[Cite as State ex rel. Smoot v. KBO Inc., 2014-Ohio-2543.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

[State ex rel.] Victor Smoot,                          :

                 Relator,                              :

v.                                                     :                  No. 13AP-903

[KBO], Inc. and Industrial Commission                   :            (REGULAR CALENDAR)
of Ohio,
             Respondents.                              :

                                                       :


                                             D E C I S I O N

                                      Rendered on June 12, 2014


                 Michael J. Muldoon, for relator.

                 Graydon Head & Ritchey LLP, and Everett L. Greene, for
                 respondent KBO, Inc.

                 Michael DeWine, Attorney General, and Colleen C. Erdman,
                 for respondent Industrial Commission of Ohio.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
TYACK, J.

        {¶ 1} Relator, Victor Smoot, filed this action in mandamus seeking a writ to
compel the Industrial Commission of Ohio ("commission") to grant him permanent total
disability ("PTD") compensation.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
the pertinent evidence and filed briefs.               The magistrate then issued a magistrate's
decision, appended hereto, which contains detailed findings of fact and conclusions of
No. 13AP-903                                                                            2


law. The magistrate's decision includes a recommendation that we deny the request for a
writ.
        {¶ 3} Counsel for Smoot has filed objections to the magistrate's decision. Counsel
for the commission has filed a memorandum in response. Counsel for KBO, Inc., Smoot's
former employer, a self-insured employer, has also filed a memorandum in response. The
case is now before the court for a full, independent review.
        {¶ 4} As noted in the magistrate's decision, Smoot has suffered three sets of
injuries. One set centers around injury to his neck. One set involves his neck and back.
The third set involves his right wrist and thumb. Smoot's treating physician sees Smoot
as incapable of sustained remunerative employment. A physician who examined Smoot
at the request of KBO, Inc. reported otherwise. The staff hearing officer ("SHO") who
reviewed Smoot's application for PTD compensation found the employer's expert more
credible.
        {¶ 5} The SHO reviewed the nonmedical or so-called Stephenson factors and
noted Smoot is over 60 years of age and that age was a negative factor without being
work-prohibitive. State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987).
The SHO's complete analysis is set forth in the magistrate's decision.
        {¶ 6} We do agree with our magistrate's analysis of the SHO's order.
        {¶ 7} We, therefore, overrule the objections to the magistrate's decision. We
adopt the findings of fact and conclusions of law contained in the magistrate's decision
and deny the request for a writ of mandamus.
                                                        Objections overruled; writ denied.

                             BROWN and KLATT, JJ., concur.
No. 13AP-903                                                                            3



                                    APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT

[State ex rel.] Victor Smoot,                :

              Relator,                       :

v.                                           :                   No. 13AP-903

[KBO], Inc. and Industrial Commission         :               (REGULAR CALENDAR)
of Ohio,
             Respondents.                    :

                                             :




                         MAGISTRATE'S DECISION

                                 Rendered on March 18, 2014



              Michael J. Muldoon, for relator.

              Graydon Head & Ritchey LLP, and Everett L. Greene, for
              respondent KBO, Inc.

              Michael DeWine, Attorney General, and Colleen C. Erdman,
              for respondent Industrial Commission of Ohio.


                                      IN MANDAMUS

       {¶ 8} Relator, Victor Smoot, 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 relator's application for permanent total
disability ("PTD") compensation and ordering the commission to find that he is entitled to
that compensation.
No. 13AP-903                                                                              4


Findings of Fact:

       {¶ 9} 1. Relator has sustained three work-related injuries during the course of his
employment with respondent KBO, Inc. ("employer") and his workers' compensation
claims have been allowed for the following conditions:
              Claim # 03-887701 – Acute cervical sprain; scalp contusion.

              Claim # 04-823413 – Cervical sprain; herniated disc at the
              L5-S1 level of the lumbar spine.

              Claim # 06-854429 – Right wrist sprain/strain; right thumb
              sprain/strain; complete rupture of scapholunate ligament.

       {¶ 10} 2. On May 15, 2013, relator filed his application for PTD compensation.
       {¶ 11} 3. In support of his application for PTD compensation, relator filed the May
10, 2013 report of his treating physician David M. Grunstein, D.C. In that report, Dr.
Grunstein noted relator's present complaints, identified the allowed conditions in his
claims, provided his physical findings upon examination, concluded that relator had a 60
percent whole person impairment and that he was permanently and totally disabled.
       {¶ 12} 4. Prior to authoring the May 10, 2013 report, Dr. Grunstein had completed
a functional capacities evaluation dated April 27, 2013. On that form, Dr. Grunstein
indicated that, in an 8-hour workday, relator could stand/walk for 2 to 3 hours, stand and
sit at one time each for 10 to 20 minutes; in an 8-hour workday, relator could sit for 3
hours, and sit at one time for 20 to 30 minutes; could occasionally lift/carry up to 20
pounds; his left hand could be used for simple grasping and fine manipulation, but his
right could not; relator could not use his feet for repetitive movement as in operating foot
controls; and relator could never work above shoulder level, bend/twist/turn at his waist,
squat, crawl, climb, or push/pull. Dr. Grunstein also noted that relator takes Vicodin for
his pain and that this limited his cognitive function.
       {¶ 13} 5. Relator was examined by Paul T. Hogya, M.D. In his July 9, 2013 report,
Dr. Hogya identified the allowed conditions in relator's claims, identified the medical
records which he reviewed, noted relator's current symptoms, provided his physical
findings upon examination, and concluded that relator's allowed physical conditions had
reached maximum medical improvement ("MMI"), that he would be capable of returning
No. 13AP-903                                                                              5


to some form of sustained remunerative employment but would require some modest
permanent restrictions, that he was capable of function in a light-duty capacity
concerning his back, but that his right hand and wrist would limit him to sedentary work.
He also noted that relator should avoid the use of vibrating and hand tools such as
hammers and wrenches and that he was capable of using his right hand on a frequent
basis for operating the telephone, keyboard and/or mouse.
       {¶ 14} 6. Relator was also examined by James T. Lutz, M.D. In his July 29, 2013
report, Dr. Lutz identified the allowed conditions in relator's claims, provided the history
of his present illness, provided his physical findings upon examination, and concluded
that claimant had a 26 percent whole person impairment, and was capable of performing
sedentary work.
       {¶ 15} 7. Relator submitted the August 25, 2013 vocational report of Molly S.
Williams who determined that relator was permanently and totally disabled, stating:
              I reviewed and formally adopt the factual findings as
              previously stated above. However, when all of the disability
              factors are correctly identified, stated, and considered: an
              individual unable to perform his customary past relevant
              work as a Truck Driver, both as he performed it and as it is
              normally performed within the national economy; an
              individual of advanced age (age fifty-five or over); an
              individual with a high school education completed in the
              remote past (1972); an individual with no transferable
              skill(s); and an individual not expected to make a vocational
              adjustment to other work based upon the allowed physical
              conditions, as assessed by The Industrial Commission's
              Specialist, James T. Lutz, M.D., it is obvious that the
              claimant is permanently and totally disabled.

       {¶ 16} 8. Relator's motion was heard before a staff hearing officer ("SHO") on
October 9, 2013. The SHO first explained why the reports from Dr. Grunstein were not
found to be persuasive, stating:
              In support of his application, Mr. Smoot has submitted two
              reports from Dr. Grunstein dated 04/27/2013 and
              05/10/2013 respectively. The Staff Hearing Officer has
              reviewed both reports and finds them to be problematic.

              In his report dated 04/27/2013, Dr. Grunstein opined that
              the Injured Worker's functional capacities permit him in an
No. 13AP-903                                                                                 6


              eight hour work day to stand and walk two to three hours,
              stand at one time for ten to 20 minutes and walk at one time
              for ten to 20 minutes. Dr. Grunstein further opined that in
              an eight hour work day the Injured Worker could sit for
              three hours and could sit at one time for 20 to 30 minutes.
              Dr. Grunstein further opined that the Injured Worker could
              lift and carry up to 20 pounds occasionally and that he could
              use his left hand for simple grasping and fine manipulation.
              Dr. Grunstein further opined that the Injured Worker could
              not use his right hand for either simple grasping or fine
              manipulation and that he could not use either foot for
              repetitive movement of foot controls.

              In his report dated 05/10/2013, the Staff Hearing Officer
              notes that Dr. Grunstein failed to acknowledge that the
              Injured Worker's 2006 claim is also allowed for a complete
              rupture of the scapholunate ligament. Recourse to the body
              of the report itself does not find any reference to this allowed
              condition or to any surgery to treat it.

              The Staff Hearing Officer finds that Dr. Grunstein's
              statement of the Injured Worker's remaining functional
              capacities is not consistent with his 05/10/2000 [sic]
              opinion that the Injured Worker is incapable of performing
              any sustained remunerative employment due to restrictions
              arising from the allowed conditions.

       {¶ 17} Thereafter, the SHO discussed the reports of Drs. Lutz and Hogya,
specifically noting their limitations and found that he was capable of working as follows:
              The Injured Worker was examined 07/29/2013 at the
              request of the Industrial Commission of Ohio by Dr.
              James T. Lutz.

              On physical examination, Dr. Lutz found the Injured Worker
              to be a well-developed male who appeared in no acute
              distress. Dr. Lutz noted that the Injured Worker ambulated
              with a mildly stiffened gait. Dr. Lutz found the Injured
              Worker's deep tendon reflexes of the lower extremities to be
              symmetrical with gross sensation appearing to be intact. Mr.
              Smoot was able to heel and toe walk without difficulty, but
              could only perform approximately a one-third normal squat.

              Dr. Lutz also reviewed the reports of Dr. Grunstein dated
              04/27/2013 and 05/10/2013. In the opinion of Dr. Lutz
              these reports are conflicting in that one report states Mr.
No. 13AP-903                                                               7


          Smoot to be permanently and totally disabled while the other
          report "generally" places him in the light work capabilities
          category.

          In the opinion of Dr. Lutz, the allowed conditions in the
          claims have reached maximum medical improvement with a
          resulting 26% whole person impairment. Dr. Lutz also
          opined in his narrative report and on an attached Physical
          Strength Rating form that the Injured Worker is physically
          capable of performing sedentary work.

          Sedentary work is defined as meaning the ability to exert up
          to ten pounds occasionally and/or a negligible amount of
          force frequently 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.

          The Injured Worker was also examined at the request of the
          Self-Insuring Employer in this matter by Dr. Paul T. Hogya
          on 06/19/2013.

          In his 07/09/2013 report, Dr. Hogya opined that the allowed
          conditions in the claim have reached maximum medical
          improvement. In the opinion of Dr. Hogya, based upon the
          herniated disc at L5-S1, the Injured Worker is capable of
          working sustained remunerative employment with
          restrictions: "That means exerting up to 20 pounds of force
          occasionally and/or up to 10 pounds of force frequently
          and/or a negligible amount of force constantly in the course
          of lifting, carrying, pushing or pulling various objects.
          Sitting, standing and walking may be up to one hour at a
          time with an opportunity to change positions."

          In the opinion of Dr. Hogya, the Injured Worker may drive
          automobiles and small pick-up trucks with automatic
          transmission for up to one hour at a time. In the opinion of
          Dr. Hogya, the Injured Worker is capable of occasionally
          squatting and kneeling as necessary. In the further opinion
          of Dr. Hogya, the Injured Worker may climb stairs and
          ramps on an occasional basis, such as entering and exiting
          buildings. With respect to the Injured Worker's right hand
          and wrist, in the opinion of Dr. Hogya, the Injured Worker
          should stay generally within the sedentary industrial demand
          capacity. Dr. Hogya further opined that the Injured Worker
No. 13AP-903                                                                          8


               should avoid the use of vibrating tools and hand tools such as
               hammers and wrenches. Dr. Hogya opined that the Injured
               Worker is capable of using his right hand on a frequent basis
               for operating a telephone, a keyboard or a computer mouse.

               After having reviewed the medical evidence in the file, the
               Staff Hearing Officer is persuaded and finds based upon the
               aforementioned reports of Dr. Hogya and Dr. Lutz that the
               allowed conditions in the claim have reached maximum
               medical improvement and are permanent.

               It is the further finding of the Staff Hearing Officer based
               upon the reports of Dr. Hogya and Dr. Lutz that the Injured
               Worker is not physically capable of returning to and
               performing his former position of employment as a truck
               driver due to the allowed conditions in his combined three
               claims.

               It is the further finding of the Staff Hearing Officer based
               upon the reports of Dr. Lutz (07/29/2013) and Dr. Hogya
               (07/09/2013) that the Injured Worker is physically capable
               of returning to sustained remunerative employment.

               Having concluded that the Injured Worker can return to and
               perform work within the restrictions identified by Dr. Lutz
               and by Dr. Hogya, the Staff Hearing Officer now turns to a
               discussion of the Injured Worker's vocational factors.

(Emphasis sic.)

       {¶ 18} Finding that relator was physically capable of returning to some sustained
remunerative employment within the restrictions noted by Drs. Lutz and Hogya, the SHO
discussed the non-medical vocational factors. The SHO found relator's vocational factors
to be positive, stating:
               The Injured Worker is presently 60 years old. The Injured
               Worker last worked in any capacity when he was
               approximately 58 years old.

               The Staff Hearing Officer finds that the Injured Worker is
               approximately five to six years away from the typical age of
               retirement. At the time the Injured Worker was last
               employed, he was approximately seven to eight years away
               from the usual age of retirement.
No. 13AP-903                                                                 9


          The Staff Hearing Officer finds that the Injured Worker's
          present age may be somewhat of a barrier for re-entering the
          work force or for undertaking further education/training.
          The Staff Hearing Officer further finds that the Injured
          Worker's present age would be expected to only slightly
          interfere with his ability to adapt to a new job or to a new
          work environment. The Staff Hearing Officer finds, however,
          that individuals of the Injured Worker's present age have
          sufficient time before reaching the regular age of retirement
          to acquire new job skills, at least through informal means
          such as short-term or on-the-job training that could enhance
          their potential for re-employment. The Staff Hearing Officer
          therefore finds and concludes that the Injured Worker's
          present age is only a slight impediment to his ability to
          return to work as identified by Dr. Lutz and by Dr. Hogya.

          The Staff Hearing Officer further finds that the Injured
          Worker has the self-reported ability to read, write and
          perform basic math. The Staff Hearing Officer finds that
          these basic and fundamental intellectual assets are positive
          factors in the Injured Worker's ability to undertake further
          retraining, whether on-the-job or of a more formal and
          structured nature, that would permit a return to
          employment. The Staff Hearing Officer further finds that the
          Injured Worker's physical ability, as identified by Dr. Lutz in
          his report dated 07/09/2013 to use his right hand on a
          frequent basis for operating a telephone, a computer
          keyboard or a computer mouse is an additional positive
          factor in the Injured Worker's ability to undertake further
          retraining or to engage in employment within the restrictions
          identified by Drs. Lutz and Hogya.

          The Staff Hearing Officer further finds that the Injured
          Worker's prior employment experience as a truck driver is a
          mixed vocational factor with respect to his ability to return to
          work within the restrictions identified by Dr. Hogya and by
          Dr. Lutz. The Staff Hearing Officer finds that the Injured
          Worker's work experience driving a truck is not a positive
          factor in evaluating his employment potential. The Staff
          Hearing Officer finds, however, that the Injured Worker's job
          experience consisting of completing log books and trip
          records and vehicle inspection reports is a positive vocational
          factor with regard to his ability to undertake further training,
          whether of an informal nature or a more formalized nature.
          The Staff Hearing Officer further finds that the Injured
          Worker's ability to complete log books and trip records and
No. 13AP-903                                                                           10


              inspection reports is a positive vocational asset with respect
              to returning to some form of sedentary work, such as clerical
              or basic computer work or work as a sit-down guard or
              greeter at an office building or warehouse.

              ***

              The Staff Hearing Officer further finds that the Injured
              Worker has demonstrated a long, and consistent work
              history. The Staff Hearing Officer finds the Injured Worker's
              past commitment to steady employment to be a positive
              vocational factor.

              Based upon the foregoing vocational factors, the Staff
              Hearing Officer is persuaded and finds that the Injured
              Worker retains some capacity to engage in sustained
              remunerative employment within the physical restrictions
              identified by Drs. Lutz and Hogya. The Staff Hearing Officer
              finds that the Injured Worker has the basic intellectual and
              physical skills necessary to perform some entry-level
              sedentary work, if so motivated, such as a parking lot
              attendant, a monitoring type of security guard or self-service
              cashier, a telephone solicitor/salesperson or a greeter at a
              store that could accommodate his walking and sitting
              restrictions.

       {¶ 19} The SHO did discuss relator's decision to forgo any vocational or additional
training, stating:
              The Staff Hearing Officer further finds that the Injured
              Worker's decision to forgo any additional retraining or
              vocational rehabilitation is a voluntary choice unrelated to
              his industrial injury and thus a negative factor with regard to
              his permanent total disability application.

              ***

              As noted by the Ohio Supreme Court on a number of
              occasions, permanent total disability compensation is
              compensation of last resort, payable only in the event of a
              demonstration of a loss of the entirety of the ability to engage
              in sustained remunerative employment; and, on a
              demonstration that the Injured Worker has made reasonable
              attempts to prepare himself for such work. In this case,
              neither such demonstration has been made by the Injured
              Worker.
No. 13AP-903                                                                               11



       {¶ 20} 9. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 21} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 22} 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).
       {¶ 23} 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).
       {¶ 24} 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
No. 13AP-903                                                                                 12


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).
       {¶ 25} Relator contends that the SHO created a "legal fiction" to find that he was
capable of employment and that it is clear that the jobs the SHO identified (parking lot
attendant, security guard, telephone solicitor, greeter) cannot be done within his medical
restrictions and considering his disability factors. Relator contends that Ms. Williams
properly considered the non-medical disability factors and found that he was not capable
of performing some sustained remunerative employment.
       {¶ 26} Relator cites several cases in support of his argument. Those cases include
State ex rel. Hutt v. Frick-Gallagher Mfg. Co., 11 Ohio St.3d 184 (1984), State ex rel.
Haddix v. Indus. Comm., 70 Ohio St.3d 59 (1994), State ex rel. Pierce v. Indus. Comm.,
77 Ohio St.3d 275 (1997), State ex rel. Bruner v. Indus. Comm., 77 Ohio St.3d 243 (1997),
and State ex rel. Mann v. Indus. Comm., 80 Ohio St.3d 656 (1998). The magistrate does
not find relator's argument persuasive.
       {¶ 27} With the exception of the Hutt case, writs were granted in the above cases
pursuant to Noll. In Hutt, decided prior to Noll, the Supreme Court of Ohio determined
that the facts of that case were strikingly similar to the facts found in State ex rel. Mitchell
v. Robbins & Myers, Inc., 6 Ohio St.3d 481 (1983). The court explained:
              In the instant case, as in that case, the reasoning forwarded
              by the commission in its order denying the claim and the
              reasoning now advanced upon appeal are markedly different.
              The order in the instant case simply stated that "the claimant
              is not permanently and totally disabled." The commission
              now argues that appellant is not permanently and totally
              disabled as the result of the allowed conditions, even though
              he may well be permanently and totally disabled as the result
              of previously existing conditions. "[T]his court has
              recognized that '* * * there must be a causal connection
              between an injury arising out of and in the course of a
              worker's employment and his harm or disability * * *[,]'
              Gilbert v. Midland-Ross (1981), 67 Ohio St.2d 267, 270 [423
              N.E.2d 847, 21 O.O.3d 168] * * * " ( id. at 482, 453 N.E.2d
              721). The commission's order, however, does not state the
              reason for denying compensation was that appellant's
              disability was not causally related to his injury. Instead it
              states that appellant does not suffer from permanent total
              disability. Following the rule established in Mitchell, this
No. 13AP-903                                                                      13


                unqualified conclusion will not be embellished but rather
                will be construed "in a single fashion." Id. at 483, 453 N.E.2d
                721.

                Mitchell also requires that the commission "specifically state
                which evidence and only that evidence which has been relied
                upon to reach their conclusion, * * *." Id. at 483-484, 453
                N.E.2d 721. Inasmuch as the commission mentioned four
                specific medical reports, it may be assumed that this
                requirement has been met. However, as noted in the
                statement of the facts, none of those four reports supported
                the conclusion that appellant was not permanently and
                totally disabled.

Hutt, at 185.

       {¶ 28} In Haddix, the court found a Noll violation as follows:

                The present order lists three nonmedical factors-age,
                education and work history. The commission was silent on
                the first, giving no clue as to whether claimant's age was
                viewed favorably or unfavorably. Its observation that
                claimant was sixty years old appears to be no more than that-
                a random factual observation with no significance attached
                one way or the other.

                Education, on the other hand, was specifically deemed an
                obstacle to reemployment, so it does not support the
                transferable-skills theory. This leaves the commission's
                conclusion resting solely on claimant's work history.

                The commission determined that claimant's prior work as a
                gas station attendant and press operator provided him with
                skills transferable to sedentary employment. The
                commission's order, however, does not identify what those
                skills are. Such elaboration is critical in this case, since
                common sense suggests that neither prior work is, in and of
                itself, sedentary.

                The commission responds that it "inferred" from claimant's
                gas station job that claimant "perform[ed] a variety of duties,
                which would include such things as pumping gas, washing
                windows, dealing with customers at retail, making change,
                filling out credit card slips, operating a cash register, and
                light custodial work." Again, however, none of this
                explanation was stated in the order. Moreover, pumping gas,
No. 13AP-903                                                                          14


              washing windows and light custodial duties do not suggest
              sedentary employment.

              The commission's order, contrary to Noll, does not,
              therefore, adequately explain how these vocationally neutral
              and/or unfavorable factors combine to produce a claimant
              who is able to work. Equally important, we are not convinced
              that such an explanation is possible. Claimant is now in his
              sixties. He did not attend even high school and has worked
              as a gas station attendant and press operator. We thus find
              relief consistent with Gay to be appropriate.

Id. at 61.

       {¶ 29} In Bruner, the commission noted that the claimant was 59 years old, had
obtained a GED, and had a work history consisting of maintenance work and window
washer. Despite his work experience, the commission concluded that the claimant had
sufficient vocational skills to obtain or be trained for sedentary or light employment,
particularly relying on the claimant's attainment of a GED and the fact that there were
positions available in the labor market at the unskilled, sedentary, and light level. The
court found a Noll violation, stating:
              The commission's order violates Noll because it does not
              explain how claimant's nonmedical factors combine to make
              him work-amenable. The commission's mere acknowledge-
              ment of claimant's age and education is not enough. * * *

              The commission's discussion of claimant's work history is
              also inadequate. With increasing, and disturbing, frequency
              we are finding that no matter what claimant's employment
              background is, the commission finds skills-almost always
              unidentified-that are allegedly transferable to sedentary
              work. In some cases, depending on the claimant's
              background, these skills are self-evident. In many cases, they
              are not.

              In State ex rel. Haddix v. Indus. Comm. (1994), 70 Ohio
              St.3d 59, 61, 636 N.E.2d 323, 324, we held:

              "The commission determined that claimant's prior work as a
              gas station attendant and press operator provided him with
              skills transferable to sedentary employment. The
              commission's order, however, does not identify what those
No. 13AP-903                                                                              15


                 skills are. Such elaboration is critical in this case, since
                 common sense suggests that neither prior work is, in and of
                 itself, sedentary."

                 The present claimant was an ironworker-a position that is
                 neither sedentary nor light duty. Again, however, the
                 commission found skills transferable to light work, without
                 specifying what those skills were. The reference to
                 supervisory skills, without more, is not enough in this case,
                 given claimant's tenure as a working, as opposed to purely
                 administrative, supervisor.

Id. at 277-78.

          {¶ 30} In Mann, the court found a Noll violation, stating:

                 The commission, in finding claimant capable of work, relies
                 overwhelmingly on claimant's past employment. Its
                 discussion is flawed because, despite excessive verbiage, it is
                 no more than a recitation of claimant's nonmedical profile.
                 The commission lists claimant's work history three times but
                 never explains how those nonsedentary jobs equip claimant
                 for a sedentary position. Moreover, the commission's
                 reference to "sedentary low stress positions in the food
                 services industry" merits further explanation. While the
                 commission is generally not required to enumerate the jobs
                 of which it believes claimant to be capable, its assertion that
                 claimant could do low stress sedentary work in an industry
                 that is traditionally considered neither low stress nor
                 sedentary requires further exploration.

Id. at 659.

          {¶ 31} In the above cases, the court found that the commission's orders failed to
explain how, given their restrictions and non-medical disability factors, the claimants
could perform some sustained remunerative employment. Specifically, in each case the
commission had indicated that the claimants' work histories had provided them with
"transferable skills"; however, the commission had failed to identify any transferable
skills.
          {¶ 32} Contrary to relator's assertions, the magistrate finds that the commission's
order denying his application for PTD compensation does not suffer from the same
deficiencies as the orders in the above cases did. The commission first determined that
No. 13AP-903                                                                              16


relator's age, 60 years old, was only a slight impediment to his ability to return to work
within the restrictions of Drs. Lutz and Hogya. The SHO explained that his present age
would be expected to slightly interfere with his ability to adapt to a new job or new work
environment, but that he had sufficient time before reaching the typical retirement age to
acquire new job skills, at least through informal means such as short-term or on-the-job
training to enhance his potential for re-employment.
       {¶ 33} The SHO next noted that relator self-reported that he could read, write, and
perform basic math and concluded that these were basic fundamental, intellectual assets
to his ability to undertake further retraining, whether on the job or in a more formal and
structured nature. The SHO further noted that relator was able to use his right hand on a
frequent basis for operating a telephone, a computer keyboard or a computer mouse, and
that this was an additional positive factor in his ability to undertake further retraining or
to engage in employment within his restrictions.
       {¶ 34} The SHO also found that relator's prior work experience was a positive
factor noting that relator completed log books, trip records, and vehicle inspections. This
was found to be a positive vocational aspect with regard to returning to some form of
sedentary work, such as clerical or basic computer work, or work as a sit-down guard or
greeter at an office building or warehouse. Thereafter, the SHO determined that relator
had the basic intellectual and physical skills necessary to perform work as a parking lot
attendant, monitoring type of security guard, or self-service cashier, or telephone
solicitor/sales person, or as a greeter at a store that could accommodate his walking and
sitting restrictions.
       {¶ 35} Unlike the relator cites, here the SHO identified, discussed, and explained
why the non-medical disability factors were found to be positive and permitted relator to
return to some form of sustained remunerative employment. The SHO also identified
skills which would transfer to sedentary work. The magistrate does not find this order to
be deficient.
       {¶ 36} Relator also argues that the specific jobs the SHO identified are clearly not
sedentary. The SHO listed the following jobs: parking lot attendant, monitoring type of
security guard, self-service cashier, and telephone solicitor/salesperson or a greeter at a
store that could accommodate his walking and sitting restrictions.
No. 13AP-903                                                                             17


       {¶ 37} Contrary to relator's assertions, it is not obvious that these jobs are not
sedentary. Relator's argument does not show an abuse of discretion on the part of the
commission.
       {¶ 38} Furthermore, the SHO noted that relator had decided to forgo any
additional retraining or vocational rehabilitation and considered this to be a negative
factor with regard to his application for PTD noting that such compensation was payable
only where a claimant has entirely lost the ability to engage in sustained remunerative
employment and upon demonstrating that the claimant had made reasonable attempts to
prepare himself for such work. The commission and courts can demand accountability of
claimants who, despite time and medical ability to do so, never try to further their
education or learn new skills. State ex rel. Bowling v. Natl. Can Corp., 77 Ohio St.3d 148
(1996). The commission may hold a PTD claimant accountable for their failure to take
advantage of opportunities for rehabilitation or retraining. State ex rel. Wilson v. Indus.
Comm., 80 Ohio St.3d 250 (1997). This provides an additional explanation for why
relator's application for PTD compensation was denied.
       {¶ 39} Finding that relator has not demonstrated that the commission abused its
discretion in denying his application for PTD compensation, it is this magistrate's decision
that 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).
