[State of Ohio ex rel.] Mary C. Hobart, Relator,
Industrial Commission of Ohio and Pure Foods, LLC, Respondents.
MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION
Anthony P. Christine, for relator.
Michael DeWine, Attorney General, and Crystal R. Richie, for
respondent Industrial Commission of Ohio.
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
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
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
overruled; writ of mandamus granted.
P.J., and BRUNNER, J., concur.
on February 6, 2018
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.
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.