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

ex rel. Manpower of Dayton, Inc. v. Indus. Comm., Slip Opinion No. 2016-Ohio-7741.] 

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-7741 

THE STATE EX REL. MANPOWER OF DAYTON, INC., APPELLANT, v. INDUSTRIAL 

COMMISSION OF OHIO ET AL., APPELLEES. 

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

may be cited as State ex rel. Manpower of Dayton, Inc. v. Indus. Comm., 

Slip Opinion No. 2016-Ohio-7741.] 

Workers’ compensation—Permanent total disability—Commission’s decision 

supported by some evidence in record, specifically states evidence relied 

upon, and explains reasoning—Court of appeals’ judgment denying writ of 

mandamus affirmed. 

(No. 2015-1347—Submitted August 30, 2016—Decided November 16, 2016.) 

APPEAL from the Court of Appeals for Franklin County, 

No. 14AP-376, 2015-Ohio-2650. 

_______________________

Per Curiam.

{¶ 1} Appellant, Manpower of Dayton, Inc. (“Manpower”), appeals the 

judgment of the Tenth District Court of Appeals denying its request for a writ of 
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mandamus that would compel appellee Industrial Commission to vacate its award 

of permanent-total-disability compensation to appellee Inge Fox. 

{¶ 2} The court of appeals concluded that the reports of Kenneth J. Manges, 

Ph.D., James T. Lutz, M.D., and Thomas W. Heitkemper, Ph.D., constituted some 

evidence supporting the commission’s order awarding compensation and that the 

order complied with the requirements of State ex rel. Noll v. Indus. Comm., 57 Ohio 

St.3d 203, 567 N.E.2d 245 (1991), syllabus, to “specifically state what evidence 

has been relied upon, and briefly explain the reasoning for [the commission’s] 

decision.” 

{¶ 3} For the reasons that follow, we affirm the judgment of the court of 

appeals. 

{¶ 4} In 2006, Fox injured her left arm and hand in the course and scope of 

her employment with Manpower. Her workers’ compensation claim was allowed 

for various medical and psychological conditions. In 2013, Fox applied for 

permanent-total-disability compensation. In support of her application, she 

submitted two reports from Dr. Manges, a psychologist and a vocational expert, 

both dated July 10, 2012. 

{¶ 5} Drs. Lutz and Heitkemper examined Fox on behalf of the 

commission. Both determined that Fox had reached maximum medical 

improvement and was incapable of engaging in “sustained remunerative 

employment.” 

{¶ 6} The commission granted Fox’s application based on the reports of 

Drs. Manges, Lutz, and Heitkemper. The order stated that because Fox’s inability 

to work was based solely on the medical impairment caused by her allowed 

conditions, it was not necessary to discuss her nonmedical disability factors, such 

as age, education, skills, and work record, see State ex rel. Stephenson v. Indus. 

Comm., 31 Ohio St.3d 167, 172-173, 509 N.E.2d 946 (1987). 
January Term, 2016 

3

{¶ 7} Manpower filed a complaint in mandamus in the Tenth District Court 

of Appeals, claiming that the commission abused its discretion by entering an order 

not supported by the evidence in the record. The court of appeals concluded that 

the commission did not abuse its discretion and denied Manpower’s request for a 

writ. 

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

{¶ 9} To be entitled to the extraordinary remedy of mandamus, Manpower 

must establish a clear legal right to the relief requested, a clear legal duty on the 

part of the commission to provide the relief, and the lack of an adequate remedy in 

the ordinary course of the law. State ex rel. Gen. Motors Corp. v. Indus. Comm., 

117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9. 

{¶ 10} Manpower argues that the court of appeals erred in its analysis of the 

sufficiency and reliability of the evidence that the commission relied upon. In 

particular, Manpower contends that the impairment report of Dr. Manges focused 

on nonmedical factors to support his opinion that Fox was disabled. Manpower 

also argues that Dr. Lutz’s report was equivocal regarding Fox’s physical 

capabilities and that Dr. Heitkemper’s report did not constitute evidence that 

supported the commission’s decision. Finally, Manpower contends that the 

commission’s order failed to specifically state the evidence relied upon and to 

briefly explain its reasoning, in violation of Noll, 57 Ohio St.3d 203, 567 N.E.2d 

245. 

{¶ 11} This court must determine whether there is some evidence in the 

record to support the commission’s decision. State ex rel. Avalon Precision Casting 

Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, 846 N.E.2d 1245, ¶ 9. 

Questions regarding the weight and credibility of the evidence are within the 

commission’s discretion. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165, 

169, 429 N.E.2d 433 (1981). It is not the role of a reviewing court to assess the 

credibility of the evidence. State ex rel. Consolidation Coal Co. v. Indus. Comm., 
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78 Ohio St.3d 176, 177, 677 N.E.2d 338 (1997). So long as the commission’s order 

is supported by some evidence, there is no abuse of discretion and a court must 

uphold the decision. State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373, 

376, 658 N.E.2d 1055 (1996). 

{¶ 12} We agree with the court of appeals that the evidence in the record 

supported the commission’s decision to award permanent-total-disability 

compensation based solely on Fox’s allowed conditions. The court of appeals 

correctly determined that Dr. Manges rendered an opinion, without consideration 

of nonmedical factors, that Fox was totally disabled as a direct result of her 

impairments from her industrial injury based on her psychological conditions. See

2015-Ohio-2650, ¶ 52-53. 

{¶ 13} We also agree with the appellate court’s determination that Dr. 

Lutz’s description of Fox’s activities of daily living did not contradict his 

conclusion that she was unable to work. See id. at ¶ 67-71. Dr. Lutz acknowledged 

that Fox was capable of performing some light housecleaning, cooking, and 

laundry, but he also noted that she had undergone three surgical procedures and 

described constant pain with frequent episodes of severe flareups that rendered her 

functionless. 

{¶ 14} Manpower’s argument challenging the evidentiary value of Dr. 

Heitkemper’s report also lacks merit. Dr. Heitkemper’s use of the word “medical” 

when rendering his opinion within a reasonable degree of “medical/psychological 

probability” did not invalidate his opinion. Ohio Adm.Code 4121-3-34(C)(1) states 

that a psychologist may provide “medical” evidence in support of an application 

for permanent-total-disability compensation. 

{¶ 15} Finally, the commission’s order granting permanent-total-disability 

compensation specifically set forth the medical reports and evidence relied upon 

and explained the reasoning for the decision in compliance with Noll, 57 Ohio St.3d 
January Term, 2016 

5

203, 567 N.E.2d 245, at syllabus. Manpower failed to demonstrate that it was 

entitled to extraordinary relief in mandamus. 

{¶ 16} We affirm the judgment of the court of appeals. 

 Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur. 

_________________ 

Coolidge Wall Co., L.P.A., David C. Korte, Michelle D. Bach, and Joshua 

R. Lounsbury, for appellant. 

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

Attorney General, for appellee Industrial Commission. 

Hochman & Plunkett Co., L.P.A., and Gary D. Plunkett, for appellee Inge 

Fox. 

_________________