[Cite as State ex rel. Broc N. Root v. Indus. Comm., 2017-Ohio-512.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Broc N. Root,                        :

                 Relator,                              :

v.                                                     :                  No. 15AP-1124

Industrial Commission of Ohio                          :               (REGULAR CALENDAR)
and
RS Resources, Inc.,                                    :

                 Respondents.                          :


                                            D E C I S I O N

                                    Rendered on February 14, 2017


                 On brief: Nager, Romaine & Schneiberg Co., LPA,
                 Jennifer L. Lawther and C. Bradley Howenstein, for relator.

                 On brief: Michael DeWine, Attorney General, and Eric J.
                 Tarbox, for respondent Industrial Commission of Ohio.


                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION


TYACK, P.J.

        {¶ 1} Broc N. Root filed this action in mandamus, seeking a writ to compel the
Industrial Commission of Ohio ("commission") to grant him an award for total loss of the
use of his left hand.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
the pertinent evidence and filed briefs.               The magistrate then issued a magistrate's
decision, appended hereto, which contains detailed findings of fact and conclusions of
No. 15AP-1124                                                                               2

law. The magistrate's decision includes a recommendation that we deny the request for a
writ.
        {¶ 3} Counsel for Root has filed objections to the magistrate's decision. Counsel
for the commission has filed a memorandum in response. The case is now before the
court for a full, independent review.
        {¶ 4} On March 19, 2012, Root's left hand got caught in a break press. His left
little finger was amputated at the distal phalanx. His left middle finger and left ring finger
were partially amputated. His workers' compensation claim has been recognized for:
              Amputation distal left fifth finger; partial amputation middle
              phalanx left fourth finger; partial amputation middle
              phalanx left third finger; open fracture middle phalanx left
              fourth finger; open fracture middle phalanx left third finger;
              open wound left third finger with tendon; open wound left
              fourth finger with tendon; digital nerve injury left third
              finger; digital nerve injury left fourth finger.

        {¶ 5} Counsel for Root filed a motion seeking an award for total loss of use of
Root's left hand. The award was initially allowed by a district hearing officer. The award
was overturned by a staff hearing officer following an appeal by Root's employer. The
commission refused a further appeal, leading to this action in mandamus.
        {¶ 6} Our magistrate's decision recommends affirming the findings of the
commission. Counsel for Root asserts three arguments in objecting to the magistrate's
decision:
              1. The Magistrate erred in finding that the commission
              performed the required legal analysis under R.C. 4123.57(B).

              2. The Magistrate erred in finding that the commission's
              order is compliant with Mitchell and Noll.

              3. The Magistrate erred in finding that the evidence relied
              upon by the commission does not constitute an abuse of
              discretion.

        {¶ 7} R.C. 4123.57(B) reads:

              Where two or more fingers have been amputated and the
              nature of the employee's work is such that the handicap or
              disability is greater than from the two fingers alone, the
              administrator can increase of the loss of use award beyond
No. 15AP-1124                                                                            3

              that for the fingers alone up to an award equal to the loss of
              the entire hand.

       {¶ 8} We note initially that none of Root's fingers were fully amputated. Parts of
three of Root's fingers were partially amputated. The index fingers and the thumb on the
left hand were not amputated, even in part. Medical evidence in the file indicates that the
thumb and index fingers retain feeling and retain the ability to exert pressure, allowing
items to be picked up by those digits.
       {¶ 9} One of the medical reports indicates that Root experiences pain any time he
uses his left hand. The report indicates that Root has suffered injury to some nerves and
tendons in the left hand. Counsel for Root asserts that the partial loss of three fingers
coupled with the nerve and tendon injury and further coupled with pain when the left
hand is used combines to make it impossible for Root to return to his former job as a
machine operator. Counsel then asserts that Root is entitled to a greater award, namely
an award for the loss of use of the entire left hand.
       {¶ 10} We note that R.C. 4123.57(B) does not impose a duty on the administrators
and hearing officers to grant an additional award up to an award for the use of the entire
hand in circumstances such as Root's circumstances. Thus, it is open to serious questions
whether or not we, as a court, can grant a writ of mandamus based upon
R.C. 4123.57(B) alone. Writs of mandamus are to compel a clear legal duty or to compel
compliance with a clear legal right. R.C. 4123.57(B) enables an additional award but does
not compel it. The use of the word can is important.
       {¶ 11} Root clearly retains a great deal of functional use of his left hand, as set
forth above and as set forth in the magistrate's decision.
       {¶ 12} We do not find fault with the detailed order of the staff hearing officer
denying a greater award. We also find no fault with our magistrate's analysis of the
medical and legal situation. We, therefore, overrule the objections to the magistrate's
decision. We adopt the findings of fact and conclusions of law in the magistrate's decision
and deny the request for a writ of mandamus.
                                                         Objections overruled; writ denied.

                            BROWN and DORRIAN, JJ., concur.
No. 15AP-1124                                                                              4

                                     APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel. Broc N. Root,               :

              Relator,                        :

v.                                            :                    No. 15AP-1124

Industrial Commission of Ohio                 :               (REGULAR CALENDAR)
and
RS Resources, Inc.,                           :

              Respondents.                    :



                          MAGISTRATE'S DECISION

                             Rendered on September 26, 2016



              Nager, Romaine & Schneiberg Co., LPA, Jerald A.
              Schneiberg and C. Bradley Howenstein, for relator.

              Michael DeWine, Attorney General, and Eric J. Tarbox, for
              respondent Industrial Commission of Ohio.


                                     IN MANDAMUS

       {¶ 13} Relator, Broc N. Root, 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 him an award for total loss of use of his
left hand, and ordering the commission to find that he is entitled to that award.
Findings of Fact:
       {¶ 14} 1. Relator sustained a work-related injury on March 19, 2012 when his left
hand was caught in a break press. The accident amputated his left little finger at the distal
No. 15AP-1124                                                                          5

phalanx, and partially amputated his middle and ring fingers. Surgery to reattach his
middle and ring fingers was unsuccessful.
      {¶ 15} 2. Relator's workers' compensation claim has been allowed for the
following conditions:
             Amputation distal left fifth finger; partial amputation middle
             phalanx left fourth finger; partial amputation middle
             phalanx left third finger; open fracture middle phalanx left
             fourth finger; open fracture middle phalanx left third finger;
             open wound left third finger with tendon; open wound left
             fourth finger with tendon; digital nerve injury left third
             finger; digital nerve injury left fourth finger.

      {¶ 16} 3. On May 25, 2012, two months after his work-related injury, relator filed
a C-86 motion requesting a total loss of use of his left hand. Relator did not submit any
specific medical evidence nor any medical reports in support of his motion. The only
documentation he included was an Ohio Bureau of Workers' Compensation ("BWC") form
C-230, which is an authorization to receive workers' compensation payment.
      {¶ 17} 4. An independent medical evaluation was performed by Robert L.
Kleinman, M.D.     In his June 21, 2012 report, Dr. Kleinman identified the allowed
conditions in relator's claim and noted that he is right hand dominant. Thereafter, Dr.
Kleinman provided his physical findings upon examination, stating:
             Examination of the left hand reveals amputations of the
             middle and ring fingers just proximal to the PIP joints and
             an amputation of the little finger just proximal to the nail
             through the distal phalanx.

             He is noted to have 1-cm atrophy in the left forearm
             compared to the right, but there are 2+ reflexes in the biceps,
             triceps and brachioradialis on the left side. There is full and
             complete range of motion and strength in the thumb and
             index finger. There is no atrophy of the thenar or hypothenar
             eminence. There is normal flexion, extension, radial
             deviation and ulnar deviation of the left wrist when
             comparing to the right side.

             The tips of the middle and ring fingers demonstrate healed
             incisions on the dorsal surface with some discoloration and
             swelling. There is tenderness on palpation over these distal
             tips, however, there is a partial sensory loss on the tips of
             these fingers. The MP joint passively of these fingers reveals
No. 15AP-1124                                                                         6

              flexion to 70 degrees in the middle finger and 80 degrees to
              the ring finger, however, actively he has only 40 degrees of
              active flexion. The little finger has a complete loss of
              sensation on the tip of the amputation and passively has full
              range of motion of the DIP, PIP and MP joints, however
              actively, he has full extension but limited flexion of all three
              joints.

       {¶ 18} In the discussion portion of his report, Dr. Kleinman stated:

              This injured worker has a claim that dates back three
              months. He had an attempt at a replantation of his middle
              and ring fingers, but unfortunately, he required amputations
              through the proximal phalanges. He has had some
              occupational therapy, however at this point, he is not in
              occupational therapy.

              It is my medical opinion based on a reasonable degree of
              medical probability that this injured worker's allowed
              conditions cannot be considered to have reached [maximum
              medical improvement]. It is my medical opinion that he
              would benefit from further therapy to maximize the use of
              his left hand.

       {¶ 19} In response to the question whether the allowed injury resulted in a total
permanent loss of use his left hand, Dr. Kleinman responded in the negative, further
stating:
              It is my medical opinion based on a reasonable degree of
              medical probability that there is insufficient objective
              medical evidence to support a total loss of use of the left
              hand.

              As noted in the physical examination section, he has a
              normal range of motion of the left wrist and has a completely
              normal range of motion and sensation of the thumb and the
              index finger. These findings by themselves, in my medical
              opinion, would not support a total loss of use of his left hand.
              The amputations of the ring and middle fingers would
              support an 85% loss of use of those fingers, and the
              amputation through the little finger would support a 20%
              impairment of the little finger.

              It is my medical opinion based on a reasonable degree of
              medical probability that this request for total lose of use is
              premature. He clearly has not reached MMI for the allowed
No. 15AP-1124                                                                              7

               conditions in this claim. It is my medical opinion based on a
               reasonable degree of medical probability that with time and
               further therapy, he will have some use of his left hand,
               although not the normal use of the left hand.

               Therefore, based on the physical exam findings of a normal
               range of motion of the wrist, thumb and index finger and the
               fact that the allowed conditions in this claim have not
               reached MMI, it is my medical opinion based on a
               reasonable degree of medical probability that there is
               insufficient objective medical evidence to support the request
               for a total loss of use of the left hand at this time.

       {¶ 20} 5. Relator was also examined by Oscar F. Sterle, M.D. In his August 9, 2012
report, Dr. Sterle identified the allowed conditions in relator's claim, discussed the injury
and treatment, and provided his physical findings upon examination. As Dr. Kleinman
found, Dr. Sterle found that relator had good motor strength of the flexors and extensors
of his left little, index fingers, and left thumb.
       {¶ 21} When asked to opine whether relator had sustained a total loss of use of his
left hand, Dr. Sterle opined that he had not, stating:
               Based on the medical history obtained from Mr. Root, the
               findings on my examination, and review of the medical
               records, in my medical opinion, in the context of evidence-
               based medicine, the claimant does not suffer from a total
               lose of use of the left hand as a result of the March 19, 2012
               work injury.

               The claimant sustained a loss of more than the middle and
               distal phalanges of the ring and middle fingers of the left
               hand, which are considered equal to the loss of the whole
               fingers. He also sustained loss of the fingernail with
               amputation of the distal third of the distal phalanx of the
               small finger.

               The loss of two fingers by amputation and the amputation
               sustained of the little finger are not considered total loss of
               use of the left hand to the same extent as if the body part had
               been amputated. The left hand has [a] certain degree of
               impairment but is functional.

       {¶ 22} 6. Relator's application was heard before a district hearing officer ("DHO")
on August 13, 2012. The DHO granted the request stating, in total:
No. 15AP-1124                                                                                8

              It is ordered that the C-86 Motion filed 05/25/2012 is
              granted to the extent of this order.

              This Injured Worker sustained injuries to the fingers on his
              left hand which resulted in the Bureau of Workers'
              Compensation paying for total loss of the left fourth and
              third fingers of his left hand. The Injured Worker received
              compensation under Ohio Revised Code Section 4123.57(B)
              for total loss of both fingers.

              It is ordered the Injured Worker shall be paid for total loss of
              the left hand in the amount of 175 weeks. This award shall be
              offset by previously paid compensation for each of the two
              fingers referred to above.

              This order is based on Ohio Revised Code Section 4123.57.

       {¶ 23} The DHO did not cite any medical evidence to support the granting of a
total loss of use award.
       {¶ 24} 7. The employer appealed and the matter was heard before a staff hearing
officer ("SHO") on September 19, 2012. The SHO vacated the prior DHO order and
denied relator's request for a total loss of use of his left hand finding that he had presented
insufficient evidence to substantiate the award. The SHO relied on the medical reports of
Drs. Kleinman and Sterle, stating:
              An award for the total loss of the left hand pursuant to Ohio
              Revised Code 4123.57(B) is denied. The Injured Worker has
              presented insufficient evidence to substantiate a total loss of
              use of the left hand.

              By order of the Administrator dated 04/13/2012 the Injured
              Worker was paid total amputation awards for the left middle
              and ring fingers. The medical evidence in file also
              substantiates the Injured Worker has suffered an amputation
              of the distal portion of the left fifth finger. However, the
              Injured Worker has presented no medical evidence which
              equates these losses to a total loss of the hand and has
              presented no vocational evidence which indicates the
              handicap or disability resulting from the loss of fingers
              exceeds the normal handicap or disability resulting from the
              loss of fingers to warrant a total loss of use of the hand.

       {¶ 25} In pertinent part Ohio Revised Code 4123.57(B) indicates:
No. 15AP-1124                                                                          9

             If the claimant has suffered the loss of two or more fingers by
             amputation or ankyloses 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 the fingers, exceeds the normal handicap or
             disability resulting from the loss of fingers, or the 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.

             The 06/21/2012 report of Robert Kleinman, M.D., and the
             08/09/2012 report of Oscar Sterle, M.D., both indicate the
             Injured Worker demonstrated full range of motion of the left
             wrist on examination. Both physicians also found the Injured
             Worker to have full range of motion and good strength in the
             left index finger and thumb. Both Dr. Kleinman and Dr.
             Sterle indicated the amputations sustained in this claim did
             not amount to a total loss of use of the left hand.

             No vocational evidence has been presented by the Injured
             Worker. The Injured Worker was previously referred to
             vocational rehabilitation and was not found to be feasible at
             that time. No functional capacity evaluation has been
             performed on the Injured Worker assessing the limitations
             of the left hand. The Injured Worker has not attempted a
             return to work in any capacity, has not sought employment,
             and has had no type of vocational retraining. There has been
             no assessment of the handicap or disability resulting from
             the loss of fingers sustained in this claim.

             The Injured Worker testified at hearing that he completed
             occupational therapy in August of 2012. He is still actively
             participating in physical therapy.

             Based on the foregoing, the Staff Hearing Officer finds the
             Injured Worker has presented insufficient evidence to
             substantiate a total loss of use of the left hand.

             All evidence was reviewed and considered.

      {¶ 26} 8. Relator's further appeal was refused by order of the commission mailed
October 11, 2012.
      {¶ 27} 9. Thereafter, relator filed the instant mandamus action in this court.
No. 15AP-1124                                                                              10

Conclusions of Law:
       {¶ 28} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 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).
       {¶ 31} R.C. 4123.57 pertains to schedule loss of use awards and provides, in
pertinent part:
              (B) In cases included in the following schedule the
              compensation payable per week to the employee is the
              statewide average weekly wage as defined in division (C) of
              section 4123.62 of the Revised Code per week and shall be
              paid in installments according to the following schedule:

              ***

              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
No. 15AP-1124                                                                                11

               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.

       {¶ 32} Relator argues that he presented sufficient evidence for an award under
R.C. 4123.57(B) asserting that, having suffered the loss of two or more fingers by
amputation, the nature of his employment at the time he was injured is such that the
disability resulting from the loss of fingers or loss of use of the fingers exceeds the normal
disability resulting from the loss of fingers or loss of use of the fingers. Relator argues that
the commission failed to take this fact into consideration and should have granted him
175 weeks of compensation for total loss of use of his left hand.
       {¶ 33} In support of this argument, relator directs the court's attention to the
reports of Drs. Kleinman and Sterle, as well as the March 20, 2012 operative report of
Thomas J. Reilly, M.D., and the April 4, 2012 operative report of Nina M. Njus, M.D.
Those four reports clearly established that relator's little finger on his left hand has been
amputated just proximal to the nail through the distal phalanx. More importantly, these
reports indicate that relator's ring and middle fingers have been amputated just proximal
to the pip joints. By definition, the injuries to relator's ring and middle fingers constitutes
a total loss of those two fingers.
       {¶ 34} While the medical evidence cited by relator clearly establishes that he has
sustained the loss of his ring and middle fingers, those reports do not, in and of
themselves, establish that this loss of two fingers results in a disability which exceeds the
normal disability resulting from such loss.
       {¶ 35} Relator argues that the commission abused its discretion by failing to
consider the impact of the amputation of two of his fingers on the job he was performing
at the time he was injured. Based on the evidence relator submitted, it is clear that he is a
right hand dominant individual and this injury involves his non-dominant, left hand. It is
also clear that relator was working on a break press at the time of his injury. There is no
additional evidence concerning the nature of relator's work.
       {¶ 36} Relator argues that the commission abused its discretion by placing an
evidentiary burden on him to present vocational evidence or evidence of his functional
No. 15AP-1124                                                                          12

capacities before granting the award. Relator argues that his participation in vocational
rehabilitation had been terminated based on his unfeasibility for such.
       {¶ 37} The burden of proof is always on the injured worker to establish that he or
she is entitled to an award of compensation. As such, relator was required not only to
present medical evidence that he had sustained the loss of use of two fingers, but also
evidence that this loss of two fingers created a disability which exceeds the normal
disability to be expected because of the nature of his employment. Having failed to
present any evidence of the nature of his employment, relator presented no evidence that
his loss of two fingers on his non-dominant hand affected his employment.
       {¶ 38} Relator argues that he was terminated from rehabilitation; however, there is
no documentation in the record terminating his rehabilitation which this court can
review. Although relator argues that he was released from vocational rehabilitation due to
his physical injuries, the commission points to two progress notes from Dr. Njus. In the
first, dated May 15, 2012, Dr. Njus noted that relator was having nightmares concerning
meat slicers.    Dr. Njus opined that relator was suffering from post-traumatic stress
disorder ("PTSD") and specifically refused to release him to return to work until he
received treatment for PTSD. Specifically, Dr. Njus' progress note provides:
                Referral to Job Eval/Voc rehab services as I do not believe he
                will be able to return to his previous employment place
                because of posttraumatic stress.

                No return to work for three months. I will not release him
                until the psychologist or psychiatrist taking care of him for
                posttraumatic stress states that it is okay for him to return to
                work.

       {¶ 39} In her July 5, 2012 progress note, Dr. Njus indicated that, from an
orthopedic standpoint, relator should be able to participate in vocational rehabilitation
but that, because of PTSD which has not been treated, he should not. Specifically, Dr.
Njus stated:
                From an orthopedic standpoint, his hand should be able to
                participate in Voc Rehab at this point in time. Currently he is
                not cleared because of posttraumatic stress by his
                psychologist who he has not seen for two months and has not
                treated him after making the diagnosis.
No. 15AP-1124                                                                                13

                I told Broc that he needs to get back in to see the
                psychologist and get started into a Voc Rehab Program by
                getting the psychologist to allow it. At that point we should
                be able to get him into some sort of additional strengthening
                if he needs it.

                Return for follow up in two months.

                No return to work for three months so we can get this
                squared away and get him into Voc Rehab.

         {¶ 40} Contrary to relator's statement that he was precluded from participating in
vocational rehabilitation from an orthopedic standpoint, the stipulation of evidence
provides otherwise.      In fact, Dr. Njus was of the opinion that, from an orthopedic
standpoint, relator should be able to participate in vocational rehabilitation.
         {¶ 41} As noted in the findings of fact, relator filed his motion for scheduled loss of
use on May 25, 2012, two months after the date of his injury. According to the report of
Dr. Kleinman who examined him on June 21, 2012, three months after the date of injury,
relator's allowed physical conditions had not yet reached maximum medical improvement
("MMI").      R.C. 4123.57 provides compensation for an injured workers' permanent
disability. At the time he filed his motion, relator had barely begun to recover. There is
no evidence in the record that relator had even begun any physical therapy for his allowed
conditions, which is completely separate from any vocational rehabilitation. While relator
had clearly suffered a loss of use of his ring and middle fingers, relator failed to present
any evidence concerning his ability to use his left hand and how the loss of these two
fingers affected his ability to perform the tasks associated with the job he was performing
at the time he was injured. Without such evidence, relator failed to meet his burden of
proof.
         {¶ 42} Relator contends that the commission's order violates the requirements of
State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991), arguing that the commission
did not explain the reasoning for its decision. As the SHO stated, relator presented
insufficient evidence concerning his ability to use his hand and failed to present evidence
that would establish how his ability to use his hand impacted his ability to perform his
job. The finding that relator failed to present sufficient evidence complies with the
No. 15AP-1124                                                                          14

requirements of Noll. There simply was no evidence in the record for the commission to
consider.
      {¶ 43} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied him a total loss of
use award for his left hand, and this court should deny his request for a writ of
mandamus.


                                            /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).
