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State ex rel. Digiacinto v. Industrial Commission of Ohio and Wheeling-Pittsburgh Steel Corp.

Court of Appeals of Ohio, Tenth District

May 22, 2018

State of Ohio ex rel. Paul A. Digiacinto, Relator,
v.
Industrial Commission of Ohio and Wheeling-Pittsburgh Steel Corp., Respondents.

          IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION

         On brief:

          The Bainbridge Firm, LLC, Andrew J. Bainbridge, Christopher J. Yeager, and Carol L. Herdman, for relator.

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

          DECISION

          BRUNNER, J.

         {¶ 1} Relator, Paul A. Digiacinto, filed this original action seeking a writ of mandamus that would order respondent, Industrial Commission of Ohio ("the commission"), to vacate its February 25, 2016 order that granted the December 15, 2015 motion of the administrator of the Ohio Bureau of Workers' Compensation ("the administrator" or "BWC") for the exercise of continuing jurisdiction over the November 30, 2015 order of its staff hearing officer ("SHO") that awarded permanent total disability ("PTD") compensation to relator, and to enter an order that denies the administrator's motion and reinstates the November 30, 2015 order of the SHO awarding PTD compensation. At issue is whether the commission properly considered all relevant information in determining that Digiacinto was ineligible for PTD compensation because he had voluntarily abandoned the workforce.

         {¶ 2} Digiacinto asserts that the commission abused its discretion in determining that he had voluntarily abandoned the workforce, rendering him ineligible to receive PTD compensation.

         {¶ 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 found Digiacinto failed to meet his burden proving that BWC had waived its legal right to assert the defense of voluntary abandonment of the workforce. The magistrate also found Digiacinto failed to meet his burden showing that his allowed condition "independently" caused his disability. (App'x at ¶ 83.) Based on these findings, the magistrate decided that this Court should deny Digiacinto's request for a writ of mandamus.

         {¶ 4} Digiacinto timely filed his objections to the magistrate's decision. The record before us indicates that no memorandum contra the objections was filed.

         {¶ 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 sustain Digiacinto's objections and remand this matter to the commission for action consistent with this decision.

         I. FACTS AND PROCEDURAL BACKGROUND

         {¶ 6} The magistrate's 15-page decision details Digiacinto's industrial injury claim history. No one disputes that on August 1, 2001, Digiacinto sustained an injury in the course of and arising out of his employment with respondent, Wheeling-Pittsburgh Steel Corporation, a self-insured employer. Digiacinto's claim was allowed initially for lumbar strain. Other conditions were allowed later, including disc herniation at L4-5 and L5-S1, lumbar radiculopathy, and right L3-4 disc herniation. Digiacinto was awarded temporary total disability ("TTD") compensation. That compensation was terminated in 2003 when Digiacinto had reached maximum medical improvement ("MMI") for the industrial injury.

         {¶ 7} According to the record, Digiacinto filed for Social Security disability benefits on May 28, 2002 for the lumbar conditions allowed in his claim. A Social Security Administration ("SSA") administrative law judge ("ALJ") heard Digiacinto's claim on August 22, 2003 and thereafter, on November 18, 2003, awarded him Social Security disability benefits. The ALJ's decision of the same date ("ALJ decision") contained these findings:

After consideration of the entire record, the Administrative Law Judge makes the following findings:
[One] The claimant has not engaged in any substantial gainful activity since the disability onset date.
[Two] The claimant's impairments which are considered to be "severe" under the Social Security Act are as follows: lumbar disc herniations with foraminal stenosis and lumbar radiculopathy.
[Three] The claimant's impairments do not, singly or in combination, meet or equal in severity the appropriate medical findings contained in 20 CFR Part 404, Appendix 1 to Subpart P (Listing of Impairments).
[Four] The claimant's allegations are credible.
[Five] The claimant has the residual functional capacity to do the following: He can perform the exertional demands of no more than sedentary work, or work which is generally performed while sitting and does not require lifting in excess of ten pounds.
[Six] The claimant is unable to perform his past relevant work.
[Seven] The claimant was 52 years old (closely approaching advanced age, 50 - 54) on the date his disability began. The claimant has a high school education.
[Eight] The claimant has unskilled past relevant work.
[Nine] Based upon the claimant's residual functional capacity, and vocational factors, there are no jobs existing in significant numbers which he can perform. This finding is based upon the following: medical - vocational rule 201.09.
[Ten] The claimant met and meets the disability insured status requirements of the Social Security Act on the date disability began, and through December 31, 2006.
[Eleven] The claimant has been under a disability as defined by the Social Security Act and Regulations since December 6, 2001.

(Emphasis sic.) (May 31, 2016 Stipulation of Evidence at 28.)

         {¶ 8} Digiacinto applied for PTD compensation in 2006 and again in 2013. The commission denied both applications based on medical and vocational reports opining that Digiacinto was capable of performing sustained remunerative employment.

         {¶ 9} In 2014, Digiacinto's claim was additionally allowed for psychological conditions, including "depressive disorder; generalized anxiety disorder; adjustment disorder with depressed mood." (July 5, 2016 Am. Stipulation of Evidence at 95.) Digiacinto was awarded TTD compensation beginning February 7, 2014 and ending November 24, 2015, when the allowed psychological conditions had reached MMI.

         {¶ 10} On July 8, 2015, Digiacinto filed his third PTD application, this time supported with the report of psychologist Marian Chatterjee, Ph.D., who had examined him only for the allowed psychological conditions of the claim. In a five-page narrative report, Dr. Chatterjee opined that Digiacinto "is permanently and totally disabled" by the allowed psychological conditions. (May 31, 2016 Stipulation of Evidence at 56.) At the commission's request, Digiacinto then was examined by Nicholas Varrati, M.D., for only the allowed physical conditions of the claim. In his six-page narrative report, Dr. Varrati opined that Digiacinto "would be unable to sustain remunerative employment." Id. at 64. Additionally, Dr. Varrati indicated on a form captioned "Physical Strength Rating" that Digiacinto "is incapable of work." Id. at 65. BWC opposed Digiacinto's application, arguing that he had voluntarily abandoned the workforce.

         {¶ 11} A commission SHO heard Digiacinto's application on November 30, 2015. At the hearing, Digiacinto submitted a copy of the ALJ's decision concluding that he is "entitled to a period of disability beginning December 6, 2001, and to disability insurance benefits under Sections 216(i) and 223, respectively, of the Social Security Act." Id. at 21.

         {¶ 12} On December 2, 2015, the SHO mailed an order ("SHO's order") granting Digiacinto's 2015 application and awarding PTD compensation beginning September 9, 2015 based on the reports of Drs. Varrati and Chatterjee. The magistrate's decision sets forth the SHO's order, in which the SHO explained he was not finding that Digiacinto had voluntarily abandoned the workforce because the administrator had waived the defense of voluntary abandonment. The SHO's order also contains consideration of the decision of the ALJ regarding Digiacinto's ability to work and whether he had voluntarily abandoned the workforce:

However, even if the issue of voluntary abandonment of employment has not been waived, the Staff Hearing Officer finds that the Administrator has not demonstrated that the Injured Worker abandoned the entire workforce for reasons unrelated to this industrial injury. As indicated previously, the Injured Worker stated that he last worked in December, 2001 following the industrial injury in this claim. The Injured Worker filed for Social Security disability benefits on 05/28/2002 due to the lumbar conditions allowed in this claim and was awarded Social Security disability benefits following a hearing on 08/22/2003. Although the standard for awarding permanent total disability benefits in this claim and awarding Social Security disability benefits are different, the Staff Hearing Officer finds that the Injured Worker has demonstrated that his absence from the workforce was due to the allowed physical conditions in this claim and not due to a voluntary decision on his part to retire or otherwise not to work. Thus, his absence from the workforce cannot be considered a "retirement", nor can it be considered voluntary. This conclusion is reinforced by the numerous MEDCO-14 Physician's Reports of Work Ability and C-84 Request for Temporary Total Compensation reports on file from the Injured Worker's treating physicians for the allowed physical conditions and newly allowed psychological conditions that indicate that he was disabled from all employment due to these conditions. In this respect, the facts of this claim are not similar to those in State ex rel. Kelsey Hayes Co. v. Grashel, 138 Ohio St.3d 297, 2013-Ohio-4959 that describes the standard for a finding of voluntary abandonment of the workforce. Accordingly, the Staff Hearing Officer rejects the argument that the Injured Worker had voluntarily abandoned the entire workforce and is therefore precluded from receiving permanent total disability benefits.

(July 5, 2016 Am. Stipulation of Evidence at 95.)

         {¶ 13} On December 15, 2015, BWC filed a request for reconsideration, which the commission approved on January 4, 2016. On February 25, 2016, the commission (with one member recusing) issued an order exercising continuing jurisdiction over the SHO's order, vacating the SHO's order, and determining that Digiacinto is ineligible for PTD compensation because he voluntarily abandoned the workforce. The commission's order, pertinent parts of which are set forth in the magistrate's decision, states that it was a clear mistake of law for the SHO to find the administrator had waived the affirmative defense of voluntary abandonment of the workforce by not asserting it in prior proceedings before BWC and the commission. The commission's order goes on to enumerate the evidence it considered when deciding that Digiacinto is ineligible for PTD application; absent from that enumeration is the 2003 decision of the ALJ finding Digiacinto was disabled as of December 2001.

         {¶ 14} Digiacinto commenced this action in mandamus on March 31, 2016, alleging the commission abused its discretion in determining that he had abandoned the workforce, rendering him ineligible to receive PTD compensation.

         {¶ 15} The magistrate's decision identifies two issues presented in this matter:

(1) whether the finding in the SHO's order of November 30, 2015 that the administrator is barred from challenging eligibility for PTD compensation on grounds of workforce abandonment constitutes a clear mistake of law on which the commission can properly exercise its continuing jurisdiction, and (2) assuming the presence of a clear mistake of law on which the commission properly exercised its continuing jurisdiction, did the commission abuse its discretion by failing to find that the decision of the SSA administrative law judge excused relator from searching for work or pursuing vocational rehabilitation, thus preserving eligibility for PTD compensation?

(App'x at ¶ 63.) The magistrate reached the following conclusions of law:

(1) the finding in the SHO's order of November 30, 2015 that the administrator is barred from challenging eligibility for PTD compensation is a clear mistake of law, and (2) the commission did not abuse its discretion by failing to find that the decision of the SSA administrative law judge excused relator from searching for work or pursuing vocational rehabilitation.

(App'x at ¶ 64.) The magistrate found that Digiacinto failed to meet his burden proving that BWC had waived its legal right to assert the defense of voluntary abandonment of the workforce. The magistrate also found Digiacinto failed to meet his burden showing that his allowed condition "independently" caused his disability. (App'x at ¶ 83.) Based on these findings, the magistrate decided that this Court should deny Digiacinto's request for a writ of mandamus.

         II. OBJECTIONS TO MAGISTRATE'S DECISION

         {¶ 16} Digiacinto presents two objections to the magistrate's decision:

I. The Magistrate erred in concluding that the industrial commission considered the decision of the Administrative Law Judge that found Relator to be incapable of work.
II. The Magistrate erred in finding that the ALJ's decision cannot be used to support a showing that Relator was incapable of returning to work and therefore did not abandon the work force.

         III. LAW AND DISCUSSION

         A. Standard of Review

         {¶ 17} To be entitled to relief in mandamus, Digiacinto 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, Digiacinto 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, Digiacinto 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 St2d 165 (1981).

         B. First Objection

         {¶ 18} The magistrate's decision identifies as one of two relevant inquiries before us "whether the commission abused its discretion by failing to find that the decision of the SSA administrative law judge excused [Digiacinto] from searching for work or pursuing vocational rehabilitation, thus preserving eligibility for PTD compensation." (App'x at ¶ 77.) The magistrate acknowledges that the commission's order "fails to even mention the decision of the administrative law judge, " but determines that the failure to mention the ALJ's decision "is not an abuse of discretion, " given the rebuttable presumption that the commission considers "all the evidence before it." (App'x at ¶ 78.) State ex rel. Lovell v. Indus. Comm., 74 Ohio St.3d 250, 252 (1996). Instead, the magistrate concludes that "the presumption here is that the commission considered the decision of the administrative law judge but rejected it as being unpersuasive as to the issue before the commission." (App'x at ¶ 80.)

         {¶ 19} Digiacinto argues that the magistrate erred in concluding that the commission had considered the ALJ's decision finding that Digiacinto was incapable of work.

         {¶ 20} Digiacinto cites to Ohio Adm.Code 4121-3-34(D)(1)(d), one of the guidelines that must be followed by the adjudicator in the sequential ...


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