The opinion
[Cite as State ex rel. HCR ManorCare, Inc. v. Indus. Comm., 2026-Ohio-2271.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. HCR ManorCare, Inc., :
Relator, :
v.
: No. 24AP-729
Industrial Commission of Ohio et al.,
: (REGULAR CALENDAR)
Respondents. :
D E C I S I O N
Rendered on June 16, 2026
On brief: Kegler, Brown, Hill & Ritter, and Jacob Dobres,
for relator.
On brief: Dave Yost, Attorney General, and Justin Marshall,
for respondent Industrial Commission of Ohio.
On brief: Aaron A. Bucco, for respondent Patricia R. Baesel.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE’S DECISION
MENTEL, J.
{¶ 1} Relator, HCR ManorCare, Inc., brought this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio, to vacate its order
granting the application of respondent, Patricia R. Baesel, for permanent total disability
(“PTD”) compensation and issue an order denying her application. Pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a
magistrate. After reviewing the stipulated record and the arguments of the parties, the
magistrate has concluded that relator has not demonstrated a clear legal right to the relief
it seeks and therefore recommends that we deny the request for a writ of mandamus.
No. 24AP-729 2
{¶ 2} As explained more fully in the magistrate’s decision, Ms. Baesel suffered a
back injury in 2011 while working. Although she initially returned to work after the injury,
she stopped working altogether in 2021 and applied for PTD on November 21, 2023. A staff
hearing officer (“SHO”) granted her application for PTD compensation on April 3, 2024,
based upon an October 16, 2023 report of Rohn Kennington, M.D., concluding that Ms.
Baesel was unable to perform sustained remunerative employment. After the commission
denied relator’s request for reconsideration, it filed the present action in mandamus. The
magistrate recommends denying relator’s request for relief.
{¶ 3} Relator poses three objections to the magistrate’s decision and
recommendation. The first and third objections are interrelated and will be considered
together. The first objection states:
The Magistrate erred by finding that the Commission properly
relied upon Dr. Kennington’s internally inconsistent medical
report that found Claimant’s conditions “unstable” yet still
somehow adequate to support “permanent” disability.
(Dec. 29, 2025 Objs. at 5.)
{¶ 4} The third objection states:
The Magistrate erred by reading into the Commission’s PTD
order the view that Dr. Kennington’s discussion of Claimant’s
alleged frequent visits with her providers only impacted an
analysis of vocational rehabilitation and not her overall medical
instability or workability.
Id. at 12.
{¶ 5} Relator argues that Dr. Kennington’s report is internally inconsistent because
his assessment that Ms. Baesel’s “conditions remain unstable and she requires frequent
visits with her various providers” is incompatible with a claimant being permanently
disabled. (Oct. 16, 2023 Independent Medical Examination of Rohn T. Kennington, M.D.,
hereinafter “Kennington Report.”) In relator’s view, Dr. Kennington’s description
contradicts the regulatory definition of maximum medical improvement. The regulation
provides:
“Maximum medical improvement” is a treatment plateau
(static or well-stabilized) at which no fundamental functional
or physiological change can be expected within reasonable
medical probability in spite of continuing medical or
rehabilitative procedures. An injured worker may need
supportive treatment to maintain this level of function.
No. 24AP-729 3
Adm.Code 4121-3-32(A)(1).
{¶ 6} Both the SHO and the magistrate addressed this purported inconsistency.
The SHO’s order specifically stated:
Although Dr. Kennington mentioned the Injured Worker’s
need to attend medical appointments and inability to do full-
time work, this was in the context of his opinion whether
vocational rehabilitation would be of benefit, not regarding her
physical ability to perform sustained remunerative
employment. Thus, this allegedly erroneous analysis regarding
the non-medical disability factor of vocational rehabilitation is
not relevant as the decision herein is based solely upon the
Injured Worker’s medical disability.
(Apr. 3, 2024 Order at 2.)
{¶ 7} The magistrate rejected relator’s argument, citing State ex rel. Manpower of
Dayton v. Indus. Comm. of Ohio, 2015-Ohio-2650, ¶ 47 (10th Dist.), to state that if “a
physician’s medical and vocational commentaries can be separated, the commission may
disregard the physician’s superfluous opinions on vocational matters and accept the purely
medical opinion.” (Mag.’s Decision at 13.) The magistrate is correct as a matter of law and
its application to the facts of this case. Dr. Kennington’s report stated that Ms. Baesel
“cannot participate in vocational rehabilitation or retraining since her conditions remain
unstable and she requires frequent visits with her various providers, which renders her
unable to perform productive labor for a full work schedule,” but his conclusion that Ms.
Baesel was “unable to perform sustained remunerative employment” was “based solely on
the allowed conditions” of the claim. (Emphasis added.) (Kennington Report at 2.) This
court has stated that “when it is clear from the doctor’s report that he or she rendered a
medical opinion based solely on the allowed conditions, the commission may rely on the
medical opinion while ignoring any superfluous vocational opinion offered by the
doctor.” State ex rel. DaimlerChrysler Corp. v. Bilbao, 2005-Ohio-2802, ¶ 4 (10th Dist.).
Dr. Kennington’s assessment of Ms. Baesel’s ability to participate in vocational
rehabilitation was, as the SHO stated, not relevant to the analysis resulting in the finding
that she is permanently disabled.
{¶ 8} For the same reason, Dr. Kennington’s report was not internally inconsistent.
His reasons for finding that Ms. Baesel was unable to perform sustained remunerative
employment differed from those supporting the “superfluous vocational opinion” that
No. 24AP-729 4
relator cites. Id. This is not a case where “two very different opinions of [the claimant’s]
disability emerge” from the doctor’s report. State ex rel. Honda of Am., Mfg., 2017-Ohio-
8972, ¶ 23 (10th Dist.) (holding that internally inconsistent report indicating both that
“claimant can perform part-time ‘in a work situation’ ” and that “claimant cannot perform
sustained remunerative employment” was not some evidence upon which the commission
could rely when granting PTD). As the SHO and the magistrate noted, the vocational
opinion played no part in the SHO’s decision.
{¶ 9} Finally, relator argues that Dr. Kennington’s assessment that Ms. Baesel
“cannot participate in vocational rehabilitation or retraining since her conditions remain
unstable and she requires frequent visits with her various providers, which renders her
unable to perform productive labor for a full work schedule” was not only incorrect as a
matter of fact, but also demonstrates that he did rely on findings that her condition was
unstable and that she saw providers frequently to conclude that she was unable to perform
sustained remunerative employment. (Objs. at 9; Kennington Report at 2.) We do not read
the final subordinate clause of the sentence to relate to her inability to perform sustained
remunerative employment, which was “based solely on the allowed conditions” of Ms.
Baesel’s claim. (Kennington Report at 2.) Rather, Dr. Kennington’s observation is that a
consequence of Ms. Baesel’s inability to participate in vocational or retraining was that she
would not be able to work in the future. The observation is unremarkable but independent
of the medical reason for Dr. Kennington’s finding of permanent disability. As mentioned,
her inability to participate in vocational rehabilitation, was “superfluous” and the SHO
expressly disavowed any reliance on this statement when granting PTD. DaimlerChrysler
Corp. at ¶ 4. We find it superfluous as well, and therefore overrule the first and third
objections.
{¶ 10} Relator’s second objection states:
The magistrate erred by finding that the Commission properly
relied upon Dr. Kennington’s report when he based his PTD
opinion on Claimant’s reported limitations rather than upon
his physical examination findings.
(Objs. at 7.)
{¶ 11} Relator asserts that Dr. Kennington relied upon Ms. Baesel’s “self-report”
that she “cannot sit or stand for more than 10 minutes,” not from any “physical examination
findings.” Id. Dr. Kennington’s report does state, in its “History and Mechanism of Injury,”
No. 24AP-729 5
that Ms. Baesel “reports constant low back pain with radiation of pain and numbness into
the right leg,” and that the “symptoms are worse with any sitting/standing for more than
10 minutes at a time before she needs to change positions.” (Kennington Report at 1.)
{¶ 12} However, on the second page of Dr. Kennington’s report, following the
caption “Physical Examination,” Dr. Kennington catalogs the findings of the physical exam,
which include the following:
The injured worker ambulate[d] with a mildly antalgic gait,
favoring her right leg. She is able to transfer from sitting to
standing, and onto and off of the exam table, with mild
difficulty. Range of motion testing for the lumbosacral spine
reveals some painful and decreased range of motion . . . There
is diffuse tenderness to palpation across the lumbosacral spine
region. Inspection of the back reveals multiple well-healed
surgical scars.
(Kennington Report at 2.)
{¶ 13} In addition, Dr. Kennington’s neurological examination revealed “decreased
sensation to light touch” in a portion “of the right lower extremity in the L5/S1 nerve root
distribution.” Id. He describes the extent of Ms. Baesel’s “[d]eep tendon reflexes,” the
results of “[s]traight leg raise testing,” and the results of “[s]trength testing” that he
performed. Id. The references to palpation, inspection, testing, and sensitivity to touch
indicate that Dr. Kennington did not only rely on Ms. Baesel’s self-reporting of symptoms,
as relator argues, and made multiple findings based on the physical exam that were
germane to his ultimate conclusion.
{¶ 14} Relator criticizes Dr. Kennington for failing to “mention, or consider, his
physical exam findings” in the report’s final section, where he concludes that Ms. Baesel is
permanently disabled, and claims that there he is only “parroting” her self-report of being
unable to sit or stand for longer than ten minutes at a time. (Objs. at 8.) Dr. Kennington
actually states: “She cannot sit/stand for periods of time greater than 10 minutes, nor is she
able to climb/crawl/kneel/squat.” (Kennington Report at 2.) He does not state that this
part of his conclusion is based solely on Ms. Baesel’s self-reported symptoms or that he
ignored the physical exam findings before reaching this conclusion, as relator suggests.
Furthermore, he describes physical limitations beyond what Ms. Baesel reported. Given
that his conclusion immediately follows the physical examination findings, the failure to
immediately reference them again is immaterial and relator’s suggestion that he ignored
No. 24AP-729 6
them is implausible. When Dr. Kennington’s report is read as a whole, instead of isolating
portions of it to create unsupported inferences, it is some evidence upon which the
commission could properly rely to determine that Ms. Baesel was permanently disabled.
The second objection is overruled.
{¶ 15} “To be entitled to the extraordinary remedy of mandamus, a relator must
establish a clear legal right to the relief requested, a clear legal duty on the part of the bureau
to provide the relief, and the lack of an adequate remedy in the ordinary course of the law.”
State ex rel. Aaron’s, Inc. v. Ohio Bur. of Workers’ Comp., 2016-Ohio-5011, ¶ 18, citing
State ex rel. GMC v. Indus. Comm., 2008-Ohio-1593, ¶ 9. We agree with the magistrate
that relator has shown no right to the relief requested, and that some evidence supported
the commission’s order granting Ms. Baesel’s application for PTD compensation.
Accordingly, we adopt the decision of the magistrate in full and deny the petition for a writ
of mandamus.
Writ of mandamus denied.
BEATTY BLUNT and EDELSTEIN, JJ., concur.
_____________
No. 24AP-729 7
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. HCR ManorCare, Inc., :
Relator, :
v. : No. 24AP-729
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE’S DECISION
Rendered on December 15, 2025
Kegler, Brown, Hill & Ritter, and Jacob Dobres, for relator.
Dave Yost, Attorney General, and John Smart, for respondent
Industrial Commission of Ohio.
Aaron A. Bucco, for respondent Patricia R. Baesel.
IN MANDAMUS
{¶ 16} Relator, HCR ManorCare, Inc. (“employer”), has filed this original action
requesting that this court issue a writ of mandamus ordering respondent, Industrial
Commission of Ohio (“commission”), to reverse its decision that granted the application
for permanent total disability (“PTD”) filed by respondent, Patricia R. Baesel (“claimant”)
and to issue an order denying claimant’s application for PTD.
No. 24AP-729 8
Findings of Fact:
{¶ 17} 1. On November 22, 2011, claimant was injured in the course and scope of
her employment with the employer, when she bent down to care for a patient and suffered
sudden pain in her lower back. She filed a worker’s compensation claim, and her claim
was allowed for lumbosacral strain, herniated disc L5-S1, and bilateral sacroiliitis.
{¶ 18} 2. Claimant returned to work following her injury but stopped working in
any capacity in 2021.
{¶ 19} 3. On October 16, 2023, Rohn T. Kennington, M.D., examined claimant and
subsequently issued a report, in which he found the following: (1) claimant ambulates
with a mildly antalgic gate; (2) she can transfer from sitting to standing and on and off
the exam table with mild difficulty; (3) she has decreased range of motion and pain in her
lumbosacral spine; (4) she has tenderness across the lumbosacral spine; (5) she reports
that her symptoms of low back pain with radiation of pain and numbness into the right
leg are worse with any sitting/standing for more than about 10 minutes at a time before
changing positions; (6) in the doctor’s medical opinion, based solely on the allowed
conditions in the claim, and the significantly debilitating nature of the conditions,
claimant is unable to perform sustained remunerative employment; (7) claimant cannot
participate in vocational rehabilitation or retraining since her conditions remain
unstable, and she requires frequent visits with her various providers, which renders her
unable to perform productive labor for a full work schedule; (8) she cannot sit/stand for
periods greater than 10 minutes; (9) she cannot climb/crawl/kneel/squat; (10) she is
unable to perform even sedentary level work; and (11) claimant is permanently and totally
disabled from all forms of employment.
{¶ 20} 4. On November 21, 2023, claimant filed an application for PTD
compensation.
{¶ 21} 5. In a January 15, 2024, Independent Medical Evaluation (“IME”) report,
Michael Rozen, M.D., found the following: (1) claimant is unable to return to her former
position of employment with employer; (2) claimant is capable of sustained remunerative
employment in a sedentary physical demand level category but should be afforded the
opportunity to change positions if the need arises; (3) in a sedentary work environment,
she should refrain from lifting, pushing, and pulling when standing; (4) in a seated
No. 24AP-729 9
position, she can lift up to five pounds frequently and use her hands without impairment;
(5) claimant is able to enter data, do desk work, and do computer work; (6) she should be
afforded the opportunity to change position as the need requires; (7) she can stand and
walk short distances for short periods, less than 15 minutes; (8) she can sit for up to 30
minutes and then should be afforded an opportunity to shift or change position as the
need requires; (9) these restrictions are permanent; (10) she is capable of working as a
supervisor and managing numerous other employees as long as the work does not involve
physically lifting or providing direct patient care; and (11) she has a 34 percent permanent
partial whole-person physical impairment.
{¶ 22} 6. In a February 1, 2024, IME report, Steven A. Cremer, M.D., found the
following: (1) claimant has reached maximum medical improvement (“MMI”); (2) there
is no active treatment plan that would lead to further functional or physiological
improvement; (3) there is no further medical expectation or further functional
improvement based on the allowed conditions; (4) claimant has a whole person
impairment of 28 percent; (5) claimant has impaired ability to sit for more than 30
minutes in one position or walk more than 20 minutes; (6) lifting is limited to 10 pounds
occasionally with no lifting from the low or mid-thigh level or above mid-chest level;
(7) change of position is required every 20 to3o minutes; (8) walking should be limited to
20 minutes 3 to 4 times per day; and (9) claimant is capable of sedentary work with
change of position from seated to standing every 20 to 30 minutes.
{¶ 23} 7. In a March 26, 2024, vocational assessment, Janet Kilbane, M.Ed., found
the following: (1) claimant is capable of office work, which is a sedentary position, in a
medical or non-medical field, as she has directly transferable skills to work in an office in
the medical or a non-medical field; (2) claimant testified that she looked into becoming a
medical coder in 2018 and was accepted at a school to become a medical coder; however,
she did not pursue going to school because she was taking care of her elderly father, and
she did not pursue school at a later date because she changed her mind and was no longer
interested in that line of work; (3) claimant was vague about her computer skills and could
be evaluated through vocational rehabilitation to determine if she would need to update
her computer skills to become marketable; (4) other considerations for a return to work
would be a stand/sit desk, which are becoming more common everyday desks in offices,
No. 24AP-729 10
and ergonomic chairs, keyboards, and headsets for the phone are also quite common in
an office setting; and (5) claimant is not permanently and totally disabled, and she is
capable of sustained remunerative employment.
{¶ 24} 8. After a hearing, a staff hearing officer (“SHO”) issued an order on April 5,
2024, granting claimant’s application for PTD compensation, in which the SHO found the
following: (1) the application for PTD compensation is granted; (2) PTD is awarded from
October 16, 2023, to continue without suspension; (3) based upon the October 16, 2023,
report of Dr. Kennington, claimant is unable to perform any sustained remunerative
employment; thus, it is not necessary to analyze claimant’s non-medical disability factors;
and (4) Dr. Kennington examined claimant on October 16, 2023, and found she had an
antalgic gait favoring the right leg, difficulty transferring on and off the examination table,
significantly decreased and painful range of motion of the lumbar spine, diffuse
tenderness of the lumbosacral spine, and multiple well-healed scars of the lumbar spine,
and he concluded these conditions render claimant permanently and totally disabled; and
(5) although Dr. Kennington mentioned claimant’s need to attend medical appointments
and inability to do fulltime work, this was in the context of his opinion whether vocational
rehabilitation would be of benefit, not regarding her physical ability to perform sustained
remunerative employment; thus, this allegedly erroneous analysis regarding the non-
medical disability factor of vocational rehabilitation is not relevant, as the decision herein
is based solely upon claimant’s medical disability.
{¶ 25} 9. The employer filed a request for reconsideration, which the commission
denied on May 8, 2024.
{¶ 26} 10. On December 10, 2024, the employer filed the instant mandamus
action, requesting that this court issue writs of mandamus ordering the commission to
reverse its decision that granted the claimant’s application for PTD and issue an order
denying claimant’s application for PTD.
Conclusions of Law and Discussion:
{¶ 27} The magistrate recommends that this court deny the employer’s petition for
a writ of mandamus.
No. 24AP-729 11
{¶ 28} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of the
law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 29} A clear legal right to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order that is not supported by any
evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On
the other hand, where the record contains some evidence to support the commission’s
findings, there has been no abuse of discretion and mandamus is not appropriate. State
ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions
of credibility and the weight to be given evidence are clearly within the discretion of the
commission as fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 30} “[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. General Motors Corp. v. Indus.
Comm., 42 Ohio St.2d 278 (1975). Payment of PTD compensation is inappropriate when
there is evidence of (1) actual sustained remunerative employment, (2) the physical ability
to do sustained remunerative employment, or (3) activities so medically inconsistent with
the disability that they impeach the medical evidence underlying the award. State ex rel.
Lawson v. Mondie Forge, 2004-Ohio-6086, ¶ 16. “Permanent total disability is the
inability to do any sustained remunerative work.” State ex rel. Schultz v. Indus. Comm.,
2002-Ohio-3316, ¶ 61. “Work is ‘sustained’ if it consists of an ongoing pattern of activity.”
State ex rel. Bonnlander v. Hamon, 2017-Ohio-4003, ¶ 15. “[W]ork need not be regular
or daily” to qualify as sustained. Id. “[I]ntermittent and occasional” or “part-time” work
may qualify. Id.
{¶ 31} In the present case, the employer argues the following: (1) Dr. Kennington
does not indicate that claimant is unable to perform sustained remunerative employment
based upon the physical examination findings; instead, he appears to accept claimant’s
report that she can only sit or stand for 10 minutes at a time and only drive for short
distances; (2) Dr. Kennington states that his opinion as to claimant’s ability to work is
solely based on the allowed conditions and does not state that it is based on his
No. 24AP-729 12
examination findings; (3) Dr. Rozen’s and Dr. Cremer’s conclusions are specifically based
on their examination and review of the medical records; (4) Dr. Kennington’s statement
that claimant cannot participate in vocational rehabilitation because her condition is
unstable and she requires frequent visits with her providers is contrary to the evidence
that claimant’s conditions had reached MMI and claimant’s testimony that she stopped
treatment in September 2023; (5) the commission failed to properly consider and apply
the legal definition for the ability to perform sedentary work because claimant appears
capable of combining her abilities to sit, stand, and walk to work a part-time job, which
still constitutes sustained remunerative employment; and (6) the commission erred by
failing to consider claimant’s non-medical factors, all of which support that she is capable
of performing sustained remunerative employment.
{¶ 32} With regard to the employer’s first, second, and third arguments, the
magistrate finds no abuse of discretion. The employer first argues that Dr. Kennington
does not indicate that claimant is unable to perform sustained remunerative employment
based upon the physical examination findings and, instead, merely accepts claimant’s
self-opinion that she can only sit or stand for 10 minutes at a time and only drive for short
distances. In its second argument, the employer claims that Dr. Kennington states that
his opinion as to claimant’s ability to work is solely based on the allowed conditions and
does not state that it is based on his examination findings. However, in fact,
Dr. Kennington indicates in his report that he both interviewed and examined claimant.
In the section entitled “Physical examination,” Dr. Kennington found that claimant
ambulates with a mildly antalgic gate; can transfer from sitting to standing and on and off
the exam table with mild difficulty; has decreased range of motion and pain in her
lumbosacral spine; and has tenderness across the lumbosacral spine. Based upon this
physical examination, Dr. Kennington opined that claimant cannot sit/stand for periods
greater than 10 minutes and cannot climb/crawl/kneel/squat. It is clear from
Dr. Kennington’s report that his conclusions as to the ability to do sedentary level work
and the ultimate PTD determination were based upon his examination results and not
merely upon claimant’s subjective complaints. These two arguments, therefore, are
without merit. Given this conclusion, that Dr. Rozen’s and Dr. Cremer’s conclusions are
also based on their physical examination of claimant is irrelevant, as the commission was
within its discretion to rely upon Dr. Kennington’s report rather than Dr. Rozen’s and
No. 24AP-729 13
Dr. Cremer’s reports. See, e.g., State ex rel. Shambaugh v. Indus. Comm., , 2011-Ohio-
3556, ¶ 15 (10th Dist.) (the commission has the exclusive authority to weigh the evidence
and credibility; thus, it is within the discretion of the commission to determine which
medical reports are more credible and should be relied upon). Thus, the employer’s third
argument is also without merit.
{¶ 33} In its fourth argument, the employer asserts that Dr. Kennington’s
statement that claimant cannot participate in vocational rehabilitation because her
condition is unstable and she requires frequent visits with her providers is contrary to the
evidence that claimant’s conditions had reached MMI and claimant’s testimony that she
stopped treatment in September 2023. However, the SHO addressed this issue. The SHO
found that although Dr. Kennington mentioned claimant’s need to attend medical
appointments and inability to do fulltime work, this was in the context of his opinion
whether vocational rehabilitation would be of benefit, not regarding her physical ability
to perform sustained remunerative employment; thus, this allegedly erroneous analysis
regarding the non-medical disability favor of vocational rehabilitation is not relevant, as
the decision herein is based solely upon claimant’s medical disability. Where a physician’s
medical and vocational commentaries can be separated, the commission may disregard
the physician’s superfluous opinions on vocational matters and accept the purely medical
opinion. State ex rel. Manpower of Dayton, Inc. v. Indus. Comm. of Ohio, 2015-Ohio-
2650, ¶ 47 (10th Dist.) (Magistrate’s Decision), aff’d, 2016-Ohio-7741, citing State ex rel.
Ohio State Univ. v. Allen, 2004-Ohio-3839, ¶ 18 (10th Dist.), citing State ex rel. Catholic
Diocese of Cleveland v. Indus. Comm., 1994-Ohio-392. Therefore, the employer’s fourth
argument is without merit.
{¶ 34} In its fifth argument, the employer asserts that the commission failed to
properly consider and apply the legal definition for the ability to perform sedentary work
because claimant appears capable of combining her abilities to sit, stand, and walk to
work a part-time job, which still constitutes sustained remunerative employment. It is
true that an individual can engage in sustained remunerative employment if they can
perform sedentary work. State ex rel. Miller v. Indus. Comm. of Ohio, 2014-Ohio-1742,
¶ 10 (10th Dist.). It is also true that part-time work may qualify as sustained remunerative
employment. See State ex rel. Bonnlander at ¶ 15. Furthermore, where a claimant is
No. 24AP-729 14
capable of working more than four hours per day by combining his or her abilities to sit,
stand, and walk, the commission may find that the worker is capable of sustained
remunerative employment. State ex rel. DeSalvo v. May Co., 2000-Ohio-313.
{¶ 35} However, here, in its argument, the employer does not explain how it
appears that claimant is capable of combining her abilities to sit, stand, and walk to work
a part-time job. Adm.Code 4121-3-34(B)(2)(a) defines “sedentary work” as follows:
(a) “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.
Adm.Code 4121-3-34 (B)(2)(a).
{¶ 36} In his report, Dr. Kennington’s finding regarding claimant’s ability to
sit/stand is inconsistent with sedentary employment, as defined by Adm.Code 4121-3-
34(B)(2)(a). Dr. Kennington found claimant cannot sit/stand for periods greater than 10
minutes. According to Adm.Code 4121-3-34(B)(2)(a), sedentary work involves sitting
most of the time. Claimant’s inability to sit for longer than 10 minutes at a time supports
a finding that claimant’s restrictions are so limiting that no sedentary work is feasible, as
any brief periods of possible work activity would not constitute sustained remunerative
employment. See generally State ex rel. Freedom Ctr. v. Indus. Comm. of Ohio, 2024-
Ohio-1376, ¶ 13 (10th Dist.), quoting State ex rel. Owens Corning Fiberglass v. Indus.
Comm., 2004-Ohio-3841, ¶ 56 (10th Dist.) (finding when a physician sets 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); and State ex rel. Howard v. Millennium Inorganic Chems., 2004-
Ohio-6603, ¶ 9 (10th Dist.), quoting State ex rel. Clevite Elastomers v. Torok, 2002-Ohio-
4770, ¶ 14 (10th Dist.). Therefore, the employer’s argument is without merit.
No. 24AP-729 15
{¶ 37} In its sixth argument, the employer argues that the commission erred by
failing to consider claimant’s non-medical factors, all of which support that she is capable
of performing sustained remunerative employment. However, the magistrate has found
that there was some evidence to support a finding that claimant was incapable of
sustaining any remunerative employment. If the impairment prohibits the injured worker
from performing any sustained remunerative employment, the commission must find
that the injured worker is permanently and totally disabled without the consideration of
the non-medical factors. See Adm.Code 4123-3-34(D)(2)(a) and (b). Therefore, the
employer’s sixth argument is without merit.
{¶ 38} Accordingly, it is the magistrate’s recommendation that this court should
deny the employer’s petition for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
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.