[Cite as State ex rel. Polyone Corp. v. Indus. Comm., 2014-Ohio-1376.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. PolyOne Corporation,                     :

                 Relator,                              :

v.                                                     :                 No. 12AP-313

The Industrial Commission of Ohio                      :            (REGULAR CALENDAR)
and Glenn R. Evans/Twyla Evans,
                                                       :
                 Respondents.
                                                       :




                                         D E C I S I O N

                                     Rendered on March 31, 2014


                 Reminger Co., L.P.A., Martin T. Galvin, and Marianne
                 Barsoum Stockett, for relator.

                 Michael DeWine, Attorney General, and Colleen C. Erdman,
                 for respondent The Industrial Commission of Ohio.

                 Wincek & DeRosa Co., LPA, Joseph C. DeRosa, and Daryl
                 Gagliardi, for respondent Twyla Evans.

                 Vorys, Sater, Seymour and Pease LLP, and Robert A. Minor,
                 Amicus Curiae Ohio Self-Insurers Association.

                 Philip J. Fulton Law Office, Philip J. Fulton, and Chelsea J.
                 Fulton, Amicus Curiae Ohio Association of Claimants'
                 Council.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
No. 12AP-313                                                                             2


BROWN, J.
       {¶ 1} In this original action, relator, PolyOne Corporation, seeks a writ of
mandamus from this court ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order awarding respondent, Twyla Evans ("respondent"),
the surviving spouse of Glenn R. Evans ("decedent"), scheduled loss compensation for
decedent's loss of use of both arms and legs, and to enter an order denying said
compensation.
       {¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate who issued the appended decision,
including findings of fact and conclusions of law, recommending that this court deny
relator's request for a writ of mandamus. The magistrate determined there was some
medical evidence to support the commission's finding that decedent's loss of use of his
four extremities was permanent rather than temporary, and that there was some medical
evidence upon which the commission relied showing that the allowed condition,
angiosarcoma, independently caused the permanent loss of decedent's four extremities.
       {¶ 3} Relator has filed objections to the magistrate's decision, arguing that R.C.
4123.57(B) does not authorize the benefits sought in this case. Relator contends that the
language of that statute does not support an award for partial disability compensation for
the loss of use of decedent's arms and legs while in a coma for a short period of time
preceding his death; relator maintains that the decedent's failure to survive his comatose
condition does not mean his loss of use of limbs was permanent. In support, relator relies
upon this court's decision in State ex rel. Carter v. Indus. Comm., 10th Dist. No. 09AP-
30, 2009-Ohio-5547.
       {¶ 4} In Carter, a worker suffered a gunshot wound while employed as a
nightclub bouncer, and doctors amputated his right leg.            Medical complications
developed, and medical personnel sedated and chemically paralyzed the patient as part of
the course of treatment, but he died while in the hospital. The relators (his dependents)
subsequently filed a claim for scheduled loss compensation for the loss of use of his upper
and lower extremities, arguing that the induced paralysis caused a loss of use which
became permanent upon his death. The commission awarded loss of use compensation
for his amputated right leg, but denied loss of use compensation for his upper extremities
No. 12AP-313                                                                              3


and left leg. In Carter, the magistrate concluded that the chemically induced paralysis to
the employee's left leg and upper extremities was not permanent and, therefore, found no
abuse of discretion by the commission. The relators filed objections to the magistrate's
decision. In Carter, this court overruled the relator's objections, holding in part that the
evidence indicated that the "decedent's induced paralysis was a temporary measure
designed to aid in his recovery," and that there was "no evidence that, but for decedent's
death, the paralysis would have been permanent." Id. at ¶ 5.
       {¶ 5} In the present case, the magistrate analyzed the decision in Carter, and
found relator's reliance upon that case to be misplaced. Specifically, the magistrate noted
that, unlike the injured worker in Carter, decedent's loss of use was not chemically
induced or therapeutic, but, rather, the "natural consequence of his angiosarcoma." Thus,
in contrast to the temporary paralysis of the employee in Carter, decedent's loss of use
was permanent because it was expected to last, and did last, until his death. We agree
with the magistrate that the decision in Carter is distinguishable and does not preclude an
award of benefits under R.C. 4123.57(B).
       {¶ 6} Relator's objections also challenge the award under R.C. 4123.57(B) on the
grounds that (1) decedent was comatose immediately prior to death and, therefore,
unaware of his injury, and that (2) his "purported loss of use" only occurred over a course
of a few days. We conclude, however, that the magistrate did not err in finding that the
staff hearing officer properly applied the Supreme Court of Ohio's holding in State ex rel.
Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364. In Moorehead, an
employee fell 15 to 20 feet onto a concrete floor and suffered a severe spinal cord injury;
he lived for approximately 90 minutes, but never regained consciousness and was never
aware that he had been rendered a quadriplegic. The commission denied the widow's
application for loss of use benefits, but the Supreme Court subsequently allowed the writ
and remanded for a determination of benefits, holding in part that "R.C. 4123.57(B) does
not specify a required length of time of survival after a loss-of-use injury before benefits
pursuant to R.C. 4123.57(B) are payable." Id. at ¶ 14. The Supreme Court also made clear
"there is no language in R.C. 4123.57(B) requiring that an injured worker be consciously
aware of his paralysis in order to qualify for scheduled loss benefits."       Id. at ¶ 16.
Accordingly, the commission did not abuse its discretion in applying Moorehead to find
No. 12AP-313                                                                                               4


that R.C. 4123.57 does not require an injured worker to be cognizant of his loss of use, nor
does that decision support relator's duration of survival argument.1
        {¶ 7} Relator challenges the medical evidence in the record, and points to the
opinion of its medical expert Dr. Joseph Buell. The magistrate, however, found relator's
reference to Dr. Buell's report "problematic" in light of the fact the commission did not
rely upon it, and that such report was directly contradicted by the reports of Drs. Matthew
Levy and Kevin Trangle. The magistrate further noted that the reports of Drs. Levy and
Trangle "could not be clearer" that the allowed condition, angiosarcoma, independently
caused the loss of use of all four extremities. The magistrate adequately addressed the
medical evidence, and for the reasons set forth, relator's objection as to that issue is not
persuasive.
        {¶ 8} Relator further contends the magistrate failed to consider the legislative
intent of R.C. 4123.57, arguing that the award for loss of use benefits in the instant case
essentially represents additional death benefits already provided for the surviving spouse
under R.C. 4123.59.          More specifically, relator maintains that benefits under R.C.
4123.57(B) are only intended to compensate for an injured worker's presumed loss of
earning capacity.
        {¶ 9} Relator's contention that an award for loss of use benefits under R.C.
4123.57(B) is duplicative of a death benefit award under R.C. 4123.59 is unpersuasive. It
has been noted that the intent of R.C. 4123.59 is to compensate dependents for the "loss of
support" resulting from the employee's death. Fulton, Ohio Workers Compensation
Section 11.3 at 531 (4th Ed.2011). By contrast, "benefits for partial disability are more
akin to damages for work-related injuries." State ex rel. Gen. Motors Corp. v. Indus.
Comm., 42 Ohio St.2d 278, 282 (1975). See also State ex rel. Miller v. Indus. Comm., 97
Ohio St.3d 418, 2002-Ohio-6664, ¶ 12 ("partial disability benefits have been compared to
damages and are awarded irrespective of work capacity"); State ex rel. Dudley v. Indus.
Comm., 135 Ohio St. 121, 125 (1939) (noting scheduled compensation for loss of the sight


1 We note that relator has filed, as supplemental authority, a recent decision by the Supreme Court, State ex

rel. Smith v. Indus. Comm., ___ Ohio St. ___, 2014-Ohio-513. Smith, however, involves scheduled loss
benefits for loss of sight and hearing, rather than loss of use of extremities, and the Smith court does not
discuss (or overrule) its decision in Moorehead.
No. 12AP-313                                                                                                  5


of an eye is "arbitrarily fixed, and has nothing whatever to do with impairment of earning
capacity").
        {¶ 10} Relator also asserts that the award was impermissible under Ohio
Adm.Code 4123-3-15(C)(4), arguing that a surviving spouse is only entitled to
compensation if the award was made prior to the death of the injured worker. We
disagree.
        {¶ 11} Ohio Adm.Code 4123-3-15(C)(4) states in relevant part: "Where an award
under division (B) of section 4123.57 of the Revised Code has been ordered but not paid
prior to the death of an employee, upon application, the award is payable to the surviving
spouse." While this administrative code provision addresses an award ordered "prior to
the death of an employee," it does not address (nor does it preclude) an application made
by a dependent after the death of an employee. R.C. 4123.60, however, states in part:
                 If the decedent would have been lawfully entitled to have
                 applied for an award at the time of his death the administrator
                 may, after satisfactory proof to warrant an award and
                 payment, award and pay an amount, not exceeding the
                 compensation which the decedent might have received, but
                 for his death, for the period prior to the date of his death, to
                 such of the dependents of the decedent, or for services
                 rendered on account of the last illness or death of such
                 decedent, as the administrator determines in accordance with
                 the circumstances in each such case.

        {¶ 12} Here, as noted by the commission, because decedent would have been
entitled to have applied for a scheduled loss award at the time of his death, his surviving
spouse was entitled to apply for benefits to which he was entitled.2 Thus, relator's
objection asserting that Ohio Adm.Code 4123-3-15(C)(4) precludes the surviving spouse
from recovering benefits in the instant case is not well-taken.


2 We note that amicus curiae, Ohio Self-Insurer's Association, argues that respondent (surviving spouse)
should only be granted loss of use benefits for the period during which decedent experienced loss of use
while alive, i.e., the four days prior to his death. The parties, however, did not raise that argument before
either the commission or magistrate. See Lakewood v. State Emp. Relations Bd., 66 Ohio App.3d 387, 394
(8th Dist.1990) ("Amici curiae are not parties to an action and may not, therefore, interject issues * * * not
raised by parties"). (Emphasis sic.) In any event, such issue would not appear ripe for review. The
commission itself maintains it did not mandate the payment of 850 weeks of scheduled loss payments,
noting the order of the staff hearing officer indicates: "[p]ayment to be made and processed per statute" (i.e.,
including the terms of R.C. 4123.60).
No. 12AP-313                                                                            6


      {¶ 13} Based upon this court's independent review, we overrule relator's objections
and adopt the magistrate's findings of fact and conclusions of law. In accordance with the
magistrate's decision, we deny the requested writ of mandamus.
                                        Objections overruled; writ of mandamus denied.

                             CONNOR and DORRIAN, JJ., concur.

                                  ___________________
[Cite as State ex rel. Polyone Corp. v. Indus. Comm., 2014-Ohio-1376.]



                                             APPENDIX

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. PolyOne Corporation,                     :

                 Relator,                              :

v.                                                     :                 No. 12AP-313

The Industrial Commission of Ohio                      :            (REGULAR CALENDAR)
and Glenn R. Evans/Twyla Evans,
                                                       :
                 Respondents.
                                                       :



                              MAGISTRATE'S DECISION

                                       Rendered on April 5, 2013


                 Reminger Co., L.P.A., Martin T. Galvin and Marianne
                 Barsoum Stockett, for relator.

                 Michael DeWine, Attorney General, and Colleen C. Erdman,
                 for respondent The Industrial Commission of Ohio.

                 Wincek & DeRosa Co., LPA, Joseph C. DeRosa and Daryl
                 Gagliardi, for respondent Glenn R. Evans/Twyla Evans.


                                             IN MANDAMUS

        {¶ 14} In this original action, relator, PolyOne Corporation ("relator" or
"PolyOne") requests a writ of mandamus ordering respondent Industrial Commission of
Ohio ("commission") to vacate its order awarding to respondent Twyla Evans, the
surviving spouse of Glenn R. Evans ("Evans" or "decedent"), R.C. 4123.57(B) scheduled
No. 12AP-313                                                                             2


loss compensation for decedent's loss of use of both arms and legs, and to enter an order
denying the compensation.
Findings of Fact:
       {¶ 15} 1. Until his retirement in 1994, Evans was employed for many years as a
laborer by PolyOne or its predecessor. During his employment, Evans was exposed to
vinyl chloride.
       {¶ 16} 2. In July 2010, Evans underwent a CT of his chest and mediastinum. He
later underwent an MRI.        Following a CT-guided biopsy of the liver, Evans was
diagnosed with hepatic angiosarcoma. Chemotherapy treatment began in early August
2010. Vinyl chloride exposure is widely known to cause hepatic angiosarcoma.
       {¶ 17} 3. In October 2010, Evans filed a workers' compensation claim on a form
captioned "First Report of an Injury, Occupational Disease or Death" ("FROI-1"). On
the form, Evans alleged an "[o]ccupational exposure to vinyl chloride resulting in
angiosarcoma of the liver." August 5, 2010 was listed as the injury date.
       {¶ 18} 4. In late October 2010, PolyOne, a self-insured employer, certified the
industrial claim (No. 10-848253) for "angiosarcoma."
       {¶ 19} 5. The commission officially recognizes the claim for "angiosarcoma." The
commission recognizes the injury date as August 5, 2010, which apparently
approximates the date of diagnosis.
       {¶ 20} 6. On July 8, 2011, Evans died. On the certificate of death, "angiosarcoma
liver" is given as the cause of death. The death certificate was completed and certified by
attending physician Poornanand Palaparty, M.D.
       {¶ 21} 7. Earlier, on July 4, 2011, Evans was examined at his home in the
presence of his wife, daughter, and counsel, by orthopedic surgeon Matthew E. Levy,
M.D.
       {¶ 22} 8. On July 5, 2011, Dr. Levy wrote:
               I performed an examination of patient Glenn Evans last
               night in regards to his diagnosis of angiosarcoma. I found
               that as of 11:15 p.m. 07/04/2011, he had lost all use of both
               arms and both legs.
No. 12AP-313                                                                            3


       {¶ 23} 9. On July 5, 2011, Evans moved for R.C. 4123.57(B) scheduled loss
compensation for the alleged loss of use of both arms and legs. In support, Evans
submitted the July 5, 2011 report of Dr. Levy.
       {¶ 24} 10. On August 12, 2011, a commission hearing officer mailed an ex-parte
order finding that Evans' industrial claim was abated by his death.
       {¶ 25} 11. On August 17, 2011, Twyla Evans filed an R.C. 4123.59 death claim on
the FROI-1 form.
       {¶ 26} 12. Following a November 21, 2011 hearing, a district hearing officer
("DHO") issued an order allowing the death claim.
       {¶ 27} 13. Relator administratively appealed the DHO's order of November 21,
2011 allowing the death claim.
       {¶ 28} 14. Following a January 20, 2012 hearing, a staff hearing officer ("SHO")
issued an order allowing the death claim, but modifying the DHO's order of
November 21, 2011. The SHO's order of January 20, 2012 provides in part:
               It is found that the decedent's spouse, Twyla Evans, born on
               01/16/1936, was wholly dependent upon the decedent for
               support at the time of death, and that she is entitled to
               weekly benefits in the amount of $748.53.

       {¶ 29} 15. The record fails to disclose whether the January 20, 2012 order of the
SHO allowing the death claim was administratively appealed. Presumably, Twyla Evans
is currently receiving weekly benefits under R.C. 4123.59 as a surviving spouse who was
wholly dependent upon decedent at the time of his death.
       {¶ 30} 16. Earlier, on July 27, 2011, Dr. Levy issued a seven-page narrative report
based in part on his July 4, 2011 examination of Evans at his home. In his report, Dr.
Levy states:
               Mr. Evans is being evaluated in conjunction with his
               development of angiosarcoma, his current status and for
               determination of loss of use of certain appendages and
               faculties.

               ***
No. 12AP-313                                                                   4


               CURRENT COMPLAINTS

               I was called to evaluate Mr. Evans in his home on
               07/04/2011 at 2315 hours. Mr. Evans was evaluated in the
               presence of his wife, his daughter and counsel, Mr. Joseph
               DeRosa. At the time of evaluation, Mr. Evans was unable to
               provide me with any history.
               The history was provided by his wife and daughter who note
               that his condition has taken a precipitous turn for the worst
               today. He was unable to get out of bed, unable to feed
               himself, and unable to even participate in his own care and
               hygiene. He was noted to be moaning in discomfort
               throughout the entirety of my evaluation.

               The remainder of the history was gleaned from the medical
               records.

               PHYSICAL EXAMINATION:

               On the physical evaluation, Mr. Evans was found to be in an
               obtunded state. He was minimally arousable and he had
               rattling respirations. He had a very limited response even to
               noxious stimuli. His color was poor[.]

               Examination of his upper and lower extremities revealed
               pitting edema within the lower extremities, pale coloration
               throughout the extremities, no volitional movement and
               minimal withdrawal even to noxious stimuli.

               I was able to document full passive range of motion in both
               shoulders, elbows, wrists and fingers in the upper
               extremities; and hips, knees, ankles and toes in the lower
               extremities. However, he exhibited no tone in any of the
               above-mentioned extremities.

               Reflexes were symmetrically diminished in both upper and
               lower extremities. Pathologic reflexes such as Babinski's and
               Hoffman signs were not observed.

               There was no obvious response of the individual to speech, to
               noises or to the environment from an auditory perspective.
               Similarly, he did not open his eyes, show any meaningful
               visual interaction with his environment, track movements or
               for all intents and purposes, show that he had any vision
               perception of his surroundings.
No. 12AP-313                                                                      5


               ASSESSMENT:

               Based upon review of the history and physical examination,
               medical records and all enclosed documentation, the
               following opinions are offered with a reasonable degree of
               medical certainty.

               ***

               Diagnoses include:

               a) Dependent edema;
               b) Angiosarcoma;
               c) Fatigue;
               d) Leg weakness;
               e) Elevated liver function tests;
               f) Anemia;
               g) Gastroesophageal reflux disease;
               h) Malnutrition;
               i) Status post congestive heart failure;
               j) Hearing loss;
               k) Cardiac mumur;
               l) Loss of use of all four extremities;
               m) Loss of vision;
               n) Loss of hearing

               At the time that he was evaluated, Mr. Glenn Evans was a 74-
               year-old gentleman with a diagnosis of angiosarcoma of the
               liver, a result of an occupational environmental exposure
               sustained in the course of his employment. The diagnosis of
               angiosarcoma was confirmed through the pathology
               department at Cedar Sinai Medical Center in October 2010
               by Steven Geller. Before I had evaluated him, Mr. Evans was
               found also to have a medical history of congestive heart
               failure, hypertension, reflux and anorexia, among his other
               conditions.

               I was called to evaluate Mr. Evans in his home on
               07/04/2011 at 2315 hours. Mr. Evans was evaluated in the
               presence of his wife, his daughter and counsel, Mr. Joseph
               DeRosa. At the time of evaluation, Mr. Evans was unable to
               provide me with any history.

               Coma is defined as a profound state of deep
               unconsciousness. It affects any individual's ability to interact
               with the surrounding environment. In this particular case it
No. 12AP-313                                                                      6


               is the direct sequelae of the obfundation and deep
               unconsciousness caused by his progress fatal cancer. The
               cancer caused a cascade of events leading to metabolic
               derangement, lack of oxygenation and in general lack of the
               necessary physiologic mechanisms sufficient to sustain
               conscious awareness and bodily function.

               It is academic where one draws the line in terms of what sort
               of responses a patient has to certain stimuli. Mr. Evans was
               not noted to have any voluntary responses. In fact, he was
               incapable of any response at all to his surrounding
               environment. Except for the rare response to noxious
               stimuli, he was not interactive with his environment.

               The patient does have permanent loss of use of various body
               parts as statutorily determined. Mr. Evans had no functional,
               meaningful or volitional use of either of his arms or legs. All
               four limbs can be considered to have no functional use. For
               actual practical purposes he has permanently lost the use
               through the central nervous system dysfunction he has of
               any extremity movement or activity.

               Similarly, at the point in time I saw him, his eyes remain
               closed. He did not respond to stimuli. He did not track or
               follow and had for all intents and purposes no intentional
               volitional vision use. This would apply to bilateral use of both
               eyes.

               In regards to his hearing, there was no response to hearing
               or noise. He did not respond to commands. It was entirely
               conjectural if there was even any brain stem auditory
               response that was functioning. There was no conscious level
               of hearing, interpretation of sound or even a human
               response to noise stimuli.

               SUMMARY:

               Mr. Evans, at the time I saw him, suffered from the
               permanent conditions of loss of use of the following:

               [One] Right and left arms;
               [Two] Right and left legs;
               [Three] Vision comprehension in right and left eyes;
               [Four] Hearing comprehension in both the right and left
               ears.
No. 12AP-313                                                                           7


       {¶ 31} 17. On July 28, 2011, Twyla Evans, as surviving spouse, moved for R.C.
4123.57(B) scheduled loss compensation for decedent's alleged loss of use of both arms
and legs, vision and hearing. In support, Twyla Evans submitted her marriage certificate,
the death certificate, and the July 27, 2011 report of Dr. Levy.
       {¶ 32} 18. Following a September 27, 2011 hearing, a DHO issued an order
denying the July 28, 2011 motion of Twyla Evans. The DHO's order explains:
               Prior to a hearing on the merits, the surviving spouse's
               counsel withdrew the request for the SCHEDULED LOSS OF
               VISION COMPREHENSION IN BOTH EYES and
               SCHEDULE[D] LOSS OF HEARING COMPREHENSION IN
               BOTH EARS. Therefore, these requests are DISMISSED.

               On 07/08/2011, the decedent, Glenn Evans, died. Four days
               prior [to] his death, on 07/04/2011, the decedent lost
               consciousness and could no longer move his legs or arms.
               The surviving spouse is requesting the loss of use of both
               arms and both legs due to his drastic change in health on
               07/04/2011. The report of Dr. Levy dated 07/27/2011 is
               presented in support of this request.

               The District Hearing Officer finds that the medical evidence
               is insufficient to support the requested loss of use as being
               related to the allowed condition of ANGIOSARCOMA. Dr.
               Levy's own report lists the following diagnoses from his
               07/04/2011 examination: Dependent edema, Angiosarcoma,
               fatigue, leg weakness, elevated liver function tests, anemia,
               gastroesophageal reflux disease, malnutrition, status post
               congestive heart failure, hearing loss, cardiac murmur, loss
               of use of all four extremities, and loss of vision. Dr. Levy
               went on to indicate that the Injured Worker was in a coma,
               and noted that the Injured Worker had a medical history of
               congestive heart failure, hypertension reflux and anorexia.
               Dr. Levy does not sufficiently explain how the allowed
               condition of angiosarcoma directly caused the damage to the
               central nervous system that would then cause the loss of use
               of all four extremities, especially in light of other conditions
               the Injured Worker had. For these reasons, the District
               Hearing Officer finds that the surviving spouse has not met
               the requisite proof necessary to support a finding of a loss of
               use of the requested four extremities.
No. 12AP-313                                                                             8


               The District Hearing Officer has reviewed and considered all
               evidence prior to rendering this decision.

(Emphasis sic.)

      {¶ 33} 19. Twyla     Evans    administratively   appealed   the   DHO's    order   of
September 27, 2011.
      {¶ 34} 20. On November 3, 2011, at the request of counsel for Twyla Evans,
Kevin L. Trangle, M.D., issued a seven-page narrative report. Dr. Trangle wrote:
               DISCUSSION OF VINYL CHLORIDE-INDUCED HEPATIC
               ANGIOSARCOMA:
               Hepatic angiosarcoma (HAS) is an uncommon mesenchymal
               malignant neoplasm of the vascular or lymphatic
               endothelium, accounting for 2% of all soft tissue sarcomas.
               Angiosarcoma can affect any organ. Although primary HAS
               is rare and accounts for only 2% of primary hepatic tumors,
               it is the most common malignant mesenchymal tumor of the
               liver.

               Popper and colleagues, and Gedigt et al. have undoubtedly
               provided the greatest contribution in the study of the
               histogenesis and pathohistology of HAS. Vinyl chloride
               monomers (VCM) are transformed by hepatic microsomal
               enzymes to toxic metabolites that covalently bind to DNA.
               After exposure to VCM, hepatocytic proliferation, sinusoidal
               lining cell proliferation, and focal sinusoidal dilatation
               occurs; this process leads to angiosarcoma from the
               sinusoidal lining cells. In a typical histologic picture, there
               are wide vascular spaces and systems of anastomosed vessel
               canals lined with atypical endothelium, with marked
               sarcomatous stroma. Mr. Evans clearly had developed HAS
               secondary to his work related exposure to Vinyl Chloride.

               HAS progresses rapidly; therefore, most cases are discovered
               at an advanced stage, and less than 20% of the patients can
               even be conceivably helped by surgery. The lack of specific
               symptoms and radiological findings leads to the delay of
               diagnosis resulting in the poor prognosis. Only a few patients
               have been reported to survive for more than one year after
               hepatic resection for HAS. HAS usually develops in the sixth
               decade of life, and is more frequent in males than in females
               (ratio 3:1). Mr. Evans had a classic presentation of a work
               related HAS caused by VC exposure.
No. 12AP-313                                                                    9


               The prognosis of HAS is dismal. Most patients die within six
               months of the diagnosis. The most frequent causes of death
               are hepatic failure and intraabdominal bleeding. Fifty
               percent of patients develop metastases before death. Very
               few patients have limited tumor at the time of diagnosis to
               allow surgical resection.

               Hepatic Failure (HF) as a Consequence of Hepatic
               Angiosarcoma
               The liver is commonly involved in metastatic disease, and the
               degree of liver biochemistry derangement tends to reflect the
               extent of parenchymal replacement with tumor. Hepatic
               failure can develop as a consequence of primary or
               metastatic liver tumors. The mechanism of liver failure is
               multifactorial. Evidence suggests a combination of hepatic
               ischemia leading to parenchymal infarction, vascular
               occlusion of portal vein by tumor thrombi and non-occlusive
               infarction of liver due to shock from secondary causes such
               as sepsis or cardiac dysfunction plays an important role in
               these patients. Typically, replacement of hepatocytes by
               malignant cells leads to secondary necrosis of hepatocytes
               with the subsequent development of liver failure.

               Numerous authors have reported the development of HF in
               patients with HAS. As noted above, this is usually the
               terminal event associated with diffuse involvement of the
               liver by the HAS.

               One study conducted by Myszor et al. looked at the
               association and presentation of malignant disease of the liver
               with hepatic failure. The authors described three cases and
               reviewed the best documented reports in the literature. Their
               review of 25 patients showed that in most cases, the liver was
               massively replaced by tumor that often spread in an
               intrasinusoidal pattern and resulted in HF and subsequent
               death.

               Another study conducted by Dannaher et al. looked at 10
               workers from a single vinyl chloride polymerization plant in
               Louisville, Kentucky that developed HAS. Average survival
               from diagnosis was about 12 months. Overt liver failure
               occurred as a preterminal event and was the major cause of
               death in all of the patients.

               Baxter et al. studied 35 cases of HAS occurring in Great
               Britain. The most common terminal event in these patients
No. 12AP-313                                                                    10


               was liver failure and its attendant complications. The
               duration of symptoms preceding admission to hospital was
               known for over 30 cases. The median time was about five
               weeks. The length of survival after admission was known for
               all adults, the median time being three weeks. Only three
               cases lived beyond six months after admission to hospital.
               The two patients with the shortest duration of symptoms
               died from hemoperitoneum.

               In addition to the neoplasm itself, treatment with various
               chemotherapeutic agents can contribute to further injury to
               the liver. Gemcitabine represents one of these agents and it
               has been shown to be hepatotoxic.

               Hepatic Encephalopathy and Coma
               Hepatic encephalopathy is defined as a spectrum of central
               nervous system abnormalities in patients with liver
               dysfunction, after exclusion of other known brain disease.
               Hepatic encephalopathy is characterized by personality
               changes, intellectual impairment, and a depressed level of
               consciousness. The development of hepatic encephalopathy
               is explained to a large extent by the effect of neurotoxic
               substances which accumulate as a result of liver failure;
               additionally brain edema plays a prominent role. The brain
               edema of hepatic failure is attributed to increased
               permeability of the blood-brain barrier, impaired
               osmoregulation within the brain, and increased cerebral
               blood flow. The resulting brain cell swelling and brain edema
               cause loss of consciousness and eventually death.

               Typically, patients subsequently become hypotensive and
               tachycardic as a result of the reduced systemic vascular
               resistance that accompanies hepatic failure, a pattern that is
               indistinguishable from septic shock. The combination of
               cerebral edema with resulting increased intracranial
               pressure and systemic hypotension leads to coma and then
               death.

               Gastrointestinal bleeding can also contribute to the
               development of hepatic encephalopathy. The presence of
               blood in the upper gastrointestinal tract results in increased
               ammonia and nitrogen absorption from the gut. Bleeding
               may predispose to kidney hypoperfusion and impaired renal
               function. These metabolic consequences lead to increased
               toxic ammonium levels in the blood and even further
No. 12AP-313                                                                       11


               depression of central nervous system function, loss of
               consciousness and death.

               ANALYSIS AND OPINION:
               In the case at hand, Mr. Evans was diagnosed and treated for
               vinyl chloride-induced hepatic angiosarcoma. He ultimately
               died on 07/08/2011. His death certificate lists angiosarcoma
               of the liver as his cause of death.

               He was initially diagnosed with hepatic angiosarcoma by CT-
               guided needle biopsy in July of 2010. He underwent
               chemotherapy with Taxol, Sorafenib and gemcitabine. He
               was admitted for liver failure following treatment with
               gemcitabine. Dr. Palaparthy [sic] noted he had edema in
               both legs, shortness of breath and icterus. He had elevated
               liver enzymes including elevated bilirubin, ALT/AST and
               alkaline phosphatase. His total protein and albumin were
               significantly diminished and he had evidence of
               pancytopenia. He experienced a typical side effect of
               chemotherapy; namely toxic deterioration of liver function.

               He subsequently had two episodes of intra-abdominal
               hemorrhage requiring embolization of the hepatic artery and
               blood transfusions.

               His most recent abdominal CT demonstrated extensive
               neoplastic infiltration of the liver with extracapsular spread
               of disease and ascites. There was extensive free fluid noted
               surrounding the liver, spleen and extending in the
               mesenteric which was likely hemorrhagic.

               He ultimately developed fulminant hepatic failure as a direct
               result of the extensive neoplastic infiltration of his liver. The
               repeated intraperitoneal hemorrhages and chemotherapy
               also contributed to his encephalopathy. The hemorrhages
               undoubtedly also led to increased blood ammonia levels. The
               chemotherapeutic agents, particularly gemcitabine, caused
               hepatic injury which contributed to the development of liver
               failure.

               The medical literature supports this as the most common
               pre-terminal event in patients suffering from hepatic
               angiosarcoma. The liver failure led to the development of
               hepatic encephalopathy which progresses to hepatic coma
               and death.
No. 12AP-313                                                                    12


               While suffering from hepatic encephalopathy and profound
               central nervous system depression and loss of consciousness,
               he completely lost the ability to use his upper and lower
               extremities as well as his ability to hear and see. This was a
               direct result of a combination of the build-up of neurotoxic
               substances, cerebral edema with increased intracranial
               pressure, and cerebral ischemia. His level of consciousness
               progressively and rapidly diminished to the point of coma.

               SUMMARY/CONCLUSION:
               Mr. Evans' condition of hepatic encephalopathy as noted
               above resulted from a combination most likely of liver failure
               with toxic metabolites circulating in the blood stream and
               spilling over into the central nervous drainage system and
               brain fluids due to the abnormal permeability of the blood-
               brain barrier secondary to his cancer; additionally the same
               process of his cancer progression led to cerebral edema.

               Additionally, it is likely that Mr. Evans also had some degree
               of cerebral bleeding as the liver is directly responsible for
               producing coagulation factors as part of the coagulation
               cascade that prevents an individual from having abnormal
               bleeding and in particular intercerebral bleeding.

               This sequence of events in Mr. Evans was an inexorable,
               ongoing, worsening situation that had no available
               treatment. It was undoubtedly a progressive and permanent
               condition which advanced to the point of his death. There
               was no temporary, transient or conditional aspect to his
               cerebral encephalopathy, central nervous system depression
               and coma.

               To explain it perhaps more succinctly, the combination of
               encephalopathy, cerebral edema and bleeding directly
               caused a profound central nervous system depression.
               Profound central nervous system depression is called coma
               where there is a loss of consciousness. In addition to loss of
               consciousness there is also loss of use of the extremities as
               the central nervous system from the brain does control the
               other parts of the central nervous system including the spinal
               cord which mediates the function and motion of the
               extremities. As Mr. Evans' level of central nervous system
               depression became more deeply affected and his coma
               continued to permanently deepen, he had permanent loss of
               use of his extremities.
No. 12AP-313                                                                     13


               The reason the terminology permanency is used in this
               context is simply that unlike a medically induced coma for
               treatment purposes, loss of consciousness due to central
               nervous system depression (defined as coma) and loss of use
               of extremities, are ongoing and irreversible processes with
               any type of malignancy such as hepatic angiosarcoma where
               there is no available treatment. The lack of viable treatment
               alternatives for Mr. Evans had already been proven and
               accepted. His development of coma and loss of use of his
               extremities was a one-way street with unfortunately no
               available or known medical intervention that could reverse
               this process.

               In short his permanent loss of use of his extremities was a
               direct result of the combination of the buildup of neurotoxic
               substances, cerebral edema, increased intracranial pressure,
               cerebral ischemia and most likely even cerebral bleeding.
               This was an irreversible, permanent progression of events
               that led to coma which is the definition of profound central
               nervous system depression with loss of consciousness; and
               with concomitant inability to use his extremities on a
               permanent basis. Ultimately, the cerebral pressure and other
               noted factors built up to the point that the brain stem was
               almost certainly compressed to the point that he could no
               longer breathe and this resulted in his ultimate demise. All of
               these conditions; buildup of neurotoxic substances, cerebral
               edema, increased intracranial pressure, cerebral ischemia
               and     cerebral     bleeding,   hepatic     failure, hepatic
               encephalopathy, central nervous system depression, and
               resultant permanent loss of use of his upper and lower
               extremities are physical manifestations that are the direct
               result of the allowed claim for hepatic angiosarcoma.

               In my medical opinion, and expressed with a reasonable
               degree of medical certainty, Mr. Evans succumbed and died
               secondary to his work-related hepatic angiosarcoma, a claim
               already allowed, and a cause of death also affirmed on his
               death certificate. Furthermore, his pre-terminal state
               resulted from the angiosarcoma which irreversibly and
               permanently depressed the central nervous system leading to
               the level of depression which resulted in permanent loss of
               use of his upper and lower extremities.
No. 12AP-313                                                                                                14


        {¶ 35} 21. On November 17, 2011,3 at the request of relator, Joseph F. Buell, M.D.,
issued a two-page narrative report. Dr. Buell is a professor of surgery and pediatrics at
Tulane University located at New Orleans, Louisiana. In his report, Dr. Buell opines:
                 I am in receipt and have reviewed the medical records of Mr.
                 Glen[n] Evans. Mr. Evans was a retired Poly[O]ne worker
                 who was diagnosed with angiosaroma of the liver. I was
                 provided medical records for Mr. Evans, which noted his
                 polyvinyl exposure and identified a distant history of
                 smoking. After diagnosis of angiosarcoma was made, Mr.
                 Evans was started on a T1 inhibitor, and later treated with
                 taxol, gemcitabine and eventually gemzar chemotherapy.
                 The records noted he developed congestive heart failure
                 during this time frame. This claim is not supported by the
                 medical evidence which demonstrated his cardiac function
                 measure by ejection fraction was normal as measured by
                 cardiac ECHO. An initial occupational medical exam was
                 performed by Dr. Darr on 4/11/11 which reported Mr. Evans
                 as "fatigued." At this time Dr. Darr opinioned that Mr. Evans
                 had Class III impairment.

                 Subsequently, in June of 2011 Mr. Evans presented to the
                 emergency room with a rupture of his liver tumor. This was
                 treated with a radiologic procedure to clot the bleeding.
                 Often radiologic treatment of a liver tumor clots blood flow
                 to the tumor as well as the normal uninvolved liver. After
                 extensive chemotherapy and a delayed treatment of his
                 tumor after rupture Mr. Evans suffered liver
                 decompensation. Mr. Evans was examined by an orthopedic
                 surgeon who claimed four extremity disabilities.

                 After review of Mr. Evans medical records and my extensive
                 clinical experience with liver disease and management of
                 liver tumors and particularly angiosarcoma, I have
                 formulated the following medical opinions:

                 [One] There are some concerning irregularities in the
                 opinions and management of Mr. Evans by his physicians
                 during his care and hospitalizations. As examples there is
                 lack of clinical data i[.]e[.] cardiac ECHO, to support his
                 medical diagnosis of congestive heart failure and as another



3The report of Dr. Buell is incorrectly dated "November 17, 2010." It is obvious that the report is incorrectly
dated.
No. 12AP-313                                                                     15


               example Mr. Evans did not receive local therapy to prevent
               tumor rupture.

               [Two] Mr. Evans became encephalopathic (unconscious) due
               to hepatic failure. To physicians unfamiliar with the
               manifestations of liver disease and decompensated liver
               patients it might appear that they suffered irreversible
               damaged [sic] of the central nervous system, but this is
               purely a reversible condition. Noting again there was no
               permanent injury resulting in loss of all four extremities.
               Neither the agiosarcoma nor the treatment of the
               angiosarcoma can cause permanent damage to the central
               nervous system. More often than not this state of
               encephalopathy is completely reversible with appropriate
               medical therapy. In no way did Mr. Evans ever permanently
               lose function of all four of his extremities.

               [Three] An orthopedic surgeon (bone surgeon) has limited
               knowledge and experience with liver failure patients let alone
               management of hepatic encephalopathy. It is my opinion
               that this was a flawed opinion due to the physician's lack of
               knowledge.

               [Four] Lastly, I have reviewed the summary report from Dr.
               Trangle who quotes several historic papers. What is not
               presented is the full spectrum of patient with long-term
               survival. Several series document that when patients receive
               aggressive therapy they can survive 2 to 3 years. I again
               reiterate Mr. Evans suffered from hepatic encephalopathy
               and decompensated liver disease that was not aggressively
               treated. At time of his exam by an orthopedic doctor he did
               not have loss of extremity use but was rather suffering from a
               reversible medical condition.

      {¶ 36} 22. Following a November 21, 2011 hearing, an SHO issued an order that
vacates the DHO's order of September 27, 2011 and awards 4123.57(B) scheduled loss
compensation for loss of use of both arms and legs. The SHO's order of November 21,
2011 explains:
               The Staff Hearing Officer finds that applicant/surviving
               spouse Twyla B. Evans has withdrawn her requests for
               awards for the "loss of hearing comprehension in both ears"
               and for the "loss of vision comprehension in both eyes." The
               Staff Hearing Officer, therefore, orders that these requests be
               dismissed.
No. 12AP-313                                                                          16


                The Staff Hearing Officer finds, per the 11/03/2011 report of
                Dr. Trangle and the 07/05/2011 and 07/27/2011 reports of
                Dr. Levy, that decedent Glenn Evans suffered the total loss of
                use of his bilateral arms and bilateral legs prior to his death
                on 07/08/2011. The Staff Hearing Officer further finds that
                such losses of use were the direct result of the allowed
                condition "angiosarcoma" and its sequelae. Per the rationale
                set forth in State, ex rel. Moorehead -v- Industrial
                Commission (2006), 112 Ohio State 3d 27, 857 North East 2d
                1203, the Staff Hearing Officer does not find that O.R.C.
                4123.57 requires that an Injured Worker be cognizant of his
                'loss of use' in order to receive compensation for same.

                In the instant case, decedent Glenn Evan's [sic] comatose
                condition, during which his loss of use of his arms and legs
                was present, does not bar an award for same. Additionally,
                the Staff Hearing Officer finds that speculation that Mr.
                Evan's [sic] condition or the course of his "angiosarcoma"
                might have been altered had a different treatment protocol
                been adopted does not negate the fact that a loss of use of the
                bilateral arms and bilateral legs existed. Finally, the Staff
                Hearing Officer finds no persuasive medical evidence that
                demonstrates that Mr. Evan's [sic] comatose condition and
                resultant losses of use were temporary or transient (see,
                State, ex rel. Carter -v- Industrial Commission, 2009 WL
                3366373 (Ohio App. 10 Dist)).

                The Staff Hearing Officer finds that applicant/surviving
                spouse Twyla B. Evans is entitled to an award for the losses
                of use described above (eight hundred and fifty weeks -
                4123.57). Start date for the award is 07/05/2011 (Dr. Levy's
                report). Payment to be made and processed per statute.

                All evidence on file and at hearing, including the 11/17/2011
                report of Dr. Buell, was reviewed and considered.

          {¶ 37} 23. On December 21, 2011, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of November 21, 2011.
          {¶ 38} 24. On February 22, 2012, the three-member commission, on a
unanimous vote, mailed an order denying relator's request for reconsideration.
          {¶ 39} 25. On April 6, 2012, relator, PolyOne Corporation, filed this mandamus
action.
No. 12AP-313                                                                             17


Conclusions of Law:
       {¶ 40} Two main issues are presented: (1) whether the commission relied upon
some medical evidence meeting the statutory requirement that the loss of use of both
arms and legs was permanent rather than temporary, and (2) whether the commission
relied upon some medical evidence showing that the allowed condition, angiosarcoma,
independently caused the permanent loss of use of Evans' four extremities.
       {¶ 41} The magistrate finds: (1) there is indeed some medical evidence upon
which the commission did rely to support the statutory requirement that the loss of use
was permanent rather than temporary, and (2) there is indeed some medical evidence
upon which the commission relied showing that the allowed condition, angiosarcoma,
independently caused the permanent loss of use of Evans' four extremities.
       {¶ 42} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
       {¶ 43} R.C. 4123.57(B) provides for weekly scheduled loss compensation for
enumerated body parts. It provides as follows:
               For the loss of an arm, two hundred twenty-five weeks.

               ***

               For the loss of a leg, two hundred weeks.

       {¶ 44} The only compensable loss of use under R.C. 4123.57(B) is a permanent and
total loss of use. State ex rel. Welker v. Indus. Comm., 91 Ohio St.3d 98 (2001). An
injured worker claiming a loss of use under R.C. 4123.57(B) has the burden of showing
that his loss of use is permanent. State ex rel. Carter v. Indus. Comm., 10th Dist. No.
09AP-30, 2009-Ohio-5547, citing Welker.
       {¶ 45} Two cases are instructive to the issues here.        They are State ex rel.
Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364 and Carter.
Accordingly, both cases will be presented here at some length.
                                        The Moorehead Case

       {¶ 46} In Moorehead, William Moorehead fell approximately 15 to 20 feet head
first onto a concrete floor while working on a raised platform at his job site. Upon impact,
No. 12AP-313                                                                          18


he suffered severe spinal cord and other injuries. Unrebuttable evidence established that
the spinal cord injury rendered him a quadriplegic. Moorehead never regained
consciousness and died 90 minutes after the fall.
       {¶ 47} Moorehead's widow applied for death benefits and also for scheduled loss
compensation based on loss of use of both arms and legs. The commission denied the
application for scheduled loss compensation, observing that scheduled loss benefits may
be awarded only to injured workers who experience both a physical and sustained loss of
use and also consciously perceive and experience the physical suffering and hardship
caused by the loss of use of a body part in the period between injury and death. The
commission stated that "the widow-claimant's application for such benefits must fail, as
the decedent did not sustain the loss of his extremities, because he was comatose, and
completely unaware of the extent of his injuries, for the brief period between the
accident and his death." Id. at ¶ 3.
       {¶ 48} In Moorehead, the Supreme Court of Ohio issued a writ of mandamus,
explaining:
               Similarly, there is no language in R.C. 4123.57(B) requiring
               that an injured worker be consciously aware of his paralysis
               in order to qualify for scheduled loss benefits. In an
               analogous case the Supreme Court of New Hampshire
               considered a scheduled loss application filed on behalf of a
               worker whose injury left him in an irreversible vegetative
               state. Corson v. Brown Prods., Inc. (1979), 119 N.H. 20, 397
               A.2d 640. The application was denied administratively solely
               because Corson's vegetative state made him unaware of his
               loss. The New Hampshire Supreme Court vacated that
               decision and awarded scheduled loss compensation, writing:

               What is of paramount importance in this case is that words
               such as 'awareness' or 'consciousness' cannot be added under
               the guise of legislative history to a statute which clearly
               states that '[t]he scheduled awards under this section accrue
               to the injured employee simply by virtue of the loss or loss of
               the use of a member of the body.' * * * When the language
               used in a statute is clear and unambiguous, its meaning is
               not subject to modification by construction." Id., 119 N.H. at
               23, 397 A.2d 640.
No. 12AP-313                                                                           19


               The same rule of statutory construction applies here. When
               "the meaning of the statute is unambiguous and definite, it
               must be applied as written and no further interpretation is
               necessary." State ex rel. Savarese v. Buckeye Local School
               Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d
               463. R.C. 4123.57(B) does not say that compensation is
               dependent upon a claimant's conscious awareness of his or
               her loss, whether resulting from amputation or paralysis.
               Rather, where the requisite physical loss has been sustained,
               the statute directs that scheduled loss compensation shall be
               paid.

               This court should not graft duration-of-survival or
               cognizance requirements to R.C. 4123.57(B), because the
               statute has no text imposing them. Public-policy arguments
               relative to the requisites of scheduled loss benefits pursuant
               to R.C. 4123.57 are better directed to the General Assembly,
               including arguments that a specified time of survival should
               be mandated after a paralyzing injury and that a worker be
               cognizant of his or her loss before loss-of-use benefits are
               payable.

               The appellant proffered medical evidence establishing that
               William Moorehead sustained the physical loss of use of his
               limbs as a result of his fall. Consciousness of that loss during
               an extended period of survival is not required by R.C.
               4123.57(B), and the commission therefore incorrectly
               applied the statute when it denied the appellant's application
               on that basis.

Id. at ¶ 16-20.

                                     The Carter Case
       {¶ 49} In Carter, the commission denied R.C. 4123.57(B) compensation for the
alleged loss of use of the upper extremities and left leg of David E. Carter, who died on
October 17, 2006 as a result of an October 14, 2006 gunshot wound to his abdomen while
employed as a night club bouncer/security guard.           During Carter's hospitalization
following the gunshot wound, his right leg was surgically amputated at the knee. Also
during the period of hospitalization, Carter underwent a chemically induced paralysis
intended to be therapeutic and reversible.
No. 12AP-313                                                                             20


        {¶ 50} In Carter, the commission denied compensation for the alleged loss of use
of the three extremities on grounds that the loss was not permanent, but only temporary
in nature. The commission reasoned that, had Carter survived his traumatic injury, he
would have recovered from the chemically induced paralysis and would have had full
use of the three extremities.
        {¶ 51} Carter's dependent children filed a mandamus action in this court
challenging the commission's denial of compensation for the alleged loss of use of the
three extremities.
        {¶ 52} While the relators conceded that the chemical paralysis was intended to be
therapeutic and reversible, they posited that the paralysis was rendered permanent by
the fact that the paralysis continued up to Carter's death. This court disagreed, stating
in its decision:
               While the evidence in Moorehead showed that the decedent
               had suffered permanent, albeit brief, paralysis prior to his
               death, the evidence here indicates that decedent's induced
               paralysis was a temporary measure designed to aid in his
               recovery. There is no evidence that, but for decedent's death,
               the paralysis would have been permanent.

Id. at ¶ 5.

        {¶ 53} In Carter, this court adopted the magistrate's decision which further
explains this court's rationale in holding that Carter's dependents had failed to prove that
the loss of use was permanent.
        {¶ 54} In the magistrate's decision adopted by the Carter court, the magistrate
relied upon the definition of "permanent" provided by the syllabus of Logsdon v. Indus.
Comm., 143 Ohio St. 508 (1944). The syllabus states:
               The term 'permanent' as applied to disability under the
               workmen's compensation law does not mean that such
               disability must necessarily continue for the life of a claimant,
               but that it will, with reasonable probability, continue for an
               indefinite period of time without any present indication of
               recovery therefrom.

        {¶ 55} Finding the Logsdon definition of permanent to be helpful, the magistrate
explained why Carter's paralysis was temporary:
No. 12AP-313                                                                              21


               In the magistrate's view, the court's discussion of the
               meaning of the term "permanent" in DaimlerChrysler is
               helpful to the resolution of relator's claim that decedent's
               death turned a temporary paralysis into a permanent one.

               The determination of whether a condition is temporary or
               permanent, of necessity, involves a determination of the
               probable future status of the condition based upon current
               medical information. It is not a determination to be made
               from hindsight, but a determination of reasonable
               probability as to the future. State ex rel. Matlack, Inc. v.
               Indus. Comm. (1991), 73 Ohio App.3d 648, 658, 598, N.E.2d
               121 ("[C]ourts have held that the permanency is not gauged
               on the basis of hindsight.").

               Thus, the relevant inquiry as to whether the chemically-
               induced paralysis was temporary or permanent is premised
               upon events at the time that the paralysis was chemically
               induced, not upon the hindsight view after decedent's death.
               Id.

Id. ¶ 57-59.

                 The First Issue: Was the loss of use permanent?
       {¶ 56} Here, relying upon this court's decision in Carter, relator argues that Evans'
death, some four days after Dr. Levy's in-home examination, rendered temporary the
observed loss of use of the extremities.
       {¶ 57} Clearly, this court's analysis and rationale in the Carter case does not
compel relator's conclusion that Evans' loss of use was temporary rather than
permanent. That is, relator's reliance upon Carter is misplaced.
       {¶ 58} As indicated by the medical evidence upon which the commission relied,
Evans' loss of use was the medically expected result of his angiosarcoma of the liver.
Unlike Carter's situation, Evans' loss of use was not chemically induced. Evans' loss of
use was not in anyway therapeutic.         Rather, Evans' loss of use was the natural
consequence of his angiosarcoma. Thus, unlike Carter's temporary paralysis, Evans' loss
of use was permanent because it was expected to last, and did last, until Evans' death.
No. 12AP-313                                                                                 22


          {¶ 59} Here, relying upon the report of its own medical expert, Dr. Buell, relator
posits that Evans' loss of use of his four extremities during the days prior to his death
was not permanent, but temporary. Dr. Buell opined:
                 Neither the angiosarcoma nor the treatment of the
                 angiosarcoma can cause permanent damage to the central
                 nervous system. More often than not this state of
                 encephalopathy is completely reversible with appropriate
                 medical therapy. In no way did Mr. Evans ever permanently
                 lose function of all four of his extremities.
          {¶ 60} Relator's reference to Dr. Buell's report to support its contention that Evans'
loss of use was temporary is problematic given that the commission did not find the
report worthy of its reliance.
          {¶ 61} Dr. Buell's opinion was directly contradicted by the reports of Drs. Levy
and Trangle upon whom the commission did rely.
                 In his seven-page narrative report, dated July 27, 2011, Dr. Levy states:
                 The patient does have permanent loss of use of various body
                 parts as statutorily determined. Mr. Evans had no functional,
                 meaningful or volitional use of either of his arms or legs. All
                 four limbs can be considered to have no functional use. For
                 actual practical purposes he has permanently lost the use
                 through the central nervous system dysfunction he has of
                 any extremity movement or activity.

          {¶ 62} In his seven-page narrative report dated November 3, 2011, Dr. Trangle
states:
                 To explain it perhaps more succinctly, the combination of
                 encephalopathy, cerebral edema and bleeding directly
                 caused a profound central nervous system depression.
                 Profound central nervous system depression is called coma
                 where there is a loss of consciousness. In addition to loss of
                 consciousness there is also loss of use of the extremities as
                 the central nervous system from the brain does control the
                 other parts of the central nervous system including the spinal
                 cord which mediates the function and motion of the
                 extremities. As Mr. Evans' level of central nervous system
                 depression became more deeply affected and his coma
                 continued to permanently deepen, he had permanent loss of
                 use of his extremities.
No. 12AP-313                                                                           23


       {¶ 63} Clearly, the reports of Drs. Levy and Trangle, upon which the commission
relied provide the some evidence needed to support the commission's finding that Evans'
loss of use of his four extremities was permanent, thus satisfying the statutory
requirement for compensation.
                             The Second Issue: Causation
       {¶ 64} As earlier noted, relator contends that Evans' loss of use of his four
extremities during the days preceding his death were caused in part by non-allowed
conditions and thus the loss of use is not compensable.
       {¶ 65} Relator points out that the DHO, following the September 27, 2011
hearing, found that "Dr. Levy does not sufficiently explain how the allowed condition of
angiosarcoma directly caused the damage to the central nervous system that would then
cause the loss of use of all four extremities."
       {¶ 66} Relator points out here, as did the DHO in his order, that Dr. Levy listed
multiple "diagnoses" in his July 27, 2011 report.
       {¶ 67} It can be noted that the SHO's order of November 21, 2011 vacates the
DHO's order of September 27, 2011 and awards compensation based upon Dr. Levy's
July 27, 2011 report that the DHO found to be problematical. Also, the SHO's order
relies upon the November 3, 2011 report of Dr. Trangle that issued after the DHO's
decision.
       {¶ 68} Of course, it should be understood that the November 21, 2011 hearing
before the SHO was de novo. Thus, it was within the SHO's discretion to reject the
DHO's view of Dr. Levy's July 27, 2011 report and to rely upon the report to support an
award. That is, the DHO's rejection of Dr. Levy's report was not binding on the SHO.
       {¶ 69} A claimant must always show the existence of a direct and proximate
causal relationship between his or her industrial injury and the claimed disability. State
ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). Non-allowed medical
conditions cannot be used to advance or defeat a claim for compensation. Id. The mere
presence of a non-allowed condition in a claim for compensation does not in itself
destroy the compensability of the claim, but the claimant must meet his burden showing
that an allowed condition independently caused the disability. State ex rel. Bradley v.
Indus. Comm., 77 Ohio St.3d 242 (1997).
No. 12AP-313                                                                          24


       {¶ 70} In his July 27, 2011 report, Dr. Levy could not be clearer that the
angiosarcoma independently caused the loss of use of all four extremities during the
days prior to death:
               At the time that he was evaluated, Mr. Glenn Evans was a 74-
               year-old gentleman with a diagnosis of angiosarcoma of the
               liver, a result of an occupational environmental exposure
               sustained in the course of his employment. * * * Before I had
               evaluated him, Mr. Evans was found also to have a medical
               history of congestive heart failure, hypertension, reflux and
               anorexia, among his other conditions.
               ***

               Coma is defined as a profound state of deep
               unconsciousness. It affects any individual's ability to interact
               with the surrounding environment. In this particular case it
               is the direct sequelae of the obfundation and deep
               unconsciousness caused by his progress fatal cancer. The
               cancer caused a cascade of events leading to metabolic
               derangement, lack of oxygenation and in general lack of the
               necessary physiologic mechanisms sufficient to sustain
               conscious awareness and bodily function.

       {¶ 71} In his November 3, 2011 report, Dr. Trangle could not be clearer that the
angiosarcoma independently caused the loss of use of all four extremities during the days
prior to death:
               [H]is permanent loss of use of his extremities was a direct
               result of the combination of the buildup of neurotoxic
               substances, cerebral edema, increased intracranial pressure,
               cerebral ischemia and most likely even cerebral bleeding.
               This was an irreversible, permanent progression of events
               that led to coma which is the definition of profound central
               nervous system depression with loss of consciousness; and
               with concomitant inability to use his extremities on a
               permanent basis. Ultimately, the cerebral pressure and other
               noted factors built up to the point that the brain stem was
               almost certainly compressed to the point that he could no
               longer breathe and this resulted in his ultimate demise. All of
               these conditions; buildup of neurotoxic substances, cerebral
               edema, increased intracranial pressure, cerebral ischemia
               and     cerebral   bleeding,    hepatic      failure, hepatic
               encephalopathy, central nervous system depression, and
               resultant permanent loss of use of his upper and lower
No. 12AP-313                                                                           25


               extremities are physical manifestations that are the direct
               result of the allowed claim for hepatic angiosarcoma.

       {¶ 72} Based on the forgoing analysis, the magistrate concludes that the
commission relied upon some evidence supporting a finding that the allowed condition,
angiosarcoma, independently caused the loss of use of all four extremities.
       {¶ 73} 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
                                         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).
