State ex rel. Varney v. Indus. Comm. (Slip Opinion)

2014 Ohio 5510, 36 N.E.3d 109, 143 Ohio St. 3d 181
CourtOhio Supreme Court
DecidedDecember 18, 2014
Docket2012-2040
StatusPublished
Cited by13 cases

This text of 2014 Ohio 5510 (State ex rel. Varney v. Indus. Comm. (Slip Opinion)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Varney v. Indus. Comm. (Slip Opinion), 2014 Ohio 5510, 36 N.E.3d 109, 143 Ohio St. 3d 181 (Ohio 2014).

Opinions

Per Curiam.

{¶ 1} Appellee, Dennis Varney, had four fingers on his left hand amputated in a work-related accident in 1983. Three fingers were completely reattached, and the fourth, his index finger, was partially reattached. The fingers did not regain their full function, however. The Bureau of Workers’ Compensation awarded Varney compensation for the amputation of his fingers. A further claim for one-third loss of use of his index finger was allowed in 1985 and another in 1990 for two-thirds loss of use of his left middle, ring, and little fingers.

{¶ 2} Almost 20 years later, Varney applied for an award for the total loss of use of his left index, ring, and little fingers. The Industrial Commission, appellant, denied the claim, concluding that there was no legally valid medical report in the record supporting the loss of the functional use of these fingers. In addition, the issue of how much use was lost had been decided more than 20 years ago.

{¶ 3} The Tenth District Court of Appeals determined that the commission had applied the wrong legal standard for determining the loss of use of a finger. The court granted Varney’s request for a writ of mandamus, remanding the matter to the commission to reconsider the issue under the correct standard.

{¶ 4} For the reasons that follow, we conclude that the commission properly examined the medical evidence as it related to the amount of function remaining in the fingers and properly denied Varney’s request for compensation for the total loss of use of three fingers. Therefore, we reverse the judgment of the court of appeals and deny the writ.

[182]*182{¶ 5} In November 1983, the four fingers of Dennis Varney’s left hand were amputated in a work-related accident. A hand surgeon successfully reattached the middle, ring, and little fingers, and performed a revision amputation at the distal interphalangeal level of his index finger. His claim was initially allowed for “amputation fingers, left second finger, third finger, fourth finger, fifth finger,” and the bureau paid Varney temporary-total-disability compensation for a period of time following the accident. After three months, he returned to work.

{¶ 6} In 1985 and 1990, Varney applied for and was awarded compensation for the partial loss of use of his four fingers. In 1998, he was awarded compensation for one-half loss of use of his hand. In 2010, Varney filed a motion for the total loss of use of his left hand, based on two medical reports of Dr. Nancy Renneker. On January 27, 2011, a staff hearing officer denied the motion, rejecting Dr. Renneker’s reports and relying instead on an October 28, 2010 report from Dr. Jeremy J. Burdge, in which Dr. Burdge concluded that Varney did not have a complete loss of use of his hand. The hearing officer also stated that, in the alternative, Varney’s request was denied because he did not provide any new evidence showing a basis for an increase above the prior award in 1998 for the loss of use of one-half of his hand. Dr. Renneker’s reports were rejected as failing to show any decline in function. Varney’s appeal to the commission was refused.

{¶ 7} In December 2010 (while his motion for the total loss of use of his hand remained pending), Varney filed a motion for a total loss of use of his index, ring, and little fingers. This motion led to the order that is the basis for Varney’s mandamus action. Varney’s motion was based on the statement in Dr. Burdge’s report that Varney has a 69 percent impairment of his left index finger and on the report of Dr. Renneker, who stated that Varney has the equivalent of a total loss of use of three fingers.

{¶ 8} A district hearing officer denied the motion for three reasons. First, there was no valid medical report in the record supporting the loss of the functional use of these fingers. The commission’s January 27, 2011 order on total loss of use of the hand rejected Dr. Renneker’s report as not showing further loss of function, and thus that report could not be a basis for the new claim. In support, the hearing officer cited State ex rel. Zamora v. Indus. Comm., 45 Ohio St.3d 17, 543 N.E.2d 87 (1989). Second, “[t]he issue of how much use was lost in these fingers was decided more than twenty years ago. No new surgeries, treatments, or other changes in circumstances have been alleged. Therefore, this issue is already decided.” Third, even if the motion were to be decided on the merits, it would fail, as Dr. Burdge’s February 11, 2011 report was evidence that Varney did not have a total functional loss of use in these three fingers.

[183]*183{¶ 9} A staff hearing officer affirmed the decision. The commission refused further appeal.

{¶ 10} Varney filed a complaint for a writ of mandamus in the Tenth District Court of Appeals. A magistrate recommended that the court deny the writ because Varney had not demonstrated that for all intents and purposes, he had a total loss of use of these fingers. The magistrate agreed that the commission could not rely on Dr. Renneker’s report as evidence because the commission had already rejected her opinion. The magistrate rejected Varney’s argument that when analyzing the loss of use of his fingers, the commission should have applied the standard for the loss of use of a thumb articulated in State ex rel. Rodriguez v. Indus. Comm., 10th Dist. Franklin No. 08AP-910, 2009-Ohio-4834, 2009 WL 2941957. The magistrate noted that a thumb is viewed differently than a finger and is evaluated under different standards, citing State ex rel. Riter v. Indus. Comm., 91 Ohio St.3d 89, 92, 742 N.E.2d 615 (2001) (the thumb is “truly unique” and “evaluating it under standards directed at the fingers just doesn’t work”).

{¶ 11} In conclusion, the magistrate stated:

The commission had already awarded relator a 50 percent loss of use of his hand and, as the commission indicated, relator did not present evidence demonstrating [that] his loss of use of these specific fingers had increased since the commission’s last order. * * * The evidence does not demonstrate that relator has for all intents and purposes sustained a total loss of use of his index, ring or little fingers and the commission did not abuse its discretion.

State ex rel. Varney v. Indus. Comm., 10th Dist. Franklin No. 11AP-585, 2012-Ohio-4904, 2012 WL 5248437, ¶ 61.

{¶ 12} But, in a split decision, the court of appeals concluded that the reasoning in Rodriguez regarding the loss of use of a thumb did apply to the loss of use of a finger; thus, “R.C. 4123.57(B) requires the commission to determine whether more than two-thirds of a finger is useless and not merely whether the finger is totally useless.” Id. at ¶ 4. The appellate court determined that the commission had used the wrong standard when analyzing Dr. Burdge’s report. The court granted Varney’s request for a writ of mandamus and remanded the case to the commission to redetermine his eligibility for the loss of use of his fingers.

{¶ 13} The matter is before the court on the commission’s appeal as of right.

{¶ 14} We must determine whether the court of appeals abused its discretion when it applied the standard articulated in Rodriguez for the loss of use of a [184]

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Bluebook (online)
2014 Ohio 5510, 36 N.E.3d 109, 143 Ohio St. 3d 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-varney-v-indus-comm-slip-opinion-ohio-2014.