[Cite as State ex rel. Lacroix v. Indus. Comm., 2013-Ohio-4881.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Sherwood Lacroix,              :

                 Relator,                            :
                                                                      No. 12AP-931
v.                                                   :
                                                                   (REGULAR CALENDAR)
Industrial Commission of Ohio                        :
and GMRI, Inc.,
                                                     :
                 Respondents.
                                                     :




                                            D E C I S I O N

                                    Rendered on November 5, 2013



                 Nager, Romaine & Schneiberg Co. L.P.A., Jerald A.
                 Schneiberg, Jennifer L. Lawther and Michael A. Liner, for
                 relator.

                 Michael DeWine, Attorney General, and Justine S. Casselle,
                 for respondent Industrial Commission of Ohio.

                 Reminger Co., LPA, Melvin J. Davis, Ronald Fresco and
                 Charles Alusheff, for respondent GMRI, Inc.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

O'GRADY, J.

        {¶ 1} In this original action, relator, Sherwood Lacroix, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order denying his application for permanent total disability ("PTD") compensation and
to enter an order granting said compensation.
No. 12AP-931                                                                             2


          {¶ 2} Pursuant to Civ.R. 53 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
of fact and conclusions of law, which is appended hereto. The magistrate concluded the
commission abused its discretion in denying PTD compensation because: (1) Dr.
Johnston's vocational report improperly omitted the "seated position" limitation in
Lacroix's ability to perform sedentary work; and (2) Dr. Johnston erred in stating that
Lacroix can work with his arms in front of him while standing because he is dependent on
support from his walker in the standing position. Accordingly, the magistrate
recommended that the court issue a writ of mandamus.
          {¶ 3} Both the commission and GMRI have filed objections to the magistrate's
decision. The commission offers the following objections to the magistrate's conclusions
of law:
                (1.) The Magistrate erred in concluding that the
                commission's reliance on Dr. Johnston's report was an abuse
                of discretion, as the commission only agreed with his
                assessment of Lacroix's academic and vocational abilities
                and potentials and did not rely on his assessment of possible
                jobs Lacroix can perform.

                (2.) The Magistrate fails to analyze whether the record
                contains "some evidence" to support the commission's denial
                of Lacroix's PTD application.

          {¶ 4} GMRI raises similar issues in the following two objections:

                Objection No. 1: The Magistrate Erred In Concluding That
                The Commission's Order Denying PTD Compensation Was
                An Abuse Of Discretion.

                Objection No. 2: The Magistrate Erred Because Requesting
                The Commission To Issue A New Order Is Futile And Denial
                Of PTD Compensation Is Inevitable.

For ease of discussion, we will discuss the commission's second objection and GMRI's two
objections together. None of the parties have filed objections to the magistrate's findings
of fact and, following an independent review of the record, we adopt those findings as our
own.
No. 12AP-931                                                                                 3


       {¶ 5} To be entitled to a writ of mandamus, Lacroix must demonstrate a clear
legal right to the requested relief, a corresponding clear legal duty on the part of the
commission to provide the requested relief, and the lack of an adequate remedy in the
ordinary course of law. State ex rel. Ervin v. Barker, 136 Ohio St.3d 160, 2013-Ohio-3171,
¶ 9. To establish the requisite clear legal right and clear legal duty, a relator challenging a
commission decision must establish that the commission abused its discretion by entering
an order that is not supported by some evidence in the record. State ex rel. Roberts v.
Indus. Comm., 10th Dist. No. 12AP-298, 2013-Ohio-287, ¶ 4; State ex rel. Baker v. Coast
to Coast Manpower, L.L.C., 129 Ohio St.3d 138, 2011-Ohio-2721, ¶ 9 ("mandamus is the
proper method to examine whether the commission has abused its discretion"). "If the
record contains some evidence to support the commission's findings, there has been no
abuse of discretion and a court has no basis to award a writ of mandamus." Id.; see also
State ex rel. AutoZone, Inc. v. Indus. Comm., 117 Ohio St.3d 186, 2008-Ohio-541, ¶ 14.
"The burden on relator is a heavy one." State ex rel. Stevens v. Indus. Comm., 10th Dist.
No. 10AP-1147, 2012-Ohio-4408, ¶ 7.
       {¶ 6} In their objections, respondents claim that Lacroix's request for a writ of
mandamus should be denied because there is some evidence in the administrative record
to support the commission's decision to deny his application for PTD compensation.
       {¶ 7} PTD is "the inability to perform sustained remunerative employment due to
the allowed conditions in the claim." Ohio Adm.Code 4121-3-34(B)(1); State ex rel.
Guthrie v. Indus. Comm., 133 Ohio St.3d 244, 2012-Ohio-4637, ¶ 8. In determining a
claimant's ability to perform sustained remunerative employment, the commission must
first consider the medical evidence and determine the claimant's residual functional
capacity. Roberts at ¶ 5, citing Ohio Adm.Code 4121-3-34(B)(4). If the commission finds
that the claimant is able to engage in sustained remunerative employment, it must then
consider non-medical disability factors and vocational evidence, i.e., age, education, work
record, and all other relevant factors, including physical, psychological, and sociological
factors. Id., citing Ohio Adm.Code 4121-3-34(D)(2)(b) and (c), 4121-3-34(B)(3); State ex
rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987).
       {¶ 8} The commission relied on Dr. Shtull's medical report to establish that
Lacroix is capable of "most sedentary positions of employment" and "engaging in
No. 12AP-931                                                                                    4


vocational rehabilitation and skill enhancement efforts." (Magistrate's Decision, at ¶ 26.)
For Lacroix's residual functional capacity, Dr. Shtull determined that he is "capable of
full-time sustained remunerative employment in the sedentary category, in the seated
position, with the following additional restrictions: 1) The ability to change positions as
necessary; 2) No foot pedal operation with the lower extremities; 3) No exposure to
vibratory forces." (Magistrate's Decision, at ¶ 24.) As the magistrate acknowledged in his
decision, Lacroix does not challenge the commission's reliance on Dr. Shtull's report.
       {¶ 9} Instead, Lacroix claims that the commission abused its discretion by relying
on Dr. Johnston's vocational report. Lacroix points out that Dr. Johnston's report relied
on Dr. Shtull's medical report, but improperly omitted the reference to the "in the seated
position" restriction noted by Dr. Shtull. Dr. Johnston's omission of this restriction in
Lacroix's residual functional capacity led to further error in suggesting he could perform
unskilled positions that may require working with his arms while standing, which was
precluded by Dr. Shtull's medical report.
       {¶ 10} Nevertheless, for the reasons that follow, any deficiencies in Dr. Johnston's
vocational report do not vitiate the salient fact that there remains some evidence in the
record to support the commission's denial of Lacroix's application for PTD compensation.
       {¶ 11} First, there is no requirement that a vocational expert exhaustively list all
the medical restrictions when referring to a medical report. State ex rel. Arthur v. Indus.
Comm., 10th Dist. No. 05AP-1018, 2006-Ohio-6776, ¶ 45. And the commission's reliance
on a vocational report that, in part, fails to list all medical restrictions or includes jobs that
require physical activities in contravention of medical restrictions, does not necessarily
constitute an abuse of discretion. Id. at ¶ 13, 15.
       {¶ 12} Second, the commission is considered to be the expert on PTD matters.
Guthrie at ¶ 8. It is the exclusive evaluator of disability and is not bound to accept
vocational evidence, even if it is uncontroverted. State ex rel. Jackson v. Indus. Comm.,
79 Ohio St.3d 266, 270 (1997); State ex rel. Rogers v. Salmon & Sons, Inc., 10th Dist. No.
12AP-113, 2013-Ohio-284, ¶ 10.         The commission may credit submitted vocational
evidence, but because it is the expert, this evidence is neither critical nor necessary.
Jackson at 271; State ex rel. Scarberry v. Comfort Specialist, 10th Dist. No. 12AP-707,
2013-Ohio-3164, ¶ 6. Here, as in Scarberry, the commission identified the non-medical
No. 12AP-931                                                                             5


factors it considered—Lacroix's age, education, and work history—and, in addition, it
expressly cited one of Lacroix's previous jobs (managing a video game store for three
years), which was not mentioned in the submitted vocational reports.            Thus, the
commission undertook its own independent evaluation of the pertinent vocational factors
without completely relying on Dr. Johnston's vocational report.
       {¶ 13} Third, the commission is free to accept all, some, or none of the findings of
any vocational report. State ex rel. Culbert v. Indus. Comm., 10th Dist. No. 11AP-172,
2012-Ohio-1217, ¶ 3. Although the commission found that Dr. Johnston's vocational
report offered "the most accurate assessment" of Lacroix's "academic and vocational
abilities and potentials," it ultimately merely concurred in Dr. Johnston's conclusion that
Lacroix "is capable of a return to the workforce." (Magistrate's Decision, at ¶ 26.) There
is no evidence that the commission credited the portion of Dr. Johnston's report citing
potential jobs in which working with his arms might be required while standing. Notably,
certain jobs cited in Dr. Johnston's vocational report, e.g., surveillance system monitors
and seated cashiers, do not appear to require individuals to work with their arms directly
in front of them while standing. Nor was Dr. Johnston's discussion of the non-medical
factors based on a flawed interpretation of Dr. Shtull's medical report.
       {¶ 14} Finally, even if the commission had rejected Dr. Johnston's vocational
report completely, it could have relied on Dr. Shtull's medical report directly and still
determined that Lacroix is capable of sedentary work with the specified restrictions. In
State ex rel. Baker v. Formica Corp., 10th Dist. No. 05AP-137, 2005-Ohio-6373, we
sustained similar objections to a magistrate's decision that recommended denying a writ
of mandamus to vacate an order denying PTD compensation based on the commission's
reliance on a flawed vocational report that did not account for all of the claimant's
physical restrictions. We held that the commission is the exclusive evaluator of non-
medical factors and that because it could have rejected the contested vocational report
completely and still relied on the medical report directly, the commission's decision
denying PTD compensation was supported by some evidence and not subject to reversal
by a writ of mandamus. Id. at ¶ 7.
       {¶ 15} Therefore, we find that any error in a portion of Dr. Johnston's vocational
report does not justify the requested extraordinary relief in mandamus. Dr. Shtull's
No. 12AP-931                                                                           6


medical report and the remainder of Dr. Johnston's vocational report constitute some
evidence supporting the commission's denial of Lacroix's PTD application. Accordingly,
the commission's second objection and GMRI's two objections are sustained.
      {¶ 16} The commission also argues that the magistrate erred in concluding that its
reliance on Dr. Johnston's report was an abuse of discretion. By so holding, we need not
address the commission's first objection and render it moot. Baker at ¶ 8.
      {¶ 17} For these reasons, and based on our independent review of the record, we
find that the magistrate has properly determined the pertinent facts and adopt them as
our own. In accordance with our decision, however, we sustain the commission's second
objection and GMRI's two objections to the magistrate's conclusions of law, render the
commission's first assignment of error moot and reject the magistrate's recommendation
to issue a writ of mandamus. Accordingly, the requested writ of mandamus is denied.
                                                                    Objections sustained;
                                                               writ of mandamus denied.

                         DORRIAN and T. BRYANT, JJ., concur.

               T. BRYANT, J., retired, formerly of the Third Appellate
               District, assigned to active duty under authority of the Ohio
               Constitution, Article IV, Section 6(C).
                            __________________________
No. 12AP-931                                                                           7


                                    APPENDIX
                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

State of Ohio ex rel. Sherwood Lacroix,        :

               Relator,                        :
                                                                 No. 12AP-931
v.                                             :
                                                            (REGULAR CALENDAR)
Industrial Commission of Ohio                  :
and GMRI, Inc.,
                                               :
               Respondents.



                          MAGISTRATE'S DECISION

                                Rendered on June 11, 2013


               Nager, Romaine & Schneiberg Co. L.P.A., Jerald A.
               Schneiberg, Jennifer L. Lawther and Michael A. Liner, for
               relator.

               Michael DeWine, Attorney General, and Justine S. Casselle,
               for respondent Industrial Commission of Ohio.

               Reminger Co., LPA, Melvin J. Davis, Ronald Fresco and
               Charles Alusheff, for respondent GMRI, Inc.


                                    IN MANDAMUS

      {¶ 18} In this original action, relator, Sherwood Lacroix, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order denying his application for permanent total disability ("PTD") compensation and
to enter an order granting the compensation.
No. 12AP-931                                                                         8


Findings of Fact:
       {¶ 19} 1. On September 7, 2003, relator sustained an industrial injury while
employed as a kitchen helper at a restaurant operated by respondent GMRI, Inc.
("employer"), a self-insured employer under Ohio's workers' compensation laws. On that
date, relator slipped and fell on a wet floor.
       {¶ 20} 2. The industrial claim (No. 03-856581) is allowed for:
               Cervical / lumbar strain, head contusion; disc displacements
               at L4-5 and L5-S1; post lumbar laminectomy syndrome;
               foraminal stenosis at L5-S1.

       {¶ 21} 3. On May 4, 2010, attending physician Timothy Morley, D.O., wrote:

               [B]y the end of last year secondary to the ongoing severe
               pain an intrathecal pump was considered however, the
               patient states that he does not [want] to pursue that. An
               [functional capacity evaluation] and mobility assessment was
               obtained and he has essentially been confined to a
               wheelchair. In fact, he was recently approved for an electric
               wheelchair.

               I have in the past stated that the patient is permanently and
               totally disabled. Since that time he has had additional
               diagnostics, and additional invasive procedures which have
               essentially failed. He, as mentioned, was deemed not feasible
               for vocational rehabilitation. He is confined to a wheelchair.
               Essentially he has no other treatment options.

               Given the history, as well as serial [sic] physical
               examinations as outlined by my notes, I would again state to
               a reasonable degree of medical certainty that as a direct
               result of the injury of 09-07-2003 the patient is unable to
               perform any remunerative work. As such the patient is
               considered permanently and totally disabled.

       {¶ 22} 4. On May 14, 2010, relator filed an application for PTD compensation. In
support, relator submitted the May 4, 2010 report of Dr. Morley.
       {¶ 23} 5. On July 28, 2010, at the commission's request, relator was examined by
Daniel J. Leizman, M.D. In his five-page narrative report dated July 29, 2010, Dr.
Leizman concluded:
               The Physical Strength Rating form was not completed as the
               Claimant was not deemed having reached Maximum Medical
No. 12AP-931                                                                       9


               Improvement with regard to the lumbar spine allowed
               conditions in this Claim.

               In summary, my impression is that Sherwood Lacroix has
               reached Maximum Medical Improvement with regard to
               Claim allowances of head contusion and cervical strain.
               There is no percentage of whole person impairment with
               regard to head contusion or cervical strain Claim allowances.
               My opinion is that determination of Maximum Medical
               Improvement needs to be deferred at this time with regard to
               the lumbar spine Claim allowances, on a high field MRI
               scanner pending repeat MRI of the lumbar spine without
               and with gadolinium enhancement, and review of results and
               reassessment of the Claimant.

       {¶ 24} 6. On June 17, 2010, at the employer's request, relator was examined by
Kiva Shtull, M.D. In his five-page narrative report, Dr. Shtull states:
               PHYSICAL EXAMINATION

               The claimant is alert and in no acute distress, coherent,
               relevant, cooperative, comfortable, and most pleasant. He
               states that he is 5 feet 11 inches tall and weighs
               approximately 300 pounds.

               Examination of the head shows that it is normocephalic and
               atraumatic with cranial nerves II through XII being intact.
               Affect, mood, orientation, and speech were normal.

               Examination of the cervical spine shows no pain on
               palpation of spinous processes, paraspinal musculature, or
               trapezial ridges. Reflexes in the upper extremities are
               symmetrical. Strength testing of neurological level C5-T1 is
               intact bilaterally. Active range of motion of the cervical spine
               showed flexion 30 degrees, extension 25 degrees, right
               lateral flexion 40 degrees, left lateral flexion 40 degrees,
               right rotation 60 degrees, left rotation 55 degrees.

               Examination of the lumbar spine was limited by the fact that
               in the standing position, he was entirely dependent on
               support from his walker. Left lower extremity tremor on a
               constant basis was noted. Palpatory examination was limited
               by adiposity. Sensation was globally decreased on the left in
               the distributions of L4, L5, and S1. The left Achilles reflex
               was absent. The claimant was able to ambulate fairly well
               with the use of his walker, although again it is noted the fact
               that he drags his left lower extremity behind him.
No. 12AP-931                                                                         10


               CONCLUSION

               ***

               Based upon the history, physical examination, and review of
               the medical file, it is my opinion to within a reasonable
               degree of medical probability, that the claimant is capable of
               full-time sustained remunerative employment in the
               sedentary category, in the seated position, with the following
               additional restrictions: 1) The ability to change positions as
               necessary; 2) No foot pedal operation with the lower
               extremities; 3) No exposure to vibratory forces.

               The claimant's ability to sustain full-time remunerative
               employment is facilitated by his recent acquisition of a power
               wheelchair, which request I was in agreement with at the
               time of my independent medical evaluation of 01/07/2010.

      {¶ 25} 7. At the employer's request, vocational expert Craig Johnston, Ph.D.,
prepared a report captioned "Employability Assessment." In his six-page narrative report
(page six is captioned addendum) dated November 11, 2010, Dr. Johnston states:
               OPINION

               I have reviewed the available medical records, work history,
               and socio-economic factors. My opinions are based on the
               job descriptions and worker traits as described by the
               Dictionary of Occupational Titles which contains
               information compiled by the U.S. Department of Labor in its
               job analysis studies.

               1. From a vocational standpoint, considering the
               allowed conditions in his claims, does the claimant
               retain the capacity to engage in sustained
               remunerative employment? Does the claimant have
               the vocational capacity necessary to be retrained for
               some other type of sustained remunerative
               employment?

               Sherwood Lacroix is 34 years of age with a 9th grade
               education and a semiskilled work history. He sustained a
               work-related injury in September 2003 and has not worked
               since. He has now filed for permanent total disability with
               the medical support of Timothy Morley, D.O. This is his third
               such application, with previous denials in 2007 and 2008.
No. 12AP-931                                                                      11


               ***

               The claimant's lack of possession of a high school diploma is
               a potential barrier to some forms of employment, but it has
               not precluded him from having previously engaged in a
               series of unskilled and semiskilled work activities, and it
               would not be expected to prevent him from engaging in all
               work activity in the future. Mr. Lacroix states that he can
               read, write, and do basic math, but not well. It is noted
               however that he does appear to have completed the PTD
               application on his own, reflecting the ability to follow written
               instructions, complete short forms, and write legible and
               grammatically correct sentences. These, along with the
               ability to perform simple math, are the basic skills required
               for entry-level work activity. His education is therefore
               considered sufficient for entry-level, non-academically
               strenuous work activity. Further, in each of his previous
               denials the OIC referenced information from the Mentor
               Public Schools which found Mr. Lacroix, then a high school
               student, to no longer require special education services. The
               OIC concluded that many of his academic problems "resulted
               from a total lack of effort on his part". Indeed, there is no
               evidence that the claimant has ever sought to obtain his GED
               or engage in academic remediation since leaving high school
               and therefore, obviously, since either of his two previous
               denials.

               The claimant's work history consists of unskilled and
               semiskilled work activities providing few appreciable
               transferable skills. A lack of transferable skills is not
               uncommon among younger individuals, and Mr. Lacroix was
               just 27 when he last held employment. His work does
               however reflect the ability to obtain and perform entry-level
               work, including those occupations that require a 7-8th grade
               reasoning proficiency and 4-6th grade mathematics and
               language proficiencies, as well as average aptitudes of
               intelligence, verbal skill, clerical perception, motor
               coordination, and manual dexterity. He has demonstrated
               specific skills including the ability to work both
               independently and in a team setting, follow instructions
               (ingredients), categorize materials (stock clerk), and operate
               machinery. He has experience in the food service, retail
               trade, and manufacturing industries, and could return to
               these or other settings in which entry-level work is abundant.

               The claimant's age, education, and work history are
               sufficient for entry-level employment, assuming the physical
No. 12AP-931                                                                    12


               capacities to do so. To this end, three medical opinions are
               noted.

               According to Dr. Morley, the claimant is permanently and
               totally disabled. Based on this opinion Mr. Lacroix would be
               unemployable, regardless of the relevant vocational factors.

               According to Kiva Shtull, M.D., the claimant is capable of
               sedentary work activity with the need to change positions as
               necessary, avoid exposure to vibratory forces, and avoid foot
               pedal operation. This opinion is similar to the one Dr. Shtull
               provided in February 2008. With no changes to the
               claimant's vocational profile (other than aging a few years)
               the vocational conclusions based on this medical opinion
               would be essentially the same as well. While Mr. Lacroix
               would be incapable of returning to his former work activity,
               all of which were performed at greater than a sedentary level,
               he could engage in other entry-level work activities.
               Returning to a manufacturing industry, the claimant could
               work in seated assembly and parts inspection/finishing
               positions. Unskilled positions involve 1-2 step processes to
               assist in manufacturing various products. The individual can
               alternate between sitting and standing as these seated
               positions typically involve a raised stool. Therefore, moving
               to the standing position does not prevent individuals from
               working with their arms directly out in front of them (as
               opposed to having to reach down or bend over to work at a
               low level table). Other work activities that are unskilled
               entry-level include surveillance system monitor (watches
               closed circuit televisions to monitor vandalism or theft), and
               seated and sit/stand cashiers (as found in parking garages,
               toll booths, movie theaters, bus stations, entertainment box
               offices, and cafeterias). Only a 4-6th grade mathematics level
               is needed to perform the duties of a cashier, which is the
               same level of mathematics proficiency the claimant
               demonstrated through his past employment. Again, these
               individuals can alternate from a seated to standing position.

               A final opinion comes from Daniel Leizman, M.D., who
               actually does not render an assessment of physical capacities
               at all, instead opining that the claimant has not reached
               maximum medical improvement. No vocational conclusion
               can be drawn from the report of Dr. Leizman.

               ***
No. 12AP-931                                                                      13


               Mr. Lacroix has now been found not disabled on two
               previous occasions, both under the assumption he remained
               capable of sedentary physical activity. Today, if one accepts
               the opinion of Dr. Shtull, then Mr. Lacroix is again capable of
               sedentary physical activity. As there has been no change to
               his profile with the exception that he has aged from 31 to 34
               years, the same vocational conclusions are drawn. He cannot
               return to past work, he has the capacity for entry-level work,
               and entry-level employment options are available to him. His
               lack of a high school diploma is a potential barrier to some
               forms of employment, but not to entry-level work. This is
               supported by his history of obtaining and performing
               multiple positions of employment. He also possesses the
               ability to pursue his GED, and has so since leaving high
               school. This would enhance his employability. Instead, there
               is no evidence that he has attempted this nor is there
               evidence that he has made efforts to return to work. If
               motivated, the claimant's vocational profile is one that
               supports the capacity for entry-level work at the sedentary
               level. Therefore, Mr. Lacroix remains capable of sustained
               remunerative employment.

      {¶ 26} 8. Following a December 2, 2010 hearing, a staff hearing officer ("SHO")
issued an order denying the PTD application. The SHO's order explains:
               The Staff Hearing Officer relies upon the 6/17/2010 report of
               Dr. Shtull in finding that the injured worker is capable of
               most sedentary positions of employment and also, implicit in
               such a determination (Dr. Shtull) capable of engaging in
               vocational rehabilitation and skill enhancement efforts. The
               Staff Hearing Officer further finds, as indicated below, that
               the injured worker is vocationally capable of a return to the
               workforce or a vocational rehabilitation program despite his
               limited ninth grade education. For these reasons, as well as
               those set forth below, the IC-2 of 5/14/2010 is denied.

               The Injured Worker has twice previously filed for Permanent
               and Total Disability Compensation (9/14/2006 and
               1/27/2008). A review of the IC-2 applications of those dates
               reveals information essentially the same as that set forth on
               the current IC-2 filed 5/14/2010.

               The Staff Hearing Officer notes that the prior denials of the
               Injured Worker's IC-2 applications of 9/14/2006 and
               1/27/2008 are not controlling or dispositive as to his current
               application (5/14/2010). Irrespective of any change in
               vocational efforts or circumstances since the most recent IC-
No. 12AP-931                                                                     14


               2 application, inquiry and evaluation must first be made to
               determine if the impairments arising from the allowed
               physical conditions themselves prevent a return to any form
               of sustained, remunerative employment. If such is found to
               be the case, then vocational evidence and efforts, or the lack
               therefore, become irrelevant. Per the 6/17/10 report of Dr.
               Shtull, the SHO finds that the impairments arising from the
               allowed conditions herein are not, in and of themselves, of a
               nature and extent so as to prevent a return to employment.

               ***

               The Injured Worker stated that he had recently been
               approved     for    and    had    purchased     a   powered
               scooter/wheelchair and lift and that the claim had been
               additionally recognized for the condition "foraminal stenosis
               at L5-S1". The Injured Worker's acquisition of a power
               wheelchair has been cited, by the Injured Worker, as
               evidence of an ever-worsening impairment and lack of
               mobility and, by the employer, as evidence of an increased
               and expanded ability to remain mobile and to engage more
               fully in activities of daily living and, conceivably, work
               activity.

               ***

               All vocational evidence on file and at hearing was reviewed
               and considered, including the 10/3/2010 report of Mark
               Anderson and the 11/11/2010 report of Craig Johnston. Mr.
               Lacroix is currently 34 years of age, a vocational asset. He
               has a ninth grade education, suggestive of a limited
               education. While the Injured Worker testified, and
               documentation on file confirmed, that his formal education
               was characterized by learning disabled classes, such an
               academic background did not, in any event, prevent him
               from obtaining and maintaining a series of entry level
               positions of unskilled and semi-skilled employment (kitchen
               helper; stock clerk; machine operator; video store manager)
               ranging from light to heavy levels of exertion. Absent from
               the analysis and history set forth in the vocational reports on
               file is the fact that the injured worker managed a video game
               store for three years (10/1/2004 report of Dr. Swales). While
               remote in time, such a position of employment and
               responsibility runs counter to the assertions of Mark
               Anderson that the Injured Worker is functioning, in many
               respects, at the level of a second or third grader and has no
               potential for vocational rehabilitation or skill enhancement.
No. 12AP-931                                                                              15


                As such, the true significance and limitations of the Injured
                Worker's educational background is questionable when a
                return to unskilled and some semi-skilled employment is
                contemplated. While the injured worker's past employment
                may have left him with no presently transferable skills, such
                a finding is not fatal to a return to unskilled and entry level
                employment.

                The Staff Hearing Officer finds that the vocational
                assessment of Philip Johnson [sic] (11/11/2010) offers the
                most accurate assessment of the Injured Worker's academic
                and vocational abilities and potentials and concurs with his
                opinion that the injured worker is capable of a return to the
                workforce. The Staff Hearing Officer finds it more probable
                than not that, as found by Mr. [Johnston], the Injured
                Worker has functioned at and retains the potential for a
                higher level of vocational achievement than that asserted by
                Mark Anderson (10/3/2010). For example, while much is
                made of the Injured Worker's limited education and his
                enrollment in learning disabled classes during his academic
                career, a report completed by a psychologist of the Injured
                Worker's choosing (Dr. Weinstein - 8/16/2004) described
                him as "low average to average intelligence" with "no
                symptoms of cognitive dysfunction" and did not find him
                unemployable. It must be remembered that the claim is not
                allowed for any psychological condition.

          {¶ 27} 9. On February 9, 2011, the three-member commission mailed an order
denying relator's request for reconsideration of the SHO's order of December 2, 2010.
          {¶ 28} 10. On October 29, 2010, relator, Sherwood Lacroix, filed this mandamus
action.
Conclusions of Law:
          {¶ 29} It is the magistrate's decision that this court issue a writ of mandamus, as
more fully explained below.
          {¶ 30} For its determination of residual functional capacity, Ohio Adm.Code 4121-
3-34(B)(4), the commission, through its SHO, relied exclusively upon the June 17, 2010
report of Dr. Shtull who opined:
                [T]the claimant is capable of full-time sustained
                remunerative employment in the sedentary category, in the
                seated position, with the following additional restrictions: 1)
                The ability to change positions as necessary; 2) No foot pedal
No. 12AP-931                                                                                 16


                 operation with the lower extremities; 3) No exposure to
                 vibratory forces.

          {¶ 31} Here, relator does not challenge the commission's exclusive reliance upon
the report of Dr. Shtull for its determination of residual functional capacity. However,
relator does challenge the commission's reliance upon the vocational report of Dr.
Johnston.
          {¶ 32} The commission's reliance upon the report of Dr. Johnston is expressed
most strongly when the SHO states:
                 The Staff Hearing Officer finds that the vocational
                 assessment of Philip Johnson [sic] (11/11/2010) offers the
                 most accurate assessment of the Injured Worker's academic
                 and vocational abilities and potentials and concurs with his
                 opinion that the injured worker is capable of a return to the
                 workforce.

          {¶ 33} Parenthetically, it can be noted that, at oral argument before the magistrate,
counsel agreed that the SHO's order incorrectly refers to "Philip Johnson" when it should
have referred to "Craig Johnston" as the author of the relied upon November 11, 2010
report.
          {¶ 34} The commission's reliance upon the report of Dr. Johnston is problematical
because Dr. Johnston strongly suggests that he misunderstood the residual functional
capacity described in Dr. Shtull's report. The problem is found in the paragraph of Dr.
Johnston's report beginning with the following sentence:
                 According to Kiva Shtull, M.D., the claimant is capable of
                 sedentary work activity with the need to change positions as
                 necessary, avoid exposure to vibratory forces, and avoid foot
                 pedal operation.

          {¶ 35} As relator points out, a critical component of Dr. Shtull's description of
residual functional capacity is missing. That is, Dr. Johnston fails to include the language
"in the seated position" which is a limitation upon the ability to perform sedentary work.
          {¶ 36} Failing to include the language "in the seated position" is significant because
of what Dr. Shtull states in his findings under the heading "Physical Examination." There,
Dr. Shtull states:
                 Examination of the lumbar spine was limited by the fact that
                 in the standing position, he was entirely dependent on
No. 12AP-931                                                                           17


               support from his walker. Left lower extremity tremor on a
               constant basis was noted. * * * The claimant was able to
               ambulate fairly well with the use of his walker, although
               again it is noted the fact that he drags his left lower extremity
               behind him.

       {¶ 37} Thus, relator cannot work with his hands in the standing position because
he is entirely dependent on support from his walker in the standing position. Use of the
walker would obviously occupy his hands.
       {¶ 38} Notwithstanding that relator is entirely dependent on support from his
walker in the standing position, Dr. Johnston, nevertheless, states:
               Returning to a manufacturing industry, the claimant could
               work in seated assembly and parts inspection/finishing
               positions. Unskilled positions involve 1-2 step processes to
               assist in manufacturing various products. The individual can
               alternate between sitting and standing as these seated
               positions typically involve a raised stool. Therefore, moving
               to the standing position does not prevent individuals from
               working with their arms directly out in front of them (as
               opposed to having to reach down or bend over to work at a
               low level table).

       {¶ 39} Given Dr. Shtull's description of residual functional capacity, Dr. Johnston
cannot be correct in stating that the individual (relator) can work with his hands while
alternating between sitting and standing. Clearly, relator cannot work with his hands
while standing with the assistance of his walker.
       {¶ 40} Given the above analysis, the magistrate finds that the commission's
reliance upon the report of Dr. Johnston was an abuse of discretion requiring the issuance
of a writ of mandamus.
       {¶ 41} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate its SHO's order of December 2, 2010, and,
in a manner consistent with this magistrate's decision, enter a new order that adjudicates
the PTD application.




                                           /S/ MAGISTRATE
                                          KENNETH W. MACKE
No. 12AP-931                                                                     18




                               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).
