[Cite as State ex rel. Agustin v. Tepe, 2013-Ohio-5600.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT



State ex rel.                                              :
Milton Estuardo Ramos Agustin,
                                                           :
                 Relator,
                                                           :
v.                                                                 No. 12AP-972
                                                           :
Gregory H. & Mark A. Tepe,                                     (REGULAR CALENDAR)
Tepe Environmental Services, LTD.,                         :
and Industrial Commission of Ohio,
                                                           :
                 Respondents.
                                                           :


                                          D E C I S I O N

                                    Rendered on December 19, 2013


                 Evans Law Office, and Marquette D. Evans, for relator.

                 Michael DeWine, Attorney General, and Corinna V.
                 Efkeman, for respondent Industrial Commission of Ohio.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

SADLER, J.
        {¶ 1} In this original action, relator, Milton Estuardo Ramos Agustin, requests a
writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"),
to vacate its order denying him permanent total disability ("PTD") compensation and to
enter an order granting said compensation.
I. BACKGROUND
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
No. 12AP-972                                                                              2


of fact and conclusions of law, which is appended hereto. The magistrate concluded that,
when addressing relator's non-medical factors, the commission abused its discretion by
considering statements of relator's counsel as evidence. Accordingly, the magistrate
recommended that this court grant a writ of mandamus ordering the commission to
vacate its staff hearing officer's ("SHO") order of January 31, 2011, as to the analysis or
explanation of the non-medical factors and to enter an amended order consistent with the
magistrate's decision.
II. OBJECTIONS
       A. Relator's Objection
               The Magistrate erred in failing to enter an order directing the
               Industrial Commission to award Relator permanent and total
               disability compensation pursuant to State, ex rel. Gay v.
               Mihm, (1994), 68 Ohio St.3d 315.

       B. The Commission's Objection
               The magistrate erred in concluding that the commission
               abused its discretion by referencing "testimony" of counsel in
               its decision to deny PTD benefits to Ramos Agustin.

III. DISCUSSION
       {¶ 3} In the January 31, 2011 order, the SHO concluded that, when relator's
impairments arising out of the allowed condition were considered in conjunction with
relator's non-medical disability factors, relator was not entitled to PTD compensation. In
his brief to the magistrate, relator challenged the SHO's reliance on what the SHO termed
to be counsel's testimony indicating that relator was "not interested" in obtaining a work
visa. As the magistrate's decision indicates, though stating in the order that relator's
counsel "testified" at the January 31, 2011 hearing, there is no evidence indicating counsel
was actually sworn in and gave testimony at the hearing. Presuming the SHO was
referring to counsel's "statements" at the hearing, rather than actual testimony, the
magistrate correctly noted that statements of counsel are not evidence. (Magistrate's
Decision, ¶ 37.) This was the basis for the magistrate's recommendation that a limited
writ of mandamus be issued so that the commission could enter a new order with an
appropriate analysis of relator's non-medical factors.
No. 12AP-972                                                                               3


       {¶ 4} In relator's objection, he asserts the appropriate remedy is not to issue a
limited writ of mandamus ordering the commission to re-address the issue of non-
medical factors but, rather, is to issue a full writ of mandamus ordering the commission to
grant relator PTD compensation. In support, relator relies on State ex rel. Gay v. Mihm,
68 Ohio St.3d 315 (1994), which found that, "where the facts of the case indicate that
there is a substantial likelihood that a claimant is permanently and totally disabled, courts
are not and will not be precluded from ordering the [commission], in a mandamus action,
to award [PTD]."      Id. at 323.    Such relief, however, should be only awarded in
extraordinary circumstances. State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d
373, 376 (1996).
       {¶ 5} In the present case, there are no such extraordinary circumstances to
warrant Gay relief as requested by relator. As the magistrate's decision concludes, the
SHO based its decision in significant part on what the SHO referred to as testimony of
counsel. Yet, relator's counsel states no such testimony was provided, and there is no
evidence in the record that counsel was actually sworn in and provided such testimony.
As the magistrate's decision demonstrates, this record is not one in which, absent the
challenged "evidence," analysis of non-medical factors in conjunction with relator's
impairments would necessarily result in a finding of PTD.          Thus, Gay relief is not
warranted in this case, and relator's objection is overruled.
       {¶ 6} The commission argues that, rather than issue a limited writ of mandamus,
this court should simply deny the requested writ of mandamus.             According to the
commission, the magistrate inappropriately focused on the word "testimony" to reach his
conclusion that a limited writ is warranted. We disagree.
       {¶ 7} As set forth extensively in the magistrate's decision, the basis for the SHO's
analysis, with respect to relator's non-medical factors, appears to turn on what the SHO
indicated was testimonial evidence that relator was "not interested in obtaining a work
visa." The SHO's order states the SHO found relator had not made diligent and sincere
attempts to undergo vocational rehabilitation based upon the fact that relator "has no
interest" in obtaining a work visa. The SHO proceeds to state, "[i]mportantly, [relator]
has failed to set forth any reason as to why he is not interested in obtaining a work visa,
even if he only obtained it for the purposes of participating in vocational rehabilitation."
No. 12AP-972                                                                            4


Thus, the SHO's order regarding non-medical factors is premised in large part on a factual
finding that has no evidentiary support.
       {¶ 8} Though contending a limited writ of mandamus is not necessary, the
commission does not direct us to any evidence in the record that would necessarily
compel, in the absence of the alleged testimonial evidence, the commission's denial of
relator's application for PTD. "Where there is no evidence upon which the commission
could have based its factual conclusion an abuse of discretion is present and mandamus
becomes appropriate." State ex rel. Kramer v. Indus. Comm., 59 Ohio St.2d 39, 42
(1979). The commission, as the ultimate evaluator of non-medical vocational factors, is
entitled to independently weigh the evidence and reach its own conclusion. State ex rel.
Jackson v. Indus. Comm., 79 Ohio St.3d 266, 270 (1997).
       {¶ 9} Accordingly, we overrule the commission's objection to the magistrate's
decision.
IV. CONCLUSION
       {¶ 10} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of the objections presented by relator and the commission,
we find that the magistrate has properly stated the pertinent facts and applied the
appropriate law. Therefore, we overrule both the commission's and relator's objections to
the magistrate's decision and adopt the magistrate's decision as our own, including the
findings of fact and conclusions of law contained therein. Accordingly, we issue a limited
writ of mandamus ordering the commission to vacate its SHO's order of January 31, 2011
as to the analysis and explanation of non-medical factors and to enter an amended order
consistent with this decision.
                                                                    Objections overruled;
                                                      limited writ of mandamus granted.

                          DORRIAN and O'GRADY, JJ., concur.
                        _____________________________
No. 12AP-972                                                                          5


                                     APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

State ex rel.                               :
Milton Estuardo Ramos Agustin,
                                            :
               Relator,
                                            :                   No. 12AP-972
v.
                                            :               (REGULAR CALENDAR)
Gregory H. & Mark A. Tepe,
Tepe Environmental Services, LTD.,          :
and Industrial Commission of Ohio,
                                            :
               Respondents.
                                            :


                          MAGISTRATE'S DECISION

                                Rendered on July 31, 2013


               Evans Law Office, and Marquette D. Evans, for relator.

               Michael DeWine, Attorney General, and Corinna V.
               Efkeman, for respondent Industrial Commission of Ohio.


                                     IN MANDAMUS

      {¶ 11} In this original action, relator, Milton Estuardo Ramos Agustin, requests a
writ of mandamus ordering respondent Industrial Commission of Ohio ("commission")
to vacate its order denying him permanent total disability ("PTD") compensation, and to
enter an order granting the compensation.
Findings of Fact:
      {¶ 12} 1. On September 4, 2008, relator sustained an industrial injury while
employed as a laborer for respondents Gregory H. & Mark A. Tepe, Tepe Environmental
Services, Ltd., a state-fund employer.
No. 12AP-972                                                                        6


      {¶ 13} 2. On September 4, 2008, while planting trees, relator was thrown from a
bobcat and ran over by the bobcat.
      {¶ 14} 3. The industrial claim (No. 08-854045) is allowed for:
               Fracture tibia shaft-open, left; fracture of pubis-closed, left;
               fracture six left ribs-closed; fracture one right rib-closed; left
               sacroiliac joint diastasis; brachial plexopathy; depressive
               disorder; anxiety state; lumbar radiculopathy; right shoulder
               sprain; cervical sprain; trapezial sprain.

      {¶ 15} 4. On September 18, 2009, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), relator was examined by Robert L. Boyer, M.D. In his seven-
page narrative report, Dr. Boyer opined:
               The claimant is at a treatment plateau and appears to be at
               [maximum medical improvement] for all of the allowances.

               The claimant clearly cannot return to a labor intensive place
               of employment.

               The claimant is theoretically capable of remunerative
               employment. There obviously is a language barrier. He
               would be capable of utilizing his left upper extremity without
               restrictions. He would only be capable of standing for 20 to
               30 minutes at a time. Thereafter, he would need to sit for
               approximately five minutes. He would have a lifting limit of
               10 lbs. which should be performed above the horizontal
               plane relative to the waist.

               The claimant appears to be at MMI as previously described.
               The physician of record has submitted a C-9 document on 9-
               30-09 requesting Vocational Rehabilitation. A repeat IME is
               not indicated since the claimant is at MMI.

               The claimant is currently receiving physical therapy which is
               certainly necessary and appropriate at this time juncture[.]

               This examiner is in agreement with the planned vocational
               rehabilitation.

      {¶ 16} 5. On April 21, 2010, the bureau issued a "Vocational Rehabilitation
Closure Report" on form RH-21. The completed form states in part:
               The above [Injured Worker] was referred for [vocational
               rehabilitation] services on 10/05/09 and assigned to this
No. 12AP-972                                                                    7


               case manager (CM) on 10/06/09. * * * The [Injured Worker]
               stated that he sustained his work related injuries on
               09/04/08 while working as a landscaper for employer of
               record (EOR) Tepe Landscape & Design Company. The EOR,
               Greg Tepe, Owner of Tepe Landscape & Design Company
               informed CM on 10/29/09 that the [Injured Worker]
               currently only has a Medical/Visitor visa and that his Work
               Visa expired post his work related injury and that he cannot
               [return to work] in any capacity in the USA. [Injured
               Worker] indicated to the CM at the initial assessment on
               10/15/09 that he intends to go back to his homeland in
               Guatemala post completion of his [vocational rehabilitation]
               therapy program.

               CM met with the [Injured Worker] and Dr. James Lutz, M.D.
               associate of [physician of record], Dr. Daniel Buchanan,
               D.C., for pain management on 2/22/10. Dr. Lutz reviewed
               the bi-weekly progress reports from Sports Therapy dated
               2/17/10 and was in agreement with therapist's
               recommendation that no further work hardening beyond the
               remaining three weeks (total four weeks) through 3/10/01
               [sic] would be appropriate. A Medco 14 was completed by the
               doctor to continue with the remaining work hardening
               sessions 5x/week and obtain an [functional capacities
               evaluation] to determine the [Injured Worker's] current
               physical demand level. CM to follow up with [physician of
               record], on 3/9/10 for review of the FCE and final [return to
               work] release with restrictions.

               CM met with the [Injured Worker] and physical therapist,
               Cyndi Lewis, MSPT on 3/03/10 and observed the [Injured
               Worker] while participating in his FCE. Therapist indicated
               that the [Injured Worker] was doing well in all aspects of his
               activities except in reaching out and lifting/carrying objects
               up and overhead. CM met with the [Injured Worker] and
               [physician of record] on 3/9/10 for final follow up. The
               [Injured Worker] was accompanied by Maria, a relative of
               the family with whom he now lives and who speaks fluent
               English and Spanish. CM presented the [physician of record]
               with a copy of the completed FCE from Sports Therapy dated
               3/3/10 and he reviewed it. He also examined the [Injured
               Worker] and submitted the a [sic] Medco 14 releasing the
               [Injured Worker] to [return to work] on 3/11/10 with
               permanent restrictions as indicated by the physical therapist
               at the Light-Medium PDC level.
No. 12AP-972                                                                    8


               His friend, Maria, inquired if any re-training would be
               possible as the [Injured Worker] would not be able to go
               back to Guatemala to work as a construction worker which
               would be the only job available to him. CM advised that she
               had previously staffed the file with the DMC regarding his
               [return to work] options and was advised that he had
               completed all appropriate services, but without a work visa
               for the USA, any training or job search would not be
               appropriate at this time.

               CM received support of file closure from the DMC the same
               day indicating also that if the [Injured Worker] is able to
               obtain a work visa for the USA or other documentation to
               support his ability to legally stay and work in the USA, then
               further consideration for [vocational rehabilitation] may be
               considered.

               ***

               CM received and reviewed the vocational evaluation from
               Mr. Phillips on 4/19/10 and faxed a copy of the evaluation to
               all parties. CM staffed file with CareWorks case specialist
               Genie Braithwaite and DMC, Amy H., on 4/20/10 whereby
               the DMC recommended to close the [Injured Worker's]
               vocational rehab file as it was felt there were no further
               vocational rehabilitation services that could be provided the
               [Injured Worker] based on the results of the vocational
               evaluation which indicated that the [Injured Worker] was
               not appropriate for re-training due to his lack of academics
               in Spanish and English, does not have the transferable skills
               within his current physical demand level of Light to Medium
               strength range, and is non-employable as he does not have a
               work visa to work in the USA. Case specialist notified CM on
               4/21/10 that she was in agreement with recommendation
               and CM was given clearance to go forward with closure of
               this file effective 4/21/10.

      {¶ 17} 6. On May 18, 2010, at relator's request, he was examined by Bruce F.
Siegel, D.O. In his three-page narrative report, Dr. Siegel concludes:
               [I]t is my medical opinion due to these injuries that he is
               permanently unable to perform manual labor and is
               physically able to perform only sedentary or stationary type
               of employment where he is able to change positions as he
               feels is needed to accommodate his conditions.
No. 12AP-972                                                                         9


      {¶ 18} 7. At relator's request, vocational expert William T. Cody prepared a
vocational assessment or report. Cody interviewed relator on July 21, 2010. Thereafter,
Cody issued a six-page narrative report in which he opines:
               Mr. Ramos would be unable to adapt to a new kind of work
               activity. He has a significant level of pain, a restricted
               manual trade work history, a limited level of education in a
               foreign country, a lack of fluency in English, and physical
               restrictions. Under these circumstances he could not be
               expected to adequately adapt to the new tools, tasks,
               procedures, and rules involved in performing a new type of
               work activity, a type of work that he has not performed in the
               past. This holds true even for unskilled work. When a
               significant level of pain is combined with; physical
               restrictions, limited education, lack of ability to
               communicate in English, and a manual trade work history,
               they serve as contributing factors to an inability to make
               vocational adjustments.

               Therefore, in the opinion of this vocational expert, Milton
               Ramos is permanently and totally occupationally disabled.
               That is, there are no jobs in the local or national economies
               that he is able to perform. This conclusion was reached
               considering his age, limited education, lack of ability to
               speak English with any degree of fluency, manual trade work
               history, and the physical limitations that he has as a result of
               his allowed injury, claim number 09-854045. This opinion
               only considered his physical condition. The existence of
               psychological limitations stemming from allowed conditions
               can only support his permanent and total disability.

      {¶ 19} 8. On August 20, 2010, relator filed an application for PTD compensation.
      {¶ 20} 9. On October 4, 2010, at the commission's request, relator was examined
by Ron M. Koppenhoefer, M.D. In his five-page narrative report, Dr. Koppenhoefer
opines:
               Discussion: Based on my examination, it is my medical
               opinion that Mr. Agustin has reached maximum medical
               improvement for the allowed conditions in this claim. My
               rationale is based on his current symptomatology as well as
               his past medical treatment and the diagnostic studies
               quoted.
No. 12AP-972                                                                         10


               When using the AMA Guides Fifth Edition, he would have
               the following degree of impairment related to the allowed
               conditions in this claim:

               [One] Fracture tibia shaft-open left - 1% impairment for
               residual discomfort.
               [Two] Fracture six left ribs-closed, fracture one right rib-
               closed - 1% impairment for residual discomfort.
               [Three] Fracture of pubis-closed left - 0% impairment to the
               body as a whole. Table 17-33 was consulted in this regard.
               [Four] Left sacroiliac joint diastasis - 3% impairment when
               consulting Table 17-33.
               [Five] Brachial plexopathy would equal to a 10% impairment
               of the upper extremity. Table 16-15, Table 16-34 was
               consulted in this regard. This would correlate to a 6%
               impairment to the body as a whole when using Table 16-3.
               [Six] Lumbar radiculopathy would equal to a DRE Lumbar
               Category 2 degree impairment or a 5% impairment to the
               body as a whole.

               The combined values chart would equal the above to a 15%
               impairment to the body as a whole.

               Based on my examination, I believe Mr. Agustin would be
               limited in regards to his work abilities. These limitations
               would be based on the allowed conditions pertaining to his
               sacroiliac joint diastasis. I believe he would be limited in
               regards to performing stooping or prolonged bending
               activities as well as repetitive bending or lifting activities. His
               brachial plexopathy and his lumbar radiculopathy would not
               be work limiting at this time except for the possibility of
               significant endurance activities involving his right arm.

               Attached is the Physical Strength Rating which I believe
               indicates his work capabilities. I believe he could perform
               sedentary and light duty work activity at this time if
               repetitive bending and stooping activities are not part of his
               job duties.

      {¶ 21} 10. Following a January 31, 2011 hearing, a staff hearing officer ("SHO")
issued an order denying the PTD application. The SHO's order explains:
               The Staff Hearing Officer has reviewed all medical and
               vocational evidence on file, as well as that submitted at
               hearing, and bases this decision on the evidence and reasons
               cited in the following order.
No. 12AP-972                                                                          11


               After full consideration of the issue, it is the order of the Staff
               Hearing Officer that the Injured Worker's IC-2 Application
               for Permanent and Total Disability Compensation, filed
               8/20/2010, be denied.

               The Injured Worker is a 22 year old male who has one
               Workers' Compensation claim. This claim, claim number 08-
               854045, is predicated upon an industrial accident which
               occurred on 9/4/2008 when the Injured Worker was
               inadvertently thrown out of and then run over by a bobcat.
               As a result of this incident, the Injured Worker sustained
               injuries to his left leg, pubis, left ribs, right ribs, low back and
               chest. This claim also has a psychological component.

               Although this claim has a psychological component, Injured
               Worker's counsel requested that the application be processed
               without considering the allowed psychological conditions.
               Accordingly, this order considers only the allowed physical
               conditions.

               Dr. Ron Koppenhoefer examined the Injured Worker on
               10/4/2010 at the request of the Industrial Commission. Dr.
               Koppenhoefer examined the Injured Worker on the allowed
               physical conditions and concludes that the allowed physical
               conditions have reached maximum medical improvement.

               Dr. Koppenhoefer further opines that the Injured Worker
               retains the functional capacity to perform light work when
               the impairments arising from the allowed physical
               conditions are considered. Light work includes the ability to
               exert 20 pounds of force one-third of the time, 10 pounds of
               force two-thirds of the time and negligible force constantly.
               Light work may also include jobs which require walking or
               standing to a significant degree and jobs which require
               working at a production rate.

               Dr. Robert Boyer examined the Injured Worker on
               9/18/2009 at the request of the Bureau of Workers'
               Compensation. Dr. Boyer examined the Injured Worker on
               the allowed physical conditions and concludes that the
               allowed physical conditions have reached maximum medical
               improvement.

               Dr. Boyer further indicates that the Injured Worker is
               capable of performing sustained remunerative employment
               with the limitations that the Injured Worker cannot engage
No. 12AP-972                                                                     12


               in labor intensive work. Dr. Boyer also indicates that the
               Injured Worker is limited to standing for no more than 20 to
               30 minutes at a time before requiring the ability to sit for 5
               minutes. Dr. Boyer also imposes a 10 pound lifting limit.

               The Staff Hearing Officer finds that all allowed physical
               conditions have reached maximum medical improvement
               based upon the reports of Dr. Koppenhoefer and Dr. Boyer.

               The Staff Hearing Officer further find that the Injured
               Worker retains the functional capacity to perform sustained
               remunerative employment when the impairments arising out
               of the allowed physical conditions are considered based upon
               the reports of Dr. Koppenhoefer and Dr. Boyer.

               Additionally, when the Injured Worker's impairments
               arising out of the allowed conditions are considered in
               conjunction with the Injured Worker's non-medical
               disability factors, the Staff Hearing Officer finds that the
               Injured Worker retains the functional capacity to perform
               sustained remunerative employment and is therefore not
               permanently and totally disabled.

               The Staff Hearing Officer finds that the Injured Worker's
               age, 22 years old, is not a barrier to re-employment.
               Individuals of the Injured Worker's age expect to remain in
               the work force a number of years. Additionally, individuals of
               the Injured Worker's age have the ability to pursue the
               acquisition of new job skills, through short-term or on the
               job training, which would enhance the Injured Worker's
               potential for re-employment. Further, individuals of the
               Injured Worker's age have the ability to pursue formal
               vocational training or additional education which would
               enhance the Injured Worker's potential for re-employment.

               The Staff Hearing Officer finds that the Injured Worker's IC-
               2 Application for Permanent and Total Disability indicates
               that the Injured Worker has a very limited work history.
               Specifically, the Staff Hearing Officer finds that the Injured
               Worker has not worked in any capacity since 2008, at which
               time he was 20 years old. Because the Injured Worker has
               such a limited work history, the Staff Hearing Officer finds
               that the Injured Worker does not have a work history, or
               transferable skills to evaluate. Accordingly, the Staff Hearing
               Officer finds that the Injured Worker's work history
               constitutes neither a positive nor negative vocational asset.
No. 12AP-972                                                                     13


               The Staff Hearing Officer finds that the Injured Worker has a
               6th grade education obtained in Guatemala. The Staff
               Hearing Officer further finds that the Injured Worker does
               not speak English and is unable to read and write English.
               The Staff Hearing Officer finds that the Injured Worker's
               inability to read and write or speak English and his lack of
               education constitute a significant barrier to re-employment.

               However, the Staff Hearing Officer finds that the Injured
               Worker is only 22 years of age. As such, the Staff Hearing
               Officer finds that the Injured Worker has the time and ability
               to learn English and pursue further education. Accordingly,
               the Staff Hearing Officer finds that the Injured Worker's
               inability to speak, read and write English and his lack of
               education constitute barriers that the Injured Worker has the
               opportunity to eliminate.

               At hearing, the Injured Worker testified that he has only
               recently enrolled himself in English classes. The Staff
               Hearing Officer finds that it would be premature to find the
               Injured Worker's inability to speak, read and write English
               and his lack of education permanent barriers to the Injured
               Worker's re-entering the work force until such time as the
               Injured Worker makes a diligent attempt to speak, read and
               write English and pursue some type of further vocational
               training or education. The Staff Hearing Officer finds this
               particularly significant in light of the Injured Worker's young
               age.

               State ex rel. Cunningham v. Indus. Comm. (2001) 91 Ohio
               St.3d 261, sets forth the proposition that the Commission
               may consider all possible skills which may reasonably be
               developed to enhance the Injured Worker's ability to return
               to the work force. In the case at hand, the Staff Hearing
               Officer finds that an individual of the Injured Worker's age
               has numerous opportunities, both educationally and
               vocationally, to develop additional skills which would
               enhance his ability to compete in the work force.

               The Staff Hearing Officer finds that the Injured Worker has
               attempted to participate in vocational rehabilitation one
               time. However, the Bureau of Workers' Compensation
               rehabilitation closure report dated 4/21/2010 indicates that
               the Injured Worker is not feasible to participate in vocational
               rehabilitation primarily because the Injured Worker does not
               have a work visa. Further, Injured Worker's counsel testified
No. 12AP-972                                                                     14


               that the Injured Worker has extended his time to remain in
               the United States by way of a tourist visa. Injured Worker's
               counsel testified that the Injured Worker is not interested in
               obtaining a work visa because the Injured Worker plans on
               returning to Guatemala. Because the Injured Worker has
               indicated that he has no interest in obtaining a work visa, the
               Staff Hearing Officer finds that the Injured Worker has not
               made a diligent and sincere attempt to participate in
               vocational rehabilitation.

               Importantly, the Injured Worker has failed to set forth any
               reason as to why he is not interested in obtaining a work
               visa, even if he only obtained it for the purposes of
               participating in vocational rehabilitation. There is no
               evidence indicating that obtaining a work visa would hinder
               the Injured Worker's ability to return to Guatemala in any
               way.

               Based on these facts, the Staff Hearing Officer finds that the
               Injured Worker's non medical disability factors fail to
               establish that the Injured Worker is permanently incapable
               of engaging in sustained remunerative employment.

               Further, when the Injured Worker's non-medical disability
               factors are considered in conjunction with the Injured
               Worker's physical impairments arising out of the allowed
               conditions, the Staff Hearing Officer finds that the Injured
               Worker retains the functional capacity to perform sustained
               remunerative employment and is therefore not permanently
               and totally disabled.

               Accordingly, the Injured Worker's IC-2 Application for
               Permanent Total Disability, filed 08/20/2010 is denied.

               This order is based upon the reports of Dr. Boyer dated
               9/18/2009, Dr. Koppenhoefer dated 10/4/2010 and the non-
               medical disability factors.

      {¶ 22} 11. On November 19, 2012, relator, Milton Estuardo Ramos Agustin, filed
this mandamus action.
No. 12AP-972                                                                                   15


Conclusions of Law:
        {¶ 23} The commission, through its SHO, relied upon the reports of Drs. Boyer
and Koppenhoefer in determining "residual functional capacity." Ohio Adm.Code 4121-
3-34(B)(4).
        {¶ 24} Dr. Boyer stated that relator "is theoretically capable of remunerative
employment." Dr. Koppenhoefer opined that relator is medically able to "perform
sedentary and light duty work activity at this time if repetitive bending and stooping
activities are not part of his job duties."
        {¶ 25} Here, relator does not seriously challenge the commission's reliance upon
the reports of Drs. Boyer and Koppenhoefer.           In fact, relator concedes that he "is
operating under permanent physical limitations which will confine him to sedentary, or
possibly light, physical activities for the remainder of his life." (Relator's brief, at 8.)
        {¶ 26} However, relator does challenge the commission's analysis of the non-
medical factors.
        {¶ 27} According to the bureau's April 21, 2010 closure report, relator began
participation in a bureau sponsored vocational rehabilitation plan in early October
2009.
        {¶ 28} However, in late October, relator's employer informed the rehabilitation
manager ("CM") that relator's "Work Visa" had expired after the September 4, 2008
industrial injury, and that relator was currently residing in this country on a
"Medical/Visitor visa" that did not permit him to work in any capacity in this country.
Relator informed his CM that he intended to return to Guatemala after completion of
his vocational rehabilitation program.
        {¶ 29} In February 2010, the CM met with relator's physician of record James T.
Lutz, M.D., for a review of the bi-weekly therapy reports. Apparently, relator was under-
going "work hardening" which Dr. Lutz had approved.
        {¶ 30} In March 2010, the CM met with the physical therapist who indicated that
relator "was doing well in all aspects of his activities except in reaching out and
lifting/carrying objects up and overhead."
No. 12AP-972                                                                                  16


       {¶ 31} By late April 2010, the CM concluded that the vocational rehabilitation
plan should be closed. The April 21, 2010 closure report identifies three reasons for
closure: (1) "lack of academics in Spanish and English"; (2) a lack of "transferable
skills"; (3) the lack of a "work visa."
       {¶ 32} The April 29, 2010 letter to relator from the CM indicates only one reason
for closure, i.e., "[n]on-employable due to expired work visa."
       {¶ 33} In his order, the SHO heavily relies upon his finding that relator "is not
interested in obtaining a work visa." This finding is said to be premised solely upon the
testimony of relator's counsel. The SHO's order again states:
               The Staff Hearing Officer find that the Injured Worker has
               attempted to participate in vocational rehabilitation one
               time. However, the Bureau of Workers' Compensation
               rehabilitation closure report dated 4/21/2010 indicates that
               the Injured Worker is not feasible to participate in vocational
               rehabilitation primarily because the Ijured Worker does not
               have a work visa. Further, Injured Worker's counsel testified
               that the Injured Worker has extended his time to remain in
               the United States by way of a tourist visa. Injured Worker's
               counsel testified that the Injured Worker is not interested in
               obtaining a work visa because the Injured Worker plans on
               returning to Guatemala. Because the Injured Worker has
               indicated that he has no interest in obtaining a work visa, the
               Staff Hearing Officer finds that the Injured Worker has not
               made a diligent and sincere attempt to participate in
               vocational rehabilitation.

       {¶ 34} Significantly, in this action, relator's counsel denies that he so testified:
               The SHO first indicated that counsel "testified" that the
               Relator was not interested in obtaining a work visa. Current
               counsel was counsel at the PTD hearing and provided no
               testimony. No one, including counsel, expressed any
               indication of a lack of interest in changing Mr. Ramos' status
               to one which would give him access to employment
               authorization.

(Relator's brief, at 10.)

       {¶ 35} Significantly, the commission's brief fails to address the issue raised
regarding the SHO's stated reliance upon testimony of counsel.
No. 12AP-972                                                                           17


       {¶ 36} The January 31, 2011 hearing was not recorded, so we do not have a
transcript of the proceedings. We do not know precisely what counsel may have said at
the hearing. We do know that the SHO thought that he heard relator's counsel state that
relator was not interested in renewing his work visa or obtaining a new work visa.
       {¶ 37} There is no evidence in the record indicating that relator's counsel was
actually sworn and then gave testimony at the January 31, 2011 hearing. However, the
SHO's order does indicate that relator and his counsel appeared at the hearing. Given
that scenario, the SHO's remark that "Injured Worker's counsel testified" must be
viewed as a misstatement of what actually occurred at the hearing. Presumably, the
SHO's order is referring to counsel's statements at the hearing. Statements of counsel
are not evidence upon which the SHO can rely. State ex rel. Reichard v. RJ Wheels,
Inc., 193 Ohio App.3d 334, 2011-Ohio-1597.
       {¶ 38} The record is silent as to whether relator was even eligible for renewal of
his work visa. Lack of eligibility may explain the alleged lack of interest in obtaining
another work visa.
       {¶ 39} In any event, it is clear that there is no evidence to support the SHO's
finding that relator "has no interest in obtaining a work visa."
       {¶ 40} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate its SHO's order of January 31, 2011 as to
the analysis or explanation of the non-medical factors, and to enter an amended order
consistent with this magistrate's decision.

                                          /S/ MAGISTRATE
                                          KENNETH W. MACKE

                              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).
