*1 that it does to unwind this case so unjustifiably practical way it has collected. unjustifiable off the collections not shock the and its investors is to set utility that a suggested has against charges. future The Ohio Consumers’ Counsel for way rider is an against direct setoff the deferred fuel-cost restitution. provide Columbus Southern AEP to million that it collected based Allowing retain $368 a 50- Doing so because of
charges justified that were not is unconscionable. statute on which it is based is year-old supported by case that is not I dissent. ratepayers ridiculous. The of Ohio deserve better.
O’Neill, J., foregoing opinion. concurs in the Counsel, Weston, Terry R. L. Grady Bruce J. Consumers’ and Maureen Counsel, Etter, appellant Assistant Consumers’ for Ohio Consumers’ Counsel. McNees, Nuriek, L.L.C., Randazzo, Darr, Frank P. Wallace & Samuel C. E/Oliker, for Industrial Joseph appellant Energy Users-Ohio. DeWine, General, L. L. Mar- Attorney Wright,
Michael and William Werner III, Jones, General, gard Attorneys appellee and John H. Assistant for Public Utilities Commission of Ohio. Satterwhite; Porter, T. Wright,
Steven Nourse and Matthew J. Morris & Arthur, Trafford, R. Conway, intervening appellee, Kathleen M. and Daniel Company. Ohio Power Wyrick, Appellant, ex rel. State Appellees. al., et
Commission of Ohio
[Cite as
465,
(No. February 2013 Decided 2012-1670 Submitted October *2 Per Curiam. Wyrick appeals judgment appeals denying the of the court of Charles G.
{¶ 1} require appellee for a writ of mandamus that would request his his left arm. scheduled loss benefits for the loss of use of Commission it relied on the that the commission abused its discretion when Wyrick argues Wyrick Dr. D. Ann as that had retained some use of Middaugh of report 4123.57(B). deny his left arm to his for benefits under R.C. its when it relied on the agree We that the commission abused discretion
2}{¶ we reverse the of the court of report Middaugh. Consequently, appeals. 8, 2006, Wyrick injured scaffolding On March was when he fell off while
{¶ 3} Drywall Systems, a for Inc. His working carpenter appellee as Commercial shoulder, compensation superfi- workers’ claim was allowed for a dislocated left a hand, cial in his fourth a torn injury finger, to his left cellulitis left left rotator cuff, and a herniated disc at C5-6. February Wyrick requesting compensation On filed a motion for
4}{¶ upper extremity, supported by January the scheduled loss of use of his left Wyrick of Dr. D.J. Griffin III. Dr. Griffin George reported had no rotator cuff and had lost the functional use of his left present extremity. The commission of Dr. D. Ann who Middaugh, submitted
{¶ 5} ac- performed independent Wyrick. Middaugh medical examination of cuff, his knowledged opined has lost the use of left rotator but she significant remaining upper extremity including he “has function of his left forearm, in long no limitation wrist and hand so as the elbow is objective maintained the waist level.” She stated “the documentation and physical examination does not total loss of use of left [sic] upper extremity degree body part to the that the involved is useless for all hearing Wyrick’s request compensation. staff officer denied
{¶ 6}
officer
of Dr.
hearing
Middaugh
relied
as some evidence
entirely
had not
lost the use of his left arm.
Wyrick filed a
for a writ of mandamus
complaint
alleging
7} commission’s
was a
abuse of discretion.
his brief in
he
finding
gross
support,
evidence because
Middaugh’s report
could not constitute some
alleged
the loss of use of
proper legal
evaluating
she had failed to use the
standard when
require
his arm.
asked the court
to issue a writ
that would
upper extremity.
commission to
his
for the loss of use of the left
grant
application
The court of
concluded that Dr.
had relied on the
appeals
appropriate legal
standard when she evaluated the function
left
the court concluded that Dr.
was some evidence
rely
which the commission could
scheduled loss
and denied
compensation
writ.
Wyrick’s appeal
right.
This cause is now before the court on
as of
4123.57(B)
R.C.
to an
provides
compensation payable
schedule
injured
body
worker for the loss of a
enumerated in the statute. There is no
part
thus,
provision
“upper extremity”;
the statute for the loss of an
we consider
Wyrick’s request
meaning
to be for the loss of his left arm. “Loss” within the
*3
4123.57(B)
only
R.C.
includes not
but also the loss of
of the
amputation,
use
Comm.,
body
27;
affected
ex rel.
v.
112
part. State
Moorehead
Ohio St.3d
1203,
857 N.E.2d
at 13. The loss of use need not be
if
absolute
the claimant has “suffered the
of
injured bodily
loss
member for all
intents
practical
and
State ex rel. Alcoa
Prods.
Bldg.
¶ 12.
Comm.,
341,
{¶ 12} Nevertheless, improper legal standard. we agree cannot consti- tute some evidence to support the commission’s decision because her conclusion Wyrick’s arm “significant retains function” remaining is inconsistent with the physical examination and her observations. In her Dr. acknowledged Wyrick was able to use
{¶ 13} his left forearm and if only hand he holds his arm next to body his with the elbow at waist level and that he was unable to lift his arm without assistance. Her examination revealed that he holds his left arm with the elbow flexed and hand at his waist level. Dr. Middaugh observed that of motion range ability and to function severely were limited due to the loss of cuff. his entire rotator We find that Dr. Middaugh’s findings are not consistent with her
{¶ 14} ultimate conclusion. remaining She concluded that had “significant function of his left upper extremity,” finding while at the same time that he was 468 level. hand, wrist, only if the elbow remains waist to use his and forearm
able supporting the that is inconsistent cannot be some evidence internally Comm., 445, 69 Ohio St.3d Lopez commission’s decision. State ex rel. 449, cannot be Consequently, 633 N.E.2d decision to an award for loss of supporting some evidence the commission’s use and must be removed from consideration. hand, January report Wyrick’s treating On the other
{¶ 15}
Griffin,
that,
lost the
practical purposes, Wyrick
stated
for all
had
physician,
submitted for
only
function of his left arm. Because this is the
other
award,
no
with his motion for a loss-of-use
there is
reason
return
consideration
pursuant
this matter to the commission for further consideration.
State
Mihm,
(1994),
O’Donnell, Kennedy, French, J., dissenting. O’Donnell, I dissent. Respectfully, The issue this case is whether the Industrial Commission abused its
discretion in a determining Charles is not entitled to loss of use upper extremity his left and whether there is some evidence in the record to support commission’s decision. Because the commission did not record, abuse its discretion and supported by its decision is judgment of the court of appeals denying relief should be affirmed. Mandamus will not to control lie the discretion vested the commission * * * long
“as
as its discretion is exercised
within
soundly
legal
bounds.
Further, mandamus will not lie unless there has
of discre-
gross
been
abuse
Comm.,
Goodyear
tion.” State ex rel.
Tire & Rubber
v. Indus.
Co.
38 Ohio St.2d
57, 62, 310
Casting
N.E.2d
State ex rel. Avalon Precision
Co. v.
Comm.,
237,
and set forth reasons in its order that adequately explained its determination that all practical “for purposes, [Wyrick] has not lost the use of his left upper extremity to the same effect and extent ifas it had been amputated or otherwise physically removed.” In Dr. Middaugh Wyrick’s documented medical history and set forth her review of his medical records and upon physical examination. Dr. Middaugh acknowledged Wyrick’s treating physi- cian —Dr. George reported essentially “had lost the func- Griffin — tional use of his left extremity.” concluded, however, She based all her, the information available to significant “has remaining function of his left upper extremity” and that the objective evidence did not support the conclusion that his arm “is useless for all Wyrick urges that Dr. Middaugh based her opinion on an legal incorrect standard when she failed to use the word “practical” to modify the word “purposes” when stating upper left extremity was “not useless for all purposes.” He asserts this is not the standard we established in State ex Bldg. Alcoa Prods. v. Indus. 102 Ohio St.3d (loss N.E.2d 12-13 of use need not be absolute if the claimant has “suffered loss of use of injured bodily member for all practical intents and purposes”). Wyrick urges that if Dr. Middaugh had used the legal correct standard, might she have reached a different conclusion. The court of appeals agreed with its magistrate’s
{¶ conclusion that “when
whole,
read as a
Dr. Middaugh’s failure to use the word ‘practical’ does not
‘
constitute use of an incorrect legal standard or misapplication of Alcoa.
“Noth-
*5
in
ing
suggests
Alcoa
that
the talismanic all
phrase
practical
‘for
’ ”
purposes’
required
is
in determining a loss of
use claim.”
2012
¶
3962375, 7,
WL
quoting
Co.,
State ex rel. Kish v.
10th
Kroger
Dist. Franklin No.
¶ 13,
State ex Wheel-
quoting
{¶ flawed. opinion her did not render “practical” the word failure to use daugh’s interpret and Nevertheless, it to reexamine proceeds 12. at Majority opinion that concluding opinion, with her ultimate as inconsistent Middaugh’s findings Dr. the commission’s decision support constitute some evidence her “cannot function’ ‘significant remaining that arm retains her conclusion because and her observa- examination findings physical the of her inconsistent with is majority the here is that problem at 12. The Majority opinion tions.” its improperly and substituted the evidence essentially reweighed has is Dr. concluding in that Commission that of the Industrial inconsistent. view, are not Middaugh’s findings Dr. majority’s Notwithstanding 24}
{¶ Middaugh In acknowl- conclusion. her with her ultimate inconsistent shoulder,” but cuff relative to the left use of the entire rotator “clear loss of edges signifi- “has information available concludes on all the based objective extremity” and function of his left remaining cant arm is “useless for all the conclusion that his support evidence did not case, credibility of the evaluating weight after this persuasive to be it, Middaugh’s opinion the commission determined before the commission’s it, supports is some evidence relied on and her does not constitute a determination deny compensation. decision to Such abuse of discretion. weight to assess the of the commission responsibility It is the exclusive evidence, reviewing the commission’s and our limited role credibility of the record to is some evidence is to determine whether there
order Burley, for its decision. State commission’s stated basis evidence, to the we must defer 20-21, 936. If there is some 508 N.E.2d supports if is other evidence determination even there commission’s ex rel. Pass v. C.S.T. that of the commission. State contrary to decision Co., Extraction Ohio St.3d legal standard relied on the I believe Furthermore, I in this matter. believe opinion her medical rendering
when commission’s decision to supported constituted evidence it denied not abuse its discretion when the commission did compensation. I the loss of use of his left Wyrick for benefits for of Charles G. court of appeals. affirm the of the would JJ., foregoing opinion. concur in the and French, Kennedy *6 Co., L.P.A., Butkovich, Butkovich & Crosthwaite A. Joseph and Dana R. Lambert, for appellant. DeWine, General, Attorney Thomas,
Michael Patsy A. Attorney Assistant General, for appellee Industrial Commission. Robinson, Appellant, v. Appellees. al.,
Commission of Ohio et
[Cite as State ex rel. Robinson v.
(No. 2012-1827 Submitted September 2014.) 2013 Decided February
Per Curiam. Appellant, Shelby Robinson, K. appeals from judgment court appeals denying for a writ of mandamus. The court of appeals held that the Industrial Commission did not abuse its by discretion denying Robinson temporary-total-disability compensation on the basis that discharge Robinson’s from employment for violating written workplace rules had voluntary been a abandonment. follow, For the reasons that we affirm. (“LPN”) Robinson had been employed as a licensed practical nurse
Progressive Center, Parma Care Care Nursing and Rehabilitation L.L.C./Parma (“Parma Care”) hired, since 1995. When given job she was a written description that set job forth her duties responsibilities. She also received a copy employee handbook.