[Cite as State ex rel. Montevideo v. Indus. Comm., 2015-Ohio-4867.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Joseph Montevideo, : 

 

 Relator, : 

 

v. : No. 15AP-43 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

National Gypsum Services Company, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on November 24, 2015 

 

Heller, Maas, Moro & Magill Co., L.P.A., and Robert J. 

Foley, for relator. 

Michael DeWine, Attorney General, and Lisa R. Miller, for 

respondent Industrial Commission of Ohio. 

Kastner, Westman, & Wilkins LLC, and Mark E. Snyder, for 

respondent National Gypsum Company. 

 

IN MANDAMUS 

BRUNNER, J. 

{¶ 1} Relator, Joseph Montevideo, has filed this original action requesting the 

court to issue a writ of mandamus directing respondent Industrial Commission of Ohio 

("commission") to vacate its June 5, 2014 order in which it exercised continuing 

jurisdiction to vacate the January 23, 2014 order of its staff hearing officer ("SHO"). The 

SHO had decided to award relator permanent total disability ("PTD") compensation, and 

relator asks this court to direct the commission to order PTD compensation as did the 

SHO. 
No. 15AP-43 2 

{¶ 2} The matter was referred to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 

13(M) of the Tenth District Court of Appeals. The magistrate's decision included findings 

of fact and conclusions of law and is appended hereto. 

{¶ 3} Recommending that we deny a writ of mandamus, the magistrate concluded 

that the commission did not abuse its discretion in exercising its continuing jurisdiction, 

as it decided that the SHO had made a clear mistake of law in failing to address whether 

relator had voluntarily retired in 1995. Due to the latency period of the occupational 

disease, which was diagnosed long after retirement, the commission found that PTD 

compensation was not precluded by retirement, but in its de novo consideration of 

relator's PTD application the commission also accepted the conclusions of Ira J. Ungar, 

M.D. and Paul B. Bartos, M.D., who had examined relator at the requests of his employer, 

respondent National Gypsum Services Company, and the commission, respectively, that 

relator yet was able to perform sedentary work notwithstanding the industrial injury. The 

magistrate held that the commission did not abuse its discretion in its consideration and 

analysis of non-medical disability factors: it did not have to accept the conclusions of 

relator's proffered vocational expert, and it properly considered and evaluated relator's 

work history. 

{¶ 4} No objections to the magistrate's decision have been filed. We find no error 

of law or other defect in the decision. Therefore, we adopt the decision as our own, 

including the findings of fact and conclusions of law contained therein. 

{¶ 5} In accordance with the magistrate's decision, we deny the requested writ of 

mandamus. 

Writ of mandamus denied. 

KLATT and LUPER SCHUSTER, JJ., concur. 

 

 
No. 15AP-43 3 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Joseph Montevideo, : 

 

 Relator, : 

 

v. : No. 15AP-43 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

National Gypsum Services Company, 

 : 

 Respondents. 

 : 

 

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

Rendered on September 10, 2015

 

Heller, Maas, Moro & Magill Co., L.P.A., and Robert J. 

Foley, for relator. 

Michael DeWine, Attorney General, and Lisa R. Miller, for 

respondent Industrial Commission of Ohio. 

Kastner, Westman, & Wilkins LLC, and Mark E. Snyder, for 

respondent National Gypsum Company. 

 

IN MANDAMUS 

{¶ 6} In this original action, relator, Joseph Montevideo, requests a writ of 

mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to 

vacate its June 5, 2014 order that exercised continuing jurisdiction to vacate the 

January 23, 2014 order of its staff hearing officer ("SHO") that had awarded permanent 

total disability ("PTD") compensation, and to enter an order reinstating the SHO's order 

of January 23, 2014. 
No. 15AP-43 4 

Findings of Fact: 

{¶ 7} 1. On May 25, 2012, relator filed an application for workers' compensation 

benefits. The application alleged that relator had acquired an occupational disease arising 

out of and in the course of his employment with respondent, National Gypsum Company 

("National Gypsum" or "employer"), a state-fund employer.1

{¶ 8} 2. On December 17, 2012, the Ohio Bureau of Workers' Compensation 

("bureau") mailed an order allowing the industrial claim (No. 11-869843) for "asbestosis; 

pleurisy without mention of effusion or current tuberculosis bilateral." The bureau and 

the commission officially recognize March 23, 2011 as the date of injury or diagnosis. The 

bureau order was not administratively appealed. 

{¶ 9} 3. Relator's date of birth is January 6, 1933. 

{¶ 10} 4. In 1995, at the age of 62 years, relator retired from his employment as a 

machine operator at National Gypsum where he had worked for some 43 years. 

{¶ 11} 5. Relator has not returned to any employment following his 1995 

retirement. 

{¶ 12} 6. On April 10, 2013, at his own request, relator was examined by 

Waleed N. Mansour, M.D. In his five-page narrative report, Dr. Mansour opines: 

Based on a reasonable degree of medical certainty, the 

known mechanism of injury, review of the available medical 

documentation, interview with the [Injured Worker] and 

today's examination, I am of the medical opinion that the 

impairments relative to the allowed conditions in the claims 

reviewed rise to the necessary criteria to meet definitions by 

Ohio Rule for Permanent and Totally Disability from any and 

all gainful employment. 

{¶ 13} 7. On June 4, 2013, relator filed an application for PTD compensation. In 

support, relator submitted the report of Dr. Mansour. 

{¶ 14} 8. On his application, under the "Education" section, relator indicated that 

the fifth grade was the highest grade of school he had completed. Completion of his 

education occurred in Italy in 1943. Relator never obtained a certificate for passing the 

 

1 The complaint alleges that the employer is National Gypsum Services Company. However, National 

Gypsum Company answered the complaint. 
No. 15AP-43 5 

General Education Development test ("GED"). Thereafter, relator immigrated to the 

United States. 

{¶ 15} 9. On August 14, 2013, at the employer's request, relator was examined by 

Ira J. Ungar, M.D. In his four-page narrative report dated August 17, 2013, Dr. Ungar 

opined: 

Although it is quite clear that Mr. Montevideo could not 

return to work in any form of substantive manual labor, he is 

clearly capable of job duties in the sedentary or very light job 

duty categories. This is fully consistent with his objective 

evaluation on this date and fully consistent with an 

individual who is responsible for all their activities of daily 

living. 

{¶ 16} 10. On September 19, 2013, at the commission's request, relator was 

examined by Paul B. Bartos, M.D. In his five-page narrative report dated October 2, 2013, 

Dr. Bartos opined: 

Based upon the history and physical examination, review of 

the medical documentation provided, review of mechanism 

of injury, and treatment received and response to treatment, 

as well as the effect of the claimant's symptoms on his 

activities of daily living, it is my professional opinion that the 

claimant is capable of light duty work. 

He has stable asbestosis. This has not changed significantly 

over the past number of years. He is currently receiving no 

treatment for this condition. He is on no prescribed 

medications nor is he on supplemental oxygen. 

He is independent with his activities of daily living and is 

able to drive short distances. He is capable of lifting up to 20 

pounds on an occasional basis and up to 10 pounds on a 

frequent basis. This places him in the category of light duty 

capacity. 

{¶ 17} 11. On November 4, 2013, at his own request, relator was interviewed and 

tested by vocational expert Shannon C. Valentine. In her four-page narrative report, 

Valentine opines: 

In the opinion of this Vocational Specialist, Mr. Montevideo 

is displaying insufficient worker traits to qualify for gainful 

employment. He presents with chronic respiratory 
No. 15AP-43 6 

limitations. The combined effects of these limitations would 

impact negatively on his capacity to engage in sustained 

competitive employment. He also presents with neither 

marketable nor transferable skills given his past relevant 

work history and current physical limitations. 

Mr. Montevideo does not appear capable of engaging in 

activities of a light duty nature, as indicated by Paul Bartos, 

M.D. Light duty work requires working at a production rate 

pace entailing the constant pushing/pulling of materials even 

though the weight of those materials is negligible. His 

general performance on dexterity testing would suggest 

decreased productivity and therefore would not be 

considered competitive in the local labor market. Light duty 

work would require an individual to be up on his/her feet for 

up to 68% of the workday. Mr. Montevideo does not appear 

capable of meeting this physical demand level. At best, Mr. 

Montevideo appears limited to sedentary activities. 

In addition to this, Mr. Montevideo is of advanced age (80) 

for work and therefore he is not, in my professional opinion, 

a candidate for vocational rehabilitation services. 

When considering all information presented, it is 

the opinion of this Vocational Specialist that Mr. 

Montevideo would not be capable of engaging in any 

sustained, remunerative employment. 

(Emphasis sic.) 

{¶ 18} 12. Following a January 23, 2014 hearing, an SHO issued an order 

awarding PTD compensation starting April 10, 2013 based exclusively upon the report of 

Dr. Mansour. The SHO held that it was unnecessary to discuss or analyze the nonmedical disability factors. The SHO's order was mailed on January 28, 2014. 

{¶ 19} 13. On February 11, 2014, the employer moved for reconsideration of the 

SHO's order of January 23, 2014. In its motion, the employer alleged that the SHO's 

order contains "clear mistakes of fact and law." 

{¶ 20} 14. The employer alleged that the SHO erred in failing to address whether 

relator had voluntarily retired in 1995 when he left his employment at National Gypsum. 
No. 15AP-43 7 

{¶ 21} Also, the employer alleged that the SHO erred in relying upon the report of 

Dr. Mansour. The employer argued that the report was not some evidence upon which 

the commission could rely. 

{¶ 22} 15. On May 15, 2014, the three-member commission mailed an 

interlocutory order, stating: 

It is the finding of the Industrial Commission the Employer 

has presented evidence of sufficient probative value to 

warrant adjudication of the Request for Reconsideration 

regarding the alleged presence of a mistake of fact and a 

mistake of law of such character that remedial action would 

clearly follow. 

Specifically, it is alleged the Staff Hearing Officer made clear 

mistakes of law and fact when he granted the IC-2 

Application for Compensation for Permanent Total 

Disability, as the Staff Hearing Officer failed to address 

whether the Injured Worker's retirement in 1995 was 

voluntary or involuntary, and the Staff Hearing Officer relied 

upon the 04/10/2013 report of Waleed Mansour, M.D., 

which is not some evidence to support an award of 

permanent total disability compensation. 

{¶ 23} 16. Following a June 5, 2014 hearing, the commission issued an order 

granting the employer's motion for reconsideration and vacating the SHO's order of 

January 23, 2014. The commission exercised its continuing jurisdiction over the SHO's 

order of January 23, 2014 on grounds that the order contains a clear mistake of law by 

failing to address whether relator voluntarily retired in 1995. 

{¶ 24} Even though the commission found a clear mistake of law on grounds that 

the SHO failed to address voluntary retirement, the commission further held that the 

retirement does not preclude PTD compensation because of the long latency period of the 

occupational disease which was diagnosed long after the retirement. The commission 

relied upon State ex rel. Liposchak v. Indus. Comm., 73 Ohio St.3d 194 (1995) and State 

ex rel. Vansuch v. Indus. Comm., 83 Ohio St.3d 558 (1998) — two cases in which the 

retirement of the injured worker was held to not preclude PTD compensation because of 

the long latency period of the occupational disease at issue. 
No. 15AP-43 8 

{¶ 25} Thus, while the commission found that the SHO's order of January 23, 2014 

contains a clear mistake of law for the failure to address the retirement issue, the 

commission ultimately determined that the retirement issue did not preclude the PTD 

compensation that the SHO's order had awarded. However, because the commission 

vacated the SHO's order upon the exercise of continuing jurisdiction, the commission 

determined de novo the merits of the PTD application. 

{¶ 26} In determining the merits of the PTD application de novo, the commission 

did not rely upon the report of Dr. Mansour as the SHO had done. Rather, the 

commission relied upon the October 2, 2013 report of Dr. Bartos and the August 17, 2013 

report of Dr. Unger in determining residual functional capacity. That is, based upon the 

two medical reports, the commission found that the industrial injury permits sedentary 

work. Given that the commission determined that relator is medically able to perform 

sedentary work, the commission, unlike the SHO, found it necessary to analyze the nonmedical disability factors. The commission explained: 

The Injured Worker is currently 81 years of age, which is 

found to be a negative vocational factor. However, a mere 

increase in age, rather than the allowed disability, may not 

be the sole causative factor to support an award. State ex rel. 

Speelman v. Indus. Comm., 73 Ohio App.3d 757, 590 N.E. 2d 

192 (1992). 

The Injured Worker attended school through the fifth grade 

in Italy, then immigrated to the United States. The Injured 

Worker is able to read and perform basic math, but does not 

write well per his IC-2 Application for Compensation for 

Permanent Total Disability. The Commission finds this 

factor is neutral as the Injured Worker has no educational 

problems and is able to read and perform basic math. 

Furthermore, the Injured Worker's education was not a 

barrier to obtaining and sustaining employment for over 

forty years. 

The Injured Worker worked approximately 43 years for the 

Employer as a machine operator, and worked approximately 

11 years as a tailor for a department store, per the Injured 

Worker's IC-2 Application. The Injured Worker worked for 

two different employers for long periods of time. The 

Commission finds this factor is positive as it demonstrates a 

loyal, stable, and dependable employee. The Commission 
No. 15AP-43 9 

finds the Injured Worker's former position as a tailor 

provided the Injured Worker with transferrable skills, which 

can be utilitized [sic] in a sedentary position. The Injured 

Worker could perform tailor work activities as long as he was 

able to sit most of the time and walking and standing were 

only required occasionally. 

The Commission finds the Injured Worker has not 

demonstrated efforts to return to work or to improve his 

reemployment potential. Per State ex rel. Wilson v. Indus. 

Comm., 80 Ohio St.3d 250, 685 N.E.2d 774 (1997), it is not 

unreasonable to expect an injured [w]orker to participate in 

return-to-work efforts to the best of his or her abilities, or to 

take the initiative to improve reemployment potential. See 

State ex re[l]. Wilson v. Indus. Comm., 80 Ohio St.3d 250, 

253 685 N.E.2d 774 (1997). While extenuating circumstances 

can excuse an injured worker's participation in re-education 

or retraining efforts, injured workers should no longer 

assume that a participatory role, or lack thereof, will go 

unscrutinized. Id. 

Based upon Drs. Ungar and Bartos' reports, the Injured 

Worker's transferable skills as a tailor, and the Injured 

Worker's current physical abilities, the Commission does not 

find the Injured Worker is precluded from performing 

sustained remunerative employment. 

{¶ 27} 17. On January 20, 2015, relator, Joseph Montevideo, filed this mandamus 

action. 

Conclusions of Law: 

{¶ 28} Two issues are presented: (1) did the commission abuse its discretion in the 

exercise of its continuing jurisdiction by finding that the SHO's order of January 23, 2014 

contained a clear mistake of law by failing to address the retirement issue, and (2) 

assuming that the commission did not abuse its discretion in the exercise of its continuing 

jurisdiction, did the commission abuse its discretion in its consideration and analysis of 

the non-medical disability factors. 

{¶ 29} The magistrate finds: (1) the commission did not abuse its discretion in 

exercising its continuing jurisdiction, thus reaching the merits of the PTD application, and 

(2) the commission did not abuse its discretion in its consideration and analysis of the 

non-medical disability factors. 
No. 15AP-43 10 

{¶ 30} Accordingly, it is the magistrate's decision that this court deny relator's 

request for a writ of mandamus, as more fully explained below. 

First Issue 

{¶ 31} Turning to the first issue, a voluntary abandonment from the workforce 

prior to asserting permanent total disability precludes the payment of compensation for 

that disability. State ex rel. Cinergy Corp./Duke Energy v. Heber, 130 Ohio St.3d 194, 

2011-Ohio-5027 citing State ex rel. Baker Material Handling Corp. v. Indus. Comm., 69 

Ohio St.3d 202 (1994), paragraph two of the syllabus. The character of a claimant's 

retirement is therefore critical to a PTD analysis. Id. When the commission fails to 

address the voluntariness of a retirement when that issue is put before it in a PTD 

proceeding, the commission has abused its discretion and mandamus relief will be 

granted. Id. 

{¶ 32} Here, relator does not dispute that the retirement issue was raised by the 

employer at the January 23, 2014 hearing before the SHO despite the fact that the SHO's 

order fails to address the retirement issue. 

{¶ 33} According to relator, the SHO was not required to address the retirement 

issue when the retirement does not preclude PTD compensation. According to relator, 

"[t]he Commission chose to exercise continuing jurisdiction solely because the Staff 

Hearing Officer did not take on the inconsequential task of addressing the issue in his 

order." (Relator's brief, 13-14.) 

{¶ 34} Relator's argument is premised upon a hindsight analysis of the retirement 

issue. In effect, relator is arguing that the SHO can choose to privately address the issue 

and, if PTD is not precluded, fail to place the analysis in the order for court review. 

Relator cites to no authority to support the proposition. It is well-settled law that the 

commission abuses its discretion when it fails to address in its order a key issue that was 

put before it in determining a request for compensation. State ex rel. Gen. Am. Transp. 

Corp. v. Indus. Comm., 49 Ohio St.3d 91 (1990); State ex rel. B.O.C. Group, Gen. Motors 

Corp. v. Indus. Comm., 58 Ohio St.3d 199 (1991); State ex rel. Peabody Coal Co. v. Indus. 

Comm., 66 Ohio St.3d 639 (1993). 

{¶ 35} Moreover, in a case similar to the instant action, this court recently rejected 

an argument similar to the one put forth by relator here. In State ex rel. Sheppard v. 
No. 15AP-43 11 

Indus. Comm., 10th Dist. No. 11AP-553, 2012-Ohio-4301, the claimant, Robert L. 

Sheppard, applied for PTD compensation. Following an order of the SHO awarding PTD 

compensation, the employer moved for reconsideration. The commission granted 

reconsideration based upon its continuing jurisdiction and ultimately denied the PTD 

application. This court stated: 

Although we agree with the general principle that the 

commission is required only to cite evidence in support of 

the order, the commission's concern here was that the SHO 

failed to give any indication whatsoever that he even 

considered the employer's "critical" argument regarding the 

intervening injury. This court has before found that an SHO's 

failure to address an issue raised by an employer constitutes 

a mistake of law sufficient for the commission to invoke 

continuing jurisdiction. See State ex rel. Mackey v. Ohio 

Dept. of Edn., 10th Dist. No. 09AP-966, 2010-Ohio-3522, 

¶ 8, citing State ex rel. Hayes v. Indus. Comm., 10th Dist. 

No. 01AP-1087, 2002-Ohio-3675 (concluding it was an abuse 

of discretion for an SHO to fail to address an issue when the 

employer had presented the issue; the commission did not 

abuse its discretion by invoking its continuing jurisdiction to 

address the issue). Furthermore, we cannot simply assume 

that the SHO rejected the intervening-injury argument based 

upon his failure to address it. See id. at ¶ 7-8 (rejecting 

claimant's contention that, by not addressing the employer's 

argument, the SHO "obviously" rejected the argument). 

Therefore, in this case, we find the commission properly 

exercised continuing jurisdiction on the basis that the SHO's 

failure to address the employer's critical argument regarding 

the alleged intervening injury constituted a mistake of law. 

 

Id. at ¶ 4. 

{¶ 36} Accordingly, the magistrate finds that the commission did not abuse its 

discretion in exercising its continuing jurisdiction. 

Second Issue

{¶ 37} In its June 5, 2014 order, the commission stated reliance upon the 

October 2, 2013 report of Dr. Bartos and the August 17, 2013 report of Dr. Ungar in 

determining residual functional capacity. Ohio Adm.Code 4121-3-34(B)(4). Based upon 

the two reports, the commission concluded that relator is medically able to perform 

sedentary work. 
No. 15AP-43 12 

{¶ 38} Here, relator does not challenge the medical reports of Drs. Bartos and 

Ungar nor the commission's conclusion that relator is medically able to perform sedentary 

work. 

{¶ 39} However, relator does challenge the commission's analysis of the nonmedical disability factors. 

{¶ 40} To begin, relator seems to suggest that the commission was required to rely 

upon the Valentine vocational report because there was no other vocational report 

submitted. This is incorrect. The commission may credit offered vocational evidence, but 

expert opinion is not critical or even necessary because the commission is the expert on 

the issue. State ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266, 271 (1997). 

{¶ 41} Relator also seems to suggest that the commission abused its discretion in 

analyzing relator's work history. The commission's order notes that relator worked 

approximately 43 years for the employer, National Gypsum, as a machine operator. The 

commission also found that relator worked for 11 years as a tailor in a department store. 

The commission found this factor to be a "positive" as it demonstrates a loyal, stable, and 

dependable employee. 

{¶ 42} The commission's analysis regarding work history is supported by State ex 

rel. Ewart v. Indus. Comm., 76 Ohio St.3d 139, 142-43 (1996), wherein the court states: 

The freedom to independently evaluate nonmedical factors is 

important because nonmedical factors are often subject to 

different interpretation. 

* * * 

The same can be said in this case with regard to claimant's 

work history. Claimant worked for Refiners Transport and 

Terminal as a trucker for twenty-two years. Claimant's long 

tenure can be viewed negatively because it prevented the 

acquisition of a broader range of skills that more varied 

employment might have provided. It also, however, suggests 

a stable, loyal and dependable employee worth making an 

investment in. This is an asset and is an interpretation as 

valid as the first. 

Id. at 141-42. 
No. 15AP-43 13 

{¶ 43} Thus, based upon Ewart, it was well within the commission's fact finding 

discretion to view relator's work history as "positive" because, as the commission found, it 

demonstrated a "loyal, stable, and dependable employee." 

{¶ 44} It can be further noted that the commission found that relator's 

employment as a tailor provided relator with transferrable skills. Ohio Adm.Code 4121-3-

34-(B)(3)(c) provides: 

(iv) "Transferability of skills" are skills that can be used in 

other work activities. Transferability will depend upon the 

similarity of occupational work activities that have been 

performed by the injured worker. Skills which an individual 

has obtained through working at past relevant work may 

qualify individuals for some other type of employment. 

(v) "Previous work experience" is to include the injured 

worker's usual occupation, other past occupations, and the 

skills and abilities acquired through past employment which 

demonstrate the type of work the injured worker may be able 

to perform. Evidence may show that an injured worker has 

the training or past work experience which enables the 

injured worker to engage in sustained remunerative 

employment in another occupation. The relevance and 

transferability of previous work skills are to be addressed by 

the adjudicator. 

{¶ 45} Thus, the commission reasoned that relator can return to the work that he 

has previously demonstrated to have the skills to perform. Given that the commission 

found that relator is medically able to perform sedentary work, it was logical to conclude 

that relator can return to "tailor work." 

{¶ 46} Relator further suggests that the commission abused its discretion in 

determining that his educational status is a "neutral" factor. The commission explained 

that relator is able to read and perform basic math and, furthermore, his education had 

not been a barrier to obtaining work for over 40 years. Obviously, the commission was 

not persuaded that relator's fifth grade education was a barrier to re-employment. That 

is, relator's educational status permitted him to work for some 43 years. Clearly, the 

commission's finding that relator's educational status was a "neutral" factor was well 

within the commission's discretion. 
No. 15AP-43 14 

{¶ 47} Thus, for all the above reasons, the magistrate finds that the commission 

did not abuse its discretion in finding relator able to perform sustained remunerative 

employment. 

{¶ 48} Accordingly, it is the magistrate's decision that this court deny relator's 

request for a writ of mandamus. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

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). 

 
No. 15AP-43 15