[Cite as State ex rel. Honda of Am. Mfg., Inc. v. Indus. Comm. of Ohio, 2019-Ohio-1006.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State ex rel. Honda of America Mfg., Inc.,             :

                 Relator,                              :
                                                                            No. 18AP-4
v.                                                     :
                                                                   (REGULAR CALENDAR)
Industrial Commission of Ohio et al.,                  :

                 Respondents.                          :



                                         D E C I S I O N

                                     Rendered on March 21, 2019


                 On brief: Vorys, Sater, Seymour and Pease LLP, and
                 Robert A. Minor, for relator.

                 On brief: Michael DeWine, Attorney General, and Crystal R.
                 Richie, for respondent Industrial Commission of Ohio.

                 On brief: Stanley R. Jurus Law Office, and Michael J.
                 Muldoon, for respondent Debra Phipps.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
SADLER, J.
        {¶ 1} Relator, Honda of America Manufacturing, Inc., commenced this original
action requesting a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate the August 14, 2017 order awarding permanent total disability
("PTD") compensation to respondent Debra Phipps ("claimant") and to enter an order
denying the compensation.
        {¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R.
53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
No. 18AP-4                                                                                 2


appended decision, including findings of fact and conclusions of law, and recommended
this court deny claimant's request for a writ of mandamus.
       {¶ 3} In this case, claimant sustained numerous work-related injuries to various
parts of her body over the course of her employment with relator. As a result, claimant has
five industrial claims. Claimant also suffers from several non-allowed medical conditions,
some of which affect the same body parts involved in her industrial claims. The magistrate
determined that, contrary to relator's assertions, the commission awarded PTD
compensation based solely on claimant's allowed conditions and did not abuse its
discretion by omitting consideration of the Stephenson non-medical disability factors.
       {¶ 4} Relator has filed objections to the magistrate's decision.         In relator's
objections, relator contends the commission erroneously relied on the medical opinion of
Ronald J. Bloomfield, M.D., in granting PTD for two reasons: 1) Dr. Bloomfield considered
non-allowed conditions in reaching his opinion; and 2) pursuant to the decision of the
Supreme Court of Ohio in State ex rel. Bonnlander v. Hamon, 150 Ohio St.3d 567, 2017-
Ohio-4003, Dr. Bloomfield's finding that claimant "can perform activities for a couple of
hours at most" is incompatible with his conclusion that claimant is not capable of sustained
remunerative employment. (Appx. at ¶ 20.) Relator further contends that because Dr.
Bloomfield's report fails to support the conclusion that claimant is medically incapable of
engaging in sustained remunerative employment due to the allowed impairment, the
commission was required to consider the relevant non-medical disability factors before
granting PTD, including claimant's failure to participate in re-education or retraining.
       {¶ 5} Relator acknowledges the magistrate considered and rejected each of the
above-cited arguments in recommending we deny the requested writ of mandamus.
Relator's objections to the magistrate's decision merely summarize and reiterate the
arguments made in its brief to the magistrate. Our review of the magistrate's decision
convinces us the magistrate did not err in rejecting relator's arguments.
       {¶ 6} More particularly, we agree with the magistrate that Dr. Bloomfield's opinion
provides some evidence on which the commission may rely in support of the Staff Hearing
Officer's determination that claimant is medically incapable of sustained remunerative
employment due solely to the allowed conditions in her industrial claims. Though Dr.
Bloomfield mentioned claimant's non-allowed condition in his report, his opinion on PTD
No. 18AP-4                                                                                     3


was based solely on the allowed conditions in her claim. We also note, contrary to relator's
assertion, the magistrate correctly applied the rule of law expressed in Bonnlander to the
specific facts of this case. We also agree with the magistrate that, in light of Dr. Bloomfield's
opinion that claimant is incapable of sustained remunerative employment due to her
allowed impairment, the commission was not required to consider non-medical disability
factors before granting PTD, including claimant's lack of participation in re-education and
retraining. State ex rel. R & L Carriers Shared Servs., L.L.C. v. Indus. Comm., 151 Ohio
St.3d 568, 2017-Ohio-5833, ¶ 18-19. See also Ohio Adm.Code 4123-3-34(D)(2)(a).
       {¶ 7} Following an independent review of the magistrate's decision and the
objections filed by relator, we find the magistrate has determined the pertinent facts and
properly applied the relevant law. Accordingly, we adopt the magistrate's decision as our
own, including the findings of fact and conclusions of law contained therein. For the
reasons set forth in the magistrate's decision and those expressed herein, relator's
objections are overruled, and we deny the requested writ of mandamus.
                                                          Objections overruled; writ denied.
                           BROWN and BRUNNER, JJ., concur.
                                      _____________
No. 18AP-4                                                                               4


                                   A P P E N D I X
                           IN THE COURT OF APPEALS OF OHIO

                               TENTH APPELLATE DISTRICT

The State ex rel.                            :
Honda of America Mfg., Inc.,
                                             :
                Relator,
                                             :
v.                                                                No. 18AP-4
                                             :
Industrial Commission of Ohio et al.,                        (REGULAR CALENDAR)
                                             :
                Respondents.
                                             :


                           MAGISTRATE'S DECISION

                                 Rendered on July 30, 2018


                Vorys, Sater, Seymour and Pease LLP, and Robert A. Minor,
                for relator.

                Michael DeWine, Attorney General, and Crystal R. Richie, for
                respondent Industrial Commission of Ohio.

                Stanley R. Jurus Law Office, and Michael J. Muldoon, for
                respondent Debra Phipps.


                                     IN MANDAMUS

       {¶ 8} In this original action, relator, Honda of America Mfg., Inc., requests a writ
of mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate the August 14, 2017 order of its staff hearing officer ("SHO") that awards permanent
total disability ("PTD") compensation to respondent Debra Phipps ("claimant"), and to
enter an order denying the compensation.
Findings of Fact
       {¶ 9} 1. Claimant has five industrial claims arising in the course of her employment
with relator.
No. 18AP-4                                                                                  5


       {¶ 10} 2. Her first claim (No. 95-359544) arose from an injury on April 10, 1995.
The claim is allowed for: "Left lateral epicondylitis; bursitis left shoulder; borderline left
carpal tunnel syndrome."
       {¶ 11} 3. Her second claim (No. 97-626787) arose from an injury on August 1, 1997.
The claim is allowed for:
               Left shoulder strain; left rotator cuff tendonitis; partial tear
               left rotator cuff; C-7 left radiculopathy; partial supraspinatus
               tear left shoulder; distal clavicle osteoarthritis.

       {¶ 12} 4. Her third claim (No. 99-623969) arose from an injury on October 1, 1999.
The claim is allowed for: "Left hip strain; left knee strain; left S1 radiculopathy."
       {¶ 13} 5. Her fourth claim (No. 99-624209) arose from an injury on October 19,
1999. The claim is allowed for: "Right shoulder strain, right shoulder supraspinatus cuff
tear; recurrent right rotator cuff tear; right hip bursitis."
       {¶ 14} 6. Her fifth claim (No. 01-870520) arose from an injury on August 17, 2001.
The claim is allowed for:
               Right carpal tunnel syndrome; right radial tunnel syndrome;
               chronic right C-6 radiculopathy; right elbow lateral
               epicondylitis.

       {¶ 15} 7. On October 3, 2015, chiropractor, David M. Grunstein, D.C., wrote to
claimant's counsel. In his eight-page report, Dr. Grunstein concludes:
               OPINION: Based on the consultation and examination
               findings above stated and how these findings correlate with
               the A.M.A. Guides, it is my opinion that the above named
               presented in this office with a total whole person impairment
               of 70 percent whole person impairment, on the above
               stated date, for the above stated conditions. Also note that
               when considering the above stated information and attached
               functional capacities evaluation, I am of the opinion that
               these injuries have resulted in this person being
               permanently and totally disabled from partaking in
               any type of sustained gainful remunerative
               employment and is therefore permanently and
               totally disabled.

(Emphasis sic.)
       {¶ 16} 8. On February 7, 2017, claimant filed an application for PTD compensation.
In support, claimant submitted the October 3, 2015 report of Dr. Grunstein.
No. 18AP-4                                                                                6


       {¶ 17} 9. The PTD application prompted relator to have claimant examined by
orthopaedic surgeon Oscar F. Sterle, M.D. Following an April 10, 2017 examination, Dr.
Sterle prepared a 35-page report dated April 14, 2017. At pages 32 through 35 of his report,
Dr. Sterle opines:
              I examined Ms. Phipps in the Dublin, Ohio, office for the
              allowed conditions of left lateral epicondylitis; bursitis left
              shoulder; borderline left carpal tunnel syndrome; left
              shoulder strain; left rotator cuff tendonitis; partial tear left
              rotator cuff; C-7 left radiculopathy; partial supraspinatus tear
              left shoulder; distal clavicle osteoarthritis; strain left knee;
              strain left hip; left S1 radiculopathy; strain right shoulder; tear
              supraspinatus cuff right shoulder; right rotator cuff tear; right
              hip bursitis; right carpal tunnel syndrome; right radial tunnel
              syndrome; chronic right C6 radiculopathy; and right elbow
              lateral epicondylitis.

              [One] Does the claimant retain the capacity to engage
              in sustained, remunerative employment considering
              the impairments resulting from the allowed
              conditions in Claim Nos. 95-359544, 97-626787, 99-
              623969, 99-624209 and/or 01-870520?

              Based on review of the available medical records, the reported
              mechanisms of injuries for each claim outlined above,
              considering the allowed claim conditions for each claim (95-
              359544, 97-626787, 99-623969, 99-624209 and/or 01-
              870520), I find that Ms. Phipps is capable of engaging in
              sustained remunerative employment.

              The allowed conditions from claim number 95-359544 are
              soft tissue conditions, which have long since resolved. The
              claim allowance includes left lateral epicondylitis which Ms.
              Phipps has no complaints nor objective findings supporting
              the continuation of this allowed condition.

              Left shoulder bursitis was treated within the other claims,
              with ultimately the claimant undergoing a reverse total
              shoulder arthroplasty (performed outside the workers'
              compensation system).

              Ms. Phipps has functional range of motion in the left shoulder
              following her left shoulder arthroplasty.
No. 18AP-4                                                                       7


             Ms. Phipps underwent a carpal tunnel release on the left wrist,
             without residuals as outlined on the electrodiagnostic study
             completed on June 11, 2010.

             The allowed condition in claim number 97-626787 have
             resolved with the claimant ultimately undergoing a reverse
             total shoulder arthroplasty, outside the workers'
             compensation system. The left shoulder allowed conditions
             included left shoulder strain, left rotator cuff tendonitis,
             partial tear left rotator cuff, partial supraspinatus tendon tear
             left shoulder and distal clavicle osteoarthritis. These
             conditions can be considered resolved.

             The allowed condition of C7 left radiculopathy is not
             supported by objective clinical findings. Ms. Phipps has age
             related pre-existing multilevel cervical degenerative disc and
             spinal disease as noted on the MRI of the cervical spine dating
             from February 21, 2003. These findings were further denoted
             on the repeat Cervical MRI study dating from November 17,
             2003.

             In claim number 99-623969, the conditions of strain left
             knee and strain left hip are soft tissue and self-limiting
             conditions which have long since resolved. The objective
             findings and subjective complaints relate to underlying
             degenerative conditions and not the resolved soft tissue
             diagnoses.

             The allowed left S1 radiculopathy is an electrodiagnostic
             finding without objective findings for correlation. Ms. Phipps
             has moderate lumbar multilevel degenerative disc and facet
             joint disease. The left S1 radiculopathy was not supported by
             objective findings on examination, as found in the medical
             records and on my Independent Medical Examination.

             Claim number 99-624209, involves the right shoulder for
             which Ms. Phipps ultimately underwent a reverse total
             shoulder arthroplasty, through the workers' compensation
             system, without complication and has expected results. She
             has functional range of motion in the right shoulder.

             Right hip bursitis, according to the claimant is symptomatic;
             however, this condition would not preclude the claimant for
             sustained remunerative activities. On examination, the
             claimant reported tenderness to the trochanteric bursal area
             bilateral on light palpation.
No. 18AP-4                                                                       8


             The allowed conditions for claim number 01-870520 have
             resolved with no objective or diagnostic findings associated
             with right carpal tunnel syndrome, right radial tunnel
             syndrome and right elbow lateral epicondylitis.

             The additional allowance of C6 radiculopathy is without
             clinical correlation and as of June 2010 was no long[er]
             reported on electrodiagnostic study.

             Ms. Phipps has age related pre-existing multilevel cervical
             degenerative disc and spinal disease as noted on the MRI of
             the cervical spine dating from February 21, 2003. These
             findings were further denoted on the repeat Cervical MRI
             study dating from November 17, 2003.

             [Two] Irrespective of her capacity to engage in
             sustained remunerative employment, is the claimant
             able to engage in physical and/or vocational
             rehabilitation efforts to be retrained to return to
             some form of sustained remunerative employment?

             Ms. Phipps is capable to engage in sustained remunerative
             employment, and should be capable of engaging in physical
             and/or vocational rehabilitation in an effort to be ret[r]ained
             to return to some form of sustained remunerative
             employment.

             However, the claimant has been retired for a few years.

             [Three] Are there other physical conditions that
             interfere with, or prohibit, Ms. Phipps engaging in
             sustained, remunerative employment? If so, do the
             injuries sustained at Honda contribute in any
             meaningful way to her inability to work?

             Ms. Phipps has multiple soft tissue complaints without
             corresponding objective findings as well as underlying
             multiple joint osteoarthritis, affecting her neck, back, hips and
             knees. This multiple joint osteoarthritis is unrelated to the
             allowed claims conditions and is a driving force in the current
             multiple area disabilities and perceived inability to work.

             The allowed conditions of this claim, do not affect the
             claimant's ability to work.

             [Four] If the claimant is able to engage in some form
             of sustained remunerative employment, what
No. 18AP-4                                                                           9


             physical restrictions/limitations, if any, do the
             allowed physical conditions in her claims presently
             cause? Please also complete the enclosed Physical
             Strength Rating form.

             Ms. Phipps would require physical restrictions for any
             overhead activities with both shoulder[s] and would benefit
             from a limitation on lifting over twenty-five pounds.

             In addition, there is a component of deconditioning from her
             current sedentary lifestyle and perceived accumulative
             ailments from working for "28 years in that place."

             The only residuals affecting the claimant from the multiple
             workplace claims affect the shoulders, for which arthroplasty
             surgery was performed.

             The above analysis derives from the history provided by the
             examinee, the findings on my examination, and the
             information contained in the medical records. * * *

             ***

             This evaluation was based on standards by the American
             Medical Association in their Guides to the Evaluation of
             Permanent Impairment, Fifth Edition.

(Emphasis sic.)
      {¶ 18} 10. On May 16, 2017, at the commission's request, claimant was examined by
Ronald J. Bloomfield, M.D., who specializes in internal medicine and occupational
medicine. In his nine-page narrative report, Dr. Bloomfield states:
             CLAIM ALLOWANCE(S):

             01-870520- Right carpal tunnel syndrome, right radial tunnel
             syndrome, chronic right C-6 radiculopathy, right elbow lateral
             epicondylitis.

             95-359544- Left lateral epicondylitis, bursitis left shoulder,
             borderline left carpal tunnel syndrome.

             97-626787- Left shoulder strain, left rotator cuff tendonitis,
             partial tear left rotator cuff, C-7 left radiculopathy, partial
             supraspinatus tear left shoulder, distal clavicle osteoarthritis.
No. 18AP-4                                                                       10


             99-623969- Left hip strain, left knee strain, left S1
             radiculopathy.

             99-624209- Right shoulder strain, right shoulder
             supraspinatus cuff tear, recurrent right rotator cuff tear, right
             hip bursitis.

             ***

             OCCUPATIONAL HISOTRY: Debra K. Phipps worked at
             Honda Manufacturing of America in assembly for 28 years,
             and she left work in June 2012. All five of her industrial claims
             were working at Honda Manufacturing. She always worked
             assembly line, although different positions over these years.
             She never had any sedentary jobs but worked on different
             assembly lines and assembling different parts of cars.

             HISTORY OF THE PRESENT CONDITION: As noted,
             all of her jobs were working at Honda of America in assembly
             lines doing repetitive work. Her 1995 injury caused bursitis to
             the left shoulder with left lateral epicondylitis and left carpal
             tunnel syndrome. She did not undergo any surgeries.

             Her next injury was in 1997 when she injured her left shoulder
             and also was allowed C7 left radiculopathy. She underwent
             three left shoulder surgeries and eventual[ly] open rotator
             cuff repair.

             She was injured twice in 1999, first on October 1st, when she
             injured her left hip, left knee, and was also allowed a left S1
             radiculopathy. She did not undergo any surgeries. However,
             on October 19, 1999, just 18 days later, she injured her right
             shoulder and right hip and underwent three right shoulder
             surgeries including right reverse total shoulder arthroplasty.
             These three surgeries did not occur until after she left the
             workplace.

             Her last industrial injury was in 2001 when she injured her
             right upper extremity and also aggravated her chronic right
             C6 radiculopathy. She did undergo right carpal tunnel release
             surgery.

             She is scheduled for right hip replacement surgery and has
             already undergone left total hip replacement. She says the left
             total hip replacement was not covered by BWC, and she is
             doubtful that the right total hip replacement will be covered
No. 18AP-4                                                                       11


             by BWC, although she hopes so. She has been allowed right
             hip bursitis.

             All in all, under these five different claims, she has undergone
             multiple surgeries, which include right carpal tunnel, right
             total shoulder replacement, three left shoulder surgeries. She
             says that she has also undergone left shoulder replacement
             surgery, although it is not listed in the forms sent to me. She
             also claims to have undergone left carpal tunnel surgery,
             although that is not apparently due to a BWC work injury.

             She has had multiple cortisone injections in both shoulders,
             both elbows, both wrists, but none in the spine. She has
             participated in physical therapy, takes over-the-counter pain
             medications, and says that she is limited much more by
             weakness and inability to use the upper extremities and
             ambulate well than she is by pain. Except for the right hip total
             replacement, she does not expect to undergo anymore
             surgeries.

             CURRENT SYMPTOMS: She has some pain, but it is not
             significant and uses over-the-counter analgesics. She has tried
             prescription opioids. She did not like the feeling. She says that
             she had significant reaction to OxyContin and refuses to take
             opioids.

             She says that she is unable to do very much with her wrist. She
             says that she gets a significant fatigue. For example, last
             Christmas, they were sending out Christmas cards. She would
             be able to complete five cards writing on them, putting them
             in envelopes, sealing the envelopes and addressing the
             envelopes before she would have to take a break of anywhere
             up to 20 or 30 minutes, but she could start doing more
             Christmas cards.

             She is able to prepare food and cook and do laundry, but says
             she has significant difficulty reaching over her head or
             carrying anything including a gallon of milk. She occasionally
             drives a car, although she relies on her husband to do all the
             carrying of the groceries into the house, putting things away.

             In conclusion, pain is not a significant limiting factor, and she
             does not have pain at all times. She take ibuprofen and Tylenol
             as needed for pain relief and finds good relief. However, she
             says that her shoulders and her wrists, her hips wear out very
             quickly and cause significant fatigue. She has weakness in all
             six of these joints and then has to sit down.
No. 18AP-4                                                                       12


             IMPACT ON ACTIVITIES: Occasionally she uses a cane in
             the right hand when her right hip is bothering her. She is able
             to do all of her household duties, although she goes slowly and
             she cannot carry the laundry, but she is able to bend over and
             do the laundry. She does prepare meals, drives herself to
             appointments and short distances and walks her dog.

             She needs not [sic] assistance with any activity of daily living.
             She reads a lot, watches television and goes camping.
             Camping involves her and her husband going in the 32-foot
             RV. They sleep in the RV. She does not like to fish and they
             just get out and sit next to the RV and appreciate being in the
             country. They do not do hunting either.

             She has a dog. She frequently walks the dog and she is able to
             bend over and pick up after the dog.

             PAST MEDICAL HISTORY: In addition to her five
             industrial injuries, she is treated for hypertension,
             hypercholesterolemia, asthma, and hiatal hernia.

             ***

             In addition to her musculoskeletal surgeries in these five
             claims, she has undergone a cholecystectomy, T & A, total
             abdominal hysterectomy, appendectomy, and has had
             multiple surgeries on both knees.

             ***

             REVIEW OF MEDICAL RECORDS: I reviewed all of the
             medical records provided to me by the Industrial
             Commission.

             PHYSICAL EXAMINATION: The history portion of the
             examination was obtained with her husband, Rodney Phipps,
             present at all times. Ms. Phipps did not know how to operate
             the handicap elevator and walked up the stairs to our second
             floor office and was visibly exhausted on her arrival. I assisted
             her with use of elevator after the examination process was
             completed.

             Mr. Phipps was not present during the physical examination.
             My office assistant, Ms. Somia Ahmed, was present at all
             times during the physical examination.
No. 18AP-4                                                                              13


             Height: 60 inches. Weight: 136 pounds. She has an antalgic
             gait, favors the right hip, and moves slowly. I used the
             ACUMAR dual digital inclinometer during parts of the exam.

             She is a well-developed, well-nourished woman. She has a
             slightly antalgic gait. She does occasionally use a right cane,
             she tells me, but it is not with her today. She had significant
             difficulty, she told me, climbing up the stairs, which caused
             pain, and she took the elevator down.
             ***

             She has well-healed surgical scars over both shoulders. In
             regards to the wrists, she has well-healed surgical scars, but
             they are faint from her previous carpal tunnel surgery. There
             is no tenderness when palpating in the carpal tunnel region
             on either wrist. In regards to the right wrist, extension is 50
             degrees, flexion 50 degrees, ulnar and radial deviation 20
             degrees. Similar findings were noted on the left. The left grasp
             was weaker than the right. In the supine position, there was
             significant tenderness with internal and external rotation of
             the right hip. There was also tenderness but not as much with
             internal and external rotation of the left hip. In the standing
             position, she was able to forward flex to 60 degrees, extension
             30 degrees, right and lateral movements were unremarkable
             as well. She has brisk 3+ reflexes at both knees and 2+ at both
             Achilles' tendons. There were no neurological deficits noted in
             the lower extremities. There was no clubbing, cyanosis or
             edema with positive pedal pulses. The knees have long vertical
             surgical scars anteriorly right and left. She is able to extend
             both knees to zero degrees, flexion to 120 degrees.

      {¶ 19} 11. Beginning at the bottom of page six and continuing through page eight,
Dr. Bloomfield lists the 20 allowed conditions of the five industrial claims, and he rates
each allowed condition for the percentage of whole person impairment using the AMA
Guides, Fifth Edition. Using the combined values chart, Dr. Bloomfield opines that
claimant has a combined whole person impairment of 40 percent.
      {¶ 20} On the last page of his narrative report, Dr. Bloomfield responds to a request
to "provide a discussion setting forth physical limitations arising from the allowed
conditions." In response, Dr. Bloomfield wrote:
             Ms. Phipps is incapable of work due to the cumulative effect
             of injury to both wrists, both elbows, both shoulders, both
             hips, left knee and cervical spine. For example, the simple task
             of sending out Christmas cards was difficult because of the
No. 18AP-4                                                                           14


               impairments in both upper extremities. She is physically
               unable to raise either upper extremity above the horizon and
               this would make it difficult for her to perform work activity
               and in addition to this she has bilateral carpal tunnel
               syndrome and bilateral epicondylitis which complicates and
               impairs her ability to perform repetitive work with her hands
               and/or use her upper extremities below the horizon. There is
               an accumulative effect on an individual when they have injury
               to all the major joints of both upper extremities.

               Her ability to write and/or type is significantly impaired due
               to disease in both shoulders, both elbows and both wrists.
               While she can perform activities for a couple of hours at most
               she is not capable of performing activities with her upper
               extremities on a sustained basis. * * *

               Pushing and pulling is markedly impaired due to her bilateral
               shoulder disease. An artificial joint may be marked
               improvement over a diseased joint, it is in no way as capable
               as the "original" uninjured joint.

               She explained to me that she just wears out in a couple of
               hours of house work or walking her dog and this is expected
               due to injury to so many joints and the effects of multiple
               surgeries. While she has the stamina to perform all of her own
               activities of daily living she does not have the musculoskeletal
               ability to perform activities on a sustained basis; her joints
               simply are not that strong as evidenced by the limitations and
               pain noted on physical examination and results of her
               multiple surgeries.

      {¶ 21} 12. The commission provides a form captioned "Physical Strength Rating."
The form asks the examining physician to mark one of three pre-printed statements:
               Based solely on impairment due to the allowed condition(s) in
               the claim within my specialty, and with no consideration of
               the injured worker's age, education, or work training.

      {¶ 22} In response, Dr. Bloomfield placed his mark to indicate his agreement with
the pre-printed statement: "This Injured Worker is incapable of work."
      {¶ 23} 13. Following an August 14, 2017 hearing, an SHO issued an order awarding
PTD compensation beginning May 16, 2017, which is the date of Dr. Bloomfield's
examination.
No. 18AP-4                                                                              15


      {¶ 24} After listing the 20 allowed conditions of the five industrial claims, the SHO
explained:
             The cost of this award is apportioned as follows: 50% in claim
             #99-624209, 25% in claim #97-626787, 10% in claim #01-
             870520, 10% in claim #99-623969 and 5% in claim #95-
             359544.

             This apportionment is based upon the significance of the
             medical treatment rendered and the residual impairment that
             persists relative to the allowed conditions in each claim. The
             Hearing Officer finds the most significant claims in this regard
             are 99-624209, which has entailed three right shoulder
             surgeries, including a right shoulder reverse arthroplasty in
             2015; and 97-626787, which entailed three left shoulder
             surgeries. The remaining three claims: 01-870520, 99-
             623969, and 95-359544, account for residual impairment but
             involve remote surgical procedures and/or injections with
             infrequent follow-up office visits.

             Based upon the report [of] Ronald J. Bloomfield, M.D. dated
             05/19/2017, it is found that the Injured Worker is unable to
             perform any sustained remunerative employment solely as a
             result of the medical impairment caused by the allowed
             physical conditions. Therefore, pursuant to State ex rel.
             Speelman v. Indus. Comm., 73 Ohio App.3d 757, 598 N.E.2d
             192 (10th Dist. 1992), it is not necessary to discuss or analyze
             the Injured Worker's non-medical disability factors.
             Permanent and total disability compensation is awarded from
             05/16/2017 based on the examination performed by Dr.
             Bloomfield on said date. He opines that as the result of
             multiple surgeries to the Injured Worker's bilateral upper
             extremities, and the cumulative effect of the Injured Worker's
             injuries involving multiple joints of the body, she cannot raise
             her arms above the horizon, and her ability to perform
             repetitive work with her hands and write or type is
             significantly impaired. Dr. Bloomfield opines that as the result
             of the allowed conditions in the claim, the Injured Worker
             lacks the musculoskeletal ability to perform activities on a
             sustained basis and is incapable of work.

      {¶ 25} 14. On September 21, 2017, relator moved for reconsideration.
      {¶ 26} 15. On October 19, 2017, splitting two-to-one, the three-member commission
denied reconsideration.
No. 18AP-4                                                                                16


       {¶ 27} 16. On January 2, 2018, relator, Honda of America Mfg., Inc., filed this
mandamus action.
Conclusions of Law:
       {¶ 28} The main issue is whether the reports of Dr. Bloomfield provide some
evidence to support the commission's finding that the medical impairment resulting from
the allowed conditions alone prohibits all sustained remunerative employment and, thus,
support a PTD award without reference to the vocational factors.
       {¶ 29} Finding that the reports of Dr. Bloomfield provide some evidence to support
the commission's finding and award of PTD compensation, it is the magistrate's decision
that this court deny relator's request for a writ of mandamus, as more fully explained below.
                   Basic Law: Non-Allowed Medical Conditions
       {¶ 30} In a seminal case, the Supreme Court of Ohio held that non-allowed
conditions cannot be used to advance or defeat a claim for compensation. State ex rel.
Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). The mere presence of a non-allowed
condition in a claim for compensation does not in itself destroy the compensability of the
claim, but the claimant must meet his burden of showing that an allowed condition
independently caused the disability. State ex rel. Bradley v. Indus. Comm., 77 Ohio St.3d
239, 242 (1997). Even if non-allowed conditions are severe, they are irrelevant as long as
the allowed conditions are independently disabling. State ex rel. WCI Steel, Inc. v. Indus.
Comm., 96 Ohio St.3d 24, 2002-Ohio-3315.
       {¶ 31} While it is the claimant's responsibility to establish a causal relationship
between his allowed conditions and his claimed disability, he is not required to disprove a
negative. State ex rel. Ignatious v. Indus. Comm., 99 Ohio St.3d 285, 2003-Ohio-3627, ¶
33. That is, having supplied evidence of a direct causal relationship between an allowed
condition and his disability, a claimant is not required to further show that a non-allowed
condition is not causing his inability to work. Id. That is, the claimant does not have the
burden of proof regarding the non-allowed conditions. Id. at 32.
                            Relevant Administrative Rules
       {¶ 32} Ohio Adm.Code 4121-3-34 sets forth the commission's rules applicable to the
adjudication of PTD applications.
       {¶ 33} Ohio Adm.Code 4121-3-34(B) sets forth definitions.
No. 18AP-4                                                                                 17


       {¶ 34} Ohio Adm.Code 4121-3-34(B)(3) is captioned "Vocational factors."
       {¶ 35} Ohio Adm.Code 4121-3-34(D) provides guidelines for the adjudication of
PTD applications.
       {¶ 36} Thereunder, Ohio Adm.Code 4121-3-34(D)(2) provides:
              (a) If, after hearing, the adjudicator finds that the medical
              impairment resulting from the allowed condition(s) in the
              claim(s) prohibits the injured worker's return to the former
              position of employment as well as prohibits the injured
              worker from performing any sustained remunerative
              employment, the injured worker shall be found to be
              permanently and totally disabled, without reference to the
              vocational factors listed in paragraph (B)(3) of this rule.

              (b) If, after hearing, the adjudicator finds that the injured
              worker, based on the medical impairment resulting from the
              allowed conditions is unable to return to the former position
              of employment but may be able to engage in sustained
              remunerative employment, the non-medical factors shall be
              considered by the adjudicator.

              The non-medical factors that are to be reviewed are the
              injured worker's age, education, work record, and all other
              factors, such as physical, psychological, and sociological, that
              are contained within the record that might be important to the
              determination as to whether the injured worker may return to
              the job market by using past employment skills or those skills
              which may be reasonably developed. (Vocational factors are
              defined in paragraph (B) of this rule).

             Relator's Argument Regarding Non-Allowed Conditions
       {¶ 37} It is important to note that the commission relied exclusively on the reports
of Dr. Bloomfield in awarding PTD compensation. That is, the commission did not rely on
the report of Dr. Sterle which relator uses here to support its argument that Dr. Bloomfield
relies in part on non-allowed conditions in concluding that claimant is "incapable of work"
as he indicates in the physical strength rating form he completed.
       {¶ 38} Thus, analysis must begin with a review of the reports of Dr. Bloomfield. In
his narrative report (dated May 19, 2017), Dr. Bloomfield repeatedly indicates that he is
aware of all of the allowed conditions of the five industrial claims. On the first page of his
report, he lists the allowed conditions of each industrial claim. Moreover, beginning on the
sixth page of his report through the eighth page of his report, Dr. Bloomfield rates the whole
No. 18AP-4                                                                                 18


person impairment percentage of each of the 20 allowed conditions of the five industrial
claims. It can be said that Dr. Bloomfield painstakingly indicates his awareness of all 20
allowed conditions.
       {¶ 39} On the last page of his narrative report, Dr. Bloomfield renders his conclusion
that claimant is unable to perform all sustained remunerative employment as a result of the
allowed conditions. He writes:
              Ms. Phipps is incapable of work due to the cumulative effect
              of injury to both wrists, both elbows, both shoulders, both
              hips, left knee and cervical spine.

       {¶ 40} Notwithstanding relator's suggestion to the contrary, claimant indeed has
one or more allowed conditions relating to each of the body parts that are said to provide a
cumulative effect of injury. Clearly, Dr. Bloomfield's statement need not be read as an
indication that he is relying on non-allowed conditions in concluding that the cumulative
effect produces an inability to perform sustained remunerative employment.
       {¶ 41} According to relator, in his report, Dr. Sterle "reviewed the diagnostic studies
and noted that the claimant had multilevel cervical degenerative disc and spinal disease in
addition to multilevel lumbar degenerative disc disease and facet joint disease." (Relator's
Brief at 13-14.) Dr. Sterle indicates at page 33 of his report that these conditions are shown
"on the MRI of the cervical spine dating from February 21, 2003." Dr. Sterle indicates at
page 34 of his report that the conditions were "further denoted on the repeat Cervical MRI
study dating from November 17, 2003."
       {¶ 42} Relator further points out that Dr. Sterle "found the claimant to have
osteoarthritis affecting her neck, back and knees." (Relator's Brief at 14.) Dr. Sterle wrote
that "multiple joint osteoarthritis is unrelated to the allowed claims conditions."
       {¶ 43} According to relator, these conditions reported by Dr. Sterle from his review
of the diagnostic studies are non-allowed conditions. Regardless, claimant has no burden
to prove that the non-allowed conditions identified by Dr. Sterle are not the cause of
disability. Ignatious.
       {¶ 44} Relator further points out the following paragraph found at page two of Dr.
Bloomfield's report:
              She is scheduled for right hip replacement surgery and has
              already undergone left total his replacement. She says the left
No. 18AP-4                                                                                    19


              total hip replacement was not covered by BWC, and she is
              doubtful that the right total hip replacement will be covered
              by BWC, although she hopes so. She has been allowed right
              hip bursitis.

       {¶ 45} Nothing in the above-quoted paragraph from Dr. Bloomfield's report detracts
from Dr. Bloomfield's opinion that claimant is incapable of work due to the allowed
conditions of the five industrial claims. Again, the presence of one or more non-allowed
conditions does not in itself destroy the compensability of the claim. Bradley.
       {¶ 46} Based on the foregoing analysis, the magistrate concludes relator has failed
to show that Dr. Bloomfield's report must be eliminated from commission consideration
because of evidence of the existence of non-allowed conditions.
                                  The Bonnlander Case
       {¶ 47} Relator argues that State ex rel. Bonnlander v. Hamon, 150 Ohio St.3d 567,
2017-Ohio-4003, compels this court to issue a writ of mandamus.                 The magistrate
disagrees.
       {¶ 48} As pointed out by the Bonnlander court, permanent total disability is defined
as "the inability to perform sustained remunerative employment due to the allowed
conditions in the claim." Bonnlander at ¶ 15, quoting Ohio Adm.Code 4121-3-34(B)(1).
"Work is 'sustained' if it consists of an ongoing pattern of activity." Id., citing State ex rel.
Kirby v. Indus. Comm., 97 Ohio St.3d 427, 2002-Ohio-6668. "To be considered sustained,
work need not be regular or daily but may be intermittent and occasional." Id., citing State
ex rel. McDaniel v. Indus. Comm., 118 Ohio St.3d 319, 2008-Ohio-2227. "[I]t may be part-
time." Id., citing State ex rel. Toth v. Indus. Comm., 80 Ohio St.3d 360, 362 (1997).
       {¶ 49} A closer review of the Bonnlander case is in order.
       {¶ 50} Timothy Bonnlander applied for PTD compensation on February 28, 2014
following his industrial injury of October 13, 1992. The claim was allowed for numerous
medical conditions and depressive disorder. At the commission's request, Bonnlander was
examined by John J. Brannan, M.D., and Debjani Sinha, Ph.D.
       {¶ 51} Dr. Brannan concluded that Bonnlander's medical conditions would not
prevent him from performing sedentary work.              Dr. Sinha evaluated Bonnlander's
psychological condition and concluded that he was capable of working "part-time, up to 4
hours a day," with the following limitations: "accommodate for variable concentration;
No. 18AP-4                                                                                   20


routine jobs are more appropriate; minimal new learning on an ongoing basis; multiple
breaks." Id. ¶ 4.
       {¶ 52} Following a hearing, an SHO issued an order denying Bonnlander's PTD
application. Relying on the reports of Drs. Brannan and Sinha, the SHO concluded that
Bonnlander "could engage [in] sedentary employment activity which involves part-time
work, up to four hours a day and also involves routine employment and minimal new
learning on an ongoing basis. The sedentary work should also avoid overhead use of the
right arm and avoid excessive lifting, bending and twisting." Id. at ¶ 5.
       {¶ 53} The SHO also analyzed the non-medical disability factors in reaching his
decision to deny the application.
       {¶ 54} Bonnlander then filed a complaint in mandamus in this court. A magistrate
concluded that Dr. Sinha's report supported the commission's decision. The magistrate
held that Dr. Sinha's opinion that Bonnlander can work "up to 4 hours a day" met the
standard for part-time work set forth in State ex rel. Sheller-Chiles v. Indus. Comm., 10th
Dist. No. 13AP-245, 2014-Ohio-313, ¶ 15.
       {¶ 55} This court adopted the magistrate's decision and denied the writ. Bonnlander
appealed as of right to the Supreme Court of Ohio.
       {¶ 56} As stated by the Supreme Court in its decision, the issue is whether Dr.
Sinha's report constitutes some evidence supporting the commission's order denying the
PTD application.
       {¶ 57} While affirming the judgment of this court, the Supreme Court observed that
"[t]here is no statutory or administrative authority for [this court's] interpretation that four
or more hours of work a day is the standard for sustained remunerative employment."
Bonnlander at ¶ 17. Furthermore, the court "generally discourages bright-line rules in
workers' compensation matters." Id. at ¶ 19.
       {¶ 58} In Bonnlander, the Supreme Court held:
              [T]here is no hourly standard for determining one's capability
              to perform sustained remunerative employment on a part-
              time basis. The commission decides whether a claimant is
              capable of sustained remunerative employment on a case-by-
              case basis. Here, Dr. Sinha opined that Bonnlander's
              psychological condition limited him to four hours of work a
              day with multiple breaks. It was within the commission's
              discretion to rely on Dr. Sinha's report as evidence to support
No. 18AP-4                                                                                 21


               the conclusion that Bonnlander was capable of up to four
               hours of sedentary work a day.

Id. at ¶ 20.
       {¶ 59} Relator argues that the Bonnlander case required the commission to read Dr.
Bloomfield's report as indicating that claimant retains the residual functional capacity to
perform at least part-time work on a sustained remunerative employment basis. Based on
relator's own interpretation of Dr. Bloomfield's report, relator asserts that the commission's
reliance on the report required the commission to consider the non-disability factors. In
support of its argument, relator points to Dr. Bloomfield's statement:
               While she can perform activities for a couple of hours at most
               she is not capable of performing activities with her upper
               extremities on a sustained basis.

       {¶ 60} According to relator, the above-quoted statement from Dr. Bloomfield's
report required the commission to conclude that claimant retains the residual functional
capacity for sustained remunerative employment. The magistrate disagrees.
       {¶ 61} Clearly, and to the contrary of relator's argument, Dr. Bloomfield's
assessment that claimant "can perform activities for a couple of hours at most," gave the
commission the discretion to conclude that the statement is consistent with an inability to
perform sustained remunerative employment.
       {¶ 62} Based on the above analysis, the magistrate concludes that relator's reliance
on Bonnlander is misplaced.
                              Participation in Retraining
       {¶ 63} Citing State ex rel. Wilson v. Indus. Comm., 80 Ohio St.3d 250 (1997), relator
asserts that the commission abused its discretion by allegedly failing to recognize "that
there was no evidence that Ms. Phipps participated in vocational rehabilitation nor took
other steps to ameliorate her situation." (Relator's Brief at 17.)
       {¶ 64} In Wilson, the Supreme Court of Ohio 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
No. 18AP-4                                                                             22


                  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.
       {¶ 65} Relator cites R.C. 4123.58(D)(4), which states:
                  (D) Permanent total disability shall not be compensated when
                  the reason the employee is unable to engage in sustained
                  remunerative employment is due to any of the following
                  reasons, whether individually or in combination:

                  ***

                  (4) The employee has not engaged in educational or
                  rehabilitative efforts to enhance the employee's employability,
                  unless such efforts are determined to be in vain.

       {¶ 66} The magistrate disagrees with relator that the commission abused its
discretion with respect to retraining.
       {¶ 67} In State ex rel. R & L Carriers Shared Servs., L.L.C. v. Indus. Comm., 151
Ohio St.3d 568, 2017-Ohio-5833, the court states:
                  Although the commission may consider a claimant's
                  nonparticipation in reeducation or retraining in its analysis of
                  an injured worker's nonmedical disability factors, see State ex
                  rel. Wilson v. Indus. Comm., 80 Ohio St.3d 250, 253-254, 685
                  N.E.2d 774 (1997), when permanent total disability is based
                  solely on the claimant's medical impairment, the commission
                  is not required to consider nonmedical disability factors, State
                  ex rel. Gonzales v. Morgan, 131 Ohio St. 3d 62, 2011-Ohio-
                  6047, 960 N.E.2d 951, ¶ 18.

                  Because the commission decided the permanent-total-
                  disability claim based solely on the claimant's medical
                  impairment caused by the allowed conditions, it was not
                  necessary for it to discuss the nonmedical disability factors.
                  Thus, the commission did not abuse its discretion.

Id. at ¶ 18-19.
       {¶ 68} Here, we have a situation similar to R & L Carriers. The commission, through
its SHO, awarded PTD compensation based solely on claimant's allowed medical
impairment and, thus, the commission was not required to consider non-medical disability
No. 18AP-4                                                                               23


factors. Therefore, the commission did not abuse its discretion with respect to re-education
or retraining.
       {¶ 69} Based on the foregoing analysis with respect to relator's arguments, 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).
