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State ex rel. Meilstrup v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

March 7, 2017

The State ex rel. David G. Meilstrup, Relator,
v.
Industrial Commission of Ohio and Intigral, Inc., Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

          On brief: Nager, Romaine & Schneiberg Co. L.PA., Jerald A. Schneiberg, Jennifer L. Lawther, and Corey J. Kuzma, for relator.

          On brief: Michael DeWine, Attorney General, and Andrew J. Alatis, for respondent Industrial Commission of Ohio.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Relator David G. Meilstrup initiated this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying his request for a total loss of use award for his left upper extremity and order the commission to find that he is entitled to that award.

         {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, recommending this court deny Meilstrup's requested writ of mandamus.

         {¶ 3} Meilstrup has filed objections to the magistrate's decision. Meilstrup's first objection asserts the magistrate applied the wrong standard in determining that the commission did not abuse its discretion in denying his application for a total loss of use award for his left upper extremity. In his second objection, Meilstrup contends the magistrate erroneously stated that he did not challenge the commission's reliance on the June 27, 2012 report of John G. Nemunaitis, M.D. Generally, Meilstrup challenges the magistrate's recommendation that this court deny his requested writ of mandamus. Meilstrup's objections lack merit.

         {¶ 4} Because Meilstrup has filed objections, we must independently review the record and the magistrate's decision to ascertain whether "the magistrate has properly determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, the relator must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). However, 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).

         {¶ 5} Here, the magistrate determined that because there is some evidence in the record to support the commission's denial of Meilstrup's application for a total loss of use award, he is not entitled to mandamus relief. The magistrate found that the November 9, 2012 report of Elizabeth Mease, M.D., constitutes some evidence supporting the commission's denial. Additionally, the magistrate found that, even if Dr. Mease's report is not considered, Dr. Nemunaitis' report independently constitutes some evidence supporting the commission's denial. Meilstrup challenges these findings. According to Meilstrup, Dr. Mease's report is not some evidence to support the commission's denial because it does not address his "remaining practical functionality specific to his left upper extremity." (Nov. 3, 2016 Objs. to Mag. Decision at 5.) Meilstrup argues that Dr. Nemunaitis' report, like Dr. Mease's report, is not some evidence to support the commission's denial of his application because that report does not sufficiently address his inability to use his left upper extremity.

         {¶ 6} We agree with the magistrate's finding that Dr. Mease's report constitutes some evidence. R.C. 4123.57(B) authorizes compensation to a claimant for the total loss of a body part, such as the total loss of an arm. To qualify for compensation under R.C. 4123.57(B), the "claimant must demonstrate with medical evidence a total loss of use of the body part at issue for all practical purposes." State ex rel. Varney v. Indus. Comm., 143 Ohio St.3d 181, 2014-Ohio-5510, ¶ 16, citing State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166. However, a claimant may qualify for a total loss of use award under R.C. 4123.57(B) even if the body part retains some residual function. Id., citing Alcoa.

         {¶ 7} As the magistrate detailed, the physical findings of Dr. Mease indicate that Meilstrup's left upper extremity retains use beyond residual function. Dr. Mease's report indicates that Meilstrup had full range of motion of his left shoulder and nearly full range of motion of his left elbow, with some loss of both flexion and extension in his left wrist. In response to an inquiry as to whether Meilstrup's left upper extremity had lost practical functionality, Dr. Mease answered in the negative and specifically opined that Meilstrup had only mild loss of use of his left upper extremity. Although Dr. Mease did not expressly state that Meilstrup had not lost the use of his left upper extremity "for all practical purposes, " her report provides evidentiary support for the commission's finding that Meilstrup is not entitled to a total loss of use award for his left upper extremity. See, e.g., State ex rel. Holderman v. Indus. Comm., 10th Dist. No. 12AP-32, 2012-Ohio-6022 (medical report relied on by the commission in denying loss of use award evidenced compliance with the applicable standard even though the report did not use the phrase "for all practical purposes" in concluding that the injured worker had not sustained a total loss of use). Because Dr. Mease's report constitutes some evidence in support of the commission's decision, we find it unnecessary to address the issue of whether Dr. Nemunaitis' report also constitutes some evidence. Therefore, we do not adopt the magistrate's analysis regarding Dr. Nemunaitis' report.

         {¶ 8} For these reasons, we overrule Meilstrup's first and second objections insofar as he challenges the magistrate's determination that this court should deny his requested writ of mandamus. To the extent Meilstrup's second objection challenges the magistrate's findings concerning Dr. Nemunaitis' report, that objection is rendered moot.

         {¶ 9} Following our independent review of the record pursuant to Civ.R. 53, we find the magistrate correctly determined that Meilstrup is not entitled to the requested writ of mandamus. The magistrate properly applied the pertinent law to the salient facts. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein, except we do not adopt the magistrate's decision to the extent it analyzes Dr. Nemunaitis' report. We therefore overrule Meilstrup's objections to the magistrate's decision and deny his request for a writ of mandamus.

         Objections overruled; writ of mandamus denied.

          SADLER and DORRIAN, JJ., concur.

         APPENDIX

         Rendered on October 20, 2016

         IN MANDAMUS

         MAGISTRATE'S DECISION

          STEPHANIE BISCA MAGISTRATE

         {¶ 10} Relator, David G. Meilstrup, 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 which denied his request for a loss of use award for his left upper extremity, and ordering the commission to find that he is entitled to that award.

         Findings of Fact:

         {¶ 11} 1. Relator sustained a work-related injury on June 7, 2005 and his workers' compensation claim has ...


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