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State ex rel American National Red Cross v. Smith10/25/2005
t 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 the 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. State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. 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. State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203.
{ } Relator contends that the commission abused its discretion by relying upon the medical reports of Drs. Gurley and Nemunaitis, and that the surveillance evidence demonstrates that claimant's physical capacities are significantly greater than what he reported and demonstrated to Drs. Gurley and Nemunaitis. For the reasons that follow, the magistrate finds that relator's arguments lack merit.
{ } Relator first challenges the August 8, 2003 report of Dr. Gurley and argues that Dr. Gurley used a functional capacity evaluation standard for sedentary work instead of the standard set out in Ohio Adm.Code 4121-3-34(B)(2)(a). Relator also contends that Dr. Gurley relied, at least in part, on the nonallowed condition of chronic pain syndrome.
{ } Ohio Adm.Code 4121-3-34(B)(2)(a) defines sedentary work as follows:
(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 one-third 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.
{ } In his August 8, 2003 report, Dr. Gurley made the following statements:
* * * t is my opinion that Mr. Clinton's Smith is permanently and totally disabled[.] * * * * * * * * * It is my opinion that, within the classifications of the functional capacity evaluation, he would not even be able to function with in a sedentary classification.
{ } Relator argues that nowhere in Dr. Gurley's report does he specifically define the "functional capacity evaluation." However, the magistrate notes that physical capacity evaluations are often completed by physicians on a form provided by the Ohio Bureau of Workers' Compensation. Those forms request that the doctor identify the physical work activity which the injured worker is capable of performing and includes the following categories: sedentary work, light work, medium work,
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