[Cite as State ex rel. Shephard v. Indus. Comm., 2014-Ohio-1744.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                  :
Herman Shephard,
                                                       :
                Relator,
                                                       :                No. 13AP-508
v.
                                                       :            (REGULAR CALENDAR)
The Industrial Commission of Ohio and
Ronnie Shephard's Timber,                              :

                Respondents.                           :


                                         D E C I S I O N

                                      Rendered on April 24, 2014


                Agee, Clymer, Mitchell & Laret, Douglas P. Koppel and
                Robert M. Robinson, for relator.

                Michael DeWine, Attorney General, and Corinna V. Efkeman,
                for respondent Industrial Commission of Ohio.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, J.
        {¶ 1} Relator, Herman Shephard, filed this original action, naming as
respondents the Industrial Commission of Ohio ("commission"), and his former
employer, Ronnie Shephard's Timber. Relator requests a writ of mandamus ordering the
commission to vacate its order denying his application for permanent total disability
("PTD") compensation and to find that he is entitled to that compensation.
        {¶ 2} Pursuant to Civ.R. 53(D) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
No. 13AP-508                                                                              2


of fact and conclusions of law, which is appended hereto. The magistrate recommends
that this court deny the request for a writ of mandamus.
       {¶ 3} Relator sets forth two objections to the magistrate's decision:
                Objection 1:

                The Magistrate's Decision errs by failing to follow the
                Supreme Court's decision in State ex rel. Yellow Freight
                System, Inc. v. Industrical [sic] Comm. of Ohio, 81 Ohio St.3d
                56 (1998).

                Objection 2:

                The Magistrate's Decision errs by finding that the rejection of
                Dr. Roach's report by the SHO was not an abuse of discretion.

       {¶ 4} The arguments raised in relator's objections are essentially the same as
those raised to and addressed by the magistrate. In her decision, the magistrate observed
that a commission staff hearing officer ("SHO") denied PTD compensation based on a
finding that relator was capable of performing some sedentary employment within
specified psychological restrictions. The SHO relied on the medical reports of Dr. Brian
Higgins, as to relator's physical condition, and Dr. Jennifer Stoeckel, as to relator's
psychological condition. The SHO rejected a report by Dr. Lee Roach, concluding that it
was not persuasive. As explained in the magistrate's decision, relator generally asserts
that the commission was required to accept the findings contained in Dr. Roach's report
and that the commission abused its discretion by relying on the reports of Drs. Higgins
and Stoeckel.
       {¶ 5} In his first objection, relator asserts that the magistrate erred by failing to
follow the Supreme Court of Ohio's precedent in State ex rel. Yellow Freight Sys., Inc. v.
Indus. Comm., 81 Ohio St.3d 56 (1998). In Yellow Freight, the Supreme Court held that
the commission does not have the expertise to determine the cause of a medical condition
without medical evidence. Id. at 58. Further, this court has held that, while "[t]he
commission is free to accept or reject medical opinions of record in determining
disability[,] * * * it cannot fashion its own medical opinion from the findings contained in
the medical reports such as might be done by a non-examining physician who is asked by
No. 13AP-508                                                                              3


the commission to review the medical evidence of record." State ex rel. Valentine v.
Indus. Comm., 10th Dist. No. 02AP-579, 2003-Ohio-1784, ¶ 105.
       {¶ 6} Relator argues that, in rejecting Dr. Roach's report, the SHO relied on his
own observations, rather than medical evidence in the record. The SHO could not
properly rely on his own observations to refute relator's suggestion that he may suffer
from mild mental retardation. However, because the SHO relied on the medical evidence
in the reports of Dr. Higgins and Dr. Stoeckel, we agree with the magistrate's conclusion
that the SHO did not render a medical opinion by referring to his own observations. This
court has previously upheld decisions based on medical evidence in which a hearing
officer also referred to his or her own observations. See, e.g., State ex rel. Cartnal v.
Indus. Comm., 10th Dist. No. 12AP-963, 2013-Ohio-5297, ¶ 59 ("All the medical reports
in the record, as well as the SHO's own observations, indicate that relator retains the
ability to walk with the use of the foot brace."); State ex rel. Kroger Co. v. Paysen, 10th
Dist. No. 04AP-810, 2005-Ohio-3787, ¶ 37 (rejecting argument that hearing officer
granted PTD compensation based on his own medical opinion, where the hearing officer
specifically listed medical evidence relied upon before also noting that the claimant's
appearance and manner at the hearing provided additional evidence that she was not
capable of working).
       {¶ 7} In Yellow Freight, the Supreme Court concluded that the commission
abused its discretion by awarding temporary total disability compensation because there
was no evidence attributing the claimant's disability to his industrial injury. Yellow
Freight at 57. As the magistrate notes, in this case, there was medical evidence in the
record supporting the SHO's denial of PTD compensation. Therefore, we reject relator's
objection that the magistrate erred by failing to follow the precedent set by Yellow
Freight.
       {¶ 8} Accordingly, relator's first objection to the magistrate's decision lacks merit
and is overruled.
       {¶ 9} In his second objection, relator asserts that the magistrate erred by finding
that the SHO's rejection of Dr. Roach's report was not an abuse of discretion. Relator
argues that Dr. Roach's report was consistent with Dr. Stoeckel's report and that,
therefore, the SHO abused his discretion by rejecting Dr. Roach's report.
No. 13AP-508                                                                                               4


        {¶ 10} "In any order of the Industrial Commission granting or denying benefits to a
claimant, the commission must specifically state what evidence has been relied upon, and
briefly explain the reasoning for its decision." State ex rel. Noll v. Indus. Comm., 57 Ohio
St.3d 203 (1991), syllabus. However, this court has previously held that "[t]he commission
is not required to list or cite evidence that has been considered and rejected or explain
why certain evidence was deemed unpersuasive." State ex rel. Almendinger v. Indus.
Comm., 10th Dist. No. 12AP-601, 2013-Ohio-5103, ¶ 13. As the magistrate explains, the
commission was not required to accept Dr. Roach's ultimate conclusion.
        {¶ 11} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find that the magistrate has
properly determined the pertinent facts and applied the appropriate law. We therefore
overrule relator's two objections to the magistrate's decision and adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained
therein.1 Accordingly, the requested writ of mandamus is hereby denied.
                                                                  Objections overruled; writ denied.
                              SADLER, P.J., and BROWN, J., concur.
                                         _______________




1 In the second sentence of finding of fact No. 14 of the magistrate's decision, the magistrate refers to Dr.

Wunder's conclusion. It appears that this should be a reference to Dr. Hawkins' conclusion because Dr.
Hawkins' report is the subject of the prior sentence. Subject to this correction, we adopt the magistrate's
decision as our own.
No. 13AP-508                                                                             5


                                    APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel.                        :
Herman Shephard,
                                             :
              Relator,
                                             :
v.                                                                No. 13AP-508
                                             :
The Industrial Commission                                    (REGULAR CALENDAR)
of Ohio and Ronnie Shephard's                :
Timber,
                                             :
              Respondents.
                                             :




                         MAGISTRATE'S DECISION

                             Rendered on December 9, 2013


              Agee, Clymer, Mitchell, & Laret, Douglas P. Koppel and
              Robert M. Robinson, for relator.

              Michael DeWine, Attorney General, and Corinna V.
              Efkeman, for respondent Industrial Commission of Ohio.


                                    IN MANDAMUS

       {¶ 12} Relator, Herman Shephard, 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 relator's application for permanent total
disability ("PTD") compensation and ordering the commission to find that he is entitled to
that compensation.
No. 13AP-508                                                                            6


Findings of Fact:
       {¶ 13} 1. Relator has sustained two work-related injuries during the course of his
employment as a logger and his workers' compensation claims have been allowed for the
following conditions:
              96-556947 - Fracture acetabulum-closed, left; posterior
              dislocated hip-closed, left; enthesopathy of left hip; sciatica;
              sprain lumbosacral; post-traumatic arthritis left hip; major
              depressive disorder; generalized anxiety disorder; anxiety
              induced gastroesophageal reflux disease; L3-4 tear; L4-L5
              tear.

              01-883914 - Sprain of neck; aggravation of degenerative disc
              disease C3 thru T1; cervical disc displacement; cervical
              brachial neuritis; cervical spondylosis; aggravation of pre-
              existing C1-2, C2-3 facet arthropathy.

       {¶ 14} 2. Relator last worked in 2001.
       {¶ 15} 3. In 2006, relator filed for and began receiving Social Security Disability
benefits.
       {¶ 16} 4. Relator filed his first application for PTD compensation on May 3, 2010.
According to his application, relator graduated from high school in 1979, could read,
write, and perform basic math, but not well, had been employed as a logger, and had not
participated in any rehabilitation services.
       {¶ 17} 5. Relator submitted the October 7, 2009 report of his treating physician
Stephen Altic, D.O., who opined that, although his allowed conditions in the 2001 claim
had not yet reached maximum medical improvement ("MMI") relator was otherwise
permanently and totally disabled, stating:
              This is in response to your September 9th letter. As you
              know, I see Mr. Shephard for several claims. As regards the
              claim 96-556947 which is allowed for left hip conditions,
              sciatica, lumbosacral strain and sprain, anxiety, depression,
              and L3-L4, L4-L5 disc problems, he continues to have
              significant low back pain that causes him daily problems and
              functionally impairs him.

              As you know, I see him for another claim, a 2001 claim that
              also is allowed for cervical problems but I believe not
              lumbar. For that other claim regarding his neck, I have
No. 13AP-508                                                                             7


               attested to his temporary total disability. As regards the 1996
               claim regarding his lumbar pathologies, it is my opinion that
               he is functionally impaired by his low back conditions
               allowed in that claim to the extent that he is permanently
               and totally disabled from all gainful remunerative
               employment.

       {¶ 18} 6. Relator was examined by Donald L. Brown, M.D., a psychiatrist. In his
December 11, 2009 report, Dr. Brown identified the allowed conditions in relator's claim
and further noted that he was born deaf in his right ear and had worn a hearing aid in his
left ear. Dr. Brown opined that relator's allowed psychological condition had reached
MMI, opined that he had a 25 percent class 2 moderate level of impairment and that he
could return to his former position of employment or any other sustained remunerative
employment for which he was otherwise qualified and which he could perform from a
physical standpoint.
       {¶ 19} 7. Relator was also examined by Earl F. Greer, Jr., Ed.D. In his June 10,
2010 report, Dr. Greer identified the allowed conditions in relator's claim, discussed his
mental status exam, administered certain psychological testing. Dr. Greer opined that
relator's allowed psychological condition had reached MMI, assessed a 15 percent whole
person impairment, and concluded that relator's degree of emotional impairment would
not currently be expected to solely prevent him from working, that work would be
expected to be therapeutic, enhancing his self worth, but that motivation would be a
significant factor.
       {¶ 20} 8. Relator was also examined by John W. Cunningham, M.D.              In his
June 15, 2010 report, Dr. Cunningham identified the allowed conditions in relator's claim,
identified the medical records which he reviewed, provided his physical findings upon
examination.     Dr. Cunningham ultimately concluded that relator's allowed physical
conditions had reached MMI, assessed a 44 percent whole person impairment, and
concluded that relator could perform sedentary and some light work.
       {¶ 21} 9. Relator's first application for PTD compensation was heard before a staff
hearing officer ("SHO") on August 11, 2010. The SHO rejected Dr. Cunningham's report
because relator's previous physician, Dr. Altic, had opined that his allowed neck condition
was not at MMI. Because the SHO found that relator's allowed physical conditions had
No. 13AP-508                                                                           8


not all reached MMI and his condition remained temporary, the SHO denied relator's first
application for PTD compensation.
       {¶ 22} 10. Before relator filed a second application for PTD compensation, he
participated in some vocational rehabilitation. Relator's file was closed on February 10,
2011, with the following notations:
              Mr. Shephard was referred and assigned for [vocational]
              [rehabilitation] services on 12/14/10.

              ***

              Mr. Shephard participated in one week of job seeking skills
              training during this voc rehab referral.

              On January 27, 2011, I received the recommendation for job
              search and a return to work release with temporary
              restrictions from the physician of record, Dr. Altic.

              On January 28, 2011, I spoke with Mr. Shephard regarding
              the recommendation for services and pending rehab plan.

              On February 1, 2011, Mr. Shephard attended the job seeking
              skills meeting.

              On February 7, 2011, the vocational specialist reported that
              Mr. Shephard canceled the JSST meeting and he was no
              longer interested in participating in vocational rehabilitation
              services. However, he planned to meet with the attorney of
              record prior to making a final decision.

              I contacted Mr. Shephard regarding the above information.
              Mr. Shephard related that he was scheduled to meet with the
              attorney of record on February 8, 2011. I requested Mr.
              Shephard notify me of his final decision.

              On February 10, 2011, I contacted Mr. Shephard for follow-
              up. He reported that he had met with the attorney of record
              and that he was no longer interested in participating in
              vocational rehabilitation. I contacted the attorney of record
              for follow-up on this decision. The attorney representative
              was not available and a message was left requesting a return
              call. I related that the vocational rehabilitation case would be
              closing due to Mr. Shephard was refusing services at this
              time.
No. 13AP-508                                                                            9



        {¶ 23} As such, relator's rehabilitation file was closed because he refused to
participate further.
        {¶ 24} 11. Relator filed his second application for PTD compensation on June 6,
2011.
        {¶ 25} 12. In support of his application, relator submitted the May 4, 2011 report
of Dr. Altic who opined that he was permanently and totally disabled, stating:
              This gentleman continues to complain of functional
              problems and pain in both the neck and the low back. He has
              had copious amounts of conservative treatment regarding
              both his neck and his back and in fact in the past he had a
              cervical fusion performed. He also underwent a left hip
              replacement. Dr. Mavian has recommended lumbar fusion
              for his ongoing problems and at this time we continue to
              await the L5-S1 disc to be allowed in this claim.

              This gentleman was most recently evaluated by me on
              02/28/2011 regarding his lumbar problems. He has
              continued lumbar axial pain with bilateral lower extremity
              pain and paresthesias. On that examination as before there
              were similar findings including limited painful flexion at 45
              degrees and extension at 0-10 degrees with positive straight
              leg raising bilaterally at 35 degrees. There was diminished
              two point discrimination in both lower extremities along an
              L4-5, L5-S1 distribution.

              As regards to this gentleman's 2001 claim involving his neck,
              he was last evaluated by me on 03/24/2011. As I stated he
              had previous cervical fusion but continues to have neck pain.
              He had diminished range of motion with pain in all axes of
              the cervical spine with positive Spurling. He is currently on
              Lyrica for this condition. He had decided against
              participating in voc rehab which I had previously
              recommended. His medications also include Vicodin and
              Ambien.

              Given this gentleman's ongoing cervical and lumbar
              problems referable to this claim and his functional
              impairments due to these conditions, it is my opinion that
              Mr. Shephard is so impaired by these conditions, specifically
              enthesopathy and fracture of the left hip, L3-4 tear, L4-5
              tear, and cervical degenerative disc disease 722.4, cervical
              spondylosis 721.0, disc bulge 722.2 cervical spine, and facet
No. 13AP-508                                                                             10


              arthropathy aggravation C1-C3 721.0 that he is permanently
              and totally disabled from all gainful remunerative
              employment.

       {¶ 26} 13. Relator was examined by Ralph E. Skillings, Ph.D. In his May 17, 2011
report, Dr. Skillings identified the medical records which he reviewed and ultimately
opined that relator had a 16 percent psychological impairment, a 22 percent physical
impairment, for a total whole person impairment of 34 percent. Dr. Skillings did not offer
an opinion as to whether or not relator was capable of performing any work.
       {¶ 27} 14. Relator was examined by James R. Hawkins, M.D. In his August 16,
2011 report, Dr. Hawkins identified the allowed conditions in relator's claim, identified
the medical records which he reviewed. Dr. Wunder concluded that relator's allowed
psychological conditions had reached MMI, he assessed a 14 percent impairment and
opined that relator's allowed psychological conditions did not prevent him from returning
to work.
       {¶ 28} 15. Relator was also examined by Steven Wunder, M.D. In his August 18,
2011 report, Dr. Wunder identified the allowed conditions in relator's claim, identified the
medical records which he reviewed, provided his physical findings upon examination. Dr.
Wunder concluded that relator's allowed physical conditions had reached MMI, assessed
a 42 percent whole person impairment, and opined that relator would be capable of a full
range of sedentary work doing mostly sit-down activities.
       {¶ 29} 16. An employability assessment was prepared by Robert Sproule. In his
September 30, 2011 report, Mr. Sproule indicated that relator had no skills that would
transfer to sedentary work and offered his opinion that part of the reason relator refused
to pursue vocational rehabilitation was because there was no rationale for the particular
plan offered. Mr. Sproule ultimately concluded that relator was not a good candidate for
vocational rehabilitation and that it was reasonable to conclude that he was permanently
and totally disabled from all sustained remunerative employment.
       {¶ 30} 17. Relator's application was heard before an SHO on November 8, 2011.
The SHO relied on the medical reports of Drs. Hawkins and Wunder to conclude that
relator's allowed physical and psychological conditions would not prevent him from
returning to work and that he could perform a full range of sedentary employment.
No. 13AP-508                                                                        11


Thereafter, the SHO provided a lengthy analysis of the non-medical disability factors,
stating:
             The Dictionary of Occupational Titles lists several types of
             job titles that fit within the unskilled, entry-level sedentary
             employment restrictions faced by individuals such as the
             Injured Worker in this claim. These are jobs that do not
             require any transferable skills, or even a high school
             education. Rather, these jobs can be learned and performed
             by individuals while on the job in within a matter of days.
             The following list of jobs is not meant to be exhaustive.
             Rather, it is a partial listing of the kinds of jobs the Staff
             Hearing Officer considers to be current employment options
             for the Injured Worker since they are unskilled entry-level
             types of employment that fall within the allowed physical
             restrictions of the Injured Worker. In addition, these jobs do
             not require transferable skills or a rehabilitation program.

             These job titles include, but are not limited to: Addresser,
             Mailing House; Assembler, Small Products; Assembly Press
             Operator; Bench Assembler; Bench Hand; Election Clerk;
             Electric Accessories Assembler; Electronics Worker; Final
             Assembler, Optical Goods; Food Checker; Gluer; Greeter;
             Hand Packager; Information Clerk; [I]nspector, Eye Glass
             Frames; Lens [I]nspector; Odd Piece Checker; Order Clerk,
             Food and Beverage; Paint Spray Inspector; Production
             Inspector; Semi Conductor Inspector; Small Products
             Inspector; Surveillance System Monitor; Telephone Solicitor;
             Ticket Seller and Toy Assembler. In the prospective
             vocational rehabilitation plan declined by the Injured
             Worker, the Injured Worker was to be trained as an Office
             [C]lerk, Dispatcher and Rental Clerk.

             The Injured Worker is currently 50 years of age. The Staff
             Hearing Officer finds that the Injured Worker's age is overall
             viewed as a positive vocational asset. At 50 years old, he still
             has approximately 15 years before reaching the standard
             retirement age of 65. The Injured Worker's age in and of
             itself clearly would not prevent him from obtaining and
             performing sustained remunerative employment consistent
             with jobs identified above and in his tentative vocational
             rehabilitation plan as being a current employment options.

             The Injured Worker has a high school education, and
             graduated in 1979 from Oak Hill High School The Staff
             Hearing Office[r] finds that the Injured [W]orker's level of
No. 13AP-508                                                                  12


           education is overall viewed as a positive vocational factor.
           The Injured Worker is able to read, write and perform basic
           math. The Injured Worker's educational level in combination
           with the ability to read, write and perform basic math would
           assist him in obtaining and performing the entry-level
           unskilled type of employment consistent with jobs previously
           identified as being current employment options for him. As
           previously discussed, these are jobs that do not require any
           transferable skills or even a high school education. Rather,
           these jobs can be learned and performed by individuals while
           on the job and within a matter of days.

           The Injured Worker's prior work history includes working
           for 20 years in his family's logging business as a Logger,
           Skidder Operator, and Truck Driver. The Staff Hearing
           Officer finds that the Injured Worker's prior work history is
           overall viewed as being a positive vocational asset. The
           Injured Worker has through his past work history
           demonstrated the ability to work well with others and
           maintain steady employment. This demonstrated work
           ability was performed in settings similar to some of the job
           titles already identified as being current employment options
           for the Injured Worker.

           The Staff Hearing Officer finds it to be a significant factor in
           denying this application that, although the Injured Worker
           was referred to vocational rehabilitation 4 times on 4
           separate occasions, he failed to complete the program either
           for reasons of medical instability and/or his decision to
           simply not participate in the program as of February, 2011.
           This decision was despite the fact that he was accepted into
           the vocational rehabilitation program and found feasible for
           vocational services. At hearing, the Injured Worker testified
           that this decision not to participate in vocational
           rehabilitation services was due to the fact that he had no
           transportation. However, Staff Hearing Officer found no
           evidence in the file that the Injured Worker conveyed this
           reason to vocational rehabilitation services so that other
           arrangements could be accommodated or other
           contingencies could be explored. Therefore the Staff Hearing
           Officer is not persuaded that the Injured Worker has
           exhausted all efforts to improve his employment potential.
           Since permanent total disability is an award of last resort,
           the Staff Hearing Officer finds the Injured Worker's failure to
           participate in the program despite having been accepted
           supports a finding that the Injured Worker is not
No. 13AP-508                                                                            13


              permanently and totally disabled            from     sustained
              remunerative employment at this time.

       {¶ 31} 18. Relator filed his third application for PTD compensation, which is the
subject of this mandamus action, on September 19, 2012.
       {¶ 32} 19. In support of his application, relator submitted the June 12, 2012
psychological evaluation performed by Lee Roach, Ph.D. Dr. Roach administered the
Wechsler Adult Intelligence Scale, IV, and the Wide Range Achievement Test. Dr. Roach
specifically noted that, although relator was "cooperative with the evaluation process [and
his] [i]nterest and motivation varied as did attention and concentration." According to
Dr. Roach, relator's Wechsler Adult Intelligence Scale places him at the mentally deficient
level of overall intellectual functioning which is below borderline functioning. Further,
Dr. Roach indicated that the results of the Wide Range Achievement Test reflect limited
success in all academic areas. Dr. Roach determined that relator's education cannot be
viewed as a positive vocational factor and that he would not be a good candidate for any
vocational rehabilitation. Dr. Roach concluded:
              Therefore, I conclude that the option for Mr. Shephard to
              pursue more extensive education or skills enhancement
              training is not feasible. He does not have any transferable
              skills from his previous employment. His allowed medical
              conditions with chronic pain and allowed psychological
              conditions with below borderline intellectual functioning
              serve as work prohibitive barriers. The current test results
              serve as a negative work prohibitive vocational factor.
              His intellectual functioning and depressive and anxiety
              symptoms as well as limited academic skills serves to impair
              his ability to obtain or maintain employment. Therefore, Mr.
              Shephard is permanently and totally disabled from all
              sustained remunerative employment.

(Emphasis sic.)
       {¶ 33} 20. Relator was examined by Jennifer Stoeckel, Ph.D. In her December 12,
2012 report, Dr. Stoeckel identified the allowed conditions in relator's claim, discussed
the medical records which she reviewed, and administered the Minnesota Multiphasic
Personality Inventory-2.    According to Dr. Stoeckel, the evaluation to the testing
suggested a moderately exaggerated profile. Dr. Stoeckel noted that test results were
No. 13AP-508                                                                                                14


invalid due to elevations suggesting exaggeration of symptomology. Intellectually, Dr.
Stoeckel suspected borderline to low average abilities and possible learning disabilities.
Overall, Dr. Stoeckel opined that relator's allowed psychological conditions had reached
MMI, she assessed a 20 percent class 3 moderate impairment, and opined that relator was
capable of working with the following limitations:
                The claimant is incapable of returning to his prior position of
                employment due to diminished concentration and focus. Per
                the claimant's description, he worked with machinery. He
                would be capable, however, of a low stress occupation that
                did not require considerable interpersonal contact or direct
                supervision. His concentration for task completion is
                reasonable if the work were repetitive in nature. However, he
                would have difficulty with highly complex activity or work
                requiring sustained focus and concentration. There is no
                indication that he would not be capable of relating to
                authority figures or getting along with coworkers, but
                describes himself as more isolated and withdrawn. He could
                work under a mild level of stress and repetitive activities at
                an independent level.

        {¶ 34} 21. Relator was also examined by Brian E. Higgins, D.O. In his January 3,
2013 report, Dr. Higgins identified the allowed conditions in relator's claim, discussed the
medical records which he reviewed, provided his physical findings upon examination. Dr.
Higgins concluded that relator's allowed conditions had reached MMI, assessed a 35
percent whole person impairment, and opined that relator was capable of performing at a
sedentary work level, stating:
                I do believe Mr. Shepherd [sic] is capable of sedentary work.
                This would be essentially a sit down job which would involve
                spending most of the time sitting with limited walking and
                standing for brief periods of time such as less than 15
                minutes.

        {¶ 35} 22. Relator's application was heard before an SHO on February 20, 2013.2
The SHO relied on the medical reports of Drs. Higgins and Stoeckel to conclude that
relator was able to perform at a sedentary work level provided that the work was low
stress, routine unskilled work that would not require direct supervision or much public

2There are two orders in the record, one for each claim number. Although virtually identical, the wording
used by the SHO varied slightly.
No. 13AP-508                                                                            15


contact.' Thereafter, the SHO addressed the non-medical disability factors and found that
relator's age of 51 years was an asset because he was still young enough to either directly
reenter the workforce or seek employment-enhancing assistance if so motivated. The
SHO also found that relator's high school education was an asset to reemployment. The
SHO noted that relator indicated on his application that he could read, write, and perform
basic math, and then addressed the report of Dr. Roach. The SHO determined that report
was not persuasive, stating in one order:
              Injured Worker's counsel argued that evidence they have
              procured since the last denial of Injured Worker's prior IC-2
              applications (06/12/2012 report of Dr. Roach) indicates that
              the Injured Worker is mildly mentally retarded. The Staff
              Hearing Officer does not find that physician or evidence to
              be especially persuasive in that it is inconsistent with prior
              psychological examinations in file and is conspicuous since
              Injured     Worker's    claim    history,    physically   and
              psychologically, has been stable since the prior IC-2
              applications that were previously denied by Staff Hearing
              Officer order. Further, the Staff Hearing Officer found
              Injured Worker's testimony at hearing today to be persuasive
              in that Injured Worker was able to interact in an appropriate
              manner capable of expressing his thoughts and feelings in a
              clear and understandable way. The Staff Hearing Officer
              concludes that Injured Worker's overall presentation is such
              that his intellectual level of functioning would at least be
              adequate for many of the jobs that he would otherwise be
              capable of performing from a psychological and physical
              standpoint.

The SHO worded the rejection of this report as follows in the second order:
              Claimant's counsel argued that recently obtained evidence
              (06/12/2012 Roach report) indicates that the claimant is
              mildly mentally retarded and that this should help serve to
              grant his request for permanent and total disability benefits.
              The SHO rejects this argument. Claimant has twice before
              filed IC-2 applications. When considering the psychological
              reports associated with those prior applications (06/10/2010
              report of Dr. Greer and 08/16/2011 report of Dr. Hawkins)
              together with the report of Dr. Stoeckel referenced above, the
              SHO finds that the characterization of Claimant's intellectual
              capacity by each physician over time has remained
              remarkably consistent - low average intelligence - and that
              each physician has also opined a retained psychological
No. 13AP-508                                                                         16


             capacity to reenter the workforce. The SHO also concludes
             that this consistency indicates that claimant's mental
             capacity has not recently or suddenly deteriorated in the
             manner implied by the Claimant. The SHO further finds that
             since the Claimant has previously been able to successfully
             function in his life both occupationally and personally with
             this level of mental capability, it is reasonable to conclude
             that he will likewise be able to so function in the future as
             well. The SHO also found claimant's presentation at hearing
             to be consistent with this conclusion - that is, he was able to
             articulate his thoughts and feelings in a clear, reasonable and
             understandable manner.

Thereafter, the SHO determined that relator's work history was also an asset because it
indicated that he ostensively learned his prior job duties on the job and that this
demonstrated the ability to acquire new job skills. Thereafter, the SHO addressed
relator's failure to seek any additional vocational rehabilitation after 2011 and
determined that relator had not made a good effort to improve his skills, stating:
             Finally, the Staff Hearing Officer notes that as noted earlier
             Injured Worker last worked in 2001 at the very young age of
             39. The Staff Hearing Officer further notes that in the 12-
             year interim Injured Worker has made only one effort at
             rehabilitation and that that effort resulted in a closure that
             was due to him no longer being interested in participating in
             vocational rehabilitation services (closure report dated
             02/15/2011). The Staff Hearing Officer further notes that
             Injured Worker's own treating physician at the time, Dr.
             Altic, indicated in a report dated 05/04/2011 that he
             recommended Injured Worker's participation in such a
             program. The Staff Hearing Officer notes that the Ohio
             Supreme Court has previously held that the Commission
             may consider not only those skills and abilities which an
             individual actually possesses but also those skills and
             abilities which might have been developed had Injured
             Worker made the effort ([State ex rel. Speelman v. Indus.
             Comm., 73 Ohio App.3d 757 (10th Dist.1992)] and [State ex
             rel. B.F. Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525
             (1995)]). In this case, the Staff Hearing Officer finds that the
             Injured Worker despite having the opportunity and youth on
             his side failed to meet his obligations in this regard. This is
             yet another basis for denial of his application.
No. 13AP-508                                                                               17


       {¶ 36} The SHO found that relator was capable of performing some sedentary
employment within the psychological restrictions set forth by Dr. Stoeckel, found that his
vocational factors were overall positive, and that relator's failure to seek additional
vocational rehabilitation should be held against him and denied his application for PTD
compensation.
       {¶ 37} 23. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 38} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 39} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 40} 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 rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). 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., 26 Ohio St.3d 76 (1986). 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., 29 Ohio St.3d 56 (1987). 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., 68 Ohio St.2d 165 (1981).
       {¶ 41} The relevant inquiry in a determination of permanent total disability is
claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic
v. Indus. Comm., 69 Ohio St.3d 693 (1994). 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 non-medical factors. State ex rel. Stephenson
No. 13AP-508                                                                                  18


v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's medical capacity to work is
not dispositive if the claimant's non-medical factors foreclose employability. State ex rel.
Gay v. Mihm, 68 Ohio St.3d 315 (1994). The commission must also specify in its order
what evidence has been relied upon and briefly explain the reasoning for its decision.
State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991).
           {¶ 42} Relator's entire argument focuses on the commission's rejection of Dr.
Roach's report. Relator asserts that the SHO improperly substituted his medical opinion
by evaluating and discounting Dr. Roach's findings. Relator further asserts that the
commission was required to accept Dr. Roach's findings with regard to his intellectual
ability.     Specifically, relator contends that Dr. Roach's report is consistent with Dr.
Stoeckel's report especially considering that Dr. Stoeckel noted that relator had taken
special education classes in high school for reading.
           {¶ 43} As noted in the findings of fact, this was relator's third application for PTD
compensation.         When the commission denied his application the second time, in
November 2011, the commission specifically listed numerous jobs relator could perform
which did not require transferable skills or a rehabilitation program.            Although Dr.
Roach's testing revealed limited intellectual abilities, there is nothing in his report which
would indicate that relator could not perform unskilled work. Further, as the commission
noted, Dr. Roach's report was contrary to the previous psychological reports and the SHO
explained why he was rejecting that report. At oral argument, relator's counsel argued
that the SHO did not list the contrary psychological evidence; however, as counsel noted,
there are two orders in the record denying relator's application. In one, the SHO did not
identify the contrary evidence but, in the other order, the SHO did.
           {¶ 44} Even if Dr. Roach's intellectual testing is an accurate reflection of relator's
ability, the fact remains that relator did graduate from high school and did maintain a job
as a logger for 22 years. Mr. Sproule, who prepared an employability assessment in 2011,
indicated that relator's high school education was a positive vocational factor. Further,
the magistrate specifically notes that relator's vocational rehabilitation file was closed
because relator was no longer interested in services.           To the extent that Dr. Roach
indicates in his report that "vocational rehabilitation services have been exhausted based
on the above transferable skills analysis," this statement is not accurate.               Again,
No. 13AP-508                                                                             19


rehabilitation was terminated at relator's request and not because of a negative
transferable skills analysis. Further, the commission was not required to accept Dr.
Roach's ultimate conclusion, that relator could not enhance his skills. The fact that
relator was able to participate in special education classes in high school is some evidence
that a person with limited intellectual functioning can participate and learn. As the SHO
stated, relator's "overall presentation is such that his intellectual level of functioning
would at least be adequate for many of the jobs that he would otherwise be capable of
performing." Although relator asserts that the SHO rendered a medical opinion, the
magistrate disagrees.   While Dr. Roach opined that relator's intellectual functioning
rendered him incapable of performing some sustained remunerative employment, the
SHO disagreed. The SHO did not render a medical opinion; instead, the SHO rejected Dr.
Roach's ultimate conclusion.
       {¶ 45} Relator is asking this court to reweigh the evidence and to find his evidence
more persuasive. However, that is not the job of this court.
       {¶ 46} Finding that the commission's order is supported by some evidence, it is
this magistrate's decision that this court should deny relator's request for a writ of
mandamus.


                                          /S/ MAGISTRATE
                                         STEPHANIE BISCA BROOKS

                               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).
