[Cite as State ex rel. Gwiazda v. Indus. Comm., 2016-Ohio-5153.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



State of Ohio ex rel. Stephen J. Gwiazda,              :

                 Relator,                              :

v.                                                     :               No. 15AP-882

Industrial Commission of Ohio                          :           (REGULAR CALENDAR)
and ABC Distribution Company,
                                                       :
                 Respondents.
                                                       :




                                         D E C I S I O N

                                      Rendered on July 28, 2016


                 Nager, Romaine & Schneiberg Co. L.P.A., Jerald A.
                 Schneiberg, Jennifer L. Lawther, and Corey J. Kuzma, for
                 relator.

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

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
SADLER, J.
        {¶ 1} Relator, Stephen J. Gwiazda, brings this original action seeking a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its May 1, 2015 order denying relator's motion for a total loss of use award and ordering
the commission to find that he is entitled to a total loss of use award for his left lower
extremity.
No. 15AP-882                                                                            2


       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who rendered a decision and
recommendation that includes findings of fact and conclusions of law, which is appended
hereto. Therein, the magistrate concluded the commission did not abuse its discretion in
denying relator's motion for the total loss of use award.
       {¶ 3} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986).
       {¶ 4} Relator sets forth the following objection to the magistrate's decision:
               The Magistrate erred in denying Relator's request for a writ of
               mandamus by relying on the Staff Hearing Officer Order of
               May 1, 2015.

       {¶ 5} The magistrate found that relator sustained a work-related injury on
February 5, 2009, when he was pinned between a tow-motor and a truck. On October 28,
2014, the commission granted relator's application for permanent total disability
compensation. Relator subsequently filed a C-86 motion requesting a loss of use award
for his left lower extremity. Relator supported his motion with the March 4, 2015 report
from his treating physician, Todd S. Hochman, M.D., who opined that "for all intents and
purposes, lost complete functional use of his left lower extremity as a result of his
February 5, 2009, work accident." Teresa Kay Larsen, D.O., performed an independent
medical examination of relator, and she issued a report on January 30, 2015. Dr. Larsen's
report concludes as follows: "While there is partial impairment of the left lower limb,
there is not a total loss of use of the left lower limb in this individual."
       {¶ 6} In denying relator's motion, the commission relied on Dr. Larsen's report
and the decision of the Supreme Court of Ohio in State ex rel. Alcoa Bldg. Prods. v. Indus.
Comm., 102 Ohio St.3d 341, 2004-Ohio-3166. In his objection, relator contends that the
No. 15AP-882                                                                             3


magistrate's decision is "inconsistent with the standard set forth in Alcoa." (Obj. to Mag.
Decision at 4.) We disagree.
       {¶ 7} In Alcoa, the Supreme Court established that in a non-amputation loss of
use case, the inquiry is whether the injured worker has suffered the permanent loss of use
of the injured body part for all practical intents and purposes. The magistrate concluded
that Dr. Larsen's report provided some evidence to support the commission's finding that
relator did not sustain a permanent loss of use of the left lower extremity for all practical
intents and purposes. In reaching this conclusion, the magistrate made the following
observations regarding Dr. Larsen's report:
              Dr. Larsen found that relator had full knee and ankle
              extension and flexion, had the ability to activate and use his
              left knee, ankle and foot, had partial ability to use his left hip
              flexors, and had a lack of thigh/leg muscle atrophy. Further,
              Dr. Larsen noted that, on indirect examination, relator shifted
              his weight through the left hip and bore weight equally at
              times through the left leg and foot while wearing an [ankle
              foot orthosis]. The magistrate finds that Dr. Larsen did not
              misapply the Alcoa standard.

(Emphasis added.) (Mag. Decision at ¶ 36.)
       {¶ 8} Dr. Larsen also expressed disagreement with some of Dr. Hochman's
findings and with his opinion regarding loss of use. Dr. Larsen's report provides, in
relevant part, as follows:
              While it is noted in the report of Dr. Hochman that Mr.
              Gwiazda has no active flexion or extension of the hip or knee,
              both my examination and review of the records, as discussed
              in the history section of this report, reveals that he does have
              good knee and ankle extension and flexion although there is
              significant weakness of the gluteal hip girdle muscles with
              partial hip flexor activation. Although his performance is
              variable on my examination, there is definite ability to
              activate and use the left knee, ankle, and foot, and a partial
              ability to use the left hip flexors, to change positions, bear
              weight at times and assist during position changes, standing,
              and ambulation. While there is partial impairment of the left
              lower limb, there is not a total loss of use of the left lower
              limb in this individual.

(Ex. J at 3, Dec. 22, 2015 Stipulated Record.)
No. 15AP-882                                                                              4


       {¶ 9} An appellate court will not determine that the commission abused its
discretion when there is some evidence in the record to support the commission's
findings. State ex rel. Medina v. Indus. Comm., 10th Dist. No. 15AP-29, 2016-Ohio-173,
¶ 11, citing State ex rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio St.3d 197, 198
(1986); State ex rel. Barnett v. Indus. Comm., 10th Dist. No. 14AP-628, 2015-Ohio-3898,
¶ 9. "The some evidence standard 'reflects the established principle that the commission
is in the best position to determine the weight and credibility of the evidence and disputed
facts.' " Id., quoting State ex rel. Woolum v. Indus. Comm., 10th Dist. No. 02AP-780,
2003-Ohio-3336, ¶ 4, quoting State ex rel. Pavis v. Gen. Motors Corp., 65 Ohio St.3d 30,
33 (1992).
       {¶ 10} Our review of Dr. Larsen's report leads us to the same conclusion reached
by the magistrate. We find that Dr. Larsen's report evidences compliance with the Alcoa
standard even though Dr. Larsen did not use the precise language employed in the Alcoa
decision. See, e.g., State ex rel. Holderman v. Indus. Comm., 10th Dist. No. 12AP-32,
2012-Ohio-6022 (medical report relied on by the commission in denying loss of use
award evidenced compliance with Alcoa standard even though the report did not use the
phrase "for all practical purposes" in concluding that the injured worker had not
sustained a total loss of use of her right hand). Accordingly, we agree with the magistrate
that Dr. Larsen's report constitutes "some evidence" to support the commission's
determination that relator did not sustain a total loss of use of his left lower extremity, as
the report indicates some functionality of relator's lower limbs. See State ex rel. Robinette
v. Indus. Comm., 10th Dist. No. 12AP-502, 2013-Ohio-2453, ¶ 8 (in denying an
application for loss of use of claimant's right leg, the commission did not abuse its
discretion by relying on the report of an examining physician who stated that "[t]here is a
distinct and significant difference between making a decision to not ambulate and actually
not being able to ambulate").
       {¶ 11} Following an independent review of the magistrate's decision and the
objection filed by respondent, we find that the magistrate has determined the pertinent
facts and properly applied the relevant law. Accordingly, we adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained
No. 15AP-882                                                                            5


therein. For the reasons set forth in the magistrate's decision and those expressed herein,
relator's objection is overruled.
                                                                     Objection overruled;
                                                               writ of mandamus denied.

                              BROWN and KLATT, JJ., concur.
                                    ______________
No. 15AP-882                                                                           6


                                     APPENDIX
                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

State of Ohio ex rel. Stephen J. Gwiazda,     :

               Relator,                       :

v.                                            :                   No. 15AP-882

Industrial Commission of Ohio                 :              (REGULAR CALENDAR)
and ABC Distribution Company,
                                              :
               Respondents.
                                              :


                          MAGISTRATE'S DECISION

                               Rendered on March 25, 2016


               Nager, Romaine & Schneiberg Co. L.P.A., Jerald A.
               Schneiberg, Jennifer L. Lawther and Corey J. Kuzma, for
               relator.

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


                                     IN MANDAMUS
         {¶ 12} Relator, Steven J. Gwiazda, 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 for total loss of use of
his left lower extremity, and ordering the commission to find that he is entitled to that
award.
Findings of Fact:
         {¶ 13} Relator sustained a work-related injury on February 5, 2009, when he was
pinned between a tow-motor and a truck, and his workers' compensation claim has been
allowed for the following conditions:
No. 15AP-882                                                                        7


              Open wound of left hip/thigh-complicated; fracture of
              sacrum, rectum injury-open; large open wound
              gluteal/peroneal area; perineal laceration; bilateral carpal
              tunnel syndrome; impotence, organic origin; sprain
              sacroiliac; sprain lumbar region; substantial aggravation of
              pre-existing degenerative joint disease left knee; traumatic
              arthritis left leg; tear left meniscus-current; tear left medial
              collateral ligament; adjustment reaction; dental caries.

       {¶ 14} 2. In an order mailed October 28, 2014, the commission granted relator's
application for permanent total disability ("PTD") compensation.
       {¶ 15} 3. On March 27, 2015, relator filed a C-86 motion requesting a finding of
loss of use left lower extremity.
       {¶ 16} 4. Relator's motion was supported by the May 22, 2014 evaluation and
reports from his treating physician Todd S. Hochman, M.D. Dr. Hochman noted the
following physical findings upon examination:
              He has extreme weakness noted throughout his left lower
              extremity. In fact, he had difficulty with active flexion and
              extension throughout his left hip. He had extreme difficulty
              with active flexion and extension throughout his left knee.
              There is some atrophy throughout the musculature in the left
              lower extremity. He was able to actively dorsiflex and plantar
              flex the left ankle. He ambulated with an antalgic gait with
              the assistance of a walker. When he elevated from a seated
              position, he was unable to do anything with his left lower
              extremity and was dependent on his right lower extremity.
              When he walks with the walker, he utilizes the walker and his
              right lower extremity. He uses momentum and pelvic
              movements in order to move his left lower extremity.

       {¶ 17} In his May 22, 2014 report, Dr. Hochman opined that relator had lost the
functional use of his left lower extremity, stating:
              First, it must be established that Mr. Gwiazda reports that he
              was asymptomatic and working full duty prior to
              February 05, 2009. As you know, Mr. Gwiazda sustained
              significant injuries as the result of his February 05, 2009
              work accident, and he has required numerous surgeries.
              Subsequent to the February 05, 2009 work injury, Mr.
              Gwiazda has developed a significant left lower extremity
              impairment. Mr. Gwiazda has essentially no active flexion or
              extension throughout his left knee or left hip. Mr. Gwiazda is
No. 15AP-882                                                                        8


             dependent on his right lower extremity in order to elevate
             from a seated position. Mr. Gwiazda ambulates with a walker
             and his right lower extremity, and does not utilize his left
             lower extremity for any purposeful part of ambulation. Mr.
             Gwiazda appears to use momentum and pelvic movements
             in order to move his left lower extremity. It is my medical
             opinion, within a reasonable degree of medical probably,
             that Mr. Steven Gwiazda has, for all intents and purposes,
             lost functional use of his left lower extremity as a result of his
             February 05, 2009 work accident.

      {¶ 18} 5. An independent medical examination was performed by Teresa Kay
Larsen, D.O. In her January 30, 2015 report, Dr. Larsen noted the allowed conditions in
relator's claim and provided her findings on physical examination:
             On physical examination, this is an alert and cooperative
             pleasant middle aged male in no distress. His affect is
             normal in range, and his body habitus is overweight.
             Examination of his left hip area reveals a long surgical scar
             from the gluteal area to the posterior thigh with significant
             loss of left gluteal muscle bulk. Passive range of motion of
             the left hip reveals normal motion in all planes. There is no
             thigh or leg muscle atrophy. Circumferential measurement of
             the left thigh is 51 cm and the right thigh is 50 cm, at 10 cm
             about the knees. Circumferential measurement of the calves
             is 36.5 cm bilaterally, at 20 cm below the tibial tuberosities.
             Examination of the left knee reveals full extension and
             flexion without discomfort. Surgical scars are not apparent.
             There is no joint tenderness, effusion, or instability. There
             are mild knee joint hypertrophic changes consistent with
             degenerative joint disease. Motor strength testing is limited
             by voluntary effort, as he initially did not perform any
             motion at the hip, knee, or ankle when requested. However,
             after discussion that it was noted that prior examiner's had
             documented motion and strength in these areas, he
             demonstrated 4/5 strength at the knee extensors, 5/5 at the
             ankle dorsiflexors, and brief but good strength (he was able
             to provide good resistance to manual muscle testing but
             briefly and at partial range) at the hip flexors. There was no
             active motion demonstrated in hip abduction or extension.
             Reflexes are 2/4 at the patella and achilles bilaterally.
             Sensation is described as diminished to light touch
             throughout the left lower limb circumferentially. There is
             trace pretibial pitting edema in the bilateral lower limbs. He
             is observed to use the left lower limb to push himself up
No. 15AP-882                                                                             9


              along the exam table by actively flexing the hip and flexing
              and extending the knee and ankle and similarly while
              changing positions to side lying. He ambulates with use of a
              walker, swinging the left leg through with touch down weight
              bearing on the left foot and appeared to be avoiding putting
              weight through the left leg on direct examination. On
              indirect observation as he entered the examination room and
              left the office, it is noted that he did shift his weight through
              the left hip and weight bear equally at times through the left
              leg and foot while wearing an AFO.

       {¶ 19} Thereafter, Dr. Larsen opined that relator did not have a total loss of use of
his left lower limb, stating:
              Based on a reasonable degree of medical certainty, it is my
              opinion that the allowed injury has not resulted in the total
              permanent loss of use of the left lower limb such that the
              effected part is useless for all practical purposes. Although
              there is significant loss of left gluteal musculature and
              muscle function in regard to left hip extension and abduction
              and to a partial degree in hip flexion, there is functional use
              of the left lower limb at the knee, ankle and foot. While it is
              noted in the report of Dr. Hochman that Mr. Gwiazda has no
              active flexion or extension of the hip or knee, both my
              examination and review of the records, as discussed in the
              history section of this report, reveals that he does have good
              knee and ankle extension and flexion although there is
              significant weakness of the gluteal/hip girdle muscles with
              partial hip flexor activation. Although his performance is
              variable on my examination, there is definite ability to
              activate and use the left knee, ankle, and foot, and a partial
              ability to use the left hip flexors, to change positions, bear
              weight at times and assist during position changes, standing,
              and ambulation. While there is partial impairment of the left
              lower limb, there is not a total loss of use of the left lower
              limb in this individual.

       {¶ 20} 6. The record before the commission includes the October 1, 2014 report
of Eli Fink, M.D., prepared to assist the commission in its consideration of maximum
medical improvement, permanent partial impairment, and PTD. Dr. Fink found that
relator had significant left hip girdle weakness, that his "left knee has been
asymptomatic since * * * 2010," that he "ambulates with a very forward-flexed posture
* * * dragging the left leg," and that his "[q]uadriceps strength is 4+ on the left, 5 on the
No. 15AP-882                                                                           10


right," and "[a]nkle dorsiflexion and plantar flexion strength is normal." Dr. Fink
assessed a 60 percent whole person impairment for relator's hip.
      {¶ 21} 7. Following the denial of the motion by a district hearing officer ("DHO"),
a hearing was held before a staff hearing officer ("SHO") on April 28, 2015. The SHO
relied on the report of Dr. Larsen and denied relator's motion, stating:
             The Staff Hearing Officer affirms the District Hearing
             Officer's DENIAL of the request for payment for LOSS OF
             USE OF THE LEFT LOWER EXTREMITY. This order
             relies on the report and opinion of Teresa Larsen, D.O. Dr.
             Larsen indicates that the Injured Worker appears to balance
             himself with the left lower leg while using his walking during
             limited daily activities. She also reports functional use of the
             left ankle and knee. Dr. Larsen also observed the Injured
             Worker pushing himself up on the exam table by actively
             flexing the hip and flexing and extending the knee and ankle
             and similarly while changing position to his side.

(Emphasis sic.)

      {¶ 22} 8. Relator's further appeal was refused by order of the commission mailed
May 20, 2015.
      {¶ 23} 9. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
      {¶ 24} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
      {¶ 25} 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).
      {¶ 26} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief
sought and that the commission has a clear legal duty to provide such relief. State ex
rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
No. 15AP-882                                                                           11


entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse
of discretion and mandamus is not appropriate.         State ex rel. Lewis v. Diamond
Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the
weight to be given evidence are clearly within the discretion of the commission as fact
finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 27} Relator asserts that all of the medical evidence establishes that he has lost
the use of his left lower extremity for all practical purposes and Dr. Larsen failed to
apply this standard. Relator argues that the only purpose his left leg now serves is for
balance, stating: "Just as if Relator's leg was amputated and replaced with a prosthetic,
he is able to balance on it but not be afforded any functionality beyond that ability to
balance." (Relator's Brief, 11-12.)
       {¶ 28} 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.
       {¶ 29} 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.
No. 15AP-882                                                                         12


       {¶ 30} 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.
       {¶ 31} 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.
       {¶ 32} Alcoa filed a mandamus action which this court denied. Alcoa appealed as
of right to the Supreme Court of Ohio.
       {¶ 33} 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
No. 15AP-882                                                                      13


             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
             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 * * *."

      {¶ 34} In denying him a loss of use award, the commission specifically relied on
the independent medical evaluation of Dr. Larsen who specifically noted as follows in
her physical examination:
             Passive range of motion of the left hip reveals normal motion
             in all planes. There is no thigh or leg muscle atrophy. * * *
             Examination of the left knee reveals full extension and
             flexion without discomfort. * * * There is no joint tenderness,
             effusion, or instability. * * * Motor strength testing is limited
             by voluntary effort, as he initially did not perform any
No. 15AP-882                                                                            14


              motion at the hip, knee, or ankle when requested. However,
              after discussion that it was noted that prior examiner's had
              documented motion and strength in these areas, he
              demonstrated 4/5 strength at the knee extensors, 5/5 at the
              ankle dorsiflexors, and brief but good strength (he was able
              to provide good resistance to manual muscle testing but
              briefly and at partial range) at the hip flexors. * * * He is
              observed to use the left lower limb to push himself up along
              the exam table by actively flexing the hip and flexing and
              extending the knee and ankle and similarly while changing
              positions to side lying. He ambulates with use of a walker,
              swinging the left leg through with touch down weight bearing
              on the left foot and appeared to be avoiding putting weight
              through the left leg on direct examination. On indirect
              observation as he entered the examination room and left the
              office, it is noted that he did shift his weight through the left
              hip and weight bear equally at times through the left leg and
              foot while wearing an AFO.

       {¶ 35} Dr. Larsen noted further:
              While it is noted in the report of Dr. Hochman that Mr.
              Gwiazda has no active flexion or extension of the hip or knee,
              both my examination and review of the records, as discussed
              in the history section of this report, reveals that he does have
              good knee and ankle extension and flexion although there is
              significant weakness of the gluteal/hip girdle muscles with
              partial hip flexor activation. Although his performance is
              variable on my examination, there is definite ability to
              activate and use the left knee, ankle, and foot, and a partial
              ability to use the left hip flexors, to change positions, bear
              weight at times and assist during position changes, standing,
              and ambulation.

       {¶ 36} Contrary to Dr. Hochman's report, Dr. Larsen found that relator had full
knee and ankle extension and flexion, had the ability to activate and use the left knee,
ankle, and foot, had partial ability to use his left hip flexors, and had a lack of thigh/leg
muscle atrophy. Further, Dr. Larsen noted that, on indirect examination, relator shifted
his weight through his left hip and bore weight equally at times through the left leg and
foot while wearing an AFO. The magistrate finds that Dr. Larsen did not misapply the
Alcoa standard.
No. 15AP-882                                                                             15


       {¶ 37} Although relator asserts that all of the evidence shows that he is only able
to use his left leg to help him balance, Dr. Larsen's report indicates that relator is able to
use his left leg more than just to provide balance. Further, Dr. Larsen found that he had
full use of his left knee and ankle. To the extent that relator points to Dr. Fink's report,
his report supports some of Dr. Larsen's findings and contradicts others. There is no
dispute here that relator has a significant loss of use of his left lower extremity. Relator
requires a walker in order to ambulate. According to Dr. Larsen, relator is able to move
his left leg, bear weight on his left leg, and push himself up by actively flexing his hip
and flexing and extending his knee and ankle.           Although relator asserts that the
commission required him to demonstrate that the leg was completely useless, with no
functionality whatsoever, the magistrate disagrees.
       {¶ 38} Credibility and the weight to be given evidence are within the discretion of
the commission as fact finder and it is immaterial whether other evidence, even if
greater in quality and/or quantity, supports a decision contrary to the commission's.
Teece; State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373 (1996). Because
there is some evidence in the record to support the commission's determination, relator
has not demonstrated that the commission abused its discretion.
       {¶ 39} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion in denying his motion for total
loss of use of his left lower extremity and this court should deny relator's request for a
writ of mandamus.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA


                                 NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
              unless the party timely and specifically objects to that factual
              finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
