[Cite as State ex rel. Denton v. Indus. Comm., 2019-Ohio-3173.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Patricia Denton,                     :

                 Relator,                              :

v.                                                     :             No. 18AP-100

Industrial Commission of Ohio et al.,                  :          (REGULAR CALENDAR)

                 Respondents.                          :


                                           D E C I S I O N

                                     Rendered on August 8, 2019


                 On brief: Jurus Law Office, and Robert B. Bumgarner, for
                 relator. Argued: Robert B. Bumgarner.

                 On brief: Dave Yost, Attorney General, and Sherry M.
                 Phillips, for respondent Industrial Commission of Ohio.
                 Argued: Sherry M. Phillips.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BEATTY BLUNT, J.
        {¶ 1} Relator, Patricia Denton, has filed an original action seeking a writ of
mandamus to order the Industrial Commission of Ohio ("commission") to vacate its order
denying her application for permanent total disability ("PTD") compensation.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Denton previously sustained two work related injuries for which she received
benefits under Ohio's workers' compensation system.
        {¶ 3} First, in 1993, when she was employed by respondent Peyton, Inc., Denton
had the following allowed claim: lumbar myositis; aggravation of pre-existing lumbar
injury; herniated disc L4-5; lumbar spondylosis; intervertebral disc degeneration L4-5 and
L5-S1; aggravation of dysthymia. (Claim No. 93-951.)
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No. 18AP-100


       {¶ 4} Then, in 2007, Denton was injured in the course of her employment with
respondent Safelite Auto Glass and had the following allowed claim: sprain left distal
tibiofibular; sprain of left knee and leg; substantial aggravation of left knee medial femoral
chondromalacia; substantial aggravation of subchondral cyst left knee. (Claim No. 07-
350191.)
       {¶ 5} On September 24, 2015, Denton filed an application for PTD compensation.
At the time she applied, Denton was 73 years old and had not worked since 2011. (See
Sept. 21, 2017 SHO Order at 1.)       The staff hearing officer ("SHO") denied Denton's
application for PTD compensation on September 21, 2017. The SHO reviewed "[a]ll file
evidence" and considered it in reaching his conclusion. (SHO Order at 2.) The SHO
reached the following conclusions before ultimately finding that Denton "is not
permanently and totally disabled" and is not entitled to PTD compensation:

              Claimant retains the residual physical ability to perform up to
              light level employment.

              * * * Claimant retains the residual psychological capacity to
              perform any work that she is otherwise physically capable of
              performing, subject to the restrictions specified by
              Dr. Finnerty.

              * * * Claimant's age of 75 is a barrier to re-employment * * *
              [h]owever * * * this need not be an insurmountable barrier.

              * * * Claimant's level of education (tenth grade plus GED with
              business skills training) [is] a distinct asset to reemployment in
              that it is more than adequate for many entry level sedentary
              and light levels of employment.

              * * * Claimant's work history [is] an asset to re-employment in
              that it is indicative of an individual with a strong work ethic and
              stable work profile. * * *.

              * * * [T]here is no persuasive evidence in the file to indicate that
              the claimant, at the very least, would be incapable of obtaining
              new job skills (if needed) via on-the-job training.

(SHO Order at 2.)
       {¶ 6} Denton filed a request for reconsideration, but it was denied by the
commission on October 18, 2017.
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No. 18AP-100


       {¶ 7} Denton then filed this mandamus action.
       {¶ 8} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who considered the action on its merits and issued
a decision, including findings of fact and conclusions of law, which is appended hereto. The
magistrate determined that the commission did not abuse its discretion in finding that
Denton was not entitled to PTD compensation and has recommended that this court deny
the request for a writ of mandamus.
       {¶ 9} Denton filed objections to the magistrate's decision. First, Denton objects to
the magistrate's finding that the record does not reflect that the commission failed to
consider vocational evidence from the Bureau of Vocational Rehabilitation ("BVR").
Second, Denton objects to the magistrate's finding that the commission did not abuse its
discretion because the BVR assumed Denton was only capable of sedentary work whereas
the commission examiner found that she was capable of light work.
       {¶ 10} Denton argues that the commission wholly failed to consider the BVR, even
though it was required to do so. Denton posits that the SHO's failure to specifically identify
the BVR report is evidence that the SHO failed to consider it. Denton further argues that
this evidence should have been considered in analyzing whether Denton could be retrained
to perform light work.
II. ANALYSIS
       {¶ 11} A relator must meet three requirements to be entitled to a writ of mandamus.
She must show: (1) she has a clear legal right to the relief requested, (2) the party against
whom the writ is sought is under a clear legal duty to perform the act requested, and (3) she
has no plain and adequate remedy in the ordinary course of the law. State ex rel. Davis v.
School Emps. Retirement Sys., 10th Dist. No. 08AP-214, 2008-Ohio-4719, ¶ 14.
       {¶ 12} "A clear legal right to a writ of mandamus exists when the relator shows that
the commission abused its discretion by entering an order that is not supported by any
evidence in the record." State ex rel. Metz v. GTC, Inc., 142 Ohio St.3d 359, 2015-Ohio-
1348, ¶ 11, citing State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). The court
will not disturb the commission's decision if there is "some evidence" to support it. SER
Fiber-Lite Corp. v. Indus. Comm., 36 Ohio St.3d 202 (1988); State ex rel. Bennett v. Aldi,
Inc., 10th Dist. No. 14AP-632, 2016-Ohio-83, ¶ 6. " 'Where a Commission order is
                                                                                          4
No. 18AP-100


adequately explained and based on some evidence[,] * * * the order will not be disturbed as
manifesting an abuse of discretion.' " State ex rel. Avalon Precision Casting Co. v. Indus.
Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, ¶ 9, quoting State ex rel. Mobley v. Indus.
Comm., 78 Ohio St.3d 579, 584 (1997).
       {¶ 13} R.C. 4123.58 provides the mechanism for awarding a claimant PTD
compensation. This compensation is meant " 'to compensate an injured worker for
impairment of earning capacity, Ohio Adm.Code 4121-3-34(B)(1), and the benefits are paid
until the employee's death, R.C. 4123.58(A).' " State ex rel. Ohio Presbyterian Retirement
Servs. v. Indus. Comm., 151 Ohio St.3d 92, 2017-Ohio-7577, ¶ 17. PTD compensation is
broken down into two types: (1) compensation for a loss of two body parts, R.C.
4123.58(C)(1), which is not at issue here; and (2) compensation for a workplace injury that
prevents the worker from "engaging in sustained remunerative employment," R.C.
4123.58(C)(2).
       {¶ 14} The Supreme Court of Ohio has outlined the proper analysis in considering a
PTD compensation application as follows:
              The relevant inquiry in determining permanent total disability
              is whether the claimant is able to perform sustained
              remunerative employment. State ex rel. Stephenson v. Indus.
              Comm., 31 Ohio St.3d 167, 170, 31 Ohio B. 369, 509 N.E.2d 946
              (1987). In addition to the medical evidence, the commission
              must analyze nonmedical factors such as the claimant's age,
              education, and work record. The commission must also
              consider any other factors that might be important to the
              determination whether a claimant may return to the job market
              by using past employment skills or skills that may be
              reasonably developed. Id.

State ex rel. Gulley v. Indus. Comm., 152 Ohio St.3d 412, 2017-Ohio-9131, ¶ 12.
       {¶ 15} Turning to Denton's objections, we find that the record does not reflect that
the commission wholly failed to consider the vocational evidence from the BVR in reaching
its determination. There is no dispute that the SHO had the BVR report, submitted as part
of the PTD application file. (See Relator's Aug. 7, 2018 Brief at 4, 7.) It was specifically
referenced in the PTD application. (See Sept. 24, 2015 Application for PTD Compensation
at 2.) In her application, Denton stated:
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No. 18AP-100


              I recently went through BVR. My BVR records were filed with
              the BWC. They said voc rehab [sic] was not feasible for me.
              They said my pace was too slow and I didn't understand the
              computer information. Therefore they closed my rehab [sic]
              file due to lack of progress.

(Sept. 24, 2015 Application for PTD Compensation at 2.)
       {¶ 16} Denton concedes that the commission is "not required to accept vocational
evidence and it has the discretion to accept or reject vocational evidence." Relator's Objs.
at 7, citing State ex rel. La Croix v. Indus. Comm., 144 Ohio St.3d 17, 2015-Ohio-2313; State
ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266 (1997). Denton also concedes that the
"[c]ommission needs only to enumerate the evidence it relied upon to reach its decision and
that it does not need to list or cite all evidence that has been considered and rejected."
Relator's Objs. at 7, citing State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481
(1983); State ex rel. Fultz v. Indus. Comm., 69 Ohio St.3d 327 (1994).
       {¶ 17} Denton cites to State ex rel. Gulley v. Indus. Comm., 152 Ohio St.3d 412,
2017-Ohio-9131, to support her objections. But Gulley does not support Denton's position.
In Gulley, the commission expressly rejected a vocational professional's reports because it
determined that the professional had a conflict of interest in that she had been hired by the
claimant's attorney to assess the claimant for the PTD application. On appeal, the Supreme
Court first acknowledged that "the commission has authority to reject a vocational report,
even if it is uncontradicted." Gulley at ¶ 16, citing State ex rel. Singleton v. Indus. Comm.,
71 Ohio St.3d 117 (1994). The Supreme Court then found that the vocational professional's
opinion was not tainted due to a conflict of interest. As a result, the Supreme Court held,
specifically and narrowly, that "it was an abuse of discretion for the commission to reject
McCoy's reports based on a conflict of interest." Id. at ¶ 17. Because the commission
expressly and erroneously refused to consider the reports, the Supreme Court remanded
the matter and "order[ed] the commission to review all the vocational evidence before
determining    whether    [the   claimant]    is   entitled   to   permanent-total-disability
compensation." Id. at ¶ 18. This case is not like Gulley.
       {¶ 18} As we have recognized, the commission does not violate the mandates of
Gulley where it, like here, simply finds certain evidence more persuasive than other
evidence as long as it "[does] not turn away any evidence out of hand." State ex rel. Giant
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No. 18AP-100


Eagle v. Indus. Comm., 10th Dist. No. 18AP-216, 2019-Ohio-2135, ¶ 20. "That sort of
evaluation or weighing is the commission's job." Id. at ¶ 21. As we noted in Giant Eagle,
as the Supreme Court has continually held, and as relator here expressly concedes, the
commission "[is] not required to make any * * * explicit reference" to a vocational
assessment in its decision. Id., citing State ex rel. Scouler v. Indus. Comm., 119 Ohio St.3d
276, 2008-Ohio-3915, ¶ 16, and State ex rel. Mitchell v. Robbins & Meyers, Inc., 6 Ohio
St.3d 481, 483-84 (1983). Rather, "the commission need only enumerate the evidence
relied upon to reach its decision." Scouler at ¶ 16; Robbins & Meyers, Inc. at 483 ("district
hearing officers, as well as regional boards of review and the Industrial Commission, must
specifically state which evidence and only that evidence which has been relied upon to
reach their conclusion * * * " (emphasis added)). " 'The commission is not required to list
or cite evidence that has been considered and rejected or explain why certain evidence was
deemed unpersuasive.' " Giant Eagle at ¶ 22, quoting Scouler at ¶ 16; see also Jackson at
270-71 ("the commission * * * is not required to accept vocational evidence, even if
uncontradicted * * *. The commission may credit offered vocational evidence, but expert
opinion is not critical or even necessary, because the commission is the expert on this
issue").
       {¶ 19} In his order denying Denton's application, the SHO expressly stated that
"[a]ll file evidence was reviewed and considered" in reaching his decision. (Emphasis
added.) (SHO Order at 2.) Although he only highlighted two specific reports to support his
determination that Denton could obtain light duty employment, there is nothing to suggest
the SHO failed to consider all of the evidence as he represented. Instead, as the order states,
there was no "persuasive" evidence to indicate Denton is unable to obtain a job. (SHO
Order at 2.) Unlike in Gulley, the SHO did not erroneously refuse to consider the BVR
report. Plainly, the SHO did not find the BVR report persuasive within the entire body of
evidence submitted, and it was within the SHO's discretion to reject the evidence. The SHO
acted properly in listing only the evidence it found persuasive to reach its decision. See
Scouler; Robbins & Meyers, Inc.; Giant Eagle.
       {¶ 20} Denton also argues that the BVR report was relevant to and should have been
considered in the analysis of whether Denton could obtain light duty work. First, the court
finds nothing to suggest that the SHO did not consider the report as part of this analysis.
                                                                                            7
No. 18AP-100


In addition, as the magistrate noted, the BVR report, by its own language, operated under
the assumption that Denton was only able to perform sedentary work. The report found
there was no feasible employment goal for Denton because "virtually all sedentary jobs
require use of a computer[.]" (Aug. 12, 2015 BVR Report Cvr. Letter.) The BVR expressly
discounted the possibility that Denton could be a greeter, ticket taker, or security personnel
—all light duty jobs—because "these jobs typically require some cleaning, stock work or
walking the property." (BVR Report at 1.) As such, the BVR assumed Denton could not
perform light duty work and never considered whether she could be employed in a light
duty work position. The physical and psychological professionals who examined Denton
never suggested that she was incapable of performing light duty work. To the contrary, they
found she could perform light duty work. Nonetheless, the BVR expressly assumed and
determined that Denton was "limited to sedentary work" and did "not have marketable
skills for sedentary work." (BVR Report at 1.) Relying on these unfounded assumptions,
the BVR foreclosed the possibility of evaluating whether Denton was capable of light duty
work. This failure to consider whether Denton was capable of performing light duty work
decreased the relevancy of the BVR report in analyzing Denton's ability to obtain sustained
remunerative employment. As such, the SHO's failure to rely on the report as persuasive
evidence was not an abuse of discretion.
       {¶ 21} After an examination of the magistrate's decision, an independent review of
the evidence, pursuant to Civ.R. 53, and due consideration of Denton's objections, we
overrule the objections. Accordingly, we adopt the magistrate's decision as our own with
regard to the findings of fact and conclusions of law, and we deny the relator's request for a
writ of mandamus.
                                         Objections overruled; writ of mandamus denied.

                          BRUNNER and NELSON, JJ., concur.
                                                                                          8
No. 18AP-100


                                        APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel.                            :
Patricia Denton,
                                             :
              Relator,
                                             :
v.                                                                 No. 18AP-100
                                             :
Industrial Commission of Ohio et al.,                        (REGULAR CALENDAR)
                                             :
              Respondents.
                                             :



                         MAGISTRATE'S DECISION

                             Rendered on January 29, 2019



              Jurus Law Office, and Robert B. Bumgarner, for relator.

              Dave Yost, Attorney General, and Sherry M. Phillips, for
              respondent.


                                     IN MANDAMUS

       {¶ 22} Relator, Patricia Denton, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied relator's application for permanent total
disability ("PTD") compensation, and ordering the commission to reconsider that decision
after properly considering all of the vocational evidence including the records from the
Bureau of Vocational Rehabilitation ("BVR").
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No. 18AP-100


Findings of Fact:
       {¶ 23} 1. Claimant has sustained two work-related injuries, the first in 1993, and
the second in 2007. Her workers' compensation claims have been allowed for the
following conditions:
              Claim 93-951: Lumbar myositis; aggravation of pre-existing
              lumbar injury; herniated disc L4-5; lumbar spondylosis;
              intervertebral disc degeneration L4-5 and L5-S1; aggravation
              of dysthymia.

              Claim Number 07-350191: Sprain left distal tibiofibular; sprain
              of left knee and leg; substantial aggravation of left knee medial
              femoral chondromalacia; substantial aggravation of
              subchondral cyst left knee.

       {¶ 24} 2. Relator requested and was referred for vocational rehabilitation with the
BVR in 2015. At that time, it was presumed that she could perform no more than
sedentary work activity. As such, all rehabilitation efforts focused exclusively on whether
relator could return to sedentary employment.
       {¶ 25} 3. In a letter dated August 12, 2015, relator was notified that her
rehabilitation file was being closed for the following reasons:
              Patricia's case is being closed at this time, due to lack of
              progress. She was referred for computer training, but was not
              successful due to difficulty with understanding and retraining
              information. Because virtually all sedentary jobs require use of
              a computer to record or process information, we were not able
              to identify a feasible goal for her. We briefly talked about the
              idea of a greeter, ticket taker, or security position, but these jobs
              typically require some cleaning, stock work or walking the
              property. [Vocational Rehabilitation Counselor] met with
              Patricia and [Functional Training Services] staff to discuss case
              closure. She was in agreement.

(Emphasis added.)

       {¶ 26} 4. On September 24, 2015, relator filed her application for PTD
compensation. At the time, relator was 73 years old. According to her application, she
had completed tenth grade, had received her GED, and had training in business skills as
well as word processing; and she was capable of reading, writing, and performing basic
                                                                                          10
No. 18AP-100


math. Relator indicated that she had filed for Social Security Disability benefits and she
last worked in 2011.
       {¶ 27} 5. Relator was examined by Robert G. Stanko, M.D. In his February 15,
2017 report, Dr. Stanko identified the allowed conditions in relator's claim, discussed
medical records which he reviewed, provided his physical findings on examination, and
concluded that relator's allowed physical conditions had reached maximum medical
improvement ("MMI"). Dr. Stanko also opined that relator had a 22 percent whole person
impairment, and that she was capable of performing light-duty work.
       {¶ 28} 6. Todd Finnerty, Psy-D, examined relator for her allowed psychological
conditions.    In his February 23, 2017 report, Dr. Finnerty identified the allowed
conditions in relator's claim, discussed the medical records which he reviewed, provided
his findings following his mental status examination, and determined that relator was
moderately impaired in all four functional areas:          activities of daily living, social
functioning, adaptation, as well as concentration, persistence, and pace. Thereafter, Dr.
Finnerty opined that relator had a class three moderate impairment of 25 percent as
concerns her allowed psychological conditions and that she was capable of working with
the following limitations:
              She can sustain a static set of tasks without fast pace or frequent
              changes which may exacerbate maladaptive responses to
              stress. She can interact with others briefly and superficially.

       {¶ 29} 7. Vocational consultant Molly S. Williams, performed a vocational review.
In her April 10, 2017 report, Ms. Williams used the findings of Drs. Stanko and Finnerty
as well as her past relevant work as a customer service representative in making her
assessment.    Ms. Williams ultimately concluded that given relator's age and the
completion of her GED in the remote past, that she had no transferrable skills. As a result,
Ms. Williams concluded that relator should be found to be permanently and totally
disabled.
       {¶ 30} 8. Relator's application was heard before a staff hearing officer ("SHO") on
September 21, 2017. The SHO noted that relator was currently 75 years old, that she had
a tenth grade education but had completed her GED in 1986, and had worked as a
customer service representative from 1988 to 2011, having last worked in May 2011.
                                                                                           11
No. 18AP-100


Thereafter, the SHO relied on the medical reports of Drs. Stanko and Finnerty, and
concluded that she could perform light-duty work with the limitations imposed by Dr.
Finnerty. Thereafter, the SHO found that relator's age was a barrier to re-employment
but that it was not insurmountable. The SHO determined that relator's education plus
her business skills training was a distinct asset to re-employment and was more than
adequate for many entry-level, sedentary, and light-duty jobs.           Further, the SHO
determined that relator's work history was an asset, that she showed a strong work ethic,
a stable work profile, and that all things considered, she was not permanently and totally
disabled. With regard to her vocational rehabilitation efforts, the SHO made the following
finding:
              The SHO also finds that there is no persuasive evidence in file
              to indicate that the claimant, at the very least, would be
              incapable of obtaining new job skills (if needed) via on-the-job
              training.

       {¶ 31} 9. Relator filed a request for reconsideration arguing that the SHO made
two mistakes of fact: finding no persuasive evidence, relator would be incapable of
obtaining new job skills, and that her past work in customer service was consistent with
Dr. Finnerty's restrictions.
       {¶ 32} 10. Relator's request for reconsideration was denied by order of the
commission mailed October 28, 2017.
       {¶ 33} 11. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 34} For the reasons that follow, it is this magistrate's decision that relator has
not demonstrated that the commission abused its discretion and this court should deny
relator's request for a writ of mandamus.
       {¶ 35} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
                                                                                         12
No. 18AP-100


       {¶ 36} 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).
       {¶ 37} In this mandamus action, relator challenges the commission's finding that
there was "no persuasive evidence in file to indicate that the claimant, at the very least,
would be incapable of obtaining new job skills (if needed) via on-the-job training." In
support of that argument, relator directs this court's attention to the BVR closure report
dated August 12, 2015.
       {¶ 38} In 2015, when the BVR considered relator for vocational rehabilitation
services, the BVR began with the assumption that relator was limited exclusively to
sedentary jobs. Based on a finding that virtually all sedentary jobs require the use of a
computer to record or process information and relator's inability to successfully complete
computer training, the BVR concluded there were no sedentary jobs which she could
perform. Specifically, the vocational rehabilitation counselor stated:
              She was referred for computer training, but was not successful
              due to difficulty with understanding and retaining
              information. Because virtually all sedentary jobs require use
              of a computer to record or process information, we were not
              able to identify a feasible goal for her.

       {¶ 39} Although they did discuss jobs such as greeter, ticket taker, or security,
because those jobs would require some cleaning, stock work, or walking, it was decided
that relator's vocational rehabilitation file should be closed. Specifically, the vocational
rehabilitation counselor stated:
              We briefly talked about the idea of a greeter, ticket taker, or
              security position, but these jobs typically require some
                                                                                          13
No. 18AP-100


              cleaning, stock work or walking the property. [Vocational
              Rehabilitation Counselor] met with Patricia and [Functional
              Training Services] staff to discuss case closure. She was in
              agreement.

       {¶ 40} The BVR never considered whether or not relator would be capable of
performing light-duty jobs which may or may not require the learning of any new skills
or the availability of any transferrable skills. Further, the BVR never considered whether
relator could acquire skills which can be learned via on-the-job training. Given that the
commission relied on medical evidence that relator was capable of performing light-duty
work, and not solely sedentary work, the magistrate finds the commission did not abuse
its discretion by finding there was no persuasive vocational evidence to indicate that
relator would not be able to obtain new job skills via on-the-job training.
       {¶ 41} Relator cites the following sentence from State ex rel. Gulley v. Indus.
Comm., 152 Ohio St.3d 412, 2017-Ohio-9131:
              Although the commission is not bound to accept all vocational
              evidence in the record, it is required to review the evidence to
              determine whether the claimant is foreclosed from sustained
              remunerative employment.

       {¶ 42} In reading this, it must be remembered that the commission had specifically
excluded the vocational evidence from any consideration finding a conflict of interest.
The Supreme Court found the commission abused its discretion in finding a conflict of
interest and ordered the commission to rehear the matter and consider the purposely
rejected vocational evidence. Gulley did not change the law concerning the duty of the
commission to consider all evidence before it nor did it change the responsibility for the
commission to identify the evidence on which it relied and provide a brief explanation.
The record simply does not reflect relator's argument that the commission failed to
consider the vocational evidence.
       {¶ 43} For the above stated reasons, it is this magistrate's decision that relator has
not demonstrated the commission abused its discretion when it determined that,
inasmuch as the vocational evidence only considered relator's ability to be re-employed
in a sedentary capacity and did not consider whether or not she had the ability to learn on
the job, there was a lack of persuasive vocational evidence indicating that relator could
                                                                                  14
No. 18AP-100


not learn on the job. As such, this court should deny relator's request for a writ of
mandamus.
                                             /S/ MAGISTRATE
                                             STEPHANIE BISCA


                             NOTICE TO THE PARTIES

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