State ex rel. Group Mgt. Servs., Inc. v. Indus. Comm. ( 2023 )

[Cite as State ex rel. Group Mgt. Servs., Inc. v. Indus. Comm., 2023-Ohio-4555.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. :
Group Management Services, Inc.,
: No. 22AP-240
Relator,
: (REGULAR CALENDAR)
v.
:
Industrial Commission of Ohio et al.,
:
Respondents.
:
D E C I S I O N
Rendered on December 14, 2023
On brief: Ross, Brittain & Schonberg Co., L.P.A.,
Nicholas W. Lanphear, Emily Paisley, and Meredith L.
Ullman for Group Management Services, Inc.
On brief: Dave Yost, Attorney General, and Andrew J. Alatis
for Industrial Commission of Ohio.
On brief: Green Haines Sgambati Co., L.P.A, Shawn D.
Scharf, and Charles W. Oldfield for Kristopher D. Ford.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE’S DECISION
EDELSTEIN, J.
{¶ 1} Relator, Group Management Services, Inc. (“GMS”), commenced this
original action for a writ of mandamus to compel respondent, Industrial Commission of
Ohio (“commission”), to vacate its February 15, 2022 order granting compensation to
respondent, Kristopher D. Ford, for permanent partial disability resulting from the loss of
use of his left thumb and issue a new order denying his request for compensation.
No. 22AP-240 2
{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. Having examined the magistrate’s
decision, conducted an independent review of the record pursuant to Civ.R. 53, and
undertaken due consideration of respondents’ objections, we sustain the objections and
deny the requested writ of mandamus for the following reasons.
I. Background
{¶ 3} The magistrate’s decision provides a detailed description of the medical and
procedural history of the underlying claim, but we will briefly summarize the facts pertinent
to our discussion.
{¶ 4} While employed by GMS, Mr. Ford suffered an injury to his left thumb in an
August 3, 2019 workplace accident. (Apr. 18, 2022 Compl. at ¶ 3.) Following his injury,
Mr. Ford filed a claim for workers’ compensation benefits, which was recognized for the
following conditions: displaced fracture of proximal phalanx of left thumb, closed; post-
traumatic arthritis metacarpophalangeal joint left thumb; and instability
metacarpophalangeal joint left thumb. (Compl. at ¶ 4.) Mr. Ford subsequently underwent
a series of medical procedures, including surgery on August 30, 2019 performed by Dr.
Adrian Butler to repair the fracture of his left thumb and another surgery on November 13,
2020 to fuse his left metacarpophalangeal joint. Dr. Butler released Mr. Ford back to work
after a follow-up appointment on May 6, 2021. (July 20, 2023 Mag.’s Decision at ¶ 26.) A
May 12, 2021 report by physician assistant, Franchessca Catalano, described Mr. Ford’s
primary issues as pain and a loss of range of motion in his left thumb. (June 30, 2022
Stipulation of Evidence at 22-23.)
{¶ 5} Mr. Ford was then examined by Dr. Randall Hartwig to determine whether
he had lost the use of his left thumb. In his report issued May 30, 2021, Dr. Hartwig stated
the left thumb’s metacarpophalangeal joint indicated moderate restriction, but that the
interphalangeal joint “is totally fused and totally ankylosed, and is therefore deemed as a
one-half loss of use of the left thumb.” (Stipulation at 25.) Following this report, on June
15, 2021, Mr. Ford filed a motion asserting half loss of use of his left thumb due to ankylosis.
(Compl. at ¶ 5.)
No. 22AP-240 3
{¶ 6} In response, GMS obtained an independent medical examination from Dr.
Manhal Ghanma, who opined that Mr. Ford did not have ankylosis of the left
interphalangeal joint and therefore had not sustained a half loss of use of his thumb.
(Stipulation at 33-35.) Dr. Ghanma further stated that Dr. Hartwig’s May 30, 2021 report
erroneously noted the interphalangeal joint had been surgically fused when, in fact, it had
been the metacarpophalangeal joint. He opined that Dr. Hartwig’s report was unreliable
because it contained “false and inaccurate information regarding which left thumb joint
was fused.” (Stipulation at 35.)
{¶ 7} Dr. Hartwig subsequently issued an addendum to his initial medical report
on October 13, 2021, explaining the basis for his error and agreeing with Dr. Ghanma’s
assessment that the left metacarpophalangeal joint underwent the surgical fusion and
became ankylosed, not the interphalangeal joint. Due to the corrected information
regarding the fusion of the metacarpophalangeal joint and resulting ankylosis, Dr. Hartwig
revised his initial determination that Mr. Ford had suffered a one-half loss of use. In
accordance with the new information and “according to Memo 31 of the hearing officer,”
the doctor stated Mr. Ford had actually lost total use of his left thumb. (Stipulation at 36.)
{¶ 8} On November 18, 2021, Dr. Ghanma issued his own addendum following a
second examination and concluded that Mr. Ford had sustained only 12 percent left thumb
permanent impairment. (Stipulation at 41.)
{¶ 9} Having initially applied for workers’ compensation for partial loss of use of
his thumb, Mr. Ford amended his application to seek an award for the total loss of use of
his left thumb. Following a hearing, a District Hearing Officer (“DHO”) found that Mr. Ford
had proven the one-half loss of use of his thumb and should be awarded compensation.
(Stipulation at 83-84.) GMS appealed the award. On appeal, a Staff Hearing Officer
(“SHO”) reviewed the award and instead found that Mr. Ford had a total loss of use of his
left thumb due to ankylosis and modified the award for permanent partial disability in
1 As acknowledged by the parties, Dr. Hartwig’s mention of “Memo 3” in his report was a reference to the
Industrial Commission’s Adjudication Memo F3, Ankylosis of Finger Joints (hereinafter “Memo F3”).
(Dec. 22, 2022 Supp. Stipulation of Evidence at 7.) The memo states, “The injured worker is entitled to an
award for total loss of use of a finger when the hearing officer finds that the injured worker suffers ankylosis
of the proximal interphalangeal (PIP) joint of a finger. In other words, ankylosis of the joint below the
middle phalange is a loss of more than the middle and distal phalanges of the finger.”
No. 22AP-240 4
accordance with R.C. 4123.57(B). The SHO determined the ankylosis was the result of the
fusion of Mr. Ford’s left metacarpophalangeal joint and cited Dr. Hartwig’s October 13,
2021 addendum report in support of its decision, as well as “all evidence and testimony
presented at the hearing” and the legal standard set forth in State ex rel. Rodriguez v.
Indus. Comm., 10th Dist. No. 08AP-910, 2009-Ohio-4834. (Stipulation at 85.) After GMS
exhausted its avenues for administrative relief, this mandamus action followed.
{¶ 10} On July 20, 2023, the assigned magistrate issued a decision concluding the
commission abused its discretion in relying wholly on Dr. Hartwig’s October 13, 2021
medical report as the basis for the award. Specifically, the magistrate found the report
failed to apply the appropriate legal standard set forth in Rodriguez for examining a claim
for loss of use of a thumb due to ankylosis. (Mag.’s Decision at ¶ 50. ) The magistrate was
persuaded by GMS’s argument that Dr. Hartwig improperly drew his opinion from the loss-
of-use standard in Memo F3 for fingers other than the thumb, which requires a finding of
total loss of use if there is ankylosis of the proximal interphalangeal (PIP) joint of the finger.
(Mag.’s Decision at ¶ 44.) The magistrate also determined that physician assistant
Catalano’s report did not “address the correct legal standard in answering the question of
whether Ford has lost more than half the use of his thumb” and thus could not constitute
medical evidence supporting the commission’s analysis. (Mag.’s Decision at ¶ 51.) Citing
State ex rel. Woodhull v. Indus. Comm., 10th Dist. No. 10AP-821, 2011-Ohio-4921, the
magistrate concluded that a medical report that relies on an incorrect legal standard may
not serve as “some evidence” in support of the commission’s determination. (Mag.’s
Decision at ¶ 50.) Because Dr. Hartwig’s report cited the wrong legal standard and the
commission did not rely on any other acceptable medical evidence in support of its decision,
the magistrate concluded that the commission abused its discretion in granting the
application and recommended we grant the writ and remand the case for further
consideration. (Mag.’s Decision at ¶ 53.)
{¶ 11} The commission and Mr. Ford timely filed objections to the magistrate’s
decision. In general, the objections challenge the magistrate’s determination that no
medical evidence supported the commission’s award for the loss of use of Mr. Ford’s left
thumb. Mr. Ford and the commission both object to the magistrate’s characterization of
No. 22AP-240 5
Dr. Hartwig’s report and assert the magistrate misapplied Rodriguez and Woodhull to
conclude the report must be excluded from the commission’s consideration. We agree.
II. Law and Analysis
{¶ 12} To be entitled to a writ of mandamus, GMS must demonstrate a clear legal
right to the relief sought, that the commission has a clear legal duty to provide such relief,
and that there is no adequate remedy in the ordinary course of the law. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141, 162-63 (1967). In the context of workers’
compensation applications, a writ of mandamus is appropriate if the commission abused
its discretion by entering an order unsupported by any evidence. State ex rel. Kidd v. Indus.
Comm., 10th Dist. No. 20AP-364, 2022-Ohio-450, ¶ 3, citing State ex rel. Elliott v. Indus.
Comm., 26 Ohio St.3d 76 (1986). This court will not find an abuse of discretion when there
is some evidence in the record to support the commission’s finding. State ex rel. Rouch v.
Eagle Tool & Machine Co., 26 Ohio St.3d 197, 198 (1986). Furthermore, the commission is
the finder of fact. State ex rel. Honda of Am. Mfg. Co., Inc. v. Indus. Comm., 10th Dist. No.
14AP-82, 2014-Ohio-5245, ¶ 10. If some evidence exists in the record, this court may not
“second-guess the commission’s evaluation of the evidence.” State ex rel. Black v. Indus.
Comm., 137 Ohio St.3d 75, 2013-Ohio-4550, ¶ 22.
{¶ 13} Because they are dispositive of this appeal, we first address the commission’s
first and second objections and Mr. Ford’s first objection together. In their objections,
respondents argue the magistrate erred in discounting Dr. Hartwig’s addendum report as
medical evidence because Dr. Hartwig’s reference to Memo F3 indicates he applied the
wrong legal standard to his consideration of Mr. Ford’s loss of use of his thumb.
{¶ 14} The permanent and total loss of use of a listed body part justifies a scheduled
loss award under R.C. 4123.57(B), Ohio’s partial disability compensation statute. The law
sets forth the applicable compensation schedule and, to some degree, the parameters for
how loss of use is measured. As relevant here, “R.C. 4123.58(B) requires compensation
when a claimant has lost the use of his thumb, and provides that the loss of more than one-
half of the thumb is equal to the loss of the whole thumb.” Rodriguez at ¶ 3. In reviewing
claims for total loss of use of the thumb, this court has held that the commission must find
the claimant has proven (1) the presence of ankylosis has rendered the thumb, or part of
the thumb, useless and (2) the loss of use of more than half of the thumb. Id. at ¶ 6. In
No. 22AP-240 6
Rodriguez, this court concluded that “[w]hile the SHO determined that the thumb was not
entirely useless, the SHO did not expressly find that claimant had lost more than half of its
use,” and thus vacated the award for full loss of use and remanded the matter to the
commission. Id. at ¶ 6-7. In contrast to the two-part test for diagnosing loss of use of the
thumb, total loss of use in the finger only requires a finding that there is ankylosis of the
proximal interphalangeal (PIP) joint. The Supreme Court has previously addressed this
distinction and noted that “evaluating [the thumb] under standards directed at the fingers
just doesn’t work.” State ex rel. Riter v. Indus. Comm., 91 Ohio St.3d 89, 93 (2001).
Finding that the thumb has significantly different mechanical and structural properties
than the other fingers, the court reasoned that the standard now contained in Memo F3
cannot be applied to thumbs. “The key to the thumb’s uniqueness and utility lies in the
metacarpal bone and metacarpocarpal joint. Thus, to say that ankylosis of the
[interphalangeal] joint makes the thumb totally useless is wrong.” Id. No party disputes
that the standard set forth in Memo F3 is inapplicable to the present matter.
{¶ 15} In Woodhull, a claimant appealed the denial of her compensation application
for the total loss of use of her thumb, claiming, in part, the denial was based on the medical
opinion of a doctor who applied the wrong legal standard to his review of her injury. In his
report, the doctor provided an opinion on the total and permanent loss of use of the
claimant’s thumb. Woodhull, 2011-Ohio-4921 at ¶ 6. Citing the standard for loss of use set
forth in Rodriguez, the claimant argued the doctor could have come to a different
conclusion had he applied the correct legal test to consider whether her loss of use was
greater than half, rather than total. Id. at ¶ 6. That, in addition to evidence of ankylosis,
could have sufficed to prove she suffered a total loss of use of her thumb as defined under
R.C. 4123.58(B). Relying on State ex rel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, 2011-
Ohio-530, we held:
To us, the key principle applicable here is the court’s remedy
in Kroger. Once the court determined that Dr. Funk had used
an incorrect legal standard, the court did not eliminate that
report as evidence. Rather, the court (1) acknowledged that
Dr. Funk might have reached a different conclusion if he had
applied the correct standard, (2) granted a writ, and (3)
returned the matter to the commission for further
consideration. We apply that remedy here. Because Dr.
No. 22AP-240 7
George might have reached a different conclusion if he had
realized that the loss need only be greater than 50 percent,
and not a total loss, we return the matter to the commission
for further consideration.
Id. at ¶ 10. We further noted in Woodhull that while the DHO and SHO decisions
articulated the correct legal standard, “the SHO did not note Dr. George’s use of an incorrect
legal standard, nor did the SHO expressly conclude that Dr. George’s findings support the
conclusion that relator has less than a 50-percent loss.” Id. at ¶ 11.
{¶ 16} The magistrate’s decision in this case takes the wrong lesson from Woodhull.
The magistrate relies on Woodhull in concluding that “the report relied upon by the SHO
was based on an incorrect legal standard and, therefore, does not constitute some evidence
upon which the SHO could rely in reaching its conclusion[.]” (Mag.’s Decision at ¶ 50.)
Furthermore, because the report failed to apply the correct legal standard and expressly
address whether Mr. Ford has lost more than half of the use of his thumb, the magistrate
contends the commission could not rely on it at all as some evidence supporting the award.
(Id.)
{¶ 17} We disagree with the magistrate’s application of Woodhall and Kroger. Both
cases stand for the proposition that if the conclusion reached by an expert was affected, or
potentially affected, by the misapplication of the law, the appropriate remedy is a remand
to the commission. We specifically noted in Woodhull that “[o]nce the court [in Kroger]
determined that Dr. Funk had used an incorrect legal standard, the court did not eliminate
that report as evidence” but returned the matter to the commission. (Emphasis added.) Id.
at ¶ 10. In both cases, doctors assessed the relevant injury against a higher standard than
was required. Id. at ¶ 15.
{¶ 18} This is not the case in the present matter. Here, Rodriguez instructs the
commission to define total loss of the thumb as any loss greater than half. Dr. Hartwig
opined that Mr. Ford has “a total loss of use of the left thumb.” (Stipulation at 37.) This
case does not implicate the same concerns as Kroger and Woodhull, as the ultimate opinion
expressed by Dr. Hartwig was in no way affected by the invocation of the wrong legal
standard. A complete loss plainly means a loss greater than half. This is buoyed by Dr.
Hartwig’s amended report, which elevated his finding from loss of half to full loss of use of
No. 22AP-240 8
the left thumb. Dr. Hartwig did not reduce his assessment, but increased it. This overly
technical interpretation of Woodhull would remand the matter so Dr. Hartwig could offer
the same opinion in different language. The logic underlying the remand orders in both
Kroger and Woodhull is the possibility that the medical expert could have reached a
different conclusion under a different standard. Here, where there is no such risk, we do
not need additional clarification before the report can be considered as evidence.
{¶ 19} GMS contends that the reference to Memo F3 implies Dr. Hartwig’s
conclusions were drawn from the belief that an ankylosed interphalangeal joint mandates
a finding of total loss, and therefore his conclusions are attributable to the wrong legal
standard. This is not so. Instead, we agree with the respondents’ contentions that Dr.
Hartwig’s report complied with Rodriguez and was appropriate medical evidence for the
commission to consider. In his amended report, Dr. Hartwig found (1) the presence of
ankylosis of the metacarpophalangeal joint by fusion and (2) a total loss of use of the left
thumb. Had Dr. Hartwig relied on Memo F3, he would have based his loss of use conclusion
on a finding of ankylosis of the interphalangeal joint, which he did not. As such, we are
similarly unpersuaded that Dr. Hartwig’s opinion was affected by the application of the
wrong legal standard.
{¶ 20} Finally, we return to the standard itself. The two-part test set forth in
Rodriguez requires the commission, “where ankylosis is proven, to determine whether a
claimant has lost more than half the use of a thumb, not just whether a thumb is ‘useless,’
in order to determine whether a total loss has occurred.” Rodriguez at ¶ 6. The SHO’s
February 15, 2022 order concluded that the metacarpophalangeal joint was fused during
the November 13, 2020 surgery “resulting in total stiffness at said joint,” causing Mr. Ford
“to lose more than half the use of his left thumb.” (Stipulation at 85.) Each of the findings
required by Rodriguez was made by the commission and supported by some evidence in
the record.
{¶ 21} Because Dr. Hartwig’s report constitutes some evidence in the record, the
February 15, 2022 order was supported by some evidence and therefore the commission
did not abuse its discretion in granting the award for permanent partial disability.
No. 22AP-240 9
III. Disposition
{¶ 22} Following our independent review of the record pursuant to Civ.R. 53, we find
the magistrate erred in concluding GMS is entitled to the requested writ of mandamus. We
agree with the magistrate’s recitation of the facts. However, we disagree with the
magistrate’s conclusions of law. Accordingly, we adopt the magistrate’s findings of fact, but
not the conclusions of law. We therefore sustain the objections to the magistrate’s decision
and deny GMS’s request for a writ of mandamus.
Objections sustained;
writ of mandamus denied.
MENTEL and JAMISON, JJ., concur.
No. 22AP-240 10
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. :
Group Management Services, Inc.,
:
Relator,
:
v. No. 22AP-240
:
Industrial Commission of Ohio et al., (REGULAR CALENDAR)
:
Respondents.
:
MAGISTRATE’S DECISION
Rendered on July 20, 2023
Ross, Brittain & Schonberg Co., Nicholas W. Lanphear, Emily
Paisley, and Meredith L. Ullman, for relator.
Dave Yost, Attorney General, and Andrew J. Alatis, for
respondent Industrial Commission of Ohio.
Green Haines Sgambati Co., L.P.A., Shawn D. Scharf, and
Charles W. Oldfield, for respondent Kristopher D. Ford.
IN MANDAMUS
{¶ 23} Relator, Group Management Services, Inc. (“GMS”), seeks a writ of
mandamus ordering respondent Industrial Commission of Ohio (“commission”) to deny
the application of respondent Kristopher D. Ford for total loss of use of his left thumb, or,
in the alternative, to grant reconsideration to hear and consider GMS’s arguments.
I. Findings of Fact
No. 22AP-240 11
{¶ 24} 1. On August 3, 2019, Ford sustained an injury to his thumb in a motor
vehicle accident in the course of and arising out of his employment with GMS. Ford was
initially diagnosed with a closed displaced fracture of phalanx of left thumb, unspecified
phalanx, initial encounter. (Stip. at 1, 10.)
{¶ 25} 2. Ford’s workers’ compensation claim was allowed for the following
conditions: “displaced fracture of proximal phalanx of left thumb, closed; post-traumatic
arthritis metacarpophalangeal joint left thumb; instability metacarpophalangeal joint left
thumb.” (Stip. at 81.)
{¶ 26} 3. On August 30, 2019, Adrian Butler, M.D., performed surgery on Ford to
repair the fracture of his left thumb. (Stip. at 2.) On November 13, 2020, Dr. Butler
performed another surgical procedure on Ford to fuse his left thumb
metacarpophalangeal joint (“MCP joint”). (Stip. at 5.) At a follow-up appointment on
Ford’s surgical procedure on May 6, 2021, Dr. Butler noted Ford’s report of occasional
pain and clicking in his left thumb and released Ford back to work without restrictions.
(Stip. at 17-19.)
{¶ 27} 4. In a report dated May 12, 2021, Franchessca L. Catalano, PA-C, noted that
Ford’s “primary problem is pain, a loss of range of motion located in the [left thumb].”
(Stip. at 22.)
{¶ 28} 5. Ford was examined on May 28, 2021 by Randall J. Hartwig, D.O., for the
purpose of determining loss of use of Ford’s left thumb. (Stip. at 24-26.) In a report dated
May 30, 2021, Dr. Hartwig noted Ford’s allowed conditions and stated that he reviewed
Dr. Butler’s November 13, 2020 operative report. In his examination, Dr. Hartwig stated
with regard to the MCP joint the following:
Further examination of the left thumb area demonstrated at
the metacarpal phalangeal joint he did achieve extension
within a normal limits range. The flexion at the metacarpal
phalangeal joint was restricted at approximately 45 degrees;
however, this did demonstrate fair motion to flexion of the
metacarpal phalangeal joint. Therefore, this examiner cannot
indicate that this joint itself is a loss of use secondary to any
type of ankylosis.
(Stip. at 25.) Dr. Hartwig stated the following with regard to the interphalangeal joint (“IP
joint”) of Ford’s left thumb:
No. 22AP-240 12
Examination of the distal phalanx of the left thumb
demonstrated the left thumb to be ankylosed and it is fused at
a 10-degree flexed position. He had the inability to perform
any extension past this 10-degree flexed position, and the
inability to perform any flexion past the 10-degree fixed flexed
position. Therefore, this left thumb at the interphalangeal
joint is totally fused and totally ankylosed, and is therefore
deemed as a one-half loss of use of the left thumb according
to the AMA guidelines.
(Stip. at 25.) Based on his finding that the IP joint was “totally ankylosed secondary to
fusion with no motion at all,” Dr. Hartwig opined that Ford “has incurred a one-half loss
of use of the left thumb as a direct result of the above listed industrial injury.” (Stip. at
25.)
{¶ 29} 6. On June 15, 2021, Ford filed a C-86 motion requesting one-half loss of
use of left thumb due to ankylosis pursuant to R.C. 4123.57(B). (Stip. at 80.)
{¶ 30} 7. Dr. Butler again examined Ford on June 17, 2021 to follow-up from his
prior surgical procedure. Ford reported to Dr. Butler that he experienced “occasional pain
at night at the joint below his fusion.” (Stip. at 27.) Dr. Butler noted Ford had a “stable
fusion mass” and had “some mild tenderness palpation of his radial and ulnar joint lines
of the MCP joint but stable to stress examination.” (Stip. at 29.) Dr. Butler found that Ford
was at maximum medical improvement as of the date of that examination. (Stip. at 29.)
{¶ 31} 8. On August 26, 2021, Manhal A. Ghanma, M.D., performed an
independent medical examination of Ford and produced a report on the same date. In the
report, Dr. Ghanma opined that Ford had movement of his IP joint of his left thumb and
did not have any ankylosis of the IP joint. As a result, Dr. Ghanma stated that Ford had
not sustained a half loss of use of his thumb due to ankylosis of the IP joint as a direct and
proximate result of the work-related incident on August 3, 2019 and the associated
allowed conditions. Dr. Ghanma stated that “Dr. Hartwig’s report is completely
inaccurate in that he is alleging that the thumb is ankylosed at the IP joint whereas the
metacarpophalangeal fusion was performed at the MCP joint of the left thumb and not
the IP joint. Accordingly, his report is not reliable because it contains false and inaccurate
information regarding which left thumb joint was fused.” (Stip. at 35.)
No. 22AP-240 13
{¶ 32} 9. On October 13, 2021, Dr. Hartwig completed an addendum to his May 30,
2021 report. Noting that he reviewed Dr. Ghanma’s report, Dr. Hartwig stated the
following:
[W]hen I dictated this report I was arrant [sic] in indicating
that the interphalangeal joint was fused. I did not find any
motion in this joint and therefore is why I should have just
indicated there was no motion, or it appeared to be ankylosed,
and I should not have said “fused.” That was my error.
Also, at the metacarpal phalangeal joint it was my error in
judgement indicating that there was motion at this joint;
however, the motion that I perceived must have been from the
metacarpal-carpal junction, causing the thumb to go back and
forth.
Therefore, I do agree with Dr. Ghanma that the client did have
a total fusion of the metacarpalphalangeal joint. Therefore,
according to Memo 3 of the hearing officer, if this joint is
ankylosed then it would actually render the entire distal
portion of the thumb of any purposeful or functional use as
well.
(Stip. at 36.) Having reviewed Dr. Ghanma’s report, Dr. Hartwig stated that “taking into
consideration the new documentation, this would indicate that Mr. Ford does have an
ankylosis of the metacarpal phalangeal joint by fusion, and therefore this would render
the distal portions of this thumb to be deemed loss of use as well.” (Stip. at 37.)
Accordingly, Dr. Hartwig stated that “[b]ased on the history, as well as the new medical
documentation reviewed, it is my opinion that Mr. Kristopher Ford has a total loss of use
of the left thumb as a result of the above listed industrial injury.” (Stip. at 37.)
{¶ 33} 10. In an order mailed on October 23, 2021, a commission district hearing
officer (“DHO”) stated that the October 21, 2021 hearing was continued because Ford’s
representative clarified at the hearing that Ford was requesting total loss of use for the
left thumb rather than one-half loss of use.
{¶ 34} 11. On November 18, 2021, Dr. Ghanma performed a second independent
medical examination of Ford and produced a report on the same date. In response to the
question “[d]id the claimant sustain ankylosis of his left thumb metacarpophalangeal
joint,” Dr. Ghanma stated, “Yes, Mr. Ford underwent a fusion of his left thumb
metacarpophalangeal joint on the surgery date of November 13, 2020.” (Stip. at 40.)
No. 22AP-240 14
Dr. Ghanma opined that Ford had a 12 percent left thumb permanent impairment, and as
a result had not sustained more than one-half loss of use of his thumb. (Stip. at 40-41.)
{¶ 35} 12. On December 10, 2021, a DHO heard the issue of Ford’s June 15, 2021
C-86 motion. In an order mailed December 14, 2021, the DHO granted the C-86 motion
based on the DHO’s finding that Ford met his burden of proving the ankylosis of his first
finger was at the thumb IP joint resulting in a one-half loss of use of the left thumb. The
DHO based this finding on the November 13, 2020 operative report of Dr. Butler, the
May 28, 2021 report by Dr. Hartwig, and the October 13, 2021 addendum by Dr. Hartwig.
The DHO ordered Ford to be granted payment for one-half loss of use of the left first
finger by ankylosis.
{¶ 36} 13. GMS’s appeal from the DHO’s December 10, 2021 order was heard
before a commission staff hearing officer (“SHO”) on February 10, 2022. In an order
mailed February 15, 2022, the SHO modified the DHO’s order, granting Ford’s June 15,
2021 C-86 motion to the extent specified in the order. The SHO found Ford had a total
loss of use of the left thumb due to ankylosis. Further, the SHO found Ford’s MCP joint
was fused on November 13, 2020 resulting in total stiffness at said joint, and thereby
causing Ford to lose more than half the use of his left thumb. The SHO based this finding
on Dr. Hartwig’s October 13, 2021 addendum, State ex rel. Rodriguez v. Indus. Comm.,
10th Dist. No. 08AP-910, 2009-Ohio-4834, and a “visual inspection of [Ford’s] left hand
and thumb, as well as all evidence and testimony presented at the hearing.” (Stip. at 85.)
The SHO ordered that Ford be granted compensation for permanent partial disability for
total loss of use of the left thumb pursuant to R.C. 4123.57(B).
{¶ 37} 14. GMS appealed the SHO’s order to the commission, which refused the
appeal in an order mailed March 8, 2022. (Stip. at 87.)
{¶ 38} 15. GMS filed a complaint in mandamus in the instant case on April 18,
2022.
II. Discussion and Conclusions of Law
{¶ 39} GMS seeks a writ of mandamus ordering the commission to deny Ford’s
request for total loss of use of his left thumb or, in the alternative, a limited writ of
mandamus ordering the commission to grant reconsideration.
No. 22AP-240 15
A. Requirements for Mandamus
{¶ 40} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, a relator must establish a clear legal right to the
requested relief, that the commission has a clear legal duty to provide such relief, and the
lack of an adequate remedy in the ordinary course of the law. State ex rel. Belle Tire
Distribs. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122; State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). Where the commission’s
determination is supported by some evidence, it has not abused its discretion and this
court must uphold the decision. State ex rel. Seibert v. Richard Cyr, Inc., 157 Ohio St.3d
266, 2019-Ohio-3341, ¶ 44, citing State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d
373, 376 (1996).
{¶ 41} The commission is “exclusively responsible for assessing the weight and
credibility of evidence.” State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-
Ohio-6036, ¶ 11, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987).
Where the commission’s decision is supported by some evidence, the presence of contrary
evidence in the record is immaterial. State ex rel. West. v. Indus. Comm., 74 Ohio St.3d
354, 356 (1996), citing Burley. However, the commission cannot rely on a medical
opinion that is equivocal or internally inconsistent. George at ¶ 11. See State ex rel.
Lopez v. Indus. Comm., 69 Ohio St.3d 445, 449 (1994).
B. Loss of Use Claims Under R.C. 4123.57(B)
{¶ 42} “R.C. 4123.57(B) provides for scheduled-loss compensation that is paid to
an injured worker for the loss of a body part as listed in the schedule.” State ex rel.
Coleman v. Indus. Comm. of Ohio, 136 Ohio St.3d 77, 2013-Ohio-2406, ¶ 16. In pertinent
part, R.C. 4123.57(B) provides:
In cases included in the following schedule the compensation
payable per week to the employee is the statewide average
weekly wage * * * and shall be paid in installments according
to the following schedule:
For the loss of a first finger, commonly known as a thumb,
sixty weeks.
***
No. 22AP-240 16
The loss of a second, or distal, phalange of the thumb is
considered equal to the loss of one half of such thumb; the loss
of more than one half of such thumb is considered equal to the
loss of the whole thumb.
The loss of the third, or distal, phalange of any finger is
considered equal to the loss of one-third of the finger.
The loss of the middle, or second, phalange of any finger is
considered equal to the loss of two-thirds of the finger.
The loss of more than the middle and distal phalanges of any
finger is considered equal to the loss of the whole finger. In no
case shall the amount received for more than one finger
exceed the amount provided in this schedule for the loss of a
hand.
***
For ankylosis (total stiffness of) or contractures (due to scars
or injuries) which makes any of the fingers, thumbs, or parts
of either useless, the same number of weeks apply to the
members or parts thereof as given for the loss thereof.
R.C. 4123.57(B). Thus, the statute “specifies, to some degree, how loss is measured, based
on the anatomy of the affected member.” State ex rel. Riter v. Indus. Comm., 91 Ohio
St.3d 89, 90 (2001). “The claimant bears the burden of proving entitlement to
compensation.” State ex rel. Koepf v. Indus. Comm., 10th Dist. No. 18AP-753, 2019-Ohio-
3789, ¶ 6, citing State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 81 Ohio St.3d 56,
57 (1998).
{¶ 43} The Supreme Court of Ohio has recognized that a claimant “may qualify for
a total loss of use even when the body part retains some residual function.” State ex rel.
Varney v. Indus. Comm. of Ohio, 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. In order
to qualify for loss of use compensation pursuant to R.C. 4123.57(B), “ ‘a claimant must
demonstrate with medical evidence a total loss of use of the body part at issue for all
practical purposes.’ ” Koepf at ¶ 6, quoting Varney at ¶ 16, citing Alcoa Bldg. Prods.
Furthermore, the claimant must demonstrate the loss of use is permanent and that a
causal relationship exists between the allowed occupational injury and the alleged loss of
use. Id. at ¶ 7.
C. Application
No. 22AP-240 17
{¶ 44} GMS argues the commission erred in awarding loss of use compensation
pursuant to R.C. 4123.57(B) because the only medical evidence upon which the SHO
specifically relied, namely the October 13, 2021 addendum report of Dr. Hartwig, was
based on an incorrect legal standard for evaluating loss of use of a thumb. GMS argues
Dr. Hartwig improperly based his conclusion on Industrial Commission Adjudication
Memo F3 (“Memo F3”), which applies only to claims for loss of use of a finger, not a
thumb.
{¶ 45} Memo F3, which is captioned “Ankylosis of Finger Joints,” provides as
follows: “The injured worker is entitled to an award for total loss of use of a finger when
the hearing officer finds that the injured worker suffers ankylosis of the proximal
interphalangeal (“PIP”) joint of a finger. In other words, ankylosis of the joint below the
middle phalange is a loss of more than the middle and distal phalanges of the finger.”
(Supp. Stip. at 105.) The memo contains a note referring to R.C. 4123.57 and citing to
State ex rel. Glower v. Indus. Comm., 10th Dist. No. 86AP-1026, 1988 WL 92441 (Sept. 1,
1988).2 (Supp. Stip. at 105.)
{¶ 46} In Riter, the Supreme Court of Ohio considered the different requirements
for demonstrating loss of use under R.C. 4123.57(B) between fingers and the thumb.
Specifically, the court considered whether the claimant’s lack of range of motion in the IP
joint of the thumb due to ankylosis entitled the claimant to compensation for loss of the
whole thumb. In arguing for entitlement to compensation, the claimant specifically
pointed to a memorandum from the commission which awarded compensation for a full
finger loss when the PIP joint of the finger was ankylosed and argued that consistency
demanded the same award when the thumb’s IP joint was ankylosed.
{¶ 47} In analyzing the question presented, the court in Riter extensively examined
the “special properties” of the thumb, noting that “[t]he thumb is the key to grasping and
gripping.” Id. at 92. The court stated that “[t]he thumb’s special properties derive from
two sources: (1) the metacarpal bone, which proceeds from the metacarpophalangeal joint
2 In Glower, the court considered whether the commission abused its discretion when it concluded that the
claimant’s ankylosis of the PIP joints in the middle, ring, and little fingers of her left hand did not constitute
a loss of more than the middle and distal phalanges of those fingers. Glower did not consider loss of use of
the thumb due to ankylosis.
No. 22AP-240 18
at the thumb’s base, down towards the wrist, and (2) the metacarpocarpal joint at the base
of the hand near the wrist.” Id. Based on the special properties of the thumb, the court
found that “the thumb is truly unique” and, therefore, “evaluating it under standards
directed at the fingers just doesn’t work.” (Emphasis added.) Id. at 93. Because the
“thumb’s uniqueness and utility lies in the metacarpal bone and metacarpocarpal joint,”
the court found that “to say that ankylosis of the IP joint makes the thumb totally useless
is wrong.” Id. As a result, the court concluded the claimant was not entitled to
compensation under R.C. 4123.57(B) for loss of use of the whole thumb. The court also
found it was not a violation of equal protection to deny total loss of use for the thumb’s IP
joint while awarding it for the PIP joint in the fingers because the injuries “are different
and have different effects on digit use and disability.” Id.
{¶ 48} This court has previously considered the correct standard for examining a
claim for loss of use of a thumb due to ankylosis under R.C. 4123.57(B) in Rodriguez. In
that case, the commission did not make a finding regarding whether ankylosis rendered
more than one-half of the thumb useless. Instead, the commission found that, while the
claimant had shown ankylosis, the claimant had not met the requirement of uselessness
of the finger based on a medical report in which the doctor opined that the claimant had
some range of motion in the thumb and the thumb was not useless. The court found the
commission did not apply the correct standard under R.C. 4123.57(B) where ankylosis
was proven, stating:
The statute provides that the loss of more than one-half of a
thumb is equal to the loss of the whole thumb, and it requires
payment where ankylosis renders a thumb, or any part of the
thumb, useless. Together, these provisions require the
commission, where ankylosis is proven, to determine whether
a claimant has lost more than half the use of a thumb, not just
whether a thumb is “useless,” in order to determine whether
a total loss has occurred.
Rodriguez, 2009-Ohio-4834, at ¶ 6. Because the commission did not expressly find that
the claimant had lost more than half the use of the thumb, the court granted a writ of
mandamus ordering the commission to vacate its order denying scheduled-loss
compensation and to reevaluate the application in accordance with the correct standard.
No. 22AP-240 19
{¶ 49} In State ex rel. Woodhull v. Indus. Comm., 10th Dist. No. 10AP-821, 2011-
Ohio-4921, this court reviewed a commission order denying a claimant’s motion for loss
of use of the whole thumb under R.C. 4123.57(B). In denying the claimant’s motion, the
commission relied on a doctor’s report which applied an incorrect legal standard. The
court noted that the commission articulated the correct legal standard in its decision, but
did not recognize the doctor’s use of an incorrect legal standard. The commission argued
before this court that there was additional evidence in the record to support its decision,
noting a second doctor’s report showing that the claimant’s thumb was fully ankylosed at
that time. The court found, however, that “[a]nkylosis alone is not determinative,”
pointing out that the second report “does not discuss whether [the claimant] has suffered
a greater-than-fifty-percent loss of her thumb.” Id. at ¶ 7. Applying the decision of the
Supreme Court of Ohio in State ex rel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, 2011-
Ohio-530, the court found that because the doctor who applied the incorrect standard
“might have reached a different conclusion if he had realized that the loss need only be
greater than 50 percent, and not a total loss,” the court granted a writ of mandamus
returning the matter to the commission for further consideration. Woodhull at ¶ 10.
{¶ 50} This case bears marked similarities to Woodhull. Here, the commission,
through its SHO, specifically relied on a single medical report, the October 13, 2021
addendum report of Dr. Hartwig, in support of its conclusion that Ford was entitled to an
award of compensation for total loss of use of the left thumb pursuant to R.C. 4123.57(B).
Akin to the claimant’s position in Riter, Dr. Hartwig relied on a commission
memorandum pertaining to fingers in reaching his conclusion regarding loss of use of the
thumb. Specifically, Dr. Hartwig stated in his report: “I do agree with Dr. Ghanma that
the client did have a total fusion of the metacarpalphalangeal joint. Therefore, according
to Memo 3 of the hearing officer, if this joint is ankylosed then it would actually render
the entire distal portion of the thumb of any purposeful or functional use as well.”
(Emphasis added.) (Stip. at 36.) No party disputes that Dr. Hartwig was referring to
Memo F3 in stating “Memo 3 of the hearing officer” or that Memo F3 pertains only to
claims for loss of use of a finger, not the thumb. Most importantly, Dr. Hartwig did not
properly address the question of “whether, where ankylosis is proven, ‘a claimant has lost
more than half the use of a thumb.’ ” Woodhull at ¶ 6, quoting Rodriguez at ¶ 6. Thus, as
No. 22AP-240 20
in Woodhull, the report relied upon by the SHO was based on an incorrect legal standard
and, therefore, does not constitute some evidence upon which the SHO could rely in
reaching its conclusion that Ford demonstrated a total loss of use of the left thumb due to
ankylosis under R.C. 4123.57(B).
{¶ 51} The commission argues that in the “report of PA-C Catalano dated May 12,
2021, she clearly stated that Ford’s primary problem is pain and loss of range of motion
in the left thumb” and that “Ford’s loss of range of motion in the left thumb constitutes
sufficient evidence to support that there is an absence of movement.” (Comm. Brief at 10.)
This, however, does not address the correct legal standard in answering the question of
whether Ford has lost more than half the use of his thumb. See Woodhull at ¶ 7. Nor does
the commission specifically point to other evidence in the record applying the correct legal
standard in support of its determination.
{¶ 52} In addition to Dr. Hartwig’s October 13, 2021 addendum report, the SHO
also cited to Rodriguez and a “visual inspection of [Ford’s] left hand and thumb, as well
as all evidence and testimony presented at the hearing.” (Stip. at 85.) While Rodriguez
provides the correct standard to apply when considering a claim for loss of use of a thumb
due to ankylosis, this citation does not constitute some evidence to support the loss of use
determination. As in Woodhull, the SHO, despite referring to the correct legal standard,
did not recognize that Dr. Hartwig applied the incorrect legal standard. Furthermore, no
party contends that a hearing officer’s visual observation of a medical condition at a
hearing constitutes some evidence upon which the commission could rely in reaching its
determination regarding loss of use. Indeed, as previously noted, a claimant must
demonstrate the loss of use using medical evidence in order to qualify for compensation
under R.C. 4123.57(B). Koepf at ¶ 6. See generally State ex rel. Fries v. Admr., Bur. of
Workers’ Comp., 10th Dist. No. 01AP-721, 2002-Ohio-3252, ¶ 13 (stating that “[w]hile the
commission may properly choose between competing or conflicting medical views, it may
not create a period of disability out of whole cloth”); Yellow Freight, 81 Ohio St.3d at 58
(stating that “[w]ithout medical evidence, the commission has no basis to determine the
cause of a medical condition -- it simply does not have the expertise”).
{¶ 53} There is nothing in the record, including the SHO’s order, reflecting that
any additional medical evidence was provided at the hearing and relied on by the SHO to
No. 22AP-240 21
support the loss of use determination. Rather, the only medical evidence specifically
relied upon by the SHO was the October 13, 2021 report of Dr. Hartwig. Having found
that this report does not constitute some evidence on which the commission could rely,
the magistrate concludes the SHO’s order was not supported by the medical evidence
required to award loss of use compensation under R.C. 4123.57(B). In the absence of some
evidence, the commission abused its discretion in making such an award.
{¶ 54} Therefore, based on the foregoing, GMS has demonstrated a clear legal right
to the requested relief, that the commission is under a clear legal duty to provide such
relief, and the absence of an adequate remedy in the ordinary course of the law. Consistent
with Woodhull, a writ of mandamus remanding the matter to the commission for further
consideration is appropriate.
D. Conclusion
{¶ 55} Accordingly, it is the decision and recommendation of the magistrate that a
writ of mandamus should be granted vacating the commission’s February 15, 2022 order
awarding compensation for loss of use under R.C. 4123.57 and remanding the matter to
the commission for further consideration.
/S/ MAGISTRATE
JOSEPH E. WENGER IV
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). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.