State ex rel. Brahler v. Kent State Univ.

Decision Date03 December 2013
Docket NumberNo. 13AP-143,13AP-143
Citation2013 Ohio 5299
PartiesState of Ohio ex rel. Valerie Brahler, Relator, v. Kent State University and Industrial Commission of Ohio, Respondents.
CourtOhio Court of Appeals

(REGULAR CALENDAR)

DECISION

Zwick Law Offices Co., L.P.A., and Victoria Zwick Klapp, for relator.

Amer Cunningham Co. LPA, and Thomas M. Saxer, for respondent Kent State University.

Michael DeWine, Attorney General, and John R. Smart, for respondent Industrial Commission of Ohio.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.

{¶ 1} Relator, Valerie Brahler ("claimant"), has filed this original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order that denied permanent total disability ("PTD") compensation and to enter an order granting said compensation.

{¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued theappended decision, including findings of fact and conclusions of law, and recommended that this court deny claimant's request for a writ of mandamus. Claimant has filed objections to the magistrate's decision.

{¶ 3} Claimant first argues that the magistrate erred when she failed to address her argument that the commission abused its discretion when it failed to address the significance of her rehabilitation efforts following the denial of her first application for PTD in light of State ex rel. Bryant v. Indus. Comm., 74 Ohio St.3d 458 (1996), and State ex rel. Cliff v. Auburndale Co., 111 Ohio St.3d 490, 2006-Ohio-6111. Claimant argues that this case presents a unique situation in light of the fact that the commission previously issued a denial of PTD on November 30, 2010, in which it stated that claimant's failure to fully explore or participate in vocational rehabilitation was a significant factor in denying PTD. Claimant asserts that, after this initial denial, she participated in rehabilitation for three months but was unable to continue such because of neck pain. Claimant concedes that the commission is the exclusive evaluator of disability and is not bound to accept vocational evidence, but argues that here the commission itself made rehabilitation participation a primary concern in its previous denial order, so the commission should be required to address her subsequent rehabilitation.

{¶ 4} The magistrate dedicated five pages of her decision addressing the commission's failure to consider her attempts at vocational rehabilitation in its second order. In rejecting claimant's argument, the magistrate cited State ex rel. Guthrie v. Indus. Comm., 133 Ohio St.3d 244, 2012-Ohio-4637, in which the Supreme Court of Ohio held that the fact that the Staff Hearing Officer ("SHO") did not view the worker's rehabilitation efforts favorably does not affect the validity of the order. The court in Guthrie reasoned that the commission is exclusively responsible for interpreting the vocational evidence, the rehabilitation division made both favorable and unfavorable comments about the worker's participation, and the commission was permitted to accept the unfavorable comments over the favorable ones. In the present case, the magistrate found that, similar to Guthrie, the rehabilitation division made both positive and negative comments concerning claimant's rehabilitation efforts, and the commission could accept the negative comments as the ultimate interpretation of vocational evidence. The magistrate also noted that relator did not attempt vocational rehabilitation from the timeshe stopped working in 2002 until her first application for PTD was denied in 2010, and then she only participated in vocational rehabilitation for three months. We concur with the magistrate's determinations. Claimant presents no authority for the proposition that the commission is required to address rehabilitation efforts where the commission made rehabilitation participation a concern in a prior denial order. Even under these circumstances, it remains that the commission is the exclusive evaluator of vocational evidence and may believe or disbelieve the vocation evidence submitted.

{¶ 5} With regard to claimant's reliance upon Bryant and Cliff, we find these cases inapposite to the present case. In both cases, the commission issued inconsistent orders. In Cliff, the commission denied the claimant temporary total disability benefits because he had voluntarily left the workforce when he retired but then two years later awarded the claimant PTD benefits while implicitly declaring that claimant involuntarily left the workforce. In Bryant, the Supreme Court found an inconsistency between the commission's actions and words, in that the commission cited the claimant's occupational longevity as evidence that retraining is unimpeded by age, but several months earlier, the commission refused to refer claimant to its own rehabilitation division because it felt that claimant was too old. The court stated that claimant either was or was not too old for effective retraining—he could not be both.

{¶ 6} In the present case, there is no conflict between the commission's January 7, 2011 order and its June 9, 2012 order. Both orders denied PTD compensation. The commission found in the January 7, 2011 order that claimant's failure to participate in vocational rehabilitation was a "significant" factor in denying PTD, but also denied the claim based upon the medical and psychological evidence showing that claimant was not permanently and totally disabled. In the June 9, 2012 order, the commission again found that claimant was not permanently and totally disabled based upon the medical and psychological evidence. Given such circumstances, we cannot find an inherent conflict like those in Bryant and Cliff. For these reasons, we overrule claimant's first objection.

{¶ 7} Claimant next argues that the SHO's order of June 5, 2013 that denied PTD compensation relied on Dr. Michael Murphy's original report of December 16, 2011 and his addendum of May 14, 2012, but the commission had implicitly rejected both reports when it previously granted her motion seeking additional psychological treatment, inviolation of State ex rel. Zamora v. Indus. Comm., 45 Ohio St.3d 17 (1989) (it is inconsistent for the commission to reject a medical report at one level, for whatever reason, and rely on it at another). However, we agree with the magistrate that State ex rel. Kish v. Kroger Co., 135 Ohio St.3d 451, 2013-Ohio-1931, provides a proper basis for distinguishing the present case from those in Zamora. Based upon Kish, the magistrate correctly found that, because Dr. Murphy's May 2012 and December 2011 reports were prepared to address two different issues, the commission rejecting Dr. Murphy's opinion with regard to additional counseling (as addressed in the May 2012 addendum) did not prohibit the commission from relying upon his opinion with regard to PTD (as addressed in the December 2011 report). Furthermore, we find claimant's attempt to distinguish Kish on the basis that the addendum report in that case was not issued at the time of the original decision—whereas, in the present case, both the original and addendum reports were issued prior to the May 16, 2012 decision on additional treatment—does not alter the applicability of the underlying rationale in Kish. For these reasons, claimant's second objection is overruled.

{¶ 8} After an examination of the magistrate's decision, an independent review of the record pursuant to Civ.R. 53, and due consideration of claimant's objections, we overrule the objections and adopt the magistrate's findings of fact and conclusions of law. Claimant's writ of mandamus is denied.

Objections overruled and writ of mandamus denied.

CONNOR and O'GRADY, JJ, concur.

APPENDIX

State of Ohio, ex rel. Valerie Brahler, Relator,

v.

Kent State University and Industrial Commission of Ohio, Respondents.

No. 13AP-143

(REGULAR CALENDAR)

MAGISTRATE'S DECISION

Zwick Law Offices Co., L.P.A., and Victoria Zwick Klapp, for relator.

Amer Cunningham Co. LPA, and Thomas M. Saxer, for respondent Kent State University.

Michael DeWine, Attorney General, and John R. Smart, for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶ 9} Relator, Valerie Brahler, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied her application for permanent total disability ("PTD") compensation and ordering the commission to find that she is entitled to that compensation.Findings of Fact:

{¶ 10} 1. Relator sustained a work-related injury on February 20, 1984. At the time, relator attended and was working two days a week for respondent Kent State University.

{¶ 11} 2. Relator's workers' compensation claim has been allowed for the following conditions:

Cervical sprain; prolonged depressive reaction; ganglion, right wrist; aggravation of pre-existing cervical spinal stenosis C5-C6.

{¶ 12} 3. After graduating from college in 1997, relator found employment in the field of music.

{¶ 13} 4. Relator received periods of temporary total disability ("TTD") compensation over the years and last worked in June 2002.

{¶ 14} 5. Relator did not participate in vocational rehabilitation between 2002 and 2009.

{¶ 15} 6. The stipulation of evidence is devoid of medical records from 2002 through 2009. The magistrate found two references to relator's medical condition during this time period. In his February 23, 2012 report, Dr. Metz notes that relator had a normal EMG/NCV study on May 19, 2002, and an MRI on September 19, 2007 revealed broad central C5-C6 disc herniation impinging on the anterior aspect of the cervical cord and degenerative disc disease at C6-C7.

{¶ 16} 7. In 2009, the commission referred relator for...

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