State ex rel. Dominic J. Falgiani, Relator,
Industrial Commission of Ohio and Altronic Inc., Respondents.
MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION
brief: Heller, Maas, Moro & Magill Co., LPA, Joseph A.
Moro, and Patrick J. Moro, for relator.
brief: Michael DeWine, Attorney General, and Shaun P. Omen,
for respondent Industrial Commission of Ohio.
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
3} Relator has filed the following objection to the
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.
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
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
(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.
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,