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State ex rel Franks v. Industrial Commission of Ohio6/4/2002
(REGULAR CALENDAR)
DECISION
ON OBJECTIONS TO THE MAGISTRATE'S DECISION IN MANDAMUS
. Relator, Nicholas Franks, has filed an original action in mandamus requesting this court to issue a writ of mandamus to order respondent, Industrial Commission of Ohio, to vacate its order that denied his application for compensation for permanent total disability for the loss of one-half of the great toe under Scheduled Loss Provisions of R.C. 4123.57(B), and to issue an order granting such compensation.
. This court referred the matter to a magistrate, pursuant to Civ.R. 53(C) and Section (M), Loc.R. 12 of the Tenth District Court of Appeals, who rendered a decision including findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate decided the requested writ of mandamus should be denied. Relator has filed objections to the magistrate's decision.
. In his objections, relator argues that the magistrate should have relied on the report of Dr. Logee, and the opinion expressed by Dr. Martin that relator was entitled to compensation for a total loss of use. It is not, however, the magistrate that determines which doctor's report should be relied on, rather, that decision is that of the commission. Further, while Dr. Martin may feel free to express an opinion that relator should be entitled to compensation, his legal opinion is of no import. There was some evidence to support the commission's decision that, although claimant's toe is fused at the interphalangeal joint, there is no evidence that he has sustained a total loss of use of the toe.
. Therefore, upon a review of the magistrate's decision and an independent review of the record, this court adopts the magistrate's decision as its own. Relator's objections to the magistrate's decision are overruled, and the requested writ of mandamus is denied. Objections overruled, writ of mandamus denied.
LAZARUS and BROWN, JJ., concur.
APPENDIX A
IN MANDAMUS
Relator, Nicholas Franks, has filed this original action in mandamus seeking a writ compelling respondent Industrial Commission of Ohio to vacate its order denying compensation for permanent partial disability ("PPD) for the loss of one-half of the great toe under the scheduled-loss provisions of R.C. 4123.57(B), and to issue an order granting that compensation. Findings of Fact:
. In December 1999, Nicholas Franks ("claimant") sustained an industrial injury, and his workers' compensation claim was allowed for a crushing injury and fracture of the left great toe. Surgical repair included fusion at the interphalangeal joint.
2. In April 2000, claimant was examined by Paul Martin, M.D., who found that the interphalangeal joint was fused. The range of motion at the metatarso-phalangeal joint was slightly limited due to discomfort. There was no significant swelling. The nail was discolored and partially avulsed from the base of the nail bed. Dr. Martin expected the condition to improve and opined that claimant had not yet reached maximum medical improvement but would do so within about eight weeks. Dr. Martin imposed work restrictions and concluded that, due to the fusion procedure, claimant would probably be left with some permanent impairment, to be estimated after the condition becomes permanent .
3. In June 2000, claimant's surgeon, Owen Logee, M.D., explained that the fusion of the interphalangeal joint caused loss of that joint's mobility. He found that claimant, five months after injury, had about 50% loss of strength and dorsiflexion and plantar flexion. Claimant walked without difficulty but had not yet been able to run "satis
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