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The State ex rel. Huntington National Bank v. Lapinta

Court of Appeals of Ohio, Tenth District

November 2, 2017

The State ex rel. Huntington National Bank, Relator,
v.
Elizabeth Lapinta and Industrial Commission of Ohio, Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Michael Soto, for relator.

          David P. Thomas, for respondent Elizabeth Lapinta.

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

          DECISION

          LUPER SCHUSTER, J.

         {¶ 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, ¶ 10.

         {¶ 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.[1]

         {¶ 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 lacks merit.

         {¶ 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 mandamus.

         Objections overruled; writ of mandamus denied.

          TYACK, P. J, and SADLER, J, concur.

         APPENDIX

         Rendered on June 30, 2017

         IN MANDAMUS

         MAGISTRATE'S ...


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