[Cite as State ex rel. Hettinger v. Indus. Comm., 2017-Ohio-7899.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Ronald L. Hettinger, Jr.,             :

                 Relator,                               :

v.                                                      :               No. 16AP-751

Ferrellgas, Inc., and                                   :            (REGULAR CALENDAR)
Industrial Commission of Ohio,
                                                        :
                 Respondents.
                                                        :



                                            D E C I S I O N

                                   Rendered on September 28, 2017


                 On brief: Craigg E. Gould, for relator.

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


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.

        {¶ 1} Relator, Ronald L. Hettinger, Jr., commenced this action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order that denied his application for permanent total disability ("PTD")
compensation, and to issue an order granting said compensation.
        {¶ 2} Pursuant to Civ.R. 53(C) 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
of fact and conclusions of law, which is appended hereto. The magistrate found that Dr.
Reynolds' opinion was some evidence that relator's allowed psychological condition would
No. 16AP-751                                                                                2

not prevent him from sustained remunerative employment. The magistrate also found
that the commission was not required to explain why it did not rely on the report of Dr.
Sed, which relator offered in support of his PTD application. Citing State ex rel. Noll. v.
Indus. Comm., 57 Ohio St.3d 203 (1991) and State ex rel. Mitchell v. Robbins & Myers,
Inc., 6 Ohio St.3d 481 (1983), the magistrate noted that the commission is only required
to identify the medical evidence on which it relies and is not required to cite all the
evidence it considered. Therefore, the magistrate determined that the commission did
not abuse its discretion when it denied relator's PTD application.         Accordingly, 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.           In his first
objection, relator argues that the commission's failure to address Dr. Sed's report
indicates that the commission did not consider it.          Relator also argues that the
commission was required to discuss Dr. Sed's report and to explain why it was rejected.
Both of these arguments are misplaced.
       {¶ 4} As noted by the magistrate, the commission is only required to state the
evidence upon which it relied and to briefly explain the basis for why a claimant is or is
not entitled to the requested benefits so that there can be a meaningful review of that
decision if such review is sought. The commission is not required to identify evidence that
it found unpersuasive. Nor is it required to explain why that evidence was rejected. Noll.
       {¶ 5} Relator contends that State ex rel. Ritzie v. Reece-Campbell, Inc., 146 Ohio
St.3d 259, 2015-Ohio-5224 required the commission to explain why it rejected Dr. Sed's
report. We disagree. As the commission points out, in Ritzie, the only medical evidence
of the alleged disability was from the treating physician. There was no contrary medical
evidence before the commission.        Under those circumstances, Ritzie required the
commission to explain why it rejected the only medical report in the file. In the case at
bar, however, there was conflicting medical evidence before the commission. Under those
circumstances, the commission was only required to state the evidence on which it relied
and to briefly explain why relator was not entitled to PTD compensation. The commission
satisfied those requirements. Therefore, we overrule relator's first objection.
       {¶ 6} In his second objection, relator argues that the magistrate should have
found the commission's reliance on Dr. Reynolds' report was an abuse of discretion.
No. 16AP-751                                                                              3

Relator contends that Dr. Reynolds' report is not evidence on which the commission could
rely because Dr. Reynolds' report was issued in the context of a temporary total disability
("TTD") application and because the report was allegedly stale. Again, we disagree.
       {¶ 7} As noted by the commission, Ohio Adm.Code 4121-3-34(C)(1) permits the
commission to consider the report of a medical examination that was conducted within 24
months of the filing of the PTD application. Dr. Reynolds' examination of relator was
conducted well within that timeframe. Therefore, Dr. Reynolds' report was not stale. Nor
is it significant that Dr. Reynolds examined relator in the context of a TTD application. If
relator is capable of returning to his former position of employment, he is capable of
sustained remunerative employment. For these reasons, we agree with the magistrate
that the commission did not abuse its discretion when it relied on Dr. Reynolds' report in
denying relator's PTD application. Therefore, we overrule relator's second objection.
       {¶ 8} 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, P.J, and DORRIAN, J., concur.
No. 16AP-751                                                                           4

                                        APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Ronald L. Hettinger, Jr.,   :

              Relator,                        :

v.                                            :                  No. 16AP-751

Ferrellgas, Inc.,                             :             (REGULAR CALENDAR)
and
Industrial Commission of Ohio,                :

              Respondents.                    :



                          MAGISTRATE'S DECISION

                                 Rendered on May 12, 2017



              Craigg E. Gould, for relator.

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


                                      IN MANDAMUS

       {¶ 9} Relator, Ronald L. Hettinger, Jr., has filed this original action requesting
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied his application for permanent total
disability ("PTD") compensation, and ordering the commission to find that he is entitled
to that award.
Findings of Fact:
       {¶ 10} 1. Relator sustained a work-related injury on September 23, 2008 and his
workers' compensation claim has been allowed for the following conditions:
No. 16AP-751                                                                              5

              Right shoulder sprain; cervical sprain; tear right
              supraspinatus; tear right infraspinatus; substantial
              aggravation of pre-existing adjustment disorder with
              depressed mood; chronic post surgical pain syndrome.

       {¶ 11} 2. Relator underwent shoulder surgery on April 24, 2009. No tears were
noted over the infraspinatus or supraspinatus area; however, relator did have a biceps
tenotomy, subacromial decompression, and labral repair.
       {¶ 12} 3. On November 19, 2015, relator filed his application for PTD
compensation. According to his application, relator was 43 years of age, graduated from
high school in 1991, learned welding, and was able to read, write, and perform basic math.
Relator's employment history includes truck driver, material handler, operating a glazing
machine, operating a dump truck, and some time as a warehouse supervisor.
       {¶ 13} 4. Relator submitted a report, dated September 3, 2015, from Charles E.
Adkins, C.N.P. Adkins noted that relator indicated his right shoulder pain remained at
7/10 and radiated down his right arm to his fingertips. Adkins provided physical findings
on examination noting extremely limited range of motion of the right shoulder. Adkins
also noted that relator's recommended work status was restricted duty and the effective
date for this work status was August 6, 2015.
       {¶ 14} 5. Relator submitted the November 30, 2015 Medco-14 completed by
Adkins, who opined that relator could not currently return to his former position of
employment, that he had been unable to perform that job since November 30, 2015, and
estimating that he would be able to return to the job that he held at the time he was
injured as of January 4, 2016.
       {¶ 15} 6. Steven S. Wunder, M.D., examined relator concerning the limitations
related to his allowed physical conditions. In his February 3, 2016 report, Dr. Wunder
identified the allowed conditions in relator's claim, reviewed the history of his treatment,
provided his physical findings on examination, specifically noting that the "range of
motion of the right shoulder was not valid and could not be utilized for an impairment
rating [because relator] was not cooperative with range of motion." Dr. Wunder was
unable to obtain three consecutive readings within five degrees of each other noting that
relator "generated more strength on resisted movement than with manual motor muscle
testing."
No. 16AP-751                                                                                6

       {¶ 16} In discussing relator's medical treatments, including surgery, Dr. Wunder
noted that the surgical notes indicate that there had been no evidence of rotator cuff tear,
but that an MRI taken December 10, 2009 revealed a "type 3 acromion," "moderate
degenerative changes over the AC joint," "moderate tendinosis of the supraspinatus and
infraspinatus," "mild degenerative changes of the glenohumeral joint," "an intramuscular
cyst," and "a diffuse glenoid labrum tear."
       {¶ 17} Ultimately, Dr. Wunder opined that relator's allowed physical conditions
had reached maximum medical improvement ("MMI") and that he had an 8 percent
whole person impairment, specifically noting that, relator's claim was allowed for tears in
the right supraspinatus and right infraspinatus, which surgery revealed were not present.
Dr. Wunder opined that relator had 0 percent impairment of his right shoulder when
concerning the allowed conditions, and that relator was capable of performing medium
level work.
       {¶ 18} 7. The stipulation of evidence contains three psychological reports which
were completed within two years of the filing of relator's application for PTD
compensation. In his November 21, 2013 report, Donald J. Tosi, Ph.D., interviewed
relator and conducted psychological testing.       Dr. Tosi opined that the psychological
testing revealed a strong tendency towards symptom magnification and that test results
should be interpreted with caution. In his opinion, the allowed condition of adjustment
disorder alone would not preclude relator from returning to his former position of
employment noting that he was able to function under low to moderate work stress
conditions.
       {¶ 19} 8. A psychiatric evaluation was also conducted by Mark E. Reynolds, M.D.
In his January 13, 2015 report, Dr. Reynolds identified the allowed conditions in relator's
claim and discussed the medical evidence submitted to him. Dr. Reynolds opined that
relator had bipolar disorder, noting that it was "evident the claimant has been diagnosed
and treated for Bipolar Disorder." Due solely to the allowed condition of adjustment
disorder with depressed mood, Dr. Reynolds opined that relator could return to his
former position of employment.
       {¶ 20} 9. Relator was also examined by Chad M. Sed, Ph.D. In his January 8, 2016
report, Dr. Sed identified the allowed conditions in relator's claim, discussed the history of
No. 16AP-751                                                                             7

his treatment, and found that relator had a mild impairment in activities of daily living,
and a moderate impairment in social functioning, concentration, persistence and pace, as
well as adaptation. Dr. Sed opined that relator had reached MMI and assessed a 25
percent whole person impairment. Ultimately, Dr. Sed opined that based solely on the
allowed conditions in the claim, relator was incapable of work.
       {¶ 21} 10. Relator's application for PTD compensation was heard before a staff
hearing officer ("SHO") on May 11, 2016. The SHO relied on the medical reports of Drs.
Wunder and Reynolds and found that relator was capable of performing sedentary, light,
and medium sustained remunerative employment based solely on the allowed physical
conditions in his claim and that, from a psychological standpoint, considering only the
allowed psychological conditions in his claim and not the unrelated bipolar disorder,
relator was capable of returning to his former position of employment.
       {¶ 22} Thereafter, the SHO discussed the non-medical disability factors and found
that relator's current age of 44 years was a positive vocational factor. The SHO also found
that relator was a high school graduate, had completed a two-year vocational program in
welding, was able to read, write, and perform basic math, and had used a computer at his
former positions of employment. As such, the SHO found relator's education was also a
vocational factor. The SHO found that relator's prior work experience was a neutral to
positive factor because it indicated that he had generally average aptitudes and
temperaments and that he had transferrable skills including the ability to perform
repetitive duties, work with precise tolerances, operate small and large equipment and
computers, the ability to learn, understand, and comprehend new concepts, follow
instructions, perform production work under quality standards, relate to coworkers,
supervisors, and customers.
       {¶ 23} The SHO also discussed relator's vocational efforts, noting as follows:
              Additionally, the Injured Worker was referred for
              consideration of vocational rehabilitation services on three
              occasions, but his case was closed: 1) on 10/23/2010 when
              the Injured Worker, after completing work conditioning and
              JSST, withdrew after a lackluster effort at job search
              activities; 2) on 11/12/2013 due to non-support by the
              physician of record; and 3) on 07/02/2015 due to being
              found not feasible due mainly to a suspended driver's license
No. 16AP-751                                                                  8

           (transportation issue) and a lack of effort and attitude
           toward participation in further rehabilitation services.

           ***
           As an additional and alternative basis for the denial of this
           application, the Staff Hearing Officer invokes the rule of law
           as found in the decisions of [State ex rel. Speelman v. Indus.
           Comm., 73 Ohio App.3d 757 (10th Dist.1992)], [State ex rel.
           B.F. Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525
           (1995)], [State ex rel. Bowling v. Natl. Can Corp., 77 Ohio
           St.3d 148 (1996)] and [State ex rel. Wilson v. Indus. Comm.,
           80 Ohio St.3d 250 (1997)], which indicate that an otherwise
           able Injured Worker is required to attempt any and all forms
           of vocational rehabilitation, retraining or reeducation that
           would assist in or permit a return to work. In this case, the
           Injured Worker has not made any sustained efforts at any of
           these types of vocational or educational services since he last
           worked on 04/23/2009, although he remains eligible for
           consideration even at this time. The Staff Hearing Officer
           particularly notes a pattern as found in the medical and
           vocational reports on file which indicates that the Injured
           Worker has not demonstrated or provided his best efforts in
           these areas. Specifically, noted are the following: 1) the
           06/30/2010 functional capacities evaluation indicated that
           the results were compromised as the Injured Worker
           provided a marginally reliable effort; 2) the 08/10/2010
           psychological report of Ralph Skillings, Ph.D., who found the
           Injured Worker to embellish symptoms and, even at that
           time, told Dr. Skillings that he believed himself to be
           permanently and totally disabled; 3) the 10/23/2010
           vocational rehabilitation closure which indicated that the
           Injured Worker withdrew from services prior to completion;
           4) the 11/21/2013 psychological report of Donald Tosi, Ph.D.,
           who noted a strong "fake bad" response and over
           exaggeration which limited the validity of the testing and
           demonstrated a strong tendency toward symptom
           magnification; 5) the 06/26/2015 vocational assessment
           which notes multiple non-claim related issues and the
           assessor's determination that the Injured Worker's
           perception is that his ability to work is quite poor; and 6) the
           02/03/2016 report of Dr. Wunder that indicates that he
           found range of motion testing of the right shoulder was not
           valid and the subjective complaints far exceeded the
           objective findings. Therefore, the Staff Hearing Officer finds
           the Injured Worker has not sustained his burden in this
           regard and the application is also denied on this additional
           basis.
No. 16AP-751                                                                                9


       {¶ 24} 11. Relator's request for reconsideration was denied by order of the
commission mailed June 16, 2016.
       {¶ 25} 12. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 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} 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).
       {¶ 28} In this mandamus action, relator argues that the commission abused its
discretion when it rejected the most recent psychological report prepared by Dr. Sed. In
making this argument, relator argues the case of State ex rel. Kroger Co. v. Indus. Comm.,
80 Ohio St.3d 483 (1997). In that case, Wilma C. Williamson suffered a work-related
injury and her workers' compensation claim was allowed for the psychological condition
anxiety disorder with panic attacks.      Williamson's treating physician attributed her
symptoms to post-traumatic stress disorder, panic attacks, and dysthymia. Her employer
argued that Williamson's doctor relied in part on non-allowed conditions; however, this
court found that argument to be unpersuasive for the following reasons:
              Compensable disability must arise exclusively from the
              claim's allowed conditions. Fox v. Indus. Comm. (1955), 162
              Ohio St. 569, 55 Ohio Op. 472, 125 N.E.2d 1. Ideally, the
              diagnosis contained on a disability form should mirror
No. 16AP-751                                                                         10

              exactly the condition(s) allowed by the commission and,
              where it does not, closer examination may be warranted.
              Some degree of flexibility, however, seems particularly
              important when dealing with psychiatric conditions. As the
              Washington Supreme Court observed:

              "Psychology and psychiatry are imprecise disciplines. Unlike
              the biological sciences, their methods of investigation are
              primarily subjective and most of their findings are not based
              on physically observable evidence." Tyson v. Tyson (1986),
              107 Wash.2d 72, 78, 727 P.2d 226, 229.

Id. at 489-90.

       {¶ 29} Relator relies on the above quote to support his argument here. However,
relator ignores this court's more thorough explanation, wherein this court stated:
              The reference to the nature of psychological diagnoses does
              not imply that these diagnoses are freely interchangeable.
              Clearly, major depression and paranoia are not the same
              and, in this case, all three disorders, PTSD, dysthymia, and
              anxiety disorder with panic attacks, are distinct.
              Nevertheless, we find that the multiple psychological
              diagnoses are not fatal to claimant's compensation
              application. There are three reasons for this.

              First, regardless of the label attached, Dr. Blythe consistently
              referred to the same symptoms as being the cause of
              disability. Second, many of the symptoms are common to all
              three maladies. This largely explains why Dr. Blythe has had
              difficulty categorizing the disorder. Finally, Dr. Blythe has
              always related the relevant symptomatology to the industrial
              accident.

              Cumulatively, this indicates that the debilitating symptoms
              are industrially related. This is not a situation in which
              diagnostic flexibility will allow a physician to surreptitiously
              treat a claimant for a nonindustrial ailment. The problem
              seems to rest solely on Dr. Blythe's understandable inability
              to affix a single diagnosis to symptoms that fit several
              categories. For these reasons, the commission's reliance on
              Dr. Blythe's reports is not an abuse of discretion, and the
              award of temporary total disability compensation from
              July 18, 1991 to January 1, 1994 is upheld.

Id. at 490.
No. 16AP-751                                                                               11

       {¶ 30} It is clear that this court's decision in Kroger was limited to situations where
there are overlapping symptoms which are causing the disability and those symptoms are
common to more than one diagnosis. As long as the treating physician consistently treats
the relevant symptoms, this court noted that it is appropriate to accept some degree of
flexibility when dealing with psychiatric conditions.
       {¶ 31} In the present case, Dr. Reynolds noted that relator had and was being
treated for bipolar disorder. In reaching that conclusion, Dr. Reynolds noted that relator
was taking certain medications which were prescribed for bipolar disorder. Specifically,
Risperdal and Latuda are medications which are prescribed to treat bipolar disorder. It
was Dr. Reynold's opinion that, when considering the effect of only relator's allowed
psychological condition (substantial aggravation of pre-existing adjustment disorder with
depressed mood), he had no functional limitations and could return to his former position
of employment. Dr. Reynolds gave specific reasons for his opinion and provided a
reasonable explanation. As such, it was not an abuse of discretion for the commission to
rely on his report to deny relator's application for PTD compensation.
       {¶ 32} Furthermore, to the extent that relator asserts that the commission did not
consider the report of Dr. Sed, there is no evidence in the SHO's order that would lead to
this conclusion. It must be remembered that the commission is only required to identify
the medical evidence on which it relies and is not required to cite all the evidence which it
considers. State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991). State ex rel.
Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481 (1983). As such, there was no
requirement on the SHO to discuss the report of Dr. Sed, and relator's assertion to the
contrary fails.
       {¶ 33} 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 relator's request for a writ of
mandamus.
                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA
No. 16AP-751                                                                   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).
