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State ex rel. Honda of America Mfg. Inc. v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

December 12, 2017

State ex rel. Honda of America, Mfg., Inc., Relator,
v.
Industrial Commission of Ohio, and Clifford A. Ball, Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Vorys, Sater, Seymour and Pease LLP, and Carl D. Smallwood, for relator.

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

          Agee, Clymer, Mitchell & Portman, and Robert M. Robinson, for respondent Clifford A. Ball.

          DECISION

          BRUNNER, J.

         {¶ 1} Relator, Honda of America, Mfg., Inc. ("Honda"), has filed this original action for a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the commission"), to vacate the October 10, 2015 order of its staff hearing officer ("SHO") awarding permanent total disability ("PTD") compensation under Ohio's workers' compensation laws to respondent, Clifford A. Ball, and to enter an order either denying Ball's PTD application or remanding Ball's PTD application to the commission for a new hearing and a decision that corrects certain deficiencies.

         {¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate. The magistrate issued the appended decision, including findings of fact and conclusions of law. The magistrate found that the commission's decision to award PTD benefits to Ball was not supported by some evidence in the record because it was based on a medical opinion that was internally inconsistent. The medical doctor's five-page narrative indicated the claimant was "permanently and totally disabled from performing sustained remunerative employment" but on the Physical Capacity Evaluation ("PCE") form the doctor indicated a physical capacity retention for part-time work of four to five hours per day. (Mar. 16, 2016 Stipulation of Evidence at 12.) The magistrate recommends for this reason that this Court grant a writ of mandamus remanding this matter back to the commission. Ball filed objections to the magistrate's decision. Honda and the commission opposed Ball's objections. The commission agrees that a limited writ should issue for the purpose of "remanding the matter back to the commission, as the trier of fact, to adjudicate Ball's PTD application in a manner consistent with the magistrate's decision." (Mar. 9, 2017 Commission's Memo. In Opp. Objs. To Mag.'s Decision at 2.)

         {¶ 3} After an examination of the magistrate's decision, an independent review of the record pursuant to Civ.R. 53, and due consideration of Ball's objections, we overrule his objections and adopt the magistrate's findings of fact and conclusions of law as our own. We thus grant a limited writ of mandamus, remanding the matter back to the commission to adjudicate Ball's PTD application in a manner consistent with the magistrate's decision which we adopt as our own.

         I. FACTS AND PROCEDURAL BACKGROUND

         {¶ 4} It is undisputed that Ball incurred an injury on August 27, 2001 arising out of his employment with Honda, a self-insured employer. Ball's industrial claim was allowed. In 2010, Ball filed an application for PTD compensation ("2010 PTD application"), which the commission granted. Honda challenged that award by filing a mandamus action with this Court, which issued the requested writ ordering the commission to enter a new order adjudicating that application. On July 13, 2012, the commission denied Ball's 2010 PTD application.

         {¶ 5} The record before us indicates that Ball underwent a Functional Capacity Evaluation ("FCE") at FCE Services, LLC on November 20, 2014. The evaluator concluded that Ball demonstrated the ability to perform, at a minimum, work between light and medium physical demand category, with appropriate opportunities throughout the work day to make positional adjustments.

         {¶ 6} The record further indicates that, on November 26, 2014, Ball's treating physician at that time, Stephen Altic, D.O., completed a Physician's Report of Work Ability ("Medco-14"), on which he indicated that Ball was not released to his former position of employment but could return to "available and appropriate work with restrictions." (Stipulation of Evidence at 184.) Dr. Altic indicated that Ball potentially could work 8 hours a day, 40 hours a week.

         {¶ 7} On December 18, 2014, Ball was examined at his own request by Nancy Renneker, M.D., and a non-treating independent examiner. The same day she examined Ball, Dr. Renneker prepared a report in which she opined that Ball was permanently and totally disabled from performing sustained remunerative employment as a result of his industrial injury. She also completed that day a PCE form on which she indicated that Ball was capable of the following physical actions: (1) stand for two hours, walk for one hour, and sit for two hours, (2) stand one-half hour without interruption, walk one-sixth hour without interruption, and sit one-half hour without interruption, (3) lift five pounds occasionally, (4) use his hands for repetitive simple grasping and fine manipulation, but not pushing and pulling, (5) use his right foot for repetitive movements as in operating foot controls, but not his left foot, (6) "partially bend" "[occasionally" but not squat, crawl, climb stairs, and climb ladders at all, and (7) reach above the shoulder level. (Stipulation of Evidence at 75-76.)

         {¶ 8} On January 23, 2015, Ball filed a PTD application. In support, he submitted Dr. Renneker's reports of December 18, 2014.

         {¶ 9} In March, April, and July 2016, Ball was examined separately by two physicians and one vocational expert, all of whom opined that Ball was capable of employment with appropriate restrictions and limitations.

         {¶ 10} An SHO heard Ball's PTD application on September 24, 2015. On October 10, 2015, the SHO mailed an order awarding Ball PTD compensation commencing December 18, 2014, "based only on the report of Dr. Renneker because it is found that hers was the most complete and reasonable exam on file." (Stipulation of Evidence at 48.) On December 5, 2015, the three-member commission mailed an order denying Honda's motion for reconsideration of the SHO's order.

         {¶ 11} On January 11, 2016, Honda filed this mandamus action alleging four grounds on which the commission abused its discretion in awarding PTD compensation to Ball. Honda argued that there is no competent medical evidence in the record to support the commission's conclusion that Ball "is unable to perform any sustained remunerative employment solely as a result of the medical impairment caused by the allowed condition(s)." (Jan. 11, 2016 Compl. at ¶ 29.) Second, Honda argued, that the commission relied solely upon Dr. Renneker's report, "which report violated the requirements of the Commission's rules and Medical Examination Manual, was internally inconsistent and, therefore, was defective as a matter of law." Id. at ¶ 30. Third, Honda argued that the commission had failed to conduct an analysis of the non-medical "Stephenson" factors, where the medical evidence uniformly demonstrated that Ball was capable of sustained remunerative employment." Id. at ¶ 31. Fourth and finally, Honda argued that the commission awarded PTD compensation despite the undisputed medical evidence that Ball was capable of vocational rehabilitation and the undisputed fact that Ball had failed to participate in the vocational training Honda offered.

         {¶ 12} On April 19, 2016, the commission filed its brief, requesting that this Court issue a limited writ remanding this matter back to the commission. The commission in its brief explained why it agreed mandamus was appropriate, at least to a limited extent:

The commission order at issue relies on the report of Dr. Renneker in granting PTD benefits, but Dr. Renneker's report does not indicate that the doctor reviewed any of Ball's existing medical records in the fifteen months prior to the application, as required by law. Accordingly, the commission concedes that a limited writ is necessary and appropriate in this matter to allow the commission to properly adjudicate this issue.

(Apr. 19, 2016 Commission's Brief at 1.)

         {¶ 13} The magistrate's decision centered on the issue of whether Dr. Renneker's report, on which the SHO stated exclusive reliance, provided some evidence to support the commission's PTD award. The magistrate concluded and the commission conceded that Dr. Renneker's report was internally inconsistent, as one section of the report indicated that Ball is permanently and totally disabled from performing any sustained remunerative employment, and a form submitted with the report indicated that Ball retains the physical capacity for part-time work of four to five hours a day. The magistrate thus determined that Dr. Renneker's report does not constitute some evidence on which the commission could have relied in support of its PTD award. The magistrate recommends that this Court issue a limited writ of mandamus "ordering the commission to vacate its SHO's order of September 24, 2015 awarding PTD compensation, and, in a manner consistent with this magistrate's decision, enter a new order that adjudicates the PTD application." (App'x at ¶ 73.) Relator, Honda, prays in its complaint for "a writ of mandamus voiding and vacating the October 10, 2015 order awarding permanent total disability compensation" to Ball, "and either ordering the Commission to enter a new order denying Ball's 2015 PTD application or remanding Ball's 2015 PTD application to the Commission for a new hearing and a decision which corrects the deficiencies described herein. (Compl. at 14-15.)

         II. OBJECTIONS TO MAGISTRATE'S DECISION

         {¶ 14} Ball's filing does not enumerate specific objections, although it contains a single bulleted heading that states, "Dr. Renneker's report is not so internally inconsistent that it does not constitute 'some evidence.' " (Feb. 9, 2017 Ball's Objs. to Mag.'s Decision at 2.) Ball objects generally to the magistrate's findings of facts and conclusions of law regarding Dr. Renneker's report. Ball asserts that the magistrate erred in concluding "that a partial review of a pre-printed 'check the box' form should take precedence over a thorough evaluation that concluded [Ball] was permanently and totally disabled from all forms of remunerative employment." Id. at 4.

         {¶ 15} Ball contends the magistrate accepted "Honda's invitation to substitute this Honorable Court's judgment over that of the [commission], " arguing that the commission had accepted Dr. Renneker's findings and had awarded him PTD benefits based on Dr. Renneker's report. Id. Ball submits the following argument in support of his contention:

The [commission] is the body in the state of Ohio that is charged with determining whether or not a claimant is permanently and totally disabled. Understandably, the employer does not like the result, however, no legal justification exists for this Court substituting its judgment over that of the [commission]. Some evidence exists to support the contention that [Ball] is permanently and totally disabled and, therefore, the Order from the [commission] should stand.

Id. at 4-5.

         III. LAW AND DISCUSSION

         {¶ 16} To be entitled to relief in mandamus, Honda must establish that it has a clear legal right to relief, and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967), paragraph nine of the syllabus. To do so, Honda 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 Packaging, Inc., 31 Ohio St.3d 18, 20 (1987). 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). To prove its entitlement to a writ of mandamus, Honda 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). But questions of 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).

         {¶ 17} The magistrate's decision includes a comprehensive discussion of the statutory and case law on the standard for determining what part-time employment may be viewed as sustained remunerative employment. The magistrate correctly stated that case law establishes that a work capacity of "four or more hours per day" constitutes sustained remunerative employment. State ex rel. Toth v. Indus. Comm., 80 Ohio St.3d 360 (1997); State ex rel. Sheller-Chiles v. Indus. Comm., 10th Dist. No. 13AP-245, 2014-Ohio-313, ¶ 5.

         {¶ 18} The magistrate observed that the portion of Dr. Renneker's report constituting a narrative disability opinion indicates Ball is unable to perform sustained remunerative employment, but this is inconsistent with the PCE form she completed as part of her report:

Both documents relate to the same medical examination performed on December 18, 2014 yet two very different opinions of [Ball's] disability emerge. While the "Physical Capacity Evaluation" indicates that [Ball] can perform part-time "in a work situation, " the narrative report indicates that [Ball] cannot perform sustained remunerative employment.

(App'x at ¶ 67.)

         {¶ 19} The magistrate's decision contains a thorough and accurate review of the case law establishing that a doctor's report can be so internally inconsistent that it cannot be some evidence on which the commission can rely. State ex rel. Taylor v. Indus. Comm., 71 Ohio St.3d 582 (1995); State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445 (1994). In his decision, the magistrate discusses the Supreme Court of Ohio's holding in State ex rel. M. Weingold & Co. v. Indus. Comm., 97 Ohio St.3d 44, 2002-Ohio-5353, in which substantial inconsistencies between two C-84s generated by the same examination do not constitute some evidence on which the commission may rely. Additionally, this Court has applied Weingold to eliminate from evidentiary consideration a physician's C-84 that was inconsistent with the physician's examination notes. State ex rel. Genuine Parts Co. v. Indus. Comm., 160 Ohio App.3d 99, 2005-Ohio-1447 (10th Dist.). Accordingly, the magistrate based his legal conclusions on such case law and found that Dr. Renneker's report does not provide the commission with some evidence to support the PTD award.

         {¶ 20} As noted, the commission concedes consistent with the magistrate's decision that its order was issued contrary to law, not constituting the necessary "some evidence" to avoid an abuse of discretion. And the commission acknowledges that Dr. Renneker did not consider in her report any of Ball's medical treatment or testing in the 15 months before her independent medical examination of him, and thus the commission's decision to award PTD is not supported with medical evidence as required by Ohio Adm.Code 4121-3-34(D)(3)(d). The commission submits that Ball, through his objections, is asking this Court to act as the trier of fact and reweigh the evidence, contrary to the holdings of Teece and State ex rel. Honda of Am. Mfg., Inc. v. Indus. Comm., 10th Dist. No. 14AP-82, 2014-Ohio-5245, ¶ 10. The commission encourages this Court to overrule Ball's objections and to grant a limited writ of mandamus, remanding the matter back to the commission, as the trier of fact, to adjudicate Ball's PTD application in a manner consistent with the magistrate's decision.

         {¶ 21} Ball, in both his brief and his objections to the magistrate's decision, does not address the commission's concession that its order awarding him PTD compensation was granted contrary to law.

         {¶ 22} We agree with the magistrate's decision. The inconsistencies between the narrative report and the PCE form which Dr. Renneker prepared on December 18, 2014 following her examination of Ball, cannot be reconciled. Consequently, we find that Dr. Renneker's report, specified by the SHO to be the only evidence upon which the PTD eligibility determination is based, does not constitute some evidence to support the commission's decision that Ball could not participate in sustained remunerative employment and is permanently and totally disabled.

         IV. CONCLUSION

         {¶ 23} Having reviewed the magistrate's decision, conducted an independent review of the record, and given due consideration to Ball's objections, we hold that the magistrate has appropriately made its findings of fact and conclusions of law in finding that Honda is entitled to relief in mandamus. Therefore, we overrule Ball's objections to the magistrate's decision and adopt the decision as our own, including the findings of facts and conclusions of law therein. We grant a limited writ of mandamus, ordering the commission to vacate its decision of December 9, 2015 denying reconsideration of the SHO's order of September 24, 2015, awarding PTD compensation, and in a manner consistent with this decision, hold a new hearing and thereafter enter a new order that adjudicates Ball's PTD application having corrected the deficiencies described herein.

         Objections overruled; writ ...


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