[Cite as State ex rel. Giant Eagle, Inc. v. Indus. Comm., 2019-Ohio-2135.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Giant Eagle, Inc.,                    :

                 Relator,                               :

v.                                                      :                       No. 18AP-216

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

                 Respondents.                           :


                                            D E C I S I O N

                                       Rendered on May 30, 2019


                 Matty, Henrikson & Greve, Kirk R. Henrikson, and Jesse P.
                 Kanner, for relator.

                 Dave Yost, Attorney General, and Jacquelyn McTigue, for
                 respondent Industrial Commission of Ohio.

                 Heller, Maas, Moro, & Magill, Co. LPA, and Patrick J. Moro,
                 for respondent Richard Gewak.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

NELSON, J.
        {¶ 1} This matter comes before us on the timely objections of respondent Richard
Gewak to the magistrate's January 29, 2019 decision recommending that we issue a writ
of mandamus ordering the Industrial Commission of Ohio to reconsider its conclusion
that Mr. Gewak is entitled to permanent total disability compensation.
        {¶ 2} Pursuant to Civil Rule 53(D)(4)(d), we "undertake an independent review as
to the objected matters to ascertain [whether] the magistrate has properly determined the
factual issues and appropriately applied the law." Because our independent review leads
us to determine that mandamus is not warranted, we reject the magistrate's decision and
No. 18AP-216                                                                               2

enter judgment denying the requested writ. We will return to the magistrate's ruling and
the briefing on objections in due course, but for clarity of analysis we proceed first by
describing matters afresh from our perspective as informed by the administrative record.
******
       {¶ 3} The Industrial Commission argues that "[t]he commission itself is the
vocational expert" with regard to claims of permanent total disability benefits, and that
courts are not to "reevaluate and reweigh the evidence before the commission." It argues
that a commission determination is to be upheld where there is " 'some evidence' to
support its decision."   It argues that " 'it is not critical or even necessary for the
commission to accept or rely upon a vocational report,' " saying "the commission is not
required to explain why it rejects any report." And it argues that the fact that a hearing
officer "did not discuss every report in the administrative record does not support a
conclusion that the reports submitted * * * were not reviewed and considered."
       {¶ 4} The commission argues all that. Regularly. Just not in this case. Compare
Brief of Respondent Industrial Commission of Ohio in State ex rel., Denton v. Indus.
Comm., 10th Dist. No. 18AP-100 (Respondent's Aug. 22, 2018 Brief at 1, 8, 12, 13, 14)
(making those arguments in case argued the day after this one was submitted), with
Concession Brief of Respondent Industrial Commission of Ohio filed in this case a month
earlier on July 24, 2018 (not so much).
       {¶ 5} In this case, a staff hearing officer awarded permanent total disability
benefits to a 65-year-old meat cutter named Richard Gewak, who after graduating from
high school had worked for Giant Eagle and its predecessor for roughly 45 years.
Stipulated Ex. BB, Sept. 19, 2017 SHO ruling; Stipulated Ex. T, Jan. 27, 2017 VocWorks
Report at 4.
       {¶ 6} The record reflects that Mr. Gewak worked on his feet, cutting meat and
stacking heavy loads. See, e.g., Stipulated Ex. FF, Sept. 19, 2017 Tr. at 11. Mr. Gewak
began his work for a Giant Eagle forerunner in May of 1969. Id. at 7. He injured his back
in 2001 while hoisting 40 pounds of turkey; was allowed a workers compensation claim
for certain related conditions; returned to work, with some months on total temporary
disability in 2007 and in 2012; performed his last day of work in June 2013 and
eventually required surgery in 2014; was found to have obtained maximum medical
No. 18AP-216                                                                               3

improvement as of May 2016; and filed his application for permanent total disability in
2017, which the hearing officer granted as effective as of June 2016. See Stipulated Ex. A;
Stipulated Ex. FF, Sept. 19, 2017 Tr. at 4-18; Stipulated Ex. BB, Sept. 19, 2017 SHO ruling
at 1-2.
          {¶ 7} Giant Eagle then requested that the Industrial Commission reconsider the
staff hearing officer's order.       See Stipulated Ex. CC, Request for Reconsideration.
Asserting that reconsideration was proper because "the Order of the Staff Hearing Officer
represents a clear mistake of fact and law," id., Memo. in Support of Recons. at 4, Giant
Eagle emphasized its view that the hearing officer erred by relying on a vocational report
from vocational specialist Shannon Valentine of Valentine VocRehab LLC that "does not
even discuss any type of vocational retraining that could be done," id. at 1; Stipulated Ex.
AA (Valentine report). Giant Eagle highlighted in bold, there as here, findings that it
thought should have been given weight from Amy Rumrill of VocWorks, who reported in
January of 2017 that Mr. Gewak said he "does not want to work and that Giant Eagle does
not have jobs he can do." Memo in Support of Recons. at 2 (bolding omitted); see also id.
at 3, 4 (regarding VocWorks report from January and a paper review of August 2017).
          {¶ 8} Mr. Gewak responded that "a review of the transcript from [the staff hearing
officer's hearing] reveals that Mr. Gewak's comments to Ms. Rumrill were clarified" by
explaining that "he did not want to get out of work." Stipulated Ex. DD, Memo. in Opp. to
Recons. at 2. "He goes on to explain that, '* * * here up in my mind, it's like—you know,
it's telling me I want to work, but then my back's telling me I can't go back * * * [I] just
couldn't do it no more. I mean, standing, cutting, and I * * * I fell. I still wanted to work
'til [age] 67, and—but, you know, up here, I just—you know, I want to work, but then my
pain, I says, I just can't do it no more.' " Id. at 2.
          {¶ 9} With the Rumrill report issue thus clearly presented, the commission
denied Giant Eagle's "timely" request for reconsideration. See Compl. in Mandamus at
¶ 23, 24. The request, the commission found, "fails to meet the criteria of Industrial
Commission Resolution R08-1-01 dated 11/01/2008." Stipulated Ex. EE (noting that the
denial "was approved and confirmed by the majority of the members"). That publicly
posted commission resolution establishing "Reconsideration Guidelines" acknowledges
and later returns to the point that "continuing jurisdiction of the Industrial Commission is
No. 18AP-216                                                                                  4

not unlimited and that its prerequisites are: (1) new and changed circumstances; (2)
fraud; (3) clear mistake of fact; (4) clear mistake of law; or (5) error by inferior tribunal
[rendering the order defective]." Ohio Industrial Commission Reconsideration
Guidelines, R08-1-01 (Nov. 1, 2008), at 1, 2. The commission's denial of reconsideration
left the staff hearing officer's determination intact.
       {¶ 10} The commission thus having disclaimed further continuing jurisdiction,
Giant Eagle asks us to issue a writ of mandamus directing the commission to reverse its
order that grants Mr. Gewak permanent total disability status. Compl. at 4. As it must in
order to prevail here, Giant Eagle says that it has a clear legal right to such relief, and that
the commission has a clear legal duty to provide it, because the staff hearing officer's
order "is not supported by any evidence in the administrative record." Relator's Brief at
9-10 (citing State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986), which recites at
page 79 that a right to mandamus "may be established only if the record is devoid of some
evidence to support the commission's order").
       {¶ 11} The centerpiece of Giant Eagle's argument, in essence, has been that the
hearing officer's decision, while explicitly referring to the "functional capacity evaluation
performed by Amy Rumrill," improperly "ignores the fact" that the assessment reflects, in
Giant Eagle's words, that "Gewak's own lack of desire and/or motivation to work is what
is preventing him from active participation in vocational services." Relator's Brief at 13,
15 (also arguing at 18 that while the hearing officer "does cite" the findings of examining
Dr. Bartos, too, the decision did not accord those findings appropriate significance).
       {¶ 12} The commission had those findings and arguments before it when it denied
Giant Eagle's request for reconsideration. See, e.g., Stipulated Ex. CC, Recons. Request
and Memo.; Stipulated Ex. DD, Memo. In Opp. But here's the twist. In its briefing to this
court, the commission seeks to reclaim the jurisdiction over this matter that it earlier had
disclaimed.
       {¶ 13} The commission's "Concession Brief" says that the body "did not consider
the necessary non-medical factors when it adjudicated Gewak's PTD application," and
then elucidates the point:     Because "the SHO did not explicitly address the lack of
participating in rehabilitation or cite to the alleged testimony of Gewak that clarified why
he appeared disinterested [sic] in participating in rehabilitation," the commission
No. 18AP-216                                                                               5

"concedes" that the hearing officer's decision erred as a matter of law in not "addressing
whether Gewak had the capacity to reasonably develop other" remunerative skills.
Concession Brief of Respondent at 1, 4-5. But the commission sells itself short, as we will
elaborate below.
       {¶ 14} Because we decline on this record to allow the commission to use this
litigation stance to reclaim continuing jurisdiction that it already abjured in denying Giant
Eagle's request for reconsideration, and because we find that the commission's
determination that Mr. Gewak is "precluded from engaging in all sustained remunerative
employment, and thus permanently and totally disabled" in fact is supported by "some
evidence," see Elliott, 26 Ohio St.3d at 79 (citations omitted), we will conclude that the
commission did not abuse its discretion in this matter and we consequently will deny the
writ of mandamus requested by Giant Eagle.
       {¶ 15} The hearing officer was not presented only with Ms. Rumrill's
characterizations of what she saw as Mr. Gewak's disinclination to pursue vocational
rehabilitation. To be sure, that assessment did feature significantly at the hearing, see,
e.g., Tr. at 21 (Hearing Officer: "I got that right here"), having been raised by Mr. Gewak's
lawyer and discussed by Mr. Gewak himself, id. at 22-23, and of course having been
emphasized by Giant Eagle, id. at 33, 37-41; see also id. at 39 (hearing officer notes
related case citations provided by Giant Eagle). But the hearing officer also was presented
other materials, including the "Employability Assessment" of Valentine VocRehab LLC.
See Stipulated Ex. AA; Tr. at 24-25. Indeed, the hearing officer concluded the hearing by
mentioning the Valentine report, even while saying that he would take the Rumrill
assessment "for what it's worth." Id. at 45.
       {¶ 16} The report from Vocational Specialist Shannon Valentine observed Mr.
Gewak's "considerable difficulty with both sitting and standing for any appreciable
amount of time"; it acknowledged test scores reflecting "considerable difficulty when
attempting to perceive tabular material," and the like, suggesting (contrary to the
VocWorks file review of August 29, 2017 at 8-9) that Mr. Gewak "would not be a viable
candidate for entry level, sedentary clerking related work"; and it noted "decreased
stamina and endurance for even sedentary activities," accompanied by "decreased focus
and concentration as noted on the Minnesota Clerical Test." Stipulated Ex. AA at 2, 3, 4-
No. 18AP-216                                                                              6

5. In sum, it determined that "Vocational Rehabilitation is contraindicated," concluding
that "it is the opinion of this Vocational Specialist that Mr. Gewak would not be capable of
engaging in any sustained, remunerative employment." Id. at 5 (emphasis in original).
       {¶ 17} The hearing officer "based" his order on several assessments that he
enumerated, including the narrative report from the state's examining physician Dr.
Bartos (who, the hearing officer explicitly observed, found that Mr. Gewak had reached
maximum medical improvement and "cannot return to his former position," but said that
Mr. Gewak has a 23% permanent partial impairment and "would be capable of
performing some sedentary work"); a report from Mr. Gewak's consulting physician Dr.
DePerro (who "is of the opinion that the Injured Worker is permanently and totally
disabled and unable to engage in any sustained remunerative employment"); the
"functional capacity evaluation performed by Amy Rumrill" who found among "various
other" things that Mr. Gewak currently has no skills for sedentary employment; and
Sharon Valentine's vocational report. Stipulated Ex. BB at 1-2.
       {¶ 18} "After full consideration of the issue," and after noting that the 65-year-old
Mr. Gewak's "entire work history consists of working for [Giant Eagle] for approximately
40 years as a meat cutter," the hearing officer determined that he "concurs with Ms.
Valentine's opinion" and finds that Mr. Gewak "is permanently and totally disabled." Id.
Compare, State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 588, 2004-Ohio-
5990 ("the SHO recognized that it is not the capacity for remunerative employment that
bars a PTD award. It is the capacity for sustained remunerative employment") (emphasis
in original; citations omitted).
       {¶ 19} Under these circumstances, it would be paradoxical to suggest that the
commission's acceptance of a conclusion presented by a vocational expert (Ms. Valentine,
whose report the hearing officer found persuasive) is not supported by "some evidence."
The commission had some evidence, that is, even beyond Dr. DePerro's medical view, that
with vocational rehabilitation "contraindicated," Mr. Gewak "would not be capable of
engaging in any sustained, remunerative employment." Stipulated Ex. AA, Valentine
report at 5.
       {¶ 20} So this is not State ex rel. Gulley v. Indus. Comm. of Ohio, 152 Ohio St.3d
412, 415, 2017-Ohio-9131, where the commission abused its discretion by summarily
No. 18AP-216                                                                               7

rejecting reports that it incorrectly perceived as nullified by a (mis)perceived conflict of
interest. Here, by contrast, the commission did not turn away any evidence out of hand,
but found itself most persuaded by the Valentine report.
       {¶ 21} That sort of evaluation or weighing is the commission's job.         It is not
required to credit any particular vocational report, "even if it is uncontradicted." Id.
Indeed, although the hearing examiner's order on both pages adverted to Ms. Rumrill 's
assessment, see Stipulated Ex. BB at 1, 2 (while also making a rather euphemistic
reference to her "various other reasons" for finding Mr. Gewak not suitable for
rehabilitation efforts), it was not required to make any such explicit reference at all. See,
e.g., State ex rel. Scouler v. Indus. Comm., 119 Ohio St.3d 276, 279, 2008-Ohio-3915
(unless the commission lists all the evidence before it, omitting only a particular
document, "the commission need only enumerate the evidence relied upon to reach its
decision," citing State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481, 483-84
(1983)).
       {¶ 22} That is, "[t]he commission is not required to list or cite evidence that has
been considered and rejected or explain why certain evidence was deemed unpersuasive."
Id., citing State ex rel. DeMint v. Indus. Comm., 49 Ohio St.3d 19, 20 (1990).            In
exercising its own vocational expertise, it adopted Ms. Valentine's opinion. This it was
fully empowered to do. See, e.g., State ex rel. Jackson v. Indus. Comm. of Ohio, 79 Ohio
St.3d 266, 270-71 (1997) ("the commission * * * is not required to accept vocational
evidence, even if uncontradicted * * * The commission may credit offered vocational
evidence, but expert opinion is not critical or even necessary, because the commission is
the expert on this issue").
       {¶ 23} In this case, the hearing officer (who also heard directly from Mr. Gewak)
was persuaded of Ms. Valentine's view. Stipulated Ex. BB at 2, citing Stipulated Ex. AA
(Valentine report). And we note that if one "credit[s]" the Valentine report, as the
commission is empowered to do, questions of whether or not Mr. Gewak would apply
himself diligently to vocational rehabilitation efforts are rather aside from the point (even
without regard to Mr. Gewak's explanation at the hearing of what he had meant to convey
to Ms. Rumrill).
No. 18AP-216                                                                                   8

       {¶ 24} The hearing officer agreed in his own way with Ms. Valentine's opinion
(while also "considering the vast amount of physical restrictions outlined" by the doctors,
id.), and the commission denied reconsideration of that finding. We do not read the
governing precedents as requiring a more specific exegesis than the commission has
provided. See, e.g., DeMint, 49 Ohio St.3d at 20 (obligation to give "some notice" as to
reasoning and to point to the evidence relied on balances with "the desire to avoid
unnecessary and repetitive explanations," citing State, ex rel. Frigidaire Div., GM Corp. v.
Indus. Comm., 35 Ohio St.3d 105 (1988); "The * * * district hearing officer's order satisfies
Mitchell since it identifies [a certain] report as [the] evidence relied on and explains why
compensation was denied").
       {¶ 25} And for that reason, the commission's attempt now to reopen its
deliberations through court order, after having denied reconsideration earlier, fails. "The
commission's power to reconsider a previous decision * * * has limits" in the
preconditions already recited.      Gobich, 103 Ohio St.3d at 587 (adding at 588 that
"evidentiary disagreements rarely establish an error as 'clear' "); see also, e.g., State ex rel.
Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 458-59 (1998) ("[c]ontinuing jurisdiction is
not unlimited").
       {¶ 26} We presume that the commission undertook its earlier decision on whether
to grant reconsideration in good faith and conscientiously. "It is basic law, without need
of citation, that the Industrial Commission has considerable discretion in the performance
of its duties; that its actions are presumed to be valid and performed in good faith and
judgment, unless shown to be otherwise; and that so long as there is some evidence in the
file to support its findings and orders, this court will not overturn such." State ex rel.
Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170 (1987).
       {¶ 27} The reconsideration        process with     its   administratively    constrained
procedures would be obviated and the eventual, needed finality that it promotes would be
frustrated were the commission permitted to revisit its own final determinations absent
some showing of clear error, fraud, or the like. The Supreme Court of Ohio has been
careful to guard against practices that "would effectively give the commission unrestricted
jurisdiction."   Nicholls, 81 Ohio St.3d at 459 (adding that "the mere possibility of
unspecified error cannot sustain the invocation of continuing jurisdiction").
No. 18AP-216                                                                             9

       {¶ 28} And here, despite the commission's "[c]oncession," we have found that
there was no requirement for the hearing officer to "explicitly address" the VocWorks
position that, contrary to the opinion of Valentine VocRehab LLC with which he
"concur[red]," Mr. Gewak productively could pursue vocational rehabilitation.          The
commission's new position otherwise, see Concession Brief at 4, is not correct as a matter
of law, and so we are not bound either by the commission's "concession" as to the
performance of its hearing officer or by the fact that the commission now seeks a
reconsideration do-over.
******
       {¶ 29} As noted, this matter was referred to a magistrate of this court pursuant to
Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals; we append here the
decision the magistrate issued, although we do not adopt it.
       {¶ 30} The magistrate seems to have found the commission's Concession Brief
conclusive. For the reasons explained above, we do not.
       {¶ 31} The magistrate's first four findings of fact appropriately sketch the general
procedural posture of the case. But after devoting significant space to describing and
quoting passages of the Rumrill VocWorks assessment, the magistrate omits any mention
of the Valentine VocRehab assessment with which the hearing officer actually "concurs."
Giant Eagle has not argued here that the report of "Vocational Specialist" Valentine
should be removed from the record, and the fact is that the Rumrill and Valentine reports
to some extent conflict: one cannot agree with both in their entirety. Compare, e.g.,
Stipulated Ex. T, VocWorks Jan. 27, 2017 report at 7 ("Once a release to return to work is
secured, Richard may benefit from participation in a structured job search program in an
attempt to locate a job within his physical capacities") with Stipulated Ex. AA, Valentine
VocRehab Aug. 29, 2017 report at 3, 5 ("Mr. Gewak would not be a viable candidate for
entry level, sedentary clerking related work. * * *            Vocational rehabilitation is
contraindicated").
       {¶ 32} The commission's hearing officer was within his authority to cite to Ms.
Rumrill's assessment of Mr. Gewak's current status (she found a "lack of skills for
sedentary jobs," and the like, see Stipulated Ex. T, VocWorks report at 8), while agreeing
more generally and in full with the Valentine assessment that offered no prospect of
No. 18AP-216                                                                              10

future sustained remunerative employment.          He wrote that he "concurs with Ms.
Valentine's opinion * * *."    Stipulated Ex. BB at 2. He was not required to cite to
competing passages from Ms. Rumrill's report, see, e.g., Scouler, 119 Ohio St.3d at 279,
and on this record, his decision to concur unconditionally in the Valentine opinion is not
ours to make.
       {¶ 33} The magistrate emphasized that "[t]he commission has filed a brief
conceding that the SHO failed to address claimant's lack of participation in rehabilitation
as well as whether or not he could reasonably develop other skills. As such [sic], the
commission asks this court to issue a writ of mandamus ordering the commission to
consider those factors and redetermine whether or not claimant is entitled to any award of
PTD compensation." Mag.'s Decision at 4. She then concluded that because it did not
rely on her preferred passages, "it is clear the commission failed to consider all the
vocational evidence in the report on which it relied," and recommended that mandamus
issue. Id.
       {¶ 34} Again, as already explained, we do not agree. The commission is "the
exclusive evaluator of evidentiary weight and disability. Thus, when some evidence for
the commission's decision exists, the decision must be upheld even if contradicted by
other evidence a reviewing court considers more persuasive." Jackson, 79 Ohio St.3d at
268, citing State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373, 376 (1996).
       {¶ 35} Mr. Gewak's objections to the magistrate's decision urge that the
commission did not abuse its discretion in granting his application for permanent total
disability. He argues that the hearing officer did refer to the Rumrill report; that there is
"some evidence" supporting the commission's decision; that the commission did not
abuse its discretion; and that the magistrate did not find that the commission had abused
its discretion (although in effect, she did).      Giant Eagle counters, opposing those
arguments while again refraining from mentioning the Valentine opinion as favored by
the hearing officer.
       {¶ 36} The hearing officer's decision could have been more detailed and precise in
further describing the texture of "Ms. Valentine's opinion." But it did note Dr. DePerro's
"opinion that the Injured Worker is permanently and totally disabled," and it did adopt
"Ms. Valentine's opinion" in the course of further conveying the general sense (albeit not
No. 18AP-216                                                                              11

the precise wording) of her view that vocational rehabilitation is "contraindicated" in light
of all Mr. Gewak's relevant circumstances including all of his physical restrictions.
Stipulated Ex. BB at 2; Stipulated Ex. AA at 5. The commission denied reconsideration,
and there is some evidence to support its conclusion that Mr. Gewak "is precluded from
engaging in all sustained remunerative employment, and thus permanently and totally
disabled."
CONCLUSION
       {¶ 37} We find that the commission had some evidence to support its conclusion
and did not abuse its discretion. We therefore sustain Mr. Gewak's objections to the
magistrate's decision to that extent; we reject the magistrate's decision for the reasons we
have outlined; and we deny Giant Eagle's requested writ of mandamus.
                                                                      Objections sustained;
                                                                 writ of mandamus denied.

                      BRUNNER and BEATTY BLUNT, JJ., concur.
                            _________________
No. 18AP-216                                                                               12

                                       APPENDIX
                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Giant Eagle, Inc.,           :

              Relator,                         :

v.                                             :                    No. 18AP-216

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

              Respondents.                     :



                          MAGISTRATE'S DECISION

                               Rendered on January 29, 2019



              Matty, Henrikson & Greve, Kirk R. Henrikson, and Jesse P.
              Kanner, for relator.

              Dave Yost, Attorney General, and Jacquelyn McTigue, for
              respondent Industrial Commission of Ohio.

              Heller, Maas, Moro, & Magill, Co. LPA, and Patrick J. Moro,
              for respondent Richard Gewak.


                                       IN MANDAMUS

       {¶ 38} Relator, Giant Eagle, Inc., has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order awarding permanent total disability ("PTD")
compensation to respondent, Richard Gewak ("claimant"), and ordering the commission
to find that claimant is not entitled to that award.
No. 18AP-216                                                                          13


Findings of Fact:
       {¶ 39} 1. While employed as a meat cutter, claimant sustained a work-related
injury on November 19, 2001 and his workers' compensation claim was allowed for the
following conditions: "lumbar sprain/strain; L5-S1 disc herniation and aggravation of
pre-existing spinal canal stenosis of the lumbar spine."
       {¶ 40} 2. Claimant received conservative medical treatment for the allowed
conditions and worked until 2014 when he underwent surgery involving:
              [W]ide decompression; stabilization; and fusion L2-3; C-arm
              disc decompression L3-4, L4-5, L5-S1; postop bone
              stimulator; back brace; and postop physical therapy.

       {¶ 41} 3. Claimant received temporary total disability ("TTD") compensation
following the surgery.
       {¶ 42} 4. Relator filed a motion to terminate claimant's TTD compensation and,
following a hearing before a staff hearing officer ("SHO") on June 22, 2016, claimant's
TTD compensation was terminated based on a finding that his allowed conditions had
reached maximum medical improvement ("MMI").
       {¶ 43} 5. Based on the results of a functional capacity evaluation, claimant was
referred for vocational rehabilitation.
       {¶ 44} 6. In the vocational rehabilitation assessment report dated January 27,
2017, it was noted that claimant repeatedly indicated that he was not interested in
working, that he did not believe there were any jobs which he could perform, and, as a
result, he did not feel that he had to answer all the questions posed to him by the
evaluator. Per the report, it was noted that claimant was receiving sufficient disability
income to meet his financial needs. The evaluator identified the following assets and
barriers to re-employment:
              Assets to Employment

              Richard has the following assets to employment: a high
              school diploma, ability to learn skills on the job like he did
              when he was a meat cutter, forty-five years of experience as a
              meat cutter, a valid driver's license and a reliable
No. 18AP-216                                                                              14

              automobile. Also, he was punctual to arrive as scheduled to
              the meeting with this evaluator.

              Barriers to Employment

              Richard has a work gap of more than two years. Currently he
              does not have a release to return to work from his physician
              of record. Since he may need to locate and apply for jobs in
              fields other than a meat cutter, he will need to learn how to
              answer questions pertaining to his injury. Richard states no
              motivation to return to work. He has a moderate focus on his
              pain as evidenced by his verbal reports that may impact his
              ability to work. He has physical limitations from the claim-
              related conditions. Richard has lead a sedentary lifestyle over
              the past two plus years which may also serve as a barrier to
              employment and may also impact his feasibility for
              vocational rehabilitation services. He also has non claim-
              related conditions of knee and leg arthritis, blood pressure,
              diabetes, and a left hip replacement.

       {¶ 45} 7. Ultimately, it was determined that relator was not a good candidate for
vocational rehabilitation.
       {¶ 46} 8. Claimant filed an application for PTD compensation which was heard
before an SHO on September 19, 2017. The SHO relied on medical reports to find that
claimant would be capable of performing some sedentary employment. The SHO also
relied on the ultimate conclusion of the vocational evaluator that claimant was not a good
candidate for vocational rehabilitation, the claimant's age of 65 years, the fact that he had
a high school education, could read, write, and perform basic math, and the fact that he
had been employed as a meat cutter for approximately 40 years, and concluded that
claimant was permanently and totally disabled.
       {¶ 47} 9. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 48} For the reasons that follow, it is this magistrate's decision that this court
should issue a writ of mandamus ordering the commission to reconsider claimant's
application after taking into account claimant's failure to address both claimant's lack of
participation in rehabilitation and whether claimant could reasonably develop other skills.
No. 18AP-216                                                                                15

       {¶ 49} 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).
       {¶ 50} 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).
       {¶ 51} The commission has filed a brief conceding that the SHO failed to address
claimant's lack of participation in rehabilitation as well as whether or not he could
reasonably develop other skills. As such, the commission asks this court to issue a writ of
mandamus ordering the commission to consider those factors and redetermine whether
or not claimant is entitled to an award of PTD compensation. Claimant points out he was
not found to be a feasible candidate for vocational rehabilitation.
       {¶ 52} Because it is clear the commission failed to consider all the vocational
evidence in the report on which it relied, it is this magistrate's decision that this court
should issue a writ of mandamus ordering the commission to reconsider claimant's
application for PTD compensation after considering claimant's lack of participation in
vocational rehabilitation, and whether or not he could develop other skills that would help
him obtain employment.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA
No. 18AP-216                                                                   16


                           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).
