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State ex rel. Patterson v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

December 21, 2017

State of Ohio ex rel. Leona Patterson, Relator,
v.
Industrial Commission of Ohio and Greater Cleveland Regional Transit Authority, Respondents.

         IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION

         On brief:

          N.R.S. Co. L.PA., Jerald A. Schneiberg, and Corey J. Kuzma, for relator.

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

          Anna Hlavacs, for respondent Greater Cleveland Regional Transit Authority.

          DECISION

          SADLER, J.

         {¶ 1} Relator, Leona Patterson, brings this original action seeking a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its June 23, 2016 order denying relator's fourth application for permanent total disability ("PTD") compensation.

         {¶ 2} The record shows relator sustained a work-related injury while working as a bus driver in 1992. After she returned to work as a bus driver, relator sustained serious injuries when several juveniles assaulted her on April 2, 2000. Relator did not return to work following the April 2, 2000 injury. Relator filed her first PTD application in 2012. On June 10, 2004, a staff hearing officer ("SHO") determined "claimant has failed to prove by a preponderance of competent medical evidence that the injuries the claimant sustained during her work career is preventing her from sustained and gainful employment. [T]he medical evidence * * * indicates the claimant could perform sedentary employment." (Emphasis omitted.) (Stipulated Record at 143-44.) On May 12, 2005, an SHO denied relator's second PTD application finding "[h]er disability is partial, not total. Her allowed injuries do not prevent her from engaging in sustained remunerative employment." (Stipulated Record at 156.) On November 27, 2012, an SHO denied relator's third PTD application on finding relator was not "physically or psychologically prevent[ed] * * * from engaging in sustained remunerative employment * * * in the sedentary to light duty levels." (Stipulated Record at 167.) On March 3, 2014, following a vocational assessment, an SHO issued an order finding "the Injured Worker's request for entrance into a rehabilitation vocational plan is denied as the Injured Worker is not a feasible candidate."[1] (Stipulated Record at 133.)

         {¶ 3} On September 9, 2016, the three-member commission denied relator's fourth application for PTD. In denying relator's fourth application for PTD, the commission found "the Injured Worker is ineligible to receive [PTD] compensation for the reason her lack of effort to pursue suitable employment since at least 6/23/04, the date the order was issued denying the first of her three prior [PTD] Applications * * *, demonstrating an abandonment of the work force on that date." (Stipulated Record at 22.) Relator subsequently filed the instant action seeking a writ of mandamus.

         {¶ 4} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who rendered a decision and recommendation including findings of fact and conclusions of law, which is appended hereto. The magistrate determined the commission did not abuse its discretion in denying relator's fourth application for PTD benefits because evidence in the record supported the commission's finding that relator abandoned the workforce as early as June 2004. Accordingly, the magistrate recommended we deny the requested writ of mandamus.

         {¶ 5} In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, relator must show a clear legal right to the relief sought and the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists where the relator shows the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986).

         {¶ 6} Relator does not separately set forth an objection to the magistrate's decision. However, the crux of relator's claim is the commission failed to consider relator's allowed psychological condition in making the determination that she abandoned the workforce. The magistrate rejected relator's argument because relator had never previously contended the commission failed to consider her allowed psychological condition in denying her three prior PTD applications and because the commission grounded its finding of abandonment on relator's failure to rejoin the workforce after the denial of each of those prior applications. We agree with the logic employed by the magistrate.

         {¶ 7} In this case, there have been three prior determinations by the commission that relator is capable of sustained remunerative employment at the light duty or sedentary level. As the magistrate noted, relator has never contended the commission failed to consider relator's allowed psychological condition in denying any of relator's three prior PTD applications. Moreover, our review of the three prior determinations reveals the commission considered relator's allowed psychological condition in denying PTD. There is no dispute relator failed to return to work after any of those prior determinations.

         {¶ 8} Relator next contends the magistrate's decision is at odds with the decision of this court in State ex rel. Young v. Butler Cty. Personnel Office, 10th Dist. No. 15AP-1035, 2016-Ohio-8341. In Young, the commission denied relator's PTD application on finding relator had voluntarily abandoned the workforce. Relator filed a mandamus action in this court arguing the commission abused its discretion in ruling relator abandoned the workforce when that issue had not been raised by the employer. The magistrate disagreed and recommended we deny the requested writ. Relator objected to the magistrate's decision arguing the commission abused its discretion in finding relator voluntarily abandoned the workforce where the evidence showed relator was not medically capable of participating in rehabilitation services. In rejecting relator's argument, this court stated "if the claimant is not medically capable of participating in vocational rehabilitation services or working, * * * abandonment of the workforce is not voluntary." (Emphasis added.) Id. . at ¶ 6.

         {¶ 9} In this case, the commission's prior three orders denying PTD contained a finding that relator was currently capable of sustained remunerative employment in the light duty or sedentary level. The commission's findings regarding current employability included consideration of relator's allowed psychological condition and were not predicated on relator's participation in vocational rehabilitation services. Because relator was medically capable of working as early as June 2004, without the benefit of vocational training, nothing in our decision in Young precluded the commission from finding relator voluntarily abandoned the workforce as early as June 2004. Contrary to relator's assertion, Young actually supports the magistrate's decision.

         {¶ 10} To the extent relator contends the SHO's March 3, 2014 feasibility determination precluded the commission from subsequently finding relator abandoned the workforce in 2004, we note Ohio Adm.Code 4121-3-34(D)(1)(d) sets the test for voluntary abandonment as follows:

If, after hearing, the adjudicator finds that the injured worker voluntarily removed himself or herself from the work force, the injured worker shall be found not to be permanently and totally disabled. If evidence of voluntary removal or retirement is brought into issue, the adjudicator shall consider evidence that is submitted of the injured worker's medical condition at or near the time of removal/retirement.

(Emphasis added.)

         {¶ 11} Because the commission's determination that relator voluntarily removed herself from the workforce in 2004 required consideration of "the injured worker's medical condition at or near the time of removal/retirement, " the commission's 2014 feasibility determination is irrelevant to the question of abandonment. Nevertheless, it is evident from the commission's March 3, 2014 order and the evidence on which the commission relied that the commission fully considered relator's allowed psychological condition in making the determination relator was not a feasible candidate for vocational rehabilitation services. As the magistrate noted, the commission relied on the vocational rehabilitation assessment submitted by vocational specialist Amy Corrigan in making the determination regarding relator's eligibility for vocational rehabilitation services. The magistrate determined Corrigan's report provided some evidence on which the commission could rely in rejecting relator's assertion she wants to re-enter the workforce. We agree with the magistrate.

         {¶ 12} Following an independent review of the magistrate's decision and the objections filed by respondent, we find the magistrate has determined the pertinent facts and properly applied the relevant law. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusion of law contained therein. For the reasons set forth in the magistrate's decision and those expressed herein, relator's objection is overruled, and relator's request for a writ of mandamus is denied.

         Objection overruled; writ of mandamus denied.

          KLATT and BRUNNER, JJ., concur.

         APPENDIX

         Rendered on July 7, 2017

         IN MANDAMUS

         MAGISTRATE'S DECISION

          KENNETH W. MACKE MAGISTRATE.

         {¶ 13} In this original action, relator, Leona Patterson, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its June 23, 2016 order denying relator's fourth application for permanent total disability ("PTD") compensation on grounds that relator voluntarily abandoned the workforce and is, thus, ineligible for compensation, and to enter an order that adjudicates the application absent a finding of voluntary workforce abandonment. Findings of Fact:

         {¶ 14} 1. Relator has two industrial claims arising from her employment as a bus driver for respondent Greater Cleveland Regional Transit Authority ("GCRTA"), a self-insured employer under Ohio's workers' compensation laws.

         {¶ 15} 2. The first injury occurred March 12, 1992. The industrial claim (No. 92- 46564) is allowed for:

Trunk injury; contusion right shoulder; right shoulder/upper arm injury; sprain right shoulder/arm; right hip and thigh injury; sprain right hip and thigh; lumbosacral sprain.

         {¶ 16} 3. The second injury occurred April 2, 2000. The industrial claim (No. 00-382124) is allowed for:

Traumatic glaucoma/cataract - left eye; depressed fracture of the nasal bone; post-traumatic stress disorder; major depression; anxiety disorder.

         {¶ 17} 4. On January 2, 2003, relator filed her first PTD application.

         {¶ 18} 5. Following a June 10, 2004 hearing, a staff hearing officer ("SHO") issued an order denying relator's PTD application. The SHO's order of June 10, 2004 explains:

[T]he claimant has failed to prove by a preponderance of competent medical evidence that the injuries the claimant sustained during her work career is preventing her from sustained and gainful employment.
* * *
[T]he medical evidence * * * indicates the claimant could perform sedentary employment. Her daily activities also suggest claimant could perform sedentary work and could perform the booth attendant job previously offered by the employer. * * * [T]he claimant has strong vocational assets in her young age and her education which includes a GED and training in cosmetology and word processing.
These vocational factors are sufficient for the claimant to perform sustained and gainful work at the sedentary level.

(Emphasis sic.)

         {¶ 19} 6. On September 3, 2004, relator filed her second PTD application.

         {¶ 20} 7. Following a May 12, 2005 hearing, an SHO issued an order denying the second PTD application. The SHO's order of May 12, 2005 explains:

The medical evidence indicates that the injured worker cannot perform the bus driver job that she had before her injury in 2000 but that she can perform work at the 'light' strength level, in a job where she did not need perfect visual acuity or a complete field of vision, and where she would not be around crowds and juveniles. She has a high school education, with additional training in word processing, is capable of reading and writing as well as learning new skills and is young enough for vocational training. * * ...

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