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6upretue Court of Ooio

STATE, ex rel.JASON S. BAILEY,

Appellant,

V.

INDUSTRIAL COMMISSION OF OI1I0,et al.,

Appellees.

Case No. 12-1826

On Appeal from theFranklin County Court of Appeals,Tenth Appellate DistrictCase No. 11AP-833

MERIT BRIEF OF APPELLEE,INDUSTRIAL COMMISSION OF OHIO

CHELSEA J. FULTON (0086853)PHILLIP J. FULTON (0008722)Phillip J. Fulton Law Office89 East Nationwide Blvd., Suite 300Columbus, Ohio 43215614-224-3838614-224-3933 Faxchelseaoa fultonl alw. comphilGfultonlaw.com

Counsel for Appellant,Jason S. Bailey

MICHAEL DEWINE (0009181)Ohio Attorney General

PATSY A. THOMAS (0063312)Assistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22"d FloorColumbus, Ohio 43215614- 466-6696614-728-2538 FaxPatsv. ThomasAOhioAttorneyGeneral. 2ov

Counsel for Appellee,Industrial Commission of Ohio

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TABLE OF CONTENTS

INTRODUCTION .. ....... ................. ......................................................... . ........................ ... I

STATEMENT OF THE FACTS .................................................................................................... I

LAW AND ARGUMENT .. .. ......... ................... .....................................>.............................,..... 4

PROPOsITION OF LAW I :. ................................................................................ ...................... 4

As the sole fact finder in determining the weight and credibility to be givenevidence, the Industrial Commission does not abuse its discretion when itsdecision is supported by some evidence in the administrative record. ........ ........................4

PROPOSITION OF LAW II :........................................................................................................ 10

A party who had an opportunity to raise an issue before a lower court btrt failed todo so is prohibited from raising the issue on appeal ......................................................... 10

CONCLUSION .. .. .................................................................................... . ............. .. . .... 11

CERTIFICATE OF SERVICE ....................................... ......... ......... ...............,........................ 1 I

a

TABLE OF AUTHORITIES

Cases

Schade v. Carnegie Body Co.70 Ohio St.2d 207 (1982).. .... . ... ........ .. ..... ..... .......................................... 10

State ex r•el. Bailey v. Indus. Comm.14th Dist. No. 11 AP-83 3 ................................................................................................... ....... 4

State ex rel. Burley v. Coil Packing, Inc.31 Ohio St.3d 18 (1987) .... ......... ... . .......... ....... . ...... . .. .............................................. 7

State ex rel. Consolidation Coal Co. v. Indus. Comm.78 Ohio St.3d 176, 1997-Ohio-46 ............................................................................. ................ 7

State ex rel, DeMint v. Indus. Comm.49 Ohio St.3d 19 (1990). . ................... ....................................... .......................................... 9

State ex rel. Elliott v. Indus. Comm.26 Ohio St.3d 76 (1986) ................................................. ......... . .... . ...... .. ... . ....... . . 4

State ex rel. Hiles v. Netcare Corp.76 Ohio St.3d 404 (1996).. .... ......... ..... .................................. ................................................ . 8

State ex rel. Lovell v. Indus. Conim.74 Ohio St.3d 250, 1996-Ohio-321 .................... .............................. ....... .. .. ....... 9

State ex rel. Marshall v. Keller15 Ohio St.2d 203 (1968)................................................................................................................ 5

State ex rel. Menold v. Maplecrest Nursing Home76 Ohio St.3d 197, 1996-Ohio-146........... ... ..... .... .... ...... . .... .............. .. ........ .. ... ..................... ......... 8

State ex rel. Pressley v. Indus. Conzrn.11 Ohio St,2d 141 (1967) ........................................................................................................... . 4

State ex rel. Quarto Mining Co. v. Foreman79 Ohio St.3d 78, 1997 Ohio 71 ....... .. .... ... . .......... .. ......................................... 10

State ex rel. St. Marys Foundry Co. v. Indus. Conam.78 Ohio St.3d 521 (1997) .................................................................................. ..... ..... .... 5

State ex rel. Stephenson v. Indus. Comm.31 Ohio St.3d 167 (1987) . .... ............... .............................................. ................................ 5

ii

State ex rel. Teece v. Indus. Comm.68 Ohio St.2d 165 (1981) ..................................... ......... ......... .....................,............................... 5

State ex rel: Verbank v. Indus. Comm.73 Ohio St.3d 562, 1995-Ohio-562 ........................................................................ ....... ... 10

State ex rel. Yancey v. Firestone Tire & Rubber Co.77 Ohio St.3d 367 (1997) ...................................... ......... .. .... ...... ..... ................................ 4

Zamora v. Indus. Comm.45 Ohio St.3d 17 (1989) ....... . ..........................................................

Other Authorities

............................. 10

Civ.R. 53(D)(4)(d) ........ ......................................................................................... ..5

Ohio Adm.Code 4121-3-34(D)(3)(f) .............................. . ...... . ..... .... .......... ........ .......... 10

iii

INTRODUCTION

This case arose as an original action in mandamus in the Court of Appeals, Tenth

Appellate District. Appellant, Jason S. Bailey ("Bailey"), alleged that Appellee, Industrial

Commission of Ohio ("commission"), abused its discretion when it issued an order denying

Bailey's application for permanent total disability ("PTD") compensation. Bailey asserted that

one of the medical reports the commission relied on was stale and, therefore, was not evidence

on which the commission could rely. The lower court correctly held that the commission did not

abuse its discretion and denied the requested extraordinary writ of mandamus.

STATEMENT OF THE FACTS

Bailey has a diverse semi-skilled to skilled work history, which includes working as a

construction worker, maintenance worker, appliance salesperson, hardware salesperson, forklift

operator, tempering associate, and fast food restaurant assistant manager. (Second Supplement

at page 1; hereinafter "S.S. #"). While working these various jobs, Bailey was injured on four

separate oecasions. The first claim is allowed for "open wound of rigllt thumb;" the second

claim is allowed for "right shoulder sprain; right shoulder tendonosis; right brachial nerve

impingement; right shoulder impingement; right subscapular entrapment neuropathy; right

glenohumeral instability; pain disorder; [and] aggravation of preexisting dysthymia;" the third

claim is allowed for "contusion of right knee;" and the fourth claim is allowed for "right carpal

tunnel syndrome." Id.

Bailey filed two applications for PTD compensation at separate times. His first

application was filed on May 7, 2009. (S.S. 5). On July 13, 2009, William Reynolds, M.D.,

opined that Bailey had "reached a level of maximum medical improvement" and, based on the

allowed physical conditions in all four of his industrial claims, Bailey had 27% whole person

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impairment. (S.S. 13). Dr. Reynolds completed a "Physical Strength Rating" form on July 13,

2009, and opined that Bailey was capable of "light work" as indicated on the form and provided

the following additional limitations: "right upper extremity 10 lbs/day [and] no work above

shoulder height." (S.S. 18).

At the commission's request, Bailey was examined by Lee Howard, Ph.D., on September

24, 2009. Dr. Howard's examination was limited to the two psychological/psychiatric conditions

allowed in his second claim, "pain disorder" and "aggravation of pre-existing dysthymia." Dr.

Howard opined:

[Bailey] has reached maximum medical improvement. *** [He] has a 5%permanent partial impairment for pain disorder and dysthymic disorder. Note thathis complaints are subjective in nature only without any objective validation. ***He can perform without significant limitations at this time. *** Additionalpsychotherapy is not going to be beneficial for [Bailey]. He is measuring a bodyof symptoms which is not amenable to traditional psychological or psychiatriccare (exaggeration and malingering type tendencies are measured on objectivetesting today).

(S.S. 20).

On November 13, 2009, a hearing was held before a staff hearing officer ("SHQ") for the

commission and the SHO issued an interlocutory advisement order, taking Bailey's request for

PTD compensation under advisement. (S.S. 36). The SHO reconvened the hearing and issued

an order denying Bailey's May 7, 2009 PTD application. Id. The SHO relied on Dr. Reynolds'

July 13, 2009 report and Dr. Howard's September 24, 2009 report. (S.S. 43).

Bailey's treating psychologist, Charles R. Paugh, issued a letter on September 3, 2010,

requesting that Bailey "resume psychotherapy *** to address issues related to dysthymia and

pain disorders." (S.S. 48). On September 7, 2010, Dr. Paugh filed a C-9 form, requesting

approval of psychotherapy, and the managed care organization ("MCO") approved six visits

beginning September 2, 2010, through December 2, 2010. (S.S. 49). Dr. Paugh submitted

2

another C-9 form requesting additional psychotherapy. The MCO approved five visits over three

months beginning December 30, 2010. (S.S. 50).

Bailey filed his second application for PTD compensation on January 14, 2011. (S.S.

52). Bailey was examined by Joseph Keams, D.O., for the physical conditions allowed in his

four industrial claims. (S.S. 60). In his March 2, 2011 report, Dr. Kearns opined:

[Bailey] does have pain-limited function to the right upper extremity as a result ofhis injuries. He also has decreased grip strength in part frotn his injuries and inpart from other conditions. As such, he would not be able to perform more thansedentary activity with the right arm. He could perform more intense activity orunrestricted activity with the left arm although that is not his dominant arm. Forthe right arm, he would be limited to 10 pounds maximum force, no over shoulderwork, no repetitive gripping, no forceful gripping, and limited reaching.

Id. As to Bailey's psychological conditions, Mary K. Hill, Ph.D., examined Bailey on March 15,

2011. (S.S. 67). Dr. Hill opined that, based on the allowed psychological conditions, Bailey's

"fianctioning is in the Mild Impairment range and is consistent with an estimated 10%

impairment of the whole person." Id. Further, on the Occupational Activity Assessment

attached to her report, Dr. Bailey stated that Bailey was incapable of work and "would not be

able to maintain gainful employment on a consistent basis." Id.

On May 23, 2011, a SIIO held a hearing on Bailey's January 24, 2011 PTD application

and held:

Such a review persuades the [SHO] that the most accurate assessment of[Bailey's] psychological capacity for work is that included in the 09-24-2009report from psychologist Dr. Howard, with the report serving in part as the basisfor the denial of [Bailey's] prior application for [PTD] benefits per [SHO] dated11/13/2009.

Based on the report from Dr. Howard, which is persuasive, the [SHO] finds thatthe impairment arising from the psychological conditions recognized in claim 01-485956 does not prevent [Bailey] from returning to work at his former position ofemployment and does not result in any work limitations.

3

(S.S. 1). Further, finding Dr. Kearn's report persuasive, the SHO found:

[Bailey] has the residual functional capacity to perform sedentary work activitywith the right upper extremity and unrestricted activity with the left upperextremity as specified in [Dr. Kearns'] report. Furthermore, when his degree ofoverall medical impairment is considered in conjunction with his non-medicaldisability factors, the [SHO] finds that [Bailey] is capable of sustainedremunerative employment and is not permanently and totally disabled.

(S.S. 1). Bailey filed an action in mandamus in the Court of Appeals, Tenth Appellate District,

requesting the court to find that the commission abused its discretion by denying his request for

PTD compensation. On May 30, 2012, a magistrate for the lower court rendered a decision

denying Bailey's request for a writ of mandamus. Bailey filed objections and, on September 11,

2012, the lower court issued a decision adopting the magistrate's findings of fact and conclusions

of law. (State ex rel. Bailey v. Inclus. Comm., 10"' Dist. No. 11AP-833; hereinafter "Decision, ¶

*"). It is from the lower court's decision that Bailey appeals.

LAW ANI) ARGUMENT

PROPOSITION OF LAW I:

As the sole fact finder in determining the weight and credibility to be givenevidence, the Industrial Commission does not abuse its discretion when itsdecision is supported by some evidence in the administrative record.

To be entitled to a writ of mandamus, Bailey must show a clear legal right to the relief

sought and that the commission has a clear legal duty to provide such relief: State, ex rel.

Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus

exists if Bailey is able to show that the commission abused its discretion by entering an order

which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26

Ohio St.3d 76 (1986). On the other hand, where the commission's decision is supported by some

evidence, it cannot be disturbed in mandamus as an abuse of discretion. State ex rel. Yancey v.

4

Firestone Tire & Rubber Co., 77 Ohio St.3d 367 (1997). A writ of mandamus is not a means to

conduct an appellate review of a decision with which a party disagrees, nor is a writ of

mandamus a de novo review. "Mandamus is not a substitute for an appeal, nor can it be used to

create an appeal in cases where an appeal is not provided by law." State ex rel. Marshall v.

Keller, 15 Ohio St.2d 203 (1968). Furthermore, questions of credibility and the weight to be

given evidence are clearly within the discretion of the commission as fact finder. State ex rel.

Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). In State ex rel, aS`tephenson v. Indus. Comm.,

31 Ohio St.3d 167, 170 (1987), this Court held:

It is basic law, without need of citation, that the Industrial Commission hasconsiderable discretion in the performance of its duties; that its actions arepresumed to be valid and performed in good faith and judgment, unless shown tobe otherwise; and that so long as there is some evidence in the file to support itsfindings and orders, this court will not overtuni such.

(Emphasis added.) The presumption that, in areas over which the commission has

jurisdiction, the agency's orders are "in all respects valid and in the exercise of good faith and

sound judgment" was reaffirmed in State ex rel. St. Marys Foundry Co. v. Indus. Comm., 78

Ohio St.3d 521, 522 (1997).

Here, the magistrate followed the proper standard of review for a mandamus action and

the lower court followed the proper procedure for reviewing the magistrate's decision. Civ.R.

53(D)(4)(d) provides:

Action on objections. If one or more objections to a magistrate's decision aretimely filed, the court shall ri2le on those objections. In ruling on objections, thecourt shall undertake an independent review as to the objected matters to ascertainthat the magistrate has properly determined the factual issues and appropriatelyapplied the laNv. Before so ruling, the court may hear additional evidence but mayrefuse to do so unless the objecting party demonstrates that the party could not,with reasonable diligence, have produced that evidence for consideration by themagistrate.

Bailey filed two objections to the magistrate's decision:

5

SPECIFIC OBJECTION 1The Magistrate Erred by Failing to Address Relator's Arguments Regarding Dr.Hill's Report.

SPECIFIC OBJECTION 2The Magistrate Failed to Acknowledge the Significance of Mr. Bailey'sPsychological Treatment as it Related to the Validity of Dr. Howard's Report.

(Decision, T, 10). To address Bailey's objections, the lower court must independently review the

magistrate's decision that Dr. Howard's 2009 report was some evidence on which the

commission could rely. 'I'he magistrate found the commission's reliance on Dr. Howard's 2009

report was not an abuse of discretion. Based on Bailey's first objection, the lower court's review

of the magistrate's decision specifically addressed Dr. Howard's 2009 report, as required.

Contrary, to Bailey's allegations, each statement the lower court made regarding Bailey's

deception and malingering are contained in the administrative record. Dr. Howard opined:

[T]he claimant's high level of subjective complaints are not validated on anyobjective psychometric testing.

Personality testing, the MMPI-II, is clearly invalid and measuring some highlevel of an exaggeration tendency.

Generalized symptom validity testing, the SIMS is measuring some high formof a malingering type tendency.

Additional symptom validity testing, the Rey 15-Item test, in reference to hiscognitive complaints, is also positive. Simulation of the memory complaint oftencorrelates with simulation of more generalized psychopathology. [This statementreferences footnote 3 which denotes an article "'Exaggeration of distress anddissimulated memory failure' (author omitted)".]

Clinical Observations today do not reveal classic symptoms of depressionand/or pain disorder, but do reveal a high complaint rate, perceived post-accidentmistreatment, passive aggressive relating style, and a general/vague/evasivehistorical account,

(S.S. 43). The lower court summarized the salient facts determined by the magistrate and, based

on the evidence that was before the commission, amplified the magistrate's decision to fully

6

address Bailey's objections. The lower court held "[t]he findings of fact and conclusions of law

in the magistrate's decision are adopted. For the reasons set forth in the magistrate's decision, as

amplified here, the request for a writ of mandamus is denied." (Decision, ^ 23). Thus, the lower

court determined that the magistrate properly determined the factual issues and appropriately

applied the law.

Further, Bailey's arguments regarding Dr. Howard's 2009 report are weight-of-the-

evidence arguments. Bailey is requesting this Court to reweigh the evidence that was before the

commission. However, mandamus proceedings are not a vehicle in which a party may simply

ask the Court to reweigh the evidence. This Court has consistently refused to do the

commission's job of assessing the weight and credibility of the evidence. "[T]his court's review

of a comznission's order pursuant to a complaint for a writ of mandamus should be limited to

deterrriining whether there is some evidence to support the commission's order." State ex rel.

Consolidation Coal Co. v. Indus. Conim., 78 Ohio St.3d 176, 1997-Ohio-46, citing State ex yel.

Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20 (1987). The commission is only required to

cite evidence in support of its decision, and the presence of contrary evidence is immaterial. Id.

As the sole fact finder in determining the weight to be given evidence, the coniniission

did not abuse its discretion by finding Dr. Howard's 2009 report persuasive. (S.S. 1). Dr.

Howard evaluated Bailey approximately sixteen (16) months prior to the filing of his 2011 PTD

application. During his evaluation, Dr. Howard noted Bailey was being deceptive and had

inconsistencies in his oral history. (S.S. 43). Further, Dr. Howard administered the Minnesota

Multiphasic Personality Inventory-2 test that indicated Bailey was engaging in "a very high level

of symptom magnification andlor exaggeration." Id.

7

This Court has held "[a] finding of evidentiary staleness should always be approached

cautiously. More relevant than the time at which a report was rendered are the content of the

report and the question at issue." State ex rel. Hiles v, Netcare Corp., 76 Ohio St.3d 404, 407

(1996). Bailey's contention that Dr. Howard's report is nonprobative because it predates his

second PTD application is without merit. In State ex rel. Menold v. Maplecrest Nursing Home,

76 Ohio St.3d 197, 1996-Ohio-146, the commission denied claimant's second PTD application

based on a 3%z years old medical report. This Court noted that the issue was whether Dr.

McCloud's report constituted some evidence supporting the comxnission's decision. Id. In

addressing that issue, this Court held:

In this case, it must be remembered that claimant first claimed pertnanent totaldisability compensation on December 1, 1989. Permanent total disabilitycompensation was denied on April 18, 1990 and claimant reapplied less than twomonths later. Because of the extremely short time between denial andreapplication, it is reasonable to say that claimant has been alleging permanenttotal disability consistently since December 1, 1989. In other words, thecondition alleged in 1990 was no different from that alleged in 1989, andMcCloud's report preceded claimant's original application for permanent totaldisability compensation by only eleven days. Claimant cannot, tlzerefore, sustainher claim of staleness.

Id. at 202. As in Menold, Bailey cannot sustain his claim that Dr. Howard's 2009 report is stale.

Dr. Howard's 2009 opinion regarding Bailey's PTD is more relevant than his 2009 opinion

predated Bailey's second PTD application. State ex rel. Hiles, 76 Ohio St.3d at 407. Here,

Bailey has failed to prove that Dr. Howard's report was no longer probative. Menold, supra.

Further, Bailey's award of permanent partial disability ("PPD") compensation does not

render Dr. Howard's 2009 report stale and does not support a change or worsening of his

psychological conditions. The commission granted Bailey's request for PPD based on Michael

Drown's 2005 report. (S.S. 74). As the lower court correctly held, "[Bailey's] contention that

the 21 percent increase in PPD is evidence that [his] psychiatric conditions worsened after the

8

commission's denial of the first PTD application is seriously undermined by the fact that Dr.

Drown's examination pre-dates the commission adjudication of the first PTD application."

(Decision ^ 61).

It is disingenuous for Bailey to request this Court to determine that the lower cour-t erred

because it reweighed the evidence but on the other hand have requested this Court to do the

same. Bailey asserts that "the Court of Appeals did not mention any of this evidence [Dr. Hill's

medical report], did not even address Mr. Bailey's arguments regarding this evidence, but yet

denied his writ ***." (Bailey Brief, p. 15). It is uncontroverted that the administrative record

contains other medical reports pertaining to Bailey's PTD applications. Bailey is asserting that

the commission should have relied on the report of Dr. Hill. The commission was not required

to accept Dr. Hill's opinion regarding Bailey's psychological condition. Further, the commission

did not, and was not required to, mention or refer to Dr. Hill's report. See State ex rel. DeMint

v. Indus. Comm., 49 Ohio St.3d 19 (1990), and State ex rel. Lovell v. Indus. Comm., 74 Ohio

St.3d 250, 1996-Ohio-321. The commission is only required to cite the evidence upon which is

relies. The commission is not required to explain why it finds one report more persuasive than

another. Id. The commission appropriately determined that "the most accurate assessment of

[Bailey's] psychological capacity for work is that included in the 09/24/2009 report from

psychologist Dr. Howard ***." (S,S. 1).

Further, the arguments under Bailey's Proposition of Law II are not continuing

jurisdiction arguments, as premised in the titled. Rather, the arguments presented pertain to the

commission's reliance on Dr. Howard's 2009 report and are weight-of the-evidence arguments,

as delineated above.

9

PROPOSITION OF LAW II:

A party who had an opportunity to raise an issue before a lower court butfailed to do so is prohibited from raising the issue on appeal.

Bailey presents a new argument in his Proposition of Law 3 that he failed to present in

his merit brief. Before the lower court, Bailey raised numerous meritless arguments that Dr.

Howard's 2009 report was not evidence on which the commission could rely. Bailey never

raised the argument that the commission could not rely on I)r. Howard's 2009 report based on

this Court's holding in Zamora v. fndus. Comm., 45 Ohio St.3d 17 (1989). Thus, Bailey has

waived this argument and cannot present it here. This Court has consistently held that issues that

could have been raised but were not raised in complaints, merit briefs, objections or during the

administrative process cannot be raised during an appeal. See State ex rel. Quarto Mining Co. v.

Foremczn, 79 Ohio St.3d 78, 1997 Ohio 71; Schade v. Carnegie Body Co., 70 Ohio St.2d 207,

(1982).

Assuming arguendo that Bailey's new argument presented in his Proposition of Law 3 is

not waived; the "implied rejection" concept of Zanzora did not prohibit the commission's

reliance on Dr. Howard's 2009 report. The alleged implied rejection of Dr. Howard's permanent

partial impairment opinion does not render the remainder of his report unreliable. State ex rel.

Verbank v. Indus. Comm,, 73 Ohio St.3d 562, 1995-Ohio-562. Further, Zamora is also

inapplicable as to Dr. Howard's permanent partial impairment opinion. PPD is not a prerequisite

to establishing entitlement to PTD and PPD cannot be considered "as the sole basis for

adjudicating an application for permanent and total disability." Ohio Adm.Code 4121-3-

34(D)(3)(f),

10

CONCLUSION

The lower court did not err in denying Bailey's request for an extraordinary writ of

mandamus. The commission's order is supported by some evidence in the administrative record.

The commission respectfully requests this Court to affirm the lower court's decision and deny

the requested writ of mandamus.

Respectfully submitted,

MICHAEL DEWINE (0009181)Ohio Attornev General

r

PAT A. THZJIVIl^ S(0063312)Assistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22"d FloorColumbus, Ohio 43215614- 466-6696614-728-2538 FaxPatsy. ThomasQOhioAttorneyGeneral. gov

Counsel for Appellee,Tndustrial Commission of Ohio

CERTIFICATE OF SERVICE

It is hereby certified that a copy of the foregoing was served on this day of June,

2013 to:

Via U.S. MailChelsea J. Fulton, Esq.Phillip J. Fulton, Esq.Philip J. Fulton Law Office89 East Nationwide Blvd., Ste. 300Columbus, Ohio 43215

Counsel for Appellant^f

r.^PATSY . THOMAS (0063312)Assistant Attorney General

11