State of Ohio ex rel. Bonnie S. Stallard Bales, Relator,
Industrial Commission of Ohio and Mid Ohio Home Health Ltd. Caring Hearts of Mid-Ohio, Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Tarkowsky & Piper Co., L.PA., John Tarkowsky and Gregory
J. Tarkowsky, for relator.
Michael DeWine, Attorney General, and LaTawnda N. Moore, for
respondent, Industrial Commission of Ohio.
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.
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
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
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
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
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.
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
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.