State of Ohio ex rel. William M. Hudson, Relator,
Industrial Commission of Ohio, G. Robert Toney & Associates National Liquidators and Progress Wire Products, Inc., Respondents.
IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION
Alan I. Goodman, for relator.
Michael DeWine, Attorney General, and Lydia M. Arko, for respondent Industrial Commission of Ohio.
(¶ 1} Relator, William M. Hudson, brings this original action seeking a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying his application for permanent total disability ("PTD") compensation and to enter an order granting the compensation.
(¶ 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 has now rendered a decision and recommendation that includes findings of fact and conclusions of law, which is appended to this decision. The magistrate found that the commission failed to consider all the allowed conditions in relator's industrial claims before denying relator's PTD application. Therefore, the magistrate has recommended that we grant relator's request for a writ of mandamus. The commission has filed an objection to the magistrate's decision, and the matter is now before us for our independent review.
(¶ 3} As reflected in the facts given in the magistrate's decision, relator has two industrial claims. Claim No. 95-498095 was allowed for sprain lumbrosacral; contusion left hip; aggravation of pre-existing degenerative disc disease L5-S1; aggravation of L5-S1 spondyloisthesis; disc protusion; and dysthymic. Dysthymic disorder is also known as neurotic depression. Claim No. 06-886838 was allowed for cervical sprain; bilateral shoulder sprain; left knee contusion; thoracic sprain; and left shoulder sprain.
(¶ 4} Relator supported his application for PTD compensation with the July 30, 2010 report of M.P. Patel, M.D., relator's treating physician. In his report, Dr. Patel noted that relator appeared "fatigued, depressed and tired" and exhibited "lapses in memory and poor concentration." (Stipulated Record ("Stip. R."), 20.) Dr. Patel also noted that relator had tenderness, tightness and pain throughout his head, neck, spine, shoulder, hip and knee. Dr. Patel identified the allowed conditions as "lumbosacral sprain, contusion left hip, lumbar disc degen., protruding disc L5-S1, spondylolisthesis, neurotic depression, contusion scalp (head), sprain of neck, sprain thoracic spine, sprain shoulder/arm bilateral, contusion chest wall, contusion abdominal wall, [and] contusion left knee, " and opined that relator was "permanently and totally disabled from engaging into any gainful employment." (Stip. R., 22.)
(¶ 5} At the commission's request, a psychologist, Dr. Raymond Richetta, Ph.D., examined relator for the allowed dysthymic disorder. In his report, Dr. Richetta observed that relator suffered from mood swings, could not carry out simple instructions, and could not "cope consistently with the general public." (Stip. R., 33.) Dr. Richetta also completed a form titled "Occupational Activity Assessment Mental & Behavioral Examination." (Stip. R., 34.) On the form, Dr. Richetta checked a pre-printed statement indicating that relator was "capable of work with the limitation(s) / modification(s) noted below." (Stip. R., 34.) Below the pre-printed statement, however, Dr. Richetta stated that relator "could not, from a psychological perspective alone, manage sustained remunerative employment." (Stip. R., 34.)
(¶ 6} Regarding the remaining allowed physical conditions, the commission had relator examined by Elizabeth Mease, M.D. Dr. Mease determined that relator had reached maximum medical improvement on each of the allowed physical conditions, and concluded that relator had a combined whole person impairment of 24 percent. Dr. Mease opined that relator could perform sedentary physical demand activities.
(¶ 7} Following a hearing, a staff hearing officer ("SHO") issued an order denying relator's PTD application. The SHO found Dr. Patel's report unreliable, as the report contained a diagnosis for non-allowed conditions and conflicted with statements Dr. Patel made in a later report. The SHO also found Dr. Richetta's report unreliable, as it contained an inherent conflict. Relying on Dr. Mease's report, the SHO concluded relator was not permanently and totally disabled.
(¶ 8} The commission sua sponte decided to exercise its continuing jurisdiction over the SHO's order. Following another hearing on the application, the commission denied relator's PTD application. The commission concluded that the internal inconsistency in Dr. Richetta's report rendered the report unreliable and unpersuasive. Relying on Dr. Mease's report, the commission found that relator was "physically capable of performing sedentary work, " noting that the record contained "no reliable medical evidence that documents a work restriction related to the allowed psychological condition." (Stip. R., 120.)
(¶ 9} Under its conclusions of law, the magistrate concluded that, while the commission acted within its discretion to reject Dr. Richetta's report, after rejecting the report, the record before the commission did not contain competent medical evidence regarding the dysthymic disorder. As such, the magistrate concluded that the commission failed to consider all the allowed conditions before denying relator's application for PTD compensation. The magistrate noted that, where the commission "finds no medical evidence upon which it can rely to meet its duty to consider all the allowed conditions of the claim, it cannot, in effect, refuse to obtain further medical evidence upon which it can rely to meet its duty to consider all the allowed conditions of the claim." (Magistrate's decision, 11-12.)
(¶ 10} The commission asserts the following objection to the magistrate's decision:
The Magistrate erred in finding that the commission failed to consider all of the allowed conditions or failed to schedule appropriate medical examinations.
(¶ 11} The commission asserts that, because relator supported his PTD application with only the report of Dr. Patel, relator failed to carry his burden to prove that he was permanently and totally disabled as a result of the allowed conditions. Because relator did not submit a psychologist's report in support of his PTD application, the commission asserts that if it erred "it was in hearing the PTD application at all." (Commission's objection, 10.) The commission further contends that, as it discussed and rejected Dr. Richetta's report, it adequately considered relator's allowed psychological condition. Finally, the commission asserts that "[t]here is no code or rule that requires the commission to send a claimant for a second examination if the report from the first expert is found to be inconsistent." (Commission's objection, 13.)
(¶ 12} " 'Permanent total disability' means the inability to perform sustained remunerative employment due to the allowed conditions in the claim." Ohio Adm.Code 4121-3-34(B)(1). The injured worker has the burden of proof "to establish a case of permanent and total disability" by a preponderance of the evidence. Ohio Adm.Code 4121-3-34(D)(3)(a).
(¶ 13} When an injured worker files an application for PTD, the application must be "accompanied by medical evidence from a physician, or a psychologist or a psychiatric specialist in a claim that has been allowed for a psychiatric or psychological condition, that supports an application for permanent total disability compensation." Ohio Adm.Code 4121-3-34(C)(1). "If an application for permanent total disability compensation is filed that does not meet the filing requirements of this rule, or if proper medical evidence is not identified within the claim file, the application shall be dismissed without hearing." Ohio Adm.Code 4121-3-34(C)(1).
(¶ 14} Although relator did not file a psychologist's report with his PTD application, the commission did not dismiss the application without a hearing. Rather, the commission processed the application under its rules. As such, whether or not the commission could have dismissed the PTD application ab initio is not an issue before this court. See State ex rel. Lear Operations Corp. v. Crispen, 10th Dist. No. 07AP-428, 2008-Ohio-5256, ¶ 43; State ex rel. Koza v. Indus. Comm., 10th Dist. No. 02AP-903, 2003-Ohio-3434, ¶ 120.
(¶ 15} The commission properly processed relator's PTD application by scheduling relator for appropriate medical examinations for both the physical and psychological conditions in his industrial claims. See Ohio Adm.Code 4121-3-34(C)(5)(a)(iii) (following the filing of the application for PTD, the claims examiner must "[s]chedule appropriate medical examination(s) by physician(s) to be selected by the commission"). Moreover, the commission also acted within its authority when it rejected Dr's. Patel and Richetta's reports. See State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20-21 (1987) (the commission has the exclusive authority to evaluate the weight and credibility of the evidence); State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445, 449 (1994); State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649, 657 (1994); State ex rel. Ray v. Indus. Comm., 10th Dist. No. 03AP-1189, 2004-Ohio-6064, ¶ 3, citing State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993).
(¶ 16} While the commission appropriately exercised its authority to reject Dr's. Patel and Dr. Richetta's reports, the effect of the commission's action was to render the record devoid of any competent medical evidence regarding relator's allowed dysthymic disorder. In determining whether to award PTD compensation, the commission must consider every allowed condition. State ex rel. Johnson v. Indus. Comm., 40 Ohio St.3d 339, 340 (1988). Although the commission asserts that it considered the psychological condition when it rejected Dr. Richetta's report, without medical evidence the commission could not have considered the effect the dysthymic disorder had on relator's ability to perform sustained remunerative employment. See Ohio Adm.Code 4121-3-34(D)(3)(i) (where a claim includes an allowed psychiatric condition "and the injured worker retains the physical ability to engage in some sustained remunerative employment, the adjudicator shall consider whether the allowed psychiatric condition in combination with the allowed physical condition prevents the injured worker from engaging in sustained remunerative employment").
(¶ 17} It is well-settled that the commission must rely upon medical evidence in order to determine disability, as neither the commission nor its hearing officers have medical expertise. State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 81 Ohio St.3d 56, 58 (1998). Because the commission rejected the medical evidence regarding the psychological condition, the extent of relator's dysthymic disorder has not been determined. Moreover, by concluding that relator was not permanently and totally disabled, the commission effectively determined that relator's dysthymic disorder was not work prohibitive, without any medical evidence to support such a determination. See State ex rel. Yancey v. Firestone Tire & Rubber Co., 77 Ohio St.3d 367, 370-71 (1997), citing Johnson at 340 (finding that "[t]o deny PTD in the face of two allowed conditions, the commission must have some evidence that neither condition renders the claimant unfit for sustained remunerative employment").
(¶ 18} The commission asserts that the magistrate incorrectly found that the commission was obligated to schedule relator for another psychological examination after it rejected Dr. Richetta's report. We do not agree with the commission's interpretation of the magistrate's decision. Compare Koza at ¶ 107, 125 (where the commission rejected "all the psychological/psychiatric medical opinions before it, " the magistrate held that "[t]he commission must schedule relator for a new medical examination when the report of its specialist is rejected and there is no other evidence that the commission finds persuasive").
(¶ 19} While the magistrate's decision indicates that the commission could have, and possibly should have, scheduled another psychological evaluation, it does not expressly state that the commission was obligated to do so here. The magistrate's decision is premised on the commission's failure to obtain additional medical evidence regarding relator's allowed psychological condition after it rejected all the medical evidence in the record relevant to the psychological condition.
(¶ 20} The commission must have medical evidence upon which it can rely to determine whether relator's dysthymic disorder, alone or in combination with the allowed physical conditions, renders relator permanently and totally disabled. Although the commission was not obligated to have Dr. Richetta reconsider his report, the commission was obligated to rely on medical evidence regarding each allowed condition. Accordingly, the commission may either schedule relator for a new psychological examination or allow Dr. Richetta to reconsider his report, so long as the record ultimately contains competent medical evidence upon which the commission may rely to evaluate whether relator's allowed conditions render him permanently and totally disabled.
(¶ 21} Following independent review, pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, 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 issue a writ of mandamus ordering the commission to vacate its order denying relator's application for PTD, to further process relator's PTD application consistent with this decision, and to enter a new order that adjudicates the PTD application.
Objection overruled; writ granted.
TYACK and BROWN, JJ., concur.
Rendered on November ...