[Cite as State ex rel. Eaken v. Ohio Dept. of Natural Resources, 2014-Ohio-5662.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio ex rel. Robert Eaken,                    :

                 Relator,                              :
                                                                           No. 13AP-797
v.                                                     :
                                                                  (REGULAR CALENDAR)
Department of Natural Resources and                    :
Industrial Commission of Ohio,
                                                       :
                 Respondents.
                                                       :




                                         D E C I S I O N

                                   Rendered on December 23, 2014


                 The Mikulka Law Firm, LLC, and Angela J. Mikulka, for
                 relator.

                 Michael DeWine, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.

                 Isaac, Wiles, Burkholder & Teetor, LLC, and J. Miles Gibson,
                 for respondent Department of Natural Resources.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION


LUPER SCHUSTER, J.
        {¶ 1} Relator, Robert Eaken, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its October 18, 2012 order exercising continuing jurisdiction of
No. 13AP-797                                                                              2


the June 28, 2012 staff hearing officer ("SHO") order granting relator scheduled loss
compensation for the loss of use of his right arm, and to reinstate the June 28, 2012 order.
       {¶ 2} The court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended
decision, including findings of fact and conclusions of law, and recommended that this
court deny relator's request for a writ of mandamus.
       {¶ 3} As the magistrate sets out more fully, on February 5, 2008, relator injured
his right shoulder and spine while trying to catch a falling battery when he was employed
as a mechanic for respondent, Ohio Department of Natural Resources ("employer").
Industrial claim No. 08-809835 allowed the following conditions: cervical sprain/strain,
thoracic strain/sprain, right shoulder strain/sprain, herniated disc C5-6, cervical spinal
stenosis C5-6, and tear right supraspinatus. Relator underwent neck surgery on May 21,
2009. On November 11, 2011, relator moved for scheduled loss compensation under R.C.
4123.57(B) for the alleged loss of use of his right arm. At the request of the Ohio Bureau
of Workers' Compensation ("bureau"), relator underwent an independent medical
examination performed by Dr. Arvin Gallanosa. In his narrative report, Dr. Gallanosa
noted that relator "does have total permanent loss of use of the right upper limb," but Dr.
Gallanosa further noted "it is unclear whether this is due to his allowed conditions of
herniated disc and cervical stenosis."
       {¶ 4} On March 8, 2012, a district hearing officer ("DHO") issued an order
denying relator's motion for scheduled loss compensation. Relator appealed, and the
bureau requested he undergo an examination by Dr. Stephanie Kopey to determine
whether relator was temporarily totally disabled from January 27, 2012 to approximately
May 18, 2012. In her report from the March 22, 2012 examination, Dr. Kopey determined
relator is temporarily totally disabled as a result of the work-related accident and allowed
condition of C5-6 herniated disc.        Relator then underwent an examination by Dr.
Matthew D. McDaniel on April 18, 2012, who concluded "the medical evidence does not
support that [relator] sustained a total loss of use of the right arm secondary to the
allowed conditions."
       {¶ 5} On June 28, 2012, the SHO issued an order vacating the DHO's March 8,
2012 order and granting relator's motion for R.C. 4123.57(B) compensation.              The
employer administratively appealed the SHO's order, and that appeal was refused by
No. 13AP-797                                                                               3


another SHO in an order mailed July 26, 2012. The employer moved for reconsideration
on August 9, 2012, alleging the SHO's June 28, 2012 order contained clear mistakes of law
and fact. A hearing occurred October 8, 2012. Subsequently, on December 15, 2012, the
three-member commission mailed an order exercising continuing jurisdiction over the
SHO's June 28, 2012 order and denied relator's motion for R.C. 4123.57(B) scheduled loss
compensation on the basis that the employer met its burden of proving that the SHO's
order contains a clear mistake of law. This mandamus action followed, and the magistrate
agreed the SHO's order contained a clear mistake of law.
I.     Relator's Objections
       {¶ 6} Relator sets forth the following objections to the magistrate's decision:

               [I.] The Magistrate mis-characterized the SHO's use of the
               Arvin Gallanosa, M.D., report;

               [II.] The Magistrate misunderstood the import of the report
               of [Stephanie] Kopey, D.O.;

               [III.] The Magistrate improperly weighed the evidence,
               which remained the sole province of the SHO; and

               [IV.] The Magistrate failed to identify a legitimate clear
               mistake of law which would have vested continuing
               jurisdiction in the Industrial Commission.

II.    Discussion
A. First Objection—Dr. Gallanosa's Report
       {¶ 7} In his first objection, relator contends the magistrate mischaracterized the
SHO's use of Dr. Gallanosa's report. We disagree. As the magistrate explained, "[w]hile
Dr. Gallanosa determined from his examination that relator 'does suffer the total
functional loss of use of the right arm,' he also found that 'he is unable to causally relate
this loss of use to allowed conditions in this claim.' "
       {¶ 8} In order to establish a right to a workers' compensation benefit for harm
resulting from an accidental injury, it is necessary for the claimant to show, by a
preponderance of the evidence, that a causal relationship existed between his injury and
the harm. Fox v. Indus. Comm., 162 Ohio St. 569 (1955), paragraph one of the syllabus.
As the magistrate concluded, Dr. Gallanosa's report cannot be used to support a grant of
loss of use compensation. Dr. Gallanosa's report explicitly stated he could not find a
No. 13AP-797                                                                                 4


causal relationship between the loss of use and the allowed conditions. Thus, it was a
mistake of law for the SHO to rely on Dr. Gallanosa's report to establish a causal
relationship for the loss of use. Relator's first objection is overruled.
B. Second Objection—Dr. Kopey's Report
       {¶ 9} In his second objection, relator argues that the magistrate misunderstood
the import of the report of Dr. Kopey. Dr. Kopey did not render an opinion as to total
functional loss of use of the right arm. As the magistrate explained, Dr. Kopey examined
relator to determine whether relator was temporarily totally disabled. The standard for
determining temporary total disability is whether the claimant is unable to return to his
former position of employment due to the industrial injury. Dr. Kopey determined the
medical documentation supported relator was temporarily totally disabled and that the
period of disability was related to the allowed condition of C5-6 herniated disc. However,
at no point did Dr. Kopey render an opinion as to whether relator suffered loss of use
under R.C. 4123.57(B) or whether the alleged loss of use was causally related to the
allowed conditions. R.C. 4123.56 (temporary total disability compensation) and R.C.
4123.57(B) (scheduled loss compensation) depend on two distinct inquiries, and Dr.
Kopey's report did not contain information sufficient to determine whether R.C.
4123.57(B) compensation was warranted.            We, therefore, overrule relator's second
objection.
C.     Third and Fourth Objections—Continuing Jurisdiction and Weighing
       the Evidence

       {¶ 10} Relator's third and fourth objections are interrelated and we address them
together. Relator's third objection alleges the magistrate weighed the evidence, which
remained the sole province of the SHO, and relator's fourth objection alleges the
magistrate failed to identify a legitimate clear mistake of law which would have vested
jurisdiction in the commission.
       {¶ 11} Continuing jurisdiction is not unlimited and "can be invoked only where
one of these preconditions exist: (1) new and changed circumstances, (2) fraud, (3) clear
mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal." State ex rel.
Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, ¶ 14, citing State ex rel.
Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998).
No. 13AP-797                                                                             5


       {¶ 12} The commission stated that the SHO order contained a clear mistake of law.
The commission specifies that the error was relying on a report in which Dr. Gallanosa
clearly stated that he could not conclude that the stated loss was due to the allowed
condition, and we agree. The commission's failure to address Dr. Kopey or the remaining
doctors' reports does not remove the jurisdiction of the commission because none of the
other doctors concluded that one or more allowed conditions proximately caused the loss
of use of the right arm as required for R.C. 4123.57(B) scheduled loss compensation.
Accordingly, the other doctors' opinions would not support the SHO's decision to grant
loss of use of the right arm caused by allowed conditions in his claim.         Thus, the
magistrate did not improperly weigh the evidence; instead, he explained why the SHO's
reliance on that evidence supported the commission's finding a clear mistake of law.
Therefore, we overrule relator's third and fourth objections.
III.   Conclusion
       {¶ 13} After an examination of the magistrate's decision, an independent review of
the record, and due consideration of relator's objections, we overrule relator's objections
and adopt the magistrate's findings of fact and conclusions of law. Accordingly, we deny
relator's request for a writ of mandamus.

                                        Objections overruled; writ of mandamus denied.


                            TYACK and BROWN, JJ., concur.

                               ___________________



                                      APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


State of Ohio ex rel. Robert Eaken,           :

               Relator,                       :                    No. 13AP-797

v.                                            :                 (REGULAR CALENDAR)
No. 13AP-797                                                                               6



Natural Resources and                         :
Industrial Commission of Ohio,
                                              :
               Respondents.
                                              :



                         MAGISTRATE'S DECISION

                               Rendered on August 26, 2014



               The Mikulka Law Firm, LLC, and Angela J. Mikulka, for
               relator.

               Michael DeWine, Attorney General, and Kevin J. Reis, for
               respondent Industrial Commission of Ohio.

               Isaac, Wiles, Burkholder & Teetor, LLC, and J. Miles Gibson,
               for respondent Department of Natural Resources.


                                     IN MANDAMUS

       {¶ 14} In this original action, relator, Robert Eaken, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate its
October 18, 2012 order that exercised continuing jurisdiction over the June 28, 2012
order of its staff hearing officer ("SHO") that granted to relator R.C. 4123.57(B) scheduled
loss compensation for the loss of use of his right arm, and to enter an order reinstating the
June 28, 2012 SHO's order.
Findings of Fact:
       {¶ 15} 1. On February 5, 2008, relator sustained an industrial injury while
employed as a mechanic for respondent Ohio Department of Natural Resources
("employer"). The injury occurred when relator tried to catch a falling battery.
       {¶ 16} 2. The industrial claim (No. 08-809835) is allowed for:
               Cervical sprain/strain; thoracic sprain/strain; right shoulder
               sprain/strain; herniated disc C5-6; cervical spinal stenosis
               C5-6; tear right supraspinatus.
No. 13AP-797                                                                         7


      {¶ 17} 3. On February 14, 2008, relator was initially examined by chiropractor
Jeremiah Ferrara, D.C. In his three-page narrative report dated February 14, 2008, Dr.
Ferrara wrote:
               Due to the loss of mobility of the right forearm, especially the
               bicep and brachioradialis muscles, it is my recommendation
               that Mr. Eaken consults with an orthopedist or neurologist
               for a possible EMG/NCV exam of the upper extremities. I
               also recommend X-Rays of the cervical and thoracic spine
               and the right shoulder.

      {¶ 18} 4. On October 23, 2008, Hyo H. Kim, M.D., wrote:

               CASE HISTORY
               57 y/o male with severe pain in the right shoulder down to
               the arm with weakness.
               He [is] unable to raise his arm. He is unable to push or pull
               with the right arm.
               Past medical history is significant for hypertension and an
               injury at work in February 2008 when he jerked his right
               arm and neck when he accidentally touched a battery.
               MRI scan revealed a small tear of the rotator cuff.
               Cervical MRI revealed some bulging discs.
               Medications include Lisinopril.

               DIAGNOSTIC IMPRESSION
               Right Cervical radiculopathy affecting C-5/6 root with severe
               axonal damage.

               RECOMMENDATIONS
               C-spine studies including x-rays and MRI scan.

      {¶ 19} 5. On September 10, 2008, upon referral from Dr. Ferrara, relator was
examined by Thomas A. Joseph, M.D. In his two-page narrative report, Dr. Joseph wrote:
               IMPRESSION:          [One] C5-6 disc herniation.
                                    [Two] Right upper extremity             C5
                                    radiculopathy.

               RECOMMENDATION: This patient has a clinical picture of
               cervical radiculopathy. I have recommended an EMG study
               to document the site of compression as well as prognosis for
               recovery. He is a non diabetic, hardworking middle-aged
               male who has continued to work in a light duty capacity since
               3 weeks from the time of injury. I would recommend highly
               that this EMG study be done promptly to facilitate his care as
               he has already lost motor function in the right arm. In
No. 13AP-797                                                                        8


               addition he will need a f/u appointment with a spine
               specialist for further [evaluation] and treatment. I would
               recommend referral to either Dr. Paul Pagano or Dr. Douglas
               Musser. The patient may continue working in a light duty
               capacity as symptoms permit. There is nothing on his exam
               or radiographic studies to suggest a concomitant shoulder
               problem.

      {¶ 20} 6. On January 14, 2009, upon referral from Dr. Ferrara, relator underwent
a neurological examination performed by John R. Becker, Jr., M.D. In his two-page
narrative report, Dr. Becker wrote:
               ASSESSMENT: Suspect right rotator cuff tear responsible
               for limitation in right upper extremity flexion and abduction.
               However, there has been EMG evidence of right C5-C6
               radiculopathy with axonal loss and MRI showing broad-
               based bilateral disc disease at C6 * * *.

               PLAN: Had lengthy discussion with Bob and his wife
               concerning options. He does not want neck surgery at this
               time which is reasonable and will probably seek out a 2nd
               opinion regarding the rotator cuff issue as discussed above.

      {¶ 21} 7. On March 20, 2009, relator was examined by orthopedic surgeon
Jeffrey S. Noble, M.D., who is employed by Crystal Clinic Inc. Dr. Noble wrote:
               ON PHYSICAL EXAMINATION: He can only FE his arm
               maybe 40 degrees, his deltoid [is] not contracting and it's
               markedly atrophied over all three heads. His ER strength has
               a drop sign and marked loss of strength there. He is weak in
               the biceps. He had a nerve conduction, EMG three months
               ago by Dr. Kim and he has seen a couple of neurologists. He
               has no crepitation. He has passive motion so there are no
               signs of frozen shoulder, but he can't actively raise it and he's
               markedly weak in a C5 dermatomal pattern.

               MRI shows a large disk at 5-6 on that side.

               MRI shoulder doesn't show a significant rotator cuff tear, but
               he has some tendinopathy there.

               TREATMENT/PLAN/DISCUSSION: I think this is cervical
               spine related. However, I would and I talked with Dr. Ehrler
               about this: I would repeat his nerve conduction, EMG to
               include the paraspinals and have Dr. Ehrler see him back for
               surgery if that is what he would like to do.
No. 13AP-797                                                                             9


       {¶ 22} 8. On May 1, 2009, relator was examined by orthopedic surgeon
Douglas M. Ehrler, M.D. Dr. Ehrler wrote:
               He comes in [to]day he had a negative shoulder work up and
               MRI by Dr. Noble, he still says his arm is extremely weak for
               deltoid as well as bending his elbow, but distally he has good
               strength.

               ***

               From my standpoint he says he wants to have this fixed, the
               formal recommendation is to get it fixed, this is a very bad
               prognosis, I would assume he's not getting any of this back,
               anything he got back would be a bonus but you have to do
               something to give that nerve root the best chance of getting
               better, this will be a long recovery road to build that back up
               with it being this weak for this long.

               Surgery is an anterior cervical discectomy fusion allograft
               bone and plate at C5-6. We discussed the risks and benefits
               of this surgical procedure in detail.

       {¶ 23} 9. On May 21, 2009, Dr. Ehrler performed the surgical procedure described
in his May 1, 2009 report. His operative report is contained in the stipulated record.
       {¶ 24} 10. On October 31, 2011, Dr. Ferrara issued a three-page narrative report,
stating:
               Mr. Robert Eaken presents today for progress-evaluation
               specifically for the upper extremities in relation to the
               industrial injury on 2/5/2008 while employed by the
               Department of Natural Resources, West Branch Park.

               ***

               Mr. Eaken's primary complaint since recovering from neck
               surgery in 2009 is now overall R hand/arm pain/ weakness,
               intermittent [right] forearm/hand edema and swelling, and
               functional loss of movement of his [right] arm; specifically of
               the [right] bicep, deltoid, and rotator cuff muscles. Muscle
               weakness is also noted in Bob's L arm, but significantly more
               of his injured [right] arm/hand.

               ***

               ALLOWED CONDITIONS:
               [One] 722.0 cervical IVD syndrome at C5-C6
               [Two] 723.0 cervical spinal stenosis at C5-C6
No. 13AP-797                                                                       10


               [Three] 840.9 [right] rotator cuff syndrome/impingement

               ASSESSMENT:
               It is my medical opinion that since the [date of injury] and
               subsequent neck surgery and rehabilitation that Mr. Eaken's
               [right] arm/hand is permanently partially impaired (PPI) as
               the direct result of the industrial accident on 2/5/2008. It is
               also my opinion that Bob has reached maximal medical
               improvement (MMI) in regards to his neck and arm.
               Furthermore, it is my opinion that Mr. Eaken be re-
               evaluated by an independent medical examiner
               (IME) to determine what percentage of PPI Bob has
               sustained. It is also my opinion that Mr. Eaken be
               re-examined         by     his     neurosurgeon       and/or
               orthopedic surgeon to determine is [sic] further
               surgeries to his neck and/or rotator cuff would be
               warranted.

               ***

               Since surgery and initial rehabilitation I have asked Mr.
               Eaken to visit my office every 4-6 months to personally
               evaluate his progressions. However, I do allow my patients
               with ongoing need for therapy such as electric stimulation
               (97014) used for daily/weekly aches and pains to come to my
               office to utilize my therapy equipment. Because Bob's usage
               of my therapy equipment does not require my direct time or
               attention, I have allowed Bob to visit my office from week to
               week to help with his daily symptoms.

               ***

               Normally with [sic] patient under Bob's circumstances would
               be unable to work at all over the last few years since his
               injury, surgery, and post-surgery rehabilitation. Mr. Eaken is
               certainly not most patients! If a missed work history were to
               be obtained, one would see that besides a few weeks during
               surgery and recovery, Bob has not missed much work. Due to
               his left-handedness, Bob has been able to continue his job
               responsibilities as mechanic for West Branch State Park in
               lieu of his increasingly impaired R arm/hand.

               [One] Bob's loss of the use [of] his [right] arm began
               approximately 10-14 days after the [date of injury] on
               2/5/08. Initially Bob could still use his [right] bicep after the
               injury, but shortly after (~10 days) Bob's arm started to
               rapidly lose function.
No. 13AP-797                                                                            11


               [Two] As mentioned earlier, Bob's expectancy to return to
               work has never been an issue as he continues to perform his
               work duties by altering his techniques.

               [Three] N/A

               [Four] As mentioned earlier, Bob continues to find ways to
               complete his job duties. But, future restrictions may change
               as the PPI of his [right] arm/hand continues to worsen.

(Emphasis sic.)

       {¶ 25} 11. On November 11, 2011, citing the October 31, 2011 report of Dr. Ferrara,
relator moved for R.C. 4123.57(B) scheduled loss compensation for the alleged loss of use
of his right arm.
       {¶ 26} 12. On January 9, 2012, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), relator was examined by Arvin J.K. Gallanosa, M.D. In his
five-page narrative report, Dr. Gallanosa states:
               In my medical opinion and based on my examination and
               review of the medical records, Mr. Eaken does have total
               permanent loss of use of the right upper limb. However, it is
               unclear whether this is due to his allowed conditions of
               herniated disc and cervical stenosis. According to the office
               visit note from Dr. Ehrler, his surgeon, dated 09/04/09, he
               had normal strength in the right upper limb except for some
               weakness around the shoulder. On examination by Dr.
               Ferrara dated 10/31/11, he had 0-1/5 strength in the right
               upper limb throughout. On my examination, he had loss of
               strength with right shoulder at 1-2/5 with shoulder flexion,
               extension, and abduction and 0/5 with other shoulder
               movements. He had 0/5 strength with elbow extension and
               flexion on my examination as well. Clearly something had
               occurred between his last examination with Dr. Ehrler in
               2009 and the current examinations from Dr. Ferrara in 2011
               and my current examination. He is seen to have poor use of
               the right upper limb with very limited movement of the right
               shoulder and better movement distally on examination
               today. However, it is not clear to me that this is a direct
               result of his allowed conditions in the claim. Consideration
               should be given to updated cervical MRI and electro-
               diagnostic studies to determine whether the etiology of his
               loss of right upper limb use is due to his currently allowed
               conditions or to another, as yet undiagnosed, issue.
No. 13AP-797                                                                           12


               In summary, based on the available medical records, I
               cannot conclude that the loss of use is due to the allowed
               conditions and therefore total, permanent loss of use is not
               granted at this time. If additional studies are performed to
               support the total, permanent loss of use, please forward to
               me for my review and consideration.

               ***

               Mr. Eaken's limited right shoulder range of motion and loss
               of strength at the right shoulder area as well as his limited
               elbow flexion and extension and loss of strength in elbow
               flexion and extension are the main issues, which prevent his
               right arm from being used in the way it would be expected.
               As noted above, I cannot conclude that the stated loss is due
               to the allowed conditions.

      {¶ 27} 13. Following a March 8, 2012 hearing, a district hearing officer ("DHO")
issued an order denying relator's November 11, 2011 motion.
      {¶ 28} 14. Relator administratively appealed the DHO's order of March 8, 2012.
      {¶ 29} 15. On March 22, 2012, at the bureau's request, relator was examined by
Stephanie Kopey, D.O. In her six-page narrative report, Dr. Kopey states:
               Impression:
               This is a 60 y.o. year old [sic] man with allowed diagnoses of:
               847.0 Sprain of Neck, 847.1 Sprain of Thoracic Region,
               840.9 Sprain Shoulder/Arm NOS (Right Shoulder), 722.0
               C5-C6 Herniated Disc, 723.0 Cervical Spinal Stenosis at C5-
               C6.


               Now, I will answer the requested questions:

               Does the medical documentation in the file indicate whether
               the injured worker is/was temporarily totally disabled from
               1/27/12 to [estimated] date of 5/18/12? If so, is the requested
               period of disability related to the 2/5/08 work related
               accident or another non work-related event (this could
               include natural deterioration or unrelated medical
               condition(s))? Please explain the basis of your opinion.

               Yes, the medical documentation supports that the injured
               worker is temporarily totally disabled from 1/27/12 to
               5/18/12. The requested period of disability is related to the
               2/5/08 work related accident and the allowed condition of
               C5-6 herniated disc. The primary diagnosis limiting his
No. 13AP-797                                                                        13


               ability to work is the weakness in C5 and C6 muscles. There
               were concordant finding[s] on his MRI of C5-6 disc bulge
               prior to surgery and an EMG report by Dr. Kim confirms the
               diagnosis of C5 and/or C6 radiculopathy. Inconsistencies in
               the strength testing post-operatively raise the question on
               the file review of whether he had recovered and then had
               some new injury causing new weakness. The discharge
               summary after his ACDF does not document a significant
               recovery in his strength postoperatively. There have been
               several examinations which note non-dermatomal sensory
               loss and one recent note by Dr. [Ehrler] notes his symptoms
               to be out of proportion to his MRI findings so there may be
               some symptom magnification going on. He does however
               have imaging, EMG and examination findings consistent
               with a chronic right cervical radiculopathy causing his right
               arm weakness which Dr. [Ehrler] stated the prognosis for
               recovery after surgery was poor due to the duration and
               extent of the axonal damage seen on the EMG. He has a
               remote (age 17) right forearm fracture with no sequelae. He
               has co-existent right acromioclavicular degenerative joint
               disease, partial rotator cuff tear and findings consistent with
               impingement syndrome on his shoulder MRI but this cannot
               explain the extent of weakness, atrophy and reflex changes
               seen in this patient and his clinical examination is not
               consistent with this being the primary problem. No other
               non-allowed condition or disease explains his current
               symptoms.

      {¶ 30} 16. On April 18, 2012, at the employer's request, relator was examined by
Matthew D. McDaniel, M.D. In his five-page narrative report, Dr. McDaniel opined:
               In my opinion, the medical evidence does not support that
               Mr. Eaken sustained a total loss of use of the right arm
               secondary to the allowed conditions. The claim allowances
               would not anatomically cause a total loss of use of an entire
               extremity. Sprain/strains heal and do not cause global arm
               weakness and numbness. The herniated disc/spinal stenosis
               at C5-6 is localized to one cervical level. The initial EMG
               showed only C5-6 radiculopathy. These nerves would affect
               the deltoid, biceps and sometimes wrist extensors, not all of
               the muscle groups in the entire arm.

               Clinically, Dr. [Ehrler] repeatedly documented normal
               strength throughout the arm after surgery — specific
               reference is made to the bilateral 5/5 strength at C5-6, C6-7,
               C7-8, and C8-T1 in the 06/05/09, 06/29/09, and 09/04/09
               notes. Upon representation to Dr. [Ehrler] on 02/27/12, the
               clinical examination is much different than in 2009,
No. 13AP-797                                                                          14


               indicating some other pathologic process has occurred in the
               interim.

               We then move to the second electrodiagnostic study of
               04/12/11. This study is also much different from the first,
               and demonstrates new and distinct pathology now involving
               the non-allowed right C7 nerve root and non-allowed mixed
               peripheral neuropathy.

               In my opinion, clearly something else is happening here
               outside of the claim involving a different cervical nerve root
               and the peripheral nerves of the right arm that cannot be
               reasonably attributed to the industrial injury and allowed
               conditions.

      {¶ 31} 17. Following a June 28, 2012 hearing, an SHO mailed an order on July 6,
2012 that vacated the DHO's order of March 8, 2012 and granted relator's November 11,
2011 motion for R.C. 4123.57(B) compensation for an alleged loss of use of the right arm.
The SHO's order explains:
               The Staff Hearing Officer finds that the Injured Worker was
               initially examined, on behalf of the Bureau of Workers'
               Compensation, by Arvin J.K. Gallanosa, M.D. to determine
               whether the Injured Worker has sustained a total functional
               loss of use of the right arm due [to] allowed conditions in
               this claim, as alleged.

               In his report dated 01/09/2012, Dr. Gallanosa does conclude
               that the Injured Worker does suffer the total functional loss
               of use of the right arm, however, he further finds that he is
               unable to causally relate this loss of use to allowed conditions
               in this claim.
               Dr. Gallanosa indicates certain findings justifying his
               conclusion that the Injured Worker does have a total loss of
               use of the right arm however, he goes on to state that:
               It is unclear whether this is due to his allowed conditions of
               herniated disc and cervical stenosis. According to the office
               visit note from Dr. Ehrler, his surgeon, dated 09/04/2009,
               he had normal strength in the right upper limb except for
               some weakness around the shoulder. On examination by Dr.
               Ferrara dated 10/31/2011, he had 0-1/5 strength in the right
               upper limb throughout. On my examination he had lost the
               strength with right shoulder at 1-2/5 with shoulder flexion,
               extension, and abduction and 0/5 with other shoulder
               movements. He had 0/5 strength with elbow extension and
               flexion on my examination as well. Clearly something had
               occurred between his last examination with Dr. Ehrler in
No. 13AP-797                                                                    15


               2009 and the current examinations from Dr. Ferrara in 2011
               and my current examination.

               In his summary, Dr. Gallanosa goes on to say, "I cannot
               conclude that the loss of use is due to the allowed conditions
               and therefore total, permanent loss of use is not granted at
               this time.["]

               Recently, the Injured Worker was examined on the issue of
               temporary total disability on behalf of the Bureau of
               Workers' Compensation, by Stephanie Kopey, M.D. In her
               evaluation, Dr. Kopey was specifically requested to address
               the issue of whether or not the Injured Worker is temporarily
               and totally disabled due to the 02/05/2008 work-related
               accident or another non-work-related event, including
               natural deterioration or unrelated medical condition or
               conditions. Dr. Kopey concluded that the Injured Worker's
               present disability is related to the 02/05/2008 work-related
               accident and the allowed condition of C5-6 herniated disc.
               She goes on to state:

               [T]he primary diagnosis limiting his ability to work is the
               weakness in the C5 and C8 [sic] muscles. There were
               concordant finding[s] on his MRI of C5-6 disc bulge prior to
               surgery and an EMG report by Dr. Kim confirms the
               diagnosis of C5 and/or C6 radiculopathy. Inconsistencies in
               the strength testing post-operative raise the question on the
               file review of whether he had recovered and then had some
               new injury causing the new weakness. The discharge
               summary after his ACDF does not document a significant
               recovery in his strength post-operatively. There have been
               several examinations which note non-dermatomal sensory
               loss and one recent note by Dr. Ehrler notes his symptoms to
               be out of proportion to his MRI findings so there may be
               some symptom magnification going on. He does however
               have imaging, EMG and examination findings consistent
               with a chronic right cervical radiculopathy causing his right
               arm weakness which Dr. Ehrler stated the prognosis for
               recovery after surgery was poor due to the duration and
               extent of the axonal damage seen on the EMG.

               Dr. Kopey also goes on to state that:

               [T]he Injured Worker has a remote (Age 17) right forearm
               fracture with no sequelae. He has co-existent right
               acromioclavicular degenerative joint disease, partial rotator
               cuff tear and findings consistent with impingement
               syndrome on his shoulder MRI but this cannot explain the
No. 13AP-797                                                                     16


               extent of weakness. Atrophy and reflex changes seen in this
               patient and his clinical examinations not consistent with this
               being the primary problem. No other non-allowed condition
               or disease explains his current symptoms.

               Given the Bureau of Workers' Compensation opinion from
               the examining physician Dr. Gallanosa, who opines that the
               Injured Worker does have the total loss of use of the right
               arm, (although indicating he could not opine that it was
               clearly related to the allowed conditions), and given the said
               opinion of Dr. Kopey who specifically ruled out all other non-
               allowed conditions as being the primary problem for the
               Injured Worker's right upper extremity, and coupled with
               the medical evidence offered in support of the Injured
               Worker's request, identified below, the Staff Hearing Officer
               concludes that the Injured Worker has satisfied his burden of
               proof in this particular matter.

               The Staff Hearing Officer concludes that the Injured Worker
               has demonstrated by a preponderance of the evidence that
               he has sustained the total loss of functional use of the right
               arm due to allowed conditions in this claim.

               It is ordered therefore, that the Injured Worker is entitled to
               receive compensation pursuant to R.C. 4123.57(B) for the
               total loss of the right arm, commencing 10/31/2011, the date
               of the Jeremiah Ferrara, D.C. opinion that the Injured
               Worker has a total loss of functional use of the right arm. The
               Staff Hearing Officer finds that this is the first persuasive
               documented opinion actually stating that the Injured Worker
               had suffered the total loss of use of the right arm.

               The Injured Worker's request for payment of this award to
               commence on 02/14/2008, pursuant to the 02/14/2008
               office visit record of Dr. Ferrara, is not well taken and is
               hereby specifically rejected as Dr. Ferrara does not indicate
               in that report that the Injured Worker has sustained the total
               loss of use of the right arm. To the contrary, the Injured
               Worker was noted to be working with restricted mobility of
               the right shoulder, at that time, and that these restrictions
               could possibly increase with time.

               In rendering this decision, in addition to relying upon the
               said opinions of Dr. Gallanosa and Dr. Kopey as discussed
               above, the Staff Hearing Officer also relies upon the
               10/31/2011 medical narrative from Jeremiah Ferrara, D.C.;
               the 09/10/2008 medical narrative from Thomas A. Joseph,
               M.D.; the 10/23/2008 opinion from Hyo H. Kim, M.D.; the
No. 13AP-797                                                                         17


               neurological consultation report dated 01/14/2009 from
               John R. Becker, M.D.; and the 03/20/2009 medical
               narrative from Jeffrey S. Noble, M.D.

               This evidence was found persuasive in this matter. Based
               upon all the evidence cited above, the Staff Hearing Officer
               concludes that the Injured Worker has demonstrated by a
               preponderance of the evidence that the Injured Worker has
               lost the functional use of his right arm, for all intent and
               purposes, thus satisfying the standard set forth in State ex
               rel. Alcoa Bldg. Products v. Indus. Comm. (2004), 102 Ohio
               St.3d.

        {¶ 32} 18. The employer administratively appealed the SHO's order of June 28,
2012.
        {¶ 33} 19. On July 26, 2012, another SHO mailed an order refusing the employer's
appeal.
        {¶ 34} 20. On August 9, 2012, the employer moved for reconsideration.       The
employer alleged that the SHO's order of June 28, 2012 contains clear mistakes of fact
and law.    The employer alleged that the SHO had relied upon the reports of Drs.
Gallanosa and Kopey and that in neither of those reports does the doctor opine that
relator has loss of use of the right arm as a result of the allowed conditions of the
industrial claim.
        {¶ 35} 21. Following an October 18, 2012 hearing, the three-member commission
mailed an order on December 15, 2012 that exercises continuing jurisdiction over the
SHO's order of June 28, 2012, and denies relator's November 11, 2011 motion for R.C.
4123.57(B) scheduled loss compensation.
               The commission's order explains:
               [I]t is the finding of the Industrial Commission that the
               Employer has met its burden of proving that the Staff
               Hearing Officer order, issued 07/06/2012, contains a clear
               mistake of law of such character that remedial action would
               clearly follow.

               Specifically, despite awarding a total loss of use of the right
               arm, the Staff Hearing Officer erroneously relied on the
               01/09/2012 medical report of Arvin [Gallanosa], M.D.,
               which does not causally relate the total loss of use to the
               Injured Worker's allowed condition in this claim. To the
               contrary, in his 01/09/2012 report Dr. Gallanosa concluded,
No. 13AP-797                                                                     18


               "I cannot conclude that the stated loss is due to the allowed
               conditions." Therefore, the Industrial Commission exercises
               continuing jurisdiction pursuant to R.C. 4123.52 and State ex
               rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 692 N.E.
               2d 188 (1998), State ex rel. Foster v. Indus. Comm., 85 Ohio
               St.3d 320, 707 N.E.2d 1122 (1999), and State ex rel. Gobich
               v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, 817
               N.E.2d 398, in order to correct this error.

               The Employer's request for reconsideration, filed
               08/09/2012, is granted. * * * It is further ordered that the
               Staff Hearing Officer order, issued 07/06/2012, is vacated.

               It is the order of the Commission that the Injured Worker's
               C-86 Motion, requesting a total loss of use award for the
               right upper extremity, filed 11/11/2011, is denied.

               It is the order of the Commission that the application for the
               functional loss of use of the right arm, thus entitling the
               Injured Worker to a total loss of use award in accordance
               with R.C. 4123.57(B), is denied. This decision is based on the
               report of Arvin Gallanosa, M.D., dated 01/09/2012, and the
               report of Matthew McDaniel, M.D., dated 04/18/2012 [sic].

               Dr. Gallanosa found the Injured Worker does have a total
               permanent loss of use of the right upper limb. However, Dr.
               Gallanosa further found it is unclear whether this is due to
               his allowed conditions of herniated disc and cervical
               stenosis. The Injured Worker was found to have poor use of
               his right upper limb but it is unclear that this is a direct
               result of the allowed conditions in the claim. Based on the
               available medical records, Dr. Gallanosa states he cannot
               conclude that the loss of use is due to the allowed conditions
               and, therefore, a permanent total loss of use cannot be
               granted.

               Dr. McDaniel performed an examination of the Injured
               Worker on 04/18/2012. Dr. McDaniel opined the medical
               evidence does not support the Injured Worker sustained a
               total loss of use of his right arm secondary to the allowed
               conditions. Dr. McDaniel concluded the claim allowances
               would not anatomically cause a total loss of use of an entire
               extremity, and clearly something else was happening outside
               of the claim involving a different cervical root and peripheral
               nerves of the right arm that could not be reasonably att-
               ributed to the industrial injury and the allowed conditions.
No. 13AP-797                                                                              19


                 Neither Dr. Gallanosa nor Dr. McDaniel attribute the Injured
                 Worker's loss of use of the right arm to the conditions
                 allowed in this claim. Consequently, as the persuasive
                 medical evidence does not find a causal relationship between
                 the loss of use and the conditions allowed in this claim, the
                 motion for a loss of use award is denied.

          {¶ 36} 22. On September 13, 2013, relator, Robert Eaken, filed this mandamus
action.
Conclusions of Law:
          {¶ 37} The issue is whether the commission abused its discretion in finding a clear
mistake of law in the SHO's order of June 28, 2012 as a basis for the exercise of
continuing jurisdiction.
          {¶ 38} Finding that the commission did not abuse its discretion, it is the
magistrate's decision that this court deny relator's request for a writ of mandamus, as
more fully explained below.
          {¶ 39} Continuing jurisdiction is not unlimited. Its prerequisites are: (1) new and
changed circumstances; (2) fraud; (3) clear mistake of fact; (4) clear mistake of law; and
(5) error by an inferior tribunal. State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585,
2004–Ohio–5990; State ex rel. Royal v. Indus. Comm., 95 Ohio St.3d 97 (2002); State ex
rel. Foster v. Indus. Comm., 85 Ohio St.3d 320 (1999); and State ex rel. Nicholls v. Indus.
Comm., 81 Ohio St.3d 454 (1998).




          {¶ 40} In Gobich, at ¶ 15, the court states:

                 The presence of one of these prerequisites must be clearly
                 articulated in any commission order seeking to exercise
                 reconsideration jurisdiction. This means that the prere-
                 quisite must be both identified and explained. It is not
                 enough to say, for example, that there has been a clear error
                 of law. The order must also state what that error is. This
                 ensures that the party opposing reconsideration can prepare
                 a meaningful defense to the assertion that continuing
                 jurisdiction is warranted. It also permits a reviewing court to
                 determine whether continuing jurisdiction was properly
                 invoked.

(Citations omitted.)
No. 13AP-797                                                                               20



       {¶ 41} In the seminal case of State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d
452 (1993), the court held that non-allowed medical conditions cannot be used to advance
or defeat a claim for compensation. Later, in State ex rel. Bradley v. Indus. Comm., 77
Ohio St.3d 239, 242 (1997), citing its decision in Waddle, the court stated that the mere
presence of a non-allowed condition in a claim does not itself destroy the compensability
of the claim, but the claimant must meet his burden of showing that an allowed condition
independently caused the disability.
       {¶ 42} In State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 341,
2004-Ohio-3166, the Supreme Court of Ohio recognized that a claimant could recover for
the loss of an arm even where residual use of the arm remained. Citing a Pennsylvania
case with approval, the court stated that " ‘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.’ " Alcoa, at ¶ 13, quoting Curran v. Walter E. Knipe &
Sons, Inc., 185 Pa.Super. 540, 547, 138 A.2d 251 (1958). Similarly, in State ex rel. Kroger
Co. v. Johnson, 128 Ohio St.3d 243, 2011-Ohio-530, ¶ 15, the court stated that the
retention of "residual function" in a claimant's hand did not automatically defeat his claim
for loss of use. Rather, "the pivotal question is how much function remains." Id.
       {¶ 43} Analysis begins with some observations regarding the SHO's order of
June 28, 2012 that granted R.C. 4123.57(B) scheduled loss compensation for the alleged
loss of use of relator's right arm.
       {¶ 44} While the SHO's order of June 28, 2012 states reliance upon the medical
reports of Drs. Ferrara, Joseph, Kim, Becker, and Noble, the reliance is largely
unexplained with the possible exception of the October 31, 2011 report of Dr. Ferrara,
which the SHO used to commence compensation effective the date of the report.
       {¶ 45} It is clear that primary reliance was upon the reports of Drs. Gallanosa and
Kopey. Those two reports were quoted at length and discussed at some length.
       {¶ 46} While Dr. Gallanosa determined from his examination that relator "does
suffer the total functional loss of use of the right arm," he also found that "he is unable to
causally relate this loss of use to allowed conditions in this claim." Contrary to what
seems to be suggested by relator here, Dr. Gallanosa's report is not equivocal. It does not
lack probative value simply because Dr. Gallanosa was unable to determine whether the
No. 13AP-797                                                                             21


allowed conditions of the claim are the proximate cause of relator's alleged functional loss
of use of his right arm.
       {¶ 47} Equivocal medical opinions are not evidence. State ex rel. Eberhardt v.
Flxible Corp., 70 Ohio St.3d 649 (1994). Equivocation occurs when a doctor repudiates
an earlier report, renders contradictory or uncertain opinions, or fails to clarify an
ambiguous statement. Id.
       {¶ 48} Clearly, it is not inconsistent for a doctor to find from his clinical
examination that the claimant suffers a loss of use, yet the doctor remains uncertain that
the industrial injury is the cause of the loss of use because more diagnostic testing needs
to be done. This element of uncertainty does not render the report non-probative or
equivocal as a matter of law. However, the report cannot be relied upon as the sole
evidence supporting a finding that the observed loss of use is proximately caused by one
or more allowed conditions of the claim. That is, Dr. Gallanosa's report cannot stand
alone as the some evidence supporting the award of compensation.
       {¶ 49} Dr. Kopey's report provides no evidence supporting a finding that the
alleged loss of use of the right arm is proximately caused by the industrial injury. Dr.
Kopey examined relator to determine whether relator is temporarily totally disabled. The
standard for determining temporary total disability is whether the claimant is unable to
return to his former position of employment due to the industrial injury. State ex rel.
Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
       {¶ 50} Dr. Kopey was not asked to determine whether one or more allowed
conditions of the claim caused the alleged loss of use of the right arm nor did Dr. Kopey
render such a determination.
       {¶ 51} Dr. Kopey did determine that the requested period of temporary total
disability is related to the February 5, 2008 injury and specifically "the allowed condition
of C5-6 herniated disc." That is, Dr. Kopey opined "[t]he primary diagnosis limiting his
ability to work is the weakness in C5 and C6 muscles."
       {¶ 52} Clearly, Dr. Kopey's opinion that the industrial injury prevents a return to
the former position of employment does not translate into an opinion that the alleged loss
of use is proximately caused by the industrial injury.
       {¶ 53} In its October 18, 2012 order exercising continuing jurisdiction, the
commission correctly points out that the SHO's order of June 28, 2012 states reliance
No. 13AP-797                                                                              22


upon the report of Dr. Gallanosa, which does not causally relate the alleged loss of use to
the allowed conditions in the claim.
       {¶ 54} However, the commission's order of October 18, 2012 fails to address the
report of Dr. Kopey or to even mention it. In that regard, the commission's analysis of the
alleged mistake of law is incomplete. That is, the commission fails to explain that the
SHO's reliance upon the report of Dr. Gallanosa is a mistake of law because neither the
report of Dr. Gallanosa nor the report of Dr. Kopey causally relate the alleged loss of use
to one or more allowed conditions of the claim.
       {¶ 55} In the magistrate's view, the commission's failure to fully explain why the
SHO's reliance upon the report of Dr. Gallanosa is a mistake of law is not fatal to the
commission's order exercising continuing jurisdiction.
       {¶ 56} Here, relator argues that the jurisdictional basis, i.e., clear mistake of law,
for the exercise of continuing jurisdiction was insufficiently explained by the commission
because "no law is ever identified nor is the specific misapplication of the said law set
forth." (Relator's brief, 13.) Relator further asserts "[w]hile continuing jurisdiction was
exercised on the basis of a clear mistake of law, no statute, Administrative Code section or
other law of any type was ever identified as being mistakenly understood or applied by
[the] SHO. (Relator's brief, 16.)
       {¶ 57} Relator's argument lacks merit. It is clear from a reading of the
commission's October 18, 2012 order that the commission applied well-settled case law in
the area of Ohio Workers' Compensation when it determined that the SHO's order of
June 28, 2012 improperly relies upon the report of Dr. Gallanosa to support a finding that
one or more allowed conditions of the claim proximately caused an alleged loss of use of
the right arm. That is, the commission's order of October 18, 2012 fails to cite to Waddle
and/or Bradley or any other case law pronouncing the proposition of law being applied to
the SHO's order of June 28, 2012. That failure is not fatal to the commission's exercise of
continuing jurisdiction. State ex rel. Washington-Bass v. Setla LLC, 10th Dist. No. 09AP-
343, 2010-Ohio-5151, ¶ 5.
       {¶ 58} Relator further argues that the stated reliance of the SHO's order of
June 28, 2012 on the reports of Drs. Ferrara, Joseph, Kim, Becker, and Noble saves the
order from the exercise of continuing jurisdiction. Relator is incorrect.
No. 13AP-797                                                                                23


       {¶ 59} The October 31, 2011 report of Dr. Ferrara upon which the SHO relied for
the start date of compensation fails to opine that one or more allowed conditions of the
claim proximately cause an alleged loss of use of relator's right arm. It cannot, therefore
be used to establish a start date for compensation or to support the award of
compensation. In fact, Dr. Ferrara incorrectly lists "rotator cuff syn-drome/impingement"
as an allowed condition. He also opines that relator's "[right] arm/hand is permanently
partially impaired (PPI) as the direct result of the industrial accident on 2/5/2008." That
statement does not even suggest loss of use of the right arm.
       {¶ 60} While the September 10, 2008 report of Dr. Joseph states that relator "has
already lost motor function in the right arm," the report fails to indicate any awareness of
the Alcoa standard for determining loss of use. In fact, Dr. Joseph does not opine that
relator has a loss of use of his right arm under the Alcoa standard.
       {¶ 61} The October 23, 2008 report of Dr. Kim states that relator "is unable to
raise his arm. He is unable to push or pull with the right arm." However, Dr. Kim does
not opine that relator has a loss of use of his right arm under the Alcoa standard.
       {¶ 62} The January 14, 2009 report of Dr. Becker is focused upon a suspected right
rotator cuff tear that allegedly limits right upper extremity flexion and abduction. The
industrial claim is not allowed for a right rotator cuff tear. Moreover, Dr. Becker does not
opine that one or more allowed conditions of the claim proximately cause an alleged loss
of use of the right arm.
       {¶ 63} The March 20, 2009 report of Dr. Noble finds upon examination that the
deltoid is not contracting and is markedly atrophied over all three heads. Dr. Noble also
finds that relator cannot "actively raise" his right shoulder, and he is "markedly weak in a
C5 dermatomal pattern." Dr. Noble does not opine that one or more allowed conditions
of the claim proximately cause an alleged loss of use of the right arm.
       {¶ 64} In short, the reports of Drs. Ferrara, Joseph, Kim, Becker, and Noble, upon
which the SHO states additional reliance, cannot save the order from the exercise of the
commission's continuing jurisdiction.
       {¶ 65} 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
No. 13AP-797                                                                     24


                                          KENNETH W. MACKE




                              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).
