[Cite as State ex rel. Falgiani v. Indus. Comm., 2017-Ohio-719.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Dominic J. Falgiani, : 

 Relator, : 

v. : No. 16AP-361 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and Altronic Inc., 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on February 28, 2017 

 

On brief: Heller, Maas, Moro & Magill Co., LPA, Joseph A. 

Moro, and Patrick J. Moro, for relator. 

On brief: Michael DeWine, Attorney General, and Shaun P. 

Omen, for respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

ON OBJECTION TO THE MAGISTRATE'S DECISION 

DORRIAN, J. 

{¶ 1} In this original action, relator, Dominic J. Falgiani, requests 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 relator is entitled to 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. The magistrate recommends 

this court deny the request for a writ of mandamus. 

{¶ 3} Relator has filed the following objection to the magistrate's decision: 
No. 16AP-361 2 

The Magistrates reliance upon State ex rel. Wood [v. Indus. 

Comm., 78 Ohio St.3d 414 (1997)] in finding that Dr. GadePulido's [report] is not inconsistent is improper as that case 

inapplicable to the instant matter. 

(Sic passim.) 

{¶ 4} Relator argues the magistrate incorrectly found that the commission did not 

abuse its discretion when it denied his application for PTD compensation. Specifically, 

relator argues that Dr. Karen Gade-Pulido's report is internally inconsistent and, 

therefore, cannot constitute "some evidence" to support the denial of PTD compensation. 

Relator argues that Dr. Gade-Pulido's report must be considered together with the 

definition of "light work" pursuant to Ohio Adm.Code 4121-3-34(B)(2)(b). Relator argues 

the magistrate erred in applying State ex rel. Wood v. Indus. Comm., 78 Ohio St.3d 414 

(1997), because Wood is distinguishable from this case. In Wood, four doctors examined 

the claimant, listed the same restrictions, and found that he was physically capable of 

sedentary work; whereas in the case before us, only one doctor, Dr. Gade-Pulido, opined 

relator was capable of performing any type of work. 

{¶ 5} Relator concludes that according to the definition of light work set forth in 

Ohio Adm.Code 4121-3-34(B)(2)(b), relator would be: (1) unable to walk or stand to a 

significant degree, as documented by Dr. Dean DePerro, (2) unable to sit for most of the 

time as documented by Dr. DePerro and Shannon Valentine, and (3) unable to constantly 

push and/or pull materials as documented by Dr. Gade-Pullido, Dr. DePerro, and 

Valentine. 

{¶ 6} Because the commission did not rely on the reports of Dr. DePerro and 

Valentine in concluding that relator was capable of light work, we will not consider the 

same. Therefore, we will not address relator's first and second arguments, as well as his 

third argument to the extent it invokes Dr. DePerro's and Valentine's reports. 

Furthermore, we note that relator's specific objection is that the commission could not 

rely on Dr. Gade-Pulido's report because it was internally inconsistent. Therefore, we will 

only address relator's third argument to the extent it invokes Dr. Gade-Pulido's report and 

consider the proposition that it was internally inconsistent. This argument is essentially 

the same raised to and addressed by the magistrate. 

{¶ 7} The magistrate concluded: 

Contrary to relator's argument, nothing n the definition of 

light-duty work would require a worker to perform overhead 
No. 16AP-361 3 

activities. As such, to the extent he asserts that Dr. GadePulido's restriction that he avoid overhead use of his upper 

extremities precludes him from performing light-duty work, 

relator is incorrect. Further, nothing in the definition of lightduty work requires a worker to repetitively use their upper 

extremities. Exerting up to 20 pounds of force occasional, 

and/or up to 10 pounds of force frequently, does not 

necessarily require that those actions be performed 

repetitively. Also the fact that relator might not be able to 

perform a full range of light-duty work does not render Dr. 

Gade-Pulido's report inconsistent, nor does it invalidate the 

commission's conclusion that relator is capable of performing 

light-duty work. See State ex. rel Wood v. Indus. Comm., 78 

Ohio St.3d 414 (1997). 

(Appended Magistrate's Decision at ¶ 32.) 

{¶ 8} Ohio Adm.Code 4121-3-34(B)(2)(b) states: 

"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: (i) when it requires 

walking or standing to a significant degree; or (ii) when it 

requires sitting most of the time but entails pushing and/or 

pulling or arm or leg controls; and/or (iii) 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. 

(Emphasis added.) 

{¶ 9} Given the use of the term "and/or," as well as the Supreme Court of Ohio's 

direction in Wood, we agree with the magistrate that the fact that relator might not be 

able to perform a full range of light-duty work, i.e. the constant pushing and/or pulling of 

materials, does not render Dr. Gade-Pulido's report inconsistent nor does it invalidate the 

commission's conclusion that relator is capable of performing light-duty work. We are 

not persuaded by relator's argument that the factual distinctions between Wood and the 

case before us render Wood inapplicable here. Here, the commission found, based on Dr. 

Gade-Pulido's report, there were some light-duty jobs which relator could perform. 

Accordingly, there is some evidence supporting the commission's conclusion that relator 

could do light work. 
No. 16AP-361 4 

{¶ 10} On review of the magistrate's decision, an independent review of the record, 

and due consideration of relator's objection, we find the magistrate has properly 

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

relator's objection to the magistrate's decision and adopt the magistrate's decision as our 

own, including the findings of fact and conclusions of law contained therein. Accordingly, 

the requested writ of mandamus is hereby denied. 

Objection overruled; 

writ of mandamus denied. 

SADLER and LUPER SCHUSTER, JJ., concur. 

 

 
No. 16AP-361 5 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

State ex rel. Dominic J. Falgiani, : 

 Relator, : 

 

v. : No. 16AP-361 

 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

Altronic Inc., : 

 

 Respondents. : 

 

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

Rendered on October 25, 2016

 

Heller, Maas, Moro & Magill Co., L.P.A., Joseph A. Moro, 

and Patrick J. Moro, for relator. 

Michael DeWine, Attorney General, and Shawn P. Omen, for 

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 11} Relator, Dominic J. Falgiani, has filed this original action requesting 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: 

{¶ 12} 1. Relator has sustained two work-related injuries, the most significant 

occurring on August 6, 2008. Relator's workers' compensation claims have been allowed 
No. 16AP-361 6 

for the following conditions: "claim number 08-357743 has been allowed for: bilateral 

shoulder sprain; bilateral shoulder impingement; depressive disorder; muscle strain to 

the right groin. Claim number 03-312446 has been allowed for: lumbosacral sprain." 

{¶ 13} 2. Relator has not worked since the date of the second injury and 

underwent shoulder surgery in 2009. 

{¶ 14} 3. Relator filed an application for PTD compensation on November 2, 2015. 

According to his application, relator was 58 years of age, had graduated from high school, 

and was able to read, write, and perform basic math. Relator indicated that he began 

receiving social security retirement in the amount of $1,147 per month in February 2013. 

Relator's work experience included work in food service at a hospital, retail sales as an 

owner/operator of a wine shop, and as a shipper/production worker for the employer of 

record. 

{¶ 15} 4. A psychological evaluation was performed by Robert L. Byrnes, Ph.D. In 

his March 30, 2015 report, Dr. Byrnes opined that relator's psychological condition had 

reached maximum medical improvement ("MMI"), and that he had a moderate level of 

impairment in activities of daily living, social functioning, concentration, persistence and 

pace, as well as deterioration or decompensation in work-like settings. Dr. Byrnes opined 

that relator had a 30 percent whole person impairment, that his "depression, reduced 

motivation, social withdrawal, lack of confidence and poor stress tolerance all combine to 

make successful return to work highly improbable." 

{¶ 16} 5. Dean J. DePerro, D.O., examined relator for his allowed physical 

conditions. In his March 30, 2015 report, Dr. DePerro noted that relator had severe 

limitations of his ability to use his upper extremities and that he had difficulty remaining 

in a seated or standing position for more than 10 to 20 minutes at a time because of groin 

pain. Dr. DePerro noted his physical findings upon examination and opined that relator 

was permanently and totally disabled. 

{¶ 17} Dr. DePerro completed a physical capacities evaluation noting that relator 

could sit for one hour at a time and for three hours in an eight-hour day, but could neither 

stand nor walk; occasionally lift or carry up to five pounds, had limitations regarding 

pushing/pulling activities with his hands; and could occasionally reach and continuously 

flex/rotate his neck. 

{¶ 18} 6. A psychological evaluation was performed by Marian Chatterjee, Ph.D. 

In her December 29, 2015 report, Dr. Chatterjee identified the medical records which she 
No. 16AP-361 7 

reviewed and opined that relator had a mild impairment concerning his activities of daily 

living, as well as concentration, persistence and pace, and a moderate impairment with 

regards to social functioning and adaptation. She further opined that relator had a 19 

percent whole person impairment and that he would be able to work at a low stress job 

with minimal contact with others. 

{¶ 19} 7. Karen Gade-Pulido, M.D., examined relator for his allowed physical 

conditions. In her January 5, 2016 report, Dr. Gade-Pulido identified the allowed 

conditions in relator's claim, as well as her physical findings upon examination, and 

specifically noted that impingement tests were negative. Thereafter, Dr. Gade-Pulido 

opined that relator's allowed physical conditions had reached MMI and that he was able 

to perform light-duty work provided he avoid overhead or repetitive use of his upper 

extremity. She concluded her report, stating: 

Mr. Falgiani is at MMI relative to the allowed conditions. He 

has received extensive treatment for these conditions over 

the years since his injuries and additional treatment at this 

time is not likely to result in a fundamental functional or 

physiological change in his allowed conditions. He reports 

significant impairment relative to his shoulders primarily, 

however his physical examination today demonstrates fairly 

unremarkable findings, aside from reduced range of motion, 

most notable in the more symptomatic right shoulder. His 

strength, including that of the shoulder girdle, is normal, and 

there is no evidence of muscle atrophy that would indicate 

significant loss of function. While he should avoid repetitive 

or overhead use of the upper extremities, his current history 

and examination findings do not preclude the use of his arms 

for a light physical demand category of work. 

{¶ 20} 8. The vocational evidence in the record includes the following: (1) the 

December 22, 2009 Ohio Bureau of Workers' Compensation ("BWC") vocational 

rehabilitation closure report which indicated that during physical therapy/work 

conditioning, relator began having significant pain at the sight of his hernia repair (a nonwork related condition), and his file was "closed due to medical instability of a non-workrelated medical condition;" (2) the July 11, 2013 letter from CareWorks indicating that 

relator had been referred for vocational rehabilitation services; however, because they 

were "unable to contact [him] to confirm interest in Vocational Rehabilitation services," 

relator was deemed not currently ready for vocational rehabilitation services; (3) the 

November 12, 2013 letter from CareWorks again finding that relator was currently not 
No. 16AP-361 8 

ready for vocational rehabilitation services because they had been unable to contact him 

to confirm his interest in those services; (4) the August 20, 2014 BWC vocational 

rehabilitation closure report indicating that relator's vocational rehabilitation file was 

being closed because he did not feel he was a candidate for even part-time employment; 

(5) the February 19, 2015 letter from CareWorks informing relator that his doctor, "Dr. 

Enyeart has provided limitations for only being []able to sit stand and walk for 1 hour 

each day;" and (6) the July 13, 2015 letter from CareWorks informing relator that his 

rehabilitation file was being closed due to "[l]ack of plan potential." 

{¶ 21} 9. Relator submitted an employability assessment prepared by Shannon C. 

Valentine MRC, CRC. In her March 3, 2016 report, Valentine administered various 

testing indicating that relator's general educational skills were fair for activities of daily 

living, but would fall short of those required for formal retraining for a more skilled 

position within his physical limitations, that he had considerable difficulty when 

attempting to perceive tabular material, observe differences in copies, or proofread, would 

not be a viable candidate for entry-level, sedentary, clerk-related work, and that he was 

unable to complete the Minnesota Dexterity Test due to pain in his right and left 

shoulders. Assuming that he could perform sedentary work, Valentine opined that relator 

had neither marketable nor transferable skills given his past relevant work history and 

current limitations. Valentine indicated that relator did not appear to be able to perform 

light-duty work as indicated by Dr. Gade-Pulido, and that he did not have the physical 

tolerance to engage in competitive employment even on a part-time basis. 

{¶ 22} 10. The statement of facts prepared following the submission of relator's 

application notes the following other relevant factors: 

Vocation evaluation report completed on 01-30-2015. 

Medical history includes hypogonadism, hyperlipidemia, 

osteoarthritis, avascular necrosis of bone of hip and a 

compression fracture to lumbar back due to roller coaster 

accident in 10/2000. Legal history includes a DUI in 1996 

and attendance to a Alcohol Anonymous program. Injured 

Worker admits to using marijuana on a recreational basis. 

Injured Worker and his spouse also own 3 rental properties 

that they are responsible to make repairs and upkeep on. 

{¶ 23} 11. Relator's application for PTD compensation was heard before a staff 

hearing officer ("SHO") on March 17, 2016. The SHO relied on the medical reports of Drs. 
No. 16AP-361 9 

Gade-Pulido and Chatterjee, and then addressed the non-medical disability factors 

finding that relator's age, education, and prior work experience to be positive, stating: 

The Staff Hearing Officer finds that the Injured Worker is 58 

years of age, which is considered to be a person of middle 

age. The Injured Worker's age is a neutral factor for his 

potential for re-employment. In analyzing this factor, the 

Staff Hearing Officer, finds that the Injured Worker has 

approximately seven years in the workforce. 

The Staff Hearing Officer finds that the Injured Worker's 

education is a positive factor in the Injured Worker's 

potential for re-employment. The Injured Worker has a high 

school education graduating from Girard High School in 

1975. The Staff Hearing Officer finds that the Injured 

Worker's ability to obtain his high school education does 

provide him with the necessary skills to obtain basic entrylevel work. In addition, the record indicated that [] the 

Injured Worker attended business management and 

accounting classes at ITT Technical Institute in 1989. The 

Staff Hearing Officer finds that this level of education 

demonstrates the Injured Worker's ability to acquire and 

apply this knowledge. 

The Staff Hearing Officer finds that the Injured Worker's 

work experience is also a positive factor in his potential for 

re-employment. The Injured Worker's reported work 

experience on the IC-2 application consisted of four former 

positions of employment as a food service worker for a 

hospital, manager/partner of a State Liquor Store, 

owner/operator of a wine shop, and as a shipper/production 

worker for the Employer of record. The Staff Hearing Officer 

also finds per the Injured Worker's testimony at hearing that 

he owns some rental property. The Staff Hearing Officer 

finds that these former positions of employment consisted of 

positions ranging in skill from unskilled to skilled positions 

and in strength level from light to medium. The Staff 

Hearing Officer notes that he owned and operated two 

businesses per the IC-2 application, and in one of these 

positions, he managed four employees. The Staff Hearing 

Officer also finds that the Injured Worker's length of 

employment, particularly with the Employer of record, for 

nine years demonstrates his strong work ethic. 

The Injured Worker also held positions which provided him 

with decision-making skills and interpersonal skills in 

dealing with others particularly in his employment as the 

owner/operator of the State Liquor Store in which he 

indicated that he managed four employees. Based upon these 
No. 16AP-361 10 

positive work characteristics, the Staff Hearing Officer finds 

that the Injured Worker's work experience is a positive factor 

in his potential for re-employment. 

The Staff Hearing Officer finds that overall, the Injured 

Worker's non-medical disability factors are positive factors 

from a vocational standpoint. The Staff Hearing Officer finds 

that the Injured Worker's non-medical disability factors of 

education and work experience are positive factors and that 

the Injured Worker can perform or can be retrained to 

perform other occupations based upon these positive factors. 

The Staff Hearing Officer concludes that the Injured 

Worker's non-medical disability factors as a whole favor reemployment. 

{¶ 24} 12. Relator's request for reconsideration was denied by order of the 

commission mailed April 22, 2016 and re-mailed on June 23, 2016. 

{¶ 25} 13. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 26} Relator makes the following three arguments: (1) Dr. Gade-Pulido's 

restriction that he avoid overhead and repetitive use of his upper extremities, by 

definition, does not constitute light-duty work; (2) the vocational report of Valentine, who 

administered various vocational tests, clearly demonstrates that he is not employable; and 

(3) the commission abused its discretion by finding that his vocational factors favored reemployment without explaining how they enhance his employability. 

{¶ 27} For the reasons that follow, the magistrate finds that relator fails to 

demonstrate entitlement to a writ of mandamus. 

{¶ 28} 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). 

{¶ 29} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, relator must show a clear legal right to the relief sought 

and that the commission has a clear legal duty to provide such relief. State ex rel. 

Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of 

mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel. 
No. 16AP-361 11 

Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record 

contains some evidence to support the commission's findings, there has been no abuse of 

discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry 

Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be 

given evidence are clearly within the discretion of the commission as fact finder. State ex 

rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). 

{¶ 30} 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). 

{¶ 31} Relator first argues that the report of Dr. Gade-Pulido is internally 

inconsistent and the fact that she restricted him to avoid overhead and repetitive use of 

his upper extremity precludes an ability to perform light-duty work. 

 Ohio Adm.Code 4121-3-34(B)(2)(b) states, in pertinent 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. 

{¶ 32} Contrary to relator's argument, nothing in the definition of light-duty work 

would require a worker to perform overhead activities. As such, to the extent he asserts 

that Dr. Gade-Pulido's restriction that he avoid overhead use of his upper extremities 

precludes him from performing light-duty work, relator is incorrect. Further, nothing in 
No. 16AP-361 12 

the definition of light-duty work requires a worker to repetitively use their upper 

extremities. Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of 

force frequently, does not necessarily require that those actions be performed repetitively. 

Also the fact that relator might not be able to perform a full range of light-duty work does 

not render Dr. Gade-Pulido's report inconsistent, nor does it invalidate the commission's 

conclusion that relator is capable of performing light-duty work. See State ex rel. Wood v. 

Indus. Comm., 78 Ohio St.3d 414 (1997). 

{¶ 33} Relator next argues the commission abused its discretion when it 

determined that his vocational factors favored re-employment. Relator asserts that the 

employability evaluation conducted by Valentine provided objective testing establishing 

that his education and work experience were not positive factors, and did not provide him 

with any transferrable skills. 

{¶ 34} The commission is the expert on non-medical/vocational evidence and has 

the discretion to accept or reject any vocational evidence submitted. State ex rel. Jackson 

v. Indus. Comm., 79 Ohio St.3d 266 (1997). To bind the commission to a rehabilitation 

report's conclusions would make the rehabilitation division, and not the commission, the 

ultimate evaluator of disability, contrary to State ex rel. Stevenson v. Murray, 69 Ohio 

St.2d 112 (1982). See also State ex rel. Singleton v. Indus. Comm., 71 Ohio St.3d 117 

(1994). 

{¶ 35} As the commission noted in its order, relator was a high school graduate 

and had pursued some business management and accounting classes. The commission 

determined that his prior occupations provided him with decision-making skills, as well 

as interpersonal skills dealing with others, noting that he had managed a state liquor 

store, owned and operated a wine shop, and currently owns some rental property. The 

magistrate finds that it was not an abuse of discretion for the commission to find that his 

age, education, and work experience were positive vocational factors. 

{¶ 36} Lastly, relator argues that the commission failed to explain how his positive 

vocational factors enhanced his ability to become re-employed. The SHO specifically 

noted that relator's high school education provided him with the necessary skills to obtain 

basic entry-level work and the ability to acquire and apply knowledge. The SHO also 

determined that the prior work position provided relator with decision-making skills and 

interpersonal skills in dealing with others. To the extent that relator seems to argue that 

the commission's order does not meet the requirements of Noll, the magistrate disagrees. 
No. 16AP-361 13 

The commission stated the evidence upon which it relied and provided a brief 

explanation. That is all that is required. 

{¶ 37} Based on the foregoing, it is this magistrate's conclusion 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).