State v. Indus. Comm'n of Ohio

Decision Date23 May 2017
Docket NumberNo. 16AP-263,16AP-263
Citation2017 Ohio 2939
PartiesState of Ohio ex rel. James R. Reichley, Relator, v. Industrial Commission of Ohio and Cooper Tire & Rubber Co., Respondents.
CourtOhio Court of Appeals

(REGULAR CALENDAR)

DECISION

On brief: Law Offices of Thomas Tootle, and Thomas Tootle, for relator.

On brief: Michael DeWine, Attorney General, and Shaun Omen, for respondent Industrial Commission of Ohio.

On brief: Eastman & Smith Ltd., Richard L. Johnson, and Lindsey K. Ohlman, for respondent Cooper Tire & Rubber Company.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, J.

{¶ 1} Relator, James R. Reichley, has filed an original action requesting a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate the February 19, 2013 order of its staff hearing officer ("SHO") that denied his first application for permanent total disability ("PTD") compensation ("February 2013 order") and the January 27, 2016 order of its SHO that denied his second application for PTD compensation ("January 2016 order"), and to enter an order that eliminates the finding that relator voluntarily abandoned the workforce and adjudicates the merits of relator's PTD application.

{¶ 2} Pursuant to Civ.R. 53 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 this court deny the request for a writ of mandamus.

{¶ 3} Relator has filed the following two objections to the magistrate's decision:

[I.] The record fails to contain "some evidence" to support a finding of voluntary abandonment of the work-force (and therefore precluding an award of permanent total disability). The Magistrate's conclusion of law finding otherwise was in error.
[II.] Evidence demonstrating Relator's two week return-to-work was sufficient to establish a re-entry to the work-force. The Magistrate's conclusion of law finding otherwise was in error.

{¶ 4} The facts of this case, as set forth in the magistrate's decision, indicate that relator suffered a severe injury on March 4, 1988, while employed by respondent Cooper Tire & Rubber Company ("Cooper Tire"). Relator's claim was allowed for multiple conditions, including partial paraplegia. Despite these injuries, in June 1989, relator returned to work as a supervisor at Cooper Tire, and remained in that position until October 30, 2011. Relator's post-injury work history of more than 22 years certainly demonstrates his willingness to remain in the workforce. After leaving employment with Cooper Tire, relator filed a first application for PTD compensation on August 14, 2012. He subsequently filed a second application for PTD compensation on December 23, 2014.

{¶ 5} As explained in the magistrate's decision, the February 2013 order denied relator's first PTD application on alternative bases: (1) that relator voluntarily abandoned the workforce, and (2) that relator retained the ability to perform sustained remunerative employment. The latter conclusion was based on the reports of Drs. Donato Borrillo and Gerald Steinman, which constitute some evidence to support the SHO's finding. Similarly, the January 2016 order denied relator's second PTD application on alternative bases: (1) that relator voluntarily abandoned the workforce, and (2) that relator had not reached maximum medical improvement for all of the allowed conditions in his claim. The latter conclusion was based on the reports of Drs. Franklin Kindl and Kurt Kuhlman, which constitute some evidence to support the SHO's finding.

{¶ 6} Relator's mandamus complaint and objections to the magistrate's decision only challenge the findings and conclusions with respect to voluntary abandonment of the workforce. Relator has not challenged the alternative basis for the February 2013 order or the January 2016 order. "If it can be said that relator has challenged only one of two bases [for denial of a PTD application], he cannot show entitlement to a writ of mandamus if the basis he has failed to challenge supports the commission's decision." State ex rel. Terry v. Anderson's, Inc., 10th Dist. No. 13AP-652, 2014-Ohio-4169, ¶ 57. See also State ex rel. Davis-Hodges v. Indus. Comm., 10th Dist. No. 10AP-183, 2010-Ohio-5871, ¶ 41 ("Where the commission provides an alternative rationale for its determination which withstands the scrutiny of mandamus review and provides an independent basis for the commission's decision, the fact that the commission incorrectly applied the law in a separate portion of the order does not constitute grounds for the granting of a writ of mandamus."). Accordingly, we need not reach the issue of voluntary abandonment; the alternative bases in each order support the commission's decision and relator has failed to challenge those conclusions.

{¶ 7} Upon review of the magistrate's decision, an independent review of the record, and due consideration of relator's objections, we find the magistrate has properly determined the pertinent facts. Moreover, we find that each order that relator seeks to have vacated contained an alternative basis for the commission's decision, and that relator has failed to challenge the alternative bases contained in those orders. Therefore, relator is not entitled to a writ of mandamus and we overrule relator's objections to the magistrate's decision. We adopt the magistrate's findings of fact as our own; because we need not reach the issue of voluntary abandonment of the workforce, we do not adopt the magistrate's conclusions of law. Accordingly, the requested writ of mandamus is hereby denied.

Objections overruled; writ of mandamus denied.

TYACK, P.J., and LUPER SCHUSTER, J., concur.

APPENDIX

The State ex rel. James R. Reichley, Relator,

v.

Industrial Commission of Ohio and Cooper Tire & Rubber, Co., Respondents.

MAGISTRATE'S DECISION

NUNC PRO TUNC1

Rendered on December 30, 2016

Law Offices of Thomas Tootle, and Thomas Tootle, for relator.

Michael DeWine, Attorney General, and Shaun Omen, for respondent Industrial Commission of Ohio.

Eastman & Smith Ltd., Richard L. Johnson, and Lindsey K. Ohlman, for respondent Cooper Tire & Rubber, Co.

IN MANDAMUS

{¶ 8} In this original action, relator, James R. Reichley, requests a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission") to vacate the February 19, 2013 order of its staff hearing officer ("SHO") that denied his first application for permanent total disability ("PTD") compensation based on a finding thatrelator voluntarily abandoned the workforce, and to enter an order that eliminates the finding that relator voluntarily abandoned the workforce.

{¶ 9} Furthermore, relator requests that the writ order the commission to vacate the January 27, 2016 order of its SHO that denies his second application for PTD compensation based on a finding that he voluntarily abandoned the workforce, and to enter an order that eliminates the finding that he voluntarily abandoned the workforce and adjudicates the merits of the PTD application.

Findings of Fact:

{¶ 10} 1. On March 4, 1988, relator was severely injured while employed as a "Mobile Equipment Servicer" for respondent Cooper Tire & Rubber, Co. ("Cooper Tire"), a self-insured employer under Ohio's workers' compensation laws. On that date, while working on tread tray wheels, the tread tray rolled over onto relator's body pinning him to the floor.

{¶ 11} 2. The industrial claim (No. 968146-22) was initially allowed for:

Burst fracture L3 with incomplete paraplegia; compound fracture right tibia and fibula; fracture of right calcaneus; laceration left forehead; ulcer of heel and midfoot; claw foot, acquired; left wrist scaphoid contusion.

{¶ 12} 3. Following some recovery from the injury, relator was able to ambulate with the use of bilateral leg braces and forearm crutches.

{¶ 13} 4. In June 1989, relator returned to work as a supervisor at Cooper Tire. He maintained his employment as a supervisor until he left his employment with Cooper Tire on October 30, 2011.

{¶ 14} 5. Relator applied for social security disability benefits. He began receiving the benefits in April 2012.

{¶ 15} 6. On March 29, 2012, attending physician Stephen J. Freshwater, M.D., wrote:

James Reichley had a work related burst fracture of L3 in March 1988 which resulted in severe cauda equina compression and paraplegia. He has had increased pain in his buttocks and legs beginning in August last year. Narcotic pain medications were not effective for controlling his pain. He had a CT of the lumbar spine in September 2011 showing diffuse circumferential and internal dense calcifications of the thecal sac between L3 and S2. His films were evaluated by Jason Schroeder, M.D. who did not believe there was any surgical procedure that could begin to help the changes present. He has been seeing Thomas Kindl, M.D. at Midwest Pain Treatment Center. He's had several different injections which have not made much difference with his pain. He is worse if he has to stand for more than a few minutes at a time, walk more that 50 feet, or sit for a prolonged period of time. Given this progression of his problem, I do not believe that he can return to work at Cooper Tire in his former capacity or in any available job with his current limitations. I believe that he qualifies for a total permanent disability.

{¶ 16} 7. On May 10, 2012, Thomas Kindl, M.D., relator's pain management physician, wrote:

[T]o a reasonable degree of medical certainty, I do not believe that Mr. Reichley is a candidate to return to work at his former employer in any reasonable capacity, given his functional and medical limitations. I believe that his condition is unlikely to change over the following 12-month period of thereafter. I believe he therefore qualifies for total permanent disability.

{¶ 17} 8. On August 14, 2012, relator filed his first PTD application. In support, relator...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT