, he should have an EMG/NCV
study and MRI scan done of the foot and ankle inasmuch as
he has not gotten better, still has pain and discomfort, and
still has problems with ambulation.

I would not begin physical therapy until these diagnostic
tests can be completed inasmuch the results of these tests
will define more specifically the type of therapy that may be
of benefit to him.

{¶ 48} 4. On November 12, 2012, relator underwent an MRI of his right ankle. On
November 26, 2012, the EMG/NCV study was performed.
{¶ 49} 5. On December 11, 2012, relator returned to see Dr. Wilber. In his office
note, Dr. Wilber states:
RESULTS: The EMG showed no neurologic abnormalities.
MRI did show the previous repaired Achilles tendon, but also
showed contusion to the area of the midfoot, but no
structural abnormalities.
No. 15AP-1033 18

{¶ 50} 6. On January 10, 2013, relator began physical therapy as approved by
Alcoa. On the evaluation form for the initial session, it is noted that relator's pain is
alleviated when his foot is "[p]ropped-up."
{¶ 51} 7. Relator continued to see Dr. Wilber who continued to find total
disability. He extended the estimated return to work date to November 1, 2012 and then
again to January 25, 2013.
{¶ 52} 8. On January 22, 2013, relator was examined by Dr. Wilber. In his office
note, Dr. Wilber states:
ASSESSMENT: Patient is progressing very slowly but he
has only had three sessions of therapy. I anticipate he is
going to be somewhat sore. For now we need to just continue
to push on with the therapy, working on stretching and
strengthening. I did refill his pain medication. We will need
to put in for more therapy since he thinks he only has three
more sessions.

{¶ 53} 9. Based on the January 22, 2013 examination, Dr. Wilber completed a
"Physician's Report of Work Ability" on a form designated as a Medco-14 by the Ohio
Bureau of Workers' Compensation. On the form, Dr. Wilber marked a box aside the
preprinted statement "[i]njured worker is temporarily not released to any work, including
the former position of employment." Dr. Wilber extended the disability to March 31,
2013.
{¶ 54} 10. On March 5, 2013, relator returned to Dr. Wilber for follow-up. In his
office note, Dr. Wilber states:
PHYSICAL EXAM: He still has some swelling around his
foot and he is hypersensitive over the entire dorsel and
planter aspect of the foot. Other than the hypersensitivity,
neurovascular status is intact. He has limited motion of the
ankle secondary to pain.

ASSESSMENT: Patient is not responding to the therapy.
We had gotten approval for Pain Management. Thus far he
has not been seen by Pain Management. I put in another
referral for Pain Management visit. We have asked for more
therapy but he is being scheduled to have an IME on the
17th, probably no further approvals will be made until after
the IME. We will see him back in four weeks for follow-up. I
did refill his Percocet for his pain.
No. 15AP-1033 19

{¶ 55} 11. Ten days later, on March 15, 2013, Dr. Wilber completed another
Medco-14. On the form, Dr. Wilber marked the box aside the following preprinted
statement: "[i]njured worker is not released to the former position of employment but
may return to available and appropriate work with restrictions."
{¶ 56} In the spaces provided, Dr. Wilber indicated the period to be April 1 to May
1, 2013.
{¶ 57} On the Medco-14, Dr. Wilber indicated by his marks that relator can work 8
hours per day and 40 hours per week; use his left foot to perform repetitive actions to
operate foot controls or motor vehicles; no operation of heavy machinery or driving while
taking prescribed medications; occasionally lift/carry 10 pounds; occasionally bend,
squat, kneel, twist/turn, and reach above shoulder; occasionally drive an automatic
vehicle; frequently type on a keyboard; sit for 8 hours with a break; walk for 2 hours with
a break; and stand for 2 hours with a break.
{¶ 58} 12. Earlier on March 14, 2013, at Alcoa's request, relator was examined by
orthopedic surgeon Dennis A. Glazer, M.D. In his six-page narrative report, Dr. Glazer
opines:
It is my opinion within reasonable medical probability that
Mr. Pacheco is unable to perform the duties as outlined in
the job description. If he would return to work, he would
have to have a sedentary job with no walking and no carrying
since he would have to walk with crutches. If the trip from
the parking lot to his point of work was over several 100
yards, he would have to be brought in with a motorized car
or wheelchair. He would be unable to drive since he could
not use his right leg for accelerator or breaking.

{¶ 59} 13. On April 1, 2013, relator returned to work in a light-duty capacity at
Alcoa.
{¶ 60} 14. On April 2, 2013, relator was examined by Dr. Wilber. In his office note,
Dr. Wilber states:
HISTORY OF PRESENT ILLNESS: Alfredo is seen in
follow-up for his foot. He has had his IME but we have had
no response. We still have no response also for approval for
pain management and also for more therapy. He has been
back at work this week. They have him sitting in a cafeteria
doing nothing with his foot down. He tries to keep it propped
up but it is very painful.
No. 15AP-1033 20

PHYSICAL EXAM: Foot is still diffusely tender. There is
no real swelling. Neurocirculatory status is intact.

ASSESSMENT: Patient still has chronic pain in his foot.
He needs more therapy and pain management. I am
concerned about him just sitting with the foot down.
Hopefully they will at least let him get it elevated and move
around some. We will see him back in another four weeks. I
refilled his Percocet.
{¶ 61} 15. Relator returned to Alcoa for the period April 1 through April 19, 2013.
Relator did not report to Alcoa beyond April 19, 2013.
{¶ 62} 16. On April 22, 2013, relator was initially examined by Todd S. Hochman,
M.D. Dr. Hochman wrote:
The patient was recently released to try light duty work by
Dr. Wilber. The patient has been doing the best he can to
remain productive at work light duty but he is having
difficulty. He has difficulty getting around because of the
right foot pain. He is dependent on analgesic medications.
He is in today to establish with me as Physician of Record.
For the purpose of today's evaluation, the patient is
complaining of right foot pain. The patient also has
numbness/tingling. The patient attributes the above
complaints to the work injury that occurred on May 22,
2012.

***

PHYSICAL EXAMINATION:

***

With regard to the right foot, there is some swelling about
the right foot. There is some discoloration. There is some
dystrophy in the nails, especially the 4th and 5th nails. He
does have an effusion about the ankle. He is extremely
tender inferior to the right medial and lateral malleoli, as
well as over the anterior ankle joint. He is extremely guarded
with range of motion throughout the right ankle. He
ambulated with the assistance of crutches.

***

TX PLAN:
No. 15AP-1033 21

***

The patient was released to work, light duty, on April 1, 2013.
The patient is having difficulty with the regular job duties.
He still has quite a bit of pain throughout the right foot. He is
ambulating with crutches. He is on narcotic analgesics. He is
having difficulty concentrating. I will go ahead and pull him
back out of work. A new Medco-14 will be updated.

{¶ 63} 17. On April 22, 2013, Dr. Hochman completed a C-84. On the C-84,
Dr. Hochman indicated by his mark that "a new period of temporary total compensation"
is being requested. Dr. Hochman indicated that the new period of temporary total
disability begins after the last date worked on April 19, 2013.
{¶ 64} 18. On April 22, 2013, Dr. Hochman also completed a Medco-14 on which
he opined that relator "is temporarily not released to any work, including the former
position of employment."
{¶ 65} On the Medco-14, Dr. Hochman indicated relator's capabilities and
restrictions. Dr. Hochman indicated relator can perform simple grasping with both
hands; perform repetitive wrist motion with both wrists; use his left foot to perform
repetitive actions to operate foot controls or motor vehicles; no operation of heavy
machinery or driving while taking prescribed medications; no lifting/carrying, bending,
squatting, kneeling, twisting/turning; occasionally reach above shoulder; frequently type
on a keyboard; sit six-to-eight hours per day with a break; walk for one hour with a break;
and stand for one hour with a break.
{¶ 66} 19. The record contains a two-page "To Whom It May Concern" letter or
report from Anna Marie Sesek, PA-C. Sesek states:
In his March 15, 2013 Medco-14, Dr. Wilber released Alfredo
Pacheco to return to work at Alcoa with restrictions. On
April 1, 2013, Mr. Pacheco returned to a light duty position at
Alcoa. The light duty position was strictly sedentary with no
lifting, carrying, pulling/pushing, bending, squatting,
kneeling, twisting, turning, reaching above shoulder, and/or
climbing. Mr. Pacheco was also able to prop his right leg up
on a chair.

On April 1, 2013, Mr. Alfredo Pacheco arrived at the Alcoa
medical department for his Return to Work release. A
Handicap placard was given to Mr. Pacheco to allow him to
No. 15AP-1033 22

park outside of building 118 from April 1, 2013 until
June 1, 2013. This accommodation was made so that
Mr. Pacheco would be able to maneuver to the cafeteria that
is in building 118. Mr. Pacheco had access to a restroom
outside of the cafeteria where he was stationed. It is 84 feet
from the parking lot to the front door of building 118. It is
120 feet from the front door to the cafeteria and it is 36 feet
from the cafeteria to the restroom.

On April 17, 2013, I conducted Mr. Pacheco's annual physical
examination. At the time of the exam, Mr. Pacheco was able
to easily provide written responses to a number of questions
in connection with his medical history and was able to follow
all of my instructions without problem. Mr. Pacheco did not
appear to have any difficulty with being able to
concentrate/focus and/or comprehend information.

On April 23, 2013, I received Dr. Hochman's C-84 and
Medco-14 dated April 22, 2013, wherein he completely
disabled Mr. Pacheco for the period of April 22, 2013
through June 30, 2013. As Mr. Pacheco's light duty position
at Alcoa was strictly sedentary in nature, I contacted
Dr. Hochman's office on April 23, 2013 to discuss his
medical basis for completely disabling Mr. Pacheco, and
removing him from his light duty position at Alcoa,
especially since Dr. Hochman simultaneously set forth
restrictions, which were fully accommodated in the light duty
position that Mr. Pacheco had been performing for the
period of April 1, 2013 ─ April 19, 2013. When I did not
receive a response, I left a detailed voicemail message for
Dr. Hochman on his office voice mail. I never received a
response from Dr. Hochman or anyone from his office.

Please note that Mr. Pacheco never reported to anyone in the
Alcoa medical department that he had any physical difficulty
with the sedentary light duty position of employment that he
performed beginning April 1, 2013 through April 19, 2013.

{¶ 67} 20. The record also contains the affidavit of Derrick Perkins executed
May 24, 2013. The affidavit avers:
[One] At all times pertinent hereto, I have been a Human
Resources Generalist at Alcoa, Inc.

[Two] The attached Light Duty Job Description document
attached hereto as Exhibit A is a true and accurate copy of
No. 15AP-1033 23

the job that Mr. Pacheco performed at Alcoa during the
period of April 1, 2013 through April 19, 2013.

(Emphasis sic.)
{¶ 68} 21. Exhibit A attached to the Perkins affidavit states:
Alfredo Pacheco Light Duty Description from April 1, 2013 ─
April 22, 2013

From April 1, 2013 until April 22, 2013, Alfredo Pacheco was
restricted to sedentary work outside of the Manufacturing
environment pursuant to the Medco-14 from Dr. Wilber
dated 3/15/13 (a copy is attached to this description). At all
times during this period, Mr. Pacheco sat in the cafeteria at
Alcoa, where he was able to prop his right leg on a chair to
ensure comfort in his leg. At various times during this
period, he was assigned to complete web based training,
which involved using a laptop, and file and sort reports from
the Quality organization. At all times Mr. Pacheco was in a
strictly sedentary position with no lifting, carrying,
pulling/pushing, bending, squatting, kneeling, twisting,
turning, reaching above shoulder and/or climbing. His work
hours were from 6 a.m. - 2 p.m. with two breaks (50
minutes) and Larry Walters remained his direct supervisor,
though he received direction to complete training and file
reports by the Safety and Quality organizations respectively.
His rate of pay was $19.17 per hour for his position as a Final
Operator at job grade 11.

{¶ 69} 22. On April 30, 2013, relator was again seen by Dr. Wilber for follow-up.
In his office note, Dr. Wilber made no reference to the fact that relator was no longer
working at Alcoa. The office note states:
HISTORY OF PRESENT ILLNESS: Alfredo is seen in
follow-up for his crush injury to his foot. He has had his IME
and I have read this over with him. IME agrees with the fact
that he had a crush injury to the foot and all his problems are
related to the crush injury. He agrees that he needs further
evaluation which includes more therapy and pain
management.

I think we need to amend the claim to include regional pain
syndrome. He has also been seen by Dr. Todd Hochman who
is going to work with him on his case.
No. 15AP-1033 24

PLAN: We will work on getting the claim amended. We will
get him involved with pain management as soon as possible
and I will see him back in four weeks.

{¶ 70} 23. On May 1, 2013, on form C-86, relator filed a motion for the payment of
TTD compensation beginning April 22, 2013.
{¶ 71} 24. On May 28, 2013, relator was again seen by Dr. Wilber. In his office
note, Dr. Wilber does not reference that relator was no longer working at Alcoa or that he
had changed his opinion regarding relator's restrictions:
HISTORY OF PRESENT ILLNESS: Alfredo is seen in
follow-up for crush injury to his foot. He is getting therapy
through Dr. Hochman and he says he is real sore after
therapy, but does see some improvement.

PHYSICAL EXAM: His foot is still diffusely tender. There
is some mild swelling and hypersensitivity. Neurocirculatory
status is intact.

ASSESSMENT: Patient is improving slowly. He has an
appointment for Pain Management in about three weeks. We
have tried to push this up but apparently there is no earlier
appointment time. Hopefully they can start working on his
complex regional pain syndrome as soon as possible. I did
refill his medication, continue with Dr. Hochman, and I will
see him back in four weeks.

{¶ 72} 25. On June 20, 2013, Dr. Wilber wrote to relator's attorney:
I have reviewed all the information supplied to me which
includes my records, office visit of Dr. Todd Hochman on
4/22/13, and records of proceeding dated 5/22/12. To
summarize, Alfredo Pacheco was injured at work on May 22,
2012 while working for Alcoa and had his right foot crushed
between two electrical pallet jacks. He had severe pain and
swelling. He ultimately came under my care but care was
delayed for many reasons, most of which is inability to get
approval for treatment and to add diagnoses. Because of the
swelling and pain, he had been off work because of his
injury.

In April a request was made for Alcoa as to whether he could
return to a light duty status. Due to the amount of time he
was off, I felt it was reasonable to attempt return to work on
a light duty status. He did return to work on April 1st where
he sat in a room on a plastic chair and was able to elevate the
No. 15AP-1033 25

foot. During this time, his symptoms apparently [became]
progressively worse and he was ultimately seen by
Dr. Hochman on 4/22/13 where he had significant swelling,
an ankle effusion, and severe pain. This was in spite of being
on narcotic medications. It was Dr. Hochman's opinion at
that time that returning to work was aggravating his
symptoms and he recommended that the patient be off duty
again.

I saw him on 4/30/2013. It is my opinion that
Dr. Hochman's decision to take him off work was
appropriate and purely based on his work related injury and
his aggravation by returning to work.

At this point he is receiving therapy and pain management,
but still having significant problems with pain and swelling,
and I think it would be to his determent [sic] to return to
work even on a light duty status. I do not believe that work
could offer anybody anything lighter than sitting in a chair
with the foot elevated but even this aggravated his condition.
In view of this I feel that his benefits for temporary, total
disability should be reinstituted. I have completed a new
Medco-14 reflecting my opinion.

{¶ 73} 26. On June 20, 2013, Dr. Wilber completed a Medco-14 on which he
indicated by his mark that relator "is temporarily not released to any work, including the
former position of employment from (date): 4/22/13 to 7/22/13."
{¶ 74} 27. Earlier, on May 13, 2013, at Alcoa's request, relator was examined by
Paul C. Martin, M.D. In his five-page narrative report, Dr. Martin opines:
It is my medical opinion that additional appropriate
treatment would be reasonably expected to result in
additional functional/physiologic improvement, and as such,
Mr. Pacheco would not at this point be considered as having
reached maximum medical improvement. Referral to a pain
management physician/facility that is well versed in
providing appropriate treatment for this condition is
medically indicated and appropriate at this time.

***

After having reviewed the written job description for "small
aero final operator" and considered Mr. Pacheco's current
symptoms and objective clinical findings related to this work
injury which include RSD/CRPS and the current allowed
No. 15AP-1033 26

conditions in this claim, it is my medical opinion
Mr. Pacheco is not physically capable of returning to his
former position of employment without restrictions. In the
alternative, it is my opinion that Mr. Pacheco is physically
capable of working in a modified work environment
consistent with the restrictions delineated on the March 15,
2013, Medco completed by Dr. Wilber. It is not possible at
this time to estimate how long such restrictions will be
necessary as this will in part be dependent upon
Mr. Pacheco's response to the treatment being
recommended.

***

Based upon review of Mr. Pacheco's own reported history as
well as the provided job description of the light duty work
which was offered to Mr. Pacheco, as it relates to the
currently allowed conditions and the RSD/CRPS, it is my
medical opinion Mr. Pacheco has been physically capable of
continuing in this capacity since April 1, 2013. This particular
job allows Mr. Pacheco to sit, while at the same time being
able to elevate his right leg. According to the enclosed
description this job is a strictly sedentary position with no
lifting, carrying, pulling, pushing, bending, squatting,
kneeling, twisting, turning or reaching above shoulder
and/or climbing. It is my medical opinion Mr. Pacheco has
been physically capable of working in this capacity since
April 2013 to the present and continuing.

{¶ 75} 28. On May 28, 2013, Dr. Martin issued an addendum to his report:
It is my medical opinion Mr. Pacheco's claim should be
additionally allowed for the condition "complex regional pain
syndrome of the right ankle/foot."

***

As explained in my response to question #3 in my May 13,
2013, report, it is my medical opinion that based upon the
allowed conditions as well as the additional condition of
complex regional pain syndrome right foot and ankle,
Mr. Pacheco has been physically capable of working in a light
duty position that he had returned to Alcoa on April 1, 2013,
from April 22, 2013, to current and continuing.
No. 15AP-1033 27

{¶ 76} 29. By letter dated May 29, 2013, Alcoa's counsel certified "Complex
Regional Pain Syndrome of the right ankle/foot as an allowed condition of the instant
claim."
{¶ 77} 30. On July 12, 2013, Dr. Martin issued another addendum:
It is my medical opinion Mr. Pacheco could have continued
working in the light duty position provided based upon the
restrictions noted by Dr. Hochman on the Medco-14 dated,
April 22, 2013.

***

Based upon the description of this particular light duty
position, Mr. Pacheco is allowed to sit with the ability to
elevate his right leg for comfort. He is not required to do any
amount of lifting, carrying, pushing or pulling, bending[,]
squatting, kneeling, twisting, turning, reaching above
shoulder or climbing. It is my opinion these are work
activities which are certainly no more stressful than what
Mr. Pacheco would have been engaged in while at home.

Considering the fact Mr. Pacheco's employer is able to offer
such a position that is within Mr. Pacheco's physical
capabilities, I do not identify any credible rationale or
reasonable medical basis for Dr. Hochman removing
Mr. Pacheco from this position on April 22, 2013.

{¶ 78} 31. Earlier, on May 29, 2013, a district hearing officer ("DHO") heard the C-
84 request from Dr. Hochman requesting a new period of TTD compensation beginning
April 22, 2013. The hearing was apparently not recorded. Following the hearing, the
DHO issued an order denying the request for TTD compensation.
{¶ 79} 32. Relator administratively appealed the DHO's order of May 29, 2013.
{¶ 80} 33. On July 30, 2013, an SHO heard relator's administrative appeal from
the DHO's order of May 29, 2013. The hearing was recorded and transcribed for the
record. The SHO's order vacates the DHO's order. The SHO's order explains:
The Staff Hearing Officer denies the injured worker's request
for payment of temporary total disability compensation for
the period 4/22/13 to present (7/30/13). The Staff Hearing
Officer finds that the employer provided appropriate
restricted duty work through 4/22/13 and, but for the
injured worker's 'abandonment' of this position of
No. 15AP-1033 28

employment, he could have continued to avail himself of
such restricted duty work.

The Staff Hearing Officer finds that the injured worker was
released to return to restricted duty work (see, Dr. Wilbur's
[sic] MEDCO-14 of 3/15/13) and did, in fact, return to
restricted, sedentary work on 4/01/13. There is no evidence
found persuasive that demonstrates that the employer did
not comply with the physical restrictions set forth by
Dr. Wilbur [sic] during the period during which the injured
worker worked in a restricted duty capacity (4/01/13 to
4/21/13). There is no evidence found persuasive that
establishes that the employer, during the restricted duty
work period in question, prohibited the injured worker from
modifying his position, elevating his foot/leg or making
other positional changes as would permit him the same
degree of adaptation of position as could be accomplished in
a non-work environment. Again, the restrictions set forth by
his attending physician at the time were complied with.

A review of the office notes of Dr. Wilbur [sic], in the months
leading up to his 'release' of the injured worker to return to
restricted duty work on 4/1/13, reveals that the clinical
findings and complaints remained consistent. With these
complaints and findings in mind, Dr. Wilbur indicated that a
return to restricted duty work was appropriate. Dr. Wilbur's
[sic] concern (4/2/13 note) as to the injured worker sitting
"with his foot down" erroneously suggests that the employer
compelled the injured worker to remain in such a position.
There is no evidence to support such a belief, nor did the
injured worker make such an assertion at hearing (7/30/13).

The Self Insured Employer's certification of the claim for the
additional condition of "complex regional pain syndrome"
(see, letter of 5/29/13) amounted to only an
acknowledgement of a condition whose symptoms and
impairments were already present. Such certification did not
amount to an acknowledgment that some body area or
injury, other than that to the injured worker's right foot, was
responsible for his symptoms and restrictions. The MEDCO-
14s and notes of Dr. Wilbur [sic], prior to 4/22/13, included
assessments relating to this condition in their analysis and
findings, irrespective of its status (at that time) as an
unrecognized condition.

The injured worker asserts that, as of 4/22/13, he became
unable to tolerate even the restricted, sedentary duty work
No. 15AP-1033 29

provided by the employer up to that date. The injured worker
relies upon the subsequent notes of Dr. Hochman, wherein
Dr. Hochman now asserts that the injured worker is unable
to perform any type of work activity. The Staff Hearing
Officer is not persuaded. The injured worker has and would
likely have experienced similar symptoms and restrictions
whether he was sedentary at home or sedentary at his place
of restricted duty work. That he is in need of ongoing
treatment and further analysis and evaluation of his
condition is not tantamount to a finding that he is unfit for
restricted duty work activity. The 5/13/13 report of
Dr. Martin and the 3/14/13 report of Dr. Glazer are relied
upon in part.

{¶ 81} 34. On August 22, 2013, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of July 30, 2013.
{¶ 82} 35. On July 7, 2014, relator filed in this court a mandamus action that was
assigned case number 14AP-521. In that original action, relator challenged the SHO's
order of July 30, 2013.
{¶ 83} 36. On November 26, 2014, the parties, through counsel, filed in this court
a Civ.R. 41(A) stipulation of dismissal.
{¶ 84} 37. On December 2, 2014, this court issued a journal entry of dismissal in
case number 14AP-521. In its journal entry, this court accepted the parties' stipulation of
dismissal.
{¶ 85} 38. On December 23, 2014, an SHO issued an order recognizing the
stipulation of dismissal and the parties' agreement. The SHO's order of December 23,
2014 states:
Pursuant to the Judgement Entry of Dismissal issued by the
Tenth Appellate District Court of Appeals, dated
12/02/2014, and the Joint Stipulation of Dismissal filed with
the Clerk of Courts of the Franklin County Court of Appeals,
dated 11/26/2014, which was filed with the Industrial
Commission on 12/01/2014, for the case of State ex rel.
Alfredo Pacheco v. Indus. Comm. and Aluminum Co. of
America/Cleveland Works, assigned Case No. 14AP0521, it is
found that the requested Writ of Mandamus has been
dismissed without prejudice. The following order is issued by
agreement of the parties:
No. 15AP-1033 30

It is hereby ordered that the order of the Staff Hearing
[Officer] dated July 30, 2013, and mailed August 30, 2013,
which denied the Injured Worker's application for temporary
total disability compensation is vacated.

It is further ordered that this claim is to be referred to the
Hearing Administrator to schedule a hearing before a Staff
Hearing Officer, to determine whether the Injured Worker is
entitled to temporary total disability compensation, for the
period of April 22, 2013 through June 30, 2013, and to
continue, if supported by medical evidence, pursuant to R.C.
4123.56, as requested in his Motion, dated April 30, 2013.

The Staff Hearing Officer is to consider all relevant medical
evidence from the stipulated evidence in the case before the
10th District Court of Appeals, 14AP000521, and shall issue
an order which either grants or denies the requested
compensation, accurately cites the evidence which is the
basis for the decision and provides an explanation for the
decision in accordance with State ex rel. Mitchell v. Robbins
& Meyers, Inc., 6 Ohio St.3d 481 (1983) and State ex rel.
Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991). The Staff
Hearing Officer's order will be subject to the usual rights of
administrative appeal as provided in R.C. 4123.511.

{¶ 86} 39. On July 15, 2015, an SHO again heard the administrative appeal from
the DHO's order of May 29, 2013. The July 15, 2015 hearing was recorded and
transcribed for the record.
{¶ 87} 40. Following the July 15, 2015 hearing, the SHO issued an order denying
the request for the payment of TTD compensation beginning April 22, 2013. The SHO's
order of July 15, 2015 explains:
Procedurally this issued [sic] comes before the Commission
as a result of a mandamus [sic] action which was dismissed.
The parties by agreement vacated the Staff Hearing Officer
order issued 07/30/2013 denying the payment of temporary
total disability compensation commencing from 04/22/2013
and agreed that the issue should be sent back to the
Commission for a new hearing before Staff Hearing Officer
once again on the Injured Worker's appeal filed 06/05/2013
on the issue of temporary total disability compensation
commencing from 04/22/2013.

It is the order of the Staff Hearing Officer that the Injured
Worker's request for the payment of temporary total
No. 15AP-1033 31

disability compensation commencing 04/22/2013 per the
MEDCO-14 Physician's Reports of Work Ability and C-84
Requests for Temporary Total Compensation of Todd
Hochman, M.D. is denied.

It is the finding of the Staff Hearing Officer that the Injured
Worker has failed to sustain his burden of proof in
establishing entitlement to the requested temporary total
disability compensation.

It is the finding of the Staff Hearing Officer that the Injured
Worker was released to return to work at modified duty by
his then physician of record John Wilbur [sic], M.D., on
04/01/2013. The Injured Worker did return to work on
04/01/2013 to a modified duty position within his
restrictions as set forth by Dr. Wilbur [sic] (MEDCO-14
dated 03/15/2013). The Injured Worker continued to work
in the modified duty position through 04/19/2013. The
Injured Worker began treating with Dr. Hochman on
04/22/2013 and at that time was temporarily and totally
disabled by Dr. Hochman effective on that date. The Staff
Hearing Officer finds that the Injured Worker returned to
work in a modified light-duty position for approximately
three weeks wherein, the Injured Worker performed the
light-duty job tasks as required by the Self-Insuring
Employer without any documented complaints regarding his
physical condition or ability to do the job to the Employer
during the relevant time frame.

The Staff Hearing Officer does not find the treatment
records, MEDCO-14s, and C-84s of Dr. Hochman persuasive
as the restrictions provided by Dr. Hochman are
indistinguishable from the restrictions provided by
Dr. Wilbur [sic] and the Injured Worker was able to return to
work in a modified job under those restrictions. The
documentation on file indicates that the Employer complied
with the restrictions as set forth by Dr. Wilbur [sic]
(05/24/2013 affidavit of Derrick Perkins and statement from
Anna Marie Sesek, PAC filed 05/29/2013). A comparison of
the treatment records leading up to the Injured Worker's
return to modified duty work and his total disability from
Dr. Wilbur [sic] and Dr. Hochman note the same clinical
findings and subjective complaints without any documented
worsening of Injured Worker's objective clinical findings or
functional ability (03/05/2013 MEDCO-14 of Dr. Wilbur
[sic], 04/22/2013 MEDCO-14 of Dr. Hochman, 04/03/2013
No. 15AP-1033 32

office note of Dr. Wilbur [sic] and 04/22/2013 office note of
Dr. Hochman).

Per letter dated 05/29/2013 the Self-Insuring Employer
certified claim number 12-825379 for the condition of
chronic regional pain syndrome/RSD of the right foot,
however, that certification took into account in part medical
documentation dating back to at least 2012 (Kevin Trangle,
M.D. repo[r]t 10/08/2012) wherein, Injured Worker had
documented clinical findings consistent with the diagnosis of
chronic regional pain syndrome/RSD that was later
confirmed and causally related by Paul Martin, M.D. via a
05/13/2013 narrative report.

Therefore, the Staff Hearing Officer finds that the Self-
Insuring Employer's certification of the chronic regional pain
syndrome/RSD served as an acknowledgment of symptoms
which had been present for months prior to the claim
certification.

The Staff Hearing Officer finds based on a review of all the
medical documentation on file, evidence presented at
hearing and testimony from the Injured Worker
memorialized in the transcript filed 07/31/2015 that the
Injured Worker has failed to establish by a preponderance of
the evidence his entitlement to temporary total disability
compensation. The Staff Hearing Officer concludes that
there is a lack of persuasive medical documentation to
support that the Injured Worker could no longer perform his
modified job duties as a result of the allowed conditions in
the claim.

(Emphasis sic.)

{¶ 88} 41. On September 16, 2015, the three-member commission mailed an order
denying relator's request for reconsideration of the SHO's order of July 15, 2015.
{¶ 89} 42. On November 10, 2015, relator, Alfredo Pacheco, filed this mandamus
action.
Conclusions of Law:
{¶ 90} Two issues are presented: (1) whether Alcoa was required to give relator a
written job offer pursuant to Ohio Adm.Code 4121-3-32(A)(6), and (2) whether the
finding by the SHO (July 15, 2015 order) that Dr. Hochman's opinion is unpersuasive that
No. 15AP-1033 33

relator was unable to return to any employment as of April 22, 2013 is supported by some
evidence on which the SHO relied.
{¶ 91} The magistrate finds: (1) Alcoa was not required to give relator a written job
offer pursuant to Ohio Adm.Code 4121-3-32(A)(6), and (2) the finding by the SHO that
Dr. Hochman's opinion is unpersuasive is supported by some evidence on which the SHO
relied.
{¶ 92} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
First Issue
{¶ 93} R.C. 4123.56(A) provides that payment of TTD compensation shall not be
made for the period "when work within the physical capabilities of the employee is made
available by the employer."
{¶ 94} Supplementing the statute, Ohio Adm.Code 4121-3-32(A) provides the
following definitions:
(3) "Suitable employment" means work which is within the
employee's physical capabilities.

(4) "Treating physician" means the employee's attending
physician of record on the date of the job offer, in the event
of a written job offer to an employee by an employer.

***

(6) "Job offer" means a proposal, made in good faith, of
suitable employment within a reasonable proximity of the
injured worker's residence. If the injured worker refuses an
oral job offer and the employer intends to initiate
proceedings to terminate temporary total disability
compensation, the employer must give the injured worker a
written job offer at least forty-eight hours prior to initiating
proceedings. The written job offer shall identify the position
offered and shall include a description of the duties required
of the position and clearly specify the physical demands of
the job. If the employer files a motion with the industrial
commission to terminate payment of compensation, a copy
of the written offer must accompany the employer's initial
filing.
No. 15AP-1033 34

{¶ 95} Ohio Adm.Code 4121-3-32(B)(1)(d) provides that temporary total disability
may be terminated "[u]pon the finding of a district hearing officer that the employee has
received a written job offer of suitable employment."
{¶ 96} A written offer of suitable employment must clearly identify the physical
demands of the job; an offer lacking the requisite clarity cannot be rehabilitated by an
employer's verbal assurances that the claimant's limitations would be honored. State ex
rel. Ganu v. Willow Brook Christian Communities, 108 Ohio St.3d 296, 2006-Ohio-907,
¶ 14, citing State ex rel. Coxson v. Dairy Mart Stores of Ohio, Inc., 90 Ohio St.3d 428
(2000).
{¶ 97} "Ohio Adm.Code 4121-3-32(A)(6) requires an employer to put an offer of
light-duty work in writing only if the injured worker 'refuses an oral job offer' and the
employer intends to seek termination of TTD compensation." (Emphasis sic.) State ex
rel. Jacobs v. Indus. Comm., 10th Dist. No. 11AP-262, 2012-Ohio-3763, ¶ 10.
{¶ 98} Undisputedly, relator did not refuse a job offer. Relator accepted Alcoa's
oral job offer of light-duty work and he performed the job that was offered from April 1
through April 19, 2013. Thus, the written job offer requirement of Ohio Adm.Code 4121-
3-32(A)(6) was not implicated. Jacobs at ¶ 10.
Second Issue
{¶ 99} The commission alone is responsible for the evaluation of the weight and
credibility of the evidence before it. State ex rel. Burley v. Coil Packing, Inc., 31 Ohio
St.3d 18 (1987). In mandamus, the role of this court is limited to a determination as to
whether there is some evidence to support the commission's decision. Id.
{¶ 100} Moreover, the commission's order must briefly explain the
commission's reasoning in granting or denying workers' compensation benefits, and it
must specifically state the evidence relied upon. Noll.
{¶ 101} Here, it is clear that relator is inviting this court to step outside its
role in a mandamus review. Relator invites this court to reweigh the evidence that was
before the commission when it rendered its decision (SHO's order of July 15, 2015). This
court must decline the invitation.
{¶ 102} In weighing the evidence before her, the SHO found that the opinion
of Dr. Hochman is unpersuasive that relator was unable to return to any employment as
No. 15AP-1033 35

of April 22, 2013. It was Dr. Hochman's opinion, as expressed on his April 22, 2013 C-84
and Medco-14 that relator offered in support of his request for TTD compensation
beginning April 22, 2013.
{¶ 103} The SHO's order of July 15, 2015 explains in some detail the
reasoning that supports the SHO's conclusion. The SHO explains that the restrictions
provided by Dr. Hochman are "indistinguishable" from the restrictions provided by Dr.
Wilber. Significantly, relator does not dispute the SHO's observation in comparing the
restrictions of Drs. Wilber and Hochman. The SHO pointed out the absence of "any
documented worsening of Injured Worker's objective clinical findings or functional
ability."
{¶ 104} That is to say, relator worked for approximately three weeks at his light-
duty job at Alcoa under Dr. Wilber's restrictions and then failed to work further under
essentially the same restrictions from Dr. Hochman. The difference being that Dr. Wilber
released relator to work under the restrictions, but Dr. Hochman opined that relator was
unable to do any work.
{¶ 105} Clearly, the SHO's order of July 15, 2015 provides a valid basis supported
by some evidence for denial of the request for TTD compensation beginning April 22,
2013.
{¶ 106} Relator endeavors to explain why he quit the light-duty job by alleging that
Alcoa's job offer was not in good faith.
{¶ 107} At the July 30, 2013 hearing before the SHO, the following testimony was
elicited from relator by his counsel:
Q. Mr. Pacheco, you were off work from the date of injury
until you returned to work on April 1st of this year; is that
accurate?

A. Yes.

Q. And when you returned to work on April 1st, can you
explain what you were doing for Alcoa?

A. They had me sitting in the cafeteria, just sitting there for
eight hours, basically on display.

Q. What kind of chair were you sitting in?
No. 15AP-1033 36

A. They were hard plastic chairs, very uncomfortable, and as
I said, just sitting there for eight hours, it was difficult for
me.

Q. Was it a high school-type cafeteria chair?

A. Pretty much, yeah, the hard plastic chairs, yeah.

Q. And you were able to elevate your foot on another plastic
chair?

A. On a hard plastic chair, yes, which was -- you know, wasn't
too comfortable.

Q. Did you have any sort of cushion or pillow to put your foot
on?

A. Nothing, no cushions, no pillows, no padding, nothing.

Q. Okay. Were you given any sort of assignments to do?

A. For the -- I was there for three weeks. For the first two
weeks, no, just sitting there, and then for about two days
they gave me just some paperwork to file or just put in order,
simple stuff like that.

Q. And during the time when you were just sitting in the
cafeteria, what was happening with the symptoms with
respect to your foot?

A. Just from having my foot down, swelling and aching,
throbbing, and when I tried elevating it, it just got worse
because I was putting it on a hard surface trying to rest it and
relieve some of the pressure, and it just got worse.

Q. So it's your testimony that your symptoms actually got
worse --

A. Yes.

Q. -- during this time?

A. Yes. I was actually worse than what I did when I got there.

(July 30, 2013 Tr. at 3-4.)
No. 15AP-1033 37

{¶ 108} During the July 15, 2015 hearing before the SHO, the following exchange
occurred between the SHO and relator's counsel:
THE HEARING OFFICER: I guess the only question I have
in regards to that is [] it your argument that if a job offer is
made in conformance with the law and it is written and it's
signed off on by the doctor, it has to be a productive job?

MR. PALNIK: I think that goes to the good faith of the job
offer.

THE HEARING OFFICER: Okay.

MR. PALNIK: I don't think that that is a good faith job offer.
If we look at the facts -- and there is testimony regarding this
in the prior transcript. I don't need to elicit that. They had
Mr. Pacheco sitting in the front of the cafeteria --

THE HEARING OFFICER: I understand what Mr. Pacheco
was doing. I do understand that.

MR. PALNIK: -- not the back of the cafeteria. He's sitting in
the front of the cafeteria so that everybody that walks in
through the door to go get lunch or to go eat lunch has to
walk by him and see him sitting there doing nothing. He's
not -- can't be in a corner. They instructed him where to sit.
He had to sit in the front. Not only was he there --

THE HEARING OFFICER: The only question that I had,
Mr. Palnik, was whether or not you felt in order for it to be a
good faith job offer, it had to be a productive job. That was
my only question.
MR. PALNIK: I think so. I absolutely would think so.
Whether he's filing things -- he said for a couple hours
during the three weeks, they did have him doing something.
I think so. If they don't have any work for him, he should be
getting temporary disability, not just sitting around on
display. So I think that goes for the good faith aspect of it.

(July 15, 2015 Tr. at 25-26.)

{¶ 109} Here, in his brief, relator argues:
The reason that Alcoa did not reduce its light-duty job offer
to writing is because being paid to sit on display in the
cafeteria doing nothing is not a legitimate good faith job.
OAC 4121-3-32(A)(6) and [Ellis Super Valu, Inc. v. Indus.
No. 15AP-1033 38

Comm., 115 Ohio St.3d 224, 2007-Ohio-4920]. Meriam-
Webster's dictionary defines "job" as "the work that a person
does regularly in order to earn money;" it further defines
"work" as "a specific task, duty, function, or assignment often
being a part or phase of some larger activity." "Legitimate" is
defined as "genuine." Alcoa paying Mr. Pacheco to sit in the
cafeteria on display to send message to his co-workers
cannot be classified as a "legitimate job" offered in good
faith.

(Relator's Brief, at 33.)

{¶ 110} In the magistrate's view, relator's testimony as to the duties (or lack
thereof) of the job that Alcoa provided beginning April 1, 2013 goes to the weight of the
medical evidence that was before the SHO during the July 15, 2015 hearing.
{¶ 111} Contrary to what relator seems to suggest, the SHO was not required to
find that Alcoa's job offer was made in bad faith or that relator was unable to continue the
job after April 22, 2013.
{¶ 112} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.

/S/ MAGISTRATE
KENNETH W. MACKE

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).
No. 15AP-1033 39