[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. :

M A G I S T R A T E ' S D E C I S I O N

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-Ohio541, ¶ 10, citing State ex rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio6364, ¶ 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 nonexamining 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).