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State ex rel. Scarberry v. Comfort Specialist and Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

July 18, 2013

State of Ohio ex rel. Paul Scarberry, Relator,
v.
Comfort Specialist and Industrial Commission of Ohio, Respondents.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION.

O'Connor, Acciani & Levy, and Ronald T. Bella, for relator.

Michael DeWine, Attorney General, and Justine S. Casselle, for respondent Industrial Commission of Ohio.

DECISION

KLATT, P.J.

{¶ 1} Relator, Paul Scarberry, commenced this original action in mandamus seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying him permanent total disability ("PTD") compensation and to enter an order granting said compensation.

{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate found that the reports of Dr. Fritzhand and Dr. Tosi are some evidence supporting the commission's denial of PTD. The magistrate also found that the commission did not abuse its discretion by failing to identify and discuss the Cody vocational report because the commission did not rely on that report. Therefore, the magistrate has recommended that we deny relator's request for a writ of mandamus.

{¶ 3} Relator has filed objections to the magistrate's decision. In his first objection, relator contends that the magistrate erred by rejecting relator's argument that the commission abused its discretion by failing to consider, or explain, how relator's physical and psychological limitations affected his ability to engage in sustained remunerative employment. We disagree.

{¶ 4} The commission explained in considerable detail why it believed relator was not foreclosed from obtaining sustained remunerative employment despite his physical and psychological limitations. The commission is the expert on assessing vocational factors. In addition, the commission is not required to identify and discuss a report that it rejected. State ex rel. Lovell v. Indus. Comm., 74 Ohio St.3d 250 (1996). We see nothing in the record that indicates that the commission abused its discretion in assessing the non-medical factors applicable to relator or in its explanation of its decision. Therefore, we overrule relator's first objection.

{¶ 5} In his second objection, relator contends that the magistrate erred by concluding that the commission is an expert on whether relator is capable of sustained remunerative employment, and even if an expert, there not was some evidence to support its denial of PTD. Again, we disagree.

{¶ 6} The commission may credit offered vocational evidence, but expert opinion is not critical or necessary because the commission is the expert on this issue. State ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266, 271 (1997). It is well-settled law that the commission is the expert on non-medical factors, including vocational evidence. State ex rel. Patterson v. Indus. Comm., 10th Dist. No. 11AP-1063, 2013-Ohio-1016.

{¶ 7} Here, the commission identified the non-medical factors it considered-relator's age, education, and work history-and detailed its findings as to those factors. Because the commission is the expert on non-medical factors, and because there is some evidence to support its decision, we overrule relator's second objection.

{¶ 8} Following an independent review of this matter, we find that the magistrate has properly determined the facts and applied the appropriate law. Therefore, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we deny relator's request for a writ of mandamus.

Objections overruled; writ of mandamus denied.

TYACK and T. BRYANT, JJ., concur.

T. BRYANT, J., retired, of the Third Appellate District, assigned to active duty under authority of Ohio Constitution, Article IV, Section 6(C).

APPENDIX

Rendered on February 28, 2013

MAGISTRATE'S DECISION

IN MANDAMUS

KENNETH W. MACKE, MAGISTRATE.

{¶ 9} In this original action, relator, Paul Scarberry, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying him permanent total disability ("PTD") compensation and to enter an order granting the compensation.

Findings of Fact:

{¶ 10} 1. On December 10, 2002, relator injured his lower back when he fell from a ladder while employed as a heating, ventilation, and air conditioning ("HVAC") specialist. The employer was a state-fund employer.

{¶ 11} 2. The industrial claim (No. 02-882123) is allowed for:

Lumbar sprain; recurrent disc herniation L4-5; depressive disorder; lumbar spondylosis of the bilateral lumbar facets from L2-L3, L3-L4, L4-L5, and L5-S1.

{¶ 12} 3. Relator has undergone four surgeries to his lower back since the date of injury.

{¶ 13} 4. On July 10, 2011, treating physician, Allan T. Rison, M.D., opined:

At this point, it is my medical opinion that Paul Scarberry is deemed to be totally and permanently disabled due to his work-related injury. The patient has tried multiple surgical and interventional measures over the years that have only brought him to a baseline level of pain which makes most activities intolerable for him for long periods of time. The patient has also had significant depression regarding loss of function and quality of life. This in combination leads me to the conclusion of permanent disability.
At this point, the patient's pain is manageable for minimal and limited activities and he has been unable to undergo vocational rehab due to depression and difficulty sitting for long periods of time. Mr. Scarberry has tried to return to his previous occupation, however he was intolerant to it. He also has had acceleration of pain in which he underwent subsequent spinal cord stimulation permanent placement. Although this does help to control his day-to-day symptoms, it does not control acceleration of pain due to increased amounts of physical activity.

{¶ 14} 5. On July 29, 2011, relator filed an application for PTD compensation. In support of his application, relator submitted the July 10, 2011 report of Dr. Rison.

{¶ 15} 6. The PTD application form asks the applicant to provide information regarding his education. Relator indicated that he completed the tenth grade in 1980. Although he did not graduate from high school due to his father's death, he did later obtain a certificate for ...


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