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State ex rel. Staples Office Superstore East Inc. v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

September 30, 2013

State ex rel. Staples The Office Superstore East, Inc., Relator,
v.
Industrial Commission of Ohio and Donna Boyd-Shawver, Respondents.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

Dawson Disantis & Myers, LLC, Shane M. Dawson and Paul V. Disantis, for relator.

Michael DeWine, Attorney General, and Justine S. Casselle, for respondent Industrial Commission of Ohio.

Larrimer & Larrimer, and Thomas L. Reitz, for respondent Donna Boyd-Shawver.

DECISION

KLATT, P.J.

(¶ 1} Relator, Staples the Office Superstore East, Inc., commenced this original action in mandamus seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), to vacate its order granting respondent, Donna Boyd-Shawver ("claimant"), temporary total disability ("TTD") compensation beginning November 29, 2011, and to enter an order denying said compensation.

(¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate found that: (1) the commission's reliance on the November 23, 2011 report of Dr. Cummings is foreclosed because it is based in part on a non-allowed low back condition; (2) Dr. Cummings' progress reports mandate evidentiary elimination of his C-84s and MEDCO-14s; and (3) a portion of the award cannot be saved by the commission's reliance on the report of Dr. Berlet. Therefore, the magistrate has recommended that we grant relator's request for a writ of mandamus.

(¶ 3} The commission has filed objections to the magistrate's decision. The commission first asserts that the magistrate erred in concluding that the commission relied on the claimant's low back pain in granting TTD compensation. We disagree.

(¶ 4} As noted by the magistrate, a newly-identified condition that may be related to an industrial injury must be formerly recognized in the claim if that condition is to become a basis for compensation. State ex rel. Jackson Tube Serv., Inc. v. Indus Comm., 99 Ohio St.3d 1, 2003-Ohio-2259. Here, the commission relied upon Dr. Cummings' reports in granting TTD. Dr. Cummings' reports strongly suggest that the claimant's low back pain was a factor in reaching his opinion that the claimant needed a seated-only work restriction. Dr. Cummings makes a number of references to problems the claimant was experiencing with her lumbar spine, including pain on movement, limited motion, and tenderness to palpation. In his November 23, 2011 narrative report following his examination of the claimant, he stated that:

Also, due to the amount of standing and walking Donna is required to do, in spite of her restrictions, she has developed low back pain as documented above. Due to Donna's progressive pain symptoms, she will be restricted to a seated job assignment.

(¶ 5} These portions of Dr. Cummings' report strongly suggest that claimant's low back pain was part of the basis for his imposition of the work restriction. Although Dr. Cummings' reports indicate that there is a causal relationship between the claimant's allowed claim ("left fibula fracture; peroneal tendonitis, left side") and her low back symptoms, there is no allowed claim for any condition involving the claimant's lower back. Therefore, Dr. Cummings does not clearly indicate that the seated work restriction was solely based upon the allowed conditions in the claim. Therefore, the commission abused its discretion by relying on Dr. Cummings' opinion in awarding TTD compensation.

(¶ 6} The commission also argues that the lower back pain noted by Dr. Cummings is not a recognized compensable injury. According to the commission, simply because Dr. Cummings noted the claimant's lower back pain, does not indicate that the allowed ankle conditions were not the sole basis for the work restriction. Again, we disagree.

(¶ 7} Although Dr. Cummings does refer to lower back pain, that reference must be viewed in the context of his physical examinations where he noted the problems with claimant's lumbar spine, including limited motion and tenderness to palpation. His examination notes are strongly indicative of a lower back injury. Because the claimant did not have an allowed claim based upon a lower back injury, we overrule the commission's first objection.

(¶ 8} In its second objection, the commission contends that none of Dr. Cummings' C-84s or MEDCO-14s list any cause for disability other than the allowed conditions, and thus, they do not contradict Dr. Cummings' ultimate conclusion. Therefore, the commission argues that the magistrate erred in concluding that the C-84s and MEDCO-14s should be eliminated from evidentiary consideration. Again, we disagree.

(¶ 9} Although the mere presence of a non-allowed condition in a claim for TTD compensation does not in itself destroy the compensability of the claim, the claimant must meet her burden of showing that an allowed condition independently caused the disability. State ex rel. Bradley v. Indus. Comm., 77 Ohio St.3d 239, 242 (1997). Medical reports can be so inconsistent that they cannot constitute some evidence supporting a commission's decision. State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445 (1994); State ex rel. M. Weingold & Co. v. Indus. Comm., 97 Ohio St.3d 44, 2002-Ohio-5353.

(¶ 10} To the extent that Dr. Cummings' C-84s and MEDCO-14s indicate that the claimant's allowed claims independently caused the need for the seated restriction, they conflict with his November 23, 2011 examination and progress report in which the low back pain is identified as at least a contributing factor for imposing the seated job restriction. There is no allowed condition relating to the claimant's lower back. For this reason, we overrule the commission's second objection.

(¶ 11} In its third and final objection, the commission contends that the magistrate erred in concluding that Dr. Berlet's opinion is insufficient evidence to support the commission's decision. The commission's first argument in support of this objection is that relator waived any argument that Dr. Berlet's opinion was insufficient because he failed to file a C-84 or a MEDCO-14. However, the commission mischaracterizes the magistrate's reasoning in arguing that relator failed to make this argument administratively. The magistrate's reasoning is not premised on Dr. Berlet's failure to specifically submit a C-84 or MEDCO-14 form. Rather, the magistrate concluded that Dr. Berlet's opinion is not some evidence because (1) he did not offer an opinion as to the claimant's extent of disability that is retrospective of the date of his examination; and (2) he failed to offer an estimated return-to-work date or to prospectively opine as to the estimated duration of the disability. Relator did argue administratively and before the magistrate that Dr. Berlet's opinion is not some evidence supporting an award of TTD. Therefore, we disagree with the commission's contention that relator waived this challenge to Dr. Berlet's opinion.

(¶ 12} The commission also argues that Dr. Berlet's February 20, 2012 treatment note supports his opinion that claimant is TTD until, at least, she receives a new brace and until, at most, revision surgery is performed on her left ankle. Although Dr. Berlet does suggest a general timeframe of disability in his February 20, 2011 report, we agree with the magistrate that his failure to opine as to a specific period of disability renders this report insufficient to support an award of TTD.

(¶ 13} Lastly, the commission points to Dr. Berlet's April 3, 2012 report as evidence that Dr. Berlet did specify a definite prospective period of disability. However, the commission did not rely on this report in awarding TTD. Because the commission did not rely on this report, there was no reason for the magistrate to address it. Moreover, we note that the April 3, 2012 report references only a perspective period of disability following revision surgery, which had not yet been performed or even scheduled. Therefore, the November 3, 2012 report could not serve as an independent basis to support the commission's grant of TTD in any event. For these reasons, we overrule the commission's last objection.

(¶ 14} The claimant also filed objections to the magistrate's decision. In her first objection, the claimant contends that the magistrate erred in concluding that Dr. Cummings' physical restrictions were based on the non-allowed low back pain. Essentially, the claimant argues that low back pain was a secondary problem, not her primary complaint, and not the basis for the restrictions imposed by Dr. Cummings. For the reasons noted in response to the commission's first objection, we disagree. A fair reading of Dr. Cummings' November 23, 2011 report indicates that the restrictions he imposed were based in part on pain she was experiencing in her lower back. Therefore, Dr. Cummings' November 23, 2011 report does not establish that he imposed the seated work restriction based solely on the allowed conditions in the claim. Therefore, we overrule the claimant's first objection.

(¶ 15} In her second objection, the claimant contends that the magistrate erred in finding Dr. Cummings' certification of TTD is inconsistent with his medical examinations. We overrule this objection for the same reason that we overruled the commission's second objection. Dr. Cummings' various reports are inconsistent and cannot serve as some evidence to support the commission's grant of TTD.

(¶ 16} In her third and final objection, the claimant contends that the magistrate erred in concluding that Dr. Berlet's opinion is not some evidence supporting the commission's decision to award TTD. The claimant argues that Dr. Berlet's February 20, 2012 report directly linked the C-84 signed by Dr. Cummings on November 23, 2011 with his opinion that the claimant's restriction was caused solely by the allowed conditions. However, as we previously noted, Dr. Berlet's failure to opine as to a specific period of disability in his February 20, 2012 report renders his opinion insufficient to support an award of TTD. Therefore, we overrule the claimant's third objection.

(¶ 17} Following an independent review of this matter, we find that the magistrate has properly determined the facts and applied the appropriate law. Therefore, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we grant relator's request for a writ of mandamus ordering the commission to vacate the award of TTD beginning November 29, 2011 and to enter an order that denies the request for TTD compensation.

Objections overruled; writ of mandamus granted.

O'GRADY, J., concurs.

TYACK, J., dissenting.

(¶ 18} I strongly disagree with our magistrate and the majority of this panel. Instead, I agree with the view of the hearing officers at the Industrial Commission that Donna Boyd-Shawver is entitled to temporary total disability compensation ("TTD").

(¶ 19} Everyone agrees that Donna Boyd-Shawver cannot go back to her old job which required her to be on her feet for seven hours per day. The fracture of her left fibula and peroneal tendonitis which she suffered in 2009 have made that so. The pain she suffered when she put her weight on her left side caused her to try to avoid putting weight on that side. As a result, she started having problems on her right side and low back.

(¶ 20} Staples refused Donna's request for surgery to remedy her pain and referred her for an independent medical examination ("IME") by John S. Wolfe, M.D. Dr. Wolfe found peroneal tendonitis, which is an inflammation of the tendons attached to or near the fibula. This condition has now been recognized. Dr. Wolfe agreed that Donna could not stand for more than two to four hours per day based upon her peroneal tendonitis. Staples did not offer her a job where she could sit. Thus, based on the IME requested by Staples, Donna was entitled to TTD. She could not work at her old job based solely upon a recognized condition.

(¶ 21} This IME should have ended discussion of the issue of TTD, but Staples is a self-insured employer and the money it pays for TTD gets subtracted from the profits Staples realizes. Therefore, it contested the TTD issue, even to the point of filing this mandamus action after losing at all levels of the Industrial Commission.

(¶ 22} The magistrate apparently did not consider the fact that Dr. Wolfe reported that Donna Boyd-Shawver's condition indicated she was entitled to TTD, despite the indication in the district hearing officer's ("DHO") order that TTD was granted partly because of the report of Dr. Wolfe. Again, she could not do her job based on a recognized condition.

(¶ 23} The magistrate is also wrong in indicating that Dr. Berlet saw Donna Boyd-Shawver only in February 2012 and discounted the value of Dr. Berlet's report for this incorrect reason. Dr. Berlet's report indicates that he had seen Donna one year earlier and her condition was unchanged. The complaint filed by Staples acknowledges this when it alleges Donna Boyd-Shawver was "reevaluated by Gregory Berlet, M.D." on February 20, 2012.

(¶ 24} Again, the magistrate's decision includes a reference to Dr. Berlet's report which clearly indicates more than one office appointment. The part of the report excerpted at ¶ 33 of the magistrate's decision also supports an award of TTD for Donna. The report of Dr. Berlet was properly cited by the staff hearing officer as a basis for granting TTD.

(¶ 25} Further, I disagree with the magistrate about whether the low back pain needs to be separately recognized as a separate condition, but the reports of Dr. Wolfe and Dr. Berlet rely on the peroneal tendonitis, not low back pain.

(¶ 26} I would refuse to grant any writ of mandamus. If granting a writ, I certainly would not make it a full writ but ask the commission to address in more detail why the reports of Dr. Wolfe and/or Dr. Berlet support the granting of TTD. The majority of this panel adopts a magistrate's decision which is seriously flawed as to critical facts and which, in part, based upon those flaws, makes an inadequate addressing of the legal issues. As a result, the majority reaches the wrong decision about granting a writ. I dissent.

APPENDIX

Rendered on April 22, 2013

IN MANDAMUS

MAGISTRATE ' S DECISION

KENNETH W. MACKE

(¶ 27} In this original action, relator, Staples the Office Superstore East, Inc., requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order awarding to respondent Donna Boyd-Shawver ("claimant") temporary total disability ("TTD") compensation beginning November 29, 2011, and to enter an order denying the compensation.

Findings of Fact:

(¶ 28} 1. On August 12, 2009, claimant injured her left ankle while employed as an inventory controller for relator, a self-insured employer under Ohio's Workers' Compensation Laws. On that date, claimant slipped and fell while at work.

(¶ 29} 2. The industrial claim (No. 09-843191) is allowed for: "left fibula fracture; peroneal tendonitis, left side."

(¶ 30} 3. On November 23, 2011, attending physician Wayne J. Cummings, D.O., examined claimant during an office visit at WorkHealth West. Dr. Cummings issued a three-page narrative report, stating:

Current Work Status: Donna is currently working full time on modified duty.
OCCUPATIONAL HISTORY: Donna is scheduled to work 8 hours per day. Five days a week. She works first shift. She works overtime hours occasionally. Donna's job is classified as "medium" according to the DOL standard, which requires her to lift up to 50 pounds occasionally and/or up to 20 pounds frequently, and/or up to 10 pounds constantly. She performs repetitive work with her feet, back, legs and arms 8 hours per day. She stands for 7 hour(s) during her shift. She states that she has not had a similar work related injury/illness. She denies non-work related activities that could contribute to this problem. She does not work another job.
HISTORY OF INITIAL VISIT: Donna's primary problem is pain located in the left ankle. It has been about 17 months since the onset of the pain. She has noticed that it is made worse by walking. It is improved with elevation. She feels it is not improving. Her pain level is 5/10. Hurt ankle last August. Had surgery January 27 fixed tendons moving them under the ankle. Removed a bone. Has been in 2 hard cast and is still in a aircast. Still in a lot of pain. Has troubling walking. Has shooting pains in ankle. Sometimes has numbness and tingling.
PROGRES NOTE- June 23, 2011: IW here for f/u to left leg injury. Current pain level today is 5/10 and increases to a sharp pain in left ankle with certain movements. Confirmed has had no other testing or physician referrals since last time she was here. IW needs a refill on the percocet. Currently working full time on restricted duty.
PROGRESS NOTE- July 22, 2011: Here with injury to left ankle. Condition is the same as above. Pain increases through out the day. Pain level today is 5/10. Wearing a brace.
PROGRESS NOTE- August 26, 2011: Here with injury to left ankle. States she is the same. Last script has not been approved. Wearing brace. No new testing/consults/PT since last visit. Pain level today is 5/10.
PROGRESS NOTE- September 23, 2011: Here with injury to left ankle. Pain level 8/10. Still awaiting approval for surgery. Pain seems to be worsening. Patient is very frustrated.
PROGRESS NOTE- October 21, 2011: As Per IW Current meds are the same. She says that her right leg is starting to hurt with her lower back from putting all the weight on that side. No MRI or x[-]rays sin[c]e the last time she was here. She is working light duties. She is doing worse. Pain scale today is 5.
REVIEW OF SYSTEMS:
Constitutional: POSITIVE for abnormal gait, trouble sleeping.
Musculoskeletal: POSITIVE for joint pain, joint stiffness, muscle weakness.
Neurological: POSITIVE for burning sensation. Negative for ...

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