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State of Ohio Ex Rel. v. Industrial Commission of Ohio and D & S Distribution

September 27, 2011

STATE OF OHIO EX REL.
GLENNA WOODHULL, RELATOR,
v.
INDUSTRIAL COMMISSION OF OHIO AND D & S DISTRIBUTION, INC., RESPONDENTS.



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

Cite as State ex rel. Woodhull v. Indus. Comm.,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶1} Relator, Glenna Woodhull, filed an original action in mandamus requesting this court to issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order that denied relator's motion for an alleged loss of use of the whole thumb under R.C. 4123.57(B) and to enter an order granting that motion.

{¶2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, which includes findings of fact and conclusions of law and is appended to this decision, recommending that this court deny the writ.

{¶3} In his decision, the magistrate concluded that Antony M. George, M.D., applied the wrong legal standard in issuing his report. Specifically, Dr. George considered whether relator's injury resulted in the total loss of use of her thumb, rather than whether the injury resulted in a loss greater than 50 percent. Nevertheless, the magistrate concluded that the district hearing officer ("DHO") and the staff hearing officer ("SHO") both applied the correct legal standard; therefore, the commission did not abuse its discretion in denying relator's motion.

{¶4} No party has objected to the magistrate's findings of fact, and we adopt them as our own. Relator filed the following objections to the magistrate's conclusions of law:

[I.] WHILE THE MAGISTRATE CORRECTLY

DETERMINED DR. GEORGE APPLIED THE WRONG LEGAL STANDARD FOR LOSS OF USE OF THE THUMB AND THE COMMISSION RELIED UPON THAT REPORT, THE MAGISTRATE ERRED WHEN HE DETERMINED THERE WAS NOT AN ABUSE OF DISCRETION.

[II.] PURSUANT TO THE RECENTLY DECIDED OHIO SUPREME COURT CASE, STATE EX REL. KROGER V. JOHNSON (2011), 128 OHIO ST.[3D 243, 2011-OHIO-530], AT A MINIMUM, A LIMITED WRIT SHOULD BE GRANTED AS IT IS POSSIBLE DR. GEORGE WOULD HAVE COME TO A DIFFERENT CONCLUSION HAD HE APPLIED THE CORRECT STANDARD.

{¶5} We will address relator's objections together.

{¶6} Relator contends that the magistrate should have concluded that the commission abused its discretion in denying relator's motion for a loss-of-use award because the commission relied on the report of Dr. George, which all parties appear to agree applied an incorrect legal standard. In his report, Dr. George answered the following question: "In your medical opinion, has the allowed injury resulted in total and permanent loss of use to such a degree that the affected body part does not keep performing most of the functions for its use for which it commonly performed?" The correct test is whether, where ankylosis is proven, "a claimant has lost more than half the use of a thumb, not just whether a thumb is 'useless.' " State ex rel. Rodriguez v. Indus. Comm., 10th Dist. No. 08AP-910, 2009-Ohio-4834, ¶6. Dr. George's application of an incorrect standard, relator contends, eliminates his report as "some evidence" upon which the commission could rely.

{¶7} The commission does not defend Dr. George's report as evidence. Rather, the commission contends that there is additional evidence in the record to support its decision. Specifically, the commission directs our attention to the September 17, 2009 operative note by Gregory Hill, D.O. The note shows that relator's thumb was fully ankylosed at that time. Ankylosis alone is not determinative, however. State ex rel. Riter v. Indus. Comm., 91 Ohio St.3d 89, 93, 2001-Ohio-290. The note does not discuss whether relator has suffered a greater-than-fifty-percent loss of her thumb. Therefore, we conclude that Dr. Hill's operative note, standing alone, does not support denial of relator's motion.

{¶8} The Supreme Court of Ohio discussed a similar scenario in State ex rel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, 2011-Ohio-530, which relator cites. There were two medical reports at issue in Kroger. The court eliminated as evidence the one report relied upon to support the loss-of-use award at issue because the report was internally inconsistent. Rather than concluding that the commission abused its discretion by granting the award, however, the court considered the remaining evidence, which included the report of Dr. Perry N. Funk. While Dr. Funk had concluded that the claimant did not have a total loss of use of his hand, he had used an incorrect legal standard to reach that conclusion. The court stated: "Given the severity of the restrictions noted by Dr. Funk, it is possible that he might have reached a different conclusion had he realized that residual use does not necessarily bar an award. For this reason, we grant a writ and return the cause to the commission for further consideration." Id. at ¶22.

{¶9} The commission seeks to distinguish Kroger, contending that, here, additional evidence (Dr. Hill's operative note) supports denial of relator's motion. We have already concluded, however, that, standing alone, Dr. Hill's note does not support denial of the award because it does not establish that relator suffered a greater-than- fifty-percent loss of her thumb.

{¶10} To us, the key principle applicable here is the court's remedy in Kroger. Once the court determined that Dr. Funk had used an incorrect legal standard, the court did not eliminate that report as evidence. Rather, the court (1) acknowledged that Dr. Funk might have reached a different conclusion if he had applied the correct standard, (2) granted a writ, and (3) returned the matter to the commission for further consideration. We apply that remedy here. Because Dr. George might have reached a different conclusion if he had realized that the loss need only be greater than 50 percent, and not a total loss, we return the matter to the commission for further consideration.

{¶11} In returning this matter to the commission, we acknowledge that both the DHO and the SHO articulated the correct legal standard. Applying that standard, the SHO rejected the conclusions of Timothy Lee Hirst, M.D., who considered whether relator's loss was greater than 50 percent, concluded that relator's thumb was ankylosed, and concluded that her loss of use was 74 percent. The SHO concluded, "Dr. Hirst's report does not support the conclusion that the Injured Worker has more than a 50% loss of the thumb." Turning to Dr. George's report, however, the SHO did not note Dr. George's use of an incorrect legal standard, nor did the SHO expressly conclude that Dr. George's findings support the conclusion that relator has less than a 50-percent loss. In light of Dr. George's application of the incorrect standard, and the Supreme Court's remedy in Kroger, we decline to infer any further analysis by the SHO.

{¶12} For all these reasons, we overrule relator's first objection and sustain her second objection. We adopt the magistrate's findings of fact as our own. We adopt the magistrate's conclusions of law as our own, except that we decline to adopt the conclusions of law reflected at paragraphs 40-44 on page 18. Accordingly, we grant a writ and return this matter to the commission for further consideration.

Objections overruled in part, sustained in part; writ of mandamus granted.

KLATT and DORRIAN, JJ., concur.

A P P E N D I X

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

State of Ohio ex rel. Glenna Woodhull, Relator, v. Industrial Commission of Ohio and D & S Distribution, Inc., Respondents.

(REGULAR CALENDAR)

No. 10AP-821

MAGISTRATE ' S DECISION

Rendered on June 13, 2011

Philip J. Fulton Law Office, and Michael P. Dusseau, for relator. Michael DeWine, Attorney General, and Charissa D. Payer, for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶13} In this original action, relator, Glenna Woodhull, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying her December 18, 2009 motion for an R.C. 4123.57(B) award for an alleged loss of use of the whole thumb and to enter an order granting the award.

Findings of Fact:

{¶14} 1. On September 7, 2005, relator injured her right thumb while employed with respondent D & S Distribution, Inc., a state fund employer. Currently, the industrial claim (No. 05-859943) is allowed for:

Sprain or strain, right thumb; dislocated finger closed, right thumb; sprain interphalangeal, right thumb; substantial aggravation pre-existing osteoarthritis, right thumb, right; ankylosis interphalangeal joint thumb, right finger 1.

{¶15} 2. On September 17, 2009, relator underwent right thumb surgery which was performed by orthopedic surgeon, Gregory Hill, D.O. In his operative report, Dr. Hill indicates that he performed a surgical procedure described as "[a]rthrodesis of the IP joint of the right thumb using a fusion screw by Acumed." Dr. Hill describes both the pre-operative and post-operative diagnosis as "[o]steoarthritis of the interphalangeal joint of the right thumb."

{¶16} 3. On October 22, 2009, the Ohio Bureau of Workers' Compensation ("bureau") mailed an order awarding relator R.C. 4123.57(B) compensation for loss of one-half of the thumb. The bureau's order states reliance upon the September 17, 2009 operative report.

{ΒΆ17} Apparently, prior to the bureau's order, the claim was not officially recognized for "ankylosis interphalangeal joint thumb" because that condition is not among the ...


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