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State ex rel. Hobart v. Industrial Commission of Ohio and Pure Foods, LLC

Court of Appeals of Ohio, Tenth District

July 19, 2018

[State of Ohio ex rel.] Mary C. Hobart, Relator,
v.
Industrial Commission of Ohio and Pure Foods, LLC, Respondents.

          IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION

         On brief:

          Anthony P. Christine, for relator.

         On brief:

          Michael DeWine, Attorney General, and Crystal R. Richie, for respondent Industrial Commission of Ohio.

          DECISION

          DORRIAN, J.

         {¶ 1} Relator, Mary C. Hobart, has filed this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its December 13, 2016 order that denied her application for permanent total disability ("PTD") compensation, and to enter a new order granting her application.

         {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommends this court grant the request for a writ of mandamus. Specifically, the magistrate found the reports of Dr. Steven A. Cremer do not provide some evidence on which the commission could rely in determining residual functional capacity.

         {¶ 3} The commission has filed the following objection to the magistrate's decision: The Magistrate Erred By Re-weighing The Medical Evidence.

         {¶ 4} The magistrate stated the main issue is "whether the reports of Dr. Cremer provide some evidence on which the commission exclusively relied in determining residual functional capacity [pursuant to] Ohio Adm.Code 4121-3-34(B)(4)." (Appended Mag. Dec. at ¶ 31.) The commission generally argues the magistrate impermissibly reweighed the evidence and determined that the medical reports of Dr. Cremer were not some evidence upon which the commission could rely to determine residual functional capacity and, in doing so, the magistrate exceeded the appropriate level of review. The commission urges this court to reject the magistrate's decision to issue the writ of mandamus and to find that Dr. Cremer's reports is some evidence upon which the commission could rely to deny relator's application for PTD compensation.

         {¶ 5} The commission makes several specific arguments in support of its objection. First, the commission takes issue with the magistrate's analysis:

Analysis begins with the observation that relator has no industrial injury or impairment to her non-dominant left upper extremity. In rendering an opinion on the "Physical Strength Rating" form regarding the Ohio Adm.Code 4121-3-34(B)(2) classification of physical demands of work, the examining physician should consider to what extent, if any, the non-dominant left upper extremity might be useful in the performance of sedentary and/or light work. Here, Dr. Cremer does not directly address how the left upper extremity might assist the right upper extremity in the performance of the physical demands of work.
Based solely on the reports of Dr. Cremer, it is difficult to see how the severe right upper extremity impairment alone permits any light work.

(Appended Mag. Dec. at ¶ 36-37.)

         {¶ 6} The commission construes this analysis as the magistrate creating a new standard that: (1) the examining physician "should consider" the usefulness of a non-allowed condition in the performance of the physical demands of work, and (2) the examining physician should make such a notation on the physical strength rating form in violation of the requirements to provide an opinion as to the claimant's ability to work "[b]ased solely on impairment due to the allowed condition(s) in the claim." (Comm. Obj. at 4.) Such a standard, according to the commission, violates the rule outlined in State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993), that non-allowed conditions cannot be used to advance or defeat a claim for PTD compensation. Waddle stated that" '[e]ntitlement to permanent total disability compensation requires a showing that the medical impairment due to the allowed conditions, either alone or together with nonmedical disability factors, prevents claimant from engaging in sustained remunerative employment.'" Id. at 455, quoting State ex rel. LTV Steel Co. v. Indus. Comm., 65 Ohio St.3d 22, 24 (1992). We disagree with the commission that Waddle prohibits, in this case, consideration of how the left upper extremity might assist the right upper extremity in the performance of the physical demands of light work. Such consideration is not the same as consideration of a non-allowed condition as the basis of an award for PTD. To the contrary, focusing solely on the impairment due to the allowed condition of the upper right extremity, Dr. Cremer opined there was a 43 percent upper extremity impairment which is equivalent to a 26 percent whole person impairment. The magistrate's analysis does not violate Waddle. Furthermore, we do not construe the magistrate's analysis as creating a new standard but, rather, as an observation regarding how the left upper extremity might assist the right upper extremity in this case given Dr. Cremer's restrictions on the right upper extremity.

         {¶ 7} Second, the commission argues that contrary to the magistrate's conclusion, "Ohio Adm.Code 4121-3-34(B)(2) does not require Dr. Cremer to 'consider to what extent, if any, the non-dominant left upper extremity might be useful in the performance of sedentary and/or light work, '" but, rather, simply classifies the physical demands of particular types of work. (Comm. Obj. at 4, quoting Appended Mag. Dec. at ¶ 36.) However, while Ohio Adm.Code 4121-3-34(B)(2) does not require consideration of how the left upper extremity might assist the right upper extremity in the performance of the physical demands of work, in this case, such consideration would have served to explain how relator could or could not comply with the demands of light-duty work given Dr. Cremer's restrictions on the right upper extremity.

         {¶ 8} Third, the commission argues the magistrate improperly determined that Dr. Cremer's opinion failed to meet the criteria for light-duty work and to observe that Dr. Cremer's restrictions against repetitive gripping, pulling, or pushing is inconsistent with the definition of light work as defined in Ohio Adm.Code 4121-3-34(B). The commission points to State ex rel Rice v. J.P. Industries, Inc., 10th Dist. No. 97APD01-3 (Feb. 10, 1998) (memorandum decision) for the proposition that a physician may choose a category of work as set forth in Ohio Adm.Code 4121-3-34(B) and, at the same time, limit certain physical activities within that category. According to the commission, an injured worker need not be able to perform every job within a particular work category. However, we are mindful of our conclusion in State ex rel. O'Brien v. Cincinnati Inc., 10th Dist. No. 07AP-825, 2008-Ohio-2841, ¶ 10, that the commission cannot simply rely on a physician's "bottom line" identification of an exertional category without examining the specific restrictions imposed by the physician to make certain that any physical restrictions the physician lists correspond with an ability to actually perform at the exertional level indicated by the physician. Dr. Cremer imposed several restrictions: "[n]o repetitive gripping, pulling or pushing with [right] hand. No weight bearing on right hand." (Appended Mag. Dec. at ¶ 26.) Examination of the specific restrictions imposed by Dr. Cremer was not improper.

         {¶ 9} Finally, the commission argues the commission may accept all, none, or any portion of any expert report and is not required to give special weight to any particular vocational or medical report. State ex rel. Ellis v. McGraw Edison Co., 66 Ohio St.3d 92 (1993). However, as noted above, the commission must examine the specific restrictions imposed by a physician and actually make certain that such restrictions correspond with an ability to actually perform at the exertional level indicated by the physician. Furthermore, in issuing the writ of mandamus, we are not, as the commission suggests, second-guessing the medical correctness of Dr. Cremer's opinion but, rather, requiring the commission to conduct such examination.

         {¶ 10} Upon review of the magistrate's decision, an independent review of the record, and due consideration of the commission's objection, we find the magistrate has properly determined the pertinent facts and applied the appropriate law. We therefore overrule the commission's objection to the magistrate's decision and adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. Accordingly, the requested writ of mandamus is hereby granted.

         Objection overruled; writ of mandamus granted.

          BROWN, P.J., and BRUNNER, J., concur.

         APPENDIX

         Rendered on February 6, 2018

         IN MANDAMUS

         MAGISTRATE'S DECISION

          KENNETH W. MACKE MAGISTRATE.

         {¶ 11} In this original action, relator, Mary C. Hobart, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its December 13, 2016 order that denies her application for permanent total disability ("PTD") compensation, and to enter an order granting the application. Findings of Fact:

         {¶ 12} 1. On January 3, 2014, relator injured her right hand while employed as a "plater" for respondent Pure Foods, LLC, a state-fund employer. The industrial claim (No. 14-30018) is allowed for:

Contusion of right fourth finger; closed fracture distal phalanx right hand second finger; crushing injury right second finger; crushing injury right fourth finger; right carpal tunnel syndrome; trigger finger right fourth finger.

         {¶ 13} 2. Relator began receiving temporary total disability ("TTD") compensation.

         {¶ 14} 3. On November 24, 2015, at the request of the Ohio Bureau of Workers' Compensation ("bureau"), relator was examined by Karen Gade-Pulido, M.D. In her four-page narrative report, Dr. Gade-Pulido states:

History according to the injured worker
Ms. Hobart is a 75-year-old, right-hand-dominant female who reports that she was injured while working on a conveyor line distributing food when the ceiling sprung a leak and her boss asked that they remove the food towers. She was rolling these out with the help of a colleague who smashed the right hand in between two of the towers. She went to the ER and was diagnosed with a hand fracture. She had the hand splinted and was eventually referred to therapy. Despite this, she continued to have persistent hand pain and developed triggering of the 4th digit. She ultimately had a surgical release of the carpal tunnel and the right 4th trigger finger. This surgery was performed a year ago and has been followed by extensive therapy. * * *
She lives alone and manages all of her activities of daily living on her own. She continues to drive. She uses her left hand for driving. She has not returned to work since this injury and feels that she cannot return to work given her right-hand-dominance and continued symptoms in the right hand. She does not believe that she is young enough to consider taking some other job, unless it were to be just sitting and answering a phone.
She reports residual numbness in the right 4th finger and burning in the right palm. She also has scar tissue that makes her hand feel tight and stiff. She runs the hand under warm water in the mornings to reduce the stiffness. She notes persistent swelling on the dorsum of the right hand. She rates her hand pain as 6-8/10, which she states is constant. ...

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