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State ex rel. Giant Eagle, Inc. v. Ohio Industrial Commission

Court of Appeals of Ohio, Tenth District

May 30, 2019

The State ex rel. Giant Eagle, Inc., Relator,
Ohio Industrial Commission et al., Respondents.

          Matty, Henrikson & Greve, Kirk R. Henrikson, and Jesse P. Kanner, for relator.

          Dave 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.



          NELSON, J.

         {¶ 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 record.

         {¶ 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 and considered."

         {¶ 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 determination intact.

         {¶ 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 commission's order").

         {¶ 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 opinion ...

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