dissenting.
{¶ 36} The majority has concluded that the court of appeals erred in its decision to affirm the Industrial Commission’s termination of Donald Lawson’s permanent total disability (“PTD”) benefits. The proper legal test to be applied in reviewing cases of this distinction is whether the record “contains some evidence which supports the commission’s factual findings.” State ex rel. Fiber-Lite Corp. v. Indus. Comm. (1988), 36 Ohio St.3d 202, 522 N.E.2d 548, syllabus. Upon review, I would assert that the record before us does contain some evidence supporting the commission’s findings. Accordingly, I respectfully dissent from the decision reached by the majority and would affirm the decision of the court of appeals.
{¶ 37} The record here reveals that Lawson received PTD compensation in 1995 for a lumbosacral strain, mild depression, and a herniated disc at L4-5, which resulted from a lower-back injury in 1975 while working for Mondie Forge. The Industrial Commission made the award after finding that Lawson’s limited education, lack of transferable work skills, and medical restrictions precluded him from sustaining remunerative employment. In its award of PTD, the Industrial Commission utilized the opinion of Dr. Jeffrey L. Mikutis, an orthopedic surgeon who examined Lawson. Mikutis opined that the claimant “would be expected to have difficulty in jobs lifting greater than 10 lbs, repeated bending, lifting objects from below the level of the knee, repeated rotary movements of the lumbar spine, [and] lifting objects above the level of the shoulders. * * * Walking greater than 10 to 15 minutes at a time or standing greater than this time would be likely to aggravate his discomfort.”
*46{¶ 38} The Bureau of Workers’ Compensation reopened Lawson’s case in 2001, and a staff hearing officer (“SHO”) examined evidence offered to refute Lawson’s PTD status consisting of a videotape, still photographs, numerous affidavits, documents, and an opinion of a medical expert. Investigators for the bureau demonstrated that Lawson had engaged in varied moderate physical activities between 1993 and 2001. The SHO determined that Lawson had “not been engaged in sustained remunerative employment.” The commission, however, vacated that order and determined that the SHO had made an error of law and had applied an incorrect legal standard. The commission therefore terminated PTD, declared all payments since May 14, 1994, to be overpayments, and determined that Lawson fraudulently obtained the PTD award. Lawson sought a writ of mandamus from the Tenth District Court of Appeals, compelling the commission to vacate its order and to reinstate his PTD. The court, however, denied the writ.
{¶ 39} To obtain a writ of mandamus, a relator must show a clear legal right to the relief requested and a clear legal duty on the part of the commission to provide the relief. State ex rel. Hughes v. Goodyear Tire & Rubber Co. (1986), 26 Ohio St.3d 71, 73, 26 OBR 61, 498 N.E.2d 459. “To show the clear legal right, relator must demonstrate that the commission abused its discretion by entering an order unsupported by some evidence in the record.” Id. When the record contains some evidence to support the commission’s factual findings, a court may not disturb the commission’s findings in mandamus. State ex rel. Fiber-Lite, 36 Ohio St.3d 202, 522 N.E.2d 548, syllabus. Furthermore, the commission alone has the responsibility of assessing evidentiary weight and credibility. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 20-21, 31 OBR 70, 508 N.E.2d 936.
{¶ 40} In light of this standard of review, I would assert that the record contains more than “some evidence” to support the commission’s factual findings. In fact, this record is replete with evidence that supports the commission’s decision to terminate Lawson’s PTD because he is capable of sustained remunerative employment.
{¶ 41} An investigator for the Bureau of Workers’ Compensation prepared a video showing Lawson and another person lifting a full-sized couch and loading it into the back of a dump truck during the West Elkton village clean-up day on April 28, 2001. Lawson lifted the couch above his head to get it over the sides of the dump truck, which stood six feet off the ground. After helping to hoist the couch into the truck bed, Lawson climbed into the bed, without displaying any pain or discomfort, and repositioned the couch with the help of another man. The video log and tape show Lawson repeatedly bending down to the ground to *47pick up pieces of debris of various weights and sizes, and then loading or hurling them into the back of the dump truck.
{¶ 42} After taping these activities, the bureau retained the services of Dr. David R. Dunkin, who reviewed Lawson’s file and the tape and observed that Lawson, over a two-hour period on April 28, 2001, loaded a broken eight-foot-long wooden table, a lawnmower, and a steel deck chair by hoisting the items over the side of the dump truck. Dunkin also reviewed videotape from May 5, 2001, showing Lawson “throwing a rope across a load of trash in the same truck and tightening it down to secure the load.”
{¶ 43} In his report, Dunkin opined that the documented acts exceeded Lawson’s medical restrictions in the PTD award. Lawson was “picking up items which far exceeded his 10 pound weight limit from the ground which also exceeded restrictions for repeated bending, twisting and lifting items below the level of his knee.”
{¶ 44} Dunkin concluded that Lawson had been documented “performing activities which far exceeded restrictions of activity which were the grounds for granting permanent and total disability * * * [and were] not consistent with the injured worker being permanently and totally disabled.”
{¶ 45} Despite the videotape and Dunkin’s opinion, the majority disputes the Industrial Commission’s findings because only some of Lawson’s acts exceeded his PTD restrictions. However, the law only requires “some” evidence to support the commission’s findings awarding or revoking PTD, and the record here contains more than just a videotape to support the commission’s decision. For instance, the bureau presented three affidavits from other townspeople who stated that Lawson frequently performed physical work, in addition to the videotaped activities during the village clean-up, all seemingly beyond his restrictions.
{¶ 46} For example, Charles Pennington, Mayor of West Elkton, stated that Lawson frequently helped load West Elkton’s dump truck with refuse. Pennington stated, “I have seen Lawson assist in loading the dump truck and he is the only person that takes the loads to the landfill.” Jerry Combs, Chief of the West Elkton Police Department, corroborated Pennington’s statement that Lawson loaded the truck on several occasions. “I have seen Lawson load and assist in loading the dump truck and haul the load to the landfill.”
{¶ 47} The “activity spreadsheet” created as result of the bureau’s investigation reveals that Lawson’s refuse loading, collection, and dumping were not isolated incidents. While the majority cites several six- or eight-month time periods in which Lawson made only five trips to the landfill, a closer examination reveals that Lawson made 17 such trips in 1995 — the year in which the commission awarded PTD — 19 trips in 1996, 23 trips in 1997, 21 trips in 1998, 23 trips in 1999, *4818 trips in 2000, and 9 trips in the first half of 2001. The bureau not only logged these trips on the spreadsheet but also corroborated them by invoices or load tickets from the Preble County landfill. This evidence suggests a pattern of activity that appears to be more than what the majority describes as “minimal.”
{¶ 48} In addition to Lawson’s refuse hauling, he also performed other tasks for the village. Pennington stated that, as part of his duties as a councilman on the streets committee, “Lawson [would] buy and lay coal patch to fill pot holes.” Also, every year, Lawson decorated the town’s 30 telephone poles with flags on Memorial Day, Labor Day, and the Fourth of July. “Lawson [drove] the dump truck to each post or telephone pole, [got] in the back of the dump truck, [raised] the dump bin * * * and [put] the flags in place. * * * Lawson remove[d] the flags as well.” Combs further stated that Lawson hauled gravel, hauled brush, cut downed tree limbs, and emptied garbage cans for the village on a regular basis.
{¶ 49} Additionally, Lawson attached and removed a snow plow from the village’s truck every year. Lawson plowed the village streets, the driveways of some local residents, and, on at least one occasion, the Preble-Shawnee school district.
{¶ 50} In addition to these tasks, Lawson mowed several properties with a push mower. Combs averred, “I have seen Lawson use the village push lawn mower and weed eater and cut grass on village property during the summer months for the past 10 years.” Pennington stated that Lawson “additionally cut[ ] approximately five law[n]s for residents of the village.” Combs formerly owned a gun shop where Lawson mowed the lawn for $10 in cash each time.
{¶ 51} Combs’s affidavit provided two other examples of Lawson’s capability to perform work. He stated, “Approximately 7 years ago I knew Lawson to make wood furniture in the basement of his brother-in-law’s shop. * * * Lawson made furniture by request only and made it for other people.” Aside from constructing furniture, Lawson assisted another village resident with a roofing project, although he denied both activities when confronted at the Industrial Commission hearing. Combs stated that “at least 5 or 6 years ago, I saw Lawson assist with putting metal peeks on the roof [of a garage]. To do this, Lawson was on the roof of the building.”
{¶ 52} Under similar fact patterns, this court has upheld cases in which the Industrial Commission terminated a claimant’s PTD status after consideration of evidence demonstrating the claimant’s capability to engage in sustained remunerative employment. For example, a claimant lost PTD status after concealing intermittent paid overnight or multinight babysitting services, selling tickets and conducting walking tours in exchange for free travel, and answering phones, filing, and faxing for her brothers’ businesses. See State ex rel. Alesci v. Indus. *49Comm., 97 Ohio St.3d 210, 2002-Ohio-5932, 777 N.E.2d 835. Another PTD recipient lost an award because he regularly performed paid home improvement and maintenance jobs and specifically denied engaging in sustained remunerative work until confronted with the evidence against him. See State ex rel. Kirby v. Indus. Comm., 97 Ohio St.3d 427, 2002-Ohio-6668, 780 N.E.2d 275.
Casper & Casper and Douglas W. Casper, for appellant. Jim Petro, Attorney General, and Phil Wright Jr., Assistant Attorney General, for appellee.{¶ 53} Here, Lawson unquestionably sustained a major back injury that caused him pain and suffering and prevented him from performing certain kinds of work. However, as with the aforementioned claimants, the commission terminated Lawson’s PTD after it determined from the evidence that he could engage in sustained remunerative activity. And this record, in my view, does contain evidence supporting that determination.
{¶ 54} Finally, the record also contains evidence supporting the commission’s finding that Lawson fraudulently induced the commission to award him PTD compensation in 1995. As part of the application process, Lawson completed a vocational evaluation questionnaire, a major component for determining whether the claimant is eligible for PTD compensation. Question 6(e) of the questionnaire asked him to “list other activities you do or have done that may be related to work. Describe volunteer work or other services you haven’t mentioned elsewhere in this questionnaire.” Lawson responded that he “watched [his] wife’s shop for a while daily (1 hour) when she went to work.” Also on the questionnaire, Lawson claimed to have “done no physical labor in ten years.”
{¶ 55} At the hearing regarding the revocation of PTD compensation, the bureau presented evidence that Lawson dumped two loads of refuse in the landfill one day before he completed the vocational evaluation questionnaire. The bureau questioned Lawson why he did not list these activities or any other work he performed in his questionnaire responses. Lawson replied that he did not remember why he had failed to disclose this information.
{¶ 56} Based on the foregoing, I would affirm the judgment of the court of appeals.
Lundberg Stratton, J., concurs in the foregoing dissenting opinion.