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State ex rel. Stallard Bales v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

March 16, 2017

State of Ohio ex rel. Bonnie S. Stallard Bales, Relator,
v.
Industrial Commission of Ohio and Mid Ohio Home Health Ltd. Caring Hearts of Mid-Ohio, Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Tarkowsky & Piper Co., L.PA., John Tarkowsky and Gregory J. Tarkowsky, for relator.

         On brief:

          Michael DeWine, Attorney General, and LaTawnda N. Moore, for respondent, Industrial Commission of Ohio.

          DECISION

          BRUNNER, J.

         {¶ 1} Relator, Bonnie S. Stallard Bales ("Stallard Bales"), has filed this original action for a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the commission"), to vacate its order denying her permanent total disability ("PTD") benefits and to grant her PTD benefits, or to return the claim to the commission for rehearing. Stallard Bales also requests costs, attorney fees, and other relief as the court deems proper.

         {¶ 2} This Court referred the action to a magistrate pursuant to Civ.R. 53(C) and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, and recommended that this Court deny Stallard Bales' request for a writ of mandamus.

         {¶ 3} On December 3, 2015, Stallard Bales filed an objection to the magistrate's decision. The commission filed its memorandum contra Stallard Bales' objection on December 21, 2015.

         {¶ 4} After reviewing the magistrate's decision, conducting an independent review of the record pursuant to Civ.R. 53, and giving due consideration to Stallard Bales' objection, we overrule Stallard Bales' objection and adopt the magistrate's findings of fact and conclusions of law as our own.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 5} Stallard Bales sustained a work injury on October 13, 2008, when she lifted a patient in her capacity as a home health aide while employed by Mid Ohio Home Health Ltd. Caring Hearts of Mid-Ohio. Her workers' compensation claim was allowed for sprain thoracic region; sprain lumbar region; sprain or strain right trapezius muscle; and substantial aggravation of pre-existing degenerative disc disease at the L4-S1 levels. The record indicates that Stallard Bales has not had any surgery for her allowed conditions and she is not a candidate for surgery. She has been awarded a 12 percent PPD award. Stallard Bales is currently 59 years old. She holds two Bachelor of Science degrees, one in education and the other in nursing, and has worked as a teacher and as a registered nurse. Stallard Bales last worked on January 9, 2009.

         {¶ 6} On October 16, 2013, Stallard Bales underwent a functional capacity evaluation ("FCE") performed by physical therapist Steven Rau to determine whether she could return to her former position of employment as a home health nurse. Rau issued a report dated October 16, 2013, in which he noted Stallard Bales' abilities and strengths at that time. Rau also completed an FCE grid as part of his report. The FCE grid indicated that during the course of a normal eight-hour work day, Stallard Bales could occasionally (6-33 percent of the time) front carry 10 pounds, short carry 16 pounds, and right/left carry 10 pounds. Rau's report also indicated that Stallard Bales could perform both standing and sitting work, limiting standing to 10 continuous minutes and sitting to 20 continuous minutes.

         {¶ 7} On September 26, 2014, Stallard Bales filed an application for total disability for her allowed conditions. In support of her application, she filed the March 4, 2014 report of her treating physician, Michael R. Viau, M.D., who opined that Stallard Bales was permanently totally disabled "in regards to all sustained remunerative employment as a consequence of the allowed conditions in her claim only." (June 22, 2015Stipulation of Evidence at 54.) Dr. Viau opined further that Stallard Bales was not a surgical candidate. Stallard Bales also filed Dr. Viau's report of April 23, 2014, which indicated his plan to request "a C-9 for vocational rehab to further verify whether or not she is employable in any fashion." Id. at 55.

         {¶ 8} Stallard Bales also submitted the August 5, 2014 vocational report by Amy L. Corrigan, M.Ed. CRC. Corrigan noted referral information from Richard Ray, M.D., who opined that Stallard Bales had not reached maximum medical improvement ("MMI"). Corrigan also noted the FCE completed by Rau. Corrigan's report noted that Stallard Bales had skills that would transfer to sedentary employment and identified approximately 20 jobs within Stallard Bales' abilities. Corrigan's report listed barriers and assets to Stallard Bales' employment. No individualized rehabilitation plan was written, because the comprehensive vocational evaluation indicated that vocational services were not a feasible option for Stallard Bales; her vocational rehabilitation case file was thus closed. However, nothing in Corrigan's report indicated that Stallard Bales lacked the ability to be retrained for appropriate sedentary work.

         {¶ 9} On November 19, 2014, Jon A. Elias, M.D., examined Stallard Bales. In a December 3, 2014 medical report, Dr. Elias identified Stallard Bales' allowed conditions and noted the history of her claim and her self-reported complaints reaching the following conclusions:

1. If you believe the injured worker is still at MMI, * * * provide the estimated percentage of whole person impairment arising from each allowed condition. * * * If there is no impairment for an allowed condition, indicate zero percent.
In my opinion, the claimant remains at maximum medical improvement for the allowed conditions in this claim.
In regards to the diagnosis of sprain or strain right trapezius muscle, there is no evidence of impairment from this condition at the time of this examination, no abnormalities were found with no spasm and no pain on palpation and no guarding. Therefore, this would be 0% whole person impairment.
Concerning sprain thoracic region, * * * her impairment is a DRE Category I for 0% whole person impairment.
Concerning the diagnosis of sprain lumbar region, substantial aggravation of preexisting degenerative disc disease at L4-S1 level, * * * this was found to be a DRE Category II and an 8% whole person impairment is awarded.
Using the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition, the entire whole person impairment awarded for the allowed condition is 8%.
2. If you believe the injured worker is still at MMI, complete the enclosed Physical Strength Rating. In your narrative report, provide a discussion setting forth physical limitations resulting from the allowed condition(s).
I believe [Stallard Bales] can perform sedentary type of work. Her physical examination findings, as well as the prior objective diagnostic findings indicate a low back condition that should allow a minimum of sedentary work. The fact that she is on medications further makes me feel that sedentary work should be the only work that she be performing at this time. I would give no other limitations.

Id. at 82-83.

         {¶ 10} On March 2, 2015, a Staff Hearing Officer ("SHO") conducted a hearing on Stallard Bales' PTD application. The SHO denied Stallard Bales' request for PTD benefits in an order dated March 10, 2015. The SHO's decision was based on Dr. Elias' medical report and the SHO's findings that Stallard Bales' educational qualifications and other characteristics were positive factors to re-employment:

Based on the report of Dr. Elias, which is found persuasive, the [SHO] finds that [Stallard Bales] retains the physical functional capacity to perform sedentary work. When [Stallard Bales'] level of injury-related medical impairment is considered in conjunction with her non-medical disability factors, the [SHO] finds [Stallard Bales] has the capacity to perform sustained remunerative employment of a sedentary nature.
The [SHO] finds that [Stallard Bales'] current age of 57 is considered a neutral factor to re-employment, i.e., is not considered either positively or negatively. [Stallard Bales'] education is a positive factor to re-employment. The [SHO] notes that [Stallard Bales] has a Bachelor of Science degree in Education. Following attainment of that degree, [Stallard Bales] went on to participate in an accelerated nursing program in which she obtained her Bachelor of Science in Nursing degree. Per the information contained in the claim file, [Stallard Bales] graduated second in her class in the accelerated nursing program. The [SHO] finds that a college degree implies an above-average level of intelligence that would facilitate the acquisition of new skills that are conducive to sedentary work. It also suggests a measure of commitment, hard work, and discipline that prospective employers value. [Stallard Bales] had a vocational evaluation performed by Melessa Hunt, Ph.D. dated 01/05/2015. Although the [SHO] is not persuaded by the conclusion of Dr. Hunt that [Stallard Bales] is permanently and totally disabled from all sustained remunerative employment, the [SHO] does note that Dr. Hunt performed IQ testing. Dr. Hunt noted that [Stallard Bales] scored in the upper range of high average intellectual ability and Dr. Hunt noted that [Stallard Bales'] level of cognitive ability is a vocational strength, posing no significant barrier to employment. The [SHO] notes that [Stallard Bales'] past work history has involved work as a waitress, substitute teacher, and registered nurse.

Id. at 92.

         {¶ 11} The SHO order also noted the limited aspect of the FCE performed by physical therapist Steven Rau, stating in pertinent part as follows:

The last position performed by [Stallard Bales] was that of a registered nurse doing home health care. The [SHO] acknowledges that this job cannot be performed due to [Stallard Bales'] limitation of sedentary work. The [SHO] notes [Stallard Bales] had a [FCE] performed by Steven Rau, Physical Therapist, on 10/16/2013. The conclusion of Therapist Rau in that report was that [Stallard Bales] could not perform her former position of employment as a home health registered nurse. Given [Stallard Bales'] neutral age factor, as well as her high level of intelligence, and her proven ability to learn as noted by her high school diploma, and two separate bachelor degrees, the [SHO] finds that [Stallard Bales] would have the ability to perform sedentary work as [Stallard Bales] has the intellectual ability to be retrained.

Id.

         {¶ 12} Stallard Bales filed a request for reconsideration with the commission on March 20, 2015. The commission denied her request by order mailed April 4, 2015. Stallard Bales then filed the instant complaint in mandamus on April 17, 2015. The magistrate's decision was rendered on November 24, 2015, and thereby, the magistrate recommended that this Court deny Stallard Bales' request for a writ of mandamus.

         II.OBJECTION TO THE MAGISTRATE'S DECISION

         {¶ 13} Stallard Bales presents the following objection to the magistrate's decision:

THE MAGISTRATE ERRED IN CONCLUDING THERAPIST RAU'S REPORT DID NOT CONTAIN RESTRICTIONS INCONSISTENT WITH THE DEFINITION OF SEDENTARY EMPLOYMENT.

         III. LAW ...


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