State ex rel. Stevens v. Indus. Comm.
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[Cite as State ex rel. Stevens v. Indus. Comm., 2013-Ohio-2448.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Sophia Stevens,
:
Relator,
:
v.
:
No. 10AP-1147
Industrial Commission of Ohio and
Fountain Park Nursing Home,
:
(REGULAR CALENDAR)
:
Respondents.
:
D E C I S I O N
Rendered on June 13, 2013
Portman, Foley & Flint, LLP, and Frederic A. Portman, for
relator.
Michael DeWine, Attorney General, and John R. Smart, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
SADLER, J.
{¶ 1} Relator, Sophia Stevens, filed an original action seeking a writ of mandamus
ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order
denying her application for permanent total disability ("PTD") compensation and to enter
an order granting her application.
I. BACKGROUND
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate. The magistrate issued detailed findings
of fact that were adopted in their entirety by this court in State ex rel. Stevens v. Indus.
No. 10AP-1147
2
Comm., 10th Dist. No. 10AP-1147, 2012-Ohio-4408 ("Stevens I"). We incorporate those
findings of fact here, but for ease of discussion, provide a brief recitation of the facts
relevant to this decision.
{¶ 3} After a staff hearing officer ("SHO") granted relator's request for PTD
compensation, the Administrator of the Ohio Bureau of Workers' Compensation
("administrator") requested reconsideration. Subsequent to a hearing held on July 15,
2010, the commission vacated the SHO's order and denied relator's application for PTD
compensation.
Specifically, the commission found that although relator did not
voluntarily abandon her employment, she was nonetheless not entitled to PTD
compensation because she was found able to perform sustained remunerative
employment. With respect to the order, chairperson Gary M. DiCegelio voted "no,"
commissioner Jodie M. Taylor voted "yes," and commissioner Kevin R. Abrams, who was
absent from the hearing, voted "yes." As set forth in Stevens I, Abrams' addendum to the
order states:
On 08/10/2010, I discussed this matter with Regina Miller
who was present at the 07/15/2010 hearing. Staff Hearing
Officer Regina Miller summarized the testimony, evidence
and arguments presented at hearing. After this discussion and
a review of all of the evidence contained with the claim file, I
vote to grant Administrator's reconsideration, filed 04-132010. I vote to vacate the Staff Hearing Officer's order, issued
03/31/2010. I vote to deny the Injured Worker's application
for permanent and total disability, filed 10/08/2009.
Stevens I at ¶ 43.
{¶ 4} This mandamus action followed. The magistrate concluded the commission
did not have continuing jurisdiction over the SHO's March 29, 2010 order and, therefore,
recommended that this court grant relator's requested writ of mandamus. In Stevens I,
this court sustained the objection of the commission and denied relator's request for a
writ of mandamus on the question of continuing jurisdiction. Additionally, this court
returned the matter to the magistrate to determine whether relator had met her burden of
proving that the commission abused its discretion by denying PTD compensation.
{¶ 5} The magistrate's decision rendered in response to Stevens I is appended to
this decision. The magistrate's decision incorporates the findings of fact set forth in
No. 10AP-1147
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Stevens I, and sets forth conclusions of law. The magistrate addressed two issues: (1)
whether the vote of commissioner Abrams, who was absent from the July 15, 2010
hearing, deprived relator of due process of law under State ex rel. Ormet Corp. v. Indus.
Comm., 54 Ohio St.3d 102 (1990), and its progeny, and (2) whether the commission
examined relator for all the allowed conditions of the industrial claim. In conclusion, the
magistrate recommends that this court issue a writ of mandamus ordering the
commission to vacate the portion of its July 15, 2010 order determining that relator is not
permanently and totally disabled, to conduct an additional hearing on relator's PTD
application with all three commissioners present and participating, or conduct an
additional hearing with a sufficient record of proceedings such that the necessary
credibility determinations can be made by all the commissioners.
II. COMMISSION'S OBJECTIONS
{¶ 6} The commission has filed the following two objections to the magistrate's
decision:
Where this Court has held the commission did not abuse its
discretion in issuing an order exercising continuing
jurisdiction, it has also determined that the commission
provided the claimant with meaningful consideration of the
issues presented at hearing. The magistrate erred when it
then found the order violated the claimant's due process
rights.
The magistrate erred in requiring an absent commissioner to
review a record transcript in order to vote on Stevens' PTD
application. Due process requires a commissioner who was
absent from a hearing to "meaningfully consider" the issues
raised at hearing before voting. A "meaningful consideration"
is not limited to a review of a transcript, audio or videotape,
but may include a written or verbal report or summary
prepared by a commission staff member who had attended
the hearing.
(Emphasis deleted.)
III. DISCUSSION
{¶ 7} In its first objection, the commission contends the magistrate's decision is
inconsistent with this court's decision rendered in Stevens I because, in that decision, this
No. 10AP-1147
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court made the specific finding that the commission's July 15, 2010 order was valid. We
do not find the commission's position well-taken.
{¶ 8} The issue before this court in Stevens I was whether the magistrate was
correct in his conclusion that the record contained no evidence that the issue of voluntary
abandonment had been raised before the SHO. This court determined the commission's
order constituted evidence that the issue had been previously raised. In Stevens I,
whether the record established that the voluntary abandonment issue had been timely
raised was not dependent upon a credibility determination, which is the basis for both the
magistrate's recommendation and his finding that relator was deprived of due process.
Contrary to the commission's assertion, this court in Stevens I did not determine the
appropriateness of the commission's finding that relator did not voluntarily abandon the
workforce as that finding has not been challenged either in Stevens I or at this juncture.
{¶ 9} To the extent the commission is challenging the magistrate's lead statement
in paragraph 28 of the magistrate's decision, i.e., "[w]hile relator's testimony was found to
be credible on the voluntary abandonment issue," we agree that said statement is in error
since relator's testimony regarding voluntary abandonment has neither been assessed nor
challenged. Therefore, we strike said phrase from paragraph 28 of the magistrate's
decision. However, we disagree with the commission's contention that this requires a
rejection of the magistrate's decision as being inconsistent with the decision rendered in
Stevens I and conclude the magistrate's decision is not inconsistent with the same.
{¶ 10} Accordingly, the commission's first objection is overruled.
{¶ 11} In its second objection, the commission challenges the magistrate's
conclusion that relator was denied due process. This issue has been thoroughly addressed
in the magistrate's decision and we agree with the magistrate's application of recent
decisions from this court to the matter currently before us. For the reasons stated in the
magistrate's decision, we do not find merit to the commission's arguments raised in the
second objection to the magistrate's decision.
{¶ 12} Accordingly, the commission's second objection is overruled.
No. 10AP-1147
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IV. MOTIONS
{¶ 13} This court rendered its decision in Stevens I on September 27, 2012. On
May 10, 2013, relator filed a motion asking this court to reconsider said decision. On
May 28, the commission filed a motion to strike relator's motion for reconsideration as
both improper and untimely. Relator has filed a memorandum in response. Relator's
motion for reconsideration is a nullity because her mandamus action was filed originally
in the court of appeals rendering App.R. 26(A) inapplicable. State ex rel. Washington v.
Crush, 106 Ohio St.3d 60, 2005-Ohio-3675, ¶ 5, citing State ex rel. Burnes v. Athens Cty.
Clerk of Courts, 83 Ohio St.3d 523, 524 (1998); State ex rel. Clark v. Lile, 80 Ohio St.3d
220, 221 (1997). Accordingly, we grant the commission's motion to strike relator's motion
for reconsideration.
V. CONCLUSION
{¶ 14} In conclusion, the commission's motion to strike relator's motion for
reconsideration is granted. After review of the magistrate's decision, an independent
review of the record, and due consideration of the commission's objections, we find the
magistrate has properly determined the pertinent facts and applied the appropriate law.
We, therefore, overrule the commission's objections to the magistrate's decision and
adopt the magistrate's decision as our own, including the findings of fact and conclusions
of law, as amended in paragraph nine of this decision.
{¶ 15} In accordance with the magistrate's decision, we issue a writ of mandamus
ordering the commission to vacate the portion of its July 15, 2010 order determining that
relator is not permanently and totally disabled and order the commission to conduct an
additional hearing on relator's PTD application with all three commissioners present and
participating, or conduct an additional hearing with a sufficient record of the proceedings
such that the necessary credibility determinations can be made by all the commissioners.
Commission's motion to strike granted;
objections overruled; writ of mandamus granted.
BROWN and CONNOR, JJ., concur.
No. 10AP-1147
6
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Sophia Stevens,
:
Relator,
:
v.
:
No. 10AP-1147
Industrial Commission of Ohio and
Fountain Park Nursing Home,
:
(REGULAR CALENDAR)
Respondents.
:
:
MAGISTRATE'S DECISION
Rendered on October 15, 2012
Portman, Foley & Flint LLP and Frederic A. Portman, for
relator.
Michael DeWine, Attorney General, and John R. Smart, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶16} This is the second decision of the magistrate in this action.
On
September 27, 2012, in State ex rel. Stevens v. Indus. Comm., 10th Dist. No. 10AP-1147,
2012-Ohio-4408, this court reviewed the first decision of the magistrate. In that decision,
followed by its journal entry of October 1, 2012, this court sustained the objection of
respondent, Industrial Commission of Ohio ("commission"), and denied relator's request
for a writ of mandamus on the question of continuing jurisdiction. This court returned
the matter to the magistrate to determine whether relator has met her burden to prove
No. 10AP-1147
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that the commission abused its discretion by denying permanent total disability ("PTD")
compensation. This court adopted the magistrate's findings of fact but declined to adopt
his conclusions of law.
{¶17} As stated at the outset of the first magistrate's decision, in this original
action, relator, Sophia Stevens, requests a writ of mandamus ordering the commission to
vacate its order denying her PTD compensation by the exercise of R.C. 4123.52 continuing
jurisdiction over the March 29, 2010 order of its staff hearing officer ("SHO") that had
awarded PTD compensation, and to enter an order reinstating the SHO's order.
{¶18} The magistrate hereby incorporates his findings of fact contained in his
magistrate's decision filed January 20, 2012 that were adopted by this court in its decision
of September 27, 2012. Those findings of facts shall not be repeated in this second
decision of the magistrate.
Conclusions of Law:
{¶19} The first issue is whether the vote of commissioner Kevin Abrams, who was
absent from the July 15, 2010 hearing, deprived relator of due process of law under State
ex rel. Ormet Corp. v. Indus. Comm., 54 Ohio St.3d 102 (1990), and its progeny,
notwithstanding Abrams' discussion on August 10, 2010 with SHO Regina Miller.
{¶20} Finding that Abrams' vote with respect to the July 15, 2010 order of the
commission deprived relator of due process of law, it is the magistrate's decision that this
court issue a writ of mandamus, as more fully explained below.
{¶21} In State ex rel. Sigler v. Lubrizol Corp., 10th Dist. No. 10AP-255, 2011Ohio-4917, this court, applying Ormet, held that the claimant, Terry W. Sigler ("Sigler")
was denied due process of law when commissioner Abrams, who was absent at a July 28,
2009 hearing, joined another commissioner in a two-to-one vote to exercise continuing
jurisdiction over an SHO's order granting PTD compensation, and then denied the PTD
application.
{¶22} In Sigler, immediately above Abrams' signature on the order, Abrams
indicated that he had discussed the matter with Bob Cromley who was present at the July
28, 2009 hearing.
Cromley summarized the testimony, evidence and arguments
presented at the hearing. Also, in the mandamus action, the commission filed an affidavit
of Robert Cromley aka Bob Cromley in which Cromley averred that he has long been
No. 10AP-1147
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employed as a commission hearing officer and that, at times, he assists the commissioners
when they preside at hearings. Cromley further averred that he took handwritten notes
during the hearing and used those notes as a reference when discussing the case with
Abrams.
{¶23} Finding that Abrams' vote denied Sigler due process of law, this court
explained:
Sigler testified at the hearing held before the two other
commissioners. He testified about his physical condition. He
testified about his attempts at vocational rehabilitation. He
also testified about future medical procedures which were
contemplated, including a second surgery to his injured back.
The order signed by two of the commissioners is critical of
Sigler's efforts at rehabilitation. Evaluating Sigler's past efforts
at rehabilitation and his ability to benefit from future
rehabilitation efforts seems to be key to the finding that Sigler
is or is not entitled to PTD compensation. The third
commissioner should have been in a position to evaluate
Sigler's credibility on these issues, not rely on the impressions
and notes of a commission employee and that employee's
summaries of what occurred.
***
Credibility, especially the credibility of a claimant, can be key
to reaching a just decision in important workers'
compensation cases. As long as the commission and the
courts are willing to consider failure to fully pursue
rehabilitation efforts as a negative factor in deciding PTD
cases, the injured worker should be able to explain how he or
she has done all he or she can do in pursuing rehabilitation.
As long as there are disputes among medical professionals
about a claimant's physical abilities, the claimant should be
able to tell, in lay terms, what he or she can do. The claimant's
credibility may help determine which medical reports the
commission finds persuasive.
With today's technological capabilities, there is no reason the
commission cannot have a complete record, even a video
record, of the testimony before it. An absent commissioner
could then make the appropriate decision without risking a
violation of Due Process of Law.
No. 10AP-1147
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Id. at ¶ 7-8, 11-13.
{¶24} It can be further noted that, in State ex rel. Evert v. Indus. Comm., 10th
Dist. No. 11AP-465, 2012-Ohio-2404, this court, citing Sigler, also found that the vote of
an absent commissioner violated the claimant's right to due process of law. In Evert, this
court states:
The commissioners' responsibility as to fact finding is at the
heart of our Sigler decision and the opinion of the Supreme
Court of Ohio in State ex rel. Ormet Corp. v. Indus. Comm.
54 Ohio St.3d 102 (1990) which Sigler followed. Both
decisions are founded in the requirement that government
entities provide Due Process of Law.
Counsel for the commission and BWC correctly note that the
credibility of the claimant in the Sigler case was critical to a
determination of whether or not Sigler, the claimant, was
entitled to receive permanent total disability compensation.
Id. at ¶ 7-8.
{¶25} This court's decisions in Sigler and Evert are controlling here.
{¶26} Relator's credibility at the July 15, 2010 hearing was key to the commission
reaching a decision on the merits of relator's PTD application. While the July 15, 2010
hearing was not recorded, the commission's order indicates that relator testified at the
hearing.
{¶27} At two points in the order, the commission notes relator's testimony:
The Injured Worker testified that she treats with Charles May,
D.O., approximately four times a year.
***
The Injured Worker testified at hearing that she left her
employment because she was not able to stand for long
periods of time and that she had some anxiety using the cash
register. The Commission finds Injured Worker's testimony
credible. Thus, the Commission finds the Injured Worker did
not voluntarily abandon her employment.
No. 10AP-1147
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{¶28} While relator's testimony was found to be credible on the voluntary
abandonment issue, it is not clear what impact her testimony may have had on the
commission's decision to rely on the reports of Drs. Hoover and Bloomfield and to reject
the reports of Dr. May which were relied upon in the SHO's order of March 29, 2010 to
grant PTD compensation without reference to the vocational factors.
{¶29} Because the July 15, 2010 order was not recorded, we do not know precisely
relator's testimony. What we do know is that relator testified that she treats with Dr. May
approximately four times a year.
{¶30} Relator's testimony regarding her treatments with Dr. May could have been
key to the commission's decision to reject Dr. May's report.
{¶31} Under the circumstances here, due to his absence at the hearing,
commissioner Abrams had no opportunity to weight the credibility and value of relator's
testimony regarding her treatments with Dr. May. Thus, commissioner Abrams' vote
denied relator due process of law under the Sigler rationale.
{¶32} Given that Abrams' vote with respect to the July 15, 2010 order violated
relator's right to due process of law, it is the magistrate's decision that this court issue a
writ of mandamus ordering the commission to vacate that portion of its July 15, 2010
order determining that relator is not permanently and totally disabled, to conduct an
additional hearing on relator's PTD application with all three commissioners present and
participating, or conduct an additional hearing with sufficient record of the proceedings
such that the necessary credibility determinations can be made by all the commissioners.
{¶33} The second issue is whether the commission examined relator for all the
allowed conditions of the industrial claim.
{¶34} At paragraph three of the complaint filed on December 10, 2010, relator
alleges:
Relator states she filed an application for workers'
compensation benefits with the Bureau of Workers'
Compensation, and that said claim was assigned claim
number 79-38946; and that said claim was ultimately
allowed for the following conditions: CERVICAL STRAIN;
LUMBAR STRAIN; PHLEBITIS IN RIGHT ARM AND
RIGHT HAND; DYSPEPSIA; GASTRITIS; ESOPHAGITIS;
AGGRAVATION OF HIATAL HERNIA; RIGHT SHOULDER
No. 10AP-1147
11
STRAIN/SPRAIN; RIGHT ELBOW AND FOREARM
STRAIN/SPRAIN; RIGHT WRIST STRAIN/SPRAIN;
CLOSED FRACTURE OF THE RIGHT MIDDLE FINGER;
IMPINGEMENT
SYNDROME
RIGHT
SHOULDER;
DEGENERATIVE SPONDYLOSIS OF THE LUMBAR
SPINE; LOW GRADE GLENOHUMERAL ARTHROPATHY,
RIGHT SHOULDER.
{¶35} In its answer filed on January 10, 2011, the commission admits paragraph
three of the complaint.
{¶36} While the SHO's order of March 29, 2010 does not list "low grade
glenohumeral arthropathy, right shoulder" as among the allowed conditions of the claim,
the commission's order of July 15, 2010 does list the condition as allowed.
{¶37} In his December 29, 2009 report, under the section of his report captioned
"Opinion," Dr. Hoover states:
Right shoulder strain/sprain and impingement syndrome
right shoulder: All though there is some reduction of motion,
this is not due to the impingement syndrome, but rather the
glenohumeral arthritis it is also symmetric to the uninvolved
side, in my opinion would not be due to the allowed
conditions in the claim. Thus, Section 16-4 would not apply.
Note there is applicable impairment in Section 16-7. Thus,
for this it is 0%.
{¶38} Also, on the first page of his report, Dr. Hoover lists the allowed conditions
of the claim. "[L]ow grade glenohumeral arthropathy, right shoulder" is not among the
allowed conditions listed by Dr. Hoover.
{¶39} According to relator, Dr. Hoover failed to examine for "low grade
glenohumeral arthropathy" which relator asserts is an allowed condition of the claim.
Relator concludes that the commission failed to consider an allowed condition and
thereby abused its discretion in adjudicating the PTD application. (Relator's brief, at 15.)
{¶40} Respondent commission fails to respond to relator's argument that the
commission failed to examine for all the allowed conditions of the claim. Nevertheless,
the magistrate finds that relator's argument must fail.
{¶41} Ohio Adm.Code 4121-3-34(C)(3)(c) provides:
If a motion requesting recognition of additional conditions is
filed on or prior to the date of filing for permanent total
No. 10AP-1147
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disability compensation, such motion(s) shall be processed
prior to the processing of the application for permanent total
disability compensation. However, if a motion for
recognition of an additional condition is filed subsequent to
the date of filing of the application of permanent total
disability, the motions shall be processed subsequent to the
determination of the application for permanent total
disability compensation.
{¶42} With respect to relator's assertion that the industrial claim is allowed for
"low grade glenohumeral arthropathy, right shoulder" the stipulated record before this
court fails to disclose when the motion was filed that resulted in the alleged allowance of
that condition.
{¶43} It is conceivable that the motion for an additional claim allowance was filed
subsequent to the October 8, 2009 filing of the PTD application at issue here, and that the
motion was processed and adjudicated subsequent to the SHO's order of March 29, 2010
granting PTD compensation. Under that scenario, the SHO's order of March 29, 2010
correctly lists the allowed conditions of the claim that were relevant to the adjudication of
the PTD application, and Dr. Hoover's listing of the allowed conditions for which he was
to examine are also correct. That is, under that scenario, the commission, through its
SHO, did consider all of the allowed conditions that were relevant to the PTD application.
Under that scenario, the commission was not required to consider "low grade
glenohumeral arthropathy, right shoulder" as an allowed condition when it redetermined
the PTD application following the July 15, 2010 hearing.
{¶44} Here, relator has the burden to show that the commission abused its
discretion in failing to consider all the allowed conditions of the claim in connection with
the adjudication of the PTD application filed October 8, 2009. Because relator has failed
to submit evidence to this court that "low grade glenohumeral arthropathy, right
shoulder" is an allowed condition resulting from a motion filed on or prior to the filing of
the PTD application, relator's argument for a writ of mandamus must fail. That is, relator
has failed to prove that the commission has failed to consider all the allowed conditions of
the claim that the commission was required to consider in its adjudication of the PTD
application.
No. 10AP-1147
13
{¶45} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate that portion of its July 15, 2010 order
determining that relator is not permanently and totally disabled, to conduct an additional
hearing on relator's PTD application with all three commissioners present and
participating, or conduct an additional hearing with sufficient record of the proceedings
such that the necessary credibility determinations can be made by all the commissioners.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).
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