[Cite as State ex rel. Koepf v. Indus. Comm., 2019-Ohio-3789.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Linda M. Koepf,                  :

                 Relator,                              :

v.                                                     :            No. 18AP-753

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

                 Respondents.                          :



                                           D E C I S I O N

                                  Rendered on September 19, 2019


                 On brief: Plevin & Gallucci Co., L.P.A., Frank L. Gallucci,
                 III, and Bradley Elzeer, II; Paul W. Flowers Co., L.P.A., Paul
                 W. Flowers, and Louis E. Grube, for relator.

                 On brief: Dave Yost, Attorney General, and John Smart, for
                 respondent Industrial Commission of Ohio.

                 On brief: Frantz Ward LLP, Maris J. McNamara, and
                 Angela D. Lydon, for respondent Union Oil Company of
                 California.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BEATTY BLUNT, J.
        {¶ 1} Relator, Linda M. Koepf, brings this original action seeking a writ of
mandamus to order respondent the Industrial Commission of Ohio (the "commission") to
vacate its order denying her motion for accrued benefits for her husband's total loss of use
of his arms, legs, vision in both eyes, and hearing in both ears and issue an order finding
the award is appropriate.
        {¶ 2} This court referred this matter to a magistrate of this court pursuant to Civ.R.
53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate considered the
No. 18AP-753                                                                               2


action on its merits and issued a decision that includes findings of fact and conclusions of
law, which is appended hereto. The magistrate determined that the commission did not
abuse its discretion in denying relator's request for loss of use and has recommended that
this court deny the request for a writ of mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision. Through these
objections, relator contends that (1) the magistrate applied the wrong standard of statutory
analysis by engrafting a survival requirement into R.C. 4123.57 in direct contravention of
the applicable case law; (2) the magistrate improperly credited the opinion of Thomas E.
Lieser, M.D., when it was not competent and reliable evidence; and (3) the magistrate
should have accepted the report of Donato Borrillo, M.D., as establishing total loss of use.
       {¶ 4} Because relator has filed objections, we must independently review the
record and the magistrate's decision to ascertain whether "the magistrate has properly
determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). In
order for this court to issue a writ of mandamus as a remedy from a determination of the
commission, a relator must show a clear legal right to the relief sought and that the
commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus.
Comm. 11 Ohio St.2d 141, 164 (1967).
       {¶ 5} "A clear legal right to a writ of mandamus exists when the relator shows that
the commission abused its discretion by entering an order that is not supported by any
evidence in the record." State ex rel. Metz v. GTC, Inc., 142 Ohio St.3d 359, 2015-Ohio-
1348, ¶ 11, citing State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). The court
will not disturb the commission's decision if there is "some evidence" to support it. State
ex rel. Fiber-Lite Corp. v. Indus. Comm., 36 Ohio St.3d 202 (1988); State ex rel. Bennett v.
Aldi, Inc., 10th Dist. No. 14AP-632, 2016-Ohio-83, ¶ 6. " 'Where a commission order is
adequately explained and based on some evidence[,] * * * the order will not be disturbed as
manifesting an abuse of discretion.' " State ex rel. Avalon Precision Casting Co. v. Indus.
Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, ¶ 9, quoting State ex rel. Mobley v. Indus.
Comm., 78 Ohio St.3d 579, 584 (1997). Thus, as long as some evidence supports the
commission's decision, this court must defer to the commission.
       {¶ 6} R.C. 4123.57(B) provides for compensation to a claimant for the total loss of
a body part. The claimant bears the burden of proving entitlement to compensation. State
No. 18AP-753                                                                                   3


ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 81 Ohio St.3d 56, 57 (1998). To qualify
for compensation under R.C. 4123.57(B), "a claimant must demonstrate with medical
evidence a total loss of use of the body part at issue for all practical purposes." State ex rel.
Varney v. Indus. Comm., 143 Ohio St.3d 181, 2014-Ohio-5510, ¶ 16, citing State ex rel.
Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166.
         {¶ 7} The claimant also bears the burden of showing the loss of use is permanent.
State ex rel. Carter v. Indus. Comm., 10th Dist. No. 09AP-30, 2009-Ohio-5547, ¶ 6.
Finally, the burden is on the claimant to show that a causal relationship exists between the
allowed occupational injury/disease and the alleged loss of use. State ex rel. Waddle v.
Indus. Comm., 67 Ohio St.3d 452, 454 (1993), citing Fox v. Indus. Comm., 162 Ohio St. 569
(1955), paragraph one of the syllabus.
         {¶ 8} Here, the magistrate properly determined that because there is some
evidence in the record to support the commission's denial of relator's application for a total
loss of use award, she is not entitled to mandamus relief. Specifically, both the magistrate
and the staff hearing officer ("SHO") in the proceedings below rightly found that relator
failed to present medical evidence demonstrating that, for all intents and purposes,
decedent had lost the use of his legs and arms and had lost his hearing and vision.
Furthermore, the magistrate correctly identified decedent's medical records—including the
hospice records─as being "some evidence" upon which the commission properly relied in
denying relator's motion for loss of use compensation. The record clearly shows the SHO
considered these records and concluded they did not support relator's claim for total loss
of use. Indeed, the SHO provided a detailed explanation for his reasoning behind this
conclusion. Thus, even without the report of Dr. Lieser, we agree with the magistrate's
finding that there was "some evidence" to support the commission's denial of relator's
claim.
         {¶ 9} Moreover, the report of Dr. Lieser is also "some evidence" upon which the
commission properly relied. The commission found the opinion of Dr. Lieser to be
persuasive. Furthermore, the SHO provided a detailed discussion of the reasons that he
found Dr. Lieser's opinion to be persuasive as well as the reasons that he rejected Dr.
Borrillo's report. It is well-settled that the commission is the exclusive evaluator of weight
and credibility. State ex rel. LTV Steel Co. v. Indus. Comm., 88 Ohio St.3d 284, 287 (2000).
No. 18AP-753                                                                               4


Therefore, not only was the magistrate not required to evaluate the propriety of the
commission's finding that Dr. Lieser's report was persuasive, it would have been
inappropriate for the magistrate to engage in such an analysis.
       {¶ 10} Turning to relator's objections, we reject relator's argument that the
magistrate applied the wrong standard of statutory analysis by engrafting a survival
requirement into R.C. 4123.57 in direct violation of State ex rel. Moorehead v. Indus.
Comm., 112 Ohio St.3d 27, 2006-Ohio-6364. This argument mischaracterizes both the
opinion in Moorehead and the magistrate's decision.
       {¶ 11} In this case, the magistrate did not base her decision on "duration-of-
survival" or "cognizance" requirements as would be prohibited by Moorehead. Rather, the
magistrate properly determined that the SHO did not abuse his discretion when he
concluded that the medical evidence did not establish that, had decedent been able to
survive the mesothelioma, he would have suffered loss of use. In cases where the claimant
has passed away, this court has repeatedly looked to whether the evidence supports that,
but for the decedent's death, there was a loss of use that would have been permanent. See,
e.g., State ex rel. Sagraves v. Indus. Comm., 10th Dist. No. 10AP-1030, 2012-Ohio-1010;
see also State ex rel. Carter v. Indus. Comm., 10th Dist. No. 09AP-30, 2009-Ohio-5547.
This is the correct standard to apply when evaluating a claim under R.C. 4123.57(B) and
the magistrate did not err in her analysis.
       {¶ 12} Next, we find meritless relator's contention that the magistrate improperly
credited the opinion of Dr. Lieser when it was not competent and reliable evidence. First,
this argument wholly misapprehends the role of the magistrate and the court in this case,
which is whether there is some evidence to support the denial of relator's application for an
award based on total loss of use. As discussed previously, even without Dr. Lieser's report
the medical records themselves are "some evidence" which properly support the
commission's denial; therefore, the magistrate must defer to the commission's
determination in any event.
       {¶ 13} Moreover, contrary to the position of relator, the court does not find that
Dr. Lieser's report is inherently unreliable merely because he did not consider all of the
medical records from hospice. We further find that that the Supreme Court of Ohio's
opinion in State ex rel. Timmerman Truss, Inc. v. Indus. Comm., 102 Ohio St.3d 244,
No. 18AP-753                                                                                 5


2004-Ohio-2589 does not support relator's contention that Dr. Lieser's report must be
rejected in its entirety for being ambiguous or equivocal. To the contrary, Dr. Lieser's report
specifically addresses each body part at issue and unequivocally states that the allowed
condition of malignant mesothelioma did not cause decedent to sustain a permanent and
total loss of use of any of the requested body parts for all practical purposes. This is the
correct legal standard as set forth in State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102
Ohio St.3d 341, 2004-Ohio-3166, and Dr. Lieser properly applied it.
       {¶ 14} Finally, we reject relator's argument that the magistrate should have accepted
the report of Dr. Borrillo as establishing that decedent had sustained a total loss of use of
his eyes, ears, arms and legs. The commission "need only cite evidence in support of its
decision, and the presence of contrary evidence is immaterial." State ex rel. George v.
Indus. Comm., 130 Ohio St.3d 405, 2011-Ohio-6036, ¶ 11. Because the medical records
themselves and the report of Dr. Lieser each independently constitutes "some evidence"
upon which the commission relied, this court must defer to the determination of the
commission. Furthermore, the SHO expressly rejected Dr. Borrillo's report, finding it
unpersuasive. As discussed previously, the commission is the exclusive evaluator of weight
and credibility. State ex rel. LTV Steel Co. at 287. Therefore, the commission was free to
find persuasive the report of Dr. Lieser and free to find unpersuasive the report of Dr.
Borrillo. The commission's denial of the claim for total loss of use was based on some
evidence, and the magistrate did not err by not accepting the report of Dr. Borrillo as
establishing total loss of use.
       {¶ 15} For all these reasons, we overrule relator's objections. Having conducted an
examination of the magistrate's decision and an independent review of the evidence
pursuant to Civ.R. 53, we find the magistrate properly applied the relevant law to the salient
facts in reaching the conclusion that relator is not entitled to a writ of mandamus.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein, and we deny relator's request for a writ of
mandamus.
                                         Objections overruled; writ of mandamus denied.

                           BRUNNER and NELSON, JJ., concur.
[Cite as State ex rel. Koepf v. Indus. Comm., 2019-Ohio-3789.]


                                               APPENDIX

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Linda M. Koepf,                      :

                 Relator,                              :

v.                                                     :              No. 18AP-753

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

                 Respondents.                          :



                              MAGISTRATE'S DECISION

                                      Rendered on April 25, 2019



                 Plevin & Gallucci Co., L.P.A., Frank L. Gallucci, III, and
                 Bradley Elzeer, II; Paul W. Flowers Co., L.P.A., Paul W.
                 Flowers, and Louis E. Grube, for relator.

                 Dave Yost, Attorney General, and John Smart, for respondent
                 Industrial Commission of Ohio.

                 Frantz Ward LLP, Maris J. McNamara, and Angela D.
                 Lydon, for respondent Union Oil Company of California.


                                             IN MANDAMUS

        {¶ 16} Relator, Linda M. Koepf, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied her motion for accrued benefits for her
husband's total loss of use of his arms, legs, vision in both eyes, and hearing, and ordering
the commission to find that award is appropriate.
No. 18AP-753                                                                             7


Findings of Fact:
       {¶ 17} 1. The decedent, Kyle Koepf, developed mesothelioma as a result of his
employment with respondent Union Oil Company of California ("UNOCAL").
       {¶ 18} 2. Relator, decedent's spouse, filed a workers' compensation claim which
was allowed for "death related to malignant mesothelioma-peritoneum."
       {¶ 19} 3. Decedent's date of death was March 30, 2014.
       {¶ 20} 4. On February 16, 2017, relator filed a motion requesting the payment for
loss of use compensation pursuant to R.C. 4123.57for the decedent's total loss of use of
both arms, total loss of use of both legs, total loss of vision in both eyes, and bilateral
hearing loss. In support of her motion, relator submitted the November 22, 2016
independent medical review of Donato Borrillo, M.D., who opined that decedent
developed a functional loss of use of both eyes, both ears/hearing, bilateral upper
extremities, and bilateral lower extremities prior to his death on March 30, 2014.
       {¶ 21} 5. Relator also submitted Hospice records detailing decedent's decline prior
to his death. For example, when he first arrived at Hospice, decedent was able to stand
with the aid of a walker to use a bedside urinal; however, over time, decedent needed help
to stand, and ultimately needed to use a bed pan as he could no longer get out of bed.
Another example provides that initially, decedent was able to verbally communicate with
Hospice nurses; however, over time he responded by blinking his eyes, and later did not
respond at all. Additionally, relator presented evidence that decedent's extremities
ultimately became cold and discolored, and his pulse became weaker and weaker.
       {¶ 22} 6. Thomas E. Lieser, M.D., authored a report dated March 22, 2017. Dr.
Lieser was asked to review all the medical evidence, accept the allowed conditions and the
objective findings, and offer his opinion on whether decedent suffered the total losses as
asserted by relator. Dr. Lieser ultimately concluded that the medical evidence did not
support the findings of Dr. Borrillo. Dr. Lieser stated:
               The medical documentation reveals the obvious findings of
               mesothelioma with multiple opinions that the claimant
               suffered from asbestos related mesothelioma from prior
               exposure to asbestos. The cause of death on the death
               certificate of mesothelioma provides no incite as to the
               claimant's functional use of his arms, legs, eyes, and ears prior
               to and leading up to his death on 03/30/2014. * * * No autopsy
               evidence is available regarding this claim. Nonetheless, at no
No. 18AP-753                                                                            8


               time did any of the treating physicians, specialists, surgeons,
               and other evaluators document any loss of function of the
               arms and legs that would constitute a total loss of use. At no
               time was any total loss of function of the ears, the hearing, the
               eyes and the vision documented. Unfortunately, Dr. Borrillo
               has provided no objective evidence in support of his opinion
               that Mr. Koepf had experienced total loss of use of his arms,
               total loss of use of his legs, total loss of vision, and total loss of
               hearing prior to death. On the contrary, the medical evidence
               would indicate that in fact Mr. Koepf retained total use of his
               eyes, his vision, his ears, his hearing, and total functional use
               of his arms and legs such that had he somehow survived the
               effects of the mesothelioma, he would have retained complete
               use of the arms, legs, vision and hearing.

               As he progressively deteriorated he demonstrated use of his
               hearing and vision while responding to people. In summary,
               there is a complete absence of any objective evidence that Mr.
               Koepf suffered from total loss of function of the arms, the legs,
               his vision and hearing for any period of time prior to his death.
               There has been no specialist evaluation by an otolaryngologist
               to confirm total loss of use of hearing, nor has there been any
               specialist evaluation by an ophthalmologist to support total
               loss of use of vision.

               ***

               There is no objective evidence that the malignant
               mesothelioma from which the claimant died served to cause
               total permanent loss of use of the arms to such a degree that
               the affected body part was useless for all practical purposes.
               The medical evidence provides absolutely no objective
               findings that would support the permanent and total loss of
               use of the function of the arms prior to death. Had Mr. Koepf
               survived the mesothelioma, which caused his death on
               03/30/2014, he would have retained complete and full use of
               his arms. There is no objective evidence to support anything
               to the contrary.

               ***

               Prior to the injured worker's death on 03/30/2014, the
               condition malignant mesothelioma did not cause the injured
               worker to sustain a total permanent loss of use of the legs to
               such a degree that the affected body part was useless for all
               practical purposes. There is no objective evidence that Mr.
               Koepf suffered from loss of use of the legs in relation to the
No. 18AP-753                                                                       9


               malignant mesothelioma which caused his death on
               03/30/2014. There is no objective evidence of any
               impairment of the legs or the neurovascular structures that
               supply the legs that would have resulted in total loss of their
               use. To the contrary, the medical evidence reveals that had
               Mr. Koepf survived the mesothelioma and lived beyond the
               03/30/2014 date of death, he would have in fact retained full,
               complete use of his lower extremities. There is no objective
               evidence to support the contrary.

               ***

               Prior to the injured worker's death on 3/30/2014, the
               condition malignant mesothelioma did not cause the injured
               worker to sustain total permanent loss of vision to such a
               degree that the affected body part was useless for all practical
               purposes. There is absolutely no documentation of any
               objective medical evidence that supports loss of use of vision
               prior to death. There is no evidence of metastasis to the
               cranium that may have affected the eyes or the optic nerve
               transmitting signals from the eyes to the cerebral cortex nor
               any evidence of injury to the cerebral cortex itself in relation
               to the mesothelioma that would have caused total loss of use
               of his vision. There is absolutely no objective evidence that
               supports loss of vision suffered by Mr. Koepf prior to and
               leading up to his death on 03/30/2014 for any period of time.
               The objective evidence available indicates that had Mr. Koepf
               survived his mesothelioma and lived past the 03/30/2014
               date of his death, he would have in fact retained full functional
               use of his vision. There is no objective evidence to support the
               contrary.

               ***

               Prior to the injured worker's death on 03/30/2014, the
               condition of malignant mesothelioma did not cause the
               injured worker to sustain total permanent loss of hearing to
               such a degree that the affected body part was useless for all
               practical purposes. There is no objective evidence that the
               claimant sustained any impairment of his hearing especially
               in relation to the cause of his death, that being the malignant
               mesothelioma. There is absolutely no objective evidence that
               the claimant sustained any metastatic involvement or spread
               of the mesothelioma to the cranium affecting the ears or the
               acoustic nerve that transmits signals to the cortex, nor
               involvement of the cerebral cortex where hearing is processed.
               There is simply no objective evidence that Mr. Koepf suffered
No. 18AP-753                                                                            10


               from total loss of his capacity to hear as a result of the
               malignant mesothelioma during his waning days leading up
               to his death for any period of time. In summary, the objective
               medical evidence does not support loss of hearing. There is no
               objective evidence to support the contrary.

In conclusion, Dr. Lieser stated:
               In summary, the opinion expressed by Dr. Borrillo that the
               claimant had suffered loss of use of the arms, the legs, the
               vision and the hearing prior to death is not supported by any
               of the medical evidence. Dr. Borrillo did not provide any
               objective evidence to support his opinion, rather the medical
               evidence does support that Mr. Koepf indeed retained the
               ability to functionally use his vision, his hearing, his arms and
               his legs prior to his death and at the time of his death.

       {¶ 23} 7. Dr. Borrillo provided an addendum dated June 16, 2017.             In that
addendum, Dr. Borrillo indicated he had the opportunity to review decedent's records,
that Hospice records showed decedent was no longer walking on his own power as a direct
result of the allowed conditions, and that decedent's inability to walk was permanent and
would have continued indefinitely had he survived the mesothelioma.
       {¶ 24} 8. Relator's motion was heard before a district hearing officer ("DHO") on
May 31, 2017. The DHO denied the requests in their entirety, stating:
               The request for scheduled loss/loss of use of the right arm, left
               arm, right eye, left eye and bilateral hearing loss are denied,
               as there is no objective evidence of inability to use any of these
               body parts.

               The request for scheduled loss of use of both legs is denied, as
               there was no evidence of actual permanent loss or loss of use
               of the legs due to the allowed conditions in this claim. Rather,
               Injured Worker's general physical condition weakened as his
               death approached, leading to an inability to walk. This is not
               found to be a permanent condition had he recovered.

               This decision relies upon State ex rel. Carter v. Indus. Comm.
               of Ohio 2009WL3366373 and State ex rel. Sagraves v. Indus.
               Comm. 10AP—1030 and the report of Thomas Lieser, M.D.,
               03/22/2017.

       {¶ 25} 9. Relator's appeal was heard before a staff hearing officer ("SHO") on
July 19, 2017. The SHO affirmed the prior DHO order and denied the requests in their
No. 18AP-753                                                                          11


entirety. The SHO discussed the substance of Dr. Borrillo's report and found that it was
not persuasive. Thereafter, the SHO discussed the Hospice records and the report of Dr.
Lieser, stating:
               This Staff Hearing Officer makes note of the fact that the
               documentation from Pro Medica Ebeid Hospice Residence of
               Sylvania Ohio does not indicate that the Deceased-Claimant,
               Kyle L. Koepf, had lost his sight or hearing. Quite the contrary,
               the Hospice records indicate that he carried on conversations
               with the various service providers and caregivers at the
               Hospice facility. He would wake up when they spoke his name
               and he would carry on a conversations with them every day
               until his death.

               Furthermore, the Hospice records indicate that, while the
               Deceased-Claimant did have edema in both his upper and
               lower extremities, he was able to use his hands and arms for
               the purpose of using the call light to call his caregivers.
               Furthermore, while those records indicate that the Injured
               Worker was a "fall risk," they do not indicate a "loss of use" of
               the legs for all intents and purposes. They merely indicate that
               the Deceased-Claimant was, "developing leg pain and, with
               his increased weakness, he has had more difficulty with
               mobility." The records merely indicate that, even with slight
               exertion, he was easily fatigued, but those records indicate
               that the fatigue was due to abnormal respiration, not loss of
               use of his legs.

               The case of State ex rel. Moorehead v. Indus. Comm. (2006),
               112 Ohio St.3d 27, which was cited by the Injured Worker's
               legal counsel, involved a deceased worker who had fallen
               approximately 15-20 feet head first onto a concrete floor.
               Upon impact, he suffered severe spinal cord and other
               injuries. In that case it was undisputed that the spinal cord
               injury rendered him to be a quadriplegic. The only issue was
               whether or not he was entitled to an award for loss of use of
               the bilateral upper and lower extremities, since he never
               gained consciousness. The Supreme Court in the Moorehead
               case held that consciousness of the loss during extended
               period of survival is not required by R.C. Section 4123.57(B).
               However, in the instant claim, it is strongly disputed as to
               whether or not the Deceased-Claimant had "loss of use" for all
               practical intents and purposes prior to his death.

               It is the finding of this Staff Hearing Officer that the facts and
               circumstances of the instant claim are more appropriately
               analyzed under the reasoning of the Court of Appeals decision
No. 18AP-753                                                                          12


               in the case of State ex rel. Sagraves v. Indus. Comm., Tenth
               Dist. No. 10AP-1030, 2012-Ohio-1010. In that case, the issue
               was "whether, and if so, for how long, Lowery may have
               survived the crash and whether he lost the use of his legs
               during that survival period." The Court of Appeals for the
               Tenth Appellate District held that Mr. Lowery's family did not
               present persuasive evidence that Lowery had survived the
               crash and, also, that Lowery's family did not present
               persuasive evidence that Lowery's injuries, even if survivable,
               would have caused the permanent loss of use of his legs.

               Likewise, in the instant claim, the persuasive evidence
               indicates that the Widow-Claimant failed to meet her burden
               of proving that the Deceased-Claimant had a permanent loss
               of use of both arms, both legs, both eyes and both ears.

               This Staff Hearing Officer finds the opinion of Thomas E.
               Lieser, M.D., as stated in his narrative report of 03/22/2017,
               be the most persuasive in regard to the issues presented by the
               Widow-Claimant's motion filed 02/16/2017.

               Dr. Lieser made note of the fact that, "At no time did any of
               the treating physicians, specialists, surgeons, and other
               evaluators document any loss of function of the arms and legs
               that would constitute a total loss of use. At no time was any
               total loss of function of the ears, the hearing, the eyes and the
               vision documented." Furthermore, Dr. Lieser went on to state
               that, "Unfortunately, Dr. Borrillo has provided no objective
               evidence in support of his opinion that Mr. Koepf had
               experienced total loss of use of his arms, total loss of use of his
               legs, total loss of vision, and total loss of hearing prior to
               death. On the contrary, the medical evidence would indicate
               that, in fact, Mr. Koepf retained total use of his eyes, his vision,
               his ears, his hearing and total functional use of his arms and
               legs, such that he somehow survived the effects of the
               mesothelioma, he would have retained complete use of the
               arms, legs, vision and hearing." In further support of that
               opinion, Dr. Lieser stated that, in regard to the Deceased-
               Claimant, Kyle L. Koepf, "As he progressively deteriorated, he
               demonstrated use of hearing and vision, while responding to
               people. In summary, there is a complete absence of any
               objective evidence that Mr. Koepf suffered from total loss of
               function of the arms, the legs, his vision and hearing for any
               period of time prior to his death." Dr. Lieser than [sic]
               addressed each body part, separately, and stated that the
               condition of malignant mesothelioma did not cause the
No. 18AP-753                                                                               13


               Injured Worker to sustain a loss of use of any of the requested
               body parts for all practical purposes.

               Therefore, it is the order of this Staff Hearing Officer that the
               Widow-Claimant's C-86 motion, which requests an
               award for loss of use of both arms, both legs, both
               eyes, and both ears, pursuant to R.C. Section 4123.57,
               ishereby DENIED in its entirety.

(Emphasis sic.)

        {¶ 26} 10. Relator's appeal was denied by commission order mailed August 24,
2017.
        {¶ 27} 11. Relator's request for reconsideration was denied by commission order
mailed September 30, 2017.
        {¶ 28} 12. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
        {¶ 29} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
        {¶ 30} 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 relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 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 rel.
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 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).
No. 18AP-753                                                                              14


       {¶ 31} Relator argues the medical evidence clearly establishes the requested losses
of use, that Dr. Lieser clearly did not consider all the medical records from Hospice, and
that Dr. Lieser did not utilize the proper legal standard.
       {¶ 32} For the reasons that follow, it is this magistrate's decision that the
commission did not abuse its discretion here.
       {¶ 33} 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 lost the use of
his left upper extremity. State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d
341, 2004-Ohio-3166.
       {¶ 34} In Alcoa, at ¶ 10, the court set forth the historical development of scheduled
awards for loss of use under R.C. 4123.57(B) as follows:
               Scheduled awards pursuant to R.C. 4123.57(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 1970s, two cases—State ex rel. Gassmann v.
               Indus. Comm. (1975), 41 Ohio St.2d 64, 70 O.O.2d 157, 322
               N.E.2d 660, and State ex rel. Walker v. Indus. Comm. (1979),
               58 Ohio St.2d 402, 12 O.O.3d 347, 390 N.E.2d 1190—
               construed "loss," as similarly used in R.C. 4123.58, to include
               loss of use without severance. Gassmann and Walker both
               involved paraplegics. In sustaining each of their scheduled
               loss awards, we reasoned that "[f]or 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, 70 O.O.2d 157, 322 N.E.2d
               660; Walker, 58 Ohio St.2d at 403-404, 12 O.O.3d 347, 390
               N.E.2d 1190.

       {¶ 35} In Alcoa, the claimant, Robert R. Cox, sustained a left arm amputation just
below his elbow. Due to continuing hypersensitivity at the amputation site, Cox was
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.
       {¶ 36} 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.
       {¶ 37} Alcoa filed a mandamus action which this court denied. Alcoa appealed as
of right to the Supreme Court of Ohio.
No. 18AP-753                                                                        15


      {¶ 38} Affirming this court's judgment and upholding the commission's award, the
Supreme Court explained, at ¶ 10-15:
               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 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.

               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 306(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
No. 18AP-753                                                                              16


               all practical intents and purposes." Curran v. Walter E. Knipe
               & Sons, Inc. (1958), 185 Pa.Super. 540, 547, 138 A.2d 251.

               This approach is preferable to Alcoa's absolute equivalency
               standard. Having so concluded, we further find that some
               evidence indeed supports the commission's decision. Again,
               Dr. Perkins stated:

               "It is my belief that given the claimant's residual hyper-
               sensitivity, 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."

       {¶ 39} Relator points to this court's decision in State ex rel. Arberia, LLC v. Indus.
Comm., 10th Dist. No. 13AP-1024, 2014-Ohio-5351, specifically asserting the length of
time one survives does not determine loss of use and that loss of use is not dependent on
whether the decedent would have survived the injury.
       {¶ 40} In Arberia, Doloreza Taluri died following a 30 foot fall while performing
demolition work on a roof. Taluri landed on his head. Taluri's pupils were dilated, blood
and brain matter were coming from his nose, and he suffered massive hemorrhages of his
brain. Although he initially survived the fall, Taluri died four hours later.
       {¶ 41} Taluri's wife was awarded death benefits and later filed a motion asking for
an award of loss of use of Taluri's arms, legs, eyes, and ears pursuant to R.C. 4123.57(B).
The medical evidence demonstrated that Taluri had not only suffered extensive injuries
to his head and brain, but broke his neck in several places. The medical evidence
established the extent of his brain injury was such that he would have lost control of his
arms and legs, and he would have had no residual functional capacity in his extremities
had he survived the accident. The medical evidence also established that Taluri's brain
injury would have resulted in total and permanent loss of vision, which would have
persisted even if he would have survived. Finally, the medical evidence established the
brain injury would have resulted in a total permanent loss of hearing and that his hearing
organs would have been useless for all practical purposes, and that loss would have
continued had he survived his injuries.
No. 18AP-753                                                                               17


       {¶ 42} The Arberia case is distinguishable from the present case. Taluri's brain
and spinal cord injuries, in and of themselves, resulted in his total loss of use. Those
injuries also resulted in his death. Further, the medical evidence demonstrated that, even
if he had survived his injuries, Taluri would have suffered those losses.
       {¶ 43} By comparison, here, suffering from mesothelioma did not cause decedent
to suffer the loss of use of his extremities, his eyes, and his ears. As the Hospice records
indicate, as decedent neared the hour of his death, he became less and less responsive to
stimuli. However, the medical evidence did not establish that, had he been able to survive
the mesothelioma, decedent would have suffered these losses.
       {¶ 44} In other words, it was the process of dying that caused the loss. A loss that
is suffered by every patient receiving palliative care in Hospice, and though a lamentable
loss, there is no suggestion such loss is contemplated for compensation under R.C.
4123.57(B).
       {¶ 45} Relator also argues the commission abused its discretion by relying on State
ex rel. Sagraves v. Indus. Comm., 10th Dist. No. 10AP-1030, 2012-Ohio-1010. Larry
Lowery was killed while employed as a sanitation worker. While emptying a trash
container into the rear of his truck, Lowery was struck by a Ford Ranger traveling at a
high rate of speed. Ultimately, Lowery was declared dead at the scene.
       {¶ 46} Sherry Sagraves, as the guardian of Lowery's two minor children, filed a
motion seeking scheduled loss compensation for Lowery's alleged loss of use of both legs.
In considering the issue, the commission had conflicting medical evidence before it. In
denying the request, the commission relied on the medical report of Thomas E. Forte,
D.O., who opined there was no evidence that Lowery would have had loss of use of both
legs due to the injuries he sustained. Dr. Forte opined that his leg injuries could have
been repaired orthopedically had he lived.        As such, whether Lowery's death was
instantaneous or not, there was insufficient proof that even if Lowery had survived for
any period of time, he suffered the permanent loss of use of his legs.
       {¶ 47} Sagraves is instructive. The commission found the medical evidence failed
to establish that Lowery lost the use of his legs as a result of the injuries he sustained. In
other words, the medical evidence was insufficient to show that, but for the fact that he
died, Lowery would have lost the use of his legs as a result of the injuries he sustained.
No. 18AP-753                                                                              18


The same is true here. But for the fact that decedent died as a result of mesothelioma, the
medical evidence does not show that he would have suffered these losses.
       {¶ 48} An occupational disease claim, such as this, is different from a spinal cord
injury or major brain injury claim. In the former, if one survives, they do not suffer the
losses of use. However, in the latter, if one survives, no matter how briefly, they do suffer
the losses of use.
       {¶ 49} Based on the foregoing, it is this magistrate's decision that the commission
did not abuse its discretion when it denied relator's request for loss of use.
R.C. 4123.57(B) simply is not intended to provide for compensation in circumstances such
as this.
                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA




                               NOTICE TO THE PARTIES

               Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
               error on appeal the court's adoption of any factual finding or
               legal conclusion, whether or not specifically designated as a
               finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
               unless the party timely and specifically objects to that factual
               finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
