The opinion
[Cite as SER R.R. Donnelley & Sons Co. v. Indus. Comm., 2022-Ohio-4774.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. R.R. Donnelley & Sons Co., :
Relator, : No. 21AP-119
v. : (REGULAR CALENDAR)
The Industrial Commission of Ohio et al., :
Respondents. :
DECISION
Rendered on December 29, 2022
On brief: Kegler, Brown, Hill & Ritter, Randall W. Mikes,
and David M. McCarty for relator R.R. Donnelley & Sons Co.
On brief: Dave Yost, Attorney General, and Douglas R.
Unver for respondent Industrial Commission of Ohio.
On brief: Scott W. Schiff & Associates, Co., and Kurt A.
Knisley for respondent Linda E. Brokaw.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
MENTEL, J.
{¶ 1} Relator, R.R. Donnelley & Sons Co., brought this original action seeking a
writ of mandamus ordering respondent, Industrial Commission of Ohio ("Commission"), to
vacate its order awarding scheduled loss benefits under R.C. 4123.57(B) to respondent,
Linda E. Brokaw and denying relator's request to terminate temporary total disability
("TTD") for Ms. Brokaw's failure to reach maximum medical improvement ("MMI").
Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter
was referred to a magistrate.
No. 21AP-119 2
{¶ 2} As reflected in the facts given in the magistrate's decision, Ms. Brokaw was
injured on October 17, 2017, during the course of employment with her employer and a TTD
claim was allowed for a number of conditions, the most pertinent here being those to her
right shoulder and right upper extremity. Employer filed to terminate the TTD benefit on
August 13, 2020. A subsequent medical report opined that Ms. Brokaw had not reached
MMI because no intrathecal therapy for pain had yet been attempted. After administrative
hearings, the Commission affirmed an order granting Ms. Brokaw's motion for scheduled
loss of use of her right arm and finding, based on several medical reports, that she had lost
functional use of her right upper extremity. In addition, the order granted her request to
authorize treatment with intrathecal pain medication in an attempt to relieve the pain that
affected her right upper extremity. The order also denied the employer's motion to
terminate TTD based on a finding of MMI. The magistrate's decision attached below
provides a more detailed description of the medical and procedural history of the claim.
{¶ 3} After exhausting the administrative appeal process, employer filed a
complaint for a writ of mandamus. The magistrate has rendered a decision that includes
findings of fact and conclusions of law. He recommends denying employer's request for a
writ of mandamus. Employer has filed objections to the magistrate's decision.
{¶ 4} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the
objected matters "to ascertain that the magistrate has properly determined the factual issues
and appropriately applied the law." A relator seeking a writ of mandamus must establish:
" '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon respondent to
perform the act requested, and (3) that relator has no plain and adequate remedy in the
ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police & Firemen's Disability
& Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting State ex rel. Consol. Rail
Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear legal right exists when a
[commission] abuses its discretion by entering an order which is not supported by 'some
evidence.' " Id.
{¶ 5} This court will not determine that the Commission abused its discretion when
there is some evidence in the record to support the Commission's finding. State ex rel.
Rouch v. Eagle Tool & Machine Co., 26 Ohio St.3d 197, 198 (1986); State ex rel. Barnett v.
Indus. Comm. of Ohio, 10th Dist. No. 14AP-628, 2015-Ohio-3898, ¶ 9. The "some evidence"
No. 21AP-119 3
standard "reflects the established principle that the commission is in the best position to
determine the weight and credibility of the evidence and disputed facts." State ex rel.
Woolum v. Indus. Comm., 10th Dist. No. 02AP-780, 2003-Ohio-3336, ¶ 4, citing State ex
rel. Pavis v. Gen. Motors Corp., 65 Ohio St.3d 30, 33 (1992).
{¶ 6} Employer's first objection states: "The Magistrate erred in finding that the
September 1, 2020 report of Dr. McDowell was 'some evidence' to support a conclusion that
additional treatment could improve the function of Claimant's right arm but not to the
extent to defeat a finding of total loss of use of that arm." (Apr. 21, 2022 Am. Objs. at 4.)
The magistrate summarized and responded to employer's argument as follows:
The employer asserts that the SHO erred as a matter of law in
awarding a permanent loss of use of the right arm while at the
same time finding that additional treatment provided the
potential for improved function of the same arm. The employer
points out that there was no evidence that addresses or
supports a conclusion that any functional improvement
afforded by the intrathecal injections will fall short of the type
of functional improvement that would nullify the finding of a
total loss of use. Without such evidence, the employer claims,
the conclusion of a permanent and total loss of function
sufficient to award scheduled loss benefits cannot legally
coexist with a conclusion of an opportunity for increased
function sufficient to defeat a finding of MMI.
The magistrate finds the employer's arguments without merit.
There is no necessary contradiction with the SHO's
simultaneously finding a permanent loss of use of claimant's
right arm while also continuing to pay TTD based on claimant's
not having reached MMI due to the granting of intrathecal
injections and potential for improved functioning. These
findings may coexist, and the employer cites no authority that
they are mutually exclusive. Claimant could still qualify for the
permanent loss of use of her arm even if the possibility existed
that she could gain some level of function through further
treatment. Claimant could also continue to qualify for TTD
compensation if she had not achieved MMI due to the fact that
she had not reached a treatment plateau and there still existed
the possibility of functional change based on further treatment.
(Apr. 7, 2022 Mag.'s Decision at 8.)
{¶ 7} Nor has employer, in its argument supporting the foregoing objection,
pointed to any authority to support its assertion that the two findings—one, that additional
No. 21AP-119 4
treatment could improve the function of Ms. Brokaw's right arm, and two, that she suffered
a permanent loss of use of that arm—are mutually exclusive, and that a finding of the latter
"defeat[s]" the former. (Apr. 21, 2022 Am. Objs. at 4.)
{¶ 8} The Ohio Administrative Code defines "maximum medical improvement" as:
a treatment plateau (static or well-stabilized) at which no
fundamental functional or physiological change can be
expected within reasonable medical probability in spite of
continuing medical or rehabilitative procedures. An injured
worker may need supportive treatment to maintain this level of
function.
Ohio Adm.Code 4121-3-32(A)(1).
{¶ 9} Treatment notes from an August 31, 2020 visit state that "[c]ompared to the
last visit the pain is worse" and "continuous." (Aug. 31, 2020 Office Note, SR 38.)
Dr. McDowell later opined: "I do not believe that this injured worker has reached MMI, as
she has not tried intrathecal therapy." (Sep. 1, 2020 Report of Dr. McDowell SR 41.) Thus,
the report is some evidence upon which the Commission could base its conclusion that
Ms. Brokaw had not reached MMI.
{¶ 10} Employer also asserts that in this report "Dr. McDowell indicated that
Claimant could not be deemed MMI until she underwent the intrathecal injections.
Nowhere in this report does he indicate that these injections will improve her function to
any degree. For the hearing officer to conclude otherwise requires that he impermissibly
come to his own medical conclusion." (Apr. 21, 2022 Am. Objs. at 10.)
{¶ 11} But the office notes for the August 31, 2020 visit indicate the report was
prepared to expressly opine that the intrathecal injections "could give her significant pain
relief that improves her function." (Aug. 31, 2020 Office Note, SR 40.) Employer's assertion
otherwise is incorrect, as is its assertion that Dr. McDowell's report "is simply not 'some
evidence' to support a finding that the injections will improve Claimant's function at all, let
alone an extent which does not contradict the finding of total loss of use." (Apr. 21, 2022
Am. Objs. at 10.) The first objection is overruled.
{¶ 12} Employer's second objection states: "The Magistrate erred in presuming a
basis for the staff hearing officer's decision which was not stated in the order." (Apr. 21,
2022 Am. Objs. at 4.) More specifically, employer argues: "The hearing officer did not state
No. 21AP-119 5
in his order the reasoning assumed by the Magistrate, that being that this alleged
improvement would amount to anything more than residual functioning." (Apr. 21, 2022
Am. Objs. at 11.) Although not specified by employer, we presume that its objection refers
to the following statement by the magistrate, as it is the only instance of the SHO's reasoning
the magistrate mentions that employer has quoted (with underlining for emphasis) in its
objections: "The commission was within its discretion to conclude that claimant's
functioning could improve with intrathecal injections yet never improve beyond residual
functioning, which would still qualify her loss of use as permanent and complete." (Apr. 7,
2022 Mag.'s Decision at 8.)
{¶ 13} Contrary to employer's objection, the SHO did state in the order the
reasoning the magistrate references: "It is found [that] the Injured Worker does remain
temporarily and totally disabled from the physical conditions allowed in this claim. This is
based primarily on the granting of the intrathecal injections [on] this date, and the potential
for improved functioning. This is supported by the 09/01/2020 report of Dr. McDowell."
(Jan. 19, 2021 SHO Order, SR 67.) Thus, employer is incorrect that the magistrate assumed
a reasoning process not specifically stated in the order. The second objection is overruled.
{¶ 14} Following our independent review, pursuant to Civ.R. 53, we find that the
magistrate has properly determined the pertinent facts and applied the salient law to them.
Accordingly, the objections to the magistrate's decision are overruled and we adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny the request for a
writ of mandamus.
Objections overruled; writ denied.
BEATTY BLUNT and McGRATH, JJ., concur.
_________________
No. 21AP-119 6
A P P E N D I X
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. :
R.R. Donnelley & Sons Company,
:
Relator,
:
v. No. 21AP-119
:
Industrial Commission of Ohio et al., (REGULAR CALENDAR)
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on April 7, 2022
Kegler, Brown, Hill & Ritter, Randall W. Mikes, and
David M. McCarty, for relator.
Dave Yost, Attorney General, and Cynthia Albrecht, for
respondent Industrial Commission of Ohio.
Scott W. Schiff and Associates, Co., and Kurt A. Knisley, for
respondent Linda E. Brokaw.
IN MANDAMUS
{¶ 15} Relator, R.R. Donnelley & Sons Company ("employer"), has filed this original
action requesting this court issue a writ of mandamus ordering respondent Industrial
Commission of Ohio ("commission") to vacate its order that awarded scheduled loss
No. 21AP-119 7
benefits, pursuant to R.C. 4123.57(B), to respondent Linda E. Brokaw ("claimant") and
denied the employer's request to terminate temporary total disability ("TTD") due to her
failure to reach maximum medical improvement ("MMI").
Findings of Fact:
{¶ 16} 1. Claimant was injured on October 17, 2017, during the course of her
employment with the employer, and her claim was allowed for the following conditions:
right shoulder sprain; right shoulder arthrofibrosis; chronic regional pain syndrome of the
right upper extremity; substantial aggravation of major depressive disorder, recurrent,
severe, without psychotic features; substantial aggravation of pre-existing unspecified
anxiety disorder; and loss of use of right upper extremity. Subsequently, claimant was
granted TTD compensation.
{¶ 17} 2. On April 7, 2020, Donato Borrillo, M.D., issued a report.
{¶ 18} 3. On April 20, 2020, Dr. Borrillo issued a report.
{¶ 19} 4. On May 14, 2020, Gladstone McDowell, M.D., issued a report.
{¶ 20} 5. On May 29, 2020, Gerald Steiman, M.D., issued a report.
{¶ 21} 6. On July 1, 2020, claimant filed a motion for scheduled loss of use of her
right arm.
{¶ 22} 7. On July 24, 2020, claimant requested authorization for a trial of intrathecal
pain medication.
{¶ 23} 8. On August 7, 2020, Dr. Steiman issued a report.
{¶ 24} 9. On August 13, 2020, the employer filed a motion to terminate TTD.
{¶ 25} 10. On September 1, 2020, Dr. McDowell issued a report, in which he
indicated that claimant had not reached MMI, as she has not tried intrathecal therapy for
pain. Dr. McDowell opined that claimant could not be labeled as MMI when there are safe
and effective pain-management measures that can be attempted, and intrathecal pain
management must be tried before the patient can be labeled MMI.
{¶ 26} 11. On September 5, 2020, Dr. Borrillo issued a report.
{¶ 27} 12. On November 5, 2020, a hearing was held before a district hearing officer
("DHO"), and in an order mailed November 17, 2020, the DHO found, in pertinent part,
No. 21AP-119 8
the following: (1) claimant's request for trial of intrathecal pain medication is granted; (2)
claimant's request for scheduled loss of use award is granted; (3) as a result of the allowed
conditions, claimant has sustained a permanent loss of use of the right upper extremity for
all practical intents and purposes, due to the allowed conditions, based on the April 7 and
September 5, 2020, reports of Dr. Borrillo; and (4) the employer's motion to terminate TTD
is granted, based on claimant's reaching MMI, in that her condition will, with reasonable
probability, continue for an indefinite period of time that the claimant has reached a
treatment plateau at which no fundamental, functional, or physiological change can be
expected, based on the August 7, 2020, report of Dr. Steiman. Both parties appealed.
{¶ 28} 13. On January 19, 2021, a hearing was held before a staff hearing officer
("SHO"), and in an order mailed January 22, 2021, the SHO found, in pertinent part, the
following: (1) claimant's motion for scheduled loss of use of right arm is granted;
(2) claimant has, for all practical purposes, lost functional use of her right upper extremity
due to the allowed conditions, based on the April 7, 2020, report of Dr. Borrillo and the
August 7, 2020, report of Dr. Steiman; (3) claimant's July 24, 2020, request for
authorization for a trial of intrathecal pain medication is granted, as it is medically
reasonable, necessary, and an appropriate form of treatment in the attempt to provide relief
from the complex regional pain syndrome condition of the right upper extremity, based on
the May 14 and September 1, 2020, reports of Dr. McDowell; (4) the employer's motion to
terminate TTD based upon MMI is denied; and (5) claimant remains TTD from the allowed
physical conditions, based primarily on the granting of the intrathecal injections this date
and the potential for improved functioning, based on the September 1, 2020, report of Dr.
McDowell.
{¶ 29} 14. The employer filed an appeal of the SHO's order, which the commission
refused on February 10, 2021.
{¶ 30} 15. The employer filed a request for reconsideration, which the commission
denied in an order mailed March 11, 2021.
{¶ 31} 16. On March 24, 2021, the employer filed a complaint in mandamus.
No. 21AP-119 9
Conclusions of Law and Discussion:
{¶ 32} The magistrate recommends this court deny claimant's request for a writ of
mandamus.
{¶ 33} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of law.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 34} A clear legal right to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order that is not supported by any
evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On
the other hand, where the record contains some evidence to support the commission's
findings, there has been no abuse of discretion and mandamus is not appropriate. State ex
rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of
credibility and the weight to be given evidence are clearly within the discretion of the
commission as fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 35} TTD compensation awarded pursuant to R.C. 4123.56 is compensation for
wages lost where a claimant's injury prevents a return to the former position of
employment. Upon that predicate, TTD compensation shall be paid to a claimant until one
of four things occurs: (1) the claimant has returned to work; (2) the claimant's treating
physician provides a written statement that the claimant is able to return to the former
position of employment; (3) work within the physical capabilities of the claimant is made
available by the employer or another employer; or (4) the claimant has reached maximum
medical improvement. R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio
St.2d 630 (1982).
{¶ 36} R.C. 4123.57(B) authorizes scheduled compensation to a claimant for the
total loss of a body part, such as the total loss of an arm or leg. "Loss" within the meaning
of the statute includes not only amputation, but also the loss of use of the affected body
part. State ex rel. Wyrick v. Indus. Comm., 138 Ohio St.3d 465, 2014-Ohio-541, ¶ 10, citing
State ex rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364.
{¶ 37} To qualify for compensation under R.C. 4123.57(B), the loss of use need not
be absolute if the claimant has "suffered the permanent loss of use of the injured bodily
No. 21AP-119 10
member for all practical intents and purposes." Id., citing State ex rel. Alcoa Bldg. Prods. v.
Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, ¶ 12. However, a claimant may qualify
for a total loss of use award under R.C. 4123.57(B) even if the body part retains some
residual function. State ex rel. Varney v. Indus. Comm., 143 Ohio St.3d 181, 2014-Ohio-
5510, ¶ 16, citing Alcoa Bldg. Prods. "[T]he pivotal question is how much function remains."
State ex rel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, 2011-Ohio-530, ¶ 15. In Alcoa Bldg.
Prods., the Supreme Court of Ohio noted that evidence indicated the claimant continued to
use what remained of his impaired limb for some minor functions: pushing open a car door,
and tucking paperwork between the upper arm and chest; however, these minor residual
functions did not preclude a scheduled award. Id. at ¶ 6.
{¶ 38} An injured worker claiming loss of use under R.C. 4123.57(B) bears the
burden of showing that the loss of use is complete and permanent. State ex rel. Carter v.
Indus. Comm., 10th Dist. No. 09AP-30, 2009-Ohio-5547.
{¶ 39} Ohio Adm.Code 4121-3-32(A)(1) provides the definition of MMI for workers'
compensation purposes:
"Maximum medical improvement" is a treatment plateau
(static or well-stabilized) at which no fundamental functional
or physiological change can be expected within reasonable
medical probability in spite of continuing medical or
rehabilitative procedures. An injured worker may need
supportive treatment to maintain this level of function.
{¶ 40} In State ex rel. DaimlerChrysler Corp. v. Indus. Comm., 121 Ohio St.3d 341,
2009-Ohio-1219, the Supreme Court of Ohio discussed in detail the concept of permanency
with regard to MMI in the context of a TTD case:
As early as 1944, this court articulated a definition of
permanency that foreshadowed the definition of MMI now in
the Administrative Code. Logsdon v. Indus. Comm. (1944),
143 Ohio St. 508, 28 O.O. 429, 57 N.E.2d 75, held at paragraph
two of the syllabus:
"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."
No. 21AP-119 11
Common to both Logsdon and Ohio Adm.Code 4121-3-
32(A)(1) is a probable lack of improvement, which, in the
context of the Administrative Code definition, clearly refers to
the underlying medical condition. * * *
* * * In Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio
St. 3d 31, 33, 25 Ohio B. 26, 494 N.E.2d 1125, we held:
"[I]n the consideration of the permanency of a disability, the
commission need not determine whether the claimant could
return to his former position of employment. The
commission's designation of a disability as permanent relates
solely to the perceived longevity of the condition at issue. It
has absolutely no bearing upon the claimant's ability to
perform the tasks involved in his former position of
employment."
Vulcan was followed by State ex rel. Gen. Am. Transp. Corp.
v. Indus. Comm. (1990), 48 Ohio St. 3d 25, 548 N.E.2d 928.
General American reaffirmed Vulcan's definition, explaining
that "[a] claimant's permanent inability to return to his
former position of employment does not mean the claimant's
medical condition will not improve." Id. at 26.
At approximately the same time, the Court of Appeals for
Franklin County decided State ex rel. Matlack, Inc. v. Indus.
Comm. (1991), 73 Ohio App. 3d 648, 655, 598 N.E.2d 121,
which ruled:
"[T]emporary total benefits will be paid during the healing
and treatment period for the condition until the claimant has
reached some certain level of stabilization. When this
stabilization has been reached and no further improvement is
probable, then the condition is permanent * * *." (Citation
omitted.)
In State ex rel. Youghiogheny & Ohio Coal Co. v. Kohler
(1990), 55 Ohio St.3d 109, 110, 564 N.E.2d 76, we stated that
"[p]ermanency relates to the perceived longevity of the
condition" and treated "permanency" and "MMI" as
synonymous. State ex rel. Eberhardt v. Flxible Corp. (1994),
70 Ohio St.3d 649, 653, 640 N.E.2d 815, added that "so long
as the claimant's condition has not stabilized, and further
medical improvement can be expected, TTD benefits are
payable."
No. 21AP-119 12
In contrast to these cases, Chrysler points to State ex rel.
Advantage Tank Lines v. Indus. Comm., 107 Ohio St.3d 16,
2005 Ohio 5829, 836 N.E.2d 550. At issue was the claimant's
ability to concurrently receive permanent partial and
temporary total compensation for the same condition. The
employer argued that it was incongruous to simultaneously
pay compensation for both permanent and a temporary
disability for the same condition.
We affirmed the ability to receive dual payment under the
right circumstances. We explained that the two forms of
compensation focused on completely different things: while
temporary total disability compensation centered on the
claimant's ability to return to the former position of
employment, permanent partial disability compensation was
unconcerned with a claimant's ability to work. We also noted
that "permanency" had a different meaning as applied to each
form of compensation. In describing permanency in the
context of temporary total disability, we wrote:
"TTC awards are based exclusively on a claimant's ability to
return to his or her former position of employment. In this
context, a determination that a disability is permanent means
that the condition will never improve to the point where the
claimant can resume his or her former job. Thus, when this
determination is made, the disability is no longer considered
temporary, so TTC is terminated." (Emphasis sic; citations
omitted.) Advantage Tank Lines, 107 Ohio St.3d 16, 2005
Ohio 5829, 836 N.E.2d 550, P 8.
Chrysler cites this passage as proof that "permanency" and
"MMI" remain distinct and that temporary total disability
compensation must cease if either of those conditions is met.
The court of appeals rejected that contention:
"Although Advantage does contain dicta that seems to
support relator's argument, Advantage did not directly
address the issue presented here. We agree with the
magistrate that the issue before us was directly addressed in
Vulcan wherein the court expressly held that '[t]he
commission's designation of a disability as permanent relates
solely to the perceived longevity of the condition at issue. It
has absolutely no bearing upon the claimant's ability to
perform the tasks involved in his former position of
employment.' Vulcan [25 Ohio St.3d] at 33 [25 OBR 26, 494
No. 21AP-119 13
N.E.2d 1125]. Although Advantage was decided after Vulcan,
the court in Advantage did not discuss, let alone overrule,
Vulcan. Moreover, as previously noted, the language relator
relies on in Advantage is dicta. The holding in Vulcan is
controlling." Franklin App. No. 06AP-968, 2007 Ohio 4799,
at P 4.
Id. at ¶ 9-24.
{¶ 41} In the present case, the employer does not dispute that there was some
evidence to support the SHO's finding that claimant has, for all practical purposes, lost
functional use of her right upper extremity due to the allowed conditions. The employer
also does not dispute there was some evidence to support the ongoing payment of TTD
based upon the claimant's having not reached MMI due to the granting of intrathecal
injections and the potential for improved functioning. Instead, the employer argues that,
under Ohio law, a finding of permanency sufficient to award a total loss of use cannot
coexist with a finding that additional treatment could improve the function of the body part
at issue. The employer asserts that the SHO erred as a matter of law in awarding a
permanent loss of use of the right arm while at the same time finding that additional
treatment provided the potential for improved function of the same arm. The employer
points out that there was no evidence that addresses or supports a conclusion that any
functional improvement afforded by the intrathecal injections will fall short of the type of
functional improvement that would nullify the finding of a total loss of use. Without such
evidence, the employer claims, the conclusion of a permanent and total loss of function
sufficient to award scheduled loss benefits cannot legally coexist with a conclusion of an
opportunity for increased function sufficient to defeat a finding of MMI.
{¶ 42} The magistrate finds the employer's arguments without merit. There is no
necessary contradiction with the SHO's simultaneously finding a permanent loss of use of
claimant's right arm while also continuing to pay TTD based on claimant's not having
reached MMI due to the granting of intrathecal injections and potential for improved
functioning. These findings may coexist, and the employer cites no authority that they are
necessarily mutually exclusive. Claimant could still qualify for the permanent loss of use of
her arm even if the possibility existed that she could gain some level of function through
further treatment. Claimant could also continue to qualify for TTD compensation if she had
No. 21AP-119 14
not achieved MMI due to the fact that she had not reached a treatment plateau and there
still existed the possibility of functional change based on further treatment. The
commission was within its discretion to conclude that claimant's functioning could improve
with intrathecal injections yet never improve beyond residual functioning, which would still
qualify her loss of use as permanent and complete. See Alcoa Bldg. Prods. (a claimant may
qualify for a total loss of use award under R.C. 4123.57(B) even if the body part retains some
residual function). This is particularly true given Dr. McDowell indicated in his September
1, 2020, report that the intrathecal injections were for pain management and not to improve
any underlying physical condition. Also, neither Dr. McDowell nor any other medical
provider opined that the intrathecal injections would alleviate claimant's allowed
conditions to such a degree that they would not be permanent or complete. Based on the
medical evidence, the commission could reasonably conclude that any pain relief from the
injections could improve her functioning to a certain degree, but never to the point where
the remaining function was above the threshold for the loss to still be deemed complete and
permanent. Therefore, the commission had some evidence to support both a loss of use
award and the continuance of TTD, and these two findings are capable of being reconciled
and not necessarily contradictory.
{¶ 43} Accordingly, it is the magistrate's decision that this court should deny the
employer's petition for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
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).