[Cite as State ex rel. Martin v. Springfield Twp., 2014-Ohio-1186.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. : 

James M. Martin, 

 : 

 Relator, 

 : No. 13AP-305 

v. 

 : (REGULAR CALENDAR) 

Springfield Township and 

Industrial Commission of : 

Ohio, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on March 25, 2014 

 

Law Office of James A. Whittaker, LLC, Laura I. Murphy 

and James A. Whittaker, for relator. 

Michael DeWine, Attorney General, and Naveen v. 

Ramprasad, for respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

KLATT, J. 

{¶ 1} Relator, James M. Martin, commenced this original action in mandamus 

seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), 

to vacate its order denying relator permanent total disability ("PTD") compensation, and 

to enter an order granting said compensation. 
No. 13AP-305 2 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of 

Appeals, we referred this matter to a magistrate who issued a decision including findings 

of fact and conclusions of law, which is appended hereto. The magistrate found that the 

commission abused its discretion and misapplied Ohio Adm.Code 4121-3-34(D)(1)(f) 

when it denied relator's application for PTD compensation solely because relator had 

other allowed claims that had not reached maximum medical improvement ("MMI"). 

Relying upon this court's decision in State ex rel. Ferrell v. Indus. Comm., 10th Dist. No. 

04AP-948, 2005-Ohio-3100, the magistrate determined that relator is entitled to have his 

PTD application (which is based solely on an allowed psychological claim) adjudicated 

even though relator also has allowed physical conditions that undisputedly have not 

reached MMI and are the basis of his current receipt of TTD compensation. Therefore, 

the magistrate has recommended that we grant a limited writ ordering the commission to 

vacate its March 5, 2013 order that denies relator's PTD application, and to enter an order 

consistent with the magistrate's decision that either grants or denies the PTD application. 

{¶ 3} The commission has filed objections to the magistrate's decision arguing 

that the magistrate erred in concluding that the commission acted contrary to law. We 

disagree. 

{¶ 4} The commission argues that, as a matter of law, a claimant is not entitled to 

PTD on any allowed condition if there are other allowed conditions that have not reached 

MMI. The commission principally relies upon State ex rel. Johnson v. Indus. Comm., 

10th Dist. No. 05AP-1187, 2006-Ohio-5091, to support its argument. However, we find 

Johnson unpersuasive because it did not address the issue presented in the case at bar. 

{¶ 5} Although Johnson involved facts similar to those presented here, the issue 

raised by the relator involved the application of res judicata and/or the commission's 
No. 13AP-305 3 

exercise of continuing jurisdiction when the commission previously terminated TTD 

based on a finding that the allowed claims had reached MMI and then, based on 

additional medical evidence, later found some of the allowed claims had not reached MMI 

in adjudicating a subsequent application for PTD. Johnson simply did not address the 

legal issue presented here. 

{¶ 6} We also find unpersuasive the commission's attempt to distinguish Ferrell. 

In Ferrell, this court held that a claimant is entitled to have a PTD application based upon 

an allowed physical claim adjudicated on its merits even though the claimant has an 

allowed psychological claim that is not at MMI. The commission correctly points out that, 

in Ferrell, the claimant filed for PTD based only the allowed physical conditions, all of 

which had reached MMI, and did not include in his application the allowed psychological 

claim, which had not reached MMI. However, those facts played no role in the court's 

legal analysis. Instead, the Ferrell court flatly rejected the assertion that Ohio Adm.Code 

4121-3-34(D)(1)(f) requires the denial of PTD if any allowed condition has not reached 

MMI. To the contrary, the Ferrell court held that a claimant who has multiple allowed 

conditions is not required to show that each condition, standing alone, is work 

prohibitive. Therefore, the claimant in Ferrell could not be denied PTD based upon his 

allowed physical claim solely because his psychological claim had not reached MMI. 

{¶ 7} Based upon the holding in Ferrell, we agree with the magistrate's legal 

analysis. Therefore, we overrule the commission's objections. 

{¶ 8} Following an independent review of this matter, we find that the magistrate 

has properly determined the facts and applied the appropriate law. Therefore, we adopt 

the magistrate's decision as our own, including the findings of fact and conclusions of law 

contained therein. In accordance with the magistrate's decision, we grant a limited writ 
No. 13AP-305 4 

and order the commission to vacate its March 5, 2013 order that denies relator's PTD 

application, and to enter an order consistent with this decision that either grants or denies 

relator's PTD application. 

Objections overruled; limited writ of mandamus granted.

CONNOR and T. BRYANT, JJ., concur. 

T. BRYANT, J., retired, of the Third Appellate District, 

assigned to active duty under authority of Ohio Constitution, 

Article IV, Section 6(C). 

 
No. 13AP-305 5 

APPENDIX

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. : 

James M. Martin, 

 : 

 Relator, 

 : No. 13AP-305 

v. 

 : (REGULAR CALENDAR) 

Springfield Township and 

Industrial Commission of : 

Ohio, 

 : 

 Respondents. 

 : 

 

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

Rendered on December 20, 2013 

 

Law Office of James A. Whittaker, LLC, Laura I. Murphy 

and James A. Whittaker, for relator. 

Michael DeWine, Attorney General, and Naveen v. 

Ramprasad, for respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

{¶ 9} In this original action, relator, James M. Martin, requests a writ of 

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

the March 5, 2013 order of its staff hearing officer ("SHO") that denied him permanent 

total disability ("PTD") compensation for his allowed post-traumatic stress disorder 

("PTSD") on grounds that allowed physical conditions of another industrial claim have 

not reached maximum medical improvement ("MMI"), and to enter an order granting 

PTD compensation based upon the PTSD. 
No. 13AP-305 6 

Findings of Fact: 

{¶ 10} 1. This is the second mandamus action relator has filed in regard to his PTD 

application, filed April 20, 2010. In the first action, this court issued a writ that resulted 

in the SHO's order at issue here. 

{¶ 11} 2. Relator has two industrial claims arising out of his employment as a 

police officer with respondent Springfield Township, a state-fund employer. 

{¶ 12} 3. Claim No. 97-319655 arises from an injury that occurred January 20, 

1997. The claim is allowed for several injuries to the right knee, right leg, and right hip. 

The claim is also allowed for a psychiatric condition described as "prolong post traumatic 

stress." 

{¶ 13} 4. Claim No. 97-489866 arises from an injury that occurred August 5, 1997. 

This claim is allowed for several injuries to the right and left knees and to the lumbar area. 

There are no psychiatric conditions allowed in this claim. 

{¶ 14} 5. On April 19, 2010, at relator's request, treating psychologist William C. 

Melchior, Ed.D., opined in a two-page report: 

[G]iven the extent and ongoing nature of Mr. Martin's PSTD 

[sic], it is this psychologist's opinion that Mr. Martin is 

determined to be permanently and totally disabled from 

work. 

{¶ 15} 6. On April 21, 2010, at relator's request, treating chiropractor Dan 

Buchanan, D.C., opined: 

Based on Mr. Martin's history, his subjective complaints, his 

physical exam findings, and his current level of function, and 

based solely on the allowed diagnoses in his claim; I am of 

the opinion with a reasonable degree of medical certainty 

that Mr. Martin is permanently and totally disable [sic] from 

any forms of sustained remunerative employment. 

{¶ 16} 7. Earlier, on April 20, 2010, relator filed an application for PTD 

compensation. In support, relator submitted the Melchior and Buchanan reports. 

{¶ 17} 8. On May 25, 2010, at the commission's request, relator was examined by 

Donald J. Tosi, Ph.D. In his eight-page narrative report, Dr. Tosi concluded: 

Specific to PTSD, the Injured Worker is able to return to his 

former position of employment without limitations. 

 
No. 13AP-305 7 

{¶ 18} 9. Earlier in his report, Dr. Tosi opined: 

He would function best under normal to moderate stress 

conditions with work tasks that are simple to moderate in 

complexity. 

* * * 

The Injured Worker is able to sustain focus and attention 

long enough to permit completion of tasks in a low to 

moderate stress work environment. 

{¶ 19} 10. On May 29, 2010, Dr. Tosi completed a form captioned "Occupational 

Activity Assessment[,] Mental & Behavioral Examination." On the form, Dr. Tosi 

indicated by his mark: "This Injured Worker has no work limitations." 

{¶ 20} 11. On May 26, 2010, at the commission's request, relator was examined by 

Ron M. Koppenhoefer, M.D. In his seven-page narrative report, Dr. Koppenhoefer 

opined: 

The combined values chart would indicate that he has a total 

of a 36% impairment to the body as a whole. 

Based on my examination and review of the medical records, 

it is my medical opinion that Mr. Martin is limited to 

sedentary work activities at this time based on the allowed 

conditions in these claims. 

{¶ 21} 12. On May 26, 2010, Dr. Koppenhoefer completed a Physical Strength 

Rating form. On the form, Dr. Koppenhoefer indicated by his mark that relator is capable 

of sedentary work. 

{¶ 22} 13. Following an October 5, 2010 hearing, an SHO issued an order denying 

the PTD application. In his order, the SHO relied upon reports from Drs. Koppenhoefer 

and Tosi in determining residual functional capacity. In that regard, the SHO concluded: 

The Staff Hearing Officer finds that the capabilities listed by 

Dr. Koppenhoefer and Dr. Tosi are the capabilities the 

Injured Worker has as a result of the recognized orthopedic 

and psychological conditions in the claim. 

Then the SHO addressed the non-medical factors. The SHO concluded that relator is 

able to engage in sustained remunerative employment. 
No. 13AP-305 8 

{¶ 23} 14. On March 15, 2011, relator filed in this court a mandamus action that 

was assigned case No. 11AP-252. The action was assigned to a court magistrate who 

issued his Magistrate's Decision on December 28, 2011. In his decision, the magistrate 

found that the report of Dr. Tosi is so internally inconsistent that it must be eliminated 

from evidentiary consideration. 

{¶ 24} 15. On June 29, 2012, this court issued its Decision and Judgment Entry. 

In its decision, this court adopted the magistrate's decision, including the findings of fact 

and conclusions of law. This court granted a writ of mandamus ordering the commission 

to vacate the October 5, 2010 order of its SHO and, in a manner consistent with the 

magistrate's decision, enter a new order that adjudicates the PTD application. State ex 

rel. Martin v. Indus. Comm., 10th Dist. No. 11AP-252, 2012-Ohio-2984. 

{¶ 25} 16. On August 30, 2012, the Ohio Bureau of Workers' Compensation 

("bureau") mailed an order awarding temporary total disability ("TTD") compensation 

starting June 20, 2012 in industrial claim No. 97-489866. The bureau's decision was 

based on: 

The physician file review completed by Dr. Stewart on 

8/18/12, the C84 submitted by the injured worker and the 

Medco14s submitted by Dr. Paley. 

{¶ 26} 17. Apparently, the bureau's August 30, 2012 order was not 

administratively appealed. 

{¶ 27} 18. On September 11, 2012, relator underwent left knee surgery performed 

by Jonathan Paley, M.D. The surgical procedure is described in an operative report from 

Dr. Paley: 

[One] Videoarthroscopy of the left knee with chondroplasty, 

medial femoral condyle 

[Two] Debridement of residuals of medial meniscus tear 

[Three] Debridement of lateral meniscus tear 

{¶ 28} 19. On October 6, 2012, an SHO mailed an order acknowledging this court's 

writ of mandamus in case No. 11AP-252. The SHO's order instructs: 

Therefore, in accordance with the Writ, it is ordered that the 

Staff Hearing Officer order dated 10/05/2010, findings 

mailed 10/07/2010, which denied the claimant's IC-2 

Application for Permanent Total Disability Compensation 

filed on 04/20/2010, be vacated. 
No. 13AP-305 9 

It is ordered that the claim be referred to the Medical 

Services Department of the Industrial Commission to 

arrange a new examination of the Injured Worker on the 

allowed psychological conditions in the claim. The 

examining psychologist shall conduct an examination of the 

claimant and shall issue a report concerning the issue of 

whether claimant is permanently and totally disabled as a 

result of the allowed psychological conditions in this claim. It 

is ordered that after the psychological examination and the 

issuance of the report, the claim shall be referred to the 

Hearing Administrator to schedule a hearing de novo before 

a Staff Hearing Officer to determine the merits of the 

Application of Permanent Total Disability Compensation 

filed on 04/20/2010. 

In the de novo hearing, the Staff Hearing Officer shall 

adjudicate the Application for Permanent Total Disability 

Compensation filed on 04/20/2010, after considering the 

new psychological report concerning the issue of whether 

claimant is Permanently and Totally Disabled as a result of 

the allowed psychological conditions in the claim, and all 

other evidence related to the IC-2 Application filed on 

04/20/2010. In addition, it is ordered that the psychological 

report of Dr. Donald Tosi, dated 06/02/2010, shall not be 

considered in adjudicating the claimant's IC-2 Application 

for Permanent Total Disability Compensation filed on 

04/20/2012. 

The Staff Hearing Officer shall issue an order which either 

grants or denies the Application for Permanent Total 

Disability Compensation filed on 04/20/2010, cite the 

evidence which is the basis for the decision and, provide an 

explanation for the decision in accordance with State ex rel. 

Mitchell v. Robins & Myers, Inc. (1984), 6 Ohio St.3d 481 

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

203. 

{¶ 29} 20. On November 2, 2012, at the commission's request, relator was 

examined by clinical psychologist Norman L. Berg, Ph.D. In his eight-page narrative 

report, Dr. Berg opined: 

These are my responses in regard to the specific questions 

posed by the Industrial Commission. In my opinion, the 

injured worker has reached maximum medical improvement 

(MMI) in regard to allowed condition of "Prolonged PostTraumatic Stress." This is based on the fact that claimant 
No. 13AP-305 10 

suffered his industrial injury approximately 15 years ago, he 

continues to exhibit classic symptoms of condition of PTSD, 

and he continues to exhibit such symptoms even though he 

has been involved in mental health treatment (counseling 

and medication) for several years. Based on the AMA Guides, 

2nd and 5th Editions, and with reference to the Industrial 

Commission Medical Examination Manual I rate this 

claimant as having 65% permanent impairment based on 

allowed condition of "Prolonged Post Traumatic Stress." 

Ongoing mental health treatment (counseling and 

medication) appears necessary for maintenance purposes. 

In regard to activities of daily living, claimant is rated as 

having Class 2, mild impairment, in that symptoms of PTSD 

at times reduce his motivation to engage in these routine 

activities. He does attend to his personal hygiene needs but 

does so with pain. The pain then reminds him of the 

situation in which caused his injuries and the related 

condition of PTSD. 

In regard to social functioning, claimant is rated as having 

Class 4, marked impairment, in that symptoms of PTSD 

result in his either withdrawing from social situations or 

becoming hyper vigilant, angry, and having a tendency to 

become confrontational. 

In regard to concentration, persistence, and pace for task 

completion, claimant is rated as having Class 4, marked 

impairment. Claimant's symptoms of PTSD including 

intrusive thoughts of the event which cause these symptoms 

result in claimant at times having difficulty with 

concentration and in being persistent. 

In regard to claimant's adaption to the work place, claimant 

is rated as having Class 4, marked impairment. Claimant 

prefers not to be around others, he does not trust others, and 

he either withdraws or becomes angry, hyper vigilant, 

suspicious, and has feelings of becoming confrontational. 

{¶ 30} 21. On November 2, 2012, Dr. Berg completed a form captioned 

"Occupational Activity Assessment[,] Mental & Behavioral Examination." On the form, 

Dr. Berg indicated by his mark: "This Injured Worker is incapable of work." 

{¶ 31} 22. On November 29, 2012, an SHO mailed a tentative order awarding PTD 

compensation starting April 19, 2010. The tentative order explains: 
No. 13AP-305 11 

It is the finding of the Staff Hearing Officer that the Injured 

Worker's condition has become permanent and that he is 

unable to return to his former position of a police officer as a 

result of the allowed conditions in claim 97-319655. 

Dr. Melchior, Injured Worker's Psychologist, opined in a 

report dated 04/19/2010 that the Injured Worker is 

permanently and totally disabled from work due to the 

allowed condition of Prolonged Post Traumatic Stress 

Disorder. The Staff Hearing Officer notes that this condition 

is allowed in claim 97-319655. Dr. Melchior opined that the 

Injured Worker is unable to engage in sustained 

remunerative employment based upon this condition of 

Prolonged Post Traumatic Stress Disorder. 

Dr. Norman Berg, Clinical Psychologist, examined the 

Injured Worker at the request of the Industrial Commission 

on 11/02/2012. Dr. Berg opined that the Injured Worker is 

incapable of work based on the allowed condition of 

Prolonged Post Traumatic Stress Disorder. Dr. Berg opined 

that the Injured Worker has the below - listed limitations 

based on the impairments arising from the allowed condition 

of "Prolonged Post Traumatic Stress Disorder": the Injured 

Worker would have moderate limitations in his ability to 

understand, remember and follow direction. The Injured 

Worker would have marked limitations in his ability to 

maintain attention, concentration and pace in a work setting. 

The Injured Worker would have marked limitations in his 

ability to relate to others in a work setting. Dr. Berg opined 

that in this area his limitations would be marked to extreme. 

Dr. Berg further opined that the Injured Worker would have 

marked limitations in his ability to cope with routine job 

stress. Dr. Berg opined that the Injured Worker is 

permanently and totally disabled based upon the allowed 

condition of Prolonged Post Traumatic Stress Disorder 

allowed in claim number 97-319655. 

The Staff Hearing Officer finds based upon the medical 

evidence alone of Dr. Melchior and Dr. Berg that the Injured 

Worker is unable to engage in sustained remunerative 

employment and is permanently and totally disabled. 

The Staff Hearing Officer finds that the Injured Worker's 

Application for Permanent and Total Disability 

Compensation filed 04/20/2010 is granted. 
No. 13AP-305 12 

The Staff Hearing Officer finds that the appropriate start 

date of Permanent and Total Disability Compensation is 

04/19/2010, the date of the medical report of Dr. Melchior. 

The Staff Hearing Officer finds that 100% of the award of 

Permanent and Total Disability Compensation is to be made 

in claim 97-319655. 

The Staff Hearing Officer finds that 0% of the award of 

Permanent and Total Disability Compensation is made in 

claim 97-489866. 

This order is based on the medical report of Dr. Melchior 

dated 04/19/2010 and the medical report of Dr. Berg dated 

11/02/2012. 

{¶ 32} 23. On December 3, 2012, on a Medco-14, Dr. Paley certified TTD 

beginning December 8, 2012 to February 18, 2013. 

{¶ 33} 24. On December 4, 2012, the bureau timely objected to the November 29, 

2012 tentative order. 

{¶ 34} 25. On February 13, 2013, relator underwent a "[r]evision right total knee" 

performed by Dr. Paley. 

{¶ 35} 26. On March 20, 2013, on a Medco-14, Dr. Paley certified TTD beginning 

February 18, 2013. On March 28, 2013, Dr. Paley extended the disability period to June 7, 

2013. 

{¶ 36} 27. Earlier, on March 5, 2013, an SHO heard the PTD application filed 

April 20, 2010. Thereafter, on March 12, 2013, the SHO mailed an order denying the PTD 

application. The SHO's order explains: 

The Hearing Officer specifically finds that permanent and 

total disability compensation is to be denied as some of the 

allowed medical conditions are still temporary and have not 

reached maximum medical improvement. In coming to this 

conclusion, the Hearing Officer relies on Ohio Admin. Code 

4121-3-34(D) (1) (f) which states "If, after hearing, the 

adjudicator finds that the Injured Worker's allowed medical 

condition(s) is temporary and has not reached maximum 

medical improvement, the Injured Worker [sic] shall be 

found not to be permanently and totally disabled because the 

conditions [sic] remains temporary." 
No. 13AP-305 13 

In the present claim, the Hearing Officer finds that the 

Injured Worker is currently receiving temporary total 

disability compensation in claim number 97-489866. The 

Hearing Officer finds that the Injured Worker is currently 

receiving temporary total disability compensation as of 

06/20/2012 per Bureau of Workers' Compensation order 

dated 08/30/2012. The Hearing Officer notes that the 

Injured Worker underwent surgery on 09/11/2012 for 

treatment of the allowed conditions in claim 97-489866 

including the conditions of tear anterior cruciate ligament 

left knee, tear medial meniscus and bicompartmental 

degenerative arthritis left knee. The Hearing Officer further 

finds that the Injured Worker underwent a total revision of 

the right knee on 02/13/2013 for treatment of the allowed 

right knee conditions in claim 97-489866. The Injured 

Worker has been certified to be temporarily and totally 

disabled per Dr. Paley through 02/18/2013 per MEDCO-14 

completed by Dr. Paley dated 12/03/2012. 

The Hearing Officer finds that as the allowed conditions in 

claim 97-489866 are still temporary and have not reached 

maximum medical improvement, the Hearing Officer denies 

the Injured Worker's application for permanent and total 

disability compensation filed 04/20/2010. 

Further, the Hearing Officer vacates the Industrial 

Commission tentative order issued 11/29/2012. 

The Hearing Officer relies on the Bureau of Workers' 

Compensation order dated 08/30/2012, the MEDCO-14 

completed by Dr. Paley dated 12/03/2012, the surgery report 

completed by Dr. Paley dated 02/13/2013 and the surgery 

report completed by Dr. Paley dated 09/11/2012. 

{¶ 37} 28. On April 5, 2013, the three-member commission, on a two-to-one vote, 

denied relator's request for reconsideration. 

{¶ 38} 29. On April 10, 2013, relator, James M. Martin, filed this mandamus 

action. 

Conclusions of Law: 

{¶ 39} The issue is whether the commission, through its SHO's order of March 5, 

2013, misapplied Ohio Adm.Code 4121-3-34(D)(1)(f) when it denied the PTD application 

on grounds that some of the allowed conditions in claim No. 97-489866 have not reached 

MMI and relator is currently receiving TTD compensation for a disability associated with 
No. 13AP-305 14 

those allowed conditions. That is, the commission refused to determine whether relator is 

PTD based solely upon his allowed PTSD. 

{¶ 40} Finding that the commission misapplied Ohio Adm.Code 4121-3-34(D)(1)(f) 

in denying the PTD application and refusing to determine whether relator is PTD based 

solely upon his allowed PTSD, it is the magistrate's decision that this court issue a writ of 

mandamus, as more fully explained below. 

{¶ 41} Ohio Adm.Code 4121-3-34 sets forth the commission's rules applicable to 

the adjudication of PTD applications. 

{¶ 42} Ohio Adm.Code 4121-3-34(D) sets forth the commission's guidelines for 

adjudication of PTD applications. 

Ohio Adm.Code 4121-3-34(D)(1)(f) provides: 

If, after hearing, the adjudicator finds that the injured 

worker's allowed medical condition(s) is temporary and has 

not reached maximum medical improvement, the injured 

worker shall be found not to be permanently and totally 

disabled because the condition remains temporary. 

{¶ 43} Pertinent to the analysis here is the rationale explained in State ex rel. 

Galion Mfg. Div. Dresser Industries, Inc. v. Haygood, 60 Ohio St.3d 38, 40 (1991), 

wherein the court states: 

Contrary to Dresser's suggestion, a claimant who has 

multiple allowed conditions is not required to show that each 

condition, standing alone, is work-prohibitive. 

{¶ 44} In Galion, the commission awarded the claimant PTD compensation based 

upon the reports of Drs. Retter and Lyons. Dr. Retter found that the claimant was 

permanently and totally disabled due to the physical conditions of the claim. Dr. Lyons, a 

psychologist, concluded that the claimant could not engage in sustained remunerative 

employment, but stated that "[p]rognosis for improvement through treatment is 

encouraging." In mandamus, the employer challenged the report of Dr. Lyons, but did 

not challenge the reports of Dr. Retter. The writ was denied on grounds that Dr. Retter's 

reports were some evidence supporting the PTD compensation. 

{¶ 45} In State ex rel. Ferrell v. Indus. Comm., 10th Dist. No. 04AP-948, 2005-

Ohio-3100, this court had occasion to limit the scope of Ohio Adm.Code 4121-3-

34(D)(1)(f) based upon the Galion rationale. 
No. 13AP-305 15 

{¶ 46} Thomas A. Ferrell was injured while employed as a truck driver. His 

industrial claim was allowed for various physical injuries. His claim was also allowed for 

"depressive disorder nec; generalized anxiety disorder." Id. at ¶ 10. 

{¶ 47} In August 2003, the commission determined that all of Ferrell's allowed 

physical conditions had reached MMI, but TTD was ordered to continue based upon the 

allowed psychological conditions. 

{¶ 48} In October 2003, Ferrell applied for PTD compensation. In support, he 

submitted reports from his treating chiropractor, Gregory Richards. In two reports, Dr. 

Richards opined that the allowed physical conditions produced "total and permanent 

disablement." Id. at ¶ 17. 

{¶ 49} In February 2004, at the commission's request, Ferrell was examined by 

James Rutherford, M.D. Dr. Rutherford opined that Ferrell "is not capable of physical 

work activity." Id. at ¶ 18. 

{¶ 50} Also in February 2004, at the commission's request, Ferrell was examined 

by psychologist Earl F. Greer, Jr., Ed.D. Dr. Greer opined that the allowed 

psychological/psychiatric conditions had not reached MMI. 

{¶ 51} In April 2004, a commission SHO mailed a tentative order finding that 

Ferrell was PTD based upon the reports of Drs. Richards and Rutherford. 

{¶ 52} Following the employer's objection to the tentative order, the SHO heard 

the matter in July 2004. The SHO vacated the tentative order and denied the PTD 

application. The SHO relied upon Dr. Greer's report, Ferrell's continued receipt of TTD 

compensation, and Ohio Adm.Code 4121-3-34(D)(1)(f). 

{¶ 53} Ferrell then filed in this court a mandamus action challenging the 

commission's denial of his PTD compensation even though he was receiving TTD 

compensation from his allowed psychological/psychiatric conditions. 

{¶ 54} This court granted a limited writ ordering the commission to vacate its 

order denying the PTD application and to issue a new order that redetermines the PTD 

application consistent with this court's decision. 

{¶ 55} In granting the writ, this court relied upon the Galion rationale to narrow 

the commission's interpretation of Ohio Adm.Code 4121-3-34(D)(1)(f). 
No. 13AP-305 16 

{¶ 56} This court's decision in Ferrell compels the issuance of a limited writ in this 

action. While relator has allowed physical conditions that undisputedly have not reached 

MMI and are the basis of his current receipt of TTD compensation, the recent report of 

Dr. Berg, if found persuasive, would support an award of PTD based solely upon the 

allowed PTSD. 

{¶ 57} Here, the commission has, in effect, refused to adjudicate relator's claim 

that his PTSD alone produces PTD. The commission's refusal to adjudicate the PTD claim 

here that is based upon the allowed psychological condition is similar to the commission's 

refusal to adjudicate the PTD claim in Ferrell that was based upon allowed physical 

conditions. In both cases, the commission has improperly used allowed conditions that 

have not reached MMI as a basis for denial of PTD compensation premised upon one or 

more allowed conditions that are at MMI. 

{¶ 58} Accordingly, it is the magistrate's decision that this court issue a writ of 

mandamus ordering the commission to vacate the March 5, 2013 order of its SHO that 

denies relator's PTD application, and to enter an order consistent with this magistrate's 

decision that either grants or denies the application. 

/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).