[Cite as State ex rel. Hensley v. Indus. Comm., 2014-Ohio-5560.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State of Ohio ex rel.                              :
Kenneth R. Hensley,
                                                       :
                 Relator,
                                                       :
v.                                                                     No. 13AP-757
                                                       :
Industrial Commission of Ohio and                                  (REGULAR CALENDAR)
Trans Fleet Enterprises Incorporated,                  :

                 Respondents.                          :



                                            D E C I S I O N

                                   Rendered on December 18, 2014


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

                 Michael DeWine, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, Kenneth R. Hensley, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order denying his application for permanent total disability ("PTD")
compensation, and to enter an order granting said compensation.
        {¶ 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: (1)
No. 13AP-757                                                                               2

the report of Dr. Borrillo is some evidence upon which the commission could rely in
determining that relator has the residual functional capacity to perform sedentary work;
(2) relator has waived his right to challenge the report of Dr. Murphy in this action; and
(3) the commission did not abuse its discretion in its consideration of the nonmedical
factors. Therefore, the magistrate has recommended that we deny relator's request for a
writ of mandamus.
         {¶ 3} Relator has filed objections to the magistrate's decision.      In his first
objection, relator contends that the medical restrictions placed on relator by Dr. Borrillo
indicate that relator is not capable of performing any reasonable range of sedentary work.
Because he is restricted from performing above shoulder height tasks, and is unable to
extend his neck to look upward, relator argues he is effectively precluded from performing
all sedentary work. Therefore, relator argues that the commission abused its discretion by
determining that relator was capable of sedentary work. We disagree.
         {¶ 4} As noted by the magistrate, there is no obvious reason why an above
shoulder restriction and the neck extension restriction would preclude relator from
performing all sedentary work as defined by Ohio Adm.Code 4121-3-34(B)(2)(a).
Therefore, we agree with the magistrate that Dr. Borrillo's report is some evidence
supporting the commission's decision. The commission properly exercised its discretion
in determining that relator's restrictions do not prevent him from performing all
sedentary work. Accordingly, we overrule relator's first objection.
         {¶ 5} In his second objection, relator contends that the magistrate erred when he
found that relator waived his right to challenge Dr. Murphy's psychological report. We
agree.
         {¶ 6} Following a stipulated dismissal of the first mandamus action, this matter
was remanded to the commission for a de novo administrative hearing before a different
staff hearing officer. Because the hearing was de novo, there was nothing to prevent
relator from challenging Dr. Murphy's report even if he failed to challenge the report in
the previous administrative proceeding and/or the previous mandamus action. We also
agree that relator challenged Dr. Murphy's report in the current mandamus action,
although he presented very little argument in support of that challenge.            For these
reasons, we find that relator did not waive his challenge to Dr. Murphy's report.
No. 13AP-757                                                                             3

       {¶ 7} Nevertheless, relator has not demonstrated that the commission abused its
discretion when it relied on Dr. Murphy's report in denying relator PTD compensation.
The fact that Dr. Murphy's report conflicts with the psychological reports submitted by
relator does not prevent the commission from relying upon Dr. Murphy's report. Dr.
Murphy's report is still some evidence supporting the commission's decision.
       {¶ 8} Relator also contends that Dr. Murphy's report is internally inconsistent,
and therefore, cannot be relied upon by the commission. We disagree. Dr. Murphy's
report adequately explains why his ultimate assessment of relator's psychological
condition varies from some of the test results. Given this explanation, Dr. Murphy's
report is not internally inconsistent.
       {¶ 9} Although the magistrate erred when he found that relator waived his
challenge to Dr. Murphy's report, that error is of no consequence. Because Dr. Murphy's
report is some evidence upon which the commission could rely, the commission did not
abuse its discretion. Therefore, we sustain relator's second objection, but nevertheless
find that relator is not entitled to a writ of mandamus for the reasons discussed.
       {¶ 10} In his third objection, relator contends that the magistrate erred by failing
to find that the commission abused its discretion in its assessment of the nonmedical
factors affecting relator's employability. We disagree.
       {¶ 11} Relator argues that because he disputed the statement of a vocational
rehabilitation counselor that relator obtained a two-year associate's degree in business
management, the commission abused its discretion when it failed to obtain clarification of
this issue. Apparently, relator admits he attended college, but contends he did not
complete the two-year program. Relator also points to his IC-12 application where he
indicated that the tenth grade is the highest grade he completed. Relator makes no
attempt to explain how he was admitted to a two-year college associate's degree program
if he only completed the tenth grade. Contrary to relator's contention, nothing required
the commission to obtain clarification of this issue. The statement of the vocational
rehabilitation counselor is some evidence supporting the commission's decision even if
relator disputes it. Moreover, relator's educational background is just one of a number of
nonmedical factors evaluated by the commission. Because the statement of the vocational
No. 13AP-757                                                                             4

rehabilitation counselor is some evidence upon which the commission could rely, it did
not abuse its discretion. For this reason, we overrule relator's third objection.
       {¶ 12} Following an independent review of this matter, we find that the magistrate
has properly determined the facts, and we adopt the findings of fact as our own. We
adopt the magistrate's conclusions of law only to the extent specified. In accordance with
the magistrate's decision as modified herein, we deny relator's request for a writ of
mandamus.
                                        Objections overruled in part and sustained in part,
                                                                writ of mandamus denied.

                             TYACK and BROWN, JJ., concur.
No. 13AP-757                                                                           5

                                        APPENDIX

                            IN THE COURT OF APPEALS OF OHIO

                               TENTH APPELLATE DISTRICT

The State of Ohio ex rel.                    :
Kenneth R. Hensley,
                                             :
              Relator,
                                             :
v.                                                            No. 13AP-757
                                             :
Industrial Commission of Ohio and                    (REGULAR CALENDAR)
Trans Fleet Enterprises Incorporated,        :

              Respondents.                   :




                            MAGISTRATE'S DECISION

                                Rendered on August 26, 2014



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

              Michael DeWine, Attorney General, and Kevin J. Reis, for
              respondent Industrial Commission of Ohio.


                                     IN MANDAMUS

       {¶ 13} In this original action, relator, Kenneth R. Hensley, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the June 27, 2013 order of its staff hearing officer ("SHO") that denies his November 15,
2010 application for permanent total disability ("PTD") compensation, and to enter an
order awarding the compensation.
No. 13AP-757                                                                             6

Findings of Fact:
         {¶ 14} 1. On March 6, 2001, relator sustained an industrial injury while employed
as a truck driver for respondent TFE Logistics Group, Inc., a state fund employer. On that
date, the truck relator was driving was struck by another vehicle.
         {¶ 15} 2. The industrial claim (No. 01-333762) is allowed for:
               Sprain of neck; sprain thoracic region; concussion without
               coma; C5-C6 displacement; degenerative disc disease C4-C5,
               C6-C7, cervical; cervical spinal stenosis C4-5 and C6-7;
               depressive disorder; myofascial pain syndrome.

         {¶ 16} 3. On October 27, 2010, treating psychologist Patrick Bentley, Ph.D., D.O.,
wrote:
               Unfortunately Kenneth's major depression is also a major
               depression resulting from multiple medical symptoms.
               Antidepressent medications can do some good in this
               condition but really never have enough of an effect to totally
               cause the depression to lift. This is unfortunate since his
               medical symptoms can probably never be resolved.

               In summary, Kenneth Hensley has a severe depression
               w/anhedonia, amotivation and ideas of chronisity that will
               not go away because they are based on his medical
               conditions. Because of this situation I believe that Kenneth
               Hensley is permanently and totally disabled as a result of his
               depressive disorder. With his depression and it's
               accompanying anhedonia and amotivation, it is unlikely that
               he will ever be able to participate in programs such as
               vocational rehabilitation.

         {¶ 17} 4. On November 15, 2010, relator filed an application for PTD
compensation. In support, relator submitted the October 27, 2010 report of Dr. Bentley.
Relator did not submit any other medical reports.
         {¶ 18} 5. On December 22, 2010, at the commission's request, relator was
examined by psychologist Michael A. Murphy, Ph.D. In his 11-page narrative report dated
December 29, 2010, Dr. Murphy opines that the percentage of permanent impairment is
14 percent due to the depressive disorder. He further opines that the depressive disorder
"is of mild severity" and "does not preclude employment as a truck driver."
         {¶ 19} 6. On December 29, 2010, Dr. Murphy completed a form captioned
"Occupational Activity Assessment[,] Mental & Behavioral Examination." On the form,
No. 13AP-757                                                                            7

Dr. Murphy indicated by his mark: "[T]his Injured Worker is capable of work with the
limitation(s) / modification(s) noted below."
       {¶ 20} In the space provided, Dr. Murphy responded: "See report. Repetitive.
Non-complex. Normal climate of stress."
       {¶ 21} 7. On December 29, 2010, at the commission's request, relator was
examined by Kurt A. Kuhlman, D.O., who is board certified in physical medicine and
rehabilitation. In his five-page narrative report, Dr. Kuhlman states:
              [Relator] is capable of sedentary work only. He has no
              functional mobility of his neck. He has limited use of his left
              upper limb. He is incapable of performing repetitive lifting.
              He is incapable of driving [a] truck. His restrictions will be
              permanent.

       {¶ 22} 8. On December 29, 2010, Dr. Kuhlman completed a Physical Strength
Rating form. On the form, Dr. Kuhlman indicated by his mark that relator is capable of
sedentary work.
       {¶ 23} 9. Following a March 2, 2011 hearing, an SHO issued an order denying the
PTD application.    The SHO stated reliance upon the reports of Drs. Murphy and
Kuhlman. The SHO also addressed the non-medical disability factors.
       {¶ 24} 10. On October 17, 2011, relator filed in this court a mandamus action
challenging the commission's denial of his PTD application. The action (No. 11AP-886)
was assigned to a magistrate of this court.
       {¶ 25} 11. On July 20, 2012, this court's magistrate issued a magistrate's decision
in case No. 11AP-886. The magistrate recommended that this court issue a writ of
mandamus ordering the commission to vacate its SHO's order of March 2, 2011 and, in a
manner consistent with the magistrate's decision, to enter a new order that adjudicates
the PTD application. In the decision, the magistrate determined that Dr. Kuhlman's
report cannot constitute some evidence upon which the commission can rely.            The
magistrate explained:
              It can be noted that Dr. Kuhlman did not indicate any
              exertional capacity up to ten pounds of force occasionally.
              Thus, the question here is whether, under Dr. Kuhlman's
              restrictions, relator can exert "a negligible amount of force
              frequently * * * to lift, carry, push, pull or otherwise move
              objects."
No. 13AP-757                                                                           8

              Given that relator "is incapable of performing repetitive
              lifting," the magistrate finds that relator cannot exert a
              negligible amount of force frequently to lift, carry, push, pull
              or otherwise move objects.

              Dr. Kuhlman's prohibition against all "repetitive lifting"
              strongly suggests that relator is incapable of exerting a
              negligible amount of force frequently, given that "frequently"
              means that the activity exists from one-third to two-thirds of
              the time.

              Under the above analysis, Dr. Kuhlman's opinion that relator
              retains the capacity for sedentary work is inconsistent with
              his medical restrictions.

              A medical report can be so internally inconsistent that it
              cannot constitute some evidence to support a commission
              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). Such is the case here. Dr. Kuhlman's
              reports cannot constitute some evidence upon which the
              commission can rely.

       {¶ 26} 12. On August 28, 2012, in case No. 11AP-886, the parties, through counsel,
filed a Civ.R. 41(A) stipulation of dismissal, stating:
              In accordance with Civ.R. 41(A)(1)(b), the parties hereby
              stipulate that this action is dismissed with prejudice.

              Upon dismissal of the above action, the Staff Hearing Officer
              order dated March 2, 2011 adjudicating the claimant's IC-2
              Application for Permanent and Total Disability Com-
              pensation shall be vacated, and a new hearing scheduled
              before another Staff Hearing Officer on the issue of the
              claimant's IC-2 Application for Permanent and Total
              Disability Compensation filed November 15, 2010. The
              Industrial Commission shall select another physician, who
              shall conduct an examination of Hensley and issue a medical
              report concerning the issue of whether Hensley is
              permanently and totally disabled as a result of the allowed
              physical conditions in the claim. No other new or additional
              evidence will be submitted regarding the November 15, 2010
              IC-2 application. The Staff Hearing Officer shall issue a new
              order on the merits of the claimant's IC-2 Application for
              Permanent and Total Disability Compensation filed
              November 15, 2010, which either grants or denies the
              requested compensation.
No. 13AP-757                                                                           9

       {¶ 27} 13. On August 30, 2012, in case No. 11AP-886, this court entered a journal
entry of dismissal, accepting the August 28, 2012 stipulation of dismissal and dismissing
the action with prejudice effective August 28, 2012.
       {¶ 28} 14. On September 21, 2012, an SHO mailed an order that, pursuant to the
stipulation of dismissal in case No. 11AP-886, vacates the SHO's order of March 2, 2011
that denied the PTD application.      The SHO's order of September 21, 2012 further
provides:
              It is ordered that the claim be referred to the Medical
              Services Department of the Industrial Commission to
              arrange for a new physician to conduct a medical
              examination of the claimant on the allowed physical
              conditions in the claim. The physician shall conduct an
              examination of the claimant and shall issue a medical report
              concerning the issue of whether claimant is permanently and
              totally disabled as a result of the allowed physical conditions
              in the claim. No other new or additional evidence will be
              submitted regarding the IC-2 Application for Permanent
              Total Disability Compensation filed on 11/15/2010.

              Thereafter, the claim shall be referred to the Hearing
              Administrator to schedule a hearing de novo before another
              Staff Hearing Officer to determine the merits of the
              Application for Permanent Total Disability Compensation
              filed on 11/15/2010.

              * * * It is also ordered that the medical report of Dr. Kurt
              Kuhlman dated 12/29/2010 shall not be considered in
              adjudicating the claimant's IC-2 Application for Permanent
              Total Disability Compensation filed on 11/15/2010.

       {¶ 29} 15. On March 6, 2013, at the commission's request, relator was examined
by Donato J. Borrillo, M.D. In his six-page narrative report dated March 28, 2013, Dr.
Borrillo opined:
              In my medical opinion, the injured worker remains at
              [maximum medical improvement] for the allowed conditions
              in the present claim.

              The present claim is allowed for cervical (neck) sprain and
              degenerative disc disease C4-5, C6-7 with displacement at
              C5-6 and spinal stenosis at C4-5 and C6-7. He underwent
              surgical intervention and has reached a treatment plateau for
              these conditions. Taken as a region, these combined
No. 13AP-757                                                                           10

              conditions establish a DRE Cervical Category III eighteen
              percent (18%) whole person impairment, in accordance with
              Table 15-5 page 392.

              ***

              In my medical opinion, Mr. Hensley is capable of performing
              sedentary work as defined by the Dictionary of Occupational
              Titles. His allowed cervical conditions also prevent him from
              performing above shoulder height tasks, and he is unable to
              extend his neck to look upward. Given his allowed
              conditions, no commercial driving is also recommended.

(Footnote omitted.) (Emphasis sic.)

       {¶ 30} 16. On March 28, 2013, Dr. Borrillo completed a Physical Strength Rating
form. On the form, Dr. Borrillo indicated by his mark that relator is capable of sedentary
work. The form asks the physician to state: "Further limitations, if indicated." In
response, Dr. Borrillo wrote in his own hand:       "No commercial driving[,] no above
shoulder height tasking, unable to extend neck."
       {¶ 31} 17. By letter dated May 3, 2013, to the commission's hearing administrator,
relator's counsel questioned Dr. Borrillo's report and requested a new commission
medical examination. The letter argues:
              The injured worker is concerned that the opinion provided
              by Dr. Borrillo indicating that he is able to perform sedentary
              work, but is unable to perform any above-shoulder height
              tasks, would run afoul of [the] sedentary definition set forth
              under OAC Section 4121-3-34[B](2)(a). An injured worker
              must be able to exert up to ten pounds of force occasionally
              in order to lift or otherwise move objects. This would
              obviously include performing above-shoulder height tasks. If
              he is unable to perform this occasional or even frequent body
              movement for negligible weight, he does not fall into the
              sedentary category.

       {¶ 32} 18. By letter dated May 10, 2013, the hearing administrator responded to
the May 3, 2013 letter from relator's counsel:
              In his letter of May 3, 2013, the Injured Worker asserts that
              the inability to perform any above-shoulder height tasks, as
              found by Dr. Donato Borrillo in his March 26, 2013
              examination runs "afoul of the sedentary definition set forth
              under OAC Section 4121-3-34[B](2)(a)." The Hearing
No. 13AP-757                                                                        11

             Administrator finds that the sedentary work classification is
             silent with respect to the ability to perform above-shoulder
             height tasks, and further, the inability to perform such tasks
             does not render an Injured Worker incapable of all sustained
             remunerative employment. The Injured Worker has the
             opportunity at hearing to enumerate the perceived flaws in
             Dr. Borrillo's report, and highlight the strengths of his own
             examiner's opinion.

             [T]he Hearing Administrator finds that good cause for the
             scheduling of a new medical examination has not been
             established.

      {¶ 33} 19. Following a June 27, 2013 hearing, an SHO issued an order denying the
PTD application. The SHO's order explains:
             After full consideration of the issue it is the order of the Staff
             Hearing Officer that the application filed 11/15/2010 for
             permanent total disability compensation is denied. This
             decision is based on the 12/29/2010 report of Michael
             Murphy, Ph.D., the 03/28/2013 report of Donato Borrillo,
             M.D., and consideration of the Injured Worker's non-
             medical disability factors.

             Dr. Murphy evaluated the Injured Worker on 12/22/2010 for
             the allowed psychological condition, depressive disorder.
             This evaluation consisted of a clinical interview,
             psychological testing, and records review. Dr. Murphy found
             the allowed psychological condition had reached maximum
             medical improvement.

             Dr. Murphy noted the validity criteria of the testing
             performed indicated a strong "fake bad" in which the Injured
             Worker exaggerated and distorted his problems. This
             indicated the Injured Worker's true level of problems or
             symptoms was likely to be less than was shown by test
             results.

             Dr. Murphy concluded the allowed psychological condition
             resulted in mild impairments in the activities of daily living;
             adaptation (the ability to respond appropriately to changes
             in the work place); and concentration, persistence and pace.
             No impairment was found for social interaction. The whole
             person impairment for the depressive disorder was found to
             be 14%.
No. 13AP-757                                                                 12

           It was the opinion of Dr. Murphy that the Injured Worker
           actually had depression of mild severity which did not
           preclude employment or work at the former position of
           employment as a truck driver. The psychologist indicated the
           Injured Worker would function best in normal to low-stress
           conditions with simple work tasks. Specifically, Dr. Murphy
           recommended repetitive, non-complex work in a normal
           climate of stress.

           The Injured Worker was evaluated by Dr. Borrillo on
           03/26/2013 regarding the allowed physical conditions of this
           claim. Dr. Borrillo noted three cervical surgeries had been
           performed as part of this claim and also noted the Injured
           Worker underwent unrelated low back (L4-5) surgery in
           2004. The evidence in file also references bladder surgery
           and coronary procedures.

           It was the opinion of Dr. Borrillo that the allowed physical
           conditions of this claim had reached maximum medical
           improvement and resulted in 18% whole person impairment,
           all of which was attributable to cervical conditions
           recognized in this claim. Dr. Borrillo indicated the Injured
           Worker was capable of sedentary work which did not include
           tasks performed above shoulder height, extension of the neck
           upward, and commercial driving.

           Ohio Administrative Code 4121-3-34[B](a)(a) indicates
           "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.

           It is significant to note the Injured Worker has presented no
           evidence which alleges he is permanently and totally
           disabled as a result of the allowed physical conditions. The
           only probative medical evidence which addresses the Injured
           Worker's physical capabilities, for the purpose of permanent
           total disability, is the 03/28/2013 report of Dr. Borrillo.

           The 03/28/2013 report of Dr. Borrillo, which found the
           Injured Worker to be capable of sedentary work with
No. 13AP-757                                                                 13

           restrictions, is found persuasive. The restrictions of no tasks
           above shoulder height and no extension of the neck upward
           do influence the range of sedentary work the Injured Worker
           may perform. However, the Injured Worker has presented
           no vocational evidence which indicates these restrictions
           significantly compromise the range of sedentary work
           available to the Injured Worker.

           The restriction of no commercial driving does not appear to
           impact the Injured Worker's ability to perform sedentary
           work. The Department of Transportation (DOT) classifies all
           truck driving as light level work or higher. Only two jobs,
           driver's license review officer and escort vehicle driver for
           the transport of mobile homes, are classified as sedentary
           work for general drivers. Again, the Injured Worker has
           presented no vocational evidence to demonstrate this
           restriction would significantly impact the Injured Worker's
           available range of sedentary work.

           Similarly, the recommendations by Dr. Murphy for work
           which is repetitive, non-complex, and in a normal climate of
           stress do influence the range of sedentary work the Injured
           Worker may perform. No vocational evidence has been
           presented which evaluates these psychological restrictions
           alone, or in combination with the physical restrictions, to
           indicate the range of sedentary work available to the Injured
           Worker has been significantly compromised.

           The opinions of Drs. Murphy and Borrillo are found
           persuasive. As the medical evidence is not dispositive of the
           permanent total disability issue, a discussion of the Injured
           Worker's non-medical disability factors is necessary. State ex
           rel. Stephenson v. Industrial Commission (1987), 31 Ohio
           St.3d 167.

           The Injured Worker was born on 07/05/1957 and is
           currently 56 years of age. This is classified as a "person of
           middle age" and is found to be a vocationally-neutral factor.
           While some employers prefer an employee with more work
           life remaining, other employers prefer an employee with
           more work and life experiences.

           The Injured Worker attended school into the tenth grade,
           leaving to have a child. He eventually obtained his GED in
           approximately 1993. The Injured Worker was certified in
           1995 for a Class A commercial driver's license (CDL).
No. 13AP-757                                                                 14

           The Injured Worker also obtained a two-year Associate's
           Degree in Business Management. This education was not
           reported on the IC-2 application and the Injured [Worker]
           indicated on that form that he cannot read, write, or perform
           basic math very well. The associate's degree was reported to
           a vocational counselor in 2001.

           This is classified as a "high school education or above" and is
           found to be a positive vocational factor. Generally, a person
           with a high school education has the ability in reasoning,
           arithmetic, and language skills to perform semi-skilled
           through skilled work.

           The Injured Worker's relevant work history includes jobs
           primarily as a truck driver. This included jobs in the waste
           management industry where he performed maintenance on
           trucks and drove (skilled, medium); in the stone industry
           where he drove and ran drill and punch presses (semi-
           skilled, medium); in the brush industry where he drove, and
           stripped, polished and made brushes (semi-skilled,
           medium); and the former position of employment where he
           drove as well as loaded and unloaded trucks (semi-skilled,
           heavy).

           The evidence in file also reflects the Injured Worker has
           experience as a salesman (skilled, light) and operating his
           own business in automobile sales (skilled, light) for
           approximately three years. This work history was not
           reported on the IC-2 application but was noted by a
           vocational counselor in 2001.

           The Injured Worker's employment experience is found to be
           a positive vocational factor. It demonstrates the Injured
           Worker's ability to learn and perform a variety of semi-
           skilled and skilled work. The Injured Worker also has self-
           employment experience.

           The restrictions imposed by Dr. Borrillo would preclude the
           Injured Worker's return to work at any of the jobs he
           previously performed. Therefore, the Injured Worker's effort
           to be vocationally retrained for less exertional work is a
           factor to be considered in this permanent disability
           determination.

           The Injured Worker was referred to vocational rehabilitation
           in 2001 on two occasions. The 04/23/2001 closure report
           reflects the vocational rehabilitation file was closed without
No. 13AP-757                                                                 15

           participation as the Injured Worker was found to be
           medically unstable.

           The Injured Worker underwent surgery on 06/21/2001 and
           was re-referred to vocational rehabilitation in September
           2001. Initially work hardening and physical conditioning
           were scheduled. However, work hardening increased the
           Injured Worker's cervical symptoms and the plan was
           interrupted in November of 2001 and closed on 01/30/2002.
           No other attempts to be vocationally retrained have been
           made.

           The evidence on file indicates the Injured Worker has not
           returned to work since the date of injury in this claim. The
           Injured Worker began receiving Social Security Disability
           benefits in 2005 and the testimony at hearing indicated this
           was predicated on the conditions in this claim as well as the
           Injured Worker's coronary and low back problems.
           Temporary total compensation was last paid in this claim on
           09/01/2010 and was terminated as a result of the physician
           of record indicating the allowed conditions had reached
           maximum medical improvement.

           No evidence of any attempt to be retrained in the last eleven
           years has been presented. The Injured Worker indicated on
           the IC-2 application he is not interested in participating in
           vocational rehabilitation.

           Permanent total disability is a compensation "of last resort,
           to be awarded only when all reasonable avenues of accomp-
           lishing a return to sustained remunerative employment have
           failed." State ex rel. Wilson v. Industrial Commission (1997),
           80 Ohio St.3d 250, 253. The Injured Worker's residual
           functional capacity for nearly a full range of sedentary work,
           middle age, ability to learn, college level education, and
           varied work experience make him a candidate for
           rehabilitation and re-entry into the workforce. The failure to
           fully participate in vocational rehabilitation, and the failure
           to attempt to explore vocational rehabilitation in the recent
           past, are significant factors in denying this benefit of last
           resort.

           The opinions of Drs. Murphy and Borrillo limit the Injured
           Worker to less than a full range of sedentary work. The
           Injured Worker has an Associate's Degree in Business
           Management and a varied work history which includes self-
           employment. These factors would enable the Injured Worker
No. 13AP-757                                                                              16

                to do a broad range of sedentary work beyond entry-level
                positions. Absent any attempts at vocational rehabilitation or
                retraining within his specific restrictions, the Injured Worker
                cannot be considered to [be] permanently and totally
                disabled.

                Based on the above-listed physical and psychological
                capacities and non-medical disability factors, the Staff
                Hearing Officer finds the Injured Worker's disability is not
                total, and that the Injured Worker is capable of engaging in
                sustained remunerative employment, or being retrained to
                engage in sustained remunerative employment. Therefore,
                the Injured Worker's request for an award of permanent
                disability benefits is denied.

          {¶ 34} 20. On August 29, 2013, relator, Kenneth R. Hensley, filed this mandamus
action.
Conclusions of Law:
          {¶ 35} Relator endeavors to present three issues: (1) is the report of Dr. Borrillo
some evidence upon which the commission can rely to determine that relator has the
residual functional capacity to perform sedentary work; (2) is the report of Dr. Murphy
some evidence upon which the commission can rely to determine that relator has a
residual functional capacity that permits work, but precludes employment as a truck
driver; and (3) did the commission abuse its discretion in its consideration of the non-
medical factors.
          {¶ 36} The magistrate finds: (1) the report of Dr. Borrillo is some evidence upon
which the commission can and did rely in determining that relator has the residual
functional capacity to perform sedentary work; (2) relator has waived his right to
challenge the report of Dr. Murphy in this action; and (3) the commission did not abuse
its discretion in its consideration of the non-medical factors.
          {¶ 37} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
                                         First Issue
          {¶ 38} Ohio Adm.Code 4121-3-34 sets forth the commission's rules for the
adjudication of PTD applications. Ohio Adm.Code 4121-3-34(B) sets forth definitions.
No. 13AP-757                                                                          17

      {¶ 39} Ohio Adm.Code 4121-3-34(B)(2) is captioned "Classification of physical
demands of work." Thereunder, the code provides:
             (a) "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.

      {¶ 40} In State ex rel. O'Brien v. Cincinnati, Inc., 10th Dist. No. 07AP-825, 2008-
Ohio-2841, at ¶ 9-10, this court summarized relevant case law:
             Initially, it is important to note that a medical report that
             identifies the worker's exertional category as defined in the
             Ohio Administrative Code and does not include additional
             opinions regarding specific restrictions on sitting, lifting,
             standing, and so forth is still sufficient to constitute some
             evidence. State ex rel. Ace v. Toyota of Cincinnati Co.,
             Franklin App. No. 03AP-517, 2004-Ohio-3971, at ¶ 30. Thus,
             a medical report may constitute evidence on which the
             commission may rely when the physician simply opines the
             claimant was limited to "sedentary work" and provides no
             further details of the claimant's various functional
             restrictions. Id.

             On the other hand, the 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. 03AP-637, 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 level; rather, the commission
No. 13AP-757                                                                             18

              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.

       {¶ 41} In challenging the report of Dr. Borrillo, relator argues:
              Dr. Borrillo reported that Relator is capable of sedentary
              employment; however, Relator is restricted from
              "performing above shoulder height tasks, and is unable to
              extend his neck to look upward." * * * ["]Given his allowed
              conditions, no commercial driving is also recommended." Id.
              These restrictions are inconsistent with sedentary work
              activity, as defined under OAC §4121-3-34(B)(2), in that
              Relator would not be able to "frequently lift or otherwise
              move objects exerting a negligible amount of force." These
              restrictions described by Dr. Borrillo equate to a less than
              sedentary physical demand classification. An injured worker
              must be able to "exert up to ten pounds of force occasionally
              in order to lift or otherwise move objects." Arguably, this
              would include performing above-shoulder height tasks,
              which Relator is incapable of performing.

(Relator's brief, 19-20.)

       {¶ 42} The magistrate disagrees with relator's argument.            To begin, relator
incorrectly suggests that the performance of sedentary work requires that the injured
worker be able to exert up to ten pounds of force occasionally. Clearly, the definition
provides that sedentary work is performed when the injured worker can exert a
"negligible amount of force frequently * * * to lift, carry, push, pull, or otherwise move
objects."
       {¶ 43} Dr. Borrillo did not restrict relator from exerting up to ten pounds of force
occasionally nor did he restrict relator from exerting a negligible amount of force
frequently. However, Dr. Borrillo did restrict above-shoulder height tasks and he did
state that relator is unable to extend his neck to look upward.
       {¶ 44} In the magistrate's view, there is no obvious reason why the above- shoulder
restriction and the neck extension restriction would anatomically preclude exerting up to
ten pounds of force occasionally or exerting a negligible amount of force frequently. Thus,
relator's argument is unpersuasive.
No. 13AP-757                                                                             19

        {¶ 45} It is further the magistrate's view that the hearing administrator accurately
stated in his May 10, 2013 letter:
               The Hearing Administrator finds that the sedentary work
               classification is silent with respect to the ability to perform
               above-shoulder height tasks, and further, the inability to
               perform such tasks does not render an Injured Worker
               incapable of all sustained remunerative employment.

        {¶ 46} Based upon the forgoing analysis, the magistrate must conclude that the
report of Dr. Borrillo is indeed some evidence upon which the commission can and did
rely in determining that relator has the residual functional capacity to perform sedentary
work.
                                       Second Issue
        {¶ 47} As earlier noted, relator endeavors here to eliminate evidentiary reliance
upon the report of Dr. Murphy. However, relator has waived any right to challenge the
report of Dr. Murphy as some evidence upon which the commission can rely.
        {¶ 48} Here, in his merit brief, relator asserts that the commission's reliance upon
the report of Dr. Murphy was an abuse of discretion because allegedly it is not "some
evidence."   (Relator's brief, 28, 34.)    Relator claims that the report of Dr. Murphy
"contradicts previous medical reports and has internal inconsistencies that should not
have been relied upon by the Commission." (Relator's brief, 34.)
        {¶ 49} In its merit brief, the commission states:
               As to the allowed psychological condition, Hensley does not
               contest the commission's reliance upon the report from Dr.
               Murphy, who opined that there is mild impairment from the
               allowed psychological condition.

(Respondent's brief, 13.)

        {¶ 50} In his reply brief, relator does not take issue with the commission's
statement as above quoted, nor is there any further challenge to the report of Dr. Murphy.
Thus, it is not clear whether relator intended to drop his challenge to the report of Dr.
Murphy.
        {¶ 51} The August 28, 2012 stipulation of dismissal that relator entered into in
case No. 11AP-886 provides that the commission "shall select another physician, who
shall conduct an examination of Hensley and issue a medical report concerning the issue
No. 13AP-757                                                                            20

of whether Hensley is permanently and totally disabled as a result of the allowed physical
conditions in the claim. No other new or additional evidence will be submitted regarding
the November 15, 2010 IC-2 application."          (Emphasis added.)      Significantly, the
stipulation of dismissal does not provide that the commission shall select another
physician to conduct an examination regarding the allowed psychological condition.
       {¶ 52} Moreover, in the SHO's order of September 21, 2012 that endeavors to
implement the agreement of the parties as set forth in the stipulation of dismissal, the
SHO orders that the report of Dr. Kuhlman shall not be considered in the adjudication of
the PTD application. There is no mention of the report of Dr. Murphy, and relator never
objected to the SHO's order of September 21, 2012 as failing to set forth the appropriate
instructions for the implementation of the agreement set forth in the August 28, 2012
stipulation of dismissal.
       {¶ 53} In State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78 (1997), the
Supreme Court of Ohio, stated:
              "Ordinarily, reviewing courts do not consider questions not
              presented to the court whose judgment is sought to be
              reversed." Goldberg v. Indus. Comm. (1936), 131 Ohio St.
              399, 404, 6 O.O. 108, 110, 3 N.E.2d 364, 367. See, also, State
              ex rel. Moore v. Indus. Comm. (1943), 141 Ohio St. 241, 25
              O.O. 362, 47 N.E.2d 767, paragraph three of the syllabus;
              State ex rel. Gibson v. Indus. Comm. (1988), 39 Ohio St.3d
              319, 320, 530 N.E.2d 916, 917 (rule that issues not previously
              raised are waived is applicable in an appeal from a denial of a
              writ of mandamus). Nor do appellate courts have to consider
              an error which the complaining party "could have called, but
              did not call, to the trial court's attention at a time when such
              error could have been avoided or corrected by the trial
              court." State v. Williams (1977), 51 Ohio St.2d 112, 117, 5
              O.O.3d 98, 101, 364 N.E.2d 1364, 1367.

              These rules are deeply embedded in a just regard to the fair
              administration of justice. They are designed to afford the
              opposing party a meaningful opportunity to respond to
              issues or errors that may affect or vitiate his or her cause.
              Thus, they do not permit a party to sit idly by until he or she
              loses on one ground only to avail himself or herself of
              another on appeal. In addition, they protect the role of the
              courts and the dignity of the proceedings before them by
              imposing upon counsel the duty to exercise diligence in his
No. 13AP-757                                                                           21

              or her own cause and to aid the court rather than silently
              mislead it into the commission of error.

Id. at 81.

       {¶ 54} Clearly, relator cannot challenge in this action the report of Dr. Murphy as
failing to constitute some evidence upon which the commission can rely in determining
residual functional capacity as to the allowed psychological condition. Relator has had a
previous opportunity to challenge Dr. Murphy's report and has failed to avail himself of
the opportunity. Quarto Mining.
                                        Third Issue
       {¶ 55} As earlier noted, the third issue is whether the commission abused its
discretion in its consideration of the non-medical factors.
       {¶ 56} In the SHO's order of June 27, 2013, the SHO states:
              The Injured Worker also obtained a two-year Associate's
              Degree in Business Management. This education was not
              reported on the IC-2 application and the Injured [Worker]
              indicated on that form that he cannot read, write, or perform
              basic math very well. The associate's degree was reported to
              a vocational counselor in 2001.

       {¶ 57} Here, in his brief, relator asserts:
              Relator did not earn an Associate's degree in Business
              Management as erroneously stated by the SHO; rather, he
              attempted to attend college but ultimately did not complete
              the program.

(Relator's brief, 30.)

       {¶ 58} In his reply brief, relator asserts that the SHO's order of June 27, 2013
contains a mistake of fact. Relator argues:
              The Staff Hearing Officer did not indicate in the Order any
              attempt to clarify the competing statements from Relator
              and the vocational counselor. In fact, Relator did attempt to
              obtain this degree but ultimately did not finish the
              curriculum. Had the Industrial Commission been aware that
              Relator did not earn an Associate's Degree, it is possible that
              it would have evaluated the non-medical Stephenson factors
              differently.

(Relator's reply brief, 10.)
No. 13AP-757                                                                                22


       {¶ 59} The record contains a document captioned "Individualized Vocational
Rehabilitation Plan" on bureau form BWC-2952.            This two-page document is dated
December 18, 2001. On the form, a bureau "Vocational Case Manager" wrote:
               [Injured Worker's] educational background includes:
               securing his High School diploma and two-year associate's
               degree in Business Management.

       {¶ 60} As the court states in State ex rel. Ewart v. Indus. Comm., 76 Ohio St.3d
139, 141 (1996), "[t]he freedom to independently evaluate nonmedical factors is important
because nonmedical factors are often subject to different interpretation."
       {¶ 61} The December 18, 2001 individualized vocational rehabilitation plan is
clearly some evidence supporting the finding in the SHO's order of June 27, 2013 that
relator actually obtained a two-year associate's degree in business management.
Assertions of counsel in relator's briefs to the contrary are not evidence. Moreover,
relator fails to identify the so-called "competing statements from Relator" that allegedly
dispute the December 18, 2001 statement of the vocational rehabilitation case manager.
(Relator's reply brief, 10.)
       {¶ 62} Given the above scenario, the commission did not abuse its discretion in
finding that relator obtained a two-year associate's degree in business management.
Ewart.
       {¶ 63} 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).
