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State ex rel. Falgiani v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

February 28, 2017

State ex rel. Dominic J. Falgiani, Relator,
v.
Industrial Commission of Ohio and Altronic Inc., Respondents.

         IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION

          On brief: Heller, Maas, Moro & Magill Co., LPA, Joseph A. Moro, and Patrick J. Moro, for relator.

          On brief: Michael DeWine, Attorney General, and Shaun P. Omen, for respondent Industrial Commission of Ohio.

          DECISION

          DORRIAN, J.

         {¶ 1} In this original action, relator, Dominic J. Falgiani, requests this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied his application for permanent total disability ("PTD") compensation, and ordering the commission to find relator is entitled to said 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 the request for a writ of mandamus.

         {¶ 3} Relator has filed the following objection to the magistrate's decision:

The Magistrates reliance upon State ex rel. Wood [v. Indus. Comm., 78 Ohio St.3d 414 (1997)] in finding that Dr. Gade-Pulido's [report] is not inconsistent is improper as that case inapplicable to the instant matter.

(Sic passim.)

         {¶ 4} Relator argues the magistrate incorrectly found that the commission did not abuse its discretion when it denied his application for PTD compensation. Specifically, relator argues that Dr. Karen Gade-Pulido's report is internally inconsistent and, therefore, cannot constitute "some evidence" to support the denial of PTD compensation. Relator argues that Dr. Gade-Pulido's report must be considered together with the definition of "light work" pursuant to Ohio Adm.Code 4121-3-34(B)(2)(b). Relator argues the magistrate erred in applying State ex rel. Wood v. Indus. Comm., 78 Ohio St.3d 414 (1997), because Wood is distinguishable from this case. In Wood, four doctors examined the claimant, listed the same restrictions, and found that he was physically capable of sedentary work; whereas in the case before us, only one doctor, Dr. Gade-Pulido, opined relator was capable of performing any type of work.

         {¶ 5} Relator concludes that according to the definition of light work set forth in Ohio Adm.Code 4121-3-34(B)(2)(b), relator would be: (1) unable to walk or stand to a significant degree, as documented by Dr. Dean DePerro, (2) unable to sit for most of the time as documented by Dr. DePerro and Shannon Valentine, and (3) unable to constantly push and/or pull materials as documented by Dr. Gade-Pullido, Dr. DePerro, and Valentine.

         {¶ 6} Because the commission did not rely on the reports of Dr. DePerro and Valentine in concluding that relator was capable of light work, we will not consider the same. Therefore, we will not address relator's first and second arguments, as well as his third argument to the extent it invokes Dr. DePerro's and Valentine's reports. Furthermore, we note that relator's specific objection is that the commission could not rely on Dr. Gade-Pulido's report because it was internally inconsistent. Therefore, we will only address relator's third argument to the extent it invokes Dr. Gade-Pulido's report and consider the proposition that it was internally inconsistent. This argument is essentially the same raised to and addressed by the magistrate.

         {¶ 7} The magistrate concluded:

Contrary to relator's argument, nothing n the definition of light-duty work would require a worker to perform overhead activities. As such, to the extent he asserts that Dr. Gade-Pulido's restriction that he avoid overhead use of his upper extremities precludes him from performing light-duty work, relator is incorrect. Further, nothing in the definition of light-duty work requires a worker to repetitively use their upper extremities. Exerting up to 20 pounds of force occasional, and/or up to 10 pounds of force frequently, does not necessarily require that those actions be performed repetitively. Also the fact that relator might not be able to perform a full range of light-duty work does not render Dr. Gade-Pulido's report inconsistent, nor does it invalidate the commission's conclusion that relator is capable of performing light-duty work. See State ex. rel Wood v. Indus. Comm., 78 Ohio St.3d 414 (1997).

(Appended Magistrate's Decision at ¶ 32.)

         {¶ 8} Ohio Adm.Code 4121-3-34(B)(2)(b) states:

"Light work" means exerting up to twenty pounds of force occasionally, and/or up to ten pounds of force frequently, and/or a negligible amount of force constantly (constantly: activity or condition exists two-thirds or more of the time) to move objects. Physical demand may be only a negligible amount, a job should be rated light work: (i) when it requires walking or standing to a significant degree; or (ii) when it requires sitting most of the time but entails pushing and/or pulling or arm or leg controls; and/or (iii) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.

(Emphasis added.)

         {¶ 9} Given the use of the term "and/or, " as well as the Supreme Court of Ohio's direction in Wood, we agree with the magistrate that the fact that relator might not be able to perform a full range of light-duty work, i.e. the constant pushing and/or pulling of materials, does not render Dr. Gade-Pulido's report inconsistent nor does it invalidate the commission's conclusion that relator is capable of performing light-duty work. We are not persuaded by relator's argument that the factual distinctions between Wood and the case before us render Wood inapplicable here. Here, the commission found, based on Dr. Gade-Pulido's report, ...


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