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State ex. rel. Denton v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

August 8, 2019

The State ex rel. Patricia Denton, Relator,
v.
Industrial Commission of Ohio et al., Respondents.

          IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Jurus Law Office, and Robert B. Bumgarner, for relator.

          Dave Yost, Attorney General, and Sherry M. Phillips, for respondent Industrial Commission of Ohio.

         Argued:

          Robert B. Bumgarner.

          Sherry M. Phillips.

          DECISION

          BEATTY BLUNT, J.

         {¶ 1} Relator, Patricia Denton, has filed an original action seeking a writ of mandamus to order the Industrial Commission of Ohio ("commission") to vacate its order denying her application for permanent total disability ("PTD") compensation.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} Denton previously sustained two work related injuries for which she received benefits under Ohio's workers' compensation system.

         {¶ 3} First, in 1993, when she was employed by respondent Peyton, Inc., Denton had the following allowed claim: lumbar myositis; aggravation of pre-existing lumbar injury; herniated disc L4-5; lumbar spondylosis; intervertebral disc degeneration L4-5 and L5-S1; aggravation of dysthymia. (Claim No. 93-951.)

         {¶ 4} Then, in 2007, Denton was injured in the course of her employment with respondent Safelite Auto Glass and had the following allowed claim: sprain left distal tibiofibular; sprain of left knee and leg; substantial aggravation of left knee medial femoral chondromalacia; substantial aggravation of subchondral cyst left knee. (Claim No. 07- 350191.)

         {¶ 5} On September 24, 2015, Denton filed an application for PTD compensation. At the time she applied, Denton was 73 years old and had not worked since 2011. (See Sept. 21, 2017 SHO Order at 1.) The staff hearing officer ("SHO") denied Denton's application for PTD compensation on September 21, 2017. The SHO reviewed "[a]ll file evidence" and considered it in reaching his conclusion. (SHO Order at 2.) The SHO reached the following conclusions before ultimately finding that Denton "is not permanently and totally disabled" and is not entitled to PTD compensation:

Claimant retains the residual physical ability to perform up to light level employment.
* * * Claimant retains the residual psychological capacity to perform any work that she is otherwise physically capable of performing, subject to the restrictions specified by Dr. Finnerty.
** * Claimant's age of 75 is a barrier to re-employment * * * [h]owever * * * this need not be an insurmountable barrier.
** * Claimant's level of education (tenth grade plus GED with business skills training) [is] a distinct asset to reemployment in that it is more than adequate for many entry level sedentary and light levels of employment.
** * Claimant's work history [is] an asset to re-employment in that it is indicative of an individual with a strong work ethic and stable work profile. * * *.
** * [T]here is no persuasive evidence in the file to indicate that the claimant, at the very least, would be incapable of obtaining new job skills (if needed) via on-the-job training.

         (SHO Order at 2.)

         {¶ 6} Denton filed a request for reconsideration, but it was denied by the commission on October 18, 2017.

         {¶ 7} Denton then filed this mandamus action.

         {¶ 8} 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 considered the action on its merits and issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate determined that the commission did not abuse its discretion in finding that Denton was not entitled to PTD compensation and has recommended that this court deny the request for a writ of mandamus.

         {¶ 9} Denton filed objections to the magistrate's decision. First, Denton objects to the magistrate's finding that the record does not reflect that the commission failed to consider vocational evidence from the Bureau of Vocational Rehabilitation ("BVR"). Second, Denton objects to the magistrate's finding that the commission did not abuse its discretion because the BVR assumed Denton ...


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