State ex rel. Keller v. Paragon Salons, Inc.

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 10th District Court of Appeals » 2011 » State ex rel. Keller v. Paragon Salons, Inc.

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-2742

Case Date: 06/07/2011

Plaintiff: State ex rel. Keller

Defendant: Paragon Salons, Inc.

Preview:[Cite as State ex rel. Keller v. Paragon Salons, Inc., 2011-Ohio-2742.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Kathleen Keller,                                                             :
Relator,                                                                                   :
v.                                                                                         :   No. 10AP-455
Paragon Salons, Inc. and                                                                   :   (REGULAR CALENDAR)
The Industrial Commission of Ohio,
                                                                                           :
Respondents.
                                                                                           :
D    E    C    I    S    I    O    N
Rendered on June 7, 2011
Mark R. Naegel, for relator.
Michael DeWine, Attorney General, and Derrick L. Knapp,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
FRENCH, J.
{¶1}   Relator, Kathleen Keller, filed an original action asking this court to issue a
writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"),
to vacate its order that denied relator permanent total disability ("PTD") compensation,
and to enter an order granting that compensation.

No. 10AP-455                                                                                 2
{¶2}   This court referred this matter to a magistrate pursuant to Civ.R.  53(C)
and Loc.R.  12(M) of the Tenth District Court of Appeals.    The magistrate issued a
decision, which includes findings of fact and conclusions of law and is appended to this
decision, recommending that this court deny the request writ.
{¶3}   No objections to the magistrate's findings of fact have been submitted, and
we adopt those findings as our own.   In brief, in 1998, relator was injured in a motor
vehicle accident while employed as a receptionist for a hair salon, and claims were
allowed for those injuries.   In 2008, she applied for PTD compensation, contending that
the injuries had rendered her permanently and totally disabled.   The commission denied
her application.   On mandamus, the magistrate concluded that the commission had not
abused its discretion by doing so.
{¶4}   Relator  has  filed  the  following  objections  to  the  magistrate's  decision:
(1) the magistrate's decision did not address the issue of the commission's compliance
with  State  ex  rel.  Noll  v.  Indus.  Comm.                                               (1991),   57  Ohio  St.3d  203;  and  (2)  the
magistrate  misunderstood  the  pain  issue  as  a  medical  issue,  rather  than  one  of
vocational adjustment.  We address each issue, in turn.
{¶5}   First,  we  agree  with  relator  that  the  magistrate  did  not  discuss  her
contentions within the context of Noll.   Rather, the magistrate addressed the substance
of relator's contention, i.e., that the commission abused its discretion by denying her
claim.   We agree with the magistrate's analysis and his conclusion that the commission
had  some  evidence  on  which  to  determine  that  relator  was  capable  of  sustained
remunerative employment.  We decline relator's invitation to reweigh that evidence.

No. 10AP-455                                                                                        3
{¶6}   We disagree, too, with relator's contention that the commission's order
does  not  satisfy  Noll.    The  order  summarizes  and  relies  on  the  report  of  Martin
Fritzhand, M.D., which concluded that relator is capable of medium work.   The order
also analyzes, in detail, relator's vocational factors.   Of primary importance is relator's
complete lack of rehabilitation efforts.   While relator disagrees with the commission's
analysis, the analysis itself satisfies Noll.   Therefore, we overrule relator's first objection.
{¶7}   In   her   second   objection,   relator   contends   that   the   magistrate
misunderstood the pain issue.    We disagree.    In her brief, relator argued that the
commission's order failed to meet Noll by not discussing the impact of relator's pain on
her ability to work and participate in rehabilitation.   The magistrate concluded, however,
that the commission need not always address pain as a factor; rather, the medical
experts generally address pain within their medical reports.
{¶8}   Here, while the commission did not specifically address relator's pain in its
order,  the  commission  did  consider  the  medical  report  of  Dr.  Fritzhand  and  the
vocational  report  of William T.  Cody,  M.S.,  both  of  which  discussed  the  impact of
relator's  pain.    The  commission's  order  did  not  violate  Noll,  and  relator  has  not
demonstrated an abuse of discretion.   Therefore, we overrule relator's second objection.
{¶9}   Having  overruled  relator's  objections,  and  based  on  our  independent
review,  we  adopt  the  magistrate's  decision,  including  the  findings  of  fact  and
conclusions  of  law  contained  in  it,  as  our  own.    We  deny  the  requested  writ  of
mandamus.
Objections overruled;
writ of mandamus denied.
BROWN and TYACK, JJ., concur.

No. 10AP-455   4

No. 10AP-455                                                                                                               5
                                                                                         IN THE COURT OF APPEALS OF OHIO
                                                                                         TENTH APPELLATE DISTRICT
State ex rel. Kathleen Keller,                                                           :
Relator,                                                                                 :
v.                                                                                       :                                 No. 10AP-455
Paragon Salons, Inc. and                                                                 :                                 (REGULAR CALENDAR)
The Industrial Commission of Ohio,
                                                                                         :
Respondents.
                                                                                         :
M A G I S T R A T E ' S      D E C I S I O N
Rendered on February 28, 2011
Mark R. Naegel, for relator.
Michael DeWine, Attorney General, and Derrick Knapp, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶10}  In  this  original  action,  relator,  Kathleen  Keller,  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 said compensation.

No. 10AP-455                                                                               6
Findings of Fact:
{¶11}                                                                                      1.   On September 30, 1998, relator was injured in a motor vehicle accident
while employed as a receptionist for a hair salon operated by Paragon Salons, Inc., a
state-fund employer.   The industrial claim (No. 98-549643) is allowed for:
Left  supracondylar  fracture  femur-closed;  fracture  right
calcaneus-closed;  fracture  left  upper  end  tibia-closed;  fat
embolism; gluteus medius fibrosis; post-traumatic subralar
right  calcaneocuboid  osteoarthritis  of  the  right  ankle;
localized primary osteoarthritis left lower/leg.
{¶12}                                                                                      2.   On August 7, 2008, at relator's request, she was examined by Bruce F.
Siegel, D.O., who then issued a five-page narrative report, concluding:
* * * [I]t is my medical opinion that solely due to this injury
date, she is unable to sustain remunerative employment and
has been rendered permanently and totally disabled based
solely on her medical findings.
{¶13}                                                                                      3.   On   October 30,                                                         2008,   relator   filed   an   application   for   PTD
compensation.   In support, relator submitted the August 7, 2008 report of Dr. Siegel.
{¶14}                                                                                      4.   On  December 18,  2008,  at  the  commission's  request,  relator  was
examined by Martin Fritzhand, M.D.   Dr. Fritzhand examined for all allowed conditions
of the industrial claim.   Thereafter, Dr. Fritzhand issued a four-page narrative report
stating:
CURRENT  SYMPTOMS:  At  present,  the  patient  has
intermittent                                                                               ("some   of   the   time")   dull   pain   primarily
surrounding the left knee "here in the  (distal) femur where
the break was and below the (left) knee. When the weather
changes I can predict it." In addition, she continues to have
intermittent  ("some of the time") dull pain localized to the
right.  Prolonged  ambulation,  standing  or  weight-bearing
exacerbates the pain. The patient notes weakness involving
the left leg as well as numbness localized to the left knee.
The patient notes occasional instability, but has never fallen.

No. 10AP-455                                                                7
The patient is currently being followed by Dr. Goldfarb and
takes "pain pills." The patient does not use a heating pad.
DISCUSSION: In summary, this is a middle-aged woman
who sustained injuries to the left knee and right foot during a
motor  vehicle  accident  in  September 1998.  She  required
multiple procedures at the time of her initial hospitalization,
and   has   subsequently   required   additional   operations.
Unfortunately, musculoskeletal distress has persisted since
the  accident,  and  she  has  remained  refractory  to  both
surgery  and  aggressive  medical  care  over the  years.  On
physical   examination,   the   patient   ambulates   with   a
somewhat stiff nonlimping gait. Range of motion of the right
ankle  is  diminished.  Synovial  thickening  is  also  present.
There is some sensory loss involving the left leg. The patient
was a receptionist, but has been unable to perform work
duties  due  to  ongoing  pain  and  discomfort.  The  injured
worker  reached  maximum  medical  improvement  on  all
allowed conditions by July 2008. Her subjective symptoms
are certainly corroborated by the objective findings described
above. The AMA  Guides  to the Evaluation of  Permanent
Impairment Fifth Edition has been consulted in arriving at the
cited   level   of   impairment.   Table                                    17-12   indicates   an
impairment to the whole body of  2.5%  +  1%. Table  17-33
indicates  an  impairment  of  2%  to  the  whole  body for an
undisplaced supracondylar fracture as well as an impairment
of 2% for a plateau fracture, undisplaced. I used Table 16-10
for an impairment due to sensory loss of 3/5 (50%).   Figure
17-8 indicates an impairment to the common peroneal nerve.
Table  17-37 indicates an impairment to the whole body of
50% x 2% = 1%. I also used the guidelines for estimating
impairment of pain in Chapter  18 with use of Figure  18-1
indicating an impairment of  3%. There were no sequelae
secondary to the allowed condition "fat embolism," and no
award was given. Thus, by using the Combined Value Chart,
it is my medical opinion that the patient has sustained a
permanent partial impairment to the whole body of 11%. * * *
{¶15}                                                                       5.   On  a  physical  strength  rating  form  dated  December 18,  2008,  Dr.
Fritzhand indicated by his mark that relator is capable of "medium work."

No. 10AP-455                                                                                        8
{¶16}                                                                                               6.   By letter dated January 19, 2009, relator's counsel wrote to the hearing
administrator  of  the  Cincinnati  Service  Office  of  the  Ohio  Bureau  of  Workers'
Compensation                                                                                        ("bureau").     In  the  letter,  relator  requested  an  additional  medical
examination "for the reason that the report of Dr. Fritzhand dated December 18, 2008 is
internally  inconsistent  and  is  significantly  disparate  from  existing  information  in  the
claim."
{¶17}                                                                                               7.   Apparently,  the  bureau's  hearing  examiner  did  not  grant  relator's
request for an additional medical examination.
{¶18}                                                                                               8.   On February 26, 2009, at relator's request, vocational expert William T.
Cody  interviewed  relator  by  telephone  and  conducted  a  vocational  assessment.
Thereafter, Cody issued a four-page narrative report stating:
Vocational Potential Analysis
Dr. Fritzhand (2008), in his specialist report, states that Ms.
Keller  can  perform  medium  level  work  in  spite  of  the
limitations  stemming  from                                                                         [the]  work  injury.  If  this  is  the
situation,  Ms.  Keller  can  return  to  either  of  her  former
positions of employment. These jobs were performed at the
light level of physical demand. There is no evidence that she
could perform medium level work prior to her work injury so it
seems inappropriate for an evaluating physician to assume
she can perform work at this level after a work injury. Dr.
Fritzhand's opinion that she is capable of medium level work
is  inconsistent  with  his  own  report.  He  says  that  her
"subjective symptoms are certainly corroborated by the
objective finding" (emphasis added). That is, it is believable
when   she   reported  to   him,   "Prolonged   ambulation,
standing   or   weight-bearing   exacerbates   the   pain"
(emphasis  added).  Medium  and  even  light  level  work
requires  that  one be on  their feet for the majority of  the
workday. The narrative of Dr. Fritzhand's report suggest[s]
that one could work at no more than the sedentary level of
physical demand.

No. 10AP-455                                                         9
Dr.  Siegel                                                          (2008),  in  his  letter,  feels  that  the  physical
limitations emanating from her work injury prevent Ms. Keller
from engaging in ongoing work activity of any kind.
Ms. Keller has work experience in positions performed at the
light level of physical demand. She has no experience in or
skills that transfer to work performed at the sedentary level
of physical demand. Therefore, only unskilled and, perhaps,
semiskilled work performed at the sedentary level of physical
demand can be considered for Ms. Keller, according to the
narrative of Dr. Fritzhand's report.
Ms. Keller, at the age of fifty-nine years, would not be able to
adapt to a new kind of work activity. She has a significant
level of pain, restricted unskilled work history, and physical
limitations as reflected in the record reviewed. Under these
circumstances  she  could  not  be  expected  to  adequately
adapt to the new tools, tasks, procedures, and rules involved
in performing a new type of work activity, a type of work that
she has not performed in the past. This holds true even for
unskilled work. The Industrial Commission defines the age of
fifty-nine years as middle age. Being of this age presents
obstacles to ones' ability to adjust to a new kind of work
activity. When a significant level of pain is combined with
physical limitations and a restricted unskilled work history,
they  serve  as  contributing  factors,  along  with  age,  to  an
inability to make vocational adjustments.
Therefore, in the opinion of this vocational expert, Kathleen
Keller  is  permanently  and  totally  occupationally  disabled.
That is, there are no jobs in the local or national economies
that she is able to perform. This conclusion was reached
considering  her  age,  education,  work  history,  and  the
limitations that he has as a result of her allowed injury, claim
number 98-549643. This appears to have been the situation
since she last worked in 2006.
Ms. Keller is not an appropriate candidate for a vocational
rehabilitation  program.  This  is  because  of  her  age,  her
physical limitations, and her restricted work history.
{¶19}                                                                9.   Relator submitted the Cody report to the commission in support of her
PTD application.

No. 10AP-455                                                               10
{¶20}                                                                      10.   Following a March 5,  2009 hearing, a staff hearing officer  ("SHO")
issued an order denying the PTD application.   The SHO's order explains:
Upon the request of the Industrial Commission of Ohio, the
Injured   Worker   was   examined   by   Dr.   Fritzhand   on
12/18/2008  with  regard  to  the  allowed  conditions  in  the
claim.  Dr.  Fritzhand  opined  that  the  allowed  orthopedic
conditions  are  permanent  and  have  reached  maximum
medical  improvement.  Dr.  Fritzhand  also  found  that  the
Injured Worker had an 11% permanent partial impairment to
her  whole  person  as  a  result  of  the  allowed  orthopedic
conditions.  Further,  Dr.  Freeman  opined  that  the  Injured
Worker could engage in medium work activity. Medium work
means  exerting                                                            20  to                                                                       50  pounds  of  force  occasionally,
and/or  10 to  25 pounds of force frequently, and/or greater
than negligible amounts of force up to 10 pounds constantly
to move objects.
It is the finding of the Staff Hearing Officer that the allowed
conditions in this claim are permanent and have reached
maximum medical improvement. The Hearing Officer also
finds that the allowed orthopedic conditions do not prevent
the  Injured  Worker  from  returning  to  the  work  force  and
performing  employment  activities  up  to  and  including
medium work.
The Staff Hearing Officer finds that the Injured Worker is 59
years  old,  has  a                                                        12th  grade  education  and  has  been
employed  as  a  candy  store  sales  clerk,  a  receptionist,  a
department store sales clerk and a factory seamstress.
The Staff Hearing Officer finds that the Injured Worker's age
of 59 years old would not be a barrier to the Injured Worker
returning  to  entry-level  sedentary  employment.  This  age
would not preclude the Injured Worker from adhering to new
rules,  processes  and  procedures  in  a  new  position,
especially positions which the Injured Worker has not been
employed in the past.
The Staff Hearing Officer also finds that the Injured Worker
has a  12th grade education. The Injured Worker has the
ability to read, write and do basic math as noted by Mr. Cody
in his report dated 02/26/2008 [sic] and her ability to read,
write and do basic math would be assets with regard to her
returning to entry-level sedentary employment activity. The

No. 10AP-455                                                                                11
Staff  Hearing  Officer  finds  that  the  Injured  Worker  has
sufficient   intellectual   ability   to   engage   in   entry-level
sedentary employment activity or engage in re-training which
may be necessary to return to the work force.
The  Injured Worker's  past  employment  as  a  candy  store
sales clerk, department store sales clerk, receptionist and
seamstress  would  be  positive  factors  with  regard  to  the
Injured    Worker    returning    to    entry-level    sedentary
employment  or  engaging  in  re-training  which  may  be
necessary to return to the work force. The Injured Worker's
past employment involved varied positions which show her
adaptability  to  performing  different  types  of  employment
activities.
A review of the file indicates that the Injured Worker has not
engaged in any type of rehabilitation efforts in the past seven
years. The Hearing Officer finds the Injured Worker's lack of
interest in participation in rehabilitation is a negative factor in
regards to adjudicating her application for permanent total
disability compensation.
For the reasons stated above, the Staff Hearing Officer finds
that  the  Injured  Worker  is  able  to  engage  in  sustained
remunerative work activity and is not permanently and totally
disabled.
{¶21}                                                                                       11.   On  May 13,                            2010,  relator,  Kathleen  Keller,  filed  this  mandamus
action.
Conclusions of Law:
{¶22}  Two  issues  are  presented:                                                         (1)  whether  the  commission  abused  its
discretion in determining that relator is vocationally qualified for sedentary employment
when Dr. Fritzhand opined that the industrial injury permits "medium work," and  (2)
whether the commission abused its discretion by allegedly not addressing in its order
the  impact  of  relator's  pain  on  her  ability  to  perform  sustained  remunerative
employment.

No. 10AP-455                                                                               12
{¶23}  The magistrate finds: (1) the commission did not abuse its discretion in
determining that relator is vocationally qualified for sedentary employment when Dr.
Fritzhand  opined  that  the  industrial  injury  permits  "medium  work,"  and            (2)  the
commission did not abuse its discretion by allegedly failing to address in its order the
impact of relator's pain on her ability to perform sustained remunerative employment.
{¶24}  Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
{¶25}  Turning  to  the  first  issue,  Ohio  Adm.Code                                     4121-3-34  sets  forth  the
commission's rules for the adjudication of PTD applications.   Ohio Adm.Code 4121-3-
34(B)   sets   forth   definitions.                                                        Ohio   Adm.Code               4121-3-34(B)(2)   is   captioned
"Classification of physical demands of work."
{¶26}  Thereunder, the following definitions are provided:
(a) "Sedentary work" means exerting up to ten pounds of
force occasionally  (occasionally: activity or condition exists
up to one-third of the time) and/or a negligible amount of
force frequently (frequently: activity or condition exists from
one-third to two-thirds of the time) to lift, carry, push, pull, or
otherwise  move  objects.  Sedentary  work  involves  sitting
most of the time, but may involve walking or standing for
brief  periods  of  time.  Jobs  are  sedentary  if  walking  and
standing  are  required  only  occasionally  and  all  other
sedentary criteria are met.
(b) "Light work" means exerting up to twenty pounds of force
occasionally, and/or up to ten pounds of force frequently,
and/or a negligible amount of force constantly  (constantly:
activity or condition exists two-thirds or more of the time) to
move objects. Physical demand may be only a negligible
amount, a job should be rated light work: (1) when it requires
walking or standing to a significant degree; or  (2) when it
requires sitting most of the time but entails pushing and/or
pulling  or  arm  or  leg  controls;  and/or                                               (3)  when  the  job
requires  working  at  a  production  rate  pace  entailing  the

No. 10AP-455                                                                                    13
constant pushing and/or pulling of materials even though the
weight of those materials is negligible.
(c) "Medium work" means exerting twenty to fifty pounds of
force occasionally, and/or ten to twenty-five pounds of force
frequently, and/or greater than negligible up to ten pounds of
force   constantly   to   move   objects.   Physical   demand
requirements are in excess of those for light work.
{¶27}  The commission, through its SHO, relied upon the reports of Dr. Fritzhand
in determining relator's residual functional capacity.   Dr. Fritzhand opined that relator is
capable of "medium work" on the physical strength rating form.
{¶28}  While  the  relied-upon  physician,  Dr.  Fritzhand,  opined  that  relator  is
medically capable of performing "medium work," the commission's nonmedical analysis
determined that relator was vocationally qualified for sedentary work.
{¶29}  Given that an injured worker capable of medium work is, by definition, also
capable of light work and sedentary work, it cannot be an abuse of discretion for the
commission to determine that relator is vocationally capable of sedentary work, and on
that basis deny the PTD application.
                                                                                                       {¶30}  Turning  to  the  second  issue,  clearly,  pain  can  be  a  factor  under
                                                                                                       consideration in a PTD proceeding.   State ex rel. Unger v. Indus. Comm. (1994), 70
Ohio  St.3d                                                                                     672,   676.                                                                                      However,  contrary  to  relator's  suggestion,  pain  is  not  a
                                                                                                       nonmedical or vocational factor that must be specifically addressed in the commission's
order.
{¶31}  Rather, if pain is a factor in an industrial injury, it should be addressed by
the examining physicians in their reports.   When the commission determines residual
functional capacity by stating reliance upon one or more medical reports, pain will be

No. 10AP-455                                                                                 14
included to the extent that the relied upon doctor or doctors have included pain in their
assessment of the claimant's medical capacity for work.
{¶32}  Here, Dr. Fritzhand considered relator's pain associated with the allowed
conditions of the claim.
{¶33}  Under "current symptoms," Dr. Fritzhand records relator's reporting to him
her pain complaints.   Under "discussion," while not using the word "pain," Dr. Fritzhand
refers to relator's "musculoskeletal distress" that has persisted since the accident.   He
also refers to her "subjective symptoms."
{¶34}  In his evaluation of whole body impairment, Dr. Fritzhand estimates an
impairment of three percent due to pain.
{¶35}  Because  Dr.  Fritzhand  factored  pain  into  his  medical  evaluation,  the
commission  necessarily  included  pain  in  its  determination  of  residual  functional
capacity.    There was no need for the commission to specifically mention pain in its
order.
{¶36}  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/ Kenneth W. Macke
KENNETH  W.   MACKE
MAGISTRATE
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).

Download 2011-ohio-2742.pdf