State ex rel. Polyone Corp. v. Indus. Comm.

[Cite as State ex rel. Polyone Corp. v. Indus. Comm., 2014-Ohio-1376.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. PolyOne Corporation, :

Relator, :

v. : No. 12AP-313

The Industrial Commission of Ohio : (REGULAR CALENDAR)

and Glenn R. Evans/Twyla Evans,

:

Respondents.

:

D E C I S I O N

Rendered on March 31, 2014

Reminger Co., L.P.A., Martin T. Galvin, and Marianne

Barsoum Stockett, for relator.

Michael DeWine, Attorney General, and Colleen C. Erdman,

for respondent The Industrial Commission of Ohio.

Wincek & DeRosa Co., LPA, Joseph C. DeRosa, and Daryl

Gagliardi, for respondent Twyla Evans.

Vorys, Sater, Seymour and Pease LLP, and Robert A. Minor,

Amicus Curiae Ohio Self-Insurers Association.

Philip J. Fulton Law Office, Philip J. Fulton, and Chelsea J.

Fulton, Amicus Curiae Ohio Association of Claimants'

Council.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

No. 12AP-313 2

BROWN, J.

{¶ 1} In this original action, relator, PolyOne Corporation, seeks a writ of

mandamus from this court ordering respondent, Industrial Commission of Ohio

("commission"), to vacate its order awarding respondent, Twyla Evans ("respondent"),

the surviving spouse of Glenn R. Evans ("decedent"), scheduled loss compensation for

decedent's loss of use of both arms and legs, and to enter an order denying said

compensation.

{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of

Appeals, this court referred the matter to a magistrate who issued the appended decision,

including findings of fact and conclusions of law, recommending that this court deny

relator's request for a writ of mandamus. The magistrate determined there was some

medical evidence to support the commission's finding that decedent's loss of use of his

four extremities was permanent rather than temporary, and that there was some medical

evidence upon which the commission relied showing that the allowed condition,

angiosarcoma, independently caused the permanent loss of decedent's four extremities.

{¶ 3} Relator has filed objections to the magistrate's decision, arguing that R.C.

4123.57(B) does not authorize the benefits sought in this case. Relator contends that the

language of that statute does not support an award for partial disability compensation for

the loss of use of decedent's arms and legs while in a coma for a short period of time

preceding his death; relator maintains that the decedent's failure to survive his comatose

condition does not mean his loss of use of limbs was permanent. In support, relator relies

upon this court's decision in State ex rel. Carter v. Indus. Comm., 10th Dist. No. 09AP-

30, 2009-Ohio-5547.

{¶ 4} In Carter, a worker suffered a gunshot wound while employed as a

nightclub bouncer, and doctors amputated his right leg. Medical complications

developed, and medical personnel sedated and chemically paralyzed the patient as part of

the course of treatment, but he died while in the hospital. The relators (his dependents)

subsequently filed a claim for scheduled loss compensation for the loss of use of his upper

and lower extremities, arguing that the induced paralysis caused a loss of use which

became permanent upon his death. The commission awarded loss of use compensation

for his amputated right leg, but denied loss of use compensation for his upper extremities

No. 12AP-313 3

and left leg. In Carter, the magistrate concluded that the chemically induced paralysis to

the employee's left leg and upper extremities was not permanent and, therefore, found no

abuse of discretion by the commission. The relators filed objections to the magistrate's

decision. In Carter, this court overruled the relator's objections, holding in part that the

evidence indicated that the "decedent's induced paralysis was a temporary measure

designed to aid in his recovery," and that there was "no evidence that, but for decedent's

death, the paralysis would have been permanent." Id. at ¶ 5.

{¶ 5} In the present case, the magistrate analyzed the decision in Carter, and

found relator's reliance upon that case to be misplaced. Specifically, the magistrate noted

that, unlike the injured worker in Carter, decedent's loss of use was not chemically

induced or therapeutic, but, rather, the "natural consequence of his angiosarcoma." Thus,

in contrast to the temporary paralysis of the employee in Carter, decedent's loss of use

was permanent because it was expected to last, and did last, until his death. We agree

with the magistrate that the decision in Carter is distinguishable and does not preclude an

award of benefits under R.C. 4123.57(B).

{¶ 6} Relator's objections also challenge the award under R.C. 4123.57(B) on the

grounds that (1) decedent was comatose immediately prior to death and, therefore,

unaware of his injury, and that (2) his "purported loss of use" only occurred over a course

of a few days. We conclude, however, that the magistrate did not err in finding that the

staff hearing officer properly applied the Supreme Court of Ohio's holding in State ex rel.

Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364. In Moorehead, an

employee fell 15 to 20 feet onto a concrete floor and suffered a severe spinal cord injury;

he lived for approximately 90 minutes, but never regained consciousness and was never

aware that he had been rendered a quadriplegic. The commission denied the widow's

application for loss of use benefits, but the Supreme Court subsequently allowed the writ

and remanded for a determination of benefits, holding in part that "R.C. 4123.57(B) does

not specify a required length of time of survival after a loss-of-use injury before benefits

pursuant to R.C. 4123.57(B) are payable." Id. at ¶ 14. The Supreme Court also made clear

"there is no language in R.C. 4123.57(B) requiring that an injured worker be consciously

aware of his paralysis in order to qualify for scheduled loss benefits." Id. at ¶ 16.

Accordingly, the commission did not abuse its discretion in applying Moorehead to find

No. 12AP-313 4

that R.C. 4123.57 does not require an injured worker to be cognizant of his loss of use, nor

does that decision support relator's duration of survival argument.1

{¶ 7} Relator challenges the medical evidence in the record, and points to the

opinion of its medical expert Dr. Joseph Buell. The magistrate, however, found relator's

reference to Dr. Buell's report "problematic" in light of the fact the commission did not

rely upon it, and that such report was directly contradicted by the reports of Drs. Matthew

Levy and Kevin Trangle. The magistrate further noted that the reports of Drs. Levy and

Trangle "could not be clearer" that the allowed condition, angiosarcoma, independently

caused the loss of use of all four extremities. The magistrate adequately addressed the

medical evidence, and for the reasons set forth, relator's objection as to that issue is not

persuasive.

{¶ 8} Relator further contends the magistrate failed to consider the legislative

intent of R.C. 4123.57, arguing that the award for loss of use benefits in the instant case

essentially represents additional death benefits already provided for the surviving spouse

under R.C. 4123.59. More specifically, relator maintains that benefits under R.C.

4123.57(B) are only intended to compensate for an injured worker's presumed loss of

earning capacity.

{¶ 9} Relator's contention that an award for loss of use benefits under R.C.

4123.57(B) is duplicative of a death benefit award under R.C. 4123.59 is unpersuasive. It

has been noted that the intent of R.C. 4123.59 is to compensate dependents for the "loss of

support" resulting from the employee's death. Fulton, Ohio Workers Compensation

Section 11.3 at 531 (4th Ed.2011). By contrast, "benefits for partial disability are more

akin to damages for work-related injuries." State ex rel. Gen. Motors Corp. v. Indus.

Comm., 42 Ohio St.2d 278, 282 (1975). See also State ex rel. Miller v. Indus. Comm., 97

Ohio St.3d 418, 2002-Ohio-6664, ¶ 12 ("partial disability benefits have been compared to

damages and are awarded irrespective of work capacity"); State ex rel. Dudley v. Indus.

Comm., 135 Ohio St. 121, 125 (1939) (noting scheduled compensation for loss of the sight

1 We note that relator has filed, as supplemental authority, a recent decision by the Supreme Court, State ex

rel. Smith v. Indus. Comm., ___ Ohio St. ___, 2014-Ohio-513. Smith, however, involves scheduled loss

benefits for loss of sight and hearing, rather than loss of use of extremities, and the Smith court does not

discuss (or overrule) its decision in Moorehead.

No. 12AP-313 5

of an eye is "arbitrarily fixed, and has nothing whatever to do with impairment of earning

capacity").

{¶ 10} Relator also asserts that the award was impermissible under Ohio

Adm.Code 4123-3-15(C)(4), arguing that a surviving spouse is only entitled to

compensation if the award was made prior to the death of the injured worker. We

disagree.

{¶ 11} Ohio Adm.Code 4123-3-15(C)(4) states in relevant part: "Where an award

under division (B) of section 4123.57 of the Revised Code has been ordered but not paid

prior to the death of an employee, upon application, the award is payable to the surviving

spouse." While this administrative code provision addresses an award ordered "prior to

the death of an employee," it does not address (nor does it preclude) an application made

by a dependent after the death of an employee. R.C. 4123.60, however, states in part:

If the decedent would have been lawfully entitled to have

applied for an award at the time of his death the administrator

may, after satisfactory proof to warrant an award and

payment, award and pay an amount, not exceeding the

compensation which the decedent might have received, but

for his death, for the period prior to the date of his death, to

such of the dependents of the decedent, or for services

rendered on account of the last illness or death of such

decedent, as the administrator determines in accordance with

the circumstances in each such case.

{¶ 12} Here, as noted by the commission, because decedent would have been

entitled to have applied for a scheduled loss award at the time of his death, his surviving

spouse was entitled to apply for benefits to which he was entitled.2 Thus, relator's

objection asserting that Ohio Adm.Code 4123-3-15(C)(4) precludes the surviving spouse

from recovering benefits in the instant case is not well-taken.

2 We note that amicus curiae, Ohio Self-Insurer's Association, argues that respondent (surviving spouse)

should only be granted loss of use benefits for the period during which decedent experienced loss of use

while alive, i.e., the four days prior to his death. The parties, however, did not raise that argument before

either the commission or magistrate. See Lakewood v. State Emp. Relations Bd., 66 Ohio App.3d 387, 394

(8th Dist.1990) ("Amici curiae are not parties to an action and may not, therefore, interject issues * * * not

raised by parties"). (Emphasis sic.) In any event, such issue would not appear ripe for review. The

commission itself maintains it did not mandate the payment of 850 weeks of scheduled loss payments,

noting the order of the staff hearing officer indicates: "[p]ayment to be made and processed per statute" (i.e.,

including the terms of R.C. 4123.60).

No. 12AP-313 6

{¶ 13} Based upon this court's independent review, we overrule relator's objections

and adopt the magistrate's findings of fact and conclusions of law. In accordance with the

magistrate's decision, we deny the requested writ of mandamus.

Objections overruled; writ of mandamus denied.

CONNOR and DORRIAN, JJ., concur.

___________________

[Cite as State ex rel. Polyone Corp. v. Indus. Comm., 2014-Ohio-1376.]

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. PolyOne Corporation, :

Relator, :

v. : No. 12AP-313

The Industrial Commission of Ohio : (REGULAR CALENDAR)

and Glenn R. Evans/Twyla Evans,

:

Respondents.

:

MAGISTRATE'S DECISION

Rendered on April 5, 2013

Reminger Co., L.P.A., Martin T. Galvin and Marianne

Barsoum Stockett, for relator.

Michael DeWine, Attorney General, and Colleen C. Erdman,

for respondent The Industrial Commission of Ohio.

Wincek & DeRosa Co., LPA, Joseph C. DeRosa and Daryl

Gagliardi, for respondent Glenn R. Evans/Twyla Evans.

IN MANDAMUS

{¶ 14} In this original action, relator, PolyOne Corporation ("relator" or

"PolyOne") requests a writ of mandamus ordering respondent Industrial Commission of

Ohio ("commission") to vacate its order awarding to respondent Twyla Evans, the

surviving spouse of Glenn R. Evans ("Evans" or "decedent"), R.C. 4123.57(B) scheduled

No. 12AP-313 2

loss compensation for decedent's loss of use of both arms and legs, and to enter an order

denying the compensation.

Findings of Fact:

{¶ 15} 1. Until his retirement in 1994, Evans was employed for many years as a

laborer by PolyOne or its predecessor. During his employment, Evans was exposed to

vinyl chloride.

{¶ 16} 2. In July 2010, Evans underwent a CT of his chest and mediastinum. He

later underwent an MRI. Following a CT-guided biopsy of the liver, Evans was

diagnosed with hepatic angiosarcoma. Chemotherapy treatment began in early August

2010. Vinyl chloride exposure is widely known to cause hepatic angiosarcoma.

{¶ 17} 3. In October 2010, Evans filed a workers' compensation claim on a form

captioned "First Report of an Injury, Occupational Disease or Death" ("FROI-1"). On

the form, Evans alleged an "[o]ccupational exposure to vinyl chloride resulting in

angiosarcoma of the liver." August 5, 2010 was listed as the injury date.

{¶ 18} 4. In late October 2010, PolyOne, a self-insured employer, certified the

industrial claim (No. 10-848253) for "angiosarcoma."

{¶ 19} 5. The commission officially recognizes the claim for "angiosarcoma." The

commission recognizes the injury date as August 5, 2010, which apparently

approximates the date of diagnosis.

{¶ 20} 6. On July 8, 2011, Evans died. On the certificate of death, "angiosarcoma

liver" is given as the cause of death. The death certificate was completed and certified by

attending physician Poornanand Palaparty, M.D.

{¶ 21} 7. Earlier, on July 4, 2011, Evans was examined at his home in the

presence of his wife, daughter, and counsel, by orthopedic surgeon Matthew E. Levy,

M.D.

{¶ 22} 8. On July 5, 2011, Dr. Levy wrote:

I performed an examination of patient Glenn Evans last

night in regards to his diagnosis of angiosarcoma. I found

that as of 11:15 p.m. 07/04/2011, he had lost all use of both

arms and both legs.

No. 12AP-313 3

{¶ 23} 9. On July 5, 2011, Evans moved for R.C. 4123.57(B) scheduled loss

compensation for the alleged loss of use of both arms and legs. In support, Evans

submitted the July 5, 2011 report of Dr. Levy.

{¶ 24} 10. On August 12, 2011, a commission hearing officer mailed an ex-parte

order finding that Evans' industrial claim was abated by his death.

{¶ 25} 11. On August 17, 2011, Twyla Evans filed an R.C. 4123.59 death claim on

the FROI-1 form.

{¶ 26} 12. Following a November 21, 2011 hearing, a district hearing officer

("DHO") issued an order allowing the death claim.

{¶ 27} 13. Relator administratively appealed the DHO's order of November 21,

2011 allowing the death claim.

{¶ 28} 14. Following a January 20, 2012 hearing, a staff hearing officer ("SHO")

issued an order allowing the death claim, but modifying the DHO's order of

November 21, 2011. The SHO's order of January 20, 2012 provides in part:

It is found that the decedent's spouse, Twyla Evans, born on

01/16/1936, was wholly dependent upon the decedent for

support at the time of death, and that she is entitled to

weekly benefits in the amount of $748.53.

{¶ 29} 15. The record fails to disclose whether the January 20, 2012 order of the

SHO allowing the death claim was administratively appealed. Presumably, Twyla Evans

is currently receiving weekly benefits under R.C. 4123.59 as a surviving spouse who was

wholly dependent upon decedent at the time of his death.

{¶ 30} 16. Earlier, on July 27, 2011, Dr. Levy issued a seven-page narrative report

based in part on his July 4, 2011 examination of Evans at his home. In his report, Dr.

Levy states:

Mr. Evans is being evaluated in conjunction with his

development of angiosarcoma, his current status and for

determination of loss of use of certain appendages and

faculties.

***

No. 12AP-313 4

CURRENT COMPLAINTS

I was called to evaluate Mr. Evans in his home on

07/04/2011 at 2315 hours. Mr. Evans was evaluated in the

presence of his wife, his daughter and counsel, Mr. Joseph

DeRosa. At the time of evaluation, Mr. Evans was unable to

provide me with any history.

The history was provided by his wife and daughter who note

that his condition has taken a precipitous turn for the worst

today. He was unable to get out of bed, unable to feed

himself, and unable to even participate in his own care and

hygiene. He was noted to be moaning in discomfort

throughout the entirety of my evaluation.

The remainder of the history was gleaned from the medical

records.

PHYSICAL EXAMINATION:

On the physical evaluation, Mr. Evans was found to be in an

obtunded state. He was minimally arousable and he had

rattling respirations. He had a very limited response even to

noxious stimuli. His color was poor[.]

Examination of his upper and lower extremities revealed

pitting edema within the lower extremities, pale coloration

throughout the extremities, no volitional movement and

minimal withdrawal even to noxious stimuli.

I was able to document full passive range of motion in both

shoulders, elbows, wrists and fingers in the upper

extremities; and hips, knees, ankles and toes in the lower

extremities. However, he exhibited no tone in any of the

above-mentioned extremities.

Reflexes were symmetrically diminished in both upper and

lower extremities. Pathologic reflexes such as Babinski's and

Hoffman signs were not observed.

There was no obvious response of the individual to speech, to

noises or to the environment from an auditory perspective.

Similarly, he did not open his eyes, show any meaningful

visual interaction with his environment, track movements or

for all intents and purposes, show that he had any vision

perception of his surroundings.

No. 12AP-313 5

ASSESSMENT:

Based upon review of the history and physical examination,

medical records and all enclosed documentation, the

following opinions are offered with a reasonable degree of

medical certainty.

***

Diagnoses include:

a) Dependent edema;

b) Angiosarcoma;

c) Fatigue;

d) Leg weakness;

e) Elevated liver function tests;

f) Anemia;

g) Gastroesophageal reflux disease;

h) Malnutrition;

i) Status post congestive heart failure;

j) Hearing loss;

k) Cardiac mumur;

l) Loss of use of all four extremities;

m) Loss of vision;

n) Loss of hearing

At the time that he was evaluated, Mr. Glenn Evans was a 74-

year-old gentleman with a diagnosis of angiosarcoma of the

liver, a result of an occupational environmental exposure

sustained in the course of his employment. The diagnosis of

angiosarcoma was confirmed through the pathology

department at Cedar Sinai Medical Center in October 2010

by Steven Geller. Before I had evaluated him, Mr. Evans was

found also to have a medical history of congestive heart

failure, hypertension, reflux and anorexia, among his other

conditions.

I was called to evaluate Mr. Evans in his home on

07/04/2011 at 2315 hours. Mr. Evans was evaluated in the

presence of his wife, his daughter and counsel, Mr. Joseph

DeRosa. At the time of evaluation, Mr. Evans was unable to

provide me with any history.

Coma is defined as a profound state of deep

unconsciousness. It affects any individual's ability to interact

with the surrounding environment. In this particular case it

No. 12AP-313 6

is the direct sequelae of the obfundation and deep

unconsciousness caused by his progress fatal cancer. The

cancer caused a cascade of events leading to metabolic

derangement, lack of oxygenation and in general lack of the

necessary physiologic mechanisms sufficient to sustain

conscious awareness and bodily function.

It is academic where one draws the line in terms of what sort

of responses a patient has to certain stimuli. Mr. Evans was

not noted to have any voluntary responses. In fact, he was

incapable of any response at all to his surrounding

environment. Except for the rare response to noxious

stimuli, he was not interactive with his environment.

The patient does have permanent loss of use of various body

parts as statutorily determined. Mr. Evans had no functional,

meaningful or volitional use of either of his arms or legs. All

four limbs can be considered to have no functional use. For

actual practical purposes he has permanently lost the use

through the central nervous system dysfunction he has of

any extremity movement or activity.

Similarly, at the point in time I saw him, his eyes remain

closed. He did not respond to stimuli. He did not track or

follow and had for all intents and purposes no intentional

volitional vision use. This would apply to bilateral use of both

eyes.

In regards to his hearing, there was no response to hearing

or noise. He did not respond to commands. It was entirely

conjectural if there was even any brain stem auditory

response that was functioning. There was no conscious level

of hearing, interpretation of sound or even a human

response to noise stimuli.

SUMMARY:

Mr. Evans, at the time I saw him, suffered from the

permanent conditions of loss of use of the following:

[One] Right and left arms;

[Two] Right and left legs;

[Three] Vision comprehension in right and left eyes;

[Four] Hearing comprehension in both the right and left

ears.

No. 12AP-313 7

{¶ 31} 17. On July 28, 2011, Twyla Evans, as surviving spouse, moved for R.C.

4123.57(B) scheduled loss compensation for decedent's alleged loss of use of both arms

and legs, vision and hearing. In support, Twyla Evans submitted her marriage certificate,

the death certificate, and the July 27, 2011 report of Dr. Levy.

{¶ 32} 18. Following a September 27, 2011 hearing, a DHO issued an order

denying the July 28, 2011 motion of Twyla Evans. The DHO's order explains:

Prior to a hearing on the merits, the surviving spouse's

counsel withdrew the request for the SCHEDULED LOSS OF

VISION COMPREHENSION IN BOTH EYES and

SCHEDULE[D] LOSS OF HEARING COMPREHENSION IN

BOTH EARS. Therefore, these requests are DISMISSED.

On 07/08/2011, the decedent, Glenn Evans, died. Four days

prior [to] his death, on 07/04/2011, the decedent lost

consciousness and could no longer move his legs or arms.

The surviving spouse is requesting the loss of use of both

arms and both legs due to his drastic change in health on

07/04/2011. The report of Dr. Levy dated 07/27/2011 is

presented in support of this request.

The District Hearing Officer finds that the medical evidence

is insufficient to support the requested loss of use as being

related to the allowed condition of ANGIOSARCOMA. Dr.

Levy's own report lists the following diagnoses from his

07/04/2011 examination: Dependent edema, Angiosarcoma,

fatigue, leg weakness, elevated liver function tests, anemia,

gastroesophageal reflux disease, malnutrition, status post

congestive heart failure, hearing loss, cardiac murmur, loss

of use of all four extremities, and loss of vision. Dr. Levy

went on to indicate that the Injured Worker was in a coma,

and noted that the Injured Worker had a medical history of

congestive heart failure, hypertension reflux and anorexia.

Dr. Levy does not sufficiently explain how the allowed

condition of angiosarcoma directly caused the damage to the

central nervous system that would then cause the loss of use

of all four extremities, especially in light of other conditions

the Injured Worker had. For these reasons, the District

Hearing Officer finds that the surviving spouse has not met

the requisite proof necessary to support a finding of a loss of

use of the requested four extremities.

No. 12AP-313 8

The District Hearing Officer has reviewed and considered all

evidence prior to rendering this decision.

(Emphasis sic.)

{¶ 33} 19. Twyla Evans administratively appealed the DHO's order of

September 27, 2011.

{¶ 34} 20. On November 3, 2011, at the request of counsel for Twyla Evans,

Kevin L. Trangle, M.D., issued a seven-page narrative report. Dr. Trangle wrote:

DISCUSSION OF VINYL CHLORIDE-INDUCED HEPATIC

ANGIOSARCOMA:

Hepatic angiosarcoma (HAS) is an uncommon mesenchymal

malignant neoplasm of the vascular or lymphatic

endothelium, accounting for 2% of all soft tissue sarcomas.

Angiosarcoma can affect any organ. Although primary HAS

is rare and accounts for only 2% of primary hepatic tumors,

it is the most common malignant mesenchymal tumor of the

liver.

Popper and colleagues, and Gedigt et al. have undoubtedly

provided the greatest contribution in the study of the

histogenesis and pathohistology of HAS. Vinyl chloride

monomers (VCM) are transformed by hepatic microsomal

enzymes to toxic metabolites that covalently bind to DNA.

After exposure to VCM, hepatocytic proliferation, sinusoidal

lining cell proliferation, and focal sinusoidal dilatation

occurs; this process leads to angiosarcoma from the

sinusoidal lining cells. In a typical histologic picture, there

are wide vascular spaces and systems of anastomosed vessel

canals lined with atypical endothelium, with marked

sarcomatous stroma. Mr. Evans clearly had developed HAS

secondary to his work related exposure to Vinyl Chloride.

HAS progresses rapidly; therefore, most cases are discovered

at an advanced stage, and less than 20% of the patients can

even be conceivably helped by surgery. The lack of specific

symptoms and radiological findings leads to the delay of

diagnosis resulting in the poor prognosis. Only a few patients

have been reported to survive for more than one year after

hepatic resection for HAS. HAS usually develops in the sixth

decade of life, and is more frequent in males than in females

(ratio 3:1). Mr. Evans had a classic presentation of a work

related HAS caused by VC exposure.

No. 12AP-313 9

The prognosis of HAS is dismal. Most patients die within six

months of the diagnosis. The most frequent causes of death

are hepatic failure and intraabdominal bleeding. Fifty

percent of patients develop metastases before death. Very

few patients have limited tumor at the time of diagnosis to

allow surgical resection.

Hepatic Failure (HF) as a Consequence of Hepatic

Angiosarcoma

The liver is commonly involved in metastatic disease, and the

degree of liver biochemistry derangement tends to reflect the

extent of parenchymal replacement with tumor. Hepatic

failure can develop as a consequence of primary or

metastatic liver tumors. The mechanism of liver failure is

multifactorial. Evidence suggests a combination of hepatic

ischemia leading to parenchymal infarction, vascular

occlusion of portal vein by tumor thrombi and non-occlusive

infarction of liver due to shock from secondary causes such

as sepsis or cardiac dysfunction plays an important role in

these patients. Typically, replacement of hepatocytes by

malignant cells leads to secondary necrosis of hepatocytes

with the subsequent development of liver failure.

Numerous authors have reported the development of HF in

patients with HAS. As noted above, this is usually the

terminal event associated with diffuse involvement of the

liver by the HAS.

One study conducted by Myszor et al. looked at the

association and presentation of malignant disease of the liver

with hepatic failure. The authors described three cases and

reviewed the best documented reports in the literature. Their

review of 25 patients showed that in most cases, the liver was

massively replaced by tumor that often spread in an

intrasinusoidal pattern and resulted in HF and subsequent

death.

Another study conducted by Dannaher et al. looked at 10

workers from a single vinyl chloride polymerization plant in

Louisville, Kentucky that developed HAS. Average survival

from diagnosis was about 12 months. Overt liver failure

occurred as a preterminal event and was the major cause of

death in all of the patients.

Baxter et al. studied 35 cases of HAS occurring in Great

Britain. The most common terminal event in these patients

No. 12AP-313 10

was liver failure and its attendant complications. The

duration of symptoms preceding admission to hospital was

known for over 30 cases. The median time was about five

weeks. The length of survival after admission was known for

all adults, the median time being three weeks. Only three

cases lived beyond six months after admission to hospital.

The two patients with the shortest duration of symptoms

died from hemoperitoneum.

In addition to the neoplasm itself, treatment with various

chemotherapeutic agents can contribute to further injury to

the liver. Gemcitabine represents one of these agents and it

has been shown to be hepatotoxic.

Hepatic Encephalopathy and Coma

Hepatic encephalopathy is defined as a spectrum of central

nervous system abnormalities in patients with liver

dysfunction, after exclusion of other known brain disease.

Hepatic encephalopathy is characterized by personality

changes, intellectual impairment, and a depressed level of

consciousness. The development of hepatic encephalopathy

is explained to a large extent by the effect of neurotoxic

substances which accumulate as a result of liver failure;

additionally brain edema plays a prominent role. The brain

edema of hepatic failure is attributed to increased

permeability of the blood-brain barrier, impaired

osmoregulation within the brain, and increased cerebral

blood flow. The resulting brain cell swelling and brain edema

cause loss of consciousness and eventually death.

Typically, patients subsequently become hypotensive and

tachycardic as a result of the reduced systemic vascular

resistance that accompanies hepatic failure, a pattern that is

indistinguishable from septic shock. The combination of

cerebral edema with resulting increased intracranial

pressure and systemic hypotension leads to coma and then

death.

Gastrointestinal bleeding can also contribute to the

development of hepatic encephalopathy. The presence of

blood in the upper gastrointestinal tract results in increased

ammonia and nitrogen absorption from the gut. Bleeding

may predispose to kidney hypoperfusion and impaired renal

function. These metabolic consequences lead to increased

toxic ammonium levels in the blood and even further

No. 12AP-313 11

depression of central nervous system function, loss of

consciousness and death.

ANALYSIS AND OPINION:

In the case at hand, Mr. Evans was diagnosed and treated for

vinyl chloride-induced hepatic angiosarcoma. He ultimately

died on 07/08/2011. His death certificate lists angiosarcoma

of the liver as his cause of death.

He was initially diagnosed with hepatic angiosarcoma by CT-

guided needle biopsy in July of 2010. He underwent

chemotherapy with Taxol, Sorafenib and gemcitabine. He

was admitted for liver failure following treatment with

gemcitabine. Dr. Palaparthy [sic] noted he had edema in

both legs, shortness of breath and icterus. He had elevated

liver enzymes including elevated bilirubin, ALT/AST and

alkaline phosphatase. His total protein and albumin were

significantly diminished and he had evidence of

pancytopenia. He experienced a typical side effect of

chemotherapy; namely toxic deterioration of liver function.

He subsequently had two episodes of intra-abdominal

hemorrhage requiring embolization of the hepatic artery and

blood transfusions.

His most recent abdominal CT demonstrated extensive

neoplastic infiltration of the liver with extracapsular spread

of disease and ascites. There was extensive free fluid noted

surrounding the liver, spleen and extending in the

mesenteric which was likely hemorrhagic.

He ultimately developed fulminant hepatic failure as a direct

result of the extensive neoplastic infiltration of his liver. The

repeated intraperitoneal hemorrhages and chemotherapy

also contributed to his encephalopathy. The hemorrhages

undoubtedly also led to increased blood ammonia levels. The

chemotherapeutic agents, particularly gemcitabine, caused

hepatic injury which contributed to the development of liver

failure.

The medical literature supports this as the most common

pre-terminal event in patients suffering from hepatic

angiosarcoma. The liver failure led to the development of

hepatic encephalopathy which progresses to hepatic coma

and death.

No. 12AP-313 12

While suffering from hepatic encephalopathy and profound

central nervous system depression and loss of consciousness,

he completely lost the ability to use his upper and lower

extremities as well as his ability to hear and see. This was a

direct result of a combination of the build-up of neurotoxic

substances, cerebral edema with increased intracranial

pressure, and cerebral ischemia. His level of consciousness

progressively and rapidly diminished to the point of coma.

SUMMARY/CONCLUSION:

Mr. Evans' condition of hepatic encephalopathy as noted

above resulted from a combination most likely of liver failure

with toxic metabolites circulating in the blood stream and

spilling over into the central nervous drainage system and

brain fluids due to the abnormal permeability of the blood-

brain barrier secondary to his cancer; additionally the same

process of his cancer progression led to cerebral edema.

Additionally, it is likely that Mr. Evans also had some degree

of cerebral bleeding as the liver is directly responsible for

producing coagulation factors as part of the coagulation

cascade that prevents an individual from having abnormal

bleeding and in particular intercerebral bleeding.

This sequence of events in Mr. Evans was an inexorable,

ongoing, worsening situation that had no available

treatment. It was undoubtedly a progressive and permanent

condition which advanced to the point of his death. There

was no temporary, transient or conditional aspect to his

cerebral encephalopathy, central nervous system depression

and coma.

To explain it perhaps more succinctly, the combination of

encephalopathy, cerebral edema and bleeding directly

caused a profound central nervous system depression.

Profound central nervous system depression is called coma

where there is a loss of consciousness. In addition to loss of

consciousness there is also loss of use of the extremities as

the central nervous system from the brain does control the

other parts of the central nervous system including the spinal

cord which mediates the function and motion of the

extremities. As Mr. Evans' level of central nervous system

depression became more deeply affected and his coma

continued to permanently deepen, he had permanent loss of

use of his extremities.

No. 12AP-313 13

The reason the terminology permanency is used in this

context is simply that unlike a medically induced coma for

treatment purposes, loss of consciousness due to central

nervous system depression (defined as coma) and loss of use

of extremities, are ongoing and irreversible processes with

any type of malignancy such as hepatic angiosarcoma where

there is no available treatment. The lack of viable treatment

alternatives for Mr. Evans had already been proven and

accepted. His development of coma and loss of use of his

extremities was a one-way street with unfortunately no

available or known medical intervention that could reverse

this process.

In short his permanent loss of use of his extremities was a

direct result of the combination of the buildup of neurotoxic

substances, cerebral edema, increased intracranial pressure,

cerebral ischemia and most likely even cerebral bleeding.

This was an irreversible, permanent progression of events

that led to coma which is the definition of profound central

nervous system depression with loss of consciousness; and

with concomitant inability to use his extremities on a

permanent basis. Ultimately, the cerebral pressure and other

noted factors built up to the point that the brain stem was

almost certainly compressed to the point that he could no

longer breathe and this resulted in his ultimate demise. All of

these conditions; buildup of neurotoxic substances, cerebral

edema, increased intracranial pressure, cerebral ischemia

and cerebral bleeding, hepatic failure, hepatic

encephalopathy, central nervous system depression, and

resultant permanent loss of use of his upper and lower

extremities are physical manifestations that are the direct

result of the allowed claim for hepatic angiosarcoma.

In my medical opinion, and expressed with a reasonable

degree of medical certainty, Mr. Evans succumbed and died

secondary to his work-related hepatic angiosarcoma, a claim

already allowed, and a cause of death also affirmed on his

death certificate. Furthermore, his pre-terminal state

resulted from the angiosarcoma which irreversibly and

permanently depressed the central nervous system leading to

the level of depression which resulted in permanent loss of

use of his upper and lower extremities.

No. 12AP-313 14

{¶ 35} 21. On November 17, 2011,3 at the request of relator, Joseph F. Buell, M.D.,

issued a two-page narrative report. Dr. Buell is a professor of surgery and pediatrics at

Tulane University located at New Orleans, Louisiana. In his report, Dr. Buell opines:

I am in receipt and have reviewed the medical records of Mr.

Glen[n] Evans. Mr. Evans was a retired Poly[O]ne worker

who was diagnosed with angiosaroma of the liver. I was

provided medical records for Mr. Evans, which noted his

polyvinyl exposure and identified a distant history of

smoking. After diagnosis of angiosarcoma was made, Mr.

Evans was started on a T1 inhibitor, and later treated with

taxol, gemcitabine and eventually gemzar chemotherapy.

The records noted he developed congestive heart failure

during this time frame. This claim is not supported by the

medical evidence which demonstrated his cardiac function

measure by ejection fraction was normal as measured by

cardiac ECHO. An initial occupational medical exam was

performed by Dr. Darr on 4/11/11 which reported Mr. Evans

as "fatigued." At this time Dr. Darr opinioned that Mr. Evans

had Class III impairment.

Subsequently, in June of 2011 Mr. Evans presented to the

emergency room with a rupture of his liver tumor. This was

treated with a radiologic procedure to clot the bleeding.

Often radiologic treatment of a liver tumor clots blood flow

to the tumor as well as the normal uninvolved liver. After

extensive chemotherapy and a delayed treatment of his

tumor after rupture Mr. Evans suffered liver

decompensation. Mr. Evans was examined by an orthopedic

surgeon who claimed four extremity disabilities.

After review of Mr. Evans medical records and my extensive

clinical experience with liver disease and management of

liver tumors and particularly angiosarcoma, I have

formulated the following medical opinions:

[One] There are some concerning irregularities in the

opinions and management of Mr. Evans by his physicians

during his care and hospitalizations. As examples there is

lack of clinical data i[.]e[.] cardiac ECHO, to support his

medical diagnosis of congestive heart failure and as another

3The report of Dr. Buell is incorrectly dated "November 17, 2010." It is obvious that the report is incorrectly

dated.

No. 12AP-313 15

example Mr. Evans did not receive local therapy to prevent

tumor rupture.

[Two] Mr. Evans became encephalopathic (unconscious) due

to hepatic failure. To physicians unfamiliar with the

manifestations of liver disease and decompensated liver

patients it might appear that they suffered irreversible

damaged [sic] of the central nervous system, but this is

purely a reversible condition. Noting again there was no

permanent injury resulting in loss of all four extremities.

Neither the agiosarcoma nor the treatment of the

angiosarcoma can cause permanent damage to the central

nervous system. More often than not this state of

encephalopathy is completely reversible with appropriate

medical therapy. In no way did Mr. Evans ever permanently

lose function of all four of his extremities.

[Three] An orthopedic surgeon (bone surgeon) has limited

knowledge and experience with liver failure patients let alone

management of hepatic encephalopathy. It is my opinion

that this was a flawed opinion due to the physician's lack of

knowledge.

[Four] Lastly, I have reviewed the summary report from Dr.

Trangle who quotes several historic papers. What is not

presented is the full spectrum of patient with long-term

survival. Several series document that when patients receive

aggressive therapy they can survive 2 to 3 years. I again

reiterate Mr. Evans suffered from hepatic encephalopathy

and decompensated liver disease that was not aggressively

treated. At time of his exam by an orthopedic doctor he did

not have loss of extremity use but was rather suffering from a

reversible medical condition.

{¶ 36} 22. Following a November 21, 2011 hearing, an SHO issued an order that

vacates the DHO's order of September 27, 2011 and awards 4123.57(B) scheduled loss

compensation for loss of use of both arms and legs. The SHO's order of November 21,

2011 explains:

The Staff Hearing Officer finds that applicant/surviving

spouse Twyla B. Evans has withdrawn her requests for

awards for the "loss of hearing comprehension in both ears"

and for the "loss of vision comprehension in both eyes." The

Staff Hearing Officer, therefore, orders that these requests be

dismissed.

No. 12AP-313 16

The Staff Hearing Officer finds, per the 11/03/2011 report of

Dr. Trangle and the 07/05/2011 and 07/27/2011 reports of

Dr. Levy, that decedent Glenn Evans suffered the total loss of

use of his bilateral arms and bilateral legs prior to his death

on 07/08/2011. The Staff Hearing Officer further finds that

such losses of use were the direct result of the allowed

condition "angiosarcoma" and its sequelae. Per the rationale

set forth in State, ex rel. Moorehead -v- Industrial

Commission (2006), 112 Ohio State 3d 27, 857 North East 2d

1203, the Staff Hearing Officer does not find that O.R.C.

4123.57 requires that an Injured Worker be cognizant of his

'loss of use' in order to receive compensation for same.

In the instant case, decedent Glenn Evan's [sic] comatose

condition, during which his loss of use of his arms and legs

was present, does not bar an award for same. Additionally,

the Staff Hearing Officer finds that speculation that Mr.

Evan's [sic] condition or the course of his "angiosarcoma"

might have been altered had a different treatment protocol

been adopted does not negate the fact that a loss of use of the

bilateral arms and bilateral legs existed. Finally, the Staff

Hearing Officer finds no persuasive medical evidence that

demonstrates that Mr. Evan's [sic] comatose condition and

resultant losses of use were temporary or transient (see,

State, ex rel. Carter -v- Industrial Commission, 2009 WL

3366373 (Ohio App. 10 Dist)).

The Staff Hearing Officer finds that applicant/surviving

spouse Twyla B. Evans is entitled to an award for the losses

of use described above (eight hundred and fifty weeks -

4123.57). Start date for the award is 07/05/2011 (Dr. Levy's

report). Payment to be made and processed per statute.

All evidence on file and at hearing, including the 11/17/2011

report of Dr. Buell, was reviewed and considered.

{¶ 37} 23. On December 21, 2011, another SHO mailed an order refusing relator's

administrative appeal from the SHO's order of November 21, 2011.

{¶ 38} 24. On February 22, 2012, the three-member commission, on a

unanimous vote, mailed an order denying relator's request for reconsideration.

{¶ 39} 25. On April 6, 2012, relator, PolyOne Corporation, filed this mandamus

action.

No. 12AP-313 17

Conclusions of Law:

{¶ 40} Two main issues are presented: (1) whether the commission relied upon

some medical evidence meeting the statutory requirement that the loss of use of both

arms and legs was permanent rather than temporary, and (2) whether the commission

relied upon some medical evidence showing that the allowed condition, angiosarcoma,

independently caused the permanent loss of use of Evans' four extremities.

{¶ 41} The magistrate finds: (1) there is indeed some medical evidence upon

which the commission did rely to support the statutory requirement that the loss of use

was permanent rather than temporary, and (2) there is indeed some medical evidence

upon which the commission relied showing that the allowed condition, angiosarcoma,

independently caused the permanent loss of use of Evans' four extremities.

{¶ 42} Accordingly, it is the magistrate's decision that this court deny relator's

request for a writ of mandamus, as more fully explained below.

{¶ 43} R.C. 4123.57(B) provides for weekly scheduled loss compensation for

enumerated body parts. It provides as follows:

For the loss of an arm, two hundred twenty-five weeks.

***

For the loss of a leg, two hundred weeks.

{¶ 44} The only compensable loss of use under R.C. 4123.57(B) is a permanent and

total loss of use. State ex rel. Welker v. Indus. Comm., 91 Ohio St.3d 98 (2001). An

injured worker claiming a loss of use under R.C. 4123.57(B) has the burden of showing

that his loss of use is permanent. State ex rel. Carter v. Indus. Comm., 10th Dist. No.

09AP-30, 2009-Ohio-5547, citing Welker.

{¶ 45} Two cases are instructive to the issues here. They are State ex rel.

Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364 and Carter.

Accordingly, both cases will be presented here at some length.

The Moorehead Case

{¶ 46} In Moorehead, William Moorehead fell approximately 15 to 20 feet head

first onto a concrete floor while working on a raised platform at his job site. Upon impact,

No. 12AP-313 18

he suffered severe spinal cord and other injuries. Unrebuttable evidence established that

the spinal cord injury rendered him a quadriplegic. Moorehead never regained

consciousness and died 90 minutes after the fall.

{¶ 47} Moorehead's widow applied for death benefits and also for scheduled loss

compensation based on loss of use of both arms and legs. The commission denied the

application for scheduled loss compensation, observing that scheduled loss benefits may

be awarded only to injured workers who experience both a physical and sustained loss of

use and also consciously perceive and experience the physical suffering and hardship

caused by the loss of use of a body part in the period between injury and death. The

commission stated that "the widow-claimant's application for such benefits must fail, as

the decedent did not sustain the loss of his extremities, because he was comatose, and

completely unaware of the extent of his injuries, for the brief period between the

accident and his death." Id. at ¶ 3.

{¶ 48} In Moorehead, the Supreme Court of Ohio issued a writ of mandamus,

explaining:

Similarly, there is no language in R.C. 4123.57(B) requiring

that an injured worker be consciously aware of his paralysis

in order to qualify for scheduled loss benefits. In an

analogous case the Supreme Court of New Hampshire

considered a scheduled loss application filed on behalf of a

worker whose injury left him in an irreversible vegetative

state. Corson v. Brown Prods., Inc. (1979), 119 N.H. 20, 397

A.2d 640. The application was denied administratively solely

because Corson's vegetative state made him unaware of his

loss. The New Hampshire Supreme Court vacated that

decision and awarded scheduled loss compensation, writing:

What is of paramount importance in this case is that words

such as 'awareness' or 'consciousness' cannot be added under

the guise of legislative history to a statute which clearly

states that '[t]he scheduled awards under this section accrue

to the injured employee simply by virtue of the loss or loss of

the use of a member of the body.' * * * When the language

used in a statute is clear and unambiguous, its meaning is

not subject to modification by construction." Id., 119 N.H. at

23, 397 A.2d 640.

No. 12AP-313 19

The same rule of statutory construction applies here. When

"the meaning of the statute is unambiguous and definite, it

must be applied as written and no further interpretation is

necessary." State ex rel. Savarese v. Buckeye Local School

Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d

463. R.C. 4123.57(B) does not say that compensation is

dependent upon a claimant's conscious awareness of his or

her loss, whether resulting from amputation or paralysis.

Rather, where the requisite physical loss has been sustained,

the statute directs that scheduled loss compensation shall be

paid.

This court should not graft duration-of-survival or

cognizance requirements to R.C. 4123.57(B), because the

statute has no text imposing them. Public-policy arguments

relative to the requisites of scheduled loss benefits pursuant

to R.C. 4123.57 are better directed to the General Assembly,

including arguments that a specified time of survival should

be mandated after a paralyzing injury and that a worker be

cognizant of his or her loss before loss-of-use benefits are

payable.

The appellant proffered medical evidence establishing that

William Moorehead sustained the physical loss of use of his

limbs as a result of his fall. Consciousness of that loss during

an extended period of survival is not required by R.C.

4123.57(B), and the commission therefore incorrectly

applied the statute when it denied the appellant's application

on that basis.

Id. at ¶ 16-20.

The Carter Case

{¶ 49} In Carter, the commission denied R.C. 4123.57(B) compensation for the

alleged loss of use of the upper extremities and left leg of David E. Carter, who died on

October 17, 2006 as a result of an October 14, 2006 gunshot wound to his abdomen while

employed as a night club bouncer/security guard. During Carter's hospitalization

following the gunshot wound, his right leg was surgically amputated at the knee. Also

during the period of hospitalization, Carter underwent a chemically induced paralysis

intended to be therapeutic and reversible.

No. 12AP-313 20

{¶ 50} In Carter, the commission denied compensation for the alleged loss of use

of the three extremities on grounds that the loss was not permanent, but only temporary

in nature. The commission reasoned that, had Carter survived his traumatic injury, he

would have recovered from the chemically induced paralysis and would have had full

use of the three extremities.

{¶ 51} Carter's dependent children filed a mandamus action in this court

challenging the commission's denial of compensation for the alleged loss of use of the

three extremities.

{¶ 52} While the relators conceded that the chemical paralysis was intended to be

therapeutic and reversible, they posited that the paralysis was rendered permanent by

the fact that the paralysis continued up to Carter's death. This court disagreed, stating

in its decision:

While the evidence in Moorehead showed that the decedent

had suffered permanent, albeit brief, paralysis prior to his

death, the evidence here indicates that decedent's induced

paralysis was a temporary measure designed to aid in his

recovery. There is no evidence that, but for decedent's death,

the paralysis would have been permanent.

Id. at ¶ 5.

{¶ 53} In Carter, this court adopted the magistrate's decision which further

explains this court's rationale in holding that Carter's dependents had failed to prove that

the loss of use was permanent.

{¶ 54} In the magistrate's decision adopted by the Carter court, the magistrate

relied upon the definition of "permanent" provided by the syllabus of Logsdon v. Indus.

Comm., 143 Ohio St. 508 (1944). The syllabus states:

The term 'permanent' as applied to disability under the

workmen's compensation law does not mean that such

disability must necessarily continue for the life of a claimant,

but that it will, with reasonable probability, continue for an

indefinite period of time without any present indication of

recovery therefrom.

{¶ 55} Finding the Logsdon definition of permanent to be helpful, the magistrate

explained why Carter's paralysis was temporary:

No. 12AP-313 21

In the magistrate's view, the court's discussion of the

meaning of the term "permanent" in DaimlerChrysler is

helpful to the resolution of relator's claim that decedent's

death turned a temporary paralysis into a permanent one.

The determination of whether a condition is temporary or

permanent, of necessity, involves a determination of the

probable future status of the condition based upon current

medical information. It is not a determination to be made

from hindsight, but a determination of reasonable

probability as to the future. State ex rel. Matlack, Inc. v.

Indus. Comm. (1991), 73 Ohio App.3d 648, 658, 598, N.E.2d

121 ("[C]ourts have held that the permanency is not gauged

on the basis of hindsight.").

Thus, the relevant inquiry as to whether the chemically-

induced paralysis was temporary or permanent is premised

upon events at the time that the paralysis was chemically

induced, not upon the hindsight view after decedent's death.

Id.

Id. ¶ 57-59.

The First Issue: Was the loss of use permanent?

{¶ 56} Here, relying upon this court's decision in Carter, relator argues that Evans'

death, some four days after Dr. Levy's in-home examination, rendered temporary the

observed loss of use of the extremities.

{¶ 57} Clearly, this court's analysis and rationale in the Carter case does not

compel relator's conclusion that Evans' loss of use was temporary rather than

permanent. That is, relator's reliance upon Carter is misplaced.

{¶ 58} As indicated by the medical evidence upon which the commission relied,

Evans' loss of use was the medically expected result of his angiosarcoma of the liver.

Unlike Carter's situation, Evans' loss of use was not chemically induced. Evans' loss of

use was not in anyway therapeutic. Rather, Evans' loss of use was the natural

consequence of his angiosarcoma. Thus, unlike Carter's temporary paralysis, Evans' loss

of use was permanent because it was expected to last, and did last, until Evans' death.

No. 12AP-313 22

{¶ 59} Here, relying upon the report of its own medical expert, Dr. Buell, relator

posits that Evans' loss of use of his four extremities during the days prior to his death

was not permanent, but temporary. Dr. Buell opined:

Neither the angiosarcoma nor the treatment of the

angiosarcoma can cause permanent damage to the central

nervous system. More often than not this state of

encephalopathy is completely reversible with appropriate

medical therapy. In no way did Mr. Evans ever permanently

lose function of all four of his extremities.

{¶ 60} Relator's reference to Dr. Buell's report to support its contention that Evans'

loss of use was temporary is problematic given that the commission did not find the

report worthy of its reliance.

{¶ 61} Dr. Buell's opinion was directly contradicted by the reports of Drs. Levy

and Trangle upon whom the commission did rely.

In his seven-page narrative report, dated July 27, 2011, Dr. Levy states:

The patient does have permanent loss of use of various body

parts as statutorily determined. Mr. Evans had no functional,

meaningful or volitional use of either of his arms or legs. All

four limbs can be considered to have no functional use. For

actual practical purposes he has permanently lost the use

through the central nervous system dysfunction he has of

any extremity movement or activity.

{¶ 62} In his seven-page narrative report dated November 3, 2011, Dr. Trangle

states:

To explain it perhaps more succinctly, the combination of

encephalopathy, cerebral edema and bleeding directly

caused a profound central nervous system depression.

Profound central nervous system depression is called coma

where there is a loss of consciousness. In addition to loss of

consciousness there is also loss of use of the extremities as

the central nervous system from the brain does control the

other parts of the central nervous system including the spinal

cord which mediates the function and motion of the

extremities. As Mr. Evans' level of central nervous system

depression became more deeply affected and his coma

continued to permanently deepen, he had permanent loss of

use of his extremities.

No. 12AP-313 23

{¶ 63} Clearly, the reports of Drs. Levy and Trangle, upon which the commission

relied provide the some evidence needed to support the commission's finding that Evans'

loss of use of his four extremities was permanent, thus satisfying the statutory

requirement for compensation.

The Second Issue: Causation

{¶ 64} As earlier noted, relator contends that Evans' loss of use of his four

extremities during the days preceding his death were caused in part by non-allowed

conditions and thus the loss of use is not compensable.

{¶ 65} Relator points out that the DHO, following the September 27, 2011

hearing, found that "Dr. Levy does not sufficiently explain how the allowed condition of

angiosarcoma directly caused the damage to the central nervous system that would then

cause the loss of use of all four extremities."

{¶ 66} Relator points out here, as did the DHO in his order, that Dr. Levy listed

multiple "diagnoses" in his July 27, 2011 report.

{¶ 67} It can be noted that the SHO's order of November 21, 2011 vacates the

DHO's order of September 27, 2011 and awards compensation based upon Dr. Levy's

July 27, 2011 report that the DHO found to be problematical. Also, the SHO's order

relies upon the November 3, 2011 report of Dr. Trangle that issued after the DHO's

decision.

{¶ 68} Of course, it should be understood that the November 21, 2011 hearing

before the SHO was de novo. Thus, it was within the SHO's discretion to reject the

DHO's view of Dr. Levy's July 27, 2011 report and to rely upon the report to support an

award. That is, the DHO's rejection of Dr. Levy's report was not binding on the SHO.

{¶ 69} A claimant must always show the existence of a direct and proximate

causal relationship between his or her industrial injury and the claimed disability. State

ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). Non-allowed medical

conditions cannot be used to advance or defeat a claim for compensation. Id. The mere

presence of a non-allowed condition in a claim for compensation does not in itself

destroy the compensability of the claim, but the claimant must meet his burden showing

that an allowed condition independently caused the disability. State ex rel. Bradley v.

Indus. Comm., 77 Ohio St.3d 242 (1997).

No. 12AP-313 24

{¶ 70} In his July 27, 2011 report, Dr. Levy could not be clearer that the

angiosarcoma independently caused the loss of use of all four extremities during the

days prior to death:

At the time that he was evaluated, Mr. Glenn Evans was a 74-

year-old gentleman with a diagnosis of angiosarcoma of the

liver, a result of an occupational environmental exposure

sustained in the course of his employment. * * * Before I had

evaluated him, Mr. Evans was found also to have a medical

history of congestive heart failure, hypertension, reflux and

anorexia, among his other conditions.

***

Coma is defined as a profound state of deep

unconsciousness. It affects any individual's ability to interact

with the surrounding environment. In this particular case it

is the direct sequelae of the obfundation and deep

unconsciousness caused by his progress fatal cancer. The

cancer caused a cascade of events leading to metabolic

derangement, lack of oxygenation and in general lack of the

necessary physiologic mechanisms sufficient to sustain

conscious awareness and bodily function.

{¶ 71} In his November 3, 2011 report, Dr. Trangle could not be clearer that the

angiosarcoma independently caused the loss of use of all four extremities during the days

prior to death:

[H]is permanent loss of use of his extremities was a direct

result of the combination of the buildup of neurotoxic

substances, cerebral edema, increased intracranial pressure,

cerebral ischemia and most likely even cerebral bleeding.

This was an irreversible, permanent progression of events

that led to coma which is the definition of profound central

nervous system depression with loss of consciousness; and

with concomitant inability to use his extremities on a

permanent basis. Ultimately, the cerebral pressure and other

noted factors built up to the point that the brain stem was

almost certainly compressed to the point that he could no

longer breathe and this resulted in his ultimate demise. All of

these conditions; buildup of neurotoxic substances, cerebral

edema, increased intracranial pressure, cerebral ischemia

and cerebral bleeding, hepatic failure, hepatic

encephalopathy, central nervous system depression, and

resultant permanent loss of use of his upper and lower

No. 12AP-313 25

extremities are physical manifestations that are the direct

result of the allowed claim for hepatic angiosarcoma.

{¶ 72} Based on the forgoing analysis, the magistrate concludes that the

commission relied upon some evidence supporting a finding that the allowed condition,

angiosarcoma, independently caused the loss of use of all four extremities.

{¶ 73} Accordingly, for all the above reasons, it is the magistrate's decision that

this court deny relator's request for a writ of mandamus.

/S/ MAGISTRATE

KENNETH W. MACKE

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).