State ex rel Cale v. Industrial Commission of Ohio6/13/2002
(REGULAR CALENDAR)
DECISION
IN MANDAMUS
. Relator, Timothy N. Cale, has filed this original action in mandamus requesting this court to issue a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order denying his application for permanent total disability compensation or, in the alternative, to issue an order that complies with the requirements of State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, and State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167.
. This court referred the matter to a magistrate, pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals, who issued a decision, including findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate concluded that relator had failed to establish that respondent-commission had abused its discretion in its decision.
. No objections have been filed to the decision of the magistrate.
. Finding no error or other defect of law on the face of the decision of the magistrate, pursuant to Civ.R. 53, we adopt the decision of the magistrate as our own, including the findings of fact and conclusions of law contained in it. In accordance with the decision of the magistrate, the requested writ is denied.
Writ of mandamus denied.
PETREE and BROWN, JJ., concur.
APPENDIX A
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
No. 01AP-1143
State of Ohio ex rel. Timothy N. Cale, Relator, v. Industrial Commission of Ohio (REGULAR CALENDAR) and Timco, Inc., Respondents.
MAGISTRATE'S DECISION
Rendered on February 26, 2002
Philip J. Fulton & Associates, and William A. Thorman, III, for relator.
Betty D. Montgomery, Attorney General, and Jacob Dobres, for respondent Industrial Commission of Ohio.
IN MANDAMUS
Relator, Timothy N. Cale, filed this original action asking the court to issue a writ of mandamus compelling respondent Industrial Commission of Ohio to vacate its order denying compensation for permanent total disability ("PTD") and to issue an order that grants compensation, or, in the alternative, that complies with State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, and State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. Findings of Fact:
1. In February 1985, Timothy N. Cale ("claimant") sustained an industrial injury, and his workers' compensation claim was allowed for amputation of the left index finger and laceration of the left thumb. In December 1985, claimant sustained another injury, and his claim was allowed for strained right hip and acute lumbosacral strain.
2. In December 1998, claimant filed a PTD application, supported by an opinion from Dayle Snyder, M.D., who stated that it "certainly does appear that Tim Cale will never be able to return to gainful employment." Dr. Snyder noted that the "Workers' Compensation doctors" appeared to have difficulty assessing claimant's permanent disability because "he already has cerebral palsy, and has had that all his life."
3. In March 1999, claimant was examined on behalf of the commission by Kapala Rao, M.D., who opined that claimant could sit for no more than three hours per work day, stand for no more than three hours, and walk for no more than three hours. He limited lifting to no more than ten pounds and prohibited activities such as stooping and crouching.
4. A vocational assessment was provided by Deborah Nolte, Ph.D., who noted inter alia that claimant's age and education w
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