[Cite as State ex rel. Ferrolux Metals Co. of Ohio L.L.C. v. Indus. Comm., 2014-Ohio-3302.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                  :
Ferrolux Metals Co. of Ohio LLC,
                                                       :
                 Relator,
                                                       :
v.                                                                               No. 13AP-463
                                                       :
Industrial Commission of Ohio                                              (REGULAR CALENDAR)
and Derick K. Mayes,                                   :

                 Respondents.                          :



                                            D E C I S I O N

                                       Rendered on July 29, 2014


                 Ross, Brittain & Schonberg Co., LPA, Michael J. Reidy,
                 Scott W. Gedeon and Meredith L. Ulman, for relator.

                 Michael DeWine, Attorney General, and Stephen D. Plymale,
                 for respondent Industrial Commission of Ohio.

                 Nurenberg, Paris, Heller & McCarthy Co., L.P.A., Ellen M.
                 McCarthy, Brenda M. Johnson and Benjamin P. Wiborg, for
                 respondent Derick K. Mayes.


                                   IN MANDAMUS
                       ON OBJECTIONS TO MAGISTRATE'S DECISION

DORRIAN, J.
        {¶ 1} Relator, Ferrolux Metals Co. of Ohio LLC, filed this original action, naming
as respondents the Industrial Commission of Ohio ("commission"), and its former
employee, Derick K. Mayes ("claimant"). Relator requests a writ of mandamus ordering
the commission to vacate its January 8, 2013 order awarding claimant R.C. 4123.57(B)
No. 13AP-463                                                                                 2


scheduled loss compensation for the loss of use of his right hand and to enter an order
denying the compensation.
       {¶ 2}   Pursuant to Civ.R. 53(D) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
that this court deny the request for a writ of mandamus.
       {¶ 3}   Relator sets forth two objections to the magistrate's decision, as follows:
               [1.] The Magistrate acknowledged that the Industrial
               Commissioners' [sic] order was less than clear, as such the
               matter should be remanded to the Industrial Commission for
               clarification.

               [2.] The Magistrate erred in his interpretation of State ex rel.
               Timmerman Truss, Inc. v. Indus. Comm. when he
               determined the case did not hold a TFP analysis must be
               performed in a post-recovery capacity.

       {¶ 4} The argument raised in relator's second objection is essentially the same as
that raised previously and addressed by the magistrate. Relator asserts that the
magistrate erred by construing State ex rel. Timmerman Truss, Inc. v. Indus. Comm.,
102 Ohio St.3d 244, 2004-Ohio-2589, to merely require that the court review co-workers'
statements regarding the injured worker's return to work and extracurricular activities.
Relator argues that Timmerman Truss's particular acknowledgment that one of the
doctors failed to address the claimant's post-recovery activities when addressing the "flat
loss" theory supports the interpretation that a "two finger plus" analysis must be
performed in a post-recovery capacity.       Relator suggests the weight of the case law
supports such an interpretation as well.
       {¶ 5}   In his decision, the magistrate observed that Timmerman Truss stated that
"[t]he commission has never addressed claimant's postrecovery activities or the reliability
of the evidence describing these activities," and that this statement refers to the
"numerous co-worker statements" in the record attesting to the claimant's resumption of
his former position of employment and other demanding outdoor pursuits. (Appendix at
¶ 61.) The magistrate concluded that Timmerman Truss cannot be read to even suggest
that the claimant must be at MMI in order to receive a scheduled loss award.
No. 13AP-463                                                                               3


       {¶ 6}   For the reasons stated in the magistrate's decision, we reject relator's
argument and interpretation of Timmerman Truss.
       {¶ 7}   Accordingly, relator's second objection to the magistrate's decision lacks
merit and is overruled.
       {¶ 8}   In his first objection, relator asserts that the magistrate erred by not
remanding the order to the commission even though he found the order is "not a model of
clarity" with regard to the standard applied to the award. Relator suggests the
commission's order violates State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203, 249
(1991), and State ex rel. Jeffrey v. Indus. Comm., 26 Ohio St.3d 3, 5 (1986).
       {¶ 9} In his decision, the magistrate does indeed note that the commission's order
is "not a model of clarity as to the presentation of alternative bases or theories for the
award." (Appendix at ¶ 65.) He concludes, however, that the order coherently explains
the alternative theory applied pursuant to State ex rel. Alcoa Bldg. Prods. v. Indus.
Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, and therefore is consistent with State ex rel
Speelman v. Indus. Comm., 73 Ohio App.3d 757, 761 (10th Dist.1992).
       {¶ 10} We agree with the magistrate and, therefore, reject relator's argument that
the order is not in compliance with Noll and Jeffrey.
       {¶ 11} Accordingly, relator's first objection to the magistrate's decision lacks merit
and is overruled.
       {¶ 12} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find that the magistrate has
properly determined the pertinent facts and applied the appropriate law. We therefore
overrule relator's two objections to the magistrate's decision and adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained
therein. Accordingly, the requested writ of mandamus is hereby denied.
                                                        Objections overruled; writ denied.


                       KLATT and LUPER SCHUSTER, JJ., concur.
                               ____________________
No. 13AP-463                                                                            4


                                    APPENDIX
                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State of Ohio ex rel.                       :
Ferrolux Metals Co. of Ohio LLC,
                                             :
             Relator,
                                             :
v.                                                               No. 13AP-463
                                             :
Industrial Commission of Ohio                                (REGULAR CALENDAR)
and Derick K. Mayes,                         :

             Respondents.                    :



                        MAGISTRATE'S DECISION

                                Rendered on April 10, 2014


             Ross, Brittain & Schonberg Co., LPA, Michael J. Reidy, Scott
             W. Gedeon and Meredith L. Ulman, for relator.

             Michael DeWine, Attorney General, and Stephen D. Plymale,
             for respondent Industrial Commission of Ohio.

             Nurenberg, Paris, Heller & McCarthy Co., L.P.A., Ellen M.
             McCarthy, Brenda M. Johnson and Benjamin P. Wiborg, for
             respondent Derick K. Mayes.


                                    IN MANDAMUS


      {¶ 13} In this original action, relator, Ferrolux Metals Co. of Ohio LLC ("Ferrolux"
or "relator"), requests a writ of mandamus ordering respondent Industrial Commission of
Ohio ("commission") to vacate its January 8, 2013 order awarding respondent Derick K.
No. 13AP-463                                                                               5


Mayes ("claimant") R.C. 4123.57(B) scheduled loss compensation for the loss of use of his
right hand, and to enter an order denying the compensation.
Findings of Fact:
        {¶ 14} 1. On January 9, 2012, claimant sustained a severe injury to his right hand
while employed as a machine operator for Ferrolux, a state-fund employer. On that date,
his right hand was drawn into a slitting machine. The industrial claim (No. 12-800575) is
allowed for a crush injury to the right hand and fingers. Among the many allowances, the
claim is allowed for amputations of the second, third, fourth, and fifth fingers of the right
hand.
        {¶ 15} 2. Relator has undergone several right hand surgeries as a result of the
industrial injury.
        {¶ 16} 3. On May 23, 2012, claimant initially saw Todd S. Hochman, M.D., as his
treating physician. Following an examination of claimant's right upper extremity, Dr.
Hochman stated:
              Mr. Mayes presents today complaining of discomfort
              throughout the right hand. It is important to point out that
              Mr. Mayes was a right hand dominant individual prior to the
              January 09, 2012 injury. Mr. Mayes reports that he does not
              use his right hand for any functional purpose. Mr. Mayes is
              currently using his left hand for personal hygiene, to
              manipulate utensils, and for all purposeful activity.

              ***

              I have had the opportunity to obtain a history, review some
              medical records, and perform a physical examination on Mr.
              Derick Mayes. Mr. Derick Mayes sustained a significant
              crush injury to his right hand for which he ultimately
              required amputation of the right second, third, fourth, and
              fifth digits. It is my medical opinion, within a reasonable
              degree of medical probability, that Mr. Derick Mayes has, for
              all intents and purposes, lost functional use of his right hand
              as a result of the January 09, 2012 work injury.

              4. Following a May 29, 2012 office visit, Dr. Hochman wrote:
              The patient was working as a set up operator at the time of
              the injury. He is a right hand dominant individual. He will be
              unable to return to his previous position of employment. At
No. 13AP-463                                                                  6


           this time, I think it is premature to determine that he has
           reached maximum medical improvement.

           ***

           I am going to suggest that we get a second opinion from Dr.
           Harry Hoyen to determine whether or not the patient is a
           candidate for any additional surgeries to help gain some
           function throughout the hand.

     {¶ 17} 5. Following a July 31, 2012 office visit, Dr. Hochman wrote:

           The patient was referred to Dr. Harry Hoyen, an orthopedic
           upper extremity surgeon. The patient saw Dr. Hoyen on
           June 21, 2012. We obtained and reviewed that note. Dr.
           Hoyen feels that the patient may benefit a 2nd toe transfer to
           the position of the right ring finger. The patient needs to
           think about that. Dr. Hoyen feels that the patient would
           benefit from a prosthetic. I will submit a C-9 requesting the
           prosthetic consultation.

           ***

           Dr. Hoyen feels that the patient may benefit from a right 2nd
           toe transfer to the right 4th finger position. The patient
           wants to think about that. Dr. Hoyen is recommending a
           prosthetic. A C-9 will be submitted.

           ***

           The patient will remain out of work. He has not reached
           maximum medical improvement.

     {¶ 18} 6. On an October 2, 2012 office visit, Dr. Hochman wrote:

           The patient saw Dr. Hoyen in June 2012 and that that [sic]
           time the patient felt that he may benefit from a 2nd toe
           transfer to the right ring finger position. The patient is still
           not excited about another surgery. He has been wanting to
           think about it. We requested the prosthetic from Hanger. It
           appears that it is being reviewed by the BWC Catastrophic
           Nurse. The patient was approved for the physical therapy
           and is working with the therapist. We reviewed the notes. He
           is still early in the treatment course. * * * The patient
           remains out of work. His current date of disability is through
           December 15, 2012. There has been no significant change
No. 13AP-463                                                                        7


            since the last Medco-14 was completed. We will update a new
            Medco-14 with the required information re-certifying the
            disability date is December 15, 2012.

      {¶ 19} 7. Following a November 6, 2012 office visit, Dr. Hochman wrote:

            The patient saw Dr. Hoyen in June 2012 and Dr. Hoyen felt
            that the patient may benefit from a second toe transfer to the
            right ring finger position. The patient is not excited about
            another surgery. * * * The patient has been working with the
            physical therapist and we reviewed the notes. Overall, the
            patient is gaining range of motion throughout the right hand,
            right wrist, right elbow, and right shoulder. He still has a
            ways to go. After reviewing the physical therapy notes, and
            discussing the treatments with the patient, I will submit a C-
            9 requesting continuation of her rehabilitation program. * * *
            He remains out of work. We went over his previous job
            position. He worked in set up for Ferroux [sic] Metals. His
            job duties required him to utilize the right upper extremity in
            order to crank open a slitter. The patient then had to take
            multiple pieces out of the slitter and the pieces could be
            heavy, requiring utilization of both hands. The patient had to
            clean the slitter and that also required both hands. The
            patient had to clean tools which he states required both
            hands. There were 23 pieces on the top of the slitter and 23
            pieces on the bottom of the slitter and the pieces weighed up
            to 60 pounds each. He had to use both hands to remove the
            pieces. Certainly, the patient is unable to return to that
            position of employment due to the significant right hand
            injury that occurred as a result of the January 9, 2012, work
            accident. That is within a reasonable degree of probability.
            When the time is appropriate, return to work services will be
            addressed but that is a little bit premature.

      {¶ 20} 8. On November 1, 2012, claimant visited Harry A. Hoyen, M.D. In a report
dated November 9, 2012, Dr. Hoyen wrote:
            We discussed the condition. He is interested in prosthetic
            fitting. We may have to revise or recontour the index finger
            area. If it is not possible to fit the prosthesis we will proceed
            with procedure. He will contact us for a disposition after
            meeting with the prosthetist. Further evaluation in six
            months otherwise.

      {¶ 21} 9. Following a December 11, 2012 office visit, Dr. Hochman wrote:
No. 13AP-463                                                                           8


             I was able to review Dr. Hoyen's November 1, 2012, note. The
             patient does not want to consider another surgery at this
             time and Dr. Hoyen does not want to assess for another
             surgery for another 6 months from the time of the last visit,
             which is 5 months from now. The patient is unable to return
             to his previous position of employment. He has not reached
             maximum medical improvement. He will continue with the
             rehabilitation. The current date of disability is good through
             February 15, 2013. I will do a brief update of a new Medco-
             14 re-certifying disability through that date.

      {¶ 22} 10. Earlier, on July 16, 2012, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), claimant was examined by Ralph J. Kovach, M.D. In his three-
page narrative report, Dr. Kovach answered two questions:
             [One] QUESTION:
             In your medical opinion, has the allowed injury resulted in
             total, permanent loss as a result of amputation or severance?

             ANSWER:
             It is my opinion that the allowed injury has resulted in a total
             and permanent loss as a result of the amputation.

             [Two] QUESTION:
             Your report should identify and discuss the exact location of
             amputation or severance. Mark the enclosed diagram.

             ANSWER:
             I have identified that the amputation is to the metacarpal
             phalangeal joints of the digits 2, 3, 4 and 5 and have marked
             a diagram which you have enclosed to indicate the level of
             the amputation.

      {¶ 23} 11. On August 1, 2012, claimant moved for R.C. 4123.57(B) scheduled loss
compensation for the loss of use of his right hand. In support, claimant submitted the
May 23, 2012 office note of Dr. Hochman.
      {¶ 24} 12. On September 20, 2012, at relator's request, Paul C. Martin, M.D. issued
a two-page "Addendum" in which he answered two questions:
             For the purpose of this addendum, I have accepted all of the
             objective clinical findings identified by Mr. Mayes' evaluating
             and treating physicians, but not necessarily their
             conclusions.
No. 13AP-463                                                                           9


             All opinions offered in this report are held to a reasonable
             degree of medical certainty.

             [One] Does Mr. Mayes suffer from a total loss of use
             of the right hand under a "flat loss of use" theory,
             meaning that there is no functional use of the hand
             as if it had been amputated?

             It is my medical opinion Mr. Mayes does not suffer a total
             loss of use of the right hand under a "flat loss of use" theory.
             He sustained no injury involving his thumb and still exhibits
             essentially normal motion and function of the thumb.
             Considering this, he does not in my opinion have total loss of
             use of the hand under a "flat loss of use" as his situation is
             not similar as if the hand had been completely amputated.

             [Two] Bearing in mind your response to the
             preceding, does Mr. Mayes suffer from an additional
             disability above the amputation awards already
             made for his 4 right fingers (100 weeks), due to the
             nature of his employment at the time of the injury?

             I have reviewed the provided written job description, and
             based upon Mr. Mayes' clinical findings and the fact he has
             maintained relatively good function with the thumb, it is my
             medical opinion Mr. Mayes does not have additional
             disability above the amputation awards (100 weeks) already
             made for his 4 amputated fingers.

      {¶ 25} 13. Following an October 3, 2012 hearing, a district hearing officer ("DHO")
issued an order awarding R.C. 4123.57(B) scheduled loss compensation for the loss of use
of the right hand. The DHO's order explains:
             Upon review and consideration of the evidence in the claim
             file and statements at hearing the Injured Worker shall be
             paid compensation based upon scheduled loss of use of the
             right hand. Said compensation shall be paid consistent with
             Ohio law and is the equivalent of one hundred and seventy-
             five weeks of compensation. The compensation for scheduled
             loss of use of the right hand shall be paid less compensation
             the Injured Worker has already received for amputation of
             four of his fingers.
No. 13AP-463                                                                         10


             The payment of the scheduled loss of use of the right hand
             shall be paid consistent with Ohio law and Bureau of
             Workers' Compensation regulations.

             The Injured Worker sustained a significant right hand injury
             on 01/09/2012. As a result of the injuries on 01/09/2012 he
             had to undergo surgery that involved amputation of his right
             index finger, right middle finger, right ring finger, and right
             little finger. Also, the Injured Worker underwent
             debridement of palmer and dorsal skin. The Injured Worker
             indicated at hearing that he is unable to use a brush as a
             result of the injuries sustained on 01/09/2012. Therefore, he
             cannot comb his hair or brush his hair. The Injured Worker
             cannot button buttons with his right hand. The Injured
             Worker was right hand dominant. He cannot write with his
             right hand. Therefore, on a personal level the use of what is
             left of his right hand (his thumb and palm) provides only
             some residual functional value. The Injured Worker did
             indicate he could use his right hand to stabilize some things.
             He did note that he does have sensitivity at the amputation
             sites.

             Given the medical opinions in the claim file from Dr. Kovach
             as reflected in his medical report dated 07/16/2012 and in
             the medical report from Dr. Hochman dated 05/23/2012,
             there is enough evidence to conclude that the Injured
             Worker has sustained a total loss of use of his right hand as a
             result of the industrial injury in this claim.

             This order is consistent with the case of the State ex rel.
             Alcoa Building Products v. Industrial Commission of Ohio et
             al., 102 St.3d 341 (2004).

             This order is based upon the statements of the Injured
             Worker at hearing, the treatment records contained [in] the
             claim filed and the medical reports in the claim file from Dr.
             Kovach dated 07/16/2012 and from Dr. Hochman dated
             05/23/2012.

      {¶ 26} 14. Relator administratively appealed the DHO's order of October 3, 2012.
      {¶ 27} 15. Following a November 16, 2012 hearing, a staff hearing officer ("SHO")
issued an order that states that the DHO's order is "modified." However, the SHO's order
upheld the DHO's award, explaining:
No. 13AP-463                                                                         11


              Prior to the within date of injury, the injured worker was a
              right handed individual who, since age 26, had been a steel
              worker (working first in forging and then as a slitter). On
              1/9/2012, the injured worker sustained a significant right
              hand injury. The injury resulted in the surgical amputation
              of his right index, middle, ring, and little fingers. He also had
              debridement of palmer and dorsal skin. The injured worker
              testified at hearing with regard to the limitations this
              incident and resultant injuries has imposed on many of his
              activities of daily living. The injured worker's remaining
              digit, his right thumb, and his palm, with severe skin flap
              noted, is functional to stabilize some items but he has no
              gripping or pinching abilities. These injuries are readily
              visible at hearing.

              The order and award are made based on the 05/23/2012
              report and opinions and the 11/06/2012 office record and
              opinions of Dr. Hochman, the 07/15/2012 [sic] report and
              opinions of Dr. Kovach, and the injured worker's testimony
              at hearing relative to the many limitations of activities of
              daily living that he has and his inability to perform, as a now
              one-handed functioning individual, the jobs he has had
              historically.

        {¶ 28} 16. Relator administratively appealed the SHO's order of November 16,
2012.
        {¶ 29} 17. On January 8, 2013, relator's administrative appeal was heard by the
three-member commission. On March 22, 2013, the commission mailed an order that
vacates the SHO's order of November 16, 2012, but grants claimant's August 1, 2012
motion. The commission's order explains:
              On 01/09/2012, the Injured Worker sustained a severe
              industrial injury when his right hand was pulled into a
              slitting machine. The extrication of his hand from the
              machine required the use of the "jaws of life" and took
              approximately twenty minutes. He was life-flighted to
              Metrohealth Medical Center in Cleveland. As a result of his
              accident, the Injured Worker's second, third, fourth, and
              fifth fingers were amputated.

              On 02/06/2012, a request was filed on behalf of the Injured
              Worker for the amputated fingers to be formally recognized
              as allowed conditions in the claim. By Staff Hearing Officer
              order issued 05/17/2012, the claim was ordered additionally
No. 13AP-463                                                                  12


           allowed for AMPUTATION SECOND RIGHT FINGER,
           AMPUTATION THIRD RIGHT FINGER, AMPUTATION
           FOURTH RIGHT FINGER, and AMPUTATION FIFTH
           RIGHT FINGER. The Staff Hearing Officer also granted
           scheduled loss awards for the total loss of the right second,
           third, fourth and fifth fingers. The award was for 100 weeks,
           beginning 01/10/2012, pursuant to R.C. 4123.57 (B).

           By C-86 Motion filed 08/01/2012, the Injured Worker
           requested an award for the scheduled loss of use of the right
           hand.

           Relative to a loss involving the hand, R.C. 4123.57 (B) states:

           If a 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.

           In this case, the Commission finds the Injured Worker has
           sustained his burden of proving that he suffered the loss of
           two or more fingers by amputation, and that his loss exceeds
           the normal handicap or disability resulting from the loss of
           fingers. The Commission finds the Injured Worker's loss is
           equivalent to the loss of use of the right hand.

           In granting this award, the Commission has relied upon the
           07/16/2012 report from Ralph J. Kovach, M.D., wherein Dr.
           Kovach confirms the Injured Worker sustained the
           amputations of the second, third, fourth and fifth digits of
           the right hand. Further, the reports from Todd S. Hochman,
           M.D., dated 05/23/2012, 07/31/2012, and 11/06/2012,
           support the determination that medically, the Injured
           Worker's finger amputations result in the loss of functional
           use of the right hand. Dr. Hochman noted the right wrist has
           limited range of motion, especially with dorsiflexion, due to
           the skin graft of the distal aspect of the remaining portion of
No. 13AP-463                                                                   13


           the right hand. While Dr. Hochman opined the Injured
           Worker has fairly well maintained range of motion in the
           right thumb, the Injured Worker testified that he is limited
           in what he can do with the thumb since the skin is on the
           bone, and his doctor has advised him to avoid use of the
           thumb to prevent infection. The Injured Worker also
           testified that before the accident at work, he had been a right
           handed individual, and now he is required to perform all
           personal hygiene and other manipulative tasks with his left
           hand. The Injured Worker testified that the only functional
           use he has of his right hand is to stabilize or balance items
           that are being carried with the left. It is not necessary for the
           Injured Worker's hand to be of absolutely no use in order to
           find the Injured Worker has lost the use of the hand for "all
           practical purposes." State ex rel. Alcoa Bldg. Prods. v. Indus.
           Comm., 102 St.3d 341, 343, 2004-Ohio-3166, 810 N.E.2d
           946.

           In the report from Dr. Hochman, dated 11/06/2012, Dr.
           Hochman reviewed the tasks the Injured Worker was
           required to perform in his job as a set up person for Ferrolux
           Metals, the Employer of record. Dr. Hochman detailed the
           necessity of using the right hand to operate a crank to open
           the slitter, and using both hands to move heavy pieces out of
           the slitter, to clean the slitter, to clean the tools, and to
           position the pieces in the slitter. Dr. Hochman indicated the
           pieces weighed up to sixty pounds each. Dr. Hochman wrote:

           Certainly, the patient is unable to return to that position of
           employment due to the significant right hand injury that
           occurred as a result of the January 9, 2012, work accident.
           That is within a reasonable degree of medical probability.
           * * * Certainly, the patient is unable to perform job duties
           because of the right hand injury and that is within a
           reasonable degree of medical probability. It remains my
           medical opinion that, for all intents and purposes, the
           patient has lost functional use of the right hand. The patient
           is unable to return to his previous position of employment.
           He has not reached maximum medical improvement.

           Additionally, the Commission notes the testimony of the
           Injured Worker which expanded on the tasks required in his
           former position of employment. Per the Injured Worker, he
           was required to remove and replace 23 pieces from the top of
           the slitter and 23 pieces from the bottom of the slitter in
           order to adjust the slitter to cut the metal to the required size
No. 13AP-463                                                                          14


              for each job. The tools used averaged 55 pounds each and
              would require the use of both hands to maneuver. When
              asked by the Commission what part of his former position of
              employment he could still perform with only one hand, the
              Injured Worker stated "nothing." The Commission
              specifically finds the Injured Worker's post-injury activities
              are severely compromised. State ex rel. Timmerman Truss,
              Inc. v. Indus. Comm., 102 Ohio St.3d 244, 2004-Ohio-2589,
              809 N.E.2d 15.

              Based on all the evidence cited above, it is the finding and
              order of the Commission that the Injured Worker has met
              his burden of proof, and that the disability the Injured
              Worker sustained as a result of his industrial injury on
              01/09/2012 exceeds the normal handicap or disability
              resulting from the loss of two or more fingers, pursuant to
              R.C. 4123.57 (B). The Commission finds the Injured Worker
              will not be able to return to work at his former position of
              employment. Therefore, it is the order of the Commission
              that the Injured Worker is granted 175 weeks compensation
              pursuant to R.C. 4123.57 (B), less the previously paid
              compensation under R.C. 4123.57 (B) in the amount of 100
              weeks.

(Emphasis sic.)
       {¶ 30} 18. On June 3, 2013, relator, Ferrolux Metals Co. of Ohio LLC, filed this
mandamus action.
Conclusions of Law:
       {¶ 31} Two issues are presented:       (1) whether, as relator suggests, an R.C.
4123.57(B) scheduled loss award is precluded until the industrial injury has reached
maximum medical improvement ("MMI"), and (2) did the commission use the incorrect
standard in determining that claimant has lost the use of his right hand under the "two
fingers plus" theory and awarding the full 175 weeks of compensation for the loss?
       {¶ 32} The magistrate finds: (1) the R.C. 4123.57(B) scheduled loss award is not
precluded by claimant's MMI status, and (2) the commission did not use the incorrect
standard in determining that claimant has lost the use of his right hand under the "two
fingers plus" theory and awarding the full 175 weeks of compensation for the loss.
       {¶ 33} Accordingly, as more fully explained below, it is the magistrate's decision
that this court deny relator's request for a writ of mandamus.
No. 13AP-463                                                                              15


                                         Basic Law
       {¶ 34} R.C. 4123.57(B) provides for so-called scheduled loss compensation.
Pertinent here, the statute provides for 175 weeks of compensation for the loss of a hand
and lesser weeks of compensation for loss of any of the five fingers of the hand.
       {¶ 35} For loss of the second finger (index finger) 35 weeks of compensation shall
be paid. For loss of the third finger (long finger) 30 weeks of compensation shall be paid.
For loss of the fourth finger (ring finger) 20 weeks of compensation shall be paid. For loss
of the fifth finger (little finger) 15 weeks of compensation shall be paid.
       {¶ 36} Thus, loss of all fingers except the thumb (first finger) entitles the claimant
to 100 weeks of compensation under the statute.
       {¶ 37} The statute provides for two theories under which compensation for loss of
a hand may be based: (1) the so-called "flat loss" theory, and (2) the so-called "two fingers
plus" theory. State ex rel. Timmerman Truss, Inc. v. Indus. Comm., 102 Ohio St.3d 244,
2004-Ohio-2589.
       {¶ 38} The "flat loss" theory is premised upon amputation loss or loss of use of the
fingers and parts of the hand. Id. at ¶ 24.
       {¶ 39} The "two fingers plus" theory is set forth in the following paragraph of R.C.
4123.57(B):
              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.

       {¶ 40} The only compensable loss of use under R.C. 4123.57(B) is a permanent and
total loss of use. State ex rel. Welker v. Indus. Comm., 91 Ohio St.3d 98 (2001). An
injured worker claiming a loss of use under R.C. 4123.57(B) has the burden of showing
that his loss of use is permanent. State ex rel. Carter v. Indus. Comm., 10th Dist. No.
09AP-30, 2009-Ohio-5547, citing Welker.
No. 13AP-463                                                                            16


      {¶ 41} Traditionally, court cases have determined the merits of a motion for
scheduled loss compensation under the "two fingers plus" theory by analyzing the impact
of the finger loss upon the claimant's residual ability to perform the duties of his former
position of employment.     Where a claimant's finger loss permanently prevents the
claimant from returning to his former position of employment, an award for loss of the
hand may be entered. State ex rel. Superior Forge & Steel Corp. v. Indus. Comm., 10th
Dist. No. 12AP-270, 2013-Ohio-2450. This is so even though the claimant returns to
another job that pays the same as his former position of employment and, thus, there is
no economic loss. Id.
      {¶ 42} In Timmerman Truss, a case heavily relied upon by relator, an SHO entered
an award for the loss of use of the right hand, placing reliance upon the reports of Drs.
Gibson and Bamberger. The employer filed in this court a mandamus action challenging
the award. This court issued a writ returning the cause to the commission for further
consideration under the "two fingers plus" theory.
      {¶ 43} On an appeal as of right, the Supreme Court of Ohio determined that the
reports of Drs. Gibson and Bamberger were seriously flawed.
      {¶ 44} The Supreme Court noted that the record contained numerous co-worker
statements that—while containing evidentiary deficiencies of their own—all attest to the
claimant Chad Wagner's resumption of his former position of employment and of other
demanding outdoor pursuits.
      {¶ 45} The Supreme court noted that, under State ex. rel. Schultz v. Indus. Comm.,
96 Ohio St.3d 27, 2002-Ohio-3316, medical evidence of disability or loss can be
impeached by evidence of actual work or other physical activity inconsistent with that
assessment.
      {¶ 46} Focusing upon Dr. Gibson's report, the Timmerman Truss court states:
              Unlike Dr. Bamberger's April 22, 2002 report, Dr. Gibson's
              report does set forth the findings underlying his opinion and
              appears to be more cognizant of the Walker loss standard.
              Gibson cites claimant's amputation and the fact that
              claimant has "Kerchner wires and ankylosis of other joints of
              the fingers, which, in effect, renders this hand as useless for
              functional purposes." He also notes neurosensory and
              neuromotor loss as well as the absence of thumb/index
No. 13AP-463                                                                        17


                finger opposition. With claimant's dexterity and functional
                capacity "near zero," Dr. Gibson concluded that there was a
                total loss of use.

                Under most circumstances, therefore, Dr. Gibson's report
                alone would support the commission's award. Here,
                however, Schultz demands that the medical assessment be
                viewed in the context of claimant's postrecovery physical and
                work activities. Id., 96 Ohio St.3d 27, 2002-Ohio-3316, 770
                N.E.2d 576, ¶ 64.

                For this reason, the cause must be returned for further
                consideration and an amended order. The commission has
                never addressed claimant's postrecovery activities or the
                reliability of the evidence describing these activities. This is
                crucial to further review. A return, moreover, will afford the
                commission the opportunity to address the possibility of
                total loss under the "two fingers plus" provision of R.C.
                4123.57(B) cited by the court of appeals.

Id. at ¶ 29-31.
                                     First Issue—MMI
       {¶ 47} MMI is a termination criteria for temporary total disability ("TTD")
compensation under R.C. 4123.56.
       {¶ 48} Ohio Adm.Code 4121-3-32(A)(1) currently provides:
                "Maximum medical improvement" is a treatment plateau
                (static or well-stabilized) at which no fundamental functional
                or physiological change can be expected within reasonable
                medical probability in spite of continuing medical or
                rehabilitative procedures. An injured worker may need
                supportive treatment to maintain this level of function.

       {¶ 49} In Vulcan Materials Co. v. Indus. Comm., 25 Ohio St.3d 31, 33 (1986), the
court states:
                We hold that in the consideration of the permanency of a
                disability, the commission need not determine whether the
                claimant could return to his former position of employment.
                The commission's designation of a disability as permanent
                relates solely to the perceived longevity of the condition at
                issue. It has absolutely no bearing upon the claimant's ability
                to perform the tasks involved in his former position of
                employment. Further, in Logsdon v. Indus. Comm. (1944),
No. 13AP-463                                                                           18


              143 Ohio St. 508, 57 N.E.2d 75 [28 O.O. 429], at paragraph
              two of the syllabus, this court defined the term "permanent"
              as applied to disability under the workmen's compensation
              law as a condition which will, "* * * with reasonable
              probability, continue for an indefinite period of time without
              any present indication of recovery therefrom."

       {¶ 50} The permanency concept defined in Vulcan is essentially identical to the
MMI concept defined in Ohio Adm.Code 4121-3-32(A)(1). See State ex rel. Matlack, Inc.
v. Indus. Comm., 73 Ohio App.3d 648 (10th Dist.1991).
       {¶ 51} In State ex rel. DaimlerChrysler Corp. v. Indus. Comm., 121 Ohio St.3d 341,
2009-Ohio-1219, a case cited by relator, the court reaffirmed the viability of Vulcan
notwithstanding dicta found in State ex rel. Advantage Tank Lines v. Indus. Comm., 107
Ohio St.3d 16, 2005-Ohio-5829.
       {¶ 52} Also reaffirmed by the DaimlerChrysler court was the explanation given in
State ex rel. Gen. Am. Transp. Corp. v. Indus. Comm., 48 Ohio St.3d 25 (1990), that "[a]
claimant's permanent inability to return to his former position of employment does not
mean the claimant's medical condition will not improve." DaimlerChrysler at ¶ 14,
quoting General American at 25.
       {¶ 53} Here, as earlier noted, relator suggests that an R.C. 4123.57(B) scheduled
loss award is precluded until the industrial injury has reached MMI.
       {¶ 54} According to relator, the award is "premature." (Relator's brief, 8.) Citing
Timmerman Truss, relator asserts that claimant "must no longer be in the recovery
phase" and that claimant was still in the "recovery phase" at the time the commission
entered the award. (Relator's brief, 9.)
       {¶ 55} Pointing to Dr. Hochman's July 31, 2012 opinion that claimant "has not
reached maximum medical improvement," relator asserts that "there is expected
improvement * * * which would impact his ability to return to his former position of
employment in any capacity." (Relator's brief, 12.) Relator concludes that the award is
"premature" because "there is no definite indication yet of what functions Mr. Mayes will
be able to perform." (Relator's brief, 12.)
       {¶ 56} Relator's arguments are unpersuasive.
No. 13AP-463                                                                             19


       {¶ 57} Analysis begins with the observation that the commission determined,
pursuant to R.C. 4123.57(B), that claimant's disability "exceeds the normal handicap or
disability resulting from the loss of two or more fingers" because claimant "will not be
able to return to work at his former position of employment."             In reaching this
determination, the commission relied upon Dr. Hochman's November 6, 2012 office note
in which Dr. Hochman reviewed in great detail the tasks involved in the set up of the
machine and concluded that claimant is "[c]ertainly * * * unable to return to that position
of employment due to the significant right hand injury."
       {¶ 58} It is reasonably clear that both Dr. Hochman and the commission concluded
that claimant's inability to return to his former position of employment is permanent, and
the medical evidence, especially from Dr. Hochman, and claimant's own testimony,
supports the conclusion that claimant will never be able to return to his former position of
employment regardless of any future medical treatments.
       {¶ 59} Relator's invocation of the MMI concept is inappropriate here. As well-
settled case law clearly indicates, the determination of MMI has absolutely no bearing
upon a claimant's ability to perform the tasks involved in his former position of
employment. Vulcan.
       {¶ 60} In short, the commission's determination that claimant will never be able to
return to his former position of employment is not at all inconsistent with claimant's
medical status as to MMI.
       {¶ 61} Relator here seems to misread Timmerman Truss. When the Timmerman
Truss court states that "[t]he commission has never addressed claimant's postrecovery
activities or the reliability of the evidence describing these activities," the court was
referring to the "numerous co-worker statements" in the record attesting to Chad
Wagner's resumption of his former position of employment and other demanding outdoor
pursuits. Id. ¶ 31, 26. That is, the commission failed to consider that evidence when it
determined to rely upon Dr. Gibson's report.
       {¶ 62} Here, relator endeavors to construe Timmerman Truss as requiring that
there be proof that claimant cannot significantly improve his medical status or cannot
improve his medical status at all. Clearly, Timmerman Truss does not support relator's
No. 13AP-463                                                                               20


position. Moreover, Timmerman Truss cannot be read to even suggest that the claimant
must be at MMI in order to receive a scheduled loss award.
         {¶ 63} Accordingly, the magistrate concludes that the R.C. 4123.57(B) scheduled
loss award is not precluded until the industrial injury has reached MMI.
                         Second Issue: Incorrect Standard?
         {¶ 64} Relator incorrectly concludes that the commission based its award only
upon the "two fingers plus" theory. Based upon this incorrect conclusion, relator argues
that the commission abused its discretion by applying the "flat loss" theory under the
standard set forth in State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 St.3d 341,
2004-Ohio-3166, to its determination that claimant's disability from his loss of fingers
exceeds the normal handicap or disability resulting from loss of fingers.
         {¶ 65} The magistrate acknowledges that the commission's order of January 8,
2013 is not a model of clarity as to the presentation of alternative bases or theories for the
award.
         {¶ 66} In State ex rel. Speelman v. Indus. Comm., 73 Ohio App.3d 757, 761 (10th
Dist.1992), this court states:
               It is not improper to state alternative grounds for supporting
               the order, but those grounds should not be merged together
               and should be explained separately so that a reviewing court
               can understand what has been done.

         {¶ 67} In the magistrate's view, the following portion of the commission's
January 8, 2013 order coherently presents the explanation for finding a flat loss award:
               [T]he reports from Todd S. Hochman, M.D., dated
               05/23/2012, 07/31/2012, and 11/06/2012, support the
               determination that medically, the Injured Worker's finger
               amputations result in the loss of functional use of the right
               hand. Dr. Hochman noted the right wrist has limited range
               of motion, especially with dorsiflexion, due to the skin graft
               of the distal aspect of the remaining portion of the right
               hand. While Dr. Hochman opined the Injured Worker has
               fairly well maintained range of motion in the right thumb,
               the Injured Worker testified that he is limited in what he can
               do with the thumb since the skin is on the bone, and his
               doctor has advised him to avoid use of the thumb to prevent
               infection. The Injured Worker also testified that before the
               accident at work, he had been a right handed individual, and
No. 13AP-463                                                                                21


              now he is required to perform all personal hygiene and other
              manipulative tasks with his left hand. The Injured Worker
              testified that the only functional use he has of his right hand
              is to stabilize or balance items that are being carried with the
              left. It is not necessary for the Injured Worker's hand to be of
              absolutely no use in order to find the Injured Worker has lost
              the use of the hand for "all practical purposes." State ex rel.
              Alcoa Bldg. Prods. v. Indus. Comm., 102 St.3d 341, 343,
              2004-Ohio-3166, 810 N.E.2d 946.

       {¶ 68} In the above-quoted portion of the order, the focus is how the injury
impacts claimant's activities of daily living such as "personal hygiene." The commission
notes claimant's hearing testimony that the only functional use of the right hand is to
stabilize or balance items that are being carried with the left.         The quoted portion
concludes with a reference to the Alcoa standard.
       {¶ 69} Thus, relator's argument that the commission used the incorrect standard in
determining a "two fingers plus" award lacks merit.
       {¶ 70} Relator also argues that the commission's order is flawed for its alleged
failure to explain why the full 175 weeks was awarded other than some number of weeks
between 100 and 175. This argument fails because there is clearly some evidence relied on
by the commission to support the full 175 weeks. See State ex rel. St. Marys Foundry Co.
v. Indus. Comm., 78 Ohio St.3d 521, 524 (1997) (VSSR assessments are sufficiently
explained when the commission grants an express award amount within the range
specified in the Ohio Constitution).
       {¶ 71} Based on the above analysis, the magistrate concludes that the commission
has not abused its discretion.
       {¶ 72} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.




                                           /S/ MAGISTRATE
                                           KENNETH W. MACKE
No. 13AP-463                                                                 22


                          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).
