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State ex rel First Energy Corp. v. Stover6/11/2002
t claimant is able to engage in sustained remunerative employment in the sedentary or light category. The SHO also relied upon the vocational capacity evaluation prepared by Gearhart and Kahler for the conclusion that claimant does not have any transferable skills from her past work; that any jobs requiring reading or report writing would likely be very difficult for her; the fact that claimant's ability to pass the GED and complete the police academy training was remarkable given her actual abilities; that she had unsuccessfully attempted to retrain twice; that claimant does not possess average aptitude; and that claimant does not appear to be a good candidate for job retraining due to her low level basic skill level and limited physical capacity. As such, the commission granted claimant's application for PTD compensation.
14. Thereafter, relator filed the instant mandamus action in this court. Conclusions of Law:
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. (1967), 11 Ohio St.2d 141. 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. (1986), 26 Ohio St.3d 76. 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. (1987), 29 Ohio St.3d 56. 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. (1981), 68 Ohio St.2d 165.
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. (1994), 69 Ohio St.3d 693. 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. Stephenson, supra. 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 (1994), 68 Ohio St.3d 315. The commission must also specify in its order what evidence has been relied upon and briefly explain the reasoning for its decision. Noll, supra.
In this mandamus action, relator contends that the commission failed to adequately explain how claimant's age, work experience and education preclude her from engaging in sustained remunerative employment. Relator also contends that the commission failed to address claimant's ability to be retrained in light of her age, work experience and education. For the reasons that follow, this magistrate disagrees.
The commission relied upon the report of Dr. Purewal for the conclusion that claimant was capable of performing some sustained remunerative employment in the sedentary to light duty range. The commission also relied upon the vocational report prepared by Gearhart and Kahler. As part of that report, several vocational tests were administered to claimant and the results were explained in the report. It was noted, both in the vocational report and by the commission, that claimant's ability to complete her GED and complete training at the police academy was not indicative of her abilities. Both through the report of Gearhart and Kahler, and throu
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