The State ex rel. Pilarczyk, Appellee,
Geauga County et al.; Industrial Commission of Ohio, Appellant.
Submitted April 23, 2019
from the Court of Appeals for Franklin County, No. 17AP-174,
Dworken & Bernstein Co., L.P.A., Stacy M. Callen, and
Patrick J. Perotti, for appellee.
Yost, Attorney General, and Jacquelyn McTigue, Assistant
Attorney General, for appellant.
1} The Tenth District Court of Appeals held that
appellant, Industrial Commission of Ohio, abused its
discretion by relying on a report by a licensed psychologist
to deny the request of appellee, Joshua N. Pilarczyk, for
permanent-total-disability ("PTD") compensation
because the report is equivocal and therefore is not proper
evidence to support the commission's determination. The
Tenth District issued a limited writ of mandamus ordering the
commission to vacate its order, to adjudicate Pilarczyk's
request for PTD compensation in conformity with the
court's decision, and to enter a new order. We affirm the
Tenth District's judgment and deny Pilarczyk's motion
for oral argument.
FACTS AND PROCEDURAL BACKGROUND
2} Pilarczyk sustained a back injury in 2002 while
working as a maintenance worker for Geauga County. His
workers' compensation claims were allowed for various
spinal and psychological conditions. He received
temporary-total-disability compensation until June 15, 2015.
In July 2015, Pilarczyk applied for PTD compensation.
3} In 2015, Pilarczyk underwent a series of physical
and psychological examinations. In January, his treating
orthopedic physician, Dr. Michael Kellis, opined that
Pilarczyk's physical conditions would continue
indefinitely "without any present indication of
recovery," that his injuries prevented him from engaging
in "any gainful employment," and that he was
permanently and totally disabled as a direct result of his
4} In April, Dr. Kenneth Gruenfeld undertook an
independent psychological evaluation of Pilarczyk at the
request of the Bureau of Workers' Compensation. The
purpose of the evaluation was to obtain Dr. Gruenfeld's
opinions regarding the extent of Pilarczyk's
psychological disability, the medical necessity and
appropriateness of Pilarczyk's treatment, and the
potential for Pilarczyk to return to work. In his report, Dr.
Gruenfeld responded to six questions posed by the bureau. In
response to question No. 1, Dr. Gruenfeld opined that
Pilarczyk had reached maximum medical improvement
("MMI") with respect to his psychological
conditions. Question Nos. 2 and 3 and Dr. Gruenfeld's
responses to those questions were as follows:
2. Can the injured worker return to his/her former
position of employment? If yes, are there any restrictions or
The claimant's mental health issues likely do prevent him
from returning to his former position of employment. His
problems with depression continue to manifest including
problems with focus and motivation. It is believed that his
problems with distractibility and motivation inhibit his
ability to return to work at this time.
3. Please provide a summary of any functional
limitations solely due to the psychological condition in this
claim. In other words, please indicate the type of work the
injured worker can perform and supportive rational[e] for
Given his current mental health issues, he is unlikely to
thrive in a moderate to high stress job setting. He is more
likely able to work a job in an office where there is less
stress to trigger his depressive based condition.
(Boldface sic.) In response to question No. 4, Dr. Gruenfeld
recommended vocational rehabilitation for Pilarczyk and
expressed his opinion that "he may be able to manage a
vocational rehabilitation program at this time." In
response to question Nos. 5 and 6, Dr. Gruenfeld restated his
belief that Pilarczyk had reached MMI and stated that
Pilarczyk was no longer obtaining any benefits from
psychotherapy and should complete his treatment goals and
finalize the termination of therapy over the ensuing five
5} After Pilarczyk applied for PTD compensation, the
commission referred him to musculoskeletal specialist Dr.
Bina Mehta for a physical assessment and to Dr. Joseph P.
Pecorelli for a psychological assessment. Both found that
Pilarczyk had reached MMI for his allowed conditions. Dr.
Mehta opined that based solely on Pilarczyk's allowed
physical conditions, he "could perform work
within the sedentary work capacity category" though he
would require breaks and an ambulatory assistive device. Dr.
Pecorelli opined, however, that Pilarczyk's "ongoing
symptoms of emotional distress * * * would prove to be
barriers for any return to gainful employment" and that
Pilarczyk was "incapable of work."
6} In October 2015, a commission staff hearing
officer ("SHO") issued a tentative order granting
Pilarczyk's application for PTD compensation based on Dr.
Pecorelli's report. The bureau submitted a notice of
appeal, arguing that PTD compensation should be denied
because Dr. Gruenfeld's report had stated that Pilarczyk
was likely able to work in an office job and that he could
participate in vocational rehabilitation. The bureau also
stated that Pilarczyk had declined rehabilitation.
7} In June 2016, a different SHO issued an order
denying Pilarczyk's application for PTD compensation
based on the reports of Drs. Mehta and Gruenfeld and on
nonmedical factors. The order did not mention Dr.
Pecorelli's report or his conclusion that Pilarczyk was
incapable of work. It instead stated with respect to
Pilarczyk's psychological condition, "Dr. Gruenfeld
opines Injured Worker is capable of work in a low stress
job." Pilarczyk twice moved for reconsideration, arguing
in part that the commission's reliance on Dr.
Gruenfeld's report was improper because the report is
equivocal and "internally inconsistent." The
commission denied both requests.
8} In March 2017, Pilarczyk filed a complaint for a
writ of mandamus in the Tenth District. He claimed that the
commission had abused its discretion by denying his request
for PTD compensation in reliance on Dr. Gruenfeld's
report, reiterating his assertions that the report is
equivocal and that equivocal medical opinions do not
constitute evidence on which the commission may rely.
Pilarczyk specifically argued that Dr. Gruenfeld's report
does not unequivocally state that Pilarczyk can work
or that he can engage in vocational rehabilitation
and that even if the court found that Dr. Gruenfeld's
report does state that he could work, the report is
contradictory because it also says that his "problems
with distractibility and motivation inhibit his ability to
return to work at this time." The commission countered
that the report is not equivocal.
9} The Tenth District's magistrate agreed with
Pilarczyk that the commission abused its discretion by
denying PTD compensation based on Dr. Gruenfeld's report.
Although the magistrate concluded that Dr. Gruenfeld's
response to the third question could be accepted as Dr.
Gruenfeld's opinion that Pilarczyk is capable of working
in a low-stress job, the magistrate found that Dr.
Gruenfeld's report should be excluded as evidence because
Dr. Gruenfeld responded ambiguously to question No. 2. Dr.
Gruenfeld's response to question No. 2 states both that
Pilarczyk's mental-health issues "prevent him from
returning to his former position of employment"
and that "his problems with distractibility and
motivation inhibit his ability to return to work at
this time." (Emphasis added.) The magistrate noted that
"former position of employment" has a specialized
meaning in workers' compensation law and found that it
was unclear whether the phrase "return to work"
referred solely to a return to Pilarczyk's former
position or "whether Dr. Gruenfeld intended to stray
beyond the scope of the second query and to offer an opinion
that [Pilarczyk] cannot return to any work at this
time." 2018-Ohio-1478, ¶ 41-43. The magistrate
stated that it was not the court's role to resolve this
ambiguity and determined that "Dr. Gruenfeld's
report must be eliminated from further evidentiary
consideration unless he subsequently resolves the
ambiguity." Id. . at ¶ 44.
10} The Tenth District overruled the
commission's objection to the magistrate's decision,
adopted the decision, and issued a writ of mandamus ordering
the commission to vacate its order denying PTD compensation
and to enter a new order adjudicating Pilarczyk's
application in conformity with the court's decision. The
commission appealed the Tenth District's judgment.