[Cite as State ex rel. Nationwide Children's Hosp. v. Indus. Comm., 2018-Ohio-1806.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel.                                      :
Nationwide Children's Hospital,
                                                       :
                Relator,
                                                       :
v.                                                                              No. 17AP-399
                                                       :
The Industrial Commission of Ohio, et al.,                                (REGULAR CALENDAR)
                                                       :
                Respondents.
                                                       :


                                           D E C I S I O N

                                      Rendered on May 8, 2018


                 Vorys, Sater, Seymour and Pease LLP, and Corrine S.
                 Carman, for relator.

                 Michael DeWine, Attorney General, and Sherry M. Phillips,
                 for respondent Industrial Commission of Ohio.

                 Thomas Tootle, for respondent Sheila Broomfield.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.
        {¶ 1} Nationwide Children's Hospital filed this action in mandamus, seeking a writ
to compel the Industrial Commission of Ohio ("commission") to vacate its orders granting
permanent total disability ("PTD") compensation to Sheila Broomfield.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, this case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the
pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision,
No. 17AP-399                                                                               2


appended hereto, which contains detailed findings of fact and conclusions of law. The
magistrate's decision recommends that we grant a limited writ of mandamus, compelling
the commission to vacate the award of PTD compensation and conduct further proceedings
centered on Broomfield's ability to develop new skills such that she could, in the future,
engage in sustained remunerative employment.
       {¶ 3} Counsel for the commission has filed objections to the magistrate's decision.
Counsel for Broomfield has also filed objections to the magistrate's decision. Both of these
sets of objections assert that no writ should be granted. Counsel for Nationwide Children's
Hospital has filed memoranda in response to the objections.
       {¶ 4} The case is now before the court for a full, independent review.
       {¶ 5} Broomfield is a woman in her mid-60s who was seriously injured on the job.
The injury led to very serious psychological problems, specifically major depressive
disorder. Both counsel for the commission and counsel for Broomfield point out that the
key case on which our magistrate relied, B.F. Goodrich v. Indus. Comm., 73 Ohio St.3d 525
(1995), did not involve a claimant who had serious psychological problems and did not
involve a claimant who had reached retirement age. Their points are well made.
       {¶ 6} Broomfield did not complete high school but still found employment as a
secretary, retail associate, and key punch operator.
       {¶ 7} There is no longer a demand for key punch operators. Her psychological
problems make it impossible for her to interact with other people on a sustained basis. Her
part-time employment history provides no future employment potential.
       {¶ 8} The commission recognized the fact that Broomfield had no transferable
skills and could not reasonably be expected to develop new ones, given her age and
psychological challenges. Although we understand our magistrate's intention to follow the
B.F. Goodrich case, we agree with the observation of both counsel for the commission and
counsel for Broomfield that the facts in Broomfield's claims are too different from the facts
in the B.F. Goodrich case for its decision to bind us here.
       {¶ 9} We are also required to give a certain amount of deference to the commission
on its factual findings. In this case, we cannot disagree with the commission's finding that
Broomfield is permanently and totally disabled. We sustain both sets of objections to the
No. 17AP-399                                                                                3


magistrate's decision. We adopt the findings of fact in the magistrate's decision, but not the
conclusions of law. As a result, we deny the request for a writ of mandamus.
                                                         Objections sustained; writ denied.

                            KLATT and DORRIAN, JJ., concur.
No. 17AP-399                                                                                 4


                                   APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

The State ex rel.                              :
Nationwide Children's Hospital,
                                               :
              Relator,
                                               :
v.                                                                   No. 17AP-399
                                               :
The Industrial Commission of Ohio, et al.,                     (REGULAR CALENDAR)
                                               :
              Respondents.
                                               :


                          MAGISTRATE'S DECISION

                              Rendered on December 20, 2017


              Vorys, Sater, Seymour and Pease LLP, and              Corrine S.
              Carman, for relator.

              Michael DeWine, Attorney General, and Sherry M. Phillips, for
              respondent Industrial Commission of Ohio.

              Thomas Tootle, for respondent Sheila Broomfield.


                                      IN MANDAMUS

       {¶ 10} Following a May 3, 2016 hearing, the three-member Industrial Commission
of Ohio ("commission") mailed two separate orders on June 22, 2016 that each exercised
continuing jurisdiction over an order of a staff hearing officer ("SHO") mailed February 23,
2016 that had granted the application for permanent total disability ("PTD") compensation filed
by respondent Sheila Broomfield ("claimant").
       {¶ 11} In this original action, relator, Nationwide Children's Hospital, Inc., requests
a writ of mandamus ordering the commission to vacate that portion of each of the two
No. 17AP-399                                                                             5


orders that awarded PTD compensation, and to enter amended orders that deny PTD
compensation.
Findings of Fact:
       {¶ 12} 1. On February 1, 2010, claimant injured her left shoulder and cervical area
while employed as a secretary for relator, a self-insured employer under Ohio's workers'
compensation laws. The injury occurred when she was lifting a fire gate.
       {¶ 13} 2. The industrial claim (No. 10-829097) is allowed for:
              Left shoulder sprain/strain; glenoid labral tear left shoulder;
              subscapularis tear left shoulder; subscapularis tendinosis left
              shoulder; cervical strain; substantial aggravation of pre-
              existing left glenohumeral joint osteoarthritis; herniation C5-
              6; C5-6 radiculopathy; major depressive disorder.

       {¶ 14} 3. Claimant received temporary total disability ("TTD") compensation based
on her "major depressive disorder."
       {¶ 15} 4. On January 31, 2014, relator moved for termination of TTD compensation.
       {¶ 16} 5. Following a March 12, 2014 hearing, a district hearing officer ("DHO")
issued an order terminating TTD compensation as of the hearing date. The DHO's order
states reliance on "the 01/20/2014 report of Dr. Murphy."
       {¶ 17} 6. Claimant administratively appealed the DHO's order of March 12, 2014.
       {¶ 18} 7. Following an April 28, 2014 hearing, an SHO issued an order affirming the
DHO's order of March 12, 2014. The SHO's order held that the allowed psychological
condition had reached maximum medical improvement ("MMI") and, therefore, TTD was
terminated effective March 12, 2014 based on the "01/20/2014 report of Dr. Murphy."
       {¶ 19} 8. On July 7, 2014, treating psychologist John M. Malinky, Ph.D., wrote to
claimant's counsel:
              I saw Ms. Broomfield initially on 6/1/2013 and she was last
              seen on 6/7/2014. She is being treated for her allowed Major
              Depression. She is cooperative and compliant with treatment.

              ***

              It is my professional opinion, with a reasonable degree of
              psychological certainty, that Ms. Broomfield is not able to
              maintain attention and concentration for extended periods of
              time. She does not have the ability to complete a normal work
No. 17AP-399                                                                            6


              day and work week without interruptions from
              psychologically based symptoms and to perform at a
              consistent pace without an unreasonable number and length
              of rest periods. She does not have the ability to respond
              appropriately to changes in a work setting.

              It is my professional opinion, with a reasonable degree of
              psychological certainty, that Ms. Broomfield is permanently
              and totally impaired from all sustained remunerative
              employment due to her allowed Major Depression which was
              caused by her February 1, 2010 industrial injury.

       {¶ 20} 9. Two days later, on July 9, 2014, Dr. Malinky again wrote to claimant's
counsel:
              Ms. Broomfield requires six sessions of individual
              psychotherapy for the next six months. This is based on her
              signs, symptoms and restricted levels of daily activity. Her
              depression can be reduced to mild levels. Her concentration
              and attention can be improved. Her physical stamina can
              increase. She can leave the house more frequently and her
              social activities can increase.

       {¶ 21} 10. On July 8, 2015, Charmaine M. Blair, M.D., wrote:

              It is my opinion that Ms. Broomfield is a candidate for
              permanent total disability, due to her serious left shoulder
              injury and resulting impairments associated with injury.
              Ms. Broomfield has been permanently unable to perform
              sustained employment as a result of multiple issues including:
              Left shoulder glenoid labral tear, left shoulder subscapularis
              tear, left shoulder subscapularis tendinosis, substantial
              aggravation of pre-existing left glenohumeral joint
              osteoarthritis, disc herniation at C5-6, cervical radiculopathy,
              left shoulder sprain/strain and cervical strain.

              ***

              It is my belief that due to length of time patient has shown no
              improvement in her objective clinical finding and subjective,
              permanent complaints that are consistent with her exam, she
              is considered permanently, totally disabled.

       {¶ 22} 11. On July 28, 2015, claimant filed an application for PTD compensation. In
support, claimant submitted the July 8, 2015 report of Dr. Blair.
No. 17AP-399                                                                          7


      {¶ 23} 12. On September 2, 2015, at relator's request, claimant was examined by
psychiatrist Richard H. Clary, M.D. In his six-page narrative report, dated September 3,
2015, Dr. Clary opined:
             In my medical opinion, Ms. Broomfield has reached MMI for
             the allowed psychiatric condition in the claim.

             [One] In my medical opinion, the allowed condition of Major
             Depressive Disorder does not cause any limitations or
             restrictions in her ability to work. In my medical opinion, her
             major depressive disorder is mild.

             [Two] In my medical opinion, the allowed psychiatric
             condition in the claim would not cause any limitations or
             restrictions in her ability to work.

             [Three] In my medical opinion, the allowed psychiatric
             condition in the claim would cause a 10 percent permanent
             partial impairment of the whole person based on the AMA
             Guides Fifth and Second Edition.

      {¶ 24} 13. On September 8, 2015, at relator's request, claimant was examined by
David C. Randolph, M.D., who examined for the allowed physical conditions of the claim.
In his 28-page narrative report, Dr. Randolph opined:
             The allowed conditions would limit her ability to perform
             overhead and forceful use of her left upper extremity and
             perform repetitive activity involving her neck.

             The allowed conditions would not restrict her ability to sit,
             stand, or walk, bend, twist, or stoop. She would be capable of
             lifting and carrying objects weighing up to 20 pounds
             primarily utilizing her right upper extremity with her left for
             assistance.

             The clinical record contained herein would indicate that her
             work absence has been secondary to a vast array of unallowed
             and unrelated clinical problems.

      {¶ 25} 14. On October 20, 2015, at the commission's request, claimant was
examined by James H. Rutherford, M.D., who specializes in orthopedics. In his eight-page
narrative report, dated October 27, 2015, Dr. Rutherford opined:
No. 17AP-399                                                                        8


             It is my opinion that Ms. Broomfield has reached maximum
             medical improvement concerning the orthopedic claim
             allowances.

             * * * Concerning only the orthopedic claim allowances of
             Claim #10-929097, it is my medical opinion that
             Ms. Broomfield is capable of work, but she is limited to
             sedentary activities with some additional restrictions. Ms.
             Broomfield, based only on her orthopedic claim allowances,
             can lift and carry 10 lbs. occasionally using both hands, but
             she can only lift and carry up to 4 lbs. with her left upper
             extremity. She can do no overhead work activity with her left
             shoulder. She can do no repetitive pushing or pulling for work
             activity with her left shoulder. She could also do no rapid,
             repetitive, continuous production rate work activity with her
             left upper extremity.

             Ms. Broomfield also cannot do any repetitive motion with her
             neck for work activity. She can drive for her own
             transportation, but she cannot drive heavy equipment. Based
             only on her orthopedic claim allowances, she has no limitation
             on standing and walking.

             Again, I am giving no opinion concerning the psychological
             claim allowance of major depressive disorder.

      {¶ 26} 15. On November 5, 2015, at the commission's request, claimant was
examined by psychologist Todd Finnerty, Psy.D. In his six-page narrative report, dated
November 9, 2015, Dr. Finnerty states:
             REVIEW OF FOUR FUNCTIONAL AREAS:

             ADL/TYPICAL DAY: Moderately impaired
             She reported being able to get out of the house on a daily basis
             but that she spends most of her time in her room.

             SOCIAL FUNCTIONING: Moderately impaired
             She noted spending much of her time alone in her bedroom.
             She reported others describing her as "mean."

             CONCENTRATION, PERSISTENCE, AND PACE:
             Moderately impaired
             She would have some persistence and pace concerns
             associated with the limited energy resulting from her
             depression.
No. 17AP-399                                                                       9



             ADAPTATION: Moderately impaired
             She has not been pursuing any treatment for depression and
             yet despite this has not evidenced any significant psychiatric
             decompensations or requirements for intensive interventions
             such as a hospitalization. She does not have suicidal ideation.

             ***

             The injured worker's MAJOR DEPRESSIVE DISORDER
             continues to be at MMI as evidenced by her maintaining her
             level of functioning despite a lack of treatment pursuit. Her
             current level of functioning does not appear to be significantly
             different than what was reported to Dr. Clary.

                     ADL/TYPICAL DAY: This is a Class 3 Moderate
                      impairment (25%)
                     SOCIAL FUNCTIONING: This is a Class 3 Moderate
                      impairment (25%)
                     CONCENTRATION,           PERSISTENCE,         AND
                      PACE: This is a Class 3 Moderate impairment (25%)
                     ADAPTATION: This is a Class 3 Moderate
                      impairment (25%)

             OVERALL IMPAIRMENT RATING: The injured worker's
             Percentage of Whole Person Impairment from MAJOR
             DEPRESSIVE DISORDER is a Class 3 Moderate impairment
             (25%)

             ***

             She maintains the capacity to sustain a static set of tasks
             without fast pace or frequent changes which might lead to
             maladaptive responses to stress; she can interact with others
             briefly and superficially.

(Emphasis sic.)

      {¶ 27} 16. On November 9, 2015, Dr. Finnerty completed a form captioned
"Occupational Activity Assessment, Mental & Behavioral Examination." On the form, Dr.
Finnerty indicated by his mark "[t]his Injured Worker is capable of work with the
limitation(s)/modification(s) noted below."
      {¶ 28} In the space provided, Dr. Finnerty wrote in his own hand:
No. 17AP-399                                                                        10


             The following limitations are in addition to any noted in the
             report.

             The Injured Worker retains the capacity to sustain a static set
             of tasks without fast pace or frequent changes which might
             lead to maladaptive responses to stress; she can interact with
             others briefly and superficially.

      {¶ 29} 17. Following a February 4, 2016 hearing, an SHO mailed an order on

February 13, 2016 that granted the PTD application.

             The SHO's order of February 4, 2016 (mailed February 13, 2016) explains:
             After full consideration of the issue it is the order of the Staff
             Hearing Officer that the Injured Worker's IC-2 Application for
             Permanent Total Disability Compensation is granted.
             Permanent total disability compensation is awarded
             from 07/14/2014 * * *.

             Permanent and total disability compensation is awarded from
             07/14/2015 for the reason that this is the date of the report
             from John Malinky, Ph.D.

             Based upon the report(s) of Charmaine Blair, M.D.
             (07/08/2015) and John Malinky, Ph.D., (07/07/2014), it is
             found that the Injured Worker is unable to perform any
             sustained remunerative employment solely as a result of the
             medical impairment caused by the allowed condition(s).
             Therefore, pursuant to State ex rel. Speelman v. Indus. Comm.
             (1992), 73 Ohio App.3d 757, it is not necessary to discuss or
             analyze the Injured Worker's non-medical disability factors.

      {¶ 30} 18. On or about February 17, 2016, claimant's counsel completed a form
provided by the commission. The form is captioned "Request For Corrected Order." The
purpose of the form is explained by the form: "This form is to be used to request a
correction of a clerical or typographical error contained in an Industrial Commission
order."
      {¶ 31} The form asks the requestor to identify the error. On the form, claimant's
counsel responded:
             PTD is awarded from 7/14/15[.] [T]he date of Dr. Malinky's
             report should read 7/7/14 which is the date of Dr. Malinky's
             report. Date also needs corrected in 1st paragraph.
No. 17AP-399                                                                             11



              19. On February 23, 2016, the SHO mailed a "Corrected Order," stating:
              THE CORRECT START DATE OF THE AWARD OF
              PERMANENT TOTAL DISABILITY IN THIS CLAIM IS
              07/14/2014.

              Permanent and total disability compensation is awarded from
              07/14/2014 for the reason that this is the date of the report
              from John Malinky, Ph.D.

              Based upon the report(s) of Charmaine Blair, M.D.
              (07/08/2015) and John Malinky, Ph.D., (07/07/2014), it is
              found that the Injured Worker is unable to perform any
              sustained remunerative employment solely as a result of the
              medical impairment caused by the allowed condition(s).
              Therefore, pursuant to State ex rel. Speelman v. Indus. Comm.
              (1992), 73 Ohio App.3d 757, it is not necessary to discuss or
              analyze the Injured Worker's non-medical disability factors.

       {¶ 32} 20. On or about March 9, 2016, claimant's counsel completed another
"Request For Corrected Order." The form asks the requestor to identify the error. In
response, claimant's counsel wrote: "Corrected order is still wrong. Dr. Malinky's report
date is 7/7/14 and that is what the start date of PTD should read and not 7/14/14 as
indicated."
       {¶ 33} On the form, the hearing officer is asked to indicate by his/her mark whether
the "Request for Corrected Order" is "granted or denied." On the form, the hearing officer
marked the box to indicate that the request is denied. The form asks the hearing officer to
explain. In response, the hearing officer wrote on March 10, 2016: "A request for
reconsideration is pending before the commission. No jurisdiction to correct the SHO
order."
       {¶ 34} 21. Earlier, on February 26, 2016, relator moved for reconsideration of the
SHO's order mailed February 13, 2016 and the SHO's corrected order mailed February 23,
2016, both of which granted the PTD application.         Relator also filed a multi-page
memorandum in support. The cover page of the motion states:
              The SHO order of February 23, 2016 awarding permanent
              total disability "PTD" compensation contains the following
              mistakes of law which necessitate that the order be vacated,
              and claimant's application for PTD be re-set for hearing
No. 17AP-399                                                                          12


             before the Commission. The reasons in support of this request
             for reconsideration, including the identification of relevant
             documents and proof, are more fully set forth in the following
             Memorandum.

             GROUNDS        UPON      WHICH        RECONSIDERATION       IS
             SOUGHT:

             [One] The order awarding PTD violates [State ex rel. Noll v.
             Indus. Comm., 57 Ohio St.3d 203 (1991)] and OAC 4121-3-
             34(D)(3)(h) in that it merely recites the evidence relied upon
             and does not contain the reasons explaining the decision.

             [Two] The July 8, 2015 report of Charmaine M. Blair, M.D.
             opines that claimant is PTD as a result of "multiple issues,"
             and is not "some evidence" of permanent total medical
             impairment directly from the allowed conditions of the claim.
             See, State, ex rel. Waddle v. Indus. Comm. (1993), 67 Ohio
             St.3d 452.

             [Three] The July 7, 2014 report of John Malinky, Ph.D., is
             equivocal, and not "some evidence" of PTD because it is
             repudiated in his July 9, 2014 report. See, State ex rel.
             Eberhardt v. Flxible Corp. (1994) 70 Ohio St.3d 649.

(Footnote omitted.) (Emphasis sic.)

      {¶ 35} 22. On April 8, 2016, the three-member commission mailed two
interlocutory orders.   One interlocutory order addressed relator's February 26, 2016
motion or request for reconsideration. The other interlocutory order addressed claimant's
March 9, 2016 "Request For Corrected Order," which was treated as a request for
reconsideration.
      {¶ 36} 23. The interlocutory order that addressed relator's February 26, 2016
motion or request for reconsideration explained:
             The Employer's Request for Reconsideration, filed
             02/26/2016, from the Staff Hearing Officer order, issued
             02/23/2016, is referred to the Commission Level Hearings
             Section to be docketed before the Members of the Industrial
             Commission. The issues to be heard are:

             [One] Issue:
No. 17AP-399                                                                         13


             [One] Continuing Jurisdiction Pursuant To R.C. 4123.52
             [Two] Permanent Total Disability

             It is the finding of the Industrial Commission the Employer
             has presented evidence of sufficient probative value to
             warrant adjudication of the Request for Reconsideration
             regarding the alleged presence of a clear mistake of fact in the
             order from which reconsideration is sought, and a clear
             mistake of law of such character that remedial action would
             clearly follow.

             Specifically, it is alleged the Staff Hearing Officer erred in
             relying upon the report of Charmaine Blair, M.D., dated
             07/08/2015, as being some evidence of permanent total
             impairment stemming directly from the allowed physical
             conditions because Dr. Blair attributed the Injured Worker's
             impairment to multiple issues. It is further alleged the Staff
             Hearing Officer erred in relying upon the report of John
             Malinky, Ph.D., dated 07/07/2014, because the report was
             repudiated by Dr. Malinky's subsequent report dated
             07/09/2014.

             Based on these findings, the Industrial Commission directs
             the Employer's Request for Reconsideration, filed
             02/26/2016, be set for hearing to determine whether the
             alleged clear mistakes of fact and law as noted herein are
             sufficient for the Industrial Commission to invoke its
             continuing jurisdiction.

      {¶ 37} 24. The interlocutory order that addressed claimant's March 9, 2016 request
for reconsideration explained:
             The Injured Worker's Request for Reconsideration, filed
             03/09/2016, from the Staff Hearing Officer order, issued
             02/23/2016, is referred to the Commission Level Hearings
             Section to be docketed before the Members of the Industrial
             Commission. The issues to be heard are:

             [One] Issue:

             [One] Continuing Jurisdiction Pursuant To R.C. 4123.52
             [Two] Permanent Total Disability

             It is the finding of the Industrial Commission the Injured
             Worker has presented evidence of sufficient probative value
             to warrant adjudication of the Request for Reconsideration
No. 17AP-399                                                                        14


             regarding the alleged presence of a clear mistake of fact in the
             order from which reconsideration is sought, and a clear
             mistake of law of such character that remedial action would
             clearly follow.

             Specifically, it is alleged the Staff Hearing Officer mistakenly
             determined 07/14/2014 to be the start date of payment of
             permanent total disability compensation, instead of
             07/07/2014, which is the date of the report of John Malinky,
             Ph.D., upon which the Staff Hearing Officer relied.

             Based on these findings, the Industrial Commission directs
             the Injured Worker's Request for Reconsideration, filed
             03/09/2016, be set for hearing to determine whether the
             alleged clear mistakes of fact and law as noted herein are
             sufficient for the Industrial Commission to invoke its
             continuing jurisdiction.

      {¶ 38} 25. On May 3, 2016, the three-member commission heard relator's
February 26, 2016 motion for reconsideration and claimant's March 9, 2016 request for
reconsideration.
      {¶ 39} 26. Following the May 3, 2016 hearing, the commission mailed two orders
on June 22, 2016.
      {¶ 40} 27. One order of the commission granted relator's February 26, 2016 motion
for reconsideration and exercised continuing jurisdiction over the SHO's order mailed
February 23, 2016. Vacating the SHO's order mailed February 23, 2016, the commission
order explained:
             [I]t is the finding of the Industrial Commission the Employer
             has met its burden of proving the Staff Hearing Officer order,
             issued 02/23/2016, contains a clear mistake of fact from
             which reconsideration is sought and a clear mistake of law of
             such character that remedial action would clearly follow.
             Specifically, the Staff Hearing Officer mistakenly based his
             order upon the opinion of John Malinky, Ph.D., whose
             07/07/2014 narrative regarding permanent total disability
             was repudiated by the 07/09/2014 narrative regarding
             Dr. Malinky's expectation of improvement following
             treatment. Therefore, the Commission exercises continuing
             jurisdiction pursuant to R.C. 4123.52.
No. 17AP-399                                                                          15


       {¶ 41} 28. The other order of the commission granted claimant's March 9, 2016
request for reconsideration and likewise exercised continuing jurisdiction over the SHO's
order mailed February 23, 2016. Likewise vacating the SHO's order mailed February 23,
2016, the commission order explained:
             [I]t is the finding of the Industrial Commission the Injured
             Worker has met her burden of proving the Staff Hearing
             Officer order, issued 02/23/2016, contains a clear mistake of
             fact from which reconsideration is sought and a clear mistake
             of law of such character that remedial action would clearly
             follow. Specifically, the Staff Hearing Officer erroneously
             started permanent total disability compensation on
             07/14/2014, instead of 07/07/2014, which is the date of the
             report of John Malinky, Ph.D., upon which the start date was
             based. Therefore, the Commission exercises continuing
             jurisdiction pursuant to R.C. 4123.52.

       {¶ 42} 29. The two commission orders mailed June 22, 2016 (following the May 3,
2016 hearing), separately grant the PTD application on a two-to-one commission vote.
Each of the two orders present identical explanations for granting the application as
follows:
             It is the order of the Commission the IC-2, Application for
             Compensation for Permanent Total Disability, filed
             07/28/2015, is granted.

             Permanent total disability compensation is awarded from
             10/20/2015 (less any compensation that previously may have
             been awarded over the period), and is to continue without
             suspension unless future facts or circumstances should
             warrant the stopping of the award. The award is to be paid in
             accordance with R.C. 4123.58(A).

             Relying upon the opinions of James Rutherford, M.D., and
             Todd Finnerty, Psy.D., the Commission finds the allowed
             conditions prevent the Injured Worker's return to her former
             positions of employment. In his report dated 10/27/2015,
             from the examination conducted on 10/20/2015,
             Dr. Rutherford concluded the Injured Worker is limited to
             sedentary occupations with further restrictions on lifting and
             carrying ten pounds, occasionally using both hands and lifting
             and carrying up to four pounds with the left upper extremity.
             Dr. Rutherford advised against the use of the left shoulder for
             overhead work, repetitive pushing or pulling, or rapid,
No. 17AP-399                                                                   16


           repetitive, and continuous production rate work. Regarding
           the neck, Dr. Rutherford advised against repetitive motion
           with the neck or driving heavy equipment. In his report dated
           11/09/2015, from the examination conducted on 11/05/2015,
           Dr. Finnerty concluded the Injured Worker remains capable
           of work comprising a static set of tasks without a fast pace or
           frequent changes. Dr. Finnerty further concluded the Injured
           Worker may only interact with others briefly and superficially.

           The Injured Worker's employment history included: data
           entry (1981-1994); retail clerk (1994-1997); and secretary (two
           positions, the first from 1999-2007 and the second from
           2007-2010). As a data entry operator, the Injured Worker
           utilized a keypunch machine to input information. The
           Injured Worker was required to frequently lift up to 25
           pounds. Keypunch machines are antiquated, and the Injured
           Worker has no transferable skills from this position. While the
           Injured Worker did not identify her job duties as a retail clerk,
           she testified she worked for a large department store. The
           Dictionary of Occupational Titles Fourth Edition Revised
           (1991) lists general merchandise salesperson as light work
           with personal adaptability/temperaments to influence people
           and deal with people beyond giving and receiving
           instructions. Any transferable skills from this position are
           precluded by Dr. Finnerty's prohibition against sustained,
           involved interaction with others.

           As a secretary for Head Start (1999-2007), the Injured Worker
           typed, answered phones, delivered mail, and scheduled
           meetings. She used a computer, fax, copier, mail machine, and
           telephone with the majority of her work when typing and
           answering the phone. As a secretary for the Employer (2007-
           2010), the Injured Worker answered phones, registered
           patients, verified insurance, scheduled patients, requested
           prescriptions, and entered employee hours. The Injured
           Worker used a computer, fax, copier, telephone, and scanner.
           Most of this job involved typing, scheduling, and checking in
           patients using a computer. Like the retail clerk job, Dr.
           Finnerty's psychological restrictions preclude this work and
           the clerical skills acquired are not transferable to other
           sedentary positions so long as the Injured Worker cannot
           work in a changing, fast-pace environment or interact with
           others.

           The Injured Worker is now 64 years old. The Injured Worker's
           age cannot be viewed as a basis for permanent total disability
No. 17AP-399                                                                                17


                compensation. Nonetheless, the Injured Worker would have
                difficulty adapting to new work environments and competing
                with other workers. The Injured Worker's age is a neutral
                vocational factor.

                The Injured Worker did not graduate from high school, but
                she obtained a GED, and she completed two secretarial
                courses. The Injured Worker can read, write, and perform
                basic math. The Injured Worker's education is a positive
                vocational factor.

                As noted above, the Injured Worker's employment history is
                in skilled, clerical positions. However, the Commission finds
                the skills and aptitudes learned from this work are not
                transferable to work within the Injured Worker's current
                capabilities. Skilled, clerical work would ordinarily transfer to
                a plethora of other skilled and unskilled sedentary positions
                but for the significant restrictions imposed by Drs. Rutherford
                and Finnerty. Accordingly, the Commission finds when the
                restrictions from the allowed conditions are considered in
                conjunction with the Injured Worker's nonmedical disability
                factors, the Injured Worker is permanently and totally
                disabled.

                The start date for the award of permanent total disability
                compensation is based on the date Dr. Rutherford examined
                the Injured Worker.

         {¶ 43} 30. On June 1, 2017, relator, Nationwide Children's Hospital, Inc., filed this
mandamus action.
Conclusions of Law:
         {¶ 44} The issue is whether the commission abused its discretion in its consideration
of the non-medical disability factors in its two orders awarding PTD compensation
following the May 3, 2016 hearing.
         {¶ 45} Finding that the commission did abuse its discretion in its consideration of
the non-medical disability factors in its two orders awarding PTD compensation, it is the
magistrate's decision that this court issue a writ of mandamus, as more fully explained
below.
         {¶ 46} It should be noted parenthetically that the commission's exercise of its
continuing jurisdiction is not at issue in this action. That is, that portion of the two orders
No. 17AP-399                                                                             18


explaining the grounds for the exercise of continuing jurisdiction over the SHO's order
mailed February 13, 2016 and the corrected order mailed February 23, 2016 is not under
challenge in this action.
       {¶ 47} To begin, the commission's May 3, 2016 orders awarding PTD compensation
state reliance on the report of Dr. Rutherford dated October 27, 2015 and the report of Dr.
Finnerty dated November 9, 2015 for the determination of residual functional capacity.
Ohio Adm.Code 4121-3-34(B)(4).
       {¶ 48} As indicated by the commission in its two orders, Dr. Rutherford concluded
that claimant "is limited to sedentary occupations with further restrictions on lifting and
carrying ten pounds occasionally using both hands and lifting and carrying up to four
pounds with the left upper extremity." Dr. Rutherford "advised against the use of the left
shoulder for overhead work, repetitive pushing or pulling, or rapid, repetitive, and
continuous production rate work." Furthermore, "[r]egarding the neck, Dr. Rutherford
advised against repetitive motion with the neck or driving heavy equipment."
       {¶ 49} As also indicated by the commission in is two orders, Dr. Finnerty "concluded
[that claimant] remains capable of work comprising a static set of tasks without a fast pace
or frequent changes." He "further concluded [that claimant] may only interact with others
briefly and superficially."
       {¶ 50} It can be noted that the reports from Drs. Rutherford and Finnerty are not
under challenge in this action. What is under challenge in this action is the commission's
consideration of the non-medical disability factors.
       {¶ 51} Ohio Adm.Code 4121-3-34 sets forth the commission's rules for the
adjudication of PTD applications.
       {¶ 52} Ohio Adm.Code 4121-3-34(D) sets forth the commission's guidelines for
adjudication of PTD applications.
       {¶ 53} Ohio Adm.Code 4121-3-34 (D)(2)(b) and (c) state:
              (b) If, after hearing, the adjudicator finds that the injured
              worker, based on the medical impairment resulting from the
              allowed conditions is unable to return to the former position
              of employment but may be able to engage in sustained
              remunerative employment, the non-medical factors shall be
              considered by the adjudicator.
No. 17AP-399                                                                                 19


              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.

       {¶ 54} In State ex rel. B.F. Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525 (1995),
the court determined that the commission's explanation of the non-medical factors was
insufficient. After commenting on the non-medical factors of record in light of the
commission's order, the B.F. Goodrich court concluded:
              In this case, the commission said only that claimant's present
              skills would not transfer to other employment. It did not say
              anything about potential skills that could be developed. A
              claimant's lack of participation in retraining does not
              necessarily translate into an inability to be retrained. We find,
              therefore, that under these facts the commission's explanation
              is insufficient.

(Emphasis sic.) Id. at 530.
       {¶ 55} While relator does not cite to the B.F. Goodrich case in its brief or reply brief,
it does cite and quote from State ex rel. Ewart v. Indus. Comm., 76 Ohio St.3d 139 (1996),
wherein the court states:
              A permanent total disability compensation assessment
              examines both claimant's current and future, i.e., potentially
              developable, abilities. An absence of transferable skills is
              germane to this inquiry. However, as the appellate court
              referee observed, "the nonexistence of transferable skills from
              relator's truck driving experience would not be of critical
              importance when the issue becomes whether the claimant can
              be retrained for another occupation."
No. 17AP-399                                                                                 20


Id. at 141.

       {¶ 56} The magistrate finds that the commission's orders in the instant case are
flawed in a manner similar to that found in B.F. Goodrich.
       {¶ 57} Here, the commission carefully examined claimant's employment history.
Claimant was employed as a data entry operator from 1981 to 1994. In that position,
claimant operated a keypunch machine. The commission notes that keypunch machines
are antiquated and that claimant has no transferable skills from the data entry operator job.
       {¶ 58} Claimant was employed as a retail clerk at a large department store from 1994
to 1997. The commission determined that, as a general merchandise salesperson, claimant
was required to perform light work with personal adaptability/temperaments to influence
people. The commission found that, any transferable skills from the retail clerk job are
precluded by Dr. Finnerty's prohibition against sustained involved interaction with others.
       {¶ 59} Claimant worked two secretarial positions. She was a secretary for Head
Start from 1999 to 2007. She was a secretary for the employer of record from 2007 to 2010.
       {¶ 60} The Head Start secretarial job required claimant to type, answer phones,
deliver mail, and schedule meetings. She used a computer, fax, copier, mail machine, and
telephone. The majority of the work involved typing and answering the phone.
       {¶ 61} As a secretary for the employer of record, claimant answered phones,
registered patients, verified insurance, scheduled patients, requested prescriptions, and
entered employee hours. Most of this job involved typing, scheduling, and checking in
patients using a computer. The commission found that Dr. Finnerty's psychological
restrictions preclude this work and the clerical skills acquired are not transferable to other
sedentary positions so long as claimant cannot work in a changing, fast-pace environment
or "interact with others." (Dr. Finnerty found that claimant "can interact with others briefly
and superficially.")
       {¶ 62} The commission summarized that claimant's employment history is in
skilled, clerical positions. However, it was found that the skills and aptitudes learned from
prior employment "are not transferable to work within [claimant's] current capabilities."
The lack of transferability of the skilled clerical work is due to "the significant restrictions
imposed by Drs. Rutherford and Finnerty."
No. 17AP-399                                                                           21


       {¶ 63} In addition to a thorough review of claimant's employment history, the
commission found that her age of 64 years "is a neutral vocational factor."
       {¶ 64} Noting that claimant did not graduate from high school but did obtain a GED,
that she completed two secretarial courses and that she can read, write, and perform basic
math, the commission concluded that her "education is a positive vocational factor."
       {¶ 65} Clearly, the commission's analysis of the non-medical factors is focused on
claimant's current skills, or lack thereof.
       {¶ 66} Like the situation in B.F. Goodrich, the commission's analysis of the non-
medical factors does not go far enough. The commission failed to determine whether there
are skills which may be reasonably developed that can lead to sustained remunerative
employment. Thus, this court must issue a writ of mandamus. Goodrich, Ewart.
       {¶ 67} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate that portion of the commission's orders
mailed June 22, 2016 that considers the non-medical factors in awarding PTD
compensation, and, in a manner consistent with this magistrate's decision, enter amended
orders that address the question of whether there are skills that may be reasonably
developed that can lead to sustained remunerative employment.


                                              /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).
