[Cite as State ex rel. Pilarczyk v. Geauga Cty., 2018-Ohio-1478.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio ex rel.                                 :
Joshua N. Pilarczyk,
                                                      :
                 Relator,
                                                      :
v.                                                                  No. 17AP-174
                                                      :
Geauga County, Sarah Morrison,                                 (REGULAR CALENDAR)
Administrator, Ohio Bureau of Workers'                :
Compensation and The Industrial
Commission of Ohio,                                   :

                 Respondents.                         :


                                             D E C I S I O N

                                       Rendered on April 17, 2018


                 On brief: Dworken & Bernstein Co., LPA, and Stacy M.
                 Callen, for relator.

                 On brief: Susan T. Wieland, Assistant Prosecuting Attorney,
                 Geauga County Prosecutor's Office, for respondent Geauga
                 County.

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

                                    IN MANDAMUS
                      ON OBJECTION TO THE MAGISTRATE'S DECISION
DORRIAN, J.
        {¶ 1} Relator, Joshua N. Pilarczyk, has filed a request for a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate the May 17,
2016 order of its staff hearing officer ("SHO") that denies his application for permanent
total disability ("PTD") compensation, and to enter an order granting that compensation.
No. 17AP-174                                                                              2
       {¶ 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
issue a writ of mandamus ordering the commission to vacate the May 17, 2016 order
denying the application for PTD and to enter a new order adjudicating the PTD application.
       {¶ 3} The commission has filed the following objection to the magistrate's decision:
               The Magistrate erred in finding that the report of Dr.
               Gruenfeld fails to provide "some evidence" upon which the
               Industrial Commission could rely to reach its decision.

       {¶ 4} As explained in the magistrate's decision, the SHO denied relator's PTD
request, relying on the report of Dr. Bina Mehta regarding relator's physical conditions and
the report of Dr. Kenneth Gruenfeld regarding relator's psychological conditions. The
magistrate concluded Dr. Gruenfeld's report was equivocal and, therefore, it must be
eliminated from evidentiary consideration and could not constitute some evidence to
support the SHO's determination of relator's residual functional capacity.
       {¶ 5} This court has previously explained that the commission must evaluate an
injured worker's residual functional capacity in adjudicating a PTD application:
               In determining whether relator is capable of performing
               sustained remunerative employment, the commission shall
               first consider the medical evidence and determine relator's
               residual functional capacity. Ohio Adm.Code 4121-3-34(B)(4).
               After consideration of the medical evidence, if the commission
               determines that relator is unable to return to his former
               position of employment, but may be able to engage in sustained
               remunerative employment, the commission shall then consider
               nonmedical and vocational factors, known as the Stephenson
               factors, found at Ohio Adm.Code 4121-334(B)(3). See Ohio
               Adm.Code 4121-3-34(D)(2)(b) and (c); see also State ex rel.
               Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167; State
               ex rel. Corona v. Indus. Comm. (1998), 81 Ohio St.3d 587; and
               State ex rel. Nikoli v. Indus. Comm., 10th Dist. No. 08AP-349,
               2009-Ohio-243, ¶ 5-6.

State ex rel. Seitaridis v. Delta Plating, Inc., 10th Dist. No. 10AP-494, 2011-Ohio-3593,
¶ 10. See also State ex rel. Nickoli v. Indus. Comm., 10th Dist. No. 08AP-349, 2009-Ohio-
243, ¶ 30 ("The commission must make a clear indication of residual functional capacity.").
       {¶ 6} The commission cannot rely on a medical opinion that is equivocal or
internally inconsistent. State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-
No. 17AP-174                                                                                3
Ohio-6036, ¶ 11, citing State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649 (1994);
State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445 (1994). "Equivocation disqualifies
an opinion from consideration and occurs 'when a doctor repudiates an earlier opinion,
renders contradictory or uncertain opinions, or fails to clarify an ambiguous statement.' "
George at ¶ 15, quoting Eberhardt at 657. The commission argues the magistrate erred by
concluding Dr. Gruenfeld's report was equivocal on the issue of whether relator was capable
of employment. However, having reviewed the record and the magistrate's decision, we
agree with the magistrate's conclusion that Dr. Gruenfeld's response was ambiguous as to
whether relator was unable to return to his former position of employment or unable to
hold any position of employment. Because this ambiguity was not resolved, Dr. Gruenfeld's
report could not constitute some evidence to support the commission's conclusion
regarding the issue of relator's residual functional capacity.
       {¶ 7} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of the commission's objection, we find the magistrate has
properly determined the pertinent facts and applied the appropriate law. We therefore
overrule the commission'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, we grant a writ of mandamus ordering the commission to vacate the May 17,
2016 order of the SHO denying relator's application for PTD and, in a manner consistent
with this court's decision and the magistrate's decision incorporated herein, enter a new
order adjudicating the PTD application.
                                                                         Objection overruled;
                                                                 writ of mandamus granted.

                                  TYACK, J., concurs.
                              LUPER SCHUSTER, J., dissents.


LUPER SCHUSTER, J., dissenting.
       {¶ 8} Because I disagree with the majority's conclusion that Dr. Gruenfeld's report
is equivocal and cannot be used to constitute some evidence to support the SHO's
determination of relator's residual functional capacity, I respectfully dissent.
       {¶ 9} In adopting the magistrate's decision, the majority concludes the commission
abused its discretion when it relied on Dr. Gruenfeld's report because it deems Dr.
Gruenfeld's report to be equivocal or internally inconsistent. More specifically, the majority
No. 17AP-174                                                                                 4
considered Dr. Gruenfeld's response to the second query in his report to be ambiguous,
stating Dr. Gruenfeld failed to clarify whether his conclusion that relator's "problems with
distractibility and motivation inhibit his ability to return to work at this time" applies only
to relator's potential return to his former position of employment or whether it would apply
to his potential return to any sustained remunerative employment. (Mag.'s Decision at
¶ 12.)
         {¶ 10} Unlike the majority, I would not find Dr. Gruenfeld's response to the second
query in his report to be ambiguous. The question asks, specifically, whether the injured
worker can return to his former position of employment. In the first sentence of his
response, Dr. Gruenfeld answers this question unequivocally: relator cannot return to his
former position of employment due to his mental health issues. The subsequent two
sentences, when read in context of the specific question asked, explain the rationale for Dr.
Gruenfeld's conclusion to the specific question asked.
         {¶ 11} In response to a subsequent, separate query, Dr. Gruenfeld then opines
relator would be capable of performing work in a low-stress office environment. Again, I
would read this response in the context of the query to which it responded, and I would not
find it to be internally inconsistent with Dr. Gruenfeld's response to the second query.
Thus, I would conclude these responses in Dr. Gruenfeld's report serve as some evidence
for the SHO to rely on in concluding relator is not entitled to an award of PTD.
         {¶ 12} For these reasons, I would sustain the commission's objection to the
magistrate's decision, reject the magistrate's conclusions of law, and deny the requested
writ of mandamus. Because the majority has determined otherwise, I respectfully dissent.
No. 17AP-174                                                                             5

                                     APPENDIX


                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

The State ex rel. Joshua N. Pilarczyk,       :

               Relator,                      :

v.                                           :                    No. 17AP-174

Geauga County et al.,                        :               (REGULAR CALENDAR)

               Respondents.                  :


                          MAGISTRATE'S DECISION

                              Rendered on November 20, 2017


               Dworken & Bernstein Co., LPA, and Stacy M. Callen, for
               relator.

               James R. Flaiz, Geauga County Prosecuting Attorney, and
               Susan T. Wieland, for respondent Geauga County.

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


                                     IN MANDAMUS

       {¶ 13} In this original action, relator, Joshua N. Pilarczyk, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the May 17, 2016 order of its staff hearing officer ("SHO") that denies his application for
permanent total disability ("PTD") compensation, and to enter an order granting the
compensation.
No. 17AP-174                                                                            6
Findings of Fact:
       {¶ 14} 1. On February 24, 2002, relator injured his lower back while employed as a
maintenance worker for respondent Geauga County, a state-fund employer.
       {¶ 15} 2. The industrial claim (No. 02-327542) is allowed for:
               Disc herniation L4-5 and L5-S1; L5-S1 radiculopathy;
               adjustment disorder with mixed anxiety and depressed mood;
               dysthymic disorder; L3-4 herniated nucleus pulposus; L3-4
               degenerative disc disease; L4-5 degenerative disc disease; L5-
               S1 degenerative disc disease.

       {¶ 16} 3. Relator received temporary total disability ("TTD") compensation for his
allowed psychological conditions until June 15, 2015 when the commission determined that
the psychological conditions had reached maximum medical improvement ("MMI") based
on the April 28, 2015 report of psychologist Kenneth Gruenfeld, Psy.D.
       {¶ 17} 4. On April 28, 2015, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), relator was examined by Dr. Gruenfeld. In his seven-page
narrative report, Dr. Gruenfeld states the purpose of his examination and then responds to
six queries:
               Mr. Pilarczyk was referred to this examiner for a psychological
               assessment by the Ohio Bureau of Workers' Compensation to
               obtain this examiner's opinion regarding the extent of his
               psychological disability and the medical necessity and
               appropriateness of his current treatment and/or potential to
               return to work.

               ***

               [One] Has the injured worker reached a treatment
               plateau that is static or well stabilized at which you
               can expect no fundamental or psychological change
               within reasonable medical probability in spite of
               continuing medical or rehabilitation (maximum
               medical improvement)? Include rational[e] for your
               decisions.

               In looking at the totality of the evidence provided to this
               examiner, it appears Mr. Pilarczyk has achieved MMI at this
               time. According to the Summary of HPP Psych CPTS by claim,
               the [Injured Worker] has participated in 26 treatment
               sessions. This is more than the OEG Guidelines of 13-20
               treatment sessions. According to the Psychotherapy Case
               Note, dated May 20, 2014, the [Injured Worker] reports is
No. 17AP-174                                                                      7
               feeling "poorly" emotionally. He exhibits "catastrophizing"
               and negative thoughts.

               According to the Psychotherapy Case Note, dated June 4,
               2014, the [Injured Worker] reports increased problems with
               crying spells. There is no indication of treatment progress.
               Given the data before the evaluator, it is believed that the
               [Injured Worker] has achieved MMI at this time.

               [Two] Can the injured worker return to his/her
               former position of employment? If yes, are there any
               restrictions or modifications?

               The claimant's mental health issues likely do prevent him
               from returning to his former position of employment. His
               problems with depression continue to manifest including
               problems with focus and motivation. It is believed that his
               problems with distractibility and motivation inhibit his ability
               to return to work at this time.

               [Three] Please provide a summary of any functional
               limitations solely due to the psychological condition
               in this claim. In other words, please indicate the type
               of work the injured worker can perform and
               supportive rational[e] for your opinion.

               Given his current mental health issues, he is unlikely to thrive
               in a moderate to high stress job setting. He is more likely able
               to work a job in an office where there is less stress to trigger
               his depressive based condition.

               [Four] Are there any               recommendations          for
               vocational rehabilitation?

               Yes. Vocational rehabilitation is recommended at this time.
               Given his current intelligence, ability to communicate his
               needs and his responsibility in going to doctor appointments,
               it is believed that he may be able to manage a vocational
               rehabilitation program at this time.

               [Five] Is the current treatment necessary and
               appropriate for the psychological condition(s)?

               The treatment, psychotherapy and medication management,
               are appropriate for the psychological condition of the
               claimant. In terms of necessity, it is believed by this examiner
               that the injured worker has achieved MMI and is no longer
               gaining additional benefits from psychotherapy.
No. 17AP-174                                                                             8

                [Six] What are your recommendations for any
                proposed plan of treatment including expected
                length of treatment and results?

                There are no proposed changes to therapy goals or modality
                as the goals and modality are appropriate at this time. Future
                treatment should [consist] of 5 treatment sessions over 5
                months to complete treatment goals and finalize termination.

         {¶ 18} 5. Earlier, on January 9, 2015, treating physician Michael J. Kellis, D.O.,
wrote:
                I believe within a reasonable degree of medical certainty that
                this patient is permanently and totally disabled as a direct and
                proximate result of his allowed conditions in his Workers'
                Compensation Claim. I have seen Mr. Pilarczyk attempt to
                return to work numerous times, but he was unfortunately not
                able to do so. He has had epidural steroid injections, trigger
                point injections, and various forms of steroid and non-steroid
                medications, with no real relief. His work-related injuries
                prohibit him from returning to his former position of
                employment as a maintenance worker.

                In addition, his injuries prohibit him from returning to any
                gainful employment. Any standing any longer than five to 10
                minutes is painful. Any repetitive bending and stooping is also
                uncomfortable for this patient.

                I believe that Mr. Pilarczyk's condition is permanent and that
                his conditions will continue for an indefinite period of time
                without any present indication of recovery.

         {¶ 19} 6. On July 20, 2015, Dr. Kellis wrote:

                I do believe that Mr. Pilarczyk is permanently and totally
                disabled as a direct and proximate result of his allowed
                conditions in this Workers' Compensation claim. He is not able
                to perform remunerative employment due to his allowed
                conditions.

                ***

                I do believe that Mr. Pilarczyk suffers from chronic pain. It does
                affect his activities of daily living and his ability to work and
                function in a safe work environment. Mr. Pilarczyk's medical
                impairments resulting from the allowed conditions in this
                claim prohibit him from returning to his former position of
No. 17AP-174                                                                               9
               employment as a maintenance worker. I do believe that Mr.
               Pilarczyk's condition is permanent within a reasonable degree
               of medical probability and it will continue for an indefinite
               period of time without any indication of recovery.

       {¶ 20} 7. On July 20, 2015, relator filed an application for PTD compensation. In
support, relator submitted the reports of Dr. Kellis.
       {¶ 21} 8. On September 9, 2015, at the commission's request, relator was examined
by psychologist Joseph P. Pecorelli, Ph.D. Dr. Pecorelli examined only for the allowed
psychological conditions of the claim. In his 11-page narrative report, Dr. Pecorelli opined:
               Mr. Pilarczyk is a 36-year-old divorced Caucasian male who
               has not worked since September 2009. He currently resides
               with his family in his parents' home. The [Injured Worker] was
               independent and fully functional prior to his injury. The
               [Injured Worker] continues to experience emotional distress
               characterized as an Adjustment Disorder with Mixed Anxiety
               and Depressed Mood and Dysthymic Disorder. His emotional
               distress appears to be at least at a moderate level of severity
               with the [Injured Worker] continuing to experience periods of
               more severe emotional distress. The ongoing symptoms of
               emotional distress as described above would prove to be
               barriers for any return to gainful employment. It is for those
               reasons that this examiner has to conclude that the [Injured
               Worker's] allowed conditions have not changed and he has
               continued to be at Maximum Medical Improvement (MMI). In
               light of his voicing of suicidal ideation and thoughts of self
               harm, the [Injured Worker] was encouraged to resume
               supportive psychological and psychiatric intervention. He
               indicated that he was under the impression that he was no
               longer eligible for treatment since being made MMI.

       {¶ 22} 9. In early October 2015, Dr. Pecorelli completed a form captioned
"Occupational Activity Assessment, Mental & Behavioral Examination." On the form, Dr.
Pecorelli indicated by his mark "[t]his injured worker is incapable of work." In the space
provided, Dr. Pecorelli states:
               Mr. Pilarczyk's Occupational Activity Capacity is significantly
               influenced by the allowed psychological conditions or his
               emotional distress characterized as Adjustment Disorder with
               Mixed Anxiety and Depressed Mood and Dysthymic Disorder.
               These allowed psychiatric conditions have lasted over two years
               and are considered chronic according to DSM-IV criteria. From
               a psychological perspective and taking into consideration the
               [Injured Worker's] four areas of general functioning, the
               [Injured Worker] is not capable of gainful employment.
No. 17AP-174                                                                           10

       {¶ 23} 10. On October 20, 2015, an SHO mailed a "Tentative Order" granting the
PTD application. The order explains:
               After full consideration of the issue, it is the order of the Staff
               Hearing Officer that the Application for Permanent and Total
               Disability filed on 07/20/2015 be GRANTED. This order is
               based upon the Industrial Commission Specialist exam, dated
               10/07/2015, of Joseph Pecorelli, Ph.D. Dr. Pecorelli found the
               Injured Worker would not be able to perform any sustained
               remunerative employment based upon the allowed
               conditions. Permanent total disability benefits are to be paid
               from 10/07/2015. This is less any temporary total disability
               compensation paid over the same period. This starting date is
               based upon the report of Dr. Pecorelli, dated 10/07/2015.

               This Staff Hearing Officer further finds that where medical
               factors alone preclude sustained remunerative employment,
               it is not necessary to consider the Injured Worker's non-
               medical disability factors. State ex rel. Galion Mfg. Div.,
               Dresser Industries v. Haywood (1991), 60 Ohio St.3d 38.

(Emphasis sic.)

       {¶ 24} 11. Apparently, the bureau filed timely objections to the October 20, 2015
tentative order.
       {¶ 25} 12. Earlier, at the commission's request, on September 14, 2015, relator was
examined by Bina Mehta, M.D., for the allowed physical conditions of the claim. In his
four-page narrative report, Dr. Mehta opined:
               Based solely on the allowed physical conditions in this claim,
               the injured worker could perform work within the sedentary
               work capacity category. He would require an ambulatory
               assistive device as needed. He should be allowed to take breaks
               as needed. Of note, the injured worker has significant
               nonorganic findings seen on physical examination today, but
               from a physical perspective, there is no reason that he should
               not be able to perform work within the sedentary work capacity
               category with breaks as needed.

       {¶ 26} On September 14, 2015, Dr. Mehta completed a form captioned "Physical
Strength Rating." On the form, Dr. Mehta indicated by his mark that relator can perform
"sedentary work."
No. 17AP-174                                                                          11
      {¶ 27} Under "[f]urther limitations, if indicated," and in the space provided, Dr.
Mehta wrote in his own hand: "May require ambulatory assistive device. Allow breaks as
needed."
      {¶ 28} 13. Following a May 17, 2016 hearing, an SHO issued an order denying the
PTD application. Mailed June 25, 2016, the SHO's order of May 17, 2016 explains:
               This order is based upon the reports of Bina Mehta, M.D., dated
               09/14/2015, Kenneth Gruenfeld, Psy.D., dated 04/28/2015,
               and Injured Worker's non-medical disability factors.

               Dr. Mehta, who examined Injured Worker for the recognized
               physical conditions, opined Injured Worker has reached
               maximum medical improvement for the allowed physical
               conditions and assigned a 13% impairment. Dr. Mehta found
               Injured Worker could perform work within the sedentary work
               capacity category and Injured Worker would require
               ambulatory assistive device and would have to take breaks as
               needed. Dr. Mehta further opines Injured Worker
               demonstrated     significant   non-organic     findings    on
               examination, but finds from a physical perspective, no reason
               Injured Worker should not be able to perform work within the
               sedentary work category.

               Kenneth Gruenfeld, Psy.D., examined Injured Worker on
               behalf of the Bureau of Workers' Compensation, and opined
               Injured Worker has reached maximum medical improvement
               for the allowed psychological condition. Dr. Gruenfeld opines
               Injured Worker is capable of work in a low stress job and
               further recommended vocational rehabilitation.

               ***

               Based upon the opinions of Drs. Mehta and Gruenfeld, as
               accepted herein, Staff Hearing Officer finds Injured Worker's
               allowed physical and psychological conditions have reached
               maximum medical improvement and are permanent. Staff
               Hearing Officer further finds that Injured Worker's
               impairment from the allowed physical and psychological
               conditions alone is not dispositive of the application for
               permanent total disability, and therefore, consideration of and
               analysis of Injured Worker's non-medical disability factors is
               appropriate.

               Injured Worker is currently 37 years old with a high school
               diploma and two years auto tech training. Injured Worker can
               read, write and perform basic math functions. Injured Worker
               has a work history as an auto mechanic helper, laborer and
No. 17AP-174                                                                       12
               maintenance work. Injured Worker's last position of
               employment was as a maintenance worker for approximately
               nine years with the Employer of Record. Injured Worker
               performed general maintenance, performed repairs of
               equipment and possesses certification for operation of tow
               motor and other Class A CDL equipment. Injured Worker
               further was responsible for reading service manuals, preparing
               written work orders and managing a variety of work duties. The
               Injured Worker additionally possesses the ability to read
               blueprints and manage varying tasks associated with his
               reported work experience.

               In general, age refers to ones chronological age and the extent
               to which ones age affects the ability to adapt to new work
               situations. Generally the younger one is, the greater the ability
               to adapt to new work situations.

               Staff Hearing Officer, finds based upon Injured Worker's young
               age at 37, Injured Worker has a greater ability to adapt to new
               work situations and has considerably more work life and ability
               to be retrained within the sedentary work category, and
               therefore, that Injured Worker's age and education are positive
               vocational factors to be considered in determining whether
               Injured Worker has the ability for sustained remunerative
               employment.

               Staff Hearing Officer further finds Injured Worker was 22 years
               old at the time of injury and successfully completed a
               vocational rehabilitation with an actual return to work full duty
               for some period of time. Staff Hearing Officer finds while the
               claim file and record are unclear as to the exact dates of
               employment that the Injured Worker last worked in October of
               2009.

               Staff Hearing Officer finds Injured Worker was subsequently
               granted further temporary total disability compensation based
               upon additional physical conditions and psychological
               conditions in the claim through 03/29/2012. Injured Worker
               underwent a Functional Capacity Evaluation on 07/03/2012
               with referral for vocational rehabilitation but Injured Worker
               was found not feasible due to lack of interest in participation
               per closure letter, dated 08/01/2012.

               Temporary total disability compensation was again reinstated
               for the allowed psychological condition until Injured Worker
               was found to have reached maximum medical improvement on
               06/15/2015. Staff Hearing Officer finds that the 04/28/2015
               report of Kenneth Gruenfeld, Psy.D. was relied upon in
No. 17AP-174                                                                         13
               terminating temporary total disability compensation and
               found the Injured Worker capable of vocational rehabilitation.
               Injured Worker was again contacted on 06/18/2015 for referral
               to vocational rehabilitation with no response by Injured
               Worker.

               Staff Hearing Officer additionally finds that the Mental Health
               Summaries by the treating mental health professionals from
               05/11/2015 and 06/29/2015 also indicate Injured Worker's
               goal to return to regular meaningful activity and preferably
               return to work consistent with Dr. Gruenfeld's opinion that
               Injured Worker could participate in vocational rehabilitation.

               Pursuant to Speelman v. IC (1992) 73 O.App.3d 757, B.F.
               Goodrich Company v. IC (1995), 73 O.St.3d, Bowling v.
               National Can Corp., (1996), 77 O.St.3d 148, and Wilson v. IC,
               (1997), 80 Ohio St.3d 250, Injured Worker has a responsibility
               to undergo appropriate and reasonable medical and/or
               vocational rehabilitation which will either enable an Injured
               Worker to increase his residual functional capacity, and/or
               obtain new, marketable employment skills, and thereby
               increase his potential employability. Staff Hearing Officer finds
               Injured Worker's failure to attempt vocational rehabilitation as
               recommended by the 04/28/2015 opinion of Dr. Gruenfeld
               and consistent with the goals as contained within the treating
               mental health professionals, to be a negative factor in
               evaluating Injured Worker's application for permanent total
               disability.

               ***

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

       {¶ 29} 14. On July 7, 2016, relator moved for reconsideration of the SHO's order
mailed June 25, 2016. On August 4, 2016, the three-member commission mailed an order
denying relator's request for reconsideration.
       {¶ 30} 15. On August 18, 2016, relator moved for reconsideration of the
commission's order mailed August 4, 2016. On September 21, 2016, the three-member
commission mailed an order denying relator's August 18, 2016 motion for reconsideration.
No. 17AP-174                                                                               14
          {¶ 31} 16. On March 7, 2017, relator, Joshua N. Pilarczyk, filed this mandamus
action.
Conclusions of Law:
          {¶ 32} The issue is whether the report of Dr. Gruenfeld currently provides some
evidence upon which the commission can and did rely in determining the mental
component of "residual functional capacity." Ohio Adm.Code 4121-3-34(B)(4). Finding
that the report of Dr. Gruenfeld currently fails to provide some evidence supporting the
commission's determination of residual functional capacity, it is the magistrate's decision
that this court issue a writ of mandamus, as more fully explained below.
          {¶ 33} In her May 17, 2016 order, the SHO interprets Dr. Gruenfeld's report to opine
that relator "is capable of work in a low stress job." Relator disagrees with the SHO's
reading of the report. According to relator, Dr. Gruenfeld did not actually opine that relator
is capable of work. Thus, relator contends that the SHO's determination of residual
functional capacity is based on a misinterpretation of the report and that the report fails to
provide some evidence that the psychological conditions of the claim permit work to some
degree.
          {¶ 34} Relator also argues that the report of Dr. Gruenfeld is equivocal and, thus,
cannot provide some evidence to support the SHO's determination of residual functional
capacity.
          {¶ 35} Equivocal medical opinions are not evidence. State ex rel. Eberhardt v.
Flxible Corp., 70 Ohio St.3d 649, 657 (1994). Equivocation occurs when a doctor repudiates
an earlier opinion, renders contradictory or uncertain opinions, or fails to clarify an
ambiguous statement. Id. Ambiguous statements, however, are considered equivocal only
while they are unclarified. Id.
          {¶ 36} In Eberhardt, the court explained the concept of ambiguity with respect to
doctor's reports:
                Moreover, ambiguous statements are inherently different from
                those that are repudiated, contradictory or uncertain.
                Repudiated, contradictory or uncertain statements reveal that
                the doctor is not sure what he means and, therefore, they are
                inherently unreliable. Such statements relate to the doctor's
                position on a critical issue. Ambiguous statements, however,
                merely reveal that the doctor did not effectively convey what he
                meant and, therefore, they are not inherently unreliable. Such
                statements do not relate to the doctor's position, but to his
No. 17AP-174                                                                                  15
               communication skills. If we were to hold that clarified
               statements, because previously ambiguous, are subject to
               [State ex rel. Jennings v. Indus. Comm., 1 Ohio St.3d 101
               (1982)] or to commission rejection, we would effectively allow
               the commission to put words into a doctor's mouth or, worse,
               discount a truly probative opinion. Under such a view, any
               doctor's opinion could be disregarded merely because he failed
               on a single occasion to employ precise terminology. In a word,
               once an ambiguity, always an ambiguity. This court cannot
               countenance such an exclusion of probative evidence.

Id. at 657.

       {¶ 37} A medical report can be so internally inconsistent that it cannot be some
evidence upon which the commission can rely. State ex rel. Lopez v. Indus. Comm., 69
Ohio St.3d 445 (1994); State ex rel. Taylor v. Indus. Comm., 71 Ohio St.3d 582 (1995).
       {¶ 38} Here, Dr. Gruenfeld's response to the second query is problematical. The
second query asks if relator can "return to his/her former position of employment." In
response, Dr. Gruenfeld wrote three sentences. The first sentence opines: "mental health
issues likely do prevent him from returning to his former position of employment." The
third sentence opines: "his problems with distractibility and motivation inhibit his ability
to return to work at this time."
       {¶ 39} Some further observations are in order. To begin, it is settled that TTD
compensation is payable to one who cannot return to his or her former position of
employment due to the industrial injury. State ex rel. Ramirez v. Indus. Comm., 69 Ohio
St.2d 630 (1982).
       {¶ 40} It is further settled that PTD compensation is payable to one who cannot
perform any sustained remunerative employment due to the industrial injury. State ex rel.
Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987).
       {¶ 41} The phrase "former position of employment" has a specialized meaning in the
Ohio law of workers' compensation. Ramirez.
       {¶ 42} Thus, Dr. Gruenfeld is ambiguous when he opines "distractibility and
motivation inhibit his ability to return to work at this time." Dr. Gruenfeld fails to state that
distractibility and motivation inhibit a return to the former position of employment.
Rather, the opinion ambiguously suggests that a return to any work, as well as the former
position, is inhibited.
No. 17AP-174                                                                                  16
          {¶ 43} The question is whether Dr. Gruenfeld intended to stray beyond the scope of
the second query and to offer an opinion that relator cannot return to any work at this time.
It is not the duty of this court to resolve the ambiguity by holding, as the commission
suggests, that Dr. Gruenfeld intended to say that distractibility and motivation inhibit his
ability to return to his former position of employment.
          {¶ 44} Unfortunately, the bureau never asked Dr. Gruenfeld to clarify his ambiguous
statement. Because the ambiguity remains unclarified as to the critical issue before the
commission in the PTD proceeding, Dr. Gruenfeld's report must be eliminated from further
evidentiary consideration unless he subsequently resolves the ambiguity.                Thus, the
commission abused its discretion when it relied on Dr. Gruenfeld's report in determining
the mental component of "residual functional capacity." Ohio Adm.Code 4121-3-34(B)(4).
          {¶ 45} As earlier alluded, in response to the third query in his report, Dr. Gruenfeld
states:
                 Given his current mental health issues, he is unlikely to thrive
                 in a moderate to high stress job setting. He is more likely able
                 to work a job in an office where there is less stress to trigger his
                 depressive based condition.

          {¶ 46} While not a model of clarity, in the magistrate's view, Dr. Gruenfeld's
response to the third query can be accepted as his opinion that relator "is capable of work
in a low stress job" as the SHO determined in her May 17, 2016 order.
          {¶ 47} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate the May 17, 2016 order of its SHO that
denied the PTD application and, in a manner consistent with this magistrate's decision,
enter a new order that adjudicates the PTD application.


                                                  /S/ MAGISTRATE
                                                  KENNETH W. MACKE

                                 NOTICE TO THE PARTIES

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