State ex rel. Bergen v. Northgate Masonry, Inc., 2016 Ohio 7705

Background

Mark Bergen suffered a significant work-related lumbar injury in 2000 and underwent multiple spinal surgeries and pain-management procedures. He last worked in 2004.
Bergen filed a first PTD application in January 2011; a Staff Hearing Officer (SHO) denied it in June 2011, finding he could perform sedentary work and had not shown medical inability to participate in vocational rehabilitation.
Bergen was referred for vocational rehabilitation in July 2012; the MCO and the BWC closed the file in September 2012 because there were no physician-documented job restrictions dated within 180 days of the referral.
Bergen filed a second PTD application in November 2014, submitting psychiatric and physical IME reports (one physician opined Bergen was incapable of work; another found limited, part-time capacity).
On March 18, 2015 the SHO denied the second PTD application, finding Bergen had voluntarily removed himself from the workforce (citing prior findings he could perform sedentary work and his failure to pursue/submit timely medical evidence for vocational rehabilitation). Bergen sought a writ of mandamus; the magistrate and the appellate panel denied relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the commission complied with OAC 4121-3-34(D)(1)(d) when finding voluntary workforce removal	Bergen: SHO failed to identify/consider medical evidence of Bergen's condition "at or near" the time of removal and thus did not satisfy Mitchell requirements	Commission: prior SHO order (2011) found Bergen capable of sedentary work; Bergen did not present contemporaneous treating-physician evidence at/near removal to rebut that finding	Held: Commission satisfied rule; Bergen failed to present medical evidence at/near removal; objection overruled
Whether Bergen presented treating-physician medical evidence of physical capacity between 2004–2014	Bergen: treating physicians (e.g., Dr. Stambough) showed inability to work and should have been considered	Commission: the treating-physician records cited were not contemporaneous to relevant referrals/hearings or not in the file; the record lacks treating-physician restrictions within required timeframes	Held: Bergen did not submit contemporaneous treating-physician evidence for the relevant periods; objection overruled
Whether there was medical evidence Bergen was medically unable to participate in vocational rehabilitation in 2012	Bergen: MCO notes and some reports indicate he was not medically stable to participate	Commission: governing rule (OAC 4123-18-03(C)(3)(d)) requires physician-documented restrictions dated within 180 days of referral; available records were older than 180 days or showed no recent restrictions	Held: The 2010 reports were too old to satisfy the 180-day requirement and the 2012 MCO screening found no documented restrictions within 180 days; objection overruled
Whether the commission abused its discretion in denying PTD and mandamus is warranted	Bergen: cumulative medical evidence shows permanent inability to work; commission failed to consider relevant evidence	Commission: record contains some evidence (Dr. Freeman IME, rehabilitation closure reasons, lack of recent restrictions, Bergen's failure to pursue rehabilitation) to support finding of capacity and voluntary removal; denial not an abuse	Held: No abuse of discretion; mandamus denied

Key Cases Cited

State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481 (1983) (adjudicator must specify what evidence was relied upon in denying PTD).
State ex rel. Cunningham v. Indus. Comm., 91 Ohio St.3d 261 (2001) (commission may consider potential for retraining and development of new job skills).
State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991) (commission must state evidence relied on and briefly explain reasoning).
State ex rel. Domjancic v. Indus. Comm., 69 Ohio St.3d 693 (1994) (PTD inquiry focuses on ability to do any sustained remunerative employment).
State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987) (commission considers medical and non-medical factors—age, education, work history—in PTD analysis).
State ex rel. Gay v. Mihm, 68 Ohio St.3d 315 (1994) (medical capacity is not dispositive if non-medical factors permit employability).
State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983) (mandamus standards).
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967) (mandamus remedy against commission requires proof of abuse of discretion).
State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986) (mandamus relief only where there is no evidence supporting commission's order).
State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987) (some evidence standard defeats mandamus).
State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981) (credibility and weight of evidence are for the commission).