[Cite as State ex rel. Hettinger v. Indus. Comm., 2017-Ohio-7899.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Ronald L. Hettinger, Jr., : 

 

 Relator, : 

v. : No. 16AP-751 

 

Ferrellgas, Inc., and : (REGULAR CALENDAR) 

Industrial Commission of Ohio, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on September 28, 2017 

 

On brief: Craigg E. Gould, for relator. 

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

Omen, for respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

 

KLATT, J. 

{¶ 1} Relator, Ronald L. Hettinger, Jr., commenced this action in mandamus 

seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), 

to vacate its order that denied his application for permanent total disability ("PTD") 

compensation, and to issue an order granting said compensation. 

{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of 

Appeals, we referred this matter to a magistrate who issued a decision, including findings 

of fact and conclusions of law, which is appended hereto. The magistrate found that Dr. 

Reynolds' opinion was some evidence that relator's allowed psychological condition would 
No. 16AP-751 2 

not prevent him from sustained remunerative employment. The magistrate also found 

that the commission was not required to explain why it did not rely on the report of Dr. 

Sed, which relator offered in support of his PTD application. Citing State ex rel. Noll. v. 

Indus. Comm., 57 Ohio St.3d 203 (1991) and State ex rel. Mitchell v. Robbins & Myers, 

Inc., 6 Ohio St.3d 481 (1983), the magistrate noted that the commission is only required 

to identify the medical evidence on which it relies and is not required to cite all the 

evidence it considered. Therefore, the magistrate determined that the commission did 

not abuse its discretion when it denied relator's PTD application. Accordingly, the 

magistrate has recommended that we deny relator's request for a writ of mandamus. 

{¶ 3} Relator has filed objections to the magistrate's decision. In his first 

objection, relator argues that the commission's failure to address Dr. Sed's report 

indicates that the commission did not consider it. Relator also argues that the 

commission was required to discuss Dr. Sed's report and to explain why it was rejected. 

Both of these arguments are misplaced. 

{¶ 4} As noted by the magistrate, the commission is only required to state the 

evidence upon which it relied and to briefly explain the basis for why a claimant is or is 

not entitled to the requested benefits so that there can be a meaningful review of that 

decision if such review is sought. The commission is not required to identify evidence that 

it found unpersuasive. Nor is it required to explain why that evidence was rejected. Noll. 

{¶ 5} Relator contends that State ex rel. Ritzie v. Reece-Campbell, Inc., 146 Ohio 

St.3d 259, 2015-Ohio-5224 required the commission to explain why it rejected Dr. Sed's 

report. We disagree. As the commission points out, in Ritzie, the only medical evidence 

of the alleged disability was from the treating physician. There was no contrary medical 

evidence before the commission. Under those circumstances, Ritzie required the 

commission to explain why it rejected the only medical report in the file. In the case at 

bar, however, there was conflicting medical evidence before the commission. Under those 

circumstances, the commission was only required to state the evidence on which it relied 

and to briefly explain why relator was not entitled to PTD compensation. The commission 

satisfied those requirements. Therefore, we overrule relator's first objection. 

{¶ 6} In his second objection, relator argues that the magistrate should have 

found the commission's reliance on Dr. Reynolds' report was an abuse of discretion. 
No. 16AP-751 3 

Relator contends that Dr. Reynolds' report is not evidence on which the commission could 

rely because Dr. Reynolds' report was issued in the context of a temporary total disability 

("TTD") application and because the report was allegedly stale. Again, we disagree. 

{¶ 7} As noted by the commission, Ohio Adm.Code 4121-3-34(C)(1) permits the 

commission to consider the report of a medical examination that was conducted within 24 

months of the filing of the PTD application. Dr. Reynolds' examination of relator was 

conducted well within that timeframe. Therefore, Dr. Reynolds' report was not stale. Nor 

is it significant that Dr. Reynolds examined relator in the context of a TTD application. If 

relator is capable of returning to his former position of employment, he is capable of 

sustained remunerative employment. For these reasons, we agree with the magistrate 

that the commission did not abuse its discretion when it relied on Dr. Reynolds' report in 

denying relator's PTD application. Therefore, we overrule relator's second objection. 

{¶ 8} Following an independent review of this matter, we find that the magistrate 

has properly determined the facts and applied the appropriate law. Therefore, we adopt 

the magistrate's decision as our own, including the findings of fact and conclusions of law 

contained therein. In accordance with the magistrate's decision, we deny relator's request 

for a writ of mandamus. 

Objections overruled; writ of mandamus denied.

TYACK, P.J, and DORRIAN, J., concur. 

 

 
No. 16AP-751 4 

APPENDIX

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Ronald L. Hettinger, Jr., : 

 

 Relator, : 

v. : No. 16AP-751 

 

Ferrellgas, Inc., : (REGULAR CALENDAR) 

and 

Industrial Commission of Ohio, : 

 

 Respondents. : 

 

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

Rendered on May 12, 2017

 

Craigg E. Gould, for relator. 

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

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 9} Relator, Ronald L. Hettinger, Jr., 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 award. 

Findings of Fact: 

{¶ 10} 1. Relator sustained a work-related injury on September 23, 2008 and his 

workers' compensation claim has been allowed for the following conditions: 
No. 16AP-751 5 

Right shoulder sprain; cervical sprain; tear right 

supraspinatus; tear right infraspinatus; substantial 

aggravation of pre-existing adjustment disorder with 

depressed mood; chronic post surgical pain syndrome. 

{¶ 11} 2. Relator underwent shoulder surgery on April 24, 2009. No tears were 

noted over the infraspinatus or supraspinatus area; however, relator did have a biceps 

tenotomy, subacromial decompression, and labral repair. 

{¶ 12} 3. On November 19, 2015, relator filed his application for PTD 

compensation. According to his application, relator was 43 years of age, graduated from 

high school in 1991, learned welding, and was able to read, write, and perform basic math. 

Relator's employment history includes truck driver, material handler, operating a glazing 

machine, operating a dump truck, and some time as a warehouse supervisor. 

{¶ 13} 4. Relator submitted a report, dated September 3, 2015, from Charles E. 

Adkins, C.N.P. Adkins noted that relator indicated his right shoulder pain remained at 

7/10 and radiated down his right arm to his fingertips. Adkins provided physical findings 

on examination noting extremely limited range of motion of the right shoulder. Adkins 

also noted that relator's recommended work status was restricted duty and the effective 

date for this work status was August 6, 2015. 

{¶ 14} 5. Relator submitted the November 30, 2015 Medco-14 completed by 

Adkins, who opined that relator could not currently return to his former position of 

employment, that he had been unable to perform that job since November 30, 2015, and 

estimating that he would be able to return to the job that he held at the time he was 

injured as of January 4, 2016. 

{¶ 15} 6. Steven S. Wunder, M.D., examined relator concerning the limitations 

related to his allowed physical conditions. In his February 3, 2016 report, Dr. Wunder 

identified the allowed conditions in relator's claim, reviewed the history of his treatment, 

provided his physical findings on examination, specifically noting that the "range of 

motion of the right shoulder was not valid and could not be utilized for an impairment 

rating [because relator] was not cooperative with range of motion." Dr. Wunder was 

unable to obtain three consecutive readings within five degrees of each other noting that 

relator "generated more strength on resisted movement than with manual motor muscle 

testing." 
No. 16AP-751 6 

{¶ 16} In discussing relator's medical treatments, including surgery, Dr. Wunder 

noted that the surgical notes indicate that there had been no evidence of rotator cuff tear, 

but that an MRI taken December 10, 2009 revealed a "type 3 acromion," "moderate 

degenerative changes over the AC joint," "moderate tendinosis of the supraspinatus and 

infraspinatus," "mild degenerative changes of the glenohumeral joint," "an intramuscular 

cyst," and "a diffuse glenoid labrum tear."

{¶ 17} Ultimately, Dr. Wunder opined that relator's allowed physical conditions 

had reached maximum medical improvement ("MMI") and that he had an 8 percent 

whole person impairment, specifically noting that, relator's claim was allowed for tears in 

the right supraspinatus and right infraspinatus, which surgery revealed were not present. 

Dr. Wunder opined that relator had 0 percent impairment of his right shoulder when 

concerning the allowed conditions, and that relator was capable of performing medium 

level work. 

{¶ 18} 7. The stipulation of evidence contains three psychological reports which 

were completed within two years of the filing of relator's application for PTD 

compensation. In his November 21, 2013 report, Donald J. Tosi, Ph.D., interviewed 

relator and conducted psychological testing. Dr. Tosi opined that the psychological 

testing revealed a strong tendency towards symptom magnification and that test results 

should be interpreted with caution. In his opinion, the allowed condition of adjustment 

disorder alone would not preclude relator from returning to his former position of 

employment noting that he was able to function under low to moderate work stress 

conditions. 

{¶ 19} 8. A psychiatric evaluation was also conducted by Mark E. Reynolds, M.D. 

In his January 13, 2015 report, Dr. Reynolds identified the allowed conditions in relator's 

claim and discussed the medical evidence submitted to him. Dr. Reynolds opined that 

relator had bipolar disorder, noting that it was "evident the claimant has been diagnosed 

and treated for Bipolar Disorder." Due solely to the allowed condition of adjustment 

disorder with depressed mood, Dr. Reynolds opined that relator could return to his 

former position of employment. 

{¶ 20} 9. Relator was also examined by Chad M. Sed, Ph.D. In his January 8, 2016 

report, Dr. Sed identified the allowed conditions in relator's claim, discussed the history of 
No. 16AP-751 7 

his treatment, and found that relator had a mild impairment in activities of daily living, 

and a moderate impairment in social functioning, concentration, persistence and pace, as 

well as adaptation. Dr. Sed opined that relator had reached MMI and assessed a 25 

percent whole person impairment. Ultimately, Dr. Sed opined that based solely on the 

allowed conditions in the claim, relator was incapable of work. 

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

hearing officer ("SHO") on May 11, 2016. The SHO relied on the medical reports of Drs. 

Wunder and Reynolds and found that relator was capable of performing sedentary, light, 

and medium sustained remunerative employment based solely on the allowed physical 

conditions in his claim and that, from a psychological standpoint, considering only the 

allowed psychological conditions in his claim and not the unrelated bipolar disorder, 

relator was capable of returning to his former position of employment. 

{¶ 22} Thereafter, the SHO discussed the non-medical disability factors and found 

that relator's current age of 44 years was a positive vocational factor. The SHO also found 

that relator was a high school graduate, had completed a two-year vocational program in 

welding, was able to read, write, and perform basic math, and had used a computer at his 

former positions of employment. As such, the SHO found relator's education was also a 

vocational factor. The SHO found that relator's prior work experience was a neutral to 

positive factor because it indicated that he had generally average aptitudes and 

temperaments and that he had transferrable skills including the ability to perform 

repetitive duties, work with precise tolerances, operate small and large equipment and 

computers, the ability to learn, understand, and comprehend new concepts, follow 

instructions, perform production work under quality standards, relate to coworkers, 

supervisors, and customers. 

{¶ 23} The SHO also discussed relator's vocational efforts, noting as follows: 

Additionally, the Injured Worker was referred for 

consideration of vocational rehabilitation services on three 

occasions, but his case was closed: 1) on 10/23/2010 when 

the Injured Worker, after completing work conditioning and 

JSST, withdrew after a lackluster effort at job search 

activities; 2) on 11/12/2013 due to non-support by the 

physician of record; and 3) on 07/02/2015 due to being 

found not feasible due mainly to a suspended driver's license 
No. 16AP-751 8 

(transportation issue) and a lack of effort and attitude 

toward participation in further rehabilitation services. 

* * * 

As an additional and alternative basis for the denial of this 

application, the Staff Hearing Officer invokes the rule of law 

as found in the decisions of [State ex rel. Speelman v. Indus. 

Comm., 73 Ohio App.3d 757 (10th Dist.1992)], [State ex rel. 

B.F. Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525 

(1995)], [State ex rel. Bowling v. Natl. Can Corp., 77 Ohio 

St.3d 148 (1996)] and [State ex rel. Wilson v. Indus. Comm., 

80 Ohio St.3d 250 (1997)], which indicate that an otherwise 

able Injured Worker is required to attempt any and all forms 

of vocational rehabilitation, retraining or reeducation that 

would assist in or permit a return to work. In this case, the 

Injured Worker has not made any sustained efforts at any of 

these types of vocational or educational services since he last 

worked on 04/23/2009, although he remains eligible for 

consideration even at this time. The Staff Hearing Officer 

particularly notes a pattern as found in the medical and 

vocational reports on file which indicates that the Injured 

Worker has not demonstrated or provided his best efforts in 

these areas. Specifically, noted are the following: 1) the 

06/30/2010 functional capacities evaluation indicated that 

the results were compromised as the Injured Worker 

provided a marginally reliable effort; 2) the 08/10/2010 

psychological report of Ralph Skillings, Ph.D., who found the 

Injured Worker to embellish symptoms and, even at that 

time, told Dr. Skillings that he believed himself to be 

permanently and totally disabled; 3) the 10/23/2010 

vocational rehabilitation closure which indicated that the 

Injured Worker withdrew from services prior to completion; 

4) the 11/21/2013 psychological report of Donald Tosi, Ph.D., 

who noted a strong "fake bad" response and over 

exaggeration which limited the validity of the testing and 

demonstrated a strong tendency toward symptom 

magnification; 5) the 06/26/2015 vocational assessment 

which notes multiple non-claim related issues and the 

assessor's determination that the Injured Worker's 

perception is that his ability to work is quite poor; and 6) the 

02/03/2016 report of Dr. Wunder that indicates that he 

found range of motion testing of the right shoulder was not 

valid and the subjective complaints far exceeded the 

objective findings. Therefore, the Staff Hearing Officer finds 

the Injured Worker has not sustained his burden in this 

regard and the application is also denied on this additional 

basis. 
No. 16AP-751 9 

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

commission mailed June 16, 2016. 

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

Conclusions of Law: 

{¶ 26} 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). 

{¶ 27} 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). 

{¶ 28} In this mandamus action, relator argues that the commission abused its 

discretion when it rejected the most recent psychological report prepared by Dr. Sed. In 

making this argument, relator argues the case of State ex rel. Kroger Co. v. Indus. Comm., 

80 Ohio St.3d 483 (1997). In that case, Wilma C. Williamson suffered a work-related 

injury and her workers' compensation claim was allowed for the psychological condition 

anxiety disorder with panic attacks. Williamson's treating physician attributed her 

symptoms to post-traumatic stress disorder, panic attacks, and dysthymia. Her employer 

argued that Williamson's doctor relied in part on non-allowed conditions; however, this 

court found that argument to be unpersuasive for the following reasons: 

Compensable disability must arise exclusively from the 

claim's allowed conditions. Fox v. Indus. Comm. (1955), 162 

Ohio St. 569, 55 Ohio Op. 472, 125 N.E.2d 1. Ideally, the 

diagnosis contained on a disability form should mirror 
No. 16AP-751 10 

exactly the condition(s) allowed by the commission and, 

where it does not, closer examination may be warranted. 

Some degree of flexibility, however, seems particularly 

important when dealing with psychiatric conditions. As the 

Washington Supreme Court observed: 

"Psychology and psychiatry are imprecise disciplines. Unlike 

the biological sciences, their methods of investigation are 

primarily subjective and most of their findings are not based 

on physically observable evidence." Tyson v. Tyson (1986), 

107 Wash.2d 72, 78, 727 P.2d 226, 229. 

Id. at 489-90. 

{¶ 29} Relator relies on the above quote to support his argument here. However, 

relator ignores this court's more thorough explanation, wherein this court stated: 

The reference to the nature of psychological diagnoses does 

not imply that these diagnoses are freely interchangeable. 

Clearly, major depression and paranoia are not the same 

and, in this case, all three disorders, PTSD, dysthymia, and 

anxiety disorder with panic attacks, are distinct. 

Nevertheless, we find that the multiple psychological 

diagnoses are not fatal to claimant's compensation 

application. There are three reasons for this. 

First, regardless of the label attached, Dr. Blythe consistently 

referred to the same symptoms as being the cause of 

disability. Second, many of the symptoms are common to all 

three maladies. This largely explains why Dr. Blythe has had 

difficulty categorizing the disorder. Finally, Dr. Blythe has 

always related the relevant symptomatology to the industrial 

accident. 

Cumulatively, this indicates that the debilitating symptoms 

are industrially related. This is not a situation in which 

diagnostic flexibility will allow a physician to surreptitiously 

treat a claimant for a nonindustrial ailment. The problem 

seems to rest solely on Dr. Blythe's understandable inability 

to affix a single diagnosis to symptoms that fit several 

categories. For these reasons, the commission's reliance on 

Dr. Blythe's reports is not an abuse of discretion, and the 

award of temporary total disability compensation from 

July 18, 1991 to January 1, 1994 is upheld. 

Id. at 490. 
No. 16AP-751 11 

{¶ 30} It is clear that this court's decision in Kroger was limited to situations where 

there are overlapping symptoms which are causing the disability and those symptoms are 

common to more than one diagnosis. As long as the treating physician consistently treats 

the relevant symptoms, this court noted that it is appropriate to accept some degree of 

flexibility when dealing with psychiatric conditions. 

{¶ 31} In the present case, Dr. Reynolds noted that relator had and was being 

treated for bipolar disorder. In reaching that conclusion, Dr. Reynolds noted that relator 

was taking certain medications which were prescribed for bipolar disorder. Specifically, 

Risperdal and Latuda are medications which are prescribed to treat bipolar disorder. It 

was Dr. Reynold's opinion that, when considering the effect of only relator's allowed 

psychological condition (substantial aggravation of pre-existing adjustment disorder with 

depressed mood), he had no functional limitations and could return to his former position 

of employment. Dr. Reynolds gave specific reasons for his opinion and provided a 

reasonable explanation. As such, it was not an abuse of discretion for the commission to 

rely on his report to deny relator's application for PTD compensation. 

{¶ 32} Furthermore, to the extent that relator asserts that the commission did not 

consider the report of Dr. Sed, there is no evidence in the SHO's order that would lead to 

this conclusion. It must be remembered that the commission is only required to identify 

the medical evidence on which it relies and is not required to cite all the evidence which it 

considers. State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991). State ex rel. 

Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481 (1983). As such, there was no 

requirement on the SHO to discuss the report of Dr. Sed, and relator's assertion to the 

contrary fails. 

{¶ 33} Based on the foregoing, it is this magistrate's decision that relator has not 

demonstrated that the commission abused its discretion when it denied his application 

for PTD compensation and this court should deny relator's request for a writ of 

mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA

 
No. 16AP-751 12 

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).