[Cite as State ex rel. Moore v. Indus. Comm., 2023-Ohio-3075.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Tamara C. Moore, : 

Relator, :

v. : No. 21AP-563

The Industrial Commission of Ohio et al., : (REGULAR CALENDAR)

 

Respondents. :

D E C I S I O N

Rendered on August 31, 2023 

On brief: Steven G. Thomakos, for relator.

On brief: Dave Yost, Attorney General, and Anna Isupova,

for respondent Industrial Commission of Ohio.

On brief: Krugliak, Wilkins, Griffiths & Dougherty Co.,

L.P.A., Edward D. Murray, and Amanda M. Connelly, for 

respondent GMI Holdings, Inc.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE’S DECISION

LELAND, J.

{¶ 1} Relator, Tamara C. Moore, commenced this original action requesting a writ 

of mandamus ordering respondent Industrial Commission of Ohio (“commission”) to 

vacate its order denying her request for permanent total disability (“PTD”) compensation 

and to enter an order granting 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. In that decision, the magistrate 

recommended this court deny relator’s request for a writ of mandamus. 
No. 21AP-563 2

{¶ 3} Relator has filed objections to the magistrate’s decision, challenging several

of the magistrate’s findings of fact (i.e., findings of fact Nos. 1, 2, 4, 6, and 9), and further 

asserting the magistrate erred in his conclusions of law by failing to find the commission’s 

basis for rejecting the reports of Douglas J. Pawlarczyk, Ph.D., and James M. Lyall, Ph.D., 

constituted an abuse of discretion. 

{¶ 4} Relator first objects to the magistrate’s finding of fact No. 1, asserting the 

magistrate “errs in failing to note the allowance of depression was made on March 27, 

2020.” (Relator’s Obj.’s at 1.) Relator argues that, while her industrial injury occurred on 

November 26, 1991, depression was allowed on March 27, 2020. 

{¶ 5} The magistrate, however, noted in finding of fact No. 1 that relator’s claims 

“were allowed for the following conditions: right shoulder sprain, myoneural disorder of 

long thoracic nerve, joint derangement right shoulder, and depressive disorder.” 

(Appended Mag.’s Decision at ¶ 18.) Thus, contrary to relator’s contention, the magistrate 

referenced relator’s psychological condition, i.e., “depressive disorder.” Finding no error, 

we overrule relator’s objection to finding of fact No. 1. 

{¶ 6} Relator next objects to the magistrate’s finding of fact No. 2, asserting the 

magistrate erred in “failing to recognize Relator was rejected on two occasions as ‘medically 

unstable’ for vocational rehabilitation.” (Relator’s Obj.’s at 1.) We note relator does not 

separately argue this objection in her brief.

{¶ 7} Relator’s contention that the magistrate failed to recognize she was 

previously rejected for vocational rehabilitation is without merit. The magistrate’s finding 

of fact No. 2 specifically notes: “Relator attempted to participate in rehabilitation, but on 

June 10, 1992, she was informed that she was not medically stable for participation in 

rehabilitation.” (Appended Mag.’s Decision at ¶ 19.) Further, the magistrate’s decision 

later noted relator “was referred to vocational rehabilitation in 1993.” (Appended Mag.’s

Decision at ¶ 38.) Finding no error, we overrule relator’s objection to finding of fact No. 2.

{¶ 8} Relator next objects to the magistrate’s findings of fact Nos. 4 and 6, 

concerning the magistrate’s discussion of the reports of Drs. Lyall and Pawlarczyk. 

Specifically, relator argues the magistrate failed to “outline the various testing” the 

psychologists performed “in rendering their opinions.” (Relator’s Obj.’s at 1.)
No. 21AP-563 3

{¶ 9} Relator cites no authority for the proposition that the magistrate was 

required to outline every psychological test performed, and we find this argument 

unpersuasive. Furthermore, the decision of the magistrate sets forth in detail the findings 

of Dr. Lyall’s report of February 4, 2021, as well as the findings of Dr. Pawlarczyk’s report 

of May 30, 2021. Relator’s objections to findings of fact Nos. 4 and 6 is therefore overruled.

{¶ 10} Relator further objects to finding of fact No. 6, asserting the magistrate erred 

in neglecting to find the report of Dr. Pawlarczyk: (1) lists all the allowed conditions, 

including depressive disorder, (2) indicates relator “would have ‘Markedly’ reduced pace in 

work-like tasks,” and (3) states “an anxiety [dis]order was noted from 8/26/2020 to 

1/13/2021 and was ‘indicated at this time.’ ” (Relator’s Obj.’s at 2.) 

{¶ 11} Notwithstanding relator’s first assertion, the decision of the magistrate notes 

that Dr. Pawlarczyk’s report found “claimant has reached [maximum medical 

improvement] for her allowed condition of depressive disorder.” (Appended Mag.’s

Decision at ¶ 23.) The magistrate also addressed the issue of reduced pace, finding the 

report of Dr. Pawlarczyk indicated “claimant demonstrated mild concentration problems 

and low energy level, which would reduce the pace of her work tasks and result in a 

noncompetitive level of efficiency in performing work.” (Appended Mag.’s Decision at 

¶ 23.) Finally, with respect to the issue of anxiety disorder, the magistrate cited the report 

of Dr. Pawlarczyk in which he observed “in pharmacological management notes[,] * * * Dr. 

[George] Moses indicates that claimant had been diagnosed with depressive disorder and 

unspecified anxiety disorder.” (Appended Mag.’s Decision at ¶ 23.) Here, the magistrate’s 

findings accurately reflect the report of Dr. Pawlarczyk, and we overrule relator’s objections 

to finding of fact No. 6.

{¶ 12} Relator also objects to finding of fact No. 9, asserting it is inaccurate and/or 

incomplete. Relator argues the magistrate erred by “failing to find ‘mild impairment’ is 

specifically referenced by the [staff hearing officer] as to ‘permanent partial impairment.’ ” 

(Relator’s Obj.’s at 2.) Relator further argues the magistrate erred in excluding “what the 

SHO said versus his interpretation.” (Relator’s Obj.’s at 2.) 

{¶ 13} Contrary to relator’s contention, the magistrate addressed the issue of mild 

impairment, noting the staff hearing officer (“SHO”) found “Dr. Pawlarczyk’s May 30, 2021, 

report is not persuasive evidence upon which she can rely, because Dr. Pawlarczyk opined 
No. 21AP-563 4

that the injured worker would not be able to tolerate stress typically encountered as part of 

the normal work week but also opined that the allowed conditions result in only a mild 

impairment.” (Appended Mag.’s Decision at ¶ 26.) Nor do we find persuasive relator’s 

assertion that the magistrate’s finding of fact No. 9 confuses the SHO’s findings with the 

magistrate’s own interpretation; a review of that finding reflects the magistrate accurately 

summarized the findings of the commission, through its SHO, based on the SHO’s PTD 

hearing and report. Relator’s objection to finding of fact No. 9 is overruled.

{¶ 14} Relator’s final objection is to the magistrate’s conclusions of law, asserting 

the magistrate erred in not finding the commission’s basis for rejecting the May 30, 2021 

medical report of Dr. Pawlarczyk, and the February 4, 2021 medical report of Dr. Lyall,

constituted an abuse of discretion. Relator’s objection challenges in general the magistrate’s 

discussion of those reports, and relator disagrees with the SHO’s determination that the 

reports contain internal inconsistencies and/or inaccurate factual information. We 

conclude, however, the magistrate did not err in interpreting the reports of Drs. Lyall and 

Pawlarczyk, and in finding the commission could have properly rejected those reports.

{¶ 15} The stipulated record indicates, as found by the magistrate, that the

commission considered both the physical and psychological conditions in the claim. Here,

the SHO found that neither the allowed physical and/or the allowed psychological 

conditions rendered relator permanently and totally disabled from all sustained 

remunerative employment. The SHO relied on the report of Dr. Paul Scheatzle, who opined 

relator was capable of performing light-duty work. The SHO also considered and discussed,

but found unpersuasive, the reports of Drs. Pawlarczyk and Lyall. The SHO further

considered the non-medical factors. Finally, the SHO found that relator, after being laid 

off in 2019 due to her employer’s decision to move most of the workforce out of the country,

refused participation in vocational rehabilitation. Based on this court’s review, we agree 

with the magistrate’s determination there was some evidence upon which the commission 

could find relator was capable of sustained remunerative employment, and we will not

reweigh the evidence presented to the commission. Because relator has failed to show the 

commission abused its discretion in denying the application for PTD compensation, we 

overrule relator’s objection to the magistrate’s conclusions of law.
No. 21AP-563 5

{¶ 16} Based on an independent review of the matter, we find the magistrate has 

properly determined the pertinent facts and applied the appropriate law. We therefore 

overrule relator’s objections, and 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 recommendation, we deny relator’s request for a writ of mandamus.

Objections overruled;

writ of mandamus denied.

JAMISON and BOGGS, JJ., concur.
No. 21AP-563 6

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Tamara C. Moore, : 

Relator, :

v. : No. 21AP-563

Industrial Commission of Ohio et al., : (REGULAR CALENDAR)

 

Respondents. :

M A G I S T R A T E ' S D E C I S I O N

Rendered on January 17, 2023

Steven G. Thomakos, for relator. 

Dave Yost, Attorney General, and Anna I. Isupova, for 

respondent Industrial Commission of Ohio.

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.,

Edward D. Murray, and Amanda M. Connelly, for 

respondent GEMI Holdings, Inc.

IN MANDAMUS 

{¶ 17} Relator, Tamara C. Moore ("claimant"), has filed this original action 

requesting this court issue a writ of mandamus ordering respondent, Industrial 

Commission of Ohio ("commission"), to vacate its order that denied claimant's request for 

permanent total disability ("PTD") compensation, and to enter an order granting the 

compensation.
No. 21AP-563 7

Findings of Fact:

{¶ 18} 1. On November 26, 1991, claimant sustained an industrial injury to her right 

shoulder when she was picking up a small motor while working for respondent Gemi 

Holdings, Inc. ("employer"). Her workers' compensation claims were allowed for the 

following conditions: right shoulder sprain, myoneural disorder of long thoracic nerve, 

joint derangement right shoulder, and depressive disorder. She received temporary total 

disability compensation. She never underwent any surgeries for her injury.

{¶ 19} 2. Relator attempted to participate in rehabilitation, but on June 10, 1992, 

she was informed that she was not medically stable for participation in rehabilitation, and 

her rehabilitation file was closed in January 1993. Without rehabilitation, she returned to 

restricted-duty work with the employer on February 1, 1993, and continued working there 

for approximately 28 years. However, she continued to have pain in her right shoulder and 

continued to receive medical treatment periodically.

{¶ 20} 3. On January 24, 2021, Timothy Lee Hirst, M.D., issued a report, in which 

he found the following: (1) claimant has a permanent and worsening series of conditions of 

the right shoulder; (2) any motion of the neck, thoracic area, lumbar sacral area, or left arm 

causes pain in the right shoulder; (3) the right shoulder impairs movement and mobility 

because of the pain; (4) claimant sleeps poorly with only one period of sleep and then the 

pain awakens her for the rest of the night, and she gets by with about four to five hours of 

sleep per night; (5) because of sleep deprivation, she is chronically tired and mentally 

clouded; (6) this is aggravated further by the medication that is required for her allowed 

conditions; (7) she spends about half of each day sitting or lying down caring for the 

shoulder pain; and (8) due to injuries in this claim, there is so little functional capacity and 

claimant is so affected by this condition and its required care, that there is no capacity for 

sustained remunerative employment. 

{¶ 21} 4. On February 4, 2021, James M. Lyall, Ph.D., issued a report, in which he 

found the following: (1) claimant "worked about a year and a half at the Genie Garage Door 

Company before her industrial injury on November 26, 1991"; (2) claimant "was off work 

about a year and a half or two years before returning to work[,]" and then worked "light 

duty work for a number of years";(3) when she was told she had to take up heavy-duty work 

again in August 2019, she was unable to continue and was laid off; (4) she states her 
No. 21AP-563 8

shoulder pain is constant and falls in a pain-range of 7 to 10; (5) she has developed a 

psychiatric condition to include major depressive disorder and has been under regular 

mental-health care since August 2020; (6) she is taking three different psychiatric 

medications and sees her psychiatrist regularly; (7) claimant's depressive symptoms are 

severe; (8) activities of daily living are moderate to severely impaired by the allowed 

psychological condition; (9) claimant leads a very inactive lifestyle, will sometimes skip 

bathing, is somewhat fearful of going into new social environments, and has significant loss 

of energy; (10) socialization skills appear to be severely impaired; (11) attention and 

concentration skills are moderately impaired; (12) adaptation and stress are severely 

impaired; (13) utilizing the AMA Guidelines for Impairment Due to Mental and Behavioral 

Disorders Second and Fifth Edition, claimant has moderate to severe impairment due to 

the allowed conditions of major depressive disorder; (14) individuals with this level of 

impairment are unable to engage in regular remunerative employment; and (15) clamant is 

permanently and totally disabled due exclusively to her allowed psychological condition.

{¶ 22} 5. Claimant was examined by Paul Scheatzle, D.O., at the request of the 

Bureau of Worker's Compensation ("BWC"), and on May 15, 2021, he issued a report, in 

which he found the following: (1) claimant has reached maximum medical improvement 

("MMI"); (2) based upon the allowed physical conditions, claimant has combined wholeperson impairments of 12 percent; (3) claimant has a loss of range of motion of the right 

shoulders and posterior winging of the right scapula; (4) claimant is unable to do overhead 

lifting with the right arm; (5) claimant is capable of light-duty work with no lifting above 

shoulder, climbing, or crawling; and (6) sitting, standing, and walking are not limited.

{¶ 23} 6. Claimant was examined by Douglas J. Pawlarczyk, Ph.D., at the request of 

the BWC, and on May 30, 2021, he issued a report, in which he found the following: 

(1) claimant has reached MMI for her allowed condition of depressive disorder; (2) in 

pharmacological management notes by George Moses, M.D., Dr. Moses indicates that 

claimant had been diagnosed with depressive disorder and unspecified anxiety disorder; 

(3) she continued to describe several symptoms of depression despite being prescribed 

medication to treat this condition; (4) claimant has a mild impairment corresponding to a 

24 percent whole-person impairment due to the allowed psychological condition of 

depressive disorder; (5) claimant has significant social withdrawal, which would negatively 
No. 21AP-563 9

affect her ability to interact with coworkers and supervisors; (6) claimant was, at times, 

irritable and pessimistic, which would negatively impact her ability to relate to others in the 

work setting; (7) claimant noted a desire to avoid others; (8) claimant demonstrated mild 

concentration problems and low energy level, which would reduce the pace of her work 

tasks and result in a noncompetitive level of efficiency in performing work; (9) claimant 

reported long-term sleep problems, which contribute to her low energy; and (10) claimant 

would be unable to tolerate stress encountered at work, and she would withdraw from 

others and be unable to persist at work tasks; and (11) there is a potential for claimant to 

engage in some suicidal behavior.

{¶ 24} 7. On August 31, 2019, claimant was laid off due to the employer's relocation 

of the workforce to Mexico.

{¶ 25} 8. On February 16, 2021, claimant filed a request for PTD. She relied upon 

the January 24, 2021, report of Dr. Hirst, and the February 4, 2021, report of Dr. Lyall.

{¶ 26} 9. On July 28, 2021, a staff hearing officer ("SHO") held a hearing on 

claimant's application for PTD, and on September 24, 2021, the SHO denied the application 

for PTD, finding: (1) claimant was not rendered permanently and totally disabled from all 

sustained remunerative employment due to the allowed physical and/or psychological 

conditions; (2) claimant is capable of performing light-duty work; (3) claimant's layoff in 

August 2019 was not due to her industrial injury but because the employer moved its 

workforce to Mexico; (4) claimant was able to work for 28 years for the employer following 

the industrial injury; (5) if the employer had not moved the workforce to Mexico, claimant 

would have continued to work for the employer; (6) following her layoff, claimant did not 

seek vocational rehabilitation because she believed she could not handle it due to the time 

it takes for her to keep up with things; (7) pain and sleep are her biggest stressors; 

(8) claimant's lack of sleep has been a chronic problem for a number of years, but she was 

still capable of working despite this issue; (9) the SHO relies upon Dr. Scheatzle's May 15, 

2021, report, in which he opined that the allowed physical conditions resulted in 12 percent 

permanent impairment to the whole body; claimant is capable of performing light work; 

claimant can sit, stand, walk, and lift with her right arm to shoulder height; and claimant 

cannot lift her right arm over her head and cannot climb or crawl; (10) claimant's current 

treatment consists of office visits one every three months with Dr. Nicholas Varrati and the 
No. 21AP-563 10

use of muscle relaxers, but she does not take any pain medications; (11) Dr. Pawlarczyk's 

May 30, 2021, report is not persuasive evidence upon which she can rely, because Dr. 

Pawlarczyk opined that the injured worker would not be able to tolerate stress typically 

encountered as part of the normal work week but also opined that the allowed conditions 

result in only a mild impairment; (12) claimant was capable of working light duty for 28 

years following the industrial injury; (13) the SHO rejects Dr. Pawlarczyk's report because 

it is internally inconsistent as he opined that the depressive disorder results in a mild 

impairment but then opined that claimant is rendered incapable of performing any 

sustained remunerative employment due to the depressive disorder condition; (14) Dr. 

Pawlarczyk indicates in his report that claimant has been diagnosed with a depressive 

disorder and unspecified anxiety disorder per notes from her primary care physician, 

George Moses, M.D., but the claim is not allowed for an anxiety disorder condition; (15) Dr. 

Moses prescribes claimant Wellbutrin, Buspar, and Lexapro since 2020 to treat her 

depressive and anxiety symptoms; (16) claimant received mental health treatment in 2012 

and attempted suicide by overdosing on Xanax medication in 2013, was psychiatrically 

hospitalized in 2013, had mental-health treatment prior to the allowance of the depressive 

disorder condition, and has had some chronic medical problems unrelated to her industrial 

injury; (17) the SHO rejects the February 24, 2021, report of Dr. Lyall, as he "incorrectly 

indicated that the Injured Worker had only worked for the Employer of record for one and 

[a] half years" instead of 29 years, and this fact is significant because the allowed depressive 

disordered did not impair claimant from performing light-duty work for 28 years following 

the industrial injury; (18) claimant last received TTD compensation on November 12, 2000, 

as she returned to work for her employer, which accommodated her physical restrictions; 

(19) claimant began receiving social security disability compensation on July 27, 2019; 

(20) claimant is 57 years old, she last worked when she was 55 years old, and her age is not 

a barrier for performing sustained remunerative employment; (21) claimant completed 

12th grade; completed high school; can read, write, and perform basic math; attended a 15-

month training program in medical billing in 2010; and discontinued college classes 

because she failed algebra; (22) claimant never pursued vocational rehabilitation in this 

claim; (23) claimant has a 29-year employment history in a light physical strength position; 

(24) claimant worked on her husband's dairy farm from the time of the industrial injury 
No. 21AP-563 11

until 1993 or 1994, until the farm was sold; (25) claimant worked on her husband's dairy 

farm fulltime from 1982 to 1991; (26) claimant's activities of daily living (letting the dogs 

out, washing dishes, watching television, feeding chickens, gathering eggs, cleaning, 

vacuuming, picking up, mopping, driving to the grocery store and doctor, doing laundry, 

mowing the lawn using a riding mower, and working in her small vegetable garden) are 

inconsistent with a finding that claimant is permanently and totally disabled; (27) despite 

claimant's testimony that she feels stressed and overwhelmed, claimant receives no 

psychotherapy because she does not believe it will help her, although she received 

psychotherapy six to eight months in 2008 or 2009; (28) claimant uses no pain medication 

for the allowed physical conditions; and (29) based upon the fact that clamant worked for 

the employer in a light-duty position for 28 years following the injury until she was laid off, 

that she refused participation in vocational rehabilitation, that she performs activities of 

daily living inconsistent with being unable to perform all sustained remunerative 

employment, that she refused psychotherapy treatment despite feeling stressed, and Dr. 

Scheatzle's report, the SHO does not find claimant is unable to perform any sustained 

remunerative employment due to the allowed conditions in the claim. 

{¶ 27} 10. On November 3, 2021, claimant filed a complaint for writ of mandamus, 

requesting that this court vacate the commission's order that denied her PTD 

compensation, and to enter an order granting the compensation.

Conclusions of Law and Discussion:

{¶ 28} The magistrate recommends that this court deny the employer's request for 

a writ of mandamus. 

{¶ 29} In order for this court to issue a writ of mandamus, a relator must ordinarily 

show a clear legal right to the relief sought, a clear legal duty on the part of the respondent 

to provide such relief, and the lack of an adequate remedy in the ordinary course of the law. 

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). In matters before it, the 

commission is the exclusive evaluator of the weight and credibility of the evidence. State ex 

rel. LTV Steel Co. v. Indus. Comm., 88 Ohio St.3d 284, 287 (2000). Therefore, to be entitled 

to an extraordinary remedy in mandamus, the relator must demonstrate, by clear and 

convincing evidence, that the commission abused its discretion by entering an order not 
No. 21AP-563 12

supported by any evidence in the record. State ex rel. WFAL Constr. v. Buehrer, 144 Ohio 

St.3d 21, 2015-Ohio-2305, ¶ 12. 

{¶ 30} The relevant inquiry in a determination of PTD is claimant's ability to do any 

sustained remunerative employment. State ex rel. Domjancic v. Indus. Comm., 69 Ohio 

St.3d 693 (1994). 

{¶ 31} It is well-settled that the commission is the exclusive evaluator of weight and 

credibility. LTV Steel Co. Therefore, not only is a magistrate not required to evaluate the 

propriety of the commission's finding that a doctor's report is persuasive, it is inappropriate 

for a magistrate to engage in such an analysis. State ex rel. Koepf v. Indus. Comm., 10th 

Dist. No. 18AP-753, 2019-Ohio-3789, ¶ 9. The commission is not required to note the 

evidence it finds unpersuasive or the reason for rejecting it, because "[l]ogic dictates that if 

the identity of rejected evidence is irrelevant, so is the reason for the rejection." State ex rel. 

Bell v. Indus. Comm., 72 Ohio St.3d 575, 578 (1995). Accordingly, the commission does not 

need to state why it found one doctor's report more persuasive than that of another doctor. 

Id. at 577. When, however, the commission states a reason for rejecting a report, it may not 

do so arbitrarily. State ex rel. Hutton v. Indus. Comm., 29 Ohio St.2d 9, 13-14 (1972). To 

avoid rejecting medical proof arbitrarily, the commission must have, "some reasonable 

basis for the * * * rejection of a physician's finding." State ex rel. Eberhardt v. Flxible Corp., 

70 Ohio St.3d 649, 655 (1994).

{¶ 32} In the present matter, claimant argues there was no reasonable basis for the 

SHO to reject Dr. Pawlarczyk's May 30, 2021, report and Dr. Lyall's February 4, 2021, 

report. Claimant asserts that, although there were conflicting medical reports as to whether 

her physical allowances eliminate her ability to engage in sustained remunerative 

employment, there was no conflict as to the psychological evidence, as both 

Drs. Pawlarczyk's and Lyall's reports opined that claimant is permanently and totally 

disabled as to the allowed psychological conditions.

{¶ 33} With regard to Dr. Pawlarczyk's report, claimant contests the SHO's rejection 

of Dr. Pawlarczyk's report on the basis that Dr. Pawlarczyk contradicted himself when he 

opined claimant would not be able to tolerate typical work stress while also opining that the 

allowed condition results in only mild impairment. Claimant contends that the only place 

Dr. Pawlarczyk mentions "mild impairment" is in his percentage of impairment evaluation, 
No. 21AP-563 13

and Ohio Adm.Code 4121-3-34(D)(3)(f) provides that an "adjudicator shall not consider the 

injured worker's percentage of permanent partial impairment as the sole basis for 

adjudicating an application for compensation for permanent total disability." 

{¶ 34} However, contrary to claimant's argument, Dr. Pawlarczyk did not consider 

claimant's percentage of impairment as the sole basis for denying claimant's application for 

compensation for PTD. The SHO denied claimant's PTD application for several reasons, 

including that claimant was able to perform light-duty work for the employer for 28 years; 

claimant was laid off only due to the employer's moving its workforce to Mexico; following 

her layoff, claimant did not seek vocational rehabilitation; claimant's lack of sleep has been 

a chronic problem for a number of years, but she was still capable of working despite this 

issue; Dr. Scheatzle opined that claimant is capable of performing light work, and can sit, 

stand, walk, and lift with her right arm to shoulder height; claimant does not take any pain 

medications; claimant did not pursue any vocational rehabilitation; claimant performs 

activities of daily living inconsistent with being unable to perform all sustained 

remunerative employment; and claimant refuses psychotherapy treatment despite feeling 

stressed. With respect to Dr. Pawlarczyk's report specifically, the SHO provided two more 

reasons for rejecting Dr. Pawlarczyk's report as some evidence: (1) Dr. Pawlarczyk failed to 

explain how claimant is unable to return to sustained remunerative employment yet 

worked for 28 years after her injury in a light-duty capacity; and (2) Dr. Pawlarczyk 

indicates in his report that claimant has been diagnosed with an unspecified anxiety 

disorder, but the claim is not allowed for an anxiety disorder condition. Therefore, because 

the SHO did not consider claimant's percentage of impairment as the sole basis for denying 

claimant PTD compensation, the SHO's decision did not run afoul of the prohibition in 

Ohio Adm.Code 4121-3-34(D)(3)(f).

{¶ 35} With regard to Dr. Lyall's report, claimant contests the SHO's finding that Dr. 

Lyall's report could not constitute some evidence because Dr. Lyall incorrectly stated 

claimant had only worked for the employer of record for one and one-half years. Claimant 

points out that Dr. Lyall actually stated claimant worked about a year and half at the 

employer prior to her industrial injury but then stated claimant worked a number of years 

in a light-duty capacity. 
No. 21AP-563 14

{¶ 36} After comparing the whole of Dr. Lyall's report with the SHO's finding, the 

magistrate finds Dr. Lyall's report somewhat unclear as to claimant's work history. 

Although Dr. Lyall states that claimant worked for Genie Garage Door Company for one 

and one-half years before the injury, the description of the rest of her work history is vague, 

and on one issue (the reason for her layoff), completely wrong. After stating that claimant 

worked for Genie Garage Door Company for one and one-half years prior to the injury, Dr. 

Lyall states that she returned to work about one and one-half to two years later but did not 

specify it was with the employer of record. Dr. Lyall then states claimant worked for "a 

number" of years, which similarly fails to specify such work was for the same employer of 

record and, more importantly, understates that claimant returned to work for 

approximately 28 years after the injury. Moreover, Dr. Lyall then states incorrectly that 

claimant was laid off because she was forced to do heavy work again, which is contrary to 

claimant's hearing testimony and the SHO's finding that claimant was not laid off due to 

her industrial injury but, instead, due to the employer's moving the workforce to Mexico. 

This obvious error in Dr. Lyall's report was significant, as the SHO concluded that had it 

not been for the employer's moving operations to Mexico, claimant would have continued 

to work for the employer, which further casts doubt on Dr. Lyall's opinion that claimant is 

incapable of working. 

{¶ 37} Thus, the SHO's statement that Dr. Lyall's report "incorrectly indicated that 

the Injured Worker had only worked for the Employer of record for one and [one-] half 

years" was technically correct, insofar as Dr. Lyall did not specifically indicate that the 

subsequent 28 years of employment was for the same employer of record. Notwithstanding, 

it is clear that in rejecting Dr. Lyall's report, the SHO found that the fact that claimant 

worked 28 years for the employer of record after her industrial injury was significant 

because the allowed depressive disorder did not impair claimant from performing lightduty work for this nearly three-decade span following the injury. The SHO was clearly 

troubled by claimant's 28-year post-injury work history, and Dr. Lyall's failure to 

adequately acknowledge or reconcile this fact with his finding that claimant cannot engage 

in sustained, remunerative employment. This is a valid basis for rejection of the report, as 

Dr. Lyall fails to answer a key question in this case: How did claimant's psychological 

condition render her permanently and totally disabled when considering she had worked 
No. 21AP-563 15

the prior 28 years in a light-duty position after her injury? See State ex rel. Pavis v. GMC, 

65 Ohio St.3d 30, 33 (1992) (where a doctor leaves a key issue unanswered, the commission 

is entitled to conclude that the medical report's persuasiveness is either diminished or 

negated, and rejection of that report is not arbitrary); State ex rel. Lockhart v. Indus. 

Comm., 10th Dist. No. 02AP-201, 2002-Ohio-6631, ¶ 106, citing Pavis (if it makes no sense 

that a left-knee injury would restrict relator to working at his home, then the commission 

can properly question why the doctor would have reached this opinion; when medical 

report raises obvious key questions that are left unanswered, the commission is entitled to 

conclude that the medical report's persuasiveness is either diminished or rejected). Thus, 

because the commission could have properly rejected Dr. Lyall's report based upon his 

failure to address a key issue in this case, the commission did not abuse its discretion when 

it did so. 

{¶ 38} Although claimant does not raise any further substantive arguments in the 

argument portion of her brief in support, in her reply brief, she does raise an issue regarding 

the magistrate's finding that the SHO had some evidence to support his findings that 

claimant failed to participate in vocational rehabilitation. The SHO had some evidence to 

support the finding. The SHO cited claimant's hearing testimony that she did not seek 

vocational rehabilitation because she did not know if she could handle rehabilitation and 

the pressure of trying to keep up with everything. Despite claimant's testimony that pain 

and lack of sleep are her biggest stressors, the SHO found that claimant's lack of sleep had 

been a problem for a number of years, but she was still capable of working during this time 

despite this issue. The implication is that the SHO believed claimant should have been 

capable of vocational rehabilitation if she was able to continue working light duty while 

suffering from pain and lack of sleep. Also, although claimant argues that the SHO was 

wrong and that she did, in fact, participate in vocational rehabilitation in 1992 but was 

found medically unstable, the magistrate's discussion, in this regard, specifically referred 

to the lack of vocational rehabilitation after she was laid off. Furthermore, the magistrate 

acknowledged claimant was referred to vocational rehabilitation in 1993. For all of these 

reasons, there was some evidence to support the commission's order, and it did not abuse 

its discretion when it denied claimant PTD compensation.
No. 21AP-563 16

{¶ 39} Accordingly, it is the magistrate's recommendation that this court should 

deny claimant's request for writ of mandamus. 

/S/ MAGISTRATE 

 THOMAS W. SCHOLL III

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).