[Cite as Hobart v. Indus. Comm., 2018-Ohio-2853.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State of Ohio ex rel.] :
Mary C. Hobart,
:
Relator,
: No. 17AP-326
v.
: (REGULAR CALENDAR)
Industrial Commission of Ohio
and Pure Foods, LLC, :
Respondents. :
D E C I S I O N
Rendered on July 19, 2018
On brief: Anthony P. Christine, for relator.
On brief: Michael DeWine, Attorney General, and Crystal R.
Richie, for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
DORRIAN, J.
{¶ 1} Relator, Mary C. Hobart, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its December 13, 2016 order that denied her application for
permanent total disability ("PTD") compensation, and to enter a new order granting her
application.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who issued a decision, including findings of fact
and conclusions of law, which is appended hereto. The magistrate recommends this court
No. 17AP-326 2
grant the request for a writ of mandamus. Specifically, the magistrate found the reports of
Dr. Steven A. Cremer do not provide some evidence on which the commission could rely in
determining residual functional capacity.
{¶ 3} The commission has filed the following objection to the magistrate's decision:
The Magistrate Erred By Re-weighing The Medical Evidence.
{¶ 4} The magistrate stated the main issue is "whether the reports of Dr. Cremer
provide some evidence on which the commission exclusively relied in determining residual
functional capacity [pursuant to] Ohio Adm.Code 4121-3-34(B)(4)." (Appended Mag. Dec.
at ¶ 31.) The commission generally argues the magistrate impermissibly reweighed the
evidence and determined that the medical reports of Dr. Cremer were not some evidence
upon which the commission could rely to determine residual functional capacity and, in
doing so, the magistrate exceeded the appropriate level of review. The commission urges
this court to reject the magistrate's decision to issue the writ of mandamus and to find that
Dr. Cremer's reports is some evidence upon which the commission could rely to deny
relator's application for PTD compensation.
{¶ 5} The commission makes several specific arguments in support of its objection.
First, the commission takes issue with the magistrate's analysis:
Analysis begins with the observation that relator has no
industrial injury or impairment to her non-dominant left
upper extremity. In rendering an opinion on the "Physical
Strength Rating" form regarding the Ohio Adm.Code 4121-3-
34(B)(2) classification of physical demands of work, the
examining physician should consider to what extent, if any,
the non-dominant left upper extremity might be useful in the
performance of sedentary and/or light work. Here, Dr.
Cremer does not directly address how the left upper extremity
might assist the right upper extremity in the performance of
the physical demands of work.
Based solely on the reports of Dr. Cremer, it is difficult to see
how the severe right upper extremity impairment alone
permits any light work.
(Appended Mag. Dec. at ¶ 36-37.)
No. 17AP-326 3
{¶ 6} The commission construes this analysis as the magistrate creating a new
standard that: (1) the examining physician "should consider" the usefulness of a non-
allowed condition in the performance of the physical demands of work, and (2) the
examining physician should make such a notation on the physical strength rating form in
violation of the requirements to provide an opinion as to the claimant's ability to work
"[b]ased solely on impairment due to the allowed condition(s) in the claim." (Comm. Obj.
at 4.) Such a standard, according to the commission, violates the rule outlined in State ex
rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993), that non-allowed conditions cannot
be used to advance or defeat a claim for PTD compensation. Waddle stated that
" '[e]ntitlement to permanent total disability compensation requires a showing that the
medical impairment due to the allowed conditions, either alone or together with
nonmedical disability factors, prevents claimant from engaging in sustained remunerative
employment.' " Id. at 455, quoting State ex rel. LTV Steel Co. v. Indus. Comm., 65 Ohio
St.3d 22, 24 (1992). We disagree with the commission that Waddle prohibits, in this case,
consideration of how the left upper extremity might assist the right upper extremity in the
performance of the physical demands of light work. Such consideration is not the same as
consideration of a non-allowed condition as the basis of an award for PTD. To the contrary,
focusing solely on the impairment due to the allowed condition of the upper right extremity,
Dr. Cremer opined there was a 43 percent upper extremity impairment which is equivalent
to a 26 percent whole person impairment. The magistrate's analysis does not violate
Waddle. Furthermore, we do not construe the magistrate's analysis as creating a new
standard but, rather, as an observation regarding how the left upper extremity might assist
the right upper extremity in this case given Dr. Cremer's restrictions on the right upper
extremity.
{¶ 7} Second, the commission argues that contrary to the magistrate's conclusion,
"Ohio Adm.Code 4121-3-34(B)(2) does not require Dr. Cremer to 'consider to what extent,
if any, the non-dominant left upper extremity might be useful in the performance of
sedentary and/or light work,' " but, rather, simply classifies the physical demands of
particular types of work. (Comm. Obj. at 4, quoting Appended Mag. Dec. at ¶ 36.) However,
while Ohio Adm.Code 4121-3-34(B)(2) does not require consideration of how the left upper
extremity might assist the right upper extremity in the performance of the physical
No. 17AP-326 4
demands of work, in this case, such consideration would have served to explain how relator
could or could not comply with the demands of light-duty work given Dr. Cremer's
restrictions on the right upper extremity.
{¶ 8} Third, the commission argues the magistrate improperly determined that Dr.
Cremer's opinion failed to meet the criteria for light-duty work and to observe that Dr.
Cremer's restrictions against repetitive gripping, pulling, or pushing is inconsistent with
the definition of light work as defined in Ohio Adm.Code 4121-3-34(B). The commission
points to State ex rel. Rice v. J.P. Industries, Inc., 10th Dist. No. 97APD01-3 (Feb. 10, 1998)
(memorandum decision) for the proposition that a physician may choose a category of work
as set forth in Ohio Adm.Code 4121-3-34(B) and, at the same time, limit certain physical
activities within that category. According to the commission, an injured worker need not
be able to perform every job within a particular work category. However, we are mindful
of our conclusion in State ex rel. O'Brien v. Cincinnati Inc., 10th Dist. No. 07AP-825, 2008-
Ohio-2841, ¶ 10, that the commission cannot simply rely on a physician's "bottom line"
identification of an exertional category without examining the specific restrictions imposed
by the physician to make certain that any physical restrictions the physician lists
correspond with an ability to actually perform at the exertional level indicated by the
physician. Dr. Cremer imposed several restrictions: "[n]o repetitive gripping, pulling or
pushing with [right] hand. No weight bearing on right hand." (Appended Mag. Dec. at
¶ 26.) Examination of the specific restrictions imposed by Dr. Cremer was not improper.
{¶ 9} Finally, the commission argues the commission may accept all, none, or any
portion of any expert report and is not required to give special weight to any particular
vocational or medical report. State ex rel. Ellis v. McGraw Edison Co., 66 Ohio St.3d 92
(1993). However, as noted above, the commission must examine the specific restrictions
imposed by a physician and actually make certain that such restrictions correspond with an
ability to actually perform at the exertional level indicated by the physician. Furthermore,
in issuing the writ of mandamus, we are not, as the commission suggests, second-guessing
the medical correctness of Dr. Cremer's opinion but, rather, requiring the commission to
conduct such examination.
{¶ 10} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of the commission's objection, we find the magistrate has
No. 17AP-326 5
properly determined the pertinent facts and applied the appropriate law. We therefore
overrule the commission's objection to the magistrate's decision and adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained therein.
Accordingly, the requested writ of mandamus is hereby granted.
Objection overruled;
writ of mandamus granted.
BROWN, P.J., and BRUNNER, J., concur.
No. 17AP-326 6
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Mary C. Hobart, :
Relator, :
v. : No. 17AP-326
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Pure Foods, LLC, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on February 6, 2018
Anthony P. Christine, for relator.
Michael DeWine, Attorney General, and Crystal R. Richie, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 11} In this original action, relator, Mary C. Hobart, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate its
December 13, 2016 order that denies her application for permanent total disability ("PTD")
compensation, and to enter an order granting the application.
Findings of Fact:
{¶ 12} 1. On January 3, 2014, relator injured her right hand while employed as a
"plater" for respondent Pure Foods, LLC, a state-fund employer. The industrial claim (No.
14-30018) is allowed for:
No. 17AP-326 7
Contusion of right fourth finger; closed fracture distal phalanx
right hand second finger; crushing injury right second finger;
crushing injury right fourth finger; right carpal tunnel
syndrome; trigger finger right fourth finger.
{¶ 13} 2. Relator began receiving temporary total disability ("TTD") compensation.
{¶ 14} 3. On November 24, 2015, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), relator was examined by Karen Gade-Pulido, M.D. In her four-
page narrative report, Dr. Gade-Pulido states:
History according to the injured worker
Ms. Hobart is a 75-year-old, right-hand-dominant female who
reports that she was injured while working on a conveyor line
distributing food when the ceiling sprung a leak and her boss
asked that they remove the food towers. She was rolling these
out with the help of a colleague who smashed the right hand
in between two of the towers. She went to the ER and was
diagnosed with a hand fracture. She had the hand splinted and
was eventually referred to therapy. Despite this, she
continued to have persistent hand pain and developed
triggering of the 4th digit. She ultimately had a surgical
release of the carpal tunnel and the right 4th trigger finger.
This surgery was performed a year ago and has been followed
by extensive therapy. * * *
She lives alone and manages all of her activities of daily living
on her own. She continues to drive. She uses her left hand for
driving. She has not returned to work since this injury and
feels that she cannot return to work given her right-hand-
dominance and continued symptoms in the right hand. She
does not believe that she is young enough to consider taking
some other job, unless it were to be just sitting and answering
a phone.
She reports residual numbness in the right 4th finger and
burning in the right palm. She also has scar tissue that makes
her hand feel tight and stiff. She runs the hand under warm
water in the mornings to reduce the stiffness. She notes
persistent swelling on the dorsum of the right hand. She rates
her hand pain as 6-8/10, which she states is constant. She
takes Tylenol and Lodine for the pain, noting multiple
allergies to other medications.
{¶ 15} Further in her report, Dr. Gade-Pulido responds to several questions posed
by the bureau. Dr. Gade-Pulido responds as follows:
No. 17AP-326 8
Ms. Hobart has been through an extensive course of treatment
for the allowed conditions in this industrial claim, including
surgery and extensive therapy. While she continues to report
some stiffness and reduced sensation in the right hand,
additional treatment at this time is unlikely to result in any
fundamental functional or physiological change. She is
consequently at MMI for the conditions allowed in this
industrial claim.
***
She is at MMI as of 9/29/15 when she completed her
functional capacity evaluation.
***
She has received extensive treatment. Additional treatment at
this time is unlikely to result in additional change. A request
has been submitted for a paraffin bath. While this may help
with her symptoms of stiffness in the mornings, it is unlikely
to result in overall change in her condition and does not
impact her MMI status.
***
She is not likely to be able to resume her former position of
employment, given the repetitive demands of that position on
her affected right upper extremity.
***
The treatment to date has been medically necessary and
appropriate. Additional treatment at this time is not
indicated.
***
There are no additional diagnostic or treatment services
recommended relative to the allowed conditions in this
industrial claim.
***
Vocational rehabilitation is not indicated at this time.
No. 17AP-326 9
{¶ 16} 4. On December 30, 2015, citing the report from Dr. Gade-Pulido, the bureau
moved for the termination of TTD compensation.
{¶ 17} 5. Following a February 9, 2016 hearing, a district hearing officer ("DHO")
issued an order terminating TTD compensation as of the hearing date on grounds that the
industrial injury has reached maximum medical improvement ("MMI"). In support, the
DHO relied exclusively on the report of Dr. Gade-Pulido.
{¶ 18} 6. Relator administratively appealed the DHO's order of February 9, 2016
{¶ 19} 7. Following a March 21, 2016 hearing, a staff hearing officer ("SHO") issued
an order affirming the DHO's order. The SHO also relied exclusively on the report of Dr.
Gade-Pulido in determining that the industrial injury has reached MMI.
{¶ 20} 8. On April 12, 2016, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of March 21, 2016.
{¶ 21} 9. On April 23, 2016, at relator's request, she was examined by chiropractor,
John J. Clendenin, D.C. In his three-page narrative report, Dr. Clendenin states:
HISTORY: Ms. Hobart was injured when her right hand was
smashed between the two towers causing [her] to be taken to
the local emergency room. She has endured multiple surgeries
to her right hand and fingers. She has been through many
visits in physical rehabilitation with reported very limited
success. She is right hand dominant.
***
Ms. Hobart reports daily, severe pain, numbness, swelling and
weakness of the right hand and fingers. She further states that
she is unable to grip or lift anything with her right hand and
when she attempts it she drops it quickly. She does not feel
that she could perform any job requiring her to use her right
hand.
***
It is my opinion, based on this examination using the Fifth
Edition AMA Guides, that Ms. Hobart is not capable of
performing any gainful employment. My opinion was based
only on the allowed injuries in this complaint. She is,
therefore, in my professional opinion, permanently and
totally disabled.
No. 17AP-326 10
{¶ 22} 10. On April 26, 2016, relator filed an application for PTD compensation. In
support, relator submitted the report of Dr. Clendenin.
{¶ 23} 11. On July 7, 2016, at the commission's request, relator was examined by
orthopedist Steven A. Cremer, M.D. In his six-page narrative report, Dr. Cremer states:
History of Present Condition: Ms. Hobart is 75 years of
age. She states that on 01/03/2014, she was working on a
conveyor line putting food into trays. She states some pipes
broke and her hand became trapped as she tried to move carts
out of the way. Her right hand was crushed between two food
carts. She was initially evaluated at Austintown Urgent Care.
X-rays were obtained. She was placed in a splint and given
medication. She was referred to Dr. Jones, orthopedic
surgeon. She was placed in physical therapy. She developed
numbness and pain in the fingers and locking in the fourth
finger. She was diagnosed with carpal tunnel. Testing
included plain x-rays and electrodiagnostics. She eventually
underwent trigger finger release and carpal tunnel release.
Surgeries were performed for right carpal tunnel release and
A1 pulley release of the right fourth finger on 11/20/2014. She
then underwent post-operative hand therapy. Some
improvement was noted, but she still has significant difficulty
with her right hand.
Current Complaints: A constant burning pain and
numbness in the right hand which radiates somewhat into the
forearm. She notes peeling of the skin on the fourth digit. The
pain is severe. The pain is constant. It is currently treated with
Tylenol b.i.d. She does not take opioid analgesics due to
allergies. Pain levels are rated 9 out of 10 on a visual analog
pain scale. She wears a brace for comfort.
The pain is treated otherwise with ice and heat. She also
reports limited range of motion and significant difficulty with
grip. She has difficulty holding on to objects.
Impact on Activities: Ms. Hobart indicates that she lives
alone. She cannot perform previous activities such as
crocheting. She has a friend who helps her drive long
distances. She gets assistance with meals, as she cooks as little
as possible. She is able to do her own laundry. She can do her
own shopping. She uses her left hand to carry. Her driving is
limited to approximately five miles. She spends most of her
time reading and watching television. She notes difficulty
brushing her teeth, grasping eating utensils, and with tactile
feel of the right hand.
No. 17AP-326 11
***
Social History: She lives alone. She is widowed. She has not
worked outside the home since her hand injury. She worked
for the employer of record for approximately six months.
When she was widowed, she decided to supplement her
income by getting a job at which she was injured.
***
Physical Examination: On examination, this is an
appropriate-appearing for stated age woman. She is
approximately 5 feet 7 inches and 180 pounds. She was
cooperative throughout the examination. She removed the
wrist splint voluntarily for the evaluation. There is a 1.5 cm
scar over the A1 pulley which is moderately tender. Carpal
tunnel scar is diffusely tender with some degree of
hyperpathia on palpation. Median sensory distribution is
grade 3 functionally. Median motor function is grade 4. Ulnar
motor and sensory function and radial sensory function are
intact in this hand. Wrist extension is 20 degrees actively,
wrist flexion 30 degrees, radial deviation 10 degrees and ulnar
deviation 15 degrees. The digits show full extension. Fourth
digit DIP flexion at 35 degrees, PIP flexion at 60 degrees, and
MCP flexion 70 degrees. Second digit flexion 35 degrees DIP
joint, 50 degrees PIP joint flexion, and 70 degrees MCP joint
flexion. Grip measured on Jamar grip dynamometer was 30%
of that obtained on the left.
Elbow and shoulder range of motion are intact. Pulses are
intact. There is no palpable triggering actively or passively of
the fourth digit; though the tendon is tender to palpation at
the area of the scar. Nail beds are intact.
{¶ 24} 12. In his July 7, 2016 narrative report, Dr. Cremer presents a detailed
evaluation of relator's impairment based on the "AMA Guides, Fifth Edition." He
concludes:
Combining the impairment for the digital range of motion loss
as outlined above, range of motion loss at the wrist and motor
and sensory loss yields a 43% upper extremity impairment per
the combined values table. This is equivalent to a 26% whole
person impairment.
No. 17AP-326 12
It is noted that grip strength is diminished but given the range
of motion, limitations in grip strength cannot be included per
the AMA Guides.
Therefore, the total impairment for the injury of 01/03/2014,
is 26% whole person.
This individual is at MMI. No active treatment plan is in place.
She has had surgical intervention and appropriate
postoperative care.
{¶ 25} 13. On July 7, 2016, Dr. Cremer completed a form captioned "Physical
Strength Rating." On the form, Dr. Cremer indicated by his mark that relator is capable of
"light work."
{¶ 26} Under "[f]urther limitations, if indicated" and in the space provided, Dr.
Cremer wrote in his own hand:
[Right] hand splint must be worn. No repetitive gripping,
pulling or pushing with [right] hand. No weight bearing on
right hand.
{¶ 27} 14. Following a September 29, 2016 hearing, an SHO issued an order
denying the PTD application. The order was mailed October 8, 2016.
{¶ 28} 15. On October 19, 2016, relator moved for reconsideration of the SHO's
order of September 29, 2016.
{¶ 29} 16. Following a December 13, 2016 hearing, the three-member commission
issued an order that exercises continuing jurisdiction and vacates the SHO's order of
September 29, 2016. The commission's order also denies the application for PTD
compensation. The commission's order of December 13, 2016 explains:
[I]t is the decision of the Industrial Commission the Injured
Worker has met her burden of proving the Staff Hearing
Officer order, issued 10/08/2016, contains a clear mistake of
law of such character that remedial action would clearly
follow. Specifically, the Staff Hearing Officer erroneously
evaluated the Injured Worker's education as a positive
vocational factor when the Injured Worker's eighth grade
education, without a GED, is properly classified as a limited
education in accordance with Ohio Adm.Code 4121-3-
34(B)(3)(b)(iii). Therefore, the Commission exercises
continuing jurisdiction pursuant to R.C. 4123.52 * * * in order
to correct this error.
No. 17AP-326 13
It is the order of the Commission the Injured Worker's
Request for Reconsideration, filed 10/19/2016, is granted,
and the order of the Staff Hearing Officer, issued 10/08/2016,
is vacated. Notwithstanding the decision to grant the Injured
Worker's Request for Reconsideration, it is the order of the
Commission the IC-2, Application for Compensation for
Permanent Total Disability, filed 04/26/2016, is denied.
The Commission finds the allowed conditions do not render
the Injured Worker permanently and totally disabled.
The Injured Worker sustained injuries to her dominant right
hand, which required two surgical procedures. The
Commission relies upon the opinion from Steven Cremer,
M.D., dated 07/07/2016, to find residuals from this injury
prevent the Injured Worker's return to work at her former
position of employment. Dr. Cremer specified the Injured
Worker remains capable of light-duty work so long as the
Injured Worker wears a splint and avoids repetitive gripping,
pulling, or pushing with the right hand. Dr. Cremer also
advised against any weight bearing with the right hand.
Because the Injured Worker can no longer perform her former
position of employment, an analysis of the Injured Worker's
non-medical disability factors is necessary.
The Injured Worker is 76 years old, and ordinarily a person
beyond the typical age of retirement would be expected to
struggle to adapt to new work situations or to do work in
competition with others. However, the Injured Worker
reentered the workforce at the age of 72, and she testified she
intended to work, like her mother, until the age of 85. The
Commission therefore classifies the Injured Worker's age as a
neutral vocational factor.
As indicated above, the Injured Worker has a limited
education with schooling through the eighth grade. The
Injured Worker indicated on the IC-2 that she can read, write,
and perform basic math; at hearing, the Injured Worker
testified she left school to go to work rather than because of
any academic difficulties. The Commission notes the Injured
Worker completed the IC-2 on her own, which demonstrates
the Injured Worker's ability to complete an application,
understand written questions, and respond coherently in
writing. The commission further notes the Injured Worker
has made no effort to improve her education. The
No. 17AP-326 14
Commission classifies the Injured Worker's education as a
neutral vocational factor.
The Injured Worker only listed her former position of
employment on the IC-2 as a food plater. At hearing the
Injured Worker testified she also held jobs at a dairy, drove a
school bus, and served meals at a senior citizens center,
besides the Injured Worker's many years as a homemaker.
While these jobs were either unskilled or semi-skilled
positions, the Injured Worker's work history demonstrates
her ability to acquire work, maintain employment, and
develop job skills through on-the-job training. The
Commission therefore classifies the Injured Worker's work
experience as a positive vocational factor.
The Injured Worker has not participated in a rehabilitation
program, and she has not sought further education or training
to enhance her employability. Permanent total disability
compensation is compensation of last resort, and the
Commission finds the Injured Worker remains capable of
work consistent with the restrictions enumerated by Dr.
Cremer.
{¶ 30} 17. On May 4, 2017, relator, Mary C. Hobart, filed this mandamus action.
Conclusions of Law:
{¶ 31} The main issue is whether the reports of Dr. Cremer provide some evidence
on which the commission exclusively relied in determining residual functional capacity.
Ohio Adm.Code 4121-3-34(B)(4).
{¶ 32} Finding that the reports of Dr. Cremer do not provide some evidence on
which the commission relied in determining residual functional capacity, it is the
magistrate's decision that this court issue a writ of mandamus, as more fully explained
below.
Basic Law
{¶ 33} Ohio Adm.Code 4121-3-34 sets forth the commission's rules for the
adjudication of PTD applications. Ohio Adm.Code 4121-3-34(B) sets forth definitions.
{¶ 34} Ohio Adm.Code 4121-3-34(B)(2) is captioned "Classification of physical
demands of work." Thereunder, the code provides:
(a) "Sedentary work" means exerting up to ten pounds of force
occasionally (occasionally: activity or condition exists up to
one-third of the time) and/or a negligible amount of force
No. 17AP-326 15
frequently (frequently: activity or condition exists from one-
third to two-thirds of the time) to lift, carry, push, pull, or
otherwise move objects. Sedentary work involves sitting most
of the time, but may involve walking or standing for brief
periods of time. Jobs are sedentary if walking and standing
are required only occasionally and all other sedentary criteria
are met.
(b) "Light work" means exerting up to twenty pounds of force
occasionally, and/or up to ten pounds of force frequently,
and/or a negligible amount of force constantly (constantly:
activity or condition exists two-thirds or more of the time) to
move objects. Physical demand may be only a negligible
amount, a job should be rated light work: (i) when it requires
walking or standing to a significant degree; or (ii) when it
requires sitting most of the time but entails pushing and/or
pulling or [sic] arm or leg controls; and/or (iii) when the job
requires working at a production rate pace entailing the
constant pushing and/or pulling of materials even though the
weight of those materials is negligible.
{¶ 35} In State ex rel. O'Brien v. Cincinnati Inc., 10th Dist. No. 07AP-825, 2008-
Ohio-2841, at ¶ 9-10, the court summarized relevant case law:
Initially, it is important to note that a medical report that
identifies the worker's exertional category as defined in the
Ohio Administrative Code and does not include additional
opinions regarding specific restrictions on sitting, lifting,
standing, and so forth is still sufficient to constitute some
evidence. State ex rel. Ace v. Toyota of Cincinnati Co.,
Franklin App. No. 03AP-517, 2004 Ohio 3971, at P30. Thus, a
medical report may constitute evidence on which the
commission may rely when the physician simply opines the
claimant was limited to "sedentary work" and provides no
further details of the claimant's various functional
restrictions. Id.
On the other hand, the commission cannot simply rely on a
physician's "bottom line" identification of an exertional
category without examining the specific restrictions imposed
by the physician in the body of the report. See State ex rel.
Owens-Corning Fiberglas Corp. v. Indus. Comm., Franklin
App. No. 03AP-684, 2004 Ohio 3841; and State ex rel.
Howard v. Millennium Inorganic Chemicals, Franklin App.
No. 03AP-637, 2004 Ohio 6603. In both Owens-Corning and
Howard, the doctor indicated that the injured worker could
perform at a certain strength level, and yet, the rest of the
No. 17AP-326 16
report indicated greater restrictions on the injured worker
that would actually render him incapable of performing the
strength level work that the doctor had indicated he could
perform. This court held in Owens-Corning and Howard that
the commission cannot simply rely upon a determination that
an injured worker can perform at a certain strength level;
rather, the commission must review the doctor's report and
actually make certain that any physical restrictions the doctor
listed correspond with an ability to actually perform at the
exertional level indicated by the doctor.
Analysis
{¶ 36} Analysis begins with the observation that relator has no industrial injury or
impairment to her non-dominant left upper extremity. In rendering an opinion on the
"Physical Strength Rating" form regarding the Ohio Adm.Code 4121-3-34(B)(2)
classification of physical demands of work, the examining physician should consider to
what extent, if any, the non-dominant left upper extremity might be useful in the
performance of sedentary and/or light work. Here, Dr. Cremer does not directly address
how the left upper extremity might assist the right upper extremity in the performance of
the physical demands of work.
{¶ 37} Based solely on the reports of Dr. Cremer, it is difficult to see how the severe
right upper extremity impairment alone permits any light work.
{¶ 38} Numerically, Dr. Cremer opined that relator has a 43 percent upper extremity
impairment suggesting severe impairment of the dominant upper extremity.
{¶ 39} Significantly, under "Current Complaints," and "Impact on Activities," Dr.
Cremer reports "[s]he also reports limited range of motion and significant difficulty with
grip. She has difficulty holding on to objects." Further, Dr. Cremer notes "[s]he uses her
left hand to carry." He additionally notes "[s]he notes difficulty brushing her teeth,
grasping eating utensils, and with tactile feel of the right hand."
{¶ 40} Significantly, nowhere in his reports does Dr. Cremer even suggest that he
doubts the truthfulness of relator's complaints. See State ex rel. Logan Clay Prods. v.
Indus. Comm., 10th Dist. No. 14AP-808, 2015-Ohio-5235, ¶ 42 (the doctor's assessment of
the complaints in light of his examination can play a significant part in the doctor's
disability opinion).
No. 17AP-326 17
{¶ 41} Relator's description of the injury's impact on her daily activities is clearly
consistent with the limitations Dr. Cremer wrote in his own hand on the "Physical Strength
Rating" form.
{¶ 42} It can be further noted that Dr. Cremer's command that there shall be "no
repetitive gripping, pulling or pushing with [right] hand" is inconsistent with the first
sentence of the definition of light work:
"Light work" means exerting up to twenty pounds of force
occasionally, and/or up to ten pounds of force frequently,
and/or a negligible amount of force constantly (constantly:
activity or condition exists two-thirds or more of the time) to
move objects.
{¶ 43} Exerting up to 20 pounds occasionally and/or up to 10 pounds frequently
and/or a negligible amount of force constantly, as the definition provides, is inconsistent
with Dr. Cremer's restriction against "repetitive gripping, pulling or pushing."
{¶ 44} Moreover, the light work definition addresses work "at a production rate
pace" something relator clearly cannot do with her right upper extremity.
{¶ 45} Given the above analysis, it is clear that the reports of Dr. Cremer fail to
provide some evidence to support the commission's determination that the industrial
injury to the right upper extremity permits any light work. Accordingly, the commission
abused its discretion by relying on the reports of Dr. Cremer in its determination of residual
functional capacity.
{¶ 46} Because the commission abused its discretion in determining residual
functional capacity, it would be premature for this court to review the commission's non-
medical analysis. State ex rel. Showa Aluminum Corp. of Am. v. Indus. Comm., 176 Ohio
App.3d 540, 10th Dist. No. 07AP-729, 2008-Ohio-2951, citing State ex rel. Corona v. Indus.
Comm., 81 Ohio St.3d 587 (1998); State ex rel. Nickoli v. Indus. Comm., 10th Dist. No.
08AP-349, 2009-Ohio-243, ¶ 8, citing Corona.
{¶ 47} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate its December 13, 2016 order to the extent
that the application for PTD compensation is denied, and, in a manner consistent with this
magistrate's decision, enter a new order that adjudicates the PTD application.
No. 17AP-326 18
/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).
Hobart v. Indus. Comm.
Combined Opinion