[Cite as State ex rel. Pritt v. Indus. Comm., 2018-Ohio-1066.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State ex rel. Jackie L. Pritt,                           :

                 Relator,                                :

v.                                                       :           No. 17AP-98

Industrial Commission of Ohio and                        :       (REGULAR CALENDAR)
Cuyahoga County,
                                                         :
                 Respondents.
                                                         :



                                          D E C I S I O N

                                      Rendered on March 23, 2018


                 On brief: Paul W. Flowers Co., L.P.A., and Paul W.
                 Flowers; Bashein & Bashein Co., L.P.A., and Richard W.
                 Bashein, for relator.

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

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION
SADLER, J.
        {¶ 1} Relator, Jackie L. Pritt, brings this original action seeking a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its June 28, 2016 order denying relator's motion for permanent total disability ("PTD")
and ordering the commission to issue an order granting compensation.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who rendered a decision and
recommendation that includes findings of fact and conclusions of law, which is appended
No. 17AP-98                                                                              2


hereto. Therein, the magistrate concluded the commission did not abuse its discretion in
denying relator's application for PTD.
       {¶ 3} 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).
       {¶ 4} Relator's objections focus on the staff hearing officer's ("SHO")
consideration of "non-disclosed medical conditions" that allegedly resulted in relator's
receipt of Public Employees Retirement System disability benefits in 2009, and the SHO's
finding that relator's non-allowed medical conditions prevented him from participating in
vocational rehabilitation services.      Relator argues that "references to non-allowed
conditions permeated the SHO's ruling," and the SHO "specifically relied on them" in
denying PTD. (Objs. at 5.) Accordingly, relator contends the magistrate erred by ruling
that the errors in the SHO's order are severable from the remainder of the order, and the
errors do not require this court to issue the requested writ. We disagree.
       {¶ 5} The magistrate relied on this court's decision in State ex rel. Barnett v.
Indus. Comm., 10th Dist. No. 14AP-628, 2015-Ohio-3898, in support of its ruling on
severability. In Barnett, claimant suffered an injury to her back while working as a bus
driver. The commission denied claimant's vocational rehabilitation referral request after
finding that she was not a feasible candidate for vocational rehabilitation services.
Claimant subsequently filed a PTD application. In denying claimant's application, the
SHO concluded relator had a 15 percent whole body impairment from her industrial
injury, and she was capable of performing sedentary work. The SHO then reviewed
claimant's nonmedical factors and found claimant's work history suggests transferrable
work skills, and her "vocational history is a vocational asset." Id. at ¶ 6. The SHO's order
also noted that because claimant had "not participated in a rehabilitation program or
indicated any effort to obtain training," the order denying relator vocational rehabilitation
services did not "necessitate a finding of permanent total disability." Id.
No. 17AP-98                                                                                3


       {¶ 6} A magistrate of this court found the record contained some evidence in
support of the SHO's order, and the incorrect statement regarding claimant's efforts to
obtain vocational training could be separated from the remainder of the order.              In
overruling claimant's objection to the magistrate's decision, this court concluded: "the
SHO's denial of PTD was not based on relator's failure to participate in vocational
rehabilitation. Rather, the SHO relied on Dr. [James] Powers' medical report and the
SHO's own analysis of the nonmedical factors to conclude that relator was capable of
performing sustained remunerative employment." Id. at ¶ 11. Accordingly, we held that
erroneous statement in an SHO's order regarding the claimant's alleged failure to indicate
any effort to obtain training did not require the issuance of a writ of mandamus because
the incorrect statement could easily be separated from the SHO's analysis in the
remainder of the order. Id. at ¶ 12.
       {¶ 7} The circumstances of this case are similar to those addressed in Barnett,
and the same result is required. Here, the magistrate correctly observed the physicians
and psychologists who examined relator for the allowed physical and mental conditions in
the claim "universally opined" that the industrial injury permits sedentary employment.
(Mag.'s Decision at 17.) Relator concedes the record contains some evidence to support
the SHO's determination that relator is capable of performing sedentary work.
       {¶ 8} The SHO's order also reveals a thorough analysis of the relevant nonmedical
disability factors, including relator's age, education, work history, and transferrable skills.
The SHO determined the relevant nonmedical disability factors do not preclude relator
from currently engaging in sustained remunerative employment of a sedentary nature.
The SHO found as follows:
              Staff Hearing Officer finds the Injured Worker's age of 59
              and number of years of work demonstrates Injured Worker's
              long term employability and expectation that Injured Worker
              can adapt to new work situations in competition with others
              based on the allowed conditions in the claim.

              ***

              * * * Staff Hearing Officer finds that that based upon the
              Injured Worker's lengthy work history, documenting a
              positive work ethic and demonstrated ability to maintain
No. 17AP-98                                                                              4


              employment involving supervisory duties, that Injured
              Worker has transferrable skills that would allow him to
              perform work in the sedentary category consistent with the
              reports of Dr(s). Fink, Scheatzle, and Zellers.

(July 20, 2008 Record of Proceedings at 3.)
       {¶ 9} Neither relator's complaint in this matter nor his objections to the
magistrate's decision challenge the SHO's analysis of the relevant nonmedical disability
factors or the SHO's conclusion that relator has "transferrable skills that would allow him
to perform work in the sedentary category." (July 20, 2008 Record of Proceedings at 3.)
       {¶ 10} Our review of the record and the substance of the SHO's July 20, 2008
order reveal the SHO did not rely on relator's non-allowed conditions as a basis to deny
PTD. Rather, the SHO merely found that relator's failure to participate in vocational
rehabilitation services was attributable to relator's non-allowed conditions, not the
allowed conditions in the claim. The SHO denied relator's PTD application based on
finding that relator was currently capable of engaging in sustained remunerative
employment, the availability of vocational rehabilitation services notwithstanding. The
magistrate noted that relator's "fail[ure] to enter a vocational rehabilitation program, for
whatever reason, does not detract from the SHO's analysis that relator is able to perform
sustained remunerative employment based on the relied on medical evidence and
consideration of the non-medical factors." (Mag.'s Decision at ¶ 57.) Accordingly, the
magistrate found, pursuant to Barnett, the SHO's erroneous conclusion regarding
relator's failure to participate in vocational rehabilitation services was severable from the
SHO's other stated rationale for denying PTD. We agree. In our view, the error in the
SHO's decision does not require the issuance of the writ of mandamus ordering the
commission to award relator PTD benefits.
       {¶ 11} With regard to the SHO's reference to undisclosed medical conditions, the
magistrate acknowledged that the SHO erred by relying on non-allowed medical
conditions as a rationale for denying PTD. This court, however, has previously stated
"[w]here the commission provides an alternative rationale for its determination which
withstands the scrutiny of mandamus review and provides an independent basis for the
commission's decision, the fact that the commission incorrectly applied the law in a
No. 17AP-98                                                                            5


separate portion of the order does not constitute grounds for the granting of a writ of
mandamus." State ex rel. Davis-Hodges v. Indus. Comm., 10th Dist. No. 10AP-183,
2010-Ohio-5871, ¶ 41, citing State ex rel. Crown Cork & Seal Co., Inc. v. Indus. Comm.,
10th Dist. No. 04AP-909, 2005-Ohio-3788; State ex rel. Kinzer v. Sencorp/Senco, 10th
Dist. No. 02AP-1054, 2003-Ohio-4178. Put another way, " '[i]f it can be said that relator
has challenged only one of two bases [for denial of a PTD application], he cannot show
entitlement to a writ of mandamus if the basis he has failed to challenge supports the
commission's decision.' " Ohio ex rel. Reichley v. Indus. Comm. of Ohio & Cooper Tire &
Rubber Co., 10th Dist. No. 16AP-263, 2017-Ohio-2939, ¶ 6, quoting State ex rel. Terry v.
Anderson's, Inc., 10th Dist. No. 13AP-652, 2014-Ohio-4169, ¶ 57.
      {¶ 12} As previously noted, the SHO determined relator is medically capable of
engaging in sustained remunerative employment of a sedentary nature, and the relevant
nonmedical disability factors do not preclude relator from currently engaging in such
employment. Thus, the SHO provided an alternative rationale for denying PTD which
provides an independent basis for the commission's decision. The magistrate determined
because the record contains "some evidence" to support the SHO's alternative
determination, the commission did not abuse its discretion in denying PTD even though
the SHO incorrectly applied the law in a separate portion of the order. Davis-Hodges at
¶ 41. We agree with the magistrate.
      {¶ 13} An appellate court will not determine the commission abused its discretion
when there is some evidence in the record to support the commission's findings. State ex
rel. Medina v. Indus. Comm., 10th Dist. No. 15AP-29, 2016-Ohio-173, ¶ 11, citing State ex
rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio St.3d 197, 198 (1986); Barnett at ¶ 9.
"The some evidence standard 'reflects the established principle that the commission is in
the best position to determine the weight and credibility of the evidence and disputed
facts.' " Id., quoting State ex rel. Woolum v. Indus. Comm., 10th Dist. No. 02AP-780,
2003-Ohio-3336, ¶ 4, citing State ex rel. Pavis v. Gen. Motors Corp., 65 Ohio St.3d 30, 33
(1992). Our review of the record discloses some evidence to support the denial of PTD in
accordance with the alternative rationale cited by the SHO. Because the commission
provided an independent basis for the denial of PTD that withstands the scrutiny of
mandamus review, the commission did not abuse its discretion in denying relator's PTD
No. 17AP-98                                                                           6


application even though the SHO's order contains certain errors as noted above. On this
record, the errors in the SHO's order do not require us to issue a writ of mandamus
ordering the commission to grant relator's application for PTD benefits. Accordingly,
relator's objections are overruled.
       {¶ 14} Following an independent review of the magistrate's decision and the
objections filed by respondent, we find the magistrate has determined the pertinent facts
and properly applied the relevant law. Accordingly, we adopt the magistrate's decision as
our own, including the findings of fact and conclusions of law contained therein. For the
reasons set forth in the magistrate's decision and those expressed herein, relator's
objections are overruled.
                                                                   Objections overruled;
                                                              writ of mandamus denied.

                                DORRIAN, J., concurs.
                             LUPER SCHUSTER, J., dissents.
LUPER SCHUSTER, J., dissenting.
       {¶ 15} I respectfully dissent. As the majority recognizes, the SHO made at least
two errors. First, the SHO erroneously placed the burden on the employee to prove that
the non-allowed conditions were not the cause of his inability to perform sustained
remunerative employment. Second, the SHO incorrectly suggested the PTD application
could not be granted without disclosure of the PERS medical conditions. Unlike the
majority, I would not find the portions of the SHO order containing these errors
severable. Rather, I would sustain the objections related to the portions noted, grant a
limited writ, and remand the matter to the commission to review the PTD application
without the erroneous legal conclusions noted above.
                                ___________________
No. 17AP-98                                                                              7


                                      APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                               TENTH APPELLATE DISTRICT

The State ex rel. Jackie L. Pritt,            :

               Relator,                       :

v.                                            :                    No. 17AP-98

Industrial Commission of Ohio                 :                (REGULAR CALENDAR)
and
Cuyahoga County,                              :

               Respondents.                   :



                           MAGISTRATE'S DECISION

                                 Rendered on October 2, 2017


               Paul W. Flowers Co., L.P.A., and Paul W. Flowers, and
               Bashein & Bashein Co., L.P.A., and Richard W. Bashein, for
               relator.

               Michael DeWine, Attorney General, and LaTawnda N.
               Moore, for respondent Industrial Commission of Ohio.

               Michael C. O'Malley, Prosecuting Attorney, and Dale F.
               Pelsozy, for respondent Cuyahoga County.


                                      IN MANDAMUS

       {¶ 16} In this original action, relator, Jackie L. Pritt, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate the
June 28, 2016 order of its staff hearing officer ("SHO") that denied relator's application
for permanent total disability ("PTD") compensation, and to enter an order granting the
compensation.
No. 17AP-98                                                                           8


Findings of Fact:
       {¶ 17} 1. On July 20, 2008, relator injured his knees and quadriceps tendons
while employed as a corrections officer for respondent, Cuyahoga County, a state-fund
employer. Relator alleged that his injury occurred when he slipped and fell on the floor.
       {¶ 18} 2. The industrial claim (No. 08-843255) is allowed for:
               Sprain left knee and leg; contusion left knee; tear of the left
               quadricep[s] tendon; tear of the right quadriceps tendon;
               other postoperative right infection; major depressive
               disorder.

       {¶ 19} 3. On August 22, 2008, relator underwent bilateral quadriceps tendon
repairs.   The surgery was performed by Robert M. Molloy, M.D., who issued the
operative report.
       {¶ 20} 4. On December 2, 2011, relator underwent another surgery to his right
quadriceps due to an infection. The surgery was performed by Robert Leb, M.D., who
issued the operative report.
       {¶ 21} 5. On May 21, 2012, relator underwent another surgery to his right
quadriceps. The surgery was performed by Dr. Leb who issued the operative report.
The operative report describes the procedure as "[a]n incision and drainage of the right
quadriceps site with excision of the sinus tract."
       {¶ 22} 6. On May 3, 2013, relator underwent a surgery to his right knee. The
surgery was performed by Dr. Leb who issued the operative report. The operative report
describes the procedure as "incision and drainage and saucerization of the sinus tract
for the superficial wound infection of right knee with cultures and 6L of antibiotic
irrigation."
       {¶ 23} 7. On October 22, 2014, relator underwent yet another surgery to his right
knee. The surgery was performed by Dr. Leb who issued the operative report. The
operative report describes the procedure as "[d]raining sinus from the right knee
suprapatellar area, status post a remote quadriceps rupture and repair."
       {¶ 24} 8. The stipulated record contains an internal memorandum of the Ohio
Bureau of Workers' Compensation ("bureau") dated April 28, 2010 from "Mario D." to
Carleton Fitzpatrick, a vocational rehabilitation coordinator employed by a managed
No. 17AP-98                                                                     9


care organization ("MCO"). In the bureau memorandum that begins with "Hi Carleton,"
Mario D. states:
              IW's Voc Eligibility is confirmed but IW's Voc Feasibility
              remains questionable. Per the 4/20/10 DHO Order, IW is
              MMI. Dr. Trangle's 2/18/10 IME is referenced. Dr. Trangle
              reports that:

              [One] "IW's ambulatory status has progressed to the point
              that IW can now walk with a walker but that has not changed
              in the last 7 or 8 months."

              [Two] "IW has not continued on home based exercise
              therapy and finds it difficult to do so, which may indeed be
              true because of his massive obesity (6'2" and 453 lbs)."

              [Three] "The only treatment that would be of benefit to him
              would be a radical weight loss program and an aggressive PT
              program of 2 hrs/day and to reduce his caloric intake." "This
              combination may allow him to become more mobile." Please
              note, any Voc Rehab programming related to unallowed
              conditions, i.e. Weight Loss program, is limited to
              $2,000.00.

              [Four] IW has no High School Diploma nor GED.

              [Five] Unrelated medical conditions noted: Diabetes, HBP
              and High Cholesterol.

              The only RTW job restrictions on file are from the 2/18/10
              IME. These include:

              [One] "Clearly, at the moment he is able only to do a sitting
              job."

              [Two] "He cannot do any job that involves ambulating at all."

              [Three] "He cannot bend, lift or go up and down stairs. He
              cannot return to his job as a Corrections Officer."

              The most recent restrictions submitted by Dr. Bretenbach on
              3/15/10 "totally disable" the IW from working 3/15/-
              5/10/10.

              It's also important to note that "R Quadriceps Tear" has been
              specifically Disallowed.
No. 17AP-98                                                                          10


              If IW is deemed Feasible for Voc Rehab programming, please
              let us know who the assigned Voc Case Manager will be. If
              deemed Non-Feasible, please forward Voc Non-Feasibility
              Letter.

       {¶ 25} 9. The stipulated record contains a subsequent internal bureau
memorandum dated January 24, 2011 from "Mario D." The memorandum states:
              Hi Carleton,

              Based on authorization of IW's TT through 2/28/11, Voc
              Eligibility is confirmed. IW's Voc Feasibility is questionable.
              Please see the previous 4/28/10 response to Voc Rehab
              Eligibility Request. Voc Rehab Eligibility will be letter
              generated. Please forward copy of Voc Non-Feasibility
              Letter.

       {¶ 26} 10. By letter dated January 24, 2011, Carleton Fitzpatrick, on behalf of the
MCO and the bureau, informed relator:
              The Bureau of Workers Compensation (BWC) has
              determined that you are eligible for Voc Rehab services.
              However, review of your file indicates that you are not
              feasible to receive services at this time as a precursor to
              RTW. The non-feasibility status is based on your continued
              medical instability and POR recommendations.

       {¶ 27} 11. The record contains a letter dated March 30, 2015 to relator from
Crystal Apgar RN, a case manager employed by CompManagement Health Systems, Inc.
The letter informs relator:
              This correspondence is to inform you that your case
              management file is closed effective 3/30/15 for case
              management services only. This closure is not a closure of
              your BWC claim file or your case with CompManagement
              Health Systems. Should you need additional information
              regarding your closure to case management, you may contact
              me at the number listed below.

              Closure rationale: Medical Stability

       {¶ 28} 12. On March 23, 2016, relator filed an application for PTD compensation.
No. 17AP-98                                                                       11


      {¶ 29} 13. Earlier, on May 11, 2015, at the request of the bureau, relator was
examined by psychologist Kenneth Gruenfeld, Psy.D. In his five-page narrative report,
Dr. Gruenfeld responds to several queries:
              [Two] Can the injured worker return to his/her
              former position of employment? If yes, are there
              any restrictions or modifications?

              The claimant's mental health issues likely do prevent him
              from returning to his former position of employment. His
              problems with depression continue to manifest including
              problems with focus and motivation. It is believed that his
              problems with distractibility and motivation inhibit his
              ability to return to work at this time.

              [Three] Please provide a summary of any functional
              limitations solely due to the psychological condition
              in this claim. In other words, please indicate the
              type of work the injured worker can perform and
              supportive rational for your opinion.

              Given his current mental health issues, he is unlikely to
              thrive in a moderate to high stress job setting. He is more
              likely able to work a job in an office where there is less stress
              to trigger his depression.

              [Four] Are there any               recommendations           for
              vocational rehabilitation?

              Yes. Vocational rehabilitation is recommended at this time.

              [Five] Is the current treatment necessary and
              appropriate for the psychological condition(s)?

              The treatment, psychotherapy and medication management,
              are appropriate for the psychological condition of the
              claimant. In terms of necessity, it is believed by this
              examiner that the injured worker has achieved MMI and is
              no longer gaining additional benefits from psychotherapy.

(Emphasis sic.)
No. 17AP-98                                                                         12


       {¶ 30} 14. On June 5, 2015, at the bureau's request, relator was examined for the
allowed physical conditions of the claim by Paul T. Scheatzle, D.O. In his four-page
narrative report, Dr. Scheatzle states:
              HISTORY OF CLAIM: As you know, Mr. Pritt is a 59-year-
              old male seen today in independent medical evaluation. He
              was injured on 07/20/08 while working for Cuyahoga
              County as a corrections officer. On the day of injury, he fell
              in the kitchen on some chicken grease, tearing his left leg
              quadriceps tendon. He went to the hospital emergency
              department. Imaging has included x-rays and MRIs. He had
              a nursing home admission where he was on bed rest for
              several months with leg on leg immobilizer. He subsequently
              had repair of his left leg. He suffered another fall with
              subsequent tear of his right quadriceps tendon which
              required surgery as well. He developed postop infection
              requiring drainage per Dr. Leb.

              Currently, he complains of weakness and pain in both knees,
              left worse than right. He rates it as moderate, 6 to 8 out of
              10, frequent in nature. He had been on Percocet previously.
              Currently, he is on Ultram, improved with rest, ice, or
              Rollator walker. He had requested a power-assisted electric
              wheelchair for mobility, but it had not been obtained.

       {¶ 31} In his report, Dr. Scheatzle responds to several queries:
              The injured worker's condition has plateaued. He has
              received bilateral quadriceps rupture repairs. He has
              progressed to being able to ambulate with a Rollator walker.
              His condition has plateaued and is not expected to change
              further, and he has reached maximum medical
              improvement.

              ***

              [T]he injured worker cannot return to work at his former
              employment as a corrections officer. There are no
              restrictions or modifications that would allow him to return
              to this type of work.

              ***

              The functional limitations due to the physical conditions in
              the claim that would include sedentary activities, lifting up to
              10 pounds occasionally but no carrying activities, walk short
No. 17AP-98                                                                         13


              household distances up to 100 feet with a Rollator walker.
              No stair climbing, no bending or twisting activities. He can
              sit frequently or change positions as needed.

              ***

              There are no recommendations for vocational rehabilitation.

              ***

              [T]he current treatment is necessary and appropriate for
              allowed medical conditions in the claim.

              The injured worker has been maintained with chronic
              Ultram and Neurontin for pain management as well as
              aggressive pain management of his comorbidities. He has
              received dietetic counseling and counseling for associated
              depression.

              ***

              Recommendations for treatment would include ongoing
              encouragement for slow weight loss, increased daily walking
              activities, range of motion and strengthening exercises, ice
              modalities. These should be done on [a] daily basis.

       {¶ 32} 15. On August 14, 2015, at the employer's request, relator was examined
for the allowed physical conditions of the claim by Gordon Zellers, M.D. In his six-page
narrative report, Dr. Zellers opines:
              Clinically, based upon this patient's presentation as it relates
              to the body regions in question, it is readily apparent that he
              is unable to sustain remunerative employment activities in
              any capacity. This opinion specifically takes into
              consideration the fact that he is unable to safely perform
              and/or tolerate any significant standing/ambulatory
              activities; he is reporting significant refractory regional pain
              complaints and his regional limitations are now necessitating
              assistance with a number of routine activities of daily living
              (i.e. the patient is currently unable to drive, dress himself
              and/or use the restroom without assistance).

              Administratively, however, it must be emphasized that the
              patient's current physical claim allowances represent only a
              limited component of his regional physical presentation.
No. 17AP-98                                                                     14


              More specifically, the patient's unrelated/non-occupational
              conditions and in particular his history of morbid obesity
              greatly contribute to his inability to perform routine physical
              activities.

              ***

              Upon     acknowledging     the    significance   of    these
              unrelated/non-occupational conditions, it is more probable
              than not that in the absence of these unrelated/non-
              occupational conditions the patient's current physical claim
              allowances would not, in and of themselves, render him
              permanently and totally disabled from all forms of
              remunerative employment. In other words, in the absence of
              these numerous unrelated/non-occupational conditions it is
              more probable than not that this patient would be able to
              function in the work environment on at least a sedentary
              basis.

              ***

              [U]pon specifically acknowledging the limited nature of the
              patient's allowed conditions and the dramatic impact that
              the patient's unrelated/non-occupational conditions have
              had upon his general health, it is more probable than not
              that in the absence of the patient's unrelated/non-allowed
              conditions he would be able to function in the work
              environment on at least a sedentary basis.

              As a result, upon specifically taking into consideration only
              the physical conditions allowed for under the umbrella of
              this industrial claim and upon exclusion of the patient's
              numerous non-occupational factors, I am of the opinion that
              the patient's physical claim allowances, as set forth above, do
              not, in and of themselves, render this individual permanently
              and totally disabled from all forms of sustained remunerative
              employment. On the contrary, while this patient's allowed
              conditions do preclude him from resuming his original work
              activities as a corrections officer, they do not, in and of
              themselves, preclude his performance of modified gainful
              employment activities. As a result, I am of the opinion that
              the patient's physical claim allowances do not, in and of
              themselves, support and/or justify the request for permanent
              total disability as set forth above.
No. 17AP-98                                                                         15


      {¶ 33} 16. On August 27, 2015, at the employer's request, relator was examined by
psychologist Donald J. Tosi, Ph.D. In his seven-page report, Dr. Tosi opined:
              This claim is allowed for Major Depressive Disorder. The
              Injured Worker has multiple unrelated medical conditions
              pre and post-injury which, in my opinion, contributed
              heavily to his depressive inclinations (i.e., right testicle
              surgery, 2012; diabetes; hypertension; peptic ulcers, heart
              disease; cellulitis; and morbid obesity). The Injured Worker
              is prescribed multiple medications for these unrelated
              conditions (i.e., Metoprolol, Simvastatin, Torsemide,
              Lisinopril, Lantus, Humalog, and Fluticasone). Other
              significant life stressors are noted (Injured Worker's brother
              committed suicide ten years ago; academic difficulties;
              family history of alcoholism). From a psychological
              standpoint, this Injured Worker denies crying spells, never
              attempted suicide, and denies any suicidal ideation, plan, or
              intent. Psychomotor retardation/agitation are absent. At this
              time, the Injured Worker's depression is of mild severity and
              does not impair him clinically in his activities of daily living,
              cognitively, socially, or occupationally. He is capable of
              returning to sustained remunerative employment in any
              capacity, specific to the allowed psychological condition.

              ***

              The Injured Worker is not permanently and totally disabled
              from all forms of sustained remunerative employment,
              including that of Corrections Officer, as a direct and sole
              result of the allowed psychological condition.

      {¶ 34} 17. On November 13, 2015, at the commission's request, relator was
examined by psychologist Loren Shapiro, Ph.D.           In a nine-page narrative report,
Dr. Shapiro opines:
              Based on psychological functioning only, the IW is capable of
              work with no limitations. Psychological functioning would be
              within acceptable limits for any vocational task the IW would
              be capable of engaging in physically, in this writer's opinion,
              within psychological certainty.

      {¶ 35} 18. On November 13, 2015, Dr. Shapiro completed a form captioned
"Occupational Activity Assessment, Mental & Behavioral Examination." On the form,
No. 17AP-98                                                                         16


Dr. Shapiro indicated by a mark "[t]his Injured Worker has no work limitations." In the
space provided, Dr. Shapiro added:
              Based on psychological functioning only, the IW is capable of
              work with no limitations. Psychological functioning would be
              within acceptable limits for any vocational task the IW would
              be capable of engaging in physically, in this writer's opinion,
              within psychological certainty.

       {¶ 36} 19. On November 11, 2015, at the commission's request, relator was
examined by Eli Fink, M.D., who specializes in physical medicine and rehabilitation. In
his four-page narrative report, Dr. Fink opined:
              Mr. Pritt suffered bilateral quadriceps tendon repairs which
              were successfully repaired. He had several prolonged periods
              of forced immobilization due to the original injuries along
              with subsequent infections, contributing to lower limb
              weakness and dysfunction. Ambulation is markedly limited.
              Based solely on allowed conditions considered in this report,
              Mr. Pritt can perform sedentary work. He cannot operate
              foot controls. In the seated position, lifting is not limited.

              ***

              The Injured Worker is at MMI for all conditions considered
              in this report. No further significant improvement in
              function can reasonably be expected.

              ***

              It is my opinion that the combined whole person impairment
              for the allowed conditions considered in this report is 16%.

       {¶ 37} 20. On November 11, 2015, Dr. Fink completed a "Physical Strength
Rating."   On the form, Dr. Fink indicated by his mark that relator is capable of
"sedentary work." The form asks the examining physician "[f]urther limitations, if
indicated." In response, Dr. Fink wrote "[w]hile seated, lifting is not limited."
       {¶ 38} 21. Following a June 28, 2016 hearing, an SHO issued an order that
denies the PTD application. The SHO's order explains:
              This order is based upon the examination reports of Eli Fink,
              M.D., dated 11/11/2015, Loren Shapiro, Ph.D., dated
              11/13/2015, Paul Scheatzle, M.D., dated 06/15/2015,
No. 17AP-98                                                                    17


              Kenneth Gruenfeld, Psy.D., dated 05/21/2015, Gordon
              Zellers, M.D., dated 08/14/2015 and Donald Tosi, Ph.D.,
              dated 08/27/2015.

              Eli Fink, M.D., examined Injured Worker on behalf of the
              Industrial Commission for the allowed physical conditions
              on 11/11/2015 and found that the allowed conditions herein
              have reached a level of maximum medical improvement, that
              Injured Worker cannot return to his former position of
              employment of a corrections officer, however, found Injured
              Worker is capable of sedentary work.

              Sedentary work means exerting up to ten pounds of force
              occasionally (occasionally: activity or condition exists up to
              1/3 of the time) and/or a negligible amount of force
              frequently (frequently: activity or condition exists from 1/3
              to 2/3 of the time) to lift, carry, push, pull, or otherwise
              move objects. Sedentary work involves sitting most of the
              time, but may involve walking or standing for brief periods of
              time. Jobs are sedentary if walking and standing are required
              only occasionally and all other sedentary criteria are met.

              Paul Scheatzle, M.D., examined Injured Worker on behalf of
              the Bureau of Workers' Compensation on 06/05/2015 and
              found Injured Worker to have reached a level of maximum
              medical improvement, unable to return to his former
              position of employment but found Injured Worker capable of
              sedentary activities.

              Gordon Zellers, M.D., examined Injured Worker on behalf of
              the Employer on 08/14/2015 for the allowed physical
              conditions and opined that in absence of Injured Worker's
              significant unrelated and non-occupational conditions,
              Injured Worker would be able to function in the work
              environment on at least a sedentary basis.

              Loren Sharpiro, Ph.D., examined the Injured Worker on
              11/13/2015 on behalf of the Industrial Commission for the
              allowed psychological condition herein and opined the
              Injured Worker is at a level of maximum medical
              improvement and the Injured Worker is capable of work
              with no limitations. Dr. Shapiro opines psychological
              functioning would be within acceptable limits for any
              vocational task Injured Worker would be capable of engaging
              in physically.
No. 17AP-98                                                                      18


              Dr. Gruenfeld examined on behalf of the Bureau of Workers'
              Compensation on 05/11/2015 and further opined the Injured
              Worker has reached a level of maximum medical
              improvement for the allowed psychological condition. Dr.
              Gruenfeld indicates the Injured Worker is unable to return to
              his former position of employment as a corrections officer
              but can work a job in an office where there is less stress.

              Dr. Tosi examined on behalf of the Employer on 08/27/2015
              and finds the Injured Worker's depression is of mild severity
              and does not impair him clinically in the activities of daily
              living, cognitively, socially, or occupationally. Dr. Tosi finds
              the Injured Worker is capable of returning to sustained
              remunerative employment in any capacity, specific to the
              allowed psychological condition.

              Staff Hearing Officer accepts the findings of the above-listed
              examining physicians and finds the Injured Worker has
              reached maximum medical improvement for the allowed
              physical and psychological conditions in the claim. Staff
              Hearing Officer, however finds the medical impairment
              alone is not dispositive of the issue of permanent and total
              disability. Therefore, Staff Hearing Officer finds an analysis
              of Injured Worker's non-disability factors appropriate for
              consideration of Injured Worker's application for permanent
              and total disability.

              Staff Hearing Officer finds the Injured Worker is currently
              59 years of age. In general, age refers to one's chronological
              age and the extent to which one's age affects the ability to
              adapt to a new work situation and to do work in competition
              with others.

              Injured Worker has limited education having completed
              through the 11th grade without obtaining a high school
              diploma or GED equivalent. Injured Worker did attend ITT
              Technical College for a short period of time as noted within
              the examination report of Loren Shapiro, Ph.D., dated
              11/13/2015.

              Injured Worker further performed work in the semi-skilled
              and skilled categories.

              Semi-skilled work is work that needs some skills but does not
              require doing the more complex work duties. Semi-skilled
              jobs may require close attention to watching machine
No. 17AP-98                                                                    19


              processes or inspecting, testing, or otherwise looking for
              irregularities or tending or guarding equipment, property,
              material, or persons against loss, damage, or injury in other
              types of activities which are similarly less complex than
              skilled work but more complex than un-skilled work. A job
              may be classified as semi-skilled where coordination and
              dexterity are necessary as one['s] hands or feet must be
              moved quickly in a repetitive task.

              Skilled work is work that requires qualifications in which a
              person uses judgment or involves dealing with people,
              factors, or figures where substantial ideas at a high level of
              complexity. Skilled work may require qualifications in which
              a person uses judgment to determine the machine and
              manual operations to be performed in order to obtain the
              proper form, quality, or quantity to be produced. Skilled
              work may require laying out work, estimating quality,
              determining the suitability and needed quantities of
              materials, making precise measurements, reading blueprints
              or other specifications, or making necessary computations
              for mechanical adjustments or control or regulate work.

              Injured Worker's reported previous work experience
              includes building maintenance from 1971 through 1980
              where Injured Worker installed appliances, repaired drains,
              and performed basic plumbing, carpentry and electrical
              work. Injured Worker was required to have knowledge of
              general maintenance repair and use of hand tools in other
              equipment associated with this job. Injured Worker further
              worked as a correctional officer from 1980 through the date
              of injury which required Injured Worker to supervise
              inmates for 19 years requiring Injured Worker to maintain
              strict control and supervision of all activities of multiple
              individuals.

              Staff Hearing Officer finds the Injured Worker's age of 59
              and number of years of work demonstrates Injured Worker's
              long term employability and expectation that Injured Worker
              can adapt to new work situations in competition with others
              based on the allowed conditions in the claim.

              Injured Worker, while limited in education, can read, write
              and perform basic math functions. Injured Worker has a 38
              year work history performing general maintenance,
              handyman work and supervisory work which are deemed
              position [sic] vocational factors.
No. 17AP-98                                                                    20


              Injured Worker last worked on 07/20/2008. Injured Worker
              has not participated in rehabilitation services nor sought
              vocational retraining. Injured Worker was referred for rehab
              services in 2010 and 2011 but was found not feasible due to
              unrelated health conditions of morbid obesity and other
              unrelated medical conditions which include diabetes, high
              blood pressure and high cholesterol.

              The Staff Hearing Officer additionally finds Injured Worker's
              case management services were again closed effective
              03/30/2015 for medical instability without sufficient
              evidence as to whether the closure was for the allowed
              conditions or non-medical conditions preventing Injured
              Worker from progressing with further services. Finally,
              during the eight years since this injury, Injured Worker has
              made no attempt to improve his employment status by
              obtaining his GED or any further certifications.

              Staff Hearing Officer additionally finds the Injured Worker
              began receiving PERS disability for non-disclosed medical
              conditions in 2009 per Injured Worker's testimony which
              subsequently converted to regular PERS retirement based on
              Injured Worker's years of service. Staff Hearing Officer,
              therefore, also finds that it cannot be determined whether
              Injured Worker's removal from the workforce is causally
              related to the allowed conditions in this claim.

              Staff Hearing Officer finds the Injured Worker has unrelated
              medical conditions of morbid obesity, greater than 400
              pounds, diabetes, heart disease, cellulitis, hypertension,
              gastroesophageal reflux disease and hypercholesterolemia.

              Staff Hearing Officer finds the evidence presented fails to
              support that Injured Worker's lack at attempted vocational
              retraining was due to the allowed conditions in the claim
              versus the unrelated medical conditions.

              Staff Hearing Officer further finds that the medical opinion
              of Dr. Zellers indicates that absent the unrelated medical and
              non-occupational conditions, Injured Worker could
              participate in vocational retraining.

              Staff Hearing Officer finds this opinion persuasive given the
              Injured Worker's positive vocational factors as noted above.
              Staff Hearing Officer finds that based upon the Injured
              Worker's lengthy work history documenting a positive work
No. 17AP-98                                                                           21


              ethic and demonstrated ability to maintain employment
              involving supervisory duties, that Injured Worker has
              transferable skills that would allow him to perform work in
              the sedentary category consistent with the reports of Dr(s).
              Fink, Scheatzle, and Zellers.

              Accordingly,    Staff   Hearing    Officer   finds     the
              contemporaneous medical evidence fails to support that the
              allowed conditions render Injured Worker permanently
              totally disabled and the application filed 03/29/2016 is
              denied.

Conclusions of Law:
      {¶ 39} At issue are six paragraphs of the 26 paragraph order of the SHO denying
the PTD application. Those six paragraphs address: (1) the 2010 and 2011 referral for
rehabilitation services that was found not to be feasible; (2) the March 30, 2015 closure
of relator's case management file due to medical instability; (3) the so-called "non-
disclosed medical conditions" supporting a Public Employees Retirement System
("PERS") disability finding; (4) a listing of unrelated medical conditions; (5) an alleged
failure to show whether the failure to undergo vocational retraining was caused by the
allowed conditions or unrelated medical conditions; and (6) Dr. Zeller's opinion that the
allowed conditions permit vocational retraining.
      {¶ 40} The main issue is whether the six paragraphs are severable from the order
such that the remainder of the order stands as a valid and unchallenged finding that
denies the PTD application.
      {¶ 41} Finding that the six paragraphs of the order are severable from the
remainder of the order, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
                  Basic Law: Non-Allowed Medical Conditions
      {¶ 42} In a seminal case, the Supreme Court of Ohio held that non-allowed
conditions cannot be used to advance or defeat a claim for compensation. State ex rel.
Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). The mere presence of a non-
allowed condition in a claim for compensation does not in itself destroy the
compensability of the claim, but the claimant must meet his burden of showing that an
No. 17AP-98                                                                              22


allowed condition independently caused the disability. State ex rel. Bradley v. Indus.
Comm., 77 Ohio St.3d 239, 242 (1997).
      {¶ 43} While it is the claimant's responsibility to establish a causal relationship
between his allowed conditions and his claimed disability, he is not required to disprove
a negative. State ex rel. Ignatious v. Indus. Comm., 99 Ohio St.3d 285, 2003-Ohio-
3627, ¶ 33. That is, having supplied evidence of a direct causal relationship between an
allowed condition and his disability, a claimant is not required to further show that a
non-allowed condition is not causing his inability to work. Id. That is, the claimant
does not have the burden of proof regarding the non-allowed conditions. Id. at 32.
                                         Analysis
      {¶ 44} Contrary to Ignatious, the SHO's order of June 28, 2016, strongly suggests
that the SHO placed a burden on relator to disclose the medical conditions supporting
his PERS disability award and further to show that any non-allowed conditions are not
causing an inability to perform sustained remunerative employment. This was clearly
an error of the SHO's order.
      {¶ 45} As   earlier   noted,   non-allowed       conditions   do   not   destroy   the
compensability of the claim. Bradley. To the extent that non-allowed conditions are the
bases for a PERS disability award, those non-allowed conditions, whatever they may be,
cannot destroy the compensability of the claim. That the evidence fails to disclose the
medical conditions supporting the PERS disability award is irrelevant to the
commission's duty to determine the PTD application. Thus, it is incorrect for the SHO
to suggest that the PTD application cannot be granted in the absence of disclosure of the
PERS medical conditions.
                                        Severability
      {¶ 46} Ohio Adm.Code 4121-3-34 sets forth the commission's rules regarding the
adjudication of PTD applications.
      {¶ 47} Ohio Adm.Code 4121-3-34(D) sets forth the commission's guidelines for
the adjudication of PTD applications.
      {¶ 48} Ohio Adm.Code 4121-3-34(D)(2) provides:
              (b) If, after hearing, the adjudicator finds that the injured
              worker, based on the medical impairment resulting from the
No. 17AP-98                                                                           23


              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. * * *

              (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.

       {¶ 49} It is clear that the SHO denied the PTD application based on Ohio
Adm.Code 4121-3-34(D)(2)(b) and (c).
       {¶ 50} Stating reliance on the reports of Drs. Fink, Scheatzle, Zellers, Shapiro,
Gruenfeld, and Tosi, the SHO determined that residual functional capacity permitted
sustained remunerative employment and that an analysis of the non-medical factors was
necessary. It can be noted that the relied on physicians who examined only for the
allowed physical conditions (Drs. Scheatzle, Zellers, and Fink) universally opined that
the industrial injury permits sedentary employment.
       {¶ 51} The relied on psychologists (Drs. Gruenfeld, Tosi, and Shapiro) universally
opined that the depressive disorder permits sustained remunerative employment.
       {¶ 52} Dr. Gruenfeld opined that relator "is more likely able to work a job in an
office where there is less stress to trigger his depression."
       {¶ 53} Dr. Tosi opined that relator's depressive disorder "is of mild severity" and
that "[h]e is capable of returning to sustained remunerative employment in any
capacity."
       {¶ 54} Dr. Shapiro opined that relator "is capable of work with no limitations."
No. 17AP-98                                                                          24


       {¶ 55} Given the determination of residual functional capacity, the SHO
undertook an analysis of the non-medical factors. In that analysis, the SHO considered
relator's age of 59 years, his limited 11th grade education, his 38 year work experience
which includes "building maintenance" and supervising inmates as a corrections officer.
       {¶ 56} The SHO concluded:
               Staff Hearing Officer finds that based upon the Injured
               Worker's lengthy work history documenting a positive work
               ethic and demonstrated ability to maintain employment
               involving supervisory duties, that Injured Worker has
               transferable skills that would allow him to perform work in
               the sedentary category consistent with the reports of Dr(s).
               Fink, Scheatzle, and Zellers.

       {¶ 57} Significantly, relator concedes that the SHO appropriately determined
residual functional capacity. Relator here states:
               Relator does not intend to quarrel with the SHO's finding
               that he had reached maximum medical improvement, could
               no longer return to his former position of employment as a
               corrections officer, but is capable of sedentary work. * * *
               Some evidence supports those determinations in the form of
               the reports that were prepared by Eli Fink, M.D., Paul
               Scheatzle, M.D., and George Zellers, M.D. * * * Loren
               Shapiro, Ph.D., had concluded that Relator could work
               without any limitations, but only with regard to
               psychological functioning. * * * That was also the same
               limited opinion that was furnished by the Employer's
               psychologist, Donald J. Tosi, Ph.D. * * *

               The SHO thus properly proceeded to consider the non-
               disability factors.

(Relator's brief at 10-11.)

       {¶ 58} It is clear that the SHO determined that relator is capable of sustained
remunerative employment based on the relied on medical evidence and an analysis of
the non-medical factors such as age, education, and work record.              This was a
determination rendered under Ohio Adm.Code 4121-3-34(D)(2)(b) and (c). That relator
failed to enter a vocational rehabilitation program, for whatever reason, does not detract
from the SHO's analysis that relator is able to perform sustained remunerative
No. 17AP-98                                                                         25


employment based on the relied on medical evidence and consideration of the non-
medical factors.
      {¶ 59} Given the above analysis, the magistrate concludes that the six paragraphs
of the SHO's order previously identified are severable from the remainder of the order.
See State ex rel. Barnett v. Indus. Comm., 10th Dist. No. 14AP-628, 2015-Ohio-3898.
      {¶ 60} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.


                                              /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).
