The State ex rel. Giant Eagle, Inc., Relator,
Ohio Industrial Commission et al., Respondents.
Henrikson & Greve, Kirk R. Henrikson, and Jesse P.
Kanner, for relator.
Yost, Attorney General, and Jacquelyn McTigue, for respondent
Industrial Commission of Ohio.
Heller, Maas, Moro, & Magill, Co. LPA, and Patrick J.
Moro, for respondent Richard Gewak.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S
1} This matter comes before us on the timely
objections of respondent Richard Gewak to the
magistrate's January 29, 2019 decision recommending that
we issue a writ of mandamus ordering the Industrial
Commission of Ohio to reconsider its conclusion that Mr.
Gewak is entitled to permanent total disability compensation.
2} Pursuant to Civil Rule 53(D)(4)(d), we
"undertake an independent review as to the objected
matters to ascertain [whether] the magistrate has properly
determined the factual issues and appropriately applied the
law." Because our independent review leads us to
determine that mandamus is not warranted, we reject the
magistrate's decision and enter judgment denying the
requested writ. We will return to the magistrate's ruling
and the briefing on objections in due course, but for clarity
of analysis we proceed first by describing matters afresh
from our perspective as informed by the administrative
3} The Industrial Commission argues that "[t]he
commission itself is the vocational expert" with regard
to claims of permanent total disability benefits, and that
courts are not to "reevaluate and reweigh the evidence
before the commission." It argues that a commission
determination is to be upheld where there is" 'some
evidence' to support its decision." It argues
that" 'it is not critical or even necessary for the
commission to accept or rely upon a vocational report,
'" saying "the commission is not required to
explain why it rejects any report." And it argues that
the fact that a hearing officer "did not discuss every
report in the administrative record does not support a
conclusion that the reports submitted * * * were not reviewed
4} The commission argues all that. Regularly. Just
not in this case. Compare Brief of Respondent
Industrial Commission of Ohio in State ex rel, Denton v.
Indus. Comm., 10th Dist. No. 18AP-100 (Respondent's
Aug. 22, 2018 Brief at 1, 8, 12, 13, 14) (making those
arguments in case argued the day after this one was
submitted), with Concession Brief of Respondent Industrial
Commission of Ohio filed in this case a month earlier on July
24, 2018 (not so much).
5} In this case, a staff hearing officer
awarded permanent total disability benefits to a 65-year-old
meat cutter named Richard Gewak, who after graduating from
high school had worked for Giant Eagle and its predecessor
for roughly 45 years. Stipulated Ex. BB, Sept. 19, 2017 SHO
ruling; Stipulated Ex. T, Jan. 27, 2017 VocWorks Report at 4.
6} The record reflects that Mr. Gewak worked on his
feet, cutting meat and stacking heavy loads. See,
e.g., Stipulated Ex. FF, Sept. 19, 2017 Tr. at 11. Mr.
Gewak began his work for a Giant Eagle forerunner in May of
1969. Id. at 7. He injured his back in 2001 while
hoisting 40 pounds of turkey; was allowed a workers
compensation claim for certain related conditions; returned
to work, with some months on total temporary disability in
2007 and in 2012; performed his last day of work in June 2013
and eventually required surgery in 2014; was found to have
obtained maximum medical improvement as of May 2016; and
filed his application for permanent total disability in 2017,
which the hearing officer granted as effective as of June
2016. See Stipulated Ex. A; Stipulated Ex. FF, Sept.
19, 2017 Tr. at 4-18; Stipulated Ex. BB, Sept. 19, 2017 SHO
ruling at 1-2.
7} Giant Eagle then requested that the Industrial
Commission reconsider the staff hearing officer's order.
See Stipulated Ex. CC, Request for Reconsideration.
Asserting that reconsideration was proper because "the
Order of the Staff Hearing Officer represents a clear mistake
of fact and law," id., Memo. in Support of
Recons. at 4, Giant Eagle emphasized its view that the
hearing officer erred by relying on a vocational report from
vocational specialist Shannon Valentine of Valentine VocRehab
LLC that "does not even discuss any type of vocational
retraining that could be done," id. at 1;
Stipulated Ex. AA (Valentine report). Giant Eagle highlighted
in bold, there as here, findings that it thought should have
been given weight from Amy Rumrill of VocWorks, who reported
in January of 2017 that Mr. Gewak said he "does not want
to work and that Giant Eagle does not have jobs he can
do." Memo in Support of Recons. at 2 (bolding omitted);
see also id. at 3, 4 (regarding VocWorks report from
January and a paper review of August 2017).
8} Mr. Gewak responded that "a review of the
transcript from [the staff hearing officer's hearing]
reveals that Mr. Gewak's comments to Ms. Rumrill were
clarified" by explaining that "he did not want to
get out of work." Stipulated Ex. DD, Memo. in Opp. to
Recons. at 2. "He goes on to explain that, '* * *
here up in my mind, it's like-you know, it's telling
me I want to work, but then my back's telling me I
can't go back * * * [I] just couldn't do it no more.
I mean, standing, cutting, and I * * * I fell. I still wanted
to work 'til [age] 67, and-but, you know, up here, I
just-you know, I want to work, but then my pain, I says, I
just can't do it no more.'" Id. at 2.
9} With the Rumrill report issue thus clearly
presented, the commission denied Giant Eagle's
"timely" request for reconsideration. See
Compl. in Mandamus at ¶ 23, 24. The request, the
commission found, "fails to meet the criteria of
Industrial Commission Resolution R08-1-01 dated
11/01/2008." Stipulated Ex. EE (noting that the denial
"was approved and confirmed by the majority of the
members"). That publicly posted commission resolution
establishing "Reconsideration Guidelines"
acknowledges and later returns to the point that
"continuing jurisdiction of the Industrial Commission is
not unlimited and that its prerequisites are: (1) new and
changed circumstances; (2) fraud; (3) clear mistake of fact;
(4) clear mistake of law; or (5) error by inferior tribunal
[rendering the order defective]." Ohio Industrial
Commission Reconsideration Guidelines, R08-1-01 (Nov. 1,
2008), at 1, 2. The commission's denial of
reconsideration left the staff hearing officer's
10} The commission thus having disclaimed further
continuing jurisdiction, Giant Eagle asks us to issue a writ
of mandamus directing the commission to reverse its order
that grants Mr. Gewak permanent total disability status.
Compl. at 4. As it must in order to prevail here, Giant Eagle
says that it has a clear legal right to such relief, and that
the commission has a clear legal duty to provide it, because
the staff hearing officer's order "is not supported
by any evidence in the administrative record."
Relator's Brief at 9-10 (citing State ex rel. Elliott
v. Indus. Comm., 26 Ohio St.3d 76 (1986), which recites
at page 79 that a right to mandamus "may be established
only if the record is devoid of some evidence to support the
11} The centerpiece of Giant Eagle's argument,
in essence, has been that the hearing officer's decision,
while explicitly referring to the "functional capacity
evaluation performed by Amy Rumrill," improperly
"ignores the fact" that the assessment reflects, in
Giant Eagle's words, that "Gewak's own lack of
desire and/or motivation to work is what is preventing him
from active participation in vocational services."
Relator's Brief at 13, 15 (also arguing at 18 that while
the hearing officer "does cite" the findings of
examining Dr. Bartos, too, the decision did not accord those
findings appropriate significance).
12} The commission had those findings and arguments
before it when it denied Giant Eagle's request for
reconsideration. See, e.g., Stipulated Ex. CC,
Recons. Request and Memo.; Stipulated Ex. DD, Memo. In Opp.
But here's the twist. In its briefing to this court, the
commission seeks to reclaim the jurisdiction over this matter
that it earlier had disclaimed.
13} The commission's "Concession Brief says
that the body "did not consider the necessary
non-medical factors when it adjudicated Gewak's PTD
application," and then elucidates the point: Because
"the SHO did not explicitly address the lack of
participating in rehabilitation or cite to the alleged
testimony of Gewak that clarified why he appeared
disinterested [sic] in participating in rehabilitation,"
the commission "concedes" that the hearing
officer's decision erred as a matter of law in not
"addressing whether Gewak had the capacity to reasonably
develop other" remunerative skills. Concession Brief of
Respondent at 1, 4-5. But the commission sells itself short,
as we will elaborate below.
14} Because we decline on this record to allow the
commission to use this litigation stance to reclaim
continuing jurisdiction that it already abjured in denying
Giant Eagle's request for reconsideration, and because we
find that the commission's determination that Mr. Gewak
is "precluded from engaging in all sustained
remunerative employment, and thus permanently and totally
disabled" in fact is supported by "some
evidence," see Elliott, 26 Ohio St.3d at 79
(citations omitted), we will conclude that the commission did
not abuse its discretion in this matter and we consequently
will deny the writ of mandamus requested by Giant Eagle.
15} The hearing officer was not presented only with
Ms. Rumrill's characterizations of what she saw as Mr.
Gewak's disinclination to pursue vocational
rehabilitation. To be sure, that assessment did feature
significantly at the hearing, see, e.g., Tr. at 21
(Hearing Officer: "I got that right here"), having
been raised by Mr. Gewak's lawyer and discussed by Mr.
Gewak himself, id. at 22-23, and of course having
been emphasized by Giant Eagle, id. at 33, 37-41;
see also id. at 39 (hearing officer notes related
case citations provided by Giant Eagle). But the hearing
officer also was presented other materials, including the
"Employability Assessment" of Valentine VocRehab
LLC. See Stipulated Ex. AA; Tr. at 24-25. Indeed,
the hearing officer concluded the hearing by mentioning the
Valentine report, even while saying that he would take the
Rumrill assessment "for what it's worth."
Id. at 45.
16} The report from Vocational Specialist Shannon
Valentine observed Mr. Gewak's "considerable
difficulty with both sitting and standing for any appreciable
amount of time"; it acknowledged test scores reflecting
"considerable difficulty when attempting to perceive
tabular material," and the like, suggesting (contrary to
the VocWorks file review of August 29, 2017 at 8-9) that Mr.
Gewak "would not be a viable candidate for entry level,
sedentary clerking related work"; and it noted
"decreased stamina and endurance for even sedentary
activities," accompanied by "decreased focus and
concentration as noted on the Minnesota Clerical Test."
Stipulated Ex. AA at 2, 3, 4-5. In sum, it determined that
"Vocational Rehabilitation is
contraindicated," concluding that "it is the