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Jolette v. A T L M, Inc.

Court of Appeals of Ohio, Eighth District

July 18, 2013

NICOLE A. JOLETTE PLAINTIFF-APPELLANT
v.
A T L M, INC., ET AL. DEFENDANTS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-750704

ATTORNEY FOR APPELLANT David L. Meyerson Seaman Garson, L.L.C.

ATTORNEYS FOR APPELLEE ADMINISTRATOR OF THE BUREAU OF WORKERS' COMPENSATION Mike DeWine Attorney General, BY Timothy X. McGrail Assistant Attorney.

BEFORE: Stewart, A.J., S. Gallagher, J., and E.A. Gallagher, J.

JOURNAL ENTRY AND OPINION

MELODY J. STEWART, A.J.

{¶ 1} Following a bench trial, the court denied claimant-appellant Nicole Jolette's appeal from an Industrial Commission order denying her application for an additional allowance of compensation for a work-related injury to her ankle. In making that decision, the court noted that Jolette suffered a subsequent injury to the same ankle yet failed to inform any of the four medical providers who treated her for that injury. The court thus found that the expert conclusions that Jolette's complaints stemmed from the earlier allowance were rendered invalid because they did not consider whether Jolette's current condition was the product of an intervening cause. Jolette argues that the court erred in reaching this conclusion because the Bureau of Workers' Compensation ("bureau") failed to plead intervening injury as an affirmative defense and did not offer any expert medical opinion in support of that defense. She also argues that the court abused its discretion by failing to bar the bureau from offering any evidence of an intervening injury.

{¶2} We find no reversible error. The bureau did not offer, nor did the court consider, evidence of an intervening injury as proof of a break in the chain of causation between the allowed injury and the request for an additional allowance, so any argument about excluding that evidence was irrelevant. Instead, the court rationally concluded that Jolette's failure to inform her medical providers of the subsequent injury rendered their opinions invalid in deciding whether her current condition was grounds for an additional allowance.

I

{¶3} Jolette's sole assignment of error is that the trial court erred in denying her request for an additional allowance for the condition of reflex sympathetic dystrophy ("RSD") and in permitting the bureau to raise and argue intervening injury as an affirmative defense. The parties tried the case on the briefs and arguments of counsel, medical reports, and Jolette's videotaped deposition. The court made factual findings in a written opinion, none of which are contested by Jolette on appeal, so we state those findings in summary form.

{¶4} Jolette suffered a work-related, broken ankle in 1999. Her treatment consisted of the insertion of metal plates and screws to stabilize the ankle. Jolette experienced continuing pain in the ankle, so her surgeon removed the plates and screws and began a course of physical therapy. By September 2000, the surgeon noted that Jolette "is doing well in therapy. Really has great motion in her foot and ankle at this time." Jolette did not seek any additional treatment with the surgeon.

{¶5} In May 2001, Jolette moved to Florida. While working for a cleaning service, she reinjured the same ankle. She claimed to have sought medical treatment for the injury, but offered no medical records to substantiate that claim. She did, however, testify that the doctor she visited believed that she may have broken the ankle again. Jolette also testified that she claimed workers' compensation benefits for that injury.

{¶6} By April 2003, Jolette began experiencing pain in her ankle and sought treatment. She told a doctor that she injured the ankle in 1999, but failed to make any mention of the 2001 injury. As the pain in her ankle persisted, she saw another three doctors for pain management. While all of the doctors mentioned the 1999 injury in their notes, none of them mentioned the 2001 injury. In fact, one of the doctors specifically noted that Jolette denied having any intervening injuries since 1999.

{¶ 7} In August 2009, Jolette filed a claim for an additional allowance for the 1999 injury, claiming reflex sympathetic dystrophy, a chronic pain condition. A district hearing officer denied the claim, relying on the opinion of an independent medical examiner who, while noting that Jolette had chronic pain in her ankle, thought that her "complaints and presentation is inconsistent with reflex sympathetic dystrophy." The claim was further denied by a staff hearing officer and the Industrial Commission, both of whom determined that Jollette did not suffer from RSD.

{¶8} In its conclusions of law, the court found that Jolette's failure to inform any of her doctors, or the independent medical examiner, of the 2001 injury essentially tainted their opinions that Jolette suffered from RSD as a result of the 1999 injury, thus rendering those opinions invalid. The court stated: "without the pertinent information that Plaintiff sustained a second injury to her left ankle after the 1999 incident, any opinion formed by Plaintiff's treating doctors or Defendant's [independent medical examiner] cannot [be] fully accepted." In other words, the court did not specifically find that Jolette did not suffer from RSD, but that it could not give credit to the opinions of the physicians because those opinions were not based on complete medical information — the ...


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