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State ex rel Burbol v. Industrial Commission of Ohio9/1/2005
(REGULAR CALENDAR)
DECISION
IN MANDAMUS
{ } Relator, Dian M. Burbol, has filed an original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio, to grant her statutory permanent total disability compensation pursuant to R.C. 4123.58(C).
{ } This matter was referred to a magistrate of this court 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, recommending that this court deny relator's request for a writ of mandamus. (Attached as Appendix A.) No objections have been filed to that decision.
{ } Finding no error of law or other defect on the face of the magistrate's decision, and based upon an independent review of the record, this court adopts the magistrate's decision as our own, including the findings of fact and conclusions of law. In accordance with the magistrate's decision, relator's requested writ of mandamus is denied.
Writ of mandamus denied.
FRENCH and McGRATH, JJ., concur.
APPENDIX A
MAGISTRATE'S DECISION
Rendered on April 29, 2005
{ } Relator, Dian M. Burbol, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to grant her statutory permanent total disability ("PTD") compensation , pursuant to R.C. 4123.58(C) and Ohio Adm.Code 4121-3-34(E).
Findings of Fact
{ } 1. Relator sustained two work-related injuries and her claims have been allowed for: "contusion right hand; tendonitis right hand and wrist; reflex sympathetic dystrophy right upper extremity" and "joint derangement nec -- hand, left thumb."
{ } 2. On August 22, 2003, relator filed an application for PTD compensation . In support thereof, relator submitted the treatment notes of her treating physician N. Rehmatullah, M.D., from March 5, 2001 through November 24, 2003. In his treatment notes, dated May 1, 2003, Dr. Rehmatullah stated as follows:
* * * I had filled out a paper on 04-10-03 indicating that she had reached MMI. This is based on the fact that she had had extended conservative care, including pain management, and her condition has not changed. I therefore feel that she has reached a treatment plateau, at which no fundamental functional or physical change can be expected, despite continuing medical or rehabilitative intervention. With regards to her work capacity, she is not able to work because of limited use of her right arm and hand.
{ } 3. The commission referred relator to R. Scott Krupkin, M.D., for an independent medical examination. Dr. Krupkin issued a report, dated December 11, 2003, wherein he noted the following on physical examination:
* * * Examination of the right upper extremity shows that the patient holds her arm in a guarded and flexed posture. At this point she demonstrated no active movement in the right upper extremity. Attempts to passively move the limb were virtually impossible due to muscle tightness and/or contractures. She is able to extend and flex her index finger and thumb with a weak pincer grasp. There is hyperesthesia at the dorsum of the first web space. Otherwise, light touch sensation is apparently absent in the rest of the right upper limb per patient report. The right upper extremity is warm, there is no discoloration or trophic skin changes. Capillary refill is normal. Distal pulses are intact. Deep tendon reflexes could not be tested secondary to contractures of the arm. Palpatory examination rev
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