State ex rel. Meilstrup v. Indus. Comm. ( 2017 )

[Cite as State ex rel. Meilstrup v. Indus. Comm., 2017-Ohio-811.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. David G. Meilstrup, :
Relator, :
v. : No. 16AP-250
Industrial Commission of Ohio : (REGULAR CALENDAR)
and Intigral, Inc.,
:
Respondents.
:
D E C I S I O N
Rendered on March 7, 2017
On brief: Nager, Romaine & Schneiberg Co. L.P.A.,
Jerald A. Schneiberg, Jennifer L. Lawther, and Corey J.
Kuzma, for relator.
On brief: Michael DeWine, Attorney General, and
Andrew J. Alatis, for respondent Industrial Commission of
Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator David G. Meilstrup initiated this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order denying his request for a total loss of use award for his
left upper extremity and order the commission to find that he is entitled to that award.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
No. 16AP-250 2
appended decision, including findings of fact and conclusions of law, recommending this
court deny Meilstrup's requested writ of mandamus.
{¶ 3} Meilstrup has filed objections to the magistrate's decision. Meilstrup's first
objection asserts the magistrate applied the wrong standard in determining that the
commission did not abuse its discretion in denying his application for a total loss of use
award for his left upper extremity. In his second objection, Meilstrup contends the
magistrate erroneously stated that he did not challenge the commission's reliance on the
June 27, 2012 report of John G. Nemunaitis, M.D. Generally, Meilstrup challenges the
magistrate's recommendation that this court deny his requested writ of mandamus.
Meilstrup's objections lack merit.
{¶ 4} Because Meilstrup has filed objections, we must independently review the
record and the magistrate's decision to ascertain whether "the magistrate has properly
determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). In
order for this court to issue a writ of mandamus as a remedy from a determination of the
commission, the relator must show a clear legal right to the relief sought and that the
commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus.
Comm., 11 Ohio St. 2d 141 (1967). A clear legal right to a writ of mandamus exists where
the relator shows that the commission abused its discretion by entering an order which is
not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26
Ohio St. 3d 76 (1986). However, where the record contains some evidence to support the
commission's findings, there has been no abuse of discretion and mandamus is not
appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St. 3d 56 (1987).
{¶ 5} Here, the magistrate determined that because there is some evidence in the
record to support the commission's denial of Meilstrup's application for a total loss of use
award, he is not entitled to mandamus relief. The magistrate found that the November 9,
2012 report of Elizabeth Mease, M.D., constitutes some evidence supporting the
commission's denial. Additionally, the magistrate found that, even if Dr. Mease's report is
not considered, Dr. Nemunaitis' report independently constitutes some evidence
supporting the commission's denial. Meilstrup challenges these findings. According to
Meilstrup, Dr. Mease's report is not some evidence to support the commission's denial
because it does not address his "remaining practical functionality specific to his left upper
No. 16AP-250 3
extremity." (Nov. 3, 2016 Objs. to Mag. Decision at 5.) Meilstrup argues that
Dr. Nemunaitis' report, like Dr. Mease's report, is not some evidence to support the
commission's denial of his application because that report does not sufficiently address
his inability to use his left upper extremity.
{¶ 6} We agree with the magistrate's finding that Dr. Mease's report constitutes
some evidence. R.C. 4123.57(B) authorizes compensation to a claimant for the total loss
of a body part, such as the total loss of an arm. To qualify for compensation under R.C.
4123.57(B), the "claimant must demonstrate with medical evidence a total loss of use of
the body part at issue for all practical purposes." State ex rel. Varney v. Indus. Comm.,
143 Ohio St. 3d 181, 2014-Ohio-5510, ¶ 16, citing State ex rel. Alcoa Bldg. Prods. v. Indus.
Comm., 102 Ohio St. 3d 341, 2004-Ohio-3166. However, a claimant may qualify for a total
loss of use award under R.C. 4123.57(B) even if the body part retains some residual
function. Id., citing Alcoa.
{¶ 7} As the magistrate detailed, the physical findings of Dr. Mease indicate that
Meilstrup's left upper extremity retains use beyond residual function. Dr. Mease's report
indicates that Meilstrup had full range of motion of his left shoulder and nearly full range
of motion of his left elbow, with some loss of both flexion and extension in his left wrist.
In response to an inquiry as to whether Meilstrup's left upper extremity had lost practical
functionality, Dr. Mease answered in the negative and specifically opined that Meilstrup
had only mild loss of use of his left upper extremity. Although Dr. Mease did not
expressly state that Meilstrup had not lost the use of his left upper extremity "for all
practical purposes," her report provides evidentiary support for the commission's finding
that Meilstrup is not entitled to a total loss of use award for his left upper extremity. See,
e.g., State ex rel. Holderman v. Indus. Comm., 10th Dist. No. 12AP-32, 2012-Ohio-6022
(medical report relied on by the commission in denying loss of use award evidenced
compliance with the applicable standard even though the report did not use the phrase
"for all practical purposes" in concluding that the injured worker had not sustained a total
loss of use). Because Dr. Mease's report constitutes some evidence in support of the
commission's decision, we find it unnecessary to address the issue of whether
Dr. Nemunaitis' report also constitutes some evidence. Therefore, we do not adopt the
magistrate's analysis regarding Dr. Nemunaitis' report.
No. 16AP-250 4
{¶ 8} For these reasons, we overrule Meilstrup's first and second objections
insofar as he challenges the magistrate's determination that this court should deny his
requested writ of mandamus. To the extent Meilstrup's second objection challenges the
magistrate's findings concerning Dr. Nemunaitis' report, that objection is rendered moot.
{¶ 9} Following our independent review of the record pursuant to Civ.R. 53, we
find the magistrate correctly determined that Meilstrup is not entitled to the requested
writ of mandamus. The magistrate properly applied the pertinent law to the salient facts.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein, except we do not adopt the magistrate's
decision to the extent it analyzes Dr. Nemunaitis' report. We therefore overrule
Meilstrup's objections to the magistrate's decision and deny his request for a writ of
mandamus.
Objections overruled;
writ of mandamus denied.
SADLER and DORRIAN, JJ., concur.
No. 16AP-250 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. David G. Meilstrup, :
Relator, :
v. : No. 16AP-250
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Intigral, Inc., :
Respondents. :
MAGISTRATE'S DECISION
Rendered on October 20, 2016
Nager, Romaine & Schneiberg Co. L.P.A., Jerald A.
Schneiberg, and Corey J. Kuzma, for relator.
Michael DeWine, Attorney General, and Andrew J. Alatis,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 10} Relator, David G. Meilstrup, has filed this original action requesting that
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied his request for a loss of use award for
his left upper extremity, and ordering the commission to find that he is entitled to that
award.
No. 16AP-250 6
Findings of Fact:
{¶ 11} 1. Relator sustained a work-related injury on June 7, 2005 and his
workers' compensation claim has been allowed for the following conditions:
Medial epicondylitis, left; lateral epicondylitis, left;
neuropathy left ulnar nerve; reflex sympathetic dystrophy
left upper limb; psychogenic pain; major depressive
disorder, single episode; reflex sympathetic dystrophy right
upper limb; food/vomit pneumonitis; acute deep venous
thrombosis embolism distal lower extremity left; pulmonary
embolism/infarction left.
{¶ 12} 2. Relator has undergone several surgical procedures as a result of his
work-related injury.
{¶ 13} 3. Relator also submitted the July 26, 2012 office notes from Dr.
Hochman, wherein Dr. Hochman briefly set out the history of relator's injuries and
made the following brief physical exam findings:
He is alert and oriented. He is in no distress. He has the scar
in the midline cervical region. He has discoloration,
allodynia, and hypersensitivity throughout both upper
extremities. He has the swelling throughout the left lower
extremity.
{¶ 14} Thereafter, Dr. Hochman set out his plan for relator, stating:
We have reviewed the history of injury. The patient has been
diagnosed with the above pathologies. He had the spinal cord
stimulator implanted by Dr. Stanton-Hicks. He completed
post-operative rehabilitation. He saw Dr. Machado. He had
the revision surgery performed on March 14, 2012. At the
time of the surgery, he was intubated. Soon after the surgery,
he developed shortness of breath and pneumonia. He was
seen at Medina General Hospital and diagnosed with
pneumonia. He was transferred to the Cleveland Clinic
where he had a video assisted thoracic surgery. He was
discharged. He developed swelling throughout his left lower
extremity and recurrent shortness of breath. He followed up
at the Cleveland Clinic and was diagnosed with DVT
associated with pulmonary embolism. More likely than not,
the aspiration pneumonia, the DVT, and the pulmonary
embolism are flow through conditions. I will address that.
The patient will continue with the Coumadin. He is now off
the Voltaren. He will continue with the Savella and Lyrica.
No. 16AP-250 7
He will remain under the care of the psychologist and
psychiatrist. He is unable to return to his previous position
of employment. A Medco14 and C84 will be updated. He will
return in six weeks.
{¶ 15} 4. In September 2012, relator filed a C-86 motion requesting an award for
the "loss of use of bilateral upper extremity." In support of his motion, relator included
the September 6, 2012 report of his treating physician Todd S. Hochman, M.D., who
opined that, for all intents and purposes, relator had lost functional use of his upper
extremities, specifically stating:
Despite multiple surgeries, prescription medications,
multiple courses of physical therapy, a spinal cord stimulator
implantation, and a revision spinal cord stimulator
implantation, Mr. Meilstrup continues with significant
bilateral upper extremity symptomatology. Mr. Meilstrup's
complaints continue to be associated with objective findings
on physical examination, consistent with the pathologies
recognized in Claim No. 05353480. For a summary of all
physical examination findings, please refer to the office
notes. At this time, Mr. Meilstrup has substantial upper
extremity disability. Mr. Meilstrup has difficulty performing
routine daily activities, including personal hygiene. It is my
medical opinion that, for all intents and purposes, Mr. David
Meilstrup has lost functional use of his upper extremities as
a result of the June 7, 2005, work injury, and the pathologies
recognized within Claim No. 05-353480.
{¶ 16} 5. An independent medical examination was conducted by Elizabeth
Mease, M.D. In her November 9, 2012 report, Dr. Mease set forth the allowed
conditions in relator's claim, identified the medical records which she reviewed, and set
forth the following relevant findings upon physical examination:
Right arm: allodynia, full range of motion of shoulder, elbow,
wrist.
Left arm: surgical scars to left elbow, full range of motion of
left shoulder, left elbow flexion to 130 degrees, full extension
left elbow, normal supination/pronation left elbow,
flexion/extension 50 degrees left wrist, mild limitation in
mild flexion contracture both fingers, with passive range of
motion, there is full extension of the fingers, mild allodynia.
No. 16AP-250 8
Observation: when he was undressing for the examination,
he was noted to unbutton his shirt — his wife completed the
task for him.
***
Current findings reveal * * * allodynia both upper
extremities, discoloration left upper extremity, normal range
of motion of right shoulder/elbow/wrist, normal range of
motion left shoulder, mild limitation left elbow/left wrist, no
atrophy of the upper extremity. He has 1 of the clinical
criteria for RSD right extremity. He has 2 of the clinical
criteria for RSD left upper extremity.
{¶ 17} Thereafter, Dr. Mease was asked whether or not, in her opinion, relator
had sustained a total loss of use. Dr. Mease responded in the negative and explained as
follows:
There is minimal loss of use of the right upper extremity.
There is mild loss of use of the left upper extremity. There is
no atrophy and his range of motion of the joints of both
upper extremities is relatively preserved. He was observed to
be able to un-button his shirt, albeit in a slow fashion.
{¶ 18} 6. The matter was heard before a district hearing officer ("DHO") on
January 16, 2013. At that time, relator's attorney withdrew the request for scheduled
loss of use of relator's right upper extremity. Thereafter, the DHO determined that
relator was entitled to a one-half loss of use of his left arm, stating:
The Injured Worker is awarded a one half loss of use of his
left arm. This is based on the 11/09/2012 report of Dr.
Mease, the 06/27/2012 report of Dr. Nemunaitis, and the
09/06/2012 report of Dr. Hochman.
{¶ 19} 7. The June 27, 2012 report of John G. Nemunaitis, M.D., referenced in
the DHO order, was prepared in response to relator's earlier application for permanent
total disability compensation. At that time, Dr. Nemunaitis made the following findings
on physical examination:
The Injured Worker was alert and oriented. He has normal
body build. Functionally, he was reasonably independent
today. The severity of his RSD symptoms were not at their
No. 16AP-250 9
maximum severity today. He described his pain today as a
Level 5 out of 10.
The Injured Worker was independent in all his ADL
activities today. Although he demonstrated pain with
dressing activities, especially on the left. He appeared to have
minimal antalgia on the right. He is right-handed. It should
be noted that the left upper extremity was mildly red. There
was no described bluish discoloration. There was no
cyanosis. Skin temperature was mildly cooler on the left as
compared to the right. There was no edema of either upper
extremity. There was no significant skin dryness, however
there was some mild moisture of the left upper extremity.
Skin texture appeared to be normal. There was no soft tissue
atrophy.
There was no evident joint stiffness of the hand, although
there was restricted extension of the left elbow. Nail changes
were not remarkable, nor was the hair growth. There was
minimal allodynia of the left upper extremity.
In the right upper extremity, the examination did not show
any swelling, skin discoloration, temperature changes,
edema, pseudomotor changes, or trophic changes on the
right. There was no restriction of joint mobility.
Examination of both shoulders showed normal shoulder
range of motion. Examination of both wrists and hands,
including all fingers and thumbs bilaterally, showed normal
joint range of motion.
Elbow range of motion on the right was normal, including
flexion, extension, pronation, and supination. Joint range of
motion measures on the left elbow was 0 to 120 degrees
flexion, and on the right it was 0 to 140 degrees. Supination
and pronation on left and right was 80 degrees. There was a
scar of the ulnar nerve and tendon surgery on the left. There
was no scarring on the right. There was no edema. There was
no swelling of either elbow joint. There was no swelling of
the forearm bilaterally. There was no swelling of the hands,
wrists, or finger joints. Skin color was slightly reddish on the
left, with mild mottling. There was no cyanosis. There were
no nail trophic changes bilaterally, no tissue atrophy noted.
There was slight allodynia on the left, none on the right. The
skin temperature was slightly cooler on the left as compared
No. 16AP-250 10
to the right. Hair growth appeared to be normal bilaterally,
as was skin turgor.
The Injured Worker did have a positive Tinel sign over the
left ulnar nerve. There was no significant ulnar nerve motor
atrophy, but there was approximately 10% weakness of the
ulnar muscles on the left. There was no motor weakness on
the right. There was no swelling of the wrist, finger, or hand
on the right, and no trophic changes.
Sensory examination bilaterally again was intact, except for
approximately 10% reduced sensation in a distribution of the
ulnar nerve on the left. There was mild grip strength
reduction on the left, and no specific motor weakness as part
of manual muscle testing bilaterally. Reflexes were normal in
both upper extremities, as well as both lower extremities
There was no swelling of either elbow joint.
The Injured Worker did demonstrate pain with functional
use of the left upper extremity, including mobility of the
shoulder, wrist, and elbow. There was a minimal degree of
pain in the right upper extremity.
There was no localized tenderness over either elbow. There
was no medial epicondylitis tenderness. Range of motion of
the wrists, including wrist stress, was normal. There were no
clinical findings to suggest current epicondylitis.
{¶ 20} Thereafter, Dr. Nemunaitis opined that relator had a 37 percent whole
person impairment as it relates to his reflex sympathetic dystrophy of his left upper
limb, medial and lateral epicondylitis, and neuropathy left ulnar nerve.
{¶ 21} 8. The Ohio Bureau of Workers' Compensation appealed and the matter
was heard before a staff hearing officer ("SHO") on February 25, 2013. After noting that
the request for an award for loss of use of the right upper extremity remained dismissed,
the SHO vacated the prior DHO order which had granted relator a one-half loss of use
award, and found that he had not presented persuasive evidence to support a total loss
of use of his left upper extremity, stating:
Staff Hearing Officer denies the request for the scheduled
loss of use of the left upper extremity finding that the weight
of the evidence does not support the injured worker's
contention that, for all intents and purposes, he has
No. 16AP-250 11
sustained a permanent and total loss of use of his left upper
extremity as a result of the allowed conditions in this claim.
This order is made based on the 11/09/2012 report and
opinions of Dr. Mease and is based on the 06/27/2012 report
and opinions of Dr. Nemunaitis which were found to be more
persuasive with regard to this issue than the opinions
expressed by Dr. Hochman in his report dated 09/06/2012.
{¶ 22} 9. Relator's appeal was refused by order of the commission mailed
March 19, 2013.
{¶ 23} 10. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 24} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
{¶ 25} The Supreme Court of Ohio has set forth three requirements which must
be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal
right to the relief prayed for; (2) that respondent is under a clear legal duty to perform
the act requested; and (3) that relator has no plain and adequate remedy in the ordinary
course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St. 3d 28 (1983).
{¶ 26} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief
sought and that the commission has a clear legal duty to provide such relief. State ex
rel. Pressley v. Indus. Comm., 11 Ohio St. 2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St. 3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse
of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond
Foundry Co., 29 Ohio St. 3d 56 (1987). Furthermore, questions of credibility and the
weight to be given evidence are clearly within the discretion of the commission as fact
finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St. 2d 165 (1981).
{¶ 27} In order to qualify for a loss of use award, relator was required to present
medical evidence demonstrating that, for all intents and purposes, he had lost the use of
No. 16AP-250 12
his left upper extremity. State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio
St.3d 341, 2004-Ohio-3166.
{¶ 28} In Alcoa, at ¶ 10, the court set forth the historical development of
scheduled awards for loss of use under R.C. 4123.57(B) as follows:
Scheduled awards pursuant to R.C. 4123.57(B) compensate
for the "loss" of a body member and were originally confined
to amputations, with the obvious exceptions of hearing and
sight. In the 1970s, two cases—State ex rel. Gassmann v.
Indus. Comm. (1975), 41 Ohio St. 2d 64, 70 O.O.2d 157, 322
N.E.2d 660, and State ex rel. Walker v. Indus. Comm.
(1979), 58 Ohio St. 2d 402, 12 O.O.3d 347, 390 N.E.2d 1190—
construed "loss," as similarly used in R.C. 4123.58, to include
loss of use without severance. Gassmann and Walker both
involved paraplegics. In sustaining each of their scheduled
loss awards, we reasoned that "[f]or all practical purposes,
relator has lost his legs to the same effect and extent as if
they had been amputated or otherwise physically removed."
Gassmann, 41 Ohio St. 2d at 67, 70 O.O.2d 157, 322 N.E.2d
660; Walker, 58 Ohio St. 2d at 403-404, 12 O.O.3d 347, 390
N.E.2d 1190.
{¶ 29} In Alcoa, the claimant, Robert R. Cox, sustained a left arm amputation just
below his elbow. Due to continuing hypersensitivity at the amputation site, Cox was
prevented from ever wearing a prosthesis. Consequently, Cox filed a motion seeking a
scheduled loss of use award for the loss of use of his left arm.
{¶ 30} Through videotape evidence, Alcoa established that Cox could use his
remaining left arm to push open a car door and to tuck paper under his arm. In spite of
this evidence, the commission granted Cox an award for the loss of use of his left arm.
{¶ 31} Alcoa filed a mandamus action which this court denied. Alcoa appealed as
of right to the Supreme Court of Ohio.
{¶ 32} Affirming this court's judgment and upholding the commission's award,
the Supreme Court explained, at ¶ 10-15:
Alcoa urges the most literal interpretation of this rationale
and argues that because claimant's arm possesses some
residual utility, the standard has not been met. The court of
appeals, on the other hand, focused on the opening four
words, "for all practical purposes." Using this interpretation,
the court of appeals found that some evidence supported the
No. 16AP-250 13
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.
Pennsylvania defines "loss of use" much as the court of
appeals did in the present case, and the observations of its
judiciary assist us here. In that state, a scheduled loss award
requires the claimant to demonstrate either that the specific
bodily member was amputated or that the claimant suffered
the permanent loss of use of the injured bodily member for
all practical intents and purposes. Discussing that standard,
one court has written:
"Generally, the 'all practical intents and purpose' test
requires a more crippling injury than the 'industrial use' test
in order to bring the case under section 306(c), supra.
However, it is not necessary that the injured member of the
claimant be of absolutely no use in order for him to have lost
the use of it for all practical intents and purposes." Curran v.
Walter E. Knipe & Sons, Inc. (1958), 185 Pa.Super. 540, 547,
138 A.2d 251.
This approach is preferable to Alcoa's absolute equivalency
standard. Having so concluded, we further find that some
No. 16AP-250 14
evidence indeed supports the commission's decision. Again,
Dr. Perkins stated:
"It is my belief that given the claimant's residual hyper-
sensitivity, pain, and tenderness about his left distal forearm,
that he is unable to use his left upper limb at all and he
should be awarded for the loss of use of the entire left upper
limb given his symptoms. He has been given in the past loss
of use of the hand, but really he is unable to use a prosthesis
since he has had the amputation, so virtually he is without
the use of his left upper limb * * *."
{¶ 33} Relator challenges the commission's reliance on the report of Dr. Mease
arguing that Dr. Mease never indicated what he could do with his left upper extremity.
{¶ 34} Dr. Mease's physical findings indicated that relator had full range of
motion of his left shoulder and nearly full range of motion of his left elbow, and some
loss of both flexion and extension in his left wrist. Thereafter, Dr. Mease was asked to
identify and discuss her physical findings and she again indicated that relator had
normal range of motion of his left shoulder, mild limitation of his left elbow and left
wrist, and no atrophy of his upper extremity. Although relator informed Dr. Mease that
he only drives when he has to, that he watches tv, and her noting that his wife helped
him unbutton his shirt, Dr. Mease was not required to find that his self-reporting
constituted evidence that he was unable to use an arm which retained nearly complete
range of motion. This constitutes some evidence on which the commission could rely to
find that relator had not presented persuasive evidence that he had sustained a total loss
of use of his left upper extremity.
{¶ 35} Even if Dr. Mease's report was removed from evidentiary consideration,
the commission also relied on the report of Dr. Nemunaitis based on his evaluation,
which occurred one month before relator filed his request for a loss of use award. Dr.
Nemunaitis indicated that relator was independent in all of his activities of daily living
yet noted that he did demonstrate pain with dressing activities, especially on the left.
Dr. Nemunaitis found that relator had normal range of motion in his left shoulder, as
well as his left hand. Further, Dr. Nemunaitis found that relator's range of motion of his
left elbow was nearly normal and that his supination and pronation was essentially
normal. Dr. Nemunaitis did indicate that relator demonstrated pain with functional use
No. 16AP-250 15
of his left upper extremity, including mobility of the shoulder, wrist, and elbow;
however, relator was able to use his left upper extremity.
{¶ 36} Relator does not challenge the commission's reliance on the report of Dr.
Nemunaitis. As a result, even if this court were to find that the report of Dr. Mease did
not constitute some evidence on which the commission could properly rely to deny him
a total loss of use of his left upper extremity, the report of Dr. Nemunaitis does
constitute some evidence.
{¶ 37} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied his request for a
total loss of use award for his left upper extremity, and this court should deny relator's
request for a writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).