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State ex rel. Hall v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

July 23, 2013

State ex rel. David S. Hall, Relator,
v.
The Industrial Commission of Ohio and TWC Concrete Services, LLC, Respondents.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

Clements, Mahin & Cohen, L.PA., Co., Edward Cohen and Mackenzie M. Farmer, for relator.

Michael DeWine, Attorney General, and Lydia M. Arko, for respondent Industrial Commission of Ohio.

DECISION

TYACK, J.

{¶ 1} David S. Hall filed this action in mandamus, seeking a writ to compel the Industrial Commission of Ohio ("commission") to re-evaluate his entitlement to permanent total disability ("PTD") compensation.

{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case was referred to a magistrate to conduct appropriate proceedings. The parties then stipulated the pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision, appended hereto, which contains detailed findings of fact and conclusions of law. The magistrate's decision includes a recommendation that we deny the request for a writ.

{¶ 3} Counsel for Hall has filed objections to the magistrate's decision. Counsel for the commission has filed a memorandum in response. The case is now before the court for a full, independent review.

{¶ 4} Hall's claim has been allowed for right inguinal hernia, injury nerve right pelvis/leg, and depressive disorder. The inguinal hernia was surgically treated in 2002 and 2007. Apparently, the hernia itself was repaired, but a severe, shooting pain from the right inguinal area down into the right thigh developed. The pain treatment he received has had only partial success, leaving Hall on regular doses of methadone and percocet.

{¶ 5} Hall attempted to participate in vocational rehabilitation but began missing his classes. He indicated that his doctors' appointments and his pain interfered with his participation.

{¶ 6} The Ohio Bureau of Workers' Compensation ("BWC") determined that, as of that time, Hall was medically unstable. The BWC indicated that Hall could hopefully return to rehabilitation once he could prove he was medically stable.

{¶ 7} At about this time, Hall was awarded Supplemental Security Income Disability payments, which apparently affected his motivation to return to rehabilitation. His treating physician reported that Hall had lumbar degenerative disc disease, which was considered for purposes of Social Security disability, but could not be considered for workers' compensation purposes.

{¶ 8} In May 2011, Hall's treating physician for pain purposes reported Hall's pain as being down to 6 on a scale of 0 to 10. Hall reported his pain medication as helping him function on a daily basis. Hall reported to his physician that he does a lot of physical activity, including mowing his grass and painting his garage.

{¶ 9} Another physician reported Hall as having no restrictions as to sedentary work and possibly being capable of light work.

{¶ 10} Clearly, Hall was medically capable of sustained remunerative employment, making an analysis of his non-medical disability factors necessary for the commission to determine if he qualified for PTD compensation.

{¶ 11} The staff hearing officer ("SHO") who addressed the nonmedical disability factors found Hall's age of 53 a neutral factor and his education and work history as positive factors. These findings are extremely reasonable and are not seriously contested in this mandamus proceeding.

{¶ 12} The point of contention seems to be whether Hall's participation in but failure to complete rehabilitation classes in computer skills should be viewed as a positive, negative or mutual factor. The SHO indicated that Hall's failure to resume rehabilitation "reflects negatively on his application" for PTD.

{¶ 13} We find that Hall's pain level had significantly reduced from the levels present when his rehabilitation efforts stopped. Before it stopped, Hall had acquired knowledge in a number of computer programs. The record before us does not demonstrate any reason why Hall could not find employment unless his lumbar problems made him incapable of sedentary work. As noted earlier, his lumbar problems are not part of the consideration in evaluating Hall's entitlement for benefits under the workers' compensation system.

{¶ 14} In short, Hall had the skills to enable him to find new employment and did not have cognizable medical conditions to prevent it regardless of his pursuing or not pursuing rehabilitation.

{¶ 15} The objections to the magistrate's decision are overruled. We adopt the findings of fact and conclusions of law contained in the magistrate's decision. As a result, we deny the request for a writ of mandamus.

Objections overruled; writ of mandamus denied.

KLATT, P.J, and O'GRADY, J, concur

APPENDIX

Rendered on April 9, 2013

IN MANDAMUS

MAGISTRATE'S DECISION

MAGISTRATE STEPHANIE BISCA BROOKS

{¶ 16} Relator, David S. Hall, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied relator's application for permanent total disability ("PTD") compensation and ordering the commission to grant his application for PTD compensation or to reconsider his application with a proper consideration of the effect of the ...


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