[Cite as State ex rel. Reinhart v. Indus. Comm., 2016-Ohio-825.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel. Carl E. Reinhart,                 :

                 Relator,                               :

v.                                                      :             No. 15AP-246

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



                                            D E C I S I O N

                                      Rendered on March 3, 2016


                 On brief: Law Offices of Thomas Tootle Co., and Thomas
                 Tootle, 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

LUPER SCHUSTER, J.
        {¶ 1} Relator, Carl E. Reinhart, commenced this original action requesting a writ
of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying his application for permanent total disability ("PTD")
compensation and to enter an order finding he is entitled to that 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 the appended decision,
which includes findings of fact and conclusions of law. The magistrate recommends that
this court deny the requested writ of mandamus. Specifically, the magistrate determined
No. 15AP-246                                                                            2


that the commission did not abuse its discretion in determining that Reinhart's education
and work history were both positive vocational factors that would permit him to perform
entry-level, unskilled, light-duty work. The magistrate rejected Reinhart's argument that
this court's decision in State ex rel. Ramsey v. Indus. Comm., 10th Dist. No. 99AP-733
(Mar. 30, 2000) (affirmed without opinion in State ex rel. Ramsey v. Indus. Comm., 91
Ohio St.3d 24 (2001)), precluded the commission from denying his request for PTD
compensation without explaining why it did not accept the evidence of Reinhart's
educational limitations as reflected in a vocational evaluator's report.
       {¶ 3} Reinhart has filed the following objection to the magistrate's decision:
              The Magistrate's Decision upholding the decision of the
              Industrial Commission denying Relator's request for
              permanent total disability is in error because it ignored this
              Court's precedent in State ex rel. Ramsey v. Indus. Comm.,
              10th Dist. No. 99AP-733 (Mar. 30, 2000), affirmed by the
              Supreme Court in State ex rel. Ramsey v. Indus. Comm., [91]
              Ohio St.3d 24 (2001).

       {¶ 4} Reinhart argues that, pursuant to Ramsey, the commission abused its
discretion in denying his request for PTD compensation without discussing the evidence
showing that Reinhart was not a feasible candidate for vocational rehabilitation. The
magistrate considered and rejected this argument, finding Ramsey to be distinguishable
from the facts in this case. Contrary to Reinhart's arguments, we find the magistrate
correctly determined that his reliance on Ramsey is misplaced.
       {¶ 5} In Ramsey, the relator filed a mandamus action after the commission
denied his application for PTD compensation without discussing his significant, but
unsuccessful, rehabilitation efforts. The commission apparently relied solely on "the
objective medical findings of an unbiased examiner." Id. The vocational evidence in
Ramsey demonstrated that, despite relator's best efforts to succeed at rehabilitation, he
failed. Id. This court disagreed with the idea that reeducation and retraining efforts can
only be used "as a means to punish injured workers on those occasions when a hearing
officer feels that the injured worker has failed to exercise his or her best efforts at
rehabilitation." Id. Consequently, we held that an injured worker's unsuccessful "serious
No. 15AP-246                                                                              3


efforts at rehabilitation * * * should be considered as a factor in favor of granting PTD
compensation." Id.
       {¶ 6} Here, Reinhart did not participate in a rehabilitation program based on the
vocational evaluator's determination that he was not a good candidate for rehabilitation
services. The vocational evaluator opined that Reinhart, who had worked as a mobile-
home set-up worker for approximately 40 years, lacked transferrable skills to provide
entry into semi-skilled or skilled occupations at the sedentary strength level. According to
Reinhart, Ramsey required the commission to discuss the evaluator's determination that
rehabilitation was not feasible for him. Reinhart also asserts that his participation in
vocational testing unequivocally demonstrated his deficiencies in the areas of reading,
writing, and math. He faults the commission for not explaining its rejection of the
vocational evaluator's report establishing those deficiencies. Like the magistrate, we
disagree with these arguments. Ramsey did not prohibit the commission from denying
Reinhart PTD compensation without first discussing the fact that a vocational evaluator
tested Reinhart and determined that Reinhart was not a good candidate for rehabilitation.
Ramsey requires the commission to give appropriate weight to a relator's significant
effort to rehabilitate. But, in this case, Reinhart did not participate in a rehabilitation
program.    Therefore, we agree with the magistrate's conclusion that Ramsey is
distinguishable.
       {¶ 7} Additionally, as the magistrate noted, in denying Reinhart's request for PTD
compensation, the commission relied on the medical report of James J. Powers, M.D.,
who opined that Reinhart is capable of light-duty work, with no overhead reaching or
lifting. The commission also determined that Reinhart possesses skills that would be
transferrable to light-duty work. Contrary to Reinhart's suggestion, unrefuted evidence of
his limited or even marginal education level did not require the commission to find that
he is permanently and totally disabled. Because the commission is the expert on the
vocational or nonmedical factors in a PTD compensation determination, State ex rel.
Jackson v. Indus. Comm., 79 Ohio St.3d 266, 270-71 (1997), it was within the
commission's authority to evaluate the significance of the evidence of Reinhart's strong
work history and his limited ability to read, write, and perform basic math. Therefore, the
commission did not abuse its discretion in resolving that relator's education and work
No. 15AP-246                                                                              4


history were positive vocational factors which would permit him to perform entry level,
unskilled, light-duty work.
       {¶ 8} Following our independent review of the record pursuant to Civ.R. 53, we
find that the magistrate correctly determined that Reinhart is not entitled to the requested
writ of mandamus. The magistrate properly applied the pertinent law to the salient facts.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein. We therefore overrule Reinhart's objection to
the magistrate's decision and deny his request for a writ of mandamus.
                                                                      Objection overruled;
                                                                writ of mandamus denied.

                              KLATT and SADLER, JJ., concur.
No. 15AP-246                                                                             5


                                          APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

State of Ohio ex rel. Carl E. Reinhart,       :

              Relator,                        :

v.                                            :                   No. 15AP-246

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



                          MAGISTRATE'S DECISION

                              Rendered on November 24, 2015



              Law Offices of Thomas Tootle, and Thomas Tootle, for
              relator.

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


                                      IN MANDAMUS

       {¶ 9} Relator, Carl E. Reinhart, 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-246                                                                              6


Findings of Fact:
       {¶ 10} 1. Relator has sustained three work-related injuries during the course of his
employment with Greenlawn Companies, Inc., and his claims have been allowed for the
following conditions:
                CLAIM NO. 09-364837

                ALLOWED: CERVICAL           STRAIN/SPRAIN;       THORACIC
                STRAIN/SPRAIN.

                CLAIM NO. 10-313967

                ALLOWED: HEAD CONTUSION;                 THORACIC BACK
                CONTUSION; LEFT SHOULDER                 SPRAIN; SPRAIN
                LUMBAR REGION.

                CLAIM NO. 12-301078

                ALLOWED: RIGHT LONG HEAD BICEPS TEAR; RIGHT
                SUPRASPINATUS TEAR; RIGHT SUBSCAPULARIS TEAR.

       {¶ 11} 2. Relator has not returned to work since January 3, 2012, the date of the
third injury.
       {¶ 12} 3. In January 2014, relator was referred for vocational rehabilitation
through Greenlawn's Managed Care Organization ("MCO").             Jeffrey R. Berman, the
vocational rehabilitation case manager, sent a letter to relator's treating physician, Young
Soon Lee, M.D., notifying him of the referral. In his initial rehabilitation assessment,
dated February 14, 2014, Mr. Berman reviewed the Medco-14, which Dr. Lee had
provided:
                Dr. Lee provided a MEDCO-14 with temporary restrictions
                dated January 8, 2014. An expiration date is not noted on
                the form. Dr. Lee restricted lifting to ten pounds
                occasionally. Mr. Reinhart is not able to reach or lift
                overhead. He is also totally restricted from using a keyboard.
                Hours of work were noted to be two to three hours per day
                for twelve hours per week. Mr. Reinhart is allowed to
                perform simple grasping and repetitive activities with both
                hands. Sitting is allowed for two hours at one time. Standing
                and walking can be performed up to one half hour at one
                time. Mr. Reinhart's functional limitations do not meet the
                basic requirements of sedentary work as defined in the
No. 15AP-246                                                                                7


               Dictionary of Occupational Titles published by the US
               Department of Labor.

       {¶ 13} Mr. Berman noted that relator had begun receiving social security disability
benefits in November 2013 and recommended a vocational evaluation to explore whether
or not relator was a good candidate for vocational rehabilitation.
       {¶ 14} 4. Eric W. Pruitt, a vocational evaluator, met with relator on March 15,
2014. Mr. Pruitt administered various tests and noted that relator's scores were well
below average for reading, spelling, and math computation when compared to adults his
age, and that his vocational aptitude scores were very low. Mr. Pruitt concluded that
relator's aptitude scores were below the level required for the performance of his past
work duties as specified by the Dictionary of Occupational Titles. In conducting the
transferrable skills analysis, Mr. Pruitt based his analysis on a residual functional capacity
for performing sedentary strength work. As such, occupations that required lifting or
carrying more than ten pounds, and which required occasional, frequent or continuous
postural activities, were eliminated from the search. Ultimately, Mr. Pruitt concluded that
relator did not have any transferrable skills to provide entry into semi-skilled or skilled
occupations at the sedentary strength level. Based on the overall results of his vocational
evaluation, Mr. Pruitt concluded that relator was not a feasible candidate for vocational
rehabilitation services.
       {¶ 15} 5. Based on Mr. Pruitt's evaluation, Mr. Berman closed relator's vocational
rehabilitation file, stating:
               Carl Reinhart was assigned to this case manager on
               January 22, 2014. Initial contact occurred on January 24,
               2014 and the initial assessment was conducted on
               January 29, 2014. Mr. Reinhart reported a lengthy work
               history in the set-up and transportation of mobile homes.
               His right shoulder injury resulted in essentially sedentary
               work activity restrictions from Dr. Lee. The most recent
               MEDCO-14 was dated January 8, 2014. Dr. Lee noted Mr.
               Reinhart could perform bilateral grasping and repetitive
               activity with both upper extremities. However, reaching
               above shoulder level and using a keyboard was totally
               restricted. The restrictions were marked as temporary. Dr.
               Lee noted that Mr. Reinhart could work two to three hours
               per day for up to twelve hours per week. Feasibility factors
No. 15AP-246                                                                           8


             identified during the initial assessment meeting included Mr.
             Reinhart's age of sixty-one years, limited work hours, no
             high school diploma or GED and lengthy work history in a
             single occupation or related group of occupations.

             The case manager consulted with the MCO and BWC
             regarding the feasibility issues in the case. The MCO and
             BWC agreed to schedule Mr. Reinhart for a comprehensive
             vocational evaluation. Eric Pruitt, CRC conducted the
             evaluation on March 15, 2014. Mr. Reinhart scored below the
             fifth grade level in sentence comprehension, spelling and
             math computation. Mr. Reinhart scored in the low to very-
             low range on all the aptitude tests. The transferable skills
             analysis did not identify any occupations for placement
             within Mr. Reinhart's worker trait profile. Based on the
             results of the vocational testing and transferrable skills
             analysis Mr. Pruitt stated in the report that Mr. Reinhart was
             not a good candidate for re-training. Therefore, the case
             manager recommended the rehabilitation file be closed
             because Mr. Reinhart was not a good candidate for
             vocational rehabilitation. Mr. Reinhart does not have access
             to occupations in the labor market due to his functional
             limitations, poor academic achievement and aptitude levels,
             and inability to be trained for work within his cognitive and
             physical capabilities.

      {¶ 16} 6. Relator submitted his PTD application on April 29, 2014.          In his
application, relator noted that he was receiving social security disability payments, the
highest grade of school he completed was tenth grade, and he had not received his GED
nor had he completed any trade or vocational training. Relator indicated that he could
read, write, and perform basic math, but not well.
      {¶ 17} 7. Relator was examined by Cynthia Taylor, D.O. In her April 17, 2014
report, Dr. Taylor identified the allowed conditions in relator's claims, provided her
physical findings upon examination, and concluded that relator should be awarded PTD
compensation, stating:
             Carl E. Reinhart has suffered injuries to his right shoulder.
             He has significant limitations in right shoulder range of
             motion and right shoulder strength. He is limited to lifting
             5 lbs with his right upper extremity and is unable to do any
             overhead lifting.
No. 15AP-246                                                                              9


             As a result of his injuries to his cervical, thoracic and lumbar
             spine, he has very limited range of motion and chronic
             cervical, thoracic and lumbar pain. His restrictions are such
             that he is unable to squat or kneel; he is unable to lift greater
             than 10 lbs and needs the freedom to sit and stand as-
             needed.

             As a result of his three industrial injuries listed above, it is
             my opinion that he should be awarded permanent and total
             disability.

       {¶ 18} 8. Relator was also examined by James J. Powers, M.D. In his August 12,
2014 report, Dr. Powers identified the allowed conditions in relator's claims, provided his
physical findings upon examination, concluded that relator had a nine percent whole body
impairment, and could perform light-duty activity with no overhead reaching or lifting.
       {¶ 19} 9. Relator's application for PTD compensation was heard before a staff
hearing officer ("SHO") on October 2, 2014 and was denied. The SHO relied on the
medical report of Dr. Powers to conclude that relator had the ability to perform
employment within the light physical range and noted that there were many unskilled
entry-level sedentary jobs which could be performed without any transferrable skills,
without a high school education, and which did not require participation in a
rehabilitation program.
       {¶ 20} The SHO considered relator's age of 61 years to be a neutral vocational
factor and found his education and prior work history to be positive vocational factors,
stating:
             The Injured Worker completed the ninth grade level of
             education, and three days of the tenth grade. In addition, the
             Injured Worker obtained his Chauffeur's License, and
             eventually his Commercial Driver's License. The Staff
             Hearing Officer finds the Injured Worker's level of education
             is overall deemed as a positive vocational factor. The Injured
             Worker is able to read, write, and perform basic math,
             although he indicates on his IC-2 application that he is able
             to read, write, perform basic math "not well." The Staff
             Hearing Officer finds that the Injured Worker's educational
             level, in combination with the ability to read, write, and
             perform basic math, would assist him in obtaining and
             performing entry-level unskilled types of employment. These
             are jobs that do not require any transferable skills, or even a
No. 15AP-246                                                                            10


             high school education. Rather, these jobs can be learned and
             performed by individuals while on the job and within a
             matter of days.

             The Injured Worker's entire work history was identified as
             being continuous and uninterrupted employment. The
             Injured Worker, for his entire career starting at age 18, was
             in the mobile home business. This involved driving a semi-
             truck, and moving mobile homes to their eventual location.
             It involved setting up trailers, mostly in Ohio, but his current
             Employer of Record also involved locating mobile homes at
             other places throughout the United States. He testified it also
             involved paperwork and that he was capable of performing
             all those duties with no problem. He had a log book to record
             mileage and time involved in transportation. He also
             recorded the paperwork necessary in delivery of the mobile
             homes. He filled out his time card and kept track of the
             hours of time spent on the road. Although he did not have a
             computer, the Staff Hearing Officer finds that his continuous
             and uninterrupted prior work history is overall viewed as a
             positive vocational asset. He has obviously demonstrated the
             ability to obtain and maintain employment. He has
             demonstrated the ability to complete annual commercial
             driver's license requirements over the years, including
             completing the air brakes test when it came about. He had
             been grandfathered into the CDL licensure because he
             already had a chauffeur's license prior to the necessity of a
             commercial driver's license. He said he was able to complete
             this portion of the air brakes section of the CDL license by
             "reading the book." He was capable of driving over the road,
             keeping log books, and other records necessary in the
             portage and delivery of mobile homes. This demonstrated
             work ability was performed in settings similar to some of the
             job types available within the light physical range.

      {¶ 21} 10. The SHO ultimately concluded that relator was capable of performing
within the light work limitations, no overhead reaching or lifting, and that he possessed
skills that would be transferrable to other types of light-duty work, and was not
permanently and totally disabled.
      {¶ 22} 11. Thereafter, relator filed the instant mandamus action in this court.
No. 15AP-246                                                                             11


Conclusions of Law:
       {¶ 23} Relator argues that the commission abused its discretion when it
determined that his ninth grade education was a positive vocational factor when the
vocational evidence indicated that he tested well below that grade level. Relator also
asserts the commission was required to discuss his efforts at rehabilitation.
       {¶ 24} For the reasons that follow, the magistrate disagrees with relator's assertion
and recommends that this court deny relator's request for a writ of mandamus.
       {¶ 25} 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).
       {¶ 26} 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).
       {¶ 27} The vocational report to which relator directs this court's attention was
prepared by Eric Pruitt who administered various tests indicating relator was below
No. 15AP-246                                                                              12


average for reading, spelling, and math. Mr. Pruitt also concluded that relator lacked
transferrable skills for sedentary work and was not a feasible candidate for vocational
rehabilitation services. In reaching this conclusion, Mr. Pruitt relied on the results of his
testing and Dr. Lee's Medco-14, which restricted relator to lifting and carrying no more
than ten pounds, indicated that he was unable to type and use a keyboard, that he could
sit for 2 hours, walk for 30 minutes, and stand for 30 minutes during an 8-hour day with a
break, and that he was only able to work a total of 12 hours a week.
       {¶ 28} In finding that he could perform some sustained remunerative employment,
the commission relied on the medical report of Dr. Powers who concluded that relator
could perform light-duty work provided there was no overhead reaching or lifting. To the
extent that Mr. Pruitt's vocational evaluation confined itself to whether or not relator was
able to perform sedentary work, Mr. Pruitt did not consider whether or not relator could
perform light-duty work from a vocational standpoint.
       {¶ 29} Relator points to Ohio Adm.Code 4121-3-34(B)(3)(b), which provides, in
pertinent part:
              "Education" is primarily used to mean formal schooling or
              other training which contributes to the ability to meet
              vocational requirements. The numerical grade level may not
              represent one's actual educational abilities. If there is no
              other evidence to contradict it, the numerical grade level will
              be used to determine educational abilities.

       {¶ 30} Relator specifically points out that the commission's order notes he
completed the ninth grade and asserts that, pursuant to sub-section (b), the numerical
grade level will be used to determine educational abilities unless there is other evidence to
contradict it. In the present case, relator asserts that the testing performed by Mr. Pruitt
contradicts his ninth grade education and his education should be classified as marginal.
       {¶ 31} Marginal and limited education are defined in Ohio Adm.Code 4121-3-
34(B)(3)(b) as follows:
              "Marginal education" means sixth grade level or less. An
              injured worker will have ability in reasoning, arithmetic, and
              language skills which are needed to do simple unskilled types
              of work. Generally, formal schooling at sixth grade level or
              less is marginal education.
No. 15AP-246                                                                               13


              (iii) "Limited education" means seventh grade level through
              eleventh grade level. Limited education means ability in
              reasoning, arithmetic and language skills but not enough to
              allow an injured worker with these educational qualifications
              to do most of the more complex job duties needed in semi-
              skilled or skilled jobs. Generally, seventh grade through
              eleventh grade formal education is limited education.

       {¶ 32} Relator argues that the commission "offered no explanation as to why it
failed to address unbiased and wholly un-contradicted evidence." (Relator's brief, 12.)
       {¶ 33} Based on the above definitions, injured workers with either a marginal or
limited education are capable of performing unskilled work. The commission did not
simply accept relator's grade level as evidence he could perform some sustained
remunerative employment. The commission specifically found that relator's education,
along with his ability to obtain a chauffer's license and a commercial driver's license, and
his self-reported ability to read, albeit not well, would assist him in performing entry-level
unskilled types of employment which do not require any transferrable skills or even a high
school education. The magistrate finds that the commission's determination did not
constitute an abuse of discretion in this regard.
       {¶ 34} Further, when evaluating relator, Mr. Pruitt relied on a medical report
which found that relator was only capable of performing sedentary work for no more than
12 hours a week and was unable to use a keyboard. All of Mr. Pruitt's findings were based
on his assumption that this was the highest exertional level which relator could perform.
However, in denying his application for PTD compensation, the commission relied on the
medical report of Dr. Powers who found that relator was capable of performing light-duty
work with the restriction of no reaching overhead. This is a significant distinction in and
of itself since jobs which require a person be able to perform light-duty work or above can
often be performed by a worker whose educational aptitude is limited or even marginal.
Given this additional distinction, the magistrate finds that the commission was not
required to discuss the testing results contained in the vocational report.
       {¶ 35} Citing this court's decision in State ex rel. Ramsey v. Indus. Comm., 10th
Dist. No. 99AP-733 (Mar. 30, 2000), affirmed by the Supreme Court of Ohio in State ex
rel. Ramsey v. Indus. Comm., 91 Ohio St.3d 24 (2001), relator argues that, at the very
No. 15AP-246                                                                               14


least, the commission was required to explain why it chose not to accept the evidence of
relator's educational limitations.   Robert Ramsey filed a mandamus action after the
commission denied his application for PTD compensation in an order which failed to
discuss his efforts at rehabilitation and instead, appeared to rely solely upon "the objective
medical findings of an unbiased examiner." Finding that it was unfair that re-education
and retraining efforts can only be used as a means to punish injured workers on those
occasions when a hearing officer feels the injured worker has failed to exercise their best
efforts at rehabilitation, this court found that "where an injured workers [sic] has made
serious efforts at rehabilitation but has not succeeded should be considered as a factor in
favor of granting PTD compensation, especially where, as here, the Bureau of Workers'
Compensation's own reports demonstrated a failure to be rehabilitated despite the injured
worker's best efforts." Id. at 1.
       {¶ 36} Relator argues that, like Ramsey, his efforts at rehabilitation could only be
characterized as positive and, as such, the commission's failure to mention or address this
pertinent information constituted an abuse of discretion.
       {¶ 37} The magistrate finds that relator's factual situation is not similar to the
situation in the Ramsey case. Ramsey had participated in a rehabilitation program for
several weeks. Serious efforts were made to actually rehabilitate and retrain him. In the
present case, relator was evaluated one time, but did not participate in a rehabilitation
program, admittedly because the evaluator determined that he was not a good candidate
for rehabilitation. The fact that relator was evaluated one time and was found not to be a
feasible candidate is not a fact which the commission is required to discuss.
       {¶ 38} The commission is the exclusive evaluator of the vocational evidence and is
not bound by the determinations made by a vocational evaluation. State ex rel. Jackson
v. Indus. Comm., 79 Ohio St.3d 266 (1997).
       {¶ 39} Based on the foregoing, it is this magistrate's decision that the commission
did not abuse its discretion when it determined that relator's education and work history
were both positive vocational factors which would permit him to perform entry-level,
No. 15AP-246                                                                             15


unskilled, light-duty work, and 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).
