[Cite as State ex rel. Young v. Butler Cty. Personnel Office, 2016-Ohio-8341.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Wanda M. Young,                   :

                 Relator,                               :

v.                                                      :                        No. 15AP-1035

Butler County Personnel Office                          :                   (REGULAR CALENDAR)
and Industrial Commission of Ohio,
                                                        :
                 Respondents.
                                                        :




                                          D E C I S I O N

                                    Rendered on December 22, 2016


                 On brief: Lisa M. Clark, and Mark B. Weisser, for relator.

                 On brief: McCracken & Martin LLC, and Kyle D. Martin,
                 for respondent Butler County Personnel Office.

                 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, P.J.
        {¶ 1} Relator, Wanda M. Young, filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its September 9, 20151 order which denied her application for
permanent total disability ("PTD") compensation after finding that relator had voluntarily


1 On September 1, 2015, a staff hearing officer held a hearing on relator's request for PTD compensation. On

September 2, 2015, the order denying the request was typed, and on September 9, 2015 the order was
mailed. We will refer to the order pursuant to the date it was mailed, September 9, 2015.
No. 15AP-1035                                                                             2


abandoned the workforce, and ordering the commission to reconsider her application and
grant her PTD compensation.
       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
this court deny relator's request for a writ of mandamus.
       {¶ 3} Relator has filed the following objection to the magistrate's decision:
              The Staff Hearing Officer's decision concluding the Claimant
              voluntarily abandoned the workforce, which was never
              raised by the Employer at the PTD hearing, constitutes an
              abuse of discretion.
       {¶ 4} The argument raised in the objection is essentially the same as that raised to
and addressed by the magistrate.
       {¶ 5} The magistrate rejected this argument.         The magistrate observed the
relevant inquiry in the determination of PTD is the claimant's ability to do any sustained
remunerative employment.       Further, the magistrate cited Ohio Adm.Code 4121-3-
34(D)(1)(d) which states:
              If, after hearing, the adjudicator finds that the injured
              worker voluntarily removed himself or herself from the work
              force, the injured worker shall be found not to be
              permanently and totally disabled. If evidence of voluntary
              removal or retirement is brought into issue, the adjudicator
              shall consider evidence that is submitted of the injured
              worker's medical condition at or near the time of
              removal/retirement.
       {¶ 6} The magistrate noted the regulation requires that "if evidence of voluntary
removal or retirement is made an issue, the hearing officer must consider evidence of the
claimant's medical condition at or near the time of removal/retirement." (Appended
Magistrate's Decision at ¶ 44.) This is so a determination can be made if the claimant is
not medically capable of participating in vocational rehabilitation services or working, and
therefore abandonment of the workforce is not voluntary.
       {¶ 7} The magistrate also rejected the argument that voluntary abandonment
should not have been found because the evidence establishes that any further attempts at
vocational rehabilitation would have been in vain. The magistrate noted that relator did
complete vocational rehabilitation in 2012; and in July 2013, a staff hearing officer
No. 15AP-1035                                                                              3


("SHO") determined she was capable of sedentary work activity and, thus, some sustained
remunerative employment. Nevertheless, despite the vocational rehabilitation specialist's
opinion that relator was capable of pursuing an independent job search and engaging in
sustained remunerative employment, relator did not do so.
        {¶ 8} Finally, the magistrate rejected the argument that relator was incapable of
working pursuant to Dr. Tricia M. Giessler's opinion and, thus, incapable of looking for
work.    Again, the magistrate noted the July 2013 SHO determination that, even
considering the allowed physical and psychological conditions, relator was capable of
performing sustained remunerative employment.            The magistrate noted that Dr.
Giessler's opinion was not obtained until December 2014, and that relator made no effort
to secure employment between the SHO's July 2013 determination and Dr. Giessler's
December 2014 opinion.     In her brief, relator also refers to the opinion of Dr. Kenneth J.
Manges. Dr. Manges' report was obtained even later than Dr. Giessler's opinion, in June
2015.
        {¶ 9} We have carefully considered relator's objection and arguments and
reviewed the joint stipulation of evidence as well.      For the reasons outlined in the
magistrate's decision, we disagree with relator that the commission abused its discretion
in concluding that relator voluntarily abandoned the workforce and, therefore, is not
eligible for PTD compensation.
        {¶ 10} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objection, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
relator's objection to the magistrate's decision and adopt the magistrate's decision as our
own, including the findings of fact and conclusions of law contained therein. Accordingly,
the requested writ of mandamus is hereby denied.
                                                                      Objection overruled;
                                                                writ of mandamus denied.
                       TYACK and LUPER SCHUSTER, JJ., concur.
No. 15AP-1035                                                                            4


                                     APPENDIX
                        IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel. Wanda M. Young,            :

             Relator,                        :

v.                                           :                    No. 15AP-1035

Butler County Personnel Office               :               (REGULAR CALENDAR)
and Industrial Commission of Ohio,
                                             :
             Respondents.
                                             :



                         MAGISTRATE'S DECISION

                               Rendered on June 15, 2016



             Lisa M. Clark, and Mark B. Weisser, for relator.

             McCracken & Martin, LLC, and Kyle D. Martin, for
             respondent Butler County Personnel Office.

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


                                     IN MANDAMUS

      {¶ 11} Relator, Wanda M. Young, 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 her application for permanent total
disability ("PTD") compensation after finding that she had voluntarily removed herself from
the workforce, and ordering the commission to reconsider her application and grant it.
No. 15AP-1035                                                                           5


Findings of Fact:
       {¶ 12} 1. Relator has four industrial claims arising out of her employment as a
nursing assistant at the Butler County Care Facility. The commission lists the employer as
the Butler County Personnel Office.
       {¶ 13} 2. On June 24, 2005, relator sustained an industrial injury (claim No. 05-
369290), which is allowed for:
              Sprain left elbow; left lateral epicondylitis; tendinopathy of
              the brachial tendon left elbow; partial tear of brachial tendon
              left.

       {¶ 14} 3. On October 29, 2006, relator sustained an industrial injury (claim No.
06-394743), which is allowed for:
              Right shoulder sprain; impingement syndrome right
              shoulder; rotator cuff tear right shoulder; synovitis right
              shoulder.

       {¶ 15} 4. On May 2, 2007, relator sustained an industrial injury (claim No. 07-
825779), which is allowed for:
              Sprain lumbosacral; substantial aggravation L4-5 and L5-S1
              spondylosis; bilateral posterior superior iliac spine
              tendonitis.

       {¶ 16} 5. On August 26, 2008, relator sustained an industrial injury (claim No. 08-
852242), which is allowed for:
              Sprain of neck; sprain of right knee and leg; substantial
              aggravation pre-existing right knee chondromalacia; major
              depressive disorder.

       {¶ 17} 6. The record contains a five-page document dated January 18, 2012
captioned "Ohio Valley Goodwill Industries Work Adjustment Services Discharge
Summary." The Goodwill summary indicates that, during November and December 2011,
relator participated in a four-week transition program designed to assist her to find new
employment.
       {¶ 18} The Goodwill summary assesses relator's "strengths" and "barriers" to
employment:
No. 15AP-1035                                                               6


            STRENGTHS:

                   Provided documentation necessary to complete the
                    Employment Eligibility Verification (I-9) form
                    required of all newly hired employees
                   Has valid driver's license and own[s] vehicle
                   Exhibited awareness of employers' expectations
                    regarding "soft" skills
                   Capable of following verbal instructions and
                    demonstrations
                   Capable of learning new procedures/work tasks
                   Demonstrated ability to focus on work tasks
                   Courteous, polite
                   Exhibited sufficient stamina for a four-hour workday
                    on sedentary jobs

            BARRIERS TO EMPLOYMENT:

                   No recent work history
                   Lacks high school education/GED
                   Physical limitations including no lifting over 20 lbs
                    and only occasional lifting of 20 lbs or less; no
                    squatting/kneeling; bending, twisting, reaching below
                    knee, pushing/pulling, standing/walking limited to
                    occasionally; sitting and lifting above the shoulders
                    limited to frequently

            The Goodwill summary concludes:
            DESIRED OUTCOMES AND EXPECTATIONS
            ESTABLISHED/ACHIEVED:

            Wanda was referred for Work Adjustment services to assess
            her ability to transition to different types of work while
            assessing her work behaviors, assets and deficits for
            employment.

            Wanda demonstrated the ability to easily transition to
            different types of work and exhibited the work behaviors
            expected of a competitive employee. She was attentive when
            directions were provided, retained instructions and was cap-
            able of working independently. Wanda's physical restrictions
            and limited stamina for more than a four-hour day in a
            sedentary position would appear to be insurmountable
            barriers to obtaining employment in a retail position, as she
            desired.
No. 15AP-1035                                                                            7


              Without a GED, Wanda's other vocational interest, working
              with computers, would be unlikely. At this time, her
              academic skills, concentration and attention to detail would
              indicate that she would struggle with obtaining her GED and
              computer training.

              REASONS FOR DISCHARGE:

              Wanda completed her four-week adjustment program.

       {¶ 19} 7. The record contains a one-page document captioned "Vocational
Rehabilitation Closure Report," which is a form (RH-21) of the Ohio Bureau of Workers'
Compensation ("BWC"). The document was approved by a vocational rehabilitation case
manager on May 30, 2012. The document states:
              Ms. Young's case was assigned to this case manager on
              10/20/11. Barriers identified for Ms. Young included,
              sedentary work restrictions and no GED. A four week work
              adjustment program was recommended and Ms. Young
              demonstrated that she could tolerate a different work
              environment. Based on this JSST and job search services
              were recommended. Ms. Young also had a GED assessment
              and studied for the test on her own. Her academic levels
              were so low that it was impossible to assess how long it
              would take her to be able to reach a level when she could take
              the GED so this was not a focus of her plan services. Ms.
              Young completed JSST and 20 weeks of job search services.
              Ms. Young's effort was excellent, she was extremely limited
              in her work opportunities due to her education and
              restrictions. Case closure was recommended for completion
              of services without finding employment.

       {¶ 20} 8. On January 3, 2013, relator filed an application for PTD compensation
on a form provided by the commission.
       {¶ 21} 9. The PTD application form asks the applicant for information regarding
her education. On the form, relator indicated that the eighth grade was the highest grade
of school completed and this occurred in 1969. She did not complete her GED nor did she
attend a trade or vocational school, nor other specialized training. She noted further that
she could read, write, and perform basic math, but not well.
       {¶ 22} 10. Following a July 10, 2013 hearing, a staff hearing officer ("SHO") issued
an order denying her PTD application. The SHO relied on medical evidence to find that
No. 15AP-1035                                                                     8


relator could perform sedentary work with no overhead work with her right upper
extremity.   Further, the SHO relied on medical evidence that relator's allowed
psychological condition did not preclude relatively low stress employment. The SHO's
order explains:
             The Staff Hearing Officer finds that the Injured Worker is 58
             years of age and has an 8th grade education. The Staff
             Hearing Officer notes from the Injured Worker's permanent
             total application that she is able to read, write and do basic
             math, but not well. The Staff Hearing Officer finds that the
             Injured Worker has a varied work history; performing jobs
             as a nurse's assistant, food service worker and packer.

             ***

             The Staff Hearing Officer finds that the Injured Worker has
             completed 30 weeks of job search services but was unable to
             secure alternative employment as a result of the vocational
             rehabilitation services. The Staff Hearing Officer finds that
             the vocational rehabilitation closure report of 05/30/2012
             indicated that Ms. Young demonstrated from a work
             adjustment program that she could tolerate a different work
             environment. The vocational rehabilitation closure report
             indicated that Ms. Young's effort was excellent but she was
             limited in her work opportunities due to her 8th grade
             education and restrictions to sedentary employment. The
             closure report indicated that the case closure was
             recommended because of completion of services without
             finding employment. The vocational rehabilitation closure
             report indicates with the Injured Worker's participation that
             she has the aptitude to learn and the ability to be re-trained
             but the employment prospects currently existing in the
             economy did not result in a placement of a job for the
             Injured Worker. The Staff Hearing Officer finds that the
             Ohio Valley Goodwill Industries Work Adjustment Services
             Discharge Summary dated 01/18/2012 indicated that the
             Injured Worker has various strengths when it comes to
             employment. The discharge summary indicated that the
             Injured Worker has a valid drivers license and owns a
             vehicle, exhibited awareness of employer's expectations
             regarding skills, capable of following verbal instructions and
             demonstration, capable of learning new procedures/work
             tasks, demonstrated ability to focus on work tasks and is
             courteous and polite. The Staff Hearing Officer finds that
             these vocational strengths are beneficial to an Injured
             Worker in securing future employment.
No. 15AP-1035                                                                             9


              The Staff Hearing Officer finds that the Injured Worker's 8th
              grade education without a GED certificate is a negative
              vocational factor. The Staff Hearing Officer finds that the
              Injured Worker's education would negatively impact her in
              securing future employment. However the Staff Hearing
              Officer finds that the Injured Worker's age of 58, her past
              work experience as a nursing assistant, food service worker
              and packer shows that the Injured Worker is capable of
              learning new procedures and new tasks in different work
              environments. The Staff Hearing Officer notes that the
              Injured Worker's employment as a state tested nursing
              assistant indicates that the Injured Worker had the
              capability to interact with the public and demonstrate the
              ability to read/write/do basic math in performing these
              tasks. The Staff Hearing Officer finds that an Injured
              Worker's efforts in education re-training will be scrutinized
              by the Industrial Commission. The Staff Hearing Officer
              finds that the Injured Worker is 58 years of age with an 8th
              grade education and has the capability to pursue a GED
              certificate and further training to enhance her re-
              employment efforts. The Staff Hearing Officer finds that an
              Injured Worker is expected to engage in return to work
              efforts and efforts to improve re-employment potential. This
              is because permanent total compensation is compensation of
              the last resort to be awarded only when an Injured Worker's
              efforts at re-employment have failed. The [sic] State ex rel.
              Wilson v. Industrial Commission (1997) 80 Ohio St.3d 250,
              253.

              Based on a careful consideration of the above, as well as the
              evidence in file and at the hearing, the Staff Hearing Officer
              concludes that the Injured Worker is capable of performing
              sustained remunerative employment consistent with
              sedentary work. Therefore the Injured Worker is not
              permanently totally disabled.

       {¶ 23} 11. On January 2, 2014, relator, Wanda Young, filed a mandamus action in
this court. State ex rel. Young v. Indus. Comm., 10th Dist. No. 14AP-3, 2014-Ohio-5331.
In that case, three issues were presented:      (1) whether the commission abused its
discretion in failing to identify skills that were transferrable to the sedentary employment
that relator could perform; (2) whether the commission abused its discretion in
determining that relator was capable of learning new procedures and work tasks; and (3)
No. 15AP-1035                                                                          10


whether the commission abused its discretion in determining that relator had the capacity
to successfully pursue a GED certificate.
       {¶ 24} The magistrate found: (1) the commission did not abuse its discretion by
not identifying skills that were transferrable to the sedentary employment that relator
could perform; (2) the commission did not abuse its discretion in determining that relator
was capable of learning new procedures and work tasks; and (3) the commission did not
abuse its discretion in determining that relator had the capacity to successfully pursue a
GED certificate.
       {¶ 25} No objections were filed and this court adopted the magistrate's decision as
its own.
       {¶ 26} 12. After the magistrate's decision was released and before this court
adopted that decision, relator was again referred for vocational rehabilitation.
       {¶ 27} 13. In a letter dated November 19, 2014, relator was informed that she was
not feasible for vocational rehabilitation services for the following reasons:
                [Injured Worker] has been given the tools and taught the
                skills necessary for an independent Job Search. There are no
                other services to offer based on prior vocational
                rehabilitation test results and services previously rendered.
                The certified vocational evaluation in 2012 finds cognitive
                deficits that do not warrant short/long term training. The
                injured worker was provided thirty weeks of job search with
                the assistance of job placement and development
                professionals. No new and changed circumstances within the
                injured workers' [sic] restrictions since 2012 nor increase in
                educational level are founded upon review of the claim file.

       {¶ 28} 14. Relator had the opportunity to appeal this decision; however, she chose
not to do so.
       {¶ 29} 15. In a letter dated November 13, 2014, Dr. Paley noted that a recent MRI
of relator's right shoulder demonstrated a probable re-tear and damage to her rotator
cuff. He noted further that she continued to have persistent symptoms associated with
her right knee and low back. Dr. Paley indicated that relator would require considerable
supportive care along with ongoing medication, including low-dose narcotic medication.
Dr. Paley opined that relator was permanently and totally disabled, stating:
                It is my opinion that Ms. Young is going to require
                considerable supportive care along with ongoing medication,
No. 15AP-1035                                                                             11


              including low-dose narcotic medication which will leave her,
              in my opinion, a less than desirable candidate for return to
              gainful employment.

              More likely than not, Ms. Young will require multiple lost
              work days every month. She will require fairly restricted
              work activity that will require frequent breaks.

              Given all of the above, combined with the fact that she is
              going to require fairly restricted and limited duty, I believe
              that Ms. Young not only is incapable of significant gainful
              employment, but she is going to have a difficult time holding
              or maintaining any type of reasonable employment on a
              regular basis.

              While I am not usually a fan of permanent total disability
              benefits, in this particular case, given the nature of these
              injuries and the required treatment, including the use of
              narcotic medications, I believe that fifty-nine-year-old Ms.
              Young is going to have a very difficult time returning to
              gainful employment. In all honesty, this is the type of patient
              that potential employers shy away from as the restrictions
              are simply too burdensome upon the employers.

              After careful consideration of the claim allowances and
              related residual disability, it is my professional opinion,
              rendered within the realm of reasonable medical
              probabilities, that Ms. Young is permanently and totally
              disabled.

       {¶ 30} 16. Relator filed her second application for PTD compensation on
January 6, 2015. Relator's second application was supported by the December 19, 2014
report of Tricia M. Giessler, Psy.D., her treating clinical psychologist. Dr. Giessler opined
that relator's major depressive disorder, along with her allowed physical conditions,
rendered her permanently and totally disabled.
       {¶ 31} 17. An independent psychological report dated February 25, 2015 was
completed by Donald J. Tosi, Ph.D. In that report, Dr. Tosi listed relator's allowed
conditions and identified the medical records which he reviewed. Dr. Tosi found mild
impairments with regard to activities of daily living, social interactions, adaptation, as
well as concentration, persistence, and pace. Dr. Tosi administered the Million Clinical
Multi Axial Inventory-III ("MCMI-III") and noted the following relevant findings:
No. 15AP-1035                                                                          12


             Testing had such a severe "fake bad" exaggeration of
             pathology that test results are probably grossly distorted and
             invalid. If not due to numbering or to reading problems, this
             may represent either a cry for help or conscious malingering.

             Ms. Young is not reflective or thoughtful which can limit
             insight and judgment. She does not try to understand the
             world in cognitive, rational ways.

             Concentration difficulties are probable with Ms. Young being
             distractible, preoccupied, and inattentive. This may cause
             Ms. Young to miss important environmental cues leading to
             decreased judgment and coping.

             Due to her cognitive style, Ms. Young may have severe
             difficulty learning from her experiences and may repeatedly
             make the same mistakes.

             Test scores may indicate a Major Depression or may
             represent a severe Adjustment Disorder.

             Impulse control is poor with Ms. Young impulsively acting
             out without consideration of alternatives. She acts directly on
             feelings to gain immediate gratification with little
             forethought.

             Ms. Young's reported energy level is within the Normal
             range.

             Testing indicates significant Borderline Personality features.

             Testing indicates significant Schizoid, Dependent, and
             Passive-Aggressive features that are likely to affect daily
             functioning.

             Ms. Young denies most of her emotions, especially anger,
             hurt, and resentment. Even so, Ms. Young tends to be
             irritable and malcontent as anxiety, negativity, and anger
             exist since Ms. Young believes that she "got a raw deal from
             life." Underlying worry and anger can result in mood swings
             and be expressed through subtle attacks, blame, insults, and
             complaints.

      {¶ 32} Dr. Tosi opined that, from a psychological standpoint, relator was capable of
returning to remunerative employment and would function best in low-moderate work
stress and tasks that would be simple to moderate in complexity.
No. 15AP-1035                                                                           13


          {¶ 33} 18. The record also contains the June 6, 2015 report of Kenneth J. Manges,
Ph.D. After identifying the allowed conditions in relator's claims and identifying the
medical records which he reviewed, Dr. Manges determined that relator had a Class 3
moderate whole person psychological impairment of 30 percent. Dr. Manges completed
an occupational activity assessment indicating that, in his opinion, relator was incapable
of work.
          {¶ 34} 19. Stephen S. Wunder, M.D., examined relator concerning her allowed
physical conditions. In his March 9, 2015 report, Dr. Wunder identified the allowed
conditions in relator's claims, identified the medical records which he reviewed, and
provided his physical findings on examination. Concerning her shoulder, Dr. Wunder
noted that relator informed him that updated imaging studies suggested a recurrent
rotator cuff tear and consideration of a shoulder replacement. In that regard, Dr. Wunder
stated:
                However, the MRI that was forwarded to me dated
                October 26, 2014, showed a chronic tear of the anterior
                labrum and did not show any evidence of a recurrent rotator
                cuff tear. Her subjective complaints are not supported by
                objective findings, and there are many nonorganic findings
                present.

          {¶ 35} Dr. Wunder opined that relator's allowed physical conditions had reached
maximum medical improvement and that relator would be capable of performing
sustained remunerative employment as follows:
                Considering only the allowed conditions in the listed claims,
                the claimant would be capable of returning to sustained
                remunerative employment. She would be capable of at least a
                full range of sedentary work, which would include lifting up
                to 10 pounds occasionally and lesser amounts of weight more
                frequently. She would have to do sit-down type of work. I do
                not believe she could work from heights and with the right
                knee I do not think she could crawl or kneel.

          {¶ 36} 20. The commission referred relator to Matthew F. Burton, M.D. In his
May 12, 2015 report, Dr. Burton identified the allowed conditions in relator's claims and
provided his physical findings on examination. Ultimately, Dr. Burton concluded that
relator had an 18 percent whole person impairment and that she would be capable of
No. 15AP-1035                                                                     14


performing sedentary work activity despite her shoulder surgery and functional
limitations.
       {¶ 37} 21. Relator's application was heard before an SHO on September 1, 2015.
The SHO denied relator's application finding that she had voluntarily removed herself
from the workplace. The SHO explained:
               By way of history, the Injured Worker's prior Application for
               Permanent Total Disability Compensation filed 01/03/2013,
               was denied by Staff Hearing Officer order dated 07/10/2013.
               This denial was later affirmed by a decision from the Court of
               Appeals of Ohio, 10th Appellate District, in a decision dated
               12/02/2014.

               One month later, on 01/06/2015, the Injured Worker filed a
               virtually identical Application for Permanent Total Disability
               Compensation.

               When the Injured Worker's prior Application for Permanent
               Total Disability Compensation was denied by Staff Hearing
               Officer order dated 07/10/2013, the Staff Hearing Officer
               considered all medical evidence on file at that time, in
               conjunction with the Injured Worker's non-medical
               disability factors, and concluded that the Injured Worker
               was capable of engaging in sustained remunerative
               employment. Further, this finding was affirmed by the 10th
               District Court of Appeals.

               Despite the finding that the Injured Worker was capable of
               engaging in sustained remunerative employment, the
               Injured Worker has not returned to work, engaged in a job
               search, or made any other attempt to return to the workforce
               since 07/10/2013.

               At hearing, the Injured Worker argued that she attempted to
               participate in vocational rehabilitation services in November
               of 2014, but her application was denied. The Injured Worker
               specifically argued that the fact that she applied for
               vocational rehabilitation constitutes her best and most
               sincere effort to seek employment and return to the
               workforce.

               The Staff Hearing Officer rejects this argument.

               Significantly, the Vocational Rehabilitation Closure Report
               issued by Mr. Mark Pauley, Vocational Rehabilitation
No. 15AP-1035                                                                           15


             Specialist, dated 11/19/2014, indicates that the Injured
             Worker is not a viable candidate to participate in vocational
             rehabilitation for the reason that the Injured Worker has
             already completed the vocational rehabilitation process in
             2012. Mr. Pauley indicates that the Injured Worker is not a
             good candidate to participate in vocational rehabilitation in
             2014 because there are no additional skills or services
             available through vocational rehabilitation. Mr. Pauley
             indicates that the Injured Worker has been given the tools
             and taught the necessary skills to conduct an independent
             job search.

             Despite Mr. Pauley's finding that the Injured Worker has the
             skills necessary to conduct an independent job search, the
             Injured Worker has opted not to do so.

             Further, the Staff Hearing Officer finds that the Injured
             Worker's application to participate in vocational
             rehabilitation in 2014 does not constitute the Injured
             Worker's best and most sincere attempt to gain acceptance
             into vocational rehabilitation. Expressly, the Managed Care
             Organization denial dated 11/19/2014 could have been
             appealed to the Industrial Commission for adjudication. The
             Injured Worker opted not to pursue her application any
             further and no appeal was ever taken.

             Therefore, the Staff Hearing Officer finds that the Injured
             Worker voluntarily abandoned the workforce on 07/10/2013
             when a Staff Hearing Officer made a specific finding that the
             Injured Worker was capable of engaging in sustained
             remunerative employment and the Injured Worker opted not
             to make any attempt to do so.

             Therefore, the Staff Hearing Officer finds the Injured Worker
             ineligible to receive permanent total disability compensation
             pursuant to Ohio Adm.Code 4121-3-34(D)(1)(d).

      {¶ 38} 22. Relator's request for reconsideration was denied by order of the
commission mailed October 22, 2015.
      {¶ 39} 23. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
      {¶ 40} Relator's sole argument is that the commission abused its discretion by
concluding that she had voluntarily abandoned the workforce, an issue which was never
No. 15AP-1035                                                                              16


raised by the employer at the hearing. For the reasons that follow, the magistrate rejects
relator's argument.
       {¶ 41} 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).
       {¶ 42} 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).
       {¶ 43} Ohio Adm.Code 4121-3-34(D) sets forth the commission's guidelines for the
adjudication of PTD applications.       Thereunder, Ohio Adm.Code 4121-3-34(D)(1)(d)
provides:
              If, after hearing, the adjudicator finds that the injured
              worker voluntarily removed himself or herself from the work
              force, the injured worker shall be found not to be
              permanently and totally disabled. If evidence of voluntary
              removal or retirement is brought into issue, the adjudicator
              shall consider evidence that is submitted of the injured
              worker's medical condition at or near the time of
              removal/retirement.

       {¶ 44} Relator contends that pursuant to Ohio Adm.Code 4121-3-34(D)(1)(d), the
commission may only consider whether a claimant voluntarily removed themself from the
workforce if the issue is raised. However, that is not what the regulation provides.
Instead, the regulation requires that, if evidence of voluntary removal or retirement is
made an issue, the hearing officer must consider evidence of the claimant's medical
No. 15AP-1035                                                                           17


condition at or near the time of removal/retirement. This is always a factor when the
commission considers whether or not a claimant has voluntarily removed themselves
from the workforce because if a claimant is not medically capable of participating in
vocational rehabilitation services or working, then the claimant cannot voluntarily
abandon the workforce.
        {¶ 45} Relator also contends that the evidence establishes that any further
attempts at vocational rehabilitation would have been in vain. As such, relator asserts the
SHO should not have found voluntary abandonment. However, the magistrate disagrees.
As noted in the findings of fact, relator did complete vocational rehabilitation in 2012,
prior to the filing of her first application for PTD compensation. In the commission's
order denying her first application for PTD compensation, the SHO recognized that
relator had not been able to secure employment while participating in vocational
rehabilitation services. However, in finding that she was able to perform sedentary work
activity with limitations regarding her right shoulder, the SHO determined that she was
capable of some sustained remunerative employment.
        {¶ 46} After her first application was denied, relator was referred for further
vocational rehabilitation services. However, based on a finding that she had already been
given the tools and taught the skills necessary for an independent job search and because
there were no new and changed circumstances in her restrictions since 2012, she was
deemed not feasible for further vocational rehabilitation participation.      Despite the
finding by the commission in denying her first application for PTD compensation and the
vocational rehabilitation specialist's opinion that she was capable of pursuing an
independent job search and engaging in sustained remunerative employment, relator
acknowledges that she did not do so. Because the commission found, in 2013, that she
was capable of securing employment, her failure to do so can be considered by the
commission as evidence that she chose not to. The voluntary nature of abandonment of
employment is a factual question for the commission to determine on a case-by-case
basis. See State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 Ohio St.3d
381 (1989) and State ex rel. Floyd v. Formica Corp., 140 Ohio St.3d 260, 2014-Ohio-
3614.
No. 15AP-1035                                                                           18


      {¶ 47} Relator also argues that, from a psychological standpoint, she was incapable
of working and, as such, is incapable of looking for work. Relator's argument ignores the
fact that, in July 2013, the commission determined that both the allowed physical and
psychological conditions permitted her to perform sustained remunerative employment.
Despite this finding, relator acknowledges she did not look for work. It was not until
December 2014 that Dr. Giessler opined that her psychological condition precluded
employment. Relator made no effort to secure employment in those 18 months. Had she
sought employment, she may or may not have been successful. Given her failure to even
try to find work, the magistrate finds that the commission did not abuse its discretion in
finding that she voluntarily abandoned the workforce.
       {¶ 48} Finding that the commission did not abuse its discretion and finding that
relator's failure to make a job search or secure employment after her first application for
PTD compensation was denied constitutes some evidence upon which the commission
could rely to find that she had voluntarily abandoned the workforce, and the magistrate
finds that the commission did not abuse its discretion in denying her application for PTD
compensation. As such, 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).
