State v. Aldi, Inc.

• Court: Ohio Court of Appeals
• Writing for the Court: DORRIAN, P.J.
• Citation: State v. Aldi, Inc., 2016 Ohio 83, No. 14AP-632 (Ohio App. Jan 12, 2016)
• Decision Date: 12 January 2016
• Docket Number: No. 14AP-632,14AP-632
• Parties: State of Ohio ex rel. Flora Bennett, Relator, v. Aldi, Inc., Ohio and Industrial Commission of Ohio, Respondents.

2016 Ohio 83

State of Ohio ex rel. Flora Bennett, Relator, v. Aldi, Inc., Ohio and Industrial Commission of Ohio, Respondents.

No. 14AP-632

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

January 12, 2016

(REGULAR CALENDAR)

DECISION

Ronald E. Slipski and Charles Oldfield, for relator.

Weston Hurd, LLP, and Michael J. Spisak, for respondent Aldi, Inc., Ohio.

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

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, P.J.

{¶ 1} Relator, Flora Bennett, filed this original action, naming as respondents the Industrial Commission of Ohio ("commission"), and her employer, Aldi, Inc., Ohio ("Aldi"). Relator requests a writ of mandamus ordering the commission to vacate its order granting the request of Aldi for reconsideration, to reinstate the order of the staff hearing officer ("SHO"), and to award permanent total disability ("PTD") compensation to her.

{¶ 2} Pursuant to Civ.R. 53(D) and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommends that this court grant the writ of mandamus.

{¶ 3} The commission sets forth one objection to the magistrate's decision:

The magistrate erred in substituting her judgment for that of the commission on factual matters by finding the SHO had relied on only the non-defective portion of Dr. Novak's report.

{¶ 4} Aldi sets forth three objections to the magistrate's decision:

1. The SHO should not have relied upon Mr. Ruth's report to evaluate Bennett's non-medical disability factors.

2. The SHO incorrectly applied Dr. Gade-Pulido's conclusions.

3. The SHO did not discuss Bennett's failure to attempt vocational rehabilitation.

{¶ 5} Neither the commission nor Aldi objects to the magistrate's findings of fact and, therefore, we adopt them as our own.

{¶ 6} To obtain a writ of mandamus, a relator must demonstrate that it has a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. AutoZone, Inc. v. Indus. Comm., 117 Ohio St.3d 186, 2008-Ohio-541. "To show the clear legal right, relator must demonstrate that the commission abused its discretion by entering an order unsupported by some evidence in the record." State ex rel. Hughes v. Goodyear Tire & Rubber Co., 26 Ohio St.3d 71, 73 (1986). When the record contains "some evidence" to support the commission's factual findings, a court may not disturb the commission's findings in mandamus. State ex rel. Fiber-Lite Corp. v. Indus Comm., 36 Ohio St.3d 202 (1988), syllabus. " 'Where a commission order is adequately explained and based on some evidence, * * * the order will not be disturbed as manifesting an abuse of discretion.' " State ex rel. Avalon Precision Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, ¶ 9, quoting State ex rel. Mobley v. Indus. Comm., 78 Ohio St.3d 579, 584 (1997).

{¶ 7} R.C. 4123.52 governs the continuing jurisdiction of the industrial commission, providing that "[t]he jurisdiction of the industrial commission and the authority of the administrator of workers' compensation over each case is continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified." However, "[c]ontinuing jurisdiction is not unlimited." State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 458-59 (1998), citing State ex rel. B & C Machine Co. v. Indus. Comm., 65 Ohio St.3d 538 (1992). The commission may exercise continuing jurisdiction where one of the following prerequisites is present: "(1) new and changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5) error by inferior tribunal." State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, ¶ 15, citing Nicholls at 459.

{¶ 8} In Gobich, the Supreme Court of Ohio provided further instruction on the applicability of the commission's continuing jurisdiction:

The presence of one of these prerequisites must be clearly articulated in any commission order seeking to exercise reconsideration jurisdiction. This means that the prerequisite must be both identified and explained. It is not enough to say, for example, that there has been a clear error of law. The order must also state what that error is. This ensures that the party opposing reconsideration can prepare a meaningful defense to the assertion that continuing jurisdiction is warranted. It also permits a reviewing court to determine whether continuing jurisdiction was properly invoked.

(Internal citations omitted.) Id. at ¶ 15. See also State ex rel. Robertson v. Indus. Comm., 10th Dist. No. 05AP-479, 2006-Ohio-3553, ¶ 14. Thus, we must consider whether the commission clearly identified and explained the prerequisite for its exercise of continuing jurisdiction. Gobich at ¶ 15. When the commission identifies a clear mistake of law as the basis for its continuing jurisdiction we must consider: "(1) Was there a mistake? (2) If so, was it clear?" Id. at ¶ 17.

{¶ 9} The commission's exercise of continuing jurisdiction is subject to abuse-of-discretion review. State ex rel. Allied Sys. Holdings v. Donders, 10th Dist. No. 11AP-960, 2012-Ohio-5855, ¶ 6, citing State ex rel. Akron Paint & Varnish, Inc. v. Gullotta, 131 Ohio St.3d 231, 2012-Ohio-542. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 10} In its September 28, 2013 order, the commission stated that it was exercising continuing jurisdiction based upon a clear mistake of law. Speficically, the commission found that the SHO's "reliance on the 07/24/2012 report of Glen Novak, D.O., was improper, as Dr. Novak used an incorrect standard for assessing whether the Injured Worker is capable of sustained remunerative employment, by finding the Injured Worker could not work an eight hour a day/40 hour a week job."

{¶ 11} In its objection, the commission argues that the magistrate erred by substituting her judgment for that of the commission by finding that the SHO only relied on the non-defective portion of Dr. Novak's report. In support of this contention, the commission argues that "[i]t is quite clear that the SHO made a mistake of law in relying upon a doctor's opinion that was based upon an incorrect legal standard, as the commission found." (Commission's Objection, 4.)

{¶ 12} None of the parties dispute that Dr. Novak applied the incorrect standard in assessing whether relator was capable of performing sustained remunerative employment. However, the record does not reflect that the SHO applied the standard used by Dr. Novak in determining whether relator was capable of performing sustained remunerative employment. Indeed, contrary to the finding of Dr. Novak that relator was incapable of performing work on an eight-hour day, five-days-a-week basis, the SHO found, based on the reports of Drs. Novak, Kepple, and Gade-Pulido, that relator "may be able to engage in sustained remunerative employment." (SHO's Order, 2.) Based on this finding, the SHO stated that "an analysis of * * * non-medical factors is necessary." (SHO's Order, 2.) Had the SHO accepted as dispositive the conclusion of Dr. Novak that relator was incapable of performing work based upon the incorrect standard, there would have been no need for the SHO to examine the non-medical factors. See State ex rel. Gay v. Mihm, 68 Ohio St.3d 315, 320 (1994) (finding that the commission must thoroughly consider non-medical factors "where a claimant's medical capacity to do work is not dispositive"); Ohio Adm.Code 4121-3-34(D)(2)(b) ("If, after hearing, the adjudicator finds that 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.").

{¶ 13} Thus, because the SHO did not apply the incorrect standard used by Dr. Novak and did not accept the conclusion of Dr. Novak that was based upon that incorrect standard, we cannot agree with the commission that the SHO's order contained a mistake of law or that such mistake is clear on the face of the SHO's order. Gobich at ¶ 14-17. Further, contrary to the commission's argument, this conclusion does not disturb the deference ordinarily granted to the commission's factual findings. Rather, our examination of the SHO's order is based upon the duty of a reviewing court to determine whether the commission properly exercised continuing jurisdiction based upon a clear mistake of law. Therefore, after careful and independent review, we find no merit to the commission's objection.

{¶ 14} In its objections to the magistrate's decision, Aldi argues that the SHO (1) should not have relied on Mr. Ruth's report, (2) incorrectly applied the conclusions of Dr. Gade-Pulido, and (3) failed to discuss relator's lack of vocational rehabilitation. While these arguments relate to whether the SHO correctly determined that relator was precluded from all sustained remunerative employment, they do not address the issue before us: whether the commission abused its discretion when it determined that the SHO's decision contained a clear mistake of law by relying on the report of Dr. Novak. The commission could have, but did not, state that the SHO's decision contained a mistake of law based upon the grounds advanced by Aldi in its three objections. Because the commission did not rely on such grounds in order to find that there was a clear mistake of law, we find Aldi's objections to be outside the scope of the present matter and, therefore, without merit. Gobich at ¶ 15 (finding that the order must state what the clear error of law is...