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State ex rel. Pacheco v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

December 12, 2017

The State ex rel. Alfredo Pacheco, Relator,
v.
Industrial Commission of Ohio et al., Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

          Shapiro, Marnecheck & Palnik, and Matthew Palnik, for relator.

          Michael DeWine, Attorney General, and Eric J. Tarbox, for respondent Industrial Commission of Ohio.

          Frantz Ward LLP, Maris J. McNamara, Daniel A. Ward, and Michael C. Nunnari, Jr., for respondent Alcoa.

          DECISION

          BRUNNER, J.

         {¶ 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.

         I. 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.

Id.

         {¶ 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 Alcoa.

         {¶ 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.[1] 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 04/22/2013.

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 magistrate's decision.

         II. OBJECTIONS TO MAGISTRATE'S DECISION

         {¶ 17} Pacheco presents three objections to the magistrate's decision:

[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 light-duty capacity.
[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.

         On objection, Pacheco restates the arguments he presented in his merit brief that the magistrate previously considered and rejected in reaching his decision.

         III. LAW AND DISCUSSION

         A. 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 mandamus. Elliott.

         B. First Objection

         {¶ 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 mandamus:

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, 2013.

         Dr. Wilber's Report:

         {¶ 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 magistrate stated:

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.)

         Dr. Glazer's Report:

         {¶ 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, uninjured foot:

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 work.

         Dr. Hochman's Report:

         {¶ 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.

         C. Second Objection

         {¶ 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." Id.

         {¶ 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 second objection.

         D. Third Objection

         {¶ 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 11.)

         {¶ 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 12.)

         {¶ 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 ...


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