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State of Ohio Ex Rel. v. Industrial Commission of Ohio

October 18, 2011

STATE OF OHIO EX REL.
GENNADIY RADKO, RELATOR,
v.
INDUSTRIAL COMMISSION OF OHIO
AND PLASKOLITE, INC., RESPONDENTS.



The opinion of the court was delivered by: Bryant, P.J.

Cite as State ex rel. Radko v. Indus. Comm.,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION

{¶1} Relator, Gennadiy Radko, commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its order denying his application for permanent total disability compensation and to find he is entitled to that compensation.

I. Facts and Procedural History

{¶2} Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued the appended decision, including findings of fact and conclusions of law. In her decision, she noted relator's arguments: (1) the medical factors alone preclude his future employment, but even if he can perform sedentary work, (2) the non-medical disability factors demonstrate he is unable to perform sustained remunerative employment. In resolving those arguments, the magistrate decided the commission did not abuse its discretion in determining: (1) relator was capable of performing some sedentary work within the noted physicians' physical and psychological restrictions, and (2) an evaluation of the non-medical disability factors reveals relator was capable of performing some sedentary employment. Accordingly, the magistrate determined the requested writ should be denied.

II. Objection

{¶3} Relator filed an objection to the magistrate's conclusions of law. Although relator does not specifically state the objection, relator generally contends the commission failed to appropriately assess the non-medical factors, but in particular relator's inability to speak fluent English. Relator's contentions are not persuasive.

{¶4} The commission specifically addressed the non-medical factors. The commission noted relator is 62 years of age, a factor the commission could consider positive in that relator had the potential to work a number of years. At the same time, the commission viewed relator's age as perhaps a negative factor with respect to his ability to learn new work skills and adapt to a new work environment. The commission ultimately concluded relator's age, a neutral factor, was not in itself "a basis to grant an award of permanent total disability compensation." (Magistrate's Decision, ¶25.)

{¶5} In terms of education, the commission concluded relator has the equivalent of a high school education because he obtained it in a foreign country and in a foreign language. The commission considered how that factor affected his employment with the employer here and his ability to learn the duties of that employment, obtain an Ohio's driver's license, procure a certification to drive tow motors, and become a United States citizen. Although the commission might have considered those factors positive absent the language issue, the commission, acknowledging the limitations of relator's limited proficiency in English, found his education to be a neutral factor that provided "the same capacity to acquire skills as a high school education obtained in this country." (Magistrate's Decision, ¶25.)

{¶6} Similarly, the commission found relator's prior employment a neutral factor to re-employment. In reaching that conclusion, the commission recognized relator has no transferable skills. Even so, the commission noted relator's excellent attendance record, as well as his ability to learn and to perform all of the tasks necessary to his job and to his 20 years of employment as a seaman.

{¶7} Considering relator's age, education, and work history, the commission in the end determined language was the only barrier to sedentary re-employment and indicated the commission reasonably could expect an injured worker to participate in return-to-work efforts including, in this case, developing fluency in the English language.

{¶8} The commission's analysis reflects its evaluation of the relevant non-medical factors, including the positive and negative aspects of each and relator's ability to improve his English language skills. The commission did not abuse its discretion in its assessing the non-medical disability factors and in ultimately deciding those factors support relator's ability to achieve reemployment. Relator's objection is overruled.

III. Disposition

{¶9} Following independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, we deny the requested writ of mandamus.

Objection overruled;

writ denied.

SADLER and FRENCH, JJ., concur.

No. 10AP-1015 5

APPENDIX

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

State of Ohio ex rel. Gennadiy Radko, Relator, v. Industrial Commission of Ohio and Plaskolite, Inc., Respondents.

No. 10AP-1015

(REGULAR CALENDAR)

MAGISTRATE ' S DECISION

Rendered on May 23, 2011

Agee, Clymer, Mitchell & Laret, and Robert M. Robinson, for relator. Michael DeWine, Attorney General, and Latawnda N. Moore, for respondent Industrial Commission of Ohio. Vorys, Sater, Seymour & Pease, LLP, Bradley K. ...


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