State ex rel. Smith v. Thomas/Sysco Food Serv. ( 2014 )

[Cite as State ex rel. Smith v. Thomas/Sysco Food Serv., 2014-Ohio-1641.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Marvin Smith, :
Relator, :
v. : No. 13AP-37
Thomas/Sysco Food Service and : (REGULAR CALENDAR)
Industrial Commission of Ohio,
:
Respondents.
:
D E C I S I O N
Rendered on April 17, 2014
Casper & Casper, and Ronald M. Kabakoff, for relator.
Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
CONNOR, J.
{¶ 1} Relator, Marvin Smith, brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order denying him permanent total disability ("PTD") compensation, and to
find that he is entitled to that compensation.
{¶ 2} 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 has now rendered a decision and
recommendation that includes findings of fact and conclusions of law and is appended to
this decision. The magistrate concluded that the commission did not abuse its discretion
and recommended that this court not issue the requested writ of mandamus. Relator has
No. 13AP-37 2
filed objections to the magistrate's decision, and the matter is now before us for our
independent review.
{¶ 3} As reflected in the facts given in the magistrate's decision, claimant was
involved in a work-related injury on May 3, 1990. Claimant's industrial claim has been
allowed for the following conditions: lumbar sprain, aggravation of pre-existing
degenerative disc disease, and bulging intervertebral at L5-S1.
{¶ 4} Relator filed an application for PTD compensation on November 11, 2011. At
the commission's request, Dr. Thomas Forte conducted a medical examination of relator
on April 19, 2012. Dr. Forte concluded that relator was capable of performing sedentary
work.
{¶ 5} The application came before a staff hearing officer ("SHO") for a hearing on
August 7, 2012. The SHO relied on the medical report of Dr. Forte to conclude that
claimant was able to engage in sustained remunerative employment. Accordingly, the
SHO denied the application for PTD compensation.
{¶ 6} The magistrate determined that Dr. Forte's narrative report and physical
strength rating form were not equivocal or inconsistent. The magistrate thus concluded
that Dr. Forte's report and physical strength rating form were some evidence which the
commission could rely on to deny relator's application for PTD compensation. Relator
presents the following objections to the magistrate's decision:
1. The Magistrate erred in finding that Dr. Forte's report was
internally consistent.
2. The Magistrate erred in finding that Dr. Forte's report
constitutes some evidence to support the denial of PTD.
{¶ 7} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the
objected matters "to ascertain that the magistrate has properly determined the factual
issues and appropriately applied the law." A relator seeking a writ of mandamus must
establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon
respondent to perform the act requested, and (3) that relator has no plain and adequate
remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police &
Firemen's Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting
State ex rel. Consolidated Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear
No. 13AP-37 3
legal right exists where the [commission] abuses its discretion by entering an order which
is not supported by 'some evidence.' " Id.{¶ 8} This court will not determine that the commission abused its discretion
when there is some evidence in the record to support the commission's finding. State ex
rel. Rouch v. Eagle Tool & Mach. Co., 26 Ohio St.3d 197, 198 (1986). The some evidence
standard "reflects the established principle that the commission is in the best position to
determine the weight and credibility of the evidence and disputed facts." State ex rel.
Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing State ex
rel. Pavis v. Gen. Motors Corp., B.O.C. Group, 65 Ohio St.3d 30, 33 (1992).
{¶ 9} The relevant inquiry in a determination of PTD is the claimant's ability to do
any sustained remunerative employment. State ex rel. Domjacic v. Indus. Comm., 69
Ohio St.3d 693 (1994); Ohio Adm.Code 4121-3-34(B)(1). An individual can engage in
sustained remunerative employment if they can perform sedentary work. Sedentary work
means "exerting up to ten pounds of force occasionally * * * and/or a negligible amount of
force frequently * * * 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." Ohio Adm.Code 4121-3-34(B)(2)(a).
{¶ 10} In his first objection, relator asserts that the magistrate erred by not finding
that Dr. Forte's report was internally inconsistent. Equivocal or internally inconsistent
medical reports do not constitute some evidence upon which the commission can rely.
State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649 (1994); State ex rel. Lopez v.
Indus. Comm., 69 Ohio St.3d 445 (1994); State ex rel. Paragon v. Indus. Comm., 5 Ohio
St.3d 72 (1983). Equivocation "occurs 'when a doctor repudiates an earlier opinion,
renders contradictory or uncertain opinions, or fails to clarify an ambiguous statement.' "
State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 407, 2011-Ohio-6036, ¶ 15,
quoting Eberhardt at 657.
{¶ 11} Relator asserts that "Dr. Forte's report clearly states twice that further
restrictions will be listed on the Physical Strength Rating Form," and notes that, if Dr.
Forte "had actually listed restrictions it would have been highly relevant as to whether Mr.
Smith had the capacity to return to work." (Objections to Magistrate's Decision, 5.)
Relator appears to assert that, as Dr. Forte's report indicated that restrictions would be
No. 13AP-37 4
listed on the physical strength rating form, and the form did not list those restrictions, Dr.
Forte's report is inconsistent.
{¶ 12} The magistrate concluded that Dr. Forte did set forth limitations on the
physical strength rating form, as Dr. Forte had checked the box indicating that relator was
only capable of performing sedentary work. The physical strength rating form then
provided the Ohio Adm.Code 4121-3-34(B)(2)(a) definition of sedentary work, indicating
that the injured worker can only exert up to ten pounds of force and is restricted to sitting
most of the time, but can walk or stand for brief periods of time.
{¶ 13} Dr. Forte's report indicates that the sedentary work restrictions are
necessary "based upon [relator's] limited and painful lumbar range of motion, right lower
extremity weakness, and altered sensation." (Stip.R. 46.) Dr. Forte noted that relator
arrived to his appointment "in a wheelchair" and that relator had indicated "that he
utilized a wheelchair when he anticipated anything other than a very short distance
walking." (Stip.R. 46.) Dr. Forte noted that relator was able to walk around the exam
room by using "a cane or by holding onto furniture in the exam room." (Stip.R. 46.) There
is nothing in Dr. Forte's report which contradicts the findings on the physical strength
rating form or which is inconsistent with the limitations contained in the definition of
sedentary work. Compare State ex rel. Ingersoll Rand Co. v. Indus. Comm., 10th Dist.
No. 10AP-254, 2010-Ohio-5362, ¶ 3 (finding a report was internally inconsistent because
the doctor's "statement that claimant was unemployable due to pain and severe neck
limitations was in direct conflict with his earlier statement that claimant could perform
sedentary work"). Accordingly, we find that Dr. Forte's report is not internally
inconsistent. Relator's first objection is overruled.
{¶ 14} Relator's second objection to the magistrate's decision asserts that Dr.
Forte's report cannot be considered some evidence if it is found to be internally
inconsistent. As we have found that Dr. Forte's report was not internally inconsistent, Dr.
Forte's report was some evidence to support the denial of relator's application for PTD
compensation. Accordingly, relator's second objection is overruled.
{¶ 15} 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
No. 13AP-37 5
and conclusions of law contained therein. In accordance with the magistrate's decision,
we deny the request for a writ of mandamus.
Objections overruled;writ denied.
KLATT and O'GRADY, JJ., concur.
_________________
No. 13AP-37 6
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Marvin Smith, :
Relator, :
No. 13AP-37
v. :
(REGULAR CALENDAR)
Thomas/Sysco Food Service and :
Industrial Commission of Ohio,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on September 26, 2013
Casper & Casper, and Ronald M. Kabakoff, for relator.
Michael DeWine, Attorney General, and Naveen V.
Ramprasad, for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 16} In this original action, relator, Marvin Smith, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate its order
denying him permanent total disability ("PTD") compensation, and to enter an order
granting the compensation.
Findings of Fact:
{¶ 17} 1. On May 3, 1990, relator sustained an industrial injury while employed as
a truck driver for respondent Thomas/Sysco Food Service, a state-fund employer.
{¶ 18} 2. The industrial claim (No. 90-36219) is allowed for: "[l]umbar sprain;
aggravation of pre-existing degenerative disc disease; bulging intervertebral at L5-S1."
No. 13AP-37 7
{¶ 19} 3. On November 11, 2011, relator filed an application for PTD
compensation.
{¶ 20} 4. On April 19, 2012, at the commission's request, relator was examined by
Thomas E. Forte, D.O. In his six-page narrative report, Dr. Forte states:
PHYSICAL EXAMINATION:
GENERAL: Mr. Smith was a pleasant, cooperative male who
exhibited some overt pain behaviors, and sat or stood
through the interview in some apparent distress with the
need to change/adjust his position intermittently. The
injured worker was accompanied by his wife who was
present during the interview and examination. His height
was 5 foot 10 inches, weight 206 pounds. Blood pressure
161/85, pulse 80 and regular, respirations 16 and unlabored.
He and his wife indicated they would check his blood
pressure at home and communicate with his family physician
regarding her [sic] blood pressure.
LUMBAR SPINE: There was a flat lordosis of the lumbar
spine. Palpation of the lumbar paraspinal muscles elicited
moderate tenderness diffusely. There was both moderate
guarding and mild spasm of the paraspinal musculature.
Palpation of the lumbar spine elicited moderate tenderness
at L4-sacrum. There were multiple well-healed surgical scars
associated with lumbar surgeries, including a midline 7.5 cm
scar and bilateral paralumbar 4 cm scars. There were no
Waddell's signs present. The Patrick's (FABER) test was
negative bilaterally[.] Sitting up from lying position was
accomplished using abdominal muscles with a modified log-
roll maneuver. Footwear was put on and taken off by his
wife. There was a level pelvis, without scoliosis, with no
significant leg length difference. He reported pain with all
lumbar motions throughout the range of motion.
Lumbar Spine- Range of motion (in degrees):
Flexion- true lumbar: 18, sacral flex= 15 [Impairment varies
w/ scaral ROM]
Extension- true lumbar: 0, sacral ext= 0 [Possible ROM-
based impairment, if <23]
Right side bending: 10 [Possible ROM-based impairment, if
<23]
Left side bending: 12 [Possible ROM-based impairment, if
<23]
No. 13AP-37 8
The seated straight leg raising was accomplished to 65
degrees bilaterally. The lying straight leg raising testing
resulted in low back and ipsilateral posterior thigh pain at 35
degrees on the right and low back pain at 40 degrees on the
left.
LOWER EXTREMITY NEUROLOGIC: The strength in the
lower extremities was normal (5 out of 5) throughout the left
lower extremity, but there was grade 4/5 weakness of right
foot dorsiflexion and right knee extension, without a foot
drop. There was no give-way weakness. Lower extremity
sensation was intact to all modalities for the left lower
extremity, but there was altered sharp/dull discrimination
along the posterior aspect of the right thigh, the medial
aspect of the right calf, the lateral aspect of the right foot,
and the lateral 3 toes of the right foot. The patellar reflexes
were 1+ on the right, and 2+ on the left. The ankle reflexes
were absent on the right, and 1+ on the left. There was no
atrophy in either of the thighs, but there was 0.7 cm of right
calf atrophy. There were no observed involuntary
movements.
GAIT and STATION: The injured worker arrived in a
wheelchair and indicated that he utilized a wheelchair when
he anticipated anything other than very short distance
walking. The gait and station were antalgic, with the injured
worker leaning forward at the waist approximately 15
degrees, and moving about the room holding onto various
pieces of furniture and/or utilizing his cane. Walking was
performed only with a cane or by holding onto furniture in
the exam room. Walking on the heels and toes was not
tested, due to his right lower extremity weakness and his
antalgic gait pattern. The Romberg test was not tested.
Transfer to the exam table was accomplished with moderate
apparent difficulty.
DISCUSSION: Marvin Smith has allowed conditions from
a single claim being evaluated in this report.
Mr. Smith has already undergone 2 lumbar surgeries,
physical therapy, various injections, and the medication
regimen has been optimized. The allowed physical
conditions in the claims have stabilized to the point that no
major medical change can be expected, despite any
continuing medical treatment or rehabilitative programs in
which the injured worker may participate.
No. 13AP-37 9
Based only on the allowed physical conditions evaluated in
this report and not considering the worker's age, education,
and work history, the worker's physical limitations are
outlined in the PHYSICAL STRENGTH RATING FORM
below. These lifting, standing, running, repetitive motion,
and sitting limitations are necessary due to the allowed back
conditions in the claim addressed in this report, and these
limitations based upon his limited and painful lumbar range
of motion, right lower extremity weakness, and altered
sensation.
OPINION: Based solely on today's history and physical
examination, review of the records provided, and based only
on the allowed conditions I have been asked to consider, and
considering only the physical conditions allowed:
[One] Has the injured worker reached maximum medical
improvement (MMI) with regard to each specified allowed
condition? Briefly describe the rationale for your opinion.
Yes. Please refer to the narrative DISCUSSION: section
above. The injured worker is on a stable medication regimen,
has no pending invasive procedures, and is currently
receiving supportive medical care for the allowed conditions
in the claim. Therefore, he has reached maximum medical
improvement for the allowed conditions in the claim.
[Two] Based on the American Medical Association's Guides
to the Evaluation of Permanent Impairment - 5th Edition,
with reference to the Industrial Commission Medical
Examination Manual, provide the estimated percentage of
whole person impairment arising from each allowed
condition. Please list each condition and whole person
impairment separately, and then provide the combined
whole person impairment. If there is no impairment,
indicate zero percent.
[A table is omitted.]
The amount of pain was disproportionate for what is
expected with the allowed conditions in the claim and their
associated impairment as calculated above, so 3 percent
additional impairment for pain was combined into the
impairment rating.
No. 13AP-37 10
It is my opinion that the combined whole person impairment
for the allowed physical conditions (which I have been asked
to address in this report) in the claim(s) is the percentage in
the bottom right corner of the table above.
[Three] Complete the enclosed Physical Strength Rating
form. In your narrative report provide a discussion setting
forth physical limitations resulting from the allowed
condition(s).
The PHYSICAL STRENGTH RATING form is completed and
enclosed. These lifting, standing, running, repetitive motion,
and sitting limitations are necessary due to the allowed back
conditions in the claim addressed in this report. Please refer
to the narrative DISCUSSION: section above regarding the
rationale for the physical limitations.
(Emphasis sic.)
{¶ 21} 5. On April 19, 2012, Dr. Forte completed a Physical Strength Rating form.
On the form, Dr. Forte indicated by his mark that relator is capable of "Sedentary Work."
The form presents the definition of sedentary work:
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
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.
Responding to the preprinted query "FURTHER limitations, if indicated,"
Dr. Forte wrote: "None. Please refer to the narrative DISCUSSION: section above
regarding the rationale for the physical limitations." (Emphasis sic.)
{¶ 22} 6. Following an August 7, 2012 hearing, a staff hearing officer ("SHO")
issued an order denying relator's application for PTD compensation. The SHO's order
explains:
No. 13AP-37 11
It is the order of the Hearing Officer that the Application for
Permanent Total Disability, filed on 11/11/2011, is denied.
The Injured Worker suffered the injury recognized in this
claim on 05/03/1990 when he was employed with the named
Employer as a transportation driver. On the date of injury,
he was coming down a ramp with a two-wheeler when he
slipped. At the time of the injury, the two-wheeler was
loaded up with product. The claim was recognized initially
for a sprain condition and was subsequently amended to
include degenerative disc disease and a bulging disc at L5-S1.
The Injured Worker underwent a surgical procedure
consisting of a laminectomy in March of 1992. The Injured
Worker was able to return to work for a different Employer
working as a Delivery Driver. The allowed conditions in this
claim are limited to conditions involving the Injured
Worker's lumbar spine.
The Injured Worker continued to work up until 2003. He
had a subsequent injury involving his shoulder during his
period of employment with his employer. The Injured
Worker had a second surgical procedure in this claim on his
low back area in 2009. That surgical procedure consisted of a
discectomy and fusion at the L5-S1 area. The Injured Worker
has not worked since that second surgical procedure.
The Injured Worker was examined at the request of the
Industrial Commission by Dr. Thomas Forte on 04/19/2012.
Dr. Forte performed a physical examination of the Injured
Worker and reviewed selected medical records for this claim
file.
He noted the two surgical procedures as well as the
subsequent pain management treatment including
medications, epidural injections, physical therapy. Dr. Forte
stated that the Injured Worker was in a wheelchair on the
date of the exam. The Injured Worker told Dr. Forte that he
used a wheelchair when he was traveling anywhere that
involved more than a very short distance of walking. He was
able to get out of the wheelchair and walk using a cane
during the examination. Dr. Forte stated that the Injured
Worker has reached maximum medical improvement for the
recognized conditions in the claim. He stated that the
Injured Worker was stable in terms of his medication
regimen and has no pending invasive procedures. Dr. Forte
indicated that the Injured Worker has a 30% whole person
No. 13AP-37 12
impairment as a result of the allowed conditions in the claim.
On a Physical Strength Rating form attached to his report,
Dr. Forte stated that the Injured Worker was capable of
performing sedentary work activity when considering the
allowed conditions.
Sedentary work is defined by the Industrial Commission as
exerting up to ten pounds of force occasionally and/or a
negligible amount of force frequently 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. Dr. Forte explained that the
Injured Worker has these restrictions as the result of his
limited and painful lumbar range of motion, his right lower
extremity weakness and altered sensation.
The Hearing Officer finds that the Injured Worker has
reached maximum medical improvement for the allowed
conditions in this claim. The Hearing Officer finds that the
Injured Worker is unable to return to his former position of
employment as a driver as the result of the allowed low back
conditions. However, the Hearing Officer finds that the
Injured Worker retains the residual functional capacity to
perform sedentary work activity. In making this finding, the
Hearing Officer relies upon the findings and the opinion
from Dr. Forte.
The Injured Worker's attorney argued that Dr. Forte's report
was defective because he indicated that the Injured Worker's
physical limitations would be set forth on a Physical Strength
Rating form and then indicated on the Physical Strength
Rating form that the narrative report would discuss the
rationale for the physical limitations. The Injured Worker's
attorney argued that Dr. Forte's opinion was unclear as to
the Injured Worker's physical limitations. The Hearing
Officer rejects this argument and finds that Dr. Forte sets
forth the physical limitations by indicating that the Injured
Worker can perform sedentary work activity. On the Physical
Strength Rating form, he indicated that the narrative report
would set forth the rationale for the noted physical
limitations. The body of the report does contain Dr. Forte's
opinion as to the basis for the sedentary work restrictions.
The Hearing Officer finds that Dr. Forte's report is not
defective.
No. 13AP-37 13
The Injured Worker is currently 60 years of age. He is a high
school graduate having completed high school in 1971.
Following his high school graduation, he attended Laurel
Oaks truck driver training. He testified at hearing that he
performed well in this training program. On the application,
he indicated that he is able to read, write, and perform basic
math. His previous work history involves approximately 30
years of work as a truck driver.
The Hearing Officer finds that the Injured Worker's age of 60
years is a neutral vocational factor which would be neither a
barrier nor an asset to him in attempting a return to the
workforce. An extensive re-training program would not be
appropriate for him, but he could undergo short-term, on-
the-job training to learn a new job. The Hearing Officer finds
that the Injured Worker's education level is a positive
vocational factor. The Injured Worker is [a] high school
graduate and did attend vocational training after his high
school graduation. He is able to read, write, and perform
basic math. The Hearing Officer finds that the Injured
Worker has demonstrated the intellectual capacity to obtain
his degree and pursue further training. The Hearing Officer
finds that the Injured Worker's previous work history is a
neutral vocational factor. The Injured Worker demonstrated
a relatively long work history with several different
employers. He worked only as a truck driver with varying
degrees of required physical exertion besides the driving
requirements. However, the Injured Worker demonstrated
the determination and resourcefulness to return to work
with a different employer following this injury and his first
surgical procedure. The Injured Worker has not worked
since 2003. However, the Hearing Officer finds that the
reason he left the workforce in 2003 was not related to this
industrial injury.
Based upon the Injured Worker's ability to return to
sedentary work activity and his education level as a high
school graduate, the Hearing Officer finds that the Injured
Worker is capable of performing the duties of sustained
remunerative employment. Therefore, the Hearing Officer
finds that the Injured Worker is not permanently and totally
disabled.
The Application for Permanent and Total disability, filed on
11/11/2011 is hereby denied.
No. 13AP-37 14
This order is based upon the medical report from Dr. Forte
dated 04/19/2012.
{¶ 23} 7. On October 10, 2012, the three-member commission mailed an order
denying relator's request for reconsideration.
{¶ 24} 8. On January 14, 2013, relator, Marvin Smith, filed this mandamus action.
Conclusions of Law:
{¶ 25} The sole issue is whether the report of Dr. Forte is some evidence upon
which the commission can rely to support its determination that "residual functional
capacity" is at the sedentary level. Ohio Adm.Code 4121-3-34(B)(4).
{¶ 26} Finding that Dr. Forte's report provides the some evidence supporting the
commission's determination of residual functional capacity, it is the magistrate's decision
that this court deny relator's request for a writ of mandamus, as more fully explained
below.
{¶ 27} Equivocal medical opinions are not evidence. State ex rel. Eberhardt v.
Flxible Corp., 70 Ohio St.3d 649, 657 (1994). Equivocation occurs when a doctor
repudiates an earlier opinion, renders contradictory or uncertain opinions or fails to
clarify an ambiguous statement. Id.{¶ 28} A medical report can be so internally inconsistent that it cannot be some
evidence upon which the commission can rely. State ex rel. Lopez v. Indus. Comm., 69
Ohio St.3d 445 (1994); State ex rel. Taylor v. Indus. Comm., 71 Ohio St.3d 582 (1995).
However, a court will not second-guess a doctor's medical expertise to support a claim of
internal inconsistency. State ex rel. Young v. Indus. Comm., 79 Ohio St.3d 484 (1997).
{¶ 29} Here, relator argues that Dr. Forte's report is equivocal and internally
inconsistent:
Dr. Thomas Forte strongly implied that he was going to find
additional restrictions as well. In the Physical Examination
Section of his report, he noted problems with muscle spasm,
restrictions on range of motion, positive straight leg raising,
decrease in sensation in the right lower extremity, and
difficulty walking. * * * In the Discussion Portion of his
report, he mentioned two surgeries, found that the condition
had stabilized, and then stated that the physical limitations
would be outlined in the Physical Strength Rating Form
No. 13AP-37 15
below. "These lifting, standing, running, repetitive motion,
and sitting limitations are necessary due to the allowed back
conditions in the claim addressed in this report, and these
limitations base upon his limited and painful lumbar range
of motion, right lower extremity weakness, and altered
sensation."
At the end of his report, he stated that the rationale for the
physical limitations were to be found in the Discussion
Section of the report. * * * On the Physical Strength Rating
form, he stated there were no limitations beyond sedentary
work and the rationale was in the Discussion Section. * * *
His report was like a circle, it kept going round and round,
and there was no end to it. It was ambiguous and
contradictory.
(Relator's brief, at 10-11.)
{¶ 30} Relator's argument lacks merit. There is no inconsistency or equivocation
between Dr. Forte's narrative report and his completion of the physical strength rating
form.
{¶ 31} In the "Discussion" portion of the narrative report, Dr. Forte evaluates
impairment and concludes that relator has a 30 percent whole person impairment. In the
"Discussion" portion of the narrative report, Dr. Forte does note that the physical strength
rating form sets forth the limitations due to the allowed conditions of the claim. Those
limitations are set forth in the definition of sedentary work that Dr. Forte marked on the
form.
{¶ 32} It is true that, in his physical strength rating form, Dr. Forte refers the
reader back to the "Discussion" section of the narrative report.
{¶ 33} Clearly, the narrative report and the physical strength rating form are
interrelated. It was thus appropriate for Dr. Forte to have each report reference the other.
Regardless of the alleged circularity, there was no equivocation or internal inconsistency.
Again, relator's argument lacks merit.
{¶ 34} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
No. 13AP-37 16
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).