State ex rel. Hettinger v. Indus. Comm.
2017 Ohio 7899
| Ohio Ct. App. | 2017Background
- Hettinger injured at work in 2008; allowed conditions include right shoulder issues and substantial aggravation of pre-existing adjustment disorder with depressed mood. He had shoulder surgery in 2009.
- He applied for permanent total disability (PTD) on November 19, 2015. Medical evidence included physical exams (Dr. Wunder, CNP Adkins) and three psychological evaluations (Drs. Tosi, Reynolds, Sed).
- Dr. Wunder (physical) found MMI and capability for medium work; Adkins restricted duty. Dr. Sed (1/8/2016) assessed 25% WPI and opined Hettinger was incapable of work. Dr. Reynolds (1/13/2015) concluded that, considering only the allowed psychological condition, Hettinger could return to his former job. Dr. Tosi noted symptom magnification.
- A staff hearing officer (SHO) denied PTD, relying on Drs. Wunder and Reynolds, and also cited Hettinger’s poor participation/effort in vocational rehabilitation and symptom-magnification indicators as additional bases for denial.
- The Industrial Commission denied reconsideration and Hettinger sought a writ of mandamus to compel the commission to vacate its denial and award PTD. The magistrate denied relief; the court adopted that decision and denied the writ.
Issues
| Issue | Plaintiff's Argument (Hettinger) | Defendant's Argument (Commission) | Held |
|---|---|---|---|
| Whether the commission abused its discretion by rejecting Dr. Sed’s report and denying PTD | The commission failed to address Dr. Sed’s report and must explain why it rejected it; Sed’s 2016 report supports PTD | Commission relied on competing medical reports (Drs. Reynolds and Wunder); it need only identify evidence it relied on and briefly explain decision | Denied. Commission did not abuse discretion; it may rely on Dr. Reynolds and was not required to discuss every unfavorable report (Noll) |
| Whether the commission could rely on Dr. Reynolds’ psychiatric opinion (from a TTD context and earlier date) | Reynolds’ report is stale and was prepared in a TTD context, so it’s not probative for PTD | Reynolds’ exam was within the 24-month window permitted by Ohio Adm.Code 4121-3-34(C)(1); his opinion addressed the allowed psychological condition and is probative | Denied. Reynolds’ report was timely and properly considered; reliance was not an abuse of discretion |
| Whether Ritzie requires the commission to explain rejection of a treating physician’s report | Ritzie requires explanation when the record contains only one medical opinion supporting disability | Commission: Ritzie applies when there is a lone, opposing medical opinion; here there was conflicting medical evidence | Held for commission: Ritzie inapplicable because there was conflicting medical evidence |
| Whether nonmedical/vocational factors can support denial of PTD | N/A (Hettinger contends medical evidence compels PTD) | Commission: nonmedical factors (age, education, work record, poor vocational effort, symptom-magnification) support denial | Held for commission: nonmedical factors and vocational participation issues were properly considered and support denial |
Key Cases Cited
- State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991) (commission must identify evidence relied upon and briefly explain reasoning; not required to cite all evidence considered)
- State ex rel. Kroger Co. v. Indus. Comm., 80 Ohio St.3d 483 (1997) (some diagnostic flexibility permitted in psychiatric cases when symptoms overlap and treating physician consistently links symptoms to allowed conditions)
- State ex rel. Ritzie v. Reece-Campbell, Inc., 146 Ohio St.3d 259 (2015) (when only one medical opinion supports disability, the commission must explain why it rejected that report)
- State ex rel. Domjancic v. Indus. Comm., 69 Ohio St.3d 693 (1994) (PTD inquiry requires consideration of ability to perform any sustained remunerative employment and nonmedical factors)