[Cite as State ex rel. Falgiani v. Indus. Comm., 2017-Ohio-719.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Dominic J. Falgiani,                    :

                 Relator,                             :

v.                                                    :                No. 16AP-361

Industrial Commission of Ohio                         :            (REGULAR CALENDAR)
and Altronic Inc.,
                                                      :
                 Respondents.
                                                      :




                                            D E C I S I O N

                                    Rendered on February 28, 2017


                 On brief: Heller, Maas, Moro & Magill Co., LPA, Joseph A.
                 Moro, and Patrick J. Moro, for relator.

                 On brief: Michael DeWine, Attorney General, and Shaun P.
                 Omen, for respondent Industrial Commission of Ohio.

                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

DORRIAN, J.
        {¶ 1} In this original action, relator, Dominic J. Falgiani, requests this court issue
a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission")
to vacate its order which denied his application for permanent total disability ("PTD")
compensation, and ordering the commission to find relator is entitled to said
compensation.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
this court deny the request for a writ of mandamus.
        {¶ 3} Relator has filed the following objection to the magistrate's decision:
No. 16AP-361                                                                             2

                The Magistrates reliance upon State ex rel. Wood [v. Indus.
                Comm., 78 Ohio St.3d 414 (1997)] in finding that Dr. Gade-
                Pulido's [report] is not inconsistent is improper as that case
                inapplicable to the instant matter.

(Sic passim.)
       {¶ 4} Relator argues the magistrate incorrectly found that the commission did not
abuse its discretion when it denied his application for PTD compensation. Specifically,
relator argues that Dr. Karen Gade-Pulido's report is internally inconsistent and,
therefore, cannot constitute "some evidence" to support the denial of PTD compensation.
Relator argues that Dr. Gade-Pulido's report must be considered together with the
definition of "light work" pursuant to Ohio Adm.Code 4121-3-34(B)(2)(b). Relator argues
the magistrate erred in applying State ex rel. Wood v. Indus. Comm., 78 Ohio St.3d 414
(1997), because Wood is distinguishable from this case. In Wood, four doctors examined
the claimant, listed the same restrictions, and found that he was physically capable of
sedentary work; whereas in the case before us, only one doctor, Dr. Gade-Pulido, opined
relator was capable of performing any type of work.
       {¶ 5} Relator concludes that according to the definition of light work set forth in
Ohio Adm.Code 4121-3-34(B)(2)(b), relator would be: (1) unable to walk or stand to a
significant degree, as documented by Dr. Dean DePerro, (2) unable to sit for most of the
time as documented by Dr. DePerro and Shannon Valentine, and (3) unable to constantly
push and/or pull materials as documented by Dr. Gade-Pullido, Dr. DePerro, and
Valentine.
       {¶ 6} Because the commission did not rely on the reports of Dr. DePerro and
Valentine in concluding that relator was capable of light work, we will not consider the
same. Therefore, we will not address relator's first and second arguments, as well as his
third argument to the extent it invokes Dr. DePerro's and Valentine's reports.
Furthermore, we note that relator's specific objection is that the commission could not
rely on Dr. Gade-Pulido's report because it was internally inconsistent. Therefore, we will
only address relator's third argument to the extent it invokes Dr. Gade-Pulido's report and
consider the proposition that it was internally inconsistent. This argument is essentially
the same raised to and addressed by the magistrate.
       {¶ 7} The magistrate concluded:
                Contrary to relator's argument, nothing n the definition of
                light-duty work would require a worker to perform overhead
No. 16AP-361                                                                              3

               activities. As such, to the extent he asserts that Dr. Gade-
               Pulido's restriction that he avoid overhead use of his upper
               extremities precludes him from performing light-duty work,
               relator is incorrect. Further, nothing in the definition of light-
               duty work requires a worker to repetitively use their upper
               extremities. Exerting up to 20 pounds of force occasional,
               and/or up to 10 pounds of force frequently, does not
               necessarily require that those actions be performed
               repetitively. Also the fact that relator might not be able to
               perform a full range of light-duty work does not render Dr.
               Gade-Pulido's report inconsistent, nor does it invalidate the
               commission's conclusion that relator is capable of performing
               light-duty work. See State ex. rel Wood v. Indus. Comm., 78
               Ohio St.3d 414 (1997).

(Appended Magistrate's Decision at ¶ 32.)
       {¶ 8} Ohio Adm.Code 4121-3-34(B)(2)(b) states:
               "Light work" means exerting up to twenty pounds of force
               occasionally, and/or up to ten pounds of force frequently,
               and/or a negligible amount of force constantly (constantly:
               activity or condition exists two-thirds or more of the time) to
               move objects. Physical demand may be only a negligible
               amount, a job should be rated light work: (i) when it requires
               walking or standing to a significant degree; or (ii) when it
               requires sitting most of the time but entails pushing and/or
               pulling or arm or leg controls; and/or (iii) when the job
               requires working at a production rate pace entailing the
               constant pushing and/or pulling of materials even though the
               weight of those materials is negligible.

(Emphasis added.)
       {¶ 9} Given the use of the term "and/or," as well as the Supreme Court of Ohio's
direction in Wood, we agree with the magistrate that the fact that relator might not be
able to perform a full range of light-duty work, i.e. the constant pushing and/or pulling of
materials, does not render Dr. Gade-Pulido's report inconsistent nor does it invalidate the
commission's conclusion that relator is capable of performing light-duty work. We are
not persuaded by relator's argument that the factual distinctions between Wood and the
case before us render Wood inapplicable here. Here, the commission found, based on Dr.
Gade-Pulido's report, there were some light-duty jobs which relator could perform.
Accordingly, there is some evidence supporting the commission's conclusion that relator
could do light work.
No. 16AP-361                                                                             4

       {¶ 10} On review of the magistrate's decision, an independent review of the record,
and due consideration of relator's objection, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
relator's objection to the magistrate's decision and adopt the magistrate's decision as our
own, including the findings of fact and conclusions of law contained therein. Accordingly,
the requested writ of mandamus is hereby denied.
                                                                     Objection overruled;
                                                               writ of mandamus denied.

                     SADLER and LUPER SCHUSTER, JJ., concur.
No. 16AP-361                                                                            5

                                       APPENDIX


                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


State ex rel. Dominic J. Falgiani,           :

               Relator,                      :

v.                                           :                   No. 16AP-361

Industrial Commission of Ohio                :               (REGULAR CALENDAR)
and
Altronic Inc.,                               :

               Respondents.                  :



                          MAGISTRATE'S DECISION

                              Rendered on October 25, 2016



               Heller, Maas, Moro & Magill Co., L.P.A., Joseph A. Moro,
               and Patrick J. Moro, for relator.

               Michael DeWine, Attorney General, and Shawn P. Omen, for
               respondent Industrial Commission of Ohio.


                                      IN MANDAMUS

       {¶ 11} Relator, Dominic J. Falgiani, 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 his application for permanent total
disability ("PTD") compensation, and ordering the commission to find that he is entitled
to that compensation.
Findings of Fact:
       {¶ 12} 1. Relator has sustained two work-related injuries, the most significant
occurring on August 6, 2008. Relator's workers' compensation claims have been allowed
No. 16AP-361                                                                              6

for the following conditions: "claim number 08-357743 has been allowed for: bilateral
shoulder sprain; bilateral shoulder impingement; depressive disorder; muscle strain to
the right groin. Claim number 03-312446 has been allowed for: lumbosacral sprain."
       {¶ 13} 2. Relator has not worked since the date of the second injury and
underwent shoulder surgery in 2009.
       {¶ 14} 3. Relator filed an application for PTD compensation on November 2, 2015.
According to his application, relator was 58 years of age, had graduated from high school,
and was able to read, write, and perform basic math. Relator indicated that he began
receiving social security retirement in the amount of $1,147 per month in February 2013.
Relator's work experience included work in food service at a hospital, retail sales as an
owner/operator of a wine shop, and as a shipper/production worker for the employer of
record.
       {¶ 15} 4. A psychological evaluation was performed by Robert L. Byrnes, Ph.D. In
his March 30, 2015 report, Dr. Byrnes opined that relator's psychological condition had
reached maximum medical improvement ("MMI"), and that he had a moderate level of
impairment in activities of daily living, social functioning, concentration, persistence and
pace, as well as deterioration or decompensation in work-like settings. Dr. Byrnes opined
that relator had a 30 percent whole person impairment, that his "depression, reduced
motivation, social withdrawal, lack of confidence and poor stress tolerance all combine to
make successful return to work highly improbable."
       {¶ 16} 5. Dean J. DePerro, D.O., examined relator for his allowed physical
conditions. In his March 30, 2015 report, Dr. DePerro noted that relator had severe
limitations of his ability to use his upper extremities and that he had difficulty remaining
in a seated or standing position for more than 10 to 20 minutes at a time because of groin
pain. Dr. DePerro noted his physical findings upon examination and opined that relator
was permanently and totally disabled.
       {¶ 17} Dr. DePerro completed a physical capacities evaluation noting that relator
could sit for one hour at a time and for three hours in an eight-hour day, but could neither
stand nor walk; occasionally lift or carry up to five pounds, had limitations regarding
pushing/pulling activities with his hands; and could occasionally reach and continuously
flex/rotate his neck.
       {¶ 18} 6. A psychological evaluation was performed by Marian Chatterjee, Ph.D.
In her December 29, 2015 report, Dr. Chatterjee identified the medical records which she
No. 16AP-361                                                                               7

reviewed and opined that relator had a mild impairment concerning his activities of daily
living, as well as concentration, persistence and pace, and a moderate impairment with
regards to social functioning and adaptation. She further opined that relator had a 19
percent whole person impairment and that he would be able to work at a low stress job
with minimal contact with others.
       {¶ 19} 7. Karen Gade-Pulido, M.D., examined relator for his allowed physical
conditions.   In her January 5, 2016 report, Dr. Gade-Pulido identified the allowed
conditions in relator's claim, as well as her physical findings upon examination, and
specifically noted that impingement tests were negative. Thereafter, Dr. Gade-Pulido
opined that relator's allowed physical conditions had reached MMI and that he was able
to perform light-duty work provided he avoid overhead or repetitive use of his upper
extremity. She concluded her report, stating:
               Mr. Falgiani is at MMI relative to the allowed conditions. He
               has received extensive treatment for these conditions over
               the years since his injuries and additional treatment at this
               time is not likely to result in a fundamental functional or
               physiological change in his allowed conditions. He reports
               significant impairment relative to his shoulders primarily,
               however his physical examination today demonstrates fairly
               unremarkable findings, aside from reduced range of motion,
               most notable in the more symptomatic right shoulder. His
               strength, including that of the shoulder girdle, is normal, and
               there is no evidence of muscle atrophy that would indicate
               significant loss of function. While he should avoid repetitive
               or overhead use of the upper extremities, his current history
               and examination findings do not preclude the use of his arms
               for a light physical demand category of work.

       {¶ 20} 8. The vocational evidence in the record includes the following: (1) the
December 22, 2009 Ohio Bureau of Workers' Compensation ("BWC") vocational
rehabilitation closure report which indicated that during physical therapy/work
conditioning, relator began having significant pain at the sight of his hernia repair (a non-
work related condition), and his file was "closed due to medical instability of a non-work-
related medical condition;" (2) the July 11, 2013 letter from CareWorks indicating that
relator had been referred for vocational rehabilitation services; however, because they
were "unable to contact [him] to confirm interest in Vocational Rehabilitation services,"
relator was deemed not currently ready for vocational rehabilitation services; (3) the
November 12, 2013 letter from CareWorks again finding that relator was currently not
No. 16AP-361                                                                                8

ready for vocational rehabilitation services because they had been unable to contact him
to confirm his interest in those services; (4) the August 20, 2014 BWC vocational
rehabilitation closure report indicating that relator's vocational rehabilitation file was
being closed because he did not feel he was a candidate for even part-time employment;
(5) the February 19, 2015 letter from CareWorks informing relator that his doctor, "Dr.
Enyeart has provided limitations for only being []able to sit stand and walk for 1 hour
each day;" and (6) the July 13, 2015 letter from CareWorks informing relator that his
rehabilitation file was being closed due to "[l]ack of plan potential."
       {¶ 21} 9. Relator submitted an employability assessment prepared by Shannon C.
Valentine MRC, CRC. In her March 3, 2016 report, Valentine administered various
testing indicating that relator's general educational skills were fair for activities of daily
living, but would fall short of those required for formal retraining for a more skilled
position within his physical limitations, that he had considerable difficulty when
attempting to perceive tabular material, observe differences in copies, or proofread, would
not be a viable candidate for entry-level, sedentary, clerk-related work, and that he was
unable to complete the Minnesota Dexterity Test due to pain in his right and left
shoulders. Assuming that he could perform sedentary work, Valentine opined that relator
had neither marketable nor transferable skills given his past relevant work history and
current limitations. Valentine indicated that relator did not appear to be able to perform
light-duty work as indicated by Dr. Gade-Pulido, and that he did not have the physical
tolerance to engage in competitive employment even on a part-time basis.
       {¶ 22} 10. The statement of facts prepared following the submission of relator's
application notes the following other relevant factors:
               Vocation evaluation report completed on 01-30-2015.
               Medical history includes hypogonadism, hyperlipidemia,
               osteoarthritis, avascular necrosis of bone of hip and a
               compression fracture to lumbar back due to roller coaster
               accident in 10/2000. Legal history includes a DUI in 1996
               and attendance to a Alcohol Anonymous program. Injured
               Worker admits to using marijuana on a recreational basis.
               Injured Worker and his spouse also own 3 rental properties
               that they are responsible to make repairs and upkeep on.

       {¶ 23} 11. Relator's application for PTD compensation was heard before a staff
hearing officer ("SHO") on March 17, 2016. The SHO relied on the medical reports of Drs.
No. 16AP-361                                                                                9

Gade-Pulido and Chatterjee, and then addressed the non-medical disability factors
finding that relator's age, education, and prior work experience to be positive, stating:
               The Staff Hearing Officer finds that the Injured Worker is 58
               years of age, which is considered to be a person of middle
               age. The Injured Worker's age is a neutral factor for his
               potential for re-employment. In analyzing this factor, the
               Staff Hearing Officer, finds that the Injured Worker has
               approximately seven years in the workforce.

               The Staff Hearing Officer finds that the Injured Worker's
               education is a positive factor in the Injured Worker's
               potential for re-employment. The Injured Worker has a high
               school education graduating from Girard High School in
               1975. The Staff Hearing Officer finds that the Injured
               Worker's ability to obtain his high school education does
               provide him with the necessary skills to obtain basic entry-
               level work. In addition, the record indicated that [] the
               Injured Worker attended business management and
               accounting classes at ITT Technical Institute in 1989. The
               Staff Hearing Officer finds that this level of education
               demonstrates the Injured Worker's ability to acquire and
               apply this knowledge.

               The Staff Hearing Officer finds that the Injured Worker's
               work experience is also a positive factor in his potential for
               re-employment. The Injured Worker's reported work
               experience on the IC-2 application consisted of four former
               positions of employment as a food service worker for a
               hospital, manager/partner of a State Liquor Store,
               owner/operator of a wine shop, and as a shipper/production
               worker for the Employer of record. The Staff Hearing Officer
               also finds per the Injured Worker's testimony at hearing that
               he owns some rental property. The Staff Hearing Officer
               finds that these former positions of employment consisted of
               positions ranging in skill from unskilled to skilled positions
               and in strength level from light to medium. The Staff
               Hearing Officer notes that he owned and operated two
               businesses per the IC-2 application, and in one of these
               positions, he managed four employees. The Staff Hearing
               Officer also finds that the Injured Worker's length of
               employment, particularly with the Employer of record, for
               nine years demonstrates his strong work ethic.

               The Injured Worker also held positions which provided him
               with decision-making skills and interpersonal skills in
               dealing with others particularly in his employment as the
               owner/operator of the State Liquor Store in which he
               indicated that he managed four employees. Based upon these
No. 16AP-361                                                                               10

               positive work characteristics, the Staff Hearing Officer finds
               that the Injured Worker's work experience is a positive factor
               in his potential for re-employment.

               The Staff Hearing Officer finds that overall, the Injured
               Worker's non-medical disability factors are positive factors
               from a vocational standpoint. The Staff Hearing Officer finds
               that the Injured Worker's non-medical disability factors of
               education and work experience are positive factors and that
               the Injured Worker can perform or can be retrained to
               perform other occupations based upon these positive factors.
               The Staff Hearing Officer concludes that the Injured
               Worker's non-medical disability factors as a whole favor re-
               employment.

       {¶ 24} 12. Relator's request for reconsideration was denied by order of the
commission mailed April 22, 2016 and re-mailed on June 23, 2016.
       {¶ 25} 13. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 26} Relator makes the following three arguments:            (1) Dr. Gade-Pulido's
restriction that he avoid overhead and repetitive use of his upper extremities, by
definition, does not constitute light-duty work; (2) the vocational report of Valentine, who
administered various vocational tests, clearly demonstrates that he is not employable; and
(3) the commission abused its discretion by finding that his vocational factors favored re-
employment without explaining how they enhance his employability.
       {¶ 27} For the reasons that follow, the magistrate finds that relator fails to
demonstrate entitlement to a writ of mandamus.
       {¶ 28} 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).
       {¶ 29} 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.
No. 16AP-361                                                                             11

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).
       {¶ 30} 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).
       {¶ 31} Relator first argues that the report of Dr. Gade-Pulido is internally
inconsistent and the fact that she restricted him to avoid overhead and repetitive use of
his upper extremity precludes an ability to perform light-duty work.
               Ohio Adm.Code 4121-3-34(B)(2)(b) states, in pertinent part:
               "Light work" means exerting up to twenty pounds of force
               occasionally, and/or up to ten pounds of force frequently,
               and/or a negligible amount of force constantly (constantly:
               activity or condition exists two-thirds or more of the time) to
               move objects. Physical demand may be only a negligible
               amount, a job should be rated light work: (1) when it
               requires walking or standing to a significant degree; or (2)
               when it requires sitting most of the time but entails pushing
               and/or pulling or arm or leg controls; and/or (3) when the
               job requires working at a production rate pace entailing the
               constant pushing and/or pulling of materials even though
               the weight of those materials is negligible.

       {¶ 32} Contrary to relator's argument, nothing in the definition of light-duty work
would require a worker to perform overhead activities. As such, to the extent he asserts
that Dr. Gade-Pulido's restriction that he avoid overhead use of his upper extremities
precludes him from performing light-duty work, relator is incorrect. Further, nothing in
No. 16AP-361                                                                             12

the definition of light-duty work requires a worker to repetitively use their upper
extremities. Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of
force frequently, does not necessarily require that those actions be performed repetitively.
Also the fact that relator might not be able to perform a full range of light-duty work does
not render Dr. Gade-Pulido's report inconsistent, nor does it invalidate the commission's
conclusion that relator is capable of performing light-duty work. See State ex rel. Wood v.
Indus. Comm., 78 Ohio St.3d 414 (1997).
       {¶ 33} Relator next argues the commission abused its discretion when it
determined that his vocational factors favored re-employment. Relator asserts that the
employability evaluation conducted by Valentine provided objective testing establishing
that his education and work experience were not positive factors, and did not provide him
with any transferrable skills.
       {¶ 34} The commission is the expert on non-medical/vocational evidence and has
the discretion to accept or reject any vocational evidence submitted. State ex rel. Jackson
v. Indus. Comm., 79 Ohio St.3d 266 (1997). To bind the commission to a rehabilitation
report's conclusions would make the rehabilitation division, and not the commission, the
ultimate evaluator of disability, contrary to State ex rel. Stevenson v. Murray, 69 Ohio
St.2d 112 (1982). See also State ex rel. Singleton v. Indus. Comm., 71 Ohio St.3d 117
(1994).
       {¶ 35} As the commission noted in its order, relator was a high school graduate
and had pursued some business management and accounting classes. The commission
determined that his prior occupations provided him with decision-making skills, as well
as interpersonal skills dealing with others, noting that he had managed a state liquor
store, owned and operated a wine shop, and currently owns some rental property. The
magistrate finds that it was not an abuse of discretion for the commission to find that his
age, education, and work experience were positive vocational factors.
       {¶ 36} Lastly, relator argues that the commission failed to explain how his positive
vocational factors enhanced his ability to become re-employed. The SHO specifically
noted that relator's high school education provided him with the necessary skills to obtain
basic entry-level work and the ability to acquire and apply knowledge. The SHO also
determined that the prior work position provided relator with decision-making skills and
interpersonal skills in dealing with others. To the extent that relator seems to argue that
the commission's order does not meet the requirements of Noll, the magistrate disagrees.
No. 16AP-361                                                                              13

The commission stated the evidence upon which it relied and provided a brief
explanation. That is all that is required.
       {¶ 37} Based on the foregoing, it is this magistrate's conclusion that relator has not
demonstrated that the commission abused its discretion when it denied his application
for PTD compensation, and this court should deny his 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).
