State ex rel. Arnold v. Bur. of Workers' Comp.

[Cite as State ex rel. Arnold v. Bur. of Workers' Comp., 2014-Ohio-1957.]
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Brenda Arnold, :

Relator, :
No. 13AP-355
v. :
(REGULAR CALENDAR)
Bureau of Workers' Compensation :
and Industrial Commission of Ohio,
:
Respondents.
:

D E C I S I O N

Rendered on May 8, 2014

Regas & Haag, Ltd., and John S. Regas, for relator.

Mann & Carducci Co., LPA, Jay Hurlbert, and Robert
Mann, Special Counsel for respondent Bureau of Workers'
Compensation.

Michael DeWine, Attorney General, and Eric J. Tarbox, for
respondent Industrial Commission of Ohio.

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.
{¶ 1} Relator, Brenda Arnold ("claimant"), 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 that denied permanent total
disability ("PTD") compensation and to enter an order granting said compensation.
{¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
No. 13AP-355 2

appended decision, including findings of fact and conclusions of law, and recommended
that this court deny claimant's request for a writ of mandamus. Claimant has filed
objections to the magistrate's decision.
{¶ 3} In her objections, claimant reiterates the arguments she presented to the
magistrate. Claimant argues in her first objection that the magistrate erred when she
found that the staff hearing officer ("SHO") appropriately analyzed the additional
restrictions set forth by Dr. Naomi Waldbaum. Specifically, claimant asserts that the SHO
completely failed to address how the additional restrictions set forth by Dr. Waldbaum
would affect her ability to perform light and sedentary work. We disagree. Although we
agree that the commission must review a doctor's report and make certain that any
physical restriction indicated by a doctor corresponds with the ability to perform at the
exertional level indicated by the doctor, as we held in State ex rel. O'Brien v. Cincinnati,
Inc., 10th Dist. No. 07AP-825, 2008-Ohio-2841, claimant fails to cite any authority for the
proposition that the commission must make a specific finding or explicitly indicate it
performed an analysis regarding such in its order. The magistrate found that Dr.
Waldbaum's additional restrictions were not inconsistent with the definitions of sedentary
and light work. Given there was no conflict between Dr. Waldbaum's report and the
definitions of sedentary and light work, it was proper for the magistrate to conclude Dr.
Waldbaum's report provided some evidence to support the SHO's decision. Therefore, we
overrule claimant's first objection.
{¶ 4} Claimant argues in her second objection that the magistrate erred when she
found that the additional restrictions set forth by Dr. Waldbaum are consistent with the
ability to perform light and sedentary work. Claimant argues that both work levels,
according to their regulatory definitions, require an individual to exert a certain amount
of force and include some element of pushing and pulling, while Dr. Waldbaum indicated
that claimant could not push or pull or perform repetitive movements with her hands,
wrists, and fingers.
{¶ 5} However, the magistrate concluded that the commission did not err because
claimant could perform some level of light and sedentary work. With regard to sedentary
work, the magistrate found that there are sedentary jobs that do not require any repetitive
hand/wrist/finger movements or pushing and pulling with upper extremities; thus,
No. 13AP-355 3

claimant can perform those jobs. With regard to light work, the magistrate found that
there are jobs that fit within Dr. Waldbaum's additional restrictions because light work
can include jobs that would be otherwise sedentary but that require walking or standing
to a significant degree; thus, because claimant can perform some sedentary jobs and she
had no walking or standing restrictions, there are also light jobs she can perform.
{¶ 6} Although claimant complains that it is difficult to understand how the
magistrate could find that Dr. Waldbaum's restrictions would not significantly
compromise or completely erode an individual's ability to do light and sedentary work,
the magistrate did not make such a finding. Undoubtedly, the restrictions listed by Dr.
Waldbaum would significantly affect one's work abilities. What the magistrate found was
that, despite these significant restrictions, there still exist jobs within the limitations of the
definitions for light and sedentary work. Furthermore, despite claimant's contention that
both sedentary and light work necessarily require pushing and pulling, claimant provides
no authority to support such conclusion. For these reasons, we must overrule claimant's
second objection.
{¶ 7} Claimant argues in her third objection that the magistrate erred when she
found that Dr. Waldbaum's restrictions are specific and not ambiguous or vague. The
magistrate distinguished State ex rel. Seitaridis v. Indus. Comm., 10th Dist. No. 10AP-
494, 2011-Ohio-3593, by finding the doctor's restrictions in Seitaridis were ambiguous,
while Dr. Waldbaum's restrictions were specific. Claimant contends that Dr. Waldbaum's
use of "repetitive" was likewise vague because the definitions of light and sedentary work
refer to "occasional" and "frequent," so it is unclear whether Dr. Waldbaum meant
"repetitive" to be occasional, frequent or constant. However, such a distinction is not
relevant in this case. Whether Dr. Waldbaum meant "repetitive" to include repetitive
movements at all three frequencies does not alter the magistrate's finding that jobs
existed that did not require any repetitive hand/wrist/finger movements or pushing and
pulling with upper extremities. Therefore, this argument is without merit.
{¶ 8} Claimant also argues that the facts in Seitaridis are identical to those in the
present case, and Seitaridis stands for the proposition that it is legal error for an SHO to
fail to analyze how upper extremity limitations would limit an individual's ability to
perform light work activity. We disagree with claimant's contention. Although we stated
No. 13AP-355 4

in Seitaridis at ¶ 16 that "the magistrate erred in not addressing the fact that the SHO
failed to analyze how or if upper extremity limitations would limit relator's ability to
perform light-work activity," the error was caused by the fact that the doctor's statement
"restrictions limited with use of right upper extremity" was vague, and we did not know
whether the "restrictions" referred to meant those outlined in the regulatory definitions of
sedentary and light work. Id. at ¶ 6. The word "restrictions" was important because the
commission must base its decision on the specific restrictions imposed by the physician in
the body of the report rather than merely the exertional category identified by the doctor.
Seitaridis at ¶ 14, citing State ex. rel. Howard v. Millennium Inorganic Chemicals, 10th
Dist. No. 03AP-637, 2004-Ohio-6603. Unable to determine whether "restrictions," as
used by the doctor in Seitaridis, referred to the restrictions included in the regulatory
definitions of sedentary and light work, we found the magistrate erred by not addressing
the SHO's failure to analyze how or if upper extremity limitations would limit the
claimant's ability to perform light work activity.
{¶ 9} However, the same vagueness problem is not present here. In the current
matter, Dr. Waldbaum's additional limitations clearly referred to the restrictions provided
in the regulatory definitions of light and sedentary work. Because Dr. Waldbaum's
limitations were clear, in this respect, neither the commission nor the magistrate were
required to further analyze whether Dr. Waldbaum's limitations would limit claimant's
ability to perform sedentary and light work. In this case, we know Dr. Waldbaum opined
that these limitations would limit claimant's ability. The commission and the magistrate
both found that, however, these limitations did not fully preclude sedentary or light work.
Therefore, this argument is without merit, and claimant's third objection is overruled.
{¶ 10} After an examination of the magistrate's decision, an independent review of
the record, pursuant to Civ.R. 53, and due consideration of claimant's objections, we
overrule the objections and adopt the magistrate's findings of fact and conclusions of law.
Claimant's writ of mandamus is denied.
Objections overruled;writ of mandamus denied.

SADLER, P.J., and TYACK, J., concur.

___________________
No. 13AP-355 5

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Brenda Arnold, :

Relator, :

v. : No. 13AP-355

Bureau of Workers' Compensation : (REGULAR CALENDAR)
and Industrial Commission of Ohio,
:
Respondents.
:

MAGISTRATE'S DECISION

Rendered on February 11, 2014

Regas & Haag, Ltd., and John S. Regas, for relator.

Mann & Carducci Co., LPA, Jay Hurlbert and Robert Mann,
for respondent Bureau of Workers' Compensation.

Michael DeWine, Attorney General, and Justine S. Casselle,
for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶ 11} Relator, Brenda Arnold, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent the Industrial Commission of Ohio
("commission") to vacate its order which denied relator's application for permanent total
disability ("PTD") compensation and ordering the commission to grant her that
compensation.
No. 13AP-355 6

Findings of Fact:
{¶ 12} 1. Relator sustained a work-related occupational injury with a date of
diagnosis of January 28, 2002. Her workers' compensation claim has been allowed for
the following conditions:
Right biceps tendonitis; right elbow lateral epicondylitis;
bilateral carpal tunnel syndrome; dequervains syndrome,
right; trigger finger left fourth finger; trigger finger right
thumb; radial styloid tenosynovitis, left.

{¶ 13} 2. Relator has undergone four surgeries. Specifically, in 2002, relator
underwent bilateral carpal tunnel surgery; in 2004, she underwent De Quervain's surgery
of trigger finger; in 2007, she underwent trigger finger release on right; and in 2010, she
underwent trigger release of her right thumb. Relator underwent physical therapy after
her surgeries and uses bilateral wrist splints.
{¶ 14} 3. Because of increasing difficulties performing her tasks as an
administrative secretary, relator took an early retirement in December 2011.
{¶ 15} 4. Relator filed her application for PTD compensation on August 24, 2012.
{¶ 16} 5. In support of her application, relator submitted the June 6, 2012 report
of her treating physician Sean Zimmer, M.D., who stated as follows:
Brenda Arnold has been seen over the last two years with
significant overuse syndrome that has included bilateral de
Quervain's teonosynovitis along with bilateral carpal tunnel
syndrome and hand triggering. These conditions have been
significantly disabling. She has undergone significant
operative treatment in the past, but has had continued
symptoms. Any type of reparative labor is giving her
significant disability. She has had repeated injection and had
kept her symptoms at bay, but if any type of reparative work
is undertaken it will be very difficult and it will significantly
exacerbate her symptoms. She has underlying arthritic
changes in both hands and at her age it is my opinion that
she will not be able to entertain any significant future
employment.

{¶ 17} 6. Relator also submitted a report from Timothy Lee Hirst, M.D. In his
July 12, 2012 report, Dr. Hirst identified the medical records which he reviewed, and
provided the following relevant objective findings:
No. 13AP-355 7

Attention to the right wrist shows a 2.6 cm scar from surgery.
There is pain over the radial side of the wrist. The Color,
temperature, and hair growth of the hand are otherwise
normal except for some coolness of the distal fingers and
thumb. There are no sores on the skin and the nails are
normal. The wrist measures 17 cm. The Range of Motion of
the wrist shows a Plantar-Flexion of 31 degrees, an Extension
of 43 degrees, a Radial Deviation of 11 degrees, and an Ulnar
Deviation of 13 degrees. The grip strength is 37.34, and 31
Lbs. There is no sensory loss along the radial and ulnar-sided
digital nerves.

Attention to the left wrist shows 3 cm scar from surgery. The
Color, temperature, and hair growth of the hand are
otherwise normal except for some coolness of the distal
fingers and thumb. There are no sores on the skin and the
nails are normal. The wrist measures 17.2 cm. The Range of
Motion of the wrist shows a Plantar-Flexion of 18 degrees, an
Extension of 31 degrees, a Radial Deviation of 7 degrees, and
an Ulnar Deviation of 8 degrees. The grip strength is 14.12,
and 11 Lbs. There is no sensory loss along the radial and
ulnar-sided digital nerves.

The Range of Motion of the right thumb shows an IP Joint
Flexion of 46 degrees. IP Joint extension of 14 degrees. MP
Joint Flexion of 39 degrees, MP Joint Extension of (-8)
degrees. Adduction Lack of +1 cm. Abduction of 35 degrees,
and Opposition Lack of 0 cm.

The Range of Motion of left ring finger shows a DIP Joint
Flexion of 51 degrees and Extension of 0 degrees, a PIP Joint
Flexion of 72 degrees and Extension of 0 degrees, an MP
Joint Flexion of 61 degrees, and an MP Joint Extension of 16
degrees. The Color, temperature, and hair growth of the
hand are otherwise normal.

Dr. Hirst noted that relator had the following functional capabilities:
Lifting/Gripping is limited to 5 lbs occasionally with a
maximum of 10 lbs. rarely. Carrying/Gripping is limited to 5
lbs occasionally with a maximum of 10 lbs. rarely[.]

She drops things frequently due to pain and sudden loss of
strength.

Self Care: Limited for hair care, she cannot grip a back
brush, she has trouble with buttons and zippers, etc[.]
No. 13AP-355 8

Inside House: Light Housework for short periods as dusting.
She cannot prepare meals. She can wash only a few dishes
without pain and a long rest.

Outside: No yard work[.]

Sleep: Very interrupted with the hand, elbow, and upper
extremity pains. She often required a sleep aid as Ambien to
get to sleep due to the pain[.]

Drive: She can drive for 30-45 minutes, but it is painful to
grip the wheel. Normally [s]he does not drive unless there is
an urgent need and relies on others to transport her. Her
hands go numb frequently during driving.

{¶ 18} Ultimately, Dr. Hirst concluded that relator was permanently and totally

disabled, stating:

Discussion

The claimant has conditions which are permanent. She has
had 4 hand surgeries and she continues to worsen in terms
of function and pain. Because they involve both upper
extremities, she has been severely limited by these
conditions. She has trouble with pain in the upper
extremities, especially the hands, with any use or grasping.
She has lost substantial strength and as such cannot grip well
and drops things many times a days [sic]. Bending causes
such pain that she [sic] it wakes her at night and she is
chronically tired. With thumb and wrist involved, she has
almost no grip opposing the thumb and index finger. As
such, she has trouble with many self care items. She can do
so little work that there is no reasonable employer who
would hire her for any work that she could do. The sudden
pain and dropping things would make her a hazard for
herself and others in a work environment.

Conclusion

This claimant has an injury that is permanent and for which
there is no curative therapy. This claimant has progressively
suffered loss of function and has had to endure progressively
more pain. The exam above shows that there is so little
functional capacity and that the claimant is so affected by her
condition and its required care, that there is no capacity for
No. 13AP-355 9

sustained remunerative employment and that there is no
reasonable employer that would ever hire the claimant
expecting any work capacity.

{¶ 19} 7. Relator was examined by Robert F. Shadel, M.D. In his September 20,
2012 report, Dr. Shadel identified the medical records which he reviewed and provided
the following relevant physical findings:
Examination of wrist shows bilateral flexion of 50 degrees
and extension 40 degrees. Her strength is near normal at 5-
forward flexion and extension. She has a well-healed anterior
surgical scars and lateral right wrist surgical scar. Median
nerve compression reveals no median nerve distribution
symptoms at all with only some noted numbness-type
sensation right over the incisions at the carpal tunnel region
only. Tinel's testing is negative at each median nerve at the
wrist. She has a negative Finkelstein's test bilaterally. Her
thumb flexion and extension and abduction is at full strength
bilaterally. She has no thumb deformities and has near
normal motion with 80 degrees of MP joint flexion and IP
flexion of 50 degrees and full extension.

Throughout all her digits of both hands, there is no
triggering with repetitive flexion and extension of all her
digits. She has no deformities or significant loss of hip
flexion or extension at her MP, PIP, or DIP joints of each her
digits in both hands. Strength testing shows 5-finger grip
strength bilaterally, full lateral pinch of 5 bilaterally, and
decreased tip pinched bilaterally of 4 only.

Ms. Arnold has minimal ongoing findings of bilateral carpal
tunnel syndrome manifested by mild decreased two-point
discrimination that is now worse than her ulnar or radial
nerves. She has negative provocative median nerve testing at
the wrist. She has only decreased tip pinch bilaterally.

Ms. Arnold has no objective findings of any ongoing right de
Quervain’s syndrome with negative Finkelstein’s test. No
swelling or tenderness over either thumb extensor or
abductor tendon and with no significant loss of strength or
function.

Ms. Arnold has no findings of any trigger finger in her left
fourth finger or right thumb at all following successful
surgical treatment of each of these conditions.
No. 13AP-355 10

Finally, Ms. Arnold has no ongoing objective findings of any
left radial styloid tenosynovitis with negative Finkelstein’s
test and negative objective findings of any pain, swelling, or
tenderness or dysfunction of thumb extensor or abductor
tendon.

Thus, for the allowed claim conditions, Ms. Arnold has no
disabling conditions. She is quite capable of returning to
sustained remunerative employment in numerous jobs. Her
only necessary permanent restrictions are repetitive and
forceful pinching.

{¶ 20} Thereafter, Dr. Shadel opined that relator's allowed conditions had reached
maximum medical improvement ("MMI"), found that she had no disabling conditions
and was capable of returning to sustained remunerative employment in numerous jobs.
He noted that her only necessary permanent restrictions consisted of no repetitive and
forceful pinching. Dr. Shadel concluded that she was not permanently and totally
disabled.
{¶ 21} 8. Relator was also examined by Naomi Waldbaum, M.D. In her
November 20, 2012 report, Dr. Waldbaum identified the medical records which she
reviewed, and provided the following objective findings:
Evaluation of the upper extremities reveals normal reflexes.
There is mild diminished perception to pin prick over the
volar surface of the distal fingers in both hands. There are
negative Tinels at the wrists and the elbows. She is able to
put both hands behind her head and behind her back in a
functional manner. There is slight tightness at the wrist with
no crepitation, pain or diminished range of motion noted.
Both elbow joints show no diminished range of motion or
crepitation but she did complain of mild discomfort on the
right on flexion/extension at the elbow. She has -5 degrees of
full wrist extension with normal flexion, inversion and
eversion. She is able to hold a bulb dynamometer which
measures 20 on the right, 15 on the left, with a lot of
straining. She is able to oppose the thumbs to second, third,
fourth, and fifth fingers after several tries. There was no
weakness in finger abduction/adduction. Extending the right
wrist she did complain of discomfort along the dorsal
forearm and there is sensitivity on palpation with slight
nodularity suggesting chronic De Quervain's tenosynovitis.
Similar findings are minimal on the left.
No. 13AP-355 11

{¶ 22} Dr. Waldbaum noted that relator's carpal tunnel syndrome and trigger
finger conditions had been successfully treated. She opined that relator was wearing
inappropriate braces and that, if appropriate braces were used, her De Quervain's
syndrome might quiet down. Dr. Waldbaum also noted that relator did have symptoms
on the left side, but had declined further carpal tunnel syndrome surgery. As such, she
opined that relator's allowed conditions had reached MMI. Dr. Waldbaum was unable to
use the grip strength measurement table to estimate relator's impairment because, in her
opinion, relator appeared to be exerting less than maximal effort. Dr. Waldbaum opined
that relator had a 6 percent whole person impairment and that she could perform
sedentary work with the following limitations:
No repetitive hand/wrist/finger movements[.] No push[/]
pull movements with [upper extremities].

{¶ 23} 9. Relator's application was heard before a staff hearing officer ("SHO") on
February 13, 2013. The SHO relied on and discussed Dr. Waldbaum's report, stating:
The Injured Worker contracted an occupational disease
while working as an executive secretary for the Bureau of
Workers' Compensation. The Injured Worker suffered right
and left upper extremity problems. The Injured Worker was
examined by Naomi Waldbaum, M.D. on 11/20/2012. Dr.
Waldbaum issued a report on 11/26/2012. Dr. Waldbaum
notes the Injured Worker underwent bilateral carpal tunnel
syndrome release surgery and also had surgery for trigger
finger of the left fourth finger and right thumb. The Injured
Worker also underwent surgery for Dequervain's Syndrome.
Dr. Waldbaum notes the Injured Worker wears splints when
she drives and during the evenings. Dr. Waldbaum notes the
Injured Worker is able to drive an automobile and the
Injured Worker testified that she does drive. The Injured
Worker further testified she takes martial arts classes once
per week. Dr. Waldbaum assigned a 6% whole person
impairment and completed a physical strength rating report
on 11/26/2012. Dr. Waldbaum finds the Injured Worker
retains the ability to perform light work activity with the
following restrictions: no repetitive hand/wrist/finger
movements, no pushing and pulling movements with her
upper extremities. The opinion of Dr. Waldbaum is found
persuasive and is supported by her physical findings. Thus,
the Staff Hearing Officer concludes the Injured Worker can
perform light and sedentary work activity with the additional
restrictions outlined by Dr. Waldbaum.
No. 13AP-355 12

Light work activity is defined as follows: Light Work means
exerting up to 20 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: 1) when i[t] requires walking or standing to a
significant degree; or 2) when it requires sitting most of the
time but entails pushing and/or pulling or arm or leg
controls, and/or 3) 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.

{¶ 24} Thereafter, the SHO addressed the non-medical disability factors and
concluded that relator was capable of performing some sustained remunerative
employment within the restrictions of no repetitive hand/wrist and finger movement and
no push/pull with upper extremities as set forth by Dr. Waldbaum. Specifically, the SHO
stated:
The Injured Worker is 63 years of age. Many employers
prefer seasoned workers with maturity and experience.
Moreover, age alone is never a total bar to employment.

The Injured Worker's education level is a positive factor. The
Injured Worker graduated from high school. Possession of a
high school diploma is an asset in the work force and
evidences the Injured Worker's mental acumen to complete
basic tasks associated with entry-level sedentary and light
work. Additionally, the Injured Worker reported on the IC-2
application that she can read, write, and perform basic math
equations. These skills are helpful in the performance of
entry-level sedentary and light work.

Additionally, the Injured Worker testified she completed
classes after high school and obtained her associates degree
in 1968 from Finn College. The Injured Worker testified this
degree was for secretarial science. The ability for the Injured
Worker to complete college level classes is a positive factor.
Generally, individuals with this level of education are able to
successfully perform basic tasks associated with entry-level
sedentary and light employment.
No. 13AP-355 13

The Injured Worker's work experience is also a positive
factor. The Injured Worker was able to use her post high
school education in secretarial science in her chosen
profession as a secretary. The Injured Worker worked as a
legal secretary from 1968 through 1975. She also worked as a
secretary for a seven step foundation in 1978. The Injured
Worker also worked as a secretary for a United Labor Agency
from 1978 through 1981. Lastly, the Injured Worker testified
she worked as an Administrative Secretary from 1982
through 2011. It is significant that the Injured Worker
reported that she worked as a supervisor for the named
Employer, reporting that she supervised up to fifteen
employees.

The ability to direct and control others is a positive
temperament in an employment setting. Clearly, the Injured
Worker has a solid, lengthy history of employment of over 40
years, including supervisory experience. This accomp-
lishment is evidence of the Injured [W]orker's strong work
ethic.

The Injured Worker testified she performed a host of job
duties, including: shorthand, typing, filing, scheduling
appointments, and preparing letters. The Injured Worker
used a computer in her job as well as other various office
equipment. The Injured Worker testified she currently has a
computer in her home. The Injured Worker reported that she
has knowledge of basic computer programs. The Injured
Worker's work history is a positive factor. The Injured
Worker has demonstrated numerous positive temperaments
in her skilled and highly skilled positions, including:
performing a variety of tasks, performing detailed work,
proofreading, editing and grammatical skills, verbal
communication skills, telephone communication skills, the
ability to learn computer programs, supervising and
controlling others, and clerical and form perception abilities.

Given the Injured Worker's completion of college level
course work, a solid work history consisting of skilled and
highly skilled positions in a supervisory role, the Staff
Hearing Officer finds the Injured Worker retains the basic
skills necessary to complete entry-level sedentary and light
work within the restrictions outlined by Dr. Waldbaum.
Accordingly, the Injured Worker's disability is not total in
nature and the application for permanent and total disability
benefits is denied.
No. 13AP-355 14

{¶ 25} 10. Relator's request for reconsideration was denied by order of the
commission mailed April 10, 2013.
{¶ 26} 11. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 27} Relator contends that the commission abused its discretion by failing to
evaluate how the additional restrictions noted by Dr. Waldbaum are consistent with an
ability to perform light and sedentary work. Relator contends that the additional
restrictions are inconsistent with an ability to perform light and sedentary work.
{¶ 28} The magistrate finds that the situation presented here is distinguishable
from the situations presented in the cases which relator cites. Therefore, as will be
discussed below, the magistrate finds that relator's argument is not well taken.
{¶ 29} 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).
{¶ 30} 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).
{¶ 31} 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 one-
third to two-thirds of the time) to lift, carry, push, pull, or
No. 13AP-355 15

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.

{¶ 32} 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 exert 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.
(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: (1) when it
requires walking or standing to a significant degree; or (2)
when it requires sitting most of the time but entails pushing
and/or pulling or arm or leg controls; and/or (3) 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.

{¶ 33} When reading the above definition of light work, it must be remembered
that a job is classified as "light" provided that the job does not require a person to exert
more than 20 pounds of force occasionally, and/or up to 10 pounds frequently, and/or a
negligible amount of force constantly. A job is still considered light when it requires a
significant amount of standing or walking, or sitting most of the time while using arm/leg
controls, and/or requires working at a production pace with constant pushing and/or
pulling.
{¶ 34} The SHO relied exclusively upon the medical report of Dr. Waldbaum who
opined that relator was capable of performing at sedentary and light-duty levels with the
following restrictions: (1) no repetitive hand/wrist/finger movements, and (2) no
push/pull movements with her upper extremities. Relator cites this court's decision in
State ex rel. Howard v. Millennium Inorganic Chems., 10th Dist. No. 03AP-637, 2004-
No. 13AP-355 16

Ohio-6603, for the proposition that the commission cannot simply rely on a physician's
"bottom line" classification of an exertional capacity, but the commission must also
consider the specific restrictions imposed by the physician. Id. at ¶ 9. Where a
physician imposes specific restrictions, "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." State ex rel. O'Brien v. Cincinnati Inc., 10th
Dist. No. 07AP-825, 2008-Ohio-2841, ¶ 10.
{¶ 35} In Howard, the commission relied on the report of John Dobrowski, M.D.,
who opined that Howard's overall impairment could easily be set at 90 percent of the
whole person. He found that Howard had a severe breathing impairment that, by itself,
rendered him more than 50 percent disabled, and he further opined that the shortness
of breath was aggravated by activities beyond personal cleansing, grooming, and the
equivalent. Dr. Dobrowski also gave a detailed description of Howard's substantial
incapacities in speech, which caused additional impairment. On an accompanying
checklist form, Dr. Dobrowski indicated that Howard was "capable of physical work
activity" and indicated that Howard was capable of activity at the sedentary level. Id. at
18.
{¶ 36} This court agreed with its magistrate who found that the restriction-
related findings contained in Dr. Dobrowski's report seemed inconsistent with the
possibility of Howard maintaining sustained remunerative employment. This court
applied the decision from State ex rel. Libecap v. Indus Comm., 83 Ohio St.3d 178
(1998) and stated:
Libecap has been cited for the proposition that, "where a
physician places the claimant generally in the sedentary
category but has set forth functional capacities so limited
that no sedentary work is really feasible * * * then the
commission does not have discretion to conclude based on
that report that the claimant can perform sustained
remunerative work of a sedentary nature." State ex rel.
Owens Corning Fiberglass v. Indus. Comm., 10th Dist. No.
03AP-684, 2004-Ohio-3841, ¶ 56. The "commission cannot
simply rely on a physician's 'bottom line' identification of an
exertional category but must base its decision on the specific
No. 13AP-355 17

restrictions imposed by the physician in the body of the
report." Ibid. The court in Owens Corning went on to
explain:

In Libecap, the problem was not that the doctor's report was
defective because claimant was placed in the sedentary
category. Doctors may be unaware of legal criteria and the
doctor in that case had set forth clear and unambiguous
functional restrictions in his discussion that would permit
short periods of sedentary activity. Rather, the problem was
with the commission's finding of capacity for sedentary,
sustained remunerative employment based on a report that,
read in its entirety, clearly precluded sustained remunerative
employment of a sedentary nature.

Conversely, where a physician's checklist states that the
claimant is medically precluded from performing any
sustained remunerative employment but where the narrative
report, read in its entirety, clearly and unambiguously sets
forth a capacity for sustained remunerative employment,
then the commission lacks discretion to rely on that report
for a finding of medical inability to perform any sustained
remunerative employment.

Id. at ¶ 56-57. (Emphasis sic.)

"[F]unctional abilities may be so limited that only brief
periods of work activities would be possible, which would not
constitute sustained remunerative employment. * * * [That
is,] regardless of the fact that the physician placed claimant
in the ‘sedentary’ category, the specific restrictions [may be]
so narrow as to preclude sustained remunerative
employment." State ex rel. Clevite Elastomers v. Torok, 10th
Dist. No. 02AP-116, 2002-Ohio-4770, ¶ 14.

Howard, at ¶ 9-10.

{¶ 37} Relator maintains that Dr. Waldbaum's restrictions preclude an ability to
perform light-duty work because "virtually the whole definition of light work activity
involves pushing or pulling of objects" and "if an individual has no ability to push or pull,
* * * and an individual has no ability to repetitively use their hands, wrists or fingers,"
there are virtually no sedentary or light exertional jobs that they can perform.
{¶ 38} In reviewing the definitions of both sedentary and light-duty work, it must
be remembered that these definitions constitute the upper limits of the force required in
No. 13AP-355 18

a job for that job to still be considered sedentary or light by definition. See State ex rel.
Boyle v. Indus. Comm., 10th Dist. No. 02AP-647, 2003-Ohio-581. Dr. Waldbaum's
restrictions are not inconsistent with the definitions of sedentary and light work. The
upper limits of sedentary work involve exerting up to ten pounds of force occasionally
(up to one-third of the time) and/or a negligible amount of force frequently (one-third
to two-thirds of the time) to lift, carry, push, pull or otherwise move objects.
{¶ 39} Dr. Waldbaum's restrictions involve no repetitive hand/wrist/finger
movements and no pushing or pulling with relator's upper extremities. Considering the
definition of sedentary work, the magistrate finds that the restrictions of Dr. Waldbaum
are not inconsistent with that definition and to the extent that the commission found
that relator was capable of performing at a sedentary level, the commission did not
abuse its discretion in finding that there are sedentary jobs which can be performed and
which do not require any repetitive hand/wrist/finger movements or pushing and
pulling with upper extremities.
{¶ 40} Relator's strongest argument involves her assertion that the restrictions
preclude her from performing light work. Relator believes that virtually the whole
definition of light work activity involves pushing or pulling of objects. A review of the
definition of light work reveals that is not true. The upper limits of light work mean
exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force
frequently, and/or a negligible amount of force constantly to move objects. Jobs are
rated light work which (1) require walking or standing to a significant degree; or (2)
require sitting most of the time, but involve pushing and/or pulling of arm or leg
controls; and/or (3) when the job requires working at a production rate pace entailing
the constant pushing and/or pulling of materials.
{¶ 41} The magistrate finds that the plain definition of light work would include
jobs that would otherwise be considered sedentary, but which require walking or
standing to a significant degree. Contrary to relator's assertions, pushing and/or pulling
of arm or leg controls is not required and is only considered if the job requires sitting
most of the time. Relator has no restrictions concerning standing or walking. A job can
be classified as light duty and not require any pushing and/or pulling nor using a
negligible amount of force constantly.
No. 13AP-355 19

{¶ 42} Relator contends that the factual situation in her case is virtually identical
to the factual situation presented in State ex rel. Seitaridis v. Delta Plating, Inc., 10th
Dist. No. 10AP-494, 2011-Ohio-3593. For the reasons that follow, the magistrate
disagrees.
{¶ 43} In finding that Spiros Seitaridis was not entitled to an award of PTD
compensation, the commission relied on a report by Dr. Bond indicating that he could
perform light work and stating only: "restrictions limited with use of right upper
extremity." Id. at ¶ 6. Seitaridis argued that the SHO failed to analyze how upper
extremity limitations would limit his ability to perform light work activities. After citing
Howard, this court reiterated that, where the physician imposes specific restrictions,
the commission is required to review the doctor's report and make certain that any
physical restrictions the doctor provided correspond with an ability to actually perform
at the exertional level indicated by the doctor. This court specifically found that Dr.
Bond's restrictions of "limited with use of right upper extremity" was "ambiguous and
vague." Id. at ¶ 15. This court stated further:
The commission ultimately concluded that relator could
perform "nearly a full range of light work." We note that
"light work" involves either “exerting up to twenty pounds of
force," or "exerting up to ten pounds of force," "moving
objects," "pushing and/or pulling or arm * * * controls," or
"constant pushing and/or pulling of materials." See Ohio
Adm.Code 4121-3-34(B)(2)(b). The commission also
concluded that relator could perform a "full range of
sedentary work." "Sedentary work" involves either "exerting
up to ten pounds of force," or "exerting a negligible amount
of force * * * to lift, carry, push, pull or otherwise move
objects." See Ohio Adm.Code 4121-3-34(B)(2)(a). This court
questions whether these are the restrictions to which Dr.
Bond refers in noting "restrictions limited with use of right
upper extremity," and whether relator's impaired range of
motion, muscle strength (grip) or sensation prohibit him
from engaging in these activities. We do not know the answer
to these questions. Nor can we hypothesize answers as
neither we, nor the magistrate, are medical experts trained to
interpret the physician's findings.

Id. at ¶ 16.
No. 13AP-355 20

{¶ 44} Because Dr. Bond did not explain what the right upper extremity
restrictions were, this court found the restrictions ambiguous and vague and, because we
are not medical experts trained to interpret the physician's findings, this court would not
speculate as to what Dr. Bond meant.
{¶ 45} As noted previously, Dr. Waldbaum's restrictions are not ambiguous and
vague; instead, they are specific. Further, the magistrate finds that those restrictions do
not preclude relator from being able to perform sedentary or light-duty work and that
no further explanation was required.
{¶ 46} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied her application
for PTD compensation and this court should deny relator's request for a writ of
mandamus.

/S/ MAGISTRATE
STEPHANIE BISCA BROOKS

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).