[Cite as State ex rel. Montevideo v. Indus. Comm., 2015-Ohio-4867.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State ex rel. Joseph Montevideo,                       :

                 Relator,                              :

v.                                                     :                 No. 15AP-43

Industrial Commission of Ohio and                      :              (REGULAR CALENDAR)
National Gypsum Services Company,
                                                       :
                 Respondents.
                                                       :




                                           D E C I S I O N

                                   Rendered on November 24, 2015


                 Heller, Maas, Moro & Magill Co., L.P.A., and Robert J.
                 Foley, for relator.

                 Michael DeWine, Attorney General, and Lisa R. Miller, for
                 respondent Industrial Commission of Ohio.

                 Kastner, Westman, & Wilkins LLC, and Mark E. Snyder, for
                 respondent National Gypsum Company.

                                            IN MANDAMUS

BRUNNER, J.

        {¶ 1} Relator, Joseph Montevideo, has filed this original action requesting the
court to issue a writ of mandamus directing respondent Industrial Commission of Ohio
("commission") to vacate its June 5, 2014 order in which it exercised continuing
jurisdiction to vacate the January 23, 2014 order of its staff hearing officer ("SHO"). The
SHO had decided to award relator permanent total disability ("PTD") compensation, and
relator asks this court to direct the commission to order PTD compensation as did the
SHO.
No. 15AP-43                                                                              2


       {¶ 2} The matter was referred to a magistrate pursuant to Civ.R. 53(C) and Loc.R.
13(M) of the Tenth District Court of Appeals. The magistrate's decision included findings
of fact and conclusions of law and is appended hereto.
       {¶ 3} Recommending that we deny a writ of mandamus, the magistrate concluded
that the commission did not abuse its discretion in exercising its continuing jurisdiction,
as it decided that the SHO had made a clear mistake of law in failing to address whether
relator had voluntarily retired in 1995. Due to the latency period of the occupational
disease, which was diagnosed long after retirement, the commission found that PTD
compensation was not precluded by retirement, but in its de novo consideration of
relator's PTD application the commission also accepted the conclusions of Ira J. Ungar,
M.D. and Paul B. Bartos, M.D., who had examined relator at the requests of his employer,
respondent National Gypsum Services Company, and the commission, respectively, that
relator yet was able to perform sedentary work notwithstanding the industrial injury. The
magistrate held that the commission did not abuse its discretion in its consideration and
analysis of non-medical disability factors: it did not have to accept the conclusions of
relator's proffered vocational expert, and it properly considered and evaluated relator's
work history.
       {¶ 4} No objections to the magistrate's decision have been filed. We find no error
of law or other defect in the decision. Therefore, we adopt the decision as our own,
including the findings of fact and conclusions of law contained therein.
       {¶ 5} In accordance with the magistrate's decision, we deny the requested writ of
mandamus.
                                                                Writ of mandamus denied.

                      KLATT and LUPER SCHUSTER, JJ., concur.
No. 15AP-43                                                                           3


                                    APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State ex rel. Joseph Montevideo,            :

              Relator,                      :

v.                                          :                   No. 15AP-43

Industrial Commission of Ohio and           :              (REGULAR CALENDAR)
National Gypsum Services Company,
                                            :
              Respondents.
                                            :



                         MAGISTRATE'S DECISION

                             Rendered on September 10, 2015


              Heller, Maas, Moro & Magill Co., L.P.A., and Robert J.
              Foley, for relator.

              Michael DeWine, Attorney General, and Lisa R. Miller, for
              respondent Industrial Commission of Ohio.

              Kastner, Westman, & Wilkins LLC, and Mark E. Snyder, for
              respondent National Gypsum Company.


                                    IN MANDAMUS

      {¶ 6} In this original action, relator, Joseph Montevideo, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its June 5, 2014 order that exercised continuing jurisdiction to vacate the
January 23, 2014 order of its staff hearing officer ("SHO") that had awarded permanent
total disability ("PTD") compensation, and to enter an order reinstating the SHO's order
of January 23, 2014.
No. 15AP-43                                                                                   4


Findings of Fact:
       {¶ 7} 1. On May 25, 2012, relator filed an application for workers' compensation
benefits. The application alleged that relator had acquired an occupational disease arising
out of and in the course of his employment with respondent, National Gypsum Company
("National Gypsum" or "employer"), a state-fund employer.1
       {¶ 8} 2. On December 17, 2012, the Ohio Bureau of Workers' Compensation
("bureau") mailed an order allowing the industrial claim (No. 11-869843) for "asbestosis;
pleurisy without mention of effusion or current tuberculosis bilateral." The bureau and
the commission officially recognize March 23, 2011 as the date of injury or diagnosis. The
bureau order was not administratively appealed.
       {¶ 9} 3. Relator's date of birth is January 6, 1933.
       {¶ 10} 4. In 1995, at the age of 62 years, relator retired from his employment as a
machine operator at National Gypsum where he had worked for some 43 years.
       {¶ 11} 5. Relator has not returned to any employment following his 1995
retirement.
       {¶ 12} 6. On April 10, 2013, at his own request, relator was examined by
Waleed N. Mansour, M.D. In his five-page narrative report, Dr. Mansour opines:
              Based on a reasonable degree of medical certainty, the
              known mechanism of injury, review of the available medical
              documentation, interview with the [Injured Worker] and
              today's examination, I am of the medical opinion that the
              impairments relative to the allowed conditions in the claims
              reviewed rise to the necessary criteria to meet definitions by
              Ohio Rule for Permanent and Totally Disability from any and
              all gainful employment.

       {¶ 13} 7. On June 4, 2013, relator filed an application for PTD compensation. In
support, relator submitted the report of Dr. Mansour.
       {¶ 14} 8. On his application, under the "Education" section, relator indicated that
the fifth grade was the highest grade of school he had completed. Completion of his
education occurred in Italy in 1943. Relator never obtained a certificate for passing the


1 The complaint alleges that the employer is National Gypsum Services Company. However, National
Gypsum Company answered the complaint.
No. 15AP-43                                                                            5


General Education Development test ("GED"). Thereafter, relator immigrated to the
United States.
      {¶ 15} 9. On August 14, 2013, at the employer's request, relator was examined by
Ira J. Ungar, M.D. In his four-page narrative report dated August 17, 2013, Dr. Ungar
opined:
              Although it is quite clear that Mr. Montevideo could not
              return to work in any form of substantive manual labor, he is
              clearly capable of job duties in the sedentary or very light job
              duty categories. This is fully consistent with his objective
              evaluation on this date and fully consistent with an
              individual who is responsible for all their activities of daily
              living.

      {¶ 16} 10. On September 19, 2013, at the commission's request, relator was
examined by Paul B. Bartos, M.D. In his five-page narrative report dated October 2, 2013,
Dr. Bartos opined:
              Based upon the history and physical examination, review of
              the medical documentation provided, review of mechanism
              of injury, and treatment received and response to treatment,
              as well as the effect of the claimant's symptoms on his
              activities of daily living, it is my professional opinion that the
              claimant is capable of light duty work.

              He has stable asbestosis. This has not changed significantly
              over the past number of years. He is currently receiving no
              treatment for this condition. He is on no prescribed
              medications nor is he on supplemental oxygen.

              He is independent with his activities of daily living and is
              able to drive short distances. He is capable of lifting up to 20
              pounds on an occasional basis and up to 10 pounds on a
              frequent basis. This places him in the category of light duty
              capacity.

      {¶ 17} 11. On November 4, 2013, at his own request, relator was interviewed and
tested by vocational expert Shannon C. Valentine. In her four-page narrative report,
Valentine opines:
              In the opinion of this Vocational Specialist, Mr. Montevideo
              is displaying insufficient worker traits to qualify for gainful
              employment. He presents with chronic respiratory
No. 15AP-43                                                                               6


              limitations. The combined effects of these limitations would
              impact negatively on his capacity to engage in sustained
              competitive employment. He also presents with neither
              marketable nor transferable skills given his past relevant
              work history and current physical limitations.

              Mr. Montevideo does not appear capable of engaging in
              activities of a light duty nature, as indicated by Paul Bartos,
              M.D. Light duty work requires working at a production rate
              pace entailing the constant pushing/pulling of materials even
              though the weight of those materials is negligible. His
              general performance on dexterity testing would suggest
              decreased productivity and therefore would not be
              considered competitive in the local labor market. Light duty
              work would require an individual to be up on his/her feet for
              up to 68% of the workday. Mr. Montevideo does not appear
              capable of meeting this physical demand level. At best, Mr.
              Montevideo appears limited to sedentary activities.

              In addition to this, Mr. Montevideo is of advanced age (80)
              for work and therefore he is not, in my professional opinion,
              a candidate for vocational rehabilitation services.

              When considering all information presented, it is
              the opinion of this Vocational Specialist that Mr.
              Montevideo would not be capable of engaging in any
              sustained, remunerative employment.

(Emphasis sic.)
       {¶ 18} 12. Following a January 23, 2014 hearing, an SHO issued an order
awarding PTD compensation starting April 10, 2013 based exclusively upon the report of
Dr. Mansour. The SHO held that it was unnecessary to discuss or analyze the non-
medical disability factors. The SHO's order was mailed on January 28, 2014.
       {¶ 19} 13. On February 11, 2014, the employer moved for reconsideration of the
SHO's order of January 23, 2014. In its motion, the employer alleged that the SHO's
order contains "clear mistakes of fact and law."
       {¶ 20} 14. The employer alleged that the SHO erred in failing to address whether
relator had voluntarily retired in 1995 when he left his employment at National Gypsum.
No. 15AP-43                                                                            7


       {¶ 21} Also, the employer alleged that the SHO erred in relying upon the report of
Dr. Mansour. The employer argued that the report was not some evidence upon which
the commission could rely.
       {¶ 22} 15. On May 15, 2014, the three-member commission mailed an
interlocutory order, stating:
              It is the finding of the Industrial Commission the Employer
              has presented evidence of sufficient probative value to
              warrant adjudication of the Request for Reconsideration
              regarding the alleged presence of a mistake of fact and a
              mistake of law of such character that remedial action would
              clearly follow.

              Specifically, it is alleged the Staff Hearing Officer made clear
              mistakes of law and fact when he granted the IC-2
              Application for Compensation for Permanent Total
              Disability, as the Staff Hearing Officer failed to address
              whether the Injured Worker's retirement in 1995 was
              voluntary or involuntary, and the Staff Hearing Officer relied
              upon the 04/10/2013 report of Waleed Mansour, M.D.,
              which is not some evidence to support an award of
              permanent total disability compensation.

       {¶ 23} 16. Following a June 5, 2014 hearing, the commission issued an order
granting the employer's motion for reconsideration and vacating the SHO's order of
January 23, 2014. The commission exercised its continuing jurisdiction over the SHO's
order of January 23, 2014 on grounds that the order contains a clear mistake of law by
failing to address whether relator voluntarily retired in 1995.
       {¶ 24} Even though the commission found a clear mistake of law on grounds that
the SHO failed to address voluntary retirement, the commission further held that the
retirement does not preclude PTD compensation because of the long latency period of the
occupational disease which was diagnosed long after the retirement. The commission
relied upon State ex rel. Liposchak v. Indus. Comm., 73 Ohio St.3d 194 (1995) and State
ex rel. Vansuch v. Indus. Comm., 83 Ohio St.3d 558 (1998) — two cases in which the
retirement of the injured worker was held to not preclude PTD compensation because of
the long latency period of the occupational disease at issue.
No. 15AP-43                                                                              8


      {¶ 25} Thus, while the commission found that the SHO's order of January 23, 2014
contains a clear mistake of law for the failure to address the retirement issue, the
commission ultimately determined that the retirement issue did not preclude the PTD
compensation that the SHO's order had awarded. However, because the commission
vacated the SHO's order upon the exercise of continuing jurisdiction, the commission
determined de novo the merits of the PTD application.
      {¶ 26} In determining the merits of the PTD application de novo, the commission
did not rely upon the report of Dr. Mansour as the SHO had done.                Rather, the
commission relied upon the October 2, 2013 report of Dr. Bartos and the August 17, 2013
report of Dr. Unger in determining residual functional capacity. That is, based upon the
two medical reports, the commission found that the industrial injury permits sedentary
work. Given that the commission determined that relator is medically able to perform
sedentary work, the commission, unlike the SHO, found it necessary to analyze the non-
medical disability factors. The commission explained:
              The Injured Worker is currently 81 years of age, which is
              found to be a negative vocational factor. However, a mere
              increase in age, rather than the allowed disability, may not
              be the sole causative factor to support an award. State ex rel.
              Speelman v. Indus. Comm., 73 Ohio App.3d 757, 590 N.E. 2d
              192 (1992).

              The Injured Worker attended school through the fifth grade
              in Italy, then immigrated to the United States. The Injured
              Worker is able to read and perform basic math, but does not
              write well per his IC-2 Application for Compensation for
              Permanent Total Disability. The Commission finds this
              factor is neutral as the Injured Worker has no educational
              problems and is able to read and perform basic math.
              Furthermore, the Injured Worker's education was not a
              barrier to obtaining and sustaining employment for over
              forty years.

              The Injured Worker worked approximately 43 years for the
              Employer as a machine operator, and worked approximately
              11 years as a tailor for a department store, per the Injured
              Worker's IC-2 Application. The Injured Worker worked for
              two different employers for long periods of time. The
              Commission finds this factor is positive as it demonstrates a
              loyal, stable, and dependable employee. The Commission
No. 15AP-43                                                                                9


                finds the Injured Worker's former position as a tailor
                provided the Injured Worker with transferrable skills, which
                can be utilitized [sic] in a sedentary position. The Injured
                Worker could perform tailor work activities as long as he was
                able to sit most of the time and walking and standing were
                only required occasionally.

                The Commission finds the Injured Worker has not
                demonstrated efforts to return to work or to improve his
                reemployment potential. Per State ex rel. Wilson v. Indus.
                Comm., 80 Ohio St.3d 250, 685 N.E.2d 774 (1997), it is not
                unreasonable to expect an injured [w]orker to participate in
                return-to-work efforts to the best of his or her abilities, or to
                take the initiative to improve reemployment potential. See
                State ex re[l]. Wilson v. Indus. Comm., 80 Ohio St.3d 250,
                253 685 N.E.2d 774 (1997). While extenuating circumstances
                can excuse an injured worker's participation in re-education
                or retraining efforts, injured workers should no longer
                assume that a participatory role, or lack thereof, will go
                unscrutinized. Id.

                Based upon Drs. Ungar and Bartos' reports, the Injured
                Worker's transferable skills as a tailor, and the Injured
                Worker's current physical abilities, the Commission does not
                find the Injured Worker is precluded from performing
                sustained remunerative employment.

          {¶ 27} 17. On January 20, 2015, relator, Joseph Montevideo, filed this mandamus
action.
Conclusions of Law:
          {¶ 28} Two issues are presented: (1) did the commission abuse its discretion in the
exercise of its continuing jurisdiction by finding that the SHO's order of January 23, 2014
contained a clear mistake of law by failing to address the retirement issue, and (2)
assuming that the commission did not abuse its discretion in the exercise of its continuing
jurisdiction, did the commission abuse its discretion in its consideration and analysis of
the non-medical disability factors.
          {¶ 29} The magistrate finds: (1) the commission did not abuse its discretion in
exercising its continuing jurisdiction, thus reaching the merits of the PTD application, and
(2) the commission did not abuse its discretion in its consideration and analysis of the
non-medical disability factors.
No. 15AP-43                                                                               10


       {¶ 30} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
                                        First Issue
       {¶ 31} Turning to the first issue, a voluntary abandonment from the workforce
prior to asserting permanent total disability precludes the payment of compensation for
that disability. State ex rel. Cinergy Corp./Duke Energy v. Heber, 130 Ohio St.3d 194,
2011-Ohio-5027 citing State ex rel. Baker Material Handling Corp. v. Indus. Comm., 69
Ohio St.3d 202 (1994), paragraph two of the syllabus. The character of a claimant's
retirement is therefore critical to a PTD analysis. Id. When the commission fails to
address the voluntariness of a retirement when that issue is put before it in a PTD
proceeding, the commission has abused its discretion and mandamus relief will be
granted. Id.
       {¶ 32} Here, relator does not dispute that the retirement issue was raised by the
employer at the January 23, 2014 hearing before the SHO despite the fact that the SHO's
order fails to address the retirement issue.
       {¶ 33} According to relator, the SHO was not required to address the retirement
issue when the retirement does not preclude PTD compensation. According to relator,
"[t]he Commission chose to exercise continuing jurisdiction solely because the Staff
Hearing Officer did not take on the inconsequential task of addressing the issue in his
order." (Relator's brief, 13-14.)
       {¶ 34} Relator's argument is premised upon a hindsight analysis of the retirement
issue. In effect, relator is arguing that the SHO can choose to privately address the issue
and, if PTD is not precluded, fail to place the analysis in the order for court review.
Relator cites to no authority to support the proposition. It is well-settled law that the
commission abuses its discretion when it fails to address in its order a key issue that was
put before it in determining a request for compensation. State ex rel. Gen. Am. Transp.
Corp. v. Indus. Comm., 49 Ohio St.3d 91 (1990); State ex rel. B.O.C. Group, Gen. Motors
Corp. v. Indus. Comm., 58 Ohio St.3d 199 (1991); State ex rel. Peabody Coal Co. v. Indus.
Comm., 66 Ohio St.3d 639 (1993).
       {¶ 35} Moreover, in a case similar to the instant action, this court recently rejected
an argument similar to the one put forth by relator here. In State ex rel. Sheppard v.
No. 15AP-43                                                                         11


Indus. Comm., 10th Dist. No. 11AP-553, 2012-Ohio-4301, the claimant, Robert L.
Sheppard, applied for PTD compensation. Following an order of the SHO awarding PTD
compensation, the employer moved for reconsideration.           The commission granted
reconsideration based upon its continuing jurisdiction and ultimately denied the PTD
application. This court stated:
              Although we agree with the general principle that the
              commission is required only to cite evidence in support of
              the order, the commission's concern here was that the SHO
              failed to give any indication whatsoever that he even
              considered the employer's "critical" argument regarding the
              intervening injury. This court has before found that an SHO's
              failure to address an issue raised by an employer constitutes
              a mistake of law sufficient for the commission to invoke
              continuing jurisdiction. See State ex rel. Mackey v. Ohio
              Dept. of Edn., 10th Dist. No. 09AP-966, 2010-Ohio-3522,
              ¶ 8, citing State ex rel. Hayes v. Indus. Comm., 10th Dist.
              No. 01AP-1087, 2002-Ohio-3675 (concluding it was an abuse
              of discretion for an SHO to fail to address an issue when the
              employer had presented the issue; the commission did not
              abuse its discretion by invoking its continuing jurisdiction to
              address the issue). Furthermore, we cannot simply assume
              that the SHO rejected the intervening-injury argument based
              upon his failure to address it. See id. at ¶ 7-8 (rejecting
              claimant's contention that, by not addressing the employer's
              argument, the SHO "obviously" rejected the argument).
              Therefore, in this case, we find the commission properly
              exercised continuing jurisdiction on the basis that the SHO's
              failure to address the employer's critical argument regarding
              the alleged intervening injury constituted a mistake of law.

Id. at ¶ 4.
       {¶ 36} Accordingly, the magistrate finds that the commission did not abuse its
discretion in exercising its continuing jurisdiction.
                                       Second Issue
       {¶ 37} In its June 5, 2014 order, the commission stated reliance upon the
October 2, 2013 report of Dr. Bartos and the August 17, 2013 report of Dr. Ungar in
determining residual functional capacity. Ohio Adm.Code 4121-3-34(B)(4). Based upon
the two reports, the commission concluded that relator is medically able to perform
sedentary work.
No. 15AP-43                                                                               12


        {¶ 38} Here, relator does not challenge the medical reports of Drs. Bartos and
Ungar nor the commission's conclusion that relator is medically able to perform sedentary
work.
        {¶ 39} However, relator does challenge the commission's analysis of the non-
medical disability factors.
        {¶ 40} To begin, relator seems to suggest that the commission was required to rely
upon the Valentine vocational report because there was no other vocational report
submitted. This is incorrect. The commission may credit offered vocational evidence, but
expert opinion is not critical or even necessary because the commission is the expert on
the issue. State ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266, 271 (1997).
        {¶ 41} Relator also seems to suggest that the commission abused its discretion in
analyzing relator's work history.     The commission's order notes that relator worked
approximately 43 years for the employer, National Gypsum, as a machine operator. The
commission also found that relator worked for 11 years as a tailor in a department store.
The commission found this factor to be a "positive" as it demonstrates a loyal, stable, and
dependable employee.
        {¶ 42} The commission's analysis regarding work history is supported by State ex
rel. Ewart v. Indus. Comm., 76 Ohio St.3d 139, 142-43 (1996), wherein the court states:
                 The freedom to independently evaluate nonmedical factors is
                 important because nonmedical factors are often subject to
                 different interpretation.

                 ***

                 The same can be said in this case with regard to claimant's
                 work history. Claimant worked for Refiners Transport and
                 Terminal as a trucker for twenty-two years. Claimant's long
                 tenure can be viewed negatively because it prevented the
                 acquisition of a broader range of skills that more varied
                 employment might have provided. It also, however, suggests
                 a stable, loyal and dependable employee worth making an
                 investment in. This is an asset and is an interpretation as
                 valid as the first.

Id. at 141-42.
No. 15AP-43                                                                              13


       {¶ 43} Thus, based upon Ewart, it was well within the commission's fact finding
discretion to view relator's work history as "positive" because, as the commission found, it
demonstrated a "loyal, stable, and dependable employee."
       {¶ 44} It can be further noted that the commission found that relator's
employment as a tailor provided relator with transferrable skills. Ohio Adm.Code 4121-3-
34-(B)(3)(c) provides:
              (iv) "Transferability of skills" are skills that can be used in
              other work activities. Transferability will depend upon the
              similarity of occupational work activities that have been
              performed by the injured worker. Skills which an individual
              has obtained through working at past relevant work may
              qualify individuals for some other type of employment.

              (v) "Previous work experience" is to include the injured
              worker's usual occupation, other past occupations, and the
              skills and abilities acquired through past employment which
              demonstrate the type of work the injured worker may be able
              to perform. Evidence may show that an injured worker has
              the training or past work experience which enables the
              injured worker to engage in sustained remunerative
              employment in another occupation. The relevance and
              transferability of previous work skills are to be addressed by
              the adjudicator.

       {¶ 45} Thus, the commission reasoned that relator can return to the work that he
has previously demonstrated to have the skills to perform. Given that the commission
found that relator is medically able to perform sedentary work, it was logical to conclude
that relator can return to "tailor work."
       {¶ 46} Relator further suggests that the commission abused its discretion in
determining that his educational status is a "neutral" factor. The commission explained
that relator is able to read and perform basic math and, furthermore, his education had
not been a barrier to obtaining work for over 40 years. Obviously, the commission was
not persuaded that relator's fifth grade education was a barrier to re-employment. That
is, relator's educational status permitted him to work for some 43 years. Clearly, the
commission's finding that relator's educational status was a "neutral" factor was well
within the commission's discretion.
No. 15AP-43                                                                          14


      {¶ 47} Thus, for all the above reasons, the magistrate finds that the commission
did not abuse its discretion in finding relator able to perform sustained remunerative
employment.
      {¶ 48} Accordingly, 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).
No. 15AP-43   15
