[Cite as State ex rel. Kidd v. Indus. Comm., 2022-Ohio-450.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Donna J. Kidd, : 

 

 Relator, : 

v. : No. 20AP-364 

 

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

 

 Respondents. : 

 

D E C I S I O N 

Rendered on February 15, 2022 

 

On brief: Schaffer and Associates, L.P.A., and Thomas J. 

Schaffer, for relator. 

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

for respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

LUPER SCHUSTER, P.J. 

{¶ 1} Relator, Donna J. Kidd, initiated this original action requesting this court 

issue a writ of mandamus ordering respondent, Industrial Commission of Ohio 

("commission"), to vacate its order denying her application for permanent total disability 

("PTD") compensation, and to enter a new order, either granting or denying the application, 

that complies with State ex rel. Libecap v. Indus. Comm., 10th Dist. No. 96APD01-29, 1996 

Ohio App. LEXIS 3892 (Sept. 5, 1996), aff'd without opinion, 83 Ohio St.3d 178 (1998). 

{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 

and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the 

appended decision, including findings of fact and conclusions of law. The magistrate 

determined that the commission did not abuse its discretion because its order denying 
No. 20AP-364 2 

Kidd's PTD compensation application is supported by some evidence. Thus, the magistrate 

recommends this court deny Kidd's request for a writ of mandamus. Kidd has filed 

objections to the magistrate's decision. First, she argues that the magistrate improperly 

concluded the commission's denial of Kidd's PTD compensation application is supported 

by some evidence. Second, she argues the magistrate failed to adequately recite Dr. Sanjay 

Shah's finding that Kidd be "[a]llow[ed] rest periods every 15-20 minutes for 1-2 minutes 

as needed during standing, sitting, or walking." (Oct. 28, 2021 Objs. to Mag.'s Decision at 

6.) 

{¶ 3} For this court to issue the requested writ of mandamus, Kidd 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. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). But when 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). The commission "has substantial leeway in both interpreting and drawing 

inferences from the evidence before it." State ex rel. Lawson v. Mondie Forge, 104 Ohio 

St.3d 39, 2004-Ohio-6086, ¶ 34. Thus, we must not "second-guess the commission's 

evaluation of the evidence." State ex rel. Black v. Indus. Comm., 137 Ohio St.3d 75, 2013-

Ohio-4550, ¶ 22. The relevant inquiry in a PTD compensation determination is the 

claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic 

v. Indus. Comm., 69 Ohio St.3d 693, 695 (1994); Ohio Adm.Code 4121-3-34(B)(1). 

{¶ 4} Here, Kidd submitted her PTD compensation application with a report 

completed by Mickey E. Frame, D.C., who opined that Kidd is unable to work due to her 

allowed conditions. On her application form, Kidd indicated that she was limited to driving 

for one hour at a time, sitting for 30 minutes at a time, standing for 30 minutes at a time, 

and walking for approximately one-half mile at a time. At the commission's request, Dr. 

Shah performed an independent medical examination of Kidd. In his report, Dr. Shah 

opined that Kidd could work at a sedentary level, but he noted, inter alia, the following 

limitations: "standing for approximately 20 minutes, sitting for 20-30 minutes with change 
No. 20AP-364 3 

in position and is able to walk 1/2 mile. * * * Allow rest periods every 15-20 minutes for 1-2 

minutes as needed during standing, sitting, or walking." (Specialist Report at 4-5, Stip. of 

Evidence at 20986-Y61 & Y62.) Dr. Shah further noted that Kidd reported that she uses a 

treadmill for approximately 30 minutes four times per week. A vocational specialist, Anne 

Savage Veh, evaluated Kidd and opined that she is no longer capable of engaging in 

sustained, remunerative employment. 

{¶ 5} A commission staff hearing officer ("SHO") determined that Dr. Shah's 

findings and restrictions were consistent with Kidd's reported limitations and the definition 

of sedentary work for the purpose of reviewing her PTD compensation application. The 

SHO noted that modern innovations in office equipment, such as sit or stand desks and 

wireless telephones, and the advancements in remote work technology, enable work-fromhome employees to change positions at their convenience. Consequently, the SHO rejected 

Kidd's argument that she is physically incapable of performing sedentary work. The SHO 

also considered non-medical disability factors and concluded that Kidd is capable of 

returning to sustained remunerative employment and therefore denied the PTD 

compensation application. The commission refused continuing jurisdiction, and Kidd filed 

this mandamus action. 

{¶ 6} Before the magistrate, Kidd argued the commission abused its discretion 

because it relied on a medical report (of Dr. Shah) that does not constitute some evidence 

under Libecap. The magistrate disagreed, finding Libecap distinguishable. The magistrate 

found that Dr. Shah's report sets forth restrictions that do not limit Kidd from activities in 

a sedentary job, noting, like the SHO, the advancements in work-from-home technology 

and workspace furniture that readily accommodate position changes. Concerning Kidd's 

second objection to the magistrate's decision, we note the magistrate's findings of fact 

provide an extensive recitation of the report of the vocational specialist, Veh, which includes 

Veh's quotation of Dr. Shah's statement that Kidd be "[a]llow[ed] rest periods every 15-20 

minutes for 1-2 minutes as needed during standing, sitting, or walking." (Mag.'s Decision 

at ¶ 23.) Although the magistrate did not directly quote Dr. Shah's statement regarding 

Kidd needing rest periods, his indirect reference was sufficient to adequately recite that 

finding. Thus, Kidd's second objection lacks merit. 
No. 20AP-364 4 

{¶ 7} Kidd's first objection, however, is convincing. We agree that the reasoning of 

the SHO and magistrate was flawed as to the law's application to the facts of this matter. In 

their analyses of Kidd's ability to perform sedentary employment, both the SHO and 

magistrate emphasized advancements in workplace technology and furniture as means for 

Kidd to change her working position at her convenience. Although workspace flexibility 

has advanced significantly in recent years, the definition for sedentary work in Ohio 

Adm.Code 4121-3-34(B)(2)(a) is the same as it existed when Libecap was decided in 1996. 

As in Libecap, Kidd's limitations found by Dr. Shah are seemingly inconsistent with that 

definition. 

{¶ 8} For the purpose of the adjudication of PTD compensation applications, Ohio 

Adm.Code 4121-3-34(B)(2)(a) defines "sedentary work" as the following: 

exerting up to ten pounds of force occasionally (occasionally: 

activity or condition exists up to one-third of the time) and/or 

a negligible amount of force frequently (frequently: activity or 

condition exists from one-third to two-thirds of the time) to lift, 

carry, push, pull, or otherwise move objects. Sedentary work 

involves sitting most of the time, but may involve walking or 

standing for brief periods of time. Jobs are sedentary if walking 

and standing are required only occasionally and all other 

sedentary criteria are met. 

In Libecap, William G. Littlefield, M.D., reported Libecap's limitations as follows: 

The medical and functional limitations are that the claimant 

would have difficulty in occupations requiring bending and 

lifting objects from below the level of the knee or any of them 

involving extreme rotation of the spine or performing over 

head activities. She would not be able to lift more than 5 or 10 

pounds and would have difficulty in any occupation that would 

involve sitting or standing for more than 30 minutes. Frequent 

breaks and allowing the claimant to change positions would be 

required. Repetitive activities would not be tolerated in the 

upper extremities. 

The commission denied Libecap's PTD compensation application based on the reports of 

Dr. Littlefield and a psychologist who provided "some insight to Ms. Libecap's psychological 

profile." Id. This court found that denial to be an abuse of discretion because the 

commission relied on reports that did not constitute some evidence. Although Ohio 
No. 20AP-364 5 

Adm.Code 4121-3-34(B)(2)(a) became effective after Libecap submitted her PTD 

compensation application, and thus technically did not apply, this court viewed 

Dr. Littlefield's limitation findings as not being "consistent with sedentary work as defined 

in the Ohio Administrative Code or with the general definition of 'sedentary work' utilized 

before Ohio Adm.Code 4121-3-34(B)(2)(a) became effective." Libecap.

{¶ 9} In State ex rel. Owens Corning Fiberglass v. Indus. Comm., 10th Dist. No. 

03AP-684, 2004-Ohio-3841, ¶ 56, this court noted that the problem in Libecap "was with 

the commission's finding of capacity for sedentary, sustained remunerative employment 

based on a report that, read in its entirety, clearly precluded sustained remunerative 

employment of a sedentary nature." This court further explained that "where a physician 

places the claimant generally in the sedentary category but has set forth functional 

capacities so limited that no sedentary work is really feasible (such as an inability to sit for 

more than 30 minutes), then the commission does not have discretion to conclude based 

on that report that the claimant can perform sustained remunerative work of a sedentary 

nature." Owens Corning Fiberglass at ¶ 56. See State ex rel. Miller v. Indus. Comm., 10th 

Dist. No. 13AP-418, 2014-Ohio-1742, ¶ 54 (discussing the problem in Libecap and 

distinguishing the case because the restrictions in the physician's report did not preclude 

an ability to perform sedentary work). That is, "functional abilities may be so limited that 

only brief periods of work activities would be possible, which would not constitute 

sustained remunerative employment." State ex rel. Elastomers v. Torok, 10th Dist. No. 

02AP-116, 2002-Ohio-4770, ¶ 14, citing Libecap. Resolution of the type of apparent 

inconsistency found in Libecap requires an adequate explanation by the commission. See 

State ex rel. Howard v. Millennium Inorganic Chems., 10th Dist. No. 03AP-637, 2004-

Ohio-6603, ¶ 12 (directing commission, pursuant to Libecap, to vacate order denying PTD 

compensation application and to enter a new order either granting or denying the 

application, with an explanation "adequately resolving the apparent inconsistency between 

the medical restrictions contained in [the medical report relied on] and the concept of the 

ability to maintain sustained remunerative employment."). 

{¶ 10} The commission argues the SHO and magistrate properly found Libecap is 

distinguishable because Kidd not only can sit, stand, and walk, she can use a treadmill for 

approximately 30 minutes, four times per week. The commission also cites the advances 
No. 20AP-364 6 

in technology and Kidd's potential proficiency in that regard as facts distinguishing this 

case from Libecap. But those facts do not address Kidd's apparent impediment to 

sedentary work, as that term is defined the Ohio Administrative Code. Sedentary work is 

defined to include "sitting most of the time." As acknowledged in Libecap, and further 

explained in Owens Corning Fiberglass, the inability to sit for more than 30 minutes is 

inconsistent with sedentary work as defined in the Ohio Administrative Code. And Kidd's 

use of a treadmill for 30 minutes, four times per week, is not inconsistent with the 

limitations discussed by Dr. Shah. The commission also suggests that Kidd's rest-period 

requirement would not be an impediment to sedentary work because she could change 

position or stand and walk as necessary. But Dr. Shah's report indicates that Kidd requires 

one- or two-minute rest periods every 15 to 20 minutes "as needed during standing, sitting, 

or walking." This indicates Kidd needs to stop working for one or two minutes every 15 to 

20 minutes, not that she simply change positions, stand, or walk after sitting for a spell. 

Thus, we find Kidd's inability to sit for more than 30 minutes, and her need to take a oneor two-minute rest period every 15 to 20 minutes, is akin to the limitations this court found 

in Libecap to be seemingly inconsistent with sedentary work, as the Ohio Administrative 

Code defines that term. Consequently, we are persuaded by Kidd's first objection to the 

magistrate's decision. 

{¶ 11} Following our independent review of the record pursuant to Civ.R. 53, we find 

no error in the magistrate's recitation of the facts. However, we find the magistrate erred 

in applying the pertinent law to those facts and determining the commission's denial of 

Kidd's PTD compensation application was not an abuse of discretion. We therefore sustain 

Kidd's first objection to the magistrate's decision, overrule her second objection to the 

magistrate's decision, and grant her request for a writ of mandamus. Accordingly, the 

commission shall vacate its order denying Kidd's PTD compensation application and enter 

a new order that adjudicates the PTD compensation application in a manner consistent 

with this decision. 

Objections sustained in part and overruled in part; 

writ granted. 

SADLER and BEATTY BLUNT, JJ. 

 
No. 20AP-364 7 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

State ex rel. Donna J. Kidd, : 

 

 Relator, : 

v. : No. 20AP-364 

 

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 October 14, 2021

 

Schaffer and Associates, L.P.A., and Thomas J. Schaffer, for 

relator. 

Dave Yost, Attorney General, and Anna Isupova, for 

respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

{¶ 12} Relator, Donna J. Kidd, seeks a writ of mandamus ordering respondent, 

Industrial Commission of Ohio ("commission"), to vacate its order denying permanent 

total disability ("PTD") compensation for relator, and enter a new order that complies 

with State ex rel. Libecap v. Indus. Comm., 10th Dist. No. 96APD01-29 (Sept. 5, 1996), 

aff'd without opinion, 83 Ohio St.3d 178 (1998). 

Findings of Fact: 

{¶ 13} 1. Relator worked for respondent Tron Air, Inc. ("Tron Air"), as a 

warehouse and production worker. On September 19, 2013, relator sustained an injury 
No. 20AP-364 8 

in the course of and arising out of her employment with Tron Air when she lifted a heavy 

box while standing on a ladder and twisted her back while turning to put the box on a 

shelf. (Stip. at 1, 35-38.) 

{¶ 14} 2. Relator's claim was allowed for "lumbosacral strain; herniated disc L5-

S1; spinal stenosis without claudication lumbar L5-S1; failed lumbar spine surgery 

syndrome L5-S1." (Stip. at 35.) 

{¶ 15} 3. Relator returned to work with restrictions until April 8, 2014, when Tron 

Air could no longer accommodate her restrictions. (Stip. at 35.) 

{¶ 16} 4. Relator underwent surgery consisting of an L5 Gill procedure, posterior 

interbody fusion at L5-S1, and posterior nonsegmental instrumentation at L5-S1 on 

February 6, 2015. (Stip. at 2.) Surgery was performed by Brian F. Hoeflinger, M.D. (Stip. 

at 3.) 

{¶ 17} 5. Relator was then referred for vocational rehabilitation. A Vocational 

Rehabilitation Closure Report in the record states that the vocational rehabilitation file 

was closed effective May 23, 2016 without relator securing employment. (Stip. at 5.) 

{¶ 18} 6. Relator eventually secured work as a school cafeteria server in March 

2017 and worked in that position until November 21, 2017. (Stip. at 17.) 

{¶ 19} 7. Relator filed her application for PTD compensation on September 17, 

2018. Relator supported her application with a report prepared by Mickey E. Frame, D.C. 

Dr. Frame noted that relator presented with increasing lower back pain with radiating left 

leg pain. Her condition had progressed to the point where she had difficulty with 

household tasks such as tying her own shoes. Dr. Frame noted severe restrictions of 

relator's range of motion and opined that, in his professional opinion, relator "is unable 

to return to gainful employment due to worsening of her lumbar disc condition and 

radicular leg complaints. It is further my opinion she would be considered permanently 

and totally disabled due to her allowed conditions of herniated disc L5-S1, lumbar spinal 

stenosis L5-S1." (Stip. at 11.) Dr. Frame's assessment was based on relator's inability to 

lift more than 10 pounds on an occasional basis and her need to change her position from 

sitting, standing, and lying on a frequent basis, without maintaining a sitting position 

more than 15 or 20 minutes. (Stip. at 11.) 
No. 20AP-364 9 

{¶ 20} 8. Relator underwent an independent medical evaluation at the request of 

the commission by Sanjay Shah, M.D. Dr. Shah examined relator on January 16, 2019, 

and produced a report dated January 19, 2019. (Stip. at 24.) Dr. Shah recounted relator's 

past treatment including surgery and subsequent physical therapy. Dr. Shah noted that 

relator was able by her own account to use a treadmill four times per week for 

approximately 30 minutes and continued to drive as needed. Relator stated that she 

continued to do some chores at home including laundry, sweeping, and dishes, but at a 

slower pace. Relator reported being very limited in her attempts to cut grass and do other 

yard work. Relator was able to stand for approximately 20 minutes, sit for 20 to 30 

minutes with changes in position, and walk for approximately one-half mile. Relator 

reported one-half pack of cigarettes per day and denied any alcohol use or non-prescribed 

controlled substances. 

{¶ 21} Dr. Shah reviewed relator's medical records, including an August 2013 

spinal MRI, Dr. Hoeflinger's February 2015 surgical report, a January 2016 x-ray of the 

lumbar spine, an MRI of the lumbar spine on the same date, and subsequent pain 

management in 2016. (Stip. at 26.) Dr. Shah also noted acupuncture treatment by 

Dr. Frame. Examination yielded the following observations by Dr. Shah: 

Blood pressure is 119/74. Pulse 82. Temperature 96.9. Weight 

190 pounds. Height 5 ft. 4 inches. Examination of the lower 

extremities revealed that sensation was intact to light touch 

and pinprick. Deep tendon reflexes were 2+ at the quads and 

ankles. Strength was 5/5. Straight leg raising was negative in 

both a seated and supine position but noted tight hamstrings. 

She ambulated without an assistive device with a normal gait 

pattern. She was able to walk on her heels, toes, and squat 

without any difficulty. She has a 10 cm healed surgical scar of 

the lumbosacral area. There is tenderness over the lumbosacral 

paravertebral muscles. She has limited range of motion over 

the lumbosacral spine and range of motion was done with dual 

inclinometer and was consistent with flexion 37 degrees, 

extension 20 degrees, lateral bending to the right 26 degrees, 

lateral bending to the left 25 degrees. She had end range pain. 

(Stip. at 26-27.) 

{¶ 22} Dr. Shah summarized his opinion by stating that relator had reached 

maximum medical improvement ("MMI") for her condition post-surgery. He then 
No. 20AP-364 10 

concluded that considering all limitations, relator could work at a sedentary level with 

additional restrictions of no bending, twisting, squatting, avoid overhead activities, and 

avoid activities that required increased balance including ladders. (Stip. at 28.) 

{¶ 23} 9. Vocational Specialist, Anne Savage Veh, MA, LPCC-S, evaluated relator 

and produced a report dated March 15, 2019. Veh reviewed relator's medical history with 

a particular eye to relator's vocational rehabilitation history. Assessing these in light of 

relator's current assessment of her own pain and limitations, Veh concluded as follows: 

After consideration of the records reviewed and the 

information gathered during the evaluation, it is my opinion 

that due to Ms. Kidd's physical and exertional limitations as 

well as her severe chronic pain and non-transferrable skills, she 

is precluded from returning to any of her previous occupations. 

Dr. Shah opined that Ms. Kidd is capable of sedentary work 

with additional restrictions of no bending, twisting, squatting, 

avoid overhead activities and avoid activities that require 

increased balance, including ladders. Allow rest periods every 

15-20 minutes for 1-2 minutes as needed during standing, 

sitting, or walking." [sic] 

It is my opinion that this list of restrictive barriers is less than 

a sedentary level and no employer will accommodate a break 

every 15 minutes due to being non-productive and inefficient 

for most job tasks. These restrictions are so limiting that 

Ms. Kidd would find it very difficult to find an employer willing 

to accommodate such requirements. 

Additionally, while sitting in this position for 15 minutes, 

Ms. Kidd is in pain and this affects her concentration. At home, 

she is able to change positions frequently. At a job, she would 

not have this opportunity because alternative between sitting, 

standing, and walking around would impact her ability to 

complete job tasks in a timely manner. 

Additionally, she participated in vocational rehabilitation and 

wanted to go back to work. Unfortunately, finding an employer 

who would accommodate her at the restrictive level such as she 

requires could not be identified, even after vocational 

rehabilitation services that included job seeking skills training, 

job development, job coaching and working with an 

employment specialist. 
No. 20AP-364 11 

Though Ms. Kidd was engaged in several interviews, she was 

never offered a job. 

Because of her determination to get a job, Ms. Kidd continued 

to search for a position on her own. She was hired by the 

Compass Group to serve lunches at Lake Schools. She worked 

from March 10, 2017 through November 21, 2017. The physical 

demands of the job were, ultimately more than she could 

manage. November 21, 2017 remains her last day of work. 

Due to her age, disability, need to change positions, and the 

impact of her chronic pain on activities of daily living and being 

non-feasible for rehabilitation, any further retraining would be 

ineffective. 

When the residual effects of Ms. Kidd's allowed conditions are 

considered along with her age (57-vocationally advanced), 

physical and exertional imitations, unrealistic restrictions as 

with a break every 15 minutes, chronic pain, and no 

transferrable skills, Ms. Kidd does not retain the capacity to 

engage in sustained, remunerative employment. It is my 

opinion that she is 100% totally unemployable. 

If you have any questions or need additional information, 

please do not hesitate to call me. 

The contents of this report are based on my opinion to a 

reasonable degree of professional certainty. I reserve the right 

for any modifications deemed necessary should further 

information become available. 

(Stip. at 33-34.) 

{¶ 24} 10. Relator's application for PTD was heard on August 28, 2019 before a 

commission staff hearing officer ("SHO"). The SHO issued an order mailed 

September 24, 2019 denying relator's application. (Stip. at 35.) The SHO noted relator's 

return to work after her initial injury, and subsequent work in other positions. The SHO 

then examined Dr. Shah's report and accepted Dr. Shah's opinion that relator was at MMI 

but could perform sedentary work with accommodations and restrictions. The SHO 

examined the definition of sedentary work under the Ohio Administrative Code and 

concluded as follows: 
No. 20AP-364 12 

The Staff Hearing Officer finds Ohio Adm.Code 4121-3-

34(B)(2)(a) defines sedentary work as "exerting up to ten 

pounds of force occasionally (occasionally: activity or condition 

exists up to one-third of the time) and/or a negligible amount 

of force frequently (frequently: activity or condition exists from 

one-third to two-thirds of the time) to lift, carry, push, pull, or 

otherwise move objects. Sedentary work involves sitting most 

of the time, but may involve walking or standing for brief 

periods of time. Jobs are sedentary if walking and standing are 

required only occasionally and all other sedentary criteria are 

met." 

The Injured Worker testified she wears a back brace and can sit 

for 20 to 30 minutes at a time. The Injured Worker indicated 

on her IC-2 application she was able to drive for one hour at a 

time, she was able to walk one-half mile at a time, stand and sit 

for 30 minutes each at a time, and able to lift up to 10 pounds. 

The Staff Hearing Officer finds the Injured Worker's testimony 

and the information provided on the IC-2 application are 

consistent with Dr. Shah's findings and restrictions, and Ohio 

Adm.Code 4121-3-34(B)(2)(a). The Staff Hearing Officer finds 

modern innovations in office equipment, such as sit/stand 

desks and wireless telephone technology, as well as work-fromhome options, offers workers the ability to change positions at 

their convenience. Therefore, the Staff Hearing Officer is not 

persuaded by the Injured Worker's argument. 

Doctor Shah is found persuasive the Injured Worker is at 

maximum medical improvement for the allowed physical 

conditions and the Injured Worker is capable of performing 

work activities at the sedentary level as a result of injuryinduced restrictions. The restrictions are found to prevent a 

return to work at the prior position of employment. However, 

considering the Injured Worker's degree of medical 

impairment in conjunction with her non-medical disability 

factors, the Staff Hearing Officer finds the Injured Worker is 

capable of returning to sustained remunerative employment 

and is not permanently and totally disabled. 

(Stip. at 36.) 

{¶ 25} The SHO noted relator's adaptability to other employment, age, determined 

relator's age to be a neutral factor, and her high school and vocational training as a 

positive factor. The SHO noted that relator's resume recounted past work with a 
No. 20AP-364 13 

computer as early as 1989, her training as a typist, her ability to use a smart phone 

including posting social media, and found all of these to be transferrable skills. (Stip. at 

37.) 

{¶ 26} 11. Relator moved for reconsideration before the commission. (Stip. at 39.) 

{¶ 27} 12. By order mailed October 25, 2019, the commission refused continuing 

jurisdiction pursuant to R.C. 4123.52. (Stip. at 44.) 

{¶ 28} 13. Relator filed her complaint for writ of mandamus in this court on 

July 23, 2020 and her amended complaint on November 3, 2020. 

Discussion and Conclusions of Law: 

{¶ 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. 

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} Relator argues that the commission relied on a medical report that did not 

support the commission's conclusions, and that the commission failed to properly assess 

the pertinent non-medical factors. For the reasons that follow, the magistrate concludes 

that the commission did not abuse its discretion in denying relator's application for PTD 

benefits. Dr. Shah's report, as well as the balance of the evidence in the record, constitutes 

some evidence upon which the commission could base that determination, and the 

commission addressed non-medical factors as required. 

{¶ 31} Ohio Adm.Code 4121-3-34(B)(2)(a) defines sedentary work as requiring 

occasional exercise of up to ten pounds of force, occasionally constituting up to one-third 
No. 20AP-364 14 

of work time, and the frequent exercise of negligible amounts of force. While sedentary 

work may involve sitting most of the time, it may involve walking or standing for brief 

periods. The definition of sedentary work under this code provision is not intended to 

provide an exhaustive list of findings that must be included in a doctor's report addressing 

the availability of a claimant for sedentary work. State ex rel. Rice v. J.P. Industries, Inc., 

10th Dist. No. 97AP-3 (Feb. 10, 1998 memorandum decision). 

{¶ 32} Relator cites this court's 1996 decision in Libecap, in which this court found 

that a doctor's report did not constitute evidence on which the commission could rely to 

deny PTD compensation. The report in Libecap opined that the injured worker could sit 

for no more than 30 minutes at a time. Because this was inconsistent with the definition 

under the administrative code describing sedentary work as mostly seated with intervals 

of standing or walking, the court issued a writ vacating the commission's denial of PTD 

benefits. 

{¶ 33} In contrast, Dr. Shah's report sets forth restrictions that do not limit relator 

from activities in a sedentary job as described above. His restrictions on bending or 

crawling are not pertinent to the definition of sedentary employment, and his other 

restrictions coincide with the duration limits described in the code. The SHO's 

observations regarding relator's potential technological proficiency would increase the 

flexibility of application of the described restrictions in a modern work environment 

including the potential for remote work by electronic means. The commission properly 

concluded that, while acknowledging the limitations described by Dr. Shah and other 

medical material in the record, relator's self-described ability to sit for twenty to thirty 

minutes at a time with changes in position, coupled with her ability to stand and walk for 

intervals, were consistent with sedentary employment. There was, therefore, some 

evidence upon which the commission could base its conclusion. 

{¶ 34} Relator further asserts the commission erred in its analysis of factors set 

forth in State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987). These are 

the non-medical factors to be considered when assessing the ability to maintain sustained 

remunerative employment, and include age, education, work history, and "all other 

factors, such as physical, psychological, and sociological, that are contained within the 

record in making [a] determination of permanent total disability." Id. at 170. Relator 
No. 20AP-364 15 

objects to the SHO's conclusion that relator's age of 58 was a neutral factor, her work 

history was a positive factor because it reflected a long and varied experience, and relator's 

education was above the standard required for entry-level sedentary work. 

{¶ 35} Relator objects to the SHO's Stephenson analysis because, in relator's view, 

the SHO merely referred to each factor without tying the assessment to evidence in the 

record. Relator points out that Vocational Specialist Veh drew conclusions manifestly 

contrary to the conclusions drawn by the SHO, concluding that relator lacked transferable 

skills and her age was an impediment, and did not address some of the other points cited 

by the SHO. 

{¶ 36} The commission, as the exclusive evaluator of weight and credibility of 

evidence, is not required to accept Veh's report as more or less persuasive than the other 

evidence, or accept the conclusions therein to the exclusion of any other assessment of 

the evidence when assessing the Stephenson factors. The SHO's order, in fact, weighed 

all the medical reports in the file, including relator's self-assessment and reported work 

history, and educational history, and made its own determination as to relator's 

vocational prospects. The SHO concluded that relator, at age 58 with a high school 

diploma including vocational training in graphic communications, coupled with a long 

and varied work history and self-reported good work ethic, could conclude that, coupled 

with the medical report of Dr. Shah describing a physical capacity to return to sedentary 

employment, the other factors weighed in favor of employability as well. Relator's 

educational background, job experience, work skills, and demonstrated work ethic 

represented transferrable skills that would be suitable for sedentary work in a modern 

flexible working environment. 

{¶ 37} The magistrate accordingly concludes that the commission did not abuse its 

discretion in reaching its determination that it would deny relator's PTD application, and 

it is the report and recommendation that the requested writ be denied. 

 

 /S/ MAGISTRATE 

 MARTIN L. DAVIS 
No. 20AP-364 16 

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).