State v. Indus. Comm'n of Ohio

• Decision Date: 28 July 2015
• Docket Number: No. 14AP-450,14AP-450
• Citation: 2015 Ohio 3006
• Parties: The State of Ohio ex rel. Mary L. Vinson, Relator, v. Industrial Commission of Ohio and Central Ohio Transit Authority, Respondents.
• Court: Ohio Court of Appeals

2015 Ohio 3006

The State of Ohio ex rel. Mary L. Vinson, Relator, v. Industrial Commission of Ohioand Central Ohio Transit Authority, Respondents.

No. 14AP-450

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

July 28, 2015

(REGULAR CALENDAR)

DECISION

The Bainbridge Firm, LLC, Andrew J. Bainbridge, Christopher J. Yeager, Carol L. Herdman and Zachary L. Tidaback, for relator.

Michael DeWine, Attorney General, and Andrew J. Alatis, for respondentIndustrial Commission of Ohio.

Kegler, Brown, Hill & Ritter Co., LPA, David M. McCarty, Randall W. Mikes and Katja Garvey, for respondent Central Ohio Transit Authority.

IN MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION

DORRIAN, J.

{¶ 1} Relator, Mary L. Vinson("relator"), filed this original action requesting a writ of mandamus ordering respondentIndustrial Commission of Ohio("commission") to vacate its order denying her application for wage loss compensation and to enter an order granting her application for wage loss compensation.

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

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

The Magistrate erred by failing to consider all of the Brinkman factors with regard to the instant matter.

{¶ 4} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the objected matters "to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law."None of the parties have objected to the magistrate's findings of fact, and we adopt them as our own.

{¶ 5} To obtain a writ of mandamus, relator must demonstrate that she 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, ¶ 14.A clear legal right exists when the relator establishes that the commission abused its discretion by entering an order that is not supported by any evidence in the record.State ex rel. Brown v. Indus. Comm., 13 Ohio App.3d 178(10th Dist.1983)." 'Where a commission order is adequately explained and based on some evidence, even evidence that may be persuasively contradicted by other evidence of record, 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, quotingState ex rel. Mobley v. Indus. Comm., 78 Ohio St.3d 579, 584 (1997), ¶ 9.

{¶ 6} The magistrate concluded that relator failed to demonstrate that the commission abused its discretion.Relator argued that her case is analogous to State ex rel. Brinkman v. Indus. Comm., 87 Ohio St.3d 171(1999), but the magistrate concluded that Brinkman was factually distinguishable.Thus, the magistrate in effect concluded that the facts that made relator's case distinguishable from Brinkman constituted some evidence in support of the commission's decision.

{¶ 7} In her objection, relator asserts that the magistrate erred by failing to consider other factors that she asserts make this case analogous to Brinkman.However, as noted above, where some evidence supports a commission decision, it will not be overturned as an abuse of discretion despite the presence of other evidence that would support a contrary decision.Avalon Precision Castingat ¶ 9.See alsoState ex rel. Pass v.C.S.T. Extraction Co., 74 Ohio St.3d 373, 376(1996)("An order that is supported by 'some evidence' will be upheld.It is immaterial whether other evidence, even if greater in quality and/or quantity, supports a decision contrary to the commission's.").After a careful and independent review, we do not find merit to relator's objection.

{¶ 8} Upon review of the magistrate's decision, an independent review of the record, and due consideration of relator's objection, we find that the magistrate has properly determined the pertinent facts and applied the appropriate law.We therefore overrule relator's objection to the magistrate's decision and adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein.The requested writ of mandamus is hereby denied.

Objection overruled; writ denied.

LUPER SCHUSTER and BRUNNER, JJ., concur.

APPENDIX

MAGISTRATE'S DECISION

Rendered on February 23, 2015

The Bainbridge Firm, LLC, Andrew J. Bainbridge, Christopher J. Yeager, Carol L. Herdman and Zachary L. Tidaback, for relator.

Michael DeWine, Attorney General, and Andrew J. Alatis, for respondentIndustrial Commission of Ohio.

Kegler, Brown, Hill & Ritter Co., LPA, David M. McCarty, Randall W. Mikes and Katja Garvey, for respondent Central Ohio Transit Authority.

IN MANDAMUS

{¶ 9} Relator, Mary L. Vinson, has filed this original action requesting that this court issue a writ of mandamus ordering respondentIndustrial Commission of Ohio("commission") to vacate its order which denied her application for wage loss compensation, and ordering the commission to find that she is entitled to that award.

Findings of Fact:

{¶ 10} 1.Relator sustained a work-related injury on June 1, 2006, and her workers' compensation claim was allowed for the following conditions:

Left leg thigh muscle strain; left knee sprain/strain; tear medial meniscus left knee; tear lateral meniscus left knee; aggravation of pre-existing joint disease left knee.

{¶ 11} 2.It is undisputed that relator is unable to return to her former position of employment with respondent Central Ohio Transit Authority ("COTA").

{¶ 12} 3.On March 13, 2012, relator filed a C-86 motion for wage-loss compensation beginning November 4, 2011 and continuing.

{¶ 13} 4.According to her application, relator began working at JCPenney Outlet ("JCPenney") as a cashier on November 4, 2011.Relator initially earned $7.50 per hour and, as of June 2012, was earning $7.95 per hour.While employed with COTA, relator earned $21.74 per hour.

{¶ 14} Relator also submitted medical evidence from her treating physician Christopher C. Kaeding, M.D., who noted at different times that she could only occasionally reach, was prohibited from using her hands repetitively to push and pull arm controls and that, in an eight-hour day, she could only sit, stand, and walk for one hour each.

{¶ 15} 5.The matter was heard before a district hearing officer ("DHO") on June 22, 2012.At the hearing, relator testified that, as a cashier she would stand for two hours at a time, take a 15-minute break, then stand for another 2 hours.She testified further that, many weeks she did not work 20 hours per week because there was no work available, and she did not seek any other employment after being hired by JCPenney.

{¶ 16} 6.The DHO denied relator's application for wage loss compensation finding the restrictions on pushing, pulling, and reaching were not related to the allowed conditions and that, based on her own testimony, by standing for two hours at a time, relator was working outside the restrictions Dr. Kaeding placed on her.Further, the DHO found that relator failed to make a job search to find comparably paying work specificallynoting that many weeks relator worked significantly fewer than 20 hours and did not look for work after she was hired.

{¶ 17} 7.Relator filed an appeal from the DHO's order; however, relator, through counsel, dismissed that appeal with prejudice.

{¶ 18} 8.Relator filed her second application for wage loss compensation on November 12, 2013.In support of her motion, relator submitted the following: (a) a C-140 signed by relator on July 21, 2013 indicating she was currently making $8.10 an hour working as a cashier/operator for JCPenney; (b) a C-140 signed by Dr. Kaeding noting she had permanent restrictions including no bending, twisting/turning, pushing/pulling, squatting/kneeling/crawling, and no prolonged walking or standing.During an eight-hour day, Dr. Kaeding opined relator could sit for six to eight hours stand and walk for four to five hours each.She could frequently reach, continuously lift up to 5 pounds, and occasionally lift up to 20 pounds; (c) a form dated October 23, 2013 signed by Dr. Kaeding indicating relator has been under physical limitation from June 22 through July 17, 2013, and that those restrictions had been permanent since she was released to return to work in a modified capacity, and that those limitations included no bending, twisting, turning, pushing, squatting, kneeling and no prolonged walking or standing; (d) a letter from Procura Management, Inc. dated July 11, 2011 and signed by Dr. Kaeding on August 5, 2011 indicating that relator was not capable of performing sedentary work full-time and remained restricted to part-time work; (e) the March 22, 2011 report of Matthew D. Beal from the Ohio State Medical Center indicating:

This patient has been under my care beginning 10/05/10.The patient needs to be on permanent restrictions that include the following restrictions:

Patient is unable to lift/carry anything from 21-100 pounds at all.She is able to occasionally lift 11-20 pounds and she is able to lift 10 pounds on a continuous basis.Patient is able to occasionally reach below her knee as well as occasionally stand/walk and sit.Patient is unable to bend, twist/turn, push/pull, squat/kneel, and she should not be reaching above her shoulders.Patient needs to change positions every 30 minutes.If you have any questions feel free to contact my office.

(f) a copy of her OhioMeansJobs account statement; (g) a description of her position as a receptionist/operator with JCPenney indicating that her responsibilities included the following:

Answering incoming calls in a timely manner

Greeting Associates and Visitors as they enter the Associate Entrance

Directing incoming

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