The State ex rel. Alfredo Pacheco, Relator,
Industrial Commission of Ohio et al., Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Shapiro, Marnecheck & Palnik, and Matthew Palnik, for
Michael DeWine, Attorney General, and Eric J. Tarbox, for
respondent Industrial Commission of Ohio.
Ward LLP, Maris J. McNamara, Daniel A. Ward, and Michael C.
Nunnari, Jr., for respondent Alcoa.
1} In this original action, relator, Alfredo
Pacheco, requests a writ of mandamus ordering respondent,
Industrial Commission of Ohio ("the commission"),
to vacate the July 15, 2015 order of its staff hearing
officer ("SHO") that denied his request for a new
period of temporary total disability ("TTD")
compensation beginning April 22, 2013, and to enter an order
granting the compensation. At issue is whether Pacheco was
entitled to TTD for a period he asserts he was medically
unable to work the modified, light-duty job provided him by
respondent, Aluminum Co. of America/Cleveland Works
("Alcoa") after he was injured on the job.
2} Pacheco asserts that the commission abused its
discretion in denying his request for a new period of TTD
"based upon a finding that he did not show new and
changed circumstances" and he argued that this was
"contrary to fact and law." (Nov. 10, 2015 Compl.
at ¶ 22.) He further asserts the commission abused its
discretion when it denied his TTD application and refused his
appeal of the July 15, 2015 SHO order because the evidence in
the record established that he was medically unable to work
the light-duty job provided by Alcoa. Pacheco argues that the
modified, light-duty job was not provided in good faith, and
that, legally, he "is not required to show new and
changed circumstances to warrant a new period of temporary
total disability compensation." (Compl. at ¶ 25.)
Pacheco argues that his entitlement to the new period of TTD
compensation "has conclusively been established
factually and legally, " and the commission's denial
of his application "was erroneous as a matter of fact
and law." Id. at ¶ 26.
3} We referred this matter to a magistrate of this
Court 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.
The magistrate concluded the commission did not abuse its
discretion in denying Pacheco a new period of TTD
compensation and recommended that this Court deny
Pacheco's request for a writ of mandamus.
4} Pacheco timely filed objections to the findings
of facts and conclusions of law set forth in the
magistrate's decision. The commission and Alcoa timely
filed separate memoranda opposing Pacheco's objections,
asserting that the objections lacked merit, and that the
magistrate had decided the matter correctly.
5} Having examined the magistrate's decision,
conducted an independent review of the record pursuant to
Civ.R. 53, and undertaken due consideration of the
objections, we overrule Pacheco's first two objections
and adopt in part the magistrate's decision as our own.
We further sustain Pacheco's third objection and grant
mandamus ordering the commission to vacate its September 16,
2013 order denying reconsideration of its order of August 19,
2013 adopting the SHO's July 15, 2015 order. As a matter
of law, we find that there existed no evidence in the record
that the light-duty job provided to Pacheco was a legitimate
good-faith job under Ohio Adm.Code 4121-3-32(A)(6) and that
the commission abused its discretion in denying Pacheco a new
period of TTD.
FACTS AND PROCEDURAL BACKGROUND
6} We note at the outset that the underlying matter
was previously before this Court in an original mandamus
action that was assigned case No. 14AP-521. In that action,
Pacheco challenged an SHO order issued July 30, 2013 that
denied his request for a new period of TTD compensation
beginning April 22, 2013. On November 26, 2014, the parties
filed a Civ.R. 41(A) stipulation of dismissal. On December 2,
2014, this Court issued a journal entry of dismissal, which
accepted the parties' stipulation of dismissal.
7} On December 24, 2014, an SHO issued an order (1)
recognizing the stipulation of dismissal and the parties'
agreement, (2) vacating the SHO order dated July 30, 2013 and
mailed August 30, 2013, and (3) ordering a new hearing before
an SHO to determine whether Pacheco was entitled to the TTD
compensation "for the period of April 22, 2013 through
June 30, 2013, and to continue, if supported by medical
evidence, pursuant to R.C. 4123.56, as requested in his
Motion, dated April 30, 2013." (Mar. 4, 2016 Stipulation
of Evidence at 244.) The SHO's order of December 24, 2014
included this language:
The Staff Hearing Officer is to consider all relevant medical
evidence from the stipulated evidence in the case before the
10th District Court of Appeals, 14AP000521, and shall issue
an order which either grants or denies the requested
compensation, accurately cites the evidence which is the
basis for the decision and provides an explanation for the
decision in accordance with State ex rel. Mitchell v.
Robbins & Meyers, Inc., 6 Ohio St.3d 481 (1983) and
State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d
203 (1991). The Staff Hearing Officer's order will be
subject to the usual rights of administrative appeal as
provided in R.C. 4123.511.
8} Pacheco's case was reheard on July 15, 2015,
but by a different SHO.
9} It is undisputed that on May 22, 2012, Pacheco
suffered an industrial accident in the course of and arising
out of his employment with Alcoa, a self-insured employer
under Ohio's workers' compensation laws. Pacheco
having suffered an injury for which insurance coverage
existed, that being a "crushing injury right foot;
contusion right foot; complex regional pain syndrome right
ankle/foot, " Alcoa certified Pacheco's claim and
allowed a period of TTD compensation from May 22, 2012 to
March 30, 2013. (Emphasis omitted.) (Stipulation of Evidence
at 327; Compl. at ¶ 5.)
10} It also is undisputed that Pacheco's
treating physician, John Wilber, M.D., released him to return
to work with restrictions on April 1, 2013. Pacheco was also
examined by Dennis A. Glazer, M.D., whose restrictions were
similar to Dr. Wilber's but less specific as to what
Pacheco could do when he returned to work.
11} The record indicates Pacheco returned to work at
Alcoa beginning April 1, 2013, in a modified light-duty
position within the restrictions set by both Dr. Wilber and
Dr. Glazer. Nothing in the record documents that Pacheco
notified Alcoa upon or after his return to work through
Friday, April 19, 2013, that his physical condition affected
his ability to perform the light-duty tasks assigned him by
12} On Monday, April 22, 2013, Pacheco undertook
treatment with another physician, Todd Hochman, M.D., who
found Pacheco to be temporarily and totally disabled as of
that date. The record indicates that Pacheco did not return
to work at Alcoa after the previous Friday, April 19, 2013.
13} The SHO who conducted the July 15, 2015 hearing
issued an order denying Pacheco's request for the new
period of TTD compensation sought beginning April 22,
2013. The SHO found that Pacheco's claim had
been previously allowed for "crushing injury right foot;
contusion right foot; complex regional pain syndrome right
ankle/foot, " but that Pacheco's claim for anxiety
disorder had been disallowed. (Emphasis omitted.)
(Stipulation of Evidence at 327.) The SHO summarized
Pacheco's case procedural history, stating:
Procedurally this issued [sic] comes before the Commission as
a result of a mandamus action which was dismissed. The
parties by agreement vacated the Staff Hearing Officer order
issued 07/30/2013 denying the payment of temporary total
disability compensation commencing from 04/22/2013 and agreed
that the issue should be sent back to the Commission for a
new hearing before Staff Hearing Officer once again on the
[Pacheco's] appeal filed 06/05/2013 on the issue of
temporary total disability compensation commencing from
Id. at 329. The SHO's July 15, 2015 order denied
Pacheco's request for the payment of TTD compensation
"commencing 04/22/2013 per the MEDCO-14 Physician's
Reports of Work Ability and C-84 Requests for Temporary Total
Compensation of Todd Hochman, M.D" be denied.
Id. In doing so, the SHO found, based on a
preponderance of the evidence, a "lack of persuasive
medical documentation to support that [Pacheco] could no
longer perform his modified job duties as a result of the
allowed conditions in the claim." Id. . at 330.
14} On August 19, 2015, Pacheco filed a request for
reconsideration of the SHO's July 15, 2015 order. On
September 16, 2015, the three-member commission mailed an
order denying Pacheco's request. Then Pacheco filed this
mandamus action on November 10, 2015.
15} The magistrate determined that this case
presents two issues:
(1) whether Alcoa was required to give [Pacheco] a written
job offer pursuant to Ohio Adm.Code 4121-3-32(A)(6), and (2)
whether the finding by the SHO (July 15, 2015 order) that Dr.
Hochman's opinion is unpersuasive that relator was unable
to return to any employment as of April 22, 2013 is supported
by some evidence on which the SHO relied.
(App'x at ¶ 92.) The magistrate determined that
Alcoa was not required to give Pacheco a written job offer
pursuant to Ohio Adm.Code 4121-3-32(A)(6). The magistrate
also determined that the SHO's finding that Dr.
Hochman's opinion is unpersuasive is supported by some
evidence "on which the SHO relied." (App'x at
¶ 91.) Based on the evidence in the record and the
arguments of the parties, the magistrate concluded that the
commission's decision to deny Pacheco's request for a
new period of TTD compensation commencing April 22, 2013 was
not an abuse of discretion. Accordingly, the magistrate
recommended that Pacheco's application for a writ of
mandamus be denied.
16} Pacheco timely filed objections to the
OBJECTIONS TO MAGISTRATE'S DECISION
17} Pacheco presents three objections to the
[1.] Relator objects to the Magistrate's Statement of
Facts to the extent that it looks at Dr. Hochman's
opinion only to the exclusion of Dr. Wilbur's and the
inter-relationship of the two treating physicians.
[2.] The Magistrate erred by finding that the Industrial
Commission did not abuse its discretion when it determined
that Relator, despite having never been found MMI, had to
show a functional change, i.e., new and changed
circumstances, to merit a new period of temporary total
disability after a failed attempt to return to work in a
[3.] The Magistrate erred by failing to address whether
Alcoa's light-duty "job" assignment of simply
sitting in the cafeteria on display for his coworkers to see
was a good faith light-duty job, especially in light of its
denial of TTD.
objection, Pacheco restates the arguments he presented in his
merit brief that the magistrate previously considered and
rejected in reaching his decision.
LAW AND DISCUSSION
Standard of Review
18} To be entitled to relief in mandamus, Pacheco
must establish that he has a clear legal right to relief,
that the commission has a clear legal duty to provide such
relief, and that he has no plain and adequate remedy in the
ordinary course of law. State ex rel. Berger v.
McMonagle, 6 Ohio St.3d 28 (1983). To do this, Pacheco
must demonstrate that the commission abused its discretion
and, "in this context, abuse of discretion has been
repeatedly defined as a showing that the commission's
decision was rendered without some evidence to support
it." State ex rel. Burley v. Coil Packing,
Inc., 31 Ohio St.3d 18, 20 (1987). To be successful in
this mandamus action, Pacheco must show that the
commission's decision is not supported by some evidence
in the record. State ex rel. Elliott v. Indus.
Comm., 26 Ohio St.3d 76 (1986). Conversely, where the
record contains some evidence to support the commission's
findings, there has been no abuse of discretion, and mandamus
is not appropriate. State ex rel. Lewis v. Diamond
Foundry Co., 29 Ohio St.3d 56 (1987). Credibility and
the weight to be given evidence are clearly within the
discretion of the commission as the factfinder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
Insofar as the magistrate has worded the proposed holding
that the "some evidence" in the record must be
the evidence on which the SHO actually relied in
reaching his or her decision, we decline to adopt that as a
statement of the law. Rather, according to Elliott,
while the commission must state a reason for its decision,
there must exist in the record "some evidence" that
supports the decision of the commission to avoid a writ of
19} In reviewing Pacheco's objections to the
magistrate's decision, we note that he specifically
objects to paragraphs 16 through 18, and paragraphs 22
through 26, of the magistrate's statement of facts,
arguing they "omit necessary information regarding Mr.
Pacheco's medical care." (Sept. 20, 2016 Objs. To
Mag.'s Decision at 5.) Pacheco essentially argues that
when the law is applied to what he alleges to be an
incomplete rendering of the evidence, it is misapplied for
the purposes of determining the law of the case. Based on
this, Pacheco urges we find, "an abuse of
discretion" by "the Magistrate and Industrial
Commission" because they "solely look[ed] at the
opinion of one of Mr. Pacheco's treating physicians and
only a portion of the other." Id. at 6.
20} The magistrate summarized in his decision the
respective roles of the commission and this Court in
The commission alone is responsible for the evaluation of the
weight and credibility of the evidence before it. State
ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18
(1987). In mandamus, the role of this court is limited to a
determination as to whether there is some evidence to support
the commission's decision. Id.
Moreover, the commission's order must briefly explain the
commission's reasoning in granting or denying
workers' compensation benefits, and it must specifically
state the evidence relied upon. Noll.
Here, it is clear that [Pacheco] is inviting this court to
step outside its role in a mandamus review. [Pacheco] invites
this court to reweigh the evidence that was before the
commission when it rendered its decision (SHO's order of
July 15, 2015). This court must decline the invitation.
(App'x at ¶ 100-102.)
21} The omission of certain factual matters in
evidence that the objector wishes to be considered is within
the purview of the factfinder, that is, the commission. The
commission is free to weigh evidence and determine what is
credible and important. Burley. On mandamus, our
role is to determine whether the record contains some
evidence that would support the commission's decision. If
we find that there is some such evidence, we are not
empowered to find an abuse of discretion. Elliott.
22} The magistrate identified and determined that
there was some evidence in the record to support the
commission's decision denying Pacheco's application
for a new period of TTD. The magistrate detailed in his
recitation of facts from the record the diagnosis and
treatment of Pacheco's injury by the physicians who
examined him, Alcoa's accommodations of the medical
restrictions under which Pacheco returned to work, and the
commission's consideration of the pertinent facts and the
application of the relevant law to Pacheco's application.
In doing so, the magistrate discussed the opinions rendered
by three physicians who examined Pacheco soon before and
after he returned to Alcoa for light-duty work on April 1,
23} The Medco-14 that Dr. John Wilber completed ten
days after having examined Pacheco on March 5, 2013 indicated
that Pacheco was not released to his former position of
employment but could return to "available and
appropriate work with restrictions" from April 1 to May
1, 2013. (Stipulation of Evidence at 97.) The
On the Medco-14, Dr. Wilber indicated by his marks that
[Pacheco] can work 8 hours per day and 40 hours per week; use
his left foot to perform repetitive actions to operate foot
controls or motor vehicles; no operation of heavy machinery
or driving while taking prescribed medications; occasionally
lift/carry 10 pounds; occasionally bend, squat, kneel,
twist/turn, and reach above shoulder; occasionally drive an
automatic vehicle; frequently type on a keyboard; sit for 8
hours with a break; walk for 2 hours with a break; and stand
for 2 hours with a break.
(App'x at ¶ 58.)
24} The magistrate also discussed restrictions
imposed by Dr. Dennis A. Glazer, who at Alcoa's request
had also examined Pacheco on March 14, 2013 (after Dr.
Wilber's examination but before Dr. Wilber completed the
Medco-14 form). Dr. Glazer had similarly restricted Pacheco
to sedentary work with no significant walking or carrying,
but did not address what Pacheco could do with his left,
It is my opinion within reasonable medical probability that
Mr. Pacheco is unable to perform the duties as outlined in
the job description. If he would return to work, he would
have to have a sedentary job with no walking and no carrying
since he would have to walk with crutches. If the trip from
the parking lot to his point of work was over several 100
yards, he would have to be brought in with a motorized car or
wheelchair. He would be unable to drive since he could not
use his right leg for accelerator or breaking.
(Stipulation of Evidence at 96.)
25} In reviewing the record, the magistrate noted
that Dr. Wilber again examined Pacheco on April 2, 2013, one
day after he had returned to work for light duty. The
magistrate found that Pacheco had informed Dr. Wilber that
Alcoa had Pacheco "sitting in a cafeteria doing nothing
with his foot down, " a situation that Pacheco indicated
was very painful. (Stipulation of Evidence at 103.) The
record indicates that Dr. Wilber did have concern that
Pacheco was "just sitting with the foot down" and
he expressed his hope that Alcoa "will at least let him
get it elevated and move around some." Id. But
there is nothing in the record that indicates Dr. Wilber
modified his earlier restrictions on Pacheco's return to
26} The magistrate's findings of fact discuss
the Medco-14 that a third doctor, Dr. Todd Hochman, completed
on April 22, 2013, after Pacheco had been back to work for
three weeks. Dr. Hochman stated that Pacheco "is
temporarily not released to any work, including the former
position of employment." (Stipulation of Evidence at
108.) The magistrate outlined the following limitations Dr.
Hochman placed on Pacheco's return to work:
On the Medco-14, Dr. Hochman indicated relator's
capabilities and restrictions. Dr. Hochman indicated relator
can perform simple grasping with both hands; perform
repetitive wrist motion with both wrists; use his left foot
to perform repetitive actions to operate foot controls or
motor vehicles; no operation of heavy machinery or driving
while taking prescribed medications; no lifting/carrying,
bending, squatting, kneeling, twisting/turning; occasionally
reach above shoulder; frequently type on a keyboard; sit
six-to-eight hours per day with a break; walk for one hour
with a break; and stand for one hour with a break.
(App'x at ¶ 66.)
27} In findings 19 through 21 of his decision, the
magistrate discussed a report and two affidavits from Alcoa
personnel documenting how the light-duty position Alcoa
offered Pacheco satisfied the restrictions set by both Drs.
Wilber and Hochman. The affidavits included a statement that
Pacheco never reported to anyone in the Alcoa medical
department that he had any physical difficulty with his
light-duty position during the time he held it.
28} We find that Pacheco's first objection goes
to the relative weight of opposing evidence, a task that is
within the discretion of the commission as the factfinder.
Teece. While Pacheco asserts that the magistrate
impermissibly weighed the evidence by not discussing some of
it in reaching his legal conclusions, we find that the
magistrate simply performed for the Court its duty to
consider whether there is some evidence in the record to
support the commission's decision. The magistrate
concluded that the record included some evidence on which the
commission could rely in denying Pacheco's new period of
TTD beginning April 22, 2013. Upon our independent review, we
agree with the magistrate.
29} We therefore overrule Pacheco's first
objection to the magistrate's decision.
30} In his second objection, Pacheco argues that the
magistrate erred as a matter of law by finding Pacheco did
not show "new and changed circumstances" for a new
period of TTD compensation to commence. (Compl. at ¶
22.) This analysis requires a comparison of the
Medco-14's completed by each of Pacheco's three
doctors-Drs. Wilber, Glazer, and Hochman. Such a comparison
ultimately requires not a legal conclusion, but a factual
one, to determine whether the commission abused its
discretion in denying a new period of TTD. We also note that
neither the SHO's order nor the magistrate's decision
requires that Pacheco show a functional change or
demonstration of "new and changed circumstances."
31} Instead, the magistrate determined that the SHO,
in weighing the medical evidence before her, found
unpersuasive Dr. Hochman's opinion that Pacheco was
unable to return to any work as of April 22, 2013. In doing
so, the magistrate stated:
The SHO's order of July 15, 2015 explains in some detail
the reasoning that supports the SHO's conclusion. The SHO
explains that the restrictions provided by Dr. Hochman are
"indistinguishable" from the restrictions provided
by Dr. Wilber. Significantly, [Pacheco] does not dispute the
SHO's observation in comparing the restrictions of Drs.
Wilber and Hochman. The SHO pointed out the absence of
"any documented worsening of [Pacheco's] objective
clinical findings or functional ability."
That is to say, [Pacheco] worked for approximately three
weeks at his light-duty job at Alcoa under Dr. Wilber's
restrictions and then failed to work further under
essentially the same restrictions from Dr. Hochman. The
difference being that Dr. Wilber released [Pacheco] to work
under the restrictions, but Dr. Hochman opined that relator
was unable to do any work.
Clearly, the SHO's order of July 15, 2015 provides a
valid basis supported by some evidence for denial of the
request for TTD compensation beginning April 22, 2013.
(App'x at ¶ 104-106.)
32} Finding that the magistrate appropriately
applied the relevant standard, we overrule Pacheco's
33} For his third objection, Pacheco argues that the
magistrate erred in finding that Alcoa was not required to
reduce to writing its offer of the light-duty job position.
Pacheco argues that the magistrate failed to address
"the larger issue" of whether the light-duty job
was a legitimate good-faith job under Ohio Adm.Code
4121-3-32(A)(6), and whether it was "a warning to other
Alcoa workers about what happens when you file a workers'
compensation claim." (Objs. to Mag.'s Decision at
34} Pacheco acknowledges in his objection that an
injured worker is entitled to TTD compensation when he or she
is incapable of returning to his or her former position of
employment, and/or when the employer is unable to accommodate
medically imposed restrictions. Pacheco contends that Alcoa
has a practice of accommodating injured workers' work
restrictions by giving them light-duty jobs that require them
to be "on display" in the company cafeteria. He
asks this Court to address whether or not Alcoa's
"accommodations" qualify as a legitimate good-faith
job under the law "to prevent this practice from
continuing to occur." (Objs. to Mag.'s Decision at
35} The magistrate found evidence in the record
indicating that Pacheco was placed in the cafeteria to
accommodate the distance he had to walk from the parking lot
to the building and to facilities within the building, and
that he was assigned web-based training and filing duties
from April 1 through April 19, 2013. The magistrate found
that Pacheco's "testimony as to the duties (or lack
thereof) of the job Alcoa provided beginning April 1, 2013
goes to the weight of the medical evidence that was before
the SHO during the July 15, 2015 hearing." (App'x at
¶ 111.) The magistrate concluded that "the SHO was
not required to find that Alcoa's job offer was made in
bad faith or that [Pacheco] was unable to continue the job
after April 22, 2013." Id. at ¶ 112.
36} We disagree with the magistrate's
conclusion. Based on evidence in the record and mentioned in
the magistrate's decision, that being the Medco-14 of Dr.
Glazer and the subsequent April 2, 2013 medical notes of Dr.
Wilber, placing Pacheco in the lunchroom to do web-based work
and filing, rather than at a desk was not suitable employment
offered in good faith pursuant to Ohio Adm.Code
4121-3-32(A)(6). Dr. Glazer stated limitations such that,
"[i]f the trip from the parking lot to his point of work
was over several 100 yards, he would have to be brought in
with a motorized car or wheelchair. He would be unable to
drive since he could not use his right leg for accelerator or
breaking." (Stipulation of Evidence at 96.)
37} A "job offer" of light duty to an
injured worker pursuant to Ohio Adm.Code 4121-3-32(A)(6) such
as a desk job in a lunchroom is neither objectively suitable
nor objectively in good faith without evidence that the work
can actually be performed in such an environment. To the
contrary, the evidence from Pacheco's second visit to Dr.
Wilber indicated he was having trouble performing the work in
the lunchroom. While Dr. Wilber did not change his
restrictions, "[t]he treating physician does not decide
whether the injured worker will accept an offer of
employment. The injured worker makes that decision and the
employer needs to communicate the job offer to the injured
worker, not rely on the treating physician or the
physician's staff to interpret the job offer for the
worker." State ex rel. Scott v. Indus. Comm.,
10th Dist. No. 07AP-1041, 2008-Ohio-4104, ¶ 12. Whether
or not Pacheco communicated this to the employer is not the
linchpin for Alcoa. The test is an objective one.
The word "suitable" in Ohio Adm.Code 4121-3-32(B)
does not mean "suitable to the employer." To be
suitable, the offer must be suitable from an objective
point of view. * * * The courts are then in a position
to determine if the employer's job offer is an offer of
truly suitable employment.
(Emphasis added.) Scott at ¶ 16. Failure to
comply with Ohio Adm.Code 4121-3-32(A)(6), is a failure to
offer suitable employment for purposes of Ohio Adm.Code
4121-3-32(B). Id. We objectively determine that
web-based training and especially filing duties cannot
suitably be performed in a lunchroom absent other evidence to
prove that such an environment can accommodate the assigned
work tasks. There is no evidence in the record that supports
an objective conclusion that Pacheco was provided suitable
employment pursuant to Ohio Adm.Code 4121-3-32.
38} We find contra the conclusion of the magistrate
that the credibility of testimony or the weight to be given
to the evidence affects whether an employer has made in good
faith an offer of suitable employment in this context of TTD
and pursuant to Ohio Adm.Code 4121-3-32. The record of this
matter fails to provide some evidence to support the
commission's findings that Pacheco's light duties
were provided in good faith pursuant to Ohio Adm.Code
4121-3-32(A)(6). We hold that the commission has abused its
discretion in denying reconsideration of the SHO's July
15, 2015 order and thus mandamus is appropriate.
39} We sustain Pacheco's third objection to the