State ex rel. Block v. Indus. Comm.

[Cite as State ex rel. Block v. Indus. Comm., 

.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Michael E. Block,                        :

                 Relator,                              :             No. 20AP-137

v.                                                     :         (REGULAR CALENDAR)

Industrial Commission of Ohio et al.,                  :

                 Respondents.                          :


                                              DECISION

                                   Rendered on December 13, 2022


                 On brief: Denio A. Leone, LLC, and Denio A. Leone, for
                 relator.

                 On brief: Dave Yost, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

MENTEL, J.
        {¶ 1} Relator, Michael E. Block, brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate
its order denying his request for compensation for the total loss of use of his right hand and
to award him the denied compensation. Pursuant to Civ.R. 53 and Loc.R. 13(M) of the
Tenth District Court of Appeals, this matter was referred to a magistrate.
        {¶ 2} As reflected in the facts given in the magistrate's decision, Mr. Block was
injured on December 12, 2012, during the course of his employment as a roofer when he
fell from a residential roof onto a concrete walkway. He suffered a number of injuries, most
prominently to the right wrist. After surgery and years of treatment, he filed a claim on
May 9, 2019, for the total loss of use of the right hand. On August 20, 2019, a district
hearing officer ("DHO") granted Mr. Block total loss of use compensation. The commission
No. 20AP-137                                                                               2

appealed and a staff hearing officer ("SHO") vacated the DHO's order on October 5, 2019.
After exhausting his administrative avenues of appeal, Mr. Block filed a complaint for a writ
of mandamus.
       {¶ 3} The magistrate has rendered a decision, attached below, that includes
findings of fact and conclusions of law. He recommends denying Mr. Block's request for a
writ of mandamus. Mr. Block has filed objections to the magistrate's decision. 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, 

 (1990), quoting State ex rel. Consol. Rail Corp. v. Gorman,

 (1982); State ex rel. Fitzgerald v. Bd. of Trustees of Ohio Police &
Fire Pension Fund, 10th Dist. No. 14A

. "A clear legal right exists
where the [commission] abuses its discretion by entering an order which is not supported
by 'some evidence.' " 

       {¶ 4} 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 & Machine Co., 

 (1986); State ex rel. Barnett v.
Indus. Comm. of Ohio, 10th Dist. No. 14AP-628, 

.              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, 

, ¶ 4, citing
State ex rel. Pavis v. Gen. Motors Corp., 

 (1992).
       {¶ 5} Mr. Block's first objection is that "[t]he Magistrate's Decision fails to
adequately address the propriety of the Industrial Commission's conclusion that Relator
presented no proof of permanent functional limitations in the use of his right hand."
(July 26, 2021 Objs. at 1.) Mr. Block first quotes the October 5, 2019 order of the SHO
vacating the DHO's loss of use award, which stated as follows:
No. 20AP-137                                                                              3

              The request for payment of a scheduled loss award for total loss
              of use of the right hand is denied. This finding is based on two
              factors. The Injured Worker has not presented proof that the
              functional limitations in the use of his right hand are
              permanent. In addition, the 06/21/[2019] report of Mark
              Pelligrino, M.D., documents that the Injured Worker retains
              some function of the hand and has not lost function in the hand
              for all practical purposes. All proof on file was reviewed and
              considered.

       {¶ 6} Mr. Block points to "the arguments made by counsel for the Bureau of
Worker's Compensation * * * to the SHO on the issue of permanency" as the basis for the
SHO's conclusion that "evidence was lacking on proof of permanency." (Objs. at 2.)
According to Mr. Block, the magistrate has chosen "to ignore these arguments" and instead
discusses the findings of Dr. George's report as the possible basis for the SHO's conclusion
that Mr. Block had not presented evidence to prove his claim. He considers it inconsistent
for the magistrate to refuse to speculate on whether or not the arguments made to the SHO
factored into its finding that he had presented no proof of his claim while at the same time
speculating as to how Dr. George's report may have constituted grounds for the same
finding: "In order for the parties to clearly ascertain what the SHO relied upon, it was
incumbent upon her to specify the grounds and findings upon which this important factor
was based. This was not done." Id. at 4.
       {¶ 7} Mr. Block had the burden of proving that he was entitled to compensation
under R.C. 4123.57(B) for the total loss of use of his right hand. State ex rel. Varney v.
Indus. Comm. of Ohio, 

, 

. It was his burden to
"demonstrate with medical evidence a total loss of use of the body part at issue for all
practical purposes." 

 The magistrate did not err by discussing the central piece of
medical evidence Mr. Block submitted as proof of total loss in order to explain that the
SHO's finding—that Mr. Block had not "presented proof that the functional limitations in
the use of his right hand are permanent"—was based on some evidence in the record. (Stip.
at 90, Oct. 5, 2019 Order.) Furthermore, and most importantly, Mr. Block has not
explained how the magistrate's consideration of the argument against the award by
another party would have demonstrated an abuse of discretion by the SHO and that he
would therefore have a clear legal right in mandamus. The first objection is overruled.
No. 20AP-137                                                                                   4

       {¶ 8} Mr. Block's second objection states: "The Magistrate's Decision incorrectly
presumes the Commission's Order regarding lack of proof of permanency was based upon
the 'two fingers plus' theory, and also incorrectly posits that an injured worker must have a
finger or hand allowance in order to receive benefits for loss of use of a hand." (Obj's at 5.)
Mr. Block asserts that "[i]t is not appropriate for the Magistrate to speculate as to which
theory was the basis for the Commission's denial of loss of use, and that it was "speculative"
for him to conclude "that it was one theory over the other that was not satisfied by the
evidence." Id. at 6-7.
       {¶ 9} As Mr. Block points out, R.C. 4123.57(B) allows a claimant to prove a total
loss of use of the hand in two ways. "The 'flat loss' theory is premised upon amputation loss
or loss of use of the fingers and parts of the hand." State ex rel. Ferrolux Metals Co. v. Indus.
Comm. of Ohio, 10th Dist. No. 13AP-463, 

, citing State ex rel.
Timmerman Truss, Inc. v. Indus. Comm., 

, 

, ¶ 24. The
"two fingers plus" theory corresponds to "the loss of two or more fingers by amputation or
ankylosis" under R.C. 4123.57(B). Ferrolux at ¶ 12.
       {¶ 10} We disagree with Mr. Block's characterization of the magistrate's analysis.
While the magistrate did appear to reference the "two fingers plus" theory, he did not
presume that any loss of use award required "the loss of use of two or more fingers,"
although this phrase appears on page ten of his decision. Reviewing the magistrate's
discussion in its entirety, we conclude that his focus was whether Dr. George's report
supported Mr. Block's contention of having "suffered a total loss of use of the right hand."
(Mags. Decision at 16.) As the magistrate noted, Dr. George described "some loss of
functionality," and this was some evidence for the SHO to then conclude that the report
"was insufficient to support a finding that there was a total loss of use and that any loss of
use was permanent." 

 Dr. Pellegrino's report constituted another piece of "some
evidence" for the finding. 

 Thus, the magistrate's discussion was focused on whether the
substance of the two reports constituted "some evidence" for the SHO's decision. The
second objection is overruled.
       {¶ 11} In the third objection, Mr. Block states: "The Magistrate's Decision finding
that Dr. Pellegrino's report constitutes some evidence supporting the Commission's
decision is based upon an incorrect application of law and is in conflict with controlling
No. 20AP-137                                                                                 5

Ohio precedent." Mr. Block's argument is mainly a criticism of Dr. Pellegrino's report and
the magistrate's discussion of how it could constitute some evidence for the SHO's ruling.
(Objs. at 9-11.) However, "the commission is the exclusive evaluator of weight and
credibility and that as long as some evidence supports the commission's decision, we will
defer to its judgment." State ex rel. Athey v. Indus. Comm., 

 (2000).
       {¶ 12} Mr. Block also asserts that Dr. Pellegrino's report "is so internally
inconsistent with his findings that it cannot constitute some evidence to support the
Commission's decision." (Objs. at 12.) He argues that Dr. Pellegrino's observation that his
"right hand is capable of full range of motion" is inconsistent with the report's finding that
his "wrist fusion results in difficulty achieving certain functional positions to enable use of
the right hand." 

 But this summation of Dr. Pellegrino's report obscures his actual
conclusion: "There is some subjective decreased sensation in the right hand in the ulnar
distribution, but the right hand neurological function including sensation, strength,
remains functionally intact to allow full range of motion without increased pain, grasping
and pincher grasp and fine motor movement. These findings allow functional use of the
right hand to perform tasks such as buttoning, holding silverware, hold[ing] and drinking
from a cup, and writing." (Stip. at 51.) Furthermore, Dr. Pellegrino stated that Mr. Block's
"wrist fusion results in difficulty achieving certain functional positions to enable use of his
right hand but this is not to the extent where it renders his right hand useless for all
practical purposes." (Emphasis added.) Id. at 52. The foregoing italicized language,
omitted by Mr. Block in his objection, undermines his assertion of internal inconsistency
in the report. See State ex rel. Wyrick v. Indus. Comm. of Ohio, 

, 2014-
Ohio-541, ¶ 14 (holding that report asserting claimant had " 'significant remaining function
of his left upper extremity,' while finding at the same time that he was able to use his hand,
wrist, and forearm only if the elbow remains at waist level" was internally inconsistent and
could not constitute some evidence for denial of loss of use award). The third objection is
overruled.
       {¶ 13} Following our independent review, pursuant to Civ.R. 53, we find that the
magistrate has properly determined the pertinent facts and applied the salient law to them.
Accordingly, the objections to the magistrate's decision are overruled and we adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law
No. 20AP-137                                                                            6

contained therein. In accordance with the magistrate's decision, we deny the request for a
writ of mandamus.
                                                       Objections overruled; writ denied.


                           KLATT and DORRIAN, JJ., concur.
                               _________________
No. 20AP-137                                                                               7

                                        APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State ex rel. Michael E. Block,               :

              Relator,                        :

v.                                            :                    No. 20AP-137

Industrial Commission of Ohio et al.,         :               (REGULAR CALENDAR)

              Respondents.                    :



                         MAGISTRATE'S DECISION

                                  Rendered on June 25, 2021



              Denio A. Leone LLC, and Denio A. Leone, for relator.

              Dave Yost, Attorney General, and Kevin J. Reis, for
              respondent Industrial Commission of Ohio.


                                      IN MANDAMUS

       {¶ 14} Relator, Michael E. Block ("claimant"), has filed this original action
requesting this court issue a writ of mandamus ordering respondent, Industrial
Commission of Ohio ("commission"), to vacate its order that denied claimant's request for
payment of a scheduled loss award for total loss of use of the right hand pursuant to R.C.
4123.57(B), and to enter an order granting such compensation.
Findings of Fact:
       {¶ 15} 1. On December 12, 2012, claimant sustained an industrial injury when he fell
30-35 feet off of the roof of a residence onto a concrete walkway while installing a new roof
in the course of his employment with respondent Brunswick Home Improvement, LLC, and
his workers' compensation claim has been allowed for the following conditions: open
No. 20AP-137                                                                                   8

fracture left distal radius; closed fracture right distal radius; closed fracture left
intertrochanteric; closed fracture left pubis; closed fracture left sacrum/coccyx; closed
fracture left subtrochanteric; closed fracture right distal radius; nonunion right wrist due
to progressive collapse of distal radius; myofascitis left hip; myofascitis right wrist; and loss
of use of the right hand.
       {¶ 16} 2. Claimant underwent many surgeries following his accident, including
surgeries on both wrists and left hip.
       {¶ 17} 3. Starting on January 30, 2014, claimant began receiving treatment from
Todd Hochman, M.D. At the time, Dr. Hochman noted that, with regard to the right wrist,
claimant has some ulnar deviation at the wrist.
       {¶ 18} 4. Claimant saw Dr. Hochman on August 28, 2014, and in his report,
Dr. Hochman noted that claimant has significant abnormality throughout the right wrist,
and his right wrist range of motion is limited.
       {¶ 19} 5. Claimant saw Dr. Hochman on October 27, 2014, and in his report,
Dr. Hochman found that claimant has ulnar deviation at the right wrist joint; hypertrophy
of the bones about the wrist; atrophy throughout the hands; extremely limited range of
motion; and significant disability.
       {¶ 20} 6. Claimant saw Dr. Hochman on January 5, 2015, and in his report,
Dr. Hochman found that Harry Hoyen, M.D., believed there was a nonunion of the right
wrist and recommended arthrodesis; and the right wrist has yet to heal.
       {¶ 21} 7. Claimant saw Dr. Hochman on February 6, 2015, and in his report,
Dr. Hochman found that claimant's right wrist was shaking; claimant reports his wrist
being in a lot of pain; and there is a persistent nonunion of the right wrist.
       {¶ 22} 8. Claimant saw Dr. Hochman on March 6, 2015, and in his report,
Dr. Hochman found that claimant has pain throughout the right upper extremity; he has
true pathology and pain; and his claim was recognized for nonunion collapse of the distal
radius, right wrist.
       {¶ 23} 9. On May 7, 2015, claimant saw Dr. Hochman, who indicated in his report
that claimant's wrist has swelling, and he has difficulty with range of motion throughout
the wrist.
No. 20AP-137                                                                               9

          {¶ 24} 10. On September 4, 2015, Dr. Hoyen issued a report, in which he found the
following: claimant's right wrist was stable in the splint; his wrist and finger motion is
significantly limited; and arthrodesis of the wrist is indicated.
          {¶ 25} 11. On September 14, 2015, claimant saw Dr. Hochman, and in his report he
found that claimant continues to have pain in his right wrist; he has extremely limited range
of motion throughout the right wrist; he has crepitus; he has ulnar deviation; and he has
decreased hand grip. Dr. Hochman's report from October 19, 2015, indicated much the
same.
          {¶ 26} 12. Claimant saw Dr. Hoyen in October and November 2015, and in his
reports, he noted very little motion of the wrist, periosteal callus formation, and nonunion
of the wrist. They discussed surgery and wrist arthrodesis.
          {¶ 27} 13. Claimant underwent a right wrist arthrodesis on December 4, 2015.
          {¶ 28} 14. On March 10, 2016, claimant saw Dr. Hochman, who found claimant is
still experiencing problems with the right wrist; he is starting occupational therapy; he has
limited range of motion throughout the thumbs and fingers; and he is neurovascularly
intact.
          {¶ 29} 15. On June 1, 2016, claimant saw Dr. Hochman, who found claimant's right
wrist has some abnormality but not as much angulation; there is no range of motion
throughout the wrist; he has range of motion throughout the fingers and thumb; he has
some difficulty with opposition; he is neurovascularly intact; and he has significant
impairment of the right upper extremity.
          {¶ 30} 16. On June 2, 2016, claimant saw Dr. Hoyen, who found he has no right wrist
range of motion due to fusion; his finger range of motion is reasonable and functional; and
he has some atrophy of the arm.
          {¶ 31} 17. On September 14, 2016, claimant saw Dr. Hochman, who found claimant
is still having problems throughout the right wrist; has extreme limitations throughout the
right upper extremity; has obvious atrophy throughout the wrist and hand; and has
weakness in his hand.
          {¶ 32} 18. On December 1, 2016, claimant saw Dr. Hoyen, who issued a report, in
which he found the following: claimant's right wrist demonstrates very little motion and
No. 20AP-137                                                                                10

tenderness of the distal plate; and arthrodesis is nearly complete although there is still some
delayed union.
          {¶ 33} 19. On January 5, 2017, claimant saw Dr. Hoyen, who issued a report, in
which he found the following: the plate is lifted off the bone; there is tenderness over the
distal plate; there is pain over the distal ulnar as well as over the plate; and the plate has
had screw failure distally.
          {¶ 34} 20. On April 14, 2017, Dr. Hoyen issued a post-surgery report, in which he
found the following: he removed claimant's hardware; claimant's wrist was well fused with
no motion; and claimant received a right brachial plexus peripheral nerve block at the
axillary site.
          {¶ 35} 21. On June 22, July 13, August 1, August 31, and October 17, 2017, Antony M.
George, M.D., issued reports, in which he found claimant has painful right arm spasms to
his wrist, tenderness, loss of range of motion, and arm and grip weakness.
          {¶ 36} 22. On July 27, 2017, claimant saw Dr. Hoyen, who issued a report, in which
he found the following: there is pain over the ulnar aspect; he has independent finger
extension; there is tenderness; he has good supination to 60 degrees and pronation to 40
degrees; and he still has limitations.
          {¶ 37} 23. On November 9, 2017, and January 18, 2018, Dr. Hoyen issued reports,
in which he found the following: claimant has very minimal wrist range of motion; he has
tenderness over the dorsal ulnar sensory nerve; the midcarpal joint may be partially open;
and he has stable wrist arthrodesis with degeneration ulnar carpal and distal radioulnar
joints.
          {¶ 38} 24. On December 3, 2018, Maria Armstrong Murphy, M.D., performed an
independent medical examination ("IME"), and on December 10, 2018, she issued an IME
report, in which she found the following: there is trace movement of extension, flexion, and
ulnar and radial deviation; there are fair distal pulses with mild stigmata suggestive of
peripheral vascular disease; atrophy is noted in the right forearm; weakness in the right
wrist extensors and flexors secondary to the fusion; claimant has weak grip on the right;
sensation is decreased in the ulnar distribution; claimant is not at maximum medical
improvement ("MMI") in the right upper extremity; and claimant should repeat trigger-
point injections and therapy prior to being deemed MMI.
No. 20AP-137                                                                                 11

       {¶ 39} 25. On April 16, 2019, Dr. George issued a report, in which he found the
following: due to non-union bone healing, claimant needs another surgery, and after
several attempts at trigger-point injections, he still has significant loss of function; his
functional grip strength with the right hand has continued to be below the National
Institute for Occupational Safety and Health ("NIOSH") and the Occupational and Safety
Health Administration ("OSHA") requirements for employment; his grip testing is only 11
pounds on the right and 26 pounds on the left, which is below that needed for a construction
or roofing job; his loss of motion from the ankylosis of the wrist minimizes more repetitive-
use-type employment; he has recurring spasms and recurring pain with activities of daily
living; Dr. George hopes that the current treatment will at least minimize the necessity for
pain medications and simple activities of daily living; without any plans for further surgical
intervention by Dr. Hoyen or any great change in his function, there should be considered
a total loss of use of his right hand for gainful employment; and Dr. George believes that
treatment is still necessary for palliative reasons and to improve his level of function for
activities of daily living and self-care in the hopes to minimize or eliminate the need for
narcotic pain medication.
       {¶ 40} 26. On May 9, 2019, claimant filed a C-86 motion, requesting compensation
for the total loss of use of the right hand, relying on the reports of Drs. George, Hoyen, and
Armstrong Murphy.
       {¶ 41} 27. Mark Pellegrino, M.D., issued an IME report based upon a June 21, 2019,
examination, in which he found the following: claimant has had fusion of his right wrist
that interferes with his function; he reports difficulty using his right hand; he can hold food
utensils in his right hand and use them but prefers to use his left hand for these activities;
he has sensation in his right hand, and he can move all of his fingers; his right wrist is fused
with no range of motion; there is a right palmar flexion deformity; he is unable to flatten
his right palm on a level surface; light palpation attempts result in complaints of pain in the
right dorsal wrist area and to a lesser degree the right volar wrist area with exaggerated
withdrawal response noted; there is no other pain with palpation in the rest of the right arm
including the fingers; right shoulder and elbow range of motion is normal; individual
fingers and right thumb passive range of motion is within normal limits; no swelling is
noted in the right palm and fingers, and no joint effusion, redness, or heat is present; no
No. 20AP-137                                                                                12

significant skin discoloration is noted; deep tendon reflexes are 2+ and symmetric;
claimant reports no pinprick sensation throughout the dorsal hand and palm involving
digits 4 and 5; no light-touch or pinprick abnormalities are noted in the right radial side of
the hand including all of digits 1, 2, and 3; muscle-strength testing is essentially 5/5 in the
right-hand muscles; there is some weakness noted in the wrist extensor muscles; and he
can move thumb to index, middle, ring, and little fingers in a fine-motor pincher grasp. Dr.
Pellegrino opined that the allowed injury has not resulted in a total permanent loss of use
of the right hand; claimant's primary functional limitation pertaining to the right arm is
caused by fusion of the right wrist; the right-hand neurological function remains
functionally intact to allow full range of motion without increased pain, grasping and
pincher grasp, and fine motor movement; he has functional use of the right hand to perform
tasks such as buttoning, holding silverware, holding and drinking from a cup, and writing;
he completed forms using the right hand holding a pen in a fine pincher grasp and using
coordinated actions to form neat and legible printing; his wrist fusion results in difficulty
achieving certain functional positions to enable use of his right hand, but this is not to the
extent that it renders his right hand useless for all practical purposes; and his right hand is
capable of performing most of the function that it commonly performs despite the allowed
conditions in the claim and the limitations imposed by the allowed conditions.
       {¶ 42} 28. On August 12, 2019, in response to Dr. Pellegrino's report, Dr. George
submitted a rebuttal report, in which he indicated the following: claimant has less than 50%
right-hand grip strength, not 5/5, as Dr. Pellegrino found; Southwest General Hospital
found further treatments would not improve his right-hand grip strength, which was only
8 pounds of pressure, as opposed to 49 pounds of pressure for his left hand; claimant can
only hold a cup or coffee mug for less than 1 or 2 minutes; claimant stated he is not able to
use tools in his right hand with any skill or dexterity; Dr. Pellegrino's statement that
claimant has strength and functionality intact, full range of motion without increase pain
with grasping or pinch grasp, the ability to perform fine motor movement like buttoning,
holding silverware, holding and drinking from a cup, and writing, contradicts everything in
the history and physical exam; the more reliable understanding of claimant's level of
functioning is that he has become a left-handed driver and a left-handed person for daily
activities; for all practical purposes and for all intents and purposes he has very limited use
No. 20AP-137                                                                                  13

of the right hand for most activities of daily living and certainly limiting for any
employment; and there is no job that claimant would be qualified to be recruited for under
vocational rehabilitation.
       {¶ 43} 29. On August 20, 2019, a district hearing officer ("DHO") mailed an order,
in which the DHO granted claimant's motion and found the following: claimant has for all
intents and purposes suffered a total practical loss of use of his right hand due to the injuries
and surgeries in this claim; claimant is granted an award of 175 weeks of compensation for
loss of use of the right hand; and the order is based on the August 12, 2019, report of Dr.
George, and indication by claimant that he has to perform all of his daily activities by using
his left hand because he has lost any practical use of his right hand due to the injuries and
surgeries in this claim. The commission appealed.
       {¶ 44} 30. On October 2, 2019, a hearing was held before a staff hearing officer
("SHO"), at which claimant testified. On October 5, 2019, the SHO mailed an order, in
which the SHO found the following: (1) the August 20, 2019, order of the DHO is vacated;
(2) the request for payment of a scheduled loss award for total loss of use of the right hand
is denied; (3) the claimant has not presented proof that the functional limitations in the use
of his right hand are permanent; (4) the June 21, 2019, report of Dr. Pellegrino documents
that claimant retains some function of the hand and has not lost function in the hand for
all practical purposes; and (5) all proof on file was reviewed and considered. Claimant
appealed.
       {¶ 45} 31. On October 24, 2019, the commission refused claimant's appeal. Claimant
filed a request for reconsideration.
       {¶ 46} 32. On November 21, 2019, the commission denied claimant's request for
reconsideration.
       {¶ 47} 33. On March 4, 2020, claimant filed in this court a complaint in mandamus,
requesting this court vacate the commission's order that denied his request for payment of
a scheduled loss award for total loss of use of his right hand pursuant to R.C. 4123.57(B),
and to enter an order granting such compensation.
No. 20AP-137                                                                                 14

Conclusions of Law and Discussion:
       {¶ 48} The magistrate recommends that this court deny claimant's request for a writ
of mandamus.
       {¶ 49} 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 law.
State ex rel. Pressley v. Indus. Comm., 

 (1967).
       {¶ 50} 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., 

 (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., 

 (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., 

 (1981).
       {¶ 51} R.C. 4123.57(B) authorizes scheduled compensation to a claimant for the
total loss of a body part, such as the total loss of an arm or leg. For the "loss of a leg," the
statute provides for an award of 200 weeks of compensation. "Loss" within the meaning of
the statute includes not only amputation, but also the loss of use of the affected body part.
State ex rel. Wyrick v. Indus. Comm., 

, 

, citing State
ex rel. Moorehead v. Indus. Comm., 

, 

.
       {¶ 52} To qualify for compensation under R.C. 4123.57(B), the loss of use need not
be absolute if the claimant has "suffered the permanent loss of use of the injured bodily
member for all practical intents and purposes." 

 citing State ex rel. Alcoa Bldg. Prods.
v. Indus. Comm., 

, 

, ¶ 12. However, a claimant may
qualify for a total loss of use award under R.C. 4123.57(B) even if the body part retains some
residual function. State ex rel. Varney v. Indus. Comm., 

, 2014-Ohio-
5510, ¶ 16, citing Alcoa. "[T]he pivotal question is how much function remains." State ex
rel. Kroger Co. v. Johnson, 

, 

. In Alcoa, the Supreme
Court of Ohio noted that evidence indicated the claimant continued to use what remained
of his impaired limb for some minor functions: pushing open a car door, and tucking
No. 20AP-137                                                                              15

paperwork between the upper arm and chest; however, these minor residual functions did
not preclude a scheduled award. Id. at ¶ 6.
        {¶ 53} An injured worker claiming loss of use under R.C. 4123.57(B) bears the
burden of showing that the loss of use is complete and permanent. State ex rel. Carter v.
Indus. Comm., 10th Dist. No. 09AP-30, 

. Medical evidence of disability or
loss may be impeached by evidence of actual work or other physical activity inconsistent
with that assessment. State ex. rel. Schultz v. Indus. Comm., 

, 2002-Ohio-
3316.
        {¶ 54} In the present case, claimant argues that two of the factors on which the
commission relied to deny his motion for loss of use are incorrect, contrary to the facts and
law, and are indicative of an abuse of discretion. Specifically, claimant contends the
following: (1) that the commission's conclusion that claimant did not present proof of
permanent functional limitations in the use of his right hand is contrary to the evidence
submitted in this claim; and (2) the commission's reliance on the medical report of
Dr. Pellegrino is an abuse of discretion, as that report is internally inconsistent and/or
equivocal and does not constitute some evidence that would support the commission's
decision.
        {¶ 55} With regard to the first argument — that the commission's conclusion that
claimant did not present proof of permanent functional limitations in the use of his right
hand is contrary to the evidence — the record contains some evidence to support the
commission's finding. Claimant argues that the SHO's conclusion was apparently based on
the two arguments presented by the Bureau of Workers' Compensation ("BWC") at the SHO
hearing: (1) Dr. George did not dictate the loss of use was permanent in his reports because
he did not used the word "permanent"; and (2) Dr. George submitted MEDCO-14
Physician's Report of Work Ability forms that indicated relator has not yet reached MMI;
thus, there was still room for improvement and the loss of use could not yet be determined
to be permanent.
        {¶ 56} However, nowhere does the SHO's order indicate that these were the bases
for the commission's decision. The SHO could have relied upon either or neither of the
reasons argued by the BWC at the hearing to arrive at her conclusion. Given the SHO did
No. 20AP-137                                                                                16

not specifically address either of these grounds, the magistrate declines to speculate and
address in an advisory manner the legal issues presented with respect to these grounds.
       {¶ 57} Instead, addressing the commission's finding as stated, the commission
could have reached its conclusion based on some evidence in the record. Claimant relies
heavily on Dr. George's rebuttal report to support permanency, pointing to Dr. George's
findings that there was total ankylosis of the right wrist due to fusion and the loss of
sensation in two fingers extending all the way up throughout the hand to the wrist.
However, these findings do not mandate a conclusion that claimant suffered a total loss of
use of the right hand. Ankylosis of the wrist and loss of sensation in two fingers do not
inevitably equate to total loss of use of the right hand. Claimant's allowed conditions and
ankylosis are in his wrist, not his hand, and a loss of use of two or more fingers by
amputation or ankylosis is required to constitute a loss of the use of the hand per R.C.
4123.57(B). Even if Dr. George opined claimant had a loss of sensation in two fingers,
claimant has not shown the loss of use of two or more fingers. Dr. George's rebuttal report
also is lacking in several respects to support a total and permanent loss of use of the hand.
He opines there was a "significant" loss of function; a loss of grip strength below NIOSH
and OSHA requirements for employment and that needed for a construction or roofing job;
the wrist ankylosis "minimizes" more repetitive-use-type employment; and treatment is
still necessary to improve claimant's level of function for activities of daily living and
selfcare. These opinions do not necessarily demand a finding of a permanent total loss.
While Dr. George clearly noted some loss of functionality, reading these opinions as a
whole, the commission could have found that Dr. George's rebuttal report was insufficient
to support a finding that there was a total loss of use and that any loss of use was permanent.
The underlying findings stopped short of concluding there was a permanent, total loss of
use for all practical purposes.
       {¶ 58} Dr. Pellegrino's June 21, 2019, report provided some evidence to support the
commission's finding that claimant retains some function of the right hand and has not lost
function in the hand for all practical purposes. Dr. Pellegrino opined that the allowed injury
did not result in a total permanent loss of use of the right hand. Although Dr. Pellegrino
explained that claimant's primary functional limitation of the right arm was due to the
fusion of his right wrist, and claimant suffered some subjective decreased sensation in the
No. 20AP-137                                                                                 17

right hand, he indicated that the right hand neurological function remained functionally
intact to allow full range of motion without increased pain, and grasping, pincher grasp,
and fine-motor movement. Dr. Pellegrino offered several examples of the functional uses
of claimant's right hand, including buttoning, holding utensils, holding and drinking from
a cup, and writing. He also noted that claimant completed writing tasks with his right hand
during his appointment using clear handwriting. Dr. Pellegrino admitted that claimant's
wrist fusion resulted in difficulty achieving certain functional positions to enable the use of
his right hand, but it did not render his right hand useless for all practical purposes, and, in
fact, claimant's right hand could perform most of the functions it commonly performs. Dr.
Pellegrino's report clearly provides some evidence to support the commission's decision.
       {¶ 59} Claimant's argument that the commission's reliance on Dr. Pellegrino's
report was in error because it is internally inconsistent and/or equivocal is without merit.
Claimant contends that Dr. Pellegrino's ultimate opinion that there was not a permanent,
total loss of use of the right hand is contradicted by his findings and description of the lack
of functioning of the right hand. To demonstrate this contradiction, claimant points out
that Dr. Pellegrino also found: (1) claimant has undergone multiple surgeries; (2) claimant
had a fused right wrist with no range of motion, which interferes with his functioning; (3)
there is no sensation through the dorsal hand and palm involving digits 4 and 5; (4) he has
well-healed scars in the forearm and wrist areas; (5) the right forearm is 2 inches shorter
than the left; and (6) the wrist fusion results in difficulty achieving certain functional
positions to enable use of the right hand. Given these findings, claimant asserts, it was
contradictory for Dr. Pellegrino to then ultimately conclude his right hand was capable of
performing most of the functions that it commonly performs.
       {¶ 60} However, Dr. Pellegrino's findings are not irreconcilable with his ultimate
conclusion that there was no total loss of use. These observations, neither separately nor in
combination, necessarily render claimant's right hand useless for all practical purposes.
That claimant has undergone multiple surgeries, has well-healed scars, and has a right
forearm two inches shorter than the left do not speak to loss of use or his level of
functionality. Also, Dr. Pellegrino's findings that claimant has no range of motion in his
wrist and difficulty achieving certain functional positions due to the wrist fusion do not
necessarily foreclose use of the hand for all practical purposes. Dr. Pellegrino explained how
No. 20AP-137                                                                              18

claimant was still able to use his right hand and gave examples of his significant level of
functionality. Finally, as addressed above, that claimant had no sensation involving two
digits does not constitute a loss of use of the hand, pursuant to R.C. 4123.57(B), which
requires a loss of use of two or more fingers by amputation or ankylosis to constitute a loss
of the use of the hand. To be sure, the injuries and limitations acknowledged by
Dr. Pellegrino and documented in other parts of the record are not insignificant; however,
Dr. Pellegrino's ultimate conclusion was supported by his many findings, as summarized
above, that show claimant retained substantial use and functionality of his right hand so as
to preclude his claim for permanent total loss of use. Although claimant protests
Dr. Pellegrino's ultimate conclusion is incredulous given his underlying findings,
determinations of credibility and weight rest exclusively within the commission's domain.
See State ex rel. 

       {¶ 61} Accordingly, it is the magistrate's decision that this court should deny
claimant'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).