[Cite as State ex rel. Humility of Mary Health Partners v. Indus. Comm., 2015-Ohio-4456.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio ex rel.                                  :
Humility of Mary Health Partners,
                                                       :
                 Relator,
                                                       :                  No. 14AP-965
v.
                                                       :           (REGULAR CALENDAR)
Industrial Commission of Ohio and
Dieldra L. Penny,                                      :

                 Respondents.                          :



                                         D E C I S I O N

                                    Rendered on October 27, 2015


                 Day Ketterer, Ltd., Jerry P. Cline, and Thomas R. Wyatt, for
                 relator.

                 Michael DeWine, Attorney General, and Natalie J. Tackett,
                 for respondent Industrial Commission of Ohio.

                 Nurenberg, Paris, Heller & McCarthy Co., L.P.A.,
                 Benjamin P. Wiborg, Ellen M. McCarthy, and Brenda M.
                 Johnson, for respondent Dieldra L. Penny.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
SADLER, J.
        {¶ 1} Relator, Humility of Mary Health Partners, brings this original action
seeking a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its October 5, 2012 order awarding permanent total disability
("PTD") compensation to respondent Dieldra L. Penny ("claimant").
No. 14AP-965                                                                              2


       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who rendered a decision and
recommendation that includes findings of fact and conclusions of law, which is appended
hereto. The magistrate concluded that the commission did not abuse its discretion in
awarding PTD compensation. Accordingly, the magistrate recommended that we deny the
requested writ of mandamus.
       {¶ 3} 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., 11 Ohio St.2d 141 (1967). 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., 26 Ohio St.3d 76 (1986).
       {¶ 4} Relator sets forth the following three objections to the magistrate's decision:
              [1.] The Magistrate erred when she concluded that Catalyst's
              offer of training and employment cannot constitute a
              vocational rehabilitation program.

              [2.] The Magistrate Failed to Cite to Any Authority to Support
              Her Conclusion that HMHP was Required to Seek the
              Approval of Respondent's treating Psychologist Before
              Referring Penny to Vocational Rehabilitation.

              [3.] The Magistrate erred by rejected [sic] HMHP's argument
              that Dr. Weinstein's April 15, 2014 report cannot constitute
              some evidence and ignored Penny's own deposition
              testimony.

       {¶ 5} Claimant's industrial claim is allowed for lumbosacral strain, L5-S1 disc
herniation, major depressive disorder, Cauda Equina Syndrome with neurogenic bladder,
neurogenic bowel, left foot drop, and anxiety disorder due to Cauda Equina Syndrome
with neurogenic bladder. Because of the allowed condition of Cauda Equina Syndrome
with neurogenic bladder, claimant must catheterize herself four to five times daily.
Because of the allowed condition of neurogenic bowel, claimant has frequent bowel
No. 14AP-965                                                                            3


accidents. Claimant's physical symptoms have resulted in the allowed psychological
conditions for which she has received counseling and drug therapy.
       {¶ 6} Following claimant's application for PTD compensation, relator, by and
through Catalyst RTW ("Catalyst"), offered claimant vocational training, after which she
was to be interviewed for a home-based employment position with a company known as
AllFacilities, Inc.
       {¶ 7} On April 15, 2014, claimant's treating psychologist, D. Weinstein, Ph.D.,
authored a report wherein he opined that claimant was incapable of engaging in sustained
remunerative employment of any kind and that she was permanently and totally disabled.
Thereafter, the commission referred claimant to a psychologist by the name of David L.
Chiarella, Ph.D., who examined claimant and issued a report on May 28, 2014. Therein,
Dr. Chiarella opined that claimant is permanently and totally disabled due to her allowed
psychological conditions.
       First Objection
       {¶ 8} In its first objection, relator contends that the magistrate erroneously
concluded that Catalyst's offer of training and employment did not qualify as a vocational
rehabilitation program. Our review of the magistrate's decision reveals that, although the
magistrate expressed criticism of the tactics employed by Catalyst in this case, the
magistrate did not conclude that relator's offer of training and employment could not also
be considered a vocational rehabilitation program. Moreover, the commission based its
award of PTD compensation solely on the allowed psychological conditions in the claim
and the reports of both Drs. Weinstein and Chiarella. The magistrate's decision provides,
in relevant part:
               In the present case, the commission awarded claimant PTD
               compensation based solely on her allowed psychological
               conditions. In so doing, the commission relied on two pieces
               of evidence: the February 15, 2014 report of Dr. Weinstein and
               the May 28, 2014 report of Dr. Chiarella. It is undisputed
               that, when the commission determines that a claimant is
               entitled to an award of PTD compensation based solely on the
               allowed conditions in the claim, the commission is not
               required to analyze the non-medical disability factors under
               [State ex rel.] Stephenson [v. Indus. Comm., 31 Ohio St.3d 167
               (1987)]. Further, the commission can determine, based on
No. 14AP-965                                                                                4


                 the evidence before it, that a claimant was not capable of
                 participating in vocational rehabilitation thereby obviating the
                 need for a claimant to have first sought out vocational
                 rehabilitation before applying for PTD compensation. The
                 commission can find that such action would be in vain. See
                 R.C. 4123.58(D)(4) and State ex rel. Galion Mfg. Div. Dresser
                 Industries, Inc. v. Haygood, 60 Ohio St.3d 38 (1991).
(Magistrate's Decision, ¶ 59.)
       {¶ 9} The reports issued by Drs. Weinstein and Chiarella provide some evidence
to support the commission's PTD award. State ex rel. Rouch v. Eagle Tool & Machine
Co., 26 Ohio St.3d 197, 198 (1986). This being the case, the issue of vocational training is
irrelevant to the PTD determination. State ex. rel. Galion Mfg. Div., Dresser Industries,
Inc. v. Haygood, 60 Ohio St.3d 38 (1991). See also State ex rel. Humility House v. Indus.
Comm., 10th Dist. No. 03AP-1, 2003-Ohio-5582, ¶ 6 ("An evaluation of the non-
medical/vocational factors is not necessary when the claimant is medically unable to
perform any sustained, remunerative employment.").                Accordingly, relator's first
objection is overruled.
       Second Objection
       {¶ 10} For similar reasons, we overrule relator's second objection. In its second
objection, relator claims that the magistrate failed to cite any legal authority for her
conclusion that relator was required to obtain approval of claimant's treating psychologist
before making an offer of employment. Given the fact that both Drs. Weinstein and
Chiarella opined that claimant's allowed psychological conditions support the
commission's PTD award, the question of vocational training is irrelevant to the PTD
determination.      Galion; Humility House.       Accordingly, relator's second objection is
overruled.
       Third Objection
       {¶ 11} In its third objection, relator claims that the magistrate erroneously rejected
its argument that Dr. Weinstein's April 15, 2014 report must be disregarded inasmuch as
claimant misrepresented the requirements of the position she was offered. First, we reject
relator's contention the Dr. Weinstein's opinion was limited to claimant's capability of
performing the duties of the job offered to her by Catalyst. Dr. Weinstein's April 15, 2014
report states:
No. 14AP-965                                                                             5


               Again, let me reiterate, I believe Ms. Penny is incapable of
               performing this or any other job, and I consider Ms. Penny to
               be permanently and totally disabled and not capable of any
               form of gainful competitive employment * * * due to her
               emotional status and the impairments of Major Depressive
               Disorder Single Episode Mild; Anxiety Disorder due to cauda
               equina syndrome with neurogenic bowel and bladder
               disorder.

(Emphasis added.) (Magistrate's Decision, ¶ 42.)
       {¶ 12} Given Dr. Weinstein's opinion, the question of whether claimant
misrepresented the duties required of her by the position offered by Catalyst is of no
consequence.     Moreover, even if we were to exclude Dr. Weinstein's report from
consideration, we agree with the magistrate's conclusion that "the report of Dr. Chiarella,
standing alone, supports the commission's order * * * and renders discussion of relator's
other argument immaterial." (Magistrate's Decision, ¶ 61.) Accordingly, relator's third
objection is overruled.
       {¶ 13} Following review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find that the magistrate has
determined the pertinent facts and properly applied the relevant law. Accordingly, we
overrule relator's objections and adopt the magistrate's decision as our own, including the
findings of fact and the relevant conclusions of law as identified herein. The requested
writ is of mandamus is denied.
                                                                    Objections overruled;
                                                               writ of mandamus denied.

                          BROWN, P.J., and BRUNNER, J., concur.
                               _________________
No. 14AP-965                                                                        6


                                    APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State of Ohio ex rel.                       :
Humility of Mary Health Partners,
                                            :
             Relator,
                                            :
v.                                                             No. 14AP-965
                                            :
Industrial Commission of Ohio                               (REGULAR CALENDAR)
and Dieldra L. Penny,                       :

             Respondents.                   :




                        MAGISTRATE'S DECISION

                                Rendered on June 24, 2015



             Day Ketterer, LTD., Jerry P. Cline and Thomas R. Wyatt,
             for relator.

             Michael DeWine, Attorney General, and Natalie J. Tackett,
             for respondent Industrial Commission of Ohio.

             Nurenberg, Paris, Heller & McCarthy Co., L.P.A., Benjamin
             P. Wiborg, Ellen M. McCarthy and Brenda M. Johnson, for
             respondent Dieldra L. Penny.


                                    IN MANDAMUS
      {¶ 14} Relator, Humility of Mary Health Partners, 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 granted permanent total
No. 14AP-965                                                                          7


disability ("PTD") compensation to respondent, Dieldra L. Penny ("claimant"), and
ordering the commission to find that she is not entitled to that compensation.
Findings of Fact:
      {¶ 15} 1. Claimant was employed as a lab assistant at a medical facility operated
by relator when she sustained a back injury on July 13, 2004 while attempting to catch a
falling lab specimen.    Claimant's workers' compensation claim is allowed for the
following conditions:
             Major depressive disorder; Cauda Equina Syndrome with
             neurogenic bladder; neurogenic bowel; left foot drop; anxiety
             disorder due to Cauda Equina Syndrome with neurogenic
             bladder.

      {¶ 16} 2. Claimant underwent microdiscectomy at L5-S1 in October 2006 and
June 2009. Following the second surgery, claimant developed numbness in her lower
extremities and, subsequently, developed incontinence, and was diagnosed with Cauda
Equina Syndrome and Neurogenic bladder and bowel.            As a result, claimant must
catheterize herself four to five times a day and has frequent bowel accidents. Further,
because of associated psychological problems, claimant's claim was also allowed for
major depressive disorder and anxiety disorder.
      {¶ 17} 3. Claimant received temporary total disability ("TTD") compensation
following her injury and has not worked since the date of her injury.
      {¶ 18} 4. On December 15, 2009, Matthew McDaniel, M.D., performed an
independent medical examination of claimant at relator's request to determine whether
or not she had reached maximum medical improvement ("MMI"). Dr. McDaniel listed
the allowed conditions in her claim, identified the medical records which he reviewed,
included claimant's statements in his physical findings upon examination, and
concluded that she required additional rehabilitation for gait training and
strengthening, and was not at MMI.
      {¶ 19} 5. Near this time, relator had claimant under surveillance. When the
surveillance tape was provided to Dr. McDaniel, he prepared an addendum dated
February 8, 2010. He concluded:
             The surveillance video does change my opinions. Ms. Penny's
             true clinical presentation is now called into question.
No. 14AP-965                                                                             8


              Ms. Penny has related to me on both independent
              examinations that she is in constant severe pain, severely
              limited in activities of daily living, unable to lift or bend,
              unable to walk without assistance, and limited in socializing
              outside the home. Obviously, the video presents a completely
              different picture.

              In the video, Ms. Penny displays entirely normal physical
              capacities. She walks, bends, lifts, and moves in a fluid,
              physiologic manner with no apparent difficulties, standing in
              direct contrast to her stated complaints and clinical
              presentation at the independent medical examinations. She
              is not using a cane. She is apparently active outside her
              home.

              Ms. Penny's physical abilities in the video do not correlate
              with her stated dependence on her husband, near home-
              bound status, need for a cane for ambulation, and need for a
              motorized cart.

              In summary, Ms. Penny's clinical presentation to me and her
              presentation in the video represent an obvious discrepancy.
              Therefore, relying on the normal physical capacities
              observed in the video, the allowed conditions would be at
              Maximum Medical Improvement.

       {¶ 20} 6. Based on Dr. McDaniel's addendum report, relator sought to have
claimant's TTD compensation terminated.
       {¶ 21} 7. Based upon Dr. McDaniel's February 8, 2010 addendum report,
claimant's TTD compensation was terminated effective April 12, 2010 and an
overpayment was declared.
       {¶ 22} 8. Claimant was later awarded a new period of TTD compensation
beginning in August 2011 based solely upon her allowed psychological conditions. The
commission specifically relied on reports by relator's evaluating psychologist R. Litwin,
as well as the report of claimant's treating physicians A. Nalluri, M.D., and D. Weinstein,
Ph.D. All three doctors noted that claimant had regular panic attacks, difficulty leaving
the house, that concerns over her incontinence cause significant embarrassment and
anxiety symptoms, and rendered her temporarily and totally disabled.
No. 14AP-965                                                                                              9


        {¶ 23} 9. Claimant began treating with Dr. Weinstein in January 2013.1
Claimant received TTD compensation for the allowed psychological conditions until it
was terminated on November 22, 2013 after a district hearing officer ("DHO") found
that her allowed psychological conditions had reached MMI.
        {¶ 24} 10. Shortly before her allowed psychological conditions were found to be
MMI, claimant filed her application for PTD compensation. At the time, claimant was
51 years of age and had begun receiving Social Security Retirement Benefits in the
amount of $972 in July 2009. Claimant indicated that she was a high school graduate
and had completed two years of college at Youngstown State University.
        {¶ 25} 11. Regarding her allowed physical conditions, relator submitted the
August 8, 2013 report of her treating physician John L. Dunne, D.O., who stated:
                Mrs. Penny has been a long-standing patient of mine and
                had developed a cauda equina syndrome, neurogenic bowel
                and bladder, and a left foot drop as a result of an L5-S1 disc
                herniation that was operated too late. Despite everyone's
                best efforts and the work of a number of university
                consultants in Pittsburgh, these conditions have not
                resolved. Mrs. Penny continues to experience bowel and
                bladder incontinence on a frequent weekly to daily basis. She
                continues to have foot drop. She continues with low back
                pain and left leg pain. She is significantly restricted from all
                activities of daily living such as heavy household cleaning,
                prolonged standing and lifting activities. She is able to drive.
                She will at times utilize a cane for support if her left leg is
                bothering her or is weaker more. But in my opinion, her
                limitations and impairment solely as a result of the injuries
                of this claim and sequelae have rendered her permanently
                and totally unable to participate in sustained remunerative
                employment on a permanent basis.

        {¶ 26} 12. Concerning her allowed psychological conditions, claimant submitted
the December 17, 2013 report of Dr. Weinstein:
                Ms. Penny has ongoing issues with incontinence and coping
                with her neurogenic bladder. She has been doing home self-
                catheterizations with the help of her spouse 4-5 times a day
                since 2009. She has continued complications with not being

1According to relator, claimant began treating for her psychological conditions with Dr. Weinstein after Dr.
Anil Nalluri plead guilty to defrauding the Ohio Bureau of Workers' Compensation ("BWC").
No. 14AP-965                                                                 10


           able to fully empty her bladder and having several urinary
           tract infections, resulting in emergency room visits due to
           pain. She continues to experience pain. * * * She has been
           experiencing increasing problems with sexual intimacy,
           soiling herself, and needing to bathe more often to optimize
           cleanliness. This has led to an increase in panic attacks,
           tension, and social embarrassment and withdrawal from
           others. Ms. Penny wears Depends and is on many different
           medications for pain, mood, and bladder control.

           ***

           Psychologically, Ms. Penny continues to experience 2-3 panic
           attacks per week with physical symptoms. She struggles with
           social isolation due to her medical conditions and the
           embarrassment associated with her medical conditions. "I
           was told to try to get out more … I did it for about a week but
           then reverted back to my home." She also described severe
           problems with nervousness, depression, trembling, feeling
           tense, and feeling panicky.

           ***

           Due to the failures of her surgeries and her physical
           conditions deteriorating, Ms. Penny began to feel depressed.
           She was referred to Anil Nal[l]uri, M.D., in March 2006, and
           she was diagnosed with Major Depressive Disorder due to
           feelings of depressed mood, sadness, anger, tearfulness, and
           worry about her health, future, and ability to car for herself.
           She treated with him for psychotherapy and psychiatric
           medication management.

           ***

           As a function of the clinical interview and the review of the
           entire psychological content of Ms. Penny's BWC file, this
           examiner finds the [Injured Worker] to be permanently and
           totally disabled and not capable of engaging in any form of
           competitive gainful employment. She has no emotional
           stamina or capacity to tolerate a work setting and the
           requirements of same. She is PTD as a consequence of the
           medical impairments of this industrial injury as allowed by
           the ICO/BWC.
No. 14AP-965                                                                         11


      {¶ 27} 13. Relator had claimant examined by Robert G. Kaplan, Ph.D. In his
January 15, 2014 report, Dr. Kaplan identified the medical records which he reviewed
and, after discussing them in significant detail, Dr. Kaplan concluded that: "Ms. Penny
is not a reliable reporter of her psychological symptoms and impairments." Dr. Kaplan
concluded, at most, claimant has a mild (Class II) impairment of 15 percent. Concluding
that she was not permanently and totally disabled, Dr. Kaplan stated:
             With reasonable psychological certainty, it can be stated
             that:

             [One] In addition to having bonafide psychological and
             physical symptoms, Ms. Dieldra L. Penny is exaggerating her
             physical limitations. Therefore, she is not considered a
             reliable reporter of her physical limitations or psychological
             symptoms and impairments.

             [Two] The allowed psychological conditions of an industrial
             injury that occurred on 7/13/04, over nine years ago, have
             remained at Maximum Medical Improvement and do not
             require additional treatment, although Ms. Dieldra L. Penny
             has clinically significant symptoms of anxiety and depression
             that are being caused by financial stressors and ongoing
             enmity for the employer of record, which do require
             treatment.

             [Three] Ms. Dieldra L. Penny is not Permanently and Totally
             Disabled by the allowed psychological conditions of the
             industrial injury that occurred on 7/13/04.

             [Four] Ms. Dieldra L. Penny currently has a fifteen percent
             (15%) permanent partial disability due to the allowed
             psychological conditions of an industrial injury that occurred
             on 7/13/04.

             [Five] Ms. Dieldra L. Penny has no psychological condition
             or impairment that would prevent her from returning to her
             former position of employment, engaging in some other form
             of sustained remunerative employment, or participating in a
             vocational rehabilitation program, and does not require any
             restrictions due to her allowed psychological conditions.

      {¶ 28} 14. Relator had claimant examined for the allowed physical conditions by
Paul C. Martin, M.D. In his December 5, 2013 report, Dr. Martin identified the allowed
No. 14AP-965                                                                          12


conditions in the claim, the history of the claim, and the medical records which he
reviewed. Dr. Martin provided his physical findings upon examination and ultimately
concluded: claimant continues to experience ongoing residual difficulties related to the
allowed physical conditions in her claim; those physical conditions had reached MMI;
continued treatment for the allowed physical conditions would consist of medications to
help manage her symptoms, the use of a cane and an AFO brace for ambulation, and
various other tools to complete her daily self-catheterization for urinary incontinence.
Dr. Martin concluded that claimant was physically capable of returning to work as
follows:
             It is my medical opinion Ms. Penny is physically capable of
             working in a modified work environment which would be
             considered sedentary in nature. This would consist of no
             lifting greater than 10 pounds, avoidance of activities
             requiring frequent bending, twisting or stooping, and
             avoidance of any activities requiring prolonged periods of
             walking or standing. She would also need to avoid activities
             requiring kneeling, squatting or climbing. Additional
             accommodations will be necessary to allow Ms. Penny the
             opportunity to self-catheterize herself 3-5 times per day. This
             particular activity may be problematic in the public setting
             due to Ms. Penny's need to perform this activity in a
             clean/safe environment in an attempt to minimize the
             potential for infections. Considering this particular
             accommodation, it may be prudent for Ms. Penny to be
             employed in a capacity where she could work from home,
             thereby facilitating/meeting all previously recommended
             work restrictions/accommodations.

      {¶ 29} 15. Finding that she was not permanently and totally disabled, Dr. Martin
assigned a 44% whole person impairment.          Despite the fact that he had opined
claimant's limitations solely as a result of the allowed physical conditions in her claim
rendered her unable to participate in sustained remunerative employment in his August
8, 2013 report, on February 3, 2014, Dr. Dunne referred claimant for a vocational
rehabilitation assessment and, on February 13, 2014, relator referred claimant to
Catalyst RTW ("Catalyst") for an evaluation.
      {¶ 30} 16. In a letter dated March 5, 2014, claimant was notified that she had
been referred to Catalyst and that she would be contacted soon.
No. 14AP-965                                                                        13


      {¶ 31} 17. Catalyst sent Dr. Dunne a job description for a home-based position
which would offer claimant a flexible work schedule and the ability to work from
whatever position was most comfortable for her to claimant's treating physician Dr.
Dunne.
      {¶ 32} 18. According to the job analysis form, the position would require the
following:
             JOB DESCRIPTION: At Home Customer Survey
             Associate: From the home employee is responsible for
             making outbound calls to businesses in an attempt to gather
             survey information. Employee will complete a survey sheet
             (either on a computer or manually) for each connected call
             and will track total number of calls on a daily time tracking
             sheet. Paperwork is to be returned to the employer on a
             weekly basis (or with greater frequency as dictated by the
             project). Employee is responsible for eh accurate completion
             of all paperwork. All Facilities, Inc. offers a flexible schedule
             to enable employees to take breaks as needed. Employees are
             encouraged to utilize this flexibility to develop a work
             schedule that maximizes their productivity and comfort with
             the understand that they remain responsible to complete
             their assigned hours each week.

             Employee is expected to adhere to a minimum standard of 16
             dials and 2 completed surveys per hour.

             MACHINES & TOOLS REQ'D: Cordless headset
             telephone, pens, and computer (when appropriate).

      {¶ 33} 19. On March 11, 2014, Dr. Dunne responded that, in his opinion,
claimant was physically capable of performing the position described for 20 to 30 hours
per week.
      {¶ 34} 20. In a letter dated March 18, 2014, Catalyst informed claimant's
attorney about the program, stating:
             Gil Kuhrt of WC Consulting, Inc. has retained CATALYST
             RTW to assist your client, Dieldra Penny with her return to
             work efforts. We are pleased to inform you that Ms. Penny
             will be participating in our Return to Work Program, which
             will enable her to work from home while receiving extensive
             on-the-job training for a position that provides genuine
             opportunity with an exciting career path.
No. 14AP-965                                                                               14


              Enclosed you will find a letter regarding an interview that we
              have scheduled for Ms. Penny for a home-based position as
              an At-Home Customer Survey Associate. We look forward to
              working with you and Ms. Penny on her successful reentry to
              the workforce. Please feel free to contact us if you have any
              questions.

       {¶ 35} 21. In a letter of that same date, claimant was notified that Catalyst had
"identified an employment opportunity for you, which falls within your physical
limitation as established by Dr. John Dunne D.O." and that he was required to complete
the enclosed application as well as participate in an upcoming interview with
AllFacilities, which has "openings and will extend an offer of employment to you upon
successful completion of the interview." (Emphasis sic.)
       {¶ 36} 22. The application indicated that the position was for an At-Home
Customer Survey Associate working 30 hours per week and that she would be paid $9
per hour. Claimant would be required to complete 16 dials per hour per work day and
her goal was to obtain two "A" leads per hour.
       {¶ 37} 23. Claimant received a follow-up letter from Catalyst dated March 31,
2014 congratulating her on her new position and informing her that training would take
place on Monday, April 7, 2014, at which time she would receive all the equipment
necessary to provide the duties of the job prior to her training.
       {¶ 38} 24. Apparently claimant had some difficulties with the equipment she
received and was provided new equipment.
       {¶ 39} 25. Thereafter, in a letter dated April 16, 2014, AllFacilities, Inc. indicated:
              The following letter is regarding your present employment at
              AllFacilities, as an At-Home Customer Survey Associate.
              You accepted this position on March 31, 2014 in the capacity
              of 30 hours a week.

              We have not heard from you since April 8th, when you
              claimed that your phone was not working. Since that time
              you were sent a new phone via Federal Express that was
              delivered on Friday, April 11, 2014. You have not set up this
              phone nor have you attempted to contact our office for
              assistance. AllFacilities has made several attempts to contact
              you on both your personal and work phone numbers. WE
              called you on April 14th, 15th and 16th leaving several
No. 14AP-965                                                                         15


             messages, when your personal phone was able to receive
             them, the voicemail box was full most of the time.
             Unfortunately, AllFacilities has not received a call back.

             The position with AllFacilities remains available to you.
             Please contact the office by Thursday, April 24, 2014 to
             move forward and reschedule your training. In absence of a
             valid medical or other excuse it must assume that you have
             abandoned your position.

(Emphasis sic.)

       {¶ 40} 26. In a follow-up letter to claimant's attorney dated April 25, 2014,
Catalyst assured claimant's attorney that certain concerns claimant had regarding
recording or monitoring devices being placed on her home telephone were unwarranted.
       {¶ 41} 27. After an April 8, 2014 exam, Dr. Dunne issued a report dated April 10,
2014, indicating that claimant was unable to perform the job which had been offered to
her:
             Gathering contemporary data on her activities of daily living
             limitations, the combination of the impairment from her
             medications interferes with activities of daily living due to
             the fecal and urinary incontinence and multiple showers
             necessary for self-care, I think that I have a better picture of
             her daily limitations, and at this point, I believe I can state,
             to a reasonable degree of medical certainty, that she cannot
             meet the job demands as described previously and I really
             don't think that she is able to participate in any type of
             remunerative employment activities because of the demands
             of her own personal care and the mild impairment due to her
             medications. I also think that she is profoundly depressed. In
             speaking with her today in comparison to how I first knew
             her, a very vibrant and outgoing personality as we moved
             through a definitive diagnosis and initial surgery with all of
             the expectations that should would [sic] recover. But
             ultimately, it was too late on the delayed diagnoses and the
             cauda equina syndrome and the lower extremity
             radiculopathy never improved, and this has had a very
             profound impact on her life and on her psychologically.

       {¶ 42} 28. In a letter dated April 15, 2014, Dr. Weinstein discussed his recent
exam of claimant and the At-Home Customer Survey position she had been offered. Dr.
Weinstein noted that claimant expressed fear and anxiety about being surveilled and
No. 14AP-965                                                                       16


specifically noted that her status had deteriorated greatly since he last saw her on
December 17, 2013. Dr. Weinstein noted:
             As a consequence of this "vocational training," she has had
             an increase in her anxiety levels, an increase in her
             incontinence and pain, and a residual depressive reaction to
             both. Ms. Penny has been placed in a program (it is not clear
             if there is any legitimate training or orientation) that allows
             for working at home but creates a number of fears and
             anxiety as a result of the nature of the work. Apparently, she
             is to be doing cold calls selling an unknown product. She is
             anxious about what the product is exactly and she is
             extremely anxious about comments her "trainer" has made
             about Ms. Penny's home phone being monitored (apparently
             Ms. Penny installs an attachment to her home phone so that
             the "trainer" can monitor her calls-raising fear in both Ms.
             Penny and her husband as to "what else can they monitor.")

             Ms. Penny presented with increased levels of anhedonia and
             depression. She cried throughout much of our meeting while
             she discussed the "vocational" program and as she described
             her increase in her physical symptoms.

             ***

             Ms. Penny continues to be an emotional mess and has no
             capacity (as noted in my December 2013 report), to function
             in a work setting either at home or outside of the home. Ms.
             Penny has been forced to confront these limitations by this
             "program" she has had laid on her, resulting in an increase in
             her symptoms per her report in our session last week.

             Again, let me reiterate, I believe Ms. Penny is incapable of
             performing this or any other job, and I consider Ms. Penny to
             be permanently and totally disabled and not capable of any
             form of gainful competitive employment. This is due to her
             emotional status and the impairments of Major Depressive
             Disorder Single Episode Mild; Anxiety Disorder due to cauda
             equina syndrome with neurogenic bowel and bladder
             disorder.

      {¶ 43} 29. Apparently, relator again had claimant under surveillance. The report
indicated that claimant was observed doing the following:
             The surveillance report of 12/4/13 indicates that Ms. Penny
             [w]as observed walking in a "fluid like manner utilizing a
No. 14AP-965                                                                         17


             cane in her right hand. The subject bent slightly at the knees;
             retrieved an object on the ground then stood back up
             straight; and walked out of view into the main entrance," of
             the my [sic] office building. On 12/13/13, she was observed
             backing a car into her garage. On 12/24/13, Ms. Penny was
             observed X-mas shopping at a Sam's Club, wearing a "Santa
             hat." It was noted that she "pushed the shopping cart in a
             quick fluid-like manner with no signs of distress; no signs of
             any braces or supports; and no assistance of a walking cane.
             The subject [Ms. Penny] bent slightly over into the shopping
             car; carried a purse in her left hand and the walking cane in
             her right hand; walked around the passenger side of the
             vehicle and out of view. Mr. Penny was observed loading
             grocery items into the vehicle; and the subject [Ms. Penny]
             was observed again pulling the shopping car; then out of
             view." She was also observed to be "bent slightly over the
             shopping car to retrieve a known item," and "was observed
             walking in heeled boots or shoes."

      {¶ 44} 30. In a report dated March 14, 2014, Dr. Kaplan opined that Dr.
Weinstein's report was not based on any scientific system of impairment rating, but that
it was his subjective clinical judgment and that, in his opinion, claimant was not
permanently and totally disabled.
      {¶ 45} 31. The commission asked Richard J. Reichert, M.D., to examine claimant
concerning her allowed physical conditions. In his May 20, 2014 report, Dr. Reichert
identified the allowed conditions in claimant's claim as well as the medical records and
surveillance video he was provided, concluded claimant had reached MMI for her
allowed physical conditions, assigned a 55 percent whole person impairment, and
concluded that claimant could perform sedentary work but would require frequent
breaks to attend to her personal hygiene matters.
      {¶ 46} 32. Regarding her allowed psychological conditions, the commission had
claimant examined by David L. Chiarella, Ph.D.        In his May 28, 2014 report, Dr.
Chiarella identified the allowed conditions in claimant's claim, identified the medical
records which he reviewed, as well as his observations. He administered the MMPI-2RF
and BDI-II tests, and, based on testing results as well as his interview, Dr. Chiarella
noted the following:
No. 14AP-965                                                                     18


             Activities of Daily Living: * * * The injured worker has
             sustained a Class-3 moderate impairment in her activities of
             daily living related to her allowed psychological conditions.

             Social Functioning: The injured worker reported a lack of
             desire to interact with others on a regular basis. She does
             attend church two time a week. * * * Her primary social
             contacts are with her husband, children and persons at
             church. * * * Reportedly, the injured worker leaves her home
             for medical and physician appointments, various errands,
             church and on occasions, grocery shopping. The injured
             worker has sustained a Class-3 moderate impairment in her
             social activities related to the allowed psychological
             conditions.

             Concentration, Persistence and Pace: The injured
             worker reported difficulty concentrating and attending. * * *
             She was able to attend and concentrate to complete the
             MMPI-2RF. The injured worker has sustained a Class-2 mild
             impairment in her ability to attend, concentrate and persist
             in goal directed activity.

             Adaptation: The injured worker continues to report and
             the psychological test data indicate, that she continues to
             experience clinically significant depressed and anxious
             symptoms. The injured worker is reporting significant
             feelings of anxiety, nervousness, agitation and feelings of
             panic. She also reported pervasive feelings of sadness,
             anhedonia, loss of interest in activities and other s as well as
             feelings of pessimism, discouragement and hopelessness.
             The injured worker is demonstrating a low tolerance for
             stress and frustration She has sustained a Class-3 moderate
             impairment in her ability to adapt to stressful life
             circumstances related to the allowed psychological
             conditions.

      {¶ 47} Ultimately, Dr. Chiarella assessed a 35 percent whole person impairment
and opined that claimant was permanently and totally disabled, stating:
             The injured worker [is] incapable, due to the allowed
             psychological conditions of a Major Depressive Disorder and
             Anxiety Disorder Due to Cauda Equina Syndrome with
             Neurogenic Bladder to sustain remunerative employment;
             she is considered permanently and totally impaired. The
             severity, nature and extent of her anxiety as well as
             depression would interfere with her ability to attend on a
No. 14AP-965                                                                          19


             regular basis, even on a limited basis. The injured worker's
             stress tolerance would interfere with her ability to attend,
             concentrate and persist in goal directed activity on a regular
             basis, even with repetitive activities. The injured worker
             would experience difficulty interacting with others in the
             workplace including co-workers' and supervisors.

      {¶ 48} 34. Claimant's application for PTD compensation was heard before a staff
hearing officer ("SHO") on September 15, 2014. Based upon the April 15, 2014 report of
Dr. Weinstein and the May 28, 2014 report of Dr. Chiarella, the SHO concluded that
claimant was permanently and totally disabled solely as a result of the allowed
psychological conditions in her claim. At the hearing, relator argued that claimant was
not eligible for PTD compensation because she had not engaged in either educational
rehabilitative efforts to enhance her employability or following through on the return to
work program offered her. Relator argued that claimant had not exhausted all efforts to
return to some sustained remunerative employment and PTD compensation should be
denied. The SHO specifically rejected relator's argument citing testimony from the
hearing and stating:
             The Staff Hearing Officer finds that this [sic] argument to be
             flawed for several reasons. First, neither the Employer nor its
             agent (Catalyst RTW) contacted the Injured Worker's
             treating psychologist, Dr. D. Weinstein, Ph.D., to determine
             if the Injured Worker could perform the type of activities
             required in the light duty job offer rom a psychological
             standpoint. This is evidenced by the testimony of Renee
             Wallace of Catalyst RTW at hearing. * * *

             The above testimony clearly indicates that Ms. Wallace, of
             Catalyst RTW, contacted only the Injured Worker's treating
             physician for the allowed physical conditions in this claim,
             Dr. J. Dunne, D.O., when arranging for the Injured Worker
             to perform light duty work. The Injured Worker's treating
             psychologist, Dr. D. Weinstein, Ph.D., was not contacted
             with concern to this Injured Worker's psychological ability to
             return to light duty work. Dr. Weinstein never had the
             opportunity to review and/or approve the light duty job
             offered to the Injured Worker by Ms. Wallace through
             Catalyst RTW. Thus, the Staff Hearing Officer concludes that
             the offer of light duty work failed to adequately address the
No. 14AP-965                                                                  20


             limitations pressed by the allowed psychiatric conditions of
             this claim.

             The Staff Hearing Officer also concludes that had Ms.
             Wallace contacted Dr. Weinstein, she would have discovered
             in all likelihood that he would not have approved any light
             duty work for this Injured Worker. In fact, as early as
             04/15/2014, Dr. Weinstein generated a report indicating that
             the Injured Worker did not possess the retained functional
             capacity to do any work. Given that the light duty job was
             made available on 4/07/2014 without any input from the
             treating psychologist (Dr. Weinstein) as to whether the
             Injured Worker could perform this activity, the Staff Hearing
             Officer rejects the Employer's argument that this offer was
             good faith offer of light duty work. To accept this Employer's
             argument that this Injured Worker's [sic] is ineligible for
             permanent total disability benefits on the basis of an
             insufficient attempt at educational or rehabilitative efforts
             would be manifestly unfair under these circumstances.

             The Employer's argument challenging PTD eligibility on this
             basis fails for a second reason as well. Notably, Ohio Revised
             Code Section 4123.58 (D)(4) provides that permanent total
             disability shall not be compensated if the "Employee has not
             engaged in educational rehabilitative efforts to enhance the
             employee's employability, unless such efforts are
             determined to be in vain."(Emphasis added.) In the
             claim at hand, the Staff Hearing Officer finds that this
             Injured Worker's participation in educational or
             rehabilitative efforts would have been in vain as her treating
             psychologist concluded that the Injured Worker did not have
             the retained psychological capacity to perform any type of
             work as of April 2014[,] the same month in which the light
             duty position was made available to this Injured Worker.
             Thus, this Injured Worker's failure to comport with the
             Employer's request to perform light duty work becomes
             irrelevant in the adjudication of this Injured Worker's
             permanent total disability benefit eligibility.

             For all of the foregoing reasons, the Injured Worker's
             Application for Permanent Total Disability Benefits, filed
             10/30/2013, is granted to the extent of this order.

(Emphasis sic.)
No. 14AP-965                                                                            21


      {¶ 49} 35. Relator's request for reconsideration was denied and, thereafter,
relator filed the instant mandamus action in this court.
Conclusions of Law:
      {¶ 50} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
      {¶ 51} 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., 11 Ohio St.2d 141 (1967). 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., 26 Ohio St.3d 76 (1986). 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., 29 Ohio St.3d 56 (1987). 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., 68 Ohio St.2d 165 (1981).
      {¶ 52} The relevant inquiry in a determination of permanent total disability is
claimant's ability to do any sustained remunerative employment.             State ex rel.
Domjancic v. Indus. Comm., 69 Ohio St.3d 693 (1994). 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 non-medical factors.
State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's
medical capacity to work is not dispositive if the claimant's non-medical factors
foreclose employability. State ex rel. Gay v. Mihm, 68 Ohio St.3d 315 (1994). 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., 57 Ohio
St.3d 203 (1991).
      {¶ 53} Relator raises the following arguments: (1) it was an abuse of discretion
for the SHO to find that relator was required to seek approval from claimant's treating
psychologist before beginning a vocational rehabilitation program, and (2) claimant's
No. 14AP-965                                                                           22


material misrepresentations to Dr. Weinstein about her abilities rendered his report
unreliable.
      {¶ 54} As indicated in the findings of fact, Dr. Dunne, who had been treating
claimant for her allowed physical conditions, referred her for a vocational rehabilitation
assessment in February 2014. Thereafter, relator referred claimant to Catalyst who sent
Dr. Dunne a copy of the job analysis form describing the at home position being made
available to claimant and asking if he believed she was capable of performing those
duties. Dr. Dunne responded that, in his opinion, she was capable.
      {¶ 55} Despite the fact that claimant's claim was allowed for significant
psychological conditions and relator knew the physician with whom claimant was
treating, neither relator or Catalyst contacted Dr. Weinstein to ask him whether or not
claimant was capable of performing the job responsibilities being offered her.
      {¶ 56} In arguing that the commission abused its discretion, relator argues that
the commission treated the vocational rehabilitation program as a job offer and
analyzed the situation from the context of the necessity for approval from an injured
worker's physician of record before making an offer of light duty or other suitable
employment to an injured worker and the termination of TTD compensation. Relator
asserts it was not required to seek Dr. Weinstein's approval and, even if Dr. Weinstein
would have disapproved, his disapproval would have been based on claimant's
misrepresentations to him, the same misrepresentations which should, in relator's
opinion, remove Dr. Weinstein's report from evidentiary consideration.
      {¶ 57} Relator asserts that because this was rehabilitation and not an offer of
employment, there was no requirement to first seek approval from claimant's treating
physicians. However, the magistrate notes that it was the doctor treating claimant for
her allowed physical conditions who referred her to vocational rehabilitation and he did
not consult with nor did he consider the allowed psychological conditions in her claim.
How could relator simply ignore the fact that claimant had significant psychological
conditions and had restrictions based on those allowed psychological conditions?
      {¶ 58} Although relator vehemently maintains that this was a rehabilitation
program and not an offer of employment, every letter from Catalyst indicates that this
was indeed an offer of employment being made to claimant. As above noted, claimant
No. 14AP-965                                                                           23


was interviewed and notified that she had a new position with AllFacilities and would
begin her training on Monday, April 7, 2014. AllFacilities sent claimant paperwork
indicating that her rate of pay would be $9 per hour. By all accounts, it does appear that
an offer of employment was made to claimant and relator's argument that approval from
her treating physician is not necessary before she began vocational rehabilitation is
rather disingenuous. Relator knew claimant had significant psychological conditions
and, in making this job offer, should have contacted Dr. Weinstein.
      {¶ 59} In the present case, the commission awarded claimant PTD compensation
based solely on her allowed psychological conditions. In so doing, the commission
relied on two pieces of evidence: the February 15, 2014 report of Dr. Weinstein and the
May 28, 2014 report of Dr. Chiarella. It is undisputed that, when the commission
determines that a claimant is entitled to an award of PTD compensation based solely on
the allowed conditions in the claim, the commission is not required to analyze the non-
medical disability factors under Stephenson. Further, the commission can determine,
based on the evidence before it, that a claimant was not capable of participating in
vocational rehabilitation thereby obviating the need for a claimant to have first sought
out vocational rehabilitation before applying for PTD compensation. The commission
can find that such action would be in vain. See R.C. 4123.58(D)(4) and State ex rel.
Galion Mfg. Div. Dresser Industries, Inc. v. Haygood, 60 Ohio St.3d 38 (1991).
      {¶ 60} Relator does not offer any challenges to the May 28, 2014 report of Dr.
Chiarella to whom the commission referred claimant for an examination and evaluation
of her allowed psychological conditions. As noted in the findings of fact, Dr. Chiarella
administered various testing, interviewed claimant, and reviewed medical reports
submitted to him.    Thereafter, Dr. Chiarella opined that claimant was incapable of
working, stating:
             The injured worker [is] incapable, due to the allowed
             psychological conditions of a Major Depressive Disorder and
             Anxiety Disorder Due to Cauda Equina Syndrome with
             Neurogenic Bladder to sustain remunerative employment;
             she is considered permanently and totally impaired. The
             severity, nature and extent of her anxiety as well as
             depression would interfere with her ability to attend on a
             regular basis, even on a limited basis. The injured worker's
No. 14AP-965                                                                           24


             stress tolerance would interfere with her ability to attend,
             concentrate and persist in goal directed activity on a regular
             basis, even with repetitive activities. The injured worker
             would experience difficulty interacting with others in the
             workplace including co-workers' and supervisors.

      {¶ 61} Even if this court finds the report of Dr. Weinstein does not constitute
some evidence upon which the commission could rely to award claimant PTD
compensation, the report of Dr. Chiarella, standing alone, supports the commission's
order thereby negating relator's argument that this court must issue a writ of
mandamus, and renders discussion of relator's other argument immaterial.
      {¶ 62} Despite the fact that this magistrate concludes that there is an
independent basis upon which this court can and should find that the commission did
not abuse its discretion in awarding claimant PTD compensation, the magistrate will
address relator's second argument.
      {¶ 63} First, the magistrate notes that relator's second argument is based in part
on relator's theory that, since claimant was, at one time, found to have been
exaggerating her symptoms and TTD compensation was accordingly terminated, she has
continued exaggerating her symptoms to Dr. Weinstein and, as such, his report cannot
constitute some evidence upon which the commission could rely.           In making this
argument, relator argues that the following surveillance demonstrates that claimant was
again exaggerating her symptoms. On December 24, 2013, claimant was observed as a
passenger in the front seat of an automobile being driven by her husband and claimant
was seen wearing a red Santa hat. Claimant was also observed pushing a shopping cart
in what the investigator described as a fluid-like manner with no signs of distress and no
assistance from her walking cane. On a different day, claimant was again observed
walking in a fluid-like manner, but utilizing a cane. Apparently, she bent slightly at the
knees and retrieved an object from the ground.
      {¶ 64} The magistrate fails to see how the above activities demonstrate that
claimant was again exaggerating her symptoms thereby warranting the removal of Dr.
Weinstein's report from evidentiary consideration. Further, as stated previously, even if
this report is removed from evidentiary consideration, the commission's order is
supported by some evidence and is not contrary to law.
No. 14AP-965                                                                          25


      {¶ 65} Second, when the commission determines that vocational rehabilitation
would be in vain, a claimant is excused from pursuing such avenues prior to be awarded
PTD compensation. Here, the commission specifically found that claimant's attempts at
rehabilitation would have been in vain and, as such, relator's argument fails.
      {¶ 66} Based on the forgoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion in awarding claimant
permanent and total disability compensation and this court should deny relator's
request for a writ of mandamus.
                                             /S/ MAGISTRATE
                                             STEPHANIE BISCA


                             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).
