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State ex rel Parker v. International House of Pancakes

December 4, 2008

STATE OF OHIO EX REL. MARY H. PARKER, RELATOR,
v.
INTERNATIONAL HOUSE OF PANCAKES AND INDUSTRIAL COMMISSION OF OHIO, RESPONDENTS.



The opinion of the court was delivered by: Sadler, J.

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶1} Relator, Mary H. Parker ("relator"), filed this original action requesting issuance of a writ of mandamus directing respondent, Industrial Commission of Ohio ("the commission"), to vacate its order denying her application for permanent total disability ("PTD") compensation, and to issue an order finding that she is entitled to that compensation.

{¶2} We referred this matter to a magistrate pursuant to Rule 12(M) of this court and Civ.R. 53. The magistrate issued a decision dated July 24, 2008 (attached as Appendix A) granting the requested writ in part. Specifically, the magistrate concluded that relator is entitled to a writ of mandamus directing the commission to reconsider her application for PTD compensation after reviewing the medical evidence and evaluating the non-medical disability factors. The commission filed objections to the magistrate's decision, and relator filed a response to those objections.

{¶3} The disagreement between the parties resolves to what "former position of employment" means for purposes of determining whether relator is entitled to PTD compensation. At the time of her industrial injury, relator was employed as a waitress, but after her injury, she worked for a number of years as a receptionist. The commission's Staff Hearing Officer ("SHO") concluded that the medical evidence showed relator was capable of returning to her former employment as a receptionist, and denied PTD compensation on that basis.

{¶4} The magistrate concluded that "former position of employment" has been defined as the position held at the time the employee was injured. Because the commission had not based its decision on the conclusion that relator could return to her former position of employment as a waitress, the magistrate found the commission was required to consider non-medical disability factors before denying PTD compensation, and that its failure to do so was not compliant with State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946. The magistrate thus concluded that a writ of mandamus should be granted directing the commission to consider whether the medical evidence shows that relator can return to her former position of employment as a waitress and, if not, whether the non-medical factors preclude her from maintaining any sustained remunerative employment.

{¶5} In its objections to the magistrate's decision, the commission argues that it appropriately concluded that relator was not entitled to PTD compensation because her medical restrictions do not prohibit her from returning to the job she had after her injury, thus demonstrating that she is capable of sustained remunerative employment. The commission further argues that the SHO order referring to a former position of employment other than the position she held when her injury occurred is irrelevant, and that reconsideration of the medical evidence and consideration of the non-medical factors would be vain acts given the commission's determination that relator is capable of sustained remunerative employment.

{¶6} The commission argues that "former position of employment" is actually a term of art applicable only to cases involving temporary total disability ("TTD") compensation, and that the SHO's use of the term, while arguably erroneous, should not alter the outcome of this case. However, "former position of employment" is not a term only applicable to TTD cases. Ohio Adm.Code 4121-3-34, which governs consideration of PTD claims, uses the term in a number of places. For example, Ohio Adm.Code 4121-3-34(D)(1)(c), which was the section cited by the SHO, provides that:

If, after hearing, the adjudicator finds that the injured worker is medically able to return to the former position of employment, the injured worker shall be found not to be permanently and totally disabled.

{¶7} We agree with the magistrate that "former position of employment" for purposes of Ohio Adm.Code 4121-3-34, as with use of the term in TTD cases, refers to the position of employment held at the time the industrial injury occurred. Thus, in this case, the commission was required to consider first whether the medical evidence showed that relator was capable of returning to her former position as a waitress and, if not, whether the non-medical factors showed that relator was capable of sustained remunerative employment as set forth in Ohio Adm.Code 4121-3-34(D)(2), which provides that:

(a) If, after hearing, the adjudicator finds that the medical impairment resulting from the allowed condition(s) in the claim(s) prohibits the injured worker's return to the former position of employment as well as prohibits the injured worker from performing any sustained remunerative employment, the injured worker shall be found to be permanently and totally disabled, without reference to the vocational factors listed in paragraph (B)(3) of this rule.

(b) If, after hearing, the adjudicator finds that the injured worker, based on the medical impairment resulting from the allowed conditions is unable to return to the former position of employment but may be able to engage in sustained remunerative employment, the non-medical factors shall be considered by the adjudicator.

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

{ΒΆ8} Consequently, the commission's objections to the magistrate's decision are overruled. Based on our independent review of the record, the magistrate appropriately found the facts and correctly applied the law. Thus, we adopt the magistrate's decision, grant relator's request for a writ of mandamus directing the commission to vacate its order denying relator's request for PTD compensation, and remand the matter to the ...


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