[Cite as State ex rel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, 2011-Ohio-530.]




    THE STATE EX REL. KROGER COMPANY, APPELLEE, v. JOHNSON ET AL.,
                                       APPELLANTS.
                     [Cite as State ex rel. Kroger Co. v. Johnson,
                         128 Ohio St.3d 243, 2011-Ohio-530.]
Workers’ compensation — Total-loss-of-use compensation for a limb with limited
        capacity — R.C. 4123.57(B) — An internally inconsistent medical report
        is not evidence on which the Industrial Commission can rely — Judgment
        reversed, and writ granted.
  (No. 2009-2193 — Submitted January 4, 2011 — Decided February 10, 2011.)
      APPEAL from the Court of Appeals for Franklin County, No. 09AP-89,
                                     2009-Ohio-5781.
                                  __________________
        Per Curiam.
        {¶ 1} At issue is appellant Dan C. Johnson’s application for R.C.
4123.57(B) scheduled-loss compensation for an alleged total loss of use of his
right hand. In 2007, Johnson had a sudden onset of pain and coolness in his right
ring and little fingers while working as a meat cutter for appellee, Kroger
Company. The mechanics of the injury are not clear from the record, but all
physicians agree that Johnson’s condition is occupationally related.
        {¶ 2} A vascular specialist diagnosed an embolism in the right extremity,
and in the months to follow, several unsuccessful attempts were made to restore
sufficient blood flow to Johnson’s last three right fingers. By mid-2008, these
three fingers were constantly cold due to a lack of circulation. Johnson also
experienced continued stiffness, weakness, and severe temperature-induced pain
and numbness that together rendered the three fingers nonfunctional. Although
his thumb and index fingers were unaffected, Johnson’s doctors permanently
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restricted him from using his right hand for pulling, pushing, grasping, and fine
manipulation. Johnson, who worked in a freezer and other environments well
below room temperature, was also prohibited from exposing his right hand to
extreme heat or cold.
       {¶ 3} Johnson applied for compensation under R.C. 4123.57(B), alleging
a total loss of use of his right hand. On June 20, 2008, he was examined by Dr.
Nancy Renneker, who concluded that Johnson had a 27 percent impairment of his
right hand. This report was followed by an addendum from Renneker indicating
that based upon her June 20, 2008 examination, Johnson had a “functional loss of
use of his right hand.”
       {¶ 4} Kroger submitted an August 2008 report from Dr. Perry N. Funk,
who agreed with Johnson’s restrictions but did not believe that Johnson had lost
the total use of his hand:
       {¶ 5} “Based          on    today’s   examination   and   review   of   medical
documentation, it is my opinion that Mr. Johnson has not sustained a total loss of
use of his right ring finger/right hand as a direct result of the industrial injury of
this claim. Ohio law defines loss of use of an extremity to be the same as if the
extremity had been amputated. An individual does not have a ‘loss of use’ if he
can use the extremity even in a limited capacity. Based on today’s examination, it
is clear that Mr. Johnson does have use of his right hand and right ring finger even
though the use is limited. He does not therefore qualify for total loss of use of the
right ring finger/right hand.”
       {¶ 6} A district hearing officer for appellant Industrial Commission of
Ohio relied on Dr. Funk’s opinion to deny Johnson’s motion for scheduled-loss
compensation under R.C. 4123.57(B). A staff hearing officer reversed. The order
expressly relied on Dr. Renneker’s June 20, 2008 report, but also appeared to rely
in part on the restrictions contained in Dr. Funk’s report. The hearing officer was




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additionally persuaded by Johnson’s testimony, and in awarding compensation,
wrote:
         {¶ 7} “The injured worker testified at hearing that he does his activities
of daily living with his non-dominant left hand. He indicated that he can perform
limited writing and does retain pinch of his thumb to finger. However, the mere
fact that the injured worker can hold a pen and retains pinching ability between
two of his fingers does not bar him from a total loss of use award[,] as the injured
worker in the [State ex rel.] Alcoa [Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d
341, 2004-Ohio-3166, 810 N.E.2d 946] case retained the residual utility to hold a
newspaper and push a car door open[,] and he was still found eligible for a total
loss of use award. The Court noted it is not necessary that the injured worker’s
injured member be of absolutely no use in order for the injured worker to have
lost the use of it for all practical intents and purposes. The permanent restrictions
in the instant claim are of such severity as to lead the Staff Hearing Officer to find
that the injured worker is entitled to a loss of use of the right hand[,] as for all
practical intents and purposes, the injured worker’s remaining use of his right
hand is as if it had been amputated.”
         {¶ 8} Kroger filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission had abused its discretion in
granting a total-loss-of-use award. The court of appeals agreed, after finding that
the commission’s order was not supported by any evidence. State ex rel. Kroger
Co. v. Johnson, Franklin App. No. 09AP-89, 2009-Ohio-5781, ¶ 6. The court
held that Dr. Renneker’s opinion was not evidence on which the commission
could rely because there was too great an inconsistency between her assessment
of a 27 percent hand impairment and her assertion that Johnson had lost all use of
that member. Id. It accordingly issued a writ that both vacated the commission’s
award and required the agency to issue a new order denying compensation. Id. at
¶ 8.



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       {¶ 9} Johnson and the commission now appeal to this court as of right.
       {¶ 10} Scheduled-loss compensation was originally limited to amputation,
with the obvious exceptions of hearing and sight. State ex rel. Gassmann v. Indus.
Comm. (1975), 41 Ohio St.2d 64, 65-66, 70 O.O.2d 157, 322 N.E.2d 660.
Coverage later expanded to “loss of use” in the wake of Gassmann and State ex
rel. Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 404, 12 O.O.3d 347, 390
N.E.2d 1190, which involved paraplegia.        These cases construed “loss” for
purposes of R.C. 4123.57(B) (formerly R.C. 4123.57(C), 135 Ohio Laws, Part I,
1690, 1701-1702) to include both amputation and loss of use without severance.
We reasoned that a paraplegic had “[f]or all practical purposes * * * lost his legs
to the same effect and extent as if they had been amputated or otherwise
physically removed.” Gassmann at 67.
       {¶ 11} In 2004, we revisited this standard and clarified that “ ‘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.’ ” Alcoa,
102 Ohio St.3d 341, 2004-Ohio-3166, 810 N.E.2d 946, ¶ 13, quoting Curran v.
Walter E. Knipe & Sons, Inc. (1958), 185 Pa.Super. 540, 547, 138 A.2d 251. In
Alcoa, we considered the loss-of-use application of a claimant whose left arm had
been amputated below the elbow. Id. at ¶ 1. Hypersensitivity prevented the
claimant from using a prosthesis, but his employer nonetheless opposed
compensation for a total loss of use of the arm, arguing that the claimant had been
observed tucking a paper under his remaining arm segment and using his arm
segment to push open a car door. Id. at ¶ 6. Alcoa claimed that these functions
would be foreclosed to one whose arm had been severed at the shoulder and,
under a strict interpretation of Gassmann and Walker, precluded a total loss
award. Id. at ¶ 10.
       {¶ 12} We rejected Alcoa’s argument:




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       {¶ 13} “Alcoa urges the most literal interpretation of [the Gassmann and
Walker] 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.
       {¶ 14} “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 under 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 an 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 R.C. 4123.57(B) or of Gassmann
and Walker.” Id. at ¶ 10-11.
       {¶ 15} Accordingly, Johnson’s allegation of a total loss of use is not
automatically defeated merely because his right hand retains some residual
function; the pivotal question is how much function remains. As a general rule,
function is expressed in one of two ways – numerically or narratively. As to the
former, many medical reports denominate loss as a percentage figure. A 100



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percent loss is obviously shorthand for a total loss, but there is no rule that makes
100 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. To the contrary, a 75 to 80 percent loss of vision was sufficient to
support a total-loss award where the amount of loss rendered the claimant legally
blind. State ex rel. AutoZone, Inc. v. Indus. Comm., 117 Ohio St.3d 186, 2008-
Ohio-541, 883 N.E.2d 372, ¶ 20, 25.          On the other hand, a high level of
impairment does not necessitate a finding of total loss. In State ex rel. Isaacs v.
Indus. Comm., 96 Ohio St.3d 82, 2002-Ohio-3613, 771 N.E.2d 852, ¶ 8-9, we
upheld the commission’s denial of total-loss compensation to a claimant with a 70
percent foot impairment.     In addressing the medical evidence on which the
commission relied, we wrote:
       {¶ 16} “This is not a case where several doctors found a total loss of use
and a dissenter found nothing wrong. Dr. Wunder found much wrong with
claimant’s foot and felt that claimant had a high (seventy percent) degree of loss.
He just did not feel that claimant had crossed the threshold from high to total loss
of use. That is the sole relevant distinction between his opinion and the others,
and it was, of course, his prerogative to make.         Dr. Wunder’s reports are,
therefore, ‘some evidence’ supporting the commission’s decision.” Id. at ¶ 8.
       {¶ 17} Because percentage figures alone do not always tell the whole
story, a doctor’s opinion as to whether “for all practical purposes” the claimant
has lost all use of the affected member is critically important. When a medical
report contains both a narrative opinion and a percentage figure — as is
frequently the case — the two must be reconcilable, because an internally
inconsistent medical report is not evidence on which the commission can rely.
State ex rel. Lopez v. Indus. Comm. (1994), 69 Ohio St.3d 445, 449, 633 N.E.2d
528.




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        {¶ 18} In the instant case, the court of appeals found that Dr. Renneker’s
assessment of a 27 percent hand impairment could not be reconciled with her
conclusion that Johnson had lost the total use of that member.          We agree.
“Impairment” is defined as the “amount of a claimant’s anatomical and/or mental
loss of function.” State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d
167, 171, 31 OBR 369, 509 N.E.2d 946. Johnson’s 27 percent loss of function
meant that he retained 73 percent of his hand’s use, which does not equate to a
total loss.
        {¶ 19} Appellants claim that this discrepancy is immaterial because the
two findings were not contained in the same report – one was in the original
report and the other in the addendum. We disagree. This is not a situation where
the two findings were generated at two different times based on two different
examinations. Both were based on Dr. Renneker’s lone June 20, 2008 exam, and
while the addendum also took into account Dr. Funk’s findings, there is nothing
in the addendum to indicate that Dr. Renneker believed her initial 27 percent
assessment was no longer valid. Cumulatively, this means that Renneker was still
reporting both a 27 percent impairment and a total loss of use.
        {¶ 20} The court of appeals ultimately concluded that the disqualification
of Dr. Renneker’s reports required a denial of compensation. Kroger, 2009-Ohio-
5781, ¶ 6. This was presumably based on the court of appeals’ belief that the staff
hearing officer relied on no other evidence that supported a total loss of use. This
may or may not be true.
        {¶ 21} The staff hearing officer also cited with approval several of Dr.
Funk’s medical findings, so there appears to have been at least some reliance on
his report. This reliance would not initially appear to advance Johnson’s cause
because Dr. Funk specifically stated that Johnson did not have a total loss of use.
Dr. Funk, however, used an incorrect standard to evaluate the degree of loss.
According to Dr. Funk, “Ohio law defines loss of use of an extremity to be the



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same as if the extremity had been amputated. An individual does not have loss of
use if he can use the extremity even in a limited capacity.” Alcoa qualifies this
assertion: “it is not necessary that the injured member * * * be of absolutely no
use in order for him to have lost the use of it for all practical intents and
purposes.” Id., 102 Ohio St.3d 341, 2004-Ohio-3166, 810 N.E.2d 946, ¶ 13.
       {¶ 22} Given the severity of the restrictions noted by Dr. Funk, it is
possible that he might have reached a different conclusion had he realized that
residual use does not necessarily bar an award. For this reason, we grant a writ
and return the cause to the commission for further consideration.
       {¶ 23} The judgment of the court of appeals is reversed, and a writ is
issued that returns the cause to the commission for further consideration.
                                                                Judgment reversed
                                                                    and writ granted.
       O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and MCGEE BROWN, JJ., concur.
       PFEIFER, J., dissents and would reverse the judgment of the court of
appeals and reinstate the order of the Industrial Commission.
                              __________________
       Bugbee & Conkle, L.L.P. and Janelle M. Matuszak, for appellee.
       Agee, Clymer, Mitchell & Laret, Robert M. Robinson, C. Russell
Canestraro, and Eric B. Cameron, for appellant Dan C. Johnson.
       Michael DeWine, Attorney General, and Charissa D. Payer, Assistant
Attorney General, for appellant Industrial Commission.
                           ______________________




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