[Cite as State ex rel. Sheller-Chiles v. Indus. Comm., 2014-Ohio-313.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



[State ex rel.] Corinne Sheller-Chiles,                 :

                 Relator,                               :
                                                                            No. 13AP-245
v.                                                      :
                                                                         (REGULAR CALENDAR)
Industrial Commission of Ohio                           :
and Ravenna Aluminum, Inc.,
                                                        :
                 Respondents.
                                                        :




                                          D E C I S I O N

                                     Rendered on January 30, 2014


                 Urban Co., L.P.A., and Anthony P. Christine, for relator.

                 Michael DeWine, Attorney General, and Brian J. Becker, for
                 respondent Industrial Commission of Ohio.

                                    IN MANDAMUS
                      ON OBJECTION TO THE MAGISTRATE'S DECISION

BROWN, J.
        {¶ 1} Relator, Corinne Sheller-Chiles ("claimant"), 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 that denied permanent total
disability ("PTD") compensation and to enter an order granting said compensation.
        {¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, and recommended
No. 13AP-245                                                                              2


that this court grant claimant's request for a writ of mandamus. The commission has filed
an objection to the magistrate's decision.
       {¶ 3} In its sole objection, the commission argues that the magistrate erred when
he concluded that Dr. David Chiarella's reports do not support the commission's finding
that claimant has the ability to perform part-time work that constitutes sustained
remunerative employment. The commission asserts that the magistrate has created a new
rule that an expert who opines that a claimant can perform part-time work must indicate
specifically how many hours an injured worker is capable of working. The commission
argues that it is sufficient that the psychological expert opined that claimant was capable
of light part-time employment.
       {¶ 4} The commission refutes the magistrate's reliance upon State ex rel. Cale v.
Indus. Comm., 10th Dist. No. 01AP-1143, 2002-Ohio-2924, for the proposition that Dr.
Chiarella was required to opine the number of hours per week of part-time work he
believed claimant could work due to her psychological conditions. The commission
attempts to distinguish Cale by pointing out that the expert in Cale did not state that the
claimant was capable of sustained remunerative employment on a part-time basis.
Instead, the commission asserts, the issue in Cale was whether the commission could
conclude that the claimant was medically capable of sustained remunerative employment
on a part-time basis based upon the expert's restrictions that the claimant could sit for up
to three hours and stand or walk for up to three hours.
       {¶ 5} We concur with the magistrate's decision. As in Cale, Dr. Chiarella did not
state here that claimant was capable of sustained remunerative employment on a part-
time basis. However, unlike the doctor in Cale, Dr. Chiarella did not indicate any specific
restrictions; for example, definite time restrictions on standing, sitting or walking.
Instead, Dr. Chiarella indicated only that claimant was "capable of work with various
limitations and modifications[,]" "capable of limited and part-time employment
activities[,]" and "would require breaks from the work activity on a frequent basis." These
descriptions are not necessarily equivalent to claimant being capable of "sustained"
remunerative employment. Dr. Chiarella's report did not provide any detailed figures or
descriptions from which the commission or this court could extrapolate how many hours
claimant could work. Thus, there is nothing in Dr. Chiarella's statements provided in his
No. 13AP-245                                                                            3


report that gives the court any confidence that he was concluding claimant could work
four or more hours per day, which prior case law from this court establishes is the
standard for determining whether part-time work capacity constitutes "sustained"
remunerative employment. See, e.g., State ex rel. Franklin Cty. Bd. of Commrs. v. Indus.
Comm., 10th Dist. No. 09AP-379, 2010-Ohio-2728, ¶ 62; State ex rel. DaimlerChrysler
Corp. v. Indus. Comm., 10th Dist. No. 06AP-387, 2007-Ohio-1498, ¶ 38, State ex rel.
Moyer v. Sharonville Fire Dept., 10th Dist. No. 04AP-92, 2005-Ohio-587, ¶ 12; State ex
rel. Clevite Elastomers v. Torok, 10th Dist. No. 02AP-116, 2002-Ohio-4770, ¶ 19; State ex
rel. DeSalvo v. May Co., 10th Dist. No. 98AP-986 (June 29, 1999) (memorandum
decision); Cale. Furthermore, we note that the Supreme Court of Ohio affirmed this
court's decision in DeSalvo regarding the four-hour threshold in State ex rel. DeSalvo v.
May Co., 88 Ohio St.3d 231 (2000). See DaimlerChrysler Corp. at ¶ 31 (pointing out that
the Supreme Court affirmed this court's decision in DeSalvo). For these reasons, we find
Dr. Chiarella's report could not constitute some evidence to support the commission's
determination that claimant could participate in part-time sustained remunerative
employment, and we overrule the commission's objection.
      {¶ 6} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of the commission's objection, we
overrule the objection and adopt the magistrate's findings of fact and conclusions of law.
Claimant's writ of mandamus is granted.
                                        Objection overruled; writ of mandamus granted.

                             TYACK and KLATT, JJ, concur.

                               __________________
[Cite as State ex rel. Sheller-Chiles v. Indus. Comm., 2014-Ohio-313.]

                                              APPENDIX

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


[State ex rel.] Corinne Sheller-Chiles,                 :

                 Relator,                               :
                                                                            No. 13AP-245
v.                                                      :
                                                                         (REGULAR CALENDAR)
Industrial Commission of Ohio                           :
and Ravenna Aluminum, Inc.,
                                                        :
                 Respondents.
                                                        :




                               MAGISTRATE'S DECISION

                                     Rendered on October 30, 2013


                 Urban Co., L.P.A., and Anthony P. Christine, for relator.

                 Michael DeWine, Attorney General, and Brian J. Becker, for
                 respondent Industrial Commission of Ohio.


                                             IN MANDAMUS

        {¶ 7} In this original action, relator, Corinne Sheller-Chiles, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order denying her permanent total disability ("PTD") compensation, and to enter an
order awarding the compensation.




Findings of Fact:
No. 13AP-245                                                                           5


       {¶ 8} 1. On April 19, 1996, relator injured her shoulders while employed as an
inspector for respondent Ravenna Aluminum, Inc., a state-fund employer.
       {¶ 9} 2. The industrial claim is allowed for:
               Sprain rotator cuff, right; tear right rotator cuff;
               impingement syndrome, right; deltoid detachment, right;
               aggravation of acromioclavicular joint degenerative joint
               disease; adjustment disorder with anxiety depressed mood;
               and chronic pain disorder; left rotator cuff tear.

       {¶ 10} 3. On August 3, 2012, attending physician Hyo H. Kim, M.D., marked the
"Yes" box on form 1102 provided by the Ohio Bureau of Workers' Compensation
("bureau"). Dr. Kim responded to the query: "Has injury resulted in permanent total
disability?" He then wrote: "Unable to use arms for any sustained or remunerative
activities."
       {¶ 11} 4. On August 6, 2012, relator filed an application for PTD compensation. In
support, relator submitted the August 3, 2012 report of Dr. Kim.
       {¶ 12} 5. On September 25, 2012, relator was examined at the commission's
request by John L. Dunne, D.O. In his four-page narrative report, Dr. Dunne wrote:
               Discussion: In my opinion, the above allowed conditions
               have reached maximum medical improvement. Based on my
               review of the medical records, the history taken today, and
               the above objective findings per physical examination, it is
               my opinion that Ms. Corinne Sheller is capable of work
               activity at a light duty level. Specific limitations would be no
               work of a repetitive nature at chest height or above and no
               work of highly repetitive use of anything more than 4 or 5
               pounds. An assessment of permanent partial impairment per
               the AMA Guides to the Evaluation of Permanent
               Impairment, Fifth Edition, finds a range of motion
               impairment of the right shoulder joint per Figures 16-40, 16-
               43, and 16-46 is a 14% impairment of the upper extremity
               which is combined with the strength deficit per Table 16-35
               of 25% involving flexion, abduction, and internal rotation of
               9% impairment of the upper extremity totaling a 22%
               impairment of the right upper extremity.

               The range of motion loss of the left shoulder is a 7% with
               normal strength for a 7% impairment of the upper extremity.
               Table 16-3 assigns a 22% impairment of the upper extremity
               to be a 13% impairment of the whole person and a 7%
No. 13AP-245                                                                             6


             impairment of the upper extremity to be a 4% impairment of
             the whole person. Combining the 13% and 4% yields a final
             whole person impairment of 16% for sprain rotator cuff,
             right; tear right rotator cuff; impingement syndrome, right;
             deltoid detachment, right; aggravation of acromioclavicular
             joint degenerative joint disease; left rotator cuff tear.

      {¶ 13} 6. On a Physical Strength Rating form, Dr. Dunne indicated by his mark
that relator is capable of "light work." In the space provided under the preprinted query
"[f]urther limitations, if indicated," Dr. Dunne wrote: "No work of repetitive nature chest
height or above."
      {¶ 14} 7. On October 11, 2012, at the commission's request, relator was examined
by psychologist David L. Chiarella, Ph.D. In his six-page narrative report, Dr. Chiarella
opined:
             The injured worker has sustained an 18% whole person
             impairment arising from the allowed psychological
             conditions.

             The injured worker is capable of work with various
             limitations and modifications. The injured worker is capable
             of limited and part-time employment activities[.] The injured
             worker would require breaks from the work activity on a
             frequent basis. The injured worker would require simple
             tasks rather than complex or multi-step tasks because of her
             diminished attention and concentration skills. The injured
             worker would benefit from work activity that is relatively
             isolated because of the injured worker's mood disturbance,
             particularly her irritability and low tolerance for frustration;
             limited contact with co-workers would increase her ability to
             be successful.

(Emphasis sic.)

      {¶ 15} 8. On October 31, 2012, Dr. Chiarella completed a form captioned
"Occupational Activity Assessment[,] Mental & Behavioral Examination." On the form,
Dr. Chiarella indicated by his mark: "This Injured Worker is capable of work with the
limitation(s) / modification(s) noted below." In the space provided, Dr. Chiarella wrote:
"(See Report)."
No. 13AP-245                                                                           7


      {¶ 16} 9. The PTD application form asks for information regarding education. The
forms asks the applicant: "What is the highest grade of school you completed?" In
response, relator wrote: "11 1/2 GED."
      {¶ 17} 10. Under the "Education" section of the application form, three queries are
posed: (1) "Can you read?" (2) "Can you write?" and (3) "Can you do basic math?" Given
a choice of "yes," "no," and "not well," relator selected the "yes" response to all three
queries.
      {¶ 18} 11. The application form also asks the applicant to provide information
regarding work history. In response, relator identified eight jobs that she has held from
1986 to 1996.
      {¶ 19} 12. Following a January 29, 2013 hearing, a staff hearing officer ("SHO")
issued an order denying the PTD application. The SHO's order explains:
                This order is based upon the medical reports of Dr. J.L.
                Dunne, D.O., and Dr. David Chiarella, Ph.D.

                Dr. John Dunne, D.O., who examined the Injured Worker on
                behalf of the Industrial Commission strictly regarding the
                Injured Worker's orthopedic conditions, indicated that the
                Injured Worker's condition has reached maximum medical
                improvement and that the Injured Worker cannot return to
                her former position of employment, but is capable of
                performing light work activities which means exerting up to
                twenty pounds of force occasionally and/or up to ten pounds
                of force constantly to move objects. He sums his opinion by
                indicating that the Injured Worker has a 16% permanent
                partial impairment with respect to the whole person as it
                relates to the Injured Worker's sole industrial injury from an
                orthopedic standpoint.

                Dr. David Chiarella, Ph.D. who examined the Injured Worker
                on behalf of the Industrial Commission strictly regarding the
                Injured Worker's psychiatric conditions only indicated that
                the Injured Worker's psychiatric conditions have also
                reached maximum medical improvement and that she
                cannot return to h[er] former position of employment, but
                would be able to return to some sustained remunerative
                employment in a part time work environment and work
                activity that would be relatively isolated. He further indicates
                that the Injured Worker has an 18% permanent partial
                impairment with respect to the whole person as it relates to
No. 13AP-245                                                                 8


           the Injured Worker's psychiatric conditions for which the
           Injured Worker's sole industrial injury is currently
           recognized.

           Therefore, based upon the opinions of Dr. John Dunne and
           Dr. David Chiarella who combined examined the Injured
           Worker on all of the allowed conditions for which the Injured
           Worker's sole industrial injury is recognized, Staff Hearing
           Officer concludes on a whole that the Injured Worker is
           medically capable [of] performing some sustained
           remunerative employment, i.e. light work in a part time
           isolated work environment. Therefore, the Staff Hearing
           Officer finds that a discussion of the Injured Worker's non-
           medical disability factors are now in order.

           The Injured Worker is 60 years of age and has an 11th grade
           education but did obtain her GED. The Injured Worker
           indicates on her IC-2 Application as well as testimony at
           hearing, the ability to read, write, and do basic math well.
           The Injured Worker's work history consists of working early
           on in her working career as a maintenance worker for two
           nursing homes for approximately two years performing
           maintenance work and cashier for a gas station for
           approximately six months but primarily worked the bulk and
           later portion of her working career as a wire mill worker/
           inspector for three different employers for approximately
           three years performing such duties as making wires, splicing
           wires and loading and unloading machines of coil.

           Mr. John Ruth performed a vocational evaluation on the
           Injured Worker on behalf of the Injured Worker. Upon
           reviewing the Injured Worker's work history, age, and
           education, he found no work experience which would
           transfer to light work in a part time isolated work
           environment. However, upon reviewing the Injured Worker's
           work history, age, and education, Staff Hearing Officer is not
           persuaded nor concurs with Mr. Ruth's opinion and finds
           that the Injured Worker's non-medical disability factors on a
           whole do not have a negative impact on the Injured Worker's
           ability to work or be retrained, but rather are to be viewed as
           somewhat positive factors from a vocational viewpoint.

           As indicated before, the Injured Worker is 60 years of age.
           Said age is an age that is definitely a barrier to re-
           employment, and concludes that the Injured Worker's age is
           an unfavorable factor in her re-employment potential.
No. 13AP-245                                                                 9


           Staff Hearing Officer finds that the Injured Worker's
           education is a positive factor. The Injured Worker's high
           school equivalent education noting that she received her
           GED and the fact that she has no difficulty in reading,
           writing or doing basic math is evidence of the Injured
           Worker's ability to learn new skills conductive to at least
           sedentary or light work in an entry level position.

           Finally, the Staff Hearing Officer finds that the Injured
           Worker's work history and work experience would be a
           neutral factor which neither favors nor disfavors re-
           employability. The Injured Worker's experience has been
           various unskilled to semi-skilled occupations as a
           housekeeper, cashier and factory worker in a wire harness
           facility. The Staff Hearing Officer finds that the Injured
           Worker's work history has not necessarily provided the
           Injured Worker with immediate transferable skills to a light
           and sedentary work environment but the Injured Worker's
           work history would not necessarily preclude her ability to
           access other unskilled or semi-skilled work in the economy
           on a sedentary or light basis noting that she has a high school
           equivalent education, ability to read, write and do basic math
           well and noting prior work experience in various settings in a
           factory workshop setting could provide some experience to
           perform an occupation in a sedentary or light work
           environment.

           In summary, Staff Hearing Officer concludes that the Injured
           Worker's non-medical disability factors on a whole favor re-
           employability that the Injured Worker's positive education
           factors outweighs the negative age factor and neutral work
           history factor, and finds that the Injured Worker can at least
           be retrained to perform some other occupation in a light
           duty capacity based upon her high school education and
           limited physical restrictions.

           Therefore, based upon the limited physical restrictions
           indicated by Dr. Dunne and Dr. Chiarella who indicate that
           the Injured Worker can perform on a whole light work in a
           part time isolated work environment coupled with the
           Injured Worker's high school equivalent education finds on a
           whole that the Injured Worker is not permanently and totally
           disabled and not precluded from all sustained remunerative
           employment.
No. 13AP-245                                                                           10


       {¶ 20} 13. On March 25, 2013, relator, Corinne Sheller-Chiles, filed this
mandamus action.
Conclusions of Law:
       {¶ 21} It is the magistrate's decision that this court issue a writ of mandamus, as
more fully explained below.
       {¶ 22} In its order, the commission, through its SHO, relied upon the reports of
Drs. Dunne and Chiarella in determining residual functional capacity.           See Ohio
Adm.Code 4121-3-34(B)(4).
       {¶ 23} In his reports, Dr. Dunne opines that the allowed physical conditions of the
claim permit light work.
       {¶ 24} In his reports, Dr. Chiarella opines that relator "is capable of limited and
part-time employment activities." However, Dr. Chiarella does not specify the number of
hours per week of part-time employment that relator is capable of working.
       {¶ 25} In its order, the commission concluded that relator "is medically capable
[of] performing some sustained remunerative employment, i.e. light work in a part time
isolated work environment." Then the commission considered the non-medical factors.
       {¶ 26} Based upon the case law described below, there is no evidence in the reports
of Dr. Chiarella supporting the commission's finding that relator has the ability to
perform part-time work that is sustained remunerative employment.
       {¶ 27} In State ex rel. Toth v. Indus. Comm., 80 Ohio St.3d 360, 362 (1997), the
Supreme Court of Ohio held that "part-time work constitutes sustained remunerative
employment." However, the Toth court did not hold that any part-time work—no matter
how few the hours per week the job might entail—is considered sustained remunerative
employment.
       {¶ 28} On a case-by-case basis, guidance from this court has developed over time
as to what part-time employment may be viewed as sustained remunerative employment.
       {¶ 29} Some five years after Toth, a magistrate of this court had occasion to
succinctly summarize this court's response to Toth in State ex rel. Cale v. Indus. Comm.,
10th Dist. No. 01AP-1143, 2002-Ohio-2924. In Cale, this court, speaking through its
magistrate, stated:
No. 13AP-245                                                                   11


              Although the Supreme Court has not defined the term "part-
              time work" in Toth, the courts have provided guidance in
              unreported opinions. In State ex rel. DeSalvo v. May Co.
              (June 29, 1999), Franklin App. No. 98AP-986, unreported
              (Memorandum Decision), affirmed (2000), 88 Ohio St.3d
              231, 724 N.E.2d 1147, the court in essence concluded that,
              where a claimant is capable of working more than four hours
              per day by combining his abilities to sit, stand and walk, the
              commission may find the worker capable of sustained
              remunerative employment.

              On the other hand, functional abilities may be so limited that
              only brief periods of work activities would be possible, which
              would not constitute sustained remunerative employment.
              See State ex rel. Libecap v. Indus Comm. (Sept. 5, 1996),
              Franklin App. 96AP-29, affirmed (1998), 83 Ohio St.3d 178,
              699 N.E.2d 63. In Libecap, the commission found the
              claimant medically capable of sustained remunerative
              employment at the sedentary level, relying on a medical
              opinion stating inter alia that claimant could sit for no more
              than thirty minutes at a time. In mandamus, the court of
              appeals found that the commission abused its discretion in
              determining that claimant had the medical capacity to
              perform sedentary work because sedentary work requires
              sitting most of the time, whereas the commission relied on a
              medical report finding claimant incapable of sitting more
              than thirty minutes at one time. Therefore, regardless of the
              fact that the physician placed claimant generally in the
              "sedentary" category, the specific limitations imposed were
              so restrictive as to preclude sustained remunerative
              employment.

              From decisions such as Toth, DeSalvo, and Libecap, the
              magistrate extracts general guidelines. It appears that the
              commission may find a claimant medically unable to
              perform sustained remunerative work where there are no
              jobs reasonably likely to accommodate his combination of
              medical restrictions, and/or where the claimant can work
              less than four hours per day. However, where the capacities
              to sit, stand and walk can be combined to provide, for
              example, a workday of five or six hours, the claimant may be
              found to be medically capable of sustained remunerative
              employment.

Id. at ¶ 25-27.
No. 13AP-245                                                                                12


       {¶ 30} Here, Dr. Chiarella failed to opine the number of hours per week of part-
time work that he believes relator can work with her psychological conditions, and the
commission relied upon Dr. Chiarella's reports as support for its determination that
relator is medically able to perform unspecified part-time work.
       {¶ 31} Clearly, the commission failed to rely upon any evidence that would support
a determination that the part-time work relator is capable of performing is sufficient to
conclude that sustained remunerative employment can be performed. See State ex rel.
DaimlerChrysler Corp. v. Indus. Comm., 10th Dist. No. 06AP-387, 2007-Ohio-1498 (the
commission did not abuse its discretion in awarding PTD compensation to a claimant
who could only work two hours per day).
       {¶ 32} Based upon the above analysis, the commission's determination that relator
is not permanently and totally disabled is fatally flawed.
       {¶ 33} Upon the issuance of a writ, the commission is free to obtain an addendum
report from Dr. Chiarella that addresses with specificity the hours per week of part-time
work that relator is capable of performing.
       {¶ 34} Accordingly, for all the above reasons, it is the magistrate's decision that this
court issue a writ of mandamus ordering the commission to vacate its order denying
relator's PTD application and, in a manner consistent with this magistrate's decision,
enter a new order that adjudicates the PTD application.


                                           /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).
