[Cite as State ex rel. Shetler v. Indus. Comm., 2017-Ohio-1063.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Dan Shetler,                          :

                 Relator,                               :

v.                                                      :             No. 16AP-119

Industrial Commission of Ohio                           :          (REGULAR CALENDAR)
and
John Detweiler,                                         :

                 Respondents.                           :



                                            D E C I S I O N

                                      Rendered on March 23, 2017


                 On brief: Law Office of Stanley R. Jurus, and Frank A.
                 Vitale, for relator.

                 On brief: Michael DeWine, Attorney General, and
                 Amanda B. Brown, for respondent Industrial Commission of
                 Ohio.

                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.
        {¶ 1} Relator Dan Shetler initiated this original action requesting that this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order denying his application for permanent total disability
("PTD") compensation and to enter an order finding that he is entitled to that
compensation.
        {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
No. 16AP-119                                                                             2


appended decision, including findings of fact and conclusions of law. The magistrate
determined that Shetler has not demonstrated that the commission abused its discretion
in denying his application for PTD compensation. Thus, the magistrate recommends this
court deny Shetler's request for a writ of mandamus.
       {¶ 3} Shetler has filed an objection to the magistrate's decision. Shetler asserts
the magistrate erred in finding some evidence in the record supporting the commission's
factual conclusion that he has not made any effort since his injury to return to the
workforce. According to Shetler, the commission abused its discretion in denying his
application for PTD compensation based on this factual conclusion because it was not
supported by some evidence in the record. The argument Shetler presents in his objection
is the same argument that was presented to and rejected by the magistrate. We agree with
the magistrate's rejection of this argument.
       {¶ 4} In support of his argument, Shetler cites his testimony before the
commission indicating that for two days in approximately 2009 he operated a tractor and
brush clearing machine on his brother's farm. After operating the tractor, Shetler had to
be lifted from it by others because he could not get off on his own accord. While this
testimony indicates Shetler attempted to perform non-sedentary labor for his brother
after his injury, this attempt occurred when Shetler was medically limited to sedentary
employment. Shetler does not assert that he ever attempted, after his injury in 1980, to
return to the workforce in a capacity within his physical ability. Considering Shetler's
concession that his only attempt to return to work was his failed two-day effort to perform
labor beyond his physical ability on his brother's farm, it was reasonable for the
commission to find that Shetler had not made any legitimate effort to re-enter the
workforce. Therefore, we conclude that the magistrate correctly determined that the
commission's challenged factual finding was supported by some evidence. Accordingly,
we overrule Shetler's sole objection to the magistrate's decision.
       {¶ 5} Following our independent review of the record pursuant to Civ.R. 53, we
find the magistrate correctly determined that Shetler is not entitled to the requested writ
of mandamus. The magistrate properly applied the pertinent law to the salient facts.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
No. 16AP-119                                                                            3


and conclusions of law contained therein. We therefore overrule Shetler's objection to the
magistrate's decision and deny his request for a writ of mandamus.
                                                                     Objection overruled;
                                                               writ of mandamus denied.

                          TYACK, P.J., and KLATT, J., concur.
No. 16AP-119                                                                          4


                                         APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Dan Shetler,                :

               Relator,                       :

v.                                            :                 No. 16AP-119

Industrial Commission of Ohio                 :             (REGULAR CALENDAR)
and
John Detweiler,                               :

               Respondents.                   :



                          MAGISTRATE'S DECISION

                                 Rendered on October 20, 2016



               Law Office of Stanley R. Jurus, and Frank A. Vitale, for
               relator.

               Michael DeWine, Attorney General, and Amanda B. Brown,
               for respondent Industrial Commission of Ohio.


                                       IN MANDAMUS

       {¶ 6} Relator, Dan Shetler, 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 denies his application for permanent total
disability ("PTD") compensation, and ordering the commission to find that he is entitled
to that compensation.
No. 16AP-119                                                                                5


Findings of Fact:
        {¶ 7} 1. Relator sustained a work-related injury on September 9, 1980, and his
workers' compensation claim has been allowed for the following conditions: "thoracic-
lumbar spine strain; compression fracture T8; clinical depression."
        {¶ 8} 2. Relator filed his first application for PTD compensation on December 3,
1986. Following a hearing on April 6, 1988, the application was denied.
        {¶ 9} 3. Relator filed his second application for PTD compensation on
August 20, 1996.     In that application, relator noted that he began receiving Social
Security Disability Benefits in August 1992.
        {¶ 10} 4. Relator's application was heard before a staff hearing officer ("SHO")
on April 23, 1997, and was denied. The SHO relied on medical reports from Drs. Soni
and VanAuken, who opined that, from both a physical and a psychological standpoint,
relator was capable of returning to his former position of employment.
        {¶ 11} 5. Relator filed his third application for PTD compensation on January 15,
1998.
        {¶ 12} 6. The matter was heard before an SHO on July 21, 1998, and was denied.
The SHO relied on reports from Drs. Tosi, VanAuken, and Soni, who opined that relator
was capable of returning to his former position of employment.
        {¶ 13} 7. Relator filed his fourth application for PTD compensation on July 30,
1999.
        {¶ 14} 8. The matter was heard before an SHO on June 28, 2000, and was
denied. The SHO relied on reports from Drs. Byrnes and Blankenhorn. Dr. Byrnes
opined that relator's allowed psychological condition had reached maximum medical
improvement ("MMI") and indicated that his psychological condition would allow him
to return to his former position of employment. Dr. Blankenhorn opined that relator's
allowed physical conditions had also reached MMI and that relator was capable of
returning to sedentary work.
        {¶ 15} Thereafter, the SHO discussed the non-medical disability factors, stating:
               The claimant is 59 years old. Such age is neither a negative,
               nor a positive factor for re-employment. While some
               employers prefer younger employees with more available
No. 16AP-119                                                                     6


               work years remaining, other employers prefer more mature,
               experienced employees.

               The claimant completed the 9th grade in school. He testified
               that he was "not interested in school," and quit school to go
               to work. Dr. Byrnes wrote that the claimant received B's in
               school when he was interested in his studies, and also
               indicated that the claimant "appears to be of average
               intellectual ability. His memory was fairly good. He retains
               the capacity to learn." This hearing officer finds such factors
               adequate for at least most entry level jobs within the
               claimant's physical restrictions. Further such factors support
               a finding that the claimant is capable of being re-trained for
               entry level work within his restrictions.

               The claimant worked in a factory after terminating his
               formal schooling. Additionally, the claimant has worked as a
               farm hand, and carpenter. The claimant performed both
               rough and finish carpentry tasks, at times supervising up to
               four workers. After his industrial injury, the claimant learned
               clock and watch repair, but did not engage in such activity
               for any sustained period. The claimant testified that he
               learned each job through on the job training, and had been
               self-employed as a carpenter, mainly working on Saturdays.

               Such a job history demonstrates an ability to learn new tasks
               after a short period of training, to work independently, to
               make independent judgments, to perform varied tasks, to do
               precise work, to work at close tolerances, and to direct
               others. This hearing officer finds the claimant does possess
               some skills, which would be transferable to other
               employment.

               For many years, the claimant had been a speaker for
               Alcoholics Anonymous, at times appearing in Akron,
               Columbus, and other locals. The claimant testified that he
               has not received any wages or donations for his appearances,
               and has not spoken at any events since February of 2000,
               when he spoke in Akron.

               The claimant testified that he can read, write, and do basic
               math. He balances his checkbook, reads the Bible, and
               attends Alcoholics Anonymous meetings twice a week. Being
               Amish, he said that he continues to take care of his horses as
               needed, does drive his horse and buggy, and attends church
               every other week.
No. 16AP-119                                                                           7


               Mark A. Pinti, M.S., CRC, CCM, ABVE, in his "Employability
               Assessment Report to the Industrial Commission of Ohio,"
               dated 3-26-2000, opines that the claimant has the following
               employment options, when considering the residual
               functional capacities listed by Dr. Blankenhorn: cashier; light
               assembly; order clerk, food and beverage; addresser; stuffer.
               This hearing officer accepts these jobs as employment
               options for this claimant.

               Based on the above listed medical capacities and the non-
               medical disability factors, this staff hearing officer finds that
               this claimant's disability is not total, and that this claimant is
               capable of engaging in sustained remunerative employment,
               or being retrained to engage in sustained remunerative
               employment. Therefore, the claimant's request for an award
               of Permanent Total Disability benefits is denied.

       {¶ 16} 9. Relator filed his fifth application for PTD compensation on
February 18, 2014.
       {¶ 17} 10. The matter was heard before an SHO on December 15, 2015. The SHO
relied on the reports of Drs. Lyall and Glazer. Dr. Lyall determined that relator's
allowed psychological condition resulted in a 15 percent permanent partial disability
and did not limit his ability to return to work.
       {¶ 18} Dr. Glazer concluded that relator had a 20 percent whole person
impairment for the allowed physical conditions and was capable of returning to
sedentary work.
       {¶ 19} Thereafter, the SHO discussed the non-medical disability factors as well as
relator's failure to attempt any type of vocational rehabilitation since 1989, and denied
the application for PTD compensation, stating:
               The Injured Worker's age at the time of this hearing is 74
               years old.

               The Injured worker's age is well past the normal retirement
               age and is a negative factor in him obtaining entry level
               positions.

               The Injured Worker's education is that of going to the 8th
               grade and at hearing on the IC-2 application he [indicated]
               he had to to go work and at hearing he indicated that he had
               to go to work for his father at that time.
No. 16AP-119                                                                            8


               The Injured Worker indicates that he has not had any other
               schooling or that he attempted to get a GED during this
               period of time.

               The Hearing Officer finds that the Injured Worker's
               education is a negative factor in him obtaining an entry level
               position.

               The Injured Worker's work experience consisted of being a
               carpenter in construction and working at a factory at 16 years
               of age for one year.

               The Hearing Officer finds that the Injured Worker's former
               occupation is also a negative factor in the Injured Worker
               obtaining any type of entry level position.

               The Hearing Officer finds that pursuant to documentation in
               file the Injured Worker has not attempted any type of
               vocational rehab since 1989.

               The Hearing Officer finds that although the Injured Worker
               has a negative response to the age, education and work
               issues, and the fact that the Injured Worker has not
               attempted any type of vocational rehab since 1989 and only
               did it sparingly prior to that time, that the Injured Worker
               has     not   submitted     sufficient   probative    medical
               documentation to establish that he is permanently and
               totally disabled, therefore the Injured Worker's request for
               granting of the application for permanent and total disability
               compensation is denied.

               Taking into consideration the [] Injured Worker is part of the
               [A]mish community, the fact that he has not attempted any
               type of effort to get back into the workforce or to prepare
               himself better to engage in the workforce, leads this Hearing
               Officer to indicate that the request for permanent and total
               disability which was filed on 02/18/2014 is as indicated,
               denied.

      {¶ 20} 11. 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.
No. 16AP-119                                                                             9


      {¶ 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} 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).
      {¶ 24} Relator argues that the commission abused its discretion when it found
that he made no effort to return to the workforce. Relator points to the transcript from
the hearing before the SHO where he indicated that, approximately six years earlier
(2009) he tried to help his brother, who owns a farm, by spending two days driving a
tractor to help clear the land. Relator testified that he was unable to do this for more
than two days. Because he made this effort, relator asserts the commission abused its
discretion when it stated that he made no attempt to return to the workforce.
       {¶ 25} As noted in the finding of fact, relator was injured on September 9, 1980.
His first application for PTD compensation was denied in 1988; his second application
was denied in 1997; and his third application was denied in 1998. In both 1997 and
1998, the commission determined that relator was capable of returning to his former
position of employment. Despite an ability to do so, there is no evidence in the record
that relator attempted to return to any work at that time. Relator's fourth application
for PTD compensation was denied in 2000. The commission relied on medical reports
indicating that his psychological condition did not preclude him from returning to work
No. 16AP-119                                                                            10


and that, from a physical standpoint, he could return to sedentary work.               The
commission referenced a March 2000 employability assessment which indicated that
relator had several employment options including cashier, light assembly, order clerk,
food and beverage, addresser, and stuffer. Despite an ability to return to some form of
employment, relator chose not to do so.
       {¶ 26} Between June 2000, when his fourth application for PTD compensation
was denied, and December 2015, when his fifth application for PTD compensation was
denied, relator testified that he spent two days (perhaps in 2009) trying to drive a
tractor on his brother's farm. As such, relator acknowledges that, in 26 years, despite
medical evidence and determinations from the commission finding that he was capable
of returning to his former position of employment, and later that he was capable of
returning to sedentary employment, relator made no efforts to do so until 2009 when he
tried to drive a tractor for his brother for two days.
       {¶ 27} The magistrate finds that it was not an abuse of discretion for the
commission to find that relator had not attempted any vocational rehabilitation since
his one attempt in 1989. At a time when he was only able to perform sedentary work, it
appears that relator attempted to do work which was not sedentary.             There is no
evidence that he contacted the Ohio Bureau of Workers' Compensation's vocational
rehabilitation unit or that he took any other steps towards preparing himself to re-enter
the workforce. PTD compensation is not intended to compensate injured workers for
simply getting older. Relator was only 41 years of age when he was injured in 1980 and
his fifth application for PTD compensation was heard when he was 74 years of age. At
that time, his allowed psychological condition was not work prohibitive and his allowed
physical conditions would permit him to perform only sedentary work.
       {¶ 28} Relator takes issue with the SHO's statement that he had "not attempted
any type of effort to get back into the workforce" when he testified that he tried to drive
a tractor on his brother's farm. In essence, it could be said that, in 26 years, and at a
time when he was limited to sedentary work only, relator made one attempt to return to
a job which was outside his physical abilities because it was not sedentary.
       {¶ 29} Relator had several years when he could have participated in vocational
rehabilitation services, improved his education, enhanced his skills, and made some real
No. 16AP-119                                                                             11


effort to return to the workforce. The magistrate finds, as did the commission, that
relator chose not to do so. Given that he began receiving Social Security Disability
Benefits in 1992 and, according solely to his testimony, tried to drive a tractor on his
brother's farm at a time when such a position would have been outside his physical
abilities, the commission's finding does not constitute an abuse of discretion.
       {¶ 30} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied his application
for PTD compensation, and this court should deny his request for a writ of mandamus.


                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA




                               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).
