Ohio Appellate Reports
Unpublished
ARTHUR v. INDUSTRIAL COMMISSION OF OHIO, Unpublished
Decision (12-21-2006) 2006-Ohio-6776 State of Ohio ex rel.
Daisy Arthur, Relator, v. Industrial Commission of Ohio et
al., Respondents. No. 05AP-1018. 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[EDITOR’S NOTE: This case is unpublished as indicated by the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.] Crowley, Ahlers & Roth Co., L.P.A., and
Edward C. Ahlers, for relator.
Jim Petro, Attorney General, and Elise Porter, for
respondent Industrial Commission of Ohio.
Porter, Wright, Morris & Arthur LLP, and Adele E. O’Conner,
for respondent White Castle Systems, Inc.
DECISION
TRAVIS, J.
IN MANDAMUS ON OBJECTIONS TO MAGISTRATE’S DECISION
{¶ 1} In this original action, relator, Daisy
Arthur, requests a writ of mandamus ordering respondent,
Industrial Commission of Ohio (“commission”), to vacate its
order denying her request for permanent total disability
(“PTD”) compensation and enter an order granting said
compensation.
{¶ 2} Relator’s compensation claim arises from two
separate industrial injuries. Claim No. 74-44302 was
allowed for “muscle sprain to neck and right shoulder;
occipital neuralgia; chronic pain syndrome; [and] adhesive
capsulitis of the right shoulder.” Claim No. 01-842280 was
allowed for “bilateral carpal tunnel syndrome; [and]
aggravation of pre-existing bilateral basilar arthritis.”
Relator suffered the first claim on September 5, 1974 while
employed by Clopay Corporation.[fn1] She suffered the
second claim in 2001 while employed by White Castle
Systems, Inc.
{¶ 3} On September 4, 2005, relator filed an
application for PTD compensation. At the commission’s
request, relator was examined by Andrew Freeman, M.D., on
May 20, 2005. Dr. Freeman noted that relator underwent a
series of surgeries on her hands following her diagnosis
for claim No. 01-842280. Dr. Freeman described relator’s
surgeries as follows:
* * * In May 2002, she underwent a left carpal tunnel
release and in June 2002 she underwent a right carpal
tunnel decompression with a right flexor tenosynovectomy.
She had continued pain at the base of both thumbs and
after the claim was allowed for basilar arthritis
(arthritis at the base of the thumb), she underwent an
arthrodesis with placement of hardware in the left CMC
joint in October 2002. She underwent a similar operation
in February 2003 in the right thumb. On January 9, 2004,
she had an excisional interpositional arthroplasty for a
metacarpal-carpal trapezial joint on the right hand with
the palmaris longus tendon graft. She also had removal of
the metal plate and screws from the previous operation.
{¶ 4} Dr. Freeman concluded that relator’s allowed
physical conditions had reached a maximum medical
improvement (“MMI”) of 28 percent whole person impairment.
Dr. Freeman completed a “Physical Strength Rating” form in
which he noted that relator was capable of sedentary
employment “with additional restriction of no repetitive
hand motions[.]”
{¶ 5} Dr. Freeman also included relator’s
occupational history in his report:
OCCUPATIONAL HISTORY: She has not worked since March 26,
2002. She states that she last worked for White Castle
from 1998 through 2002 as a fast food restaurant worker.
From 1964 to 1968, she was a machine operator operating a
security bag-making machine. From 1969 to 1970, she was a
machine operator slicing lunchmeats. From 1971 to 1975
until her shoulder and neck injury, she was a machine
operator operating a rolling machine, taping and
assembling plastic window shades. She did not work from
1975 to 1998.
{¶ 6} At the request of respondent, White Castle
Systems, relator underwent an employability assessment by
vocational expert, Deanna Arbuckle. Ms. Arbuckle’s July 11,
2005 report revealed that relator’s previous job duties
ranged from unskilled to skilled and required light or
medium strength. Ms. Arbuckle noted that relator left school
after completing the 11th grade in 1958. Relator never
obtained a GED. Relator did indicate that she was able to
read, write, and do basic math. Under her “Residual
Employability Profile (Transferable Skills),” Ms. Arbuckle
stated that:
Ms. Arthur has demonstrated the ability to work in a
position requiring average aptitudes of intelligence,
spatial perception, form perception, clerical perception,
motor coordination, finger dexterity, and manual
dexterity. She has also demonstrated 7-8th grade
Reasoning, and 4-6th grade Math and Language
proficiencies. She has demonstrated temperaments for
occupations that require performing repetitive or short
cycle work; attaining precise set limits, tolerances, and
standards; making judgements and decisions; and dealing
with people. Specific skills have been developed in the
Work Fields of Filling-packaging-wrapping (Unskilled);
shearing-shaving (Unskilled), structural
fabrication-install-repair (Semi-Skilled), cooking-food
preparing (Skilled), accommodating (Unskilled) and
merchandising sales (Unskilled). Through her prior work
activity, the claimant has gained experience with the
following materials, products, subject matter or services
(MPSMS): processed meat products; [dairy] products; wood
and metal fixtures; converted paper and paperboard
products [etc]; retail trade; production services; and
meal services except domestic[.]
{¶ 7} Upon review of relator’s occupational history
and Dr. Freeman’s report, Ms. Arbuckle concluded that
relator is capable of sedentary sustained remunerative
employment. Based upon her analysis, Ms. Arbuckle suggested
sedentary occupations conducive to relator’s skill level:
976.682-014 PRINTER OPERATOR, BLACK-AND-WHITE Sedentary
5-skilled Operates printer to produce black-and-white
photographic prints from negatives. 249.587-018 DOCUMENT
PREPARER, MICROFILMING Sedentary 2-unskilled Prepares
documents, such as brochures, pamphlets, and catalogs, for
microfilming, using paper cutter, photocopying machine,
rubber stamps, and other work devices.
{¶ 8} A staff hearing officer (“SHO”) conducted a
hearing on relator’s PTD application on July 28, 2005. The
SHO relied upon the reports submitted by Dr. Freeman and
Ms. Arbuckle in denying relator’s claim for PTD
compensation. The SHO further analyzed relator’s
non-medical factors. The SHO noted that relator was 62
years old. Although her age was not a positive factor for
re-employment, relator’s education, ability to read, write
and do basic math, and the skills she gained from her
previous positions were positive factors for consideration.
The SHO further stated that “the Injured Worker’s lack of
engaging in rehabilitation reflects negatively on the
injured Worker’s application for permanent and total
disability compensation.”
{¶ 9} Based upon these findings, the SHO found that
relator was not entitled to PTD compensation. On September
22, 2005, relator filed the within writ of mandamus
alleging: (1) the commission abused its discretion by
failing to properly consider and discuss its decision based
upon relator’s non-medical factors; and (2) the commission
abused its discretion by relying upon Ms. Arbuckle’s
vocational report.
{¶ 10} Pursuant to Civ.R. 53(C) and Loc.R. 12(M) of
the Tenth District Court of Appeals, this matter was
referred to a magistrate of this court. The magistrate
rendered a decision on June 30, 2006, including findings of
fact and conclusions of law. (Attached as Appendix A.)
Based upon his application of the case law to these facts,
the magistrate found: “(1) the Arbuckle report provides
some evidence upon which the commission can rely to support
the commission’s non-medical analysis, and (2) the
commission did abuse its discretion in holding relator
accountable for not having engaged in any type of retraining
since her most recent injury in 2001.” Accordingly, the
magistrate recommended that this court issue a writ of
mandamus granting relator’s request for PTD compensation.
{¶ 11} Relator objected to the magistrate’s decision
on the grounds that Ms. Arbuckle’s vocational report is
flawed and internally equivocal and, thus, may not be
considered evidence upon which a decision may be based.
State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio
St.3d 649. Respondents object to the magistrate’s
determination that the commission abused its discretion by
holding relator accountable for failing to undergo any
retraining or rehabilitation. We overrule relator’s
objection and sustain respondents’ objection.
{¶ 12} For a writ of mandamus to issue, relator must
exhibit a legal right to relief from the determination of
the commission and that the commission has a legal duty to
provide such relief. State ex rel. Pressley v. Indus. Comm.
(1967), 11 Ohio St.2d 141. The right to relief is
demonstrated by showing that the commission abused its
discretion by entering an order not supported by the
evidence of record. State ex rel. Elliott v. Indus. Comm.
(1986), 26 Ohio St.3d 76. However, where some evidence of
record supports the commission’s order, there is no abuse
of discretion and mandamus is not available. State ex rel.
Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56.
{¶ 13} Relator contends that Ms. Arbuckle’s
vocational report mischaracterizes relator’s physical
restrictions set forth in Dr. Freeman’s medical report.
Relator argues that Ms. Arbuckle failed to take into
consideration the proviso in Dr. Freeman’s report that
relator was capable of sedentary work as long as she was
not required to perform repetitive hand motions. Relator
further asserts that all of the jobs listed in Ms.
Arbuckle’s report require repetitive hand motions in direct
contradiction with Dr. Freeman’s orders. As such, relator
feels Arbuckle’s report is fundamentally flawed and may not
be relied upon as some evidence to support the commission’s
non-medical analysis under Eberhardt. Relator concludes
that the only vocational evidence the commission may rely
upon is the report submitted on her behalf by William Cody,
which states she is permanently and totally disabled.
{¶ 14} Relator misinterprets the holding in
Eberhardt. Eberhardt stands for the proposition that
equivocal medical opinions may not be relied upon as some
evidence by the commission. However, the Supreme Court of
Ohio made no mention of vocational reports, indicating the
court’s intent that the rule only apply to medical opinions.
Because Ms. Arbuckle’s report is vocational evidence,
Eberhardt does not apply in this case.
{¶ 15} Furthermore, we have long held that the
commission is the ultimate expert on vocational and
non-medical evidence. State ex rel. Jackson v. Indus. Comm.
(1997), 79 Ohio St.3d 266. While the commission may, in its
discretion, refer to offered vocational evidence, it is not
required to do so:
* * * [T]he commission, as the exclusive evaluator of
disability, is not bound to accept vocational evidence,
even if uncontradicted. Rather, upon a determination of
claimant’s permanent partial impairment, the commission’s
charge is to review the evidence of the claimant’s age,
education, work history, and other relevant nonmedical
characteristics and to decide for itself from that
evidence whether the claimant is realistically foreclosed
from sustained remunerative employment. The commission
may credit offered vocational evidence, but expert opinion
is not critical or even necessary, because the commission
is the expert on this issue. * * *
Id. at 270-271. (Emphasis sic.) The commission did not abuse
its discretion in relying upon Ms. Arbuckle’s report as
some evidence to determine that relator is not entitled to
compensation. Relator’s objection is overruled.
{¶ 16} Respondents object to the magistrate’s
determination that the commission abused its discretion by
holding relator accountable for not seeking rehabilitation
or retraining following her most recent injuries. The
magistrate noted that the commission failed to consider
relator’s five surgeries in 2002, 2003 and 2004, and their
impact on her ability to undergo retraining. We agree that
the magistrate erroneously placed the burden on the
commission to consider how rehabilitation and retraining
would be affected by relator’s multiple surgeries.
{¶ 17} Ohio Adm. Code 4123-3-09(C)(3) states, in
part, that “the burden of proof is upon the claimant * * *
to establish each essential element of the claim by
preponderance of the evidence.” (Emphasis added.) Absent
proof, the commission may deny compensation if “[t]he
employee has not engaged in educational or rehabilitative
efforts to enhance the employee’s employability, unless
such efforts are determined to be in vain.” R.C.
4123.58(D)(4). In State ex rel. B.F. Goodrich Co. v. Indus.
Comm. (1995), 73 Ohio St.3d 525, the injured worker did not
take advantage of rehabilitation and retraining programs.
The Supreme Court of Ohio noted:
The commission does not, nor should it, have the
authority to force a claimant to participate in
rehabilitation services. However, we are disturbed by the
prospect that claimant may have simply decided to forgo
retraining opportunities that could enhance re-employment
opportunities. An award of permanent total disability
compensation should be reserved for the most severely
disabled workers and should be allowed only when there is
no possibility for re-employment.
Id. at 529.
{¶ 18} Relator bore the burden of showing why she
did not participate in rehabilitation or retraining.
Relator did not submit any evidence that she sought out or
attempted retraining. Moreover, relator did not suggest
that retraining would be futile in light of her physical
condition. Absent evidence proving otherwise, we can only
reach the conclusion that relator failed to establish her
burden of proof that rehabilitation or retraining would be
in vain. The magistrate improperly shifted the burden of
proof from relator to the commission to reach the
recommendation that a writ of mandamus be granted and
relator awarded PTD compensation.[fn2]
{¶ 19} Pursuant to Civ.R. 53(E)(4), we have
conducted a full review of the magistrate’s decision,
relator and respondents’ objections, and submitted
memoranda. For the foregoing reasons, we overrule relator’s
objections and sustain respondents’ objections. We decline
to adopt that portion of the magistrate’s decision that
relieved relator from her burden to demonstrate that she
either engaged in educational or rehabilitative efforts or
that such efforts would be in vain. Relator’s request for a
writ of mandamus is denied.
Relator’s objections are overruled; respondents’ objections
are sustained; writ of mandamus denied.
KLATT, P.J., and DESHLER, J., concur.
DESHLER, J., retired of the Tenth Appellate District,
assigned to active duty under the authority of Section
6(C), Article IV, Ohio Constitution.
(APPENDIX A)
MAGISTRATE’S DECISION
IN MANDAMUS
{¶ 20} In this original action, relator, Daisy
Arthur, requests a writ of mandamus ordering respondent,
Industrial Commission of Ohio (“commission”), to vacate its
order denying permanent total disability (“PTD”)
compensation, and to enter an order granting said
compensation.
Findings of Fact:
{¶ 21} 1. Relator has two industrial claims. Claim
No. 01-842280 arose from her employment as a fast food
restaurant worker with respondent, White Castle Systems,
Inc. The claim is allowed for “bilateral carpal tunnel
syndrome; aggravation of pre-existing bilateral basilar
arthritis.” The commission recognizes July 16, 2001, as the
date of diagnosis in claim No. 01-842280.
{¶ 22} 2. Claim No. 74-44302 arose from relator’s
employment as a roller machine operator with respondent,
Clopay Corporation. The claim is allowed for “muscle sprain
to neck and right shoulder; occipital neuralgia; chronic
pain syndrome; adhesive capsulitis of the right shoulder.”
The injury in claim No. 74-44302 occurred September 5, 1974.
{¶ 23} 3. On September 4, 2005, relator filed an
application for PTD compensation. In her application,
relator states that she last worked on March 26, 2002.
{¶ 24} 4. On May 20, 2005, at the commission’s
request, relator was examined by Andrew Freeman, M.D. In
his narrative report, Dr. Freeman describes relator’s
surgical history arising from the July 16, 2001 diagnosis:
On July 16, 2001, she was working for White Castle System
Incorporated as a fast food worker when due to repetitive
motion in both hands, she developed bilateral carpal
tunnel syndrome with numbness and pain in both hands and
wrists. She had an EMG with nerve conduction velocities
on July 16, 2001, which showed right-sided severe carpal
tunnel syndrome similar to the 2000 EMG. In May 2002, she
underwent a left carpal tunnel release and in June 2002
she underwent a right carpal tunnel decompression with a
right flexor tenosynovectomy. She had continued pain at
the base of both thumbs and after the claim was allowed
for basilar arthritis (arthritis at the base of the
thumb), she underwent an arthrodesis with placement of
hardware in the left CMC joint in October 2002. She
underwent a similar operation in February 2003 in the
right thumb. On January 9, 2004, she had an excisional
interpositional arthroplasty for a metacarpal-carpal
trapezial joint on the right hand with the palmaris longus
tendon graft. She also had removal of the metal plate and
screws from the previous operation.
{¶ 25} 5. In his narrative report, Dr. Freeman also
describes relator’s occupational
history:
OCCUPATIONAL HISTORY: She has not worked since March 26,
2002. She states that she last worked for White Castle
from 1998 through 2002 as a fast food restaurant worker.
From 1964 to 1968, she was a machine operator operating a
security bag-making machine. From 1969 to 1970, she was a
machine operator slicing lunchmeats. From 1971 to 1975
until her shoulder and neck injury, she was a machine
operator operating a rolling machine, taping and
assembling plastic window shades. She did not work from
1975 to 1998.
{¶ 26} 6. In his narrative report, Dr. Freeman
concludes with a discussion and opinion:
DISCUSSION: Daisy Arthur has allowed conditions from 2
different claims being evaluated in this report. The neck,
right shoulder, occipital nerve, bilateral hand and thumb
conditions are all still symptomatic. OPINION: Based
solely on the allowed conditions listed in the claims
reviewed, and considering only the physical conditions
allowed: 1. These allowed conditions have reached MMI. 2.
Based on the American Medical Association’s Guides to the
Evaluation of Permanent Impairment 5th Edition, the
whole person impairment for the allowed physical
conditions in the claim in 28%. * * *
{¶ 27} 7. On May 20, 2005, Dr. Freeman completed a
Physical Strength Rating form. The form asks the examining
physician to indicate the classification of physical work
activity the injured worker may be capable of performing.
On the form, Dr. Freeman marked “sedentary work” but added
“with additional restriction of no repetitive hand
motions[.]”
{¶ 28} 8. Respondent, White Castle Systems, Inc.,
requested an employability assessment from Deanna Arbuckle,
a vocational expert. In her report dated July 11, 2005,
Arbuckle twice describes the opinion of Dr. Freeman.
{¶ 29} On page two of her report, Arbuckle states:
Andres [sic] Freeman, MD, DS (05/20/2005) has opined the
claimant capable of sedentary work.
{¶ 30} On page five of her report, Arbuckle states:
Medical evaluation and examination report from Andres
[sic] Freeman, MD, MS who opined Ms. Arthur has reached
maximum medical improvement with the ability to perform
sedentary work.
{¶ 31} 9. In her July 11, 2005 report, Arbuckle
states:
WORK HISTORY
The following represents the claimant’s work history
based on the information provided and utilizing the
Dictionary of Occupational Titles guidelines:
DOT Code Occupational Title Skill Level Strength
313.374-010 Cook, fast food 5-Skilled Medium
311.472-010 Fast food worker 2-Unskilled Light
692.685-250 Window shade cutter & mounted 3-Semi-skilled
Light
920.587-018 Packager, Meat 2-Unskilled Medium
316.684-014 Deli Cutter Slicer 2-Unskilled Light
649.685-014 Bag Machine Operator 3-Semi-skilled Medium
RESIDUAL EMPLOYABILITY PROFILE (TRANSFERABLE SKILLS)
Transferable skills are developed through past jobs that
can be utilized in other work. Specific skills, aptitudes
and academic abilities can be determined by virtue of what
a person demonstrated in the previous work history, and
this analysis provides the basis for an assessment of
vocational functioning capacities through identification
of acquired job skills, aptitudes, temperaments and
academic abilities.
Ms. Arthur has demonstrated the ability to work in a
position requiring average aptitudes of intelligence,
spatial perception, from perception, clerical perception,
motor coordination, finger dexterity, and manual
dexterity. She has also demonstrated 7-8th grade
Reasoning, and 4-6th grade Math and Language
proficiencies. She has demonstrated temperaments for
occupations that require performing repetitive or short
cycle work; attaining precise set limits, tolerances, and
standards; making judgements and decisions; and dealing
with people. Specific skills have been developed in the
Work Fields of Filling-packaging-wrapping (Unskilled);
shearing-shaving (Unskilled), structural
fabrication-install-repair (Semi-Skilled), cooking-food
preparing (Skilled), accommodating (Unskilled) and
merchandising sales (Unskilled). Through her prior work
activity, the claimant has gained experience with the
following materials, products, subject matter or services
(MPSMS): processed meat products; [dairy] products; wood
and metal fixtures; converted paper and paperboard
products [etc]; retail trade; production services; and
meal services except domestic[.]
OCCUPATIONS RELATED TO THE CLAIMANT’S WORK HISTORY:
Based on the report from Dr. Freeman, Ms. Arthur is
capable of sustained remunerative employment in the
sedentary capacity level. With this in mind, a
transferable skills analysis was completed based on “any
work within basic capacities[.”] This level is based only
on consideration of basic client capacities (the
occupational search profile). There is no consideration of
skills acquired through past work experience (WORK and
MPSMS). There is no assurance that the client has the
actual skills needed to perform the occupations at a
competitive level. Occupations with an SVP of 1 or 2
require no previous specific occupational experience and
can likely be learned within 30 days through on-the-job
performance. Occupations requiring supervisory and/or
management responsibility have been excluded from this
analysis as they were not demonstrated in the work
history.
DOT CODE TITLE AND DESCRIPTION REQUIRED STRENGTH SKILL
976.682-014 PRINTER OPERATOR, BLACK-AND-WHITE Sedentary
5-skilled
Operates printer to produce black-and-white photographic
prints from negatives.
249.587-018 DOCUMENT PREPARER, MICROFILMING Sedentary
2-unskilled
Prepares documents, such as brochures, pamphlets, and
catalogs, for microfilming, using paper cutter,
photocopying machine, rubber stamps, and other work
devices.
{¶ 32} 10. Following a July 28, 2005 hearing, a
staff hearing officer (“SHO”) issued an order denying
relator’s PTD application. The SHO’s order states:
The Injured Worker was examined at the request of the
Industrial Commission by Dr. Freeman on 05/20/2005. Dr.
Freeman indicated that the Injured [Worker] is right hand
dominant and that she indicated to him during the course
of the interview that she was not able to sit for more
[than] 10 minutes before her hands began to hurt. He
indicated however that the Injured Worker was observed
being able to sit for more than 30 minutes during the
interview portion of the examination without any
difficulty. Dr. Freeman examined the Injured Worker and
found that there was no tenderness to palpation over the
cervical spine but there was diffused mild spasm of the
paracervical musculature. The right shoulder demonstrated
no visible swelling or deformity and that there was no
tenderness over the AC joint or else where in the shoulder
region. Examination of the bilateral wrist demonstrated no
visible swelling or deformity of the wrist and that
Tinel’s, Finkelstein’s and Phalen’s tests were negative.
Examination of the thumbs bilaterally showed no
deformities or joint instability and that there was full
strength demonstrated with flexion and extension against
resistance at the IM and MP joints. He found that eth CMC
joints were hypertrophic and tender bilaterally. Dr.
Freeman found that the allowed orthopedic conditions have
reached maximum medical improvement and result in a 28%
whole person impairment rating. He concluded that the
Injured Worker would be able to engage in sedentary work
activity with additional restrictions of no repetitive
hand motions. The Staff Hearing Officer finds that the
Injured Worker’s orthopedic conditions have reached
maximum medical improvement and are permanent and
preclude the Injured Worker from returning to her former
position of employment. The Hearing Officer finds that the
injured Worker would be able to engage in sedentary work
activity which does not involve repetitive hand motions
based upon the 05/20/2005 report from Dr. Freeman. The
employer submitted a 07/11/2005 vocational report from Ms.
Arbuckle who opined that the Injured Worker’s age of 62
classifies the Injured Worker as a person closely
approaching advanced age and opined that her age would not
be seen as work prohibitive. The vocational expert found
that the Injured Worker had an 11th grade education but
did not obtain a GED. She found that the Injured Worker’s
11th grade education would be consistent with ability to
perform unskilled and semi-skill work activity. She also
noted that the Injured Worker could read, write and do
basic math. The vocational expert found that the Injured
Worker’s past work history consisted of unskilled
semi-skilled and skilled work activity as a cooker/cleaner
in a fast food restaurant, window shade machine operator,
meat slicer and machine operator and machine bag operator.
She found that the Injured Worker demonstrated the ability
to work in positions requiring average aptitudes of
intelligence, spatial perception, form perception,
clerical perception, motor coordination, finger dexterity
and manual dexterity. She noted that the Injured Worker
demonstrated the ability to read at the 7-8th grade level,
and engage in math and language skills at the 4-6th
grade level. She also indicated that the Injured Worker
demonstrates temperaments for occupations that require
repetitive or short cycle work, attaining precise set
limits, tolerances, and standards and making judgements
and decisions and dealing with people. She found that the
Injured Worker developed specific skills in the fields of
packaging-wrapping, shearing-shaving, structural
fabrication-installation repair and cooking-food
preparation. The Staff Hearing Officer finds that the
Injured Worker is 62 years of age, has an 11th grade
education and has previous work experience as a fast food
restaurant worker, machine operator. The Hearing Officer
finds that the Injured Worker’s age of 62 classifies the
Injured Worker as a person closely approaching advance[d]
age and that her age affects the Injured Worker’s ability
to adapt to new work situations and to compete with other
employees. The Hearing Officer finds that the Injured
Worker’s age is not a positive factor with regard to the
Injured Worker returning to sedentary employment. The
Hearing Officer finds that the Injured Worker has an
11th grade education and has the ability to read, write
and do basic math without difficulty. The Hearing Officer
finds that the [I]njured Worker’s 11th grade education
would be sufficient in order for the Injured Worker to
engage in entry level sedentary employment activity. The
Hearing Officer finds that the Injured Worker’s ability to
read, write and do basic math without difficulty as noted
on her application would be a positive factor with
regard to the Injured Worker engaging in entry level
sedentary employment activity or engaging in any type of
retraining which may be necessary to re-enter the work
force. The Hearing Officer finds that the Injured Worker’s
past work history has involved unskilled, semi-skilled and
skilled work activity. She has demonstrated the ability
to engage in positions which required average aptitudes of
intelligence and also requires spatial perception, form
perception, clerical perception, motor coordination and
manual dexterity. These positions also demonstrates the
Injured Worker’s ability to reason at the 7-8th grade
level and engage in math and language skills at the
4-6th grade level. The Hearing Officer finds that the
Injured Worker’s past work history has involved the
injured Worker engaging in employment which demonstrates
temperaments for occupations that require the ability to
attain precise set limits, tolerances and standards,
making judgements and decisions and dealing with people.
She has developed specific skills from her previous
employment including packaging-wrapping, structural
fabrication for installing and repairing, cooking and
food preparing and merchandising sales. The Hearing
[Officer] finds that the Injured Worker’s past work
history would not be a barrier to the Injured Worker
returning to the work force in an unskilled sedentary
position or engaging in retraining necessary for such
employment activity. The Staff Hearing Officer finds from
a review of the file that the Injured Worker has not
engaged in any type of retraining even though she has been
out of the work force for approximately 4 years since her
most recent injury in 2001. A review of the file
indicates that the Injured Worker did attempt to engage
in a rehabilitation program in 1981 but her
rehabilitation plan was closed as she missed several days
without calling either the team or the doctor and it was
determined that the Injured Worker did not want to
participate in rehabilitation at that time. The Hearing
Officer finds that the Injured Worker’s lack of engaging
in rehabilitation reflects negatively on the injured
Worker’s application for permanent and total disability
compensation. The Hearing Officer finds that an award of
permanent total disability compensation should be reserved
for the most severely disabled workers and should be
allowed only when there is no possibility for
re-employment. State ex rel. B. F. Goodrich Co. v.
Industrial Comm. (1995) 73 Ohio St. 3d 525. The Hearing
Officer finds that such a conclusion can not be drawn
based on the Injured Worker’s forgoing retraining
opportunities that could enhance reemployment
opportunities. Based upon the Injured Worker’s lack of
vocational retraining, as well as her education and work
experience, the Staff Hearing Officer finds that eth
Injured Worker would be able to engage in sustained
remunerative work activity and is not permanently and
totally disabled. Therefore the Hearing Officer denies the
Injured Worker’s Application for Permanent Total
Disability Compensation filed 03/04/2005.
{¶ 33} 11. On September 22, 2005, relator, Daisy
Arthur, filed this mandamus action.
Conclusions of Law:
{¶ 34} Two main issues are presented: (1) whether
the Arbuckle report provides some evidence upon which the
commission can rely to support its non-medical analysis,
and (2) whether the commission abused its discretion in
holding relator accountable for not having engaged in any
type of retraining since her most recent injury in 2001.
{¶ 35} The magistrate finds: (1) the Arbuckle report
provides some evidence upon which the commission can rely
to support the commission’s non-medical analysis, and (2)
the commission did abuse its discretion in holding relator
accountable for not having engaged in any type of
retraining since her most recent injury in 2001.
{¶ 36} Accordingly, it is the magistrate’s decision
that this court issue a writ of mandamus, as more fully
explained below.
{¶ 37} Turning to the first issue, it is settled law
that the commission is the expert on the non-medical
factors. State ex rel. Jackson v. Indus. Comm. (1997), 79
Ohio St.3d 266, 271. The commission may credit offered
vocational evidence, but expert opinion is not critical or
even necessary. Id.
{¶ 38} Here, the SHO’s order reveals that the
commission conducted its own analysis of the non-medical
factors with some reliance upon portions of the Arbuckle
report. It was proper for the commission to do so.
{¶ 39} Equivocal medical opinions are not evidence.
State ex rel. Eberhardt v. Flxible (1994), 70 Ohio St.3d
649, 657. Equivocation occurs when a doctor repudiates an
earlier opinion, renders contradictory or uncertain
opinions, or fails to clarify an ambiguous statement. Id.
{¶ 40} Citing Eberhardt, relator argues that the
Arbuckle report is equivocal and, thus, cannot provide some
evidence to the commission to support its non-medical
analysis. Relator argues that the Arbuckle report is
equivocal because allegedly Arbuckle mischaracterizes Dr.
Freeman’s opinion regarding physical work capability.
According to relator, Arbuckle’s failure to indicate Dr.
Freeman’s restriction of “no repetitive hand motions” flaws
Arbuckle’s entire report, thus requiring that the entire
report be eliminated from evidentiary consideration.
{¶ 41} To further her argument, relator contends
that Arbuckle’s alleged failure to recognize Dr. Freeman’s
restriction of “no repetitive hand motions” led Arbuckle to
erroneously conclude that relator is capable of performing
employment as a printer operator (black and white) and a
“document preparer, microfilming[,]” which relator asserts
are “jobs that would be hand intensive in nature.”
(Relator’s brief at 8.) The magistrate disagrees with
relator’s argument in several respects.
{¶ 42} To begin, relator’s argument that Arbuckle
mischaracterized Dr. Freeman’s opinion as to physical
capacity does not demonstrate an equivocation even if the
alleged mischaracterization is accepted.
{¶ 43} Secondly, even if it is accepted that
Arbuckle mischaracterized Dr. Freeman’s opinion, such would
not necessarily flaw Arbuckle’s entire report.
{¶ 44} The SHO’s order does not indicate commission
reliance upon Arbuckle’s entire report. The SHO did rely on
Arbuckle’s presentation and analysis of relator’s work
history. However, the SHO did not adopt Arbuckle’s
employment options. The analysis of relator’s work history
would necessarily be unaffected by any alleged
mischaracterization of Dr. Freeman’s medical opinion.
{¶ 45} Moreover, there is no requirement that a
vocational expert exhaustively list all the medical
restrictions when referring to a medical report. The
vocational expert is permitted some degree of latitude in
describing or summarizing the medical opinion. Here,
relator’s challenge to Arbuckle’s description of Dr.
Freeman’s opinion invites some degree of speculation as to
Arbuckle’s understanding of the report. Because it is the
commission that weighs the evidence, it is inappropriate
for this court to accept relator’s view of Arbuckle’s
report. See State ex rel. Baker v. Formica Corp., Franklin
App. No. 05AP-137, 2005-Ohio-6373.
{¶ 46} Turning to the second issue, in the case
cited in the SHO’s order, State ex rel. B.F. Goodrich Co.
v. Indus. Comm. (1995), 73 Ohio St.3d 525, 529, the court
states:
* * * [E]vidence of record indicates that claimant did
not participate in rehabilitation services offered by the
commission. There is no indication that claimant’s lack of
participation was based on a physician’s medical advice,
or on a vocational evaluation that concluded that she
was intellectually, psychologically or emotionally
incapable of retraining. Absent such evidence, the
implication is that claimant simply chose not to avail
herself of the opportunity to receive retraining and
potential re-employment. The commission does not, nor
should it, have the authority to force a claimant to
participate in rehabilitation services. However, we are
disturbed by the prospect that claimant may have simply
decided to forgo retraining opportunities that could
enhance re-employment opportunities. An award of permanent
total disability compensation should be reserved for the
most severely disabled workers and should be allowed
only when there is no possibility for re-employment.
{¶ 47} Pertinent here, the SHO’s order again states:
The Staff Hearing Officer finds from a review of the file
that the Injured Worker has not engaged in any type of
retraining even though she has been out of the work force
for approximately 4 years since her most recent injury in
2001.
{¶ 48} If we accept relator’s statement in her PTD
application or Dr. Freeman’s statement in his report,
relator last worked on March 25, 2002, which is
approximately three years and four months prior to the PTD
hearing date. Dr. Freeman indicates in his report, which
the commission accepted, that relator underwent surgeries
in May, June, and October 2002, February 2003, and January
2004. The SHO failed to address how these surgeries would
permit relator to engage in retraining. Moreover, Dr.
Freeman does not opine that relator was a candidate for
retraining for the period at issue. It appears that the
SHO’s analysis of relator’s rehabilitation efforts fails to
address a key issue. Accordingly, this magistrate concludes
that the SHO abused his discretion in determining that lack
of rehabilitation efforts negatively affects on the PTD
application.
{¶ 49} Accordingly, for all the above reasons, it is
the magistrate’s decision that this court issue a writ of
mandamus ordering respondent, Industrial Commission of
Ohio, to vacate its SHO’s order of July 28, 2005, and, in a
manner consistent with this magistrate’s decision, enter a
new order that adjudicates the PTD application.
/s/Kenneth W. Macke
KENNETH W. MACKE
[fn1] Relator attempted rehabilitation in 1981, following
her first industrial claim from 1974. However, the plan was
closed after relator failed to show up for several days
without notifying her doctor or rehabilitation team.
[fn2] Although not dispositive to the outcome of this
proceeding, we note that on a prior occasion,
rehabilitative services were made available to relator.
However, she failed to attend sessions without providing
any notice to her doctor or rehabilitation team. Her
previous behavior indicates that relator would neither seek
out rehabilitation or retraining, nor would it be likely
that she would avail herself of those services if they were
again made available to her.