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June 2, 2009

Appeals Court Upholds Magistrate's Ruling In Industrial Commission Case
Keith Arnold, Daily Reporter Staff Writer
Dayton Legal News

A 10th District Court of Appeals panel dispensed with a 74-year-old Heath man's appeal of the Industrial Commission of Ohio's denial of his application for permanent total disability last week after the man objected to an earlier magistrate ruling.

Noting Jack Bradley presented no new arguments in his objections nor specifically indicated how Franklin County Court of Common Pleas Magistrate Stephanie Brooks erred in her analysis, appellate judges considered each of the three errors Bradley assigned to the commission's finding.

The man, who also sought the appellate court to compel the commission to vacate its order, argued that the commission was mistaken to find he was able to return to his former position of employment, that the staff hearing officer erred when he listed jobs he claimed Bradley could perform and that he does not possess the skills to perform the job of a receptionist - a job the staff hearing officer determined was consistent with his work history.

"After an examination of the magistrate's decision, an independent review of the evidence, and due consideration of relator's objections, we overrule relator's objections," 10th District Judge Susan Brown wrote for the court. "Accordingly, we adopt the magistrate's decision as our own with regard to the findings of fact and conclusions of law, and we deny relator's request for a writ of mandamus."

Bradley sustained work-related injuries including a deep laceration on the right ear, abrasion on the left hand, contusion on the left foot with multiple fractures, a severely sprained right ankle and related post traumatic arthritis, according to case summary. He submitted an application for permanent total disability compensation supported by the Oct. 9, 2000 report of Dr. James Lundeen Sr., who concluded his physical limitations related to standing, walking, balancing, stairs, and limited grip strength in his left hand.

On Jan. 2, 2002, relator withdrew his application for permanent total disability compensation because he had returned to work.

A second application for permanent total disability compensation was filed Aug. 21, 2007. The February 15, 2007 doctor's report indicated that relator could lift six pounds for approximately three hours a day, and three pounds for approximately six hours a day; stand and walk between one and two hours a day, and walk without interruption for five minutes; sit for a total of three to four hours a day and, without interruption for 30 to 45 minutes. Bradley could occasionally climb, balance, stoop, crouch, kneel, and crawl; and relator should avoid heights, moving machinery, cold temperatures, high humidity with cold, and vibrating floor surfaces.

After an examination by the commission's doctor, it was determined Bradley's physical conditions had reached maximum medical improvement and assessed an 11 percent whole person impairment for all the allowed conditions. The doctor concluded he could perform at a sedentary work level.

A staff hearing officer concluded that Bradley was capable of returning to one of his prior jobs as a home improvement salesman, prompting Bradley's appeal to the common pleas court.

"Relator contends that the commission abused its discretion when it concluded that he could perform some sustained remunerative employment," Brooks wrote in her Feb. 19, 2009 decision. "Relator argues that the commission did not obtain any vocational evidence and that there was no basis to support the commission's conclusion that he could perform any of the jobs identified in the commission's order.

"Relator cites the decisions in State ex rel. Bruner v. Indus. Comm. (1997), 77 Ohio St.3d 243, State ex rel. Pierce v. Indus. Comm. (1997), 77 Ohio St.3d 275, and State ex rel. Mann v. Indus. Comm. (1998), 80 Ohio St.3d 656, in support of his argument that the commission manufactured transferable skills where there are none and failed to adequately explain its conclusion that relator was capable of performing any sedentary work. ..."

His education level and work experience tended to be higher and more extensive than that of the subjects in the cases cited.

With regard to Bradley's argument that the commission had no vocational evidence upon which it could rely, Brooks wrote, "it must be remembered that the commission is the ultimate evaluator of the disability factors pursuant to State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167.

"As such, the commission was not required to obtain, nor required to rely on, any specific vocational evidence."

An inquiry seeking comment from Bradley's attorney remained unanswered as of press time.

Fellow 10th District Judges William Klatt and Patrick McGrath joined Brown to form the majority.

The case is cited as State ex rel. Bradley v. Jack A. Bradley Constr. Co., 2009-Ohio-2454.