[Cite as State ex rel. Tradesman Internatl. v. Indus. Comm., 2014-Ohio-1064.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

[State of Ohio ex rel.]                                :
Tradesman International,
                                                       :
                 Relator,
                                                       :
v.                                                                              No. 13AP-122
                                                       :
Industrial Commission of Ohio                                             (REGULAR CALENDAR)
and Raymond Smith,                                     :

                 Respondents.                          :


                                         D E C I S I O N

                                     Rendered on March 20, 2014


                 Dinsmore & Shohl, LLP, and Michael L. Squillace, for relator.

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

                 Philip J. Fulton Law Office, and Chelsea J. Fulton, for
                 respondent Raymond Smith.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

CONNOR, J.
        {¶ 1}    Relator, Tradesmen International, brings this original action seeking a writ
of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order awarding respondent, Raymond Smith ("claimant"), permanent total
disability ("PTD") compensation and to find that claimant is not entitled to that
compensation.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate, who has now rendered a decision and
No. 13AP-122                                                                                 2


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
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 July 23, 2003. Claimant's industrial claim has been
allowed for the following conditions: low back sprain, right shoulder sprain, cervical
sprain, left wrist sprain, right paracentral disc protusion at L5-S1, chronic pain syndrome,
adjustment disorder with depressed mood, moderate to severe.
       {¶ 4} Claimant filed an application for PTD compensation on August 30, 2011.
Claimant supported the application with the April 26, 2011 report of Oscar B. Depaz, M.D.
Dr. Depaz stated that from a medical standpoint claimant had "significant functional
impairment, and at this time his activity level is restricted to sedentary activities with
maximum lifting of 10 lbs." (Stipulated Record, exhibit No. 1.)("Stip.R."). Dr. Depaz
further stated that claimant should avoid "repetitive bending, stooping, twisting, lifting,
pushing, or pulling" and noted that claimant would need "frequent periods of rest which
at times will require him laying down to relieve his back pain." (Stip.R., exhibit No. 1.)
       {¶ 5} Jaqueline Orlando, Ph.D., conducted an independent psychological
evaluation of claimant for the allowed psychological condition, and issued her report on
March 9, 2012. Dr. Orlando noted that claimant presented feelings of despair, emptiness,
and vulnerability, and determined that claimant's depression was in the severe to extreme
range. Dr. Orlando determined that claimant had reached maximum medical
improvement ("MMI"), and stated that claimant's whole person impairment was 25
percent based solely on the allowed psychological condition. Dr. Orlando also completed
an occupation activity assessment form indicating that claimant was incapable of any and
all employment based on his chronic adjustment disorder with depressed mood.
       {¶ 6} Timothy J. McCormick, D.O., conducted an independent medical evaluation
of claimant on March 16, 2012. Dr. McCormick determined that claimant had reached
MMI as to each allowed medical condition, and assessed a 24 percent whole person
No. 13AP-122                                                                           3


impairment. Dr. McCormick completed a physical strength rating form indicating that
claimant was incapable of working based solely on the allowed conditions.
       {¶ 7} The application came before a staff hearing officer ("SHO") for a hearing on
December 13, 2012. The SHO relied on the medical reports of Drs. Depaz, Orlando, and
McCormick to conclude that claimant was unable to perform any sustained remunerative
employment solely as a result of the allowed conditions. The SHO stated that the PTD
compensation was awarded from April 26, 2011 onward, "for the reason that this is the
date of Dr. Depaz's report submitted in support of the application." (Stip.R., exhibit No.
16.)
       {¶ 8} The magistrate recommended that this court deny the requested writ of
mandamus. Specifically, the magistrate determined that the reports of Drs. Orlando and
McCormick were some evidence on which the commission could rely to award PTD
compensation, that Dr. Depaz's report was some evidence which the commission could
rely on to support the start date for the award, and that claimant's failure to pursue
vocational rehabilitation was immaterial. Relator presents the following objections to the
magistrate's decision:
              I. The Magistrate Erred by Not Finding That the Reports of
              Drs. Orlando and McCormick were Equivocal and Internally
              Inconsistent.

              II. The Magistrate Erred When She Found That Dr. Depaz's
              Report Was Some Evidence to Support that Start Date of
              Respondent's Award Because Dr. Depaz Did Not Find That
              Respondent was Permanently and Totally Disabled as the Sole
              Result of His Medical Impairment.

              III. The Magistrate Erred by Finding that Respondent Had no
              Obligation to Pursue Vocational Rehabilitation.

       {¶ 9} 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 &
No. 13AP-122                                                                              4


Firemen's Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting
State ex rel. Consol. Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear legal
right exists where the [commission] abuses its discretion by entering an order which is
not supported by 'some evidence.' " Id.
       {¶ 10} 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. Eacle 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).
       {¶ 11} The relevant inquiry in a determination of PTD is the claimant's ability to do
any sustained remunerative employment. State ex rel. Domjancic v. Indus. Comm., 69
Ohio St.3d 693 (1994); Ohio Adm.Code 4121-3-34(B)(1). 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).
       {¶ 12} In its first objection, relator asserts that the magistrate erred by not finding
that the respective reports from Drs. Orlando and McCormick were equivocal and
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).
       {¶ 13} Relator contends that the reports of Drs. Orlando and McCormick are
equivocal because they each assess a 25 percent whole person impairment but, despite
that relatively low impairment rating, conclude that claimant is permanently and totally
disabled. The magistrate, however, correctly noted that a doctor's percentage of
impairment rating does not preclude a doctor from rendering an opinion that the
claimant is incapable of sustained remunerative employment. See State ex rel.
Schottenstein Stores Corp. v. Indus. Comm., 10th Dist. No. 07AP-1066, 2009-Ohio-2142;
State ex rel. Ohio State Univ. v. Indus. Comm., 10th Dist. No. 11AP-525, 2012-Ohio-3917,
No. 13AP-122                                                                             5


¶ 8 (noting that "[p]ursuant to Schottenstein, Dr. Writesel's 17 percent impairment rating
is not inconsistent with his conclusion that claimant is incapable of sustained
remunerative employment"); State ex rel. S. Rosenthal Co., Inc. v. Indus. Comm., 10th
Dist. No. 03AP-113, 2004-Ohio-549, ¶ 27 (noting that the "Ohio Supreme Court has
stated that it would be error for the commission to draw its conclusion with regard to PTD
compensation on the basis of percentages alone, without regard to a claimant's actual
physical restrictions"). We have independently reviewed the reports issued by Drs.
Orlando and McCormick and do not find either doctor's report equivocal or internally
inconsistent.
       {¶ 14} Relator also asserts that the magistrate erred by refusing to rely on State ex
rel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, 2011-Ohio-530 to reject the reports of
Drs. Orlando and McCormick. The magistrate correctly determined that relator's reliance
on Johnson was misplaced, as the issue in Johnson was whether the claimant had
sustained a total loss of use of his right hand. The standard for determining permanent
partial disability resulting from loss of use differs from the standard used to determine
whether an individual is permanently and totally disabled. See State ex rel. Kroger Co. v.
Wedge, 10th Dist. No. 11AP-631, 2012-Ohio-4073, ¶ 25 (noting that the relator therein,
relying on Johnson, suggested "that this court should treat PTD cases in the same manner
as loss of use cases; however, the two are not synonymous"). Based on the foregoing,
relator's first objection to the magistrate's decision is overruled.
       {¶ 15} Relator's second objection asserts that the magistrate erred by finding that
Dr. Depaz's report was some evidence to support the April 26, 2011 start date for
claimant's PTD compensation. Some evidence upon which the commission relied to
award PTD must also support the PTD start date. State ex rel. Marlow v. Indus. Comm.,
10th Dist. No. 05AP-970, 2007-Ohio-1464, ¶ 12. Here, the commission expressly relied on
Dr. Depaz's report when it granted claimant's PTD application.
       {¶ 16} Relator asserts that, because Dr. Depaz opined that relator could perform
sedentary work, Dr. Depaz did not find relator permanently and totally disabled solely as
a result of medical impairment. Accordingly, relator contends that Dr. Depaz's report
could not constitute some evidence to support the start date for PTD compensation.
However, " 'where a physician places the claimant generally in the sedentary category but
No. 13AP-122                                                                              6


has set forth functional capacities so limited that no sedentary work is really feasible * * *
then the commission does not have discretion to conclude based on that report that the
claimant can perform sustained remunerative work of a sedentary nature.' " State ex rel.
Owens Corning Fiberglass v. Indus. Comm., 10th Dist. No. 03AP-684, 2004-Ohio-3841,
¶ 56, quoting State ex rel. Libecap v. Indus. Comm., 10th Dist. No. 96APD01-29 (Sept. 5,
1996). Here, Dr. Depaz stated that claimant was restricted to sedentary activities, but also
found that claimant would need to lie down frequently to relieve his back pain. Dr. Depaz
specifically found that claimant would "have significant difficulty maintaining a regular
schedule, and at times, he will need periods of continuous rest to control exacerbations of
his back pain." (Stip.R., Exhibit 1.)
       {¶ 17} "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). Dr.
Depaz found that claimant could not sit most of the time, as claimant would need to lie
down frequently to relieve his back pain. Although Dr. Depaz stated that claimant could
perform sedentary work, the restrictions outlined in Dr. Depaz's report were so narrow as
to preclude sustained remunerative employment. See State ex rel. Clevite Elastomers v.
Torok, 10th Dist. No. 02AP-116, 2002-Ohio-4770, ¶ 20, citing Libecap. As such, Dr.
Depaz's April 26, 2011 report was some evidence to support the start date for the PTD
compensation. Relator's second objection to the magistrate's decision is overruled.
       {¶ 18} Relator's third objection asserts that the magistrate erred by finding that
claimant did not have an obligation to pursue vocational rehabilitation before claimant
could be entitled to PTD compensation. Although PTD benefits "may never be denied
solely on the basis of medical evidence without consideration of Stephenson factors * * *
there are some situations where an award of such benefits may properly be based on
medical factors alone." (Emphasis sic.) State ex rel. Galion Mfg. Div., Dresser Industries,
Inc. v. Haygood, 60 Ohio St.3d 38, 40 (1991). Where, as here, medical factors alone
preclude sustained remunerative employment, there is no practical purpose for the
commission to consider the nonmedical factors, "since nonmedical factors will not render
the claimant any more or less physically able to work." Id. The medical evidence indicated
No. 13AP-122                                                                           7


that claimant was PTD based solely on the allowed medical conditions. Accordingly, a
consideration of the nonmedical factors, including whether claimant had or should have
pursued vocational rehabilitation, was unnecessary. Relator's third objection to the
magistrate's decision is overruled.
       {¶ 19} 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
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.
                           BROWN and O'GRADY, JJ., concur.
                              _________________
No. 13AP-122                                                                        8


                                   APPENDIX
                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

[State of Ohio ex rel.]
Tradesmen International,                     :
                                                                  No. 13AP-122
             Relator,                        :
                                                            (REGULAR CALENDAR)
v.                                           :

Industrial Commission of                     :
Ohio and Raymond Smith,
                                             :
             Respondents.
                                             :



                         MAGISTRATE'S DECISION

                              Rendered on August 14, 2013


             Dinsmore & Shohl LLP, and Michael L. Squillace, for relator.

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

             Philip J. Fulton Law Office, and Chelsea J. Fulton, for
             respondent Raymond Smith.


                                    IN MANDAMUS

      {¶ 20} Relator, Tradesmen International, has filed this original action requesting
that this court issue a writ of mandamus ordering respondent Industrial Commission of
Ohio ("commission"), to vacate its order which awarded permanent total disability
("PTD") compensation to respondent Raymond Smith ("claimant") and ordering the
commission to find that claimant is not entitled to that compensation.
Findings of Fact:
No. 13AP-122                                                                          9


       {¶ 21} 1. Claimant sustained a work-related injury on July 23, 2003 and his
workers' compensation claim has been allowed for the following conditions:
              LOW BACK SPRAIN; RIGHT SHOULDER SPRAIN;
              CERVICAL SPRAIN; LEFT WRIST SPRAIN; RIGHT
              PARACENTRAL DISC PROTRUSION AT L5-S1; CHRONIC
              PAIN SYNDROME; ADJUSTMENT DISORDER WITH
              DEPRESSED MOOD, MODERATE TO SEVERE.

       {¶ 22} 2. Claimant's claim has specifically been disallowed for the following
conditions:
              RADICULOPATHY/RADICULITIS AT L5; RIGHT FOOT
              DROP; SURGICAL FIBROSIS AT THE S1 NERVE ROOT;
              RUPTURED L4-5 DISC.

       {¶ 23} 3. Claimant has not worked since he was injured.
       {¶ 24} 4. In September 2005, claimant began receiving Social Security Disability
benefits.
       {¶ 25} 5. Approximately one year after the accident, claimant underwent surgery
consisting of a laminectomy performed at L5-S1. According to claimant, he did not
receive much benefit from the surgery.
       {¶ 26} 6. Claimant was examined by Eduardo A. Sanchez, M.D., P.A., for his
allowed psychological condition. In his February 10, 2006 report, Dr. Sanchez noted that
claimant presented with significant depressive symptomology that would require the use
of antidepressants.   Dr. Sanchez did not believe claimant's allowed psychological
condition had reached maximum medical improvement ("MMI"), and believed that
claimant was capable of functioning in a job situation.      According to Dr. Sanchez,
claimant's limitations were due to the pain syndrome and physical consequences,
including the use of opiates and other medication necessary to treat his pain and
depression.
       {¶ 27} 7. Claimant was also examined by Howard B. Weiss, D.O., P.A., who offered
an opinion concerning claimant's allowed physical conditions. In his April 4, 2007 report,
Dr. Weiss identified the medical records which he reviewed, provided his physical
findings upon examination, and concluded that it was unlikely that claimant would be
No. 13AP-122                                                                       10


able to return to work. Dr. Weiss recommended that a functional capacity evaluation be
performed if claimant's work status needed to be specifically addressed.
      {¶ 28} 8. On August 29, 2011, claimant filed his application for PTD
compensation.
      {¶ 29} 9. In support of his application, claimant submitted the April 26, 2011
report of his treating physician Oscar B. Depaz, M.D. Dr. Depaz addressed claimant's
physical condition and opined that he would not be able to maintain any type of regular
work schedule, stating:
             From the medical standpoint however, it is my opinion that
             Mr. Smith has significant functional impairment, and at this
             time his activity level is restricted to sedentary activities with
             maximum lifting of 10 lbs. He should avoid repetitive
             bending, stooping, twisting, lifting, pushing, or pulling. Mr.
             Smith will need frequent periods of rest which at times will
             require him laying down to relieve his back pain. He will
             have significant difficulty maintaining a regular schedule,
             and at times, he will need periods of continuous rest to
             control exacerbations of his back pain. Therefore, he will not
             be able to maintain any type of regular working schedule.

      {¶ 30} 10. Claimant was referred to Umesh M. Mhatre, M.D., P.A., for a
psychiatric evaluation.   In his November 16, 2011 report, Dr. Mhatre opined that
claimant's psychiatric condition was not severe enough, in itself, to keep him from
working. In Dr. Mhatre's opinion, claimant's primary reason for not working resulted
from his physical impairment and not his psychological impairment.
      {¶ 31} 11. Claimant was also examined by Gerald A. Mastaw, M.D. In his January
23, 2012 report, Dr. Mastaw identified the medical records which he reviewed, provided
his physical findings upon examination and concluded that claimant's injury did not
preclude him from performing at a sedentary-work level. He did however indicate that
claimant needed to continue with pain management.
      {¶ 32} 12. An independent psychological evaluation was conducted by Jacqueline
Orlando, Ph.D. In her March 9, 2012 report, Dr. Orlando noted that, according to the
Zung Depression Scale, claimant's depression measured severe to extreme. She assessed
a 25 percent whole person impairment and opined that claimant was incapable of
performing any and all employment.
No. 13AP-122                                                                           11


       {¶ 33} 13. An independent medical evaluation was performed by Timothy J.
McCormick, D.O. In his March 16, 2012 report, Dr. McCormick identified the allowed
conditions in the claim, discussed the history of claimant's injury, noted his physical
findings upon examination, concluded that claimant's allowed physical conditions had
reached MMI, and he assessed a 24 percent whole person impairment and concluded that
claimant was not capable of working.
       {¶ 34} 14. Dr. McCormick prepared an addendum dated April 12, 2012 wherein he
explained:
              In my report of March 16, 2012, I marked on the Physical
              Strength Rating form "This injured worker is incapable of
              work."

              My opinions were based on the history of the injury in 2003,
              surgery in 2004, and no substantial improvement or change
              over time. He is also taking narcotics of Oxycontin and
              Roxicodone on a regular basis.

              On examination, he was having trouble ambulating,
              changing position from sitting to standing, and was using a
              cane for support. Because of his difficulties moving about, I
              did not have him bend or stoop. He also had physical
              findings consistent with radiculopathy including sensory
              abnormalities and weakness in the right leg. There were no
              inconsistencies during my examination or during the time I
              spent with him.

              Based on these factors it was my opinion that he is not
              capable of work.

       {¶ 35} 15. Stephen Phillips, C.R.C., CDMS, prepared an employability assessment
dated June 26, 2012. Ultimately, Mr. Phillips noted that claimant's work history was
limited to work as a pipe fitter, a heavy strength skilled job, noted that his injury had
drastically changed his personality and physical abilities, that there was no evidence that
his education provided for direct entry into skilled work, that there were no jobs existing
in significant numbers which he was able to perform, and that, even if he could perform at
a sedentary level, he had no transferable skills to seek other employment. Mr. Phillips
also noted that claimant did not have the capacity to perform writing or business
correspondence or perform complex decision making, had marked limitations in his
No. 13AP-122                                                                              12


ability to do complex tasks and participate in normal work routines, that his psychological
condition precluded him from being able to attend and concentrate or be productive
enough to complete a normal work routine. Mr. Phillips noted that if claimant was able to
work, he would be limited to unskilled sedentary or below sedentary employment mostly
composed of clerical and assembly/production work.            Mr. Phillips concluded that
claimant was a very unlikely candidate for any sustained remunerative employment.
        {¶ 36} 16. The record also contains the July 5, 2012 employability assessment
prepared by J. Kilbane M.Ed., C.R.C., who opined that claimant did have transferable
skills and, after noting that claimant had not attempted vocational rehabilitation services,
recommended that he should participate in a work adjustment program which would
allow him to build up his physical and psychological endurance in a work-simulated
environment. Mr. Kilbane ultimately determined that claimant was capable of sustained
remunerative employment, stating:
               His reported activity level and the opinions of Dr. Mastaw,
               Dr. Mhatre, and Dr. Sanchez support that Mr. Smith is
               capable of sedentary work activity. He is capable of
               participating in vocational rehabilitation services which will
               prepare for re-entry into the labor market. His age is not a
               work-prohibitive factor. It is my opinion that Mr. Smith is
               capable of sustained remunerative employment based on the
               allowed conditions of the claim, his physical capabilities, age,
               education, work history and skills.

        {¶ 37} 17. Claimant's application for PTD compensation was heard before a staff
hearing officer ("SHO") on December 13, 2012. The SHO relied on the medical reports of
Drs. Depaz, McCormick and Orlando and found that claimant was not able to perform any
sustained remunerative employment solely as a result of a medical impairment caused by
his allowed conditions. The SHO used the April 26, 2011 report of Dr. Depaz as the start
date.
        {¶ 38} 18. Thereafter, relator filed the instant mandamus action in this court.
        Conclusions of Law:
        {¶ 39} Relator asserts that the commission abused its discretion: (1) when it
granted claimant PTD compensation because the reports of Drs. Orlando and McCormick
are equivocal pursuant to State ex rel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, 2011-
No. 13AP-122                                                                           13


Ohio-530; (2) by relying on the report of Dr. Depaz as the start date for claimant's award;
and (3) by not considering claimant's failure to attempt vocational rehabilitation.
       {¶ 40} The magistrate finds that the commission did not abuse its discretion
because: (1) the reports of Drs. Orlando and McCormick do constitute some evidence
upon which the commission could rely; (2) Dr. Depaz's report does constitute some
evidence upon which the commission could rely as the start date for the award; and (3)
the commission was not required to deny claimant PTD compensation because he did not
pursue vocational rehabilitation.
       {¶ 41} 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).
       {¶ 42} 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 briefly explain the reasoning for its decision.
State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991).
No. 13AP-122                                                                        14


       {¶ 43} Relator asserts that the reports of Drs. Orlando and McCormick do not
constitute some evidence upon which the commission could rely to find that claimant was
entitled to an award of PTD compensation because those reports are equivocal. Relator
asserts that a 25 percent impairment means that claimant retains 75 percent of function
and cannot be permanently and totally disabled.
       {¶ 44} Relator acknowledges that this court has rejected this argument on more
than one occasion. For example, in State ex rel. Schottenstein Stores Corp. v. Indus.
Comm., 10th Dist. No. 07AP-1066, 2009-Ohio-2142, the employer challenged Dr.
Stewart's report on several grounds. One challenge concerned the fact that Dr. Stewart's
15 percent impairment rating was low and could not constitute some evidence upon which
the commission could rely to award PTD compensation to the claimant, Haskell Hysell.
In adopting the decision of its magistrate, this court stated:
              Analysis begins with the observation that in the caselaw, the
              Supreme Court of Ohio has, on occasion, characterized an
              impairment rating in its discussion of medical reports at
              issue in a mandamus action involving workers'
              compensation. For example, in State ex rel. Beiber v. Metco
              Welding Co. (1996), 77 Ohio St.3d 1, 3, 670 N.E.2d 463, the
              court states:

                     We have similar difficulty with the commission's
                     characterization of a fifty-nine percent impairment as
                     being "low to moderate." We note that in State ex rel.
                     Lopez v. Indus. Comm. (1994), 69 Ohio St.3d 445,
                     449, 633 N.E.2d 528, 531, we viewed a fifty percent
                     impairment as high. * * *

              In State ex rel. Domjancic v. Indus. Comm. (1994), 69 Ohio
              St.3d 693, 635 N.E.2d 372, the court refused to grant a full
              writ of mandamus pursuant to State ex rel. Gay v. Mihm
              (1994), 68 Ohio St.3d 315, 626 N.E.2d 666, following the
              court's determination that the commission's order denying
              PTD compensation failed to comply with State ex rel. Noll v.
              Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245.
              The Domjancic court instead granted a limited writ,
              explaining:

                     * * * Generally, in cases where Gay relief has been
                     recommended, the commission's order has coupled
                     vocationally unfavorable evidence with medical
No. 13AP-122                                                                  15


                    evidence that assessed a relatively high degree of
                    physical impairment. This case does not fit that
                    profile. * * *

             Id. at 697, 567 N.E.2d 245.

             In Domjancic, the commission had relied upon the medical
             report of commission specialist Dr. Joseph I. Gonzalez who
             assessed a "16% permanent partial impairment of the whole
             person for the allowed conditions recognized in this claim."
             Id. at 693, 567 N.E.2d 245.

             Presumably, the Domjancic court viewed a 16 percent
             permanent partial impairment as not being a "relatively high
             degree of physical impairment." Id. at 697, 567 N.E.2d 245.

             Notwithstanding that cases can be found in which the courts
             have characterized an impairment rating, relator cites to no
             case that holds that a doctor's impairment rating for the
             allowed conditions precludes him or her from rendering an
             opinion that the claimant is incapable of sustained
             remunerative employment. The lack of a direct correlation
             between a doctor's impairment rating and the claimant's
             ability to perform sustained remunerative employment is
             recognized at Ohio Adm.Code 4121-3-34(D)(3)(f):

                    The adjudicator shall not consider the injured
                    worker's percentage of permanent partial impairment
                    as the sole basis for adjudicating an application for
                    permanent and total disability.

             Moreover, relator's suggestion that Dr. Stewart's 15 percent
             impairment rating is low fails to recognize that, with respect
             to claimant's chronic pain, Dr. Stewart cautioned "[t]here is
             no other criteria in the Guides for additional impairment
             beyond this 15%" for the allowed conditions of the claim.
             Thus, the 15 percent rating does not include the chronic pain.

             In short, there is no inconsistency as a matter of law between
             Dr. Stewart's narrative evaluation of the allowed conditions
             and his conclusion on the physical strength rating form that
             "[t]his injured worker is not capable of physical work
             activity."
Schottenstein Stores at ¶ 59-65.
No. 13AP-122                                                                                    16


       {¶ 45} Specifically, relator asserts that, from a psychological and physical
standpoint respectively, findings of 25 percent impairment cannot constitute an inability
to perform any sustained remunerative employment. Drs. Orlando and McCormick each
found a 25 percent whole person impairment and yet each ultimately concluded that
claimant was not able to perform any sustained remunerative employment due solely to
the allowed conditions they considered.1
       {¶ 46} The magistrate finds that this court's decision in Schottenstein Stores
supports the commission's order here. Relator may argue that the Schottenstein Stores
case is not on point, because in that case, there was extensive discussion that Hysell
suffered chronic pain syndrome. However, the magistrate notes that there is evidence in
this case that claimant has a significant amount of chronic pain in his lower back that
radiates to his legs. In finding that he was permanently and totally disabled, Dr. Writesel
specifically noted that claimant had "persistent back pain symptoms that preclude his
ability to perform any duties in a sustained functional status." Pain can support a court
finding of PTD. As in Schottenstein Stores, the magistrate would deny relator's request
for a writ of mandamus.
       {¶ 47} To the extent that relator relies on Kroger Co., the argument is not
persuasive. Kroger involved an award of permanent partial disability due to the alleged
loss of use of Dan C. Johnson's right hand.            This court found that Dr. Renneker's
assessment of a 27 percent hand impairment was inconsistent with her conclusion that
Johnson had lost the total use of his hand. (Johnson retained 73 percent of his hand's use
and was not a total loss.) The standard applied in determining loss of use issues differs
significantly from the standard applied in determining whether an injured worker is
permanently totally disabled. See also State ex rel. Kroger Co. v. Wedge, 10th Dist. No.
11AP-631, 2012-Ohio-4073, wherein this court specifically addressed and rejected this
argument.
       {¶ 48} As such, relator's contention that the reports of Drs. Orlando and
McCormick do not constitute some evidence upon which the commission could rely
because they only assess a 25 percent whole person impairment is rejected.

1Dr. Orlando found a 25 percent psychological impairment and Dr. McCormick found a 24 percent
physical impairment.
No. 13AP-122                                                                             17


        {¶ 49} Relator also contends that the report of Dr. Depaz does not constitute some
evidence upon which the commission could rely as the start date for the award. Relator
contends that Dr. Depaz indicated that claimant was able to perform sedentary work, and,
as such, the date of his report cannot be used as the start date.
        {¶ 50} Relator cites to this court's decision in State ex rel. Phillips v. Complete
Carpentry, Inc., 10th Dist. No. 09AP-29, 2009-Ohio-5546. Richard Phillips sustained a
work-related injury and received temporary total disability ("TTD") compensation until
March 21, 2007 when his allowed conditions were found to have reached MMI. Phillips
filed his application for PTD compensation on July 7, 2008. The commission granted
TTD compensation with an effective start date of June 14, 2007 based on the office notes
and MEDCO-14 completed by Paige S. Gutheil, D.O., wherein Dr. Gutheil opined that
Phillips was permanently and totally disabled from all sustained remunerative
employment due to the allowed conditions in the claim.
        {¶ 51} Phillips filed a request for reconsideration regarding the start date of his
PTD compensation seeking a start date of March 21, 2007, when his TTD compensation
ended. The commission denied Phillips' request noting that the March 22, 2007 office
note of Dr. Gutheil indicated that Phillips would look into a functional capacity evaluation
and vocational rehabilitation to determine the extent of his disability.
        {¶ 52} Phillips filed a mandamus action in this court arguing that the commission
abused its discretion by not selecting the earlier start date. This court found that the
commission did not abuse its discretion and rejected Phillips argument, stating:
               The medical evidence clearly was equivocal at best until the
               June 14, 2007 report from the treating physician. The
               doctor's report, up until then, assumed Phillips could do
               sedentary work. Rehabilitation efforts were pursued. Only
               after attempts at rehabilitation were abandoned did the
               doctor report that Phillips was PTD. From a medical
               perspective, the SHO's finding was appropriate.

Id. at ¶ 7.
        {¶ 53} Relator contends that Dr. Depaz's statement in his April 26, 2011 report
suffers from the same defect. For the reasons that follow, the magistrate disagrees.
        {¶ 54} As noted previously, Dr. Depaz stated as follows in his April 26, 2011 report:
No. 13AP-122                                                                          18


              From the medical standpoint however, it is my opinion that
              Mr. Smith has significant functional impairment, and at this
              time his activity level is restricted to sedentary activities with
              maximum lifting of 10 lbs. He should avoid repetitive
              bending, stooping, twisting, lifting, pushing, or pulling. Mr.
              Smith will need frequent periods of rest which at times will
              require him laying down to relieve his back pain. He will
              have significant difficulty maintaining a regular schedule,
              and at time, he will need periods of continuous rest to
              control exacerbations of his back pain. Therefore, he will not
              be able to maintain any type of regular working schedule.

       {¶ 55} Relator contends that Dr. Depaz has opined that claimant can perform
sedentary work activities. If that were the only sentence in the paragraph, the magistrate
would agree with relator's argument. However, Dr. Depaz went on to note that claimant
needed to avoid repetitive bending, stooping, twisting, lifting, pushing, or pulling. He
indicated that claimant would need frequent periods of rest and, at times, he would need
to lay down to relieve his back pain. Dr. Depaz indicated that claimant would have
significant difficulty maintaining a regular schedule because he would need periods of
continuous rest to control exacerbations of his back pain. As such, Dr. Depaz concluded
that claimant would not be able to maintain any type of regular work schedule.
       {¶ 56} The magistrate finds that Dr. Depaz's report differs from the report at issue
in Phillips. Here, Dr. Depaz indicated that claimant's activity level was restricted to
sedentary activities but that, because of his back pain and the necessity of rest, he would
not be able to maintain a regular work schedule. As such, this portion of relator's
argument is not well-taken. The magistrate finds that the report of Dr. Depaz does
support the start date of PTD compensation and the commission did not abuse its
discretion.
       {¶ 57} Relator's final argument is that the commission abused its discretion by
failing to find that claimant's failure to pursue vocational rehabilitation should bar him
from receiving PTD compensation. Relator points to certain medical reports in the record
and argues that those reports demonstrate that claimant could have attempted vocational
rehabilitation. For example, in his February 10, 2006 report, Dr. Sanchez opined that
claimant's allowed psychological condition had not yet reached MMI and did not preclude
him from functioning in a job situation. Dr. Sanchez indicated that claimant's limitations
No. 13AP-122                                                                            19


were due to his back pain and the medications he was taking. Relator also points to the
April 4, 2007 report of Dr. Weiss who concluded that, while it was unlikely claimant
would return to work, a functional capacity evaluation should be performed if his work
status needed to be addressed.      Relator also points to the March 11, 2011 report of
Kenneth G. Rice, Ph.D. and H.E. Cadiz, Ph.D., both licensed psychologists, who opined
that claimant had a 15 percent whole person impairment due to his allowed psychological
condition.
       {¶ 58} The commission and courts can demand accountability of a claimant who,
despite time and medical ability to do so, never tried to further their education or learn
new skills. State ex rel. Bowling v. Natl. Can Corp., 77 Ohio St.3d 148 (1996). Further,
R.C. 4123.58(D)(4) precludes PTD compensation where the employee's inability to work
is a result of the employee's failure to engage "in educational or rehabilitative efforts to
enhance the employee's employability, unless such efforts are determined to be in vain."
       {¶ 59} Contrary to relator's assertion, current case law does not mandate that the
commission deny PTD compensation if the injured worker does not engage in efforts to
retrain. Instead, the statute states that PTD compensation can still be awarded where
there is no participation in vocational rehabilitation if such participation would have been
in vain. The magistrate has reviewed the record. According to the statement of facts
prepared by the commission, the magistrate notes that claimant's claim was originally
allowed for low back sprain, right shoulder, neck, and left wrist strain/sprain in
September 2003. Claimant's claim was additionally allowed for right paracentral disc
protrusion at L5-S1 in April 2004. The claim was additionally allowed for chronic pain
syndrome in March 2006 and the psychological condition, adjustment disorder with
depressed mood, moderate to severe was allowed in May 2006. While it is undisputed
that claimant had back surgery in 2004, the record does not indicate how long claimant
received TTD compensation after the surgery and it is not mentioned in any of the briefs
or medical reports. Further, the record indicates that claimant attempted some type of
physical therapy three times but that, due to his chronic pain, he was not able to continue.
       {¶ 60} Following a review of the stipulation of evidence, the magistrate cannot say
that the commission abused its discretion by not holding claimant's failure to pursue
No. 13AP-122                                                                         20


vocational rehabilitation against him.     Further, there is no requirement that the
commission explain that claimant's lack of participation was excusable.
      {¶ 61} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion by awarding claimant PTD
compensation and this court should deny relator's request for a writ of mandamus.


                                         /S/ MAGISTRATE
                                         STEPHANIE BISCA BROOKS



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