[Cite as State ex rel. Werman v. Indus. Comm., 2017-Ohio-4409.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

The State ex rel. Alfred E. Werman, III,              :

                Relator,                              :

v.                                                    :                  No. 16AP-637

Industrial Commission of Ohio                         :             (REGULAR CALENDAR)
and
C & A Ambulance, Inc.,                                :

                Respondents.                          :


                                            D E C IS I O N

                                     Rendered on June 20, 2017


                Law Offices of Brelo & Annotico, and Ronald A. Annotico,
                for relator.

                Michael DeWine, Attorney General, and Latawnda N.
                Moore, for respondent Industrial Commission of Ohio.


                                            IN MANDAMUS

TYACK, P.J.

        {¶ 1} Alfred E. Werman, III, filed this action in mandamus, seeking a writ to
compel the Industrial Commission of Ohio ("commission") to grant him an award of
permanent total disability compensation.
        {¶ 2} In accord with Loc.R. 13 of the Tenth District Court of Appeals, the case was
referred to a magistrate to conduct appropriate proceedings.
        {¶ 3} The parties stipulated the pertinent evidence and filed briefs.              The
magistrate then issued a magistrate's decision, appended hereto, which contains detailed
findings of fact and conclusions of law.                   The magistrate's decision includes a
recommendation that we deny the request for a writ of mandamus.
No. 16AP-637                                                                            2


       {¶ 4} No party has filed objections to the magistrate's decision.
       {¶ 5} We, as a court, now undertake an independent review of the magistrate's
decision.
       {¶ 6} We find no error of law or fact on the face of the magistrate's decision. We,
therefore, adopt the findings of fact and conclusions of law contained in the magistrate's
decision. As a result, we deny the request for a writ of mandamus.
                                                               Writ of mandamus denied.

                          SADLER and BRUNNER, JJ., concur.
No. 16AP-637                                                                             3


                                APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel. Alfred E. Werman, III,     :

              Relator,                       :

v.                                           :                    No. 16AP-637

Industrial Commission of Ohio                :               (REGULAR CALENDAR)
and
C & A Ambulance, Inc.,                       :

              Respondents.                   :



                         MAGISTRATE'S DECISION

                               Rendered on March 21, 2017



              Law Offices of Brelo & Annotico, and Ronald A. Annotico,
              for relator.

              Michael DeWine, Attorney General, and Shaun P. Omen, for
              respondent Industrial Commission of Ohio.


                                     IN MANDAMUS

       {¶ 7} Relator, Alfred E. Werman, III, 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 denies his application for permanent total
disability ("PTD") compensation, and ordering the commission to find that he is entitled
to that award.
Findings of Fact:
No. 16AP-637                                                                              4


        {¶ 8} 1. Relator sustained a work-related injury on February 24, 1987 while
working as an EMT.
        {¶ 9} 2. Relator's workers' compensation claim has been allowed for the
following conditions: "strain low back, neck and both shoulders; bulging annulus L4, L5;
major depressive disorder single."
        {¶ 10} 3. Relator was unable to return to his job as an EMT following the injury
and received temporary total disability ("TTD") compensation for several years until he
resumed employment as a cashier.
        {¶ 11} 4. Relator has not undergone any surgeries for the allowed conditions in his
claim; however, he had surgeries for non-allowed conditions of his neck in 2005 and
2006.
        {¶ 12} 5. In 2005, relator filed an application with the Social Security
Administration seeking a determination of disability based on the following conditions:
               [C]hronic neck pain status post surgical fusion and
               stabilization with plate and screws; major depressive
               disorder, generalized anxiety disorder; and lumbar
               radiculopathy.

               Ultimately, the Social Security Administration found that relator had been
disabled as defined by the Social Security Act since August 2005, the date he filed his
application.
        {¶ 13} 6. Relator began receiving TTD compensation again, effective June 7, 2009.
This award was based solely on the allowed psychological condition.
        {¶ 14} 7. Marian Chatterjee, Ph.D., performed a psychological evaluation of relator
on December 12, 2013. With regard to the onset of his psychological problems and his
treatment, Dr. Chatterjee stated:
               The IW had marital and personal counseling in 1987 or 1990
               and was taking Paxil at the time of his injury. He developed
               Major Depression, Single Episode, as a result of the work
               injury. Reports of when he began treatment for his injury-
               related condition vary widely. The IW said he began
               treatment in 2007. IMEs vary in their reports as to when the
               IW began treatment for his injury-related depression from
               1997 ("Ten years after his injury," to 2006, as per Dr.
               Sargious' C84.) He has been in counseling with Keith Burger,
No. 16AP-637                                                                     5


             LISW, and has seen a psychiatrist, Ehab Sargious, M.D., for
             at least the last seven years. He stated for the last year he has
             been seen by Mr. Burger twice a month, yet records do not
             support this. In fact, in his treatment summary on
             10/16/2013, Mr. Burger stated the IW had only been to
             counseling four times in the last six months. Presently, the
             IW takes Paxil 40mg qd, Wellbutrin 150mg qam, Seroquel
             50mg hs, and Valium 10mg qid. On 10/11/11, the IW went to
             Trumbull Memorial ER for suicidal ideation after having
             researched how to kill himself and it said to get help before
             trying. He was not admitted to the hospital. Per Trumbull
             Memorial Hospital ER notes, "Past psychiatric history: prior
             diagnosis: depression. Severity of symptoms: At their worst,
             symptoms were moderate. It is unknown whether patient has
             had similar symptoms in the past. PATIENT READING A
             BOOK ON HOW TO KILL SELF. HANGING 75 PERCENT
             EFFECTIVE, SHOOTING, MAY FLINCH. Associated signs
             and symptoms: Pertinent positives: depression: BROTHER
             SICK, MAKING PATIENT DEPRESSED, BUT NO INTENT
             ON KILLING SELF HE INSISTS. WIFE AND FAMILY AND
             FRIENDS LATER HERE INSIST PATIENT GO HOME
             THAT HE IS NOT SUICIDAL." The IW has been on his
             current psychotropic meds for about eight months and
             seeing his counselor "twice a month" per self-report but not
             even once a month per the 10/16/13 treatment summary. In
             therapy at least the past six years, when asked how he feels
             he is doing, he stated, "A little bit better." He thinks he tries
             to do more house chores than he used to. "I'm trying to look
             at my cup as half full." He was unable to articulate actual
             behavior changes. "I think I am more patient with my
             decisions."

       {¶ 15} With regard to his current mental state and level of functioning,
Dr. Chatterjee opined that relator had reached maximum medical improvement ("MMI"),
stating:
             [T]he IW has undergone many years of psychiatric and
             psychological treatment. Reports of when he began
             treatment vary greatly. In Dr. Villalba's IME 11/1/12, he
             states the IW has been in treatment for depression 8 years.
             In Dr. Leach's 3/16/12 report, he states treatment began 10
             years after the 1987 work injury. Dr. Sargious' C84, dated
             7/6/11, indicated a disability starting date on 2/10/06.
             Dr. Pecorelli's C92, dated 10/10/11, states the IW began
             treatment in 2005. His psychotropics have remained
No. 16AP-637                                                                             6


              unchanged for at least eight months. In his treatment
              summary of 10/16/13, Mr. Burger stated the IW had been
              seen four times in the last six months. In addition, stressors
              were overwhelmingly unrelated to the work injury, "Most of
              the problem children, family members are no longer living
              with them and so stress is down for the moment. But he is
              about to become embroiled in a custody fight for two of his
              children, which if successful would once again change the
              family dynamics and likely increase stress on him and his
              wife Judy. Custody fights and blended families are often
              stressful and I expect this situation to be no different. If he
              should lose the custody fight, it would be most difficult for
              him to accept." An 8/2/12 summary by the IW's therapist
              focused almost exclusively on the IW's numerous family
              stressors. While the consequences of his injury are
              significant and persistent, there are numerous significant
              stressors that in my opinion are not directly related to the
              injury. Besides being very much affected by the family
              dysfunction, the IW was unable to articulate any objective
              progress. He has reached a treatment plateau.

        {¶ 16} Considering only his psychological conditions, Dr. Chatterjee opined that
relator would be able to return to his former work and that he did not need any more
psychological treatment for the allowed conditions in his claim. With regard to his overall
psychiatric condition, Dr. Chatterjee noted that he had many life stressors which were
unrelated to his 1987 work injury and those stressors continued to cause him problems.
        {¶ 17} 8. Relator's compensation was terminated effective January 23, 2014 based
on a finding that the allowed conditions in his claim had reached MMI. The commission
relied on the report of Dr. Chatterjee.
        {¶ 18} 9. Relator filed his application for PTD compensation on September 18,
2015.   At that time, relator was 51 years old.     According to his application, relator
indicated that he had obtained his GED and had received an associate's degree from
Cuyahoga Community College. He could also read, write, and perform basic math and
indicated that he had participated in some vocational rehabilitation.
        {¶ 19} 10. Relator's application for PTD compensation was supported by medical
reports from Douglas Muccio, Ph.D., and M.P. Patel, M.D. In his May 21, 2015 report, Dr.
Muccio opined that relator's psychiatric condition alone rendered him unable to be
competitively employed. In his July 20, 2015 report, Dr. Patel provided his physical
No. 16AP-637                                                                            7


findings on examination and opined that, as a result of the allowed physical conditions in
his claim, relator was permanently and totally disabled from engaging in any gainful
employment.
      {¶ 20} 11. John L. Dunn, D.O., examined relator for his allowed physical
conditions. In his April 4, 2016 report, Dr. Dunn identified the allowed conditions in
relator's claim and provided his physical findings on examination. Dr. Dunn opined that
relator had a 42 percent impairment for the current allowed physical conditions and
opined that relator was capable of performing medium level work.
      {¶ 21} 12. Relator's application was heard before a staff hearing officer ("SHO") on
June 22, 2016. The SHO discussed relator's injury, his work history following the injury,
and spent a considerable amount of time discussing the disability application filed with
the Social Security Administration. The SHO quoted from the determination, stating:
              The Administrative Law Judge determined that the Injured
              Worker has "severe impairments: chronic neck pain
              status post-surgical fusion and stabilization with
              plate and screws." (Emphasis added.) The Administrative
              Law Judge explained further as follows:

              The medical evidence of record reflects the claimant's
              multiple cervical spine surgeries, and documents post-
              surgical imaging showing swelling and continuing disc space
              narrowing. The claimant's head and neck pain has been so
              severe as to require emergency treatment, and physical
              examination shows continued right upper extremity
              weakness. In terms of the lumbar spine, imaging showed disc
              herniation. The most recent physical examination showed
              decrease range of motion throughout, and in terms of the
              lower extremities, positive straight leg raising test, decreased
              sensation in the L5 distribution, inability to heel-toe walk,
              and wide based in the L5 distribution, inability to heel-toe
              walk, and wide-based gait. Chronic pain has leg to increased
              depression, requiring emergency treatment related to
              suicidal ideation. (Emphasis added.)

              Based upon the above findings, the Administrative Law
              Judge awarded the Injured Worker Social Security Disability
              benefits for a disability period commencing 8/23/2005.
              Again, this worker's compensation claim has not
              been recognized for any cervical disc disorder or
              lumbar disc herniation. The Administrative Judge of the
No. 16AP-637                                                                                8


              Social Security Administration clearly based his impairment
              determination on conditions presently outside the scope of
              this worker's compensation claim.

(Emphasis sic.)

       {¶ 22} Ultimately, the SHO relied on the same medical evidence relied on by the
Social Security Administration as well as the report of Dr. Dunn and opined that, based
solely on the allowed physical conditions in his claim, relator was able to perform at a
medium strength level.
       {¶ 23} With regard to the allowed psychological condition, the SHO relied on the
report of Dr. Chatterjee stressing her opinion that, based on the allowed psychological
condition, relator could return to his former position of employment as an EMT.
       {¶ 24} Thereafter, the SHO considered that relator's age of 52 years was a positive
factor which provided him time to undergo and re-education or training necessary to find
employment within his residual capacity, his attainment of a GED and an associate's
degree were also considered positive factors.        Thereafter, the SHO considered his
employment as an EMT, cashier, and a sales associate to have provided him with skills
that were transferrable to work within his residual functional capacity. As a result, the
SHO denied his application for PTD compensation.
       {¶ 25} 13. Relator's request for reconsideration was denied by order mailed
August 13, 2016.
       {¶ 26} 14. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 27} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 28} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 29} 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
No. 16AP-637                                                                              9


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).
       {¶ 30} 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).
       {¶ 31} Relator's first argument is that the commission abused its discretion by
relying on the report of Dr. Chatterjee. First, relator argues that Dr. Chatterjee's report
was stale and the purpose of the report was not to assess whether or not relator was
permanently and totally disabled. Second, relator argues that Dr. Chatterjee's report did
not take into account intervening events which resulted in the deterioration of his
psychological condition.
       {¶ 32} Pursuant to Ohio Adm.Code 4121-3-34(C)(1) with regards to applications
for PTD compensation, any medical examination on which a report is based must be
performed within 24 months prior to the date of the filing of the application for PTD
compensation. As such, Dr. Chatterjee's report is not necessarily stale as a matter of law.
Further, although the examination and report were conducted and written to evaluate
No. 16AP-637                                                                               10


whether or not relator continued to be entitled to TTD compensation as opposed to PTD
compensation, Dr. Chatterjee did address the issue which is pertinent in a PTD
determination.      Dr. Chatterjee specifically stated that relator's allowed psychological
condition was not work prohibitive. In fact, Dr. Chatterjee opined that relator could
return to his former position of employment when only the allowed psychological
condition was considered. As such, Dr. Chatterjee's report was not necessarily stale and
did address the pertinent question.
       {¶ 33} Part of relator's staleness argument is that Dr. Chatterjee's report did not
take into account relator's attempted suicide and hospitalizations which occurred after Dr.
Chatterjee wrote her report. This part of relator's argument necessitates a review of the
medical records related to these occurrences. The April 11, 2016 report from Ten Lakes
Center indicates:
              51 year old Caucasian male, presenting to the ED after a
              suicide attempt by crashing his car in to a pole while
              intoxicated. PT is sad, depressed, hopeless, emotionally
              unstable and anxious. PT has marital problems and said that
              he is tired of life and hates life. PT needs to be evaluated to
              ensure safety and stability.

       {¶ 34} Additional records from Ten Lakes Center, including the report dated
April 11, 2016, indicate that relator's history was significant for depression, as well as
chronic back, neck, and hip pain. Those records indicate that the neck surgery relator
underwent did not have a positive outcome.
       {¶ 35} As Dr. Chatterjee noted in her report, relator has other significant life
stressors which impact his psychological condition. Nothing in the records from Ten
Lakes Center supports relator's argument that his attempt at suicide resulted from the
allowed condition in his workers' compensation claim. Instead, evidence of his marital
problems, the upcoming custody battle, and the pain in his neck from a failed surgical
surgery significantly impacted him both physically and psychologically. As such, to the
extent that relator argues that Dr. Chatterjee's report is stale because it does not take into
account his attempt at suicide and psychiatric hospitalizations is not supported by the
medical evidence in the record as it cannot be said that those events were related to the
allowed conditions in his claim.      As such, the magistrate finds that relator did not
No. 16AP-637                                                                              11


demonstrate that the commission abused its discretion when it relied on the report of Dr.
Chatterjee.
       {¶ 36} Relator also argues that the commission arbitrarily and unreasonably
rejected his competent medical evidence pertaining to his allowed physical conditions
without explanation. The magistrate specifically rejects this argument because, by law,
the commission is only required to identify the medical evidence on which it relies and
provide a brief explanation. The commission is not required to mention other reports
which are also in evidence, nor is the commission required to provide any explanation for
why it found certain medical evidence to be unpersuasive. See State ex rel. DeMint v.
Indus. Comm., 49 Ohio St.3d 19 (1990); State ex rel. Lovell v. Indus. Comm., 74 Ohio
St.3d 250 (1996). Further, the commission is the sole evaluator of the medical evidence
and it is immaterial whether there is other evidence, even if greater in quantity or quality.
State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981); State ex rel. Pass v. C.S.T.
Extraction Co., 74 Ohio St.3d 373 (1996).
       {¶ 37} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied his application
for PTD compensation and this court should deny his 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).
