[Cite as State ex rel. Navistar, Inc. v. Indus. Comm. & Bisdorf, 2018-Ohio-3386.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Navistar, Inc., : 

 

 Relator, : 

 

v. : No. 16AP-776 

 

The Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

Gary E. Bisdorf, : 

 

 Respondents. : 

 

D E C I S I O N 

Rendered on August 23, 2018 

 

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

Corrine S. Carman, for relator. 

On brief: Michael DeWine, Attorney General, and Kevin J. 

Reis, for respondent Industrial Commission of Ohio. Argued: 

Kevin J. Reis.

On brief: Stanley R. Jurus Law Office, and Michael J. 

Muldoon, for respondent Gary E. Bisdorf. Argued: 

Michael J. Muldoon.

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

LUPER SCHUSTER, J. 

{¶ 1} Relator, Navistar, Inc. ("Navistar"), initiated this original action requesting 

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

("commission"), to vacate the May 10, 2016 order of its staff hearing officer ("SHO") 

awarding respondent, Gary E. Bisdorf, compensation for permanent total disability 

("PTD"), and to enter an order denying the requested compensation.
No. 16AP-776 2 

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

and Loc.R. 13(M) of the Tenth District Court of Appeals. In June 2017, the magistrate 

recommended this court issue a writ of mandamus ordering the commission to vacate the 

May 10, 2016 order of its SHO awarding PTD compensation, and to enter an order that 

determines whether Bisdorf voluntarily abandoned the workforce. In December 2017, this 

court adopted the magistrate's findings of fact but rejected his conclusions of law. State ex 

rel. Navistar, Inc. v. Indus. Comm., 10th Dist. No. 16AP-776, 2017-Ohio-8976. This court 

denied Navistar's request for a writ of mandamus on the voluntary abandonment issue and 

remanded the matter to the magistrate to rule on the remainder of Navistar's complaint. 

Id. 

{¶ 3} In March 2018, the magistrate issued his second decision in this matter, 

identifying the central issue presented as whether the reports of Drs. James H. Rutherford 

and David M. Grunstein constituted some evidence on which the commission relied in 

determining residual functional capacity. The magistrate found that the reports of these 

two doctors separately provide some evidence that the allowed conditions prohibit all 

sustained remunerative employment. The magistrate thus concluded the commission's 

granting of PTD compensation was not an abuse of discretion.

{¶ 4} Navistar has filed three objections to the magistrate's second decision. First, 

Navistar argues that Dr. Rutherford's opinion regarding Bisdorf's residual functional 

capacity is not some evidence because his reports are contradictory and conclusory. 

Second, Navistar contends the magistrate erroneously applied State ex rel. Bonnlander v. 

Hamon, 150 Ohio St.3d 567, 2017-Ohio-4003, in his analysis of whether Dr. Grunstein's 

reports constitute some evidence in support of PTD compensation. Third, Navistar argues 

the magistrate erroneously disregarded certain facts that demonstrate the reports of Drs. 

Grunstein and Rutherford are not some evidence on which the commission could rely in 

determining Bisdorf's ability to engage in sustained remunerative employment.

{¶ 5} For ease of analysis, we first address Navistar's third objection to the 

magistrate's decision. Navistar argues that the magistrate "overlooked essential facts which 

prove that the reports of Drs. Grunstein and Rutherford are not 'some evidence' " on which 

to base its decision to grant PTD compensation. (Apr. 4, 2018 Objs. to Mag.'s Decision at 

11.) In particular, Navistar asserts the magistrate's second decision omits certain facts 
No. 16AP-776 3 

pertaining to Bisdorf's work at a gunshop until 2010. Bisdorf's November 2015 PTD 

compensation application indicates that he worked part-time at a gunshop from 2004 until 

2010 when the shop closed. The application further indicates that, during a typical day, 

Bisdorf spent two hours walking, four hours standing, and two hours sitting. Navistar 

argues the reports of Drs. Grunstein and Rutherford do not properly account for Bisdorf's 

ability to work at the gunshop until 2010. This argument is unpersuasive, however, because 

evidence that Bisdorf worked at a gunshop from 2004 until 2010 does not invalidate the 

reports that were based on examinations of Bisdorf in 2015 and 2016. Therefore, the 

magistrate did not err in not discounting the reports based on Bisdorf's work at the 

gunshop. Accordingly, we overrule Navistar's third objection to the magistrate's decision.

{¶ 6} Next we address Navistar's second objection to the magistrate's decision. 

Navistar argues the magistrate erroneously applied Bonnlander to the facts of this case. 

We disagree.

{¶ 7} In State ex rel. Bonnlander v. Hamon, 10th Dist. No. 14AP-855, 2015-Ohio4038, this court concluded the commission did not abuse its discretion in denying PTD 

compensation to the claimant, Timothy Bonnlander, because psychologist Dr. Debjani 

Sinha's opinion that Bonnlander could work "up to 4 hours a day" met the standard for 

determining one's capability to perform sustained remunerative employment on a parttime basis, and because the non-medical disability factors did not otherwise preclude such 

employment. On appeal, the Supreme Court of Ohio observed that there is "no statutory or 

administrative authority for [this court's] interpretation that four or more hours of work a 

day is the standard for sustained remunerative employment." Bonnlander, 2017-Ohio4003, at ¶ 17. The Supreme Court "has specifically rejected applying a numerical analysis" 

in PTD compensation cases, and "generally discourage[s] bright-line rules in workers' 

compensation matters." Id. at ¶ 18-19. Consequently, Supreme Court held that "there is no 

hourly standard for determining one's capability to perform sustained remunerative 

employment on a part-time basis. The commission decides whether a claimant is capable 

of sustained remunerative employment on a case-by-case basis." Id. at ¶ 20. In view of 

these principles, the Supreme Court reasoned that it was within the commission's 

discretion to rely on Dr. Sinha's report as evidence that Bonnlander was medically capable 

of sustained remunerative employment. Thus, in rejecting this court's implicit adoption of 
No. 16AP-776 4 

a numerical hourly standard for sustained remunerative employment, the Supreme Court 

emphasized the commission's discretion in deciding a claimant's work capability based on 

the particular facts presented.

{¶ 8} Here, Dr. Grunstein's October 10, 2015 "Functional Capacities Evaluation" 

states that Bisdorf can "stand/walk" for one hour in an eight-hour workday, and he can sit 

for two to three hours in an eight-hour workday. As the magistrate noted, these findings 

reasonably support a conclusion that Dr. Grunstein limits Bisdorf to three to four hours of 

work in an eight-hour day. In view of these limitations, the magistrate concluded that 

"[a]pplying the Bonnlander case, these work limitations can be viewed by the commission 

as preventing all sustained remunerative employment." (App'x at ¶ 58.) Navistar 

challenges this conclusion, arguing it is contrary to the Supreme Court's holding in 

Bonnlander. This argument is unpersuasive. As set forth above, the central tenants of the 

Bonnlander Supreme Court decision is that the commission has discretion in evaluating a 

claimant's ability to perform sustained remunerative employment, and that there is no 

bright-line hourly standard for determining that capability. That the commission, based 

on its review of the medical reports, reached a different disability conclusion in Bonnlander

than in this case, does not negate the applicability of the reasoning of that case to this case. 

Thus, the magistrate properly applied Bonnlander. Accordingly, we overrule Navistar's 

second objection to the magistrate's decision.

{¶ 9} Our disposition of Navistar's second objection renders moot its first objection 

insofar as it is unnecessary to resolve the issue of whether Dr. Rutherford's reports also 

provide some evidence on which the commission could rely in determining Bisdorf's ability 

to perform sustained remunerative employment. Consequently, we decline to adopt the 

magistrate's conclusions of law concerning Dr. Rutherford's reports. Navistar's first 

objection is overruled as moot.

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

the magistrate correctly concluded that Navistar is not entitled to the requested writ of 

mandamus. The magistrate correctly determined that the commission's decision granting 

Bisdorf's request for PTD compensation was supported by some evidence and therefore not 

an abuse of discretion. Accordingly, we adopt the magistrate's decision as our own, 

including the findings of fact and conclusions of law contained therein, except the 
No. 16AP-776 5 

magistrate's conclusions regarding Dr. Rutherford's reports. We therefore overrule 

Navistar's objections to the magistrate's decision and deny its request for a writ of 

mandamus.

Objections overruled; 

writ of mandamus denied. 

BROWN, P.J., and TYACK, J., concur. 

 

 
No. 16AP-776 6 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Navistar, Inc., : 

 

 Relator, : 

 

v. : No. 16AP-776 

 

The Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

Gary E. Bisdorf, : 

 

 Respondents. : 

 

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

Rendered on March 21, 2018

 

Vorys, Sater, Seymour and Pease LLP, and Corrine S. 

Carman, for relator. 

Michael DeWine, Attorney General, and Kevin J. Reis, for 

respondent Industrial Commission of Ohio. 

Stanley R. Jurus Law Office, and Michael J. Muldoon, for 

respondent Gary E. Bisdorf. 

 

IN MANDAMUS 

{¶ 11} In this original action, relator, Navistar, Inc. ("Navistar"), requests a writ of 

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

the May 10, 2016 order of its staff hearing officer ("SHO") awarding respondent Gary E. 

Bisdorf ("claimant") compensation for permanent total disability ("PTD"), and to enter an 

order denying the compensation. 
No. 16AP-776 7 

{¶ 12} This is the second magistrate's decision in this action. In his first decision 

filed June 22, 2017, the magistrate recommended this court issue a writ of mandamus 

ordering the commission to vacate the May 10, 2016 order of its SHO awarding PTD 

compensation, and to enter an order that determines whether claimant voluntarily 

abandoned the workforce. In its decision issued December 12, 2017, this court adopted 

the magistrate's findings of fact but rejected the magistrate's conclusions of law. This 

court denied Navistar's request for a writ of mandamus on the question of voluntary 

abandonment of the workforce and remanded the matter to this magistrate in order for 

him to rule on the remainder of Navistar's complaint. 

{¶ 13} Here, the magistrate shall reiterate some but not all of the findings of fact 

that this court adopted as its own in its December 12, 2017 decision. 

Findings of Fact: 

{¶ 14} 1. Claimant has two industrial claims arising from his employment as an 

assembler for Navistar, a self-insured employer under Ohio's workers' compensation laws. 

{¶ 15} 2. On November 7, 1971, claimant injured his left knee when a gas tank 

slipped and hit his left knee. The industrial claim (No. 493424-22) is allowed for "bruise 

left knee lower patella area; degenerative arthritis left knee; chondromalacia patella left 

knee." 

{¶ 16} 3. On December 19, 2001, claimant injured his right shoulder when a tool 

broke while he was pulling down. The claim (No. 01-880461) is allowed for "right shoulder 

strain; partial rotator cuff tear right shoulder; right shoulder disorder." 

{¶ 17} 4. Claimant had right shoulder surgery in March 2002. This included an 

arthroscopic rotator cuff repair. Later that same year, claimant underwent further right 

shoulder surgery. 

{¶ 18} 5. Claimant has had several surgeries to his left knee. In July 2007, he had a 

left total knee arthroplasty. 

{¶ 19} 6. On August 30, 2007, claimant moved for temporary total disability 

("TTD") compensation beginning July 23, 2007 which is the date of the left knee 

arthroplasty. 
No. 16AP-776 8 

{¶ 20} 7. Following a September 28, 2007 hearing, a district hearing officer 

("DHO") issued an order awarding TTD compensation beginning July 23, 2007. 

{¶ 21} 8. Navistar administratively appealed the DHO's order of September 28, 

2007. 

{¶ 22} 9. Following a November 6, 2007 hearing, an SHO issued an order affirming 

the DHO's order of September 28, 2007. 

{¶ 23} 10. On October 10, 2015, at claimant's request, he was examined by 

chiropractic physician David M. Grunstein. Following the examination, Dr. Grunstein 

issued a one-page report captioned "Functional Capacities Evaluation." The report states: 

[One] In an 8 hour workday this person can stand/walk: 1 

hour 

[Two] This person can stand at one time for 4-5 minutes 

 This person can walk at one time for 3-4 minutes 

[Three] In an 8 hour workday this person can sit for 2-3 hours 

[Four] This person can sit at one time for 20-30 minutes 

[Five] Lifting/Carrying limitations: 

A.) Up to 10 pounds: occasionally 

B.) 11-20 pounds: occasionally, with difficulty and increased 

pain 

C.) 21-50 pounds: not at all 

D.) 51-100 pounds: not at all 

[Six] Hands can be used for repetitive actions such as: 

Simple grasping: Right hand yes Left hand yes 

Fine manipulation: Right hand yes Left hand yes 

[Seven] Feet can be used for repetitive movement as in 

operating foot controls: 

Right foot: Yes Left foot: No 

[Eight] Patient is able to: 

A.) Work above the shoulder level: never 

B.) Bend/twist turn [at] waist: occasional and limited 

C.) Squat: never 

D.) Crawl: never 

E.) Climb: never 

F.) Push/pull: occasional and limited 
No. 16AP-776 9 

[Nine] Other restrictions or limitations this person has: This 

injury has resulted in this person suffering with sleep 

deprivation. 

{¶ 24} 11. On October 22, 2015, Dr. Grunstein issued a four-page report to 

claimant's counsel. The report states: 

History of the 12-19-01 injury: In the course of 

employment this person was injured as above described 

when he was torqueing a fitting and the wrench broke and 

this resulted in right shoulder injury. He has undergone 2 

shoulder surgeries, both arthroscopic and he has undergone 

post operative physical therapy with each surgery. He also 

notes that he took oral pain medications. 

History of the 11-07-71 injury: In the course of 

employment this person was injured when a stack of fuel 

tanks were bumped into by a forklift and the stack fell and 

struck his left leg. He states that he had undergone 8 knee 

surgeries, with the final surgery being a total knee 

replacement. He also notes that he partook in a lot of physical 

therapy and that he took oral pain medications. 

Present complaints of the 12-19-01 injury: He 

describes having constant right shoulder pain. Right 

shoulder weakness and crepitus. Limited movement of the 

shoulder and he also notes that following the second surgery, 

the shoulder quit dislocating, but still has a tendency towards 

subluxating. He notes increased pain with damp, cold 

weather. This pain disrupts sleep on a nightly basis. 

Present complaints of the 11-07-71 injury: [C]onstant 

moderate to severe knee pain. He notes that he cannot 

straighten the knee, and he cannot fully bend the knee. He 

cannot squat or kneel. Ambulation of stairs is difficult and 

limited and he notes increased pain with damp, cold 

weather. This pain disrupts sleep often. 

Treatment: He was taking oral NSAIDS, but they were 

irritating his stomach to the point that he had to stop taking 

them, and now he takes nothing for the pain and he notes that 

it is a struggle to deal with this amount of pain on an on 

going basis. 

(Emphasis sic.) 
No. 16AP-776 10 

{¶ 25} Following the above statements, Dr. Grunstein explains how he determined 

that claimant suffers a 25 percent whole person impairment for the shoulder injuries, a 30 

percent whole person impairment for the left knee injuries, and a 3 percent whole person 

impairment for "chronic intractable pain." He concludes that the impairments combine to 

equal a total whole person impairment of 50 percent. 

{¶ 26} In the last paragraph of his report, Dr. Grunstein opines: 

Based on the consultation and examination findings above 

stated and how these findings correlate with the A.M.A. 

Guides, it is my opinion that the above named presented in 

this office with a total whole person impairment of 50 

percent whole person impairment, on the above stated 

date, for the above stated conditions. Also note that when 

considering the above stated information and attached 

functional capacities evaluation, I am of the opinion that 

these injuries have resulted in this person being 

permanently and totally disabled from partaking in 

any type of sustained remunerative employment and is 

therefore permanently and totally disabled. 

(Emphasis sic.) 

{¶ 27} 12. On November 25, 2015, claimant filed an application for PTD 

compensation. In support, claimant submitted the one-page report dated October 10, 2015 

from Dr. Grunstein captioned "Functional Capacities Evaluation" and the four-page report 

dated October 22, 2015 from Dr. Grunstein. 

{¶ 28} 13. On January 18, 2016, at Navistar's request, claimant was examined by 

Christopher D. Holzaeffel, M.D., who practices orthopedics. 

{¶ 29} 14. Dr. Holzaeffel issued a five-page narrative report, stating: 

It is my medical opinion, based on the allowed conditions of 

right shoulder disorder (NOS); sprain, right shoulder; tear, 

right rotator cuff; arthritis, left knee; and chondromalacia, left 

knee, Mr. Bisdorf is capable of returning to sustained 

remunerative employment. The claimant has good function 

regarding his left knee, including the ability to sit for 2 hours 

at a time and walk for 20-30 minutes at a time. The claimant 

states he is taking no pain medication regarding his left knee. 

The claimant has a mild antalgic gait regarding his left lower 

extremity, but this is due to an injury to the left Achilles 
No. 16AP-776 11 

tendon. The claimant has only mild pain and loss of range of 

motion of the right shoulder associated with the objective 

findings noted on examination. He does have some mild 

weakness of forward flexion and abduction. 

* * * 

It is my medical opinion, the claimant is able to return to 

sustained remunerative employment with the following 

restrictions: It is my medical opinion, the claimant would be 

able to sit for no more than 2 hours at a time and walk for no 

more than 20-30 minutes at a time. He would be unable to 

ascend or descend stairs on a repetitive basis, and no stooping 

beyond 90 degrees of left knee flexion. He would also have a 

10-pound lifting restriction, and restriction of his overhead 

activities to no more than 2 hours in an eight-hour work day. 

{¶ 30} Furthermore, Dr. Holzaeffel opines that the right shoulder injuries produce 

an 8 percent whole person impairment, for a total of 28 percent whole person impairment 

for all the allowed conditions of the two industrial claims. 

{¶ 31} 15. On March 4, 2016, at the commission's request, claimant was examined 

by James H. Rutherford, M.D. Dr. Rutherford examined for all the allowed conditions in 

the two industrial claims. In his six-page narrative report that he signed on March 15, 2016, 

he opined that claimant has reached maximum medical improvement ("MMI") concerning 

all of the allowed conditions in both claims. 

{¶ 32} On the last page of his narrative report, Dr. Rutherford opines: 

Because the above described orthopedic impairments related 

to the claim allowances of the two claims under consideration, 

Mr. Bisdorf is not capable of doing work activity, or incapable 

of work activity, and I have indicated on the Physical Strength 

Rating Form, Mr. Bisdorf is not capable of doing occasional 

standing and walking for work activity. He can do no stooping, 

climbing, or crawling for work activity. Mr. Bisdorf also can 

do no above-shoulder work activity with his right upper 

extremity. He can do no repetitive pushing or pulling with his 

right upper extremity. Mr. Bisdorf can lift up to 5 lbs. 

maximum with his right upper extremity. He can only lift up 

to 10 lbs. maximum using both upper extremities. Because of 

his orthopedic impairments and the functional limitations of 

those impairments, Mr. Bisdorf is not capable of doing even 
No. 16AP-776 12 

sedentary work activities as defined by the Ohio Bureau of 

Workers' Compensation and the U.S. Department of Labor. 

It is thus my medical opinion that, based only on the 

orthopedic claim allowances of the two claims under 

consideration, that Mr. Gary Bisdorf is incapable of work, and 

I have indicated this on the Physical Strength Rating Form. 

{¶ 33} 16. On a "Physical Strength Rating" form, Dr. Rutherford indicated by his 

mark "[t]his Injured Worker is incapable of work." 

{¶ 34} 17. On May 10, 2016, the PTD application was heard by an SHO. The hearing 

was recorded and transcribed for the record. 

{¶ 35} 18. Following the May 10, 2016 hearing, the SHO mailed an order on May 13, 

2016 awarding PTD compensation beginning October 22, 2015 based on the medical 

reports of Drs. Grunstein and Rutherford. Based on those medical reports, the SHO found 

that claimant is unable to perform any sustained remunerative employment. 

Consequently, the SHO determined it was unnecessary to discuss or analyze the nonmedical disability factors. The SHO's order of May 10, 2016 states: 

The start date for the award of Permanent Total Disability 

Compensation of 10/22/2015 is based upon the 10/22/2015 

report of David Grunstein, D.C. who opined within a report of 

that date that the Injured Worker was permanently and totally 

disabled from partaking in any type of sustained gainful 

remunerative employment. The Staff Hearing Officer finds 

that the Injured Worker's allowed condition[s] [in] his claims 

have reached Maximum Medical Improvement based upon 

the 3/15/2016 report of Dr. Rutherford. 

* * * 

Particularly, Dr. Rutherford examined the Injured Worker on 

behalf of the Industrial Commission on 03/04/2016 and 

determined that the Injured Worker "is not capable of doing 

occasional standing and walking for work activity." The Staff 

Hearing Officer finds that Ohio Adm.Code 4121-3-34(B)(2)(a) 

provides specifically that: 

"Jobs are sedentary if walking and standing are required only 

occasionally and all other sedentary criteria are met." 
No. 16AP-776 13 

The Injured Worker's allowed conditions of his left leg are in 

claim 493424-22. Dr. Rutherford found that the Injured 

Worker was not capable of doing occasional standing and 

walking for work activity; he subsequently found that the 

Injured Worker was incapable of work. 

Based upon the reports of James Rutherford, M.D., dated 

03/15/2016, and David Grunstein, D.C., dated 10/22/2015, it 

is found that the Injured Worker is unable to perform any 

sustained remunerative employment solely as a result of the 

medical impairment caused by the allowed physical 

conditions. Therefore, pursuant to State ex rel. Speelman v. 

Indus. Comm., 73 Ohio App.3d 757, 598 N.E.2d 192 (10th 

Dist. 1992), it is not necessary to discuss or analyze the 

Injured Worker's non-medical disability factors. 

{¶ 36} 19. On May 27, 2016, Navistar moved for reconsideration of the SHO's order 

of May 10, 2016. 

{¶ 37} 20. On July 1, 2016, the three-member commission mailed an order denying 

Navistar's motion for reconsideration. 

{¶ 38} 21. On November 15, 2016, relator, Navistar, Inc., filed this mandamus 

action. 

Conclusions of Law: 

{¶ 39} Two issues are presented: (1) whether the reports of Dr. Rutherford provide 

some evidence on which the commission relied in determining residual functional capacity 

and, (2) whether the reports of Dr. Grunstein provide some evidence on which the 

commission relied in determining residual functional capacity. Ohio Adm.Code 4121-3-

34(B)(4). 

{¶ 40} The magistrate finds that the reports of Drs. Rutherford and Grunstein 

provide some evidence on which the commission relied in determining that the allowed 

conditions of the two industrial claims prohibit all sustained remunerative employment. 

{¶ 41} Accordingly, it is the magistrate's decision that this court deny relator's 

request for a writ of mandamus, as more fully explained below. 

Basic Law

{¶ 42} Ohio Adm.Code 4121-3-34 sets forth the commission's rules for the 

adjudication of PTD applications. Ohio Adm.Code 4121-3-34(B) sets forth definitions. 
No. 16AP-776 14 

{¶ 43} Ohio Adm.Code 4121-3-34(B)(2) is captioned "Classification of physical 

demands of work." Thereunder, the code provides: 

(a) "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. 

(b) "Light work" means exerting up to twenty pounds of force 

occasionally, and/or up to ten pounds of force frequently, 

and/or a negligible amount of force constantly (constantly: 

activity or condition exists two-thirds or more of the time) to 

move objects. Physical demand may be only a negligible 

amount, a job should be rated light work: (i) when it requires 

walking or standing to a significant degree; or (ii) when it 

requires sitting most of the time but entails pushing and/or 

pulling or [sic] arm or leg controls; and/or (iii) when the job 

requires working at a production rate pace entailing the 

constant pushing and/or pulling of materials even though the 

weight of those materials is negligible. 

{¶ 44} In State ex rel. O'Brien v. Cincinnati Inc., 10th Dist. No. 07AP-825, 2008-

Ohio-2841, at ¶ 9-10, the court summarized relevant case law: 

Initially, it is important to note that a medical report that 

identifies the worker's exertional category as defined in the 

Ohio Administrative Code and does not include additional 

opinions regarding specific restrictions on sitting, lifting, 

standing, and so forth is still sufficient to constitute some 

evidence. State ex rel. Ace v. Toyota of Cincinnati Co., 

Franklin App. No. 03AP-517, 2004 Ohio 3971, at P30. Thus, a 

medical report may constitute evidence on which the 

commission may rely when the physician simply opines the 

claimant was limited to "sedentary work" and provides no 

further details of the claimant's various functional 

restrictions. Id.

On the other hand, the commission cannot simply rely on a 

physician's "bottom line" identification of an exertional 

category without examining the specific restrictions imposed 
No. 16AP-776 15 

by the physician in the body of the report. See State ex rel. 

Owens-Corning Fiberglas Corp. v. Indus. Comm., Franklin 

App. No. 03AP-684, 2004 Ohio 3841; and State ex rel. 

Howard v. Millennium Inorganic Chemicals, Franklin App. 

No. 03AP-637, 2004 Ohio 6603. In both Owens-Corning and 

Howard, the doctor indicated that the injured worker could 

perform at a certain strength level, and yet, the rest of the 

report indicated greater restrictions on the injured worker 

that would actually render him incapable of performing the 

strength level work that the doctor had indicated he could 

perform. This court held in Owens-Corning and Howard that 

the commission cannot simply rely upon a determination that 

an injured worker can perform at a certain strength level; 

rather, the commission must review the doctor's report and 

actually make certain that any physical restrictions the doctor 

listed correspond with an ability to actually perform at the 

exertional level indicated by the doctor. 

Dr. Rutherford's Reports

{¶ 45} The issue with respect to Dr. Rutherford's reports is whether Dr. 

Rutherford's conclusion that claimant "is incapable of work" is consistent or supported 

by his findings regarding orthopedic impairments related to the allowed conditions of the 

two industrial claims. 

{¶ 46} In his narrative report, second to the last paragraph, Dr. Rutherford finds 

that claimant "can do no repetitive pushing or pulling with his right upper extremity." In 

the definition, "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. Thus, by definition, sedentary work requires some repetitive pushing or pulling. 

Because claimant can do no repetitive pushing or pulling according to Dr. Rutherford, 

sedentary work is precluded. Under these circumstances, Dr. Rutherford can properly 

conclude that claimant "is incapable of work." Thus, Dr. Rutherford's reports provide 

some evidence that claimant is unable to perform sustained remunerative employment. 

Dr. Grunstein's Reports

{¶ 47} In his October 22, 2015 report, Dr. Grunstein concludes "these injuries have 

resulted in this person being permanently and totally disabled from partaking in any type 

of sustained gainful renumerative [sic] employment." The issue is whether Dr. 
No. 16AP-776 16 

Grunstein's conclusion is consistent or supported by his findings contained in his 

October 10, 2015 "Functional Capacities Evaluation." 

{¶ 48} State ex rel. Bonnlander v. Hamon, 150 Ohio St.3d 567, 2017-Ohio-4003, 

is instructive. 

{¶ 49} Timothy Bonnlander applied for PTD compensation on February 28, 2014 

following his industrial injury of October 13, 1992. The claim was allowed for numerous 

medical conditions and depressive disorder. At the commission's request, Bonnlander 

was examined by John J. Brannan, M.D., and Debjani Sinha, Ph.D. 

{¶ 50} Dr. Brannan concluded that Bonnlander's medical conditions would not 

prevent him from performing sedentary work. Dr. Sinha evaluated Bonnlander's 

psychological condition and concluded that he was capable of working "part-time, up to 

4 hours a day," with the following limitations: "accommodate for variable concentration; 

routine jobs are more appropriate; minimal new learning on an ongoing basis; multiple 

breaks." Id. ¶ 4. 

{¶ 51} Following a hearing, an SHO issued an order denying Bonnlander's PTD 

application. Relying on the reports of Drs. Brannan and Sinha, the SHO concluded that 

Bonnlander "could engage [in] sedentary employment activity which involves part-time 

work, up to four hours a day and also involves routine employment and minimal new 

learning on an ongoing basis. The sedentary work should also avoid overhead use of the 

right arm and avoid excessive lifting, bending and twisting." Id. at ¶ 5. 

{¶ 52} The SHO also analyzed the non-medical disability factors in reaching his 

decision to deny the application. 

{¶ 53} Bonnlander then filed a complaint in mandamus in this court. A magistrate 

concluded that Dr. Sinha's report supported the commission's decision. The magistrate 

held that Dr. Sinha's opinion that Bonnlander can work "up to 4 hours a day" met the 

standard for part-time work set forth in State ex rel. Sheller-Chiles v. Indus. Comm., 10th 

Dist. No. 13AP-245, 2014-Ohio-313, ¶ 15. 

{¶ 54} This court adopted the magistrate's decision and denied the writ. 

Bonnlander appealed as of right to the Supreme Court of Ohio. 
No. 16AP-776 17 

{¶ 55} As stated by the Supreme Court in its decision, the issue is whether Dr. 

Sinha's report constitutes some evidence supporting the commission's order denying the 

PTD application. 

{¶ 56} While affirming the judgment of this court, the Supreme Court observed 

that "[t]here is no statutory or administrative authority for [this court's] interpretation 

that four or more hours of work a day is the standard for sustained remunerative 

employment." Bonnlander at ¶ 17. Furthermore, the court "generally discourages brightline rules in workers' compensation matters." Id. at ¶ 19. 

{¶ 57} In Bonnlander, the Supreme Court held: 

[T]here is no hourly standard for determining one's capability 

to perform sustained remunerative employment on a parttime basis. The commission decides whether a claimant is 

capable of sustained remunerative employment on a case-bycase basis. Here, Dr. Sinha opined that Bonnlander's 

psychological condition limited him to four hours of work a 

day with multiple breaks. It was within the commission's 

discretion to rely on Dr. Sinha's report as evidence to support 

the conclusion that Bonnlander was capable of up to four 

hours of sedentary work a day. 

Id. at ¶ 20. 

{¶ 58} In his October 10, 2015 "Functional Capacities Evaluation," Dr. Grunstein 

finds that claimant can "stand/walk" for one hour during an eight-hour workday. He also 

finds that claimant can sit for two to three hours. Adding these two findings, one can 

conclude that Dr. Grunstein limits claimant to three to four hours of work in an eighthour day. Applying the Bonnlander case, these work limitations can be viewed by the 

commission as preventing all sustained remunerative employment. Given that analysis, 

the magistrate concludes here that Dr. Grunstein's reports provided the commission with 

some evidence on which it relied to enter a finding that claimant is unable to perform 

sustained remunerative employment. 

{¶ 59} 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. 16AP-776 18 

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).