State ex rel. Sheppard v. Indus. Comm'n of Ohio

• Decision Date: 20 September 2012
• Docket Number: No. 11AP-553,11AP-553
• Citation: 2012 Ohio 4301
• Court: Ohio Court of Appeals
• Parties: State of Ohio ex rel. Robert L. Sheppard, Relator, v. Industrial Commission of Ohio and Shelly & Sands, Inc., Respondents.

2012 Ohio 4301

State of Ohio ex rel. Robert L. Sheppard, Relator,

v.Industrial Commission of Ohio and Shelly & Sands, Inc., Respondents.

No. 11AP-553

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

Dated: May 24, 2012

Dated: September 20, 2012

(REGULAR CALENDAR)

DECISION

Philip J. Fulton Law Office, and Chelsea J. Fulton, for relator.

Michael DeWine, Attorney General, and Gerald H. Waterman, for respondentIndustrial Commission of Ohio.

Hanna, Campbell & Powell, LLP, and Lori A. Whitten, for respondentShelly & Sands, Inc.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, P.J.

{¶ 1}Relator, Robert L. Sheppard("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 granted the request for reconsideration filed by respondentShelly & Sands, Inc.("employer") and ultimately denied claimant's application for permanent total disability ("PTD") compensation and order the commission to reinstate the order which granted claimant PTD compensation.

{¶ 2}This matter was referred to a court-appointed magistrate pursuant to Civ.R. 53(C)andLoc.R. 13(M) of the Tenth District Court of Appeals.The magistrate issued the appended 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 presents two objections.Claimant argues in his first objection that the magistrate erred when she failed to explain why the failure of the staff hearing officer ("SHO") to mention the employer's argument about an alleged intervening injury constituted a mistake of law justifying continuing jurisdiction.Claimant contends that there is no legal authority that directs hearing officers to address an intervening-injury argument in the opinion; rather, case law provides that the commission need only cite evidence in support of its decision.

{¶ 4}We find claimant's arguments unpersuasive, albeit for a different reason than that expressed by the magistrate.Although we agree with the general principle that the commission is required only to cite evidence in support of the order, the commission's concern here was that the SHO failed to give any indication whatsoever that he even considered the employer's "critical" argument regarding the intervening injury.This court has before found that an SHO's failure to address an issue raised by an employer constitutes a mistake of law sufficient for the commission to invoke continuing jurisdiction.SeeState ex rel. Mackey v. Ohio Dept. of Edn., 10th Dist. No.09AP-966, 2010-Ohio-3522, ¶ 8, citingState ex rel. Hayes v. Indus. Comm., 10th Dist. No.01AP-1087, 2002-Ohio-3675(concluding it was an abuse of discretion for an SHO to fail to address an issue when the employer had presented the issue; the commission did not abuse its discretion by invoking its continuing jurisdiction to address the issue).Furthermore, we cannot simply assume that the SHO rejected the intervening-injury argument based upon his failure to address it.Seeid.at ¶ 7-8(rejectingclaimant's contention that, by not addressing the employer's argument, the SHO "obviously" rejected the argument).Therefore, in this case, we find the commission properly exercised continuing jurisdiction on the basis that the SHO's failure to address the employer's critical argument regarding the alleged intervening injury constituted a mistake of law.For this reason, we find claimant's first objection is without merit.

{¶ 5}Claimant argues in his second objection that the magistrate erred when she concluded that the commission could re-weigh evidence and deny relator's PTD application after finding that there was no intervening injury.Claimant contends that, having found there was no intervening injury, the commission should have ended its reconsideration analysis instead of analyzing wholly different medical evidence than that originally relied upon by the SHO.Claimant also asserts he was given no notice that the commission would question and reject the evidence originally relied upon by the SHO; namely, the report of Dr. Richard Ward.Claimant argues that the commission improperly re-weighed the evidence, relied upon different evidence, and considered vocational factors, something the SHO did not do because the SHO granted PTD based upon medical factors.

{¶ 6}However, in State ex rel. Sears Roebuck & Co. v. Indus. Comm., 1 Ohio App.3d 132, 133(10th Dist.1981), this court discussed the broad scope of the commission's review upon reconsideration:

When reconsideration is requested, the Industrial Commission has jurisdiction to reconsider and modify any aspect of the order from which reconsideration is sought.There is no statutory limitation to the jurisdiction of the Industrial Commission to modify any aspect of the award from which a timely motion for reconsideration is made, nor does any rule of the Industrial Commission so limit its discretion.The Industrial Commission, by virtue of a timely motion for reconsideration, retains discretion to modify or correct any part of the award and not just an aspect of the award designated by the applicant.

{¶ 7}In Hayes, we relied upon the above passage from Sears Roebuckand reaffirmed that it is clear that once the commission's continuing jurisdiction is invoked in an order articulated with specific reasons therefore, the commission is vested with the authority to address any issues pertaining to the order in question.See Hayes.That would include the authority of the commission to vacate the underlying order.Id., citingState ex rel Riter v. Indus. Comm., 91 Ohio St.3d 89(2001).For these reasons, we find claimant's second objection is without merit.

{¶ 8}After an examination of the magistrate's decision, an independent review of the record pursuant to Civ.R. 53, and due consideration of the claimant's objections, weoverrule the objections and adopt the magistrate's findings of fact and conclusions of law, except as modified to the extent noted above with regard to the basis for exercising continuing jurisdiction.Claimant's writ of mandamus is denied.

Objections overruled and writ of mandamus denied.

BRYANT and DORRIAN, JJ., concur.

APPENDIX

State of Ohio ex rel. Robert L. Sheppard, Relator,

v.

Industrial Commission of Ohio and Shelly & Sands Inc., Respondents.

No. 11AP-553

(REGULAR CALENDAR)

MAGISTRATE'S DECISION

Philip J. Fulton Law Office, and Chelsea J. Fulton, for relator.

Michael DeWine, Attorney General, and Gerald H. Waterman, for respondentIndustrial Commission of Ohio.

Hanna, Campbell & Powell, LLP, and Lori A. Whitten, for respondentShelly & Sands Inc.

IN MANDAMUS

{¶ 9}Relator, Robert L. Sheppard, has filed this original action requesting that this court issue a writ of mandamus ordering respondentIndustrial Commission of Ohio("commission") to vacate its order in which the commission granted the request for reconsideration filed by the respondentShelly & Sands Inc.("employer") and ultimatelydenied relator's application for permanent total disability ("PTD") compensation and ordering the commission to reinstate the order which granted relator PTD compensation.Findings of Fact:

{¶ 10}1.Relator sustained a work-related injury on October 9, 1997, and his workers' compensation claim has been allowed for the following conditions: "Lumbosacral sprain; herniated disc L5-S1."

{¶ 11}2.Relator last worked in 2000, at which time he was 53 years of age.

{¶ 12}3.Relator's medical treatment for his allowed condition has been conservative and relator has not undergone any surgery.

{¶ 13}4.It is undisputed that relator suffers from degenerative disc disease, a non-allowed condition.Further, follow-up MRIs indicated that the herniation at L5-S1 had resolved.

{¶ 14}5.It is also undisputed that relator re-injured his back in February 2002 after falling off a truck.Relator was treated under the veteran's administration system and received epidural steroid injections.

{¶ 15}6.On March 5, 2010, relator filed his application for PTD compensation.At the time, relator was 62 years of age, was receiving disability benefits other than Social Security, indicated that he did not graduate from high school and did not receive his GED and he had only finished the ninth grade.Relator indicated that he could read and write, but not well and that he could perform basic math.Relator also indicated that he had not participated in any rehabilitation efforts.

{¶ 16}7.Richard M. Ward, M.D., completed two medical reports, both dated December 22, 2009.One report was apparently submitted in support of an application relator filed seeking an increase in his percentage of permanent partial disability.Dr. Ward concluded that relator had a 26 percent permanent partial impairment due to the allowed conditions in his claim.

{¶ 17}8.The second report of Dr. Ward, also dated December 22, 2009, was submitted in support of relator's PTD application.Relator informed Dr. Ward that he had no subsequent injury to his back following the 1997 work-related injury.Dr. Ward provided his physical findings upon examination, and concluded:

Based upon the specific allowances for the injury that occurred as described on 10-09-1997 and my physical findings, it is my opinion that he cannot return to sustain[ed] remunerative employment.There really is no combination of sit, stand, walk option that would add up to a normal 8 hour work day for him.He also has severe postural limitations and limitations on his ability to lift and carry and he cannot use his legs to operate foot controls.He incidentally has mentioned that he has only a ninth grade education and all of his work has been heavy.I did fill out a Physical Capacity Evaluation to the best of my ability, again, taking into account the specific allowances for the injury that occurred

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