[Cite as State ex rel. Wisner v. Indus. Comm., 2022-Ohio-3441.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Justin M. Wisner, :
Relator, : No. 21AP-494
v. : (REGULAR CALENDAR)
Industrial Commission of Ohio et al., :
Respondents. :
D E C I S I O N
Rendered on September 29, 2022
On brief: Nager, Romaine & Schneiberg Co., LPA, Colter J.
McArdle, and Catherine Lietzke, for relator.
On brief: Dave Yost, Attorney General, and David M.
Canale, for respondent Industrial Commission of Ohio.
IN MANDAMUS
JAMISON, J.
{¶ 1} Relator, Justin M. Wisner, seeks a writ of mandamus from this court ordering
respondent, Industrial Commission of Ohio ("commission"), to vacate a decision by the
commission awarding loss of vision of 60 percent of the left eye, and enter an order granting
loss of vision of 90 percent of the left eye.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C)
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
court deny relator's request for a writ of mandamus. Specifically, the magistrate found that
a medical file review where a physician accepts the findings of the reviewing doctors is
sufficient evidence to support the commission's findings. The magistrate further found that
No. 21AP-494 2
the commission has no duty to explain why one report is considered more persuasive than
another.
{¶ 3} No party has filed objections to the magistrate's decision. The matter is now
before this court for review.
{¶ 4} "If no timely objections are filed, the court may adopt a magistrate's decision
unless it determines that there is an error of law or other defect evident on the face of the
magistrate's decision." Civ.R. 53(D)(4)(c). See, e.g., State ex rel. Armengau v. French, 10th
Dist. No. 16AP-223, 2016-Ohio-5342, ¶ 3 ("Finding no error or other defect on the face of
the magistrate's decision, this court adopts that decision as our own, including the findings
of fact and conclusions of law."). "Whether or not objections are timely filed, a court may
adopt or reject a magistrate's decision in whole or in part, with or without modification. A
court may hear a previously-referred matter, take additional evidence, or return a matter
to a magistrate." Civ.R. 53(D)(4)(b).
{¶ 5} Upon review, we find no error of law or other defect on the face of the
magistrate's decision, and we adopt the magistrate's decision as our own, including the
findings of fact and conclusions of law. In accordance with the magistrate's decision, we
deny relator's requested writ of mandamus.
Writ of mandamus denied.
BEATTY BLUNT and MENTEL, JJ., concur.
_____________
No. 21AP-494 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Justin M. Wisner, :
Relator, :
v. : No. 21AP-494
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on July 20, 2022
Nager, Romaine & Schneiberg Co., LPA, Colter J. McArdle,
and Catherine Lietzke, for relator.
Dave Yost, Attorney General, and David M. Canale, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 6} Relator, Justin M. Wisner ("claimant"), has filed this original action
requesting this court issue a writ of mandamus ordering respondent, Industrial
Commission of Ohio ("commission"), to vacate its order that granted payment of a
scheduled-loss award for 60 percent loss of use of vision in his left eye, pursuant to
R.C. 4123.57(B), and to enter an order granting such compensation for 90 percent loss of
use of vision in his left eye.
Findings of Fact:
{¶ 7} 1. Claimant was injured on March 27, 2018, in the course of and arising from
his employment with respondent, Creative Plastic Concepts ("employer"), when he was
No. 21AP-494 4
hammering a piece of plastic, and part of the plastic detached and struck his left eye. The
claim was allowed for ocular laceration without prolapse/loss of intraocular tissue, left
eye; aphakia, left eye; traumatic cataract, left eye; and loss of vision of 60 percent of left
eye.
{¶ 8} 2. On March 27, 2018, Amy Brokken, PA-C, issued a treatment note, in
which she indicated, in pertinent part, that claimant has no history of wearing glasses or
contacts.
{¶ 9} 3. On November 2, 2018, Chantelle Mundy, D.O., issued an office report, in
which she found, in pertinent part, that claimant had post-injury uncorrected visual
acuity in his left eye of 20/300.
{¶ 10} 4. On November 26, 2018, Hai Shiuh Wang, M.D., issued a report, in which
he found the following: (1) the visual acuity in claimant's left eye is 20/400; (2) with
refraction, the left eye visual acuity is 20/100; (3) claimant's left eye shows a corneal scar;
(4) claimant's left eye has aphakia; (5) claimant has reached maximum medical
improvement with regard to the allowed condition; (6) based on AMA Guides – 4th
Edition with reference to the Industrial Commission Medical Examination Manual, the
percentage of visual system impairment based on uncorrected vision is 20/400;
(7) claimant is not able to use both eyes at the same time because of anisometropia and
contact lens intolerance, so he is not able to use his left eye on a functional basis; (8) the
left eye has a visual impairment of 90 percent; (9) claimant has visual system impairment
of both eyes of 23 percent; (10) claimant's impairment of visual system as it relates to
impairment of the whole body is 22 percent; and (11) due to loss of visual function of the
left eye, claimant is limited from work requiring both eyes or depth perception or
climbing.
{¶ 11} 5. On March 27, 2019, claimant filed a C-86 motion requesting that the
claim be amended to a loss of vision of 90 percent of his left eye.
{¶ 12} 6. On April 2, 2019, James Ravin, M.D., completed a file review and issued
a report, in which Dr. Ravin found the following: (1) he accepts the allowed conditions
and objective findings noted in the medical file; (2) claimant's post-injury uncorrected
visual acuity is 20/300, based upon the November 2, 2018 office note of Dr. Mundy;
(3) based on the AMA Guides to the Evaluation and Permanent Impairment, Fifth
No. 21AP-494 5
Edition, visual acuity of 20/300 is a visual acuity impairment, also known as ability loss,
of 60 percent; and (4) the 60 percent visual acuity impairment is a result of the allowed
conditions.
{¶ 13} 7. On July 2, 2019, a district hearing officer ("DHO") held a hearing on
claimant's motion. In an order mailed July 10, 2019, the DHO found the following, in
pertinent part: (1) claimant's C-86 motion is granted for a loss of vision of 60 percent of
the left eye; (2) the DHO relies upon the March 27, 2018, treatment note of Brokken, and
the April 2, 2019, report of Dr. Ravin; (3) Brokken notes that claimant does not have a
history of wearing glasses or contacts; (4) Dr. Ravin opines that claimant's post-injury
uncorrected visual acuity is 20/300, and the percentage of loss of vision is 60 percent as
a result of the allowed conditions; and (5) all of the evidence was reviewed and considered.
Claimant appealed.
{¶ 14} 8. On August 16, 2019, a staff hearing officer ("SHO") held a hearing on
claimant's appeal, and on August 21, 2019, the SHO issued an order in which the SHO
found the following, in pertinent part: (1) claimant's claim is additionally allowed for 60
percent loss of vision of the left eye; (2) the SHO relies upon the April 2, 2019, report of
Dr. Ravin, in which he found claimant's post-injury uncorrected visual acuity was
20/300, based upon the November 2, 2018 office note of Dr. Mundy; (3) based upon the
AMA Guides to Evaluation of Permanent Impairment, Fifth Edition, Dr. Ravin found
visual acuity of 20/300 is a visual acuity impairment of 60 percent, and the 60 percent
loss of vision was the result of the allowed conditions; (4) the SHO finds Dr. Ravin most
persuasive; and (5) all of the evidence was reviewed and considered.
{¶ 15} 9. Claimant filed an appeal, which was refused by the commission in a
September 6, 2019, order.
{¶ 16} 10. On October 1, 2021, claimant filed a complaint for writ of mandamus
requesting that this court order the commission to grant him a loss of vision award for a
90 percent loss of vision in his left eye.
Conclusions of Law and Discussion:
{¶ 17} The magistrate recommends that this court deny claimant's request for a
writ of mandamus.
No. 21AP-494 6
{¶ 18} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of law.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 19} A clear legal right to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order that is not supported by any
evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On
the other hand, where the record contains some evidence to support the commission's
findings, there has been no abuse of discretion and mandamus is not appropriate. State
ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions
of credibility and the weight to be given evidence are clearly within the discretion of the
commission as fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 20} R.C. 4123.57(B) authorizes scheduled compensation to a claimant for the
total loss of a body part, such as the total loss of an arm, leg, ear, or eye. "Loss" within the
meaning of the statute includes not only amputation, but also the loss of use of the
affected body part. State ex rel. Wyrick v. Indus. Comm., 138 Ohio St.3d 465, 2014-Ohio-
541, ¶ 10, citing State ex rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-
6364, ¶ 13. An injured worker claiming loss of use under R.C. 4123.57(B) bears the burden
of showing that the loss of use is complete and permanent. State ex rel. Carter v. Indus.
Comm., 10th Dist. No. 09AP-30, 2009-Ohio-5547. R.C. 4123.57(B) provides, in pertinent
part:
In cases included in the following schedule the compensation
payable per week to the employee is the statewide average
weekly wage as defined in division (C) of section 4123.62 of
the Revised Code per week and shall be paid in installments
according to the following schedule:
***
For the loss of the sight of an eye, one hundred twenty-five
weeks.
For the permanent partial loss of sight of an eye, the portion
of one hundred twenty-five weeks as the administrator in each
case determines, based upon the percentage of vision actually
lost as a result of the injury or occupational disease, but, in no
No. 21AP-494 7
case shall an award of compensation be made for less than
twenty-five per cent loss of uncorrected vision. “Loss of
uncorrected vision” means the percentage of vision actually
lost as the result of the injury or occupational disease.
{¶ 21} In the present case, claimant argues the commission abused its discretion
when it did not grant his request to have his claim amended to include a loss of vision of
90 percent and did not comply with State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203
(1991), which requires a brief explanation of its reasoning. Claimant asserts the SHO did
not explain the basis for the finding that Dr. Ravin offered the more persuasive opinion.
Claimant questions how a simple file review can be capable of offering a medical opinion
as to actual loss of vision when Dr. Wang, in the November 26, 2018, report, is the only
doctor who actually physically examined claimant for the specific and sole purpose of
assessing his loss of vision as it relates to his request for a scheduled loss. Claimant points
out that Dr. Ravin failed to acknowledge or even mention Dr. Wang's opinion that
claimant suffered a 90 percent loss of vision, which severely undermines the
persuasiveness of Dr. Ravin's report.
{¶ 22} However, the standard by which the magistrate must review the
commission's order is the "some evidence" standard. Clearly, Dr. Ravin's report
constitutes some evidence to support the commission's decision that claimant suffered a
60 percent loss of vision. Claimant asks that this court reweigh the evidence and rely upon
the evidence that he believes is more persuasive. As explained above, questions of
credibility and the weight to be given evidence are within the discretion of the
commission. See Teece, supra. The SHO indicated that he had performed a file review as
requested, reviewed and considered all the evidence in the record, and found Dr. Ravin's
April 2, 2019, report more persuasive than the other evidence. Dr. Ravin specifically notes
in his report that he reviewed Dr. Wang's November 26, 2018, report, which claimant
believes to be more persuasive. Dr. Ravin also specifically indicated that he had accepted
the objective findings in the file. "It is undisputed that a physician conducting a file review
must accept all the allowed conditions as well as the objective findings of the examining
physician." State ex rel. Caldwell v. New Boston Coke Corp., 10th Dist. No. 10AP-1068,
2011-Ohio-6053, ¶ 4, citing State ex rel. Lampkins v. Dayton Malleable, Inc., 45 Ohio
St.3d 14 (1989). If a doctor who conducts a file review accepts the findings of the reviewing
No. 21AP-494 8
physicians, the reviewing doctor's report can constitute "some evidence." State ex rel.
Boyer v. Indus. Comm., 10th Dist. No. 05AP-107, 2005-Ohio-6100, ¶ 21, citing State ex
rel. Wallace v. Indus. Comm., 57 Ohio St.2d 55 (1979). See also Lampkins at ¶ 16 (relaxing
the express acceptance requirement in Wallace and permitting reliance on a non-
examining physician's report where the report impliedly accepted the findings of the
examining physicians). In this case, Dr. Ravin's file review expressly indicated that he had
reviewed the medical file and accepted all the objective findings of the examining
physicians in the file; thus, it constituted some evidence on which the SHO could rely,
despite the fact that the review did not specifically mention every detail in Dr. Wang's
report, specifically, Dr. Wang's opinion that claimant had suffered a 90 percent loss of
vision.
{¶ 23} Furthermore, it is well established that the commission is not required to
explain "why one piece of evidence was considered more persuasive than another." State
ex rel. Packaging Corp. of Am. v. Indus. Comm., 139 Ohio St.3d 591, 2014-Ohio-2871,
¶ 26, citing State ex rel. Bell v. Indus. Comm., 72 Ohio St.3d 575, 577 (1995). The
commission's order here complied with Noll, as the commission identified the medical
reports it relied on to find claimant suffered a 60 percent loss of vision, and it gave a brief
explanation of its reasoning. The commission was under no obligation to discuss Dr.
Wang's report in any further detail or explain why it found Dr. Ravin's report more
persuasive.
{¶ 24} In addition, this court has "repeatedly held that it is within the commission's
discretion to fashion a [permanent partial disability] award by choosing a percentage of
impairment within the range of percentages contained in the medical reports upon which
it has relied." State ex rel. Chrysler LLC v. Indus. Comm., 10th Dist. No. 08AP-1005,
2010-Ohio-85, ¶ 54, citing State ex rel. Core Molding Technologies v. Indus. Comm., 10th
Dist. No. 03AP-443, 2004-Ohio-2639; State ex rel. Wrenn v. [The] Kroger Co., 10th Dist.
No. 03AP-14, 2003-Ohio-6470. " 'In that situation, there is no requirement that the
commission explain why it selected the percentage chosen.' " State ex rel. Bowman v.
Indus. Comm., 10th Dist. No. 19AP-109, 2020-Ohio-5343, ¶ 40, quoting Chrysler at 54.
Here, even claimant admits in his brief that the medical evidence indicated that he
suffered a loss of vision between 60 percent and 90 percent. Therefore, the commission
No. 21AP-494 9
could choose the 60 percent opinion contained within Dr. Ravin's report, and it was not
required to explain why it selected this percentage that was within the ranges offered by
the medical evidence.
{¶ 25} Accordingly, it is the magistrate's decision that this court should deny
claimant's petition for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
{¶ 1} NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).