[Cite as State ex rel. Bergen v. Northgate Masonry, Inc., 2016-Ohio-7705.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Mark Bergen,                              :

                 Relator,                               :

v.                                                      :                       No. 15AP-923

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




                                            D E C I S I O N

                                   Rendered on November 10, 2016


                 On brief: Barron Peck Bennie & Schlemmer, LPA, and
                 Mark L. Newman, for relator.

                 On brief: Michael DeWine, Attorney General, and
                 Amanda B. Brown, for respondent Industrial Commission of
                 Ohio.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, P.J.

        {¶ 1} In this original action, relator, Mark Bergen, 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 PTD
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
No. 15AP-923                                                                              2


of fact and conclusions of law, which is appended hereto. The magistrate recommends
this court deny relator's request for a writ of mandamus.
       {¶ 3} Relator has filed the following three objections to the magistrate's decision:
              [I.] The Magistrate failed to properly evaluate whether the
              Industrial Commission complied with the requirements of
              OAC 4121-3-34(D)(1)(d) when finding that Relator
              voluntarily abandoned the workforce.

              [II.] The Magistrate incorrectly found that Relator failed to
              present medical evidence from his treating physician setting
              forth his physical capabilities between 2004 and 2014.

              [III.] The Magistrate improperly found that there is no
              medical evidence that Relator was medically unable to
              participate in vocational rehabilitation services.

       {¶ 4} We begin by examining the third objection. The magistrate stated, "[e]ven
now, relator fails to present any medical evidence contemporaneous with the time he was
referred for vocational rehabilitation and/or following the denial of his first application
for PTD compensation that would support a finding that he was medically unable to
pursue vocational rehabilitation or work. To the extent that relator asserts the SHO failed
to consider whether he was medically able to work, he failed to present any evidence."
(Appended Magistrate's Dec. at ¶ 43.)
       {¶ 5} Relator asserts this conclusion was error and points to (1) Dr. Jeffery L.
Stambough's May 21, 2010 request for temporary total disability ("TTD") compensation
(C-84), and (2) the October 19, 2010 and July 31, 2012 Managed Care Organization
Sheakley UniComp ("MCO") assessments.
       {¶ 6} The commission argues that Dr. Stambough's C-84 can not serve as
evidence of relator's physical ability to participate in vocational rehabilitation in 2012
because Ohio Adm.Code 4123-18-03(C)(3)(d) requires evidence by his physician of record
regarding job restrictions "dated not more than 180 days prior to the referral."
(Commission's Brief at 11.) According to the commission, the MCO's October 19, 2010
decision can not be used for the same reason. Finally, regarding the MCO vocational
rehabilitation screening tool ("MCO screening tool") used in 2012, the commission notes
that relator mischaracterizes the reasons vocational rehabilitation was not offered.
Relator argues it was not offered because he was not medically stable to participate in the
No. 15AP-923                                                                                 3


same.    The commission argues the form itself indicates that although relator is at
maximum medical improvement, "there are no documented restrictions within the past
180 days." (July 31, 2012 MCO screening tool at 2.) The form further states that relator is
not receiving TTD compensation, non-working wage loss, PTD compensation, loss of use
award, permanent partial impairment award and he is not a catastrophic injury, a job
retention referral, or employed by a state agency or university at the time of the injury.
        {¶ 7} We agree that Dr. Stambough's May 21, 2010 report and the MCO's
October 19, 2010 report were dated more than 180 days prior to the referral to vocational
rehabilitation on July 31, 2012 and, therefore, could not be considered by the commission
when determining whether relator was physically able to participate in vocational
rehabilitation in 2012. Ohio Adm.Code 4123-18-03(C) requires:
              Eligibility for vocational rehabilitation services.

              To be eligible for rehabilitation services the injured worker
              must meet the following criteria:

              (1) Recognized claim that is either:

              (a) A claim allowed by an order of the bureau of workers'
              compensation or the industrial commission or of its hearing
              officers with eight or more days of lost time due to a work
              related injury; or

              (b) A claim certified by a state university or state agency; or

              (c) A claim certified by a self-insuring employer.

              (2) The injured worker must have a significant impediment to
              employment or the maintenance of employment as a direct
              result of the allowed conditions in the referred claim.

              (3) The injured worker must have at least one of the following
              present in the referred claim:

              (a) The injured worker is receiving or has been awarded
              temporary total, non-working wage loss, or permanent total
              compensation for a period of time that must include the date
              of referral. For purposes of this section, payments made in
              lieu of temporary total compensation (e.g. salary
              continuation) shall be treated the same as temporary total
              compensation; or
No. 15AP-923                                                                              4


              (b) Granted a scheduled award under division (B) of section
              4123.57 of the Revised Code;

              (c) Received or awarded a permanent partial award under
              division (A) of section 4123.57 of the Revised Code and has
              job restrictions as a result of that award documented by the
              physician of record and dated not more than one hundred
              eighty days prior to the date of referral; or

              (d) Determined to have reached maximum medical
              improvement in the claim (with eight or more days of lost
              time due to a work related injury) by an order of the bureau or
              the industrial commission, or the injured worker's physician
              of record has documented in writing that the injured worker
              has reached maximum medical improvement in the claim,
              and the injured worker is not currently receiving
              compensation and has job restrictions in the claim
              documented by the physician of record and dated not more
              than one hundred eighty days prior to the date of referral; or

              (e) Is receiving job retention services to maintain
              employment or satisfies the criteria set forth in paragraph (E)
              of this rule on the date of referral; or

              (f) Sustained a catastrophic injury claim and a vocational goal
              can be established; or

              (g) Was receiving living maintenance wage loss not more
              than ninety days prior to the date of referral, has continuing
              job restrictions documented by the physician of record as a
              result of the allowed conditions in the claim, and has lost his
              or her job through no fault of his or her own.

              (4) The injured worker must not be working on the date of
              referral, with the exception of referral for job retention
              services.

(Emphasis added.)

       {¶ 8} Furthermore, we agree with the commission's characterization of the 2012
MCO screening tool that although it included a finding that relator was not medically
stable to participate in vocational rehabilitation, it ultimately concluded that relator did
not present evidence of physical restrictions "within the past 180 days." Accordingly, the
magistrate correctly concluded that when relator was referred to vocational rehabilitation
No. 15AP-923                                                                             5


in 2012, he failed to present medical evidence of his restrictions which were based on an
examination within 180 days of referral as required. Accordingly, we overrule the third
objection.
       {¶ 9} We next examine the first and second objections. Relator also argues the
magistrate failed to properly evaluate the requirements of Ohio Adm.Code 4121-3-
34(D)(1)(d) when finding that relator voluntarily abandoned the workforce and
incorrectly found that relator did not present medical evidence from his treating physician
at or near the time of removal/retirement. Ohio Adm.Code 4121-3-34 states:
             (D) Guidelines for adjudication of applications for permanent
             total disability

             The following guidelines shall be followed by the adjudicator
             in the sequential evaluation of applications for permanent
             total disability compensation:

             (1)

             ***

             (d) If, after hearing, the adjudicator finds that the injured
             worker voluntarily removed himself or herself from the work
             force, the injured worker shall be found not to be permanently
             and totally disabled. If evidence of voluntary removal or
             retirement is brought into issue, the adjudicator shall
             consider evidence that is submitted of the injured worker's
             medical condition at or near the time of removal/retirement.

(Emphasis added.)

       {¶ 10} Relator argues that the staff hearing officer's ("SHO") order of March 18,
2015, which denied relator PTD benefits, fails to specify the SHO reviewed or considered
any medical evidence of relator's medical condition at or near the time of removal.
Relator argues the SHO was required to specify what evidence was relied on in reaching
the decision to deny him benefits pursuant to State ex rel. Mitchell v. Robbins & Myers,
Inc., 6 Ohio St.3d 481 (1983). Relator further argues the SHO was required to consider
the following medical evidence when considering the question of voluntary removal: (1)
Dr. Stambough's November 17, 2010 report, and (2) Interventional Pain Specialists'
November 9, 2010 report.     In response, the commission states that relator was denied
No. 15AP-923                                                                            6


PTD on June 10, 2011 and, at that time, was found capable of sustained remunerative
employment at the sedentary level "well after the November 17, 2010 report of Dr.
Stambough." (Commission's Memo Contra at 10.) We agree and note as well that the
June 10, 2011 finding was after the November 9, 2010 Interventional Pain Specialists'
report. Furthermore, we note the SHO clearly indicated that he had reviewed and relied
on the June 10, 2011 SHO order which included consideration of Drs. Watson and
Manges' reports. Accordingly, we overrule the first and second objections.
      {¶ 11} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
the first, second, and third objections 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.
                                                                    Objections overruled;
                                                               writ of mandamus denied.

                    LUPER SCHUSTER and BRUNNER, JJ., concur.
No. 15AP-923                                                                            7


                                     APPENDIX
                        IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


State ex rel. Mark Bergen,                  :

             Relator,                       :

v.                                          :                    No. 15AP-923

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



                         MAGISTRATE'S DECISION

                               Rendered on May 20, 2016



             Barron Peck Bennie & Schlemmer, LPA, and Mark L.
             Newman, for relator.

             Michael DeWine, Attorney General, and Amanda B. Brown,
             for respondent Industrial Commission of Ohio.


                                    IN MANDAMUS

      {¶ 12} Relator, Mark Bergen, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied his application for permanent total
disability ("PTD") compensation and ordering the commission to find that he is entitled to
that compensation.
No. 15AP-923                                                                                8


Findings of Fact:
       {¶ 13} 1. Relator sustained a work-related injury on March 13, 2000 when he
suffered significant injuries to his back while employed as a brick mason.
       {¶ 14} 2. Relator was 30 years of age when he was injured and has undergone
numerous surgical procedures.
       {¶ 15} 3. Relator filed his first application for PTD compensation on January 3,
2011. At that time, his claim was allowed for the following conditions:
              Sprain lumbar region; herniated disc L3-L4; aggravation of
              pre-existing degenerative disc L4-5; aggravation of pre-
              existing degenerative disc L3-4; depressive disorder;
              postlaminectomy syndrome-lumbar.

       {¶ 16} 4. According to the statement of facts prepared at the time he filed his
second application for PTD compensation, relator last worked in April 2004.
       {¶ 17} 5. Relator's first application for PTD compensation was heard before a staff
hearing officer ("SHO") on June 1, 2011. The SHO determined that relator retained the
functional capacity to perform sedentary employment, found that his age of 41 years and
his high school education were positive vocational factors, and his work history was
neither a positive or negative vocational asset.
       {¶ 18} The SHO discussed relator's attempts at vocational rehabilitation, stating:
              The Staff Hearing Officer finds that the Injured Worker has
              attempted vocational rehabilitation only one time since
              2006. A rehabilitation closure letter dated 10/20/2010
              indicates that the Injured Worker's most recent attempt at
              vocational rehabilitation was terminated for the reason that
              the Injured Worker did not feel he was able to participate at
              this time.

              Significantly, the Staff Hearing Officer finds that the Injured
              Worker's vocational rehabilitation file was not closed due to
              medical non-feasibility. The Staff Hearing Officer finds that
              there is no medical opinion on file indicating that a physician
              deemed the Injured Worker incapable of participating in
              vocational rehabilitation in 2010.

              Rather, the report of Dr. Freeman dated 09/08/2010
              indicates that the Injured Worker would be a candidate for
              vocational rehabilitation and job retraining.
No. 15AP-923                                                                              9


              Further, the Injured Worker testified at hearing that he
              would be interested in pursuing job retraining.

              Pursuant to State ex rel. Cunningham v. Industrial
              Commission (2001) 91 Ohio St.3d 261, the Commission may,
              when considering an Application for Permanent and Total
              Disability Compensation, consider not only past employment
              skills, but also those which may reasonably be developed.
              Therefore, the Industrial Commission may consider the
              Injured Worker's lack of effort to pursue new job skills which
              may have enhanced his ability to return to work.

              The Staff Hearing Officer finds the Injured Worker's failure
              to pursue new job skills particularly significant in light of the
              fact that the Injured Worker is only 41 years old.

              Based upon these facts, the Staff Hearing Officer finds that
              the Injured Worker has the vocational ability, education,
              intellect and literacy ability to perform sedentary
              employment.

       {¶ 19} 6. Following a March 5, 2012 hearing before a district hearing officer
("DHO"), relator's workers' compensation claim was additionally allowed for the
following back condition: "spondylolisthesis degeneration L4-S1."
       {¶ 20} 7. Relator was referred for vocational rehabilitation on July 31, 2012. The
managed care organization's ("MCO") vocational rehabilitation screening tool described
relator's prior contact with vocational rehabilitation services as follows:
              Closure on 11-09-06 as the IW saw his doctor and all therapy
              was suspended. It was also recommended that he see a
              neurosurgeon and neurologist. Closure on 10-20-10 as the
              IW doesn't feel able to participate.

       {¶ 21} 8. The MCO's initial feasibility determination was that relator was not
feasible for vocational rehabilitation.
       {¶ 22} 9. In a notation dated September 18, 2012, relator was found not eligible for
vocational rehabilitation services because there were no documented restrictions from his
physician of record within the past 180 days. Specifically, the closure note indicates:
              Based upon the current information this IW is not eligible at
              this time. A review of the claim indicates he is not receiving
              TTD, NWWL, Permanent Total Compensation, Loss of Use
              Award, or Permanent Partial Impairment Award in this
No. 15AP-923                                                                           10


              claim. Although MMI, there are no documented restrictions
              within the past 180 days. Nor is he a Catastrophic Injury, a
              Job Retention referral, or employed by a state agency or
              university at the time of injury. Response sent to MCO via
              email, voc screen updated with the referral information and
              the notification letter was generated to all parties.

       {¶ 23} 10. To the extent that relator challenged the determination that he was not
eligible for rehabilitation services because there were no updated medical restrictions on
file, the administrator of the Ohio Bureau of Workers' Compensation ("BWC") affirmed
the initial determination.
       {¶ 24} 11. Relator's appeal was heard before a DHO on December 6, 2012. The
DHO affirmed the order of the administrator and found that relator did not meet his
burden of proving that he was eligible for vocational rehabilitation services because he
failed to present sufficient persuasive evidence of his documented job restrictions.
Specifically, the DHO order provides:
              It is the order of the District Hearing Officer that the Injured
              Worker's request for vocational rehabilitation services is
              denied.

              The District Hearing Officer finds that the Injured Worker
              has not met his burden of proving by a preponderance of the
              evidence that he is eligible for vocational rehabilitation
              services in this claim at this time.

              The District Hearing Officer finds that the Injured Worker
              has not fully complied with the eligibility requirements
              pursuant to Ohio Administrative Code 4123-18-03(C).
              Specifically, the District Hearing Officer finds that the
              Injured Worker has not presented sufficient persuasive
              evidence establishing that the Injured Worker has
              documented job restrictions relating to the allowed
              conditions in this claim from his physician of record dated
              not more than 180 days from the date of referral for
              vocational rehabilitation services.

              Therefore, it is the order of the District Hearing Officer that
              the Injured Worker's request for vocational rehabilitation
              services is denied.

              This decision is based on Ohio Administrative Code 4123-18-
              03.
No. 15AP-923                                                                            11


       {¶ 25} 12. Relator filed his second application for PTD compensation on
November 18, 2014. At the time, relator was 45 years of age and noted that he began
receiving Social Security retirement in the amount of $1,100 per month beginning in
2005. According to his application, relator graduated from high school in 1987 and was
able to read, write, and perform basic math. Relator indicated that he was not interested
in pursuing any further vocational rehabilitation.
       {¶ 26} 13. In support of his application, relator submitted the November 6, 2014
report of George W. Lester, Psy.D., who had been treating relator for his allowed
psychological condition. Dr. Lester opined that relator's allowed psychological condition
prevented him from working, stating:
              Mr. Bergen has not been doing well and at this point I do not
              see any likelihood of substantial improvement. He has been
              working closely with his pain management physician. We
              have tried everything that is reasonably possible in terms of
              dealing with his depression problems. His depression
              appears to be clearly related to his pain level. At this point,
              with some reluctance, I have to admit that Mr. Bergen is
              unlikely to improve. He has reached a level which would
              meet the definition of permanent and total disability under
              Ohio's Workers' Compensation law. Though he has a high
              school degree and is of average intelligence his work has
              consisted of working as a brick layer. His depression
              symptoms would significantly impair his functioning.
              Subsequently, I support his request to file for permanent
              total disability.

       {¶ 27} 14. Relator was examined by Debjani Sinha, Ph.D., on January 2, 2015. Dr.
Sinha identified the allowed conditions in relator's claim, reviewed his medical history,
identified the records which he reviewed and ultimately determined that relator had a
Class 2 mild impairment with regard to his activities of daily living, concentration,
persistence and pace, and a Class 3 moderate impairment with regard to social
functioning and adaptation. Ultimately, Dr. Sinha opined that relator had a 17 percent
whole person impairment and that he could perform part-time (3 to 4 hours of work 4
to 5 days a week) provided he have minimal contact with the public. Dr. Sinha did note
that substantial new learning was not recommended due to relator's memory weaknesses,
but his ability to utilize intact attention-concentration skill should be considered.
No. 15AP-923                                                                        12


       {¶ 28} 15. James T. Lutz, M.D., examined relator for his allowed physical
conditions. In his December 29, 2014 report, Dr. Lutz opined that relator was incapable
of performing work activities.
       {¶ 29} 16. Relator's second application for PTD compensation was heard before an
SHO on March 18, 2015. The SHO denied relator's application after finding that relator
had voluntarily removed himself from the workplace. The SHO specifically noted that,
concerning vocational rehabilitation, relator had failed to comply with Ohio Adm.Code
4123-18-03(C) because he did not present evidence of job restrictions related to the
allowed conditions, which were not more than 180 days removed from the date of the
referral for rehabilitation services. The SHO specifically quoted from the June 1, 2011
SHO order wherein the same finding was made. Specifically, the SHO's denial of PTD
compensation was explained as follows:
              After full consideration of the issue, it is the order of this
              Staff Hearing Officer that the Application for Compensation
              for Permanent Total Disability filed 11/18/2014, is DENIED.

              This Staff Hearing Officer finds that under Ohio Adm.Code
              4121-3-34(D) Guidelines for adjudication for applications of
              permanent total disability (d) states if, after hearing, the
              Adjudicator finds that the Injured Worker voluntarily
              removed himself from the work force, the Injured Worker
              shall be found not to be permanently and totally disabled. If
              evidence of a voluntary removal is brought into issue, the
              Adjudicator shall consider evidence that is submitted of the
              Injured Worker's medical condition at or near the time of the
              removal.

              This Staff Hearing Officer finds by way of history in this
              claim that an earlier Permanent Total Disability Application
              was filed on 01/03/2011. The Staff Hearing Officer finds that
              the Industrial Commission in an order issued 06/10/2011
              [sic], found that the Injured Worker was not permanently
              and totally disabled. The order in pertinent part opined "The
              Staff Hearing Officer finds that the Injured Worker's
              vocational rehabilitation file was not closed due to the
              medical non-feasibility. The Staff Hearing Officer finds there
              is no medical opinion on file indicating that a physician
              deemed the Injured Worker incapable of participating in
              vocational rehabilitation in 2010. Rather, the report of
              Andrew Freeman, M.D., dated 09/08/2010, indicated that
No. 15AP-923                                                                  13


           the Injured Worker would be a candidate for vocational
           rehabilitation and job training."

           This Staff Hearing Officer notes that the Industrial
           Commission order issued 06/10/2011 [sic], made the further
           finding "that the Injured Worker has the vocational ability,
           education, intellect and literacy ability to perform sedentary
           employment." Additionally, the Industrial Commission order
           found the "Injured Worker's failure to pursue new job skills
           particularly significant in light of the fact that the Injured
           Worker is only 41 years old" at the time of the hearing on
           06/01/2011.

           This Staff Hearing Officer, at the hearing on 03/18/2015,
           notes that since the denial of permanent total disability an
           additional condition (spondylolisthesis degeneration at L5-
           S1) [sic] was additionally added to the claim but that
           multiple low back conditions were already allowed in the
           claim and the course of medical treatment did not change.
           The Staff Hearing Officer finds that since the denial of
           permanent total disability there has been no further surgery
           and no other payment of temporary total disability
           compensation.

           This Staff Hearing Officer finds that the Injured Worker
           voluntarily removed himself from employment. The Staff
           Hearing Officer finds that the Injured Worker stated at the
           hearing that that he has not looked for employment at any
           time after 2011. The Staff Hearing Officer notes that it was
           represented that the Injured Worker has been on Social
           Security Disability since 2005. The Staff Hearing Officer
           finds that the Industrial Commission order issued
           06/10/2011 [sic] specifically found that the Injured Worker
           had the vocational ability, education, intellect and literacy
           ability to perform sedentary employment. This Staff Hearing
           Officer finds there is a lack of any indication that the Injured
           Worker sought additional employment, specifically of
           sedentary employment. Therefore, under Ohio Adm.Code
           4121-3-34(D)(d) [sic] the Staff Hearing Officer finds that the
           Injured Worker voluntarily removed himself from the work
           force and thus he shall not be found to be permanently and
           totally disabled. Therefore, the Injured Worker's Application
           for Permanent Total Disability filed 11/18/2014, is DENIED.

           This order is based on Ohio Adm.Code 4121-3-34, the
           Industrial Commission Order issued 06/10/2011 [sic],
           Industrial Commission order issued 12/11/2012 [sic] and the
No. 15AP-923                                                                               14


              reasoning as stated above. The Staff Hearing Officer notes
              that an Industrial Commission order issued 12/11/2012 [sic]
              indicated that the Injured Worker is not eligible for
              vocational rehabilitation services at this time as he has not
              fully complied with the eligibility requirements pursuant to
              Ohio Adm.Code 4123-18-03(C). The Staff Hearing Officer
              notes the order specified that the Injured Worker did not
              present sufficient persuasive evidence establishing that the
              Injured Worker has documented job restrictions relating to
              the allowed conditions in the claim from his physician of
              record dated not more than 180 days from the date of the
              Referral for Vocational Rehabilitation Services. The Staff
              Hearing Officer notes that no Appeal was taken to this
              Industrial Commission order issued 12/11/2012 [sic].

(Emphasis sic.)
       {¶ 30} 17. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 31} 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).
       {¶ 32} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
No. 15AP-923                                                                             15


       {¶ 33} 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 on and briefly explain the reasoning for its decision. State
ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991).
       {¶ 34} In his brief, relator asserts that the medical evidence clearly demonstrates
that he has been unable to work due to his low back injury, the severe conditions allowed
in his claim, and the multiple surgeries he has undergone. Relator argues that the
commission "did not consider all the evidence of Relator's medical condition when he was
found [maximum medical improvement ("MMI")] and left the workforce in November
2010." (Relator's Brief, 8.)
       {¶ 35} It is undisputed that relator's injuries and the allowed conditions in his
claim are significant. Relator underwent an L4-5 anterior fusion in 2000, an L3-5 fusion
in 2004, and in 2005, the L3-4 and L4-5 levels were repaired. Relator had a spinal chord
stimulator placed in 2007 and removed in 2008. Further, relator had a pain pump
implant placed in October 2009 and has participated in pain management.
       {¶ 36} However, although relator indicates in his brief that he left the workforce in
2010, according to his application for PTD compensation and the statement of facts
prepared prior to the hearing, he last worked in 2004, four years after his injury. Relator
has included copies of the operative reports; however, he has not presented medical notes
or other medical reports from his treating physicians indicating his physical capabilities
between 2004 and 2014 when he filed his second application for PTD compensation. The
record does include pages one, two, and five of the independent medical evaluation
prepared by Andrew Freeman, M.D., dated September 8, 2010. Dr. Freeman opined that
relator could occasionally lift/carry up to 10 pounds, occasionally stand/walk (4 to 6
hours) and frequently sit (6 to 12 hours). Dr. Freeman opined that these restrictions were
No. 15AP-923                                                                             16


permanent and that relator could work 8 hours a day for 5 days a week. This report from
Dr. Freeman predates the October 20, 2010 rehabilitation closure letter, which was cited
by the SHO in denying relator's first PTD application in 2011. As noted in the findings of
fact, the SHO found that relator's vocational rehabilitation file was not closed in 2010 due
to medical non-feasibility but because relator had failed to submit medical evidence that
he was incapable of participating in vocational rehabilitation. Further, the SHO cited the
report of Dr. Freeman noting that it indicated that relator would be a candidate for
vocational rehabilitation and job training.
       {¶ 37} As indicated in the findings of fact, relator was screened for vocational
rehabilitation again in July 2012. His file was closed on September 18, 2012 based on a
finding that he was not eligible for services at this time because there were no
documented restrictions within the past 180 days.
       {¶ 38} Ohio Adm.Code 4123-18-03 provides guidelines for referral to an
acceptance into vocational rehabilitation.      In order to be eligible for vocational
rehabilitation services, the injured worker must have reached MMI, must not currently be
receiving compensation, and must have job restrictions in the claim documented by the
physician of record dated not more than 180 days prior to the date of referral. See Ohio
Adm.Code 4123-18-03(C)(3)(d).
       {¶ 39} Ohio Adm.Code 4121-3-34 provides guidelines for the determination of
applications for PTD compensation.       Ohio Adm.Code 4121-3-34(D)(1)(d), specifically
provides:
              (D) Guidelines for adjudication of applications for
              permanent total disability The following guidelines shall be
              followed by the adjudicator in the sequential evaluation of
              applications for permanent total disability compensation:

              (1) * * *

              (d) If, after hearing, the adjudicator finds that the injured
              worker voluntarily removed himself or herself from the work
              force, the injured worker shall be found not to be
              permanently and totally disabled. If evidence of voluntary
              removal or retirement is brought into issue, the adjudicator
              shall consider evidence that is submitted of the injured
              worker's medical condition at or near the time of
              removal/retirement.
No. 15AP-923                                                                               17


       {¶ 40} Relator last worked in 2004 and has undergone numerous surgical
procedures. However, in September 2010, an independent medical evaluation by Dr.
Freeman indicated that relator was capable of performing at least sedentary employment.
Although relator was evaluated for vocational rehabilitation services, his rehabilitation file
was closed in 2010 because he did not feel he was able to participate in such services. This
does not constitute medical instability.
       {¶ 41} In June 2011, relator's first application for PTD compensation was denied
based on the finding that he was capable of performing sedentary work. Medical evidence
showed he was not only capable of work, he was also considered a good candidate for
vocational rehabilitation.     Although, relator specifically indicated an interest in
participating, he waited until July 2012 before he pursued any further vocational
rehabilitation.
       {¶ 42} When he was referred again in 2012, relator failed to present medical
evidence of his restrictions which were based on an examination within 180 days as
required.   Although relator argues that he did not voluntarily abandon the entire
workforce, it is clear that, despite medical evidence that he was physically able to
participate in vocational rehabilitation services, relator did not do so. Further, when
relator was referred, he then failed to provide medical evidence of restrictions so that he
could be properly evaluated for vocational rehabilitation services in 2012.
       {¶ 43} At oral argument, counsel asserted that relator's treating physician, Jeffrey
Stambough, M.D., opined that he was unable to work. A review of the stipulation of
evidence reveals three operative reports from Dr. Stambough (November 30, 2000,
June 28, 2005, and November 20, 2008) but no reports. Even now, relator fails to
present any medical evidence contemporaneous with the time he was referred for
vocational rehabilitation and/or following the denial of his first application for PTD
compensation that would support a finding that he was medically unable to pursue
vocational rehabilitation or work. To the extent that relator asserts the SHO failed to
consider whether he was medically able to work, he failed to present any evidence.
       {¶ 44} There is some evidence in the record on which the commission could rely to
find that relator had not attempted vocational rehabilitation which could have improved
his chances of either being re-employed or having the determination made that he was
No. 15AP-923                                                                           18


unable to work.   Because it was relator's voluntary action of not providing medical
restrictions from his treating physician, he evidenced a lack of intention to participate
and/or return to work. As such, it was not an abuse of discretion for the commission to
find that relator had failed to avail himself of vocational rehabilitation services which
could have returned him to employment and, as such, had voluntarily left the workforce.
      {¶ 45} Based on the foregoing, it is this magistrate's decision 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).
