State ex rel. Waite v. Indus. Comm. ( 2016 )

[Cite as State ex rel. Waite v. Indus. Comm., 2016-Ohio-8496.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Sandra Waite, :
Relator, :
v. : No. 15AP-1018
The Industrial Commission of Ohio : (REGULAR CALENDAR)
and
KeyBank National Assoc., :
Respondents. :
D E C I S I O N
Rendered on December 29, 2016
Shapiro, Marnecheck & Palnik, Matthew A. Palnick, and
Elizabeth M. Laporte, for relator.
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
Littler Mendelson, P.C., Michael T. Short, and Marisa
Bartlette Willis, for respondent KeyBank National
Association.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
SADLER, J.
{¶ 1} Relator, Sandra Waite, commenced this original action requesting a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its decision denying her application for total loss of use of her left leg and ordering the
commission to grant her application for such compensation.
No. 15AP-1018 2
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued the appended decision,
including findings of fact and conclusions of law. The magistrate determined that the
commission's finding was supported by some evidence in the record and, as a result,
recommended that this court deny the requested writ of mandamus. For the following
reasons, we overrule the objection and deny the requested writ.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} None of the parties have filed objections to the magistrate's findings of fact,
and following an independent review of the record, we adopt those findings as our own.
As more fully set forth in the magistrate's decision, relator sustained a work-related injury
in February 2012, and her worker's compensation claim was allowed for several
conditions relating to a left ankle sprain and fracture. Relator developed complex
regional pain syndrome and a "pseudo-clubfoot deformity" that effectively rendered her
unable to bear weight on that foot. (Sept. 20, 2013 Report of Mark J. Mendeszoon,
D.P.M.) Under care of a podiatrist, Dr. Mendeszoon, relator underwent surgery and post-
operative therapy in January 2014.
{¶ 4} On March 2, 2015, relator filed an application for total functional loss of use
of her left leg, supported by a February 25, 2015 report of Dr. Mendeszoon. Within that
report, Dr. Mendeszoon opined that relator will never be able to walk on her left leg again,
and the best she can hope to achieve is to stand and pivot and possibly do some minimal
activities for independent living. He noted that relator wears special braces and shoes and
expressed the strong possibility that relator would receive a below the knee amputation in
the future.
{¶ 5} Following a hearing, a district hearing officer ("DHO") issued an order
awarding R.C. 4123.57(B) compensation for the loss of use of her left leg. Respondent
KeyBank appealed, and after another hearing, a staff hearing officer ("SHO") issued an
order vacating the DHO's decision and denying relator's motion based on the independent
medical examination of Paul C. Martin, M.D., dated May 4, 2015. According to Dr.
Martin's report, appellant retained use of her left leg for balance and ambulation. Dr.
Martin's examination referenced post-operative physical therapy notes, which
documented relator's ability to go up and down stairs with a quad cane, independence
No. 15AP-1018 3
with mobility transfers, and the ability to stand greater than 30 minutes. The SHO
additionally relied on a surveillance video confirming relator's ability to ambulate with her
quad cane independently. Relator's further appeal was refused by the commission, and,
thereafter, she filed the instant mandamus action in this court.
{¶ 6} As previously indicated, the magistrate recommended that this court deny
relator's request to issue the writ of mandamus. In its decision, the magistrate first
discussed the inconsistency of Dr. Mendeszoon's February 25, 2015 report with his office
notes three days later recommending that relator transition into a walking shoe and
lighter brace to allow comfortable ambulation. Next, the magistrate disagreed with
relator's argument that Dr. Martin's report must be removed from evidentiary
consideration because Dr. Martin allegedly was unaware that relator wore certain braces
and that her left leg was significantly shorter than her right leg. In doing so, the
magistrate emphasized that Dr. Martin reviewed medical records from Dr. Mendeszoon
and that relator does not argue that Dr. Martin's report is equivocal, internally
inconsistent, or applies an incorrect standard for determining loss of use. As a result, the
magistrate concluded that the May 4, 2014 report of Dr. Martin provides some evidence
on which the commission could rely to support denial of relator's claim and that relator
had not met her burden in proving the commission abused its discretion in rendering its
decision.
II. OBJECTION
{¶ 7} Relator assigns the following objection to the magistrate's decision:
The Magistrate erred in finding the Industrial Commission
did not abuse its discretion in relying upon Dr. Martin's report
to deny Relator's application for total loss of use of her left leg
as said report is not "some evidence" as a matter of law as it
fails to take into account all of the numerous assistive devices
Relator requires in order to allow her to take the limited steps
she has taken during physical therapy and Dr. Martin's exam.
III. DISCUSSION
{¶ 8} Relator's objection is, in essence, the same arguments made to and
addressed by the magistrate. Contrary to relator's position, in his analysis, the magistrate
expressly took into account relator's arguments regarding her reliance on braces to walk
No. 15AP-1018 4
as well as her shorter left leg. After an independent review of the record and with
consideration of relator's objection, we conclude that the magistrate correctly reasoned
that Dr. Martin's report and the surveillance video were some evidence to support the
commission's denial of a total loss of use award. Dr. Martin's report and the surveillance
video establish relator's ability to ambulate with the assistance of braces, a custom made
shoe, and a cane. This evidence satisfies the legal standard established in State ex rel.
Richardson v. Indus. Comm., 10th Dist. No. 04AP-724, 2005-Ohio-2388, and State ex
rel. Bushatz v. Indus. Comm., 10th Dist. No. 10AP-541, 2011-Ohio-2613, for total loss of
use awards, pursuant to R.C. 4123.57(B), in the context of functional capacity to ambulate
through the use of correctives devices. Richardson at ¶ 6-10 (holding that the
commission did not abuse its discretion in finding relator had not sustained a total loss of
use, pursuant to R.C. 4123.57(B), where some evidence established relator's ability to walk
with the assistance of a brace); Bushatz at ¶ 2, 4 (holding that commission properly
applied the law and did not abuse its discretion by refusing to evaluate relator's loss of use
without consideration of the correction provided by the foot brace); State ex rel.
Richardson v. Indus. Comm., 10th Dist. No. 11AP-678, 2012-Ohio-5660, ¶ 11; State ex rel.
Wike v. Suiza Dairy Group, LLC, 10th Dist. No. 14AP-213, 2015-Ohio-681, ¶ 3, 44.
{¶ 9} Therefore, for the reasons set forth in the magistrate's analysis, we overrule
relator's objection. State ex rel. Schottenstein Stores Corp. v. Indus. Comm., 10th Dist.
No. 07AP-1066, 2009-Ohio-2142, ¶ 4-5.
IV. CONCLUSION
{¶ 10} Following review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objection, we find the magistrate properly
determined the facts and applied the appropriate law. Therefore, we adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law. In
accordance with the magistrate's decision, the requested writ of mandamus is denied.
Objection overruled;
writ of mandamus denied.
DORRIAN, P.J., and BRUNNER, J., concur.
________________
No. 15AP-1018 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Sandra Waite, :
Relator, :
v. : No. 15AP-1018
The Industrial Commission of Ohio : (REGULAR CALENDAR)
and
KeyBank National Assoc., :
Respondents. :
MAGISTRATE'S DECISION
Rendered on July 20, 2016
Shapiro, Marnecheck & Palnik, Matthew A. Palnick, and
Elizabeth M. Laporte, for relator.
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
Littler Mendelson, P.C., Michael T. Short, and Marisa
Bartlette Willis, for respondent KeyBank National Assoc.
IN MANDAMUS
{¶ 10} In this original action, relator, Sandra Waite, requests a writ of mandamus
ordering respondent, Industrial Commission of Ohio ("commission"), to vacate the
July 27, 2015 order of its staff hearing officer ("SHO") that denies relator's March 2,
2015 motion for an R.C. 4123.57(B) scheduled loss award for the alleged loss of use of
her left leg, and to enter an order granting the award.
No. 15AP-1018 6
Findings of Fact:
{¶ 11} 1. On February 2, 2012, relator sustained an industrial injury while
employed as an account manager for respondent, KeyBank N.A., a self-insured
employer under Ohio's workers' compensation laws. On that date, relator tripped over a
telephone cord and fell.
{¶ 12} 2. Initially, relator went to an urgent care center where her left foot and
ankle were x-rayed.
{¶ 13} 3. On February 22, 2012, relator did a follow-up with Gregory C.
Sarkisian, D.O., who wrote: "Impression: Probable ankle sprain versus occult fracture,
left foot and ankle."
{¶ 14} 4. On March 6, 2012, relator first saw podiatrist Mark J. Mendeszoon,
D.P.M.
{¶ 15} 5. On March 7, 2012, at the request of Dr. Mendeszoon, relator underwent
an MRI of her left ankle. In his report, radiologist Vjekoslav Jeras, M.D. wrote:
IMPRESSION:
[One] Nondisplaced fracture through the anterior process of
the calcaneus at the attachment of the bifurcate ligament
with reactive marrow edema and small calcaneocuboid joint
effusion. There is reactive soft tissue edema in the extensor
digitorum brevis muscle.
[Two] Stress Edema along the lateral margin head of the
talus without discrete fracture. There are findings related to
component of subtalar sprain.
{¶ 16} 6. On March 20, 2012, relator again saw Dr. Mendeszoon. In his office
note, Dr. Mendeszoon wrote:
Radiographs: I reviewed the MRI report, but I am highly
suspicious for chronic regional pain syndrome.
Plan: It is my recommendation that she see Dr. Dean Pahr at
Lake Hospital Pain Management for I believe that she needs
pain management, sympathetic blocks and to treat this
condition. Because it is early, hopefully, we can catch this.
She needs to start range of motion and physical therapy to
try to keep this from becoming a full-blown chronic regional
pain syndrome. She understands this. We will try her on
No. 15AP-1018 7
Vicodin to help diminish the pain. Her husband was advised
to do active range of motion. She is allowed to weight bear to
touchdown to tolerance with her splint. If she has any
problems, she will call. She will see Dr. Pahr as soon as
possible.
Additional Diagnoses:
[One] Fracture and sprain of midfoot, 845.10.
[Two] Sprain of the ankle, 845.00.
[Three] Calcaneal fracture, 825.0.
[Four] 337.22, reflex sympathetic dystrophy/chronic
regional pain syndrome.
{¶ 17} 7. By letter dated July 26, 2012, KeyBank certified the industrial claim
(No. 12-813799) for the following conditions:
845.00 Left Ankle Sprain
845.10 Left Mid Foot Fracture and Sprain
825.0 Left Calcaneal Fracture
337.22 Chronic Pain Syndrome
{¶ 18} 8. In March 2013, Dr. Mendeszoon completed a C-9 request for surgery.
{¶ 19} 9. On September 20, 2013, Dr. Mendeszoon wrote to KeyBank's counsel:
As you know, this has been a tragic case from the initial
injury. The patient sustained an ankle sprain and when she
came to my office several years ago, she was immediately
diagnosed with reflex sympathetic dystrophy or complex
regional pain syndrome. Immediately, I put the request in
for treatment for this condition for pain management
consult, sympathetic blocks and physical therapy and there
was a little delay in these events.
***
However, due to this neurological issue and her inability to
walk, her foot has developed a pseudo-clubfoot deformity in
which she is unable to weight bear whatsoever. Her foot is in
an inverted, turned-in position. She has contractures of her
digits and her Achilles tendon and bracing, which we have
tried extensively, has failed. My concern is that if she
continues to brace, she will start rubbing the outside bone of
her fifth metatarsal or fibula, which will eventually cause
ulcerations. The patient is at risk for below-knee amputation.
No. 15AP-1018 8
At this point, it is my medical opinion that Sandra would
benefit from a pantalar arthrodesis which will fuse the ankle
and hindfoot in a neutral position, keeping her at 90°. This
will prevent her from further inverting or turning the foot in,
causing her inability to walk. In addition, because of the
muscle imbalances from the neurological condition of
chronic regional pain syndrome, I would also recommend
fusing digits 2, 3, 4 and 5. It is noted that medical treatment
of any neurological case would benefit from arthrodesis.
Anything short of an arthrodesis would not be acceptable.
I believe if we achieve the fusion of her foot and digits, it will
allow her to have a plantigrade foot to put pressure down
evenly and try to give her a stable foot and ankle, which will
allow her the ability to improve her walking.
Once again, I understand that the chronic pain that she has
will not go away with the surgery, but it may improve her
ability for independence to ambulate. Please note, the
patient is at risk for below-knee amputation and we would
like to avoid this at all cost. This has been discussed with the
patient.
{¶ 20} 10. Following an October 9, 2013 hearing, a district hearing officer
("DHO") issued an order granting the C-9 request for surgery.
{¶ 21} 11. KeyBank administratively appealed the DHO's order of October 9,
2013.
{¶ 22} 12. Following a November 18, 2013 hearing, an SHO issued an order
affirming the DHO's order of October 9, 2013. The SHO's order explains:
Authorization is GRANTED for pantalar arthrodesis and
hammertoe arthrodesis, as requested by Dr. Mendeszoon,
within Bureau of Workers' Compensation/Industrial
Commission of Ohio/Managed Care Organization rules,
regulations, and guidelines. This is an attempt to reduce
pain; stabilize the foot; improve the ability to walk; eliminate
the need for a brace and to help reduce or prevent the
possible risk for a below the knee amputation because of the
positioning of the foot from this injury.
This is based upon the reports of: Dr. Mendeszoon, dated
03/14/2013, 07/31/2013 and 09/20/2013. This order is also
based upon the credible testimony of the injured worker as
noted herein, which the Hearing Officer finds persuasive.
No. 15AP-1018 9
(Emphasis sic.)
{¶ 23} 13. On January 21, 2014, relator underwent surgery performed by Dr.
Mendeszoon. In his three-page operative report, Dr. Mendeszoon describes the surgical
procedures performed:
[One] Left pantelar arthrodesis.
[Two] Left Steindler stripping of the planter musculature,
plantar fascia.
[Three] Left flexor tenotomies 2, 3, 4, and 5.
{¶ 24} 14. On May 13, 2014, relator began post-operative physical therapy at a
frequency of twice per week at NovaCare Rehabilitation.
{¶ 25} 15. The NovaCare "Daily Note" regarding relator's February 9, 2015 visit,
states:
Subjective Examination
***
 Climbing She reports ability to go up/down 10
carpeted stairs inside with quad cane,
supervision by husband
 Mobility/Transfers Independent, requires more time
***
Daily Comments:
 Sandra reports that she has been able to "take a few
steps" without using her cane "but has it nearby in case I lose
my balance." She reports losing her balance while walking
with cane in kitchen and hitting her hand off cabinet
sometime last week. She states that she has been able to go
up 10 steps (carpeted) inside and then back down; at night
she can go up all 15 as long as she is not coming right back
down; "needs a break." She reports that she sees pain
management doctor tomorrow.
{¶ 26} 16. On April 3, 2015, after some 11 months of therapy, NovaCare notes
indicate:
[Patient] with independence using quad cane in [physical
therapy] clinic, in home with occasional use of crutches if
No. 15AP-1018 10
[patient] has increased pain, swelling of [left] foot. [Patient]
reports now being able to go up/down inside stairs with cane
(carpeted steps). [Patient] now progressed to 46 steps in
[physical therapy] clinic without quad cane; gait antalgic due
to lack of mobility of fixed [left] ankle joint.
{¶ 27} 17. On June 5, 2015, relator was discharged by NovaCare from her
therapy. The discharge summary states:
[Patient] with independence using quad cane in [physical
therapy], in home with occasional use of crutches if [patient]
has increased pain, swelling of [left] foot. [Patient] reports
now being able to go up/down inside stairs with cane
(carpeted steps). [Patient] now progressed to 150+steps in
[physical therapy] clinic without quad cane; gait antalgic due
to lack of mobility of fixed [left] ankle joint (previously was
46 steps at last re-evaluation). Patient gaining independence
with functional mobility with least restrictive AD.
{¶ 28} 18. Earlier, on February 28, 2015, Dr. Mendeszoon wrote:
Exam: Patient legs looks better today. She is scheduled for
sympathetic blocks this week. Patient ankle and foot aren't
very good position and the foot is warm with palpable pulses.
She is able to wiggle her toes. Foot alignment looks very
good. X-rays reveal hardware stable and there appears to be
healing of the fusion sites.
At this time the bones even seem to be becoming more
dense. She has stop[ped] smoking as well. The patient does
have pain with her right shoulder and I believe she has a
rotator cuff injury tendinitis. She has problems doing
motions of the right shoulder and I believe this is from
compensation of using crutches and cane to her last several
years. I would like to see if we can get physical therapy or get
a orthopedic evaluation of the shoulder.
Because the patient's brace is extremely heavy and she is
very frail and weak I think we can now proceed with a new
brace such as an Arizona brace. Her right she was weight
tubing for right foot is causing for irritation or pre-
ulcerations. [sic] These custom shoes do not fit her properly.
I believe we can progress the patient to a walking shoe
regular shoes with an Arizona brace on left side. By getting
her out of this double upright AFO and heavy shoe an
No. 15AP-1018 11
Arizona brace or regular sneaker should be extremely helpful
and much more light weight issue allowed to ambulate more
comfortably.
I believe that the patient will never go back to work. From
my perspective from a surgical procedure I believe she is at
maximal medical improvement however she still has a
psychological issues [sic] and the depression and the chronic
regional pain syndrome. This will always be ongoing.
Lastly the patient would benefit from a walk-in shower to
make an adaption in her house so she doesn't fall by using
her current situation.
{¶ 29} 19. On February 25, 2015, just three days prior to the February 28, 2015
office note, Dr. Mendeszoon wrote to relator's counsel:
I am writing to request that you add lower extremity limb
disuse nonfunctional extremity to the above-referenced
patient's claim.
As a physician who is familiar with the case, Sandra Waite
has suffered the worst case of complex regional pain
syndrome I have seen in my twenty-year career. She still
struggles with continued pain, dysfunction and inability to
walk and do any normal activities.
Sandra still requires special braces and shoes and continues
to have periodic sympathetic blocks to manage her pain. She
is approximately a year and a half out from pan talar
arthrodesis of her foot and ankle. This procedure was to
correct the severe pseudo-club foot deformity she developed
from her advanced complex regional pain syndrome.
It is my medical opinion and expertise that this patient will
never be able to walk on her left leg again. I believe the best
she can hope for is to be able to stand and pivot and possibly
do minimal activities to keep some form of living
independently. It is also a strong possibility that Sandra may,
in the future, receive a below knee amputation if her
dysfunction, disability and pain are uncontrollable.
{¶ 30} 20. On March 2, 2015, citing the February 25, 2015 report of Dr.
Mendeszoon, relator moved "that she be awarded a total functional Loss of Use of the
left leg."
No. 15AP-1018 12
{¶ 31} 21. Relator's March 2, 2015 motion prompted a May 4, 2015 examination
by Paul C. Martin, M.D. In his six-page narrative report, Dr. Martin states:
On the date of injury, Ms. Waite stated she was employed as
a team lead/collections. She reported on this particular date,
she was sitting at her desk and when she got up, was
unaware that her right leg was wrapped in a cord and she
lost her balance and fell. She reported being initially seen at
a local urgent care clinic and stated x-rays were obtained at
that time. She was then referred to a podiatrist, Dr.
Mendeszoon, who has continued to be her physician of
record to this date. She reported that due to persistent
difficulties with her foot, she was further evaluated with an
MRI scan and afterwards stated she was casted for several
weeks and then placed into a boot. She then reported being
provided physical therapy over a several-month period of
time; however, this resulted in no benefit. Ms. Waite stated
she eventually underwent a fusion procedure involving her
ankle and foot in January 2014, which was again followed by
a course of physical therapy. She reported that she
unfortunately developed a staph infection, which required an
additional debridement procedure and also a PICC line for
antibiotic treatment.
Ms. Waite had also reported that she was identified as having
complex regional pain syndrome, and has had several
different sympathetic blocks provided by Dr. Pahr, who is a
pain management physician. She reported that the blocks do
help for a several week period of time and stated her last
block was in April 2015. She reported Dr. Mendeszoon has
currently recommended that she be provided a new brace
which she stated will hopefully be much easier for her to
utilize on her left leg. Ms. Waite stated that she had initially
required usage of a walker and crutches for a several-month
period of time and stated that since approximately
December 2014, she has been utilizing and been instructed
in usage of a quad cane. She reported that she began to
develop some difficulties with her right shoulder stating she
believes this is due to her reliance on her right arm especially
when she leans on her right arm when utilizing crutches and
the quad cane when she ambulates. She reported that she
typically will utilize either crutches or a quad cane while at
home. She reported having limited abilities to walk or stand,
stating that she requires either usage of crutches or quad
cane when she does so. She continues to experience
No. 15AP-1018 13
significant pain in the left lower leg along with occasional
discoloration and recurrent swelling of the foot.
***
PHYSICAL EXAMINATION:
Physical examination revealed a well-developed, well-
nourished female who arrived for today's examination in a
wheelchair and stated this is much easier for her to get
around when she has to walk for any period of time. She was
accompanied by her husband who stayed in attendance
during the entire evaluation process. Her height was found
to be 64 1/2 inches, weight was 111 pounds, and blood
pressure was 130/78.
Examination of the left leg revealed that Ms. Waite did
appear with a brace on her leg which was removed for the
purpose of today's examination. In examining the left leg
from the knee distally, there was a moderate degree of
muscle atrophy in a diffuse pattern. There was skin
discoloration and some swelling over the ankle. There was
allodynia primarily involving the distal third of the leg
extending into the ankle and foot. No range of motion was
possible at the ankle as this was previously fused. Ms. Waite
exhibited some ability to flex and extend the toes of her foot.
There were well-healed scars from the previous surgical
procedure. There was a small area of redness over the dorsal
portion of the foot which Ms. Waite reported was something
she recently developed and for which she will be seeing her
physician in the near future.
Ms. Waite was asked if she could ambulate during today's
examination. She did so utilizing her quad cane, but did so in
a fairly slow and measured manner utilizing her left leg for
overall ambulation and balance.
***
ASSESSMENT:
Sandra Waite's stated history, physical examination findings,
and review of the enclosed medical records and diagnostic
study reports were all used as the sources of information and
facts upon which my medical opinion and report were based.
According to the enclosed records, Ms. Waite's claim has
been allowed for "left ankle sprain, left ankle midfoot
No. 15AP-1018 14
fracture and sprain, left calcaneal fracture, chronic regional
pain syndrome, and major depression with single episode."
For the purpose of this examination, I have accepted all of
the objective clinical findings identified by Ms. Waite's
evaluating and treating physicians, but not necessarily their
conclusions. All opinions offered in this report are held to a
reasonable degree of medical certainty.
[One] In your medical opinion, is there sufficient
medical evidence to warrant a total functional loss
of use of her left leg?
Based upon my review of the provided medical records and
Ms. Waite's symptoms and clinical findings, I do not identify
sufficient medical evidence that would support total
functional loss of use of the left leg. Ms. Waite is limited in
her usage of her left leg; however, still utilizes the left leg for
balance and ambulation. In addition, review of the recent
physical therapy notes from February 9, 2015 reveals the
following reported abilities "she reports ability to go
up/down 10 carpeted stairs inside with quad cane,
supervision by husband; is independent with mobility and
transfers; reports being able to stand for 30 to 40 minutes
and also is able to use a quad cane in her own kitchen and on
carpet for 20 minutes at times."
It is my opinion Ms. Waite does exhibit certain residual
functional use of her left leg, although is limited due to the
current allowed conditions under this claim.
[Two] Based solely on the allowed conditions of this
claim, is any further treatment appropriate and
necessary? If so, please provide a detailed treatment
plan and duration that this treatment should be
implemented.
It is my medical opinion that treatment at this point in time
would be considered treatment to help maintain a maximum
level of benefit/improvement. Such treatment would include
periodic usage of sympathetic blocks, should they continue
to provide sufficient improvement with her condition,
continuation of oral medications to help manage her
symptoms and also be provided appropriate
braces/ambulatory aids to help maintain a maximum level of
No. 15AP-1018 15
function. It is my medical opinion that such treatment will
likely be necessary for the foreseeable future.
[Three] Dr. Mendeszoon has continued to disable
the claimant from work until an estimated date of
May 23, 2015. In your medical opinion, is the
claimant temporarily and totally disabled as directly
related to the allowed condition of this claim, or [is]
she capable of returning to work full duty or with
restrictions? If restrictions are necessary for the
claimant to work, please list specific restrictions
and length of time that these restrictions should be
implemented. Please also include whether these
restrictions are temporary or permanent.
It is my medical opinion as it relates to the allowed physical
condition in this claim, Ms. Waite is not physically capable of
returning to an unrestricted work environment. She is
physically capable of working in a position where she would
be allowed to sit the majority of the day with minimal
walking or standing activities. It is my opinion restrictions
would be considered permanent in nature, as her condition
is not expected to improve nor resolve in the foreseeable
future.
[Four] In your medical opinion has the claimant
reached maximum medical improvement for the
allowed conditions of this claim? If the claimant is
not yet MMI, when will this status be reached?
Ms. Waite has, at this time, been provided all appropriate
treatment modalities that would reasonably be expected to
maximally improve and/or resolve the allowed physical
conditions under this claim. At this time, it is my opinion
Ms. Waite has experienced the maximum level of benefit
from the treatment provided. Any additional treatment
provided at this point in time would be considered treatment
to help maintain a maximum level of benefit and not
expected to result in any additional functional or physiologic
improvement. As such, Ms. Waite has at this point reached a
treatment plateau from which no additional functional or
physiologic improvement can be expected to occur despite
providing additional treatment or rehabilitative measures,
and has reached maximum medical improvement for the
allowed physical conditions under this claim.
No. 15AP-1018 16
(Emphasis sic.)
{¶ 32} 22. On May 4, 2015, at the request of KeyBank, a private investigator
employed by Sedgwick conducted surveillance on relator's activities at her residence,
and at the medical office of Dr. Martin. The investigator obtained a video of relator's
activities and he issued a six-page report. The Sedgwick report states:
Monday, May 4, 2015
***
6:00 am
The TIG investigator commenced surveillance at the
claimant's residence * * *. Stationary surveillance was
established just east of the residence with a view of the front
and driveway.
6:00 am - 8:28 am
No pertinent activity was observed. No one pertinent arrived
or departed the area. No change or activity observed.
Stationary surveillance was maintained.
8:29 am - 8:40 am (video)
The claimant was observed as she sat on a swing smoking a
cigarette and drinking a beverage from a coffee cup using her
right arm/hand on the front porch of the residence. An
unidentified white male exited the residence carrying a
coffee cup and joined her on the front porch. The claimant
was observed slightly swinging and conversing with the
male.
***
8:51 am
The investigator departed the residence en route to the
claimant's 10:30 am medical appointment at the office of Dr.
Paul Martin * * *.
9:17 am
The investigator arrived at the address of the medical
appointment * * *, departed the surveillance vehicle, entered
the medical facility and assumed a seat in Dr. Martin's
waiting room to await the claimant's arrival.
***
No. 15AP-1018 17
10:12 am
The claimant and the previously-observed male entered Dr.
Martin's office. The claimant was in a wheelchair and
wheeled herself to the front window while the male assumed
a seat in a chair. The claimant identified herself to the desk
personnel as "Sandra Waite."
***
10:13 am
The investigator departed Dr. Martin's office and established
stationary surveillance outside the medical facility
overlooking two of three possible exits.
***
12:15 pm
With no pertinent activity observed, the investigator
departed the area en route to the claimant's residence.
12:33 pm
The investigator arrived back at the claimant's
residence * * *. Upon arrival, no vehicles were observed and
no activity was noted. The investigator established a
stationary surveillance position overlooking the residence.
***
1:00 pm - 1:05 pm (video)
The claimant was observed sitting, slightly swinging, in the
front porch swing.
1:06 pm (video)
The claimant exited the swing, stood up with the cane in her
right hand, picked up a can of soda with her left hand,
walked into the residence, and closed the door going out of
observation.
***
1:23 pm - 1:28 pm (video)
The claimant was observed again sitting, slightly swinging in
the front porch swing. The claimant was wearing glasses and
looking down towards her lap and talked on her cellular
telephone while smoking. She held the telephone in her right
No. 15AP-1018 18
hand and was observed discarding a cigarette by reaching
behind her and to the left with her left hand/arm.
1:29 pm - 1:31 pm (video)
The claimant was observed talking on her cellular phone
using her right hand while sitting in the front porch swing.
Vehicle 881YOX arrived at the claimant's residence, driver
unobserved.
1:32 pm (video)
The claimant exited the porch swing, picked up the can of
soda with her right hand and transferred it to her left hand,
picked up her cane with her right hand, and walked toward
the front door of the residence, holding the cellular phone up
to her right ear with her right shoulder, entered the
residence and closed the door, going out of observation.
{¶ 33} 23. Following a May 28, 2015 hearing, a DHO issued an order awarding
R.C. 4123.57(B) scheduled loss compensation for loss of use of the left leg. The DHO
relied upon the February 25, 2015 report of Dr. Mendeszoon, as well as relator's
extensive testimony at the hearing. The DHO's order explains:
[T]he request for a scheduled loss/loss of use award is
granted to the extent of this order.
As such, the District Hearing Officer orders that
compensation for this request be paid in the normal and
customary manner pursuant to R.C. 4123.57(B).
Counsel for the Injured Worker indicated there has been no
prior permanent partial disability award in regard to this
claim.
In support of this decision, the District Hearing Officer relies
on the report of Mark Mendeszoon, D.P.M., dated
02/25/2015. Dr. Mendeszoon opined that the Injured
Worker has suffered one of the worst cases of complex
regional pain syndrome that he has seen in his career. He
further noted she still struggles with continued pain,
dysfunction and inability to walk and do any normal
activities.
He further opined that the Injured Worker still requires
special braces and shoes and continues to have periodic
sympathetic blocks to manage her pain. Dr. Mendeszoon
No. 15AP-1018 19
concluded that the Injured Worker will never be able to walk
on her left leg again. He opined that the best she can hope for
is to be able to stand and pivot and possibly do minimal
activities to keep some form of living independently. He
further opined that it was a strong possibility that the
Injured Worker may, in the future, receive a below knee
amputation if her dysfunction, disability and pain are
uncontrollable. As such, it was his recommendation that the
Injured Worker has a non-functional left lower extremity
limb disuse as a result of her industrial claim.
The Injured Worker presented at today's hearing in a
wheelchair, wearing a brace on her left leg.
The Injured Worker was adamant in her testimony that she
is unable to walk without anyone supporting her without use
of a gait belt. The Injured Worker testified that she is
absolutely unable to walk without some form of assistance.
The Injured Worker testified that she has been in therapy for
one year and in that time has made "slight improvement."
The Injured Worker testified that she has not had any
therapy since 04/30/2015 and to her knowledge, no
additional therapy is being requested. In fact, the Injured
Worker testified that the therapists have told her that [they]
do not know what to do with her anymore as to future
treatment.
The Injured Worker testified while in therapy, which is one
hour in duration, she has two physical therapists, located on
her left and right side. Both therapists hold the strap on the
safety belt, for her balance. The Injured Worker testified that
when she does walk in therapy, she wears her brace. The
Injured Worker testified that she takes ten steps, takes a
break and sits down for a period of 2-3 minutes, takes
another ten minutes [sic], repeats the break, walks another
ten steps, repeats the break and has testified that the most
she has been able to walk is 46 steps. The Injured Worker
testified the entire time this process is going on, the aides are
holding the belts on each side of her, thereby assisting her
with balance.
In her home, the Injured Worker testified that when she goes
up the stairs in her home, she crawls on all fours and goes
down the steps on her rear end. The Injured Worker testified
that she cannot walk up the stairs in her home by holding a
rail or with any use of an ambulatory device.
No. 15AP-1018 20
The Injured Worker denied that she is able to stand for any
continuous amount of time, such as 30 to 40 minutes, which
is outlined in the report of Paul Martin, M.D., dated
05/04/2015.
The Injured Worker testified that she is able to transfer from
the wheelchair and can transfer into the shower. The Injured
Worker testified that she cannot stand in the shower, but sits
on a shower seat.
The Injured Worker testified that when she is utilizing her
quad cane in her kitchen or on carpet, her husband is present
and utilizing the safety belt on * * *.
The District Hearing Officer finds the evidence persuasive
that the Injured Worker's left leg is functionally useless for
all practical purposes and intents. The District Hearing
Officer does not find that the Injured Worker has to
demonstrate an absolute loss of function, but rather only a
functional loss is required.
The District Hearing Officer finds that when taking into
consideration a scheduled loss award, the proper inquiry is
whether, taking into account both medical findings and real
functional capacity, the body part for which the scheduled
loss award is sought is, for all practical purposes, unusable to
the same extent as if it had been amputated or otherwise
physically removed.
The District Hearing Officer finds the Injured Worker has
met her burden of proof as to this issue.
Therefore, the C-86 Motion is granted to the extent of this
order.
The District Hearing Officer has reviewed and considered all
evidence prior to rendering this decision. This order is based
on the report of Dr. Mendeszoon, dated 02/25/2015, and
evidence and arguments adduced at today's hearing,
including the testimony of the Injured Worker.
{¶ 34} 24. KeyBank administratively appealed the DHO's order of May 28, 2015.
No. 15AP-1018 21
{¶ 35} 25. Following a July 27, 2015 hearing, an SHO issued an order that
vacates the DHO's order of May 28, 2015, and denies relator's March 2, 2015 motion.
The SHO's order explains:
The Staff Hearing Officer denies the request for scheduled
loss award for functional loss of use of the left leg, as not
substantiated by the medical evidence on file.
This finding is based upon the independent medical
examination report of Paul Martin, M.D. dated 05/04/2015
indicating that there is insufficient medical evidence to
support a total functional loss of use of the left leg. Dr.
Martin specifically finds Injured Worker, while limited in her
usage of her left leg, still utilizes the leg for balance and
ambulation. Dr. Martin further comments that the physical
therapy notes from 02/09/2015 forward, document Injured
Worker's ability to go up and down ten carpeted stairs with
her quad cane, notes independence with mobility and
transfers, and reports the ability to stand greater than 30
minutes.
The Staff Hearing Officer has additionally reviewed the video
surveillance on 05/04/2015 confirming Injured Worker's
ability to ambulate with her quad cane independently.
The Staff Hearing Officer finds based upon the Injured
Worker's ability to ambulate independently with the use of
the cane, that she fails to meet the requisite elements for a
scheduled loss award for total functional loss of use of the
left leg.
{¶ 36} 26. On September 1, 2015, another SHO mailed an order refusing relator's
appeal from the SHO's order of July 27, 2015.
{¶ 37} 27. On November 5, 2015, relator, Sandra Waite, filed this mandamus
action.
Conclusions of Law:
{¶ 38} It is the magistrate's decision that this court deny relator's request for a
writ of mandamus, as more fully explained below.
No. 15AP-1018 22
Commission Denial of the Motion for an Award for Loss of Use of a Leg
{¶ 39} R.C. 4123.57(B) provides for a schedule of compensable losses for
enumerated body parts. For the "loss of a leg," the statute provides for an award of 200
weeks of compensation.
{¶ 40} "Loss" within the meaning of the statute includes not only amputation, but
also the loss of use of the affected body part. State ex rel. Wyrick v. Indus. Comm., 138
Ohio St. 3d 465, 2014-Ohio-541, ¶ 10 (citing State ex rel. Moorehead v. Indus.
Comm., 112 Ohio St. 3d 27, 2006-Ohio-6364).
{¶ 41} The loss of use need not be absolute if the claimant has "suffered the
permanent loss of use of the injured bodily member for all practical intents and
purposes." Wyrick at ¶ 10, citing State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102
Ohio St. 3d 341, 2004-Ohio-3166, ¶ 12.
{¶ 42} Alcoa is the seminal case on the subject of R.C. 4123.57(B) loss of use.
Therefore, it is helpful to review the Alcoa case.
{¶ 43} In Alcoa, the court considered the loss of use application of a claimant
whose left arm had been amputated below the elbow. Hypersensitivity prevented the
claimant from using a prosthesis, but his employer nevertheless opposed compensation
for a total loss of use of the arm, arguing that the claimant had been observed tucking a
paper under his remaining arm segment and using his arm segment to push open a car
door. Alcoa claimed that these functions would be foreclosed to one whose arm had
been severed at the shoulder and, thus, precluded a total loss award. See State ex rel.
Kroger Co. v. Johnson, 128 Ohio St. 3d 243, 2011-Ohio-530, ¶ 11.
{¶ 44} The Alcoa court rejected Alcoa's argument:
Scheduled awards pursuant to R.C. 4123.57(B) compensate
for the "loss" of a body member and were originally confined
to amputations, with the obvious exceptions of hearing and
sight. In the 1970s, two cases - State ex rel. Gassmann v.
Indus. Comm. (1975), 41 Ohio St. 2d 64, 70 Ohio Op. 2d 157,
322 N.E.2d 660, and State ex rel. Walker v. Indus. Comm.
(1979), 58 Ohio St. 2d 402, 12 Ohio Op. 3d 347, 390 N.E.2d
1190 - construed "loss," as similarly used in R.C. 4123.58, to
include loss of use without severance. Gassmann and Walker
both involved paraplegics. In sustaining each of their
scheduled loss awards, we reasoned that "for all practical
No. 15AP-1018 23
purposes, relator has lost his legs to the same effect and extent
as if they had been amputated or otherwise physically
removed." Gassmann, 41 Ohio St. 2d at 67, 70 Ohio Op. 2d 157,
322 N.E.2d 660; Walker, 58 Ohio St. 2d at 403-404, 12 Ohio
Op.3d 347, 390 N.E.2d 1190. Alcoa urges the most literal
interpretation of this rationale and argues that because
claimant's arm possesses some residual utility, the standard
has not been met. The court of appeals, on the other hand,
focused on the opening four words, "for all practical
purposes." Using this interpretation, the court of appeals
found that some evidence supported the commission's award
and upheld it. For the reasons to follow, we affirm that
judgment.
Alcoa's interpretation is unworkable because it is impossible
to satisfy. Walker and Gassmann are unequivocal in their
desire to extend scheduled loss benefits beyond amputation,
yet under Alcoa's interpretation, neither of those claimants
would have prevailed. As the court of appeals observed, the
ability to use lifeless legs as a lap upon which to rest a book is
a function unavailable to one who has had both legs removed,
and under an absolute equivalency standard would preclude
an award. And this will always be the case in a nonseverance
situation. If nothing else, the presence of an otherwise useless
limb still acts as a counterweight - and hence an aid to balance
- that an amputee lacks. Alcoa's interpretation would foreclose
benefits to the claimant who can raise a mangled arm
sufficiently to gesture or point. It would preclude an award to
someone with the hand strength to hold a pack of cards or a
can of soda, and it would bar - as here - scheduled loss
compensation to one with a limb segment of sufficient length
to push a car door or tuck a newspaper. Surely, this could not
have been the intent of the General Assembly in promulgating
R.C. 4123.57(B) or of Gassmann and Walker.
Id. at ¶ 10-11.
{¶ 45} Because relator's situation has involved her use of a double upright ankle
foot orthosis (AFO) brace, custom made shoes, and a quad cane, the parties cite to State
ex rel. Richardson v. Indus. Comm., 10th Dist. No. 04AP-724, 2005-Ohio-2388.
{¶ 46} On November 7, 2001, John Richardson, sustained serious injury when he
fell approximately 40 feet from a "cherry picker." Following allowance of the industrial
claim, Richardson moved for an R.C. 4123.57(B) scheduled loss award for an alleged loss
No. 15AP-1018 24
of use of his left foot. Richardson's motion prompted the Ohio Bureau of Workers'
Compensation to seek a file review from M.E. Gibson, M.D. On September 17, 2003, Dr.
Gibson issued his report.
{¶ 47} Richardson's motion also prompted the commission to have relator
examined by Keith Wilkey, M.D. Dr. Wilkey examined Richardson on October 14, 2003,
and then issued a report.
{¶ 48} Following a March 19, 2004 hearing, an SHO issued an order denying
Richardson's motion for an R.C. 4123.57(B) award for an alleged loss of use of his left
foot. In the order, the SHO stated reliance upon the reports of Drs. Gibson and Wilkey.
In the order, the SHO noted that "Dr. Gibson advised that the injured worker does
ambulate with the use of a foot drop brace and to this extent, the left ankle and foot are
functional." Id. at ¶ 21. The SHO also notes that Dr. Wilkey opined that although the
injured worker's injury is significant and debilitating, the injured worker has a
functional platform from which to ambulate. Id. at ¶ 21.
{¶ 49} Following commission denial of his motion, Richardson filed a mandamus
action in this court.
{¶ 50} As the magistrate noted in his decision, one of the issues was whether the
commission abused its discretion by determining that Richardson retained significant
functional capacity in his left foot through the use of a corrective brace for the foot drop.
Id. at ¶ 37.
{¶ 51} In its decision adopting the magistrate's decision, this court, in
Richardson, reviewed the reports of Drs. Gibson and Wilkey upon which the
commission had relied to deny the motion.
{¶ 52} This court stated:
He argues that, while he may be ambulatory with the aid of a
foot drop brace, he is still entitled to a loss of use award
because his "foot is painful with use, it is worse than if it
were non-existent * * *." (Objection of Relator, at 4.) But the
standards set forth by all of the aforementioned authorities
do not turn on the question whether the claimant's overall
situation, with respect to pain and suffering, is better or
worse than it would have been had his limb been amputated.
Therefore, claimant's argument in this regard is not well
taken.
No. 15AP-1018 25
Rather, when a claimant seeks a scheduled loss award, the
proper inquiry is whether, taking into account both medical
findings and real functional capacity, the body part for which
the scheduled loss award is sought is, for all practical
purposes, unusable to the same extent as if it had been
amputated or otherwise physically removed. We agree with
the magistrate's conclusion that the evidence upon which the
commission relied supports its finding that relator's foot
does not meet this standard.
Relator argues that Dr. Wilkey's report did not address the
proper body part (that is, the left foot) because Dr. Wilkey
focused on the "sciatic nerve lesion" allowance. However, Dr.
Wilkey noted subjective and objective findings with respect
to pain in relator's left leg and foot, the fact that relator walks
with a "significant limp," "complete loss of active
dorsiflexion and eversion" in relator's ankle, and lack of
dorsiflexion of the toes, as well as the sensations present in
relator's foot. Dr. Wilkey opined that, although this injury is
significant and debilitating, it does not constitute a total,
permanent loss of use. It clearly does not equate with an
amputation."
In his report, Dr. Gibson explicitly indicated that the
question posed to him was whether the allowed conditions
have resulted in a total, permanent loss of use of the left foot
as if amputated. He equated weight-bearing capability with
the absence of a total and permanent loss of use. He took
into account the lack of flexion in the foot, as well as the
pain, numbness and weakness present. However, he noted
that with a foot drop brace relator can ambulate. Based upon
this capability, Dr. Gibson opined that the foot is functional
and "could not be compared to an amputation or total loss of
function of the left foot." The findings in the Wilkey and
Gibson reports do not render relator's situation similar to
that in Alcoa, where the claimant's partially amputated arm
lacked functional capacity because it could be used for little
other than petting a dog or pushing open a car door. This
case is also not akin to Walker, in which the claimant's
paralyzed legs could not be used except as a resting place for
reading material or a plate of food.
Relator argues that his affidavit, in which he describes the
constant pain he experiences in his left foot, demonstrates
that the Wilkey and Gibson reports are fatally flawed because
they do not take into account relator's chronic pain. But
No. 15AP-1018 26
relator's pain need not be considered by these experts or the
commission, even under Schultz and Timmerman Truss, if
the same does not affect his functional capacity. No expert,
including relator's examining physician, Dr. Siegel, reported
that relator's pain is so intense and uncontrollable that it
renders his foot unable to bear weight, resulting in an
inability to walk. Here, the reports of Drs. Wilkey and Gibson
establish that relator can walk, albeit with the help of a
brace. Thus, the commission did not abuse its discretion in
finding that relator has not sustained a total loss of its use.
The court cannot imagine a more paramount use for a foot
than the activity of walking.
(Emphasis sic.) Id. at ¶ 6-10.
{¶ 53} The parties here also argue State ex rel. Bushatz v. Indus. Comm., 10th
Dist. No. 10AP-541, 2011-Ohio-2613, a case that applies the Richardson case.
{¶ 54} Ronald Bushatz sustained serious low back injuries and a "left foot drop"
from a September 9, 1993 work-related incident. On July 10, 2008, Bushatz moved for
an R.C. 4123.57(B) award for loss of use of his left foot. In support of his motion,
Bushatz submitted a June 3, 2008 report from Nancy Renneker, M.D. With regards to
his left foot, Dr. Renneker reported:
Ronald Bushatz complains of * * * constant paresthesia
about left ankle and Ronald Bushatz reports that he has
constant "pins and needles" throughout entire left foot.
Ronald Bushatz reports that by the end of his day his left
lower leg-left ankle and foot is "red". Ronald Bushatz denies
any left lower leg swelling. * * * Ronald Bushatz is able to
stand for a maximum interval of 10 minutes, able to walk a
maximum distance of 40 to 50 yards on a level surface and
Mr. Bushatz needs at least one sturdy railing to negotiate
steps. Ronald Bushatz is unable to run and Ronald Bushatz
reports that the further he walks that he [sic] more difficult it
is to continue to walk due, in part, to left lower leg-left ankle
and foot weakness.
Bushatz, Appended Magistrate's Decision.
{¶ 55} On September 22, 2008, Dr. Renneker provided an addendum:
Based on medical records reviewed and my exam it is still my
medical opinion that Ronald Bushatz is entitled to a total
loss of use of his left ankle and foot due to persistent/chronic
ongoing left lower extremity radiculopathy with left foot slap
No. 15AP-1018 27
with gait. Ronald Bushatz has lost the ability to perform
many activities of daily living due to this condition and his
left foot and ankle due [sic] not perform as one would expect
a functional foot to perform. The foot is not missing so it is
capable of being a helper device in standing and walking but
it [is] functionally useless in performing these activities on a
regular basis. It is still my medical opinion that Ronald
Bushatz would benefit from a prescribed custom molded
right AFO (ankle-foot-orthosis) with a dorsi-assist. Without
this custom made brace, Ronald Bushatz is at risk for a flow-
through type injury as Mr. Bushatz must use excessive hip
flexion in order to clear his left ankle and foot during swing
phase of gait and Mr. Bushatz could easily trip if he does not
clear his left toes and he could then sustain a fall resulting in
a pending injury.
Bushatz, Appended Magistrate's Decision.
{¶ 56} Following a September 24, 2008 hearing, an SHO vacated the prior
decision of the DHO and awarded compensation to Bushatz for loss of use of the left
foot. The SHO order explains:
The injured worker testified that he has no feeling in his left
foot up to his mid-calf area. He has a severe left foot drop to
the extent that without his current brace, he would only be
able to walk by raising his left hip and knee high enough so
as to clear the distance to the next step. Since he has no
feeling in his foot, he cannot tell whether the foot is safely
settled in position; therefore, putting weight on his left foot
is problematic.
The injured worker now wears a brace that extends up to his
mid-calf and keeps his foot in one stable, flexed position.
With his brace, he can walk (though still with [a] lot of hip
and knee involvement), stand and bend down. Better stated,
"but for" his brace, he would be unable to walk, balance, or
stand.
Accordingly, it is concluded that the injured worker's mobility
relies exclusively upon his brace, as if his foot did not exist at
all.
Bushatz, Appended Magistrate's Decision.
No. 15AP-1018 28
{¶ 57} On January 13, 2009, the commission exercised continuing jurisdiction
over the SHO's order of September 24, 2008. In denying Bushatz's motion, the three-
member commission explained:
It is undisputed that the Injured Worker is able to walk, with
the left foot, as long as a foot-drop brace is utilized. This fact
pattern is substantially similar to the fact pattern in the
Richardson decision wherein the 10th District Court of
Appeals could not "imagine a more paramount use for a foot
than the activity of walking," Id. at page 10.
The Commission further finds that the correct standard, in
an alleged "loss of use" situation, is whether the Injured
Worker has suffered the permanent loss of use of the injured
bodily member, for "all practical intents and purposes." State
ex rel. Alcoa Building Products v. Indus. Comm. (2004), 102
Ohio St. 3d 341, 2004 Ohio 3166, 810 N.E.2d 946. The
Commission finds the Injured Worker retains significant, if
not complete functional use of the left foot, and in
accordance with the Alcoa decision, the Commission finds
the Injured Worker is not entitled to compensation for the
total loss of use of the left foot.
The Injured Worker argued that his foot is only functional
through the use of a foot-drop brace and that his entitlement
to loss of use compensation should be evaluated without
consideration given to the corrective device. The
Commission rejects this argument. R.C. 4123.57(B) does not
equate the loss of use of an extremity with its
unaided/uncorrected use. While compensation for loss of
vision is limited to that attributable to "uncorrected" vision,
no such limitation is enumerated for the loss of a foot. The
rules of statutory interpretation dictate that the Commission
not read into the statute a meaning not specifically
enumerated therein.
Moreover, the Richardson Court's evaluation did not hinge
upon the uncorrected use of the foot. Like the circumstances
herein, Richardson could not ambulate without a foot-drop
brace on his left foot. The Court considered whether the foot
was unusable as if it had been amputated, the Alcoa test, but
did not exclude from that consideration the aid rendered by
the brace.
No. 15AP-1018 29
Accordingly, the Commission finds the Injured Worker has
not lost the total use of his left foot, as evidenced by his
ability to walk with a brace. Compensation for loss of use of
the left foot is denied.
Bushatz, Appended Magistrate's Decision.
{¶ 58} Bushatz then filed a mandamus action in this court. Ultimately, this court
adopted the magistrate's decision.
{¶ 59} Relying upon Richardson, the Bushatz court denied the writ. The Bushatz
court states:
The magistrate found that the commission properly applied
the law and did not abuse its discretion by refusing to
evaluate relator's loss of use without consideration of the
correction provided by the foot brace. Accordingly, the
magistrate recommended that this court deny the requested
writ of mandamus.
***
* * * [W]e find the magistrate has properly determined the
pertinent facts and applied the appropriate law. We,
therefore, adopt the magistrate's decision as our own,
including the findings of fact and conclusions of law
contained therein.
Bushatz at ¶ 2, 4.
{¶ 60} Some observations are in order. The SHO's order of July 27, 2015 relies
exclusively upon the May 4, 2015 medical report of Dr. Martin for the relied upon
medical evidence (the SHO also stated reliance upon the May 4, 2015 video
surveillance).
{¶ 61} Thus, the SHO rejected the reports of treating podiatrist Dr. Mendeszoon,
and particularly his February 25, 2015 report submitted in support of relator's March 2,
2015 motion. It can be further observed that, just three days after the February 25, 2015
report, relator was examined on February 28, 2015 by Dr. Mendeszoon, who authored
extensive office notes.
No. 15AP-1018 30
{¶ 62} In his February 25, 2015 report, Dr. Mendeszoon opines that relator "will
never be able to walk on her left leg again." However, on February 28, 2015, Dr.
Mendeszoon wrote:
I believe we can progress the patient to a walking shoe
regular shoes with an Arizona brace on left side. By getting
her out of this double upright AFO and heavy shoe an
Arizona brace or regular sneaker should be extremely helpful
and much more light weight issue allowed to ambulate more
comfortably.
{¶ 63} Dr. Mendeszoon's reports of February 25 and 28, 2015 are inconsistent.
In any event, the reports were not relied upon by the commission.
{¶ 64} Thus, the main issue before this court is whether the May 4, 2015 report of
Dr. Martin provided some evidence upon which the commission can and did rely to
support denial of relator's motion. Clearly, Dr. Martin's report provides the some
evidence to support the commission's decision.
{¶ 65} As the SHO's order indicates, Dr. Martin reviewed the February 9, 2015
physical therapy notes which are previously described in the magistrate's findings of fact
at paragraph 15. Dr. Martin relied upon the February 9, 2015 physical therapy notes in
reaching his opinion that relator does not suffer loss of use of her left leg.
{¶ 66} The February 9, 2015 notes provided Dr. Martin with a medical basis
supporting his medical opinion. That is, as of February 9, 2015, relator had the "ability
to go up and down ten carpeted stairs with her quad cane, notes independence with
mobility and transfers, and reports the ability to stand greater than 30 minutes."
{¶ 67} It can be further noted that relator does not argue that Dr. Martin's report
is equivocal. State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St. 3d 649, 657 (1994).
Nor does relator argue that Dr. Martin's report is internally inconsistent. State ex rel.
Lopez v. Indus. Comm., 69 Ohio St. 3d 445 (1994); State ex rel. Taylor v. Indus. Comm.,
71 Ohio St. 3d 582 (1995). Moreover, relator does not argue that Dr. Martin applied an
incorrect standard for determining loss of use.
{¶ 68} Rather, relator suggests that Dr. Martin's report must be removed from
evidentiary consideration because allegedly Dr. Martin was unaware that relator had
No. 15AP-1018 31
used a so-called double upright ankle foot orthosis ("AFO") brace and that relator's left
leg is significantly shorter than her right leg. (Relator's Brief, 14.)
{¶ 69} As earlier noted, Dr. Mendeszoon's February 28, 2015 office note
recommends "getting her out of this double upright AFO and heavy shoe. [A]n Arizona
brace or regular sneaker should be extremely helpful * * *." In his February 25, 2015
report in support of the motion, Dr. Mendeszoon does not mention relator's use of a
brace or that one foot is significantly shorter.
{¶ 70} In his May 4, 2015 report, Dr. Martin reports that "Dr. Mendeszoon has
currently recommended that she be provided a new brace * * *." While Dr. Martin does
not date Dr. Mendeszoon's recommendation, in all probability, it is a reference to Dr.
Mendeszoon's February 28, 2015 office note.
{¶ 71} Moreover, in his report, Dr. Martin lists the medical records he reviewed.
Among the records listed is "[m]edical records from Dr. Mendeszoon, DPM."
{¶ 72} Given the above analysis, it can be presumed that Dr. Martin was aware of
Dr. Mendeszoon's February 28, 2015 office note regarding the "double upright AFO and
heavy shoe."
{¶ 73} Based upon the above analysis, it is clear that Dr. Martin's report is some
evidence supporting the commission's denial of relator's motion. Also, relator has failed
her burden of showing that the commission abused its discretion in rendering its
decision.
The Request to Allow Dr. Mendeszoon to Testify at Hearing by Telephone
{¶ 74} By letter dated July 22, 2015, relator's counsel wrote to the Cleveland
hearing administrator:
We respectfully request that Dr. [Mendeszoon], claimant's
physician of record, be granted approval to appear via
telephone for the hearing scheduled for Monday,
July 27, 2015 at 11:00 a.m. This request is being made
because Dr. [Mendeszoon] will be out of the country and is
not able to appear in person.
Dr. Mendeszoon's cell phone number is * * *.
{¶ 75} On July 23, 2015, the hearing administrator mailed the following decision:
No. 15AP-1018 32
Dr. Mendeszoon, Injured Worker's treating physician, has
requested to participate at the hearing scheduled on
07/27/2015 at 02:30 p.m. in Cleveland via telephone. That
request has been denied for the reason no good cause shown.
{¶ 76} As earlier noted, following a July 27, 2015 hearing, an SHO issued an
order denying relator's March 10, 2015 motion for an award for an alleged loss of use of
the left leg. The SHO's order of July 27, 2015 does not mention relator's July 22, 2015
request to allow Dr. Mendeszoon to testify by telephone.
{¶ 77} In her merit brief, relator argues here:
The Staff Hearing Officer abused her discretion by refusing
to allow Dr. Mendeszoon to appear via telephone at the SHO
hearing. Dr. Mendeszoon's testimony was requested in order
to allow him to explain how the condition of Relator's left leg
met the criteria for functional loss of use of the left leg. In
refusing to allow Dr. Mendeszoon's testimony, the Staff
Hearing Officer arbitrarily rejected medical evidence without
any knowledge as to what said evidence purported to be.
(Relator's Brief, 10.)
{¶ 78} In its brief, the commission points out that relator has no clear legal right
to have her physician testify in a workers' compensation case at the administrative level.
(Commission's Brief, 10.) The commission here further points out that relator failed to
proffer the testimony that relator wanted to present at the July 27, 2015 hearing.
(Commission's Brief, 10.)
{¶ 79} In its brief, KeyBank points out that relator "provided no information as to
what additional information, if any, would be made available through this request."
(KeyBank's Brief, 9.)
{¶ 80} In support of her position that the commission abused its discretion in
refusing to allow hearing testimony from Dr. Mendeszoon by telephone, relator cites no
statute, no administrative rule, nor any case.
{¶ 81} Notwithstanding relator's failure to cite to any authority in support of her
position, the magistrate notes Ohio Adm.Code 4121-3-09, which currently provides:
(A) Evidence and discovery.
No. 15AP-1018 33
(1) In every instance the proof shall be of sufficient quantum
and probative value to establish the jurisdiction of the
commission to consider the claim and determine the rights
of the employee injured worker to an award. Proof may be
presented by affidavit, deposition, oral testimony, written
statement, document, or other forms of evidence.
{¶ 82} While Ohio Adm.Code 4121-3-09(A)(1) provides that proof may be
presented by "oral testimony," it does not directly answer the question of whether a
commission hearing officer may allow testimony by telephone, nor does it present a
clear legal right to present testimony by telephone.
{¶ 83} It is axiomatic that in mandamus, the creation of the legal duty that a
relator seeks to enforce is the distinct function of the legislative branch of government,
and courts are not authorized to create the legal duty enforceable in mandamus. State
ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St. 3d 327, 2002-Ohio-2219.
{¶ 84} In mandamus, the relator must prove his or her entitlement to the writ by
clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St. 3d 446, 2011-
Ohio-6117.
{¶ 85} Based on the foregoing analysis, the magistrate finds that relator has failed
to prove by clear and convincing evidence a clear legal right to present Dr.
Mendeszoon's testimony by telephone.
{¶ 86} Accordingly, 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).