State ex rel. Varney v. Indus. Comm. (Slip Opinion) , 143 Ohio St. 3d 181 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Varney v. Indus. Comm., Slip Opinion No. 2014-Ohio-5510.]
NOTICE
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an advance sheet of the Ohio Official Reports. Readers are requested
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65 South Front Street, Columbus, Ohio 43215, of any typographical or
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made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-5510
THE STATE EX REL. VARNEY, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO,
APPELLANT, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Varney v. Indus. Comm.,
Slip Opinion No. 2014-Ohio-5510.]
Workers’ compensation—R.C. 4123.57(B)—Total loss of use—Fingers—Standard
for determining total loss of use of thumb is not applicable to loss of use of
fingers—Proper standard is physician’s opinion on impairment or extent
of loss—Denial of loss-of-use award is proper when medical evidence
does not show loss of use “for all practical purposes.”
(No. 2012-2040— Submitted June 24, 2014—Decided December 18, 2014.)
APPEAL from the Court of Appeals for Franklin County,
No. 11AP-585, 2012-Ohio-4904.
_______________________
Per Curiam.
{¶ 1} Appellant, Dennis Varney, had four fingers on his left hand
amputated in a work-related accident in 1983. Three fingers were completely
reattached, and the fourth, his index finger, was partially reattached. The fingers
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did not regain their full function, however. The Bureau of Workers’
Compensation awarded Varney compensation for the amputation of his fingers.
A further claim for one-third loss of use of his index finger was allowed in 1985
and another in 1990 for two-thirds loss of use of his left middle, ring, and little
fingers.
{¶ 2} Almost 20 years later, Varney applied for an award for the total
loss of use of his left index, ring, and little fingers. The Industrial Commission
denied the claim, concluding that there was no legally valid medical report in the
record supporting the loss of the functional use of these fingers. In addition, the
issue of how much use was lost had been decided more than 20 years ago.
{¶ 3} The Tenth District Court of Appeals determined that the
commission had applied the wrong legal standard for determining the loss of use
of a finger. The court granted Varney’s request for a writ of mandamus
remanding the matter to the commission to reconsider the issue under the correct
standard.
{¶ 4} For the reasons that follow, we conclude that the commission
properly examined the medical evidence as it related to the amount of function
remaining in the fingers and denied Varney’s request for compensation for the
total loss of use of three fingers. Therefore, we reverse the judgment of the court
of appeals and deny the writ.
Facts
{¶ 5} In November 1983, the four fingers of Dennis Varney’s left hand
were amputated in a work-related accident. A hand surgeon successfully
reattached the middle, ring, and little fingers, and performed a revision
amputation at the distal interphalangeal level of his index finger. His claim was
initially allowed for “amputation fingers, left second finger, third finger, fourth
finger, fifth finger,” and the bureau paid Varney temporary-total-disability
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compensation for a period of time following the accident. After three months, he
returned to work.
{¶ 6} In 1985 and 1990, Varney applied for and was awarded
compensation for the partial loss of use of his four fingers. In 1998, he was
awarded compensation for one-half loss of use of his hand. In 2010, Varney filed
a motion for the total loss of use of his left hand, based on two medical reports of
Dr. Nancy Renneker. On January 27, 2011, a staff hearing officer denied the
motion, rejecting Dr. Renneker’s reports and relying instead on an October 28,
2010 report from Dr. Jeremy J. Burdge, in which Dr. Burdge concluded that
Varney did not have a complete loss of use of his hand. The hearing officer also
stated that, in the alternative, Varney’s request was denied because he did not
provide any new evidence showing a basis for an increase above the prior award
in 1998 for the loss of use of one-half of his hand. Dr. Renneker’s reports were
rejected as failing to show any decline in function. Varney’s appeal to the
commission was refused.
{¶ 7} In December 2010 (while his motion for the total loss of use of his
hand remained pending), Varney filed a motion for a total loss of use of his index,
ring, and little fingers. This motion led to the order that is the basis for Varney’s
mandamus action. Varney’s motion was based on the statement in Dr. Burdge’s
report that Varney has a 69 percent impairment of his left index finger and on the
report of Dr. Renneker, who stated that Varney has the equivalent of a total loss
of use of three fingers.
{¶ 8} A district hearing officer denied the motion for three reasons.
First, there was no valid medical report in the record supporting the loss of the
functional use of these fingers. The commission’s January 27, 2011 order on total
loss of use of the hand rejected Dr. Renneker’s report as not showing further loss
of function, and thus that report cannot be a basis for the new claim. In support,
the hearing officer cited State ex rel. Zamora v. Indus. Comm., 45 Ohio St. 3d 17,
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543 N.E.2d 87 (1989). Second,“[t]he issue of how much use was lost in these
fingers was decided more than twenty years ago. No new surgeries, treatments, or
other changes in circumstances have been alleged. Therefore, this issue is already
decided.” Third, even if the motion were to be decided on the merits, it would
fail, as Dr. Burdge’s February 11, 2011 report was evidence that Varney did not
have a total functional loss of use in these three fingers.
{¶ 9} A staff hearing officer affirmed the decision. The commission
refused further appeal.
{¶ 10} Varney filed a complaint for a writ of mandamus in the Tenth
District Court of Appeals. A magistrate recommended that the court deny the writ
because Varney had not demonstrated that for all intents and purposes, he had a
total loss of use of these fingers. The magistrate agreed that the commission
could not rely on Dr. Renneker’s report as evidence because the commission had
already rejected her opinion. The magistrate rejected Varney’s argument that
when analyzing the loss of use of his fingers, the commission should have applied
the standard for the loss of use of a thumb articulated in State ex rel. Rodriguez v.
Indus. Comm., 10th Dist. Franklin No. 08AP-910, 2009-Ohio-4834. The
magistrate noted that a thumb is viewed differently than a finger and is evaluated
under different standards, citing State ex rel. Riter v. Indus. Comm., 91 Ohio St. 3d
89, 92, 742 N.E.2d 615 (2001) (the thumb is “truly unique” and “evaluating it
under standards directed at the fingers just doesn’t work”).
{¶ 11} In conclusion, the magistrate stated:
The commission had already awarded relator a 50 percent loss of
use of his hand and, as the commission indicated, relator did not
present evidence demonstrating [that] his loss of use of these
specific fingers had increased since the commission’s last order. *
* * The evidence does not demonstrate that relator has for all
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intents and purposes sustained a total loss of use of his index, ring
or little fingers and the commission did not abuse its discretion.
State ex rel. Varney v. Indus. Comm., 10th Dist. Franklin No. 11AP-585, 2012-
Ohio-4904, ¶ 61.
{¶ 12} But, in a split decision, the court of appeals concluded that the
reasoning in Rodriguez regarding the loss of use of a thumb did apply to the loss
of use of a finger; thus, “R.C. 4123.57(B) requires the commission to determine
whether more than two-thirds of a finger is useless and not merely whether the
finger is totally useless.” Id. at ¶ 4. The appellate court determined that the
commission had used the wrong standard when analyzing Dr. Burdge’s report.
The court granted Varney’s request for a writ of mandamus and remanded the
case to the commission to redetermine his eligibility for the loss of use of his
fingers.
{¶ 13} The matter is before the court on the commission’s appeal as of
right.
{¶ 14} We must determine whether the court of appeals abused its
discretion when it applied the standard articulated in Rodriguez for the loss of use
of a thumb where ankylosis (total stiffness of joint) is proven to the loss of use of
a finger.
{¶ 15} R.C. 4123.57(B) authorizes compensation paid to a claimant for
the loss of each particular finger according to a statutory schedule. Like the
thumb, but unlike other body parts listed in the schedule, R.C. 4123.57(B) also
assigns specific values to the loss of a finger depending on how much of the
finger is lost, using segments as a measure:
The loss of the third, or distal, phalange of any finger is
considered equal to the loss of one-third of the finger.
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The loss of the middle, or second, phalange of any finger is
considered equal to the loss of two-thirds of the finger.
The loss of more than the middle and distal phalanges of
any finger is considered equal to the loss of the whole finger. In
no case shall the amount received for more than one finger exceed
the amount provided in this schedule for the loss of a hand.
{¶ 16} When the statute was originally written, amputation was the only
compensable loss. State ex rel. Meissner v. Indus. Comm., 94 Ohio St. 3d 203,
205, 761 N.E.2d 618 (2002). Later, this court recognized the loss of use of a body
part without amputation in cases involving paraplegia. State ex rel. Walker v.
Indus. Comm., 58 Ohio St. 2d 402, 390 N.E.2d 1190 (1979); State ex rel. Kroger
Co. v. Johnson, 128 Ohio St. 3d 243, 2011-Ohio-530, 943 N.E.2d 541, ¶ 10. In
State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St. 3d 341, 2004-Ohio-
3166, 810 N.E.2d 946, the court further clarified that a claimant may qualify for a
total loss of use even when the body part retains some residual function. In such
cases, a claimant must demonstrate with medical evidence a total loss of use of
the body part at issue for all practical purposes. Id.
{¶ 17} In Kroger, we addressed the standard for determining a total loss
of use under R.C. 4123.57(B). In that case, the claimant applied for the loss of
use of his right hand based on lack of sufficient circulation in three fingers,
leading to stiffness, weakness, and severe temperature-induced pain. Applying the
Alcoa standard, this court emphasized that “the pivotal question is how much
function remains.” Id. at ¶ 15. The court explained that generally, loss of
function may be expressed either numerically, as a percentage of loss, or
narratively. Id. A narrative opinion of loss of function describes whether “for all
practical purposes” the claimant has lost all use of the affected body part. Id. at
¶ 17.
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{¶ 18} In this mandamus action, Varney argued that the commission
should have relied upon the more specific standard in Rodriguez, not Alcoa, when
determining the loss of use of his fingers. Rodriguez involved a request for
compensation for the total loss of use of a thumb based on ankylosis (total
stiffness) at the metacarpophalangeal (“MP”) joint. Rodriguez alleged that the
ankylosis of the joint equated to a loss of more than one-half of his thumb, and
under R.C. 4123.57(B), “the loss of more than one-half of such thumb is
considered equal to the loss of the whole thumb.” Id. at ¶ 31.
{¶ 19} A staff hearing officer concluded that Rodriguez had proven
ankylosis of the MP joint, but found that denial of compensation was not an abuse
of discretion because Rodriguez had failed to demonstrate that, as a result, the
thumb was entirely useless. Id. at ¶ 30. But the court of appeals determined that
the commission had not used the correct standard where ankylosis was proven.
Id. at ¶ 6. Rodriguez acknowledged that “R.C. 4123.57(B) requires compensation
when a claimant has lost the use of his thumb, and provides that the loss of more
than one-half of the thumb is equal to the loss of the whole thumb.” Id. at ¶ 3.
The court emphasized a distinction that does not apply to Varney: “Important for
our purposes here, R.C. 4123.57(B) also authorizes payment ‘[f]or ankylosis (total
stiffness of) * * * which makes any of the fingers, thumbs, or parts of either
useless.’ ” Id. at ¶ 3. Rodriguez concluded that “[t]ogether, these provisions
require the commission, where ankylosis is proven, to determine whether a
claimant has lost more than half the use of a thumb, not just whether a thumb is
‘useless,’ in order to determine whether a total loss has occurred.” (Emphasis
added.) Id. at ¶ 6.
{¶ 20} Although Rodriguez involved a thumb, Varney argued to the court
of appeals that any distinction between fingers and thumbs was irrelevant for
purposes of R.C. 4123.57(B). The court of appeals agreed that “our reasoning in
Rodriguez applies with equal force to the present case” and that “R.C. 4123.57(B)
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requires the commission to determine whether more than two-thirds of a finger is
useless and not merely whether the finger is totally useless.” 2012-Ohio-4904,
¶ 4.
{¶ 21} Varney argues that the appellate court properly implemented the
statutory language. The commission maintains that the appellate court
misinterpreted R.C. 4123.57(B) and that a physician’s opinion of impairment is
the appropriate measure for determining loss of use of a body part, not Rodriguez.
{¶ 22} The plain language of R.C. 4123.57 does not state a numerical
measure or threshold for the total loss of use of a finger. The statute contains no
provision that requires a finding of total loss based upon the loss of two-thirds of
the finger, and this court has no authority to read into the statute a two-thirds
numerical measure or threshold. Only when the loss is specific to particular
bones or phalanges does the statute provide that the loss may equate to a total
loss: “The loss of more than the middle and distal phalanges of any finger is
considered equal to the loss of the whole finger.” Id.
{¶ 23} In addition, the Rodriguez court specifically tailored its standard to
the loss of a thumb due to ankylosis of a particular joint. Dr. Burdge reported that
Varney’s digits suffer from stiffness, numbness, and sensitivity to cold. Thus,
Rodriguez is distinguishable based not only on the body part at issue, but also on
the type of impairment affecting the body part.
{¶ 24} In the absence of a statutory numerical measure for the total loss of
a finger, the commission must apply the accepted and mandated method for
measuring loss of use—a physician’s opinion on impairment or extent of loss.
Kroger, 128 Ohio St. 3d 243, 2011-Ohio-530, 943 N.E.2d 541, ¶ 17. Here, the
commission relied on the report of Dr. Burdge that Varney had some functional
use of his fingers. And although Dr. Burdge also assessed a percentage of
impairment to each finger, “[b]ecause percentage figures alone do not always tell
the whole story, a doctor’s opinion as to whether ‘for all practical purposes’ the
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claimant has lost all use of the affected member is critically important.” Id. at
¶ 17. Thus, the commission used the proper standard when analyzing the medical
report of Dr. Burdge, and it did not abuse its discretion when it relied on that
report as evidence to support its decision to deny compensation for the total loss
of use of these fingers.
{¶ 25} The court of appeals abused its discretion when it issued a writ of
mandamus directing the commission to apply the standard articulated in
Rodriguez to the loss of use of a finger. Consequently, we reverse the judgment
of the court of appeals and deny the writ.
Judgment reversed
and writ denied.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH,
JJ., concur.
PFEIFER and O’NEILL, JJ., dissent.
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O’NEILL, J., dissenting.
{¶ 26} I respectfully dissent. This case should be remanded to the
Industrial Commission for application of R.C. 4123.57(B) to determine whether
Varney is entitled to compensation for the total loss of use of his fingers. The
plain language of the statute states, “The loss of more than the middle and distal
phalanges of any finger is considered equal to the loss of the whole finger.” R.C.
4123.57(B).
{¶ 27} Applying this statute, this court has already determined that a
claimant who shows a loss of use “for all practical purposes” is entitled to a
scheduled-loss award. SER Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St. 3d
341, 2004-Ohio-3166, 810 N.E.2d 946, citing State ex rel. Gassmann v. Indus.
Comm., 41 Ohio St. 2d 64, 322 N.E.2d 660 (1975), and State ex rel. Walker v.
Indus. Comm., 58 Ohio St. 2d 402, 390 N.E.2d 1190 (1979). In Alcoa, this court
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rejected the suggestion that a loss of use “for all practical purposes” meant that
the loss must be the absolute equivalent of loss by amputation. Id. at ¶ 14. We
declared that such a standard is unworkable because it is impossible to satisfy in a
nonseverance situation, and Walker and Gassmann were “unequivocal in their
desire to extend scheduled loss benefits beyond amputation.” Id. at ¶ 11. We
reasoned that such a literal interpretation would
foreclose benefits to the claimant who can raise a mangled arm
sufficiently to gesture or point. It would preclude an award to
someone with the hand strength to hold a pack of cards or a can of
soda, and it would bar—as here—scheduled loss compensation to
one with a limb segment of sufficient length to push a car door or
tuck a newspaper. Surely, this could not have been the intent of
the General Assembly in promulgating R.C. 4123.57(B) or of
Gassman and Walker.
Id. at ¶ 11.
{¶ 28} Instead of examining the record to determine whether the medical
evidence demonstrated a loss of use “for all practical purposes,” the majority
opinion mischaracterizes the issue presented. The opinion suggests that the Tenth
District applied a new standard based on its decision in State ex rel. Rodriguez v.
Indus. Comm., 10th Dist. Franklin No. 08AP-910, 2009-Ohio-4834. That is not
what happened here. In Rodriguez, the appellate court properly granted a writ of
mandamus ordering the commission to reevaluate the claimant’s scheduled-loss
claim based on the plain language of R.C. 4123.57(B). No new standard was
articulated. Varney has a statutory right to have his application for the scheduled
loss of use of his fingers evaluated based on the plain language of R.C.
4123.57(B).
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{¶ 29} The majority opinion also misapplies this court’s decision in State
ex rel. Kroger Co. v. Johnson, 128 Ohio St. 3d 243, 2011-Ohio-530, 943 N.E.2d
541. The dispute in Kroger was about an equivocal medical opinion, where a
percentage of impairment assessment was internally inconsistent with the
physician’s narrative. There was no dispute regarding the absence of a statutory
numerical measure for the total loss of use of a finger. The absence of a statutory
numerical measure for the total loss of use of a finger was not relevant in Kroger
and it is not relevant in this case.
{¶ 30} In this case, the medical evidence relied on by the Industrial
Commission does not include a determination of whether the Varney has lost use
of more than the middle and distal phalanges. As a matter of law, that
determination is required by R.C. 4123.57(B). Instead, the evidence relied upon
includes a percentage of impairment and a conclusion that Varney has not lost all
use of his fingers. The percentage calculation relied upon here is not required by
R.C. 4123.57(B) and is therefore irrelevant. And the determination that Varney
does not qualify for compensation under R.C. 4123.57(B) because he has not lost
all use of his fingers is not the law of Ohio. Alcoa, 102 Ohio St. 3d 341, 2004-
Ohio-3166, 810 N.E.2d 946. I would affirm the decision of the Tenth District
Court of Appeals. This case should be remanded to the Industrial Commission for
proper consideration under Ohio law. I dissent.
PFEIFER, J., concurs in the foregoing opinion.
___________________
Philip J. Fulton Law Office and Chelsea J. Fulton, for appellee.
Michael DeWine, Attorney General, and Kevin J. Reis, Assistant Attorney
General, for appellant.
___________________
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