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State of Ohio Ex Rel. Becky Kish v. Kroger Co. and Industrial

November 8, 2011

STATE OF OHIO EX REL. BECKY KISH, RELATOR,
v.
KROGER CO. AND INDUSTRIAL
COMMISSION OF OHIO, RESPONDENTS.



The opinion of the court was delivered by: Dorrian, J.

Cite as State ex rel. Kish v. Kroger Co.,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶1} Relator, Becky Kish ("relator"), filed an original action seeking a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission"), to vacate its order that denied relator's request for an award for the loss of use of her left upper extremity ("left arm") and to enter an order granting that award.

{¶2} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, which includes findings of fact and conclusions of law and is appended to this decision, recommending that this court deny the requested writ.

{¶3} Relator sought a scheduled loss of use award for loss of use of her left arm arising from an industrial injury suffered in 1990. The commission denied relator's request. The magistrate concluded that the commission did not abuse its discretion in reaching this ruling.

{¶4} Unfortunately, relator's objections to the magistrate's decision are not clearly enumerated in her brief. However, it appears that relator raises the following four objections to the magistrate's decision:

[1.] [T]he [magistrate's] decision is devoid of legal and evidentiary support and results in the complete emasculation of the "some evidence" rule, as well as other well established principals [sic] of law. (Relator's brief at 1.)

[2.] The Magistrate [erred by] reject[ing] Relator's first argument that the Commission could not rely upon any of the reports of Dr. Randolph as he failed to properly consider all of the allowed conditions in Ms. Kish's claim. (Relator's brief at 1.)

[3.] The Magistrate next [erred by] reject[ing] Relator's argument that Dr. Randolph was a non-examining physician at the time when he issued his opinions relative [to] Ms. Kish's loss of use petition. (Relator's brief at 4.)

[4.] [The Magistrate's decision should be overruled because] the test she applied to determine whether Ms. Kish was entitled to a loss of use award for her left upper extremity was contrary to law. (Relator's brief at 8.)

{¶5} Generally, there must be "some evidence" supporting the commission's ruling on a claim for loss of use compensation. See State ex rel. Toledo Hosp. v. Indus. Comm., 10th Dist. No. 03AP-581, 2004-Ohio-3315, ¶7. Relator's first apparent objection to the magistrate's decision is that the magistrate erred in finding that there was some evidence to support the commission's denial of relator's claim. In effect, this argument relies on relator's apparent second and third objections and is based on the premise that the medical reports of David C. Randolph, M.D. ("Dr. Randolph") could not constitute some evidence upon which the commission could rely. For the reasons explained below, we overrule relator's second and third objections. Accordingly, we conclude that Dr. Randolph's reports constituted some evidence in support of the commission's decision, and we overrule relator's first objection.

{¶6} In her second apparent objection to the magistrate's decision, relator asserts that the magistrate erred by rejecting her argument that the commission could not rely on Dr. Randolph's reports because he failed to consider all of relator's allowed conditions. An examining physician must accept all the allowed conditions of a claim in order to render an opinion that may constitute some evidence upon which the commission can rely. State ex rel. Davis-Hodges v. Indus. Comm., 10th Dist. No. 10AP- 183, 2010-Ohio-5871, ¶28. Relator claims that Dr. Randolph failed to properly consider the condition of compartment syndrome associated with the fracture or dislocation of her left elbow, which the commission granted in 2002. We note that the magistrate concluded that relator waived this argument because there was no indication in the record that she raised this issue in her appeal from the order of the district hearing officer ("DHO"). (See Magistrate's Decision, ¶44-46.) However, the magistrate also addressed the merits of this argument, and we will consider relator's objection to the magistrate's ruling on this issue.

{¶7} Dr. Randolph examined relator on February 23, 2009. Based on this examination, he issued an initial report on March 5, 2009 ("March report"). Dr. Randolph subsequently issued additional reports on June 21, 2009 ("June report") and October 2, 2009 ("October report"), but did not re-examine relator before issuing those reports.

{¶8} Dr. Randolph's March report and June report refer to the relevant allowed condition as "early complications of trauma," rather than "compartment syndrome." Relator argues that this indicates that Dr. Randolph did not properly consider the condition. The magistrate concluded that Dr. Randolph considered all allowed conditions, finding that compartment syndrome is a subcategory of the medical coding category for certain early complications of trauma. (See Magistrate's Decision, ¶47.) Following our independent review of the record, we conclude that Dr. Randolph properly considered all of relator's allowed conditions. Although Dr. Randolph's reports referred to "early complications of trauma," his October report also expressly referred to records from Douglas C. Gula, D.O. ("Dr. Gula") referring to compartment syndrome associated with a fracture or dislocation of relator's left elbow. Thus, Dr. Randolph was aware of this condition and must necessarily have considered it in order to respond to Dr. Gula's report. Accordingly, we overrule relator's second objection to the magistrate's decision.

{¶9} Relator's third apparent objection to the magistrate's decision is that the magistrate erred by rejecting relator's argument that Dr. Randolph was a non-examining physician when he issued his June and October reports. Relator argues that because the commission implicitly rejected Dr. Randolph's March report and because Dr. Randolph did not conduct another physical examination before issuing his later reports, then he must be considered a "non-examining" physician. Relator asserts that the magistrate's decision improperly applied the precedent from State ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17.

{¶10} In Zamora, the Supreme Court of Ohio held that "it would be inconsistent to permit the commission to reject [a doctor's] report at one level, for whatever reason, and rely on it at another." Id. at 19. Relator argues that the DHO implicitly rejected Dr. Randolph's March report by relying on the reports of Dr. Gula and James T. Lutz, M.D. ("Dr. Lutz") in allowing further medical treatment for relator. Dr. Randolph did not re- examine relator before issuing his later reports and instead relied on his prior physical examination. Relator argues that, when the DHO and staff hearing officer ("SHO") later relied on Dr. Randolph's June and October reports, the commission violated Zamora.

{¶11} The Supreme Court of Ohio further explained Zamora in State ex rel. Crocker v. Indus. Comm., 111 Ohio St.3d 202, 2006-Ohio-5483. In Crocker, the Supreme Court held that "[w]hat the commission cannot do is accept the same doctor's opinion on one matter that it previously rejected." Id. at ¶16. In this case, Dr. Randolph's March report addressed the questions of what, if any, further treatment was appropriate for relator's condition and whether her medication was necessary and appropriate. These questions were relevant to relator's motion for continued treatment, which the commission granted. Dr. Randolph did not offer an opinion in the March report as to whether relator had suffered a loss of use of her left arm. Therefore, by rejecting this report, the commission only rejected Dr. Randolph's conclusion that no further treatment was necessary. The commission did not reject the results of his physical examination, which also formed the basis of his later reports. Likewise, the commission did not reject his opinion on the loss of use issue because he offered no opinion in the March report as to whether relator suffered a loss of use. Thus, the commission did not violate Zamora by relying on Dr. Randolph's June and October reports in resolving the loss of use claim, even though it had previously rejected his conclusion on the continued treatment issue in his March report. See State ex rel. Sauder Woodworking Co. v. Indus. Comm., 10th Dist. No. 05AP-24, 2007-Ohio-3993, ¶43 (holding that Zamora did not bar the commission from relying on a physician's report containing an opinion that he had not previously expressed in earlier reports). Accordingly, we overrule relator's third objection to the magistrate's decision.

{¶12} Finally, in what appears to be her fourth objection to the magistrate's decision, relator asserts that the magistrate applied the wrong test to determine whether she was entitled to a loss of use award. The Supreme Court of Ohio has established that a claimant seeking a loss of use award "must show that the body part was amputated or that 'the claimant suffered the permanent loss of use of the injured bodily member for all practical intents and purposes.' " State ex rel. Tichy v. Indus. Comm., 10th Dist. No. 10AP-477, 2011-Ohio-2612, ¶6, quoting State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, ¶12. Relator claims that the magistrate failed to properly apply this standard because the magistrate stated that Dr. Gula's findings demonstrated that relator retained "some use" of her left arm. (See Magistrate's Decision, ¶64.)

{¶13} This objection is based on the premise that the commission could not rely upon Dr. Randolph's reports and that the only competent evidence on the record was Dr. Gula's reports, Dr. Lutz's records, and other surgical records. As explained above, Dr. Randolph's June and October reports constituted "some evidence" upon which the commission could rely. Moreover, "[n]othing in Alcoa suggests that the talismanic use of the phrase 'for all practical purposes' is required in determining a loss of use claim." State ex rel. Wheeling-Pittsburgh Steel Corp. v. Indus. Comm., 10th Dist. No. 06AP-43, 2007- Ohio-757, ¶4. Here, the magistrate concluded that the commission had some evidence to support its conclusion that relator had not suffered a loss of use of her left arm. The magistrate's use of the term "some use" in an aside referring to Dr. Gula's findings, which the commission did not rely upon, does not constitute misapplication of the Alcoa standard. Accordingly, we overrule relator's fourth objection to the magistrate's decision.

{¶14} After an examination of the magistrate's decision and an independent review of the record and relevant law, we conclude that the magistrate has properly determined the issues raised by relator. We therefore overrule relator's objections to the magistrate's decision and adopt it as our own, including the findings of fact and conclusions of law set forth therein. We deny relator's request for a writ of mandamus.

Objections overruled; writ denied.

BROWN and KLATT, JJ., concur.

APPENDIX

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

State of Ohio ex rel. Becky Kish, Relator, v. Kroger Co. and Industrial Commission of Ohio, Respondents.

(REGULAR CALENDAR)

No. 10AP-882

MAGISTRATE ' S DECISION

Rendered on May 31, 2011

Law Offices of James A. Whittaker LLC, Laura J. Murphy and James A. Whittaker, for relator.

Beirne & Wirthlin Co., LPA, and J. Stephen Wirthlin, for respondent Kroger Co.

Michael DeWine, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶15} Relator, Becky Kish, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied her application seeking an award for total loss of use of her left upper extremity pursuant to R.C. 4123.57(B) and ordering the commission to find that she is entitled to that award.

Findings of Fact:

{¶16} 1. Relator sustained a work-related injury on January 3, 1990 when she slipped on a wet floor. Although relator injured only her left ankle, her resulting injuries were significant and her recovery has been complicated further by various flow-through injuries which occurred as a result of the original ankle injury. At this time, relator's workers' compensation claim is allowed for the following conditions:

Left ankle injury; reflex sympathetic dystrophy; depression; fracture/dislocation left elbow with compartment syndrome; loss of use of the left leg.

{¶17} 2. On March 18, 2009, relator filed a motion seeking the authorization of continued medical treatment for the allowed conditions in her claim. On March 27, 2009, relator filed a motion seeking a scheduled loss of use award for her left upper extremity. Relator's motions were supported by hospital records specifically concerning the numerous surgeries performed in an effort to provide relief for relator's left arm condition. The surgeons who performed those surgeries are Thomas M. Due, M.D. and Edward V. A. Lim, M.D. Relator also submitted the March 20, 2009 report of James T. Lutz, M.D. Dr. Lutz identified the allowed conditions in relator's claim as follows:

* * * Left lower leg injury NOS; depressive disorder NEC; RSD, NOS; fracture left lower humerus NOS-closed; early complications of trauma NEC; and ankylosis left lower leg.

Dr. Lutz opined that the medical treatment and medications were necessary for the treatment of relator's allowed conditions.

{¶18} 3. Relator also submitted the March 25, 2009 report of Douglas C. Gula, D.O. In his report, Dr. Gula provided the following relevant history concerning relator's allowed conditions:

On * * * January 3, 1990, * * * she fell injuring the left ankle. * * * X-rays were taken and she was placed in a splint and instructed to seek orthopedic attention. She initially was seen by Dr. Marco who evaluated the patient and felt that a cast was most appropriate. * * *

After casting of 6 to 8 weeks she was then placed in a Cam Walker for a lengthy period of time. Thereafter, in April 1990, * * * [i]t was felt that Ms. Kish did indeed have reflex sympathetic dystrophy as related to the left lower extremity. A bone scan was obtained[.] * * * [S]he had significant problems with regards to an equinus deformity and was unable to walk. She underwent an extensive course of treatment between 1993 to 1999. * * * She continued with pain about the left ankle and it was felt that an amputation was most appropriate.

It should be noted that in June 2001 she fell down steps secondary to marked weakness of arms after many years of crutch ambulation. * * * [S]he suffered a fracture/dislocation of the left arm. * * * Orthopedic surgical intervention was performed. * * * [I]n addition to the fracture/dislocation, she developed a compartment syndrome as related to left upper extremity. Thereafter, she had a total of 13 surgical procedures. * * *

In the fall of 2001 she was seen in the Cleveland Clinic. It was felt that surgical intervention was most appropriate as related to left lower extremity in the form of an amputation. This was based upon the severe left ...


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