[Cite as State ex rel. Wyrick v. Indus. Comm., 138 Ohio St.3d 465, 2014-Ohio-541.]




     THE STATE EX REL. WYRICK, APPELLANT, v. INDUSTRIAL COMMISSION
                              OF OHIO ET AL., APPELLEES.

       [Cite as State ex rel. Wyrick v. Indus. Comm., 138 Ohio St.3d 465,
                                     2014-Ohio-541.]
Workers’ compensation—Scheduled loss—R.C. 4123.57(B)—Loss of use of arm—
        Commission abused its discretion when it refused compensation for loss of
        use of arm based on internally inconsistent medical report.
   (No. 2012-1670—Submitted October 8, 2013—Decided February 19, 2014.)
      APPEAL from the Court of Appeals for Franklin County, No. 11AP-653,
                                     2012-Ohio-4127.
                                ____________________
        Per Curiam.
        {¶ 1} Charles G. Wyrick appeals the judgment of the court of appeals
denying his request for a writ of mandamus that would require appellee Industrial
Commission to award scheduled loss benefits for the loss of use of his left arm.
Wyrick argues that the commission abused its discretion when it relied on the
report of Dr. D. Ann Middaugh as evidence that Wyrick had retained some use of
his left arm to deny his request for benefits under R.C. 4123.57(B).
        {¶ 2} We agree that the commission abused its discretion when it relied
on the report of Dr. Middaugh. Consequently, we reverse the judgment of the
court of appeals.
        {¶ 3} On March 8, 2006, Wyrick was injured when he fell off
scaffolding while working as a carpenter for appellee Commercial Drywall
Systems, Inc. His workers’ compensation claim was allowed for a dislocated left
shoulder, a superficial injury to his left hand, cellulitis in his left fourth finger, a
torn left rotator cuff, and a herniated disc at C5-6.
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       {¶ 4} On February 3, 2010, Wyrick filed a motion requesting
compensation for the scheduled loss of use of his left upper extremity, supported
by the January 19, 2010 report of Dr. George D.J. Griffin III. Dr. Griffin reported
that Wyrick had no rotator cuff present and had lost the functional use of his left
upper extremity.
       {¶ 5} The commission submitted the report of Dr. D. Ann Middaugh,
who performed an independent medical examination of Wyrick. Dr. Middaugh
acknowledged that Wyrick has lost the use of his left rotator cuff, but she opined
that he “has significant remaining function of his left upper extremity including
no limitation in use of the forearm, wrist and hand so long as the elbow is
maintained at the waist level.” She stated that “the objective documentation and
physical examination does [sic] not support total permanent loss of use of the left
upper extremity to the degree that the involved body part is useless for all
purposes.”
       {¶ 6} A staff hearing officer denied Wyrick’s request for compensation.
The hearing officer relied on the report of Dr. Middaugh as some evidence that
Wyrick had not entirely lost the use of his left arm.
       {¶ 7} Wyrick filed a complaint for a writ of mandamus alleging that the
commission’s finding was a gross abuse of discretion. In his brief in support, he
alleged that Dr. Middaugh’s report could not constitute some evidence because
she had failed to use the proper legal standard when evaluating the loss of use of
his arm. Wyrick asked the court to issue a writ that would require the commission
to grant his application for the loss of use of the left upper extremity.
       {¶ 8} The court of appeals concluded that Dr. Middaugh had relied on
the appropriate legal standard when she evaluated the function in Wyrick’s left
arm. Thus, the court concluded that Dr. Middaugh’s report was some evidence
upon which the commission could rely to deny scheduled loss compensation and
denied the writ.




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       {¶ 9} This cause is now before the court on Wyrick’s appeal as of right.
       {¶ 10} R.C. 4123.57(B) provides a schedule of compensation payable to
an injured worker for the loss of a body part enumerated in the statute. There is
no provision in the statute for the loss of an “upper extremity”; thus, we consider
Wyrick’s request to be for the loss of his left arm. “Loss” within the meaning of
R.C. 4123.57(B) includes not only amputation, but also the loss of use of the
affected body part. State ex rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27,
2006-Ohio-6364, 857 N.E.2d 1203, at ¶ 13. The loss of use need not be absolute
if the claimant has “suffered the permanent loss of use of the injured bodily
member for all practical intents and purposes.” State ex rel. Alcoa Bldg. Prods. v.
Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, 810 N.E.2d 946, ¶ 12.
       {¶ 11} Wyrick argues that Dr. Middaugh’s report was flawed because the
doctor failed to use the proper legal standard and evaluate Wyrick’s loss for “all
practical purposes.” Thus, Wyrick maintains, Dr. Middaugh’s report could not
constitute some evidence upon which the commission could rely to deny his
request for scheduled loss benefits. See id.
       {¶ 12} We disagree with Wyrick’s assertion that Dr. Middaugh used an
improper legal standard. Nevertheless, we agree that her report cannot constitute
some evidence to support the commission’s decision because her conclusion that
Wyrick’s arm retains “significant remaining function” is inconsistent with the
findings of her physical examination and her observations.
       {¶ 13} In her report, Dr. Middaugh acknowledged that Wyrick was able to
use his left forearm and hand only if he holds his arm next to his body with the
elbow at waist level and that he was unable to lift his arm without assistance. Her
examination revealed that he holds his left arm with the elbow flexed and hand at
his waist level. Dr. Middaugh observed that Wyrick’s range of motion and ability
to function were severely limited due to the loss of his entire rotator cuff.




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       {¶ 14} We find that Dr. Middaugh’s findings are not consistent with her
ultimate conclusion.    She concluded that Wyrick had “significant remaining
function of his left upper extremity,” while finding at the same time that he was
able to use his hand, wrist, and forearm only if the elbow remains at waist level.
A report that is internally inconsistent cannot be some evidence supporting the
commission’s decision. State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445,
449, 633 N.E.2d 528 (1994). Consequently, Dr. Middaugh’s report cannot be
some evidence supporting the commission’s decision to deny an award for loss of
use and must be removed from consideration.
       {¶ 15} On the other hand, the January 19, 2010 report of Wyrick’s
treating physician, Dr. Griffin, stated that, for all practical purposes, Wyrick had
lost the function of his left arm. Because this is the only other report submitted
for consideration with his motion for a loss-of-use award, there is no reason to
return this matter to the commission for further consideration. Thus, pursuant to
State ex rel. Gay v. Mihm, 68 Ohio St.3d 315, 626 N.E.2d 666 (1994), we order
that Wyrick is entitled to an award for the scheduled loss of his left arm. State ex
rel. Franks v. Indus. Comm., 99 Ohio St.3d 35, 2003-Ohio-2456, 788 N.E.2d
1050, ¶ 28.
       {¶ 16} The judgment of the court of appeals is reversed.
                                                                Judgment reversed
                                                                  and writ granted.
       O’CONNOR, C.J., and PFEIFER, LANZINGER, and O’NEILL, JJ., concur.
       O’DONNELL, KENNEDY, and FRENCH, JJ., dissent.
                             ____________________
       O’DONNELL, J., dissenting.
       {¶ 17} Respectfully, I dissent.
       {¶ 18} The issue in this case is whether the Industrial Commission abused
its discretion in determining that Charles Wyrick is not entitled to a loss of use




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award for his left upper extremity and whether there is some evidence in the
record to support the commission’s decision. Because the commission did not
abuse its discretion and its decision is supported by evidence in the record, the
judgment of the court of appeals denying relief should be affirmed.
       {¶ 19} Mandamus will not lie to control the discretion vested in the
commission “as long as its discretion is exercised soundly and within legal
bounds. * * * Further, mandamus will not lie unless there has been a gross abuse
of discretion.” State ex rel. Goodyear Tire & Rubber Co. v. Indus. Comm., 38
Ohio St.2d 57, 62, 310 N.E.2d 240 (1974). In State ex rel. Avalon Precision
Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, 846 N.E.2d
1245, we stated:


               “The appropriate standard guiding our review is whether
       there is ‘some evidence’ in the record to support the commission’s
       decision. * * * If so, then the commission will not be deemed to
       have abused its discretion, and the granting of a writ of mandamus
       to correct an abuse of discretion is not warranted.” State ex rel.
       Secreto v. Indus. Comm. (1997), 80 Ohio St.3d 581, 582-583, 687
       N.E.2d 715. * * * “Where a commission order is adequately
       explained and based on some evidence, even evidence that may be
       persuasively contradicted by other evidence of record, the order
       will not be disturbed as manifesting an abuse of discretion.” [State
       ex rel. Mobley v. Indus. Comm., 78 Ohio St.3d 579, 584, 679
       N.E.2d 300 (1997).]


Id. at ¶ 9. See State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20-21,
508 N.E.2d 936 (1987) (“The commission alone shall be responsible for the




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evaluation of the weight and credibility of the evidence before it” [emphasis
added]).
       {¶ 20} In this case, the commission relied on the report of Dr. Ann
Middaugh and set forth reasons in its order that adequately explained its
determination that “for all practical purposes, [Wyrick] has not lost the use of his
left upper extremity to the same effect and extent as if it had been amputated or
otherwise physically removed.”        In her report, Dr. Middaugh documented
Wyrick’s medical history and set forth her review of his medical records and her
findings upon physical examination. Dr. Middaugh acknowledged that Wyrick’s
treating physician—Dr. George Griffin—reported that Wyrick “had essentially
lost the functional use of his left upper extremity.” She concluded, however,
based upon all the information available to her, that Wyrick “has significant
remaining function of his left upper extremity” and that the objective evidence did
not support the conclusion that his arm “is useless for all purposes.”
       {¶ 21} Wyrick urges that Dr. Middaugh based her opinion on an incorrect
legal standard when she failed to use the word “practical” to modify the word
“purposes” when stating that Wyrick’s upper left extremity was “not useless for
all purposes.” He asserts that this is not the standard we established in State ex
rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166,
810 N.E.2d 946, ¶ 12-13 (loss of use need not be absolute if the claimant has
“suffered the permanent loss of use of the injured bodily member for all practical
intents and purposes”). Wyrick urges that if Dr. Middaugh had used the correct
legal standard, she might have reached a different conclusion.
       {¶ 22} The court of appeals agreed with its magistrate’s conclusion that
“when read as a whole, Dr. Middaugh’s failure to use the word ‘practical’ does
not constitute use of an incorrect legal standard or misapplication of Alcoa.
‘ “Nothing in Alcoa suggests that the talismanic use of the phrase ‘for all practical
purposes’ is required in determining a loss of use claim.” ’ ˮ 2012-Ohio-4127,




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¶ 7, quoting State ex rel. Kish v. Kroger Co., 10th Dist. Franklin No. 10AP-882,
2011-Ohio-5766, ¶ 13, quoting State ex rel. Wheeling-Pittsburgh Steel Corp. v.
Indus. Comm., 10th Dist. Franklin No. 06AP-43, 2007-Ohio-757, ¶ 4.
       {¶ 23} And the majority here agrees with the appellate court that Dr.
Middaugh’s failure to use the word “practical” did not render her opinion flawed.
Majority opinion at ¶ 12. Nevertheless, it proceeds to reexamine and interpret Dr.
Middaugh’s findings as inconsistent with her ultimate opinion, concluding that
her report “cannot constitute some evidence to support the commission’s decision
because her conclusion that Wyrick’s arm retains ‘significant remaining function’
is inconsistent with the findings of her physical examination and her
observations.” Majority opinion at ¶ 12. The problem here is that the majority
essentially has reweighed the evidence and improperly substituted its findings for
that of the Industrial Commission in concluding that Dr. Middaugh’s report is
inconsistent.
       {¶ 24} Notwithstanding the majority’s view, Dr. Middaugh’s findings are
not inconsistent with her ultimate conclusion.       In her report, Dr. Middaugh
acknowledges “clear loss of use of the entire rotator cuff relative to the left
shoulder,” but concludes based on all the information available to her that Wyrick
“has significant remaining function of his left upper extremity” and that the
objective evidence did not support the conclusion that his arm is “useless for all
purposes.”
       {¶ 25} In this case, after evaluating the weight and credibility of the
evidence before it, the commission determined Dr. Middaugh’s opinion to be
persuasive and relied on it, and her report is some evidence that supports the
commission’s decision to deny compensation. Such a determination does not
constitute an abuse of discretion.
       {¶ 26} It is the exclusive responsibility of the commission to assess the
weight and credibility of the evidence, and our limited role in reviewing the



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commission’s order is to determine whether there is some evidence in the record
to support the commission’s stated basis for its decision. State ex rel. Burley, 31
Ohio St.3d at 20-21, 508 N.E.2d 936. If there is some evidence, we must defer to
the commission’s determination even if there is other evidence that supports a
decision contrary to that of the commission.        State ex rel. Pass v. C.S.T.
Extraction Co., 74 Ohio St.3d 373, 376, 658 N.E.2d 1055 (1996).
       {¶ 27} I believe that Dr. Middaugh relied on the appropriate legal
standard when rendering her medical opinion in this matter.          Furthermore, I
believe that her report constituted evidence that supported the commission’s
decision to deny compensation. Thus, the commission did not abuse its discretion
when it denied the request of Charles G. Wyrick for benefits for the loss of use of
his left arm. I would affirm the judgment of the court of appeals.
       KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
                             ____________________
       Butkovich & Crosthwaite Co., L.P.A., Joseph A. Butkovich, and Dana R.
Lambert, for appellant.
       Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant
Attorney General, for appellee Industrial Commission.
                          _________________________




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