[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Boyd v. Scotts Miracle-Gro Co., Slip Opinion No. 2016-Ohio-1508.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-1508

THE STATE EX REL. BOYD, APPELLANT, v. SCOTTS MIRACLE-GRO COMPANY 

ET AL., APPELLEES. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Boyd v. Scotts Miracle-Gro Co., Slip Opinion 

No. 2016-Ohio-1508.] 

Workers’ compensation—Permanent total disability—Industrial Commission did 

not abuse discretion in relying on examining physician’s report as evidence 

supporting order denying permanent total disability or in rejecting 

vocational consultant’s opinion in favor of Commission’s own analysis of 

vocational factors—Court of appeals’ judgment affirmed. 

(No. 2015-1023—Submitted January 26, 2016—Decided April 13, 2016.) 

APPEAL from the Court of Appeals for Franklin County, No. 14AP-413, 

2015-Ohio-2352. 

_______________________

 
SUPREME COURT OF OHIO

2

Per Curiam.

{¶ 1} Relator-appellant, Robert Boyd, appeals the judgment of the Tenth 

District Court of Appeals denying his complaint for a writ of mandamus that would 

require the Industrial Commission to award him permanent-total-disability 

compensation. 

{¶ 2} We find that the commission’s order was supported by evidence in 

the record. Therefore, the commission did not abuse its discretion when it denied 

Boyd’s request, and we affirm the judgment of the court of appeals. 

{¶ 3} Boyd retired from the Scotts Miracle-Gro Company (“Scotts”) in 

1983. He filed a claim for workers’ compensation benefits that was allowed in 

2005 for asbestosis in both lungs. In 2013, Boyd applied for permanent-totaldisability benefits, and he submitted a report from Marissa Mertz, M.D., in support 

of his application. Dr. Mertz had conducted an independent medical evaluation of 

Boyd for purposes of determining permanent and total disability. She was not his 

treating physician. 

{¶ 4} Robert F. Shadel, M.D., reviewed the claim file on behalf of Scotts. 

Herbert A. Grodner, M.D., a board-certified pulmonologist, examined Boyd on 

behalf of the commission. He concluded that Boyd had a mild restrictive 

impairment from the asbestosis that would not prevent Boyd from performing light 

work. 

{¶ 5} Following a hearing, a staff hearing officer at the commission denied 

Boyd’s application based on the medical reports of Dr. Shadel and Dr. Grodner and 

the hearing officer’s analysis of Boyd’s vocational disability factors. 

{¶ 6} Boyd filed a complaint seeking a writ of mandamus that would require 

the commission to vacate its decision. The court of appeals denied the writ. 

{¶ 7} This matter is before this court on Boyd’s appeal as of right. 

{¶ 8} Permanent total disability is the “inability to perform sustained 

remunerative employment due to the allowed conditions in the claim.” Ohio 
January Term, 2016 

3

Adm.Code 4121-3-34(B)(1); see also State ex rel. Guthrie v. Indus. Comm., 133 

Ohio St.3d 244, 2012-Ohio-4637, 977 N.E.2d 643, ¶ 8. Mandamus is the 

appropriate means to challenge the commission’s determination of a claimant’s 

extent of disability. State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 

278, 737 N.E.2d 519 (2000). 

{¶ 9} The party challenging the decision must demonstrate that the 

commission abused its discretion by entering an order not supported by any 

evidence in the record. State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 

20, 508 N.E.2d 936 (1987). This court’s role in reviewing mandamus actions 

challenging the commission’s decision is limited to determining whether there is 

some evidence in the record to support the commission’s stated basis for its 

decision. Id. 

{¶ 10} Boyd maintains that the commission abused its discretion when it 

relied on the report of Dr. Grodner. According to Boyd, Dr. Grodner was not 

qualified to give an opinion because he did not take X-rays of Boyd and he was not 

certified as a “B reader” to interpret the X-rays, a requirement for asbestosis claims 

by the commission’s Resolution R03-1-02. Boyd also contends that even if Dr. 

Grodner’s report is competent evidence, the commission abused its discretion when 

it did not rely on the vocational evidence in the record, including a report from 

consultant Molly Williams, which supported a finding of permanent total disability. 

{¶ 11} Boyd’s arguments fail because (1) Resolution R03-1-02 does not 

apply here, (2) Dr. Grodner’s report was evidence that supported the commission’s 

decision, and (3) the commission performed its own analysis of the vocational 

factors and was not required to accept Williams’s findings. 

{¶ 12} Dr. Grodner, a board-certified physician in pulmonology and 

internal medicine, conducted an independent medical examination of Boyd to 

determine the extent of permanent total disability. In his report, Dr. Grodner stated 

that he had reviewed Boyd’s medical records, including CT scans and X-rays, and 
SUPREME COURT OF OHIO

4

had conducted a physical examination and pulmonary-function studies. He 

concluded that Boyd was only minimally impaired as a result of his asbestosis. 

{¶ 13} Boyd takes issue with the fact that Dr. Grodner did not take X-rays 

and is not a certified “B reader” who could provide the written interpretation 

required by Resolution R03-1-02 for a specialist to give an opinion on disability 

related to asbestos. Boyd’s argument misinterprets the resolution. 

{¶ 14} Resolution R03-1-02 relates to the medical evidence necessary to 

support a claim for an asbestos-related condition. It requires the injured worker to 

initially produce medical evidence when an asbestos-related claim is being made 

and prior to adjudication of a claim if and when it is contested. Resolution R03-1-

02 states that 

it is the policy of the Commission that, at a minimum, the following 

evidence is necessary to be submitted by the injured worker prior to 

the referral of the claim to the Administrator for an examination by 

a qualified medical specialist pursuant to the provisions of Section 

4123.68 of the Ohio Revised Code concerning claims for asbestosis, 

* * *, and at a minimum, the following evidence is also necessary to 

be submitted by an injured worker prior to the adjudication of a 

contested claim filed for any asbestos-related occupational disease, 

other than mesothelioma: 

 A written interpretation of x-rays by a certified “B reader.” 

 Pulmonary functions studies and interpretation by a licensed 

physician. 

 An opinion of causal relationship by a licensed physician. 

(Emphasis added.) 
January Term, 2016 

5

{¶ 15} The requirements of Resolution R03-1-02 apply to the initial 

diagnosis and claim allowance of asbestosis. Anders v. Powertrain Div., Gen. 

Motors Corp., 157 Ohio App.3d 815, 2004-Ohio-2469, 813 N.E.2d 923, ¶ 25 (3d 

Dist.). Boyd’s claim for asbestosis was already allowed and is not being contested; 

thus, Dr. Grodner was not performing the mandatory examination as a qualified 

medical specialist to diagnose an occupational disease identified in R.C. 4123.68. 

Moreover, Resolution R03-1-02 requires the injured worker to submit the necessary 

medical evidence. For these reasons, Resolution R03-1-02 does not apply to the 

report of Dr. Grodner. Consequently, Boyd fails to demonstrate that the 

commission abused its discretion when it relied on Dr. Grodner’s report as evidence 

supporting its order denying permanent total disability. 

{¶ 16} Boyd also maintains that the hearing officer was required to rely on 

the vocational evidence in the record, such as his advanced age of 90 and the fact 

that he no longer drives. Boyd submitted a report from the vocational consultant, 

Williams, who opined that, based on the disability factors, in addition to the allowed 

medical condition, “it is obvious that the claimant is permanently and totally 

disabled.” 

{¶ 17} This court has held that the commission is the exclusive evaluator of 

disability and is not required to accept vocational evidence, even if uncontroverted. 

State ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266, 270, 680 N.E.2d 1233 

(1997). The commission, as the expert on vocational evidence, had the discretion 

to reject Williams’s report in favor of its own analysis of vocational factors. See 

id. at 271. In doing so, the commission acknowledged that Boyd’s age was a 

negative factor but contrasted it with positive factors such as his high school 

education and lengthy work history, including a supervisory position, until 2008. 

A claimant’s advanced age need not be an insurmountable barrier to reemployment. 

State ex rel. Ehlinger v. Indus. Comm., 76 Ohio St.3d 400, 402, 667 N.E.2d 1210 
SUPREME COURT OF OHIO

6

(1996); State ex rel. Moss v. Indus. Comm., 75 Ohio St.3d 414, 417, 662 N.E.2d 

364 (1996). 

{¶ 18} The commission also noted that Boyd expressed concerns about his 

vision but that he was able to pass the vision test to obtain his driver’s license. 

Thus, the hearing officer concluded that Boyd has the experience and skills, along 

with a driver’s license, to return to his prior employment as a runner for a car 

dealership. 

{¶ 19} The commission’s order was based on evidence in the record. Boyd 

failed to demonstrate that the commission abused its discretion, and his complaint 

in mandamus fails. We affirm the judgment of the court of appeals. 

Judgment affirmed. 

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, and O’NEILL, JJ., 

concur. 

PFEIFER, J., concurs in judgment only. 

LANZINGER, J., dissents. 

__________________ 

Michael J. Muldoon, for appellant. 

Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant 

Attorney General, for appellee Industrial Commission. 

 Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, for appellee 

the Scotts Miracle-Gro Company. 

______________________