[Cite as State ex rel. Gibbs v. Thistledown, Inc., 2014-Ohio-2731.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

The State of Ohio ex rel. Elizabeth Gibbs,               :

                 Relator,                                :

v.                                                       :                No. 13AP-487

Thistledown, Inc. and                                    :            (REGULAR CALENDAR)
Industrial Commission of Ohio,
                                                         :
                 Respondents.
                                                         :



                                           D E C I S I O N

                                       Rendered on June 24, 2014


                 The Friedman Law Firm, Yisroel Goldstein, and Zeev
                 Friedman, for relator.

                 Jackson Lewis P.C., Ryan J. Morley, and Michelle T. Hackim,
                 for respondent Thistledown, Inc.

                 Michael DeWine, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

SADLER, P.J.
        {¶ 1} In this original action, relator, Elizabeth Gibbs, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order that denied her application for permanent total disability ("PTD") compensation
and to enter an order granting the compensation.
        {¶ 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 who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate concluded that
No. 13AP-487                                                                                            2


the commission did not abuse its discretion in determining that relator unjustifiably
refused vocational rehabilitation services and that such refusal is a factor weighing against
an award of PTD compensation.                Accordingly, the magistrate concluded that the
commission's determination regarding relator's unjustified refusal of vocational
rehabilitation services is supported by some evidence and recommended that this court
deny the request for a writ of mandamus.
I. RELATOR'S OBJECTIONS
        {¶ 3} Relator presents the following amended objections to the magistrate's
decision:1
                [I.] [T]he Magistrate found that the Industrial Commission
                had "some evidence" to rely upon in denying Relator's
                Permanent Total disability application even though he
                determined that the Industrial Commission incorrectly
                interpreted the evidence.

                [II.] [T]he Magistrate ignored a significant error in the
                Industrial Commission's order with regard to Relator's
                request for vocational rehabilitation services and therefore the
                Magistrate's decision is flawed.

II. DISCUSSION
        {¶ 4} No objections have been filed to the magistrate's findings of fact. After an
independent review of the same, we adopt those findings of fact as our own. For ease of
discussion, we provide a brief summarization of the facts relevant to relator's objections.
        {¶ 5} Relator was diagnosed as having bilateral carpal tunnel syndrome arising
from her employment as a cashier with respondent, Thistledown, Inc. Relator's industrial
claim for bilateral carpal tunnel syndrome was allowed in 2008. Relator's managed care
organization referred her on three separate occasions, April 17, 2009, May 3, 2010, and
July 17, 2010, to the Ohio Bureau of Workers' Compensation ("BWC") to participate in
vocational rehabilitation. On each occasion, relator did not participate in vocational
rehabilitation. Due to relator's non-participation, BWC closed the referrals and issued
closure reports for each referral.          While the first two closure reports indicate that


1These objections are gleaned from the first paragraph of relator's amended objections to the magistrate's
decision filed with the court on March 3, 2014.
No. 13AP-487                                                                                    3


extenuating circumstances existed surrounding relator's non-participation in vocational
rehabilitation, the third closure report, issued on August 24, 2010, denotes only that
relator stated that she does not wish to participate in rehabilitation services at this time.
       {¶ 6} Relator applied for PTD on November 22, 2011. In considering relator's
PTD claim, the commission examined whether relator participated in vocational
rehabilitation. The commission concluded that relator did not participate in vocational
rehabilitation on three separate occasions and that such inaction demonstrated a lack of
good-faith effort to pursue vocational retraining when it was available to her. In denying
relator's PTD claim, the commission concluded that relator's refusal of vocational
rehabilitation was one factor to be considered amongst other medical and non-medical
factors under consideration.
       {¶ 7} In reviewing the medical and non-medical factors relied upon by the
commission, the magistrate's decision notes that the commission's decision inaccurately
implies that all three file closure reports lack extenuating circumstances to justify relator's
non-participation in vocational rehabilitation when, in fact, only the August 24, 2010
closure report demonstrates that relator unjustifiably refused to participate. However,
because the magistrate concluded that the August 24, 2010 closure report provided some
evidence to support the commission's conclusion that relator refused vocational
rehabilitation services, the magistrate determined that the commission did not abuse its
discretion in considering relator's unjustified refusal of vocational rehabilitation as a
factor weighing against PTD.        Moreover, the magistrate also recognized that the
commission considered other medical and non-medical factors and did not abuse its
discretion in denying relator's claim for PTD compensation.
       A. Standard for Mandamus
       {¶ 8} To obtain a writ of mandamus, a relator must demonstrate that it has a clear
legal right to the relief sought and that the commission has a clear legal duty to provide
such relief. State ex rel. AutoZone, Inc. v. Indus. Comm., 117 Ohio St.3d 186, 2008-Ohio-
541, ¶ 14. "To show the clear legal right, relator must demonstrate that the commission
abused its discretion by entering an order unsupported by some evidence in the record."
State ex rel. Hughes v. Goodyear Tire & Rubber Co., 26 Ohio St.3d 71, 73 (1986). When
the record contains "some evidence" to support the commission's factual findings, a court
No. 13AP-487                                                                                 4


may not disturb the commission's findings in mandamus. State ex rel. Fiber-Lite Corp. v.
Indus. Comm., 36 Ohio St.3d 202 (1988), syllabus. " 'Where a commission order is
adequately explained and based on some evidence, * * * the order will not be disturbed as
manifesting an abuse of discretion.' " State ex rel Avalon Precision Casting Co. v. Indus.
Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, ¶ 9, quoting State ex rel. Mobley v. Indus.
Comm., 78 Ohio St.3d 579, 584 (1997).
       B. First Objection
       {¶ 9} In her first objection, relator contends that, because the magistrate
determined that the commission incorrectly interpreted the evidence to establish that
relator unjustifiably refused to participate in vocational rehabilitation three times, there is
a lack of evidence to establish she refused vocational rehabilitation. Specifically, relator
contends that the August 24, 2010 closure report alone is insufficient to establish some
evidence in support of the commission's determination that relator's refusal to participate
in rehabilitation services is a factor weighing against an award of PTD compensation. We
disagree.
       {¶ 10} Initially, we note that relator does not challenge the other medical and non-
medical factors relied upon by the commission in denying her PTD claim and, thus, we do
not address them further. In addressing the issue raised by relator's first objection, the
magistrate found that the August 24, 2010 closure report states that relator refused to
participate in vocational services without providing extenuating circumstances to justify
her non-participation and concluded said closure report constitutes some evidence
establishing that relator unjustifiably refused to participate in vocational rehabilitation.
Accordingly, the magistrate determined that the commission did not abuse its discretion
in considering relator's refusal of vocational rehabilitation as a factor in denying her
request for PTD compensation.
       {¶ 11} Though relator continues to assert that there is no evidence to support the
commission's conclusion that relator unjustifiably refused vocational rehabilitation, we
agree with the magistrate's reasoning in determining that one unjustified refusal of
vocational rehabilitation services is sufficient to establish some evidence that relator
unjustifiably refused vocational rehabilitation.         Accordingly, we reject relator's
contentions to the contrary and find no merit to relator's objection.
No. 13AP-487                                                                                 5


       {¶ 12} Accordingly, relator's first objection is overruled.
       C. Second Objection
       {¶ 13} In her second objection, relator contends that both the magistrate and the
commission ignored that, on May 16, 2011, relator's doctor requested that she be referred
for vocational rehabilitation. Contrary to relator's assertion, both the magistrate and the
commission addressed this issue. The magistrate's decision states that "[o]n May 16,
2011, Dr. Gupta completed form C-9 on which he requested, on relator's behalf,
'Vocational Rehab[ilitation] Therapy.' " (Magistrate's Decision, 4.)          The magistrate's
decision then dedicates the next two pages to discussing the outcome of relator's request,
including the subsequent administrative appeals.
       {¶ 14} Additionally, the commission's decision discusses the result of relator's
doctor's request for vocational rehabilitation stating that "the Commission recognizes that
the Injured Worker was denied vocational rehabilitation services by the Bureau of
Workers' Compensation in 2011," but determined that relator's prior refusals of vocational
rehabilitation demonstrated a lack of good-faith effort to pursue vocational retraining
when it was available to her. (Dec. 11, 2012 Record of Proceedings, 2.) Thus, we find that
neither the magistrate's nor the commission's decision ignored that relator's doctor
requested a referral for vocational rehabilitation services on May 16, 2011.
       {¶ 15} Accordingly, relator's second objection is overruled.
III. CONCLUSION
       {¶ 16} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We, therefore, overrule
relator'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 contained therein. Accordingly,
the requested writ of mandamus is hereby denied.
                                                                          Objections overruled;
                                                                     writ of mandamus denied.

                             TYACK and BROWN, JJ., concur.
                        _____________________________
No. 13AP-487                                                                      6


                                    APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State of Ohio ex rel.                   :
Elizabeth Gibbs,
                                            :
              Relator,
                                            :
v.                                                        No. 13AP-487
                                            :
Thistledown, Inc. and                               (REGULAR CALENDAR)
Industrial Commission of Ohio,              :

              Respondents.                  :



                            MAGISTRATE'S DECISION

                              Rendered on February 11, 2014


              The Friedman Law Firm, Yisroel Goldstein and Zeev
              Friedman, for relator.

              Jackson Lewis LLP, Ryan J. Morley and Michelle T.
              Hackim, for respondent Thistledown, Inc.

              Michael DeWine, Attorney General, and Justine S. Casselle,
              for respondent Industrial Commission of Ohio.


                                    IN MANDAMUS

       {¶ 17} In this original action, relator, Elizabeth Gibbs, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate its order of December 11, 2012 that denied permanent total disability ("PTD")
compensation, and to enter an order granting the compensation.
No. 13AP-487                                                                          7


Findings of Fact:
      {¶ 18} Relator has three industrial claims arising in the course of her
employment as a "mutuel clerk" for respondent Thistledown, Inc. (“employer”), a state-
fund employer.
      {¶ 19} 2. On July 22, 1989, relator sustained a lumbosacral strain. This injury
was assigned claim No. 89-26490.
      {¶ 20} 3. On March 27, 2007, relator sustained a right knee contusion. This
injury was assigned claim No. 07-323940.
      {¶ 21} 4. On September 3, 2008, relator was diagnosed as having "bilateral
carpal tunnel syndrome." The industrial claim (No. 08-367558) was allowed for that
condition in December 2008.
      {¶ 22} In July 2009, relator underwent a right carpal tunnel release.          In
November 2009, relator underwent a left carpal tunnel release.
      {¶ 23} 5. Earlier, on April 17, 2009, relator was referred for vocational
rehabilitation services by her managed care organization ("MCO").
      {¶ 24} 6. However, on May 7, 2009, on form RH-21, the Ohio Bureau of Workers'
Compensation ("bureau") closed relator's vocational rehabilitation file. In the May 7,
2009 closure report, the vocational case manager stated:
             Ms. Gibbs is not considered a good candidate for vocational
             rehabilitation at this time pending surgery for bilateral
             carpal tunnel syndrome. She would be considered medically
             instable until a reasonable time for recovery after such
             surgery. It would be reasonable to reconsider her for
             vocational services at that time and exploration of work
             availability with her employer should the result of the
             surgery be favorable.

      {¶ 25} 7. On May 3, 2010, relator was again referred for vocational rehabilitation
services by her MCO.
      {¶ 26} 8. On May 27, 2010, on form RH-21, the bureau again closed relator's
vocational rehabilitation file. In the May 27, 2010 closure report, the vocational case
manager stated:
             This case manager telephoned Ms. Gibbs on 5/3/10 and at
             that time Ms. Gibbs wanted to defer talking about vocational
No. 13AP-487                                                                           8


              services. This case manager again spoke with Ms. Gibbs on
              5/10/10 and Ms. Gibbs at that time wanted to defer
              vocational services for 2 weeks until her therapy ended. A
              phone call to Ms. Gibbs was returned by Ms. Gibbs on
              5/26/10. At that time Ms. Gibbs stated that she is not
              interested in vocational services at this time, noting that her
              therapy is coming to an end and that she expects to return to
              work sometime in July. This matter was staffed with the
              appropriate personnel at 1-888-OhioComp, and it was
              agreed that Ms. Gibbs' vocational file will be closed pre plan
              due to her lack of interest in vocational services.

       {¶ 27} 9. On July 17, 2010, relator was again referred for vocational
rehabilitation services by her MCO.
       {¶ 28} 10. However, on August 24, 2010, on form RH-21, the bureau again closed
relator's vocational rehabilitation file.   In the August 24, 2010 closure report, the
vocational case manager stated:
              Ms. Gibbs' initial interview was held on 8/4/10 at a
              restaurant near her home. At the time of the interview Ms.
              Gibbs declined to sign the rehabilitation agreement and the
              consent to release medical information form, stating that she
              wanted to discuss these forms first with her legal counsel and
              her physician before signing them. Ms. Gibbs telephoned this
              case manager on 8/18/10 stating that she was going to have
              her signed forms faxed over to this case manager. However,
              the signed forms were not received, and when this case
              manager telephoned Ms. Gibbs on 8/20/10, she stated that
              she has decided that she does not want to participate in
              vocational services at this time. * * * [I]t was decided that
              Ms. Gibbs' vocational file would be closed as she is not
              interested in vocational services.

       {¶ 29} 11. On October 1, 2010, treating physician Arun Gupta, M.D., wrote:
              Ms. Gibbs is under my care for bilateral carpal tunnel, and
              because of her wrist pain is unable to perform any
              purposeful duties, at any given job.

       {¶ 30} 12. On October 8, 2010, relator filed an application for PTD
compensation. In support, relator submitted the October 1, 2010 report of Dr. Gupta.
       {¶ 31} 13. On December 1, 2010, at the employer's request, relator was examined
by Paul Freedman, M.D. In his report dated December 3, 2010, Dr. Freedman opined:
No. 13AP-487                                                                            9


              The claimant's overall function is consistent with being
              capable of working. She does require restrictions, but such
              restrictions would not at all prevent her from returning to
              remunerative employment. The restrictions would include
              avoiding frequent repetitive forceful gripping and a lifting
              limit of 20 lbs. These restrictions should be considered
              permanent.

        {¶ 32} 14. On January 3, 2011, at the commission's request, relator was examined
by orthopedic surgeon Sheldon Kaffen, M.D.         Dr. Kaffen examined relator for the
allowed conditions of all three industrial claims. In his six-page narrative report, Dr.
Kaffen opined:
              Based on the history and physical examination and
              referencing the AMA Guides to the Evaluation of Permanent
              Impairment, 5th Edition, it is my conclusion the injured
              worker has sustained a permanent impairment of 4% of the
              whole person due to the allowed conditions in all three
              claims.

        {¶ 33} 15. On January 3, 2011, Dr. Kaffen completed a Physical Strength Rating
form. On the form, Dr. Kaffen indicated by his mark that relator is capable of sedentary
work.
        {¶ 34} 16. Following a May 5, 2011 hearing, a staff hearing officer ("SHO") issued
an order denying relator's PTD application. Relying upon the reports of Drs. Kaffen and
Freedman, the SHO determined that the industrial injuries permit sedentary work.
After reviewing the non-medical disability factors, the SHO determined that relator is
able to perform sustained remunerative employment.
        {¶ 35} 17. On May 16, 2011, Dr. Gupta completed form C-9 on which he
requested, on relator's behalf, "Vocational Rehab[ilitation] Therapy."
        {¶ 36} 18. Dr. Gupta's C-9 prompted the bureau to request a file review from
vocational rehabilitation consultant James R. Greene.
        {¶ 37} 19. On May 31, 2011, Mr. Greene issued a three-page report, stating:
              File Summary: Ms. Gibbs developed bilateral carpal
              tunnel syndrome while employed for Thistledown, Employer
              of Record (EOR) as a pari mutuel clerk. Ms. Gibbs' date of
              injury is 9/3/2008. Initially, injured worker sought
              treatment from her family physician. She later was referred
No. 13AP-487                                                                      10


             to Dr. Richardson. Dr. McKenzie performed injured worker's
             surgery on her left wrist in 2/2009 as well as surgery on her
             right wrist in 11/2009. Injured worker has received
             occupational and physical therapy for this injury.

             Ms. Gibbs is a 64-year-old female who graduated from high
             school in 1965. She participated in vocational training
             program in 1970 that required keypunch machine training.
             Injured worker's work history consists of elevator operator,
             packer, drill press operator, and most recently, with the EOR
             as a pari mutual ticket seller for twenty-three years.

             Ms. Gibbs was re-referred for vocational rehabilitation
             services on 5/18/2011. Injured worker has not worked since
             9/12/2008. Case records note numerous barriers preventing
             injured worker from being a suitable candidate for vocational
             rehabilitation services: EOR cannot accommodate injured
             worker with a position to return to; injured worker is unable
             to drive due to her injury; injured worker continues to
             experience pain; and injured worker has refused vocational
             rehabilitation services three previous times. Case
             documentation indicates that the nurse case manager does
             not indicate that injured worker is a suitable candidate for
             vocational rehabilitation services. Case records note that
             injured worker has received Social Security Disability
             benefits in the amount of $1,117.00 per month since
             February 2009. The vocational rehabilitation coordinator
             closed the file as non-feasible.

             Conclusion and Recommendations: Based on my
             review, Ms. Gibbs' file should remain closed. Injured worker
             has numerous barriers to returning to work and has refused
             vocational rehabilitation services on three previous referrals.
             Injured worker is not feasible for vocational rehabilitation
             services at this time.

      {¶ 38} 20. On June 3, 2011, the bureau issued an order denying relator's C-9
request. Relator administratively appealed.
      {¶ 39} 21. Following a July 5, 2011 hearing, a district hearing officer ("DHO")
issued an order denying relator's C-9 request. The DHO's order explains:
             Upon review and consideration of the evidence in the claim
             file and statements at hearing the vocational rehabilitation
             closure as reflected in the Bureau of Workers' Compensation
             order dated 06/03/2011 remains in full force and effect.
No. 13AP-487                                                                             11


               Mr. Greene gives a reasoned opinion as reflected in his letter
               dated 05/31/2011. He provides multiple factors indicating
               the reason to conclude that the Injured Worker is not
               currently feasible for vocational rehabilitation.

         {¶ 40} 22. Relator administratively appealed the DHO's order of July 5, 2011.
         {¶ 41} 23. Following an August 16, 2011 hearing, an SHO issued an order
affirming the DHO's order of July 5, 2011. The SHO's order explains:
               The underlying decisions to close the vocational
               rehabilitation file due to non-feasibility are affirmed. The
               report from vocational rehabilitation consultant James
               Greene, B.S., CDMS, LSW, CCM, 05/31/2011, is relied upon.
               The consultant lists the multiple factors as to why Injured
               Worker is not currently feasible for vocational rehabilitation.
               Injured Worker was previously closed for vocational
               rehabilitation services 05/07/2009, 05/27/2010, and
               08/24/2010, due to non-feasibility due to medical instability
               and lack of interest in services with the goal of returning to
               work. Injured Worker's medical status has not been shown to
               have changed and the record shows very limited
               rehabilitation potential. The opinion from Mr. Greene is
               found to be credible.

         {¶ 42} 24. On September 15, 2011, another SHO mailed an order refusing
relator's administrative appeal from the SHO's order of August 16, 2011.
         {¶ 43} 25. On November 10, 2011, Dr. Gupta wrote:
               This is to certify that Ms. Gibbs is my patient and suffers
               from Bilateral Carpal Tunnel. She had surgery and physical
               therapy, but still suffers with severe pain and cannot hold
               any amount of weight, she drops things and has a hard time
               with day to day chores. I feel that she should be placed on
               Permanent Total Disability because she is not able to return
               to work.

         {¶ 44} 26. On November 22, 2011, relator filed her second application for PTD
compensation. In support, relator submitted the November 10, 2011 report of Dr.
Gupta.
         {¶ 45} 27. The PTD application form asks the applicant to list her workers'
compensation claims. In response, relator only listed claim No. 08-367558.
No. 13AP-487                                                                                12


       {¶ 46} 28. On February 23, 2012, at the commission's request, relator was
examined by orthopedic surgeon Dennis A. Glazer, M.D. Dr. Glazer examined for two of
the industrial claims, i.e., claim Nos. 08-367558 and 07-323940.          In his six-page
narrative report dated March 25, 2012, Dr. Glazer opines:
              Regarding contusion of the right knee, there are no
              limitations. The claimant can walk, sit, stand, climb, bend
              and kneel without restriction.

              With regard to the carpal tunnel syndrome, the claimant can
              do no rapid repetitive motion. She can only lift 3 - 5 lb[s].
              intermittently. She cannot use her hands for fine
              manipulation, or pushing or pulling with her hands.

       {¶ 47} 29. In March 2012, Dr. Glazer completed a Physical Strength Rating form.
On the form, Dr. Glazer indicated by his mark that relator is capable of sedentary work.
In the space provided under the pre-printed query "[f]urther limitations, if indicated,"
Dr. Glazer wrote in his own hand:
              No lifting with hands over 3 lbs[.] No rapid use or fine motor
              work with hands[.]

       {¶ 48} 30. Following an August 30, 2012 hearing, an SHO mailed an order on
September 26, 2012 denying relator's second PTD application. The order discusses the
reports of Drs. Gupta, Kaffen, Freedman, and Glazer.
       {¶ 49} Thereafter, the SHO briefly discusses efforts at vocational rehabilitation:
              The multiple attempts at vocational rehabilitation were
              unsuccessful due to either Ms. Gibbs disinterest in same or
              her being medically unstable when a program was suggested.
              The last vocational rehabilitation closure resulted in a letter
              of 5/20/11 noting that due to the many prior unsuccessful
              attempts to initiate a vocational rehabilitation program,
              combined with Ms. Gibbs lack of desire to participate in
              same, caused her latest file to be closed.

       {¶ 50} 31. On October 12, 2012, relator moved for reconsideration of the SHO's
order of August 30, 2012.
       {¶ 51} 32. On November 20, 2012, the three-member commission mailed an
interlocutory order, stating:
No. 13AP-487                                                                       13


             It is the finding of the Industrial Commission that the
             Injured Worker has presented evidence of sufficient
             probative value to warrant adjudication of the request for
             reconsideration regarding the alleged presence of a clear
             mistake of fact in the order from which reconsideration is
             sought, and a clear mistake of law of such character that
             remedial action would clearly follow.

             Specifically, it is alleged that the Staff Hearing Officer failed
             to fully analyze the non-medical disability factors and failed
             to address the additional physical restrictions enumerated by
             Dennis Glazer, M.D.

             Based on these findings, the Industrial Commission directs
             that the Injured Worker's request for reconsideration, filed
             10/12/2012, is to be set for hearing to determine whether the
             alleged mistakes of fact and law as noted herein are sufficient
             for the Industrial Commission to invoke its continuing
             jurisdiction.

      {¶ 52} 33. On December 11, 2012, the three-member commission heard relator's
request for reconsideration and also heard the merits of the PTD application.
      {¶ 53} 34. On February 26, 2013, the three-member commission mailed an order
that exercises continuing jurisdiction over the SHO's order of August 30, 2012 (mailed
September 26, 2012), vacates that order, and then determines the merits of the second
PTD application.
      {¶ 54} Denying the merits of the second PTD application, the commission's order
explains:
             Notwithstanding the granting of the Injured Worker's
             request for reconsideration, filed 10/12/2012, the Injured
             Worker's IC-2 Application for Compensation for Permanent
             Total Disability, filed 11/22/2011, remains denied.

             The Commission notes that the Injured Worker has two
             industrial injuries. The first industrial injury occurred on
             03/27/2007. This injury resulted from the Injured Worker
             banging her right knee on the corner of a money drawer. The
             Injured Worker went to the hospital, and received stitches
             which were later removed. Claim 07-323940 has been
             allowed for CONTUSION OF RIGHT KNEE.
No. 13AP-487                                                                  14


           The second injury occurred on 09/03/2008. This injury
           resulted from the Injured Worker's repetitive hand duties as
           a paramutual clerk (a cashier). The Injured Worker last
           worked in September 2008. Claim number 08-367558 has
           been allowed for BILATERAL CARPAL TUNNEL
           SYNDROME. The Injured Worker has had two surgeries in
           the 2008 claim. A right carpal tunnel release was performed
           on 07/22/2009, and a left carpal tunnel release was
           performed on 11/18/2009.

           Addressing the merits of permanent and total disability, the
           Commission finds the 03/25/2012 report of Dennis Glazer,
           M.D., to be persuasive as to the Injured Worker's residual
           functional capacity. Dr. Glazer opined the Injured Worker
           was capable of performing sedentary employment. Dr.
           Glazer also found the Injured Worker could not perform
           work involving rapid repetitive hand motion, and limited the
           Injured Worker's lifting to only three to five pounds
           intermittently. Dr. Glazer also restricted the Injured Worker
           from using her hands for fine manipulation or
           pushing/pulling. Based on Dr. Glazer's opinion, the
           Commission finds that the Injured Worker retains the
           capacity to perform sedentary work consistent with the
           previously listed restrictions. Thus, an analysis of the Injured
           Worker's nonmedical disability factors is necessary.

           The record reveals the following nonmedical disability
           factors. The Injured Worker is 66 years old, is a high school
           graduate, and has worked as a drill press operator, suit
           packer, elevator operator and as a paramutal clerk.

           The Injured Worker's age, 66, is found to be a negative
           vocational factor. However, the Injured Worker's age, in and
           of itself does not prevent the Injured Worker from obtaining
           work consistent with her restrictions. Further, the fact
           remains that some employers prefer to hire older workers.

           The Injured Worker's education, a high school graduate, is
           found to be a positive vocational asset. With this level of
           education, and based on the information provided in the IC-
           2 application, the Injured Worker has adequate literacy and
           math skills, enabling her to understand training manuals or
           other written employment materials in order to successfully
           complete training programs to qualify her for sedentary
           employment consistent with her restrictions.
No. 13AP-487                                                                 15


           The Injured Worker's job history is found to be a positive
           vocational factor. While it may not have provided her with
           immediately transferable sedentary job skills consistent with
           her restrictions, it has allowed her to perform skilled work
           throughout her employment history. For instance, the
           Injured Worker's employment as a drill press operator and
           paramutual clerk are skilled positions that required the
           Injured Worker to work with people, learn new job duties
           and follow written instructions. Consequently, the Injured
           Worker has successfully completed on-the-job training and
           that she became qualified to perform new types of
           employment. This ability to learn new job skills when
           necessary would allow the Injured Worker to undergo job
           training consistent with her restrictions through a formal
           retraining process or through on-the-job training.

           In reference to the Injured Worker's ability to complete job
           retraining or rehabilitation, the Commission recognizes that
           the Injured Worker was denied vocational rehabilitation
           services by the Bureau of Workers' Compensation in 2011,
           however, the Commission notes this denial specifically
           mentioned that one of the major barriers to offering the
           Injured Worker these vocational services was the fact the
           Injured Worker had refused vocational rehabilitation on
           three previous referrals. The Injured Worker's refusal of
           vocational services three times demonstrates a lack of a good
           faith effort to pursue vocational retraining when it was
           available to her. Therefore, while the Commission does
           accept the Bureau of Workers' Compensation's findings of
           the Injured Worker being declared non-feasible in 2011 for
           vocational rehabilitation, it is nevertheless the Commission's
           responsibility to ultimately decide issues of the Injured
           Worker's potential to be rehabilitated. State ex rel. Rodriguez
           v. Indus Comm., 67 Ohio St.3d 210, 616 N.E.2d 929 (1993).

           It is additionally noted that, pursuant to State ex rel. B.F.
           Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525, 653
           N.E.2d 525 (1995), an award of permanent total disability
           compensation is to be reserved for the most severely disabled
           workers and should be allowed only when there is no
           possibility for reemployment. Therefore, the Injured
           Worker's refusal of vocational rehabilitation services would
           clearly be a factor weighing against awarding permanent
           total disability.
No. 13AP-487                                                                            16


              In summary, the Commission finds that even though the
              Injured Worker's age is not a positive vocational factor, it
              does not exclusively preclude the Injured Worker from
              reemployment, especially considering the Injured Worker
              possesses the literacy/math skills to learn new job skills
              consistent with her restrictions. Therefore, it is reasonable to
              conclude the Injured Worker is not permanently and totally
              disabled, and for the aforementioned reasons, the IC-2
              application is denied.

       {¶ 55} 35. On June 7, 2013, relator, Elizabeth Gibbs, filed this mandamus action.
Conclusions of Law:
       {¶ 56} The main issue is whether the commission abused its discretion in
determining that relator unjustifiably refused offers of vocational rehabilitation services
such that the determination can be used as a factor weighing against an award of PTD
compensation.
       {¶ 57} The magistrate finds no abuse of discretion.          Accordingly, it is the
magistrate's decision that this court deny relator's request for a writ of mandamus, as
more fully explained below.
       {¶ 58} The Supreme Court of Ohio has repeatedly addressed the obligation of a
PTD claimant to undergo opportunities for rehabilitation. State ex rel. B.F. Goodrich
Co. v. Indus. Comm. (1995), 73 Ohio St.3d 525; State ex rel. Bowling v. Natl. Can Corp.
(1996), 77 Ohio St.3d 148; State ex rel. Wood v. Indus. Comm. (1997), 78 Ohio St.3d
414; State ex rel. Wilson v. Indus. Comm. (1997), 80 Ohio St.3d 250; State ex rel.
Cunningham v. Indus. Comm. (2001), 91 Ohio St.3d 261.
       {¶ 59} In B.F. Goodrich, the court states:
              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.
No. 13AP-487                                                                       17


       {¶ 60} In Wilson, the court states:
                 We view permanent total disability compensation as
                 compensation of last resort, to be awarded only when all
                 reasonable avenues of accomplishing a return to sustained
                 remunerative employment have failed. Thus, it is not
                 unreasonable to expect a claimant to participate in return-to-
                 work efforts to the best of his or her abilities or to take the
                 initiative to improve reemployment potential. While
                 extenuating circumstances can excuse a claimant's
                 nonparticipation in reeducation or retraining efforts,
                 claimants should no longer assume that a participatory role,
                 or lack thereof, will go unscrutinized.

Id. at 253-54.
       {¶ 61} At issue here are two paragraphs of the commission's order of
December 11, 2012:
                 In reference to the Injured Worker's ability to complete job
                 retraining or rehabilitation, the Commission recognizes that
                 the Injured Worker was denied vocational rehabilitation
                 services by the Bureau of Workers' Compensation in 2011,
                 however, the Commission notes this denial specifically
                 mentioned that one of the major barriers to offering the
                 Injured Worker these vocational services was the fact the
                 Injured Worker had refused vocational rehabilitation on
                 three previous referrals. The Injured Worker's refusal of
                 vocational services three times demonstrates a lack of a good
                 faith effort to pursue vocational retraining when it was
                 available to her. Therefore, while the Commission does
                 accept the Bureau of Workers' Compensation's findings of
                 the Injured Worker being declared non-feasible in 2011 for
                 vocational rehabilitation, it is nevertheless the Commission's
                 responsibility to ultimately decide issues of the Injured
                 Worker's potential to be rehabilitated. State ex rel. Rodriguez
                 v. Indus Comm., 67 Ohio St.3d 210, 616 N.E.2d 929 (1993).

                 It is additionally noted that, pursuant to State ex rel. B.F.
                 Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525, 653
                 N.E.2d 525 (1995), an award of permanent total disability
                 compensation is to be reserved for the most severely disabled
                 workers and should be allowed only when there is no
                 possibility for reemployment. Therefore, the Injured
                 Worker's refusal of vocational rehabilitation services would
                 clearly be a factor weighing against awarding permanent
                 total disability.
No. 13AP-487                                                                            18



       {¶ 62} When the commission finds that relator's three refusals of vocational
rehabilitation services demonstrates a lack of a good-faith effort to pursue vocational
retraining when it was available, the commission implies that all three file closures in
the SHO's order of August 16, 2011 fail to provide extenuating circumstances that can
excuse relator's non-participation at the time of the offers. Those three file closures
occurred on May 7, 2009, May 27, 2010, and August 24, 2010, as identified specifically
in the SHO's order of August 16, 2011 that denied relator's C-9 application for vocational
services.
       {¶ 63} Analysis begins with the observation that the file closure of May 7, 2009
clearly and unambiguously provided extenuating circumstances that excused relator's
non-participation.   That is, relator was clearly justified in refusing the first of the
vocational services offers due to her pending surgery for the allowed conditions of the
industrial claim. Accordingly, the commission is incorrect when it states in its order
that relator demonstrated "three times" a lack of a good-faith effort to pursue vocational
retraining.
       {¶ 64} After relator's surgeries in July and November 2009, she was again
referred for vocational rehabilitation services on May 3, 2010. However, the second
referral ended as a file closure on May 27, 2010, as previously noted. As indicated in the
May 27, 2010 closure report, relator told the case manager on May 26, 2010 that "she is
not interested in vocational services at this time, noting that her therapy is coming to an
end and that she expects to return to work sometime in July." Unfortunately, the
May 27, 2010 closure report fails to give any information upon which it can be
determined whether relator actually had a realistic good-faith expectation that she
would be returning to work sometime in July. There was certainly no suggestion in the
May 27, 2010 closure report that relator did not have a good-faith expectation that she
would be returning to work in July 2010. Presumably, the return to work did not
materialize. However, we are not told any of the circumstances.
       {¶ 65} In any event, relator's so-called "lack of interest in vocational services"
may have been justified such that an expectation of a return to work may have provided
No. 13AP-487                                                                          19


extenuating circumstances that can excuse relator's non-participation. (May 27, 2010
closure report.)
       {¶ 66} Under the circumstances, the May 27, 2010 closure report provides no
evidence upon which the commission can rely to support its finding that relator
demonstrated on three occasions a lack of a good-faith effort to pursue vocational
retraining when it was available.
       {¶ 67} As earlier noted, on July 17, 2010, relator was referred for vocational
rehabilitation services for a third time. However, this referral also ended in a closure
report. The closure report was issued August 24, 2010.
       {¶ 68} Unlike the two prior closure reports, the August 24, 2010 closure report
provides evidence upon which the commission can rely to support a finding that there
were no extenuating circumstances upon which relator can be excused from non-
participation at the time of the offer in August 2010. Again, the August 24, 2010 closure
report states:
                 Ms. Gibbs' initial interview was held on 8/4/10 at a
                 restaurant near her home. At the time of the interview Ms.
                 Gibbs declined to sign the rehabilitation agreement and the
                 consent to release medical information form, stating that she
                 wanted to discuss these forms first with her legal counsel and
                 her physician before signing them. Ms. Gibbs telephoned this
                 case manager on 8/18/10 stating that she was going to have
                 her signed forms faxed over to this case manager. However,
                 the signed forms were not received, and when this case
                 manager telephoned Ms. Gibbs on 8/20/10, she stated that
                 she has decided that she does not want to participate in
                 vocational services at this time. * * * [I]t was decided that
                 Ms. Gibbs' vocational file would be closed as she is not
                 interested in vocational services.

       {¶ 69} Wanting to discuss the matter with legal counsel and her physician is not a
sufficient basis for extenuating circumstances that might excuse non-participation.
Between August 4 and August 20, 2010, relator had an opportunity to confer with her
lawyer and her physician. It was clearly within the commission's fact-finding discretion
to conclude that relator had not provided an extenuating circumstance justifying non-
participation.
No. 13AP-487                                                                           20


       {¶ 70} Based upon the foregoing analysis, the magistrate concludes that the
commission incorrectly stated that relator unjustifiably refused vocational rehabilitation
services on three occasions.    However, the August 24, 2010 closure report clearly
provided the commission with some evidence to support a finding that relator
unjustifiably refused an offer of vocational rehabilitation services in August 2010.
       {¶ 71} In the magistrate's view, the commission error in stating that unjustifiable
refusals occurred on three occasions is not fatal to a determination that "refusal of
vocational rehabilitation services would clearly be a factor weighing against awarding
permanent total disability," as the commission concluded in its order. That is, the
commission's determination regarding vocational rehabilitation services is supported by
some evidence, i.e., the August 24, 2010 closure report.
       {¶ 72} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.


                                          /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).
