The State ex rel. Dolores J. Guilfoyle, Relator,
Industrial Commission of Ohio and Big Lots, Inc., Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
& Cade, and Dennis A. Becker, for relator.
Miller LLP, William J. Barath and Jennifer M. McDaniel, for
respondent Big Lots, Inc.
Michael DeWine, Attorney General, and Jacquelyn McTigue, for
respondent Industrial Commission of Ohio.
1} Dolores J. Guilfoyle filed this action in
mandamus seeking a writ to compel the Industrial Commission
of Ohio ("commission") to grant her application for
permanent total disability ("PTD") compensation.
Failing that, she requests that the order denying her PTD
compensation be vacated and the commission be compelled to
conduct additional proceedings.
2} In accord with Loc.R. 13(M) of the Tenth District
Court of Appeals, the 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 includes a recommendation that
we deny the request for a writ.
3} Counsel for Guilfoyle has filed objections to the
magistrate's decision. Counsel for her former employer,
Big Lots, Inc. ("Big Lots"), has filed a memorandum
in response. Counsel for the commission has filed a similar
memorandum. The case is now before the court for a full,
4} Guilfoyle suffered two sets of injuries while
employed by Big Lots. In April 2001, she suffered a set of
injuries to her right shoulder according to the complaint she
filed in mandamus. In May 2005, she suffered injuries to her
neck, including a variety of injuries at the C-5, C-6 and C-7
5} The magistrate's decision indicates that the
2001 injuries were actually injuries to Guilfoyle's lower
back, specifically being recognized as lumbar sprain/strain
and lumbar radiculitis, left.
6} Guilfoyle left her employment with Big Lots
because she felt she was no longer physically capable of
performing her work there. She spent six months working as a
nail technician, but quit that job because she felt she was
aggravating her problems with her cervical spine.
7} Guilfoyle applied for and received temporary
total disability ("TTD") compensation for a period
of time but the TTD compensation ended following a finding
that she had reached maximum medical improvement
8} In April 2015, she was awarded permanent partial
disability of 25 percent.
9} In June 2016, she applied for PTD compensation.
She was then 62 years of age.
10} Guilfoyle's treating chiropractor provided a
report indicating that, in his view, she was entitled to PTD
11} Guilfoyle was independently examined by Gary L.
Ray, M.D., who also reported that she was entitled to PTD
compensation. This conflicted with a report from Richard E.
Deerhake, M.D. who felt that Guilfoyle could return to her
former position as a manager with Big Lots provided that she
worked under restrictions against lifting greater than ten
pounds and was not required to frequently bend or twist.
12} Guilfoyle's application for PTD compensation
was heard before a staff hearing officer ("SHO") in
January 2017. The confusion about what conditions had been
recognized as a result of the April 2001 injuries apparently
continued. The SHO denied PTD compensation based on the
independent finding that Guilfoyle had abandoned the
workforce. The issue of her alleged abandoning of the
workplace is front and center in this mandamus action, but
frankly should not be, as explained below.
13} The SHO had before him/her two medical reports
which claimed that Guilfoyle was incapable of sustained
remunerative employment due to her earlier injuries. If
either of these reports were believable, then she could not
be said to have abandoned a workforce she was incapable of
rejoining. The SHO needed to address the merits and
believability of all the medical reports before skipping
ahead to the abandonment issue.
14} The issue of entitlement to TTD compensation is
a totally separate issue. A claimant has her TTD compensation
stop when she is adjudicated to reach a medical plateau
called MMI. The stability can be the result of a new ability
to return to work or can be stability in a range where