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State ex rel. Nationwide Children's Hospital v. The Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

May 8, 2018

The State ex rel. Nationwide Children's Hospital, Relator,
v.
The Industrial Commission of Ohio, et al., Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

          Vorys, Sater, Seymour and Pease LLP, and Corrine S. Carman, for relator.

          Michael DeWine, Attorney General, and Sherry M. Phillips, for respondent Industrial Commission of Ohio.

          Thomas Tootle, for respondent Sheila Broomfield.

          DECISION

          TYACK, J.

         {¶ 1} Nationwide Children's Hospital filed this action in mandamus, seeking a writ to compel the Industrial Commission of Ohio ("commission") to vacate its orders granting permanent total disability ("PTD") compensation to Sheila Broomfield.

         {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, this case was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision, appended hereto, which contains detailed findings of fact and conclusions of law. The magistrate's decision recommends that we grant a limited writ of mandamus, compelling the commission to vacate the award of PTD compensation and conduct further proceedings centered on Broomfield's ability to develop new skills such that she could, in the future, engage in sustained remunerative employment.

         {¶ 3} Counsel for the commission has filed objections to the magistrate's decision. Counsel for Broomfield has also filed objections to the magistrate's decision. Both of these sets of objections assert that no writ should be granted. Counsel for Nationwide Children's Hospital has filed memoranda in response to the objections.

         {¶ 4} The case is now before the court for a full, independent review.

         {¶ 5} Broomfield is a woman in her mid-60s who was seriously injured on the job. The injury led to very serious psychological problems, specifically major depressive disorder. Both counsel for the commission and counsel for Broomfield point out that the key case on which our magistrate relied, B.F. Goodrich v. Indus. Comm., 73 Ohio St.3d 525 (1995), did not involve a claimant who had serious psychological problems and did not involve a claimant who had reached retirement age. Their points are well made.

         {¶ 6} Broomfield did not complete high school but still found employment as a secretary, retail associate, and key punch operator.

         {¶ 7} There is no longer a demand for key punch operators. Her psychological problems make it impossible for her to interact with other people on a sustained basis. Her part-time employment history provides no future employment potential.

         {¶ 8} The commission recognized the fact that Broomfield had no transferable skills and could not reasonably be expected to develop new ones, given her age and psychological challenges. Although we understand our magistrate's intention to follow the B.F. Goodrich case, we agree with the observation of both counsel for the commission and counsel for Broomfield that the facts in Broomfield's claims are too different from the facts in the B.F. Goodrich case for its decision to bind us here.

         {¶ 9} We are also required to give a certain amount of deference to the commission on its factual findings. In this case, we cannot disagree with the commission's finding that Broomfield is permanently and totally disabled. We sustain both sets of objections to the magistrate's decision. We adopt the findings of fact in the magistrate's decision, but not the conclusions of law. As a result, we deny the request for a writ of mandamus.

         Objections sustained; writ denied.

          KLATT and DORRIAN, JJ., concur.

         APPENDIX

         Rendered on December 20, 2017

         IN MANDAMUS

         MAGISTRATE 'S DECISION

          MAGISTRATE KENNETH W. MACKE

         {¶ 10} Following a May 3, 2016 hearing, the three-member Industrial Commission of Ohio ("commission") mailed two separate orders on June 22, 2016 that each exercised continuing jurisdiction over an order of a staff hearing officer ("SHO") mailed February 23, 2016 that had granted the application for permanent total disability ("PTD") compensation filed by respondent Sheila Broomfield ("claimant").

         {¶ 11} In this original action, relator, Nationwide Children's Hospital, Inc., requests a writ of mandamus ordering the commission to vacate that portion of each of the two orders that awarded PTD compensation, and to enter amended orders that deny PTD compensation. Findings of Fact:

         {¶ 12} 1. On February 1, 2010, claimant injured her left shoulder and cervical area while employed as a secretary for relator, a self-insured employer under Ohio's workers' compensation laws. The injury occurred when she was lifting a fire gate.

         {¶ 13} 2. The industrial claim (No. 10-829097) is allowed for:

Left shoulder sprain/strain; glenoid labral tear left shoulder; subscapularis tear left shoulder; subscapularis tendinosis left shoulder; cervical strain; substantial aggravation of preexisting left glenohumeral joint osteoarthritis; herniation C5-6; C5-6 radiculopathy; major depressive disorder.

         {¶ 14} 3. Claimant received temporary total disability ("TTD") compensation based on her "major depressive disorder."

         {¶ 15} 4. On January 31, 2014, relator moved for termination of TTD compensation.

         {¶ 16} 5. Following a March 12, 2014 hearing, a district hearing officer ("DHO") issued an order terminating TTD compensation as of the hearing date. The DHO's order states reliance on "the 01/20/2014 report of Dr. Murphy."

         {¶ 17} 6. Claimant administratively appealed the DHO's order of March 12, 2014.

         {¶ 18} 7. Following an April 28, 2014 hearing, an SHO issued an order affirming the DHO's order of March 12, 2014. The SHO's order held that the allowed psychological condition had reached maximum medical improvement ("MMI") and, therefore, TTD was terminated effective March 12, 2014 based on the "01/20/2014 report of Dr. Murphy."

         {¶ 19} 8. On July 7, 2014, treating psychologist John M. Malinky, Ph.D., wrote to claimant's counsel:

I saw Ms. Broomfield initially on 6/1/2013 and she was last seen on 6/7/2014. She is being treated for her allowed Major Depression. She is cooperative and compliant with treatment.
It is my professional opinion, with a reasonable degree of psychological certainty, that Ms. Broomfield is not able to maintain attention and concentration for extended periods of time. She does not have the ability to complete a normal work day and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. She does not have the ability to respond appropriately to changes in a work setting.
It is my professional opinion, with a reasonable degree of psychological certainty, that Ms. Broomfield is permanently and totally impaired from all sustained remunerative employment due to her allowed Major Depression which was caused by her February 1, 2010 industrial injury.

{¶ 20} 9. Two days later, on July 9, 2014, Dr. Malinky again wrote to claimant's counsel:

Ms. Broomfield requires six sessions of individual psychotherapy for the next six months. This is based on her signs, symptoms and restricted levels of daily activity. Her depression can be reduced to mild levels. Her concentration and attention can be improved. Her physical stamina can increase. She can leave the house more frequently and her social activities can increase.

{¶ 21} 10. On July 8, 2015, Charmaine M. Blair, M.D., wrote:

It is my opinion that Ms. Broomfield is a candidate for permanent total disability, due to her serious left shoulder injury and resulting impairments associated with injury. Ms. Broomfield has been permanently unable to perform sustained employment as a result of multiple issues including: Left shoulder glenoid labral tear, left shoulder subscapularis tear, left shoulder subscapularis tendinosis, substantial aggravation of pre-existing left glenohumeral joint osteoarthritis, disc herniation at C5-6, cervical radiculopathy, left shoulder sprain/strain and cervical strain.
It is my belief that due to length of time patient has shown no improvement in her objective clinical finding and subjective, permanent complaints that are consistent with her exam, she is considered permanently, totally disabled.

         {¶ 22} 11. On July 28, 2015, claimant filed an application for PTD compensation. In support, claimant submitted the July 8, 2015 report of Dr. Blair.

          {¶ 23} 12. On September 2, 2015, at relator's request, claimant was examined by psychiatrist Richard H. Clary, M.D. In his six-page narrative report, dated September 3, 2015, Dr. Clary opined:

In my medical opinion, Ms. Broomfield has reached MMI for the allowed psychiatric condition in the claim.
[One] In my medical opinion, the allowed condition of Major Depressive Disorder does not cause any limitations or restrictions in her ability to work. In my medical opinion, her major depressive disorder is mild.
[Two] In my medical opinion, the allowed psychiatric condition in the claim would not cause any limitations or restrictions in her ability to work.
[Three] In my medical opinion, the allowed psychiatric condition in the claim would cause a 10 percent permanent partial impairment of the whole person based on the ...

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