[Cite as State ex rel. Terry v. The Andersons, Inc., 2014-Ohio-4169.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


[State ex rel.] Roy L. Terry,                           :

                 Relator,                               :

v.                                                      :                  No. 13AP-652

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


                                             D E C I S I O N

                                   Rendered on September 23, 2014


                 Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A., and
                 Theodore A. Bowman, for relator.

                 Marshall & Melhorn, LLC, and Michael S. Scalzo, for
                 respondent The Andersons, Inc.

                 Michael DeWine, Attorney General, and Colleen C. Erdman,
                 for respondent Industrial Commission of Ohio.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION


TYACK, J.

        {¶ 1} Roy L. Terry filed this action in mandamus, seeking a writ to compel the
Industrial Commission of Ohio ("commission"), to grant his application for permanent
total disability ("PTD") compensation.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
the pertinent evidence and filed briefs.                The magistrate then issued a magistrate's
No. 13AP-652                                                                              2

decision, appended hereto, which contains detailed findings of fact and conclusions of
law. The magistrate's decision includes a recommendation that we grant a limited writ of
mandamus compelling the commission to vacate its order denying PTD compensation
and to revisit the application because of mistakes by the staff hearing officer ("SHO") who
addressed the application earlier.
       {¶ 3} Counsel for the commission has filed objections to the magistrate's decision.
Counsel for The Andersons, Inc., Roy L. Terry's former employer, has also filed objections
to the magistrate's decision. Counsel for Roy L. Terry has filed a memorandum in
response. The case is now before the court for a full, independent review.
       {¶ 4} Terry was seriously injured in 2006 when a co-worker dropped an angle
iron weighing as much as 90 lbs. on his head. He suffered brain damage. He went back to
work on restricted duty soon thereafter, but a co-worker noticed Terry's reaction time was
slowed. The Safety Department at The Andersons recommended that Terry remain off
work for awhile.
       {¶ 5} Terry had a cognitive screen followed by neuropsychological testing. He
was then cleared to return to work, while taking Celebrex for headaches.
       {¶ 6} Terry's headaches continued unabated which led to a change in medication,
a referral to a psychiatrist and the care of a multi-disciplinary team in Michigan.
       {¶ 7} The original diagnosis, in addition to a serious scalp laceration, was
concussion and post-concussion syndrome, accompanied by headaches. He had ongoing
pain and suffered from depression.
       {¶ 8} Terry was hospitalized for a time to treat his physical and emotional
difficulties. After the hospitalization, the treatment team cleared him to return to work on
a half-time basis.
       {¶ 9} In 2009, one of Terry's supervisors at The Andersons made the suggestion
that Terry might consider long-term disability. Terry was working in an office, taking
nine different medications and still suffering from headaches. Terry was depressed and
apparently spent time talking to co-workers when he and the co-workers should be have
been performing job responsibilities.
       {¶ 10} In September 2012, Terry filed an application for PTD compensation,
supported by reports from the treatment team which had been managing his case.
No. 13AP-652                                                                               3

       {¶ 11} The commission scheduled him for review with an independent medical
examiner, Sanjay S. Shah, M.D. Dr. Shah reported that Terry had reached maximum
medical improvement for his scalp laceration, cervical strain, paresthesia of his left hand
and post-concussive syndrome with headaches.           He reported that Terry still had
significant tenderness of the cervical paravertebral muscles, but rated this as only a two to
five percent impairment of the whole person.
       {¶ 12} Dr. Shah rated the paresthesia of the left hand as only increasing
impairment by one percent.
       {¶ 13} The post-concussion syndrome added 10 percent and the headaches 3
percent more. Thus, the total impairment per Dr. Shah was only 19 percent. Dr. Shah felt
Terry was physically capable of light work with restrictions.
       {¶ 14} A separate examination was done by Robert A. Muehleisen, Ph.D., at the
commission's request. Dr. Muehleisen reported a 28 percent whole person psychological
impairment. Dr. Muehleisen also reported Terry was incapable of work.
       {¶ 15} The Anderson's had Terry evaluated by Thomas E. Lieser, M.D. Dr. Lieser
placed emphasis on the fact Terry could do household chores and drive a car. Dr. Leiser
reported that Terry was capable of sustained remunerative employment due to Terry's
ability to perform such tasks.
       {¶ 16} The Anderson's also had Terry evaluated by Michael A. Murphy, Ph.D., who
saw no serious or meaningful restrictions based on the recognized psychological
conditions. Dr. Murphy felt Terry's depression was mild and stable.
       {¶ 17} The Anderson's also obtained a report from Ann Okuley, M.Ed., who felt
that Terry could return to sustained and competitive employment. Okuley felt potential
vocational accommodation needs had not been fully explored.
       {¶ 18} An SHO who reviewed the extensive information in the file discounted the
reports from the first three years of treatment.      The SHO felt Terry had not made
sufficient efforts at vocational rehabilitation since 2009. The SHO also relied upon Dr.
Lieser's report which in turn relied on Terry's ability to drive a car and do household
chores. In short, the SHO accepted all of The Anderson's reports as credible.
No. 13AP-652                                                                                4

       {¶ 19} Our magistrate accurately addresses the reasons that Terry did not do more
in the pursuit of vocational rehabilitation. Specifically, Terry's treatment team did not feel
Terry's pain was under control.
       {¶ 20} Further, our magistrate correctly addresses the SHO's view of the early
treatment and resulting reports as "stale." The magistrate also properly discussed the
report of Barbaranne Branca, M.D., Ph.D, whose report addresses the breaks in Terry's
attempts to return to work.
       {¶ 21} The commission in its objections to the magistrate's decision asserts that
the SHO's extensive discussion of a minimal job search and no vocational rehabilitation
after Terry's attempt to perform office duties at The Anderson's should be discounted and
the SHO's order should be affirmed because of the acceptance of Dr. Shah's report and the
information from experts acquired by The Anderson's. We are not persuaded that the
SHO's heavy reliance on vocational rehabilitation did not govern the SHO's final and
bottom line.   We also note that our magistrate is not recommending a full writ of
mandamus, but a limited writ of mandamus for review of the merits of the application for
PTD compensation without an inaccurate verdict of staleness. If a new SHO is persuaded
of the credibility of Dr. Lieser and the other experts retained by The Anderson's, then a
new SHO would no doubt reach the same result and deny PTD compensation. If the new
SHO is not persuaded that the ability to drive a car and do household chores
demonstrates full mental clarity, the new SHO might reject Dr. Lieser's opinion.
       {¶ 22} The commission also asserts that the early medical evidence was stale in
fact. We reject this assertion for the reasons contained in the magistrate's decision. A
recent medical report is required to put an application for PTD compensation on the table
before the commission, but does not make the earlier evidence irrelevant to the merits of
the application.
       {¶ 23} Both of the commission's objections are overruled.
       {¶ 24} The Anderson's filed a total of five objections which address the same issues
as those argued on behalf of the commission, only using more words. We believe the
magistrate's decision correctly addressed the issues also contested by The Anderson's and
discussed by the panel above.
       {¶ 25} We overrule the objections filed on behalf of The Anderson's.
No. 13AP-652                                                                             5

       {¶ 26} We, therefore, adopt the findings of fact and conclusions of law contained in
the magistrate's decision. We grant a writ of mandamus compelling the commission to
vacate its denial of Roy L. Terry's application for PTD compensation and further
compelling the commission to consider all the evidence before it before adjudicating the
merits of the application.
                                                      Objections overruled; writ granted.

                             KLATT and DORRIAN, JJ., concur.
No. 13AP-652                                                                               6



                                   APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT

[State ex rel.] Roy L. Terry,                 :

              Relator,                        :

v.                                            :                    No. 13AP-652

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




                          MAGISTRATE'S DECISION

                                  Rendered on May 12, 2014



              Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A., and
              Theodore A. Bowman, for relator.

              Marshall & Melhorn, LLC, and Michael S. Scalzo, for
              respondent The Andersons, Inc.

              Michael DeWine, Attorney General, and Colleen C. Erdman,
              for respondent Industrial Commission of Ohio.


                                    IN MANDAMUS

       {¶ 27} In this original action, relator, Roy L. Terry, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate the
May 20, 2013 order of its staff hearing officer ("SHO") that denies relator's application for
No. 13AP-652                                                                            7

permanent total disability ("PTD") compensation, and to enter an order granting the
compensation.
Findings of Fact:
       {¶ 28} 1. On October 9, 2006, relator sustained an industrial injury while
employed as a crew leader and welder in the railcar repair shop operated by respondent,
The Andersons's Inc. ("The Andersons" or "employer"), a self-insured employer under
Ohio's workers' compensation laws. On that date, a co-worker dropped a heavy angle iron
that struck relator on his head.
       {¶ 29} The industrial claim (No. 06-891101) is allowed for:
                 Scalp laceration; cervical strain; paraesthesia to left hand;
                 post-concussion syndrome with headache; mood disorder
                 characterized by major depression; cognitive disorder; sleep
                 disorder.

       {¶ 30} 2. On the date of injury, relator was treated in the emergency room at St.
Luke's Hospital, located in Maumee, Ohio. A CT scan of the head was normal. Relator
continued with follow-up treatment for a couple of weeks at the occupational health clinic
at St. Luke's.
       {¶ 31} 3. In early November 2006, relator was initially evaluated by Steven
Farrell, M.D., at the University of Toledo Medical Center.
       {¶ 32} 4. On November 7, 2006, Dr. Farrell wrote:
                 Currently, he notes that his main complaints are that of
                 being unfocussed and being cloudy or hazy at times when
                 doing cognitive tasks. He believes that his reaction time is
                 somewhat decreased. He also has some constant headaches.
                 He has no indication of nausea, vomiting, photophobia, or
                 phonophobia. He will have some occasional numbness in his
                 left arm, but denies any pain or weakness. With regard to his
                 home activities, he will have difficulty with reading at times.
                 He also has some difficulty with exertional activities such as
                 playing basketball with his son. He was sent back to work on
                 restricted duty for approximately 1 week, but his coworker
                 noticed that his reaction time was decreased and therefore,
                 the Safety Department of the Anderson's had recommended
                 that he remain off work at this point.

       {¶ 33} 5. On December 19, 2006, Dr. Farrell wrote:
No. 13AP-652                                                                        8

             Roy Lee Terry was seen in follow up today for his previous
             complaints that were consistent with post concussive
             syndrome. In the past, Mr. Terry had a traumatic brain
             injury, but had recovered moderately well. At his initial visit
             he was complaining of some headaches. We had put him on a
             restricted work schedule and requested a cognitive screen.
             The cognitive screen recommended neuropsychological
             testing. He follows up today for the results of that testing.
             Overall, he continues to do fairly well on his restricted duty
             position. He does have headaches roughly 3 times per week,
             which has been somewhat difficult for him. He does take
             over-the-counter aspirin for the headaches. He denies any
             other symptoms in any of the 4 extremities. He also denies
             any true weakness, numbness, or tingling in any of the
             extremities.

             During today's 30-minute visit, we did review the
             neuropsychological testing. He did quite well from their
             standpoint and was released from a full duty standpoint.
             They were recommending some further treatment for the
             post concussive headache.

             At this point, after extensive discussion with the patient, we
             have made a plan to return him to full unrestricted duty as of
             12/28/2006. Also, we will have him begin Celebrex 200 mg
             daily for the headaches.

      {¶ 34} 6. On March 21, 2007, relator was initially examined by neurologist Vicki
Ramsey-Williams, Ph.D., at the University of Toledo Medical Center.
      {¶ 35} 7. On July 2, 2008, Dr. Ramsey-Williams wrote:
             The patient is still working, and plans to continue working.

             ***

             IMPRESSION/PLAN: The patient is a 55-year-old man with
             a history of post concussive headache syndrome, and chronic
             daily headaches which are refractory to treatment. The
             patient tells me that he is soon to see a headache specialist in
             Michigan, with which I agree. Since his Cymbalta has only
             caused him drowsiness and no beneficial effects for his
             depression, I have asked him to discontinue Cymbalta and
             try Wellbutrin SR 150 mg daily. I also note that in a previous
             neuropsychological evaluation dated December 2006,
             suggestion was made to refer him to psychiatry. This referral
No. 13AP-652                                                                           9

             was made today for further assessment of depression and
             chronic pain.

      {¶ 36} 8. In July 2008, relator came under the care of a multi-disciplinary team of
physicians, psychologists, neuropsychologists, and physical therapist at the Michigan
Head-Pain & Neurological Institute ("MHNI"). From December 8, to December 17, 2008,
relator was hospitalized at the Chelsea Community Hospital in Chelsea, Michigan.
      {¶ 37} 9. In a five-page discharge summary, Joel R. Saper, M.D., wrote:
             The patient was hospitalized on a specialized medical unit
             for acute medical treatment. The unit is a neurologically
             oriented treatment facility for intractable head and neck
             pain. It provides 24-hour acute nursing care, daily medical
             rounds, and a team of specially trained staff members. It is
             under the direction of Dr. Joel R. Saper and is affiliated with
             the Michigan Head Pain and Neurological Institute (MHNI).

             CLINICAL STATUS AT DISCHARGE: The patient is
             moderately improved from preadmission status and is
             clinically stable.

             DISCHARGE DIAGNOSES:
             Pain Diagnoses/Other Principle Diagnoses:

             [One] Posttraumatic migraine variant intractable.
             [Two] Possible cervicogenic headache factors affecting daily
             head pain.
             [Three] Degenerative disc disease C-spine (by MRI).
             [Four] Chronic white matter infarction, right corona radiata,
             unlikely clinical significance (repeat testing is advised).

             Psychology Diagnoses:
             [One] Adjustment disorder with anxiety and depressed
             mood.
             [Two] Dyssomnia, not otherwise specified.

             Other Diagnoses:
             [One] History of hypertension, treated.
             [Two] History of hyperlipidemia and insomnia.

             ***

             PROCEDURES: During hospitalization the patient was
             provided cervical facet blocks on December 16, 2008, by Dr.
             Moheyuddin. This was moderately beneficial. The patient
No. 13AP-652                                                                      10

                had also undergone bilateral occipital nerve blocks and
                trigger point injection of the vertex scalp by Dr. Austad
                which were also beneficial procedures.

                ***

                MEDICATIONS ADMINISTERED DURING HOSP-
                ITALIZATION (A PARTIAL LIST): The patient seemed
                to have some benefit from oral Robaxin, intravenous
                Ketoralac and possibly the preventative treatment with
                Lyrica. Reglan may have also been beneficial and will
                continue as an h.s. p.r.n. medication.

                KEY CONSIDERATIONS: During hospitalization, the
                patient was able to report moderate improvement by the
                time of discharge both by the medications and the
                anesthesiological interventions.

      {¶ 38} 10. In a two-page "Psychology Discharge Report," psychologist Brent Coy,
Ph.D., wrote:
                SUMMARY: At the time of discharge, the patient reported
                significant improvement in pain control with an associated
                increase in his functional activity level. He attributed his
                improvement in pain control to changes in his medication
                regimen as well as to nerve block procedures. He will
                continue to work with MHNI for ongoing medical and
                psychological services.

                Throughout treatment, the patient was open to discussions
                concerning the relationship between pain and emotions and
                behavior. He presented with a mild to moderate level of
                depressed mood and anxiety related to his pain and negative
                impact on his quality of life. He has been proactive in coping
                with his pain and giving good effort to try to maintain
                employment despite his pain condition. Counseling sessions
                were used to provide support and reinforce cognitive
                behavioral coping skills for pain and stress management
                including cognitive restructuring, distraction, relaxation
                techniques, positive self talk, and exercise. The patient was
                active on the unit throughout treatment, attending classes
                and socializing with other patients. He was very open to
                using a variety of behavioral coping skills to help with mood
                and pain management.

                At discharge, the patient was pleased with his positive
                response to treatment. His pain was better controlled and
No. 13AP-652                                                                         11

                there was a noticeable improvement in his mood. He was
                given some time off of work by the medical team until he
                returns back to MHNI to meet with Dr. Rozen. He is
                motivated to eventually return back to work. At discharge he
                was encouraged to avoid medication overuse that could lead
                to analgesic rebound, to practice relaxation techniques and
                other behavioral coping skills on a daily basis, and to
                prioritize and pace daily activities. With regard to
                psychological follow up, the patient will meet with Dr.
                Branca and Dr. Lake at MHNI to help further reinforce
                behavioral coping skills for pain and stress management as
                well as to further explore the possibility of cognitive changes
                resulting from his head injury.

      {¶ 39} 11. By letter dated March 27, 2009, psychologist Alvin E. Lake III, Ph.D.,
and neurologist Henry C. Hooker, M.D., both MHNI employees, wrote:
                We are authorizing Roy Terry to return to work on 3/31/09
                in a transitional position in an office environment with some
                possible travel to do railroad car inspection, as outlined in
                the previous information that had been sent to us. We are
                initially recommending that he return to work for 4 hours a
                day (20 hours a week) as part of the transition, with
                scheduled consecutive hours to be determined by his work
                place. He is scheduled to see Dr. Lake for another
                consultation on April 10th, and we will re-evaluate at that
                time any increase in his work hours on the initial success of
                the transition.

                Please note that he does continue to suffer moderate to
                severe daily headaches that have not shown significant
                sustained response to treatment to date. We also remain
                concerned about any possible neurocognitive deficits from
                his injury where reportedly a 90-lb. piece of steel slipped and
                hit his hard hat in the left occipital area and then slid off and
                per his report hit his unprotected head. Consequently we
                have requested authorization for a full neurocognitive test
                battery by Dr. Branca so we can better determine any
                neurocognitive deficits resulting from the injury that may
                need to be addressed.

      {¶ 40} 12. On June 5, 2009, Dr. Lake telephoned Wayne Willis, relator's
supervisor at The Anderson's. In a two-page memorandum, Dr. Lake describes the
conversation:
No. 13AP-652                                                                 12

           Reason For Phone Call: I placed a call to Mr. Willis after
           talking with Roy at my last visit with him on 05/21/09 about
           the possibility of getting some perspective on his work
           performance. Roy also told me at that time that Mr. Willis
           had raised the possibility of long-term disability with Roy,
           and I wanted Mr. Willis' opinion on that.

           Background: Mr. Willis took position as the Anderson's
           shop manager about one-and-a-half years ago subsequent to
           Roy's injury, but while Roy was still working in his original
           position at the worksite. He also had the opportunity to go to
           the back office where Roy is currently working under
           restricted conditions and service performance.

           Patient's Functioning in Yard Subsequent to Injury,
           but Prior to Starting Treatment at MHNI: Mr. Willis
           stated that when he came on the job he was told about Roy's
           condition, was not aware of the entire situation. There were
           times that Roy complained about headaches, particularly in
           the morning. He stated Roy was required to wear hearing
           protectors because of his hearing sensitivity but complained
           about them. He stated they had to give him constant
           reminders to wear them but he would take them off at times.

           Prior to starting treatment here, Roy had approached Mr.
           Willis, telling him, "I can't take it," and was using all his
           vacation to go to the doctors' appointments. They
           subsequently made a decision to refer him on to us for
           further treatment.

           Current Functioning: He states that "now there is a
           totally different Roy—he holds his head between his legs, no
           motivation." He stated he called him into the office one day
           and was very concerned, and Roy showed him nine different
           medications. He stated Roy told him, and he surmised that
           Roy was "very depressed."

           He stated he had told Roy at one point, "I don't know what
           else to do," and Roy had suggested that "things are going off
           the deep end." He confirmed that he had raised with Roy the
           possibility of a long-term disability, but pointed out this was
           the decision for the insurance company (and his doctors).

           He states every time he sees him he will ask him how he is
           doing. He will see Roy sitting with his "head hanging" but
           saying, "I'm okay…I'm okay[.]" He appears fatigued, but not
           necessarily sleepy.
No. 13AP-652                                                                          13


              He also stated he recently had to confront Roy with the
              observation that he is a "distraction" to other people getting
              their work done—people like him, will start talking to him,
              and he pointed this out to Roy who agreed and expressed
              understanding. He states he just seems worn out.

              ***

              Actions Taken: I am forwarding this note to Roy's
              neurologist here, Dr. Hooker, and Dr. Branca, our
              neuropsychologist who will be completing neurocognitive
              testing in July, and Roy's physical therapist, Ellen Lecureux,
              PT. We will discuss this case further as a group.

       {¶ 41} 13. On July 20 and 21, 2009, relator was evaluated by psychiatrist
Barbaranne Branca, Ph.D., who is the neuropsychology supervisor at MHNI. On page 16
of her 17-page narrative report, under "Treatment Recommendations," Dr. Branca wrote:
              TREATMENT RECOMMENDATIONS:

              ***

              [Three] VOCATIONAL EVALUATION AND ASSESSMENT:
              Deferred. It is recommended that this be deferred until he
              has adequate pain management and adequate management
              of affective disturbance. After this is obtained and upon
              recommendation of his MHNI multidisciplinary team, it is
              recommended that he be referred for vocational evaluation
              and assessment to Robert Ancell, Ph.D. & Associates.

       {¶ 42} 14. In a three-page letter or report dated September 5, 2012, Drs. Lake and
James R. Weintrab, D.O., jointly state:
              This letter is in support of Mr. Terry's Application for
              Compensation for Permanent Total Disability. As noted in
              the Application, we believe that Mr. Terry's physical and
              mental impairments resulting from the conditions in his
              claims have permanently precluded him from returning to
              his former position of employment, that he is permanently
              and totally disabled as a result of these injuries. Mr. Terry's
              case was also discussed in a multidisciplinary meeting on
              6/8/12 with our Director, Joel R. Saper, M.D., F.A.C.P.,
              F.A.A.N., and clinical staff who have known Mr. Terry over
              the past several years, and it was our consensus opinion that
              he is permanently and totally disabled.
No. 13AP-652                                                                14


           Mr. Terry was initially evaluated at our center on 7/24/08
           for treatment of symptoms dating from a work-related injury
           on 10/9/06, where an approximately 50-60 lb. piece of angle
           iron fell from 12 feet and hit the patient in the back of the
           head. He was wearing a hard hat, in a squatting position, and
           the angle iron knocked the hard hat off, leaving him with a
           permanent scar. He has consistently attended sessions. An
           effort to assist him in returning to work in a part-time
           sedentary position in mid-2009 was unsuccessful in
           increasing productivity despite his consistent attendance. He
           was hospitalized on our inpatient Head Pain Treatment Unit
           from 12/8 to 12/17/08 and discharged moderately improved,
           which included intensive intravenous medications as well as
           nerve blocks.

           Based on our communications with his shop manager when
           we had attempted to return him to work, he had been an
           excellent worker prior to this injury. He had made an effort
           to continue working at his former position immediately after
           the injury but had other employees cover for him at times
           when he would take breaks, and his headaches became
           increasingly poorly controlled. A conversation with the shop
           manager on 6/5/09 indicated that Mr. Terry had become
           totally different and was not functioning adequately even in a
           sedentary position.

           He has received multiple medications. As of his appointment
           at our center today, his treatments for pain and related mood
           disturbance include Lyrica 200 mg. 3 times a day, Celexa 40
           mg. in the morning, Robaxin 1500 mg. 3 times a day,
           Sinequan 50 mg. at 7:00 p.m. with an additional 75 mg. at
           bedtime. He also takes melatonin 3-6 mg. at bedtime.
           Medications he takes on an as-needed basis include Vistaril
           25 mg. 3 times a day (3 times per week), Frova 2.5 mg. 3 per
           day (2 times a week), and Anaprox 550 mg. 3 per day (3
           times per week). As noted on page 2 of the Application for
           Compensation for Permanent Total Disability, Roy notes that
           he has received "many types of nerve blocks," but he was
           unsure about the dates or types of blocks. He has not shown
           sustained benefit from any of the following nerve blocks, and
           we have elected to pursue a primary medication program.

           ***

           Mr. Terry also completed a Comprehensive Neuro-
           psychological Evaluation on 7/20 and 7/21/09 at our center
No. 13AP-652                                                                        15

              by Barbaranne Branca, Ph.D., ABN. A copy of the 17-page
              report is enclosed. It was Dr. Branca's impression (page 12)
              that his performance was "mildly abnormal" but that it was
              "a valid profile, demonstrating good effort, despite the
              presence of pain and increasing pain levels during testing.
              She had recommended that we defer vocational evaluation
              and rehabilitation efforts until his pain had come under
              better control, which has unfortunately never happened.

              We believe Mr. Terry has reached maximum medical
              improvement but does benefit from continuing medical
              management of his headache problem and cognitive-
              behavioral psychotherapy.

       {¶ 43} 15. On September 13, 2012, relator filed an application for PTD
compensation. In support, relator submitted the September 5, 2012 joint report of Drs.
Lake and Weintrab.
       {¶ 44} On December 5, 2012, at the commission's request, relator was examined by
Sanjay S. Shah, M.D. In his six-page narrative report, Dr. Shah states:
              [One] Has the injured worker reached maximum
              medical improvement with regards to each of the
              specified allowed conditions?

              In regards to the specified condition of scalp laceration,
              cervical strain, paresthesia of the left hand, and post-
              concussive syndrome with headaches, he has reached
              maximum medical improvement for each of these allowed
              conditions as he has been seen by multiple physicians and
              has had multiple treatments done, and he is now being
              treated with medical management.

              [Two] Based on the AMA Guides, Fifth Edition with
              reference to the Industrial Commission Medical
              Examination Manual, provide the estimated
              percentage of whole person impairment arising
              from each of the allowed conditions.

              A. For allowed condition of scalp laceration: This is resolved.
              There currently [is] no residual abnormalities. As a result, he
              has 0% impairment for the allowed condition of scalp
              laceration.

              B. For cervical strain: He continues with significant
              tenderness of the cervical paravertebral muscles with some
No. 13AP-652                                                                16

           noted guarding and spasms and loss of range of motion. He
           also notes non-verifiable radicular complaints with radiation
           to the left upper extremity. As a result, using Table 15.5,
           criteria for rating impairment due to cervical disorders, he
           falls into DRE cervical category 2 or 5% whole person
           impairment for the allowed condition of cervical strain.

           C. For paresthesia of the left hand: He continues with some
           abnormal sensory deficits in the posterior left hand. It is
           difficult to assess whether this is related to any specific
           peripheral nerve or root. However, considering that he does
           have decrease[d] sensation of the left posterior hand, I would
           grade this using Table 16.10 at a grade 4 with distorted
           superficial tactile sensibility with or without minimal
           abnormal sensation or pain that is forgotten during activity
           and would use a 5% maximum upper extremity impairment
           considering a possible C7 middle trunk or radial sensory
           abnormality both of which would have a maximum of 5%
           sensory deficit and therefore, since he has a maximum 5%
           impairment with a grade 4 deficit (a 1-25% deficit), he would
           have a 1% impairment for the paresthesia of the left hand.

           D. For post-concussive syndrome with headaches, I would us
           Table 13.5 and 13.6 on page 320, as this would be related to
           his traumatic brain injury/post-concussive syndrome. He is
           noted to have slight forgetfulness. He is fully oriented. He
           has some difficulty with problem solving. He has slight
           impairment in community affairs. He has some impairment
           in home and hobbies. He is fully capable of self-care. As a
           result, he would fall into CDR 0.5 or Class 1 impairment. As a
           result, he would have a 10% impairment of the whole person
           for post-concussive syndrome. I would also add 3%
           impairment due to continued headaches.

           E. As a result, using the combined value chart, he would have
           0% for scalp laceration, 5% for cervical strain, 1% for
           paresthesia of the left hand, and 10% for post-concussive
           syndrome or a 16% whole person impairment for the allowed
           conditions and I would then add a 3% for continued
           headaches.

           As a result, it is my opinion that the combined whole person
           impairment for the allowed conditions in this claim is 19%.

           [Three] * * * Considering the claimant's allowed conditions,
           he would be able to do light work with added limitations of
           avoidance of overhead activities due to his neck pain. Also,
No. 13AP-652                                                                             17

             due to memory difficulties and continued headaches, he
             should avoid activities that require increased safety and
             balance which would include machinery, ladders, or working
             at high levels, such as scaffolding, etc.

(Emphasis sic.)

      {¶ 45} 16. On December 10, 2012, Dr. Shah completed a Physical Strength Rating
form. The form asks the physician to indicate by his mark the type of work, if any, that
the claimant can do. Under the commission's definition of light work, in the space
provided, Dr. Shah wrote in his own hand the further limitations regarding light work.
      {¶ 46} 17. On December 10, 2012, at the commission's request, relator was
examined by psychologist Robert A. Muehleisen, Ph.D.        In his seven-page narrative
report, Dr. Muehleisen opines:
             [One] This examiner's opinion is that Mr. Terry remains at
             maximum medical improvement with respect to his allowed
             mood disorder, cognitive disorder, and sleep disorder.

             [Two] Based on AMA Guides, Second and Fifth Edition, and
             with reference to the Industrial Commission Medical
             Examination Manual, Mr. Terry exhibits 28% whole person
             psychological impairment arising the combination of his
             allowed mood disorder characterized by major depressive,
             cognitive disorder, and sleep disorder.

(Emphasis sic.)

      {¶ 47} 18. On December 18, 2012, Dr. Muehleisen completed a form captioned
"Occupational Activity Assessment Mental & Behavioral Examination." On the form, Dr.
Muehleisen indicated by his mark: "This Injured Worker is incapable of work."
      {¶ 48} 19. On November 5, 2012, at the employer's request, relator was examined
by Thomas E. Lieser, M.D. In his nine-page narrative report, Dr. Lieser opines:
             Discussion:
             The current medication regimen does not appear to reflect
             the recommendations previously made to discontinue the
             Lyrica, which is known to have significant sedating side
             effects, although the claimant appears to have been placed
             on a tapering regimen for the Lyrica.

             Clearly the claimant is capable of performing chores about
             the house and driving his car; functions which are
No. 13AP-652                                                                        18

             moderately demanding in both attention, as well as
             spatial/visual coordination. In other words, he would be
             clearly capable of maintaining sustained remunerative
             employment in light of his ability to accomplish these tasks,
             and in light of the clinical exam findings noted today.

             The allowed conditions of scalp laceration, cervical strain,
             and paresthesias to the left hand are resolved. The claimant
             continues to manage headache, which is currently stable
             under his current medication regimen, and a mood disorder
             characterized by depression, cognitive disorder, and sleep
             disorder. These are all manageable and do not prevent work
             activity. This is also supported by several evaluations.

             Conclusions:
             Based on today's evaluation and within a reasonable degree
             of medical certainty, I would offer the following:

             [One] Based on the allowed conditions in this claim, Mr. Roy
             Terry is capable of engaging in sustained remunerative
             employment. There is an absence of peripheral neurologic
             deficit. He has had multiple imaging studies showing no
             evidence of acute injury to the cervical spine or the brain as a
             result of the 10/9/06 incident, and he is capable of engaging
             in interactive conversation. His examination does reveal
             modest deficits in cervical spine motion, however, his
             reported activity level is clearly consistent with the ability to
             perform sustained remunerative employment.

             [Two] Work activity ought to be limited to avoidance of
             overhead activity.

      {¶ 49} 20. On November 12, 2012, at the employer's request, relator was examined
by psychologist Michael A. Murphy, Ph.D. In his eight-page narrative report, Dr. Murphy
opines:
             I see no serious or meaningful restrictions based on his
             recognized DSM-IV conditions. The Injured Worker is of
             average intelligence. Objective medical testing found no
             clinical evidence of brain abnormality. His residual
             functioning is mild. The AMA guides to the Evaluation of
             Permanent Impairment, 5th Edition, defines mild
             impairment as that of an individual who is capable of most
             meaningful activities and functioning. His depression is
             stable and mild.
No. 13AP-652                                                                           19

             The Injured Worker is capable of employment in a normal
             climate of stress, adequate supervision, and non-novel work
             activity. He is not permanently and totally disabled as a
             result of his recognized DSM-IV conditions.

             The Injured Worker's disturbance of sleep is symptomatic of
             depression and/or other medical conditions. Recall, he is
             diagnosed with hypertension and does report a bilateral
             carpal tunnel BWC claim (1991).

      {¶ 50} 21. Earlier, on February 5, 2012, at the employer's request, vocational
expert Ann Okuley, M.Ed., issued an eight-page narrative report in which she opines:
             In my professional opinion and based on the medical
             documentation provided, Mr. Terry has the potential to
             return to sustained and competitive employment with the
             appropriate vocational rehabilitation planning and support.
             Mr. Terry's current mental and physical limitations are not
             clearly defined throughout the file due to various opinions
             from     various    professionals.    Potential  vocational
             accommodation needs do not appear to have been fully
             explored.

      {¶ 51} 22. Following a May 20, 2013 hearing, an SHO issued an order denying
relator's PTD application. The SHO's order explains:
             The Staff Hearing Officer reviewed and considered all
             medical evidence within the time frames of the Ohio
             Administrative Code 4121-3-34 as to timelines for
             submission of evidence relevant to permanent and total
             disability. The Staff Hearing Officer finds much of the
             evidence relied upon by the Injured Worker is from 2009
             which is deemed stale and outside the regulatory
             requirements for reliance upon in the matter of permanent
             and total disability. Specifically, the report of Dr. Branca.
             This is a multi-disciplinary exam. The Injured Worker
             alleges that Dr. Lake, Ph.D., and Dr. Weintraub [sic], D.O.,
             indicate that this report indicated that they should defer
             vocational rehabilitation until the Injured Worker's pain
             comes under better control and Dr. Lake and Dr. Weintraub
             [sic] indicates that never happened. The Staff Hearing
             Officer did not find that statement in Dr. Branca's report.
             However, if it is present, that would be the Injured Worker's
             condition as of 2009. The opinion with regard to his ability
             to participate in vocational rehabilitation from 2009 is not
             an indication of his condition or ability to participate in
             Vocational rehabilitation in 2013.
No. 13AP-652                                                                20


           The Injured Worker made a significant attempt to return to
           his former position of employment and light duty work with
           this Employer in 2009. However, after his departure from
           work in the light duty capacity with this Employer, the
           Injured Worker pursued no other vocational rehabilitation
           options and performed no other types of job search. As a
           result, the Staff Hearing Officer finds that the Injured
           Worker has not met the criteria under Speelman v. Industrial
           Commission 73 Ohio App.3d 757 (1992) or State ex rel.
           Bowling v. National Can Corporation 77 Ohio St.3d 148
           (1996). The Injured Worker has not made an attempt at
           vocational rehabilitation and has not looked for any other
           type of light duty work within his restrictions since 2009. As
           a result of the case law and the court findings in Speelman v.
           Industrial Commission, [State ex rel.] Bowling v. National
           Can Corporation, B.F. Goodrich Company v. Industrial
           Commission 73 Ohio St.3d 525 (1995), Wilson v. Industrial
           Commission 80 Ohio St.3d 250 (1997), and Cunningham v.
           Industrial Commission 91 Ohio St.3d 261 (2001), the Injured
           Worker is not eligible for permanent and total disability
           benefits. Further, in State ex rel. Lawson v. Industrial
           Commission Tenth District, No. 09AP-1190 2010-Ohio-460,
           the Court held that an attempt to return to work alone is
           insufficient for the Injured Worker to carry his burden of
           establishing a preclusion of vocational rehabilitation.

           The Staff Hearing Officer finds this application is denied on
           the merits. The Staff Hearing Officer finds the pre-
           ponderance of the medical evidence establishes that the
           Injured Worker is not permanently and totally disabled nor
           precluded from performing sustained remunerative work
           activity. Recent notes of which indicate that the Injured
           Worker's headache condition has in fact improved. This
           includes the note of 09/05/2012 that indicates "he appeared
           in reasonably good spirits, and his headache control was
           stable with current medications."

           The Staff Hearing Officer relies upon the report and opinion
           of Dr. [Lieser], M.D., dated 11/05/2012. Dr. [Lieser] notes
           that the Injured Worker is capable of performing chores
           around the house, and driving his car, both functions which
           are moderately demanding in both attention, as well as,
           spatial/visual coordination. In other words, he would be
           clearly capable of maintaining sustained remunerative
           employment in light of his ability to accomplish these tasks,
           and in light of Dr. [Lieser's] clinical exam findings. Dr.
No. 13AP-652                                                                21

           [Lieser] notes that the scalp laceration, cervical strain, and
           paresthesia to the left hand are resolved. The Injured Worker
           continues to manage headaches, which are currently stable
           under the current medication regime and a mood disorder
           characterized by depression, cognitive disorder and sleep
           disorder. Dr. [Lieser] opines that these are all manageable
           and do not prevent work activity. Dr. [Lieser] finds that this
           is also supported by several of the other evaluations. Dr.
           [Lieser] finds an absence of peripheral neurologic deficit.
           The multiple imaging studies show no evidence of acute
           injury to the cervical spine or brain as a result of the work
           related injury. He is capable of engaging and interacting in
           conversation. His exam revealed modest deficits in cervical
           spine motion, however, his reported activity level is clearly
           consistent with an ability to perform sustained remunerative
           work activity. Dr. [Lieser] notes that the work activity ought
           to be limited to avoidance of overhead activity.

           The Staff Hearing Officer also relies upon the report and
           opinion of Dr. Shah, dated 12/05/2012. Dr. Shah took a full
           and complete history of the Injured Worker, reviewed
           evidence on file, and performed a physical examination. As a
           result of the above, Dr. Shah opines that the Injured Worker
           has reached a level of maximum medical improvement with
           regard to the allowed physical conditions in the claim. Dr.
           Shah opines that related solely to the allowed physical
           conditions in the claim the Injured Worker is capable of
           performing light work and limitation of overhead activity
           due to neck pain. Due to memory difficulties and headaches,
           he should avoid activities that require increased safety and
           balance which would include machinery, ladders, or working
           at high levels such as scaffolding. Dr. Shah opines that the
           Injured Worker is physically capable of performing sustained
           remunerative employment at the light duty level.

           This order is also based upon the report and opinion of Dr.
           Murphy, Ph.D. Dr. Murphy took a full and complete history
           of the Injured Worker, reviewed psychology evidence on file
           and performed a mental status evaluation. Dr. Murphy finds
           that the residual functional (impairments) related to the
           allowed psychological conditions are: … activities of daily
           living, mild; social interaction, mild; adaptation, mild;
           concentration, persistence and pace, mild. Dr. Murphy notes
           several unrelated stressors that impact the Injured Worker's
           condition. Dr. Murphy notes that the Injured Worker does
           report mildly reduced short-term memory; however, he is
           heavily medicated. Dr. Murphy opines that the Injured
No. 13AP-652                                                                    22

           Worker's cognitive disorder is mild and negligible at best. He
           is not precluded from employment due to his cognitive
           disorder. Dr. Murphy goes on to opine that as to the
           depressive disorder it is not work prohibited. The Injured
           Worker is capable of repetitive well-structured work. Dr.
           Murphy opines that the Injured Worker's residual functional
           impairment is mild. The AMA Guide for Evaluation of
           Permanent Partial Impairment, 5th Edition, defines mild
           impairment as that of an individual who is capable of most
           meaningful activities and functioning. The Injured Worker's
           depression is stable and mild. Dr. Murphy goes on to opine
           that the Injured Worker is capable of employment in a
           normal climate of stress, adequate supervision, and non-
           overhead work activity. He is not permanently and totally
           disabled on the basis of the allowed psychological conditions
           in the claim.

           The Injured Worker is a 59 year old male whose date of birth
           is 06/23/1953. The Injured Worker is receiving social
           security disability benefits in the approximate amount of
           $1329.00 per month. The injured worker is a high school
           graduate and is capable of reading, writing and performing
           basic math. The Injured Worker has worked as a railroad
           man, food delivery driver, car man, sheet metal apprentice,
           warehouse manager, press operator, laborer, and railcar
           crew leader. The Injured Worker's position as a railcar crew
           leader included significant supervisory activities and resulted
           in transferrable skills from previous employment to other
           areas of employment.

           The Staff Hearing Officer relies upon the report of Dr. [sic]
           Okuley, MEd. dated 02/05/2012. Dr. Okuley, MEd. is a
           vocational assessor and opines that the Injured Worker
           would have benefited from being able to attend vocational
           rehabilitation in person in order to obtain objective data
           regarding his interests, skills, abilities, and overall vocational
           functioning and explore options of returning to work of some
           kind. Dr. Okuley considered the medical evidence of
           limitations on file, as well as, the Injured Worker's vocational
           factors and finds that the Injured [W]orker has the potential
           to return to sustained and competitive employment with the
           appropriate vocational rehabilitation, planning and support.
           Dr. [sic] Okuley makes several recommendations with regard
           to the Injured Worker's return to the workforce and outlines
           a plan for same.
No. 13AP-652                                                                            23

             The Staff Hearing Officer finds that, based upon the
             physicians and psychologists identified in the body of this
             order, the Injured Worker is capable of performing activities
             of vocational rehabilitation, and sustained remunerative
             employment. The Injured Worker has neither availed himself
             at vocational rehabilitation nor has he performed any type of
             job search since he left light duty work in 2009. The Staff
             Hearing Officer finds that the Injured Worker's condition
             has improved since that time and he has not sought
             vocational rehabilitation or returned to the work force.

             The Staff Hearing Officer finds the Injured Worker is not an
             older individual at the age of 59. His age is not a barrier to
             re-employment. Further, age alone is not a determinative
             factor in permanent and total disability, see [State ex rel.
             DeZarn v. Indus. Comm., 74 Ohio St.3d 461 (1996)] and
             [State ex rel. Moss v. Indus. Comm., 75 Ohio St.3d 414
             (1996)]. The Injured Worker has a high school education and
             is capable of reading, writing and performing basic math.
             These are positive vocational factors. The Injured Worker
             has also developed transferrable skills from his former
             positions of employment that could be used in other areas of
             employment. This is also a positive vocational factor.

             Therefore, based upon all of the above, the Staff Hearing
             Officer finds that the Injured Worker is not permanently and
             totally disabled, nor precluded from performing sustained
             remunerative work activity. Therefore, the IC-2 Application
             filed on 09/13/2012 is denied.

      {¶ 52} 23. On July 29, 2013, relator, Roy L. Terry, filed this mandamus action.
Conclusions of Law:
      {¶ 53} It is the magistrate's decision that this court issue a writ of mandamus, as
more fully explained below.
           Basic Law: Failure to Undergo Vocational Rehabilitation
      {¶ 54} The Supreme Court of Ohio has repeatedly addressed the obligation of a
PTD claimant to undergo opportunities for rehabilitation. 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); State ex rel. Wood v. Indus. Comm., 78 Ohio St.3d 414 (1997);
State ex rel. Wilson v. Indus. Comm., 80 Ohio St.3d 250 (1997); State ex rel.
Cunningham v. Indus. Comm., 91 Ohio St.3d 261 (2001).
No. 13AP-652                                                                           24

       {¶ 55} In B.F. Goodrich, the court states:
                 [E]vidence of record indicates that claimant did not
                 participate in rehabilitation services offered by the
                 commission. There is no indication that claimant's lack of
                 participation was based on a physician's medical advice, or
                 on a vocational evaluation that concluded that she was
                 intellectually, psychologically or emotionally incapable of
                 retraining. Absent such evidence, the implication is that
                 claimant simply chose not to avail herself of the opportunity
                 to receive retraining and potential re-employment.

                 The commission does not, nor should it, have the authority
                 to force a claimant to participate in rehabilitation services.
                 However, we are disturbed by the prospect that claimant
                 may have simply decided to forgo retraining opportunities
                 that could enhance re-employment opportunities. An award
                 of permanent total disability compensation should be
                 reserved for the most severely disabled workers and should
                 be allowed only when there is no possibility for re-
                 employment.

Id. at 529.

       {¶ 56} In Wilson, the court 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
                 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 253-54.

                                     Alternative Bases?
       {¶ 57} Preliminarily, the magistrate addresses the commission's assertion here that
the SHO's order presents alternative bases for denial of the PTD application. If it can be
said that relator has challenged only one of two bases, he cannot show entitlement to a
No. 13AP-652                                                                             25

writ of mandamus if the basis he has failed to challenge supports the commission's
decision.
         {¶ 58} Here, even if it can be said that the SHO's order endeavors to submit
alternative bases for the decision, the SHO has incorporated the first basis into the second
basis. Therefore, relator's challenge to the first basis necessarily challenges the second
basis.
         {¶ 59} In order are some observations regarding the SHO's order.
         {¶ 60} The SHO's order begins with a two-paragraph determination that relator "is
not eligible" for PTD compensation because it was found that relator failed to pursue
vocational rehabilitation subsequent to his 2009 attempt to return to work at The
Andersons.      This two-paragraph determination that relator is ineligible for PTD
compensation precedes the SHO's statement "this application is denied on the merits."
Following the statement that the SHO is proceeding "on the merits," the paragraphs that
follow determine residual functional capacity by specific reliance upon the reports of Drs.
Lieser, Shah, and Murphy.       Presumably, the report of Dr. Muehleisen was rejected
because the report is not mentioned.
         {¶ 61} Following a determination of residual functional capacity based upon the
reports of Drs. Lieser, Shah, and Murphy, the order addresses the non-medical disability
factors in the next four paragraphs. That is, the order discusses age, education, and work
history, and states reliance upon the February 5, 2012 Okuley vocational report. In the
third of the four paragraphs, the order revisits the earlier determination that relator has
failed to pursue vocational rehabilitation or a job search since he left light-duty work in
2009. That is, in discussing the non-medical factors, the order appears to reconnect with
the earlier determination that relator is ineligible for PTD compensation because he is
found to have failed to pursue vocational rehabilitation after 2009.
         {¶ 62} Analysis of the SHO's order is aided by reference to the commission's
guidelines for adjudication of PTD applications found at Ohio Adm.Code 4121-3-34(D).
         {¶ 63} Ohio Adm.Code 4121-3-34(D)(1)(d) provides:
               If, after hearing, the adjudicator finds that the injured
               worker voluntarily removed himself or herself from the work
               force, the injured worker shall be found not to be
               permanently and totally disabled. If evidence of voluntary
               removal or retirement is brought into issue, the adjudicator
No. 13AP-652                                                                          26

             shall consider evidence that is submitted of the injured
             worker's medical condition at or near the time of
             removal/retirement.

      {¶ 64} 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).

             (c) If, after hearing and review of relevant vocational
             evidence and non-medical disability factors, as described in
             paragraph (D)(2)(b) of this rule the adjudicator finds that
             the injured worker can return to sustained remunerative
             employment by using past employment skills or those skills
             which may be reasonably developed through retraining or
             through rehabilitation, the injured worker shall be found not
             to be permanently and totally disabled.

      {¶ 65} A failure to undergo vocational rehabilitation is not an independent basis
for denial of a PTD application under Ohio Adm.Code 4121-3-34(D)'s guidelines. Rather,
an alleged failure to undergo vocational rehabilitation can be a non-medical factor under
Ohio Adm.Code 4121-3-34(D)(2)(b) and (c).
No. 13AP-652                                                                          27

       {¶ 66} However, voluntary removal from the workforce under Ohio Adm.Code
4121-3-34(D)(1)(d) is an independent basis for denial of a PTD application. Here, it can
perhaps be argued that the SHO's two-paragraph determination that relator is ineligible
for PTD compensation because he was found to have failed to pursue vocational
rehabilitation or to have searched for work has similarities to a voluntary removal from
the workforce. But the order does not purport to find a voluntary removal from the
workforce and cannot be viewed as such.
       {¶ 67} Consequently, we are left with a commission determination that improperly
purports to present a failure to pursue vocational rehabilitation as an independent basis
for denial of the PTD application.
       {¶ 68} Given the above analysis, the magistrate concludes that the SHO's order
must be viewed as presenting only one basis for denial of the PTD application and that
basis is found at Ohio Adm.Code 4121-3-34(D)(2)(b) and (c), which requires review of the
non-medical factors.
                                     Stale Evidence?
       {¶ 69} The commission has the exclusive authority to evaluate evidentiary weight
and credibility. State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987). In
explaining its decisions, the commission need not set forth the reasons for finding one
report more persuasive than another. State ex rel. Bell v. Indus. Comm., 72 Ohio St.3d
575 (1995). However, where the commission has set forth an explanation for rejecting
medical evidence, the explanation must be reasonable and lawful. State ex rel. Eberhardt
v. Flxible Corp., 70 Ohio St.3d 649 (1994). The commission is prohibited from arbitrarily
rejecting competent medical proof. Id.
       {¶ 70} The SHO found:
              [M]uch of the evidence relied upon by the Injured Worker is
              from 2009 which is deemed stale and outside the regulatory
              requirements for reliance upon in the matter of permanent
              and total disability. Specifically, the report of Dr. Branca.

       {¶ 71} Presumably, the "regulatory requirements" of which the SHO refers is found
at Ohio Adm.Code 4121-3-34(C), which is captioned "Processing of applications for
permanent total disability." Thereunder, Ohio Adm.Code 4121-3-34(C) provides:
No. 13AP-652                                                                           28

             (1) Each application for permanent total disability shall
             identify, if already on file, or be accompanied by medical
             evidence from a physician, or a psychologist or a psychiatric
             specialist in a claim that has been allowed for a psychiatric or
             psychological condition, that supports an application for
             permanent total disability compensation. The medical
             examination upon which the report is based must be
             performed within twenty-four months prior to the date of
             filing of the application for permanent total disability
             compensation. * * * If an application for permanent total
             disability compensation is filed that does not meet the filing
             requirements of this rule, or if proper medical evidence is not
             identified within the claim file, the application shall be
             dismissed without hearing. Where it is determined at the
             time the application for permanent total disability
             compensation is filed that the claim file contains the
             required medical evidence, the application for permanent
             total disability compensation shall be adjudicated on its
             merits as provided in this rule absent withdrawal of the
             application for permanent total disability compensation.

             ***

             (4)

             (a) The injured worker shall ensure that copies of medical
             records, information, and reports that the injured worker
             intends to introduce and rely on that are relevant to the
             adjudication of the application for permanent total disability
             compensation from physicians who treated or consulted the
             injured worker that may or may not have been previously
             filed in the workers' compensation claim files, are contained
             within the file at the time of filing an application for
             permanent total disability.

      {¶ 72} The SHO's order strongly suggests that the July 2009 report of Dr. Branca
and the September 5, 2012 joint report of Drs. Lake and Weintrab that relies upon Dr.
Branca's report are stale (and therefore rejected) because Dr. Branca's report is premised
upon her evaluation performed more than 24 months prior to the date of the filing of the
PTD application.
      {¶ 73} Rejection of those reports by applying the 24-month rule at Ohio Adm.Code
4121-3-34(C)(1), was an abuse of discretion.
No. 13AP-652                                                                            29

       {¶ 74} To begin, Ohio Adm.Code 4121-3-34(C)(1) sets forth a minimum threshold
filing requirement to initiate the processing of a PTD application. Clearly, the September
5, 2012 joint report of Drs. Lake and Weintrab satisfies the regulatory filing requirement
because relator was seen by Drs. Lake and Weintrab on September 5, 2012 and the PTD
application was filed just eight days later on September 13, 2012.
       {¶ 75} Ohio Adm.Code 4121-3-34(C)(1) is not a rule of evidence. By its own terms,
the rule does not prohibit the PTD applicant from submitting other medical evidence
predating by more than 24 months the filing of the PTD application as long as the
threshold filing requirement is met.
       {¶ 76} Moreover, Ohio Adm.Code 4121-3-34(C)(4) permits the injured worker to
file "medical records, information, and reports that the injured worker intends to
introduce and rely on that are relevant to the adjudication" of the PTD application.
Unlike Ohio Adm.Code 4121-3-34(C)(1), Ohio Adm.Code 4121-3-34(C)(4)(a) sets no time
limitation on the evidence the injured worker intends to introduce and rely upon as long
as the evidence is "relevant."
       {¶ 77} Clearly, the SHO misapplied Ohio Adm.Code 4121-3-34(C)(1)'s minimum
threshold filing requirement to reject relevant medical evidence that the commission's
rules permit relator to file and rely upon.
       {¶ 78} Because the SHO also invoked staleness into her decision, State ex rel. Hiles
v. Netcare Corp., 76 Ohio St.3d 404 (1996), is instructive. The court states:
              A finding of evidentiary staleness should always be
              approached cautiously. More relevant than the time at which
              a report was rendered are the content of the report and the
              question at issue. For example, where the issue is maximum
              medical improvement, a report that finds a permanent
              impairment is rarely rendered invalid by the passage of time.
              Conversely, the changeable nature of a claimant's ability to
              work is often affected by time.

Id. at 407.

       {¶ 79} Clearly, Dr. Branca's report was not stale as to the question of whether
relator can be excused from the pursuit of vocational rehabilitation following his
"significant attempt" to return to work in 2009. Relator's PTD application was filed some
No. 13AP-652                                                                             30

three years after relator last worked. Dr. Branca's report addresses the advisability of
vocational rehabilitation during that period.
         {¶ 80} Dr. Branca recommended deferral of "vocational evaluation and assessment
* * * until he has adequate pain management and adequate management of affective
disturbance."     That Dr. Branca herself did not address whether adequate pain
management or adequate management of affective disturbance was achieved during the
three-year period prior to the filing of the PTD application does not render her July 2009
report stale.
         {¶ 81} In short, the SHO abused her discretion in finding Dr. Branca's report to be
stale.
         {¶ 82} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate the May 20, 2013 order of its SHO that
denies relator's PTD application, and, in a manner consistent with this magistrate's
decision, enter an order that adjudicates the PTD application.


                                           /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).
