[Cite as State ex rel. McCormick v. Indus. Comm., 2017-Ohio-370.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Jennifer McCormick, : 

 

 Relator, : 

 

v. : No. 16AP-107 

 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

Edwin Shaw Hospital, : 

 

 Respondents. : 

 

D E C I S I O N 

Rendered on January 31, 2017

 

Ziccarelli & Martello, and James P. Martello, for relator. 

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

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

TYACK, P.J. 

{¶ 1} Jennifer McCormick filed this action in mandamus, seeking a writ to 

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

permanent total disability compensation ("PTD"). 

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

was referred to a magistrate to conduct appropriate proceedings. 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 contains a recommendation that we deny the request for a 

writ of mandamus. 
No. 16AP-107 2 

{¶ 3} No party has filed objections to the magistrate's decision. The case now 

comes before a judicial panel for review. 

{¶ 4} McCormick was injured in 2003 while assisting a patient at Edwin Shaw 

Hospital into bed. Her industrial claim has been allowed for lumbar strain/sprain; 

aggravation of pre-existing degenerated disc disease at L4-5 and aggravation of preexisting anxiety disorder. 

{¶ 5} McCormick drew temporary total disability compensation for awhile but 

was ultimately found to have reached maximum medical improvement. She then filed an 

application for PTD compensation. 

{¶ 6} A staff hearing officer reviewed the conflicting reports about McCormick's 

ability to engage in sustained remunerative employment and issued an order denying her 

application for PTD compensation. 

{¶ 7} This mandamus action followed. 

{¶ 8} Our magistrate carefully analyzed the three issues presented on behalf of 

McCormick and therefore recommended that we deny the request for a writ. We find no 

error of law or fact in 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. 

KLATT and BRUNNER, JJ., concur. 

 

 
No. 16AP-107 3 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Jennifer McCormick, : 

 

 Relator, : 

 

v. : No. 16AP-107 

 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

Edwin Shaw Hospital, : 

 

 Respondents. : 

 

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

Rendered on September 23, 2016

 

Ziccarelli & Martello, and James P. Martello, for relator. 

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

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 9} In this original action, relator, Jennifer McCormick, requests a writ of 

mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to 

vacate the November 16, 2015 order of its staff hearing officer ("SHO") that denies 

relator's application for permanent total disability ("PTD") compensation, and to enter an 

order granting the compensation. 
No. 16AP-107 4 

Findings of Fact:

{¶ 10} 1. On June 6, 2003, relator injured her lower back while employed as a 

registered nurse for respondent, Edwin Shaw Hospital, a state-fund employer. The injury 

occurred when relator was assisting a patient into a bed. 

{¶ 11} 2. The industrial claim (No. 03-842706) is allowed for "lumbar 

strain/sprain; aggravation of pre-existing degenerative disc disease at L4-5; aggravation 

of pre-existing anxiety disorder." The claim is disallowed for "major depressive disorder, 

single episode, moderate." 

{¶ 12} 3. Temporary total disability ("TTD") compensation has been paid in the 

claim. 

{¶ 13} 4. On January 8, 2014, at the request of the Ohio Bureau of Workers' 

Compensation ("bureau"), relator was examined by psychologist Douglas Waltman, Ph.D. 

Dr. Waltman examined for the allowed psychological condition in the claim, i.e., 

aggravation of pre-existing anxiety disorder. 

{¶ 14} 5. In his eight-page narrative report dated January 19, 2014, Dr. Waltman 

states: 

INDEPENDENT MEDICAL EVALUATION 

The Claimant was informed that the information gathered 

during this interview would be forwarded to the Ohio Bureau 

of Workers' Compensation. 

All relevant medical records were reviewed and taken into 

consideration. Certain records were given particular 

attention. These included: a psychological evaluation 

conducted by Dr. Donald Weinstein on 9/13/2010 (with 

subsequent addendum), progress notes and treatment 

summary with her psychotherapist Dr. Richard Barnett, a 

psychiatric evaluation [con]ducted by Dr. Alf Bergman MD 

on 11/17/2013, clinical notes by her nurse practitioner Inder 

Sharma MSN CNS, a psychological evaluation conducted by 

Dr. Mark Querry Ph.D. on 3/8/2013, a psychological 

evaluation conducted by Dr. Eugene O'Brien Ph.D. on 

6/3/2012, and a psychological evaluation conducted by Dr. 

James Lyall Ph.D. on 6/16/2011. 

IDENTIFYING INFORMATION 
No. 16AP-107 5 

The Claimant is a 58-year-old, divorced, Caucasian woman 

who lives with a male roommate. She has 3 grown children 

who live independently. 

HISTORY 

The Claimant grew up in Akron Ohio and her parents 

divorced when she was 5. After the divorce she was reared 

primarily by her mother and only had occasional contact 

with her father. Apart from the divorce she did not recall 

suffering any other adverse childhood experiences. Her 

mother was an alcoholic but to her knowledge there was no 

family history of mental illness. However, in Dr. Weinstein's 

evaluation on 9/13/2010 she indicated her mother suffered 

with depression. Contrary to her report it appears this 

claimant grew up in a highly unfavorable family environment 

(divorced parents, alcoholic and depressed mother). 

HIGHEST EDUCATION 

The [Injured Worker] has an Associate's Degree in Nursing 

from Summa St. Thomas School of Nursing. 

* * * 

MARITAL STATUS 

The claimant was married and divorced twice. Although 

living with a man she does not consider him a romantic 

attachment. 

WORK HISTORY 

The claimant is not working at the present time and has not 

earned any taxable income since about September, 2010. She 

has filled a variety of occupations including nursing, 

banking, retail, and as a food server. Her longest period of 

employment was 4 years. She has been terminated from 

nursing positions "a number of times." According to a 

psychological evaluation conducted by Dr. Donald Weinstein 

(9/13/2010) she was released from at least one of these 

positions for insubordination. That same report indicated 

other reasons she was fired from jobs including; tardiness 

and abrasiveness with coworkers. At the time of that 

assessment she did not indicate work-related problems due 

to memory, concentration, mood, or anxiety. At the time of 

her injury in 2003 she worked as a nurse at Edwin Shaw 

Hospital. She had been working for them for approximately a 

year before her injury. She did not return to that position 
No. 16AP-107 6 

after her injury but did find employment with other 

employers. 

* * * 

HEALTH HISTORY 

The [Injured Worker] continues to experience chronic back 

pain. She experiences pain 2-3 times per week. Generally this 

pain is of moderate intensity but can become severe. 

In addition she has hypothyroidism. She had breast cancer in 

2000 and it appears she made a full recovery from that 

illness. She also had other work-related back injuries prior to 

the injury of record in 2003. She remembers filing two BWC 

claims in about the 1990's and in the 2000's. 

Her current medications include: Prozac (60mgs) for 

depression, Xanax (1mgs tid) for anxiety, Synthroid 

(0.112mgs) for her thyroid, Neurontin (400mgs hs), for 

nerve pain, Percocet (5mgs qid) for pain, and Ibuprofen 

(600mgs, prn) for pain. 

* * * 

MENTAL STATUS EXAMINATION 

The [Injured Worker] arrived on-time and was adequately 

groomed and dressed. She was oriented and understood the 

purpose of the evaluation. She cooperated fully with the 

procedure. Her mood was flat and her expression of affect 

was fairly flat as well. She ambulated without difficulty but 

once had to get up from her chair because it was becoming 

uncomfortable. Nevertheless, she did not show any outward 

expressions of pain or engage in any pain posturing. The 

[Injured Worker] has struggled with suicidal ideation in the 

past but not currently. She said her concentration is "poor." 

She stated this was a significant problem at her jobs and 

contributed to her losing positions (in fact there is no clinical 

evidence to support this). Her working memory appears 

adequate. She remembers appointments and was able to give 

details about what she had for breakfast. Based upon her 

education she appears to have at least average intelligence. 

Her abstract reasoning and fund of information are 

adequate. She manages her own financial affairs suggesting 

her judgment is adequate. 

DAILY ACTIVITIES 
No. 16AP-107 7 

She takes Xanax for sleep and when she does her sleep is 

adequate. However, her psychiatrist is attempting to cut back 

on this medication and this is causing her more anxiety and 

sleeping problems. She spends her time visiting her 

daughter, domestic chores at home, and watch[es] TV in the 

evening. She has regular social contact with other family 

members and friends. She likes gardening and was able to do 

this last summer. She is not involved in any social 

organizations and does not attend worship services. "I have 

no limitations" with regards to her physical abilities. She had 

difficulty identifying ways her anxiety and depression 

interfere with her daily functioning. With additional probing 

she did admit that sometimes it is hard for her to "push" 

herself to do things, like exercising. 

* * * 

IN RESPONSE TO THE QUESTIONS OF CONCERNS 

IN THIS IME 

Q1: Has the injured worker reached a treatment 

plateau that is static or well stabilized at which you 

can expect to fundamental, functional or 

psychological change within reasonable medical 

probability in spite of continuing medical or 

rehabilitation procedures (maximum medical 

improvement)? Include rationale for your decisions. 

A1: Yes. At this point mental health services appear 

supportive rather than rehabilitative based upon the 

psychotherapist's progress notes. These notes indicate she 

has made significant gains and cannot be expected to 

improve further. That is because this claimant has a preexisting anxiety disorder superimposed upon a personality 

disorder. This individual will feel acutely anxious as life 

problems arise (much of this anxiety has a reality basis) and 

cannot [be] considered tied to injury of record. 

Q2: Can the injured worker return to his/her former 

position of employment? If yes, are there any 

restrictions or modifications? 

A2: No, but not due to the injury of record. The claimant 

does not feel confident in her ability to return safely to 

nursing. She fears she will be fired again for problems with 

concentration, completing paperwork, and taking too long to 

perform tasks. The available clinical records does [sic] not 
No. 16AP-107 8 

support that concern though. While there is some evidence 

of impaired concentration a clinical evaluation by a 

neuropsychologist found no evidence of impaired 

concentration. Furthermore, that assessment found evidence 

Ms. McCormick may exaggerate this concern. 

The [Injured Worker] tends to externalize blame for her 

failures on the job. At one position she had a conflict with a 

supervisor but she pinned responsibility for the problem on 

the supervisor. Personality issues appear to be the primary 

reason why she cannot return into the nursing field. Clinical 

evidence indicates this [Injured Worker] had work 

performance problems unrelated to her injury. In particular, 

problems with tardiness, abrasiveness, and insubordination 

kept her from maintaining employment. She cannot return 

into nursing due to pre-existing personality problems, not 

due to sequelae related to her injury. Because she cannot 

take responsibility for her own character weaknesses she 

attributes her failures to things she thinks are beyond her 

control (e.g., problems with memory and concentration). 

Q3: Please provide a summary of any functional 

limitations solely due to the psychological 

condition(s) in this claim(s). In other words, please 

indicate the type of work the injured worker can 

perform and supportive rationale for your opinion. 

A3: As stated above in A2 this worker's limitations at this 

point are primarily the result of pre-existing personality 

weaknesses that would interfere with her work performance 

in any work setting. This includes problems with work 

tardiness, abrasiveness, and insubordination. These 

problems probably pre-existed her injury and were probably 

not exacerbated by her injury. Otherwise, there [is] no 

evidence her allowed psychological condition would interfere 

with her work performance at the present time. 

* * * 

Q7: If not MMI, when should IW be re-examined? 

A7: Ms. McCormick has reached MMI and does not need reexamination. 

(Emphasis sic.) 
No. 16AP-107 9 

{¶ 15} 6. On January 23, 2014, citing Dr. Waltman's report, the bureau moved to 

terminate TTD compensation. 

{¶ 16} 7. Following a February 14, 2014 hearing, a district hearing officer ("DHO") 

issued an order terminating TTD compensation based on the January 19, 2014 report of 

Dr. Waltman. 

{¶ 17} 8. Relator administratively appealed the DHO's order of February 14, 2014. 

{¶ 18} 9. Following a March 26, 2014 hearing, an SHO issued an order affirming 

the DHO's order of February 14, 2014. The SHO's order explains: 

It is the order of the Staff Hearing Officer that the motion 

filed by the Bureau of Workers' Compensation on 

01/23/2014 is granted to the extent of this order. 

It is the finding of the Staff Hearing Officer that this claim is 

allowed for physical disorders as well as a psychological 

disorder. The current temporary total disability 

compensation being received by the Injured Worker is 

predicated solely on the allowed psychological disorder. As 

such, the findings made herein shall he limited to the same. 

The Staff Hearing Officer finds, based on the 01/19/2014 

report of Dr. Waltman, that the allowed psychological 

disorder in this claim has reached maximum medical 

improvement. 

The Staff Hearing Officer orders that the Injured Worker's 

temporary total disability compensation with respect to the 

allowed psychological disorder in this claim is terminated 

effective 02/14/2014, the date of the District Hearing 

Officer's hearing. 

The Staff Hearing Officer finds that any temporary total 

disability compensation with respect to the allowed 

psychological disorder paid subsequent to 02/14/2014 is an 

overpayment and orders that the same be recouped pursuant 

to Ohio Revised Code section 4123.511(K). 

{¶ 19} 10. On April 28, 2015, at her own request, relator was examined by 

psychologist Raymond D. Richetta, Ph.D. In his six-page narrative report, Dr. Richetta 

opined: 
No. 16AP-107 10 

Ms. McCormick is far too agitated to work, secondary to the 

allowed Aggravation of Pre-Existing Anxiety Disorder. She 

cannot focus her attention sufficiently for even simple work 

tasks. She has insomnia too severe to allow her to be at a 

workplace on time. She would miss an unacceptable amount 

of work. She is unable to tolerate people well enough to 

relate to co-workers, supervisors, or the general public. The 

evaluation finds Jennifer McCormick permanently and 

totally disabled due to the allowed Aggravation of PreExisting Anxiety Disorder alone. 

{¶ 20} 11. On May 6, 2015, at her own request, relator was examined by Morgan 

Oberle, M.D. Dr. Oberle reported: 

The patient presents today with chronic, severe, lower back 

pain, mostly left sided, with pain into her left anterior thigh. 

Prolonged sitting or activity increase her pain. She manages 

pain with exercise and stretching as tolerated. She has 

constant swelling in her left lumbar spine and all of her 

normal ADL's are painful to perform. 

Exam: lumbar spine range of motion is poor, flexion to 40, 

extension to 5. Lumbar spine is painful to palpation with 

spasms. Left positive SLR Test noted. Hypoesthesia of the 

left lower extremity noted. Muscle strength graded 4/5 for 

the left lower extremity. Hamstrings are very tight. 

It is our opinion that Ms. McCormick is unable to work in 

any capacity. She continues to exhibit chronic, severe pain 

symptoms and has positive objective findings consistent with 

her allowed diagnosis. Her pain has not improved despite 

numerous and extensive medical intervention. 

 

This letter is to serve as our opinion that in our medical 

opinion, Jennifer McCormick should be declared 

permanently and totally disabled as a result of her injuries. 

This opinion is based solely * * * on the allowed conditions 

on the claim. 

{¶ 21} 12. On May 29, 2015, relator filed an application for PTD compensation. In 

support, relator submitted the April 28, 2015 report of Dr. Richetta and the May 6, 2015 

report of Dr. Oberle. 

{¶ 22} 13. On July 20, 2015, at the commission's request, relator was examined by 

psychologist Joseph D. Perry, Ph.D. In his nine-page narrative report, Dr. Perry opined: 
No. 16AP-107 11 

It is the examiner's opinion that based on the assessment 

results and all information available, Ms. McCormick is still 

at Maximum Medical Improvement in regard to her 

aggravation of pre-existing anxiety disorder condition. 

* * * 

The estimated Whole Person Impairment arising from her 

allowed aggravation of pre-existing anxiety disorder 

condition is estimated to be at a twenty-six (26%) level. 

* * * 

The attached Occupational Activity Assessment Form 

indicates this examiner's opinion that Ms. McCormick's 

impairments arising from her allowed aggravation of preexisting anxiety disorder condition would result in her not 

being able to work. 

(Emphasis sic.) 

{¶ 23} 13. On July 20, 2015, Dr. Perry completed a form captioned "Occupational 

Activity Assessment, Mental & Behavioral Examination." On the form, Dr. Perry 

indicated by his mark "[t]his Injured Worker is incapable of work." In the space provided, 

Dr. Perry wrote in his own hand: 

It is this examiner's advisory opinion that the mental 

limitations resulting from her allowed condition of 

aggravation of pre-existing anxiety disorder as described on 

pages 7 and 8 of the attached report would indicate that Ms. 

McCormick is incapable of work. 

{¶ 24} 14. On July 23, 2015, at the commission's request, relator was examined by 

Richard J. Reichert, M.D. In his four-page narrative report dated July 29, 2015, Dr. 

Reichert opines: 

Based on the AMA Guides to the Evaluation of 

Permanent Impairment, Fifth Edition, 2001, and 

with reference to the Industrial Commission 

Medical Examination Manual, this individual has 

evidence for 5% of Whole Person Impairment. This 

is based on assignment of DRE Lumbar Category 

II. This individual has nonverifiable radicular 

complaints without objective findings. The 
No. 16AP-107 12 

individual's sensory loss and symptoms of 

radiculopathy are nonanatomical in nature and in 

a nondermatomal distribution. Therefore the most 

appropriate assignment is Lumbar Category II. It 

is noted that this is based on the lumbar conditions 

including both the lumbar sprain/strain and 

aggravation of pre-existing degenerative disk 

disease at L4-5.

(Emphasis sic.) 

{¶ 25} 15. On July 28, 2015, Dr. Reichert completed a form captioned "Physical 

Strength Rating." On the form, Dr. Reichert indicated by his mark that relator is capable 

of "sedentary work." For further limitations, Dr. Reichert wrote in the space provided: 

"Allow alternating between sit and standing position as tolerated." 

{¶ 26} 16. Following a November 16, 2015 hearing, an SHO issued an order 

denying the PTD application. The SHO's order explains: 

The Hearing Officer finds that the Injured Worker's request 

for a finding of permanent total disability status which was 

filed on 05/29/2015, is denied. 

The Hearing Officer finds that the Injured Worker has not 

presented sufficient probative evidence to establish that she 

is permanently and totally disabled based on the medical 

documentation, and the lack of vocational rehabilitation 

efforts in file. 

 

This order is based on the medical documentation from 

Douglas Waltman, Ph.D. dated 01/19/2014. 

 

The Hearing Officer further finds that on 06/06/2003 the 

Injured Worker indicates that she was observing a patient 

trying to climb in the bed with the side rails up, she asked the 

patient to stand so she could put the guard rail down, and 

she hooked her right arm under the patient's arm and the 

patient started to get up and then went down and the Injured 

Worker was injured when she held onto the patient, trying 

not to let her fall to the floor. 

The Injured Worker has had no surgeries as a result of the 

allowed conditions in this claim, has had approximately 

$175,000 in total medical and indemnity and last received 
No. 16AP-107 13 

temporary total compensation on 02/14/2014. The Injured 

Worker has received a 38% permanent partial disability. 

The Hearing Officer finds that the Injured Worker is not to 

be considered permanently and totally disabled based on the 

physical examination from Richard Reichert, M.D., dated 

07/29/2015, and the report pursuant to the psychological 

conditions by Dr. Waltman. 

Dr. Waltman in his report dated 01/19/2014, indicates that 

based on his psychiatric examination, the Injured Worker 

has a history of problems with anxiety and depression which 

began prior to 2003. She admitted to Dr. Waltman that she 

had occasional panic attacks prior to the injury upon which 

this claim is predicated, and having panic attacks in her 20's. 

Donald Weinstein, Ph.D.'s evaluation of 2010 confirms that 

the Injured Worker's panic symptoms pre-existed the injury 

and that she also had bouts of depression following one of 

her two divorces. He also found the Injured Worker rates her 

symptoms for monetary gain. She indicated to Dr. Waltman 

that she gets hyper when she gets upset and indicated that 

she kept getting fired from employment. The doctor goes on 

to indicate that she sought medical help constantly because 

of her chronic fatigue and was sad over her second divorce. 

Dr. Waltman indicates that based on his review of an 

evaluation conducted by Alf Bergman, M.D. on 11/17/2013, 

he did not observe any type of difficulty with the Injured 

Worker's concentration or memory. In addition a 

psychological evaluation conducted by James Lyall, Ph.D., 

on 06/16/2011, indicated that it was his assessment as an 

expert in cognitive functioning that he found no evidence of 

impairments in concentration or memory. Dr. Waltman also 

indicated that a[n] examination conducted by Eugene 

O'[B]rien, M.D., in a report dated 06/03/2012, that the 

Injured Worker had met the clinical criteria of generalized 

anxiety disorder, but that said condition pre-existed her 

injury upon which this claim is predicated. Dr. Waltman in 

his evaluation indicates that it is his opinion that the Injured 

Worker had reached maximum medical improvement based 

on the fact that she has made significant gains and cannot be 

expected to improve further. Based on the fact that the 

Injured Worker had a pre-existing anxiety disorder 

superimposed upon a personality disorder, Dr. Waltman, 

asked if the Injured Worker can return to work Dr. Waltman 

indicated "no, but not due to the injury of record. Claimant 

does not feel confident in her ability to return safely to 
No. 16AP-107 14 

nursing. She feels she will be fired again for problems with 

concentration. Completing paper work[,] and taking to[o] 

long to perform tasks." In addition Dr. Waltman indicates 

"because she cannot take responsibility for her own 

character weaknesses she attributes her barriers to things 

she thinks are beyond her control (ie.) problems with 

memory and concentration." 

The doctor also indicates that the Injured Worker is an 

"individual with a pre-existing anxiety disorder who tends to 

exaggerate the extent of her symptoms for secondary gain, 

such as to receive disability benefits." In addition although 

this claim is approximately 13 years old the Injured Worker 

has not attempted any vocational rehabilitation in this 

matter. 

Dr. Reichert who indicated that he examined the Injured 

Worker for the allowed physical conditions in this claim, 

indicated that the Injured Worker had reached maximum 

medical improvement for the allowed physical conditions in 

this claim. 

He indicated that the Injured Worker had a 5% whole person 

impairment for the allowed physical condition and that the 

Injured Worker was capable of working in a sedentary type 

classification. 

The Hearing Officer finds that based on the fact that Injured 

Worker cannot be deemed permanently and totally disabled 

based totally on the allowed physical and psychological 

conditions, a discussion of the Injured Worker's non-medical 

disability factors is in order. 

The Hearing Officer finds that at this time the Injured 

Worker is receiving social security disability benefits, as of 

03/2011. 

The Injured Worker's age is 60 which indicates closely 

approaching advanced age, and is a negative factor in the 

Injured Worker obtaining entry level positions. 

The Injured Worker's education consists of going through 

the Summa St. Thomas School of Nursing and graduating as 

a registered nurse. The Hearing Officer finds that the Injured 

Worker's education is a positive factor in that the Injured 

Worker has gone through, as indicated, an RN course. 
No. 16AP-107 15 

The Hearing Officer finds that the Injured Worker's 

occupations consisted of working as a nursing home RN, 

working at a hospice center and also working as an RN case 

manager. 

The Injured Worker was a RN, used computers and as 

indicated, was a supervisor of other RN's. She also 

supervised six aides and two LPNs at a job that she did not 

list the date for, and could not remember. The Injured 

Worker's education and work experience are considered 

positive factors in her obtaining entry level positions. 

The Hearing Officer finds that based on the medical 

documentation in file from Dr. Waltman, in a report dated 

01/19/2014, analyzing the Injured Worker on the allowed 

psychological conditions and the 07/29/2015 report of Dr. 

Reichert, examining the Injured Worker for the allowed 

physical conditions, that the Injured Worker has not 

presented sufficient probative evidence to establish that she 

is permanently and totally disabled and therefore her 

application is denied. 

As indicated based on the medical documentation in file, the 

Injured Worker is not to be deemed permanently and totally 

disabled. 

{¶ 27} 17. On December 19, 2015, the three-member commission mailed an order 

denying relator's request for reconsideration of the SHO's order of November 16, 2015. 

{¶ 28} 18. On February 12, 2016, relator, Jennifer McCormick, filed this 

mandamus action. 

Conclusions of Law: 

{¶ 29} Three issues are presented: (1) is the report of Dr. Waltman some evidence 

on which the commission can rely in its adjudication of the PTD application when the 

report was generated in response to the bureau's concern over relator's continued receipt 

of TTD compensation; (2) did the commission abuse its discretion by failing to explain 

why it did not rely on the reports of Drs. Perry, Oberle, and Richetta; (3) does the SHO's 

order of November 16, 2015 comply with the command of Ohio Adm.Code 4121-3-

34(D)(3)(i) that "[t]he adjudicator shall consider whether the allowed psychiatric 
No. 16AP-107 16 

condition in combination with the allowed physical condition prevents the injured worker 

from engaging in sustained remunerative employment?" 

{¶ 30} The magistrate finds: (1) the report of Dr. Waltman is some evidence on 

which the commission can rely; (2) the commission did not abuse its discretion in failing 

to explain why it did not rely on the reports of Drs. Perry, Oberle, and Richetta; and (3) 

the SHO's order of November 16, 2015 complies with Ohio Adm.Code 4121-3-34(D)(3)(i). 

{¶ 31} Accordingly, it is the magistrate's decision that this court deny relator's 

request for a writ of mandamus, as more fully explained below. 

First Issue

{¶ 32} State ex rel. Bray v. Hamilton Fixture Co., 10th Dist. No. 05AP-821, 

2006-Ohio-4459, is dispositive. 

{¶ 33} Sharon Bray sustained physical injuries on May 30, 1997 while 

employed as a carpenter for Hamilton Fixture Company. Her industrial claim was 

additionally allowed for a psychological disorder, i.e., "adjustment disorder with 

depressed mood." Id. at ¶ 2. 

{¶ 34} Bray received TTD compensation from the bureau. On August 20, 

2001, at the bureau's request, Bray was examined by psychologist Chris H. Modrall, Ph.D. 

In his report, Dr. Modrall opined that the allowed psychological condition had reached 

maximum medical improvement ("MMI"). He also opined that Bray "could return to 

work from a purely psychological standpoint." Bray at ¶ 24. Dr. Modrall advised that she 

could return to work "on a staggered basis" where she would work "for a few hours the 

first week, one-half a day the next week and then return full-time." Id. at ¶ 24. 

{¶ 35} In September 2001, citing Dr. Modrall's report, the bureau moved to 

terminate TTD compensation. Following an October 2001 hearing, a DHO terminated 

TTD compensation based in part on Dr. Modrall's report. 

{¶ 36} In August 2002, Bray filed an application for PTD compensation. In 

support, Bray submitted a report from treating psychiatrist Thor Tangvald, M.D., who 

opined that Bray should be "considered permanently and totally disabled from returning 

to any type of employment." Id. at ¶ 26. 

{¶ 37} In October 2002, at the commission's request, Bray was examined by 

Ron M. Koppenhoefer, M.D., for the allowed physical conditions of the claim. In his 
No. 16AP-107 17 

narrative report, Dr. Koppenhoefer opined that Bray was physically "able to do 

sedentary/light duty work activities." Id. at ¶ 27. 

{¶ 38} In November 2002, at the commission's request, Bray was examined 

by psychiatrist Donald L. Brown, M.D. In his narrative report, Dr. Brown opined that 

Bray has "a Class III level of impairment. This is a moderate level of impairment." Id. at ¶ 

29. On the occupational activity assessment form, Dr. Brown indicated that Bray can 

return to her former position of employment, and can perform any sustained 

remunerative employment. Id. at ¶ 30. 

{¶ 39} The commission requested an "employability assessment report" 

from Howard L. Caston, Ph.D., a vocational expert. Id. at ¶ 32. In his report dated 

December 20, 2002, Dr. Caston opined that Bray could return to employment. Id. at ¶ 33. 

{¶ 40} Following a July 2003 hearing, an SHO issued an order denying 

Bray's PTD application. The order states reliance on the reports of Drs. Modrall, 

Koppenhoefer, and Caston. 

{¶ 41} In August 2005, Bray filed in this court a mandamus action seeking 

to vacate the commission's order and to have the commission enter an order granting the 

PTD application. 

{¶ 42} In that original action, Bray argued that the commission erred in 

relying on Dr. Modrall's report in denying PTD compensation because it was generated by 

the bureau's concern over Bray's continued entitlement to TTD compensation. 

{¶ 43} In arguing that Dr. Modrall's report must be eliminated from 

evidentiary consideration in the PTD determination, Bray relied on State ex rel. Kaska v. 

Indus. Comm., 63 Ohio St.3d 743 (1992). This court rejected Bray's argument that Kaska 

compelled elimination of Dr. Modrall's report. 

{¶ 44} Here, relator fails to cite or discuss this court's decision in Bray. However, 

the commission relied on Bray in its brief. Relator did not file a reply brief to counter the 

commission's argument that Bray is dispositive. 

{¶ 45} Clearly, Bray is dispositive of this action. 

{¶ 46} Here, as was the case in Bray, the report at issue was generated by the 

bureau's concern over the injured worker's continued entitlement to TTD compensation. 

That is, the report at issue was not prompted in either case by the filing of the PTD 
No. 16AP-107 18 

application. Thus, the situation here with respect to Dr. Waltman's report is similar to the 

situation in Bray with respect to Dr. Modrall's report. Neither the report of Dr. Modrall 

nor the report of Dr. Waltman were prepared in response to the PTD application. Just as 

in Bray, however, the report at issue here is indeed some evidence on which the 

commission can rely to deny the PTD application. 

{¶ 47} It can be noted that Dr. Waltman's report, in effect, addresses residual 

functional capacity, Ohio Adm.Code 4121-3-34(B)(4), with respect to the allowed 

psychological condition. Residual functional capacity was at issue in the PTD 

adjudication. 

{¶ 48} In his report, Dr. Waltman opines that relator's work limitations are 

primarily the result of non-allowed "personality weaknesses that would interfere with her 

work performance in any work setting." Dr. Waltman concludes "there [is] no evidence 

her allowed psychological condition would interfere with her work performance at the 

present time." 

{¶ 49} Clearly, based on the above analysis, Dr. Waltman's report does address the 

residual functional capacity issue in the PTD determination, and it was appropriate for 

the commission to rely on Dr. Waltman's report in the adjudication of the PTD 

application. 

Second Issue

{¶ 50} The second issue is whether the commission abused its discretion by failing 

to explain why it did not rely on the reports of Drs. Perry, Oberle, and Richetta. 

{¶ 51} In State ex rel. Bell v. Indus. Comm., 72 Ohio St.3d 575 (1995), the Supreme 

Court of Ohio succinctly set forth the law applicable to the second issue presented here. 

In Bell, the injured worker brought a mandamus action challenging the commission's 

denial of his PTD application. The Bell court states: 

Claimant also suggests that, henceforth, all commission 

orders be made to set forth the reasons for finding one report 

more persuasive than another. Claimant's argument, as a 

broad proposition, is weakened by State ex rel. Mitchell v. 

Robbins & Myers, Inc. (1984), 6 Ohio St.3d 481, 6 OBR 531, 

453 N.E.2d 721, and Noll, supra. Noll requires only a brief 

explanation of the commission's reasoning. Mitchell 

instructs the commission to list in its orders the evidence on 
No. 16AP-107 19 

which it relied. Moreover, later decisions have stressed that a 

reviewing court is not aided by a recitation of evidence that 

was considered but not found persuasive. See, e.g., State ex 

rel. DeMint v. Indus. Comm. (1990), 49 Ohio St.3d 19, 550 

N.E.2d 174. Logic dictates that if the identity of rejected 

evidence is irrelevant, so is the reason for rejection. 

Id. at 577-78. 

{¶ 52} In State ex rel. Lovell v. Indus. Comm., 74 Ohio St.3d 250 (1996), the 

injured worker brought a mandamus action challenging the commission's denial of his 

VSSR application. In the commission's order denying the VSSR application, the 

commission failed to mention or address his deposition testimony. The Lovell court 

states: 

Because the deposition was not included in that list, claimant 

argues that pursuant to State ex rel. Fultz v. Indus. Comm.

(1994), 69 Ohio St.3d 327, 631 N.E.2d 1057, we must assume 

that the deposition was overlooked. This is incorrect. 

State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio 

St.3d 481, 6 Ohio B. Rep. 531, 453 N.E.2d 721, directed the 

commission to cite in its orders the evidence on which it 

relied to reach its decision. Reiterating the concept of 

reliance, State ex rel. DeMint v. Indus. Comm. (1990), 49 

Ohio St.3d 19, 20, 550 N.E.2d 174, 176, held: 

"Mitchell mandates citation of only that evidence relied on. It 

does not require enumeration of all evidence considered." 

(Emphasis original.) 

Therefore, because the commission does not have to list the 

evidence considered, the presumption of regularity that 

attaches to commission proceedings (State ex rel. Brady v. 

Indus. Comm. [1990], 28 Ohio St.3d 241, 28 Ohio B. Rep. 

322, 503 N.E.2d 173) gives rise to a second presumption--

that the commission indeed considered all the evidence 

before it. That presumption, however, is not irrebuttable as 

Fultz demonstrates. 

Id. at 252 

{¶ 53} As earlier noted, at the commission's request, relator was examined by 

psychologist Dr. Perry, who opined that relator is incapable of work. 
No. 16AP-107 20 

{¶ 54} As earlier noted, at relator's own request, she was examined by Dr. Oberle 

who opined that relator "should be declared permanently and totally disabled as a result 

of her injuries." 

{¶ 55} As earlier noted, at relator's own request, she was examined by psychologist 

Dr. Richetta, who opined that relator is "permanently and totally disabled due to the 

allowed aggravation of Pre-Existing Anxiety Disorder alone." 

{¶ 56} Obviously, the reports of Drs. Perry, Oberle, and Richetta were favorable to 

relator's PTD application. Moreover, Dr. Perry was asked by the commission to examine 

relator. 

{¶ 57} As earlier noted, the SHO's order of November 16, 2015 relied exclusively on 

the reports of Drs. Waltman and Reichert in determining residual functional capacity. 

The order does not mention the reports of Drs. Perry, Oberle, or Richetta. Without 

citation to authority, relator contends that the commission abused its discretion in failing 

to address the reports of Drs. Perry, Oberle, and Richetta. As relator puts it, the 

commission "abused its discretion by ignoring the report of its own doctor." (Relator's 

Brief at 17.) 

{¶ 58} There is no evidence in the record to show that the commission failed to 

consider or ignored the report of its own doctor or, for that matter, that it failed to 

consider the reports of Drs. Oberle and Richetta. The commission's order at issue is 

entitled to the presumption of regularity explained by the court in Lovell.

{¶ 59} Accordingly, based on the above analysis, the magistrate concludes that the 

commission did not abuse its discretion in failing to explain why it did not rely on the 

reports of Drs. Perry, Oberle, or Richetta. 

Third Issue

{¶ 60} The third issue is whether the SHO's order of November 16, 2015 complies 

with Ohio Adm.Code 4121-3-34(D)(3)(i), which provides: 

In claims in which a psychiatric condition has been allowed 

and the injured worker retains the physical ability to engage 

in some sustained remunerative employment, the 

adjudicator shall consider whether the allowed psychiatric 

condition in combination with the allowed physical condition 

prevents the injured worker from engaging in sustained 

remunerative employment. 
No. 16AP-107 21 

{¶ 61} In State ex rel. Guy v. Indus. Comm., 10th Dist. No. 08AP-711, 2009-Ohio2553, this court had occasion to interpret Ohio Adm.Code 4121-3-34(D)(3)(i). This court 

stated: 

In the end, relator's contentions invoke the formerly 

required "combined effects" review that arose when the 

claimant presented both physical and psychological 

dimensions in a request for disability compensation. Under 

such a review, typically a single doctor assessed a claimant's 

ability in light of the combined effects of the allowed physical 

and psychological conditions. Ohio Adm.Code 4121-3-

34(D)(3)(i) does not require a "combined effects" review, but 

rather that the conditions be considered in combination. 

Id. at ¶ 8. 

{¶ 62} Although not cited by this court's decision in Guy, a historical discussion of 

the combined-effect rule set forth in State ex rel. Anderson v. Indus. Comm., 62 Ohio 

St.2d 166 (1980), can be found in State ex rel. Rouch v. Eagle Tool & Machine Co., 26 

Ohio St.3d 197 (1986). 

{¶ 63} Clearly, as this court indicates in Guy, Ohio Adm.Code 4121-3-34(D)(3)(i), 

cannot be viewed as a return to the Anderson combined-effect rule. 

{¶ 64} Here, the Hearing Officer's order of November 16, 2015 indicates reliance 

on the report of Dr. Waltman who examined solely for the allowed psychiatric or 

psychological condition and the report of Dr. Reichert who examined only for the allowed 

physical conditions of the claim. The SHO indicates that, based on Dr. Reichert's report 

on the physical conditions, relator is "capable of working in a sedentary type 

classification." Also, as indicated earlier, Dr. Waltman concluded in his report: 

[T]his worker's limitations at this point are primarily the 

result of pre-existing personality weaknesses that would 

interfere with her work performance in any work setting. 

This includes problems with work tardiness, abrasiveness, 

and insubordination. These problems probably pre-existed 

her injury and were probably not exacerbated by her injury. 

Otherwise, there [is] no evidence her allowed psychological 

condition would interfere with her work performance at the 

present time. 
No. 16AP-107 22 

{¶ 65} The SHO's order indicates reliance on the reports of Drs. Waltman and 

Reichert in determining residual functional capacity. The SHO determined that the 

physical and psychiatric conditions of the claim permit sustained remunerative 

employment. 

{¶ 66} The SHO's order states: 

The Hearing Officer finds that based on the fact that Injured 

Worker cannot be deemed permanently and totally disabled 

based totally on the allowed physical and psychological 

conditions, a discussion of the Injured Worker's non-medical 

disability factors is in order. 

{¶ 67} Thus, the SHO's order of November 16, 2015 complies with Ohio Adm.Code 

4121-3-34(D)(3)(i). Guy. 

{¶ 68} 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).