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State ex rel Hicks v. Industrial Commission of Ohio10/20/2005
(REGULAR CALENDAR)
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
{ } Relator, Oris M. Hicks, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying him R.C. 4123.57(B) compensation for the alleged loss of use of the left leg, and to enter an order granting said compensation.
{ } This matter was referred to a court-appointed magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, and recommended that this court deny relator's request for a writ of mandamus. (Attached as Appendix A.) Relator has filed objections to the magistrate's decision.
{ } Relator presents four objections. Relator first asserts that the magistrate erred in concluding that the "functional" loss of use of his left leg was insufficient to support an award for the total loss of use of his leg. Relator contends this standard is inconsistent with State ex rel. Alcoa Bldg. Products v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, in which the court found that awards, pursuant to R.C. 4123.57(B), may compensate for a "loss" when there has been a loss of use of a body member "for all practical purposes." However, the magistrate never found that the functional loss of use of relator's leg was insufficient to support an award under R.C. 4123.57(B). Rather, the magistrate's discussion of "functional loss" was merely a part of her discussion of two Ohio Supreme Court cases issued pre-Alcoa. Later in the decision, the magistrate specifically acknowledged the "for all practical purposes" standard in Alcoa but found that Dr. Donald Tosi opined relator had only a 30 percent reduction in the use of his leg, and Dr. Susheel Kakde concluded relator had not suffered a complete loss of use of his leg. We agree that neither Dr. Tosi's nor Dr. Kakde's opinion can be interpreted to be equivalent to a finding that relator had lost use of his leg "for all practical purposes." Therefore, this objection is without merit.
{ } Relator next asserts that the magistrate erred in finding that Dr. Tosi observed that he "walked, albeit slowly and with a knee brace, into the exam room." Dr. Tosi actually stated in his report: "The Injured Worker 's gait was slow. He required the assistance of a cane. He uses a motorized wheelchair. He stated, 'I got a big electric scooter that I use.' He also wears a left leg brace." Relator maintains that "gait" can mean different things, including merely dragging the leg without actual independent movement of the leg itself. However, we do not find the magistrate's description of Dr. Tosi's statement erroneous, given Dr. Tosi's later statement in his report that relator "is able to walk with the use of a brace." Although relator contends that Dr. Tosi did not identify any independent movement or strength in his leg, that Dr. Tosi found only a 30 percent reduction in the use of his leg would indicate Dr. Tosi was not of the opinion that his leg was without any movement or strength. Therefore, this objection is without merit.
{ } Relator next argues that the magistrate erred in concluding that the use of artificial devices, such as a leg brace and cane, constitutes use of the leg. Relator objects to the magistrate's finding that "both doctors, upon whose reports the commission relied, stated that relator could ambulate with the aid of a brace and cane and both opined that he did not suffer a total loss of use." Relator maintains that the use of a prosthetic device does not preclude a finding of loss of use for all practic
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