[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Heilman v. Indus. Comm., Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 

    THE STATE EX REL . HEILMAN, APPELLEE AND CROSS -APPELLANT, v.
     INDUSTRIAL COMMISSION OF OHIO APPELLANT AND CROSS-APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State ex rel. Heilman v. Indus. Comm., Slip Opinion No.
                                     

.]
Mandamus—Workers’ compensation—Commission abused its discretion by
        denying claimant’s request for scheduled-loss benefits based solely on
        nonexamining physician’s report that did not accept the objective factual
        findings of all examining physicians in compliance with Wallace v. Indus.
        Comm.—Commission may use noncomplying reports as guidance in
        reviewing remaining medical evidence—Court of appeals’ judgment
        granting limited writ ordering commission to vacate its order denying
        claimant’s loss-of-use compensation and to issue a new order granting or
        denying the request affirmed.
    (No. 2023-1258—Submitted July 9, 2024—Decided November 26, 2024.)
      APPEAL from the Court of Appeals for Franklin County, No. 21AP-353,
                                SUPREME COURT OF OHIO




                                     

.
                                  __________________
        The per curiam opinion below was joined by FISCHER, DONNELLY,
STEWART, and BRUNNER, JJ. KENNEDY, C.J., dissented, with an opinion joined by
DEWINE and DETERS, JJ.


        Per Curiam.
        {¶ 1} Appellant and cross-appellee, Industrial Commission of Ohio, denied
scheduled-loss compensation under R.C. 4123.57(B) to appellee and cross-
appellant, Patricia A. Heilman (“Heilman”), the surviving spouse of Arthur J.
Heilman (“the decedent”), who died as the result of an industrial accident. The
Tenth District Court of Appeals granted Heilman a limited writ of mandamus
ordering the commission to vacate its order denying scheduled-loss compensation
and to determine whether Heilman has established the decedent’s loss of use of
certain body parts and bodily functions under R.C. 4123.57(B) and grant or deny
compensation accordingly. Both the commission and Heilman have appealed. We
affirm the court of appeals’ judgment granting a limited writ of mandamus.
                                   I. BACKGROUND
             A. Heilman’s Request for “Loss-of-Use” Compensation
        {¶ 2} The decedent was working as a machinist for H. Hansen Industries
(“the employer”)1 on April 4, 2019, when a piece of machinery exploded. He was
struck in the head by a metal beam, thrown backwards, and was immediately
unresponsive. He arrived at the emergency department bleeding from the nose and
mouth with injuries to his head and face. The decedent received emergency care,
including a craniotomy, but never regained consciousness. He died two days later.



1. The employer is owned and operated by Riverside Maine Industries, Inc., which was a named as
a respondent in the mandamus action but has not appeared before this court in this case.




                                              2
                                     January Term, 2024




        {¶ 3} The Bureau of Workers’ Compensation allowed Heilman’s
application for death benefits. In addition to her application for death benefits,
Heilman requested scheduled-loss compensation under R.C. 4123.57(B), claiming
that before his death, the decedent had suffered the loss of use of both of his arms
and both of his legs, the loss of sight in both eyes, and the permanent and total loss
of hearing in both ears.
        {¶ 4} R.C. 4123.57(B) authorizes the payment of scheduled compensation
to a claimant for the loss of enumerated body parts and bodily functions, such as
the loss of an arm or a leg, the “permanent and total loss of hearing,” or the “loss
of the sight of an eye.” For purposes of R.C. 4123.57(B), the “loss” of a body part
includes amputation or severance as well as a “loss of use” that is both permanent
and total, to the same effect and extent as if the body part had been physically
removed. State ex rel. Walker v. Indus. Comm., 

(1979).2 A claimant3 may demonstrate with medical evidence that a total loss of
use of the body part at issue has occurred “‘for all practical purposes.’ ” State ex
rel. Alcoa Bldg. Products v. Indus. Comm., 

, ¶ 10, quoting State ex
rel. Gassmann v. Indus. Comm., 

 (1975).
        {¶ 5} Multiple CT scans of the decedent’s body revealed “[n]umerous
fractures of the facial bone and skull involving” the left and right orbits, “extensive
orbital wall fractures extending to optic canal areas and also fractures of the
posterior orbits,” an “[a]cute anterior T4 superior endplate fracture [i.e., a fracture
of the fourth thoracic vertebra] with no significant height loss,” and a “[f]ocal


2. The statute at issue in Walker, former R.C. 4123.57(C), 137 Ohio Laws, Part II, 3934, 3948-
3950, was subsequently renumbered R.C. 4123.57(B), Am.Sub.S.B. No. 307, 141 Ohio Laws, Part
I, 718, 769-777.

3. Under R.C. 4123.60, a surviving spouse may apply for an award of compensation to which the
decedent would have been lawfully entitled to receive at the time of death. The parties have not
contested Heilman’s ability as a surviving spouse to seek an award under R.C. 4123.57(B) for a loss
not caused by severance. Compare State ex rel. Waste Mgt. of Ohio, Inc. v. Indus. Comm., 2022-
Ohio-4581, ¶ 30, fn. 3.




                                                3
                             SUPREME COURT OF OHIO




paraspinal hematoma adjacent to the T4 fracture.” However, hospital records
indicate that the decedent’s postinjury condition precluded any assessment of his
vision and visual field. His hospital records make no mention of an auditory
assessment or any indication that the decedent sustained injuries to his ears, arms,
or legs. The county coroner, Diane Scala-Barnett, M.D., performed a postmortem
examination of the decedent’s body, completed the autopsy report, and concluded
that the cause of death was “craniocerebral injuries.”
                     B. Nonexamining Physicians’ Opinions
       {¶ 6} The record includes medical opinions from three nonexamining
physicians.     The commission often relies on opinions from nonexamining
physicians who perform a medical-file review as an aid in determining the extent
of an injured worker’s disability. See State ex rel. Wallace v. Indus. Comm., 

 (1979). “[T]he non-examining physician is required to
expressly accept all the findings of the examining physicians, but not the opinion
drawn therefrom.” 

; see also State ex rel. Lampkins v. Dayton Malleable,
Inc., 

 (1989) (recognizing that the “expressly accept”
requirement in Wallace has been relaxed to include “implicit” acceptance).
                             1. Dr. Borrillo’s Opinion
       {¶ 7} Heilman submitted the medical opinion of Donato Borrillo, M.D.,
J.D., M.S., who is an attorney and is board-certified in preventive medicine. Dr.
Borrillo reviewed the decedent’s medical file and accepted “the following findings
and reports of examining physicians . . . [i]n accordance with standards for file
review.”      He opined that even if the decedent “had survived the increased
intracranial pressure from his head injury, and stabilization of his T4 fracture, to a
reasonable degree of medical certainty he would have a permanent and total loss of
use of the four extremities.” Dr. Borrillo further opined that the decedent “suffered
a permanent loss of vision, as his bilateral orbits (and internal structures) were
shattered. The optic nerve and structures related to the visual apparatus were no



                                          4
                                January Term, 2024




doubt permanently injured.”       Dr. Borrillo offered no opinion regarding the
decedent’s loss of hearing.
                              2. Dr. Mareska’s Opinion
       {¶ 8} The bureau obtained an independent medical opinion from
neurologist John C. Mareska, M.D. Dr. Mareska reviewed Dr. Borrillo’s opinion,
the autopsy and coroner’s reports, and other medical evidence in the file. He stated
that he accepted “the allowed condition in this claim, as well as the findings of the
examining physician(s).” Dr. Mareska opined that there was insufficient evidence
to support loss of vision or loss of hearing. He further opined that there was no loss
of use of the decedent’s arms and legs caused by an injury of the arms and legs
themselves or by an injury of the spinal cord, and that there was “insufficient
evidence to support the condition of loss of use of both arms and both legs as a
result of loss of brain function secondary to the injury in question.” Dr. Mareska
based this latter opinion on “the absence of valid and reliable clinical evaluations
(because examinations were done with sedatives and narcotics being used), of arm
and leg motor movements not seen, plus the repeated presence of observed and
documented spontaneous movements.”
       {¶ 9} Dr. Mareska additionally stated that the “reported autopsy findings of
the cerebral hemispheres seem incongruent” and that the “findings of the left
hemisphere . . . in [his] opinion, are not congruent nor consistent with each other.”
After reciting certain autopsy findings, Dr. Mareska concluded that he “could not
rely on the described autopsy findings as being accurate or reliable.” Later in the
proceedings, the commission obtained an addendum report from Dr. Mareska,
which is discussed below.
                              3. Dr. McGriff’s Opinion
       {¶ 10} The employer obtained an independent medical opinion from Patrick
Kelley McGriff, D.O., a family physician. Dr. McGriff stated that he reviewed
Heilman’s motion, Dr. Borrillo’s and Dr. Mareska’s reports, a “case summary of




                                          5
                             SUPREME COURT OF OHIO




death,” and the autopsy report. Dr. McGriff “disagree[d] with Dr. Mareska’s
conclusion in that the autopsy demonstrated evidence of injury specifically to the
right and left frontal bones and orbital/occipital structures.” He further opined that
“at no time, irrespective of patient’s sedation level, do records indicate that the
patient purposely responded to any auditory commands.” Finally, Dr. McGriff
stated that he concurred with Dr. Borrillo’s opinions and, for that reason, opined
that “the claim should be additionally allowed [for] loss of use bilateral arms and
bilateral legs, bilateral loss of vision, and bilateral loss of hearing.” (Dr. Borrillo
had not offered an opinion on loss of hearing, however.) Dr. McGriff concluded,
“The above analysis is based upon history provided by the other examiners,
findings on the examination and the information contained in the medical records I
have reviewed. It is assumed that the material provided is correct.”
                         C. Administrative Proceedings
               1. Hearing Officers Deny Loss-of-Use Compensation
       {¶ 11} After a hearing, a district hearing officer (“DHO”) for the
commission denied Heilman’s request for loss-of-use compensation based on his
finding that Dr. Mareska’s opinion was “most persuasive.” Heilman appealed.
After a hearing on the appeal, a staff hearing officer (“SHO”) for the commission
vacated the DHO’s order but again denied Heilman’s request for loss-of-use
compensation.     The SHO determined that none of the three nonexamining
physicians’ reports are evidence on which the commission could rely.
       {¶ 12} Specifically, the SHO found that Dr. Mareska’s and Dr. McGriff’s
opinions did not comply with this court’s holding in Wallace, 

.
The SHO determined that although Dr. Mareska had stated that he accepted the
findings of the examining physicians, he had also stated that the autopsy findings
were “not congruent nor consistent with each other” and that he “could not rely on
the described [cerebral hemisphere] autopsy findings as being accurate or reliable.”




                                          6
                                January Term, 2024




And although Dr. McGriff specified that he had reviewed the autopsy report, the
SHO found that he did not expressly accept the autopsy findings.
       {¶ 13} Finally, the SHO found that Dr. Borrillo’s report was “defective and
unreliable” because he had based his opinion on findings not supported by the
medical record. In particular, the SHO took issue with Dr. Borrillo’s opinion that
the decedent suffered a permanent spinal injury and that his bilateral orbits and
internal structures were “shattered,” because the autopsy report and the CT scan
documented that the decedent’s spinal cord and bilateral orbits were intact. The
SHO further found that Dr. Borrillo provided no opinion on whether the decedent
sustained a loss of bilateral hearing and that there was insufficient medical evidence
of a hearing test or of any external injury to the decedent’s ears.
       {¶ 14} The SHO detailed the examining physicians’ notes from the
emergency department as well as the autopsy findings in Dr. Scala-Barnett’s report,
none of whom were asked to provide an opinion on whether the decedent had
suffered any of the alleged losses of use. Ultimately, the SHO found that the weight
of the evidence did not support Heilman’s request for loss-of-use compensation.
       {¶ 15} Heilman appealed the SHO’s order, which the commission refused.
She then moved for reconsideration of the SHO’s order.
                        2. Dr. Mareska’s Addendum Report
       {¶ 16} Before ruling on Heilman’s motion for reconsideration, the
commission requested an addendum report from Dr. Mareska, in which he was
asked to explain why he believes the autopsy findings are incongruent, inaccurate,
or unreliable.
       {¶ 17} Dr. Mareska provided a detailed response, comparing the autopsy
report to the CT scan reports and other clinical findings. For instance, he reported
that the CT scan of the decedent’s brain showed no evidence of hydrocephalus or
cortical thinning, yet the autopsy report shows a “large, quite enlarged” left
ventricle, which Dr. Mareska describes as an “unexplained and unusual




                                          7
                             SUPREME COURT OF OHIO




discrepancy.” Additionally, Dr. Mareska reported that the CT scan reports show
an extensive subdural hematoma over the left cerebral hemisphere that is not
reflected in the autopsy report, whereas the autopsy report shows a longitudinal
laceration on the left hemisphere that is not supported by the CT scan reports or
clinical correlations. In his opinion, “the autopsy report has several instances of
either not being consistent within itself, and not being consistent with expected
findings because of the clinical course.”
       {¶ 18} Dr. Mareska further opined that he did not agree with Dr. Borrillo’s
and Dr. McGriff’s conclusions that the decedent sustained the alleged losses of use.
He did not find the term “shattered,” as used by Dr. Borrillo, used by any of the
medical examiners in the medical file, and he opined that the evidence is
insufficient to support the position that “shattering” of the bilateral orbital bones
themselves would have caused permanent vision loss, contrary to Dr. Borrillo’s
opinion. Also contrary to Dr. Borrillo’s opinion, Dr. Mareska opined that the
decedent’s medical record does not support Dr. Borrillo’s opinion that the T4
fracture would have resulted in permanent loss of purposeful movement of his
extremities had the decedent survived his injury.
     3. The Commission Grants Reconsideration and Denies Compensation
       {¶ 19} The commission subsequently granted reconsideration of the SHO’s
order based on a clear mistake of law, concluding that the SHO erred in finding Dr.
Borrillo’s report to be defective and unreliable. The commission explained that the
SHO’s determination that Dr. Borrillo’s opinion was based on findings not
supported by the medical record speaks to the persuasiveness of his report but does
not preclude it from evidentiary consideration.
       {¶ 20} On April 14, 2021, the commission exercised its continuing
jurisdiction and issued a decision. Citing Wallace, 

, it found that
Dr. McGriff’s report is not reliable evidence to be considered, because he “clearly
did not expressly accept the findings of [the] examining physicians on file.” But



                                            8
                                January Term, 2024




the commission found that both Dr. Borrillo’s and Dr. Mareska’s reports could be
relied on as evidence. Regarding Dr. Mareska’s acceptance of the autopsy findings,
which the SHO had previously found to be lacking, the commission stated that “the
Wallace decision does not require a reviewing physician to blindly accept medical
findings on file which the physician identifies as inconsistent, if the physician
provides an explanation for that opinion.” The commission found Dr. Mareska’s
opinion persuasive and relied solely on his reports to again deny Heilman’s request
for loss-of-use compensation.
                        D. Heilman’s Mandamus Action
       {¶ 21} Heilman filed a complaint in the Tenth District, seeking a
“peremptory or permanent writ of mandamus” directing the commission to take
two actions: (1) vacate its order that denied loss-of-use compensation and (2) grant
her request for loss-of-use compensation. She alleged that the commission’s order
must be vacated “given its reliance on the inherently unreliable report of Dr.
Mareska, its unwarranted rejection of the report of Dr. McGriff, and its failure to
account for the true physical condition of the Decedent’s arms and legs, which did
not function during the remainder of his life.” Heilman further alleged that she is
legally entitled to an order awarding her loss-of-use compensation “because the
only medical reports that could be considered were those of Drs. Borrillo and
McGriff, which both properly established a loss of use of all four limbs.”
       {¶ 22} The Tenth District referred the matter to a magistrate, who
concluded that Dr. Mareska’s reports cannot constitute some evidence on which the
commission can rely, because he did not accept the objective findings of Dr. Scala-
Barnett (who performed the postmortem examination of the decedent’s body) in
contravention of this court’s holding in Wallace. 

 (10th
Dist.). On this basis, the magistrate recommended that the court of appeals grant a
limited writ of mandamus to vacate the commission’s April 14, 2021 order and for
the commission to redetermine Heilman’s request for compensation without




                                         9
                                 SUPREME COURT OF OHIO




consideration of Dr. Mareska’s reports. Id. at ¶ 73. The magistrate did not decide
Heilman’s remaining arguments, including her contention that the commission’s
rejection of Dr. McGriff’s report was unwarranted. See id. at ¶ 66-69. The
commission and Heilman both filed objections to the magistrate’s decision.
        {¶ 23} The Tenth District overruled the objections and adopted the
magistrate’s decision as its own, id. at ¶ 40, and held that the commission abused
its discretion by “improperly relying on Dr. Mareska’s reports,” id. at ¶ 38. In the
court of appeals’ view, the commission’s reliance on Dr. Mareska’s reports does
not comply with Wallace, because although Dr. Mareska stated that he accepted the
findings of the examining physicians, he did not accept the coroner’s autopsy
findings “in practice.” Id. at ¶ 25, citing State ex rel. Hauck v. Indus. Comm., 2007-
Ohio-842, ¶ 3 (10th Dist.). However, the court of appeals concluded that this
determination did not necessarily entitle Heilman to an award of compensation
based on Dr. Borrillo’s report, because the commission was not required to accept
Dr. Borrillo’s factual findings or conclusions, and the court of appeals was not
authorized to determine the weight and credibility of the remaining evidence. 2023-
Ohio-3073 at ¶ 36. The court of appeals held that Heilman had demonstrated a
clear legal right to a limited writ ordering the commission to vacate its order that
denied compensation, issue an order determining whether Heilman has established
the decedent’s alleged losses of use under R.C. 4123.57(B), and grant or deny
compensation accordingly. Id. at ¶ 40.
        {¶ 24} The commission’s appeal and Heilman’s cross-appeal are now
before this court as of right.
                                    II. ANALYSIS
                                 A. Mandamus Standard
        {¶ 25} Heilman is entitled to a writ of mandamus if she shows by clear and
convincing evidence that she has a clear legal right to the requested relief, that the
commission has a clear legal duty to provide that relief, and that she has no adequate



                                          10
                                 January Term, 2024




remedy in the ordinary course of the law. State ex rel. Zarbana Industries, Inc. v.
Indus. Comm., 

. Because the commission’s decision to deny
loss-of-use compensation is a decision regarding the injured worker’s extent of
disability, it is not appealable under R.C. 4123.512(A) and is properly challenged
in mandamus. See State ex rel. Kroger Co. v. Stover, 

 (1987),
paragraph one of the syllabus (holding that an order of the Industrial Commission
that “is a decision as to the extent of disability” is not subject to appeal under former
R.C. 4123.519, which was renumbered R.C. 4123.512(A), see Am.Sub.H.B. No.
107, 145 Ohio Laws, Part II, 2990, 3153-3156).
        {¶ 26} A writ of mandamus may lie when there is a legal basis to compel
the commission to perform its duties under the law or when the commission has
abused its discretion in carrying out its duties. State ex rel. Gen. Motors Corp. v.
Indus. Comm., 

, ¶ 9. “Where a commission order is adequately
explained and based on some evidence, even evidence that may be persuasively
contradicted by other evidence of record, the order will not be disturbed as
manifesting an abuse of discretion.” State ex rel. Mobley v. Indus. Comm., 1997-
Ohio-181, ¶ 16.      But “[a] mandatory writ may issue against the Industrial
Commission if the commission has incorrectly interpreted Ohio law.” State ex rel.
Gassmann v. Indus. Comm., 

 (1975).
                           B. The Commission’s Appeal
        {¶ 27} The commission first contends that the Tenth District’s application
of our holding in Wallace to Dr. Mareska’s reports is overly strict and deprives the
commission of its ability to evaluate the evidence.
        {¶ 28} A nonexamining physician’s opinion has been likened to a response
to a hypothetical question used to assist the fact-finder’s understanding of the
matter at hand. See Wallace, 

. To ensure the evidentiary
reliability of a nonexamining physician’s opinion, the nonexamining physician
must accept all findings of the examining physicians, but not the opinions drawn




                                           11
                             SUPREME COURT OF OHIO




therefrom. 

 (requiring a nonexamining physician to “expressly accept” all
findings of the examining physicians); but see Lampkins, 

(recognizing that the “expressly accept” requirement in Wallace has been relaxed).
“If a non-examining physician fails to accept the findings of the doctors or assumes
the role of the Industrial Commission, the medical opinion that is rendered does not
constitute evidence to support a subsequent order of the commission.” 

.   More particularly, the medical opinion rendered “cannot, by itself, be
considered evidence upon which the commission could base its final order.”
(Emphasis added.) 

.
          {¶ 29} Under the hypothetical-question analogy discussed in Wallace, it
follows that when a nonexamining physician opines on the reliability or credibility
of the objective findings of examining physicians—while rejecting those
findings—the nonexamining physician assumes the role of the fact-finder and, thus,
exceeds its role: “[T]he commission has exclusive discretion to determine the
weight and credibility of the evidence, as well as all disputed facts.” State ex rel.
Romero v. River City Drywall Supply, Inc., 

, ¶ 18. As the Tenth
District stated, “Wallace makes clear that a reviewing physician exceeds his role in
the claim review process by offering a medical opinion that is based on anything
other than the examining physicians’ objective findings.” 

(10th Dist.). See State ex rel. Paragon v. Indus. Comm., 

 (1983);
see also State ex rel. Rhodeback v. Johnstown Mfg., Inc., 

(1986).
          {¶ 30} Here, Dr. Mareska stated that he accepted the findings of the
examining physicians, including Dr. Scala-Barnett’s postmortem examination, but
he also stated that the “reported autopsy findings of the cerebral hemispheres seem
incongruent.” Dr. Mareska concluded that he “could not rely on the described
autopsy findings as being accurate or reliable.”       As further explanation, Dr.
Mareska offered in his addendum report that “the autopsy report has several



                                         12
                                January Term, 2024




instances of either not being consistent within itself, and not being consistent with
expected findings because of the clinical course,” and he provided examples of the
inconsistencies.
       {¶ 31} The commission argues that without Dr. Mareska’s identifying the
inconsistencies in Dr. Scala-Barnett’s autopsy report, the commission would never
have known of the inconsistencies. The commission’s role, however, is to resolve
any conflicts or inconsistencies with the evidence when determining the extent of
an injured worker’s disability. See, e.g., State ex rel. Dobbins v. Indus. Comm.,

, ¶ 8 (“The commission is the sole evaluator of evidentiary weight
and credibility.”). Thus, by choosing to discredit Dr. Scala-Barnett’s objective
findings regarding the cerebral hemisphere and to give more weight to other
physicians’ clinical findings, Dr. Mareska overstepped his role as a nonexamining
physician and assumed the role of the commission. Because Dr. Mareska stated
that he “could not rely on the described autopsy findings as being accurate or
reliable,” the commission could not base its final order solely on Dr. Mareska’s
medical opinion that the decedent sustained none of the alleged losses of use. See
Wallace, 

; 

 (the medical opinion “cannot, by itself, be
considered evidence upon which the commission could base its final order”).
       {¶ 32} Relying on State ex rel. Teece v. Indus. Comm., 

(1981), the commission nevertheless contends that Dr. Mareska’s reports should be
deemed “relevant and admissible” evidence that can be considered by the
commission. In Teece, this court applied the Wallace standard to medical opinions
in a combined-effect claim, i.e., a claim in which the claimant’s application for
compensation was based on two or more allowed conditions. 

;
see also Paragon, 

 (explaining that Wallace, as interpreted in
Teece, “also extends to medical opinions in combined effect claims, where the
examining physician only examines for one allowed condition”).




                                         13
                             SUPREME COURT OF OHIO




       {¶ 33} The claimant in Teece received permanent-partial-disability
compensation for two separate industrial injuries and was granted an additional
allowance for anxiety neurosis. At issue were the reports of four physicians
relevant to the claimant’s subsequent applications for permanent-total-disability
(“PTD”) compensation. Two orthopedic specialists had examined the claimant for
her physical injuries (and reported conflicting objective findings) and two
psychiatrists had examined the claimant for the allowed condition of anxiety
neurosis. 

. This court determined that the psychiatrists were
nonexamining physicians for the claimant’s physical injuries and that they were
required, in accordance with Wallace, to expressly adopt the factual findings of the
orthopedic specialists. 

. Because they had not done so, this court held
that their reports could not, by themselves, be considered evidence on which the
commission could rely to deny PTD compensation. 

 citing Wallace.
       {¶ 34} Nevertheless, this court held that the evidence in these reports was
“relevant and admissible” and that the commission could use the factual findings
contained therein to test the credibility and reliability of the only qualified medical
report in the record. 

; see also State ex rel. Rouch v. Eagle Tool &
Mach. Co., 

 (1986) (lead opinion) (describing our
holding in Teece as a modification of our holding in Wallace). As this court
explained in Teece, the holding in Wallace does “not require the commission to
accept the factual findings stated in a properly qualified medical report at face value
and unquestioningly adopt them as those of the commission.” 

. “To
do so would be tantamount to allowing a physician to determine disability rather
than the commission.” 

       {¶ 35} Heilman’s position on appeal is that Teece is distinguishable from
this case. In Teece, all four physicians were examining physicians for at least one
of the claimant’s allowed conditions. Each physician had personal knowledge of
the claimant and issued objective factual findings based on their examinations. Dr.



                                          14
                               January Term, 2024




Mareska, on the other hand, had no personal knowledge of the decedent’s injuries
on which he could make objective factual findings, and he did not do so. Moreover,
neither this court nor the Tenth District has applied the holding in Teece to a case
such as this, i.e., a case in which the physician whose report fails to comply with
the Wallace standard has not examined the injured worker for at least one allowed
condition.
       {¶ 36} In another case that did not involve a combined-effect claim—the
claim that was involved in Teece—this court held that the commission could not
consider as medical evidence a nonexamining physician’s report that failed to
comply with Wallace, 

, but clarified that the commission could
“seek an analysis of the medical report from [the nonexamining physician] to serve
as guidance for its determination,” State ex rel. Montello v. Indus. Comm., 

 (1986). Here, the commission’s argument in reliance on Teece is
consistent with this court’s statement in Montello. Our holding in Montello evinces
a recognition, just as in Teece, that a noncompliant medical report may remain
relevant and admissible, but for limited purposes. In other words, although the
medical opinion rendered in a noncompliant report “cannot, by itself, be considered
evidence upon which the commission could base its final order” (emphasis added),

, the commission is not precluded from obtaining an analysis from the
nonexamining physician to serve as guidance when reviewing the remaining
medical evidence for its final determination, 

.
       {¶ 37} Here, the commission obtained an addendum report from Dr.
Mareska, in which he provided analysis and explanation of why he believed the
autopsy findings in Dr. Scala-Barnett’s report were incongruent, inaccurate, and
unreliable. In accordance with this court’s observation in Montello (and reasoning
in Teece), the commission had discretion to use the analysis in Dr. Mareska’s
reports only as guidance in reviewing the remaining medical evidence in the file.
Instead, the commission found that Dr. Mareska’s reports were persuasive medical




                                        15
                             SUPREME COURT OF OHIO




evidence and relied solely on his medical opinion to deny Heilman’s request for
loss-of-use compensation.
       {¶ 38} In accordance with our holding in Wallace, we uphold the court of
appeals’ conclusion that the commission abused its discretion by basing its order
solely on Dr. Mareska’s reports. However, the court of appeals’ determination that
the commission should wholly “se[t] aside Dr. Mareska’s reports” is too broad.

 (10th Dist.); see also id. at ¶ 72 (magistrate’s opinion that
Dr. Mareska’s reports “must be removed from consideration”). The commission
may use Dr. Mareska’s reports as guidance in reviewing the remaining medical
evidence in the file.
       {¶ 39} The commission next argues that it was error for the Tenth District
to remove Dr. Mareska’s reports from consideration merely because he challenged
Dr. Scala-Barnett’s autopsy findings of the decedent’s brain. By doing so, the
commission contends that the court of appeals impermissibly reweighed the
evidence and substituted its opinion for the commission’s.
       {¶ 40} We reject the commission’s argument. The Tenth District did not
determine that other evidence was more credible than Dr. Mareska’s reports; it held
that the commission could not rely solely on his medical opinion, because he had
not accepted the objective factual findings of all examining physicians. 2023-Ohio-
3073 at ¶ 17, 24-25 (10th Dist.). Nor did the court of appeals substitute its opinion
for that of the commission—rather, the court of appeals returned the matter to the
commission for it to exercise its discretion in accordance with the law. Id. at ¶ 38.
       {¶ 41} For these reasons, we conclude that Heilman demonstrated a clear
legal right to a limited writ ordering the commission to vacate its order denying
Heilman’s request for loss-of-use compensation and to issue a new order granting
or denying the request. While the commission may not consider Dr. Mareska’s
reports as “some evidence” on which it may solely base its decision, see Wallace,

, it may use the observations and analysis in his reports as



                                         16
                                January Term, 2024




guidance in evaluating the remaining medical evidence in the file, consistent with
Montello, 

, and Teece, 

.
    C. Heilman’s “Alternative Reasons for Affirming the Lower Court’s
                                      Ruling”
       {¶ 42} In response to the commission’s appeal, Heilman offers “alternative
reasons for affirming” the Tenth District’s ruling that the commission’s order was
not supported by some evidence. Heilman asserts that (1) the commission also
misapplied Wallace by rejecting Dr. McGriff’s report, (2) Dr. Mareska’s reports
are internally inconsistent, and (3) Dr. Mareska “contrived a consciousness test and
injected an unprecedented duration-of-survival requirement.” However, because
the commission’s appeal is not well taken for the reasons discussed above, we do
not consider Heilman’s “alternative reasons for affirming.” See Parton v. Weilnau,

, 171 (1959) (under R.C. 2505.22, assignments of error filed by an
appellee “as a shield to protect the judgment of the lower court” are to be considered
“only for the purpose of preventing a reversal of the judgment under review”).
                           D. Heilman’s Cross-Appeal
       {¶ 43} In her cross-appeal, Heilman argues that we should grant a full
peremptory writ directing the commission to grant Heilman’s request for
compensation, explaining that a peremptory writ was “the only relief that was
originally available in mandamus at the time the framers of Ohio’s Constitution
defined that power.” She contends that issuing a limited writ of mandamus—which
she describes as “functionally equivalent to a remand”—is “legal error, upsetting
the constitutional separation of powers” because “[r]emand after review is an
appellate remedy,” “appeals are an adequate remedy at law,” and “Ohio law does
not provide for an appeal, nor any appellate remedies like a remand, in disputes like
this one over the extent of disability.”      See R.C. 4123.512(A) (providing a
claimant’s right to appeal to the common pleas court a final order of the commission
in any injury or occupational disease case, “other than a decision as to the extent of




                                         17
                             SUPREME COURT OF OHIO




disability”); see also Clendenin v. Girl Scouts of W. Ohio, 

(the right to appeal provided in R.C. 4123.512(A) is limited to orders that decide a
claimant’s “right to participate in the workers’ compensation fund”).
       {¶ 44} Very simply, we lack the authority to order the commission to grant
Heilman’s application for loss-of-use compensation as she requested in her
complaint. Indeed, this court observed that a writ of mandamus will not issue to
control the commission’s discretion with respect to an award of compensation. See
Copperweld Steel Co. v. Indus. Comm., 

 (1944) (“The power
to determine compensability is vested in the commission and cannot be interfered
with as long as its discretion is exercised soundly and within legal bounds.”); see
also State ex rel. Scott v. Masterson, 

, 404-405 (1962) (a court
may compel a public agency to exercise its discretion, but it cannot control such
discretion). It was therefore not error for the court of appeals to deny Heilman’s
request for a writ that would compel the commission to grant her application for
compensation.
       {¶ 45} Instead, our workers’ compensation caselaw reflects a long-standing
practice of granting a limited writ when a relator fails to demonstrate entitlement to
the full relief sought in mandamus and evidentiary questions remain. See, e.g.,
State ex rel. GF Business Equip. Inc. v. Indus. Comm., 

 (1982)
(issuing a limited writ requiring the commission to make a factual determination
regarding a physician’s report); State ex rel. Burroughs v. Ohio Hwy. Patrol
Retirement Sys. Bd., 

 (explaining that a limited writ was
justified in the workers’ compensation case “because the commission’s decision
was not based on sufficient evidence”), State ex rel. Posey v. Indus. Comm., 

 (1984) (issuing a limited writ requiring the commission to have
further medical evaluations performed when the record was devoid of any evidence
on which the commission could approve or deny the request for compensation);
State ex rel. Ryan Alternative Staffing, Inc. v. Moss, 

, 21



                                         18
                                January Term, 2024




(issuing a limited writ returning the matter to the commission for consideration
under the correct standard rather than a writ ordering the commission to deny
compensation because the commission is the exclusive finder of fact).
       {¶ 46} In cases in which the evidence relied on by the commission was
discredited, this court has held that the proper procedure is to return the case to the
commission. See Lampkins, 

 (temporary-total disability);
State ex rel. Zamora v. Indus. Comm., 

 (1989) (PTD). And we
have issued limited writs in at least two other cases similar to this one in which the
commission relied on a nonexamining physician’s report that failed to comply with
the Wallace standard. See Rhodeback, 

, and State ex rel. Bowie
v. Greater Cleveland Regional Transit Auth., 

. Accordingly, in line
with our established practice of issuing limited writs of mandamus when we do not
have the authority to issue a full writ, we reject Heilman’s request for a full
peremptory writ.
       {¶ 47} Heilman next contends that a limited writ compelling further
hearings is unwarranted when “all proper evidence” supports a claim for workers’
compensation benefits. Contrary to Heilman’s contention, the Tenth District did
not compel further hearings before the commission. Instead, the appellate court
ordered the commission to vacate its order denying compensation, determine
whether Heilman has established the alleged losses of use, and enter an order
granting or denying compensation accordingly. 

 (10th
Dist.). Regardless, we must refrain from determining whether the remaining
evidence demonstrates the requisite losses of use. “To go further and assess the
credibility of the evidence would place this court ‘in the role of a “super
commission,” a role never envisioned by either the Ohio Constitution or the General
Assembly.’ ” State ex rel. Consolidation Coal Co. v. Indus. Comm., 1997-Ohio-
46, ¶ 9, quoting State ex rel. Burley v. Coil Packing, Inc., 

(1987). “The commission alone shall be responsible for the evaluation of the




                                          19
                             SUPREME COURT OF OHIO




weight and credibility of the evidence before it.” 

. And while
Heilman asserts that Dr. Borrillo’s report is the only remaining evidence on which
the commission may rely, we agree with the Tenth District that ordering the
commission to accept Dr. Borrillo’s factual findings and conclusions “as the
commission’s own ‘would be tantamount to allowing a physician to determine
disability rather than the commission.’ ” 

 (10th Dist.),
quoting Teece, 

.
       {¶ 48} This is not a situation in which our returning the matter to the
commission after vacating its decision would serve “no useful purpose,” State ex
rel. Gay v. Mihm, 

. Although precluding the commission from
relying on Dr. Mareska’s reports as medical evidence leaves the commission’s
order unsupported, “[t]he lack of ‘some evidence’ supporting the denial of
compensation . . . is not automatically ‘some evidence’ supporting an award,” State
ex rel. Abner v. Mayfield, 

 (1992), citing Lampkins, 

; accord Bowie, 

. As noted by the commission,
Heilman is not entitled to a presumptive award for all alleged losses of use merely
because Dr. Mareska’s reports alone are insufficient as evidence to deny the award.
Accordingly, we conclude that it was not error for the court of appeals to return the
matter to the commission to determine, in the first instance, whether the remaining
evidence establishes that the decedent suffered the alleged losses of use before he
died. See 

 (10th Dist.).
                               III. CONCLUSION
       {¶ 49} For the foregoing reasons, we uphold the court of appeals’
determination that the commission is prohibited from relying on Dr. Mareska’s
reports as “some evidence” on which it may base its decision. However, the
commission may use the observations and analysis in Dr. Mareska’s reports as
guidance in evaluating the credibility of the remaining medical evidence in the file.
Accordingly, we affirm the Tenth District Court of Appeals’ judgment granting a



                                         20
                                January Term, 2024




limited writ of mandamus. The commission shall vacate its order that denied
Heilman’s request for scheduled-loss compensation and issue an order determining
whether Heilman established under R.C. 4123.57(B) the decedent’s loss of use of
both arms and legs, loss of sight in both eyes, and loss of hearing in both ears and
grant or deny compensation accordingly.
                                                                 Judgment affirmed.
                               __________________
       KENNEDY, C.J., joined by DEWINE and DETERS, JJ., dissenting.
       {¶ 50} There are two reasons why appellee and cross-appellant, Patricia A.
Heilman, is not entitled to scheduled-loss compensation for workplace injuries that
her husband, Arthur J. Heilman, suffered before he died as the result of an industrial
accident. First, the statutory scheme at issue here allows scheduled-loss benefits to
be paid to an injured worker’s surviving spouse in only two circumstances: (1)
when an award had been made before the injured worker’s death and (2) when the
injured worker suffered the loss of a member by severance. R.C. 4123.57(B).
Neither happened here. Second, the Industrial Commission did not abuse its
discretion in finding that Arthur had not suffered a scheduled loss, i.e., the loss of
use of his limbs, the loss of sight in both eyes, or the permanent and total loss of
hearing in both ears. The Tenth District Court of Appeals therefore erred in issuing
a writ of mandamus compelling the commission to vacate its order, and its
judgment should be reversed. Because the majority does not, I dissent.
                                 Survivor Benefits
       {¶ 51} R.C. 4123.57(B) provides for payment of scheduled-loss benefits in
weekly installments to compensate the injured worker for the loss of certain body
parts. The General Assembly included two provisions in R.C. 4123.57(B) that
allow the injured worker’s surviving spouse to receive those scheduled-loss
payments when the injured worker dies.




                                         21
                             SUPREME COURT OF OHIO




       {¶ 52} The first states that “[w]hen an award under [R.C. 4123.57(B)] has
been made prior to the death of an employee all unpaid installments accrued or to
accrue under the provisions of the award shall be payable” to the injured worker’s
surviving spouse. R.C. 4123.57(B). The second provides that if an injured worker
“has sustained the loss of a member by severance, but no award has been made on
account thereof prior to the employee’s death, the administrator shall make an
award in accordance with this division for the loss,” and that amount is payable to
the injured worker’s surviving spouse. 

       {¶ 53} The General Assembly limited the availability of survivorship
benefits stemming from scheduled losses to these two circumstances to “ensure[]
that death benefits for loss of use have a strong evidentiary basis.” State ex rel.
Waste Mgt. of Ohio, Inc. v. Indus. Comm., 

 (Kennedy, J.,
dissenting). In both situations, the loss of use is established either because it has
already been proven and resulted in an award or because it is self-evident by
severance.   Otherwise, determining whether a deceased worker suffered any
compensable loss of use could be impossible.
       {¶ 54} Patricia is not entitled to receive scheduled-loss benefits under either
prong of R.C. 4123.57(B). No scheduled-loss benefits were awarded before
Arthur’s death; he died soon after the injury occurred, and Patricia did not request
scheduled-loss compensation until almost a year after her husband died. Therefore,
no payments “accrued or [were] to accrue” under R.C. 4123.57(B). And because
Arthur did not suffer a scheduled loss by severance, the second prong, which allows
the surviving spouse to receive an injured worker’s scheduled-loss benefits that had
not been previously awarded, is inapplicable. Nothing in R.C. 4123.57(B) provides
for payment of scheduled-loss compensation to Patricia.
       {¶ 55} Arthur’s death is tragic, but the statutory scheme the General
Assembly enacted does not permit an award of scheduled-loss compensation to his
surviving spouse under these facts. This alone is reason enough to reverse the



                                         22
                               January Term, 2024




judgment of the court of appeals. The second reason why reversal is necessary is
discussed next.
                          Expert Opinion as Evidence
       {¶ 56} A witness is traditionally “‘incompetent’ to testify to any fact unless
he or she possesses firsthand knowledge of that fact.”              Weissenberger,
Weissenberger’s Ohio Evidence Treatise, § 602.1, at 19 (2024); see also Evid.R.
602 (“A witness may not testify to a matter unless evidence is introduced sufficient
to support a finding that the witness has personal knowledge of the matter.”). There
is an exception to the personal-knowledge requirement that allows an expert to give
an opinion by answering a hypothetical question based on an assumed set of facts.
Evid.R. 705; 1 McCormick on Evidence, § 14 (8th Ed.). However, in Ohio, “[t]he
facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by the expert or admitted in evidence at the
hearing.” (Emphasis added.) Evid.R. 703.
       {¶ 57} The court has applied these principles to workers’ compensation
proceedings. E.g., State ex rel. Wallace v. Indus. Comm., 

(1979). When a physician who has not personally examined an injured worker
gives a medical opinion about the worker’s injury, the physician is first “required
to review all the relevant medical evidence and accept [as true] the objective
findings of all the examining physicians.” State ex rel. Romero v. River City
Drywall Supply, Inc., 

, ¶ 12, citing 

. This is the
Wallace rule.
       {¶ 58} In this case, when a piece of machinery exploded, Arthur was struck
in the head by a metal beam and never regained consciousness. John C. Mareska,
M.D., completed a medical-file review related to Patricia’s claim for scheduled-
loss compensation for her husband’s injuries. Included in Arthur’s medical file is
the coroner’s autopsy report, in which the coroner concluded that the cause of death
was “craniocerebral injuries.” In addition to the medical findings by Arthur’s




                                         23
                             SUPREME COURT OF OHIO




examining physicians, Dr. Mareska also reviewed the opinions given by Patricia’s
medical expert.
         {¶ 59} Dr. Mareska concluded that certain findings the coroner had made
in relation to Arthur’s brain injury—specifically, the description of the decedent’s
cerebral hemispheres—were contradictory and unreliable, and Dr. Mareska said
that he “could not rely on the described”—i.e., those specific—“autopsy findings.”
And because this part of Dr. Mareska’s opinion did not conform to the Wallace
rule, the majority decides that his entire report is not evidence.
         {¶ 60} Dr. Mareska discounted a few of the coroner’s findings regarding
the physical manifestations of Arthur’s brain injury, but doing that should not taint
his other opinions on other subjects relying on other medical findings. Dr. Mareska
gave several different expert opinions regarding Arthur’s injuries. He explained
that insufficient medical evidence existed to show that Arthur had lost his vision or
his hearing. Regarding Arthur’s use of his limbs, Dr. Mareska concluded that any
loss was not caused by injury either to the arms and legs or to the spinal cord.
         {¶ 61} And finally, in a separate section of his report, Dr. Mareska opined
that the coroner’s contradictory descriptions of Arthur’s cerebral hemispheres were
not supported by the CT scan, radiographic reports, the neurosurgical operative
procedure report, and other findings within the autopsy. It is this last opinion that
is contrary to the Wallace rule. But importantly, that opinion related solely to the
question whether Arthur had lost the use of his limbs from his loss of brain function.
Dr. Mareska’s disagreement with the coroner’s findings therefore did not taint his
opinions that (1) Arthur had not suffered the loss of vision or hearing or (2) Arthur’s
arms, legs, and spinal cord showed no injury that could cause the loss of use of his
limbs.
         {¶ 62} No one disputes that Arthur suffered a severe brain injury causing
loss of brain function. Nor do the parties point to any evidence in the record
showing that disagreement over the physical manifestations of Arthur’s brain injury



                                          24
                                January Term, 2024




makes any difference in determining whether he lost the use of his limbs or that it
affects the evidentiary value of any of Dr. Mareska’s opinions. However, to the
extent that the commission could not rely on Dr. Mareska’s opinion that Arthur’s
brain injury did not cause loss of use of his limbs, any error is harmless because
there is no scheduled-loss compensation available for loss of brain function.
        {¶ 63} R.C. 4123.57(B) provides scheduled-loss compensation for the loss
of digits, vision, hearing, and use of limbs. Neither the loss of use of the brain stem
nor the loss of brain functioning are compensable losses under the partial-disability
statute. See State ex rel. Smith v. Indus. Comm., 

 (“[T]he
General Assembly has not included loss of brain-stem functioning in the schedule
for compensation set forth in R.C. 4123.57.”).
        {¶ 64} In Smith, this court addressed “whether R.C. 4123.57(B) permits an
award of compensation for the scheduled loss of vision or hearing when the
inability to comprehend sights or sounds results from a lack of brain-stem
function.” Id. at ¶ 12. This court held that it did not, explaining that “R.C. 4123.57
authorizes compensation for loss of sight when the claimant shows an actual loss
of vision as result of injury to the eye and for loss of hearing occasioned by injury
to the ear.” Id. at ¶ 15. Here, there was no injury to Arthur’s eyes or ears, so Smith
precludes the award of scheduled-loss compensation for loss of vision and hearing.
        {¶ 65} Our decision in Smith did not address whether compensation is
available for the loss of use of the arms or legs caused by loss of brain function.
That question surfaced in State ex rel. Walters v. Indus. Commission of Ohio, 2024-
Ohio-552, ¶ 34, but we declined to answer it. Nonetheless, we noted in Walters
that “Smith’s basic premise seemingly applies to any alleged loss under R.C.
4123.57(B)—namely, in the absence of an injury to the affected body part, evidence
of a brain injury that precludes definitive testing of the alleged loss is insufficient
to support a finding that the affected body part no longer functions.” Walters at
¶ 31.




                                          25
                              SUPREME COURT OF OHIO




        {¶ 66} And in considering whether the injured worker in Walters had
suffered a loss of use of limbs, we pointed out that “[h]ospital records indicate that
decedent was unconscious and intubated at the scene of the accident, that he
remained comatose until his death and was thus unable to participate in motor and
coordination examinations of his extremities, and that he did not suffer any injuries
to his arms or legs.” Id. at ¶ 38. That sounds like this court was applying Smith to
the loss of the use of limbs. However, this court went on to discuss the dueling
expert reports before the commission and ultimately concluded that some evidence
supported the denial of scheduled-loss compensation. Id. at ¶ 38-39.
        {¶ 67} In this case, Arthur did not have an injury to his arms and legs, and
testing his use of his limbs was impossible because he was unconscious due to brain
injury and heavy sedation. The fact that Arthur suffered brain damage that left him
unresponsive does not, by itself, show that his arms and legs did not work.
Patricia’s expert, Dr. Donato J. Borillo, did opine that there was damage to Arthur’s
spine that would have caused the loss of use of his arms or legs even if he had
regained consciousness. Dr. Borillo, however, was contradicted by Dr. Mareska,
who stated that there was no spinal injury that would have caused the loss of use of
Arthur’s arms and legs. It is the commission’s role to resolve this factual conflict.
        {¶ 68} In sum, Dr. Mareska’s expert report provides some evidence that
Arthur did not lose his vision or hearing and that no injury to his arms, legs, or spine
caused Arthur to lose the use of his limbs. And although Arthur’s brain injury may
have prevented him from consciously seeing, hearing, and moving, that does not
mean that his eyes, ears, arms, and legs would not have worked if Arthur had been
able to recover from his brain injury. Therefore, the commission did not abuse its
discretion by denying Patricia’s request for scheduled-loss compensation, and she
is not entitled to a writ of mandamus to compel the commission to vacate its
decision.




                                          26
                                January Term, 2024




                                     Conclusion
       {¶ 69} R.C. 4123.57(B) does not authorize a surviving spouse to receive
compensation for the injured worker’s scheduled loss when the worker dies before
that compensation can be awarded and when the loss is not caused by severance.
And even if compensation were available in these circumstances, the commission
denied the claim based on its finding that no scheduled loss occurred, and that
determination is supported by some evidence and therefore was not an abuse of
discretion.
       {¶ 70} The Tenth District Court of Appeals should have denied the writ
Patricia requested, and for this reason, its judgment should be reversed. Because
the majority does not do that, I dissent.
                               __________________
       Plevin & Gallucci Co., L.P.A., Frank L. Gallucci III, and Bradley E. Elzeer
II; and Flowers & Grube, Paul W. Flowers, Louis E. Grube, and Kendra N. Davitt,
for appellee and cross-appellant.
       Dave Yost, Attorney General, and Natalie J. Tackett, Assistant Attorney
General, for appellant and cross-appellee.
                               __________________




                                            27