State ex rel. Farrell v. Indus. Comm. , 2018 Ohio 2164 ( 2018 )

[Cite as State ex rel. Farrell v. Indus. Comm., 2018-Ohio-2164.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Steven R. Farrell, :
Relator, :
v. : No. 17AP-126
The Ohio Industrial Commission : (REGULAR CALENDAR)
and
Tanknology Inc., :
Respondents. :
D E C I S I O N
Rendered on June 5, 2018
On brief: Spears & Associates Co., L.P.A., and David R.
Spears, for relator.
On brief: Michael DeWine, Attorney General, and Natalie J.
Tackett, for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Steven R. Farrell, initiated this original action requesting a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate
the November 17, 2016 order of its staff hearing officer ("SHO") denying his application for
permanent total disability ("PTD") compensation and to enter an order granting his
application.
{¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate rendered a decision
No. 17AP-126 2
that includes findings of fact and conclusions of law. The magistrate's decision, which is
appended hereto, recommends this court deny Farrell's request for a writ of mandamus.
{¶ 3} Farrell 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).
Farrell does not challenge the magistrate's recitation of the pertinent facts; however, he
objects to the magistrate's conclusion that the commission did not abuse its discretion in
denying his application for PTD compensation. More specifically, Farrell asserts the
doctrine of stare decisis operates to compel the commission to conclude he is not capable
of sustained remunerative employment.
{¶ 4} 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).
{¶ 5} In denying Farrell's application for PTD compensation, the commission
relied on the report of Stephen Halmi, Psy.D., accepting his opinion that Farrell "is capable
of performing work in a position with the same or routine daily expectations within a
supportive environment." (Nov. 17, 2016 SHO Decision at 2.) However, Farrell moved for
reconsideration on the grounds that the commission, in a separate and wholly unrelated
decision, granted a different injured worker's application for PTD where Dr. Halmi
rendered an opinion with nearly identical language as the opinion he rendered in Farrell's
case. In the unrelated case, the commission concluded that, despite Dr. Halmi's stated
conclusion that the injured worker would be capable of performing work in a low to
moderate stress position, "the restrictions Dr. Halmi specified in his report are so extensive
and severe as to constitute in reality an opinion the Injured Worker is not capable of
sustained remunerative employment." (Ex. A at 2, attached to Dec. 21, 2016 Mot. for
Recons.)
No. 17AP-126 3
{¶ 6} Farrell now argues that because the opinions rendered by Dr. Halmi in the
two cases are nearly identical, the doctrine of stare decisis compels the commission to reach
the same conclusion in both his case and the case of the unrelated worker. In considering
Farrell's stare decisis argument, the magistrate concluded stare decisis did not compel this
court to grant Farrell's requested writ. However, in reaching that conclusion, the
magistrate opined the commission erroneously used Dr. Halmi's opinion in the unrelated
case in order to grant the unrelated injured worker's application for PTD benefits. Because
that former case was not before the magistrate and is not before the court at this time, it
was error for the magistrate to render an opinion on the propriety of the commission's
reliance on Dr. Halmi's opinion in that unrelated case.
{¶ 7} Despite the magistrate's error in opining on the commission's separate
unrelated case, we nonetheless agree with the magistrate that the doctrine of stare decisis
does not compel us to issue Farrell's requested writ of mandamus in this case. According
to the doctrine of stare decisis, "courts follow 'controlling precedent, thus creating stability
and predictability in our legal system.' " Rural Health Collaborative of S. Ohio, Inc. v.
Testa, 145 Ohio St. 3d 430, 2016-Ohio-508, ¶ 38, quoting Westfield Ins. Co. v. Galatis, 100
Ohio St. 3d 216, 2003-Ohio-5849, ¶ 1. However, as the Supreme Court of Ohio has noted,
"stare decisis typically applies to principles of law, not findings of fact." Rural Health
Collaborative of S. Ohio, Inc. at ¶ 38, citing State v. Bethel, 10th Dist. No. 07AP-810, 2008-
Ohio-2697, ¶ 26 ("[s]tare decisis has two aspects: (1) that in the absence of overriding
considerations courts will adhere to its [sic] own previously announced principles of law;
and (2) that courts are bound by and must follow decisions of a reviewing court that has
decided the same issue"); Terrell v. Williams, 10th Dist. No. 79AP-16 (May 24, 1979)
(stating stare decisis is "based upon following controlling legal principals [sic] from former
judgments," and is "not applicable where the prior case decided factual matters").
{¶ 8} To conclude that the commission must use Dr. Halmi's report to determine
Farrell is entitled to PTD would be to ignore the myriad factual intricacies at play in both
Farrell's case and the case of the unrelated injured worker. Both decisions involve heavily
fact-dependent determinations by the commission, and it is the commission's role, in each
case it evaluates, to determine the appropriate weight given to the evidence before it. See
State ex rel. Moss v. Indus. Comm., 75 Ohio St. 3d 414 (1996) (noting the commission is the
No. 17AP-126 4
"exclusive evaluator of disability" and the courts will not reevaluate and reweigh the
evidence before the commission); and State ex rel. Teece v. Indus. Comm., 68 Ohio St. 2d
165, 169 (1981) ("[q]uestions of credibility and the weight to be given evidence are clearly
within the Commission's discretionary powers of fact-finding"). Thus, because we agree
with the magistrate that the doctrine of stare decisis does not compel the commission to
grant Farrell's application for PTD, we reject Farrell's challenge to the magistrate's decision.
{¶ 9} Following our independent review of the record pursuant to Civ.R. 53, we find
the magistrate correctly determined Farrell is not entitled to the requested writ of
mandamus. Accordingly, we adopt the magistrate's factual findings, and, to the extent
outlined above, adopt the magistrate's conclusions of law as modified. We, therefore,
overrule Farrell's objections to the magistrate's decision and deny his request for a writ of
mandamus.
Objections overruled; writ of mandamus denied.
BROWN, P.J., and BRUNNER, J., concur.
No. 17AP-126 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Steven R. Farrell, :
Relator, :
v. : No. 17AP-126
The Ohio Industrial Commission : (REGULAR CALENDAR)
and
Tanknology Inc., :
Respondents. :
MAGISTRATE'S DECISION
Rendered on January 18, 2018
Spears & Associates Co., L.P.A., and David R. Spears, for
relator.
Michael DeWine, Attorney General, and Natalie J. Tackett, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 10} In this original action, relator, Steven R. Farrell, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the November 17, 2016 order of its staff hearing officer ("SHO") that denies his
application for permanent total disability ("PTD") compensation, and to enter an order
granting the application.
Findings of Fact:
{¶ 11} 1. On March 11, 2002, relator injured his lower back while employed as a
technician for respondent Tanknology Inc., a state-fund employer. The injury occurred
when relator was moving a heavy manway cover.
No. 17AP-126 6
{¶ 12} 2. The industrial claim (No. 02-333346) is allowed for:
Sprain lumbosacral; protruding disc L3-L4; aggravation pre-
existing annular tears L2-3, L3-4, and L4-5; depressive
disorder.
{¶ 13} 3. On November 6, 2014, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), relator was examined by psychiatrist James R. Hawkins, M.D.
In his ten-page narrative report, Dr. Hawkins opined that relator has a depressive
disorder caused by the industrial injury. Dr. Hawkins also opined that the psychological
condition prevents relator's return to his former position of employment.
{¶ 14} 4. On December 9, 2014, the bureau mailed an order additionally allowing
the claim for "depressive disorder NEC." The bureau order also awarded temporary total
disability ("TTD") compensation based on the report of Dr. Hawkins.
{¶ 15} 5. Following a March 2, 2016 hearing, an SHO issued an order terminating
TTD compensation effective November 20, 2015 on grounds that the allowed
psychological condition has reached maximum medical improvement ("MMI").
{¶ 16} 6. Earlier, on January 28, 2016, at relator's request, he was examined by
clinical psychologist Regina McKinney, Psy.D. In her two-page narrative report, dated
February 4, 2016, Dr. McKinney opined:
It is my opinion based on a reasonable degree of psychological
certainty that Mr. Farrell is permanently and totally disabled
from all forms of sustained remunerative employment based
solely upon the allowed psychological condition in his claim.
His symptoms of depression are severe and cause significant
occupational and social impairment. Evaluation findings
indicate that his symptoms of depression prohibit him from
even sedentary type positions. He lacks motivation to
maintain consistent attendance and would likely have
significant difficulty focusing to complete tasks. He appears to
be easily overwhelmed and easily angered. He had
altercations at work and his symptoms of depression would
interfere with his ability to maintain productive work
relationships. He would likely have difficulty sustaining
attention and concentration even when working
independently. It would be difficult for him to multi-task and
complete job tasks in a timely fashion.
No. 17AP-126 7
{¶ 17} 7. On March 9, 2016, relator filed an application for PTD compensation. In
support, relator submitted the February 4, 2016 report of Dr. McKinney.
{¶ 18} 8. On April 26, 2016, at the commission's request, relator was examined by
psychologist Stephen W. Halmi, Psy.D. In his 11-page narrative report, Dr. Halmi opined:
Based on this examination, it is my opinion that Mr. Farrell
has reached MMI for his allowed psychological condition of
Depressive Disorder. My opinion is based on several factors.
For example, there is no evidence, based on Mr. Farrell's self-
report, that his depression has improved significantly with the
utilization of outpatient psychotherapy and psychotropic
medication. Objective test results indicate that he remains
depressed. It is my opinion that his depression is maintained
by his belief that he is incapable of changing his circumstances
as well as by the fact that his physical restrictions prevent him
from engaging in productive and/or enjoyable activities. It is
my opinion that his belief that he is helpless and hopeless to
influence his life maintains his depression. He also remains
miserable because of his chronic pain.
It is my opinion that Mr. Farrell's Depression results in a
moderate impairment in his overall functioning. The final
percentage of impairment is an average of the percentages of
impairment for the four areas of functioning listed above (35%
+ 35% + 35% + 35%=140%; 140%/4=35%). Thus, it is my
opinion that his Depressive Disorder results in a 35% Whole
Person Impairment (WPI) as referenced in the AMA Guides
to the Evaluation of Permanent Impairment-Fifth Edition.
***
Any mention of impairment is based on his allowed
psychological condition of Depressive Disorder. It is my
opinion that Mr. Farrell's ability to carry out simple, one and
two step instructions is not impaired. It is my opinion that his
ability to understand and remember detailed instructions that
do not surpass his intellectual abilities is moderately
impaired. It is my opinion that his ability to carry out detailed
instructions and maintain adequate attention and
concentration for extended periods of time is moderately
impaired. It is my opinion that his ability to work within a
schedule, maintain attendance, and be punctual without
impairment from his psychological condition is moderately
impaired. It is my opinion that his ability to work with or close
to others without being distracted by them is moderately
No. 17AP-126 8
impaired. It is my opinion that his ability to work quickly and
efficiently, meet a deadline, and complete a normal workday
and work week without interruption is moderately impaired.
It is my opinion that his ability to work at a consistent pace
without an unreasonable number and length of breaks is
moderately impaired. It is my opinion that his ability to
interact with the general public is mildly impaired. It is my
opinion that his ability to accept instructions, respond
appropriately to criticism from supervisors, and his ability to
get along with coworkers without being distracted by them is
moderately impaired. It is my opinion that his ability to
maintain socially appropriate behavior and maintain the basic
standard of cleanliness and grooming is mildly impaired. It is
my opinion that his ability to respond appropriately to
changes at work, set realistic goals, and make plans
independently of others is moderately impaired. Based on
these impairments, it is my opinion that Mr. Farrell would be
capable of working in a low to moderate stress position.
Because of his depressive symptoms, it is my opinion that he
would initially work best in a relatively simple job in which he
was required to complete straight forward tasks. This would
help him develop a sense of mastery and improve his self-
esteem. He would likely work best in a predictable job in
which there were little changes in tasks and expectations from
day to day. Because of his concentration problems, clear
guidelines and protocols, possibly written out and posted,
would likely benefit him. He would work best if afforded
flexibility with regard to pace of work, timing of breaks, exact
hours worked, and possibly days worked, to accommodate his
fluctuation in energy level. Because of his irritability and
anhedonia, it would be best if he did not work with the general
public, at least initially. It would also be in his best interest if
his supervisor was aware of his depression and supportive of
the accommodations needed for him to be a successful
employee. At this time, it is my opinion that he could not work
competitively in a fast paced environment or in a job that
required quotas and/or a high demands for productivity and
quick turnarounds. In summary, he would work best in a
routine, predictable job with consistent expectations from day
to day in a highly supportive work environment.
{¶ 19} 9. On May 19, 2016, Dr. Halmi completed a form captioned "Occupational
Activity Assessment, Mental & Behavioral Examination." On the form, Dr. Halmi
indicated by his mark "[t]his Injured Worker is capable of work with the
No. 17AP-126 9
limitation(s)/modification(s) noted below." In the space provided, Dr. Halmi wrote "see
report."
{¶ 20} 10. Earlier, on May 4, 2016, at the commission's request, relator was
examined by Steven S. Wunder, M.D., who specializes in physical medicine and
rehabilitation. In his four-page narrative report dated May 4, 2016, Dr. Wunder opines:
Based on the AMA Guides to the Evaluation of Permanent
Impairment, Fifth Edition, for the recognized and allowed
condition of a sprain, lumbosacral, that is zero percent to the
whole person.
For the allowances of protruding disc L3-L4; aggravation of
pre-existing annular tears, L2-L3, L3-L4 and L4-L5, he would
have a DRE category 3 impairment, that is 10 percent to the
whole person.
His combined impairment would be 10 percent to the whole
person.
***
The Physical Strength Rating form has been completed. He
would be capable of a full range of light functional capacities.
{¶ 21} 11. On May 4, 2016, Dr. Wunder completed a "Physical Strength Rating"
form. On the form, Dr. Halmi indicated by his mark that relator is capable of "light work."
{¶ 22} 12. Following a November 17, 2016 hearing, an SHO issued an order
denying relator's PTD application. The order states reliance on the medical reports of
Drs. Wunder and Halmi in determining residual functional capacity. Ohio Adm.Code
4121-3-34(B)(4). The SHO found it necessary to consider the non-medical factors. The
SHO's order states:
The Injured Worker is a 59 year old male with a high school
education. He has a varied work history. For five years (1978-
1984) he worked as a laborer on an assembly line. Next, he
worked as a carpenter for both residential and commercial
construction for 16 years (1984-2000). For two years he
worked as a yardman, operating both forklifts and overhead
cranes (2000-2002). From 2000 to 2002 the Injured Worker
worked cleaning underground storage tanks. He was injured
on 03/11/2002 when he picked up a manway cover, weighing
50 to 75 pounds, pulling his lower back. The claim was initially
No. 17AP-126 10
recognized for lumbosacral sprain. In 2003 the protruding
L3-4 disc was added to the claim. The annular tears were
allowed by way of aggravation in 2005. Treatment for the low
back has been conservative, including physical therapy,
chiropractic treatment and the medications Neurontin,
Flexeril and Ibuprofen.
Following the work injury, the Injured Worker has twice
successfully completed a vocational rehabilitation program.
Following his referral to vocational rehabilitation in 2005 the
Injured Worker returned to work in July, 2006 as a
compliance officer for a pain management physician. During
his employment the Injured Worker underwent two year on-
the-job training with Information Systems and Investigative
Services, Ltd. In this position he performed verification of
patient demographics; background checks and pill counts for
patients; and participated in the performance of drug screens.
The Injured Worker utilized a copier, computer scanner and
some computer data entry. He worked in this capacity until
2011, when the office closed. The Injured Worker participated
in a three week job seeking skills training and eight weeks of
job placement/development/job search program in 2012,
finding employment as a monitor at Transitions, Inc. This
employment met the physical restrictions provided by his
physician of record Joseph Valli, D.C. of sitting and standing
up to two hours a day; walking up to an hour; lifting and
carrying limited to 20 pounds; occasional bending, squatting,
crawling and reaching; no climbing; and no use of push/pull
arm controls or repetitive use of leg controls. In this position
the Injured Worker worked in a half-way house, monitoring
paroled inmates. Duties of this position included walking
flights of stairs, performing drug searches, and patting down
the residents. He worked in this capacity for 21 months. He
left this position due to having increased back pain and losing
his patience with the residents.
Following his departure from employment in July, 2014, the
claim was amended in December, 2014 for depressive
disorder. The Injured Worker received temporary total
disability compensation until 11/20/2015, when his
psychologist, Christopher Ward, Ph.D. opined the depression
reached maximum medical improvement. The Injured
Worker was referred to vocational rehabilitation in December,
2015. He was found not to be a feasible candidate because he
has the necessary skills to conduct a self-directed job search.
Closure of his vocational rehabilitation file was affirmed by
No. 17AP-126 11
Careworks due to the Injured Worker's psychologist
indicating he was not ready to return to work. He has
supportive therapy once a month with a therapist, Jennifer
Conley, LISW, and Regina McKinney, Psy.D. and is prescribed
Effexor by Christopher Rowe, M.D.
Regina McKinney, Psy.D., a clinical psychologist, examined
the Injured Worker on 01/28/2016 with regard to his
application for permanent total disability. She found that
secondary to the allowed psychological condition the Injured
Worker has limited attention and concentration, with testing
scores indicating severe symptoms of depression. Dr.
McKinney opined the Injured Worker's depressive symptoms
render him unmotivated to maintain attendance and impair
his ability to focus on completing tasks, even when working
independently. These deficits, combined with being easily
overwhelmed and angered, limit his ability to complete tasks
on time and multi-task, resulting in an inability to perform
even sedentary work. Dr. McKinney opined the Injured
Worker is "permanently and totally disabled form all forms of
sustained remunerative employment based solely upon the
allowed psychological condition in his claim."
Steven Wunder, M.D., a physical medicine and rehabilitation
specialist, examined the Injured Worker on 05/04/2016
regarding the allowed physical conditions and the permanent
total disability issue. Based on his examination findings, he
opined the Injured Worker retains the physical ability to
engage in light work without additional restriction.
Stephen Halmi, Psy.D. performed a mental and behavioral
health assessment of the Injured Worker on 04/26/2016
regarding the allowed psychological condition and the
permanent total disability issue. He found the Injured Worker
capable of working "in a low to moderate stress position." Dr.
Halmi found moderate impairment in the Injured Worker's
ability to: understand and remember detailed instructions;
maintain adequate attention and concentration for an
extended period of time; maintain a consistent pace of work;
maintain a schedule, attendance and be punctual; work
closely with other people without being distracted by them;
get along with co-workers and supervisors regarding
accepting instruction and criticism; and responding
appropriately to changes, set realistic goals and
independently plan. Mildly impaired abilities include
No. 17AP-126 12
interacting with the general public and maintaining levels of
basic hygiene.
The Staff Hearing Officer accepts and finds persuasive the
opinion of Dr. Wunder the Injured Worker is physically
capable of performing light work. The Staff Hearing Officer
also accepts and finds persuasive the opinion of Dr. Halmi the
Injured Worker is capable of performing work in a position
with the same or routine daily expectations within a
supportive environment.
The Staff Hearing Officer finds that the Injured Worker's age
of 59 to be a neutral vocational factor. The Injured Worker has
five to six years before attaining the generally accepted age of
retirement (65 to 66 years of age). Additionally, the Staff
Hearing Officer finds individuals of the Injured Worker's age
possess sufficient time to pursue the acquisition of new job
skills, at a minimum through on-the-job or short-term
training that could enhance their potential for re-
employment. The Injured Worker is a high school graduate.
Per the IC-2 Application, he has the ability to read and write.
He reports limited ability to perform basic math despite being
employed for 16 years in the carpentry field. The Injured
Worker's career path has involved heavy, medium, light and
sedentary level work. The Injured Worker denies having
computer skills, noting his work at the doctor's office was
limited to inputting some data or scanning documents. He
does not utilize the home computer due to both his reported
lack of ability and interest. He does not own a smartphone.
Despite his downplay of any abilities, the Injured Worker was
able to successfully return to work twice after vocational
rehabilitation. His work has been vocationally diverse and the
Injured Worker has demonstrated resiliency in his ability to
be employed. These are positive factors to consider when
determining ability to return to the workforce. Moreover, the
Injured Worker has experience working at a physician's office,
a workplace ideally suited for routine work within a
supportive environment. Since last working in 2014 and being
found at maximum medical improvement in 2015 the Injured
Worker has not attempted to seek any type of work. The
Injured Worker presented to hearing well groomed and
maintained eye contact when answering all questions posed.
He provided detailed answers regarding his former jobs.
As set forth in State ex rel. Speelman v. Indus. Comm., 73
Ohio App.3d, 757 * * * (10th Dist.1992) and State ex rel.
No. 17AP-126 13
Cunningham v. Indus. Comm., 91 Ohio St. 3d 261 * * * (2001)
the Industrial Commission, when considering a claim for
permanent total disability compensation, may consider not
just the Injured Worker's past employment skills, but also
those skills that may reasonably be developed. Given the
Injured Worker's education, work history and involvement
with vocational rehabilitation, the Staff Hearing Officer finds
he is educational[ly] and vocationally capable of finding work
and learning on-the-job skills to perform routine work within
the light duty physical demand category.
As stated in B.F. Goodrich Co. v. Indus. Comm., 73 Ohio St. 3d
525 * * * (1995), an award of permanent total disability
compensation should be allowed only when there is no
possibility for reemployment. As the Injured Worker has the
residual functional [capacity] to perform light work activity,
as described by Dr. Wunder and the residual
mental/behavioral capacity to perform work, as described by
Dr. Halmi, when considering the impairment arising from the
allowed conditions; because the Injured Worker is qualified
by age, education and literacy level to obtain and perform
such work; and he has or retains the capacity to acquire new
job skills, at least through informal means, that could enhance
his potential for returning to the workforce, the Staff Hearing
Officer concludes that the Injured Worker is capable of
sustained remunerative employment and is not permanently
totally disabled. Therefore, the IC-2 Application, filed
03/09/2016, is denied.
{¶ 23} 13. On December 21, 2016, relator moved for reconsideration of the SHO's
order of November 17, 2016. In support of reconsideration, relator submitted as an
exhibit a copy of a commission order issued in another industrial claim of an injured
worker whose name and claim number is redacted. Apparently, the three-member
commission order was issued following a November 1, 2016 commission hearing. The
order grants a request for reconsideration filed by the unidentified injured worker and
awards PTD compensation upon the exercise of continuing jurisdiction.
{¶ 24} 14. In awarding PTD compensation in another industrial claim, the three-
member commission explains:
It is the decision of the Commission to grant the Injured
Worker's IC-2 Application for Compensation for Permanent
Total Disability, filed 03/21/2016.
No. 17AP-126 14
Permanent total disability compensation is hereby awarded
from 02/01/2016, less any compensation which may have
been previously awarded from said date, to continue without
suspension unless future facts or circumstances should
warrant the stopping of the award; and that payment be made
pursuant to R.C. 4123.58(A).
The Commission finds in a report dated 02/01/2016, based
on an examination conducted on such date, Christopher
Ward, Ph.D., the Injured Worker's examining psychologist,
opined the Injured Worker is permanently and totally
disabled as a result of the impairment arising from the
allowed psychological condition of the claim.
The Commission further finds in a report dated 06/02/2016,
Stephen Halmi, Psy.D., a psychologist examining the Injured
Worker at the Commission's request, opined when the
impairment arising from the allowed psychological condition
is considered, the Injured Worker would be capable of
performing work in a low to moderate stress position.
However, Dr. Halmi also specified a number of additional
restrictions applicable to any employment the Injured Worker
would undertake, as follows:
Because of his depressive symptoms, it is my
opinion that he would initially work best in a
relatively simple job in which he was required to
complete straight forward tasks . . . . He would
likely work best in a predictable job where there
were little changes in tasks and expectations
from day to day. Because of his concentration
problems, clear guidelines and protocols,
possibly written out and posted, would likely
benefit him.
He would work best if afforded flexibility with
regard to pace of work, timing of breaks, exact
hours worked, and possibly days worked to
accommodate his fluctuation in energy level.
Because of his irritability and anhedonia, it
would be best if he did not work with the general
public, at least initially. It would also be in his
best interest if his supervisor was aware of his
depression and supportive of the
accommodations needed for him to be a
successful employee. At this time, it is my
No. 17AP-126 15
opinion hat he could not work competitively in
a fast paced environment or in a job that
required quotas and/or high demands for
productivity and quick turnarounds . . . .
The Commission finds the restrictions Dr. Halmi specified in
his report are so extensive and severe as to constitute in reality
an opinion the Injured Worker is not capable of sustained
remunerative employment when the impairment arising from
the allowed psychological condition is considered, consistent
with the opinion of Dr. Ward in his 02/01/2016 report. As
such, the Commission finds persuasive Dr. Ward's opinion the
Injured Worker is permanently and totally disabled as a result
of the medical impairment arising from the allowed
psychological condition of the claim. Accordingly, the
Commission grants permanent total disability on a medical
impairment basis, consistent with State ex rel. Speelman v.
Indus. Comm., 73 Ohio App. 3d 757 * * * (1992), finding a
discussion of non-medical disability factors unnecessary.
The Commission finds the start date for the award of
permanent total disability compensation is 02/01/2016, the
date of the report from Dr. Ward certifying the Injured
Worker's permanent total disability status.
(Emphasis omitted.)
{¶ 25} 15. On January 13, 2017, the three-member commission, splitting two-to-
one, denied relator's December 21, 2016 motion for reconsideration in the instant case.
{¶ 26} 16. On February 17, 2017, relator, Steven R. Farrell, filed this mandamus
action.
Conclusions of Law:
{¶ 27} The main issue is whether the doctrine of stare decisis compels this court to
issue a writ ordering the commission to treat the April 26, 2016 report of Dr. Halmi in the
instant claim in the same manner as the commission treated the June 2, 2016 report of
Dr. Halmi in the industrial claim of another injured worker.
{¶ 28} Finding that the doctrine of stare decisis does not compel this court to issue
a writ in the instant claim, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
No. 17AP-126 16
{¶ 29} To begin, some observations are in order. The commission's order
appended to relator's motion for reconsideration as Exhibit A ("Exhibit A order") states
reliance on the February 1, 2016 report of examining psychologist Christopher
Ward, Ph.D., in awarding PTD compensation based solely on the allowed psychological
condition. The start date for the PTD award is February 1, 2016, the date of Dr. Ward's
report. Thus, Dr. Ward's report fully supports the PTD award.
{¶ 30} In the Exhibit A order, the commission in effect rewrites the conclusion of
Dr. Halmi's June 2, 2016 report. That is, the commission deletes Dr. Halmi's medical
opinion that the allowed psychological condition permits "work in a low to moderate
stress position" and substitutes the commission's opinion that "the restrictions Dr. Halmi
specified in his report are so extensive and severe as to constitute in reality an opinion the
Injured Worker is not capable of sustained remunerative employment."
{¶ 31} While the commission and its hearing officers have the duty to determine
the weight and credibility to be given to the medical reports admitted into evidence, State
ex rel. Burley v. Coil Packing, Inc., 31 Ohio St. 3d 18, 21 (1987), they cannot render their
own opinion on a medical issue because they do not have medical expertise. State ex rel.
Yellow Freight Sys., Inc. v. Indus. Comm., 81 Ohio St. 3d 56, 58 (1998). State ex rel.
Barnett v. Indus. Comm., 10th Dist. No. 13AP-161, 2014-Ohio-311, ¶ 18.
{¶ 32} Thus, in its Exhibit A order, the commission cannot rely on the rewritten
report of Dr. Halmi. It was improper for the commission to do so. State ex rel. Honda of
Am. Mfr., Inc. v. Indus. Comm., 10th Dist. No. 11AP-65, 2012-Ohio-1371; State ex rel.
Cleveland Browns Football Co., LLC v. Indus. Comm., 10th Dist. No. 10AP-564, 2011-
Ohio-5656.
{¶ 33} Given that the commission had no authority to rewrite Dr. Halmi's June 2,
2016 report and then rely on the rewritten report to support the PTD award, this court
has no authority to issue a writ compelling the commission to repeat the error here.
{¶ 34} Here, relator asserts the April 26, 2016 report of Dr. Halmi relied on by the
commission in the instant industrial claim is "identical" to the June 2, 2016 report of Dr.
Halmi that is quoted by the commission in the Exhibit A order regarding another
industrial claim. Based on his assertion that the April 26 and June 2, 2016 reports of Dr.
Halmi are "identical," relator concludes the reports must be treated the same by the
No. 17AP-126 17
commission in the two industrial claims. Relator argues that the doctrine of stare decisis
compels this result. Relator is incorrect. The doctrine of stare decisis does not compel
the result relator seeks through this mandamus action.
{¶ 35} Under the legal doctrine of stare decisis, courts follow controlling
precedent, thereby creating stability and predictability in our legal system. State ex rel.
Davis v. Pub. Emps. Retirement Bd., 120 Ohio St. 3d 386, 2008-Ohio-6254, ¶ 38. The
Supreme Court of Ohio adheres to stare decisis as a means of thwarting the arbitrary
administration of justice as well as providing a clear rule of law by which the citizenry can
organize their affairs. Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849,
¶ 43, citing State ex rel. Rocky River v. State Emp. Relations Bd., 43 Ohio St. 3d 1, 4-5
(1989). The doctrine is of fundamental importance to the rule of law. Id. at ¶ 44.
{¶ 36} Stare decisis typically applies to principles of law, not findings of fact. Rural
Health Collaborative of S. Ohio, Inc. v. Testa, 145 Ohio St. 3d 430, 2016-Ohio-508, ¶ 38.
Relator seems to acknowledge this limitation of the doctrine when he argues:
The policy of stare decisis generally involves decisions of legal
precedent. In the instant case, the Industrial Commission
issued an order on 12-3-16 finding that certain restrictions
identified in a medical report from Stephen Halmi, Psy.D.
were so severe and extensive as to constitute a finding that a
Claimant was not capable of sustained remunerative
employment. While this precedent would have applicability
only in the limited cases where Dr. Halmi has rendered
opinion identifying the exact restrictions set forth in the
decision on 12-3-16, it clearly does have applicability to the
factual situation now before the Court.
(Relator's Brief at 8.)
{¶ 37} As earlier noted, Dr. Halmi authored the April 26, 2016 report relied on by
the commission in the instant claim following a November 17, 2016 hearing before an
SHO.
{¶ 38} Earlier, as indicated by the Exhibit A order, following a November 1, 2016
hearing, the three-member commission granted reconsideration and awarded PTD
compensation based in part on a June 2, 2016 report from Dr. Halmi. Thus, on the date
of the November 17, 2016 hearing at issue in the instant claim, the commission had
No. 17AP-126 18
already awarded PTD compensation based in part on Dr. Halmi's June 2, 2016 report.
Relator asserts that, under these circumstances, the SHO at the November 17, 2016
hearing in the instant claim was compelled to follow the commission's previous treatment
of Dr. Halmi's report following the November 1, 2016 hearing.
{¶ 39} It is clear that the doctrine of stare decisis has no application here. That is,
at the November 17, 2016 hearing in the instant claim, the SHO was not bound by the
decision of the three-member commission following the November 1, 2016 hearing.
Relator is endeavoring unsuccessfully to use the doctrine as to the factual findings of the
three-member commission order of November 1, 2016.
{¶ 40} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).