State ex rel. Heilman v. Indus. Comm. ( 2023 )

[Cite as State ex rel. Heilman v. Indus. Comm., 2023-Ohio-3073.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Patricia A. Heilman, :
Relator, :
No. 21AP-353
v. :
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
D E C I S I O N
Rendered on August 31, 2023
On brief: Plevin & Gallucci Co., L.P.A., Frank Gallucci, III,
and Bradley Elzeer, II, Flowers & Grube, Paul W. Flowers,
Louis E. Grube, and Melissa A. Ghrist, for relator.
On brief: Dave Yost, Attorney General, and Natalie J.
Tackett, for respondent Industrial Commission of Ohio.
IN MANDAMUS ON OBJECTIONS TO THE
MAGISTRATE’S DECISION
BOGGS, J.
{¶ 1} Relator, Patricia A. Heilman (“claimant”), brings this original action for a writ
of mandamus ordering respondent, Industrial Commission of Ohio (“commission”), to
vacate its April 14, 2021 order that denied her C-86 motion for payment of loss-of-use-
compensation, pursuant to R.C. 4123.57(B), for the total loss of use of both arms and legs,
total loss of vision in both eyes, and total loss of hearing in both ears by her deceased
husband, Arthur J. Heilman (“decedent”)1, and to enter an order granting such
compensation.
1 Decedent was injured on April 4, 2019, in the course of and arising out of his employment with respondent
Riverside Main Industries, Inc. He died two days later as a result of his work-related injuries. Claimant’s
request for death benefits was paid on October 15, 2019.
No. 21AP-353 2
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
the court referred this matter to a magistrate who issued a decision, including findings of
fact and conclusions of law, which is appended hereto. The magistrate concluded that
medical reports from John C. Mareska, M.D., cannot constitute “some evidence” to support
the commission’s order denying claimant’s motion for loss-of-use compensation. Dr.
Mareska conducted a review of decedent’s medical file and opined that claimant did not
establish that decedent suffered a total loss of use of his arms and legs, total loss of vision
in both eyes, or total loss of hearing in both ears. The magistrate determined that Dr.
Mareska’s reports, on which the commission “pervasive[ly]” relied in its decision, did not
comply with the holding in State ex rel. Wallace v. Indus. Comm., 57 Ohio St.2d 55 (1979),
inasmuch as Dr. Mareska, a reviewing physician, did not accept the objective findings of
the coroner, an examining physician, in rendering his opinions.
{¶ 3} Therefore, the magistrate recommends that this court grant a limited writ of
mandamus, directing the commission to: (1) vacate its order denying claimant’s motion;
(2) determine, without reliance on Dr. Mareska’s reports, whether claimant has established
decedent’s loss of use of both arms and legs, loss of vision in both eyes, and loss of hearing
in both ears, pursuant to R.C. 4123.57(B); and (3) enter an order granting or denying
compensation accordingly.
I. OBJECTIONS
{¶ 4} The commission raises two objections to the magistrate’s decision, both
concerning the magistrate’s treatment of Dr. Mareska’s reports. The commission first
argues that the magistrate improperly found that Dr. Mareska’s reports did not comply with
the holding in Wallace. Next, it argues that the magistrate improperly reweighed the
evidence and substituted his interpretation for the commission’s interpretation of Dr.
Mareska’s reports.
{¶ 5} Dr. Mareska did not examine decedent. Rather, after claimant filed her C-86
motion for loss-of-use compensation, the Bureau of Workers’ Compensation (“BWC”)
requested that Dr. Mareska review the decedent’s medical file, which included decedent’s
hospital records, the Lucas County Coroner’s case summary and autopsy report, and the
report of an independent medical review by Donato Borillo, M.D., who had opined that
decedent had suffered a loss of use of both arms and legs and a permanent loss of vision.
No. 21AP-353 3
{¶ 6} Dr. Mareska issued a report dated April 26, 2020, in which he concluded,
“There is no valid clinical documentation of [decedent’s] loss of functions of arms, legs,
hearing, or vision.” (Dec. 6, 2021 Stipulated Record; Mareska Report at 20994-R54.) The
magistrate accurately summarizes the findings and conclusions in that report in section 8
of his findings of fact. In response to questions subsequently posed by BWC, Dr. Mareska
issued a multi-page addendum to his report on March 8, 2021, which the magistrate
accurately summarizes in section 13 of his findings of fact. In preparing his addendum
report, Dr. Mareska additionally reviewed the report of an independent medical review by
Patrick Kelley McGriff, D.O., whose review of decedent’s medical file led him to disagree
with Dr. Mareska’s opinions, to agree with Dr. Borillo’s opinions, and to opine that
claimant’s motion should be granted for loss of use of both arms and legs and bilateral loss
of vision and hearing. In his addendum report, Dr. Mareska explained a statement in his
April 26, 2020 report that the autopsy findings were inconsistent and/or incongruent, and
he stated that he disagreed with the conclusions of Drs. Borillo and McGriff that decedent
suffered loss of use of his limbs, vision, and hearing prior to his death.
{¶ 7} Claimant has also filed “limited objections” to the magistrate’s decision.
Claimant does not object to the magistrate’s findings of fact or to the magistrate’s legal
conclusion that Dr. Mareska’s reports could not constitute “some evidence” in support of
the commission’s order, but she objects to the magistrate’s recommendation that the court
return this matter to the commission for a redetermination of her motion for loss-of-use
compensation. Claimant maintains that a limited writ is legally improper to remedy the
commission’s abuse of discretion, when all the remaining evidence supports her claim for
compensation. She argues that this court must instead grant a peremptory writ of
mandamus ordering the commission to grant her motion.
II. STANDARD OF REVIEW
{¶ 8} Because the commission and claimant have filed objections to the
magistrate’s decision, we independently review the record and the decision to ascertain
whether “the magistrate has properly determined the factual issues and appropriately
applied the law.” Civ.R. 53(D)(4)(d).
{¶ 9} To be entitled to a writ of mandamus, claimant must demonstrate by clear
and convincing evidence that she has a clear legal right to the relief sought, that the
No. 21AP-353 4
commission has a clear legal duty to provide that relief, and that she lacks an adequate
remedy in the ordinary course of the law. See State ex rel. Poneris v. Indus. Comm., 10th
Dist. No. 05AP-111, 2005-Ohio-6208, ¶ 11, citing State ex rel. Berger v. McMonagle, 6 Ohio
St.3d 28 (1983).
{¶ 10} Generally, a clear legal right exists when the relator establishes that the
commission abused its discretion by entering an order that is not supported by “some
evidence” in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76, 78-79
(1986). When there is no evidence in the record on which the commission could have based
its factual findings, the commission has abused its discretion and mandamus is
appropriate. State ex rel. Tradesmen Internatl. L.L.C. v. Indus. Comm., 10th Dist. No.
20AP-572, 2022-Ohio-2935, ¶ 7, citing State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d
165, 167 (1981). On the other hand, “ ‘[w]hen an order [of the commission] is adequately
explained and based on some evidence, there is no abuse of discretion and a reviewing court
must not disturb the order.’ ” State ex rel. Waste Mgt. of Ohio v. Indus. Comm., ___ Ohio
St.3d ___, 2022-Ohio-4581, ¶ 14, quoting State ex rel. Aaron’s, Inc. v. Ohio Bur. of
Workers’ Comp., 148 Ohio St.3d 34, 2016-Ohio-5011, ¶ 18.
III. ANALYSIS
{¶ 11} R.C. 4123.57(B) authorizes the payment of scheduled compensation to an
injured worker for the total loss of a body part, including the arms, legs, eyes, and ears.
“Loss” is not limited to amputation, but also encompasses the permanent loss of use of the
affected body part for all practical intents and purposes. 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, ¶ 13, and State ex rel. Alcoa Bldg. Prods. v.
Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, ¶ 12. R.C. 4123.57(B) neither specifies
a required length of time of survival after a loss-of-use injury before benefits are payable
nor requires that an injured worker be consciously aware of the loss of use to qualify for
loss-of-use compensation. Moorehead at ¶ 14, 16. The claimant bears the burden of
proving entitlement to compensation with medical evidence that demonstrates the total
loss of the relevant body part for all practical purposes. State ex rel. Koepf v. Indus. Comm.,
10th Dist. No. 18AP-753, 2019-Ohio-3789, ¶ 6, citing State ex rel. Yellow Freight Sys., Inc.
No. 21AP-353 5
v. Indus. Comm., 81 Ohio St.3d 56, 57 (1998), and State ex rel. Varney v. Indus. Comm.
143 Ohio St.3d 181, 2014-Ohio-5510, ¶ 16.
{¶ 12} The commission denied claimant’s motion for loss-of-use compensation
based on Dr. Mareska’s medical reports, but the magistrate determined that Dr. Mareska’s
reports cannot constitute “some evidence” upon which the commission could base its order,
because Dr. Mareska’s reports do not comply with the holding in Wallace, 57 Ohio St.2d
55.
A. The commission’s objections
1. Dr. Mareska’s reports do not comply with Wallace
{¶ 13} In its first objection, the commission argues that the magistrate erred by
concluding that Dr. Mareska’s reports are not compliant with the holding in Wallace.
{¶ 14} In Wallace, the Supreme Court of Ohio explained the proper use of medical
opinions from non-examining physicians in claims for disability compensation:
In light of the frequent use of medical opinions of non-
examining physicians in processing claims for disability
compensation, the Court of Appeals for Franklin County has
developed an analogy that is employed to insure the reliability
of those opinions. The court considers the physician’s opinion
tantamount to a response to a hypothetical question.
* * * [I]t follows that the non-examining physician is required
to expressly accept all the findings of the examining physicians,
but not the opinion drawn therefrom. If a non-examining
physician fails to accept the findings of the [examining]
doctors or assumes the role of the Industrial Commission, the
medical opinion that is rendered does not constitute evidence
to support a subsequent order of the commission.
(Emphasis added and footnotes omitted.) Id. at 59. The court reasoned that “fundamental
notions of fairness and evidentiary reliability support the analogy” with respect to the
commission’s use of non-examining physicians. Id. at 60. While a reviewing physician may
disagree with the opinions of the examining physicians, the reviewing physician “cannot
ignore the full extent of the factual foundation presented to him.” Id.
{¶ 15} The claimant in Wallace sustained a work-related injury, and a workers’
compensation claim was allowed for a “ ‘contusion and sprain, right wrist with ganglion
formation dorsal aspect corpal area’ ” and a bone spur on the claimant’s right shoulder. Id.
at 55. When the claimant continued to suffer pain in his right upper arm after multiple
No. 21AP-353 6
surgeries, he sought permanent total disability (“PTD”) compensation. The record
contained reports from three physicians, all of whom had examined the claimant and
concluded that he was permanently and totally disabled. Nevertheless, Dr. Davies, a doctor
in the commission’s medical section who did not examine the claimant but only reviewed
the claimant’s file, concluded, “ ‘* * * If only the recognized conditions are considered, the
claimant is not permanently and totally disabled.’ ” (Emphasis sic.) Id. at 57. Based on
that conclusion, the commission found the claimant was not permanently and totally
disabled. This court subsequently denied the claimant’s request for a writ of mandamus.
{¶ 16} On appeal to the Supreme Court of Ohio, the claimant argued that Dr.
Davies’s report was not “some evidence” upon which the commission could base its
decision. The court agreed and held that, because Dr. Davies’s opinion “in no way reflects
that it accepts and is based upon all the factual findings of the physicians who examined”
the claimant, “it cannot, by itself, be considered evidence upon which the commission could
base its final order.” Id. at 61; accord State ex rel. Lampkins v. Dayton Malleable, Inc., 45
Ohio St.3d 14, 16 (1989). The court therefore reversed this court’s judgment denying the
claimant’s complaint for a writ of mandamus.
{¶ 17} Here, the magistrate concluded that Dr. Mareska’s reports did not comply
with Wallace because Dr. Mareska did not accept the objective findings of the coroner, one
of the examining physicians, as set out in the coroner’s autopsy report and case summary.
In fact, Dr. Mareska specifically stated that the coroner’s findings regarding decedent’s
cerebral hemispheres were neither “congruent nor consistent with each other” and that he
“could not rely on the described autopsy findings as being accurate or reliable.” (Dec. 6,
2021 Stipulated Record, Mareska Report at 20994-R57.) As the magistrate noted, Dr.
Mareska found in his addendum report “that the CT scan of the brain showed damage that
was not reported in the autopsy report; the CT scan showed no evidence of conditions that
were reported in the autopsy; the autopsy failed to show conditions that would be expected;
the autopsy revealed conditions that were not supported by the clinical correlations or CT
scan findings; and the autopsy showed normal conditions that were inconsistent with the
clinical information or on the examination reported in the evidence-of-injury section of the
autopsy.” (Dec. 21, 2022 Mag.’s Decision at 70.) Based on Dr. Mareska’s noncompliance
No. 21AP-353 7
with Wallace, the magistrate concluded that his reports could not constitute “some
evidence” on which the commission could base its order.
{¶ 18} The commission argues that the magistrate employed an “improperly strict”
interpretation of Wallace, in a way that improperly restricts reviewing physicians’ ability to
offer opinions that differ from those of examining physicians when the reviewing physician
believes that the examining physician’s findings are inaccurate, unreliable, inconsistent, or
incongruent with objective test results. (Jan. 31, 2023 Commission’s Objs. at 2.) Yet a
reviewing physician’s role is not to question the accuracy or reliability of the examining
physician’s objective findings. Indeed, Wallace makes clear that a reviewing physician
exceeds his role in the claim review process by offering a medical opinion that is based on
anything other than the examining physicians’ objective findings.
{¶ 19} In support of its first objection, the commission relies on Teece, 68 Ohio St.2d
165, in which the claimant, Teece, appealed this court’s denial of her complaint for a writ of
mandamus ordering the commission to find her permanently and totally disabled. Teece,
who had been receiving permanent partial disability compensation for physical injuries to
her right elbow and lower back and for anxiety and depression, filed applications with the
commission for PTD compensation. She submitted with her applications a medical report
from Dr. Robert R. Kessler, an orthopedist who had examined her relative to her physical
injuries and had concluded that she was permanently and totally disabled as a result of
those injuries. Teece also submitted a psychiatric report from Dr. Saim Giray, who had
examined Teece and “ ‘reviewed for reference’ certain medical reports,” id. at 165, before
concluding that Teece was “permanently and totally disabled as a result of the combined
effect of her psychiatric condition and her physical injuries,” id. at 166.
{¶ 20} At the commission’s request, Dr. W.J. McCloud examined Teece with respect
to her physical injuries, and psychiatrist Dr. Marc J. Horowitz examined Teece with respect
to her psychological condition. Dr. McCloud found a lack of sufficient objective evidence of
PTD as a result of Teece’s physical injuries, but he did not mention Teece’s psychological
condition. Dr. Horowitz recited the history of Teece’s physical injuries and concluded that
she was entitled to “ ‘15% permanent partial disability on the basis of Anxiety and
Depression over and above any physical consequences of her injury.’ ” Id. at 166. Based on
No. 21AP-353 8
the four medical reports and other evidence presented, the commission denied Teece’s
applications for PTD compensation.
{¶ 21} In denying Teece’s request for a writ of mandamus, this court held that Dr.
Kessler’s report constituted evidence upon which the commission could have based its
decision. We further held that the three other doctors’ reports were insufficient to form the
basis for the commission’s decision, but they were sufficient for purposes of allowing the
commission to evaluate Dr. Kessler’s credibility and reliability.
{¶ 22} On appeal, the Supreme Court addressed whether each of the four medical
reports constituted “some evidence” upon which the commission could have based its
decision. The court first held that Dr. Kessler’s report constituted evidence that Teece was
permanently and totally disabled.2 In contrast, it held that Dr. McCloud’s report could not
constitute evidence to support the commission’s decision, because Dr. McCloud did not
consider Teece’s allowed psychiatric condition. It went on to hold that the psychiatrists’
reports could not, “by themselves, be considered evidence upon which the commission
could base its final orders” because the psychiatrists were non-examining physicians as to
Teece’s physical injuries and, in violation of Wallace, did not expressly adopt the factual
findings of the physicians who examined Teece with respect to her physical injuries. Id. at
168.
{¶ 23} After concluding that the medical reports from Drs. McCloud, Horowitz, and
Giray could not constitute some evidence in support of the commission’s final order, the
court nevertheless held that those reports remained “relevant and admissible” inasmuch as
the factual findings in those reports—from physicians who had each examined Teece and
had made their own objective findings—could be used to test the credibility and reliability
of Dr. Kessler’s conclusion that Teece was permanently and totally disabled. Id. at 168-69.
The court noted there was a conflict between the objective, factual findings of Dr. Kessler
and Dr. McCloud with respect to Teece’s limitation of motion in her right elbow and
forearm. Id. at 169. The court stated:
2 The court held that Dr. Kessler’s report complied with State ex rel. Anderson v. Indus. Comm., 62 Ohio St.2d
166 (1980), in which the court established a combined effects evidentiary standard that required the
commission to consider only medical reports that evaluated the claimant’s total impairment resulting from
the combined effect of all allowed conditions. The Supreme Court subsequently overruled Anderson and
abandoned the combined effects standard. See State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18(1987).
No. 21AP-353 9
The holdings in [Anderson and Wallace] do not require the
commission to accept the factual findings stated in a properly
qualified medical report at face value and unquestioningly
adopt them as those of the commission. To do so would be
tantamount to allowing a physician to determine disability
rather than the commission. Questions of credibility and the
weight to be given evidence are clearly within the commission’s
discretionary powers of fact finding.
Id.{¶ 24} The commission argues that the magistrate’s decision here rejects the very
latitude the Supreme Court approved in Teece. We disagree. Nothing in Teece suggests
that the commission may rely on the report of a reviewing physician who does not accept
the examining physicians’ objective factual findings as required by Wallace. The court in
Teece merely recognized that the commission is not required to accept or adopt the factual
findings stated in a properly qualified medical report, because questions of credibility and
the weight of the evidence fall squarely within the commission’s discretionary fact finding
authority. Additionally, the court acknowledged that factual finding by other doctors who
examined the claimant—even if their opinions were not properly qualified—might influence
the commission’s exercise of that discretionary authority. As the trier of fact, the
commission may determine that an examining doctor’s factual findings are not credible,
but it is not a reviewing physician’s place to do so. And as the Supreme Court stated in
Wallace, “If a non-examining physician * * * assumes the role of the Industrial
Commission, [then] the medical opinion that is rendered does not constitute evidence to
support a subsequent order of the commission.” Id. at 59.
{¶ 25} The commission also attempts to reframe Dr. Mareska’s reports, arguing that
Dr. Mareska did accept the examining physicians’ factual findings but that he properly
explained why he believed those findings to be problematic and/or in conflict with each
other. That argument, however, is blatantly inconsistent with the plain language of Dr.
Mareska’s initial report, which states, “I could not rely on the described autopsy findings
[regarding decedent’s cerebral hemispheres] as being accurate or reliable.” (Stipulated
Record; Mareska Report at 20994-R57.) In his follow-up report, Dr. Mareska reiterated,
“In my opinion, the autopsy report has several instances of either not being consistent
within itself, and not being consistent with the expected findings because of the clinical
course.” Thus, even though Dr. Mareska stated that he “accept[ed] * * * the findings of the
No. 21AP-353 10
examining physician(s),” he did not accept those findings in practice. (Stipulated Record;
Mareska Report at 20994 S89 & S95.) See State ex rel. Hauck v. Hillandale Communities,
10th Dist. No. 06AP-234, 2007-Ohio-842, ¶ 3 (reviewing physician’s medical report did
not constitute “some evidence” where, “[d]espite Dr. Scharf’s claim that he had accepted
the medical findings of the examining physician, he wholly ignored those findings[,]” in
violation of Wallace).
{¶ 26} For these reasons, we conclude that the magistrate properly concluded that
Dr. Mareska’s reports did not comply with Wallace and could not constitute “some
evidence” in support of the commission’s order. We therefore overrule the commission’s
first objection.
2. Second objection–weighing of the evidence
{¶ 27} In its second objection, the commission argues that the magistrate erred by
reweighing the evidence and by substituting his interpretation of Dr. Mareska’s reports for
that of the commission. We agree the commission is correct that this court may not reweigh
the evidence or substitute its view of the credibility of the evidence for that of the
commission. See State ex rel. US Tubular Prods. v. Indus. Comm., 10th Dist. No. 18AP-
795, 2020-Ohio-3427, ¶ 15, citing State ex rel. Consolidation Coal Co. v. Indus. Comm., 78
Ohio St.3d 176, 177 (1997), citing Burley, 31 Ohio St.3d at 20. But the commission is
incorrect insofar as it argues that the magistrate overstepped his bounds and reweighed the
evidence here. The magistrate did not determine that other evidence—specifically the
coroner’s report—was more credible or entitled to more weight than Dr. Mareska’s reports.
He simply held that the commission was not entitled to rely on Dr. Mareska’s reports
because they did not comply with the holding in Wallace.
{¶ 28} Further, we reject the commission’s suggestion that, under the magistrate’s
analysis, Dr. Mareska would face the impossible choice either to violate Wallace by not
accepting the examining physician’s supposedly inconsistent findings or to accept those
findings and then proffer an opinion that those findings conflict with each other or with
other findings. A reviewing physician need not make that choice, because the Supreme
Court has already explained the limited scope of the reviewing physician’s duty. A
reviewing physician must base his medical opinion on the factual findings of the examining
physicians.
No. 21AP-353 11
{¶ 29} Because the magistrate did not reweigh the evidence or substitute his
interpretation of Dr. Mareska’s reports for that of the commission, we overrule the
commission’s second objection.
B. Claimant’s limited objections
{¶ 30} In her limited objections, claimant challenges only the magistrate’s
recommendation that this matter be returned to the commission for a redetermination of
her motion for loss-of-use compensation. She argues that a limited writ/remand is
unwarranted and improper, both because all the remaining evidence supports her claim for
relief and because, more generally, the court lacks the authority to grant a limited writ. We
disagree on both fronts.
{¶ 31} Claimant first asserts that, setting aside Dr. Mareska’s reports (as this court
has determined is required) and Dr. McGriff’s report (which the commission rejected as
improper for noncompliance with Wallace), the only remaining evidence upon which the
commission could have based its order denying her motion for loss-of-use compensation
was the report of Dr. Borillo, who stated, “even if [decedent] had survived the increased
intracranial pressure from his head injury, and stabilization of his T4 fracture, to a
reasonable degree of medical certainty he would have [had] a permanent and total loss of
use of” his arms and legs. (Stipulated Record; Borillo Report at 20994-R40.) Dr. Borillo
further concluded that decedent “suffered a permanent loss of vision, as his bilateral orbits
(and internal structures) were shattered,” and that decedent’s “optic nerve and structures
related to the visual apparatus were no doubt permanently injured.” Id. Dr. Borillo offered
no opinion whether decedent suffered a loss of hearing prior to his death.
{¶ 32} While noting potential questions about its persuasiveness, the commission
determined that Dr. Borillo’s report complied with Wallace and was competent evidence
on which it could rely. Yet its order did not thereafter refer to or make any express
determination regarding the persuasiveness of any of Dr. Borillo’s conclusions. Instead,
the commission relied exclusively on Dr. Mareska’s reports, which the commission found
“persuasive.” (Mar. 18, 2021 Record of Proceedings at 2.) Claimant’s first argument
questions the effect of our determination that the commission could not rely on Dr.
Mareska’s reports as “some evidence” in support of its order.
No. 21AP-353 12
{¶ 33} In State ex rel. Gay v. Mihm, 68 Ohio St.3d 315, 322 (1994), the Supreme
Court “depart[ed] from past practice” and held that this court did not abuse its discretion
when, instead of returning the case to the commission for further consideration and an
amended order, it ordered the commission to enter a finding that the claimant was
permanently and totally disabled. The Supreme Court reasoned that we had already
determined, “no useful purpose would be served by ‘remanding’ the cause to the
commission to justify a decision that [we] apparently believed could not possibly be
justified.” Id. It stated, “There comes a point in time when, in light of the overwhelming
evidence, the courts must say, ‘enough is enough.’ That time has arrived, we have had
enough, and so, too, did the court of appeals.” Id. at 323. After noting that the 64-year-old
claimant was medically incapable of returning to his work as a construction laborer, had a
limited educational background, and had a proven inability to develop new skills necessary
for other types of employment, the court asked, “What more did (or would) this particular
claimant have to do to prove to the commission that he is permanently and totally
disabled?” Id. at 323. See also State ex rel. Franks v. Indus. Comm., 99 Ohio St.3d 35,
2003-Ohio-2456 (reversing this court’s judgment denying relief in mandamus and
proceeding directly to judgment for claimant based on the sole medical report in the
administrative record that addressed the question of claimant’s loss of half of his big toe);
Wyrick, 2014-Ohio-541 (reversing this court’s judgment denying a writ of mandamus and
ordering that claimant was entitled to compensation for the scheduled loss of his left arm,
where the only medical report that could constitute some evidence contradicted the
commission’s denial of compensation).
{¶ 34} The Supreme Court’s determination in Gay that this court did not abuse its
discretion when it ordered the commission to find that the claimant was permanently and
totally disabled does not equate to a determination that this court was required to do so.
The Supreme Court subsequently clarified that the holding in Gay “is not an occasion for
de novo evidentiary review” and that the relief afforded in Gay “will be granted only in
extraordinary circumstances,” as it “was intended as a narrow exception” to the general
practice of remanding deficient orders to the commission. (Emphasis sic.) State ex rel.
Pass v. C.S.T., 74 Ohio St.3d 373, 376 (1996). An order directly compelling the commission
to award compensation—is appropriate only when the claimant “show[s] that a new
No. 21AP-353 13
decision by the commission denying [compensation] would necessarily be an abuse of
discretion.” State ex rel. Mobley v. Indus. Comm., 78 Ohio St.3d 579, 585 (1997), citing
Pass at 376. In both Pass and Mobley, the Supreme Court granted limited writs, returning
the matters to the commission with instructions to issue amended orders.
{¶ 35} This court has similarly returned cases to the commission after determining
that the commission abused its discretion by denying claimants’ motions for compensation.
For example, in Hauck, 2007-Ohio-842, this court held that the medical report upon which
the commission relied in denying the realtor’s application for temporary total disability
(“TTD”) compensation did not comply with Wallace and could not constitute “some
evidence” to support the commission’s order. Although the only other medical report in
the record, from the relator’s treating physician, certified the relator as being temporarily
and totally disabled, we nevertheless remanded the matter to the commission “to
reconsider relator’s entitlement to TTD compensation without consideration of” the report
that did not comply with Wallace. Id. at ¶ 4.
{¶ 36} The determination that Dr. Mareska’s reports are not “some evidence” on
which the commission could base its order denying claimant’s motion for scheduled-loss
compensation does not necessarily entitle claimant to such compensation based on Dr.
Borillo’s report, because the commission is not required to accept Dr. Borillo’s factual
findings or conclusions. It is the commission’s function to assign credibility and weigh the
evidence before it. State ex rel. Horsley v. Indus. Comm., 10th Dist. No. 87AP-215, 1988
Ohio App. LEXIS 1184, *9 (Mar. 29, 1988); see also State ex rel. West v. Dept. of Ins., 10th
Dist. No. 10AP-563, 2011-Ohio-3027; State ex rel. Belivanakis v. Indus. Comm., 10th Dist.
No. 02AP-822, 2003-Ohio-4174, ¶ 42. This court lacks the authority to determine the
weight and credibility of the remaining evidence, including Dr. Borillo’s report. See State
ex rel. Bowman v . Indus. Comm., ___ Ohio St.3d ___, 2022-Ohio-233, ¶ 16. Requiring
the commission to accept the factual findings contained in a medical report and to adopt
the conclusions therein as the commission’s own “would be tantamount to allowing a
physician to determine disability rather than the commission.” Id., citing Teece, 68 Ohio
St.2d at 169.
{¶ 37} Finally, we reject claimant’s more general argument that, in mandamus
actions stemming from decisions of the commission, appellate courts lack the authority to
No. 21AP-353 14
issue limited writs. Both this court and the Supreme Court have routinely issued limited
writs for decades. See, e.g., Mobley, 78 Ohio St.3d at 586; Pass, 74 Ohio St.3d at 376;
Hauck, 2007-Ohio-842; State ex rel. Mullens v. The Williams Mfg. Co., 10th Dist. No.
86AP-04, 1986 Ohio App. LEXIS 9048 (Nov. 6, 1986). Claimant’s stated fear that the
continued use of limited writs will result in a perpetual cycle of mandamus actions and
remands to the commission is nothing but speculative catastrophizing that the
longstanding use of limited writs in similar contexts easily dispels.
{¶ 38} Claimant requested a writ of mandamus ordering the commission to take two
actions: (1) to vacate its April 14, 2021 order denying her motion for loss-of-use
compensation, and (2) to grant that motion. We agree with the magistrate’s conclusion that
claimant has demonstrated a clear legal right to a writ compelling the commission to take
the first requested action, but not the second. The commission abused its discretion in
entering its April 14, 2021 order by improperly relying on Dr. Mareska’s reports, which
could not constitute “some evidence” because of Dr. Mareska’s noncompliance with
Wallace. That, however, is the extent of the commission’s action that calls for correction
now. We cannot determine whether claimant had a clear legal right to loss-of-use
compensation without stepping outside the limited bounds of our authority and improperly
assessing the weight and credibility of the remaining evidence in support of claimant’s
motion. The fact that claimant’s ultimate entitlement to compensation must be considered
anew by the commission does not preclude this court from granting her the relief to which
she is entitled—an order compelling the commission to vacate its April 14, 2021 order
denying her motion for loss-of-use compensation and to reconsider the merits of that
motion.
{¶ 39} For these reasons, we overrule claimant’s limited objections to the
magistrate’s decision.
IV. CONCLUSION
{¶ 40} Following an independent review pursuant to Civ.R. 53, we find the
magistrate has properly determined the pertinent facts and applied the appropriate law.
Therefore, we overrule both the commission’s and claimant’s objections to the magistrate’s
decision, and we adopt the magistrate’s decision, including the findings of fact and
conclusions of law contained therein, as our own. In accordance with the magistrate’s
No. 21AP-353 15
decision, we grant a limited writ of mandamus ordering the commission to vacate its
April 14, 2021 order and issue an order determining, consistent with the law and this court’s
decisions, whether claimant has established decedent’s loss of use of both arms and legs,
loss of vision in both eyes, and/or loss of hearing in both ears, pursuant to R.C. 4123.57(B),
and to enter an order granting or denying compensation accordingly.
Objections overruled;
limited writ granted.
BEATTY BLUNT, P.J., and MENTEL, J., concur.
No. 21AP-353 16
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Patricia A. Heilman, :
Relator, :
v. : No. 21AP-353
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE‘S DECISION
Rendered on December 21, 2022
Plevin & Gallucci Co., L.P.A., Frank Gallucci, III, Bradley
Elzeer, II, and Flowers & Grube, Paul W. Flowers, Louis E.
Grube, and Melissa A. Ghrist, for relator.
Dave Yost, Attorney General, and Natalie J. Tackett, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 41} Relator, Patricia A. Heilman (“claimant”), has filed this original action
requesting this court issue a writ of mandamus ordering respondent, Industrial
Commission of Ohio (“commission”), to vacate its order that denied payment for loss of use
of both arms and legs, loss of vision in both eyes, and loss of hearing in both ears, pursuant
to R.C. 4123.57(B), with regard to her deceased husband, Arthur J. Heilman (“decedent”),
and to enter an order granting such compensation.
Findings of Fact:
{¶ 42} 1. The decedent was injured on April 4, 2019, in the course of and arising from
his employment with respondent, Riverside Maine Industries, Inc. (“employer”), when he
No. 21AP-353 17
was struck in the head by a piece of metal from a machine that suffered a failure. Decedent
died on April 6, 2019, as a result of his work-related injuries. The employer certified
claimant’s claim, and her request for death benefits was paid on October 15, 2019.
{¶ 43} 2. The April 4, 2019, emergency room reports and diagnostic testing showed
that decedent had multiple hematomas to the bilateral orbits, nonreactive pupils, left orbit
fracture, temporal bone fracture, and closed fracture of the clivus of the occipital bone.
{¶ 44} 3. The April 4, 2019, ophthalmology exam by Jason Ofori, M.D., showed
decedent had periorbital hematoma and ecchymosis to both eyelids, clear corneas, deep
and clear anterior chambers, clear lenses, minimally reacting pupils, bright red vitreous
with no floaters or vitreous hemorrhage, intact globes, and no clinical evidence of acute
optic nerve injury, but he was unable to assess vision, visual fields, extra ocular movements,
and dilation.
{¶ 45} 4. The coroner’s case summary, completed by coroner Diane Scala-Barnett,
M.D. (“coroner”), indicated the following, in pertinent part: (1) a deep longitudinal tear of
the left cerebral hemisphere with large intra parenchymal hematoma; (2) hematoma breaks
into the lateral ventricle; (3) shearing white matter hemorrhages, left frontal lobe near
laceration; (4) subarachnoid hemorrhage; (5) contracoup contusion hemorrhages, right
lateral surface of the brain; (6) subfalcine herniation-mass effect, left to right shift of the
midline; and (7) subgaleal hemorrhage, entire scalp.
{¶ 46} 5. In addition to the findings in the coroner’s case summary, the coroner’s
report of autopsy indicated the following, in pertinent part: (1) the corneas are clear;
(2) there is a bilateral conjunctival hemorrhage; (3) both eyelids are heavily bruised;
(4) there are fractures of the right frontal bone extending through the orbital plate into the
pituitary fossa; (5) there is a left occipital fracture; (6) there are no skeletal fractures or
deformities; (7) the lower extremities are without fractures or deformities; and (8) there
are no lesions on the back and no gross deformities of the spine.
{¶ 47} 6. On March 2, 2020, Donato Borrillo, M.D., completed an independent
medical review (“IMR”), in which he found the following: (1) decedent suffered a
permanent loss of use of his four extremities and permanent loss of vision; (2) even if
decedent had survived the increased intracranial pressure from his head injury and
stabilization of his T4 fracture, he would have a permanent and total loss of use of the four
No. 21AP-353 18
extremities; (3) decedent suffered a permanent loss of vision, as his bilateral orbits and
internal structures were shattered, and the optic nerve and structures related to the visual
apparatus were no doubt permanently injured; (4) decedent suffered a spinal injury at T4
and had no purposeful movement of his four limbs while hospitalized; and (5) despite relief
of his intracranial pressure, he still had permanent spinal and central nervous system
injury.
{¶ 48} 7. On March 31, 2020, claimant filed a C-86 motion for payment of loss-of-
use compensation for the total loss of use of both arms and legs, loss of vision in both eyes,
and loss of hearing in both ears, relying upon Dr. Borrillo’s IMR report.
{¶ 49} 8. On April 26, 2020, John C. Mareska, M.D., at the request of the Bureau of
Workers’ Compensation (“BWC”), completed a review of the medical file. In a report of the
same date, Dr. Mareska found the following: (1) decedent suffered no loss of use of his arms
and legs due to an injury of the arms and legs themselves, as the physical exam, radiological
studies, and autopsy reports document no injuries to the arms or legs themselves; (2) there
was no loss of use to both arms and legs due to injury of the spinal cord, as physical exam,
radiological studies, and autopsy reports show no abnormalities of the spinal cord; (3) there
was insufficient evidence to support the loss of use to both arms and legs due to loss of brain
function secondary to the injury in question; (a) physical examinations reveal motor
movements despite sedation and narcotics; (b) the radiographic studies reveal
abnormalities of the cranium and intracranial structures without valid clinical correlation
of the loss of use of the arms and legs; (c) the autopsy findings of the cerebral hemisphere
seem incongruent because the findings of the left hemisphere being squeezed and collapsed
from the outside by a subdural, squeezed and expanded from the inside by an
intraventricular hemorrhage, and exhibiting lacerations and hematomas in the
parenchyma are not congruent or consistent with each other; (4) under the influence of
narcotics and sedation, the reduction of spontaneous movements or responses to pain
stimuli is not a fully valid clinical assessment of the degree of organic/structural
incapacitation regarding the loss of arms and legs; (5) radiographic and autopsy reports are
not predictive of clinical performance; clinical correlation is necessary and the usual
standard; given the absence of valid and reliable clinical evaluations (because examinations
were done with sedatives and narcotics being used) of arm and leg motor movements not
No. 21AP-353 19
seen, plus the repeated presence of observed and documented spontaneous movements,
the evidence is insufficient to support the condition of loss of use of both arms and both
legs; (6) there is insufficient evidence to support loss of vision; (7) there is no
documentation that vision was ever checked; pupillary response is not a check of vision
capacity; (8) radiographic studies document that the globes are intact and not shattered;
there is intrusion of a bony fragment into the optic canal but no reported contact or
impingement or injury to the optic nerve; and there is no abnormality of the calcarine visual
cortex where the vision is “displayed”; (9) broken, shattered, or fragmented bones,
fragments near ocular muscles or nerves, fixed or reactive pupils, and bruised and swollen
eyelids do not result in a loss of vision; (10) subarachnoid and subdural hemorrhages over
the surfaces of the brain do not reliably result in loss of vision; (11) given the absence of
clinical findings/documentation of loss of vision, radiographic findings of intact globes, no
mention of affliction of the optic nerve, plus no autopsy findings reporting of abnormalities
of globes or nerves, the evidence is insufficient to support loss of vision, total loss of vision,
or permanent loss of vision by either: (a) the brain’s inability to process visual stimuli; (b)
direct trauma to the eye; or (c) direct trauma to the optic nerves; (12) neither Dr. Borrillo’s
report nor any other medical evidence provides evidence to support loss of hearing; (13) by
physical examination, there was no evidence of an external ear injury; there is no evidence
of hemotympanum that would have reflected a middle ear and possibly auditory nerve
injury; there is no clinical testing done of auditory function; there is no clinical evidence of
hearing loss; radiographs show no fracture of the petrous bone that encased the auditory
nerve and no evidence of injury to the auditory nerve; the autopsy does not report any
abnormality of the ear or of the auditory nerve, and the brainstem was normal; (14) when
one is unconscious, whether induced by a blow to the head, sedative medications, or
narcotics, one is unaware of one’s self and also unaware of the environment; one does not
have awareness of his arms or legs or awareness of any desire to do anything with them;
(15) given that decedent’s exams were performed while on sedation, paralytics, and
narcotics during his brief period of post-injury survival, there was not a valid, accurate, or
reliable means of prognosticating inability use both arms, both legs, hearing loss, and vision
loss; (16) spontaneous motor movements are repeatedly documented in the file by different
examiners; and (17) Dr. Mareska accepts the findings but not necessarily the opinions of
the examining physicians.
No. 21AP-353 20
{¶ 50} 9. Patrick Kelley McGriff, D.O., at the request of the employer, completed a
review of the medical file, including Dr. Borrillo’s March 2, 2020, and Dr. Mareska’s
April 26, 2020, reports. In an August 19, 2020, report, Dr. McGriff found the following: (1)
accepting Dr. Mareska’s opinion regarding the loss of use of both arms and legs, then the
cause of decedent’s inability to purposely move must be a direct result of loss of brain
function, as at no time during decedent’s hospital admission does he demonstrate the
ability to purposefully move his arms and legs, and he is progressively unable to withdraw
from noxious stimuli; and (2) with regard to Dr. Mareska’s opinion regarding the loss of
vision, he disagrees with Dr. Mareska’s conclusion in that the autopsy demonstrated
evidence of injury specifically to the right and left frontal bones and orbital/occipital
structures; at no time, irrespective of decedent’s sedation level, do records indicate that
decedent purposely responded to any auditory commands; and (3) he concurs with
Dr. Borrillo’s opinions and believes the claim should be additionally allowed for the loss of
use of arms and legs, loss of vision, and loss of hearing.
{¶ 51} 10. On August 26, 2020, a district hearing officer (“DHO”) held a hearing on
claimant’s motion. In an order mailed August 28, 2020, the DHO found the following: (1)
decedent’s C-86 is denied; (2) Dr. Mareska opines there is insufficient evidence to establish
the loss of use of both arms and legs as a result of loss of brain function; (2) Dr. Mareska
opines there is no loss of use of arms and legs due to injury to the spinal cord; (3) Dr.
McGriff opines in his August 19, 2020, report that decedent suffered loss of use of both
arms and legs as a result of loss of brain function; however, the court held in State ex rel.
Smith v. Indus. Comm., 138 Ohio St.3d 312, 2014-Ohio-513, that the loss of use does not
include loss of use as a result of a loss of brainstem functioning; (4) with respect to the loss
of bilateral vision, Dr. Mareska opines that there is no sufficient evidence to support a
conclusion that decedent suffered a loss of vision by either the brain’s inability to process
visual stimuli, direct trauma to the eyes, or trauma to the optic nerve; (5) Dr. Mareska
opines that there is no evidence by way of physical examination, radiographic studies, or
autopsy, of an injury or dysfunction to the ear, auditory nerve, or brain that would result in
a loss of hearing; and (6) finding most persuasive and relying on the report of Dr. Mareska,
decedent has not met his burden to establish the loss of use of his bilateral arms and legs,
bilateral vision, or bilateral hearing as a result of the industrial injury. Claimant appealed.
No. 21AP-353 21
{¶ 52} 11. On October 21, 2020, a staff hearing officer (“SHO”) held a hearing on
claimant’s appeal. In an order mailed November 24, 2020, the SHO found the following:
(1) the DHO’s order is vacated; (2) decedent is denied a scheduled loss of use of both legs
and both arms, loss of vision in both eyes, and loss of use of hearing in both ears;
(3) Dr. Mareska’s April 26, 2020, report is not some evidence on which the commission can
rely, pursuant to State ex rel. Wallace v. Indus. Comm., 57 Ohio St.2d 55 (1979), because
Dr. Mareska indicated that the autopsy findings were not congruent nor consistent with
each other and were not accurate or reliable; (4) Dr. Borrillo’s report complied with
Wallace, in that he indicated he expressly accepted the findings and reports of the
examining physicians; (5) Dr. McGriff did not expressly accept the findings of the
examining physician in the autopsy report; thus, Dr. McGriff’s report is not some evidence
the commission could rely upon pursuant to Wallace; (6) Smith does not extend beyond
vision and hearing and does not support the proposition that the brain cannot cause the
loss of use of otherwise functioning arms and legs; (7) the emergency room record notes no
deformity to the spine, no edema or deformity to the decedent’s extremities, and no
spontaneous movement of the extremities but normal reflexes; (8) the April 4, 2019, note
from Aaron Moore, M.D., documented that decedent withdrew from pain, had no
musculoskeletal deformity, and prior to intubation moved his left arm without purpose; (9)
the post-operative note from Matthew Syverson, D.O., documented that decedent moved
part of his body but did not remove noxious stimulus, had no bilateral hand grasp, had no
bilateral wiggle of fingers or toes, had negative bilateral Babinski’s, and no response to
sternal rub; (10) Dr. Orfori’s April 4, 2019, note indicated concerns for the integrity of the
decedent’s optic nerve due to orbital wall and posterior orbits fractures; (11) an April 4,
2019, head CT scan documented the globes were intact, and a CT scan of the facial bones
from the same date demonstrated the fractures documented by Dr. Orfori; (12) the April 4,
2019, neurosurgery consultation note from Mohammed Jallad, APRN-CNP, documented
there was a report of some type of movement in the trauma bay, the decedent’s eyes were
swollen shut, decedent withdrew from pain, and he had a closed fracture at T4; (13) Dr.
Jallad’s April 5, 2019, post-surgical neurosurgery progress note documented the decedent
had no response to painful stimuli; (14) the April 5, 2019, palliative care inpatient consult
from Rashmi Puri, M.D., documented the decedent had extensive orbital fractures
extending to the optic canal, had fractures of the posterior orbits, had a closed fracture at
No. 21AP-353 22
T4, had no response to painful stimuli, and did not follow commands; (15) the April 4, 2019,
CT scans documented no acute fractures of the decedent’s cervical and lumbar spines and
pelvis, an acute fracture involving the T4 superior endplate anteriorly with no significant
height loss, and a focal paraspinal hematoma next to the T4 fracture; (16) the April 6, 2019,
discharge summary listed left orbit fracture and T4 fracture, and decedent had a poor
neurological examination off sedation with no response to painful stimuli; (17) the autopsy
report documented findings with regard to the extremities and spine; (18) Dr. Borrillo’s
March 2, 2020, report provided an opinion regarding the loss of use of decedent’s four
extremities and loss of vision; however, Dr. Borrillo did not provide an opinion whether
decedent sustained a loss of bilateral hearing; (19) Dr. Borrillo’s March 2, 2020, report is
defective and unreliable because his opinions are based on findings not supported by the
medical record; (20) although Dr. Borrillo opined that decedent had a permanent spinal
injury, the April 4, 2019, thoracic CT scan documented an acute fracture with no significant
height loss, and the autopsy report documented decedent’s spinal cord was intact;
(21) although Dr. Borrillo indicated that decedent’s bilateral orbits and internal structures
were shattered, Dr. Orfori’s April 4, 2019, report assessed decedent with bilateral globe
contusion with multiple comminuted bilateral orbital wall fractures of both eyes, intact
globes bilaterally, and no clinical evidence of acute optic nerve injury, while the April 4,
2019, head CT scan documented the globes were intact; (22) there was insufficient evidence
of an external injury to one or both of decedent’s ears, and there was insufficient evidence
that decedent’s hearing was tested; thus, there was insufficient persuasive evidence that
decedent sustained a loss of his bilateral hearing; (23) the weight of the evidence does not
support the decedent sustained a loss of use of both legs, both arms, vision in both eyes, or
hearing in both ears; and (24) loss of use compensation is denied. Claimant appealed.
{¶ 53} 12. On December 15, 2020, the commission refused the appeal. On
January 25, 2021, claimant requested that the commission reconsider its order.
{¶ 54} 13. On March 8, 2021, Dr. Mareska issued a lengthy addendum to his report,
answering several questions presented by the BWC regarding the claim. With regard to his
opinion in his April 26, 2020, report, that the findings in the autopsy were inconsistent
and/or incongruent, Dr. Mareska opined the following: (1) the CT scan of the brain showed
an extensive subdural hematoma over the left cerebral hemisphere, but the autopsy does
No. 21AP-353 23
not report any flattening of the gyri or effacement of the cortical surface structures; it is
rather atypical for the autopsy to not reveal cortical effacement given the known
clinical/surgical information; (2) the CT scan showed no evidence of hydrocephalus, but
the autopsy showed a large, quite enlarged, left ventricle; this is an unexplained and
unusual discrepancy when compared to the clinical, neurosurgical, and CT report; how and
when did this quite large ventricle arise, given the patient died within 48 hours of his
neurosurgical decompressive procedure?; (3) one would expect thinning of the cortex,
which is not found on autopsy; it was unusual that the bilateral cortical and subcortical
tissue thicknesses were normal and not asymmetrical; (4) the autopsy reveals the left
hemisphere to have a longitudinal laceration and large intraparenchymal hemorrhage, but
there are no clinical correlations or CT scan findings to support this autopsy finding, and
the coronal slices of the cerebral cortex are not reported as showing any signs of a laceration
or contusions; and (5) coronal slices of the bilateral hemispheres reveal normal width and
thickness with no evidence of a left hemisphere laceration, left hemisphere
intraparenchymal hemorrhage, enlarged left ventricle, or rupture of the left hemisphere
intraparenchymal hemorrhage into the ventricle, which is not consistent with the clinical
information or on the examination reported in the evidence of injury section of the autopsy.
{¶ 55} With regard to the conclusions in Dr. Borrillo’s March 2, 2020, report or
Dr. McGriff’s August 19, 2020, report, Dr. Mareska opined the following: (1) he does not
agree with their conclusions regarding decedent’s having loss of use; (2) with regard to Dr.
McGriff’s loss-of-vision conclusions, Dr. McGriff contends that the injury to the frontal,
orbital, and occipital bones is causative of permanent loss of vision; however, these bones
and their injuries, by and in and of themselves, have no impact on the capacity for vision,
none of the fractures damages the adjacent vision/neural tissue, and the May 4, 2019,
ophthalmological evaluation was unable to document vision loss or impairment; (3) it is
not well reasoned by Dr. McGriff that fractured bones alone are responsible for total
permanent loss of vision; (4) the subjective and/or objective evidence and findings in the
presented file are insufficient to support the conclusion that the injured worker suffered
total and permanent loss of vision; (5) with regard to loss of use of limbs, he does not agree
with Dr. Borrillo’s conclusion addressing loss of use of all four extremities, and the same
conclusion applies to Dr. McGriff’s conclusions, in that (a) Dr. McGriff’s thoughts are
vexing and not well reasoned; (b) failure of spontaneous or purposeful movements of
No. 21AP-353 24
decedent’s extremities while in the hospital in an unconscious and sedated state is no
indication of irreversibility of lack of movements or permanent loss of use of the extremity;
(c) Dr. McGriff has two etiologies of loss of use of the four extremities: loss of brain function,
and T4 vertebral fracture; (6) with regard to loss of use of hearing, Dr. Borrillo did not take
a stand, discuss, or offer an opinion regarding loss of hearing, yet in Dr. McGriff’s August
19, 2020, report, Dr. McGriff states he concurs with Dr. Borrillo’s decision; (7) contrary to
Dr. McGriff’s opinion, Dr. Mareska believed that decedent’s being sedated is an important
factor to consider because an unconscious state can subdue responses to a variety of
stimuli; he found no evidence of a physical neurological examination focused on testing
hearing; he found no electrodiagnostic testing such as brainstem auditory evoked response
potentials performed to assess hearing; only one clinical visit on April 5, 2019, documents
decedent is not following commands, and this is elicited while decedent is on an ongoing
IV of Propofol and Fentanyl, respectively a powerful sedative and powerful pain killer;
decedent was never tested for hearing loss in a valid clinical manner; testing while decedent
is sedated did not give a reliable result of decedent’s baseline capabilities; and (8) the
history, physical examination findings, laboratory studies of CT scans, hospital course, and
subjective and/or objective evidence is insufficient to support the conclusion that there is a
total and permanent hearing loss.
{¶ 56} With regard to Dr. Borrillo’s conclusion that decedent had bilateral shattered
orbits, Dr. Mareska opined the following: (1) Dr. Mareska did not find the term “shattered”
applied to the orbits by the interpreting radiologist or any of the clinicians; (2) the ocular
globe and the optic nerve were not found or described as being “shattered,” contrary to Dr.
Borrillo’s finding; (3) Dr. Borrillo’s finding that the visual apparatus was permanently
injured is without evidence; (4) if decedent had survived the injuries, the evidence is
insufficient to support the position that shattering of the bilateral orbital bones themselves
would have caused permanent loss of vision; (5) the orbits serve no function regarding
vision itself, and breaking the bones does not affect vision per se; (6) the CT scan shows the
globes and optic nerves to be intact and not impacted by the bony fragments; (7) the
ophthalmologist could not assess vision because of decedent’s condition; (8) there was no
subjective history of loss of vision due to the injury and no clinical physical examination
finding impairment or loss of vision; (9) the absence of evidence of vision loss is not
evidence of absent vision; and (10) the subjective and/or objective evidence in the file is
No. 21AP-353 25
insufficient to support the contention that the injured worker had loss of use of vision of
any kind at any time or that it was permanent in nature.
{¶ 57} With regard to whether decedent would have sustained a permanent loss of
purposeful movement of his extremities due to the T4 fracture indicated in Dr. Borrillo’s
March 2, 2020, report, Dr. Mareska opined the following: (1) although Dr. Borrillo found
that decedent suffered a permanent spinal injury and had no purposeful movements while
hospitalized, Dr. Borrillo does not connect the two or state a causal relationship, and even
if there was a T4 injury, the upper extremities would be spared and not affected in any way;
(2) there is no record that decedent had subjective complaints of inability to move his arms
and legs; (3) a T4 injury that would be responsible for a permanent loss of use of the legs
would also prevent the spontaneous, non-purposeful movements that were observed and
documented; (4) no physical examination for muscle tone or movements was done while
decedent was not sedated or unconscious, and any lack of movement during the
hospitalization cannot be construed as a total and permanent loss of function of the
extremities; (5) there is no report of any bone, pressure, swelling, or bruising pressing upon
or impacting the spinal cord at the T4 level, and there is no evidence of a spinal cord injury
to any degree; (6) decedent cannot have sustained a permanent loss of purposeful
movement of his four extremities due to the relatively minor bone T4 fracture at the
anterior portion of the end plate that is away from the spinal cord; and (7) Dr. Borrillo never
states the T4 fracture caused a spinal injury.
{¶ 58} 14. On March 11, 2021, the commission granted claimant’s request for
reconsideration. On April 14, 2021, the commission issued an order, in which it found the
following: (1) claimant’s request for a scheduled loss award for total loss of use of both arms
and legs, loss of vision in both eyes, and loss of hearing in both ears is denied;
(2) Dr. McGriff’s August 19, 2020, report is not reliable because, as a non-examining
physician, he did not expressly accept the findings of the examining physicians on file;
(3) the March 2, 2020, report of Dr. Borrillo may be considered; (4) the April 26, 2020, and
March 8, 2021, reports of Dr. Mareska are reliable medical evidence, because a reviewing
physician is not required to blindly accept medical findings on file that the physician
identifies as inconsistent if the physician provides an explanation for the opinion; and (5)
Dr. Mareska’s reports support a finding that decedent did not sustain the loss of use of both
No. 21AP-353 26
arms and legs, the loss of vision in both eyes, or the loss of hearing in both ears as a result
of the injury in the claim.
{¶ 59} 15. On July 19, 2021, claimant filed a complaint for writ of mandamus
requesting that this court order the commission to vacate its order that denied payment for
loss of use of both arms and legs, loss of vision in both eyes, and loss of hearing in both ears,
pursuant to R.C. 4123.57(B), and to enter an order granting such compensation.
Conclusions of Law and Discussion:
{¶ 60} The magistrate recommends that this court grant a limited writ of
mandamus.
{¶ 61} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of law.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 62} A clear legal right to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order that 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).
{¶ 63} R.C. 4123.57(B) authorizes scheduled compensation to a claimant for the
total loss of a body part, such as the total loss of an arm, leg, ear, or eye. “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, ¶ 13.
An injured worker claiming loss of use under R.C. 4123.57(B) bears the burden of showing
that the loss of use is complete and permanent. State ex rel. Carter v. Indus. Comm., 10th
Dist. No. 09AP-30, 2009-Ohio-5547.
No. 21AP-353 27
{¶ 64} “It is undisputed that a physician conducting a file review must accept all the
allowed conditions as well as the objective findings of the examining physician.” State ex
rel. Caldwell v. New Boston Coke Corp., 10th Dist. No. 10AP-1068, 2011-Ohio-6053, ¶ 4,
citing State ex rel. Lampkins v. Dayton Malleable, Inc., 45 Ohio St.3d 14 (1989). If a doctor
who conducts a file review accepts the findings of the reviewing physicians, the reviewing
doctor’s report can constitute “some evidence.” State ex rel. Boyer v. Indus. Comm., 10th
Dist. No. 05AP-107, 2005-Ohio-6100, ¶ 21, citing Wallace. See also Lampkins at ¶ 16
(relaxing the express acceptance requirement in Wallace and permitting reliance on a non-
examining physician’s report where the report impliedly accepted the findings of the
examining physicians). However, under the so-called Wallace rule, the non-examining
physician is not required to accept the opinions drawn from the examining physician’s
findings. State ex rel. Consolidation Coal Co. v. Indus. Comm., 78 Ohio St.3d 176, 179
(1997). As the court explained in Wallace, when a non-examining physician renders an
opinion, it is considered to be a response to a hypothetical question. Id. at 59 (finding that
“[a]pplying the analogy to a hypothetical question, it follows that the non-examining
physician is required to expressly accept all the findings of the examining physicians, but
not the opinion drawn therefrom”).
{¶ 65} In the present case, claimant’s arguments can be generally grouped into the
following five contentions. First, with regard to claimant’s argument that Dr. Mareska’s
report was unreliable, claimant argues the following: (1) Dr. Mareska’s report failed to
comply with Wallace, because he rejected and ignored objective findings of examining
physicians within the medical record; (2) although Dr. Mareska initially asserted he would
accept the allowed conditions in the claim, as well as the findings of the examining
physicians, he rejected the objective autopsy findings–not merely the opinions–for
numerous reasons; (3) as to decedent’s significant brain injuries, Dr. Mareska dismissed
the findings of the examining physician, stating that the autopsy findings involving the
cerebral hemisphere seemed incongruent; (4) Dr. Mareska relied on the repeated presence
of observed and documented spontaneous movements and discounted the clinical
evaluations of arm and leg motor movements because examinations were done with
sedatives and narcotics being used; (5) Dr. Mareska ignored his own observations that
sedation had been stopped for a significant period, and he rejected the examining
No. 21AP-353 28
physician’s clinical finding that such movements were minimal and not purposeful; (6) Dr.
Mareska failed to acknowledge the findings of the emergency-room staff, who noted that
decedent arrived without neuromuscular blockade, he was generally capable of
withdrawing from pain, and movements of his left upper extremity were not purposeful;
and (7) in his addendum, while Dr. Mareska purported to accept the allowed condition in
his claim, as well as the findings of the examining physicians, he provided detailed
explanations for why he disagreed with the objective findings of the coroner, including: (a)
Dr. Mareska claimed there was no radiographic report of the cord at the T4 being damaged
despite the fact that the radiological report documented a paraspinal hematoma adjacent
to the T4 fracture; and (b) Dr. Mareska rejected the importance of the clinical observation
of a lack of purposeful movement due to the ongoing combination of Propofol and Fentanyl,
despite having earlier observed that Propofol was stopped for several hours.
{¶ 66} Second, claimant argues the commission wrongly rejected Dr. McGriff’s
report, asserting as follows: (1) the commission misapplied Wallace and its progeny by
rejecting Dr. McGriff’s report; (2) it is false that Dr. McGriff did not expressly accept the
findings of the examining physicians in the file and, in fact, he reviewed the report of
autopsy and explicitly accepted the findings as correct; and (3) Dr. McGriff specifically
stated his report was based upon the history provided by the other examiners, findings on
the examination, and the information contained in the medical records, and he assumed
that the material provided is correct.
{¶ 67} Third, claimant argues that the commission should have rejected
Dr. Mareska’s report because it was internally inconsistent, in that Dr. Mareska claimed to
accept the clinical note that Propofol sedation had been withdrawn for a number of hours,
yet he ignored this fact to erroneously conclude to the contrary that decedent’s lack of
movements was solely the result of unceasing sedation.
{¶ 68} Fourth, claimant argues that the commission abused its discretion by relying
upon Dr. Mareska’s report because Dr. Mareska inferred from decedent’s spontaneous,
minimal, and non-purposeful movements that he had not lost the use of his extremities for
all practical intents and purposes, contrary to the rule in State ex rel. Alcoa Bldg. Prods. v.
Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, which found that there can still be a
loss of use for all practical purposes even if the limb retained some residual utility, and
No. 21AP-353 29
residual hypersensitivity, pain, and tenderness of a limb was enough to establish loss of use.
In this case, claimant asserts, the residual capacity of decedent’s limbs to move
spontaneously is insufficient under Alcoa to establish that there remains functional use.
{¶ 69} Fifth, claimant argues that the commission abused its discretion when it
relied on Dr. Mareska’s report because he contrived a consciousness test and injected a
prohibited duration-0f-survival requirement contrary to State ex rel. Moorehead, 112 Ohio
St.3d 27, 2006-Ohio-6364, which held that R.C. 4123.57(B) does not specify a required
length of time of survival after a loss-of-use injury. Claimant contends that Dr. Mareska
violated Moorehead when he found that there could be no loss of use because decedent was
unconscious due to sedation and narcotics and was unaware of his arms and legs or a desire
to do anything with them. Claimant asserts that loss of use is the only requirement, and
decedent’s awareness of his loss of use is irrelevant. Furthermore, claimant argues, Dr.
Mareska engrafted an unlawful duration-of-survival requirement onto R.C. 4123.57(B)
when he found that the clinical assessment of decedent’s brain injuries occurred during the
brief period of survival, and those exams were unreliable to demonstrate loss of use due to
sedation, paralytics, and narcotics. Claimant asserts that decedent was not required to live
long enough for any testing to take place.
{¶ 70} With regard to claimant’s first argument, the magistrate agrees with claimant
that Dr. Mareska’s reports conflict with the holding in Wallace. Specifically, Dr. Mareska
did not accept the objective findings of one of the examining physicians, the coroner, in the
autopsy report and case summary. In his April 26, 2020, report, Dr. Mareska found the
autopsy findings as to the cerebral hemisphere seemed inconsistent and/or incongruent
both internally and externally. In his March 8, 2021, addendum report, Dr. Mareska found
that the CT scan of the brain showed damage that was not reported in the autopsy report;
the CT scan showed no evidence of conditions that were reported in the autopsy; the
autopsy failed to show conditions that would be expected; the autopsy revealed conditions
that were not supported by the clinical correlations or CT scan findings; and the autopsy
showed normal conditions that were inconsistent with the clinical information or on the
examination reported in the evidence-of-injury section of the autopsy. Although the
commission attempts to characterize Dr. Mareska’s disagreement with these findings in the
autopsy report as a disagreement of opinion in an attempt to fit within the holding of
No. 21AP-353 30
Wallace, Dr. Mareska is clearly disagreeing with the coroner’s findings and not the opinions
drawn therefrom. The coroner conducted her examination and reported what she found
upon examination. The physical examination revealed a large left ventricle, normal cortex,
a longitudinal laceration and large intraparenchymal hemorrhage, and normal width and
thickness of the bilateral hemispheres. Objective findings include, among other things, x-
rays, bone scans, objective abnormalities of the body based upon physical examination,
measurements of body parts, physical tests, mechanical tests, and clinical signs that can be
confirmed or corroborated. See, e.g., State ex rel. Kish v. Kroger Co., 10th Dist. No. 10AP-
882, 2011-Ohio-5766. Here, the coroner’s observation of a large left ventricle, normal
cortex, longitudinal laceration and large intraparenchymal hemorrhage, and normal width
and thickness of the bilateral hemispheres, are objective abnormalities and measurements
of the body based upon the coroner’s physical examination, and can all be confirmed or
corroborated. They are not subjective opinions based upon objective findings. Instead, they
are objective findings themselves. Therefore, Dr. Mareska was required to accept these
objective findings of the coroner. He did not do so, in violation of Wallace.
{¶ 71} In its April 14, 2021, order, in addressing Wallace as it relates to
Dr. Mareska’s refusal to accept some of the autopsy findings because they were
incongruent, inconsistent, inaccurate, and unreliable, the commission found, “the Wallace
decision does not require a reviewing physician to blindly accept medical findings on file
which the physician identifies as inconsistent, if the physician provides an explanation for
that opinion.” The magistrate can find no authority for this proposition. Indeed, the
decision in Wallace requires a reviewing physician to accept the objective medical findings.
Wallace does not imply any exception for inconsistent objective findings or an allowance
for rejection of objective findings as long as the reviewing physician provides an
explanation, and the magistrate can find no cases declaring or applying such an exception
to Wallace. As this court explained in Caldwell, “[i]t is undisputed that a physician
conducting a file review must accept all * * * [of] the objective findings of the examining
physician.” Id. at appendix. See also Wallace at 59 (“the non-examining physician is
required to expressly accept all the findings of the examining physicians[.]”).
{¶ 72} Therefore, the magistrate finds that Dr. Mareska’s April 26, 2020, report and
March 8, 2021, addendum report cannot constitute some evidence, as Dr. Mareska did not
No. 21AP-353 31
comply with Wallace. The commission’s reliance upon Dr. Mareska’s reports was pervasive
throughout the commission’s decision, and the commission relied solely upon Dr.
Mareska’s reports in denying compensation for loss of use of both arms and legs, loss of
vision in both eyes, and loss of hearing in both ears. Because Dr. Mareska’s reports must be
removed from consideration, the matter must be returned to the commission for a
redetermination of claimant’s request for compensation.
{¶ 73} Accordingly, the magistrate recommends that this court grant a limited writ
of mandamus directing the commission to vacate its April 14, 2021, order and issue an order
determining, consistent with law and this decision, whether claimant has established a loss
of use of both arms and legs, loss of vision in both eyes, and loss of hearing in both ears,
pursuant to R.C. 4123.57(B), with regard to decedent, and to enter an order granting or
denying compensation for such.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
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).