[Cite as State ex rel. Logan Clay Prods. Co. v. Indu. Comm., 2015-Ohio-5235.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                  :
Logan Clay Products Co.,
                                                       :
                 Relator,
                                                       :
v.                                                                              No. 14AP-808
                                                       :
Industrial Commission of Ohio and                                         (REGULAR CALENDAR)
Vernon Hettinger,                                      :

                 Respondents.                          :



                                              DECISION

                                   Rendered on December 15, 2015


                 Vorys, Sater, Seymour and Pease LLP, Bradley K. Sinnott
                 and Rosemary D. Welsh, for relator.

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

                 Larrimer and Larrimer, and Thomas L. Reitz, for
                 respondent Vernon Hettinger.

                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

HORTON, J.
        {¶ 1} Relator, Logan Clay Products Co., commenced this original action in
mandamus seeking an order compelling respondent, Industrial Commission of Ohio
("commission"), to vacate its order granting permanent and total disability ("PTD")
compensation to respondent/claimant, Vernon Hettinger.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found that the
No. 14AP-808                                                                                2


report of Dr. James J. Sardo, M.D., upon which the commission exclusively relied,
provided some evidence to support the commission's determination that the allowed
conditions of the industrial claim prohibited all sustained remunerative employment.
Therefore, the magistrate recommended that this court deny relator's request for a writ of
mandamus.
       {¶ 3} Relator has filed the following objections to the magistrate's decision:
              [I.] The Magistrate's Decision approves an award of
              permanent compensation solely on the basis of an equivocal
              medical report that makes no finding of particular physical
              limitations but offers a conclusion of complete medical
              incapacity to work.

              [II.] The basis for the Magistrate's Decision is a misstatement
              of fact, supported by no authority.

              [III.] Even if the recorded subjective history constituted the
              examining physician's own findings, the Sardo report still
              does not describe physical limitations consistent with a
              conclusion of complete medical incapacity to work.

       {¶ 4} Relator's first and third objections contain, in essence, the same arguments
made to and addressed by the magistrate, namely, that Dr. Sardo's report did not support
a conclusion that Mr. Hettinger is incapable of sustained remunerative employment.
Specifically, relator contends that the Sardo report does not specify Mr. Hettinger's
physical limitations, and the very limited findings in the report are insufficient to support
the conclusion that he is incapable of work. Relator asks us to compare the description of
physical limitations to the conclusion at the end of the report to see if there is consistency
between the findings and the conclusion.
       {¶ 5} Our independent reading of the report shows that Dr. Sardo did find
physical limitations. The report supports the ultimate conclusion that Mr. Hettinger is
unable to work. Dr. Sardo's report is not internally inconsistent, nor is it equivocal. As
the magistrate indicated, equivocation occurs when a doctor repudiates an earlier
opinion, renders contradictory or uncertain opinions, or fails to clarify an ambiguous
statement. State ex rel. Eberhardt v. Flexible Corp., 70 Ohio St.3d 649, 657 (1994).
No. 14AP-808                                                                             3


       {¶ 6} Here, Dr. Sardo discussed the relevant medical history, the injury, and the
treatment rendered. Dr. Sardo summarized Mr. Hettinger's current symptoms, and what
Dr. Sardo observed after conducting his own physical examination. The objective findings
from the physical examination are consistent with Mr. Hettinger's subjective complaints
and current symptoms. Mr. Hettinger reported that he is able to walk for approximately
10 minutes, to sit for 10-15 minutes, and to stand for less than 10 minutes. Mr. Hettinger
described his pain and that walking, bending, and twisting aggravate his symptoms. Dr.
Sardo goes on to discuss the impact of the symptoms on Mr. Hettinger's activities,
including the statement that he has significant physical limitations including back and
bilateral lower extremity pain, decreased walking, sitting, and standing tolerance.
       {¶ 7} Dr. Sardo's report is not internally inconsistent, nor is it contradictory,
ambivalent, vague, or confusing.     There is no indication that Dr. Sardo found Mr.
Hettinger to be exaggerating, misleading, or otherwise not credible, and therefore it was
not inconsistent or equivocal for Dr. Sardo to rely on Mr. Hettinger's statements in
assessing his current level of impairment.
       {¶ 8} In the second objection, relator contends the magistrate erred when he
inferred that Dr. Sardo assessed Mr. Hettinger's reported symptoms and limitations and
found them to be credible. As noted above, the subjective complaints and current
symptoms as reported by Mr. Hettinger are consistent with Dr. Sardo's findings from the
physical examination. It was not error for the magistrate to infer that Dr. Sardo found the
claimant to be credible, particularly when Dr. Sardo incorporated some of those
complaints and symptoms into the discussion section of his report.
       {¶ 9} Following review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the facts and applied the appropriate law.         Therefore, we overrule the
objections to the magistrate's decision and adopt the magistrate's decision as our own.
The requested writ of mandamus is denied.
                                                                     Objections overruled;
                                                                writ of mandamus denied.

                      TYACK and LUPER SCHUSTER, JJ., concur.
                              _________________
No. 14AP-808                                                                         4


                                 APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State of Ohio ex rel.                      :
Logan Clay Products Co.,
                                           :
             Relator,
                                           :
v.                                                             No. 14AP-808
                                           :
Industrial Commission of Ohio and                         (REGULAR CALENDAR)
Vernon Hettinger,                          :

             Respondents.                  :




                           MAGISTRATE'S DECISION

                              Rendered on May 12, 2015



             Vorys, Sater, Seymour and Pease LLP, Bradley K. Sinnott
             and Rosemary D. Welsh, for relator.

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

             Larrimer and Larrimer, and Thomas L. Reitz, for
             respondent Vernon Hettinger.


                                    IN MANDAMUS
      {¶ 10} In this original action, relator, Logan Clay Products Co. ("Logan Clay" or
"relator"), requests a writ of mandamus ordering respondent Industrial Commission of
Ohio ("commission") to vacate its order awarding permanent total disability ("PTD")
compensation to respondent Vernon Hettinger, to eliminate the reports of James J.
No. 14AP-808                                                                         5


Sardo, M.D., from further evidentiary consideration, and to re-adjudicate the PTD
application absent reliance upon Dr. Sardo's reports.
Findings of Fact:
       {¶ 11} 1. On February 2, 2001, Vernon Hettinger ("claimant") injured his lower
back while employed as a laborer for Logan Clay. The injury occurred when his feet
slipped on ice.
       {¶ 12} 2. The industrial claim (No. 01-806287) is allowed for: "low back strain;
herniate disc L5-S1; post laminectomy syndrome."
       {¶ 13} 3. On October 4, 2006, claimant underwent low back surgery performed by
James Uselman, M.D.       In his operative report, Dr. Uselman describes the surgical
procedure as "[l]eft L5-S1 microscopic lumbar laminectomy and diskectomy."
       {¶ 14} 4. On December 6, 2011, claimant underwent a surgical procedure
performed by Brian F. Seaman, D.O. In his operative report, Dr. Seaman wrote:
              PREOPERATIVE DIAGNOSIS
              Intractable back pain and left lower extremity neuralgia with
              successful spinal cord stimulator trial.

              ***

              PROCEDURE PERFORMED
              1. Laminectomy of T10 in addition to T11 bilateral.
              2. Insertion of epidural paddle spinal cord stimulator to the
              level of T8.
              3. Electronic programming and interrogation of battery
              analysis.
              4. Subcutaneous implantation of pulse stimulator.

              5. On December 26, 2012, attending physician Stephen Altic, D.O., wrote:
              Mr. Hettinger is a patient of mine and has been under my
              care since 01/20/2009. I have seen him specifically and
              solely because of an industrial accident which occurred
              02/02/2001 which resulted in a herniated L5-S1 disc with
              resultant surgery and the development of post laminectomy
              syndrome.

              ***

              I referred Mr. Hettinger to Dr. Perkins who is a pain
              management PM&R specialist. Dr. Perkins discussed with
No. 14AP-808                                                                          6


             Mr. Hettinger a spinal cord stimulator trial. The patient had
             good success with the trial. It did relieve quite a bit of
             radicular complaints. This gentleman continues to use a
             spinal cord stimulator for which he received a permanent
             implant.

             I have been seeing Mr. Hettinger on a fairly regular basis,
             every 2-3 months, at least since I began seeing him. His last
             evaluation was 12/04/2012. At that time, his lumbar axial
             pain was getting quite a bit worse with some worsening of his
             left leg pain. This is now despite the use of the spinal cord
             stimulator. He is beginning to develop some right lower
             extremity radicular complaints as well.

             On objective examination, throughout his many visits, he has
             impaired function of his lumbar spine with neurologic
             deficits. On my most recent examination, Mr. Hettinger
             displayed painful range of motion in the lumbar spine with
             flexion at 25-30 degrees and extension at 0-10 degrees.
             Straight leg raising was positive bilateral at 35-40 degrees
             and there was diminished two-point discrimination in the
             left lower extremity. Diminished strength was noted in both
             lower extremities. Deep tendon reflexes were +1/4.

             ***

             This gentleman has been involved in heavy labor work all of
             his life and only has a high school degree. Given his MRI
             findings and his progressive clinical problems as I described
             them, there is little likelihood that this gentleman's condition
             will improve and, in fact, it is more likely that it will worsen.
             Therefore, given his sedentary to less than sedentary activity
             level and his vocational history, I believe it is unreasonable
             that Mr. Hettinger would be able to sustain gainful
             remunerative employment. He has a poor prognosis and his
             overall clinical condition is liable to worsen. For this reason,
             I believe that he is permanently and totally disabled from all
             gainful remunerative employment.

      {¶ 15} 6. On July 11, 2013, claimant filed an application for PTD compensation. In
support, claimant submitted the December 26, 2012 report of Dr. Altic.
      {¶ 16} 7. On August 22, 2013, at relator's request, claimant was examined by
Gerald S. Steiman, M.D. In his six-page narrative report dated August 27, 2013, Dr.
Steiman opined:
No. 14AP-808                                                                         7


              Mr. Hettinger's history, medical record review, and physical
              exam provide no evidence which would indicate he is unable
              to perform sustained remunerative employment as a result
              of the allowed conditions within claim 01-806287. Clearly,
              Mr. Hettinger does have an impairment secondary to the
              allowed conditions but the impairment is not work
              prohibitive.

              The allowed conditions do not preclude Mr. Hettinger from
              entering physical or vocational rehabilitation. The physical
              and vocational rehabilitation are not necessary to promote
              his return to some form of sustained remunerative
              employment but would increase the types of sustained
              remunerative employment which are available to him.

              Mr. Hettinger is no longer able to return to his prior job
              activities.

       {¶ 17} 8. On October 4, 2013, at the commission's request, claimant was examined
by Dr. Sardo. In his three-page narrative report, Dr. Sardo states:
              HISTORY OF THE PRESENT CONDITION: The injured
              worker was previously employed at Logan Clay Products as
              the lead man in the grinding room when he slipped on ice
              and injured his back. Treatment included physical therapy at
              Hocking Valley Rehabilitation. He states the therapy made
              his pain worse. He is able to return to work approximately 8
              months later. He also received treatment with Dr. Woo and
              he underwent spinal injections which did not help. On
              10/04/2006 he underwent a left L5-S1 microdiscectomy and
              laminectomy by Dr. Uselman. He states the surgery helped
              for about 6 months. He was able to return to work. He
              reports that while picking up flue rings he felt a snap in his
              back. He followed up with Dr. Woo and underwent physical
              therapy and was prescribed pain medication. He required
              placement of a spinal cord stimulator on December 6, 2011
              by Dr. Seaman at Riverside Hospital. He states the
              stimulator has helped significantly with his pain. He is
              currently following up with Dr. Altic. He sees him only as
              needed. He is currently on social security disability for his
              back. He states there is no further treatment plan.

              CURRENT SYMPTOMS: The pain is localized to the lower
              back with radiation to the left leg and foot. He also has
              radiation to the right with pain down to his right knee. He
              describes a sharp, stabbing sensation in his lower back. He
No. 14AP-808                                                                 8


           describes the leg pain as a hot "knife slicing" sensation. He
           also has burning and numbness in his legs. His pain is worse
           with any movement. Walking, bending, and twisting
           aggravate his symptoms. He obtains some relief if he uses a
           hot shower. He is currently not taking any pain medication
           and primarily uses Tylenol.

           IMPACT ON ACTIVITIES: He reports being able to walk for
           approximately 10 minutes. He is able to sit for 10-15
           minutes. He is only able to stand for less than 10 minutes.
           He tries to avoid housework and yard work because of pain.
           He states it takes time for his self-care activities including
           dressing and bathing. He is unable to hunt. He states he
           sleeps about 3 hours per night. He drives only as necessary.
           His difficult daily activities involve primarily watching TV at
           home. He will let the dog go out to run.

           ***

           PAST SURGICAL HISTORY: Mastoid tumor removed from
           the right ear in 1998. Right hand surgery. Spinal cord
           stimulator placement. Lumbar surgery.

           ***

           REVIEW OF MEDICAL RECORDS: I reviewed all of the
           medical records provided to me by the Industrial
           Commission.

           PHYSICAL EXAMINATION: Height: 5'5", Weight: 135
           pounds. He was able to step up to the examination table
           without any difficulty. He was ambulating without an
           assistive device without any difficulty. He has a well-healed
           scar in the midline of the lumbar spine. He is tender in the
           lumbar paraspinals. Motor strength is 5/5 in both lower
           limbs. Sensation was decreased to pinprick in the left lower
           leg. Reflexes were 2 + at both knees, 2 + at the right ankle,
           absent at the left ankle. No swelling in the extremities.
           Seated straight leg raising was negative bilaterally. Lumbar
           flexion 30 degrees, zero degree of extension.

           DISCUSSION: The injured worker continues to experience
           back and bilateral lower extremity pain despite previous left
           L5-S1 microlaminectomy and microdiscectomy. His pain is
           fairly well-controlled with a spinal cord stimulator and
           Tylenol. He does have restriction of his lumbar range of
No. 14AP-808                                                                      9


             motion and an absent left Achilles reflex on physical
             examination. Previous EMG from December 9, 2010
             revealed a chronic left S1 radiculopathy. He does have
             significant physical limitations including decreased walking,
             sitting, and standing tolerance. He has difficulty with most of
             his household activities. At the current time, it is my medical
             opinion that he has reached maximal medical improvement
             for the allowed conditions in this claim. He has undergone
             appropriate, conservative, and surgical treatment.
             OPINION:

             ***

             In my medical opinion, the injured worker has reached
             maximal medical improvement with regards to the allowed
             conditions in this claim. He failed an initial trial of
             conservative treatment including physical therapy and
             injections. He subsequently underwent lumbar micro-
             discectomy and microlaminectomy. His symptoms persisted
             requiring placement of a spinal cord stimulator. At this
             point, I would not expect any fundamental functional, or
             physiologic change with any further medical treatment.

             ***

             It is my opinion that the combined whole person impairment
             for the allowed conditions in this claim is: 13%.

      {¶ 18} 9. On October 4, 2013, Dr. Sardo completed a form captioned "Physical
Strength Rating." On the form, Dr. Sardo indicated by his mark that "[t]his Injured
Worker is incapable of work."
      {¶ 19} 10. Following a June 24, 2014 hearing, a staff hearing officer ("SHO")
issued an order awarding PTD compensation starting October 14, 2013, the date of Dr.
Sardo's report. The order explains:
             Permanent and total disability compensation is awarded
             from 10/04/2013 for the reason that the medical report from
             Dr. Sardo, dated 10/04/2013, upon which the Staff Hearing
             Officer relies to find permanent total disability, supports
             permanent total disability as of said date.

             ***
No. 14AP-808                                                                           10


              Based upon the report of Dr. Sardo, dated 10/04/2013, it is
              found that the Injured Worker is unable to perform any
              sustained remunerative employment solely as a result of the
              medical impairment caused by the allowed condition.
              Therefore, pursuant to State ex rel. Speelman v. Indus.
              Comm. (1992), 73 Ohio App.3d 757, it is not necessary to
              discuss or analyze the Injured Worker's non-medical
              disability factors.

       {¶ 20} 11. On August 20, 2014, the three-member commission mailed an order
denying relator's request for reconsideration.
       {¶ 21} 12. On October 13, 2014, relator, Logan Clay Products Co., filed this
mandamus action.
Conclusions of Law:
       {¶ 22} The issue is whether the reports of Dr. Sardo, upon which the commission
exclusively relied, provide the some evidence to support the commission's determination
that the allowed conditions of the industrial claim prohibit all sustained remunerative
employment.
       {¶ 23} Declaring that Dr. Sardo's narrative report describes "only minor physical
restriction" or "very modest findings of physical abnormality," relator concludes that the
narrative report is inconsistent with Dr. Sardo's mark on the Physical Strength Rating
indicating claimant "is incapable of work." (Relator's brief, 8-9.)
       {¶ 24} As more fully explained below, the magistrate finds that the reports of Dr.
Sardo provide the some evidence to support the commission's determination that the
industrial injury alone prohibits all sustained remunerative employment.
       {¶ 25} State ex rel. Frigidaire, Inc. v. Indus. Comm., 70 Ohio St.3d 166 (1994) is
an early case adjudicating the question of whether a doctor's report contains sufficient
findings to support the doctor's conclusion that all sustained remunerative employment is
prohibited.
       {¶ 26} In Frigidaire, the commission's PTD award was premised upon a report
from Dr. Elizabeth Reed, stating in its entirety:
              The above patient is totally & permanently disabled, due to
              back injury (Trauma aggravating arthritic changes in lumbar
              & thoracic spine). He is able to walk short distances but is
              unable to do any lifting or work.
No. 14AP-808                                                                            11



                 "He is using some hydrotherapy and taking Motrin at the
                 present time."

                 "He also shows considerable depression & nervousness for
                 which he takes Elavil. This may be related to the head injury
                 & laceration."

Id. at 166-67.
       {¶ 27} Upholding the commission's reliance upon Dr. Reed's report, the court
explains:
                 Frigidaire also alleges a lack of supportive findings in the
                 report. We again disagree. Although skimpy, the report
                 pinpoints the claimant's arthritic condition as the source of
                 his problems. It also indicates that claimant cannot do lifting
                 and is restricted to brief walking, both of which would
                 impact on his ability to work. Given the commission's
                 authority to evaluate evidentiary weight and credibility, its
                 decision to rely on Reed's report is not an abuse of
                 discretion.

Id. at 168.
       {¶ 28} In State ex rel. O'Brien v. Cincinnati Inc., 10th Dist. No. 07AP-825, 2008-
Ohio-2841, this court had occasion to succinctly summarize two prior cases from this
court in which this court articulated the rule to be applied in reviewing doctor's reports
upon which the commission has relied. The O'Brien court states:
                 [T]he commission cannot simply rely on a physician's
                 "bottom line" identification of an exertional category without
                 examining the specific restrictions imposed by the physician
                 in the body of the report. See State ex rel. Owens-Corning
                 Fiberglas Corp. v. Indus. Comm., Franklin App. No. 03AP-
                 684, 2004-Ohio-3841; and State ex rel. Howard v.
                 Millennium Inorganic Chemicals, Franklin App. No.
                 03AP637, 2004-Ohio-6603. In both Owens-Corning and
                 Howard, the doctor indicated that the injured worker could
                 perform at a certain strength level, and yet, the rest of the
                 report indicated greater restrictions on the injured worker
                 that would actually render him incapable of performing the
                 strength level work that the doctor had indicated he could
                 perform. This court held in Owens-Corning and Howard that
                 the commission cannot simply rely upon a determination
                 that an injured worker can perform at a certain strength
No. 14AP-808                                                                             12


                level; rather, the commission must review the doctor's report
                and actually make certain that any physical restrictions the
                doctor listed correspond with an ability to actually perform
                at the exertional level indicated by the doctor.

Id. at ¶ 10.
       {¶ 29} Consistent with O'Brien is the rule that equivocal medical opinions are not
evidence.      State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649, 657 (1994).
Equivocation occurs when a doctor repudiates an earlier opinion, renders contradictory or
uncertain opinions, or fails to clarify an ambiguous statement. Id.
       {¶ 30} Moreover, it has been repeatedly held that a physician's report can be so
internally inconsistent that it cannot be some evidence supporting the commission's
decision. State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445 (1994); State ex rel.
Taylor v. Indus. Comm., 71 Ohio St.3d 582 (1995).
       {¶ 31} However, in mandamus, courts will not second guess the medical expertise
of the doctor whose report is under review. State ex rel. Young v. Indus. Comm., 79 Ohio
St.3d 484 (1997).
       {¶ 32} The evaluation of the weight and credibility of the evidence before it rests
exclusively with the commission. State ex rel. Thomas v. Indus. Comm., 42 Ohio St.3d 31,
33 (1989), citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987).
       {¶ 33} "In general, the court does not ‘second guess' medical opinions from
medical experts and will remove a medical opinion from evidentiary consideration as
having no value only when the report is patently illogical or contradictory * * *." State ex
rel. Certified Oil Corp. v. Mabe, 10th Dist. No. 06AP-835, 2007-Ohio-3877, quoting State
ex rel. Tharp v. Consol. Metal Prods ., 10th Dist. No. 03AP-124, 2003-Ohio-6355, ¶ 67.
       {¶ 34} The magistrate observes that the standard of review emerging from the
above-noted case law is sometimes difficult to apply.
       {¶ 35} Here, relator's argument is initially focused upon a single paragraph from
Dr. Sardo's narrative report captioned, "Physical Examination." That paragraph states:
                Height: 5'5", Weight: 135 pounds. He was able to step up to
                the examination table without any difficulty. He was
                ambulating without an assistive device without any difficulty.
                He has a well-healed scar in the midline of the lumbar spine.
                He is tender in the lumbar paraspinals. Motor strength is 5/5
No. 14AP-808                                                                             13


               in both lower limbs. Sensation was decreased to pinprick in
               the left lower leg. Reflexes were 2 + at both knees, 2 + at the
               right ankle, absent at the left ankle. No swelling in the
               extremities. Seated straight leg raising was negative
               bilaterally. Lumbar flexion 30 degrees, zero degree of
               extension.

               Focusing on the above-quoted paragraph, relator asserts:
               Thus, Dr. Sardo's findings of physical abnormality consisted
               of there being a scar on the lower back, a report of low back
               tenderness, a decreased pinprick sensation of the left lower
               leg, an absence of left ankle reflex and a reduction of lumbar
               range of motion.

(Relator's brief, 3.)
       {¶ 36} Later, in its brief, relator again asserts:
               The doctor's one paragraph of physical examination findings
               is so limited that there is no opportunity to miss any
               abnormal findings he reports. Dr. Sardo finds only the
               presence of a surgical scar on the skin, tenderness to touch in
               the lumbar region, decreased pinprick in the left leg, an
               absent left ankle reflex and a reduced lumbar range of
               motion.

(Relator's brief, 8.)
       {¶ 37} Acknowledging the next paragraph captioned "Discussion," relator
endeavors to minimize any negative impact on its argument by stating that Dr. Sardo
summarizes his findings of abnormality at the following portion of the paragraph:
               He does have restriction of his lumbar range of motion and
               an absent left Achilles reflex on physical examination.
               Previous EMG from December 9, 2010 revealed a chronic
               left S1 radiculopathy.

       {¶ 38} Relator seems to suggest that the remaining portion of the "Discussion"
paragraph fails to provide supportive findings. In actuality, the remaining portion of the
"Discussion" paragraph is key to the issue before this court.
       {¶ 39} At the core of relator's argument is the assertion that none of the claimant's
reported symptoms or limitations on his activities can result in medical findings that
No. 14AP-808                                                                            14


support the conclusion that the allowed conditions alone prohibit sustained remunerative
employment.
       {¶ 40} To be more specific, relator would argue that the two paragraphs captioned
"Current Symptoms" and "Impact on Activities" cannot provide supportive medical
findings even though the contents of those paragraphs are addressed in the "Discussion,"
paragraph.
       {¶ 41} According to relator:
              As the name indicates, the subjective history given by the
              patient is his own set of allegations. In this context, those are
              allegations of disability being made by the permanent total
              compensation        applicant.    Every      permanent      total
              compensation applicant, by definition, perceives himself as
              being unable to work. Thus, when the Commission quotes at
              length, in an attempt to reconcile Dr. Sardo's checkmark
              with the rest of his report, what Hettinger is telling Dr.
              Sardo, or when Hettinger reiterates what Dr. Sardo recorded
              as Hettinger's complaints * * *, nothing is being said about
              Dr. Sardo's findings of Hettinger's disability. Instead, this
              is what Hettinger is saying about Hettinger's disability.
              During the taking of the subjective history, the physician is
              in the role of scrivener, recording what the patient says about
              himself.

(Emphasis sic.) (Relator's reply brief, 3.)
       {¶ 42} The magistrate disagrees with relator's characterization of the doctor's role
in listening to the complaints. The examining doctor who necessarily listens to and
records the complaints is more than a mere scrivener of complaints. It is the doctor's role
to assess the complaints in light of his examination and review of the medical records.
The complaints can play a significant part in the doctor's disability opinion.
       {¶ 43} Here, that Dr. Sardo discusses the complaints regarding pain and physical
restrictions indicates he has determined the complaints to be credible and, thus, worthy of
supporting his disability conclusion.
       {¶ 44} Relator's argument fails to address claimant's pain that is being helped by
the placement of a spinal cord stimulator.
       {¶ 45} It can be noted that there is no mention of the spinal cord stimulator in the
paragraph captioned "Physical Examination." However, the "Discussion" paragraph finds
No. 14AP-808                                                                                15


that "pain is fairly well controlled with a spinal cord stimulator and Tylenol." Certainly,
the absence of any mention of pain or its control by spinal cord stimulator in the "Physical
Examination" paragraph does not automatically eliminate pain as a factor to be
considered in Dr. Sardo's disability conclusion. Clearly, pain can be a factor in a PTD
opinion. State ex rel. Unger v. Indus. Comm., 70 Ohio St.3d 672, 676 (1994).
       {¶ 46} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.


                                               /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).
