[Cite as State ex rel. Heinen's, Inc. v. Indus. Comm., 2019-Ohio-4690.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Heinen's, Inc.,                       :

                 Relator,                               :

v.                                                      :                    No. 18AP-635

Industrial Commission of Ohio et al.,                   :                 (REGULAR CALENDAR)

                 Respondents.                           :


                                            D E C I S I O N

                                   Rendered on November 14, 2019


                 Battle & Polly LLC, Steven C. Polly, and Steven R. Yoo, for
                 relator.

                 Dave Yost, Attorney General, and Sherry M. Phillips, for
                 respondent Industrial Commission of Ohio.

                 Nager, Romaine & Schneiberg, L.P.A., Jerald A. Schneiberg,
                 and C. Bradley Howenstein, for respondent Harry Strachan.

                                    IN MANDAMUS
                      ON OBJECTION TO THE MAGISTRATE'S DECISION

NELSON, J.
        {¶ 1} Relator Heinen's, Inc. is absolutely correct that an employee's "failure to
participate in vocational rehabilitation can constitute voluntary abandonment of the
workforce" for disability compensation purposes. Relator's Objection to Magistrate's
Decision at 14, citing State ex rel. Bergen v. Northgate Masonry, Inc., 10th Dist. No. 15AP-
923, 2016-Ohio-7705 (upholding magistrate's determination at ¶ 43-44 that the Industrial
Commission of Ohio had "some evidence" on which to find that claimant there had failed
to provide medical evidence that he was unable to work or to undertake vocational
rehabilitation that could have improved his chances for reemployment). But the bare fact
that a claimant has declined vocational rehabilitation services does not categorically
No. 18AP-635                                                                               2

preclude the Industrial Commission of Ohio ("commission") from determining on
appropriate evidence that vocational rehabilitation efforts are obviated because the
claimant is permanently totally disabled in any event. Finding that to be a fair reading of
what happened here, we are constrained to overrule Heinen's single objection to the
magistrate's decision and to deny the writ of mandamus that Heinen's seeks.
       {¶ 2} Heinen's brought this original action asking to have this court order the
commission to reverse its grant of claimant Harry Strachan's application for permanent
total disability benefits. Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court
of Appeals, we referred the matter to a magistrate, who on April 25, 2019 issued her
decision, including findings of fact and conclusions of law, recommending against the writ.
Heinen's objects to that decision, positing that: "The Magistrate's decision, which affirms
the prior ruling from the Industrial Commission, constitutes a gross misinterpretation of
the affirmative defenses set forth in ORC 4123.58(D) and an abuse of discretion." Relator's
Objection at 3. We do not review the magistrate's decision for abuse of discretion; rather,
Civ.R. 53 (D)(4)(d) directs us to "undertake an independent review as to the objected
matters to ascertain that the magistrate has properly determined the factual issues and
appropriately applied the law." Having undertaken that review, we reach the same result.
       {¶ 3} The magistrate's decision outlines the essential facts of this matter, and
Heinen's does not call into question that recitation; we adopt those findings of fact as our
own. In a nutshell, Mr. Strachan sustained work-related injuries at the Heinen's grocery
store where he had been working part-time to supplement the social security disability
income ("SSDI") he received in connection with his rheumatoid arthritis. His treatments
over the course of time included three left shoulder surgeries and various surgeries on both
thumbs, including tendon transplants in each. His worker's compensation claim was
allowed for various conditions. Eventually referred to vocational rehabilitation, he declined
to participate after expressing concerns that the accompanying living maintenance benefit
could imperil his SSDI eligibility.
       {¶ 4} When Mr. Strachan applied for permanent total disability compensation, he
submitted evidence from a doctor and from a certified occupational consultant that his
injuries precluded any sustained remunerative employment. As the magistrate noted, the
record regarding that application "also contained medical evidence from physicians who
No. 18AP-635                                                                              3

opined that claimant was not permanently and totally disabled." See App'x at ¶ 25-28
(detailing competing medical assessments).
       {¶ 5} A commission staff hearing officer denied Mr. Strachan's permanent total
disability claim, finding that his "lack of participation in vocational rehabilitation for
reasons unrelated to the allowed conditions in the claim constitutes a voluntary
abandonment of the workforce, and therefore, injured Worker [Strachan] is not eligible for
permanent total disability." March 1, 2018 SHO Decision at 2.
       {¶ 6} On Mr. Strachan's request for reconsideration, the commission found
sufficient evidence to warrant adjudication of his allegation that the staff hearing officer
had erred in finding ineligibility based solely on a failure to engage in vocational
rehabilitation that would be irrelevant to his employability. April 2, 2018 Commission
Interlocutory Order. The commission then determined that Mr. Strachan met his burden
of proving that the staff hearing officer had made a clear mistake of law "by equating the
Injured Worker's failure to participate in vocational rehabilitation to a voluntary
abandonment of the workforce." May 10, 2018 commission ruling at 1. The commission
therefore exercised its continuing jurisdiction, and concluded that Mr. Strachan "is
permanently and totally disabled from a physical impairment standpoint alone, thus
obviating the need for a vocational analysis." Id. at 2. The commission specified that in
reaching that determination, it relied on the reports of Dr. David Copp (chiropractic
physician and certified occupational consultant) and Dr. Sheldon Kaffen (an orthopedist).
Id. The commission acknowledged and rejected Heinen's voluntary abandonment
argument, observing that a failure to engage in vocational rehabilitation does not
automatically and necessarily ("axiomatically") trigger ineligibility through workforce
abandonment (where such rehabilitation is "obviate[ed]" by the physical impairment). Id.
It granted Mr. Strachan's application for permanent total disability. Id. at 1.
       {¶ 7} Objecting to the magistrate's decision that upholds the commission's
determinations, Heinen's recites a number of legal principles and then "[m]ore
importantly" invokes our decision in Bergen as controlling the result here. Relator's
Objection at 12. We tend to agree with the statements of basic law, but find that Bergen is
entirely consistent with the commission's outcome in this case.
No. 18AP-635                                                                               4

       {¶ 8} Heinen's is correct, for example, that " '[a]n award of permanent total
disability compensation should be reserved for the most severely disabled workers and
should be allowed only when there is no possibility for re-employment.' " Relator's
Objection at 8, quoting State ex rel. B.F. Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525,
529 (1995) (ordering consideration of retraining where commission impliedly "found
claimant medically capable of some work" and "said only that claimant's present skills
would not transfer," id. at 528, 530); see also State ex rel. Wilson v. Indus. Comm., 80 Ohio
St.3d 250, 254 (1997) (failure to engage in vocational rehabilitation will not "go
unscrutinized"; affirming judgment upholding commission finding of "reemployment
potential" and consequent rejection of claimant's view "that he is incapable of sustained
remunerative employment," id. at 253).
       {¶ 9} Heinen's also is correct that statute provides that permanent total disability
shall not be compensated where an employee has "voluntarily abandoned the workforce"
and/or "has not engaged in educational or rehabilitative efforts to enhance the employee's
employability, unless such efforts are determined to be in vain." Relator's Objection at 8-
10, citing R.C. 4123.58(D)(3) and (4) and Ohio Adm.Code 4121-3-34(D)(1)(d). Heinen's is
correct, too, that voluntary abandonment and failure to undertake vocational rehabilitation
where warranted "can be relied upon individually or in combination." Relator's Objection
at 12 (emphasis omitted).
       {¶ 10} Heinen's is correct, moreover, that "the question of whether a claimant has
voluntarily retired or has voluntarily abandoned the workforce is a question of fact for the
Commission to determine." Id. at 10, citing State ex rel. Pierron v. Indus. Comm., 120 Ohio
St.3d 40, 2008-Ohio-5245.
       {¶ 11} In part for that reason, however, Heinen's is not right that Bergen
undermines the commission's conclusion here.           There, as Heinen's observes, the
magistrate's decision as adopted found " 'some evidence' " in support of the commission's
determination that vocational rehabilitation could have returned the claimant to
employment. Relator's Objection at 13, quoting magistrate's decision in ¶ 44 from Bergen.
Here, by contrast, the commission pointed to evidence that Mr. Strachan's "physical state
causes him to be permanently totally disabled," that he "cannot obtain gainful
employment," and that he "is unable to engage in any work activities secondary to the
No. 18AP-635                                                                                  5

injuries," all of which evidence the commission used "to conclude the Injured Worker is
permanently and totally disabled from a physical impairment standpoint alone, thus
obviating the need for a vocational analysis." May 10, 2018 commission ruling at 2, citing
to reports of Drs. Copp and Kaffen.
       {¶ 12} That is entirely different from the situation in Bergen where the magistrate
found that the claimant " 'failed to present any evidence' " to support his contention that he
was medically unable to work. 2016-Ohio-7705 at ¶ 4. It is, however, like State ex rel.
Tradesman Internatl. v. Indus. Comm., 10th Dist. No. 13AP-122, 2014-Ohio-1064, ¶ 18,
where we noted that "medical evidence indicated that claimant was PTD based solely on
the allowed medical conditions * * * * [, and] [a]ccordingly, a consideration of the
nonmedical factors, including whether claimant had or should have pursued vocational
rehabilitation, was unnecessary."
       {¶ 13} Heinen's takes much the same approach that the commission attributed to
its staff hearing officer in urging that Mr. Strachan's rejection of vocational rehabilitation
"for reasons not related to his claim" necessarily "constituted a voluntary abandonment of
the workforce" requiring rejection of his disability application. Objections at 14. The
commission counters that such a failure to participate need not give rise to "automatic"
benefits ineligibility, and that given the particular medical evidence here that Mr. Strachan
is incapable of sustained remunerative employment, it was a mistake of law for the hearing
officer to believe that his "failure to participate in vocational rehabilitation absolutely
precluded eligibility for PTD compensation." Memorandum of Respondent, Industrial
Commission of Ohio, Contra to Objections of Relator, at 9, 10 (also noting that statute does
not make such failure a bar to benefits where rehabilitative efforts are found to be "in vain").
Again we conclude that "[w]here, as here, medical factors alone preclude sustained
remunerative employment, there is no practical purpose for the commission to consider
nonmedical factors" such as vocational rehabilitation. Tradesman Internatl., 2014-Ohio-
1064 at ¶ 18.
       {¶ 14} Here the medical evidence on which the commission relied reflected that
"Mr. Strachan is permanently and totally disabled and is unable to perform any sustained,
remunerative employment due to his allowed conditions in this claim." Copp report at 3
(also noting at 2 that due to the work-related injuries and resulting surgeries, he "is unable
No. 18AP-635                                                                                6

to do many of the normal activities of daily living," that "his hands are non-functional," and
that he suffers other disabling problems). That evidence further indicated that "Mr.
Strachan is unable to engage in any work activities secondary to the [work-related] injuries
involving his left shoulder and both hands," and that he is prevented "from any use of his
upper extremities." Kaffen report at 6.
       {¶ 15} The burden of Heinen's argument is that "the Commission's action in this
matter constitutes a gross abuse of discretion," Relator's Objection at 15, but "[t]his court
will not determine that the commission abused its discretion when there is some evidence
in the record to support the commission's finding." Tradesman Internatl., 2014-Ohio-
1064 at ¶ 10 (citing State ex rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio St.3d 197, 198
(1986), and further explaining that this standard " 'reflects the established principle that
the commission is in the best position to determine the weight and credibility of the
evidence and disputed facts,' " quoting State ex rel. Woolum v. Indus. Comm., 10th Dist.
No. 02AP-780, 2003-Ohio-3336, ¶ 4).
       {¶ 16} We find that there is some evidence in the record permitting the commission
to determine that Mr. Strachan's medical problems were debilitating and ongoing from the
time of the work injuries and related surgeries to an extent that his employment capabilities
would not have benefitted from vocational rehabilitation, "thus obviating the need for a
vocational analysis." See May 10, 2018 commission ruling.
       {¶ 17} Finding the commission's determination to have been supported by some
evidence, we overrule Heinen's abuse of discretion objection, adopt the magistrate's
findings of fact and ultimate recommendation (for the reasons outlined above, if not
precisely as delineated in her decision), and deny the request for a writ of mandamus.
                                                          Objection overruled; writ denied.

                           SADLER and BRUNNER, JJ., concur.
                               _________________
No. 18AP-635                                                                                  7

                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Heinen's Inc.,               :

              Relator,                          :

v.                                              :                     No. 18AP-635

Industrial Commission of Ohio et al.,          :                (REGULAR CALENDAR)

              Respondents.                      :



                          MAGISTRATE'S DECISION

                                   Rendered on April 25, 2019



              Battle & Polly LLC, Steven C. Polly, and Steven R. Yoo, for
              relator.

              Dave Yost, Attorney General, and Sherry M. Phillips, for
              respondent Industrial Commission of Ohio.

              Nager, Romaine & Schneiberg, L.P.A., Jerald A. Schneiberg,
              and C. Bradley Howenstein, for respondent Harry Strachan.


                                       IN MANDAMUS

       {¶ 18} Relator, Heinen's Inc., has filed this original action requesting this court issue
a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission")
to vacate its order wherein the commission exercised its continuing jurisdiction over the
decision of its staff hearing officer ("SHO") from the January 31, 2018 hearing in which the
SHO had denied permanent total disability ("PTD") compensation to respondent Harry
Strachan ("claimant") after finding that claimant's failure to participate in vocational
No. 18AP-635                                                                               8

rehabilitation precluded him from receiving PTD compensation. The commission found
that the SHO's order contained a clear mistake of law by equating claimant's failure to
participate in vocational rehabilitation constituted a voluntary abandonment of the
workforce and, thereafter, granted PTD compensation to claimant.
Findings of Fact:
       {¶ 19} 1. Claimant sustained a work-related injury on May 5, 2009 and his workers'
compensation claim was allowed for the following conditions:
              Left shoulder dislocation; left thumb fracture; major
              depressive disorder, single episode, mild; loss of use of the
              right thumb; left shoulder rotator cuff tear; rupture extensor
              tendon bilateral thumb; non traumatic rupture of the extensor
              indicis proprius (EIP) tendon left index finger and transfer to
              left thumb.

       {¶ 20} 2. At the time of his injury, claimant was employed at relator's grocery store
in various positions. He was working in a part-time capacity to supplement his Social
Security Disability income which he had been receiving for a number of years due to
rheumatoid arthritis.
       {¶ 21} 3. As of December 26, 2013, claimant was granted a 100 percent loss of use
of his left thumb.
       {¶ 22} 4. Following his injury, claimant has undergone several surgeries to his
shoulder, as well as his right and left thumbs. Claimant still has aching and throbbing pain
in his shoulder, cannot lie on his left shoulder, and can lift no more than a half-gallon of
milk. His thumb surgeries have left him with permanent locking of both thumbs and
extension, and only some ability to move his right thumb by physically separating the joints.
He cannot use his left hand at all and cannot grasp items with his right hand.
       {¶ 23} 5. After claimant's allowed conditions reached maximum medical
improvement ("MMI"), he was referred for vocational rehabilitation services.
       {¶ 24} 6. Vocational Specialist Deborah Lee prepared a vocational evaluation report
dated January 14, 2015. Lee indicated that claimant was eager to return to work. She also
noted that claimant had been receiving Social Security Disability income for a number of
years and wanted to find part-time work to supplement this income as he had done in the
past. Lee concluded that claimant was a good candidate for vocational rehabilitation
services because of his "high level of motivation to return to employment, his openness to
No. 18AP-635                                                                              9

considering a wide range of options, and his strong customer service/communication
skills." She noted further that claimant would benefit from vocational rehabilitation
assistance because he may require a job that is either developed for him or that can
accommodate his limitations. She noted the following limitations:
              Mr. Strachan participated in a Functional Capacity Evaluation
              performed at MetroHealth Medical Center on 12/1/2014. The
              results of the evaluation place Mr. Strachan at the [s]edentary
              level of physical exertion for work activity. There was a
              recommendation to alternate his sitting position every 90
              minutes for about 5 minutes and that standing should not
              exceed 5 minutes with a 10 minute change of position before
              resuming standing. Walking is not to exceed 3 minutes in
              succession with a 10 minute change of activity before
              resuming walking.

              Mr. Strachan has additional significant restrictions which
              include bilateral reaching and handling not to exceed
              Occasional (1/3 to 2/3 of day) with no fingering. His thumb
              function, according to the FCE remains quite limited. Testing
              reflected that he was unable to perform 'pinch' activities due
              to the inability to perform thumb opposition. He could not use
              tools.

       {¶ 25} 7. Claimant's vocational rehabilitation file was closed as of April 8, 2015.
Although it was noted that claimant's treating physician Dr. Hochman had completed an
updated Medco-14 dated January 14, 2015, that record is not contained in the stipulation
of evidence for review. The initial vocational rehabilitation plan consisted of six weeks of
computer/clerical work adjustment services that would permit claimant to redevelop a
regular work routine, update his computer skills, as well as try different types of adaptive
keyboards, mouse, and other adaptive computer equipment. Thereafter, an additional six
weeks of computer/clerical work adjustment followed by three weeks of job seeking skills
training and a job search was anticipated. The closure report indicates:
              [Claimant] was anxious/excited to participate in services.
              However, when it was noted that his weekly LM rate would be
              the state minimum of $431.00 per week, he was concerned
              about losing his eligibility for SSDI benefits. Mr. Strachan
              followed up with his AOR and then made 3 separate phone
              calls to SSDI and spoke to 3 different individuals who all told
              him that if he was to get LM at that rate, he would [lose] his
              SSDI benefits permanently. Given this information,
No. 18AP-635                                                                             10

              [claimant] indicated that he did not want to chance losing his
              benefits and will therefore, not participate in VR services.
              Therefore, his VR file is being closed.

       {¶ 26} 8. Thereafter, claimant filed his application for PTD compensation.
Claimant submitted medical evidence from physicians who opined that he was not able to
perform physical work activities because of the limitations occasioned by the injury to his
left shoulder and both hands. (See the May 18, 2017 report of David Copp, certified
occupational consultant and the November 13, 2017 report of Sheldon Kaffen, M.D.)
Claimant also submitted the May 8, 2017 report of Donald Jay Weinstein, Ph.D., who
opined that claimant was permanently and totally disabled as a result of the allowed
psychological condition alone.
       {¶ 27} 9. The record also contained medical evidence from physicians who opined
that claimant was not permanently and totally disabled. Specifically, in his August 29, 2017
report, Scott E. Singer, M.D., opined it was claimant's underlying rheumatoid arthritis
which rendered him unable to perform sustained remunerative employment. Specifically,
Dr. Singer stated:
              He was 5 feet 7 inches tall and he weighed 149 pounds. A
              general survey of his left shoulder girdle revealed it to be
              higher than the right. Generalized muscle atrophy was noted.
              Active range of motion about his glenohumeral joint was
              significantly limited in all planes. He carried out flexion to
              60°, abduction to 60°, adduction to 20° and extension to 10°.
              Strength was 4-/5 on resisted internal and external rotation.
              Apprehension sign was positive.

              A survey of his hands revealed extensive, generalized,
              degenerative deformities as well as intrinsic muscle atrophy,
              bilaterally. Both thumbs were fixed in opposition to his palms
              and he had essentially no functional range of motion of any of
              the joints in either palms. He also had limited range of motion
              about the other digits in both hands, but was able to bring the
              pulps of the 3rd and 4th and 5th digits to the palms in both
              hands.

              ***

              Although the claimant has significant functional limitations,
              in both of his hands and thumbs, which would preclude his
              ability to perform sustained remunerative activities of any
No. 18AP-635                                                                              11

              kind, his condition, in that regard, is principally related to his
              underlying rheumatoid arthritis, which is not recognized in
              this claim in any context. Based solely upon the thumb
              conditions recognized in this claim, it would be reasonable to
              expect the claimant to have much greater functional
              capabilities with both hands if it were not for his underlying
              degenerative arthritic condition. As such, based solely upon
              the conditions recognized in this claim, the current medical
              evidence indicates that the claimant is not permanently and
              totally disabled.

       {¶ 28} Dr. Singer opined claimant could perform light-duty work provided there was
no forceful grasping with either hand and that claimant not perform work above shoulder
level with his left arm or work with his left arm extended away from his body.
       {¶ 29} 10. From a psychological standpoint, Loren Shapiro, Ph.D., authored a
report dated October 27, 2017 wherein he opined:
              [A] good portion of the [Injured Worker's] depression
              resulted from the loss of his life partner. This pain was still so
              active the [Injured Worker] chose to wear at least one item of
              his partner's clothing daily. The [Injured Worker] even noted
              that his life would be much better at the present time if his
              partner was still alive. * * * Clearly, the [Injured Worker] still
              had healthy thoughts and drives but his physical functioning
              interfered with carrying these out. The [Injured Worker]
              noted he had to engage in a good bit of self-pushing to
              accomplish tasks. He noted though he was always able to do
              what he had to do. Clearly, the [Injured Worker] was
              experiencing a Depressive Disorder. This depression was
              fueled by his industrial injuries, as well as unrelated injuries.
              Understanding the multidimensional components to his
              Depressive Disorder was quite important for this
              examination.

       {¶ 30} Ultimately, Dr. Shapiro concluded claimant was capable of work activities
with limitations due to the allowed psychological condition. Claimant would require
frequent breaks in a low stress position to help him have confidence on the job. Claimant
would be able to engage in one or two-step tasks and function with a flexible work schedule.
       {¶ 31} 11. The record also contains the August 28, 2017 psychological report of
Steven G. Noffsinger, M.D., who determined claimant's major depressive disorder was in
partial remission and would not be totally disabling.
No. 18AP-635                                                                             12

       {¶ 32} 12. Claimant's application was heard before an SHO on January 31, 2018 and
resulted in an order finding that claimant was not entitled to PTD compensation. The SHO
relied on medical reports to conclude that claimant was capable of performing sedentary
work with the ability to use a computer with additional limitations including the inability
to write and inability to lift greater than ten pounds. The SHO then reviewed the vocational
evidence indicating that claimant was a good candidate for vocational rehabilitation
services and noted that a viable vocational rehabilitation plan was developed, and that
claimant's treating physicians provided the appropriate medical releases for his
participation. The SHO then discussed the reasons why claimant's vocational file was
closed and concluded that claimant's failure to go forward with the plan, for reasons
unrelated to the claim, constituted a voluntary abandonment of the workforce. Specifically,
the SHO order provides:
              The Staff Hearing Officer finds that the vocational
              rehabilitation file was then closed as of 04/08/2015, as
              Injured Worker chose not to participate in services, as Injured
              Worker believed that the receipt of living maintenance
              benefits pursuant to the written plan would potentially
              jeopardize his eligibility for continued social security
              disability.

              The Staff Hearing Officer finds based upon the 04/08/2015
              closure report and testimony at hearing, that the Injured
              Worker voluntarily declined vocational services for reasons
              unrelated to the allowed conditions in the claim.

              The Staff Hearing Officer finds that Injured Worker's failure
              to make reasonable efforts to enhance his rehabilitation or
              efforts toward re-employment inconsistent with R.C.
              4123.58(D) rendering Injured Worker ineligible for
              permanent total disability.

              The Staff Hearing Officer finds Injured Worker's failure to
              participate in vocational rehabilitation and Injured Worker's
              minimal initiative for re-employment due to his belief he
              would be disqualified from continued receipt of social security
              disability, is not an extenuating circumstance or justification
              to excuse Injured Worker's participation.

              The Staff Hearing Officer finds permanent total disability
              compensation is compensation of last resort, to be awarded
              only when all reasonable avenues of accomplishing a return to
No. 18AP-635                                                                        13

              sustained remunerative employment have failed. State ex rel.
              Wilson v. Industrial Commission, 80 Ohio St.3d 250, 685
              M.E.2d 774 (1997).

              The Staff Hearing Officer, accordingly, finds Injured Worker's
              lack of participation in vocational rehabilitation for reasons
              unrelated to the allowed conditions in the claim constitutes a
              voluntary abandonment of the workforce, and therefore,
              Injured Worker is not eligible for permanent total disability.

       {¶ 33} 13. Claimant filed a request for reconsideration on March 20, 2018.
       {¶ 34} 14. In an interlocutory order mailed April 12, 2018, the commission
concluded that claimant had presented sufficient evidence of a clear mistake of law.
Specifically, the commission order provides:
              It is the finding of the Commission the Injured Worker has
              presented evidence of sufficient probative value to warrant
              adjudication of the Request for Reconsideration regarding the
              alleged presence of a clear mistake of fact in the order from
              which reconsideration is sought, a clear mistake of law of such
              character that remedial action would clearly follow, and an
              error by the subordinate hearing officer, which renders the
              order defective.

              Specifically, it is alleged the Staff Hearing Officer erred in
              finding the Injured Worker, who is now physically unable to
              engage in any sustained remunerative employment,
              voluntarily abandoned the workforce based solely upon his
              failure to participate in vocational rehabilitation to develop
              skills which are now irrelevant to his employability.

              Based on these findings, the Commission directs the Injured
              Worker's Request for Reconsideration, filed 03/20/2018, be
              set for hearing to determine whether the alleged clear
              mistakes of fact and law and error by the subordinate hearing
              officer as noted herein are sufficient for the Commission to
              invoke its continuing jurisdiction.

       {¶ 35} 15. A hearing was held before the commission on May 10, 2018. The
commission initially determined that claimant had met his burden of proving a clear
mistake of law, stating:
              After further review and discussion, it is the decision of the
              Commission the Injured Worker has met his burden of
              proving the Staff Hearing Officer order, issued 03/03/2018,
No. 18AP-635                                                                            14

             contains a clear mistake of law of such character that remedial
             action would clearly follow. Specifically, the Staff Hearing
             Officer erred by equating the Injured Worker's failure to
             participate in vocational rehabilitation to a voluntary
             abandonment of the workforce. Therefore, the Commission
             exercises continuing jurisdiction pursuant to R.C. 4123.52
             and State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454,
             692 N.E.2d 188 (1998), State ex rel. Foster v. Indus. Comm.,
             85 Ohio St.3d 320, 707 N.E.2d 1122 (1999), and State ex. rel.
             Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-
             5990, 817 N.E.2d 398, in order to correct this error.

      {¶ 36} 16. The commission relied on the medical reports of Drs. Copp and Kaffen to
conclude that claimant was permanently and totally disabled solely as a result of the
allowed physical and psychological conditions.
      {¶ 37} Thereafter, the commission rejected relator's argument that claimant had
voluntarily abandoned the workforce, stating:
             Finally, the Commission acknowledges and rejects the
             Employer's argument that payment of permanent total
             disability benefits should be precluded based on a finding the
             Injured Worker voluntarily abandoned the workforce because
             he failed to participate in vocational rehabilitation. The
             Commission finds a failure to participate in vocational
             rehabilitation does not axiomatically imply an abandonment
             of the workforce nor is such a failure to participate "a lifestyle
             choice" as was also asserted by the Employer.

             As noted earlier, the Injured Worker worked for more than
             three decades as a customer service worker in the automotive
             industry, all while suffering with the non-work related
             condition of rheumatoid arthritis, which eventually caused
             him to leave this work. The Injured Worker then re-entered
             the workforce a short time later with the instant Employer
             despite his arthritis and was successful in his position there
             until the industrial injury, which is the subject of this clam.
             Only after that injury was the Injured Worker unable to
             remain in the workforce.

             The Commission finds these circumstances to be inherently
             inconsistent with a finding of voluntary abandonment.

      {¶ 38} 17. Thereafter, relator filed the instant mandamus action in this court
asserting that the commission's exercise of continuing jurisdiction constituted an abuse of
No. 18AP-635                                                                               15

discretion and that the commission's decision to award claimant PTD compensation
despite his failure to participate in vocational rehabilitation services also constitutes an
abuse of discretion.
Conclusions of Law:
       {¶ 39} 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).
       {¶ 40} 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).
       {¶ 41} In denying claimant PTD compensation, the SHO specifically found that
claimant "chose not to participate in [vocational rehabilitation] services" because he
"believed that the receipt of living maintenance benefits * * * would potentially jeopardize
his eligibility for continued social security disability." The SHO concluded that claimant's
"minimal initiative for re-employment due to his belief he would be disqualified from
continued receipt of social security disability, is not an extenuating circumstance or
justification to excuse" his participation in vocational rehabilitation services.
       {¶ 42} Although relator argues the SHO did not automatically equate claimant's
failure to participate in vocational rehabilitation as a voluntary abandonment of
employment, the magistrate disagrees.         So did the commission when it exercised
continuing jurisdiction based on a clear mistake of law: "the [SHO] erred by equating the
No. 18AP-635                                                                                  16

Injured Worker's failure to participate in vocational rehabilitation to a voluntary
abandonment of the workforce."
       {¶ 43} R.C. 4123.58(D)(4) does provide that PTD compensation shall not be paid
when the reason the injured worker cannot perform sustained remunerative employment
is due to the injured worker's failure to engage in educational or rehabilitative efforts to
enhance their employability unless such efforts would be in vain.
       {¶ 44} In 2015, relator was 61 years of age and had worked in the customer service
industry for approximately 30 years. He had been diagnosed with rheumatoid arthritis
when he was in his 20's and had been receiving social security disability for that condition
since 2006, when he was 53 years old. He had been working part-time for relator to
supplement his social security disability since 2007. When he fell in 2009, he injured both
his hands─hands that were already affected by rheumatoid arthritis.
       {¶ 45} The question of abandonment is primarily a question of intent and all
relevant circumstances existing at the time of the alleged abandonment should be
considered. See State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 Ohio
St.3d 381 (1989). Here, the SHO failed to do so and the commission, thereafter, exercised
continuing jurisdiction.
       {¶ 46} As the vocational evidence demonstrates, claimant wanted to return to part-
time employment, not only to supplement his social security disability, but because he
enjoyed working. To that end, he was ready, willing, and able to participate in vocational
rehabilitation services. It was not until he learned he would lose his social security disability
benefits because the amount of living maintenance to be paid would be too much that he
declined those services. This cannot be characterized as a lifestyle choice─he had been
receiving those benefits since 2006 and working part-time since 2007. Although the SHO
repeatedly indicated claimant "believed" he would lose these benefits, the only evidence in
the record is the notation in the closure report that claimant made three phone calls
inquiring and his testimony that he would lose those benefits. Although, clearly, claimant's
reason for not participating was based on something unrelated to the allowed conditions in
his claim, it is a factor over which claimant had no control. The SHO did not consider all
the relevant circumstances existing at the time and instead, focused exclusively on
claimant's failure to participate. On this ground, the commission did not abuse its
No. 18AP-635                                                                           17

discretion when it exercised continuing jurisdiction and ultimately awarded claimant PTD
compensation.
      {¶ 47} Based on the foregoing, it is this magistrate's decision that this court deny
relator's 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).
