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State ex rel Employee Leasing Services, Inc. v. Amissah

December 9, 2008

STATE OF OHIO EX REL. EMPLOYEE LEASING SERVICES, INC., RELATOR,
v.
FRANCIS AMISSAH AND INDUSTRIAL COMMISSION OF OHIO, RESPONDENTS.



The opinion of the court was delivered by: Sadler, J.

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶1} Relator, Employee Leasing Services, Inc. ("relator"), has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order granting respondent Francis Amissah ("claimant") a scheduled loss award pursuant to R.C. 4123.57(B).

{¶2} Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision including findings of fact and conclusions of law. (Attached as Appendix A.) Therein, the magistrate concluded that the commission did not abuse its discretion and recommended that this court not issue the requested writ of mandamus. Relator filed objections to the magistrate's decision, and both the commission and claimant filed memoranda opposing the objections. This cause is now before the court for a full review.

{¶3} Claimant, a steelworker, sustained a crushing injury to his left fifth finger on July 5, 2005, while in the course and scope of his employment with relator. His claim has been allowed for left fifth finger open wound with tendon; crushing injury left fifth finger; dermatitis left; frozen left shoulder; frozen left elbow; reflex sympathetic dystrophy of the left fourth and fifth fingers; and total stiffness (ankylosis) of two or more fingers. Claimant moved for a scheduled loss award based on the loss of use of his left fourth and fifth fingers; he also requested an award for loss of his left hand based on the loss of use of two or more fingers which, claimant contends, exceeds the normal handicap for his position as a steelworker.

{¶4} Dr. Richard M. Ward's report stated that claimant has almost no ability to move the joints of his left hand due to severe reflex sympathetic dystrophy, which equates to a total loss of use of the left hand. Dr. Naomi Waldbaum's report stated that claimant suffers from severe reflex sympathetic dystrophy and complex regional pain disorder of the left hand and has totally lost mobility in his left hand. In his report following a file review, Dr. Ronald J. Bloomfield stated that the claimant suffered nerve damage affecting his entire left hand, he has lost the ability to use his left fourth and fifth fingers due to reflex sympathetic dystrophy, he is unable to use his left hand, and the loss of function is in excess of the normal handicap for claimant's position. Upon her file review, Dr. Lynn Richardson opined that claimant suffers from severe deformity, ankylosis, pain and reflex sympathetic dystrophy resulting in the total loss of use of his left hand, and the foregoing conditions are causally related to the industrial injury.

{¶5} Section 4123.57(B) of the Ohio Revised Code provides, inter alia, "[i]f the claimant has suffered the loss of two or more fingers by amputation or ankylosis and the nature of the claimant's employment in the course of which the claimant was working at the time of the injury or occupational disease is such that the handicap or disability resulting from the loss of fingers, or loss of use of fingers, exceeds the normal handicap or disability resulting from the loss of fingers, or loss of use of fingers, the administrator may take that fact into consideration and increase the award of compensation accordingly, but the award made shall not exceed the amount of compensation for loss of a hand."

{¶6} The commission granted claimant's scheduled loss award for his left hand, finding that "the claimant has two or more fingers with total stiffness of (ankylosis) and finds this ankylosis has been sustained due to this 07/05/2005 industrial injury. The Staff Hearing Officer awards a total loss of use via ankylosis for the left hand due to the ankylosis of these fingers and the nature of the claimant's work as a laborer." (Stip. Rec. "CC.")

{¶7} Relator seeks a writ of mandamus, arguing that the commission abused its discretion in awarding compensation for a total loss of use of the left hand based on claimant's status as a "laborer," without a more detailed analysis of claimant's particular employment position and how the loss of use of two fingers exceeds the normal handicap for that position. The magistrate disagreed, noting that the cases relator cites for support of its argument all involved claimants who had returned to their former positions of employment, which required more analysis to support a finding that the injured worker had an excessive disability or handicap as a result of the loss.

{¶8} The magistrate pointed out that Dr. Maria Armstrong opined that claimant cannot return to his position in the steel industry as a "chain man" because the job requires full use, dexterity, and strength of his left hand. The magistrate also noted that the commission relied on Dr. Richardson's reports, in which the doctor explained the "chain man" position and how claimant can no longer perform it.

{¶9} Relator lodges three objections to the magistrate's decision. First, relator argues that, contrary to the magistrate's conclusion, the commission is required to engage in an analysis of the injured worker's job functions and how the nature of that employment renders the disability excessive of normal. Relator argues that because neither inability to return to the former position nor loss of use of two fingers automatically equates to an excessive disability, the commission must explain how it analyzed the injured worker's particular situation in concluding that his disability was excessive. In support of this objection, relator cites five decisions of the commission in other cases, in which the hearing officer provided some explanation of his or her analysis of the vocational aspect of the decision. Relator cites no case law from this court or from the Supreme Court of Ohio in support of its argument, and our research finds no such support in precedent. Relator simply reasserts the same argument it made before the magistrate. For the reasons cogently stated by the magistrate, the first objection is overruled.

{¶10} In its second objection, relator argues that the magistrate erred in "searching" the record for some evidence to support the commission's order, even though the commission did not explicitly rely upon the evidence that the magistrate noted. However, as the claimant points out in his memorandum contra, the commission does not have to cite to specific evidence in support of its determination regarding excessive disability, because the commission is the exclusive evaluator of disability. State ex rel. Jackson v. Indus. Comm., 79 Ohio St.3d 266, 1997-Ohio-152, 680 N.E.2d 1233. Accordingly, the second objection is overruled.

{¶11} In its third objection, relator argues that the magistrate erred in making "assumptions" regarding claimant's job duties when there is no record evidence regarding those duties. More specifically, relator contends that the magistrate inappropriately assumed that the commission was aware of claimant's job duties and presumed the regularity of the proceedings. In our view, this objection presents a reworked version of the argument relator made in its first objection, to wit: that the commission must explain in detail the claimant's job duties and how those duties render the claimant's disability in excess of normal for the particular loss. We have already rejected that argument as being without support in statutory law or binding precedent. Accordingly, the third objection is overruled.

{¶12} Having undertaken a review of relator's objections and the memoranda in opposition thereto, considered the arguments of all of the parties, and independently appraised the evidence, we overrule relator's objections, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein, and we deny the requested writ of mandamus.

Objections overruled; writ of mandamus denied.

McGRATH, P.J., and KLINE, J., concur.

KLINE, J., of the Fourth Appellate District, sitting by assignment of the Tenth Appellate District.

APPENDIX A

MAGISTRATE'S ...


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