[Cite as State ex rel. Miller v. Indus. Comm., 2014-Ohio-1742.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                   :
Clifford Miller,
                                                        :
                 Relator,
                                                        :
v.                                                                     No. 13AP-418
                                                        :
Industrial Commission of                                            (REGULAR CALENDAR)
Ohio and Sheedy Paving, Inc.,                           :

                 Respondents.                           :


                                          D E C I S I O N

                                       Rendered on April 24, 2014


                 Agee, Clymer, Mitchell, & Laret, and Gregory R. Mitchell,
                 for relator.

                 Michael DeWine, Attorney General, and Lydia M. Arko, for
                 respondent Industrial Commission of Ohio.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

CONNOR, J.
        {¶ 1}     Relator, Clifford Miller, brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying him permanent total disability ("PTD") compensation, and to
find that he is entitled to that compensation.
        {¶ 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 has now rendered a decision and
recommendation that includes findings of fact and conclusions of law and is appended to
this decision. The magistrate concluded that the commission did not abuse its discretion
and recommended that this court not issue the requested writ of mandamus. Relator has
No. 13AP-418                                                                            2


filed objections to the magistrate's decision, and the matter is now before us for our
independent review.
       {¶ 3} As reflected in the facts given in the magistrate's decision, claimant was
involved in a work-related injury in 2002 and involved in another work-related injury in
2004. Claimant's industrial claims have been allowed for the following conditions: sprain
left foot, sprain right shoulder, tear rotator cuff, superior glenoid labrum lesions (SLAP),
right rotator cuff syndrome, right biceps tendon rupture, right adhesive capsulitis
shoulder, and depressive disorder.
       {¶ 4} Relator filed his first application for PTD compensation on July 2, 2009.
Following a hearing before a staff hearing officer ("SHO") on December 1, 2009, relator's
first application for PTD compensation was denied.
       {¶ 5} Relator filed his second application for PTD compensation on April 4, 2012.
Brian E. Higgins, D.O., performed an independent medical examination of relator on
May 16, 2012. Dr. Higgins concluded that relator could perform "sedentary work," noting
that relator "may lift up to 5 pounds with his right upper extremity with no repetitive
activities to the right upper extremity," and that relator should sit most of the time, but
that he could "walk for a brief period of time." (Stip.R., 20.)
       {¶ 6} Relator's second application for PTD compensation came before an SHO for
a hearing on July 31, 2012. The SHO relied on medical reports from Dr. Higgins and from
Michael A. Murphy, Ph.D., to conclude that relator was capable of performing sedentary-
type work. The SHO also discussed and reviewed the non-medical disability factors.
Finding that relator could perform sedentary work, and that the non-medical disability
factors did not prevent relator from performing sustained, remunerative employment, the
SHO denied relator's second application for PTD compensation.
       {¶ 7} The magistrate determined that the restrictions listed in Dr. Higgins' report
were consistent with the definition of sedentary work found in Ohio Adm.Code 4121-3-
34(B), and concluded that relator's reliance on State ex rel. Soto v. Indus. Comm., 69
Ohio St.3d 146 (1994), was misplaced. Relator presents the following objections to the
magistrate's decision:
              Objection 1: The Magistrate's Decision errs by
              improperly interpreting OAC 4121-3-34(B)(2)(a).
No. 13AP-418                                                                               3



              Objection 2: The Magistrate's Decision errs in failing
              to follow the Supreme Court's decision in State ex
              rel. Soto v. Indus. Comm'n, 69 Ohio St.3d 146 (1994).

       {¶ 8} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the
objected matters "to ascertain that the magistrate has properly determined the factual
issues and appropriately applied the law." A relator seeking a writ of mandamus must
establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon
respondent to perform the act requested, and (3) that relator has no plain and adequate
remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police &
Firemen's Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting
State ex rel. Consolidated Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear
legal right exists where the [commission] abuses its discretion by entering an order which
is not supported by 'some evidence.' " Id.
       {¶ 9} This court will not determine that the commission abused its discretion
when there is some evidence in the record to support the commission's finding. State ex
rel. Rouch v. Eagle Tool & Mach. Co., 26 Ohio St.3d 197, 198 (1986). The some evidence
standard "reflects the established principle that the commission is in the best position to
determine the weight and credibility of the evidence and disputed facts." State ex rel.
Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing State ex
rel. Pavis v. Gen. Motors Corp., B.O.C. Group, 65 Ohio St.3d 30, 33 (1992).
       {¶ 10} The relevant inquiry in a determination of PTD is the claimant's ability to do
any sustained remunerative employment. State ex rel. Domjancic v. Indus. Comm., 69
Ohio St.3d 693 (1994); Ohio Adm.Code 4121-3-34(B)(1). An individual can engage in
sustained remunerative employment if they can perform sedentary work.
       {¶ 11} In his first objection, relator asserts that the magistrate erred by finding that
the restrictions listed in Dr. Higgins' report allowed relator to perform sedentary work.
Ohio Adm.Code 4121-3-34(B)(2)(a) defines sedentary work as follows:
              "Sedentary work" means exerting up to ten pounds of force
              occasionally (occasionally: activity or condition exists up to
              one-third of the time) and/or a negligible amount of force
              frequently (frequently: activity or condition exists from one-
              third to two-thirds of the time) to lift, carry, push, pull, or
No. 13AP-418                                                                                 4


              otherwise move objects. Sedentary work involves sitting most
              of the time, but may involve walking or standing for brief
              periods of time. Jobs are sedentary if walking and standing
              are required only occasionally and all other sedentary criteria
              are met.

        {¶ 12} Relator asserts that, because Dr. Higgins restricted relator to lifting up to
five pounds with right upper extremity, that "five pound weight restriction removes
Relator from the first test for sedentary work that an injured worker be able to exert, at a
minimum, ten pounds of force." (Relator's Objections to Magistrate's Decision, 6.) We
disagree. "[T]he ten-pound restriction is a 'ceiling' not a 'floor.' " State ex rel. Petermann
L.L.C. v. Ragle, 10th Dist. No. 11AP-556, 2012-Ohio-5659, ¶ 9. Accordingly, "the
definition of 'sedentary' does not require an employee to be able to lift ten pounds to fit
within that definition; rather, any ability to exert force below the ten-pound threshold
would fit within the definition of 'sedentary.' " Id. Relator's ability to lift up to five pounds
with his right upper extremity demonstrates that he is capable of performing sedentary
work.
        {¶ 13} Relator further asserts that "Dr. Higgins silence in regard to the frequency
of Mr. Miller's ability to lift the five pounds precludes a conclusion that sedentary work as
defined in OAC 4121-3-34(B)(2)(a) can be performed." (Emphasis sic.) (Relator's
Objections to Magistrate's Decision, 6.) We disagree. In Petermann L.L.C., the doctor
restricted the injured worker from lifting or carrying weight greater than five pounds. We
noted that the doctor did not restrict or prohibit the "claimant from exerting a negligible
amount of force frequently which, under the definition, is an alternative basis for finding a
capacity for sedentary work." Id. at ¶ 68. Similarly, here, as Dr. Higgins did not restrict
relator from exerting a negligible amount of force frequently, we find that his report
permits relator to engage in that conduct. See also State ex rel. Nicholson v. Indus.
Comm., 10th Dist. No. 11AP-436, 2012-Ohio-3438, ¶ 33 (finding that "even with the left-
hand limitation of five pounds of grip and pinch, relator is fully capable of exerting a
negligible amount of force frequently with either hand").
        {¶ 14} Relator contends that Dr. Higgins' restriction against repetitive activities
equates to a finding that relator cannot exert a negligible amount of force frequently.
Again, we disagree. A doctor's order precluding an injured worker from engaging in
No. 13AP-418                                                                             5


repetitive activities does equate to an order that an injured worker cannot exert a
negligible amount of force frequently, or that the injured worker cannot otherwise engage
in sedentary work. Compare State ex rel. Steele v. Indus. Comm., 10th Dist. No. 04AP-
606, 2005-Ohio-4125, ¶ 9, ¶ 16, ¶ 39 (finding a doctor's report was some evidence to
support the denial of relator's application for PTD, where the doctor's report stated that
relator was "capable of 'sedentary work' provided there is no repetitive use of the upper
extremities"); State ex rel. Johnson v. Perfection Group, Inc., 10th Dist. No. 12AP-304,
2013-Ohio-606, ¶ 40 (finding that the restrictions listed in a doctor's report, including the
restriction that the injured worker lift no "more than two pounds, [and] that he engage in
no repetitive activities," were consistent with the definition of sedentary work).
       {¶ 15} Lastly, relator asserts the commission's decision and the magistrate's
decision "assume that sedentary jobs exist that could possibly accommodate Mr. Miller,
without reference to the existence of a single one." (Relator's Objections to Magistrate's
Decision, 8.) The commission, however, "is not obligated to suggest specifically which
occupations the claimant can perform, or whether these occupations are widely
available locally." State ex rel. Finucan v. Indus. Comm., 10th Dist. No. 07AP-391,
2008-Ohio-1836, ¶ 9.
       {¶ 16} Based on the foregoing, relator's first objection to the magistrate's decision
is overruled.
       {¶ 17} Relator's second objection asserts that the magistrate erred in failing to
follow Soto. In Soto, the Supreme Court of Ohio concluded that Soto's non-medical
disability factors precluded him from performing sedentary work. The magistrate herein
analyzed Soto and determined that Soto was distinguishable from the instant case, as the
injured worker in Soto was literate only in Spanish and ten years older than relator. For
the reasons stated in the magistrate's decision, we similarly determine that Soto is
inapplicable to the instant action. Accordingly, relator's second objection to the
magistrate's decision is overruled
       {¶ 18} Following independent review, pursuant to Civ.R. 53, we find the magistrate
has properly determined the pertinent facts and applied the salient law to them.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
No. 13AP-418                                                                        6


and conclusions of law contained therein. In accordance with the magistrate's decision,
we deny the request for a writ of mandamus.
                                                                 Objections overruled;
                                                                          writ denied.

                         SADLER, P.J. and TYACK, J., concur.
                               _________________
No. 13AP-418                                                                            7


                                   APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel.                        :
Clifford Miller,
                                             :
              Relator,                                            No. 13AP-418
                                             :
v.                                                           (REGULAR CALENDAR)
                                             :
Industrial Commission of
Ohio and Sheedy Paving, Inc.,                :

              Respondents.                   :




                         MAGISTRATE'S DECISION

                             Rendered on November 7, 2013


              Agee, Clymer, Mitchell, & Laret, and Gregory R. Mitchell,
              for relator.

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


                                    IN MANDAMUS

       {¶ 19} Relator, Clifford Miller, 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 his application for permanent total
disability ("PTD") compensation and ordering the commission to find that he is entitled to
that compensation.
Findings of Fact:
No. 13AP-418                                                                           8


       {¶ 20} 1. Relator has sustained two work-related injuries. The first injury occurred
in 2002 and is allowed for: "sprain left foot." The second injury occurred on September
7, 2004 and was originally allowed for the following conditions: "sprain right shoulder;
tear right rotator cuff; superior glenoid labrum lesions (SLAP); right rotator cuff
syndrome; right biceps tendon rupture; right adhesive capsulitis shoulder."
       {¶ 21} 2. Relator's 2004 claim would eventually be additionally allowed for
"depressive disorder."
       {¶ 22} 3. Relator received temporary total disability ("TTD") compensation for the
allowed right shoulder conditions.
       {¶ 23} 4. It is undisputed that relator's allowed conditions to his right shoulder
have left him with significant permanent restrictions.
       {¶ 24} 5. A 90-day evaluation was conducted by James H. Rutherford, M.D. In his
April 6, 2009 report, Dr. Rutherford identified the allowed shoulder conditions in
relator's claim, discussed the medical history, provided his physical findings upon
examination, concluded that relator's allowed physical conditions had reached maximum
medical improvement ("MMI"), and noted the following limitations:
              [C]an only lift up to 2-pounds occasionally with his right
              upper extremity. He can do no work activity with his right
              upper extremity. He can do no pushing or pulling with his
              right upper extremity. He can drive for his own
              transportation, but he cannot drive heavy equipment. He
              cannot climb ladders for work activities.

              Dr. Rutherford recommended vocational rehabilitation, stating:
              I would recommend a vocational rehabilitation program for
              Mr. Miller as he still has pain and limitation of motion of his
              right shoulder, which will prevent him from returning to all
              the duties of a laborer. It is my opinion that he will most
              likely permanently be restricted to the functional limitations
              for work that I have described above in response to question
              #3. He would thus be an appropriate candidate for
              vocational rehabilitation, which would appropriately include
              vocational assessment and a functional capacity evaluation.

       {¶ 25} 6. Relator filed his first application for PTD compensation on July 2, 2009.
No. 13AP-418                                                                           9


       {¶ 26} 7. An independent medical evaluation was performed by Kenneth A.
Writesel, D.O.     In his August 29, 2009 report, Dr. Writesel identified the allowed
conditions in relator's claim, discussed his medical treatment, provided his physical
findings upon examination, and opined that relator's allowed conditions had reached
MMI.    Thereafter, Dr. Writesel opined that relator had a 0 percent whole person
impairment for the allowed condition in the 2002 claim (sprain left foot) and a 9 percent
whole person impairment based on the allowed shoulder conditions in the 2004 claim.
Dr. Writesel opined that relator could perform light-duty work with the following
restrictions:
                He should be restricted to using the right upper extremity
                only as a support or counterforce when using the left upper
                extremity as the primary work hand. He is most definitely
                capable of operating controls, ambulating without
                restriction, as well as sitting or standing without restriction.

       {¶ 27} 8. According to the statement of facts prepared when relator filed his
application for PTD compensation, his rehabilitation file was closed in May 2009 for the
following reasons:      "Closed due to Injured Worker declining services and having
nonrelated physical conditions preventing him from participating."
       {¶ 28} 9. Relator's first application for PTD compensation was heard before a staff
hearing officer ("SHO") on December 1, 2009 and was denied.
       {¶ 29} 10. The SHO relied on the medical report of Dr. Writesel to find that relator
was capable of performing light-duty work with the additional restrictions set forth in Dr.
Writesel's report. Thereafter, the SHO addressed the fact that relator had significant non-
allowed conditions and considered the non-medical disability factors to find that relator
was not entitled to an award of PTD compensation. Specifically, the SHO stated:
                The Injured Worker is 54-years-old. Under Industrial
                Commission guidelines, this is a person of middle age. This
                is an age which can be expected to, but only slightly interfere
                with adapting to a new work environment. This Staff
                Hearing Officer finds the Injured Worker's age to be a
                neutral factor in evaluating his re-employment potential.

                The Injured Worker has a sixth grade education, which
                ended because of family circumstances. The Injured Worker
                reports that he is able to read, write and do basic math, but
No. 13AP-418                                                                             10


              not well. His work experience is limited to manual labor
              which would not provide skills transferable to other, lighter
              work. This Staff Hearing Officer finds the Injured Worker's
              education and work experience to be a somewhat negative
              factor in evaluating his re-employment potential.

              The Injured Worker's industrial injuries provide limitations
              which are limited to his dominant upper extremity. The
              independent examination concluded that the Injured Worker
              is capable of performing light work, but very little work
              involving his dominant upper extremity.

              Permanent total disability compensation is properly awarded
              solely on the basis of allowed industrial injuries. The Injured
              Worker has significant non-industrial physical limitations,
              notably lower back conditions and gout. These are not
              proper considerations, either to award or deny, permanent
              total disability compensation.

              The application for permanent total disability compensation
              is denied. When consideration is limited to allowed injuries,
              the Injured Worker has not lost the entirety of his capacity to
              engage in sustained remunerative employment. An
              individual who has the ability, with restriction, to sit, stand,
              walk, or use his non-dominant upper extremity retains the
              capacity to engage in several types of employment, even
              when consideration is given to the Injured Worker's
              educational deficit. Examples of such work would include
              monitoring-type security positions, making change,
              inspector-type positions which did not require extensive fine
              manipulation, and generally other positions which did not
              require extensive use of the dominant upper extremity.

              Limiting consideration to allowed industrial injuries, the
              Injured Worker has failed to demonstrate that he has lost the
              entirety of his capacity to engage in sustained remunerative
              employment.

       {¶ 30} 11. After relator's first application for PTD compensation was denied, his
claim was additionally allowed for the psychological condition of depressive disorder.
       {¶ 31} 12. Relator's rehabilitation file was closed the second time in October 2011
for the following reasons: "Closed due to Injured Worker proceeding with permanent
total disability and treatment for chronic pain management."
No. 13AP-418                                                                            11


       {¶ 32} 13. Relator filed his second application for PTD compensation on April 4,
2012. According to his application, relator was 57 years of age and last worked in
December 2007.      Relator was receiving Social Security Disability benefits.      Relator
completed the 6th grade, did not graduate from high school and did not receive his GED.
Relator also did not attend trade or vocational school. Relator indicated that he could
read, write, and perform basic math; however, not well. Relator also indicated that he had
not participated in rehabilitation services.
       {¶ 33} 14. In support of his application, relator submitted the December 15, 2011
report of Raymond D. Richetta, Ph.D. According to Dr. Richetta, relator suffered mild to
moderate impairment in activities of daily living, moderate impairment in concentration,
persistence, and pace, mild to moderate impairment in social functioning and at least a
moderate impairment in adaptation to stress and work/work-like settings due to the
allowed psychological condition alone. Dr. Richetta also noted that relator was generally
very unmotivated and that shifting from low activity level to a work-like schedule was
likely to challenge his ability to manage stress. Dr. Richetta opined that relator could not
maintain a regular workday due to his insomnia, had reduced concentration, would have
difficulty carrying out more than very simple work directives, and that it was unlikely that
he could muster the consistent energy to sustain attendance at a job, let alone cope with
job demands. Dr. Richetta concluded that relator was permanently and totally disabled
due solely to the allowed psychological condition.
       {¶ 34} 15. Relator also submitted the February 7, 2012 report of Nancy Renneker,
M.D. Dr. Renneker noted the allowed conditions in relator's claim and discussed the
medical records which she reviewed. Thereafter, Dr. Renneker noted relator's present
complaints, provided her physical findings upon examination, listed the following
restrictions and concluded that relator was unable to perform at a sedentary work level:
              Clifford R. Miller has the following permanent job
              restrictions related to this injury of 9-07-2004: (1) no use of
              right upper extremity for any task (2) no crawling, no
              climbing, no 2 handed jobs, and no steadying of an
              object/weight with right arm and (3) Clifford R. Miller is able
              to occasionally lit in his left hand and carry a distance of 20
              to 30 yards on an occasional basis [a]n object weighing up to
              7 lbs. Clifford R. Miller is unable to perform at a sedentary
No. 13AP-418                                                                              12


              level due to residual physical impairments and it is my
              medical opinion that Clifford R. Miller is permanently and
              totally disabled from performing sustained remunerative
              employment due to his residual impairments related to his
              work injury of 9-07-2004, (Claim no. 04-401264).

       {¶ 35} On her physical capacity evaluation, Dr. Renneker noted that relator could
occasionally lift up to five pounds with his left upper extremity only, lift and carry on a
frequent basis one to two pounds with his left upper extremity only and that he needed to
lie down two times during an eight-hour workday with pillows supporting his right upper
extremity. She also noted that relator could occasionally twist, stoop and bend, never
crouch, could occasionally climb stairs but that he needed two railings but could only hold
on with his left arm, and that he could never use his right upper extremity for reaching,
handling, fingering, feeling, pushing and pulling. She also noted that he had to avoid
exposure to extreme cold as well as vibration and hazards such as climbing.
       {¶ 36} 16. The record also contains a progress note dated January 9, 2012 from the
Ohio State University Medical Center. Mary A. Wynd, M.D., indicated that relator's work
restrictions would include no use of his right arm.
       {¶ 37} 17. Relator also submitted the December 14, 2011 letter from CareWorks
informing him that he was not currently ready for vocational rehabilitation as follows:
              You have been found non feasible because Medical dated
              10/14/11 from Ohio State Medical Center states that you will
              proceed with permanent total disability and treat for chronic
              pain management. Also, IME dated 10/20/11 does not
              recommend Voc Rehab.

       {¶ 38} 18. An independent medical examination was conducted by Brian E.
Higgins, D.O. In his May 16, 2012 report, Dr. Higgins identified the allowed conditions in
relator's claim, identified the medical records which he reviewed, provided his physical
findings upon examination, and opined that relator's allowed physical conditions had
reached MMI, assessed a 23 percent whole person impairment, and found that relator
was capable of performing some sedentary work indicating that he may lift up to five
pounds with his right upper extremity with no repetitive activities with the right upper
extremity. He noted that most of the time, relator would be sitting but that he would be
able to walk for brief periods of time.
No. 13AP-418                                                                          13


      {¶ 39} 19. Michael A. Murphy, Ph.D., provided an evaluation dated May 21, 2012.
Dr. Murphy noted the allowed psychological condition, discussed relator's treatment and
opined that relator had a mild impairment in daily activities, social interactions, and an
adaptation.    Dr. Murphy did not find any impairment in relator's concentration,
persistence, and pace. Dr. Murphy concluded that relator's depression was mild, his
executive and cognitive functions were in tact, and his residual functioning was mildly
impaired.     Ultimately, Dr. Murphy concluded that relator's allowed psychological
condition had reached MMI, that he had a class 2 impairment of 12 percent and that he
was able to complete a normal workday and work week while maintaining regular
attendance from a psychological standpoint. Dr. Murphy concluded that relator was
capable of sustained employment.
      {¶ 40} 20. Relator's application was heard before an SHO on July 31, 2012 and
was denied. The SHO relied on the medical reports of Drs. Higgins and Murphy and
concluded that relator would be capable of performing at least limited sedentary work.
The SHO noted that relator's prior application had been denied in December 2009 and
that his claim was, thereafter, additionally allowed for the psychological condition. The
SHO also noted that relator was receiving Social Security Disability benefits and that he
had the following unrelated medical problems:
              [G]out, right carpal tunnel syndrome, tremors in his right
              hand, a heart catheterization, low back problems, and
              insomnia.

      {¶ 41} Thereafter, the SHO discussed the non-medical disability factors. The SHO
did find that relator's education and work history were negative factors affecting his
ability to become re-employed and that his age of 57 years was a neutral factor. The SHO
did note that relator's allowed conditions only restricted him with regard to his right
upper extremity and that his unrelated and non-allowed medical conditions could not be
used to either advance or hinder consideration of his PTD application.         The SHO
addressed the non-medical disability factors and concluded that relator was not entitled
to an award of PTD compensation, stating:
              Regarding the non-medical disability factors, it is found the
              Injured Worker is currently age 57. He testifies to completing
              the 6th grade in school, but failing the 7th, and then
No. 13AP-418                                                                14


           dropping out in order to start working. As a work history, the
           Injured Worker has performed laboring activities for fence
           construction companies for approximately 13 years, and he
           worked for the paving company in this claim for
           approximately 12 years. It is found that the Injured Worker's
           age is at this point a neutral factor, but that his education
           would be seen as a negative factor. His manual work history
           would indicate that he would not possess job skills
           transferable to other lighter jobs, and his work history would
           therefore also be a negative factor. However, it is very
           relevant to note that physically, this claim involves only the
           Injured Worker's right shoulder. The remainder of his
           physical well-being is not affected by this claim. While Dr.
           Higgins gave an opinion of ability to do limited sedentary
           work, there was no explanation as far as why the Injured
           Worker would be limited in his walking activities or in use of
           his left upper extremity by the allowed conditions. It is also
           noted that permanent total disability compensation
           encompasses only physical or psychological restrictions due
           to the allowed conditions, and that unrelated conditions may
           not be used to either advance or hinder consideration of
           permanent total disability.

           The Injured Worker has had contact with the rehabilitation
           division in the past, but these contacts, most recently in
           December of 2011, were not successful. This is due partly to
           the limitations provided by his physicians, and also is
           partially due to the Injured Worker's belief that he is
           permanently and totally disabled. This belief was stated to
           Dr. Higgins, and Dr. Richetta in his report of 12/15/2011 also
           indicated that the Injured Worker is "very unmotivated."

           In summary, it is found that the Injured Worker maintains
           the physical capacity to perform at least sedentary work. As
           discussed above, there are no physical allowances in this
           claim for conditions other than his right shoulder, and there
           is no indication that he could not perform walking activities
           or activities with his left upper extremity. It is recognized
           that there has been the additional allowance of the
           depressive disorder since permanent total disability was last
           denied in 2009, but he medical evidence from Dr. Murphy,
           as well as from a prior report dated 10/20/2011 from Dr.
           Hawkins, does not show there to be further significant
           functional limitations due to the psychological condition. It
           is therefore found that, if so inclined and motivated, the
           Injured Worker does maintain the potential to perform jobs
No. 13AP-418                                                                             15


              within the physical capacities specified above. Walking
              activities would not be limited, and use of the unaffected left
              upper extremity would likewise not be limited. There is no
              indication that the Injured Worker could not benefit from
              on-the-job training. The evidence on file is not found
              persuasive that the Injured Worker is permanently and
              totally disabled due to the conditions allowed in these claims,
              and the request for permanent total disability compensation
              must therefore be denied.

       {¶ 42} 21. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 43} Relator contends that the commission abused its discretion by denying him
PTD compensation because the commission's conclusion that he could return to
sedentary work contradicts the restrictions given by Dr. Higgins.
       {¶ 44} For the reasons that follow, the magistrate disagrees with relator's
argument.
       {¶ 45} 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).
       {¶ 46} 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).
No. 13AP-418                                                                              16


       {¶ 47} 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
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).
       {¶ 48} Ohio Adm.Code 4121-3-34(B) provides, in pertinent part, the following
classifications of physical demands of work:
                "Sedentary work" means exerting up to ten pounds of force
                occasionally (occasionally: activity or condition exists up to
                one-third of the time) and/or a negligible amount of force
                frequently (frequently: activity or condition exists from one-
                third to two-thirds of the time) to lift, carry, push, pull, or
                otherwise move objects. Sedentary work involves sitting most
                of the time, but may involve walking or standing for brief
                periods of time. Jobs are sedentary if walking and standing
                are required only occasionally and all other sedentary criteria
                are met.

       {¶ 49} When reading the above definition for sedentary work, it must be
remembered that a job is classified as "sedentary" provided that the job does not require a
person to lift more than ten pounds of force occasionally and/or a negligible amount of
force frequently to lift, carry, push, pull, or otherwise move objects. Not all sedentary jobs
require a person to lift ten pounds of force occasionally; however, a job cannot be
classified as sedentary if it requires one to exert more than ten pounds of force
occasionally.
       {¶ 50} In order for a job to be classified as sedentary, it is necessary that a person
be able to occasionally lift one, two, three, four, five, six, seven, eight, nine or ten pounds
of force occasionally and/or a negligible amount (less than one pound) frequently. Dr.
Higgins opined that relator could lift up to five pounds with his right upper extremity.
No. 13AP-418                                                                           17


This meets the first portion of the definition of sedentary work. Where, as here, relator
was restricted to lifting no more than five pounds with his right upper extremity, he was
limited to performing some sedentary work. Obviously, if a particular sedentary job
required him to lift more than five pounds with his right upper extremity, relator would
not be able to perform that particular sedentary job. However, there are sedentary jobs
that do not require that one lift more than five pounds with their right upper extremity.
As such, Dr. Higgins' five pound lifting restriction did not remove relator from being able
to perform sedentary work.
       {¶ 51} Dr. Higgins also indicated that relator avoid repetitive movements with his
right arm. It appears that relator asserts that this restriction conflicts with the second
portion of the definition requiring that one frequently lift a negligible amount of force.
The magistrate disagrees.
       {¶ 52} Frequent is defined in the Ohio Administrative Code as an activity that
exists from one-third to two-thirds of the time. Repetitive is not defined in the Ohio
Administrative Code but is defined in Webster's Ninth New Collegiate Dictionary 999
(1987) as follows:    "repetitious" which is defined as "characterized or marked by
repetition; esp: tediously repeating."     Clearly, "frequent" and "repetitive" are not
synonymous.     Nothing in Dr. Higgins report indicates that relator cannot move a
negligible amount of force frequently.
       {¶ 53} Relator also points out that Dr. Higgins made the comment that he would
be sitting most of the time and would be able to walk for a brief period of time. The
magistrate finds that this restriction would fit within the definition of sedentary work.
The fact that the SHO questioned why Dr. Higgins mentioned a limitation on his ability to
sit and walk when his claim was only allowed for right upper extremity conditions is not a
reason to remove that report from evidentiary consideration nor does it demonstrate that
the SHO misunderstood the classification of the various physical demands of work.
       {¶ 54} Relator's reliance on this court's decision in State ex rel. Libecap v. Indus.
Comm., 10th Dist. No. 96APD01-29, (Sept. 5, 1996), affirmed, 83 Ohio St.3d 178 (1998), is
unfounded. In State ex rel. Howard v. Millennium Inorganic Chems., 10th Dist. No.
03AP-637, 2004-Ohio-6603, ¶ 9-10, this court stated:
No. 13AP-418                                                                 18


           Libecap has been cited for the proposition that, "where a
           physician places the claimant generally in the sedentary
           category but has set forth functional capacities so limited
           that no sedentary work is really feasible * * * then the
           commission does not have discretion to conclude based on
           that report that the claimant can perform sustained
           remunerative work of a sedentary nature." State ex rel.
           Owens Corning Fiberglass v. Indus. Comm., 10th Dist. No.
           03AP-684, 2004-Ohio-3841, ¶ 56. The "commission cannot
           simply rely on a physician's ‘bottom line’ identification of an
           exertional category but must base its decision on the specific
           restrictions imposed by the physician in the body of the
           report." Ibid. The court in Owens Corning went on to
           explain:

           In Libecap, the problem was not that the doctor's report was
           defective because claimant was placed in the sedentary
           category. Doctors may be unaware of legal criteria and the
           doctor in that case had set forth clear and unambiguous
           functional restrictions in his discussion that would permit
           short periods of sedentary activity. Rather, the problem was
           with the commission's finding of capacity for sedentary,
           sustained remunerative employment based on a report that,
           read in its entirety, clearly precluded sustained remunerative
           employment of a sedentary nature.

           Conversely, where a physician's checklist states that the
           claimant is medically precluded from performing any
           sustained remunerative employment but where the narrative
           report, read in its entirety, clearly and unambiguously sets
           forth a capacity for sustained remunerative employment,
           then the commission lacks discretion to rely on that report
           for a finding of medical inability to perform any sustained
           remunerative employment.

           Id. at ¶ 56-57. (Emphasis sic.)

           "[F]unctional abilities may be so limited that only brief
           periods of work activities would be possible, which would not
           constitute sustained remunerative employment. * * * [That
           is,] regardless of the fact that the physician placed claimant
           in the 'sedentary' category, the specific restrictions [may be]
           so narrow as to preclude sustained remunerative
           employment." State ex rel. Clevite Elastomers v. Torok, 10th
           Dist. No. 02AP-116, 2002-Ohio-4770, ¶ 14.
No. 13AP-418                                                                             19


       {¶ 55} The problem found in Libecap is simply not present here. The restrictions
in Dr. Higgins' report do not preclude an ability to perform sedentary work.
       {¶ 56} Relator also criticizes the commission's handling of his rehabilitation efforts
and his potential for rehabilitation arguing that, given his age of 57 years, his sixth grade
education, his ability to read, write, and perform basic math, but not well, and the fact
that he has been involved in construction type work his entire life leads to but one
conclusion: he would not benefit from any vocational rehabilitation and he would not be
able to learn new work. Relator argues that his situation is analogous to that of the
claimant in State ex rel. Soto v. Indus. Comm., 69 Ohio St.3d 146 (1994). For the reasons
that follow, this magistrate disagrees.
       {¶ 57} Antonio Soto sustained six work related injuries during the course of his
employment as a refuse collector for the city of Lorain. His most severe injury was
allowed for a tear of the right rotator cuff. Soto was educated in Puerto Rico, was literate
in Spanish, but not in English, had a sixth or seventh grade education, and had only
worked as a heavy laborer.       Soto was restricted to sedentary employment and the
commission concluded that he was not entitled to an award of PTD compensation.
       {¶ 58} The commission conceded that its order denying PTD compensation
violated the requirements of Noll.        The Supreme Court of Ohio granted Soto relief
pursuant to Gay after finding that, at best, Soto was limited to work that did not entail
lifting his right arm above his waist. Finding that this restriction may be consistent with
sedentary employment, the court noted that Soto's English illiteracy, his lack of school,
and history as a heavy laborer were irreconcilable with opportunities for sedentary
employment.
       {¶ 59} Contrary to relator's assertions, the magistrate does not find that the facts of
Soto are analogous here. Relator is ten years younger than Soto and is fluent in English.
Further, the commission found that there was no indication that relator could not benefit
from on-the-job training.
       {¶ 60} The commission is free to conduct its own analysis of the non-medical
disability factors without reference to, or reliance on, any other vocational evidence in the
record. State ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266 (1997). Here, the
commission acted as its own vocational expert and determined that relator could benefit
No. 13AP-418                                                                         20


from on-the-job training and was not entitled to an award of PTD compensation. To the
extent that even this portion of relator's argument relies on his assertion that the SHO
improperly applied the classification of physical demands of work and found that he was
capable of more than sedentary work, the magistrate has already rejected that argument.
      {¶ 61} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion in denying his application for
PTD compensation and 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).
