[Cite as State ex rel. Martin v. Springfield Twp., 2014-Ohio-1186.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio ex rel.                                    :
James M. Martin,
                                                         :
                 Relator,
                                                         :               No. 13AP-305
v.
                                                         :            (REGULAR CALENDAR)
Springfield Township and
Industrial Commission of                                 :
Ohio,
                                                         :
                 Respondents.
                                                         :



                                             D E C I S I O N

                                      Rendered on March 25, 2014


                 Law Office of James A. Whittaker, LLC, Laura I. Murphy
                 and James A. Whittaker, for relator.

                 Michael DeWine, Attorney General, and Naveen v.
                 Ramprasad, for respondent Industrial Commission of Ohio.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, James M. Martin, commenced this original action in mandamus

seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),

to vacate its order denying relator permanent total disability ("PTD") compensation, and

to enter an order granting said compensation.
No. 13AP-305                                                                              2

       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of

Appeals, we referred this matter to a magistrate who issued a decision including findings

of fact and conclusions of law, which is appended hereto.    The magistrate found that the

commission abused its discretion and misapplied Ohio Adm.Code 4121-3-34(D)(1)(f)

when it denied relator's application for PTD compensation solely because relator had

other allowed claims that had not reached maximum medical improvement ("MMI").

Relying upon this court's decision in State ex rel. Ferrell v. Indus. Comm., 10th Dist. No.

04AP-948, 2005-Ohio-3100, the magistrate determined that relator is entitled to have his

PTD application (which is based solely on an allowed psychological claim) adjudicated

even though relator also has allowed physical conditions that undisputedly have not

reached MMI and are the basis of his current receipt of TTD compensation. Therefore,

the magistrate has recommended that we grant a limited writ ordering the commission to

vacate its March 5, 2013 order that denies relator's PTD application, and to enter an order

consistent with the magistrate's decision that either grants or denies the PTD application.

       {¶ 3} The commission has filed objections to the magistrate's decision arguing

that the magistrate erred in concluding that the commission acted contrary to law. We

disagree.

       {¶ 4} The commission argues that, as a matter of law, a claimant is not entitled to

PTD on any allowed condition if there are other allowed conditions that have not reached

MMI. The commission principally relies upon State ex rel. Johnson v. Indus. Comm.,

10th Dist. No. 05AP-1187, 2006-Ohio-5091, to support its argument. However, we find

Johnson unpersuasive because it did not address the issue presented in the case at bar.

       {¶ 5} Although Johnson involved facts similar to those presented here, the issue

raised by the relator involved the application of res judicata and/or the commission's
No. 13AP-305                                                                            3

exercise of continuing jurisdiction when the commission previously terminated TTD

based on a finding that the allowed claims had reached MMI and then, based on

additional medical evidence, later found some of the allowed claims had not reached MMI

in adjudicating a subsequent application for PTD. Johnson simply did not address the

legal issue presented here.

       {¶ 6} We also find unpersuasive the commission's attempt to distinguish Ferrell.

In Ferrell, this court held that a claimant is entitled to have a PTD application based upon

an allowed physical claim adjudicated on its merits even though the claimant has an

allowed psychological claim that is not at MMI. The commission correctly points out that,

in Ferrell, the claimant filed for PTD based only the allowed physical conditions, all of

which had reached MMI, and did not include in his application the allowed psychological

claim, which had not reached MMI. However, those facts played no role in the court's

legal analysis. Instead, the Ferrell court flatly rejected the assertion that Ohio Adm.Code

4121-3-34(D)(1)(f) requires the denial of PTD if any allowed condition has not reached

MMI. To the contrary, the Ferrell court held that a claimant who has multiple allowed

conditions is not required to show that each condition, standing alone, is work

prohibitive. Therefore, the claimant in Ferrell could not be denied PTD based upon his

allowed physical claim solely because his psychological claim had not reached MMI.

       {¶ 7} Based upon the holding in Ferrell, we agree with the magistrate's legal

analysis. Therefore, we overrule the commission's objections.

       {¶ 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 grant a limited writ
No. 13AP-305                                                                             4

and order the commission to vacate its March 5, 2013 order that denies relator's PTD

application, and to enter an order consistent with this decision that either grants or denies

relator's PTD application.

                                Objections overruled; limited writ of mandamus granted.

                          CONNOR and T. BRYANT, JJ., concur.

              T. BRYANT, J., retired, of the Third Appellate District,
              assigned to active duty under authority of Ohio Constitution,
              Article IV, Section 6(C).
No. 13AP-305                                                                       5

                                     APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


State of Ohio ex rel.                      :
James M. Martin,
                                           :
              Relator,
                                           :                  No. 13AP-305
v.
                                           :             (REGULAR CALENDAR)
Springfield Township and
Industrial Commission of                   :
Ohio,
                                           :
              Respondents.
                                           :



                         MAGISTRATE'S DECISION

                             Rendered on December 20, 2013


              Law Office of James A. Whittaker, LLC, Laura I. Murphy
              and James A. Whittaker, for relator.

              Michael DeWine, Attorney General, and Naveen v.
              Ramprasad, for respondent Industrial Commission of Ohio.


                                   IN MANDAMUS

       {¶ 9} In this original action, relator, James M. Martin, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the March 5, 2013 order of its staff hearing officer ("SHO") that denied him permanent
total disability ("PTD") compensation for his allowed post-traumatic stress disorder
("PTSD") on grounds that allowed physical conditions of another industrial claim have
not reached maximum medical improvement ("MMI"), and to enter an order granting
PTD compensation based upon the PTSD.
No. 13AP-305                                                                              6

Findings of Fact:
       {¶ 10} 1. This is the second mandamus action relator has filed in regard to his PTD
application, filed April 20, 2010. In the first action, this court issued a writ that resulted
in the SHO's order at issue here.
       {¶ 11} 2. Relator has two industrial claims arising out of his employment as a
police officer with respondent Springfield Township, a state-fund employer.
       {¶ 12} 3. Claim No. 97-319655 arises from an injury that occurred January 20,
1997. The claim is allowed for several injuries to the right knee, right leg, and right hip.
The claim is also allowed for a psychiatric condition described as "prolong post traumatic
stress."
       {¶ 13} 4. Claim No. 97-489866 arises from an injury that occurred August 5, 1997.
This claim is allowed for several injuries to the right and left knees and to the lumbar area.
There are no psychiatric conditions allowed in this claim.
       {¶ 14} 5. On April 19, 2010, at relator's request, treating psychologist William C.
Melchior, Ed.D., opined in a two-page report:
              [G]iven the extent and ongoing nature of Mr. Martin's PSTD
              [sic], it is this psychologist's opinion that Mr. Martin is
              determined to be permanently and totally disabled from
              work.

       {¶ 15} 6. On April 21, 2010, at relator's request, treating chiropractor Dan
Buchanan, D.C., opined:
              Based on Mr. Martin's history, his subjective complaints, his
              physical exam findings, and his current level of function, and
              based solely on the allowed diagnoses in his claim; I am of
              the opinion with a reasonable degree of medical certainty
              that Mr. Martin is permanently and totally disable [sic] from
              any forms of sustained remunerative employment.

       {¶ 16} 7. Earlier, on April 20, 2010, relator filed an application for PTD
compensation. In support, relator submitted the Melchior and Buchanan reports.
       {¶ 17} 8. On May 25, 2010, at the commission's request, relator was examined by
Donald J. Tosi, Ph.D. In his eight-page narrative report, Dr. Tosi concluded:
              Specific to PTSD, the Injured Worker is able to return to his
              former position of employment without limitations.
No. 13AP-305                                                                          7

      {¶ 18} 9. Earlier in his report, Dr. Tosi opined:
             He would function best under normal to moderate stress
             conditions with work tasks that are simple to moderate in
             complexity.

             ***

             The Injured Worker is able to sustain focus and attention
             long enough to permit completion of tasks in a low to
             moderate stress work environment.

      {¶ 19} 10. On May 29, 2010, Dr. Tosi completed a form captioned "Occupational
Activity Assessment[,] Mental & Behavioral Examination."        On the form, Dr. Tosi
indicated by his mark: "This Injured Worker has no work limitations."
      {¶ 20} 11. On May 26, 2010, at the commission's request, relator was examined by
Ron M. Koppenhoefer, M.D.        In his seven-page narrative report, Dr. Koppenhoefer
opined:
             The combined values chart would indicate that he has a total
             of a 36% impairment to the body as a whole.

             Based on my examination and review of the medical records,
             it is my medical opinion that Mr. Martin is limited to
             sedentary work activities at this time based on the allowed
             conditions in these claims.

      {¶ 21} 12. On May 26, 2010, Dr. Koppenhoefer completed a Physical Strength
Rating form. On the form, Dr. Koppenhoefer indicated by his mark that relator is capable
of sedentary work.
      {¶ 22} 13. Following an October 5, 2010 hearing, an SHO issued an order denying
the PTD application. In his order, the SHO relied upon reports from Drs. Koppenhoefer
and Tosi in determining residual functional capacity. In that regard, the SHO concluded:
             The Staff Hearing Officer finds that the capabilities listed by
             Dr. Koppenhoefer and Dr. Tosi are the capabilities the
             Injured Worker has as a result of the recognized orthopedic
             and psychological conditions in the claim.

Then the SHO addressed the non-medical factors. The SHO concluded that relator is
able to engage in sustained remunerative employment.
No. 13AP-305                                                                             8

       {¶ 23} 14. On March 15, 2011, relator filed in this court a mandamus action that
was assigned case No. 11AP-252. The action was assigned to a court magistrate who
issued his Magistrate's Decision on December 28, 2011. In his decision, the magistrate
found that the report of Dr. Tosi is so internally inconsistent that it must be eliminated
from evidentiary consideration.
       {¶ 24} 15. On June 29, 2012, this court issued its Decision and Judgment Entry.
In its decision, this court adopted the magistrate's decision, including the findings of fact
and conclusions of law. This court granted a writ of mandamus ordering the commission
to vacate the October 5, 2010 order of its SHO and, in a manner consistent with the
magistrate's decision, enter a new order that adjudicates the PTD application. State ex
rel. Martin v. Indus. Comm., 10th Dist. No. 11AP-252, 2012-Ohio-2984.
       {¶ 25} 16. On August 30, 2012, the Ohio Bureau of Workers' Compensation
("bureau") mailed an order awarding temporary total disability ("TTD") compensation
starting June 20, 2012 in industrial claim No. 97-489866. The bureau's decision was
based on:
              The physician file review completed by Dr. Stewart on
              8/18/12, the C84 submitted by the injured worker and the
              Medco14s submitted by Dr. Paley.

       {¶ 26} 17. Apparently,     the   bureau's   August   30,   2012    order   was    not
administratively appealed.
       {¶ 27} 18. On September 11, 2012, relator underwent left knee surgery performed
by Jonathan Paley, M.D. The surgical procedure is described in an operative report from
Dr. Paley:
              [One] Videoarthroscopy of the left knee with chondroplasty,
              medial femoral condyle
              [Two] Debridement of residuals of medial meniscus tear
              [Three] Debridement of lateral meniscus tear

       {¶ 28} 19. On October 6, 2012, an SHO mailed an order acknowledging this court's
writ of mandamus in case No. 11AP-252. The SHO's order instructs:
              Therefore, in accordance with the Writ, it is ordered that the
              Staff Hearing Officer order dated 10/05/2010, findings
              mailed 10/07/2010, which denied the claimant's IC-2
              Application for Permanent Total Disability Compensation
              filed on 04/20/2010, be vacated.
No. 13AP-305                                                                    9

             It is ordered that the claim be referred to the Medical
             Services Department of the Industrial Commission to
             arrange a new examination of the Injured Worker on the
             allowed psychological conditions in the claim. The
             examining psychologist shall conduct an examination of the
             claimant and shall issue a report concerning the issue of
             whether claimant is permanently and totally disabled as a
             result of the allowed psychological conditions in this claim. It
             is ordered that after the psychological examination and the
             issuance of the report, the claim shall be referred to the
             Hearing Administrator to schedule a hearing de novo before
             a Staff Hearing Officer to determine the merits of the
             Application of Permanent Total Disability Compensation
             filed on 04/20/2010.

             In the de novo hearing, the Staff Hearing Officer shall
             adjudicate the Application for Permanent Total Disability
             Compensation filed on 04/20/2010, after considering the
             new psychological report concerning the issue of whether
             claimant is Permanently and Totally Disabled as a result of
             the allowed psychological conditions in the claim, and all
             other evidence related to the IC-2 Application filed on
             04/20/2010. In addition, it is ordered that the psychological
             report of Dr. Donald Tosi, dated 06/02/2010, shall not be
             considered in adjudicating the claimant's IC-2 Application
             for Permanent Total Disability Compensation filed on
             04/20/2012.

             The Staff Hearing Officer shall issue an order which either
             grants or denies the Application for Permanent Total
             Disability Compensation filed on 04/20/2010, cite the
             evidence which is the basis for the decision and, provide an
             explanation for the decision in accordance with State ex rel.
             Mitchell v. Robins & Myers, Inc. (1984), 6 Ohio St.3d 481
             and State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d
             203.

      {¶ 29} 20. On November 2, 2012, at the commission's request, relator was
examined by clinical psychologist Norman L. Berg, Ph.D. In his eight-page narrative
report, Dr. Berg opined:
             These are my responses in regard to the specific questions
             posed by the Industrial Commission. In my opinion, the
             injured worker has reached maximum medical improvement
             (MMI) in regard to allowed condition of "Prolonged Post-
             Traumatic Stress." This is based on the fact that claimant
No. 13AP-305                                                                   10

             suffered his industrial injury approximately 15 years ago, he
             continues to exhibit classic symptoms of condition of PTSD,
             and he continues to exhibit such symptoms even though he
             has been involved in mental health treatment (counseling
             and medication) for several years. Based on the AMA Guides,
             2nd and 5th Editions, and with reference to the Industrial
             Commission Medical Examination Manual I rate this
             claimant as having 65% permanent impairment based on
             allowed condition of "Prolonged Post Traumatic Stress."
             Ongoing mental health treatment (counseling and
             medication) appears necessary for maintenance purposes.

             In regard to activities of daily living, claimant is rated as
             having Class 2, mild impairment, in that symptoms of PTSD
             at times reduce his motivation to engage in these routine
             activities. He does attend to his personal hygiene needs but
             does so with pain. The pain then reminds him of the
             situation in which caused his injuries and the related
             condition of PTSD.

             In regard to social functioning, claimant is rated as having
             Class 4, marked impairment, in that symptoms of PTSD
             result in his either withdrawing from social situations or
             becoming hyper vigilant, angry, and having a tendency to
             become confrontational.

             In regard to concentration, persistence, and pace for task
             completion, claimant is rated as having Class 4, marked
             impairment. Claimant's symptoms of PTSD including
             intrusive thoughts of the event which cause these symptoms
             result in claimant at times having difficulty with
             concentration and in being persistent.

             In regard to claimant's adaption to the work place, claimant
             is rated as having Class 4, marked impairment. Claimant
             prefers not to be around others, he does not trust others, and
             he either withdraws or becomes angry, hyper vigilant,
             suspicious, and has feelings of becoming confrontational.

      {¶ 30} 21. On November 2, 2012, Dr. Berg completed a form captioned
"Occupational Activity Assessment[,] Mental & Behavioral Examination." On the form,
Dr. Berg indicated by his mark: "This Injured Worker is incapable of work."
      {¶ 31} 22. On November 29, 2012, an SHO mailed a tentative order awarding PTD
compensation starting April 19, 2010. The tentative order explains:
No. 13AP-305                                                                  11

           It is the finding of the Staff Hearing Officer that the Injured
           Worker's condition has become permanent and that he is
           unable to return to his former position of a police officer as a
           result of the allowed conditions in claim 97-319655.

           Dr. Melchior, Injured Worker's Psychologist, opined in a
           report dated 04/19/2010 that the Injured Worker is
           permanently and totally disabled from work due to the
           allowed condition of Prolonged Post Traumatic Stress
           Disorder. The Staff Hearing Officer notes that this condition
           is allowed in claim 97-319655. Dr. Melchior opined that the
           Injured Worker is unable to engage in sustained
           remunerative employment based upon this condition of
           Prolonged Post Traumatic Stress Disorder.

           Dr. Norman Berg, Clinical Psychologist, examined the
           Injured Worker at the request of the Industrial Commission
           on 11/02/2012. Dr. Berg opined that the Injured Worker is
           incapable of work based on the allowed condition of
           Prolonged Post Traumatic Stress Disorder. Dr. Berg opined
           that the Injured Worker has the below - listed limitations
           based on the impairments arising from the allowed condition
           of "Prolonged Post Traumatic Stress Disorder": the Injured
           Worker would have moderate limitations in his ability to
           understand, remember and follow direction. The Injured
           Worker would have marked limitations in his ability to
           maintain attention, concentration and pace in a work setting.
           The Injured Worker would have marked limitations in his
           ability to relate to others in a work setting. Dr. Berg opined
           that in this area his limitations would be marked to extreme.
           Dr. Berg further opined that the Injured Worker would have
           marked limitations in his ability to cope with routine job
           stress. Dr. Berg opined that the Injured Worker is
           permanently and totally disabled based upon the allowed
           condition of Prolonged Post Traumatic Stress Disorder
           allowed in claim number 97-319655.

           The Staff Hearing Officer finds based upon the medical
           evidence alone of Dr. Melchior and Dr. Berg that the Injured
           Worker is unable to engage in sustained remunerative
           employment and is permanently and totally disabled.

           The Staff Hearing Officer finds that the Injured Worker's
           Application for     Permanent     and Total      Disability
           Compensation filed 04/20/2010 is granted.
No. 13AP-305                                                                          12

              The Staff Hearing Officer finds that the appropriate start
              date of Permanent and Total Disability Compensation is
              04/19/2010, the date of the medical report of Dr. Melchior.

              The Staff Hearing Officer finds that 100% of the award of
              Permanent and Total Disability Compensation is to be made
              in claim 97-319655.

              The Staff Hearing Officer finds that 0% of the award of
              Permanent and Total Disability Compensation is made in
              claim 97-489866.

              This order is based on the medical report of Dr. Melchior
              dated 04/19/2010 and the medical report of Dr. Berg dated
              11/02/2012.

        {¶ 32} 23. On December 3, 2012, on a Medco-14, Dr. Paley certified TTD
beginning December 8, 2012 to February 18, 2013.
        {¶ 33} 24. On December 4, 2012, the bureau timely objected to the November 29,
2012 tentative order.
        {¶ 34} 25. On February 13, 2013, relator underwent a "[r]evision right total knee"
performed by Dr. Paley.
        {¶ 35} 26. On March 20, 2013, on a Medco-14, Dr. Paley certified TTD beginning
February 18, 2013. On March 28, 2013, Dr. Paley extended the disability period to June 7,
2013.
        {¶ 36} 27. Earlier, on March 5, 2013, an SHO heard the PTD application filed
April 20, 2010. Thereafter, on March 12, 2013, the SHO mailed an order denying the PTD
application. The SHO's order explains:
              The Hearing Officer specifically finds that permanent and
              total disability compensation is to be denied as some of the
              allowed medical conditions are still temporary and have not
              reached maximum medical improvement. In coming to this
              conclusion, the Hearing Officer relies on Ohio Admin. Code
              4121-3-34(D) (1) (f) which states "If, after hearing, the
              adjudicator finds that the Injured Worker's allowed medical
              condition(s) is temporary and has not reached maximum
              medical improvement, the Injured Worker [sic] shall be
              found not to be permanently and totally disabled because the
              conditions [sic] remains temporary."
No. 13AP-305                                                                         13

                In the present claim, the Hearing Officer finds that the
                Injured Worker is currently receiving temporary total
                disability compensation in claim number 97-489866. The
                Hearing Officer finds that the Injured Worker is currently
                receiving temporary total disability compensation as of
                06/20/2012 per Bureau of Workers' Compensation order
                dated 08/30/2012. The Hearing Officer notes that the
                Injured Worker underwent surgery on 09/11/2012 for
                treatment of the allowed conditions in claim 97-489866
                including the conditions of tear anterior cruciate ligament
                left knee, tear medial meniscus and bicompartmental
                degenerative arthritis left knee. The Hearing Officer further
                finds that the Injured Worker underwent a total revision of
                the right knee on 02/13/2013 for treatment of the allowed
                right knee conditions in claim 97-489866. The Injured
                Worker has been certified to be temporarily and totally
                disabled per Dr. Paley through 02/18/2013 per MEDCO-14
                completed by Dr. Paley dated 12/03/2012.

                The Hearing Officer finds that as the allowed conditions in
                claim 97-489866 are still temporary and have not reached
                maximum medical improvement, the Hearing Officer denies
                the Injured Worker's application for permanent and total
                disability compensation filed 04/20/2010.

                Further, the Hearing Officer vacates the           Industrial
                Commission tentative order issued 11/29/2012.

                The Hearing Officer relies on the Bureau of Workers'
                Compensation order dated 08/30/2012, the MEDCO-14
                completed by Dr. Paley dated 12/03/2012, the surgery report
                completed by Dr. Paley dated 02/13/2013 and the surgery
                report completed by Dr. Paley dated 09/11/2012.

          {¶ 37} 28. On April 5, 2013, the three-member commission, on a two-to-one vote,
denied relator's request for reconsideration.
          {¶ 38} 29. On April 10, 2013, relator, James M. Martin, filed this mandamus
action.
Conclusions of Law:
          {¶ 39} The issue is whether the commission, through its SHO's order of March 5,
2013, misapplied Ohio Adm.Code 4121-3-34(D)(1)(f) when it denied the PTD application
on grounds that some of the allowed conditions in claim No. 97-489866 have not reached
MMI and relator is currently receiving TTD compensation for a disability associated with
No. 13AP-305                                                                            14

those allowed conditions. That is, the commission refused to determine whether relator is
PTD based solely upon his allowed PTSD.
       {¶ 40} Finding that the commission misapplied Ohio Adm.Code 4121-3-34(D)(1)(f)
in denying the PTD application and refusing to determine whether relator is PTD based
solely upon his allowed PTSD, it is the magistrate's decision that this court issue a writ of
mandamus, as more fully explained below.
       {¶ 41} Ohio Adm.Code 4121-3-34 sets forth the commission's rules applicable to
the adjudication of PTD applications.
       {¶ 42} Ohio Adm.Code 4121-3-34(D) sets forth the commission's guidelines for
adjudication of PTD applications.
Ohio Adm.Code 4121-3-34(D)(1)(f) provides:
              If, after hearing, the adjudicator finds that the injured
              worker's allowed medical condition(s) is temporary and has
              not reached maximum medical improvement, the injured
              worker shall be found not to be permanently and totally
              disabled because the condition remains temporary.

       {¶ 43} Pertinent to the analysis here is the rationale explained in State ex rel.
Galion Mfg. Div. Dresser Industries, Inc. v. Haygood, 60 Ohio St.3d 38, 40 (1991),
wherein the court states:
              Contrary to Dresser's suggestion, a claimant who has
              multiple allowed conditions is not required to show that each
              condition, standing alone, is work-prohibitive.

       {¶ 44} In Galion, the commission awarded the claimant PTD compensation based
upon the reports of Drs. Retter and Lyons. Dr. Retter found that the claimant was
permanently and totally disabled due to the physical conditions of the claim. Dr. Lyons, a
psychologist, concluded that the claimant could not engage in sustained remunerative
employment, but stated that "[p]rognosis for improvement through treatment is
encouraging." In mandamus, the employer challenged the report of Dr. Lyons, but did
not challenge the reports of Dr. Retter. The writ was denied on grounds that Dr. Retter's
reports were some evidence supporting the PTD compensation.
       {¶ 45} In State ex rel. Ferrell v. Indus. Comm., 10th Dist. No. 04AP-948, 2005-
Ohio-3100, this court had occasion to limit the scope of Ohio Adm.Code 4121-3-
34(D)(1)(f) based upon the Galion rationale.
No. 13AP-305                                                                          15

       {¶ 46} Thomas A. Ferrell was injured while employed as a truck driver.         His
industrial claim was allowed for various physical injuries. His claim was also allowed for
"depressive disorder nec; generalized anxiety disorder." Id. at ¶ 10.
       {¶ 47} In August 2003, the commission determined that all of Ferrell's allowed
physical conditions had reached MMI, but TTD was ordered to continue based upon the
allowed psychological conditions.
       {¶ 48} In October 2003, Ferrell applied for PTD compensation. In support, he
submitted reports from his treating chiropractor, Gregory Richards. In two reports, Dr.
Richards opined that the allowed physical conditions produced "total and permanent
disablement." Id. at ¶ 17.
       {¶ 49} In February 2004, at the commission's request, Ferrell was examined by
James Rutherford, M.D. Dr. Rutherford opined that Ferrell "is not capable of physical
work activity." Id. at ¶ 18.
       {¶ 50} Also in February 2004, at the commission's request, Ferrell was examined
by psychologist Earl F. Greer, Jr., Ed.D.            Dr. Greer opined that the allowed
psychological/psychiatric conditions had not reached MMI.
       {¶ 51} In April 2004, a commission SHO mailed a tentative order finding that
Ferrell was PTD based upon the reports of Drs. Richards and Rutherford.
       {¶ 52} Following the employer's objection to the tentative order, the SHO heard
the matter in July 2004. The SHO vacated the tentative order and denied the PTD
application. The SHO relied upon Dr. Greer's report, Ferrell's continued receipt of TTD
compensation, and Ohio Adm.Code 4121-3-34(D)(1)(f).
       {¶ 53} Ferrell then filed in this court a mandamus action challenging the
commission's denial of his PTD compensation even though he was receiving TTD
compensation from his allowed psychological/psychiatric conditions.
       {¶ 54} This court granted a limited writ ordering the commission to vacate its
order denying the PTD application and to issue a new order that redetermines the PTD
application consistent with this court's decision.
       {¶ 55} In granting the writ, this court relied upon the Galion rationale to narrow
the commission's interpretation of Ohio Adm.Code 4121-3-34(D)(1)(f).
No. 13AP-305                                                                            16

       {¶ 56} This court's decision in Ferrell compels the issuance of a limited writ in this
action. While relator has allowed physical conditions that undisputedly have not reached
MMI and are the basis of his current receipt of TTD compensation, the recent report of
Dr. Berg, if found persuasive, would support an award of PTD based solely upon the
allowed PTSD.
       {¶ 57} Here, the commission has, in effect, refused to adjudicate relator's claim
that his PTSD alone produces PTD. The commission's refusal to adjudicate the PTD claim
here that is based upon the allowed psychological condition is similar to the commission's
refusal to adjudicate the PTD claim in Ferrell that was based upon allowed physical
conditions. In both cases, the commission has improperly used allowed conditions that
have not reached MMI as a basis for denial of PTD compensation premised upon one or
more allowed conditions that are at MMI.
       {¶ 58} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate the March 5, 2013 order of its SHO that
denies relator's PTD application, and to enter an order consistent with this magistrate's
decision that either grants or denies the 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).
