[Cite as State ex rel. Floyd v. Indus. Comm., 2016-Ohio-5859.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel. Charles W. Floyd,                :

                 Relator,                              :

v.                                                     :            No. 15AP-1019

The Ohio Industrial Commission and                     :         (REGULAR CALENDAR)
Delmas Conley Trucking of Ohio, Inc.
d.b.a. Conley Trucking,                                :

                 Respondents.                          :


                                            D E C I SI O N

                                   Rendered on September 15, 2016


                 Spears & Associates Co., L.P.A., and David R. Spears, for
                 relator.

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


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.

        {¶ 1} Charles W. Floyd filed this action in mandamus seeking a writ to compel the
Industrial Commission of Ohio ("commission") to grant his application for permanent
total disability ("PTD") compensation.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings.
        {¶ 3} The parties stipulated the pertinent evidence and filed briefs.         The
magistrate then issued a magistrate's decision, attached hereto, which contains detailed
No. 15AP-1019                                                                               2

findings of fact and conclusions of law.           The magistrate's decision includes a
recommendation that we deny the request for a writ.
       {¶ 4} Counsel for Floyd has filed objections to the magistrate's decision. Counsel
for the commission has filed a memorandum in response. The case is now before the
court for a full, independent review.
       {¶ 5} Floyd was a truck driver with minimal education and minimal educational
skills such as reading and math. His injuries have taken him out of the range of people
who can serve as a truck driver.
       {¶ 6} Floyd tried to obtain rehabilitation services, but his file was closed due to his
intellectual limitations, and due to the amount of pain he experiences if he tried to
perform tasks above head level or below waist level. However, hope was expressed that if
he could improve his strength or intellectual functioning, his file could be reopened.
       {¶ 7} Floyd's challenges are both physical and emotional. He would have trouble
working in close proximity with other people. He has ongoing neck and back problems.
Floyd apparently feels he is only suited to being a truck driver, and can no longer be a
truck driver.
       {¶ 8} Counsel for Floyd sets forth three specific issues for our consideration:
                [I.] THE CONCLUSION OF THE MAGISTRATE THAT THE
                RELATOR NEVER ATTEMPTED TO IMPROVE HIS
                PHYSICAL SITUATION SO HE COULD PARTICIPATE IN
                VOCATIONAL REHABILITATION IS NOT BASED UPON
                THE RECORD AND CONSTITUTED LEGAL ERROR.

                [II.] THE MAGISTRATE INCORRECTLY DETERMINED
                THAT THE BWC, WHEN AFFIRMING A CLOSURE OF A
                VOCATIONAL REHABILITATION FILE, SPECIFICALLY
                RECOMMENDED THAT THE RELATOR PARTICIPATE IN
                PAIN MANAGEMENT AND A HOME EXERCISE PROGRAM
                SO HE COULD POTENTIALLY MANAGE HIS PAIN BETTER
                AND INCREASE THE LEVEL OF WORK HE WAS CAPABLE
                OF PERFORMING.

                [III.] THE DECISION OF THE MAGISTRATE FAILED TO
                ADDRESS THE ARGUMENT RAISED BY RELATOR IN HIS
                MERIT BRIEF PERTAINING TO THE COMMISSION'S
                FAILURE TO EXPLAIN WHY POSITIVE VOCATIONAL
                EVIDENCE WAS NOT CONSIDERED AND FAILED TO
                ADDRESS ARGUMENTS OF THE RELATOR THAT THE
No. 15AP-1019                                                                             3

               DECISION OF THE OHIO INDUSTRIAL COMMISSION
               INACCURATELY ASSESSED RESTRICTIONS SET FORTH
               IN THE MEDICAL REPORTS OF DR. KEARNS AND DR.
               RICHETTA.

       {¶ 9} Part of the challenge Floyd has to overcome in order to get the commission
to approve his application for PTD compensation is the fact he is a relatively young man, a
man in his late 40's. However, his brain is basically fully developed. He perhaps could
improve his reading skills or his skills in mathematics, but his intellectual ability on the
whole is relatively fixed.
       {¶ 10} The same is not true for his physical strength and endurance. His muscles
can be made stronger and his physical endurance can improve. As a result, his ability to
perform light-duty work at waist level could improve.
       {¶ 11} The record before us indicates that no further medical procedures are
warranted and that Floyd has reached maximum medical improvement ("MMI").
However, MMI is a medical plateau, not a permanent condition which is capped from all
improvement resulting from nonmedical efforts.
       {¶ 12} We do not disagree with our magistrate's findings in this regard and
therefore overrule the first objection.
       {¶ 13} As to the second objection, the magistrate's decision accurately reflects the
findings of Jennifer Beale which resulted the closing for Floyd's rehabilitation. The report
clearly suggests that if Floyd applies himself to improving his situation with respect to
pain, new efforts at rehabilitation could be pursued.
       {¶ 14} The second objection is overruled.
       {¶ 15} We do not see the decision of the commission as inaccurately assessing the
restriction proved by Dr. Kearns and Dr. Richetta. As a result, the third objection is
overruled.
       {¶ 16} All three sets of objections having been overruled, we adopt the findings of
fact and conclusions of law contained in the magistrate's decision. We, therefore, deny
the request for a writ of mandamus.
                                                        Objections overruled; writ denied.

                             KLATT and SADLER, JJ., concur.
                                     _________
No. 15AP-1019                                                                             4

                                     APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


State of Ohio ex rel. Charles W. Floyd,      :

              Relator,                       :

v.                                           :                     No. 15AP-1019

The Ohio Industrial Commission and           :               (REGULAR CALENDAR)
Delmas Conley Trucking of Ohio, Inc.
d.b.a. Conley Trucking,                      :

              Respondents.                   :



                         MAGISTRATE'S DECISION

                                Rendered on May 17, 2016



              Spears & Associates Co., L.P.A., and David R. Spears, for
              relator.

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


                                     IN MANDAMUS

       {¶ 17} Relator, Charles W. Floyd, 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 his application for permanent total
disability ("PTD") compensation and ordering the commission to find that he is entitled to
that compensation.


Findings of Fact:
No. 15AP-1019                                                                              5

       {¶ 18} 1. Relator sustained a work-related injury on December 4, 2002, and his
workers' compensation claim was originally allowed for the following conditions:
              Sprain lumbar region; sprain of neck; contusion of lumbar
              back; C3-4 disc protrusion causing foraminal stenosis.

       {¶ 19} 2. Relator's claim was specifically disallowed for: "disc bulge C4-5."
       {¶ 20} 3. Relator underwent surgery and received temporary total disability
("TTD") compensation from October 30, 2009 through October 19, 2011 when his TTD
compensation was terminated based upon a finding that his allowed conditions had
reached maximum medical improvement ("MMI").
       {¶ 21} 4. Because he was unable to return to his former position of employment,
relator was referred for vocational rehabilitation services on October 14, 2011.          A
functional capacity evaluation ("FCE") was ordered and indicated that relator's overall
strength level was light but that he had significant difficulty with repetitive or sustained
reaching activities. During the vocational evaluation, relator complained of increasing
and spreading pain and discomfort in both shoulders and upper extremities.               The
evaluator noted that relator had worked approximately 15 years as a dump truck driver.
At the time, relator was 46 years of age, had left school after the 10th grade, had not
obtained a GED, and, according to the Wide Range Achievement Test, was functioning at
the 4th and 5th grade levels on oral reading, spelling, and arithmetic tasks. The evaluator
noted that relator did not believe he was capable of performing any work other than his
prior work as a dump truck driver. The evaluator also noted the absence of readily
accessible transferrable skills and suggested that relator would need specific vocational
preparation to equip him with skills necessary to successfully compete with other workers
for jobs which fit within his current physical tolerance level.
       {¶ 22} 5. On December 12, 2011, it was determined that, based on the vocational
evaluation as well as the FCE, relator did not appear to be a feasible candidate for further
vocational rehabilitation services. As such, the employer's Managed Care Organization
("MCO") closed relator's vocational rehabilitation file.
       {¶ 23} 6. Relator challenged the closure of his vocational rehabilitation file.
       {¶ 24} 7. Jennifer Beale reviewed relator's vocational rehabilitation file, and,
although she noted that closure was appropriate at that time, she indicated that relator
No. 15AP-1019                                                                             6

should be referred again at a later date. Specifically, in her January 9, 2012 report, Beale
stated:
              Upon review of the BWC claim documents, it is this peer
              reviewers professional opinion that the IW's file remain
              closed. The IW was referred to the vocational rehab program
              by his POR. He was met by the VCM for his IA and the IW
              wanted to participate in services. The POR requested an FCE
              and active physical therapy for strengthening. According to
              the FCE results the IW demonstrated light strength overall
              with significant difficulty with repetitive or sustained
              reaching. The evaluator concluded that "the light physical
              demand capacity combined with the limited reaching ability
              will make competitive employment very challenging for the
              IW." The evaluator also noted that he "did not believe the IW
              would be a viable candidate for a vocation within his prior
              occupation of truck driving due to his limited cervical range
              or motion and guarded movement." Moreover a
              comprehensive vocational evaluation was completed and
              during the evaluation the IW was observed by the evaluator
              to be experiencing pain and discomfort in his shoulders and
              upper extremities to the point that it interfered with his
              ability to perform sedentary tasks. The IW also was noted to
              have tested at a 4th and 5th grade reading levels on oral
              reading, spelling and arithmetic tasks. This as well as the
              lack of accessible transferable skills suggested by the
              evaluator that the IW was not feasible for the vocational
              rehab program. This peer reviewer is in agreement with
              these conclusions.

              ***

              Treatment Modification/Recommendations * * *:

              The IW should continue to follow up with his POR as
              indicated and perform a [Home Exercise Program]. The HEP
              as well as pain management may assist the IW in regaining
              some pain relief and be able to perform at a medium level of
              work. This may allow him to be able to work a light labor
              position or other work he feels he can perform in the future.
              The POR can refer him to the vocational rehab program at a
              later date and he may be able to participate in job placement
              and development if he is medically stable at that time. Since
              he is only 46 it would be a shame if he could not reenter the
              work force due to lack of transferable skills and low
              educational level. If the IW wants to work he should discuss
No. 15AP-1019                                                                            7

                 this with his POR and possibly obtain a release to RTW when
                 he is able and seek a job that he feels he can perform.

        {¶ 25} 8. In an order mailed January 18, 2012, the Ohio Bureau of Workers'
Compensation ("BWC") relied on the Beale report and affirmed the closure of relator's
file, stating:
                 Per the peer review of Jennifer Beale, CRRN of 1/9/2012, she
                 states upon review of the claim documents, it is this reviewer's
                 opinion that the injured worker's file remain closed. The
                 injured worker['s] physician of record (POR) requested a
                 functional capacity exam (FCE). According to the FCE results
                 the injured worker demonstrated light strength overall with
                 significant difficulty with repetitive or sustained reaching. The
                 evaluator concluded that "the light physical demand capacity
                 combined with the limited reaching ability will make
                 competitive employment challenging for the injured worker."
                 The evaluator noted that he "did not believe the injured
                 worker would be a viable candidate for a vocation within his
                 prior occupation of truck driving due to his limited cervical
                 range or motion and guarded movement." The lack of
                 accessible transferable skills suggested by the evaluator that
                 the injured worker was not feasible for the vocational rehab
                 program. The POR can refer him to the vocation rehab
                 program at a later date, if he is medically stable at that time

        {¶ 26} 9. Soon thereafter, relator filed his first application for PTD compensation
on February 6, 2012.
        {¶ 27} 10. A hearing was held before a staff hearing officer ("SHO") on
November 15, 2012. The SHO denied relator's application after relying on the report of
Dr. Eugene Lin, M.D., who concluded relator had no focal motor or sensory deficits in his
right upper extremity and only mildly limited flexion and extension on range of motion
testing. Dr. Lin concluded that relator was capable of performing light-duty work with the
further limitation of lifting only five pounds overhead on an occasional basis.
        {¶ 28} The SHO noted that relator was only 47 years old and acknowledged that
the vocational report indicated his current academic skills were at the 4th and 5th grade
level; however, the SHO noted that the report did not indicate whether or not relator had
the intellectual ability to further increase his academic abilities and/or obtain his GED.
The SHO further noted that relator had not submitted any evidence which would
demonstrate that such academic enhancement was not possible. Finding that there were
No. 15AP-1019                                                                             8

a number of light-duty, unskilled jobs that required no greater education level than what
relator currently had and because relator had not demonstrated that he lacked the
intelligence to improve his academic skills if necessary to obtain other work, the SHO
concluded that relator was not entitled to an award of PTD compensation.
       {¶ 29} 11. Relator filed a motion for reconsideration which was initially granted by
the commission. However, the commission ultimately determined that relator had not
met his burden of proving sufficient grounds to justify the exercise of continuing
jurisdiction and the order denying his application for PTD compensation was upheld.
       {¶ 30} 12. At some point, relator's claim was additionally allowed for the
psychological condition of "depressive disorder," and relator indicates that he received a
period of TTD compensation beginning June 15, 2013 until September 18, 2014.
       {¶ 31} 13. Relator filed his second application for PTD compensation on
January 6, 2015. In support of his application, relator submitted the November 19, 2014
report of his treating psychologist Christopher C. Ward, Ph.D., who indicated that relator
had been receiving regular psychotherapy but that his improvement had been marginal.
Noting that relator's symptoms included depressed mood most of the day, diminished
interest in previously enjoyed activities, poor sleep, fatigue, feelings of worthlessness,
poor concentration, difficulty making decisions, and occasional suicidal ideations, Dr.
Ward noted that relator had become increasingly isolated and that, in his opinion, from a
psychological stand point, relator was unable to perform even unskilled sedentary jobs.
       {¶ 32} 14. An independent medical evaluation was conducted by Joseph Kearns,
D.O. In his February 17, 2015 report, Dr. Kearns identified the allowed conditions in
relator's claim, identified the medical records which he reviewed, provided his physical
findings upon examination, and concluded that relator's allowed physical conditions had
reached MMI, that relator had a 27 percent whole person impairment based on the
allowed physical conditions, stating:
              Given his neck surgery and limited motion he would have
              difficulty performing things above head level or below waist
              level. He would be limited in the weight he is able to lift, he
              would be limited in bending and twisting activity. Because of
              his medications he would be limited in his commercial
              driving activity. As such he would generally be in a light
              work category exerting up to 20 pounds of force occasionally
              and 10 pounds frequently.
No. 15AP-1019                                                                            9


       {¶ 33} 15. Raymond D. Richetta, Ph.D., examined relator for his allowed
psychological condition. In his March 15, 2015 report, Dr. Richetta identified the allowed
conditions in relator's claim, reviewed the past medical treatment for both his physical
and psychological conditions, and identified the medical records which he reviewed. Dr.
Richetta noted that relator's emotional status was mildly depressed. Dr. Richetta also
noted there was no evidence of perceptional disturbances and that relator's speech
indicated he was able to process information and come to reasonable conclusions but that
his cognitive functions were somewhat impaired. Dr. Richetta opined that relator had a
class 2 mild impairment with regards to activities of daily living and concentration and
that relator had a class 3 moderate impairment with regards to social functioning and
adaptation. Dr. Richetta concluded that overall relator had a class 2 mild impairment
resulting in a 20 percent whole person impairment due solely to the allowed psychological
condition. Dr. Richetta concluded that relator was capable of performing work with
further limitation:
              He is able to engage in low-stress work that has a predictable
              routine. He is unable to work where he would have to
              rapidly process information or attend to find detail. He
              would be unable to work with the general public due to
              discomfort in groups.

       {¶ 34} 16. The BWC referred relator to Jennifer J. Stoeckel, Ph.D., for a
psychological evaluation. In her September 16, 2014 report, Dr. Stoeckel identified the
allowed conditions in relator's claim and discussed the medical records which she
reviewed. Ultimately, Dr. Stoeckel opined that relator's allowed psychological condition
had reached MMI, that psychologically he would be able to return to his previous
employment as a dump truck driver as well as similar employment, and, furthermore,
that he would be capable of low stress occupations. Relator reported reduced endurance;
however, Dr. Stoeckel noted he was fairly social, related appropriately, and was capable of
labor-type positions. Concerning vocational rehabilitation, Dr. Stoeckel noted that relator
had previously been found unfeasible for vocational rehabilitation and did not discuss the
matter further.
       {¶ 35} 17. Relator's PTD application was heard before an SHO on May 12, 2015
and was denied. The SHO relied on the report of Dr. Kearns and concluded that relator
No. 15AP-1019                                                                             10

was able to perform work activity within those restrictions. Further, the SHO discussed
the psychological reports of Drs. Stoeckel and Richetta, and specifically adopted the
conclusions contained in Dr. Richetta's report.
       {¶ 36} Thereafter, the SHO noted that relator's age of 49 years was a positive factor
in evaluating his re-employment potential. The SHO indicated that relator had a 10th
grade education, had been able to obtain a CDL license, and maintain typical truck logs
that reported an ability to read, write, and perform basic math but not well. Noting that
relator's academic qualifications were limited, the SHO agreed with the determination
from the prior hearings indicating that there had not been a showing that relator lacked
either the capacity or the time to acquire the basic skills necessary for typical entry-level
work. Although noting that relator was not physically able to engage in his former work
as a dump truck driver, the SHO concluded that his education and work experience, taken
together, would not prevent him from acquiring the basic skills for work within his
residual capacities.
       {¶ 37} In denying relator's application for PTD compensation, the SHO concluded:
              The independent medical evaluations found the Injured
              Worker physically capable of engaging in light duty work
              activities, with some additional restrictions. Psychologically,
              the Injured Worker does have minor restrictions on his
              ability to engage in higher stress, or more complex tasks, but
              typical entry level low stress activities are within his
              capabilities.

              Taking these factors together, an award of permanent total
              disability compensation is not indicated. Permanent total
              disability compensation is compensation of last resort, to be
              awarded only in cases where the Injured Worker has
              demonstrated that he has lost the entirety of his capacity to
              engage in sustained remunerative employment, or to obtain
              the skills to engage in sustained remunerative employment.
              The Injured Worker's age certainly would not prevent
              obtaining those skills. He has at least basic academic
              capabilities. Typical entry level light manufacturing positions
              which do not require high speed work, or extensive
              interaction with the public are clearly within the Injured
              Worker's residual capacities. Other positions, with up to 30
              days training, would also not be beyond those capacities. The
              application to be awarded permanent total disability
              compensation is denied.
No. 15AP-1019                                                                              11


       {¶ 38} 18. Relator filed a request for reconsideration which the commission set for
hearing.
       {¶ 39} 19. The commission heard relator's request for reconsideration on
September 22, 2015 and ultimately determined that relator had failed to meet his burden
of proving sufficient grounds to justify the exercise of continuing jurisdiction and noted
that the SHO's order denying his application for PTD compensation remained in full force
and effect.
       {¶ 40} 20. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 41} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 42} 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).
       {¶ 43} 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).
       {¶ 44} Relator argues that the commission abused its discretion in the manner in
which it considered the non-medical disability factors. Specifically, relator asserts the
record is clear that he does not have the academic ability or aptitude for re-education or
retraining. In fact, relator asserts that there is unrebutted evidence from the vocational
rehabilitation evaluator indicating that he did not have the capacity or the ability for
No. 15AP-1019                                                                              12

vocational or academic enhancement. Relator also asserts that the commission
inaccurately assessed his limitations and that his inability to perform a full range of light-
duty employment precludes employment.
       {¶ 45} In the present case, the commission relied upon the medical report of Dr.
Kearns who evaluated relator for his allowed physical conditions. Dr. Kearns found that
relator's allowed physical conditions had reached MMI, assessed a 27 percent whole
person impairment, and concluded that he could perform work activity with the following
restrictions:
                Given his neck surgery and limited motion he would have
                difficulty performing things above head level or below waist
                level. He would be limited in the weight he is able to lift, he
                would be limited in bending and twisting activity. Because of
                his medications he would be limited in his commercial
                driving activity. As such he would generally be in a light work
                category exerting up to 20 pounds of force occasionally and
                10 pounds frequently.

       {¶ 46} Ohio Adm.Code 41213-3-34(B)(2)(b) states in part:

                "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: (1) when it
                requires walking or standing to a significant degree; or (2)
                when it requires sitting most of the time but entails pushing
                and/or pulling or arm or leg controls; and/or (3) 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.

       {¶ 47} Dr. Kearns specifically indicated that relator could perform activities
exerting up to 20 pounds of force occasionally and 10 pounds of force frequently. Those
weight limits fit squarely within the definition of light-duty work.              The Ohio
Administrative Code provides further that a job is rated as light-duty work (1) when it
requires walking or standing to a significant degree, or (2) requires sitting most of the
time but entails pushing and/or pulling of arm or leg controls, and/or (3) requires
working at a production rate pace entailing the constant pushing and/or pulling of
No. 15AP-1019                                                                           13

materials. Relator argues that because Dr. Kearns opined that he would have difficulty
performing activities above head level or below waist level and that he would be limited in
bending and twisting, it is clear he cannot perform a full range of light-duty work. The
magistrate disagrees with relator's assessment.
       {¶ 48} It must be remembered that the definitions in the Ohio Administrative Code
concerning work levels specifically indicate the highest exertional level which a job can
have and still be considered within that category. As such, light-duty work would include
any job which is greater than sedentary work but less than medium work (exerting 20 to
50 pounds of force occasionally and/or 10 to 25 pounds of force frequently). Contrary to
relator's assertion, there is nothing in the report of Dr. Kearns which would indicate that
relator could not perform light-duty work simply because he would have difficulty
performing work above shoulder level and below waist level. As such, the magistrate
specifically rejects this portion of relator's argument.
       {¶ 49} Relator also contends that the commission abused its discretion by finding
that "there has not been a showing that the Injured Worker lacks either the capacity or the
time to acquire the basic skills necessary for typical entry level work." Relator contends
that the vocational evidence is clear: he does not have the capacity to improve his
intellectual abilities.
       {¶ 50} In making this argument, relator asserts that his sincere best efforts at
vocational rehabilitation were not only ignored but were mischaracterized, and the
commission's order denying his application for PTD compensation contradicts the closure
of his vocational rehabilitation file.
       {¶ 51} Before relator's application for PTD compensation was filed, the employer's
MCO had closed his vocational rehabilitation file. As indicated previously in the findings
of fact, relator had challenged the determination of his employer's MCO to close his file,
and in an order mailed January 18, 2012, the BWC upheld the MCO's determination,
stating:
               Per the peer review of Jennifer Beale, CRRN of 1/9/2012, she
               states upon review of the claim documents, it is this
               reviewer's opinion that the injured worker's file remain
               closed. The injured worker['s] physician of record (POR)
               requested a functional capacity exam (FCE). According to the
               FCE results the injured worker demonstrated light strength
No. 15AP-1019                                                                                14

               overall with significant difficulty with repetitive or sustained
               reaching. The evaluator concluded that "the light physical
               demand capacity combined with the limited reaching ability
               will make competitive employment challenging for the
               injured worker." The evaluator noted that he "did not believe
               the injured worker would be a viable candidate for a vocation
               within his prior occupation of truck driving due to his limited
               cervical range or motion and guarded movement." The lack
               of accessible transferable skills suggested by the evaluator
               that the injured worker was not feasible for the vocational
               rehab program. The POR can refer him to the vocation rehab
               program at a later date, if he is medically stable at that time.

       {¶ 52} Approximately three weeks later on February 6, 2012, relator filed his first
application for PTD compensation. Thereafter, on March 8, 2012, a DHO affirmed the
BWC's decision to close relator's vocational rehabilitation file.
       {¶ 53} Relator's first application for PTD compensation was heard before an SHO
on November 15, 2012 and was denied based on a finding that relator could perform light-
duty work provided he lift no more than five pounds overhead on an occasional basis.
After discussing the non-medical disability factors, the commission determined (1) there
were unskilled sedentary and light-duty work which relator could perform, (2) there was
no evidence that relator could not complete 30 days of training to perform those tasks,
and (3) relator had time to obtain further education and retraining for light-duty and
sedentary work. As such, it is clear that although the BWC upheld the closure of relator's
vocational rehabilitation file, it was noted relator could again be referred for vocational
rehabilitation at a later date if medically stable at that time.
       {¶ 54} The commission relied on the January 9, 2012 report of Beale who
specifically recommended that relator follow-up with his physician of record, that he
should perform a home exercise program (designated as an HEP in her report), and that
the home exercise program and pain management might assist relator to regain pain
relief and allow him to perform at a medium level of work. Beale noted further that this
may also allow relator to work in a light-duty position or perform other work and may
enable his physician of record to refer him for vocational rehabilitation at a later date.
       {¶ 55} Contrary to relator's argument, when the BWC affirmed the closure of his
vocational rehabilitation file (after agreeing with Beale that his vocational rehabilitation
should remain closed), it was specifically recommended that relator participate in pain
No. 15AP-1019                                                                            15

management and a home exercise program so that he could potentially manage his pain
better and increase the level of work he was capable of performing. There is no evidence
in the record that relator ever did so. As such, relator's argument that he has been
deemed to not be a good candidate for vocational rehabilitation forever is not accurate.
Relator was only 47 years of age in 2012 when his first application for PTD compensation
was denied. Based, at least in part, on a finding that he had not presented sufficient
evidence that he was incapable of improving his opportunities, the vocational evidence in
2015 specifically noted that much of relator's difficulties in performing the testing had to
do with the amount of pain he was experiencing. Relator never attempted to improve his
physical situation so that he could participate in vocational rehabilitation. Instead, he
filed another application for PTD compensation less than one month later. The evidence
simply does not support relator's argument, and the magistrate finds that the commission
did not abuse its discretion in this regard.
       {¶ 56} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied his application
for PTD compensation, and this court should deny his 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).