uia 3ju the '*upreme Court of Yjio CLE0 O^ COURT ^^PRBA,^ ^^^^^ OF OHIO Case No STATE OF OHIO, ex rel. CHARLES WYRICK, Appellant,

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1 ^. -^ - 3ju the '*upreme Court of Yjio STATE OF OHIO, ex rel. CHARLES WYRICK, vs. Appellant, Case No On appeal from the Court of Appeals for Franklin County, Ohio, Tenth Appellate District, Case No. I lap-653 INDUSTRIAL COMMISSION OF OHIO, et al., Appellees. MERIT BRIEF OF APPELLEE, INDUSTRIAL COMMISSION OF OHIO JOSEPH A. BUTKOVICH ( ) DANA R. LAMBERT ( ) Butkovich & Crosthwaite Co., LPA 125 East Court Street, Suite 800 Cincinnati, Ohio (513) (513) Fax joeb@butkovichlaw.com dlambert@butkovichlaw.com Counsel for Appellant, Charles Wyrick MICHAEL DEWINE ( ) Ohio Attorney General PATSY A. THOMAS ( ) Assistant Attorney General 150 East Gay Street, 22"d Floor Columbus, Ohio (614) (614) Fax Patsy.Thomas@OhioAttomeyGeneral.gov Counsel for Appellee, Industrial Commission of Ohio uia 'M ^^^^ ^ ^ CLE0 O^ COURT ^^PRBA,^ ^^^^^ OF OHIO

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION STATEMENT OF THE FACTS...1 LAW AND ARGUMENT PROPOSITION OF LAW...6 The Industrial Commission did not abuse its discretion in denying loss of use award where the commission relied on a medical report that the claimant had significant remaining functional use of his left upper extremity....6 CONCLUSION CERTIFICATE OF SERVICE...11 i

3 TABLE OF AUTHORITIES Cases State ex rel. Alcoa Bldg. Products v. Indus. Comm. 102 Ohio St.3d 341, 2004-Ohio , 8, 9 State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster (1986) Ohio St.3d State ex rel. Elliott v. Indus. Comm. (1986) Ohio St.3d 76 6 State ex rel. Gassmann v. Indus. Comm. (1975) Ohio St.2d 64 7 State ex rel. Hayes v. Indus. Comm. 78 Ohio St.3d 572, 1997-Ohio :... 6 State ex rel. Kish v. Kroger Co. 10th. Dist. No. 10AP-882, 2011-Ohio State ex rel. Lovell v. Indus. Comm. 74 Ohio St.3d 250, 1996-Ohio State ex rel. Moss v. Indus. Comm. 75 Ohio St.3d 414, 1996-Ohio State ex rel. Pass v. C. S. T. Extraction Co. 74 Ohio St.3d 373, 1996-Ohio State ex rel. Richardson v. Indus. Comm. 10"' Dist. No. 04AP-724, 2005-Ohio State ex rel. Riter v. Indus. Comm. (2001) Ohio St.3d 89 1 State ex rel. Rouch v. Eagle Tool and Machine Company (1986) Ohio St.3d State ex rel. Sears Roebuck & Co. v. Campos 10th Dist. No , 2005-Ohio State ex rel. Teece v. Indus. Comm. (1981) Ohio St.2d

4 State ex rel. Walker v. Indus. Comm. 58 Ohio St.2d 402 (1979) ,7 State ex rel. Wheeling-Pittsburgh Steel Corp. v. Indus. Comm. 10th Dist. No. 06AP-43, 2007-Ohio State ex rel. Yancey v. Firestone Tire & Rubber Co. 77 Ohio St.3d 367, 1997-Ohio Other Authorities )... R.C (B 1, 7,10 iii

5 INTRODUCTION The question before the Court is whether the Industrial Commission of Ohio ("commission") abused its discretion in finding that the injured worker was not entitled to a loss of use award for his left upper extremity. Under R.C (B), a permanent and total loss of use of an enumerated body part warrants a scheduled loss of use award. State ex rel. Riter v. Indus. Comm., 91 Ohio St.3d 89 (2001). However, such award is appropriate only if the loss of use of the body part is "to the same effect and extent as if [it] had been amputated or otherwise physically removed." State ex rel. Walker v. Indus. Comm., 58 Ohio St.2d 402 (1979). Here, the medical evidence supports the commission's denial order. The commission's decision is based on evidence in the administrative record. The lower court correctly held that the commission did not abuse its discretion in relying on such evidence and denied the requested extraordinary writ of mandamus. STATEMENT OF THE FACTS Charles Wyrick ("Wyrick") worked as a carpenter for Commercial Drywall Systems, Inc. ("Commercial Drywall"). On March 8, 2006, Wyrick was working on a scaffold in a stairway when he slipped off and fell into a window. (Supplement, page 47, hereinafter "S. #"). Commercial Drywall certified the workers' compensation claim. (S. 47). Wyrick's claim has been allowed for "closed dislocation, left shoulder, superficial injury left hand, cellulitis left fourth finger, cellulitis and abscess left, tear left rotator cuff, disc herniation at C5-6." (S. 9). A magnetic resonance imaging ("MRI"), performed on March 24, 2006, revealed "extensive metallic artifact from prior surgery" and "a thin rotator cuff with no definite intact fibers seen along the anterior leading edge of the supraspinatus tendon." (S. 49). Another MRI 1

6 performed on October 4, 2007, revealed "complete tears of the supraspinatus and infraspinatus tendons ***." (S. 15). On or about November 28, 2007, Peter Cha, M.D., performed an arthroscopy and unsuccessfully attempted to repair Wyrick's rotator cuff. (S ). Wyrick continued to follow-up with Dr. Cha. In his August 15, 2008, office notes, Dr. Cha noted "[1]eft shoulder rotator cuff recurrent rupture with a chronic-type tear" and recommended conservative treatment. (S.36). Wyrick filed an Application for Determination of Percentage of Permanent Disability ("C-92") with the Ohio Bureau of Workers' Compensation ("BWC") on or about October 22, (S. 38). At BWC's request, V.P. Mannava, M.D., performed a medical impairment examination of Wyrick on December 2, Dr. Mannava opined that Wyrick had 19% impairment for the left shoulder and 5% for the neck, combining to 23% whole person impairment. (S. 44). On December 23, 2008, based on Dr. Mannava's report, BWC issued a tentative order granting Wyrick a 23% permanent partial disability award. (S. 32). On or about January 13, 2009, Wyrick appealed BWC's tentative order to the commission. Id. On February 2, 2009, at Wyrick's counsel's request, Bruce Siegel, D.O., performed a medical impairment examination of Wyrick. (S. 19). Dr. Siegel opined that Wyrick had 23% impairment for torn left rotator cuff with 12% impairment for his dislocated left shoulder, combining for 32% impairment of the left upper extremity. (S. 21). He also opined that Wyrick had 19% whole person impairment for his left shoulder. Id. On February 12, 2009, at Commercial Drywall's request, David C. Randolph, M.D., M.P.H., performed a medical impairment examination of Wyrick. (S. 22). Dr. Randolph noted that Wyrick had significant rotator cuff problems before the accident that gave rise to his 2

7 workers' compensation claim. ( S. 29). Taking those past problems into account, Dr. Randolph opined that Wyrick had 8% whole person impairment for his left shoulder with 5% impairment for his neck and disc herniation, combining to 13% whole person impairment. (S. 30). In an order mailed March 10, 2009, a district hearing officer ("DHO") for the commission affirmed the BWC's tentative order granting Wyrick a 23% permanent partial disability award. The commission's order was based on the reports from Drs. Siegel, Randolph and Mannava. S. 32). On Commercial Drywall's further appeal, a staff hearing officer ( "SHO") for the commission, in findings mailed on May 12, 2009, affirmed the DHO's order. ( (S. 34). On August 20, 2009, George Griffin, M.D., Wyrick's treating physician, performed arthroscopic surgery on Wyrick. (S. 17). The surgical report stated that "no rotator cuff was encountered" and "[n]o attempt was made to try and pull [the rotator cuff] back together because it would have provided the patient no benefit." Id. On or about February 5, 2010, Wyrick filed a motion ("C-86") requesting an award for loss of use of his left upper extremity. (S. 1). His motion was supported by a January 19, 2010 report of Dr. Griffin. (S. 2). Dr. Griffin stated, in pertinent part: Id. At the time of surgery, it was demonstrated that Mr. Wyrick essentially had no rotator cuff present. He has suffered a massive rotator cuff tear with complete retraction of the muscles and no ability exists to repair this. As a result of this, Mr. Wyrick has essentially lost the functional use of his left upper extremity. The patient is right handed. He is able to use his left hand only if he props or braces his left lower arm below the level of the elbow. Essentially for all practical purposes, Mr. Wyrick's left upper extremity is non-functional. It is my opinion, to a reasonable degree of medical certainty that Mr. Wyrick's left upper extremity is only slightly better than if it had been completely amputated surgically. 3

8 On March 25, 2010, at the commission's request, D. Ann Middaugh, M.D., M.S., performed a loss of use examination on Wyrick. (S. 3). In her comprehensive post-examination report, Dr. Middaugh set forth Wyrick's medical and surgical history, work history, medical impairment findings, and physical examination findings. (S. 3-6). Dr. Middaugh concluded: Discussion: Charles Wyrick is a 52 year old man who sustained a rotator cuff tear with anterior dislocation of the left shoulder when he fell from scaffolding on While the dislocation was successfully reduced he sustained a complete tear of the rotator cuff. He underwent surgery which was ultimately unsuccessful and Mr. Wyrick has a completely deficient rotator cuff involving the left shoulder. This results in severe limitation in range of motion and function. He has applied for loss of use of the left upper extremity. While there is clear loss of use of the entire rotator cuff relative to the left shoulder, Mr. Wyrick has significant remaining function of his left upper extremity including no limitation in use of the forearm, wrist and hand so long as the elbow is maintained at the waist level. This allows use of the left upper extremity in an assist manner as well as full use of the wrist and hand albeit limited in scope relative to upper arm and elbow positioning. Therefore the objective documentation and physical examination does not support total permanent loss of use of the left upper extremity to the degree that the involved body part is useless for all purposes. (S. 6). (Emphasis added.) A DHO held a hearing to consider Wyrick's motion for a loss of use award on April 28, (S. 7). The DHO denied the motion, finding that Wyrick "has not suffered the total loss of use of his upper left extremity based upon the report of Dr. Middaugh dated 03/25/2010. Specifically, Dr. Middaugh finds that [Wyrick] retains significant functioning in his left forearm, wrist, and hand." Id. On Wyrick's further appeal, a SHO held a hearing on June 22, 2010, and held, in pertinent part: [Wyrick] has not suffered a loss of use of his left upper extremity which would s pport an award pursuant to Ohio Revised Code

9 Specifically, the Hearing Officer finds that for all practical purposes, [Wyrick] has not lost the use of his left upper extremity to the same effect and extent as if it had been amputated or otherwise physically removed. In coming to this conclusion, the Hearing Officer relies on the report of Dr. Middaugh dated 03/26/2010. Dr. Middaugh indicated that [Wyrick] is able to use his left forearm and hand if he holds his arm next to his body with the elbow at waist level. [Dr. Middaugh] stated that [Wyrick] has no limitation in fingering, using his hand, wrist, or forearm so long as the elbow is at the waist level. [Dr. Middaugh] indicated that while [Wyrick] has a clear loss of use of the entire rotator cuff relative to the left shoulder, [Wyrick] has significant remaining function of his upper extremity including no limitation in the use of his forearm, wrist and hand so long as the elbow is maintained at the waist level. The Hearing Officer relies on the report of Dr. Middaugh dated 03/26/2010, as well as State ex rel Alcoa Bldg. Products v. Indus. Comm. (2004) 102 Ohio St.3d 341. (S. 9-10). (Emphasis added.) In an order mailed July 14, 2010, the commission refused Wyrick's further appeal. (S. 11). Wyrick filed an action in mandamus in the Court of Appeals, Tenth Appellate District, requesting the court to find the commission abused its discretion by denying his request for a loss of use award. On April 24, 2012, a magistrate for the court rendered a decision denying Wyrick's request for a writ of mandamus. Wyrick filed objections and on September 11, 2012, 2012, the lower court issued a decision adopting the magistrate's decision as its own and denying Wyrick's request for a writ of mandamus. It is from the lower court's decision that Wyrick has brought this action. 5

10 LAW AND ARGUMENT PROPOSITION OF LAW The Industrial Commission did not abuse its discretion in denying loss of use award where the commission relied on a medical report that the claimant had significant remaining functional use of his left upper extremity. To be entitled to a writ of mandamus, Wyrick must establish that he has a clear legal right to relief. State ex rel. Rouch v. Eagle Tool and Machine Company, 26 Ohio St.3d 197, 198 (1986). Wyrick must be able to show that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). An abuse of discretion is "[n]ot merely error in judgment, but perversity of will, passion, prejudice, particularity or moral delinquency *** [and] exists only when there is no evidence upon which the Commission could have based its decision." State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster, 22 Ohio St.3d 191, 193 (1986). The commission acts within its discretion as long as "some evidence" supports its decision. State ex rel. Yancey v. Firestone Tire & Rubber Co., 77 Ohio St.3d 367, 1997-Ohio-44; State ex rel. Pass Ohio St.3d 373, 376, 1996-Ohio-126. The determination of disputed v. C.S.T. Extraction Co., 74 State ex rel. Hayes v. Indus. factual issues is within the sound discretion of the commission. Comm., 78 Ohio St.3d 572, 1997-Ohio-180. This Court has refused to reevaluate and reweigh the evidence before the commission, holding that the commission is the "exclusive evaluator of disability." See, e.g., State ex rel. Moss v. Indus. Comm., 75 Ohio St.3d 414, 416, 1996-Ohio "[Q]uestions of credibility and the weight to be given evidence are clearly within the commission's discretionary powers of fact-finding." State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165, 167 (1981). 6

11 The legislature created R.C (B) to provide compensation to a claimant for the loss of a body part. Such compensation was originally limited to amputations, with the exceptions of hearing and sight. Subsequently, this Court expanded "loss" to include loss of use (or loss without severance). See State ex rel. Gassmann v. Indus. Comm., 41 Ohio St.2d 64 (1975), and Walker, 58 Ohio St.2d 402. To qualify for a loss of use award, Wyrick was required to present medical evidence demonstrating that, for all intents and purposes, he had lost the use of his left upper extremity. State ex rel. Alcoa Bldg. Products v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio This Court held the loss of use of his left upper extremity must be permanent and total for all practical purposes, as if amputated. Id., see, also, State ex rel. Richardson v. Indus. Comm., 10th Dist. No. 04AP-724, 2005-Ohio 2388, 7. In Alcoa, this Court focused on whether the claimant lost the use of the injured bodily part "for all practical purposes." Alcoa, 2004-Ohio-3166 at 10. A portion of claimant's left arm had been amputated below the elbow and the claimant could not wear a prosthesis because of continuing hypersensitivity at the amputation site. The claimant could use the remaining portion of his left arm to push open a car door or hold papers that he had tucked under his arm. Applying the "for all practical purposes" standard, this Court concluded that this sort of residual use would not preclude an award for loss of use. Id. at 15, 16. Here, unlike the claimant in Alcoa, Wyrick has more than a limited residual use of his upper left extremity. Wyrick has functional use of his forearm, wrist, and hand. In his January 19, 2010 report, Dr. Griffin, Wyrick's treating physician, opines Wyrick "is able to use his left hand only if he props or braces his left lower arm below the level of the elbow ***[and his] left upper extremity is only slightly better than if it had been completely amputated s-argically." (S. 7

12 2). However, Dr. Middaugh clearly set forth that Wyrick has "significant remaining function of his left upper extremity including no limitation in use of the forearm, wrist and hand ***" and can use his arm by positioning his elbow at waist level. (S. 6). Dr. Middaugh concluded that Wyrick's left upper extremity is not "useless for all purposes." Id. The lower court did not err in holding "Dr. Middaugh's failure to use the word `practical' does not constitute use of an incorrect legal standard or misapplication of Alcoa." (Decision, p. 3, 7). In support of its holding, the lower court cites State ex rel. Kish v. Kroger Co., 10th. Dist. No. 10AP-882, Ohio-5766, 13, which quotes State ex rel. Wheeling-Pittsburgh Steel Corp. v. Indus. Comm., 10th Dist. No. 06AP-43, 2007-Ohio-757. In Wheeling-Pittsburgh Steel, the commission granted claimant a scheduled loss of use award. The SHO held that "the allowed conditions resulted in 8 shoulder surgeries [which] eventually led to the functional total loss of use of the right arm." Wheeling-Pittsburgh Steel, 2007=Ohio-757, 20. Relator asserted the commission's use of the phrase "functional total loss" was not the legal standard, "for all practical purposes," required by Alcoa. The lower court held "[n]othing in Alcoa suggest that the talismanic use of the phrase `for all practical purposes' is required in determining a loss of use claim. * * * We cannot say the functional loss of use test applied in the commission's orders differs in any significant way from the `for all practical intents and purposes' language employed in Alcoa." Id. at 4. Here, as previously stated, Dr. Middaugh opined that Wyrick's left upper extremity is not "useless for all purposes." (S. 6). The phrase "for all purposes" is not a different legal standard than the one provided in Alcoa. Dr. Middaugh's opinion would not have changed had she used the precise words ` for all practical intents and purposes" or ` for all practical purposes." Dr. Middaugh's March 26, 2010 report consisted of a thorough review of Wyrick's medical records and past rnedical history. S. 3). After examining Wvrick, Dr. Middaugh concluded her report 8

13 by recognizing Wyrick had actually suffered a loss of use of his left shoulder but she proceeded to describe the portions of Wyrick's left upper extremity that remained functional. Dr. Middaugh identified significant residual capabilities upon which she could properly opine that Wyrick has not lost the use of his upper extremity under the Alcoa standard. When Dr. Middaugh's report is read as a whole, her opinion remains that Wyrick's "left upper extremity `has significant remaining function' such that Wyrick does not have loss of use to the same effect and extent as if there had been an amputation or other physical removal." (Decision, p. 3, 7). Dr. Middaugh's use of the phrase `for all purposes" does not render her opinion fatally flawed. The lower court did not err in finding that "Dr. Middaugh's report does constitute some evidence upon which the commission could rely. Alcoa at 10, [citations omitted]." Id. Further, it is the commission's role to apply the proper legal standard. "There is a presumption of regularity that attaches to commission proceedmgs." State ex rel. Sears Roebuck & Co. v. Campos, 10th Dist. No , 2005-Ohio-5700 at 47, citing State ex rel. Lovell v. Indus. Comm., 74 Ohio St.3d 250, 252, 1996-Ohio-321. Here, the commission's order provides: Specifically, the Hearing Officer finds that for all practical purposes, [Wyrick] has not lost the use of his left upper extremity to the same effect and extent as if it had been amputated or otherwise physically removed. The Hearing Officer relies on the report of Dr. Middaugh dated 03/26/2010, as well as State ex rel. Alcoa Bldg. Products v. Indus. Comm. (2004) 102 Ohio St.3d 341. (S. 9-10). (Emphasis added). The commission specifically stated its reliance on the established standard set forth in Alcoa, 2004-Ohio (S. 10). Therefore, the lower court was correct in determining that the commission applied the proper standard in determining that Wyrick had not suffered a loss of use of his left upper extremity. (Decision, p. 3). 9

14 CONCLUSION The lower court did not err in denying Wyrick's request for an extraordinary writ of mandamus. The commission relied on evidence in the record, and acted within its discretion to find that Wyrick failed to meet the minimum standard for a loss of use award under R.C (B). The commission respectfully requests this Court to affirm the lower court's decision and deny the requested writ of mandamus. Respectfully submitted, MICHAEL DEWINE ( ) Ohio Attorney General Aa) PATS A. THO AS ( ) Y Attorney General Workers' Compensation Section 150 East Gay Street, 22"d Floor Columbus, Ohio (614) (614) Fax Patsy.Thomas@OhioAttomeyGeneral.gov Counsel for Appellee, Industrial Commission of Ohio 10

15 2013 to CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing was served on this ^ day of March, Via U.S. Mail Joseph A. Butkovich Dana R. Lambert Butkovich & Crosthwaite Co., LPA 125 East Court Street, Suite 800 Cincinnati, Ohio Counsel for Appellant, Charles Wyrick PATS Y A/ffHO S ( Assistant Attorney General 11