Ohio Appellate Reports
Unpublished
HOLSTON v. INDUS. COMMN. OF OHIO., Unpublished Decision
(12-21-2006) 2006-Ohio-6787 State ex rel. Pearlena
Holston, Relator, v. Industrial Commission of Ohio et al.,
Respondents. No. 06AP-42. Court of Appeals of Ohio, Tenth
District. Rendered on December 21, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Gallon, Takacs, Boissoneault & Schaffer Co.,
L.P.A., and Theodore A. Bowman, for relator.
Jim Petro, Attorney General, and Elise Porter, for
respondent Industrial Commission of Ohio.
TRAVIS, J.
{¶ 1} In this original action, relator, Pearlena
Holston, seeks a writ of mandamus compelling respondent,
the Industrial Commission of Ohio (“commission”), to vacate
its order, which denied relator’s application for permanent
total disability (“PTD”) compensation and ordering the
commission to redetermine her application after a thorough
and adequate analysis on the nonmedical disability factors.
{¶ 2} The matter was referred to a magistrate of
this court pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the
Tenth District Court of Appeals. The magistrate issued a
decision that includes findings of fact and conclusions of
law and recommended that this court deny the requested writ
of mandamus. (Attached as Appendix A.) Relator filed timely
objections to the decision of the magistrate. The objections
are not addressed to the magistrate’s factual findings, but
only to the magistrate’s conclusions of law.
{¶ 3} Relator was the owner/manager of Holston’s
Group Home, the employer herein. During her employment,
relator suffered two work-related injuries. Her 1993 injury
occurred as a result of lifting a box and was allowed for
“lumbar sprain.” Relator was able to return to work. Her
1997 injury occurred when she fell and hurt her knee and
aggravated her back condition. This claim was allowed for
“contusion of knee, left; sprain lumbar region; sprain of
ankle, Nos, left; aggravation of pre-existing lumbar disc
disease and spondylolisthesis.” Relator was able to return
to work after this injury as well.
{¶ 4} Relator continued to work until December 5,
2002, when she was 70 years old. On April 5, 2005, relator
applied for PTD compensation based upon her injuries
sustained in 1993 and 1997. Relator’s application stated
that she was 72 years old at the time of her application
and had retired from the workforce at age 70. Relator
stated that she had finished her high school education and
was licensed as a licensed practical nurse and that she
held both cosmetology and real estate licenses. The
application indicated that relator could read, write and
perform basic mathematics.
{¶ 5} In support of her application for PTD
compensation, relator submitted the December 3, 2004 report
of Dr. Dee Ann Bialecki-Haase. The doctor’s report noted
that relator has chronic low back pain and stiffness, with
severe pain if she attempts to lift objects with her back.
The doctor further noted that relator’s knee injury was not
a major problem but that relator should be restricted from
squatting and kneeling. Dr. Bialecki-Haase reported that
relator had the following work restrictions: cannot stand
or walk for over 15 minutes at a time; unable to do any
lifting with her back; occasionally lift a maximum of ten
pounds from waist level; avoid stooping, squatting,
kneeling, and climbing; and avoid climbing stairs. Dr.
Bialecki-Haase was of the opinion that relator could not
return to her job as owner/manager of the group home and
that she was permanently and totally disabled.
{¶ 6} Dr. Harvey A. Popovich examined relator. In
his May 18, 2005 report, Dr. Popovich provided his findings
upon physical examination and then opined that relator had
reached maximum medical improvement (“MMI”). Dr. Popovich
assessed a five percent whole person impairment for all of
relator’s allowed conditions. Dr. Popovich was of the
opinion that relator was capable of performing sedentary
work as defined in the Ohio Administrative Code.
{¶ 7} A staff hearing officer (“SHO”) heard
relator’s application for PTD compensation on August 24,
2005. The application was denied. The SHO relied upon the
medical report of Dr. Popovich and concluded that relator
was capable of performing work at a sedentary level. The
SHO considered the nonmedical disability factors, including
relator’s age, her last work and that relator quit working
on December 5, 2002 because she could not do all of her
activities at her group nursing home. Significantly, the
SHO found that there was no contemporary medical evidence
to indicate that relator was no longer able to perform her
work with the group home. The SHO also noted that relator
owned the group home which was her own business and that
relator was trained as an LPN, a cosmetologist and owned
and operated her own beauty salon and obtained a real
estate license in 1979. The SHO found that relator has
excellent vocational factors, had demonstrated the ability
to adapt and train for new work environments and learn new
skills and that the only barrier to re-employment was her
age. The magistrate recommended that a writ of mandamus be
denied.
{¶ 8} Relator objects to the magistrate’s reliance
upon State ex rel. DeZarn v. Indus. Comm. (1996), 74 Ohio
St.3d 461, as authority for the proposition that the
commission has discretion to deny an application for PTD
compensation if the claimant’s increased age is found to be
the causal factor for inability to return to the workforce.
Relator believes that both the commission and the
magistrate misread DeZarn. Relator believes that the
commission may only consider medical evidence which opines
that increased age is the cause of inability to work. We
disagree and find that under DeZarn, the commission has the
discretion to consider nonmedical evidence that age is the
causation for a claimant’s failure to return to work.
{¶ 9} It is true that in DeZarn, the evidence that
the natural progression of age was the sole reason the
claimant could not work, was contained in a medical report.
However, DeZarn did not limit age causative evidence to
medical opinion. PTD compensation was never intended to
compensate a claimant for simply growing old. State ex rel.
Moss v. Indus. Comm. (1996), 75 Ohio St.3d 414, 417. See
State ex rel. Speelman v. Indus. Comm. (1992), 73 Ohio
App.3d 757. “[T]he commission must indeed have the
discretion to attribute a claimant’s inability to work to
age alone and deny compensation where the evidence supports
such conclusion.” DeZarn, at 463-464. DeZarn does not hold
that only medical evidence of age-caused inability to work
may be considered.
{¶ 1O} Relator also objects to the magistrate’s
conclusion that age was a vocational factor adversely
affecting relator’s ability to engage in remunerative
employment. Again, we must disagree. The SHO found that
relator was physically capable of performing work. This is
supported by the medical report of Dr. Popovich. In
addition, the SHO noted that relator had a number of skills
that would permit her to be gainfully employed. Relator is
educated and has held licenses as a charge nurse and
relator has demonstrated the ability to adapt to new work
environments. The SHO went on to find that the nonmedical
factors of educational background and prior employment
history are not barriers to re-employment and that the only
barrier to re-employment appeared to be relator’s age. In
short, there was no evidence that relator could not be
re-employed, other than her age. Since growing old is not
compensable under the workers’ compensation laws, the
magistrate did not err in her conclusions in this case.
{¶ 11} There is some medical evidence in this case
to support the commission’s finding that relator’s
work-related injuries do not prevent her from
re-employment. Her nonmedical factors such as education and
ability to retrain do not prevent her from re-employment.
Only her age remains as the cause for lack of
re-employment. Age alone is not a basis for being awarded
PTD benefits.
{¶ 12} Pursuant to Civ.R. 53(E)(4), this court
conducted a full review of the magistrate’s decision. This
court finds that there is no error of law or other defect
upon the face of the magistrate’s decision. The objections
are overruled and the magistrate’s decision is adopted. The
requested writ of mandamus is denied.
Objections overruled; writ of mandamus denied
KLATT, P.J., and BRYANT, J., concur.
(APPENDIX A)
MAGISTRATE’S DECISION
IN MANDAMUS
{¶ 13} Relator, Pearlena Holston, has filed this
original action requesting that this court issue a writ of
mandamus ordering respondent, Industrial Commission of Ohio
(“commission”), to vacate its order which denied her
application for permanent total disability (“PTD”)
compensation, and ordering the commission to redetermine her
application for PTD compensation after a thorough and
adequate analysis of the non-medical disability factors.
Findings of Fact:
{¶ 14} 1. Relator was the owner/manager of Holston’s
Group Home, the employer herein. During the course of her
employment, relator suffered two work-related injuries and
her claims have been allowed as follows:
CLAIM NUMBER 93-43133: LUMBAR SPRAIN.
CLAIM NUMBER 97-603867: CONTUSION OF KNEE, LEFT; SPRAIN
LUMBAR REGION; SPRAIN OF ANKLE, NOS, LEFT; AGGRAVATION OF
PRE-EXISTING LUMBAR DISC DISEASE AND SPONDYLOLISTHESIS.
{¶ 15} 2. Relator’s 1993 injury occurred as a result
of lifting a box. Relator was able to return to work after
this injury.
{¶ 16} 3. In February, 1997, relator suffered her
second injury when she fell, hurting her knee and
aggravating her back condition. Relator was able to return
to work after this injury as well.
{¶ 17} 4. Relator continued to work until December
5, 2002. At that time, she was 70 years old.
{¶ 18} 5. On April 5, 2005, relator filed an
application for PTD compensation based upon the injuries
she sustained in 1993 and 1997. According to her
application, relator was 72 years old at the time she filed
her application for PTD compensation and had retired from
the work force at the age of 70. Relator indicated that she
had finished high school, that she was licensed as an
L.P.N., and that she had her cosmetology license as well as
her real estate license. Relator also indicated that she
could read, write, and perform basic math.
{¶ 19} 6. In support of her application for PTD
compensation, relator submitted the December 3, 2004 report
of Dr. Dee Ann Bialecki-Haase. In her report, Dr.
Bialecki-Haase noted that relator has chronic low back pain
and stiffness, with severe pain if she tries to lift
anything with her back. She noted further that relator’s
knee was not a major problem but she is restricted from any
squatting and kneeling. After providing her findings upon
physical examination, Dr. Bialecki-Haase noted that relator
had the following restrictions: cannot stand or walk for
over 15 minutes at a time; unable to do any lifting with
her back; occasionally lift a maximum of ten pounds from
waist level; avoid stooping, squatting, kneeling, and
climbing; and avoid climbing stairs. Dr. Bialecki-Haase
opined that relator could not return to her job as
owner/manager of the group home and that she was permanently
and totally disabled.
{¶ 20} 7. Relator was also examined by Dr. Harvey A.
Popovich, who issued a report dated May 18, 2005. After
providing his findings upon physical examination, Dr.
Popovich opined that relator had reached maximum medical
improvement, assessed a five percent whole person
impairment for all of her allowed conditions, and opined
that relator was capable of performing sedentary work as
such is defined in the Ohio Administrative Code.
{¶ 21} 8. Relator’s application for PTD compensation
was heard before a staff hearing officer (“SHO”) on August
24, 2005, and resulted in an order denying the application.
The SHO relied upon the medical report of Dr. Popovich and
concluded that relator was capable of performing work at a
sedentary strength level. With regards to the non-medical
disability factors, the SHO noted as follows:
This Staff Hearing Officer finds that the injured worker
is a 72 year old woman whose date of birth is 09/08/1932.
The injured worker last worked on December 5, 2002. The
injured worker testified, at hearing, that she quit work
at that time, because she could no longer do all of her
activities involving the Group Home. She was relying on
and hiring more people to do the work rather than herself.
However, this Staff Hearing Officer finds that the injured
worker did not receive any Temporary Total Disability
benefits after that time, and there is no contemporaneous
medical evidence which indicates that she was no longer
able to perform her work with the Group Home. This Staff
Hearing Officer also notes that the injured worker is also
the employer herein, as this was her own business. This
Staff Hearing Officer finally also notes that the injured
worker was 70 at the time that she left the workforce in
December of 2002, which in many cases is a retirement age.
The injured worker is a high school graduate. In addition,
she has additional training as a Licensed Practical
Nurse, she also went to Cosmetology School and owned and
operated her own beauty salon, from 1965 through 1981. In
addition, the injured worker obtained her Real Estate
license in 1979. The injured worker is a well educated
woman and is able to read, write and perform basic math.
The injured worker has owned and operated two businesses
throughout the course of her employment history. The
injured worker has also worked as a charge nurse and as a
relator. * * * Since the injured worker is physically
capable of performing work, at least a sedentary level,
the vocational factors must then be considered. This
Staff Hearing Officer finds that the injured worker has
excellent vocational factors. She is a high school
graduate and subsequently obtained degrees or certificates
in Real Estate, Cosmetology, and Licensed Practical
Nursing. The injured worker has owned and operated her
own businesses twice during the course of her employment
career. The injured worker has demonstrated an ability to
adapt to new work environments and to train and learn new
skills. The injured worker’s educational background and
prior employment history are not barriers to
re-employment. Therefore, the only barrier to re-employer
[sic] is the injured worker’s age. This Staff Hearing
Officer finds that, if the only negative vocational factor
is the injured worker’s age, pursuant to the findings in
DeZarn and Moss. Permanent and Total Disability
Compensation cannot be granted on the basis of age alone.
That being the case, this Staff Hearing Officer finds that
the injured worker is not permanently and totally
disabled, nor precluded from performed [sic] sustained
remunerative work activity. Therefore, the IC-2
Application, filed on 04/05/2005, is hereby DENIED.
{¶ 22} 9. Thereafter, relator filed the instant
mandamus action in this court.
Conclusions of Law:
{¶ 23} In order for this court to issue a writ of
mandamus as a remedy from a determination of the
commission, relator must show a clear legal right to the
relief sought and that the commission has a clear legal
duty to provide such relief. State ex rel. Pressley v.
Indus. Comm. (1967), 11 Ohio St.2d 141. A clear legal right
to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order
which is not supported by any evidence in the record. State
ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76.
On the other hand, where the record contains some evidence
to support the commission’s findings, there has been no
abuse of discretion and mandamus is not appropriate. State
ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d
56. Furthermore, questions of credibility and the weight to
be given evidence are clearly within the discretion of the
commission as fact finder. State ex rel. Teece v. Indus.
Comm. (1981), 68 Ohio St.2d 165.
{¶ 24} The relevant inquiry in a determination of
PTD is claimant’s ability to do any sustained remunerative
employment. State ex rel. Domjancic v. Indus. Comm. (1994),
69 Ohio St.3d 693. Generally, in making this determination,
the commission must consider not only medical impairments
but, also, the claimant’s age, education, work record and
other relevant nonmedical factors. State ex rel. Stephenson
v. Indus. Comm. (1987), 31 Ohio St.3d 167. Thus, a
claimant’s medical capacity to work is not dispositive if
the claimant’s nonmedical factors foreclose employability.
State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315. The
commission must also specify in its order what evidence has
been relied upon and briefly explain the reasoning for its
decision. State ex rel. Noll v. Indus. Comm. (1991), 57
Ohio St.3d 203.
{¶ 25} In this mandamus action, relator contends
that the commission’s analysis of the nonmedical vocational
factors was inadequate. Relator argues that the commission
applied State ex rel. Wilson v. Indus. Comm. (1997), 80
Ohio St.3d 250, State ex rel. DeZarn v. Indus. Comm.
(1996), 74 Ohio St.3d 461, State ex rel. Moss v. Indus.
Comm. (1996), 75 Ohio St.3d 414, without conducting the
analysis required if age is to be considered. Relator then
goes through the facts of those three cases and compares
them to the facts of relator’s case and indicates that the
propositions of law for which those cases stand,
individually, require the commission to reach a different
result in her case. Thereafter, relator cites two cases
from this court which relator contends bear striking
similarities to her case. Based upon this court’s decisions
in State ex rel. Yancey v. Columbus Maintenance & Serv.
Co., 04AP-1357, 2005-Ohio-5325, and State ex rel. Allied
Chem. Corp. v. Indus. Comm., 02AP-756, 2003-Ohio-3119,
relator contends that this court should grant a writ of
mandamus ordering the commission to reconsider her age and
the nonmedical disability factors in determining whether or
not she is entitled to an award of PTD compensation. For the
reasons that follow, this magistrate disagrees.
{¶ 26} Considering relator’s second argument first,
although relator contends that the Yancey and Allied Chem.
cases bear striking similarities to her case, this
magistrate disagrees. As stated previously, in the present
case, relator sustained two work-related injuries, one in
1993 and the other in 1997. Relator was able to return to
work after both of those injuries. Relator retired from the
workforce at age 70, and filed an application for PTD
compensation when she was 72. Relator was a high school
graduate, had additional training in cosmetology, real
estate, and was an L.P.N. Relator also indicated that she
was able to read, write, and perform basic math. With regard
to her former employment, relator had owned and operated
her own salon, had been employed as an L.P.N., and was an
owner-operator of a care facility. The commission relied
upon medical reports in determining that relator was
capable of performing sedentary work. In discussing the
nonmedical disability factors, the commission noted that
relator had excellent vocational factors, and noted the
fact that she was a high school graduate, that she had
extra training, that she had owned and operated two
businesses, and that she had the ability to adapt to new
situations.
{¶ 27} By comparison, the claimant in Yancey
sustained two work-related injuries, one in 1972, and one
in 1975, and the claimant returned to work after both
injuries. The claimant in Yancey had an eighth grade
education, did not obtain a GED, and had no other
specialized training. On his PTD application, the claimant
indicated that he could read, but that he could not write
and that he did not perform math well. The claimant applied
for PTD compensation at age 72, and his former work
experience was as a maintenance worker and a baker. The
commission relied upon a medical report and concluded the
claimant could perform sedentary work. The commission did
not provide any analysis of a nonmedical factor at all.
{¶ 28} In Yancey, this court granted a writ of
mandamus for several reasons. First, this court found that
the commission had misinterpreted the report of Dr. Turner,
who had indicated that the claimant’s allowed conditions
were work prohibitive to the extent that they limited the
claimant to sedentary work. Further, this court noted that
the commission indicated that the claimant could perform
jobs consistent with those titles identified by a
vocational expert; however, there was no vocational report
in the record that identified any jobs as current
employment options for the claimant. Further, this court
concluded that DeZarn was inapplicable because Dr. Turner’s
report did not constitute some evidence that the industrial
injury was not significantly work prohibitive.
{¶ 29} In the present case, Dr. Popovich has limited
the relator to sedentary work, and as such, she cannot go
back to performing the job she performed earlier. However,
the commission found that relator’s significantly greater
education and work history could be utilized in obtaining
sedentary work. As such, upon closer examination, this case
is not similar to the Yancey case and this court’s decision
in Yancey does not compel this court to issue a writ of
mandamus in the present case.
{¶ 30} Further, the magistrate finds the situation
in Allied Chem. likewise does not compel a writ of mandamus
in the present case. The claimant in Allied Chem. had
sustained a work-related injury in 1962, and thereafter,
was able to return to work. The claimant had an eighth
grade education and indicated that he could read, write,
and perform basic math. The claimant continued to work
until he was 62 years old and, thereafter, filed four
applications for PTD compensation, the first being filed in
1986. At the time that he filed his fourth application,
June 4, 2001, he was 84 years old. The commission relied
upon medical reports that indicated that claimant was
capable of performing sedentary work. The commission found
claimant’s testimony that he had retired at age 62 due to
constant back pain, which had been caused by the
work-related injury, to be persuasive. The SHO also found
that the claimant lacked any transferable skills from his
previous work history which would enable him to engage in
sedentary employment. Specifically, when considering the
medical evidence in the record, the commission concluded
that the claimant was capable of performing something less
than true sedentary employment. The commission ultimately
granted the claimant’s application for PTD compensation.
{¶ 31} The employer filed a mandamus action in this
court and argued, in part, that the only factor keeping the
claimant from working was the fact that he had aged since
he had filed his earlier applications for PTD compensation.
The employer also argued that the claimant had failed to
pursue rehabilitation or retraining since 1978, when he had
retired. This court specifically noted that, although the
commission had previously denied the claimant’s application
for PTD compensation based upon the medical report of Dr.
Turner, who had opined that the claimant’s restrictions
were age related rather than injury related, the commission
relied upon new medical evidence when it granted the PTD
application in 2001. Specifically, the commission relied
upon the report of Dr. Hoback, who had opined that the
industrial injury alone prohibited the claimant from all
sustained remunerative employment. This court found that
the employer’s contention that the commission awarded the
claimant PTD compensation for simply growing old lacked
merit.
{¶ 32} Again, this magistrate finds the Allied Chem.
case differs significantly from the present case and does
not compel this court to issue a writ of mandamus.
{¶ 33} In the present case, relator worked until she
was 70 years old. Two years later, relator filed her
application for PTD compensation. The commission relied
upon medical evidence that the relator was capable of
performing sedentary work. Thereafter, the commission looked
at the relator’s education and work experience, and found
those to be excellent vocational factors which would enable
the relator to become employed again. The commission then
noted that the only negative factor regarding relator’s
potential to become reemployed was her age. Relator’s
restrictions would allow her to perform sedentary work and
the commission found that her education, special training
and varied work history would enable her to work. As such,
Allied Chem. does not compel this court to issue a writ of
mandamus.
{¶ 34} Thereafter, the commission cited three cases
(DeZarn, Wilson, and Moss) which are frequently cited for
the proposition that there is not an age, ever, at which
reemployment is held to be a virtual impossibility as a
matter of law. Relator asserts that the facts of those
three cases must be thoroughly examined by the commission if
the commission is going to cite them in an order. This
magistrate does not agree with relator that the commission
needs to scrutinize the specific facts of each of those
cases noted by the commission.
{¶ 35} These three cases are routinely cited by the
commission, this court and by the Supreme Court of Ohio for
the proposition that there is no age at which reemployment
is held to be a virtual impossibility as a mater of law.
Further, the magistrate notes that these cases and the
other cases relator cites do not bear striking similarities
to her case and do not compel the granting of a writ of
mandamus. In the present case, the commission identified
the medical evidence upon which it relied and noted that
relator had excellent vocational factors which would enable
her to seek reemployment. Although counsel for relator
argued at hearing that, at age 72, relator no longer had the
ability to learn new tasks, this magistrate does not
believe that the commission was required to reach that
conclusion. Furthermore, although relator’s prior jobs were
not sedentary when considered in their totality, there were
many aspects of those jobs which would have been sedentary.
For example, relator operated her own business on more than
one occasion. Both the commission and this court can take
judicial notice of the fact that certain aspects of
operating one’s own business are sedentary. Further, the
commission is considered the expert of the vocational
factors, and the commission was not required to obtain a
vocational report and was not required to cite actual jobs
which they believed relator was capable of performing
— that has never been a requirement when denying an
application for PTD compensation.
{¶ 36} Based on the foregoing, it is this
magistrate’s conclusion that relator has not demonstrated
the commission abused its discretion in denying her
application for PTD compensation, and this court should
deny relator’s request for writ of mandamus.