State ex rel Kish v. Kroger Co.

Full title: State of Ohio ex rel. Becky Kish, Relator, v. Kroger Co. and Industrial…

Court: Court of Appeals of Ohio, Tenth District

Date published: Nov 8, 2011

2011 Ohio 5766 (Ohio Ct. App. 2011)

Opinion

No. 10AP-882

11-08-2011

State of Ohio ex rel. Becky Kish, Relator, v. Kroger Co. and Industrial Commission of Ohio, Respondents.

Law Offices of James A. Whittaker LLC, Laura J. Murphy and James A. Whittaker, for relator. Beirne & Wirthlin Co., LPA, and J. Stephen Wirthlin, for respondent Kroger Co. Michael DeWine, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio.

STEPHANIE BISCA BROOKS

(REGULAR CALENDAR)

DECISION

Law Offices of James A. Whittaker LLC, Laura J. Murphy and James A. Whittaker, for relator.

Beirne & Wirthlin Co., LPA, and J. Stephen Wirthlin, for respondent Kroger Co.

Michael DeWine, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, J.

{¶1} Relator, Becky Kish ("relator"), filed an original action seeking a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission"), to vacate its order that denied relator's request for an award for the loss of use of her left upper extremity ("left arm") and to enter an order granting that award.

{¶2} This court referred the 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 requested writ.

{¶3} Relator sought a scheduled loss of use award for loss of use of her left arm arising from an industrial injury suffered in 1990. The commission denied relator's request. The magistrate concluded that the commission did not abuse its discretion in reaching this ruling.

{¶4} Unfortunately, relator's objections to the magistrate's decision are not clearly enumerated in her brief. However, it appears that relator raises the following four objections to the magistrate's decision:

[1.] [T]he [magistrate's] decision is devoid of legal and evidentiary support and results in the complete emasculation of the "some evidence" rule, as well as other well established principals [sic] of law. (Relator's brief at 1.)
[2.] The Magistrate [erred by] reject[ing] Relator's first argument that the Commission could not rely upon any of the reports of Dr. Randolph as he failed to properly consider all of the allowed conditions in Ms. Kish's claim. (Relator's brief at 1.)
[3.] The Magistrate next [erred by] reject[ing] Relator's argument that Dr. Randolph was a non-examining physician at the time when he issued his opinions relative [to] Ms. Kish's loss of use petition. (Relator's brief at 4.)
[4.] [The Magistrate's decision should be overruled because] the test she applied to determine whether Ms. Kish was entitled to a loss of use award for her left upper extremity was contrary to law. (Relator's brief at 8.)

{¶5} Generally, there must be "some evidence" supporting the commission's ruling on a claim for loss of use compensation. See State ex rel. Toledo Hosp. v. Indus. Comm., 10th Dist. No. 03AP-581, 2004-Ohio-3315, ¶7. Relator's first apparent objection to the magistrate's decision is that the magistrate erred in finding that there was some evidence to support the commission's denial of relator's claim. In effect, this argument relies on relator's apparent second and third objections and is based on the premise that the medical reports of David C. Randolph, M.D. ("Dr. Randolph") could not constitute some evidence upon which the commission could rely. For the reasons explained below, we overrule relator's second and third objections. Accordingly, we conclude that Dr. Randolph's reports constituted some evidence in support of the commission's decision, and we overrule relator's first objection.

{¶6} In her second apparent objection to the magistrate's decision, relator asserts that the magistrate erred by rejecting her argument that the commission could not rely on Dr. Randolph's reports because he failed to consider all of relator's allowed conditions. An examining physician must accept all the allowed conditions of a claim in order to render an opinion that may constitute some evidence upon which the commission can rely. State ex rel. Davis-Hodges v. Indus. Comm., 10th Dist. No. 10AP-183, 2010-Ohio-5871, ¶28. Relator claims that Dr. Randolph failed to properly consider the condition of compartment syndrome associated with the fracture or dislocation of her left elbow, which the commission granted in 2002. We note that the magistrate concluded that relator waived this argument because there was no indication in the record that she raised this issue in her appeal from the order of the district hearing officer ("DHO"). (See Magistrate's Decision, ¶44-46.) However, the magistrate also addressed the merits of this argument, and we will consider relator's objection to the magistrate's ruling on this issue.

{¶7} Dr. Randolph examined relator on February 23, 2009. Based on this examination, he issued an initial report on March 5, 2009 ("March report"). Dr. Randolph subsequently issued additional reports on June 21, 2009 ("June report") and October 2, 2009 ("October report"), but did not re-examine relator before issuing those reports.

{¶8} Dr. Randolph's March report and June report refer to the relevant allowed condition as "early complications of trauma," rather than "compartment syndrome." Relator argues that this indicates that Dr. Randolph did not properly consider the condition. The magistrate concluded that Dr. Randolph considered all allowed conditions, finding that compartment syndrome is a subcategory of the medical coding category for certain early complications of trauma. (See Magistrate's Decision, ¶47.) Following our independent review of the record, we conclude that Dr. Randolph properly considered all of relator's allowed conditions. Although Dr. Randolph's reports referred to "early complications of trauma," his October report also expressly referred to records from Douglas C. Gula, D.O. ("Dr. Gula") referring to compartment syndrome associated with a fracture or dislocation of relator's left elbow. Thus, Dr. Randolph was aware of this condition and must necessarily have considered it in order to respond to Dr. Gula's report. Accordingly, we overrule relator's second objection to the magistrate's decision.

{¶9} Relator's third apparent objection to the magistrate's decision is that the magistrate erred by rejecting relator's argument that Dr. Randolph was a non-examining physician when he issued his June and October reports. Relator argues that because the commission implicitly rejected Dr. Randolph's March report and because Dr. Randolph did not conduct another physical examination before issuing his later reports, then he must be considered a "non-examining" physician. Relator asserts that the magistrate's decision improperly applied the precedent from State ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17.

{¶10} In Zamora, the Supreme Court of Ohio held that "it would be inconsistent to permit the commission to reject [a doctor's] report at one level, for whatever reason, and rely on it at another." Id. at 19. Relator argues that the DHO implicitly rejected Dr. Randolph's March report by relying on the reports of Dr. Gula and James T. Lutz, M.D. ("Dr. Lutz") in allowing further medical treatment for relator. Dr. Randolph did not re-examine relator before issuing his later reports and instead relied on his prior physical examination. Relator argues that, when the DHO and staff hearing officer ("SHO") later relied on Dr. Randolph's June and October reports, the commission violated Zamora.

{¶11} The Supreme Court of Ohio further explained Zamora in State ex rel. Crocker v. Indus. Comm., 111 Ohio St.3d 202, 2006-Ohio-5483. In Crocker, the Supreme Court held that "[w]hat the commission cannot do is accept the same doctor's opinion on one matter that it previously rejected." Id. at ¶16. In this case, Dr. Randolph's March report addressed the questions of what, if any, further treatment was appropriate for relator's condition and whether her medication was necessary and appropriate. These questions were relevant to relator's motion for continued treatment, which the commission granted. Dr. Randolph did not offer an opinion in the March report as to whether relator had suffered a loss of use of her left arm. Therefore, by rejecting this report, the commission only rejected Dr. Randolph's conclusion that no further treatment was necessary. The commission did not reject the results of his physical examination, which also formed the basis of his later reports. Likewise, the commission did not reject his opinion on the loss of use issue because he offered no opinion in the March report as to whether relator suffered a loss of use. Thus, the commission did not violate Zamora by relying on Dr. Randolph's June and October reports in resolving the loss of use claim, even though it had previously rejected his conclusion on the continued treatment issue in his March report. See State ex rel. Sauder Woodworking Co. v. Indus. Comm., 10th Dist. No. 05AP-24, 2007-Ohio-3993, ¶43 (holding that Zamora did not bar the commission from relying on a physician's report containing an opinion that he had not previously expressed in earlier reports). Accordingly, we overrule relator's third objection to the magistrate's decision.

{¶12} Finally, in what appears to be her fourth objection to the magistrate's decision, relator asserts that the magistrate applied the wrong test to determine whether she was entitled to a loss of use award. The Supreme Court of Ohio has established that a claimant seeking a loss of use award "must show that the body part was amputated or that 'the claimant suffered the permanent loss of use of the injured bodily member for all practical intents and purposes.' " State ex rel. Tichy v. Indus. Comm., 10th Dist. No. 10AP-477, 2011-Ohio-2612, ¶6, quoting State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, ¶12. Relator claims that the magistrate failed to properly apply this standard because the magistrate stated that Dr. Gula's findings demonstrated that relator retained "some use" of her left arm. (See Magistrate's Decision, ¶64.)

{¶13} This objection is based on the premise that the commission could not rely upon Dr. Randolph's reports and that the only competent evidence on the record was Dr. Gula's reports, Dr. Lutz's records, and other surgical records. As explained above, Dr. Randolph's June and October reports constituted "some evidence" upon which the commission could rely. Moreover, "[n]othing in Alcoa suggests that the talismanic use of the phrase 'for all practical purposes' is required in determining a loss of use claim." State ex rel. Wheeling-Pittsburgh Steel Corp. v. Indus. Comm., 10th Dist. No. 06AP-43, 2007-Ohio-757, ¶4. Here, the magistrate concluded that the commission had some evidence to support its conclusion that relator had not suffered a loss of use of her left arm. The magistrate's use of the term "some use" in an aside referring to Dr. Gula's findings, which the commission did not rely upon, does not constitute misapplication of the Alcoa standard. Accordingly, we overrule relator's fourth objection to the magistrate's decision.

{¶14} After an examination of the magistrate's decision and an independent review of the record and relevant law, we conclude that the magistrate has properly determined the issues raised by relator. We therefore overrule relator's objections to the magistrate's decision and adopt it as our own, including the findings of fact and conclusions of law set forth therein. We deny relator's request for a writ of mandamus.

Objections overruled; writ denied.

BROWN and KLATT, JJ., concur.

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Becky Kish, Relator,

v.

Kroger Co. and Industrial Commission of Ohio, Respondents.

No. 10AP-882

(REGULAR CALENDAR)

MAGISTRATE'S DECISION

Law Offices of James A. Whittaker LLC, Laura J. Murphy and James A. Whittaker, for relator.

Beirne & Wirthlin Co., LPA, and J. Stephen Wirthlin, for respondent Kroger Co.

Michael DeWine, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶15} Relator, Becky Kish, 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 her application seeking an award for total loss of use of her left upper extremity pursuant to R.C. 4123.57(B) and ordering the commission to find that she is entitled to that award. Findings of Fact:

{¶16} 1. Relator sustained a work-related injury on January 3, 1990 when she slipped on a wet floor. Although relator injured only her left ankle, her resulting injuries were significant and her recovery has been complicated further by various flow-through injuries which occurred as a result of the original ankle injury. At this time, relator's workers' compensation claim is allowed for the following conditions:

Left ankle injury; reflex sympathetic dystrophy; depression; fracture/dislocation left elbow with compartment syndrome; loss of use of the left leg.

{¶17} 2. On March 18, 2009, relator filed a motion seeking the authorization of continued medical treatment for the allowed conditions in her claim. On March 27, 2009, relator filed a motion seeking a scheduled loss of use award for her left upper extremity. Relator's motions were supported by hospital records specifically concerning the numerous surgeries performed in an effort to provide relief for relator's left arm condition. The surgeons who performed those surgeries are Thomas M. Due, M.D. and Edward V. A. Lim, M.D. Relator also submitted the March 20, 2009 report of James T. Lutz, M.D. Dr. Lutz identified the allowed conditions in relator's claim as follows:

* * * Left lower leg injury NOS; depressive disorder NEC; RSD, NOS; fracture left lower humerus NOS-closed; early complications of trauma NEC; and ankylosis left lower leg.

Dr. Lutz opined that the medical treatment and medications were necessary for the treatment of relator's allowed conditions.

{¶18} 3. Relator also submitted the March 25, 2009 report of Douglas C. Gula, D.O. In his report, Dr. Gula provided the following relevant history concerning relator's allowed conditions:

On * * * January 3, 1990, * * * she fell injuring the left ankle. * * * X-rays were taken and she was placed in a splint and instructed to seek orthopedic attention. She initially was seen by Dr. Marco who evaluated the patient and felt that a cast was most appropriate. * * *
After casting of 6 to 8 weeks she was then placed in a Cam Walker for a lengthy period of time. Thereafter, in April 1990, * * * [i]t was felt that Ms. Kish did indeed have reflex sympathetic dystrophy as related to the left lower extremity. A bone scan was obtained[.] * * * [S]he had significant problems with regards to an equinus deformity and was unable to walk. She underwent an extensive course of treatment between 1993 to 1999. * * * She continued with pain about the left ankle and it was felt that an amputation was most appropriate.
It should be noted that in June 2001 she fell down steps secondary to marked weakness of arms after many years of crutch ambulation. * * * [S]he suffered a fracture/dislocation of the left arm. * * * Orthopedic surgical intervention was performed. * * * [I]n addition to the fracture/dislocation, she developed a compartment syndrome as related to left upper extremity. Thereafter, she had a total of 13 surgical procedures. * * *
In the fall of 2001 she was seen in the Cleveland Clinic. It was felt that surgical intervention was most appropriate as related to left lower extremity in the form of an amputation. This was based upon the severe left lower extremity discomfort she was indeed experiencing.
* * * Subsequent to the amputation, she continued with an extensive course of physical therapy.
Thereafter, when she had essentially recovered she was given a prosthesis and was riding a bike on the road when her left foot slipped off the pedal causing her to bend completely backward causing her to fracture her left femur
and the left patella. She did have an open reduction and fixation of fractured femur as well as patella. * * *

Thereafter, Dr. Gula provided the following opinion concerning relator's application for a scheduled loss of use award:

At the present time she does complain of significant pain about the left arm, limitation of motion. She is unable to extend her left arm. Any attempt at motion of the left hand does cause increased pain with associated numbness. Pain does radiate up into the shoulder. She has numbness as related to the fingers of the left upper extremity.
Pain is an 8-10+ on a scale of 1-10.
* * * Weakness is noted with regards to the function of the left upper extremity, left hand, left shoulder, as well as the left lower extremity. * * *
* * *
* * * On examination as related to left upper extremity, one could appreciate inability to hold any object, numbness and tingling is noted diffusely throughout the left upper extremity with shooting pain noted from the elbow to the shoulder. Marked weakness is noted with regards to any attempt at muscle function. The range of motion of the left elbow reveals 30 degrees to 80 degrees of flexion. Supination at 40 degrees, pronation 60 degrees. She was unable to make a fist with regards to the left upper extremity. One could appreciate healed surgical scars as related to the left elbow and left upper extremity.
On examination of left shoulder one could appreciate forward flexion 100 degrees, abduction 100 degrees, internal rotation and external rotation are 40 and 50 degrees respectively. Extension is 50 degrees, adduction 50 degrees. Marked allodynia and hyperpathia is noted as related to left upper extremity. Grip and pinch strength are markedly decreased secondary to the pain. There is marked weakness with regards to internal and external rotation.
* * *
After reviewing the medical records and the Independent Medical Examination performed, it is my medical opinion that by way of flow through, the injured worker has suffered serious injury to the left upper extremity. At the present time, based upon the Independent Medical Examination performed the injured worker does indeed demonstrate the loss of use as related to left upper extremity. This is very much based upon combination of finger, hand, wrist, elbow and shoulder function. She does demonstrate significant signs of complex regional pain syndrome as related to left upper extremity with hyperpathia and allodynia. It is noted that she does indeed have evidence of complex regional pain syndrome as related to the right lower extremity.

{¶19} 4. Relator was examined by David C. Randolph, M.D. In his March 5, 2009 report, Dr. Randolph identified the allowed conditions in essentially the same manner in which Dr. Lutz had identified them:

*** "[L]eft lower leg injury (959.7); depressive disorder (311); RSD (337.20); fracture left lower humerus, closed (812.40) and early complications of trauma (958.8)." * * *

{¶20} In his report, Dr. Randolph specifically accepted the allowed conditions and provided the following findings upon examination relevant to relator's scheduled loss of use award:

Her left upper extremity was noted to be diffusely tender to the lightest of digital palpation from the mid aspect of the upper arm to all of the digits of her left hand. There was no redness, swelling or bruising noted. There were multiple well healed scars noted over her left forearm, primarily over the volar forearm.
Range of motion of her left elbow was attempted. She showed an extension lag of 30 degrees (normal 0 degrees) with flexion to 140 degrees (normal 140 degrees). She indicated that she was unable to supinate or pronate but then proceeded to do so to 90 degrees in each direction (normal 80 degrees). She indicated an inability to move her left hand or wrist at all.
Grip strength testing utilizing a Jamar dynamometer in five positions on the right side was 33, 32, 33, 27, and 22 (kg). She was able to generate 2 kg of pressure on the left side in the first position but then declined any further testing.
Deep tendon reflexes were declined by the claimant, in her upper extremities because this would produce an unacceptable level of pain.
Circumferential measurements of the upper arm 10 cm above the elbow crease reveal 28 cm on the right side, 28 cm on the left side.
Forearm measurements 6 cm below the elbow crease reveal 26 cm on the right, 25.8 cm on the left.
Diagonal palm measurements reveal 19 cm on the right, 18.7 cm on the left.
(This lack of disparity indicates adequate functional use of the left upper extremity, subjective complaints not withstanding).
* * *
I would note during the course of the evaluation, her left arm rested on a pillow. * * *

{¶21} Thereafter, Dr. Randolph identified the medical records which he reviewed and indicated that he was unable to relate her current medication usage as being necessary and appropriate to the allowed conditions in her claim. Dr. Randolph did not render an opinion as to whether relator had sustained a loss of use of her left upper extremity at this time.

{¶22} 5. Because he had recently examined relator, Dr. Randolph was asked to provide an addendum concerning the loss of use issue. Dr. Randolph specifically criticized Dr. Gula's March 25, 2009 report as failing to provide any objective findings to support his conclusions. Specifically, Dr. Randolph stated:

* * * He states, "on examination, as related to left upper extremity, one could appreciate inability to hold any object" (THIS STATEMENT IS NOT, OTHERWISE, SUPPORTED). Douglas Gula, D.O. goes on to describe "numbness and tingling is noted diffusely throughout the left upper extremity" (NUMBNESS AND TINGLING ARE SUBJECTIVE IN NATURE AND CANNOT BE VERIFIED. THIS STATEMENT IS EQUALLY UNSUPPORTED). "Marked weakness" is described with "any attempt at muscle function." She was "unable to make a fist." There was "marked allodynia and hyperpathia" (SUBJECTIVE IN NATURE) with "decreased" grip and pinch strength.
Remarkably, no measurements of the upper extremity are provided and nothing objective is described other than scarring. There are a number of medical records referenced. Loss of use of the left upper extremity is opined based upon the remarkable subjective issues described. He notes "significant signs of complex regional pain syndrome" which he identifies as "hyperpathia and allodynia" (PLEASE SEE DISCUSSION AND OPINION. THESE ARE NOT "SIGNS" BUT RATHER SYMPTOMS. THEY CANNOT BE VERIFIED. HE DOES NOT REFERENCE ANY EVIDENCE OF THE USE OF A DIAGNOSTIC CRITERIA TO ESTABLISH THE CONDITION).

(Emphases sic.)

{¶23} Thereafter, Dr. Randolph specifically addressed the question of whether or not relator had sustained a total loss of use of her left upper extremity. Dr. Randolph concluded that the medical evidence did not support a total loss of use and explained his rational as follows:

With respect to this issue, I would make reference to my previous report as well as the extensive medical records reported at that time.
This claimant has not lost total use of her left upper extremity as a consequence to the industrial injury of this claim or as a consequence of the conditions listed as being legally allowed in this claim.
* * *
As discussed previously, this claimant's subjective complaints are unsupported by her physical exam.
If one assumes (arguendo) that this claimant is completely unable to use her left upper extremity for any purpose (as alleged), then a physical examination would be anticipated to show evidence that the extremity has atrophied and/or there would be clinical findings to support or substantiate same. I would note Douglas Gula, D.O., did not do measurements on this claimant's upper extremity, but merely indicated the claimant had remarkable subjective complaints and indicated to him (historically) that she was unable to use same. As an orthopedist, Douglas Gula, D.O. should understand that purported loss of function should be accompanied by some form of objective abnormality to support same. Otherwise it is nothing but a "purported loss of function."
Douglas Gula, D.O. bases his hypothesis of "RSD: on this claimant's "clinical findings" of "allodynia" and "hyperpathia." Both of these factors are subjective in nature and cannot be conformed or corroborated. The term "allodynia" refers to a painful response to a nonpainful stimulus, hyperpathia refers to an elevated painful response to a painful stimulus. Neither of these is "objective" therefore neither can be considered a clinical "sign" but is merely a symptom and bedside observation. The "red flag" should have come up when this claimant was noted to have such remarkable complaints with no objective findings at all.
* * *
Even if (arguendo) one wishes to pursue this concept, there are diagnostic criteria established with a corroboration of this condition. These diagnostic criteria are referenced in the AMA fifth Edition Guides and again in the Sixth Edition Guides. The American Medical Association has issued one set of standards, which requires objective findings (for example, x-ray changes consistent with patchy osteoporosis, findings on bone scan, measurable objective abnormalities in the exam, etc.). The claimant does not demonstrate these.
Another set of diagnostic criteria was prepared by the International Association for the Study of Pain. These criteria include three statements of subjective issues (including "hyperpathia" and "allodynia") but also mandate that a
cautious differential diagnosis be employed. The AMA Guides, while noting these criteria, also indicates that Criteria IV of these diagnostic criteria is exclusive and indicates that if there is "any other explanation" for the claimant's complaints, the condition known as "RSD" or "CRPS I" is excluded.
If one reviews these clinical records and even notes the examination by Douglas Gula, D.O., it is quite clear this claimant has a significant underlying nonphysical problem, which obfuscates her clinical presentation. Specifically, this claimant is grossly magnifying her complaints with remarkable histrionic behaviors, possibly reflective of a somatoform disorder, a factitious disorder, malingering, or a number of other possibilities.
* * *
The "bottom line" here is that if, in fact, this claimant had "total loss of use" of her left upper extremity, then her physical examination would support and endorse this by physical measures, which demonstrated remarkable atrophy and a "withered arm." There are no such findings. It is quite clear this claimant is, in fact, using her left arm, otherwise, her upper extremities would not be equal in size as they were at the time I examined her. Unfortunately, Douglas Gula, D.O. did not document any such measurements and consequently statements of "total loss of use" are invalid and unsustainable. The only thing which can be said based upon that documented examination is that this claimant refused to use her left upper extremity and complained of pain.
* * *
* * * There is no rationale for this claimant to be off work as a consequence of the instant event and the claim allowances herein described. The report issued by Douglas Gula, D.O., simply reflects clerical documentation of the claimant's subjective complaints and unwillingness to participate in the exam process. There is no provision of objective abnormality to verify the "total loss of use" of the left upper extremity. When objective measures are obtained, it becomes quite clear this claimant continues to utilize the left upper extremity in a substantive fashion. Otherwise one would anticipate that there would be significant atrophy and withering of the upper extremity, not present in this claimant's exam.
There is no objective evidence of total loss of use of the left upper extremity occurring as a consequence of the industrial injury or the conditions allowed in this claim.

{¶24} 6. Dr. Gula issued a report dated July 16, 2009 in response to Dr. Randolph's first addendum. First, Dr. Gula criticized Dr. Randolph for disagreeing with the diagnosis of RSD:

The diagnosis of RSD was not created by myself. Dissertation is present and provided by Dr. Randolph is irrelevant as related to the care of this individual. It is in his opinion that the injured worker does not have findings compatible with RSD, but the treating physicians prior to my evaluation as well as his evaluation did demonstrate evidence of reflex sympathetic dystrophy, thus the diagnosis of RSD was created by the physician of record long before my evaluation of March 25, 2008, and Dr. Randolph's evaluation thereafter.

Dr. Gula further stated that objective measurements are not necessary:

* * * The difficulty with regards to function as related to the extremity is not subjective in nature. I would want to ask about the evaluation of Dr. Randolph as related to the orthopedic assessment of the left upper extremity. Measurements do not imply dysfunction, atrophy does not imply complete loss of use. Whether or not the individual does indeed utilize the extremity at all, it is obvious as the left upper extremity as related to Ms. Kish does demonstrate a complete loss of use in the sense of the ability to function. The functional limitations that are present make utilization of left upper extremity impossible to use on a daily basis from a remunerative, employment standpoint.

{¶25} Dr. Gula reiterated that, in his opinion, there was sufficient objective medical evidence to support the conclusion that relator had suffered a total loss of use of her left upper extremity.

{¶26} 7. Relator's motion seeking a scheduled loss of use award was heard before a district hearing officer ("DHO") on August 21, 2009. The DHO specifically concluded that relator had not met her burden of proof that she had suffered a total loss of use of the left upper extremity. The DHO cited two reasons for this decision: (1) the DHO was unable to determine whether Dr. Gula was aware that the recognized reflex sympathetic dystrophy did not refer to relator's left upper extremity, and (2) the DHO found that the weight of the medical evidence did not support the finding that relator had suffered a total loss of use of her left upper extremity. The DHO specifically relied on the medical report of Dr. Randolph dated June 21, 2009.

{¶27} 8. Dr. Gula issued another report, dated September 11, 2009, wherein he stated:

The loss of use of Ms. Kish's left upper extremity, is very much based upon the allowed condition of fracture dislocation left elbow, with associated compartment syndrome, and not the RSD.

{¶28} 9. In response to receiving copies of Dr. Lutz's progress notes as well as the September 11, 2009 report of Dr. Gula, Dr. Randolph authored a second addendum, dated October 2, 2009, noting that his opinion that relator does not have a total loss of use of her left upper extremity had not changed. He again pointed out that there was nothing in the clinical file demonstrating any objective abnormalities with respect to relator's left upper extremity. Dr. Randolph stated:

If this claimant, in fact, had "total loss of use of her left upper extremity" then the extremity would be expected to be atrophic, especially after so long a timeframe. Her extremity is not atrophic. Actual measurements of her extremity demonstrate essentially equal measurements circumfer-entially. When this claimant is unaware of observation, the motion on her left upper extremity becomes quite functional.
This claimant has become quite comfortable in a disabled lifestyle. When she is unaware of observation, her left upper extremity function appears to be approaching normal. Her
participation in the examination process is poor. Relying on subjective complaints of pain, however pronounced, in terms of making a "medical assessment" is unfortunate, unnecessary and inappropriate.
Pain by definition is subjective. It is attended upon physician to appropriately evaluate an individual utilizing recognized techniques (for example performing a neurologic examination, measuring the circumference of extremities, observing the claimant, etc.) Unfortunately, these basic activities are not reflected in the available documents.
The fact that the claimant states that she has total loss of use of the left arm is not supported by her physical exam when that exam is performed according to standards promulgated by the American Medical Association in their Guides to the Evaluation of Permanent Impairment.
This claimant's function with respect to her left upper extremity by physical exam is far greater than she subjectively states and is relayed in the available documents. Clerical documentation of subjective pain complaints, however pronounced, without objective abnormalities should be reinterpreted by a skilled and knowledgeable physician. A properly performed physical examination demonstrates that the function with respect to her left upper extremity is far greater than subjectively stated or which would appear in any of the enclosed documents in my reports. This claimant does not have total loss of use of her left upper extremity when a physical examination is properly performed by recognized standards.

{¶29} 10. Relator's appeal was heard before a staff hearing officer ("SHO") on November 19, 2009. The SHO denied relator's request for scheduled loss of use award for her left upper extremity finding that relator had failed to meet her burden of proof. The SHO specifically relied on the medical reports of Dr. Randolph, stating:

In coming to this conclusion, the Hearing Officer relies on the reports of Dr. Randolph dated 06/21/2009 and 10/02/2009.
Dr. Randolph opined that there are no objective abnormalities with respect to the Injured Worker's left upper extremity which would support a total loss of use. He stated that there were no objective measurements or physical
examination findings which would support a finding of a loss of use of the left upper extremity.
Dr. Randolph measured the circumference of the Injured Worker's upper extremities and found that they were approximately equal. He concluded that the functioning and utilization of the upper extremities were approximately equal.
Dr. Randolph stated that if the Injured Worker had a total loss of use of her left upper extremity then the left extremity would be atrophic. Dr. Randolph indicated that the left upper extremity has no atrophy. He stated that the actual measurements of the Injured Worker's extremities demonstrate essentially equal measurement circumference.
Dr. Randolph observed the Injured Worker during his examination and noted that when the Injured Worker was unaware of being observed her left upper extremity function appeared to be approaching normal.
Dr. Randolph concluded based upon observation of the Injured Worker as well as examining the Injured Workers' upper extremities, that the Injured Worker does not have a loss of use of the left upper extremity.

{¶30} 11. Relator's further appeal was refused by order of the commission mailed December 15, 2009.

{¶31} 12. Thereafter, relator filed the instant mandamus action in this court. Conclusions of Law:

{¶32} In challenging the commission's denial of her request for total loss of use of her left upper extremity, relator argues that the commission improperly relied on the reports of Dr. Randolph. Relator argues that the reports of Dr. Randolph do not constitute some evidence upon which the commission could rely because: (1) Dr. Randolph did not consider all the allowed conditions; (2) as a non-examining physician, Dr. Randolph failed to expressly accept the objective findings of the examining physicians; and (3) the commission had previously rejected Dr. Randolph's March 5, 2009 report when the commission authorized treatment.

{¶33} It is this magistrate's decision that the commission did not abuse its discretion. Specifically, the magistrate finds that: (1) Dr. Randolph did consider all the allowed conditions; (2) Dr. Randolph was not a non-examining physician and was not required to expressly accept the objective findings of the examining physicians; and (3) the commission's previous rejection of Dr. Randolph's March 5, 2009 report and Dr. Randolph's conclusion that the requested treatment was not reasonably related to the allowed conditions does not prohibit the commission from relying on his later reports addressing the issue of whether or not relator had sustained a total loss of use of her left upper extremity.

{¶34} The Supreme Court of Ohio has set forth three requirements which must be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to the relief prayed for; (2) that respondent is under a clear legal duty to perform the act requested; and (3) that relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28.

{¶35} In order to qualify for a loss of use award, relator was required to present medical evidence demonstrating that, for all intents and purposes, she had lost the use of her left upper extremity. State ex rel. Alcoa Bldg. Products v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166.

{¶36} In Alcoa, at ¶10, the court set forth the historical development of scheduled awards for loss of use under R.C. 4123.57(B) as follows:

Scheduled awards pursuant to R.C. 4123.57(B) compensate for the "loss" of a body member and were originally confined
to amputations, with the obvious exceptions of hearing and sight. In the 1970s, two cases—State ex rel. Gassmann v. Indus. Comm. (1975), 41 Ohio St.3d 64, 70 O.O.2d 157, 322 N.E.2d 660, and State ex rel. Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 12 O.O.3d 347, 390 N.E.2d 1190—construed "loss," as similarly used in R.C. 4123.58, to include loss of use without severance. Gassmann and Walker both involved paraplegics. In sustaining each of their scheduled loss awards, we reasoned that "[f]or all practical purposes, relator has lost his legs to the same effect and extent as if they had been amputated or otherwise physically removed." Gassmann, 41 Ohio St.2d at 67, 70 O.O.2d 157, 322 N.E.2d 660; Walker, 58 Ohio St.2d at 403-404, 12 O.O.3d 347, 390 N.E.2d 1190. * * *

{¶37} In Alcoa, the claimant, Robert R. Cox, sustained a left arm amputation just below his elbow. Due to continuing hypersensitivity at the amputation site, Cox was prevented from ever wearing a prosthesis. Consequently, Cox filed a motion seeking a scheduled loss of use award for the loss of use of his left arm.

{¶38} Through videotape evidence, Alcoa established that Cox could use his remaining left arm to push open a car door and to tuck paper under his arm. In spite of this evidence, the commission granted Cox an award for the loss of use of his left arm.

{¶39} Alcoa filed a mandamus action which this court denied. Alcoa appealed as of right to the Supreme Court of Ohio.

{¶40} Affirming this court's judgment and upholding the commission's award, the Alcoa court explained, at ¶10-15:

* * * Alcoa urges the most literal interpretation of this rationale and argues that because claimant's arm possesses some residual utility, the standard has not been met. The court of appeals, on the other hand, focused on the opening four words, "for all practical purposes." Using this interprettation, the court of appeals found that some evidence supported the commission's award and upheld it. For the reasons to follow, we affirm that judgment.
Alcoa's interpretation is unworkable because it is impossible to satisfy. Walker and Gassmann are unequivocal in their desire to extend scheduled loss benefits beyond amputation, yet under Alcoa's interpretation, neither of those claimants would have prevailed. As the court of appeals observed, the ability to use lifeless legs as a lap upon which to rest a book is a function unavailable to one who has had both legs removed, and under an absolute equivalency standard would preclude an award. And this will always be the case in a nonseverance situation. If nothing else, the presence of an otherwise useless limb still acts as a counterweight—and hence an aid to balance—that an amputee lacks. Alcoa's interpretation would foreclose benefits to the claimant who can raise a mangled arm sufficiently to gesture or point. It would preclude an award to someone with the hand strength to hold a pack of cards or a can of soda, and it would bar— as here—scheduled loss compensation to one with a limb segment of sufficient length to push a car door or tuck a newspaper. Surely, this could not have been the intent of the General Assembly in promulgating R.C. 4123.57(B) or of Gassmann and Walker.
Pennsylvania defines "loss of use" much as the court of appeals did in the present case, and the observations of its judiciary assist us here. In that state, a scheduled loss award requires the claimant to demonstrate either that the specific bodily member was amputated or that the claimant suffered the permanent loss of use of the injured bodily member for all practical intents and purposes. Discussing that standard, one court has written:
"Generally, the 'all practical intents and purpose' test requires a more crippling injury than the 'industrial use' test in order to bring the case under section 306(c), supra. However, it is not necessary that the injured member of the claimant be of absolutely no use in order for him to have lost the use of it for all practical intents and purposes." Curran v. Walter E. Knipe & Sons, Inc. (1958), 185 Pa.Super. 540, 547, 138 A.2d 251.
This approach is preferable to Alcoa's absolute equivalency standard. Having so concluded, we further find that some evidence indeed supports the commission's decision. Again, Dr. Perkins stated:
"It is my belief that given the claimant's residual hyper-sensitivity, pain, and tenderness about his left distal forearm, that he is unable to use his left upper limb at all and he should be awarded for the loss of use of the entire left upper limb given his symptoms. He has been given in the past loss of use of the hand, but really he is unable to use a prosthesis since he has had the amputation, so virtually he is without the use of his left upper limb * * *."

{¶41} Relator's first contention is that Dr. Randolph did not consider all the allowed conditions when he rendered his opinion. In support of this argument, relator explains that her claim has been allowed for "fracture/dislocation of the left elbow with compartment syndrome." (Emphasis added.) In his medical reports, Dr. Randolph set out her allowed conditions with regard to her left arm as follows: "fracture left lower humerus, closed (812.40) and early complications of trauma (958.8)." (Emphasis added.) Relator argues that Dr. Randolph did not consider compartment syndrome.

{¶42} In response to relator's argument, the commission has directed the court's attention to the ICD-9 codes utilized by physicians, self-insured employers and the commission. The ICD-9 codes specifically identify various conditions. As the commission explains "early complications of trauma (958.8)" is the main category under which "traumatic compartment syndrome (958.9)" is listed.

{¶43} The magistrate notes that ICD-9 code 958 pertains to "Certain early complications of trauma." Further, ICD-9 code 958.8 pertains to "Other early complications of trauma" while, as previously noted, ICD-9 code 958.9 specifically pertains to "traumatic compartment syndrome."

{¶44} It should also be noted that, instead of referring to fracture/dislocation left elbow, Dr. Randolph referred to "fracture left lower humerus, closed (812.40)." At no time does relator indicate that Dr. Randolph was considering the wrong condition when he identified "fracture left lower humerus closed (712.40)" instead of "fracture/dislocation left elbow." Further, the magistrate notes that, in his March 5, 2009 report, Dr. Randolph specifically indicated that relator informed him that she had developed compartment syndrome in her left arm. Further, in his December 2, 2009 report, Dr. Randolph specifically indicated that he had reviewed the September 11, 2009 report of Dr. Gula who indicated that relator's "left upper extremity is very much based upon the * * * fracture dislocation left elbow with associated compartment syndrome and not the RSD." The magistrate specifically notes that relator had several opportunities to challenge the manner in which Dr. Randolph set out the allowed conditions in her claim. The magistrate first notes that Dr. Gula never opined that Dr. Randolph was not considering all the allowed conditions when he responded to Dr. Randolph's report. Further, there is nothing in the record to indicate that relator challenged the commission's reliance on the reports of Dr. Randolph on this basis when she appealed from the DHO order of August 21, 2009.

{¶45} Ordinarily, reviewing courts do not have to consider an error which the complaining party could have called, but did not call, to the lower court's attention at a time when it could have been avoided or corrected. See State ex rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, and State ex rel. Gibson v. Indus. Comm. (1988), 39 Ohio St.3d 319.

{¶46} In the present case, there is no indication that relator brought this alleged error either to the attention of the employer or the commission. When Dr. Gula opined that relator had reflex sympathetic dystrophy of her left upper extremity, Dr. Gula authored another report clarifying that relator's loss of use of her left upper extremity was due to the fracture/dislocation of left elbow with associated compartment syndrome and not the reflex sympathetic dystrophy. Dr. Gula's potential error was brought to his attention. However, Dr. Randolph was never given the opportunity to respond to any potential error in his report. It should also be noted that Dr. Lutz identified relator's condition in the same manner as Dr. Randolph: "[E]arly complications of trauma NEC." It was never argued that Dr. Lutz failed to consider the proper conditions.

{¶47} Finding that compartment syndrome is a subcategory of ICD-9 code 958, "[c]ertain early complications of trauma," that relator did not challenge Dr. Randolph's alleged failure to consider all the allowed conditions, and because Dr. Randolph did examine her left upper extremity and provided his clinical findings, the magistrate finds that relator's argument lacks merit.

{¶48} Relator next argues that, as a non-examining physician, Dr. Randolph did not expressly accept the objective findings of the examining physicians. Relator cites State ex rel. Wallace v. Indus. Comm. (1979), 57 Ohio St.2d 55, in support.

{¶49} Pursuant to Wallace, a non-examining physician must specify which medical reports he has reviewed, and after expressly accepting the findings of that examining physician, point out with some specification the basis of the opinion drawn on the factual findings of the examining physician. However, in the present case, relator's argument fails for two reasons: (1) Dr. Randolph actually examined relator, and (2) there were few objective medical findings for Dr. Randolph to expressly accept.

{¶50} As noted in the findings of fact, Dr. Randolph's first report, dated March 5, 2009, was based on his February 23, 2009 examination of relator. Dr. Randolph conducted range of motion testing of relator's elbow as well grip strength testing. At that time, Dr. Randolph authored a report giving his opinion as to the necessity of further treatment and medication. Three months later, Dr. Randolph was asked to give his opinion on whether or not relator had sustained a total loss of use of her left upper extremity. Dr. Randolph relied on his February 23, 2009 examination and explained why he found that relator had not sustained a total loss of use of her left upper extremity. Inasmuch as Dr. Randolph's March 5, 2009 report provided specific findings from the February 23, 2009 examination, he was qualified to render an opinion as to her ability to use her left upper extremity as an examining physician.

{¶51} Secondly, Dr. Gula provided few objective findings. To the extent that he did make objective findings, Dr. Randolph made his own findings. Apparently, despite the fact that the exams were taken 20 days apart, each doctor noted somewhat different objective findings. Because Dr. Randolph actually examined relator, he was not required to accept the objective findings of Dr. Gula and this argument fails as well.

{¶52} Relator's final argument concerns relator's assertion that pursuant to State ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17, the commission was precluded from relying on Dr. Randolph's March 5, 2009 report and, once that report is removed from evidentiary consideration, the commission could not have relied on Dr. Randolph's later reports since he did not re-examine relator.

{¶53} Pursuant to Zamora, the commission cannot reject a medical report at one hearing and then rely upon that same report to support a decision at another hearing. In Zamora, Dr. Kogut had opined that the claimant's psychological condition was related to conditions which were not allowed in the claim. However, the commission allowed the psychological condition in the claimant's claim and relied upon the reports of doctors who opined that the psychological condition was related to the allowed conditions in the claim. Clearly, the commission rejected the report of Dr. Kogut.

{¶54} Later, the commission revived the original report of Dr. Kogut and used it to support the denial of the claimant's application for permanent and total disability compensation. Because it had been the opinion of Dr. Kogut that the claimant's psychological condition was not caused by a work-related injury, the court found that it was inconsistent to permit the commission to reject Dr. Kogut's report at one level, for whatever reason, and then rely on that report at another level.

{¶55} Later, in State ex rel. Crocker v. Indus. Comm., 111 Ohio St.3d 202, 2006-Ohio-5483, the court had an opportunity to examine its holding in Zamora again. In that case, Paul Crocker's treating physician, Dr. Allan G. Clague, authored a report indicating that Crocker had not reached maximum medical improvement (MMI") and opining that Crocker could expect significant improvement to occur over time.

{¶56} Crocker was also examined by Dr. Gregory A. Ornella who opined that Crocker had reached MMI.

{¶57} The commission denied Crocker's request for further temporary total disability compensation based on Dr. Ornella's conclusion that Crocker's condition was permanent.

{¶58} Later, Crocker sought a scheduled loss award under R.C. 4123.57(B) for the loss of use of various fingers.

{¶59} Dr. Clague continued to opine that Crocker could expect improvement in his overall neurological status including that of his fingers with continued treatment. Crocker's loss of use motion was denied. The commission specifically relied on Dr. Clague's opinion that further improvement was expected, as such, Crocker's condition was not permanent and loss of use compensation was premature.

{¶60} Crocker's complaint for a writ of mandamus was granted by this court. Specifically, this court found that the commission could not reject Dr. Clague's opinion that Crocker's condition was not permanent by denying disability compensation, and then revive it and rely on that same opinion seven months later when denying Crocker's motion for scheduled loss compensation. Upon further review, the Supreme Court of Ohio agreed.

{¶61} In the present case, the commission did reject Dr. Randolph's March 5, 2009 report to the extent that Dr. Randolph opined that further treatment for the allowed conditions was not necessary. However, to the extent that Dr. Randolph made objective findings concerning relator's physical abilities, his March 5, 2009 report was not rejected.

{¶62} Later, Dr. Randolph was asked to opine whether, in his opinion, relator had sustained a total loss of use of her left upper extremity. Dr. Randolph referred back to the objective findings he had noted in the March 5, 2009 report and he opined that relator had not sustained a total loss of use of her left upper extremity.

{¶63} It should also be noted that the commission did not actually rely on Dr. Randolph's March 5, 2009 report. The commission relied on his June 21 and October 2, 2009 reports. As such, Zamora, on its face, does not apply. In rejecting Dr. Randolph's opinion concerning treatment, the commission did not reject his clinical or diagnostic findings, nor did the commission reject his competency and his ability to opine on the issue of an alleged loss of use. Nothing in Zamora prohibits the commission's reliance on the subsequent reports of Dr. Randolph, specifically addressing relator's loss of use.

{¶64} The SHO found that relator did not meet her burden of proof. In reviewing Dr. Gula's March 25, 2009 report, the magistrate notes that, while Dr. Gula did not measure the circumference of relator's upper extremity, he did perform range of motion testing of her left shoulder. Specifically, as noted in the findings of fact, Dr. Gula noted:

On examination of left shoulder one could appreciate forward flexion 100 degrees, abduction 100 degrees, internal rotation and external rotation are 40 and 50 degrees respectively. Extension is 50 degrees, adduction 50 degrees. Marked allodynia and hyperpathia is noted as related to left upper extremity. Grip and pinch strength are markedly decreased secondary to the pain. There is marked weakness with regards to internal and external rotation.

His own findings demonstrated that she retained some use of her left upper extremity.

{¶65} Based on the foregoing, it is this magistrate's decision that relator has not demonstrated that the commission abused its discretion and this court should deny relator's request for a writ of mandamus.

STEPHANIE BISCA BROOKS

MAGISTRATE

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).