[Cite as State ex rel. Hedges v. Indus. Comm. of Ohio, 2015-Ohio-4681.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State of Ohio ex rel. Paul C. Hedges,              :

                 Relator,                              :

v.                                                     :                     No. 15AP-49

Industrial Commission of Ohio and                      :                  (REGULAR CALENDAR)
Sterling Paper Co.,
                                                       :
                 Respondents.
                                                       :


                                              DECISION

                                  Rendered on November 12, 2015


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

                 Michael DeWine, Attorney General, and Natalie J. Tackett,
                 for respondent Industrial Commission of Ohio.

                                            IN MANDAMUS

LUPER SCHUSTER, J.
        {¶ 1} Relator Paul C. Hedges has filed an original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission to vacate the order
denying his application for permanent total disability, and to find he is entitled to
compensation.
        {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
court deny relator's request for a writ of mandamus. No objections have been filed to that
decision.
No. 15AP-49                                                                              2


      {¶ 3} Finding no error of law or other defect on the face of the magistrate's
decision, this court adopts the magistrate's decision as our own, including the findings of
fact and conclusions of law. In accordance with the magistrate's decision, we deny
relator's requested writ of mandamus.
                                                              Writ of mandamus denied.

                           SADLER and HORTON, JJ., concur.
No. 15AP-49                                                                             3


                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State of Ohio ex rel. Paul C. Hedges,    :

              Relator,                       :

v.                                           :                   No. 15AP-49

Industrial Commission of Ohio and            :              (REGULAR CALENDAR)
Sterling Paper Co.,
                                             :
              Respondents.
                                             :



                         MAGISTRATE'S DECISION

                              Rendered on August 18, 2015


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

              Michael DeWine, Attorney General, and Natalie J. Tackett,
              for respondent Industrial Commission of Ohio.


                                     IN MANDAMUS

       {¶ 4} Relator, Paul C. Hedges, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order which denies his application for permanent total
disability ("PTD") compensation, and ordering the commission to find he is entitled to
that compensation.
Findings of Fact:
       {¶ 5} 1. Relator has sustained two work-related injuries during the course of his
employment and his workers' compensation claims have been allowed for the following
conditions:
No. 15AP-49                                                                               4


              Claim #08-876664: Subdural hemorrhage without coma; left
              supraspinatus tear; left rotator cuff tear; substantial
              aggravation of pre-existing acromioclavicular osteoarthritis,
              left; left bicipital tenosynovitis; substantial aggravation of
              pre-existing subacromial impingement, left; left biceps
              tendon tear.

              Claim #11-846273: Bilateral quadriceps rupture; abrasion
              right upper arm; right rotator cuff tendonitis; dysthymic
              disorder; generalized anxiety disorder; substantial
              aggravation of pre-existing right subacromial impingement;
              substantial aggravation of pre-existing right rotator cuff
              partial tear.

       {¶ 6} 2. Relator has undergone four surgeries related to the allowed conditions
in his two claims.
       {¶ 7} 3. On March 14, 2014, relator filed his application for PTD compensation.
At the time, he was 62 years of age, indicated that he had graduated from high school,
and had attended approximately one year of vocational training for electronics. Relator
further indicated he could read, write, and perform basic math, noted he had applied for
Social Security Disability benefits, and had not participated in vocational rehabilitation.
       {¶ 8} 4. Relator's application was supported by the March 2, 2014 report of
Charles J. Kistler, D.O., who examined relator on February 27, 2014, and concluded that
he was permanently and totally disabled, stating:
              It is my medical opinion, based on the history given to me
              and my examination of this patient that these injuries were
              sustained while in the course of his employment in the above
              two claims. It is further my opinion, taking into account only
              those conditions allowed in these claims and with reference
              to the AMA Guidelines to the Evaluation of Permanent
              Impairment, Sixth Edition, that Paul Hedges is permanently
              and totally impaired from sustained remunerative
              employment solely as a result of the injuries suffered in these
              two claims.

       {¶ 9} 5. Donald J. Tosi, Ph.D., examined relator for his allowed psychological
conditions. In his May 1, 2014 report, Dr. Tosi concluded relator had a mild impairment
due to his allowed psychological conditions, determined he had a 12 percent whole
person impairment, and concluded relator would be able to work as follows:
No. 15AP-49                                                                           5


                The Injured Worker is able to work in a normal stress
                environment. Work tasks should be moderate in complexity.
                He has no clinically significant mental limitations resulting
                from the allowed psychological conditions.

      {¶ 10} 6. James J. Sardo, M.D., examined relator for his allowed physical
conditions. In his April 28, 2014 report, Dr. Sardo identified the allowed conditions in
relator's claims, discussed his symptoms, provided his physical findings upon
examination, and concluded relator would be able to perform some sustained
remunerative employment. Specifically, in the discussion portion of his report, Dr.
Sardo stated:
                The injured worker has significant restriction of both
                shoulders. On the left side, he is status post subacromial
                decompression, acromioplasty, debridement of the left
                shoulder biceps tendon, and rotator cuff repair which
                occurred on 06/12/2009. On 07/18/2012, he underwent a
                right shoulder subacromial decompression, distal clavicle
                excision, and rotator cuff debridement. He has completed
                postoperative therapy and is now independent with a home
                exercise program. He is status post bilateral quadriceps
                tendon repair on 09/15/2011. He is currently ambulatory
                without an assistive device. He does have significant
                restriction of his bilateral knee range of motion. Regarding
                the subdural hemorrhage without coma, he appears to have a
                very mild memory deficit; however, there is no significant
                impact on his activities of daily living. It appears he has
                reached maximum medical improvement with regards to the
                allowed conditions in these two claims. He has undergone
                appropriate conservative and surgical care. He does have
                significant physical limitations due to decreased range of
                motion at both shoulders and both knees. He would be able
                to perform job duties at a sedentary level including exerting
                up to 10 pounds of force occasionally and/or a negligible
                amount of force frequently to lift, carry, push, pull, or
                otherwise move objects. He would be able to walk or stand
                for brief periods of time. He would not be able to perform
                any overhead activities with both upper extremities.

(Emphasis added.)

      {¶ 11} Ultimately, Dr. Sardo concluded relator had a 9 percent whole person
impairment for the 2008 claim and an 18 percent whole person impairment for the 2011
No. 15AP-49                                                                             6


claim, which equaled a 25 percent whole person impairment. Dr. Sardo concluded
relator could perform some sedentary work with the further limitation of "[n]o reaching
overhead with either upper extremity."
      {¶ 12} 7. Relator's application for PTD compensation was heard before a staff
hearing officer ("SHO") on October 21, 2014. The SHO relied upon the reports of Drs.
Tosi and Sardo and concluded relator was capable of performing some sustained
remunerative employment, but would be unable to perform any overhead activities with
both upper extremities. Thereafter, the SHO discussed relator's non-disability factors
and concluded that his age was a neutral vocational factor, and his high school
education and prior work history were positive vocational factors.
      {¶ 13} 8. Relator filed a request for reconsideration arguing that Dr. Sardo's
report did not constitute some evidence that relator was capable of performing
sedentary work activity because Dr. Sardo's restriction of no reaching overhead with
both upper extremities limited relator to less than sedentary employment and rendered
his report so internally inconsistent that it could not constitute some evidence
supporting the commission's decision.     Relator cited State ex rel. Lopez v. Indus.
Comm., 69 Ohio St.3d 445 (1994), which held that a medical report that concludes a
claimant is capable of one level of work, but then restricts the claimant to work that is
something less than the meaning of that level of work, does not constitute some
evidence to support the denial of an award of PTD compensation.
      {¶ 14} 9. In an order mailed December 10, 2014, the commission failed to reach
a majority vote when one commissioner recused himself, one voted to grant the request
for reconsideration, and one voted to deny the request for reconsideration. As such, the
SHO's order denying relator's application for PTD compensation remained a final order
of the commission.
      {¶ 15} 10. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
      {¶ 16} Relator's entire argument focuses on his contention that Dr. Sardo's report
does not support the commission's conclusion that he can perform at a sedentary work
level. According to relator, Dr. Sardo's limitation that he cannot perform any overhead
No. 15AP-49                                                                             7


activity with both upper extremities limits him to less than sedentary work and
essentially makes it impossible for him to be employed.
      {¶ 17} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
      {¶ 18} 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).
      {¶ 19} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief
sought and that the commission has a clear legal duty to provide such relief. State ex
rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse
of discretion and mandamus is not appropriate.          State ex rel. Lewis v. Diamond
Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the
weight to be given evidence are clearly within the discretion of the commission as fact
finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
     {¶ 20}   The relevant inquiry in a determination of permanent total disability is
claimant's ability to do any sustained remunerative employment.            State ex rel.
Domjancic v. Indus. Comm., 69 Ohio St.3d 693 (1994). Generally, in making this
determination, the commission must consider not only medical impairments but also
the claimant's age, education, work record and other relevant non-medical factors.
State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's
medical capacity to work is not dispositive if the claimant's non-medical factors
foreclose employability. State ex rel. Gay v. Mihm, 68 Ohio St.3d 315 (1994). The
commission must also specify in its order what evidence has been relied upon and
No. 15AP-49                                                                              8


briefly explain the reasoning for its decision. State ex rel. Noll v. Indus. Comm., 57 Ohio
St.3d 203 (1991).
      {¶ 21} As noted in the findings of fact, the commission concluded that relator was
capable of performing at a sedentary work level. Ohio Adm.Code 4121-3-34(B)(2)(a),
defines the upper limits of sedentary work as follows:
                "Sedentary work" means exerting up to ten pounds of force
                occasionally (occasionally: activity or condition exists up to
                one-third of the time) and/or a negligible amount of force
                frequently (frequently: activity or condition exists from one-
                third to two-thirds of the time) to lift, carry, push, pull, or
                otherwise move objects. Sedentary work involves sitting most
                of the time, but may involve walking or standing for brief
                periods of time. Jobs are sedentary if walking and standing
                are required only occasionally and all other sedentary criteria
                are met.

      {¶ 22} When reading the above definition for sedentary work, it must be
remembered that a job is classified as "sedentary" provided that the job does not require
a person to lift more than ten pounds of force occasionally and/or a negligible amount of
force frequently to lift, carry, push, pull, or otherwise move objects. Not all sedentary
jobs require a person to lift ten pounds of force occasionally; however, a job cannot be
classified as sedentary if it requires one to exert more than ten pounds of force
occasionally.
       {¶ 23} In support of his argument, relator draws this court's attention to two
cases: Lopez and State ex rel. Libecap v. Indus Comm., 83 Ohio St.3d 178 (1998).
       {¶ 24} In Lopez, the commission denied Valentin Lopez's application for PTD
compensation after relying on the report of Dr. Gary I. Katz. In mandamus, Lopez
challenged the commission's reliance on the report of Dr. Katz arguing that it was
equivocal. Ultimately, the Supreme Court of Ohio concluded that, while Dr. Katz's
report was not equivocal, it was so internally inconsistent that it could not constitute
some evidence to support the commission's decision to deny Lopez's application for PTD
compensation. Specifically, the court stated:
                Katz's report, however, while unequivocal, is so internally
                inconsistent that it cannot be "some evidence" supporting
                the commission's decision. Despite "normal" physical
No. 15AP-49                                                                          9


              findings, Katz assessed a high (fifty percent) degree of
              impairment. He then, however, concluded that claimant
              could perform heavy foundry labor. Being unable to **532
              reconcile these seeming contradictions, we find that the
              report is not "some evidence" on which to predicate a denial
              of permanent total disability compensation.

Id. at 449.

       {¶ 25} In Libecap, Betty J. Libecap's claim was allowed for both physical and
psychological conditions. The commission based its decision to deny her application for
PTD compensation on the medical reports of William G. Littlefield, M.D., and
psychologist Giovanni M. Bonds, Ph.D. Dr. Littlefield examined Libecap for her allowed
physical conditions and found a 41 percent impairment based upon the allowed
orthopedic condition. In his report, he stated:
              Dr. Littlefield found a 41 percent impairment rating of the
              whole person based upon the allowed orthopedic condition.
              He reported:

              " * * * The medical and functional limitations are that the
              claimant would have difficulty in occupations requiring
              bending and lifting objects from below the level of the knee
              or any of them involving extreme rotation of the spine or
              performing over head activities. She would not be able to lift
              more than 5 or 10 pounds and would have difficulty in any
              occupation that would involve sitting or standing for more
              than 30 minutes. Frequent breaks and allowing the claimant
              to change positions would be required. Repetitive activities
              would not be tolerated in the upper extremities." (Emphasis
              added.)

Id. at 2.

       {¶ 26} The Supreme Court of Ohio agreed with relator and stated:
              We do not view Dr. Littlefield's limitations as consistent with
              sedentary work as defined in the Ohio Administrative Code
              or with the general definition of "sedentary work" utilized
              before Ohio Adm.Code 4121-3-34(B)(2)(a) became effective.

Id. at 2.
No. 15AP-49                                                                              10


       {¶ 27} In the present case, the commission relied on the report of Dr. Sardo who
opined that relator could perform at a sedentary work level, but was precluded from
performing any overhead work. To the extent that relator seems to assert that Dr.
Sardo's opinion that he cannot perform overhead work with either upper extremity
equates with an inability to use his arms and hands below shoulder level to perform
work activities, such a conclusion would require that the court read Dr. Sardo's report
out of context. Nothing in Dr. Sardo's report limits relator's use of his upper extremities
in any manner other than performing overhead work.
       {¶ 28} Comparing relator's case with the Libecap case, the magistrate specifically
notes that Dr. Littlefield had restricted Libecap indicating that she would not be able to
lift more than five or ten pounds and would have difficultly in any occupation that would
involve "sitting or standing for more than 30 minutes. Frequent breaks and allowing
the claimant to change positions would be required. Repetitive activities would not be
tolerated in the upper extremities." (Emphasis added.) Id. at 2. First, according to the
definition of sedentary work found in the Ohio Administrative Code, sedentary work
specifically involves sitting most of the time. Inasmuch as Dr. Littlefield opined that
Libecap could not sit for more than 30 minutes, that restriction alone did not comport
with the definition of sedentary work. To the extent that Dr. Littlefield indicated that
Libecap could not perform repetitive activities with her upper extremities, as the
magistrate noted above, repetitive activities with one's upper extremities would include
activities that were between the waist and the shoulders. Many sedentary jobs involve
repetitive activities with one's arms, including certain secretarial or administrative jobs,
as well as assembly line work, while none of those jobs would necessarily involve any
overhead activities. As such, the Libecap decision is distinguishable from relator's case.
       {¶ 29} Likewise, in Lopez, Dr. Katz had made normal physical findings, but
assessed a high degree of impairment, and then concluded that Lopez could perform
heavy boundary labor.       Because the court was unable to reconcile the seeming
contradictions, the court found that Dr. Katz's report did not constitute some evidence
that Lopez was not permanently and totally disabled.
       {¶ 30} Here, Dr. Sardo's report does not suffer from contradictions as did the
report of Dr. Katz. Dr. Sardo indicated that relator could exert up to ten pounds of force
No. 15AP-49                                                                               11


occasionally and/or a negligible amount of force frequently to lift, carry, push, pull, or
otherwise move objects; would be able to walk or stand for brief periods of time, but
would not be able to perform any overhead activities with both upper extremities. An
ability to exert up to ten pounds of force occasionally and/or a negligible amount of
force frequently to lift, carry, push, pull, or otherwise move objects falls squarely within
the definition of sedentary employment. Further, the limitation of only being able to
walk or stand for brief periods of time also falls squarely within the definition of
sedentary work where jobs are sedentary if they require sitting most of the time.
Further, as noted previously, an inability to perform overhead work does not remove an
injured worker from being able to perform many sedentary jobs.
       {¶ 31} Finding that the report of Dr. Sardo does constitute some evidence upon
which the commission could and did rely, it is this magistrate's decision that relator has
not demonstrated that the commission abused its discretion when it denied his
application for PTD compensation, and this court should deny relator's request for a
writ of mandamus.




                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA




                              NOTICE TO THE PARTIES

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