State ex rel. Wayne Dalton Corp. v. Indus. Comm., 2017 Ohio 7736

Background

Claimant Candie Simon injured her back at work in 2011; claim allowed for ruptured disc T12-L1 and post-thoracotomy syndrome; she underwent surgery in 2012 performed by Dr. Mark Cecil.
Dr. Cecil's records: recommended gradual return to sedentary work (Nov 2013); by Feb 2014 noted intractable thoracolumbar pain and stated a "compelling case" for PTD; on Aug 8, 2014 he completed a C-140 indicating ability to work 2 hours/day, 5 days/week; on Aug 11, 2014 he wrote claimant is "permanently and totally disabled from sustained remunerative activity;" on Apr 6, 2015 he again opined claimant was disabled for sustained remunerative employment.
Independent and commission examiners: Dr. Dennis Glazer (Nov 2014) said claimant is employable at sedentary level; Dr. Nicholas Varrati (Feb 2015, commission exam) concluded claimant could not sustain remunerative employment and assigned 43% whole-person impairment.
Employer (Wayne Dalton) offered claimant a front-desk job (2 hours/day, M–F) in Nov 2014; claimant worked that job from Mar 17–Apr 1, 2015 (two hours daily) and participated in vocational rehab; employer produced surveillance video showing various activities across 2013–2015.
An SHO awarded PTD effective Apr 6, 2015, relying primarily on Drs. Cecil and Varrati; employer sought reconsideration, commission denied it, and employer filed this mandamus action seeking to vacate the PTD award.

Issues

Issue	Plaintiff's Argument (Wayne Dalton)	Defendant's Argument (Commission / Simon)	Held
Whether Dr. Cecil's records (Aug 8 C-140; Aug 11 letter; Apr 6, 2015 note) are equivocal/contradictory and thus inadmissible as "some evidence" to support PTD	Cecil's C-140 (2 hrs/day) contradicts his Aug 11 letter and Apr 6 note; the August letter repudiates the C-140 and is therefore equivocal	The C-140 showing 2 hrs/day is not capacity for sustained remunerative employment (court’s precedent: 4+ hrs/day is needed); Cecil’s later notes consistently state claimant cannot sustain remunerative work	Held: Cecil's Aug 11 and Apr 6 reports are not equivocal and constitute some evidence supporting PTD
Whether the SHO properly found the allowed medical conditions alone preclude all sustained remunerative employment (so non-medical factors need not be considered)	Employer argues medical evidence is insufficient when weighed against surveillance, claimant’s brief employment, and lack of driving restrictions; thus PTD should be denied	Commission/claimant rely on treating and commission examiner opinions (Cecil and Varrati) showing intractable pain and objective findings; SHO considered surveillance and job offer and found them not dispositive	Held: There is some evidence (Cecil and Varrati) that allowed conditions alone preclude sustained remunerative employment; SHO did not abuse discretion
Whether Dr. Varrati’s report is incomplete/deficient because it relied on claimant’s history and failed to note employer job offer or vocational efforts	Employer contends Varrati’s report omitted material history, was based on claimant’s subjective/supposedly false reports (contradicted by surveillance and testimony), and thus cannot be some evidence	Commission notes Varrati reviewed commission records (which included VocWorks report and job offer) and based opinion on allowed conditions, records, exam findings and claimant’s complaints; employer could have sought Varrati’s deposition under the administrative rule but did not	Held: Varrati’s report is some evidence; employer’s remedy was to request deposition/interrogatories and failure to do so undermines its complaint
Whether surveillance and employer job offer defeat the PTD finding	Employer argues video and the front-desk offer show claimant can perform sustained remunerative work	Commission/SHO weighed surveillance and job offer, found activities unimpressive or consistent with limitations, and found job attempts unsuccessful; treating and examining physicians’ findings remained persuasive	Held: Court will not reweigh credibility; surveillance and job offer do not overcome the medical opinions; PTD award affirmed

Key Cases Cited

State ex rel. George v. Industrial Commission, 130 Ohio St.3d 405 (recognizes that equivocation disqualifies a medical opinion)
State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649 (defining equivocation and when a medical opinion is disqualified)
State ex rel. Lopez v. Industrial Commission, 69 Ohio St.3d 445 (medical reports may be so internally inconsistent as to be excluded)
State ex rel. Taylor v. Industrial Commission, 71 Ohio St.3d 582 (same principle on internal inconsistency)
State ex rel. Young v. Industrial Commission, 79 Ohio St.3d 484 (courts will not second-guess medical expertise to manufacture inconsistency)
State ex rel. Toth v. Industrial Commission, 80 Ohio St.3d 360 (part-time work can constitute sustained remunerative employment—case-specific)
State ex rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio St.3d 197 (mandamus standard: court will not disturb commission when some evidence supports finding)
State ex rel. Pavis v. General Motors Corp., 65 Ohio St.3d 30 (commission best positioned to weigh evidence and credibility)
State ex rel. Speelman v. Industrial Commission, 73 Ohio App.3d 757 (if medical evidence alone bars work, non-medical factors need not be analyzed)
State ex rel. Midmark Corp. v. Industrial Commission, 78 Ohio St.3d 2 (procedural remedy to depose commission-appointed doctors)
State ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d 39 (possession of driving ability does not preclude PTD)