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State ex rel. Guilfoyle v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

June 21, 2018

The State ex rel. Dolores J. Guilfoyle, Relator,
Industrial Commission of Ohio and Big Lots, Inc., Respondents.


          Becker & Cade, and Dennis A. Becker, for relator.

          Ice 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.


          TYACK, J.

         {¶ 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, independent review.

         {¶ 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 levels.

         {¶ 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 ("MMI").

         {¶ 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 compensation.

         {¶ 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 sustained ...

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