State ex rel. Marlene Strayer, Relator,
Franklin County Commissioners and Industrial Commission of Ohio, Respondents.
IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION
Michael J. Muldoon, for relator.
Ron O'Brien, Prosecuting Attorney, and Joseph C. Mastrangelo, for respondent Franklin County Commissioners.
Michael DeWine, Attorney General, and John R. Smart, for respondent Industrial Commission of Ohio.
(¶1} Relator, Marlene Strayer, commenced this original action requesting a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying her application for permanent total disability ("PTD") compensation and to find that she is entitled to that compensation.
(¶2} Pursuant to Civ.R. 53(D) and Loc.R. 13(M), this matter was referred to a magistrate, who issued the appended decision, including findings of fact and conclusions of law. In his decision, the magistrate noted relator's argument that the commission incorrectly analyzed the nonmedical factors. In resolving that argument, the magistrate decided the commission did not abuse its discretion in determining that: (1) relator's age "does not prevent her from obtaining simple entry level sedentary jobs, " and relator's advanced age may be viewed in the context of her high school and some college education; (2) relator had "the ability to quickly learn the work skills of entry-level sedentary work, " even with a lack of transferable skills. (Magistrate's Decision at ¶ 39, 48.) The magistrate concluded that a lack of transferable skills does not mandate a PTD award. Accordingly, the magistrate determined the requested writ should be denied.
(¶3} Although relator does not specifically state the objection, relator generally contends the commission failed to appropriately assess the nonmedical disability factors, in particular relator's advanced age and lack of transferable skills. Relator asserts that the commission and the magistrate ignored probative evidence that nonmedical disability factors would preclude her from engaging in sustained remunerative employment. The crux of her argument is that the staff hearing officer ("SHO") found that relator had no transferable skills, yet erred in concluding that, in spite of the lack of transferable skills, relator can find employment. These are essentially the same arguments made to the magistrate.
(¶4} Relator points to the vocational opinion of Molly S. Williams, vocational consultant, wherein she stated in her May 7, 2012 report: "When all of the disability factors are correctly identified, stated, and considered: an individual unable to perform her customary past relevant work as a Bus Assistant * * *; an individual of advanced age * * * (age 55 or over); an individual with a high school education and above completed in the remote past (1956); an individual with no transferable skill(s); and an individual not expected to make a vocational adjustment to other work based upon the allowed physical conditions as assessed by [the commission's physician], it is obvious that the claimant is permanently and totally disabled."
(¶5} The SHO based his order on the medical report of James H. Rutherford, M.D., and the vocational report of Craig Johnston, Ph.D., vocational consultant. Regarding the nonmedical disability factors, the SHO found: (1) the injured worker's age does not prevent her from obtaining simple entry-level sedentary jobs; (2) the injured worker's education, high school and some college in the remote past, indicates that she possesses basic literacy/math skills such that she has the academic background to acquire the job skills necessary to perform entry-level sedentary work; (3) the injured worker's job history would not give her transferable skills for sedentary level work; however, the injured worker has at least average academic skills which would provide her with the ability to quickly learn the work skills of entry-level sedentary work. These findings are supported by Dr. Johnston's April 26, 2012 report, in which he opined that "[relator's] age of 76 years is a potential barrier to employment, but * * * in terms of entry-level work activity, it would not be work prohibitive[;] * * * claimant's possession of a high school diploma, by itself, would qualify her for most entry-level work activities[;] * * * [h]er reported work history supports the capacity for entry-level work[;] [c]ombined, her age, education, and work history support the capacity for entry-level work that is unskilled and semiskilled[;] * * * [b]ased on the totality of vocational factors, if she maintains a sedentary physical capacity, [relator] remains capable of sustained remunerative employment."
(¶6} "The commission alone shall be responsible for the evaluation of the weight and credibility of the evidence before it. This court's role in the review of mandamus actions challenging the Industrial Commission's decision as to the extent of disability * * * shall henceforth be limited to a determination as to whether there is some evidence in the record to support the commission's stated basis for its decision." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20-21 (1987). The commission had some evidence, in the form of Dr. Johnston's report, to support its findings. Furthermore, the commission evaluated the reports of Ms. Williams and Dr. Johnston and acted within its discretion to rely on Dr. Johnston's report over Ms. Williams' report. The commission did not abuse its discretion in assessing the nonmedical disability factors and in ultimately deciding that those factors support relator's ability to engage in sedentary work. Relator's objection is overruled.
(¶7} Following an 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 in it. In accordance with the magistrate's decision, we deny the requested writ of mandamus.
Objection overruled; writ denied.
TYACK and SADLER, JJ., concur.
Rendered on May 9, 2013
KENNETH W. MACKE, MAGISTRATE'S
(¶8} In this original action, relator, Marlene Strayer, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying her permanent total disability ("PTD") compensation, and to enter an order granting the compensation.
Findings of Fact:
(¶9} 1. Relator has four industrial claims arising from her employment as a bus assistant with respondent Franklin County Commissioners ("employer").
(¶10} 2. Her first industrial claim (No. 07-359201) arises from a May 16, 2007 injury. The claim is allowed for "sprain of neck; cervical radiculitis."
(¶11} 3. Her second industrial claim (No. 07-841154) arises from a June 29, 2007 injury. The claim is allowed for "sprain thoracic region."
(¶12} 4. Her third industrial claim (No. 08-838269) arises from a June 27, 2008 injury. The claim is allowed for "sprain left shoulder; contusion left shoulder."
(¶13} 5. Her fourth industrial claim (No. 09-821639) arises from a May 11, 2009 injury. The claim is allowed for "sprain of neck."
(¶14} 6. On October 6, 2011, at relator's own request, she was examined by chiropractor David M. Grunstein, D.C. In his five-page narrative report dated November 9, 2011, Dr. Grunstein opined:
OPINION: Based on the consultation and examination findings above stated and how these findings correlate with the A.M.A. Guides, it is my opinion that the above named presented in this office with a total whole person impairment of 44 percent whole person impairment, on the above stated date, for the above stated conditions. It is also my opinion that when taking into consideration the above stated information and the attached functional capacities evaluation that this person is permanently and totally disabled from partaking in any type of sustained gainful remunerative employment and should be considered permanently and totally disabled.
(¶15} 7. On December 8, 2011, relator filed an application for PTD compensation. In support, relator submitted the November 9, 2011 report of Dr. Grunstein.
(¶16} 8. On her application, relator indicates that her date of birth is October 21, 1935. Thus, relator was 76 years of age on ...