[Cite as State ex rel. Cartnal v. Indus. Comm., 2013-Ohio-5297.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Roger J. Cartnal,                 :

                 Relator,                               :
                                                                      No. 12AP-963
v.                                                      :
                                                                   (REGULAR CALENDAR)
Industrial Commission of Ohio and                       :
Custom Personnel, Inc.,
                                                        :
                 Respondents.
                                                        :


                                         D E C I S I O N

                                    Rendered on December 3, 2013


                 Copp Law Offices, and Shawn M. Wollam, for relator.

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


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, J.
        {¶ 1} Relator, Roger J. Cartnal, commenced this original action, naming as
respondents the Industrial Commission of Ohio ("commission") and his former employer,
Custom Personnel, Inc. Relator requests a writ of mandamus ordering the commission to
vacate its order denying his motion for permanent partial disability compensation
pursuant to R.C. 4123.57(B), based on total loss of use of his right foot.
        {¶ 2} This court assigned the matter to a magistrate, pursuant to Civ.R. 53(D) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision,
which is appended hereto, which includes findings of fact and conclusions of law. The
magistrate recommended that we deny the requested writ of mandamus.
No. 12AP-963                                                                                 2


       {¶ 3} For the reasons that follow, we adopt as our own the magistrate's decision,
including the findings of fact and conclusions of law. Relator has not demonstrated that
he is entitled to a writ of mandamus ordering the commission to vacate its denial of his
motion for total-loss-of-use compensation.
I. The Facts
       {¶ 4} The magistrate correctly summarized the underlying facts and the
proceedings in the commission. See Magistrate's Findings of Fact, infra, at ¶ 26-42. In
short, in 2011, the commission allowed relator's worker's compensation claim for, e.g.,
right foot drop.     On March 1, 2012, relator filed a motion asking for additional
compensation, pursuant to R.C. 4123.57(B), for total loss of use of his right foot.
       {¶ 5} Ultimately, the commission received medical records from several doctors,
who described relator's ability to use his right foot. Two doctors reported a loss of
function of the foot but also reported that relator is able to walk and that his walking
improves when he uses a brace.
       {¶ 6} A district hearing officer ("DHO") first heard, and granted, relator's motion
for scheduled compensation for total loss of use his foot. A staff hearing officer ("SHO")
reviewed the evidence, including the reports of the physicians, and found that, "although
there are some things that can't be done with his foot, [relator] still retains the ability to
walk." (Sept. 21, 2012 order, 2.) At an August 29, 2012 hearing, the SHO observed relator
walk independently into and out of the hearing room. On that day, relator was using a soft
ankle brace. Consistent with precedent from this court established in State ex rel
Richardson v. Indus. Comm., 10th Dist. No. 04AP-724, 2005-Ohio-2388, the SHO
reversed the DHO and found that relator does not have a total loss of use of his foot as he
retains the ability to walk.
       {¶ 7}   The commission refused to hear further appeal of the SHO's order.
II. The Magistrate's Decision
       {¶ 8} The magistrate determined that "the commission did not abuse its
discretion when it determined that relator had not demonstrated a total loss of use of his
foot * * * [as] all the medical evidence indicates that relator is able to walk with the use of
[a] foot brace." (Magistrate's Decision, ¶ 61.)
No. 12AP-963                                                                             3


       {¶ 9} The magistrate acknowledged that the commission had allowed additional
right-foot conditions during the period between the DHO's order and the SHO's order.
She found, however, that the SHO's failure to list those newly allowed conditions, or
consider those conditions, while erroneous, did not preclude the commission from
refusing to award relator total-loss-of-use compensation. She concluded that, "[a]bsent
medical evidence from relator that the allowance of those new conditions now renders his
ability to use the [foot] brace impossible, relator has still failed to present evidence to
support a loss of use award." (Magistrate's Decision, ¶ 64.)
       {¶ 10} Accordingly, the magistrate recommended that this court deny relator's
request for a writ of mandamus.
III. Relator's Objections
       {¶ 11} Relator filed objections to the magistrate's decision, as follows:
              I. RELATOR OBJECTS TO THE MAGISTRATE'S DETER-
              MINATION THAT THE CAPACITY TO WALK IS A PER SE
              DISQUALIFICATION FROM A STATUTORY LOSS OF FOOT
              AWARD; WHILE AMBULATION IS AN IMPORTANT INDI-
              CIA OF RESIDUAL FUNCTIONAL CAPACITY TO BE
              WEIGHED BY AN OPINING PHYSICIAN, LESS THAN
              NORMAL AMBULATION COUPLED WITH OTHER SE-
              VERE FINDINGS AND LIMITATIONS MAY SUPPORT A
              LOSS OF USE FOR "ALL PRACTICAL INTENTS AND PUR-
              POSES".

              II. QUALIFICATION FOR A SCHEDULED LOSS DAMAGE
              AWARD IS NOT PREMISED ON "A CLAIMANT'S ABILITY
              TO WORK'' BUT, RATHER, ON THE ANATOMICAL "LOSS
              OF FUNCTION." RELATOR OBJECTS TO THE MAGI-
              STRATE'S CONTRARY CONCLUSION AT PAGE 10 OF HER
              DECISION.

              III. RELATOR OBJECTS TO THE MAGISTRATE'S
              CONCLUSION AT PAGES 10 & 11 THAT THE SHO'S
              FAILURE TO CONSIDER ALL ALLOWED CONDITIONS IS
              AN ABUSE OF DISCRETION WHICH "DOES NOT
              WARRANT THE GRANTING OF A WRIT OF MANDAMUS''
              AND THAT RELATOR COULD HAVE SOUGHT NEW
              MEDICAL [SIC] AND RECONSIDERATION FROM THE
              COMMISSION.

(Emphasis sic.)
No. 12AP-963                                                                                  4



IV. Analysis
       A. First Objection—Capacity to Walk
       {¶ 12} In his first objection, relator argues that the magistrate erred in finding that
his ability to walk using his right foot precluded a finding that he had not experienced
total loss of use of his foot.
       {¶ 13} The SHO relied on our decision in Richardson in finding that relator had
not provided evidence of a total loss of use of his right foot. As in this case, the claimant in
Richardson sought a scheduled loss award for total loss of use of one of his feet. The
claimant was, however, able to ambulate with the use of a foot-drop brace.
       {¶ 14} We observed in Richardson that the Supreme Court of Ohio has held that
the existence of "some residual utility" of a body part does not preclude total-loss-of-use
compensation. Id. at ¶ 3, citing State ex rel. Alcoa Building Prods. v. Indus. Comm., 102
Ohio St.3d 341, 2004-Ohio-3166. That holding was consistent with an earlier Supreme
Court holding that "scheduled loss awards under R.C. 4123.57(B) include situations where
the loss is 'to the same effect and extent as if [the body part] had been amputated or
otherwise physically removed.' " Richardson at ¶ 4, quoting State ex rel. Walker v. Indus.
Comm., 58 Ohio St.2d 402, 403 (1979). In Richardson, we observed that an examining
physician had determined Richardson's foot remained capable of bearing weight. We
found that a paramount use of a foot is to use it for walking.
       {¶ 15} In the case before us, both the SHO and the magistrate correctly applied
our precedent in Richardson.        Relator's arguments that Richardson was incorrectly
decided is not persuasive. See also State ex rel. Bushatz v. Indus. Comm., 10th Dist. No.
10AP-541, 2011-Ohio-2613 (denial of total-loss-of-use compensation held appropriate in
light of evidence that claimant was still able to bear weight on the foot and could walk,
albeit with a limp).
       {¶ 16} Relator points to the April 25, 2012 report of Ralph G. Rohner, M.D., who
had examined relator. Dr. Rohner answered "yes" to the question whether "the allowed
injury resulted in total, permanent loss of use, to such a degree that the affected body part
is useless for all practical purposes, that is, the body part though present is not capable of
performing most of the functions for which it commonly performs as a result of the
No. 12AP-963                                                                                   5

allowed conditions in this claim." However, that question did not reflect the standard
established in Richardson for determining whether total loss of use had been sustained.
That standard is, as follows: "[W]hen a claimant seeks a scheduled loss award, the proper
inquiry is whether, taking into account both medical findings and real functional capacity,
the body part for which the scheduled loss award is sought is, for all practical purposes,
unusable to the same extent as if it had been amputated or otherwise physically removed."
Richardson at ¶ 7. Relator has not demonstrated that he has suffered permanent loss of
use of his foot "for all practical intents and purposes," as that term was used in Alcoa and
Richardson, despite Dr. Rohner's medical opinion. Although relator clearly had suffered a
reduction in his ability to use his foot, he could still use his foot for one of its "paramount
purposes," i.e., using it to walk. Id. at ¶ 10. Furthermore, we note the SHO relied on the
reports of Robyn G. Stanko, M.D., and Teresa Kay Larsen, D.O., as well. Dr. Stanko
reported that relator stated not only that he can walk but also that he can drive a car. She
also observed that relator can ambulate independently and is able to do a sit-to-stand
transfer independently. Dr. Larsen also stated that relator is driving and successfully
wearing his AFO brace.
       {¶ 17} Accordingly, the commission did not abuse its discretion in finding that the
relator had not sustained a total loss of use of his right foot. Relator's first objection to the
magistrate's decision therefore lacks merit and is overruled.
       B. Second Objection—Ability to Work
       {¶ 18} In his second objection, relator contends that the magistrate erred in basing
her decision on the fact that relator retained an ability to work. He contends that the
magistrate improperly premised her decision on relator's ability to work, rather than on
the anatomical loss of function of his foot.
       {¶ 19} We have reviewed the magistrate's decision, however, and cannot find any
statements in it that supports relator's assertion that the magistrate's decision rests on
consideration of relator's ability to work. It is true that the magistrate stated that "[i]t is
the responsibility of the commission to determine disability, which is the effect that the
physical impairment has on a claimant's ability to work." (Magistrate's Decision, ¶ 60.)
However, the statement, in context, simply provided general background information
concerning the differing responsibilities of examining physicians, as opposed to the
No. 12AP-963                                                                              6

commission in worker's compensation disability cases. Immediately following the above-
quoted statement, the magistrate observed that "[t]o the extent that a doctor confuses the
term impairment with disability, it is understood that the medical provider has offered an
opinion as to impairment and not disability." (Magistrate's Decision, ¶ 60.) State ex rel.
Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987).
        {¶ 20} It is clear that the magistrate's decision, viewed in its totality, rests on
application of our precedent in Richardson. We reject relator's contention that the
magistrate determined this cause based on considerations relative to relator's ability to
work.
        {¶ 21} Relator's second objection to the magistrate's decision lacks merit and is
overruled.
        C. Third Objection—SHO's Failure to Consider All Allowed Conditions
        {¶ 22} Relator in his third objection argues that the commission abused its
discretion in not specifically addressing newly recognized allowed conditions, arguing that
it is the commission's statutory duty to consider all allowed conditions when making a
disability determination. However, while the magistrate correctly recognized the
commission's duty to list the newly allowed conditions, she also correctly determined that
relator still failed to present evidence to support a loss-of-use award.
        {¶ 23} Relator's third objection to the magistrate's decision lacks merit and is
overruled.
V. Conclusion
        {¶ 24} We have independently reviewed the record and overrule all three of
relator's objections. We adopt the magistrate's decision as our own, including the findings
of fact and conclusions of law contained therein. The commission did not abuse its
discretion in denying total-loss-of-use compensation. We therefore deny relator's request
that we issue a writ of mandamus.
                                                          Objections overruled; writ denied.
                             O'GRADY and T. BRYANT, JJ., concur.
              T. BRYANT, J., retired, of the Third Appellate District, as-
              signed to active duty under the authority of Ohio Constitution,
              Article IV, Section 6(C).
                                      _______________
No. 12AP-963                                                                                7


                                          APPENDIX

                           IN THE COURT OF APPEALS OF OHIO

                               TENTH APPELLATE DISTRICT

State of Ohio ex rel. Roger J. Cartnal,        :

                Relator,                       :
                                                                     No. 12AP-963
v.                                             :
                                                               (REGULAR CALENDAR)
Industrial Commission of Ohio and              :
Custom Personnel, Inc.,
                                               :
                Respondents.




                           MAGISTRATE'S DECISION

                                 Rendered on June 21, 2013


                Copp Law Offices, and Shawn M. Wollam, for relator.

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


                                       IN MANDAMUS

         {¶ 25} Relator, Roger J. Cartnal, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied his motion seeking a total loss of use
award for his right foot and ordering the commission to find that he is entitled to that
award.
Findings of Fact:
         {¶ 26} 1. Relator sustained a work-related injury on January 12, 2011 and his
workers' compensation claim was allowed for the following conditions:
No. 12AP-963                                                                             8

              Posterior dislocation right hip closed; fracture right femur;
              fracture right acetabulum closed; parieto-occipital left scalp
              laceration; contusion left parieto-occipital scalp; abrasion of
              bilateral lower leg; contusion bilateral lower leg; sciatic nerve
              neuropathy right; right foot drop.

       {¶ 27} 2. On March 1, 2012, relator filed a C-86 motion asking that he be granted a
total loss of use of his right foot pursuant to R.C. 4123.57(B). In support of his motion,
relator included the September 26, 2011 report of Teresa Kay Larsen, D.O., who provided
an independent evaluation. Dr. Larsen identified and discussed the medical records
which she reviewed as well as her physical findings upon examination and her
observations of relator's ability to walk. Specifically, Dr. Larsen noted:
              His gait without the AFO demonstrates a significant right
              foot drop, which is corrected with use of the AFO.

       {¶ 28} Thereafter, Dr. Larsen concluded that relator's conditions of right foot drop
and sciatic neuropathy had not yet reached maximum medical improvement ("MMI").
She did not offer an opinion as to his loss of use.
       {¶ 29} 3. Relator also included the February 14, 2012 report of Robyn G. Stanko,
M.D.    Dr. Stanko indicated that relator provided him with the following relevant
information concerning relator's abilities to use his right foot:
              Mr. Cartnal states he can drive a car. He states he can walk in
              a grocery store if he holds on to a cart. He states his walking
              tolerance is 15-20 minutes. * * * Mr. Cartnal states he does
              have a plastic AFO for his right foot, however it is
              uncomfortable and the arch portion of the AFO is irritating
              his foot.

Thereafter, with regard to his own observations, Dr. Stanko stated:
              He is able to ambulate independently and did wear a soft
              right ankle brace today. Balance is normal and he is able to
              do a sit-to-stand transfer independently. Without the brace
              he demonstrates a marked dropfoot and he has to
              compensate by lifting up his entire right leg so that his right
              foot clears the next step.

Dr. Stanko ultimately concluded that relator had reached MMI for all of the allowed
conditions in his claim, he could not return to his previous work activity, and
recommended the following concerning relator's right foot:
No. 12AP-963                                                                          9

               I feel Mr. Cartnal will always need a plastic AFO for the right
               foot on a permanent basis. He indicates that his current AFO
               is not fitting well and this AFO may need adjustment by an
               orthotist so that it properly fits his right foot.

Dr. Stanko did not offer an opinion as to relator's loss of use.
       {¶ 30} 4. Relator was examined by Ralph G. Rohner, Jr., M.D. In his April 25,
2012 report, Dr. Rohner identified the medical records which he reviewed and, upon
physical examination of relator, noted the following:
               He is ambulatory with a drop-foot brace and a markedly
               abnormal gait on the right.

Dr. Rohner was specifically asked the following question:
               In your medical opinion, has the allowed injury resulted in
               total, permanent loss of use, to such a degree that the
               affected body part is useless for all practical purposes, that is,
               the body part though present is not capable of performing
               most of the functions for which it commonly performs as a
               result of the allowed conditions in this claim? Be specific.

Dr. Rohner responded as follows:
               Yes. Although the foot is functional in terms of allowing him
               to ambulate, the degree of impairment prevents him from
               normal ambulation, climbing, crawling, stooping, squatting,
               running. This degree of impairment also quickly fatigues the
               rest of the leg.

       {¶ 31} 5. In an order mailed May 18, 2012, the Ohio Bureau of Workers'
Compensation ("BWC") referred relator's motion to the commission for consideration.
       {¶ 32} 6. Relator's motion was heard before a district hearing officer ("DHO") on
June 15, 2012. The DHO relied upon the report of Dr. Rohner and granted relator's
request for a total loss of use of his right foot as follows:
               The Injured Worker is awarded 150 weeks of compensation
               under R.C. 4123.57(B) for total loss of use of the right foot.
               This award is based upon Dr. Rohner's 04/25/2012 report
               wherein he stated that the Injured Worker's right foot
               impairment prevents him from normal ambulation,
               climbing, crawling, sto[o]ping, squatting and running. Dr.
               Rohner stated that for all practical purposes the right foot is
               useless.
No. 12AP-963                                                                              10

              The fact that the Injured Worker can briefly stand or briefly
              walk with his right foot is not found to prevent this award. As
              indicated because Dr. Rohner stated that the Injured Worker
              for all practical purposes cannot use this foot, that opinion is
              found sufficiently persuasive to grant this award.

              The start date for the award is 04/25/2012, the date of Dr.
              Rohner's report.

       {¶ 33} 7. Both the BWC and respondent Custom Personnel, Inc. appealed and a
hearing was held before a staff hearing officer ("SHO") on August 29, 2012. The SHO
vacated the prior DHO order and ultimately denied relator's request for total loss of use of
his right foot. First, the SHO observed the following:
              The Staff Hearing Officer finds that the foot is NOT useless
              for all practical purposes. The Staff Hearing Officer observed
              the Injured Worker walk into and out of the hearing room
              without the use of a cane or walker, without holding on to
              anything, and without any person physically assisting him.
              He walked at a normal pace, he did not move slowly. He was
              walking this day using a soft ankle brace. Normally he uses
              an AFO, ankle-foot orthosis, which is molded out of hard
              plastic.

(Emphasis sic.)
       {¶ 34} Thereafter, the SHO noted that neither Drs. Larsen nor Stanko, upon whose
reports relator's motion was based, gave an opinion as to his functional loss of use. As
such, the SHO noted that none of relator's evidence supported his motion.
       {¶ 35} Thereafter, the SHO discussed the report of Dr. Rohner, stating:
              The Injured Worker was then seen by Dr. Ralph Rohner on
              04/25/2012, who was asked as to whether the Injured
              Worker has total, permanent loss of use, to such a degree
              that the affected body part is useless for all practical
              purposes, that is, the body part though present is not capable
              of performing most of the functions for which it commonly
              performs. He responded, "Yes, although the foot is functional
              in terms of allowing him to ambulate, the degree of
              impairment prevents him from normal ambulation,
              climbing, crawling, stooping, squatting, running. The degree
              of impairment also quickly fatigues the rest of the leg."

       {¶ 36} Ultimately, the SHO concluded that, pursuant to relevant case law, relator
had not sustained a total loss of use of his right foot and denied the motion, stating:
No. 12AP-963                                                                             11

               The Staff Hearing Officer finds that although there are some
               things that can't be done with his foot, the Injured Worker
               still retains the ability to walk which the Staff Hearing
               Officer would find is the main function of the foot. In
               Richardson v. Industrial Commission., NO. 04AP-724, 10th
               DIST. (2005), it was stated "The court cannot imagine a
               more paramount use for a foot than the activity of walking".
               In that case, the court upheld the Commission's denial of a
               total loss of use when the Injured Worker could walk with
               the aid of a brace.

               The Staff Hearing Officer finds that all of the physician
               reports agree that the Injured Worker is able to walk with the
               use of his AFO brace. This order relies upon the reports of
               Drs. Larsen, Stanko, and Rohner to support this decision.
               Since those reports all show that the Injured Worker is able
               to walk with a brace they support this decision that the
               Injured Worker does NOT have a total loss of use of the foot.

(Emphasis sic.)
       {¶ 37} 8. In an order mailed October 17, 2012, relator's appeal was refused.
       {¶ 38} 9. In between the time that the DHO granted claimant's motion and the
SHO denied his motion, relator filed a motion asking that his workers' compensation
claim be allowed for the following additional conditions:
               Deformity Ankle [and] Foot Other A[c]quired.
               Plantar flexion contracture[.]

       {¶ 39} 10. In support of his motion, relator filed office notes from his treating
physician Robert A. Martin, M.D. Although those office notes do discuss new complaints
relator was experiencing concerning his right foot, none of those office notes addressed
the issue of loss of use.
       {¶ 40} 11. In an order mailed July 31, 2012, the BWC granted relator's motion and
additionally allowed his claim for the following conditions:
               Deformity Ankle/Foot Other Acquired
               Plantar Flexion Contracture

       {¶ 41} 12. The BWC order was specifically based on Dr. Martin's June 29, 2012
office note.
       {¶ 42} 13. Thereafter, relator filed the instant mandamus action in this court.
No. 12AP-963                                                                               12

Conclusions of Law:
       {¶ 43} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 44} 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).
       {¶ 45} In order to qualify for a loss of use award, relator was required to present
medical evidence demonstrating that, for all intents and purposes, he had lost the use of
his left upper extremity. State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d
341, 2004-Ohio-3166.
       {¶ 46} In Alcoa, at ¶ 10, the court set forth the historical development of scheduled
awards for loss of use under R.C. 4123.57(B) as follows:
              Scheduled awards pursuant to R.C. 4123.57(B) compensate
              for the "loss" of a body member and were originally confined
              to amputations, with the obvious exceptions of hearing and
              sight. In the 1970s, two cases—State ex rel. Gassmann v.
              Indus. Comm. (1975), 41 Ohio St.2d 64, 70 O.O.2d 157, 322
              N.E.2d 660, and State ex rel. Walker v. Indus. Comm.
              (1979), 58 Ohio St.2d 402, 12 O.O.3d 347, 390 N.E.2d 1190—
              construed "loss," as similarly used in R.C. 4123.58, to include
              loss of use without severance. Gassmann and Walker both
              involved paraplegics. In sustaining each of their scheduled
              loss awards, we reasoned that "[f]or all practical purposes,
              relator has lost his legs to the same effect and extent as if
              they had been amputated or otherwise physically removed."
              Gassmann, 41 Ohio St.2d at 67, 70 O.O.2d 157, 322 N.E.2d
              660; Walker, 58 Ohio St.2d at 403-404, 12 O.O.3d 347, 390
              N.E.2d 1190.

       {¶ 47} In Alcoa, the claimant, Robert R. Cox, sustained a left arm amputation just
below his elbow. Due to continuing hypersensitivity at the amputation site, Cox was
prevented from ever wearing a prosthesis. Consequently, Cox filed a motion seeking a
scheduled loss of use award for the loss of use of his left arm.
No. 12AP-963                                                                              13


       {¶ 48} Through videotape evidence, Alcoa established that Cox could use his
remaining left arm to push open a car door and to tuck paper under his arm. In spite of
this evidence, the commission granted Cox an award for the loss of use of his left arm.
       {¶ 49} Alcoa filed a mandamus action which this court denied. Alcoa appealed as
of right to the Supreme Court of Ohio.
       {¶ 50} Affirming this court's judgment and upholding the commission's award, the
Supreme Court explained, at ¶ 10-15:
              Alcoa urges the most literal interpretation of this rationale
              and argues that because claimant's arm possesses some
              residual utility, the standard has not been met. The court of
              appeals, on the other hand, focused on the opening four
              words, "for all practical purposes." Using this interpretation,
              the court of appeals found that some evidence supported the
              commission's award and upheld it. For the reasons to follow,
              we affirm that judgment.

              Alcoa's interpretation is unworkable because it is impossible
              to satisfy. Walker and Gassmann are unequivocal in their
              desire to extend scheduled loss benefits beyond amputation,
              yet under Alcoa's interpretation, neither of those claimants
              would have prevailed. As the court of appeals observed, the
              ability to use lifeless legs as a lap upon which to rest a book is
              a function unavailable to one who has had both legs
              removed, and under an absolute equivalency standard would
              preclude an award. And this will always be the case in a
              nonseverance situation. If nothing else, the presence of an
              otherwise useless limb still acts as a counterweight—and
              hence an aid to balance—that an amputee lacks. Alcoa's
              interpretation would foreclose benefits to the claimant who
              can raise a mangled arm sufficiently to gesture or point. It
              would preclude an award to someone with the hand strength
              to hold a pack of cards or a can of soda, and it would bar—as
              here—scheduled loss compensation to one with a limb
              segment of sufficient length to push a car door or tuck a
              newspaper. Surely, this could not have been the intent of the
              General Assembly in promulgating R.C. 4123.57(B) or of
              Gassmann and Walker.

              Pennsylvania defines "loss of use" much as the court of
              appeals did in the present case, and the observations of its
              judiciary assist us here. In that state, a scheduled loss award
              requires the claimant to demonstrate either that the specific
              bodily member was amputated or that the claimant suffered
No. 12AP-963                                                                             14

              the permanent loss of use of the injured bodily member for
              all practical intents and purposes. Discussing that standard,
              one court has written:

              "Generally, the 'all practical intents and purpose' test
              requires a more crippling injury than the 'industrial use' test
              in order to bring the case under section 306(c), supra.
              However, it is not necessary that the injured member of the
              claimant be of absolutely no use in order for him to have lost
              the use of it for all practical intents and purposes." Curran v.
              Walter E. Knipe & Sons, Inc. (1958), 185 Pa.Super. 540, 547,
              138 A.2d 251.

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

              "It is my belief that given the claimant's residual hyper-
              sensitivity, pain, and tenderness about his left distal forearm,
              that he is unable to use his left upper limb at all and he
              should be awarded for the loss of use of the entire left upper
              limb given his symptoms. He has been given in the past loss
              of use of the hand, but really he is unable to use a prosthesis
              since he has had the amputation, so virtually he is without
              the use of his left upper limb * * *."

        {¶ 51} In the present case, the SHO cited this court's decision in State ex rel.
Richardson v. Indus. Comm., 10th Dist. No. 04AP-724, 2005-Ohio-2388, and found that
relator had not demonstrated that he had sustained a total loss of use of his right foot
because all the medical evidence submitted demonstrated that relator was still able to
walk.
        {¶ 52} Relator contends that this court misapplied the standard from Alcoa and
asserts that, under the "all practical intents and purposes test," it is possible to
demonstrate a total loss of use while still retaining some ability to walk. Relator contends
that this court is, in essence, applying an "absolute equivalency" test which was
specifically rejected in Alcoa. For the reasons that follow, the magistrate disagrees.
        {¶ 53} In Richardson, this court applied Alcoa to a claim seeking a loss of use
award for the claimant's left foot. This court concluded that "the proper inquiry is
whether, taking into account both medical findings and real functional capacity, the body
No. 12AP-963                                                                               15

part for which the scheduled loss award is sought is, for all practical purposes, unusable to
the same extent as if it had been amputated or otherwise physically removed."
Richardson at ¶ 7.
       {¶ 54} The claimant in Richardson suffered chronic pain, numbness, weakness,
and lack of flexion in his left foot, along with a significant limp, but was able to walk with
the help of a brace. Id. at ¶ 8-9. This court noted that it could not "imagine a more
paramount use for a foot than the activity of walking." Id. ¶ 10.
       {¶ 55} This court re-examined the issue in State ex rel. Bushatz v. Indus. Comm.,
10th Dist. No. 10AP-541, 2011-Ohio-2613. In that case, the Ronald Bushatz's claim was
allowed for left drop foot and he filed a motion seeking a total loss of use award. Dr.
Renneker opined that Bushatz was entitled to an award of total loss of use of his left ankle
and foot due to the following:
               (1) [N]o volitional motion is noted at left ankle, left great toe,
               nor left 4 small toes (2) absent pin prick sensation distal to
               left ankle i.e. throughout entire left foot, and (3) absent left
               ankle deep tendon reflex.

Id. at ¶ 10.
       {¶ 56} The record also included evidence that Bushatz was able to walk provided
that he wore a foot-drop brace. Ultimately, because the Bushatz retained the ability to
walk with the brace, the commission concluded that he had not sustained a total loss of
use of his left foot.
       {¶ 57} Bushatz filed a mandamus action in this court; however, this court upheld
the commission's decision.
       {¶ 58} More recently, in State ex rel. Richardson v. Indus. Comm., 10th Dist. No.
11AP-678, 2012-Ohio-5660, Pamela Richardson sustained a work-related injury and her
claim was allowed for left foot drop. Richardson filed an application seeking a total loss of
use award submitting medical evidence indicating that she could not walk on her left foot
without the use of her custom brace. This court found that the commission did not abuse
its discretion when it denied her a total loss of use award after finding that the
commission had properly applied the standard from Alcoa.
       {¶ 59} The same situation is present here as was present in the aforementioned
cases. All the medical reports in the record, as well as the SHO's own observations,
No. 12AP-963                                                                              16

indicate that relator retains the ability to walk with the use of the foot brace. While Dr.
Rohner did opine that, in his opinion, relator should be granted a total loss of use award,
Dr. Rohner also indicated that relator retained the ability to walk with the foot brace.
Similarly, Dr. Renneker had opined that Bushatz was entitled to a total loss of use award
despite the fact that he was able to walk with the foot brace. Both Drs. Rohner and
Renneker noted their physical findings and further, noted that their patients could walk
with the aid of a foot brace. Both doctors concluded that, in their opinions, despite their
patients' ability to walk, they had sustained a total loss of use.        In both cases, the
commission determined that a total loss of use award was not in order.
       {¶ 60} It is the responsibility of doctors to determine impairment which is the loss
of function. It is the responsibility of the commission to determine disability, which is the
effect that the physical impairment has on a claimant's ability to work. To the extent that
a doctor confuses the term impairment with disability, it is understood that the medical
provider has offered an opinion as to impairment and not disability.            State ex rel.
Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987).
       {¶ 61} The magistrate finds that the commission did not abuse its discretion when
it determined that relator had not demonstrated a total loss of use of his foot. The
commission applied the proper standard and, where all the medical evidence indicates
that relator is able to walk with the use of the foot brace, relator has not demonstrated a
total loss of use of the foot.
       {¶ 62} Relator also contends that, once his claim was allowed for new conditions,
the commission should have reviewed that evidence and, if the commission would have
done so, then the commission would have granted a total loss of use award. For the
reasons that follow, the magistrate disagrees.
       {¶ 63} Following the hearing before the DHO, relator's claim was allowed for
additional right foot conditions.     Relator contends that the commission abused its
discretion when the SHO did not list those newly allowed conditions and did not consider
the effect those conditions had on his application for a total loss of use award.
       {¶ 64} On the one hand, relator is correct to argue that the commission should
have listed the newly allowed conditions in its order and its failure to do so constitutes an
abuse of discretion.        However, despite relator's arguments to the contrary, the
No. 12AP-963                                                                                17

commission's failure to do so does not warrant the granting of a writ of mandamus
compelling the commission to grant him a loss of use award. While relator continues to
argue that the commission and this court have applied an incorrect standard in
determining loss of use in these foot drop cases, relator is simply incorrect. Further, as
explained previously, Dr. Rohner's report does not support a total loss of use award
because Dr. Rohner specifically indicated that relator was able to use his foot to walk with
the aid of the foot brace. As the SHO stated, relator failed to present sufficient evidence
that he had sustained a total loss of use of his right foot. The fact that his claim was
allowed for additional conditions did not change the state of the evidence before the
commission. Absent medical evidence from relator that the allowance of those new
conditions now renders his ability to use the brace impossible, relator has still failed to
present evidence to support a loss of use award.
       {¶ 65} Further, relator could have requested that the commission send him for a
new medical examination after his claim was allowed for new conditions. Relator did not
do so. Likewise, relator could have sought reconsideration on grounds that the SHO did
not properly consider all the allowed conditions. Pursuant to State ex rel. Quarto Mining
Co. v. Foreman, 79 Ohio St.3d 78 (1997), relator cannot raise an argument here that he
failed to raise administratively. And again, the record still lacks any evidence that relator's
allowed conditions prevent him from walking.
       {¶ 66} Based on the foregoing, while the magistrate does find that the commission
abused its discretion by not listing the newly allowed conditions in the commission's
order, the commission, nevertheless, did not abuse its discretion when it denied relator's
motion seeking a loss of use award because the medical evidence in the record does not
support such a finding. As such, this court should deny relator's request for a writ of
mandamus.




                                           /S/ MAGISTRATE
                                           STEPHANIE BISCA BROOKS
No. 12AP-963                                                                 18

                          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).
