The State ex rel. Huntington National Bank, Relator,
Elizabeth Lapinta and Industrial Commission of Ohio, Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Michael Soto, for relator.
P. Thomas, for respondent Elizabeth Lapinta.
Michael DeWine, Attorney General, and Andrew J. Alatis, for
respondent Industrial Commission of Ohio.
1} Relator, Huntington National Bank
("Huntington"), initiated this original action
requesting that this court issue a writ of mandamus ordering
respondent Industrial Commission of Ohio
("commission") to vacate its order granting a
scheduled loss award in favor of respondent, Elizabeth
Lapinta, based on the permanent and total loss of use of
Lapinta's left arm, and to enter an order finding that
she is not entitled to that award.
2} This matter was referred to a magistrate of this
court pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth
District Court of Appeals. The magistrate issued the appended
decision, including findings of fact and conclusions of law.
The magistrate determined that the commission did not abuse
its discretion in granting Lapinta's application for a
scheduled loss award based on the permanent and total loss of
use of her left arm. Thus, the magistrate recommends this
court deny Huntington's request for a writ of mandamus.
3} Huntington has filed three objections to the
magistrate's decision. In its first and second
objections, Huntington argues the magistrate erred in finding
the commission did not abuse its discretion in relying on Dr.
Hong Shen's March 16, 2010 report, which described
Lapinta's physical restrictions, and Lapinta's
testimony before the commission, which conveyed her personal
observations regarding her inability to use her left arm.
Huntington argues that it was an abuse of discretion for the
commission to rely on Dr. Shen's March 16, 2010 report
because it does not contain objective findings based on a
contemporaneous physical examination of Lapinta. Regarding
Lapinta's testimony before the commission, Huntington
contends the magistrate erred in not finding it was improper
for the commission to rely on that testimony because it was
self-serving and no objective medical evidence supported it.
We disagree with these arguments.
4} 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. "[T]he
pivotal question is how much function remains."
State ex rel. Kroger Co. v. Johnson, 128 Ohio St.3d
243, 2011-Ohio-530, ¶ 15. It is not necessary for
medical evidence to contain the phrase "for all
practical purposes, " in reference to the alleged loss
of use, to constitute some evidence in support of a total
loss of use award. State ex rel. Gwiazda v. Indus.
Comm., 10th Dist. No. 15AP-882, 2016-Ohio-5153, ¶
5} As the magistrate explained, Dr. Shen's March
16, 2010 report, which Dr. Shen completed for the purpose of
submitting a medical status update to Lapinta's
disability benefits provider, includes his objective
observations regarding Lapinta's functional use of her
left arm and hand. According to Huntington, Dr. Shen's
March 16, 2010 report was deficient because Dr. Shen had not
detailed Lapinta's functional capacity in his office
notes completed contemporaneously with Lapinta's office
visits, and because it was not based on a current physical
examination of Lapinta. However, the fact that Dr. Shen did
not detail the functional capacity of Lapinta's left arm
in his office visit notes did not preclude the commission
from relying on Dr. Shen's observations that he made in
response to a specific inquiry from Lapinta's disability
benefits provider. Instructions on the status update form
directed Dr. Shen to indicate Lapinta's functional
capacity based on his "knowledge of the patient."
(Aug. 16, 2010 Unum Disability Status Update at 2.) In
connection with his treatment of Lapinta for her injured left
arm, Dr. Shen had physically examined her numerous times
prior to his completion of the March 16, 2010 report, with
the most recent examination occurring on February 16, 2010.
In his March 16, 2010 report, Dr. Shen noted Lapinta's
complete inability to lift anything with her left arm, to
perform fine finger movements with her left hand, to perform
hand-eye coordinated movements on the left side, or to push
and pull with her left arm. After completing the March 16,
2010 report, Dr. Shen continued to periodically physically
examine Lapinta. On March 4, 2011, Dr. Shen opined that the
total functional capacity restrictions of Lapinta's left
arm were permanent.
6} We also concur with the magistrate's
rejection of Huntington's challenge to the
commission's reliance on Lapinta's personal
observations regarding her inability to use her left arm.
Because Lapinta's testimony was consistent with the
objective observations and medical findings of Dr. Shen
regarding her left arm and hand, it was not improper for the
commission to cite her personal observations in support of
its determination regarding her eligibility for a scheduled
loss award. While Lapinta's own personal observations
would not have independently provided the necessary evidence
to support her request for a scheduled loss award, the
commission reasonably viewed her testimony as being
consistent with the medical reports it found persuasive.
7} In its third objection, Huntington argues the
magistrate erred in not finding that the commission abused
its discretion in rejecting the report of Dr. Michael Keith,
who opined that Lapinta had not sustained a total loss of use
of her left arm. This objection is premised on
Huntington's contention that Dr. Keith's report is
the only medical evidence in the record that sufficiently
addresses the applicable total loss of use standard. However,
because the medical evidence from Dr. Shen provided a
sufficient basis for the commission to find that Lapinta
suffered a total loss of use of her left arm,
Huntington's objection concerning Dr. Keith's report
8} Following our independent review of the record
pursuant to Civ.R. 53, we find the magistrate correctly
determined that Huntington 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. We
therefore overrule Huntington's objections to the
magistrate's decision and deny its request for a writ of
overruled; writ of mandamus denied.
P. J, and SADLER, J, concur.
on June 30, 2017