[Cite as State ex rel. J.C. Penney Co., Inc. v. Indus. Comm., 2014-Ohio-1189.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel.                                   :
J.C. Penney Co., Inc.,
                                                        :
                 Relator,                                                        No. 13AP-448
                                                        :
v.                                                                          (REGULAR CALENDAR)
                                                        :
Industrial Commission
of Ohio and Norma Preece,                               :

                 Respondents.                           :




                                            D E C I S I O N

                                      Rendered on March 25, 2014


                 ICE MILLER LLP, and Patrick A. Devine, for relator.

                 Michael DeWine, Attorney General, and Corinna V.
                 Efkeman, for respondent Industrial Commission of Ohio.

                 Larrimer & Larrimer, and Thomas L. Reitz, for respondent
                 Norma Preece.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, J.C. Penny Co., Inc., commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order granting permanent total disability ("PTD") to respondent, Norma
Preece ("claimant") and to find that the claimant is not entitled to said compensation.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
No. 13AP-448                                                                           2

of fact and conclusions of law, which is appended hereto. The magistrate found that Dr.
Lowe's report constituted some evidence supporting the commission's grant of PTD
compensation to the claimant. Therefore, the magistrate concluded that the commission
did not abuse its discretion. Based upon this finding, the magistrate has recommended
that we deny relator's request for a writ of mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision. Relator argues that
the magistrate erred when she found that Dr. Lowe's report constituted some evidence
supporting the commission's order. Essentially, relator contends that Dr. Lowe's report is
equivocal because he does not clearly state that all of the pain experienced by claimant
was caused by allowed conditions. According to relator, the commission abused its
discretion by relying upon Dr. Lowe's report because of this equivocation. We disagree.
       {¶ 4} We find that Dr. Lowe's report is not equivocal. Dr. Lowe clearly stated that
claimant is unable to perform any sustained remunerative employment solely as a result
of the allowed psychological condition. Dr. Lowe's report contains nothing that conflicts
with this conclusion. Dr. Lowe's failure to attribute all of the claimant's pain to the
allowed conditions does not constitute equivocation in his opinion that the claimant is
unable to work solely because of the allowed psychological condition. Therefore, we
overrule relator's objections.
       {¶ 5} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
                                         Objections overruled; writ of mandamus denied.

                             TYACK and CONNOR, JJ., concur.
No. 13AP-448                                                                            3

                                       APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel.                         :
J.C. Penney Co., Inc.,
                                              :
              Relator,                                            No. 13AP-448
                                              :
v.                                                           (REGULAR CALENDAR)
                                              :
Industrial Commission
of Ohio and Norma Preece,                     :

              Respondents.                    :



                         MAGISTRATE'S DECISION

                              Rendered on October 22, 2013


              ICE MILLER LLP, and Patrick A. Devine, for relator.

              Michael DeWine, Attorney General, and Korinna V.
              Efkeman, for respondent Industrial Commission of Ohio.

              Larrimer & Larrimer, and Thomas L. Reitz, for respondent
              Norma Preece.


                                     IN MANDAMUS

       {¶ 6} Relator, J.C. Penney Co., Inc., has filed this original action requesting that
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which granted permanent total disability ("PTD")
compensation to respondent Norma Preece ("claimant") and ordering the commission to
find that claimant is not entitled to that compensation.
No. 13AP-448                                                                           4

Findings of Fact:
        {¶ 7} 1. Claimant sustained a work-related injury on September 23, 1975, and her
workers' compensation claim has been allowed for the following conditions:
              Lower back injury; osteoarthritis of low back; degenerative
              disc disease at L4-5; disc herniation at L4-5; depressive
              disorder.

        {¶ 8} 2. Claimant continued to receive treatment for her allowed back conditions
and has undergone the following surgeries:
              [One] 11/17/1975 L4-5 laminectomy with disc excision
              [Two] 10/11/1976, L4-5 laminectomy and disc excision
              [Three] L4-5 laminectomy on 12/1979
              [Four] 08/16/2005, L4-5 decompressive laminectomy with
              an L4-5 diskectomy. An interbody fusion and reinforced the
              pedicle screw fixation at L4-5

        {¶ 9} 3. Claimant last worked for relator in 1976, at which time she found herself
unable to continue due to the allowed conditions in her claim.
        {¶ 10} 4. Thereafter, claimant obtained her GED and attended Columbus
Technical Institution (nka Columbus State Community College) and returned to sustained
remunerative employment in hospitality, as a clerk, and as an auditor.
        {¶ 11} 5. It appears that claimant last worked in 2001.
        {¶ 12} 6. Claimant began treating for her allowed psychological condition with
Beal D. Lowe, Ph.D., in 2007.
        {¶ 13} 7. Claimant filed her application for PTD compensation on August 22,
2012.
        {¶ 14} 8. Claimant's application was supported by the August 20, 2012 report of
David A. Rath, M.D., who stated:
              The patient continues to have constant pain and her back
              pain is aggravated by movement. Norma finds relief from
              medication to be modest. When asked about severity, she
              ranks it currently as 8/10. The symptoms occur all the time.

              ***

              Patient is unable to return to her profession. She requires
              frequent changes of position. She is unable to take baths she
No. 13AP-448                                                                          5

                must take showers due to neuropathy in both legs due to her
                back pain.

                ***

                Based on the above findings I believe her to be permanently
                and totally disabled.

          {¶ 15} 9. Claimant also submitted the March 18, 2012 report from Dr. Lowe who
stated:
                As you are aware, I have been providing psychological
                treatment to Ms. Preece for this depressive condition since
                2007. During this time, Ms. Preece has been consistently
                depressed by the severe chronic pain which she experiences
                and her resulting inability to work or to adequately function
                in her social or home life. Ms. Preece sleeps very poorly
                because of pain and depression. When I first began to work
                with her, she still had some minor hobbies and crafts. She
                has subsequently lost her interest in those tasks. At this
                point, her only avocation is reading. She socializes very little
                and rarely leaves the home except for medical appointments.

                It is my professional opinion that as a result of the symptoms
                resulting from her depression, including reduced
                concentration and memory, irritability, reduced energy, and
                persistence, that Ms. Preece lacks any ability to perform or
                sustain gainful employment. This depression is clearly the
                result of her injuries and chronic pain[.]

                I strongly support Ms. Preece's application for permanent
                total disability and believe that she has no capacity to
                perform any employment as a result of her allowed
                psychological condition.

          {¶ 16} 10. Relator had claimant examined by Richard H. Clary, M.D.       In his
September 21, 2012 report, Dr. Clary opined that, in his medical opinion, the average
length of treatment for the allowed psychological condition in the claim would be six
months. He concluded that her allowed psychological condition had reached maximum
medical improvement ("MMI"), that she had a 10 percent whole person impairment and
that her allowed psychiatric condition alone would not cause any limitations or
restrictions on her ability to work.
No. 13AP-448                                                                         6

       {¶ 17} 11. Relator also had claimant examined by John W. Cunningham, M.D. In
his September 18, 2012 report, Dr. Cunningham identified the allowed conditions in the
claim, discussed the medical records which he reviewed, provided his physical findings
upon examination, and concluded that claimant's allowed physical conditions had
reached MMI, assessed a 23-percent whole person impairment, concluded that she was
capable of performing some sustained remunerative employment with the following
restrictions:
                [N]o lifting, carrying, pushing, pulling or otherwise moving
                objects greater than 20 pounds, and with the ability to
                alternate sitting and standing throughout the work shift.

       {¶ 18} 12. Claimant was also examined by Joseph Kearns, D.O.              In his
November 19, 2012 report, Dr. Kearns identified the allowed conditions in claimant's
claim, provided his physical findings upon examination, concluded that her allowed
conditions had reached MMI, assessed a 28-percent whole person impairment, and
opined that she was capable of performing sedentary work noting that she could lift up to
10 pounds maximum, and would be limited in her bending, twisting and overhead work.
       {¶ 19} 13. Claimant was also evaluated by John M. Malinky, Ph.D.           In his
November 28, 2012 report, Dr. Malinky noted that claimant indicated she wakes up with
pain and the pain remains throughout the day worsening with activity.          Claimant
indicated that her back pain caused her to quit her job. Ultimately, Dr. Malinky found
that claimant's allowed psychological condition had reached MMI, opined that she had
suffered a class 3 moderate impairment, assessed a 26-percent whole person impairment,
and found that she could work with the following limitations/modifications:
                [One] This individual would not be able to deal with the
                public. This injured worker would have difficulty completing
                a normal workday and workweek without interruption from
                psychological based symptoms and to perform at a
                consistent pace without an unreasonable number and length
                of rest periods.

                [Two] This injured worker would have difficulties
                maintaining attention and concentration for extended
                periods of time.
No. 13AP-448                                                                              7

              [Three] This injured worker would not be able to accept
              instructions and respond appropriately to criticism from
              supervisors.

       {¶ 20} 14. Claimant's application for PTD compensation was heard before a staff
hearing officer ("SHO") on February 15, 2013. The SHO relied on the medical report of
Dr. Lowe and concluded that claimant was permanently and totally disabled due to the
allowed psychological condition.
       {¶ 21} 15. Relator filed an application for reconsideration arguing that the report
of Dr. Lowe did not constitute some evidence upon which the commission could rely and
that the SHO's order did not comply with the requirements of State ex rel. Noll v. Indus.
Comm., 57 Ohio St.3d 203 (1991).
       {¶ 22} 16. In an order mailed April 12, 2013, the commission denied relator's
request for reconsideration.
       {¶ 23} 17. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 24} Relator contends that the commission abused its discretion by relying upon
the report of Dr. Lowe. Relator contends that Dr. Lowe opined that claimant's chronic
pain prevents her from engaging in sustained remunerative employment; however,
inasmuch as chronic pain is not an allowed condition, relator contends that Dr. Lowe's
report is internally inconsistent and equivocal.
       {¶ 25} Finding that the report of Dr. Lowe is not equivocal or internally
inconsistent, the magistrate finds that the commission did not abuse its discretion by
relying on that report.
       {¶ 26} 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).
       {¶ 27} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
No. 13AP-448                                                                             8

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).
       {¶ 28} 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).
       {¶ 29} Relator makes the same argument here that relator made in its request for
reconsideration. Relator contends that Dr. Lowe does not reference any medical evidence
to establish the existence of or the degree of disability arising from claimant's chronic
pain. Further, inasmuch as relator contends that claimant has other back conditions
which are not allowed in this claim, relator argues that it is just as likely that claimant's
chronic pain stems from a non-allowed condition. Therefore, relator contends that Dr.
Lowe's report is equivocal and internally inconsistent and that the commission abused its
discretion by relying on it.
       {¶ 30} Equivocal medical opinions are not evidence. State ex rel. Eberhardt v.
Flxible Corp., 70 Ohio St.3d 649, 655 (1994).        Equivocation occurs when a doctor
repudiates an earlier opinion, renders contradictory or uncertain opinions, or fails to
clarify an ambiguous statement. Id. Ambiguous statements, however, are considered
No. 13AP-448                                                                            9

equivocal only while they are unclarified. Id. The Supreme Court, at 657, further explains
ambiguous statements:
              [A]mbiguous statements are inherently different from those
              that are repudiated, contradictory or uncertain. Repudiated,
              contradictory or uncertain statements reveal that the doctor
              is not sure what he means and, therefore, they are inherently
              unreliable. Such statements relate to the doctor's position on
              a critical issue. Ambiguous statements, however, merely
              reveal that the doctor did not effectively convey what he
              meant and, therefore, they are not inherently unreliable.
              Such statements do not relate to the doctor's position, but to
              his communication skills.

       {¶ 31} A medical report can be so internally inconsistent that it cannot be some
evidence upon which the commission can rely. State ex rel. Lopez v. Indus. Comm., 69
Ohio St.3d 445 (1994), and State ex rel. Taylor v. Indus. Comm., 71 Ohio St.3d 582
(1995).
       {¶ 32} Both claimant and the commission argue that Dr. Lowe did not opine that
chronic pain prohibited claimant from performing some sustained remunerative
employment; instead, they assert that Dr. Lowe opined that the symptoms resulting from
claimant's allowed psychological condition caused her depression, reduced concentration
and memory, irritability, reduced energy, and persistence such that she lacks the ability to
perform any sustained remunerative employment.
       {¶ 33} As noted in the findings of fact, Dr. Lowe stated:
              As you are aware, I have been providing psychological
              treatment to Ms. Preece for this depressive condition since
              2007. During this time, Ms. Preece has been consistently
              depressed by the severe chronic pain which she experiences
              and her resulting inability to work or to adequately function
              in her social or home life. Ms. Preece sleeps very poorly
              because of pain and depression. When I first began to work
              with her, she still had some minor hobbies and crafts. She
              has subsequently lost her interest in those tasks. At this
              point, her only avocation is reading. She socializes very little
              and rarely leaves the home except for medical appointments.

              It is my professional opinion that as a result of the symptoms
              resulting from her depression, including reduced
              concentration and memory, irritability, reduced energy, and
              persistence, that Ms. Preece lacks any ability to perform or
No. 13AP-448                                                                              10

              sustain gainful employment. This depression is clearly the
              result of her injuries and chronic pain * * *.

              I strongly support Ms. Preece's application for permanent
              total disability and believe that she has no capacity to
              perform any employment as a result of her allowed
              psychological condition.

       {¶ 34} Upon examination, the magistrate does not find that there is any
equivocation, uncertainty or ambiguous statements in Dr. Lowe's report. Instead, Dr.
Lowe indicates that he has been providing psychological treatment for claimant's
depressive condition since 2007. Claimant's claim is indeed allowed for "depressive
disorder."
       {¶ 35} Further, in terms of pain, the magistrate notes that, in his August 20, 2012
report, relator's treating physician Dr. Rath, indicated that claimant "continues to have
constant pain and her back pain is aggravated by movement. Norma finds relief from
medication to be modest. When asked about severity, she ranks it currently as 8/10. The
symptoms occur all the time."        Granted, Dr. Rath did include a non-allowed back
condition in his list of allowed conditions; however, there is other medical evidence in the
record detailing the pain claimant's allowed physical conditions cause her.
       {¶ 36} In his September 18, 2013 report, Dr. Cunningham indicated that "[a]t the
present time, [claimant] complains of constant right low back pain, which extends down
the right leg * * * and feels as though there is a 'tearing' sensation in the low back." In his
November 19, 2012 report, Dr. Kearns noted that "[c]urrently, she has pain in her lower
back all the time. On a normal day, it will be 4/10. With activity, it can jump up to an 8 or
10/10. She has to lean on the sink when she has been washing dishes. She can only walk
about 40 feet without a cane and can't walk further without stopping. She can sit in one
position for about 10 minutes and about 30 minutes if she shifts her position." In his
November 28, 2012 report, Dr. Malinky noted that, in the morning when she wakes,
claimant reports that her pain is 4/10, increases to 6/10 as she prepares breakfast, and
becomes a 9 or 10/10 if she does housework. Claimant indicated that she has to sit down
and feels discouraged.
       {¶ 37} Contrary to relator's assertions, there is medical evidence in the record
supporting Dr. Lowe's statement that claimant's allowed conditions cause her significant
No. 13AP-448                                                                           11

chronic pain.     Aside from Dr. Rath, all the other doctors correctly identified only
claimant's allowed conditions and noted that she has significant daily pain. Therefore, the
magistrate does not find Dr. Lowe's reference to claimant's chronic pain to be a valid
reason for removing his report from evidentiary consideration.
       {¶ 38} Further, to the extent that relator points to the reports of Drs. Clary,
Malinky, and Kearns, and argues that those reports are more persuasive, relator's
argument fails to demonstrate an abuse of discretion on the part of the commission. And,
as indicated above, all those doctors noted that claimant reported significant, daily
chronic pain.     Claimant does not have to have her claim allowed for chronic pain
syndrome before doctors and the commission can consider the effect of the pain caused
by her allowed conditions. Relator's arguments go to credibility and the weight of the
evidence.     It is undisputed that questions of credibility and the weight to be given
evidence are clearly within the discretion of the commission as fact finder.        Teece.
Further, it is immaterial whether other evidence, even if greater in quality and/or
quantity, supports a decision contrary to the commission's. State ex rel. Pass v. C.S.T.
Extraction Co., 74 Ohio St.3d 373 (1996).
       {¶ 39} Here, the commission identified the medical report upon which it relied and
provided a brief explanation for finding that claimant was entitled to an award of PTD
compensation. Finding that relator has not demonstrated that the report of Dr. Lowe
does not constitute some evidence upon which the commission could properly rely, the
magistrate finds that relator has not demonstrated that the commission abused its
discretion.
       {¶ 40} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion, and relator's request for a writ of
mandamus should be denied.




                                            /S/ MAGISTRATE
                                            STEPHANIE BISCA BROOKS
No. 13AP-448                                                                 12

                          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).
