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State ex rel Snell v. Manor Care of Cincinnati6/4/2002
(REGULAR CALENDAR)
DECISION
Butkovich, Schimpf, Schimpf & Ginocchio Co., L.P.A., and Robert E. Hof, for relator.
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION TYACK, P.J.
. Sara Snell filed this action in mandamus seeking a writ which compels the Industrial Commission of Ohio ("commission") to vacate its order denying her permanent total disability ("PTD") compensation and which compels the commission to conduct additional proceedings and to issue a new order granting or denying the compensation.
. In accord with Loc.R. 12(M), the case was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision which includes a recommendation that we issue a writ directing the commission to conduct further proceedings. (Attached as Appendix A.)
. Manor Care of Cincinnati, Inc., ("Manor Care") which is Ms. Snell's former employer has filed objections to the magistrate's decision. Counsel for Ms. Snell has filed a memorandum in response. The case is now before the court for a full, independent review.
. Sara Snell was injured in 1979. Her workers' compensation claim has been recognized for cervical and shoulder sprain/strain, degenerative disc disease and cervical spondylosis.
. Nineteen years later, she filed her application for PTD compensation. Her application was supported by a report from Mark Spears, D.C.
. In October 1998, Ms. Snell was examined by commission specialist Kenneth Hanington, M.D. Dr. Hanington found Ms. Snell capable of sustained remunerative employment.
. Dr. Spears and Dr. Hanington disagree as to Ms. Snell's medical capabilities, especially as to her ability to engage in the kind of activities frequently encountered in sedentary work. Because of the difference of opinion as to Ms. Snell's ability to perform sedentary-work-related activities, the magistrate found substantial discrepancies in their opinions and recommended that a writ be granted to compel a deposition of Dr. Hanington.
. Manor Care argues in its objections that, taken as a whole, the two opinions are not different enough to meet the "substantial disparity" standard. However, taken as a whole, the two reports are substantially disparate because they reach different conclusions about Ms. Snell's ability to perform sedentary work. This disparity related to disparate medical findings about specific capabilities, such as range of motion and use of the hands to manipulate items over sustained periods of time. We agree with the magistrate's finding that a substantial disparity was demonstrated here.
. As a result, we overrule the objections to the magistrate's decision. We adopt the findings of fact and conclusions of law contained in the magistrate's decision. We issue a writ of mandamus which compels the commission to vacate its order denying PTD compensation for Ms. Snell, and compels the commission to conduct further appropriate proceedings to determine Ms. Snell's entitlement to PTD compensation.
Objections overruled; writ granted.
LAZARUS and DESHLER, JJ., concur.
APPENDIX A
IN MANDAMUS
Relator, Sara Snell, filed this original action in mandamus asking the court to issue a writ compelling respondent Industrial Commission of Ohio to vacate its order denying compensation for permanent total disability ("PTD") and to issue an order granting her motion to take depositions of the commission's independent experts, followed by a new PTD hearing. Findings of Fact:
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