[Cite as State ex rel. Watkins v. St. Clare Retirement Community, 2016-Ohio-3136.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel.                                  :
Gwendolyn Watkins,
                                                       :
                 Relator,
                                                       :
v.                                                                                   No. 15AP-175
                                                       :
St. Clare Retirement Community                                             (REGULAR CALENDAR)
and Industrial Commission of Ohio,                     :

                 Respondents.                          :




                                           D E C I S I O N

                                      Rendered on May 24, 2016


                 On brief: Lisa M. Clark, for relator.

                 On brief: Dinsmore & Shohl, LLP, and Jacob Dobres, for
                 respondent St. Clare Retirement Community.

                 On brief: Michael DeWine, Attorney General, and
                 Cheryl J. Nester, for respondent Industrial Commission of
                 Ohio.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, Gwendolyn Watkins, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order that denied her application for permanent total disability ("PTD")
compensation and to find that she is entitled to said compensation. Pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a
No. 15AP-175                                                                                2

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
when it relied on the psychological report of Dr. Manges because Dr. Manges indicated
that relator was capable of work with certain limitations but then failed to identify those
limitations in his report. Because Dr. Manges did not identify the applicable limitations,
his report did not constitute some evidence upon which the commission could rely.
Therefore, the magistrate has recommended that we grant a writ of mandamus and order
the commission to vacate its order that denied relator's application for PTD and, after
either receiving an addendum report from Dr. Manges or having relator examined by
another examiner, determine whether or not she is entitled to said compensation.
       {¶ 2} Relator's employer, respondent St. Clare Retirement Community ("St.
Clare"), filed objections to the magistrate's decision. In its first objection, St. Clare
contends that the magistrate ignored Dr. Manges' conclusion that relator's allowed
psychological condition "moderately negatively affected" relator's ability to perform
sustained remunerative employment. In essence, St. Clare argues that the magistrate
improperly substituted her judgment for that of the commission with respect to the
evidentiary impact of Dr. Manges' report. We disagree.
       {¶ 3} The magistrate did not substitute her judgment for that of the commission
in weighing the impact of Dr. Manges' report. Rather, the magistrate found that Dr.
Manges' report was not some evidence upon which the commission could rely because the
report expressly referenced limitations but did not identify the limitations under which
relator would be capable of working. Therefore, we overrule St. Clare's first objection.
       {¶ 4} In its second objection, St. Clare contends the magistrate improperly shifted
the burden of proof to require the commission to consider why relator made no efforts at
vocational rehabilitation since leaving the workplace in 1995. St. Clare argues that by
requiring the commission on remand to consider whether relator's psychological
condition impacted her ability to participate in vocational rehabilitation, the magistrate
impermissibly shifted the burden of proof. Again, we disagree.
       {¶ 5} The magistrate's decision does not shift the burden of proof.                 The
magistrate's decision simply highlights an issue that may need to be addressed if the
commission reexamines the nonmedical factors following a redetermination of whether
No. 15AP-175                                                                             3

relator's psychological claim prevents her from sustained remunerative employment.
Therefore, we overrule St. Clare's second objection.
       {¶ 6} 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 relator's
request for a writ of mandamus.
                                       Objections overruled; writ of mandamus granted.

                                TYACK and BROWN, JJ., concur.
No. 15AP-175                                                                           4

                                      APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


State of Ohio ex rel.                       :
Gwendolyn Watkins,
                                            :
             Relator,
                                            :
v.                                                               No. 15AP-175
                                            :
St. Clare Retirement Community                               (REGULAR CALENDAR)
and Industrial Commission of Ohio,          :

             Respondents.                   :



                        MAGISTRATE'S DECISION

                             Rendered on February 17, 2016



             Lisa M. Clark, for relator.

             Dinsmore & Shohl, LLP, and Jacob Dobres, for respondent
             St. Clare Retirement Community.

             Michael DeWine, Attorney General, and Sana Ahmed, for
             respondent Industrial Commission of Ohio.


                                     IN MANDAMUS

      {¶ 7} Relator, Gwendolyn Watkins, has filed this original action requesting that
this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order which denied her application for permanent total
disability ("PTD") compensation, and ordering the commission to find that she is entitled
to that compensation.
No. 15AP-175                                                                              5

Findings of Fact:
       {¶ 8} 1. Relator sustained a work-related injury on June 13, 1993, and her
workers' compensation claim has been allowed for the following conditions:
              CERVICAL STRAIN; HERNIATED NUCLEUS PULPOSUS
              C4-C5; AGGRAVATION OF PRE-EXISTING SPONDYLITIC
              C5-6 AND C6-7; RIGHT CARPAL TUNNEL SYNDROME;
              LEFT CARPAL TUNNEL SYNDROME; DEPRESSIVE
              MOOD DISORDER; CERVICAL STENOSIS AT C4-5 AND
              C5-6.

       {¶ 9} 2. On February 28, 2014, relator filed her application for PTD
compensation. According to her application, relator was 40 years of age, had completed
the 12th grade, and had participated in 12 weeks of nurse aide training. Relator indicated
that she had filed for Social Security Disability benefits, but did not indicate whether or
not she was receiving those benefits. Relator indicated that she could read, write, and
perform basic math, that she used a cane and a C-Pap machine, and that she was not
interested in participating in rehabilitation services. Relator also indicated that she last
worked as a nursing assistant in 1998.
       {¶ 10} 3. In support of her application, relator submitted the February 13, 2014
report of William C. Melchior, Ed.D., her treating psychologist. Dr. Melchior opined that
relator's allowed psychological condition had reached maximum medical improvement
("MMI") and that psychological testing revealed that her depression was at the high end
of the average range for chronic pain patients. He noted that she would have a number of
restrictions or limitations including impaired cognitive skills, low stress, frustration
tolerance, difficulty remembering and following instructions, difficulty maintaining
attention for extended periods of time, difficulty accepting criticism from a supervisor,
and difficulty maintaining a normal work day or normal work week without an
unreasonable number and length of rest periods. He opined that she was permanently
and totally disabled as a result of the allowed psychological condition.
       {¶ 11} 4. Relator's employer had her examined by Jessica Twehues, Psy.D. In her
July 17, 2014 report, Dr. Twehues identified the allowed conditions in relator's claim,
listed and discussed the medical records which she reviewed, opined that she had a 25
percent impairment, and further opined that she would be unable to engage in any type of
sustained remunerative employment, stating:
No. 15AP-175                                                                           6

             It is my opinion that the [Injured Worker] would be unable
             to engage in any type of sustained remunerative employment
             based on her allowed psychological condition of Depressive
             Disorder NOS. She presents as significantly depressed and
             demonstrated poor stress tolerance during testing. She cried
             on a few occasions during the evaluation and demonstrated
             variable eye contact, sitting on the couch slumped and
             looking at the ceiling. Dr. Melchior, her treating
             psychologist, opines that the [Injured Worker] would have
             difficulty returning to work due to her depressive state. She
             has a long history of depressive symptoms which Dr.
             Melchior opines have worsened in recent years. I opine that
             the [Injured Worker] would be unable to return to work for
             these above stated reasons.

       {¶ 12} 5. Relator was also examined by Kenneth J. Manges, Ph.D.            In his
September 9, 2014 report, Dr. Manges identified the allowed conditions in relator's claim
as well as the medical records which he reviewed. Dr. Manges opined that relator's
allowed psychological condition had reached MMI and discussed her impairments as
follows:
             The [Injured Worker] demonstrates a Class 3 moderate
             whole person psychological impairment of 35% as a direct
             and proximate result of her BWC injury # 93-45400.

             Activities of Daily Living: 35% impairment levels are
             compatible with some but not all useful functioning for
             example, she avoids taking, on any new challenges or
             responsibilities and is pre-occupied with her pain and losses.

             Social Functioning: 35% impairment level are compatible
             with some but not all useful functioning. For example, she
             minimally socializes with anyone outside of her immediate
             family.

             Concentration: 15% impairment levels are compatible with
             some but not all useful functioning. For example, she was
             capable of performing a short term auditory memory task
             and relies on [sic] does her own decision making.

             Adaptation: 35% impairment levels are compatible with
             some but not all useful functioning. For example, she is
             preoccupied with her losses and stays away from most new
             experiences.
No. 15AP-175                                                                           7

                 ***

                 Overall, Ms. Watkins's activities of daily living, social
                 functioning, concentration and adaptation are moderately
                 negatively affected by her allowed psychological condition
                 from the industrial injury.

       {¶ 13} On the occupational activity assessment form, Dr. Manges indicated that
relator was capable of performing work within the limitations/modifications noted in his
attached report.
       {¶ 14} 6. There are two medical reports in the stipulation of evidence addressing
relator's impairment due to the allowed physical conditions in her claim. In his July 11,
2014 report, Paul T. Hogya, M.D., opined that relator could perform low-level, light-duty
work, stating:
                 [B]ased on the allowed physical conditions in the 1993
                 industrial injury claim, the objective medical evidence and
                 examination findings support Ms. Watkins to be readily
                 capable of functioning in a low-level, light industrial demand
                 capacity. That means exerting up to 15 pounds occasionally;
                 and or up to 10 pounds of force frequently; and/or a
                 negligible amount of force constantly in the course of lifting,
                 carrying, pushing and pulling various objects Overhead
                 reaching may be occasional and under five pounds. She
                 should avoid overhead climbing and crawling. Based on the
                 allowed conditions alone, she may squat and kneel as
                 needed. She may occasionally climb stairs and ramps such as
                 entering and exiting buildings. She is capable of using step
                 stools and small ladders up to four feet. Based on the allowed
                 conditions alone, sitting may be up to two hours at a time
                 and standing and walking up to one hour at a time with the
                 opportunity to change positions. She is capable of driving
                 automobiles and small pickup trucks with automatic
                 transmission up to 45 minutes at a time with an opportunity
                 to exit the vehicle and stretch. She has no restrictions with
                 regard to hearing, seeing or speaking. She is capable of
                 operating a telephone, headset, keyboard and mouse. She is
                 capable of using the hands as needed for gripping, grasping,
                 pinching, squeezing, writing, fine manipulation and light
                 assembly within the weight limits outlined above. She should
                 avoid use of vibrating tools and hammers Any keyboard and
                 mouse work should be accommodated with an ergonomic set
                 up.
No. 15AP-175                                                                             8

      {¶ 15} Relator was also examined by Gary L. Ray, M.D. In his August 27, 2014
report, Dr. Ray opined that relator's allowed physical conditions had reached MMI,
assessed a 28 percent whole person impairment, and concluded that she was capable of
performing sedentary work.
      {¶ 16} 7. The stipulation of evidence contains two vocational reports. In a report
dated October 20, 2014, Janet Chapman concluded that relator presented with a very
limited vocational profile. Considering her physical and mental limitations, Ms. Chapman
opined that relator would be unable to return to work in the competitive labor market.
      {¶ 17} In his November 2, 2014 report, Mark A. Pinti opined that relator was
capable of performing some sustained remunerative employment and should avoid work
that is stressful in nature or that involves making judgments or working in tandem with
others. Mr. Pinti provided a partial list of unskilled, sedentary jobs, which he believed
relator could perform.
      {¶ 18} 8. Relator's application for PTD compensation was heard before a staff
hearing officer ("SHO") on November 12, 2014. The SHO relied on the medical report of
Dr. Ray to conclude that relator was capable of performing sedentary employment.
Thereafter, the SHO relied on the report of Dr. Manges to conclude that relator's
psychological condition did not preclude her from performing some sustained
remunerative employment, stating:
             Kenneth Manges, Ph.D., examined the Injured Worker on
             08/20/2014 at the request of the Industrial Commission. Dr.
             Manges examined the Injured Worker on the allowed
             psychological condition and concludes that the allowed
             psychological [condition] has reached maximum medical
             improvement.

             Dr. Manges further opines that the Injured Worker retains
             the functional capacity to perform sustained remunerative
             employment when the impairments arising from the allowed
             psychological condition are considered. Dr. Manges does
             find that the Injured Worker suffers moderate limitations in
             activities of daily living, social functioning and adaptation as
             well as a mild impairment in concentration.

      {¶ 19} Thereafter, the SHO considered relator's non-disability factors. First, the
SHO found that her age of 60 years did constitute a barrier to her ability to become re-
No. 15AP-175                                                                             9

employed. The SHO determined that relator's high school education and her satisfactory
completion of vocational training to become a nurse aide in conjunction with her ability to
read, write, and perform basic math, qualified her to perform semi-skilled to skilled
employment. As such, the SHO considered relator's education to be a positive vocational
factor. The SHO noted that relator had worked for 25 years as a nurse aide where she
learned to perform her job duties through on-the-job training and was ultimately able to
supervise 8 to 12 people. The SHO concluded that relator's job history provided her with
numerous transferrable skills and, as such, found her work history to be a positive
vocational factor.
       {¶ 20} The SHO noted that relator had not participated in vocational rehabilitation
services nor had she made any other attempts to improve her skills since she last worked
in 1995 when she was 40 years of age. Specifically, the SHO stated:
              Additionally, the Staff Hearing Officer finds that the Injured
              Worker has not participated in vocational rehabilitation or
              made any other attempts to improve her skills in order to
              enhance her ability to gain re-employment since she last
              worked in 1995 when she was only 40 years of age.

              State ex rel. Cunningham v. Industrial Commission (2001)
              91 Ohio St.3d 250 sets forth the proposition that the
              Commission may consider all possible skills which may
              reasonably be developed to enhance the Injured Worker's
              ability to return to the work force. In the case at hand, the
              Staff Hearing Officer finds this particularly significant
              because the Injured Worker has not worked in any capacity
              since she was only 40 years of age.

              Further, State ex rel. Wilson v. Industrial Commission (1997)
              80 Ohio St.3d 261 sets forth the proposition that permanent
              total disability compensation is an award of last resort which
              should only be awarded when all avenues of returning to
              sustained remunerative employment having been exhausted.
              In the case at hand, the Staff Hearing Officer finds that the
              Injured Worker has not exhausted all avenues of returning to
              sustained remunerative employment because she never
              participated in vocational rehabilitation or made any other
              attempts to enhance her skills. Additionally, the Injured
              Worker testified at hearing that she has made no attempt to
              return to the work force since she last worked in 1995.
No. 15AP-175                                                                               10

              Based upon these factors, the Staff Hearing Officer finds that
              the Injured Worker has failed to establish that her non-
              medical disability factors render her permanently incapable
              of engaging in sustained remunerative employment.

       {¶ 21} The SHO concluded by stating that relator's non-medical disability factors,
in conjunction with her impairments, that she retained the functional capacity to perform
sustained remunerative employment and was not permanently and totally disabled.
       {¶ 22} 9. Relator's request for reconsideration was denied by order of the
commission mailed January 8, 2015.
       {¶ 23} 10. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 24} For the reasons that follow, it is this magistrate's decision that this court
should issue a writ of mandamus.
       {¶ 25} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 26} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 27} The relevant inquiry in a determination of permanent total disability is
claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic
No. 15AP-175                                                                                11

v. Indus. Comm., 69 Ohio St.3d 693 (1994). Generally, in making this determination, the
commission must consider not only medical impairments but also the claimant's age,
education, work record and other relevant non-medical factors. State ex rel. Stephenson
v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's medical capacity to work is
not dispositive if the claimant's non-medical factors foreclose employability. State ex rel.
Gay v. Mihm, 68 Ohio St.3d 315 (1994). The commission must also specify in its order
what evidence has been relied upon and briefly explain the reasoning for its decision.
State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991).
       {¶ 28} In this mandamus action, relator challenges the commission's reliance on
the report of Dr. Manges. Specifically, relator argues that Dr. Manges neglected to list the
limitations/modifications under which she would be able to perform some sustained
remunerative employment.
       {¶ 29} As noted in the findings of fact, Dr. Manges found that relator was
moderately, negatively affected by her allowed psychological condition, stating:
                Activities of Daily Living: 35% impairment levels are
                compatible with some but not all useful functioning for
                example, she avoids taking, on any new challenges or
                responsibilities and is pre-occupied with her pain and losses.

                Social Functioning: 35% impairment level are compatible
                with some but not all useful functioning. For example, she
                minimally socializes with anyone outside of her immediate
                family.

                Concentration: 15% impairment levels are compatible with
                some but not all useful functioning. For example, she was
                capable of performing a short term auditory memory task
                and relies on [sic] does her own decision making.

                Adaptation: 35% impairment levels are compatible with
                some but not all useful functioning. For example, she is
                preoccupied with her losses and stays away from most new
                experiences.

       {¶ 30} Thereafter, on his occupational activity assessment form, Dr. Manges
checked   the     box   indicating   that   relator   was   capable   of   work   within   the
limitations/modifications noted below, where he handwrote "[p]lease see attached
report." Relator asserts that Dr. Manges failed to identify any limitations or restrictions in
No. 15AP-175                                                                            12

the body of his report. In response, both the commission and relator's employer argue
that Dr. Manges' report does constitute some evidence upon which the commission could
rely and that his report does specify limitations. Specifically:
              [S]he avoids taking, on any new challenges or
              responsibilities and is pre-occupied with her pain and losses.

              * * * [S]he minimally socializes with anyone outside of her
              immediate family.

              * * * [S]he was capable of performing a short term auditory
              memory task and relies on [sic] does her own decision
              making.

              [S]he is preoccupied with her losses and stays' way from
              most new experiences.

       {¶ 31} The magistrate agrees with relator that Dr. Manges did not identify the
limitations under which relator would be capable of working. For example, Dr. Manges
could have noted that relator should avoid undue stress, working with others, and
complex tasks; however, he did not. To the extent respondents assert that the above-
noted statements constitute limitations on her ability to work, the magistrate disagrees.
Without having provided any limitations, the magistrate finds that Dr. Manges' report
does not constitute some evidence upon which the commission could rely.
       {¶ 32} The magistrate is cognizant that the commission specifically noted that
relator had not pursued any vocational rehabilitation since she left work in 1995. Relator
noted that, at some point, she was found not to be a feasible candidate for rehabilitation;
however, there is no indication of the reason or timing of this finding. While it could be
said that the commission provided an alternative basis upon which it denied her PTD
compensation, it must be remembered that one can only participate in vocational
rehabilitation if they have the ability to do so. Because the commission relied on the
psychological report of Dr. Manges, which the magistrate finds does not constitute some
evidence, the SHO did not consider whether or not, from a psychological standpoint,
relator could have participated in vocational rehabilitation. As such, to the extent that
this might be considered an alternative basis upon which PTD compensation was denied,
it is not supported by the evidence.
No. 15AP-175                                                                             13

      {¶ 33} Based on the foregoing, it is this magistrate's decision that this court should
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio, to vacate
its order which denied relator's application for permanent total disability compensation
and, after either receiving an addendum report from Dr. Manges or having relator
examined by another examiner, determine whether or not she is entitled to that
compensation.




                                             /S/ MAGISTRATE
                                             STEPHANIE BISCA


                             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).
