[Cite as State ex rel. Smith v. Thomas/Sysco Food Serv., 2014-Ohio-1641.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Marvin Smith, : 

 Relator, : 

 

v. : No. 13AP-37 

 

Thomas/Sysco Food Service and : (REGULAR CALENDAR) 

Industrial Commission of Ohio, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on April 17, 2014 

 

Casper & Casper, and Ronald M. Kabakoff, for relator. 

Michael DeWine, Attorney General, and Cheryl J. Nester, for 

respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

CONNOR, J. 

{¶ 1} Relator, Marvin Smith, brings this original action seeking a writ of 

mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to 

vacate its order denying him permanent total disability ("PTD") compensation, and to 

find that he is entitled to that 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 has now rendered a decision and 

recommendation that includes findings of fact and conclusions of law and is appended to 

this decision. The magistrate concluded that the commission did not abuse its discretion 

and recommended that this court not issue the requested writ of mandamus. Relator has 
No. 13AP-37 2 

filed objections to the magistrate's decision, and the matter is now before us for our 

independent review. 

{¶ 3} As reflected in the facts given in the magistrate's decision, claimant was 

involved in a work-related injury on May 3, 1990. Claimant's industrial claim has been 

allowed for the following conditions: lumbar sprain, aggravation of pre-existing 

degenerative disc disease, and bulging intervertebral at L5-S1. 

{¶ 4} Relator filed an application for PTD compensation on November 11, 2011. At 

the commission's request, Dr. Thomas Forte conducted a medical examination of relator 

on April 19, 2012. Dr. Forte concluded that relator was capable of performing sedentary 

work. 

{¶ 5} The application came before a staff hearing officer ("SHO") for a hearing on 

August 7, 2012. The SHO relied on the medical report of Dr. Forte to conclude that 

claimant was able to engage in sustained remunerative employment. Accordingly, the 

SHO denied the application for PTD compensation. 

{¶ 6} The magistrate determined that Dr. Forte's narrative report and physical 

strength rating form were not equivocal or inconsistent. The magistrate thus concluded 

that Dr. Forte's report and physical strength rating form were some evidence which the 

commission could rely on to deny relator's application for PTD compensation. Relator 

presents the following objections to the magistrate's decision: 

1. The Magistrate erred in finding that Dr. Forte's report was 

internally consistent. 

2. The Magistrate erred in finding that Dr. Forte's report 

constitutes some evidence to support the denial of PTD. 

{¶ 7} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the 

objected matters "to ascertain that the magistrate has properly determined the factual 

issues and appropriately applied the law." A relator seeking a writ of mandamus must 

establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon 

respondent to perform the act requested, and (3) that relator has no plain and adequate 

remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police & 

Firemen's Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting 

State ex rel. Consolidated Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear 
No. 13AP-37 3 

legal right exists where the [commission] abuses its discretion by entering an order which 

is not supported by 'some evidence.' " Id.

{¶ 8} This court will not determine that the commission abused its discretion 

when there is some evidence in the record to support the commission's finding. State ex 

rel. Rouch v. Eagle Tool & Mach. Co., 26 Ohio St.3d 197, 198 (1986). The some evidence 

standard "reflects the established principle that the commission is in the best position to 

determine the weight and credibility of the evidence and disputed facts." State ex rel. 

Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing State ex 

rel. Pavis v. Gen. Motors Corp., B.O.C. Group, 65 Ohio St.3d 30, 33 (1992). 

{¶ 9} The relevant inquiry in a determination of PTD is the claimant's ability to do 

any sustained remunerative employment. State ex rel. Domjacic v. Indus. Comm., 69 

Ohio St.3d 693 (1994); Ohio Adm.Code 4121-3-34(B)(1). An individual can engage in 

sustained remunerative employment if they can perform sedentary work. Sedentary work 

means "exerting up to ten pounds of force occasionally * * * and/or a negligible amount of 

force frequently * * * 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." Ohio Adm.Code 4121-3-34(B)(2)(a). 

{¶ 10} In his first objection, relator asserts that the magistrate erred by not finding 

that Dr. Forte's report was internally inconsistent. Equivocal or internally inconsistent 

medical reports do not constitute some evidence upon which the commission can rely. 

State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649 (1994); State ex rel. Lopez v. 

Indus. Comm., 69 Ohio St.3d 445 (1994); State ex rel. Paragon v. Indus. Comm., 5 Ohio 

St.3d 72 (1983). Equivocation "occurs 'when a doctor repudiates an earlier opinion, 

renders contradictory or uncertain opinions, or fails to clarify an ambiguous statement.' " 

State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 407, 2011-Ohio-6036, ¶ 15, 

quoting Eberhardt at 657. 

{¶ 11} Relator asserts that "Dr. Forte's report clearly states twice that further 

restrictions will be listed on the Physical Strength Rating Form," and notes that, if Dr. 

Forte "had actually listed restrictions it would have been highly relevant as to whether Mr. 

Smith had the capacity to return to work." (Objections to Magistrate's Decision, 5.) 

Relator appears to assert that, as Dr. Forte's report indicated that restrictions would be 
No. 13AP-37 4 

listed on the physical strength rating form, and the form did not list those restrictions, Dr. 

Forte's report is inconsistent. 

{¶ 12} The magistrate concluded that Dr. Forte did set forth limitations on the 

physical strength rating form, as Dr. Forte had checked the box indicating that relator was 

only capable of performing sedentary work. The physical strength rating form then 

provided the Ohio Adm.Code 4121-3-34(B)(2)(a) definition of sedentary work, indicating 

that the injured worker can only exert up to ten pounds of force and is restricted to sitting 

most of the time, but can walk or stand for brief periods of time. 

{¶ 13} Dr. Forte's report indicates that the sedentary work restrictions are 

necessary "based upon [relator's] limited and painful lumbar range of motion, right lower 

extremity weakness, and altered sensation." (Stip.R. 46.) Dr. Forte noted that relator 

arrived to his appointment "in a wheelchair" and that relator had indicated "that he 

utilized a wheelchair when he anticipated anything other than a very short distance 

walking." (Stip.R. 46.) Dr. Forte noted that relator was able to walk around the exam 

room by using "a cane or by holding onto furniture in the exam room." (Stip.R. 46.) There 

is nothing in Dr. Forte's report which contradicts the findings on the physical strength 

rating form or which is inconsistent with the limitations contained in the definition of 

sedentary work. Compare State ex rel. Ingersoll Rand Co. v. Indus. Comm., 10th Dist. 

No. 10AP-254, 2010-Ohio-5362, ¶ 3 (finding a report was internally inconsistent because 

the doctor's "statement that claimant was unemployable due to pain and severe neck 

limitations was in direct conflict with his earlier statement that claimant could perform 

sedentary work"). Accordingly, we find that Dr. Forte's report is not internally 

inconsistent. Relator's first objection is overruled. 

{¶ 14} Relator's second objection to the magistrate's decision asserts that Dr. 

Forte's report cannot be considered some evidence if it is found to be internally 

inconsistent. As we have found that Dr. Forte's report was not internally inconsistent, Dr. 

Forte's report was some evidence to support the denial of relator's application for PTD 

compensation. Accordingly, relator's second objection is overruled. 

{¶ 15} Following independent review, pursuant to Civ.R. 53, we find the magistrate 

has properly determined the pertinent facts and applied the salient law to them. 

Accordingly, we adopt the magistrate's decision as our own, including the findings of fact 
No. 13AP-37 5 

and conclusions of law contained therein. In accordance with the magistrate's decision, 

we deny the request for a writ of mandamus. 

Objections overruled;writ denied. 

 KLATT and O'GRADY, JJ., concur. 

_________________ 
No. 13AP-37 6 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Marvin Smith, : 

 Relator, : 

 No. 13AP-37 

v. : 

 (REGULAR CALENDAR) 

Thomas/Sysco Food Service 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 September 26, 2013 

 

Casper & Casper, and Ronald M. Kabakoff, for relator. 

Michael DeWine, Attorney General, and Naveen V. 

Ramprasad, for respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

{¶ 16} In this original action, relator, Marvin Smith, requests a writ of mandamus 

ordering respondent Industrial Commission of Ohio ("commission") to vacate its order 

denying him permanent total disability ("PTD") compensation, and to enter an order 

granting the compensation. 

Findings of Fact: 

{¶ 17} 1. On May 3, 1990, relator sustained an industrial injury while employed as 

a truck driver for respondent Thomas/Sysco Food Service, a state-fund employer. 

{¶ 18} 2. The industrial claim (No. 90-36219) is allowed for: "[l]umbar sprain; 

aggravation of pre-existing degenerative disc disease; bulging intervertebral at L5-S1." 
No. 13AP-37 7 

{¶ 19} 3. On November 11, 2011, relator filed an application for PTD 

compensation. 

{¶ 20} 4. On April 19, 2012, at the commission's request, relator was examined by 

Thomas E. Forte, D.O. In his six-page narrative report, Dr. Forte states: 

PHYSICAL EXAMINATION:

GENERAL: Mr. Smith was a pleasant, cooperative male who 

exhibited some overt pain behaviors, and sat or stood 

through the interview in some apparent distress with the 

need to change/adjust his position intermittently. The 

injured worker was accompanied by his wife who was 

present during the interview and examination. His height 

was 5 foot 10 inches, weight 206 pounds. Blood pressure 

161/85, pulse 80 and regular, respirations 16 and unlabored. 

He and his wife indicated they would check his blood 

pressure at home and communicate with his family physician 

regarding her [sic] blood pressure. 

LUMBAR SPINE: There was a flat lordosis of the lumbar 

spine. Palpation of the lumbar paraspinal muscles elicited 

moderate tenderness diffusely. There was both moderate 

guarding and mild spasm of the paraspinal musculature. 

Palpation of the lumbar spine elicited moderate tenderness 

at L4-sacrum. There were multiple well-healed surgical scars 

associated with lumbar surgeries, including a midline 7.5 cm 

scar and bilateral paralumbar 4 cm scars. There were no 

Waddell's signs present. The Patrick's (FABER) test was 

negative bilaterally[.] Sitting up from lying position was 

accomplished using abdominal muscles with a modified logroll maneuver. Footwear was put on and taken off by his 

wife. There was a level pelvis, without scoliosis, with no 

significant leg length difference. He reported pain with all 

lumbar motions throughout the range of motion. 

Lumbar Spine- Range of motion (in degrees): 

Flexion- true lumbar: 18, sacral flex= 15 [Impairment varies 

w/ scaral ROM] 

Extension- true lumbar: 0, sacral ext= 0 [Possible ROMbased impairment, if <23] 

Right side bending: 10 [Possible ROM-based impairment, if 

<23] 

Left side bending: 12 [Possible ROM-based impairment, if 

<23] 
No. 13AP-37 8 

The seated straight leg raising was accomplished to 65 

degrees bilaterally. The lying straight leg raising testing 

resulted in low back and ipsilateral posterior thigh pain at 35 

degrees on the right and low back pain at 40 degrees on the 

left. 

LOWER EXTREMITY NEUROLOGIC: The strength in the 

lower extremities was normal (5 out of 5) throughout the left 

lower extremity, but there was grade 4/5 weakness of right 

foot dorsiflexion and right knee extension, without a foot 

drop. There was no give-way weakness. Lower extremity 

sensation was intact to all modalities for the left lower 

extremity, but there was altered sharp/dull discrimination 

along the posterior aspect of the right thigh, the medial 

aspect of the right calf, the lateral aspect of the right foot, 

and the lateral 3 toes of the right foot. The patellar reflexes 

were 1+ on the right, and 2+ on the left. The ankle reflexes 

were absent on the right, and 1+ on the left. There was no 

atrophy in either of the thighs, but there was 0.7 cm of right 

calf atrophy. There were no observed involuntary 

movements. 

GAIT and STATION: The injured worker arrived in a 

wheelchair and indicated that he utilized a wheelchair when 

he anticipated anything other than very short distance 

walking. The gait and station were antalgic, with the injured 

worker leaning forward at the waist approximately 15 

degrees, and moving about the room holding onto various 

pieces of furniture and/or utilizing his cane. Walking was 

performed only with a cane or by holding onto furniture in 

the exam room. Walking on the heels and toes was not 

tested, due to his right lower extremity weakness and his 

antalgic gait pattern. The Romberg test was not tested. 

Transfer to the exam table was accomplished with moderate 

apparent difficulty. 

DISCUSSION: Marvin Smith has allowed conditions from 

a single claim being evaluated in this report. 

Mr. Smith has already undergone 2 lumbar surgeries, 

physical therapy, various injections, and the medication 

regimen has been optimized. The allowed physical 

conditions in the claims have stabilized to the point that no 

major medical change can be expected, despite any 

continuing medical treatment or rehabilitative programs in 

which the injured worker may participate. 
No. 13AP-37 9 

Based only on the allowed physical conditions evaluated in 

this report and not considering the worker's age, education, 

and work history, the worker's physical limitations are 

outlined in the PHYSICAL STRENGTH RATING FORM 

below. These lifting, standing, running, repetitive motion, 

and sitting limitations are necessary due to the allowed back 

conditions in the claim addressed in this report, and these 

limitations based upon his limited and painful lumbar range 

of motion, right lower extremity weakness, and altered 

sensation. 

OPINION: Based solely on today's history and physical 

examination, review of the records provided, and based only 

on the allowed conditions I have been asked to consider, and 

considering only the physical conditions allowed: 

[One] Has the injured worker reached maximum medical 

improvement (MMI) with regard to each specified allowed 

condition? Briefly describe the rationale for your opinion. 

Yes. Please refer to the narrative DISCUSSION: section 

above. The injured worker is on a stable medication regimen, 

has no pending invasive procedures, and is currently 

receiving supportive medical care for the allowed conditions 

in the claim. Therefore, he has reached maximum medical 

improvement for the allowed conditions in the claim. 

[Two] Based on the American Medical Association's Guides 

to the Evaluation of Permanent Impairment - 5th Edition, 

with reference to the Industrial Commission Medical 

Examination Manual, provide the estimated percentage of 

whole person impairment arising from each allowed 

condition. Please list each condition and whole person 

impairment separately, and then provide the combined 

whole person impairment. If there is no impairment, 

indicate zero percent. 

[A table is omitted.] 

The amount of pain was disproportionate for what is 

expected with the allowed conditions in the claim and their 

associated impairment as calculated above, so 3 percent 

additional impairment for pain was combined into the 

impairment rating. 
No. 13AP-37 10 

It is my opinion that the combined whole person impairment 

for the allowed physical conditions (which I have been asked 

to address in this report) in the claim(s) is the percentage in 

the bottom right corner of the table above. 

[Three] Complete the enclosed Physical Strength Rating 

form. In your narrative report provide a discussion setting 

forth physical limitations resulting from the allowed 

condition(s). 

The PHYSICAL STRENGTH RATING form is completed and 

enclosed. These lifting, standing, running, repetitive motion, 

and sitting limitations are necessary due to the allowed back 

conditions in the claim addressed in this report. Please refer 

to the narrative DISCUSSION: section above regarding the 

rationale for the physical limitations. 

(Emphasis sic.) 

{¶ 21} 5. On April 19, 2012, Dr. Forte completed a Physical Strength Rating form. 

On the form, Dr. Forte indicated by his mark that relator is capable of "Sedentary Work." 

 The form presents the definition of sedentary work: 

Sedentary work means 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 onethird 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. 

 Responding to the preprinted query "FURTHER limitations, if indicated," 

Dr. Forte wrote: "None. Please refer to the narrative DISCUSSION: section above 

regarding the rationale for the physical limitations." (Emphasis sic.) 

{¶ 22} 6. Following an August 7, 2012 hearing, a staff hearing officer ("SHO") 

issued an order denying relator's application for PTD compensation. The SHO's order 

explains: 
No. 13AP-37 11 

It is the order of the Hearing Officer that the Application for 

Permanent Total Disability, filed on 11/11/2011, is denied. 

The Injured Worker suffered the injury recognized in this 

claim on 05/03/1990 when he was employed with the named 

Employer as a transportation driver. On the date of injury, 

he was coming down a ramp with a two-wheeler when he 

slipped. At the time of the injury, the two-wheeler was 

loaded up with product. The claim was recognized initially 

for a sprain condition and was subsequently amended to 

include degenerative disc disease and a bulging disc at L5-S1. 

The Injured Worker underwent a surgical procedure 

consisting of a laminectomy in March of 1992. The Injured 

Worker was able to return to work for a different Employer 

working as a Delivery Driver. The allowed conditions in this 

claim are limited to conditions involving the Injured 

Worker's lumbar spine. 

The Injured Worker continued to work up until 2003. He 

had a subsequent injury involving his shoulder during his 

period of employment with his employer. The Injured 

Worker had a second surgical procedure in this claim on his 

low back area in 2009. That surgical procedure consisted of a 

discectomy and fusion at the L5-S1 area. The Injured Worker 

has not worked since that second surgical procedure. 

The Injured Worker was examined at the request of the 

Industrial Commission by Dr. Thomas Forte on 04/19/2012. 

Dr. Forte performed a physical examination of the Injured 

Worker and reviewed selected medical records for this claim 

file. 

He noted the two surgical procedures as well as the 

subsequent pain management treatment including 

medications, epidural injections, physical therapy. Dr. Forte 

stated that the Injured Worker was in a wheelchair on the 

date of the exam. The Injured Worker told Dr. Forte that he 

used a wheelchair when he was traveling anywhere that 

involved more than a very short distance of walking. He was 

able to get out of the wheelchair and walk using a cane 

during the examination. Dr. Forte stated that the Injured 

Worker has reached maximum medical improvement for the 

recognized conditions in the claim. He stated that the 

Injured Worker was stable in terms of his medication 

regimen and has no pending invasive procedures. Dr. Forte 

indicated that the Injured Worker has a 30% whole person 
No. 13AP-37 12 

impairment as a result of the allowed conditions in the claim. 

On a Physical Strength Rating form attached to his report, 

Dr. Forte stated that the Injured Worker was capable of 

performing sedentary work activity when considering the 

allowed conditions. 

Sedentary work is defined by the Industrial Commission as 

exerting up to ten pounds of force occasionally and/or a 

negligible amount of force frequently 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. Dr. Forte explained that the 

Injured Worker has these restrictions as the result of his 

limited and painful lumbar range of motion, his right lower 

extremity weakness and altered sensation. 

The Hearing Officer finds that the Injured Worker has 

reached maximum medical improvement for the allowed 

conditions in this claim. The Hearing Officer finds that the 

Injured Worker is unable to return to his former position of 

employment as a driver as the result of the allowed low back 

conditions. However, the Hearing Officer finds that the 

Injured Worker retains the residual functional capacity to 

perform sedentary work activity. In making this finding, the 

Hearing Officer relies upon the findings and the opinion 

from Dr. Forte. 

The Injured Worker's attorney argued that Dr. Forte's report 

was defective because he indicated that the Injured Worker's 

physical limitations would be set forth on a Physical Strength 

Rating form and then indicated on the Physical Strength 

Rating form that the narrative report would discuss the 

rationale for the physical limitations. The Injured Worker's 

attorney argued that Dr. Forte's opinion was unclear as to 

the Injured Worker's physical limitations. The Hearing 

Officer rejects this argument and finds that Dr. Forte sets 

forth the physical limitations by indicating that the Injured 

Worker can perform sedentary work activity. On the Physical 

Strength Rating form, he indicated that the narrative report 

would set forth the rationale for the noted physical 

limitations. The body of the report does contain Dr. Forte's 

opinion as to the basis for the sedentary work restrictions. 

The Hearing Officer finds that Dr. Forte's report is not 

defective. 
No. 13AP-37 13 

The Injured Worker is currently 60 years of age. He is a high 

school graduate having completed high school in 1971. 

Following his high school graduation, he attended Laurel 

Oaks truck driver training. He testified at hearing that he 

performed well in this training program. On the application, 

he indicated that he is able to read, write, and perform basic 

math. His previous work history involves approximately 30 

years of work as a truck driver. 

The Hearing Officer finds that the Injured Worker's age of 60 

years is a neutral vocational factor which would be neither a 

barrier nor an asset to him in attempting a return to the 

workforce. An extensive re-training program would not be 

appropriate for him, but he could undergo short-term, onthe-job training to learn a new job. The Hearing Officer finds 

that the Injured Worker's education level is a positive 

vocational factor. The Injured Worker is [a] high school 

graduate and did attend vocational training after his high 

school graduation. He is able to read, write, and perform 

basic math. The Hearing Officer finds that the Injured 

Worker has demonstrated the intellectual capacity to obtain 

his degree and pursue further training. The Hearing Officer 

finds that the Injured Worker's previous work history is a 

neutral vocational factor. The Injured Worker demonstrated 

a relatively long work history with several different 

employers. He worked only as a truck driver with varying 

degrees of required physical exertion besides the driving 

requirements. However, the Injured Worker demonstrated 

the determination and resourcefulness to return to work 

with a different employer following this injury and his first 

surgical procedure. The Injured Worker has not worked 

since 2003. However, the Hearing Officer finds that the 

reason he left the workforce in 2003 was not related to this 

industrial injury. 

Based upon the Injured Worker's ability to return to 

sedentary work activity and his education level as a high 

school graduate, the Hearing Officer finds that the Injured 

Worker is capable of performing the duties of sustained 

remunerative employment. Therefore, the Hearing Officer 

finds that the Injured Worker is not permanently and totally 

disabled. 

The Application for Permanent and Total disability, filed on 

11/11/2011 is hereby denied. 
No. 13AP-37 14 

This order is based upon the medical report from Dr. Forte 

dated 04/19/2012. 

{¶ 23} 7. On October 10, 2012, the three-member commission mailed an order 

denying relator's request for reconsideration. 

{¶ 24} 8. On January 14, 2013, relator, Marvin Smith, filed this mandamus action. 

Conclusions of Law: 

{¶ 25} The sole issue is whether the report of Dr. Forte is some evidence upon 

which the commission can rely to support its determination that "residual functional 

capacity" is at the sedentary level. Ohio Adm.Code 4121-3-34(B)(4). 

{¶ 26} Finding that Dr. Forte's report provides the some evidence supporting the 

commission's determination of residual functional capacity, it is the magistrate's decision 

that this court deny relator's request for a writ of mandamus, as more fully explained 

below. 

{¶ 27} Equivocal medical opinions are not evidence. State ex rel. Eberhardt v. 

Flxible Corp., 70 Ohio St.3d 649, 657 (1994). Equivocation occurs when a doctor 

repudiates an earlier opinion, renders contradictory or uncertain opinions or fails to 

clarify an ambiguous statement. Id. 

{¶ 28} A medical report can be so internally inconsistent that it cannot be some 

evidence upon which the commission can rely. State ex rel. Lopez v. Indus. Comm., 69 

Ohio St.3d 445 (1994); State ex rel. Taylor v. Indus. Comm., 71 Ohio St.3d 582 (1995). 

However, a court will not second-guess a doctor's medical expertise to support a claim of 

internal inconsistency. State ex rel. Young v. Indus. Comm., 79 Ohio St.3d 484 (1997).

{¶ 29} Here, relator argues that Dr. Forte's report is equivocal and internally 

inconsistent: 

Dr. Thomas Forte strongly implied that he was going to find 

additional restrictions as well. In the Physical Examination 

Section of his report, he noted problems with muscle spasm, 

restrictions on range of motion, positive straight leg raising, 

decrease in sensation in the right lower extremity, and 

difficulty walking. * * * In the Discussion Portion of his 

report, he mentioned two surgeries, found that the condition 

had stabilized, and then stated that the physical limitations 

would be outlined in the Physical Strength Rating Form 
No. 13AP-37 15 

below. "These lifting, standing, running, repetitive motion, 

and sitting limitations are necessary due to the allowed back 

conditions in the claim addressed in this report, and these 

limitations base upon his limited and painful lumbar range 

of motion, right lower extremity weakness, and altered 

sensation." 

At the end of his report, he stated that the rationale for the 

physical limitations were to be found in the Discussion 

Section of the report. * * * On the Physical Strength Rating 

form, he stated there were no limitations beyond sedentary 

work and the rationale was in the Discussion Section. * * * 

His report was like a circle, it kept going round and round, 

and there was no end to it. It was ambiguous and 

contradictory. 

(Relator's brief, at 10-11.) 

{¶ 30} Relator's argument lacks merit. There is no inconsistency or equivocation 

between Dr. Forte's narrative report and his completion of the physical strength rating 

form. 

{¶ 31} In the "Discussion" portion of the narrative report, Dr. Forte evaluates 

impairment and concludes that relator has a 30 percent whole person impairment. In the 

"Discussion" portion of the narrative report, Dr. Forte does note that the physical strength 

rating form sets forth the limitations due to the allowed conditions of the claim. Those 

limitations are set forth in the definition of sedentary work that Dr. Forte marked on the 

form. 

{¶ 32} It is true that, in his physical strength rating form, Dr. Forte refers the 

reader back to the "Discussion" section of the narrative report. 

{¶ 33} Clearly, the narrative report and the physical strength rating form are 

interrelated. It was thus appropriate for Dr. Forte to have each report reference the other. 

Regardless of the alleged circularity, there was no equivocation or internal inconsistency. 

Again, relator's argument lacks merit. 

{¶ 34} Accordingly, for all the above reasons, it is the magistrate's decision that this 

court deny relator's request for a writ of mandamus. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 
No. 13AP-37 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).