State ex rel. Manpower of Dayton, Inc. v. Indus. Comm. (Slip Opinion) , 147 Ohio St. 3d 360 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Manpower of Dayton, Inc. v. Indus. Comm., Slip Opinion No. 2016-Ohio-7741.]
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2016-OHIO-7741
THE STATE EX REL. MANPOWER OF DAYTON, INC., APPELLANT, v. INDUSTRIAL
COMMISSION OF OHIO ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Manpower of Dayton, Inc. v. Indus. Comm.,
Slip Opinion No. 2016-Ohio-7741.]
Workers’ compensation—Permanent total disability—Commission’s decision
supported by some evidence in record, specifically states evidence relied
upon, and explains reasoning—Court of appeals’ judgment denying writ of
mandamus affirmed.
(No. 2015-1347—Submitted August 30, 2016—Decided November 16, 2016.)
APPEAL from the Court of Appeals for Franklin County,
No. 14AP-376, 2015-Ohio-2650.
_______________________
Per Curiam.
{¶ 1} Appellant, Manpower of Dayton, Inc. (“Manpower”), appeals the
judgment of the Tenth District Court of Appeals denying its request for a writ of
SUPREME COURT OF OHIO
mandamus that would compel appellee Industrial Commission to vacate its award
of permanent-total-disability compensation to appellee Inge Fox.
{¶ 2} The court of appeals concluded that the reports of Kenneth J. Manges,
Ph.D., James T. Lutz, M.D., and Thomas W. Heitkemper, Ph.D., constituted some
evidence supporting the commission’s order awarding compensation and that the
order complied with the requirements of State ex rel. Noll v. Indus. Comm., 57 Ohio
St.3d 203, 567 N.E.2d 245 (1991), syllabus, to “specifically state what evidence
has been relied upon, and briefly explain the reasoning for [the commission’s]
decision.”
{¶ 3} For the reasons that follow, we affirm the judgment of the court of
appeals.
{¶ 4} In 2006, Fox injured her left arm and hand in the course and scope of
her employment with Manpower. Her workers’ compensation claim was allowed
for various medical and psychological conditions. In 2013, Fox applied for
permanent-total-disability compensation. In support of her application, she
submitted two reports from Dr. Manges, a psychologist and a vocational expert,
both dated July 10, 2012.
{¶ 5} Drs. Lutz and Heitkemper examined Fox on behalf of the
commission. Both determined that Fox had reached maximum medical
improvement and was incapable of engaging in “sustained remunerative
employment.”
{¶ 6} The commission granted Fox’s application based on the reports of
Drs. Manges, Lutz, and Heitkemper. The order stated that because Fox’s inability
to work was based solely on the medical impairment caused by her allowed
conditions, it was not necessary to discuss her nonmedical disability factors, such
as age, education, skills, and work record, see State ex rel. Stephenson v. Indus.
Comm., 31 Ohio St. 3d 167, 172-173, 509 N.E.2d 946 (1987).
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January Term, 2016
{¶ 7} Manpower filed a complaint in mandamus in the Tenth District Court
of Appeals, claiming that the commission abused its discretion by entering an order
not supported by the evidence in the record. The court of appeals concluded that
the commission did not abuse its discretion and denied Manpower’s request for a
writ.
{¶ 8} This matter is before this court on Manpower’s appeal as of right.
{¶ 9} To be entitled to the extraordinary remedy of mandamus, Manpower
must establish a clear legal right to the relief requested, a clear legal duty on the
part of the commission to provide the relief, and the lack of an adequate remedy in
the ordinary course of the law. State ex rel. Gen. Motors Corp. v. Indus. Comm.,
117 Ohio St. 3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9.
{¶ 10} Manpower argues that the court of appeals erred in its analysis of the
sufficiency and reliability of the evidence that the commission relied upon. In
particular, Manpower contends that the impairment report of Dr. Manges focused
on nonmedical factors to support his opinion that Fox was disabled. Manpower
also argues that Dr. Lutz’s report was equivocal regarding Fox’s physical
capabilities and that Dr. Heitkemper’s report did not constitute evidence that
supported the commission’s decision. Finally, Manpower contends that the
commission’s order failed to specifically state the evidence relied upon and to
briefly explain its reasoning, in violation of Noll, 57 Ohio St. 3d 203, 567 N.E.2d
245.
{¶ 11} This court must determine whether there is some evidence in the
record to support the commission’s decision. State ex rel. Avalon Precision Casting
Co. v. Indus. Comm., 109 Ohio St. 3d 237, 2006-Ohio-2287, 846 N.E.2d 1245, ¶ 9.
Questions regarding the weight and credibility of the evidence are within the
commission’s discretion. State ex rel. Teece v. Indus. Comm., 68 Ohio St. 2d 165,
169, 429 N.E.2d 433 (1981). It is not the role of a reviewing court to assess the
credibility of the evidence. State ex rel. Consolidation Coal Co. v. Indus. Comm.,
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SUPREME COURT OF OHIO
78 Ohio St. 3d 176, 177, 677 N.E.2d 338 (1997). So long as the commission’s order
is supported by some evidence, there is no abuse of discretion and a court must
uphold the decision. State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St. 3d 373,
376, 658 N.E.2d 1055 (1996).
{¶ 12} We agree with the court of appeals that the evidence in the record
supported the commission’s decision to award permanent-total-disability
compensation based solely on Fox’s allowed conditions. The court of appeals
correctly determined that Dr. Manges rendered an opinion, without consideration
of nonmedical factors, that Fox was totally disabled as a direct result of her
impairments from her industrial injury based on her psychological conditions. See
2015-Ohio-2650, ¶ 52-53.
{¶ 13} We also agree with the appellate court’s determination that Dr.
Lutz’s description of Fox’s activities of daily living did not contradict his
conclusion that she was unable to work. See id. at ¶ 67-71. Dr. Lutz acknowledged
that Fox was capable of performing some light housecleaning, cooking, and
laundry, but he also noted that she had undergone three surgical procedures and
described constant pain with frequent episodes of severe flareups that rendered her
functionless.
{¶ 14} Manpower’s argument challenging the evidentiary value of Dr.
Heitkemper’s report also lacks merit. Dr. Heitkemper’s use of the word “medical”
when rendering his opinion within a reasonable degree of “medical/psychological
probability” did not invalidate his opinion. Ohio Adm.Code 4121-3-34(C)(1) states
that a psychologist may provide “medical” evidence in support of an application
for permanent-total-disability compensation.
{¶ 15} Finally, the commission’s order granting permanent-total-disability
compensation specifically set forth the medical reports and evidence relied upon
and explained the reasoning for the decision in compliance with Noll, 57 Ohio St. 3d
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 January Term, 2016
203, 567 N.E.2d 245, at syllabus. Manpower failed to demonstrate that it was
entitled to extraordinary relief in mandamus.
{¶ 16} We affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Coolidge Wall Co., L.P.A., David C. Korte, Michelle D. Bach, and Joshua
R. Lounsbury, for appellant.
Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant
Attorney General, for appellee Industrial Commission.
Hochman & Plunkett Co., L.P.A., and Gary D. Plunkett, for appellee Inge
Fox.
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