The State ex rel. Patricia Denton, Relator,
Industrial Commission of Ohio et al., Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Law Office, and Robert B. Bumgarner, for relator.
Yost, Attorney General, and Sherry M. Phillips, for
respondent Industrial Commission of Ohio.
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
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.
** * Claimant's age of 75 is a barrier to re-employment *
* * [h]owever * * * this need not be an insurmountable
** * 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
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
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