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State ex rel Poneris v. Industrial Commission of Ohio11/22/2005
(REGULAR CALENDAR)
DECISION
IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION
{ } In this original action, relator, Eleftherios Poneris, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its September 18, 2004 order denying his motion to adjust the start date for his permanent total disability ("PTD") award. Relator seeks to have the start date changed from May 15, 2003 to June 9, 2001, based on a June 25, 2004 report from Dr. John M. Roberts.
{ } Relator experienced several industrial accidents while employed as a bridge painter for M & J Painting Co., Inc. The first accident occurred on October 14, 1990. The second accident occurred on October 5, 1993, and the final accident took place on July 28, 1995. The commission allowed claims relating to each occurrence: claims 90-36221, 93-31497, and 95-628752 respectively.
{ } Based on his allowed conditions, relator filed an application for PTD compensation on November 6, 2000. A staff hearing officer ("SHO") heard relator's application on May 9, 2001. In a decision mailed on May 19, 2001, the SHO denied relator's application upon finding that he was capable of performing sustained remunerative employment and, therefore, was not permanently and totally disabled. Relator filed a request for reconsideration with the commission, but the request was denied on October 18, 2001.
{ } On February 28, 2003, relator moved for additional claim allowances regarding claim No. 95-628752. The commission allowed the additional claim for "pseudoarthrosis; failed fusion, lumbar spinal; acquired spondylolisthesis."
{ } On June 9, 2003, relator filed a new application for PTD compensation . Relator presented a May 15, 2003 report from his treating physician, Dr. Martin L. McTighe, in support of his application. On June 9, 2003, Dr. Steven S. Wunder examined relator at the commission's request. Subsequent to the examination, Dr. Wunder submitted his report, including a physical strength rating form, to supplement the record.
{ } A staff hearing officer heard relator's application on January 7, 2004. On January 27, 2004, the SHO issued an order granting PTD compensation beginning May 15, 2003. The SHO based the award on the reports of Drs. McTighe and Wunder, but specifically declined to rely on a July 31, 2001 report or treatment letter submitted by Dr. John Roberts. The hearing officer stated that he did not consider the report because it did not specifically indicate that relator was permanently and totally disabled. Further, the report had already been considered as an attachment to relator's motion to reconsider the commission's denial of the first application for PTD compensation.
{ } On June 18, 2004, relator moved for an adjustment of the start date of the PTD award. Relying on a new report by Dr. Roberts, dated June 25, 2004, relator requested that the start date be changed to June 9, 2001. On September 15, 2004, the matter was heard by an SHO. In an order mailed on September 18, 2004, the SHO denied relator's request. The SHO stated:
[Relator's] argument was previously advanced at the hearing of 1/07/2004, was considered and was rejected by the Hearing Officer per the permanent total disability order issued 01/07/2004. [That] order clearly indicates the reason why a start date of 06/09/2001 is not appropriate. The 06/25/2004 report from Dr. Roberts gives no basis for his opinion that should start as of July, 1999.
{ } On October 4, 2004, relator filed for reconsideration. On November 20, 2004, the commission denied relator's request as untimely filed. Relator filed this
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