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State ex rel American National Red Cross v. Smith10/25/2005
ous difficulty or discomfort.
{ } 6. A vocational assessment was prepared by Mark A. Anderson, dated January 24, 2004. Mr. Anderson indicated that claimant has no transferable skills to sedentary work, was not physically capable of performing his prior job , and had a number of non-exertional limitations including:
* * * hronic constant pain in his neck and back which makes prolonged standing, sitting or walking difficult and painful. He relies on a cane to walk. He takes Oxycotin 3 times per day which makes him drowsy. Mr. Smith has also demonstrated poor manual dexterity abilities in regards to the Purdue Pegboard. His Math aptitude placed at the 3rd Grade Level while his Reading aptitude placed at the mid-4th Grade Level. His SRA Clerical aptitude placed below the 1st percentile.
Furthermore, Mr. Anderson indicated that claimant has demonstrated poor manual dexterity, no clerical aptitude, constant pain in the neck and back, an inability to stoop or bend, no transferable skills, difficulty with balancing, a limited ability to drive a car, and his reliance on medication to control pain and sleep, and concluded that claimant was capable of performing less than the full range of sedentary activities and that he was not employable in the local, state or national economies.
{ } 7. An employability assessment was prepared by Bruce S. Growick, Ph.D. Based upon the reports of Drs. Gurley, Jones, and Nemunaitis, Dr. Growick concluded that claimant was not employable. Dr. Growick noted that claimant's age would not be a detriment to employment, that his limited education could make it difficult for him to learn new skills, and that he has a steady work history; however, with no discernable transferable work skills, Dr. Growick indicated that claimant should be capable of learning and performing entry-level jobs at the sedentary or light levels with a sit/stand option.
{ } 8. On January 10, 2004, a staff hearing officer ("SHO") issued a tentative order granting claimant's application for PTD compensation based upon the December 8, 2003 report of Dr. Nemunaitis.
{ } 9. Relator objected and the application was heard before an SHO on June 24, 2004. At that time, the SHO rendered a decision granting PTD compensation to claimant based upon the reports of Drs. Gurley and Nemunaitis. The SHO also reviewed the videotape surveillance evidence submitted by relator and stated as follows:
The Staff Hearing Officer has reviewed and considered the videotaped surveillance evidence shown at the hearing. Claimant in the video appeared to walk with an altered gait and at one time he stumbled. The Staff Hearing Officer finds that the surveillance evidence does not rise to the level of supporting the employer's contention that claimant somehow deceived the examining physicians as to the extent and nature of his residual functional capacities.
The SHO indicated that the beginning date of the award would be September 9, 2003, the day after the last payment of temporary total disability compensation.
{ } 10. Relator's request for reconsideration was denied by order of the commission mailed July 28, 2004.
{ } 11. 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 that she has 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 tha
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