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State ex rel Hicks v. Industrial Commission of Ohio10/20/2005
unter balance which he would have to drag behind if it were not for the aid of the brace. However, as stated previously, 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. In Alcoa, at , the commission relied upon the report of Dr. Perkins who opined as follows:
"It is my belief that given the claimant's residual hyper-sensitivity, pain, and tenderness about his left distal forearm, that he is unable to use his left upper limb at all and he should be awarded for the loss of use of the entire left upper limb given his symptoms. He has been given in the past loss of use of the hand, but really he is unable to use a prosthesis since he has had the amputation, so virtually he is without use of his left upper limb * * *."
{ } While this case may be a close call, the magistrate finds that the commission did not abuse its discretion by relying upon the medical reports of Drs. Tosi and Kakde. Inasmuch as credibility and weight of evidence are clearly within the discretion of the commission as fact finder, Teece, the magistrate does not find an abuse of discretion in this case. In Alcoa, the commission relied on a doctor who opined that the claimant had a total loss of use and, in the present case, the commission relied on doctors who opined that relator did not suffer a total loss of use.
{ } Based on the foregoing, it is the magistrate's decision that relator has not demonstrated that the commission abused its discretion in denying him a total loss of use award relative to his left leg and relator's request for a writ of mandamus should be denied.
STEPHANIE BISCA BROOKS MAGISTRATE
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