State v. Industrial Commission, Unpublished Decision (9-9-1999) ( 1999 )

MEMORANDUM DECISION Relator, John D. Edgell, has filed this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying his application for permanent total disability compensation.

Pursuant to Civ.R. 53 and Loc.R. 12(M), of the Tenth Appellate District, this matter was referred to a magistrate, who has issued a decision, including findings of fact and conclusions of law recommending the requested writ of mandamus be denied. There have been no objections filed to the magistrate's decision.

As correctly postured by the magistrate, the issue before the commission relating to an award of permanent total disability compensation centers on relator's ability to do any sustained remunerative employment. See Stateex rel. Domjancic v. Indus. Comm. (1994), 69 Ohio St.3d 693.

The magistrate correctly concluded that the commission did not improperly fail to consider the vocational opinion of Barbara Burk, a vocational expert. In this respect, while there is some question that Ms. Burk's vocational assessment was before the staff hearing officer, even if the report were part of the record, the commission was not required to follow Ms. Burk's recommendations and conclusion. And as correctly alluded to by the magistrate in her decision, the failure of relator to seek vocational rehabilitation in the twelve years following his termination of employment, is a fact the commission may consider in determining whether relator is entitled to permanent total disability compensation. See State ex rel. Woodv. Indus. Comm. (1997), 78 Ohio St.3d 414.

Following an independent review pursuant to Civ.R. 53, we find that the magistrate has properly determined the pertinent facts and applied the salient law thereto. Therefore, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein.

In accordance with the magistrate's decision, the requested writ of mandamus is denied.

Writ denied.

BOWMAN, J., and LAZARUS, P.J., concur.