[Cite as State ex rel. Smith v. Thomas/Sysco Food Serv., 2014-Ohio-1641.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Marvin Smith,                    :

                 Relator,                              :

v.                                                     :                    No. 13AP-37

Thomas/Sysco Food Service and                          :                (REGULAR CALENDAR)
Industrial Commission of Ohio,
                                                       :
                 Respondents.
                                                       :


                                         D E C I S I O N

                                      Rendered on April 17, 2014


                 Casper & Casper, and Ronald M. Kabakoff, for relator.

                 Michael DeWine, Attorney General, and Cheryl J. Nester, for
                 respondent Industrial Commission of Ohio.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
CONNOR, J.
         {¶ 1} Relator, Marvin Smith, brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying him permanent total disability ("PTD") compensation, and to
find that he is entitled to that compensation.
         {¶ 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 has now rendered a decision and
recommendation that includes findings of fact and conclusions of law and is appended to
this decision. The magistrate concluded that the commission did not abuse its discretion
and recommended that this court not issue the requested writ of mandamus. Relator has
No. 13AP-37                                                                            2


filed objections to the magistrate's decision, and the matter is now before us for our
independent review.
        {¶ 3} As reflected in the facts given in the magistrate's decision, claimant was
involved in a work-related injury on May 3, 1990. Claimant's industrial claim has been
allowed for the following conditions: lumbar sprain, aggravation of pre-existing
degenerative disc disease, and bulging intervertebral at L5-S1.
        {¶ 4} Relator filed an application for PTD compensation on November 11, 2011. At
the commission's request, Dr. Thomas Forte conducted a medical examination of relator
on April 19, 2012. Dr. Forte concluded that relator was capable of performing sedentary
work.
        {¶ 5} The application came before a staff hearing officer ("SHO") for a hearing on
August 7, 2012. The SHO relied on the medical report of Dr. Forte to conclude that
claimant was able to engage in sustained remunerative employment. Accordingly, the
SHO denied the application for PTD compensation.
        {¶ 6} The magistrate determined that Dr. Forte's narrative report and physical
strength rating form were not equivocal or inconsistent. The magistrate thus concluded
that Dr. Forte's report and physical strength rating form were some evidence which the
commission could rely on to deny relator's application for PTD compensation. Relator
presents the following objections to the magistrate's decision:
              1. The Magistrate erred in finding that Dr. Forte's report was
              internally consistent.

              2. The Magistrate erred in finding that Dr. Forte's report
              constitutes some evidence to support the denial of PTD.

        {¶ 7} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the
objected matters "to ascertain that the magistrate has properly determined the factual
issues and appropriately applied the law." A relator seeking a writ of mandamus must
establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon
respondent to perform the act requested, and (3) that relator has no plain and adequate
remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police &
Firemen's Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting
State ex rel. Consolidated Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear
No. 13AP-37                                                                               3


legal right exists where the [commission] abuses its discretion by entering an order which
is not supported by 'some evidence.' " Id.
        {¶ 8} This court will not determine that the commission abused its discretion
when there is some evidence in the record to support the commission's finding. State ex
rel. Rouch v. Eagle Tool & Mach. Co., 26 Ohio St.3d 197, 198 (1986). The some evidence
standard "reflects the established principle that the commission is in the best position to
determine the weight and credibility of the evidence and disputed facts." State ex rel.
Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing State ex
rel. Pavis v. Gen. Motors Corp., B.O.C. Group, 65 Ohio St.3d 30, 33 (1992).
        {¶ 9} The relevant inquiry in a determination of PTD is the claimant's ability to do
any sustained remunerative employment. State ex rel. Domjacic v. Indus. Comm., 69
Ohio St.3d 693 (1994); Ohio Adm.Code 4121-3-34(B)(1). An individual can engage in
sustained remunerative employment if they can perform sedentary work. Sedentary work
means "exerting up to ten pounds of force occasionally * * * and/or a negligible amount of
force frequently * * * 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." Ohio Adm.Code 4121-3-34(B)(2)(a).
       {¶ 10} In his first objection, relator asserts that the magistrate erred by not finding
that Dr. Forte's report was internally inconsistent. Equivocal or internally inconsistent
medical reports do not constitute some evidence upon which the commission can rely.
State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649 (1994); State ex rel. Lopez v.
Indus. Comm., 69 Ohio St.3d 445 (1994); State ex rel. Paragon v. Indus. Comm., 5 Ohio
St.3d 72 (1983). Equivocation "occurs 'when a doctor repudiates an earlier opinion,
renders contradictory or uncertain opinions, or fails to clarify an ambiguous statement.' "
State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 407, 2011-Ohio-6036, ¶ 15,
quoting Eberhardt at 657.
       {¶ 11} Relator asserts that "Dr. Forte's report clearly states twice that further
restrictions will be listed on the Physical Strength Rating Form," and notes that, if Dr.
Forte "had actually listed restrictions it would have been highly relevant as to whether Mr.
Smith had the capacity to return to work." (Objections to Magistrate's Decision, 5.)
Relator appears to assert that, as Dr. Forte's report indicated that restrictions would be
No. 13AP-37                                                                               4


listed on the physical strength rating form, and the form did not list those restrictions, Dr.
Forte's report is inconsistent.
       {¶ 12} The magistrate concluded that Dr. Forte did set forth limitations on the
physical strength rating form, as Dr. Forte had checked the box indicating that relator was
only capable of performing sedentary work. The physical strength rating form then
provided the Ohio Adm.Code 4121-3-34(B)(2)(a) definition of sedentary work, indicating
that the injured worker can only exert up to ten pounds of force and is restricted to sitting
most of the time, but can walk or stand for brief periods of time.
       {¶ 13} Dr. Forte's report indicates that the sedentary work restrictions are
necessary "based upon [relator's] limited and painful lumbar range of motion, right lower
extremity weakness, and altered sensation." (Stip.R. 46.) Dr. Forte noted that relator
arrived to his appointment "in a wheelchair" and that relator had indicated "that he
utilized a wheelchair when he anticipated anything other than a very short distance
walking." (Stip.R. 46.) Dr. Forte noted that relator was able to walk around the exam
room by using "a cane or by holding onto furniture in the exam room." (Stip.R. 46.) There
is nothing in Dr. Forte's report which contradicts the findings on the physical strength
rating form or which is inconsistent with the limitations contained in the definition of
sedentary work. Compare State ex rel. Ingersoll Rand Co. v. Indus. Comm., 10th Dist.
No. 10AP-254, 2010-Ohio-5362, ¶ 3 (finding a report was internally inconsistent because
the doctor's "statement that claimant was unemployable due to pain and severe neck
limitations was in direct conflict with his earlier statement that claimant could perform
sedentary work"). Accordingly, we find that Dr. Forte's report is not internally
inconsistent. Relator's first objection is overruled.
       {¶ 14} Relator's second objection to the magistrate's decision asserts that Dr.
Forte's report cannot be considered some evidence if it is found to be internally
inconsistent. As we have found that Dr. Forte's report was not internally inconsistent, Dr.
Forte's report was some evidence to support the denial of relator's application for PTD
compensation. Accordingly, relator's second objection is overruled.
       {¶ 15} Following independent review, pursuant to Civ.R. 53, we find the magistrate
has properly determined the pertinent facts and applied the salient law to them.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
No. 13AP-37                                                                         5


and conclusions of law contained therein. In accordance with the magistrate's decision,
we deny the request for a writ of mandamus.
                                                     Objections overruled;writ denied.
                          KLATT and O'GRADY, JJ., concur.
                             _________________
No. 13AP-37                                                                                6


                                      APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel. Marvin Smith,           :

              Relator,                        :
                                                                   No. 13AP-37
v.                                            :
                                                              (REGULAR CALENDAR)
Thomas/Sysco Food Service and                 :
Industrial Commission of Ohio,
                                              :
              Respondents.
                                              :




                         MAGISTRATE'S DECISION

                             Rendered on September 26, 2013


              Casper & Casper, and Ronald M. Kabakoff, for relator.

              Michael DeWine, Attorney General, and Naveen V.
              Ramprasad, for respondent Industrial Commission of Ohio.

                                      IN MANDAMUS
       {¶ 16} In this original action, relator, Marvin Smith, 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:
       {¶ 17} 1. On May 3, 1990, relator sustained an industrial injury while employed as
a truck driver for respondent Thomas/Sysco Food Service, a state-fund employer.
       {¶ 18} 2. The industrial claim (No. 90-36219) is allowed for: "[l]umbar sprain;
aggravation of pre-existing degenerative disc disease; bulging intervertebral at L5-S1."
No. 13AP-37                                                                          7


       {¶ 19} 3. On November 11, 2011, relator filed an application for PTD
compensation.
       {¶ 20} 4. On April 19, 2012, at the commission's request, relator was examined by
Thomas E. Forte, D.O. In his six-page narrative report, Dr. Forte states:
              PHYSICAL EXAMINATION:

              GENERAL: Mr. Smith was a pleasant, cooperative male who
              exhibited some overt pain behaviors, and sat or stood
              through the interview in some apparent distress with the
              need to change/adjust his position intermittently. The
              injured worker was accompanied by his wife who was
              present during the interview and examination. His height
              was 5 foot 10 inches, weight 206 pounds. Blood pressure
              161/85, pulse 80 and regular, respirations 16 and unlabored.
              He and his wife indicated they would check his blood
              pressure at home and communicate with his family physician
              regarding her [sic] blood pressure.

              LUMBAR SPINE: There was a flat lordosis of the lumbar
              spine. Palpation of the lumbar paraspinal muscles elicited
              moderate tenderness diffusely. There was both moderate
              guarding and mild spasm of the paraspinal musculature.
              Palpation of the lumbar spine elicited moderate tenderness
              at L4-sacrum. There were multiple well-healed surgical scars
              associated with lumbar surgeries, including a midline 7.5 cm
              scar and bilateral paralumbar 4 cm scars. There were no
              Waddell's signs present. The Patrick's (FABER) test was
              negative bilaterally[.] Sitting up from lying position was
              accomplished using abdominal muscles with a modified log-
              roll maneuver. Footwear was put on and taken off by his
              wife. There was a level pelvis, without scoliosis, with no
              significant leg length difference. He reported pain with all
              lumbar motions throughout the range of motion.

              Lumbar Spine- Range of motion (in degrees):
              Flexion- true lumbar: 18, sacral flex= 15 [Impairment varies
              w/ scaral ROM]
              Extension- true lumbar: 0, sacral ext= 0 [Possible ROM-
              based impairment, if <23]
              Right side bending: 10 [Possible ROM-based impairment, if
              <23]
              Left side bending: 12 [Possible ROM-based impairment, if
              <23]
No. 13AP-37                                                                     8


              The seated straight leg raising was accomplished to 65
              degrees bilaterally. The lying straight leg raising testing
              resulted in low back and ipsilateral posterior thigh pain at 35
              degrees on the right and low back pain at 40 degrees on the
              left.

              LOWER EXTREMITY NEUROLOGIC: The strength in the
              lower extremities was normal (5 out of 5) throughout the left
              lower extremity, but there was grade 4/5 weakness of right
              foot dorsiflexion and right knee extension, without a foot
              drop. There was no give-way weakness. Lower extremity
              sensation was intact to all modalities for the left lower
              extremity, but there was altered sharp/dull discrimination
              along the posterior aspect of the right thigh, the medial
              aspect of the right calf, the lateral aspect of the right foot,
              and the lateral 3 toes of the right foot. The patellar reflexes
              were 1+ on the right, and 2+ on the left. The ankle reflexes
              were absent on the right, and 1+ on the left. There was no
              atrophy in either of the thighs, but there was 0.7 cm of right
              calf atrophy. There were no observed involuntary
              movements.

              GAIT and STATION: The injured worker arrived in a
              wheelchair and indicated that he utilized a wheelchair when
              he anticipated anything other than very short distance
              walking. The gait and station were antalgic, with the injured
              worker leaning forward at the waist approximately 15
              degrees, and moving about the room holding onto various
              pieces of furniture and/or utilizing his cane. Walking was
              performed only with a cane or by holding onto furniture in
              the exam room. Walking on the heels and toes was not
              tested, due to his right lower extremity weakness and his
              antalgic gait pattern. The Romberg test was not tested.
              Transfer to the exam table was accomplished with moderate
              apparent difficulty.

              DISCUSSION: Marvin Smith has allowed conditions from
              a single claim being evaluated in this report.

              Mr. Smith has already undergone 2 lumbar surgeries,
              physical therapy, various injections, and the medication
              regimen has been optimized. The allowed physical
              conditions in the claims have stabilized to the point that no
              major medical change can be expected, despite any
              continuing medical treatment or rehabilitative programs in
              which the injured worker may participate.
No. 13AP-37                                                                   9



              Based only on the allowed physical conditions evaluated in
              this report and not considering the worker's age, education,
              and work history, the worker's physical limitations are
              outlined in the PHYSICAL STRENGTH RATING FORM
              below. These lifting, standing, running, repetitive motion,
              and sitting limitations are necessary due to the allowed back
              conditions in the claim addressed in this report, and these
              limitations based upon his limited and painful lumbar range
              of motion, right lower extremity weakness, and altered
              sensation.

              OPINION: Based solely on today's history and physical
              examination, review of the records provided, and based only
              on the allowed conditions I have been asked to consider, and
              considering only the physical conditions allowed:

              [One] Has the injured worker reached maximum medical
              improvement (MMI) with regard to each specified allowed
              condition? Briefly describe the rationale for your opinion.

              Yes. Please refer to the narrative DISCUSSION: section
              above. The injured worker is on a stable medication regimen,
              has no pending invasive procedures, and is currently
              receiving supportive medical care for the allowed conditions
              in the claim. Therefore, he has reached maximum medical
              improvement for the allowed conditions in the claim.

              [Two] Based on the American Medical Association's Guides
              to the Evaluation of Permanent Impairment - 5th Edition,
              with reference to the Industrial Commission Medical
              Examination Manual, provide the estimated percentage of
              whole person impairment arising from each allowed
              condition. Please list each condition and whole person
              impairment separately, and then provide the combined
              whole person impairment. If there is no impairment,
              indicate zero percent.

              [A table is omitted.]

              The amount of pain was disproportionate for what is
              expected with the allowed conditions in the claim and their
              associated impairment as calculated above, so 3 percent
              additional impairment for pain was combined into the
              impairment rating.
No. 13AP-37                                                                           10


              It is my opinion that the combined whole person impairment
              for the allowed physical conditions (which I have been asked
              to address in this report) in the claim(s) is the percentage in
              the bottom right corner of the table above.

              [Three] Complete the enclosed Physical Strength Rating
              form. In your narrative report provide a discussion setting
              forth physical limitations resulting from the allowed
              condition(s).

              The PHYSICAL STRENGTH RATING form is completed and
              enclosed. These lifting, standing, running, repetitive motion,
              and sitting limitations are necessary due to the allowed back
              conditions in the claim addressed in this report. Please refer
              to the narrative DISCUSSION: section above regarding the
              rationale for the physical limitations.

(Emphasis sic.)


      {¶ 21} 5. On April 19, 2012, Dr. Forte completed a Physical Strength Rating form.
On the form, Dr. Forte indicated by his mark that relator is capable of "Sedentary Work."
              The form presents the definition of sedentary work:
              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.

              Responding to the preprinted query "FURTHER limitations, if indicated,"
Dr. Forte wrote: "None. Please refer to the narrative DISCUSSION: section above
regarding the rationale for the physical limitations." (Emphasis sic.)
      {¶ 22} 6. Following an August 7, 2012 hearing, a staff hearing officer ("SHO")
issued an order denying relator's application for PTD compensation. The SHO's order
explains:
No. 13AP-37                                                                     11


              It is the order of the Hearing Officer that the Application for
              Permanent Total Disability, filed on 11/11/2011, is denied.

              The Injured Worker suffered the injury recognized in this
              claim on 05/03/1990 when he was employed with the named
              Employer as a transportation driver. On the date of injury,
              he was coming down a ramp with a two-wheeler when he
              slipped. At the time of the injury, the two-wheeler was
              loaded up with product. The claim was recognized initially
              for a sprain condition and was subsequently amended to
              include degenerative disc disease and a bulging disc at L5-S1.
              The Injured Worker underwent a surgical procedure
              consisting of a laminectomy in March of 1992. The Injured
              Worker was able to return to work for a different Employer
              working as a Delivery Driver. The allowed conditions in this
              claim are limited to conditions involving the Injured
              Worker's lumbar spine.

              The Injured Worker continued to work up until 2003. He
              had a subsequent injury involving his shoulder during his
              period of employment with his employer. The Injured
              Worker had a second surgical procedure in this claim on his
              low back area in 2009. That surgical procedure consisted of a
              discectomy and fusion at the L5-S1 area. The Injured Worker
              has not worked since that second surgical procedure.

              The Injured Worker was examined at the request of the
              Industrial Commission by Dr. Thomas Forte on 04/19/2012.
              Dr. Forte performed a physical examination of the Injured
              Worker and reviewed selected medical records for this claim
              file.

              He noted the two surgical procedures as well as the
              subsequent pain management treatment including
              medications, epidural injections, physical therapy. Dr. Forte
              stated that the Injured Worker was in a wheelchair on the
              date of the exam. The Injured Worker told Dr. Forte that he
              used a wheelchair when he was traveling anywhere that
              involved more than a very short distance of walking. He was
              able to get out of the wheelchair and walk using a cane
              during the examination. Dr. Forte stated that the Injured
              Worker has reached maximum medical improvement for the
              recognized conditions in the claim. He stated that the
              Injured Worker was stable in terms of his medication
              regimen and has no pending invasive procedures. Dr. Forte
              indicated that the Injured Worker has a 30% whole person
No. 13AP-37                                                                      12


              impairment as a result of the allowed conditions in the claim.
              On a Physical Strength Rating form attached to his report,
              Dr. Forte stated that the Injured Worker was capable of
              performing sedentary work activity when considering the
              allowed conditions.

              Sedentary work is defined by the Industrial Commission as
              exerting up to ten pounds of force occasionally and/or a
              negligible amount of force frequently 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. Dr. Forte explained that the
              Injured Worker has these restrictions as the result of his
              limited and painful lumbar range of motion, his right lower
              extremity weakness and altered sensation.

              The Hearing Officer finds that the Injured Worker has
              reached maximum medical improvement for the allowed
              conditions in this claim. The Hearing Officer finds that the
              Injured Worker is unable to return to his former position of
              employment as a driver as the result of the allowed low back
              conditions. However, the Hearing Officer finds that the
              Injured Worker retains the residual functional capacity to
              perform sedentary work activity. In making this finding, the
              Hearing Officer relies upon the findings and the opinion
              from Dr. Forte.

              The Injured Worker's attorney argued that Dr. Forte's report
              was defective because he indicated that the Injured Worker's
              physical limitations would be set forth on a Physical Strength
              Rating form and then indicated on the Physical Strength
              Rating form that the narrative report would discuss the
              rationale for the physical limitations. The Injured Worker's
              attorney argued that Dr. Forte's opinion was unclear as to
              the Injured Worker's physical limitations. The Hearing
              Officer rejects this argument and finds that Dr. Forte sets
              forth the physical limitations by indicating that the Injured
              Worker can perform sedentary work activity. On the Physical
              Strength Rating form, he indicated that the narrative report
              would set forth the rationale for the noted physical
              limitations. The body of the report does contain Dr. Forte's
              opinion as to the basis for the sedentary work restrictions.
              The Hearing Officer finds that Dr. Forte's report is not
              defective.
No. 13AP-37                                                                    13



              The Injured Worker is currently 60 years of age. He is a high
              school graduate having completed high school in 1971.
              Following his high school graduation, he attended Laurel
              Oaks truck driver training. He testified at hearing that he
              performed well in this training program. On the application,
              he indicated that he is able to read, write, and perform basic
              math. His previous work history involves approximately 30
              years of work as a truck driver.

              The Hearing Officer finds that the Injured Worker's age of 60
              years is a neutral vocational factor which would be neither a
              barrier nor an asset to him in attempting a return to the
              workforce. An extensive re-training program would not be
              appropriate for him, but he could undergo short-term, on-
              the-job training to learn a new job. The Hearing Officer finds
              that the Injured Worker's education level is a positive
              vocational factor. The Injured Worker is [a] high school
              graduate and did attend vocational training after his high
              school graduation. He is able to read, write, and perform
              basic math. The Hearing Officer finds that the Injured
              Worker has demonstrated the intellectual capacity to obtain
              his degree and pursue further training. The Hearing Officer
              finds that the Injured Worker's previous work history is a
              neutral vocational factor. The Injured Worker demonstrated
              a relatively long work history with several different
              employers. He worked only as a truck driver with varying
              degrees of required physical exertion besides the driving
              requirements. However, the Injured Worker demonstrated
              the determination and resourcefulness to return to work
              with a different employer following this injury and his first
              surgical procedure. The Injured Worker has not worked
              since 2003. However, the Hearing Officer finds that the
              reason he left the workforce in 2003 was not related to this
              industrial injury.

              Based upon the Injured Worker's ability to return to
              sedentary work activity and his education level as a high
              school graduate, the Hearing Officer finds that the Injured
              Worker is capable of performing the duties of sustained
              remunerative employment. Therefore, the Hearing Officer
              finds that the Injured Worker is not permanently and totally
              disabled.

              The Application for Permanent and Total disability, filed on
              11/11/2011 is hereby denied.
No. 13AP-37                                                                           14



                This order is based upon the medical report from Dr. Forte
                dated 04/19/2012.

         {¶ 23} 7. On October 10, 2012, the three-member commission mailed an order
denying relator's request for reconsideration.
         {¶ 24} 8. On January 14, 2013, relator, Marvin Smith, filed this mandamus action.
Conclusions of Law:
         {¶ 25} The sole issue is whether the report of Dr. Forte is some evidence upon
which the commission can rely to support its determination that "residual functional
capacity" is at the sedentary level. Ohio Adm.Code 4121-3-34(B)(4).
         {¶ 26} Finding that Dr. Forte's report provides the some evidence supporting the
commission's determination of residual functional capacity, it is the magistrate's decision
that this court deny relator's request for a writ of mandamus, as more fully explained
below.
         {¶ 27} 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.
         {¶ 28} A medical report can be so internally inconsistent that it cannot be some
evidence upon which the commission can rely. 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).
However, a court will not second-guess a doctor's medical expertise to support a claim of
internal inconsistency. State ex rel. Young v. Indus. Comm., 79 Ohio St.3d 484 (1997).
         {¶ 29} Here, relator argues that Dr. Forte's report is equivocal and internally
inconsistent:
                Dr. Thomas Forte strongly implied that he was going to find
                additional restrictions as well. In the Physical Examination
                Section of his report, he noted problems with muscle spasm,
                restrictions on range of motion, positive straight leg raising,
                decrease in sensation in the right lower extremity, and
                difficulty walking. * * * In the Discussion Portion of his
                report, he mentioned two surgeries, found that the condition
                had stabilized, and then stated that the physical limitations
                would be outlined in the Physical Strength Rating Form
No. 13AP-37                                                                                15


               below. "These lifting, standing, running, repetitive motion,
               and sitting limitations are necessary due to the allowed back
               conditions in the claim addressed in this report, and these
               limitations base upon his limited and painful lumbar range
               of motion, right lower extremity weakness, and altered
               sensation."

               At the end of his report, he stated that the rationale for the
               physical limitations were to be found in the Discussion
               Section of the report. * * * On the Physical Strength Rating
               form, he stated there were no limitations beyond sedentary
               work and the rationale was in the Discussion Section. * * *
               His report was like a circle, it kept going round and round,
               and there was no end to it. It was ambiguous and
               contradictory.

(Relator's brief, at 10-11.)

        {¶ 30} Relator's argument lacks merit. There is no inconsistency or equivocation
between Dr. Forte's narrative report and his completion of the physical strength rating
form.
        {¶ 31} In the "Discussion" portion of the narrative report, Dr. Forte evaluates
impairment and concludes that relator has a 30 percent whole person impairment. In the
"Discussion" portion of the narrative report, Dr. Forte does note that the physical strength
rating form sets forth the limitations due to the allowed conditions of the claim. Those
limitations are set forth in the definition of sedentary work that Dr. Forte marked on the
form.
        {¶ 32} It is true that, in his physical strength rating form, Dr. Forte refers the
reader back to the "Discussion" section of the narrative report.
        {¶ 33} Clearly, the narrative report and the physical strength rating form are
interrelated. It was thus appropriate for Dr. Forte to have each report reference the other.
Regardless of the alleged circularity, there was no equivocation or internal inconsistency.
Again, relator's argument lacks merit.
        {¶ 34} 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
No. 13AP-37                                                                     16



                              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).
