State ex rel. Polyone Corp. v. Indus. Comm.

[Cite as State ex rel. Polyone Corp. v. Indus. Comm., 2014-Ohio-1376.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. PolyOne Corporation, :
Relator, :
v. : No. 12AP-313
The Industrial Commission of Ohio : (REGULAR CALENDAR)
and Glenn R. Evans/Twyla Evans,
:
Respondents.
:
D E C I S I O N
Rendered on March 31, 2014
Reminger Co., L.P.A., Martin T. Galvin, and Marianne
Barsoum Stockett, for relator.
Michael DeWine, Attorney General, and Colleen C. Erdman,
for respondent The Industrial Commission of Ohio.
Wincek & DeRosa Co., LPA, Joseph C. DeRosa, and Daryl
Gagliardi, for respondent Twyla Evans.
Vorys, Sater, Seymour and Pease LLP, and Robert A. Minor,
Amicus Curiae Ohio Self-Insurers Association.
Philip J. Fulton Law Office, Philip J. Fulton, and Chelsea J.
Fulton, Amicus Curiae Ohio Association of Claimants'
Council.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
No. 12AP-313 2
BROWN, J.
{¶ 1} In this original action, relator, PolyOne Corporation, seeks a writ of
mandamus from this court ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order awarding respondent, Twyla Evans ("respondent"),
the surviving spouse of Glenn R. Evans ("decedent"), scheduled loss compensation for
decedent's loss of use of both arms and legs, and to enter an order denying said
compensation.
{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate who issued the appended decision,
including findings of fact and conclusions of law, recommending that this court deny
relator's request for a writ of mandamus. The magistrate determined there was some
medical evidence to support the commission's finding that decedent's loss of use of his
four extremities was permanent rather than temporary, and that there was some medical
evidence upon which the commission relied showing that the allowed condition,
angiosarcoma, independently caused the permanent loss of decedent's four extremities.
{¶ 3} Relator has filed objections to the magistrate's decision, arguing that R.C.
4123.57(B) does not authorize the benefits sought in this case. Relator contends that the
language of that statute does not support an award for partial disability compensation for
the loss of use of decedent's arms and legs while in a coma for a short period of time
preceding his death; relator maintains that the decedent's failure to survive his comatose
condition does not mean his loss of use of limbs was permanent. In support, relator relies
upon this court's decision in State ex rel. Carter v. Indus. Comm., 10th Dist. No. 09AP-
30, 2009-Ohio-5547.
{¶ 4} In Carter, a worker suffered a gunshot wound while employed as a
nightclub bouncer, and doctors amputated his right leg. Medical complications
developed, and medical personnel sedated and chemically paralyzed the patient as part of
the course of treatment, but he died while in the hospital. The relators (his dependents)
subsequently filed a claim for scheduled loss compensation for the loss of use of his upper
and lower extremities, arguing that the induced paralysis caused a loss of use which
became permanent upon his death. The commission awarded loss of use compensation
for his amputated right leg, but denied loss of use compensation for his upper extremities
No. 12AP-313 3
and left leg. In Carter, the magistrate concluded that the chemically induced paralysis to
the employee's left leg and upper extremities was not permanent and, therefore, found no
abuse of discretion by the commission. The relators filed objections to the magistrate's
decision. In Carter, this court overruled the relator's objections, holding in part that the
evidence indicated that the "decedent's induced paralysis was a temporary measure
designed to aid in his recovery," and that there was "no evidence that, but for decedent's
death, the paralysis would have been permanent." Id. at ¶ 5.
{¶ 5} In the present case, the magistrate analyzed the decision in Carter, and
found relator's reliance upon that case to be misplaced. Specifically, the magistrate noted
that, unlike the injured worker in Carter, decedent's loss of use was not chemically
induced or therapeutic, but, rather, the "natural consequence of his angiosarcoma." Thus,
in contrast to the temporary paralysis of the employee in Carter, decedent's loss of use
was permanent because it was expected to last, and did last, until his death. We agree
with the magistrate that the decision in Carter is distinguishable and does not preclude an
award of benefits under R.C. 4123.57(B).
{¶ 6} Relator's objections also challenge the award under R.C. 4123.57(B) on the
grounds that (1) decedent was comatose immediately prior to death and, therefore,
unaware of his injury, and that (2) his "purported loss of use" only occurred over a course
of a few days. We conclude, however, that the magistrate did not err in finding that the
staff hearing officer properly applied the Supreme Court of Ohio's holding in State ex rel.
Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364. In Moorehead, an
employee fell 15 to 20 feet onto a concrete floor and suffered a severe spinal cord injury;
he lived for approximately 90 minutes, but never regained consciousness and was never
aware that he had been rendered a quadriplegic. The commission denied the widow's
application for loss of use benefits, but the Supreme Court subsequently allowed the writ
and remanded for a determination of benefits, holding in part that "R.C. 4123.57(B) does
not specify a required length of time of survival after a loss-of-use injury before benefits
pursuant to R.C. 4123.57(B) are payable." Id. at ¶ 14. The Supreme Court also made clear
"there is no language in R.C. 4123.57(B) requiring that an injured worker be consciously
aware of his paralysis in order to qualify for scheduled loss benefits." Id. at ¶ 16.
Accordingly, the commission did not abuse its discretion in applying Moorehead to find
No. 12AP-313 4
that R.C. 4123.57 does not require an injured worker to be cognizant of his loss of use, nor
does that decision support relator's duration of survival argument.1
{¶ 7} Relator challenges the medical evidence in the record, and points to the
opinion of its medical expert Dr. Joseph Buell. The magistrate, however, found relator's
reference to Dr. Buell's report "problematic" in light of the fact the commission did not
rely upon it, and that such report was directly contradicted by the reports of Drs. Matthew
Levy and Kevin Trangle. The magistrate further noted that the reports of Drs. Levy and
Trangle "could not be clearer" that the allowed condition, angiosarcoma, independently
caused the loss of use of all four extremities. The magistrate adequately addressed the
medical evidence, and for the reasons set forth, relator's objection as to that issue is not
persuasive.
{¶ 8} Relator further contends the magistrate failed to consider the legislative
intent of R.C. 4123.57, arguing that the award for loss of use benefits in the instant case
essentially represents additional death benefits already provided for the surviving spouse
under R.C. 4123.59. More specifically, relator maintains that benefits under R.C.
4123.57(B) are only intended to compensate for an injured worker's presumed loss of
earning capacity.
{¶ 9} Relator's contention that an award for loss of use benefits under R.C.
4123.57(B) is duplicative of a death benefit award under R.C. 4123.59 is unpersuasive. It
has been noted that the intent of R.C. 4123.59 is to compensate dependents for the "loss of
support" resulting from the employee's death. Fulton, Ohio Workers Compensation
Section 11.3 at 531 (4th Ed.2011). By contrast, "benefits for partial disability are more
akin to damages for work-related injuries." State ex rel. Gen. Motors Corp. v. Indus.
Comm., 42 Ohio St.2d 278, 282 (1975). See also State ex rel. Miller v. Indus. Comm., 97
Ohio St.3d 418, 2002-Ohio-6664, ¶ 12 ("partial disability benefits have been compared to
damages and are awarded irrespective of work capacity"); State ex rel. Dudley v. Indus.
Comm., 135 Ohio St. 121, 125 (1939) (noting scheduled compensation for loss of the sight
1 We note that relator has filed, as supplemental authority, a recent decision by the Supreme Court, State ex
rel. Smith v. Indus. Comm., ___ Ohio St. ___, 2014-Ohio-513. Smith, however, involves scheduled loss
benefits for loss of sight and hearing, rather than loss of use of extremities, and the Smith court does not
discuss (or overrule) its decision in Moorehead.
No. 12AP-313 5
of an eye is "arbitrarily fixed, and has nothing whatever to do with impairment of earning
capacity").
{¶ 10} Relator also asserts that the award was impermissible under Ohio
Adm.Code 4123-3-15(C)(4), arguing that a surviving spouse is only entitled to
compensation if the award was made prior to the death of the injured worker. We
disagree.
{¶ 11} Ohio Adm.Code 4123-3-15(C)(4) states in relevant part: "Where an award
under division (B) of section 4123.57 of the Revised Code has been ordered but not paid
prior to the death of an employee, upon application, the award is payable to the surviving
spouse." While this administrative code provision addresses an award ordered "prior to
the death of an employee," it does not address (nor does it preclude) an application made
by a dependent after the death of an employee. R.C. 4123.60, however, states in part:
If the decedent would have been lawfully entitled to have
applied for an award at the time of his death the administrator
may, after satisfactory proof to warrant an award and
payment, award and pay an amount, not exceeding the
compensation which the decedent might have received, but
for his death, for the period prior to the date of his death, to
such of the dependents of the decedent, or for services
rendered on account of the last illness or death of such
decedent, as the administrator determines in accordance with
the circumstances in each such case.
{¶ 12} Here, as noted by the commission, because decedent would have been
entitled to have applied for a scheduled loss award at the time of his death, his surviving
spouse was entitled to apply for benefits to which he was entitled.2 Thus, relator's
objection asserting that Ohio Adm.Code 4123-3-15(C)(4) precludes the surviving spouse
from recovering benefits in the instant case is not well-taken.
2 We note that amicus curiae, Ohio Self-Insurer's Association, argues that respondent (surviving spouse)
should only be granted loss of use benefits for the period during which decedent experienced loss of use
while alive, i.e., the four days prior to his death. The parties, however, did not raise that argument before
either the commission or magistrate. See Lakewood v. State Emp. Relations Bd., 66 Ohio App.3d 387, 394
(8th Dist.1990) ("Amici curiae are not parties to an action and may not, therefore, interject issues * * * not
raised by parties"). (Emphasis sic.) In any event, such issue would not appear ripe for review. The
commission itself maintains it did not mandate the payment of 850 weeks of scheduled loss payments,
noting the order of the staff hearing officer indicates: "[p]ayment to be made and processed per statute" (i.e.,
including the terms of R.C. 4123.60).
No. 12AP-313 6
{¶ 13} Based upon this court's independent review, we overrule relator's objections
and adopt the magistrate's findings of fact and conclusions of law. In accordance with the
magistrate's decision, we deny the requested writ of mandamus.
Objections overruled; writ of mandamus denied.
CONNOR and DORRIAN, JJ., concur.
___________________
[Cite as State ex rel. Polyone Corp. v. Indus. Comm., 2014-Ohio-1376.]
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. PolyOne Corporation, :
Relator, :
v. : No. 12AP-313
The Industrial Commission of Ohio : (REGULAR CALENDAR)
and Glenn R. Evans/Twyla Evans,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on April 5, 2013
Reminger Co., L.P.A., Martin T. Galvin and Marianne
Barsoum Stockett, for relator.
Michael DeWine, Attorney General, and Colleen C. Erdman,
for respondent The Industrial Commission of Ohio.
Wincek & DeRosa Co., LPA, Joseph C. DeRosa and Daryl
Gagliardi, for respondent Glenn R. Evans/Twyla Evans.
IN MANDAMUS
{¶ 14} In this original action, relator, PolyOne Corporation ("relator" or
"PolyOne") requests a writ of mandamus ordering respondent Industrial Commission of
Ohio ("commission") to vacate its order awarding to respondent Twyla Evans, the
surviving spouse of Glenn R. Evans ("Evans" or "decedent"), R.C. 4123.57(B) scheduled
No. 12AP-313 2
loss compensation for decedent's loss of use of both arms and legs, and to enter an order
denying the compensation.
Findings of Fact:
{¶ 15} 1. Until his retirement in 1994, Evans was employed for many years as a
laborer by PolyOne or its predecessor. During his employment, Evans was exposed to
vinyl chloride.
{¶ 16} 2. In July 2010, Evans underwent a CT of his chest and mediastinum. He
later underwent an MRI. Following a CT-guided biopsy of the liver, Evans was
diagnosed with hepatic angiosarcoma. Chemotherapy treatment began in early August
2010. Vinyl chloride exposure is widely known to cause hepatic angiosarcoma.
{¶ 17} 3. In October 2010, Evans filed a workers' compensation claim on a form
captioned "First Report of an Injury, Occupational Disease or Death" ("FROI-1"). On
the form, Evans alleged an "[o]ccupational exposure to vinyl chloride resulting in
angiosarcoma of the liver." August 5, 2010 was listed as the injury date.
{¶ 18} 4. In late October 2010, PolyOne, a self-insured employer, certified the
industrial claim (No. 10-848253) for "angiosarcoma."
{¶ 19} 5. The commission officially recognizes the claim for "angiosarcoma." The
commission recognizes the injury date as August 5, 2010, which apparently
approximates the date of diagnosis.
{¶ 20} 6. On July 8, 2011, Evans died. On the certificate of death, "angiosarcoma
liver" is given as the cause of death. The death certificate was completed and certified by
attending physician Poornanand Palaparty, M.D.
{¶ 21} 7. Earlier, on July 4, 2011, Evans was examined at his home in the
presence of his wife, daughter, and counsel, by orthopedic surgeon Matthew E. Levy,
M.D.
{¶ 22} 8. On July 5, 2011, Dr. Levy wrote:
I performed an examination of patient Glenn Evans last
night in regards to his diagnosis of angiosarcoma. I found
that as of 11:15 p.m. 07/04/2011, he had lost all use of both
arms and both legs.
No. 12AP-313 3
{¶ 23} 9. On July 5, 2011, Evans moved for R.C. 4123.57(B) scheduled loss
compensation for the alleged loss of use of both arms and legs. In support, Evans
submitted the July 5, 2011 report of Dr. Levy.
{¶ 24} 10. On August 12, 2011, a commission hearing officer mailed an ex-parte
order finding that Evans' industrial claim was abated by his death.
{¶ 25} 11. On August 17, 2011, Twyla Evans filed an R.C. 4123.59 death claim on
the FROI-1 form.
{¶ 26} 12. Following a November 21, 2011 hearing, a district hearing officer
("DHO") issued an order allowing the death claim.
{¶ 27} 13. Relator administratively appealed the DHO's order of November 21,
2011 allowing the death claim.
{¶ 28} 14. Following a January 20, 2012 hearing, a staff hearing officer ("SHO")
issued an order allowing the death claim, but modifying the DHO's order of
November 21, 2011. The SHO's order of January 20, 2012 provides in part:
It is found that the decedent's spouse, Twyla Evans, born on
01/16/1936, was wholly dependent upon the decedent for
support at the time of death, and that she is entitled to
weekly benefits in the amount of $748.53.
{¶ 29} 15. The record fails to disclose whether the January 20, 2012 order of the
SHO allowing the death claim was administratively appealed. Presumably, Twyla Evans
is currently receiving weekly benefits under R.C. 4123.59 as a surviving spouse who was
wholly dependent upon decedent at the time of his death.
{¶ 30} 16. Earlier, on July 27, 2011, Dr. Levy issued a seven-page narrative report
based in part on his July 4, 2011 examination of Evans at his home. In his report, Dr.
Levy states:
Mr. Evans is being evaluated in conjunction with his
development of angiosarcoma, his current status and for
determination of loss of use of certain appendages and
faculties.
***
No. 12AP-313 4
CURRENT COMPLAINTS
I was called to evaluate Mr. Evans in his home on
07/04/2011 at 2315 hours. Mr. Evans was evaluated in the
presence of his wife, his daughter and counsel, Mr. Joseph
DeRosa. At the time of evaluation, Mr. Evans was unable to
provide me with any history.
The history was provided by his wife and daughter who note
that his condition has taken a precipitous turn for the worst
today. He was unable to get out of bed, unable to feed
himself, and unable to even participate in his own care and
hygiene. He was noted to be moaning in discomfort
throughout the entirety of my evaluation.
The remainder of the history was gleaned from the medical
records.
PHYSICAL EXAMINATION:
On the physical evaluation, Mr. Evans was found to be in an
obtunded state. He was minimally arousable and he had
rattling respirations. He had a very limited response even to
noxious stimuli. His color was poor[.]
Examination of his upper and lower extremities revealed
pitting edema within the lower extremities, pale coloration
throughout the extremities, no volitional movement and
minimal withdrawal even to noxious stimuli.
I was able to document full passive range of motion in both
shoulders, elbows, wrists and fingers in the upper
extremities; and hips, knees, ankles and toes in the lower
extremities. However, he exhibited no tone in any of the
above-mentioned extremities.
Reflexes were symmetrically diminished in both upper and
lower extremities. Pathologic reflexes such as Babinski's and
Hoffman signs were not observed.
There was no obvious response of the individual to speech, to
noises or to the environment from an auditory perspective.
Similarly, he did not open his eyes, show any meaningful
visual interaction with his environment, track movements or
for all intents and purposes, show that he had any vision
perception of his surroundings.
No. 12AP-313 5
ASSESSMENT:
Based upon review of the history and physical examination,
medical records and all enclosed documentation, the
following opinions are offered with a reasonable degree of
medical certainty.
***
Diagnoses include:
a) Dependent edema;
b) Angiosarcoma;
c) Fatigue;
d) Leg weakness;
e) Elevated liver function tests;
f) Anemia;
g) Gastroesophageal reflux disease;
h) Malnutrition;
i) Status post congestive heart failure;
j) Hearing loss;
k) Cardiac mumur;
l) Loss of use of all four extremities;
m) Loss of vision;
n) Loss of hearing
At the time that he was evaluated, Mr. Glenn Evans was a 74-
year-old gentleman with a diagnosis of angiosarcoma of the
liver, a result of an occupational environmental exposure
sustained in the course of his employment. The diagnosis of
angiosarcoma was confirmed through the pathology
department at Cedar Sinai Medical Center in October 2010
by Steven Geller. Before I had evaluated him, Mr. Evans was
found also to have a medical history of congestive heart
failure, hypertension, reflux and anorexia, among his other
conditions.
I was called to evaluate Mr. Evans in his home on
07/04/2011 at 2315 hours. Mr. Evans was evaluated in the
presence of his wife, his daughter and counsel, Mr. Joseph
DeRosa. At the time of evaluation, Mr. Evans was unable to
provide me with any history.
Coma is defined as a profound state of deep
unconsciousness. It affects any individual's ability to interact
with the surrounding environment. In this particular case it
No. 12AP-313 6
is the direct sequelae of the obfundation and deep
unconsciousness caused by his progress fatal cancer. The
cancer caused a cascade of events leading to metabolic
derangement, lack of oxygenation and in general lack of the
necessary physiologic mechanisms sufficient to sustain
conscious awareness and bodily function.
It is academic where one draws the line in terms of what sort
of responses a patient has to certain stimuli. Mr. Evans was
not noted to have any voluntary responses. In fact, he was
incapable of any response at all to his surrounding
environment. Except for the rare response to noxious
stimuli, he was not interactive with his environment.
The patient does have permanent loss of use of various body
parts as statutorily determined. Mr. Evans had no functional,
meaningful or volitional use of either of his arms or legs. All
four limbs can be considered to have no functional use. For
actual practical purposes he has permanently lost the use
through the central nervous system dysfunction he has of
any extremity movement or activity.
Similarly, at the point in time I saw him, his eyes remain
closed. He did not respond to stimuli. He did not track or
follow and had for all intents and purposes no intentional
volitional vision use. This would apply to bilateral use of both
eyes.
In regards to his hearing, there was no response to hearing
or noise. He did not respond to commands. It was entirely
conjectural if there was even any brain stem auditory
response that was functioning. There was no conscious level
of hearing, interpretation of sound or even a human
response to noise stimuli.
SUMMARY:
Mr. Evans, at the time I saw him, suffered from the
permanent conditions of loss of use of the following:
[One] Right and left arms;
[Two] Right and left legs;
[Three] Vision comprehension in right and left eyes;
[Four] Hearing comprehension in both the right and left
ears.
No. 12AP-313 7
{¶ 31} 17. On July 28, 2011, Twyla Evans, as surviving spouse, moved for R.C.
4123.57(B) scheduled loss compensation for decedent's alleged loss of use of both arms
and legs, vision and hearing. In support, Twyla Evans submitted her marriage certificate,
the death certificate, and the July 27, 2011 report of Dr. Levy.
{¶ 32} 18. Following a September 27, 2011 hearing, a DHO issued an order
denying the July 28, 2011 motion of Twyla Evans. The DHO's order explains:
Prior to a hearing on the merits, the surviving spouse's
counsel withdrew the request for the SCHEDULED LOSS OF
VISION COMPREHENSION IN BOTH EYES and
SCHEDULE[D] LOSS OF HEARING COMPREHENSION IN
BOTH EARS. Therefore, these requests are DISMISSED.
On 07/08/2011, the decedent, Glenn Evans, died. Four days
prior [to] his death, on 07/04/2011, the decedent lost
consciousness and could no longer move his legs or arms.
The surviving spouse is requesting the loss of use of both
arms and both legs due to his drastic change in health on
07/04/2011. The report of Dr. Levy dated 07/27/2011 is
presented in support of this request.
The District Hearing Officer finds that the medical evidence
is insufficient to support the requested loss of use as being
related to the allowed condition of ANGIOSARCOMA. Dr.
Levy's own report lists the following diagnoses from his
07/04/2011 examination: Dependent edema, Angiosarcoma,
fatigue, leg weakness, elevated liver function tests, anemia,
gastroesophageal reflux disease, malnutrition, status post
congestive heart failure, hearing loss, cardiac murmur, loss
of use of all four extremities, and loss of vision. Dr. Levy
went on to indicate that the Injured Worker was in a coma,
and noted that the Injured Worker had a medical history of
congestive heart failure, hypertension reflux and anorexia.
Dr. Levy does not sufficiently explain how the allowed
condition of angiosarcoma directly caused the damage to the
central nervous system that would then cause the loss of use
of all four extremities, especially in light of other conditions
the Injured Worker had. For these reasons, the District
Hearing Officer finds that the surviving spouse has not met
the requisite proof necessary to support a finding of a loss of
use of the requested four extremities.
No. 12AP-313 8
The District Hearing Officer has reviewed and considered all
evidence prior to rendering this decision.
(Emphasis sic.)
{¶ 33} 19. Twyla Evans administratively appealed the DHO's order of
September 27, 2011.
{¶ 34} 20. On November 3, 2011, at the request of counsel for Twyla Evans,
Kevin L. Trangle, M.D., issued a seven-page narrative report. Dr. Trangle wrote:
DISCUSSION OF VINYL CHLORIDE-INDUCED HEPATIC
ANGIOSARCOMA:
Hepatic angiosarcoma (HAS) is an uncommon mesenchymal
malignant neoplasm of the vascular or lymphatic
endothelium, accounting for 2% of all soft tissue sarcomas.
Angiosarcoma can affect any organ. Although primary HAS
is rare and accounts for only 2% of primary hepatic tumors,
it is the most common malignant mesenchymal tumor of the
liver.
Popper and colleagues, and Gedigt et al. have undoubtedly
provided the greatest contribution in the study of the
histogenesis and pathohistology of HAS. Vinyl chloride
monomers (VCM) are transformed by hepatic microsomal
enzymes to toxic metabolites that covalently bind to DNA.
After exposure to VCM, hepatocytic proliferation, sinusoidal
lining cell proliferation, and focal sinusoidal dilatation
occurs; this process leads to angiosarcoma from the
sinusoidal lining cells. In a typical histologic picture, there
are wide vascular spaces and systems of anastomosed vessel
canals lined with atypical endothelium, with marked
sarcomatous stroma. Mr. Evans clearly had developed HAS
secondary to his work related exposure to Vinyl Chloride.
HAS progresses rapidly; therefore, most cases are discovered
at an advanced stage, and less than 20% of the patients can
even be conceivably helped by surgery. The lack of specific
symptoms and radiological findings leads to the delay of
diagnosis resulting in the poor prognosis. Only a few patients
have been reported to survive for more than one year after
hepatic resection for HAS. HAS usually develops in the sixth
decade of life, and is more frequent in males than in females
(ratio 3:1). Mr. Evans had a classic presentation of a work
related HAS caused by VC exposure.
No. 12AP-313 9
The prognosis of HAS is dismal. Most patients die within six
months of the diagnosis. The most frequent causes of death
are hepatic failure and intraabdominal bleeding. Fifty
percent of patients develop metastases before death. Very
few patients have limited tumor at the time of diagnosis to
allow surgical resection.
Hepatic Failure (HF) as a Consequence of Hepatic
Angiosarcoma
The liver is commonly involved in metastatic disease, and the
degree of liver biochemistry derangement tends to reflect the
extent of parenchymal replacement with tumor. Hepatic
failure can develop as a consequence of primary or
metastatic liver tumors. The mechanism of liver failure is
multifactorial. Evidence suggests a combination of hepatic
ischemia leading to parenchymal infarction, vascular
occlusion of portal vein by tumor thrombi and non-occlusive
infarction of liver due to shock from secondary causes such
as sepsis or cardiac dysfunction plays an important role in
these patients. Typically, replacement of hepatocytes by
malignant cells leads to secondary necrosis of hepatocytes
with the subsequent development of liver failure.
Numerous authors have reported the development of HF in
patients with HAS. As noted above, this is usually the
terminal event associated with diffuse involvement of the
liver by the HAS.
One study conducted by Myszor et al. looked at the
association and presentation of malignant disease of the liver
with hepatic failure. The authors described three cases and
reviewed the best documented reports in the literature. Their
review of 25 patients showed that in most cases, the liver was
massively replaced by tumor that often spread in an
intrasinusoidal pattern and resulted in HF and subsequent
death.
Another study conducted by Dannaher et al. looked at 10
workers from a single vinyl chloride polymerization plant in
Louisville, Kentucky that developed HAS. Average survival
from diagnosis was about 12 months. Overt liver failure
occurred as a preterminal event and was the major cause of
death in all of the patients.
Baxter et al. studied 35 cases of HAS occurring in Great
Britain. The most common terminal event in these patients
No. 12AP-313 10
was liver failure and its attendant complications. The
duration of symptoms preceding admission to hospital was
known for over 30 cases. The median time was about five
weeks. The length of survival after admission was known for
all adults, the median time being three weeks. Only three
cases lived beyond six months after admission to hospital.
The two patients with the shortest duration of symptoms
died from hemoperitoneum.
In addition to the neoplasm itself, treatment with various
chemotherapeutic agents can contribute to further injury to
the liver. Gemcitabine represents one of these agents and it
has been shown to be hepatotoxic.
Hepatic Encephalopathy and Coma
Hepatic encephalopathy is defined as a spectrum of central
nervous system abnormalities in patients with liver
dysfunction, after exclusion of other known brain disease.
Hepatic encephalopathy is characterized by personality
changes, intellectual impairment, and a depressed level of
consciousness. The development of hepatic encephalopathy
is explained to a large extent by the effect of neurotoxic
substances which accumulate as a result of liver failure;
additionally brain edema plays a prominent role. The brain
edema of hepatic failure is attributed to increased
permeability of the blood-brain barrier, impaired
osmoregulation within the brain, and increased cerebral
blood flow. The resulting brain cell swelling and brain edema
cause loss of consciousness and eventually death.
Typically, patients subsequently become hypotensive and
tachycardic as a result of the reduced systemic vascular
resistance that accompanies hepatic failure, a pattern that is
indistinguishable from septic shock. The combination of
cerebral edema with resulting increased intracranial
pressure and systemic hypotension leads to coma and then
death.
Gastrointestinal bleeding can also contribute to the
development of hepatic encephalopathy. The presence of
blood in the upper gastrointestinal tract results in increased
ammonia and nitrogen absorption from the gut. Bleeding
may predispose to kidney hypoperfusion and impaired renal
function. These metabolic consequences lead to increased
toxic ammonium levels in the blood and even further
No. 12AP-313 11
depression of central nervous system function, loss of
consciousness and death.
ANALYSIS AND OPINION:
In the case at hand, Mr. Evans was diagnosed and treated for
vinyl chloride-induced hepatic angiosarcoma. He ultimately
died on 07/08/2011. His death certificate lists angiosarcoma
of the liver as his cause of death.
He was initially diagnosed with hepatic angiosarcoma by CT-
guided needle biopsy in July of 2010. He underwent
chemotherapy with Taxol, Sorafenib and gemcitabine. He
was admitted for liver failure following treatment with
gemcitabine. Dr. Palaparthy [sic] noted he had edema in
both legs, shortness of breath and icterus. He had elevated
liver enzymes including elevated bilirubin, ALT/AST and
alkaline phosphatase. His total protein and albumin were
significantly diminished and he had evidence of
pancytopenia. He experienced a typical side effect of
chemotherapy; namely toxic deterioration of liver function.
He subsequently had two episodes of intra-abdominal
hemorrhage requiring embolization of the hepatic artery and
blood transfusions.
His most recent abdominal CT demonstrated extensive
neoplastic infiltration of the liver with extracapsular spread
of disease and ascites. There was extensive free fluid noted
surrounding the liver, spleen and extending in the
mesenteric which was likely hemorrhagic.
He ultimately developed fulminant hepatic failure as a direct
result of the extensive neoplastic infiltration of his liver. The
repeated intraperitoneal hemorrhages and chemotherapy
also contributed to his encephalopathy. The hemorrhages
undoubtedly also led to increased blood ammonia levels. The
chemotherapeutic agents, particularly gemcitabine, caused
hepatic injury which contributed to the development of liver
failure.
The medical literature supports this as the most common
pre-terminal event in patients suffering from hepatic
angiosarcoma. The liver failure led to the development of
hepatic encephalopathy which progresses to hepatic coma
and death.
No. 12AP-313 12
While suffering from hepatic encephalopathy and profound
central nervous system depression and loss of consciousness,
he completely lost the ability to use his upper and lower
extremities as well as his ability to hear and see. This was a
direct result of a combination of the build-up of neurotoxic
substances, cerebral edema with increased intracranial
pressure, and cerebral ischemia. His level of consciousness
progressively and rapidly diminished to the point of coma.
SUMMARY/CONCLUSION:
Mr. Evans' condition of hepatic encephalopathy as noted
above resulted from a combination most likely of liver failure
with toxic metabolites circulating in the blood stream and
spilling over into the central nervous drainage system and
brain fluids due to the abnormal permeability of the blood-
brain barrier secondary to his cancer; additionally the same
process of his cancer progression led to cerebral edema.
Additionally, it is likely that Mr. Evans also had some degree
of cerebral bleeding as the liver is directly responsible for
producing coagulation factors as part of the coagulation
cascade that prevents an individual from having abnormal
bleeding and in particular intercerebral bleeding.
This sequence of events in Mr. Evans was an inexorable,
ongoing, worsening situation that had no available
treatment. It was undoubtedly a progressive and permanent
condition which advanced to the point of his death. There
was no temporary, transient or conditional aspect to his
cerebral encephalopathy, central nervous system depression
and coma.
To explain it perhaps more succinctly, the combination of
encephalopathy, cerebral edema and bleeding directly
caused a profound central nervous system depression.
Profound central nervous system depression is called coma
where there is a loss of consciousness. In addition to loss of
consciousness there is also loss of use of the extremities as
the central nervous system from the brain does control the
other parts of the central nervous system including the spinal
cord which mediates the function and motion of the
extremities. As Mr. Evans' level of central nervous system
depression became more deeply affected and his coma
continued to permanently deepen, he had permanent loss of
use of his extremities.
No. 12AP-313 13
The reason the terminology permanency is used in this
context is simply that unlike a medically induced coma for
treatment purposes, loss of consciousness due to central
nervous system depression (defined as coma) and loss of use
of extremities, are ongoing and irreversible processes with
any type of malignancy such as hepatic angiosarcoma where
there is no available treatment. The lack of viable treatment
alternatives for Mr. Evans had already been proven and
accepted. His development of coma and loss of use of his
extremities was a one-way street with unfortunately no
available or known medical intervention that could reverse
this process.
In short his permanent loss of use of his extremities was a
direct result of the combination of the buildup of neurotoxic
substances, cerebral edema, increased intracranial pressure,
cerebral ischemia and most likely even cerebral bleeding.
This was an irreversible, permanent progression of events
that led to coma which is the definition of profound central
nervous system depression with loss of consciousness; and
with concomitant inability to use his extremities on a
permanent basis. Ultimately, the cerebral pressure and other
noted factors built up to the point that the brain stem was
almost certainly compressed to the point that he could no
longer breathe and this resulted in his ultimate demise. All of
these conditions; buildup of neurotoxic substances, cerebral
edema, increased intracranial pressure, cerebral ischemia
and cerebral bleeding, hepatic failure, hepatic
encephalopathy, central nervous system depression, and
resultant permanent loss of use of his upper and lower
extremities are physical manifestations that are the direct
result of the allowed claim for hepatic angiosarcoma.
In my medical opinion, and expressed with a reasonable
degree of medical certainty, Mr. Evans succumbed and died
secondary to his work-related hepatic angiosarcoma, a claim
already allowed, and a cause of death also affirmed on his
death certificate. Furthermore, his pre-terminal state
resulted from the angiosarcoma which irreversibly and
permanently depressed the central nervous system leading to
the level of depression which resulted in permanent loss of
use of his upper and lower extremities.
No. 12AP-313 14
{¶ 35} 21. On November 17, 2011,3 at the request of relator, Joseph F. Buell, M.D.,
issued a two-page narrative report. Dr. Buell is a professor of surgery and pediatrics at
Tulane University located at New Orleans, Louisiana. In his report, Dr. Buell opines:
I am in receipt and have reviewed the medical records of Mr.
Glen[n] Evans. Mr. Evans was a retired Poly[O]ne worker
who was diagnosed with angiosaroma of the liver. I was
provided medical records for Mr. Evans, which noted his
polyvinyl exposure and identified a distant history of
smoking. After diagnosis of angiosarcoma was made, Mr.
Evans was started on a T1 inhibitor, and later treated with
taxol, gemcitabine and eventually gemzar chemotherapy.
The records noted he developed congestive heart failure
during this time frame. This claim is not supported by the
medical evidence which demonstrated his cardiac function
measure by ejection fraction was normal as measured by
cardiac ECHO. An initial occupational medical exam was
performed by Dr. Darr on 4/11/11 which reported Mr. Evans
as "fatigued." At this time Dr. Darr opinioned that Mr. Evans
had Class III impairment.
Subsequently, in June of 2011 Mr. Evans presented to the
emergency room with a rupture of his liver tumor. This was
treated with a radiologic procedure to clot the bleeding.
Often radiologic treatment of a liver tumor clots blood flow
to the tumor as well as the normal uninvolved liver. After
extensive chemotherapy and a delayed treatment of his
tumor after rupture Mr. Evans suffered liver
decompensation. Mr. Evans was examined by an orthopedic
surgeon who claimed four extremity disabilities.
After review of Mr. Evans medical records and my extensive
clinical experience with liver disease and management of
liver tumors and particularly angiosarcoma, I have
formulated the following medical opinions:
[One] There are some concerning irregularities in the
opinions and management of Mr. Evans by his physicians
during his care and hospitalizations. As examples there is
lack of clinical data i[.]e[.] cardiac ECHO, to support his
medical diagnosis of congestive heart failure and as another
3The report of Dr. Buell is incorrectly dated "November 17, 2010." It is obvious that the report is incorrectly
dated.
No. 12AP-313 15
example Mr. Evans did not receive local therapy to prevent
tumor rupture.
[Two] Mr. Evans became encephalopathic (unconscious) due
to hepatic failure. To physicians unfamiliar with the
manifestations of liver disease and decompensated liver
patients it might appear that they suffered irreversible
damaged [sic] of the central nervous system, but this is
purely a reversible condition. Noting again there was no
permanent injury resulting in loss of all four extremities.
Neither the agiosarcoma nor the treatment of the
angiosarcoma can cause permanent damage to the central
nervous system. More often than not this state of
encephalopathy is completely reversible with appropriate
medical therapy. In no way did Mr. Evans ever permanently
lose function of all four of his extremities.
[Three] An orthopedic surgeon (bone surgeon) has limited
knowledge and experience with liver failure patients let alone
management of hepatic encephalopathy. It is my opinion
that this was a flawed opinion due to the physician's lack of
knowledge.
[Four] Lastly, I have reviewed the summary report from Dr.
Trangle who quotes several historic papers. What is not
presented is the full spectrum of patient with long-term
survival. Several series document that when patients receive
aggressive therapy they can survive 2 to 3 years. I again
reiterate Mr. Evans suffered from hepatic encephalopathy
and decompensated liver disease that was not aggressively
treated. At time of his exam by an orthopedic doctor he did
not have loss of extremity use but was rather suffering from a
reversible medical condition.
{¶ 36} 22. Following a November 21, 2011 hearing, an SHO issued an order that
vacates the DHO's order of September 27, 2011 and awards 4123.57(B) scheduled loss
compensation for loss of use of both arms and legs. The SHO's order of November 21,
2011 explains:
The Staff Hearing Officer finds that applicant/surviving
spouse Twyla B. Evans has withdrawn her requests for
awards for the "loss of hearing comprehension in both ears"
and for the "loss of vision comprehension in both eyes." The
Staff Hearing Officer, therefore, orders that these requests be
dismissed.
No. 12AP-313 16
The Staff Hearing Officer finds, per the 11/03/2011 report of
Dr. Trangle and the 07/05/2011 and 07/27/2011 reports of
Dr. Levy, that decedent Glenn Evans suffered the total loss of
use of his bilateral arms and bilateral legs prior to his death
on 07/08/2011. The Staff Hearing Officer further finds that
such losses of use were the direct result of the allowed
condition "angiosarcoma" and its sequelae. Per the rationale
set forth in State, ex rel. Moorehead -v- Industrial
Commission (2006), 112 Ohio State 3d 27, 857 North East 2d
1203, the Staff Hearing Officer does not find that O.R.C.
4123.57 requires that an Injured Worker be cognizant of his
'loss of use' in order to receive compensation for same.
In the instant case, decedent Glenn Evan's [sic] comatose
condition, during which his loss of use of his arms and legs
was present, does not bar an award for same. Additionally,
the Staff Hearing Officer finds that speculation that Mr.
Evan's [sic] condition or the course of his "angiosarcoma"
might have been altered had a different treatment protocol
been adopted does not negate the fact that a loss of use of the
bilateral arms and bilateral legs existed. Finally, the Staff
Hearing Officer finds no persuasive medical evidence that
demonstrates that Mr. Evan's [sic] comatose condition and
resultant losses of use were temporary or transient (see,
State, ex rel. Carter -v- Industrial Commission, 2009 WL
3366373 (Ohio App. 10 Dist)).
The Staff Hearing Officer finds that applicant/surviving
spouse Twyla B. Evans is entitled to an award for the losses
of use described above (eight hundred and fifty weeks -
4123.57). Start date for the award is 07/05/2011 (Dr. Levy's
report). Payment to be made and processed per statute.
All evidence on file and at hearing, including the 11/17/2011
report of Dr. Buell, was reviewed and considered.
{¶ 37} 23. On December 21, 2011, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of November 21, 2011.
{¶ 38} 24. On February 22, 2012, the three-member commission, on a
unanimous vote, mailed an order denying relator's request for reconsideration.
{¶ 39} 25. On April 6, 2012, relator, PolyOne Corporation, filed this mandamus
action.
No. 12AP-313 17
Conclusions of Law:
{¶ 40} Two main issues are presented: (1) whether the commission relied upon
some medical evidence meeting the statutory requirement that the loss of use of both
arms and legs was permanent rather than temporary, and (2) whether the commission
relied upon some medical evidence showing that the allowed condition, angiosarcoma,
independently caused the permanent loss of use of Evans' four extremities.
{¶ 41} The magistrate finds: (1) there is indeed some medical evidence upon
which the commission did rely to support the statutory requirement that the loss of use
was permanent rather than temporary, and (2) there is indeed some medical evidence
upon which the commission relied showing that the allowed condition, angiosarcoma,
independently caused the permanent loss of use of Evans' four extremities.
{¶ 42} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
{¶ 43} R.C. 4123.57(B) provides for weekly scheduled loss compensation for
enumerated body parts. It provides as follows:
For the loss of an arm, two hundred twenty-five weeks.
***
For the loss of a leg, two hundred weeks.
{¶ 44} The only compensable loss of use under R.C. 4123.57(B) is a permanent and
total loss of use. State ex rel. Welker v. Indus. Comm., 91 Ohio St.3d 98 (2001). An
injured worker claiming a loss of use under R.C. 4123.57(B) has the burden of showing
that his loss of use is permanent. State ex rel. Carter v. Indus. Comm., 10th Dist. No.
09AP-30, 2009-Ohio-5547, citing Welker.
{¶ 45} Two cases are instructive to the issues here. They are State ex rel.
Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364 and Carter.
Accordingly, both cases will be presented here at some length.
The Moorehead Case
{¶ 46} In Moorehead, William Moorehead fell approximately 15 to 20 feet head
first onto a concrete floor while working on a raised platform at his job site. Upon impact,
No. 12AP-313 18
he suffered severe spinal cord and other injuries. Unrebuttable evidence established that
the spinal cord injury rendered him a quadriplegic. Moorehead never regained
consciousness and died 90 minutes after the fall.
{¶ 47} Moorehead's widow applied for death benefits and also for scheduled loss
compensation based on loss of use of both arms and legs. The commission denied the
application for scheduled loss compensation, observing that scheduled loss benefits may
be awarded only to injured workers who experience both a physical and sustained loss of
use and also consciously perceive and experience the physical suffering and hardship
caused by the loss of use of a body part in the period between injury and death. The
commission stated that "the widow-claimant's application for such benefits must fail, as
the decedent did not sustain the loss of his extremities, because he was comatose, and
completely unaware of the extent of his injuries, for the brief period between the
accident and his death." Id. at ¶ 3.
{¶ 48} In Moorehead, the Supreme Court of Ohio issued a writ of mandamus,
explaining:
Similarly, there is no language in R.C. 4123.57(B) requiring
that an injured worker be consciously aware of his paralysis
in order to qualify for scheduled loss benefits. In an
analogous case the Supreme Court of New Hampshire
considered a scheduled loss application filed on behalf of a
worker whose injury left him in an irreversible vegetative
state. Corson v. Brown Prods., Inc. (1979), 119 N.H. 20, 397
A.2d 640. The application was denied administratively solely
because Corson's vegetative state made him unaware of his
loss. The New Hampshire Supreme Court vacated that
decision and awarded scheduled loss compensation, writing:
What is of paramount importance in this case is that words
such as 'awareness' or 'consciousness' cannot be added under
the guise of legislative history to a statute which clearly
states that '[t]he scheduled awards under this section accrue
to the injured employee simply by virtue of the loss or loss of
the use of a member of the body.' * * * When the language
used in a statute is clear and unambiguous, its meaning is
not subject to modification by construction." Id., 119 N.H. at
23, 397 A.2d 640.
No. 12AP-313 19
The same rule of statutory construction applies here. When
"the meaning of the statute is unambiguous and definite, it
must be applied as written and no further interpretation is
necessary." State ex rel. Savarese v. Buckeye Local School
Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d
463. R.C. 4123.57(B) does not say that compensation is
dependent upon a claimant's conscious awareness of his or
her loss, whether resulting from amputation or paralysis.
Rather, where the requisite physical loss has been sustained,
the statute directs that scheduled loss compensation shall be
paid.
This court should not graft duration-of-survival or
cognizance requirements to R.C. 4123.57(B), because the
statute has no text imposing them. Public-policy arguments
relative to the requisites of scheduled loss benefits pursuant
to R.C. 4123.57 are better directed to the General Assembly,
including arguments that a specified time of survival should
be mandated after a paralyzing injury and that a worker be
cognizant of his or her loss before loss-of-use benefits are
payable.
The appellant proffered medical evidence establishing that
William Moorehead sustained the physical loss of use of his
limbs as a result of his fall. Consciousness of that loss during
an extended period of survival is not required by R.C.
4123.57(B), and the commission therefore incorrectly
applied the statute when it denied the appellant's application
on that basis.
Id. at ¶ 16-20.
The Carter Case
{¶ 49} In Carter, the commission denied R.C. 4123.57(B) compensation for the
alleged loss of use of the upper extremities and left leg of David E. Carter, who died on
October 17, 2006 as a result of an October 14, 2006 gunshot wound to his abdomen while
employed as a night club bouncer/security guard. During Carter's hospitalization
following the gunshot wound, his right leg was surgically amputated at the knee. Also
during the period of hospitalization, Carter underwent a chemically induced paralysis
intended to be therapeutic and reversible.
No. 12AP-313 20
{¶ 50} In Carter, the commission denied compensation for the alleged loss of use
of the three extremities on grounds that the loss was not permanent, but only temporary
in nature. The commission reasoned that, had Carter survived his traumatic injury, he
would have recovered from the chemically induced paralysis and would have had full
use of the three extremities.
{¶ 51} Carter's dependent children filed a mandamus action in this court
challenging the commission's denial of compensation for the alleged loss of use of the
three extremities.
{¶ 52} While the relators conceded that the chemical paralysis was intended to be
therapeutic and reversible, they posited that the paralysis was rendered permanent by
the fact that the paralysis continued up to Carter's death. This court disagreed, stating
in its decision:
While the evidence in Moorehead showed that the decedent
had suffered permanent, albeit brief, paralysis prior to his
death, the evidence here indicates that decedent's induced
paralysis was a temporary measure designed to aid in his
recovery. There is no evidence that, but for decedent's death,
the paralysis would have been permanent.
Id. at ¶ 5.
{¶ 53} In Carter, this court adopted the magistrate's decision which further
explains this court's rationale in holding that Carter's dependents had failed to prove that
the loss of use was permanent.
{¶ 54} In the magistrate's decision adopted by the Carter court, the magistrate
relied upon the definition of "permanent" provided by the syllabus of Logsdon v. Indus.
Comm., 143 Ohio St. 508 (1944). The syllabus states:
The term 'permanent' as applied to disability under the
workmen's compensation law does not mean that such
disability must necessarily continue for the life of a claimant,
but that it will, with reasonable probability, continue for an
indefinite period of time without any present indication of
recovery therefrom.
{¶ 55} Finding the Logsdon definition of permanent to be helpful, the magistrate
explained why Carter's paralysis was temporary:
No. 12AP-313 21
In the magistrate's view, the court's discussion of the
meaning of the term "permanent" in DaimlerChrysler is
helpful to the resolution of relator's claim that decedent's
death turned a temporary paralysis into a permanent one.
The determination of whether a condition is temporary or
permanent, of necessity, involves a determination of the
probable future status of the condition based upon current
medical information. It is not a determination to be made
from hindsight, but a determination of reasonable
probability as to the future. State ex rel. Matlack, Inc. v.
Indus. Comm. (1991), 73 Ohio App.3d 648, 658, 598, N.E.2d
121 ("[C]ourts have held that the permanency is not gauged
on the basis of hindsight.").
Thus, the relevant inquiry as to whether the chemically-
induced paralysis was temporary or permanent is premised
upon events at the time that the paralysis was chemically
induced, not upon the hindsight view after decedent's death.
Id.Id. ¶ 57-59.
The First Issue: Was the loss of use permanent?
{¶ 56} Here, relying upon this court's decision in Carter, relator argues that Evans'
death, some four days after Dr. Levy's in-home examination, rendered temporary the
observed loss of use of the extremities.
{¶ 57} Clearly, this court's analysis and rationale in the Carter case does not
compel relator's conclusion that Evans' loss of use was temporary rather than
permanent. That is, relator's reliance upon Carter is misplaced.
{¶ 58} As indicated by the medical evidence upon which the commission relied,
Evans' loss of use was the medically expected result of his angiosarcoma of the liver.
Unlike Carter's situation, Evans' loss of use was not chemically induced. Evans' loss of
use was not in anyway therapeutic. Rather, Evans' loss of use was the natural
consequence of his angiosarcoma. Thus, unlike Carter's temporary paralysis, Evans' loss
of use was permanent because it was expected to last, and did last, until Evans' death.
No. 12AP-313 22
{¶ 59} Here, relying upon the report of its own medical expert, Dr. Buell, relator
posits that Evans' loss of use of his four extremities during the days prior to his death
was not permanent, but temporary. Dr. Buell opined:
Neither the angiosarcoma nor the treatment of the
angiosarcoma can cause permanent damage to the central
nervous system. More often than not this state of
encephalopathy is completely reversible with appropriate
medical therapy. In no way did Mr. Evans ever permanently
lose function of all four of his extremities.
{¶ 60} Relator's reference to Dr. Buell's report to support its contention that Evans'
loss of use was temporary is problematic given that the commission did not find the
report worthy of its reliance.
{¶ 61} Dr. Buell's opinion was directly contradicted by the reports of Drs. Levy
and Trangle upon whom the commission did rely.
In his seven-page narrative report, dated July 27, 2011, Dr. Levy states:
The patient does have permanent loss of use of various body
parts as statutorily determined. Mr. Evans had no functional,
meaningful or volitional use of either of his arms or legs. All
four limbs can be considered to have no functional use. For
actual practical purposes he has permanently lost the use
through the central nervous system dysfunction he has of
any extremity movement or activity.
{¶ 62} In his seven-page narrative report dated November 3, 2011, Dr. Trangle
states:
To explain it perhaps more succinctly, the combination of
encephalopathy, cerebral edema and bleeding directly
caused a profound central nervous system depression.
Profound central nervous system depression is called coma
where there is a loss of consciousness. In addition to loss of
consciousness there is also loss of use of the extremities as
the central nervous system from the brain does control the
other parts of the central nervous system including the spinal
cord which mediates the function and motion of the
extremities. As Mr. Evans' level of central nervous system
depression became more deeply affected and his coma
continued to permanently deepen, he had permanent loss of
use of his extremities.
No. 12AP-313 23
{¶ 63} Clearly, the reports of Drs. Levy and Trangle, upon which the commission
relied provide the some evidence needed to support the commission's finding that Evans'
loss of use of his four extremities was permanent, thus satisfying the statutory
requirement for compensation.
The Second Issue: Causation
{¶ 64} As earlier noted, relator contends that Evans' loss of use of his four
extremities during the days preceding his death were caused in part by non-allowed
conditions and thus the loss of use is not compensable.
{¶ 65} Relator points out that the DHO, following the September 27, 2011
hearing, found that "Dr. Levy does not sufficiently explain how the allowed condition of
angiosarcoma directly caused the damage to the central nervous system that would then
cause the loss of use of all four extremities."
{¶ 66} Relator points out here, as did the DHO in his order, that Dr. Levy listed
multiple "diagnoses" in his July 27, 2011 report.
{¶ 67} It can be noted that the SHO's order of November 21, 2011 vacates the
DHO's order of September 27, 2011 and awards compensation based upon Dr. Levy's
July 27, 2011 report that the DHO found to be problematical. Also, the SHO's order
relies upon the November 3, 2011 report of Dr. Trangle that issued after the DHO's
decision.
{¶ 68} Of course, it should be understood that the November 21, 2011 hearing
before the SHO was de novo. Thus, it was within the SHO's discretion to reject the
DHO's view of Dr. Levy's July 27, 2011 report and to rely upon the report to support an
award. That is, the DHO's rejection of Dr. Levy's report was not binding on the SHO.
{¶ 69} A claimant must always show the existence of a direct and proximate
causal relationship between his or her industrial injury and the claimed disability. State
ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). Non-allowed medical
conditions cannot be used to advance or defeat a claim for compensation. Id. The mere
presence of a non-allowed condition in a claim for compensation does not in itself
destroy the compensability of the claim, but the claimant must meet his burden showing
that an allowed condition independently caused the disability. State ex rel. Bradley v.
Indus. Comm., 77 Ohio St.3d 242 (1997).
No. 12AP-313 24
{¶ 70} In his July 27, 2011 report, Dr. Levy could not be clearer that the
angiosarcoma independently caused the loss of use of all four extremities during the
days prior to death:
At the time that he was evaluated, Mr. Glenn Evans was a 74-
year-old gentleman with a diagnosis of angiosarcoma of the
liver, a result of an occupational environmental exposure
sustained in the course of his employment. * * * Before I had
evaluated him, Mr. Evans was found also to have a medical
history of congestive heart failure, hypertension, reflux and
anorexia, among his other conditions.
***
Coma is defined as a profound state of deep
unconsciousness. It affects any individual's ability to interact
with the surrounding environment. In this particular case it
is the direct sequelae of the obfundation and deep
unconsciousness caused by his progress fatal cancer. The
cancer caused a cascade of events leading to metabolic
derangement, lack of oxygenation and in general lack of the
necessary physiologic mechanisms sufficient to sustain
conscious awareness and bodily function.
{¶ 71} In his November 3, 2011 report, Dr. Trangle could not be clearer that the
angiosarcoma independently caused the loss of use of all four extremities during the days
prior to death:
[H]is permanent loss of use of his extremities was a direct
result of the combination of the buildup of neurotoxic
substances, cerebral edema, increased intracranial pressure,
cerebral ischemia and most likely even cerebral bleeding.
This was an irreversible, permanent progression of events
that led to coma which is the definition of profound central
nervous system depression with loss of consciousness; and
with concomitant inability to use his extremities on a
permanent basis. Ultimately, the cerebral pressure and other
noted factors built up to the point that the brain stem was
almost certainly compressed to the point that he could no
longer breathe and this resulted in his ultimate demise. All of
these conditions; buildup of neurotoxic substances, cerebral
edema, increased intracranial pressure, cerebral ischemia
and cerebral bleeding, hepatic failure, hepatic
encephalopathy, central nervous system depression, and
resultant permanent loss of use of his upper and lower
No. 12AP-313 25
extremities are physical manifestations that are the direct
result of the allowed claim for hepatic angiosarcoma.
{¶ 72} Based on the forgoing analysis, the magistrate concludes that the
commission relied upon some evidence supporting a finding that the allowed condition,
angiosarcoma, independently caused the loss of use of all four extremities.
{¶ 73} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).