[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Bailey v. Indus. Comm., Slip Opinion No. 2014-Ohio-1909.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-1909
     THE STATE EX REL. BAILEY, APPELLANT, v. INDUSTRIAL COMMISSION
                             OF OHIO ET AL., APPELLEES.

   [Until this opinion appears in the Ohio Official Reports advance sheets,
              it may be cited as State ex rel. Bailey v. Indus. Comm.,
                         Slip Opinion No. 2014-Ohio-1909.]
Workers’ compensation—Evidence—Challenge to medical report as no longer
        probative rejected—Change in circumstances not shown.
     (No. 2012-1826—Submitted February 25, 2014—Decided May 8, 2014.)
     APPEAL from the Court of Appeals for Franklin County, No. 11AP-833,
                                   2012-Ohio-4128.
                               ____________________
        Per Curiam.
        {¶ 1} Appellant, Jason S. Bailey, appeals the judgment of the court of
appeals denying his request for a writ of mandamus that would require the
Industrial Commission to award him permanent-total-disability compensation.
Bailey alleged that the commission abused its discretion by relying on a stale
medical report as evidence to support its decision denying him compensation.
                               SUPREME COURT OF OHIO




        {¶ 2} We agree with the court of appeals that the commission did not
abuse its discretion when it relied on the 2009 report of Dr. Lee Howard as
evidence that Bailey’s allowed psychological conditions did not render him
permanently and totally disabled. We affirm the judgment of the court of appeals
denying Bailey’s request for a writ.
Facts and Procedural History
        {¶ 3} Bailey filed four workers’ compensation claims between August
29, 1996, and December 23, 2003. The allowed conditions include an open
wound to his right thumb, a contusion of his right knee, carpal-tunnel syndrome,
and an injury to his right shoulder with related psychological conditions of pain
disorder and aggravation of pre-existing dysthymia.
First Application for Permanent-Total-Disability Compensation
        {¶ 4} On May 7, 2009, Bailey filed his first application for permanent-
total-disability compensation at age 31. The commission denied his application.
The commission relied on the report of Dr. William Reynolds, who examined
Bailey’s allowed physical injuries and concluded that he was capable of
performing light work, and the report of Lee Howard, Ph.D., a psychologist, who
examined Bailey’s psychological conditions. Dr. Howard determined that Bailey
had reached maximum medical improvement and that Bailey “can perform
without significant limitations at this time. However, this does not take into
account the physical allowances in this claim * * * and/or high levels of
exaggeration and malingering measured on objective psychometric testing.”
Increase in Percentage of Permanent Partial Disability
        {¶ 5} On April 20, 2010, the commission increased Bailey’s percentage
of permanent partial disability, which entitled him to additional compensation for
a period of 36 weeks.1 The order was based, in part, on a 2005 report of Michael

1
  Permanent-partial-disability compensation per R.C. 4123.57 is unrelated to permanent-total-
disability compensation per R.C. 4123.58. Permanent partial disability does not depend on a




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                                   January Term, 2014




Glenn Drown, Ph.D., who had evaluated Bailey’s psychological conditions and
concluded that they had become worse.
Approval of Additional Psychotherapy
        {¶ 6} On September 2010, Charles R. Paugh, Ph.D., Bailey’s treating
psychologist, requested approval for additional psychotherapy to address Bailey’s
complaints of chronic pain and depression.               On behalf of the employer, a
managed-care organization approved six visits for September through December
2010, and later an additional five visits through March 2011.
Second Application for Permanent-Total-Disability Compensation
        {¶ 7} On May 23, 2011, the commission denied Bailey’s second
application for permanent-total-disability compensation. The commission relied
on the September 24, 2009 report of Dr. Howard as evidence that Bailey’s
psychological conditions did not prevent him from returning to work and the
opinion of Joseph Kearns, D.O., that Bailey’s allowed physical injuries would not
prevent him from performing sedentary work. The commission did not rely on
the opinion of Mary K. Hill, Ph.D., whose report stated that Bailey was unable to
work because of his symptoms of depressed mood and pain.
Complaint for Writ of Mandamus
        {¶ 8} Bailey filed a complaint in the Franklin County Court of Appeals
for a writ of mandamus, alleging that the commission abused its discretion when
it relied on Dr. Howard’s report. Bailey alleged that it was not relevant evidence,
because it did not consider new and changed circumstances including his recent
psychotherapy.2



claimant’s ability to return to his or her former position but is more akin to a damages award.
State ex rel. Advantage Tank Lines v. Indus. Comm., 107 Ohio St.3d 16, 2005-Ohio-5829, 836
N.E.2d 550, ¶ 9.
2
  Bailey does not challenge the commission’s analysis of his allowed physical injuries or
nonmedical disability factors.




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       {¶ 9} A magistrate rejected Bailey’s argument that Dr. Howard’s report
was stale evidence. The magistrate concluded that the order recognizing an
increase in Bailey’s percentage of permanent partial disability in 2010 was not a
new or changed circumstance, because the commission’s order had relied on Dr.
Drown’s evaluation of Bailey in 2005, almost four years before Dr. Howard’s
examination.       The magistrate further concluded that the mere approval of
additional psychotherapy treatments by a managed-care organization did not
prove that Bailey’s psychological conditions had become worse.
       {¶ 10} Bailey filed objections alleging that the magistrate failed to address
arguments regarding Dr. Hill’s report and failed to acknowledge the significance
of Bailey’s additional psychological treatments as related to the validity of Dr.
Howard’s report.
       {¶ 11} The court of appeals compared the reports of Dr. Howard and Dr.
Hill. The court noted that Bailey had given a different version of his medical
history to and withheld certain information from Dr. Hill and that, unlike Dr.
Howard, Dr. Hill performed no psychological testing, apparently basing her
opinion on Bailey’s history and complaints. Thus, the appellate court concluded,
the commission acted within its discretion when it relied on Dr. Howard’s report.
The appellate court also agreed that the additional psychotherapy treatments,
approved by a managed-care organization, not by the commission, did not render
Dr. Howard’s opinion invalid.      The court overruled Bailey’s objections and
denied the writ.
       {¶ 12} This matter is before the court on an appeal as of right.
Analysis
       {¶ 13} We must determine whether Dr. Howard’s report supports the
commission’s denial of permanent-total-disability compensation or whether the
report should have been eliminated from consideration because it was stale. State
ex rel. Hiles v. Netcare Corp., 76 Ohio St.3d 404, 667 N.E.2d 1213 (1996).




                                         4
                               January Term, 2014




       {¶ 14} The commission is exclusively responsible for determining the
weight and credibility of the evidence.     State ex rel. Menold v. Maplecrest
Nursing Home, 76 Ohio St.3d 197, 202, 667 N.E.2d 4 (1996), citing State ex rel.
Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 508 N.E.2d 936 (1987). We have
acknowledged that “the probative value of a medical report may be lessened by
later changes in the claimant’s condition, and the longer the time between the
report and the disability alleged, the more likely this is to have occurred.” Id. A
court should be cautious when finding that evidence has become stale. The
content of the report and the question at issue are more relevant than the date the
report was issued. Hiles at 407.
       {¶ 15} Bailey’s argument that Dr. Howard’s report was no longer relevant
in light of new and changed circumstances fails. The evidence did not establish
that Bailey’s psychological conditions had changed since Dr. Howard’s report.
Dr. Drown’s report, used to justify an increase in percentage of permanent partial
disability, was issued in 2005, several years before Dr. Howard examined Bailey.
And the approval of additional psychotherapy was not accompanied by any
evidence that Bailey’s condition had become worse. As the magistrate noted, the
request for additional psychotherapy was based on Bailey’s complaints, not a
medical opinion that Bailey’s condition had become worse, and a managed-care
organization, not the commission, approved the treatments. Thus, the evidence
did not establish any new and changed circumstances in Bailey’s psychological
conditions that would lessen the probative value of Dr. Howard’s medical report.
Menold, 76 Ohio St.3d 197, 667 N.E.2d 4.
       {¶ 16} Bailey also argues that the commission was barred from relying on
Dr. Howard’s report after the commission rejected the report when it ordered an
increase of Bailey’s percentage of permanent partial disability. State ex rel.
Zamora v. Indus. Comm., 45 Ohio St.3d 17, 19, 543 N.E.2d 87 (1989) (it would




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                              SUPREME COURT OF OHIO




be inconsistent for the commission to reject a medical report at one level, for
whatever reason, but to rely on it at another level).
       {¶ 17} We find that Bailey failed to raise this issue below; thus it is
waived. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 679
N.E.2d 706 (1997).         Nevertheless, because permanent partial disability is
completely different from permanent total disability, even if the commission
impliedly rejected Dr. Howard’s opinion on permanent partial disability, this did
not render his opinion on permanent total disability unreliable. State ex rel.
Verbanek v. Indus. Comm., 73 Ohio St.3d 562, 653 N.E.2d 374 (1995).
       {¶ 18} Finally, Bailey maintains that the court of appeals improperly
reweighed the evidence when it compared the opinions of Dr. Howard and Dr.
Hill and questioned Bailey’s credibility.      We disagree.   The court’s role in
reviewing a decision of the commission in a mandamus action is to determine
whether there is any evidence to support the commission’s stated basis for its
decision. State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 508 N.E.2d
936. In doing so, a court may not second-guess the commission’s credibility
determinations relative to the medical reports in the record. State ex rel. Chrysler
Corp. v. Indus. Comm., 81 Ohio St.3d 158, 166, 689 N.E.2d 951 (1998).
       {¶ 19} The court of appeals limited its review of the commission’s
decision to abuse of discretion and determined that Dr. Howard’s report was
relevant evidence.     Thus, we agree that the commission did not abuse its
discretion when it relied on the report of Dr. Howard in denying permanent-total-
disability compensation.
       {¶ 20} Therefore, we affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                              ____________________




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                              January Term, 2014




       Philip J. Fulton Law Office, Chelsea J. Fulton, and Philip J. Fulton, for
appellant.
       Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant
Attorney General, for appellee Industrial Commission.
                        _________________________




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