[Cite as State ex rel. Mignella v. Indus. Comm., 2023-Ohio-4074.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Mary Mignella, :
Relator, :
No. 22AP-155
v. :
(REGULAR CALENDAR)
Industrial Commission of Ohio et al., :
Respondents. :
D E C I S I ON
Rendered on November 9, 2023
On brief: Green Haines Sgambati Co., LPA, Shawn D.
Scharf, and Charles W. Oldfield, for relator.
On brief: Dave Yost, Attorney General, and John Smart, for
respondent Industrial Commission of Ohio.
On brief: Ennis Britton Co., LPA, and Giselle S. Spencer, for
respondent Warren City School District Board of Education.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE’S DECISION
DORRIAN, J.
{¶ 1} Relator, Mary Mignella, filed this original action in mandamus seeking a writ
compelling respondent Industrial Commission of Ohio (“commission”) to vacate its order
denying Mignella’s application for permanent total disability (“PTD”) compensation and
enter an order granting such compensation. Pursuant to Civ.R. 53 and Loc.R. 13(M) of the
Tenth District Court of Appeals, this matter was referred to a magistrate who issued a
decision, including findings of fact and conclusions of law, which is appended hereto. The
magistrate recommends this court deny the request for a writ of mandamus. Having
determined the magistrate correctly concluded the independent medical examiner’s report
constituted some evidence on which the commission could rely in denying Mignella’s
application, we overrule Mignella’s objection to the magistrate’s decision and deny the writ.
No. 22AP-155 2
{¶ 2} Mignella has filed the following objection to the magistrate’s decision:
Pursuant to Civil Rule 53(D)(3)(b) and Local Rule 13(M)(2),
Relator, Mary Mignella, objects to the Magistrate’s conclusion
that she is capable of sedentary work and thus, that she is
capable of sustained, remunerative employment and is
ineligible for permanent total disability benefits.
{¶ 3} Mignella was a teacher employed by respondent Warren City School District
Board of Education and, on March 9, 2011, she suffered injuries due to a fall at work. A
workers’ compensation claim was allowed for sprain lumbrosacral, sprain lumbar region,
sprain sacroiliac, sprain thoracic region, neck sprain, left shoulder sprain, open wound lip,
necrosis of pulp teeth 8 and 9, lumbar intervertebral disc displacement L4-5 and L5-S1,
bulging disc without myelopathy C5-6, cervical intervertebral disc displacement C6-7 and
C7-T1. On January 15, 2015, Mignella filed an application for PTD compensation; her
application was supported by a report from Denise M. Carradine, D.C., opining that
Mignella had a 69 percent whole body permanent physical impairment and was incapable
of work. Mignella also presented a vocational evaluation report concluding she would be
unable to sustain remunerative employment.
{¶ 4} Karen Gade-Pulido, M.D., conducted an independent medical examination
of Mignella at the commission’s request. Dr. Gade-Pulido opined that Mignella had a 48
percent whole person impairment and was capable of sedentary work but would need to be
allowed to change position every 20 minutes. In relevant part, Dr. Gade-Pulido
summarized her conclusions as follows:
Ms. Mignella demonstrates reduced range of motion of the
cervical and lumbrosacral spine with objective evidence of
underlying allowed disc pathology which precludes her ability
to maintain prolonged static positioning as well as her ability
to walk or stand for more than 30 minutes. These conditions
also preclude heavy lifting of more than would be required in a
sedentary level of work. Based solely upon the allowed physical
conditions of this industrial claim, she is capable of a sedentary
level of work; however, she would need to be allowed to change
position every 20 minutes.
(Dr. Gade-Pulido Report at 8.)
{¶ 5} A commission staff hearing officer (“SHO”) conducted a hearing on the PTD
application on April 28, 2020. In a decision mailed May 1, 2020, the SHO found Mignella
was not permanently and totally disabled, relying on the report of Dr. Gade-Pulido to
No. 22AP-155 3
conclude that Mignella was capable of sedentary work. Mignella sought reconsideration of
the SHO’s decision, and the commission denied the request for reconsideration. Mignella
filed a complaint in mandamus in this court on March 9, 2022.
{¶ 6} A relator seeking a writ of mandamus as a remedy from a commission
decision must demonstrate that he or 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. Rouch v. Eagle
Tool & Machine Co., 26 Ohio St.3d 197, 198 (1986). A clear legal right to a writ of
mandamus exists when the commission abuses its discretion by entering an order not
supported by some evidence. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76, 79
(1986).
{¶ 7} In her sole objection, Mignella argues the magistrate erred by concluding that
Dr. Gade-Pulido’s report constituted some evidence on which the commission could rely in
concluding that she was capable of sedentary employment and denying her PTD
application. Mignella asserts Dr. Gade-Pulido’s requirement that she change position every
20 minutes, when read in conjunction with the conclusion that she could not stand or walk
more than 30 minutes, constituted a restriction on the length of time Mignella could sit.
Citing this court’s decisions in State ex rel. Libecap v. Indus. Comm., 10th Dist. No.
96APD01-29 (Sept. 5, 1996); State ex rel. Owens Corning Fiberglass v. Indus. Comm., 10th
Dist. No. 03AP-684, 2004-Ohio-3841; and State ex rel. Kidd v. Indus. Comm., 10th Dist.
No. 20AP-364, 2022-Ohio-450, Mignella argues the limitations set forth in Dr. Gade-
Pulido’s report are not consistent with the requirements of sedentary work.
{¶ 8} Mignella raised this same argument before the magistrate and the magistrate
rejected it, concluding that the requirement of changing her position every 20 minutes did
not constitute a temporal limitation on Mignella’s ability to sit. The magistrate
distinguished this court’s decision in Kidd, in which we concluded that a claimant’s inability
to sit for more than 30 minutes and need to take a 1 to 2 minute rest period every 15 to 20
minutes was inconsistent with sedentary work. In this case, the magistrate concluded there
was no clear or apparent inconsistency between the medical limitations imposed in Dr.
Gade-Pulido’s report and the conclusion that Mignella could maintain sustained
remunerative employment and, therefore, the report constituted some evidence on which
the commission could rely in denying Mignella’s application for PTD compensation.
No. 22AP-155 4
{¶ 9} After the magistrate issued his decision in this case and Mignella submitted
her objection, the Supreme Court of Ohio decided the appeal of this court’s decision in Kidd.
State ex rel. Kidd v. Indus. Comm., __ Ohio St.3d __, 2023-Ohio-2975. In that decision,
the Supreme Court reversed this court’s judgment and denied the claimant’s request for a
writ of mandamus. Id. at ¶ 35. The independent medical examiner in that case reported
the claimant could stand for approximately 20 minutes, sit for 20 to 30 minutes with a
change in position, and walk half a mile. Id. at ¶ 25. Based on those limitations, the
independent medical examiner concluded the claimant could work at a sedentary level and
would need to be allowed rest periods of 1 to 2 minutes every 15 to 20 minutes while
standing, sitting, or walking. Id. The Supreme Court held that the restrictions contained
in the independent medical examiner’s report were consistent with sedentary work as
defined in the Ohio Administrative Code and therefore the commission could rely on that
report as some evidence the claimant was medically capable of sedentary work. Id. at ¶ 26.
{¶ 10} Following the Supreme Court’s decision in Kidd, Mignella filed a
supplemental brief asserting the SHO in her case relied solely on Dr. Gade-Pulido’s bottom
line conclusion and failed to consider the specific restrictions imposed in her report.1
Contrary to Mignella’s claim, however, the SHO’s order expressly discussed the restrictions
included in Dr. Gade-Pulido’s report in concluding that Mignella was medically capable of
sedentary work. Therefore, the magistrate did not err by concluding that Dr. Gade-Pulido’s
report constituted some evidence on which the commission could rely in denying Mignella’s
application for PTD compensation. Accordingly, we overrule Mignella’s sole objection to
the magistrate’s decision.
{¶ 11} Upon review of the magistrate’s decision, an independent review of the
record, and due consideration of Mignella’s objection, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
Mignella’s objection to the magistrate’s decision and adopt the magistrate’s decision as our
1 As the magistrate explains, our decision in Libecap and subsequent cases have developed the principle that
the commission may not simply rely on a physican’s bottom line identification of an exertional category but
must base its decision on the specific restrictions set forth within a physican’s report. We acknowledge that
in Kidd the Supreme Court declared Libecap “has no precedential value”; however, the court also found the
underlying principle developed in Libecap and its progeny to be “distinguishable from, and inapplicable to,
this case.” Kidd, 2023-Ohio-2975, at ¶ 33-34. Thus, the Supreme Court did not expressly overrule the holding
of Libecap and its progeny.
No. 22AP-155 5
own, including the findings of fact and conclusions of law contained therein. Accordingly,
the requested writ of mandamus is hereby denied.
Objection overruled;
writ of mandamus denied.
LUPER SCHUSTER and LELAND, JJ., concur.
[Cite as State ex rel. Mignella v. Indus. Comm., 2023-Ohio-4074.]
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Mary Mignella, :
Relator, :
v. : No. 22AP-155
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE’S DECISION
Rendered on July 25, 2023
Green Haines Sgambati Co., LPA, Shawn D. Scharf, and
Charles W. Oldfield, for relator.
Dave Yost, Attorney General, and John Smart, for respondent
Industrial Commission of Ohio.
Ennis Britton Co., L.P.A., and Giselle S. Spencer, for
respondent Warren City School District Board of Education.
IN MANDAMUS
{¶ 12} Relator, Mary Mignella, seeks a writ of mandamus ordering respondent
Industrial Commission of Ohio (“commission”) to vacate its order denying relator’s request
for reconsideration and to enter an order approving relator’s application for permanent
total disability (“PTD”) compensation.
I. Findings of Fact
{¶ 13} 1. On March 9, 2011, relator sustained an injury due to a fall in the course of
and arising out of her employment with respondent Warren City School District Board of
Education (“employer”).
No. 22AP-155 2
{¶ 14} 2. Relator’s workers’ compensation claim was allowed for the following
conditions: “sprain lumbrosacral; sprain lumbar region; sprain sacroiliac; sprain thoracic
region; neck sprain; left shoulder sprain; open wound lip; necrosis of pulp teeth 8 and 9;
lumbar intervertebral disc displacement L4-5 and L5-S1; bulging disc without myelopathy
C5-6; cervical intervertebral disc displacement C6-7 and C7-T1.” (R. at 57.)
{¶ 15} 3. Relator was examined on December 10, 2014 by Denise M. Carradine, D.C.,
for the purpose of evaluating impairment. In a report dated the same day, Dr. Carradine
found that relator had sustained a 69 percent permanent physical impairment of the body
as a whole. Dr. Carradine found that relator was incapable of work.
{¶ 16} 4. Relator filed an IC-2 application for compensation for PTD dated
January 15, 2015.
{¶ 17} 5. An independent medical examination of relator was conducted by Karen
Gade-Pulido, MD. In a report dated January 3, 2020, Dr. Gade-Pulido found that relator
“changed position frequently throughout the interview noting pain in her low back
predominantly while seated.” (R. at 44.) Dr. Gade-Pulido found that relator had reached
maximum medical improvement with regard to the allowed conditions. Dr. Gade-Pulido
provided an estimated whole person impairment arising from each allowed condition,
supported by comments indicating the basis for the opinion. From the combined values of
the impairment for each allowed condition, Dr. Gade-Pulido found relator had sustained a
48 percent whole person impairment. In considering relator’s residual functional capacity
resulting from the impairment associated with the allowed conditions, Dr. Gade-Pulido
opined:
[Relator] demonstrates reduced range of motion of the
cervical and lumbrosacral spine with objective evidence of
underlying allowed disc pathology which precludes her ability
to maintain prolonged static positioning as well as her ability
to walk or stand for more than 30 minutes. These conditions
also preclude heavy lifting of more than would be required in
a sedentary level of work. Based solely upon the allowed
physical conditions of this industrial claim, she is capable of a
sedentary level of work; however, she would need to be
allowed to change position every 20 minutes.
(R. at 48.) Finally, Dr. Gade-Pulido noted on the physical strength rating form that relator
was capable of sedentary work with the limitation that “[s]he should be allowed to change
position every 20 minutes.” (R. at 49.)
No. 22AP-155 3
{¶ 18} 6. John Ruth, M.S., C.D.M.S., completed a vocational evaluation of relator
and documented the findings in a report dated February 27, 2020. Ruth found that relator
“will be unable to successfully seek or sustain remunerative employment now or in the
future.” (R. at 54.)
{¶ 19} 7. On April 28, 2020, a commission staff hearing officer (“SHO”) heard the
issue of relator’s January 16, 2015 IC-2 application for PTD compensation. In an order
mailed May 1, 2020, the SHO denied the IC-2 application based on the report of Dr. Gade-
Pulido. The SHO made the following findings regarding Dr. Gade-Pulido’s report:
Dr. Gade-Pulido, who has examined [relator] on behalf of the
[commission], indicated that [relator’s] conditions has
reached maximum medical improvement and that she cannot
return to her former position of employment, but would be
capable of performing sedentary work, which means [relator]
would be capable of exerting up to ten pounds of force
frequently to lift, carry, push, or otherwise move objects. She
further indicated that [relator] would be capable of
performing occupations which would involve sitting most of
the time but may involve walking or standing for brief periods
of time. She sums up her opinion by indicated that [relator]
would need to be allowed to change positions every 20
minutes and has a 48% permanent partial impairment with
respect to the whole person as it relates to [relator’s] sole
industrial injury from an orthopedic standpoint.
(R. at 57.) The SHO concluded that “based upon the opinion of Dr. Gade-Pulido, who has
examined [relator] on all of the allowed conditions for which [relator’s] sole industrial
injury is recognized, the [SHO] concludes that [relator] is medically capable of performing
some sustained remunerative employment, i.e. sedentary work.” (R. at 57.)
{¶ 20} The SHO considered relator’s nonmedical disability factors, finding:
(1) relator’s age was an unfavorable factor in her reemployment potential; (2) relator’s
education was a positive factor given evidence of ability to learn new skills conducive to at
least sedentary work in an entry-level work environment; (3) relator’s work history and
work experience were a positive factor because relator’s skilled work history would not
necessarily preclude her ability to access other unskilled to skilled work given relator’s
education and ability to read, write, and do basic math; and (4) relator’s work history
indicated she had many transferrable skills within the employment restrictions described
by Dr. Gade-Pulido. In summary, the SHO concluded that relator’s “non-medical disability
factors on a whole favor re-employment, i.e. that [relator’s] positive education and work
No. 22AP-155 4
history factors outweigh [relator’s] negative age factor” and found that relator “can at least
be retrained and perform some other occupation based upon her education, and work
history or at least have the ability to access other work in a sedentary office work
environment.” (R. at 58.) Therefore, the SHO found relator was not precluded from
engaging in sustained remunerative employment and was not permanently and totally
disabled.
{¶ 21} 8. Relator filed a request for reconsideration from the April 28, 2020 SHO
decision. The commission denied relator’s request in an order mailed June 9, 2020 on the
basis that relator’s request for reconsideration failed to meet the criteria of Industrial
Commission Resolution R18-1-06.
{¶ 22} 9. Relator filed a complaint in mandamus in the instant case on March 9,
2022.
{¶ 23} 10. On March 17, 2022, the commission moved for an order dismissing the
Bureau of Workers Compensation (“BWC”) as a party to the action. On March 24, 2022,
relator filed a notice voluntarily dismissing her claims against the BWC pursuant to Civ.R.
41(A)(1)(a).
II. Discussion and Conclusions of Law
{¶ 24} Relator seeks a writ of mandamus ordering the commission to award relator
PTD compensation, arguing that the commission erred in its determination of relator’s
capacity for sedentary work.
A. Requirements for Mandamus
{¶ 25} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, a relator must establish a clear legal right to the
requested relief, that the commission has a clear legal duty to provide such relief, and the
lack of an adequate remedy in the ordinary course of the law. State ex rel. Belle Tire
Distribs. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122; State ex rel. Pressley v.
Indus. Comm., 11 Ohio St.2d 141 (1967). Where the commission’s determination is
supported by some evidence, it has not abused its discretion and this court must uphold the
decision. State ex rel. Seibert v. Richard Cyr, Inc., 157 Ohio St.3d 266, 2019-Ohio-3341,
¶ 44, citing State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373, 376 (1996).
No. 22AP-155 5
{¶ 26} The commission is “exclusively responsible for assessing the weight and
credibility of evidence.” State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-
Ohio-6036, ¶ 11, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987).
Where the commission’s decision is supported by some evidence, the presence of contrary
evidence in the record is immaterial. State ex rel. West. v. Indus. Comm., 74 Ohio St.3d
354, 356 (1996), citing Burley. However, the commission cannot rely on a medical opinion
that is equivocal or internally inconsistent. George at ¶ 11. See State ex rel. Lopez v. Indus.
Comm., 69 Ohio St.3d 445, 449 (1994).
B. Permanent Total Disability under Workers’ Compensation Law
{¶ 27} “[T]he purpose of permanent and total disability benefits is to compensate
injured persons for impairment of earning capacity.” State ex rel. Stephenson v. Indus.
Comm., 31 Ohio St.3d 167, 170 (1987), citing State ex rel. Gen. Motors Corp. v. Indus.
Comm., 42 Ohio St.2d 278 (1975). “Permanent total disability is the inability to do any
sustained remunerative work.” State ex rel. Schultz v. Indus. Comm., 96 Ohio St.3d 27,
2002-Ohio-3316, ¶ 61, citing Stephenson at 170. See Ohio Adm.Code 4121-3-34(B)(1).
{¶ 28} R.C. 4123.58 governs compensation for PTD, allowing compensation only
when one of the following conditions is met:
(1) The claimant has lost, or lost the use of both hands or both
arms, or both feet or both legs, or both eyes, or of any two
thereof; however, the loss or loss of use of one limb does not
constitute the loss or loss of use of two body parts;
(2) The impairment resulting from the employee’s injury or
occupational disease prevents the employee from engaging in
sustained remunerative employment utilizing the
employment skills that the employee has or may reasonably
be expected to develop.
R.C. 4123.58(C). PTD compensation is prohibited when the reason the applicant is unable
to engage in sustained remunerative employment is due to any of the following reasons,
whether individually or in combination:
(1) Impairments of the employee that are not the result of an
allowed injury or occupational disease;
(2) Solely the employee’s age or aging;
(3) The employee retired or otherwise is not working for
reasons unrelated to the allowed injury or occupational
disease.
No. 22AP-155 6
(4) The employee has not engaged in educational or
rehabilitative efforts to enhance the employee’s employability,
unless such efforts are determined to be in vain.
R.C. 4123.58(D).
{¶ 29} Ohio Adm.Code 4121-3-34 governs the processing and adjudication of
applications for PTD.2 Ohio Adm.Code 4121-3-34(B)(2) provides a classification of physical
demands of work, separating the demands into five classes: sedentary work, light work,
medium work, heavy work, and very heavy work. “Sedentary work” is defined as:
[E]xerting 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.
Ohio Adm.Code 4121-3-34(B)(2)(a). The applicant bears the burden to prove permanent
total disability by establishing under a preponderance of the evidence that the disability
is permanent and that the inability to work is causally related to the allowed conditions.
Ohio Adm.Code 4121-3-34(D)(3)(a). See State ex rel. Sheppard v. Indus. Comm., 139
Ohio St.3d 223, 2014-Ohio-1904, ¶ 16; State ex rel. LTV Steel Co. v. Indus. Comm., 65
Ohio St.3d 22, 23 (1992).
{¶ 30} The relevant inquiry in PTD cases is whether the applicant engages in or is
medically capable of sustained remunerative employment. Seibert, 2019-Ohio-3341, ¶ 18,
citing State ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-6086, ¶ 16;
State ex rel. Franta v. Indus. Comm. of Ohio, 10th Dist. No. 19AP-530, 2021-Ohio-1501,
¶ 6. The term “sustained” has not been precisely defined for workers’ compensation
purposes. In order to be considered sustained, remunerative activity does not have to occur
on a regular or daily basis, but “[a]ny ‘ongoing pattern’ of activity can be categorized as
sustained activity.” State ex rel. McNea v. Indus. Comm., 131 Ohio St.3d 408, 2012-Ohio-
1296, ¶ 13, quoting Schultz, 2002-Ohio-3316, at ¶ 63. The Supreme Court of Ohio has held
that “part-time work constitutes sustained remunerative employment.” State ex rel. Toth
2 Ohio Adm.Code 4121-3-34 has been amended since relator filed her application for PTD. However, the
changes are not material to the question presented in this case.
No. 22AP-155 7
v. Indus. Comm., 80 Ohio St.3d 360, 362 (1997). Importantly, however, there is no bright-
line numerical analysis for determining whether part-time work meets the qualifications
for sustained remunerative employment in PTD cases. State ex rel. Bonnlander v. Hamon,
150 Ohio St.3d 567, 2017-Ohio-4003, ¶ 20 (stating that “there is no hourly standard for
determining one’s capability to perform sustained remunerative employment on a part-
time basis,” but rather the “commission decides whether a claimant is capable of sustained
remunerative employment on a case-by-case basis”).
{¶ 31} “Entitlement to permanent total disability compensation requires a showing
that the medical impairment due to the allowed conditions, either alone or together with
nonmedical disability factors, prevents claimant from engaging in sustained remunerative
employment.” State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452, 455 (1993), quoting
LTV Steel Co., 65 Ohio St.3d 22, 24 (1992). Nonmedical factors include the “claimant’s age,
education, work record, and all other factors, such as physical, psychological, and
sociological, that are contained within the record.” Stephenson at 173. “[A] claimant’s
medical capacity to work is not dispositive if the claimant’s age, experience, education, etc.,
foreclose the claimant’s employability.” State ex rel. Gay v. Mihm, 68 Ohio St.3d 315, 321
(1994). See State ex rel. Navistar, Inc. v. Indus. Comm., 160 Ohio St.3d 7, 2020-Ohio-712,
¶ 23, quoting State ex rel. Galion Mfg. Div., Dresser Indus., Inc. v. Haygood, 60 Ohio St.3d
38, 40 (1991) (“While the commission may not deny PTD compensation without
considering nonmedical factors, it may grant PTD compensation without considering
nonmedical factors when ‘medical factors alone preclude sustained remunerative
employment.’ ” (Emphasis sic.)). Furthermore, the commission is required to “specifically
state 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), paragraph one of the syllabus.
C. Application
{¶ 32} Relator argues the commission erred in denying her application for PTD
compensation because she is not capable of sedentary work under Ohio Adm.Code 4121-3-
34(B)(2)(a) and this court’s decisions in State ex rel. Kidd v. Indus. Comm. of Ohio, 10th
Dist. No. 20AP-364, 2022-Ohio-450, and State ex rel. Libecap v. Indus. Comm., 10th Dist.
No. 96AP-29, 1996 Ohio App. LEXIS 3892 (Sept. 5, 1996), aff’d without opinion, 83 Ohio
St.3d 178 (1998). Sedentary work under the Ohio Administrative Code “involves sitting
most of the time,” although it may also “involve walking or standing for brief periods of
No. 22AP-155 8
time.” Ohio Adm.Code 4121-3-34(B)(2)(a). Furthermore, a job is “sedentary if walking and
standing are required only occasionally and all other sedentary criteria are met.”
(Emphasis added.) Ohio Adm.Code 4121-3-34(B)(2)(a).
{¶ 33} This court has restated the salient principle articulated in Libecap, explaining
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 (such as an
inability to sit for more than 30 minutes), 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.’ ” Kidd at ¶ 9, quoting State ex rel. Owens Corning Fiberglass v.
Indus. Comm., 10th Dist. No. 03AP-684, 2004-Ohio-3841, ¶ 56. See State ex rel. Howard
v. Millennium Inorganic Chems., 10th Dist. No. 03AP-637, 2004-Ohio-6603, ¶ 10, quoting
State ex rel. Clevite Elastomers v. Torok, 10th Dist. No. 02AP-116, 2002-Ohio-4770, ¶ 14
(“ ‘Functional 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.’ ”). The court’s analysis in Libecap has been further summarized as follows:
“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.”
Howard at ¶ 9, quoting Owens Corning at ¶ 56-57. Thus, the “ ‘commission cannot simply
rely on a physician’s “bottom line” identification of an exertional category but must base
No. 22AP-155 9
its decision on the specific restrictions imposed by the physician in the body of the
report.’ ” Howard at ¶ 9, quoting Owens Corning at ¶ 56.
{¶ 34} In Libecap and the cases applying its holding, this court closely examined the
medical report relied upon by the commission in determining whether there existed an
apparent inconsistency between the medical restrictions contained in the report and the
concept of the ability to maintain sustained remunerative employment. Given the
inherently factual nature of this inquiry, an examination of the particular circumstances of
those cases in which an apparent inconsistency was found may be helpful to the
determination of whether such an apparent inconsistency is present in this case. In
Libecap, the commission denied the applicant’s PTD compensation application based on a
doctor’s report that provided limitations on the applicant’s ability to work including an
inability to lift more than 5 or 10 pounds and difficulty in any occupation that would involve
sitting or standing for more than 30 minutes. The doctor further stated that “ ‘[f]requent
breaks and allowing the claimant to change positions would be required.’ ” Libecap. The
commission denied the applicant’s PTD compensation application based on the doctor’s
report and the report of a psychologist that provided insight regarding the applicant’s
psychological profile. This court found the commission abused its discretion because the
commission relied on reports that did not constitute some evidence. The court found the
doctor’s report relied on by the commission was not “consistent with sedentary work as
defined in the Ohio Administrative Code or with the general definition of ‘sedentary work’
utilized before Ohio Adm.Code 4121-3-34(B)(2)(a) became effective.” Id.
{¶ 35} In Howard, the commission denied a PTD application on the basis of a
medical report concluding that the applicant was capable of performing sedentary work.
The commission argued Libecap did not apply because the medical report identified no
restrictions that were inconsistent or incompatible with sedentary work. The court found
the medical limitations set forth in the medical report seemed inconsistent with the
possibility of the applicant maintaining sustained remunerative employment. The court
noted the report’s finding that the applicant was unable to maintain a voice loud enough to
be heard over normal conversation and background noise, thereby making it very difficult
to communicate with fellow workers. The applicant’s voice tired rapidly and tended to
become inaudible after a few seconds to minutes. Furthermore, the applicant’s shortness of
breath was aggravated by performance of any unusual activities of daily living beyond
No. 22AP-155 10
personal cleansing or grooming. Finally, the court noted the PTD claimant had “suffered a
nearly 100 percent whole person impairment as a result of the allowed conditions in his
claim.” Howard, 2004-Ohio-6603, at ¶ 12. The court acknowledged that there existed room
for interpretation of the medical evidence and granted a limited writ of mandamus so the
commission could “adequately resolv[e] the apparent inconsistency between the medical
restrictions contained in [the medical] report and the concept of the ability to maintain
sustained remunerative employment.” Id. at ¶ 12.
{¶ 36} Recently, in Kidd, this court applied Libecap, in considering a commission
order denying PTD based on the report of an independent medical examiner, who found
that the applicant could work at a sedentary level. The report contained functional
limitations including being able to stand for 20 minutes, sit for 20 to 30 minutes with
change in position, and walk half of a mile. The medical report further provided the
applicant should be allowed rest periods every 15 to 20 minutes for 1 to 2 minutes as needed
during standing, sitting, or walking. The commission argued that Libecap was
distinguishable because, in addition to being able to use a treadmill four times a week for
approximately 30 minutes, the applicant could sit, stand, and walk. The commission also
argued that the applicant’s rest-period requirement was not an impediment to sedentary
work because she could change position or stand and walk as necessary.
{¶ 37} This court rejected the commission’s arguments in Kidd, finding that, as in
Libecap, “the inability to sit for more than 30 minutes is inconsistent with sedentary work
as defined in the Ohio Administrative Code.” Kidd, 2022-Ohio-450, at ¶ 10. The court
further found that the rest-period requirement indicated that the applicant “needs to stop
working for one or two minutes every 15 to 20 minutes, not that she simply change
positions, stand, or walk after sitting for a spell.” Id. Therefore, the court found the
applicant’s “inability to sit for more than 30 minutes, and her need to take a one-or two-
minute rest period every 15 to 20 minutes, is akin to the limitations this court found in
Libecap to be seemingly inconsistent with sedentary work, as the Ohio Administrative Code
defines that term.” Id.
{¶ 38} Here, the SHO relied on the report of Dr. Gade-Pulido in finding relator was
capable of sedentary work. Opining on relator’s residual functional capacity, Dr. Gade-
Pulido found that relator’s condition “precludes her ability to maintain prolonged static
positioning as well as her ability to walk or stand for more than 30 minutes.” (R. at 48.) Dr.
No. 22AP-155 11
Gade-Pulido stated that relator is “capable of a sedentary level of work; however, she would
need to be allowed to change position every 20 minutes.” (R. at 48.) In the commission
physical strength rating form, Dr. Gade-Pulido reiterated this limitation, noting that “[s]he
should be allowed to change position every 20 minutes” after finding that relator is capable
of sedentary work. (R. at 49.)
{¶ 39} Relator argues that Dr. Pulido’s limitation requiring that relator be allowed
to change position every 20 minutes means that relator “cannot sit for more than 20
minutes.” (Relator’s Brief at 11.) Based on this, relator argues that this court’s holdings in
Libecap and Kidd apply because relator’s functional capacity is so limited that no sedentary
work is feasible. In its brief, the commission argues this court’s holding in Libecap and
subsequent cases applying its holding do not apply because Dr. Gade-Pulido’s report does
not identify a “specific time restriction on sitting” and, as a result, argues that relator is
“capable of sitting most of the time.” (Comm. Brief at 11.) The commission argues in this
action that Dr. Gade-Pulido’s report placed a specific time limitation only on relator’s ability
to walk or stand for more than 30 minutes.
{¶ 40} Although Dr. Gade-Pulido does not specifically mention the term “sitting” in
her summary of relator’s residual functional capacity, a sitting position is encapsulated by
Dr. Gade-Pulido’s reference to a “static position.” Merriam-Webster’s Collegiate Dictionary
defines “static” as “exerting force by reason of weight alone without motion”; “of or relating
to bodies at rest or forces in equilibrium”; “showing little change”; “characterized by a lack
of movement, animation, or progression”; “producing an effect of repose or quiescence”; or
“standing or fixed in one place.” Merriam-Webster’s Collegiate Dictionary 1219 (11th
Ed.2014). Similarly, Taber’s Cyclopedic Medical Dictionary defines “static” as “[a]t rest; in
equilibrium; not in motion.” Taber’s Cyclopedic Medical Dictionary 2226 (23d Ed.2017).
Although perhaps overly elementary, “sit” is defined in part as “to rest on the buttocks or
haunches.” Merriam-Webster’s at 1165. Thus, although Dr. Gade-Pulido does not
specifically mention the term “sitting,” the phrase static position includes any nonmoving
position, which thereby necessarily includes, but is not limited to, sitting. However, Dr.
Gade-Pulido does not place a specific time limitation on relator’s ability to maintain a static
position, stating only that relator was unable to maintain such a state in a prolonged
fashion. No party argues that Dr. Gade-Pulido’s 30-minute limitation also applies the
No. 22AP-155 12
phrase “prolonged static position.” Instead, such temporal limitation appears to only apply
to walking or standing.3
{¶ 41} Contrary to relator’s contentions, the limitation in Dr. Gade-Pulido’s report
requiring relator be allowed to change position every 20 minutes does not encompass a
specific temporal limitation on relator’s ability to sit. Dr. Gade-Pulido does not state that
relator’s condition precludes her ability to sit for more than a specific amount of time.
Rather, the limitation requires an employer allow relator to change position every 20
minutes. Relator contends that this interpretation is inconsistent with the rest of Dr. Gade-
Pulido’s observation that relator “changed position frequently throughout the interview
noting pain in her low back predominantly while seated.” (R. at 44.) Dr. Gade-Pulido’s
observations of relator’s behavior and complaints, however, do not lead to a conclusion that
Dr. Gade-Pulido found relator was unable to sit for a specific amount of time, let alone 20
minutes. See State ex rel. Stallard Bales v. Indus. Comm., 10th Dist. No. 15AP-418, 2017-
Ohio-947, ¶ 47 (stating that “[c]ontrary to relator’s assertions, Dr. Elias never limited her
to 30 minutes of continuous sitting and 20 minutes of continuous standing” but rather, “Dr.
Elias noted that relator ‘self-reported’ these restrictions,” and therefore finding that the
report in question “does not even contain a Libecap-type contradiction”). Dr. Gade-Pulido’s
30-minute limitation on relator’s ability to walk or stand is demonstrative of the manner in
which a specific temporal limitation could be imposed. By contrast, it is clear that Dr. Gade-
Pulido made no such temporal limitation on relator’s ability to sit in her report.
{¶ 42} Unlike in Kidd, in which the court found the applicant’s limitations were
severe enough to mean that the applicant would need to “stop working for one to two
minutes every 15 to 20 minutes, not that she simply change positions, stand, or walk after
sitting for a spell,” here, relator points only to the allowance for a change of position every
20 minutes in support of her argument that she is incapable of sustained remunerative
employment of a sedentary nature. (Emphasis added.) Kidd, 2022-Ohio-450, at ¶ 10.
Moreover, unlike in Howard, in which the PTD claimant suffered a nearly 100 percent
3 Although marginally unclear, an alternative interpretation applying this specific temporal limitation to the
phrase “static position” would not be consistent with the overall text of the sentence, including the usage of
“prolonged” as a temporal modifier of the phrase “static position,” or with common rules of grammar and
construction, notably including the last-antecedent rule. See Indep. Ins. Agents of Ohio v. Fabe, 63 Ohio St.3d
310, 314 (1992), quoting Carter v. Div. of Water, 146 Ohio St. 203, 209 (1946) (“ ‘Referential and qualifying
words and phrases, where no contrary intention appears, refer solely to the last antecedent.’ ”); Gahanna v.
Ohio Mun. Joint Self-Insurance, 10th Dist. No. 20AP-265, 2021-Ohio-445, ¶ 20.
No. 22AP-155 13
whole person impairment, Dr. Gade-Pulido found relator had sustained a 48 percent whole
person impairment. Considering the entire report and the specific limitations contained
therein, the report does not set forth functional capacities so limited that no sedentary work
is really feasible.
{¶ 43} Therefore, considering the entire medical report, the magistrate finds there
is not a clear or apparent inconsistency between the medical limitations contained in the
report relied upon by the commission in denying PTD compensation, including the
limitation allowing relator to change position every 20 minutes, and the concept of the
ability to maintain sustained remunerative employment. Because the report relied upon by
the commission does not give rise this apparent inconsistency, it constitutes some evidence
on which the commission could rely in determining relator failed to meet her burden of
demonstrating entitlement to PTD compensation. See Stallard Bales at ¶ 47.
{¶ 44} Finally, the employer notes that under R.C. 4123.58(D), PTD compensation
shall not be awarded where the reason the applicant is unable to engage in sustained
remunerative employment is due to any one of several listed reasons. The employer argues
that several of the reasons provided under R.C. 4123.58(D) apply in this case, thereby
barring relator from receiving PTD compensation. As the commission has not made any
findings, including in the SHO order denying relator’s application for PTD compensation,
regarding the applicability of the reasons listed under R.C. 4123.58(D), it is not necessary
to address the employer’s argument in the first instance in this mandamus action. See State
ex rel. Hayes Lemmerz Internatl. Commer. Hwy. v. Indus. Comm. of Ohio, 10th Dist. No.
09AP-908, 2011-Ohio-2161, ¶ 19 (“The commission should be given an opportunity to
consider legal and factual issues in the first instance and decide them, rather than having
such issues determined in the first instance by this court in a mandamus action, which is
essentially contrary to the purposes of mandamus as defined above.”). See also
Bonnlander, 2017-Ohio-4003 at ¶ 15 (finding resolution of a reason under R.C. 4123.59(D)
entailed a question of fact that was for the commission to determine).
D. Conclusion
{¶ 45} Based on the foregoing, relator has not demonstrated a clear legal right to the
requested relief or that the commission is under a clear legal duty to provide such relief.
Accordingly, it is the decision and recommendation of the magistrate that relator’s request
for a writ of mandamus should be denied. As relator filed on March 24, 2022 a notice
No. 22AP-155 14
pursuant to Civ.R. 41(A)(1)(a) dismissing all claims against the BWC in this action, the
commission’s March 17, 2022 motion to dismiss the BWC is moot.
/S/ MAGISTRATE
JOSEPH E. WENGER IV
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). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.