[Cite as State ex rel. Crawford v. Indus. Comm., 2014-Ohio-2911.]
                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Larry Crawford,                  :

                 Relator,                              :

v.                                                     :               No. 13AP-929

Industrial Commission of Ohio and                      :            (REGULAR CALENDAR)
Custodis Cottrell, Inc.,
                                                       :
                 Respondents.
                                                       :




                                           D E C I S I O N

                                      Rendered on June 30, 2014



                 Philip J. Fulton Law Office, Michael P. Dusseau and
                 Chelsea J. Fulton, for relator.

                 Michael DeWine, Attorney General, and Brian J. Becker, for
                 respondent Industrial Commission of Ohio.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

O'GRADY, J.

        {¶ 1} Relator, Larry Crawford, filed this original action requesting this court issue
a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission")
to vacate its order denying relator's application for permanent total disability ("PTD")
compensation and to issue an order finding relator is entitled to said compensation or, in
the alternative, to issue an order which considers relator's attempts at vocational
rehabilitation.
        {¶ 2} This 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 issued the appended
decision, including findings of fact and conclusions of law, and recommended this court
No. 13AP-929                                                                                 2


deny relator's request for a writ of mandamus. Relator filed objections to the magistrate's
decision.
        {¶ 3} Relator delineates two objections:
              The Magistrate Erred In Not Finding an Abuse of Discretion
              or Even Addressing the Commission's Punishment of Relator
              For His Positive Rehabilitation Attempts.

              The Magistrate Erred When She Concluded That the Injured
              Worker Did Not Put Forth His Best Efforts in Being
              Rehabilitated.

        {¶ 4} Relator argues under his first objection the magistrate erred by not finding
the commission abused its discretion. Relator claims the magistrate failed to address the
commission's "use of [r]elator's positive rehabilitation attempts as a means of punishment
and ultimate basis for denying PTD." (Relator's Objections, 5.) We disagree. The
magistrate quoted from the staff hearing officer's order including the portion relater takes
issue with, which states: "[Relator] was able to learn and perform up to skilled work in the
past.   This is supported by the fact he was found to be a candidate for vocational
rehabilitation and completed a program in 2008." (Attached Magistrate's Decision, ¶ 20.)
Relator points out that he did not "complete" the program. Instead, his vocational
rehabilitation file was closed for a number of reasons. The magistrate quoted extensively
from the vocational rehabilitation case manager's closure report, and she discussed and
analyzed that report at length. There is no merit to relator's assertion that the magistrate
did not address relator's rehabilitation attempts, or the commission's consideration
thereof. Moreover, we agree with the magistrate's conclusion that the commission did not
abuse its discretion.
        {¶ 5} Relator also argues the magistrate erred in applying the law in light of his
rehabilitation attempts. Specifically, he contends the magistrate misapplied State ex rel.
Ramsey v. Indus. Comm., 10th Dist. No. 99AP-733 (Mar. 30, 2000) and State ex rel.
Guthrie v. Indus. Comm., 133 Ohio St.3d 244, 2012-Ohio-4637. We disagree. The
magistrate correctly applied the law. Accordingly, relator's first objection is overruled.
        {¶ 6} Relator argues under his second objection the magistrate erred when she
concluded relator did not put forth his best efforts at vocational rehabilitation. The
magistrate did not arrive at that conclusion. The magistrate stated, "to the extent that
No. 13AP-929                                                                               3


relator argues that he made a serious effort at rehabilitation, the magistrate disagrees with
relator's assertion that the commission was required to find that he made a serious effort
at vocational rehabilitation." (Attached Magistrate's Decision, ¶ 33.) The magistrate was
discussing the commission's obligation, not finding that relator indeed failed to exercise
his best efforts. The magistrate later commented:
              [A]lthough relator contends that he made a serious effort at
              rehabilitation and that the vocational rehabilitation closure
              report indicates a failure to be rehabilitated despite his best
              efforts, the magistrate finds that relator's assertion is not
              necessarily supported by the report.

              As in State ex rel. Guthrie v. Indus. Comm., 133 Ohio St.3d
              244, 2012-Ohio-4637, the vocational evidence here has both
              negative and positive aspects and the commission could
              accept the negative aspects as the ultimate interpretation of
              the vocational evidence. The closure report simply is not as
              favorable as relator asserts.

(Attached Magistrate's Decision, ¶ 42-43.) These factual observations are accurate as is
the magistrate's legal conclusion. See State ex rel. Brahler v. Kent State Univ., 10th Dist.
No. 13AP-143, 2013-Ohio-5299, ¶ 4.
       {¶ 7} Relator also directs our attention to documentation in the record that
indicates relator received non-working wage loss compensation for 200 weeks prior to the
commission denying his application for PTD compensation.              That documentation
indicates relator had to continually submit forms evidencing a good-faith job search effort
in order to continue to receive those benefits. Relator asserts "his unsuccessful job search
attempt for nearly four years confirms that he did put forth his best efforts at
rehabilitation but instead was unable to obtain sustained remunerative employment due
to his injury and lack of transferable skills." (Relator's Objections, 9.) We cannot agree.
As the magistrate noted, the record before this court does not contain the records of
relator's job search efforts. We are not willing to assume those records are so favorable to
relator that the commission abused its discretion, in light of those records, by denying
relator's application for PTD compensation. Accordingly, relator's second objection is
overruled.
       {¶ 8} Following our examination of the magistrate's decision, an independent
review of the record pursuant to Civ.R. 53, and due consideration of relator's objections,
No. 13AP-929                                                                           4


we overrule the objections and adopt the magistrate's findings of fact and conclusions of
law. Relator's request for a writ of mandamus is denied.
                                                                   Objections overruled;
                                                              writ of mandamus denied.

                         SADLER, P.J., and TYACK, J., concur.
No. 13AP-929                                                                           5


                                         APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel. Larry Crawford,         :

              Relator,                        :

v.                                            :                  No. 13AP-929

Industrial Commission of Ohio and             :              (REGULAR CALENDAR)
Custodis Cottrell, Inc.,
                                              :
              Respondents.
                                              :



                         MAGISTRATE'S DECISION

                                Rendered on April 24, 2014



              Philip J. Fulton Law Office, Michael P. Dusseau and
              Chelsea J. Fulton, for relator.

              Michael DeWine, Attorney General, and Brian J. Becker, for
              respondent Industrial Commission of Ohio.


                                        IN MANDAMUS

       {¶ 9} Relator, Larry Crawford, 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 and
totally disability ("PTD") compensation and ordering the commission to find that he is
entitled to that compensation or, in the alternative, issue an order which considers
relator's attempts at vocational rehabilitation.
No. 13AP-929                                                                              6


Findings of Fact:
        {¶ 10} 1. Relator sustained a work-related injury on September 19, 1989 and his
workers' compensation claim has been allowed for the following conditions:
              Broken ribs; broken pelvis; fracture thoracic spine; right
              shoulder and right humerus contusions; posterior scalp
              lacerations in the occipital region with large hematoma;
              laceration of left forehead; facial lacerations; brain
              concussion; lung contusion and pulmonary embolus and
              bilateral pleural effusion with probable intra-parenchymal
              hemorrhage; traumatic spondylolisthesis T6-T7 with
              concomitant T7 rib fractures; transversus process fractures;
              laminae fractures; fusion from T5 to T8; fractures of left iliac
              bone and separation of the sacro-illiac joint; paralytic ileus;
              subluxation of the dorsal spine at the level of D7 and D8;
              laceration of the left lateral eye area; multiple abrasions and
              contusions both legs; right autogenous, iliac bone graft;
              adjustment disorder with depressed mood.

        {¶ 11} 2. Relator filed his first application for PTD compensation on December 2,
2005.
        {¶ 12} 3. Following a hearing before a staff hearing officer ("SHO") on March 31,
2006, relator's application was denied. The SHO relied on medical reports that relator
was capable of performing light work and most aspects of medium work, except that he
was limited to lifting 30 pounds and that his psychiatric condition was not work
prohibitive. Thereafter, the SHO discussed the non-medical disability factors, stating:
              The injured worker is currently only 50 years of age. He went
              to school through the 11th grade, but obtained his GED. He
              can read, write, and do basic math. He has work experience
              as a carpenter. He has never participated in any type of
              rehabilitation program. There is no evidence that he has ever
              tried to return to work.

              The injured worker is only 50 years of age. He has his GED.
              While he can't return to most of the physical demands of
              carpentry, he has demonstrated work abilities in this area.
              Dr. Tosi stated the injured worker appeared to have average
              intelligence. A man of 50 years of age with a GED and
              average intelligence should be able to learn and obtain a job
              in the light work level. In any case, he is under an obligation
              to make a good faith effort to try to return to work.
No. 13AP-929                                                                         7


              Since the injured worker is capable of at least light duty work
              related to the allowed conditions in the claim and because he
              has a capacity intellectually to perform light work, the
              application is denied.

        {¶ 13} 4. After relator's first application for PTD compensation was denied, he
first requested and was approved into a vocational rehabilitation program through the
Ohio Bureau of Workers' Compensation in March 2008.
        {¶ 14} 5. Relator's vocational rehabilitation file was closed on September 26,
2008.    In that report, relator's case manager noted that relator had the following
negative impacts on his ability to become re-employed which were not related to the
allowed conditions in his claim:
              He does have past legal activity which impacts what jobs he
              can do[.] He does not have a valid Ohio driver's license due
              to a DUI prior to 2003 nor a vehicle[.] He is not willing to
              relocate due to local family and desires at least $23/hour in
              wages[.] He is limited to part time employment[.]

        {¶ 15} Thereafter, relator's case manager described the course of relator's
program and the reasons why the program was closed, stating:
              The RTW hierarchy was chosen as DJDE as he can not go
              back to the EOR, the Union Hall, and carpentry is beyond his
              physical abilities[.] An original plan was written for JSST,
              Job search, JPS, Case Management, LM, and Bus pass[.]
              Plan Amendment #1 was written to extend JSST one week
              due to a problem where COTA messed up the bus pass and
              he was not able to make JSST meeting[.] Plan Amendment
              #2 was written to extend job search activities[.] He has some
              troubles with taking the bus and with elevated blood
              pressure due to some heat exposure[.] He experienced
              increased pain levels[.] He had had problems with his phone
              but got it resolved[.] Plan Amendment #3 was written to
              continue job search to week 13[.] The week of 7/14, Mr.
              Crawford had to leave his current housing as it was sold and
              had to find a new place to live. He had difficulty with his
              phone during this time but got it fixed[.] He also had some
              problems with COTA and his bus pass which were then
              resolved[.] Plan Amendment #4 was written for extension of
              job search beyond 13 weeks per chapter 4 guidelines due to
              the extenuating circumstances of the number of barriers he
              has such as his limited physical ability, seeking part time
              work and the need to job search via the bus line[.] The plan
No. 13AP-929                                                                            8


             was written for two additional weeks of job search and JPS
             hours[.] COTA sent him the wrong bus pass and it was never
             resolved by the end of the plan[.] Changes were made to the
             resume for his new address[.] The JPS had a death in the
             family and was out til 8/25/08 but another JPS covered with
             him[.] He did have two interviews within 15 weeks but did
             not secure employment[.] He had some problems with his
             new cell phone and went back to his old number[.]

             He is 53 years old with no GED[.] He has spent his life in
             carpentry which he can not [sic] longer do and has no
             transferable skills in the sedentary to light strength range[.]
             He has no drivers license or vehicle and has not worked in
             the last 12 years[.] His POR has opined that he can only work
             part time[.] He is in chronic pain and has many physical
             limitations[.] In spite of participating in vocational
             rehabilitation programming he has not succeeded[.] At this
             point it appears he is not able to obtain and sustain
             remunerative employment[.]

      {¶ 16} 6. Thereafter, relator was paid non-working wage loss compensation
beginning September 22, 2008. Relator continued to receive non-working wage loss
benefits through September 18, 2012 when they were terminated because relator had
received the maximum number of weeks of wage loss compensation permissible under
Ohio law.
      {¶ 17} 7. Relator filed his second application for PTD compensation on July 20,
2012. Relator submitted the February 23, 2012 letter prepared by Steven Altic, D.O.,
who opined that he was permanently and totally disabled, stating:
             I had the pleasure of reevaluating Mr. Crawford on
             02/23/2012 with chronic back pain. Recent injections by Dr.
             Lingam have not helped and he continues to see Dr. Lingam
             in pain management for medication management. In the
             past, therapy did not help. He is not really a surgical
             candidate for the conditions allowed in this claim. In my
             opinion, he is impaired by his back problems under this
             claim to the extent that he is permanently totally disabled.

      {¶ 18} 8. Relator was examined by Joseph Kearns, D.O. In his September 17,
2012 report, Dr. Kearns identified the allowed conditions in relator's claim, provided his
physical findings upon examination, opined that relator's allowed conditions had
reached maximum medical improvement ("MMI"), noted that many of relator's allowed
No. 13AP-929                                                                         9


conditions had resolved and there was no impairment attributed to them, and
concluded that relator did have a 28 percent whole person impairment, and he could
perform at a sedentary level, stating:
              He has had multiple fractures. He has had a failed attempt at
              a return to work, 10 years after his injury. He has been using
              a cane although he is not totally cane dependent. He does
              have a bit of a limp. He has limited mobility to the spine and
              limited general mobility. On this basis, I would suggest he be
              limited to sedentary work.

       {¶ 19} 9. Relator was also examined by Richard H. Clary, M.D.            In his
September 12, 2012 report, Dr. Clary identified relator's allowed psychological
condition, discussed the mental status examination, and ultimately concluded that
relator had a 10 percent impairment and that the allowed psychiatric condition would
not cause any limitations or restrictions in his ability to work.
       {¶ 20} 10. Relator's application was heard before an SHO on December 12, 2012.
The SHO relied on the medical reports of Drs. Kearns and Clary and found that he could
perform sedentary work with no additional restrictions due to the allowed psychological
condition. Thereafter, the SHO discussed the non-medical disability factors and found
that relator was not permanently and totally disabled, stating:
              The Injured Worker has at least an 11th grade education and
              can read, write, and do basic math. There has been no
              objective evidence or testing submitted to indicate that his
              intellect and literacy skills are anything less than consistent
              with his level of education. Consistent with this, he was
              found to be of normal or average intelligence by Dr. Howard
              (8/7/90) and Dr. Greer (3/5/93). An 11th grade education is
              generally sufficient to learn and perform up through semi-
              skilled work. This shows that the Injured Worker has the
              intellect and academic skills to learn and perform entry level
              unskilled and semi-skilled work. Further, the Injured
              Worker worked as an auto mechanic for at least five years, a
              skilled position according to the Dictionary of Occupational
              Titles (DOT). Therefore, it is found the Injured Worker has
              also demonstrated the ability to learn a skilled job. (Lewis v.
              Industrial Commission (1997), 10th Ct. App., No. 96APD04-
              438). To this extent, the Injured Worker's education and
              intelligence are found to be assets to retraining/re-
              employment. (Wood v. Industrial Commission (1997), 78
              O.S.3d 414).
No. 13AP-929                                                                  10


           The Injured Worker has prior skills as an auto mechanic,
           skills that would be transferable to sedentary clerical, cashier
           or receptionist type work at an automobile dealership or
           garage. Further, his skills and knowledge as a carpenter
           would be transferable to similar jobs with a carpentry type
           business. He is capable of using a home computer, which
           indicates some computer skills that would aid in training for
           clerical type work. To this extent, his prior work history is
           found to be an asset to retraining/re-employment.

           According to Ewart v. Industrial Commission (1996), 76
           O.S.3d 139, the non-existence of transferable skills is not
           critical when the issue is whether the Injured Worker can be
           trained. To the extent there may be a lack of transferable
           skills, it is found the Injured Worker is capable of unskilled
           and semi-skilled work within the physical restrictions noted
           above. This finding is based on the fact that, according to the
           DOT, semi-skilled work only requires up to six months of
           training while unskilled work only requires up to 30 days of
           training, often on the job. Further, unskilled work, by its very
           definition, does not require transferable skills. Therefore, a
           lack of transferable skills would not rule out unskilled work.
           Further, an 11th grade education is usually sufficient to learn
           and perform unskilled and semi-skilled work. At age 57 the
           Injured Worker has sufficient work life expectancy to
           complete 30 days to six months of training. Finally, as noted
           above, the Injured Worker was able to learn and perform up
           to skilled work in the past. This is supported by the fact he
           was found to be a candidate for vocational rehabilitation and
           completed a program in 2008. There are a number of
           sedentary unskilled jobs that require no more education than
           that possessed by the Injured Worker. Some examples
           include: lens inserter optical; jewelry preparer; telephone
           quotation clerk; order clerk food and beverage; paramutual
           ticket checker; surveillance system monitor; charge account
           clerk; and parking garage cashier. Some of these jobs, such
           as surveillance system monitor, parking garage cashier,
           paramutual ticket checker, and telephone quotation clerk,
           would appear to offer a sit/stand option if required. This list
           is exemplary and not exhaustive. Sedentary semi-skilled
           cashier jobs within the injured worker's educational level
           include check-cashing agency cashier and tube room cashier.

           It is further noted that although his prior application for
           permanent total disability, filed 12/2/05, indicates he
           obtained a GED, the Injured Worker testified that he has not.
           Therefore, it appears that he has had since April of 2000 to
No. 13AP-929                                                                               11


              obtain his GED to aid in a return to work but has failed to do
              so.

              Based on the above stated law, facts, reports, and analysis, it
              is found the Injured Worker is capable of sustained gainful
              employment and, therefore, permanent total disability is
              DENIED.

(Emphasis sic.)

       {¶ 21} 11. Relator filed a request for reconsideration asserting that the SHO
failed to discuss relator's extensive efforts at vocational rehabilitation and to find work.
       {¶ 22} 12. Relator's request for reconsideration was denied by order of the
commission mailed February 26, 2013.
       {¶ 23} 13. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 24} Relator contends the commission abused its discretion by failing to discuss
his efforts at vocational rehabilitation and attempts to secure employment when the
commission denied his application for PTD compensation. Because lack of efforts at
rehabilitation can be held against an injured worker who has filed an application for
PTD compensation, relator maintains that, where an injured worker has made a good-
faith effort to pursue vocational rehabilitation, the commission should consider that as
evidence the injured worker cannot perform some sustained remunerative employment.
       {¶ 25} The magistrate finds the commission did not abuse its discretion in the
present case by not finding that relator's efforts at vocational rehabilitation required
discussion or that his efforts weighed in favor of granting his application for PTD
compensation.
       {¶ 26} 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).
       {¶ 27} 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.
No. 13AP-929                                                                             12


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).
       {¶ 28} 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).
       {¶ 29} As an initial matter, the magistrate notes that relator does not challenge
the commission's reliance on the reports of Drs. Kearns and Clary to find that relator
was capable of sedentary work activity without any limitations caused by his allowed
psychological condition.    The SHO then considered the effect of the non-medical
disability factors and found that relator was capable of performing some sustained
remunerative employment. Specifically, the SHO found that relator's age of 57 years
was not a barrier to a return to work. Further, the SHO found that relator's 11th grade
education and his ability to read, write, and perform basic math was a positive factor in
terms of his ability to become re-employed. The SHO discussed relator's prior work
history, specifically noting that relator had worked in a skilled position indicated that he
had demonstrated the ability to learn a skilled job and that he had some skills which
No. 13AP-929                                                                             13


would transfer to sedentary work. Further, the SHO did note that relator was found to
be a candidate for vocational rehabilitation in 2008 and that he completed that
program; however, the SHO noted that although relator had indicated on his application
filed in 2005 that he had obtained his GED, relator indicated that he had not and the
SHO found that he had the ability to have obtained his GED to aid in a return to work.
       {¶ 30} Relator's criticism with the commission's order focuses exclusively on the
SHO's failure to discuss his efforts at rehabilitation and his efforts to actually secure
employment.     Specifically, relator argues that his vocational rehabilitation file was
closed on September 26, 2008 because despite his participation, he had not succeeded
in finding work and the case manager concluded that it appeared that he would not be
able to obtain and sustain remunerative employment.
       {¶ 31} As noted in the findings of fact, relator's vocational case manager noted as
follows in the closure report:
              He does have past legal activity which impacts what jobs he
              can do[.] [H]e does not have a valid Ohio driver's license due
              to a DUI prior to 2003 nor a vehicle[.] He is not willing to
              relocate due to local family and desires at least $23/hour in
              wages[.] He is limited to part time employment[.] * * * The
              RTW hierarchy was chosen as DJDE as he can not go back to
              the EOR, the Union Hall, and carpentry is beyond his
              physical abilities[.] An original plan was written for JSST,
              Job search, JPS, Case Management, LM, and Bus pass[.]
              Plan Amendment #1 was written to extend JSST one week
              due to a problem where COTA messed up the bus pass and
              he was not able to make JSST meeting[.] Plan Amendment
              #2 was written to extend job search activities[.] He has some
              troubles with taking the bus and with elevated blood
              pressure due to some heat exposure[.] He experienced
              increased pain levels[.] He had had problems with his phone
              but got it resolved[.] Plan Amendment #3 was written to
              continue job search to week 13[.] The week of 7/14, Mr.
              Crawford had to leave his current housing as it was sold and
              had to find a new place to live. He had difficulty with his
              phone during this time but got it fixed[.] He also had some
              problems with COTA and his bus pass which were then
              resolved[.] Plan Amendment #4 was written for extension of
              job search beyond 13 weeks per chapter 4 guidelines due to
              the extenuating circumstances of the number of barriers he
              has such as his limited physical ability, seeking part time
              work and the need to job search via the bus line[.] The plan
No. 13AP-929                                                                             14


              was written for two additional weeks of job search and JPS
              hours[.] COTA sent him the wrong bus pass and it was never
              resolved by the end of the plan[.] Changes were made to the
              resume for his new address[.] The JPS had a death in the
              family and was out til 8/25/08 but another JPS covered with
              him[.] He did have two interviews within 15 weeks but did
              not secure employment[.] He had some problems with his
              new cell phone and went back to his old number[.]

              He is 53 years old with no GED[.] He has spent his life in
              carpentry which he can not [sic] longer do and has no
              transferable skills in the sedentary to light strength range[.]
              He has no drivers license or vehicle and has not worked in
              the last 12 years[.] His POR has opined that he can only work
              part time[.] He is in chronic pain and has many physical
              limitations[.] In spite of participating in vocational
              rehabilitation programming he has not succeeded[.] At this
              point it appears he is not able to obtain and sustain
              remunerative employment[.]

(Emphasis added.)

       {¶ 32} A review of the above closure report lists several reasons why relator's
rehabilitation efforts were unsuccessful. Relator did not have a valid Ohio driver's
license due to a DUI conviction prior to 2003; he did not have a vehicle; he needed to
find a job which was on a bus line; he was not willing to relocate; and he specifically
wanted a job paying at least $23 per hour. Further, it was noted that he had many
difficulties attending meetings because of difficulties using his COTA bus pass. Further,
relator found new housing and had phone issues which again compromised his ability to
actually participate in the vocational rehabilitation. It appears that relator had two
interviews within a 15-week period which did not result in employment.
       {¶ 33} A review of the above closure report does indicate that relator participated
in vocational rehabilitation; however, to the extent that relator argues that he made a
serious effort at rehabilitation, the magistrate disagrees with relator's assertion that the
commission was required to find that he made a serious effort at vocational
rehabilitation. Further, although relator indicates that he received non-working wage
loss compensation for 200 weeks and, as such, has proven that he cannot obtain
employment, the magistrate specifically notes that none of relator's job search records
are before this court to review and, simply because the commission awarded him non-
No. 13AP-929                                                                              15


working wage loss compensation does not automatically entitle him to an award of PTD
compensation.
       {¶ 34} Relator relies heavily on this court's decision in State ex rel. Ramsey v.
Indus. Comm., 10th Dist. No. 99AP-733 (Mar. 30, 2000) ("Ramsey I"), affirmed in State
ex rel. Ramsey v. Indus. Comm., 91 Ohio St.3d 24 2001 ("Ramsey II"). Robert Ramsey
was seriously injured in 1994.        In 1996, Ramsey filed an application for PTD
compensation which was denied. Shortly thereafter, Ramsey submitted to multiple
evaluations performed by the commission's professional staff at the J. Leonard Camera
Rehabilitation Center. Ramsey participated in the rehabilitation program through
December 1997, at which time it was determined that he was an extremely poor
candidate for rehabilitation and his filed was closed.
       {¶ 35} Ramsey filed a second application for PTD compensation which was
denied. The SHO relied on the report of Dr. Turner who concluded that Ramsey was
capable of returning to his long-term career as an automobile sales person.
       {¶ 36} Ramsey filed a mandamus action here asking whether the absence of any
mention of the commission's rehabilitation report of record and the commission's order
was a violation of the principle originally set forth in State ex rel. Fultz v. Indus. Comm.,
69 Ohio St.3d 327 (1994), and whether the commission's non-medical analysis violated
Noll because the analysis did not attempt to reconcile the conclusion that Ramsey was
capable of sustained remunerative employment with the commission's rehabilitation
reports of record.
       {¶ 37} This court's magistrate found that the commission's order did not violate
the principle of Fultz and that the order complied with Noll. Specifically, the magistrate
noted that, 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.
Because the commission's order did not necessarily enumerate the evidence considered,
the magistrate found that there was no violation of Fultz.
       {¶ 38} The magistrate also rejected Ramsey's second argument finding that the
commission was not required to explain why it chose not to rely on the rehabilitation
No. 13AP-929                                                                    16


reports. The magistrate also indicated that the commission did not have a duty to
address rehabilitation efforts.
       {¶ 39} In rejecting the decision of its magistrate, this court stated:
              The staff hearing officer who heard Mr. Ramsey's case did
              not appear to give any weight to Mr. Ramsey's efforts at
              rehabilitation. Instead, the staff hearing officer apparently
              relied solely upon “the objective medical findings of an
              unbiased examiner.”

              We do not believe that reeducation and retraining efforts can
              only be used as a means to punish injured workers on those
              occasions when a hearing officer feels that the injured
              worker has failed to exercise his or her best efforts at
              rehabilitation. The situation where an injured workers has
              made serious efforts at rehabilitation but has not succeeded
              should be considered as a factor in favor of granting PTD
              compensation, especially where, as here, the Bureau of
              Workers' Compensation's own reports demonstrated a
              failure to be rehabilitated despite the injured worker's best
              efforts. Since the record before us indicates that the staff
              hearing officer did not give appropriate weight to Mr.
              Ramsey's unsuccessful rehabilitation efforts and the reports
              from the J. Leonard Camera Rehabilitation Center, a writ of
              mandamus shall issue.

              The order from the staff hearing officer reflects a related
              flaw, the failure to consider vocational information available
              in the file. We still believe that the better course of action
              would be for the commission to list all the reports
              considered, not just the reports relied upon. Such listing of
              reports would enable the courts to be assured that all the
              reports were considered and would avoid the temptation a
              hearing officer might feel to pick out only the reports of
              commission specialists for review. Such a temptation would
              be understandable, given the sheer volume of applications to
              be considered. However, injured workers whose livelihood
              depends upon the findings of the commission deserve a
              thorough review, not just a quick review.

              For us, State ex rel. Fultz v. Indus. Comm. (1994), 69 Ohio
              St.3d 327, 631 N.E.2d 1057, was a step in the right direction.
              Where reports in the file could be determinative, the
              commission must reflect a review of those reports in the
              order granting or denying PTD compensation. The order
              denying PTD compensation for Mr. Ramsey does not reflect
No. 13AP-929                                                                       17


                consideration of the vocational reports, but seems to rely
                almost completely on “the objective medical findings of an
                unbiased examiner,” as noted above. Thus, we find that
                neither the spirit nor the letter of Fultz was honored here.

Ramsey I, at ¶ 60.

       {¶ 40} This court discussed its decision in Ramsey 1 again in State ex rel.
Scaggs v. Indus. Comm., 10th Dist. No. 02AP-799, 2003-Ohio-1786. This court stated:
                [R]elator cites State ex rel. Ramsey v. Indus. Comm.
                (Mar. 30, 2000), Franklin App. No. 99AP-733; and State ex
                rel. Burns v. Indus. Comm., Franklin App. No. 01AP-1036,
                2002-Ohio-2804, in arguing that, where reports in the file
                could be determinative, the commission's order granting or
                denying permanent total disability compensation must
                reflect a review of those reports. However, relator's argument
                is valid only when the commission provides a list of all
                evidence considered, and then omits reference to a report
                that could have been determinative of the issue. In State ex
                rel. Lovell v. Indus. Comm. (1996), 74 Ohio St.3d 250, 252-
                253, 658 N.E.2d 284, the Supreme Court of Ohio held that
                the commission has no obligation to identify all of the
                evidence considered, and when the commission does not
                provide such a list, there is a presumption that the
                commission considered all of the evidence before it. That
                presumption is applicable here, because, as noted by the
                magistrate, the commission did not list all of the evidence
                considered.

                Furthermore, because the commission is a vocational
                evaluator with considerable expertise, it may form its own
                independent opinion without regard to the opinions of
                vocational experts, e.g., State ex rel. Jackson v. Indus.
                Comm. (1997), 79 Ohio St.3d 261. Therefore, the commission
                did not need to address the report of Mr. Kilcher in reaching
                its decision.

Id. at ¶ 7-8.

       {¶ 41} More recently, this court considered the applicability of its holding in
Ramsey 1 again. In State ex rel. Brahler v. Kent State Univ., 10th Dist. No. 13AP-143,
2013-Ohio-5299, this court stated:
                Claimant concedes that the commission is the exclusive
                evaluator of disability and is not bound to accept vocational
No. 13AP-929                                                                            18


                evidence, but argues that here the commission itself made
                rehabilitation participation a primary concern in its previous
                denial order, so the commission should be required to
                address her subsequent rehabilitation.

                The magistrate dedicated five pages of her decision
                addressing the commission's failure to consider her attempts
                at vocational rehabilitation in its second order. In rejecting
                claimant's argument, the magistrate cited State ex rel.
                Guthrie v. Indus. Comm., 133 Ohio St.3d 244, 2012-Ohio-
                4637, in which the Supreme Court of Ohio held that the fact
                that the Staff Hearing Officer (“SHO”) did not view the
                worker's rehabilitation efforts favorably does not affect the
                validity of the order. The court in Guthrie reasoned that the
                commission is exclusively responsible for interpreting the
                vocational evidence, the rehabilitation division made both
                favorable and unfavorable comments about the worker's
                participation, and the commission was permitted to accept
                the unfavorable comments over the favorable ones. In the
                present case, the magistrate found that, similar to Guthrie,
                the rehabilitation division made both positive and negative
                comments concerning claimant's rehabilitation efforts, and
                the commission could accept the negative comments as the
                ultimate interpretation of vocational evidence. The
                magistrate also noted that relator did not attempt vocational
                rehabilitation from the time she stopped working in 2002
                until her first application for PTD was denied in 2010, and
                then she only participated in vocational rehabilitation for
                three months. We concur with the magistrate's
                determinations. Claimant presents no authority for the
                proposition that the commission is required to address
                rehabilitation efforts where the commission made
                rehabilitation participation a concern in a prior denial order.
                Even under these circumstances, it remains that the
                commission is the exclusive evaluator of vocational evidence
                and may believe or disbelieve the vocation evidence
                submitted.

Id. at ¶ 3-4.

       {¶ 42} As above noted, this court's holding in Ramsey I has been limited.
Further, as noted in the findings of fact, although relator contends that he made a
serious effort at rehabilitation and that the vocational rehabilitation closure report
indicates a failure to be rehabilitated despite his best efforts, the magistrate finds that
relator's assertion is not necessarily supported by the report. Relator's participation was
No. 13AP-929                                                                            19


inconsistent due to several factors, including difficulty using public transportation, the
fact that he moved, and difficulties with his cell phone. The magistrate finds that relator
simply has not demonstrated that the commission abused its discretion in this case.
      {¶ 43} As in State ex rel. Guthrie v. Indus. Comm., 133 Ohio St.3d 244, 2012-
Ohio-4637, the vocational evidence here has both negative and positive aspects and the
commission could accept the negative aspects as the ultimate interpretation of the
vocational evidence. The closure report simply is not as favorable as relator asserts.
Further, there is no authority for the proposition that the commission is required to
discuss rehabilitation efforts where the commission made rehabilitation efforts a
concern in a prior order denying PTD compensation. There are several reasons why
relator's vocational rehabilitation was unsuccessful, this court cannot review his job
search efforts, and relator did not attempt any vocational rehabilitation until fives years
after he last worked and only after his first application for PTD compensation was
denied.
       {¶ 44} 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).
