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State ex rel. Reichley v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

May 23, 2017

State of Ohio ex rel. James R. Reichley, Relator,
v.
Industrial Commission of Ohio and Cooper Tire & Rubber Co., Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

          On brief: Law Offices of Thomas Tootle, and Thomas Tootle, for relator.

          On brief: Michael DeWine, Attorney General, and Shaun Omen, for respondent Industrial Commission of Ohio.

          On brief: Eastman & Smith Ltd., Richard L. Johnson, and Lindsey K. Ohlman, for respondent Cooper Tire & Rubber Company.

          DECISION

          DORRIAN, J.

         {¶ 1} Relator, James R. Reichley, has filed an original action requesting a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate the February 19, 2013 order of its staff hearing officer ("SHO") that denied his first application for permanent total disability ("PTD") compensation ("February 2013 order") and the January 27, 2016 order of its SHO that denied his second application for PTD compensation ("January 2016 order"), and to enter an order that eliminates the finding that relator voluntarily abandoned the workforce and adjudicates the merits of relator's PTD application.

         {¶ 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 issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommends this court deny the request for a writ of mandamus.

         {¶ 3} Relator has filed the following two objections to the magistrate's decision:

[I.] The record fails to contain "some evidence" to support a finding of voluntary abandonment of the work-force (and therefore precluding an award of permanent total disability). The Magistrate's conclusion of law finding otherwise was in error.
[II.] Evidence demonstrating Relator's two week return-to-work was sufficient to establish a re-entry to the work-force. The Magistrate's conclusion of law finding otherwise was in error.

         {¶ 4} The facts of this case, as set forth in the magistrate's decision, indicate that relator suffered a severe injury on March 4, 1988, while employed by respondent Cooper Tire & Rubber Company ("Cooper Tire"). Relator's claim was allowed for multiple conditions, including partial paraplegia. Despite these injuries, in June 1989, relator returned to work as a supervisor at Cooper Tire, and remained in that position until October 30, 2011. Relator's post-injury work history of more than 22 years certainly demonstrates his willingness to remain in the workforce. After leaving employment with Cooper Tire, relator filed a first application for PTD compensation on August 14, 2012. He subsequently filed a second application for PTD compensation on December 23, 2014.

         {¶ 5} As explained in the magistrate's decision, the February 2013 order denied relator's first PTD application on alternative bases: (1) that relator voluntarily abandoned the workforce, and (2) that relator retained the ability to perform sustained remunerative employment. The latter conclusion was based on the reports of Drs. Donato Borrillo and Gerald Steinman, which constitute some evidence to support the SHO's finding. Similarly, the January 2016 order denied relator's second PTD application on alternative bases: (1) that relator voluntarily abandoned the workforce, and (2) that relator had not reached maximum medical improvement for all of the allowed conditions in his claim. The latter conclusion was based on the reports of Drs. Franklin Kindl and Kurt Kuhlman, which constitute some evidence to support the SHO's finding.

         {¶ 6} Relator's mandamus complaint and objections to the magistrate's decision only challenge the findings and conclusions with respect to voluntary abandonment of the workforce. Relator has not challenged the alternative basis for the February 2013 order or the January 2016 order. "If it can be said that relator has challenged only one of two bases [for denial of a PTD application], he cannot show entitlement to a writ of mandamus if the basis he has failed to challenge supports the commission's decision." State ex rel. Terry v. Anderson's, Inc., 10th Dist. No. 13AP-652, 2014-Ohio-4169, ¶ 57. See also State ex rel. Davis-Hodges v. Indus. Comm., 10th Dist. No. 10AP-183, 2010-Ohio-5871, ¶ 41 ("Where the commission provides an alternative rationale for its determination which withstands the scrutiny of mandamus review and provides an independent basis for the commission's decision, the fact that the commission incorrectly applied the law in a separate portion of the order does not constitute grounds for the granting of a writ of mandamus."). Accordingly, we need not reach the issue of voluntary abandonment; the alternative bases in each order support the commission's decision and relator has failed to challenge those conclusions.

         {¶ 7} Upon review of the magistrate's decision, an independent review of the record, and due consideration of relator's objections, we find the magistrate has properly determined the pertinent facts. Moreover, we find that each order that relator seeks to have vacated contained an alternative basis for the commission's decision, and that relator has failed to challenge the alternative bases contained in those orders. Therefore, relator is not entitled to a writ of mandamus and we overrule relator's objections to the magistrate's decision. We adopt the magistrate's findings of fact as our own; because we need not reach the issue of voluntary abandonment of the workforce, we do not adopt the magistrate's conclusions of law. Accordingly, the requested writ of mandamus is hereby denied.

         Objections overruled; writ of mandamus denied.

          TYACK, P.J., and LUPER SCHUSTER, J., concur.

         APPENDIX

         Rendered on December 30, 2016

         IN MANDAMUS

         MAGISTRATE'S DECISION NUNC PRO TUNC [1]

          KENNETH W. MACKE MAGISTRATE

         {¶ 8} In this original action, relator, James R. Reichley, requests a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission") to vacate the February 19, 2013 order of its staff hearing officer ("SHO") that denied his first application for permanent total disability ("PTD") compensation based on a finding that relator voluntarily abandoned the workforce, and to enter an order that eliminates the finding that relator voluntarily abandoned the workforce.

         {¶ 9} Furthermore, relator requests that the writ order the commission to vacate the January 27, 2016 order of its SHO that denies his second application for PTD compensation based on a finding that he voluntarily abandoned the workforce, and to enter an order that eliminates the finding that he voluntarily abandoned the workforce and adjudicates the merits of the PTD application.

         Findings of Fact:

         {¶ 10} 1. On March 4, 1988, relator was severely injured while employed as a "Mobile Equipment Servicer" for respondent Cooper Tire & Rubber, Co. ("Cooper Tire"), a self-insured employer under Ohio's workers' compensation laws. On that date, while working on tread tray wheels, the tread tray rolled over onto relator's body pinning him to the floor.

         {¶ 11} 2. The industrial claim (No. 968146-22) was initially allowed for:

Burst fracture L3 with incomplete paraplegia; compound fracture right tibia and fibula; fracture of right calcaneus; laceration left forehead; ulcer of heel and midfoot; claw foot, acquired; left wrist scaphoid contusion.

         {¶ 12} 3. Following some recovery from the injury, relator was able to ambulate with the use of bilateral leg braces and forearm crutches.

         {¶ 13} 4. In June 1989, relator returned to work as a supervisor at Cooper Tire. He maintained his employment as a supervisor until he left his employment with Cooper Tire on October 30, 2011.

         {¶ 14} 5. Relator applied for social security disability benefits. He began receiving the benefits in April 2012.

         {¶ 15} 6. On March 29, 2012, attending physician Stephen J. Freshwater, M.D., wrote:

James Reichley had a work related burst fracture of L3 in March 1988 which resulted in severe cauda equina compression and paraplegia. He has had increased pain in his buttocks and legs beginning in August last year. Narcotic pain medications were not effective for controlling his pain. He had a CT of the lumbar spine in September 2011 showing diffuse circumferential and internal dense calcifications of the thecal sac between L3 and S2. His films were evaluated by Jason Schroeder, M.D. who did not believe there was any surgical procedure that could begin to help the changes present. He has been seeing Thomas Kindl, M.D. at Midwest Pain Treatment Center. He's had several different injections which have not made much difference with his pain. He is worse if he has to stand for more than a few minutes at a time, walk more that 50 feet, or sit for a prolonged period of time. Given this progression of his problem, I do not believe that he can return to work at Cooper Tire in his former capacity or in any available job with his current limitations. I believe that he qualifies for a total permanent disability.

         {¶ 16} 7. On May 10, 2012, Thomas Kindl, M.D., relator's pain management physician, wrote:

[T]o a reasonable degree of medical certainty, I do not believe that Mr. Reichley is a candidate to return to work at his former employer in any reasonable capacity, given his functional and medical limitations. I believe that his condition is unlikely to change over the following 12-month period of thereafter. I believe he therefore qualifies for total permanent disability.

         {¶ 17} 8. On August 14, 2012, relator filed his first PTD application. In support, relator submitted the March 29, 2012 report from Dr. Freshwater.

         {¶ 18} 9. On the PTD application, relator indicated that he was currently receiving social security disability benefits which started in April 2012.

         {¶ 19} 10. On October 3, 2012, at the request of Cooper Tire, relator was examined by neurologist Gerald S. Steiman, M.D. In his five-page narrative report dated October 7, 2012, Dr. Steiman opined:

Mr. Reichley's history, medical record review, and physical exam provide credible evidence he is now at the point where he is unable to perform his prior job activity without restrictions. Clearly, he is able to return to a sedentary job activity but I do not believe he would be able to perform three hours of walking and two hours of standing. A job activity should be one in which he sits most of the day with intermittent and occasional standing and short distance walking. For longer distances a cart would be necessary.

         {¶ 20} 11. On November 6, 2012, at the commission's request, relator was examined by Donato J. Borrillo, M.D. In his seven-page narrative report dated November 8, 2012, Dr. Borrillo opined:

Mr. Reichley is extremely motivated and admirably ambitious, having returned to work after a significant traumatic injury and having retired in 2011.
Notwithstanding his retirement from the workforce, Mr. Reichley is capable of sedentary duty. His lumbar condition prevents [him] from lifting greater than this amount, and he requires ADA access for his Loftstrand crutch use and AFO use. Furthermore, because of his back injury and incomplete paraplegia, he is unable to bend, crawl, climb, walk on uneven surfaces, or kneel safely. He requires a sit or stand option.

         {¶ 21} On a form captioned "Physical Strength Rating, " Dr. Borrillo indicated by his mark that relator is capable of "sedentary work."

         {¶ 22} Under "[f]urther limitations, " in the space provided, Dr. Borrillo wrote in his own hand: "ADA access [with] crutch use."

         {¶ 23} 12. At the request of Cooper Tire, Al Walker, a certified vocational evaluation specialist, prepared a document captioned "Vocational Assessment and Transferrable Skills Analysis Report."

         {¶ 24} In his 16-page report dated January 14, 2013, Walker concluded:

In summary, Mr. Reichley's demonstrated work history and his projected physical limitations, directly related to his allowed conditions of his workers' compensation claims, do allow for selective job placement. His work history has been skilled demonstrating his ability to learn and function adequately at higher levels of vocational competency. It is important to understand that this vocational evaluation can only show if an individual has sufficient residual physical and mental capacities to meet the demands of particular jobs. It is not possible to factor in motivation or the willingness of an individual to do what is necessary to overcome the barriers they face. Dr. Borrillo and Dr. Steiman both state that Mr. Reichley is capable of full time physical work activity. No psychological limitations were identified. Taking into consideration the medical examinations, transferable skills analysis and labor market analysis there are numerous jobs for which Mr. Reichley has demonstrated the aptitudes and abilities, general educational development and physical capabilities to perform.

         {¶ 25} 13. On February 19, 2013, an SHO heard relator's first PTD application. The hearing was recorded and transcribed for the record.

         {¶ 26} 14. At the hearing, the following exchange occurred between the hearing officer and relator:

Q. There is no doubt it was a significant injury; after the injury you were able to go back to work and did work for a number of years?
A. I did.
Q. With Cooper, and you quit or left work what year?
A. Well, I -
Q. Left the work force entirely? A. For the entirety, 2011.
Q. 2011, okay.
A. And the beginning of November of 2011 from severe back pain, and so I was off going to pain management. He gave me some injections, and then it seemed like I had to get more injections into the back trying to solve that problem. My leg pain had worsened.
Q. And that was Dr. Kindl?
A. Dr. Kindl. I was to the point of not being able to sleep. It used to be I could go to sleep and it wouldn't bother me, and now it wakes me up.
Q. Okay. You got social security disability?
A. Yes.

(Tr. at 4-5.)

         {¶ 27} 15. At the hearing, the following exchange occurred between counsel for Cooper Tire and relator:

Q. Let me ask you, would you be willing to do vocational retraining?
A. If he thinks, yeah, I guess, I could, but I guess I don't know whether that's going to gain anything, because by the time you go to vocational instructions or whatever, if they send you to college, aren't we talking two to four years, and by that time I am going to be 57, 58 years old, just about into the social security retirement.
Q. But your response is that you would be willing to do vocational restraining [sic]?
A. If that is what it takes, I guess, but I think with my age and the distance, I am not so sure, I am kind of on the fence, yes and no. I don't know whether I would benefit from it, and I feel like by going to school or going to do anything like that, you are not going to get much more years out of me. And you're right about retirement, yes, I have made up my mind to retire, and also made up my mind years ago that I was going to start collecting social security at 62 and not wait until 70, because my dad died at 70 and I decided I was not going to do that. So by being on the fence of what you are saying, I am not sure whether it would be a good thing or a bad thing.

(Tr. at 30.)

         {¶ 28} 16. Following the February 19, 2013 hearing, the SHO issued an order denying the PTD application. The SHO's order provides alternative bases for denial of the PTD application: (1) that relator voluntarily abandoned the workforce and is thus ineligible for PTD compensation, and (2) that relator retains the ability to perform sustained remunerative employment. The SHO's order of February 19, 2013 explains:

There is a single claim in this application for permanent and total disability benefits. The injury occurred on 03/04/1988, at that time, the Injured Worker was employed as a mobile equipment servicer with the Employer of Record. At that time he was working on tread tray wheels and the tread tray rolled over the Injured Worker pinning him to the floor. He suffered a burst fracture at L3 with incomplete paraplegia. A compound fracture of the right tibia and fibula. A fracture of the right calcaneus. And a laceration of the left forehead. All of these conditions were certified by the Employer at the time of the original injury. Later, the Self-Insuring Employer certified ulcer of the heel and midfoot; claw foot, acquired and left wrist scaphoid contusion.
In spite of the significant injury, the Injured Worker was able to return to work with the Employer of Record in a different position, as a supervisor in June of 1989. He continued to work with the Employer of Record in this position until he left work on 10/30/2011. At that time, he took disability retirement.
Related to the allowed physical conditions within this claim, the Injured Worker was evaluated by an Industrial Commission Specialist, Donato Borrillo, M.D. Dr. Borrillo examined the Injured Worker on 11/06/2012, and in a report of 11/08/2012 Dr. Borrillo opined that Mr. Reichley is capable of working at sedentary duty. Dr. ...

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