State ex rel. Young v. Butler Cty. Personnel Office , 2014 Ohio 5331 ( 2014 )

[Cite as State ex rel. Young v. Butler Cty. Personnel Office, 2014-Ohio-5331.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Wanda Young, :
Relator, :
v. : No. 14AP-3
Butler County Personnel Office and : (REGULAR CALENDAR)
Industrial Commission of Ohio,
:
Respondents.
:
D E C I S I O N
Rendered on December 2, 2014
Barron Peck Bennie & Schlemmer, LPA, and Mark L.
Newman, for relator.
Board Counsel, Butler County Commissioners, and Gary L.
Sheets, for respondent Butler County Personnel Office.
Michael DeWine, Attorney General, Lisa R. Miller, and
Cheryl J. Nester, for respondent Industrial Commission of
Ohio.
IN MANDAMUS
BROWN, J.
{¶ 1} Relator, Wanda Young, has filed an original action requesting that this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio, to vacate
its order denying her permanent total disability compensation, and to enter an order
granting such compensation.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
No. 14AP-3 2
appended decision, including findings of fact and conclusions of law, recommending that
this court deny relator's request for a writ of mandamus. No objections have been filed to
that decision.
{¶ 3} Based upon an independent review of the record, and finding no errors of
law or other defect on the face of the magistrate's decision, this court adopts the
magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's recommendation, relator's request
for a writ of mandamus is denied.
Writ of mandamus denied.
TYACK and LUPER SCHUSTER, JJ., concur.
_________________
[Cite as State ex rel. Young v. Butler Cty. Personnel Office, 2014-Ohio-5331.]
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Wanda Young, :
Relator, :
v. : No. 14AP-3
Butler County Personnel Office and : (REGULAR CALENDAR)
Industrial Commission of Ohio,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on September 4, 2014
Barron Peck Bennie & Schlemmer, LPA, and Mark L.
Newman, for relator.
Board Counsel, Butler County Commissioners, and Gary L.
Sheets, for respondent Butler County Personnel Office.
Michael DeWine, Attorney General, Lisa R. Miller and
Cheryl J. Nester, for respondent Industrial Commission of
Ohio.
IN MANDAMUS
{¶ 4} In this original action, relator, Wanda Young, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate its order
denying her permanent total disability ("PTD") compensation, and to enter an order
granting the compensation.
No. 14AP-3 4
Findings of Fact:
{¶ 5} 1. Relator has four industrial claims arising out of her employment as a
nursing assistant at the Butler County Care Facility. The commission lists the employer as
the Butler County Personnel Office
{¶ 6} 2. On June 24, 2005, relator sustained an industrial injury (claim No. 05-
369290), which is allowed for:
Sprain left elbow; left lateral epicondylitis; tendinopathy of
the brachial tendon left elbow; partial tear of brachial tendon
left.
{¶ 7} 3. On October 29, 2006, relator sustained an industrial injury (claim No.
06-394743), which is allowed for:
Right shoulder sprain; impingement syndrome right
shoulder; rotator cuff tear right shoulder; synovitis right
shoulder.
{¶ 8} 4. On May 2, 2007, relator sustained an industrial injury (claim No. 07-
825779), which is allowed for:
Sprain lumbosacral; substantial aggravation L4-5 and L5-S1
spondylosis; bilateral posterior superior iliac spine ten-
donitis.
{¶ 9} 5. On August 26, 2008, relator sustained an industrial injury (claim No. 08-
852242), which is allowed for:
Sprain of neck; sprain of right knee and leg; substantial
aggravation pre-existing right knee chondromalacia; major
depressive disorder.
{¶ 10} 6. Relator also has an industrial injury (claim No. 00-515296) arising out of
her employment as a waitress/cook at "The Donut Shack." This injury occurred
September 12, 2000 and is allowed for: "Second degree burn left foot.
{¶ 11} 7. The record contains a five-page document dated January 18, 2012
captioned "Ohio Valley Goodwill Industries Work Adjustment Services Discharge
Summary." The Goodwill summary indicates that, during November and December
2011, relator participated in a four-week transition program designed to assist her to
find new employment
No. 14AP-3 5
{¶ 12} The Goodwill summary assesses relator's "strengths" and "barriers" to
employment:
STRENGTHS:
 Provided documentation necessary to complete the
Employment Eligibility Verification (I-9) form
required of all newly hired employees
 Has valid driver's license and own[s] vehicle
 Exhibited awareness of employers' expectations
regarding "soft" skills
 Capable of following verbal instructions and
demonstrations
 Capable of learning new procedures/work tasks
 Demonstrated ability to focus on work tasks
 Courteous, polite
 Exhibited sufficient stamina for a four-hour workday
on sedentary jobs
BARRIERS TO EMPLOYMENT:
 No recent work history
 Lacks high school education/GED
 Physical limitations including no lifting over 20 lbs
and only occasional lifting of 20 lbs or less; no
squatting/kneeling; bending, twisting, reaching below
knee, pushing/pulling, standing/walking limited to
occasionally; sitting and lifting above the shoulders
limited to frequently
The Goodwill summary concludes:
DESIRED OUTCOMES AND EXPECTATIONS
ESTABLISHED/ACHIEVED:
Wanda was referred for Work Adjustment services to assess
her ability to transition to different types of work while
assessing her work behaviors, assets and deficits for
employment.
Wanda demonstrated the ability to easily transition to
different types of work and exhibited the work behaviors
expected of a competitive employee. She was attentive when
directions were provided, retained instructions and was cap-
able of working independently. Wanda's physical restrictions
and limited stamina for more than a four-hour day in a
No. 14AP-3 6
sedentary position would appear to be insurmountable
barriers to obtaining employment in a retail position, as she
desired.
Without a GED, Wanda's other vocational interest, working
with computers, would be unlikely. At this time, her
academic skills, concentration and attention to detail would
indicate that she would struggle with obtaining her GED and
computer training.
REASONS FOR DISCHARGE:
Wanda completed her four-week adjustment program.
{¶ 13} 8. The record contains a one-page document captioned "Vocational
Rehabilitation Closure Report," which is a form (RH-21) of the Ohio Bureau of Workers'
Compensation ("bureau"). The document was approved by a vocational rehabilitation
case manager on May 30, 2012. The document states:
Ms. Young's case was assigned to this case manager on
10/20/11. Barriers identified for Ms. Young included,
sedentary work restrictions and no GED. A four week work
adjustment program was recommended and Ms. Young
demonstrated that she could tolerate a different work
environment. Based on this JSST and job search services
were recommended. Ms. Young also had a GED assessment
and studied for the test on her own. Her academic levels
were so low that it was impossible to assess how long it
would take her to be able to reach a level when she could take
the GED so this was not a focus of her plan services. Ms.
Young completed JSST and 20 weeks of job search services.
Ms. Young's effort was excellent, she was extremely limited
in her work opportunities due to her education and
restrictions. Case closure was recommended for completion
of services without finding employment.
{¶ 14} 9. On January 3, 2013, relator filed an application for PTD compensation
on a form provided by the commission.
{¶ 15} 10. The PTD application form asks the applicant for information
regarding her education. On the form, relator indicated that the eighth grade was the
highest grade of school completed and this occurred in 1969. The form asks the
No. 14AP-3 7
applicant whether she has received "a certificate for passing the General Educational
Development test (GED)." In response, relator marked the "no" box
{¶ 16} The form also asks the applicant: "Have you gone to trade or vocational
school or had any type of special training?" In response, relator marked the "no" box.
{¶ 17} The form also posed three questions to the applicant: (1) "Can you read?"
(2) "Can you write?" and (3) "Can you do basic math?" Given the choice of "yes," "no"
and "not well," relator selected the "not well" response to all three queries.
{¶ 18} 11. On March 26, 2013, at the commission's request, relator was examined
by clinical psychologist Norman L. Berg, Ph.D. In his eight-page narrative report, Dr.
Berg opined:
DIAGNOSIS:
Axis I. Major Depressive Disorder 296.20
Axis II. No diagnosis V71.09
Axis III. Deferred to medical exam
Axis IV. Ongoing physical health problems with pain;
Depression
Severity: 3 - moderately severe
Axis V. GAF: 56
OPINION:
These are my responses in regard to the specific questions
posed by the Industrial Commission. In my opinion,
claimant has reached maximum medical improvement in
regard to her allowed condition of "Major Depressive
Disorder." This is based on the fact that claimant sustained
her industrial injuries over 4-1/2 years ago, she continues to
receive mental health treatment (counseling and med-
ication), she has been in in counseling for 4 years and has
been taking psychiatric medication for over 2 years, she
continues to complain of physical pain and physical
limitations due to her industrial injuries, a sense of loss of
independence, and continuing depression. Based on AMA
Guides, 2nd and 5th Editions, and with reference to the
Industrial Commission Medical Examination Manual, I rate
No. 14AP-3 8
claimant as having 35% impairment arising from the allowed
psychological condition of "Major Depressive Disorder."
In regard to activities of daily living, claimant is rated as
having Class 3, moderate impairment, in that her depression
reduces her motivation to engage in routine activities,
although claimant indicated that her physical problems also
significantly interfere with her doing chores such as cooking,
cleaning, and laundry.
In regard to social functioning, claimant is rated as having
Class 3, moderate impairment, in that her depression
reduces her interest and desire to be around others. She does
have occasional contact with family members.
In regard to concentration, persistence, and pace for task
completion, claimant is rated as having Class 3, moderate
impairment. Her depression appears to interfere with short
term memory functions and, correspondingly, at times with
concentration and being persistent. During the present
evaluation claimant was fairly well able to concentrate but
did have some difficulty with memory.
In regard to claimant's adaption to the work setting, claimant
is rated as having Class 3, moderate impairment. Her
depression reduces her stress/frustration tolerance.
(Emphasis sic.)
{¶ 19} 12. Also on March 26, 2013, Dr. Berg completed a form captioned
"Occupational Activity Assessment, Mental & Behavioral Examination." On the form, Dr.
Berg indicated by his mark that relator is capable of work with limitations. In his own
hand, Dr. Berg wrote the following limitations:
Claimant would have moderate limitations in her ability to
understand, remember, and follow verbal directions.
Claimant would have moderate limitations in her ability to
maintain attention and concentration in doing work related
tasks. She would have moderate limitations in being
persistent.
Claimant would have moderate limitations in her ability to
respond appropriately to others in a work setting. Claimant
would have moderate limitations in coping with work stress.
No. 14AP-3 9
Claimant would function best in a relatively low stress
setting.
{¶ 20} 13. On April 5, 2013, at the commission's request, relator was examined by
Eugene Lin, M.D., who is board-certified in physical medicine and rehabilitation. In his
eight-page narrative report, Dr. Lin opined:
Review of the medical record showed objective findings
consistent with a re-tear of the rotator cuff. There are also
multiple findings in the medical records that the claimant's
subjective complaints are out of proportion with objective
findings. Despite the evidence of symptoms magnification,
there have been recommendations that the claimant would
be able to work in a sedentary basis. After review of the
medical records, performing physical examination on the
claimant and evaluating the enclosed reports with emphasis
on imaging studies, the claimant would be able to work in a
sedentary demand category based on the claimant's allowed
condition. There would be the further restriction of no
overhead work with the right upper extremity due to the
objective evidence of a re-tear of the rotator cuff. Sedentary
work would mean exerting up to 10 pounds of force
occasionally and a negligible amount of force frequently.
{¶ 21} 14. On a Physical Strength Rating form, Dr. Lin indicated by his mark that
relator is capable of "sedentary work." Under "[f]urther limitations, if indicated," Dr. Lin
wrote: "[N]o overhead work."
{¶ 22} 15. Following a July 10, 2013 hearing, a staff hearing officer ("SHO")
issued an order denying the PTD application. The SHO's order explains:
The Staff Hearing Officer finds that the Injured Worker's
condition has become permanent and that she is unable to
return to her former position of employment as a nursing
assistant due to the allowed conditions in the claim.
Dr. Lin, physician [sic] medicine and rehabilitation
specialist, examined the Injured Worker at the request of the
Industrial Commission. Dr. Lin opined that the Injured
Worker's orthopedic conditions have reached maximum
medical improvement. Dr. Lin opined that the Injured
Worker would be able to work in a sedentary demand
category based on the allowed conditions in the claim. Dr.
Lin opined that the Injured Worker should do no overhead
work with the right upper extremity due to the objective
No. 14AP-3 10
evidence of a re-tear of the rotator cuff. Dr. Lin opined that
the Injured Worker would be capable of engaging in
sedentary work. Dr. Lin opined that sedentary work means
exerting up to ten pounds of force occasionally and/or a
negligible amount of force frequently. Dr. Lin opined that
sedentary jobs involve sitting most of the time but may
involve walking or standing for brief periods of time.
Dr. Berg, clinical psychologist examined the Injured Worker
at the request of the Industrial Commission concerning the
allowance of the condition of major depressive disorder in
claim number 08-852242. Dr. Berg opined that the Injured
Worker is capable of work with the following limitations
based on the impairments arising from the allowed condition
of major depressive disorder.
Dr. Berg opined that the Injured Worker would have
moderate limitations in her ability to understand, remember
and follow verbal directions. Dr. Berg opined that the
Injured Worker would have moderate limitations in her
ability to maintain attention and concentration in doing
work related tasks. Dr. Berg opined that the Injured Worker
would have moderate limitations in being persistent. Dr.
Berg opined that the Injured Worker would have moderate
limitations in her ability to respond appropriately to others
in a work setting. Dr. Berg opined that the Injured Worker
would have moderate limitations in coping with job stress.
Dr. Berg opined that the Injured Worker would function best
in a relatively low stress setting.
The Staff Hearing Officer finds that the capabilities listed by
Dr. Lin and Dr. Berg are the capabilities the Injured Worker
has as a result of the recognized conditions in the industrial
claims. The Staff Hearing Officer finds that the Injured
Worker is 58 years of age and has an 8th grade education.
The Staff Hearing Officer notes from the Injured Worker's
permanent total application that she is able to read, write
and do basic math, but not well. The Staff Hearing Officer
finds that the Injured Worker has a varied work history;
performing jobs as a nurse's assistant, food service worker
and packer. The Staff Hearing Officer finds that the Injured
Worker as a nursing assistant, was responsible for caring for
patients including feeding, bathing and dressing them. The
Staff Hearing Officer finds that as a food service worker, the
Injured Worker was responsible for preparing food, serving
food and cleaning responsibilities. The Staff Hearing Officer
No. 14AP-3 11
finds that as a packer the Injured Worker was responsible for
putting items in boxes. The Staff Hearing Officer finds that
while working at The Donut Shop the Injured Worker
performed duties of cooking, serving and also working as a
dishwasher. The Staff Hearing Officer finds that the Injured
Worker as a packer would pack plastic bottles into
containers. The Staff Hearing Officer finds that the Injured
Worker has five industrial claims. The Staff Hearing Officer
finds from the file that the Injured Worker is very hard
working and has returned to work following her industrial
accidents. The Staff Hearing Officer finds from the Injured
Worker's Application for Permanent Total Disability that she
last worked in 2008. The Staff Hearing Officer notes that the
Injured Worker's last industrial claim has an injury date of
08/26/2008.
The Staff Hearing Officer finds that the Injured Worker has
completed 30 weeks of job search services but was unable to
secure alternative employment as a result of the vocational
rehabilitation services. The Staff Hearing Officer finds that
the vocational rehabilitation closure report of 05/30/2012
indicated that Ms. Young demonstrated from a work
adjustment program that she could tolerate a different work
environment. The vocational rehabilitation closure report
indicated that Ms. Young's effort was excellent but she was
limited in her work opportunities due to her 8th grade
education and restrictions to sedentary employment. The
closure report indicated that the case closure was
recommended because of completion of services without
finding employment. The vocational rehabilitation closure
report indicates with the Injured Worker's participation that
she has the aptitude to learn and the ability to be re-trained
but the employment prospects currently existing in the
economy did not result in a placement of a job for the
Injured Worker. The Staff Hearing Officer finds that the
Ohio Valley Goodwill Industries Work Adjustment Services
Discharge Summary dated 01/18/2012 indicated that the
Injured Worker has various strengths when it comes to
employment. The discharge summary indicated that the
Injured Worker has a valid drivers license and owns a
vehicle, exhibited awareness of employer's expectations
regarding skills, capable of following verbal instructions and
demonstration, capable of learning new procedures/work
tasks, demonstrated ability to focus on work tasks and is
courteous and polite. The Staff Hearing Officer finds that
No. 14AP-3 12
these vocational strengths are beneficial to an Injured
Worker in securing future employment.
The Staff Hearing Officer finds that the Injured Worker's 8th
grade education without a GED certificate is a negative
vocational factor. The Staff Hearing Officer finds that the
Injured Worker's education would negatively impact her in
securing future employment. However the Staff Hearing
Officer finds that the Injured Worker's age of 58, her past
work experience as a nursing assistant, food service worker
and packer shows that the Injured Worker is capable of
learning new procedures and new tasks in different work
environments. The Staff Hearing Officer notes that the
Injured Worker's employment as a state tested nursing
assistant indicates that the Injured Worker had the
capability to interact with the public and demonstrate the
ability to read/write/do basic math in performing these
tasks. The Staff Hearing Officer finds that an Injured
Worker's efforts in education re-training will be scrutinized
by the Industrial Commission. The Staff Hearing Officer
finds that the Injured Worker is 58 years of age with an 8th
grade education and has the capability to pursue a GED cert-
ificate and further training to enhance her re-employment
efforts. The Staff Hearing Officer finds that an Injured
Worker is expected to engage in return to work efforts and
efforts to improve re-employment potential. This is because
permanent total compensation is compensation of the last
resort to be awarded only when an Injured Worker's efforts
at re-employment have failed. The [sic] State ex rel. Wilson
v. Industrial Commission (1997) 80 Ohio St.3d 250, 253.
Based on a careful consideration of the above, as well as the
evidence in file and at the hearing, the Staff Hearing Officer
concludes that the Injured Worker is capable of performing
sustained remunerative employment consistent with
sedentary work. Therefore the Injured Worker is not
permanently totally disabled.
Based on this analysis, the Staff Hearing Officer concludes
that the Injured Worker retains the residual physical abilities
and psychological capability to perform entry-level sedentary
employment when combined with the Injured Worker's
vocational assets as noted above. The Staff Hearing Officer
concludes that the Injured Worker is able to engage in
sustained remunerative employment. Accordingly, the Staff
Hearing Officer finds that the Injured Worker is not
No. 14AP-3 13
permanently and totally disabled and the Permanent Total
Disability Application filed 01/03/2013 is denied.
{¶ 23} 16. On January 2, 2014, relator, Wanda Young, filed this mandamus action.
Conclusions of Law:
{¶ 24} Relator presents three issues: (1) whether the commission abused its
discretion in failing to identify skills that are transferrable to the sedentary employment
that relator can perform; (2) whether the commission abused its discretion in
determining that relator is capable of learning new procedures and work tasks; and (3)
whether the commission abused its discretion in determining that relator has the capacity
to successfully pursue a GED certificate.
{¶ 25} The magistrate finds: (1) the commission did not abuse its discretion in
failing to identify skills that are transferrable to the sedentary employment that relator
can perform; (2) the commission did not abuse its discretion in determining that relator
is capable of learning new procedures and work tasks; and (3) the commission did not
abuse its discretion in determining that relator has the capacity to successfully pursue a
GED certificate.
{¶ 26} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
{¶ 27} Preliminarily, it can be noted that the SHO, in his order of July 10, 2013,
relied upon the reports of Drs. Lin and Berg in determining residual functional capacity.
Ohio Adm.Code 4121-3-34(B)(4). Dr. Lin found that relator is medically able to perform
sedentary work with the further restriction of no overhead work with the right upper
extremity. Moreover, Dr. Lin specifically noted that relator is capable of exerting up to
ten pounds of force occasionally and a negligible amount of force frequently.
{¶ 28} Dr. Berg found that relator has "moderate impairment" in her ability to
understand, remember, and follow verbal directions. She has "moderate impairment" to
maintain her attention and concentration in doing work-related tasks. She has
"moderate limitations" in being persistent. She has "moderate limitations" in her ability
to respond appropriately to others in a work setting. She has "moderate limitations" in
coping with work stress. Relator would function best in a relatively low-stress setting.
No. 14AP-3 14
{¶ 29} Here, relator does not challenge the commission's reliance upon the
reports of Drs. Lin and Berg. Relator does not challenge the commission's
determination of residual functional capacity.
{¶ 30} However, relator does challenge the commission's consideration and
analysis of the non-medical factors, raising the three issues noted above.
First Issue
{¶ 31} Ohio Adm.Code 4121-3-34 sets forth the commission's rules applicable to its
adjudication of PTD applications.
{¶ 32} Ohio Adm.Code 4121-3-34(B) sets forth definitions.
{¶ 33} Ohio Adm.Code 4121-3-34(B)(3) is captioned "Vocational factors."
Thereunder, Ohio Adm.Code 4121-3-34(B)(3)(c) is captioned "Work experience."
Thereunder, the Ohio Administrative Code provides:
(iv) "Transferability of skills" are skills that can be used in
other work activities. Transferability will depend upon the
similarity of occupational work activities that have been
performed by the injured worker. Skills which an individual
has obtained through working at past relevant work may
qualify individuals for some other type of employment.
(v) "Previous work experience" is to include the injured
worker's usual occupation, other past occupations, and the
skills and abilities acquired through past employment which
demonstrate the type of work the injured worker may be able
to perform. Evidence may show that an injured worker has
the training or past work experience which enables the
injured worker to engage in sustained remunerative
employment in another occupation. The relevance and
transferability of previous work skills are to be addressed by
the adjudicator.
{¶ 34} In State ex rel. Ewart v. Indus. Comm., 76 Ohio St.3d 139 (1996), the
Supreme Court of Ohio upheld the commission's order denying PTD compensation. As
here, the claimant's challenge to the commission's order focused upon the commission's
analysis of the non-medical factors. The Supreme Court states:
Claimant worked for Refiners Transport and Terminal as a
trucker for twenty-two years. Claimant's long tenure can be
viewed negatively because it prevented the acquisition of a
No. 14AP-3 15
broader range of skills that more varied employment might
have provided. It also, however, suggests a stable, loyal and
dependable employee worth making an investment in. This
is an asset and is an interpretation as valid as the first.
Claimant's lack of transferable skills also does not mandate a
permanent total disability compensation award. A
permanent total disability compensation assessment
examines both claimant's current and future, i.e., potentially
developable, abilities. An absence of transferable skills is
germane to this inquiry. However, as the appellate court
referee observed, "the nonexistence of transferable skills
from relator's truck driving experience would not be of
critical importance when the issue becomes whether the
claimant can be retrained for another occupation."
Id. at 142.
{¶ 35} Here, it can be observed that the SHO's order of July 10, 2013 does not
identify skills relator may have obtained during her work history that may be
transferrable to another occupation that relator is medically able to perform. Presumably,
the SHO did not find the transferability of skills as that term is found at Ohio Adm.Code
4121-3-34(B).
{¶ 36} Clearly, neither the commission's rules applicable to the adjudication of
PTD applications nor case law require the commission or its hearing officers to find
transferability of skills or to address transferability where transferable skills may be
lacking.
{¶ 37} Relator here points out that the SHO's order of July 10, 2013 accepts the
so-called "vocational strengths" set forth in the Goodwill summary and finds them
beneficial to relator in securing future employment. Relator then endeavors to point out
that the "vocational strengths" that were found to be beneficial to securing future
employment are not transferrable skills within the meaning of Ohio Adm.Code 4121-3-
34(B)(3)(c)(iv). According to relator, the "vocational strengths" are "traits that involve
an innate aptitude or ability of a worker." (Relator's brief, 11.) However, even if relator
is correct in her assertion that the vocational strengths are not transferrable skills, the
absence of transferrable skills does not mandate a PTD award, and the commission has
not abused its discretion in failing to identify transferrable work skills. Ewart.
No. 14AP-3 16
Second Issue
{¶ 38} As earlier noted, the second issue is whether the commission abused its
discretion in determining that relator is capable of learning new procedures and work
tasks.
{¶ 39} On the second issue, relator points out that she has an 8th grade education
and no GED. She enrolled in a bureau vocational rehabilitation program that resulted
in a closure report indicating that she was not a candidate to take the GED test.
{¶ 40} Relator also points to the report of Dr. Berg who opined that relator has
"moderate limitations" in various areas. Relator then invites this court to conclude that
she is incapable of learning new work procedures and tasks. In effect, relator is asking
this court to reweigh the evidence, something that this court shall not do in a mandamus
action.
{¶ 41} Primarily, the SHO determined that relator is capable of learning new
procedures and work tasks by analyzing the work history, which shows that relator is a
state-tested nursing assistant and has held jobs as a food service worker and packer.
The SHO found that relator has demonstrated through her work history that she has the
ability to read, write, and do basic math.
{¶ 42} In short, the commission did not abuse its discretion in determining that
relator is capable of learning new procedures and work tasks.
Third Issue
{¶ 43} The third issue is whether the commission abused its discretion in
determining that relator has the capacity to successfully pursue a GED certificate.
{¶ 44} The commission may reject the conclusion of a rehabilitation report and
draw its own conclusion from the same non-medical information. Ewart at 141.
{¶ 45} Moreover, while the commission may credit offered vocational evidence,
expert opinion is not critical or even necessary because the commission is the expert on
this issue. State ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266 (1997).
{¶ 46} In the Goodwill summary dated January 18, 2012, which was approved by
two Goodwill evaluators, it is stated:
Without a GED, Wanda's other vocational interest, working
with computers, would be unlikely. At this time, her
No. 14AP-3 17
academic skills, concentration and attention to detail would
indicate that she would struggle with obtaining her GED and
computer training.
The bureau's closure report of May 30, 2012 states:
Ms. Young also had a GED assessment and studied for the
test on her own. Her academic levels were so low that it was
impossible to assess how long it would take her to be able to
reach a level when she could take the GED so this was not a
focus of her plan services.
{¶ 47} Relator suggests here that the SHO was bound by the Goodwill summary
and the bureau's closure report in determining relator's capacity for successful pursuit of
a GED. This suggestion is incorrect. The SHO was not bound by either the Goodwill
summary or the bureau's closure report.
{¶ 48} Rather, the SHO pursued his own analysis as he is authorized to do as the
expert on the non-medical issues. The SHO reasoned:
The Staff Hearing Officer finds that the Injured Worker's 8th
grade education without a GED certificate is a negative
vocational factor. The Staff Hearing Officer finds that the
Injured Worker's education would negatively impact her in
securing future employment. However the Staff Hearing
Officer finds that the Injured Worker's age of 58, her past
work experience as a nursing assistant, food service worker
and packer shows that the Injured Worker is capable of
learning new procedures and new tasks in different work
environments. The Staff Hearing Officer notes that the
Injured Worker's employment as a state tested nursing
assistant indicates that the Injured Worker had the
capability to interact with the public and demonstrate the
ability to read/write/do basic math in performing these
tasks. The Staff Hearing Officer finds that an Injured
Worker's efforts in education re-training will be scrutinized
by the Industrial Commission. The Staff Hearing Officer
finds that the Injured Worker is 58 years of age with an 8th
grade education and has the capability to pursue a GED
certificate and further training to enhance her re-
employment efforts.
{¶ 49} Thus, in rejecting the conclusions in the Goodwill summary and the
bureau's closure report regarding relator's ability to pursue a GED certificate, the SHO
No. 14AP-3 18
alternatively analyzed relator's work history which includes work as a state-tested nursing
assistant. The SHO noted that being a state-tested nursing assistant would require an
ability to read, write and do basic math. The SHO's analysis which is extensively set forth
in his order is as valid as any reliance upon the Goodwill summary and the bureau closure
report. Again, as the expert on this issue, the SHO is the ultimate evaluator—not the
rehabilitation counselors.
{¶ 50} 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).