[Cite as State ex rel. Yutzy v. Yutzy Ent. Servs., Inc., 2014-Ohio-2497.]

                               IN THE COURT OF APPEALS OF OHIO

                                     TENTH APPELLATE DISTRICT


[State ex rel.] Mark Yutzy,                               :

                  Relator,                                :

v.                                                        :                    No. 13AP-489

Yutzy Enterprise Services, Inc.                           :                 (REGULAR CALENDAR)
and Industrial Commission of Ohio,
                                                          :
                  Respondents.
                                                          :




                                              D E C I S I O N

                                        Rendered on June 10, 2014


                  Michael J. Muldoon, for relator.

                  Michael DeWine, Attorney General, and LaTawnda N.
                  Moore, for respondent Industrial Commission of Ohio.


                                    IN MANDAMUS
                      ON OBJECTION TO THE MAGISTRATE'S DECISION

KLATT, J.
         {¶ 1} Relator, Mark Yutzy, commenced this original action in mandamus seeking
an order compelling respondent, Industrial Commission of Ohio ("commission"), to
vacate its May 16, 2013 order that denied relator's application for permanent total
disability ("PTD") compensation, and to enter an order granting the compensation.
         {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found that there
was some evidence supporting the commission's decision that the allowed physical and
No. 13AP-489                                                                            2

psychological claims did not prelude relator from performing sedentary work. With
respect to the non-medical disability factors, the magistrate found that the commission
did not abuse its discretion in evaluating the vocational evidence and in concluding that
relator was capable of sustained remunerative employment. Therefore, the magistrate
has recommended that we deny relator's request for a writ of mandamus.
       {¶ 3} Relator has filed an objection to the magistrate's decision. Relator argues
that the commission abused its discretion in assessing the non-medical vocational factors
because it failed to mention or discuss the vocational report of Ms. Williams, who opined
that relator was unfit for work. Relator also points out that his rehabilitation file was
closed because of his lack of "positional tolerances," "functional abilities," and "below
sedentary physical demand capacity level." Therefore, relator contends the magistrate
erred when he found that the commission did not abuse its discretion. We disagree.
       {¶ 4} As noted by the magistrate, because the commission is the expert on non-
medical vocational issues, it need not rely on offered vocational evidence. Nor does the
commission need to enumerate the evidence it considered. The law presumes that the
commission considered all the evidence before it. State ex rel. Lovell v. Indus. Comm., 74
Ohio St.3d 250, 252 (1996). Here, the commission clearly set forth its vocational analysis
and it was not required to address Ms. Williams' report because it did not rely that report.
The commission did not abuse its discretion by conducting its own analysis of the non-
medical disability factors. For these reasons, we overrule relator's objection.
       {¶ 5} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
                                           Objection overruled; writ of mandamus denied.

                           CONNOR and O'GRADY, JJ., concur.
No. 13AP-489                                                                       3

                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

[State ex rel.] Mark Yutzy,                 :

              Relator,                      :

v.                                          :                   No. 13AP-489

Yutzy Enterprise Services, Inc.             :                (REGULAR CALENDAR)
and Industrial Commission of
Ohio,                                       :

              Respondents.                  :




                          MAGISTRATE'S DECISION

                              Rendered on January 30, 2014


              Michael J. Muldoon, for relator.

              Michael DeWine, Attorney General, and LaTawnda N.
              Moore, for respondent Industrial Commission of Ohio.


                                    IN MANDAMUS

       {¶ 6} In this original action, relator, Mark Yutzy, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate the May 16,
2013 order of its staff hearing officer ("SHO") that denies relator's application for
permanent total disability ("PTD") compensation, and to enter an order granting the
compensation.
Findings of Fact:
       {¶ 7} 1. On September 12, 2006, relator sustained an industrial injury while
employed with Yutzy Enterprise Services, Inc. ("Yutzy Enterprise"), a company that
No. 13AP-489                                                                         4

relator owned. Yutzy Enterprise was involved in the sales, service and installation of
heating, ventilation and air conditioning ("HVAC") equipment.
       {¶ 8} 2. The industrial claim (No. 06-892110) is allowed for:
              Aggravation of pre-existing lumbar spinal stenosis;
              degenerative disc disease at L2, L3 and L4; depressive
              disorder.

       {¶ 9} 3. On November 5, 2012, relator was treated by his treating psychologist
Michael G. Drown, Ph.D. Dr. Drown issued a two-page narrative report concluding:
              Based on all of the available information it is reasonable that
              Mr. Yutzy's work related psychiatric condition, "Depressive
              Disorder (311.)", renders him to be permanently and totally
              disabled. In reference to the AMA Guide (Fourth Edition)
              regarding mental and Behavioral Disorders, his psychiatric
              impairment falls within the marked range.

       {¶ 10} 4. On November 30, 2012, relator filed an application for PTD
compensation. In support, relator submitted the report of Dr. Drown.
       {¶ 11} 5. The PTD application form asks the applicant to provide information
regarding his education status. Relator indicated that he graduated from high school in
1969. The application form also posed three questions: (1) "Can you read?" (2) "Can you
write?" and (3) "Can you do basic math?" Given a choice of "yes," "no" and "not well,"
relator selected the "not well" response for the first two queries. He selected the "yes"
response for the third query.
       {¶ 12} 6. The PTD application form asks the applicant to provide information
regarding his work history. Relator indicated that he was the "owner" of an "HVAC
Service" from December 1979 to September 2006. Prior to that, he was a self-employed
carpenter from May 1972 to November 1979.
       {¶ 13} 7. On February 13, 2013, at the commission's request, relator was examined
by orthopedist William Reynolds, M.D.          In his five-page narrative report dated
February 28, 2013, Dr. Reynolds opined:
              With this impairment of function as relates to his spine, he is
              capable of sedentary activities. In that capacity, he should
              avoid those activities that require repeated bending and
              lifting.
No. 13AP-489                                                                            5

               ***

               He has a whole person impairment of function of the person
               as a whole of 23%.

               ***

               In my opinion, he is capable of some varied work activities,
               and should avoid repeating [sic] bending and lifting.

        {¶ 14} 8. On March 1, 2013, Dr. Reynolds completed a Physical Strength Rating
form.     On the form, Dr. Reynolds indicated by his mark that relator is capable of
sedentary work.
        {¶ 15} 9. On February 13, 2013, at the commission's request, relator was examined
by psychologist Bruce J. Goldsmith, Ph.D. In his six-page narrative report, Dr. Goldsmith
opined:
               [T]he degree of permanent impairment from his allowed
               conditions of Depressive Disorder resulting from his
               industrial accident of 09/12/2006 and referenced by the
               AMA Guide to Permanent Impairment (2nd and 5th
               editions), is presently estimated at Class II/Mild, 15%.

               ***

               The degree of psychological impairment due to his industrial
               accident of 09/12/2006 would limit him to simple to
               moderately complex, low to moderate stress work.

        {¶ 16} 10. On February 18, 2013, Dr. Goldsmith completed a form captioned
"Occupational Activity Assessment[,] Mental & Behavioral Examination." On the form,
Dr. Goldsmith indicated by his mark: "This Injured Worker is capable of work with the
limitation (s) / modification (s) noted below."
        {¶ 17} In the space provided, in his own hand, Dr. Goldsmith wrote: "This injured
worker is limited to simple to moderately complex, low to moderate stress work."
        {¶ 18} 11. At relator's request, vocational consultant Molly S. Williams prepared a
vocational report. In her three-page report dated March 31, 2013, Williams concluded:
               [W]hen all of the disability factors are correctly identified,
               stated, and considered: an individual unable to perform his
               customary past relevant work as an Owner, both as he
               performed it and as it is normally performed within the
No. 13AP-489                                                                     6

             national economy; an individual of advanced age (age fifty-
             five or over); an individual with a high school education
             completed in the remote past (1969); an individual with no
             transferable skill(s); and an individual not expected to make
             a vocational adjustment to other work based upon the
             allowed physical conditions as assessed by The Industrial
             Commission's Specialist, William Reynolds, M.D., and the
             allowed mental condition as assessed by the Treating
             Psychologist, Michael G. Drown, it is obvious that the
             claimant is permanently and totally disabled.

      {¶ 19} 12. On May 16, 2013, relator's PTD application was heard by an SHO. The
hearing was recorded and transcribed for the record.
      {¶ 20} 13. Following the hearing, the SHO issued an order denying the PTD
application. The SHO's order explains:
             The Staff Hearing Officer has reviewed and considered all
             relevant evidence on file, as well as that presented at hearing,
             and bases this decision on the evidence and reasons
             specifically cited in the following findings.

             The Injured Worker is a 61 year old male with a high school
             education, and a work history including experience as a
             dump truck driver, laborer, carpenter, and a heating,
             ventilation, and air conditioning (HVAC) business owner.
             The Injured Worker was injured on 09/12/2006, when he
             slipped on some cardboard and fell on his low back. On
             11/07/2006, the Injured Worker underwent a post lateral
             fusion procedure at L2-L3, L3-L4; lumbar laminectomy with
             decompression of facetectomy L2, L3, and L4. Currently, the
             Injured Worker's medical treatment is conservative. The
             Injured Worker sees his physician Dr. Altic every four
             months, Dr. Perkins (a pain management specialist) every
             three months for medication monitoring, and Dr. Drown
             every three weeks for psychotherapy. The Injured Worker
             does take medication for the allowed psychological condition
             in the claim. According to his IC-2 Application the Injured
             Worker last worked on 09/19/2006. The Injured Worker has
             been receiving Social Security Disability Benefits in the
             amount of $1,679.00 per month since 2007.

             The Injured Worker was examined by Industrial
             Commission Specialist William Reynolds, M.D., on
             02/13/2013 with regard to the allowed physical conditions in
             the claim. Dr. Reynolds opined that the allowed physical
             conditions in the claim have reached maximum medical
No. 13AP-489                                                                 7

           improvement. In addition, Dr. Reynolds opined that as a
           result of the allowed physical conditions the Injured Worker
           has a 23% whole person impairment. Finally, Dr. Reynolds
           opined that when considering the allowed physical
           conditions in the claim, the Injured Worker is capable of
           performing sedentary work activity. Specifically, Dr.
           Reynolds opined "With this impairment of function as it
           relates to his spine, he is capable of sedentary activities. In
           that capacity he should avoid those activities that require
           repeated bending or lifting."

           The Injured Worker was examined by Industrial
           Commission Specialist Bruce J. Goldsmith, Ph.D., on
           02/13/2013, with regard to the allowed psychological
           condition in the claim. Dr. Goldsmith opined that the
           allowed psychological condition in the claim has reached
           maximum medical improvement. In addition, Dr. Goldsmith
           opined that as a result of the allowed psychological condition
           the Injured Worker has a 15% whole person impairment.
           Finally, Dr. Goldsmith opined that the Injured Worker is
           capable of work activity with some restrictions. Dr.
           Goldsmith opined "This injured worker is limited to simple
           to moderately complex low to moderate stress work."

           The Staff Hearing Officer relies upon the medical reports of
           Dr. Reynolds and Dr. Goldsmith to find that when only the
           impairment arising from the allowed conditions of the claim
           is considered, the Injured Worker has the residual functional
           capacity to perform sedentary work activity. Furthermore,
           when his degree of impairment is considered in conjunction
           with his non-medical disability factors, the Staff Hearing
           Officer finds that the Injured Worker is capable of sustained
           remunerative employment and is not permanently and
           totally disabled.

           The Staff Hearing Officer considers the Injured Worker's age
           to be a neutral vocational asset with regard to his potential
           for returning to the workforce. The Injured Worker's age in
           and of itself would not preclude him from obtaining and
           performing work activity. Individuals of the Injured
           Worker's age can continue to work for many years even after
           receiving Social Security Retirement Benefits. In addition,
           individuals of the Injured Worker's age have sufficient time
           to acquire new job skills, at least through informal means
           such as short-term or on-the-job training, that could
           enhance their potential for re-employment.
No. 13AP-489                                                                   8

           The Staff Hearing Officer views the Injured Worker's high
           school education and his specialized training in HVAC
           (received an Ohio license for this work based upon a
           required test) to be a positive vocational asset with regard to
           his potential for returning to the workforce. The Injured
           Worker indicated on his IC-2 Application that he is able to
           do basic math, but cannot read or write well. When
           questioned about his inability to read or write well the
           Injured Worker testified that he received average grades (C
           to C+) in high school. However, the Staff Hearing Officer
           notes for the record that despite the Injured Worker's
           position that he cannot read or write well, the Staff Hearing
           Officer finds that the Injured Worker was able to run a
           successful HVAC company for some 27 years. In addition,
           the Staff Hearing Officer finds the Injured Worker's former
           positions of employment (carpenter and HVAC business
           owner) to be at least at the semi-skilled level. As such, the
           Staff Hearing Officer finds that the Injured Worker has
           sufficient education, intellect, and literacy abilities to obtain
           and perform work activity at the levels described by Dr.
           Reynolds and Dr. Goldsmith in their reports.

           The Staff Hearing Officer finds that Injured Worker's work
           experience to be a strong vocational asset regarding his
           potential for returning to the work force. The Injured Worker
           has a work history including experience as a dump truck
           operator, laborer, carpenter, and small business owner
           operating a HVAC company. The Injured Worker has a very
           long and consistent 37 year work history. The Staff Hearing
           Officer finds that the Injured Worker's ability to successfully
           operate his own HVAC business for 27 years establishes that
           the Injured Worker developed a wide variety of transferable
           skills including communication skills, business skills
           including drafting of contracts and estimates, meeting with
           customers, and selling services and equipment, and technical
           skills including the ability to install, service, and maintain
           HVAC systems. The Staff Hearing Officer finds that these
           transferable skills would greatly assist the Injured Worker in
           obtaining and performing work activity at the levels
           described by Dr. Reynolds and Dr. Goldsmith in their
           reports.

           Therefore, because the Injured Worker has the residual
           functional capacity to perform sedentary work activity when
           only the impairment arising from the allowed conditions of
           the claim is considered, because he is qualified by age,
           education and a semi-skilled work history to obtain and
No. 13AP-489                                                                               9

              perform work at that level, and because he has the capacity
              to acquire new job skills, at least through informal means,
              the Staff Hearing Officer finds that the Injured Worker is
              capable of performing sustained remunerative employment
              and is not permanently and totally disabled. Accordingly, the
              IC-2 Application filed 11/30/2012, is denied.

       {¶ 21} 14. On June 7, 2013, relator, Mark Yutzy, filed this mandamus action.
Conclusions of Law:
       {¶ 22} It is the magistrate's decision that this court deny relator's request for a writ
of mandamus, as more fully explained below.
       {¶ 23} For its determination of residual functional capacity, the commission,
through its SHO, relied upon the reports of Drs. Reynolds and Goldsmith.
       {¶ 24} Examining only for the allowed physical conditions of the industrial claim,
Dr. Reynolds opined that relator is capable of performing sedentary work but, in that
capacity, he should avoid those activities that require repeated bending or lifting. Dr.
Goldsmith opined that the allowed psychological condition permits work activity with
some restrictions. Dr. Goldsmith stated: "This injured worker is limited to simple to
moderately complex low to moderate stress work." Here, relator does not challenge the
commission's reliance upon the reports of Drs. Reynolds and Goldsmith, nor does relator
challenge the commission's determination of residual functional capacity.
       {¶ 25} However, relator does challenge the commission's consideration of the non-
medical disability factors.
       {¶ 26} The commission may credit offered vocational evidence, but expert opinion
is not critical or even necessary, because the commission is the expert on this issue. State
ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266, 271 (1997). The commission need
only cite to the evidence upon which it relied. State ex rel. Lovell v. Indus. Comm., 74
Ohio St.3d 250, 252 (1996).       The commission need not enumerate the evidence it
considered. Id. Because the commission does not have to list the evidence considered,
the presumption of regularity that attaches to commission proceedings gives rise to a
second presumption—that the commission indeed considered all the evidence before it.
Id.
No. 13AP-489                                                                             10

       {¶ 27} Here, the SHO's order of May 16, 2013 does not mention the Williams
vocational report because, presumably, the commission placed no reliance upon the
report. Here, the commission conducted its own analysis of the non-medical disability
factors. It was not an abuse of discretion for the commission to conduct its own analysis
of the non-medical disability factors. It was not an abuse of discretion for the commission
to not mention or address the Williams report in its order. The commission need not
explain why it rejected the Williams report.
       {¶ 28} Here, relator asserts that the SHO "ignored the probative vocational
evidence which was submitted [by relator] in this case." (Relator's brief, 10.) Relator then
asserts "[o]bviously, the Staff Hearing Officer was required to rely upon the probative
vocational evidence before him." (Relator's brief, 11.) Relator is incorrect.
       {¶ 29} Because the commission did not rely upon the Williams vocational report, it
necessarily rejected the report as not being probative.         It is the commission that
determines the weight and credibility of the evidence before it. It is therefore incorrect for
relator to assert that the Williams report is "probative." It is also incorrect for relator to
assert that the commission "ignored" the Williams report simply because it chose not to
rely upon it.
       {¶ 30} For all the above reasons, it is the magistrate's decision that this court deny
relator's request for a writ of mandamus.


                                            /S/ MAGISTRATE
                                            KENNETH W. MACKE
                                 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).
