[Cite as State ex rel. Honda of Am. Mfg., Inc. v. Indus. Comm. of Ohio, 2014-Ohio-5245.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

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

 Relator, : 

v. : No. 14AP-82 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Donald Siegfried, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on November 25, 2014 

 

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

Christopher C. Wager, for relator. 

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

respondent Industrial Commission of Ohio. 

Philip J. Fulton Law Office, and Chelsea J. Fulton, for 

respondent Donald Siegfried. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

LUPER SCHUSTER, J. 

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

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

vacate its order which granted permanent total disability ("PTD") compensation to 

respondent Donald Siegfried ("claimant") and to find that he is not entitled to PTD 

compensation. 
No. 14AP-82 2 

{¶ 2} The court referred the matter to a magistrate pursuant to Civ.R. 53(C) and 

Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision 

including findings of fact and conclusions of law, which is appended hereto. The 

magistrate recommends denial of relator's request for a writ of mandamus because some 

medical evidence supports the commission's conclusion that claimant is permanently and 

totally disabled. Relator filed objections to the magistrate's decision, and the matter is 

now before us for our independent review. 

{¶ 3} As the magistrate sets out more fully, claimant sustained multiple workrelated injuries, three of which resulted in allowable workers' compensation claims: (1) a 

1996 lumbar injury, (2) a 1997 rotator cuff injury, and (3) a 1999 claim for carpal tunnel 

syndrome. Claimant first applied for PTD compensation in March 2009. A staff hearing 

officer ("SHO") denied the claim on February 17, 2010, relying on reports which 

concluded claimant was capable of performing sedentary work with certain limitations. 

{¶ 4} Claimant's treating physician, Dr. Stephen Altic, wrote claimant's attorney 

that claimant was "permanently totally disabled from all gainful and remunerative 

employment." (R. 246.) The letter also described the resulting limitations of claimant's 

injuries, including "impaired range of motion of the lumbar spine, and chronic pain." 

(R. 246.) In June 2012, claimant applied for PTD with respect to his 1996 lumbar injury 

only. In support of his application, claimant submitted the March 13, 2012 letter from Dr. 

Altic. 

{¶ 5} On December 6, 2012, Stephen Phillips prepared an employability 

assessment on claimant. Phillips opined that claimant's age was a disadvantage to 

employment and that training was not an option. Ultimately, Phillips concluded claimant 

was an unlikely candidate for any sustained remunerative employment. In October 2012, 

Dr. E. Gregory Fisher performed an independent medical examination on claimant. Dr. 

Fisher concluded all claimant's allowed conditions had reached maximum medical 

improvement and he was capable of performing sedentary work with limitations. 

{¶ 6} Claimant's PTD application was heard before an SHO on January 10, 2013. 

Relying on the medical report of Dr. Altic, the SHO found claimant was entitled to PTD 

compensation. Relator filed a request for reconsideration which the commission granted, 

and then vacated the SHO's order awarding PTD compensation. The commission then 
No. 14AP-82 3 

reviewed and considered all the evidence of record. Relying on the medical reports of Drs. 

Altic and Fisher, as well as the vocational report of Phillips, the commission found 

claimant was entitled to an award of PTD compensation. Thereafter, relator filed this 

mandamus action. 

{¶ 7} Relator sets forth two objections to the magistrate's decision: 

[I.] Competent medical evidence supports that [claimant] is 

incapable of sedentary work. 

[II.] The Commission properly considered the [State ex rel 

Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987)] 

factors to its vocational analysis. 

{¶ 8} In its first objection, relator contends the magistrate erred by finding 

competent medical evidence supported the commission's decision. Specifically, relator 

asserts Dr. Altic's report is insufficient as a matter of law because it is a "conclusory 

recitation" of conditions allowed for previous claims and provides no analysis of 

claimant's limitations. We disagree. 

{¶ 9} As explained in the magistrate's decision, under Ohio Adm.Code 4121-3-

34(C)(1), an application for PTD must be "accompanied by medical evidence from a 

physician * * * that supports an application for permanent total disability compensation." 

Further, the medical evidence must "provide an opinion that addresses the injured 

worker's physical and/or mental limitations resulting from the allowed conditions in the 

claim(s)." Where the medical evidence establishes that a claimant's PTD is solely a result 

of the allowed conditions, the commission may grant PTD compensation on that basis 

alone. State ex rel. Hopkins v. Indus. Comm., 70 Ohio St.3d 36 (1994). 

{¶ 10} Further, "the commission is the exclusive evaluator of factual evidence in 

determining whether an individual is entitled to compensation." State ex rel. Letcher v. 

Keco Industries, Inc., 10th Dist. No. 07AP-151, 2008-Ohio-1907, ¶ 6, citing State ex rel. 

Cherryhill Mgt., Inc. v. Indus. Comm., 116 Ohio St.3d 27, 2007-Ohio-5508, ¶ 13. As long 

as there is some evidence supporting the commission's decision, this court must defer to 

the commission's judgment. State ex rel. Athey v. Indus. Comm., 89 Ohio St.3d 473, 475 

(2000), citing State ex rel. LTV Steel Co. v. Indus. Comm., 88 Ohio St.3d 284, 287 

(2000). 
No. 14AP-82 4 

{¶ 11} As quoted above, and explained fully in the magistrate's decision, Dr. Altic's 

report specifically addressed claimant's physical limitations resulting from his allowed 

claim, noting the "impaired range of motion" and "chronic pain." (R. 246.) Dr. Altic 

concluded, based on his limitations, that claimant is not capable of sustained 

remunerative employment. Therefore, the commission's decision granting claimant PTD 

compensation was based on some medical evidence and was not an abuse of discretion. 

{¶ 12} Relator's second objection asserts the magistrate erred by concluding the 

commission did not perform a correct vocational analysis and, instead, relied on the 

vocational conclusions of Phillips. 

{¶ 13} Because the commission relied on the medical evidence in Dr. Altic's report 

when determining claimant was permanently and totally disabled, we need not address 

the State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987), nonmedical 

factors. Consideration of nonmedical factors is not necessary when the claimant's 

"medical factors alone preclude sustained remunerative employment" and where 

" 'nonmedical factors will not render the claimant any more or less physically able to 

work.' " State ex rel. Tradesman Internatl. v. Indus. Comm., 10th Dist. No. 13AP-122, 

2014-Ohio-1064, ¶ 18, quoting State ex. rel. Galion Mfg. Div., Dresser Industries, Inc. v. 

Haygood, 60 Ohio St.3d 38, 40 (1991). 

{¶ 14} After an examination of the magistrate's decision, an independent review of 

the record pursuant to Civ.R. 53, and due consideration to relator's objections, we 

overrule both of relator's objections and adopt the magistrate's findings of fact and 

conclusions of law. Accordingly, we deny relator's request for a writ of mandamus. 

Objections overruled; 

writ of mandamus denied. 

BROWN and CONNOR, JJ., concur. 

 

 
No. 14AP-82 5 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

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

 Relator, : 

v. : No. 14AP-82 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Donald Siegfried, 

 : 

 Respondents. 

 : 

 

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

Rendered on July 25, 2014

 

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

and Christopher C. Wager, for relator. 

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

respondent Industrial Commission of Ohio. 

Philip J. Fulton Law Office, and Chelsea J. Fulton, for 

respondent Donald Siegfried. 

 

IN MANDAMUS 

{¶ 15} 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 which granted permanent total 

disability ("PTD") compensation to respondent Donald Siegfried ("claimant"), and 

ordering the commission to find that claimant is not entitled to that compensation. 
No. 14AP-82 6 

Findings of Fact: 

{¶ 16} 1. During the course of his employment with relator, claimant filed claims 

for three separate injuries and his workers' compensation claims are allowed for the 

following conditions: 

96-800022 (date of injury 11/01/1996): Acute lumbosacral 

strain, L4 radiculopathy; herniated nucleus pulposus L5-S1; 

herniated nucleus pulposus L4-L5; aggravation of preexisting lumbar degenerative joint disease; aggravation of 

pre-existing lumbar degenerative disc disease and lumbar 

stenosis; herniated disc at the L3; and major depressive 

disorder. 

97-635855 (date of injury 08/29/1997): Partial rotator cuff 

tear; right shoulder with impingement. 

99-800964 (date of injury 11/30/1999): right lateral 

epicondylitis; right carpal tunnel syndrome; right radial 

tunnel syndrome. 

{¶ 17} 2. In a letter dated June 6, 2008, Janet W. Bay, M.D., noted that claimant 

had been under her care for his 1996 work-related injury since 2003, had undergone two 

surgical procedures and continued to have on-going low back pain and right sciatica. She 

opined that claimant was permanently and totally disabled, stating: 

At this point, I believe Mr. Siegfried has reached maximal 

medical improvement from his two spinal operations. He has 

been left with chronic low back pain and right sciatica that 

will require medical treatment. Based on his chronic pain, I 

would consider him completely and permanently medically 

disabled from any type of labor. It is possible that he might 

be able to undergo some type of job retraining for electronics 

or some type of other lighter work, but he certainly is not 

physically capable of returning to work as a factory worker. 

{¶ 18} 3. An independent medical evaluation was performed by Richard M. Ward, 

M.D. In his August 21, 2008 report, Dr. Ward noted the history of claimant's injuries, 

provided his physical findings upon examination, and opined that only considering the 

physical allowances, claimant had severe functional limitations and there really was no 

combination of sit, stand, walk options that would add up to a normal eight-hour work 

day. Dr. Ward also noted severe limitations on claimant's ability to use his right upper 
No. 14AP-82 7 

extremity because of loss of motion and marked weakness of grip strength in his right 

hand. Ultimately, Dr. Ward opined that claimant was not capable of working to 

substantial gainful employment and should be awarded permanent total disability. 

{¶ 19} 4. Claimant submitted an application for PTD compensation in March 

2009. At the time, claimant was 63 years old, indicated that he had last worked in May 

2003, and was receiving Social Security Disability payments. Claimant indicated that he 

graduated from high school and attended vocational school to become a barber. Claimant 

noted that he could read and perform basic math, and that he could write, but not well. It 

was Dr. Bay's report that he submitted in support of his PTD application. 

{¶ 20} 5. On April 28, 2009, Mark E. Reynolds, M.D., evaluated claimant for his 

allowed psychological condition of major depression disorder, opined that claimant had 

an 8 percent impairment and his psychiatric condition would not, in and of itself, 

prevent him from being employed nor would it prevent him from participating in 

rehabilitation. 

{¶ 21} 6. Lewis Seeder, M.D., examined claimant for his allowed physical 

conditions. In his May 7, 2009 report, Dr. Seeder noted the history of claimant's 

injuries as well as his treatment, provided his physical findings upon examination, and 

opined that claimant had a 16 percent impairment and was capable of performing 

sedentary work with the following restrictions: sit 6 to 8 hours; stand and walk 0 to 3 

hours; lift, carry, push, pull or otherwise move up to 10 pounds 0 to 3 hours; claimant 

could occasionally climb stairs but not ladders; could occasionally use foot controls as 

well as crouch, stoop, bend, kneel, handle objects and reach over head at waist, knee, 

and floor level. Dr. Seeder noted that those restrictions were for claimant's right upper 

extremity only. 

{¶ 22} 7. Claimant was examined by Joseph W. Duritsch, M.D. In his June 23, 

2009 report, Dr. Duritsch identified the allowed conditions in claimant's claims, the 

information which he reviewed, and provided a historical account of claimant's injuries 

and treatment. Thereafter, Dr. Duritsch provided his physical findings upon 

examination, opined that claimant's allowed conditions had reached maximum medical 

improvement ("MMI"), determined that claimant had a 23 percent whole person 
No. 14AP-82 8 

impairment which he attributed exclusively to claimant's back condition, and concluded 

that claimant could perform sedentary work. 

{¶ 23} 8. Ralph E. Skillings, Ph.D., examined claimant for his allowed 

psychological condition. In his July 3, 2009 report, Dr. Skillings identified the medical 

records which he reviewed, presented his findings, opined that claimant's allowed 

psychological condition had reached MMI, that he had a 10 percent Class 2 mild 

impairment, and that he was capable of working. 

{¶ 24} 9. Craig Johnston, Ph.D., CRC, prepared an employability assessment 

dated September 13, 2009. Dr. Johnston opined that claimant's age of 63 years was a 

neutral factor in his ability to secure future employment, that his possession of a high 

school diploma qualified him for most entry-level work activities, and that his work 

history was a vocational factor which provided him with transferable skills. Dr. 

Johnston concluded that claimant was capable of working with the restrictions noted in 

the medical records. 

{¶ 25} 10. Because he had not considered claimant's allowed shoulder condition, 

Dr. Duritsch prepared an addendum report wherein he opined that claimant had a 34 

percent whole person impairment, that his allowed conditions had reached MMI, and 

that he was capable of performing sedentary work provided he be limited to no reaching 

overhead on the right. 

{¶ 26} 11. Claimant's application was heard before a staff hearing officer ("SHO") 

on February 17, 2010. The SHO relied on the medical reports of Drs. Seeder and 

Reynolds to conclude that claimant was capable of performing sedentary work. Having 

found that he was capable of performing sedentary work, the SHO considered the nonmedical disability factors. Specifically, the SHO discussed and agreed with the 

vocational evaluation and assessment of Dr. Johnston who had concluded that 

claimant's age, education, and work experience were all positive vocational factors. 

{¶ 27} 12. On March 13, 2012, claimant's treating physician Stephen Altic, D.O., 

sent claimant's attorney the following letter: 

This is in response to your 02/15/2012 letter. As you know, 

this gentleman sees me on a regular basis for this injury and 

its resultant significant multilevel lumbar disc problems. 

Given this gentleman's radicular complaints, impaired range 
No. 14AP-82 9 

of motion of the lumbar spine, and chronic pain for the 

conditions allowed in this claim: 722.10, 724.4, 721.90, 

722.52, and 724.02, in my medical opinion he is impaired by 

these conditions to the extent that he is permanently totally 

disabled from all gainful and remunerative employment. 

{¶ 28} 13. Claimant completed and filed a second application for PTD 

compensation listing only the 1996 claim. On this application, claimant indicated that he 

could read, write, and perform basic math. (Previously, claimant indicated that he could 

write, but not well.)

{¶ 29} 14. Claimant was seen again by Dr. Seeder. In his August 10, 2012 report, 

Dr. Seeder listed the allowed conditions in all of claimant's claims, opined that those 

allowed conditions had reached MMI, concluded that claimant had a 9 percent whole 

person impairment (opined 16 percent in 2009), noted that there had been no changes 

in claimant's status, and again concluded that he was capable of performing work with 

the following limitations: sit 6 to 8 hours; stand and walk 0 to 3 hours; lift or carry up to 

10 pounds 0 to 3 hours; (Dr. Seeder did not indicate how much claimant could push, 

pull, or otherwise move, but he previously had indicated less than 10 pounds 0 to 3 

hours.); occasionally climb stairs but not ladders; occasionally use foot controls; crouch, 

stoop, bend, kneel, handle objects, and reach overhead at waist, knee, and floor level. 

These restrictions were for the right upper extremity only. 

{¶ 30} 15. An independent medical examination was performed by E. Gregory 

Fisher, M.D. In his October 27, 2012 report, Dr. Fisher identified the allowed conditions 

in claimant's claims, provided claimant's medical history, identified the medical records 

which he reviewed, provided his physical findings upon examination, and concluded 

that claimant's allowed conditions had all reached MMI, assessed a 28 percent whole 

person impairment (23 percent of that was for claimant's allowed back condition), and 

opined that claimant was capable of performing sedentary work with the following 

restrictions: 

He should have a weight limitation of 5 pounds frequently 

and 10 pounds occasionally. He should avoid bending and 

twisting at the waist level and avoid climbing ladders or 

stairs. 
No. 14AP-82 10 

{¶ 31} 16. The record also contains a November 16, 2012 letter by Dr. Bay 

addressed to claimant's treating physician Dr. Altic. In that letter, Dr. Bay explained why 

she believed additional surgery was necessary: 

[Relator] underwent a right L3 diskectomy and a re-fusion of 

L3 through 5 with new instrumentation. He did well from 

both these procedures and awakened feeling better, although 

he never was symptom-free and never was able to return to 

work. 

He comes now with progressive symptoms of burning and 

pain in his legs, weakness requiring a cane to walk, and some 

numbness in his lower extremities, as well. 

His MRI scan does show adjacent segment disease with L2-3 

stenosis just above the site of his upper pedicle screws. 

I do believe he has mechanical cauda equina compression as 

a source of his pain, numbness, and weakness. I have 

recommended a decompressive laminectomy at L2 with 

extension of his fixation and fusion from L2 down to L5. 

Indications and risks were discussed with him. I certainly 

cannot guarantee that he would be pain-free, but I think we 

can improve his neurological complaints and hopefully his 

pain to a degree, as well. 

As doctor of record, I would appreciate it if you would obtain 

consent from the Industrial Commission for this procedure. 

Please let me know if you need any further information. 

{¶ 32} 17. An employability assessment was prepared by Stephen Phillips, CRC, 

CDMS, dated December 6, 2012. In his report, Mr. Phillips indicated that claimant had a 

(att. 19) "70% permanent partial disability award from BWC." (This information is not 

provided elsewhere in the stipulation of evidence and could not be verified.) Mr. Phillips 

noted that there was no documentation that claimant was aware of or turned down an 

offer of vocational rehabilitation services. Further, Mr. Phillips found that claimant's age 

of 67 was a disadvantage, that training was not an option despite his high school 

education, and that he had no transferrable skills. As such, Mr. Phillips concluded that 

claimant was a very unlikely candidate for any sustained remunerative employment. 
No. 14AP-82 11 

{¶ 33} 18. Dr. Johnston rendered a second employability assessment. Dr. 

Johnston concluded that claimant's age was a potential barrier, that his high school 

diploma would qualify him for most entry-level work, that his work history was an asset 

to his ability to secure future employment as it provided him with certain transferable 

skills. Dr. Johnston ultimately concluded that claimant was capable of working. 

{¶ 34} 19. Claimant's application was heard before an SHO on January 10, 2013. 

The SHO relied upon the medical report of Dr. Altic to find that claimant was entitled to 

an award of PTD compensation, specifically stating: 

The medical evidence on file supports a finding that the 

Injured Worker underwent a laminectomy subsequent to the 

2010 denial of a permanent and total disability application. 

The Staff Hearing Officer finds that since that finding in 

2010 and as a result of the newly allowed conditions and 

surgical procedures the Injured Worker has suffered a 

significant worsening of his condition. Dr. Altic has stated 

that the Injured Worker's radicular complaints, his impaired 

range of motion along with chronic pain has resulted in the 

permanency of the condition and his inability to return to 

gainful employment. 

{¶ 35} 20. Relator filed a request for reconsideration setting forth what relator 

believed to be the following clear mistakes of fact and law: 

[T]he staff hearing officer: 

 Recited the incorrect conditions allowed and 

disallowed in Claim No. 96-800022 (the only claim in 

which PTD compensation was awarded); 

 The hearing officer incorrectly found new and 

changed circumstances since the denial of an earlier 

PTD application. Specifically, she cited to a surgical 

procedure that she stated took place since the denial 

of an earlier application for PTD compensation. The 

surgery actually took place prior to the previous denial 

of PTD benefits; 

 The six-line report of Dr. Altic (the sole support for 

the award) lists conditions in Claim N0. 96-800022 

which have not been allowed; 
No. 14AP-82 12 

 Dr. Altic has authored a request that the claimant 

undergo surgery, which is inconsistent with a finding 

of PTD; and 

 There were no meaningful new and changed 

circumstances since the denial of the previous 

application and the awarding of PTD compensation 

constitutes a mistake of law. 

{¶ 36} 21. Claimant filed a memorandum contra asserting there was no 

requirement that he establish new and changed circumstances, that the SHO only 

considered the allowed conditions, and there was no abuse of discretion in granting him 

PTD compensation. 

{¶ 37} 22. In an interlocutory order, the commission set relator's request for 

reconsideration for hearing. 

{¶ 38} 23. Dr. Bay authored another letter dated July 2, 2013, stating: 

Mr. Donald Siegfried has been under my care sine 2003 for 

spinal pathology dating back to a work-related injury 

suffered in 1996. In 2003, he underwent a decompressive 

laminectomy of L4-5 with a left discectomy. He did well 

thereafter until 2005, when he developed adjacent segment 

disease with a herniated disk on the right at L3-4. His fusion 

was extended up to include the L3 level. 

He did well for many years until this year when he developed 

recurrent pain, and earlier this year he underwent an 

extension of his fusion up to include the L2 level with an 

interbody graft at L2-3 as well. At this point, he is fused from 

L2 through L5. 

All of his surgical procedures are flow-through from that 

original injury back in 1996, which was work-related. He has 

been left with some chronic pain in his back and leg. He 

does get around with a cane. 

In my opinion, he is completely and permanently medically 

disabled in regard to his back. Should you have any further 

questions, please feel free to contact this office. 

{¶ 39} 24. Relator's request for reconsideration was heard before the commission 

on July 9, 2013. 
No. 14AP-82 13 

{¶ 40} 25. The commission granted relator's request for reconsideration and 

vacated the SHO's order from the January 10, 2013 hearing (mailed January 26, 2013). 

Thereafter, the commission relied on the medical reports of Drs. Altic and Fisher and 

the vocational report of Mr. Phillips to find that claimant was entitled to an award of 

PTD compensation. Specifically, the commission order states: 

It is the order of the Commission that the Injured Worker's 

Application for Permanent Total Disability filed 06/15/2012 

is granted. Payment of permanent total disability 

compensation is to start 03/13/2012, the date of the report 

from Stephen Altic, D.O., which is the first report since the 

previous denial hearing of 02/17/2010, to opine on the issue 

of permanent total disability. 

The cost of this award is apportioned 100% in claim 96-

800022, which is the only claim considered by Dr. Altic in 

his letter dated 3/13/2012, specifically finding permanent 

total disability. 

The Commission finds the Injured Worker is unable to 

perform, or be retrained for, any sustained remunerative 

employment as a result of the allowed conditions in claim 

number 96-800022. This decision is based on the 

03/13/2012 report of Dr. Altic, who opined the Injured 

Worker was unable to perform sustained remunerative 

employment, and the 10/27/2012 opinion of E. Gregory 

Fisher, M.D., that the Injured Worker is capable of less than 

sedentary work activities. In his examination report of 

10/27/2012, Dr. Fisher found the Injured Worker had to 

avoid bending and twisting at waist level, avoid climbing 

stairs or ladders, lifting no more than five pounds on a 

frequent basis and no more than ten pounds on an 

occasional basis. 

The Commission also relies upon the 12/06/2012 report 

from Stephen Phillips CRC, CDMS. Mr. Phillips found that 

the Injured Worker's age of 67 to be a disadvantage in 

seeking work, especially in low strength jobs, and retraining 

to be difficult given the Injured Worker's need to change 

positions and the length of time since his last academic 

experience. Given the Injured Worker's age and current 

physical limitations, Mr. Phillips opined that the Injured 

Worker "is limited in his ability to compete in today's job 
No. 14AP-82 14 

market" and that he is a very "unlikely candidate for any 

sustained, remunerative employment." 

{¶ 41} 26. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 42} Relator asserts that the commission abused its discretion by: (1) concluding 

that claimant was permanently and totally disabled from a medical perspective where 

there is no competent medical evidence in the record to support that conclusion and the 

evidence relied upon by the commission indicates that claimant is capable of sedentary 

work, and (2) relying solely upon the vocational report of Mr. Phillips without conducting 

its own vocational analysis. 

{¶ 43} The magistrate finds that the commission did not abuse its discretion 

when it: (1) used Dr. Altic's medical report to set the start date for PTD compensation 

and relied on the medical report of Dr. Fisher to find that claimant was capable of 

sedentary work, and (2) relied on Mr. Phillips' vocational analysis.

{¶ 44} 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).

{¶ 45} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, relator must show a clear legal right to the relief 

sought and that the commission has a clear legal duty to provide such relief. State ex 

rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of 

mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel. 

Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record 

contains some evidence to support the commission's findings, there has been no abuse 

of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond 

Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the 

weight to be given evidence are clearly within the discretion of the commission as fact 

finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). 
No. 14AP-82 15 

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

claimant's ability to do any sustained remunerative employment. State ex rel. 

Domjancic v. Indus. Comm., 69 Ohio St.3d 693 (1994). Generally, in making this 

determination, the commission must consider not only medical impairments but also 

the claimant's age, education, work record and other relevant non-medical factors. 

State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's 

medical capacity to work is not dispositive if the claimant's non-medical factors 

foreclose employability. State ex rel. Gay v. Mihm, 68 Ohio St.3d 315 (1994). The 

commission must also specify in its order what evidence has been relied upon and 

briefly explain the reasoning for its decision. State ex rel. Noll v. Indus. Comm., 57 Ohio 

St.3d 203 (1991). 

{¶ 47} Relator first argues that Dr. Altic's report is conclusory and does not offer 

any scientific or medical analysis of the effect of the impairment on claimant. Relator 

cites this court's decision in State ex rel. Findlay Indus. v. Indus. Comm., 10th Dist. No. 

09AP-52, 2009-Ohio-4384 and Ohio Adm.Code section 4121-3-34(C)(1). For the 

reasons that follow, the magistrate finds that this case and code section do not require 

that Dr. Altic's report be removed from evidentiary consideration. 

{¶ 48} In Findlay Indus., this court adopted the decision of its magistrate 

including the determination that the report of Dr. Miller did not constitute some 

evidence upon which the commission could rely to award PTD compensation to Karen 

Fuson. Specifically, this court stated: 

First, turning to the report of Dr. Miller, the magistrate notes 

that relator is correct in pointing out that some of the 

statements in his report are not given within a reasonable 

degree of medical certainty or probability. The following 

statements are problematic: (1) "the patient is * * * unlikely 

to be able to sustain employment based on her somatic style, 

persistent pain, and fixation / over-identification with the 

sick rule"; (2) "[m]y guess is that she will never be able to 

return to work based on the combination of pain and 

emotional distress"; (3) "I do not think that she will be able 

to sustain any sort of employment based on her vacillating 

agitation, somatic style and focus, irritability, and sense of 

feeling disabled"; and (4) "I believe that her vacillating 
No. 14AP-82 16 

symptomatology supports the notion that she will remain 

permanently disabled." 

The above four sentences are problematic because they are 

prefaced with words such as "unlikely," "my guess," "I do not 

think," and "I believe." The use of those words does not 

demonstrate any certainty or probability and, for those 

reasons, Dr. Miller's report is compromised. Dr. Miller also 

stated that "[t]he claimant is not capable of full-duty work"; 

however, nowhere in Dr. Miller's report did he address the 

psychological limitations resulting from claimant's allowed 

psychological condition. As such, Dr. Miller's report does not 

comply with the requirements of Ohio Adm.Code 4121-3-

34(C)(1) which provides, in pertinent part: 

Each application for permanent total disability shall be 

accompanied by medical evidence from a physician, or a 

psychologist or a psychiatric specialist in a claim that has 

been allowed for a psychiatric or psychological condition, 

that supports an application for permanent and 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 and/or mental limitations resulting 

from the allowed conditions in the claim(s). 

For these reasons, Dr. Miller's report does not constitute 

some evidence upon which the commission could properly 

rely to support an award of PTD compensation. 

Id. ¶ 26-28. 

{¶ 49} Dr. Altic's report does not present the same problems which Dr. Miller's 

report presented. The opinions in Dr. Miller's report were not given within a reasonable 

degree of medical certainty or probability. Instead, Dr. Miller's opinions were 

inconclusive and did not support an award of PTD compensation. By comparison, Dr. 

Altic's report specifically indicates that claimant's allowed conditions render him 

permanently and totally disabled. 

{¶ 50} Relator also contends that Dr. Altic's report fails to satisfy the 

requirements of Ohio Adm.Code 4121-3-34(C)(1), above quoted because he fails to 

address claimant's limitations. However, the magistrate specifically notes that Dr. Altic 

was claimant's physician of record and specifically opined that given claimant's 
No. 14AP-82 17 

radicular complaints, impaired range of motion of the lumbar spine, and chronic pain, 

he was incapable of performing some sustained remunerative employment. The 

magistrate finds that Dr. Altic's statements are sufficient to satisfy the minimum 

requirements of the Ohio Administrative Code. As such, Dr. Altic's report constitutes 

some evidence upon which the commission could rely to find that claimant was 

permanently and totally disabled. 

{¶ 51} Relator also contends that the commission abused its discretion by relying 

on the report of Dr. Fisher because the commission characterized Dr. Fisher's report as 

concluding that claimant was capable of less than sedentary activities. Relator contends 

that this is a clear mistake of fact. Relator asserts that Dr. Fisher's limitations on 

claimant's ability to lift no more than five pounds on a frequent basis and no more than 

ten pounds on an occasional basis fall squarely within the definition of sedentary 

employment. Relator does not contend that there is any flaw in Dr. Fisher's report. 

Instead, relator argues that the commission abused its discretion when it determined 

that he opined that claimant was capable of performing less than sedentary work. 

{¶ 52} Ohio Adm.Code 4121-3-34(B)(2)(a) states: 

"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. 

{¶ 53} When reading the above definition for sedentary work, it must be 

remembered that a job is classified as "sedentary" provided that the job does not require a 

person to lift more than ten pounds of force occasionally and/or a negligible amount of 

force frequently to lift, carry, push, pull, or otherwise move objects. Not all sedentary jobs 

require a person to lift ten pounds of force occasionally; however, a job cannot be 

classified as sedentary if it requires one to exert more than ten pounds of force 

occasionally. 
No. 14AP-82 18 

{¶ 54} Relator is correct to note that the lifting restrictions imposed by Dr. Fisher 

fit within the definition of sedentary work. While Dr. Fisher did put additional 

limitations on claimant, specifically indicating that he refrain from bending and twisting 

at waist level, those restrictions do not necessarily indicate that claimant is capable of 

less than sedentary work. It must be remembered that the definition of sedentary work 

identifies the maximum level of exertion which a job can have and still be considered 

sedentary. Here, the magistrate does not find the commission's characterization of Dr. 

Fisher's report to be fatal. 

{¶ 55} Arguably, the commission overstated Dr. Fisher's report slightly. 

However, even if Dr. Fisher's report is removed from evidentiary consideration, the 

report of Dr. Altic still constitutes some evidence upon which the commission could rely 

to find that, solely as a result of the allowed conditions in his claim, claimant was 

permanently and totally disabled. If Dr. Fisher's report remains in evidentiary 

consideration, the magistrate notes that the commission also relied on the employability 

assessment of Mr. Phillips. While it is true that the commission is considered the 

vocational expert and does not need to consider or rely on any vocational expert, if 

vocational reports extensively discuss and analyze all relevant non-medical factors, the 

commission does not need to repeat the analysis in its order. See State ex rel. Hunt v. 

Indus. Comm., 10th Dist. No. 94APD11-1659 (Sept. 28, 1995) (memorandum decision) 

and State ex rel. Freeman v. Indus. Comm., 10th Dist. No. 97APD02-251 (Mar. 17, 1998) 

(memorandum decision). To the extent that relator also argues that this court should 

apply the holding from Findlay Indus., discussed relative to Dr. Altic's report, the 

magistrate disagrees. The requirement that physicians must state their opinions within 

a reasonable degree of medical certainty does not extend to opinions rendered by 

vocational specialists. 

{¶ 56} Based on the foregoing, it is this magistrate's decision that the commission 

did not abuse its discretion when it granted permanent total disability compensation to 

claimant Donald Siegfried and this court should deny relator's request for a writ of 

mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA BROOKS 
No. 14AP-82 19 

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).