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State ex rel. Moffitt v. Industrial Commission of Ohio & Enterprise Roofing & Sheet Metal Co.

Court of Appeals of Ohio, Tenth District

August 31, 2017

State ex rel. Milton Moffitt, Relator,
v.
Industrial Commission of Ohio and Enterprise Roofing & Sheet Metal Company, Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

          On brief: Law Office of Stanley R. Jurus, and Robert B. Bumgarner, for relator. Argued: Robert B. Bumgarner.

          On brief: Michael DeWine, Attorney General, and Amanda B. Brown, for respondent Industrial Commission of Ohio. Argued: Amanda B. Brown.

          DECISION

          BROWN, J.

         {¶ 1} Relator, Milton Moffitt, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its October 22, 2015 order that grants the August 7, 2015 motion of the administrator of the Ohio Bureau of Workers Compensation ("bureau") for the exercise of continuing jurisdiction over the July 14, 2015 order of its staff hearing officer ("SHO") that awarded permanent total disability ("PTD") compensation to relator, and to enter an order that denies the administrator's motion and reinstates the July 14, 2015 order of the SHO awarding PTD compensation.

          {¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R. 53 and Loc.R. 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 relator's writ of mandamus. Relator has filed two objections to that decision, and we will address them together.

         {¶ 3} Relator argues in his first objection that the magistrate erred when he found that the SHO's misstatement suggests a conclusion that is inconsistent with PTD, as it is instead simply one of numerous findings made by the SHO in her order. As part of the factual findings in the SHO's order, the SHO stated that relator "continues" to work up to 500 hours per year in his capacity as a roofer. Relator contends that this information came from the December 5, 2013 office note of Dr. David Seymour; thus, relator asserts, the SHO's finding should have said "[a]s of December 5, 2013, " relator "continued" to work 500 hours per year. (Relator's brief at 11.) The commission used the SHO's finding to conclude that the SHO's award of PTD was not consistent with PTD because relator was continuing to work 500 hours per year. Relator terms the SHO's factual finding as a dictation error and an inadvertent and harmless misstatement.

         {¶ 4} Relator argues in his second objection that the magistrate erred when he found that the commission did not abuse its discretion in exercising continuing jurisdiction as the magistrate did not address the issue of whether the SHO's dictation error was an inadvertent, harmless, and irrelevant misstatement that was not grounds for continuing jurisdiction. Relator points to several decisions from this court in which we have found that inadvertent, harmless, and irrelevant misstatements are not grounds for continuing jurisdiction or a mandamus action.

         {¶ 5} We disagree with relator's portrayal of the SHO's finding as a mere dictation error or inadvertent and harmless statement. The magistrate here found that the SHO's order "strongly suggests a conclusion that is inconsistent with permanent total disability." (Mag. Decision at ¶ 51.) We cannot find the commission abused its discretion in finding the SHO's statement that relator "continues" to work 500 hours per year is inconsistent with a finding of PTD; thus, its exercising of continuing jurisdiction was proper. Read strictly as written, the SHO's finding and the definition of PTD clearly conflict. There is simply no evidence in the order or record that this finding was inadvertent or a mere clerical error. Furthermore, with regard to the cases cited by relator that involved misstatements of fact by an SHO, those cases are inapposite to the facts here. In those cases, the SHO's misstatements were either not independently preclusive of PTD or irrelevant to the ultimate determination of PTD. To the contrary, in the present case, a claimant who works 500 hours per year cannot be said to be permanently and totally disabled by definition. For these reasons, we find relator's arguments without merit and overrule his objections.

         {¶ 6} Accordingly, after an examination of the magistrate's decision, an independent review of the record, pursuant to Civ.R. 53, and due consideration of relator's objections, we overrule the objections. We adopt the magistrate's findings of facts and conclusions of law. Relator's request for a writ of mandamus is denied.

         Objections overruled; writ of mandamus denied.

          DORRIAN, J., concurs. LUPER SCHUSTER, J., dissents.

         APPENDIX

         Rendered on March 9, 2017

         Law Office of Stanley R. Jurus, and Robert B. Bumgarner, for relator.

         Michael DeWine, Attorney General, and Amanda B. Brown, for respondent Industrial Commission of Ohio.

         MAGISTRATE'S DECISION

          KENNETH W. MACKE, MAGISTRATE

         {¶ 7} In this original action, relator, Milton Moffitt, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its October 22, 2015 order that grants the August 7, 2015 motion of the administrator of the Ohio Bureau of Workers' Compensation ("bureau") for the exercise of continuing jurisdiction over the July 14, 2015 order of its staff hearing officer ("SHO") that awarded permanent total disability ("PTD") compensation to relator, and to enter an order that denies the administrator's motion and reinstates the July 14, 2015 order of the SHO awarding PTD compensation.

          Findings of Fact:

         {¶ 8} 1. On May 27, 1997, relator injured his lower back while employed as a roofer for respondent, Enterprise Roofing & Sheet Metal Company, a state-fund employer. The injury occurred when relator endeavored to move a heavy pail of rubber.

         {¶ 9} 2. The industrial claim (No. 97-422974) is allowed for "herniated nucleus pulposus L2-3 with bulging disc at L4-S1 and L3-4 radiculopathy."

         {¶ 10} 3. The record shows that, as early as December 18, 2012, relator was treated for his lower back injury by orthopedist David S. Seymour, M.D. On that date, in an office note, Dr. Seymour wrote:

Milton is doing relatively well. He works as a roofer, and the techniques they use require warmer temperatures, so he has been laid off. While this has occurred, his back pain has improved significantly. He has had improvement in what had been increasing exacerbation of left SI area, buttocks, posterolateral thigh discomfort, nothing below the knee.

         {¶ 11} 4. On August 22, 2013, relator again saw Dr. Seymour who, in an office note, states:

Milton is doing relatively well. He continues to work out on a regular basis and use his inversion table. He has been able to, in a sense, retire from his roofing job but he still works up to 500 hours. He has the option to work when he can and he enjoys working. He is not having radiating discomfort.

         {¶ 12} 5. On December 5, 2013, relator again saw Dr. Seymour who, in an office note, states:

Milton continues to manage his lumbar degenerative disc disease and back discomfort. He is retired but continues to work at roofing jobs up to his 500 hour maximum. He has been having some increased discomfort at night, particular in the left hip but not radiating down into his leg. He can find a position of comfort if he rolls about somewhat.

         {¶ 13} 6. On March 25, 2014, relator again saw Dr. Seymour who, in his office note, states:

He is having lower back discomfort radiating into his left buttocks, thigh, and into the lower leg. It has been progressively more severe and harder for him to work. His walking distance has decreased.

         {¶ 14} 7. On May 27, 2014, relator again saw Dr. Seymour who, in an office note, states:

Milton has had much more back pain then the usual radiating into his left greater than right buttocks and lower leg. His walking ability continues to decline. He has a feeling of weakness in his legs and he had a great deal of difficulty getting through the zoo [sic]. No change in bowel or bladder function.
On physical examination, he continues to have excellent strength and deep tendon reflexes. He has pain behavior when standing, which he did not have previously. He continues with a general flat affect.
RADIOLOGY REPORT Review of his MRI shows multilevel degenerative disc disease, facet arthropathy, and spinal ...

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