[Cite as State ex rel. Healthcare Servs. Group, Inc. v. Indus. Comm., 2021-Ohio-2477.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. : 

Healthcare Services Group, Inc., 

 : 

 Relator, 

 : 

v. No. 19AP-398 

 : 

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

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on July 20, 2021 

 

On brief: Morrow & Meyer, LLC, and Corey L. Crognale, for 

relator. 

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

respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

MENTEL, J. 

{¶ 1} Relator, Healthcare Services Group, Inc., brought this original action seeking 

a writ of mandamus ordering respondent, the Industrial Commission of Ohio, to vacate its 

order granting permanent total disability compensation to its employee, respondent 

James H. Carroll, arising from a lower back injury incurred on December 14, 2011. 

{¶ 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. The magistrate issued a decision on January 4, 

2021, including findings of fact and conclusions of law, appended hereto. The magistrate 

recommends that we deny the request for a writ of mandamus. See App'x at ¶ 21. The 

magistrate also provided notice to the relator of the opportunity under Civ.R. 53(D)(3) to 

object to the findings of fact and conclusions of law in the decision. Id. 
No. 19AP-398 2 

{¶ 3} Relator filed no objection to the magistrate's decision. "If no timely objections 

are filed, the court may adopt a magistrate's decision, unless it determines that there is an 

error of law or other defect evident on the face of the magistrate's decision." Civ.R. 

53(D)(4)(c). Our review of the magistrate's decision reveals no error of law or other evident 

defect. See, e.g., State ex rel. Alleyne v. Indus. Comm., 10th Dist. No. 03AP-811, 2004-

Ohio-4223 (adopting the magistrate's decision where no objections were filed). 

Accordingly, we adopt the decision of the magistrate, including the findings of fact and 

conclusions of law therein and deny the request for a writ of mandamus. 

Writ of mandamus denied. 

DORRIAN, P.J., and BROWN, J., concur. 

_________________ 
No. 19AP-398 3 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. : 

Healthcare Services Group, Inc., 

 : 

 Relator, 

 : 

v. No. 19AP-398 

 : 

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 January 4, 2021

 

Morrow & Meyer, LLC, and Corey L. Crognale, for relator. 

Dave Yost, Attorney General, Anna Isupova, for respondent 

Industrial Commission of Ohio. 

 

IN MANDAMUS 

{¶ 4} Relator, Healthcare Services Group, Inc. ("Healthcare") brings this original 

action requesting a writ of mandamus ordering respondent Industrial Commission of Ohio 

("commission") to vacate its order granting permanent total disability ("PTD") 

compensation to respondent James H. Carroll, and enter an order denying such 

compensation. 

Findings of Fact: 

{¶ 5} 1. Carroll was injured in the course and scope of his employment with 

Healthcare on December 14, 2011, when he injured his lower back. (Stip. at 1.) 
No. 19AP-398 4 

{¶ 6} 2. Carroll's claim was allowed for "sprain lumbar region" and "disc 

protrusion L4-L5." (Stip. at 86.) 

{¶ 7} 3. Carroll file a motion to allow additional claims for major depressive 

disorder and anxiety disorder, culminating in a right-to-participate action in the Franklin 

County Court of Common Pleas. By judgment entered January 26, 2017, pursuant to a jury 

verdict in favor of Healthcare, the court denied Carroll's right to participate for the 

additional conditions. 

{¶ 8} 4. In the course of the right-to-participate action, Carroll sat for deposition 

on July 29, 2016 giving testimony about his personal level of physical activity and other 

circumstances related to his claims. Eleven pages of that deposition are included in the 

present stipulated record. 

{¶ 9} 5. In his deposition, Carroll discussed traveling to Tennessee since his injury 

to visit his daughter. He stated that the last time he had traveled to Tennessee was about 

45 days before the deposition when he drove from Ohio to Florida for a funeral and stopped 

in Tennessee to see his daughter both on the way down and on the way back. He made the 

trip unaccompanied and drove by himself the entire way. (Stip. at 42.) He visited with his 

daughter perhaps once or twice a year in recent years. (Stip. at 45.) He always drove alone 

because his wife could not get time off work. (Stip. at 46.) Some three or four years before 

the deposition, Carroll and his wife drove to Myrtle Beach for vacation. He also drove once 

a year to visit his mother in Alabama. (Stip. at 69.) 

{¶ 10} 6. Carroll filed his PTD application on April 6, 2018. (Stip. at 2.) 

{¶ 11} 7. Carroll's treating physician, Brian M. Oricoli, M.D., produced a 

February 8, 2017 report pursuant to examination opining that Carroll was permanently 

disabled and his back injuries prevented him from returning to work. (Stip. at 16.) Dr. 

Oricoli reported that Carroll could only sit, stand, or walk for less than ten minutes without 

interruption. (Stip. at 17.) 

{¶ 12} 8. Carroll received an examination at the request of Healthcare by Michael J. 

Rozen, M.D., to evaluate the allowed physical conditions. Dr. Rozen's report opined that 

"despite his subjective pain complaints, he is capable of sitting for at least 20 to 30 minutes 

at a time with the ability to change positions." (Stip. at 25.) Dr. Rozen opined that "based 

on his allowed claim conditions and objective physical findings he is able to participate in 
No. 19AP-398 5 

at least sustained sedentary remunerative employment related to the work incident, subject 

of this claim. ." (Stip. at 24.) 

{¶ 13} 9. A commission doctor, James J. Sardo, M.D., examined Carroll and 

produced a report on October 15, 2018. (Stip. at 30.) Dr. Sardo concluded as follows: "His 

physical limitations include significant restriction of lumbar range of motion and difficulty 

with ambulation. He would be able to perform sedentary work duties including primarily 

sitting and moving up to 10 pounds on an occasional basis." (Stip. at 30.) 

{¶ 14} 10. A commission staff hearing officer ("SHO") heard the matter and on 

February 15, 2019 issued an order stating that Carroll was unable to perform any sustained 

remunerative employment solely as a result of the medical impairment caused by his 

allowed physical conditions. (Stip. at 86.) The SHO specifically held that the finding was 

based on the February 8, 2017 medical report of Dr. Oricoli and Carroll's personal 

testimony at the PTD hearing. (Stip. at 86.) The SHO specified that it was "not necessary 

to discuss or analyze the Injured Worker's non-medical disability factors." (Stip. at 86.) 

{¶ 15} 11. Healthcare filed a request for reconsideration before the commission on 

March 5, 2019. (Stip. at 88.) The commission denied reconsideration by order dated March 

12, 2019. (Stip. at 99.) 

{¶ 16} 12. Healthcare filed its complaint in mandamus on June 24, 2019. 

Discussion and Conclusions of Law: 

{¶ 17} 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). 
No. 19AP-398 6 

{¶ 18} "It is immaterial whether other evidence, even if greater in quality and/or 

quantity, supports a decision contrary to the commission's." State ex rel. Pass v. C.S.T. 

Extraction Co., 74 Ohio St.3d 373, 376 (1996). In the present case, some evidence exists in 

the form of the medical report relied upon by the SHO in reaching the determination that 

Carroll is permanently and totally disabled. The relevant inquiry in a PTD application is 

whether the claimant is capable of performing "sustained remunerative employment." R.C. 

4123.58(C)(2); State ex rel. Pilarczyk v. Geauga Cty., 157 Ohio St.3d 191, 2019-Ohio-2880, 

¶ 11; State ex rel. Domjancic v. Indus. Comm., 69 Ohio St.3d 693, 695 (1994); State ex rel. 

Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987). Payment of PTD is inappropriate 

where there is evidence of actual sustained remunerative employment. State ex rel. Kirby 

v. Indus. Comm., 97 Ohio St.3d 427, 2002-Ohio-6668, or the physical ability to perform 

sustained remunerative employment, State ex. rel. Schultz v. Indus. Comm., 96 Ohio St.3d

27, 2002-Ohio-3316, or the claimant has engaged in activities so medically inconsistent 

with the disability evidence that they impeach the medical evidence underlying the award. 

State ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-6086, ¶ 16. 

{¶ 19} Healthcare asserts here that both the conflicting medical reports and Carroll's 

own account of his travel activities are sufficient to impeach Dr. Oricoli's report and 

opinion. While it is certainly permissible to impeach a medical report with the claimant's 

testimony or other testimony regarding the claimant's level of physical activity, Lawson, 

supra, that does not mean that it is obligatory that the commission consider medical 

reports definitively impeached by such testimony. The commission retains its full 

discretion as finder of fact to weigh the evidence, and as long as there is some evidence, as 

there was here in the form of Dr. Oricoli's medical report, the commission's determination 

is not an abuse of discretion. 

{¶ 20} The claimant's testimony may constitute some of the evidence upon which 

the commission relies. State ex rel. G&J Pepsi Cola v. Indus. Comm., 10th Dist. No. 07AP642, 2008-Ohio-3564, ¶ 45-46. Carroll testified before the SHO that he requires help with 

bathing and dressing and utilizes a cane to walk. (Stip. at 86.) The SHO could choose to 

weigh the more recent testimony regarding impairment more heavily. As the exclusive 

evaluator of weight and credibility of evidence, the commission's determination will not be 

reviewed in this mandamus action on the basis that this court might simply disagree with 

the commission's assessment of the weight and probative value of the conflicting medical 
No. 19AP-398 7 

reports and testimony. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). The 

purported conflicts presented as impeaching evidence often present variations in degree 

rather than absolute contradictions: 

One of the most enduring (though not often explicitly stated) 

misconceptions about PTD is that once it is granted, the 

recipient must thereafter remain virtually housebound. This 

is a fallacy. PTD exempts no one from life's daily demands. 

Groceries must be purchased and meals cooked. Errands must 

be run and appointments kept. The yard must be tended and 

the dog walked. Where children are involved, there may be 

significant chauffeur time. For some, family and friends 

shoulder much of the burden. Others, on the other hand, lack 

such support, leaving the onus of these chores on the PTD 

claimant. 

These simple activities can nevertheless often generate 

considerable controversy. * * * State ex rel. Parma Comm. 

Gen. Hosp. v. Jankowski, 95 Ohio St.3d 340, 2002-Ohio2336, acknowledged this and cautioned against an automatic 

disqualification from compensation based on the 

performance of routine tasks * * *. We instead compared the 

activities with claimant's medical restrictions to determine 

whether they were so inconsistent as to impeach the medical 

evidence underlying the disability award. 

Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-6086 at ¶ 20-21. 

{¶ 21} As the Supreme Court of Ohio did in Mondie Forge, the magistrate finds that 

the commission did not abuse its discretion considering the medical disability factors in 

awarding PTD in this case, and the existence of contradictory evidence is not a grounds for 

finding such an abuse of discretion. It is accordingly the magistrate's decision and 

recommendation that the court deny the requested writ of mandamus. 

 

 /S/ MAGISTRATE 

 MARTIN L. DAVIS 

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), 
No. 19AP-398 8 

unless the party timely and specifically objects to that factual 

finding or legal conclusion as required by Civ.R. 53(D)(3)(b).