[Cite as State ex rel. Holmes v. Indus. Comm., 2014-Ohio-4823.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

The State of Ohio, ex rel.                             :
Ramona E. Holmes,
                                                       :
                Relator,
                                                       :
v.                                                                    No. 14AP-73
                                                       :
Industrial Commission of Ohio                                      (REGULAR CALENDAR)
and Wexner Medical Center East,                        :

                Respondents.                           :



                                         D E C I S I O N

                                    Rendered on October 30, 2014


                The Bainbridge Firm, LLC, Andrew J. Bainbridge,
                Christopher J. Yeager, Carol L. Herdman and Zachary L.
                Tidaback, for relator.

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

                Isaac Wiles Burkholder & Carol Teetor, LLC, and J. Miles
                Gibson, for respondent Wexner Medical Center East.

                                            IN MANDAMUS

CONNOR, J.
        {¶ 1}    Relator, Ramona E. Holmes, has filed this original action seeking a writ of
mandamus ordering respondent Industrial Commission of Ohio to vacate its order which
denied relator's application for working wage loss ("WWL") compensation, and to order
the commission to find that she is entitled to that compensation.
        {¶ 2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision,
No. 14AP-73                                                                            2


which includes findings of fact and conclusions of law and is appended to this decision.
The magistrate recommended that we deny the requested writ of mandamus, as the
medical evidence relator submitted in support of her application for WWL was
inconsistent and equivocal, and because relator failed to support her application for WWL
with evidence of a good-faith search for suitable, comparably paying employment, as
required by Ohio Adm.Code 4125-1-01(C) and (D).
      {¶ 3} No objections to the magistrate's decision have been filed.
      {¶ 4} Finding no error of law or other defect on the face of the magistrate's
decision, and following our own independent review, we adopt the magistrate's decision
as our own, including the findings of fact and conclusions of law contained therein. In
accordance with the magistrate's recommendation, we deny the requested writ of
mandamus.
                                                              Writ of mandamus denied.
                     BROWN and LUPER SCHUSTER, JJ., concur.
                            _________________
No. 14AP-73                                                                         3


                                     APPENDIX

                            IN THE COURT OF APPEALS OF OHIO

                               TENTH APPELLATE DISTRICT

The State of Ohio ex rel.                    :
Ramona E. Holmes,
                                             :
              Relator,
                                             :
v.                                                              No. 14AP-73
                                             :
Industrial Commission of Ohio                                (REGULAR CALENDAR)
and Wexner Medical Center East,              :

              Respondents.                   :




                            MAGISTRATE'S DECISION

                                 Rendered on June 25, 2014



              The Bainbridge Firm, LLC, Andrew J. Bainbridge,
              Christopher J. Yeager, Carol L. Herdman and Zachary L.
              Tidaback, for relator.

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

              Isaac Wiles Burkholder & Carol Teetor, LLC, and J. Miles
              Gibson, for respondent Wexner Medical Center East.

                                     IN MANDAMUS


       {¶ 5} Relator, Ramona E. Holmes, 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 working wage
No. 14AP-73                                                                            4


loss ("WWL") compensation, and ordering the commission to find that she is entitled to
that compensation.
Findings of Fact:
      {¶ 6} 1. Relator sustained a work-related injury on November 10, 2010, and her
workers' compensation claim was allowed for the following conditions:
              Tendonitis right rotator cuff; right impingement syndrome;
              right rotator cuff tear.

      {¶ 7} 2. Relator treated with R. Earl Bartley, M.D., on January 10, 2011. In his
letter of that same date addressed to relator's general physician, Dr. Bartley discussed
relator's symptoms:
              The right shoulder has a normal appearance. The shoulder is
              tender to palpation along the anterolateral deltoid. Active
              shoulder motion is noted at forward flexion of 130 degrees
              with abduction of 105 degrees, both with pain. Patient has a
              positive impingement test. Patient has a positive
              supraspinatus test. Patient has a positive mild crossover test.
              Weakness is noted in the shoulder 5-/5 in all planes. Reflexes
              in the arms are normal. Neurosensory examination of the
              upper extremities is normal. I reviewed x-rays of the right
              shoulder that are normal. Diagnosis is rotator cuff
              tendinopathy. Rule out rotator cuff tear.

      {¶ 8} Thereafter, Dr. Bartley set forth the following plan:
              An MRI scan of the right shoulder. We will get authorization
              for a cortisone shot in the off chance that there is no full
              thickness or partial thickness tear of the rotator cuff. I will
              also add some Voltaren gel to apply to the shoulder and to
              see if we can calm some of this down in the interim.

      {¶ 9} 3. An MRI taken February 8, 2011 revealed the following:
              [One] Mild to moderate subacromial arch stenosis. Moderate
              hypertrophic supraspinatus and infraspinatus tendinosis.
              Without rotator cuff tendon tear. Subacromial/subdeltoid
              bursitis.
              [Two] Glenohumeral arthrosis and moderate effusion.
              [Three] Mild to moderate subscapularis tendinosis.

      {¶ 10} 4. Relator followed up with Dr. Bartley and, in an office note dated
February 14, 2011, Dr. Bartley noted that he gave relator a cortisone shot, that he would
No. 14AP-73                                                                              5


ask for a period of physical therapy to strengthen her shoulder, and that he would submit
the additional diagnosis of impingement syndrome.
       {¶ 11} 5. In an office note dated April 11, 2011, Dr. Bartley noted that surgery was
planned:
              Right shoulder arthroscopy, subacromial decompression and
              Mumford with platelet gel. We'll schedule this as an
              outpatient following authorization. Maintain current
              restrictions.

       {¶ 12} 6. Relator underwent surgery on May 5, 2011. The postoperative diagnosis
was:
              Right shoulder partial-thickness tear rotator and cuff labral
              tear with impingement syndrome acromioclavicular joint
              degenerative joint disease.

       {¶ 13} 7. There are no treatment notes in the record following the May 5, 2011
surgery until after a second surgery.
       {¶ 14} 8. The next record is an operative report dated November 10, 2011.
Apparently, relator underwent a second surgery, and Dr. Bartley noted as follows in the
operative report:
              Revision acromioplasty performed. Rotator cuff viewed
              superiorly. There was significant fraying noted at the
              supraspinatus and a thinning at the supraspinatus region.
              The partial-thickness tear was completed. * * * There was
              also noted to be some superior fraying to the supraspinatus.

       {¶ 15} 9. In an office note dated February 6, 2012, Dr. Bartley noted:
              She's ready to go back to work. We'll work strengthening
              with the Thera-Band to get her function up. I discussed this
              with her. I'll write a 25 pound lifting restriction and get her
              back to work tomorrow.

       {¶ 16} 10. Dr. Bartley completed a C-84 form dated February 6, 2012 noting that
relator was not able to return to her former position of employment and further that she
was unable to return to any other modified employment from May 5, 2011 through an
estimated return-to-work date of April 6, 2012.
No. 14AP-73                                                                                 6


         {¶ 17} 11. A letter dated February 15, 2012, was generated by CareWorks
Consultants Inc. ("CareWorks") and was directed to Dr. Bartley. According to the letter,
relator had participated in a physical therapy program and was discharged when it was
determined that she was able to return to work. It was further noted that the Ohio Bureau
of Workers' Compensation ("BWC") had received Dr. Bartley's February 6, 2012 C-84
indicating that relator was not able to return to work in any modified position. Dr. Bartley
was asked whether or not, in his medical opinion, relator had reached maximum medical
improvement ("MMI") and Dr. Bartley responded that she had not.
         {¶ 18} 12. Dr. Bartley completed a Medco-14 form dated March 22, 2012. Dr.
Bartley indicated that relator was able to return to work with restrictions from February 7
through March 20, 2012 and that she was released to return to work with no restrictions
as of March 21, 2012.
         {¶ 19} 13. In an office noted dated April 9, 2012, Dr. Bartley indicated that he
recommended a cortisone shot followed by physical therapy three times a week for three
weeks.     He also noted that he would request vocational rehabilitation for work
hardening/work conditioning, a functional capacity evaluation, and job search/job skills.
         {¶ 20} 14. Dr. Bartley completed another C-84 form dated April 9, 2012 certifying
that relator was not able to return to her former position of employment and was not able
to perform any other modified work from April 6 through an estimated return-to-work
date of July 9, 2012.
         {¶ 21} 15. A functional capacity evaluation was completed by NovaCare
Rehabilitation ("NovaCare"). In the July 9, 2012 report, the evaluators concluded that
relator was capable of performing light-duty work as follows:
               SUMMARY

               R[a]mona Holmes demonstrated the ability to function in
               the Light physical demand level according to U.S.
               Department of Labor on an 8 hour per day basis.

               R[a]mona Holmes demonstrated the ability to occasionally
               lift up to 17 lbs. floor to waist, 15 lbs. waist to shoulder, 12
               lbs. floor to shoulder and carry up to 12 lbs. occasionally.
               R[a]mona Holmes completed a single stage treadmill test at
               2.6 mph and 5% grade. This was sufficient to predict
No. 14AP-73                                                                               7


              R[a]mona Holmes's functional aerobic capacity at 3.26
              METS for an 8 hour time period.

              Deficits identified during testing include: decreased right UE
              ROM and strength; decreased right LE strength.

              R[a]mona Holmes demonstrated consistent performance
              throughout testing. This, in combination with physiological
              responses (heart rate and respiratory rate), movement and
              muscle recruitment patterns both aware and unaware of
              observation, indicates that the results of this evaluation can
              be considered to be an accurate representation of R[a]mona
              Holmes's functional abilities.

              PHYSICAL DEMAND LEVEL
              LIGHT

       {¶ 22} 16. In an office note dated July 18, 2012, Dr. Bartley noted his physical
findings on examination, indicated that he received a "verbal" to submit the request for
job search following C-9 authorization and that he would see relator back in six weeks.
       {¶ 23} 17. A C-9 requesting job search was signed by Dr. Bartley on July 23, 2012
and was allowed by CareWorks on July 26, 2012.
       {¶ 24} 18. On a vocational training tool dated July 26 and 31, 2012, it appears that
relator was found ineligible for vocational rehabilitation services because her physician of
record had confirmed that she was currently working full duty.
       {¶ 25} 19. In a letter dated August 3, 2012, relator appealed the decision to deny
her vocational rehabilitation explaining that, for financial reasons, she had been working
two jobs when she was injured and that, while she was currently able to perform one of
those jobs, she was not able to perform the other and did need vocational rehabilitation
services.
       {¶ 26} 20. In a letter dated August 27, 2012, relator asked respondent Wexner
Medical Center East ("Wexner Medical Center") if she could return to her former position
of employment at Talbot Hall as a patient care coordinator within the physical limitations
prescribed by the functional capacity evaluation ("FCE") dated July 9, 2012.
       {¶ 27} 21. In a medical report dated September 14, 2012, Dr. Bartley noted that
relator had the following restrictions from February 7, 2012 through July 18, 2013: could
No. 14AP-73                                                                              8


sit for up to three hours in an eight-hour work day but could not stand nor could she walk;
occasionally lift and carry between 11 and 17 pounds; precluded from using her right arm
for pushing and pulling arm controls; and further limited with regards to bending,
squatting, crawling, and reaching.
      {¶ 28} 23. On October 23, 2012, relator filed a C-86 motion asking for WWL
compensation from February 7, 2012 through the present and continuing.             Relator
indicated that she attached a power of attorney, the C-140 completed by Dr. Bartley, her
letter to her employer of record asking that she be returned to work, the FCE, her
registration with OhioMeansJobs, as well as paystubs.
      {¶ 29} 24. Relator's motion was heard before a district hearing officer ("DHO") on
December 7, 2012. The DHO denied relator's motion, finding that it was not supported by
sufficiently persuasive evidence. The DHO stated:
              It is the order of the District Hearing Officer that payment of
              working wage loss compensation is denied from 02/27/2012
              through 12/07/2012. The District Hearing Officer finds that
              wage loss compensation over that period is not supported by
              sufficiently persuasive evidence of injury-related physical
              restrictions. Specifically, Dr. Bartley's C-140 Medical Report
              dated 09/14/2012 is found to be unpersuasive in restricting
              the Injured Worker to sitting three hours, standing 0 hours,
              and walking 0 hours per eight hour work day in addition to
              restrictions on lifting and carrying, for the period
              02/07/2012 through 07/18/2013. This claim is allowed only
              for right shoulder conditions. Dr. Bar[t]ley has not explained
              why those conditions would cause any restriction on sitting,
              standing, and walking, let alone the severe time limits he
              imposed. Moreover, the report dated 09/14/2012 is
              inconsistent with Dr. Bar[t]ley's earlier MEDCO-14 report
              dated 03/22/2012, in which he stated that the Injured
              Worker could return to work with no restrictions on
              03/21/2012. That retroactive change of opinion has not been
              explained.

      {¶ 30} 25. Dr. Bartley completed another C-140 medical report dated January 4,
2013, wherein he indicated that relator could sit, stand, and walk, each for up to eight
hours a day, occasionally lift and carry between 11 and 20 pounds, was restricted from
pushing and pulling arm controls with her right leg, could continuously squat, crawl, and
climb, but had limitations in bending and reaching.
No. 14AP-73                                                                             9


      {¶ 31} 26. In an office note dated January 9, 2013, Dr. Bartley noted:
              To maintain current work restrictions. There had to be
              adjustments made due to an error in completion of the work
              restriction form. This has been amended. Follow up in the
              office in six months for a routine check.

      {¶ 32} 27. Relator's appeal was heard before a staff hearing officer ("SHO") on
January 25, 2013. The SHO vacated the prior DHO order and relied on the FCE and the
January 4, 2013 corrected C-140 of Dr. Bartley to find that relator was medically entitled
to WWL. Thereafter, the SHO noted that Ohio Adm.Code section 4125-1-01(D)(1)(c)
requires additional job search efforts from those seeking WWL, but not working in an
amount of time equal to their former position of employment. The SHO specifically found
that relator did not perform any additional documented job search while performing her
second employment position during this period equal to the combination of hours that
exceeded full-time hours in the former positions of employment. As such, while the SHO
did award WWL, the SHO reduced it as follows because relator had not performed a job
search:
              The Staff Hearing Officer finds that the Injured Worker did
              not perform any additional documented job search while
              performing her second employment position over this period
              equal to the combination of hours that exceeded full-time
              hours in the former positions of employment. The Staff
              Hearing Officer therefore finds the provision of Ohio
              Adm.Code 4125-1-01(F)(3)(b) applicable and awards wage
              loss compensation pursuant to that provision, to wit: The
              Injured Worker is to be paid wage loss compensation as the
              average weekly wage less actual wages earned times 2/3,
              reduced by a commensurate amount proportional to the
              number of hours actually worked, i.e. 36 hours worked per
              week is reduced by an additional 10%; 34 hours worked per
              week is reduced by an additional 15%; and 32 hours worked
              per week is reduced by an additional 20%, etc. This award is
              not to exceed the weekly statutory maximum allowable for a
              2010 claim and may not exceed 200 weeks.

              Finally, the Staff Hearing Officer finds that the Injured
              Worker did register with Ohio Department of Jobs and
              Family Services and did seek suitable employment with the
              instant Employer, per documents on file, satisfying those
              requirements. Therefore, the Staff Hearing Officer grants the
No. 14AP-73                                                                           10


              request for wage loss compensation but only to the extent
              expressed in this order.

       {¶ 33} 28. Wexner Medical Center filed a request for reconsideration arguing that
the SHO order contained a clear mistake of fact and law because the SHO awarded relator
WWL compensation despite the fact that she did not conduct a good-faith job search.
       {¶ 34} 29. In an interlocutory order mailed April 10, 2013, the commission
determined that the employer presented sufficient evidence to warrant adjudication of the
request for reconsideration because the SHO granted WWL despite the fact that relator
had failed to conduct a job search.
       {¶ 35} 30. Before the hearing on the request for reconsideration, Dr. Bartley
authored a report dated May 10, 2013, wherein he stated:
              I have reviewed my notes regarding Ramona Holmes. As you
              are aware, she has sustained a right shoulder injury on
              November 10, 2011, and was seen in the office for this injury
              on January 10, 2011. An MRI scan was obtained of the right
              shoulder on February 7, 2011, that revealed subacromial arch
              stenosis with moderate hypertrophic supraspinatus and
              infraspinatus tendinosis without rotator cuff tear and
              glenohumeral arthrosis with mild-to-moderate subscapularis
              tendinosis. She underwent right shoulder arthroscopy on
              May 11, 2011, and subsequently underwent repeat surgery to
              the right shoulder on November 10, 2011, for right rotator
              cuff repair after the initial surgery arthroscopically was
              unsuccessful. Her duties and time were decreased following
              the evaluation of the MRI scan result. I felt that the right
              shoulder problem that was seen on MRI scan would result in
              difficulties that limiting her work hours would be the
              reasonable thing to do until we could address this surgically.
              This was the case. Our intention was to solve this problem
              surgically and then return her back to full duty, however,
              after the initial surgery, she did not progress and a
              subsequent surgery was required.

       {¶ 36} 31. A hearing was held before the commission on May 21, 2013. The SHO
found that the employer had met its burden of proof finding:
              After further review and discussion, it is the finding of the
              Industrial Commission that the Employer has met its burden
              of proving that the Staff Hearing Officer order, issued
              01/31/2013, contains clear mistakes of fact and law.
No. 14AP-73                                                                       11


              Specifically, the Staff Hearing Officer committed clear
              mistakes of fact and law when he found the C-140 of R. Earl
              Bartley, M.D., dated 01/04/2013, and the Functional
              Capacity Evaluation (FCE), dated 07/09/2012, were
              persuasive evidence and relied upon these reports to award
              working wage loss compensation commencing 02/07/2012.
              The Commission finds Dr. Bartley's C-84 Requests for
              Temporary Total Disability Compensation dated 02/06/2012
              and 04/09/2012, Dr. Bartley's office notes dated
              02/06/2012, 04/09/2012, 07/18/2012, and 01/09/2013, Dr.
              Bartley's 03/22/2012 Medco-14 Physician's Reports of Work
              Ability, and Dr. Bartley's C-140 Medical Reports, dated
              09/14/2012 and 01/04/2013, provide contradictory and
              inconsistent opinions regarding the Injured Worker's
              capacity to return to light-duty and the Injured Worker's
              capacity to perform full-duty work without restrictions.
              Furthermore, Dr. Bartley's 09/14/2012 C-140 report
              appeared to have considered conditions not allowed in the
              claim. Dr. Bartley's 09/14/2012 C-140 report also differs
              from his 01/04/2013 C-140 report. Dr. Bartley's opinions are
              found to be equivocal and inconsistent. Therefore, Dr.
              Bartley's reports are not found to be persuasive medical
              evidence supporting payment of working wage loss
              compensation, commencing 02/07/2012, per State ex rel.
              Eberhardt v. Flexible [sic] Corp., 70 Ohio St.3d 649, 640
              N.E.2d 815 (1994).

              In addition the Commission finds the Staff Hearing Officer
              made a clear mistake of law when he awarded working wage
              loss compensation from 02/07/2012, despite the lack of any
              documented job search effort to seek suitable work of
              comparable pay as required by Ohio Adm.Code 4125-1-01.

      {¶ 37} As a result, the commission vacated the January 31, 2013 order. At the
outset, the commission discussed the work relator was engaged in at the time she was
injured:
              By way of history, the Injured Worker was injured on
              11/10/2010 while working as a patient care coordinator for
              Wexner Medical Center East (the Employer of Record). The
              Injured Worker's duties as a patient care coordinator were
              similar to that of a nurse, a fast-paced job that sometimes
              required heavy lifting. At the time of the industrial injury,
              the Injured Worker was working part-time as a patient care
              coordinator for the Employer (approximately 24 hours per
No. 14AP-73                                                                            12


              week), and was working full-time as a staff nurse (40 hours
              per week) with Comp Drug Corp. per the Injured Worker's
              testimony at hearing. The Injured Worker's position at Comp
              Drug Corp. was a sedentary position. The Injured Worker
              received temporary total disability compensation from
              05/05/2011 through 02/06/2012. On 02/07/2012, the
              Injured Worker returned to work as a staff nurse at Comp
              Drug Corp. (the sedentary position), but only worked part-
              time rather than full-time. There was no explanation
              provided at hearing why the Injured Worker did not return
              to work full-time with Comp Drug Corp. The Injured Worker
              did not return to her part-time position as a patient care
              coordinator with the Employer. Per the 03/06/2012 and
              09/05/2012 Bureau of Workers' Compensation (BWC)
              Claims Service Specialist notes, Employer terminated the
              Injured Worker due to the length of her leave of absence. The
              Injured Worker's average weekly wage was set at $2,401.76
              per a 02/20/2013 BWC order. The Injured Worker's average
              weekly wage was based upon earnings from both employers.

       {¶ 38} Thereafter, the commission denied relator's request for WWL for two
reasons. First, the commission found that the medical evidence on file was not persuasive
because Dr. Bartley's evidence was inconsistent and equivocal. The commission first
pointed out the discrepancy between Dr. Bartley's February 6, 2012 C-84 report
indicating that relator was unable to return to her former position of employment and was
not able to return to other employment from May 5, 2011 to April 6, 2012 and compared it
to his February 6, 2012 office note wherein he indicated that relator was doing better and
was ready to go back to work lifting up to 25 pounds.
       {¶ 39} The commission next noted the February 21, 2012 questionnaire from
CareWorks wherein Dr. Bartley indicated that relator had not reached MMI and that she
had returned to work with restrictions on February 7, 2012. The commission compared
that to the March 22, 2012 Medco-14 indicating that relator had temporary restrictions
from February 7 through March 20, 2012 and was released to return to work with no
restrictions on March 21, 2012. The commission identified several more inconsistencies
and identified those in its order. (Stipulation of evidence, 74-78.)
       {¶ 40} The commission also noted that there was a gap in treatment from July 19,
2012 through January 9, 2013. Based on the numerous inconsistencies in Dr. Bartley's
No. 14AP-73                                                                                13


office notes, C-84, Medco-14, and C-140 reports regarding relator's physical limitations,
the commission found that Dr. Bartley's opinion was not persuasive.
       {¶ 41} The commission also denied relator's request for WWL compensation
because there was no documented job search from February 7, 2012 through mid-May
May 2013. The commission cited Ohio Adm.Code 4125-1-01, noted that relator did not
contact her employer of record until August 27, 2012, and had not provided
documentation that she registered with the Ohio Department of Job and Family Services
("ODJFS"), and that her submission of on-line job search efforts beginning mid-May May
2013 were insufficient evidence of a good-faith job search. As such, the commission
denied relator's request for WWL compensation.
       {¶ 42} 32. Thereafter, relator, Ramona E. Holmes, filed the instant mandamus
action in this court.
Conclusions of Law:
       {¶ 43} Relator argues that the commission abused its discretion when it
erroneously found that relator had failed to register with ODJFS as required by Ohio
Adm.Code 4125-1-01 and when it failed to rely on Dr. Bartley's explanation contained in
his May 10, 2013 letter.
       {¶ 44} The magistrate finds that the commission did abuse its discretion when it
found that relator had failed to register with ODJFS and specifically notes that the
commission acknowledges that error, but that the commission did not abuse its discretion
when it found that the medical evidence that relator submitted in support of her motion
for WWL compensation was inconsistent and equivocal, and the commission was not
bound to accept Dr. Bartley's explanation contained in his May 10, 2013 letter.
       {¶ 45} 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).
       {¶ 46} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
No. 14AP-73                                                                             14


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).
       {¶ 47} The commission found that the medical evidence submitted from Dr.
Bartley was inconsistent and equivocal.
       {¶ 48} In State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649, 657 (1994),
the Supreme Court of Ohio summarized the distinction between the ambiguous, equivocal
and repudiated reports as follows:
              [E]quivocal medical opinions are not evidence. See, also,
              State ex rel. Woodard v. Frigidaire Div., Gen. Motors Corp.
              (1985), 18 Ohio St.3d 110 * * *. Such opinions are of no
              probative value. Further, equivocation occurs when a doctor
              repudiates an earlier opinion, renders contradictory or
              uncertain opinions, or fails to clarify an ambiguous
              statement. Ambiguous statements, however, are considered
              equivocal only while they are unclarified. [State ex rel.
              Paragon v. Indus. Comm., 5 Ohio St.3d 72 (1983).] Thus,
              once clarified, such statements fall outside the boundaries of
              [State ex rel. Jennings v. Indus. Comm., 1 Ohio St.3d 101
              (1982)], and its progeny.

              Moreover, ambiguous statements are inherently different
              from those that are repudiated, contradictory or uncertain.
              Repudiated, contradictory or uncertain statements reveal
              that the doctor is not sure what he means and, therefore,
              they are inherently unreliable. Such statements relate to the
              doctor's position on a critical issue. Ambiguous statements,
              however, merely reveal that the doctor did not effectively
              convey what he meant and, therefore, they are not inherently
              unreliable. Such statements do not relate to the doctor's
              position, but to his communication skills. If we were to hold
              that clarified statements, because previously ambiguous, are
              subject to Jennings or to commission rejection, we would
No. 14AP-73                                                                            15


              effectively allow the commission to put words into a doctor's
              mouth or, worse, discount a truly probative opinion. Under
              such a view, any doctor's opinion could be disregarded
              merely because he failed on a single occasion to employ
              precise terminology. In a word, once an ambiguity, always an
              ambiguity. This court cannot countenance such an exclusion
              of probative evidence.

      {¶ 49} In its order, the commission noted numerous inconsistencies in the medical
records of Dr. Bartley including: (1) The February 6, 2012 C-84 report indicated that
relator was unable to return to her former position of employment and was not able to
return to any other employment from May 5, 2011 to April 6, 2012, while the February 6,
2012 office note indicated that relator was doing better and was ready to go back to work,
and that relator could lift up to 25 pounds and could return to work February 7, 2012; (2)
On February 21, 2012, Dr. Bartley indicated that relator had not reached MMI and that
she had returned to work with restrictions on February 7, 2012; however, on March 22,
2012, Dr. Bartley completed a Medco-14 indicating that relator had temporary restrictions
from February 7 through March 20, 2012 and was released to return to work with no
restrictions on March 21, 2012; (3) On April 9, 2012, Dr. Bartley completed a C-84
certifying temporary total disability ("TTD") compensation from April 6 through July 9,
2012 indicating that relator could not return to her former position of employment nor
could she perform any other employment; however, his April 9, 2012 office note indicated
that relator had been doing better, that her employer would not permit her to return to
work because she had been off too long. Dr. Bartley recommended a job search, an FCE,
vocational rehabilitation, and a work-hardening/work conditioning program; (4) C-84
forms completed by relator during that time period indicated that she was working; (5)
Dr. Bartley's July 18, 2012 office note indicated that relator's right shoulder was stable
and that he was requesting that she be accepted for job search; (6) Dr. Bartley's
September 14, 2012 C-140 medical report noted limitations based on a July 18, 2012
medical examination; however, Dr. Bartley failed to indicate if the restrictions were
temporary or permanent, and that they were for a retroactive five-month period of time
beginning February 7, 2012 through July 18, 2013.          Dr. Bartley included specific
limitations, which included that relator was not able to stand or walk at all.       (The
commission specifically found that limitations on relator's ability to stand, walk, squat,
No. 14AP-73                                                                                16


and bend were not related to the allowed right shoulder conditions.); (7) The July 9, 2012
FCE indicated that relator was capable of performing light physical work; (8) There was a
gap in treatment and no medical records existed from July 19, 2012 through January 9,
2013; (9) Dr. Bartley's January 9, 2013 examination indicated that relator's work
restrictions were being maintained and that adjustments had been made in the
completion of work restrictions due to errors. (As the commission noted, Dr. Bartley did
not provide any explanation as to what the adjustment or errors were.); and (10) Dr.
Bartley's C-140 medical report dated January 4, 2013 was based on his December 28,
2012 examination and continued some of the earlier restrictions in terms of lifting, but
indicated that relator had no limitations regarding sitting, standing, and walking.
       {¶ 50} Upon review of the aforementioned records, the magistrate finds that the
commission did not abuse its discretion by finding that the medical reports of Dr. Bartley
were inconsistent and equivocal. He opined that she was unable to perform any work
whatsoever at a time when it is clear that she was working. While it is true that she was
performing a job that she had been performing at the same time that she was injured
while also working for the employer of record here, it is clear that, despite his opinion that
she could not work at all, she was working. Further, Dr. Bartley indicated that relator had
no restrictions and then noted that she had restrictions while his office notes indicated
that she was doing better. After opining that she could perform no work whatsoever, Dr.
Bartley recommended a job search, an FCE, vocational rehabilitation, and a work-
hardening/work-conditioning program. All of these are inconsistent.
       {¶ 51} Relator contends that the commission abused its discretion by not accepting
Dr. Bartley's explanation. A doctor may clear up any inconsistency or ambiguity in his
reports. Dr. Bartley's May 10, 2013 report provides:
              I have reviewed my notes regarding Ramona Holmes. As you
              are aware, she has sustained a right shoulder injury on
              November 10, 2011, and was seen in the office for this injury
              on January 10, 2011. An MRI scan was obtained of the right
              shoulder on February 7, 2011, that revealed subacromial arch
              stenosis with moderate hypertrophic supraspinatus and
              infraspinatus tendinosis without rotator cuff tear and
              glenohumeral arthrosis with mild-to-moderate subscapularis
              tendinosis. She underwent right shoulder arthroscopy on
              May 11, 2011, and subsequently underwent repeat surgery to
No. 14AP-73                                                                            17


              the right shoulder on November 10, 2011, for right rotator
              cuff repair after the initial surgery arthroscopically was
              unsuccessful. Her duties and time were decreased following
              the evaluation of the MRI scan result. I felt that the right
              shoulder problem that was seen on MRI scan would result in
              difficulties that limiting her work hours would be the
              reasonable thing to do until we could address this surgically.
              This was the case. Our intention was to solve this problem
              surgically and then return her back to full duty, however,
              after the initial surgery, she did not progress and a
              subsequent surgery was required.

       {¶ 52} Contrary to relator's argument, this letter does not explain why Dr. Bartley
issued contrary and equivocal opinions during the relevant time period. The magistrate
finds that the commission did not abuse its discretion by not accepting this as an
explanation and in continuing to find that the medical evidence was insufficient.
       {¶ 53} With regard to relator's job search, the commission has already
acknowledged that it abused its discretion when it indicated that there was no evidence
that relator had registered with ODJFS. However, the magistrate finds the commission
did not abuse its discretion in denying relator's application for WWL compensation after
finding that she had not conducted a good-faith job search for suitable employment which
is comparably paying work.
       {¶ 54} Entitlement to wage loss compensation is governed by R.C. 4123.56(B),
which provides:
              Where an employee in a claim allowed under this chapter
              suffers a wage loss as a result of returning to employment
              other than the employee's former position of employment or
              as a result of being unable to find employment consistent with
              the claimant's physical capabilities, the employee shall receive
              compensation at sixty-six and two-thirds per cent of the
              employee's weekly wage loss not to exceed the statewide
              average weekly wage for a period not to exceed two hundred
              weeks.

       {¶ 55} In order to receive workers' compensation, a claimant must show not only
that a work-related injury arose out of and in the course of employment, but, also, that a
direct and proximate causal relationship exists between the injury and the harm or
disability. State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). This principle
No. 14AP-73                                                                             18


is equally applicable to claims for wage loss compensation. State ex rel. The Andersons v.
Indus. Comm., 64 Ohio St.3d 539 (1992). As noted by the court in State ex rel. Watts v.
Schottenstein Stores Corp., 68 Ohio St.3d 118 (1993), a wage loss claim has two
components: a reduction in wages and a causal relationship between the allowed
condition and the wage loss.
      {¶ 56} In considering a claimant's eligibility for wage loss compensation, the
commission is required to give consideration to, and to base the determination on,
evidence relating to certain factors, including claimant's search for suitable employment.
The Supreme Court of Ohio has held that a claimant is required to demonstrate a good-
faith effort to search for suitable employment which is comparably paying work before
claimant is entitled to both nonworking wage loss and working wage loss compensation.
State ex rel. Pepsi-Cola Bottling Co. v. Morse, 72 Ohio St.3d 210 (1995); State ex rel.
Reamer v. Indus. Comm., 77 Ohio St.3d 450 (1997); and State ex rel. Rizer v. Indus.
Comm., 88 Ohio St.3d 1 (2000). A good-faith effort necessitates claimant's consistent,
sincere, and best attempt to obtain suitable employment that will eliminate the wage loss.
      {¶ 57} Ohio    Adm.Code     4125-1-01(A)    defines   "suitable   employment"   and
"comparably paying work" as follows:
              (7) "Suitable employment" means work which is within the
              claimant's physical capabilities, and which may be
              performed by the claimant subject to all physical,
              psychiatric, mental, and vocational limitations to which the
              claimant is subject at the time of the injury which resulted in
              the allowed conditions in the claim or, in occupational
              disease claims, on the date of the disability which resulted
              from the allowed conditions in the claim.

              (8) "Comparably paying work" means suitable employment
              in which the claimant's weekly rate of pay is equal to or
              greater than the average weekly wage received by the
              claimant in his or her former position of employment.

      {¶ 58} Ohio Adm.Code 4125-1-01(C) identifies for claimants the relevant
information which must be contained in an application for wage loss compensation.
Specifically, Ohio Adm.Code 4125-1-01(C)(5) provides:
              (5) All claimants seeking or receiving working or non-
              working wage loss payments shall supplement their wage
No. 14AP-73                                                                         19


              loss application with wage loss statements, describing the
              search for suitable employment, as provided herein. The
              claimant's failure to submit wage loss statements in
              accordance with this rule shall not result in the dismissal of
              the wage loss application, but shall result in the suspension
              of wage loss payments until the wage loss statements are
              submitted in accordance with this rule.

              (a) A claimant seeking or receiving wage loss compensation
              shall complete a wage loss statement(s) for every week
              during which wage loss compensation is sought.

              (b) A claimant seeking wage loss compensation shall submit
              the completed wage loss statements with the wage loss
              application and/or any subsequent request for wage loss
              compensation in the same claim.

              (c) A claimant who receives wage loss compensation for
              periods after the filing of the wage loss application and/or
              any subsequent request for wage loss compensation in the
              same claim shall submit the wage loss statements completed
              pursuant to paragraphs (C)(5)(a), (C)(5)(d) and (C)(5)(e) of
              this rule every four weeks to the bureau of worker's
              compensation or the self-insured employer during the period
              when wage loss compensation is received.

              (d) Wage loss statements shall include the address of each
              employer contacted, the employer's telephone number, the
              position sought, a reasonable identification by name or
              position of the person contacted, the method of contact, and
              the result of the contact.

              (e) Wage loss statements shall be submitted on forms
              provided by the bureau of workers' compensation.

              Thereafter, Ohio Adm.Code 4125-1-01(D) provides, in pertinent part:
              (D) The claimant is solely responsible for and bears the
              burden of producing evidence regarding his or her
              entitlement to wage loss compensation. Unless the claimant
              meets this burden, wage loss compensation shall be denied.

              ***

              In considering a claimant's eligibility for compensation for
              wage loss, the adjudicator shall give consideration to, and
No. 14AP-73                                                                       20


              base the determinations on, evidence in the file, or presented
              at hearing, relating to:

              (1) The claimant's search for suitable employment.

              (a) As a prerequisite to receiving wage loss compensation for
              any period during which such compensation is requested,
              the claimant shall demonstrate that he or she has:

              (i) Complied with paragraph (C)(2) of this rule and, if
              applicable, with paragraph (C)(3) of this rule [relating to the
              submission of medical evidence];

              (ii) Sought suitable employment with the employer of record
              at the onset of the first period for which wage loss
              compensation is requested. The claimant shall also seek
              suitable employment with the employer of record where
              there has been an interruption in wage loss compensation
              benefits for a period of three months or more; and

              (iii) Registered with the Ohio bureau of employment services
              and begun or continued a job search if no suitable
              employment is available with the employer of record.

              (b) A claimant may first search for suitable employment
              which is within his or her skills, prior employment history,
              and educational background. If within sixty days from the
              commencement of the claimant's job search, he or she is
              unable to find such employment, the claimant shall expand
              his or her job search to include entry level and/or unskilled
              employment opportunities.

              (c) A good faith effort to search for suitable employment
              which is comparably paying work is required of those
              seeking non-working wage loss and of those seeking
              working-wage loss who have not returned to suitable
              employment which is comparably paying work, except for
              those claimants who are receiving public relief and are
              defined as work relief employees in Chapter 4127. of the
              Revised Code. A good faith effort necessitates the claimant's
              consistent, sincere, and best attempts to obtain suitable
              employment that will eliminate the wage loss.

      {¶ 59} Ohio Adm.Code 4125-1-01(D)(1)(c) provides certain relevant factors to be
considered by the commission in evaluating whether claimant has made a good-faith
No. 14AP-73                                                                              21


effort.     Those factors including: claimant's skills, prior employment history, and
educational background; the number, quality, and regularity of contacts made with
prospective employers; for a claimant seeking any amount of working wage loss
compensation, the amount of time devoted to making prospective employer contacts
during the period for which working wage loss is sought, as well as the number of hours
spent working, any refusal by claimant to accept assistance from the BWC in finding
employment; any refusal by claimant to accept the assistance of any public or private
employment agency; labor market conditions; claimant's physical capabilities; any recent
activity on the part of claimant to change her place of residence and the impact such
change would have on the reasonable probability of success and the search for
employment; claimant's economic status; claimant's documentation of efforts to produce
self-employment income; any part-time employment engaged in by claimant and whether
that employment constitutes a voluntary limitation on claimant's present earnings;
whether claimant restricts her search to employment that would require her to work fewer
hours per week than she worked in the former position of employment; and whether, as a
result of physical restrictions, claimant is enrolled in a rehabilitation program.
          {¶ 60} As the commission noted, relator did not provide a documented job search
for the period February 7, 2012 through mid-May May 2013. There simply was no
evidence in the record from which the commission could have found otherwise. The
commission specifically noted that relator provided information of an online job search
beginning mid-May 2013; however, the commission found that relator's documentation
was insufficient evidence of a good-faith job-search effort because relator did not identify
the type of position sought, the person/employer contact, and whether the position
sought was within relator's physical limitations. Relator was required to do so in order to
be entitled to an award of WWL compensation, and her failure to do so constitute grounds
to deny her motion.
          {¶ 61} Based on the foregoing, the magistrate finds it unnecessary to remand this
matter to the commission for it to correct its order to indicate that relator had registered
with ODJFS because to do so would not change the ultimate decision reached by the
commission. The magistrate finds that relator has not demonstrated that the commission
No. 14AP-73                                                                          22


abused its discretion when it denied her application for working wage loss compensation,
and this court should deny relator's request for a writ of mandamus.


                                                /S/ MAGISTRATE
                                                STEPHANIE BISCA BROOKS


                             NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
              as error on appeal the court's adoption of any factual finding
              or legal conclusion, whether or not specifically designated as
              a finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically
              objects to that factual finding or legal conclusion as required
              by Civ.R. 53(D)(3)(b).
