I believe that the magistrate was completely correct in her analysis of the pertinent law and facts. I would, therefore, adopt the findings of fact and conclusions of law contained in the magistrate's decision. I would, as a result, grant a limited writ of mandamus.

In April of 1995, Ms. Doolittle cut her hand while working as a shipping clerk for Master Marketing Company. Her workers' compensation claim was allowed for laceration of the right hand and reflex sympathetic dystrophy ("RSD") for the right hand. The RSD has left her with little functional use of her right hand. A report from James P. Klejka, M.D., indicates that she is capable only of fingering activity on an infrequent basis with her right hand. Her right hand is her dominant hand.

In refusing to grant permanent total disability, the commission relied upon a vocational report from Roger Livingston, Ph.D. Dr. Livingston claimed to accept the medical restrictions from Dr. Klejka, but then reported Ms. Doolittle capable of various jobs which are clearly outside her physical capabilities if Dr Klejka's restrictions were truly accepted. For instance, Dr. Livingston suggests that Ms. Doolittle is capable of working as an escort-vehicle driver and a preparer (who uses hand tools for cutting and polishing).

Dr. Livingston also used the medical report of George A. Hunter, M.D. Dr. Hunter found Ms. Doolittle capable of sedentary employment in an occupation which involved "minimal use of the right hand."

The Industrial Commission ("commission") found both positive and negative factors to exist in regard to Ms. Doolittle's employment potential. She is sixty-one years old, which was viewed as a negative, but not a determinative factor. She completed high school and has a long history of employment, which were viewed as positive factors. Given the positives and negatives, the commission is particularly in need of accurate vocational information.

I do not view Dr. Livingston's vocational report as being accurate, given its obvious flaws.

Again, I would grant a limited writ of mandamus. Since the majority of this panel does not, I respectfully dissent.

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. The magistrate concluded that the commission abused its discretion in relying on a vocational report that the magistrate determined omitted a crucial restriction. The magistrate concluded that this court should issue a limited writ of mandamus but found no violation of Stephenson in the commission's analysis.

Respondent, Master Marketing Company, filed objections to the decision of the magistrate arguing that she had impermissibly substituted her factual determination for that of the commission. We agree. The reduction of the medical evaluations performed on relator to brief summaries does not demonstrate a failure on the part of the vocational evaluator to have considered the underlying medical evaluations in full. This characterization by the magistrate effectively substitutes her judgment for that of the commission. Accordingly, the objections to the decision of the magistrate are sustained.

Following independent review pursuant to Civ.R. 53, we find that the magistrate has properly determined the pertinent facts. However, we disagree with her conclusion of law that the commission had abused its discretion in relying on the vocational report of Dr. Livingston. We find that the decision of the commission was supported by some evidence, complied with the requirements of Noll and Stephenson, supra, and that the requested writ is thereby denied.

Objections sustained; writ of mandamus denied.

DESHLER, J., concurs.

TYACK, J., dissents.