A(^^ 05 hn CLERK OF COURT SUPREME C UST OF OHIO IN THE SUPREME COURT OF OIIIO. * Case No Appellant,

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1 IN THE SUPREME COURT OF OIIIO State of Ohio ex rel. Kathie J. Potts, V. Appellant, Industrial Commission of Ohio, et al. Appellee. * Case No * * * On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals * Case No. 07APD MERIT BRIEF OF APPELLANT, KATHIE J. POTTS Theodore A. Bowman (009159) GALLON, TAKACS, BOISSONEAULT & SCHAFFER CO. L.P.A Granite Circle Toledo, OH (419) (419) fax Attorney for Appellant, Kathie J. Potts * Christopher Russell ( ) PORTER, WRIGHT, MORRIS & * ARTHUR 41 South High Street. * Columbus, OH (800) (614) fax * Attorney for Appellee, Fayette Tubular Products * William R. Creedon ( ) ASSISTANT ATTORNEY GENERAL 150 East Gay Street, 22"d Floor Columbus, OH (614) (614) fax Attorney for Appelle Industrial Commissi i.,w af- O. ALLON,TAKACS,901SSONEAULi & SGiAFfERCO., L.P.A IHEJACKOALLON9UIIDINO 3515GflAWTECIFCLE TOLEOO,OHIO0.551T-11TR A(^^ 05 hn CLERK OF COURT SUPREME C UST OF OHIO

2 TABLE OF CONTENTS Table of Authorities.:... p. ii. Statement of the Case... p. 1. Statement of Facts... p. 1. Law and Argument...:... p. 4. PROPOSITION OF LAW NUMBER ONE :... p. 4. A decision denying PTD benefits based upon the Stephenson factors, which contains a clear, obvious and prejudicial mistake of fact regarding the injured worker's education requires remand to the Industrial Commission for reconsideration of the application with a correct understanding of the facts. PROPOSITION OF LAW NUMBER TWO :... A decision denying PTD benefits based upon the Stephenson factors, which contains a clear, obvious and prejudicial mistake of fact regarding the injured worker's alleged refusal to take employment requires remand to the Industrial Commission for reconsideration of the application with a correct understanding of the facts. p. 8. Conclusion p. 10. Certification p. 12. Appendices Magistrates Decisioin A. Judgment Entry of the Court of Appeals... B. Decision of the Court of Appeals... C. Notice of Appeal... D. Order of the SHO... E. Order of the Industrial Commission... F. i

3 TABLE OF AUTHORITIES State, ex rel. Humble v. Mark Concepts, Inc., (1979) 60 Ohio St. 2d 77...p. 6. Heirs of Ludlow v. Kidd's Hiers and others, (1826) 2 OHIO 372, 1826 Ohio LEXIS p. 6. State ex rel. Noll v. Industrial Commission (1991) 57 Ohio St. 3d p. 7.

4 STATEMENT OF THE CASE This action in mandamus originated in the Tenth District Court of Appeals. Appellant, Kathie J. Potts, alleges that the Industrial Conunission abused its discretion by denying the award of Permanent Total Disability benefits. This workers' compensation matter was referred to a magistrate who, after considering the briefs and oral arguments, denied the requested writ. Appellant then filed objections, and the Court of Appeals, after considering further briefing of objections and responses, concurred with the magistrate's decision and denied the requested writ of mandamus. Appellant has appealed from that Court of Appeals decision to this Court. STATEMENT OF FACTS Appellant, Kathie J. Potts, suffered an industrial injury in the course of and arising out of her employment as a factory worker for Defendant, Fayette Tubular Products, Inc., on December 17, (Stip. at 17) The injury occurred when, while operating a machine, an improperly secured die cast from another machine running behind the Appellant fell, hitting her in the back. (Stip. at 9.) The claim was initially allowed for the condition of contusion of back and was later amended to include lumbosacral sprain, aggravation of pre-existing lateral L2-3 disc herniation, herniated disc at L3-4, herniated disc at L4-5 and adjustment disorder with depressed mood. (Stip. at 100.) Following the industrial injury Appellant twice attempted vocational rehabilitation before ending her job search in connection with physician's orders. (Stip. at ) On April 13, 2006, Appellant filed an Application for Compensation for Permanent Total Disability. On December 7, 2006, a Staff Hearing Officer (SHO) considered the Application I

5 and heard testimony concernnig Appellant's physical and psychological limitations. (Stip. at 133.) The Staff Hearing Order dated December 16, 2006 denied Appellant's IC-2 Application for Compensation for Permanent Total Disability. (Stip. at 136.) The SHO found that Appellant is capable of sustained remunerative employment and is not permanently and totally disabled. In reaching this conclusion, the SHO was particularly focused on the reports of Dr. Popovich, Dr. Zupnik, Dr. Kale and Dr. Richetta, and certain vocational factors and rehabilitation efforts. (Stip. at 133.) Specifically, the SHO found that Claimant's age, education and vocational training fostered potential for her re-employment, and her alleged reluctance to accept or pursue feasible job opportunities likewise contributed to the SHO's denial of PTD. (Stip. at 135.) However, the SHO's order is based upon two clear mistakes of fact. The first is found in the section of the order where the SHO finds: The Injured Worker's education is also a positive factor in regard to her potential for a return to work. Not only did the Injured Worker have a B average in high school, she graduated from college. (Stip. at emphasis added.) Appellant's Application for Compensation for Permanent Total Disability states that she did attend classes for two years at Stautzenberger College, but she did not receive a degree of any kind. According to Appellant, she completed this coursework prior to her industrial injury herein and did receive a certificate of completion for the section in computer repair. (Stip. at 151). After completion of the computer repair program, and while in the employ of Appellee, Fayette Tubular Products, Appellant sought certification in computer networking. Full cerflfication required a passing score on seven exams of wluch Appellant passed two and failed a third. (Stip. at 151, 5). Appellant's industrial injury and the 2

6 resulting decrease in earning capacity compelled her withdrawal prior to obtaining certification. (Stip. at 1). Therefore, the SHO's characterization of Appellant as a college graduate is entirely incorrect and amounts to a clear mistake of fact. The second mistake of fact occurs in the SHO's discussion of Appellant's rehabilitation efforts. The SHO found that Appellant did complete a rehabilitation program and, farther, that she "had the opportunity to engage in part-time work" and "failed to follow through on the opportunity for a position of employment." (Stip. at ). To the contrary, at all times relevant to her claim, Appellant sought a position of full-time employment, but had never received either a part-time or a full-time offer of employment. In the December 16, 2006 decision, the SHO improperly equated Claimant's decision not to attend a second interview at Fulton County Health Center for a part-time position with refusing a job offer. In doing so, the SHO found that whether characterizing Appellant's behavior as foregoing an interview or as refusing a job offer is "a distinction without a difference." (Stip at 135.) This finding is also a clear mistake of fact. Appellant was only one of several candidates for the position at Fulton County Health Center, and at the time of her application, she was under the impression that it was for a full-time position. (Stip. at 151). Appellant decided not to attend the second interview because she needed and was seeking full-time work. (Stip. at , 6.) It is a clear mistake of fact to equate this series of events with refusing an offer of employment. There is no evidence in the record that Appellant received a job. Given that no offer was made to her she did not in fact have "the opportunity to engage in part-time work." (Stip. at 135.) Moreover, Appellant continued to seek full-time employment subsequent to her exchange with Fulton County Health Center, interviewing for 3

7 at least three full-time positions. (Stip. at , 6.) Unfortunately, no job opportunities developed from these interviews. Claimant did not discontinue her pursuit of full-time employment until she was advised to do so by her physician. (Stip. at , 6.) On June 18, 2007, the Appellant filed a complaint in mandamus with the 10th District Court of Appeals in Franklin County. Subsequently on March 18, 2008, the Court found that the commission did not abuse its discretion in denying Appellant's application for PTD compensation. The Court, on that same date, entered a judgment denying Appellant's request for a writ of mandamus. LAW AND ARGUMENT Proposition of law number one: A decision denying PTD benefits based upon the Stephenson factors, which contains a clear, obvious and prejudicial mistake of fact regarding the injured worker's education requires remand to the Industrial Commission for reconsideration of the application with a correct understanding of the facts. A. Appellant does not have a college degree "As an initial matter, we note that no party disputes relator's assertion that she did not graduate from college." (Appendix B, p. 3, 5.) Here we see the Court of Appeals acknowledging the fact that the SHO's order contains a mistake of fact as to the Relator's educational background. Yet, despite the fact that the error was fully acknowledged, the Court of Appeals has denied the grant of a writ of mandamus. The Court of Appeals refusal to grant the writ is error. B. Relying upon this mistake of fact is an abuse of discretion. The relevant inquiry in a determination of permanent total disability is the claimant's ability to do any sustained remunerative employment. Generally, in making this determination, the commission must consider not only the medical 4

8 impairments, but also the claimant's age, education, work record and other relevant nonmedical factors [the Stephenson factors]. Thus, a claimant's medical capacity to work is not dispositive if the claimant's nonmedical factors foreclose employability. The commission must also specify in its order what evidence has been relied upon and briefly explain the reasoning for its decision. (Appendix C, p. 11, 24--citations omitted.) In this matter it has never been contested that the determinative factors are the nonmedical Stephenson factors. As such, one of the salient questions for the SHO specifically relates to the Appellant's educational background as part of her overall ability to do sustained remunerative employment. The record clearly establishes that the SHO conducted the crucial Stephenson analysis under the mistaken impression that the Appellant was a college graduate. Moreover, it is clear that the SHO relied substantially on this mistake of fact in making her decision. The SHO specifically referred to the Appellant as a college graduate on two separate occasions. The SHO first described Appellant as a "fifty-four-year-old female who has completed high school and graduated from college in 1993." (Stip. at 134.) The SHO then found, "[i]n evaluating the Stevenson [sic] factors, this Staff Hearing Officer fmds that... The Injured Worker's education is also a positive factor in regard to her potential for a return to work. Not only did she have a B average in high school, she graduated from college." (Stip. at 135.) Accordingly, the SHO's order, on its face, demonstrates that the hearing officer's erroneous belief regarding the Appellant's educational history was a material factor in her ultimate decision. Thus, the only reasonable solution is to grant the writ of mandamus and order the Industrial Commission to reconsider this case based upon the actual facts. C. A decision denying or granting workers' compensation benefits must be supported by "some evidence." It is uncontested that the SHO relied upon a mistake in her analysis. The Commission 5

9 prepared a document entitled "statement of facts" which mistakenly indicated that the Appellant had a college degree. In her order the SHO, relying on that mistake, first stated that Appellant "graduated from college in 1993," (Stip. p. 134) and, in the context of a discussion of Appellant's Stephenson factors, stated that Appellant "graduated from college." (Stip. at 135.) "The law in Ohio is well settled. The determination of disputed factual issues and the interpretation of regulations is within the sound discretion of the Industrial Commission. This rule is sometimes referred to as the `some evidence' rule, i.e., where the record contains some evidence to support the commission's factual fmdings, these fmdings will not be disturbed." State, ex rel. Humble v. Mark Concepts, Inc., (1979) 60 Ohio St. 2d 77, 79 (citations omitted). The concept of mistake of fact, for appellate purposes, was first defined in Ohio almost two hundred years ago in Heirs of Ludlow v. Kidd's Hiers and others, (1826) 2 OHIO 372, 1826 Ohio LEXIS 104. The Ludlow Court found "[t]he distinction between an error in law and an error in fact (or rather mistake of fact) is perfectly obvious. If, from the evidence adduced, the court are [sic] of the opinion that a particular fact exists, when in reality that fact does not exist, it is an error in fact." Ludlow, 1826 Ohio LEXIS 104 at *4. In the instant matter, the SHO was quite clearly under the erroneous impression that the Appellant had received a college degree. The SHO's order states that the Appellant "graduated from college in 1993," (Stip. at 134) and "[n]ot only did the Irnjured Worker have a B average in high school, she graduated from college." (Stip at 135.) However, as the Court of Appeals noted, that was a mistake on the part of the SHO. Appellant does not have a college degree and there is, quite simply, no evidence in the record indicating otherwise. This mistake of fact was then compounded by the Magistrate for the Court of Appeals 6

10 who opined that the mistake in the statement of facts prepared by the Industrial Commission "would constitute `some evidence' upon which the Commission could have relied in making this finding." (Appendix C, 25.) In other words, the Magistrate found that a document prepared by the Commission's staff to summarize the evidence in the file is, in and of itself, evidence, and that the SHO could rely upon statements within the "statement of facts" even if erroneous. Finally, the Court of Appeals compounded the errors of the SHO and the Magistrate by endorsing the SHO's fmding based upon a mistake of fact. The Court of Appeals found "the SHO's decision contained a factual error." (Appendix C, 5.) Yet, the Court of Appeals "[overruled] relator's objections," (Appendix C, 5) and thus refused to grant the requested writ of mandamus based on a finding that "even without a college degree, there is no question that her education was a positive factor." (Appendix C, 5.) However, this language that the Appellant's education was a positive factor even without the mistaken "college degree" is nowhere to be found in the SHO's order. Ohio law clearly provides that factual findings must be supported by "some evidence." Moreover, that evidence must be within "the four corners of the decision." State ex rel Noll v. Industrial Conunission, (1991) 57 Ohio St. 3d 203, 206. The Court of Appeals exceeded its scope of review by determining that while the rationale given by the Hearing Officer was simply wrong, the outcome would have been the same. Noll provides that a reviewing court is not to look into the record for "some evidence" to support a decision of the Industrial Commission, but rather must look only to the four corners of the order itself. Noll, 57 Ohio State 3d at 206. By looking outside the four corrners of the order the Court of Appeals exceeded its 7

11 scope of review. The Court of Appeals is not to reexamine the evidence, nor is it to disregard manifest factual error in the Commission's rationale for decision and uphold the order by substituting its own rationale for that of the Commission. In this instance, there is absolutely no evidence that the Appellant has a college degree and it is plainly an abuse of discretion for the SHO to fmd that she does. Therefore, the Court of Appeals should have granted the writ of mandamus and ordered the Industrial Commission to reconsider the matter based upon the actual facts of the case. Proposition of law number two: A decision denying PTD benefits based upon the Stephenson factors, which contains a clear, obvious and prejudicial mistake of fact regarding the injured worker's alleged refusal to take employment requires remand to the Industrial Commission for reconsideration of the application with a correct understanding of the facts. A. The Appellant never refused work In the order the SHO found "the Injured Worker... had the opportunity to engage in part-time work." (Stip. at 135.) The SHO then concluded that "`refusing a job' and `did not return for a second interview'... is a distinction without a difference." (Stip. at 135.) Thus, the SHO detennined that a decision on the part of the Appellant to not attend a second interview for a job which was only part-time while she was looking for full-time work constituted a refusal of work. The SHO held that not going to a second interview (which all applicants needed to attend--stip. at , 6) was the same as refusing offered work, referring to it as a "distinction without a difference." (Stip. at 135.) The SHO seems to be speculating that the Appellant would have been offered the job had she attended the interview. The SHO then compounds this speculation by further speculating that if offered the part-time position, the 8

12 Appellant would have refused the employment. It is important to recall that as the finder of fact, the SHO is not permitted to speculate. The record clearly provides that no job was offered. Furthermore, the record also clearly provides that all applicants were asked to attend this second interview. Thus, it was not as if Appellant was in close running for a job offer, but then foreclosed that possibility by failing to attend an interview. This second interview was no different from the first interview except in the person who conducted the interview. (Stip. at , 6.) The finding by the SHO that the Appellant refused work is a clear mistake of fact devoid of evidentiary support. There was no job offered. As a matter of logic and common sense, Appellant cannot refuse work when no work has been offered. Because there is no evidence in the record that any work within her physical capabilities was ever available to Appellant, it is an abuse of discretion for the Commission to find that she had an opportunity to engage in part-time work and that she refused such employment. Finally, this mistaken conclusion on the part of the SHO necessarily had a prejudicial impact on her analysis of the non-medical disability factors. B. Relying upon this second mistake of fact was an abuse of discretion In the instant matter the Appellant was unfairly prejudiced by the SHO's mistaken belief that she had refused or failed to follow through on available work. If the Appellant had refused an offer of employment, then it would not be an abuse of discretion for the SHO to draw a negative inference from that refusal. However, that was not the case in the matter sub judice. In this matter the Appellant never was offered any employment. Thus, she neither refased work nor failed to pursue an actual employment opportunity. The negative inference drawn by the SHO based upon that mistaken belief colors all of the SHO's analysis and taints 9

13 the entire order. As noted above, it is inconsistent with substantial justice and basic legal analysis to allow a mistake of fact to be the basis for any decision--regardless of whether it is an award of benefits or a denial of benefits. Yet, a mistake that obviously puts the Appellant in a very bad light and which seriously impugns her credibility is allowed to stand uncorrected. Basic principles of substantial justice require that that error be corrected and that the Industrial Commission be ordered to reconsider this matter based upon the actual facts of the case. CONCLUSION Two manifest material factual errors fatally flaw the SHO's adjudication of this cause. First, contrary to the finding of the SHO, Appellant did not graduate from college. Second, there is no evidence in the record to support the finding that Appellant "had the opportunity to engage in part-time worlc" (Stip. at 135.) As the foregoing discussion has shown, these clear errors of fact, individually and in combination, necessarily prejudiced Appellant. The false premise that she held a college degree was explicitly relied on as part of the SHO's explanation for her conclusion regarding the Stephenson factors. The false premise that Appellant refased a job which was available to her would inevitably have lead the finder of fact to draw negative inferences regarding Appellant's motivation and the bona fides of her attempts to secure suitable alternative employment. Finally, the Court of Appeals erred in acknowledging the clear error of fact regarding Appellant's education, but refusing to return the matter to the Commission for further consideration. It is improper for the appellate court to substitute its own Stephenson analysis 10

14 for that of the Industrial Commission. For these reasons, this Court should conclude that the Industrial Commission abused its discretion in refusing to invoke its continuing jurisdiction in light of the clear errors of fact contained in the SHO's order denying Permanent Total Disability benefits. This Court should issue a limited writ of mandamus compelling the Industrial Commission to vacate its orders of December 7, 2006 and February 8, 2007 and to conduct further review consistent with the opinion of this Court. Respectfully submitted, ^7^A7tx. 4W^^"e"r Theodore A. Bowman # GALLON, TAKACS, BOISSONEAULT & SCIIAFFER CO., L.P.A Granite Circle Toledo, OH TEL (419) FAX (419) Attorney for Appellant, Kathie J. Potts 11

15 CERTIFICATION This is to certify that the foregoing Brief of Appellant, Kathie J. Potts was served upon Attorney for Appellee, Industrial Commission of Ohio, William R. Creedon, Esq., Assistant Attorney General, 150 East Gay Street, 22 a Floor, Columbus, Ohio and upon Attorney for Appellee, Fayette Tubular Products, Christopher Russell, Esq., 41 South High Street., Columbus, OH by regular U.S. Mail this 4th day of August, Theodore A. Bowman 12

16 APPENDIX A

17 State of Ohio ex rel. Kathie J. Potts, IN THE COURT OF APPEALS OF Ohio TENTH APPELLATE DISTRICT NOV F= i_- Lr") cr FltA,'i?<,(.Ift ^Z^1 147V 2 i i'h 1: 22 u CLERtf OF COUP,TS Relator, V. Fayette Tubular Products, Inc. and Industrial Commission of Ohio, No. 07AP-505 (REGULAR CALENDAR) Respondents. MAGISTRATE'S DECISION Rendered November 21, 2007 Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A., and Theodore A. Bowman, for relator. Marc Dann, Attorney General, and William R. Creedon, for respondent Industrial Commission of Ohio. IN MANDAMUS Relator, Kathie J. Potts, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied her application for permanent total disability ("PTD") compensation and ordering the commission to find that she is entitled to that compensation. Relator also argues that the commission abused its discretion by refusing to exercise continuing jurisdiction as requested by relator.

18 No. 07AP Relator sustained a work-related injury on December 17, 1994, and her claim has been allowed for "contusion of back; lumbosacral strain; aggravation of preexisting right lateral L2-3 disc herniation; herniated disc L3-4 and L4-5; adjustment disorder with depressed mood." 2. Relator's first application for PTD compensation was denied in Relator filed her second application for PTD compensation in April Relator's application was supported by the November 2005 report of Robert A. MacGuffie, Ph.D., who had been treating her for her allowed psychological condition. Dr. MacGuffie opined that relator was unable to perform sustained remunerative employment. 4. Relator was examined by Harvey A. Popovich, M.D., in September Dr. Popovich opined that relator's allowed physical conditions had reached maximum medical improvement ("MMI"), assessed a 23 percent whole person impairment, and opined that relator was capable of performing at a sedentary work level. 5. Relator was also examined by Stanley M. Zupnick, Ph.D., in September With regard to relator's allowed psychological condition, Dr. Zupnick opined that relator had reached MMI and he assessed a 15 percent whole person impairment. Based solely upon the allowed psychological condition, Dr. Zupnick opined that relator was capable of working with certain limitations. 6. The record also contains a vocational capacities evaluation performed in 6cCoGeF"2006 by Barbara Gearhart M:Ed-:; CRC; LPC. Witls-regards to relator's education, Ms. Gearhart noted:

19 No. 07AP stated: Ms. Potts graduated from Roy C. Start High School in In 1993, she attended Stautzenberger Business College studying computer repair and computer networking. This training terminated when she had to move from the area. When she was in a position to resume her training, the technology had changed to such a degree that she would have had to start over which was not an option for her at the time. In 2002, Ms. Potts completed a 6-month Administrative Assistant course at the Academy of Technical Studies in Toledo, Ohio. She completed this training in an attempt to rehabilitate herself for work. Further, with regards to relator's attempts at rehabilitation, Ms. Gearhart On two occasions over the past 11 years, Ms. Potts has made attempts to rehabilitate herself for work. In 2002, she successfully completed a 6-month Administrative Assistant certificate program. She developed word processing and other general office skills. She states that it was difficult for her to sit at the computer during classes. She used a specially designated chair to ease her back pain and got up to move around at will. She participated in job placement activities and went out on several interviews. She notes that it was very painful getting into and out of her car as she made calls. He[r] doctor advised her to quit looking for work because she was in his office more often with increased pain. She became very discouraged and disappointed. In 2004, she contacted Michigan Rehabilitation Services for help in finding work. She was put in contact with a placement person who was unable to find a job match for her. Her file was ultimately closed. Ms. Potts even paid for a medical course to enhance her skills. 7. Lastly, the record contains the statement of facts prepared following the filing of her April 2006 application for PTD compensation. With regards to relator's education; thestatemenlof facts provides:^ "Graduatettfrarn Stautzenberger Caltege-itt " It was also noted that relator had completed an administrative office assisting

20 No. 07AP program with accounting and medical coding and billing from the Academy of Technical Studies in March With regards to rehabilitation, the following was noted: 5/24/02: Rehabilitation closed as injured worker successfully completed a short term training program in March of 2002 and exhausted 13 week[s] of job search services. No success in finding job. Injured worker does not indicate if she is willing to participate in rehabilitation services on IC-2. B. Relator's application was heard before a staff hearing officer ("SHO") on December 7, 2006 and was denied. The SHO relied upon the September 2006 reports of Drs. Popovich and Zupnick as well as the October 2003 reports of Drs. Lawrence A. Kale and Raymond D. Richetta which had been prepared in response to her first application for PTD compensation. The SHO found that relator was capable of performing at a sedentary work level and that her allowed psychological condition would permit her to return to some form of sustained remunerative employment. With regards to the nonmedical disability factors, the commission found that relator's age of 54 was a positive asset. With regards to her education, the commission stated: * * * The Injured Worker's education is also a positive factor in regard to her potential for a return to work. Not only did the Injured Worker have a B average in high school, she graduated from college. She underwent training to do computer repair work, and she underwent training to become an administrative office assistant, with specialty in accounting, medical coding and billing. 9. The commission also found relator's varied work history positive as it included hands-on-work and people-oriented tasks. Further, the commission found that relator heddeveloped-the skills necessary to secure and-maiain-entry-levef work-t6 her prior work history as well as through her vocational retraining. With regards to relator's attempts at rehabilitation, the commission noted:

21 No. 07AP In regard to the Injured Worker's rehabilitation efforts, the Hearing Officer finds that the Injured Worker did go through a Rehabilitation Program and had the opportunity to engage in part-time work. At today's hearing, it was noted that the Injured Work[er] was looking for full-time work at the time, and was not aware that the job she was interviewing for was a part-time position until she went through her interview. The Injured. Worker's, representative attempts to make a distinction between the Injured Worker's "refusing a job" and the fact that she "did not return for a second interview". The Hearing Officer finds that this is a distinction without a difference. Regardless, the Injured Worker failed to follow through on the opportunity for a position of employment. This Hearing Officer finds that the Injured Worker could have taken a part-time job and still looked for full-time employment, if she had chosen to do so. The Hearing Officer also notes that the Rehabilitation Closure on 6/4/2002, indicated that the Injured Worker still had other placement options open to her, that being several more months of free placement assistance at the Academy of Technical Studies, as well as LLC in a job search, and job search options left. As of the Staff Hearing Officer hearing of 1/23/2004, the Injured Worker stopped all job search and rehabilitation efforts and did not pursue any further placement through any other sources. This Hearing Officer notes that there is a letter in file from Michigan Rehabilitation Services regarding a closure on 12/22/2004 due to "significant barriers to employment presented by your disability." Because there is no information as to what factors were involved in the Michigan Rehabilitation Program and its closure, the Hearing Officer cannot make a determination as to the applicability of the rehabilitation effort made to Injured Worker's allowed conditions in this claim. Therefore, the Hearing Officer finds that there is not reliable evidence in the file that the Injured Worker is not capable of vocational retraining. 10. Relator filed a request for reconsideration on grounds that the SHO's decision contained clear mistakes of fact. Relator stated in an affidavit that she did not graduate from college in Specifically, relator averred as follows: *"` Contrary to ttie findings of ttfe Staff Hearing Dfficer, Y didnot graduate from college in During 1992 and 1993, while working at Impact Products and prior to sustaining the injury involved in this claim, I took classes at Stautzenberger College in the field of computer repair and networking. In

22 No. 07AP , I received a certificate of completion reflecting that I had completed courses in the field of computer repair. I did not receive either a Bachelor's or associate's degree, and did not in fact graduate from college. Relator then indicated that she continued to seek certification in computer networking and had taken two out of seven required certification exams before she sustained her work-related injury. Relator indicated that she failed the third certification test and found that, in the two to three years since her training, changes in both technology and curriculum made much of what she had learned obsolete and never completed her certification in networking. Further, relator argued that the SHO's finding that she had failed to accept or pursue employment opportunities was improper. Specifically, relator averred as follows: * * * The Staff Hearing Officer incorrectly concluded that I "had the opportunity to engage in part-time work" and "failed to follow through on the opportunity for a position of employment." As I testified at my hearing, I had applied for a full-time position at Fulton County Health Center. I went to an interview for a position with a new physician who was joining the staff at Fulton County Health Center. During the initial interview, I learned that the job was part-time. I was also told that everyone who had been interviewed would have a second interview, with the physician, before the job would be offered to anyone. Because I needed and had applied for full-time work, I did not attend the second interview. I was never offered a job by Fulton County Health Center or the doctor. I was one of approximately 12 candidates to interview for this job, and even had I attended the second interview, I would not.necessarily have been offered the job. After this, I continued to seek full-time employment, and interviewed for at least three other jobs, without receiving any offers, before I discontinued my job search on the advice of my doctor, who told me that I could no longer work. 11. The commission denied relator's request for reconsideration by an order mailed February 8, 2007.

23 No. 07AP Thereafter, relator filed the instant mandamus action in this court. Conclusions of Law: In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, relator must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex re1. Pressley v. lndus. Comm. (1967), 11 Ohio St.2d 141. A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76. On the other hand, where the record contains some evidence to support the commission's findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56. Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder. State ex rel. Teece v. Indus. Comm: (1981), 68 Ohio St.2d 165. Relator does not contest the medical evidence upon which the commission relied. Instead, relator focuses on the commission's analysis of the nonmedical disability factors. Specifically, relator argues that the commission's order contained clear mistakes of fact with regards to her education and her opportunities for other work. Relator further argues that the commission should have granted reconsideration because she proved that the commission's order denying her application for PTD compensation contained these mistakes of fact. The commission argues that relalor 3 educafional-levet was a positive -factor- whetfl2r ornot s}5e actualty gradu- ated from college in 1993 and that the commission would have denied her application for PTD compensation even if she had not graduated from college. Further, the

24 No. 07AP commission argues that the "job interview" issue was only one of many evidentiary factors cited by the SHO in the context of relator's rehabilitation efforts and that the SHO merely considered the evidence that relator refused to attend a second interview and whether or not it contributed to the reliability of the evidence regarding relator's vocational retraining capabilities. The commission asserts that relator is asking this court to reweigh the evidence and requests that her writ of mandamus be denied. The relevant inquiry in a determination of permanent total disability is the claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic v. Indus. Comm. (1994), 69 Ohio St.3d 693. Generally, in making this determination, the commission must consider not only medical impairments, but also the claimant's age, education, work record and other relevant nonmedical factors. State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. Thus, a claimant's medical capacity to work is not dispositive if the claimant's nonmedical factors foreclose employability. State ex ret Gay v. Mihm (1994), 68 Ohio St.3d 315. The commission must also specify in its order what evidence has been relied upon and briefly explain the reasoning for its decision. State ex re1. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203. Relator contends that the commission abused its discretion when it found that she had completed college in Without addressing whether or not relator actually did or did not graduate from college in 1993, the magistrate finds that the commission's finding did not constitute an abuse of discretion. As noted in the findings of fact, the statement of facts prepared before the hearing on her application indicated thaf"sfie hatl-"graduafefi from Stautzenberger College in"1993." This, in and of icself; would constitute "some evidence" upon which the commission could have relied in making this finding. Furthermore, relator could have corrected this error at the hearing.

25 No. 07AP Also, on her application for PTD compensation, relator indicated that she attended Stautzenberger Business College for two years. The vocational evaluation prepared by Ms. Gearhart indicates that relator attended Stautzenberger Business College in 1993 and studied computer repair and computer networking. Ms. Gearhart did indicate that relator's training was terminated when she moved from the area and that, when she was in a position to resume her training, the technology had changed. These statements do not necessarily contradict the statements aforementioned concerning relators college education, especially since the commission is not required to consider or rely on vocational reports submitted by the parties. It was incumbent upon relator to ensure that the issue of her education was correct. Further, inasmuch as some colleges offer two-year studies in particular areas, the magistrate finds that this is also some evidence that relator had completed college. As such, the commission did not abuse its discretion in finding that she had graduated. Relator also challenges the commission's handling of her rehabilitation efforts. Essentially, relator contends that the commission abused its discretion by holding her rehabilitation efforts against her. This magistrate disagrees. First, the SHO noted that relator had an opportunity to pursue a part-time job. Relator declined to do so. Second, the SHO noted that relator's rehabilitation file was closed in June 2002, although relator still had other placement options and several months of free placement service remaining. Third, the SHO noted that relator stopped looking for any work in 2004 and that her rehabilitation file was closed due to significant barriers"to emptoyment presented-by Pie"r disability: The SHG fc>unti ttiat exptanatitsrr was devoid of any reasoning and so found it to be unreliable regarding relator's ability to pursue further vocational retraining. All of these findings are contained in the record.

26 No. 07AP As such, the commission's reliance on these facts did not constitute an abuse of discretion. Further, the commission did not determine that relator's PTD application should be denied due to any failure on her part to pursue rehabilitation. The commission merely used these facts as part of its determination that relator retained the capacity to acquire new skills. Relator was only 54 years old, graduated from high school, could read, write, and perform basic math, and had received specialized training for computers as well as training to become an administrative office assistant with emphasis in accounting, medical coding, and billing. Those skills could be utilized at a number of sedentary jobs. Further, relator does not contest that the commission found her prior work history to be positive. This prior work history provided her with the opportunity to use several different types of equipment, taking customer orders, dealing with money, customer service, packaging, and reading blueprints. Based on all the evidence presented, the magistrate finds that relator has not demonstrated that the commission abused its discretion in denying her application for PTD compensation, even if it is accepted that she did not graduate from college in 1993 and that she did not turn down or pursue a specific job. Relator also argues that the commission abused its discretion when it denied her request for reconsideration. Relator asserts that she established that the order denying her PTD compensation contained clear mistakes of fact which warranted reconsideration. Pursuant to R.C , "[t]he jurisdiction of the industrial commission and- the - authorif"ji of the adrriinistratofr" cf-workers' compensation- over each -case- Is - continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified." In State ex

27 No. 07AP rel. B & C Machine Co. v. Indus. Comm. (1992), 65 Ohio St.3d 538, , the court examined the judicially-carved circumstances under which continuing jurisdiction may be exercised, and stated: R.C contains a broad grant of authority. However, we are aware that the commission's continuing jurisdiction is not unlimited. See, e.g., State ex rel. Gatlin v. Yellow Freight System, Inc. (1985), 18 Ohio St.3d 246 "**(commission has inherent power to reconsider its order for a reasonable period of time absent statutory or administrative restrictions); State ex rel. Cuyahoga Hts. Bd. of Edn. v. Johnston (1979), 58 Ohio St.2d 132 ***(just cause for modification of a prior order includes new and changed conditions); State ex rel. Weimer v. Indus. Comm. (1980), 62 Ohio St.2d 159 * * * (continuing jurisdiction exists when prior order is clearly a mistake of fact); State ex rel Kilgore v. Indus. Comm. (1930), 123 Ohio St. 164 * * * (commission has continuing jurisdiction in cases involving fraud); State ex rel Manns v. Indus. Comm. (1988), 39 Ohio St.3d 188 * * * (an error by an inferior tribunal is a sufficient reason to invoke continuing jurisdiction); and State ex rel. Saunders v. Metal Container Corp. (1990), 52 Ohio St.3d 85 * * * (mistake must be "sufficient to invoke the continuing ju(sdiction provisions of R.C "). Today, we expand the list set forth above and hold that the Industrial Commission has the authority pursuant to R.C to modify a prior order that is clearly a mistake of law. * * * In her affidavit, relator states that she did not graduate from college in She indicates that she took classes at Stautzenberger in the field of computer repair and networking and, in 1993, she received a certificate of completion. Although she goes on to indicate that she did not receive a bachelors or associate's degree, her statements do not necessarily indicate that the SHO's order contained a clear mistake of fact. R.C grants the commission continuing jurisdiction to make a modification or change as is justified. Relator asserts that this error was prejudicial; however, given that her educational pursuits were only used as evidence that she could obtain new skills, relator has not demonstrated prejudice which would require the

28 No. 07AP commission to exercise its continuing jurisdiction. The magistrate finds that the commission did not abuse its discretion by denying her request for reconsideration on this ground. With regards to her rehabilitation and her opportunities for other work, the magistrate again concludes that the commission did not abuse its discretion in refusing to exercise its continuing jurisdiction in this matter as relator has not demonstrated a clear mistake of fact.which the commission was unjustified in refusing to change. In addition to the commission's statement concerning relator's failure to pursue a part-time job, the SHO had also cited the rehabilitation closure report from June 2002, which indicated that relator still had other placement options available to her including free placement assistance. The SHO also noted the letter from Michigan Rehabilitation Services from December 2004, indicating that her file was closed due to a significant barrier to employment presented by her disability. The SHO correctly noted that the letter did not provide information as to what factors were involved in that decision. The SHO believed that relator was still capable of vocational retraining. Even if the commission's findings with regards to this issue are wrong, the magistrate finds that did not necessitate the commission exercising its continuing jurisdiction. The SHO determined that relator was not entitled to PTD compensation based upon the finding that relator could perform some sustained remunerative employment at a sedentary level and that her psychological condition did not preclude employment. Further, the SHO determined that relator's age, education, and prior work history were ali" positive -facfors With tegarct to her ability to secuure entry'-fever employment. Based upon those conclusions alone, the SHO could have denied her application for PTD compensation without even addressing her attempts at

29 No. 07AP rehabilitation. As such, the magistrate finds that the commission did not abuse its discretion by refusing to exercise its continuing jurisdiction to correct this alleged error. Based on the foregoing, it is the magistrate's conclusion that relator has not demonstrated that the commission abused its discretion in denying her application for PTD compensation and this court should deny her request for a writ of mandamus. 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).

30 APPENDIX B

31 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Kathie J. Potts, Relator,,MAR2120M r^ ^-- c:a ^ c^> u^ N^ w.a ca.9- V. Fayette Tubular Products, Inc. and Industrial Commission of Ohio, No. 07AP-505 (REGULAR CALENDAR) Respondents. JUDGMENT ENTRY For the reasons stated in the decision of this court rendered herein on March 18, 2008, the objections to the decision of the magistrate are overruled,'the decision of the magistrate, as supplemented, is approved and adopted by the court as its own, and it is the judgment and order of this court that the requested writ of mandamus is denied. Costs shall be assessed against relator. Within three (3) days from the filing hereof, the clerk of this court is hereby ordered to serve upon all parties not in default for failure to appear notice of this judgment and its date of entry upon the journal. Judge Judith L. French ^.". ^ ^- -^ ^- ^ - Judge Susan Brown )4,7 Judge William A. Klatt

32 APPENDIX C

33 MAR212M& IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Kathie J. Potts, Relator, v. No.07AP-505 Fayette Tubular Products, Inc. and Industrial Commission of Ohio, (REGULAR CALENDAR) Respondents. D E C I S I 0 N Rendered on March 18, 2008 Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., and Theodore A. Bowman, for relator. Marc Dann, Attorney General, and William R. Creedon, for respondent Industrial Commission of Ohio. IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION FRENCH, J. {y[1} Relator, Kathie J. Potts ("relator"), filed this original action, which requests that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying her application for permanent total disability ("PTD") compensation and ordering the commission to find that she is entitled

34 No. 07AP to that compensation. Relator also asserts that the commission abused its discretion by refusing to exercise continuing jurisdiction over the matter. 112} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, recommending that this court deny the requested writ. (Attached as Appendix A.) Relator filed objections to the magistrate's decision. These objections relate to two alleged factual errors contained within the staff hearing officer's ("SHO") decision: (1) the SHO's statement, based on a statement of facts prepared by commission personnel, that relator had graduated from college; and (2) the SHO's statement that relator had the opportunity to engage in part time work, but did not follow through on the opportunity. {913} As to the latter point, we disagree with relator's assertion that the SHO mischaracterized the opportunity she may have had for work. The SHO's order indicates that she heard testimony on the issue, understood the circumstances, and then weighed the evidence. Taking relator's rehabilitation efforts and job search history into account, it was not an abuse of discretion for the SHO to conclude that relator was capable of vocational retraining. {14} As to whether relator graduated from college, we note that the SHO twice stated that relator was a college graduate. In reality, it appears that relator completed two years of college, but did not graduate. Nevertheless, the magistrate concluded that there was not an abuse of discretion because the SHO could rely on the statement of facts prepared by the commission, relator should have corrected the issue at the hearing, and two-year college programs do exist. The commission defends the