MEMORANDUM DECISIONIn this original action, relator, Virgil L. Bailey, Jr., requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying relator's application for an award for the loss of the third or distalphalange of his right index finger pursuant to R.C.4123.57(B), and to issue an order finding that he is entitled to said award.

This court referred the case to a magistrate, pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth Appellate District. The magistrate has rendered a decision, including findings of fact and conclusions of law and has concluded that the court should deny the issuance of a writ of mandamus. There have been no objections filed to the decision and recommendation of the magistrate.

In essence, the magistrate has concluded that relator has failed to show the commission abused its discretion in denying the award sought by relator. The magistrate relied principally on the case of State ex rel. Kabealo v. Indus. Comm. (Mar. 8, 1990), Franklin App. No. 88AP-33, unreported (1990 Opinions 811) and concluded the commission properly decided that amputation of the two-thirds of the distalphalange was not an amputation near the joint to support an award pursuant to R.C. 4123.57(B).

Upon examination of the magistrate's decision and an independent review of the file, this court adopts the decision and recommendation of the magistrate as its own including the findings of fact and conclusions of law contained therein.

In accordance with the recommendation contained in the magistrate's decision, the requested writ of mandamus is denied.

Writ of mandamus denied.

BOWMAN and KENNEDY, JJ., concur.