[Cite as State ex rel. Werman v. Indus. Comm., 2017-Ohio-4409.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Alfred E. Werman, III, : 

 

 Relator, : 

v. : No. 16AP-637 

 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

C & A Ambulance, Inc., : 

 

 Respondents. : 

 

 D E C I S I O N 

Rendered on June 20, 2017

 

Law Offices of Brelo & Annotico, and Ronald A. Annotico, 

for relator. 

Michael DeWine, Attorney General, and Latawnda N. 

Moore, for respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

TYACK, P.J. 

{¶ 1} Alfred E. Werman, III, filed this action in mandamus, seeking a writ to 

compel the Industrial Commission of Ohio ("commission") to grant him an award of 

permanent total disability compensation. 

{¶ 2} In accord with Loc.R. 13 of the Tenth District Court of Appeals, the case was 

referred to a magistrate to conduct appropriate proceedings. 

{¶ 3} The parties stipulated the pertinent evidence and filed briefs. The 

magistrate then issued a magistrate's decision, appended hereto, which contains detailed 

findings of fact and conclusions of law. The magistrate's decision includes a 

recommendation that we deny the request for a writ of mandamus. 
No. 16AP-637 2 

{¶ 4} No party has filed objections to the magistrate's decision. 

{¶ 5} We, as a court, now undertake an independent review of the magistrate's 

decision. 

{¶ 6} We find no error of law or fact on the face of the magistrate's decision. We, 

therefore, adopt the findings of fact and conclusions of law contained in the magistrate's 

decision. As a result, we deny the request for a writ of mandamus. 

Writ of mandamus denied. 

SADLER and BRUNNER, JJ., concur. 

 

 
No. 16AP-637 3 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Alfred E. Werman, III, : 

 

 Relator, : 

v. : No. 16AP-637 

 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

C & A Ambulance, Inc., : 

 

 Respondents. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on March 21, 2017

 

Law Offices of Brelo & Annotico, and Ronald A. Annotico, 

for relator. 

Michael DeWine, Attorney General, and Shaun P. Omen, for 

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 7} Relator, Alfred E. Werman, III, has filed this original action requesting that 

this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio 

("commission") to vacate its order which denies his application for permanent total 

disability ("PTD") compensation, and ordering the commission to find that he is entitled 

to that award. 

Findings of Fact:
No. 16AP-637 4 

{¶ 8} 1. Relator sustained a work-related injury on February 24, 1987 while 

working as an EMT. 

{¶ 9} 2. Relator's workers' compensation claim has been allowed for the 

following conditions: "strain low back, neck and both shoulders; bulging annulus L4, L5; 

major depressive disorder single." 

{¶ 10} 3. Relator was unable to return to his job as an EMT following the injury 

and received temporary total disability ("TTD") compensation for several years until he 

resumed employment as a cashier. 

{¶ 11} 4. Relator has not undergone any surgeries for the allowed conditions in his 

claim; however, he had surgeries for non-allowed conditions of his neck in 2005 and 

2006. 

{¶ 12} 5. In 2005, relator filed an application with the Social Security 

Administration seeking a determination of disability based on the following conditions: 

[C]hronic neck pain status post surgical fusion and 

stabilization with plate and screws; major depressive 

disorder, generalized anxiety disorder; and lumbar 

radiculopathy. 

 Ultimately, the Social Security Administration found that relator had been 

disabled as defined by the Social Security Act since August 2005, the date he filed his 

application. 

{¶ 13} 6. Relator began receiving TTD compensation again, effective June 7, 2009. 

This award was based solely on the allowed psychological condition. 

{¶ 14} 7. Marian Chatterjee, Ph.D., performed a psychological evaluation of relator 

on December 12, 2013. With regard to the onset of his psychological problems and his 

treatment, Dr. Chatterjee stated: 

The IW had marital and personal counseling in 1987 or 1990 

and was taking Paxil at the time of his injury. He developed 

Major Depression, Single Episode, as a result of the work 

injury. Reports of when he began treatment for his injuryrelated condition vary widely. The IW said he began 

treatment in 2007. IMEs vary in their reports as to when the 

IW began treatment for his injury-related depression from 

1997 ("Ten years after his injury," to 2006, as per Dr. 

Sargious' C84.) He has been in counseling with Keith Burger, 
No. 16AP-637 5 

LISW, and has seen a psychiatrist, Ehab Sargious, M.D., for 

at least the last seven years. He stated for the last year he has 

been seen by Mr. Burger twice a month, yet records do not 

support this. In fact, in his treatment summary on 

10/16/2013, Mr. Burger stated the IW had only been to 

counseling four times in the last six months. Presently, the 

IW takes Paxil 40mg qd, Wellbutrin 150mg qam, Seroquel 

50mg hs, and Valium 10mg qid. On 10/11/11, the IW went to 

Trumbull Memorial ER for suicidal ideation after having 

researched how to kill himself and it said to get help before 

trying. He was not admitted to the hospital. Per Trumbull 

Memorial Hospital ER notes, "Past psychiatric history: prior 

diagnosis: depression. Severity of symptoms: At their worst, 

symptoms were moderate. It is unknown whether patient has 

had similar symptoms in the past. PATIENT READING A 

BOOK ON HOW TO KILL SELF. HANGING 75 PERCENT 

EFFECTIVE, SHOOTING, MAY FLINCH. Associated signs 

and symptoms: Pertinent positives: depression: BROTHER 

SICK, MAKING PATIENT DEPRESSED, BUT NO INTENT 

ON KILLING SELF HE INSISTS. WIFE AND FAMILY AND 

FRIENDS LATER HERE INSIST PATIENT GO HOME 

THAT HE IS NOT SUICIDAL." The IW has been on his 

current psychotropic meds for about eight months and 

seeing his counselor "twice a month" per self-report but not 

even once a month per the 10/16/13 treatment summary. In 

therapy at least the past six years, when asked how he feels 

he is doing, he stated, "A little bit better." He thinks he tries 

to do more house chores than he used to. "I'm trying to look 

at my cup as half full." He was unable to articulate actual 

behavior changes. "I think I am more patient with my 

decisions." 

{¶ 15} With regard to his current mental state and level of functioning, 

Dr. Chatterjee opined that relator had reached maximum medical improvement ("MMI"), 

stating: 

[T]he IW has undergone many years of psychiatric and 

psychological treatment. Reports of when he began 

treatment vary greatly. In Dr. Villalba's IME 11/1/12, he 

states the IW has been in treatment for depression 8 years. 

In Dr. Leach's 3/16/12 report, he states treatment began 10 

years after the 1987 work injury. Dr. Sargious' C84, dated 

7/6/11, indicated a disability starting date on 2/10/06. 

Dr. Pecorelli's C92, dated 10/10/11, states the IW began 

treatment in 2005. His psychotropics have remained 
No. 16AP-637 6 

unchanged for at least eight months. In his treatment 

summary of 10/16/13, Mr. Burger stated the IW had been 

seen four times in the last six months. In addition, stressors 

were overwhelmingly unrelated to the work injury, "Most of 

the problem children, family members are no longer living 

with them and so stress is down for the moment. But he is 

about to become embroiled in a custody fight for two of his 

children, which if successful would once again change the 

family dynamics and likely increase stress on him and his 

wife Judy. Custody fights and blended families are often 

stressful and I expect this situation to be no different. If he 

should lose the custody fight, it would be most difficult for 

him to accept." An 8/2/12 summary by the IW's therapist 

focused almost exclusively on the IW's numerous family 

stressors. While the consequences of his injury are 

significant and persistent, there are numerous significant 

stressors that in my opinion are not directly related to the 

injury. Besides being very much affected by the family 

dysfunction, the IW was unable to articulate any objective 

progress. He has reached a treatment plateau. 

{¶ 16} Considering only his psychological conditions, Dr. Chatterjee opined that 

relator would be able to return to his former work and that he did not need any more 

psychological treatment for the allowed conditions in his claim. With regard to his overall 

psychiatric condition, Dr. Chatterjee noted that he had many life stressors which were 

unrelated to his 1987 work injury and those stressors continued to cause him problems. 

{¶ 17} 8. Relator's compensation was terminated effective January 23, 2014 based 

on a finding that the allowed conditions in his claim had reached MMI. The commission 

relied on the report of Dr. Chatterjee. 

{¶ 18} 9. Relator filed his application for PTD compensation on September 18, 

2015. At that time, relator was 51 years old. According to his application, relator 

indicated that he had obtained his GED and had received an associate's degree from 

Cuyahoga Community College. He could also read, write, and perform basic math and 

indicated that he had participated in some vocational rehabilitation. 

{¶ 19} 10. Relator's application for PTD compensation was supported by medical 

reports from Douglas Muccio, Ph.D., and M.P. Patel, M.D. In his May 21, 2015 report, Dr. 

Muccio opined that relator's psychiatric condition alone rendered him unable to be 

competitively employed. In his July 20, 2015 report, Dr. Patel provided his physical 
No. 16AP-637 7 

findings on examination and opined that, as a result of the allowed physical conditions in 

his claim, relator was permanently and totally disabled from engaging in any gainful 

employment. 

{¶ 20} 11. John L. Dunn, D.O., examined relator for his allowed physical 

conditions. In his April 4, 2016 report, Dr. Dunn identified the allowed conditions in 

relator's claim and provided his physical findings on examination. Dr. Dunn opined that 

relator had a 42 percent impairment for the current allowed physical conditions and 

opined that relator was capable of performing medium level work. 

{¶ 21} 12. Relator's application was heard before a staff hearing officer ("SHO") on 

June 22, 2016. The SHO discussed relator's injury, his work history following the injury, 

and spent a considerable amount of time discussing the disability application filed with 

the Social Security Administration. The SHO quoted from the determination, stating: 

The Administrative Law Judge determined that the Injured 

Worker has "severe impairments: chronic neck pain 

status post-surgical fusion and stabilization with 

plate and screws." (Emphasis added.) The Administrative 

Law Judge explained further as follows: 

The medical evidence of record reflects the claimant's 

multiple cervical spine surgeries, and documents postsurgical imaging showing swelling and continuing disc space 

narrowing. The claimant's head and neck pain has been so 

severe as to require emergency treatment, and physical 

examination shows continued right upper extremity 

weakness. In terms of the lumbar spine, imaging showed disc 

herniation. The most recent physical examination showed 

decrease range of motion throughout, and in terms of the 

lower extremities, positive straight leg raising test, decreased 

sensation in the L5 distribution, inability to heel-toe walk, 

and wide based in the L5 distribution, inability to heel-toe 

walk, and wide-based gait. Chronic pain has leg to increased 

depression, requiring emergency treatment related to 

suicidal ideation. (Emphasis added.) 

Based upon the above findings, the Administrative Law 

Judge awarded the Injured Worker Social Security Disability 

benefits for a disability period commencing 8/23/2005. 

Again, this worker's compensation claim has not 

been recognized for any cervical disc disorder or 

lumbar disc herniation. The Administrative Judge of the 
No. 16AP-637 8 

Social Security Administration clearly based his impairment 

determination on conditions presently outside the scope of 

this worker's compensation claim. 

(Emphasis sic.) 

{¶ 22} Ultimately, the SHO relied on the same medical evidence relied on by the 

Social Security Administration as well as the report of Dr. Dunn and opined that, based 

solely on the allowed physical conditions in his claim, relator was able to perform at a 

medium strength level. 

{¶ 23} With regard to the allowed psychological condition, the SHO relied on the 

report of Dr. Chatterjee stressing her opinion that, based on the allowed psychological 

condition, relator could return to his former position of employment as an EMT. 

{¶ 24} Thereafter, the SHO considered that relator's age of 52 years was a positive 

factor which provided him time to undergo and re-education or training necessary to find 

employment within his residual capacity, his attainment of a GED and an associate's 

degree were also considered positive factors. Thereafter, the SHO considered his 

employment as an EMT, cashier, and a sales associate to have provided him with skills 

that were transferrable to work within his residual functional capacity. As a result, the 

SHO denied his application for PTD compensation. 

{¶ 25} 13. Relator's request for reconsideration was denied by order mailed 

August 13, 2016. 

{¶ 26} 14. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 27} For the reasons that follow, it is this magistrate's decision that this court 

should deny relator's request for a writ of mandamus. 

{¶ 28} The Supreme Court of Ohio has set forth three requirements which must be 

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to 

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act 

requested; and (3) that relator has no plain and adequate remedy in the ordinary course 

of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 29} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, relator must show a clear legal right to the relief sought 
No. 16AP-637 9 

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 where the relator shows 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 record 

contains some evidence to support the commission's findings, there has been no abuse of 

discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry 

Co., 29 Ohio St.3d 56 (1987). 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). 

{¶ 30} The relevant inquiry in a determination of permanent total disability is 

claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic 

v. Indus. Comm., 69 Ohio St.3d 693 (1994). Generally, in making this determination, the 

commission must consider not only medical impairments but also the claimant's age, 

education, work record and other relevant non-medical factors. State ex rel. Stephenson 

v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's medical capacity to work is 

not dispositive if the claimant's non-medical factors foreclose employability. State ex rel. 

Gay v. Mihm, 68 Ohio St.3d 315 (1994). The commission must also specify in its order 

what evidence has been relied upon and briefly explain the reasoning for its decision. 

State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991). 

{¶ 31} Relator's first argument is that the commission abused its discretion by 

relying on the report of Dr. Chatterjee. First, relator argues that Dr. Chatterjee's report 

was stale and the purpose of the report was not to assess whether or not relator was 

permanently and totally disabled. Second, relator argues that Dr. Chatterjee's report did 

not take into account intervening events which resulted in the deterioration of his 

psychological condition. 

{¶ 32} Pursuant to Ohio Adm.Code 4121-3-34(C)(1) with regards to applications 

for PTD compensation, any medical examination on which a report is based must be 

performed within 24 months prior to the date of the filing of the application for PTD 

compensation. As such, Dr. Chatterjee's report is not necessarily stale as a matter of law. 

Further, although the examination and report were conducted and written to evaluate 
No. 16AP-637 10 

whether or not relator continued to be entitled to TTD compensation as opposed to PTD 

compensation, Dr. Chatterjee did address the issue which is pertinent in a PTD 

determination. Dr. Chatterjee specifically stated that relator's allowed psychological 

condition was not work prohibitive. In fact, Dr. Chatterjee opined that relator could 

return to his former position of employment when only the allowed psychological 

condition was considered. As such, Dr. Chatterjee's report was not necessarily stale and 

did address the pertinent question. 

{¶ 33} Part of relator's staleness argument is that Dr. Chatterjee's report did not 

take into account relator's attempted suicide and hospitalizations which occurred after Dr. 

Chatterjee wrote her report. This part of relator's argument necessitates a review of the 

medical records related to these occurrences. The April 11, 2016 report from Ten Lakes 

Center indicates: 

51 year old Caucasian male, presenting to the ED after a 

suicide attempt by crashing his car in to a pole while 

intoxicated. PT is sad, depressed, hopeless, emotionally 

unstable and anxious. PT has marital problems and said that 

he is tired of life and hates life. PT needs to be evaluated to 

ensure safety and stability. 

{¶ 34} Additional records from Ten Lakes Center, including the report dated 

April 11, 2016, indicate that relator's history was significant for depression, as well as 

chronic back, neck, and hip pain. Those records indicate that the neck surgery relator 

underwent did not have a positive outcome. 

{¶ 35} As Dr. Chatterjee noted in her report, relator has other significant life 

stressors which impact his psychological condition. Nothing in the records from Ten 

Lakes Center supports relator's argument that his attempt at suicide resulted from the 

allowed condition in his workers' compensation claim. Instead, evidence of his marital 

problems, the upcoming custody battle, and the pain in his neck from a failed surgical 

surgery significantly impacted him both physically and psychologically. As such, to the 

extent that relator argues that Dr. Chatterjee's report is stale because it does not take into 

account his attempt at suicide and psychiatric hospitalizations is not supported by the 

medical evidence in the record as it cannot be said that those events were related to the 

allowed conditions in his claim. As such, the magistrate finds that relator did not 
No. 16AP-637 11 

demonstrate that the commission abused its discretion when it relied on the report of Dr. 

Chatterjee. 

{¶ 36} Relator also argues that the commission arbitrarily and unreasonably 

rejected his competent medical evidence pertaining to his allowed physical conditions 

without explanation. The magistrate specifically rejects this argument because, by law, 

the commission is only required to identify the medical evidence on which it relies and 

provide a brief explanation. The commission is not required to mention other reports 

which are also in evidence, nor is the commission required to provide any explanation for 

why it found certain medical evidence to be unpersuasive. See State ex rel. DeMint v. 

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

St.3d 250 (1996). Further, the commission is the sole evaluator of the medical evidence 

and it is immaterial whether there is other evidence, even if greater in quantity or quality. 

State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981); State ex rel. Pass v. C.S.T. 

Extraction Co., 74 Ohio St.3d 373 (1996). 

{¶ 37} Based on the foregoing, it is this magistrate's decision that relator has not 

demonstrated that the commission abused its discretion when it denied his application 

for PTD compensation and this court should deny his request for a writ of mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

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).