State v. Indus. Comm'n of Ohio
| Decision Date | 07 July 2016 |
| Docket Number | No. 15AP-599,15AP-599 |
| Citation | 2016 Ohio 4881 |
| Parties | State of Ohio ex rel. Nicole Stover, Relator, v. Industrial Commission of Ohio and SABCO of Ohio, Inc., Respondents. |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
On brief: Agee, Clymer, Mitchell & Laret, and Robert M. Robinson, for relator.
On brief: Michael DeWine, Attorney General, and Lisa R. Miller, for respondent Industrial Commission of Ohio.
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
{¶ 1} Relator, Nicole Stover, initiated this action requesting 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.
{¶ 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 the appended decision, which includes findings of fact and conclusions of law. The magistrate determined the record contains some evidence on which the commission could rely to deny Stover's request for PTD compensation. Based on the magistrate's determination that Stover has not demonstrated the commission abused its discretion in denying her application for PTD compensation, the magistrate recommends this court deny the requested writ of mandamus.
{¶ 3} Stover has filed objections to the magistrate's decision. Therefore, we must independently review the decision to ascertain whether "the magistrate has properly determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). Stover does not challenge the magistrate's recitation of the pertinent facts; however, she objects to the magistrate's conclusion that the commission did not abuse its discretion in denying her application for PTD compensation. Stover asserts the commission incorrectly found that "there has been no objective evidence or testing submitted to indicate that her intellect and literacy skills are anything less than consistent with her level of education." (Mag. Decision at ¶ 30.) Stover argues the commission abused its discretion in applying that factual finding in its disability analysis because psychological testing allegedly proves she has significant cognitive deficiencies not reflected in her grade level of education. Stover contends the magistrate erroneously rejected this argument. Stover's challenge to the magistrate's conclusions of law is unpersuasive.
{¶ 4} The relevant inquiry in a PTD determination is the claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic v. Indus. Comm., 69 Ohio St.3d 693 (1994); Ohio Adm.Code 4121-3-34(B)(1). Generally, in making this determination, the commission must consider not only medical impairments but also the claimant's age, education, work record, and other relevant non-medical factors. State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987). A claimant's medical capacity to work is not dispositive if the claimant's non-medical factors foreclose employability. State ex rel. Gay v. Mihm, 68 Ohio St.3d 315 (1994).
{¶ 5} This court will not determine that the commission abused its discretion in denying an application for PTD compensation when there is some evidence in the record to support the commission's finding. State ex rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio St.3d 197, 198 (1986). The some evidence standard "reflects the established principle that the commission is in the best position to determine the weight and credibility of the evidence and disputed facts." State ex rel. Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing State ex rel. Pavis v. Gen. Motors Corp., B.O.C. Group, 65 Ohio St.3d 30, 33 (1992).
{¶ 6} Stover fails to demonstrate that the commission's decision was not supported by some evidence. As the magistrate noted, Stover's challenge to the commission's denial of her application for PTD compensation centers on the commission's statement regarding the absence of objective evidence demonstrating that her intellect and literacy skills are inconsistent with her level of education. According to Stover, her score report for the Shipley Institute of Living Scale ("Shipley") psychological testing contradicts the commission's statement. She asserts that the results of the Shipley test demonstrate her cognitive functioning is well below her ninth grade level of education. However, Michael A. Murphy, Ph.D., the psychologist who administered the Shipley test as part of his examination of Stover, opined that her psychological conditions are not work prohibitive, and characterized Stover's intelligence as average. The commission expressly relied on Dr. Murphy's observation that Stover possesses average intelligence as part of its analysis of non-medical vocational factors, including Stover's level of education. Considering the commission is the ultimate evaluator of non-medical vocational factors, State ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266 (1997), and considering Dr. Murphy's observation regarding Stover's intelligence, we cannot conclude the commission abused its discretion in finding no objective evidence that Stover's intellectual functioning is below her ninth grade level of education. Therefore, we reject Stover's challenge to the magistrate's decision.
{¶ 7} Following our independent review of the record pursuant to Civ.R. 53, we find the magistrate correctly determined Stover is not entitled to the requested writ of mandamus. The magistrate properly applied the pertinent law to the salient facts. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. We, therefore, overrule Stover's objections to the magistrate's decision and deny her request for a writ of mandamus.
Objections overruled; writ of mandamus denied.
{¶ 8} I respectfully dissent from the decision of the majority, because I believe the "some evidence" standard which "reflects the established principle that the commission is in the best position to determine the weight and credibility of the evidence and disputed facts," was not met, and because, further, even if it could be shown to have been met under the facts and circumstances of this case, it is an inappropriate standard for determining the propriety of decisions by the Industrial Commission of Ohio, especially when applied to mental health and intellectual functioning determinations. State ex rel. Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing State ex rel. Pavis v. Gen. Motors Corp., B.O.C. Group, 65 Ohio St.3d 30, 33 (1992).
{¶ 9} First, the majority states:
(Emphasis added.) (Majority Decision at ¶ 6.)
{¶ 10} According to Ohio Adm.Code 4121-3-34(C)(1), as cited in State ex rel. Manpower of Dayton v. Indus. Comm., 10th Dist. No. 14AP-376, 2015-Ohio-2650, ¶ 6, the administration of the Shipley test and examination by a psychologist are not non-vocational factors, but rather, medical factors. To this point, I would not refer to the Shipley test or the opinion of Dr. Murphy, whether or not inclusive of his discussion of the results of the Shipley test, as non-medical factors with the attendant legal precedents that apply to non-medical factors as cited by the majority. In Manpower of Dayton we held:
It is well-settled that, when a medical expert expresses a disability opinion based on non-medical factors, such as education and employment history, that opinion is disqualified from evidentiary consideration. State ex rel. Ohio State Univ. v. Allen, Franklin App. No. 03AP-823, 2004-Ohio-3839, at ¶ 18, citing State ex rel. Shields v. Indus. Comm. (1996), 74 Ohio St.3d 264, 268, 1996 Ohio 140, 658 N.E.2d 296, and State ex rel. Catholic Diocese of Cleveland v. Indus. Comm. (1994), 69 Ohio St.3d 560, 1994 Ohio 392, 634 N.E.2d 1012. "However, where the doctor's medical and vocational commentaries can be separated, the commission may simply disregard a physician's opinions on vocational matters and accept the purely medical opinion." Allen at ¶ 18, citing Catholic Diocese. Thus, when it is clear from the doctor's report that he or she rendered a medical opinion based solely on the allowed conditions, the commission may rely on the medical opinion while ignoring any superfluous vocational opinion offered by the doctor. Steelcraft Mfg. Co. v. Indus. Comm., Franklin App. No. 01AP-1271, 2002-Ohio-3778, at ¶ 37, citing Catholic Diocese.
Manpower of Dayton at ¶ 47, citing State ex rel. DaimlerChrysler Corp. v. Bilbao, 10th Dist. No. 04AP-861, 2005-Ohio-28...
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