L^9. ,*upreme Court of bio. C,LtM OF COURT SUPREiUi,E COURT OF 0H1O CASE NO STATE OF OHIO, ex rel. DENNIS E. VARNEY,

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1 4 ITC the,*upreme Court of bio STATE OF OHIO, ex rel. DENNIS E. VARNEY, vs. Relator-Appellee, INDUSTRIAL COMMISSION OF OHIO, CASE NO On Appeal from the Franklin County Court of Appeals, Tenth Appellate District, Case No. 11AP-585 Respondent-Appellant, and TOTAL IMAGE SPECIALISTS, LLC., Respondent. BRIEF OF APPELLANT, INDUSTRIAL COMMISSION OF OHIO CHELSEA J. FULTON* ( ) *Counsel of Record Philip J. Fulton Law Office 89 East Nationwide Blvd., Suite 300 Columbus, Ohio Fax chelsea(c^ fultonlaw. com Counsel for Appellee, Dennis E. Varney ^ ^^ ^ 2 L^9 MICHAEL DEWINE ( ) Ohio Attorney General KEVIN J. REIS* ( ) Assistant Attorney General *Counsel of Record Workers' Compensation Section 150 East Gay Street, 22 d Floor Columbus, Ohio Fax Kevin ReiscuOl7ioAttar-neyGeneral..gov Counsel for Appellant, Industrial Commission of Ohio C,LtM OF COURT SUPREiUi,E COURT OF 0H1O

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION STATEMENT OF THE FACTS AND STATEMENT OF THE CASE...2 ARGUMENT....6 Appellant Industrial Commission's Proposition of Law No. 1 : The physician's impairment rating is the measure for purposes of determining a permanent partial disability award fon the loss of use of a scheduled body part under R. C (B)....: Appellant Industrial Commission's Proposition of Law No. 2 : The total loss of use of a scheduled body part is not measured in the same manner as an amputated loss of a scheduled body part. R.C (B) Appellant Industrial Commission's Proposition of Law No. 3 : The rules of statutory construction do not permit an increase in a medical impairment of "two-thirds " to a "total " loss of use under R. C (B) CONCLUSION CERTIFICATE OF SERVICE... APPENDIX Notice of Appeal ,..App.l Judgment Entry and Decision of Court Appeals, Case No. 11AP App.4 R.C App.29 Diagram of Fingers App.3 5 1

3 TABLE OF AUTHORITIES Cases Carter v. Div. of Water, City of Youngstown 146 Ohio St. 203 (1946)... Constellation NewEnergy, Inc. v. P. U. C Ohio St.3d 530, 2004-Ohio Neal-Pettit v. Lahman 125 Ohio St.3d 327, 2010-Ohio Phillips v. Borg-Warner Corp. 32 Ohio St.2d 266 (1972) Ryan v. Connor 28 Ohio St.3d 406 (1986)... State ex rel. Bryant v. Indus. Comm. 74 Ohio St.3d 458 (1996)... State ex rel. Clark v. Great Lakes Constr. Co. 99 Ohio St.3d 320, 2003-Ohio State ex rel. Elliott v. Indus. Comm. 26 Ohio St.3d 76 (1986)... State ex rel. Gassmann v. Indus. Comm. 41 Ohio St.2d 64 (1975) ,16 State ex rel. Houston v. Mental Health Millcreek Children's Psych. Hosp Ohio State ex rel. Lewis v. Diamond Foundry Co. 29 Ohio St.3d 56 (1987) State ex rel. Pass v. C. S. T. Extraction Co. 74 Ohio St.3d 373 (1996)... State ex rel. Pontillo v. P.E.R.S. Bd. 98 Ohio St.3d 500, 2003-Ohio State ex rel. Pressley v. Indus. Comm. 11 Ohio St.2d 141 (1967) ii

4 State ex rel. Riter v. Indus. Comm. 01 Ohio St, 3d Ohio-290, , 10 State ex rel. Rodriguez v. Indus. Comm. Tenth District Case No. 08AP-910, 2009-Ohio State ex rel. Teece v. Indus. Comm. 68 Ohio St.2d 165 (1981)... State ex rel. Varney v. Indus. Comm. Tenth District Case No. 11AP-585, 2012-Ohio State ex rel. Walker v. Indus. Comm. 58 Ohio St.2d 402 (1979) , 10 11, , 16 State ex rel. Zamora v. Indus. Comm. 45 0hio St.3d 17 (1989)... State of Ohio v. S.R., 63 Ohio St.3d 590 (1992)... Szekely v. Young, 174 Ohio St. 213 (1963) Other Authorities R.C R.C R.C (A).... R.C (B) ,15 9,10,11,13,14,16, , 2, 8, 9, 10,11 iii

5 INTRODUCTION This is a workers' compensation case that concerns entitlement to an award for the loss of use of a finger. The statute provides a monetary award for both the "loss of' a finger (or portions thereof), and the "loss of use" of a finger. R.C (B). "Loss" means a loss by severance or amputation. "Loss of use" means the finger is not amputated but the injury has rendered the finger "useless," as if it were amputated. Id. For the amputated loss of a finger, the statutory award is based on the location of the amputation, that is, the physical loss of one or more of the three bones or phalanges of the finger. However, the statute does not provide any numerical measure (or a threshold) which would require the commission to make a total loss of use award for a finger. Furthermore, it is improper to equate the statutory measure for a total loss by amputation to a claimed total loss of use. Therefore, the primary measure for the total loss of use of a finger (or any body part) is the physician's impairment rating. R.C (A). The issue is whether the statute requires that the standard for determining a total, amputated loss of a finger, be applied to an alleged total loss of use of a finger. The court of appeals held that the Appellant, Industrial Commission of Ohio ("commission") applied the wrong standard. State ex rel. Varney v. Indus. Comm., Tenth District Case No. 11AP-585, Ohio-4904, 4. ("Decision, _.") The court held that the commission must determine whether "more than two-thirds of a finger is useless and not merely whether the finger is totally useless." (Emphasis added.) Id. Essentially, the court held that there must be a total loss of use award if the finger is "more than two-thirds useless." (Decision, 4). However, there is no such numerical provision in the statute for a total loss of use of a finger. The commission relied on the percentage of impairment as determined by the physician based on his medical or clinical findings. R.C (A) states that the hearing officer "shall 1

6 determine the percentage of the employee's permanent disability, except as is subject to division (B) of this section, * * * and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable." The physician found that there was not a total loss of use. Therefore, the commission made an award for a partial loss of use, commensurate with the medical evidence (impairment rating) and the functional capacity. It is only the amputated "loss of more than the middle and distal phalanges" of the finger that is accorded a total loss award. R.C (B). Stated another way, the statute does not require a total or 100% loss of use award where the loss of use or impairment is "two-thirds." Rather, the statute requires an award consistent with the medical evidence, that is, the physician's impairment rating, and any other relevant evidence such as functional capacity. The court of appeals erred in its interpretation of the statute and the commission did not abuse its discretion or act contrary to law. This Court should reverse the court of appeals and deny the requested writ of mandamus. STATEMENT OF THE FACTS AND STATEMENT OF THE CASE In 1983, Appellee, Dennis E. Varney ("Varney'), was injured at Vacuform Sign Company. (Decision, 13). He was "operating a 30 ton press brake when his left hand got caught in the press and his left 2na, 3rd, 4t', and 5th fingers were cut off by the machine." Id. Vamey underwent successful replantation of his "left (long) middle, ring, and left 5th (little) finger and a revision amputation at the DIP level of the index finger." (Decision, 14). His workers' compensation claim was initially allowed for the conditions of amputation fingers, left second (index) finger, third (middle) finger, fourth (ring) finger, fifth (little) finger. (Decision, 13). He was off work three months, returned to work at the same job and shortly thereafter was laid off. (Decision, 15). Since then, Varney has worked as a fork lift operator using his left hand. 2

7 In response to Vamey's request for an award under R.C , the Ohio Bureau of Workers' Compensation ("Bureau") in 1985 issued an order that entitled Vamey to a permanent partial disability ("PPD") award for 1/3 loss of his left index finger. (Decision, 16). This 1985 order was not appealed. Subsequently, Varney filed a C-86 motion for loss of use of his left middle, ring, and little fingers. (Decision, 17). In 1990, the Bureau issued an order that Varney was entitled to compensation for "two-thirds loss of his left middle finger; two-thirds loss of his left ring finger; two-thirds loss of his left little finger." (Decision, 17). This 1990 order was not appealed. In 1998, Varney filed a C-86 motion for a scheduled loss of use award for his left hand. (Decision, 18). A District Hearing Officer ("DHO") granted a loss of use of one-half of his left hand. (Decision, 19). This 1998 order was not appealed. In 2010, Varney filed a motion for total loss of use of his entire left hand. ((Decision, 20, and Supplement, at p. 1, "Supp. "). Nancy Renneker, M.D., Varney's expert, stated that "Varney has the equivalent of total loss of use of three fingers of his left hand and as such he should be awarded a total loss of use of left hand." (Decision, 22, and Supp. 2-5). Jeremy Burdge, M.D., examined Varney at the request of the Bureau of Workers' Compensation. In his report dated October 28, 2010, Dr. Burdge found the following impairments, as noted by the court of appeals: [I]ndex finger 60 percent impairment; middle fmger 54 percent impairment; ring finger 59 percent impairment; and little finger 59 percent impairment. Dr. Burdge opined that relator had a 37 percent impairment of his hand due to the above impairments in his respective fingers. [Correction: "60 percent" should read 69% for the index finger. (Decision, 5)]. (Decision, 24 and Supp. 6-8). 3

8 Varney's motion for total loss of use of the left hand was denied. (Decision, 26-27). The DHO found that the issue of total loss of use of the left hand is res judicata because there is a final DHO order (from the June 23, 1998 hearing) on this same issue (Decision, 26 and Supp. 9) and there were no new or changed circumstances that would warrant the commission exercising continuing jurisdiction to change the previous 1998 one-half loss of use award for the left hand. (Decision, 27, and Supp. 12). Varney's appeal to the commission was refused. (Decision, 28). Dr. Burdge opined that Varney "has a 37% impairment of the hand and not a complete loss of use." (Decision, 25). A Staff Hearing Officer ("SHO") relied on Dr. Burdge's report of October 28, 2010, and denied the appeal. (Decision, 27). The SHO reasoned as follows: In the alternative, the request is denied because the Injured Worker has provided no new evidence showing a basis for an increase above the prior award. This issue was ruled on and denied by the District Hearing Order of 06/23/1998. The only new medical evidence submitted by the Injured Worker is the 09/07/2010 report from Dr. Renneker, whose opinion on the total loss of use of the hand appears to be based solely on the location of the amputations and not on any resulting residual loss of motion or function. She makes no comparison to prior findings to show a worsening and makes no mention of such when discussing the total loss of use of the hand. Since there has been no previous award of the loss of two or more fingers and no evidence in a change in the functional loss since the 06/23/20081 (sic) ruling, the request is denied. (Emphasis added.) Id. (Supp. 12). The commission refused consideration of Varney's subsequent appeal. (Decision, 28). In January, 2011 Varney filed a motion for total loss of use of "his index, ring and little fingers." (Supp. 11). [The middle finger is not at issue in this case.] (Decision, 29). In a report of February 11, 2011, Dr. Burdge opined as to each of the fingers. (Supp ). As to the left index finger, he found a 69% impairment, but not a total and complete loss of use. 1 The SHO order contains a typographical error. The DHO order was issued in 1998, not

9 (Decision, 30). For the left long finger, he noted a 54% impairment, but stated Varney still had "significant functional use of that left long finger," and thus, he did not have a total loss of use of the left long finger. Id. Regarding Varney's left ring finger, Dr. Burdge opined that, although Varney had an impairment of 59%, he "continues to have significant functional use of his left ring finger." Id. Finally, he opined that Varney had "a 59% impairment of the little finger," and "it is not total loss of use of the left little finger" because the "patient continues to have some functional use of his left little finger." Id. He summarized his opinion as follows: After reviewing my report and considering the request, I continue to feel that this patient does not have total loss of use of his left index, little, or ring finger. This opinion is supported by the fact that the patient has returned to work as a forklift operator, stacking freight and other material utilizing both of his hands for relatively gross motor function and grip. (Decision, 30 and 25, and Supp. 15). Thus, Varney's motion for a total loss of use award for his left index, ring, and little fingers was denied. (Decision, 31-32). The DHO found several reasons for the denial. First, the DHO found "there is no legally valid medical report in file which states that the Injured Worker totally lost the functional use of these fingers." (Decision, 31, and Supp ). The DHO stated that Dr. Renneker's conclusion on the issue of Varney's functional loss of use of these fingers "was already rejected by the Staff Hearing Officer order dated 01/27/2011. Therefore, under the Zamora case [(45 Ohio St.3d 17 (1989)] the District Hearing Officer is forbidden from relying upon that report." Id. Second, the DHO found Varney's request res judicata because prior orders already awarded compensation for the fingers and Varney never appealed those orders. Id. Therefore, the issue of how much use was lost in these fingers was decided more than twenty years ago. No new surgeries, treatments, or other changes in circumstances have been alleged. Therefore, this issue is already decided. 5

10 (Decision, 31, and Supp ). Third, the DHO found that, even "if the District Hearing Officer were able to reach the merits, the most convincing medical evidence in the file (regardless of whether or not one considers Dr. Renneker) is the 02/11/2011 report of Dr. Burdge. This report once again finds less than a total functional loss of use in these three fingers." Id. Varney appealed. A SHO denied the appeal. (Decision, 32, and Supp ). Like the DHO, the SHO rejected Dr. Renneker's September 7, 2010 report under Zamora. Id. The SHO also found that the previous orders had already decided Varney's request for loss of use of the same fingers (left index, ring and little). Id. Finally, the SHO relied on Dr. Burdge's medical reports that found "a less than a total loss of use of the left index finger, left ring finger and left little finger." (Decision, 32 and Supp ). The Commission refused Varney's appeal. (Decision, 33, and Supp. 20). Varney initiated the underlying action in mandamus. The magistrate appointed by the court of appeals recommended denial of the requested writ. (Decision, 62). Varney filed objections to the magistrate's decision. (Decision, 3-5). In a split decision, the court of appeals issued a writ which directed the commission to decide the requests for loss of use of the fingers applying the court's definition: a finger is a total loss if it is "more than two-thirds useless." (Decision, 4). The commission appealed to this Court. ARGUMENT Varney must show he has a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief to obtain a writ of mandamus overruling the commission's determination. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right exists only where the relator, Varney, shows that the commission abused its 6

11 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). Varney must show that the commission acted contrary to law or grossly abused its discretion by issuing a determination unsupported by evidence in the administrative record. Id. at Absent this showing, Varney is not entitled to issuance of the extraordinary writ of mandamus. Where the record contains some evidence to support the commission's findings, the commission has committed 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). The function of the court in a mandamus action involving an order of the commission is clearly not to re-evaluate the evidence and substitute the court's judgment for that of the commission. A mandamus action does not afford a de novo review process. State ex rel. Bryant v. Indus. Comm., 74 Ohio St.3d 458, 460 (1996) ("As we reaffirmed in State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373, 658 N.E.2d 1055 (1996), we will not review the commission's findings de novo.") Rather, the judicial review is limited to an analysis of the legal propriety of the commission's determination. This Court has held that "loss" includes not only loss by amputation, but also loss of use. State ex rel. Walker v. Indus. Comm., 58 Ohio St.2d 402 (1979). A loss of use award is appropriate if the loss of use of a body part amounts to a loss of functional use "to the same effect and extent as if they had been amputated or otherwise physically removed. "' Walker at 403; State ex rel. Gassmann v. Indus. Comm., 41 Ohio St.2d 64, 67 (1975). Here, the issue is whether there is a total loss of use of the fingers in question. 7

12 Appellant Industrial Commission's Proposition of Law No. 1: The physician's impairment rating is the measure for purposes of determining a permanent partial disability award for the loss of use of a scheduled body part under R.C (B). The extent of the loss of use of a body part must be based on the report of a physician. Where there is no amputation or the amputated part has been replanted, the physician's impairment rating is the medical evidence which forms the basis for a determination of the extent of the loss of use and the appropriate corresponding award. Here, the commission relied on a physician's impairment rating to determine that there was not a total loss of use and to determine the appropriate award. The statutory authority for a loss of use award is found in R.C , which provides compensation for "permanent partial disability" ("PPD") benefits. A PPD monetary award is akin to a damage award to compensate for a permanent impairment to the body. Furthermore, certain parts of the body have been assigned a specific amount of compensation (stated as a number of "weeks") if they are a total or partial loss. R.C (B). These are the so-called "scheduled losses," which include the fingers that might be amputated or severed as a result of an industrial injury. The "phalanges" are the three bones of the finger. (See Appendix 35 a diagram of the fingers and thumb joints, submitted to assist the Court.) The statute provides that "the (amputated) loss of more than the middle and distal phalanges of any finger is considered equal to the loss of the whole finger." (Emphasis added.) R.C (B). However, there is no such provision for determining the total "loss of use" of a finger. In such a case, the finger is not amputated, but there is some degree of impairment, or loss of use. If not amputated or severed, the statute nevertheless recognizes that there may be a partial, if not a total loss of use award for the finger. 8

13 There is no numerical standard (i.e., fraction) for determining a total loss of use award for a finger. The fraction of "two-thirds" only appears once in the statue: "The (amputated) loss of the middle or second phalange of any finger is considered equal to the loss of two-thirds of the finger." R.C (B). Again, there is no stated fraction or other numerical standard for determining the total loss of use of a finger. Therefore, in the absence of an amputation, the statute requires a medical examination in order to have a physician opine as to the extent of impairment for purposes of determining the extent of the loss of use. R.C (A). Here, the court of appeals, relied heavily on State ex Nel. Rodriguez v. Indus. Comm., Tenth District Case No. 08AP-910, 2009-Ohio-4834, where the issue was the claimed total loss of use of the thumb. In Rodriguez, the court of appeals held that, where ankylosis is proven, the commission is "to determine whether a claimant has lost more than half the use of a thumb, not just whether a thumb is `useless."' Rodriguez, 6. Rodriguez is not controlling for several reasons. First and foremost, unlike the present case, in Rodriguez there is absolutely no evidence of a physician's impairment rating to support the commission's denial of a total loss of use. Second, in Rodriguez it appeared to the court (in the absence of impairment rating evidence) that the commission was applying an impossible standard of 100% impairment for a total loss of use award. However, in the present case, the physician provided an impairment rating for each finger, and the hand as a whole. So, unlike Rodriguez, in this case the commission and its hearing officer did make specific findings concerning the extent of loss of use or impairment for each finger (and the hand) to support its order to deny a total loss of use. The court of appeals does appear to concede that the statute does not provide a numerical standard for an alleged total loss of use of a finger or thumb. For instance, in State ex rel. Riter v. Indus. Comm., 91 Ohio St.3d 89, 2001-Ohio-290, cited in Rodriguez at 24, the court stated 9

14 the following: "[T]he court made some observations regarding finger anatomy and the statute: `The statute also specifies, to some degree, how loss is measured, based on the anatomy of the affected member." (Emphasis added.) "Actually, the statute requires the commission to determine to what extent the thumb may be useless where ankylosis is alleged." (Emphasis added.) Rodriguez, 32. The court recognized that the commission must rely on the opinions of the medical expert. In Rodriguez, the court explained why the claimant's theory for a total loss of use was deficient. Rodriguez, Here, as well as in Rodriguez and in Riter, the claimants are essentially arguing the notion that it is the location of the injury, that controls the determination of an alleged total loss of use. In short, claimants attempt to apply the amputation standard ("one-third" or "two- thirds") to a loss of use case. In Rodriguez, the claimant argued that the location of the fusion (the MP joint) meant that the rest of the thumb was, by definition, totally useless. Rodriguez, 35. However, the court correctly reasoned that "while the MP joint is fused, there remains adequate range of motion in the IP joint and in the first CMC joint. Relator is able to oppose his left thumb to his index finger and middle finger. Under such scenario, relator does not have more than one-half loss of use of his left thumb. Riter." Rodriguez, 35. In Riter, it was the IP or the thumb's "mid knuckle joint" that was ankylosed or fused. Even though an amputation of more than one-half of the thumb is to be considered a total loss of the whole thumb, and the IP joint is the mid-point, there was not a total loss of use of the thumb and the claimant's request for a writ was denied. Riter, p. 6. Furthermore, in Riter, the court reasoned that despite the ankylosed IP joint, the thumb could still be used for gripping and grasping. Riter, p. 7. Here, the impairment ratings for at least three of the fingers are nowhere 10

15 near 100%, and Vamey can still use his left hand for work duties as a fork lift driver and work in a warehouse. In the Rodriguez case, there were no physician impairment rating reports or opinions to explain why there was not a total loss of use. Unfortunately, the lack of impairment rating evidence apparently caused the court in the Rodriguez case (involving the thumb) to feel it necessary to announce a numerical standard or threshold for what it believed should constitutethe total loss of use of a thumb. However, a numerical standard is noticeably, but intentionally, absent from the statute. For the reasons stated herein, the physician's impairment rating must remain the standard for determining whether there is a total loss of use. The compensation award paid to the injured worker is based on the physician's "medical examination." R.C (A) states in pertinent part: [t]he hearing officer "shall determine the percentage of the employee permanent disability, except as is subject to division (B) of this section, *** and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable." (Emphasis added) R.C (A). Here, the physicians were asked to opine on the nature and extent of the impairment or loss of use. The court of appeals has mistakenly held that the standard for measuring/determining a total loss by amputation can be equally applied to a loss of use of a finger, i.e., a finger that has not been severed or amputated from the body. There is no provision in the statute that says a "two-thirds" loss of use is entitled to a total or 100% loss of use award. The standard imposed by the court of appeals is an improper reading of the statute and, accordingly, the court exceeded its authority. The "scheduled losses" are found in R.C (B), which states the following: *** 11

16 The loss [by severance] of a second, or distal, phalange of the thumb is considered equal to the loss of one half of such thumb; the loss [by severance] of more than one half of such thumb is considered equal to the loss of the whole thumb. The loss [by severance] of the third, or distal, phalange of any finger is considered equal to the loss of one-third of the finger. The loss [by severance] of the middle, or second, phalange of any finger is considered equal to the loss of two-thirds of the finger. The loss [by severance] of more than the middle and distal phalanges of any fin?er is considered equal to the loss of the whole finger. In no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. R.C (B). (Emphasis added.) All of these above listed statutory provisions relate to loss by severance or amputation, i.e., a physical loss. The statute further provides for loss of use: For ankylosis (total stiffness oj) or contractures (due to scars or injuries) which makes any of the fingers, thumbs, or parts of either useless, the same number of weeks apply to the members or parts thereof as given for the loss thereof. If the claimant has suffered the loss of two or more fingers by amputation or an losis and the nature of the claimant's employment in the course of which the claimant was working at the time of the injury or occupational disease is such that the handicap or disability resulting from the loss o^fing,ers or loss of use offingers, exceeds the normal handicap or disability resulting from the loss otfingers, or loss of use of fingers, the administrator may take that fact into consideration and increase the award of compensation accordingly, but the award made shall not exceed the amount of compensation for loss of a hand. For the loss of a hand, one hundred seventy-five weeks. * * * R.C (B). (Italics and underlining added.) There is no threshold impairment rating of "two-thirds" (or other fraction) which requires an automatic increase in the loss of use award, to a total or 100% loss of use award. The legislature could have so provided but it did not. Aside from the lack of statutory authority, there are essentially three other specific reasons why the court of appeals erred. 12

17 First and foremost, R.C (B) differentiates between the "loss" of a finger, and the "loss of use" of a finger. The legislature acknowledges that a loss of the body part can occur in either of two ways: a complete severing or amputation; or, if not amputated, then by "ankylosis (total stiffness of) or contractures (due to scar or injuries) which make any of the fingers, thumbs, or parts of either useless ***". R.C (B) (italics added). Here, the fingers are not amputated and, therefore, their functioning or "useless(ness)" must be measured by the physician to arrive at an impairment rating that the commission uses to determine the extent of the alleged loss of use. By comparison, where the loss is by amputation, there can be no "medical or clinical findings" demonstrated because the body part is completely physically gone. Second, the commission precisely applied the statute. Here, there is not a loss by amputation. The fingers are essentially intact, although with some functioning limitations. Accordingly, medical experts were called upon to make "medical or clinical findings," and determine the extent of the permanent impairment. The commission is required to rely on medical evidence when it decides the extent of disability or, in this case, "permanent partial disability" impairment. R.C (A). State ex rel. Houston v. Mental Health Millcreek Children's Psych. Hosp., 2011-Ohio-3594, 36. Here, the court of appeals decision means that the commission can rely on Dr. Burdge's reports, but must reject his opinion concerning the extent or degree of impairment because a partial loss of use (albeit based on the physician report) must be increased to a total loss of use. The third reason is that the court of appeals' standard upsets the statutory scheme. Assuming, arguendo, that a finger that is "two-thirds useless" --- a concept devised by the court - -- is entitled to a total or 100% loss of use award (which is denied), then it follows that a finger that is one-third useless is entitled to a 50% loss of use award because one-third is one-half of 13

18 two-thirds. However, that cannot be true under the statute. The statute states that an amputated one-third loss of a finger is "the loss of the third, or distal, phalange of any finger (and) is considered equal to the loss of one-third of the finger." However, if faced with a one-third loss of use claim, the court of appeals would (to be consistent) have to hold that a one-third loss of use would have to be given a 50% loss of use award, an amount greater than the statutory provision of only a one-third (33%) loss by amputation award. The court of appeals' standard would provide more compensation for loss of use than for an actual loss. Here, the commission relied upon the medical reports/opinion of Dr. Burdge. There is no dispute that the medical reports from Dr. Burdge, are medical evidence upon which the commission may rely. Therefore, based on Dr. Burdge's reports, the commission could and did properly conclude that there was not a total loss of use of the fingers in question. Nevertheless, the court of appeals held that the commission applied the wrong standard. The court held that the correct standard is "to determine whether more than two-thirds of a finger is useless and not merely whether the finger is totally useless." (Decision, 4) (Emphasis added). The court held that if the percentage of impairment as determined by the physician expert exceeded "two-thirds" (2/3), then the commission must, as a matter of law, increase the award to 3/3 or 100%, or a total loss of use. Id. However, this finding is contrary to the statute and the legislative intent. Clearly, the legislature understood that a loss of use is not the same as a loss by amputation and, accordingly, the impairment must be measured by the physician to determine a loss of use, if any. The court of appeals also held that the commission had reasoned that a "total" loss of use required that the physician find an impairment of 100%. However, that is an unfair characterization. Here, Dr. Burdge found impairments of 54% to 59% for the middle, ring and 14

19 little fingers and an overall impairment of 37% for the hand, nowhere near a total or 100% loss of use. (Decision, 24, 25 and 30). The index finger, according to Dr. Burdge, had a 69% impairment. Finally, the commission also relied on the fact that Varney has continued to use his left hand to operate a tow truck and work in a warehouse. For these reasons, the increase of a loss of use percentage award, contrary to the medical evidence is arbitrary and upsets the statutory scheme. A "loss of use" cannot and should not be treated the same as "loss" by amputation. It is both improper and unworkable to apply the standard for a total loss by amputation [i.e., a physical loss] to a loss of use [a functional loss]claim. The court of appeals erred because it changed the terms of the statute. Appellant Industrial Commission's Proposition of Law No. 2: The total loss of use of a scheduled body part is not measured in the same manner as an amputated loss of a scheduled body part. R.C (B). The "impairment," as measured by the physician, is the method or means by which the commission determines the extent of the loss of use and the loss of use award. R.C (A). It appears that the court of appeals would agree that a physician must opine as to the extent of impairment in order for the commission to determine a loss of use award. However, the error occurred when the court of appeals held that the threshold for a total loss of use is or should be the same as the threshold for a total loss by amputation --- "two-thirds." As stated above, it is impossible to equate a loss of use standard as that applied for a loss by amputation. In the first place, if a body part is amputated, no clinical findings can be made. Clinical findings are, for example, range of motion, grip strength, etc. If no amputation exists the extent of the loss of use can be measured by clinical findings which ailow the physician to detenr^ifrie the impairment rating. R.C (A) states, in pertinent part, that the hearing officer "shall determine the percentage of the employee permanent disability, except as is subject to division 15

20 (B) of this section, *** and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable." R.C (A). (Emphasis added.) Here, the physicians were asked to opine on the nature and extent of the impairment or loss of use. There is no dispute that Dr. Burdge made clinical findings to support his opinions concerning impairment for purposes of the commission's determination of the loss of use awards. The second factor to be considered, if there is no amputation, is functional capacity, that is the physical ability to perform a job. Varney, despite the alleged total loss of use, proved that he could physically perform certain duties of the job. By contrast, if amputated, the injured worker cannot use that part of the finger because it simply does not exist. Here, Varney continued to use his left hand as a tow motor/truck driver in a warehouse, a job that requires gripping the steering wheel, and other types of gross motor functions. The court of appeals standard not only conflicts with the medical evidence and the statutory language, but it does not address the Varney's work history which also negates a claimed total loss of use. Finally, with an amputation there is medical certainty: the finger or part of the finger does not exist, and can have no use whatsoever. A loss of use, however, can be measured by clinical findings, and functional capacity. Therefore, it is only the total loss of use of the finger that is to be treated the same as if it had been amputated. State ex rel. Walker, and State ex rel. Gassmann, supra. The question then is whether there is in fact a total loss of use. Here, there was not a total loss of use, as determined by Dr. Burdge, and relied upon by the commission. If the legislature wanted a two-thirds loss of use (or impairment) to be equivalent to or compensated the same as a "two-thirds" loss by amputation, the legislature would or could have so stated. First and foremost, the legislature did not say that a "two-thirds" loss of use is the equivalent of a total loss as if by amputation. Second, there is no logical reason to treat a two- 16

21 thirds loss of use the same as a two-thirds loss by amputation. They are not the same. One can be measured by clinical findings which allow the physician to assign an impairment rating, while the other (an amputation) does not allow or require any impairment rating. Finally, as a matter of law, the legislature chose not to accord them the same numerical measurement. The commission properly applied R.C and it did not abuse its discretion, when it denied Varney's request for further loss of use awards for the fingers in question. The court of appeals erred in holding otherwise. Aupellant Industrial Commission's Proposition of Law No. 3: The rules of statutory construction do not permit an increase in a medical impairment of "two-thirds" to a "total" loss of use under R.C (B). There is no statute that provides a numerical measure or threshold level of impairment that constitutes a total loss of use of a finger. Here, the statute requires, and the commission properly relied on the physician's impairment rating. R.C (A) Finally, in the absence of a numerical measure for a total loss of use, it is error to apply the standard or measure for a total loss by amputation. The court of appeals improperly reads into the statute that, if the finger is "two-thirds useless," then there is a total loss of use and there must be a 100% award despite medical evidence and work history to the contrary. "In construing a statute, it is the duty of the court to give effect to the words used in [the] statute, not to insert words not used." Neal-Pettit v. Lahman, 125 Ohio St.3d 327, 331, 2010-Ohio-1829, quoting State of Ohio v. S.R., 63 Ohio St.3d 590, 595 (1992). In the first place, the award for "the loss (by amputation) of the middle or second phalange of any finger" is limited to "two-thirds" of the total weeks allowed for the iriger in question --- not all or 100% of the weeks listed in the schedule of losses. More importantly, there is no similar measure or fraction stated in the portion of R.C (B) that provides for a 17

22 loss of use award. Finally, the legislature could have but did not state a fraction or other numerical measurement that would be a threshold that constituted a total loss of use of a finger. The rules of statutory construction do not support the court of appeals' interpretation of the statute. "Words and phrases shall be read in context and construed according to the rules of grammar and common usage." R.C "In construing a statute, [a court] must review the language, `reading undefined words and phrases in context and construing them in accordance with the rules of grammar and common usage."' State ex rel. Pontillo v. P.E.R.S. Bd., 98 Ohio St.3d 500, 505, 2003-Ohio-2120 at 41. "[R]eferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent." Carter v. Div. of Water, City of Youngstown, 146 Ohio St. 203, 209 (1946). Here, for the reasons stated above, it is improper for the court to impose an unworkable "two-thirds" standard. "If a statute is ambiguous, the court, in determining the intention of the legislature, may consider *** [t]he administrative construction of the statute." R.C "Due deference should be given to statutory interpretations by an agency that has accumulated substantial expertise and to which the General Assembly has delegated enforcement responsibility." Constellation NewEnergy, Inc. v. P. U. C.O., 104 Ohio St.3d 530, 2004-Ohio-6767 at 51. "It is a fundamental tenet of administrative law that an agency's interpretation of a statute it has the duty to enforce will not be overturned unless the interpretation is unreasonable." State ex Yel. Clark v. Great Lakes Constr. Co., 99 Ohio St.3d 320, 2003-Ohio-3802 at 10. Here, the impairment rating, as determined by a physician, and determined by the commission, is the proper measure for a loss of use. R.C (A). The court of appeals' standard (which increases the loss of use award well beyond the medical impairment evidence) is not permitted under a "liberal construction" of workers' 18

23 compensation statutes. The court of appeals' standard is improper because it reads words into the statute that were clearly omitted. In Ryan v. Connor, 28 Ohio St.3d 406, 417 (1986), the dissenting justices stated that a "liberal construction" should not and may not lead to "a tortured construction." Here, the court of appeals' standard leads to a "tortured construction" of the statute because a partial loss of use is treated the same as or equated to a total loss by amputation. Similarly, in Phillips v. Borg-Warner Corp., 32 Ohio St.2d 266, 268 (1972) [citing Szekely v. Young, 174 Ohio St. 213 (1963)] the Court explained that a liberal construction of the workers' compensation statutes in favor of certain parties does "not authorize the court to read into the statute something which cannot reasonably be implied from the language of the statute." Here, the statute cannot be changed simply for the sake of a "liberal construction" that would increase the award for a loss of use contrary to the medical evidence and work history. A "liberal construction" of a workers' compensation statute does not allow or require the commission to disregard the medical evidence. The commission's orders are valid if they are supported by medical evidence. However, the court of appeals' standard not only conflicts with or changes the statute, but it usurps the commission's exclusive authority to evaluate and rely on the medical evidence. Rodriguez, 7. The court of appeals' standard overrides the commission's determination of the loss of use which was, and should be, determined based on the medical expert's opinion of the percentage of impairment. R.C (A). The court of appeals' standard is inconsistent with and disrupts the statutory scheme. The legislature and the commission understand that the loss of use is measured by the physician's impairment rating. Furthermore, a loss of use is not the same as and, more importantly, cannot be measured in the same manner as a loss by amputation. A loss of use cannot be equated to a loss by amputation. The court of appeals' numerical threshold ("two-thirds") for a total loss of 19

24 use of a "scheduled" body part [R.C (B)] would likely change or adversely affect the statutory provision for a non-scheduled body part in R.C (A). Finally, a "liberal construction," even if well intended, should never be used if it requires the commission to disregard the medical evidence. CONCLUSION The commission did not abuse its discretion nor act contrary to law. The court of appeals exceeded its authority because the standard it imposes changes the statute and requires the commission to increase the loss of use award well above the relied upon physician's impairment rating. For these reasons, this Court should reverse the decision and judgment of the court of appeals and deny the requested writ of mandamus. Respectfully submitted, MICHAEL DEWINE ( ) Ohio Attorney Ge VIN J. REIS (00*669) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22nd Floor Columbus, Ohio (614) (614) Fax com Counsel for Appellant, Industrial Commission of Ohio 20

25 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing and Appendix was served on this 12th day of April, 2013, to: Via U.S. Mail Chelsea J. Fulton Philip J. Fulton Law Office 89 E. Nationwide Blvd., Suite 300 Columbus, Ohio Counsel for Appellee, Dennis E. Varney KEVIN J. REIS Assistant Attorney General 21

26 APPENDIX 22

27 3fttthe oupremce Court of (ebf a STATE OF OHIO, ex rel. DENNIS E. VARNEY, vs. Relator-Appellee, INDUSTRIAL COMMISSION OF OHIO, CASE NO. ^ - ^;^ ^ 2 0 ^ 0 On Appeal from the Franklin County Court of Appeals, Tenth Appellate District, Case No. 11AP-585 Respondent-Appellant. and TOTAL IMAGE SPECIALISTS, LLC, Respondent. NOTICE OF APPEAL OF APPELLANT, INDUSTRIAL COMMISSION OF OHIO 'CHELSEA J. FULTON ( ) Philip J. Fulton Law Office 89 East Nationwide Blvd., Suite 300 Columbus, Ohio fax chelsea@fultonlaw.com Counsel for Relator-Appellee, Dennis E. Varney MICHAEL DEWINE ( ) Attorney General of Ohio KEVIN J. REIS ( ) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22"d Floor Columbus, Ohio fax kevin.reis@ohioattomeygeneral.gov Counsel for Respondent-Appellant, Industrial Commission of Ohio j f" iti} t E tl^^: ^E [^OJltl 1PRENti- COURI OF -OHl0 App. 1

28 NOTICE OF APPEAL OF APPELLANT INDUSTRIAL COMMISSION OF OHIO Appellant, Industrial Commission of Ohio hereby files its Notice of Appeal to the Supreme Court of Ohio, from the Judgment Entry of the Franklin County Court of Appeals, Tenth Appellate District, entered on October 24, 2012, and from its Decision, entered on October 23, 2012, in Court of Appeals Case No. 11 AP-585, a copy of which are attached hereto. This case originated as a mandamus action in the Franklin County Court of Appeals, Tenth Appellate District, and therefore this is an appeal of right. Respectfizlly submitted, MICHAEL DEWINE ( ) Ohio Attorney Gener, 'l:{.evin J. REIS ( ) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22d Floor Columbus, Ohio (614) (614) fax kevin.reis@ohioattorneygeneral.com Counsel for Respondent-Appellant, Industriat Commission of Ohio 2 App. 2

29 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served through court electronically and/or by regular U.S. Mail on this ( V+h day of December, 2012, to: Chelsea J. Fulton Philip J. Fulton Law Office 89 E. Nationwide Blvd., Suite 300 Columbus, Ohio Counsel for Relator, Dennis E. Varney KEVIN J. REIS Assistant Attorney General 3 App. 3

30 OA004 - B95.t^iN THE: COURT UF AFPp'^LI.S Cl^'F'C3UI:(': TENTH APPRLIATI^_ UJ8'I`RJt1r- State of Ohio ex. rel. DenriN F,,. Vatndy, R:eYator., TTo. ;uai'w59^ V. (REGOLAR CAt XNDA,R) IndustriaI Commission of Qhio-and Total fmage SfSecialists: :.GLC,. Respondents.: Far the reasons, stated in. the: decis.ion., of this: court rendered. hẹ r-uin oi-t flctoli.er.2.-3-'*,: 2019,. We: AIst. elairnant's fitsfi. objection an:d- part of chinxant'g. seeo,nd ohjection: We adopt fihe xrisgis#rs.te'8- findings af i'"a.ct; with- tl^^ ex-tept'ion of the fihding. iri 1f^24 -related, to Dr. Burdge's. repci3r.t, ag noted abovef but. not. Iieir:- conclusxans of Ciaiman.t's wri.t of zn.anciarriiis is,gr.s.nted, and. the matfei. 'is,.rewanded to the cnrx^i^n^is ^:on: to.determine d1ainant's eiig.ibiiity for compen.satiqri. for totiat loss of' us'e of tizs hiiger.susing the correqt stauidard ax^ieu.14ted abqw., t;psts are.assessed: Winst, the, s:ornmission:,- Wit'hin^ tiixte.. (3) days frrom the filing h.ereca,; the: :clerk-: of this. cou:rt. is herehy ordered to sexve. upon. a7lip;,artnot. in default. fprfaiture to appeax,.noti'.ce.of his: j.uds.ment. and its date of mtry up^-,n^ the ;jqurnal, ^.^...,,^,...^^....`q...a...w... s^^^ `"-^c ,,... c^kld^^ ^.E1S;R11 $rqwllr. ^..e^'... ^. i L ; :,..."^^, r : ^;: ^.,.. Q-. t^f. App. 4.

31 OA003 - X16 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Uhio ex rel. Dennis E. Varney, Relator, No. xiap-s8s V. (REGULAR CALENDAR) Industrial Cornnmission of Ohio and Total Image Specialists LLC, Respondents. D E C I S I O N Rendered on October 23, 2012 Philip J. Fut ton Law Office, and Chelsea J. Fulton, for relator. Michael DeWine, Attprney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio. IN MANDAMUS ON OBJECTZdNS TO THE MAGISMTE'S DECISION BROWN, P.J. }q 1} Relator, Dennis E. Varney ("clai.mmt"), has filed this, original action requesting that this court issue a writ of mandamus 4rdering respondent, Industrial Connmission of Ohio ("commission"), to vacate its order that denied a total loss of use award for his left index, ring, and little fmgers, and ordering the commission to find that he is entitled to that award. {q Z} This matter was referred to a court-appointed rn,a.gistrate purs uant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, and recommended App. 5

32 0A0p3 - X17 No. ia.ap-5$5 2 that this court deny claimant's request for a writ of mandamus. Claimant has filed objections to the magistrate's decision. (131 Claimant argues in his first objection that the magistrate erred when she distinguished State ex ret. Rodriguez v. Indus. Comm., ioth Dist. No. 08AI'-91.0, hio-4534 In Rodriguez, the issue was the loss of use of the whole thumb under R.C (B). This court in Rodriguez found that the correct test, where ankylosis is proven, is whether "a claimant has lost more than half the use of a thumb, not just whether a thumb is 'useless.' " Id. at 16. in the present case, the magistrate found that Rodriguez did not apply because Rodriguez involved the total loss of use of the thumb, whereas the present case involves the total loss of use of fmgers, and the thumb and fmgers are completely different functionally, citing State ex rel. Riter v. Indus. Comm., 914hi.o St.3d 89 (2001). Claimant contends this distinction is irrelevant, because R.C (B) already accounts for the anatomical difference between the finger and the thumb. Claimant asserts that, here, neither the commission nor the magistrate evaluated whether he lost more than two-thirds of the use of his fingers but only whether he sustained a total loss of use of each of the fmgers, which is not specific enough under Rodriguez. [141 We agree with claimant that our reasoning in Rodrigue,z applies with equal force to the present case. Although the thumb and fmgers are different in function, there is no basis to have different analyses for each with regard to determining total loss of use. The magistrate in Rodriguez discussed the anatomical differences between the thumb and fingers and reviewed Riter for purposes of determining at which thumb joint a loss of use should be considered total. Our conclusion, that the proper standard for determining total loss of use is whether ankylosis rendered more than one-half of the thumb useless, was based upon the language of R.C (B) and was independent of the discussion related to the differences between the thumb and fingers. Just as R.C (B) explicitly provides that "the loss of more than one half of such thumb is considered equal to the loss of the whole thumb[,]" R.C (B) also explicitly provides that "[t]he loss of more than the middle and distal phalanges of any finger is considered equai. to the loss of the whole finger." If in Rodriguez we concluded that R.C (B) requires the commission to determine whether more than one-half of the thumb is useless and not merely determine whether the thumb is totally useless, we must conclude similarly that App. 6

33 oa0p3 - X18 No. 1lAP R.C (B) requires the commission to determine whether more than two-thirds of a finger is useless and not merely whether the finger is totally useless. As the commission's staff hearing officer found only that claimant's fingers had less than a total loss of use and never determined whether claimant's fingers were more than two-thirds useless, we must find the commission utilized the wrong standard. For these reasons, claimant's first objection is sustained. }15} Claimant argues in his second objection that the magistrate erred as a matter of fact and law when analyzing Dr. Jeremy Burdge's medical report. Claimant first points out that the magistrate erred in her factual fmding in 124 when she stated that Dr. Burdge found in his October 28, 2oio report that claimant's index finger had a 6o percent impairment, when Dr. Burdge actually stated that the index finger had a 69 percent impairment. We agree that the magistrate erred in this respect. However, because we have found the commission used the wrong standard to analyze the present case, and we must return the matter to the commission for a re-determination using the correct standard, we decline to address the remainder of claimant's legal argument regarding Dr. Burdge's report. Therefore, we sustain claimant's second objection with regard to the magistrate's erroneous finding of fact but find moot the remainder of his second objection. We also find moot claimant's third objection, which relates to the application of res judicata and Dr. Nancy Renneker's report. fl[ 6} After an examination of the magistrate's decision, an independent review of the record, pursuant to Civ.R. 53, and due consideration of claimant's objections, we sustain claimant's first objection and part of claimant's second objection. We adopt the magistrate's findings of fact, with the exception of the finding in 1 24 related to. Dr. Burdge's report, as noted above, but not her conclusions of law. Clahnant's writ of mandamus is granted, and the matter is remanded to the commission to determine claimant's eligibility for compensation for total loss of.use of his fingers using the correct standard articulated above. Objeciions sustained in part and rendereu'rrtaai inpart; writ ofmandamus granted, and cause remanded. DORRIAN, J., concurs. S,ADhM J., dissents. App. 7

34 oa0o3 - X19 No. ixap-585 4?L M :.> a ^^0 ^0 ^ SADLER, J., dissenting. {17} Being unable to agree with the majority's decision to issue a writ of mandamus, I respectfully dissent. {q 8} For organizational purposes, I address the objections out of order. I agree with claimant's assertion that the magistrate's factual findings contain an error as 124 should read "69 percent" rather than "6o percent," and I would, therefore, correct said finding of fact. After review of the record and Dr. Burdge's report in its entirety, I do not believe this error requires a rejection of the magistrate's conclusions of law or the issuance of a writ of mandatnus. Therefore, I would ovezrule.the second objection with the noted correction to the magistrate's finding of fact. (191 With respect to claimant's first objection, I disagree with the majority's conclusi.pn that the magistrate misapplied State ex ret. Rodriguez v. Indus. Comm., ioth Dist. No. o8,ap-91o, 20og-Dhi.a-4834 Because I agree with the magistrate's treatment of Rodriguez, in n.i.y view, the magistrate correctly determined the commission applied the appropriate standard. Therefore, I would overrule clair,mant's first objection. (11101 Lastly, I would overrule claimant's third objection to the magistrate's decision. {q 11} Accordingly, I woutd overrule claimant's three objections, adopt the magistrate's decision with the noted correction, and deny the requested writ of mandamus. Because the majority does otherwise, I respectfully dissent. ^^0 :.^c ^. u. APp. 8

35 oa003 - X20 No. iyap-5$5 5 APPENDIX IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Qhio ex rel. Dennis E. Varney, Relator, No. ii.ap-585 V. (REGULAR CALENDAR) Industrial Commission of Ohio and Total Image Specialists LLC, Respondents. MAGISTRATE'S DECISION Rendered on April 17, 2012 Philip J. Fulton Law Office, and Chelsea J. Fultnr4 for relator. Mich.ael DeWine, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Qhio. IN MAND.AMUS (1112) Relator, Dennis E. Varney, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Corn.mission of Ohio ("commission") to vacate its order seeking a total loss of use award for his left index, ring, and little fingers, and ordering the commission to find that he is entitled to that award. App. 9

36 OA003 - X21 No. xaap :0 a.. tv rv. ^ 0 ;^. a :tr 0 L) c u.. Finding of Fact: fl Relator sustained a work-related injury on November 15, 1983, while working as a janitor at Vacuform Sign Company. Relator was "operating a 30 ton press brake when his left hand got caught in the press and his left 2nd, 3rd, 4th, and 5th fingers were cut off by the machine." Relator's claim was allowed for the following conditions: "amputation fingers, left second finger; third finger; fourth finger; fifth finger." {q James Nappi, M.D., performed a "successful replantation of the left middle, ring, and left 5th finger and a revision amputation at the DIP level of the index finger.rr (q 15) 3. Relator returned to the same job with the same employer three months later; however, shortly after he returned to work, relator was laid off from his job. Since that time, relator has worked as a forklift operator. ( In an order mailed August 23, 1985, the Ohio Bureau of Workers' Compensation ("BWC") granted relator one-thixd loss of his left index finger due to amputation, entitling him to eleven and two-thirds weeks of eompensation. {li In an order mailed August 29, x99o, the BWC granted relator two-thirds loss of his left middle finger, two-thirds loss of his left ring fmger, and two-thirds loss of his left little finger. Relator was awarded 20 weeks of compensation for his left midclle finger, 13 1/3 weeks of compensation for his left ring finger, and io weeks of compensation for his left little finger. (Total of 431/3 weeksx). ( On April 14, 1998, relator filed a C-86 motion seeking a scheduled loss of use award for his left hand. (None of the medical evidence filed in support of this motion is contained in the stipulation of evidence.) fq 19) 7. A hearing was held before a district hearing officer ("DHO") on June 23, Applying that portion of R.C (B) stating that an injured worker is entitled to more compensation if they have lost two or more fingers due to amputation or ankylosis, the DHO granted relator a loss of use of one-half of his hand. Specifically, the DHO stated: 1 Given that relator had already been granted a one-third loss of his left index finger, relator had been awarded a total of 55 weeks of compensation. App. 10

37 - c?a X22 No. X1AP (Emphasis sic.) O.R.C (B) states that if claimant has had 2 or more fingers amputated, he is entitled to an award not to exceed the amount for loss of the whole hand, if the claimant's job at the time he was hurt would make the loss of fingers "exceed the normal handicap or disability resulting from loss of fingers." In other words, if claimant worked at a job in which he heavily relied on his hands (such as manual labor) he could be entitled to more compensation than someone who's job required little use of hands (such as, for example, a Hearing Officer). It is undisputed that claimant had a 1/3 amputation of his left index finger and 2/3 amputation of his left middle, ring, and little fingers. For these amputations, claimant was paid 55 weeks of loss of use compensation. Therefore, if DHO finds that claimant's job was of the type which would make the loss of four fmgers "exceed the normai handicap," then it may award compensation in addition to the 55 weeks already paid, not to exceed the 175 weeks to which claimant would be entitled if he had lost the entire hand. Claimant worked as a janitor/maintenance worker when he was injured. There is no question that this is -manual labor which would require intensive use of one's hands. Therefore, loss of 2 or more fmgers to one in this line of work would "exceed the normal handicap." The next question is how much in excess of a "normal handicap" is claimant's particular loss. As previously mentioned, claimant does retain some use of his left hand. Dr. Kightlineger ( ) opines for the Administrator that claimant has lost 3o96 function of his left hand, while Dr. Nappi (9-3-91) opines for claimant that the impairment to the hand is 6o%. (120) 8. TWelve years later, on September 30, 201o, relator filed a C-86 motion seeking a scheduled loss of use award for his entire left hand. ( In support of his motion, relator attached the September 7, 2oio report and addendum of Nancy Renneker, M.D. Dr. Renneker made the following exam findings related to each finger: App. 11

38 oa003 - X23 No. xiap Examination of left index finger: (a) active range of motion of left index finger: MP o degrees - 7o degrees, PIP 0 degrees - 8o degrees, and left index finger is amputated at DIP joint (b) a total transfer sensory loss with 2 point discrimination greater than 15 mm. is noted distal to PIP joint of left index finger and (c) 3+/5 strength is noted throughout left index finger remnant. Examination of left middle finger: (a) active range of motion of left middle finger: MP o degrees - 7o degrees, PIP 0 degrees - 8o degrees, and DIP 2o degrees - 3o degrees (b) a total transfer sensory loss is noted to PIP joint of left middle finger and (c) 3/5 strength is noted throughout available range of motion of left middle finger. Examination, of left ring finger: (a) active range of motion: MP o degrees - 7o degrees, PIP go degrees - 7o degrees, and DIP joint is ankylosed in 3o degrees of flexion (b) PIP joint of left ring fmger is ulnar deviated 2o degrees (c) a total transfer sensory loss with 2 point discrimination greater than x, mm. is noted distal to PIP joint of left ring finger and (d). 3/5 strength is noted throughout available range of motion of left ring finger. Examination of left little finger: (a) active range of motion of left little finger: MP o degrees - 70 degrees, PIP 30 degrees - 7o degrees, and DIP joint is ankylosed in 3o degrees of flexion (b) PIP joint of left little finger is ulnar deviated 20 degrees and (c) there is hypersensitivity to light touch over distal tip of left little finger. Dr. Renneker also noted that relator had decreased left grip strength. Thereafter, Dr. Renneker opined that relator had a 25 percent whole person impairment as a result of a 40 percent left hand impairment. Dr. Renneker made this determination after assessing a 66 percent impairment for relator's left index finger, a 67 percent impairment for his left middle fuz.ger, a 77 percent impairment for his left ring finger, and a 62 percent impairment for his left little fmger. (9[ 22) 10. In her addendum report, Dr. Renneker opined that her findings entitled relator to a total loss of use award of his left hand. Dr. Renneker stated: Dennis Varney is entitled to a total loss of use of his left hand due to the following: (j.) left little finger was amputated at PIP joint and as such, this qualifies for a total loss of use of App. 12

39 OA003 - X24 No.11AP left little finger (2) left ring finger was amputated just distal to PIP joint i.e. with no functional bony residual lever and as such, this also qualifies for a total loss of use of left ring finger (3) left middle finger was amputated at level of mid middle phalanx and as such, this amputation is greater that 1/3 loss of use of left middle finger and less than total loss of use of left middle finger i.e. approximately a 2/3 loss of use of left middle finger and (4) left index finger was amputated at DIP joint and this corresponds to a 1/3 loss of use of left index finger. As such, Dennis Varney has the equivalent of total loss of use of three fingers of his left hand and as such he should be awarded a total loss of use of left hand. [123} 11. Jeremy Burdge, M.D. examined relator and in his October 28, 2010 report, made the following examination findings: Evaluation of his left index finger[:] motion at the MP joint o-9o degrees * * * PIP joint has 0-95 degrees of motion amputation just proximal to the DIP joint. Evaluation of the patient's left long2 finger[:] o-8o degrees of motion at the MP joint * * * o-96 degrees of motion at the PIP joint * ** ankylosis of 3o degrees of the DIP joint. Evaluation of the patient's left ring fi.nger[:] o-8o degrees of motion at the MP joint 3o-95 degrees of motion at the PIP joint * * * ankylosis of the DIP joint at 3o degrees. Evaluation of the patient's little finger[:] o-8o degrees of motion at the MP joint * * * 3o-95 degrees of motion at the PIP joint *^* ankylosis at the DIP joint of this finger at 30 degrees.. {124} Dr. Burdge found the following impairments: index finger 6o percent impairment; middle finger 54 percent impairment; ring finger 59 percent impairment; and little finger 59 percent impairment. Dr. Burdge opined that relator had a 37 percent impairment of his hand due to the above unpairments in his respective fingers. }125} After reviewing Dr. Renneker's report, Dr. Burdge explained why he disagr_eed with her u.,ltir^,ate conch-lsion t-hat relator had sustained a total loss of use of his left hand: 2 0n several occasions, Dr. Burdge identifies relator's middle finger as his long finger. App. 13

40 oao03 - X25 No. t.iap I disagree with the previous independent medical evaluation by Dr. Ren[n]eker on two counts. First, she mentions that this patient had amputations of all four fingers. This is not accurate. The patient had an amputation of a portion of his index finger, but he had replantation of the long, ring, and little fingers by Dr. Jim Nappi. This replantation of the long, ring, and little finger[s] has resulted in significant impairment to those fmgers, as previously mentioned above. However, these are not amputated fingers, and he does retain some function in these fingers. Second, I disagree with her assessment that he has loss of use of his left hand based upon his history of work. He has returned to work as a forklift driver, and stacking freight and other material utilizing both hands. A cursory evaluation of his grip strength on the left side shows it to be approximately normal to his opposite side. For all of these reasons, I feel that this patient has a 37% impairment of the hand and not a complete loss of use. {y[ 26} 12. Relator's motion was heard before a DHO on December 9, 2ofo. The DHO denied relator's motion finding that res judicata applied and that issue had been deterrnined by the prior DHO order from the June 23, 1998 hearing fmding that relator had sustained a one-half loss of use of his hand. ( Relator appealed and the matter was heard before a staff hearing officer ("SHO") on January 27, The SHO affirmed the prior DHO order and relied on the October 28, 2oio report from Dr. Burdge who opined that relator had not sustained a total loss of use of his left hand. The SHO provided the following alternative reason for denying relator's request: In the alternate, the request is denied because the Injured Worker has provided no new evidence showing a basis for an increase above the prior award. This issue was ruled on and denied by the District Hearing Order of o6/23iz998. The only new medical evidence submitted by the Injured Worker is the 09/07/2o-io report from Dr. Renneker, whose opinion on the total ioss of use of the hand appears to be based soleiy on the location of the amputations and not any resulting residual loss of motion or function. She makes no comparison to prior findings to show a worsening and makes no mention of such when discussing the total loss of use of App. 14

41 0A003 - X26 No.1iAP the hand. Since there has been no previous award of the loss of two or more fingers and no evidence in a change in the functional loss since the o6/23/2oo8 ruling, the request is denied. M 28} 14. Relator's appeal was refused by order of the commission mailed February 19, {q 29} 15. On January 3, 2ori, relator filed a C-86 motion seeking a total loss of use award for his index, ring, and little fingers. Relator did not submit any additional medical evidence. ( Dr. Burdge was asked to provide his opinion as to whether or not relator had sustained a total loss of use of each of these fingers. In his February 11, 2011 report, Dr. Burdge opined that relator had not sustained a total loss of use of each of those fingers. Specifi.cally, Dr. Burdge reviewed his previous independent medical evaluation again noting his physical findings upon examination. Dr. Burdge specifically opined: [Examination of left index finger:] [P]atient has a 69% impairment due to lack of motion, amputation, and sensory evaluations. However, this is not complete and total loss of use of that finger. * **'This does give him some functional use of his index finger. His primary impairment is due to the amputation of the distal portion of the fingertip. For all of these reasons, I cannot agree that this patient has total and complete loss of use of the left index fmger. [Fxamination of left long finger:] [P]atient has. a 54% impairment of the long finger due to decreased range of motion and decreased sensation. However, this still leaves him with a significant functional use of that left long finger. Therefore, I cannot support a total loss of use of the left long finger.,.[examination of left ring finger:] [I]mpairment of 5996 involving lack of motion and decreased sensation in this finger: While this is a significant impairment, it is not a ioo% total loss of use of the left ring finger. He clearly continues to have a significant impairment, but continues to have significant functional use of his left ring finger. [Examination of Iittle finger:] I. found that he had a 59% impairment of the little finger. He continues to have significant function at the MP and PIP joints. He continues App. 15

42 oaoo3 - X27 No. lyap to have some sensation over the length of this finger. For all of these reasons, I could only find that the patient has a59 /a impairment of the left little finger. While this is a significant impairment, it is not total loss of use of the left little finger. The patient continues to have some functional use of his left little fznger. Thereafter, Dr. Burdge opined: Later in my report, I stated that this patient "had replantation of the long, ring, and little fingers by Dr. Nappi. This replantation of the left long, ring, and little finger has resulted in significant impairment of those fingers, as previously mentioned above. However, there are not amputated fmgers, and he does retain some function in these fingers." After reviewing my report and considering the request, I continue to feel that this patient does not have total loss of use of his left index, little, or ring finger. This opinion is supported by the fact that the patient has returned to work as a forklift operator, stacking freight and other material utilizing both of his hands for relatively gross motor function and grip. ( Relator's motion was heard before a DHO on March 21, 2011, and was denied for three reasons. The DHO stated: - First, there is no legally valid medical report in fiie which states that the Injured Worker totally lost the functional use of these fingers. The only report in the file that reaches this conclusion is that of Dr. Renneker dated 09/07/2010. However, that report was already rejected by Staff Hearing Officer order dated 01/27/2oii. Therefore, under the [State ex rel. Zamora v. Indus. Comm., 45 Ohio St.Bd 17 (1989)] case, the District Hearing Officer is forbidden from relying upon that report. Second, this issue is res judicata. The Bureau of Workers' Compensation order of o8/2x/x985 awarded one-third loss of use for the left index fi.nger. The Bureau of Workers' [Compensation] order of 08/29/i9go awarded two-thirds loss of use for the left ring and little fingers. The District Hearing Officer order of o6/23/1998 again made those exact same findings in regards to those fingers in ruling upon the Injured Worker's request for loss of use of the hand. None of those orders were appealed. Therefore, the issue of how much use was lost in these fingers was decided more than App. 16

43 OA003 - X28 No. i.ia.p twenty years ago.. No new surgeries, treatments, or other changes in circumstance have been alleged. Therefore, this issue is already decided. Third, if the District Hearing Officer were able to reach the merits, the most convincing medical evidence in file (regardless of whether or not one considers Dr. Renneker) is the 02/11/2oxi report of Dr. Burdge. This report once again finds less than a total functional loss of use in these three fingers. Indeed, he once again finds the loss of use to be the same as it was found to be before, at one-third for the index finger and two-thirds for the other two. Therefore, the Injured Worker failed to meet his burden of proof on the merits. For all of these reasons, taken either together or separately, this C-86 Motion must be denied. The District Hearing Officer considered everything that was written in the file and said at the hearing before making this decision. fq Relator's appeal was heard before an SHO on April 27, The SHO denied the motion stating: The Hearing Officer relies on the fact that Dr. Renneker's 09/07/2oio report was rejected by a Staff Hearing Officer on 01/27/2011. Therefore, Dr. Renneker's 09/07/2010 report is rejected pursuant to the 2amoa r case. The Hearing Officer also finds previous orders ruled on the loss of use issue regarding these same fingers and have found a loss of use of less than a total loss for each of these fingers (left index, left little, and left ring fingers) per Bureau of Workers' Compensation orders dated 08/21/1985 and 08/29/l99o, and per a 6/23/1.998 District Hearing Officer order. In addition, the Hearing Officer relies upon Dr. Burdge's 10/28/2oio and 02/11/2011 reports. Dr. Burdge found a less than total loss of use of the left index finger, left ring finger and left little finger. Based upon all of these findings, the Hearing Off^cer denies the C-86 motion filed 01/08/2011. App. 17

44 oa003 - X29 No.11AP May 1g, 2o11. {133} 19. Relator's further appeal was refused by order of the commission mailed {q 34} 20. Thereafter, relator filed the instant mandamus action in this court. Conclusions of Law (1351 In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, relator must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such reiief. State ex rel. P'ressley v. Indus. Comm., 11 Ohio St2d 141 (1967). A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rei. 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 rei. Lewis u. Diamond Foundry Cv., 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) (136) Relator contends that the commission abused its discretion by denying his motion for a total loss of use of his left index, ring, and little fnagers. Specifically, relator contends that the commission applied the wrong standard, that the commission improperly rejected Dr. Renneker's report, and that Dr. Burdge's report does not constitute some evidence upon which the commission could rely. [1371 It is this magistrate's decision that the commission did not abuse its discretion in denying relator's motion seeking a total loss of use of his left index, ring, and littie fingers. Specifically, the magistrate finds that the commission, applied the correct standard, properly rejected the report of Dr. Renneker, and the report of Dr. Burdge does constitute some evidence upon which the commission coul.d rely. {q 38} R.C (B) provides awards of permanent partial disabi.fity compensation for specific scheduied iosses due to inuastriai inju.%. For tx'iese pulrposes, R.C (B) provides as follows: In cases included in the following schedule the compensation payable per week to the employee is the statewide average App. 18

45 oa003 - x3o No. 11AP weekly wage as defined in division (C) of section of the Revised Code per week and shall continue during the periods provided in the following schedule: For the loss of a second finger, commonly called index finger, thirty-five weeks. For the loss of a third finger, thirty weeks. For the loss of a fourth finger, twenty weeks. For the loss of a fifth finger, commonly known as the little finger, fifteen weeks. The loss of the third, or distal, phalange of any finger is considered equal to the loss of one-third of the finger. The loss of the middle, or second, phalange of any finger is considered equal to the loss of two-thirds of the finger. The loss of more than the midcile and distal phalanges of any finger is considered equal to the loss of the whole finger. In no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. For ankylosis (total stiffness of) or contractures (due to scars or injuries) which makes any of the fmgers, thumbs, or parts of either useless, the same number of weeks apply to. the members or parts thereof as given for the loss thereof For the loss of a hand, one hundred seventy-five weeks. {139} Further, pursuant to R.C (B), the commission may increase the award where an injured worker has sustained the loss or loss of use of two or more fingers by way of amputation or ankylosi.s, not to exceed the arnount of compensation payable for the loss of a hand, under the following circumstances: App. 19

46 DA003 - X31 No. r1ap If the claimant has suffered the loss of two or more fingers by amputation or ankylosis and the nature of the claimant's employment in the course of which the claimant was working at the time of the injury or occupational disease is such that the handicap or disability resulting from the loss of fingers, or loss of use of fingers, exceeds the normal handicap or disability resulting from the loss of fingers, or loss of use of fingers, the administrator may take that fact into consideration and increase the award of compensation accordingly, but the award made shall not exceed the amount of compensation for loss of a hand. (1401 In the present case, following the June 23, 1998 hearing before the DHO, it was determined that relator had sustained a one-third amputation of his left index finger as. well as a two-third amputation of his left middle, ring, and little fingers. This qualified relator for 55 weeks of loss of use compensation. Thereafter, the DHO determined that relator's job was the type which would make the loss of his fingers exceed the normal handicap or disability and granted relator additional compensation of 33 weeks after finding that relator's loss was equivalent to the loss of use of one-half of his hand. (141) Approximately 12 years later, relator filed his second motion seeking a scheduled loss of use award for his entire left hand. It was at this time that relator submitted the report and addendum from Dr. Renneker. In her report and addendum, Dr. Renneker based her conclusions concerning loss by considering the points at which each finger had been amputated without considering the replantations. As such, her conclusions concerning relator's little and ring fingers (that the loss for each was total) are incorrect. Relator already received awards for two-thirds loss of each of these fingers. Dr. Renneker opined that relator qualified by way of amputation, to a total loss of each of these fingers on grounds that the amputation for his ring fmger was greater than twothirds and that the amputation of the little finger at the PIP joint was greater than twothirds as well. These findings are incorrect. Ultimately, following a heari.ng before an SHO on January 27, 2011, the commission rejected the report and addendum of Dr. Renneker and relied on the October 28, 2oio report fr-orn Dr. B-urd.ge and far`her fovrid that relator had not presented evidence demonstrating that his current loss of use was greater than it had been in App. 20

47 QA003 - X32 No.1iAP_5g } The same month the SHO determined that relator had not demonstrated an increase in the loss of use of his left hand, relator filed his motion seeking a scheduled loss of use of his left index, ring, and little fmgers. As noted previously, relator did not submit any new medical evidence with this motion; however, the commission asked Dr. Burdge to give his opinion concerning whether relator had sustained a total loss of use of those three fingers. Dr. Burdge reiterated his physical findings upon examination from his October 28, 2oxo examination and explained the amount of functional use that relator maintained in each of these fingers. In denying relator's motion, the comrnission determined that it could not rely on Dr. Renneker's report and addendum because those had previously been rejected, and relied on the reports of Dr. Burdge to conclude that relator had not demonstrated that he had sustained a loss of use of those three fingers. {q 43} In order to qualify for a loss of use award, relator was required to present medical evidence demonstrating that, for all intents and purposes, he had sustained a total loss of use of his left index, ring, and little fingers. State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 341, hio (1441 In Alcoa, at 1( ilo, the court set forth the historical development of scheduled awards for loss of use under R.C (B) as follows: Scheduled awards pursuant to R.C (B) compensate for the "loss" of a body member and were originally confined to amputations, with the obvious exceptions of hearing and sight. In the ig7os, two cases-state ex rel. Gassmann u. Indus. Comm. (1975), 41 Oluo St.2d 64, d 157, 322 N.E.2d 66o, and State ex rel. Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, d 347, 39o N.E.2d xigo-- construed "loss," as similarly used in R.C , to include loss of use without severance. Gassmann and Walker both involved paraplegics. In sustaining each of their scheduled loss awards, we reasoned that "[flor all practical purposes, relator has lost his legs to the same effect and extent as if they had been amputated or otherwise physically removed." Gassmann, 41 Ohio St.2d at 67, d 157, 322 N.E.2d 66o; Walker, S8 Ohio St.2d at , 12 O.O.Sd 347, 390 N.E..^<d 1 ^.9 o. {145} In Alcoa, the claimant, Robert R. Cox, sustained a left arm amputation just below his elbow. Due to continuing hypersensitivity at the amputat'son site, Cox was App. 21

48 oao03 - X33 No.11AP prevented from ever wearing a prosthesis. Consequently, Cox filed a motion seeking a scheduled loss of use award for the loss of use of his left arm. (146) Through videotape evidence, Alcoa established that Cox could use his remaining left arm to push open a car door and to tuck paper under his arm. In spite of this evidence, the commission granted Cox an award for the loss of use of his left arm. (147) Alcoa filed a mandamus action which this court denied. Alcoa appealed as of right to the Supreme Court of Ohio. (1481 Affirming this court's judgment and upholding the commission's award, the Supreme Court explained, at110-1,: Alcoa urges the most literal interpretation of this rationale and argues that because claimant's arm possesses some residual utility, the standard has not been met. The court of appeals, on the other hand, focused on the opening four words, "for all practical purposes." Using this interpretation, the court of appeals found that some evidence supported the commission's award and upheld it. For the reasons to follow, we affirm that judgment., Alcoa's interpretation is unworkable because it is impossible to satisfy. Walker and Gassmann are unequivocal in their desire to extend scheduled loss benefits beyond amputation, yet under Alcoa's interpretation, neither of those claimants would have prevailed. As the court of appeals observed, the ability to use lifeless legs as a lap upon which to rest a book is a function unavailable to one who has had both legs removed, and uiider an absolute equivalency standard would preclude an award. And this will always be the case in a nonseverance situation. If nothing else, the presence of an otherwise useless limb still acts as a counterweight--and hence o aid to balance-that an amputee lacks. Alcoa's interpretation would foreclose benefits to the claimant who can raise a mangled arm sufficiently to gesture or point. It would preclude an award to someone with the hand strength to hold a pack of cards or a can of soda, and it would bar-as here-scheduled loss compensation to one with a limb segment of sufficient length to push a car door or tuck a newspaper. Surely, this could not have been the intent of the General Assembly in promulgating RC (B) or of Gassmann and Walker. App. 2 2

49 0A003 - X34 No. 1YAP Pennsylvania defines "loss of use" much as the court of appeals did in the present case, and the observations of its judiciary assist us here. In that state, a scheduled loss award requires the claimant to demonstrate either that the specific bodily member was amputated or that the claimant suffered the permanent loss of use of the injured bodily member for all practical intents and purposes. Discussing that standard, one court has written: "Generally, the 'all practical intents and purpose' test requires a more crippling injury than the 'industrial use' test in order to bring the case under section 3o6(c), supra. However, it is not necessary that the injured member of the claimant be of absolutely no use in order for him to have lost the use of it for all practical intents and purposes." Curran v. Walter E. Knipe & Sons, Inc. (1958), 185 Pa.Super. 540, 547, 138 A.2d 25:1. This approach is preferable to Alcoa's absolute equivalency standard. Having so concluded, we further find that some evidence indeed supports the comxnission's decision. Again, Dr. Perkins stated: "It is my belief, that given the claimant's residual hypersensitivity, pain, and tenderness about his left distal forearm, that he is unable to use his left upper limb at all and he should be awarded for the loss of use of the entire left upper limb given his symptoms. He has been -given in the past loss of use of the hand, but really he is unable to use a prosthesis since he has had the amputation, so virtually he is without the use of his left upper limb ** *." {q 49} In denying relator's motion, the commission first determined that it could not rely on the report and addendum of Dr. Renneker. Pursuant to State ex rel. Zamora v. Indus. Comm., 45 Ohio St.3d 17 (1989), the commission is prohibited from relying on a medical report that the commission had earlier found unpersuasive. In-Zamora, the claimant had simultaneously applied to have an additional psychiatric allowance and to have himself permanently and totally disabled. Dr. Kogut examined the claimant and opined that his depression preceded his industrial injury and that the contribution of the industrial injury to the depression was minimal. App. 23

50 oa003 - X35 No. tiap_ [1501 The commission allowed the psychiatric condition and, in so doing, implicitly rejected Dr. Kogut's report. However, ten months later, the commission denied claimant's application for permanent total disability compensation based partially on the report of Dr. Kogut. The claimant challenged the commission's subsequent reliance on that report, arguing that once rejected, the report was removed from evidentiary consideration. The court agreed. {151} In the present case, the commission rejected Dr. Renneker's report andaddendum when the commission denied relator's motion seeking a loss of use of his left hand The commission specifically noted that Dr. Renneker did not compare relator's current loss of use to the loss of use that relator had 12 years earlier. Further, as noted previously, Dr. Renneker incorrectly stated that the amputations of relator's ring and little fingers were greater than they were and greater than had already been awarded. Dr. Renneker's ultimate conclusion concerning the loss of use of each finger and of the hand was rejected. (152) Relator claims that because his report was first offered in support of his motion for loss of use of his hand and later for loss of use of individual fingers-two different issues, Zamora does not apply. However, Dr. Renneker's report and addendum addressed both issues and her conclusions concerning loss of use of each finger was rejected at the same time her opinion concerning loss of use of the hand was rejected. Having rejected that report when denying relator's motion for loss of use of his left hand, the commission was precluded from reviving that report at a later date. As such, the magistrate finds that the commission properly determined that it could not rely on Dr. Renneker's report. (q 531 Relator also contends that the commission applied the wrong standard when it relied on Dr. Burdge's report and that that report did not constitute some evidence upon which the commission could rely. For the reasons that follow, the magistrate disagrees. If 541 Relator argues that the fact his fingers retained some fur^ction was ar^ improper basis upon which to deny his motion. Relator cites this court's decision in State ex rel. Rodriguez v. Indus. Comm., ioth Dist. No. o8ap-91o, 2oog-4hio-4834, where the injured worker, Dario Rodriguez, had been denied a scheduled loss of use award for the App. 24

51 oa003 - X36 No. ilapp loss of use of his entire left thumb. This court determined that, in denying Rodxi.guez's motion, the commission did not articulate the correct standard under R.C (B) where ankylosis is proven. Specifically, this court noted that the statute provides that the loss of more than one-half of a thumb is equal to the loss of the whole thumb and requires payment where ankylosis renders the thumb or any part of the thumb useless. In making its determination that the thumb was not entirely useless, the commission did not expressly considered whether Rodriguez had lost more than half of the use of his left thumb and granted a writ of mandamus ordering the commission to re-evaluate the application. {q 55} In denying Rodriguez's motion, the commission had relied on medical evidence that Rodriguez maintained a certain range of motion of his thumb. Relator contends that the commission likewise abused its discretion here by finding that.he maintained a certain range of motion of each of his fingers. However, the loss of use of a thumb is viewed in a different light than the loss of use of a finger. Sper.ifically, this court discussed the distinction in Rodriguez by citing from the Supreme Court of Ohio's decision in State ex rel. Riter v. Indus. Comm., 91 Ohio St.3d 89 (2001). In that case, the commission specifically stated: The thumb is key to grasping and gripping. * * * John Napier, one of the world's leading primatologists of the last century, has written: "A hand without a thumb is at worst nothing but an animated fish-slice, and at best a pair of forceps whose points do not meet properly. Without the thumb, the hand is put back sixty million years in evolution terms to a stage when the thumb had no independent movement and was just' another digit. One cannot emphasize enough the importance of finger-thumb opposition for human emergence from a relatively undistinguished primate background." * * * Mechanically, the thumb "is the only digit in the hand that has this freedom to rotate or swivel; it is also unique in that all of its movements can take place independent of those of any.of the other fingers; as everyone says, the combination of strength, independence and versatility sets it apart. Because of its unique capabilities *^* the thumb, if need be, can carry on a solo act." * * * App. 25

52 0A003 - X37 No. rrap' (Citations omitted.) The thumb's special properties derive from two sources: (I) the metacarpal bone, wliich proceeds from the metacarpophalangeal joint at the thumb's base, down towards the wrist, and (2) the metacarpocarpal joint at the base of the hand near the wrist. As Napier observes: "The thumb metacarpal is unique. Alone amongst the metacarpals, it articulates by means of a freely movable saddle joint with the carpals. The remaining carpals are of the plane joint variety which have very small ranges of movement. The metacarpocarpal joint of the thumb, being of the saddle type, is almost as mobile as a ball and socket joint and has the following movements: adduction-abduction, flexion-extension and medial lateral rotation." * * * Continuing, he reported: "The functional advantage of a saddle joint is that the two opposing surfaces and their supporting ligaments are so arranged that the stability of the joint is provided without the need for a cuff of bulky muscles disposed around the joint to control and direct its movement, as is the case for other balland-socket joints like the shoulder and the hip. Bulky muscles at the root of the thumb wouid seriously impair its manipulative skill and flexibility." * * * These passages demonstrate that the thumb is truly unique and that evaluating it under standards directed at the fingers just doesn't work. The key to the thumb's uniqueness and utility lies in the metacarpal bone and metacarpocarpal joint. Thus, to say that ankylosis of the IP joint makes the thumb totally useless is wrong. (q 56} As the Riter court stated, the commission cannot evaluate the thumb under the same standards used to evaluate the fmgers. Conversely, fingers cannot be evaluated under the same standards as the thumb. Here, reiator's use of his fingers was under consideration and this court's decision in Rodriguez is not analogous. Further, to the extent t-ha.t relator argttes that the evidence sl,owe be siffprerl more t}a-n a two..thi_re-is loss of his ring and little fingers (qualifying him for loss of these entire fingers), the evidence demonstrates otherwise. App. 2 b

53 oaoo3 - X38 No. lia.p {157} Relator also argues that the Supreme Court of 0hio's decision in State ex reel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, hio-53o, demonstrates that the comxnission applied an incorrect standard. For the reasons that follow, this magistrate disagrees. (1581 In Kroger, the claimant, Dan C. Johnson, had filed an application. for the scheduled loss of use of his right hand. The Gommission had granted the award based on a report from Dr. Renneker who had concluded that Johnson had a 27 percent impaizment of his right hand and stated in an addendum that Johnson had a functional loss of use of his right hand. The employer filed a mandamus action arguing that the commission had abused its discretion. This court agreed and granted a writ of mandamus after finding that Dr. Renneker's opinion that Johnson had suffered a total loss of use of his hand was not reconcilable in her finding that he had sustained a 27 percent hand unpairinent. This court issued a writ of mandamus ordering the commission to deny Johnson's motion in its entirely. {159} On appeal, the Supreme Court of Ohio agreed that Dr. Renneker's report did not constitute some evidence upon which the commission could reply; however, in issuing a writ of mandamus, the court remanded the matter to the commission for further consideration. {q 60} The Kroger court indicated that the pivotal question was how much function remained. The court stated at 115: As a general rule, function is expressed in one of two waysnumerically or narratively. As to the former, many medical reports denominate loss as a percentage figure. A 1oo percent loss is obviously shorthand for a total loss, but there is no rule that makes ioo percent the only figure that can substantiate a total-loss-of-use award. It is unfathomable that a 98 percent loss of function, for example, would not qualify as a total loss. * * * On the other hand, a high level of impairment does not necessitate a finding of total loss, In State ex rei. Isaacs v. Indus. Comm., 96 4hio St.3d 82, 2002-Ohio-3613, 771 N.E.2d 852, 1 8-9, we upheld the commission's denial of total-loss compensation to a claimant with a 70 percent foot impairment. App. 27

54 oa X39 No. xxap (161} In the present case, Dr. Burdge provided his physical findings upon exaniination which included range of motion findings for each joint in the respective fingers. Dr. Burdge also concluded that relator's loss of use of his hand constituted a 37 percent impairment of his hand. The commission had already. awarded relator a,o percent loss of use of his hand and, as the commission indicated, relator did not present evidence demonstrating his loss of use of these specific fmgers had increased since the commission's last order. Further, as noted in Kroger, percentage of impairment does not necessarily indicate percentage of loss of use. Considefing both of Dr. Burdge's reports, the commission concluded that the loss was not total. Inasmuch as those reports contained range of motion findings, gross motor function, grip strength, and described relator's current work abilities, Dr. Burdge's reports do constitute some evidence. The evidence does not demonstrate that relator has for all intents and purposes sustained a total loss of use of his index, ring or little fingers and the commission did not abuse its discretion. (l[ 62} Based on the foregoing, it is this magistrate's decision that relator has not demonstrated that the comnxission abused its discretion in denying his motion seeking a total loss of use award for his index, ring, and little fingers and this court should deny relator's request for a writ of mandamus. /sj ft12habie Bi= Brooks STEPHANIE BISCA BROOKS MAGIST.#IATE 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 specificaily objects to that factual finding or legal conclusion as required by Civ.ft. 53(D)(3)(b) App. 28

55 ORC Ann Page's Ohio Revised Code Annotated: Copyright (c) 2013 by Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved, Current through Legislation passed by the 130th Ohio General Assembly and flied with the Secretary of State through File 1 *** Annotations current through November 9, 2012 *** TITLE 41. LABOR AND INDUSTRY CHAPTER WORKERS' COMPENSATION COMPENSATION; BENEFITS Partial disability compensation Go to the Ohio Code Archive Directory ORC Ann (2013) Partial disability compensation shall be paid as follows. Except as provided in this section, not earlier than twenty-six weeks after the date of termination of the latest period of payments under section of the Revised Code, or not earlier than twenty-six weeks after the date of the injury or contraction of an occupational disease in the absence of payments under section of the Revised Code, the employee may file an application with the bureau of workers' compensation for the determination of the percentage of the employee's permanent partial disability resulting from an injury or occupational disease. Whenever the application is filed, the bureau shall send a copy of the application to the empfoyee's employer or the employer's representative and shall schedule the employee for a medical examination by the bureau medical section. The bureau shall send a copy of the report of the medical examination to the employee, the employer, and their representatives. Thereafter, the administrator of workers' compensation shall review the employee's claim file and make a tentative order as the evidence before the administrator at the time of the making of the order warrants. If the administrator determines that there is a conflict of evidence, the administrator shall send the application, along with the claimant's fiie, to the district hearing officer who shall set the application for a hearing. The administrator shall notify the employee, the employer, and their representatives, in writing, of the tentative order and of the parties' right to request a hearing. Unless the employee, the employer, or their representative notifies the administrator, in writing, of an objection to the tentative order within twenty days after receipt of the notice thereof, the tentative order shall go into effect and the employee shall receive the compensation provided in the order. In no event shall there be a reconsideration of a tentative order issued under this division. If the employee, the employer, or their representatives timely notify the administrator of an objection to the tentative order, the matter shail be referred to a district hearing officer who shall set the application for hearing with written notices to all interested persons. Upon referral to a district hearing officer, the employer may obtain a medical examination of the employee, pursuant to rules of the industrial commission. App. 2 9

56 (A) The district hearing officer, upon the application, shall determine the percentage of the employee's permanent disability, except as is subject to division (8) of this section, based upon that condition of the employee resulting from the injury or occupational disease and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable. The employee shall receive sixty-six and two-thirds per cent of the employee's average weekly wage, but not more than a maximum of thirty-three and one-third per cent of the statewide average weekly wage as defined in division (C) of section of the Revised Code, per week regardless of the average weekly wage, for the number of weeks which equals the percentage of two hundred weeks. Except on application for reconsideration, review, or modification, which is filed within ten days after the date of receipt of the decision of the district hearing officer, in no instance shall the former award be modified unless it is found from medical or clinical findings that the condition of the claimant resulting from the injury has so progressed as to have increased the percentage of permanent partial disability. A staff hearing officer shall hear an application for reconsideration filed and the staff hearing officer's decision is finai. An employee may file an application for a subsequent determination of the percentage of the employee's permanent disability. If such an application Is filed, the bureau shall send a copy of the application to the employer or the employer's representative. No sooner than sixty days from the date of the mailing of the application to the employer or the employer's representative, the administrator shall review the application. The administrator may require a medical examination or medical review of the employee. The administrator shall issue a tentative order based upon the evidence before the administrator, provided that if the administrator requires a Medical examination or medical review, the administrator shall not issue the tentative order until the completion of the examination or review. The employer may obtain a medical examination of the empioyee and may submit medical evidence at any stage of the process up to a hearing before the district hearing officer, pursuant to rules of the commission. The administrator shall notify the employee, the employer, and their representatives, in writing, of the nature and amount of any tentative order issued on an application requesting a subsequent determination of the percentage of an employee's permanent disability. An employee, employer, or their representatives may object to the tentative order within twenty days after the receipt of the notice thereof. If no timely objection is made, the tentative order shall go into effect. In no event shall there be a reconsideration of a tentative order issued under this division. If an objection is timely made, the application for a subsequent determination shall be referred to a district hearing officer who shall set the application for a hearing with written notice to all interested persons. No application for subsequent percentage determinations on the same claim for injury or occupational disease shall be accepted for review by the district hearing officer unless supported by substantial evidence of new and changed circumstances developing since the time of the hearing on the original or last determination, No award shall be made under this division based upon a percentage of disability which, when taken with all other percentages of permanent disability, exceeds one hundred per cent. If the percentage of the permanent disability of the employee equals or exceeds ninety per cent, compensation for permanent partial disability shall be paid for two hundred weeks.. Compensation payable under this division accrues and is payable to the employee from the date of last payment of compensation, or, in cases where no previous compensation has been paid, from the date of the injury or the date of the diagnosis of the occupational disease. When an award under this division has been made prior to the death of an employee, all unpaid installments accrued or to accrue under the provisions of the award are payable to the surviving spouse, or if there is no surviving spouse, to the dependent children of the employee, and if there are no children surviving, then to other dependents as the administrator determines. (B) For purposes of this division, "payable per week" means the seven consecutive day period App. 30

57 in which compensation is paid in installments according to the schedule associated with the applicable injury as set forth in this division. Compensation paid in weekly installment's according to the schedule described in this division may only be commuted to one or more lump-sum payments pursuant to the procedure set forth in section of the Revised Code. In cases included in the following schedule the compensation payable per week to the employee is the statewide average weekly wage as defined in division (C) of section of the Revised Code per week and shall be paid in installments according to the following schedule: For the loss of a first finger, commonly known as a thumb, sixty weeks. For the loss of a second finger, commonly called index finger, thirty-five weeks. For the loss of a third finger, thirty weeks. For the loss of a fourth finger, twenty weeks. For the loss of a fifth finger, commonly known as the little finger, fifteen weeks. The loss of a second, or distal, phalange of the thumb is considered equal to the loss of one half of such thumb; the loss of more than one half of such thumb is considered equal to the loss of the whole thumb. The loss of the third, or distal, phalange of any finger is considered equal to the loss of onethird of the finger. The loss of the middle, or second, phalange of any finger is considered equal to the loss of two-thirds of the finger. The loss of more than the middle and distal phalanges of any finger is considered equal to the loss of the whole finger. In no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. For the loss of the metacarpal bone (bones of the palm) for the corresponding thumb, or fingers, add ten weeks to the number of weeks under this division. For ankylosis. (total stiffness of) or contractures (due to scars or injuries) which makes any of the fingers, thumbs, or parts of either useless, the same number of weeks appiy to the members or parts thereof as given for the loss thereof. If the claimant has suffered the loss of two or more fingers by amputation or ankylosis and the nature of the claimant's employment in the course of which the claimant was working at the time of the injury or occupational disease is such that the handicap or disability resulting from the loss of fingers, or loss of use of fingers, exceeds the normal handicap or disability resulting from the loss of fingers, or loss of use of fingers, the administrator may take that fact into consideration and increase the award of compensation accordingly, but the award made shall not exceed the amount of compensation for loss of a hand. For the loss of a hand, one hundred seventy-five weeks. For the loss of an arm, two hundred twenty-five weeks. For the loss of a great toe, thirty weeks. App. 31

58 For the loss of one of the toes other than the great toe, ten weeks. The loss of more than two-thirds of any toe is considered equal to the loss of the whole toe. The loss of less than two-thirds of any toe is considered no loss, except as to the great toe; the loss of the great toe up to the interphalangeal joint is co-equal to the loss of one-half of the great toe; the loss of the great toe beyond the interphalangeal joint is considered equal to the loss of the whole great toe. For the loss of a foot, one hundred fifty weeks. For the loss of a leg, two hundred weeks. For the loss of the sight of an eye, one hundred twenty-five weeks. For the permanent partial loss of sight of an eye, the portion of one hundred twenty-five weeks as the administrator In each case determines, based upon the percentage of vision actually lost as a result of the injury or occupational disease, but, in no case shall an award of compensation be made for less than twenty-five per cent loss of uncorrected vision. "Loss of uncorrected vision" means the percentage of vision actually lost as the result of the injury or occupational disease. For the permanent and total loss of hearing of one ear, twenty-five weeks; but in no case shall an award of compensation be made for less than permanent and total loss of hearing of one ear. For the permanent and total loss of hearing, one hundred twenty-five weeks; but, except pursuant to the next preceding paragraph, in no case shall an award of compensation be made for less than permanent and total loss of hearing. In case an injury or occupational disease results in serious facial or head disfigurement which either impairs or may in the future impair the opportunities to secure or retain employment, the administrator shall make an award of compensation as it deems proper and equitable, in view of the nature of the disfigurement, and not to exceed the sum of ten thousand dollars. For the purpose of making the award, It is not material whether the employee is gainfully employed in any occupation or trade at the time of the administrator's determination. When an award under this division has been made prior to the death of an employee all unpaid installments accrued or to accrue under the provisions of the award shall be payable to the surviving spouse, or if there is no surviving spouse, to the dependent children of the employee and if there are no such children, then to such dependents as the administrator determines. When an employee has sustained the loss of a member by severance, but no award has:been made on account thereof prior to the employee's death, the administrator shall make an award in accordance with this division for the loss which shall be payable to the surviving spouse, or if there is no surviving spouse, to the dependent children of the employee and if there are no such children, then to such dependents as the administrator determines. (C) Compensation for partial impairment under divisions (A) and (B) of this section is in ^^.. the addition to the compensation paid the emp loyee pursuant- to section A3.^+3 n^,^ trevised. Code. A claimant may receive compensation under divisions (A) and (B) of this section. In all cases arising under division (B) of this section, if it is determined by any one of the following: (1) the amputee clinic at University hospital, Ohio state university; (2) the rehabilitation services commission; (3) an amputee clinic or prescribing physician approved by the administrator or the administrator's designee, that an injured or disabled employee is in App. 32

59 need of an artificial appliance, or in need of a repair thereof, regardless of whether the appliance or Its repair will be serviceable in the vocational rehabilitation of the injured employee, and regardless of whether the empioyee has returned to or can ever again return to any gainful employment, the bureau shall pay the cost of the artificial appliance or its repair out of the surplus created by division (B) of section of the Revised Code. In those cases where a rehabilitation services commission recommendation that an injured or disabled employee is in need of an artificial appliance would conflict with their state pian, adopted pursuant to the "Rehabilitation Act of 1973," 87 Stat. 355, 29 U.S.C.A. 701, the administrator or the administrator's designee or the bureau may obtain a recommendation from an amputee clinic or prescribing physician that they determine appropriate. (D) If an employee of a state fund employer makes application. for a finding and the administrator finds that the employee has contracted silicosis as defined in division (X), or coal miners' pneumoconiosis as defined in division (Y), or asbestosis as defined in division (AA) of section of the Revised Code, and that a change of such employee's occupation is medically advisable in order to decrease substantially further exposure to siiica dust, asbestos, or coal dust and if the employee, after the finding, has changed or shall change the employee's occupation to an occupation in which the exposure to silica dust, asbestos, or coal dust is substantially decreased, the administrator shall allow to the employee an amount equal to fifty per cent of the statewide average weekly wage per week for a period of thirty weeks, commencing as of the date of the discontinuance or change, and for a period of one hundred weeks immediately following the expiration of the period of thirty weeks, the employee shall receive sixty-six and two-thirds per cent of the loss of wages resulting directly and solely from the change of occupation but not to exceed a maximum of an amount equal to fifty per cent of the statewide average weekly wage per week. No such employee is entitled to receive more than one allowance on account of discontinuance of employment or change of occupation and benefits shali cease for any period during which the employee is employed in an occupation in which the exposure to silica dust, asbestos, or coal dust is not substantially less than the exposure in the occupation in which the employee was formerly employed or for any period during which the employee may be entitled to receive compensation or benefits under section of the Revised Code on account of disability from silicosis, asbestosis, or coal miners' pneumoconiosis. An award for change of occupation for a coal miner who has contracted coal miners' pneumoconlosis may be granted under this division even though the coal miner continues employment with the same employer, so long as the coal miner's employment subsequent to the change is such that the coal miner's exposure to coal dust is substantially decreased and a change of occupation is certified by the claimant as permanent. The administrator may accord to the employee medical and other benefits in accordance with section of the Revised Code. (E) If a firefighter or police officer makes application for a finding and the administrator finds that the firefighter or police officer has contracted a cardiovascular and pulmonary disease as defined in division (W) of section of the Revised Code, and that a change of the firefighter's or police officer's occupation is rriedically advisable in order to decrease substantially further exposure to smoke, toxic gases, chemical fumes, and other toxic vapors, and if the firefighter, or police officer, after the finding, has changed or changes occupation to an occupation in which the exposure to smoke, toxic gases, chemical fumes, and other toxic vapors is substantially decreased, the administrator shall allow to the firefighter or police officer an amount equal to fifty per cent of the statewide average weekly wage per week for a period of thirty weeks, commencing as of the date of the discontinuance or change, and for a period of seventy-five weeks immed'iately following the expiration of the period of thirry, weeks the administrator shall allow the firefighter or police officer sixty-six and two-thirds per cent of the loss of wages resulting directly and solely from the change of occupation but not to exceed a maximum of an amount equal to fifty per cent of the statewide average weekly wage per week. No such firefighter or police officer is entitled to receive more than one allowance on account of discontinuance of employment or change of occupation and benefits shall cease for any period during which the firefighter or police officer is employed in an occupation in which the exposure App. 33