Opinion
No. 98AP-1303.
Rendered on September 16, 1999.
Spears Associates Co., L.P.A., and David R. Spears, for relator.
Betty D. Montgomery Attorney General, and Thomas W. Atzberger, for respondents Industrial Commission of Ohio and Bureau of Workers' Compensation.
MEMORANDUM DECISION IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION
Relator, Roger D. Lewis, filed this original action requesting a writ of mandamus which orders respondent Industrial Commission of Ohio to vacate its order denying relator's application for permanent total disability compensation, and to issue an order finding relator is entitled to permanent total disability compensation pursuant to State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315. In the alternative, relator requests that this court issue a limited writ of mandamus remanding this matter to the commission for further proceedings.
Pursuant to Civ.R. 53 and Section M, Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. In her report the magistrate concluded that contrary to relator's contentions, the staff hearing officer did not rely on the report of Dr. Bartley, but relied on the reports of Drs. Chavez, Greer, and Litvak through the vocational report of Mr. Cody. Moreover, the magistrate determined the commission did not abuse its discretion in accepting the report of Dr. Chavez, and completely discounting the report of Dr. Levy. Finally, the magistrate determined the order complied with State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203.
Relator has filed objections to the magistrate's decision, largely rearguing those matters adequately addressed in the decision. In addition, relator suggests the staff hearing officer for the commission did not identify that medical evidence on which it relied, rendering review impossible. While we agree that the staff hearing officer's order is less clear than some in identifying the medical evidence on which the staff hearing officer relied, the report nonetheless is sufficient to allow review. The order specifically notes the report of Dr. Chavez, who opined relator would be capable of light, as well sedentary work, and that relator's specialized training was transferable to lighter tasks. The staff hearing officer found Dr. Chavez's medical findings to be probative, credible, and reliable, and "so are adopted as fact." (Order p. 1.)
Moreover, the staff hearing officer noted that the vocational analyst William Cody reported various jobs which relator could do based on the opinions of Drs. Greer and Litvak. The staff hearing officer then adopted Cody's findings as "credible, probative, and reliable." (Order p. 2.) Given those excerpts from the staff hearing officer's order, we agree with the magistrate that the staff hearing officer relied on the reports of Drs. Chavez, Greer, and Litvak. While the staff hearing officer also mentioned the report of Dr. Bartley, he did so only to note that Dr. Bartley found relator could sit from three to five hours in an eight-hour day, and stand and walk each for zero to three hours a day; that the report "qualifies this worker for many sedentary jobs." (Order p. 2.) He did not purport to adopt the report.
Accordingly, for the reasons set forth in the magistrate's decision, as well as those set forth in this memorandum decision, the objections are overruled.
Following independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, the requested writ of mandamus is denied.
Objections overruled; writ denied.
KENNEDY and DESHLER, JJ., concur.