[Cite as State ex rel. Honda of Am. Mfg., Inc. v. Indus. Comm., 2017-Ohio-2627.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

State ex rel. Honda of America Mfg., Inc., : 

 

 Relator, : 

 

v. : No. 15AP-1064 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Patricia Dunn, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on May 2, 2017 

 

On brief: Vorys, Sater, Seymour and Pease LLP, and 

Robert A. Minor, for relator. 

On brief: Michael DeWine, Attorney General, and Patsy A. 

Thomas, for respondent, Industrial Commission of Ohio. 

On brief: Denise L. Devney, and Stephanie D. Horn, for 

respondent, Patricia Dunn. 

 

IN MANDAMUS 

ON OBJECTIONS TO MAGISTRATE'S DECISION 

BRUNNER, J. 

{¶ 1} Relator, Honda of America Mfg., Inc., ("Honda"), commenced this original 

action in mandamus seeking an order compelling respondent, Industrial Commission of 

Ohio ("the commission"), to vacate its order mailed May 16, 2015 awarding permanent 

total disability ("PTD") compensation to respondent, Patricia Dunn, and to deny Dunn's 

application for PTD compensation or, in the alternative, to conduct a new hearing on 

Dunn's application. 
2 

No. 15AP-1064 

{¶ 2} Pursuant to Civ.R. 53 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: (1) the 

commission did not abuse its discretion by relying on the medical reports of Dr. Urse and 

Dr. Hoover to find that Dunn was permanently and totally disabled based solely on the 

allowed conditions in her claim; and, (2) the commission did not abuse its discretion by 

awarding Dunn PTD compensation without consideration of the non-medical disability 

factors. Based on these findings, the magistrate decided that Honda's request for a writ of 

mandamus should be denied. 

{¶ 3} Honda timely filed objections to the magistrate's decision. Dunn and the 

commission timely filed their respective memoranda contra Honda's objections. Having 

examined the magistrate's decision, conducted an independent review of the record 

pursuant to Civ.R. 53, and undertaken due consideration of the objections, we overrule 

Honda's objections and adopt the magistrate's decision, including findings of fact and 

conclusions of law, as our own. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 4} It is undisputed that Honda employed Dunn as an assembly worker for 

approximately 21 years. During that time, Dunn sustained three work-related injuries to 

her right knee, cervical spine, and right shoulder and rotator cuff in the course of and 

arising out of that employment. It also is undisputed that all three claims were allowed, 

that Dunn had multiple surgeries related to her allowed conditions, and that she returned 

to work after each surgery. The record indicates that Dunn continued working until June 

2009, when she accepted a special voluntary separation opportunity offered by Honda. 

Dunn subsequently applied for and received social security disability benefits. 

{¶ 5} On May 5, 2014, Dunn filed an application for PTD compensation. Her 

application was supported by the October 18, 2013 medical report from her longtime 

attending physician, orthopedic surgeon, John Urse, D.O. Dr. Urse's report summarized 

Dunn's treatment history and examination findings. In his report, Dr. Urse opined that 

Dunn qualified for PTD based on the allowed knee, right shoulder and rotator cuff 

conditions, for which he did not expect dramatic improvement. He rated her prognosis as 

poor for sustained employment duties. At the time Dunn applied for PTD benefits, she 
3 

No. 15AP-1064 

was 56 years of age, had graduated from high school, and was able to read, write, and 

perform basic math. 

{¶ 6} At Honda's request, Dunn was examined by Douglas C. Gula, D.O. on 

June 27, 2014. In his report, Dr. Gula identified Dunn's allowed conditions, the history of 

Dunn's claims, identified the medical records he had reviewed, noted Dunn's recitation of 

her current symptoms, and provided findings of his physical examination of Dunn, 

including an occupational activity assessment. Dr. Gula opined that Dunn has a 41 

percent whole person impairment ("WPI") and that, based solely on the allowed 

conditions of her claims, is able to perform some sustained remunerative employment, 

subject to restrictions. 

{¶ 7} The commission then referred Dunn to James Hoover, M.D., physical 

medicine and rehabilitation specialist, for an independent medical examination. In his 

August 13, 2014 independent specialist report, Dr. Hoover identified Dunn's allowed 

conditions and the history of Dunn's claims, noted that he had Dr. Gula's June 27, 2014 

report for review, and that Dunn had brought to the examination her surgical history, 

which included bypass surgery and lumbar surgery and fusion. Dr. Hoover's report 

provided his findings of his physical examination of Dunn, including a physical strength 

rating. Dr. Hoover opined that Dunn has a 51 percent WPI, which he stated "is the final 

impairment rating for the allowed conditions," and is incapable of work. (Jan. 25, 2016 

Stipulation of Evidence at 111.) Dr. Hoover's report stated that his opinion was based on 

"today's history and physical examination, review of the records provided, and only the 

allowed conditions I have been asked to consider in this claim." Id. at 110. 

{¶ 8} On March 17, 2015, Honda deposed Dr. Hoover as to his conclusion that 

Dunn was incapable of sedentary work. Dr. Hoover maintained that he had only 

considered the allowed conditions in Dunn's claims when he opined that she has a 51 

percent WPI. Dr. Hoover testified that his examination of Dunn did not note that she had 

any limitation in the use of her upper left extremity, nor had he commented on any such 

limitation, because it was not part of the allowed conditions in the claim; he did not 

consider Dunn's upper left extremity other than as a comparison to the right. Dr. Hoover 

maintained his opinion that Dunn's physical limitations preclude her from substantial 

gainful employment. 
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No. 15AP-1064 

{¶ 9} A commission staff hearing officer ("SHO") heard Dunn's PTD application 

request on April 28, 2015. The SHO issued an order May 16, 2015 granting Dunn's 

application for PTD compensation. The SHO noted that Dunn had been awarded an 18 

percent permanent partial disability ("PPD") award under her knee injury claim, a 27 

percent PPD for the residuals of her cervical spine injury, and a 12 percent PPD award 

under her right shoulder claim. The SHO next discussed Dr. Urse's October 18, 2013 

medical report, in which he stated that Dunn had been under his care for her right knee 

and right shoulder complaints, but that he did not specifically treat her cervical spine 

conditions and so would not comment on those conditions. The SHO noted Dr. Urse's 

opinion that Dunn qualified for PTD based on the allowed conditions of the two claims for 

which he treated her, that he did not expect dramatic improvement in her condition, and 

that her prognosis for sustained employment duties was poor. The SHO found that 

Dr. Urse's opinion was corroborated by Dr. Hoover's independent specialist report, which 

also concluded that Dunn was incapable of work. 

{¶ 10} The SHO found the opinions of Drs. Urse and Hoover to be persuasive and 

relied on them to find that Dunn's medical impairments from the allowed conditions in 

her three claims prohibited her from returning to her former position of employment and 

from performing any sustained remunerative employment. Consequently, the SHO found 

Dunn to be permanently and totally disabled, without reference to the non-medical 

vocational factors listed in paragraph (B)(3) of Industrial Commission Rule 4121-3-

34(D)(2)(a). The SHO ordered that Dunn be granted an award of PTD compensation 

pursuant to R.C. 4123.58(A) commencing October 18, 2013, based on Dr. Urse's report of 

that date. The SHO further ordered that the award be apportioned among Dunn's allowed 

conditions in each claim, based on the WPI outlined in Dr. Hoover's report. 

{¶ 11} On May 29, 2015, Honda requested reconsideration of the SHO's order. By 

order mailed June 23, 2015, the commission denied Honda's request. Honda thereafter 

commenced this action in mandamus. 

II. OBJECTIONS TO THE MAGISTRATE'S DECISION 

{¶ 12} Honda has not presented a specifically identified objection to the 

magistrate's decision, but restates four arguments it presented in its merit brief and oral 

argument, all of which the magistrate considered and rejected: 
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No. 15AP-1064 

Relator respectfully submits that the Commission abused its 

discretion when it awarded [permanent total disability] 

compensation to [Dunn] for four essential reasons. First, the 

evidence in the record did not support the Commission's 

conclusion that Ms. Dunn was permanently and totally 

disabled from a medical perspective. Second, the Commission 

failed to conduct an analysis of the non-medical disability 

factors where the evidence demonstrated that Ms. Dunn was 

capable of sustained remunerative employment. Third, the 

staff hearing officer improperly relied upon the report of a 

physician, Dr. Urse, because the report was defective as a 

matter of law. Fourth, the Commission abused its discretion 

where there was no evidence that Ms. Dunn participated in 

vocational rehabilitation services or made any other efforts to 

better her situation. 

(June 29, 2016 Honda's Objs. to the Mag. Decision at 1-2.) 

III. LAW AND DISCUSSION 

{¶ 13} To be entitled to relief in mandamus, Honda must establish that it has a 

clear legal right to relief 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), paragraph nine of 

the syllabus. To do so, Honda must demonstrate that the commission abused its 

discretion, and "in this context, abuse of discretion has been repeatedly defined as a 

showing that the commission's decision was rendered without some evidence to support 

it." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20 (1987). 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). Honda must show that the commission's decision 

is not supported by some evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 

Ohio St.3d 76 (1986). Questions of credibility and the weight to be given evidence are 

clearly within the discretion of the commission as the fact finder. State ex rel. Teece v. 

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

{¶ 14} The magistrate identifies Dunn's ability to do any sustained remunerative 

employment as the relevant inquiry in this matter. State ex rel. Domjancic v. Indus. 

Comm., 69 Ohio St.3d 693 (1994). The magistrate consistently reviews the facts and 

arguments in this case according to analysis required by Ohio Adm.Code 4123-3-

34(D)(2)(a): 
6 

No. 15AP-1064 

If, after hearing, the adjudicator finds that the medical 

impairment resulting from the allowed condition(s) in the 

claim(s) prohibits the injured worker's return to the former 

position of employment as well as prohibits the injured 

worker from performing any sustained remunerative 

employment, the injured worker shall be found to be 

permanently and totally disabled, without reference to the 

vocational factors listed in paragraph (B)(3) of this rule. 

Id.; App'x. at ¶ 57. 

{¶ 15} In its first argument, Honda contends the commission abused its discretion 

in awarding Dunn PTD compensation because she is not permanently and totally 

disabled. Honda asserts that there is no evidence that Dunn's upper left extremity is 

impaired or that she is unable to work with that extremity and, further, that the doctors 

on whose reports the commission relied in awarding PTD did not find any impairment or 

limitation regarding Dunn's use of her left arm. Honda points to the report of its 

vocational specialist, containing the conclusion that Dunn is capable of engaging in 

sustained remunerative employment. Honda accuses the commission of not bothering 

itself with analyzing what capabilities Dunn retained. We disagree. 

{¶ 16} The commission found that Dunn's allowed conditions arising from her 

three industrial injuries prevent her from performing sustained remunerative 

employment. The commission's decision was based on the medical reports of Drs. Urse 

and Hoover. Therefore, the commission's award of PTD benefits to Dunn is supported by 

some evidence. 

{¶ 17} The magistrate's decision includes a discussion of Ohio Adm.Code 4121-3-

34, pertaining to PTD. The magistrate notes that Ohio Adm.Code 4121-3-34(C) 

specifically provides for the processing of PTD applications, including the requirements 

that: (1) each application must identify or be accompanied by medical evidence from a 

physician that supports the application; (2) the medical evidence must be based on a 

medical examination performed within the 24 months before the application is filed; and, 

(3) the medical evidence provides an opinion that addresses the injured worker's physical 

limitations resulting from the allowed conditions in the claim(s). 

{¶ 18} Honda's insistence that the commission failed to consider Dunn's ability to 

use her upper left extremity is inapposite. The governing rule limits the scope of medical 

evidence to allowed conditions. Because no claim had been allowed as to Dunn's upper 
7 

No. 15AP-1064 

left extremity, it was not permissible for the commission to consider any limitations or 

lack of limitations concerning that extremity. 

{¶ 19} The magistrate appropriately determined that the commission did not 

abuse its discretion by finding persuasive the reports of Dr. Urse and Dr. Hoover, which 

provided opinions "concerning the degree of impairment resulting from the allowed 

conditions in [Dunn's] claim." (App'x at ¶ 53.) Those opinions were based on medical 

factors and are in full compliance with the relevant law. Doctors who perform 

examinations for workers' compensation claimants are required to examine and provide 

findings and conclusions based solely on the allowed conditions in a claim, and nonallowed conditions can neither advance nor defeat a claim. See State ex rel. Waddle v. 

Indus. Comm., 67 Ohio St.3d 452 (1993). 

{¶ 20} In its second argument, Honda contends that the commission failed to 

conduct an analysis of the non-medical disability factors where the evidence 

demonstrated that Dunn was capable of sustained remunerative employment. We 

disagree. 

{¶ 21} The magistrate correctly applied Ohio Adm.Code 4123-3-34(D)(2)(a) to find 

that the commission is not obligated to conduct an analysis of Dunn's non-medical 

factors, stating that "[t]he medical evidence on which the commission relied supports the 

conclusion that Dunn was permanently and totally disabled based solely on the allowed 

conditions in her claims," and that "the commission was not required to discuss the nonmedical disability factors." (App'x at ¶ 57.) A medical opinion reliant on non-medical 

factors cannot be considered "some evidence" on which the commission could rely. State 

ex rel. Poneris v. Indus. Comm., 10th Dist. No. 02AP-712, 2003-Ohio-2184, ¶ 50. 

{¶ 22} Honda in its third argument states that the SHO improperly relied upon Dr. 

Urse's medical report in that "the report was defective as a matter of law." (Honda's Objs. 

to the Mag. Decision at 1.) But Honda failed to offer support for this claim in its brief or 

reply brief. We are left to refer back to Honda's complaint for the requested writ, in which 

Honda stated that Dr. Urse's report "was conclusory, did not offer any scientific or 

medical analysis of the effect of the impairments on [Dunn], and stated only that [Dunn] 

had a 'poor' 'prognosis' for 'sustained employment duties.' " (Nov. 20, 2015 Compl. for 

Writ of Mandamus at ¶ 14.) 
8 

No. 15AP-1064 

{¶ 23} The magistrate considered and rejected Honda's argument, specifically 

finding that Dr. Urse's report meets the requirements of Ohio Adm.Code 4123-3-34(C)(1). 

The magistrate noted in the decision that Dr. Urse was Dunn's treating physician for 

many years and set forth in the decision detailed findings of Dr. Urse's reports upon 

which the commission relied. The magistrate found that "the fact that [Dr. Urse] did not 

summarize all of his office notes in his October 18, 2013 report, does not render his report 

lacking." (App'x at ¶ 50.) 

{¶ 24} Honda's fourth argument claims that the commission abused its discretion 

because there was no evidence that Dunn participated in vocational rehabilitation services 

or made any other efforts to better her situation. 

{¶ 25} The magistrate appropriately applied the provisions of Ohio Adm.Code 

4121-3-34(D)(2)(a) to address Honda's fourth argument. Any question as to whether, or 

to what extent, Dunn participated in vocational rehabilitative services or made any other 

efforts to better her situation is immaterial, given that her medical impairment arising 

from her allowed conditions render her permanently and totally disabled. 

{¶ 26} The medical reports of Dr. Urse and Dr. Hoover are "some evidence" on 

which the commission properly relied in finding that Dunn's allowed conditions 

precluded her from engaging in sustained remunerative employment. The magistrate 

correctly concluded that the commission was not required to consider non-disability 

factors. Consequently, the magistrate did not err in recommending that Honda's request 

for a writ of mandamus be denied. 

IV. CONCLUSION 

{¶ 27} Following an independent review of this matter and giving due 

consideration of Honda's objection, we find the magistrate properly determined the 

salient facts and applied the appropriate law. Therefore, we adopt the magistrate's 

decision as our own, including the findings of facts and conclusions of law therein. In 

accordance with the magistrate's decision, we deny the requested writ of mandamus. 

Objections overruled; 

writ of mandamus denied. 

DORRIAN and LUPER SCHUSTER , JJ., concur. 

___________________ 

 
9 

No. 15AP-1064 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

State ex rel. Honda of America Mfg., Inc., : 

 

 Relator, : 

 

v. : No. 15AP-1064 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Patricia Dunn, 

 : 

 Respondents. 

 : 

 

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

Rendered on June 15, 2016 

 

Vorys, Sater, Seymour and Pease LLP, and Robert A. Minor, 

for relator. 

Michael DeWine, Attorney General, and Patsy A. Thomas, for 

respondent Industrial Commission of Ohio. 

Denise L. Devney, and Stephanie D. Horn, for respondent 

Patricia Dunn. 

 

IN MANDAMUS 

{¶ 28} Relator, Honda of America, Mfg., Inc., has filed this original action 

requesting that this court issue a writ of mandamus ordering respondent, Industrial 

Commission of Ohio ("commission"), to vacate its order awarding permanent total disability 

("PTD") compensation to respondent, Patricia Dunn, and ordering the commission to deny 

her application or, in the alternative, ordering the commission to conduct a new hearing 

on her application. 
10 

No. 15AP-1064 

Findings of Fact:

{¶ 29} 1. Dunn has sustained three work-related injuries during the course of her 

employment with relator and those claims have been allowed for the following conditions: 

97-635509: Tear of medial meniscus right knee; aggravation 

of pre-existing chondromalacia of the right knee; aggravation 

of pre-existing osteoarthritis of the right knee. 

00-498385: herniated disc, C6-7; aggravation of pre-existing 

spondylitic spur, C5-6, with cervical radiculopathy. 

04-868188: Right lateral epicondylitis; right shoulder strain; 

right rotator cuff tendinitis; acromioclavicular joint arthritis; 

acromioclavicular joint impingement, right shoulder; rotator 

cuff tear, right shoulder. 

{¶ 30} 2. Dunn has had multiple surgeries related to her allowed conditions and 

was able to continue working until June 2009 when she accepted a special voluntary 

separation opportunity offered by relator. 

{¶ 31} 3. Dunn filed her application for PTD compensation on May 5, 2014. At the 

time, she was 56 years of age, indicated that she had applied for Social Security 

retirement, graduated from high school, and was able to read, write, and perform basic 

math. 

{¶ 32} 4. Dunn's application was supported by a report from her treating 

physician, John S. Urse, D.O. In his October 18, 2013 report, Dr. Urse summarized 

Dunn's situation as follows: 

I have treated her with cortisone injections in the shoulder in 

an attempt to decrease her shoulder pain. She has noted 

history of her right knee giving out on her causing injury to 

the right eye, right fifth digit, and striking her forehead. She 

had some stitches in the forehead as a result of this fall. I 

spoke with her at that time about filing for disability and told 

her I would be in agreement with this option secondary to 

her surgical history and ongoing complaints involving the 

shoulder and knee. I have noted decreased external ROM in 

the shoulder. Discussion was held with Patricia regarding a 

possible bone scan to see if the knee implants were wearing 

down. She continued to have giving way and popping in the 

knee along with the limited ROM. Patricia is taking Celebrex, 

Ultram, Flexeril, and using Lidoderm patches for pain 
11 

No. 15AP-1064 

control. At her July 2013 visit she was noted to have 

decreased ROM of the shoulder, a positive two-finger test, 

positive NEER test, positive Hawkins test, and dramatic 

weakness on abduction against resistance. We recommended 

replacement of her knee brace secondary to the brace not 

fitting properly. These findings have not changed to date. 

She is receiving steroid injections for the shoulder. 

 In conclusion, Dr. Urse stated: 

It is my opinion she qualifies for permanent total disability 

based on the allowed conditions of the claims #04-868188 

and #97-635509. I do not expect dramatic improvement in 

her condition and would rate her prognosis as poor for 

sustained employment duties. 

{¶ 33} 5. At relator's request, Dunn was examined by Douglas C. Gula, D.O. In his 

June 27, 2014 report, Dr. Gula identified the allowed conditions in relator's claims, 

reviewed the history of those claims, identified the medical records which he reviewed, 

noted Dunn's current symptoms, and provided his physical findings upon examination. 

Thereafter, Dr. Gula opined that Dunn has a 41 percent whole person impairment and 

opined that based solely on the allowed conditions in her claims, Dunn was able to 

perform some sustained remunerative employment with the following restrictions: 

As related to the right knee conditions in Claim #97-635509, 

she has the following restrictions: Standing would be limited 

to 5-10 minutes per hour; walking is limited [sic] smooth 

surfaces, with minimal climbing stairs, no climbing ladders 

or hills, and no activities requiring balance; she should not 

perform activities requiring applying strength against 

bending, and no squatting, kneeling, crouching, stooping, or 

pedaling. In addition, she may require use of a knee brace 

and should be allowed to change positions for comfort and 

be provided breaks of 10-15 minutes at a frequency of once 

every 2 hours. 

As related to Claim #00-498385, noting Ms. Dunn is status 

post anterior cervical discectomy with fusion, the claimant is 

capable of the following activities: No lifting over the 

shoulder; lifting to the level of the shoulder not more than 5 

pounds; no extremes of motion including extension or 

flexion; no extremes of twisting or lateral movement; no 

climbing ladders; driving a car up to only 2 hours per day. 

Again, I feel Ms. Dunn should be allowed to change positions 
12 

No. 15AP-1064 

for comfort and be provided breaks of 10-15 minutes at a 

frequency of once every 2 hours. 

Based upon the conditions in Claim #04-868188, it is my 

opinion Ms. Dunn requires the following restrictions: No 

overhead lifting; she is capable of reaching to waist and 

shoulder level but not more than 12 times per hour with a 

maximum of 10 pounds of weight; she should not hold the 

right arm in abduction or flexion continuously; pushing and 

pulling should be limited to 10 pounds or less.1

{¶ 34} 6. The commission referred Dunn to James B. Hoover, M.D., for an 

independent medical examination. In his August 13, 2014 report, Dr. Hoover identified 

the allowed conditions in Dunn's claims and discussed the history of those claims 

specifically noting not only the surgeries she had related to the allowed conditions in her 

claims, but also noting that she had undergone lumbar surgery and fusion, as well as 

bypass surgery. Dr. Hoover's findings include: 

Inspection: 

She has cervical paraspinal tightness, more right than left. 

She has tightness in the upper trapezius, more on the right. 

She has no swelling or deformity at the shoulder. There is no 

deformity of the knee. There is a well healed anterior surgical 

scar of the knee. There is medial and lateral joint tenderness 

to a mild degree on the right. No swelling or deformity at the 

right elbow or tenderness. 

Range of motion: 

Cervical flexion is 30; extension and side bending are 20. 

Left rotation is 30, right rotation is 60. The right shoulder 

flexion is 30, extension 20, abduction 80, adduction 20, 

internal rotation 50, external rotation 60. She has full 

motion of the left shoulder. The right knee extends to 0 and 

flexes to at least 125. Left knee extends to 0 and flexes to 140. 

Right elbow flexion is 140, extension 0, pronation and 

supination are 80. 

{¶ 35} Dr. Hoover opined that Dunn had a 51 percent whole person impairment 

due to the allowed conditions and noted the following restrictions: 

Because of the knee problems there would be no crawling, 

climbing, squatting, or kneeling. She can be on her feet for 10 

to 15 minutes at one time, no more than two hours per eight-

 

1 Dr. Gula's limitations pertain solely to her ability to use her right upper extremity. 
13 

No. 15AP-1064 

hour day. Because of the right shoulder problems, this limits 

her lifting to no more than 5 lbs. with her right upper 

extremity, with no overhead activities, and no pushing or 

pulling. 

{¶ 36} Thereafter, Dr. Hoover concluded that Dunn was incapable of work. 

{¶ 37} 7. Relator filed a motion to take the deposition of Dr. Hoover arguing that 

the limitations he noted would permit Dunn to actually perform at a sedentary work level. 

{¶ 38} 8. The deposition of Dr. Hoover took place on March 17, 2015. Counsel first 

asked Dr. Hoover if he reviewed any medical evidence other than what he noted in his 

report (the report of Dr. Gula and a surgical history brought to the examination by Dunn). 

Dr. Hoover responded that it was his general practice to only list those records which were 

available for him to review. 

{¶ 39} Counsel asked Dr. Hoover why he noted that Dunn had full range of motion 

of her left shoulder when her claim was allowed for injury to her right shoulder. Dr. 

Hoover responded that he mentioned the left shoulder as a comparison to the limitations 

Dunn had with her right shoulder. Dr. Hoover maintained that he only considered the 

allowed conditions in Dunn's claims when he opined that she had a 51 percent whole 

person impairment, was capable of performing less than sedentary work activities and 

that, in his opinion, she was incapable of working. 

{¶ 40} 9. Relator submitted an employability assessment prepared by Craig 

Johnston, Ph.D., CRC. In his April 1, 2015 report, Johnston concluded that Dunn's 

combined age, education and work history, along with her ability to perform sedentary 

employment, would permit her to return to sustained remunerative employment. 

{¶ 41} 10. William T. Cody, MS, performed a vocational assessment at the request 

of Dunn's counsel. In his April 14, 2015 report, Cody began with the presumption that 

Dunn was capable of sedentary activities. Despite that assumption, Cody opined that 

there were no unskilled or even semi-skilled sedentary jobs which can be performed with 

one hand or only occasional reaching. Cody stated that only highly skilled sedentary work 

would accommodate Dunn's ability to utilize only one arm and concluded that she did not 

have the skills that would allow her the opportunity to perform that type of work. As 

such, considering her allowed injuries, age, education, restricted work history and 
14 

No. 15AP-1064 

physical limitations, Cody concluded that Dunn was not capable of performing sustained 

remunerative employment. 

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

hearing officer ("SHO") on April 28, 2015. The SHO relied on the medical reports of Drs. 

Urse and Hoover, specifically noting that, despite repeated questioning by relator's legal 

counsel, Dr. Hoover maintained that his opinion was based solely on the allowed 

conditions in the claims. Finding that she was permanently and totally disabled from a 

medical standpoint, the SHO did not need to and did not discuss the non-medical 

disability factors. 

{¶ 43} 12. Relator filed a request for reconsideration which was denied by order of 

the commission mailed June 23, 2015. 

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

Conclusions of Law:

{¶ 45} 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). 

{¶ 46} 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). 
15 

No. 15AP-1064 

{¶ 47} The relevant inquiry in a determination of permanent total disability is 

Dunn'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). 

{¶ 48} Relator argues that the commission abused its discretion by finding that 

Dunn was permanently and totally disabled based solely on the medical evidence 

presented. Relator asserts that there is no competent, credible medical evidence to 

support a finding that Dunn is incapable of performing some sustained remunerative 

employment. Relator argues that the medical evidence supports a finding that Dunn is 

capable of work at a sedentary level and, as such, the commission abused its discretion by 

not discussing the non-medical disability factors. 

{¶ 49} Ohio Adm.Code 4121-3-34 pertains to permanent total disability. Ohio 

Adm.Code 4121-3-34(C) specifically provides for the processing of applications for 

permanent total disability. Subsection one sets forth the requirements for an application: 

Each application for permanent total disability shall identify, 

if already on file, or be accompanied by medical evidence 

from a physician, * * * that supports an application for 

permanent total disability compensation. The medical 

examination upon which the report is based must be 

performed within twenty-four months prior to the date of 

filing of the application for permanent total disability 

compensation. The medical evidence used to support an 

application for permanent total disability compensation is to 

provide an opinion that addresses the injured worker's 

physical * * * limitations resulting from the allowed 

conditions in the claim(s). 

{¶ 50} The commission relied exclusively on the medical reports of Drs. Urse and 

Hoover. Relator challenges the report of Dr. Urse arguing that he did not discuss Dunn's 

physical limitations arising from the allowed conditions. Dr. Urse has been Dunn's 
16 

No. 15AP-1064 

treating physician for a number of years and is well acquainted with her conditions and 

the difficulty she has had since the dates of her injuries, subsequent surgeries, and 

rehabilitation efforts. In his October 18, 2013 report, Dr. Urse explained that both Dunn's 

knee and shoulder continue to cause her pain and other difficulties. Specifically, Dunn's 

knee has given out several times and has caused her to fall. Dr. Urse discussed a bone 

scan to see if the knee implants were wearing down. Dr. Urse knew that Dunn underwent 

diagnostic and surgical arthroscopy of her right knee with shaving of the patella and 

trochlea in 1997, as well as a total right knee replacement and patellar replacement in 

1999. Thirteen years later, Dr. Urse was concerned that the knee implants were wearing 

down. With regard to her shoulder, Dr. Urse noted that she had decreased range of 

motion, dramatic weakness on abduction against resistance, and the testing he 

administered was positive for shoulder impingement. Dr. Urse was aware that Dunn 

underwent arthroscopic debridement of right shoulder cuff tendinitis in 2005 and would 

have been aware that one year later, in 2006, Dunn began experiencing numbness into 

the fingertips of her right hand and pain. Dr. Urse was aware that Dunn underwent 

diagnostic and surgical arthroscopy of her right shoulder with rotator cuff repair, 

subacromial decompression, ligament resection, and partial acromioplasty in 2007. In 

his October 18, 2013 report, Dr. Urse indicated that he continues to give Dunn steroid 

injections because of pain she experiences in her shoulder. The fact that Dr. Urse did not 

reiterate everything he already knew about Dunn's knee and shoulder, the procedures she 

had undergone and her recovery, and the fact that he did not summarize all of his office 

notes in his October 18, 2013 report, does not render his report lacking. Instead, the 

magistrate finds that it does meet the requirements of Ohio Adm.Code 4123-3-34(C)(1), 

and the magistrate rejects relator's argument. 

{¶ 51} Dr. Hoover did include his physical findings on examination in his 

August 13, 2014 report. Further, relator had the opportunity to depose Dr. Hoover who 

maintained that his conclusion that Dunn was unable to perform any sustained 

remunerative employment was based solely on the allowed conditions in her claims. As 

such, Dr. Hoover's report also meets the requirements of Ohio Adm.Code 4123-3-

34(C)(1). 
17 

No. 15AP-1064 

{¶ 52} At oral argument, counsel for relator clarified its argument and reason for 

deposing Dr. Hoover. Counsel postulated that Dunn is capable of performing some 

sustained remunerative employment by utilizing her left upper extremity. Counsel 

pointed out that Dr. Gula noted that Dunn had no limitations in her ability to use her left 

upper extremity while Drs. Urse and Hoover did not discuss her ability to use her left 

upper extremity. Counsel asserted that many people are capable of performing onehanded work, most notably: (1) Robert Dole, who served as a senator for the State of 

Kansas and ran for president of the United States of America in 1996; (2) Pete Gray, who 

lost his right arm just above the elbow when he was six years old yet played outfielder for 

several years in the minor league and one year in the major league; and (3) Bethany 

Hamilton, the young woman who lost her arm in a shark attack yet competes in surfing 

events. 

{¶ 53} Physicians are required to examine injured workers and provide an opinion 

concerning the degree of impairment resulting from the allowed conditions in a claim. 

Both Drs. Urse and Hoover did so. However, counsel asserts that, while Dunn might be 

limited due to the allowed conditions in her knee and right arm, the commission must 

determine whether or not she could, nevertheless, perform some sustained remunerative 

employment using her left hand and upper extremity. 

{¶ 54} The magistrate acknowledges that certain work can be performed with one 

hand/arm. Further, the commission could make the determination that an injured 

worker is capable of performing some sustained remunerative employment with one 

hand/arm. However, doctors who perform examinations for workers' compensation 

claimants are required to examine and provide findings and conclusions based solely on 

the allowed conditions in a claim, and non-allowed conditions can neither advance nor 

defeat a claim. See State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). 

When doctors discuss non-involved body parts and/or non-allowed conditions, their 

reports are routinely challenged. Counsel explained however that a doctor should 

continue to base their opinions on impairment to the allowed body part/allowed 

conditions, but the commission should then consider a claimant's ability to utilize noninjured body parts and determine whether or not the claimant is capable of working 

irrespective of the limitations caused by the allowed conditions in their claim. 
18 

No. 15AP-1064 

{¶ 55} At the time the commission considered Dunn's application, she had 

significant limitations in her neck, right shoulder, and right knee, all resulting from 20 

plus years of assembly line-type work. She was receiving steroid injections because of the 

pain in her shoulder. The problems she was having with her knee led her doctor to 

question whether her knee implants were failing. She reports pain in both her shoulder 

and knee between 7 to 9 on a scale of 1 to 10. She had difficulty driving. Exam findings by 

all physicians, including Dr. Gula who examined Dunn at relator's request were not 

normal. The degree of impairment noted by both Drs. Hoover and Gula is significant. Dr. 

Hoover opined that Dunn had a 51 percent whole person impairment and could not 

perform sustained remunerative employment, and Dr. Gula found a 41 percent whole 

person impairment and concluded Dunn could perform sedentary employment. 

{¶ 56} To the extent that relator asserts that Dunn has no impairment of her left 

upper extremity, the magistrate disagrees. Dr. Gula specifically stated, concerning Dunn's 

shoulders, that "[w]eakness is present in her upper extremities with the right being 

greater than the left" and that Dunn "denies any difficulties as related to the left 

shoulder." So, even if relator's argument is given any credence, although she expressed no 

difficulties using her left shoulder for activities of daily living, Dunn does experience 

weakness in that shoulder. To the extent that Dr. Gula specifically noted limitations of 

Dunn's right upper extremity and not her left, it would have been improper for him to 

have noted restrictions of her left upper extremity. Doctors who examine claimants in 

workers' compensation cases are to report on and base their opinions on the allowed 

conditions in a claim. As such, not even Dr. Gula's report supports relator's assertion that 

Dunn has "no impairment with respect to the use of her left upper extremity." 

{¶ 57} Because the medical evidence on which the commission relied supports the 

conclusion that Dunn was permanently and totally disabled based solely on the allowed 

conditions in her claims, the commission was not required to discuss the non-medical 

disability factors. Ohio Adm.Code 4123-3-34(D)(2)(a) specifically provides: 

If, after hearing, the adjudicator finds that the medical 

impairment resulting from the allowed condition(s) in the 

claim(s) prohibits the injured worker's return to the former 

position of employment as well as prohibits the injured 

worker from performing any sustained remunerative 

employment, the injured worker shall be found to be 
19 

No. 15AP-1064 

permanently and totally disabled, without reference to the 

vocational factors listed in paragraph (B)(3) of this rule. 

{¶ 58} Finding that the commission did not abuse its discretion by relying on the 

medical reports of Drs. Urse and Hoover to find that Dunn was permanently and totally 

disabled based solely on the allowed conditions in her claims, the magistrate finds that the 

commission did not abuse its discretion by awarding her permanent total disability 

compensation without consideration of the non-medical disability factors. As such, this 

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

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court's adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically objects 

to that factual finding or legal conclusion as required by Civ.R. 

53(D)(3)(b).