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

November 3, 2011

STATE OF OHIO EX REL.
JAMES JONES, RELATOR,
v.
INDUSTRIAL COMMISSION OF OHIO
AND SET SILICA SAND INC., RESPONDENTS.



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

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

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶1} Relator, James Jones, commenced this original action in mandamus seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying his application for permanent total disability ("PTD") compensation and to enter an order granting said compensation.

{¶2} Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate found that the commission: (1) adequately considered relator's education; (2) properly addressed his work history; (3) was not required to discuss relator's attempts at vocational rehabilitation in this case; and (4) considered the impact of relator's psychological condition. Therefore, the commission did not abuse its discretion in denying relator PTD compensation. Accordingly, the magistrate has recommended that we deny relator's request for a writ of mandamus.

{¶3} Relator has filed four objections to the magistrate's decision. In his first objection, relator contends that the magistrate erred in determining that the commission properly addressed relator's work history and, specifically, any transferable skills. We disagree.

{¶4} Although it did not expressly use the phrase "transferable work skills," the commission's order identifies a number of transferable skills that relator acquired through past employment and training. Specifically, the commission noted that relator has skills in welding, tow motor operation and the completion of work orders associated with shipping and receiving. Therefore, we disagree with relator's assertion that the commission made no determination regarding his transferable skills.

{¶5} We also disagree with relator's assertion that the magistrate crafted a new basis to support the commission's order. The magistrate's reference to "record keeping" work is simply another way to express relator's experience using his reading and writing skills to complete work orders and to read and write merchandise and shipping orders. The magistrate did not craft a new basis to support the commission's order.

{¶6} Lastly, we disagree with relator's assertion that the magistrate held that the commission did not have to consider relator's transferable work skills in that analysis. The magistrate simply pointed out that unskilled work does not require transferable skills. Regardless of the magistrate's comment, the commission clearly identified and considered a number of transferable skills acquired by relator through past training and employment. For these reasons, we overrule relator's first objection.

{¶7} Relator argues in his second objection that the magistrate erred in determining that the commission adequately considered relator's educational abilities. Relator contends that the commission failed to make a determination regarding his educational level or to explain how relator's educational abilities support the denial of PTD compensation. We disagree.

{¶8} As noted by respondent, the commission is not required to make a specific determination regarding a claimant's level of education. The commission is only required to consider a claimant's education, along with other non-medical factors such as the claimant's age and work history, in assessing the claimant's ability to perform work within the provided physical restrictions. State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167.

{¶9} Here, the commission considered and adequately discussed relator's education in its assessment of the non-medical factors. The commission noted that relator completed 11 years of formal education and left school for reasons unrelated to his academic performance. Relator could read, write and perform basic math equations. His educational abilities were sufficient to enable relator to complete specialized training programs as well as to fill out paperwork associated with shipping and receiving duties required by past employment. This discussion of relator's education and how it affects his ability to perform light duty and sedentary work, is sufficient under Stephenson. We agree with the magistrate that the commission did not abuse its discretion in its assessment of relator's education.

{¶10} Moreover, contrary to relator's contention, the magistrate's decision does not create a rule that requires relator to prove that he brought certain evidence regarding his educational abilities to the attention of the commission. The magistrate only pointed out that it is unclear whether relator did so in this case. Nevertheless, the evidence of relator's educational abilities is contained in three vocational reports that are part of the stipulated record. While the commission is required to consider all evidence in the record, it is not required to rely on vocational reports because the commission is the exclusive evaluator of disability. State ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266, 1997- Ohio-152; State ex rel. Singleton v. Indus. Comm., 71 Ohio St.3d 117, 1994-Ohio-188. In assessing relator's education, the commission relied on relator's PTD application. Because the PTD application is some evidence supporting the commission's decision, the commission did not abuse its discretion. Nor was the commission required to state why it did not rely upon the vocational reports.

{¶11} We also disagree with relator's assertion that the magistrate's discussion of State ex rel. McKenzie v. Indus. Comm., 10th Dist. No. 05AP-1309, 2006-Ohio-5944, State ex rel. Stamm v. Harm & Ring Mechanical, Inc., 10th Dist. No. 05AP-742, 2006- Ohio-3108, and State ex rel. Adair v. Reading Restaurants, Inc., 10th Dist. No. 03AP- 1130, 2004-Ohio-5254 implies that these cases were considered as evidence supporting the commission's decision. The magistrate cited these cases as illustrative of the legal principles at issue and how those principles have been applied in similar factual scenarios. The magistrate did not treat these cases as evidence.

{¶12} For the foregoing reasons, we overrule relator's second objection.

{¶13} In his third objection, relator contends that the magistrate erred in determining that the commission adequately considered relator's psychological condition in assessing the non-medical factors. Again, we disagree.

{¶14} Relator correctly points out that Stephenson and its progeny required the commission to consider how his medical and psychological restrictions, viewed in the context of the relevant Stephenson factors, impacted relator's ability to engage in sustained remunerative employment. Relator is incorrect in asserting that the commission failed to conduct this analysis.

{¶15} The commission identified and discussed both the medical and psychological reports upon which it relied. The commission also referenced both reports in assessing the Stephenson factors. We agree with the magistrate that the commission conducted the required analysis. Therefore, we overrule relator's third objection.

{¶16} In his fourth and final objection, relator contends that the magistrate erred in determining that the commission was not required to consider relator's alleged lack of vocational rehabilitation potential or to explain how it supports the denial of PTD. We disagree.

{¶17} Although the commission did not expressly discuss relator's rehabilitation potential, it was not required to do so. Rehabilitation potential is not determinative of a claimant's PTD eligibility, and the commission did not abuse its discretion by not discussing it. State ex rel. Mobley v. Indus. Comm., 78 Ohio St.3d 579, 585, 1997-Ohio- 181. Moreover, as respondent points out, relator's alleged lack of rehabilitation potential was based solely upon Dr. Sassano's report. Relator submitted Dr. Sassano's report in support of his PTD application. In denying PTD, the commission relied on Dr. Gade- Pulido's report rather than on Dr. Sassano's report. Therefore, the commission found the only evidence of relator's purported lack of rehabilitative potential to be unpersuasive.

{¶18} We also disagree with relator's assertion that the magistrate usurped the power of the commission by noting that relator's one attempt at vocational rehabilitation in the 29 years following his injury might have been a negative factor. Although this speculation by the magistrate was unnecessary and irrelevant, it is not error. Therefore, we overrule relator's fourth objection.

{¶19} Following an independent review of this matter, we find that the magistrate has properly determined the facts and applied the appropriate law. Therefore, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we deny relator's request for a writ of mandamus.

Objections overruled;

writ of mandamus denied.

CONNOR and DORRIAN, JJ., concur.

APPENDIX

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

State of Ohio ex rel. James Jones, Relator, v. Industrial Commission of Ohio and Set Silica Sand Inc., Respondents.

No. 10AP-829

(REGULAR CALENDAR)

MAGISTRATE ' S DECISION Rendered on April 29, 2011

Stocker Pitts Co. LPA, and Thomas R. Pitts, for relator.

Michael DeWine, Attorney General, and Jeanna R. Volp, for respondent ...


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